Fibres & Fabrics Industries Ltd v. Hong Kong Acid Works Ltd

HCA003486/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 3486 OF 1978

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Coram: Mr. Commissioner Mayo.

Date of Judgment: 22nd January 1980.

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JUDGMENT

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1. The Plaintiff company conducts a textile business which includes certain dyeing and bleaching operations.

2. The Defendant company is a manufacturer and supplier of industrial chemicals and supplied quantities of a chemical called potassium permanganate (hereinafter referred to as PPM) to the Plaintiff company.

3. A delivery of PPM was effected on the 5th January 1977 when a rather unfortunate accident occurred. The Defendant's delivery man Mr. NG Wing Kwan dropped a 50 Kilogram drum of PPM onto a 200 Kilo drum of carbowax and shortly after this there was a fire which caused a considerable amount of damage at the Plaintiff Company's premises. Fortunately no one was injured.

4. The Plaintiff claims that the damage which it has suffered was a consequence of the Defendant's negligence and breaches of "statutory duty.

5. The Plaintiff's main witness was Mr. LING Wan-fai who was employed as a stores clerk at the time in question. He was present when Mr. NG delivered the drum of PPM and witnessed the fire. He said that he requested Mr. NG to place the said drum next to a large drum of carbowax. Contrary to these instructions Mr. NG placed the drum of PPM on top of the drum of carbowax. It fell through the top of the larger drum splashing out liquid onto Mr. NG who feared that the liquid may be corrosive. Mr. LING assured him that this was not so. He then rushed to the toilet to wash away the liquid from his body and his clothes. Mr. LING then reported the incident to his superior officer. When he returned to the store room he saw a number of fellow employees seeming to leave the premises and it was evident that there was a fire in the store room. He saw smoke and flames inside the store room. He also gave evidence that the store room was always maintained in good order and because dyes were kept there the floor was always dry. Also when he had taken Mr. NG to the store room he had turned on the electric light.

6. Professor Payne who is the Professor of Chemistry at Hong Kong University gave evidence which was virtually uncontested that PPM is a dangerous chemical which reacts violently with a number of substances. He said that if 50 kilos of PPM came into contact with 200 kilos of carbowax heat would be generated leading within a few minutes to a conflagration. It is almost inescapable to conclude that the fire at the Plaintiff's premises on the 5th January 1977 was caused as a result of the chemical reaction of PPM and carbowax. I am satisfied that this was so as were the Fire officers who attended at scene.

7. Mr. Warren CHAN who represented the Plaintiff argued that the Defendant, being a supplier of Dangerous Goods owed a duty of care to the Plaintiff. They should have provided the Plaintiff with adequate warnings of the possible dangers inherent in PPM and should have exercised far greater care in ensuring that staff making deliveries of the substance handled the drums with sufficient care.

8. In support of these propositions Mr. CHAN cited the case of Vacwell Engineering Co. Ltd. v. B.H.D. Chemicals Ltd. [1971] 1 Q.B. 89.⁽¹⁾ It was held in that case that the supplier of a dangerous chemical owed a duty of care to give warnings of hazards relating to the substance to their customers. In the present proceedings the Plaintiff was in an ever stronger position because it is their case that the damage complained of was not caused by their employees but by the carelessness of one of the Defendant's employees.

9. Mr. Chan also referred to the Defendant's breaches of statutory duties and in particular to the failure to comply with section 10 of the Dangerous Goods Ordinance Cap. 295 and General Regulation 153. Section 10 (a) provides for the labelling of Dangerous Goods where they are being delivered anywhere and requires that a label should be written in English and Chinese. It is common ground that the labels on the drums in question were in English and Japanese. Having regard to the continuing nature of the transactions between the parties, I regard this non compliance as being of a rather technical nature. More important though is the question of the non compliance with General Regulation 153 (4). This regulation requires that any substance coming with the scope of the regulations should be enclosed in protective or outer packing of a type designated in the schedule to the Regulations. It is clear from all of the evidence that this regulation was not complied with and that if it had been it is probable that this accident would not have occurred.

10. The Defendant denied liability and alleged that the accident occurred as a result of the unsatisfactory condition of the Plaintiff's premises. Mr. NG, the delivery man I have already referred to, gave evidence to this effect. He said that when he went to the store room the light was not turned on and there was liquid on the floor. As a result of this he slipped and dropped the heavy drum he was carrying onto the Large drum of carbowax. I regret that I did not find Mr. NG, to be a convincing witness. There were a number of inconsistencies in his evidence and where it is at variance with Mr. LING's I have no hesitation in accepting the latter's version of what transpired. I do not believe that there was insufficient illumination in the store room or that there was liquid on the floor. I am satisfied that Mr. LING gave him instructions to place the drum of PPM on the floor next to the large drum of carbowax and that Mr. NG disobeyed these instructions and placed the PPM forcibly on the drum of carbowax resulting in the PPM and carbowax coming into contact with each other. As I have said previously I am satisfied that this was the cause of this accident.

11. I also accept Mr. CHAN's submission that the Defendant did owe a duty of care to the Plaintiff and that they failed to discharge that duty. I hold that the Defendant has been guilty of negligence and that Judgment must be entered for the Plaintiff.

12. At the commencement of the proceedings I was informed by Counsel for both parties that they had been able to agree the quantum of damages which had been assessed by the Loss Adjuster who represented the parties insurers. The amount agreed was $124,276.35. Judgment is entered for the Plaintiff in this term. Costs shall be to the Plaintiff.

Representation:

Warren C.H. CHAN (Deacons) for Plaintiff

Jimmy C.T. KWONG (K.Y. Woo & Co.) for Defendant

(1) Vacwell Engineering Co. Ltd. v. B.H.D. Chemicals Ltd.[1971]1 Q.B.89.