TING SIU YAN v. MENZIES AVIATION (HONG KONG) LTD

HCPI 861/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 861 OF 2005

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JUDGMENT

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1. In this matter I am to determine whether or not Menzies Aviation (Hong Kong) Limited (“the defendant”) is liable for injuries sustained by Ting Siu Yan (“the plaintiff”) arising out of an accident which occurred on 12 October 2002 whilst the plaintiff was in the employment of the defendant (“the accident”).  If the defendant is liable then I must consider whether or not there has been contributory negligence by the plaintiff and if so what is the extent of same.

Preliminary

2. An order was made at a Pre-trial Check List Review hearing on 8 May 2006 that a joint medical report dated 24 April 2006 prepared by Dr Wong See Hoi on behalf of the plaintiff and Dr David Cheng Hung Fai on behalf of the defendant (“the experts”) be adduced in the trial of the plaintiff’s claim without oral evidence, I am now asked by counsel for the plaintiff and the defendant to deal firstly with the issue of liability pursuant to Order 33/4(2A)(a) of the Rules of the High Court.  At the Pre-trial Check List Review hearing, solicitors for both the plaintiff and the defendant agreed and advised the Master that it was unnecessary to call the experts on the issues of liability or quantum.  It is to me apparent from reading that report that the experts had reached conclusions which were at the date of the report diametrically opposed.  Subsequent to the preparation of the joint report, further material was provided to each of the experts in the form of surveillance reports and tapes.  Each of the experts in turn commented upon that material and in so doing purported to supplement their original opinion.  Their differences were, as a consequence, if anything, more pronounced.  The matter is further compounded by reason of the fact that as late as 2 August 2007 the expert engaged on behalf of the respondent has filed a further medical report (notwithstanding the fact that he had been requested to do so on 17 May 2007) which makes it apparent to me that both experts, and possibly other medical witnesses, will be required to be heard in the fullness of time.

3. Both parties agree that were I to determine the issue of liability at this stage in favour of the plaintiff then it is appropriate, pursuant to Order 37/1 of the Rules of the High Court, to refer the issue of the assessment of damages to the Master.  In these circumstances, and not without some reluctance, I have proceeded to hear the matter on the issue of liability only.

Background

4. The plaintiff was born on 3 September 1953.  He started work for the defendant’s predecessor in late 1988 at the then Hong Kong International Airport at Kai Tak and thereafter at Chap Lap Kok.  He is described as a “Ramp Service Agent” (“RSA”). 

5. The duties of an RSA can be stated briefly.  They are the persons responsible for the loading and unloading of cargo or baggage from aircraft which arrive at the Hong Kong International Airport.  When an aircraft is required to be unloaded and loaded a team would be assigned by a Senior Supervisor and the number of persons in the team would vary depending on the size of the aircraft and the amount of time available to complete the operation.  The loading and unloading is done using mechanical elevators which are placed at the side of the aircraft.  The cargo or luggage to be unloaded is removed from the aircraft by team members inside the aircraft and then transported down to ground level using the elevator.  Once at ground level that cargo or luggage is pushed by other team members onto small four-wheel carts or “dolly’s” which are positioned at the bottom of the elevator.  For the loading of cargo the reverse applies.  When the loading or unloading is complete the dolly’s are joined together and in turn connected to a tractor which is used to tow them away.  RSA’s have differing degrees of seniority depending upon what equipment they are licensed to operate.  For example a separate licence is required to operate the elevator and the tractor.

6. The plaintiff was licensed to operate the tractor and was in addition required to assist with the loading and unloading of the dolly’s.  The plaintiff had been employed in this type of work for many years prior to the accident.

7. If the aircraft was to be leaving for its next destination within a short time there was a need to complete this operation expeditiously and extra team members may be required to ensure that time constraints were complied with.  The consequences of a failure to adhere to these time constraint could be significant and hence the need to abide by them.

The accident

8. On 12 October 2002, the plaintiff arrived at the Hong Kong International Airport at approximately 4 a.m. and reported for duty.  He was assigned along with others to parking bay C12 on the airport apron to assist with the unloading and loading of a FedEx aircraft that had just arrived.  This he did.  It was his evidence that he drove a tractor together with a number of dolly’s to the location of one of the four exits of the aircraft and waiting for him when he arrived was his co-worker Chan Yu Dai (“Chan”).  Chan was responsible for the operation of the elevator and the plaintiff for the handling of the cargo.  They then proceeded to unload and load the aircraft.

9. His evidence was that, having worked for in excess of two hours he and Chan completed the unloading and loading of their part of the aircraft.  He then connected the dolly’s and walked towards the tractor to tow them away.  Shortly before he reached the tractor he tripped and fell heavily striking his knees against the rear wheel axle of the tractor.  He said that what had caused him to trip and fall was the uneven surface of the parking bay at C12 and specifically damaged expansion joints in that area.  He said : “all of a sudden I was tripped over by something” and when asked what it was that caused him to fall he replied : “when I was tripped over I saw there was a gap, a crack in a joint seam which was on the ground of the area.”  It was his evidence that after he had tripped and fell he was in great pain.  He climbed into the driver’s seat of the tractor where he lost consciousness.  He said (and there were photographs to this effect) that there were a number of joint seams on the surface of the relevant parking area and these were in places damaged and uneven.  It was clear that what the plaintiff called joint seams were in fact expansion joints.

10. It was the plaintiff’s case that the uneven surface created by the damaged expansion jointsresulted in a failure on the part of the defendant to provide for him a safe system of work.  In addition to the above it was said that on this occasion he had been required, together with Chan, to work without the assistance of other RSA’sand consequently shortly before the accident was exhausted and that this exacerbated the inherent danger resulting from the uneven surface caused by the damaged expansion joints.  It was the plaintiff’s evidence that because of cutbacks at about this time the number of RSA’s assigned to each team was kept to a minimum.  In the past there would normally be at least one or two others assigned to each exit.  This he said meant that his workload had increased.

11. It is the defence case that the plaintiff’s allegation that he tripped over a damaged expansion joint is a fabrication.  Alternatively the defendant says that even if the plaintiff had tripped over a damaged expansion joint, it does not mean that the defendant is liable for the accident.  It is said on behalf of the defendant that an employer’s duty is not absolute and that its duty is to take all reasonable care to avoid risk to its employers.  The defendant says that the existence of the expansion joints, damaged or not, is a minimal risk and one which in all of the circumstances is acceptable.  The defendant points to the fact that a claim arising out of an alleged tripping over an expansion joints has never before been made.

12. It was the defendant’s case that whilst the plaintiff may have fallen, and indeed it was not argued that he had not fallen on 12 October 2002, there was nothing done or omitted to be done by or on behalf of the defendant which caused or contributed to that fall.

13. Likewise the defendant took issue with the plaintiff’s assertion that because of staff cutbacks the plaintiff and others were required to do work which previously had been assigned to larger teams.  It was the defendant’s case that the workload on this occasion was no different from any other day.

14. The defendant submits in addition that if there is liability on its part the plaintiff has by his own negligence contributed to his injuries.

15. The above is a summary of the issues before me.

The evidence

16. The plaintiff’s evidence was in line with his witness statement which was adopted as his evidence-in-chief and which is summarised in paragraphs 8-10 above.  He supplemented that orally before me and explained that the expansion joints which has caused him to trip and fall in the area of C12 where he was working, were uneven and damaged.  He was shown several photographs of some expansion joints in the area of C12 and he said that these were similar to those which had caused him to trip but in addition he added that there were others even more badly damaged than those shown in the photographs.

17. Integral to the defendant’s allegation that the plaintiff’s claim that he had tripped was a concoction was the fact that he had omitted to mention this fact until some 2½ years after the accident when his solicitor’s first wrote on his behalf seeking compensation.  In cross-examination he was asked if he had told his colleague Chan who came to his assistance on the morning of the accident that he had tripped on the damaged expansion joint.  He said he had not.  He was asked whether he had told the supervisor who drove him back to the control room that morning after the accident.  He said he had not.  He was referred to a statement prepared by a member of the staff of the defendant who interviewed him some two weeks after the accident.  He agreed that he had not mentioned the fact that he had tripped but said that the document was prepared by that staff member he having asked questions of the plaintiff and the plaintiff having replied to those questions.  As he was not asked about the cause of the accident, he therefore did not volunteer the information.  He was asked why in a letter written by him to the Commissioner of Labour, some 12 months after the accident, he did not say that he had tripped over the uneven surface of the damaged expansion joints whereas instead he had emphasized that he was exhausted because of overwork.  The plaintiff accepted that he had not mentioned this but maintained that the omission was an oversight.

18. In cross-examination the defendant sought to establish that the plaintiff was well versed in the procedures for making an application for compensation by reason of the fact that on three previous occasions when he had been injured claims had been made on his behalf.  It became apparent from examination of the documents that this proposition was not sustainable.  The three particular claims were lodged in fact by the employer as required by law.

19. It was suggested in cross-examination to the plaintiff that there was nothing unusual about the fact that it was only the plaintiff and Chan who had on that day been assigned to work at that position for unloading the FedEx cargo plane and that had there been a need for assistance then the supervisor would have assigned additional staff if he considered it necessary.  The plaintiff accepted that he had not made any complaint to the supervisor but maintained, as he had said in his witness statement, that the defendant had, for a period of time, been reducing the number of staff available for the relevant tasks.

20. Chan was also called as a witness in the plaintiff’s case.  He is still employed by the defendant.  He said that, on 12 October 2002, he was assigned to work together with the plaintiff, amongst others, in the unloading and loading of the FedEx transport aircraft at parking bay C12.  He described himself, as had the plaintiff, as the operator of the elevator.

21. Chan said that at the conclusion of the unloading and loading he closed the door of the aircraft and parked the elevator.  He then went to assist the plaintiff to hook up the dolly’s in readiness for them to be towed away.  He said that he observed the plaintiff standing and pressing his knees together with his hands.  At first he thought the plaintiff was joking and mimicked him but soon realized that all was not well with him.  It was shortly after this that he observed the plaintiff fall to his right having climbed into the driver seat of the tractor.  He then immediately went to his assistance.  He said that he turned off the engine of the tractor and attempted to assist the plaintiff to sit up, but realized that he had lost consciousness.  Some time after this, he said about two to three minutes, the plaintiff regained consciousness, and he then ran to obtain the assistance of a supervisor.

22. He confirmed the plaintiff’s evidence that at the time the plaintiff was injured he did not tell him that he had tripped on the expansion joint.  He said that on the day of the accident he had not paid any specific attention to the expansion joints of the apron in the area of parking bay C12.  However, he agreed that the expansion joints in the vicinity where they had been working were as depicted in the photographs exhibited.  Whilst he accepted that it was not uncommon for the operation that he and the plaintiff conducted on 12 October 2002 to be done by two persons only, he did not retreat from his statement in which he said that the number of RSA’s deployedto each exit of an aircraft had been reduced at about this time which resulted in a greater workload for team members.

23. Those were the only two witnesses called in the plaintiff’s case on liability.

Defence case

24. The only witness called by the defendant was Lui Bing.  He had been employed by the defendant company for many years and he was at the time of the accident the Senior Supervisor of Ramp Services and had for the most of his working life been employed in this field.  On the day the plaintiff was injured, he was on duty from the previous evening and was due to finish his shift at 7.30 a.m.  He described generally the operation of the ramp services section which was in line with the evidence of the plaintiff and Chan save for the fact that he said that there had not been any staff reductions.

25. It was his evidence that each team member including the tractor driver, (in this case the plaintiff), are expected to assist in the loading and unloading and that it was not uncommon for the tractor driver and the elevator operator to work together without the assistance of other RSA’s.  He accepted in cross-examination that the number of persons required to complete the unloading and loading of the aircraft will vary depending on the type and nature of the cargo, the amount of time between the arrival and departure of the aircraft, and any specific request that might be made by the aircraft operator.  He said, there was no shortage of manpower due to any change in company policy or circumstances in the year 2002 when the accident occurred.  He said that if the manpower required to unload and load a specific aircraft was insufficient then the team leader could and should request further assistance and this would be provided if available.  No such request was made by the plaintiff’s team leader on the day of the accident.

26. On 12 October 2002, it was he who drove the plaintiff from the aircraft back to the company control room.  He said that in the course of this journey the plaintiff did not mention to him that he had tripped over an expansion joint.

27. In cross-examination, he accepted that when he first spoke to the plaintiff in the vicinity of where the accident occurred he had had been told by the plaintiff that he simply wanted to rest before talking about the accident.  Given the description of the degree of discomfort of the plaintiff at that time and the fact that he had apparently lost consciousness (which seems not to be a matter in issue), it does not therefore surprise me that he did not then go into the specific details of how it was that he came to be injured.  It would appear that after this witness returned the plaintiff to the control room, there was no further discussion between him and the plaintiff as to the cause of the accident.  He said that after he drove the plaintiff back to the control room he handed him over to the duty manager as he had to ensure that two other flights departed on time prior to him going off duty.

28. As to the expansion joints over which it is said by the plaintiff that he tripped, this witness said that to his recollection there had never been an accident arising out of an employee tripping over the expansion joints.  However, he did say that he as a safety ambassador for the defendant, he would point out to the Hong Kong International Airport staff any damage to expansion joints which he noticed, and that he and representatives of the two other companies providing the same services as did the defendant would meet daily with a representative of the Hong Kong International Airport to assess the safety of the aircraft parking bays.

Assessment of the evidence

29. It is accepted by counsel on behalf of the plaintiff and the defendant that the proper approach to the question of liability in this case is to first determine how it is that the accident occurred.  The plaintiff’s case is that it was a direct consequence of having tripped on the damaged surface of the expansion joints at parking bay C12.  The defendant says that this is not the case and that the plaintiff cannot, on the balance of probabilities, establish this.  They say that whatever it was that caused the accident on this day it was not the defendant tripping on the damaged expansion joint and as this is the only basis upon which it can properly be said that the defendant is negligent then the evidence does not sustain the plaintiff’s claim.  It is submitted on behalf of the defendant that if I cannot be satisfied that the accident occurred in the way that the plaintiff says that it did then his case must fall at this hurdle.  I agree, this must be correct, for there is in reality no other allegation made by the plaintiff alone or cumulatively which would sustain a claim on his behalf.  The issue of fatigue in the circumstances of this case does not begin to become relevant unless the accident occurred in the way that the plaintiff says it did.

The plaintiff’s credibility

30. It has been submitted on behalf of the defendant that the plaintiff is not a witness of truth, and that even on the balance of probabilities I could not and should not accept that the plaintiff had been injured by reason of him having tripped as he said he did.

31. I have considered all of the evidence and I bear in mind that the plaintiff is the only person who has spoken specifically as to what it was that caused him to fall on the day of the accident.  The plaintiff has been cross-examined extensively on behalf of the defendant in an attempt to establish that he was not a witness of truth, I am comfortable in the conclusion that I have no reason to doubt his description of the events that occurred on that morning.  The fact that he did not tell Chan and Lui Bing that he had tripped over the expansion joint, causes me no concern as to his integrity as a witness.  The description of his degree of discomfort at that time readily explains this.

32. I must howeverconsider whether the other omissions to which the defendant refers are of sufficient magnitude to cause me to come to the conclusion that the plaintiff’saccount is improbable.

33. Having had the opportunity to observe the plaintiff in the witness box I am satisfied that his explanations, given without embellishment and presumably in the knowledge that these were significant omissions, are not fabrications, I accept the plaintiff’s explanation that he has omitted to mention this fact on those occasions referred to by the defendant namely when he was interviewed by a staff member some two weeks after the accident and when he described events in a letter to the Commissioner of Labour some 12 months later but do not attribute to those omission any mala fides.  As I have earlier stated the fact that he did not mention this to Chan and Liu on the morning of the accident is entirely understandable in the circumstances.  The plaintiff did not impress me as manipulative or selective in response to questions even when the answers were clearly not in his best interests.  I am comfortable in the conclusion that his description of events is indeed more probable than not.  I am satisfied in the final analysis that he did trip and fall, and that what caused him to trip and fall was the damaged expansion joint.

Is the defendant liable for the accident?

34. Having concluded as I have that the plaintiff was injured as a consequence of a fall which occurred by reason of him having tripped over a damaged expansion joint on the apron of the parking bay at C12 Hong Kong International Airport, the issue then arises as to whether it can properly be said in all of the circumstances that the defendant should be held liable for the injuries sustained as a consequence.

35. It was accepted by all parties that the apron to the parking bay at C12, as with other areas throughout the Hong Kong International Airport, consist of slabs of concrete separated by expansion joints.  It was not developed in evidence why it was that these expansion joints exist but commonsense would dictate that they are in place to ease the pressure on the concrete slab by reason of the weight of the aircraft, the effect of heat and cold, and the like.  What is immediately apparent from the photographs in evidence is that the expansion joints are not insignificant in their dimensions both as to their width and depth.  The photographs of the expansion joints whilst not identified specifically as those over which the plaintiff says he tripped were nevertheless clear in this regard.

36. Then the average width of an undamaged expansion joint was slightly less2 cm, the average depth was of the order of 0.5 cm with an even surface on the edges.  When undamaged they appear to be uniform and regular.  The photographs of the damaged expansion joints, however paints a very different picture.  The nature of the damage I have sighted to the edges of the expansion joints, causes the surface to be irregular and widens the gap.  The damage is usually to the vertical edge on either side of the concrete slabs.  The consequences of this is that the width of the expansion joint where damaged was up to 4 cm and the surface in those areas was clearly irregular and uneven.

37. In my opinion where the expansion joints are damaged there is clearly a risk — and in this case I believe a serious risk — that a moment’s inattention could result in a person tripping and in this case falling, as the plaintiff says he did.  The expansion joints in their undamaged state would appear to pose no significant danger to a person working in that area.  However that is not the case when they are damaged as appears in the photographs.

38. The issue of occupiers’ liability forms part of the plaintiff’s statement of claim and reference is also made to alleged breaches of various provisions of the Occupational Safety and Health Ordinance, Cap. 509, Laws of Hong Kong.  It is emphasised by the defendant that the parking space at C12 is not the exclusive property of the defendant and that the defendant is not an occupier of that part of the airport as would attach to the defendant liability by reason of section 3 of the Occupiers Liability Ordinance, Cap. 314, Laws of Hong Kong.  However in the final analysis it was accepted by both counsel that the determinative factor in the instant proceedings is whether or not, if the accident occurred as the plaintiff said it did (as I have found) did the defendant as the plaintiff’s employer fail to provide and maintain a reasonably safe place of work?

39. The defendant for its part says that : That whilst there may in theory be a risk of someone tripping over the expansion joints that risk was in all of the circumstances an acceptable one such as should not give rise to liability in the event of an accident.  It is said that :

(i)	the defendant is not responsible for nor has control over the parking bay where aircraft are unloaded and loaded that being the responsibility of the Hong Kong International Airport;
(ii)	the plaintiff has not made any practical suggestion as to how such a risk, if there be one, could reasonably be mitigated by the defendant;
(iii)	in the recollection of the defendant’s Senior Supervisor who has had almost 40 years’ experience in the field of loading and unloading of aircraft parked on concrete hardstanding with similar expansion joints, there has never been a report of an accident as a consequence of an employee tripping on an expansion joint damaged or otherwise;
(iv)	the plaintiff is himself a very experienced employee who has been engaged in this type of work for many years and if there was a risk he must of necessity be alert to it and take all necessary precautions.

Conclusion

40. It is not in issue that a defendant’s liability for an accident which occurs to an employer in the course of his employment is not absolute.  Both counsel readily acknowledge the force of the observations of Paull J in Devlin v. Power Steamship Co. Ltd [1963] 1 Lloyd’s Report 474 where he said at 475 :

“

I start by saying that many plaintiffs think that the mere fact that they have met with an accident while in their master’s employment is sufficient for them to make a claim against the master for damages.  Of course, that is not the law at all.  They receive compensation—in the old days it used to be from their employer, and now from the State—in respect of the accident.  Before they can succeed in a claim for damages they must prove either that their employer was guilty of a breach of statutory duty, or that the people whom he employed were negligent. …”

41. Likewise both counsel accept that an employer’s duty is to take all reasonable care to avoid risk to his employees but that does not mean that every risk must be removed.  The obligation upon the employer is mitigated by the use of the expression “reasonable”.  He must take all reasonable care.  Both counsel refer me to the observations of Deputy Judge Muttrie in Ko Siu Yeung v. Kerry Distribution (Hong Kong) Ltd, HCPI 412/2003 (unrep. 30 June 2006) at para. 36 where he said :

“

36.

As Mr Sakhrani points out, it is trite that the employer’s duty is not absolute; it is to take all reasonable care to avoid risk to his servants.  Where there is an inherent risk of injury, as there must necessarily be in a job which involves moving heavy, or fairly heavy objects, the duty is not to remove the risk but to take reasonable care to carry out the risk in a reasonably safe way; see Wong Wai Ming v Hospital Authority [2001] 3 HKLRD 209.  In this case I cannot see that the plaintiff has proved any failure to take such reasonable care.  The claim falls to be dismissed on that ground alone.”

42. Of these observations the plaintiff says that whilst it may be that the risk attendant upon the existence of the expansion joints per se may be acceptable the same is not the case when the expansion joints are damaged as they are in the instant case.

43. On behalf of the defendant it is submitted that to require the defendant to remove all risk attendant upon the presence of the expansion joints damaged or not is an unacceptable burden and in the instant case given that the fact that the plaintiff had worked in this field for many years he must have been aware of such a risk.  In this regard the defendant prays in aid the observations of Scarman J in Mawson v. Unilever Ltd [1963] 2 Lloyd’s Report 198 where he said :

“

I must take into account this : first, that there are certain inherent dangers and risks in the particular work which the plaintiff was doing, and those inherent risks and dangers are well known to the plaintiff; that it was work which of necessity must be done on a sloping surface, and he was working on a cargo, copra, which was known to be greasy; also, that he was working at the bottom of the hold and it almost certainly suffered during the course of the voyage from a condition known as ‘cargo sweat’.

It follows, therefore, in order that this work should be done, that there are certain risks, one of them being slipping, which must be accepted.  The plaintiff was well aware of these risks, which were inherent in the hold or the place where he was working and the materials upon which and in the presence of which he had to work.  That, of course, means that he would have to be very careful when he made his way up this sloping surface and when he was cleaning the copra down from the sides of the ship.”

44. No issue is taken by the plaintiff with the relevance of those observations.  The plaintiff’s case is however that the risk attendant upon the presence of damaged expansion joints is an unacceptable risk which results in the defendant providing an unsafe place of work.

45. The defendant emphasises that given that it is not established that the defendant has any responsibility for the maintenance of the concrete hard standing then hypothetically the only way that it could obviate any risk caused by the existence of the expansion joints would be to post staff at each and every expansion joint to warn of the risks of tripping and in aid of that submission the defendant refers to Cheung Wai Mei v. The Excelsior Hotel, CACV38/2000 (unrep. 22 November 2000).  In my opinion these submissions may be relevant were the issues raised specific to the expansion joints in an undamaged state.  They lose any relevance when one compares the photographs of the expansion joints damaged and undamaged.  As I have stated earlier in this judgment the damaged surface which I have found the plaintiff tripped over on the day of the accident poses a clearly unacceptable risk.

46. The defendant says that I can and should take into account the evidence given on behalf of the defendant by Lui Bing that in all of his 42 years’ experiences working in this field he has never encountered before or since an accident caused by an employee tripping over an expansion joint.  I do take this into account as I do the authority cited in argument by the defendant (Pickford v. Control Data Limited, CA (unrep. 2 May 1984) in which an employee failed in a claim for negligence arising from her tripping over a raised floor tile.  Nevertheless I am satisfied that the plaintiff has established that the defendant was negligent.

47. I am satisfied that it is the defendant’s responsibility to ensure that the plaintiff could not trip and fall as I find he did.  It is in my opinion incumbent upon the defendant to ensure one way or another, and by this I mean proactively, that the damaged expansion joints in the area where its employees were required to work were reported to the body responsible for their repair and pending repair that their employees were alerted to the very real danger of being injured by reason of tripping on one of these.  In my opinion, the fact that the damaged expansion joints were so inherently a risk to the plaintiff is sufficient to justify my conclusion that the defendant must be held responsible for the accident and the injury to the plaintiff.

48. It was incumbent upon the plaintiff to ensure that the risk attendant upon the damaged expansions joints was mitigated.  This has not been done on this occasion, and it is for that reason that I have concluded that on the issue of liability, which is the only issue I am called upon to decide, the plaintiff succeeds.

Fatigue

49. The defendant submits that the plaintiff’s claim that fatigue caused by over work and shortage of manpower contributed to the accident has not been established. It is submitted that the evidence establishes that the number of persons appropriate to be assigned to unload and load an aircraft will vary depending upon the nature and type of the cargo.  If team members, which included the plaintiff on this occasion, required additional assistance they may request same.  On this day both the plaintiff and the witness Chan confirmed that they made no request for assistance completed all tasks other than clearing away by 6.50 a.m.  This given that he started fresh at 4.30 suggests that he was fully capable of completing his duties without assistance.

50. I agree with these submissions.  I am not satisfied that there was any contribution to the plaintiff’s falling because of fatigue.

51. The allegations of fatigue and pressure to complete the operation within strict time constraints do not in this case establish negligence on the part of the defendant.  The cause of the accident was the damaged expansion joint.

52. Given my finding that the plaintiff tripped over the damaged expansion joint as he claims I can see no basis upon which it can properly be said that he has contributed to the accident.

53. There will be judgment for the plaintiff on liability and the assessment of damages is referred to the master for determination pursuant to Order 37 rule 1, Rules of the High Court.

54. I will reserve the question of costs to the master.

55. There will be liberty to apply.