Karuppan Bhoomidas v Port of Singapore Authority

• Jurisdiction: Singapore
• Judge: Sir Garfield Barwick
• Judgment Date: 15 November 1977
• Neutral Citation: [1977] SGPC 1
• Docket Number: Privy Council Appeal No 27 of 1976
• Date: 15 November 1977
• Published date: 19 September 2003
• Year: 1977
• Plaintiff Counsel: Andrew Rankin QC and Howard Cashin (Lee Brassuer & Oakley)
• Citation: [1977] SGPC 1
• Defendant Counsel: Robert Gatehouse QC and John GC Phillips (Coward Chance)
• Court: Privy Council
• Subject Matter: Whether Port Authority nevertheless vicariously liable for negligence of members of stevedoring gang,By-law of Port Authority providing for stevedoring gang to be under superintendence of officers of ship,Stevedoring gang under regular employ of Port Authority rendering loading services to ship,Tort,Vicarious liability

Cur Adv Vult

The appellant is the administrator of the estate of Veeranan deceased. On 22 January 1968 the deceased met with an accident when he was a member of a gang engaged in loading a cargo of planks from the wharfside at the Port of Singapore into the holds of an adjacent ship. Each member of this stevedoring gang was in the regular employment of the respondent which engaged them, paid them, prescribed the jobs which they should undertake and alone had the power of dismissing them. The shipowners paid the respondent for the stevedoring services which it rendered in accordance with the provisions of ss 45 to 49 of the Straits Settlements Ports Ordinance of 1912.

The only members of the gang concerned in the accident suffered by the deceased were the deceased himself, a winchman and a signalman. It is unnecessary to give anything except a brief description of this accident. The deceased`s job was to secure a load of planks with a chain and attach each end of the chain to the cable hook of one of the ship`s winches. The winchman`s job was to hoist the load and then lower it into one of the ship`s holds. He should not, however, commence this operation until he received the signal from the signalman to do so because the winchman could see neither the deceased nor the load and had no means of knowing that it was safe to operate the winch until he received the signal. The signalman`s job was to give the signal to hoist after he had satisfied himself that it was safe to do so. In fact, the winchman lifted the load together with the deceased, whose thumb had been caught in the chain securing the load, to a height of 40 feet from which the deceased fell to the ground and suffered grave injuries.

At the trial, it was agreed that the accident had been caused by the negligence of the winchman and/ or the signalman and contributed to by the negligence of the deceased: it was also agreed that if, in law, the respondent was vicariously liable for the negligence of the signalman and winchman, the blame should be apportioned as to 75% to the respondent and 25% to the deceased. Damages were agreed at a total of $80,000; so that if the appellant had succeeded on the law he would by consent have recovered judgment for $60,000.

The relevant points of law were:

(1) Did by-law 26 of the respondent`s By-Laws, on its true construction, exempt the respondent from any liability to the appellant?

(2) If the respondent was right on this first point, was by-law 26 ultra vires s 75 of the Straits Settlements Ports Ordinance of 1912 (which empowered the respondent to make By-Laws) or unreasonable and therefore of no effect?

These two points of law had both been decided by the Court of Appeal in the respondent`s favour in Alishakkar v Port of Singapore Authority Singapore. (Civil Appeal No 25 of 1972, Suit No 652 of 1970) - a case which is indistinguishable from the present in so far as the effect of by-law 26 is concerned.

The only difference between Alishakkar and the present case concerns the facts. In the former case it was held that no negligence had been proved against anyone but that even if negligence had been established against any member of the respondent`s gang, the respondent would have been protected by by-law 26, whereas in the present case, as already indicated, it was admitted that the members of the respondent`s gang had been negligent and that the injuries to the deceased were attributable 75% to that negligence and 25% to the negligence of the deceased.

The decision in Alishakkar was treated as binding on the learned trial judge and also on the Court of Appeal. The respondent accordingly succeeded in the present case at first instance and on appeal. Leave to appeal to this Board was granted to the appellant by the Court of Appeal on 2 August 1976.

It may perhaps be useful in examining the judgment under appeal, to consider what the legal position would have been at common law, had By-Law 26 never existed. Clearly, in such circumstances, the respondent would not have had, nor has it been suggested that the respondent could have had, any defence to the claim against it. It has long been established that the onus of proof

rests on the general or permanent employer - in this case the appellant board - to shift the prima facie responsibility for the negligence of servants engaged and paid by such employer so that this burden in a particular case may come to rest on the hirer who for the time being has the advantage of the service rendered.

Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) [1947] AC 1 per Viscount Simon at p 10.

Their Lordships` attention has not been drawn to any case since Donovan v Laing [1893]...