Yeung Man Yee and Others v. Kam Shing(A Firm) and Others

HCA001559/1980

Negligence - personal injuries - 6 persons injured on board fishing trawler in Aberdeen harbour by explosion in engine room - liability sole issue - explosion caused by LPG residue in apparently empty LPG cylinders leaking into Engine Room - ignited by engine spark causing explosion - LPG cylinders manufactured by 3rd defendant and sold to 2nd defendant distributor for retail sale to consumers - plaintiff owner of trawler purchased LPG cylinders from 2nd defendant which were conveyed to trawler by 1st defendant - whether manufacturer and distributor liable to plaintiffs - whether 1st defendant seller or supplier or merely gratuitous carrier - Held: 1. manufacturer and distributor both failed to warn plaintiff purchaser that apparently empty LPG cylinders contained a dangerous residue of gas which if valves defective might leak; 2. manufacturer supplied LPG cylinders with poorly designed valves which were liable no become defective; 3. 1st defendant merely gratuitous carrier and not liable; 4. 2nd and 3rd defendants both negligent and liable in damages to plaintiffs; 5. No contributory negligence on part of plaintiffs.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

H.C. Action Nos. 1558-1563 of 1980

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Coram: Deputy High Court Judge Cruden

Date of Hearing: 1 to 4 March, 7 to 9 March 1988

Date of Judgment: 17 March 1988

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J U D G M E N T

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1. On 6th April 1977 the plaintiffs were all on board a fishing trawler Registered No. M 61045A, which was moored in Aberdeen Harbour, Hong Kong. The trawler was owned by the plaintiff Mr. Yeung For Kan. The 3 infant plaintiffs are the children of Mr. Young For Kan and his wife Madam Kwok Tai Kam. The remaining plaintiffs. Mr. Ho Chi Kwan and Mr. Ho Tim, were members of the trawler's crew. Mr. Ho Chi Kwan was the son of Mr. Ho Tim. At about 4.10 p.m. on 6th April 1977 an explosion occurred in the Engine Room of the trawler. The explosion caused the trawler to sink. All the plaintiffs were injured. At the time Marine Officer T A Davidson and his assistants Mr. WS Wong and Mr. WT Lee, were also on board and as a consequence of the explosion, they were killed. Four other persons on board were also injured.

2. In the present action I am concerned with the 6 plaintiffs respective claims for damages. Both liability and quantum are contested. On 14th July 1987 a Master, by consent, ordered that the issues at the present trial, be limited to liability. I am therefore only obliged to determine liability and am unconcerned with quantum.

3. The plaintiffs claim that the injuries were caused by an explosion of an accumulation of liquid petroleum gas ("LPG") in the, Engine Room of, the trawler. The LPG, it, was pleaded, was ignited by a spark from the trawler's engine. The Amended Statement of Claim, in paragraph 12, set out the alleged source of the LPG as being as follows:

"12. The source of the LPG which exploded was from the 2 apparently 'empty' cylinders on the deck of the said vessel. At least 1 kilogram or 2 pounds of residue LPG from inside the said cylinders leaked out from the valves or other parts of the said cylinders, down into the engine room where it accumulated by reason of its density."

4. The pleaded source of the explosion was supported by the expert evidence of Mr. S W Pierce, the former Senior Shipping Safety officer of the Marine Department,  DG Clarke, Senior Chemist, Forensic Science Division, Hong Kong Government Laboratory and Dr. EA Bruges, the former Professor of Mechanical Engineering of the University of Hong Kong. On the other hand, Dr. Sarah Liao, the Safety officer of the University of Hong Kong who - was called by the 2nd and 3rd defendants, was of the opinion that the residue from-the 2 cylinders would have been insufficient to cause the explosion which must have originated from elsewhere. Whether the source of the explosion was in fact LPG which had leaked from the 2 cylinders, was one crucial issue which divided the experts.

5. The importance of whether the 2 LPG cylinders were the source of the explosion, arises from the plaintiffs pleaded claim in negligence. On the evidence I accept, that when a consumer can no longer obtain from an LPG cylinder a sufficient flame to sustain the cooking or other apparatus connected to the cylinder, he will turn off and disconnect the cylinder and treat it as empty. It was undisputed that such cylinders are in fact not empty but will contain a residue of gas. The amount of residue will vary, depending on a variety of factors these factors may include the quality of flame required by the user, the user's own idiosyncrasies and the climatic or other temperature of the area in which the cylinder is situated. Both Dr. Bruges and Dr. Liao agreed that in colder conditions, there will be a larger residue than in warmer conditions. I also find that LPG is nearly twice the weight of air and will, when released into the atmosphere, tend to sink to the lowest possible level.

6. The existence of the 2 empty LPG cylinders was first referred to in the evidence of the trawler's owner Mr. Yeung for Kan. The trawler had returned to Hong Kong on 4th April 1977, two days before the explosion, from a fishing trip to the waters off Hainan Island which had lasted for more than 20 days. Before leaving on that journey, Mr. Yeung stated that he followed his usual practice and purchased 3 new LPG Gulf brand cylinders. It is undisputed that those cylinders were filled and supplied by the 3rd defendant Hong Kong Oil Co. Ltd. ("HK Oil Co") at its Tsing Yi Island plant and delivered to its Aberdeen distributor, the 2nd defendant Hip Sang Oil Company ("Hip Sang").

7. The cylinders were taken from Hip Sang and conveyed to the trawler by a Mr. Kwok Tak Kam. Mr. Kwok was a marine hawker who variously carried on business on his own account under the name of Kam Kee and later in partnership under the firm name of Kam Shing. Later it will become necessary to determine first under which firm name Mr. Kwok was either alone or in partnership, carrying on business at the date when he carried the LPG cylinders to the trawler. Secondly, it will be necessary to determine whether the status of the firm was on the one hand that of a distributor or seller or on the other hand that of merely a gratuitous carrier.

8. Returning to the number of cylinders alleged to be on board the trawler at the date of the explosion, Mr. Yeung stated that in addition to the two empty cylinders stored in the deckhouse above the Engine Room, there was a third cylinder in use connected to the stove in the galley. As Dr. Liao was not satisfied that the residue of the two empty cylinders could have provided sufficient gas to cause the explosion, she looked elsewhere for the source.

9. At one stage Dr. Liao maintained that the explosion could have originated from two other sources. One possible source was that as smuggling dutiable goods such as petrol, by fishermen was not uncommon, there may have been petrol stored on board. The other suspected source was that as a LPG lamp was also found in the deckhouse, the possibility existed that there was a fourth LPG cylinder used to provide fuel for the lamp. The latter possibility, the defence urged, was strengthened by at least two factors. First, Mr. Pierce had observed in a photograph,3 objects floating in Aberdeen harbour after the explosion which originally appeared to him to be LPG cylinders and these were in addition to the LPG cylinder secured in the water closet. However later Mr. Pierce stated that he was no longer sure the third object was a LPG cylinder and in any event he did not know whether any of the objects originated from the trawler, as floating cylinders were not uncommon in Aberdeen harbour.

10. Secondly, it was urged that in view of the expense of running the large auxiliary engine, which powered the electricity generator used for the trawler's normal lighting, it was more likely that when the trawler was moored overnight, the LPG lamp would have been used and in any event the auxiliary engine at the date of, the explosion was being repaired and was incapable of supplying power to the generator. Mr. Yeung denied both these allegations. The Court was invited to infer that a fourth LPG cylinder must have been on board. If there were a fourth cylinder that, it was submitted, was the source of the gas which exploded in that event any defective leaking valves on the 2 empty cylinders, or any failure of HK Oil or Hip Sang to warn of the dangers of apparently empty cylinders, would not have been relevant or material.

11. The number of LPG cylinders on board the trawler is therefore an important factual issue. The primary evidence that there were only 3 and not 4 LPG cylinders, comes from Mr. Yeung who was in the best position to state the actual number. He was vigorously cross-examined on this issue but he consistently maintained that there were only 3 LPG cylinders. Mr. Pierce, Dr. Clarke and Dr. Bruges accepted Mr. Yeung's statement as to the number of cylinders, as the primary evidence on which they subsequently reached their conclusions. However, their own independent investigations and calculations provide evidence which is consistent with Mr. Yeung's, statement being true.

12. Mr. Pierce and Dr. Clarke also had the advantage, not enjoyed by Dr. Bruges or Dr. Liao, that they inspected the trawler shortly after the explosion and were able to observe and assess the explosion's aftermath. The fact that the explosion resulted in a series of investigations and judicial enquiries shortly thereafter, also assists in assessing Mr. Young's credibility. Immediately after the explosion the Director of Marine ordered an enquiry under Section 107A of the Merchant Shipping Ordinance, Cap 281 and directed Mr. pierce to undertake the enquiry. Mr. Pierce completed the enquiry and submitted his detailed 32 page report to the Director on 14th May 1977. The Report was produced in evidence in this action.

13. For the purposes of his Report, Mr. Pierce interviewed Mr. Young in Hospital during April 1977. At that early stage, Mr. Young stated that there were only 3 cylinders. In that Report, Mr. Pierce also referred to finding the LPG lamp in the deckhouse with both valves in a closed position. Mr. Pierce considered 6 possible fuel sources which may have caused; the explosion and concluded that it was caused by LPG which had accumulated in the Engine Room. His investigations led him to find that 1 to 2 pounds of gas may remain in an empty cylinder. In addition, he estimated that a quantity of 4 lbs of LPG, mixed with the total quantity of air in the Engine Room, would have been sufficient to produce the explosion.

14. At the hearing conducted by the Coroner on 15th August 1977 into the death of the 3 deceased, Mr. Pierce's Report was produced. At that hearing Mr. Young also, gave evidence when he confirmed that at the date of the explosion, 3 LPG cylinders were on board. Mr. Pierce also stated on that occasion that enough gas could have built up from one cylinder, to cause the explosion.

15. In 1978 Mr. Young unsuccessfully brought High Court Action No 1254/78 against the Attorney General for damages in relation to the same explosion. Mr. Pierce gave evidence for the Attorney General. Dr. Bruges gave evidence for Mr. Yeung. I was referred to parts of the transcript of their evidence. In that action Mr. Pierce confirmed that 4 lbs of LPG would have been sufficient to cause the explosion. Dr. Bruges, using Mr. Pierce's measurements of the Engine Room, calculated that 4.9 lbs would have been sufficient but he considered that the difference between those figures was not significant.

16. During the present hearing Dr. Bruges gave evidence and produced his Report. Dr. Bruges, in the interim, had revised his estimate and considered that a minimum of 1 kilogram or 2.2 lbs would be sufficient and that 4 lbs would be more than adequate. Dr. Bruges was cross-examined on his revised figures. The defence stance was that Dr. Bruges was either unreliable or that recent tests of the residue in apparently empty cylinders, had obliged hire to reduce his figures of the amount of gas necessary to produce the explosion, if his opinion that the source of the gas was the 2 empty cylinders, was stall to be maintained.

17. In reply Dr. Bruges explained that his earlier opinion was given in response to the limited enquiry whether Mr. Pierce's estimate was valid. On the basis of air Pierce's information, Dr. Bruges' calculations came out a little higher. Since the prior action, Dr. Bruges stated he had given the matter more thought and concentrated on the minimum quantity necessary to cause the explosion. In this further consideration he had also been aided by tests recently carried out by the Hong Kong Oxygen Co. Ltd. The main reason for now arriving at the lower quantity was that the earlier larger quantity, had been calculated on the total size of the Engine Room however, as the LPG would have sunk to the lower portions of the Engine Room, a more accurate calculation would be based, not on the total size of the Engine Room, but on the smaller area of that lower portion occupied by the LPG. Hence the revision of his figures from 4.9 lbs down to 2.2 lbs or 1 kilogram.

18. Dr. Clarle, when he gave evidence, stated chat it was difficult to put a precise figure on the minimum quantity of LPG required to produce the explosive effects which he, unlike Dr. Bruges and Dr. Liao, had the advantage of personally observing. If the LPG had been uniformly distributed throughout the Engine Room the amount required would have been 22/4 or 21/2 kilograms. However, he pointed out that the LPG would not be uniformly distributed but would sink to the bottom of the Engine Room subject to its distribution being impeded by physical barriers such as the engine itself and tank These would result in the formation of pockets of LPG in which an explosive concentration would exist. The explosive effects he observed, were consistent with the explosion having been produced by such a pocket. Dr. Clarke estimated that the minimum quantity of LPG gas necessary to produce the explosion, would have been less than 1 kilogram.

19. Dr. Liao, who like Dr. Clark was a chemist while Dr. Bruges was a mechanical engineer considered that more than 3 kilograms of LPG vapour would have been required to cause the explosion. In her opinion the residue in each of the 2 empty cylinders would have been about 1 kilogram, hence they could hot have been the source lu was this opinion which wade the existence of the alleged fourth cylinder, so vital to the defence case. Dr. Liao's investigations led her to the following conclusion in her Report:

"The conclusion is therefore that the leakage of LPG from the cylinder supplying to the mantle Tamp hung over the stern entrance to the engine room is most likely to have caused the gas explosion."

20. For completeness I should add, that Counsel for HK Oil Co. and Hip Sang explained that it was not asserted that at the time of the explosion the LPG lamp was connected but merely that it had been connected at some stage before the explosion. No doubt this concession was made, because the evidence was that the valves to the LPG lamp, on discovery by Mr. Pierce and examination by Dr. Clarke, were properly closed.

21. The tests carried out by Hong Kong oxygen Co. Ltd. referred to by Dr. Bruges, occurred in 1967. Mr. Yeung first obtained 10 apparently empty cylinders which were tested and later obtained 15 further cylinders which were also tested. I accepted Counsel for HK Oil Co. and Hip Sang's submission, that one possible weakness of the tests was that Mr. Yeung produced the alleged empty cylinders and there was no independent examination to establish, whether the original consumers had abandoned them as being empty for their purposes. I record that the tests were organised by Dr. Bruges and that Dr. Liao stated that if she had been able to conduct similar tests, she also would have asked for them to be carried out by Hong Kong Oxygen Co. Ltd. Rather surprisingly she stated that when she attempted to get information relevant to her own enquiries from HK Oil Co. they showed minimal interest and gave her little co-operation.

22. I accept the Hong Kong Oxygen Co. Ltd. tests, subject to the qualification that the original tests were carried out on the assumption that the LPG cylinders had been deemed by the prior consumers to be empty. As to the first test of the 10 cylinders, the weight of the residue LPG ranged from 0, 0.3, 0.4, 0.58, 0.6, 0.98, 2.78, 3.6 to 3.86 kilograms. These figures produce averages of 1.22 kilograms or 2.69 lbs. However, I will refer to the danger of relying upon averages shortly.

23. The second test, comprising 15 cylinders was carried out in August 1987, in very warm weather. This test was more sophisticated. Before the residue was finally measured the cylinders were connected to a domestic type burner and part of the pre-existing residue, was burnt off until it could no longer support a flame. The remaining residue, when measured, ranged from 0.43 to 0.45 kilograms. Dr. Bruges also pointed out that as the cylinders before the final burning, had just been delivered for testing, their residual contents would have been shaken up. The combination of shaking and the summer conditions, would have reduced the final residue available for measuring. Dr. Clarke had also earlier confirmed, that the colder the climate, the more residue will be contained in an apparently empty cylinder.

24. Dr. Liao confirmed the effect of summer conditions on testing. She stated that unaware of the Hong Kong oxygen Co. Ltd. tests, she carried out her own calculations in the light of colder March and April weather conditions. Her enquiries from the Royal observatory indicated that the lowest temperature during those months in 1977 was 11.6 degrees celsius. Adopting that- conservative temperature, she arrived at her residue figure of 1 kilogram for each cylinder. In evidence she expressed the opinion that if she adjusted the August 1987 second test figures to March temperatures, she would expect them to increase to quantities in the region of her own 1 kilogram calculation. This observation considerably reduced the experts differences. I infer that the pre-existing residues would similarly need to be increased.

25. During the earlier enquiries, when a larger minimum quantity of LPG were assumed to have been necessary to cause the explosion, both Mr. Pierce and Dr. Bruges expressed the opinion that both empty cylinders could have leaked to provide that quantity. It was earlier agreed that the chances of both cylinders leaking at the same time was remote. This same issue also arose during evidence in the present trial. Dr. Liao was emphatic that, on the scientific law of probabilities, the chances of both empty cylinders leaking was extremely unlikely. Dr. Bruges observed that coincidence was a strange thing, which at times defies the law of probability. While recognizing that the fact of both cylinders leaking may have been scientifically highly improbable he emphasized it could have happened.

26. Dr. Liao and Dr. Bruges references to the law of probabilities in the realm of science, may have been the spur which emboldened Counsel for HK Oil Co. and Hip Sang to submit that as in law, the civil burden of proof adopts the same criterion the plaintiffs had failed to establish that the 2 cylinders had leaked at the sametime if facts existed in a vacuum, there might have been some force in that submission. However, for present purposes the plaintiffs allegation is to be considered in the light of all the surrounding established circumstances. Those circumstances include the fact that an explosion occurred; its source was probably LPG; 2 empty LPG cylinders were stored immediately above the Engine Room; LPG which leaked from those cylinders would mainly fall down into the Engine Room. In the event, these latter factors Make it unnecessary for the Court to pursue in isolation any senentifie lay of probability.

27. Dealing first with the evidence as to the quantity of residue remaining in the LPG cylinders, I have considered the results of the Hong Kong Oxygen Co. Ltd. tests. These are summarised by Dr. Bruges, in his Report and after averaging, produce 3 different sets of figures. The first test of 10 cylinders produces an average residue of 1.22 kilograms per cylinder. The second test of 15 cylinders is analysed on two different bases. The pre-existing residue found, before the further test burning, averaged 0.88 kilograms. After the test burning, the remaining residue averaged 0.44 kilograms.

28. I have already referred to the fact that Dr. Liao independently arrived at a residue of 1 Kilogram which, she stated, was consistent with the summer test results of 0.44 kilograms. I find that the residue in the 2 cylinders after normal use by a consumer would probably be closer to the first two sets of figures, than to those obtained after the further test burning. Those average figures are both in the region of 1 Kilogram per cylinder. Dr. Liao;s own calculations also result in a figure of 1 Kilogram.

29. I further appreciate that if all the test and other figures, including the post-test burning results, are averaged, the defence case is strengthened. However, averaging a variety of figures, particularly when they are originate from different bases, is an unreliable and at times, even a misleading practice. Dr. Clarke recognised the dangers of averaging when, while giving evidence, he firmly declined Counsel's invitation to consider the averaged results of the Hong Kong Oxygen Co. Ltd. tests Dr. Clarke properly pointed out, that there was such a wide range of values in respect of the individual residues, that averaging would not produce a representative figure. I accept his stricture. The differences in the original residues is so great, that an averaging process would not only obscure significant differences but, unless great care is exercised, could be a source of error mathematically, as well as legally.

30. Looking at the actual figures ascertained by Hong Kong Oxygen Co. Ltd. there are, before the further test burning individual cylinders having above average residues of 3.6, 2.78, 3.86, and 3.56 kilograms. When I take all the evidence relating to residues into account, in the light of the important established fact that a LPG explosion occurred, I find that it is more probable that not, that at least one of those 2 cylinders contained in the region of l kilogram of LPG.

31. The next question is whether 1 kilogram of LPG in either of tile 2 cylinders, was sufficient LPG to fuel the explosion. In considering this issue I take into account that all tile experts were agreed that most of the leaked LPG from the 2 cylinders would have fallen down into the Engine Room. Dr. Lruges thought nearly all the leaked gas would have fallen into the Engine Room except a small amount which may have dissipated into the surrounding air he likened tile LPG gas, although invisible, as being similar in movement to water. The LPG would have fallen down into the lower situated Engine Room, until it found its own level at the bottom of the Engine Room. At the same time he accepted that its progress could have been slowed by obstructions. But eventually it would have settled on the floor.

32. On the other hand, Dr. Liao considered that a higher proportion of up to one-quarter of the leaked gas would have dissipated into the air and only about three-quarters would have entered the Engine Room. She was also of tile view that rather than wholly sinking to the bottom of the Engine Room, the LPG when it met obstructions, would form pockets Dr. Clas it was also of the view that the LPG would, in the course of falling, form pockets in which compared with the surrounding air, explosive concentrations would exist. I am satisfied, given that an LPG explosion occurred in the Engine Room, that a sufficient quantity of LPG gas did leak into the Engine room front those 2 cylinders to fuel the explosion.

33. Before coming to that conclusion I have considered the evidence of Dr. Clarke that the explosion could have been caused by less than 1 kilogram, and Dr. Bruges evidence that 1 kilogram would have been adequate, contrasted with Dr. Liao's evidence that a larger quantity of 3 kilograms would have been necessary. I recognise that Dr. Clarke and Dr. Liao are chemists and Dr. Bruges is a mechanical engineer in practice experts professional knowledge, increasingly spills over into neighbouring areas. So their narrow professional disciplines have at least in the case of Dr. Liao been widened by experience of safety engineering and by Dr. Bruges into chemistry. For example Dr. Bruges has jointly published a book on gases and participated in international programmes on chemical engineering. Dr. Clarke had the advantage, unlike the other two experts, of personally observing the aftermath of the actual explosion.

34. In view of the considerable amount of time spent in analysing the experts detailed calculations and the references to the scientific laws and statistical method used in their research, it is also important not to ignore the reality of the clearly established primary facts, to which I have already referred in addition, it is not unhelpful to be reminded, that the explosion occurred, not under the controlled and antiseptic conditions of a scientific laboratory, but in the working conditions of the Engine Room of an aged fishing trawler built as long ago as 1969. The experts theoretical calculations, while valuable in assisting them to arrive at and explain their conclusions, and also to clarify facts which might otherwise have been obscure, are by themselves rarely decisive of any of the facts in issue. There are simply too many other variables.

35. After considering the evidence, I reject the defence allegation that as large a quantity as 3 kilograms would have been required. I prefer and accept the evidence of Dr. Clarks that less than 1 kilogram would have been sufficient in arriving at that finding 1 also take into account that Dr. Clarke's assessment is reinforced, as to quantity, by the not dissimilar evidence of Dr. Bruges I am satisfied that it is more probable than not, that the source of the explosion was LPG which leaked down into the Engine Room from either one or both, of the 2 apparently empty LPG cylinders, stored in the deckhouse.

36. The next question is what caused the leakage? The plaintiffs alleged that the Gulf valves, used on the two empty cylinders were defective. The 2 cylinders were not recovered but it was common ground that in 1977, for its Gulf LPG cylinders, HK Oil Co. used a valve manufactured in Japan. By 1987 it was also using an American designed valve manufactured in the Philippines. Dr. Bruges tested these different 1977 and 1987 Gulf valves and also compared them with other valves used by Hobil, Shell and Caltex for their LPG cylinders. Mr. Pierce and Dr. Liao also carried out valve testing.

37. Dr. Bruges details in his Report, a number of basic weaknesses of the 1977 Gulf valve. These included the fact that it had a weak spring; no proper seat and the valve spindle was unguided. The 1987 Gulf valve was differently designed and had none of these weaknesses. Dr. Bruges also stated that because of the 1977 design defects, dirt could relatively easily enter the value, particularly when the regulator was being fitted. Dr. Liao, while disagreeing that dirt could enter so easily, agreed with the other criticisms made of the 1977 valve by Bruges.

38. According to the employees who gave evidence for HK Oil Co. the Gulf LPG cylinders sold in 1977 as well as at the present time, are supplied with a cap, a copy of which was produced as Exhibit D.3. The 2 empty LPG cylinders stored in the deckhouse were not capped. There was a dispute whether the 3 Gulf cylinders on board the trawler at the time of the explosion had been supplied with caps. However, this issue became less important, as it became common ground that the caps do not prevent gas from leaking. Their limited purpose when fitted after the LPG cylinder is used, is to prevent dirt from entering and blocking or damaging the valve.

39. I am satisfied that the reason why the 2 empty LPG cylinders stored in the deckhouse, or either of them, leaked was because of defective valves. I confirm that I am also satisfied that the valves would have leaked whether capped or uncapped. During Dr. Liao's evidence she stated that all valves leak while in absolute terms that statement may be true, the more significant leakage this action is concerned with is of the degree which would allow residue to escape in sufficient quantities to accumulate in a dangerous explosive pocket. I find that the valves were defective and permitted sufficient residue to leak to form the quantities in the Engine Room which fuelled the subsequent explosion.

when shortly after 4 p.m. on 6th April 1977 the main engine was started, the explosion occurred. I accept the evidence of Dr. Bruges and Dr. Liao that the spark which caused the accumulation of LPG to explode probably came from the commutator. In view of the experts agreement on this point, I do not need to consider further the fact that the main engine did not have a starter switch and was started by the primitive method of connecting the bared ends of two wires to energise the starter solenoids. I also find that while it is difficult to determine precisely the height of the commutator in the Engine Room, it would have been in a position no higher than 42 inches from the floor. The Engine Room's ceiling was 6 feet from the floor.

40. I am satisfied that a major cause of the explosion was ignorance on the part of Mr. Yeung, that apparently empty LPG cylinders contained a sufficient residue of LPG to be dangerous. Further that it was dangerous to store apparently empty cylinders in a confined space. If those facts had been known, the cylinders might then have been stored in an open or well ventilated space and not confined in the deckhouse, where the main lower outlet was down a hatch into the Engine Room. Mr. Pierce s^tated that before this accident in 1977, it was not widely known by consumers, that an apparently empty LPG cylinder, could still contain a dangerous residue.

41. Indeed, from Mr. Pierce's evidence this explosion was clearly the catalyst which led to discussions between the Marine Department and the LPG supply companies to reduce the risk of such explosions.One outcome of those discussions was the publication during August 1977, of two pamphlets warning users that "empty" cylinders are not in fact empty and should be handled with care. In particular, warnings are now given of the possibility that where a valve is faulty, LPG may still leak out of an apparently empty cylinder. Users are also warned not to store empty cylinders in enclosed spaces. One series of these pamphlets was published for fishing vessels, launches, lighters and junks and another series for pleasure boats.

42. I have to consider the position earlier in 1977, before the warnings in these pamphlets were issued. I am prepared to find in favour of the defendants that when HK Oil Co. delivered the 3 cylinders purchased by Mr. Yeung, each cylinder had affixed to it the sticker produced as Exhibit P.101 and the tag produced as Exhibit P.102. Exhibit P.101 was a red coloured diamond shaped sticker with silver coloured instructions or warnings written thereon The warning written in the centre of the sticker was "Gases possessing a fire risk". Around the edges of the sticker were written "Keep in a cool place" and "Plug after use". All these words were written both in English and in Chinese characters. The warning on Exhibit P.102 was "Keep window or door open when LP Gas is in use."

43. Counsel for the plaintiffs submitted that these instructions and warnings were inadequate and failed to discharge the duty of care owed in negligence to the consumer. It was submitted that neither document contained any warning that apparently empty cylinders were not empty were liable to leak; and continued to be dangerous. A accept that the warning in Exhibit P.102 is limited to the care that should be taken when the LPG cylinder is in use and is silent upon any precautions which should be taken when the cylinder is not in use Exhibit P.101 does contain the instruction to "Plug after use" which refers to the necessity of capping the valve after use. However, capping does not stop leaking but is for the mere limited purpose of preventing dirt from entering the valve. There is no warning on either document of the danger which existsin relation to apparently empty cylinders and which is now explained in the post-accident Marine Department pamphlets.

44. In addition to Exhibits P.101 and P.102, I accept that HK Oil Co. supplied to its distributors, including Hip Sang, copies of the document produced as Exhibit D58. I am prepared to find that Mr. Chan handed a copy of Exhibit D58 to either Mr. Yeung or his wife. Exhibit D58 contains useful information such as Hip Sang's telephone number and the telephone number to use in an emergency. The document also contains helpful advice on the use of LPG cylinders similar in content to Mr. Chan's evidence of the oral guidance he gave new customers. However, Exhibit D58 shares the same shortcomings as that oral guidance, for it does not warn of the dangers of apparently empty LPG cylinders or of leaking valves.

45. On the basis of the foregoing findings of fact, I am satisfied that all the defendants owed a general duty of care to the plaintiffs. The more narrow and important question is whether each of the defendants has discharged the particular duty imposed upon them. The law is well settled that a duty to take special precautions is imposed on the manufacturer and supplier of dangerous goods. I hold that LPG is within the category of dangerous goods which gives rise to that special duty.

46. Counsel for the plaintiffs referred to that part of Lord Atkin's judgment in Donoghue v. Stevenson (1932) AC 562 commencing at page 596 where he observed:

"The nature of the thing may very well call for different degrees of care and the person dealing with it may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom a duty is owed may be extended 3n the Dominion Natural Gas Co. Ltd v. Collins and Perkins (1909) AC 640, 646 the appellants had installed a gas apparatus and were supplying natural gas on the premises of a railway company. They had installed a regulator to control the pressure and their men negligently made an escape-valve discharge into the building instead of into the open air. The railway workmen the plaintiffs were injured by an explosion in the premises. The defendants were held liable. Lord Dunedin, in giving the judgment of the Judicial Committee proceeded in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity. This with respect, exactly sums up the position. The duty may exist independently of contract. Whether it exists or, not depends upon the subject matter involved; but clearly in the class of things enumerated there is a special duty to take, precautions."

47. In the same case, Lord Macmillan at page 611 stated:

"I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance of negligence where the law exacts a degree of diligence so stringent as to amount practically to a guarantee of safety."

That general principle remains unaffected by more recent developments of the law of negligence. I was also referred to The Pass of Ballater (1942) P.112 and Beckett v. Newalls Insulation Co. Ltd. (1953) 1 All ER 250 as examples of the application of that principle in cases involving gas explosions.

48. I hold in accordance with these cases that HK Oil Co. as the manufacturer of the Gulf LPG cylinders, owed that particular special duty of care in negligence to Mr. Yeung as the consumer and to other persons on board his trawler. I find that as manufacturer, HK Oil Co. knew or ought to have known that apparently empty cylinders remained dangerous and that fact was unlikely to be known to consumers. HK Oil Co. were under a duty to warn consumers of that danger. The clearly established facts are that no such warning was ever given.

49. The existence of dangerous residues in apparently empty cylinders created a greater, if hidden, hazard for consumers, because it was unwarned than the known danger inherent in full cylinders. The danger was increased, by the weakness of the 1977 Gulf valve, with its greater propensity to leak, than was the case with shell, Mobil or Caltex valves or the differently designed 1987 Gulf value. The nature of this obscured danger, which at least in early 1977 would have surprised the average consumer, no doubt led Counsel for the plaintiffs to cite as appropriate the words of Serutton LJ in Hoage & Sons v. Anglo-American Oil Co. (1922) 12 LI L Rep 183, 187:

"Personally, I do not understand the difference between a thing dangerous in itself as poison, and a thing not dangerous as a class, but by negligent construction dangerous as a particular thing. The latter, if anything, seems the more dangerous of the two; it is a wolf in sheep's clothing instead of an obvious wolf."

50. It follows from my finding that HA Oil Co. failed to give due warning of the danger of apparently empty cylinders and fitted them with valves with a design weakness increasing their likelihood to leak, that I hold that Company liable in negligence to the plaintiffs.

51. Before going on to consider the position of Hip Sang as distributor, it is convenient to deal with the position of Mr. Kwok Tak Kam. It is undisputed that he personally conveyed the LPG cylinders from Hip Sang's premises to Mr. Yeung's trawler. Leaving aside for one moment the separate issue whether at that date he carried on business as sole proprietor under the name of Kam Kee or in partnership under the firm name of Kam Shing, the defence filed by the 1st defendant was that when Mr. Kwok conveyed LPG cylinders he did so as a gratuitous carrier.

52. Mr. Kwok gave evidence and stated that he was a marine hawker who sold fishing boat requisites to fishermen. He carried on business from a barge and also used a small boat to convey goods from the barge to his customers moored fishing trawlers he denied he ever sold LPG cylinders. However, he agreed that on occasion he would gratuitously assist his customers, by delivering from Hip Sang to them full LPG cylinders as well as returning empty cylinders. For this service he made no charge. According to him he would receive the purchase price of the LPG cylinders from the fishermen and hand that same money over to Hip Sang. Mr. Chin, one of the partners of Hip Sang, stated that he knew Mr. Kwok purchased LPG cylinders both for his own use and on behalf of fishermen. He stated that he charged Mr. Kwok the same rates for the cylinders, as he charged other customers.

53. Mr. Kwok explained that he conveyed LPG cylinders to his customers for the sake of convenience, as it was often easier for him on his rounds, to pick up cylinders from Hip Sang than for his customers to make their own separate trips. Mr. Yeung when he gave evidence, also referred to the practice of obtaining LPG cylinders from Mr. Kwok. Mr. Yeung at one stage stated he purchased cylinders from Mr. Kwok but was unaware whether Mr. Kwok made any profits from these transactions. The reference by Mr. Yeung to buying LPG cylinders was not, of course, decisive. To clarify the position, the Court asked Mr. Yeung whether he understood that Mr. Kwok was selling the cylinders to him or merely collecting them from_. Hip Sang on his behalf. Mr. Yeung replied that Mr. Kwok was merely collecting them from Hip Sang on his behalf.

54. Mr. Yeung's reply supported a finding that Mr. Kwok was not a seller or supplier of LPG cylinders but merely a gratuitous carrier other evidence reinforced Mr. Yeung's statement. Mr. Kwok's family lived on the barge and witnesses only observed 2 or s cylinders at the barge at any one time. Mr. Kwok did not carry a supply of cylinders on his boat for random sale. All the evidence was that he merely conveyed pre-ordered LPG cylinders to fishermen during the course of calling on them to sell his own goods. The cylinders collected were sold by Hip Sang at normal retail rates. No doubt Mr. Kwok was prepared to convey his customers LPG cylinders not merely for their convenience but also to preserve the goodwill of his own business. This evidence falls far short of establishing that he sold LPG cylinders to those customers.

55. On the evidence I find that Mr. Kwok, whether under the name of Ram Kee or in partnership as Kam Shing, acted only as a gratuitous carrier. The liability in negligence of a carrier is referred to in Charlesworth & percy On Negligence(7th Edn) 505 at paragraph 8 55:

"A carrier, who delivers the products in the same condition, as they were in, when he had received them for carriage, is not liable to the consumer for damage, caused to them through their defects. This is because he is mere agent for the transmission of the goods, and is not in any way responsible for their inherent properties."

56. There is no suggestion on the instant facts that Mr. Kwok during the short journey he had them in his possession changed the condition of the cylinders, so it is not necessary to consider the different position that would then have arisen. The cited statement referred to carriers generally including carriers for reward. Mr. Kwok was a gratuitous carrier who did not alter the condition of the cylinders and who neither knew or ought to have known that the LPG cylinders, when apparently empty, would still be dangerous am satisfied that Mr. Kwok discharged his common law duty of care, as gratuitous carrier, by delivering the cylinders to Mr. Young in the same condition as he received them from Hip Sang. In view of these findings, I do not need to go on to determine Mr. Kwok's particular business status at the material time. For these reasons I hold that the plaintiffs claim against the 1st defendant Kam Shing fails.

57. I turn now to consider the position of Hip Sang. Hip Sang formally admitted that it carried on business as a distributor of Gulf or HK Oil Co. LPG cylinders to fishermen for use on fishing vessels in Aberdeen Harbour. It is undisputed that the 3 Gulf LPG cylinders on board Mr. Yeung's trawler had been supplied by Hip Sang. Mr. Chan of Hip Sang stated that before new customers made their first purchase they had to attend at his Company's office to open an account. At that stage he explained the proper use of LPG cylinders and the customers were given a copy of the card which was produced as Exhibit D58.

58. Mr. Chan stated that when either Mr. Yeung or his wife opened Mr. Yeung's account, he explained the proper use of LPG cylinders and handed over a copy of Exhibit D58 to serve as a reminder of the guidance he had given. However, he could no longer recollect whether he spoke to Mr. Yeung personally or to his wife. Mr. Chan stated his practice was to tell the new customer that LPG cylinders were dangerous goods; that they should be kept in a ventilated place; they should not be stored on their side; that cooking stoves should not be placed on inflammable materials; that before disconnecting the cylinders the flame should first be switched off; that empty cylinders should be capped and put in an open and ventilated space.

59. Mr. Chan stated that Hip Sang's invariable practice was to give new customers this explanation and to hand them a copy of D58 to take with them as a reminder. The detailed account described during his evidence in chief of the explanation given to new customers, did not include any warning of the danger of apparently empty cylinders or the possibility that the valves on such cylinders might leak. In cross-examination Mr. Chan agreed that as a distributor it was necessary to know of the danger of LPG and that he was aware of those dangers in 1977.

60. Counsel for Hip sang submitted that even if HK Oil Co. were negligent, it did not follow that Hip Sang was negligent for, on the facts, it was a mere distributor. On this point I was referred to 34 Halsbury's Laws of England (4th Edn) page 34 where the following statement is contained at paragraph 39:

"39. Persons answerable for negligence. The duty of care is not confined strictly to manufacturers, but extends to the operations of those who for reward assemble or repair articles it extends to retailers who have to perform some work on the goods other than mere distribution, including those checks which a retailer of the goods in question would reasonably be expected to make."

61. Hip Sang sold the LPG cylinders for reward to Mr. Yeung. LPG cylinders contain dangerous goods. Mr. Chan acknowledged that it was necessary for a distributor to know of the dangers of LPG cylinders. On the other hand, Hip Sang did not perform any work on the cylinders nor is there any direct evidence that they were required to carry out any checks. However, the sale by Hip Sang of LPG cylinders did not merely involve the exchange of the cylinders for the customer's money in payment of the retail price. Because of the dangerous nature of the goods sold, Hip Sang also orally explained the use of the LPG cylinders to new customers and handed to them as well a copy of Exhibit D58 as a reminder of the rules governing safe use.

62. In considering the extent of Hip Sang's role as distributor, I record that I have also taken into account that Exhibit D58 and its contents were prepared by HK Oil Co. and not by Hip Sang. The facts are therefore not the same as in Goodchild v. Vaclight 'Times' 22.5 b5 also noted by 'Halsbury' at paragraph 39, where an English distributor of a German vacuum cleaner held liable, had in addition also itself compiled the English language instruction booklet.

63. A very important aspect of Hip Sang's business as a distributor was that it distributed dangerous goods. This places a higher duty on Hip Sang in relation to their customers than if they were merely selling non-dangerous goods. What the cases cited earlier referred to as the peculiar or special duty, arises also against Hip Sang. Hip Sang's practical recognition of that responsibility, is indicated by their practice of both interviewing new customers in respect of the dangers of LPG and handing over a copy of Exhibit D58 to them. As the goods were dangerous, Hip Sang's duty was therefore higher than that of a mere passive distributor. Hip Sang had to store and maintain its stock in accordance with the special lawful requirements relating to dangerous goods. Further, Hip Sang was obliged to ensure that dangerous goods sold were in safe and proper condition. This would necessarily involve a degree of checking on Hip Sang's own part before sale. As to the oral explanation, I find that even if it were given to Mr. Yeung, it did not include a warning of tie danger of apparently empty cylinders or of leaking valves. I hold that Hip Sang failed to discharge the duty of care it owed to Mr. Yeung and to other persons on board his trawler.

64. I turn now to determine whether, as the defendants pleaded, the plaintiffs were contributorily negligent. The allegation of contributory negligence is pleaded in these very limited terms of paragraph 4 of the Re-Amended Defence:

"4. Further or alternatively if, which is denied, liquid petroleum gas leaked from the cylinders as averred by the plaintiff, the plaintiff as master of the motorised fishing vessel registration number M61045A negligently failed to ensure that the said cylinders were properly capped with caps provided by the 3rd defendant and thereby caused and or contributed to the said accident."

65. The difficulty HK Oil and Hip Sang faced, as the evidence unfolded, was that the purpose of the caps turned out to be not to stop gas from leaking but to prevent dirt from entering the valve. Further, both Dr. Bruges and Dr. Liao were agreed that the most likely time when dirt might enter the valve was after the cylinders were uncapped and the regulators were inserted. During that period the valves were properly and necessarily uncapped.

66. Faced with this position, Counsel for HK Oil and Hip Sang reminded me that Mr. Yeung held a Marine Engineer's Certificate and for B to 10 years had been regularly using LPG on his trawler. The Sticker Exhibit P.101 warned users to cap the cylinder after use. If that had been done the leakage causing the explosion would not have occurred, it was submitted, if the uncapped cylinders were the cause of dirt entering and the leak subsequently occurring in those circumstance Mr. Yeung would have contributed to the accident.

67. There is a dispute whether caps were provided. Assuming that caps were provided and used, it is clear that they would not, if the valves leaked, have prevented gas from escaping. If the valves leaked as a result of the prior uncapped condition of the cylinders, then that would be a ground for holding Mr. Yeung guilty of contributory negligence. However, the evidence of both the plaintiffs and the defence experts, is that dirt was more likely to enter the valves at a time when they were properly uncapped. The burden of establishing contributory negligence is on the defendants. On the evidence I am not satisfied that it is more probable than not, that Mr. Yeung was negligent in terms of the limited contributory negligence pleading. I hold that no element of contributory negligence has been proven.

68. In the result, the plaintiffs are entitled to judgment on the issue of liability, against the 2nd defendant Hip Sang and the 3rd defendant HK Oil Co. The plaintiffs claim against the 1st defendant is dismissed. Liberty to apply is reserved in relation to costs and any other consequential matters.

Representation:

Mr. K Bokhary, QC with him Mr. R Barretto instructed by the Director of Legal Aid for the plaintiffs.

Mr. Jason Pow instructed by MK Lam for the 1st defendant. Mr. Robert Whitehead instructed by Philip KH Wong for the 2nd and 3rd defendants