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Bhim Bahadur Rai v Fung Shing Hong, Hong Kong (A Firm)

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date17 September 2009
Year2009
Judgement NumberHCPI776/2007
Subject MatterPersonal Injuries Action
CourtHigh Court (Hong Kong)
HCPI000776/2007 BHIM BAHADUR RAI v. FUNG SHING HONG, HONG KONG (a firm)

HCPI 776/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 776 OF 2007

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BETWEEN
BHIM BAHADUR RAI Plaintiff
and
FUNG SHING HONG, HONG KONG (a firm) Defendant

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Before: Deputy High Court Judge L. Chan in Court

Date of Hearing: 15 September 2009

Date of Judgment: 17 September 2009

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J U D G M E N T

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1. This is a personal injuries action.

2. The defendant has been adjudged bankrupt on 6 May 2009. Leave has been granted for this action to continue under Section 6 of the Bankruptcy Ordinance. The Official Receiver has declined to adopt the defence of this action. The defendant appeared in person but has not really contested the claim. The defendant has previously filed a defence, an answer to the statement of damages and two witness statements.

Liability

3. The plaintiff was employed by the defendant on 1 October 2005 as a temporary worker in the defendant’s factory in Shek Kong, New Territories. His duty was to operate a vertical baling press machine to compact white plastic bags.

4. At about 9 am on 13 October 2005 when he was operating the machine, some plastic bags fell out from the unguarded upper part of the compaction chamber. He pushed them back with his right hand but his right hand was entangled by the bags and was crushed by the descending platen.

5. After the accident, the defendant, on the advice of the Labour Department, installed an upper front door to completely enclose the compaction chamber and to prevent access when the platen is in motion. The defendant, on the department’s advice, also installed an emergency stop button and a micro-switch on the machine to stop the platen in case of emergency.

6. The defendant was prosecuted by the department for contravention of Regulation 4 of the Factory and Industrial Undertakings (Guarding and Operation of Machinery) Regulations, Cap. 59Q. The defendant was convicted of the same on 9 May 2006.

7. The defendant has not challenged the above evidence. In the premises, I find the defendant liable to the plaintiff for negligence, breach of employer’s duty in failing to provide a safe system of work, and breach of the statutory duties under Regulation 4 of the Factory and Industrial Undertakings (Guarding and Operation of Machinery) Regulations.

Contributory Negligence

8. I refer to the judgment of Lord Greene, MR, in Hopwood v Rolls Royce Ltd (1947) 176 LT 514 at 520. I also refer to Lord Parker’s judgment in Staveley Iron & Chemical Co. Ltd v Jones [1956] AC 627 at 648. The contributory negligence alleged against the plaintiff was his carelessness in using his right hand to push the plastic bags back to the compaction chamber when the compressing platen was on the descent. But this was the very behaviour that Regulation 4 of the (Guarding and Operation of Machinery) Regulations set out to prevent. To hold the plaintiff guilty of contributory negligence in these circumstances is to defeat the purpose and intent of the regulation. I hold that the plaintiff is not guilty of contributory negligence.

Quantum

PSLA

9. The plaintiff was sent to Pok Oi Hospital after the accident. He had a large, ragged wound on the palm and the back of the lateral half of the right hand. The tendons and bones were exposed. The wound was bleeding actively. He was given pressure dressing and sent to the Tuen Mun Hospital.

10. On his admission to the Orthopaedic and Traumatology Department of the Tuen Mun Hospital, exploratory and debridement were performed. He had a 20 cm laceration in the forearm extending to the palm and another 10 cm C-shaped laceration in the hand. The median and outer nerves were crushed. The flexor digitorum superficialis of the second, fourth and fifth digits were ruptured and crushed. His flexor pollicis longus was completely ruptured. There was, however, no definite fracture.

11. The injuries to the tendons were beyond repair. A transfer of the flexor pollicis longus to another tendon was performed. Skin graft was performed on 20 October 2005. Flap coverage of the palm skin was also performed on 2 November 2005. He was then discharged on 16 November 2005 after hospitalisation for 34 days.

12. He was re-admitted to the hospital on 28 November 2005 because of superficial loss of the flap. Skin graft was performed again on 30 November 2005. He was discharged after 10 days on 8 December 2005. However, he was admitted to the hospital for the third time on 16 December 2005 for seven days for antibiotic treatment to the wound infection.

13. He had physiotherapy and occupational therapy from early 2006. The physiotherapy lasted for six to seven months, whilst the occupational therapy lasted for seven to eight months.

14. He now has five scars on the right hand. One is in the palm; another one is along the side of the right forearm; the third one is at the side of the right little finger; the next one is for the skin graft on the side of the upper forearm just below the elbow; and the last one is the skin graft to the back of the inner side of the lower right arm.

15. The plaintiff still complains of residual symptoms of the fingers and thumb and wrist of the right hand and weakness in the right hand. There was some decrease in flexion range of the fingers of the right hand and mild decrease of end-range movement of the right wrist. After the tendon transfer, there is weakness in flexion of the right thumb. There is also decrease in the...

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