Chandran a/l Subbiah v Dockers Marine Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 01 December 2009
• Date: 01 December 2009
• Docket Number: Civil Appeal No 21 of 2009
• Court: Court of Appeal (Singapore)

Chandran a/l Subbiah

Plaintiff

and

Dockers Marine Pte Ltd

Defendant

[2009] SGCA 58

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 21 of 2009

Court of Appeal

Employment Law–Employers' duties–Employee being injured in course of employment while working from height–Whether employer's duty of care extended to providing safety equipment to minimise risk of employee falling from height

Employment Law–Employers' duties–Employee being injured in course of employment while working on site not belonging to employer–Whether employer's duty of care extended to inspecting work premises prior to commencement of work

Employment Law–Employers' duties–How standard of care was to be assessed–Whether employer's duty to take reasonable care for its employees applied

The appellant worked for the respondent as a stevedore. On 18 October 2005, the appellant was instructed by the respondent to move cargo containers on board a vessel, the Tasman Mariner ("the vessel"). Prior to the commencement of work no safety inspection or safety briefing was carried out by the respondent's supervisor; neither was any safety equipment supplied to the appellant even though he was required to work from heights. During the course of his engagement on board the vessel, a ladder ("the defective ladder") on which the appellant was standing suddenly detached from the hull of the vessel. This caused the appellant to fall about 10m into a hatch of the vessel. Resulting thereto, he sustained severe injuries. Consequently, the appellant started proceedings to recover damages from the respondent.

Held, allowing the appeal:

(1) The common law required employers to take reasonable care for the safety of their employees in all the circumstances of the matter: at [15].

(2) An employer could not wash his hands off all responsibility for the safety of his employees simply because the employees were sent to work at a site controlled by others. The law continued to place on an employer an obligation to take reasonable care for its employees' safety: at [19].

(3) The respondent had, in the circumstances, failed to meet two aspects of its duty to take reasonable care for the safety of the appellant. The respondent should have performed the following but did not do so: (a) carry out a risk assessment exercise, including inspecting the access to the hatch in question and the defective ladder for signs of danger to its workers, prior to the commencement of work; and (b) take reasonable measures to minimise the risk of its workers falling from heights by providing safety equipment such as safety belts and safety harnesses: at [26].

(4) The proposition that employers should undertake a preliminary risk assessment before allowing its employees to commence work was reasonable and self-evident in principle. This meant that all employers should ordinarily familiarise themselves with the work environment in which their employees would have to function and ascertain if there are any likely risks that ought to give rise to safety concerns. Ordinarily, such an assessment should include a physical inspection of the work premises and equipment to be used: at [31].

(5) An employer who required its workers to work at heights had to take all reasonable measures to minimise the risk of falling and the consequential injuries that might result from such accidents. The measures to be taken had to be reasonable in the sense that the degree to which such measures might minimise the risk of falls had to be balanced against the practicability of implementing the measures: at [58].

[Observation: For coherence and relevance, the common law in this area of employers' duties and responsibilities to their employees has to conform to the prevailing needs and contemporary values of society. Legal obligations and standards in the workplace must therefore now be determined in the light of the prevailing regulatory framework, current work safety attitudes, and advances in knowledge and improvements in technology as well as community expectations. There has undoubtedly been a marked change in the social climate towards ensuring that there are adequate safety standards in the workplace, particularly in the last decade or so, and this must be considered in evaluating an employer's duty of care in any particular situation. There is one further caveat we should add. Even if current case law from foreign common law jurisdictions may appear relevant, each such decision that is being relied on must, nevertheless, be carefully scrutinised and evaluated to ensure that it was not based on policy considerations peculiar to the times and the place concerned, social mores or regulatory circumstances that might not be applicable to Singapore: at [16].]

Araveanthan v Nippon Pigment (S) Pte Ltd [1992] 1 SLR (R) 167; [1992] 1 SLR 545 (refd)

Barber v Somerset County Council [2004] 1 WLR 1089 (refd)

Blyth v The Company of Proprietors of the Birmingham Waterworks (1856) 11 Ex 781; 156 ER 1047 (refd)

Bolton v Stone [1951] AC 850 (refd)

Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 (refd)

Christmas v General Cleaning Contractors Ld [1952] 1 KB 141 (refd)

Cole v De Trafford (No 2) [1918] 2 KB 523 (refd)

Cook v Square D Ltd [1992] ICR 262 (refd)

Crombie v McDermott Scotland Ltd [1996] SLT 1238 (refd)

Davie v New Merton Board Mills Ltd [1959] AC 604 (refd)

General Cleaning Contracts Ld v Christmas [1953] AC 180 (refd)

Gibson v Skibs A/S Marina and Orkla Grobe A/B and Smith Coggins, Ltd [1966] 2 All ER 476 (distd)

Hodgson v British Arc Welding Co, Ltd and B & N Green & Silley Weir, Ltd [1946] 1 KB 302 (not folld)

Hutchinson v The York, Newcastle, and Berwick Railway Co (1850) 5 Ex 343; 155 ER 150 (refd)

Jenner v Allen West & Co Ltd [1959] 1 WLR 554 (refd)

Leighton Contractors Pty Ltd v Fox [2009] HCA 35 (refd)

M'Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (refd)

Mace v R & H Green and Silley Weir Ltd [1959] 2 QB 14 (not folld)

Marney v Scott [1899] 1 QB 986 (refd)

McDermid v Nash Dredging & Reclaimation Co Ltd [1987] 1 AC 906 (refd)

O'Connor v Port Waratah Stevedoring Co Pty Ltd and The Broken Hill Proprietary Co Ltd (1975) 13 SASR 119 (refd)

Parno v SC Marine Pte Ltd [1999] 3 SLR (R) 377; [1999] 4 SLR 579 (refd)

Shepherd v Pearson Engineering Services (Dundee) Ltd (1980) SLT 197 (not folld)

Smith v Austin Lifts Ltd [1959] 1 WLR 100 (refd)

Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 (refd)

Thomson v Cremin [1956] 1 WLR 103 (not folld)

Tsang Hing Cheung v Chan Po Ling Stella [2002] HKCU 1356 (refd)

William Durie v Andrew Main & Sons [1958] SC 48 (not folld)

William M'Lachlan v The Steamship "Peveril" Co, Ltd (1896) 23 R 753 (refd)

Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 (refd)

Wilsons & Clyde Coal Co, Ltd v English [1938] AC 57 (refd)

Factories Act (Cap 104,1998 Rev Ed)ss 33 (7),33 (8), 33 (9),47A, Twelfth Schedulepara 2

Work Injury Compensation Act (Cap 354, 1998 Rev Ed)

Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed)ss 5 (1), 12,12 (3),12 (3) (a),20, First Schedulepara 4

Law Reform (Contributory Negligence) Act1945 (c 28) (UK)s 1 (1)

Occupiers' Liability Act1957 (c 31) (UK)s 2 (4) (b)

Perumal Athitham and P Kamala Dewi (Yeo Perumal Mohideen Law Corporation) for the appellant

Michael Eu Hai Meng (United Legal Alliance LLC) for the respondent.

Judgment reserved.

V K Rajah JA

(delivering the judgment of the court):

Introduction

1 Accidents involving falls from heights in workplaces appear to be a not uncommon occurrence in Singapore. Several cases involving such accidents have come before the courts in the last few years. It is reasonable to assume from this that many similar cases would also have been settled under the workmen's compensation regime. Propitiously, this appeal has given us an opportunity to clarify the responsibilities employers have when their employees work at heights.

2 In the present proceedings, the appellant claimed damages for personal injuries and consequential losses he suffered while in the employ of the respondent, a stevedoring company. The appellant fell from a height of about ten metres while he was attending to the loading of some cargo containers in the hold of the vessel Tasman Mariner ("the vessel"). As a result, he sustained severe head injuries and continues, as a consequence, to suffer from visual defects, cognitive impairment and headaches. Dissatisfied with the amount of compensation assessed under the Work Injury Compensation Act (Cap 354, 1998 Rev Ed) for no fault accidents, he initiated these proceedings against the respondent, his employer. Soon after being served with the appellant's claim, the respondent successfully included the owners of the vessel ("the ship-owners") as a third party to the present proceedings. However, upon being informed that the ship-owners had "settled" any claim the appellant might have against them, the respondent decided not to pursue the third-party action. Nonetheless, the respondent's position before us was that it could still seek contribution from the ship-owners if it were found liable in any way in the present proceedings. For the avoidance of doubt, we point out that our views expressed here do not in any way address the issue of relative responsibility for this accident as between the respondent and the ship-owners.

Background

Facts of the case

3 The appellant, a Malaysian, worked as a stevedore. He possessed a Singapore work permit, obtained with the support of Asia Stevedore Pte Ltd. However, it appeared that the appellant was, to all intents and purposes, a freelance stevedore usually engaged on an ad hoc basis and compensated on the basis of work actually performed. On this basis, the appellant frequently worked for the respondent. The appellant testified that a stevedoring foreman employed by the...