KEUNG WAI MING v. YEW CHOW AND ANOTHER

1987, No. A3270

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 August the 9th 1984, the Plaintiff, Keung Wai Ming, as working on a site in Happy Valley on which was being built some residential property. This was a construction site within the meaning of the Construction Sites Regulations.

2. The Plaintiff who is now aged 41 is an experienced board fixer. His main role on construction sites was to fix boards onto other items for a variety of construction purposes.

3. On this particular date, he was employed fixing six feet by three feet planks of wood, approximately 20 millimeters thick, which were being fixed onto a wooden frame work on the second floor of a building.

4. He had been employed in this type of industry for some 15 years and for the purpose of carrying out this work on that day he was provided with a standard claw hammer about twenty inches long and two inch standard nails. His job was to hammer the nail through the plank of wood onto the wooden frame work providing the necessary shuttering for the concrete to be subsequently poured.

5. He told me he was squatting down to do this job with his face about two feet from the nail and on this particular plank had already nailed in some 7 to 8 nails approximately two feet apart. Apparently the procedure he adopted for fixing in nails was to first hold the nail and to hammer it in a short distance - he said a few millimeters - he would then remove his hand and hit the nail a blow with the hammer to drive it through the plank and into the wooden frame work.

6. He put a nail in and hit it with his hammer; something went wrong and the nail sprung out of the wood and unfortunately the sharp end of the nail pierced the cornea of his eye and has caused him serious injuries, in that he is now blind in his left eye.

7. The parties are not agreed as to the quantum of general damages and there is substantial dispute between them with regard to the special damages; they have asked me to make a decision as to liability and if I find liability then I should adjourn the question of damages to a Master if they were not subsequently agreed.

8. The Plaintiff's case is put in two ways. It is said first that there was a breach of statutory duty in that this was a construction site and the employer, the contractor, had not complied with the Construction Sites (Safety) Regulations. Regulation 42 deals with the prevention of inhalation of dust and fumes. Regulation 43 reads as follows:

"The contractor responsible for any construction site, where there is carried on any process which results in particles of material or dust being produced in such a manner as to be likely to enter or damage the eye of any workman engaged in the process, shall ensure that (a) suitable goggles, or effective screens are provided for the protection of the workman."

9. On this particular day, the Plaintiff was not wearing any goggles and there is no dispute that there were no goggles available. The Defendant says this regulation does not apply to the actual work which was being carried on by the Plaintiff. It is, however, submitted that the operation of hammering in nails into a plank of wood to attach it to other wood is a process which results in particles of material or dust being produced. In my judgment, it does not fall within that description. Regulation 43 deals with a process where the process itself give rise to material or dust being produced; there are many such processes carried out at construction sites. Here, the Plaintiff is merely hammering a nail into a piece of wood. This is one of the most common features of construction work both in the safeguard of this site and the variety of jobs where nails are put into wood. In my judgment the regulation does not apply to the work which this Plaintiff was engaged on. Mr. Spicer in reply, accepted that his submission was unlikely to succeed.

10. He says, however, secondly that the evidence suggested that there are occasions when nails are not hit properly and come out of the wood; he says that is dangerous because it can cause damage and as it is a reasonably foreseeable danger, the Defendant should have been provided with goggles although there is no statutory requirement to provide them.

11. The evidence discloses that this gentleman was very experienced in his field of work - hammering in some 400 nails a day and I have no doubt that on occasions when he hammers those nails in, they do not go properly in. It may be he might miss the nail, or hit it a glancing blow, or the nail itself is defective and it buckles, or the nail might even hit something within the wood which causes the nail not to go through the plank of wood.

12. It is not suggested here that the Plaintiff was guilty of contributory negligence, nor is it suggested by the Plaintiff that the wood which was provided was in any way defective. I find as a fact that the plank of wood as provided was perfectly satisfactory; some seven to eight nails had already been hit into it by the Plaintiff, and I find as a fact that the hammer and the nails were also satisfactory. Furthermore, this is an experienced workman, he did not require supervision or instruction; he knew exactly what he had to do. So the plaintiff's case comes down to the fact that as he was badly injured, there must be some liability. That in my judgment would make the Defendants insurers of the safety of their workmen which they are not. They have to take all reasonable steps to protect their employees on the site and in my judgment I can see no evidence whatsoever that they have failed in that respect.

This was one of those unfortunate accidents which occur whether at work or in the home. The injuries which the Plaintiff suffered are serious because the nail caused the puncture wound in the cornea. It might only have caused a small injury to his cheek, but very unfortunately it caused an injury which has led to his blindness in that eye. Whilst I therefore have sympathy for him, nevertheless, in order to find the Defendants liable, that must be in some way to blame for this accident. How then did it occur. Counsel have speculated on what might have happened. The report which was made by the Plaintiff was a late report. Mr. Poon has pointed out that the report was made a number of days after the event, so the wood has not been inspected nor has anything else; no one has come forward to say that any similar accident has ever occurred. I have no doubt that nails do come out of wood, but there is no evidence that they have caused any injury. The operation of hammering is more likely to cause injury to the hand holding the nail.

13. In my judgment on the very basic and rudimentary facts which I have been given, the probable cause of this accident was either that the nail was first inserted at a wrong angle and when hit, sprung out, or alternatively that the nail was not hit at a correct angle. These workmen work, I am sure, very fast but they are very experienced. I find on the facts that this accident was not the fault of the Defendants whether as a matter of negligence, or breach of the contract between the Plaintiff and the Defendant. I am glad to see that the Plaintiff has obtained a substantial sum of money from a compensation fund for this injury. The Plaintiff has not proved that the Defendants are liable and I dismiss his claim.