NG KAM v. SUN WAN CO

IN THE COURT OF APPEAL

_______________

J U D G M E N T

_______________

Fuad, V.-P.:

1. This is an appeal from the judgment and order of Mr. Joseph Duffy, Q.C. (now Duffy, J.) when sitting as a Deputy Judge of the High Court. In an action for damages for or personal injuries the judge found in favour of the Plaintiff, Mr. Ng Kam, against the Defendant, Sun Wan Company The judge announced his decision at the end of the hearing on 7 December 1987 and handed down his reserved judgment on 7 January 1988.

2. The Company filed notice of appeal against the finding of liability but not against the assessment of damages, save to on account of the contributory negligence of the Plaintiff, a plea which was rejected by the judge. After the hearing of this appeal had begun before us, Mr. Alexander Wong, for the Company, who did not represent them in the court below, abandoned the, appeal against liability y and the Company now appeals only against the judge's conclusion that there had been no contributory negligence on the part of the Plaintiff.

3. The Plaintiff who is now nearly 70 years of age had been working on ships as a winch operator since 1954 From 1969 he has been employed by the Company. On 11 December 1981, he was working for them as a winch operator on board a vessel named the Xing Long moored in Hong Kong harbour. The Company was at the time, under contract to load and unload the vessel.

4. The Plaintiff was one of a gang of stevedores doing the work when he was dreadfully injured while lowering one of the ship's derricks. His injuries included rupture of the spleen, which had to be removed; fractures of the ribs on the left side of his chest, some of which punctured and caused the collapse of his left lung; fractures of bones in his left knee, and his left arm had to be amputated.

5. The Plaintiff was working with his fellow stevedores on the No.2 hold of the Xing Long at the material time. I take the narrative of the equipment being used, the method of work employed by the men immediately concerned and the alternative, and safer, methods from, the judge's helpful account in his judgment. Only the paragraphing is mine:

"(a) The derrick is a steel tubular structure about 50 feet long and 1 foot in diameter mounted at its lower end in a pivot on the ship's superstructure. It is-supported by a topping lift wire anchored at the upper end of derrick as well as at a winch at deck level called the topping inch. This latter is an unpowered cable drum upon which the topping winch rope is wound and held in position during operation by a pawl bar engaging ratchets mounted at each end of the drum. The drum also carries a bull wire which is not normally loaded but is used to rotate the drum during operations to raise and lower the derrick."

"(b) The cargo lifting gear operates independently of the topping gear and is powered by an electric winch (the cargo winch) which has a powered rope drum. On the same shaft as the roper drum are two separate cable drums which are used to control the topping winch. The cargo which has a control wheel winch is rotated by the operator either clockwise or anticlockwise to make forward or reverse movements, with a central off position at which a brake automatically operates. Each derrick, certainly at the number two hold, was served by a cargo winch and a topping winch."

"(c) Each hold was worked by a pang of ten including a gang leader or foreman. In this case that was a man called Lee Shing Cheung. There were were two winch operators, one of whom was the Plaintiff, and the other was called Fung Kwan Yiu. There was as also a signalman celled Lee Fook Yau. He operated as a sort of liaison between the winch operator and the crew of the barges or lighters into which, the cargo was unloaded. Apart from them there were six others who operated in the hold for the unloading of the cargo."

"(d) On the day of the accident each hold was employing a gang of ten, and in overall charge of the operation was the chief foreman Fung Yiu Kwong, who had as his assistant Wat Sai Chuen. The Defendant therefore had a total of fifty two employees, on board the Xing Long on 11th December 1981."

"(e) Each hold also had its barges or lighters which were moored in line abreast at the ships side adjacent to the holds. On the day in question number two hold had three or four or four lighters moored alongside the forward end of the hold on the port side."

"(f) Normally the forward end of the hold would be unloaded, by the use of the two forward derricks in union purchase rig (or rigged together), and the aft end of the hold would be unloaded by the use of the two aft derricks also ripped together. Unusually, and probably in this the aft end of the bola was discharged by using the two forward derricks liked together, and linked also to the starboard aft derrick. This method could be used if the winches at aft port derrick were not operating, or perhaps because it was hoped that it would be quicker to adjust the rigging than wait for the barges to move form being alongside the front to being alongside the aft end of the hold."

"(g) When the derrick is in normal operation its position is fixed by the topping wire which extends from the topping lift winch and whose movement is prevented by the pawl bar. If it becomes necessary for some operational reason to change the angle of the derrick, that is properly done by taking the bull wire and shackling its end to one of the cable drums of the cargo winch (each has a hole in the outer rim for this purpose), winding the bull wire onto the cable drum, taking up the tension by operating the cargo winch, releasing the pawl bar (this is necessary only when lowering the derrick) and then adjusting the position of the derrick by operating the cargo winch. Re-engagement of the pawl bar then fixes the position of the topping wire and the angle of the derrick, and the bull wire can then be disconnected from the cargo winch."

"(h) This is the safe and recommended method of altering the angle of the derricks (called topping up or topping down) since there is no chance of the wire slipping and the derrick falling unless a mechanical failure occurs. But it is a time consuming method, especially since the cargo rope would unwind from the cargo winch at the same time as the bull wire was winding on; this wire would have to be controlled and at the end of the operation wound back on to the cargo winch."

"(i) A quicker way of adjusting the angle of the derrick is by taking a few turns of the bull wire round the cargo winch drum, without shackling it to the drum, and taking up the slack manually. The winch is then operated to allow the pawl bar to be released if the derrick is to be lowered, but this is not necessary if the derrick is to be raised. The derrick, can, then be raised or lowered using the power of the winch, with one operator controlling the pawl bar, operating the cargo winch, and a third holding the bull wire."

"(j) For lowering the derrick the operation can he further simplified by keeping the cargo winch stead its power off, after the pawl bar is released, and allowing the bull wire to slip around the winch drum under the control of the man holding the bull wire who releases the tension to allow the derrick to fall and increases the tension to stop it falling. It was this last method, (the entirely manual method) which the Plaintiff was using when he met with his accident. That method is not recommended by any of the safety guides and is recognised to be a highly risky operation."

6. The Plaintiff by his re-re-amended Statement of Claim relied on his employer's negligence, breach of duty and breach of contract. I will now read what seems to me to be the most important particulars pleaded:

"(g) Causing, permitting or instructing the Plaintiff and 2 other employees of the Defendant, namely Fung Kwan Yiu and Lee Fook Yau, to lower the derrick by hand without using the power drive of the cargo winch so as to save time, which unsafe practice the Defendant knew or ought to have known was the common practice of the port and of stevedores and winchmen employed by him or under his control;"

"(j) Failing to provide for sufficient manpower to assist in lowering the derrick, such as another man to help to control the bull wire on the drum, to keep the wire clear of turns and to prevent obstruction and danger to the Plaintiff;"

"(k) Causing, permitting or instructing the Plaintiff to work in an unsafe manner in particular allowing, causing permitting or instructing the Plaintiff to top down the said derrick without the bull wire being securely shackled to the drum end of the said cargo winch;"

"(1) Failing to supervise the topping down operation of the said derrick or to provide and enforce orders and warnings so as to ensure the proper use of the equipment and in particular to ensure the proper use of the said derrick was safe and free from danger;"

"(m) Discouraging the proper method of lowering the derrick because it was slow;"

"(r) Failing to ensure that the system of work that he assigned the Plaintiff to work within was safe and to ensure the manner in which the use of the said derrick supplied was safe to the Plaintiff.

7. He also pleaded a, breach of statutory duty by his employers in causing works to be carried out in a manner that did not provide adequately against the unnecessary risk of accident or bodily injury, in breach of s. 44(1) of the Shipping and Port Control Ordinance, Cap.313.

8. By their re-amended Defence, the Company denied negligence, breach of statutory duty and of contract, and averred that the Plaintiff had engaged in topping down of the derrick without the authorisation or consent of their hatch foreman or of themselves. They pleaded that the chief foreman had expressly ordered the Plaintiff not to top down the derrick, an order which he had failed or refused to obey. They went on to assert that by reason of these matters, with full knowledge of the risks, the Plaintiff had voluntarily consented to accept them and to waive any claims In respect of injury.

9. "Further or in the alternative" it was said, the accident was caused by the Plaintiff's own negligence and the following particulars were given:

"(a) Failing to take adequate precautions for his own safety.

(b) Failing to have the bull wire securely shackled to the drum end of the winch before topping down the derrick.

(c) Failing to get the supervision and assistance of the hatch foreman.

(d) Failing to get sufficient man power to assist in the topping down operation.

(e) Attempting to lower the said derrick without using the power drive of the winchdrum, to wit by winding the bull wire a few turns round the drum and attempting to lower the said derrick by easing the wire into the drum with his hands.

(f) Leaving the slack wire in a mess about his feet and standing on the wire instead of the deck such that when the falling momentum of the said derrick transmitted through the drum onto the wire overpowered the pull of his had the slack wire under the Plaintiff's feet was snatched up rapidly into the revolving drum, thereby throwing him off his balance and dragging him into the drum."

10. The Company's Defence was further explained by particulars given following a request. They said that their chief foreman Fung Yiu Kwong had expressly prohibited the Plaintiff from topping down the derrick. They added that on the day of the accident, before lunch, the Plaintiff had been winching goods at the aft part of hatch no.2. Mr. Fung was overseeing the work when the Plaintiff suggested that the derrick should be lowered a bit. Mr. Fung told the Plaintiff not to do so since the derrick had been operated efficiently in that position for the past four days and also told him not to mess about with the lifting, Rear of the fairly old vessel. The order was given orally.

11. The particulars supplied continued by saying that it was their rule that a derrick could only be lowered on the order of the hatch foreman who would always personally supervise the operation. A winch driver would attend to the engine and another worker would attend to the ropework on the lifting drums. The raising and lowering of the derrick was done by engine power transmitted through the winch drum. They said that their investigations had disclosed the following facts:

"When the hatch foreman was in the cargo hold supervising other work the Plaintiff on the deck asked his colleagues Fung Kwan Yiu and Lee Fook Yau to help him lower the derrick. Fung and Lee told the Plaintiff not to do so. The Plaintiff insisted and became grumpy saying that he was an experienced hand The Plaintiff wound the bull wire a few turns round the winch drum and asked Fung run the engine for one to two seconds to tighten up the wire and then to switch the engine off Lee was asked to lift the stopper bar on the topping lift drum The Plaintiff grabbed the loose end of the bull wire by hand and fried to lower the derrick by manually easing the wire into the drum As the derrick descended its fall increased in speed and the Plaintiff was unable to sustain the hold on the wire. Fung and Lee saw the derrick falling down quickly and fled for heir lives. The Plaintiff was next seen lying unconscious between the winch drum and the topping lift drum."

12. The learned judge reviewed the evidence in great detail in his judgment. As to the way the accident had occurred, he said none of the Plaintiff's witnesses could give a satisfactory account of precisely what happened. He accepted the evidence that the derrick was being lowered with the Plaintiff on the bull wire, Fung Kwan Yiu (a winchman) on the cargo winch and Lee Fook Yan (the signalman) looking after the pawl bar. They had all testified that the derrick had fallen and that the Plaintiff was left lying on the deck unconscious. However, the judge concluded, since the Plaintiff had probably fallen backwards, he found it more likely than not that he was knocked off balance by the length of the bull wire lying on the deck behind him, which would at least have interfered with his foothold and might well have knocked him off his feet in its swift movement forward as the derrick began to fall.

13. In approaching the factual issues he had to resolve, the judge observed that it was important to bear in mind that a stevedore company was paid according to the tonnage unloaded, also many dollars per tan of cargo, so that time was an important commodity. The Company's witness, Fung Yiu Kwong, had reed that, so far as the lighter owners were concerned, they would normally be prepared to take risks to speed in the unloading of a ship. This he had said when he had been telling the Court how the lighters were manoeuvered into position alongside the ship to receive cargo, wasting as little time as Possible, but risking danger to either the ship or the lighten, not to mention the People on board The judge said that the overall impression he had received from all the witnesses was that as time meant money, it was of the essence, a factor which he felt he had to keep firmly in mind when deciding issues between the parties in this case. In other words, he was required to decide which systems were used, which were disallowed, which were permitted, to which blind eyes were turned, and what was the attitude of the Company, in the context of an industry where the quicker the work was done the fast would money be earned.

14. As to the reason why the Plaintiff was lowering the derrick when the accident occurred the judge accepted the evidence of the Plaintiff and his witnesses that the chief foreman (despite his own testimony to the contrary) had instigated and supervised the rigging up of the gear to marry the forward derricks to the aft starboard derrick. The judge found no satisfactory evidence which explained the three derrick rigging, although he was satisfied that this system was being used. The judge clearly believed the evidence given by the Plaintiff and Fung Kwan Yiu that after the three derrick system had been rigged, the stevedores began to unload the aft end of the bold. Almost immediately the cargo wire began to catch on the hatch beams. By that time the chief foreman had gone somewhere else on the ship, and Lee Shing Cheung had returned to his post in the hold. When the cargo wire began to catch on the hatch beams, Lee Shing Cheung shouted up from the hold that the forward port derrick should be lowered. The Plaintiff was about to do this immediately, but Fung Kwan Yiu suggested that they wait until after the lunch breach which was near, and when more people, and the boss, would be there. Lee Shing Cheung responded to this by repeating his instruction to lower the derrick adding that to lower it slightly did not need the involvement of many people.

15. Captain Lloyd, an expert witness called by the Plaintiff, told the judge that he did not understand why the three derricks had been rigged together, and that this system was less safe. In the circumstances, he would have expected the chief foreman to stay there and see that all was well.

16. The report of the Marine Surveyors Carmichael & Clarke Co. Ltd. says this of the three derricks in tandem system:

"This arrangement is ridiculous as the runner after starboard derrick could have been attached, directly to that of the forward port derrick without going to the trouble of the forward starboard wire through the head block of the n after starboard derrick."

17. The evidence showed that it was the use of this system which caused the runners and cargo being lifted to catch on the tween deck beams. If the derrick was lowered slightly the runner wire would plumb clear of the hatch beam.

18. The Company called their chief foreman, Mr. Fung Yiu Kwong, as their only witness. He told the Court that on the morning in question the Plaintiff had called him over to speak to him. The Plaintiff informed him that the derrick was not far enough out and as the lighter was a very large one, it would be difficult to work. He asked if it would be alright to lower the derrick a little. He said "No" and explained to the Plaintiff that this would be dangerous, and why. The Plaintiff had "remained silent".

19. The witness wen on to say that he had seen the Plaintiff again at 11:30 a.m. that morning when he noticed that he was disengaging the pulley which was attached to the runner wire. He had then disengaged the block and taken it away with the cargo book. And so he had spoken to the Plaintiff again and remined him not to lower the derrick. The judge said that he did not believe this evidence.

20. Mr. Fung also said that about once a month or so he used to see employees of his company trying to lower the derricks manually and without power. When he saw this, he would at once instruct the gang leader to tell the workers that a motor winch should he used whenever derricks had to he lowered. He then said that he had last seen this being done in 1965.

21. It is also clear that the judge accepted the evidence of the Plaintiff and his witnesses that derricks were regularly lowered by hand. The Plaintiff said that over the past "several tens of years he had always lowered manually and that 70% of the other winchmen did so too. He said that the chief foreman had often seen them using this method and had never instructed them using this method and had never instructed them not to. Nor had anyone warned them that the manual method was dangerous.

22. The other winchman who gave evidence, Fung Kwan Yiu, also testified that the manual method of lowering derricks was employed 70% of the time and that he had seen the chief foreman himself doing it that way. He, too had heard no warnings about the method being dangerous and his conclusion was that far from the Company forbidding their employees from using the manual method, they wanted that method to be used.

23. Another witness, Lee Food Yau, the signalman, who the judge observed was probably the most experienced of the witnesses, told the Court that during all his years in the stevedore business that method of lowering derricks had been adopted and neither the Company nor any other employer had forbidden its use. The judge's finding was that the manual method was not only usual but it was condoned and even encouraged by the Company.

24. The judge said that the impression he had formed of Mr. Fung Yiu Kwong, the chief foreman, was that he was doing his best for his company rather than trying to assist the Court. He found to be astonishing the assertion that he had never seen any of the Company's employees actually lowering a derrick since the year 1965. In the judge's view the witness was trying to maintain that he would stop the use of the manual method whenever he saw it being used, although, unfortunately, during the past 22 years he had just never happened to be around when derricks were being lowered. If anything, this evidence, which he did not believe, served only to confirm his view that the Company probably allowed method, certainly never forbade its use, and never warned their employees of its dangers.

25. In the course of his judgment, the judge cited passages from the speeches in General Cleaning Contractors Ltd. v. Christmas [1953] AC 180. The judge spoke of the heavy burden the Plaintiff had assumed by citing Lord Reid's observations at p.192: "A plaintiff who seeks to have condemned as unsafe a system of work which has been generally used for a long time. In an important-trade undertakes a heavy onus: if he is right it means that all, or practically all, the numerous employers in the trade have been habitually neglecting their duty to their men." About this, the judge said that Lord Reid's observations could be applied equally well to the stevedoring trade in Hong Kong, where the system of derricks to facilitate the unloading of ships by the entirely manual method had been a trade practice .for many years, The situation had to a large extent been cured by the development of more sophisticated equipment, but for ships with the same equipment As the Xing Long, the practice had remained. The Plaintiff was, therefore, in effect accusing very many stevedoring companies of neglecting their duties to their employees over a long period of time.

26. The judge also cited a long passage which came later in Lord Reid's speech will not read it. It starts with the words "The question then is whether ..." at the foot of p.193 and continues to the end of his speech at p.194.

27. The judge acknowledged that there was a reasonably safe system available to the stevedores by shackling the bull wire to the drum and using the power the cargo winch to raise, or lower the derrick. However, he said that system, was rarely used and the practice of us using the entirely manual method had grown up which ignored the obvious risks involved. I would mention here that there was a report before the Court from the Marine Surveyors which says:

" The derrick was lowered by the only means available and for which the equipment used was fitted to the vessel. Had the ship's crew been asked to lower the derrick, they would have used the same method except that they might have shackled the topping lift winch drive wire to the cargo which drum by means of the eye in the end of the wire.

    It is our experience that the wire is rarely shackled to the drum This is because the hull wire has to he very long to lift the derrick from the horizontal position to the vertical as due to the topping lift blocks arrangement the derrick head will only move 1/3 of the length taken up on the bull wire and there may be 50 to 60 feet of bull wire lying on the deck when the derrick is topped.

    If the end of the bull wire is then shackled to the drum, it is necessary to rotate It until all of the slack bull wire is taken up before it is possible to rotate the topping winch to lift the pawl bar As the cargo winch drum and barrel are on the same shaft and have no means of being disengaged the runner wire will be paid out from the barrel onto the deck and after the position of the derrick has been adjusted it is necessary to take the bull wire off the drum again and replace the runner wire by rotating the barrel and guiding the wire rope by hand.

    An additional man is necessary to ensure that no kinks form in the wire behind the person feeding the runner wire on the drum. Thus it can be seen that much less handling of wires are necessary when only a few turns of the bull wire is taken up on the winch drum rather than shackling on the end of the wire and this results in much less likelihood of damage to the hands from handling wires particularly where heavy protective gloves are not provided.

    Only a few minutes will be necessary to alter the position of the derrick by taking only a few turns of bull wire round the drum whereas to do the job as described above will take much longer - say a quarter of an hour or more and if the bull wire had been coiled up so as to not be a hazard underfoot the uncoiling of it to feed onto the drum and then recoiling after the operation would probably involve an additional ten minutes."

28. The judge found that the Company had not taken all (or, indeed, any) reasonable steps to ensure that the safer system was operated but had "more or less encouraged the use of the unsafe system by, tacitly accepting its use." He held that the Company was liable at common law, and it followed that they were in breach of an implied term in the contract of employment. The Company was also liable for breach of statutory duty imposed upon "a person in change of works" by s.44(l) of the Shipping and Port Control Ordinance, Cap.313. I interpolate here that s.44(1) is in these terms:

"(1) A person in charge of works shall not carry out, or cause to be carried out, any works in a condition or manner that does not provide adequately against unnecessary risk of accident or bodily injury."

By s.36 "person in charge of works" includes "(b) a principal contractor or sub-contractor, if any, who contracts to carry out, or who carries out any works" and "works" includes "(c) cargo handling on a vessel".

29. Turning to the question whether or not the manual method was a safe system, the judge noted that the chief foreman had agreed that it was dangerous. This was also the opinion of the Plaintiff's expert witness Captain Lloyd. Although the Captain had never seen anyone injured as a result, he had witnessed, when this way of lowering a derrick was used, moments of "tension and drama" because of the obvious risks involved. The judge pointed out that each derrick weighed over one ton and "the entirely manual method whereby the worker held the derrick in position only with the help of the friction of the bull wire wound four or five times round the cargo drum, and lowered the derrick by breading that friction, obviously always involved the risk of his losing control before re-establishing the friction, of the wire running away from him, and the derrick free falling to the deck."

30. The judge also found that the Plaintiff was not guilty of contributory negligence in not waiting Aorasking for help. Nor would there have been contributory negligence on the part of the Plaintiff if he had stood on the wire when he was lowering the derrick so that he was swept off his feet when the derrick, began to fall. This, he considered fell to be decided as part of the work system provided by the Company. In his view the Plaintiff was simply going about his employer's business in the way they would have do it. The judge, here, clearly had in mind the passage he had cited from Earl Jowitt's speech in the General Cleaning Contractors case, where at p.187 he agreed with Denning, L.J.'s observations in his judgment in the Court of Appeal where he had said:

"At the hearing of the Appeal it was suggested that the accident might have been avoided if the man had put in a chock to prevent the bottom sash coming right down as it did. This was, in effect a suggestion of contributory negligence. This was negatived by the judge and I agree with him. You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employees expected him to do it, and, if they had taken proper safeguards, the accident would not have happened."

31. Mr. Wong submitted that the judge should have found a measure of on the part of the Plaintiff in view of the fact that with all his years of experience he should have realised that he was lowering the derrick in A way that had obvious dangers to his own safety and that, at least, he should waited until someone could help him and supervision could be provided.

32. The Plaintiff was that way, not performing his task in a dangerous way to save himself trouble. He was doing it in that way to get on with his employer's business; in a way, as the judge found, that was condoned and tacitly encouraged by his employer. There were safer systems available but they were not ones which, in practice, were used. Indeed as I have mentioned, the chief foreman himself had employed the same method on the evidence accepted by the judge. In these circumstances, I do not think that an employer can be heard to say that this employee was being negligent in carrying out the work in that manner. It seems to me that the approach of Denning, L. J. in the Court of Until hearing of the General Cleaning Contractors case which I have read is applicable.

33. As to the suggestion that the Plaintiff should have obtained or waited for help, there was no room for a finding that the Plaintiff ought to have taken his own precautions ex make condoned unsafe system more safe. In the long passage from the speech of Lord Reid in the General Cleaning Contractors case quoted by the judge, occurs the following observation, at p.194: "Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions." In my view, that statement of principle is in point here.

34. Mr. Wong relied on Wilson v. Tyneside Window Cleaning Co. [1958] 2 OB 110 There the plaintiff was an experienced and skilled window cleaner. He had frequently been sent to clean the windows of Particular customer by his employer. He knew that he should not trust the handles on windows without testing them. While his employer did not warn him about particular dangers, he had been instructed not to clean a window which presented unusual difficulty and about which he was in doubt regarding questions of safety. In an eventuality of that kind he had been told to report the fact and ask for further instructions. The evidence did not show that there was a practice in the trade of inspecting premises before work began, or of issuing repeated warnings to employees of dangers. While cleaning one window the plaintiff saw, that its woodwork was rotten, the sash was stiff and one of the two handles was missing. He attempted to open the sash window by using the remaining handle The handle gave way he fell and was injured. It was held that the employer had discharged his duty to take reasonable care not to subject the plaintiff to unnecessary risk since the danger was so obvious, he was so experienced a window cleaner and in the light of the instructions he had been given.

35. I will only say that the circumstances of that case were quite different to those of the present case, and no statement of principle emerges from the former. In any event, in our case the dangers in lowering the derrick by hand were by no means obvious to the Plaintiff despite his years of experience. He had performed this operation in the same way all his working life as a stevedore (as had others) without mishap and, it seems, no accidents arising out of the use of that method had been reported. One must wonder how long the Plaintiff would have remained employed, engaged on daily rates as he was despite his long service with the Company, if he had insisted upon using one of the safer methods (which took more time) described by Captain Lloyd.

36. Another case cited to us by Mr. Wong was Wingfield v. Ellerman's Wilson Line, Ltd. [1960] 2 Lloyd's Rep. 16. That case does not assist him because the workman who was found to be guilty of contributory negligence was using a ladder of the wrong length for the job, which was resting on top of a cargo placed on a curved surface covered with a layer of snow and which was not secured in any way. It is not surprising on the facts of that case that a finding of contributory negligence was made by the trial judge and upheld by the Court of Appeal. The facts wholly exclude its application to the present case.

37. I find myself quite unable to disturb the judge's finding that no contributory negligence had been established against the Plaintiff. On the evidence that he accepted for the cogent reasons that be gave, in my judgment, no other conclusion was possible.

38. I would dismiss the appeal.

Hunter, J.A.:

39. I agree. This Appellant is quite unable to surmount the judge's findings of fact for the reasons fully and carefully given by my Lord. There is nothing further I wish to add.

Power, J.A.:

40. I also agree and have nothing to add.