MAK WOON KING AND ANOTHER v. WONG CHIU t/a WONG CHIU KEE TIMBER

CACV 56/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 56 OF 2000

(ON APPEAL FROM HCPI NO. 385 OF 1998)

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J U D G M E N T

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Ribeiro JA :-

1. This is the judgment of the court.

The accident

2. On 13 June 1999, Chu Kat Hing ("the deceased") became the unfortunate victim of a fatal accident. He was at the time employed by the defendant at the defendant's sawmill and was working on a circular saw cutting timber into planks and battens for use in the construction industry. He had been a sawyer for some 15 years before the accident.

3. The facts relating to the occurrence of the accident are not in dispute. Deputy High Court Judge Woolley has set them out in his judgment as follows :-

"(The deceased) on the day in question was working as usual with his brother-in-law Mok Shu Cheong as a team, his function, as the senior of the two, being to align the timber and feed it into the circular saw. Mr Mok then caught hold of the two parts of the wood after it began to pass through the saw, pull them towards him and keep them steady until the wood was completely cut through.

On the day in question, the wood they had to cut to size had an uneven edge and they first had to cut a narrow strip off one side before cutting it into the size required. While in the course of feeding the wood past the saw, a defect in the wood caused the strip being cut to split and break into two parts. Mr Mok already had hold of the first part as it came towards him, but the second, longer, part, as it came free of the piece of timber on passing through the saw, was caught by the saw and thrown upwards against the guard over the saw and backwards, striking the deceased in the chest. The end of the wood pierced his chest rupturing his heart, from which he died almost immediately."

The Judge found that the accident happened because two safety devices forming part of the circular saw had not been properly adjusted. The teeth of the saw were rotating in the direction of the deceased. The safety devices, consisting of a riving knife and a top guard, were designed to prevent detached pieces of timber from respectively coming into contact with the saw and getting beyond the ambit of the guard. In the present case, their lack of proper adjustment enabled a broken piece of timber to be caught in the saw's teeth and propelled towards the deceased with fatal results.

4. The Judge described the riving knife as :-

" ...... a curved metal blade, fixed firmly below the surface of the bench, and extending upwards in front of the saw blade and curving in the same direction, the purpose of which is to keep the cut ends of the wood separate as they emerge from the saw, so that they cannot touch the blade and be deflected off it."

He described the top guard as "a semicircular hollow metal guard, which could be lowered over the saw."

The statutory duties

5. Under the Factory and Industrial Undertakings (Woodworking Machinery) Regulations (Cap 59), statutory duties are imposed both on the proprietor of an industrial undertaking and on employees working in such premises in relation to the provision and use of the abovementioned safety devices.

6. Two relevant duties are imposed on proprietors. The first is to be found in regulation 10(3) which provides as follows :-

"(3) Behind and in direct line with the circular saw there shall be a riving knife, which shall ......

(b) be strong, rigid and easily adjustable;

(c) be so positioned that the edge of the knife nearer the saw shall form an arc of a circle having a radius not exceeding the radius of the largest saw used on the bench;

(d) be maintained as close as practicable to the saw, having regard to the nature of work being done at the time, and, at the level of the bench table, be so positioned that the distance between the front edge of the knife and the teeth of the saw does not exceed 15 millimetres;

......

(f) for a circular saw of a diameter of 600 millimetres or more, extend upwards from the bench table to a height of not less than 250 millimetres."

The circular saw in the present case had a diameter of 610 millimetres.

7. Secondly, regulation 10(4) imposes a duty on the proprietor as follows :-

"(4) The top of a circular saw shall be covered by a strong and easily adjustable guard, with a flange at the side of the saw furthest from the fence; and such guard shall-

(a) be kept so adjusted that the flange shall extend below the roots of the teeth of the saw;

(b) extend from the top of the riving knife to a point as low as practicable at the cutting edge of the saw."

By regulation 19, the following duty was imposed on employees :-

"a person employed on a wood working machine shall ..... use and maintain in proper adjustment the guards provided in accordance with these regulations ..... except when, owing to the nature of the work being done, the use of the guards or appliances is rendered impracticable."

It is apparent from these duties that a circular saw is regarded as a dangerous piece of machinery that must be fenced off to prevent operators coming into contact with it and to prevent materials from being dangerously propelled out of the rotating saw.

8. A factory inspector found that the riving knife was set at a height of 14.5 cm when under the regulations, for a saw blade of the relevant size, it should have been set to a height of at least 25 cm above the saw bench surface. The top guard was found to have a 4 cm clearance from the top of the circular saw when under regulation 10(4)(a), it should have been lowered to a level below the roots of the teeth of the saw.

9. It was therefore clear that the employer defendant was in breach of his statutory duties mentioned above. He pleaded guilty to offences against the abovementioned regulations and was fined $40,000.

The Judge's findings on liability and contributory negligence

10. The Judge found that the defendant was liable in tort for breach of statutory duty. He was also found to be in breach of his common law duty of care to the deceased in failing to provide and maintain a safe system of work.

11. In reaching his conclusion, the Judge made the following findings :-

(1) The operation of the saw was under the immediate control of the deceased, who was responsible for changing the saw blades and making any needed adjustments to the riving knife and top guard.

(2) The deceased was paid on a piece rate basis and this arrangement may have provided a temptation not to comply with the regulations so as to avoid restricting the flow of work and so a reduction in earnings.

(3) The defendant was well aware of the way his employees worked.

(4) The defendant had given no instructions as to safety and did not adequately supervise the work, leaving it to the workers to decide for themselves how to carry it out.

(5) The guard had been set too high throughout the day and the defendant's evidence that he had seen the machine that morning with the guard covering part of the saw teeth was rejected.

(6) Although the defendant had safety leaflets in the office he had not shown them to the workers, saying that "workers never need them".

The Judge gave judgment for the plaintiffs but found that the deceased was guilty of contributory negligence to the extent of 40%.

The damages awarded by the Judge

12. The Judge made awards in respect of bereavement, loss of accumulation of wealth, funeral expenses, pre-trial loss of dependency and the post-trial loss of dependency of the deceased's parents. None of these heads of award are challenged.

13. The Judge also made awards for post-trial loss of dependency in respect of the deceased's family based on a multiplier for 12 in respect of his widow and multipliers of 5, 6, 8 and 12 in respect of his respective children. Overall, the Judge awarded the following sums :-

Pre-trial loss of dependency	$ 494,620.00
Post-trial loss of dependency	$ 710,309.00
Loss of accumulation of wealth	$ 890,103.00
Bereavement	$ 70,000.00
Total	$ 2,165,032.00

After reduction by 40% for contributory negligence, this came to $1,299,010.20 and, after further reduction to give credit for the sum of $1,116,225.00 previously received under the Employees' Compensation Ordinance, the total amount awarded to the family was $182,794.20.

This appeal

14. Two issues arise on this appeal. First, the plaintiffs challenge the Judge's 40% reduction for contributory negligence. Mr Y L Cheung appearing for the plaintiffs, submits that there should have been no or a far smaller reduction. Secondly, there is a challenge to the multipliers adopted regarding future loss of dependency in respect of the widow and the two older children. Mr Cheung submits that significantly higher multipliers should have been adopted.

Contributory negligence

15. The Judge evidently decided to reduce the award by 40% because the deceased, an experienced sawyer who must have been aware of the dangers, had not done his job of making the necessary safety adjustments, putting himself in breach of regulation 19 and so in breach of statutory duty concurrently with his employer.

16. While we accept that this is a case where the deceased must bear a degree of responsibility for the accident, we consider, with respect, the 40% reduction to have been markedly excessive.

17. One starts with the fact (found by the Judge) that the deceased was killed in the course of his employment as a result of a breach of statutory duty on the part of his employer. The statutory duty was one requiring the fencing of an intrinsically dangerous circular saw being operated in the environment of an industrial sawmill. It was, in other words, a statutory duty designed primarily to protect employees in the position of the deceased.

18. The authorities, starting with Caswell v Powell Duffryn Associated Collieries [1940] AC 152, show, as Lord Atkin put it (at p 166), that in such a context :-

" ...... the care to be expected of the plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain, and manifold risks of factory or mine."

Lord Atkin added :-

"I agree with the statement of Lawrence J in Flower v Ebbw Vale Steel, Iron and Coal Co, Ld [1943] 2 KB 132, 139-140, ...... : 'I think of course that in considering whether an ordinary prudent workman would have taken more care than the injured man, the tribunal of fact has to take into account all the circumstances of work in a factory, and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence.'"

In the same case, Lord Wright stated (at pp 176 and 178-9):-

"The circumstances under which men working in a mine or a factory are exposed to risk when machinery is unfenced in breach of statutory duty have general characteristics of their own. These have to be carefully considered when the question is whether a man was negligent. ......

What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety."

19. In Stavely Iron and Chemical Co Ltd v Jones [1956] AC 627, at 648, Lord Tucker explained the rationale of this approach as follows :-

" ...... in Factory Act cases the purpose of imposing the absolute obligation is to protect the workman against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute."

It is therefore clear that where a breach of statutory duty by an employer is a substantial cause of injury to an employee, the fact that the employee contributed causally to the accident by his own momentary inadvertence or lack of care, if in the context of a repetitive, distracting or fatiguing work environment, may well be regarded as an "excusable lapse" and not as contributory negligence at all: per Lord Reid in the Stavely Iron case at p 642.

20. The abovementioned principle has been extended to apply to the process of apportioning liability where the employee is found guilty of some contributory negligence. The principle operates to lessen the percentage by which the award is reduced. This was acknowledged by Sachs LJ in Mullard v Ben Line Steamers [1970] 1 WLR 1414, at 1418, as follows :-

"To my mind, as indeed Mr. Forrest conceded, the principle enunciated in the passages [inter alia from the Stavely Iron case] cited applies not only to assessing the question of liability - in other words, whether a man is negligent - but also to assessing culpability - in other words, how one apportions blame as between a plaintiff and a defendant, even if a plaintiff has been held to overstep the boundary between inadvertence and negligence. ......

What happened was indeed exactly of the nature intended to be guarded against by the precautions prescribed by the regulations; and when a defendant's liability stems from such a breach the courts must be careful not to emasculate those regulations by the side-wind of apportionment. Moreover, the more culpable and continuing the breach of the regulation, the higher the percentage of blame that must fall on the defendant."

Such approach has been adopted by this Court in Li Man Yuen v Li Chung I T/A VF Electric Manufacturing Co [1991] 2 HKC 230.

The principles applied

21. In the present case, it must be borne in mind that the deceased's own breach of regulation 19 by not making the necessary adjustments to the riving knife and top guard represented a breach which was concurrent and overlapping with the duties on his employer who was bound, not merely to provide such safety devices, but also to ensure that they were properly positioned and maintained.

22. The deceased's omissions must be viewed against the Judge's findings as to the piece rate arrangements with their built-in temptation to speedier, incautious, work practices; the complete lack of any safety instruction by the employer or indeed of any attempt to promote safety consciousness, as evidenced by the employer's dismissive attitude towards the safety leaflets in his office, as well as the complete inadequacy of supervision over the way the deceased and the other sawmill workers did their jobs. The Judge found that the defendant simply left them to adopt whatever working methods they pleased, being well aware of how they worked, necessarily implying that the employer knew that his employees were adopting unsafe practices, in breach of the regulations.

23. Given those facts and the circumstances of the accident, it is by no means clear that the deceased, though an experienced sawyer, was necessarily aware of the risk of dislodged pieces of timber being flung backwards by the saw with potentially lethal effect or that he was aware that his failure to make adjustments to the riving knife and top guard constituted breaches of a statutory duty which he bore as a employee. As Lord Reid pointed out in Boyle v Kodak Ltd [1969] 1 WLR 661, at 668: "Employers are bound to know their statutory duty and take all reasonable steps to prevent their men from committing breaches." The employer in this case plainly took no such steps.

24. Mr H Y Wong, appearing for the defendant, sought to justify the Judge's decision by reliance on Cakebread v Hopping Brothers (Whetstone) Limited [1947] 1 KB 641 (CA). In that case, an accident was caused by a circular saw with a guard which was incapable of being adjusted so as to comply with the Woodworking Machinery Regulations in England. The employer was accordingly found to be in breach in not providing a properly adjustable guard and such breach was found to be a cause of the accident. However, the workman was held guilty of contributory negligence leading to a 50% reduction in the award.

25. In our judgment, that decision is clearly distinguishable on its facts. As the report states (at p 642) :-

"The workman admitted in evidence that he did not like working with a guard brought down low, and he, in fact, kept it some 3 inches above the wood at which he was working on the machine, notwithstanding that the employers' foreman had protested at his doing so and had agreed to a compromise position for the guard. While he was at work with the guard in that position, his hand was thrown against the saw and seriously injured."

It was also found that such injury would not have been suffered if the guard had been adjusted as low as it would go (even though at such setting, it would still not have complied with the statutory requirements).

26. The Cakebread case was therefore a case where the employer's foreman had pressed the employee to comply with the duty, but the latter had stubbornly insisted on working in an unsafe manner, resulting in the injury. It fell, in other words, within the class of cases where the employee is injured from deliberately taking a risk in defiance of direct instructions from the employer to the contrary, so that the employer is either absolved in law from liability or has his liability substantially reduced: eg, ICI v Shatwell [1965] AC 656; and Uddin v Associates Portland Cement Manufacturing Ltd [1965] 2 QB 582.

27. There is nothing in the present case to suggest that any attempt was made by the employer to secure compliance with the statutory duty by the deceased or that the deceased insisted on working in an unsafe manner in defiance of instructions. On the contrary, the finding is that safety instructions were never given and that the employees were, to the employer's knowledge, left to work as they pleased.

28. In such circumstances, bearing in mind the statutory objective of protecting workers from their own lapses in a dangerous working environment, it is our view that only a minor reduction for contributory negligence is justified. In our judgment, such reduction should not have exceeded 15% on the Judge's findings. We would therefore allow the appeal on this first point, varying the Judge's order so that the award of damages be reduced by 15% for contributory negligence instead of by 40%.

The multipliers

29. The second issue raised on appeal can be taken very shortly. Mr Cheung, appearing for the appellants, challenges the multiplier of 12 adopted in respect of the widow as too low on the footing that the Judge had erroneously assumed that the deceased would have ceased "his wood work career at age 58" whereas he should have accepted on the evidence that the deceased was likely to have found work, albeit less well remunerated, in some other area after reaching that age, resulting in a higher multiplier.

30. In our view, Mr H Y Wong is right when he contends that this argument is based on a misreading of the judgment. The Judge fully took into account the hypothetical possibility of the deceased finding work after retiring from his job as sawyer. The multiplier adopted was perfectly open to the Judge on the facts so that no basis exists for this Court to interfere.

31. Likewise, Mr Cheung has not advanced anything in his submissions to demonstrate that the multipliers adopted by the Judge in relation to the older children merit challenge.

32. In our judgment, the appeal on this second ground, must be dismissed.

33. Since the appeal has been substantially successful on the contributory negligence ground and since little time was spent on the second ground, we make an order nisi that the appellants have their costs of the appeal.