MAK KWOK HING v. SHUM KWAN FAI TRADING AS TAI HING METAL MANUFACTORY

1985, No. A3159

IN THE HIGH COURT OF JUSTICE

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BETWEEN

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JUDGMENT

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1. The plaintiff met with an accident on the 5th July 1983 whilst he was operating a power press in the factory of the Defendant. The Plaintiff had been unemployed for about three months. He was previously working. as a restaurant cook earning some $2,800 per month. In the accident, he had his left thumb squashed and severed. He spent 10 days in hospital with his left thumb re-implanted and subsequently reamputated. It is easier to understand, to describe the amputation as where the thumb joins the hand. The Plaintiff experienced vain for more than a month and he underwent 3½ months' physiotherapy treatment on 9 occasions.

2. It is agreed that the Plaintiff has incurred travelling expenses in the sum of $120, necessary tonic food $525, hospital and physiotherapy charges $172.

3. He was 24 at the time of the accident. According to Dr. Mao, the amputation has brought about 22% permanent incapacity of the whole man. The Plaintiff was a cook. In his evidence, the Plaintiff described how the left thumb was of particular usefulness to him in holding the wok and presumably tossing its contents over a stove. I shall return to the effect of loss of function later.

4. The factory inspector, Mr. Ngan was called. I should make an observation or two on his evidence before I come to consider the facts and submissions in this case. The factory inspector told the Court that he inspected machines some tune after he accident. They were identified to him as being of the same type as the one involved in the accident. He explained.why he was not requesting for an inspection of the actual machine involved. Nothing turns on his given reasons. What should be noted is: In the account he gave of the accident in his report, he said that after pressing about 10 cycles, the Plaintiff inadvertently stepped on the foot pedal. In this case, no particulars for contributory negligence are given. It is almost common ground that the allegation of contributory negligence .cannot be sustained. Counsel for the Defendant quite fairly informs the Court that the Defendant has no knowledge as to how the accident was caused, hence no questions were asked of the Defendant explicitly on the question of contributory negligence; nor was any suggestion made in that direction. Inspector Ngan's narrative of the causation of the accident is said to have been taken from the information supplied by the injured man, i.e., the Plaintiff and other people in the factory. This part of his conclusion is not sought to be taken advantage of. The source of the inspector's information was not specifically identified or disclosed. No evidence was given by the factory inspector as to whether any confirmation of that was attempted. This part of his narrative as to how the accident came about is hearsay in the extreme and has not been properly tested. For all these reasons, in achy event I would not rely on this part of his report.

5. Another comment made in the factory inspector's report is that the injured man, i.e. the Plaintiff was not a worker of the factory. He did not identify precisely the source of his information but it came, so the inspector claimed, from people in the factory other than the Plaintiff himself, though he did mention in passing, that it was also his opinion, apparently based on such hearsay. This is one of the very issues which I have to decide. I would therefore pay no regard to that comment of the factory inspector's.

6. The factory inspector, again without personal knowledge, described the sweeping arms of the machine as being deficient in the sense that they fell short of reaching both edges of the die table by about 15 cms. He was quite drawn to this disclosure, and if  I may say so, he virtually jumped to his conclusion. In my view, the inspector seemed to have placed undue emphasis on it and too readily assumed it to be the sole cause of the accident. To him, there was no necessity for making further investigation into other causes and he was content to close the matter on such allegedly defective sweeping arms. His opinion was that the accident could have been avoided with a more extensive sweep. I do not find this particularly helpful. However, I must say that his ultimate conclusion that the machinery was, in his opinion, not effectively guarded in the area between the tool and the die, cannot be wholly disregarded as entirely without substance.

7. The issues in this case can be broadly divided into two. First, whether the plaintiff was in fact employed by the defendant at the time of the accident and secondly, how the accident was caused.

8. There is much resistance to Mr. Scort's submissions on the duty of care under the Occupiers Liability Ordinance, Cap. 314. Mr.Yuen argues that he is taken by surprise on account of the lack of particulars of negligence under the Occupiers Liability Ordinance. Mr. Yuen submits that as the burden of proof in negligence against an occupier is different for a trespasser under that Ordinance, particulars must be given. Mr. Yuen is, however, prepared to concede that in all other respects, save in the Plaintiff's alleged capacity as a trespasser, the Court is concerned with the same common duty of care. Mr. Scort confines himself to the situation of an employee or invitee, and therefore Mr. Yuen's objection would seem to be irrelevant. In any case, by reason of the decisions reached in this case, it is quite unnecessary for making any profound inquiry into such submitted fine distinction. Thus, I need express no concluded view on it.

9. I will first deal with the question of whether or not the Plaintiff was employed by the Defendant at the time of the accident. According to Mr. Kwok, the Defendant's factory had much work and an order to fulfil. He described Mr. Shum Ping Nam, the brother of the Defendant also as a foreman who inter alia, kept records of work done. The Defendant agreed that his brother, Shum Senior was the foreman and as such had wide powers in his absence except for engaging or dismissing workers.

10. On the day in question, the 5th of July, 1983, Mr. Kwok brought his friend, the Plaintiff, to the factory and upon arrival sometime before 9 a.m. he told Shum Senior: "I had brought my friend here to work". The Plaintiff told the Court that he overheard Mr. Kwok say to Shum that "to day, he had brought a friend to report to work." According to Mr. Kwok and the Plaintiff, Shum Senior made no reply at all but he nodded. Mr. Yuen has pointed out that the Plaintiff himself did not refer to the nodding of Shum Senior until his cross-examination. Mr. Kwok agreed with counsel that he did not care what the response of Shum Senior was. A great many answers in this case are not very intelligible. Sometimes, they are even contradictory, if not merely inconsistent. The Plaintiff and Mr. Kwok are certainly not polished men. Both of them displayed considerable difficulty in their appreciation of the questions asked and in giving direct and relevant answers. I have borne all this in mind in assessing their credibility and reliability.

11. Shum Senior's version of the statement coming from Mr. Kwok is entirely different. He said that he was the only one sitting at the desk somewhere near the entrance and that when Mr. Kwok and the Plaintiff turned up early in the morning, what was said was, he, Mr. Kwok was bringing a friend for interview. Thereupon, he asked them to sit down and wait for the return of the Defendant.

12. The Defendant explained to the Court his alleged system of recruiting workers. Normally, he would prefer to advertise so as to ensure that his labour force would have less opportunity of grouping up against the management. He would invariably conduct an interview with all the applicants. 80% would fail. Of those accepted, one-fifth came from introduction of workers in the factory and 10% were inexperienced. He claimed that business was poor and the factory had insufficient work thus requiring no extra labour.

13. Mr. Kwok maintained that during the absence of the Defendant, the foreman would have the authority to take on new workers and that as far as he was concerned, the Plaintiff was employed, but Mr. Kwok did agree in cross-examination that he had intended to wait for the Defendant's return, that he knew the Defendant would return soon, that he did not wait because the Defendant had not returned and that the Plaintiff "had to wait for the return of the boss in order to make a decision" and he "did not know whether he would be employed or not". Mr. Kwok also acknowledged the various possible meanings of a nod. Despite all these dubious answers, he was adamant that the Plaintiff was employed.

14. As for the Defendant, he was certainly not spared from his share of conflicting answers. He gave two quite incompatible answers as regards the power of an operator or the person in charge. At one time, he agreed that he would have the power of hiring and firing workers. At another time, he seemed to have retracted from that answer and claimed that the operator or the person in charge would have no such authority.

15. The Defendant also claimed that Mr. Kwok had been personally interviewed before he started work. He confirmed with counsel that he was sure because for the interview of Mr. Kwok, he, the Defendant referred to and relied on records. Therefore, it is a little strange, to say the least, for the Defendant to claim that he  positively could remember Mr. Kwok's interview.

16. Mr. Kwok told the Court that he had worked for two weeks before any registration, but the Defendant claimed that Mr. Kwok was registered soon after his interview.

17. Mr. Shum Senior was less emphatic, and he said that he did not know whether it was possible for Mr. Kwok to start work before an interview.

18. It is convenient to turn to the evidence of Shum Senior at this juncture. I have given his version as to what Mr. Kwok said upon arrival. The other aspects in his evidence which are noteworthy are: First, he denied to be a foreman though he had signed a declaration in that capacity. Secondly, in an empty small factory when work had yet to be started, he claimed to have had no notion of what Mr. Kwok and the Plaintiff were doing. It was not suggested that his view was in any way obstructed. He, Shum Senior, explained that he was just too preoccupied with his calculations or paperwork. Further, when the accident was reported to him, he was frightened, surprised, but there is no evidence that either he or the Defendant had ever admonished Mr. Kwok for allowing a non-worker to meddle with the machinery. It is a matter of minor significance, but I wonder whether Mr. Kwok would not have had some reservation in making any report to Shum Senior as the man then in charge of the factory, if the Plaintiff had in fact been an outsider not in the Defendant's employment. Shum Senior had ample opportunity of observation. The absence of evidence of rebuke suggests that he probably saw and knew what was going on.

19. I return now to the evidence of Mr. Kwok and the Plaintiff. Mr. Kwok, having told Shum Senior that he had brought a friend to work and having been nodded in, in the words of Mr. Scort, he led his friend to a machine with which he started to and did do him a demonstration. It was not merely a demonstration, but the Plaintiff was taught how to operate it. The lesson took more than five minutes after 100 plus cycles. Having been satisfied that the operation was learned, he allowed the Plaintiff to sit at the machine and try. The Plaintiff did so, and in fact he went on practising. After more than five minutes, completing 20 odd cycles, when Mr. Kwok "turned away to fetch something", the accident occurred. Upon his return, he was told of the accident by the Plaintiff and a report was made to Shum Senior.

20. It is relevant to note that the Plaintiff was doing less than ten, probably 4/5 a minute as an unskilled workman while Mr. Kwok must have been able to stamp out more than 30 a minute for himself. The difference is over 20 a minute. At piece rate, that would mean an appreciable loss of earning. If the Plaintiff, had been unemployed, it would not have been probable, in the face of such uncertainty, for Mr. Kwok to sacrifice so long a time in teaching the Plaintiff and allowing his friend to practise at his expense. It would have been even more improbable for the Plaintiff to feel the need for wasting more time of his friend's, not just to learn but to practise a routine which, he, the Plaintiff, might not have ever been called upon to perform. Less would the Plaintiff have felt justified in continuing to trouble his friend, Mr. Kwok well knowing that it was or was near his working hours at piece rate. All this, together with Shum Senior's denial of his foreman position, his claim of ignorance of the Plaintiff's activity in the quiet empty factory, the Defendant's prevaricating answers as to the powers of the man in charge and the absence of any evidence of admonition at the time of and after the accident report is, in my view, very telling. The Plaintiff has adduced enough evidence to establish employment, but there are answers given by both himself and Mr. Kwok which are difficult to reconcile. The Defendant flatly denies any employment, but again his and his brother's evidence is evasive and unsatisfactory in more ways than one. The conduct and reaction outlined above have led me to the conclusion that the Plaintiff was probably employed by the Defendant, and I so find.

21. Next, I turn to causation. According to Mr. Kwok, normally there would be no accident for a skilled workman. He said that after an initial period of a month, income of a press operator would be in the region of $3,500 and that upon becoming skilled, as he is today, an income of $4,200 would be within his reach. From the tenor of Mr. Kwok's evidence, it was the position in which the press operator sat, that was the cause of the accident. Mr. Kwok said:

"From my personal experience, it would depend on how you put your hand in."

22. As for the Plaintiff, he testified that he sat down as invited. It was never suggested to him that he had ever left his seat. In fact, Mr. Yuen quite fairly conceded that he was in no position to put any particular situation to the Plaintiff without  instructions as to how the accident occurred or as to what contributory negligence there existed.

23. For the reasons I have given, I do not place any reliance on the observations made by the factory inspector relevant to this aspect.

24. The Defendant told the Court that there was no way in which a worker could have harmed himself if he had sat in a "correct position". Here again, the Defendant emphasised the position of a worker for that particular kind of press machine.

25. Mr. Cheng, the man in charge of maintenance and repair of machines, seemed to have attached like importance to the position of the machine operator. He suggested the possibility of the worker standing by the side of the machine as the cause of the accident.

26. Therefore, in the main we are left with two possibilities: (1) The position of the Plaintiff at the time of the accident had caused it. (2) The machine malfunctioned when the tool, without warning, came down all of a sudden.

27. The Plaintiff described how he operated the machine. His evidence is that prior to the accident he fed the die by inserting a metal sheet. He then depressed the foot pedal whereby the tool came down and struck the die. When the tool raised, he retrieved the stamped stainless steel plate from the die. Thereupon he felt his arm being touched by the sweeping arm of the power press "very slightly", and he found himself having his left thumb squashed between the tool and the die.

28. As for the position of the Plaintiff at the material time, there is no evidence to suggest that he was in any position other than in a seated position at the machine as he was instructed. No suggestion was made to the Plaintiff and no question was asked of him in respect to his position. I find that he did sit in front of the machine just before the accident after he had taken it over from Mr. Kwok.

29. The machine must have, in my view, malfunctioned for this reason: With or without any accidental stepping on the foot pedal (for which there is really no evidence), when the tool came down, the sweeping arms must have been automatically activated. If the sweeping arms had been strong enough in their sweeping strength, the hand of the Plaintiff would have been pushed aside, and the accident would have been avoided. In this analysis, the sweeping arms probably failed to function properly at the time of the accident. I accept the Plaintiff's evidence that his arm was only "very slightly" touched.

30. The Defendant refused inspection. Whatever his belief, whether honest or devious, whether proper or misguided, the Plaintiff was deprived of an inspection by a qualified professional man. The Defendant himself called no independent expert evidence and the evidence of Mr. Cheng as well as the Defendant on the function, maintenance and operation of the machine in question was sketchy, vague and generally less than satisfactory. To put it bluntly, I find such evidence wholly unimpressive. Upon the balance of probabilities, I find that it was the malfunction of the sweeping arms which caused the accident. There is no evidence that the Plaintiff ever stepped on the foot pedal, and it seems to have been accepted that without particulars it is not open to the Defendant to pursue the plea of contributory negligence. However, there is insufficient evidence to support the allegation . that the starting and stopping device was, at the time of the accident, deficient or defective.

31. I really need not go through the particulars at any great length. I find that the Defendant failed to take any or any adequate precaution for the safety of the Plaintiff whilst he was engaged on the said machine as an employee. The Defendant failed, to guard the machine in question adequately. He failed, therefore, to provide, operate or maintain any safe system of work at the time of the accident. As for alleged breach of statutory duty, I find the particulars in relation to Regulation 4 and Regulation 5 well supported and proved. I am not prepared to find that there has been a breach of Regulation 8.

32. I find all the alleged special damages proved in addition to those admitted. Item (a) is a very conservative estimate. It takes $2,800 per month throughout disregarding the subsequently increased$3,500 per month for a press operator after one month. Item (b) is suitably reduced to $17,750 on the basis of $3,500 per month, which I find proved and reasonable. There was no dispute on $400 in item (c), the sum in item (d) or item (e) in view of my acceptance of the basis for calculation at $3,500 per month.

33. I have been referred to cases for loss of thumb and/or finger. I find the case of To Kin San closest to the situation in this case, which appears at page 386, Vol. 14, Hong Kong Law Journal, 1984.

34. As for loss of amenities, pain and suffering, in addition to his misfortune the Plaintiff was highly conscious of the appearance of his left hand during the course of this trial. He has every right to be so visibly embarrassed. It is a particularly unpleasant sight. With his sensitivity, it must have been all the more a traumatic experience to have his thumb implanted only to be re-amputated. There was additional suffering following the re-amputation. Taking all into consideration, I would agree with counsel that $50,000 instead of $40,000 would be an appropriate award. There is a report from Dr. Wedderburn which is no part of the evidence in this case. It is in the bundle. I must confess that I have read it. I have tried my very best particularly during the submissions of counsel to shut out whatever impression I have gained from the contents of that report. The Plaintiff was a cook. It is common knowledge that a Chinese restaurant cook relies much on his left thumb in holding the wok and tossing the prepared ingredients over a burning stove. That is a matter which I think I can take judicial notice of. However, there is no reason why the Plaintiff cannot, given time and with some effort, learn to use his left hand for his right and his right hand for his left. Such inter-change of manoeuvre would obviously take time and determination, both in holding the wok and in, say, scaling and slaughtering fish. Further, he would possibly face the added difficulty of having to find an understanding restaurant operator to provide him with the opportunity for steady conversion. Doing the best I could, I think a year, or two would be needed for re-adjustment. All in all, it is a difficult loss to assess. I would place a sum of $20,000 for his entire future loss, principally for his actual loss in the conversion period including the time necessarily wasted in seeking out an employer who would give him the opportunity to convert. So $22,400 under item (a), $17,750 under item (b), $400 under (c), $1,250 under (d), $10,000 under (e), $120 under (f), $525 under (g), $172 under (h): it comes to $52,617. In addition, we must add $50,000 for pain and suffering, loss of amenities and the $20,000 representing his entire future loss. The total would then come to $122,617. I would allow half of 7%, i.e. 3½% interest on $52,617 from the date of service of the writ to the date of payment; 2% on $50,000 from the date of service of the writ to date of judgment. I would enter judgment in those sums with interests accordingly in favour of the Plaintiff against the Defendants. I give costs to the Plaintiff against the Defendant, such costs to be taxed in accordance with Legal Aid Regulations.

35. I indicated that I would reduce my oral judgment into writing, which I now do. The calculation is wrong by $2,000 as I took $17,750 for item (b) instead of the correct sum of $15,750. Counsel have been consulted and they agree to the amendment. The judgment will be accordingly amended under the slip rule.