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

HCPI 385/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 385 OF 1998

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J U D G M E N T

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1. The 1st Plaintiff in this action is the widow of Chu Kat Hing (the deceased) who died in an accident at work on 13 June 1996.

2. The deceased was employed by the Defendant at his timber business in Sheung Shui, New Territories, as a sawyer, working on a circular saw cutting timber into planks and battens for use in the construction industry. He had some 15 years experience in this work, and 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.

3. 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.

Liability

4. The circular saw blade was about 61 cm. in diameter and mounted in a saw bench with about 22 cm. protruding above the surface of the bench. It had above it a semicircular hollow metal guard, which could be lowered over the saw, and on the side away from the deceased, in line with the saw, a riving knife. This latter is 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.

5. Under the Factory and Industrial Undertakings (Woodworking Machinery) Regulations, Cap. 59, minimum measurements are stipulated for the distance between the riving knife and the blade of the saw, the height of the riving knife, and the position of the top guard in relation to the blade. Under these requirements, the riving knife should be not more than 15mm. from the edge of the saw, and extend upwards in an arc to follow the line of the saw blade to a height of at least 25cm. from the saw bench surface where the saw is at least 60cm. in diameter, and not less than 25mm. from the top of the saw where the diameter of the blade is smaller than 60cm. The top guard should be adjusted so that its flange extends below the roots of the saw teeth and be as low as practicable at the cutting edge of the saw.

6. Mr. Mok said that adjustments would be made by the deceased and then only when the blade of the saw was changed, either because it was no longer sharp enough, or a different size blade was required for timber of another type or hardness. This was about 4 or 5 times a day, and it was always necessary when changing the blade to move the guard, which could be adjusted from side to side as well as up and down, and the riving knife. However, he said that he did not think the blade had been changed that day and the settings had remained the same as they were found after the accident.

7. When the saw was examined by officers from the Labour Department, it was found that the riving knife was set at a height of 14.5cm. and 3cm. from the blade, and there was a clearance of 4cm. between the bottom of the top guard and the top of the saw blade. The riving knife was accordingly twice the proper distance from the blade and 10.5cm. too low, and the guard was set far too high. As a result of these findings, the Defendant was, as proprietor, charged with, and pleaded guilty to, two offences under the regulations, and was fined $40000.

8. It is also apparent from the evidence that the guard was wrapped in cloth or canvas as a further measure to prevent sawdust, and the water with which the saw was cooled, from blowing into the faces of the operators. The Plaintiffs' expert, Dr. Cheung Kie Chung, said that this was dangerous and should not be there as it may be caught by the saw blade. The Defendant also said that he had told the deceased to remove it, although I have to say I found his evidence as to this unconvincing. Mr. Law Chi Ming, the Defendant's own expert, said that, not only was this not against any regulations, nor dangerous, it was a common practice in sawmills such as this. It is also significant that neither of the experts, nor the Labour Department's safety officer, mentioned the cloth in their reports as a factor in the accident, and I accordingly consider it unlikely that it affected the situation in any way, and was a normal addition to the guard for the comfort of the workers.

9. On the day in question therefore the deceased and Mr. Mok were working on a saw which was not adjusted as required by the regulations to ensure the safety of those operating it. The top guard was set too high, and the riving knife too low and too far from the saw blade. It is clear to me that, had the adjustments been correct, it is unlikely that this accident would have happened, as the broken strip of timber would not have come into contact with the blade, and if it had, would have been prevented by the guard from flying out in the direction it did.

10. Where then, in a working environment such as this, did the responsibility for this situation lie?

11. It is clear that the operation of the saw was under the immediate control of the deceased. It was he who changed the saw blades, and who made any adjustments to the riving knife and guard. Mr. Mok said that the guard was usually at that setting and had been at the same setting all that day. He said that it was not practical to have it set low as they could not then see the timber or the teeth of the saw. It is almost inevitable that, where employees such as the deceased and Mr. Mok are paid according to the amount of timber they cut, there is a temptation to fail to adhere to strict compliance with regulations where to do so would affect the speed at which they work, either by having to stop for longer than they would wish, to make the adjustments, or by restricting the flow of their work. However, this is one of the reasons that regulations are made to enforce safety measures, principally by placing primary responsibility upon the employer.

12. The duty of the employer is clear. He not only has to provide safe equipment, about which there is no complaint here, but to ensure that his employees will be reasonably safe in using that equipment by adequate instructions and continuing supervision. It is not enough for an employer to say that he employed an experienced workman. However familiar with his work an employee might be, and however well aware of the dangers, when working repetitively and under a degree of financial pressure knowing that the faster he works the more he earns, the dangers must necessarily become obscured. I have no doubt that the Defendant was well aware of the way his employers worked. Indeed, it was in his interest as well that they should work fast and efficiently, even if this meant cutting corners in respect of safety.

13. The Defendant's evidence was that he had instructed the workers as to the correct settings of the guard and riving knife, and regularly advised them when he saw that they were not set properly. Mr. Mok, however, said that no such instructions were given to him, only as to the requirements for the work to be done, and that no warnings were given. If this is so, it is even less likely that the deceased received instructions as to safety, having greater experience, of which the Defendant was aware. He went on to say that, although the Defendant would sometimes come to look at the work, he was sometimes not there at all. I accept the evidence of Mr. Mok on this. I am satisfied that no instructions as to safety were given, that the supervision was inadequate, and the workers were left to make their own arrangements as to how they carried out their work. Mr. Mok frankly said that the guard was set high all day, above the level of the saw teeth. The Defendant, however, in his evidence to the inquest, said that when he saw the machine that morning, the guard was covering part of the saw teeth and was lower than at the time of the accident. On Mr. Mok's evidence, this is clearly not true. It was also revealing that the Defendant said, in the same evidence at the inquest, that he had safety leaflets in the office but did not show them to the workers as "workers never need them."

14. There is accordingly a clear breach by the Defendant not only of his statutory obligations, but of his duty of care to the deceased as his employee and his duty to provide and maintain a safe system of work.

15. As I have said above, it was the deceased who was the operator of this machine, and it was he who was immediately responsible for any adjustments as the work progressed. He was, as has already been noted, an experienced sawyer, and I have no doubt that he was aware of the dangers inherent in working with machinery such as this. Just how well he appreciated the risks he was taking is difficult to judge. I have no evidence as to his level of education and, this type of employment not requiring a very high level of skill and technical expertise, experience in it cannot be equated with an intelligent appreciation of the dangers involved and the necessity of a high degree of care.

16. Having said that, he cannot have been ignorant of the risks attached to his trade, and the greater risks where safety devices and procedures were not fully utilised. He was also under a statutory obligation himself under Regulation 19 of the same regulations, which requires a person employed on a woodworking machine to 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 is rendered impracticable. This he clearly did not do, and, although, as I have already found, the Defendant was in breach of his duty to the deceased, it is not expected of an employer that he will stand and watch his workers all the time to ensure their safety. There must be a degree to which an employee is responsible for his own and his co-worker's safety where he has immediate control over the work, and the devices and procedures which are designed to prevent unnecessary injury from machinery which has obvious dangers.

17. In the circumstances of this case I find that the deceased was contributorily negligent to the extent of 40%.

Quantum

18. It is agreed that the sum of $70000 should be awarded for bereavement, and also that the sum of $187185.70 claimed by way of funeral expenses should be set off against the sum of $200000 paid to the Plaintiffs by way of ex-gratia payment soon after the accident.

Loss of dependency

(1) Pre-trial

19. It is agreed by the parties that the deceased was earning $19000 a month at the date of his death and would be earning a similar amount now. He was aged 40, having been born on 7 November 1955. His widow, Madam Mak, the first named Plaintiff, was then aged 37. There were four children, namely Chu Pui Man born on 9 November 1981, aged 14, Chu Yuen Man born on 20 October 1982, aged 13, Chu Kam Wing born on 31 December 1985, aged 10, and Chu Kam Hung born on 7 August 1990, aged 6. The deceased also supported his parents with a contribution of $1000 a month, although his father died 2 years later.

20. The family's expenses at the time, at a total of $14678 a month, are set out in Madam Mak's witness statement and were not challenged by the defence. She said that he gave her sufficient money twice a month to cover these expenses, keeping the balance for his own use and, presumably, for his savings. By subtracting expenses solely in respect of the children's education, lunch and travelling, and maintenance for the deceased's parents and mother-in-law, there is a total of $10275 a month household expenses, or $1712.50 for each member of the household. For the children there would be an additional $750.75 in respect of their expenses, making their dependency $2463.25.

21. The pre-trial loss of dependency for each member of the family is accordingly:

Mak Woon King ($1712.50 x 40 months)	$68500.00
The four children ($2463.25 x 40 months = $98530 x 4)	$394120.00
Chu Moon Tin, the deceased's father ($500 x 24)	$12000.00
Tse Lo Yau, the deceased's mother ($500 x 40)	$20000.00
	$494620.00

(2) Post-trial

22. Mr. Wong on behalf of the Defendant has submitted that a proper multiplier in respect of the deceased and his widow is 12, and I accept this. It has been urged upon me by Mr. Cheung for the Plaintiffs that a further multiplier of 5 should be adopted for the widow for the period after the deceased would have normally ceased this employment, which he puts at about age 58, on the basis that he would have continued working at some other occupation. I cannot agree with this reasoning. Multipliers are intended to reflect and take account of the period of a man's working life to the usual age when he would have ceased work altogether. The multiplier of 12 here assumes that he would have continued working at this or some other occupation until retirement, and I see no good reason to add to it.

23. I also find that the multipliers proposed for the other dependents by Mr. Wong to be eminently reasonable and adopt them as follows:

Chu Pui Man	-	5
Chu Yuen Man	-	6
Chu Kam Wing	-	8
Chu Kam Hung	-	12
Tse Lo Yau	-	5

24. I accordingly assess and award the following sums for post-trial loss of dependency:

Mak Woon King ($1712.50 x 104 months)	$178100.00
Chu Pui Man ($2463.25 x 20 months)	$49265.00
Chu Yuen Man ($2463.25 x 32 months)	$78824.00
Chu Kam Wing ($2463.25 x 56 months)	$137942.00
Chu Kam Hung ($2463.25 x 104 months)	$256178.00
Tse Lo Yau ($500.00 x 20 months)	$10000.00
	$710309.00

Loss of accumulation of wealth

25. The evidence is that the deceased was a hard working man who did not waste any of his earnings, and had, over the 21 years since he came to Hong Kong saved considerable amounts of money, some of which was invested in property in China worth about $260000, and another sum of about $216666 which he invested in a knitting factory venture in China with his brother. This latter does not seem to have been a great success, but the original investment has now been repaid to Madam Mak. In addition to this, the family had about $30000 in savings at the time of his death. He was clearly a man saving and planning for the future, and, although there is little evidence of large savings in the 3 years immediately prior to his death, I consider it likely that he would have saved and invested the greater part of the surplus of his earnings, and the larger amount that would be available as the children became independent and upon the death of his mother. The average amount he had accumulated over his working life in Hong Kong of about 21 years comes to a little over $2000 a month. However, one must take into account that this included a period when he would have been earning much less than at the date of his death. In the circumstances I am of the view on the evidence here that his savings would amount to at least $2400 a month to which should be added the amount of the children's and his mother's dependency after he ceases to support them.

26. Taking the multiplier of 12, I accordingly arrive at a figure of $345600 for his savings of $2400 a month, to which must be added the children's share of expenses as follows:

Chu Pui Man ($2463.25 x (144 - 60 months))	$206913.00
Chu Yuen Man ($2463.25 x (144 - 72 months))	$177354.00
Chu Kam Wing (2463.25 x (144 - 96 months))	$118236.00
Tse Lo Yau ($500 x (144 - 60 months))	$42000.00
	$544503.00

which added to the sum of $345600.00 above gives a total of $890103.00 which is accordingly awarded under this head to the deceased's estate under the provisions of the Law Amendment and Reform(Consolidation) Ordinance Cap. 23.

Summary of totals

Pre-trial loss of dependency	$ 494620.00
Post-trial loss of dependency	$ 710309.00
Loss of accumulation of wealth	$ 890103.00
Bereavement	$ 70000.00
	$ 2165032.00

27. In view of my finding on contributory negligence, this figure must be reduced by 40% giving a total of $1299019.20. Further, the Plaintiffs must give credit for the sum of $1116225.00 received under the provisions of the Employees Compensation Ordinance, leaving a total of $182794.20.

28. As the total amount of the award for loss of dependency both pre- and post-trial, taking into account the reduction for contributory negligence, is less than that received as employees' compensation, I need to make no apportionment and I make no order in respect of interest on it. There will similarly be no order as to interest on the award for loss of accumulation of wealth, as this would not accrue to the estate until the deceased's normal expected date of death, and is therefore a future loss.

29. The only order as to interest is on the sum awarded in respect of bereavement, being $42000 ($70000 less 40%) upon which there will be interest at 11.26% from the date of the accident to the date hereof.

30. There will be an order nisi that the Defendant pay the costs of the Plaintiffs to be taxed, and that the Plaintiff's own costs be taxed in accordance with Legal Aid Regulations.