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CHAU CHAK HUNG v. LOK KWOK SUM AND ANOTHER

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date07 December 1989
CourtHigh Court (Hong Kong)
Judgement NumberHCA6355/1987
Subject MatterCivil Action
HCA006355/1987 CHAU CHAK HUNG v. LOK KWOK SUM AND ANOTHER

HCA006355/1987
A6355/87

Headnote

Doctrine of res ipsa loquitur applied to a case of the unexplained descent of the blade of a paper cutting machine resulting in the amputation of 2 fingers of the operator.

Where, unknown to plaintiff, 2 businesses registered in the same name at the same address but with different proprietors, one proprietor of one such business held not liable to tic plaintiff as his employer.

Damages assessed.

1987, No. A6355
IN THE SUPREME COURT OF HONG KONG
HIGH COURT

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BETWEEN

CHAU CHAK HUNG Plaintiff

AND
LOK KWOK SUM trading as WAI HANG PRINTING COMPANY 1st Defendant
YIU CHUEN HOI 2nd Defendant

_____________

Coram: Deputy Judge Evans in Court

Dates of Hearing: 9, 10, 13 & 14 November 1989

Date of Delivery of Judgment: 7 December 1989

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J U D G M E N T

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1. The plaintiff sues both defendants for damages for personal injury arising from an accident at work which occasioned on the 30th October 1985 whilst in the employ of both defendants as a printing technician. He was then 24 years old. On that day he was on duty inside the defendants' workshop operating a guillotine for cutting paper for use in the printing process. As he was pulling a bundle of paper from the machine the guillotine knife descended through no cause of the plaintiff and cut through both his right index and middle fingers at the level of the middle phalanx. At Queen Mary Hospital, the middle finger was reimplanted whilst revision amputation to the right index finger was carried out through the middle phalanx. He was discharged from hospital after a week and after 6 Weeks the K wire that had been fitted in the right middle finger was removed and thereafter he had physiotherapy for approximately 9 months. He now uses an artificial finger extension on tike index finger.

2. The 1st defendant denies being the plaintiff's employer at all. The 2nd defendant admits that he is the plaintiff's employer but denies any breach of regulations or failure to guard, maintain, repair, inspect, instruct as alleged in the particulars of claim i.e. he denies that he failed to discharge a common law duty of care to the plaintiff or was in breach of statutory duty in his regard. He says that the plaintiff was a skilled technician with knowledge of the operation and safety features of the cutting machine. He contents the circumstances under which the plaintiff suffered the injury and expressly disputes that the knife suddenly descended of its own accord.

3. The machine on which the accident happened is a China made paper cutting machine. When tae paper is positioned a cutting knife descends at high speed and cuts the paper to the required size and then the blade returns to its original up position. The machine is turned on and off by two independent buttons of the left hand side of the machine. It is also fitted with a pair of lever type controls. When the machine is turned on the cutter will only descend if both levers are pressed fully downwards at the same time by the operator. It will not work if only one lever is depressed. A worker's two hands need be engaged on the two levers before the machine will operate.

4. On the 30th October 1985, on the plaintiff's account, he was alone in the shop premises during lunch time cutting paper on the paper cutter. He had worked the machine frequently in the past and was required to do so as part of his duties, inter alia, when not printing. He had become employed by Wai Hang Printing Co. as an offset printing machine operator in March 1983. It was a small firm and so when not enough work to engage him fully in printing he was required to do other things including making deliveries and cutting paper.

5. The plaintiff was working during lunch time as he intended; with the 2nd defendant's approval, to leave early that day. He had been instructed by the 2nd defendant to cut quite a large quantity of paper and he was about half way through the pile when the accident happened. He pressed the two levers down and the knife came down and cut the paper and retracted to the up position. He put his right hand into the machine to yet out the cut paper and at that time the cutter came down again and sliced his fingers. He had not pressed anything and the cutter should have remained locked in the up position until the levers were once again depressed for a cutting cycle. He got himself to hospital but he cannot remember now.

6. It was the plaintiff's evidence that some 2 - 3 months prior to the accident he had been operating the cutter and it had come down in the same way from the up position without the levers being pressed. He had reported this malfunction and the 2nd defendant got his brother and a Mr. Koo to inspect and repair it. The 2nd defendant's brother, on the 2nd defendant's account, is a mechanical engineer in business on his own who he employs from time to time to inspect and repair as necessary all the machines in the factory, Mr. Koo was apparently the main printing press operator. The plaintiff saw these men open up the machine and appear to repair it. He was himself operating a printing machine at the time so he did not pay particular attention to what they are actually doing.

7. The 2nd defendant genies that the plaintiff had told him of a fault or that he had caused it to be looked at. There was, according to him, no such incident. It is his evidence that on the day of the accident, on his instructions, at about 12.30 p.m. the plaintiff began cutting paper on the cutter. At 1.00 p.m. lie stopped with the other workers and they all left the factory. The 2nd defendant turned off the lights and locked up. He came back a few minutes before 2.00 p.m. and learnt from neighbours that there had been an accident. He entered the premises and found a worker, Ah Ming, inside (all employees had keys). This Ah Ming did not know anything about an accident but when the 2nd defendant looked around he found blood on the cutter. Soon after that the police contacted him and told him about the accident. It is the 2nd defendant's evidence that when he first got to the cutter after lunch it was off and in a normal state. The cutting assignment he had given the plaintiff had, he says, clearly been completed as the paper was all cut and stacked at the side of the cutter.

8. After the accident the machine was inspected by an officer from the Labour Department. He found nothing wrong with the cutter. Some 3 weeks later, Mr. Ng Yiu Kee a factory inspector from the sane department also visited the premises. He found that the speed of the cutting knife is high. The knife comes down in about l second and retracts in about 1 - 1 1/2 seconds. He ventured the opinion, which I accept, that it is unlikely an operator would have sufficient time after pressing the 2 hand control levers to reach into the trapping zone of the machine. He said that for the cutter to descend without pressing the levers would involve mechanical failure of the gear drive mechanism controlling the cutter and that in order to prevent such an accident there should he rountine inspection and maintenance. He did agree, however, that it was possible for the cutter to descend by gravity if the motor was cut off before the knife returned to the locked position.

9. I accept the plaintiff's version of events as to how the accident happened. I find honest. I also accept that there was an earlier incident involving malfunction of the cutting machine. Indeed he has told Mr. Ng of it when interviewed by him. It was also Mr. Ng's evidence that the 2nd defendant had told him in his interview that whilst the plaintiff was retracting paper the cutting knife suddenly decended. There was no evidence that he had told the inspector that the job had already been completed when he returned to the factory.

10. The 2nd defendant said that he had not previously ever turned off the machine before the knife had retracted. He had not seen others do it. His contention that that is what the plaintiff may have done is reduced in appeal by the way he says he found the cutter to be when he returned to the factory. There was blood on the cutter but he did not see any on the stacked paper. The machine was off and there were ho offcuts in the trapping zone. It seems to me to be unlikely indeed that the accident occasion just as the plaintiff had finished up, including removing waste, out before he withdrew his hand. If the motor was turned off before the blade had fully retracted then there would be quite insufficient time to recover the cut material, and whatever waste there was, prior to the cutter falling.

11. In finding that I accept the plaintiff's evidence I have had to decide matters of credit as the plaintiff and the 2nd defendant are opposed regarding the earlier failure of the cutter and indeed what the plaintiffs did at the time of the accident and as to whether the work had been completed or not. Apart from the matters to which I have referred, in a determination of here the truth is, I have had in mind that which I regard as the gery suspect account offered by the 2nd defendant - and indeed the 1st defendant - in relation to the businesses conducted at the address when the accident occasioned to which I small later turn.

12. There was therefore both an accident oh the 30th October 1985 and an earlier malfunction of the cutter a few months previous both as the plaintiff described. At trial the plaintiff abandoned the allegation of breach of statutory duty i.e. failing to guard dangerous parts of the machine and proceeded on the basis that the accident was caused by the defendants' negligence. To prove that negligence he relied on the doctrine of res ipsa loquitur.

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