Lim Yee Ming v Ubin Lagoon Resort Pte Ltd and Others (Adventure Training Systems Pty Ltd, Third Party)

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 23 June 2003
• Neutral Citation: [2003] SGHC 134
• Court: High Court (Singapore)
• Published date: 02 October 2003
• Year: 2003
• Plaintiff Counsel: Quek Mong Hua (Lee & Lee),Matthew Saw (Lee & Lee),Daphne Lim (Lee & Lee)
• Defendant Counsel: Peter Madhavan (Madhavan Partnership),K Jayabalan (Madhavan Partnership),Brian Tan (Madhavan Partnership),Raymond Lam Ping Fong (Raymond Lam & Lim Partnership),Conrad Campos (Conrad Campos Partnership),Linda Ho (Conrad Campos Partnership)
• Subject Matter: Tort,Negligence,Personal injury,Defective equipment,Scope of Liability in Negligence,Implied Terms of Contract.
• Citation: [2003] SGHC 134

1 Two suits filed in the years 2000 and 2001 will be covered by this judgment. The first suit No. 880/2000/A was filed on 20 October 2002 by Adventure Training Systems (Asia-Pacific) Pte Ltd (“the Contractors”) who claim against Signature Lifestyle Pte Ltd (“the Managers”) for the balance of the contract price of $250,361.00 payable under an agreement in writing entered into between them and dated 28 July 1999 for the design, supply and installation of the structures of the Adventure Training Facility at the Ubin Adventure Centre which was operated as a resort by Ubin Lagoon Resort Pte Ltd (“the Operators”). The construction contract of the resort in Pulau Ubin was signed by the Managers, though it was at all material times operated by the Operators. After the filing of the first suit, a lady Ms Lim Yee Ming, Ivy (“Ivy”), who participated in the outdoor adventure program in the resort, was seriously injured on 15 December 2000 while she was being lowered by an employee of the Operator in an outdoor adventure structure known as ‘the Pyramid’. Ivy filed a separate action in Suit No. 1368 of 2001. Ivy claims damages for negligence against the Operators, the Contractors and Adventure Training Systems Pty Ltd (“the Suppliers”). The suppliers are a company incorporated in Australia and they had supplied the Rescue Kit comprising , inter alia, the SRTE stop descender and the prussic loop to the Contractors.

2 Underlying the two actions is the central allegation of the Managers and the Operators that these two pieces of equipment, which were used by the employee in question of the Operators to lower Ivy in the Pyramid, were defective by reason of which Ivy was dropped from a height of some 8 to 10 metres, falling heavily to the ground. The other central allegation is that the Contractors’ subcontractors, the Suppliers, had failed to ensure that the prussic loop was properly in place to act as the fall-back secondary speed control mechanism and that the Suppliers had failed to train the instructors of the Operators properly in the use of the prussic loop.

3 Ivy suffered multiple rib fractures, a fractured dislocation of the T8 vertebra and the burst fracture of the T12 vertebra resulting in paralysis from the waist down and the loss of bowels and bladder control.

4 Consequently, the Managers counterclaim against the Contractors for an order that the Contractors and the Suppliers indemnify them and save them harmless from all claims for damages of Ivy by reason of their breaches of their contractual breaches of contract and/or tortious breaches of duty of care owed to them and to Ivy in connection with the fall. These counterclaims are in addition to the usual defences and claims for set-offs arising out of their breaches of the contract for the supply of equipment and training of the employees to be skillful instructors of customers of the resort who take part in the challenging and somewhat hazardous outdoor activities in the resort.

5 Given the fact that the injuries were sustained by Ivy after the commencement of the first suit, it was not surprising that the issues in the suit became far more complicated. They expanded from contractual issues to issues in the law of negligence. After preliminary investigations following Ivy’s most unfortunate injuries, they came to the view that the stop descender might be defective and could have failed to perform the function it was designed and held out to perform. Later, they also came to the view that the prussic loop was not properly rigged up. Still later, after further investigations, they also came to the view that the training of the instructors in the employ of the Managers by the Contractors or their sub-contractors, could have been negligent because the training in the use of the prussic loop, the other equipment in the rescue kit, did not in terms of its rigging or set-up and in term of handling by the staff of the Operators, comply with the demands of safety.

6 It was therefore inevitable that after the commencement of the trial of the first suit, which began on 9 April, 2001, the defendants obtained leave to join the Suppliers as a third party. In view of the fact that the Suppliers were incorporated in Australia, the service of the Third Party Notice had to be served out of jurisdiction. The entire process, which was procedurally in effect much like a new action, unavoidably took time despite rigorous case management by the Registrar of the Supreme Court. The third tranche of the trial of the first suit only resumed on 11 Sep 2002 by which time this court was once again constrained to re-read the trial record and many affidavits in chief yet again. Due to the fact that the defendants had to investigate the causes of the accident, they needed more time to procure the necessary evidence. In the result, it took 11 days of trial to explore the issues arising out of the first suit. In that suit, much of the evidence about the equipment and training were led. Judgment had to be held over pending the disposal of the second suit in which Ivy’s claims on liability and quantum of damages could be dealt with.

7 As noted earlier, the second suit was filed by Ivy against the Operators, the Contractors and the Suppliers for damages for negligence. To save time traversing over what could not sensibly be contested, parties were encouraged to come to an agreement on the non-controversial facts. They sensibly filed a statement of Agreed Facts. They also agreed that the evidence adduced during the trial of the first suit are relevant and are to be admitted for the purposes of deciding the second suit. Further, all the defendants in the second suit agreed that Ivy was not at all at fault in the incident which caused her the serious injuries. Each of the defendants was either negligent or contributorily negligent. The trial of the second suit began on 13 January 2003 and it went on for 4 days, after which written submissions were all filed by 25 February 2003. I now deliver judgment on the issues raised in the two suits, except those relating to the claims for work done and materials supplied under the agreement of 28 July 1999 entered into between the Contractors and the Managers and the Managers’ contractual counterclaims in connection with those claims. Those matters will be dealt with in a separate judgment under suit No. 880/2000A.

Agreed Facts

8 Amongst the facilities offered by the Operators at the resort was the Ubin Adventure Centre where the Operators had recently begun conducting adventure and recreational activities for their customers.

9 Ivy was at the material times an employee of Trans-Link Express Pte Ltd. They were a paying customer of the Operator at the resort on Pulau Ubin and had engaged their services to conduct the adventure and recreational activities for employees such as Ivy.

10 I was told and it was accepted by parties concerned without further enquiry that the Operators were covered by a Public Liabilities Insurance Policy issued by QBE Insurance (International) Ltd (“QBE”) who appointed the firm of solicitors Madhavan Partnership to act for the Operators in the second suit. The Managers as well as a sister company of the Operators were at all material times named as the insured under the said policy.

11 On 15 December 2000, Ivy and other employees of Trans-Link Express Pte Ltd were taking part in the ‘Team Pyramid Challenge’ at the Ubin Adventure Centre, pursuant to the agreement with the Operators. The final challenge, which the participants of the ‘Team Pyramid Challenge’ were supposed to participate in, was an activity called the ‘Flying Fox’, which involved by belaying a descent from the top of the 24m-high tower.

12 Ivy was in the same group as Kwok Kam Wing Barry (“Barry”), Jack Joshua Tan Kiang Heng (“Jack”), Fredrick Ngnasegkar (“Frederick”) and a lady from an overseas office called Debbie. An instructor of the Ubin Adventure Centre, Ben Choo Chee Keong (“Ben”) was assigned to be in charge of the group.

13 When Ivy’s group was going up the tower, it started to rain heavily. Ben told the group that they could not carry on and that he had to lower them to the ground using the lowering equipment, which, as stated earlier included a stop descender and the prussic loop.

14 Frederick was the first person in the group to be lowered by Ben using the lowering equipment. The descent was uneventful and, in my judgment, Ben successfully executed it.

15 While Ivy was being lowered by Ben, she suddenly dropped from a height of approximately 10 metres without warning or restraint, falling heavily to the ground. As a result of the fall, Ivy suffered severe injuries including being paralysed from the waist down. She also lost bladder and bowel control. She was hospitalized from 15 December 2000 to 15 March 2001. All parties agreed that the incident would not have occurred under ordinary circumstances and in the absence of negligence. No negligence is alleged against Ivy by any of the defendants in both suits.

16 The issue on liability is whether negligence could be attributed to any of the defendants solely or contributed to by any other of the defendants in both suits.

The Background

17 The building of the Adventure Training facility, as noted earlier, was carried out under a written agreement on 28 July 1999 and entered into between the Managers and the Contractors. The Contractors commenced work in August 1999. They informed the managers that the training facilities were practically completed on 11 April 2000. Prior to the practical completion date, the various structures and facilities were progressively handed over to the Managers. The Contractors could not hand over the whole site because as of 11 April 2000 the Managers’ other contractors and agents had not completed the ground works for the parachute jump.

18 Under the agreement the Contractors provided the Managers 6 pieces of the Pyramid Rescue Kit. The Contractors had in turn...