LEUNG LAI YIN v. YEUNG KEI CHI AND OTHERS

HCPI 317/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 317 OF 1999

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J U D G M E N T

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The facts:

1. The plaintiff was a master carpenter employed by the 1st defendant who sub-contracted carpentry work from the 2nd defendant, a decoration contractor. The work was to be performed in a residential unit in Taikoo Shing. He was given a key to the premises by the 1st defendant and was to work on his own without supervision. When he started work on 17 April 1996, a circular saw had already been mounted on a saw bench for him to use. The bench was about 6 feet long and was placed in the middle of a room 19 feet in length. There was no guard covering the saw blade. The plaintiff tried to look for one and could not find one in the room.

2. On the following day, he had to cut some wooden boards from the size of 8 feet by 4 inches to 8 feet by about 2 to 3 inches. He adjusted the guide on the bench against which to slide the wooden boards to the saw blade. While cutting one of the wooden boards, which happened to be a little longer than the others, the board hit the wall and bounced upward. As a result, he lost balance and staggered forward. His left hand was injured as it hit the unguarded saw blade.

Breach of employer's duty of care:

3. The case proceeded against the 1st defendant by default. In his defence, the 1st defendant admitted to be the employer of the plaintiff. Accordingly, he owed a non delegable duty of care towards the plaintiff to provide a safe system of work, a safe place of work and safe tools with which to do the work. He provided a circular saw mounted on a saw bench for the plaintiff to work with. The saw blade was unguarded and exposed. A motor driven circular saw with an exposed saw blade is a highly dangerous tool. Hence there are statutory provisions for guarding and fencing such tools, if used in an industrial undertaking. It is reasonably foreseeable that an employee will suffer serious personal injury if he should come into contact with the saw blade. By providing the plaintiff with this dangerous tool without a guard, the 1st defendant was in clear breach of his common law duty of care to provide his employee with a safe system of work and safe tools with which to work. Miss Lee properly conceded that the 2nd defendant as principal contractor did not owe this duty to the plaintiff.

Breach of statutory duty:

4. The plaintiff's case against the 2nd defendant is based on the 1st and 2nd defendant's breach of statutory duty to cover the saw by a strong and easily adjustable guard and to keep a suitable push-stick available for use at the saw bench. The statutory duties relied upon are those under regulation 10(4) and regulation 11 of the Factories and Industrial Undertakings (Woodworking Machinery) Regulations.

5. By regulation 2, these Regulations shall apply to any industrial undertaking in which any woodworking machine is used. There is no dispute that the saw in issue is a circular saw within the meaning of regulation 3. The issue is whether the domestic flat where the accident took place was an industrial undertaking to which the Regulations are applicable.

6. "Industrial undertaking" is defined in section 2 of the Factories and Industrial Undertakings Ordinance as including in particular under paragraph (e) "any construction work" and under paragraph (i), "any premises ... in which ... any of the foregoing industrial undertakings (including construction work) is carried on."

7. "Construction work" is defined to mean

(a) the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in the Third Schedule;"

(b)

(c)

8. The structures and works specified in the Third Schedule are:

"1. Any building, edifice, wall, fence, or chimney, whether constructed wholly or partly above or below ground level.

2. Any road, motorway, railway, tramway, cableway, aerial ropeway or canal. (Amended 19 of 1976 s. 32)

3. Any harbour works, dock, pier, sea defence work, or lighthouse.

4. Any aqueduct, viaduct, bridge, or tunnel.

5. Any sewer, sewage disposal works, or filter bed.

6. Any airport or works connected with air navigation.

7. Any dam, reservoir, well, pipeline, culvert, shaft, or reclamation.

8. Any drainage, irrigation, or river control work.

9. Any water, electrical, gas, telephonic, telegraphic, radio, or television installation or works, or any other works designed for the manufacturing or transmission of power or the transmission or reception of radio or sound waves.

10. Any structure designed for the support of machinery, plant, or power transmission lines."

9. Mr Chong for the 2nd defendant referred to Ma Kam Yeung v. Fu Hay Kin, [1998] 2 HKLRD 615 where Deputy Judge Gill, after citing the regulations I referred to above, held at 631:

"As to whether Pole and Log is liable is dependent upon whether the activity undertaken by it at D1's premises could be said to have fallen into the description of an industrial undertaking. I am satisfied it did not. Having repeated the only definition which might trap Pole and Log, namely para.1 of the third schedule, I am satisfied that on an ordinary interpretation the decoration work, although extensive, fell far short of falling into the definition categorised here."

10. Miss Lee who appeared for the plaintiff in this case was also the counsel representing the plaintiff in Ma Kam Yeung v. Fu Hay Kin. She submitted that the Third Schedule refers to "any building" and "construction work" includes redecoration which was what the plaintiff was engaged to do. The facts of the present case are indistinguishable from those in Ma Kam Yeung. Miss Lee's submission did not find favour with Deputy Judge Gill, nor does it with me.

11. The part of the definition of "construction work" relied upon by Miss Lee is "the construction or maintenance (including redecoration) of any building". These words have to be interpreted in their proper context and not by merely considering the word "redecoration" in isolation. Hence, decoration or redecoration work as such are not construction work within the meaning of the Ordinance, unless they form part of the maintenance work of the building. Obvious examples would be removing defective plaster, rendering the wall surfaces, covering up exposed concrete, and fixing decorative tiles or even marble slabs. They have to be works that have to do with the "well-being" of the building as a whole. Redecoration work in common areas of the building, such as the external walls, the lobbies and corridors are common examples. It may also cover maintenance work of a structural nature inside individual flats which affect the building as a whole. But by no stretch of imagination can it cover internal decoration work inside individual units done for the personal enjoyment of the individual owners, such as making cupboards, wardrobes or beds. I, too, come to the conclusion that the decoration work the plaintiff was engaged in were not construction work within the meaning of the Factories and Industrial Undertakings Ordinance. Therefore the work or the premises where the work was performed was not an industrial undertaking within the meaning of the Ordinance. Accordingly, the Factories and Industrial Undertakings (Woodworking Machinery) Regulations do not apply to the circular saw used by the plaintiff. There could not be any breach of the regulations either by the 1st or the 2nd defendant. Hence the 2nd defendant escaped liability.

12. Even if the decoration work were construction work and the premises were an industrial undertaking to which the regulations were applicable, the 2nd defendant was not the proprietor of that industrial undertaking charged with the obligation of observing the regulations. "Proprietor" is defined in the Ordinance as being 'the person for the time being having the management or control of the business carried on in an industrial undertaking or notifiable workplace." The business in which the plaintiff was engaged was the 1st defendant's business and not the 2nd defendant's. While the 2nd defendant as the principal contractor had certain control over the 1st defendant or the quality of or progress of work, he did not have management or control over the business itself. He could not, for example, purchase tools and equipment to be used by the 1st defendant's employees, nor could he give them directions or instructions. He could not manage the 1st defendant's business, control its funds, pay its bills, collect its dues or budget its finance. He was just a principal contractor. In that position, he may attract certain "vicarious" liability, such as liability for payment of wages and employee's compensation in respect of employees of his sub-contractors. But he is not under an obligation to ensure compliance with statutory duty imposed on his sub-contractors, which is a duty imposed on the proprietor.

Causation:

13. Though the 1st defendant did not appear, I shall nevertheless consider for his benefit the question of causation and contributory negligence raised by Mr Chong on behalf of the 2nd defendant. Mr Chong submitted that the plaintiff should have used a push-stick instead of his hand in feeding the board to the saw. However, the fact of this case is that the board bounced back and the plaintiff lost balance and staggered forward with his hand hitting the blade. The fact that a number of his fingers were cut supports the conclusion that the plaintiff's hand hit the blade from above rather than he pushed his hands into the blade along with the board. Thus the cause of the injury is not the absence of or the plaintiff's failure to use the push stick. It is the absence of a guard.

Contributory negligence:

14. I dismiss Mr Chong's suggestion that the plaintiff had been sleepy and caused or contributed to the accident. Even accepting that the plaintiff had been sleeping during lunch time and then started to work immediately as he woke up, there is simply no evidence that it was his sleepiness which caused the accident.

15. In fact, the authorities have gone much further in favour of the employee. In John Summers & Sons Ltd v. Frost [1955] AC 740, Lord Keith indicated that "momentary inadvertence" is not enough, and something like 'disobedience to order", or "reckless disregard by a workman of his own safety", must be proved before he can be held contributory negligent.

16. The plaintiff was provided with an unguarded circular saw and was told by the 1st defendant to use that saw on the first day he worked. According to the 2nd defendant, the saw was in fact a hand held saw fixed to the bench, presumably from under and downside up with the blade protruding through a gap on the surface of the bench. Hence, the built-in guard was at the underside of the bench and not on the surface. The 2nd defendant said he never saw any guard on such an equipment. Probably he is right. But unfortunately, this is the usual type of equipment one sees being used by decoration workers everyday. There was no other saw he could work with. It was also not the type of tool he could bring with him to work every day like his hammer or pliers. The plaintiff really had no choice. He has either to accept the risk or quit the job.

17. On these facts, to what extent can I hold the plaintiff blameworthy in part as an "author of his own wrong"? He was given an unguarded saw and told by his employer to work with it. He had no choice but to take the risk or to submit to the curtailment of his activities. The risk was one created by the negligence of his employer and was one which a reasonably prudent man in his position would take rather than to curtail his activities. I do not think any blame could be attached to him for taking the risk working with the unguarded saw: see Clayards v. Dethick (1848) 12 Q.B. 439.

18. He may have been careless in not checking the length of the board to be cut, which hit the wall and caused the accident. For my part, this cannot be described as anything other than the sort of inadvertence or momentary inattention for which the employee should not be held contributory negligent: see Lord Keith's dicta in John Summers & Sons Ltd v. Frost. I am unable to attribute any part of the blame for the accident to the plaintiff.

Quantum:

19. The plaintiff was born on 17 June 1963 and was aged 32 at the time of the accident. He is now aged 36. He suffered near amputation of his left index and ring fingers while his middle finger was amputated. He had undergone 5 operations and a course of physiotherapy and occupational therapy. He is now able to return to his original occupation as a carpenter, though at a disability.

20. Miss Lee submitted that the case fell within the lower end of the serious injury category and that a sum of $500,000 to $550,000 for pain suffering and loss of amenities is appropriate. She referred me to the case of Lo Chi Bun v. Leung Wah Kwan, HCPI No. 1984 of 1997. The plaintiff in that case was also a carpenter and suffered a severe deep cut over the dorsum of his right (dominant) hand. He had six operations and physiotherapy. He could not use his ring or little fingers and could not return to his original employment. He was awarded $480,000 as being within the category of a serious injury. In Ma Kam Yeung, the worker suffered a severe cut between his thumb and forefinger. The thumb was saved. He was awarded $350,000. The plaintiff's hand injured is not his dominant hand and the plaintiff is able to return to his occupation. It cannot be said that the disability marred his general activities and enjoyment of life. Having consider these and other cases, I think the plaintiff's case falls just below the serious category and an award of $400,000 allowing for inflationary trends is appropriate.

21. For pre-trial loss of earnings, the plaintiff earned $16,100 a month at the time of the accident. After the accident, he could only work 18 days a month and earn $500 per day. There was also a period between 1 August 1997 and 31 December 1998 that he could only work 13 days a month because of difficulties in adjusting to work with his disability. The plaintiff admitted that but for the economic downturn, he would have been able to work 20 days at $800 a day, which is a rate lower than that shown by Government statistics. His average earning before the accident and now is therefore $16,050 per month. On the above basis, I assess his pre-trial loss of earnings to be $626,992.04 which is broken down as follow:

$16,050 per month X 15.2 months	$243,960.00
$[$16,050 - ($500 X 13)] X 17 months	$162,350.00
[$16,050 - ($500 X 18)] X 14.87 months	$104,833.50
	$511,143.50
Interest at 5.575% for 47.3 months	$115,848.54
Total:	$626,992.04

22. He was 32 at the time of the accident and is now 36. The appropriate multiplier for his future loss of earnings is 14. It is unlikely that he will be able to earn more than he is now earning. His loss of future earnings is therefore assessed to be $1,176,000.00 (i.e. ($16,000 - $500 X 18) X 12 X 14).

23. I allow him one month earning for each of those 14 years as loss of earning capacity to compensate him for the disadvantage he would suffer in the labour market as a result of his injury. This is assessed to be $126,000 (i.e. $500 X 18 X 14).

24. I also allow his claim for special damages of $9,904 together with interest at 5.75%, i.e. $2,244.70.

25. The total award is therefore:

(1) Pain, suffering and loss of amenity:	$400,000.00
(2) Pre-trial loss of earnings:	$626,992.04
(3) Loss of future earnings:	$1,176,000.00
(4) Loss of earning capacity:	$126,000.00
(5) Special damages:	$12,148.70
:	$ 2,341,140.70
Less Employees' Compensation received:	$ 350,000.00
Total:	$ 1,991,140.70
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26. I therefore enter judgment in favour of the plaintiff against the 1st defendant in the amount of $1,991,140.70 with costs. The plaintiff's claim against the 2nd defendant is dismissed with costs against the plaintiff. All costs are to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.