Amus bin Pangkong v Jurong Shipyard Limited and Another

• Judge: Lai Siu Chiu J
• Judgment Date: 24 April 2000
• Neutral Citation: [2000] SGHC 67
• Citation: [2000] SGHC 67
• Defendant Counsel: Basil Ong Kah Liang (Madhavan Louis & Partners)
• Published date: 19 September 2003
• Plaintiff Counsel: Cheong Yuen Hee (instructed), Subbiah Pillai and Tiwary Anuradha (Pillai & Pillai)
• Date: 24 April 2000
• Docket Number: District Court Appeal No 26 of 1999
• Court: High Court (Singapore)
• Subject Matter: Whether shipyard owners and worker's employers liable as occupiers,Breach of statutory duty,Whether employer in breach of duty,Whether respondents breached duty,s 33(3) Factories Act (Cap 104, 1998 Rev Ed),Whether burden of proof of what is reasonably practicable is on person injured or person responsible for safety,Duty to provide safety equipment,Whether duty continuous,Whether breach the proximate cause of worker's injuries,Shipyard owners subcontracting out work in interior of vessel to worker's employers,Duty owed by employer to employee,Tort,Negligence,Occupier’s liability,Whether danger faced unusual to invitee,Worker falling while working,Duty to provide and implement safe system of work,Whether shipyard owners occupiers of interior of vessel

: This was an appeal against the decision of the District Court given on 28 October 1999. The district judge had dismissed the appellant`s claim for damages for personal injuries allegedly caused by the tortious acts of the first and second respondents.

The background

The appellant, Amus bin Pangkong, was employed by Jurong Clavon Pte Ltd (the second respondents) as a general worker since 1994. The first respondents, Jurong Shipyard Limited (JSL), and the second respondents carried on the business of ship repairing.

On 12 February 1997, the appellant was instructed by the second respondents to carry out blastering work in the centre port tank of the vessel Stolt Eagle (the vessel). The work involved the cleaning of the tank of the vessel using a blastering gun. The vessel was undergoing repairs at JSL`s shipyard at the material time. The appellant carried out the blastering work from a platform about 9.5 m from the bottom of the tank. There were handrails positioned about 1 m from the platform. There were no footholds or toeholds on the platform itself. In addition, the tank was pitch dark except for a limited amount of light emanating from the lamps of workers who were working in the tank.

In the course of blastering, the appellant accidentally fell to the bottom of the tank and suffered severe injuries. When he was discovered by his co-workers, they noticed that he was not wearing a safety belt. Investigations carried out by the Ministry of Manpower (MOM) after the accident revealed that there were no toe-boards on the platform on which the appellant was standing. This was a contravention of reg 93(1)(b) of the Factories (Shipbuilding and Ship-repairing) 1994 Regulations (the Regulations). The appellant has not worked since the accident.

Consequently, the appellant commenced an action against JSL and the second respondents. The appellant claimed damages for personal injuries suffered as a result of the negligence of JSL and/or the second respondents, a breach of their duties as occupiers of the vessel and a breach of their statutory duties under the Factories Act Cap 104 (the Act). He further pleaded the doctrine of res ipsa loquitur which point his counsel wisely abandoned in his petition of appeal and at the hearing together with his claim based on ss 28(1)(a) and (b), 33(1) and 62 of the Act.

Dr Chang Wei Chun (PW1) gave evidence on behalf of the appellant as to his condition after the accident. Tan Geok Leng (PW2), an engineer and factory inspector from the Department of Industry Safety at the MOM, was called upon to give evidence on the practice of his ministry as regards the enforcement of the Regulations. The accident report that was prepared by the MOM was annexed to his affidavit of evidence-in-chief. It was noted that the person who prepared the accident report, one Lee Kah Bee, was not in Singapore at the time of the trial. Accordingly, he was not called as a witness for the appellant during the trial. However, Mohamed Salleh bin Ahmad (Mohamed), Herman bin Ibrahim (Herman) and Idris bin Salleh (Idris) were called to testify on the appellant`s behalf. These three persons had been previously employed as blasterers for the second respondents. Another witness was Zainuddin Jamil (Zainuddin), a co-worker of the appellant who was working in the tank with the appellant when the accident occurred. Karthigesan a/l Eswara Chandran (DW3), the safety officer of the second respondents, was also called as their witness.

Chia Boon Sun (Chia) was a loss adjustor and surveyor who was engaged by the insurers of JSL and the second respondents to investigate the circumstances surrounding the appellant`s accident. Chia (DW1) had obtained a statement from the appellant about three months after the accident.

The decision below

The district judge dismissed all the appellant`s claims against both respondents. She did not think that the appellant was truthful on the issue as to whether he had received safety training from the second respondents. The appellant testified that he was never given any safety training whilst he was employed by the second respondents. In contrast Mohamed (PW4) and Herman (PW5) stated that they had attended safety courses. Idris (PW6) did not undergo any safety training but stated that he already knew how to use the relevant safety equipment due to his previous employment in Malaysia. The district judge felt that the evidence as a whole indicated that employees of the second respondents were given training in the use of safety equipment unless they had already acquired the necessary skill and knowledge, as in the case of Idris. It was against this background that she found it difficult to believe the appellant`s evidence that he had mastered the use of sophisticated equipment, like the blastering gun, by himself.

The court below was also dissatisfied with the evidence of Mohamed and Idris on the issue of whether safety belts were provided to blasterers. In the course of cross-examination, Mohamed stated that he was taught how to use equipment such as the gas mask, helmet, safety shoes, gloves and ear plugs but was not taught how to operate the blastering gun. Similarly, Idris stated in cross-examination that he and his fellow blasterers were provided with all the relevant safety equipment except the safety belts. The district judge found it hard to accept the evidence of either witness that a safety course conducted by the then Ministry of Labour would cover all types of safety equipment save for safety belts. Accordingly, the district judge concluded that Mohamed and Idris were coached by the appellant as to the evidence they should give and were ready to pin liability on the second respondents as regards the non-provision of safety equipment.

The court below took the view that the bias of the appellant`s witnesses was demonstrated again when Mohamed and Idris were cross-examined on the second respondents` practice vis-.-vis safety rules and regulations. Both witnesses gave the impression that the second respondents blatantly flouted numerous safety rules and regulations. Accordingly, the district judge found that Mohamed, Herman and Idris were not independent witnesses.

In contrast, the district judge found Chia (DW1) to be an independent and reliable witness. Chia had recorded a statement (see exh `CBS 1` in his affidavit) from the appellant. In his statement to Chia, the appellant admitted that he was wearing a safety belt at the time of the accident but he simply did not anchor the safety belt because he was moving about on the working platform. As the appellant was not fluent in English, the statement was interpreted to him in Malay by one Omar Muthalif (Omar), who was the appellant`s supervisor at the time. According to Chia, the appellant signed the statement after the contents had been interpreted to him. However, the appellant denied that the signature on the statement was his. The district judge chose to believe Chia as she felt there was no reason for Chia to conspire with Omar against the appellant. Accordingly, the contents of the appellant`s statement were accepted as evidence that the appellant was wearing a safety belt on at the time of the accident and he was himself negligent in failing to anchor it to the platform. After considering the evidence of Chia, the appellant`s admission in the statement to Chia and the dubious nature of the evidence of Mohamed, Herman and Idris, the district judge consequently found as a fact that safety belts were furnished to the appellant and the other blasterers on 12 February 1997.

Having assessed the evidence, the court below then went on to address the legal issues. The issues were firstly, whether JSL and the second respondents were liable to the appellant in negligence; secondly whether JSL and the second respondents were liable to the appellant as occupiers of the vessel; and thirdly, whether JSL and the second respondents were in breach of their statutory duties under the Regulations, and were therefore liable to the appellant for damages suffered as a consequence of the breaches.

With respect to the first issue, the appellant alleged that the second respondents had breached their duty of care to him in two respects. He alleged that the second respondents were negligent firstly, in failing to provide him with a safety belt and secondly, in failing to ensure that the blastering work that was executed by the appellant and his co-workers was supervised. As the district judge had concluded that the appellant was in fact provided with a safety belt by the second respondents on the day of the accident, she accordingly found that there was no breach of a duty of care on the part of the second respondents in this respect.

As regards the appellant`s allegation that the second respondents had breached their duty of care in failing to supervise the blastering work, the district judge rejected the appellant`s contention that the second respondents were obliged to ensure the physical presence of a supervisor inside the tank of the vessel together with the blasterers. Whilst the second respondents clearly had a duty to provide a safe system and place of work, she felt that it would be almost impossible for anyone to ensure that the workers continue to use their safety belts given the darkness within the tank. Furthermore, the workers were required to move along the platform in the course of working. It would be impossible for a supervisor to ensure that all of them would re-anchor their safety belts whenever they moved to a new location along the platform. However, the district judge felt that the second respondents were obliged to ensure that the workers were specifically reminded to use safety belts at the commencement of their work. As they had failed to do this, the second respondents were in breach of their duty in this respect.

However, despite the breach of duty on the part of the second respondents, they were not liable in...