Chandran a/l Subbiah v Dockers Marine Pte Ltd (Owners of the Ship or Vessel "Tasman Mariner", Third Party)

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 06 May 2009
• Neutral Citation: [2009] SGHC 109
• Docket Number: Suit No 250 of 2008
• Date: 06 May 2009
• Year: 2009
• Published date: 13 May 2009
• Plaintiff Counsel: Perumal Athitham (YPMP Law Corporation)
• Citation: [2009] SGHC 109
• Defendant Counsel: Michael Eu (United Legal Alliance LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether there was control,Who was an occupier,Duty of care,Negligence,Whether hatch fell to be considered as "factory",Whether stevedore company had duty to inspect vessel before requiring its employees to work on board,Sections 6(2)(f), 6(2)(r), 6(4), 33, 47A, 74(1), 74(3), 74(4) and 74(5) Factories Act (Cap 104, 1998 Rev Ed),Applicability and scope of Factories Act,Occupier’s liability,Definition,Tort,Breach of statutory duty,Factories Act (Cap 104, 1998 Rev Ed),Employee injured on vessel owned by third party

6 May 2009

Judith Prakash J:

Introduction

1 By this action, the plaintiff claimed damages for personal injuries and consequential loss which he suffered as a result of an accident whilst in the employment of the defendant. The plaintiff fell from a height of about 10 metres onto the top of a cargo container in the hold of the vessel Tasman Mariner (“the vessel”) and suffered head and hand injuries as a result. After the plaintiff commenced his action, the defendant sought to bring a third party claim against the owners of the vessel. Unfortunately, the defendant was not able to serve the third party and the action proceeded between the plaintiff and the defendant only.

Background Facts

2 The plaintiff was a freelance stevedore engaged by the defendant to carry out stevedoring tasks on board the vessel when it was docked at the PSA Pasir Panjang Wharves (“the wharf”) on 18 October 2005. The defendant was carrying on stevedoring business contracting services and was contracted by the owners or agents of the vessel to carry out cargo operations on the vessel whilst it was docked at the wharf.

3 According to Rajendran S/O Pavadai (“Mr Rajendran”) who was a supervisor employed by the defendant, the usual arrangement in the stevedoring industry was that stevedores would only be engaged on an ad hoc basis and would be paid by shift or work carried out. The stevedores would be engaged through their freelance stevedoring foreman and there would be no contact between the freelance stevedore and the defendant. This evidence did not affect the plaintiff’s liability, however, because for the purposes of this claim, the defendant had conceded that it would be considered the employer of the plaintiff. Therefore, it was not necessary for me to consider the issue of whether the plaintiff had been employed by the defendant or was merely engaged as an independent contractor. I think such an argument would have been difficult for the defendant to maintain as it appeared from the facts of this case that at all times the plaintiff in carrying out his work was under the supervision of Mr Rajendran.

4 According to the plaintiff’s evidence as set out in his affidavit of evidence-in-chief, on 18 October 2005, he and three other workers were deployed to carry out stevedoring tasks on board the vessel. Their task was to see to the proper arrangement of some cargo containers which were being stored inside Cargo Hold (Hatch) No. 5 (“Hatch 5”) of the vessel. After lunch, at about 1.40pm, the plaintiff was descending into Hatch 5, using a ladder fixed to the wall of the hatch when a section of the ladder dislodged causing the plaintiff to fall a distance of about 10 metres into the hold.

5 During cross-examination, however, the plaintiff said that he could not remember whether his task that day was to load or unload the container. Similarly, he claimed that he could not remember whether he fell when descending into the hatch or when coming out of the hatch. He explained that after he fell, he became unconscious. When he regained consciousness, he was told that he fell when he was climbing out of the hatch. The plaintiff claimed that he could not remember how the accident occurred.

6 This inconsistency in the plaintiff’s version of events is not critical. Whether the plaintiff fell when he was using the ladder to climb out of Hatch 5 or when he was using it to descend into Hatch 5 is not relevant to the liability of the defendant.

7 The plaintiff claimed that the defendant:

(a) had breached its statutory duty under the Factories Act (Cap. 104, 1998 Rev. Ed.);

(b) had breached its common law duty of care as an employer and by its negligence caused the accident; and

(c) was liable to the plaintiff for breach of its duty of care as an occupier of the vessel at the material time.

8 I dismissed the claim and I now provide my reasons for doing so. I will discuss the common law duty of care first as on the facts that seemed to be the claim with the greatest chance of success.

Common law duty of Care

9 The common law duty of care of employers with respect to their employees is clear. In Parno v SC Marine Pte Ltd [1999] 4 SLR 579 (“Parno”), the Court of Appeal held that the duty of an employer was threefold — to provide: a competent staff of men, adequate material, and a proper system of work and effective supervision.

10 The plaintiff argued that the defendant had breached its duty to provide a safe place of work and a safe system of work. In order to discharge the duty to provide a safe place of work, the defendant had a duty to conduct a proper inspection of the premises. However, no inspection had been carried out to ascertain the stability and soundness of the ladder. He also argued that the defendant had breached its duty to provide a safe system of work by failing to provide adequate equipment for him to enter Hatch 5.

11 In my judgment, the present case could not fall under the safe system of work category. A worker must always have entry/access to the worksite. The means of entry to the premises cannot constitute the system of work. The defendant was not the owner or operator of the vessel. It was working on the vessel and had to use the means of access provided by the owners of the vessel in order to carry out its work. In this case, the vessel had been constructed in such manner that the usual way for stevedores and other persons to gain access to the holds of the vessel was by utilising the ladder which had been constructed and attached to the wall of each hold. It was not wrong on the part of the defendant to require its workers, including the plaintiff, to enter the holds by using the attached ladders.

12 The plaintiff argued that the defendant should have provided some other means of ingress. I did not agree. It was not wrong or unsafe for the defendant to insist that the plaintiff use the method provided by the vessel unless there was some industry practice that the defendant had failed to follow. For example, if there had been a practice of having safety belts to lower workers into a hold and the defendant failed to provide such safety belts, he could be in breach of the duty to provide a proper system of work. However, this was not the case here. No evidence of such an industry practice was adduced. The danger was the defect in the ladder and that it had not been properly maintained. If any liability was to be imposed on the defendant by reason of the defect in the ladder, such liability would arise as a breach of the employer’s duty to provide a safe place of work rather than as a breach of its duty to provide a safe system of work.

Third party premises

13 Indisputably, an employer has a duty to provide a safe place of work to its employees. The issue in this case was, however, whether this duty extended to ensuring that the premises of a third party were safe in the case where the premises was a vessel and the employer and its workers were only invitees with no control over the same.

14 In Thomson v Cremin [1956] 1 W.L.R. 103 (“Cremin”), a labourer employed by a firm of Glasgow stevedores to discharge bulk grain in a ship's hold was injured when he was struck by the fall of a "shore" fixed by shipwrights in Australia to hold a shifting-board. The House of Lords held that the firm of stevedores was not negligent. It was not proved to be part of the regular practice of such firms to inspect the shores and unless they observed a defect in a particular shore they were not obliged to take special precautions. Lord Wright observed that:

To hold a master stevedore in the absence of special circumstances of suspicion subject to a general duty towards his men to inspect the structure of the vessel, whether permanent or temporary, whether shifting-boards, stanchions or the like, would, I think, be contrary to practice and inconsistent with the exigencies of the case. He comes on board the vessel, the shipowner's premises, to carry out the loading or discharging and, unless there are special stipulations in the contract, is prima facie entitled to assume that the shipowner has discharged his duty of care in regard to the safety of the premises. He is on board the ship for a special and limited purpose and has in the ordinary course no right to interfere with the structure, temporary or permanent, of the vessel. No doubt if there are apparent indications which he observes, or ought to observe, that the structure is defective, he owes a duty to take reasonable measures for the protection of his men. But there was nothing of the sort in the present case. I agree generally with what was said on this question by the Lord Justice-Clerk in M'Lachlan v. Peveril S.S. Co. Ltd., though if there was something manifestly wrong and dangerous, I think that the stevedore should refuse to go on with the work until the defect was remedied. I cannot, however, see what purpose would be served by a slight inspection of the structure by the master stevedore where there was no special ground of suspicion, while to require it would place an unwarranted and unbusinesslike burden on the stevedores.

15 Cremin was approved by the two Scottish cases of William Durie v Andrew Main & Sons [1958] SC 48 (“Durie”), a decision of the Second Division of Scotland, and Shephard v Pearson Engineering Services (Dundee) Ltd [1980] SLT 197. In Durie, a dock labourer brought an action against his employers, a firm of stevedores, for damages in respect of injuries which he had received through the fall of a section of the handrail of a ship on which he was working. The section in question had been removed and propped against the fixed handrail without being lashed to it. It was held that when a stevedore goes on board a ship to discharge a cargo, he does not owe any general duty to his employees to inspect the ship and its equipment to see that they are in a safe condition. On the other hand, should some obvious danger come to the notice of the...