LAW CHI HUNG v. AIRPORT AUTHORITY AND ANOTHER

HCPI1058/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1058 of 1999

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J U D G M E N T

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1. This is a claim by a 41-year old air-conditioning fitter for damages for personal injuries suffered by him over three and a half years ago, when he was trapped between a ferry, the "Man Loi", and part of the landing stage on a pontoon at Edinburgh Pier. He was on his way home at the end of the working day with his brother and a co-worker.

2. The ferry concerned, owned by the 2nd defendant, was doing a regular shuttle between Central and the Chek Lap Kok Airport construction site, and the reverse journey. Originally the Airport Authority, no doubt as charterer of the ferry, was also a defendant but the action has not proceeded against it.

3. The plaintiff had been using the ferry service for a few weeks before his accident. It is clear that the "Man Loi" was not the only ferry providing the transport service for the construction workers.

4. On the day of his accident, 18 March 1997, at around 7 pm the ferry was, according to the records, not full. It may have been full on this regular service on other occasions. The plaintiff had occupied a seat near the bows of the ferry on the lower deck. As the ferry closed to berth alongside the pier pontoon he got up and so did many others on board. It is well known that despite oral and written warnings on board many ferries to passengers to stay seated until the ferry had berthed and the gangway was dropping, many passengers habitually leave their seats and form a mass of persons eager to disembark at the earliest moment.

5. They know, as any reasonable person knows, that the reason for such warnings or advice is that there is always a risk of sudden movement of the ferry, or of it hitting the pontoon stanchions with some force because of swell, thereby causing passengers to lose their balance and fall, and possibly strike some object. Anyone who ignores such warnings does so at his or her own risk. It is just not feasible, practical or reasonable, to provide a crew of such a size that it can prevent passengers ignoring such warnings and control such a mass of eager humanity.

6. The plaintiff in this case, and his co-worker Mr Kwong Chi-ho, well knew of such warnings yet chose to join the gathering mass on the starboard side, which was the berthing side of the vessel. Their evidence is unequivocal on this point, whether or not they actually recall hearing a specific warning on that occasion. There were several notices on this ferry.

7. How then did the plaintiff get into the position, whatever that was, in which he was caught between the vessel and the pier thereby sustaining crush injuries? We must start with the pleadings.

8. The pleaded case

9. Paragraph 3 of the Statement of Claim is a short statement of what the plaintiff did and how he came to be injured. It merits direct repetition.

"The plaintiff was standing near the starboard front of the ferry tying his shoelace. Whilst the ferry was still in motion many passengers rushed to the exit of the ferry. As a result the plaintiff was pushed by the crowd, lost his balance, and fell out from the starboard side of the ferry."

10. The particulars of negligence which flowed from that version of events included the usual general 'belt and braces' allegations relating to duty of care. The more specific ones on which a case has to be focused were, a failure to erect railings to prevent passengers from falling off the ferry, and in the alternative, a failure to seal off the part of the lower deck, where there were no railings, to prevent passengers from falling out of the ferry. The second more specific allegation is that there was a failure to instruct and/or warn passengers to remain seated until the ferry was moored.

11. There is a second allegation, that the defendant failed to take appropriate steps to ensure that passengers remain seated whilst the ferry was in motion. I propose to deal with this aspect of the plaintiff's case shortly. All the evidence satisfies me that there was sufficient warning, that the plaintiff knew of such and that is was wholly impractical to devise any system of forcible imposition of that advice. The passenger load on this ferry was adult and experienced; they knew the risks of getting up from their seats before berthing.

12. That leaves the prime allegation of absence of railings so as to prevent passengers from falling off. This immediately brings about a focus upon those parts of the ferry bulwark which had no railings. Attention is then directed to Photographs 1 and 4 of Exhibit P1. These are the areas which have no rails but which are areas through which the crew secure the vessel alongside, hence the mooring posts.

13. The Statement of Claim was served in March 1999. In April 2000, at about the time the plaintiff signed his statement or proof of evidence, Further and Better Particulars were supplied which demonstrated a significant shift in the story.

"He was about three metres from the gangplank when he stopped to tie his shoelace of the shoe on his right foot."

14. They went on to include the following:

"After he had been pushed by the crowd he lost balance and his right foot fell outside the bulwark because there was a narrow open gap in the bulwark. His whole body was then pushed outside the bulwark of the ferry. His both feet stood on a protruded edge of the ferry with his hands holding onto the top of the bulwark."

15. Finally:

"He fell forward through a narrow open gap in the bulwark."

16. There was even then no mention of a door or gate being open or partly open, or being forced open by pressure.

17. The case on the evidence

18. The plaintiff testified that he left his seat and walked along the starboard side to the gangway, as had many others. He reached the two gates shown in Photograph 1, and because he became aware that the lace of his right shoe was undone, he put his foot up on the ledge of the gate or door shown in Photograph 1. The crowd of passengers who had left their seats and built up around him pushed him sideways causing him to lose his balance and their pressure forced him through a gap in the doors on to the ledge outside the ferry. The pressure forced him to step outside the doors. He found himself on the ledge, unable to get back onto the vessel proper because of the mass of people. It was in this position that he was caught between the berthing vessel and the pillars of the landing pontoon.

19. It was apparent from his evidence that he was able to put forward this explanation for his being outside the vessel, on the ledge or platform, only after having seen photographs and a plan of the vessel. What is unarguable is that this version of events is significantly different from the pleaded version.

20. It also emerged from his evidence that he had travelled on this ferry, or its substitute, on many occasions subsequent to his accident, yet he had not at any stage applied his mind to considering how and where he came to be forced out of the deck on to the exterior ledge or platform. I find this puzzling, not to say astonishing. Given his experience on the occasion of his injury, I would have expected him to have applied his mind to consider how and why he came to be forced out, if that is in fact what happened, if only out of normal curiosity. Yet he did not do so. Although on occasions it may have been a different vessel, the innate curiosity or concern ought to have been there.

21. It is important to bear in mind that this accident was not reported to the ferry skipper or the company at the time. The plaintiff, though apparently in some discomfort, continued on after his exit from the ferry, however achieved, towards his home but made his way to hospital later, when pain became intolerable.

22. It was not surprising, in the light of the evidence adduced, that Mr Law, on behalf of the plaintiff, should seek to re-amend the Statement of Claim to bring the pleaded case into line with the plaintiff's oral version of events. The initial amendment to the Statement of Claim had been simply in respect of the title or names of the defendants and not in relation to the case.

23. I considered the additional allegation of negligence which Mr Law sought to add, but it seemed to me too vague, given the case now being put forward on the evidence, and in any event there was to be no amendment, it appeared, in respect of the circumstances of the accident, set out in paragraph 3 of the Statement of Claim. It was also extremely late in the day.

24. Although the defendants were not in a position to argue that the new case took them by surprise - the plaintiff's statement had been in their possession for some time, and it put forward a case differing from that pleaded - it was apparent to me that the overall lack of precision in the amendment as put forward, nonetheless put them in some difficulty. That is not a point of criticism of the pleader, because there may well be good reason why a, or the plaintiff cannot precisely state his case. The plaintiff however had still not grasped the nettle and so I declined to allow any such amendment.

25. At a later stage Mr Law sought to renew his application to bring his pleaded case into line with the evidence by putting forward an amendment to paragraph 3 of the Statement of Claim. In my view there remained enough prejudice to the defendants at this stage, as Mr Barretto for the defendants argued, to justify my refusing this application. The plaintiff's case still lacked precision and the case now constructed on the basis of a view of the photographs and plan lacked the essentials.

26. I was also puzzled as to why there was no mention at the outset of a gap caused by an open, or partly open door in these circumstances. The plaintiff cannot fail to have been aware of the door being open, or opening under pressure once he was outside the ferry on the ledge. Since he said he was holding on to the rim of the bulwark, or ledge of the bulwark or metal door, and trying to get back in, he must have been aware of what had brought about the opening in the bulwark, if there was such. He cannot fail to have seen an open door if there had indeed been such an open door. I do not find his version of events credible in the light of all the circumstances and the aspects of his own evidence.

27. The plaintiff's case did not gain anything from the evidence of his co-worker, Mr Kwong Chi-ho, who had also seen photographs and a plan before he was able to say anything about the gates shown in Photograph 1. He said he saw the plaintiff trying to tie his shoelace, with people around him and to the right and left of him as he did so. He added that he was able to see a gap between the gates shown in Photograph 1. He could not elaborate on this save to say that he could see the sea through the gap. If that was so, the ferry must have been somewhat short of the berth at the pier. It was only in his second statement, of September 2000, that he made mention of this gap. I do not doubt that if he was looking towards the plaintiff he would have been in a position to see any significant gap between the doors, or gates, referred to, possibly as there were spaces between persons passing the plaintiff, if only momentarily. But I do not accept that he saw any such gap of any such size and of the nature he describes.

28. Like the plaintiff, he is vulnerable to suggestibility following a consideration of the photographs and plan, and the problems consequent upon a form of reconstruction. In the light of the plaintiff's testimony about being forced through a gap in the doors, I fail to understand why this was not his case from the outset. If he put his foot upon the ledge of the bow side starboard gate, or door, and a gap existed between the two doors or the gates on that side, this, as a matter of logic, would have been his case from the outset. It must have been obvious to him then. I reject his evidence as to the gap.

29. In my own view, if he put his foot upon the ledge or part of the bulwark to tie his laces, which I accept may well have happened, he could have been forced over the bulkhead on to the outer ledge of the ferry as a consequence, by the crowd which had gathered behind and around him. I am bound to say that such a stance on his part was at the least imprudent. He was poorly balanced and vulnerable to the pressure of the disembarking crowd, which he had of his own volition joined, as well as being vulnerable to sudden movement of the ferry due to swell or manoeuvre or striking the pontoon.

30. I do not accept his explanation as to why he did not take a seat to tie his laces, as a reasonable one. It would obviously have been a safer course than the one he chose. In fact, the seat, as measured on our view of the ferry, now laid up, is approximately 39 inches from the bulwark, a matter really of one pace backwards, sideways, or forward. Having joined the crowd leaving the seats prematurely, he was, in any event somewhat vulnerable to the forward or unpredictable momentum of such a group as the vessel manoeuvred for berthing.

31. Mr Law, and Mr Barretto for the defendants, agreed to my suggestion that it might be worthwhile visiting the "Man Loi" which, as I said, is presently laid up, in order to see the layout of the starboard side forward of the gangway, and invite the plaintiff to demonstrate what he did and where he did it. As a consequence of that visit I formed the following conclusions: that the plaintiff, having demonstrated on board the ferry where he put his foot to tie his lace, could well have been forced by the momentum of the crowd over the bulwark between the two tubular bars of the two gates; and, that if there was a gap created by the door or gate being partly open, or being forced open by pressure, he could not have failed to notice that at the time and that would have been his case from the outset. Another improbable aspect of his story is that, if he had indeed been forced out through such a gap, he could not manoeuvre himself back on board.

32. In the light of his oral evidence, the pleaded case as to the absence of railings falls away. There was quite adequate railing at the point where he put his foot up, or where he says he put his foot up, and where he says he was forced off the vessel. His estimate of the distance between his position with his foot up and the gangway was three metres. In fact it is over six metres. A distance of three metres would put him in a position by the bulwark near the mooring bollard, or post, where there are no railings. In that position it was still unwise of him to put his foot up there to tie a lace when he ought to have sat down on a seat to do it. But of course it is not his case that he was in such a position. Even if that had been the case, I would not have been prepared to find the defendant in breach of its duty of care. The bulwark is high enough to protect passengers disembarking properly at the appropriate time. That apart, I would not be prepared to criticise him for his estimate of distance.

33. One other issue emerged but which did not really form part of the plaintiff's case, and that was that the ferry was overcrowded. With a recorded passenger list of 411 that is unlikely. It is well below the provision for the number of passengers in excess of 590, if I recall correctly. But the relevance of possible overcrowding is not readily apparent. The plaintiff well knew that there was a substantial crowd of passengers seeking to disembark. He joined them. In fact he may well have been to the fore. In my judgment, any degree of overcrowding, even if there had been such, played no part in this incident.

34. Mr Yeung, the defendant's coxswain, gave evidence of seeing someone lying on the lower level of the landing pontoon aft of the gangway, with five or six persons around him. I have serious doubts as to whether his recollection is correct, or such recollection relates to this particular day. He was asked to apply his mind to the matter three years later. I do not think his evidence assists one way or the other, but that is no reflection upon him.

35. Conclusions

36. Much has been made of the warnings, written and oral, against passengers jumping ashore from the ferry at points other than the gangway. It is in my view a matter of common sense that it would be extreme folly to attempt to disembark by this unorthodox method. The risks are obvious. Mr Kwong Chi-ho, the plaintiff's co-worker, agreed with me that it would be a stupid action. It is known that some passengers do jump ashore by this uncondoned method. I do not think the defendants can do anything to deter such action other than by announced and visible warnings by signs to the effect that it should not be done. It is not practical or reasonable to require the size of the crew to be increased to such proportions as to be able physically to restrain such adult persons hell-bent on this means of disembarkation.

37. Although it is part of the defendants' case that this may well be what the plaintiff in fact did, I am not prepared to make such a finding. In fact I am inclined to the view that he did not try to jump ashore from the enclosing bulwark. I do not think that he would be that foolhardy. He may well have been pushed over the bulwark by the force of the crowd which had gathered to exit the ferry by means of the gangway. That was not due to any omission on the part of the defendant, but to the negligence of the plaintiff in putting himself in an extremely vulnerable position, quite unnecessarily, when he was tying his shoelace.

38. I can envisage his being pushed sideways through or over the narrow gap in the railings on that starboard side. I am not satisfied that he was in fact pushed outside the bulwark at the point he alleges in his evidence. It may have been further aft, nearer to the gangway. So much has been reconstruction in his own mind, as well as that of his witness, that there is considerable uncertainty as to this. He had put himself amongst that eager to disembark crowd, quite unnecessarily, and trying to tie a shoelace in that position in those circumstances, was at the very least risky.

39. Ferry operators cannot he held responsible for the consequences of such action by passengers in such circumstances. Accordingly, although it is far from clear in my own mind how the plaintiff came to be outside the starboard bulwark, I hold that the plaintiff was the author of his own misfortune, on his own evidence.

40. Although I declined to allow the plaintiff to re-amend his Statement of Claim to plead his case in accordance with his oral testimony, I have concluded that his testimony, if a true account of what happened, save as to any gap between the doors or gates, demonstrates his own error of judgment for which the ferry operator can in no way be held responsible. I am quite satisfied that there was no gap between the doors or gates which would allow any person to be forced through. I am also satisfied that neither gate was open or ajar and thus unsecured. In my view, the suggestion to that effect has arisen from sheer supposition, after the event and without substance.

41. In my judgment therefore, this claim fails and there must be judgment for the defendant, with costs.