Yeung for Kan v. Attorney General

HCA001254/1978

Negligence - explosion on trawler - finding on the facts that Marine Department officer did not attempt to start engine, a spark from the starter motor of which, was the most likely cause of the explosion.

Negligence - remoteness - liability would not have been established applying the Wagon Mound principles.

Trespass to goods - just as in nuisance and trespass to the person, foreseeability is the proper test for remoteness.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Fuad, J.

Date of Judgment: 29th October, 1981.

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JUDGMENT

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1. On the afternoon of the 6th April 1977 motor fishing vessel No. M61045A owned by the plaintiff Mr. YEUNG For-kan exploded and sank in Aberdeen Harbour. The explosion had tragic results indeed for those on board at the time. Three Marine Department officers lost their lives: Mr. T.A. Davidson, Mr. WONG Wai-shing and Mr. LEE Wing-tak. Those injured in varying degrees of severity were the plaintiff himself, three of his young children, two members of his crew (Mr. HO Tim and his son HO Chi-kwan), Police Sergeant WONG Chi-wo, P.C. LEUNG Wai-hing and Marine Assistant CHEUNG Wing-yan. A member of the crew of another fishing vessel moored nearby, Mr. CHAU Wai-hung, also received injuries.

2. The plaintiff's vessel was a wooden trawler built in 1969 and he bought it in September or October 1976. It was powered by a 6 cylinder, 152 h.p. diesel engine and there was an auxiliary engine of 60 h.p. Both engines had 24 volt electric starters and the lighting system was 220 volts, D.C. provided by the auxiliary engine. The trawler's overall length was 77'9" and overall breadth 21'11". Access to the engine room was by a hatchway inside the deckhouse and by a second hatchway aft. Apart from such ventilation as was provided by the two access hatches, one protected by the deckhouse and the other by a superstructure, the engine room was ventilated by a 6" cowl vent. The aft hatchway had a 8½ high coaming around it, while the deckhouse hatchway had no coaming. From each hatch to the engine room there was a metal ladder.

3. The plaintiff, now aged about 48, has been a fisherman all his life, as was his father before him. He had been fishing in the South China Seas for 20-24 days and brought his vessel into Aberdeen Harbour on the 4th April 1977. He sailed to Lamma Island and back on the following day which was the Ching Ming Festival and because of the festival, Aberdeen Harbour was particularly crowded. It seems that it was for this reason that he berthed his trawler within 50 feet of the "Jumbo" floating restaurant, and therefore within a prohibited area.

4. There were three liquid petroleum gas ("L.P.G.") 20 kilogram cylinders on board for cooking purposes. One was still in use and was stowed near the galley in the forecastle. The other two had been used up and had been placed in the after end of the deckhouse between the engine room hatchway and the opening in the deck through which passed the "vee-belt" drive from the auxiliary engine to the trawl winch on deck. It will be convenient here to say something more about these cylinders and the properties of the gas with which they were filled. The experts who gave evidence before me, and the others whose reports I have seen, broadly agree as to the following. When a cylinder is nearly empty the vapour pressure is reduced to such a degree that it becomes insufficient to sustain a flame at the appliance to which it is attached. An ordinary user would naturally conclude that it is therefore empty. But such is not the case for there would be a residue of liquid and gas which might amount to 1 1b. to 2 1bs. in weight. Since the vapour pressure is so low, the seal at the non-return valve would depend mainly on the action of the spring in holding the valve against its seating. A very slight pressure with a probe would be sufficient to open the valve and release the remaining gas because the springs used in that particular type of cylinder valve are of only light compression.

5. L.P.G. contains a substance designed to give warning of any leakage by its offensive smell. While this "stenching agent" would be readily discernible in an unpolluted atmosphere, it is doubtful whether it would dominate over the other smells present on board vessels of the kind the plaintiff owned, such as those of fish and diesel oil. Since L.P.G. is heavier than air, any leakage from the supposedly empty cylinders in the deckhouse would have passed through the openings in the floor of the deckhouse into the engine room, for neither the hatchway nor the "vee-belt" openings had coamings surrounding them and the deckhouse structure itself would have reduced the chance of dissipation by air currents. Once in the engine room, the gas would seek the lowest level and if the engine was not in use, with the minimal ventilation that was present, it would not disperse for a considerable time. A quantity of only 4 1bs. of L.P.G. in weight would be sufficient, if ignited, to cause an explosion of the severity which occurred. And everything pointed to a gas explosion. If the concentration of L.P.G. was right, the smallest spark would ignite it.

6. Nobody can now be absolutely certain what caused the explosion which brought about so much misery to so many people, but since the experts on both sides agree that the most likely cause was the ignition of L.P.G. in the engine room I have no hesitation in so finding. I also accept the expert opinions that the L.P.G. was set off by a spark in the engine room and that the explosion would be virtually instantaneous. I also conclude, on the evidence before me, that nobody on board that day could reasonably have been expected to be aware that the discarded cylinders were not in fact quite empty and that L.P.G. had leaked down into the engine room. Throughout my consideration of the evidence in this case, as will be seen, I have borne in mind, as I must, the old and sensible adage that it is easy to be wise after the event.

7. How did those killed and injured come to be on the vessel at the time it blew up? The plaintiff had been repairing the exhaust system of the main engine. Mr. HO Tim was on deck. His son Ho Chi-kwan (then a lad of 14 learning the ways of fishermen) had been helping the plaintiff in the engine room by holding an electric torch for him, but had also come up on deck, where the plaintiff's three children were playing. Mr. Davidson, quite clearly in the execution of his duties, boarded the vessel with his assistant Mr. WONG Wai-shing. Mr. Davidson proposed to proceed against the master of the vessel (and the master of another one nearby, also within the prohibited area of 50 feet from the Jumbo Restaurant) for a breach of the regulations. He summoned the help of the Marine Police and shortly afterwards Sergeant WONG Chi-wo and P.C. LEUNG Wai-hing went on board to assist him. Mr. Davidson also hailed a passing Marine Department launch and ordered Marine Assistants LEE Wing-tak and CHEUNG Wing-yan aboard. It was shortly after this that the explosion occurred.

8. The factual basis of the plaintiff's case is that Mr. Davidson without authority, attempted to start the vessel's main engine and in so doing caused a spark to occur in the engine room, resulting in the explosion. I will now discuss the evidence led about the ways in which the main engine could be started. It was accepted on behalf of the defendant, and is therefore common ground, that on the woodwork of the aft access hatch to the engine room, the plaintiff had fixed a starter button. It is also common ground that at one time there had also been a starter button on the starter motor itself, at the rear of the main engine. Mr. YEUNG For-kan explained that he had added the starter button on the framework of the rear access hatch very soon after he bought the trawler so that he could make a quick get away if he should be spotted fishing within prohibited waters by patrol boats from the Chinese Mainland. At the time of the explosion, the starter button at the rear end of the engine (the only one which had been part of the vessel's original specifications) had been removed. The plaintiff told the court that he had taken the starter button off after his return from his 24 days fishing trip, a day or two before the explosion, because it was defective. He said he had cut the wires straight through with scissors. He had not bared the ends of each of the wires which had been connected to the starter button by stripping off the isulating rubber casing.

9. Mr. HO Tim testified that a few minutes after Mr. Davidson had come aboard, he had seen him lean over and press the starter button at the rear access hatch, immediately after which the explosion had occurred. The plaintiff's evidence was that as he was putting the finishing touches to his work on the exhaust system he had heard the main engine turn, perhaps four or five times, and smoke and sparks were seen to come out of the gap in the exhaust system. He had been squatting at the front part of the engine, but since debris immediately started to fall down the forward access he had rushed up the ladder in the rear access hatch in fear of his life. None of the defendant's witnesses saw Mr. Davidson push the starter button but, again, none of them was able to say that he was watching Mr. Davidson at the vital moment so as to be able to discount the possibility that he did.

10. Since Mr. YEUNG For-kan was adamant that he had not attempted to start the engine himself while in the engine room his evidence, taken with that of Mr. HO Tim, would establish that it was indeed Mr. Davidson who caused the engine to turn. The expert evidence was to the effect that if an attempt had been made to start the engine, sparks that would inevitably come from the starter motor, would have ignited the L.P.G. in the engine room.

11. I will now deal with the impression I formed of the plaintiff and Mr. HO Tim while they were giving their evidence before me. As was to be expected they each spent many hours in the witness box. Neither received a formal education but each demonstrated as clearly as could be that they were intelligent and full of common sense. With experienced counsel examining them, and the services of an excellent interpreter, they had no difficulty in understanding what was put to them, or making themselves understood. Although they were speaking of events that took place 4½ years ago and each was seriously injured (Mr. YEUNG For-kan much more seriously than Mr. HO Tim) in what must have been a most traumatic series of events, their several recollection of what they said happened was confident, detailed and precise.

12. Of course how the engine was started (if indeed it was started) on that said day is crucial to the case. And so evidence about the manner in which the engine was customarily started assumes special importance. The plaintiff told the court that he never started the engine by putting together the two wires from the disconnected starter button at the rear of the engine. However he told Mr. Pierce in a statement that was read over and confirmed by him in May 1977 that "the main engine push button switch was damaged by salt water soon after I bought the boat so the switch was removed and the engine was started by connecting the ends of the wires together. "He had said the same thing in a statement made on the 19th May 1977. I make every allowance in Mr. Yeung's favour on account of the terrible injuries and shock that he suffered, but he was very far from convincing when he was cross-examined on this discrepancy. But this inconsistency does not stand alone. Mr. Pierce observed that each of the two wires that had been connected to the original starter button had been bared at the end and there were indications of pitting on the wires where they must have arced when placed together (and this would indeed start the engine). Moreover the two bared ends can be seen quite plainly in the photographts. When asked about this the plaintiff maintained what he had said in examination-in-chief that he had cut each wire to the starter button clean through with a pair of scissors and suggested that the explosion might have exposed the ends of the wires, a suggestion that Professor Bruges, his own expert, dismissed out of hand as patently absurd. On the evidence as a whole I have no doubt whatever that the plaintiff did habitually start the main engine (when an emergency start from on deck was not necessary) by holding the stripped ends of the two wires together and that he was therefore untruthful upon what I consider to be a critical aspect of the case. In my approach to this part of the evidence I bear in mind that Professor Bruges, an expert with the highest credentials, thought that the most likely source of the spark that ignited the L.P.G. was from the commutators of the starter motor, and his opinion is entitled to great weight. However he did accept that the smallest of sparks would have been enough and that the revolution of the starter motor was by no means the only possible source of a spark, thus confirming Mr. Pierce's opinion on this point. In all the circumstances I am far from satisfied from the evidence of Mr. Yeung, taken together with the expert evidence and that of Mr. HO Tim (I will deal with Mr. HO Tim's evidence presently) that Mr. Yeung saw or heard the main engine start.

13. In reaching this conclusion, I have placed no weight on the evidence of Marine P.C. LEUNG Wai-hing as to what he said he overheard the plaintiff telling a woman visitor in hospital during the night of the day upon which the explosion took place. P.C. Leung impressed me greatly when he was in the witness box and I believe he did overhear the plaintiff, in reply to his visitor's question, say something to the effect he did not know what had happened but that as soon as he had started the engine, the explosion had taken place. I accept this evidence despite the fact this conversation is not recorded in a statement given by P.C. Leung to D/C KWOK Muk-kim on the following day and the D/C said that he had recorded all that he had been told. I believe P.C. Leung when he said that the D/C did not regard the overheard conversation as important and it is not therefore remarkable that the latter had no recollection of it. I decided to put this piece of evidence out of my mind because the plaintiff must have been in great pain and was obviously suffering from severe shock. He might very well have been confused at the time and have been speaking in a daze.

14. As regards the evidence of Mr. HO Tim that he actually saw Mr. Davidson press the starter button on the aft engine room access hatch immediately before the trawler blew up, it must be noted that he did not mention this fact in a statement he made during Mr. Pierce's investigations. More significantly he made no mention of it to the coroner during the inquest on the 15th August 1977. The record shows that what he did say was "A short time after the European officer had passed me I heard a sound of an explosion. I do not know its origin." He might well not have known the origin of the explosion but when referring to the European police officer and the explosion it seems to me quite inconceivable that he would not have told the coroner that he had seen the European officer press the engine's starter button immediately before the explosion, if such had been the case. His explanation that he had been "dragged out of hospital" to give evidence and that he had not been asked about it sounded utterly unconvincing, I regret to have to say. Mr. HO-Tim is shrewd and sensible and I am forced to the conclusion that he did not tell the coroner what he is now saying because he did not see Mr. Davidson push the starter button.

15. It follows that I cannot be satisfied that it has been established on the balance of probabilities that Mr. Davidson (or indeed any other person for whom the defendant is responsible) caused the explosion by any act or omission. Although I have not been able to believe the plaintiff on matters central to his claim, I find myself unable, on the evidence, to reach a finding that he himself deliberately started the engine. In my judgment all that has been established is that a spark in the engine room ignited L.P.G. and caused the explosion which had such grievous consequences to life, limb and property. Despite the painstaking and thorough manner in which counsel elicited the evidence in this long hearing the source of the spark must remain a matter of conjecture.

16. Before the trial began the parties agreed that the Court should first try the issue of liability and so no evidence relating to the quantum of damages was called. My findings of fact will dispose of the action but in case the matter does not end here, and in deference to counsel who addressed me at length on the law, I feel it incumbent upon me to indicate, however briefly, what conclusions I would have reached had I been satisfied on the balance of probabilities that Mr. Davidson had indeed tried to start the main engine of Mr. YEUGN For-kan's vessel by pressing the starter button.

17. It is hardly necessary to emphasize that the Privy Council in The Wagon Mound [1961] A.C. 388 held that in the tort of negligence foreseeability was the criterion not only when considering remoteness of damage but also in establishing the existence of a duty of care. At. p.425 Viscount Simonds said:-

18. My earlier finding that nobody could reasonably have foreseen that there was a build-up of L.P.G. in the engine room would have been available to Mr. Davidson on the issue of liability. I think it is important to stress that on the expert evidence anyone who started the engine while the L.P.G. was present would have caused the explosion, and the fact that the exhaust system had not been fitted completely together was neither here nor there. In the absence of the L.P.G. there would have been no more than an escape of exhaust fumes which the experts discounted as a possible source of ignition. Even the exhaust fumes would not have troubled anyone unless he remained in the engine room. The plaintiff who had admittedly berthed his vessel in a prohibited area might well have wished to move it, despite the gap in the exhaust piping, if only to comply with the regulations and mitigate the effect of his failure to observe them. Had he done so, his vessel would immediately have blown up. As I mentioned earlier in slightly different terms, and as Viscount Simonds said at p.424 of The Wagon Mound, "After the event even a fool is wise." Mr. Davidson's experience was nicely balanced with that of the plaintiff and the latter knew more about his trawler than the former could have done. It is surely an unrealistic argument to suggest that a different standard of care, where there was no cause whatever to take care before starting the engine, should be applied to Mr. Davidson. It is also, in my judgment, unrealistic to suggest that Mr. Davidson would have been negligent to press the starter button "when it was unsafe to do so "for any precautionary measures Mr. Davidson might have taken would not have revealed the presence of the L.P.G. in the engine room, without which no explosion would have taken place.

19. Even if the plaintiff could have surmounted the hurdle on the facts of establishing liability on the Wagon Mound principles, applying the test of foreseeability, the defendant would not have been liable for the damage which ensued.

20. It was no doubt because the plaintiff's advisers anticipated difficulty in proving negligence that there is an alternative cause of action pleaded in trespass. It was contended on behalf of the plaintiff that if Mr. Davidson had attempted to start the engine but negligence was not established, he would still be liable for all the damage that was caused because he pressed the starter button without authority and therefore was guilty of "wrongful interference". It was submitted that where there is intentional interference, however unexpected the consequences, the wrongdoer is liable for any damage which ensues. With due respect to this argument, I find it impossible to accept that the robust and sensible common law has developed in such a bizarre way. The result of such a doctrine (as this case itself so plainly demonstrates) would be wholly unjust, and an affront to common sense. I am bound to say that none of the cases or text books cited to me on this point seem to me to advance such a startling proposition, a proposition I would accept only if forced so to do by the clearest binding authority. No case remotely resembling the facts of this case is to be found upon whose principles the plaintiff can rely. Indeed as shown by The Wagon Mound (No.2) [1967] A.C. 617 foreseeability is the proper test for remoteness of damage founded on nuisance. Nor does trespass to the person lie if the injury to the plaintiff was caused unintentionally and without negligence on the defendant's part (Fowler v. Lanning [1959] 1 Q.B. 426. And in Letang v. Cooper [1965] 1 Q.B. 232 the English Court of Appeal held that when injury to a plaintiff is caused by a defendant's intended act, the cause of action is trespass to the person; when the act is not intended, a plaintiff's only cause of action is negligence. It is difficult to see why different criteria should apply to the tort of trespass to goods. I would therefore have held that the Wagon Mound (No.2) principles (requiring foreseeability as the test of remoteness) applied equally to the wrongful interference with the plaintiff's starter button which has been alleged.

21. The plaintiff's claim is dismissed with costs.

29th October, 1981.

Representation:

J.D. Donnelly Q.C. & William Waung (D.L.A.) for Plaintiff.

R.A. McCallough, Senior Crown Counsel for Defendant.