Yuen Wai Ling and Others v. Ocean Shipping and Enterprises Ltd

DCEC000172/1983

VDC ECC No.172 of 1983
Scriven D.J. 19.4.1984

Master & Servant

Employees Compensation Ordinance (Cap.282)

Malaria contracted on sea voyage had to be "accident" and arising out of and in course of employment.

(Appeal dismissed by Court of Appeal 1984 No.77 28 September 1984)

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

EMPLOYEES' COMPENSATION CASE NO. 172 OF 1983

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BETWEEN

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Coram: H. H. Judge Scriven in Court

Date: 19 April 1984

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JUDGMENT

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1. This is a claim brought by YUEN Wai-ling the widow of WONG Ping-chuen for herself and the other dependents of WONG Ping-chuen (the deceasad) arising out of his death on 6th August, 1983, and for compensation under the statutory provisions of the Workmen's Compensation Ordinance, (The Ordinance).

2. The deceased, a ships messboy, died in Walvis Bay South Africa on the 6th August, 1983 and the following facts are agreed :-

I had no oral testimony of any relevance to throw any more light on the deceased actions at any material time, but I took in, with no objection or qualification (as Ex. No. 1.), the affidavit sworn on the 10th April, 1984 of the Master of the Ocean Strength. This showed that the ship was air-conditioned at the material time except as to the Galley, and that the deceased duties were those of cleaning cabins and waiting at table, and that he would occasionally go to the Galley to collect food to serve at the tables.

3. The ship called at various West African ports in the course of a journey starting on the 16th May, 1983 at Yukohama and ending on the 30th August, 1983 at Kobe.

4. The deceased joined the ship in Hong Kong on the 29th May, 1983 and after leaving Hong Kong on that day the ship called at Singapore and then at the following West or South West Africa ports:-

5. The master's Affidavit showed that the deceased first complained of severe headaches on 30th July, 1983 while the ship was at Abidjan on the Ivory Coast for the second time on that voyage. He was there sent ashore to see a doctor and he was given an injection, but his condition worsened over the next few days. He was treated as the master says "as per the Ships Captain's Medical Guide" but his condition continued to deteriorate so he was put ashore on the 5th August, 1983 at Walvis Bay, where he died next day, and the master says in his affidavit "I have since been told he died of Malaria". From that deposition it is clear that his illness was not previously diagnosed to the master's knowledge and that he was given no specific, anti-malarial treatment on board. It is not clear what the doctor in Abidjan had treated him for.

6. The cause of death was therefore Malaria. This is not an "Occupational Disease" for which the Ordinance provides for payment of compensation, and so the Applicant has to show that the incidence of Malaria was an "accident". The accident for which the Applicant contends being the bite of a malaria bearing mosquito known as Anopheles.

7. I had evidence from Dr. Robert Wedderburn of Kowloon. He did not purport to specialise in Tropical Medicines, but he has treated a large number of patients in Hong Kong and India over many years, has had malaria 9 times himself, and I am prepared to accept him as qualified to give evidence in the general field of this disease to which he testified. His opinion was that malaria can only be transmitted by the bite of the Anopheles mosquito or by a transfusion of blood from an infected person. Dr. Wedderburn had given an earlier report in which he said he had no doubt in his opinion that the deceased had caught malaria while on shore leave when the ship called at Tema, Ghana. He had not then had the ships voyages described to him in detail, showing the return voyage to Abidjan for the second visit. He described the absolute parameters of incubation of the disease as being between 9 to 30 days, but the most common period being between 10 to 12 days, after being bitten, so that if the deceased had complained for the first time of severe headaches on the 30th July, 1983, then in Dr. Wedderburn's opinion he had most likely contracted the disease whilst the ship was at Douala between 19th and 25th July, 1983.

8. Dr. Wedderburn described the onset of the symptoms and the present day treatment with drugs such as chloroquin. There is no evidence in this case as to the type of malaria or plasmodium which the deceased suffered but Dr. Wedderburn described to me that even if it became malignant or cerebral (falciparum) the recovery rate is about 80%, but to secure that intravenous treatment must be given, which he thought would be beyond the range of most ships captain's skills. I do not know from the evidence what treatment either the ships master or the Walvis Bay Doctors gave, but I accept Dr. Wedderburn's evidence as showing that in the present state of medical knowledge each form of malaria can be treated with every chance of success and that the initial treatment, namely of choloroguin on quinine is likely to lead to recovery.

9. The Master's affidavit puts it as a probability that the deceased went ashore at Douala because he says :-

"Records are not kept of when any crew member takes shore leave. I know personally that Wong went ashore at Abidjan and that he did not take shore leave at Apapa. I enquired from the chinese crew and the Chief Officer who confirmed that Wong took shore leave at all ports except Apapa. "

Mr. Whitley, for the Applicants does not contend that the deceased went ashore on the ship's business and concedes that his employment would be interrupted while ashore on his own businass. He further submits that unless the mosquito is proved to have bitten the deceased while on shore leave, the accident of the bite was sustained in the course of his employment.

10. Dr. Wedderburn described his own experience on a troopship in 1940 on West Africa and said that to the best of his knowledge mosquitoes had a range over the sea of about half a mile from shore but there is no suggestion here that while the ship was at any port it was other than within the port. I had no evidence as to the method of unloading at Douala, that is to say whether the ship came alongside the dock or stood out to sea. In any event it would be most unusual for any person let alone the personal representatives of a deceased to know exactly which bite, and where it was sustained, was the one which led to say infection. I think it follows from Agreed Fact No. 4 :-

11. "4 Malaria is endemic on the West Coast of Africa. "

that the bite could have been received on the ship even if it is air-conditioned, or on shore. I have to remember that the Galley is not air-conditioned and I must take judicial notice of the fact that there must be deck spaces which are not air-conditioned even though the Master calls it fully air-conditioned. The ship was calling continuously at West Africa ports from 23rd June to 31st July, a period of 5 weeks during which time she was in port for 33 days in all and not being at sea, between ports of call, for more than 2 days in any case. It would I think be slightly imaginative to suggest that during those 33 days in port in an area where the risk of malaria is endemic that the deceased was only at risk for mosquito bites while ashore and never while on board.

12. In truth Mr. Mackenzie Rose has not made any submission to that effect but he has put the Applicant to proof of his being bitten on board ship and referred here to the evidence of Dr. Wedderburn that when reporting in writing on the 24th October 1983 he had said he had no doubt that the Applicant had caught Malaria as a result of being bitten on shore leave. In evidence to me he said that when reporting he had not been given the ships itinerary and did not realize that after leaving Douala it went back to Abidjan before finally heading for Walvis Bay. He had estimated the date when the disease would have been contracted as between 14-17th July. Having seen the itinerary included in the agreed facts he described the strain of disease of which the deceased must have died (Plasmodium Falciparum) as being so virulent that the incubation period is usually 10 days or 10-15 days at the most, so that with complaints by the deceased of headaches on the 30th July for the first time, this would have meant infection at some time between 15th July while the ship was at Tema and the 25th July while she was at Douala.

13. The ships Master gave evidence in his Affidavit that no records were kept of shore leave but "that his enquiries from the crew and the let officer indicated that the deceased went ashore at all ports." I only accepted the Affidavit to be read saving all just exceptions and the evidence of information from other crew members, is of course hearsay, I do not accept it, and if the Respondents wish to prove a fact by affidavit testimony it must still be the beat evidence of that fact, and the 1st officer or crew members could have been asked to depose to their own affidavits of matters within their own knowledge.

14. Now as to the central questions and whether the accident arose out of and in the course of the employment, the Applicant in seeking to show that it arose out of the employment has placed great reliance on the judgments of their lordships in the House of Lords case of Dover Navigation Co. Ltd. v. Craig⁽¹⁾. That case arose from the deaths of several crew members from yellow fever and or malaria, in a voyage to West Africa in 1936. I think the underlying principle is to be found in the editorial headnote namely that the Applicant has to show that if it was, as in this case, a place where there is a health hazard to all, then that he was there only because of his employment. This applicant has shown that, but Mr. Mackenzie Ross says quite rightly that different considerations apply now 40 years later - and in the light of Dr. Wedderburn's evidence he is right - there are now prophylactic medicines available to kill the bacteria introduced by the mosquito bite, and that these are effective and reduce the risk of infection by as much as 90%, but Dr. Wedderburn had to point out, that with cerebral or malignant malaria intervening, intravenous injection would be necessary to treat the disease which the ships captain would not usually be qualified to apply.

15. What has really happened over the last 45 years in West Africa is not therefore that the risk of being bitten by a malarially infected mosquito has decreased, but that the methods of putting a Barrier between bite and infection have decreased the chances of contracting malaria. That is to say that the accident of being bitten by en infected insect is in my judgment no less likely now than 40 years ago, even though considerarily reduced in this case by air-conditioning, so that in principle the tests to apply now are exactly the same as they were 45 Years ago. In Dover Navigation Co. Ltd. v. Craig it was never in dispute that the injuries arose in the course of the men's employment, and the tests to which I have referred only went to establish whether they arose out of the employment - the causal connection. So far as can be read from the All England Report there is no suggestion that the man's deaths arose in the course of their employment, solely because the accident of being bitten occurred while they were at sea or on board, as distinct from ashore; indeed the judgment of Lord Atkin suggests visits to Dakar, Kaolakh and Ziginchor. It is true that air-conditioning was an unlikely luxury in a pre-war tramp steamer, but it does not appear to have been a matter of any great moment whether the bites were sustained aboard ship, or ashore, when the course of employment might have been interrupted. I feel therefore that to some extent the precision as to the place of the bite which the parties and the court have been striving for, is not one which the liberal construction of the ordinance, which I am required to give, sustains. The enquiry flows of course from the opinion of Dr. Wedderburn that the most likely place of infection would have been on store. It therefore comes down to a question of the Applicant's burden of proof. Under the old English Workmen's Compensation Acts end as borne out by the case cited to me ⁽²⁾, the workmen had to be able to specify in his Notice where and when the accident occurred, but that is of course rendered obsolete by the provisions of S. 14(1) and 29(1) of our Ordinance Cap. 282 where Provisos (b) to S. 14 (6) provides that, as here, want of notice where the employer has had knowledge of the accident at or about the time thereof from another source, shall not be a bar to proceedings, and in any event the Captain of ship had recorded headaches and collected the death certificate at Walvis Bay showing death due to malaria, so that by virtue of S. 29(a) no sustainable argument on the admitted facts of "no notice" arises.

16. So far as proof is concerned the Applicants solicitor has submitted that it is not possible to establish where the infecting bite occurred. I agree, but I do not think that where there is a seaman living on board a ship for 5 weeks in an area where malaria is endemic and where as here I have not found the accident to have occurred at any particular point of time, to take it temporarily out of the course of the employment, that the applicant can be called upon to assert and prove even on balance that the accident happened on board. That would be quite impossible and against the liberal construction or even the purposive construction of the Ordinance, which I have to remember is not attaching the stigma of even civil liability for any wrongdoing, but merely ensuring that those who are injured while at work and die or are disabled receive some compensation.

17. But for the possibility probability or even likelihood of the bite being sustained ashore, after working hours, this accident would clearly have arisen in the course of the deceased's employment. However likely it may be that the infecting bite was administered ashore, to hold such would be to speculate however slightly against the evidence and strongly against the common sense reconstruction of a general picture of a mess boy on board ship for 5 weeks in a malarially infected area. I decline to do that and I hold on the facts that the accident in the shape of the bite which infected the deceased was an accident occurring in the course of his employment. The old doggerel "Beware - beware the bight of Benin. Few come out though many go in!”seems to be as true as even now.

18. Having so held then, on the authority of Dover Navigation Co. Ltd. v. Craig it follows that the accident also arose out of the employment, but should I be wrong Section 5 (6) of Cap. 282 provides that an accident arising in the course of an employees employment shall be deemed in the absence of evidence to the contrary also to have arisen out of that employment.

19. There are other matters to which I have been referred : in the Master's affidavit there is reference to medical supplies on board the ship including anti-malarial pills of a proprietory brand which may have been paludine.

He then goes on to say :-

"and crew members are encouraged to take them. Prior to arriving on the West Africa Coast the second officer places a bottle of Anti-Malarial pills in each messroom. Each Department Head is informed but in any case all crew members know what the pills are. The bottles are replenished when required. I do not know however whether Wong (the deceased) took any. "

That affidavit or the extract I have just quoted adds nothing, it must have been drafted by someone quite ignorant of the primary and basic rules of evidence. There is not one admissible phrase until the Master says he did not know if Wong took any of the pills. Mr. Mackenzie Ross very properly never tried to raise the value of that document to evidence amounting to wilful misconduct and no such defence is pleaded, but Mr. Whitley felt it necessary to submit that the failure to take prophylactic pills even if proved would not amount to wilful misconduct. That is in my view correct, although I have to confess that Mr. Whitley appears to be over-estimating his difficulties. I cannot find wilful misconduct (which by virtue of the proviso (b) to S. 5(1) would mean that compensation otherwise payable would be disallowed) to have been raised in the pleadings or in argument or submissions, but the onus of proving that would in any event lie on the Respondents, and the nebulous references to prophylactics being available, which I have referred to from the Master's affidavit makes it clear to me that far from there being any suggestion of wilful misconduct on the deceased's part, the picture that emerges is of great lack of initiative on the part of the Respondent's in failing to have a regulatory system for ensuring that persons such as this deceased, a young mess boy making his first trip to the West Coast of Africa, took anti-malarial drugs, and where some paternalistic advice at least is clearly called for, or regulations as to taking prophylactics shown to have been broken, before the Respondents could seek to establish wilful misconduct.

(1)    [1939] 4 A.E.R. p. 558

(2)    EKE v. Hart Dyke 1910 2 KB