YEUNG YU v. WONG YUNG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

BETWEEN

Coram: Master O'Donnell in Chambers

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was sitting in the driver's seat of his stationary lorry parked along the waterfront of Kennedy Town New Praya, Hong Kong at 4.15 p.m. on 12th August 1980. At this time a lighter owned by the 1st and 2nd Defendants was moored alongside the seawall of the said Kennedy Town New Prays and was engaged in unloading cargo by use of a boom derrick which was rigged to a samson post mounted on the deck of the lighter. The said samson post suddenly fractured and collapsed causing the derrick to fall and strike the drivers cabin of the said lorry thereby injuring the Plaintiff. The 3rd Defendant as an independent engineer and shipbuilder had constructed the said lighter in 1971.

2. The question of liability between the parties was resolved at a defended action before Mr. Justice Mantell in the High Court on 15th, 16th, 19th and 20th November 1984, and with the reserved judgment being delivered on 5th December 1984. In this decision the Plaintiff was awarded judgment against the 1st, 2nd and 3rd Defendants with liability for the Plaintiff's damages and costs being apportioned between the Defendants on the basis that 50% of same against the 1st and 2ND Defendants jointly and the remaining 50% against the 3rd Defendant. The damages were to be assessed by a Master which was the purpose of this hearing.

3. The Plaintiff suffered serious injuries in this accident and was unconscious when admitted to Queen Mary Hospital. His injuries included multiple facial lacerations and fractures of the nasal bone, his left 5th, 6th, 7th and 8th ribs, the 1st lumbar vertebra and a compressed fracture of the 5th cervical vertebra. The Plaintiff was in hospital from 14th August until 2nd September 1980 and thereafter attended out-patient and physiotherapy treatment for his injuries. Almost 5 years after this accident the Plaintiff still suffers constant pain in his lower back and has serious eyesight deficiencies. The main medical evidence adduced consisted of 4 reports from Dr. R.G.M. Wedderburn, and 3 reports and oral evidence from Dr. W.J. Heffernan, an opthamologist. The expert medical evidence, which is accepted, has assessed the Plaintiffs permanent disability to be 20% Impairment of the whole manmade, up of 8% for loss of vision, 12% from compression of the 1st lumbar vertebra by more than 50%, plus 1% from the cervical vertebra fracture and his neck injury. The Plaintiffs main problem is lower back pain which he gets by sitting for over an hour or from walking for that time. This is so even though he wears a surgical corset to support the lumbar region. Dr. Heffernan in his evidence explained the extent of the Plaintiff's eyesight defects of double and blurred vision arising from his nasal and brain injuries in this accident. It was also pointed out that the recent premature onset of cataracts in both eyes will exacerbate the plaintiff's problems with his eyesight in the future.

4. Despite efforts on this own and through the Labour Department the Plaintiff has been unable to obtain any form of employment since the date of this accident. Previously, he was an owner/driver with his own lorry, but is now unfit to drive or to perform manual labour. For all practical purposes the Plaintiff is unlikely to find alternative employment because even sedentary occupations, such as, a watchman or janitor, are unsuitable for him with his back injury and eyesight deficiencies.

5. Turning to the assessment of damages in this case the following heads of damage will be considered:

1.    Pain, suffering and loss of amenities

6. Counsel for the Plaintiff suggests that damages under this head should exceed $100,000, whereas both Counsel for the Defendants suggest an award of $40,000 to $50,000. The Plaintiff's injuries were extensive and have taken a long time to stablize. He had 28 days in hospital and out-patient physiotherapy treatment for a considerable period. The Plaintiff still suffers back pain from sitting or standing for any extended period. Furthermore, because of the defects in his eyesight, the Plaintiff has suffered a loss of amenities from increasing difficulty in reading a newspaper and cannot go out on the public street on his own because of the danger of bumping into other pedestrians and from vehicular traffic. He is more as less confined to resting at home and watching T.V. as he is unlikely to find suitable employ meat in the future. The injuries suffered by the Plaintiff would place this case at the top of the "serious injury" category as defined in LEE Ting-ban v. LEUNG Kam-ming (1980) H.K.L.R. 657. Taking into account the fall in the value of money since the range of awards was outlined in LEE's case and after consideration of several eye cases referred to in the assessment of Master Hansen delivered on 18th May 1985 in LEE Tat-Hung v. AMIGO ENTERPRISES LTD-HCA 1257 of 1984, an appropriate award would be $120,000 under this head.

2.    Loss of Earnings

7. The Plaintiff's evidence and documentary evidence filed in support confirmed that his average monthly earnings prior to the date of this accident was approximately $3,000 after taking into account his fixed deductions. This figure for monthly earnings will be adopted to assess the pre-trial loss over a 5-year period from date of this accident. The Plaintiff has done all that could have been expected of him to mitigate his loss by seeking alternative employment through friends and the Labour Department. Unfortunately, no suitable employment is available to him because of his disabilities. It is unrealistic to suggest that he should have continued in the transportation business by continuing to pay off the hire purchase payments on his new goods vehicle after engaging a driver to operate same in his place. Obviously, most of the profit from such an operation would be needed to met the wages of the driver engaged to operate his goods vehicle. As explained this was not a viable alternative open to the Plaintiff to mitigate his loss of earnings. Therefore pre-trial loss of earnings is assessed as follows :

$3,000 ×12 months × 5 years = $180,000.

As for post-trial loss of earnings the Plaintiff is now 56 years of age and in a normal working life in Hong Kong could have expected to have continued in his occupation for at least another 5 years. Taking into account the usual discount for a lump sum payment and the usual vicissitudes of life an appropriate multiplier for post-trial loss of earnings would be 5. While this figure may be generous it does take into account that no in rease of earnings is being allowed for over a total period of 10 years for which the same multiplicand is being used, namely, $3,000 per month. Post-trial loss of earnings is assessed as follows :

$3,000 ×12 months × 5 years = $180,000.

3.    Miscellaneous Special Damages

(a)	Hospital and physiotherapy fees agreed at	$	249.00
(b)	Cost of surgical corset agreed at		180.00
(c)	Wife's travelling expenses to visit Plaintiff twice a day while he was in hospital (28 days) agreed at		84.00
(d)	Plaintiff's travelling expenses in obtaining physiotherapy and other out-patient treatment is claimed at $714 but his evidence would only support a claim for less than half this figure. The following sum is allowed	$	250.00
(e)	The claim of $1,000 for tonic food will be allowed as figure paid on the usual award of $20 a day for the period of hospitalisation (28 days) and a similar period thereafter		1,000.00
(f)	The claim for bonesetters fees is disallowed as Plaintiff has no documentary evidence to support his contention that $1,000 has been paid for this service and that a balance of $2,000 is outstanding.
(g)	Plaintiff claimed for the balance of $9,383.56 due to the Hang Seng Finance Limited on the repossession and sale of the IZUZU goods vehicle being paid off by him under a hire purchase agreement at the date of accident. This loss is directly related to this accident as the goods vehicle was extensively damaged by the falling derrick, and the Plaintiff in the absence of earnings or income because of his injuries in the accident was unable to keep up with his monthly hire purchase repayments of $2,300. There was no viable alternative in the circumstances for the Plaintiff but to allow the finance company to exercise into its rights under the hire purchase agreement to mitigate its loss. Although repairs to the goods vehicle were effected under the terms of its insurance cover, the vehicle was sold by the finance company after being repossessed. The sum of $9,383.56 due to the finance company is supported by documentary evidence and as this loss arises directly from the accident it will be allowed as an item of special damages	$	9,383.56

A summary of this assessment of damages is set out as follows:

(1)	Pain, suffering and loss of amenities		$	120,000.00
(2)	(a)	Pre-trial loss of earnings	$	180,000.00
	(b)	Post-trial loss of earnings.	$	180,000.00
(3)	Miscellaneous Special Damages
	(a)	Hospital and physiotherapy fee	$	249.00
	(b)	Surgical corset	$	180.00
	(c)	Wife's travelling expenses	$	84.00
	(d)	Plaintiff's travelling expenses	$	250.00
	(e)	Tonic food	$	1,000.00
	(f)	Loss on goods vehicle	$	9,383.56
	Total Damages		$	491,146.56
				========

8. Interest on the general damages of $120,000 will be at the rate of 2% p.a. from the date of the issue of the writ until the date of judgment. Interest on the special damages will be at the rate of 5.6% p.a. from the date of the accident to the date of judgment. There will be no interest on the award for loss of future earnings. There will be an order for costs to the Plaintiff with the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Mr. P. Graham Counsel instructed by Director of Legal Aid for Plaintiff.

Mr. C. Wong of Lo, Wong & Tsui, Solicitors for 1st and 2nd Defendants.

Mr. K. Ng, Counsel instructed by David Ravenscroft & Co. for 3rd Defendant.

Action No. 9069/81

HEADNOTE

A driver was injured when a derrick boom held on the cab of his lorry as he was waiting at the quayside to be loaded. The derrick boom was rigged to the mast of a lighter which was being off-loaded, and fell as a result of the mast breaking in two. The mast had been constructed from two sections of steel tubing which had not been properly joined. The driver sued the owners of the lighter and its builder.

Held

(1)	The builder was liable in negligence for using a second hand mast without making sure that the two sections were properly joined or advising the owners that no check had been carried out.
(2)	The owners were liable in negligence because the defect in the mast was not latent and they failed over nine years to investigate the joint of the two sections.
(3)	The owners were in breach of statutory duty as:-

	(a)	a failure to comply with Regulation 17(a) of the Shipping and Port Control (Cargo Handling) Regulations does give rise to a cause of action,
	(b)	the plaintiff was within the purview of the regulation as a person employed in cargo handling,
	(c)	the mast was not made of strong or sound materials or free from patent defect as required by the regulation.

No. 9069 of 1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. In the afternoon of 12th August 1980 a lighter was off-loading its cargo of rice at the Kennedy Town New Praya onto lorries waiting at the quayside. The sacks of rice were being lifted by a boom derrick rigged to a samson post mounted on the lighter. All at once, belying its name, the samson post broke in two allowing the boom derrick to fall on top of the driver's cabin of one of the waiting lorries. The lorry in question was next in line and about 25 feet behind the one being loaded. The driver was in the cab. He was injured. He was lucky not to be killed.

2. The samson post, or mast as I shall call it, was made from two sections of steel tube of slightly different diameters. They were joined together at a point visible above the deck of the lightersr the base of the mast was, of course, welded to the hull. The two sections had been welded together at the point of abutment which, because of the difference in diameters, was not entirely coincidental. There had been no preparation of the edges of the tubes prior to welding which was circumferential and confined to the small recess formed in the overlap of the smaller by the larger tube. The joint was not supported by any external or internal sleeve. It is unusual to form a mast of this kind from two sections of tube. This one had been retrieved from a scrap yard for ocean going vessels sometime before the lighter was built in 1971. The break occurred at the joint of the two sections.

3. In 1980 the lighter was owned by Ng Chun and Ng Bill. Ng Chun has since died. It was built for the owners in 1971 by Law Chi Choi at his ship-yard at Kwong Cheung Hing. In this action the driver, Yeung Yu, is the Plaintiff and he sues the surviving owner and the personal representatives of othe other as 1st and 2nd Defendants in negligence and for breach of statutory duty, and he sues the shipbuilder as 3rd Defendant in negligence. There is a third party action in which the 1st and 2nd Defendants claim indemnity against the 3rd Defendant. Both actions have been heard at the same time. It was pleaded by all Defendants that by remaining in his cab close to where loading was taking place the Plaintiff had consented to the risk of injury, or, alternatively, that he had been wholly or in part the author of his own misfortune. The allegations were absurd and counsel very sensibly abandoned them soon after the hearing began. Although I take the pleadings for all Defendants to raise the defence of pure accident which, subject to breach of statutory duty, would be a complete answer to the claim, that has not been urged upon me; the Defendants in the event seeking to blame each other. In those circumstances it would seem that the Plaintiff must succeed in establishing liability against either the 1st and 2nd Defendants or the 3rd Defendant or all of them subject to which, in the absence from Hong Kong of one of the doctors, it has been agreed that the assessment of damages should be referred to the Master.

Breach of Statutory Duty

4. Originally the Plaintiff relied upon breaches of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear Regulations and of the Shipping and Port Control (Cargo Handling) Regulations against the 1st and 2nd Defendants. No admission is made as to the application of the first mentioned regulations but it is averred by the 1st and 2nd Defendants that the lifting gear made up of the mast, boom derrick and chain ropes was a lifting appliance within the meaning of the Shipping and Port Control (Cargo Handling) Regulations 1978. At the hearing, the Plaintiff has confined himself to alleging breaches of these last mentioned, and, in particular, to the allegation that the mast was not of good mechanical construction and design, made of strong and sound materials, and free from patent defect as required by Regulation 17(a), and that it was not properly maintained in safe working condition and was not properly installed and rigged for use in a safe and proper manner as required by Regulation 17(b). More particularly still what it has come down to is an allegation that the mast was not made of strong and sound materials. The 1st and 2nd Defendants argued that (1) breach of these regulations does not give rise to a private right of action for damages (2) in any event it could not extend to the Plaintiff who was not engaged in cargo handling and (3) the wording of Regulation 17(a) is to be read as though "free from patent defect" qualifies the other requirements so that a breach only occurs if the defect is patent and in this case, it is said that the defect was a latent one.

5. I hold that the regulations do apply and that the 1st and 2nd Defendants were in broach of them.

6. The first proposition derives from the principle in Phillips v. Britannia Hygenic Laundry Co. Ltd. & others⁽¹⁾ as endorsed by the Privy Council in Tan Chye Choo & others v. Chong Kew Moi⁽²⁾ that whether or not a person aggrieved by a breach of statutory duty has a remedy in damages depends on the construction to be given to the statute as a whole with regard to which the fact that the instrument itself provides for penalty in the event of breach is a powerful counter indication. But as the cases make clear there are exceptions, one of them being that where it is the intention of the statute or regulation to protect a class of persons. As put by Lord Kinnear in Butler (or Black) & Anor. v. Fife Coal Co. Ltd⁽³⁾ "when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention."

7. By Regulation 56 an owner who contravenes Regulation 17 commits an offence for which he may be fined up to $5,000 but the regulations are made under Section 80 Sub-section (1)j of the Shipping and Port Control Ordinance which includes among its objects "the safety and protection against accidents of persons employed in cargo handling". On my reading of the regulation, therefore, a cause of action does lie at the suit of anyone injured in the course of cargo handling by reason of some breach of the regulations.

8. Then the next question must be: was the Plaintiff employed in handling cargo? This I have found more difficult. I cannot think that the use of the word "employed" as opposed to "engaged" can have any significance and certainly not such to put the Plaintiff out of court as an independent contractor. Clearly those on deck taking part in the off-loading were "handling" the cargo whether they were required to handle it in a literal sense or not. So I would think would be someone on the quayside guiding it into place even if only by giving instructions. So, too, I am prepared to say, is the driver of the waggon which is actually being loaded at the time. He has brought his vehicle into position to be loaded and may have to move it forwards or backwards from time to time to accommodate the person operating the winch or those who are standing on the waggon flat. But how far back in the chain does this reasoning extend? It must, of course, always depend on the particular facts of the case but where, as here, there is a lorry waiting to be loaded and prepared to move forward at some signal from those in charge of loading and close enough to the actual loading to be affected by breach of the regulations, then I am prepared to hold that the driver of that lorry is a person who for the time being is employed in cargo handling.

9. The last of Mr. Wong's submissions on this turns upon the true construction of Regulation 17(a). He contends, and I agree, that Regulations 17(b), (c) and (d) are not apt. He argues that the juxtaposition of a comma and the words "and free from patent defect"... means that the words free from patent defect qualify each of the foregoing requirements so that, for example, there is no contravention unless the mast was patently not made of strong materials. Authority apart I could not support such a construction. It seems plain to me that the regulations require each condition to be satisfied individually and collectively. But I am content to adopt the approach and reasoning of Lord Wheatley in the Scottish case of McNeil & Anor. v. Dickson and Mann Ltd⁽⁴⁾ dealing with the similar wording of Section 24(1) of the Factories Act 1937.

Even had I taken a different view of the construction of Regulation 17(a) it would not have affected my view that the lot and 2nd Defendants are in contravention because on the evidence which I have yet to review in connection with the allegations of negligence I find that this samson post was neither made of strong and sould materials nor free from patent defect.

Negligence

10. The contract with the owner is based on a quotation dated 20th July 1971. The fifth paragraph is the one relied upon: -

"Owner of vessel should be responsible for the issue of licence, certificate of inspection for cargo derrick, cargo winch and mast. Roller, anchor roller to be supplied by owner of vessel. "

At that date it had not become necessary to have a certificate of inspection for the mast but it did become necessary by 1979 when the mast was satisfactorily tested with a weight substantially greater than that which it was carrying when it broke. The 3rd Defendant attempted to put a gloss on the contract when he gave evidence. Even if I were to accept parol to vary the terms of the written instrument I do not think that what was agreed between the builder and the owner goes any distance towards relieving the builder of his duty towards third persons who might be injured as a result of his negligence. At the very least he would have had to say to the owners; "Look not only is this a second hand mast, as you know, but it is made from two pieces of steel tube which are not strapped together and we have not checked to sec if the weld is good." That the owners were to obtain the certificate of inspection would of course raise the possibility of the particular defect coming to light but not necessarily, as events proved, and there was no understanding that inspection would take place before the vessel was put into commission. I adopt the exposition of principle to be derived from the cases as set out by the learned editor of Charlesworth 7th Edition at 483:-

"the duty of a manufacturer may be said to be to take reasonable care in the manufacture of his product, and failure to take such care will render him liable to any ..... user whose person or property is injured by his product, provided (i) the product causing the injury has the same defect as it had when it left the manufacturer and (ii) the manufacturer should have contemplated that the product would be consumed or used in the same condition as when it left him. "

Insofar as the decision in Dransfield v. British Insulated Cables, Ltd.⁽⁵⁾ conflicts with that statement of principle I decline to follow it. In my judgment the builder was negligent in not investigating the soundness of the joint or, if he did, in not discovering its weakness, or, if he did that also, either by not remedying it or by failing to inform the owner. It was within his contemplation or ought to have been that the vessel might be used without its mast having been first inspected or if it was inspected that the inspection would not show up the unsoundness of the joint; that is enough in my judgment to dispose of the first and second of Mr. Chan's submissions. The third was that some intervening act broke the chain of causation. He relies on the 1st and 2nd Defendants' failure to inspect and some suggestion that the proximate cause of the mast breaking was either a loosening of the stays supporting the mast or a failure to keep them tight. This last suggestion comes from the evidence of Mr. Pearce who postulated that theory as an explanation for the mast breaking when it did. I am not prepared to find on the evidence that the condition of the stays had any bearing upon this accident but even if my view had been different it would not have affected the 3rd Defendant's position visa vi the Plaintiff as I am satisfied that the necessary causal connection exists between the negligence of the 3rd Defendant and the damage which ensued even though there was a concurrent cause in the negligence of the 1st and 2nd Defendants.

11. It follows that the Plaintiff succeeds against all the Defendants. There remains the issue between the 1st and 2nd Defendants and the 3rd Defendant arising out of the Third Party Notice. There is no claim for indemnity by the 3rd Defendant against the 1st or 2nd Defendants.

12. I have reviewed the evidence as to negligence and indicated my views as to the extent to which it has been brought home by the Plaintiff against the Defendants. To my mind, the best opportunity for discovering this weakness lay with the 3rd Defendant at the time of installing the mast. At the same time both the 1st and 2nd Defendants had nine years in which to investigate. Each of the 1st and 2nd Defendants was under a statutory duty to make sure the mast was sound.

13. Doing the best I can I find that the 3rd Defendant was 50% to blame. No distinction is made between the 1st and 2nd Defendants who must share the rest of the responsibility between them and any order in the Third Party proceedings should reflect these findings.

14. Order in terms as agreed by Counsel for all parties.

(1) [1923] All E.R. 127

(2) [1970] 1 All E.R. 266

(3) [1912] AC 149 at 165

(4) 1957 Scots Law Times Reports 364 at 366

(5) [1937] 4 All E.R. 382

Representation:

Mrs. Barbara Kaplan assigned by D.L.A. for Plaintiff

Alexander Wong (Lo, Wong & Tsui) for 1st & 2nd Defendants

Jerome Chan (S.P. Ma & Co.) for 3rd Defendant/Third Party