TANG HUNG ON v. CROWN RICH TRANSPORTATION LTD AND OTHERS

HCPI 304/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 304 OF 2006

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J U D G M E N T

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Introduction

1.  Mr Tang was employed by Crown Rich as an articulated cement tanker truck driver.  He suffered an industrial accident on 18 April 2003, when his right leg was struck by a pressurised rubber hose which had become detached from his cement tanker in the course of discharging a load of dry cement from the tanker into a silo at a concrete batching plant in Tuen Mun.

2.  The proceedings against Kin Hing Concrete Company Ltd, (D3), have been discontinued.  Mr Tang has compromised his claim against Yue Chi, Kin Hing Concrete (H.K.) Company Ltd, (Kin Hing), and Multi-way Industries Ltd.  At trial, Mr Tang’s action was directed only at his employer, Crown Rich.

3.  There is a contribution issue between Crown Rich, on the one hand, and Multi-way on the other, arising from cross contribution notices that have been issued between those defendants.  I shall deal with the issue of contribution the conclusion of this judgment.

4.  Crown Rich was both the employer of Mr Tang, and the registered owner of the tractor of the articulated unit driven by Mr Tang.  Yue Chi was the owner of the tanker trailer unit.  Multi-way was the operator of the concrete batching plant at which the silo was located.  D3 held the licence in respect of the concrete batching plant.  Kin Hing is a BVI company, plainly closely related to D3, the nature of that relationship not having been revealed to Mr Tang’s advisers.  The company apparently operated some form of business from the premises at which the silo was located.  All parties accepted at trial that Kin Hing had no involvement in the circumstances of the action.  I will deal with the consequences of this, when dealing with contribution.

Background

5.  Mr Tang was an experienced cement truck driver.  He had worked in that capacity since about July 1991, and prior to his employment with Crown Rich had been employed as a cement truck driver by Green Island Cement.  He began work with Crown Rich on 20 December 2002.  His wage was calculated by the tonnage of cement transported and the mileage driven.  Normally he would complete 4 to 6 deliveries in a day, and had an average income of $13,268 per month at the time of the accident.

6.  The transfer of cement from the articulated tanker into the silo at a concrete batching plant is undertaken by way of a high-pressure air pump, with the tanker connected to the silo by way of a hose.  The pressure required to discharge the cement from the tanker into the silo is approximately 2 Bar, or 29 in².  That is equivalent to about the usual pressure in a motor vehicle tyre.  It was not in dispute that any operation undertaken under such pressure is an inherently dangerous operation.

7.  From time to time the hose attached to the tanker requires replacement.  The system of work adopted by Crown Rich to replace the hose was to delegate the task to a nearby garage known as Chi Chung, operated at the relevant time by Mr Mak Hing Chung.

8.  The evidence was that the replacement of the hose is not a simple task.  First, the old hose must be removed.  This is effected by using a pneumatic wrench to release two hose clamps, and then a cutter to cut the old hose enabling its removal.  Cleaning liquid is then applied to the metal hose tube of the tanker to lubricate that tube and facilitate putting on the new hose.  The evidence was that sliding the new hose onto the metal hose to the tanker is sufficiently difficult that it is necessary to use a manual chain block to gain sufficient purchase on a rubber belt attached to the new hose, in order to slide the new hose onto the metal hose.  It was said that it was necessary that there should be at least 7 inches of new hose on the metal hose to ensure an appropriate grip.  The pneumatic wrench is then used to refix the hose clamps in the appropriate position to hold the new hose onto the metal hose.  If the old clamps have become deformed through use they must be replaced.

9.  Mr Leung, for Mr Tang did not dispute Mr Cheung’s position that the job was a job for an expert.

10.  In early April 2003, Mr Tang informed Mr Lee, the manager of Crown Rich, that the hose on the tanker unit required replacement.  Mr Lee contacted Mr Mak and ordered a new hose.  On about 12 April 2003, Mr Tang was informed by Mr Mak that the new hose was available to be installed.  There was a dispute as to whether or not Mr Mak told Mr Tang, at the time he informed Mr Tang that the hose was available, that Mr Mak was not then able to do the job as he was too busy, or whether when Mr Tang took the vehicle to Chi Chung, Mr Mak then told him that he would not be able to do the work for some 30 minutes.  For whatever reason, the work could not be done immediately.

11.  Mr Tang elected to collect the hose himself and to carry out the work himself, without the assistance of either the usual tools, or any other assistance.  Mr Mak allowed him to take the hose away without knowing what arrangements were to be made for the installation of the new hose.

12.  Mr Tang did not have the necessary tools to do the work, but succeeded in installing the new hose.  In order to make it easier to insert the new hose onto the metal tanker hose he used a file to remove the debris of the old hose from the metal tanker hose.  As he had neither the manual chain block, nor a rubber strap to assist in pulling the new hose onto the metal tanker hose, he did it by hand.  He asserted that he managed to get the hose on, covering approximately 5 inches of the metal hose.  One of the clamps was reusable, and Mr Tang also used a new clamp that was in his truck.  Having installed a new hose himself, he set about his delivery work.

13.  Between Monday, 14 April 2003, and Friday, 18 April 2003, (Good Friday), Mr Tang successfully completed 11 deliveries to various places without difficulty.

14.  Mr Tang said, and it was not disputed, that from time to time there are minor blockages of the cement which result in a vibration of the delivery hose.  The usual practice to overcome this vibration and clear the blockage is to slightly increase the air pressure.  This usually works satisfactorily.

15.  In the course of making the delivery on Friday, 18 April 2003, the delivery hose began to vibrate, indicating that the cement was not flowing smoothly.  The particular silo in question is larger than others and Mr Tang said greater pressure than usual was required to pump the cement.

16.  With the cement not flowing smoothly Mr Tang increased the pressure to twice the usual pressure in order to achieve a clean steady flow.  After some 10 minutes the delivery hose became detached from the tanker metal hose, (the point where Mr Tang had effected the new joinder of delivery hose and tanker metal hose).  The delivery hose struck Mr Tang’s right leg causing him the injury, the subject of these proceedings.

Evidence as to causation

17.  I am bound to say that this is a case in which I expected there to be expert evidence from an engineer as to the cause of the accident.  I was informed by counsel that the solicitors for the plaintiff had sought leave to call expert evidence, but that, even in the absence of objection from the solicitors for the defendants, the Master had refused leave to call an expert.

18.  It is right that the Practice Direction discourages the calling of experts in circumstances where they are not required and the court itself is well capable of determining the cause of an accident.  Traffic accidents are a prime example.  It is rare that it would be necessary to call a traffic engineer in a personal injury traffic accident case.  But the present case was one which cried out for an expert, and it was unfortunate that those advising the plaintiff did not press the matter.

19.  The evidence of an expert as to the precise cause of the accident would have been of great assistance to the court, but that said the absence of such evidence does not prevent appropriate findings being made.  Causation is a question to be decided by the court, applying judicial common sense.  In this respect I have regard to and apply the principles set out by Hunter JA in Lee Kin Kai v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232 at 236, as cited by Mr Leung for Mr Tang.  I am satisfied that notwithstanding the absence of expert evidence the matter may be appropriately determined on the balance of probabilities.

The liability of Crown Rich

20.  Mr Cheung for Crown Rich relied upon the decision of the High Court of Australia in Schellenberg v Tunnel Holdings Pty Ltd [1999] 200 CLR 121, a decision which he argued was strikingly similar to the present case.  In that case, a workman was using a hand-held grinder when the hose delivering high-pressure air to the grinder became loose and swung upwards, striking him in the face and causing him injury.  There was no evidence as to why the hose became detached.  At first instance liability was found for the workman but reversed on appeal, and the reversal was confirmed in the High Court.

21.  The case for Mr Tang was that the immediate cause of the vibration, indicating an improper flow of cement, requiring the increase in the air pressure, that subsequently resulting in the detachment of the hose, was a blockage in the passage of the cement, either in the hose itself, or in the cement delivery system within the silo.

22.  The precise negligence pleaded included a plea that Crown Rich owed duty to Mr Tang to have in place a system of work that ensured that the hose was replaced by a competent contractor, which included a requirement that it was inspected by a competent person to confirm that it was properly installed and safe to be used.  There can be no doubt about that duty.  The duty is a significant one, when regard is had to the fact that the system of work involved the inherently dangerous procedure of the use of high-pressure air to shift the cement from the tanker to the silo.

23.  I am satisfied that the decision in Schellenberg may be distinguished upon the basis that in the present case there was an intervening act on the part of Mr Tang which he personally replaced the hose.  It is from that intervening act that, on the balance of probabilities, I am satisfied that the system of work was inadequate.

24.  It is plain that the replacement of the hose was an important task, required to be undertaken by an expert, to ensure that the hose, to be operated under high air pressure, was safely and properly attached to the tanker metal hose.  I accept Mr Leung’s submission that the acts of Mr Mak, as the agent of Crown Rich, were consequently the acts of Crown Rich.  The duty upon Crown Rich is a non-delegable duty. 

25.  When Mr Mak allowed Mr Tang to take the hose away he had no means of ensuring either that the work was undertaken by an competent person, or that it was properly inspected to ensure that had been properly undertaken.  In establishing a system of work which, albeit without the consent of Crown Rich, permitted an unqualified person such as Mr Tang to undertake the work, Crown Rich has failed to establish a satisfactorily safe system of work.

26.  Mr Tang suggested a number of alternative causes of the accident, including that an environment pump had not turned on properly, that there was not enough room in the silo, that the pipe leading to the silo was blocked, or that there was an unclean filter bag.  It was not part of Mr Tang’s case that the accident was due to his failure to replace and install the hose properly.  There was nothing in the evidence other than speculation that might substantiate any of these courses.

27.  Consequently, I am satisfied on the balance of probabilities that whatever the immediate cause of the vibration, be it any of the four matters suggested in the previous paragraph, or some other reason, it is more likely than not that had the hose been properly installed, and that upon the increasing pressure to ensure a steady flow of cement, the hose became detached from the tanker discharge pipe.  Had it been properly fixed it should not have become detached.  The undisputed evidence is that the new hose was attached to the tanker discharge pipe by Mr Tang who was neither an expert on the task nor did he have the appropriate tools.  In those circumstances it is more likely than not that Mr Tang, notwithstanding his own confidence in his ability to do the job, has failed to properly attach the hose to the discharge pipe.

28.  Mr Cheung contended that it was not reasonably foreseeable that Mr Tang would do the work himself.  But irrespective of who undertook the work, the duty upon Crown Rich was to establish a system of work that ensured the proper installation of the hose.  They chose to discharge their duty by delegating the task to Mr Mak.  That delegation must necessarily carry with it all of the risks of giving the task to someone else, and makes the requirement to a system of inspection all the more important.

29.  In any event, in my view it was reasonably foreseeable that a driver under pressure, particularly one who was paid on the piece basis that Mr Tang was paid on, will do everything he can to speed up his task.  That is inevitable when an employer chooses to pay a man based not upon an hourly rate for a certain number of hours per week, but on the amount of work that he actually does.  In no circumstances it is more likely that the workman’s efforts to speed up his work will inevitably include taking shortcuts on maintenance work.  In my view it was reasonably foreseeable that Mr Tang might be involved in the work. 

30.  There was a complete failure to establish any system which resulted in a proper inspection upon the completion of the work, and the system of work established by Crown Rich failed to ensure that the hose was properly attached to the discharge pipe. 

31.  For these reasons I am satisfied that Crown Rich must be liable to Mr Tang in respect of his injuries.

Contributory negligence

32.  Mr Cheung contended that Mr Tang, having undertaken the task himself, and without reporting that he had undertaken it himself, was the author of his own misfortune and contributory negligence should be at least 50%.

33.  The duty to establish a safe system of work is not only a duty under common law but is also a statutory duty.  In those circumstances is necessary to bear in mind the decision in Li Man Yuen v Li Ching I t/a VF Electric Manufacturing Co [1991] 2 HKC 230, where, at 238, Clough JA held that in circumstances of breach of statutory duty on the part of the employer, the assessment of contributory negligence is “less exacting”, otherwise it will defeat the purpose of the legislation for the protection of a worker.

34.  Having regard to the whole of the circumstances, I think there must be some contribution on the part of Mr Tang.  While he was under pressure, there is no evidence that he would not have achieved his deliveries on that day had he waited for Mr Mak to undertake the work. 

35.  In all the circumstances I fix contributory negligence at 15%.

Quantum

36.  There is little dispute on the issue of quantum. 

37.  PSLA is agreed at $400,000.

38.  Mr Tang had worked for only four months before the accident.  That is not sufficient to properly assess average monthly earnings.  I accept the analysis of the income of comparable workers, assessed over a five-year period, that the appropriate average monthly earning should be based on the sum of $13,887.  I fix pre-trial loss of earnings at $752,309.30.  I fix loss of MPF contribution at $37,615.46.

39.  On the same basis, bearing in mind his subsequent earnings, I fix future loss of earnings, using a multiplier of 11, at $430,584, and future loss of MPF contribution of $21,529.20.

40.  There was a dispute as to loss of earning capacity, Mr Leung arguing for 12 months, Mr Cheung arguing for 10 months.  I am satisfied that the consequences of Mr Tang’s injury carry a real risk of osteoarthritis and that consequently loss of earning capacity should be fixed over a 12 month period in the sum of $132,000.  Mr Chan did not argue against the allowance for future medical expenses, for fusion of the ankle joint in the event of osteoarthritis, and I allow the sum of $75,000 for the surgery and $42,000 for the rehabilitation period loss of earnings.

41.  Although they were not all admitted, there was no dispute at trial as to the hospitalisation fee, medical expenses, and travelling expenses totalling $12,840, which are allowed.

42.  The foregoing sums must be subject to a reduction of 15% for contributory negligence, and Mr Tang must give credit for the sum of $436,911.20 received by way of Employers Compensation from Crown Rich, and $297,500 by way of damages received from the remaining defendants as a result of the compromise.

43.  Interest must be paid on the special damages at the rate of 4.5135% being the average of the judgement rate from the date of the accident to the date of judgement.  Interest on PSLA must be paid at 2% from the date of the writ, 7 April 2006, to the date of judgment.

44.  There will be an order nisi that Mr Tang must have his costs in the action.

The cross contribution notices

45.  Yue Chi, Kin Hing and Multi-way filed a notice against Crown Rich, under the provisions of the Civil Liability (Contribution) Ordinance, Cap 377, CL(C)O, seeking to recover a contribution from Crown Rich in respect of any liability they may have in the proceedings.  The service of that notice resulted in a cross notice from Crown Rich to those three defendants.

46.  Mr Cheung sensibly conceded at trial that the issue of the contribution notice by Crown Rich may properly be described as a “knee-jerk reaction”, and there was no proper basis upon which Crown Rich would be entitled to an order.  The contribution notice by Crown Rich must be dismissed with costs to Yue Chi, Kin Hing and Multi-way.

47.  By the time the matter reached trial, the claim by Crown Rich for contribution was limited to a claim against Multi-way.  Mr Cheung argued that Mr Tang’s claim against Multi-way was always bound to fail, and that accordingly, pursuant to the provisions of s 3(4) CL(C)O, the defendants were not entitled to a contribution.  That provision deals specifically with the circumstances where a person has compromised claim made against him.  Multi-way had compromised the claim by Mr Tang with him prior to trial.  The section reads:

“A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been excepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.”

48.  Mr Lim argued that while the improper fitting of the hose was the most probable cause for the hose coming off, it was arguable that, as the operator of the concrete batching plant, Multi-way could have been negligent in failing to properly maintain the cement silo so that a blockage could occur during the delivery of cement from a tanker to the silo.  Indeed, that was one of the intentions of Mr Tang.

49.  All of these matters were matters pleaded against Multi-way by way of negligence or breach of statutory duty.  While they were not established at trial, had appropriate evidence been led those matters could have been established.

50.  The requirement of s 3(4) is that a party who has compromised claim is entitled to contribution if that party would have been liable assuming that the factual basis of the claim against it could be established. 

51.  I accept Mr Lim’s submission that the blockage scenario was pleaded and was arguable, and that had it been established that the silo had been improperly maintained thereby resulting in a blockage, Multi-way would have been liable to Mr Tang for his injuries. 

52.  It is not suggested that the settlement was not bona fide.  In fact the amount which settlement was made, in my view, properly reflects the litigation risk, bearing in mind the logical nature of the suggested basis of liability and at the same time the absence of direct evidence to substantiate the allegation.

53.  In those circumstances Multi-way is entitled to a contribution order pursuant to s 3(4) CL(C)O.

54.  The amount of contribution recoverable by a person is such sum as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.

55.  The total damages payable, after adjustment for contribution approximately $1,600,000.  The amount paid by Multi-way in the compromise was $297,500, approximately 19% of the total award.  Exercising my discretion, I fix the amount of contribution at $200,000.  Multi-way is entitled to costs on the contribution notice.