NG SAI SO AND ANOTHER v. SUM WING TRANSPORTATION CO (a firm)

1986, No. A5347

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff is the mother of the deceased who died on 31st October 1984 as a result of an accident at work on that day. She brings her claim under the Fatal Accidents Ordinance. The essence of her claim is that the defendant failed to provide or secure a safe system of work.

2. The deceased had, at the time of his death, been employed by the defendant for about 18 months as a transportation worker on a barge. Part of the duties of the deceased was the loading and unloading of containers on the defendant's barge. In carrying out that duty, the deceased worked with two other employees of the defendant, Ng Kwok Kei who operated the winch and derrick on the barge, and Chan To Wah who helped the deceased to secure the containers to a sling suspended from the derrick.

3. The plaintiff's case depended largely on the evidence of Mr. Ng and Mr. Chan. The plaintiff or her solicitors were unable to trace either witness and therefore sought to rely upon evidence given by them at a formal inquest (the Coroner's notes were an agreed document) and witness' statements given by them to the police. As to those statements a hearsay notice had been served and counter-notice given. There was considerable argument about this on the first morning. Suffice it to say that, although I found that the plaintiff had not satisfied me on the balance of probabilities that a case of reasonable diligence had been made out for the purpose of Order 38 rule 25, in all the circumstances, I felt it just to exercise my discretion in the plaintiff's favour. This matter should, of course, have been resolved very much earlier. I make an order nisi that such costs as may have been involved or incurred be the defendant's.

4. The plaintiff herself gave evidence to the effect that the deceased visited home once or twice a month and gave her $1,000.00 per month. She said that the deceased was single and had never mentioned girl friends, had no hobbies beyond smoking a little and playing mahjong occasionally, and had no special expenditure. She confirmed that the deceased had been in the transportation business a long time, since he was 18 or 19.

5. Mr. Wong Kwong, the sole proprietor of the defendant, gave evidence. He also called Mr. Yeung Yiu Chung who at the time of the accident had been in the marine industrial safety section of he Marine Department. Mr. Yeung had prepared a report upon the accident which was an agreed document.

6. Much of the evidence was not in dispute. I am therefore able to make the following findings of fact. Loading and unloading containers from a barge is inherently dangerous, the danger being exacerbated by any movement of the sea. The four-link sling used on the defendant's barge to lift containers is a widely adopted practice in the industry, a practice which is tolerated but not approved by the Marine Department because of its potential hazard.

7. In order to line up and guide a suspended container into its allotted space on a barge, workers generally assist by pushing the container into position. This practice was adopted on the defendant's barge by the deceased and Mr. Chan.

8. The defendant had not through Mr. Wong or anyone else given the deceased or his fellow workers any instructions or guidance on the loading and unloading of containers beyond the occasional stricture to "be careful". The deceased and his fellow workers had evolved, as a result of their own experience in the transportation industry, their own working method. The deceased and Mr. Chan would affix the sling to the top of the container to be lifted. One of them would then signal Mr. Ng to lift the container, Mr. Ng would allow about 30 seconds before starting to lift. In the meantime, the deceased and Mr. Chan would either step to safety on the top of adjoining containers, or climb or jump down from the container on which they were working. After Mr. Ng had begun to lift the container, they would help to guide the container into its proper place.

9. The defendant provided safety helmets and encouraged its workers to wear them. On the day of the accident, the deceased was not wearing a helmet. The absence of a helmet did not materially affect the injuries which the deceased received. That none of the workers were apparently wearing helmets is, however, indicative of the interest, or perhaps lack thereof, which Mr. Wong took in the safety of his employees.

10. On the morning of 30th October 1984, the deceased, Mr. Chan and Mr. Ng were working containers on the barge. Three containers were successfully off-loaded. There remained in the hold of the barge two rows of containers stacked three deep and a further row at the forward end of the hold stacked two deep, except for the extreme port side where there were as yet no containers. A 20 foot container was in position across the tops of the containers in the forward row and abutting the containers in the second row so that the top of this container was level with the tops of the containers in the second row. This container was to be lifted, turned and lowered into he space on the port side of the forward row. The deceased and Mr. Chan attached the sling to the top of this container. The deceased signalled Mr. Ng that it was in order to lift. The deceased and Mr. Chan stepped to safety on the top of containers in the second row. After a pause, Mr. Ng commenced to lift the container.

11. There was a bang as though two containers had banged together. Mr. Chan looked round but could not see the deceased. He then found the deceased sitting on top of the containers in the forward row in the space between the container which was being lifted and the containers in the second row. The deceased was conscious but dazed with blood coming from his nostrils. He was taken to hospital where he died from severe crushing injuries to his head. It is clear, and I so find, that these injuries were caused by him being trapped between the moving and a stationary container.

12. The crucial question is why the deceased was in what has been described as the "confined space" between the container which was being lifted and the containers in the second row. I take into account the practice in the industry that workers help to guide containers into position. I also take into account the evidence of Mr. Chan making every allowance for the fact that this has not been tested by cross-examination. In his evidence at the inquest, Mr. Chan said "I intended to go to the hold and expected the deceased to do the same, to guide the container into the hold."

13. I am satisfied and I so find that the deceased climbed or jumped down to the lower level of he forward row of containers as soon as there was space to do so between the container being lifted and the containers of the second row in order to start guiding the container into position. I reject any suggestion that he slipped or tripped from the container where he was standing or that he was somehow dislodged by the container which was being lifted.

14. In his evidence, Mr. Wong expressed his concern for the safety of his employees and explained how he expected them to work. He said that they should not get into what he called "dead pace", that is a confined area in which it is not possible to retreat from a swinging container, as opposed to a "live space" where an employee can safely stand because he can retreat if necessary, and where the winch operator is able to see him. Mr. Wong said that if he found one of his employees in a dead space he would no longer employ him.

15. As I have already said, Mr. Wong, on his own evidence, had given no instructions to his employees beyond warning the deceased to be careful on one or two occasions, occasions when the deceased was in a live space and not a dead one. I am satisfied that, even if he did not actively encourage it, Mr. Wong was aware that the workers were in the practice of getting into dead spaces in order to help guide containers being lifted, and that he countenanced or acquiesced in this practice.

16. It is trite law that an employer is under a duty to take reasonable care for the safety of his employees in the course of their employment. This duty includes the method and conduct of work. An employer must take all reasonable steps to avoid risk to his employees.

17. For the defendant, Mr. Yau urged that the situation was comparable to that in Wilson v. Tvneside Window Cleaning Co. (1958) 2 QB 110 where the Court of Appeal were dealing with a plaintiff, a very experienced window cleaner, who had fallen from a ladder when a handle by which he was supporting himself gave way. It had been contended that the employer should have issued warnings in writing and orally from time to time against the dangers of window cleaning. The judge and the Court of Appeal rejected this, the Court of appeal saying that when the workman was so experienced, and the danger was so patent, the issue or repetition of warnings would be likely to do more harm than good. Mr. Yau said that the deceased was to the knowledge of the defendant experienced in the transportation business, and the dangers of handling containers obvious. Accordingly, there was no point in the defendant issuing warnings or giving other instructions to its employees.

18. I reject that submission. There is clearly a difference between a window cleaner who essentially works on his own in circumstances where he can perceive the dangers and take such precautions as are necessary, and workers involved in loading and unloading containers from a barge who are part of a team who must have some form of overall direction or supervision if the containers are to be moved without mishap. It is clear to me that the defendant should have laid own some form of procedure or code of conduct which he should have brought to the attention of his employees, however experienced they might be upon joining the company, and on which the employees should be reminded from time to time. Such a procedure or code of conduct should start with a vigorous insistence on all employees wearing safety helmets. It should ensure a clear and easily understood system of signals. Hand signals are perfectly adequate provided all employees are aware of them although the use of a whistle might be preferable. Regardless of the signals, however, the winch operator should not begin to lift and manoeuvre a container unless he can see the other members of the team and ensure that they are in positions of safety. Finally, perhaps, employees should be instructed not to approach a suspended container until it has obtained a degree of ability, and then only from a direction in which they can retreat to safety if the need arises.

19. Manifestly the defendant not only did none of the things but had no system whatsoever. The defendant was clearly in breach of its common law duty to the deceased and liable to the plaintiff.

20. The deceased, however, clearly courted a danger by taking the course which he did. Was e therefore in any way contributorily neglient? For the plaintiff, Mr. Wong tried to persuade me that there was no contribution on the part of the deceased. He referred me to Barcock v. Brighton Corporation (1949) 1 KB 339 where at page 344, Hilbery, J. said:-

"I ask myself, was this man in the circumstances guilty of contributory negligence because he did not break away from that system and devise some other for himself I find myself-incapable of so holding. I think, as a matter of justice and common sense, and trying to place myself in the position of the plaintiff, that I should not have considered myself wanting in reasonable care because I accepted such risk as there seemed to be in doing the work in the way in which I had always seen it done."

21. In Harris v. Brights Asphalt Contractors Ltd. (1953) 1 QB 617, Slade, J. said at page 629:-

"I am satisfied that the risk which the plaintiff ran was one which employee after employee knowingly, not voluntarily but knowingly, runs; in other words, a risk which s imposed on him by the system of working which is adopted by his employers and to which he does not demur. I am fully alive to the fact that an employee is also under a duty to his employer to take reasonable precautions for his own safety; but I do say that when the failure to do so consists of not demurring to a risk which his employers have imposed on him, the court ought not to be astute in finding contributory negligence. Using the best judgment which I can on the facts and the evidence in this case, I find as a fact that the plaintiff was not guilty of contributory negligence."

22. I have not been able to find that the defendant actively encouraged or insisted on the deceased, or any other employees, behaving in this manner. At most, as I have said, I find that the defendant did not remonstrate with its employees upon whose experience it relied. But what the deceased did was foolhardy in the extreme; he took an almost unbelievable risk. In the circumstances, I find that the deceased did contribute, and I put the contribution at 40%.

23. As to quantum, apart from the question of contribution, the parties are divided upon only two issues. First, the percentage of free balance. Mr. Yau contended that the plaintiff's evidence is too scanty and that the conventional figure of 55% should be awarded. It was Mr. Wong's argument that the evidence is far from scanty. The deceased's earnings, his habits, his contribution to his family and his savings of nearly $20,000.00 are all well-known. The free balance should therefore be 70%.

24. The deceased was a man aged 31, of frugal habit. He appears to have had no particular vices or virtues. I am satisfied that he appropriate free balance is 70%.

25. The other issue is whether two years' interest should be disallowed in relation to the period between the date of the writ and date of judgment. Mr. Yau contended that the plaintiff did not prosecute the action with reasonable diligence and pointed to a number of periods of delay which taken together total some two years. He said it is not right that the defendant should have to pay interest in relation to this period. In my judgment, the only period which can properly be attacked is that between 8th July 1988 and 10th July 1989. The defendant had asked the plaintiff not to set the action down for trial because it was taking advice on evidence. After an exchange of correspondence, on 27th June 1988 the plaintiff agreed to wait until 8th July, but indicated she would proceed to set the action down without further notice after that date. Thereafter, nothing occurred until the plaintiff gave notice of intention to proceed on 10th July 1989. Apart from pointing out that, at least initially, the plaintiff was holding off at the defendant's request, no explanation , has been advanced to me for what is manifestly inexcusable and inordinate delay. Like Hunter, J. (as he then was) in Chim Kwan Tai & Another v. Lee Fung Electronic Factory & Others (1987) HKLR 1, I agree that the defendant should not have to pay interest in relation to that period.

26. Damages are therefore as follows:

Special Damages

General Damages

27. The total award is $587,015.00.      Less 40% = $352,209.

28. There will be interest at 2% on the award for loss of expectation of life from the date of the writ to the date of judgment, and at 5% on loss of earnings and funeral expenses from the date of death to the date of judgment. Those periods to be reduced by one year.

29. There will be judgment for the plaintiff accordingly, together with costs.