LAM FONG v. OCEAN UNITED BARGE AND ENGINEERING CO LTD

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JUDGMENT

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Cons, V.-P.:

1. This is an appeal against the decision of Nazareth J. whereby he awarded $375,220 damages, with interest thereon, to the administrator of the estate of one Yip Ka deceased. We are concerned in this appeal only with the question of liability, not with the amount of damages.

2. Mr. Yip Ka was a crane operator employed by the Defendant Company on a site in Tsing Yi Island. The site was used as a container storage depot. Mr. Yip's job was to move the containers. He had been doing so there for four years. He drove one of the three cranes on the site. It was a very large machine, running on ten large wheels and capable of lifting 25 tons. The machine itself weighed something like 30 tons.

3. About 8.30 p.m. on the evening of the 30th October last year, he was found trapped in his overturned crane about 1 to 2 miles away from the site and at the foot of a fairly lengthy incline. It would appear that the crane had first collided with either the side of the hill or with a trailer parked at the side of the road. When it had overturned, it had trapped him inside, causing injuries from which he subsequently died. But there is no direct evidence as to how the accident happened.

4. It is an accepted fact that the container storage depot was closing down that day, and the Defendant and his crane were required to be at a new site by the following morning. Where the accident occurred was in fact on a road which does lead to the new site.

5. A Mr. Leung, who is in charge of the Defendant Company's operations gave evidence that earlier that day he had given instructions to Mr, Yip Ka, and confirmed them again in a telephone conversation at either 7 or 8 o'clock in the evening, to wait for him at the site and that he, Mr. Leung, would be there at 8.30 p.m., after which, having checked that the site and the crane were in good order, he would make arrangements for the crane to be towed to the new site. That would have been the proper way to get the crane to the new site, for the crane had no road licence entitling it to be driven on a public road and Mr. Yip Ka had no licence entitling him to drive such a vehicle on a public road. The towing would have cost the Defendant Company between three and five hundred dollars.

6. Mr. Leung gave further evidence that when Mr. Yip first joined the Company he had given him instructions that on no account should the crane be driven outside the actual working site. He had given similar instructions to other crane drivers who had joined the Company after Mr. Yip and that it was possible that Mr. Yip would have overheard those instructions being given. Moreover, if any of the drivers had taken a crane outside the site, he would have dismissed them from the Company's employment. He did not specifically say that he had mentioned that sanction to Mr. Yip or the other drivers.

7. The judge however was not impressed with the evidence of Mr. Leung, partly from what he observed of his demeanour when being examined and cross-examined, and partly because of rather significant discrepancies between what Mr. Leung had told the police and the court on the one hand and what had been contained in the form which he had sent off soon after the accident to the Commissioner for Labour on the other.

8. The immediate questions of fact that arise are: What was Mr. Yip doing with the crane on the road at that time? and Was he there with the agreement, either tacit or express of Mr. Leung?

9. Other than that the crane was on its way to the new site no satisfactory explanation has been put forward for its presence on that road. Furthermore, if it were that Mr. Yip had taken it out on a frolic of his own, then he left himself very limited time in which to complete it. Exactly when the accident happened is not known. At least it was after 7 p.m., which is the earliest time given by Mr. Leung for the telephone conversation. Possibly it was later, even up to 8 p.m., and Mr. Yip knew that Mr. Leung would be at the site at 8.30 p.m., and that he would come along the very road which he, Mr. Yip, was intending to use for his own purposes.

10. There is of course, as suggested, a possibility that Mr. Yip intended, if caught, to trade upon the esteem  in which he was apparently held by the firm. But he must have known that to take such a vehicle out of the site on a frolic of his own would amount to an extremely secious dereliction of duty, and the reputation which Mr. Leung said he enjoyed with the Company would indicate that he was not the kind of man to do that. The judge concluded that there was an overwhelming probability that he did not; what in fact he was doing was moving the vehicle to the new site.

11. Once that is accepted, it is almost inevitable that the judge would next conclude, as he did, that Mr. Yip was doing it with either the express or the tacit agreement of Mr. Leung. That follows because discovery in those circumstances was absolutely certain, and it is difficult to think of a satisfactory explanation for doing it off his own bat. The best that can be suggested is that he wanted to get off early in order to go and work other overtime at some other site.

12. Mr. Wong, who appears for the Defendant Company, has said everything possible that could be said in its favour. He has taken us in detail through the relevant portions of the evidence below. He has suggested particular approaches that we should make and inferences draw. I have no doubt that similar comments were made by counsel who appeared for the Defendant Company below. But for my part I am not persuaded that the judge was wrong in the conclusions to which he came. Our attention has been drawn to the well known comments of Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd.⁽¹⁾ and to other authorities where similar comments appear. However I do not take the view that the judge in the present instance has wandered off into the realms of speculation or conjecture. The findings were open to him on the evidence that was before him. I would not interfere.

13. The next question is more one of law. Was there a breach of duty of care on the part of the Defendant Company? Evidence was given by Mr. Paterson, a vehicle expert, and accepted by the judge, that the brakes of Mr. Yip's crane were defective and had been defective for sometime. It may be that their condition was sufficient for working about the site, but, as the judge observed, that was irrelevant to a situation where the vehicle was to be used upon a road. The brakes were certainly not sufficient for that, in particular where the road went up and down hill. It was the Defendant Company's duty to provide a satisfactory vehicle. Clearly they were in breach.

14. Even so, it is suggested that there was no casual connection between the Defendant's negligence and the accident. With respect, it is not an argument that is easy to follow. If the vehicle had been found as it was, but with perfectly adequate brakes, then of course no liability could have been laid on the Defendant Company. The doctrine of res ipsa loquitur would indicate that there was negligence somewhere, but the negligence then would not appear to have been in the vehicle. But once it is established that the brakes were quite inadequate, then, in the circumstances, it seems to me there is no room for any other explanation. The connection with the Defendant's negligence is obvious.

15. The final question is whether there was any contributory negligence on the part of Mr. Yip. Mr. Wong has stressed at great length the fact that Mr. Yip had no driving licence. He does not suggest that  this in itself amounts to contributory negligence, but urges, with a logic that I confess myself unable to comprehend, that it goes some way towards it. For myself I do not see that. At best I can appreciate, without accepting, his argument that the ability of Mr. Yip to control the vehicle within the site did not illustrate an ability to control the vehicle on the open road, where conditions would be quite different. For my port I am not persuaded that conditions would be significantly different or that a driver who could skilfully negotiate his vehicle through the narrow channels of a crowded container site could not do the same equally well upon a wide open road. I do not see that the factor of a down hill incline makes any significant difference, provided of course that the brakes were in working order, and it is conceded that Mr. Yip had no knowledge that they were not.

16. For these reasons I find no merit in this appeal and I would dismiss it.

Kempster, J .A.:

17. I agree that this appeal must be dismissed for the reasons given by my Lord.

Clough, J A.:

18. I also agree.

(1)    (1940) A. C. 152