Toshie Bond v. Tung Shao Lin, Andy
Read the full judgment text of HCA 2055/1982 on BabelCite. This High Court CFI judgment was delivered on 20 January 1984.
1. Mrs. Bond, the plaintiff in this action, is a housewife who lives and at the material time lived on a ketch called "Clipper-One" moored at Dock D, Hong Kong Marina, Hebe Haven. When not engaged in his flying duties for Pan American World Airways, which detain him in Europe for about two weeks in every four, her husband lives and has lived aboard with her. They keep a couple of dogs. Over a period of years Mr. Bond has campaigned against what he considers excessive speed by other power-driven
Cited by 9 cases
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HCA002055/1982 1982 No. 2055 Headnote Torts - Duty of care owed by helmsman of one craft to those on board another in Hong Kong waters - Application of doctrine "res ipsa loquitur" - Approach of inferior court to conflicting opinions of the Court of Appeal - Nursing and domestic services performed by husband for wife causing husband substantial loss of wages - Whether recoverable by wife as special damages in absence of express agreement for reimbursement. ________ The defendant's motorboat passed very close to a slow moving ketch at a speed which produced a strong wave or wake. As a result the ketch heeled over causing the plaintiff, who was at the helm, to fall and injure her back. She claimed damages for her injuries on the footing that the defendnat was guilty of negligence and that the doctrine of "res ipsa loquitur" applied. Counsel for the plaintiff invited the Court to look to English authorities in assessing general damages. By way of special damages the plaintiff claimed a large sum representing the wages lost by her husband in personally nursing and caring for her. She had made no express promise to reimburse him.
1982, No. 2055 IN THE SUPREME COURT OF HONG LONG HIGH COURT _____ BETWEEN
_____ Coram: Hon. Kempster, J. Dates of Hearing: 19 - 23, 30 December 1983, 5 & 6 January 1984 Date of Delivery: 20 January 1984 ___________ JUDGMENT ___________ 1. Mrs. Bond, the plaintiff in this action, is a housewife who lives and at the material time lived on a ketch called "Clipper-One" moored at Dock D, Hong Kong Marina, Hebe Haven. When not engaged in his flying duties for Pan American World Airways, which detain him in Europe for about two weeks in every four, her husband lives and has lived aboard with her. They keep a couple of dogs. Over a period of years Mr. Bond has campaigned against what he considers excessive speed by other power-driven pleasure craft. 2. The ketch, adapted to provide an agreeable home for Mr. and Mrs. Bond, is also used for its ostensible purposes as a sailing and motor cruiser. It is 57 ft. in length, has a beam of 14 feet, displaces 18 tons and is equiped with an array of radio and navigational devices which would not disgrace a spy ship. Mr. Bond is a radio "ham" and transmits "the big weather picture" to sea-going yachts. He holds a master's but not an engineer's certificate of competency from the Marine Department. The plaintiff holds neither. Mr. Bond candidly admits that over a period of years he has, in consequence, been in breach of regulation 7 of the Merchant Shipping (Pleasure Vessels) Regulations Cap. 281. In this he is in pari delicto with the defendant who does not hold an engineer's certificate apt for his motor cruiser which I shall shortly describe. 3. Wednesday, the 17th June, 1981 was a hot and sunny day. At about 6.15 p.m. Mr. and Mrs. Bond were minded to take "Clipper-One" into Port Shelter so that they might enjoy an evening swim. According to their evidence they moved under power into and remained in the middle of the fairway leading in and out of the Hong Kong Marina and maintained a speed of some 2 to 3 knots. The plaintiff was at the port side hauling up fenders and coiling ropes while Mr. Bond was at the helm. Half way down the channel Mr. Bond observed a large white cruiser approaching from the direction of the Man Tau Tsui point ahead of him. It was a 28 foot Bertram, registered number 15496, driven by twin petrol fuelled engines, owned and piloted by the defendant who had five others aboard. They were two friends, Stephen and Edmond Wong, an engineer employed by the Hong Kong Marina, Mr. Tse Wai Sum, a boat boy in the same employ, Mr. Ma Yung Fat, and a friend of Mr. Tse's called Cheng Ngau Chai. 4. Mr. Bond explained that he steered the ketch into the centre of the fairway, some 40 to 50 metres broad at its narrowest point, in order to preclude the risk of fouling loose ropes and debris from abandoned vessels albeit he was strictly bound to keep as near to the outer limit of the starboard side of that channel as was safe and practicable. This duty is expressed in Rule 9A of the International Regulations for Preventing Collisions at Sea 1972 which, at the material time, were applicable in Hong Kong waters by reason of the provisions sections 93 and 111 of the Merchant Shipping (Safety) Ordinance, Cap. 369. The Governor-in-Council had made no regulations under section 93. 5. I now quote Mr. Bond's account of the critical events:
6. When Mr. Bond used the expression "planing" he said he meant that the bow of the Bertram was out of the water so that he could see the blue underside of the hull. He said it was "near planing" all the time. 7. Mrs. Bond, the plaintiff, explained how she came to be in the position in which she was found by her husband:
In cross-examination the plaintiff said she was not paying attention to the position of the ketch in the fairway and that the Bertram was planing throughout. She agreed that her forward view was to some extent obstructed by the masts of the ketch and by an air-conditioning unit. 8. The defendant's account of the matter was that he had been testing the engines of his Bertram in Port Shelter. On his return he slowed down to four or five knots as he passed the Bang Bang Fisheries. He said that at this stage the revolution counters for the Mercury 228 engines showed between 1200 to 1300 r.p.m. or 4 to 5 m.p.h.:-
Apparently the covers of the engines were off. Nonetheless Mr. and Mrs. Bond purported to have heard what was shouted by Mr. Tse. The defendant said he saw Mr. Bond standing on the bow of the ketch as he made his signals and that he remarked to his companions "This man is crazy. He took the wrong course". 9. What is important is that the defendant stated that he passed the ketch at a distance of between 10 and 20 yards. He did not suggest that the position of the ketch in the fairway forced him into close proximity with it. 10. In general terms the defendant's account of the matter was supported by evidence given by Mr. Cheng Ngau Chair, by Mr. Tse Wai Sum, who was testing the Bertram and its engines at the material time, and by the boat-boy Ma Yung Fat. However, I have considerable reserve about the evidence of these witnesses in so far as they relate to the material incidents since they all made similar statements, which were procured and forwarded by the defendant to the Marine Department at its request, in circumstances which suggested to me that their real concern was to support his version of the matter. As Mr. Ma said "The defendant asked me to prove what happened at the time". The three of them wrote their statements on the same occasion in the tea-house which forms part of the Hong Kong Marina and were less than forthcoming in revealing this fact. 11. I return to Mr. Bond's evidence about events subsequent to his wife's fall.
Mr. Bond then described how he saw his wife hobbling towards them; how he helped her back to the car park where she collapsed and how she was taken to hospital. 12. Mrs. Bond's account of these exchanges was very similar. She said:
13. When the boat-boy, Mr. Ma, described the incident on the dock he told me that Mr. Bond sounded friendly! As already indicated I place little reliance on his evidence. 14. Inspector Yeung Hoi Ko of the Marine Department produced a marked chart of Hebe Haven which has been exhibited as D.3". It purports to show in blue the course of the ketch and by red dotted line that of the Bertram. It bears a cross in blue pencil. Inspector Yeung said that this document has been sent by him to Mr. Bond under cover of a letter dated the 6th August 1981. The letter read: "Dear Sir,
15. The Inspector said first of all:
16. The plaintiff admitted that the statements and charts were sent to her and her husband for signature and that they had signed such documents. She said:
It is conceded on her behalf that the red asterisk, the words "see below" and others in red and the signature are in her hand-writing. 17. I find on the balance of probabilities that the marks on the chart in question were made by Inspector Yeung's superior following or contemporaneously with the earlier account of the matter given to him by Mr. and Mrs. Bond and that they acknowledged and accepted that account by returning it signed to the Marine Department. This means that the Bonds were navigating their ketch into open water on their wrong side of the fairway at the material time thereby prompting the defendant to give the interrogatory signal of five blasts on his horn, which I find he did, to take evasive action and to pass the ketch starboard to starboard. 18. What was really the outstanding feature of this action was the anger and indignation expressed by Mr. Bond; immediately after the incident complained of to the defendant; then to the Marine Department and, more recently, to the Court. This indignation may have been fuelled by his continued campaign against motorboat owners who, in restricted conditions, propell their vessels at what he considered an excessive and inconsiderate speed. Be that as may I regard it as genuine; nonetheless so for the forcefulness with which it was expressed. I found myself quite unable to persuade Mr. Bond to use any description more delicate than "arseholes" for those who thus provoked his wrath. 19. If then I find, as I do, that Mr. Bond was expressing genuine indignation from the outset it must follow that there was some reason for it. Prima facie at least the reason was that which consistently he has given namely that the speed of the Bertram and its proximity had caused the ketch to heel over and his wife to fall to the deck and to injure her back in the way she described. Letter before action was dated the 22nd February 1982 and writ claiming damages for negligence was issued on the 15th March following. 20. This brings me into the realm of expert evidence. In a sense Mr. Tse Wai Sum was an expert. He holds a master's licence from the Marine Department, has twenty years experience of marine engines and has worked at the Hong Kong Marina for some 12 years. He told me that a fast moving power cruiser passing close to a larger yacht would cause that larger yacht to roll about to such an extent as possibly to cause a helmsman to loose his grip on the wheel and to fall onto the deck. He further told me "for a Bertram, say, to pass a large yacht at high speed would be a very dangerous manoeuvre". 21. I pass to the evidence of the acknowledged marine experts, the first of whom to be called was Mr. John Hamilton Third, a partner of Brookes, Bell & Co., marine consultants in this territory. Mr. Third has served as a navigating officer in a variety of ocean going vessels. He holds a master's foreign-going and extra master's certificates of competency issued by the United Kingdom Department of Trade and the Royal Society of Arts Silver Medal for Academic Achievement. One of his particular interests is ship motion and response in heavy seas. Mr. Third expressed the view that the capacity of the hull of a power craft to make waves is directly proportional to the loss of energy characteristics. Therefore the maximum wave effect was to be expected when the power-boat was operating in a medium power range insufficient to provide the dynamic lift required for the craft to plane. In that mode the hull form has a relatively large wetted surface and there is significant energy loss. "Certainly such effects will be experienced when the craft is accelerating from full displacement to planing mode and vise versa". I emphasise the words "vise versa". 22. Posing to himself the question "Could a helmsman at the wheel of the ketch 'Clipper-One' be thrown to the deck by reason of a wave caused by a close-passing Bertram:" Mr. Third expressed the view, which was not exactly that opened by Mr. Ford who appeared for the plaintiff, that he could and, on the footing of the evidence he had read, that the Bertram was at the material time moving at a speed producing something near maximum resistance. This, he said would cause the wheel of the ketch to spin. "The wave effect when the Bertram's bow is up could indicate that the Bertram was not planing. You tell by the wash. If clear it is planing. If disturbed not planing. You looked behind the transom. If the Bertram was slowing down there would be increased pressure and if the Bertram passed some two metres from the ketch there would be little room for the wave it caused to dissipate". However, when he looked at photograph 3 in Book 3 of Ex.D.4, Mr. Third expressed the view that the Bertram there shown was planing. 23. Having considered this evidence in the light of all the expertise deployed I believe it to be very difficult for an observer to gauge the critical moment when a boat is commencing or ceasing to plane, insofar as it changes speed at all, thereby producing maximum wave effect. 24. On behalf of the defendant Mr. David Marshall Cauvin was called. He is a British master mariner and a marine surveyor and consultant within this territory also. He owns a 50 ft. sailing yacht displacing 18 tons which he has sailed regularly for the past 5 years and has great experience of small craft. On the basis of the information given to him, including an interview with the defendant in his solicitors' offices on the 2nd August 1983, he formed the opinion that the wakes thrown out by fast power boats could cause a ketch like that of Mr. Bond to roll and its wheel to spin and even, if the power boat passed close enough, to roll 10 or 15 degrees. But at no time had Mr. Cauvin found that the spinning of the wheel on, say, a ketch had sufficient torque to have knocked anyone over nor had there been sufficient thrust on the rudder from a passing speed boat to spin the wheel hard over. 25. Mr. Cauvin had carried out certain tests with a Bertram but none at that critical speed between full displacement and planing described by Mr. Third. He did, however, express this view:
26. Mr. Cauvin was also asked about the unauthorised manual signals given by Mr. Bond which were apparently understood by the defendant as an invitation to pass the ketch to starboard. I do not think it necessary for me to make any finding in relation to them save that they were liable to be misunderstood. Rather like the issue as to whether the fairway was straight or curved the efficacy of Mr. Bond's signals has no direct relevance to the issues which I have to determine. 27. The final piece of evidence to which I should refer in relation to liability is a statement made by one Rosemary Nease admitted in evidence pursuant to section 47 of the Evidence Ordinance Cap. 8. Having regard to its contents it is reasonably apparent to me that Rosemary Nease was indeed an eye-witness. Her statement reads as follows:
28. Making due allowance for the fact that Rosemary Nease has not been available for cross-examination and is admittedly out of the jurisdiction by reason of her indebtedness to many creditors here I regard this statement as genuine and reliable and so find after taking into account the opinion of Mr. Cauvin that the position of Rosemary Nease's vessel would not have allowed her a very good view of what transpired if the two vessels passed each other at a particular point on the fairway. I am not, on the evidence available, prepared to say exactly where on the fairway the two vessels in question did pass each other nor to make deductions from "collision mathematics". Certainly I do not regard the word "wake" where it appears in the letter before action and in the Statement of Claim as a term of art. 29. I find on the balance of probabilities that the plaintiff fell in the way she described. Her evidence was given with care and confidence and, as Mr. Ford candidly conceded, was perhaps to be contrasted with the rather aggressive and possibly exaggerated testimony of her husband. Finding that she so fell I am further satisfied that she did so following the passage to starboard of the Bertram. From this I find that the passage of the Bertram caused the ketch to roll and the rudder violently to move the wheel of the ketch. I also, necessarily, find that at the material time the Bertram must have been moving at the critical speed to which I have already alluded albeit several witnesses thought that the Bertram had been planing as it approached. It may be that they were right and that the defendant decreased speed to some slight extent as he turned to port in order to pass the ketch. 30. I do not find that "Clipper-One' s" incorrect course on the fairway, failure to sound its horn or the change of helmsman to any degree caused or contributed to the plaintiff's fall. Had the helmsman attempted to change course on the approach of the Bertram a collision might well have ocurred. 31. In the premises it falls to consider what duty of care was owed by the defendant to the plaintiff and then whether any such duty was broken. It is happily common ground between the parties that a duty of care is owed by the helmsman of a powered vessel to other vessels and their occupants which and who may be affected by the course he steers and by the speed at which his craft is propelled. This would appear to involve a fresh application of the doctrine described by Lord Atkin in Donoghue v. Stevenson(0) at page 580. On the other hand the helmsman is entitled to assume that persons on other craft which may be affected by his steering or speed will take appropriate measures to protect themselves from the day to day incidents of marine navigation; for example, by bracing themselves and holding on to firm parts of their craft when an unusual wave is to be anticipated. Again it is common ground that, in this instance, to establish a breach the plaintiff must satisfy the Court both that the defendant's boat passed so fast and also so close to the ketch as to cause the wave or wake or both which in turn caused the ketch to roll and the helmsman, being properly braced, to fall and sustain the injuries described by the plaintiff and by Mr. Wedderburn. 32. I find that the defendant was in breach of his agreed duty and that the plaintiff's injuries were indeed caused by his speed and proximity to the ketch when passing. "But in all difficulties one owed a duty to one's fellows and a man did not discharge his duty to his fellows if, in a position where he could stop and take stock" as the defendant with his easily manoeuverable craft could have done "- he chose merely to proceed" "The Acclivity"(1) at page 202 per Langton J. The defendant proceeded even when he thought the ketch was in some sort of trouble. 33. The doctrine of res ipsa loquitur has no application to circumstances where so much is known as in the present case. It is not a situation where the plaintiff has proved matters calling for a rebuttal from the defendant. 34. In relation to damages Mr. Ford has invited me to look to the decisions of the English Courts in order to determine the proper sum to be awarded to the plaintiff. In so doing he necessarily relies upon the decision of the Court of Appeal in Li Ping Sum v. Chan Wai Tong & Ors(2) where Barker, J.A. giving the judgment of the Court said:
This opinion was expressed to depart from that given by Cons, J.A., also giving the judgment of the Court, in Lee Ting Lam v. Leung Kam Ming(3) at page 659 namely:
35. Faced with this apparent conflict which cannot effectively be resolved until the decision of the Privy Council in Li Ping Sum v. Chan Wai Tong (2) a puisne or District judge or a master can only turn to decisions of the Judicial Committee for guidance in making an election. In Jag Singh v. Toong Fong Omnibus Co. Ltd (4) at page 1385 Lord Morris of Borth-Y-Gest used these words:
That passage was approved and followed by the Privy Council as recently as 18th July last in the case of Ratnasingam v. Kow Ah Dek(5) at page 1237. Both appeals, as a matter of interest, derived from the Federal Court of Malaysia. For the present I propose to look to decisions of the courts in this territory for guidance. on quantum of damages for personal injuries. 36. In hospital the plaintiff was initially subjected to traction. Though X-ray of the spine showed no abnormality a slipped disc was suspected. She was discharged from hospital after three days but continued to suffer back pain. Indeed, she indicated that she suffered at least a degree of discomfort while sitting in court. During 1982 a deep water expedition in "Clipper-One" had to be ahandoned because the plaintiff suffered considerable pain after operating a winch to reduce sail and in about April of that year she slipped while climbing the mast. Again she felt considerable pain in a particular localised area of her back. 37. Mr. Wedderburn, who has examined the plaintiff on several occasions, found that the site of the pain suggested a fracture of the left side transverse process of vertebra lumbar 4 albeit no such fracture was apparent on X-ray. Further or alternatively he considered that she sustained severe muscle and ligament tears adjacent to it. Prior to the two incidents in 1982 the plaintiff had, in Mr. Wedderburn's view, recovered from the pain and discomfort attributable to the incident in Hebe Haven. It was the sort of injury which, in his view, always heals up completely in the end. This should be particularly true of the plaintiff who is a gymnast and maintains her physical fittness and agility. I should add that Mr. Wedderburn examined a steel eye of the type screwed to the batten on the deck of the ketch and expressed the view that if anyone fell backward on to such an eye a fracture-of a lumbar process might well be caused. 38. In all the circumstances the sum appropriate to compensate Mrs. Bond for pain, inconvenience and loss of amenity is, in my view, HK$22,000. 39. By way of special damages the plaintiff claims an agreed sum of US$9,750 being wages loss by Mr. Bond through remaining in Hong Kong to look after her. Two questions seem to arise. The first is whether it was reasonable for Mr. Bond to sacrifice substantial wages to be at his wife's side and, secondly, whether the amount of these wages is in any event recoverable by the plaintiff in the absence of her express agreement to reimburse him. In my opinion Mr. Bond's decision to stay with his wife when the gravity of her physical condition was uncertain rather than to return to his duties in Europe was quite proper and particularly so when one considers that the domestic circumstances of the Bonds were somewhat unusual in that they were living on a boat, which is not quite the same as living in a house or a hotel or a nursing home. Nurses acquainted with conditions afloat are not readily available. As to the question of agreement for reimbursement the answer was given by Megaw L.J. in Donnelly v. Joyce (6) at page 462 where he said:
40. In the present instance Mr. Bond nursed his wife who was in bed for several weeks. He did the chores and he helped her to the bath. In the circumstances I find that the plaintiff reasonably required her husband's help and is entitled to recover by way of special damages this agreed figure of US$9,750 or the HK$ equivalent at the time of payment. It is conceded, subject to liability, that the Plaintiff has suffered special damages in the sum of HK$105.00.
(0) (1932) A.C.562 (1) (1937) Lloyds Report 201 (2) (1983) C.A.53 (ao yet unreported) (3) (1980) H.K.L.R. 657 (4) (1964) 1 W.L.R.1382 (5) (1983) 1 W.L.R.1235 (6) (1974) 1 Q.B. 454 Representation: Michael Ford (Oliver & Driver) for plaintiff Miss Maria Yuen (Fairbairn & Kwok) for defendant |
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