Arnold William v Tanoto Shipyard Pte Ltd

• Jurisdiction: Singapore
• Judge: Tan May Tee
• Judgment Date: 05 August 2015
• Neutral Citation: [2015] SGDC 221
• Court: District Court (Singapore)
• Docket Number: DC 1190 of 2011 H, District Court Appeal No. 9 of 2015, District Court Appeal No. 10 of 2015
• Year: 2015
• Published date: 20 August 2015
• Hearing Date: 13 August 2013,03 July 2013,28 May 2013,27 May 2013,16 October 2014,04 October 2013,03 September 2013,27 April 2015,29 October 2013,04 July 2013,02 July 2013
• Plaintiff Counsel: Mr Jose Charles (Jose Charles & Co)
• Defendant Counsel: Mr K Anparasan & Tan Wei Ming (KhattarWong LLP)
• Subject Matter: Tort - Negligence,Breach of duty,Contributory negligence,Volenti non fit injuria
• Citation: [2015] SGDC 221

District Judge Tan May Tee: INTRODUCTION

The Plaintiff, a freelance commercial diver, was injured in an accident at the Defendants’ shipyard on or about 15 April 2010. The Defendants had engaged his services to assist in the recovery of floaters which had become stuck underneath a barge in the process of launching the barge out to sea. During the operation, the Plaintiff was hit by one of the floaters and suffered an injury to his right hand. In this action, he claimed damages arising from the negligence on the part of the Defendants.

The issue of liability was tried before me. A total of seven witnesses testified, three for the Plaintiff and four for the Defendants, over three tranches of hearing. After the second tranche, the Plaintiff had applied to call rebuttal evidence from an expert which I had allowed. This was in relation to the issue of how the floater could have lurched out from under the barge to hit the Plaintiff. The Defendants being dissatisfied had appealed my decision in DCA 45 of 2013¹. The appeal was dismissed and the trial resumed in October 2014 with experts called by both parties testifying concurrently.

At the conclusion of the trial, after due consideration of the evidence and the submissions of counsel, I found both parties to be equally at fault for the accident. I granted interlocutory judgment in the Plaintiff’s favour at 50% of damages to be assessed by the registrar. Both parties have since appealed to the High Court against my finding, and I set out herein the grounds of my decision.

UNDISPUTED FACTS

On the material day², the Defendants were launching a barge, the Yew Choon Marine 12, out to sea after repairs had been carried out. They had used 8 floaters placed under the barge for the unslipping operation. This was to facilitate the movement of the barge along the slipway and into the sea.

The floaters in question are cylindrical airbags³ made of heavy duty rubber measuring 12 metres in length and 1.5 metres in diameter. They weigh about 530 kg before being inflated. At one end of the floater is a pad-eye while at the other end is a valve which regulates the volume of air being pumped in or released from the floater. The pad-eye is a small metal ring⁴ at one end of the floater through which a rope can be threaded through. According to the manufacturer’s specifications, the floaters have a working pressure of 0.13 Mpa⁵.

When the Plaintiff arrived at the shipyard, he was informed that there were 2 floaters still stuck under the barge. The Plaintiff dived underwater and saw that one of the floaters had a rope tied around it but the end of the rope had dropped into the water. The other floater did not have any rope attached to it. The Plaintiff retrieved the rope that was tied to the first floater and handed it to the Defendants’ employee, one Shafique Amin Uddin (DW-2). The floater was then pulled away from under the barge by the use of a forklift.

For the second floater, the Plaintiff had proceeded to release the air by turning the valve 900. He then swam to the surface to receive a rope from DW-2 which was to be tied to the floater to enable it to be pulled away from under the barge after it had sufficiently deflated. While the Plaintiff was waiting in the water by the wall of the slipway, the floater lurched out suddenly from under the barge towards the Plaintiff. The floater hit the Plaintiff on his right hand, crushing it against the wall. The Plaintiff suffered a serious injury to his right hand which required emergency surgery.

PLAINTIFF’S CASE

In his Statement of Claim, the Plaintiff pleaded that the accident was caused solely or contributed by the negligence of the Defendants’ employees in the operation, management, supervision and/or control of the barge and/or the floater. He had also pleaded that the Defendants owed a duty of care as occupiers to take reasonable care to ensure his safety on the shipyard premises and not to expose him to any risk of injury which they knew or ought to have known of.

The Plaintiff’s case was essentially premised on the omissions on the part of the Defendants to ensure the Plaintiff’s safety in undertaking the work that he was contracted to do. A lengthy list of particulars⁶ of negligence and breaches of duty on the part of the Defendants had been enumerated in the Statement of Claim and elaborated in the Further and Better Particulars⁷ served pursuant to the Defendants’ request.

Among the more pertinent allegations, it was alleged that the Defendants had failed to take any adequate precautions to ensure that the Plaintiff was not exposed to any risk of injury which they knew or ought to have known of. The Defendants had also conducted their operations in a manner that exposed the Plaintiff to risk of injury. They had failed to make an assessment of the risks that the Plaintiff would be exposed to in undertaking his work; and caused or permitted the Plaintiff to perform his work when they knew or ought to have known that it was unsafe and dangerous to do so.

In his Closing Submissions, the Plaintiff contended that the Defendants were liable because: they had control of the premises where the accident had taken place; they had control over the work that the Plaintiff was engaged to do; the floaters that the Plaintiff was asked to retrieve belonged to the Defendants and had been under their care and management; the removal of the 2 floaters from under the barge was part of the unslipping process of the barge; while the Plaintiff’s work in or under water was within his control and expertise, the Defendants had control over all other work and activity; the Plaintiff had no knowledge that the floater would lurch out from under the barge when the air was released, neither was he aware of what had actually caused the floater to lurch out from under the barge; the Defendants had taken no measures to warn, instruct and/or to inform the Plaintiff that the floater would move or lurch out from under the barge when air was released; the Defendants had not provided any means by which the floater could be sufficiently secured to prevent it from lurching out from under the barge when the air was released; the rope that the Plaintiff was to tie to the floater was not meant to secure it but to enable the Defendants’ employees to pull the floater out from the under the barge after it had sufficiently deflated; and the tying of the rope to the floater before the air was released would not have prevented the accident.

The Plaintiff relied on the following facts to support his case, namely: The floaters had been inflated to a pressure of 7 kg/cm2 by the Defendants’ employees. Each of the 8 floaters paced under the barge by the Defendants had a rope tied around the middle. The Defendants had retrieved 3 of the floaters that had come loose from under the barge by using a forklift to haul them out of the water by means of the rope tied around them. 5 floaters did not come loose from under the barge when it was unslipped into the water. The Defendants used a forklift to yank them out from under the barge by pulling on the rope attached to the middle of each floater. They succeeded with 3 floaters. Of the 2 floaters that had remained stuck, the rope around one of them had broken off with one end in the water, whilst the rope on the other floater had become completely detached. The retrieval of the last 2 floaters was to be carried out by releasing the air from the floaters, attaching a rope to it so that they could be lifted out of the water with the forklift. The Plaintiff had been expressly told by the Defendants’ manager in charge (DW-1) that he was to assist them by releasing the air from the 2 floaters and tying a rope to the floaters. For the first floater with the rope still attached round its middle, the Plaintiff had dived into the water, and using a rope handed to him by DW-2, he tied it to the rope still attached to the floater. It was then retrieved by the Defendants’ men from under the barge using a forklift to pull it away after the Plaintiff had released the air from the floater. The Plaintiff had similarly released the air from the second floater and had swum to the surface to obtain the rope from the Defendants’ employee which was to be tied to the floater. The floater lurched out from under the barge when the Plaintiff was waiting for the rope to be handed to him.

The Plaintiff further pleaded reliance on res ipsa loquitur.

DEFENDANTS’ CASE

In their Amended Defence, the Defendants had pleaded that: the Plaintiff was an independent contractor who had used his own diving equipment at all material times; the Plaintiff was an experienced diver who was competent to carry out the work and was in complete control of the assignment he was tasked to carry out; the Plaintiff’s injury was caused by the movement of the floater due to the Plaintiff’s act of releasing the air from the floater; the Plaintiff had voluntarily undertaken the risks associated with the release of air from the floater without taking any/or all necessary precautionary measures or exercising sufficient prudence; and further and/or alternatively, the Plaintiff was contributorily negligent for the loss and damage he had sustained as a result of the accident.

On the basis that the Plaintiff had been appointed to carry out work on their premises, the Defendants in their Closing Submissions were prepared to and admitted that they owed the Plaintiff a duty of care in relation to his general safety on their premises. They, however, denied any negligence or breach of duty on their part. A main plank of the Defendants’ case was that the Plaintiff, as an independent contractor, was the one who had devised the system of work for carrying out the assignment of recovering the floaters. The Defendants were merely to assist him.

The Defendants premised their case on the fact that the...