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Lai Tai Tai v Lam Pak Lo And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Judgment Date03 February 2000
Citation[2000] 1 HKLRD 499
Judgement NumberHCPI683/1998
Year2000
CourtHigh Court (Hong Kong)

1998 No. PI 683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

NO. 683 OF 1998

__________

BETWEEN
LAI TAI TAI,
the intended administratrix of the estate of
NG YEA MUI alias NG KWAI KUEN, deceased Plaintiff
AND
LAM PAK LO1st Defendant
CHEUNG KAM SANG2nd Defendant

__________

Coram: Deputy Judge Chu in Court

Date of trial: 21st & 24th January 2000

Date of judgment: 3 February 2000

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JUDGMENT

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1. This action arises out of an accident which occurred to Ng Yea Mui alias Ng Kwai Kuen ("the deceased") while he was on board a sampan on the waters in Sai Kung area. The plaintiff, who is the wife of the deceased, commenced these proceedings on 30 June 1998 to claim damages against the 2 defendants in negligence and in breach of statutory duty. The defendants deny liability and aver that the plaintiff had been contributorily negligent. By a Notice filed on 17 September 1998, the 2nd defendant further claims contribution from the 1st defendant.

2. The 1st defendant was legally represented during most part of the proceedings, but became unrepresented shortly before the trial came on.

3. At the commencement of the trial, both liability and quantum were disputed by the defendants. On the second day of the trial, however, the parties reached an agreement on quantum and agreed that damages for the plaintiff, assuming a 100% liability, should be assessed at $590,000. The only issue for the trial is therefore liability.

THE FACTS

4. Much of the facts in this case is not in issue. It is common ground that at about 8:50p.m. on 22 July 1995, the 1st defendant was operating his junk, which was used as a pleasure vessel ("the Junk"). The Junk ran aground on a shoal to the east of Yeung Chau in Tso Wo Hang, Sai Kung, New Territories. The 1st defendant accepted that the Junk ran aground because he was not familiar with the waters in Sai Kung area, so that he was not aware of the presence of the shoal, and also because he was distracted by lights from nearby lamps.

5. Upon receiving report, the marine police came to assistance and conveyed the passengers on board the Junk to shore by means of the police vessels. The 1st defendant, his son and a crew member remained on the Junk. The 1st defendant was told by the marine police to drop anchor and to wait for the next high tide so that the Junk could be refloated. It is accepted that the next high tide for the area would have been at 5:53a.m. on 23 July 1995.

6. Meanwhile, the deceased, who was steering an open sampan ("the Sampan"), passed by the Junk. At the 1st defendant's request, the deceased used the Sampan to try to pull the Junk out of the shoal. It met with no success as the horsepower of the Sampan was not powerful enough for the task. The deceased then went to seek help from the 2nd defendant whose inboard motor cruiser ("the Cruiser") was nearby. The deceased together with the 2nd defendant, and joined by a Mr Lau Kam Cheung ("Lau"), went on board the Sampan to where the Junk was to assess the situation. The deceased perceived, with which the 2 defendants agreed, that the Junk would capsize if the water ebbed again. It was then decided that the Cruiser would try to tow the Junk out of the shoal.

7. The deceased, the 2nd defendant and Lau then returned to where the Cruiser was to fetch a hawser for tying the Junk to the Cruiser. The 2nd defendant went on board the Cruiser and properly tied one end of the hawser, which was about 50 metres long, ("D2's hawser") to the bow of the Cruiser. The deceased and Lau remained on the Sampan.

8. D2's hawser was not long enough to be connected to the Junk. The 1st defendant then produced an orange hawser ("the orange hawser") from the Junk. The orange hawser was properly tied to D2's hawser. D2's hawser, as extended by the orange hawser, was still not long enough and a third hawser was required. The only hawser available was a white hawser, of which one end was connected to the anchor of the Junk ("the white hawser"). Accordingly, the anchor was lifted from the sea and placed on board the Junk. The deceased properly tied the free end of the white hawser to the free end of the orange hawser. It is the 1st defendant's evidence that the deceased told him to properly tie the white hawser to the Junk. The 1st defendant wrapped the white hawser round the bollard of the Junk four times, with the anchor remained connected to it.

9. In the meantime, the deceased steered the Sampan to the starboard side of the Cruiser. The 2nd defendant, in his statement to the police given shortly after the accident, stated that he had asked the deceased to steer the Sampan to that position as he was afraid that vessels might approach from that side. Although the 2nd defendant had not given evidence at the trial, this statement was admitted as an agreed document. The 2nd defendant had also pleaded in his Amended Defence that he had asked the deceased to position the Sampan to the starboard side of the Cruiser "so as to caution other ships heading towards the vicinity of the salvage operation" (paragraph 5(vi)).

10. After the Sampan was so positioned, Lau gave a signal to the 2nd Defendant by rotating a lit up torch. The 2nd defendant started the engine of the Cruiser and put it on the reverse very carefully. He stopped the engine when he saw D2's hawser, as extended by the orange and white hawsers, (collectively referred to as "the hawsers") move. At that point, the Sampan was about 20 feet from the Junk and the Cruiser was about 130 feet from the Junk.

11. Moments later, he started the engine and reversed the Cruiser again. The white hawser came free. Together with the anchor, it was pulled by and towards the Cruiser and across the Sampan at high speed. The anchor struck the deceased and Lau. The deceased was knocked overboard. The 1st defendant jumped into the water and helped the deceased onto the Sampan. The deceased lost consciousness. He suffered multiple abrasions on the right lower chest, right upper back and lacerations on the front and back of the right lower arm and behind the left ear. He died before arrival at the Prince of Wales Hospital. The cause of death was drowning.

12. Such are the undisputed facts. The facts which are in dispute relate to the circumstances surrounding the tying of the white hawser to the Junk.

13. It is the evidence of Lau, who was called as a witness for the plaintiff, that the deceased had asked people on board the Junk to properly tie the white hawser to the Junk. Later the deceased asked the people on the Junk whether it was ready. Someone from the Junk replied "ready'. The deceased then steered the Sampan away for about 20 feet so as to be at the starboard side of the Cruiser. The deceased then told him to give the torch signal to the Cruiser, which he did. By then, the hawsers had already straightened.

14. The 1st defendant denied that someone from the Junk had replied "ready". His evidence is that he had agreed with the deceased that when he had properly secured the white hawser, he would give a torch signal to the deceased and the towing operation would only commence thereafter. He said that he had intended to disconnect the anchor from the white hawser. As he was wrapping the white hawser round the bollard, his son and his other crew member were trying to untie the anchor. Before the anchor had been disconnected, however, the Cruiser had already begun to reverse.

15. The 1st defendant's son, Lam King Leung, had also given evidence. He is now 19, but 14 years old at the time of the accident. He stated that his father had told the deceased that he would give a torch signal when they were ready, meaning when the anchor was disconnected and the white hawser properly tied to the Junk. He said when he was disconnecting the anchor from the white hawser, he heard his father shout to him to get running. He ran away and later he knew that the anchor had been pulled out of the Junk.

16. I am of the view that the version of events as related by Lau is to be preferred to that of the 1st defendant and his son. In coming to this conclusion, I am conscious of the fact that Lau and the deceased were good friends. Nevertheless, Lau appears to me to be an objective witness. His evidence in court is consistent with his description of the events in his statements to the police as well as in his report to the Marine Department.

17. On the other hand, the 1st defendant never mentioned in his statements to the police the agreement with the deceased that he were to give a torch signal when he was ready. Even when he gave the report to the Marine Department, he only mentioned that the deceased told him to tie the white hawser properly to the front of the Junk, and the deceased then wielded the torch to signal to the Cruiser. To my mind, the alleged agreement with the deceased is such a crucial episode in the events preceding the accident that it is improbable that the 1st defendant would have forgotten or omitted to mention when he was interviewed by the police or marine officers. Indeed, the 1st defendant said he had mentioned this to the interviewing officers, but somehow it was not recorded in the statements and report. I am unable to accept this. This is an important part of the events. It is unlikely that an interviewing police or marine officer would omit to record it in the statements. Even if he had, there is no reason why the 1st defendant did not notice it nor ask the officer to add it to the statement. The 1st defendant accepted that the statements had been read to and/or by him and he had been told that he could add or alter the contents. The fact that...

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