Kim Soon Lee Logistics (S) Pte Ltd and others v UBTS Pte Ltd

• Jurisdiction: Singapore
• Judge: Lee Li Choon
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] SGDC 299
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 652 of 2013 consolidated with District Court Suit No. 3899 of 2015
• Year: 2018
• Published date: 11 June 2019
• Hearing Date: 21 May 2018,01 November 2017,24 May 2018,30 October 2018,23 May 2018,27 August 2018,09 January 2018,02 November 2017
• Plaintiff Counsel: Mr Khor Wee Siong [M/s Khor Law LLC] - Counsel
• Defendant Counsel: Mr Yeo Siew Keng Willie [M/s Yeo Marini & Partners] - Counsel
• Subject Matter: Negligence,Damages - Evidence
• Citation: [2018] SGDC 299

District Judge Lee Li Choon: Background The parties

Kim Soon Lee Logistics (S) Pte Ltd (“KSL Logistics”) is a logistics and transportation company that was engaged to transport a 40-foot container (the “Container”), from the Container owner’s premises to the docks for shipping on 18 May 2012. The Container and its specialized equipment contents were owned by Mitcham Marine Leasing Pte Ltd (“Mitcham”).

KSL Logistics then engaged Kim Soon Lee Pte Ltd (“KSLPL”) to provide the crane and lifting team. For this purpose, KSLPL then hired a crane (the “Crane”) from UBTS Pte Ltd (“the Defendant”). The “agreement” between KSLPL and UBTS for the hire of the Crane together with the Crane operator was done via a telephone conversation on 17 May 2012, one day before the lifting operation, in which, pursuant to an order placed by KSLPL, the Defendant offered to provide a 100-tonne crane (the “Crane’) with an operator at 80-tonne crane rates, and which KSLPL accepted. KSL Logistics also engaged KSL Heavy Transport Ltd (“KSL Heavy Transport”) to provide a prime mover and trailer to transport the Container.

On 18 May 2012, the Defendant supplied the Crane and an operator to lift the Container onto KSL Heavy Transport’s trailer, attached to a prime mover and KSLPL provided the lifting team which comprised a certified lifting supervisor, certified riggers and a certified signal man to supervise the lifting operation. During the lifting operation on 18 May 2012, which involved the Crane lifting the Container anti-clockwise over a 2-storey building, the Crane toppled while it was lowering the Container onto the trailer, causing damage to the trailer, the prime mover, the Crane and the Container including its contents (the “Accident”). Fortunately, no one was injured from the Accident.

The Two Suits DC652/2013 and DC3899/2015

Mitcham, the Container’s owner then sued KSLPL, KSL Logistics and UBTS in DC652/2013 for the damage to the Container and its contents. There were also counterclaims and third party claims between the various parties in DC652/2013. Mitcham’s claims were settled by KSLPL and KSL Logistics for $130,000. DC652/2013 then continued as claims by KSLPL and KSL Logistics for contribution or indemnity against the Defendant for the settlement sum of $130,000 paid as compensation by KSLPL and KSL Logistics to Mitcham. In DC652/2013, the Defendant had also counterclaimed against KSLPL and KSL Logistics for damage to the Defendant’s Crane.

As for DC3899/2015, it was a suit commenced by KSL Heavy Transport, the owner of the trailer and prime mover, to claim for damage to the trailer and prime mover against the Defendant.

Both suits were consolidated into DC/DC 3899/2015 by way of an Order of Court dated 1 September 2016.

In this judgment, KSLPL, KSL Logistics and KSL Heavy Transport shall collectively be referred to as “the Plaintiffs”.

Thus, in the consolidated suits before me, the Plaintiffs’ claim against the Defendant is for indemnity by the Defendant of the settlement sum paid to Mitcham as well as the cost of repairs and loss of use of their trailer and prime mover. And the Defendant’s counterclaim against KSLPL and KSL Logistics is for the damage sustained by the Crane in the Accident as well as the loss of use thereof which the Defendant has quantified as amounting to $249,251.0.

Plaintiff’s Case

The Plaintiffs’ case against the Defendant is essentially as follows: That the Defendant has breached its duty of care owed to the Plaintiffs in supplying a crane that was mechanically defective in that the Automatic Moment Limiter system (“AML system”), which is the Crane’s safety mechanism which would prevent overloading and/or toppling of the Crane by giving the appropriate warning signals when the Crane exceeds 90% of its safe working load (“SWL”) and stop the continued operation of the Crane, did not work to prevent the lifting of the Container. That the Defendant is vicariously liable for the negligent operation of the Crane by the Crane Operator, Neo Kee Hisung (“Neo”), whose alleged negligence is particularised as follows: Neo was negligent in that he informed the Plaintiffs’ lifting supervisor, Lai Wei Tat (“Lai”) that the Container’s weight was 16.5 tonnes and that the Crane’s safe working load (“SWL”) was 27 tonnes when the correct weight was 18.2 tonnes and the correct SWL was less than 17 tonnes due to the working radius at the start being at least 13m (i.e., Neo ought to have realized that the load could not have been less than SWL based on the working radius at the start of the lift) Neo was negligent and ought to have known that the SWL of 27 tonnes that he reported to Lai was incorrect Neo had negligently bypassed the Crane’s AML system or incorrectly reported the weight for the container and SWL to the lifting supervisor, Lai Neo was negligent in that he lowered the Container onto the trailer by lowering the Crane’s boom instead of hook

In summary, the Plaintiffs’ case is that the provision of the Crane which had a defective AML system and Neo’s negligent operation of the Crane were the proximate causes of the collapse of the Crane and ensuing losses and therefore, the Defendant is liable to the Plaintiffs in damages.

Defendants’ Case

In respect of DC652/2013, the Defendant’s Defence is that it is not a party to the said settlement and that therefore, KSLPL and KSL Logistics are not entitled to an indemnity or contribution from the Defendant.

The Defendant’s Defence is also that there is no evidence that the Crane was not in good working condition or not mechanically sound.

The Defendant further avers that KSLPL and KSL Logistics had ordered the wrong crane for the lifting operations.

The Defendant further says that the Defendant supplied the Crane and operator, Neo on specific hiring terms and conditions, including namely, an express term that KSLPL shall plan and carry out the lifting operations and be responsible for the proper execution of the lifting operations and an implied term that KSLPL as hirer shall have effective control and management of the Crane when it was deployed under the direct supervision of KSLPL.

The Defendant says that KSLPL has caused and/or contributed to the Plaintiffs’ own loss and damage by reason of KSLPL’s own negligence in failing to establish and implement a lifting plan which is in accordance with the generally accepted principles of safe and sound practice and in particular, that Lai as the lifting supervisor had breached various provisions under the Workplace Safety and Health (Operation of Cranes) Regulations 2011 (“WSH”).

Through the Defendant’s expert witness, Koay Hean Lye, Kelvin (“Mr Koay”), the Defendant further says that the Accident was caused by the Plaintiffs’ riggers who had pulled the taglines while the Container was being lowered onto the trailer which then caused the Container to tilt and which tilting then caused the unsecured cargo in the Container to slide; and the sliding cargo resulted in an impact force which added to the downward load causing the Crane to overload and topple over.

As for the Plaintiffs’ claim that the Defendant is vicariously liable for Neo’s negligence, the Defendant says that, it is not liable for Neo’s action as Neo was working under the instructions of the lifting supervisor, Lai and was in the circumstances, a “pro hac vice employee of the Plaintiffs” who are the de facto employer and the Defendant is therefore not vicariously liable to the Plaintiffs for Neo’s acts.

The Defendant’s counterclaim against the Plaintiffs concerns the Defendant’s claim for cost of repairs and loss of use of the Crane arising from the Accident. The basis for the Defendant’s counterclaim against the Plaintiffs is that the Plaintiffs’ lifting supervisor had breached various provisions under the WSH and they are therefore liable to the Defendant for the damage sustained from the Accident.

The Agreed Facts¹

A recording of the lifting operation was submitted as evidence. Both parties were able to come to an agreement on a list of agreed facts as follows: If the load reached 90% of the SWL, the AML system of the Crane (if properly functioning) would sound the warning and there would be a warning light after which the operation would be stopped when it reached 100% of the SWL. Both experts agree that the AML system will stop the Crane from operating if it reaches 100% of its SWL. The Crane will likely topple if the SWL is breached over its safety margin threshold of 125%. It is an agreed fact that the Crane ordered was of the wrong capacity. Both experts agree that the AML system (if properly functioning) can detect sudden surges. The video recording shows that upon lifting, the Container tilted for a while, then it levelled off with a slight inclination. It appears that there was no rocking during the lift. The back outriggers were not fully extended whilst the front outriggers were. The outriggers and counterweight have an effect on the SWL. Both experts have used the Performance D Chart in POS 9 and agree that the length of the outriggers will affect the SWL.

My Decision

Whether it is the Plaintiffs’ claim or the Defendant’s counterclaim, the whole crux of the case rests on what is the proximate cause of the Accident which led to the damages and losses suffered by both parties. I will proceed to look at each party’s case concerning what caused the Accident. In summary, the following causes were cited by the parties as the cause of the Accident:

According to the Plaintiffs: The AML system was faulty and as a result of this, the warning alarm did not sound and neither did the Crane automatically shut down when these should have happened to stop the lifting operation from being carried out. Neo was negligent in that he reported the incorrect weight of the Container or ought to have realised that the weight had exceeded the SWL and alerted...