FONG CHI LEUNG v. WORLD WIDE STATIONERY MANUFACTURING CO. LTD.

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J U D G M E N T

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Mortimer J.

1. This is the Judgement of the Court. In this appeal, Deputy Judge Sharwood gave judgment for the plaintiff on the 14th February of this year. Judgment was given against the defendant, his employer, for personal injuries received when his right hand was trapped in an automatic power press on 2nd May 1989. There was an allegation of contributory negligence which succeeded. 50% damages were awarded.

2. The plaintiff at this time was a power press technician. His task was to look after nine power presses. It was his_job to clean and adjust them. The machine concerned was a WWSM automatic reciprocating power press being used for making metal file bars. It was electrically operated. Power from an electric motor passed to a flywheel on the machine. The press consisted of a tool and a die. The tool descended onto metal which was stamped out to make the file bars. The metal for the bars was fed into the machine from a spool. The nip between the tool and the die was a dangerous part. of this machine - on that there is no dispute.

3. In its normal operation, there were fixed wire guards to prevent access to this nip. Those guards can be seen on photographs produced in the court below. In its automatic operation, the evidence was that the machine operated 300 times per minute. Whether or not this is exactly accurate, the machine certainly operated at great speed and was in its normal operation an extremely dangerous piece of equipment.

4. The controls of the machine can be seen also on the photographs - only some are relevant to this case. First, there was a panel, and on this panel there was a stop switch that switched off all the power. There was then another switch which was circular in operation and had four positions. One position was stop which isolated the machine but did not stop the motor or the flywheel. There was an inching position; there was a single stroke position; and there was a continuous operation position. It is not necessary to say anything.further about those controls. The single stroke position features in the case.

5. In addition, there were other controls on a pedestal - called "the console" in the evidence. That was a movable pedestal connected to the machine by flexible cables. On this, there were three switches; an "on" switch which was protected by a horizontal bar to avoid accidental operation; an "off" switch; and an "emergency stop" switch. The last switch figures considerably in this case.

6. In order to isolate the operation of the machine, this "emergency stop" switch could be pressed. When that was done, the power to the motor was not. cut off nor did the flywheel stop, but the other controls for the machine were isolated. Once pressed, the emergency stop switch could only be released when it was pressed and twisted to allow it to come up again.

7. It was the plaintiff's task to clean the tool and die on this machine three or four times each day. No doubt. he had to do a similar operation upon other machines also. The method by which he ought to have done this - according to what was put to him by the defendants and accepted by the judge - was that first, he had to isolate the machine from the power by using the "emergency stop" switch, then he had to remove the fixed guards from the machine to give him access to the nip, then he had to clean the tool and die with a rag. After that, he was to test the operation of the machine. So having released the 'emergency stop' he would have the machine on the 'four position' switch on single stroke operation. When on single stroke operation, one touch of the "on" switch will cause the machine to strike once. He would, therefore, press the "on" switch causing the machine to strike once to see whether his cleaning had been successful.

8. Frequently, the first cleaning was not successful, so he would have then to isolate the machine again by pressing the "emergency stop" switch; clean the machine; release the "emergency stop" switch; press the "on" switch to cause a further strike; and then examine to see whether the cleaning had been successful. That operation he had to repeat until the cleaning operation had been successful and the articles being produced were being properly stamped.

9. Although the evidence did not show it, by implication, it was then necessary for him to replace the guards on the machine, release the emergency stop switch, switch the machine back to automatic and then, the normal operation of the machine would continue.

10. The accident happened in this way (there was little dispute on the facts between the parties): the machine required cleaning, the plaintiff removed the fixed guards without pressing the emergency stop switch but he had the "four position" switch on single stroke. He then commenced to clean the tool and the die. When he was cleaning the tool and the die with his right hand, his left hand was resting on the pedestal near the "on" switch. It was his intention having cleaned the tool and die, to remove his right hand from the nip, press the "on" switch to cause one strike to see whether his cleaning had been successful. If not, to clean again, press for a further strike and so forth. In fact, when he was cleaning the nip, the machine operated causing the press to strike and his right hand was crushed in the machine. He did not intend to operate the machine with his right hand in the nip and to that extent, the operation of the machine at that moment was inadvertent. But as the learned judge found he took a risk by not operating the emergency stop switch during the cleaning and in that respect, he was careless of his own safety and a finding of contributory negligence against him was made.

11. It is to be noted that in this cleaning and testing operation, it was never the defendants' case that the fixed guards before operating test. The legal effect of that, as first that the plaintiff was guilty contributory negligence for failing to use the emergency button. Secondly, he also found that the defendants were in breach of their duty. Although he put it in a slightly different way, the effect of what he found was that the he should have replaced the machine in order to found by the judge, was of defendants duty to effectively guard this dangerous part of the machine was breached and that also was a cause of the accident.

12. There is now no dispute that the regulations apply to this machine in this work place. 'Those regulations require that "every dangerous part of a machine shall be effectively guarded in accordance with and in the manner provided in Regulation 5". Regulation 5 provides that "subject to paragraph 3 effective guarding of a dangerous part shall be achieved either by any one of the following methods or by a combination of them - (a) by a fixed guard; (b) by an interlocking guard; (c) by an automatic guard; (d) by a trip guard; (e) by a two-handed control device". There is a further provision that every guard or device, pursuant to that paragraph, shall be of "substantial. construction" maintained in efficient condition and "kept in its proper position while the machinery or plant is in motion".

13. There has been some dispute in the course of argument as to whether the duty to effectively guard is absolute. Little turns in this case as to whether the duty is absolute but we are inclined to accept Mr. Pritchard's argument that the duty under Regulation 4 to effectively guard is indeed an absolute duty when that duty arises, but the regulations provide that the duty does not arise in all circumstances. Of this, we believe there can be little doubt. The general principles will follow those which apply to section 14 of the Factories Act in the United Kingdom.

14. In these regulations, the duty can be complied with in a number of different ways set out in Regulation 5, either individually or in combination. It is to be noted that by Regulation 5(1)(e), the duty is satisfied by the provision of a two-handed control device which, of course, is not a guard at all.

15. The learned judge found a breach of these regulations in the failure to provide a two-handed control device. It was principally in relation to Regulation 5(1)(e) that the case was fought. The reason is clear. There were other machines in this same workshop which did, indeed, have a two-handed control device, but this particular machine did not.

16. The issues on appeal can be simply stated. The appellants say that the learned judge was in error in finding that the breach of the guarding regulations, although admitted, was a cause of this accident and submit that the plaintiff's own actions in failing to follow his instructions and operate the emergency press button were the sole cause of his injury, or, looked at. another way, were such a major cause of his injury that it should amount to 100% contributory negligence. That is not quite the way that it is put, because 100% contributory negligence may be wrong in principle. Of course, if the court were come to the conclusion that only a very small percentage of the blame should rest with the employer the court would not make a finding of liability against it. If the court is against the appellant on those matters, it is submitted that the 50% contributory negligence finding was wrong in principle and ought to be varied by this court to one in the region of 80%.

17. The defendants' argument broadly is this:- on the question of causation, the plaintiff was at the time of his injury not testing the machine but was cleaning it, and it was in the course of cleaning that the machine operated and that if he had activated the emergency stop button, the machine could not have been inadvertently operated. He should have been cleaning the machine with the machine stationary and isolated, there could not in these circumstances have been an accident, and there is no duty to guard the machine when it is stationary. As the accident would have been avoided in these circumstances, the plaintiff should be regarded as the sole author of his own misfortune.

18. Reliance is placed upon a number of cited cases. We mention some of them with a caveat. In industrial injury cases where machinery is involved, and there is a breach of statutory duty together with an allegation of contributory negligence the reported cases must be regarded with some reserve. The reason is this; on questions of negligence and causation, these cases turn very much upon their own particular facts. That being so, one can cite cases with degrees of contributory negligence from very small amounts up to 100%.

19. The cases particularly relied upon include Mitchell v. W.S. Westin Ltd. [1965] 1 WLR at page 297. A case of a fitter being injured when he was repairing a collar on a driving shaft. He chose to set the machine in motion in order to turn it when he could have used other methods than the operation of the machine. The finding was that there was no statutory duty in the particular circumstances. The statute is very different in this respect from the Hong Kong provisions as it only applies when a machine is in "motion or in use". There are, however, obiter dicta which tend to support: Mr. Tang's argument, in particular a passage on page 305 and 306 in the judgment of Sellers L.J. A further case cited is Javes v. I.M.I. (Kynoch) Ltd. [1985] I.C.R. at 155, again a case where a man deliberately put his hand not once but twice onto or near moving machinery, as a result of which he was injured. It was held, both at first instance and on appeal, that he could not recover on the basis that he was the sole author of his own misfortune.

20. Similarly, Rushton v. Turner Brothers Abestos Co. Ltd. [1961] WLR 96. A very well-known case often cited in support of arguments similar to Mr. Tang's, but nonetheless valuable. In that case, the plaintiff suffered art injury to his hand when he put it into the moving part of a machine. He knew the machine had been damaged. Earlier he was present during a conference as to whether the machine could be continued to be operated. It was decided that it could. Later in the course of his shift he put his fingers through the damaged part into the dangerous part of the machine. Hardly surprisingly, the learned judge found that he was entirely responsible for his own injury.

21. With the greatest .respect, the cases cited are easily distinguishable from the present case. They show deliberation on the part of the plaintiff to either put his hand into a machine with full guards or put his hands near moving machinery without regard to the dangers. In this case there is no question of that; the plaintiff never intended that he should have his hand in the machine. when it operated. He was at the time cleaning the machine when (because he had not taken earlier precautions) there was an inadvertent operation of the machine. There was no question here of the plaintiff deliberately avoiding or defeating a guard which had been provided. There was here an accident which was in part the result - on the judge's finding which was not challenged on this point - of his own carelessness.

22. The next question to be considered in relation to causation is this: Was the breach of statutory duty a cause of this accident? Questions of causation always raise difficulties. They have to be approached in a common sense manner. A similar problem arose in Stapley v. Gypsum Mines Ltd. [1953] A.C. 563. Lord Reid said at page 681 in relation to causation:-

"The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt, whether any test can be applied generally."

23. What was the position about foreseeability of this accident? The duty to fence is one which is absolute if it arises. It arises in this case and the duty is to protect against any foreseeable accident that may arise through a workman coming into contact with a dangerous part of machine. This is supported in dictum in Mitchell v. the North British Rubber cited in Summers v. Frost [1955] A.C. at page 766.

24. The breach of duty was during the operation not just of cleaning but also of testing and the duty is to guard when the machine is in motion. How, here, was the duty to be complied with? Any of the guards required would have prevented the plaintiff's hand being in the machine at the time when the machine was in motion. In the other machines the duty was complied with by the two-handed device and therefore that was concentrated upon in this case, but any automatic guard or guard required by section 5 would have had the same effect.

25. Mr. Pritchard says that it is plainly foreseeable that someone might get their hands into the nip in the course of doing his cleaning and testing using the defendants' system of work, even using therefore the emergency stop button. With this submission we agree. Experience of the way in which men operate machines shows that they do become familiar with machines; sometimes familiarity breeds contempt; sometimes they take shortcuts in their work. For one reason or another, if this machine is not properly and effectively guarded, it is, we consider, plainly foreseeable that a man would get his hand into the nip in the course of this cleaning and testing operation.

26. In these circumstances, looking at the matter from a common sense point of view was the failure to comply with the fencing provisions causative of this accident? Of course, it is not necessarily causative simply because the provision of guards would have prevented the accident. However, there can be little doubt that whichever guard had been provided to comply with the duty it would have avoided this accident. Even if he had been required to replace tile fixed guards before testing the machine it is most unlikely that he would have had his hand on the console near the operating button waiting to test it while he was cleaning for he would have had this further operation to complete. Similarly, the other guards would have simply prevented the operation of the machine with his hand in the nip and the two-handed device would have kept his hands away from the nip.

27. In these circumstances, we are quite satisfied that the learned judge - when finding that a breach of the regulations was a cause of the accident - was perfectly correct.

28. The next question is whether his apportionment of 50% contributory negligence was one with which this court ought to interfere. Cases have been cited to us. The Macgregor [1943] AC 197 is the well-known authority for the proposition that appellate courts do not interfere with apportionments made by a trial judge who has taken into account all the matters which he ought to have taken into account and has done the correct balancing process. The learned judge found assistance in Anderson v. Thames Case Ltd. (1987) SLT 564 where a finding was made of 50% contributory negligence but here the balance which must be made is one which has to be dealt with broadly. In Stapley v. Gvpsum Mines, Lord Reid dealt with the principles at page 682 when he said:-

"A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but "the claimants' share in the responsibility for the damage" cannot, I think, be assessed without considering the'relative importance of his acts in causing the damage apart from his blameworthiness."

29. It would appear that there ought to be taken into account first the relative blameworthiness of the parties, and secondly, their responsibility for the injury which has been caused - meaning their contribution to that injury. Here, the plaintiff was taking a shortcut. He failed to use the emergency button. For that there was no excuse and he really did not advance one. He should not have done it and it was a cause of his injury. He was in breach of a duty to take reasonable care not to expose himself to foreseeable risk of injury. No statutory duty was alleged against him in the pleadings nor was it open to the judge to find any.

30. So far as the defendants are concerned, they were in breach of their statutory duty. It is an absolute one and they are responsible for the method of work which was adopted in their factory. The regulations are to protect workmen from risks of injury caused by dangerous parts of machinery^, when they are doing things which it is foreseeable they may do. This was not (it is said) routine work but it was near because he had to complete this work so often on this machine and others during the day. So it is a high duty placed upon the defendants of which they were in breach. It is undoubtedly a serious breach. When those matters are balanced in the way in which Lord Reid urges it is difficult to say that the submissions made by Pritchard and accepted by the learned judge below were any way in error in principle. For our part we detect such error, indeed we think the learned judge was right his finding and we would not interfere with it. In the result, the learned judge properly considered all the issues, we agree with his findings and this appeal is dismissed.