Lai Yau Tai v. Moral Accord Ltd and Others

DCPI 22/2015

[2019] HKDC 1111

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 22 OF 2015

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Coram: His Honour Judge Harold Leong in Court

Date of Hearing: 24-26 June 2019

Date of Judgment: 16 August 2019

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JUDGMENT

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1.This is a personal injury claim as a result of an accident on board a marine vessel on 10 January 2012. Quantum is agreed so the trial is only on the issue of liability.

Background

2.The plaintiff was a rigger / signalman employed by the 1st defendant to unload certain containers from a marine vessel named Wan Hai 206 (“Wan Hai”) to a barge named “Floata 2” (“Floata”). The 1st defendant was the sub-contractor of the 2nd defendant.

3.The plaintiff was allegedly hit by a container during an unloading process. The crane was operated by a Mr. Sin Kam Yau (“Mr. Sin”) on Floata. Mr Sin is employed by the 3rd defendant.

The accident

4.In order to ascertain the liability of each party, if any, one needs to determine how the accident happened.

5.There was no dispute that there were 4 riggers working on Wan Hai at the time of the accident. The plaintiff was one of the riggers who was also acting as the signaller for Mr. Sin.

6.According to the plaintiff, the procedure of unloading was firstly for the riggers to identify the container and attach the hooks from the crane to the corners of the container.

7.Then, the plaintiff (acting as the signaller) would give the signal to Mr. Sin to hoist the container up a little (“First Signal”) to enable the plaintiff and other riggers to check that there were no stacking cones still attached to the container (if these were still attached, they could fall off whilst the container was hoisted in mid-air which could cause damages).

8.Once this was checked, the plaintiff would move to a safe place (about 20 feet away in this case) and gave a signal for the container to be hoisted fully (“Second Signal”). From then on, it was usual practice for the crane operator to take over the rest of the procedure: to hoist the container to at least 6 to 7 feet above the deck and to swing the crane around to manoeuvre the container onto the deck of Floata. In the meantime, the riggers should retire to a safe place away from the path of the container.

9.According to the plaintiff’s statement to the Marine Department (Trial Bundle P.163) dated 17 January 2012 (which was 2 days after the accident), after he gave the Second Signal (as I translate):

“I was aware that this was a light container (7 ton) so could swing quite fast, so I walked speedily away towards the “green light” (i.e. the right / starboard side of the ship) ... Later I saw the container swinging back and forth, and also spinning like a windmill. By the time I reached the 6th or 7th row of containers, I was hit by the container in the right side of my back, causing me to lose balance and fell forward, my left forehead hit the 2 storey container on the 8th row...”

10.However, during cross-examination, the plaintiff gave different versions of the events on what he did after giving the Second Signal.

11.Initially, the plaintiff claimed that once the container was hoisted to about 3-4 feet off, he saw that it had started to spin so he ran away. But then he claimed that after seeing that the container had been hoisted above the deck, he turned away and walked towards the starboard side of Wan Hoi. He was not looking at the container but then heard a shout from his colleagues: “Run!”, and then he was hit.

12.The plaintiff was also rather vague and inconsistent as to exactly what he heard from his colleagues besides “Run!”. At one point during the trial, he claimed that he heard them shouting “container moving!”. At another point, he claimed it was “container swinging!”, then he claimed it was “container turning!”. In any case, he admitted that the situation was very confusing at the time.

13.When questioned, the plaintiff confirmed that he did not actually see the container swinging or spinning like a windmill (as claimed in his statement to the Marine Department). He claimed that his colleague, a Mr. Tzi Choi, saw what happened. However, Mr. Tzi Choi was not called as a witness.

14.The plaintiff was also asked to draw on a diagram as to the position of him when giving the Second Signal and the position where he was hit by the container.

15.Under cross-examination, the plaintiffadmitted that the path he took was crossing the path of the container, but he maintained that if the container was hoisted to the usual height of 6-7 feet above the deck, he would not have been hit. He said that the container was hoisted only to a height of 3-4 feet and that was roughly the level where he was hit.

16.Mr. Sin was called to give evidence on behalf of the 3rd defendant. He disagreed that the plaintiff had only given two signals. He said that the usual practice was that, after seeing the Second Signal, he would start hoisting the container. Then the plaintiff gave the signal that the container had reached the correct height of 6-7 feet above the deck before signalling to indicate to swing the crane left or right (“Third Signal”).

17.Mr. Sin said that he then saw the plaintiff retreating, as usual, towards the bow of Wan Hoi. After that, he was concentrating on the container. However, at some point, he saw someone walking briskly in the direction of the right stern of Wan Hai. Then a rigger / signalman signalled him to stop the operation, which he did. He also said that he saw that person who was walking briskly has fallen down but he did not see the process of how he fell.

18.Mr. Sin admitted that from where he was situated, he could not recognise the four riggers or which was the signaller etc. However, he claimed that he was sure that the container was hoisted 6-7 feet above the deck and that he did not see anyone hit by the container. He also denied that the container was swinging or spinning like a windmill. He claimed that the plaintiff fell down on his own.

19.However, in the “Account of incident” in the “Report of Marine Incident” of the Marine Department dated 10 January 2012 (that is, the day of the accident), Mr. Sin stated this in the report (as I translate):

“When the container was moving, another rigger from the big ship ran diagonally towards the stern on top of the containers. I do not know whether it was the container which knocked him down or whether there were other causes. I saw him fell down subsequently....”

20.Of course, if Mr. Sin was so sure at the time that the container was lifted 6-7 feet above the deck, he would have been very certain that it would not have hit the plaintiff. In such case, one would reasonably expect that this would be amongst first things he would tell the Marine Department, instead of stating “I do not know whether it was the container which knocked him down…”

21.When asked such, Mr. Sin was unable to provide a satisfactory explanation.

22.Further, I doubt Mr. Sin’s claim that there was a Third Signal from the plaintiff. If Mr. Sin had relied on the Third Signal from a signaller confirming that the container had been hoisted to the proper height, I would also expect him to inform the Marine Department at the time.

23.Thus, there were clear inconsistencies in the evidence of both witnesses regarding the accident.

The findings

24.Firstly, I do not find that the container has been “swinging” or “spinning like a windmill” as alleged by the plaintiff. He had turned away and would not have seen it, and if he had really heard anything from a colleague, that would be at best hearsay evidence. The plaintiff could have called his colleague as a witness but he failed to do so. I would only speculate that the plaintiff make that claim in an attempt to distract from the fact that he had inadvertently strayed into the path of the container.

25.Secondly, there was no dispute that the medical records showed that there was trauma to the plaintiff’s back which I would take as the likely area of his body that came into contact with the container.

26.Given such findings, logically, this accident could only happen if the following two events occurred: a) the plaintiff had strayed into the path of the container and b) the container was not raised to the correct height as alleged by Mr. Sin.

27.As to event a), the plaintiff has already admitted that he had crossed the path of the container in contrary to the safety regulation of the 1^st defendant (Trail Bundle P. 172), he was clearly contributorily negligent.

28.As to event b), there was no dispute that the usual practice was to hoist the container to the height of 6-7 feet above the deck. What was in dispute was the responsibility of each party: Mr. Sin said that he relied upon the signaller to indicate the suitable height. The plaintiff said that the crane operator would take over after the second signal and would not bother looking for any further signals because the operator would be “in charge”.

29.It must be common sense that the signaller and the crane operator must co-operate to ensure that the container was hoisted to the correct height before the crane started swinging it away. If the plaintiff was aware that the crane operator would “take over” after the Second Signal, he was clearly contributorily negligent if he just “turned away” without monitoring the container after the giving the signal. On the other hand, Mr. Sin could see the container from his position so one would expect that he should be able to gauge the height. If he was not sure that the container had been hoisted to the proper height (according to his account to the Marine Department), he should have stopped the procedure. Thus I find that Mr. Sin, as the crane operator, must bear a larger portion of liability in this factor than the signaller.

30.With regard to the liabilities of the 1^st and 2^nd defendants, these were based upon allegation of negligence concerning failure to ensure that work was carried out “without unnecessary risk of accident or bodily injury”. In particular, it was pleaded that there should be a separate signalman and there should be supervision to ensure, in effect, that the container would not come into close proximity to the plaintiff.

31.I see no need for a separate signaller under the circumstances since, by the plaintiff’s own evidence, at the time he was required to give signals, the work of a rigger was already complete. There was no requirement in any Code of Practice by the Marine Department that prohibit a rigger acting as a signaller. Further, there was no problem with the signalling between the plaintiff and Mr. Sin. Both gave evidence that they could see each other clearly when the signals were given.

32.More importantly, the accident was caused by the plaintiff, whilst in the role of a signaller, straying into the path of the container. The cause has nothing to do with whether there was a “separate” signaller or not.

33.The 1^st defendant already has safety regulations in place prohibiting crossing the path of the container and this was signed by the plaintiff (Trail Bundle page 172).

34.The 1^st defendant, as the prudent employer, must be allowed to rely on such provisions as adequate protection for the employees against such accidents.

35.As for the allegations that there were inadequate “supervision” or “supervisors”, given the safety regulations already in place, I cannot see how the employer can further be asked to monitor the work of every single employee, for example, where each was standing or walking at any one time. Further, such a requirement would of course raise the absurd perpetual question: who should supervise the supervisors (given that they must also be standing around on the deck and thus also at risk themselves), and the supervisors of supervisors….and so on. Of course, the plaintiff has not adduced any evidence that providing such constant supervision was the standard in the industry.

36.The plaintiff also mentioned at trial that he should have been provided with a walkie-talkie by the 1^st defendant. However, this allegation was never raised in the pleadings. The plaintiff also admitted that in over 20 years of experience working as a rigger / signalman, he has never seen the provision of walkie-talkies.

37.Further, it was clear in the Code of Practice provided by the Marine Department that there was no requirement for walkie-talkies for persons engaged in shipboard container handling but only that “…unless the crane operator has an unrestricted view…the loading and unloading should only be carried out when…the signaller is clearly visible to the operator of the crane” and that “The crane operator should have a clear view of the assigned signaller at all times...and obey signals only from the signaller...” (see paragraphs 5.1.2 (ii) and 5.1.3 under Safe Practices of “Code of Practice Shipboard Container Handling on Vessels (January 2007 edition)”).

Conclusion

38.After considering all the evidence before me, I do not find the 1^st and the 2^nd defendants liable in this case.

39.Instead, I find the plaintiff and the 3^rd defendant both liable. As stated above, the accident could not have happened unless the plaintiff crossed the path of the container and that the container was not hoisted to a proper height. I would distribute 50% liability to each of these factors.

40.It was entirely the plaintiff’s own doing for crossing the path of the container so I find him entirely contributorily liable for this (that is, the first factor).

41.As for the second factor, I find Mr. Sin (thus the 3^rd defendant) bearing a bigger burden of the liability as stated above. I think he should bear 80% of the liability being the crane operator. Overall, the 3^rd defendant should therefore bear 40% (50% x 80%) of the liability.

42.It would be fair under the circumstances to apportion 40% of liability to the 3^rd defendant and 60% to the plaintiff.

Order

43.I would therefore order that the 3^rd defendant be liable for the accident with a 60% contributory negligence by the plaintiff. The claim against the 1^st and 2^nd defendant be dismissed.

44.There be an order nisi for :-

i)   40% of the costs of the action be to the plaintiff payable by the 3^rd defendant; and

ii)   the costs of the 1^st and 2^nd defendants be payable by the plaintiff

to be taxed if not agreed.

Ms Clara Yung, instructed by Kenneth W Leung & Co, for the plaintiff

Mr Martin Ho leading Miss Karen Chan, instructed by John C H Suen & Co, for the 1^st and 2^nd defendants

Mr Victor Gidwani leading Mr Jethro Pak, instructed by Lau, Chan & Ko, for the 3^rd defendant