WONG KAM MAN v. WANG TAT PAPER PRODUCTS FACTORY AND ANOTHER

1989 No. A1862

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. On 28th October 1987, the Plaintiff, whilst employed by D1 at D1's printing factory, suffered injury to his right hand whilst operating a machine manufactured and sold by D2 to D1. The Plaintiff claims damages against both Defendants and D1 seeks third party relief against D2. D2 did not appear at the trial despite having been warned. I have been asked to decide liability only and, if established, quantum will be decided by a Master.

2. The Plaintiff was almost 23 when the accident occurred. He had previous experience as a printing worker and had been employed by D1 for some 8 months prior to the accident.

3. It is common ground that the machine in question was manufactured without a guard and no guard was put on it by D1. No instruction manual came with the machine and no advice was given by D2 as to how the rollers could be cleaned with safety.

4. At about 12.45 p.m. on the day in question, the Plaintiff decided to clean the rollers of the machine. He says that they were covered with ink and were rusty and so he decided to clean the rollers with sandpaper. Photographs are in the bundle which show the machine. The Plaintiff had climbed onto the feeding table and was squatting thereon whilst cleaning the rollers with the machine turned on.

5. At some point, another worker entered the room and the Plaintiff saw a shadow which momentarily distracted him and at that moment, his hand got caught in the cylinder and was dragged in by the inward motion of the roller. He screamed and someone turned off the machine and then rotated the rollers in the opposite direction to release his hand.

6. The Plaintiff told me that the machine had never been provided with a guard. He also said that he had never been given any instructions as to how to clean the machine. He said that he cleaned the machine whilst it was on because it was easier and more efficient to do so that way. Had he cleaned it whilst turned off, he would have had to keep getting off the feeding tray and go to the rear and turn the rollers manually. This would have taken a very long time. He tells me that during the 8 months he was employed by D1, he had cleaned the machine this way about 30 times and had been seen by D1 doing this on about 10 occasions, including the very occasion of this accident.

7. As to the day in question, he said that whilst he was cleaning the machine, D1 walked past and said that he should be careful:

8. D1 gave evidence and said that during the initial interview with the Plaintiff he specifically told him that he should not clean the machine whilst it was switched on, and that the rollers should only be moved manually. He denied that thereafter he had ever seen the Plaintiff cleaning the machine in the way in which he cleaned it on the day in question.

9. On the day in question, D1 says that he saw the Plaintiff and another worker standing at the rear of the machine with the power switched on. He then says he turned the machine off. When asked why, he says that he responded "when you clean machine you must not switch on the machine". The Plaintiff then allegedly said "Boss I am not frightened". D1 then went to his office and shortly thereafter Miss Chung came running in and told him that the Plaintiff had been injured.

10. It is clear that there is a substantial conflict of evidence as between the Plaintiff and D1. D1 called Miss Chung in the hope that she would confirm substantially his recollection of events. In fact, she did no such thing and on balance, I find her evidence more supportive of the Plaintiff's case than that of D1.

11. Miss Chung was, in 1987, a clerk employed by D1, but is no longer so employed by him. It was about 12.00 noon and she was waiting for lunch boxes to be brought in. At that time, the Plaintiff was cleaning the machine. She told me that the Plaintiff was squatting on the feeding tray and cleaning the roller. At that point, she recollects D1 coming in and he said that it was dangerous to clean the machine in this way. The Plaintiff said that he would soon be finished and D1, without more ado, went to his office.

12. It is perfectly plain from Miss Chung's evidence, which I accept, that D1's warning related to the fact that the Plaintiff was squatting on the feeding tray rather than cleaning the roller with the machine on. She agreed in cross-examination that D1 actually said "Do not squat - it's dangerous". What is more important is that Miss Chung did not support D1's evidence that he turned off the machine.

13. In any event, D1's evidence is rather strange because he puts the Plaintiff at the rear of the machine cleaning the roller. The significant thing about this is that the rear rollers, unlike the front rollers, rotate in a direction which would not have drawn the Plaintiff's hand inwards.

14. I far prefer the Plaintiff's version of events supported as it is to a large extent by Miss Chung. I find that the Plaintiff was squatting on the feeding table cleaning the front rollers when D1 walked by and merely said be careful. He did not turn off the machine nor did he tell the Plaintiff not to clean the rollers when the machine was on. Further, I am satisfied that D1 gave the Plaintiff no instructions as to how to clean the machine and I am further satisfied that on several occasions D1 had actually seen the Plaintiff cleaning the machine in the way he did on 28th October 1987. Where D1's evidence conflicts with the evidence of the Plaintiff and Miss Chung I reject his evidence. I did not find D1 a totally satisfactory witness and I am quite satisfied that his evidence was coloured by the fact that, because of his conviction, his insurers are not standing behind him in relation to the common law claim.

The Claim Against D1

(a) Breach of statutory duty

15. On 11th March 1988, D1 was convicted of the offence of failing to guard effectively a dangerous part, namely the in-running nips between the rotating rollers of the machine and he was fined $1,000.00. This was an offence contrary to Regulations 4 and 13 of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations.

16. The conviction is admitted but its relevance is denied.

17. As any guard which had been fitted would have had to be removed for the purpose of cleaning the rollers, I fail to see how it can be said that the breach of statutory duty was in any way causative of this accident.

(b) Breach of contract/negligence

18. The main allegation here is a failure to provide a safe system of work. The Plaintiff relies upon a lack of any instructions in, or supervision of, the cleaning process.

19. There is no doubt in my mind that cleaning these rollers with the machine on is inherently dangerous and this is borne out by the accident itself. Cleaning the front rollers manually was quite impossible unless two men were assigned to the task - one to turn the rollers when required and the other to clean.

20. The Plaintiff called Mr. Evans, an expert in industrial safety. He told me that these rollers were made of carbon steel and were liable to rust. Normally, he said, these rollers are made of stainless steel or chromium. The Plaintiff said that they rusted quite frequently, hence the need to use sandpaper and clean frequently.

21. Mr. Evans suggested three possible ways in which the accident could have been avoided. Firstly, if the rollers had been manufactured of stainless steel or chromium, they would not have rusted and all that would have been necessary was the occasional wiping away of ink. Secondly, the rollers could have been turned manually. Thirdly, Mr. Evans suggested that a very simple sanding device could have been used to place the sandpaper on the rollers whilst the hand holding the device would be kept away from the rollers. He provided us with a diagram of such a device which was attached to his report. He told me that he had seen such a device in use in the United Kingdom some 20 years ago, but he said quite frankly that he had not seen anything similar in use in Hong Kong.

22. I accept that if one is using sandpaper to get rid of rust on the rollers, it is far more efficient to have the machine on and the rollers moving so as to get a regular and even finish. On this basis, the suggestion of some sort of simple device which would hold the sandpaper onto the rollers whilst keeping the hand holding it away from the rollers would have been a cheap practical answer to this problem. There are far too many accidents at work in Hong Kong. There are far too many accidents of this nature. Accidents will not stop unless and until employers properly apply their mind to ways in which these accidents could be avoided. Mr. Evans' suggestion is so simple and so obvious that I cannot understand why such a device is not regularly used in similar circumstances. I have to ask myself whether I am applying too high a standard to D1 in requiring him to have come up with something like this. At the end of the day, I think one has to look at it from a different standpoint. It was the obligation of D1 to provide a safe system of work. He did absolutely nothing to ensure that there was a safe system and gave no instructions whatsoever as to how these rollers, which were liable to get rusty quite frequently, could be cleaned. Mr. Evans' suggestion is just one way in which it could have been done. I do not think it is an unreasonable step to have taken.

23. However, if I were wrong in holding that it would have been reasonable to have provided such a device, then it is clear to me that any reasonable employer would, and should, have instructed his employee not to clean the rollers when the machine was on and would have ensured that in relation to the front rollers, one person turned the roller manually while the other held the sandpaper to the rollers. Had this simple rule been introduced, this accident would not have happened. I accept that this was a slower process, but there was evidence before me that this machine was not being used all of the time and thus such a procedure could have been introduced without in any way affecting productivity.

24. I am quite satisfied that D1 was in breach of his duties to the Plaintiff and was negligent. He should have supplied instructions and implemented a safe system of working as set out above. The Plaintiff clearly is entitled to recover against D1.

Contributory Negligence

25. The Plaintiff was an experienced printer and must have been aware of the dangers of what he was doing. At the crucial time, he was distracted, but nevertheless left his hand in the vicinity of the rollers. The Plaintiff could have used the more laborious method of manually turning the rollers, but he decided not to do so. In my judgment, the Plaintiff cannot escape some responsibility for this accident. The major blame, however, must rest with D1 for failing to take any steps to instruct the Plaintiff how he could have cleaned the rollers without danger and further ensuring that such system was implemented. I assess the Plaintiff's share of blame at 20%.

Plaintiff's Claim Against D2

26. The pleaded allegations against D2 are that he

(a) failed to supply an operation manual showing how to clean the machine properly;

(b) failed to design the machine so as to enable the feed chain and feed pegs to be stopped whilst workers were on the top of the printing table;

(c) failed to so design the machine so that the rollers could be reversed whilst the machine was being cleaned;

(d) failed to provide a special safety guard which could be fitted onto the machine whilst cleaning was being undertaken, such guard being designed so that fingers or hands could not be drawn into the machine;

(e) failed to provide the machine with a special safety guard which could be used during the cleaning of the machine to which was affixed a special sanding device; and

(f) failed to use non-rusting materials and/or corrosion resistant surface finishes and thus obviating the need for rusty rollers to be cleaned.

27. All I know is that D2 manufactured this machine and I understand that it was a copy of a Japanese machine. I have had no evidence as to the negotiations leading to the contract by which D1 ordered the machine from D2. I do not know the terms of such contract.

28. I accept that, because it was manufactured without a guard, it was a machine which would immediately have been in contravention of the Regulations. However, the fact remains that it could have been cleaned manually which would not have caused any risk. To clean this machine, any guard which had been fitted would have had to be removed. Further, the statutory duty is placed upon the proprietor of the industrial undertaking, namely D1, and not D2. D1 used the machine which did not have a guard and should have taken steps to ensure that his statutory obligation was being complied with.

29. I have some difficulty in seeing how it can be said that this accident was caused by D2's negligence. Once the machine was delivered to D1, it was up to him to ensure that it was used in such a way that it would not cause injury to operatives employed by him. This is not one of those cases where the machine was inherently dangerous in the sense that anybody using it would have been injured by reason of some inherent defect. This machine could be cleaned manually without danger, but unfortunately this did not happen.

30. In my judgment, the Plaintiff's claim against D2 fails, and it must therefore follow that D2's third party proceedings against D2 also fails. I should add that D1 issued third party proceedings against D2 first, and then the Plaintiff added the third party as a 2nd Defendant. All that may be relevant to the questions of costs with which I will deal after counsel have had an opportunity of considering this judgment.

31. It follows therefore that I find that D1 is liable to pay damages to the Plaintiff for the injuries which he has suffered, but that there must be a deduction of 20% on account of the Plaintiff's contributory negligence. The order I make is that there will be judgment for the Plaintiff against D1 for damages to be assessed in accordance with the terms of this judgment. I will hear the parties on costs and any consequential matters in due course. The Plaintiff's claim against D2 is dismissed and the third party proceedings against D2 are likewise dismissed.