MEHMOOD KHALID v. MILLION HARVEST WHARVES & LOGISTICS LTD AND OTHERS

CACV 303/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 303 OF 2007

(ON APPEAL FROM HCPI NO. 401 OF 2006)

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JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from a judgment of Saunders J given on 20 June 2007.  The matter before the judge was a claim for personal injuries caused to the plaintiff whilst in the course of his employment working on containers at Tsing Yi.  The judge held that the first defendant was liable to the plaintiff in the sum of $1,413,120 but, in the usual way, he had to give credit for sums received under the Employment Compensation Ordinance.  There was also the matter of interest.

2.  The judge considered that the plaintiff had had valid reasons for bringing the action against the second defendant as well as against the first defendant although, in the event, the action against the second defendant failed.  In those circumstances the judge made an order that the first defendant should be responsible for the second defendant’s costs.

3.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

4.  The plaintiff was employed by the first defendant as a “slinger” in the stevedoring operation at Tsing Yi.  Containers were being loaded on to a vessel, referred to as a Dumb Steel Lighter, belonging to the first defendant.  The crane to be used was mounted on that vessel.  The crane would lift the containers by means of four slings, which would be attached to the four corners of the container.  The plaintiff and his fellow worker were responsible for attaching the slings to the corners.  Each of them would be responsible for two slings, the hooks of which would be attached at the respective corners at each end of the container.

5.  The plaintiff was standing on a platform which was at the same level as the top of the container.  The crane, which was operated by the second defendant, would lower the slings so that the hooks were approximately at chest height of the plaintiff and his fellow worker.  At that point the plaintiff would go on to the top of the container, take hold of the two relevant hooks and attach them.  After that, the slingers would retreat from the top of the container and the container would be moved away.

6.  On 14 June 2004, the plaintiff reached for the hooks which were chest height whilst he was standing on the platform but the glove of his right hand was caught by one of the hooks.  Before he could extricate himself he was lifted some 3 to 6 feet into the air.  Then he was swung away from the container, his glove tore off and he fell to the ground some 13 to 16 feet.  As a result of the fall his left wrist was injured.  He had a displaced intra articular fracture of the left radius and a fracture of the left ulnar styloid.

7.  The evidence at the trial established that it was the common practice in Hong Kong that the slingers would catch the hooks when they were suspended at approximately chest height.  The evidence from both the plaintiff and the second defendant was that at the vocational training establishments the trainees were taught that the hooks should be caught when they were at chest height.  The second defendant said in evidence that if a big wave came when the hook had been caught at that height the hook could be “thrown away” and the slinger could run.  He went on to say that if the hook was on top of the container when a wave hit the vessel, the sling would be liable to swirl around the slinger.

8.  Despite this the judge came to the conclusion that the standard practice in Hong Kong was unsafe.  He did so having taken into consideration the heavy onus that was placed upon a person seeking to show that a standard practice, common in the industry, was unsafe: see for example General Cleaning Contractors Limited v Christmas [1953] AC 180.  One of the matters which the judge took into account was the “Safety Guide for Shipboard Container Handling” published by the Marine Industrial Safety Section of the Marine Department.  It can also be noted that in the report of the accident prepared by the Marine Department it was stated that “The slingers should wait for the hook slings to be fully lowered on container top until they are steady, before approaching to grab the slings.”

9.  Mr Kwok, who appeared on behalf of the first defendant, submitted that the judge was not entitled to make the finding that the system of work was unsafe.

10.  In my view the judge was entitled to come to the conclusion that the system of work, which entailed catching the slings when they were at chest height, was unsafe.  That is not to say that danger could not arise even if the hooks were lowered onto the top of the container.  Nevertheless, that would appear to be the less hazardous of the options.  The matter was clearly raised in the course of opening the case and, indeed, it had been part of the first defendant’s case that there had been contributory negligence on the part of the plaintiff because he had attempted to catch the hooks whilst they will were in midair and before they had come to rest on the top of the container.

11.  The question arose as to whether the relative movement of the hooks in relation to the top of the container had been caused by the second defendant operating the crane or it had been caused by outside forces, most probably waves from a passing tug boat.  The first defendant’s case at the trial had been that the second defendant had been at fault in the manner in which the crane had been operated.  On the other hand, the second defendant had been adamant that he had not been responsible for the sudden movement of the crane and thus of the hooks.  His case had always been that the vessel had suddenly swung outwards “with significant range” because of the waves: see the statement made to the Marine Industrial Safety Section of the Marine Department in August 2004.

12.  It is quite clear from the judgment and, indeed, from reading the transcript, that the judge was not favourably impressed with the suggestion that the second defendant had by mistake operated the controls of the crane such that the slings and hooks would rise in the air.  The judge quite clearly was attracted to the evidence of the second defendant that there had been a wash from a passing boat which the second defendant had not seen prior to the accident and that the effect of the wash and waves hitting the Dumb Steel Lighter was to rock the vessel such that the crane swung.

13.  In this respect although the judge made calculations based on a movement of the boom of 124 ft, that appears to have arisen as a result of the closing submissions of counsel on behalf of the second defendant.  I would be cautious as to the advisability of relying too heavily on such calculations since the parameters on which they are based, including the angle of the boom and indeed the height and its position might not have been fully established.

14.  The judge came to the conclusion that on either hypothesis the first defendant was responsible because the system of work which the first defendant had approved and authorised for use gave rise to the danger to the plaintiff whether the lifting of the hooks was caused by a rocking of the Dumb Steel Lighter or by misoperation of the crane.

15.  The judge also held that, although the second defendant had admitted in the pleadings that he was a subcontractor, he was in reality an employee.  In my view the judge was fully justified in coming to that conclusion.  As the judge pointed out, the Dumb Steel Lighter upon which the second defendant was working was owned by the first defendant and originally the second defendant had been an employee.  Although the second defendant was paid a fee of $51,000 per month, out of that he was required to provide two crew members and a cargo hook-man.  Those employees were subject to directions from the first defendant and could be moved by the first defendant without reference to the second defendant.  The first defendant had the right to send the barge upon which the second defendant was working to any seaport on the Mainland and, importantly, the evidence, which the judge accepted, was that the second defendant could not change the system of work without the permission of the first defendant.  As such the judge considered that the second defendant had no real control over the workers whom he hired, nor over the system of work.  Furthermore, the judge took into consideration that the second defendant was entitled to a year end double payment.  In addition there was no suggestion that the second defendant was entitled to work for any other employer: he was in reality an employee of the first defendant.

16.  The major complaint by Mr Kwok of the findings in the judgment was that it was said that the judge had not come to a conclusion as to whether the slings and hooks had risen as a result of the vessel on which the crane was mounted tipping as a result of a sudden wave or whether the second defendant had been at fault on the manner in which he had operated the crane causing the hooks to rise in the air.

17.  In my view, on a fair reading of the judgment, the judge did come to the view that it had not been established that the second defendant had been at fault in the operation of the crane.  It is clear that he was of the view that there was substance in the second defendant’s case that the movement of the crane had been caused by waves from a passing boat.  It was in that context that he was then able to say that on either case he considered that the plaintiff was entitled to succeed.

18.  As already indicated, even if the fault lay with the second defendant’s operation of the crane, on the finding of the judge that the second defendant was an employee of the first defendant, the first defendant would still be vicariously liable in respect of any negligence of the second defendant.  After taking instructions, Mr Kwok stated that if this court upheld the judge’s finding that the second defendant was an employee of the first defendant, the first defendant would not seek any contribution from the second defendant.

19.  There were three matters which were raised in respect of the award of damages.  The first related to whether the judge should have taken into consideration the fact that the plaintiff was in the habit of taking some four to six weeks holiday abroad each year.  In my view, Mr Sakhrani, who appeared on behalf of the plaintiff, was correct in saying that this was a facet of the way in which the judge had assessed the damages.  The assessment of damages had to be the best assessment which the judge could make of the loss to the plaintiff.  In making the assessment the judge had not given the plaintiff the figure of $13,000 per month as his likely present pay had he not suffered his injury.  There was evidence which would have entitled the judge to take that figure as a starting point.  Instead the judge had taken a lower figure of $12,000 per month.  In those circumstances it was understandable that the judge might disregard the period of holiday, despite the fact that in the course of argument in the court below Mr Sakhrani himself had based his calculations on the footing that the plaintiff would be taking unpaid leave.  The plaintiff would in any event have been entitled to some paid holiday.

20.  The next point taken was that the judge should have held that the plaintiff was capable on returning to work to be employed as a driver and he would have earned approximately $10000-$12000 per month.  It was said that the judge was wrong to place the plaintiff’s loss of income on the basis of his actual earnings of $7,500 per month.  In this respect I consider that the judge took all relevant factors into account.   At the end of paragraph 50 of the judgment he said:

“…I am satisfied that Mr Khaled (the plaintiff) has made every effort to find work.  He now works longer hours for less money in a lower paid job, one that is within the scope of his disability.

51.   I am satisfied that he is able to earn $7,500 per month but no more.”

21.  Finally, the point was taken that the judge should not have awarded $100,000 for both loss of earning capacity and loss of leisure opportunity.  The award for loss of earning capacity is one which the court makes on the basis of a plaintiff’s handicap in the market, particularly should he lose his employment in the future.  It takes into account the difficulties that the plaintiff would encounter in finding new employment.  In this respect the judge awarded what was approximately 1 year’s pay.  That is well within the standard range and I would not be disposed to interfere with the judge’s assessment in this respect.

22.  In those circumstances I would dismiss this appeal with an order nisi of costs in favour of the plaintiff.

Hon Le Pichon JA:

23.  I agree.

Hon Suffiad J:

24.  I agree.