Stephen Graham Olding v. Singapore Airlines Ltd.

DCPI000145/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 145 OF 2001

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Judgment

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The plaintiff, Mr. Olding, claims damages for personal injuries caused by swallowing glass particles in a soft drink supplied to him by the defendant on one of its aircraft. He pleads negligence and breach of unspecified statutory duty. The defendant admits that the plaintiff was on board its aircraft but denies all else. It further avers that the flight was non-international carriage within the meaning of section 13 of the Carriage by Air Ordinance, Cap. 500 and that therefore the plaintiff's claim is governed by Article 1 of the Warsaw Convention, as amended by the Hague Protocol, and adapted and modified by Schedule 3 to that Ordinance. If the plaintiff suffered injury the defendant denies that the same was bodily injury with the meaning of Article 17 of the Schedule and further relies on the statutory defence provided by Article 20 of the Schedule.

2. The liability of an air carrier is governed by the Carriage by Air Ordinance, Cap. 500 which gives the force of law to the Warsaw Convention of 1929 as amended by the Hague Protocol of 1955, as well as the Guadalajara Convention of 1961. The scheme under these various conventions is for an air carrier to be under strict liability for injury to a passenger subject to the statutory defence provided or to the defence of contributory negligence. In this case, the carriage was non-international carriage for the purposes of the Warsaw Convention and liability is therefore governed by section 13 and Schedule 3 of the Ordinance which contains provisions of the Warsaw Convention, the relevant ones here being Articles 17 and 20. In fact those same provisions are by section 14 and Schedule 4 applied to international carriage also.

Article 17 provides:

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 20 provides:

The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

3. The effect of Article 17 is to displace completely the passenger's rights at common law. Per Lord Hope of Craighead in Sidhu v British Airways [1997] AC 430 at 447F:

The intention seems to be to provide a secure regime, within which the restriction on the carrier's freedom of contract is to operate. Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action.

4. So the injured passenger's claim can only be for bodily injury, and only under the Convention. There is no common law claim. But the plaintiff need only prove that he suffered bodily injury on board the aircraft, and he can recover for it, unless the defendant can set up the defence under Article 20.

5. This has been a retrial. The first trial was before H. H. Judge Carlson on 30 May and 12 and 13 June 2002. He handed down his judgment, in favour of the plaintiff, on 17 June 2002. One of the documents placed before the judge was a copy of a set of hospital notes with a note on it by a doctor, in relation to an X-ray of the plaintiff's abdomen, that "film reviewed likely to be glass particle." Subsequent investigations by the solicitors for the defendant produced the original of the note which showed that the doctor had written "film reviewed unlikely to be glass particle". This was brought to the notice of the judge before the judgment had been entered in the court record or the order perfected, and he set aside his judgment and ordered a retrial.

6. It is not in dispute that the plaintiff was a passenger on the defendant's flight 002 from Singapore to Hong Kong on 26 September 2000. With him was his secretary, Mrs. Cecilia Choi. Their tickets were from Bangkok to Hong Kong via Singapore with an open return to Singapore. Apparently the plaintiff had previously travelled with the defendant from Sydney to Bangkok, with transit in Singapore; for reasons beyond her control Mrs. Choi had been delayed in Singapore for some days and had only joined him later. He had demanded compensation of the defendants for leaving his secretary stranded for five days in Singapore and they had issued the tickets by way of such compensation.

7. The plaintiff's evidence is that in the course of the flight a member of the cabin crew had supplied a plastic cup of pineapple juice to Mrs. Choi. She had drunk some of it, but had not finished it. As the aircraft was taxi-ing, after having landed at Hong Kong International Airport, and while passengers were getting up from their seats for disembarkation, the plaintiff took the cup from the seat-back tray on which it stood and quickly swallowed the juice which remained in it. He felt sharp lumps going down the back of his throat. He looked in the bottom of the cup and saw one or two glass fragments in the bottom, about four or five millimetres in size. He showed them to Mrs. Choi and called out to a male flight steward who was standing in the galley nearby, and told him that there was glass in the cup. The steward took the cup and asked if the plaintiff was all right; the plaintiff said that he thought he was. The steward spoke to a stewardess who picked up a telephone and spoke on it; the plaintiff assumed that she was reporting the incident to someone. This steward was not the steward called by the defendant as a witness in both trials.

8. No further action was taken on the flight. After landing, the plaintiff found an item of baggage missing. He reported it to a member of the ground staff who was looking after the defendant's passengers. He did not say anything to her about the swallowed glass; nor she to him. He went to his hotel. At first he said that that night he felt unwell with stomach cramps and rectal bleeding, but from cross-examination it seems that he went to bed that night, and felt the symptoms the next day. In any event, he says that he had stomach cramps, and in the afternoon or early evening of the following day he started to pass black, tarry stools. He tried the old remedy of eating dry bread to shift something which is stuck in the digestive tract, and made some inquiries about insurance and found that he was only covered in Australia, but he did not seek medical attention that day.

9. On the following day, 28 September 2000 the plaintiff went to the Tang Siu Kin Hospital where he was seen by a Dr. Yuen. Admission was recommended, and he was given forms to fill in, but when he said that he did not have a Hong Kong identity card, he was told that he would have to deposit $20,000.00. His wallet had been stolen in Thailand, so he had no credit cards. He tried to contact the defendant to see if he could get some assistance, but could not get through. Eventually he left the hospital and returned to his hotel.

10. The plaintiff says that he continued to feel ill, suffering from stomach cramps and passing black, tarry stools. He remained in his hotel room. He had no energy; it was an effort to walk to the bathroom. He felt better after ten days to a fortnight, and was back to his old self after three weeks. However because he was ill he was unable to attend to his business and lost a contract for the sale of glass from which he expected to make a profit of about $500,000.00.

11. Ultimately, the plaintiff managed to contact the defendant's representatives. He was referred by them to a Dr. Innes and a Dr. Lam Kam Hing. I will deal with their reports below.

Medical Evidence

12. The plaintiff called Dr. Wong Yau Tak, who is the head of the Accident and Emergency Department of Tang Siu Kin Hospital. He did not see the plaintiff himself, but it was his duty to screen X-ray reports, and he did so in this case. He produced the medical notes relating to the plaintiff's examination at the hospital on 28 September 2000, on which he had written his own comment after screening, and he explained the notes.

13. From the notes it appears that the plaintiff was first seen by a nurse who assessed his case as semi-urgent and took his history. He was seen by Dr. Yuen who recorded that the plaintiff had no bleeding, no "coffee-ground" vomit, no dizziness or shortness of breath. He was afebrile with no pallor, his chest was clear and his air entry normal. His cardiovascular system was normal and his heart sounds normal with no murmur. His abdomen was soft with no tenderness, guarding or rebound and bowel sounds could be heard. Rectal examination showed no melaena, i.e. black, tarry stool. Dr. Yuen also drew a diagram showing the area where the plaintiff complained of tenderness, in the middle of the abdomen. He recommended admission to the surgical ward and that the patient be given "nil by mouth" and put on a saline drip preparatory to admission.

14. The plaintiff was sent for an X-ray. Dr. Wong says that Dr. Yuen would have gone off duty at 6 p.m. The notes show that a Dr. Chan told the plaintiff that admission was recommended. However the plaintiff left the place where he had been waiting; his name was called later but ultimately the case was signed off by the doctor on the basis that the patient had left.

15. Later the X-ray came in and Dr. Wong screened the case. The X-ray, which was of acceptable quality, showed a small pelvic opacity over left sacro-iliac joint. Dr. Wong's view was that it was unlikely to be glass particle; it was ovoid or roundish. He thought it was a calcified lymph node. Glass could be expected to show a sharp rim. Accordingly Dr. Wong wrote his comment on the notes "film reviewed unlikely to be glass particle". He further said that he saw that Dr. Yuen had recommended that the plaintiff be called back for re-assessment but a nurse told him that attempts to contact him had failed; so he advised that the notes be left open for 2 more days, to see if the plaintiff would return.

16. Dr. Wong said that from his knowledge gleaned from the relevant literature, a glass particle would have an average chance of one in four of being detected by X-ray. Whether it was radio-opaque would depend on the silica content in the glass, and this varied; the figure he gave was an average figure for all types of glass. He said ingestion of glass could cause tarry stools but that many other things, including alcohol, drugs, aspirin, ulcer or cancer could cause them also. A swallowed object would take 48 to 72 hours to go through the digestive tract, so it would be possible for tarry stool still to be found by the examining doctor if the plaintiff had swallowed glass.

17. Dr. Yuen wrote a report dated 26 June 2001 which repeated the findings shown on the notes referred to above. The plaintiff was also seen by Dr. F. K. Innes and Dr. Lam Kam Hing on 9 October 2000 at the instance of the defendant. Dr. Innes said that his blood pressure and haemoglobin were normal, but he was referred to Dr. Lam for gastroscopy. In fact Dr. Innes was given the X-rays of another patient in error, which were normal, but he later said that even though they were normal he had referred the plaintiff to Dr. Lam, a surgeon, for further investigation because of the symptoms of black tarry stools which suggested gastro-intestinal bleeding, and because of the well-known fact that glass may or may not show up on an X-ray.

18. Dr. Lam said that the plaintiff appeared to be under stress from the incident and the possibility of having pieces of glass in the intestine. He found no pallor, and a mild degree of tenderness in the centre of the abdomen, over an ill-defined area. A rectal examination was done, but no mass was felt and brown stool was detected. A gastroscopy was performed but no foreign body was found. The patient was told that this test did not rule out the possibility of a foreign body in other parts of the intestine, and if he felt unwell further tests should be done. He was prescribed diazepam because he was anxious and worried.

The Altered Document

19. As I have indicated, on the copy of the notes from Tang Siu Kin hospital which were put before H. H. Judge Carlson Dr. Wong's comment appeared to read "film reviewed, likely to be glass particle." The plaintiff's evidence on this was that he had obtained a copy from the hospital and had given it to the solicitor then acting for him, who had given him back either the original or a copy, he did not know which. He could not remember having sent the copy by fax to the defendant's solicitors, though that in the defendant's bundle, which was before me and which had been before Judge Carlson, bore to have been sent from the plaintiff's fax machine or computer on 6 May 2002. He simply did not know and could not explain how the word came to read "likely" rather than "unlikely"; or who, if anyone, had altered it.

20. From cross-examination it appears that Judge Carlson had asked the plaintiff to obtain a certified copy of this document during the adjournment after the first day of the trial; he had not been able to produce it, because he had been told by a medical officer that it would take two to three weeks, and there simply was not time. He had not asked for another uncertified copy. He had told Judge Carlson all this at the resumption of the trial.

Evidence for the defendant

21. The defendant called Mr. Bukoh Seng Koon, a flight attendant. In fact at the first trial, the defendant had wished to produce Mr. Bukoh's statement; the plaintiff had asked for him to be made available for cross-examination; and that was why there was an adjournment after the first day. It is the plaintiff's evidence that whoever was the male steward to whom he handed the plastic cup with the glass fragments in it, that was not Mr. Bukoh.

22. Mr. Bukoh said that on 26 September 2000, he was on duty in the economy class cabin of Flight SQ 002. He was the only male attendant on duty there; there were eight cabin crew in the economy cabin, and all but he were female. There were two galleys, back to back. Four attendants served the after section of the economy cabin from one galley, and four the forward section from the other. He had no particular recollection of who was on duty besides himself, but he had checked the relevant flight rosters and had found that all the other attendants were female.

23. He said that if someone had given him a cup with glass in the bottom he would have brought the cup and the glass to the attention of his leading steward, who would take the matter from then on and would usually put it in a report and check if the passenger needed additional help. The report is the Voyage Report which is used to record even the most trivial of incidents.

24. Mr. Bukoh said that no glasses were used in the economy section, only clear plastic cups; one such was produced. The only glass in that section would be the bottles on the trolley. The only drinks on the trolley would be champagne, beer and orange juice. If a passenger wanted any other drink it would be taken from the refrigerator in the galley and there poured into a plastic cup and then brought to the passenger.

25. He said that pineapple juice would normally come from a ring-pull can obtained from a manufacturer called Lee's, in Singapore; one such can was produced. The airline had been using that type of canned pineapple juice throughout the six years he had been working for it. The can holds more than a plastic cup, but the passenger does not get the can as well; the opened, half-empty can is put back in the refrigerator, and may be used if someone else asks for pineapple juice. It would have no lid on it. Sometimes juice from a carton would be used if cartons were loaded at some other aiport, but any opened can or carton would be cleared out of the refrigerator at Singapore and new, unopened Lee's cans would be put in.

26. He also said that he had never known of any breakages in the economy class; in effect there was nothing to break, though glasses used in the business class were broken from time to time. He had once had a report of a hair in food, and once a report of a porcelain chip in food, which would have come from the dish that the food came in.

27. The defendant has also produced a statement of one Cheng Kek Nguang, the in-flight supervisor on the flight who says that no complaint was reported to him, and there was no record of the incident complained of in the Cabin Voyage Report. There are also two statements from one Pamela Fan Chi Mei, the member of ground staff who dealt with the plaintiff's missing baggage complaint. She said that the plaintiff appeared drunk then; this was something which, I believe, was given some prominence in the earlier trial but not before me. The plaintiff said that he had had two beers and a whisky on the flight but that is neither here nor there. The effect of this statement is simply to confirm what is not in dispute namely that the plaintiff did not make any complaint to ground staff of glass in pineapple juice.

Evaluation

28. The plaintiff has represented himself in both trials. He is a dogged, determined individual. I have no doubt that he is convinced that he swallowed glass, and suffered abdominal symptoms afterwards. He was no doubt convinced of it when he presented to Dr. Lam, who gave him medication because he was anxious and worried. He is also convinced that the defendant has throughout tried to "cover up" the incident of which he complains.

29. Unfortunately, however, there is before me only the plaintiff's own word that the incident happened. His evidence is inconsistent on some points as to exactly how it happened. Some points are simply unlikely; for instance that the seat-back tray was in the down position while the aircraft was landing or taxi-ing; it is common knowledge among air travellers, a sizeable proportion of the population in this day and age, that on any reputable airline there is an announcement about seat position, trays and seat belts before landing, and the cabin crew members check that the instructions are followed. Further there is really no good explanation as to why he waited two days before seeking medical attention. If glass is swallowed there is a potential danger of a puncture to the stomach or bowel, with serious results. It is not something to be treated lightly.

30. The medical evidence is at best equivocal. There was apparently nothing objectively wrong with the plaintiff when he saw Dr. Yuen. All the physical signs recorded were normal. In particular the abdomen was soft and non-tender; bowel sounds were normal, per rectal examination was normal; and no melaena, i.e. tarry stool was found. The possibility of glass in the digestive tract could not be ruled out, and that was why admission was advised; but for whatever reason the plaintiff was not admitted, and so we do not have any better evidence than what appears in Dr. Yuen's report and notes. The reports of Drs. Innes and Lam are likewise equivocal; they do not rule out what the plaintiff complains of but there is nothing in them to support it.

31. The original note by Dr. Wong likewise does not rule out the presence of glass in the abdomen. All he was saying is that what he could see on the film did not appear to be glass; but he says in effect that there could have been glass there, which was not visible on X-ray.

32. If that were all, it would be possible to accept the plaintiff's evidence. But his major problem now lies in the false, or altered copy of the note by Dr. Wong. We know that it came from the plaintiff; it was put in the trial bundle for use in the first trial. But the plaintiff cannot explain it. He simply says that he does not know how it came to be like that. He has suggested that it might have been altered by accident, in that something might have got on to it while it was being copied, which has to be a very remote possibility. The other writing on the copy is clear. He has suggested that it was altered by his own former solicitor or by the defendant's solicitor; suggestions which are too far-fetched for serious consideration.

33. I am left with a false document which only the plaintiff might be able to explain and he says he cannot explain it. The obvious inference in the absence of explanation is that he has tried to "gild the lily" but the attempt has backfired. I do not say it is the only inference which may be drawn; that is a matter for the criminal courts; but it is the most likely inference. In the circumstances the plaintiff's evidence must be treated with suspicion. It might be possible to regard his evidence as credible in spite of that suspicion if corroboration could be found, but unfortunately there is none. His witness, Mrs. Choi has not given evidence before me and there is no other independent corroboration of what he says.

34. Looking at the evidence from the defence side, Mr. Bukoh seemed a straightforward and honest witness. It is true that he was not interviewed or asked for a statement until late 2001 or early 2002 but he would surely have remembered a report if one had been made. The plaintiff of course says that Mr. Bukoh was not the steward, it was someone else; but there seems to be no reason to doubt that Mr. Bukoh was the only male steward in the complement of eight cabin crew in the economy section. I suppose there may be a remote possibility that another male steward had come in from another section, but in any event if a complaint was made, it is very difficult to see why it would not be followed up. Mr. Bukoh says that crew are encouraged to report, and not penalised for doing so. Further the defendant is a major Asian airline; its liability for passenger claims is limited by international convention and statute and it presumably carries insurance against such claims. If a complaint was made, other passengers would have been in a position to see and hear it being made. Any notional advantage to be gained by a "cover-up" of the complaint would be outweighed by the adverse publicity which the airline would suffer if it failed. Airlines are notoriously conscious of publicity; their advertisements are inescapable by the newspaper reader or television viewer.

35. For these reasons I cannot be satisfied on the balance of probabilities that the plaintiff did swallow glass in the pineapple juice or suffer bodily injury thereby.

The Statutory Defence

36. Though it is not strictly necessary in the light of the finding above, I will deal with the statutory defence, as interpreted by the United Kingdom Courts. Decisions on the interpretation of Article 20 in relation to international carriage are relevant.

37. In Swiss Bank Corporation and Others v Brink's-Mat Ltd and Others [1986] 2 Lloyd's Rep 79 Lord Bingham considered the earlier authorities and interpreted Article 20 thus:

(b) Article 20

Article 18 (1) establishes the prima facie liability of Swissair/KLM for the loss of the SBC and UBS consignments. To defeat this liability they relied on art 20:

The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

It was argued for Swissair/KLM that "impossible" should be construed as meaning "not reasonably possible". I do not accept this. "Impossible", even if it cannot be read with complete literalness, is a very strong word. It envisages damage which was inevitable, or at least which no human precaution or foresight would have prevented. This was not the case here. After the robbery KLM constructed a secure area within their warehouse. It might have been inconvenient and difficult to do this before the robbery, but I would not be justified in holding that it was impossible.

It was also argued for Swissair/KLM that "all necessary measures" means "all reasonably necessary measures". This construction was accepted by Mr Justice Chapman in Goldman v Thai Airways International Ltd, (31/3/81, unreported). It also finds support in a judgment in an opinion of Judge Conner sitting in the US District Court for the Southern District of New York, Manufacturers Hanover Trust Company v Alitalia Airlines, 429 F Supp 964 (1977):

"Both plaintiff and defendant have devoted considerable efforts to explain and support their respective constructions of the phrase "all necessary measures". But, in the end, a common-sense reading serves best. Thus, notwithstanding plaintiff's argument to the contrary, this Court concludes that the phrase "all necessary measures" cannot be read with strict literality, but must, rather, be construed to mean "all reasonable measures". After all, there could scarcely be a loss of goods -- and consequently no call for operation of Article 20 -- were a carrier to have taken every precaution literally necessary to the prevention of loss. Nor, on the other hand, may a carrier escape liability under Article 20, as Alitalia suggest, by demonstrating no more than its recourse to some -- as opposed to all -- reasonable measures. In short, Article 20 requires of defendant proof, not of a surfeit of preventatives, but rather, of an undertaking embracing all precautions that in sum are appropriate to the risk, i.e, measures reasonably available to defendant and reasonably calculated, in culmination, to prevent the subject loss."

I respectfully agree with the way the matter is put by the learned Judge. If, as I think, he interprets the article as imposing a somewhat higher duty upon the carrier than a mere duty to take reasonable care, I agree with that interpretation also. In Chisholm v British European Airways, [1963] 1 Lloyd's Rep 626, Mr Justice Atkinson (as he then was) was attracted by that approach, but felt bound to follow and adopt what was said by Lord Justice Greer in his dissenting judgment in Grein v Imperial Airways Ltd, (1936) 55 LL Rep 318; [1937] 1 KB 50. The policy of the Convention is, however, to impose a prima facie liability on the carrier, subject always to the limitation in art 22 unless the carrier loses that protection by virtue of art 25. The carrier can escape liability altogether by proving that it was impossible for him to take measures to avoid the damage. The alternative means of escape, that he took all (reasonably) necessary measures to avoid the damage, in my view requires him to prove more than that he was not negligent. That is the price he pays for the limitation of liability.

38. In the present case, on the evidence of Mr. Bukoh, the pineapple juice in the plastic cup must have come from a can which was loaded unopened at Singapore. It might have been poured fresh when the can was opened, or poured after the can had been left open in the refrigerator, but there is nothing to suggest that glass could have fallen into an opened can in the refrigerator, for there was no glass in the cabin except for the bottles which were on the trolley. So we must take it that the glass, if glass there was, came from the can, or was perhaps in the plastic cup when it was empty though again there is nothing to suggest that glass could have got into the cup in the galley. Therefore the most likely conclusion is that if there was glass it came in the can, from the juice manufacturer.

39. The plaintiff argues that if the defendant must prove more than that it was not negligent, it has not done so, because there is no evidence before me of any kind of quality control exercised by the defendant over the pineapple juice or indeed other provisions supplied to it. It is true that there is no evidence as to what steps the defendant took to check that there was nothing wrong with the provisions supplied to it; but it is difficult to see what they were expected to do, in the case of canned drinks. Such drinks come from the supplier in cans; even if one takes random samples of them it will not guard against a foreign body in an individual can. Perhaps they could have put all fruit juices through a sieve when pouring them out of the container though I doubt that this would be regarded as a "necessary" measure unless there had been some history of foreign bodies in drinks supplied by a particular supplier.

40. If we go back to the Manufacturers Hanover dictum cited with approval by Lord Bingham, the defendant must prove that it took "precautions that ... are appropriate to the risk, i.e., measures reasonably available to defendant and reasonably calculated... to prevent the subject loss". It is difficult to see what those precautions should be, when one looks at canned drinks. The risk of finding a foreign body in a canned drink in this day and age is very slight. It is so slight that I do not think that even the most prudent airline could be expected to have its cabin crew sieve, or even individually check, every drink for foreign bodies.

41. In my view, therefore, if the plaintiff had been able to establish on the balance of probabilities that there had been glass fragments in the pineapple juice which he drank and that they caused him bodily injury, the defendant could have escaped liability by the application of Article 20.

Quantum

42. The plaintiff could in any event only recover damages for bodily injury, i.e. for pain, suffering and loss of amenity. Economic loss is not provided for. Per Lord Hope in Sidhu at page 448:

It would be largely destructive of the system which this chapter seems to have been designed to lay down if a passenger were to be able, for example, to maintain a claim of damages for non-bodily injury, for loss of or damage to the personal possessions which he had with him inside the aircraft or for economic loss, outside the conditions and limits set by the Convention while maintaining a claim under the Convention for the bodily injury.

43. I do not think it necessary for me to comment on the award made in the first trial or to substitute any award that I might have made for pain, suffering and loss of amenity on a finding of liability. I will only say that as is clear from the case of Sidhu, damages for economic loss could not be recovered, even if they had been proved, and in this case there was a dearth of evidence of such loss apart from the plaintiff's own word for it.

Conclusion

44. It follows that the plaintiff's claim is dismissed. I will hear the parties as to costs.

Representation:

Plaintiff, acting in person

Mr. Joanathan Frasher instructed by M/S Stevenson, Wong & Co. for Defendant

DCPI145/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 145 OF 2001

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J U D G M E N T

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1. On 26 September 2000 the plaintiff, Mr Stephen Olding, was a passenger on the defendant's flight SQ002 from Singapore to Hong Kong. He was accompanied by his friend, Miss Cecilia Choi. During the course of the journey she had ordered pineapple juice. By the time the aircraft had landed at Hong Kong International Airport she had only consumed about a quarter of it. The plaintiff decided to finish it so that he might put the plastic container that it had been served in into the seat pocket of the seat immediately in front of the one that he had occupied for the journey prior to disembarking.

2. As he drank the juice he says that he felt that he had swallowed something sharp. He looked into the remaining contents of the container and saw what appeared to him to be fragments of glass. He felt these fragments with his finger and this served to confirm his suspicion that he might have swallowed glass particles. Subsequently he felt unwell and attended a hospital.

3. He now brings this action claiming damages for personal injury, pain and suffering and he also claims damages for related pecuniary losses which I must refer to more fully in due course.

4. The claim is vigorously resisted by the defendants who are an airline of the highest repute. The plaintiff has represented himself throughout with the result that his case has not had the attention to detail and indeed to the sort of evidence that perhaps ought to have been called and I have no doubt would have been called had he been represented by competent solicitors.

5. That having been said, he has given evidence himself. He has called Miss Choi, his travelling companion, and he has placed before me the medical notes of his examination at Tang Shiu Kin Hospital which he attended on the afternoon of 28 September, 48 hours after his arrival at Hong Kong, by which time he had been feeling unwell for some hours.

6. Much of this case turns on the credibility of the plaintiff and of Miss Choi and so I must attend to their evidence with some care.

7. It is necessary to begin with the plaintiff's and Miss Choi's departure from Sydney some weeks beforehand. He was due to fly first to Thailand to attend to business there, then take a short holiday before continuing his journey to Hong Kong. He and Miss Choi boarded one of the defendant's flights at Sydney bound for Singapore which was delayed on departure. As a result, the connecting service to Bangkok was missed. This necessitated a night at an hotel in Singapore in order to take the ongoing flight the next day.

8. On checking in the next morning the defendant's ground staff at Singapore refused to allow Miss Choi to board the flight. They said that as the holder of a certificate of identity she required a visa for entry into Thailand. In fact they were mistaken about that but they could not be persuaded to change their mind. The plaintiff flew on to Bangkok leaving Miss Choi in Singapore to obtain a visa from the Thai Embassy. In the event she remained in Singapore for a number of days attending to this and then joined the plaintiff at Bangkok. This incident greatly upset the plaintiff and he complained to the defendant's office in Thailand. They appear to have accepted that they were wrong not to have allowed Miss Choi to board at Singapore and by way of showing good will issued free return tickets to the plaintiff and Miss Choi from Bangkok to Hong Kong routed via Singapore.

9. It is by means of these tickets that they flew out to Hong Kong on 26 September. At Hong Kong the defendants then lost the plaintiff's suitcase. Given that unhappy series of events it has been put to the plaintiff that by the time that he eventually left Hong Kong Airport on 26 September to make his way to his hotel he was ill-disposed towards the defendants and that this has coloured his attitude and his evidence. I was anxious to enquire of Mr Watkins who appears for the defendants whether it was his case that the plaintiff was so ill-disposed towards his clients that he had invented the allegation that he had swallowed glass fragments contained in the pineapple juice with a view to getting his own back on them. Wisely, in my judgment, Mr Watkins does not go so far as to suggest anything of this sort. I will return to what he says probably happened when I come to the end of my recitation of this sorry tale.

10. As I indicated at the outset, the plaintiff is convinced that he must have swallowed glass fragments contained in the juice because he felt he had ingested something sharp and that on inspecting the contents of the container he saw and felt what appeared to be glass fragments at the bottom. By then the aircraft had taxied to the terminal building and the passengers were on their feet and in the process of disembarking. He and Miss Choi were accommodated in the rear economy cabin. He called out to a passing steward and told him what had happened and he gave him the container. He says the steward looked into the container and asked him if he was all right. Still a little confused by what had happened he told him, "I think so". The steward then removed the container and took it into the galley.

11. This was seen by Miss Choi who has supported what the plaintiff has had to say on this matter. Thinking that they had done enough to draw this to the steward's attention, they then disembarked. After they had got to the arrival hall the plaintiff realised that his suitcase had gone astray. He approached the airline staff where he was attended to by a Miss Pamela Fan, one of the defendant's ground staff. She was called by them for two purposes. Firstly to say that the plaintiff made no complaint to her that he had swallowed glass fragments whilst consuming a drink supplied by the airline during the flight and, secondly, that he appeared to be drunk. He appeared confused, had difficulty standing up properly and appeared incapable of filling out the missing luggage form without detailed assistance from her.

12. The plaintiff accepts that he made no complaint to her about swallowing glass. His explanation is that he had already sufficiently drawn the matter to the cabin crew's attention and that his present concern was his suitcase. There was no reason to repeat the complaint to her. As to whether he was drunk, he accepts that he had had a couple of beers and a whisky on the flight and that he was tired when he had boarded the plane at Bangkok so that he was not at his sharpest. Miss Choi has also given evidence that the plaintiff does like to drink when he is not working. The effect of her evidence is that he is a seasoned social drinker. On this issue I find that the plaintiff was by a combination of drink and tiredness under the influence of alcohol and certainly may have given the impression of being drunk as described as Miss Fan. The plaintiff himself has been perfectly frank in this regard.

13. It is from this evidence that Mr Watkins really puts his case that the defendant's condition was such that he was confused about what happened when he consumed the pineapple juice which of course was not his drink of choice. Whilst he thought he had ingested glass and that he thought the fragments that he touched at the bottom of the container were indeed glass, he was confused and quite wrong about that.

14. On this issue the defendants have called the steward assigned to that part of the economy section, Mr Bukoh Seng Khoon. He was the only male steward working in that part of the cabin. The plaintiff upon seeing him enter the witness-box told me that this was not the person to whom he directed a complaint and showed the plastic cup to. Not surprisingly therefore Mr Bukoh's evidence was that no such complaint was made to him and that he was not aware of any being made to his colleagues on the flight. He gave evidence of a general nature as to the procedures which the defendants had in place as to the handling and recording of occurrences of this type.

15. If something of this sort was reported to the crew, all the details would be written down in the cabin voyage report. He said the airline took care to ensure that such matters were recorded and the crew were encouraged to do so, it would not be something that would be held against them and that the evidence, the container and its contents, would be preserved for investigation. I also have a statement from Cheng Ken Nuang, the in-flight supervisor, who confirms that there is no record of this incident having been reported to her for entry into the voyage cabin report.

16. Reliance is placed upon this evidence by Mr Watkins as demonstrating that the incident did not occur. Mr Bukoh has also explained that even though a complaint might be made as the passengers were disembarking, it would still be treated with the same degree of seriousness and recorded in the same manner. At this stage therefore the defendants rely on the absence of a record of a complaint in circumstances where one might expect a note to have been made had a complaint been forthcoming and further that the most likely individual to have received such a complaint is not the one to whom the plaintiff says he spoke to. This, of course, in the face of the plaintiff's and Miss Choi's evidence to the contrary.

17. From this I turn to the medical evidence.

18. The plaintiff says he began to feel unwell a few hours later. He tried to speak to the airline but could not get through directly and spoke to their ground agents, Cathay Pacific Airways. They were not able to provide much assistance and his condition deteriorated. He felt queasy and took to his bed. The following day and the day after the 28 September his condition, if anything, worsened and he was anxious because he was convinced that he had swallowed glass fragments. He feared internal bleeding and the potentially serious consequences of that. He also passed tarry (dark) stools which made him even more concerned.

19. All of this evidence is confirmed by Miss Choi, even as to the colour of the stools. In view of the fact that he was still feeling ill on the afternoon of the 28th, 48 hours after the alleged consumption of glass fragments, with Miss Choi's encouragement and assistance he got himself into a taxi and went to Tang Shiu Kin Hospital. That hospital's reports are at pages C28 and C29. Almost certainly had the plaintiff been represented by solicitors arrangements would have been made to call at least two of the doctors who examined him to explain their findings, particularly Dr Wong, who I presume is a radiologist and who reviewed the plaintiff's X-ray on 4 October 2000 at 1705 hours (see page C28, right-centre reading across the page).

20. He has said "film reviewed likely to be glass particles". To this finding I must make further reference presently. At the hospital his complaint that he had ingested glass fragments was recorded and the doctors' investigation was therefore directed to this. The notes record that "lower abdomen cramping this morning associated with tarry stool, bleeding". Dr Yuen who conducted the examination has provided a letter at C29 which records his findings. It would appear that his medical condition was normal and that the X-rays were normal. He has also recorded that the plaintiff then absented himself from the hospital. The plaintiff has explained that due to the nature of his complaint Dr Yuen had told him that he should remain in hospital at least overnight for observation. He was then informed that he would have to pay a deposit of $20,000 which he did not have. His wallet had been stolen in Bangkok, together with his credit cards, which he had no time to replace.

21. And so he took himself back to bed in his hotel room to await developments. His condition did not improve. Subsequently he got in touch with the defendant's office and told them what had happened to him. They asked him to see Dr Frank Innes, a medical practitioner retained by them. Dr Innes's report is at C32. Dr Innes performed all the appropriate tests including X-ray examination and pronounced that all the findings were normal but given the nature of the plaintiff's complaint he referred the plaintiff that same day to Professor Lam for a gastroscopy.

22. Before I turn to Professor Lam's report I should observe that a mistake appears to have occurred over the labelling of the X-ray which Dr Innes examined (see page 32A) so that there is no certainty that the X-ray seen by Dr Innes was in fact that of the plaintiff. To this extent therefore I must ignore Dr Innes's comments about the X-ray that he examined.

23. Professor Lam's report is at page C31. He performed a gastroscopy. No abnormality was found in the oesophagus, stomach or duodenum. Professor Lam has observed that this test did not rule out the presence of a foreign body in other parts of the intestine. On examination Professor Lam found the plaintiff to be under stress from the incident. He had no pallor, by which I assume he means that the plaintiff was pale. There was a mild degree of tenderness in the centre of the abdomen over an ill-defined area. A rectal examination was performed and found to be normal.

24. Because the plaintiff was anxious and worried he prescribed diazepam, a tranquilliser, and told him that if he felt unwell further tests needed to be done. As to the absence of any physical signs of glass fragments by 9 and 10 October the plaintiff has made the perfectly good point that by then anything ingested on 26 September would have passed through his system.

25. This therefore leaves the review of the X-ray by Dr Wong on 4 October, I assume as part of the Tang Shiu Kin Hospital's procedures, with the comment "likely to be glass particle", this referring to the X-ray taken on 28 September.

26. That concludes the material evidence on the main issue as to whether the plaintiff ingested glass fragments during the flight whilst drinking what remained of Miss Choi's pineapple juice.

27. As I indicated, this largely falls to be determined by the view that I form of the plaintiff and Miss Choi's credibility but of course in doing so I must have regard to the evidence as a whole, including what the plaintiff has had to say on the question of quantum where he has been criticised by Mr Watkins for grossly inflating his claim. In coming to a decision on this aspect I have had regard to the whole of the evidence in the case.

28. What of the plaintiff's credibility? He is a technical man, an expert on the production of glass products and it is this work that had brought him to Hong Kong. He did not tell me whether he has a university degree in this field. I presume that he has not. I mention this because in assessing his demeanour and the content of what he said in evidence, I found him to be a rather unsophisticated individual and in saying that I do not wish to appear or mean to be gratuitously unkind about him. He is originally from Wales but has lived in Australia for some years now and has acquired something of that country's accent.

29. I am bound to say that I found him perfectly straightforward as a person, although by now one who is no particular fan of the defendants. On all the evidence he has persuaded me on a balance of probabilities that the incident occurred in the manner that he described. In coming to this view I very much bear in mind that the immediate past history of his travels with the defendants and the loss of his luggage might well have provided him with a motive to exaggerate or indeed invent this account. The potential for confusion is also there given his consumption of alcohol on the flight and his tiredness. I was impressed by the fact that he did not try to hide this from me. His evidence is supported by Miss Choi. She was neither tired nor drunk. She was a perfectly straightforward person.

30. She is from Hong Kong but now based in Australia and she speaks English well and she has given her evidence in English. She saw what appeared to be glass fragments at the bottom of the cup. It had been suggested that these could have been ice but I accept her evidence that she does not take ice in drinks. I have also had regard to Mr Bukoh's evidence that pineapple juice only comes in paper cartons or tins. It is not dispensed from glass bottles. I am also conscious of the fact that there is no evidence to show how the glass fragments would have got into the plastic cup into which the pineapple juice was poured. To do so now would be pure speculation.

31. As to whether such an incident ever occurred I am also very conscious of the fact that there is no record of a complaint having been made to the cabin crew and I have considered, given the procedures which this airline has in place, whether this might indicate that no such complaint was made. I also have in mind that this flight, according to Mr Bukoh, had four male flight attendants. Although assigned to a particular area of the cabin, there is no prohibition on them moving from one section to the other, particularly after the aircraft had landed and come to a complete halt and persons would therefore be able to move about.

32. The next question that I have considered is why therefore did the steward to whom the complaint had been made not recorded it? The exchange, according to the plaintiff, was that he said he thought that he might have swallowed some glass and upon being asked by the steward if he was all right he said "I think so". The cup was then removed and nothing further was done about it. The steward therefore acted contrary to the airline's regulations in not making a record. Is this likely?

33. Common human experience tells one that such breaches of internal company rules of this type do happen from time to time. This is what occurred on this occasion. I am satisfied that the steward concerned, on the plaintiff telling him that he thought that he was all right, decided to remove the cup and thought nothing more of it, especially as the flight was over and everybody was in the process of disembarking.

34. Next I accept the plaintiff's reasoning for not making a further complaint to the ground staff. He was busy dealing with his lost bag and at that stage was not feeling unwell, save for the effects of drink and tiredness, neither of which, I am satisfied, was sufficiently severe to cause him to be confused about the ingestion of a sharp substance and seeing fragments in the cup.

35. In any event, all of this is corroborated by Miss Choi whose evidence I am prepared to accept. Lastly, the plaintiff gets support for his case from what followed on 28 September. He was unwell. I accept that, and Miss Choi has also said so and I accept her evidence. He passed tarry stools and as to this the plaintiff is also corroborated by Miss Choi. The Tang Shiu Kin Hospital X-ray when reviewed by Dr Wong on 4 October shows evidence of a likely glass particle. This presence of independent evidence, although by no means absolutely conclusive by itself, the words used by the doctor here were "likely to be glass particle", assumes particular weight because it has the effect of supporting the whole thrust of what the plaintiff and Miss Choi have had to say on this issue.

36. The evidence of Professor Lam is also persuasive in the sense that it shows consistency on the part of the plaintiff in his report of his symptoms and as to how those symptoms were caused. On 9 October the professor found the plaintiff to be pale and anxious so that he prescribed diazepam and told him to return for more tests if he continued to feel unwell.

37. On all this evidence I am satisfied that the plaintiff has carried the persuasive burden on a balance of probabilities. I find that defendant's cabin staff had served Miss Choi with a pineapple juice which contained glass fragments, some of which the plaintiff ingested when he decided to finish her drink but still leaving some further fragments at the bottom of the cup.

38. The next issue to decide is whether this amounts to negligence by the defendants. Mr Watkins I think quite rightly has not sought to argue otherwise. Clearly they owe their passengers a duty of care not to serve them drinks containing potentially harmful substances, such as particles or fragments of glass, as was done on this occasion. The duty of care in such circumstances must be a high one. Insufficient care had been taken on this occasion to ensure that this did not happen. It was negligent not to have done so. I find the particulars of negligence pleaded by the plaintiff proved.

39. Whilst I have found negligence of the requisite degree present on this occasion, I wish to expressly say that an isolated incident of this sort should do nothing to tarnish the high and well-earned reputation of these defendants. Even with the best run organisations, and these defendants I am sure are such an organisation, mishaps of this kind will from time to time occur. I wish to say this because if this case receives widespread publicity, and it might, it should be reported fairly and accurately and the remarks that I have just made should form part of any such report.

40. Negligence having been proved, I now need to turn to the amount of damages the plaintiff would be entitled to recover. In this regard, I should now pay attention to the terms of the re-amended defence. Paragraphs 3 and 4 are relevant.

41. Paragraph 3: "It is further averred that the carriage of the plaintiff on the defendant's flight SQ002 aforesaid was non-international carriage within the meaning of section 13 of the Carriage by Air Ordinance, Cap. 500 "the ordinance", and in the premises Article 1 of the Warsaw Convention as amended by The Hague Protocol (the amended Warsaw Convention) as adapted and modified by Schedule 3 of the ordinance governs the plaintiff's claim herein. Paragraph 4: If, which is denied, the plaintiff suffered injury on flight SQ002 aforesaid it is denied that the same was bodily injury within the meaning of Article 17 of Schedule 3 of the ordinance."

42. Mr Watkins's first point is that this flight falls to be considered as non-international carriage within the meaning of section 13 of the Carriage by Air Ordinance "the ordinance", which is perhaps a surprising submission given that the flight involved a journey from Bangkok to Hong Kong. This ticket (page D34) which was a free ticket was routed Bangkok - Hong Kong - Bangkok. It was an open return ticket. There was no return booking but the ticket was valid for a return journey up to 26 December 2000.

43. Section 13 of the ordinance refers to Schedule 4 which defines non-international travel in a rather circuitous way by defining international carriage as follows (see paragraph 2 of Article 1, Schedule 4, which is in these terms): "International carriage means any carriage in which according to the contract made by the parties the place of departure and the place of destination, whether or not there be a break in the carriage or a trans-shipment, are situated either within the territories of two states parties to the Warsaw Convention or within the territory of a single such state if there is an agreed stopping place within the territory subject to the sovereignty mandate or authority of another state even though that state is not a party to the Warsaw Convention."

44. This was a return ticket from and back to Thailand. Thailand is not a party to the convention. So much is clear from section 4 of the ordinance and the gazetted order made thereunder. Accordingly, says Mr Watkins, this must be non-international carriage because it is not an international carriage. If that is so, then section 3 applies and in particular Article 17 which limits liability as follows: "The carrier is liable for damage sustained in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

45. The significance of this from the defendant's point of view is that the claim is restricted to bodily injury and not other pecuniary losses of the type claimed by the plaintiff. Further, under Article 22 quantum is limited to the sum of 100,000 SDRs which comfortably exceed the jurisdiction of this court. So the only issue under Schedule 3 is whether the plaintiff suffered any bodily injury which of course is denied by the defendants. I am satisfied that Mr Watkins is correct and that the surprising outcome based on the routing of this ticket is that this falls to be classed as non-international carriage. But even if I am wrong about this, and this is to be properly classed as international carriage to which Schedule 4 of the ordinance applies, then under Article 17 of Schedule 4 the classes of recoverable damage are the same, save that Article 22 the limits of liability are higher although irrelevantly so for present purposes given the $600,000 limit in this court.

46. The Warsaw Convention is recited on the passenger ticket. The plaintiff says he never read it nor was he aware of it nor was it drawn to his attention. None of this avails him. I am satisfied that the defendant's printed terms apply to this contract. This means that the claim is limited to bodily injury only. Has the plaintiff suffered such an injury? As I say, the defendants deny this. Neither the ordinance nor the convention define "bodily injury". On the medical evidence the plaintiff has suffered some physical discomfort consequent upon the ingestion of these fragments of glass. The tarry stools would appear to be associated with internal bleeding but even without that the undoubted physical discomfort suffered by him must qualify as bodily injury.

47. I get some assistance from the definition applied to the offence of assault occasioning actual bodily harm which is taken to mean the inflicting of some physical discomfort to the victim. I am satisfied that this ingestion of particles has caused the plaintiff bodily injury as contemplated by the ordinance. This therefore is the first head of damage in the claim which is for pain and suffering. It is convenient to assess the quantum for this now. The pleaded claim is for $80,000 which, in my judgment, is too high. Nevertheless it is by no means a minimal claim. There was pain and discomfort for about 12 to 14 days before the plaintiff was back to his old self, during which time he was laid low and mostly confined to bed. There was the anxiety that he might have done himself a real mischief internally and this was recognised by Professor Lam who prescribed diazepam to keep him calm.

48. He had to go an gastroscopy aided by a tranquillising injection. This invasive procedure was not pleasant of course and he also had the inconvenience of having to be X-rayed and investigated at Tang Shiu Kin and by two airline-appointed doctors. These relatively minor situations are difficult to assess with great precision but doing my best I find that the appropriate damages under this head should be $52,000.

49. I now turn to the rest of the claim which is entirely of a pecuniary nature. It is set out at page D40 limited to $500,000. It is described as loss of income. In view of the fact that I found that on either view of the class of carriage, international or non-international, the claim is limited to bodily injury in this case, this part of the claim must fail save for those elements relating to assistance from solicitors and professional correspondence and time for attending court, research and preparing summonses for which the plaintiff would be able to make a claim as costs of the action.

50. I shall allow one item of special damage which relates to obtaining medical reports and hospital fees. I take the view that a reasonable amount for this is $1,000. The total amount of the claim that succeeds therefore amounts to $52,000 for general damages, pain and suffering and $1,000 for special damages.

51. But for the sake of completeness I should say that even if the ordinance and the Warsaw Convention had not operated to limit the scope of this claim to bodily injury, I would have found that the rest of the plaintiff's claim has as a matter of evidence failed to carry the required standard or proof. The essence of it is that he was coming to Hong Kong to carry out a contract to supply specially toughened glass sheets which were to be manufactured in China. This would have required his attendance in China to oversee the manufacture. He had Miss Choi with him who was to act as his assistant and to interpret for him.

52. By 3 October, only four working days after his arrival in Hong Kong when one takes into account the national holiday on 1 and 2 October, he had communicated with his Australian clients to tell them that he could not perform his contract with them because he was unwell. Even making every allowance for his condition, I find that he acted unreasonably quickly in withdrawing from this contract. It is clear that by 9 or 10 October he was up and about and could have started work. In my view, he was precipitate in withdrawing so soon after his arrival in Hong Kong. In any event, he seems to making his claim and that for Miss Choi on the basis of salary paid or to be paid. As to Miss Choi's, most of this had already been paid to her in Thailand and by November 2000 she had found other work.

53. As to his salary, I fail to see how this can form the basis for a claim. If anything, it should be for loss of profit on the contract which has simply not been proved. For these additional reasons the claim quantified at page D40 would also have failed.

54. There will be judgment therefore to the plaintiff in the total amount of $53,000 together with interest. I will award interest on general damages at 2 per cent from 26 September until judgment and on special damages from the date of the writ until judgment at half the judgment rate and on both there will be interest at the judgment rate from today until payment, together with the costs of the action which will be paid by the defendants to the plaintiff.

Representation:

Plaintiff in person

Mr N Watkins, of Stevenson, Wong & Co, for the Defendant

DCPI145/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 145 OF 2001

_____________________

_____________________

____________

R U L I N G

____________

1. In this matter the defendants wish to put in evidence a statement by a flight steward on this particular flight. This steward was assigned to work in the section of the aircraft where the plaintiff and his secretary, Miss Cecilia Choi, were seated. The case of course is that the plaintiff says that he ingested fragments of glass which were in a pineapple juice drink, and that he felt he was ingesting something which was out of the ordinary and then when he looked down at what remained of the drink in its plastic container, he saw that there were fragments of glass at the bottom of the container. He then drew this to the attention of the steward who was working in his section of the aircraft. It is said that Mr Bukkah Seng-koon was that steward.

2. His statement is to the effect that he has no recollection of any passenger making a complaint of this nature, and that had such a complaint been made, he would have immediately had to notify the chief steward who would then be obliged to make a note of the incident in the voyage report. He is informed that there is no reference of such a complaint in the voyage report.

3. That statement is also followed up by one made by the in-flight supervisor on the flight and his name is Chen Kek-Nguang and his short statement is also to the effect that no such complaint was made to him and that had such a complaint been made, he would have been under a duty to record it in the cabin voyage report.

4. The plaintiff requires the attendance of the steward. In the ordinary course of events he would have had to served a counter-notice to require his attendance and the matter could have been considered in good time, certainly before the start of the trial. But I am prepared to excuse this, as I am entitled to, simply because the plaintiff himself is a layman and one ought to give him consideration because of that.

5. What the plaintiff says is that this is a crucial witness. He has a number of questions that he wishes to put to that witness and that it would not be fair to merely let his statement go in and then consider its weight in all the circumstances of the case.

6. I think the plaintiff is right about this. This is a potentially fundamentally important witness and if the defendants wish to rely on his evidence, then they ought to produce him.

7. I bear in mind that of course he is employed by the airline who are an airline who have a number of flights from Singapore into Hong Kong. The trial is now going to go part-heard to 12 June, so they have got about just under two weeks in which to organise his schedule and make him available. And so I am going to say that the defendants will not be entitled to rely on this evidence unless he is made available for cross-examination and I think to do otherwise would not be in the interests of justice in the circumstances of this case.

8. So that is the order I make but I also think that I ought to direct Mr Watkins that you produce a photograph. I mean, if in fact the plaintiff looks at the photograph and says, "Well, this isn't the man", then quite clearly the order that I have just made would not bite in the circumstances. But if Mr Olding said, "Yes, this is the fellow", then the order that I make is the one that is to be effective.

Representation:

Plaintiff in person

Mr N Watkins, of Stevenson, Wong & Co., for the Defendant