YIP KING LEUNG v. CHINA INSPECTION CO LTD AND OTHERS

HCPI 1019/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.1019 OF 2001

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J U D G M E N T

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1. The plaintiff claims damages for personal injuries suffered by him resulting from burns sustained by him in the course of his employment as a result of an explosion which occurred while he was inspecting goods contained in a container lorry at an inspection yard on 16 December 1998.

2. The 1st defendant is sued as the employer of the plaintiff and the occupier of the yard. The 2nd defendant is sued as the owner and driver of the lorry and the carrier of the goods in the container. The 3rd defendant is sued as the owner of the goods being transported and the importer of such goods.

3. The goods involved are polystyrene beads which is known to contain pentane, a volatile and inflammable substance. One of the purposes of the inspection is to ascertain whether the goods are new or old, depending on which, a different amount of import tax will be attracted in Mainland China. Pentane is a Category 5 Class 1 substance under the Dangerous Goods (Application and Exemption) Regulations, Cap. 295. However, the actual goods themselves, being polystyrene beads, are exempted from licensing in accordance with Category 9A of the Schedule thereto.

4. These goods came from Holland and were transported to Hong Kong in container by sea. The container was picked up by the 2nd defendant by container lorry at the Kwai Chung container terminal on the instructions of the 3rd defendant and carried to the 1st defendant's yard at Kwu Tung in the New Territories for the inspection before being transported by the same container lorry across the border into Mainland China.

5. It was during such inspection at the 1st defendant's yard that the explosion occurred.

6. There is no dispute that when polystyrene beads are being examined to determine whether they are new or used, very often a visual inspection can suffice to make that determination. However, there are times when a visual inspection cannot be determinative of that matter. In such instances, there will need to be a burn test whereby some sample of the beads will need to be put under a flame to see how much the beads expand in order to determine whether the beads are new or used ones.

7. There is also no dispute that one of the cause of the explosion was due to the accumulation of a flammable mixture inside the container as a result of release of pentane during the entire process of transportation of the goods in the container.

8. One major factual dispute in this case is the source of the ignition.

9. On the one hand, it is the plaintiff's case that the explosion occurred when he was in the process of taking some sample beads out from near the bottom of one of the carton by using a sampling tool with the intention of taking such samples of the beads into the inspection office for a supervisor to conduct a burn test to determine if the goods in this case is old or new. The plaintiff denies lighting any naked flame at the yard near to the container in question.

10. On the other hand, the 2nd defendant's case is that the 2nd defendant who was standing slightly behind the plaintiff at the time of the explosion, saw the plaintiff apply a naked flame from a cigarette lighter whilst in the yard just at the back of the container lorry to the sample beads held in the sampling tool which he had obtained from one of the cartons and at that instant the explosion occurred.

11. Apart from this major factual dispute, there are two other areas of factual dispute. Those two other areas involve, firstly, the training provided to the plaintiff by the 1st defendant and secondly, the preventive measures adopted by the 1st defendant at the inspection yard, in particular the dampening of such goods as a condition to their being inspected.

12. In view of the fact that these three areas of factual disputes involve different evidence from different witnesses, I shall compartmentalize the evidence relating to each issue before assessing the quality and reliability of the evidence from the various witness and making findings as to the disputed facts.

The evidence relating to the source of the ignition

13. The evidence from the plaintiff was that on the day of the accident, he had collected documents relating to the inspection of the 2nd defendant's container truck from the 1st defendant's office. From those documents he realized that the cargo carried in the container brought by the 2nd defendant was expandable polystyrene beads. The 2nd defendant's truck was parked in the open yard opposite to the office.

14. When he approached the 2nd defendant's truck, the right side back door of the container was opened. He saw two hexagon shaped cartons inside the container. There was a gap of about one foot between the top of the carton and the ceiling of the container.

15. A transportation worker, Leung Kuen Kan, brought along an aluminum ladder. Using that ladder the plaintiff went up to the top of the hexagon carton which was just inside the door of the container and took out some beads from the top part of the carton. He was satisfied upon a visual inspection that they were used material.

16. The plaintiff then descended from the ladder. From the bottom part of the carton, the plaintiff used a sampling tool provided to him by the 1st defendant to jab into the bottom part of the carton and by so doing, he was able to obtain some sample beads from inside the carton. It was his intention to take these sample beads into the office for the supervisors there to conduct a burn test for those samples. As he was putting those sample beads onto his clipboard to take them into the office, suddenly an explosion occurred and he lost consciousness.

17. The 2nd defendant also gave evidence as to the occurrence of this explosion. His evidence does not differ from that of the plaintiff in any material way as to the first part of the plaintiff's inspection when the plaintiff mounted the ladder to inspect the beads at the top part of the cartons carried in the container. The only difference between their evidence relating to when the plaintiff went up the ladder is that the plaintiff says he was holding the sampling tool in his right hand and clipboard in his left hand when he went up the ladder while the 2nd defendant says the plaintiff was not holding anything when he went up the ladder, having placed the clipboard and sampling tool on the ground before going up the ladder. Such differences in their evidence are, in my view, neither significant nor material to the disputed issue which I have to decide.

18. The main and important difference in their respective evidence relates only to the second part of that inspection. According to the 2nd defendant, when the plaintiff descended from the ladder, the 2nd defendant was about four to five feet behind the plaintiff. The plaintiff then slightly bend down and used the sampling tool to jab into the bottom part of that carton at the back of the container and thereby obtained some polystyrene beads from the inside of the carton. Those sample of polystyrene beads remained on the metal blade of the sampling tool. The plaintiff then squatted down, held the sampling tool in his left hand and with his right hand he took a cigarette lighter out of his right trouser pocket and lit it underneath the metal blade of the sampling tool with the beads on it. Just as he lit the lighter, there was an explosion. The 2nd defendant said he was engulfed by flames and was thrown back seven to eight feet.

19. The 2nd defendant then ran out to the main entrance of the yard where he saw the manager of the Centre, a Mr Chan who asked him what happened. The 2nd defendant answered saying "he lit a flame" meaning the plaintiff. On hearing this the manager cursed and said that he had repeatedly told them not to light a flame.

20. This last bit of the evidence of the 2nd defendant was confirmed by Chan Jian Lin, the manager of the Centre, when at the very last part of his cross-examination by the plaintiff's counsel, Chan's evidence was that when the explosion occurred, he ran out of the office and saw the 2nd defendant who told him that he saw (the plaintiff) light a flame to burn the beads. Chan then asked Leung if the plaintiff had lit a flame but Leung answered saying that he did not see as he was doing something else.

Evidence relating to the dampening of polystyrene beads

21. Dampening of polystyrene beads is one of the common precautions taken when this kind of goods are transported. A fortiori therefore this should also be one of the standard precaution to be taken when such goods are inspected at the inspection centre of the 1st defendant. That this is or should be a standard precaution is not disputed by the 1st defendant.

22. It is, however, common ground that when this container load of polystyrene beads were taken into the inspection yard of the 1st defendant on 16 December 1998 the polystyrene beads were not dampened before the plaintiff commenced his inspection of them.

23. It is the plaintiff's case that at one time long before the date of this explosion, there was a requirement by the 1st defendant that such goods had to be dampened before any inspection of them would be carried out at the 1st defendant's inspection yard. However, for a long time before the 16 December 1998, such a rule had not been enforced by the 1st defendant because many of the drivers carrying such goods complained of the requirement to dampen the goods before inspection because by dampening the goods, it added to the weight of the goods and may cause the truck to be overloaded.

24. It is, therefore, the plaintiff's case that on the 16 December 1998, such a rule was no more applicable at the 1st defendant's inspection centre and that was why he took on the inspection of these goods without ascertaining that the goods had been properly dampened before the inspection commenced.

25. The plaintiff's evidence was that he had never seen any notice relating to such a requirement posted at the yard of the 1st defendant before this explosion took place.

26. The stance of the 1st defendant in this matter is that there had all along been notices posted up in various parts of the inspection yards notifying drivers that polystyrene beads when carried into the inspection yard of the 1st defendant had to be dampened before any inspection would be carried out. This was the evidence of both Chan Jian Lin and Lam Siao Jin given on behalf of the 1st defendant.

27. The 1st defendant produced into evidence one such notice which had the date 23 February 1998. The notice required polystyrene beads to be in a dampened state before inspection will be carried out. It was also stated in the notice that such requirement will come into effect as on 1 March 1998.

28. It follows therefore that the 1st defendant blames the plaintiff for failing to ensure that the polystyrene beads carried in the container truck of the 2nd defendant had been properly dampened before commencing his inspection of those goods on the day of the explosion.

29. The 2nd defendant's evidence on this matter is that he never knew nor was he ever told by anyone or any notice that required him to dampen polystyrene beads carried in his container truck before they would be inspected at the yard of the 1st defendant. He had never seen any such notice at the yard of the 1st defendant before the 16 December 1998. However, after that accident, he did notice such notices being posted up in the inspection yard of the 1st defendant and such a requirement was insisted upon by the 1st defendant after the subject explosion before such goods would be inspected by the 1st defendant.

30. The 3rd defendant's manager, Chan Kwai Ho, also gave evidence that he went to the 1st defendant's inspection yard where this explosion occurred in the afternoon of the same day as the explosion, after the explosion had occurred. Prior to the day of the explosion, he had also been to the 1st defendant's inspection yard on five or six occasions. On all those occasions when he was at the 1st defendant's inspection yard, he did not see any notice requiring the dampening of polystyrene beads as a condition to such goods being inspected by the 1st defendant. Nor did he see any other notice relating to any other precautions to be taken by drivers.

31. No such notice had ever been sent by the 1st defendant to his company nor had he received any telephone calls from the 1st defendant as to such dampening requirement before the explosion occurred.

32. However, after the explosion had taken place, he then learned from drivers employed by the 3rd defendant to carry goods to the 1st defendant's centre for inspection, that the 1st defendant had imposed such a requirement for dampening of polystyrene beads before any inspection would be carried out.

Training given to the plaintiff

33. The factual dispute pertaining to this issue is only between the plaintiff and the 1st defendant as his employer.

34. The plaintiff's evidence is that prior to joining the 1st defendant he was a container driver for some 20 years and at the time he joined the 1st defendant as an inspector, it was a job that was completely new to him. It is his evidence that the training given to him was merely to ask him to follow one of the inspector by the name of Fong and to merely learn on the job.

35. The plaintiff acknowledges that he was given some sheets of paper with the various products which he had to inspect and some of the properties relating to those products were contained on that sheet. He was also told that he must not light any flame at the yard and also when he was carrying out inspection. He also acknowledged that he knew all the burn tests had to be performed in the office and not in the yard. If he wanted to smoke cigarettes, he could only do so at a designated area behind the office. He was however not told that polystyrene beads would give out flammable vapour and was never told that he should open the container door, when polystyrene were to be inspected, for at least 10 minutes before carrying out the examination.

36. The plaintiff denies that he had ever been told by anyone at the 1st defendant about the Pao On Kui explosion, an incident which happened at a similar inspection yard in China.

37. On the other hand, the evidence from the 1st defendant came from both its witnesses, Chan Jian Lin and Lam Siao Jin.

38. Their evidence was that there was elaborate training given to the plaintiff consisting initially of classroom lessons held in the first week and then practical training conducted by supervisors in the inspection yard.

39. All aspects of safety had been told to newly recruited inspectors including the plaintiff. Thereafter, the inspectors including the plaintiff had to pass a test before they can undertake the job on their own as inspectors. Moreover, the inspectors were at all times told to consult with the supervisors if there was anything which they found any difficulty with.

40. Even when they were qualified to perform the work of inspectors, they were constantly reminded at regular meetings as to safety at the inspection yard and that flames should not be lit during inspections. All the inspectors would have been made aware that polystyrene beads gave off flammable vapour. All burn tests are to be conducted in the office. At one such meeting, mention was made of the Pao On Kui explosion which occurred in a similar inspection yard in Mainland China which was caused when one of the inspectors was smoking while carrying out an inspection.

Assessment of the evidence and findings of fact

41. Of the three main disputed issues of fact outlined above, I have found it difficult to decide on the one concerning how the accident happened, namely, whether I should believe the evidence of the plaintiff that at no time did he light his cigarette lighter or whether I should believe the 2nd defendant that that was in fact done by the plaintiff with the explosion following immediately.

42. It was difficult firstly because the version given by the plaintiff, when it is viewed on its own, has no inherent improbability. In a similar way, neither does the version given by the 2nd defendant. In short each version can stand on its own.

43. Secondly, after hearing all the evidence and cross-examination, there is no major indication to suggest that either the plaintiff or the 2nd defendant are not credible witnesses.

44. What remains therefore is that there are two completely different versions of events from the two of them. One of those two versions cannot be true. Nor is there any room for mistake having been made by either of them.

45. Ultimately on this difficult issue, I have decided that the evidence of the 2nd defendant is to be preferred to that of the plaintiff. Having heard his evidence, I found him to be a very observant person, as for example he could say that it was from the right trouser pocket that the plaintiff took out his lighter. Of course being observant does not mean that he is telling the truth for it would be just as easy to concoct that bit of the evidence. I do note however from the evidence that the plaintiff acknowledges that he is himself a smoker and he never denied that he did not carry a cigarette lighter with him at the time.

46. Moreover, I accept the 2nd defendant's evidence that at the time he did not know that it was prohibited by the 1st defendant to light a naked flame at the inspection yard. When he was asked by the manager of the 1st defendant what had happened he told the manager that (the plaintiff) had lit a flame. In so doing, the 2nd defendant was merely answering a question asked of him by the manager. Nothing suggests that he was accusing or blaming the plaintiff at that time for the explosion. Nor was there any reason for him to do so. A fortiori there was no reason for the 2nd defendant to drum up a false accusation against the plaintiff.

47. Moreover, the short interval between the explosion and what the 2nd defendant said in reply to the manager Chan Jian Lin as to the plaintiff lighting a flame means that there was very little time for the 2nd defendant to concoct such a story. That what was said by the 2nd defendant was in fact said by him to the manager is corroborated by the manager's evidence.

48. For these reasons, I accept the evidence of the 2nd defendant that the plaintiff did light a cigarette lighter under the sampling tool after obtaining some sample polystyrene beads from the bottom part of the carton.

49. In accepting this evidence of the 2nd defendant, I have not failed to take into account that a large part of the cross examination of the 2nd defendant revolved round the fact that in his witness statement, and in the statement which he gave to the investigators soon after the explosion, he made no mention of the first part of the plaintiff's inspection of the polystyrene beads when the plaintiff climbed up the ladder to the top part of the carton in the container. That cross-examination was conducted no doubt with a view to discrediting the reliability and credibility of the 2nd defendant.

50. However, in my view that is immaterial. The plaintiff himself in his evidence told of that first part of his inspection by climbing up the ladder. That it did happen is not in dispute. Whilst it may be a part of the entire picture, it has no relevance to the explosion. Viewed from the point of view of the 2nd defendant, the explosion was related to the lighting of the cigarette lighter which is connected only to the second part of the plaintiff's inspection of those polystyrene beads. No doubt it was for this reason that the 2nd defendant did not attach importance to the first part of the inspection by the plaintiff and therefore did not mention it in those statements including his own witness statement.

51. Moreover, in coming to this finding, I have not lost sight that there is no evidence that the plaintiff had ever, during his entire employment with the 1st defendant, disobeyed the order not to light a flame in the yard or not to conduct a burn test except in the office. However that does not alter my finding that he did light his cigarette lighter on this occasion underneath the sampling tool. I make no speculation as to the reason why he did so on this occasion.

52. The remaining two issues of factual disputes are not as difficult to decide. Having heard all the evidence and cross-examination in this case, I can safely say that the two factual witnesses called by the 1st defendant have lost much of their credibility with me.

53. The main reason for my saying that is due to the fact that they both maintained that there has always been the requirement by the 1st defendant that polystyrene beads transported into the 1st defendant's centre for inspection must be sufficiently dampened before the 1st defendant would carry out the inspection.

54. Neither could give any satisfactory explanation as to why that notice in respect of such requirement was dated 28 February 1998 and not earlier. Nor could they properly say how that requirement was brought to the notice of drivers, transporters or owners prior to 28 February 1998. In this respect Chan Jian Lin went as far as to say that phone calls were made to owners or transporters of such goods to inform them of such a requirement. That I found quite unbelievable. Moreover the fact that the notice expressly states that such requirement is to take effect from 1 March 1998 itself contradicts their evidence.

55. Accordingly, I accept the evidence from the plaintiff, the 2nd defendant and the 3rd defendant that such a notice was not posted up in any part of the inspection yard of the 1st defendant until after this explosion had occurred.

56. The plaintiff had been working at the 1st defendant for quite some time before this accident on 16 December 1998. It may well be, as according to the plaintiff, that at one time there was such a requirement imposed by the 1st defendant to dampen polystyrene beads, but such a requirement had not been enforced at the 1st defendant's centre for a long time before this explosion because of the complaints by drivers that dampening the beads increased the laden weight of their trucks. This is not a matter which I need to make a specific finding on. It is sufficient for present purpose that such a notice was not posted up at the time of this explosion nor was there any such requirement being enforced by the 1st defendant on the day of the explosion. This sufficiently explains why the inspection of the 2nd defendant containing the polystyrene beads in this case was proceeded with without those goods being first dampened.

57. Finally, I turn to deal with the training being given to the plaintiff by the 1st defendant.

58. From the totality of the evidence in this case, I have little hesitation in coming to the conclusion that the 1st defendant could and should have taken very much more steps to ensure safety but did not do so. I do not say that the 1st defendant took no steps in respect of safety. I accept that all their employees had been told not to smoke cigarettes or to light a naked flame when in the inspection yard. There was also a designated area for smoking, away from the inspection area. There were posters to warn drivers to switch off their engines when their vehicles are parked in the inspection areas.

59. However, there are also other areas which could have been improved upon. The evidence from Lam Siao Jin was that he did not teach the plaintiff to ensure that a container door was opened and kept opened for at least 10 minutes before inspection so as to allow toxic or flammable vapour to be given an opportunity to dissipate. The requirement of dampening polystyrene beads before inspection was not enforced until after this explosion.

60. Also of concern is that although the employees handbook produced by the 1st defendant makes reference to safety in many parts of it, each of those references are in a general and vague way with no specifics or particulars contained. It leaves one with the impression that it was only lip service that was paid to the safety aspect, but the nitty-gritty of it was left pretty much to the individual employee apart from the main requirements told to them. To that extent the 1st defendant was unreasonably lax on the safety aspect and training.

61. For these reasons, I find that it is more likely than not that the plaintiff's evidence that he had only been told that polystyrene beads may give off toxic vapour but was never told that it could give off flammable vapour is true.

62. After hearing all the evidence one is left with the impression that the training given by the 1st defendant to the plaintiff focused very much more on his inspection and assessment of the goods being inspected rather than on the safety aspect which is an important part of his work in view of the types of goods that are being inspected at the 1st defendant's centre.

63. Accordingly, I have little difficulty accepting the evidence of the plaintiff over that of the 1st defendant's witnesses where differences appear between their evidence.

Finding of facts

64. I find the following facts :

(1) There was standing instructions and training by the 1st defendant to the plaintiff that the plaintiff was not to light any naked flame either during inspection or in the inspection yard.

(2) The plaintiff was not told by the 1st defendant or anyone on its behalf that polystyrene beads emit flammable vapour either during the plaintiff's training or in his work.

(3) The 1st defendant had never instructed the plaintiff that doors of containers carrying polystyrene beads should be left open for a period of time to allow flammable vapour collected inside to dissipate before any inspection of such containers be carried out.

(4) There was no requirement enforced by the 1st defendant on 16 December 1998, and had not been for a substantial period of time prior to that date, that polystyrene beads carried into the 1st defendant's centre for inspection had to be sufficiently dampened before any inspection would be carried out by the 1st defendant.

(5) On 16 December at about 11.30 a.m. when the plaintiff examined the polystyrene beads carried in cartons in the container carried on the 2nd defendant's container truck, the plaintiff did light a cigarette lighter underneath the sampling tool after having obtained some beads with the sampling tool from the bottom part of the carton.

(6) The flame of the cigarette lighter was the immediate cause of the explosion which followed.

(7) The other cause of the explosion was due to the accumulation of pentane gas inside the container which was emitted from the polystyrene beads and also due to the lack of other precautions taken, namely, the failure to dampen the beads before the inspection, the failure to open both doors of the container for a sufficient period of time to allow the accumulated pentane gas to dissipate from inside the container.

(8) It was only after this explosion that the 1st defendant implemented the requirement to dampen polystyrene beads as a condition to inspecting of such goods by putting up notices to a like effect at the inspection yard of the 1st defendant.

Expert evidence on liability

65. Both the plaintiff and the defendants have adduced expert evidence in relation to whether or not it was possible from the jabbing of the sampling tool into the carton and its withdrawal to have caused sparks or static electricity which in turn caused the explosion in this case. This evidence would have been of paramount importance had I found that the plaintiff did not light his cigarette lighter as alleged by the 2nd defendant.

66. However, in the light of my finding that the plaintiff did light his lighter and the further finding that it was that which caused the explosion, the expert evidence adduced by the parties becomes irrelevant in the matter.

Liability of the 1st defendant

67. The 1st defendant was the employer of the plaintiff at the time of the accident and therefore was under a non-delegable duty to the plaintiff to provide the plaintiff with a safe system and safe place of work.

68. Upon the findings made by me, the 1st defendant was in breach of that duty to the plaintiff firstly, by failing to require container trucks carrying polystyrene beads to be dampened before inspection on the day of the accident. Secondly, it failed to inform the plaintiff that the doors of containers carrying such types of goods should have their doors opened for at least 10 minutes to allow for flammable vapour to dissipate before the inspection inside the container should be carried out. In the same vein, it failed to properly and reasonably warn the plaintiff that polystyrene beads give off flammable vapour.

69. In my view, these are all failings of the 1st defendant despite the fact that it had warned the plaintiff not to light a naked flame in the inspection yard and had prohibited doing so. It was reasonable that the plaintiff should also have been told the reason for such prohibition. If he had been told of the reason, then at least the plaintiff would have realized the danger of lighting a naked flame so soon after jabbing a hole at the bottom part of the carton which might have released pent up flammable vapour that may have collected in the carton during transit of these goods.

70. The 1st defendant was thereby negligent towards the plaintiff by failing to adequately and reasonably warn the plaintiff of all the dangers associated with polystyrene beads. It also failed to provide a safe system of work to the plaintiff which resulted in this accident.

71. Accordingly I find the 1st defendant negligent and therefore liable to the plaintiff.

Liability of the 2nd defendant

72. I accept the evidence of the 2nd defendant that when he was engaged by the 3rd defendant he was told that his services was required to transport 'plastic waste material' by the 3rd defendant. So much was confirmed by the manager of the 3rd defendant.

73. Not only was the 2nd defendant not told that the goods he was asked to transport was polystyrene beads, he was not told of any requirement to dampen those goods nor, for that matter, any other safety precaution which he should take by the 3rd defendant.

74. The 2nd defendant did ask the 3rd defendant whether a dangerous goods license was required for the transportation of such goods adding that if it was he could not take on the job as his vehicle did not possess any such dangerous goods license. However, he was assured by the 3rd defendant that no such special license was called for in the transportation of the goods (which is in fact so since polystyrene beads are not per se dangerous goods and are exempted from licensing in accordance with Category 9A of the Schedule to the Dangerous (Application and Exemption) Regulations Cap. 295). It was on that basis that the 2nd defendant took on the job.

75. The 2nd defendant's duty towards the plaintiff is not a strict one. Very much depended on his state of knowledge in determining whether the failure of the 2nd defendant to dampen the goods or failing to take any other precaution was reasonable or not.

76. With the state of the knowledge that was given to the 2nd defendant, I cannot see how it can be said that the 2nd defendant was unreasonable in failing to take any precautions for the polystyrene beads transported by him.

77. I find the 2nd defendant not negligent to the plaintiff in this matter.

Liability of the 3rd defendant

78. The 3rd defendant is the owner of the polystyrene beads. It was the transporter who engaged the 2nd defendant to carry out the transportation work on its behalf.

79. Any failure on the part of the 2nd defendant to take the necessary precautions goes back directly to the 3rd defendant for failing to give the necessary and requisite information and warning to the 2nd defendant, its agent in the transportation of the goods.

80. The cross-examination of the 3rd defendant's manager by counsel for the plaintiff highlights the fact that the 3rd defendant, as the owner of the goods, was woefully unaware of many things. As for instance he did not know what "reduced gas" on the documentation relating to these goods meant and took no steps to find out.

81. What that shows is that inadequate steps were taken by the 3rd defendant as the importer and owner of the goods to ensure proper and reasonable safety relating to these goods which the 3rd defendant knew contained pentane gas. Inadequate information was also provided to the 2nd defendant by the 3rd defendant so that the proper precautions could be taken in their transportation by the 2nd defendant. Such failure fall upon the 3rd defendant since they are the only party who could and should have supplied that information to the 2nd defendant.

82. The 3rd defendant was clearly negligent to the plaintiff.

Contributory negligence

83. Upon the findings made above, there can be no question but that the plaintiff was himself contributorily negligent in the matter in lighting a naked flame during the inspection just behind the opened container. In so doing, the plaintiff had clearly disregarded standing orders given to him by the 1st defendant not to light any naked flame in the yard.

84. That action by the plaintiff in lighting the naked flame must be the major and immediate cause of the explosion itself.

85. In all the circumstances of this case, I find the plaintiff 60% contributorily negligent.

Apportionment of liability as between defendants

86. All defendants in this matter have served contribution notices inter se. Having found the 1st and 3rd defendants to be negligent in this matter, my task is now to apportion the liability as between the 1st and 3rd defendants.

87. The 1st defendant is liable to the plaintiff qua employer. The 3rd defendant, as the owner and transporter of the goods failed to take reasonable steps to ensure safety of those goods in their transportation, in particular failing to warn the 2nd defendant of such risks or to properly instruct the 2nd defendant to take those precautions.

88. The failings of the 3rd defendant are much more general. The precautions that should have been reasonably taken by the 3rd defendant relates generally to such goods in the course of their transit and transportation. On the other hand, the failings of the 1st defendant are much more directly connected to the inspection of such goods since it is the 1st defendant who runs and manages the inspection centre.

89. Taking into account all the circumstances of the case detailed above, I am of the view that the remaining 40% liability of the defendants should be apportioned between the 1st defendant and 3rd defendant with the 1st defendant shouldering 25% and the 3rd defendant 15%. Needless to say this apportionment does not affect the plaintiff in any way and it is an apportionment only as between the 1st and 3rd defendants inter se.

Conclusion

90. There will be judgment for the plaintiff as to 40% liability against the 1st and 3rd defendants jointly and severally with damages to be assessed. The plaintiff's claim against the 2nd defendant is dismissed.

Costs

91. There will be a cost order nisi that :

(a) the 1st and 3rd defendants pay the plaintiff the costs of this action;

(b) the plaintiff pays to the 2nd defendant his costs of defending the plaintiff's claim against him; and

(c) the plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.