SUEN YUNG CHEUNG v. SUI KONG WHARF CO LTD

Date of Hearing : 26 September to 28 September and 14 October 2005

Date of Judgment : 18 November 2005

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J U D G M E N T

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1. Suen Shu Hing (“the deceased”) was at all material times an independent contractor hired by the defendant as a shore crane operator to operate a shore crane for the loading of cargoes onto and the unloading of cargoes from vessels alongside the defendant’s berth at the wharf at Western District Public Cargo Working Area (“the wharf”).  The defendant carried on the business of cargo handling at the wharf and had the use of berth 31. 

2. On 25 May 2000 the deceased had to operate the shore crane which was situated at the wharf alongside berth 31 to load bundles of stainless steel on board a mainland coaster “Yue Hui 108” (“the vessel”) which was alongside berth 31.

3. The shore crane provided by the defendant to the deceased for the loading of the goods was fixed in position on the shore at the wharf alongside berth 31.  The deceased was required to operate the shore crane to lift up the goods and move them by the shore crane to the cargo hold of the vessel.

4. The vessel was larger than the usual vessels arriving at the wharf for the transport of goods.  The vessel was 58.05 metres long with a high freeboard and with a walkway extending along the length and breadth of the hatch of the cargo hold.

5. At about 4.45 pm on 25 May 2000 the deceased went on board the vessel.  He suddenly fell from the vessel into the sea through a gap between the vessel and the wharf.  Divers of the Fire Service Department were called in to rescue him.  The deceased was brought back to shore from the sea at about 5.12 pm.  He was sent to hospital where unfortunately, he was certified dead.

6. The plaintiffs are the administratrices of the estate of the deceased.  They have brought this action on behalf of the estate of the deceased under the Law Amendment and Reform (Consolidation) Ordinance (Cap.23) and on behalf of the dependants of the deceased under the Fatal Accidents Ordinance (Cap. 22).

7. At the outset of the trial on 26 September 2005 a consent order was made that there be a split trial on the issue of liability and quantum.  This is the trial of the issue of liability.

8. The plaintiff’s case is that the defendant was the occupier of the wharf and the vessel at the material time.  It is the plaintiff’s case that the defendant was in breach of the common duty of care owed to the plaintiff under the Occupiers Liability Ordinance (Cap. 314) (“the Ordinance”) and that the deceased fell and died as a result of the breach of duty as particularized in the amended statement of claim.  This is denied by the defendant.

The Issues

9. The issues, as submitted by counsel for the defendant and as agreed to by counsel for the plaintiff, are:

(1)  whether the defendant was the occupier of the vessel;

(2)  if it was, whether, in any event, the act of the deceased in going over onto the vessel was a novus actus interveniens breaking the chain of causation;

(3)  if the said act of the deceased was not a novus actus interveniens, then whether the said act was a risk willingly accepted by the deceased within the meaning of section 3(5) of the Ordinance;

(4)  if the deceased has not willingly accepted the risk by going over to the vessel, then whether the defendant has complied with the common duty of care under section 3(2) of the Ordinance;

(5)  if the defendant is held to be liable, then whether there has been contributory negligence on the part of the plaintiff.

The accident

10. It is first of all necessary to set out the circumstances leading to the fall of the deceased from the vessel.

11. No one actually witnessed the deceased fall from the vessel.  

12. The plaintiffs rely on the investigation report of Tsang Kwong-charm the Shipping Safety Officer of the Marine Industrial Safety Section of the Marine Department dated 8 June 2000 (“the investigation report”) as to the circumstances of the accident.

13. According to the investigation report, on 25 May 2000 the vessel received an order for loading stainless steel plates at the wharf.  It arrived at the wharf at 14.30 hours.  Another vessel moored in front of the vessel was to be loaded before the vessel.  Therefore, the vessel had to shift to let that vessel moor near the crane.  The vessel finished loading and left the berth at 16.30 hours.  Then the vessel went back to moor alongside the wharf.

14. The stainless steel plates owned by a Mainland company were packed in bundles at the wharf.  A representative of the company was at the wharf responsible for ensuring the loading of all steel plates to the vessel.

15. The deceased went on board the vessel to check where the steel plates should be loaded while the crew of the vessel were attending the mooring ropes.

16. The Chief Officer of the vessel at midship and the representative of the company at the berth heard a noise like a heavy object falling into the sea and they looked around.  They realized that the deceased had fallen into the sea.  They then shouted for help.

17. The tally clerk and a worker at the wharf came to the waterfront but they couldn’t find the deceased.  Divers of the Fire Services Department arrived at the scene and brought the deceased from the sea to shore at 17.12 hours.  The deceased was admitted to hospital where he was certified dead.

18. The plaintiffs also rely on the statements and the evidence given by Kwok Man Pan (“Kwok”) at the Coroner’s inquest.  Kwok did not give evidence at the trial. 

19. Kwok gave a statement to the Marine Department on 26 May 2000.  He was sent from the Mainland to ensure that the steel plates were loaded and shipped.  He was waiting at the material time on the wharf for the vessel to be moored.  At about 16.40 hours the vessel moved near to the outer bank and at the left.  He saw the crew of the vessel fastening the towropes at the front end and at the back of the vessel around the bitts on the shore.  He also assisted in fastening the towropes at the front of the vessel around the bitt. 

20. He said that he saw the deceased jump over onto the vessel.  The vessel had two decks and he saw the deceased in the lower deck at the edge of the vessel.  The deceased had jumped over by holding a part of the vessel with one hand and he stretched his leg over it and climbed onto the vessel.  He was standing on the edge of the vessel.  Kwok was at the wharf at the time when he saw that and he was walking towards one end of the vessel near the cockpit.  He said that the vessel was not moored at that position and as the waves were very strong at that time he went there to tighten the ropes used in mooring the vessel. 

21. Kwok did not see the deceased fall but he heard a sound “Dong”.  When he turned back to have a look he saw that the deceased had fallen down.

22. Kwok also said in a statement to the police on 25 May 2000 that suddenly the vessel shook violently due to a great wave and he believed that this was what made the deceased lose his balance and fall down to the sea.

23. The investigation report also stated that the deceased went on board the vessel when the mooring ropes were still being fastened.

24. The cause of death as shown in the autopsy report on the deceased showed that the cause of death was drowning.  The autopsy report also showed that the deceased had suffered from a head injury possibly by knocking against a hard object during the fall into the sea.  This contributed to the causation of the drowning in an indirect manner.

25. The Coroner also found that the deceased slipped and fell into the sea when he was on board the vessel.

26. I heard evidence from Suen Guixiong, the younger brother of the deceased.

27. I also heard evidence from Ho Chui Fai (“Ho”), a director and major shareholder of the defendant, Leung Pun Yuen (“Leung”) and Yuen Kwok Wah (“Yuen”).  Leung was working as a tally clerk for the defendant at the wharf at the material time.  Yuen was hired by the defendant after the accident and was an experienced shore crane operator.  Yuen was hired from 26 May 2000, a day after the accident.  I also heard evidence from an independent witness Ng Hoi Cheung (“Ng”), another shore crane operator working at a wharf next to the wharf.

28. I have no hesitation in accepting the evidence of Ho, Leung, Yuen and Ng.  I found them to be honest, credible and reliable witnesses.  I cannot say the same for Suen Guixiong.  Where his evidence is at variance with the evidence of Ho, Leung and Yuen, I prefer their evidence to the evidence of Suen Guixiong.

29. The defendant’s business included arranging cargo loading at the wharf onto and from vessels at the berths used by the defendant at the wharf.  At the material time the defendant used berth 31.  The deceased was hired by the defendant as a shore crane operator to load goods to and from vessels moored at the wharf by means of the shore crane.  It is clear that the deceased was in independent contractor of the defendant and not an employee at all material times.  Ho gave evidence, which I accept, that the deceased was hired by the defendant to operate the shore crane since about 1996 when the deceased was qualified to operate a shore crane.   

30. The evidence of Ho, as supported by the evidence of Leung, who worked for the defendant, is that the deceased would move goods from the crane and place them into the cargo hold of vessels at the wharf with the assistance of signalmen from the vessels.  The signalmen would guide the deceased by hand signals as to where to place the goods in the vessel.  It was, on their evidence, not necessary for the deceased, as the shore crane operator, to board any vessel so as to perform his duties.  I accept their evidence.

31. Ho, Leung and Yuen also gave evidence as to the display of prominent warning notices at the wharf near the shore crane and at the container office of the defendant alongside the wharf.  Notices were placed both at the entrance to and inside the container office which was also used by the defendant.  The notice placed by the defendant stated :

“Embarkation is strictly forbidden. The offender shall be held responsible for all the consequences.

                                                                                 Sui Kong Wharf  ”

This clearly warned persons, including the deceased, that embarkation on vessels was strictly forbidden.

32. On the evidence called on behalf of the defendants, which I accept, it is clear that prominent warning notices were placed at the container office which was at the wharf near the shore crane.  At the time of the accident the defendant was using berth 31 and only moved to berth 6 in 2001.  From 1988 to 2001 the defendant was using berth 31.  On the evidence of Ho, the container officer and the warning notice thereat was already there one year prior to the accident and at the time of the accident.  Yuen, who replaced the deceased as the shore crane operator after his death, started working at berth 31 on 26 May 2000 and he also saw the container office and the warning notice there. 

33. There was also a warning notice placed on a piece of canvas near the shore crane.  At the time of the accident it seems that this was covered up by another piece of canvas to protect it from rain.  But when the other piece of canvas was removed, the notice was there.  Yuen said, and I accept, that he was able to see the notice when the piece of canvas covering it was removed about 2 months after he had been hired by the defendant.  This is also supported by the evidence of Leung.  On the evidence, it can be inferred that the notice had been placed on the canvas covering the crane and had been there for some time prior to the accident.  

34. I find that the warning notice was prominently displaced at the container office at the time of and before the accident.  I also find that the warning notice was placed on the piece of canvas near the shore crane at some time before the accident.

35. The deceased having worked there since about 1996 would have seen the warning notice at the container office as well as on the canvas near the shore crane.  He would have known that he was forbidden to embark on the vessel.

36. Ho also said in evidence that prior to the accident a copy of another notice with the heading ‘Safety Code on Production and Operation on Wharf’ was displayed at the container office.  This included the following provision :

“ 8. No embarkation shall be allowed before a vessel berths safely at the wharf.  No embarkation or disembarkation shall be allowed without access boards or gangway ladders after the berthing of the vessel at the wharf, otherwise the offenders shall be liable for all the consequences of accidents arising therefrom.”

37. Ho explained in evidence that embarkation was allowed only under special circumstances with the consent of the master or owner of the vessel.  He said that this occurred for instance, when it was necessary to go on board the vessel to take photographs of goods that were wet or damaged.  However, this was done with the consent of the master or owner of the vessel.

38. It was plain, however, from his evidence, which I accept, that a shore crane operator was not required and was not permitted to go on board a vessel.

39. Suen Guixiong, the younger brother of the deceased, gave evidence that he had been to the wharf about a year prior to the accident on 25 May 2000 as well as a few days after the accident.  He said that he never saw the container office at the wharf.  His evidence suggests that the container office was not at the wharf when he went there at the time of the accident and also at about the time of his visit a year prior to the accident.  I do not believe him. 

40. Ng, the independent witness, was also a shore crane operator.  He operated a shore crane for someone else at the wharf next to the defendant’s wharf and he had more than 20 years experience.  

41. Ng also said that at the wharf where he worked they were also forbidden from embarking on vessels.  He confirmed that there was no need for a shore crane operator to board a vessel in the course of his work and he had never done so in his many years experience.  This included vessels of a similar size to the vessel.  He had also encountered large vessels similar in size to the vessel in the course of his work from time to time.  He confirmed that he relied on signalmen on board vessels to assist him in the loading and unloading of goods.  He also said that if no signalman was around to assist him then he would simply knock off work and this had happened to him in the past.  I accept his evidence.

42. The plaintiff’s case is that it was necessary for the deceased to go on board the vessel to check the position of the hatchway.  

43. Ms Lau, for the plaintiffs relied on the evidence given by Kwok at the Coroner’s inquest.  She relied in particular on the transcript of evidence as follows :

“Q. (by the Coroner) : You said that the deceased was standing at the edge of the vessel and observing. Was he observing the condition in the hold?

A.: Correct he was checking the position, checking the position.

Q.: That means as to how to lift the cargo, right?

A.: Right.

Q.: Very often, the crane operation operating the crane-I mean not only on that day, has to do this very often?

A.: I have seen (that).There is such a situation.”

44. The plaintiffs also relied on the following passage in the transcript of Kwok’s evidence before the Coroner :

“……………………………….Is it very often for a crane operator performing operation at the wharf while doing what was said before that is while observing the position, to jump onto the vessel like that, and then jump back to the shore?

A.: The types of vessel are different while the condition of the wharf’s are also different.  As far as this occasion is concerned it was the first time I saw such a situation.”

45. I would observe that the fact that Kwok may have seen that before does not mean that it happens often.  The question framed by the Coroner was not supported by any evidence to the effect that there was a common practice of shore crane operators standing on vessels to check the position of the hold.  The evidence of Kwok at the inquest does not support this.  This is also contrary to the evidence before me, which I accept, called on behalf of the defendants to the effect that there was no need for the deceased to go on board the vessel.  I find that although Kwok may have seen a crane operator before standing on a vessel, this was not a common practice of shore crane operators.

46. I find that the deceased was not required to go on board the vessel in the course of his work as a shore crane operator.  I also find that it was not necessary for him to do so.

47. It is clear from the evidence of Yuen, Leung and Ng that the deceased was not wearing his sports shoes when he climbed on board the vessel. 

48. Leung gave evidence that he saw the deceased shortly before the accident at the container office and the deceased was wearing slippers and white socks instead of sports shoes.  After the accident when he went to the side of the berth, he saw the slippers floating in the sea.

49. Ng also said that when he saw the deceased retrieved from the sea he was wearing white socks.  He had also noticed a pair of slippers floating in the sea.

50. Suen Guixiong gave evidence that when he went to collect the deceased’s belongings after the accident he was not given a pair of the deceased’s sports shoes.  This is contrary to the evidence of Ho, Yuen and Leung, whose evidence I accept, that the deceased’s sports shoes were given to Suen Guixiong when he went to collect the deceased’s belongings after the accident.  The effect of this is that the deceased had not worn his sports shoes at the time of the accident.  I do not believe Suen Guixiong.  I believe and accept the evidence of Ho, Yuen and Leung.

51. I find that the deceased ignored the warning notices which warned him and others not to embark on vessels.    

52.  I also find that wh ilst the vessel was being moored at the wharf and the ropes were being fastened, the deceased climbed on board the vessel .  He stood on the edge of the vessel, probably to check the position of the hatchway of the vessel before loading the stainless steel plates by means of the shore crane from the wharf onto the vessel.   At the time he was not wearing his sports shoes but a pair of slippers and white socks.  I find that wh ilst he was on board the vessel he lost his balance as there was a strong wave which caused the vessel to shake and he fell into the sea in the gap between the vessel and the wharf.   It was also windy at the time.   He probably hit his head when falling down against a hard object and this resulted in his drowning. 

53.  It is clear, however, and I so find , that when he fell into the sea he was already on the vessel and not on the wharf. 

Was the defendant an occupier of the vessel?

54. T he plaintiff’s case i s on the basis that the defendant was in breach of its common duty of care under the Ordinance . 

55. As the deceased was on the vessel when he fell, it is n ecessary for the plaintiff s   to first establish that the defendant was the occupier of the vessel before any liability can be found against the def endant .

56. It is the plaintiff’s case that the defendant was the occupier of both the wharf and the vessel.  It is not disputed that the defendant was the occupier of the wharf.  However, the defendant disputes that it was the occupier of the vessel at any time. 

57. As is stated at para. 7-14 in Charlesworth & Percy on Negligence 10 th Edn :

“ ........................ On the question of who is an occupier, “the answer in each case depends on the particular facts of the case and especially upon the nature and extent of the occupation and control in fact enjoyed or exercised by the defendants over the premises.”  Accordingly, an occupier is any person who is in actual occupation for the time being or having possession or physical control, the degree of which need neither be entire or exclusively his, over the premises concerned or over the fixed or the moveable structures including such things as vessels, vehicles or aircraft.”

58. It is also stated at para. 10-09 Clerk & Lindsell on Torts 18 th Edn that a person is likely to be regarded as an occupier if he has a sufficient degree of control over premises to be able to ensure their safety, and to appreciate that a failure on his part to use care may result in injury to a person coming on to them.

59. I accept, as is stated at para. 7-17 Charlesworth & Percy, that occupation can be by more than one person in which event each is under a duty of care to a visitor, dependent upon the degree of control he exercises.  However, the deceased was never invited by the defendant to go on board the vessel.  The deceased was not required to go on board the vessel for the purpose of the loading work.  The defendant was not in occupation or control of the vessel at any time.  The defendant did not invite the deceased to board the vessel.  It would not have had the right to do so without the consent of the master or the owner of the vessel.  On the evidence, it is clear that the defendant did not exercise occupation or control of the vessel.  In my judgment the defendant was not an occupier of the vessel at any time.  The plaintiffs have failed to establish that the defendant was the occupier of the vessel at the time when the deceased boarded it. 

60. In the circumstances the defendant cannot be liable for breach of the common duty of care to the deceased under the Ordinance.  The plaintiffs’ claims fail and are dismissed. 

61. Issue (1) is resolved in favour of the defendants.  It is not necessary to consider the other issues.

Novus actus interveniens?

62. However, if this matter goes elsewhere and it is held that the defendant was the occupier of the vessel, I go on to consider issue (2).

63. On the assumption that there was a duty imposed on the defendant and the defendant was in breach of that duty (which the defendant denies), it was submitted on behalf of the defendant that the act of the deceased in going over onto the vessel was something so unforeseeable in the circumstances that the act should be considered as a novus actus interveniens. 

64. Para. 2-36 Clerk & Lindsell on Torts 18 th Edn states as follows :

“ Where the defendant’s conduct forms part of a sequence of events leading to harm to the claimant, and the act of another person, without which the damage would not have occurred, intervenes between the defendant’s wrongful conduct and the damage, the court has to decide whether the defendant remains responsible or whether the act constitutes a novus actus interveniens, i.e. whether it can be regarded as breaking the causal connection between the wrong and the damage.  The defendant’s conduct may have satisfied the “but for” test, in the sense that without his wrongful conduct the damage would not have occurred.  But this, in itself, is not determinative of whether he should be held responsible where other causally relevant events have played a role.  Thus, in the majority of cases where a plea of novus actus succeeds, there will have been a prior finding that the original wrongdoing does indeed satisfy the “but for” test of factual causation.  It is a cause of the damage.  On grounds of equity and policy, the court then proceeds to find that in the light of subsequent events, the defendant should not be held answerable for consequences beyond his control. A novus actus may take three forms :

(i)   some natural event independent of any human agency;

(ii)  an act (or omission) by a third party;

(iii)  the conduct of the claimant himself.

Whatever its form the novus actus must constitute an event of such impact that it obliterates the wrongdoing of the defendant.”

65. In Home Office v. Dorset Yacht Co. Ltd. [1970] AC 1004, Lord Reid said at page 1030 :

“The cases show that, where human action forms one of the links between the original wrongdoing of the defendant and loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation.  I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than a consequence of the original wrongdoing.  But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortuous or criminal.  Unfortunately, tortuous or criminal action by a third party is often ‘the very kind of thing’ which is likely to happen as a result of the wrongful or careless act of the defendant.”

66. Here, the defendant’s case is that the defendant’s act is going over to the vessel was so unforeseeable that the act should be considered as a novus actus interveniens.  I agree.  The fact that Kwok may have seen crane operators going over to a vessel before simply means that it may have happened before.  Yuen and Ng are experienced shore crane operators and they said that they have never seen shore crane operators going on board a vessel to check the cargo hold.  They have said that it was not necessary for shore crane operators to do so.  I accept their evidence. 

67. I find that it was not reasonably foreseeable that the deceased would go over onto the vessel.  It seems to me, and I so find, that the act of the defendant in going over to the vessel was so unforeseeable that it should be considered a novus actus interveniens.

68. Issue (2) is resolved in favour of the defendant and the defendant is not liable for the fall of the deceased.

Conclusion

69. In the circumstances, it is not necessary to consider the other issues.

70. The claims of the plaintiffs are dismissed.  I make an order nisi for costs as follows :

(1) costs of the action to the defendant ;

(2) the plaintiffs’ own costs to be taxed in accordance with Legal Aid Regulations.oH