Sin Yin Fai v. Lee Sing Co

HCA002002/1981

Headnote

Employer and employee. A welder who was engaged in ship-breaking sustained back injury while attempting to move a metal plate. He sued his employers for damages for negligence in failing to provide a safe system of working.

Held:- As regards day to day operations an employer's obligation to provide a safe system for experienced craftsmen may be discharged by leaving to them decisions affecting their personal safety. Kinsella v. Harris Lebus Ltd. (1964) 108 Sol. Jo. 14 considered.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Kempster, J.

Date: 14th January 1983

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JUDGMENT

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1. In this Action the plaintiff, a welder experienced in the ship building, repairing and breaking trades, claims against his employers damages for injuries sustained during December 1978 in the course of his work aboard the M. V. Ly1ian which, together with another ship, was being broken up in Junk Bay. According to the defendant's records the plaintiff last worked for them on the 13th of the month in question though the report which they made on the 5th of January 1979 pursuant to section 15 of the Employees' Compensation Ordinance, Cap. 282, gave the date of injury as the 16th. That was the date which, though he denied it, the plaintiff apparently gave to Mr. Wedderburn, his Consultant Orthopaedic Surgeon, on or about the 18th of October 1979 and appeared in the Statement. of Claim from the 27th of March 1981 until amended to the 13th on the 28th of April 1982. A mistake as to date is easily made if the gravity of an injury is only appreciated at a later date. The plaintiff said he did not think of making a claim until 1980. More significant, in my view, is that the plaintiff apparently told Mr. Wedderburn that he had twisted his back while trying to lift an iron bar of approximately 300 lb. in weight; an exercise which required him to rest before resuming work. That allegation is repeated in paragraphs 5 and 6 of the Statement of Claim and has not been 'the subject of amendment or of application to amend. It would appear that the plaintiff was in fact working on material brought by lighter from the other vessel.

2. The plaintiff's evidence before this Court has been to rather different effect. He said that at the time of the incident of which he complains he was working on the deck immediately above the keel. He explained that he had to cut-away steel plates using a "gun" and that labourers were employed to move and remove the plates so cut-away. He said that if there was a shortage of labourers the welders would move the plates if they thought it was within their physical powers although they were not required by the defendants to do anything save welding. "A piece of steel about the size of the witness box fell' down and blocked the area where I was to work. So I had to remove it. There were no labourers about and the foreman said, accordingly, that I had to do it. This piece of steel, had it been heavier, had I thought it was unsafe for me to move, would have been moved by hook and crane after I had made a hole in it with my "gun". Then the labourers and crane operator would swing the plate into the lighter moored along side." But at the time, he said, there were no labourers and there was no hook. On a related topic he told me that before the material incident he did have to overcome some little discomfort in his back. He knew that it was dangerous to try to move heavy pieces of steel. The discomfort in-his back had not prompted him to take any medical advice. "I didn't suspect that there was anything wrong with my back." Had he not attempted to move the piece of steel which was obstructing his work he would have had to waste half a day. "Other colleagues were near me. They had their own work to do. I tried to move it by myself. I tried to pull it to one side. As I did so I twisted my lumbar region. I let the plate go as I was in such pain and it fell to the deck. I could hardly move. I had to squat down and after squatting down for a little while I found it difficult to stand. On the 16th of December I sought medical advice at Queen Elizabeth Hospital. I thought I had the strength to move the steel plate. I was able to do so. It was within my capacity. I had learnt from the first day I was employed by the defendants that on occasion I might have to move or help to move plates if I thought I had the capacity to do so. If necessary and if available the foreman would give a helping hand. It was for me to judge whether or not I could safely move a piece of plate." He said that an alternative way of dealing with a heavy plate was to cut it into smaller sections with his "gun" though this would not be popular with his employers because it might turn relatively valuable plate into scrap. There were 20 or 30 welders and boiler-makers on the ship but no labourers. "Normally a welder would be expected to move a plate of the size of the one that I pulled and it would be quite safe for him to do so. When I decided to move the plate I didn't expect to injure myself. I concentrated on moving it and getting on with my work. I didn't make a calculation as to whether or not it was safe to do what I did. I didn't think of making a claim until I had spent HK$20,000 on bone setters in vain. By that time, 1980, I could remember about trying to lift the plate and that there had been no labourers on our ship. I had looked for labourers before trying to move the plate myself. It was for labourers to move the plates if they were available and for the welder to use his judgment about doing so if they were not available.!" So his evidence disclosed that what he had done was not in fact to seek to lift the plate but to shift it to one side and to pull it.

3. There was no other witness to the occurrence. The nearest we get is the evidence of Mr. Chu Lin, a fellow welder, who said that he and the plaintiff were working together on the vessel during December 1978 breaking steel,: that had come from another ship. "I was working some 10 ft. from the plaintiff. We were cutting out steel plates. I don't know how the plaintiff got injured but I approached him to help' me. I wanted him to push a piece of plate that I was cutting to ensure that it fell safely and the plaintiff said: 'How can I help you, I need help myself (indicating his back).' I didn't think any more about the plaintiff's complaint and he resumed his work and I managed to deal with the plate with which I was concerned on my own." Mr. Chu Lin also gave evidence that it was part of a welder's duty to move plates if no labourers were available and if it was in his judgment safe to do so. If help was needed and no labourers were present welders would help each other. He said: "I had worked for four employers in the ship-breaking business. The practice was the same."

4. Another welder, Mr. Lam Tong, confirmed the evidence which I have already recounted as to the practice in relation to the movement of plates by welders in the defendants' employ and said there was no difference elsewhere.

5. Yet another welder, Mr. Lam Chi Kwon, said that he had taken up employment with the defendants some years ago and then left them because he thought it was dangerous to have to move or help to move plates. But his emphasis was on the impropriety of craftsmen with his qualifications being asked to carry out this manual task. Further, he could give no evidence as to the general practice in the ship-breaking trade because he said that the defendants were the only ship-breakers, as opposed to ship repairers or builders, that he ever worked for.

6. The evidence of the two partners of the defendants who were called does not conflict with that of the evidence called by and on behalf of the plaintiff save in relation to the presence of labourers at the material time. Mr. Cheng Man Kit told me that during December 1978 there was no occasion when labourers were not available on the M. V. Lylian. He was the partner responsible for the actual work of breaking and on board. He said there were two lighters also carrying labourers, one moored alongside each vessel, and that the defendants followed the normal practice in the ship-breaking trade in relation to the movement of plates. There were 10 labourers employed by the defendants as well as the labourers on and employed by the owners of the lighters. He knew of no other instance of a worker claiming to have suffered injury as a result of lifting or moving too heavy an object. At the time he had some 5 to 6 years experience of carrying on the ship-breaking business. When cross-examined by counsel for the plaintiff he said that in his opinion it was not negligent for the defendants to leave it to the welder to judge whether or not it was practicable or safe to make an attempt to move a piece of metal plate. "They are experienced enough to judge for themselves even though moving plates is not the primary purpose for which they are employed. The welders should know the danger involved in trying. We gave no warning accordingly." His partner, Mr. Cheng Lee Kit, told us that he was responsible at the material time largely for administration and had never before reported such an incident as that he reported in relation to the plaintiff.

7. Despite the disparity between his pleaded case and that disclosed in his evidence, which in no way affects the position in law, I am satisfied that the plaintiff did his best to recall the circumstances of his injury. He was a man anxious to do a fair day's work for a fair day's pay. I am less than satisfied as to the accuracy of his recollection in important respects, however, even allowing for his station in life and for the difficulties of interpretation at various stages of the story. I find, on the evidence, that the plaintiff did injure his back in the course of his employment on the 13th of December 1978. I also find that he was sufficiently expert to be aware of the potential dangers involved in pushing or pulling metal plates. I find that, in conformity with existing practice in the ship-breaking trade in Hong Kong, the defendants had labourers available on the M. V. Lylian at the material time. They had also available a crane, hook and other necessary tackle to move plates that obstructed the plaintiff's work and which he could not readily shift himself. I find that at least one other welder was nearby and available to help, if asked, and that the defendants relied upon the plaintiff's personal skill and judgment to move plates on his own; to seek help from colleagues or to call-in labourers as he thought his safety and convenience demanded. I also find that the defendants were unaware of any injury to welders resulting from the way their work was organised.

8. The question posed in the light of these findings is "Should the defendants have done more? " As Lord Diplock said in Boyle v. Kodack Ltd.⁽¹⁾ at p 674:

"It may well be unnecessary to give skilled and experienced craftsmen instructions how to avoid obvious dangers and the more obvious the danger the less the need to do so."

I regard liability to back injury as a danger obvious to the plaintiff particularly as I find from 'his evidence and that of Mr. Wedderburn that he had, prior to the incident, suffered discomfort from a degenerative condition of his back. Quite different considerations apply to breaches or alleged breaches of statutory duty which do not arise in the present case. As opposed to Lord Diplock's observation the industry of Mr. Lai, who appeared for the plaintiff, has' been rewarded by an earlier authority which, prima facie at least, suggests that the employer is not entitled merely to rely on his employees to decide whether or not they require help even at common law. The authority is Kinsella v. Harris Lebus Ltd.⁽²⁾. It was referred to in the speeches of Viscount Dillon and Lord Kilbrandon in Brown v. Allied Ironfounders⁽³⁾ where the House of Lord was concerned with breach of provisions of section 72 of the Factories Act 1961. Germane to the point in issue was the speech of Lord Kilbrandon. At p 533 he said:

"In the course of the day to day operation of a factory the employees are constantly moving weights as part of their duties under their contracts. Employers are not required or expected to be on a constant watch to see that no one moves a weight which is too heavy for him nor would such solicitude be well received however kindly intentioned. I cannot believe that - whenever a man in the course of his employment lifts a load which is too heavy for him, then unless he has been forbidden to lift that load, he has been employed to lift that load."

Then at p 534, referring to Kinsella v. Harris Lebus Ltd . ⁽²⁾ and another case:

"For my part, I find the report of these decisions as also of the facts upon which they depended to be of some obscurity - I am to some extent confirmed in the general view I have taken about the duties of employers - by the fact that there should be such unusual paucity of decisions about a process which is of the essence of industrial work - the lifting and moving of loads. The employer will not normally order dangerous loads to be handled and the employee is too skilled and sensible to do it off his own bat."

In my view Lord Kilbrandon's words reflect not only the common sense and practicality of the matter but also the common law as well as the effect of statute. It has often been said that the relationship between employer and workmen, particularly skilled and experienced workmen, is not to be equated with that obtaining between nurse and idiot children.

In Qualcast v. Hanes ⁽⁴⁾ at p 754 Lord Radcliffe said:

"Actions of negligence are concerned with the duty of care as between a particular employer and a particular workman. An experienced workman dealing with a familiar and obvious risk may not reasonably need the same attention or the same precautions as an inexperienced man who is likely to be more acceptive of advice or admonition."

Further, as Viscount Simonds stated in Cavanagh v. Ulster Weaving Co. Ltd.⁽⁵⁾ at p 158:

"It would, I think, be unfortunate if an employer who has adopted a practice, system or set-up, call it what you will, which has been widely used without complaint, could not rely on it as at least a prima facie defence to an action for negligence."

Lord Tucker's speech at p 161 was to like effect:

"I would however decide to express my agreement with what was said by my noble and learned friend Lord Cohen in Morris' case where, after reviewing what had been said on this subject in Paris v. Stepney Borough council and considering the language used by Parker, LJ in the case under consideration he said:

Lord Keith to like effect at p 166:

"An employer is bound to take reasonable care for the safety of his workmen and in every case the question is whether the circumstances are such as to entitle judge or jury to say that there has or has not been a failure to exercise such reasonable care. It is immaterial in my opinion whether the alleged failure in duty is in respect of an act of omission or an act of commission. But where it is an act of omission that is alleged I think it will be found, in the absence of evidence of practice, that the circumstances will rarely, if ever, lead judge or jury to hold that there was negligence unless the precaution which it is suggested should have been taken is one of a relatively simple nature which can readily be understood and commends itself to common intelligence as something to be required."

My answer to the question which I posed "Should the defendants have done more?" is "No". It is not therefore necessary for me to consider the issues of "volenti non fit injuria", contributory negligence, damages or even what sum to award for submitting to the ministrations of bone setters. The claim of the plaintiff, who on the 12th of September 1980 was awarded HK$80,535 under the Employees' Compensation Ordinance, fails.

(1)    1969 1 W.L.R. 661

(2)    Bar Library Transcript No. 327 of 1963 and briefly reported in (1964) 108 Sol. Jo. 14

(3)    1974 1 W.L.R. 527

(4)    1959 A. C. 743

(5)    1960 A.C. 145

Representation:

Mr. Thomas Lai (D L A) for Plaintiff

Mr. E. C. Mumford (Stevenson & Co.) for Defendants