Cheng Ah Shu v. Tai Pen Godown Co Ltd

HCA001582/1972

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1582 OF 1972

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Coram: Briggs, C.J. in Court.

Date of Judgment: 18th July, 1973.

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JUDGMENT

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1. This action arises out of an accident which occurred on the 11th April, 1970. The plaintiff was at that time a coolie. He was hired to shift cartons of refrigerators from a lighter to the waterside. The refrigerators were then loaded on to a lorry by a crane. The lorry then proceeded to the defendant's godown where they were to be off-loaded. The plaintiff rode on the back of the lorry in order to look after the load on its journey to the godown. Upon arriving at the godown. the driver of the lorry backed the lorry into the godown. The plaintiff, as was his duty, reported the number of cartons to an official of the defendant company. The cartons were lifted from the back of the truck by crane to an upper storey, the crane being on the upper storey inside the defendants' godown. Each load consisted of two cartons which were tied together by a three inch wide web strap. This I will refer to as "a sling". While the plaintiff was on the back of the lorry, one pair of cartons slipped out of the sling as it was being hoisted to the upper storey. One of the cartons injured the plaintiff as it fell, rendering him unconscious. Each carton contained a single refrigerator weighing some 200 pounds. The plaintiff claims damages for negligence.

2. It is the plaintiff's case that he himself played no part - in the operation of loading the sling with the cartons or in assisting the cranesman in any way to hoist the load into position. He did not fix the sling, he did not give the signal to the cranesman to hoist the load. Indeed, he said in evidence that he had no right to give orders or to do such work in the defendants' godown. He was not an employee of the defendant. He was merely there as a lorry attendant on behalf of his own employer, the owner of the refrigerators. The plaintiff gave his evidence in a clear and apparently truthful manner. He said that he was the only lorry attendant with the truck, but there was a driver of the truck who was a fellow employee of his. When he had reported the number of cartons to an official of the defendant company he returned to the lorry. All he did was "to move the cartons to the proper position for the crane to lift them out of the lorry".

3. That last sentence was taken from my note of the evidence given by the plaintiff. This is important because counsel for the defence suggested in his closing address that the reference in the statement of claim to the moving of the cartons in the lorry by the plaintiff had not been made by the plaintiff. The evidence clearly stated that that is what he was doing at the time. And it was never suggested to him that he was accompanied by another coolie. It would, of course, have not been possible for him to load two cartons on to the sling by himself.

4. At first he sat on top of the cab of the lorry and when one or two pairs of cartons had been unloaded there was space for him to stand at the back of the lorry, which he proceeded to do, assisting in the moving of the cartons as I have said. The plaintiff was quite sure that he never fixed the sling to the pairs of cartons. This, he said, was done by two other coolies who were the employees of the defendant company. The plaintiff said that he was very familiar with this sort of work and that he never was asked to nor did he ever offer to fix the web sling. That was the duty of the coolies of the godown. Prima facie this would seem to be obvious.

5. The plaintiff called one other witness, a doctor. The defendant called the Manager of the company, one of the foremen of the company and the cranesman on duty on the day of the accident.

6. The Manager said that sometimes goods were tied up and made ready for the crane by the coolies who brought the goods to the godown but this witness did not see the accident as he was not there in the godown on that day. So his evidence was of very little assistance to the court.

7. The foreman's evidence differed from that of the Manager. He said that the tying up of the goods for the crane was inevitably done by the coolies who brought the goods to the godown. He said he was in the godown on the ground floor on the day in question and witnessed the accident. He said that the plaintiff and another coolie did the tying up. The second coolie was not an employee of the defendant company nor was he the driver of the lorry. He said that these two coolies tied up the cartons and signalled the cranesman when they were ready for the load to be hoisted. This was the first time that we heard of the existence of a second coolie on the lorry. The plaintiff said that he was alone with the driver and that no second coolie was there. As I have said, one person could not himself tie two cartons together by a web sling. And it may be that the foreman's imagination, for this reason, supplied the second coolie. The foreman was not a satisfactory witness. He was very hesitant and though he said he was the foreman with a duty to supervise he said he did not, indeed - he had no business to supervise - the plaintiff on this occasion, since the plaintiff was not employed by his company. He went so far as to say that he expressly told the plaintiff "To do it properly" referring to the tying up of the loads for the crane, and also that he allowed the plaintiff and his mate to use his company's equipment and to signal his company's cranesman without in any way interfering.

8. The accident occurred more than three years ago and I think that the memory of this witness was much at fault.

9. The third witness called for the defendant was the cranesman at the time of the accident. He has long since left that occupation but he said that he was on duty at the time of the accident and his evidence agreed with that of his foreman as to the number of coolies engaged in the fixing of the loads for the crane. He was seated on the floor above, but he claimed to recognize the plaintiff as one of the two "outside" coolies who were employed on the job. He also said that the foreman was supervising the operation on the ground floor at the time. However, he was engaged in operating the crane as a full-time occupation. He said that the fatal load slipped from the sling when it reached the upper floor. He even said that he did not remember if the refrigerators forming that load were enclosed in cartons or not. He thought that the accident may have been due to the slipperiness of the refrigerators. This witness was at pains to ensure that no responsibility for the accident should attach to himself, and I have to record that he was not a convincing witness.

10. On the other hand, the plaintiff was a most convincing witness. He made no attempt to exaggerate his evidence. He gave his version of the accident stolidly and I believe he told me the truth. When the version of the plaintiff of what happened at the accident differs from the version given by the defendant witnesses I much prefer the former to the latter.

11. I find as a fact that the plaintiff was not engaged in tying up the loads for the crane, that he was there alone, apart from the driver, as a lorry attendant and to report the number of cartons to the defendant company only. I hold that the tying up of the loads was the responsibility and was actually performed by the coolies of the defendant company. I also find that the accident was caused by their negligence in the way in which the particular load was placed in the sling or the way that the sling was tied. The doctrine of res ipsa loquitur also applies and I therefore find the defendant liable in negligence. I can find no evidence that the plaintiff himself was negligent or that the plaintiff's actions contributed to the accident at all. I will now deal with the question of damages.

12. The plaintiff is now 52 years of age. He is a general coolie. He hires himself out daily, a common custom in Hong Kong. The accident rendered him unconscious. He suffered a traumatic subluxation of the first and second cervical vertebrae, namely a partial dislocation of his neck. He was given skull caliper traction for five weeks and his head, neck and shoulders were encased in a plaster jacket called a 'Minerva' jacket in order that the bones should unite. He was confined to his bed in hospital while he received traction. After the removal of the 'Minerva' jacket he was fitted with a plastic collar which he wore until it had worn out, i.e. for nearly a year. The plaintiff has recovered but the accident has left him with a partial limitation of movement of his neck. If, for example, he has to look to the left when crossing the street he must turn his whole body. There is also a residual slight weakness and paraesthesia of the arms and legs. This has been estimated as a 10% disability and will not improve. He may very well get worse. The plaintiff also complained that he now could not lift heavy weights as he was able to do before the accident as, indeed, his occupation demands. The doctor who gave evidence said he would be wise to avoid heavy work and undue strain: which is difficult advice for a coolie to follow.

13. The plaintiff claimed $50 for damage of clothing which I will allow. He claims $700 for travelling expenses and extra nourishment. There is no evidence as to how that sum should be divided. A claim for extra nourishment whilst in hospital unless it was ordered by the doctor cannot succeed. It is wrong that the defendant should have to pay for the plaintiff's luxurious foods unless it is so ordered. I will allow $200 for travelling expenses for himself and his wife.

14. He did not work from the date of the accident until the end of the year 1970. His average income at the time of the accident was $900 per month. He received the sum of $600 per month from his employers, Jimmy's Godown Limited, for the first six months after the accident. I will, therefore, award $2,400 for loss of earnings up to the end of the year. As from January 1st, 1971 to August 1st, 1971, he was earning about $150 per month. For his loss for this period I will award $5,250. From then until the date of the writ he was earning about $350. For this period I will award $7,000. The total special damages, therefore, is $14,900. The plaintiff suffered considerable pain and suffering and much of the treatment given to him though necessary, was unpleasant. His loss of wages continues at about $350 per month and will so continue. I will take a multiple of eight; this comes to $56,000, adding a sum for pain and suffering and loss of amenities and scaling the sum down to take account of a lump sum payment and what are usually called "the normal vicissitudes of life" we get the sum of $52,800; the total of damages comes to $67,700. From this must be deducted the sum of $4,320 which has been awarded to the plaintiff under the Workmen's Compensation Ordinance.

15. There will be judgment for the plaintiff for $63,380 with costs to be paid within one month.

16. The costs of the assisted plaintiff to be taxed in accordance with the provisions of the Legal Aid (Scale of Fees) Regulations, Cap. 91.

Representation:

K.H. Woo (Peter Mark & Co.) assigned for Plaintiff.

W. Wang (Gunston & Chow) for Defendants.