LILLEY,HEATHER BEATRICE v. HONG KONG AND KOWLOON FERRY LTD AND ANOTHER

HCPI 811/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 811 OF 2005

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BETWEEN

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JUDGMENT

Background

1.  Mr Adams met with an unfortunate accident on 9 September 2002, when he was travelling as a passenger on board the ferry "Sea Star", on its 9:30 pm journey from Central to Lamma Island where Mr Adams had lived. He had boarded the ferry at the Central pier some time before 9:30 pm. When the ferry arrived at the Yung Shue Wan pier in Lamma at around 10 pm, Mr Adams was not amongst the passengers who disembarked. Only his personal belongings were found on the ferry. The next day, on 10 September 2007, the body of Mr Adams was retrieved by the marine police from the sea off Tsing Yi Island.

2.  These proceedings are instituted by Mr Adams’ widow, the administratrix of Mr Adams' estate, against the 1st defendant as the owner and operator of the ferry, and against the 2nd defendant as the captain and master of the ferry, for damages in respect of Mr Adams' death, which is claimed to have been the result of the defendants' negligence.

3.  The ferry "Sea Star" ("Vessel") was not a regular ferry deployed for the route from Central to Lamma. It was designed as a passenger launch and was first licensed in 1982, before ownership of the Vessel passed to the 1st defendant. The 1st defendant used the Vessel as a substitute or reserve ferry when its regular ferries had to be serviced or repaired.

4.  There are 2 decks for passenger seating on the Vessel: the main (lower) deck, and the upper deck with an open area for seating. Passengers can reach the upper deck by a main staircase which leads from within the main passenger compartment on the lower deck. They can also access the upper deck by climbing either one of the 2 stairways which lead from the aft deck of the lower deck ("aft deck"). The design of the Vessel is different to that of the regular ferries deployed by the 1st defendant. The 3 toilets of the Vessel are all situated at the aft deck, which deck is not entirely enclosed, whereas the toilets on the regular ferries are situated inside the enclosed main compartment. Any passenger wishing to access the toilets on the Vessel must proceed to the aft deck.

5.  The aft deck of the Vessel is enclosed by bulwarks which are 1 metre high. 2 steep flights of stairs lead from each of the port and starboard side of the aft deck, with 8 shallow steps each. These stairways are set at an angle of approximately 63° to the horizontal, and are provided with handrails which measure 1 metre high from the base of each step. There is a door on each of the bulwarks on the port and starboard side of the aft deck. These bulwark doors open outwards, ie from the aft deck towards the sea. The doors to the toilets on the Vessel also open outwards, ie from the toilet towards the aft deck.

6.  There is no direct evidence in this case as to when and how Mr Adams had fallen from the Vessel into the waters on the night of the accident. Counsel for the plaintiff has emphasized that it is not necessary for the plaintiff to adduce such direct evidence as to how the accident had occurred. The plaintiff relies on the fact that the defendants' negligence can be established in this case by indirect or circumstantial evidence, and that negligence can be inferred from the facts established in this case. Counsel for the plaintiff relies on the following passage in Charlesworth & Percy on Negligence 12th ed para 6-85 (quoting Jones v GW Railway (1930) 144 LT 194 at 202):

" … It is not necessary for the claimant to give direct evidence of negligence. A case may be proved partly by direct and partly by indirect or circumstantial evidence. In some cases the facts of an accident are unknown and, in order to succeed, the claimant must then prove facts, from which an inference of negligence on the part of the defendant may be reasonably drawn. ‘It is a mistake to think that because an event is unseen its cause cannot be reasonably inferred.’ The facts, however, must he such as to put the matter beyond a mere surmise or conjecture and they must lead to an inference, which is a reasonable deduction from the facts actually observed and proved."

7.  The question in issue in this case is whether there are sufficient facts observed and proved, from which an inference can reasonably and properly be drawn that the defendants, as the owner and occupiers in control of the Vessel and the operators of the ferry service provided, were negligent, and that such negligence had caused the fall and eventual drowning of Mr Adams.

Why did Mr Adams fall?

8.  At approximately 9:20 pm, Mr Adams was seen at the turnstiles at the Central ferry pier, as evidenced by the defendants' CCTV tape recording. He had also been seen by 2 other passengers on the Vessel. Mr Wilson, a resident of Lamma Island who knew Mr Adams, gave evidence that as he boarded the Vessel, he had seen Mr Adams sitting in the main passenger compartment on the lower deck of the Vessel, with a table in front of him. According to Mr Wilson, Mr Adams was engrossed in reading a book "Pax Britannica". Mr Wilson's evidence is that Mr Adams appeared to be perfectly relaxed and normal. Mr Wilson went up to the upper passenger deck, where he remained seated until the Vessel arrived at Yung Shue Wan, but he never saw Mr Adams again.

9.  Mr Adams was also witnessed by police officer Wu Chun Lam who worked on Lamma Island, and had encountered Mr  Adams before.  Mr Wu was on the Vessel on the night of the accident, had in fact sat near Mr Adams, and had recognized him. According to the evidence of Mr Wu, about 10 minutes after the Vessel had set sail from Central, he saw Mr Adams leave his seat, walk down the aisle of the Vessel, and then return to his own seat.

10.  Mr Wilson's evidence is that when he went down to the main passenger compartment to disembark at Lamma, he could not see Mr Adams at his seat. However, the book which Mr Adams had been reading was placed open and face down on the table in front of his seat. Mr Wilson also saw Mr Adams' briefcase on the floor next to where he had been sitting. Mr Wilson waited for about 30 seconds, but could not see Mr Adams on the Vessel or at the pier as he departed.

11.  According to Mrs Adams, she had met with Mr Adams in Central about 5 hours before the accident. She had also received a call from her husband some time around 9:30 pm or 9:40 pm. He was on the Vessel. The call was cut off at the end, but her evidence is that they had spoken for about 10 minutes on the telephone. Mr Adams' mobile telephone was retrieved from his briefcase after the accident. The inevitable inference is that the accident took place after Mr Adams finished his telephone conversation with his wife.

12.  According to the evidence of Mr Shek, one of the sailors on duty on the Vessel on the night in question, he had found Mr Adams' personal belongings at a seat in the main deck after the Vessel had berthed at Yung Shue Wan, and all the passengers had disembarked. Mr Shek thought that some passenger had left these items behind, and brought the items to the pier office.

13.  Mr Adams was last seen on the Vessel after it had sailed from Central, and was not seen again upon disembarkation. Only his belongings were found at the seat on the Vessel. His body was found in the waters the following morning. There is no evidence whatsoever of either suicide or foul play which had led to Mr Adams' death. Suicide is a grave allegation, and should be supported by strong and convincing evidence proportionate to the gravity of the allegation (Forbes J in Marian Davis v Stena Line Ltd (2005) EWHC 420, at para 36 citing Toulson J in The "Delphine" (2001) 2 Lloyds Rep 542). Nothing in the available evidence suggests that Mr Adams was either depressed, agitated or ill. According to Mrs Adams who had met Mr Adams just a few hours before the accident and had talked to him shortly before the accident, he had appeared to be in good spirits.

14.  According to the police officer who had watched the defendants' CCTV tape and who gave evidence at the inquest into Mr Adams’ death, Mr Adams was seen to be walking and behaving normally when captured on the CCTV footage at the turnstiles at Central pier. This is despite the fact that according to the autopsy report, Mr Adams was found to have a significant amount of alcohol in his blood. According to the evidence of Mr Wilson and Mrs Adams, Mr Adams had a high tolerance for alcohol, was not easily affected by it and, being a wine merchant by trade, could drink more than most people. Mr Wu, the police officer who had seen Mr Adams on the Vessel, had not observed any obvious signs of drunkenness in Mr Adams when he walked by about 10 minutes after the Vessel had sailed.

15.  The only reasonable inference which can be drawn, on the evidence available, is that Mr Adams had accidentally fallen from the Vessel into the sea during the course of the Vessel's journey from Central to Yung Shue Wan. He drowned as a direct result of the fall.

When did Mr Adams fall?

16.  This question is considered for the purpose of deciding the likely location of the fall, which in turn has a bearing on how Mr Adams might have fallen from the Vessel.

17.  It is not disputed that Mr Adams spoke to his wife on his mobile telephone on the night of the accident.  In her statement which was given to the police shortly after the accident, Mrs Adams said that she received the call from Mr Adams at about 9:40 pm.  At the inquest which took place in 2003, Mrs Adams was asked about the telephone call which she received from her husband at 9:40 pm, and she did not dispute the time of the call.  In her statement made in these proceedings in July 2006, Mrs Adams said that the telephone call was received at around 9:27 pm.  Her evidence in court is that she was pretty sure that the police had given her the telephone print out from Mr Adams’ telephone to look at before, and that 9:40 pm might have been the time when the telephone call had finished.  She accepts that the time of 9:27 pm was only an estimate, as her impression was that when Mr Adams called her, the Vessel was about to sail.  

18.  According to the evidence of Mr Wu who testified at the inquest, he had seen Mr Adams walk down the aisle from his seat “10 minutes into the journey”. He had seen Mr Adams at his seat when he embarked at 9:20 pm, and the Vessel sailed at 9:30 pm.  Mr Wu made no mention of his having seen Mr Adams talking on the phone.  He only saw Mr Adams walk from his seat with a brown coloured bottle, and then return to his seat without the bottle.

19.  Irrespective of whether Mr Adams’ telephone call was made to his wife at 9:27 pm or 9:40 pm, the only inference that can be made from Mr Wu’s evidence at the inquest, that he had seen Mr Adams 10 minutes into the journey from Central, is that Mr Adams met with the accident after 9:40 pm. Even if the call had been received by Mrs Adams at 9:40 pm, I do not consider it very likely that the telephone conversation could have lasted as long as 10 minutes, as she claims.  On the evidence, I consider it more likely that Mr Adams met with his accident some time after 9:40 pm.  At 9:40 pm, the Vessel would have been in the region of Green Island.  It is more likely than not that Mr Adams fell from the Vessel in the region just past Green Island, in the East Lamma Channel, where the Vessel is subject to the wake of multiple vessels including container ships, bulk carriers and some high speed ferries even at that time of the night.

How did Mr Adams fall?

20.  Expert evidence has been adduced in this case from marine experts called by the parties as to how Mr Adams might have fallen from the Vessel. Various scenarios have been put forward by the experts, and there has been extensive cross-examination and argument as to the likelihood, or probability, of these scenarios as the possible cause of the accident. I agree with Counsel for the plaintiff that it is unnecessary for the court to make findings of fact as to the precise mechanism or the exact manner in which Mr Adams fell from the Vessel, so long as the court is satisfied that it was an accident, as I am.

21.  Anyone who has been on board a vessel travelling within and immediately outside the Victoria Harbour in Hong Kong in recent years cannot seriously dispute that the traffic of vessels in and around the Harbour is such that vessels can be subjected to quite serious pitching and rolling. The severity of the pitching and rolling depends, naturally, on the weather and sea conditions, but to a greater extent, it is affected by the traffic condition of the different vessels plying the Harbour.  Such vessels include large container ships at various locations of and around the Harbour as well as high speed ferries which operate between Macau and Hong Kong, and between Lantau Island and Hong Kong.

22.  The evidence of the witnesses called in these proceedings confirm the sea conditions they experienced in the Harbour. I find the independent evidence of the Lamma residents as credible of their experience as regular passengers, and preferable to the evidence of the crew-members of the Vessel with regard to the conditions encountered by the Vessel on the night of the accident, and to that of Mr Browne, the expert called by the defendant, who had more limited experience of travelling on ferries in, from or to the Harbour.

23.  According to Mr Wilson, ferries on the route between Central and Yung Shue Wan are always affected by the wake of passing vessels, irrespective of the weather. A passenger walking around the ferry while it is travelling would be put off balance as a result of the waves encountered by the vessel, such that the passenger would have to take a step back or to put a hand out for steadying purposes, and to avoid falling over. Often, the passenger has to take a step backwards to counter the motion of the vessel when it is affected by the wake of the other vessels, and it was a "regular occurrence".

24.  Mr Wilson's evidence is that when the sea condition in the Harbour is compared to the condition when the ferry leaves the Harbour, passes Green Island and enters the Lamma Channel, the conditions outside the Harbour tend to be calmer. However, in the Lamma Channel, ferries often encounter the wakes of larger container ships passing to and from the Kwai Chung container terminal, and these wakes cause the ferries to noticeably pitch or roll.

25.  Another resident of Lamma Island who gave evidence as a frequent and regular traveller on the ferries operating between Central and Yung Shue Wan is Mrs Allert. According to her evidence, when the ferry crosses the Lamma Channel which is busy with large container ships and other smaller vessels, the ferry will be affected by the wake of such vessels, particularly those of the large cargo and container ships. According to Mrs Allert, the effect of the wake on the ferry can be quite dramatic. "The ferry will pitch sufficiently to cause a sudden drop that creates a weightless feeling in your stomach; the feeling that you experience on fairground rides. Then the ferry hits the trough of the wave with a bump." The account given by Mrs Allert may not be typical of an everyday experience, but I would not dismiss it as exaggerated, or being applicable only to a rare encounter. It is also Mrs Allert's evidence that the ride on the Vessel was far more "bumpy" than on other ferries, and that the Vessel bounces  noticeably when it hits the wake of other vessels.

26.  In so far as Mrs Allert, Mr Wilson and other witnesses have described the journey of the Vessel on the night of the accident as being "unexceptional", "uneventful" or "typical", I would regard such in the context of the experience commonly encountered by the regular passengers and crewmen of the Vessel and of other ferries on the route between Central and Yung Shue Wan, with the usual rolling and pitching.

27.  The master of a vessel may take various steps to minimize the effects of the wake from other vessels, such as stopping, turning or slowing down the vessel. This depends on the experience, vigilance, care and skill of the master and, in the case of the Vessel and other ferries, the demands of adhering to the timetable by which the ferries run.

28.  I am satisfied beyond doubt that it is reasonably foreseeable to the defendants that a passenger travelling on board the Vessel en route from Central to Yung Shue Wan will experience rolling and pitching of the Vessel, to the extent that they might be unbalanced, or even fall.

29.  The design of the Vessel is said to be unique of the ferries travelling on the route between Central and Yung Shue Wan. The Vessel had not been purpose-built as a ferry, but had been purchased by the 1st defendant "secondhand" and refitted without reconstruction of the aft deck. All the toilets of the Vessel were situated on the aft deck, and when the Vessel was put to use as a substitute or reserve ferry when the regular ferries of the 1st defendant were not available, a passenger would have to leave the enclosed main passenger compartment and go out to the aft deck in order to have use of the toilet facilities.

30.  The defendants rely on the fact that the Vessel had been inspected by the Marine Department just 4 months before the accident, and had been found to be "in good condition and fit for the service intended", before it was put to use as a reserve ferry and for special cruises. The aft deck was surrounded by a 1 meter high bulwark which was of an internationally accepted standard. The design satisfies local and international shipping regulations. Shortly after the accident, the Marine Department certified that the fence and handrails of the Vessel had been inspected and found to be in good condition.

31.  The doors to the toilets on the aft open towards the aft deck. According to Mrs Allert, when a passenger uses the toilet, he or she has to step back from the doors towards the stern of the Vessel in order to open the door, and the stern is open to the sea although protected by the 1 metre high bulwark.

32.  Mr Wilson's evidence of his experience of using the toilets on the Vessel is that the artificial lighting on the open aft deck is dim. As an architect by profession, he had felt very uneasy by the fact that he had to turn his back to the bulwark and the sea, when opening the door to the toilet.

33.  It is also Mr Wilson's evidence that when he was on the aft deck of the Vessel, the mooring rope was lying on the deck, coiled. It was 1 metre in diameter, and placed near to the toilet doors, taking up a significant portion of the deck area. According to Mr Wilson, he felt very uneasy and that it was dangerous on the aft deck.

34.  Mr Shek, a member of the Vessel's crew on the night of the accident, agreed in his evidence that prior to the time of the accident, passengers going to the aft deck of the Vessel would be able to see mooring ropes coiled on the aft deck. It was also his evidence that there was insufficient space for the entire length of the mooring rope to be arranged neatly under the life buoys at the transom bulwark of the aft deck.

35.  According to Mr Boffey, the expert called by the plaintiff, coiled down ropes on the deck are a hazard not only because they could move during the voyage but if a person accessing the open area of the deck should step on a coiled rope, it would probably cause the person to fall, especially given the motion of the vessel.

36.  Mooring rope left on the aft deck of the Vessel can easily cause a passenger on the aft deck to trip, stagger, or fall, particularly at night when the aft deck is dimly lit.

37.  A passenger on the aft deck who is tripped, or who becomes unbalanced as a result of the rolling, pitching, and other movements of the Vessel will have to hold on to objects or available handholds in order to avoid falling or stumbling. There are no custom-made handholds put in place at the aft deck of the Vessel. The passenger will have no alternative but to hold on to the structure of the Vessel itself, in the form of either the bulwarks surrounding the aft deck, the roof of the deck, the side of the doors leading out from the main passenger compartment, or the side of the doors of the toilets. The handle to the door to the toilets is hardly a safe or steady handhold, as the handle itself moves, and the door may also open.

38.  The bulwark doors on the port and starboard side of the aft deck are each secured by a hook and eye arrangement at the top, and a sliding bolt at approximately two-thirds of its height. Mr Boffey's expert opinion is that the means of securing these bulwark doors are flimsy, particularly since the doors open outward. Even the defendants' expert considers the methods of securing the bulwark doors to be "rudimentary".

39.  Mr Shek's evidence suggests that the starboard bulwark door was routinely used for mooring purposes as the Vessel berthed, and as the photographs of the locking mechanism show that the locking devices had been changed at different times, Counsel for the plaintiff submits that the bulwark doors and their locking mechanisms were subject to constant wear and tear. I accept Mr Boffey's evidence that at the time of his joint inspection of the Vessel with Mr Browne, the bolt of the starboard bulwark door was not properly closed when the Vessel was underway. Counsel for the plaintiff emphasized that on the evidence, the defendants' system of maintenance of the bulwark doors was poor and their practice or culture of securing the bulwark doors was sub-standard.

40.  I do not consider that I have to make an express finding as to precisely how Mr Adams had fallen off the Vessel on the night in question. According to Mr Boffey, it is likely that as a result of Mr Adams having lost his balance due to a sudden pitch or roll of the Vessel, or tripping on the aft deck, he fell over either the port or starboard bulwark, or through one of the port or starboard bulwark doors.

41.  According to the expert pathologist report of Dr Beh, the large band of bruising found over the back of Mr Adams' upper thigh, linear in shape, was an ante-mortem wound, and could have been caused by an impact with a hard object or surface that has a longitudinal shape or a linear broad edge. Mr Boffey’s evidence is that the bruising referred to by Dr Beh is consistent with Mr Adams falling over the bulwark, or through the bulwark door, and the back of his thigh hitting the side of the bulwark, or the lip at the base of the bulwark door, in the process.

42.  According to Mr Browne, it is more likely that Mr Adams had leaned over the transom bulwark, lost his balance and fell over the transom bulwark as a result.

43.  Counsel for the defendants stressed that there is no evidence to show that the bulwark doors had been found open or damaged on the night of the accident, and that there is no basis to suggest that Mr Adams had slipped, or in any way been thrown across the aft deck, with sufficient force to push open the bulwark doors, or had otherwise fallen through the bulwark doors or been propelled over the bulwarks. It was argued that the scenarios put forward by Mr Boffey were built upon numerous assumptions and carried many permutations.

44.  On the question of whether and what inferences can properly be drawn by the court, Mr Sakhrani for the defendants has cited the following passages of the judgments in Halloway v McFeeters (1956) 94 CLR, which I have found helpful:

“ It is clear that it is a mistake to think that because an event is unseen its cause cannot be reasonably inferred: Jones v Great Western Railway Co (1930) 144 LT 194 at 197. Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil case ‘you need only circumstances raising a more probable inference in favour of what is alleged… where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; …. All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission left unexplained should be that the injury arose from the defendant’s negligence.” (emphasis added)

45.  At p 476 of Dixon CJ’s judgment in the above case, he explained the principles regarding the inferences that can properly be drawn on the facts of the case:

“Before the plaintiff can succeed in such a case as this the circumstances must lead to a satisfactory inference, even though resting on a balance of probabilities, that the accident was caused by the negligence on the part of the driver. In the present case the true cause of the accident is in truth unknown. The state of the facts reached by inferences is itself compatible with a number of hypothesis, some of them implying fault on one side, some on the other, some on both sides. Hypothesis of this kind are not inferences. What is required is a basis for some positive inference involving negligence on the part of the driver as a cause of the deceased’s death. The inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them. It need not be an inference as to how precisely the accident occurred, but it must be a reasonable conclusion that the accident in one way or another occurred through the lack of due care on the part of the driver and not otherwise.” (emphasis added)

46.  From the evidence of Mr Wilson and Mrs Allert as to what they had observed during their voyages on the Vessel, and the evidence of Mr Boffey as to his inspection of the Vessel, I can reasonably infer that Mr Adams lost his balance and fell from the aft deck of the Vessel on the night in question, as a result of a combination of various factors.  The more probable inference from all the circumstances that appear from the evidence is that Mr Adams fell from the Vessel due to losing his balance when he was on the aft deck, either to use the toilet or to take some fresh air. He may have lost his balance when the Vessel pitched or rolled as it entered the East Lamma Channel, or was near Green Island, or as a result of his tripping over a part of the mooring rope on the deck. It may have been a combination of these factors which caused him to lose his balance, and to fall over one of the bulwarks. Which bulwark he fell over is immaterial. He may even have been attempting to make his way up the stairway from the aft deck to the upper deck to take some fresh air, when the Vessel pitched or rolled and he lost his balance. None of these factors are inherently improbable in themselves. 

47.  I do not consider it improbable that Mr Adams fell through one of the bulwark doors. I agree that the securing mechanism is flimsy, and it is possible that Mr Shek might have simply and automatically closed the bulwark door when he found it open at berthing, when the Vessel arrived at the Yung Shue Wan pier, without giving it a thought. However, on a balance of probabilities, I am satisfied that the more probable inference is that Mr Adams lost his balance as a result of the pitching and rolling of the Vessel whilst he was near to the bulwark of the aft deck, and then fell over the bulwark.

Did the Defendants owe a duty of care to Mr Adams?

48.  The combination of factors and conditions to which passengers of the Vessel travelling from Central to Yung Shue Wan at night are exposed are all reasonably foreseeable by the defendants. These include the pitching and rolling of the Vessel caused by the sea and traffic conditions in the Harbour and along the East Lamma Channel, the fact that the effect of wakes produced by container ships and high-speed ferries approaching the Vessel cannot always and effectively be countered by any evasive action that may be taken by the master of the Vessel, and the fact that passengers may not be able to observe the condition of the sea or any approaching vessel and hence anticipate the consequent rolling and pitching of the Vessel when they are on the dimly lit aft deck at night.  It is also reasonably foreseeable by the defendants that passengers may be accessing the aft deck in the aforesaid conditions in order to use the toilets, that the aft deck of the Vessel is dimly lit and there may be rope on the deck which may cause a passenger to trip, and that there is no or inadequate handhold on the aft deck for a passenger to hold on to if the Vessel should pitch or roll, or should a passenger lose balance.

49.  It is hence reasonably foreseeable by the defendants that by virtue of the conditions to which passengers of the Vessel are exposed during the voyage from Central to Yung Shue Wan, there is a risk of such passengers falling overboard if the aft deck is not adequately supervised, protected, or made safe. If an accident or the risk of an accident is foreseeable, the precise way in which the accident occurred need not be foreseen. As Mr Recorder B Yu SC put it at para 43 of his judgment in Fong Yau Hei v Gammon Construction Ltd and ors [2006] 2 HKLRD 377:

"It may be true that in the present case, the accident happened as a consequence of a combination of factors. But many accidents do. The fact that it was the Master's negligent navigation which led to a situation where the tow rope could not be released in time was no doubt a contributing cause of the accident. But this does not mean that it is not foreseeable that the tank could not have fouled the tow rope and caused its breakage. If an accident is foreseeable, it matters not that the precise way in which the accident occurred was not foreseen."

50.  It is fair, just and reasonable that the 1st defendant, as the operator of a ferry service providing public transport for passengers, and the 2nd defendant as the master of the Vessel deployed to carry passengers, should owe a duty to take reasonable care to ensure the personal safety of its passengers.  The fact that Mr Adams may have consumed alcohol before, or after, he boarded the Vessel does not relieve the defendants from their duty of care (Charlesworth and Percy on Negligence 12^th ed p 2455, paras 4-48 to 4-50), and I do not understand Mr Sakhrani’s submission to be thus. 

Was Mr Adams’ fall caused by the defendants’ breach of duty?

51.  Notwithstanding the fact that it was reasonably foreseeable that passengers of the Vessel such as Mr Adams would go to the aft deck during the course of the Vessel's journey, whether to use the toilets or to take fresh air or to gain access to the upper deck, and that there was a risk of passengers losing their balance and falling on the aft deck, the defendants did not prevent passengers from gaining access to the aft deck during the voyage of the Vessel, or otherwise warn passengers of the dangers and risks of gaining access to or remaining on the aft deck during the voyage when the Vessel is subject to rolling and pitching, or at night when it is dark on the aft deck. Passengers such as Mr Adams were allowed freely to go on to the aft deck, unsupervised and without any system whereby the Vessel's crew members would be alerted should a passenger assess the aft deck and not return.

52.  It is not disputed that the CCTV system then in place on the Vessel was not adequate to monitor the presence and movements of passengers on the aft deck.

53.  I reject the evidence of Mr Shek and Mr Leung Kam Muk (the engineer on the Vessel), to the extent that there was in fact any effective system in place for the crew to "patrol" the Vessel and the aft deck during its journey to ensure the safety of the passengers, apart from their visits to the aft deck immediately before the Vessel set sail from the pier, and very shortly before the Vessel arrived at its destination, in preparation for berthing.  The suggestion that the engineer would visit the toilets during the journey to check the electrical fittings is not believable. Mr Shek himself admits that he had not noticed Mr Adams leave the main passenger compartment to go out to the aft deck on the night in question.

54.  The defendants rely on the fact that the height of the bulwarks surrounding the aft deck and the height of the railings on the stairways leading from the aft deck to the upper deck comply with local and international safety regulations. They also rely on the fact that the locking devices on the bulwark doors do not fall foul of any safety regulations. They maintain that the design of the aft deck is safe in all respects. They also emphasized the fact that there had been no reported instances of passengers falling or injuring themselves on the aft deck of the Vessel, and no prior instances of passengers falling off the Vessel.

55.  It has to be borne in mind that where personal safety is at stake and possible danger to life and limb is involved, the standard of care demanded is naturally high. There are public policy considerations at stake in favour of personal safety (para 42 of the judgment of Mr Justice Bokhary PJ in Luen Hing Fat Coating and Finishing Factory Ltd v Waan Chuen Ming FACV 19 /2009, 21 January 2011).

56.  The fact that an accident had not happened before does not mean that there was no negligence involved. The lack of statistics generally as to passengers falling off vessels, and the lack of reported cases brought to the attention of the defendants in relation to accidents on the Vessel, have little weight in the consideration of whether the Vessel was safe, and whether the defendants had taken reasonable care to ensure the safety of its passengers.

57.  In determining whether or not there was any breach of duty, the court must assess whether the risk of harm arising from the conduct or omission complained of was real or fanciful, and the court does this by assessing the likelihood of the risk materializing on the specific facts and circumstances of the case before it, and by balancing the likelihood of the risk materializing against the severity of the harm were it to materialize, the cost and practicality of precautions, and the utility of the activity in question (see eg Chiang Ki Chun Ian, a minor v Li Yin Sze CACV 26/2011, 21 October 2011).

58.  I have concluded that the risk of a passenger falling or losing his or her balance whilst at the aft deck during the course of the Vessel's journey is reasonably foreseeable to the defendants. I do not consider such risk to be fanciful, and the consequences of a passenger falling on the aft deck are serious, when the Vessel is at sea.

59.  The defendants chose to deploy the Vessel as a passenger carrying ferry, without making alterations to the design and location of the toilets on the aft deck. They chose to have 4 crewmembers to work on the Vessel, although the Vessel was licensed to have 8 crewmembers. With a larger team on board, manpower could have been spared to keep a proper lookout for passengers accessing the aft deck and to ensure their safety. There was no adequate system put in place to ensure that passengers on the aft deck are safe, whether by means of CCTV monitoring or by adequate and effective monitoring by the crew on board. There was no adequate or secure handhold provided to passengers on the aft deck, and no effective system to ensure that the mooring rope would not be left lying on the deck to create a potential hazard for passengers on the aft deck, particularly at night. Mr Shek himself acknowledged that it was unsafe for passengers to stand or to stay at the aft deck whilst the Vessel is moving, as they might fall. The defendants chose not to put netting over either the bulwarks or the railing of the stairways leading from the aft deck to the upper deck, or to use chains or other means or barriers to prevent passengers from using the stairways or from approaching the bulwarks of the aft deck whilst the Vessel is sailing, otherwise than in an emergency. Nor was there any form of warning to passengers of the risks of approaching the aft deck whilst the Vessel is underway, or at night, other than in an emergency. There must be a feasible alternative to preserving an emergency exit and at the same time keeping passengers safe around the bulwarks and the stairways, if access to the aft deck should be permitted.

60.  Having chosen to allow passengers, be they young, old or infirmed, to assess and use the aft deck, the defendants have the duty to take all reasonable steps to ensure that the bulwarks are protected or fenced in a sufficient and safe manner for all passengers, and that the aft deck would be reasonably safe for its passengers. By allowing the state of affairs referred to in the preceding paragraph to exist, I consider that the defendants fell short of their duty to ensure the reasonable safety of their passengers.

61.  On the available evidence, and bearing in mind the passages cited from Halloway, I am satisfied that the reasonable inference to be drawn is that it was the defendants' negligence which had caused or contributed to Mr Adams falling from the aft deck into the sea, and drowning as a result. Whether it was more probable that Mr Adams had fallen over the bulwark as a result of the pitch and roll of the Vessel coupled with his slipping on a part of the rope on the aft deck, or his losing grip of the handle to the toilet door as it opened outwards (or as Mr Boffey suggests, as a result of the bulwark door flying open as it had been insecurely fastened by the crew), they all point to negligence on the part of the defendants in failing to ensure that users of the aft deck would be reasonably safe.

62.  Even if I should accept the scenario offered by the defendants’ expert as to the more likely cause of Mr Adams' fall, ie that he had leaned over the transom bulwark for fresh air, or to vomit, had lost his balance and fallen overboard as a result, then in addition to the matters referred to in paragraph 59 above, there are serious questions as to the design fault of the transom bulwark, and would indicate that the aft deck is an inherently dangerous place, such that the defendants should not have permitted passengers to gain access to the aft deck whilst the Vessel is underway, without an effective system of monitoring by the crew.

63.  It is reasonably foreseeable to the defendants that a passenger falling overboard from the Vessel is at serious risk of drowning as a result. The defendants should be liable for the direct consequences of Mr Adams' falling from the Vessel into the harbour at night, without any alert having been raised by anyone.

Was there any contributory negligence on the part of Mr Adams?

64.  A passenger of the Vessel, like a passenger of any other means of public transportation, has a duty to take reasonable care of his own safety. Mr Adams is a resident of Lamma Island, and a regular user of the ferry service between Hong Kong and Lamma Island. He should have been aware of the rolling and pitching likely to be encountered on the Vessel when it sails. If he had taken adequate care and paid due heed on the aft deck, he should have been able to hold onto the roof of the deck, or to properly hold the side of the bulwark, to avoid falling on the deck, or over the bulwark. The bulwarks are not so low in height as to cause anyone passing by to fall over easily, despite due care and attention. Whether Mr Adams’ fall was the result of his momentary lapse of attention, or ill-judged failure to take corrective action to steady himself, or was due to the effect of the alcohol he had taken on the night in question, there was nevertheless failure on his part to take adequate and reasonable care for his own safety.

65.  I consider that Mr Adams' lack of care had contributed to his unfortunate accident, to the extent of 50%.

The award

66.  The parties agree that should the defendants be held fully liable, the damages payable to Mrs Adams would be $3.2 million, inclusive of interest. Having found Mr Adams to be 50% to be blamed for the accident, the damages payable to the plaintiff are $1.6 million.

67.  I accordingly allow judgment to be entered against the defendants for the sum of $1.6 million, with interest at judgment rate from the date of judgment. I will make an order nisi that the costs of the action are to be paid by the defendants to the plaintiff, to be taxed if not agreed, with certificate for 2 counsel. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations. 

68.  Finally, I am grateful to Counsel for their detailed and helpful submissions.