XCHRX WAI YIN WA v. LAMINATE ENTERPRISES LTD.

HCPI 514/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 514 OF 1997

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J U D G M E N T

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1. This is a claim for damages arising out of an industrial accident which occurred on 24 May 1994 when the Plaintiff Madam Wai Yin Wah was injured in her right hand and forearm. The Plaintiff was at the time employed by the Defendant company as a general worker.

2. The Defendant company was in the business of producing wall-papered partition boards for office use. One stage of the production process involved adhering wall papers onto wooden boards by way of a laminating machine when workers would manually feed the wooden boards through electrically operated rollers during which liquid glue is applied through the nip formed of two rollers on to the surface of the boards. The boards, which by then had become coated with glue, would be transferred to a different section of the machine in the production line where the wall paper would be pressed onto the surface of the boards. At the end of each working day, the rollers had to be cleaned with water and wiped dry with a towel by a worker. Madam Ng Kwai Yip who appeared as a witness for the Plaintiff, was responsible for cleaning the rollers after each production run. For some two months prior to the accident she was assisted by the Plaintiff whose duties included fetching water used for the cleaning. It is common ground that the Plaintiff was not involved in the actual cleaning work herself.

3. On 25 May 1994 Madam Ng was on sick leave. On the previous day Madam Hung Fan Bun, the factory supervisor told her that the rollers had to be cleaned in a particular manner. It was the Plaintiff's understanding that she was expected to clean the machine if Madam Ng was not available. When Madam Ng did not turn up for work the Plaintiff proceeded to clean the machine at the end of the production run.

4. While mopping dry the rollers with a towel, the Plaintiff's right hand was caught and drawn in by the running nip formed by the two rollers and her right hand and forearm were injured as a result. She was taken to the Kwong Wah Hospital on the same day where she received medical treatment. She is still suffering from the effects of the injury.

5. The Plaintiff's claim is for damages for breach by the Defendant of the implied terms of her contract of employment and/or negligence. The Plaintiff also alleges that the Defendant was in breach of Regulation 25(1) of the Factories and Industrial Undertakings Regulations and that the Defendant had failed to discharge the Common Duty of Care under the Occupiers' Liability Ordinance.

6. The parties are before this Court on the issue of liability and there is the further issue of contributory negligence if the Defendant is held liable.

7. The claim is contested by the Defendant on the basis that it had never been part of the duties of the Plaintiff to clean the rollers and that she was never instructed to take up the cleaning duties of Madam Ng. Madam Hung the factory supervisor whose statement was admitted as evidence at the trial also gave oral testimony.

8. Madam Ng gave evidence for the Plaintiff. She told the Court that she started working with the Defendant company in 1991 as an assistant to her predecessor, a male worker whose duties included operating and cleaning the machine. When he left the company Madam Ng took over his duties. She said she acquired her cleaning skills through repeated daily observations of her male colleague and she never received any formal training by the Defendant company nor had she been explained the potential dangers of cleaning the machine while the rollers were in motion. I have no reason to doubt her evidence.

9. The Defendant's factory was a small operation and it was unlikely that it would allow itself to suffer a suspension of the production line when a particular worker was unavailable. As the assistant to Madam Ng, it must have been the case that the Plaintiff was expected to take up Madam Ng's duties when Madam Ng was not available. This is consistent with Madam Hung telling the Plaintiff on 23rd May that she was to clean the machine in reverse mode. I do not accept Madam Hung's evidence that the company never expected the Plaintiff to clean the rollers or that she had never, either before or on the day of the accident, required the Plaintiff to clean the rollers When Madam Ng was absent.

10. It is not in dispute that the Plaintiff did not have hands-on experience in cleaning the rollers. If the Plaintiff was never expected to do cleaning duties, I find it surprising that Madam Hung never stopped the Plaintiff from so doing when she noticed the Plaintiff cleaning and wiping dry the rollers. What Madam Hung did at the time was only to stop the machine and told the Plaintiff that rollers should be wiped dry with the power off. With no one else around except the Plaintiff, this must have been taken by the Plaintiff as approving the Plaintiff to continue with her cleaning duties albeit with electrical power off. I do not think it is open to the Defendant to argue that Madam Hung never required the Plaintiff to clean the rollers. Moments after the instruction the accident happened when Madam Hung left to attend to other matters.

11. On the evidence before this Court I find that the Defendant company had not provided proper training to the Plaintiff in operating and cleaning the machine. There were never any clear instructions to the Plaintiff that she should not clean the rollers. It is a case where the Plaintiff was left firstly, to observe how Madam Ng used to clean the rollers and secondly, to improvise her own cleaning procedures should she be required to assume such duties. It is the uncontested evidence of Dr Greene that the practice of cleaning the rollers while they were in motion was unsafe. That being the case the Plaintiff nevertheless allowed to continue with her cleaning activities without supervision despite the obvious potential danger.

12. This is a clear case where the accident could have been prevented had the Plaintiff been properly trained and supervised. I find that the Defendant company is liable to the Plaintiff in negligence and for breach of implied term of the Plaintiff's contract of employment. Further, I find that the Defendant was in breach of Regulation 25(1) of the Factories and Industrial Undertakings Regulations, Cap. 59 for failure to ensure that the machine in question should not be cleaned by any woman while in motion.

Contributory Negligence

13. Counsel for the Defendant submitted that the Plaintiff had contributed to the accident as a result of her own negligence. It was said that even if she was instructed to do so, she must have realised that cleaning the rollers was a dangerous job and she had failed to exercise basic common sense required of a worker when facing obvious danger.

14. The line of cases cited in support of this argument were accidents in which the injured workers were acting contrary to specific instructions of the employer (Leach v Standard Telephone & Cables Ltd. [1966] 2 All ER 523, or the worker departing from established standard practice (Williams v Sykes & Harrison Ltd. [1955] 3 All ER 225 and Hodkinson v Henry Wallwork & Co., Ltd. [1955] 3 All ER 236). Other instances where the Plaintiffs were held to have contributed to their own injuries were cases where the plaintiffs were experience workers who had disregarded obvious hazards. (Gunter v John Nicholas & Sons Ltd. [1993] PIQR 67; Boyes v Carnation Foods Ltd. 1985 S.L.T. 145 and Anderson v Thames Case Ltd. 1987 S.L.T. 564). I do not think the authorities cited by the Defendant assist him in any way.

15. The Plaintiff in this case was neither given proper instruction nor training in the work she was expected perform. At the time of the accident she had been employed by the Defendant company for only two months so that it cannot be said that she was 'experienced' in any sense of the word. The Plaintiff impressed me as a rather simple minded person who was willing and anxious to perform the cleaning duties which would otherwise have been the job of Madam Ng. It would not be right to hold her liable for her own enthusiasm in doing something which she had received no training at all.

16. I find that the Plaintiff was not negligent and had in no way contributed to her injuries.

17. I give judgment for the Plaintiff on liability with costs. The Plaintiff's own cost is to be taxed in accordance with Legal Aid Regulations. The case is adjourned before a Master for assessment of damages.