CHAN MING YAT v. YOUH ENG LAI MICHAEL t/a PRIME INDUSTRIAL CO (HONG KONG)

DCPI 201/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 201 OF 2003

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JUDGMENT

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1. This action arose out of an industrial accident on 5 June 2000.

2. At the material time, the Plaintiff was employed by the Defendant to work as a supervisor in the Defendant's workshop at Flat F, 9th Floor, 42-46 Tai Lin Pai Road, Kwai Chung, New Territories, Hong Kong ("the Workshop"). At around 6:45pm, whilst the Plaintiff was working in the Workshop, he heard some abnormal noises coming from the plastic injection moulding machine which he was operating ("the Machine"). The Plaintiff then pushed open the top rear sliding door of the Machine and found out that a screw, which was used to fix a pin in the ejector of the Machine, was loose. As the Plaintiff was reaching down with his left hand to tighten the screw, the platen of the Machine suddenly moved backwards and struck his left hand. As a result, he was injured.

3. A factory inspector of the Labour Department, Mr. Chan Tsang Tak ("Mr. Chan"), carried out an investigation after the accident. No criminal prosecution has been brought by the Labour Department against the Defendant for breach of any of the statutory provisions.

4. The Machine was used to produce plastic hangers at the time of the accident. The Machine had 5 sliding doors: the rear top sliding door, the front right sliding door, the front left sliding door, the rear right sliding door and the rear left sliding door. In the normal operation, the Plaintiff needed to open the front right sliding door and put his hand inside the front compartment of the Machine to retrieve the finished products, and such door was provided with an interlocking guard which consisted of 3 micro-switches. With the installation of such device, the platen of the Machine would not move when the front right sliding door was open.

5. At the time of the accident, the Plaintiff stood on a chair and opened the rear top sliding door to fix the screw. From the evidence, it is clear that the accident would not have occurred if either the Defendant had installed an interlocking guard in the rear top sliding door just like the one in the front right sliding door, or the Plaintiff had turned off the Machine before he fixed the screw. It is always the Plaintiff's case that the Defendant should have installed an interlocking guard in the top of the Machine, and the central issue is, therefore, whether the Defendant was guilty of breach of statutory duty or negligence for failing to provide the same.

Factual issues

6. The following facts are not in dispute:

(i) the Defendant had not provided any training to the Plaintiff relating to the operation of the Machine;

(ii) it was not common to install interlocking guard or micro-switches in the top part of such kind of machines;

(iii) the Plaintiff needed to open the rear top sliding door of the Machine to install or remove the moulds. For one to two times a month, the Plaintiff also needed to carry out some minor repair works, for example, the fixing of the screw of the ejector pin, by opening the rear top sliding door and carrying out the tasks from the top;

(iv) the Defendant had verbally reminded the Plaintiff to turn off the Machine before carrying out any adjustment, repair and maintenance works, and the Plaintiff was aware of the risk and danger of fixing the screw without turning off the Machine. Except on one or two occasions, the Plaintiff complied with such instruction; and

(v) at the time of the accident, the Plaintiff fixed the screw without turning off the Machine for the sake of convenience.

7. The parties dispute on the following matters:

(i) which mode the Machine was operating at the time of the accident: automatic, semi-automatic or manual mode? and

(ii) whether the Defendant had expressly allowed the Plaintiff to repair the Machine or to fix the screw of the ejector pin without turning off the Machine?

8. In respect of the first issue, the Plaintiff claims that the Machine was in manual mode when he fixed the screw. Obviously, the Machine would be safer in manual mode as the platen would not move automatically, but I do not believe him for the following reasons.

9. Firstly, according to the evidence of the Plaintiff, when his hand was trapped at the time of the accident, in order to free his hand, he moved the front right sliding door of the Machine which in turn caused the platen to move forward. However, according to the expert evidence of Mr. Chan, who is an independent witness and has experience in the operation of such kind of machines, the platen could not have been moved by the operation of the sliding door if the Machine was in manual mode. According to him, manual mode would normally be used when the operator was installing the mould in the Machine. As fine adjustments were needed to be made in such process, the platen could only be operated by the switch in the side of the Machine. At the time of the accident, the distance between the upper rear part of the Machine and the switch was so great that it was not possible for the Plaintiff to turn the switch to move the platen forward. On the other hand, if the Machine was in automatic or semi-automatic mode, the platen could be operated by moving the front right sliding door. Hence, given the way it operated, the Machine could not have been in manual mode at the time of the accident.

10. Secondly, the Plaintiff admitted that the Machine was in automatic mode in his declaration made to the Labour Department. According to the factory inspector who took the declaration, Mr. Chan, in order to find out the cause of the accident, he was very concerned about the mode of the operation of the Machine at the time of the accident, and so he specially asked the Plaintiff to clarify on this issue. In such case, I do not accept that he had made a mistake in recording such important fact from the Plaintiff. Further, the Plaintiff was given the opportunity to revise the contents when he was asked to put down his signature after the making of the declaration, and yet the Plaintiff chose not to do so. Hence, I do not believe the Plaintiff's evidence that the Machine was in manual mode at that time. The fact that the Machine was in automatic or semi-automatic mode, under which the platen would move by itself, might also explain why the platen moved backwards and trapped the Plaintiff's hand at the time of the accident.

11. On the second issue, it is common ground that the Defendant had expressly reminded the Plaintiff to turn off the Machine whilst the latter made any attempt for the repair work. But according to the Plaintiff, the Defendant had also given him contrary instruction, permitting him to carry out such work without turning off the Machine. Why should the Defendant have given the Plaintiff two contrary instructions? This certainly does not make a lot of sense. Further, if the Defendant had given him such permission, why had he not mentioned the same in his declaration made to the Labour Department when he answered the related questions put to him? Obviously, he should have done so to reduce his responsibility for the accident, and yet nothing was mentioned. Hence, I do not accept the Plaintiff's evidence that the Defendant had expressly allowed him to carry out repair work without turning off the Machine.

12. Based on the aforesaid, I do not accept the Plaintiff to be a reliable witness. These findings may be relevant to the court in determining the liability of the Defendant in respect of the accident, in particular on the question of contributory negligence. I therefore proceed to deal with the liability issues in the present case.

Breach of statutory duty

13. It is the Plaintiff's case that the Defendant was in breach of statutory duty by failing to ensure that the dangerous part of the Machine was effectively guarded by means of an interlocking guard in contravention of Regulations 2, 4 and 5 of the Factories & Industrial Undertakings (Guarding & Operation of Machinery) Regulations, Cap. 59 ("the Regulations").

14. Reg. 4 of the Regulations provides as follows:

"(1) Subject to paragraph (2), a dangerous part shall be effectively guarded in accordance with and in the manner provided by regulation 5.

(2) Notwithstanding paragraph (1), a dangerous part which by reason of:

(a) ......

(b) ......

(c) the nature of the work being performed,

does not give rise to any reasonably foreseeable hazard to the safety of any person present at a notifiable workplace need not be guarded as provided in regulation 5."

15. According to the First Schedule of the Regulations, dangerous parts include "closing nips between platen motions" (item 14) and "traps arising from the traversing carriages of self-acting machines" (item 17). Reg. 5 provides that an effective method of guarding a dangerous part can be achieved by an interlocking guard. "Interlocking guard" is in turn defined in reg. 2 to mean:

"a guard which is connected with machinery or plant so that the machinery or plant cannot be operated unless the guard is in a closed position, and the guard cannot be opened unless the machinery or plant is not in motion or its removal from a closed position causes the machinery or plant to cease operating forthwith".

16. Instead of injuring his hand while the platen closed, the accident occurred when the platen opened. In such circumstances, it is arguable whether the place which trapped the Plaintiff's hand was a "closing nip between platen motions" within the meaning of item 14 of the First Schedule. However, even if such part did not fall within the meaning of item 14, it was certainly a "trap arising from the traversing carriages of a self-acting machine" within the meaning of item 17, and so such part should have been guarded by an effective guard.

17. The facts of the present case are very similar to those in Lau Shun Kam v. Lock Kee Plastic Works Limited, unreported, HCA No. 4250 of 1988 (decision of Jones J. on 7 November 1989). In that case, the plaintiff was injured in an industrial accident involving a plastic injection moulding machine. The accident happened shortly after the plaintiff arrived for work. He switched on the power of the machine, removed the wire guard and installed a new mould. After carrying out a trial run, he discovered that the edges of the finished product were uneven. With the power still on, he then opened the gate which in turn opened the moulds. He climbed onto a stool in order to reach and lean over the top of the machine to carry out some repair work with a chisel or hammer probably to remove some burrs. Whilst doing so, the moulds closed, trapping his left hand.

18. The cause of the accident was unknown, but Jones J. found that the accident would not have happened if the power had been switched off or there had been an effective interlocking guard on the top of the machine which, upon its removal for repairs to be carried out, should have automatically turned off the power. Unlike the present case, the employer did not give any instruction to the injured worker to turn off the machine before carrying out any repair works.

19. Based on the said findings, the learned judge found that there was a breach of statutory duty on the part of the employer. As he was fully aware of the practice that the power was kept on when repairs were carried out, and the employer did not exercise any supervision over the work of the worker, the learned judge also found that the employer was guilty of common law negligence. No finding of contributory negligence was made in that particular case.

20. In my judgment, the same observation can be made in the present case. Mr. Lim, counsel for the Defendant, argues that it was not normal for the Plaintiff to work at the top part of the Machine, and so it was not necessary for the Defendant to provide an interlocking guard at the rear top sliding door. Apparently, this is the view shared by the officers of the Labour Department. However, according to the undisputed facts of the present case, the Plaintiff, as part of his normal operation, needed to open the rear top sliding door: (i) to install and remove the moulds; and (ii) to carry out some minor repair works, like fixing the screw of the ejector pin of the Machine. The first task was frequent and the second task was necessary at least one to two times a month. As such works were part of the normal operation and there was hazard associated with such works, the Defendant should have installed an interlocking guard to render the platen inoperative when the rear top sliding door was open.

21. There was an interlocking guard consisting of 3 micro-switches in the front right sliding door, and so there was no reason why the Defendant could not have installed a similar device in the top sliding door. In fact, Mr. Chan agreed that the installation of such device was feasible. In his testimony, Mr. Chan at one stage mentioned that the device might affect the repair work of the Machine. However, Mr. Chan confessed that he knew very little about the repair and maintenance of the Machine, and so he was not sure whether it was indeed the case. As there is no concrete evidence to suggest that the installation of the device was impracticable, the Defendant was required by the Regulations to provide such safety measure. Indeed, liability for breach of statutory duty is not generally dependent on whether it was practicable to meet the duty (see: Munkman on Employer's Liability, 13 ed., paras. 9.55 to 9.57). In any event, if the micro-switches were to affect the repair work of the Machine, reg. 5(3) allows the repair worker to remove or to render inoperative the device to carry out certain kinds of repair work, including examination, lubrication and adjustment. In such case, the effect of the safety device on the repair and maintenance of the Machine was minimal, if any.

Breach of common law duty as employer

22. In my judgment, the Defendant was also guilty of common law negligence in the present case. From the evidence, it is clear that the Defendant had not carried out an assessment of the risks associated with the work of the Plaintiff. If he had done so, he should have known that the Plaintiff had to remove the rear top sliding door of the Machine from time to time to carry out some works, and the Plaintiff might forget or, for the sake of convenience, deliberately refuse to turn off the Machine before carrying out such tasks, the latter of which actually happened before, and it was the duty on the part of the Defendant to guard against such risks (see Munkman, supra., paras. 5.80 & 5.81). In such circumstances, the Defendant should have installed an interlocking guard in the top rear sliding door of the Machine, which would render the motion platen inoperative when the door was open.

23. Further, apart from the verbal reminder to the Plaintiff, the Defendant had never provided the Plaintiff with any, let alone any safe, system of work. The Defendant merely relied on the Plaintiff to look after himself, and there was no supervision to ensure that the Machine was switched off before the carrying out of any adjustment or repair works. In such case, the Defendant was also in breach of his duty in providing a safe system of work for the Plaintiff.

24. It is common ground that the installation of an interlocking guard on the top of such kind of machines was not common, but this alone does not provide the Defendant with a justification not to install the same. As there was an obvious risk for the Plaintiff to carry out his works in the top of the Machine without such safety device, the Defendant should have installed an interlocking guard for the safety of the Plaintiff. Further, the absence of such device in other machines can hardly be said to be a recognized 'general and approved practice'. In any event, this cannot be a defence to a claim for breach of statutory duty (see: Munkman, supra., paras. 9.55 to 9.57).

Contributory negligence

25. It is trite law that once a material breach of statutory duty by the defendant was established, the standard by which the plaintiff's contributory negligence was judged would be less exacting than that used for ordinary negligence (see: Staveley Iron & Chemical Co. v Jones [1956] AC 627, The Miraflores; Miraflores v Livanos [1967] AC 826, Mullard v Ben Line Steamers [1970] 1 WLR 1414 and Li Man Yuen v Li Chung I t/a Electric Manufacturing Co. [1991] 2 HKC 230).

26. However, in the present case, the Defendant had given express instruction to the Plaintiff to turn off the Machine before carrying out any adjustment or repair works. Being a worker of some 17 years, the Plaintiff was also fully aware of the danger of fixing the screw under such circumstances, but he nevertheless chose to take such risk. In addition, the Plaintiff did not operate the Machine in manual mode before carrying out the repair work, and this made the task of fixing the screw more dangerous. In such case, the Plaintiff can be said to have chosen to take an obvious risk and to have gone beyond mere inadvertence or momentary inattention, and that his contribution to the causation of the accident was significant. Hence, the Plaintiff should be found guilty of contributory negligence in the present case.

27. Although the Plaintiff's contributory negligence was prima facie significant, the court should be cautious not to undermine the object of statutory provisions by excessive findings of contributory negligence (see: Li Man Yuen v. Li Chung I t/a Electric Manufacturing Co., supra., at. p. 238H). After considering the conduct of the Plaintiff as mentioned above, I assess the degree of contributory negligence as 30%.

Quantum

28. Shortly after the accident, the Plaintiff was admitted to the Princess Margaret Hospital. Upon admission, physical and radiological examinations showed:

(i) open fracture of the proximal phalanx of the left index finger;

(ii) dislocation of proximal interphalangeal joint (PIP joint) of the same finger;

(iii) reputure ulnar collateral ligament of the PIP joint; and

(iv) contused ulnar digital nerve and artery.

29. Emergency operation involving wound debridement and fracture fixation was performed, and the Plaintiff was discharged from hospital on 12 June 2000 with regular outpatient physiotherapy and follow-up treatments.

30. The facture of the proximal phalanx has united with mild rotational deformity. The dislocated PIP joint has some residual stiffness, and the ulnar digital nerve has not fully recovered. As a result, the Plaintiff still makes the following complaints relating to his injury:

(i) pain over left index finger;

(ii) stiffness of the left index finger;

(iii) loss of sensation over ulnar side of the left index finger; and

(iv) pain over dorsum of the left hand thereby limiting left wrist extension.

Physical examination also showed:

(i) local tenderness over dorsum of the radio-carpal joint;

(ii) various small scars in the left index finger;

(iii) deformity of index finger with angulation to the ulnar side; and

(iv) rotational deformity of distal part of the index finger leading to more severe ulnar deviation on the flexion of the index finger.

31. Based on the aforesaid medical findings, the Plaintiff's medical expert (Dr. Lam Yan Kit) and the Defendant's medical expert (Dr. Lau Man Tsang, Richard) assessed the Plaintiff to have suffered 9% and 8% impairment of the whole person respectively.

(i) Pain, suffering and loss of amenities ("PSLA")

32. It is common ground that the Plaintiff's injury cannot be put into any of the categories of injury according to the scale set out in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. After perusing the authorities submitted by the parties, I am of the view that the most relevant one is Ho Shu Yau v. Lo Siu Ling formerly t/a Chi Wo Civil Engineering Company & anr., unreported, HCPI No. 1336 of 2000 (decision of Master Yuen on 31 January 2002). In that case, the plaintiff complained of stiffness and tenderness of his left ring finger after an industrial accident. He was hospitalized for 1 day and he was assessed to have suffered 2% impairment of the whole person. An award of $120,000 for PSLA was made. In the present case, both experts assessed the Plaintiff to have suffered a higher percentage impairment of the whole person, and coupled with the longer period of hospitalization, I allow a higher award of $180,000 as PSLA for the Plaintiff in the present case.

(ii) Loss of earnings and loss of earning capacity

33. The Plaintiff was born on 11 June 1957 and was aged 42 at the time of the accident. It is common ground that his average pre-accident monthly salary was $11,500. However, due to reduction in business, the Defendant claims that shortly before the accident, the Plaintiff agreed to change the basis of calculating his salary from the former monthly basis of $11,500 to a daily basis of $383. The Plaintiff resumed working for the Defendant on 3 July 2000, and he was then paid on the daily basis. The Plaintiff ceased to work for the Defendant in May 2002, and after that, the Plaintiff worked as a lorry driver, earning initially $6,800 a month and later $9,000 a month.

34. The Defendant has engaged a private investigator to conduct a surveillance of the work of the Plaintiff on 8 May 2002, shortly before he left the Defendant's employment. According to the surveillance tape, even with the stiffness of the finger, the Plaintiff could perform his work without much difficulty. Furthermore, he did not appear to be in pain when he worked. In defence of his position, the Plaintiff claims that the surveillance tape does not show all the tasks that he was required to perform. Whilst it took him only about 45 minutes to install a set of moulds before the accident, the same task took the Plaintiff 90 minutes after the accident.

35. However, the fact remains that the Plaintiff resumed working for the Defendant only 1 month after the accident, long before the expiry of the sick leave period on 26 September 2000, and he continued to work for the Defendant for about 2 years. Apparently, the Defendant had no complaint about his work. Under such circumstances, if the injury were to have serious impact on his working ability, I do not think that the Plaintiff could have worked for the Defendant for that long. Further, the surveillance tape shows that the Plaintiff could perform most of his works with comfort and without assistance from others, and so I do not accept that he cannot resume his former employment as a moulding machine supervisor or operator. Although the Plaintiff did try to apply for similar jobs after the accident, I believe that he could not get the jobs because of reasons other than his injury. As I have mentioned above, I have great reservation about the creditability of the Plaintiff's evidence.

36. It is true that the Plaintiff's salary was reduced after the accident, but I do accept that this was caused by the accident itself. According to the Plaintiff's evidence, the Defendant only reduced his salary after the accident. In other words, the Defendant was mean to him and took advantage of his injury. If that was the case, why did the Plaintiff resume working for the Defendant so soon after the accident? Further, why did he continue to work for the Defendant for so long without any complaint? This was the case even his actual income was substantially reduced for a few months after the accident. To me, this does not make a lot of sense. According to my observation, as the Plaintiff was a long-term employee, the Plaintiff and the Defendant were in rather good term in the period shortly after the accident, and that was why the Plaintiff resumed working for the Defendant so soon after the accident. As the Defendant's business was not satisfactory, the Plaintiff voluntarily accepted a change in the basis of calculating his salary, which invariably led to a reduction in his actual income. As the Plaintiff's reduction in income was not caused by the accident itself, save as the loss of income for the one month immediately after the accident, I do not allow the Plaintiff to claim for any loss of earnings during the term of his employment with the Defendant.

37. Based on the aforesaid, I do not allow the Plaintiff to claim for any pre-trial or future loss of earnings. However, I agree that this is an appropriate case for the court to make an award for loss of earning capacity in accordance with the principle set out in Moeliker v. A. Reyrolle & Co. Ltd. [1977] 1 WLR 132. Taking into account the residual pain and stiffness of the Plaintiff's finger, there is a real risk that, at some future date during the Plaintiff's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. Although the Plaintiff has not included such a claim in the Statement of Special Damages, Mr. Lim has no objection for the court to make such an award in lieu of the claim for loss of earnings. Given the Plaintiff's disabilities, I award a sum of $100,000 under this head of damages, which is roughly equivalent to 9 to 12 months of the Plaintiff's post-accident income. For the loss of income for the month immediately after the accident, I award a sum of $9,958 ($383 x 26 days).

(iii) Other special damages

38. The Plaintiff claims a sum of $5,000 as medical expenses, but the Defendant is only prepared to accept a lesser sum of $3,000. According to the receipts produced by the Plaintiff, the total amount for such expenses is about $2,700. Allowing some expenses which may not be supported by documentary evidence, I allow the Plaintiff to claim $3,000 under this head of damages.

39. For the traveling expenses, the Plaintiff cannot tell the court exactly how he arrives at the sum of $5,000. In such case, I only allow a claim of $2,500 for such expenses. On the other hand, in the absence of supporting documentary evidence, I allow the Plaintiff a conventional sum of $3,000 as tonic food expenses.

40. Based on the aforesaid, I assess the quantum of the Plaintiff's claim as follows:

(i)	PSLA	:	$ 180,000
(ii)	Loss of pre-trial earnings	:	$ 9,958
(iii)	Loss of earning capacity	:	$ 100,000
(iii)	Medical expenses	:	$ 3,000
(iv)	Traveling expenses	:	$ 2,500
(vi)	Tonic food expenses	:	$ 3,000
	Sub-total	:	$ 298,458
(Less: 30% contributory negligence ) Total		:	$208,920.6

41. I grant judgment in favour of the Plaintiff accordingly. The Plaintiff is also entitled to interest:

(i)	on the sums of PLSA and loss of earning capacity, after deducting 30% for contributory negligence, at the rate of 2% per annum from 7 May 2003 to the date hereof and thereafter at judgment rate; and
(ii)	on the other sums, after deducting 30% for contributory negligence, at the rate of 4% per annum (half the existing judgment rate) from 5 June 2000 to the date hereof and thereafter at judgment rate.

Credit must be given to the sum of $148,800 received by the Plaintiff in the related employees' compensation proceedings.

42. I also make an order that the Defendant do pay to the Plaintiff the costs of this action. The order in respect of interest and costs is a nisi order. Unless there is any application to vary the order, such order will be made absolute 14 days after the date of the handing down of this judgment.

43. Finally, I must express my gratitude to both counsel for their able submissions and the assistance that they have provided to this court.