NG CHI FAI v. HONGKONG INTERNATIONAL TERMINALS LTD

HCPI 533/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.533 OF 2001

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

1. On 24 June 1998, the Plaintiff was injured while carrying out repair works to the sewage pump of Terminal Seven of the Defendant. The injury caused substantial disability to the Plaintiff. The Plaintiff was employed by the Third Party, Token Engineering Limited. Workmen's compensation had been paid by the Third Party to the Plaintiff.

2. Proceedings were brought by the Plaintiff against the Defendant, the Hongkong International Terminals Limited, for negligence. The Plaintiff and the Defendant had reached settlement, and a sum was agreed to be paid in the amount of $400,000. The Third Party's proceedings has been brought by the Defendant against the Third Party for indemnity in relation to what the Defendant has to pay to the Plaintiff. The Third Party counterclaimed against the Defendant for what the Third Party paid to the Plaintiff in respect of the workmen's compensation. Quantum therefore is not in issue but respective liability between the Defendant and the Third Party is very much in issue.

3. Everything at the trial turns on the factual dispute as to whether, at the relevant time, the Defendant's engineer by the name of Paul Cheung Chi Keung informed and reassured the Plaintiff that the main power switch to the pumps had been switched off and disconnected. The accident was caused because the power to one of the two pumps had not been disconnected and the Plaintiff, in the course of working on a pump suddenly found his hand caught in the blades of the pump.

4. Three witnesses gave evidence at the trial : Mr Ng the Plaintiff, Mr Chan the driver of the Third Party who was at the scene, and Mr Cheung the engineer of the Defendant. Two different versions basically emerged, the Plaintiff's and the Third Party's version, the evidence given by Mr Ng and Mr Chan the driver, to the effect that assurances had been given by Mr Cheung that the power switch had been turned off and that power connection to the pumps had been disconnected. The case of Mr Cheung is that he had clearly told Mr Ng that he had only switched off one of the pumps' power and the other pump's power was still very much connected and that he did not inform Mr Ng that he had switched off all the power. It is a contest of credibility.

5. I find, in terms of my assessment of the witnesses, that Mr Ng is a reliable and truthful witness, not prone to exaggeration and he gave the best account he could. What he said was consistent with his previous statements. He is powerfully supported by a very, very good witness, Mr Chan. Although Mr Chan is a driver, he is a very intelligent person and he struck me as a particularly valuable witness. On the other hand, I find that Mr Cheung, although he may be a professional engineer, he struck me as not being bright, was evasive and not reliable. So in terms of the quality of evidence and the reliability of the witnesses, I have no hesitation in preferring the version given by the Plaintiff, Mr Ng and Mr Chan, the Third Party's witnesses as opposed to the version given by Mr Cheung.

6. In terms of overall probability of their different versions, it seems to me that overwhelmingly, the case of the Third Party is far more probable, and likely to be true. The past history shows that Mr Ng always went to the various control panels to ensure whenever he had to work on the pumps in various terminals that they were switched off. Total power to the pumps was disconnected in his presence even though the disconnections were basically done by Mr Cheung. So it shows the sort of careful person Mr Ng was at all times and this is consistent with the precaution of someone who was going to do dangerous work to make sure that he was working under circumstances of maximum security.

7. On this particular occasion, I think it is common ground that the control panel was situated within the Marine Office premises and the access to the switch room where the control panel was situated was restricted. In fact, only the Marine Office had the key of that room. Certainly, it is common ground that Mr Ng did not go to that control panel to ensure that it was switched off. So reliance had to be placed by Mr Ng on Mr Cheung. The question was whether Mr Ng took a chance, thinking that he had, as Mr Lim put it, identified correctly the right pump and therefore contrary to his previous practice did not insist on all power being switched off. I do not think that was the case. I believe Mr Ng did the best he could in the circumstances, that is to say, since he could not go to the control panel, he had to rely on someone else and that someone else was someone he got to know quite well over the last six years and that engineer, Mr Cheung, repeatedly told him "yes, it is off", and it was only after such reassurances that he proceeded to do the dangerous work.

8. I have therefore no doubt that the Defendant's case must fail and the indemnities sought by the Third Party in their prayer, at pages 25 and 26 should be ordered. The Defendant's claims against the Third Party must be dismissed with costs. As to the Third Party's indemnities, I make an order for :

(1) an indemnity in the sum of $347,057 under Prayer 1;

(2) an indemnity in the sum of $8,080 being the costs and disbursement in relation to the Employees' Compensation under Prayer 2;

(3) interest on the above 2 indemnity sums should be at the rate of 2% above prime, from 3 November 1999 up to the date of judgment; and

(4) costs of the Third Party's proceedings must also go to the Third Party.