TSANG WAH LAM v. SUN MAY KING PUBLISHING CO. LTD. t/a SUN MAY KING PRINTING CO.

HCPI 843/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 843 OF 2000

____________

____________

_______________

J U D G M E N T

_______________

1. This action arises out of an accident which caused serious injuries to the Plaintiff at about 0130 hours on 26 May 1998 on a night shift during the course of his employment with the Defendant, a printing and publishing company. At the time of the accident, the Plaintiff was 28 years old. He is now 32.

2. The Plaintiff was a printing technician with the rank of 2nd officer. His responsibilities included operating the Defendant's printing machine, a 4-colour offset Heidelberg Series No. 517517 model, monitoring the controls, using tools to dismantle and clean the inking rollers, filling inks, adding paper and doing minor repairs. He was one of two 2nd officers on duty that night under the overall supervision of another employee "Ah Fai" who held the rank of Captain.

3. The printing machine comprised four units: a black, blue, red and yellow unit. During the course of that night shift the printing machine had been stopped by the Captain on a number of occasions in order to clean scraps of paper which had broken off due to the poor quality of the paper and become stuck to the rollers of the yellow unit.

4. Just before the accident, the Plaintiff had noticed slight blurring of some characters on the material being printed. This was caused by some dirt on the printing roller of the black unit.

5. It was the evidence of the Plaintiff that it was the usual practice in the company, adopted even by the Captain himself, not to stop the machine if there was a small amount of dirt on the printing roller, but to use an elongated piece of card to clean off the dirt by placing it in contact with the moving roller at the back of the machine. His evidence was that this happened so often that if the machine had been switched off each time, it would have been necessary to switch it off every few minutes.

6. In contrast to the blue, red and yellow units, only the upper part of the black unit was provided with a guard. This appears to be because paper had to be inserted into the lower part.

7. In accordance with this usual practice, the Plaintiff held a piece of card against the roller at the middle (unguarded) part of the black unit. The card became trapped by the rollers. It happened so quickly that he could not release his grip and his right arm became trapped by the machine up to the elbow.

8. After the accident, the Plaintiff was admitted to the Pamela Youde Nethersole Eastern Hospital on 26 May 1998 where he was diagnosed to have suffered or sustained:-

(1) right forearm crush injury with open fracture of right radius and ulna;

(2) severe soft issue injury of forearm and hand; and

(3) dislocations of distal interphanlangeal joints of right thumb and ring finger.

Urgent debridement and fixation of the fractures were performed on the day of admission. Subsequent debridements and wound coverage were also performed thereafter. Intensive physiotherapy and occupational therapy was given to the Plaintiff but the function of his right hand and forearm was still largely impaired. He was finally discharged on 11 July 1998.

9. After his discharge, the Plaintiff then received regular outpatient physiotherapy and occupational therapy and follow-up treatment. Serial radiological examinations of the right forearm revealed non-union of his old fractures.

10. The Plaintiff was re-admitted to the hospital on 26 June 1999 for bone grafting and was discharged on 3 July 1999.

11. The Plaintiff was again admitted to the hospital on 28 December 1999 for correction of the right thumb deformity and fusion of the interphalangeal and metacarphal-phalangeal joint of the right thumb. He was discharged on 31 December 1999. After his discharge, the Plaintiff was put on a thumb cast.

12. Sick leave was granted to the Plaintiff from 26 May 1998 to 30 March 2000.

13. The Plaintiff's claim against the Defendant company, his employer, is on the basis of its negligence, breach of contract of employment and breach of statutory duty.

Liability

14. There has been no serious dispute that the Defendant was in breach of duty to the Plaintiff.

15. The Accident report compiled by Mr K W Leung of the Labour Department and the parties' experts' reports were admitted by consent.

16. In the light of those reports, there can be no doubt that the middle and lower parts of the back of the black unit and not simply be upper part, should have been guarded. A later model of the same printing machine did provide a guard for the whole of the back area. The Defendant company pleaded guilty to an offence under regulations 4(1) and 13(1) Factories and Industrial Undertakings (Guarding and Operating of Machinery) Regulations, Cap. 59 on 9 November 1998. If such a guard had existed, the accident would not have occurred. In failing to provide such a guard, I find that the Defendant was guilty of negligence, in breach of its contract of employment with the Plaintiff and in breach of statutory duty as alleged in the Statement of Claim.

Contributory Negligence

17. The matter that has been in issue in this trial is whether the Plaintiff should be held responsible for any contributory negligence on his part.

18. It has been argued by Mr Wong that despite the fact that the Defendant knew that what he was attempting to do was dangerous, this is a case where in the particular circumstances no contributory negligence should be attributed to him. The Plaintiff was following a system condoned by his employer. Moreover he performed the manoeuvre he did in order to get on with his employer's business, rather than to suit his own convenience.

19. I find that there is considerable force in Mr Wong's submissions.

20. The Plaintiff always worked on night shift which ran from 9:00 p.m. to 6:00 a.m. Thereafter he would usually work overtime to some time between 9:00 a.m. to 10:00 a.m.. At least in so far as the night shift is concerned I accept the Plaintiff's evidence that it was usual practice not to stop the printing machine when only a small piece of ink dirt appeared on the printing rollers. The position was different if paper disintegrated or the dirt was larger. It is common ground that it was the Captain who supervised the operation of the machine and who was responsible for the decision to switch it off. The Plaintiff's evidence that the Captain knew about this practice and condoned it and indeed adopted it himself was uncontradicted. Indeed some force was lent to this evidence by the evidence of Mr Tse Chung Yam, a director of the Defendant company, who confirmed that he had seen workers dipping cards into the machine to clear the rollers, and on such occasions would speak to the Captain. This provided confirmation that it was a practice in which the Captain at least had acquiesced. The fact that the Captain was present at the time of accident lends credence to the Plaintiff's account that this was a usual practice.

21. The evidence of Mr Tse Chung Yam was of limited significance in so far as practice on the night shift was concerned. On his evidence, he would come into work after 10:00 a.m. and leave work about 8:00 to 9:00 p.m.

22. He would only see the Plaintiff working about once or twice a month. Even then he said he would not supervise the workers in their work, in view of their experience and the fact it was the Captain who was responsible for supervision.

23. Mr Tse said that he had never reminded the Plaintiff to switch off the machine if he was cleaning dirt from the rollers because he had never seen him doing so. It is the Plaintiff's evidence that he had used the card to clear the rollers in the presence of Mr Tse. It may well be that Mr Tse had simply not observed the Plaintiff adopting what was his regular practice.

24. I am also satisfied that, whether express or not (and there is a conflict between the Plaintiff and Mr Tse as to whether Mr Tse had expressly discouraged switching off the machine), there was pressure on the printing workers to keep the press rolling. The press was in operation 24 hours a day. The Defendant and other workers habitually worked approximately 3 hours per day overtime. Mr Tse himself, initially at least, confirmed that the Defendant company had a very busy schedule at the time of the accident. Even on the evidence of Mr Tse, a stoppage of 2-3 minutes to clean a speck of dirt off the roller would cause a loss of 400-600 printed sheets.

25. On the night of the accident, the machine had already been stopped by the Captain on a number of occasions in order to remove pieces of papers which had disintegrated in the yellow unit. It is entirely understandable that the Plaintiff would not wish, in addition, to stop the machine every few minutes when small pieces of dirt appeared on the roller. In adopting the practice he did, he was acting in what he perceived to be the Defendant's best interest. He himself being a salaried worker had no interest in adopting this unsafe practice.

26. In the context of this case the observations of Fuad VP in Sun Wan Co v. Ng Kam [1988] HKC 358 are particularly apposite:

"The plaintiff was not performing his task in a dangerous way to save himself trouble. He was doing it in that way to get on with his employer's business; in a way, as the judge found, that was condoned and tacitly encouraged by his employer. There were safe system available but they were not ones which, in practice, were used. Indeed, as I have mentioned, the chief foreman himself had employed the same method on the evidence accepted by the judge. In these circumstances, I do not think that an employer can be heard to say that his employee was being negligent in carrying out the work in that manner. It seems to me that the approach of Denning LJ in the Court of Appeal hearing of the General Cleaning Contractors case which I have just read is applicable."

27. The words of Denning LJ to which he referred were as follows:

"At the hearing of the appeal it was suggested that the accident might have been avoided if the man had put in a chock to prevent the bottom sash coming right down as it did. This was, in effect, a suggestion of contributory negligence. This was negatived by the judge and I agree with him. You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employers expected him to do it, and, if they had taken proper safeguards, the accident would not have happened."

28. In the light of all the circumstances of the case to which I have referred, and in view of the statutory obligation of the Defendant to fence dangerous parts of the machinery, one of the objects of which must have been to protect a worker from the consequences of disregarding his own safety in favour of increasing production for his employer's benefit, I find that this is the case where it would be wrong to find any contributory negligence on the part of the Plaintiff.

29. I find the Defendant 100% liable for the accident to the Plaintiff.

Pain, Suffering and Loss of Amenities

30. The report of Dr James Lam of Pamela Youde Nethersole Eastern Hospital was agreed.

31. The reports of Dr Lee Po Chin (Plaintiff's orthopaedic expert), Dr Otto Au (Plaintiff's expert in plastic surgery), Dr Lam Kwong Chin (Defendant's orthopaedic expert) and Dr Gordon Ma (Defendant's expert in plastic surgery) were admitted into evidence without the doctors being called.

32. It was the view of Dr Lee Po Chin that the Plaintiff had a major loss of hand and wrist function due to structural damage caused by the injury. There was pain, stiffness and weakness of the right wrist and hand. The right hand had been the dominant hand of the Plaintiff.

33. There was major loss of muscle bulk of the forearm. The wrist was stiff. The right thumb was fused at the Plaintiff's interphalangeal and metacarpal-phalangeal joint. There was peri-trapezium axial disruption of the carpus of the right thumb. The movement of the basal joint of the thumb were limited and so were the movements of the joints of other fingers. There was also partial loss of sensation of the fingers.

34. The Plaintiff would need adjustment in writing. He is also unable to use heavy tools such as drills or hammers or carry heavy weight with his right hand. He is probably unable to return to work as a printing technician. The jobs he can perform are probably non-manual such as messenger, security guard or carpark attendant.

35. Doctor Otto Au found that the Plaintiff was suffering from severe deformity of his right hand, wrist and forearm. There were ugly scars on the right forearm and the right hand, an ugly defect on the left hip and ugly scars on the Plaintiff's thighs. He suggested an operation involving fat injection and laser treatment.

36. Dr Lam Kwong Chin instructed by the defence examined the Plaintiff. He agreed that there was stiffness of the wrist and fingers and the right hand was in poor functioning condition. Effectively the Plaintiff's right hand, formerly his dominant hand, could only be used as an assisting tool to his left hand.

37. The Plaintiff himself said that he still suffered from pain in his right hand finger joints. He was embarrassed and had developed a complex about the scars on his right arm. He could not grip with his right hand. He could no longer use chopsticks or write properly and it had affected his sporting interest.

38. I have been referred to a number of cases including Chan Kai Wing v. Leung Fat Kee Engineering Factory Co. Ltd [HCPI 1163 of 1999], Leung Lai Yin v. Yeung Kei Chi (trading as Shun Hing Furniture Decorating Construction) and Anors [HCPI 317 of 1999], Lo Chi Bun v. Leung Wah Kwan [HCPI 984 of 1997], Tsang Chung Wan v. Lee Ming & Ors [HCPI 1063 of 1996] and Tang Pui Wah v. Yiu Yat Fan (trading as Dao Pong United Goods Manufactory) [HCA 4500 of 1984].

39. I have borne in mind in considering these cases that the Plaintiff's injury was not simply to his hand and fingers, but extended to his whole right forearm. He is a single man and the cosmetic appearance of his right arm is likely to be particularly distressing to him.

40. In my view the appropriate award is at the upper end of the "serious injury" category.

41. I award him $550,000.00 in respect of the pain, suffering and loss of amenities.

42. The following damages are agreed:-

Medical Expenses (which includes costs ofhospitalization, physiotherapy, occupational therapy and follow up treatment)	$ 17,756.00
Travelling Expenses	600.00
Damaged Clothing	300.00
Future Follow-up Medical Treatment	440.00
Future Travelling Expenses	200.00
Loss of Earning Capacity	48,000.00

Future Surgery

41. The Defendant does not seriously challenge the Plaintiff's claim for $132,000.00 in respect of the cosmetic surgery recommended by Dr Otto Au. I award that sum.

Nourishing Food

42. The Plaintiff claims $100,000.00 under this head but does not suggest that this food had been given on medical advice nor can he produce any supporting documentary evidence of this expenditure. The Defendant suggested an award of $40,000.00 under this head.

43. In view of the absence of precision in the Plaintiff's claim but bearing in mind that he had to undergo 4 operations, I regard the figure of $40,000.00 as reasonable and award that sum under this head.

Pre-trial Loss of Earnings

44. During the course of the trial, the parties agreed that the Plaintiff's average monthly earnings over the twelve months prior to the accident (not including a New Year bonus of $11,000.00) amounted to $18,963.00. It was agreed therefore that his pre-accident earnings taking into account the New Year bonus amounted to $19,880.00 per month.

45. The Plaintiff was on officially certified sick leave for 22 months 5 days, but has not been able to find a job since his sick leave ended on 30 March 2000 despite having been to 10 or so interviews for jobs such as a security guard or petrol pump attendant. The jobs for which he applied were advertised in the newspaper. The security guard jobs carried salaries of around $7,000.00 per month. Perhaps it is not surprisingly that, in view of the depressed state of the labour market and the fact that he was competing with the able bodied applicants, he was unsuccessful in obtaining these posts. Surprisingly he has not sought the assistance of the Labour Department's Selective Placement Unit. He said that he was unaware of its existence.

46. If he had been, I believed he would have been better placed to obtain employment, but of course the wages offered would have been correspondingly lower.

47. For that reason, I consider that it is more realistic to look at the wages supplied by the Selective Placement Unit of the Labour Department for the occupations which would be appropriate for the Plaintiff than the open market figures for those occupations. Based on the 4 figures for the first 4th quarters of 2000, I believe that the Plaintiff should have been and now is capable of securing employment as a security guard, carpark attendant or in a similar occupation at a salary of $5,000.00 per month. I consider he should have been capable of obtaining such employment by 30 June 2000, i.e. within 3 months of the end of his formal sick leave (i.e. 25 months after the accident).

48. In respect of his loss of pre-trial earnings, I find that he should be entitled to his total earnings of $19,880.00 per month for 25 months (i.e. $19,880.00 x 25 = $497,000.00).

49. For the period from 30 June 2000 until the last day of trial (20.3 months) he should be entitled to the difference between what I find he is now capable of earning ($5,000.00 per month) and his pre-accident earnings ($19,880.00 - $5,000.00) x 20.3 = $302,064.00.

50. His total loss of pre-trial earnings is therefore $799,064.00.

51. The Defendant contends that the Plaintiff's liability for tax should be taken into account and submits that since the Defendant's annual earnings were $238,560.00 (i.e. $19,880.00 x 12) and he would be entitled to a personal allowance of $108,000.00, his taxable income would be $130,560.00. According to the schedule to the Inland Revenue Ordinance, his annual tax liability is

1st $35,000	2%	$700.00
2nd $35,000	7%	2,450.00
3rd $35,000	12%	4,200.00
remaining $25,560	17%	4,345.20
		$ 11,695.20

52. Over a period of 3.75 years since the accident, his tax liability would have been $11,695.20 x 3.75 = $43,857.00

53. In respect of pre-trial earnings after deducting his liability for tax, I award him $755,207.00 ($799,064.00 - $43,857.00).

Future Loss of Earnings

54. Inevitably the appropriate multiplier in a case such as this involves a measure of speculation. The Plaintiff had been working in the printing industry for over 10 years having started as an apprentice. He is therefore likely to have continued in that line of work until his retirement.

55. I see no reason why he should not have continued until the age of 60. Indeed I consider it likely he would have done so. He is now 32 and therefore normal retirement age is now 28 years away. I regard a multiplier of 15 as appropriate in the circumstances.

56. His future loss of earnings are therefore:

($19,880.00 - 5,000) x 12 x 15 = $2,678,400.00

57. Again the Defendant argues that the Plaintiff's future liability for tax should be taken into account. Mr Ng has produced calculations on the basis that the Plaintiff will only be entitled to a single person's allowance. I do not agree that the matter should be approached in this way. Although the Plaintiff is now single and only entitled to a basic allowance, he is of a marriageable age and is more likely than not to marry and have children. I consider the fairest way to take this feature into account would be to assume that he will marry and have one child, and therefore assess his allowances on that basis. The current Married Persons allowance of $216,000.00 and 1st child allowance of $30,000.00 would mean that he would not start to pay tax until his income exceeded $246,000.00. That exceeds what his annual income would have been based upon earnings of $19,880.00 per month (i.e. $19,880.00 x 12 = $238,560.00).

58. In such circumstances, I decline to make any deduction on account of tax for this head of damages.

Mandatory Provident Fund (MPF)

59. Since 1 December 2000, an employer has been required to contribute 5% of an employee's earnings to the MPF. The Plaintiff claims the sum of 5% of his loss of earnings from 1 December 2000.

60. I find pre-trial loss of MPF to be ($19,880.00 - $5,000.00) x 14.3 x 5% = $10,639.20.

61. I find future loss of MPF to be $2,678,400 x 5% = $133,920.00.

62. I find therefore total loss under MPF to be $10,639.20 + $133,920.00 = $144,559.20.

Summary of Damages Awarded

64. The Defendant is to be given credit for a sum of $1,538,600.00 paid under the Employees Compensation Ordinance.

65. There will accordingly be judgment for the Plaintiff in the sum of $2,828,862.20 plus interest on general damages, pain suffering and loss of amenity at 2% from the date of service of the writ to the date of judgment and interest at half judgment rate on special damages and damages for pre-trial loss of earnings from the date of accident until the date of the judgment.

66. Unless either party applies to be heard on the question of costs within 14 days, I order the Plaintiff's costs to be taxed if not agreed and paid by the Defendant.

67. The Plaintiff's own costs are to be taxed under the Legal Aid Regulations.