Yam Fuk Ngan v. Wong Hon Shing and Others

HCA001489/1976

Coram: Zimmern, J.

Date of Judgment: 16 March 1979

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JUDGMENT

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1. In this case the Plaintiff suffered serious injuries when employed by the 2nd Defendant Yeung Ping Tong (Yeung) as a casual labourer in a container terminal the premises of the 3rd Defendant Whampoa Terminals Ltd. (Whampoa). A straddle carrier owned by Whampoa and driven by the 1st Defendant Wong Hon Shing (Wong) ran on to his left leg on the morning of 13th December 1973. The Plaintiff sues all three of them in damages for the injuries and loss he has sustained.

History and Geography

2. The name Whampoa is associated with a long established and well known ship yard in Hong Kong and not long before the accident perhaps a year or two part of the ship yard was converted into a con-tainer terminal. As its name implies a container terminal is a station for the collection and disposal of cargo packed in containers either off loaded (imports) from or about to be loaded (exports) on container ships. In respect of imports some consignees take the container intact off the terminal others unlock the containers take the actual cargo off leaving the containers in the terminal. This unloading of the cargo is known as devanning. In respect of exports again some shippers deliver containers intact to the terminal for loading aboard container ships others deliver their cargo to the terminal when they are put into containers before loading aboard. This putting of cargo into containers is called vanning and in the trade appropriately known as stuffing. Containers come in two sizes 20 feet and 40 feet in length and both 8 feet high. I do not know the width. A straddle carrier is an enormous vehicle on 6 wheels the function of which is to straddle over a container, lift it physically off the ground and take it to its destination within the terminal. The driver sits in the wheel house high up on rear off side and the engine is to his immediate left. On the evidence it is clear that the driver has no view of his near side ground level and there is a lot of dead ground immediately ahead of him. When a-straddling its speed is no more than that of a man walking quickly though if unladen it can go up to 15 m.p.h. There is a conflict in evidence on this point but I accept the evidence of the Defendants that Whampoa had two such vehicles at the time of the accident and vehicle No. 3 did the damage. Both machines were purchased second hand but there is no suggestion by the Plaintiff or indeed any evidence that either was mal-functioning. Upon purchase Whampoa installed on to each vehicle a "beeper" which emits a high pitched intermittent sound when any gear is engaged. This is automatic and cannot be turned off by the driver without disengaging the gear. It serves as a warning system. Each vehicle has a horn.

3. I turn now to the geography of the terminal. It is a large tract of land with its south and south eastern boundaries abutting onto the wharves where container ships tie up. We are only concerned with a part of this land. Entry to the terminal by land is via a main gate on the northern boundary. Immediately upon entry on the east is the Central Freight Station No. 1 (C.F.S.1). This is the main station where part of the vanning and devanning are done, the offices of Whampoa and toilet facilities are situate, and Yeung the stevedore contractor of Whampoa holds court in directing the operations of the work force employed by him as such independent contract. On the western side of this station are the gates for the ingress and egress of containers and on the south are three gates. To the west of C.F.S.1 is C.F.S.4 with which we are not concerned. To south west is C.F.S.2 to which I shall allude to again. Immediate to the south of the three gates of C.F.S.1 is one of the stacking areas of the terminal. With this we are concerned. A stacking area is an area marked out for the stacking of containers. This area is marked out for 14 rows from north to south. The number of 20 foot containers per row depends on the width marked out and the maximum stacking in height is 16 feet that is one container on top of another. The distance between each passage is just sufficient plus a little tolerance for a straddle carrier to straddle over the containers on two passages. The control tower is to the south of this stacking area and C.F.S.2 and is in radio contact with the offices in C.F.S.1, the straddle vehicles and no doubt with others.

Liability

4. On the morning of the accident the Plaintiff said he with his gang had finished their job of stuffing a container outside C.F.S.2 and their duty was then to report back to Yeung in C.F.S.1 outside Gate 2 for orders. The Plaintiff was the last to leave as he had to close and lock the container. He walked north east towards C.F.S.1 and when approaching its south western corner he saw coming out of the 1st gate two fork lifts (carriers for lifting and carrying cargo) and a lorry parked nearby so ex abundanti cautela he walked through the passage between first and second rows (counting from the north down) with the intention of going through between containers of the first row to approach the second or middle gate. Unhappily before he was half way walking across the passage a straddle carrier without any warning struck him from behind and pinned his left leg to the ground.

5. There is a sharp conflict between the evidence of the Plaintiff and those called by the Defence as to the spot where the accident took place. Mr. Kitchell the then assistant General Manager of Whampoa said he received a radio call from the Control Tower of an accident. He sent for an ambulance and went down to the stacking area and in the passage between the second and third row of containers he saw the Plaintiff in a sitting position leaning on a container. His left leg was between two tyres of a straddle carrier. His belt was unbuckled and the flies of his trousers open. Nearby about 8 feet to the west was a shoe, blood stains and a puddle of urine. Wong the driver said he received instructions to pick up the 4th top container on the third row. He entered the area from the west and when he reached the third container he stopped to raise the frame in order to be able to proceed and pick up the fourth. He suddenly heard a yell below him on his left. He immediately radioed the control tower of this. He saw nobody on his near side and he could not have so seen upon entry into the stacking area. The Plaintiff vehemently denied he was between the second and third rows and that he was urinating when caught or at all. The first conflict is not important but the second is. I find as a fact that the Plaintiff entered the passage between the second and third rows and after passing the first and perhaps the second container (20 feet long) he stopped to urinate and was caught unaware by the side front wheels of the carrier. By their defence the Defendants pleaded that the stacking area was out of bounds to the Plaintiff and that he was a trespasser therein. Rightly and properly counsel for the Defendants dropped this at the hearing. It is clear from the evidence that some workmen and there were a few hundred of them were using the passages between rows of containers and narrow passages between containers in a row to go to and from C.F.S.1. With commendable frankness Mr. Kitchell admitted that he knew his own work force in the Control Tower were using these passages as a short cut and other workmen were doing the same. No warning of any sort had been given to the work force that the stacking area was taboo to all save those on business. There was some nebulous evidence that certain individuals had been warned not to enter this area. I find as a fact that the work force was so using the stacking area and all the Defendants knew of this or ought to have known of it. The driver had been employed in his work for about 1½ years. There was also conflict in the evidence as to the urinal facilities provided in C.F.S.1. The Plaintiff said whatever there was was locked and not available to him a mere casual worker and the next place was some 10 minutes walk away outside of Whampoa's premises. Any understanding of human nature must commend that in the terminal I have described the stacking area unless controlled by those in authority must be a natural place to obey calls of nature by folks of the casual labour class.

6. Much was said in evidence about noise. First the evidence is clear that the terminal was a noisy place. There was controversy as to the amount of noise the engine and beeper of a straddle carrier emitted. The Plaintiff says not that loud and the Defendants say otherwise i.e. very loud.

7. Yeung as the Plaintiff's employer has at common law a duty to see that reasonable care is taken to provide safe place of work and access to it and a safe system of work.

8. Whampoa as the occupier of the terminal owed to Plaintiff a duty to take such care as in all the circumstances of the case was reasonable to see that he would be reasonably safe in using the premises for the purposes for which he was permitted by Whampoa to be there (Section 3(2) of Occupiers Liability Ordinance Cap. 314).

9. Wong as driver of the straddle carrier owed a duty to take reasonable care not to harm his neighbours in the terminal.

10. Taking reasonable care is a question of fact⁽¹⁾. The onus is on the Plaintiff to prove negligence. Mr. Barretto Counsel for the Plaintiff submitted that the toleration of pedestrian traffic through the stacking area was sufficient to show that a dangerous situation existed. These straddle carriers entered the area at no fixed times for the taking away or deposit of containers. There was evidence that at times though only on special occasions vanning and devanning were done there. I agree with Mr. Barretto and find as a fact that a dangerous situation existed and the area was a trap for pedestrians from which harm could be foreseeable.

11. A Johnny Wong planning controller of Whampoa called by the Defendants said of the terminal "Everywhere is dangerous. Common sense dictates the rules". I am sure this is not the view of Whampoa. The truth of the matter I think is that the area had then only recently been converted from a shipyard into a container yard and had not had time to settle down to take all reasonable safety precautions. Yeung and Whampoa knew that the former's work force had to report to him at the second gate for instructions and some of them went via the stacking area. In cases of this nature the rule stated by Lord Dunedin⁽²⁾ has been approved by The House of Lords. Lord Dunedin said

"Where the negligence of the employer consists of what I may call a fault of omission I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either - to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or - to show that it was a thing what was so obviously wanted that it would be folly in anyone to neglect to provide it."

In the present case there is no evidence as to how other container terminals regulated straddle carriers and stacking areas so nothing can be said on the first limb of the rule. As to the second limb, I hold the view it applies with full force to the facts of this case for it cannot be gainsaid that both Yeung and Whampoa were neglectful in not prohibiting the pedestrian traffic in the stacking area save to those on business therein or at least warning of the inherent danger in the clearest possible language. Accordingly I find both of them liable.

12. As for Wong the driver, no blame could be attributable to him for driving a vehicle on which he could not see immediately in front of him for some distance or anything on his near side at ground level. Nor am I making any criticism of the design of the straddle carrier. I accept the evidence that it was mechanically sound and fit for the purpose for which it was intended. The fact remained that he himself said the stacking area was known to be dangerous and he had seen people inside when it was not filled. When he received instructions that morning to take away the container he ought to have as a reasonable person would have, given warning of his approach into the area. He only relied on his beeper, he had a horn and did not use it. Accordingly I also find him liable.

13. The Defendants by their defence alleged that the accident was caused wholly or partly by the negligence of the Plaintiff. Two items of the particulars are, on the facts as I have found them, in point. First item (vii) the Plaintiff relieved himself between two rows of containers (viii) the Plaintiff failed to keep any or any proper look out. The Plaintiff knew that straddle carriers went into area. If he had only walked at a quick pace the chances were that the straddle carrier would not have caught up with him but as I have found he did not, he stopped to urinate and did not when in so doing keep a proper look out. He obviously did not hear the approach of the carrier otherwise he could quite easily have taken evasive action to avoid being struck by this slow moving vehicle. He did not hear and I do not find this surprising as he was on ground level below between two rows of containers some 8 feet and some 16 feet high. By his failure to keep a proper look out when relieving himself he contributed to his own damage. I estimate and find this to be 25%.

Damages

14. The Plaintiff was admitted to Queen Elizabeth Hospital Orthopaedic Unit on 13th December, 1973 when exploratory surgery was performed. The medical report shows he had a compound fracture involving the left femur at its mid-part. An extensive wound ran from the groin to the foot. I need not mention another minor wound. The blood vessels of the thigh were severed. Gangrene developed which required amputation through the left thigh and this was done on 17th December, 1973. The thigh stump was closed on 17th January 1974. The amputation resulted in a left thigh stump 3" below the hip. The wound healed slowly. A prosthesis was fitted and he was taught to walk with it. He was discharged from hospital on 5th July, 1974.

15. At the time of the accident he was 28 or 29 years old healthy and strong and was employed by Yeung to work in Whampoa in the main vanning and devanning containers. He worked on a daily basis and his wages were $31.50 per day and would work on an average 26 days per month. He sometimes worked overtime and this averaged $40 per month. His monthly salary therefore was about $820. Yeung did not give evidence and I was not told the going rate at Whampoa now for the same work but there is evidence that casual labourers at construction sites are now paid $65 per day. As I said the Plaintiff was strong and healthy and was a hundred and ninety pounder and six footer to boot. Not one, if unimpaired, who would be short of work in the labour market.

16. The special damages set out in the claim as amended are agreed and they come to $44,928 which includes a deduction of $6,699 received by the Plaintiff under Workmen's Compensation Ordinance. I now turn to general damages. Dr. R.G.M. Wedderburn examined the Plaintiff in January, 1977 and his report in part reads:-

This man has no longer a functional leg, with the disability that entails. I have set out his two operations and length of stay in hospital. I award pain and suffering and loss of amenities at $75,000. This leaves loss of prospective earnings. The Plaintiff came from China and had only been an unskilled labourer. He can now only do sedentary jobs and I accept his evidence that since his discharge from hospital he has found it most difficult to find one. He applied to Whampoa for work and to Labour Department for a newspaper vendor's licence both without success. He worked for a short time with a security company counting money at $2.50 per hour and found his earnings were not worth the expense of public transport. His main problem is transportation. He can only board or alight from public transport with help and with the greatest difficulty. Dr. Wedderburn told the Court he ought not to do so as it would be dangerous. This leaves him with only prospects of sedentary employment nearby his own home or cottage industry at home. He is of course still employable but his loss in substantial and a very real one. Bearing also in mind that wages in the labour market have been rising and by reason of his impairment he would not be getting a slice which he would otherwise have got. I value this loss at $500 per month i.e. $6,000 per annum and using a multiplier of 12 award him $72,000 which added to the figure of $75,000 makes $147,000 and deducting 25% contributory negligence leaves $110,250. There is a further deduction of $27,518.40 received as compensation for permanent disability under the Workmen's Compensation Ordinance leaving a sum of $82,731.60 for general damages. Special damages were agreed at $44,928 and deducting 25% contributory negligence leaves $33,696. There will be judgment with costs to be taxed in accordance with legal aid regulations in the sum of $116,427.60 with interests at 4% per annum on the sum of $33,696 from date of writ to to-day's date.

Representation:

R. Barretto (Johnson, Stokes & Master) for Plaintiff.

A. Corrigan (Deacons) for Defendants.

(1) Qualcash (Wolverhampton) Ltd. v. Haynes [1959] AC 743.

(2) Morton v. William Dixon Ltd. 1909 SC 807 @ 809