TAM KA HO v. NEWOCEAN OIL PRODUCTS COMPANY LTD AND OTHERS

HCPI 1325/2016

[2023] HKCFI 1158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1325 OF 2016

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R E A S O N S    F O R    J U D G M E N T

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1.  The trial of the issue of liability in the present case was held when the solicitors ceased to act for the defendants with leave of the court shortly before the trial, and the defendants also did not appear at the trial. The plaintiff formally proved his case. The circumstances of the case revealed by the uncontested evidence were such that this court had no difficulty in finding total liability against the defendants. Hence the entering of judgment on liability against them for damages to be assessed with costs. These are my reasons.

BACKGROUND

2.  At the material times, the 1^st defendant (“NOPC”) and the 2^nd defendant (“NPC”) carried on the business of sale and distribution of petroleum, gas and oil products. Both were subsidiaries and trading arms of their listed parent company in Hong Kong (“the Parent Company”). Where appropriate, they will be referred to collectively as the defendants below. The Parent Company maintained a fleet of bunker vessels that would sail to the customer vessels within the Hong Kong waters for selling them marine fuel. The Parent Company also maintained a permanent selling point at the waters of Kwai Tsing District where fuel would also be sold to the visiting customer vessels. Majority of the fuel sale was conducted in the former of the two manners described.

3.  The plaintiff (“Tam”) joined NOPC in January 2014 as a stock assistant. As such, he was responsible for documentation work in connection with sale of the petroleum and oil products to foreign vessels visiting Hong Kong. Tam was promoted to the position of Mainland Operation Coordinator in August 2014 when his employer as per his name card changed to NPC. As such, his duties included coordination as well as allocation of human resources and the fleet of vessels of the defendants in their businesses. Occasionally, Tam would still be instructed to carry out some duties of a stock assistant.

4.  On 8 December 2014, Tam was required to conduct documentation work in connection with sale of fuel to the ocean container carrier “NYK HYPERION” (“Hyperion”), which was at the time berthed at a quay on the waters off the Kwai Tsing District, New Territories. Tam was required to do so on board Hyperion. To commute to Hyperion, Tam was arranged to get on board the oil carrier vessel “HOI FAT” (“Hoi Fat”) at the shore of New Praya Road, Kennedy Town, Hong Kong. NPC was the charterer, operator and ship manager of Hoi Fat. At the time, a coxswain, a chief engineer and a sailor were on board Hoi Fat and in control of its operation.

5.  Hoi Fat reached where Hyperion was berthed in about 45 minutes. It was berthed along the freeboard side of Hyperion. The two vessels varied significantly in size. Hoi Fat was a 24-metre long by 8-metre wide vessel while Hyperion was a 353-metre long by 48-metre wide ocean carrier. The vertical height between the decks of the two vessels at the time was about 12 metres[1]. Tam was instructed to get from the deck of Hoi Fat to the deck of Hyperion by way of ascending a rope ladder along the freeboard side of Hyperion. The coxswain went first and Tam observed. Upon the coxswain’s indication from the deck of Hyperion once he reached there, Tam followed.

6.  After reaching a height of about 5 metres, Tam found himself in difficulty of advancing further along the rope ladder. Apparently in such circumstances, the coxswain directed Tam to descend back to Hoi Fat. In his attempt to do so, Tam fell from a vertical height of about 5 metres before landing on the deck of Hoi Fat. As a result, Tam suffered from serious injuries to his left wrist, left foot, lumbar and spine. He becomes wheelchair bound now.

7.  No investigation was conducted by the Labour Department as it was a case of floating vessel outside its jurisdiction. However, the Marine Department did compile an incident report, which will be referred to in the discussion below.

8.  Tam commenced the present action in November 2016. By the time of the trial, his case became clear that he is holding NOPC liable as his employer and NPC liable as the operator of Hoi Fat for the accident and his injuries. Against NOPC, Tam alleges negligence, breach of liability as occupier of Hoi Fat under the Occupier’s Liability Ordinance, Cap 314, breach of section 6 of the Occupational Safety and Health Ordinance, Cap 509 as well as breach of implied term of employment contract. Against NPC, Tam alleges negligence as well as breach of liability as occupier of Hoi Fat.

9.  NOPC and NPC deny liability.

10.  NOPC and NPC were legally represented up to the last minute. Their solicitors ceased to act for them with leave of the court on 30 August 2022. Hence the stepping in of the Employees Compensation Assistance Fund Board (“the Board”) and its joinder as the 3^rd defendant by the order of this court on 16 September 2022. Upon the indication by the Board that it intended to take issue as to quantum only, this court directed, amongst other things, that the trial should proceed as scheduled but on the issue of liability only, and which the Board was also excused from attending.

THE DISPUTE

11.  Essentially, the pleaded case of Tam is as follows:

(1)  Tam had no training, instruction or experience in gaining access between vessels from deck to deck by using a rope ladder. He proceeded because of the insistence of the coxswain that that was the only feasible way at the time.

(2)  The rope ladder at the time was defective in that its rungs were made of round wooden sticks. The rungs were also not secured at their ends, for which Tam was also instructed by the coxswain the rungs could become displaced from the ropes.

(3)  There was no installation of independent lifeline and fall arrest buckle. Nor was safety helmet or proper hand gloves provided.

(4)  In the attempt to descend the rope ladder upon the instruction of the coxswain as mentioned above, Tam managed for 2 or 3 rungs before the rope ladder swayed, moved and shook violently which caused him to lose grip and fall.

(5)  There was the alternative way of gaining access via a metal door on the starboard side of Hyperion a few metres above the waterline. Alternatively, it was possible to make arrangement to gain access to Hyperion on land at the container terminal.

(6)  There was no proper or any risk assessment in respect of such manner of work expected of Tam.

12.  That NOPC and NPC were respectively the employer and operator of Hoi Fat at the material time was admitted. So was the fall accident. By pleading, the defendants raised the following issues in defence:

(1)  The coxswain told Tam that he was free not to climb up the ladder. When Tam did so, his ascent was monitored by the coxswain.

(2)  Seeing that Tam somehow paused after ascending for about 3 metres, the coxswain instructed Tam to descend and warned him not to let go of the rope ladder. However, Tam did just that.

(3)  The rope ladder never swayed, moved or shook violently.

(4)  The existence of a metal door on the starboard side of HYPERION was not admitted. Using the rope ladder was the only way to gain access to and egress from the deck of HYPERION at the time.

(5)  The end of the rope ladder was not fastened (to Hoi Fat) at the time because it would be dangerous to do so.

(6)  Independent lifeline or fall arrest buckles were not suitable for climbing the rope ladder.

(7)  It was Tam’s fault for not informing the operators of Hoi Fat that he was unfit to climb the rope ladder and for choosing to wear his own gloves instead of the gloves provided to him. Even wearing no gloves at all would have been safer than those Tam wore at the time.

13.  Apart from joining the issues, Tam also pleaded in reply his alternative case on liability on the basis of the circumstances alleged by NOPC and NPC summarised above.

14.  As such, dispute arises in respect of first, how exactly the accident happened; and second, what reasonable duties of NOPC (as the employer) and NPC (as the party in control of the operation) entailed in the circumstances; and whether any of them was in breach of such duties in the circumstances.

THE WITNESSES

15.  No one for the defence turned up at the trial. Satisfied that the defendants had notice of the trial, this court allowed Tam to prove his case.

16.  3 witnesses as to fact were supposed to be called for the defence, including NOPC’s operation manager and the coxswain of Hoi Fat at the material time. In view of their absence, all the witness statements for the defence were expunged and disregarded. Tam gave evidence, which included his 3 witness statements confirmed and adopted in court. It should be noted that the last 2 of the 3 witness statements were actually adduced mainly in response to the allegations of the defendants’ witnesses whose statements, as mentioned, were expunged.

17.  Pursuant to leave of the court, the parties have adduced the expert reports on liability from Captain Lee Fook Choon (“Capt Lee”) for Tam (dated 27 July 2018 and 2 October 2018) and Captain Cheung Hon Yee, Alfred (“Capt Cheung”) for the defendants (dated 22 August 2018 and 13 September 2018). They were supposed to give oral evidence in respect of the disputed issues set out in their list dated 18 October 2019. Now only Capt Lee attended the trial.

HOW THE ACCIDENT HAPPENED

18.  There was nothing inherently implausible about Tam’s evidence in respect of how he came to fall at the time. Nor did that deviate from the likely environment prevailing at the time which could well be gauged from the photographic evidence.

19.  Both the defence witness statements and the incident report of the Marine Department dated 15 January 2015 mentioned above (recording the version according to the defence witnesses) suggested that Tam failed to heed to the instruction or warning of the coxswain and simply let go of the rope ladder and fell. A slightly different version was recorded in Form 2 submitted by NOPC on 11 December 2014 (ie 3 days after the accident) which suggested that Tam’s feet slipped on the rung of the rope ladder and therefore fell. As the defence version in contradicting that of Tam was key, that, be it one way or the other, would have been expected to be properly substantiated and tested at the trial. That of course did not happen.

20.  All evidence considered, I was satisfied and therefore found that the accident happened in the manner as contended by Tam and set out in the above background. In particular, I found that the end of the rope ladder at the deck of Hoi Fat, reasonably or not, was unsecured. This rendered the rope ladder unstable and, more probably than not, to sway and shake while Tam was on it at the material time. I found that it was a combination of circumstances, namely the make and stability of the rope ladder as well as the state of Tam on such a ladder at the time which rendered him unable to maintain his stability and grip. Hence his fall and injuries.

DUTIES OF THE DEFENDANTS AND BREACH

21.  There should be no argument about the existence of duties, both under common law and as implied by the employment contract as well as under the statute as pleaded on the part of NOPC as the employer to ensure that the system of work for Tam at the material time was reasonably safe. That included the provision of sufficient training, instruction and equipment as well as safe place of work. Safe place of work should consist of safe access to and egress from the place of work. As the party in control of the operation at the time, NPC was also under similar duty to ensure that it was reasonably safe.

Factual evidence

22.  According to Tam, it was the express and actual arrangement that he worked mostly in office, though his duties as a stock assistant included occasional working on the company vessel fleet and customer vessels. His job was to ensure the correct amount of marine fuel sale. He had to bring documents and oil sample to the customer vessel. To get on board the customer vessels, he had to climb vertical ladder along their sides. He referred to vertical ladders with strong wooden steps. As mentioned, that sort of outdoor work happened occasionally.

23.  After promotion to the position of Mainland Operation Coordinator, whilst retaining the position of stock assistant at the same time, it became seldom that he had to carry out outdoor duties. When foreign vessels arrived, he might have to accompany the vessel agent to visit the Marine Department for documentation work. Sometime, he might be required to get on board a commuter boat to get to the foreign vessel at sea to deliver documents, but without having to get on board the foreign vessel.

24.  Tam was adamant that there was no safety training on access to vessels at sea. Nor was such training ever provided in the course of his employment including where he was required to actually get on board vessels at sea. Contrary to the suggestion of the defence, he has never been a sailor.

25.  On the day of the accident, the only equipment offered to him was a pair of ordinary cotton gloves. Tam indeed chose to wear his own pair of gloves. The defence raised dispute as to the propriety of Tam’s own gloves. However, there was lack of concrete factual basis for attributing the fall to loss of grip by Tam as a result of the quality of the gloves. Nor was there basis for contending that Tam would not have fallen had he used the ordinary cotton gloves provided by NOPC instead. As further considered by the expert on liability (below), the glove issue was effectively red herring. Tam wore his safety shoes on duty at the time. Other than that, no other safety equipment, not even a safety helmet, was provided to Tam.

26.  Against the above information obtained from the evidence, one can readily form a view of the environment that Tam was made to face at the time also by reference to the photographs taken by the Marine Department on the same day shortly after the accident. The scenario of expecting anyone to climb the rope ladder from the deck of Hoi Fat to get to the deck of Hyperion was nothing short of daunting. As Capt Lee, the expert on liability, observed, it was hard to even contemplate the use of the subject rope ladder for climbing the vertical distance between the deck of Hoi Fat and that of HYPERION deck, which was about 12 metres, at sea.

27.  It could be observed that the rungs of the subject rope ladder were circular wooden sticks with no flat stepping surface. Nor were there the so-called spreaders which would reduce the swing motion of the rope ladder when used. An example of a proper rope ladder was shown in the photographs. There was no counter evidence suggesting any unreasonableness or impracticability of arranging a proper ladder instead of the one in question, if this form of access to and egress from the vessel at sea was inevitable in the circumstances.

28.  The defence was that use of independent lifeline, fall arresting buckle and safety belt were not suitable. The defence suggested that in the case of fall arresting buckle, the climber would need to use one hand to push the buckle up along the ascend and would have rendered the climb dangerous instead. Yet even assuming that that might be a reasonable view, that would not be answer to what reasonable discharge of the duty would entail to ensure that Tam would not be unsafe in the course of his work in such manner. The reality, I found, was that the operation was very much left to the crew in charge of Hoi Fat at the time, to which Tam was subjected.

29.  The defence seemed to suggest that Tam was given the choice whether or not to climb the rope ladder. However, any suggested free will on the part of Tam, or even that he was the author of his accident, must be assessed in the light of the reality that he was there and then under instruction to carry out his assigned duties which required him to get on board Hyperion and there was no suggestion or evidence that he was at any stage in control of the manner of how that should be carried out.

Expert evidence

30.  Capt Lee provided, amongst others, the following opinion in his reports dated 27 July 2018 and 2 October 2018. Apart from the evidence made available to him, the expert also referred to various codes of practice on safe means of access for works on vessels and protective equipment.

31.  The vertical distance between the deck of Hoi Fat and that of Hyperion, as mentioned, was around 12.25 metres. Use of the subject rope ladder should not even be contemplated in the circumstances. Rope ladder with round rungs are not used by pilots, crews, superintendents, customs officers and boarding officers to board a vessel of this height. Boarding a vessel via a rope ladder in the circumstances was a dangerous procedure. The round rungs would not provide adequate foothold. Body weight transferred to the hands of the person in the ascend and descend on the rope ladder would also be physically demanding and exhausting.

32.  Rope ladders with round rungs are usually not fitted with spreaders that would have prevented swaying. A proper rope ladder must be made with rectangular rungs, which are slip-resistant with a depth of at least 115 mm to afford footholds and fitted with spreaders at intervals not more than 9 rungs apart. Spreaders should be long enough to prevent twisting due to the ladder’s extraordinary length. Length of a rope ladder with round rungs should not exceed 4 metres for safe use. Where the freeboard is 9 metres or more high, a proper rope ladder, with flat rungs and spreaders as mentioned above, should only be used in tandem with an accommodation ladder. Contrary to the defence, Capt Lee opined that independent lifeline could be put in place as safety measure.

33.  It was interesting to note from the evidence that the senior management of at least NOPC set up a WhatsApp group soon after the accident, through which instruction was given for the safety measures to be adopted for vessel to vessel access at sea. Such measures included the use of safety belt and lifeline. Likewise, similar step was taken by NPC to draw the staff’s attention to similar safety measures.

34.  Personnel working at height may become unable to give full attention to his job while guarding against falling. Therefore, it would be necessary to provide training to civilian employees on access from vessel to vessel. If the coxswain indeed noticed something wrong with Tam at the time, he should not have allowed Tam to even embark.

35.  The 3M Grip Gloves which Tam used were suitable whereas climbing by bare hands suggested by the defence should be avoided. Capt Cheung also opined that the 3M Grip Gloves used by Tam at the time were suitable, contrary to the defence.

36.  Whilst Capt Lee and Capt Cheung, liability expert for the defence, differed in respect of the availability and feasibility of alternative access to Hyperion at the time via a mid-height steel door on the hull at the time, they were ad idem that there was possible alternative access to the vessel via a gangway from the pier side.

37.  I saw no reason not to accept the expert evidence of Capt Lee. Insofar as it was necessary, I would prefer his evidence to that of Capt Cheung after considering the supplementary report of Capt Lee on what they disagreed.

CONCLUSION

38.  Considering all the evidence, I found that the defendants were in breach of their respective duties owed to Tam. NOPC failed its duty of reasonable care towards the safety of Tam, when the latter’s work would involve access from vessel to vessel in the circumstances of this case. There was no assessment of the risk of the manner in which Tam was required to work. Nor was there provisions of reasonable and sufficient instruction, training and equipment. NOPC might delegate the operation to its associate, NPC. However, it could not delegate its duty owed to Tam. As the party in control of Hoi Fat and the operation at the material time, NPC owed Tam the duty to ensure that the latter would be reasonably safe in the vessel to vessel access and egress at the time. It failed such duty in the circumstances.

CONTRIBUTORY NEGLIGENCE

39.  As mentioned, there was no real basis for suggesting that Tam did what he did out of his own volition. Tam did nothing extraordinary except for trying to maintain himself from falling at the time. Even assuming that he panicked at the time, which, as mentioned, would not have been unreasonable in the circumstances, I saw no real factual basis for attributing the accident to his own negligence in the circumstances.

ORDER

40.  Hence my order at the conclusion of the trial entering judgment on liability against the defendants with costs on liability up to judgment to be taxed if not agreed. I also ordered that Tam’s own costs shall be taxed in accordance with legal aid regulations.