LAU SHUN KAM v. LOCK KEE PLASTIC WORKS LTD

---------------

----------------------

J U D G M E N T

----------------------

1. This is an action by the plaintiff for damages for severe personal injuries suffered in an accident that occurred on the 31st October 1986 during the course of his employment with the defendant. The claim is made on the grounds of breach of statutory duty and negligence at common law.

2. The plaintiff who is now aged 72 and therefore 69 at the time of the accident has been employed by the defendant as a plastic injection machine operator for 18 years and was so employed before he joined the defendant. His working hours vary as he is a piece worker, but often they are from 6 a.m. - 7 p.m. It is not in dispute that Mr Chan, the defendant's engineering supervisor did not arrive for work at the factory until 9.30 a.m each day.

3. On the date of the accident the plaintiff was operating a plastic injection moulding machine for the manufacture of plastic toys. Photographs and a diagram of the machine were produced in evidence whilst I had the advantage of a visit to the factory with the parties during the hearing to see the machine in operation when the plaintiff also gave a demonstration as to how the accident occurred.

4. Although the machine, according to Mr Ng, the plaintiff's expert engineer was designed to be fully automatic, it was operated on a semi-automatic basis. A description of the machine and its operation is set out in his report of the 22nd December 1988 at page 15 of the plaintiff's agreed bundle of documents. A movable wire guard fixed to the front side of the machine can be seen in the photographs but there is no guard over the top of the machine with the result that access is available to the moulds. The moulds consist of two steel blocks, one fixed to a stationary platen and the other to a movable platen. The moulds are closed by sliding the front gate until the mould closing switch is pressed.

5. The accident happened at about 6 a.m., shortly after the plaintiff arrived for work. He switched on the power, removed the wire guard and installed a new mould. After carrying out a trial run, he discovered that the edges of the finished product were uneven. Accordingly, in accordance with the normal practice of the factory and with the power still on, he opened the gate which in turn opened the moulds. He climbed onto a stool in order to reach and lean over the top of the machine to carry out some repair work with a chisel or hammer probably to remove some burrs. Whilst doing so, the moulds closed, trapping his left hand.

6. The accident report of Mr Tam, a factory inspector, based upon an interview that he had with the plaintiff states that the accident was caused by the plaintiff's right elbow accidentally coming into contact with the sliding gate pushing it towards the mould closing switch. This allegation was denied by the plaintiff. Mr Tam also referred in his report to a test that he carried out on the machine after the accident which revealed that the midway switch failed to prevent the moulds from closing when the sliding gate was in a semi-open position. For the plantiff, a theory was postulated that the moulds closed as a result of a short circuit. However, the actual cause of the accident was not established so that I am unable to make a finding on this issue.

7. On the 16th June 1987, the defendant pleaded guilty at the Western Magistracy to a charge of failing to guard the closing nips between platen motions of the plastic injection moulding machine with an effective guard in accordance with Regulation 5 of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations, contrary to Regulation 4(1) and Regulation 13(1) of the Regulations and was fined a sum of $3,000.

8. Although the cause of the accident is unknown, there is no doubt that it would not have happened if the power had been switched off or there had been an effective interlocking guard on the top of the machine which, upon its removal for repairs to be carried out, should have automatically turned off the power.

9. There was a conflict of evidence between the plaintiff and Mr Chan, supported by Mr Cheung, the managing director of the defendant, with regard to the system of work adopted at the factory. The plaintiff said that when it was necessary to effect minor repairs which included those that he was doing on the date of the accident, it was the practice to keep the power on and that he had never received any instructions to the contrary. He also said that Mr Chan kept the power on when doing similar repair work. Both Mr Chan and Mr Cheung said that instructions had been given to switch off the power and Mr Chan also denied that he kept the power on when he was doing repairs. It was put to the plaintiff in cross-examination that no advantage was to be obtained if the power had been switched off for the motor could be restarted in a matter of a few seconds. However, for the motor to run smoothly, I consider upon the evidence that I heard that a longer period would be necessary if the power had been switched off. Be that as it may I found the plaintiff to be a reliable and honest witness who did not exaggerate or embellish any part of his evidence. I am in no doubt that the defendant did not give any instructions to the plaintiff to switch off the machine whilst carrying out repair work. Despite the defendant's failure to provide an effective guard, it was contended that a guard was not required for the work of repair to be carried out for it would have been impossible otherwise with the guard in place. Mr Pritchard placed reliance upon Regulation 4 of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations which where relevant provides :-

"4. (1) Subject to paragraph (2), a dangerous part shall be effectively guarded in accordance with and in the manner provided by regulation 5.

(2) Notwithstanding paragraph (1), a dangerous part which by reason of -

(a) ....

(b) ....

(c) the nature of the work being performed,

does not give rise to any reasonably foreseeable hazard to the safety of any person present at a notifiable workplace need not be guarded as provided in regualtion 5.^"

Regulation 5 provides that an effective method of guarding a dangerous part can be achieved by an interlocking guard.

10. While I accept that the work could not have been done with a guard in place, nevertheless an interlocking guard over the top of the machine would have provided effective security by shutting off the power before the work was carried out. There was therefore a clear breach of statutory duty on the part of the defendant by their failure to provide an effective guard.

11. In respect of common law negligence, the plaintiff is required to work in a very cramped space where the noise is such that it is very difficult to hear a person speak and where the work is repetitive for a period of up to 12 hours per day. As the plaintiff is a piece worker, speed is of course essential. Apart from the oral instructions that the defendant said were given which evidence I reject, there was no evidence that the defendant had taken any other steps to ensure the safety of their employees. Mr Chan did not even arrive at the factory as I have said until 9:30 a.m. so that there was no supervision for the first three and a half hours of the day in any event. Indeed Mr Chan during his evidence said that it was left to the plaintiff to decide when a dangerous situation was present that should result in the power being turned off. Having seen and heard the witnesses, I am sure that no supervision was exercised by the defendant and that they were fully aware of the practice that the power was kept on when repairs were carried out.

12. I am therefore satisfied that the defendant was guilty of negligence in not providing a safe system of work by their failure to give instructions to switch off the power when carrying out repair work and by their complete failure to exercise any supervision and care for the plaintiff's safety. Having regard to all the circumstances to which I have referred, I do not consider that there was any contributory negligence on the part of the plaintiff.

13. Evidence was given by four witnesses on behalf of the defendant that the plaintiff had suffered the complete loss of the index, middle and ring fingers of his left hand in a previous accident that occurred ten years before the accident in this case whereas the plaintiff said that he had lost only the tips of those fingers. Two of the witnesses were Mr Chan and Mr Cheung, the other two being Miss Chan and Mr Or who are employees of the defendant. Irrespective of the reasons as to why Miss Chan and Mr Or gave evidence which may have been as a result of a misplaced sense of loyalty to the firm I have no hesitation in rejecting their testimony and that of Mr Chan and Mr Cheung and accept that of the plaintiff. However, apart from the evidence of those witnesses, the defendant when agreeing to pay employee's compensation for the accident accepted that the plaintiff's injuries had resulted in a permanent incapacity of 42%. This percentage was based upon a figure calculated between item 17 of the First Schedule of the Employees Compensation Ordinance which provide for a percentage loss of earning capacity of 50% for the loss of four fingers and the thumb of one hand and 40% for item 18 that relates to the loss of four fingers of one hand. Accordingly, I am in no doubt that the plantiff's evidence is correct.

14. A sum of $10,988 was agreed for various items of special damage, but a sum of $4,640 claimed for tonic food was disputed. I consider $2,000 to be a reasonable figure under this head. Special damages will therefore amount to $12,988.

15. There was also a claim for loss of future earnings, but the plaintiff is still working for the defendant, although he says that he would like to retire. The plaintiff in fact is a very courageous man who is determined and hardworking. I am sure that there are not too many people like him who can continue to work at his age and with his disability. His performance is quite remarkable. Although he said that he now works more slowly, I am unable to say that this is entirely due to his disability. In fact his earnings now are not to a great extent very different from those that he earned before the accident. While the plaintiff contended that his earnings would now be $4,000 per month if it had not been for the accident, I was not satisfied that this claim was justified. Accordingly, I shall make no award under this head.

16. As a result of the accident, the plaintiff had to all the fingers and thumb of his left hand amputated almost at the metacarpophalangeal joints. According to the report of Dr. Mao dated the 20th April 1988, debridement was carried out on the day of the accident and a pedicle groin flap was carried out onto the stump of the hand and the groin flap was detached on the 18th November 1986. Another operation was performed on the 12th December 1986 to widen the interval between the thumb and the stump of the fingers and the plaintiff was discharged from hospital on the 26th December 1986. Subsequently the plaintiff received physiotherapy treatment and was assessed by a medical board with 50% loss of earning capacity which was subsequently reassessed to 42%.

17. The left hand is now in the form of a flipper type hand with two components, the thumb on one side and the rest of the fingers on the other. There are some flexor movements in the thumb, but the hand is of little use because there is no sensation where the skin flap had been applied. The plaintiff is able to carry 2 or 3 1bs with his left hand, but it is not possible for him to hold a bowl. He can approximate the thumb to the stump of the fingers but, to all intents and purposes, he has lost his left hand. Dr Mao concluded that the injuries amount to a 52% impairment of the whole person as the plaintiff is right-handed.

18. The injuries suffered by the plaintiff clearly come within the range of substantial injury as referred to by the Court of Appeal in Lee Ting-lam v. Leung Kam-ming (1980) H.K.L.R. 657 where guidelines were laid down for the assessment of damages in personal injury cases which were revised in Lau Chi-ping v. Hoi Kong Ironwares Godown Company Limited (1988)2 H.K.L.R. 650. In the latter case, the Court considered that damages in this range should be between $180,000 and $225,000.

19. In my judgment, the appropriate award in this case for general damages for pain and suffering and loss of amenities is $200,000. There will therefore be judgment for the plaintiff with damages assessed at $212,998. The sum of $60,289.80 received by the plaintiff for employee's compensation will be deducted from the award. There will be interest of 5.4% on the special damages from the date of service of the writ and 2.7% on the general damages as from the date of the accident. There will be an order nisi for costs to the plaintiff together with the usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations.