HCA009069/1981
Action No. 9069/81
HEADNOTE
A driver was injured when a derrick boom held on the cab of his lorry as he was waiting at the quayside to be loaded. The derrick boom was rigged to the mast of a lighter which was being off-loaded, and fell as a result of the mast breaking in two. The mast had been constructed from two sections of steel tubing which had not been properly joined. The driver sued the owners of the lighter and its builder.
Held
(1)
The builder was liable in negligence for using a second hand mast without making sure that the two sections were properly joined or advising the owners that no check had been carried out.
(2)
The owners were liable in negligence because the defect in the mast was not latent and they failed over nine years to investigate the joint of the two sections.
(3)
The owners were in breach of statutory duty as:-
(a)
a failure to comply with Regulation 17(a) of the Shipping and Port Control (Cargo Handling) Regulations does give rise to a cause of action,
(b)
the plaintiff was within the purview of the regulation as a person employed in cargo handling,
(c)
the mast was not made of strong or sound materials or free from patent defect as required by the regulation.
No. 9069 of 1981
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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BETWEEN
YEUNG YU
Plaintiff
and
WONG YUNG and NG WAI PING
1st Defendants
NG BILL also known as NG BIU
2nd Defendant
LAW CHI CHOI
3rd Defendant
and
LAW CHI CHOI
Third Party
_______________
Coram: Mantell, J
Date of hearing: 15th, 16th, 19th & 20th November 1984
Date of delivery of Judgment: 5th December 1984
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JUDGMENT
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1. In the afternoon of 12th August 1980 a lighter was off-loading its cargo of rice at the Kennedy Town New Praya onto lorries waiting at the quayside. The sacks of rice were being lifted by a boom derrick rigged to a samson post mounted on the lighter. All at once, belying its name, the samson post broke in two allowing the boom derrick to fall on top of the driver's cabin of one of the waiting lorries. The lorry in question was next in line and about 25 feet behind the one being loaded. The driver was in the cab. He was injured. He was lucky not to be killed.
2. The samson post, or mast as I shall call it, was made from two sections of steel tube of slightly different diameters. They were joined together at a point visible above the deck of the lightersr the base of the mast was, of course, welded to the hull. The two sections had been welded together at the point of abutment which, because of the difference in diameters, was not entirely coincidental. There had been no preparation of the edges of the tubes prior to welding which was circumferential and confined to the small recess formed in the overlap of the smaller by the larger tube. The joint was not supported by any external or internal sleeve. It is unusual to form a mast of this kind from two sections of tube. This one had been retrieved from a scrap yard for ocean going vessels sometime before the lighter was built in 1971. The break occurred at the joint of the two sections.
3. In 1980 the lighter was owned by Ng Chun and Ng Bill. Ng Chun has since died. It was built for the owners in 1971 by Law Chi Choi at his ship-yard at Kwong Cheung Hing. In this action the driver, Yeung Yu, is the Plaintiff and he sues the surviving owner and the personal representatives of othe other as 1st and 2nd Defendants in negligence and for breach of statutory duty, and he sues the shipbuilder as 3rd Defendant in negligence. There is a third party action in which the 1st and 2nd Defendants claim indemnity against the 3rd Defendant. Both actions have been heard at the same time. It was pleaded by all Defendants that by remaining in his cab close to where loading was taking place the Plaintiff had consented to the risk of injury, or, alternatively, that he had been wholly or in part the author of his own misfortune. The allegations were absurd and counsel very sensibly abandoned them soon after the hearing began. Although I take the pleadings for all Defendants to raise the defence of pure accident which, subject to breach of statutory duty, would be a complete answer to the claim, that has not been urged upon me; the Defendants in the event seeking to blame each other. In those circumstances it would seem that the Plaintiff must succeed in establishing liability against either the 1st and 2nd Defendants or the 3rd Defendant or all of them subject to which, in the absence from Hong Kong of one of the doctors, it has been agreed that the assessment of damages should be referred to the Master.
Breach of Statutory Duty
4. Originally the Plaintiff relied upon breaches of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear Regulations and of the Shipping and Port Control (Cargo Handling) Regulations against the 1st and 2nd Defendants. No admission is made as to the application of the first mentioned regulations but it is averred by the 1st and 2nd Defendants that the lifting gear made up of the mast, boom derrick and chain ropes was a lifting appliance within the meaning of the Shipping and Port Control (Cargo Handling) Regulations 1978. At the hearing, the Plaintiff has confined himself to alleging breaches of these last mentioned, and, in particular, to the allegation that the mast was not of good mechanical construction and design, made of strong and sound materials, and free from patent defect as required by Regulation 17(a), and that it was not properly maintained in safe working condition and was not properly installed and rigged for use in a safe and proper manner as required by Regulation 17(b). More particularly still what it has come down to is an allegation that the mast was not made of strong and sound materials. The 1st and 2nd Defendants argued that (1) breach of these regulations does not give rise to a private right of action for damages (2) in any event it could not extend to the Plaintiff who was not engaged in cargo handling and (3) the wording of Regulation 17(a) is to be read as though "free from patent defect" qualifies the other requirements so that a breach only occurs if the defect is patent and in this case, it is said that the defect was a latent one.
5. I hold that the regulations do apply and that the 1st and 2nd Defendants were in broach of them.
6. The first proposition derives from the principle in Phillips v. Britannia Hygenic Laundry Co. Ltd. & others (1) as endorsed by the Privy Council in Tan Chye Choo & others v. Chong Kew Moi (2) that whether or not a person aggrieved by a breach of statutory duty has a remedy in damages depends on the construction to be given to the statute as a whole with regard to which the fact that the instrument itself provides for penalty in the event of breach is a powerful counter indication. But as the cases make clear there are exceptions, one of them being that where it is the intention of the statute or regulation to protect a class of persons. As put by Lord Kinnear in Butler (or Black) & Anor. v. Fife Coal Co. Ltd (3) "when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention."
7. By Regulation 56 an owner who contravenes Regulation 17 commits an offence for which he may be fined up to $5,000 but the regulations are made under Section 80 Sub-section (1)j of the Shipping and Port Control Ordinance which includes among its objects "the safety and protection against accidents of persons employed in cargo handling". On my reading of the regulation, therefore, a cause of action does lie at the suit of anyone injured in the course of cargo handling by reason of some breach of the regulations.
8. Then the next question must be: was the Plaintiff employed in handling cargo? This I have found more difficult. I cannot think that the use of the word "employed" as opposed to "engaged" can have any significance and certainly not such to put the Plaintiff out of court as an independent contractor. Clearly those on deck taking part in the off-loading were "handling" the cargo whether they were required to handle it in a literal sense or not. So I would think would be someone on the quayside guiding it into place even if only by giving instructions. So, too, I am prepared to say, is the driver of the waggon which is actually being loaded at the time. He has brought his vehicle into position to be loaded and may have to move it forwards or backwards from time to time to accommodate the person operating the winch or those who are standing on the waggon flat. But how far back in the chain does this reasoning extend? It must, of course, always depend on the particular facts of the case but where, as here, there is a lorry waiting to be loaded and prepared to move forward at some signal from those in charge of loading and close enough to the actual loading to be affected by breach of the regulations, then I am prepared to hold that the driver of that lorry is a person who for the time being is employed in cargo handling.
9. The last of Mr. Wong's submissions on this turns upon the true construction of Regulation 17(a). He contends, and I agree, that Regulations 17(b), (c) and (d) are not apt. He argues that the juxtaposition of a comma and the words "and free from patent defect"... means that the words free from patent defect qualify each of the foregoing requirements so that, for example, there is no contravention unless the mast was patently not made of strong materials. Authority apart I could not support such a construction. It seems plain to me that the regulations require each condition to be satisfied individually and collectively. But I am content to adopt the approach and reasoning of Lord Wheatley in the Scottish case of McNeil & Anor. v. Dickson and Mann Ltd (4) dealing with the similar wording of Section 24(1) of the Factories Act 1937.
"
Normally if a statute enjoins that a number of conditions must be fulfilled, it is sufficient for a pursuer to establish that one of these conditions has not been fulfilled, provided always that he can associate that non-fulfilment with the cause of the accident. Thus, according to usual standars, it would suffice (subject to the afore-mentioned proviso) if the pursuers in the present case established that the gear was either not of good construction or of sound material or of adequate strength or properly maintained.
Defender's Counsel however submitted that the inclusion of the words "free from patent defect" imposed a further proviso to the effect that any fault in the construction, or in the material, or in the strength must be one in which the defect was patent. If this is in effect a proviso, it is certainly a curious way of expressing it, and yet it must be presumed that the words have been incorporated for a specific purpose. If the statutory injunction is an absolute one to provide wound material of adequate strength, it would not matter whether the unsoundness was the result of a patent or a latent defect. What then is the purpose of including the phrase in the subsection? I do not consider that as enacted it is designed to add an over-riding qualification to the previous factors as defenders' Counsel suggested, but it is, in my view, incorporated to add yet a further safeguard in the interests of safety in the use of the equipment."
Even had I taken a different view of the construction of Regulation 17(a) it would not have affected my view that the lot and 2nd Defendants are in contravention because on the evidence which I have yet to review in connection with the allegations of negligence I find that this samson post was neither made of strong and sould materials nor free from patent defect.
Negligence
(i)
Against the 1st and 2nd Defendants
This lighter was built by the 3rd Defendant in 1971 from second hand materials. The mast was one of two lying at his yard having been recovered from scrap. Ng Chun and Ng Bill were present when it was selected though it is not said by the Plaintiff that they ought to have inspected it at that stage. It was apparent then, however, and more importantly must have been apparent over the next nine years that it had been made from two pieces of tubing. That is not to say that every mast made in sections is unsafe but I have the evidence of Mr. Baillie that in a mast of this kind it is unusual to join sections of tube together. Moreover, it was obvious that the joint however welded was not braced by any external sleeve. Inspection would have revealed that the welding method was inadequate and that there was no internal strengthening. In those circumstances it cannot be said, in my opinion, that the defect was latent since the exercise of reasonable care required the 1st and 2nd Defendants, at the very least, to enquire of the builder whether or not the joint was sound. Without any such assurance it was for them to have some inspection made of the joint. And it was not enough to rely on the investigation carried out in 1979 aimed at testing the weight bearing capacity of the apparatus on a particular day. So I find both the 1st and 2nd Defendants liable to the Plaintiff in negligence.
(ii)
Against the 3rd Defendant
Prima facie a shipbuilder who uses a second hand mast made up of two sections of steel tube which have not been joined together properly is negligent and liable for the consequences. The 3rd Defendant seeks to throw off liability on the basis that by contract he transferred the duty to ensure that the mast was safe to the owners, or, as a branch of the same argument, that believing that there would be a further inspection the consequences which did result were not reasonably foreseeable, or that the intervening negligence of the Plaintiff's was a novus actus.
10. The contract with the owner is based on a quotation dated 20th July 1971. The fifth paragraph is the one relied upon: -
"Owner of vessel should be responsible for the issue of licence, certificate of inspection for cargo derrick, cargo winch and mast. Roller, anchor roller to be supplied by owner of vessel. "
At that date it had not become necessary to have a certificate of inspection for the mast but it did become necessary by 1979 when the mast was satisfactorily tested with a weight substantially greater than that which it was carrying when it broke. The 3rd Defendant attempted to put a gloss on the contract when he gave evidence. Even if I were to accept parol to vary the terms of the written instrument I do not think that what was agreed between the builder and the owner goes any distance towards relieving the builder of his duty towards third persons who might be injured as a result of his negligence. At the very least he would have had to say to the owners; "Look not only is this a second hand mast, as you know, but it is made from two pieces of steel tube which are not strapped together and we have not checked to sec if the weld is good." That the owners were to obtain the certificate of inspection would of course raise the possibility of the particular defect coming to light but not necessarily, as events proved, and there was no understanding that inspection would take place before the vessel was put into commission. I adopt the exposition of principle to be derived from the cases as set out by the learned editor of Charlesworth 7th Edition at 483:-
"the duty of a manufacturer may be said to be to take reasonable care in the manufacture of his product, and failure to take such care will render him liable to any ..... user whose person or property is injured by his product, provided (i) the product causing the injury has the same defect as it had when it left the manufacturer and (ii) the manufacturer should have contemplated that the product would be consumed or used in the same condition as when it left him. "
Insofar as the decision in Dransfield v. British Insulated Cables, Ltd. (5) conflicts with that statement of principle I decline to follow it. In my judgment the builder was negligent in not investigating the soundness of the joint or, if he did, in not discovering its weakness, or, if he did that also, either by not remedying it or by failing to inform the owner. It was within his contemplation or ought to have been that the vessel might be used without its mast having been first inspected or if it was inspected that the inspection would not show up the unsoundness of the joint; that is enough in my judgment to dispose of the first and second of Mr. Chan's submissions. The third was that some intervening act broke the chain of causation. He relies on the 1st and 2nd Defendants' failure to inspect and some suggestion that the proximate cause of the mast breaking was either a loosening of the stays supporting the mast or a failure to keep them tight. This last suggestion comes from the evidence of Mr. Pearce who postulated that theory as an explanation for the mast breaking when it did. I am not prepared to find on the evidence that the condition of the stays had any bearing upon this accident but even if my view had been different it would not have affected the 3rd Defendant's position visa vi the Plaintiff as I am satisfied that the necessary causal connection exists between the negligence of the 3rd Defendant and the damage which ensued even though there was a concurrent cause in the negligence of the 1st and 2nd Defendants.
11. It follows that the Plaintiff succeeds against all the Defendants. There remains the issue between the 1st and 2nd Defendants and the 3rd Defendant arising out of the Third Party Notice. There is no claim for indemnity by the 3rd Defendant against the 1st or 2nd Defendants.
12. I have reviewed the evidence as to negligence and indicated my views as to the extent to which it has been brought home by the Plaintiff against the Defendants. To my mind, the best opportunity for discovering this weakness lay with the 3rd Defendant at the time of installing the mast. At the same time both the 1st and 2nd Defendants had nine years in which to investigate. Each of the 1st and 2nd Defendants was under a statutory duty to make sure the mast was sound.
13. Doing the best I can I find that the 3rd Defendant was 50% to blame. No distinction is made between the 1st and 2nd Defendants who must share the rest of the responsibility between them and any order in the Third Party proceedings should reflect these findings.
14. Order in terms as agreed by Counsel for all parties.
(C.B.K. Mantell)
Judge of the High Court
(1) [ 1923] All E.R. 127
(2) [ 1970] 1 All E.R. 266
(3) [ 1912] AC 149 at 165
(4) 1957 Scots Law Times Reports 364 at 366
(5) [ 1937] 4 All E.R. 382
Representation:
Mrs. Barbara Kaplan assigned by D.L.A. for Plaintiff
Alexander Wong (Lo, Wong & Tsui) for 1st & 2nd Defendants
Jerome Chan (S.P. Ma & Co.) for 3rd Defendant/Third Party