Parno v SC Marine Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 15 September 1999
• Neutral Citation: [1999] SGCA 69
• Date: 15 September 1999
• Subject Matter: Whether breach of duty by employer to provide safe working system,Choice of law,Civil Procedure,Apportioning responsibility for injuries,Factories Act (Cap 104),Costs,Injury of employee at work overseas,Conflict of Laws,Whether double-actionability rule and its exceptions applicable,Negligence,Contributory negligence,Whether Singapore law to apply,Whether Factories Act (Cap 104) applicable,Failure to raise foreign law in pleadings,When can appellate court interfere with trial judge discretion on apportionment of contributory negligence,Employer's duty of care,Tort,Whether to award full costs to party succeeding substantially
• Docket Number: Civil Appeal No 11 of 1999
• Published date: 19 September 2003
• Defendant Counsel: Simon Yuen (Tan & Lim)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Jeanny Ng (Jeanny Ng)

(delivering the grounds of judgment of the court): This was an appeal from the decision of Lim Teong Qwee JC wherein he apportioned responsibility for personal injuries suffered by the appellant in the proportion of 75:25 in favour of the respondent. It was agreed between the parties at the trial that only the question of liability needed to be determined at that stage, with damages to be assessed separately. At the end of the hearing, we allowed the appeal by varying the apportionment of liability in the proportion of one-third to the appellant and two-thirds to the respondent. We now give our reasons.

The background

This appeal arose out of an accident which occurred on board a dumb barge known as the Sumpile 8 owned by the respondent. At the time of the accident, the barge, a Singapore-registered vessel, was anchored off the port of Rangoon in Myanmar where it was engaged in pile-driving operations for the purpose of constructing a jetty.

The appellant, an Indonesian national, was employed by the respondent as a rigger under a contract of employment dated 13 September 1997 and was assigned to work on board the Sumpile 8.

Before proceeding to describe the circumstances of the accident, it is necessary to set out briefly the operating mechanism of the Sumpile 8 as well as the usual processes involved in pile-driving operations at sea.

The Sumpile 8

The principal dimensions of the Sumpile 8 were 64.14m (L) x 26m (B) x 4.5m (D). A pile frame was mounted at one end of the barge while the accommodation, which housed the control room and other facilities, was located at the other end. The pile frame was a steel tower structure with hoists and leaders to guide the hammer. The hammer was a Mitsubishi MH-72B diesel hammer, which was essentially a diesel engine with an upper and lower cylinder containing a piston or ram. The hammer measured about 5.9m and was secured to two parallel leaders by four clamps. At the lower end of the upper cylinder of the hammer, there was an arrangement of lifting lugs which consisted of a pair of lugs with `eyes` through which a pin or bolt (`pin No 5`) was inserted and held in place by a small hairpin-shaped object (`pin No 16`) that was inserted through an opening at the end of pin No 5. There was a similar arrangement of lifting lugs at the diametrically opposite side of the hammer.

The hammer was started by what is known as a starter which was clamped to the leaders in such a way that it could be lowered to a position alongside the upper cylinder of the hammer. An operator in the control room would operate the hoists to either raise or lower the starter. To start the hammer, it was necessary to bring the starter alongside the upper cylinder of the hammer where the starter would engage a latch. The starter would then be hoisted up, bringing with it the piston or ram within the hammer. This action allowed the fuel mixture in the upper cylinder to be pumped into the lower cylinder. At the designed height, the latch would be automatically released, causing the piston to fall. The resulting compression of the fuel mixture in the lower cylinder would produce the combustion necessary to cause an internal explosion which would create the downward thrust essential for driving the pile down. At the same time, the explosion would also create a reverse reaction which moves the piston back vertically upwards whereupon diesel and air would flow into the compression chamber to repeat the entire operation. The hammer could be stopped by manually releasing the compression.

To drive a pile of the length that the respondent was then engaged in driving, the hammer had to be raised by securing the hoisting cables to the lifting lugs and hoisting it up. Guy cables would be shackled to the pile which would then be positioned under the hammer. The guy cables would be operated by winches on deck so as to hold the pile in position. In order to start the piling, the starter would hoist the hammer vertically upwards. Thereafter, the starter would remain idle in that raised position throughout the piling operation. The hammer would then be lowered onto the helmet covering the top of the pile. When the pile had been driven by the hammer to about three-quarters in depth, the hammer would be stopped for the guy cables to be removed manually in order that the pile could be further driven into the seabed. Pursuant to standing instructions, the starter would be brought down immediately upon each stoppage of the hammer by the activation of a button in the control room. The reason for this practice was apparently to save time as well as to increase the efficiency of the operations. It was said by the respondent`s witness at the trial that it was essential to lower the starter immediately as any change in the water current would cause the pile to lose its alignment quickly. In order to prevent this, the practice of lowering the starter contemporaneously with the stoppage of the hammer was adopted so that piling could recommence immediately after the guy cables were removed. At this point, the starter (now already in its lowered position) would hoist the hammer upwards in order to restart the piling again. In a 12-hour working shift on board the Sumpile 8, about four to six piles could be driven in while the operation to drive each pile to about three-quarters in depth normally took about two to three hours.

The accident

On the day of the accident, the appellant was assigned to monitor the status and condition of the hammer from the piling tower deck. The piling tower consisted of decks, or platforms, positioned at regular intervals along its height for the workmen to stand on when monitoring piling operations. At the commencement of piling, the appellant would stand on the platform at which position his face would be about two metres from the top of the hammer, and on the same level as the starter. As each pile was driven deeper into the seabed, the hammer would follow it downwards making it necessary for the appellant to periodically descend to a lower platform in order to continue monitoring the operations.

The accident occurred at about 5pm on 2 February 1998. By this time, about four or five piles had already been driven in during the course of the day. The complement on that day consisted of the master or captain, one Mr Ishak bin Samat (`Ishak`), Mr Sazali and another man, both of whom were control room operators, Mr Ahmad (co-ordinator, radio officer and mechanic) (`Ahmad`), another mechanic, and about six other riggers aside from the appellant. It was not disputed that at the material time, piling operations had stopped temporarily. However, the appellant and the respondent each gave differing accounts of why piling had stopped. At the end of the trial, the trial judge believed the respondent`s version. There was no appeal from this finding.

The trial judge found that at the time of the accident, piling had stopped solely because the pile had been driven three-quarters of the way down into the seabed and not for any other reason. As mentioned before, it was standard practice for piling operations to cease at this stage so that the guy cables on the pile could be removed.

It was not disputed that at the material time, pin No 16 on the hammer had become loose. The appellant must have seen that this was the case and sought to rectify the situation by attempting to temporarily replace the loose pin with a small wire normally used for welding. It was agreed that if pin No 16 were to fall off, then there was a risk that pin No 5 would fall off as well, in which event it would not have been possible to restart the hammer. Although no one witnessed the actual accident, it was never in doubt that the appellant, whilst trying to replace the loose pin No 16, must somehow have stepped away from the platform and moved towards the hammer before the starter came down. It was never at any time suggested that the appellant had stepped away from the platform for any other reason or for no reason at all. Unfortunately, it was during the course of his moving away from the platform that the starter fell onto his buttocks, injuring him very seriously.

The appellant`s case in the court below

At the trial, the appellant raised four issues, namely:

1 breach of statutory duty under the Factories Act (Cap 104);

2 common law negligence on the part of the respondent as employers of the appellant;

3 res ipsa loquitur; and

4 contributory negligence.

The issue of res ipsa loquitur was abandoned at the appeal and as such we need not go into that.

The appellant had been a rigger for seven years before the accident, having started work a year after completing his secondary school education. Before starting work as a rigger, he never received any training on how to repair mechanical equipment. Before he joined the Sumpile 8, he had never worked on a piling barge. When he came on board the Sumpile 8 about three months before the accident, it was Ahmad, the coordinator, who had explained to him the functions of the barge and the method of tying up piles. During those three months, Ishak had personally instructed the appellant on his duties as a rigger only about four or five times. A fellow colleague had explained to the appellant the workings of the piling equipment on board. He had only worked on the platform in the piling tower for just one and a half weeks before the accident. Ahmad, who had assigned him to work in the piling tower, had explained to the appellant that he would be required to attend to any oil spills or loose equipment in the machinery.

Basically, the appellant understood that his job included having to observe the movement of the hammer downwards and to make sure that everything was working properly. In addition, if he should discover any simple defect which was within his competence to rectify, then he should execute the repairs himself although he had not received any strict...