CHAN HUNG HOI v. POLYPROPYLENE ALLIANCE LIMITED

LA No LA/K/M 3335/83 (FY)

1986, No A2709

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The plaintiff claims damages for injuries to his right index finger which he sustained when operating a cutting press.

2. The accident occurred at the defendant's factory premises on the 23rd July 1983 when the plaintiff was 16 years of age.

3. It was his case that at the material time he had sought and obtained employment with the defendant for the period covered by his school holidays.

4. About a week prior to the accident he had been working as a packer.

5. He said that after working in that capacity for some 7 days he was told to take over the operation of a cutting press. The machine is illustrated on page 23 of the agreed bundle.

6. His evidence was that he was given some five minutes instruction on how to operate the machine and that the manager (DW2) had then performed two cuttings by way of demonstration. He said that Mr Cheung (DW2) had then got him to use the machine once which he did; and was then told to carry on by himself.

7. His job was to feed piles of plastic sheets into the machine and position them under the reciprocating cutter blade.

8. When all was ready he would operate the foot pedal causing the blade to descend and cut the plastic sheets.

9. The plaintiff said that after operating the machine for about 10 minutes he discovered that the blade would not always descend after one pressure on the pedal. To make the blade operate he would sometimes have to press the pedal twice.

10. 0n other occasions he would press the pedal once and the cutter would descend twice.

11. After experiencing this erratic working of the machine he said that he had reported the matter to Mr Cheung. Mr Cheung he said had then tinkered with the press for about five minutes, told him that it was alright and left the plaintiff to continue his work.

12. The plaintiff had then he said continued to operate the machine for 2 more movements.

13. While he was preparing a pile of bags for cutting on the work table the blade descended suddenly and without his pressing the pedal and crushed his right index finger.

14. Mr Ng the then factory Inspector who investigated the accident exhibited his inspection report.

15. He had found that the dangerous part of the machine, that is the reciprocating cutting knife of the press was totally unguarded.

16. His investigation led to the defendant being convicted under Regulation 4(l) of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations.

17. Regulation 7 provides "A young person shall not work at or operate any machine specified in the Fourth Schedule unless he has been fully instructed as to the dangers arising in the use of the machine and the precautions to be observed, and he has either been given training to the extent that he is proficient in work at and the operation of the machine. Or he is under supervision by a person who has knowledge of and is experienced in work at and the operation of the machine.

18. It was the opinion of the Inspector that the accident was attributable to a transient malfunctioning of the machine and that had there been a proper guarding of the cutter no such accident would have been possible.

19. The defendant gave evidence. It was his case that he employed the plaintiff as a permanent worker, having refused to engage him simply for holiday work. He said that on hearing this the boy and his mother had then informed him that the plaintiff had left school and wanted full time employment.

20. He said that he had noticed the plaintiff behaving in a restless and inattentive manner while operating the machine and that he had admonished him telling him to be careful lest he should cut his finger.

21. He conceded in cross-examination that there was no regular maintenance of the cutting machine.

22. The defendant's factory manager, Mr Cheung was called. He said that on the day before the accident he had carefully explained to the plaintiff how to operate the machine safely. He had he said given him instruction for about half an hour and had then watched over the plaintiff to see him use the machine by himself for some twenty operations.

23. Having heard all the evidence I find as a balance of probabilies that the plaintiff was a truthful and reliable witness.

24. I did not accept for one moment that he was given proper instruction in the use of the machine.

25. I found the version given by the plaintiff to be far nearer the truth; that is that the instruction was brief and cursory.

26. Clearly on the evidence the defendant was in breach of his common law duty of care towards the plaintiff.

27. In my view, the Factory Inspector was perfectly correct in saying that the cause of the accident was due to a transient malfunction of the machine.

28. In the light of the evidence it appeared that a machine would only be rectified if it happened to break down. Had there been proper maintenance of the machine it is highly unlikely that this accident would have occurred.

29. I find also that the defendant was in breach of his statutory duty to fence the dangerous part of the machine and so provide a safe system of work for the plaintiff.

30. I find no contributory negligence on the part of the defendant and hold the defendant to be wholly liable for the accident.

Quantum

31. At the time of the accident the plaintiff was 16 years of age. His right index finger was crushed in the machine. The end of the finger was surgically amputated leaving the finger 1½ cm shorter than his left index finger.

32. The plaintiff is right handed. Dr Wedderburn assessed the disability as related to earning loss to be 7%.

33. The plaintiff intended to continue school after his discharge from hospital.

34. He continued his studies and completed Form V. On leaving school he took a course in Marine Craft at the Hak King Wong Technical College.

35. In 1985 he joined Tsing Yee Island Dockyard as an apprentice. His apprenticeship is due to expire in December of 1988.

36. He is currently attending evening classes in Marine Craftmanship.

37. He is obviously an intelligent and well motivated young man.

38. He finds himself handicapped particularly if he has to use a screw driver. He finds it difficult to type and use a computer.

39. He used to be a bowls player but now can no longer play properly because of the shortened right index finger.

PSIA

40. On the authorities cited and allowing for inflation I think that a reasonable award would be in the region of $40,000 and I award that sum.

Loss of Earning Capacity

41. Clearly the injury to his finger has disadvantage him in the labour market to some extent.

42. However, he is I think, an intelligent and well motivated apprentice. He is anxious to suceed in his career and is pursuing a course of Marine Craftmnship in his free time.

43. In my view it is probable that as time goes on he will be well suited to supervisory work and will not be so dependant on his manual dexterity.

44. I bear in mind the authorities cited and allowing for inflation award a sum of $85,000.

45. The special damages are not in dispute and I award these as claimed in the sum of $4,578.

46. I therefore enter judgment for the plaintiff in the sum of $117,941.

47. I will hear counsel on the matter of costs.