YUEN WAI LING v. OCEAN SHIPPING AND ENTERPRISES LTD.

IN THE COURT OF APPEAL

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The issue at the trial was whether the mosquito bite (or bites) which led to the death of a deceased employee arose out of and in the course of his employment. The District Judge found that it did, but there has been some dispute as to the basis of that finding.

2. The Deceased was a mess-boy in an ocean going vessel. His duties were said to be "those of cleaning cabins and waiting at table", in the course of which "he would occasionally go to the galley to collect food to serve at the tables". The significance of this was that the vessel was fully air-conditioned except for the galley and was therefore kept substantially sealed against the entry of mosquitoes except when persons were going in or out through the doors. On 30th July 1983 at Abidjan the Deceased complained of a severe headache. He was sent ashore to see a doctor and returned to the ship after treatment. Next day the ship sailed for South Africa, but the man's condition deteriorated and on 5th August he was put ashore at Walvis Bay. He died of malaria on 6th August.

3. The Master's affidavit, which was received in evidence saving all just exceptions, gives details of the voyage immediately prior to the death of the Deceased. This showed that since the ship arrived off the West African coast she had been in infected ports on a total of 37 days. (One of the dates shown in the copy of the judgment filed in this court is incorrect). There was then medical evidence which satisfied the judge that the bite which led to the infection of the Deceased was delivered either at Tema or at Douala. It was an agreed fact that the Deceased had taken shore leave "at West African ports" but the direct evidence was definite only as to his not having done so at Apapa. There was hearsay evidence in the Master's affidavit that he took shore leave at every port except Apapa, but the judge declined to give that evidence any weight.

4. The first complaint on the appeal has been at the judge's rejection of the hearsay evidence which had been admitted. It is submitted that, as no formal objection was taken to the hearsay contents of the Master's affidavit, the judge was under an obligation to treat it as uncontested and, therefore, true. I think that goes too far: it must always be for the judge to decide what weight he will attach to hearsay evidence and he will bear in mind not only the reliability of the witness but also the likely reliability of his informant in the light, inter alia, of any incentive he might have to conceal or misrepresent facts. I would not interfere with the trial judge's exercise of his discretion.

5. The judge said that the Applicant placed great reliance on Dover Navigation Compary Limited v Craig 1940 A.C. 190, a case which, he said, was concerned with the question whether the "accident" arose out of the employment and consequently

"it does not appear to have been a matter of any great moment whether the bites were sustained aboard ship, or ashore, when the course of employment might have been interrupted. I feel therefore that to some extent the precision as to the place of the bites which the parties and the court have been striving for, is not one which the liberal construction of the ordinance, which I am required to give, sustains. "

I take this to indicate a preference for the first contention of the Applicant, that whether the bite occurred on board or ashore it was an accident arising out of and in the course of the employment. That that was the judge's approach also appears from the passage where he says:

    "So far as proof is concerned the Applicant's solicitor has submitted that it is not possible to establish where the infecting bites occurred. I agree, but I do not think that where there is a seaman living on board a ship for 5 weeks in an area where malaria is endemic and where as here I have not found the accident to have occurred at any particular point of time, to take it temporarily out of the course of the employment, that the applicant can be called upon to assert and prove even on balance that the accident happened on board. That would be quite impossible and against the liberal construction or even the purposive construction of the Ordinance, which I have to remember is not attaching the stigma of even civil liability for any wrongdoing, but merely ensuring that those who are injured while at work and die or are disabled receive some compensation. "

In the following paragraph he expressly disclaimed any attempt to balance the probabilities that the bite occurred while the Deceased was on leave ashore against those that it occurred while he was on board, but I am left wondering whether it was a disclaimer which the judge himself honoured, for he said:

        "But for the possibility probability or even likelihood of the bite being sustained ashore, after working hours, this accident would clearly have arisen in the course of the deceased's employment. However likely it may be that the infecting bite was administered ashore, to hold such would be to speculate however slightly against the evidence and strongly against the common sense reconstruction of a general picture of a mess boy on board ship for 5 weeks in a malarially infected area. I decline to do that and I hold on the facts that the accident in the shape of the bite which infected the deceased was an accident occurring in the course of his employment. "

The second sentence of this passage appears to suggest that the judge himself thought there was no evidence upon which he could properly find on a balance of probabilities that the bite was administered ashore, although in the first sentence he accepted that there was a probability "or even a likelihood" - the distinction between which escapes me - that it was sustained ashore, after working hours. Whatever view he took as to the balance of probabilities, if there was in truth a probability that the bite was sustained ashore, after working hours, there could have been no question of the judge's "speculating however slightly against the. evidence". His reference to speculating "strongly against the common sense reconstruction of a general picture of a mess boy on board ship for 5 weeks in a malarially infected area" does, however, suggest a balancing of probabilities in spite of his use of the word "speculate". Moreover, he had earlier said:

"It would I think be slightly imaginative to suggest that during those 33 days in port in an area where the risk of malaria is endemic that the deceased was only at risk for mosquito bites while ashore and never while on board. "

That, again, seems to contemplate a balancing of probabilities which the judge eventually resolves in favour of a bite on board.

6. It is in the light of all this that the appellant Ship-owners contend, first, that the judge was wrong in holding that it was immaterial whether the bite was inflicted ashore or on board and, secondly, that any finding that the bite was inflicted on board rather than on shore was unsupportable upon the evidence.

7. In support of the first of these contentions Mr. Mackenzie Ross argues that the Applicant's reliance in the lower court on Dover Navigation Company Limited v Craig was misplaced. That was a case where a claim was made in respect of the death of one of a number of members of the crew of a vessel who died of yellow fever (possibly aggravated by malaria) on a voyage to West Africa in 1936. The judge at first instance had found himself constrained by authority to hold that the "accident" did not arise out of the dead seaman's employment, because he was not more exposed to the risk of mosquito bite than all other persons who frequented that part of the West African coast in summer. His decision was reversed by the Court of Appeal, and the House of Lords affirmed the decision of that court. Lord Atkin said at 1940 A.C. 196:

"In my opinion, this particular risk of injury by accident was inherent in the nature of the employment; it was necessarily incident to the performance of the sailor's work .......... it seems irrelevant that others are exposed to the same risk. ... For my part I find it difficult to conceive a risk more truly arising out of the employment than the risk incurred by the seaman who is sent to work in a fever-infested place abroad. Once establish the risk is one of 'accident' and the connection between the employment and the accident seems to be clearly established. "

Both counsel before us recognize, as did the trial judge, that in that case there was no live issue whether the "accident" arose in the course of the employment - only the issue whether it arose out of the employment.

8. When considering what was said in Dover Navigation Company Limited v Oraig, therefore, one must always bear in mind the words of Lord Wright at p. 199

"Nothing could be simpler than the words 'arise out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out' of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality".

In our case what the Ship-owners contend is that the Applicant has not established that the Deceased was bitten when in the course of his employment: I do not understand Mr. Mackenzie Ross to say that, if the bite was inflicted when the Deceased was in the course of his employment, it would not then arise out of the employment.

9. In Dover Navigation Company Limited v Craig counsel for the ship-owners no doubt realised that it would have been an impossible task persuade the court, even on the balance of probabilities, that the fatal bite was inflicted at a time when the course of the seaman's employment had been interrupted by shore leave, even assuming that he had in fact gone ashore. Mr. Mackenzie Ross has felt able to do so here by reason of the fact that the ship in this case was air-conditioned. Before the advent of this modern luxury anyone on board a vessel within half a mile of an infected shore was in real danger of attack by disease-carrying mosquitoes. Entry could be expected through doors, port-holes and ventilators. No one would suggest that an air-conditioned ship was mosquito-proof, but the chances of infestation are much less, because the steps taken to prevent the escape of cool air would equally keep out the mosquitoes.

10. Nevertheless, the argument that it was immaterial whether the bite was inflicted on board or on shore was based largely on dicta in Dover Navigation Company Limited v Craig.  Thus at p. 204 Lord Wright said:

"The seaman is not exposed to the risk because he is an inhabitant of the place but because he is specially taken to the dangerous place by his employment. The position of a seaman under the act is in many ways peculiar because his employment may expose him to risks in strange climates outside the limits of this country. In that way such risks are not normal to him but are necessarily incidental to his employment. It is, in my opinion, fallacious to treat as normal to him risks which are normal to the ordinary inhabitant of the place, who is not there because of special employment like the seaman. "

What is, I think, contended in the present case is that it was the employment which took the Deceased to the West African ports and that, but for that fact, he would never have been in that area at all - whether at work or on leave. Although Mr. Hoo did not suggest this in so many words, I think it is implicit in his argument that it was an incident of the employment that any shore leave would have to be taken in a fever-infested area. Although such a view would necessarily be in conflict with the principle which was adopted in MA Kit-ching v Attorney General Civil Appeal 1983 No. 64 (a case which unfortunately has not been reported), it is arguable that the position of a seaman is of such a peculiar nature that the concept of a break in his employment while he is on shore leave should not be applied strictly. However, Hewitt v Owners of the Ship Duchess 1910 1 K.B. 772 shows that the principle adopted in MA Kit-ching's case is not completely inapplicable to seamen. In that case the Master of a coaster fell off a quay, and was drowned, when he was waiting for a boat to take him back to his ship after visiting a hotel on shore. His widow failed to recover compensation because she could not prove affirmatively that he had gone to the hotel on the ship's business rather than on his own.

11. It was presumably this conflict of principle that the trial judge had in mind when he referred to his being required to give a "liberal construction of the ordinance". He thought it would be wrong that the Applicant should be called upon to prove that the "accident" (that is to say, the bite) happened on board.

12. It seems to me that there would be a danger in extending the meaning of the words "in the course of their employment" in relation to employees of a particular class, and then only in relation to a particular class of "accident". For my part I am unable to accept that a seaman on shore leave in Douala is "in the course of" his employment whereas his fellow seaman on shore leave in Bangor is not.

13. That brings me to the second issue on the appeal. It was common ground that the burden was on the Applicant to prove that the "accident" occurred both out of and in the course of the Deceased's employment (Bender v Owners of the Steamship Zent 1909 2 K.B. 41) and the question which now has to be answered is whether, assuming this to be material, there was evidence sufficient to discharge that burden. The Applicant contended that although the judge was right to say that it would be unimaginative to suggest that the Deceased was never at risk while on board yet the balance of probabilities was in favour of the fatal bite's having been inflicted on board. To upset the judge's finding (whether express or implicit) the Ship-owners have to persuade us that no reasonable judge could have reached such a decision on the evidence. Mr. Mackenzie Ross emphasizes the barrier which the air-conditioning would set up between the mosquito and his prey and he relies upon the evidence of Dr. Wedderburn that, although the infection would not necessarily be caused outside air-conditioning, he had said in his report that he had no doubt that the Deceased caught the disease "on shore leave at Tema". He said that he did not then realize that "after leaving Douala [the vessel] went back to Abidjan". This was in relation to his opinion that the disease was·

 

"so virulent that incubation period is more usually 10 days.

 

Yes 10 - 15 days.

 

Man may have been bitten in Tema - more likely in Douala. "

This modification of his opinion from that expressed in the report would not affect the opinion that the Deceased caught the disease "on shore leave".

14. Mr. Hoo replies, first, that the expertise of the doctor did not extend to saying whether the bite was more likely to have occurred on shore than on board (which, of course, involves matters of insectology rather than of medicine) but only to the period of incubation of the disease in the human body - and to the symptoms and treatment of the disease. Mr. Hoo then emphasizes that the isolation of the vessel was far from complete and that the Deceased would not infrequently have to go out to the galley - he might have added "and probably to parts of the open deck not on the direct route to the galley" - in the course of his duties. He submits that, when all this is viewed in the light of the obvious fact that so much greater a proportion of his time would be spent on board - and it matters not whether he was actually working when bitten - than would be spent on leave ashore, the judge's finding was reasonable and should not be interfered with.

15. It is immaterial whether the judges of this court or any of them would have come to a different conclusion: I think there was evidence upon which the judge could find that it was more probable than not that the bite was inflicted on board - when, it is admitted, it would have arisen out of and in the course of the Deceased's employment.

16. I would dismiss the appeal.

Yang, J.A.:

17. I have had the advantage of reading the learned Vice President's judgment in draft and agree with everything he says. It is necessary for me simply to say that reading the trial judge's judgment as a whole and in its proper context, he already decided the case on a balance of probabilities. In language which is not entirely felicitous, he appeared to be stating that whilst it was possible, probable or even likely that the mosquito bite had been sustained ashore, the greater probability was, having regard to the "commonsense reconstruction of a general picture of a mess boy," that the accident had occurred on board.

18. I too would dismiss the appeal.

Silke, J.A.:

19. I agree with the conclusion reached by the other members of the court.

Sir Alan Huggins, V.-P.:

20. There will be an order nisi that costs follow the event.

28th September 1984