See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 24 April 2013
• Neutral Citation: [2013] SGCA 29
• Plaintiff Counsel: Suresh Damodara (Damodara Hazra LLP)
• Docket Number: Civil Appeal No 54 of 2012
• Date: 2013
• Hearing Date: 17 October 2012
• Subject Matter: TORT,Negligence,Occupiers' Liability
• Published date: 30 May 2013
• Citation: [2013] SGCA 29
• Defendant Counsel: Magdalene Chew Sui Gek, Gho Sze Kee and Tay Min Si (AsiaLegal LLC),Srinivasan Selvaraj (Myintsoe & Selvaraj),Nagaraja S Maniam and Shelly Lim Lei-Yee (M Rama Law Corporation)
• Court: Court of Appeal (Singapore)
• Year: 2013

V K Rajah JA: Introduction

This is an appeal against the decision of the High Court judge (“the Judge”) in Suit No 474 of 2010 (see See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2012] 3 SLR 227 (“the Judgment”)). The suit was instituted by the plaintiff, See Toh Siew Kee (“See Toh”), against three defendants – Ho Ah Lam Ferrocement (Private) Limited (“HAL”), Lal Offshore Marine Pte Ltd (“Lal Offshore”) and Asian Lift Pte Ltd (“Asian Lift”). See Toh claimed damages against HAL and Lal Offshore under the law on occupiers’ liability and against all three defendants (collectively, “the Defendants”) under the tort of negligence for injuries caused to him while he was at a shipyard at 9/11 Tuas Basin Close (“9/11 TBC”) which was leased by HAL from Jurong Town Corporation (“JTC”). The Judge dismissed See Toh’s claims against all the Defendants. See Toh has appealed to this court against that decision.

For ease of reference and to facilitate understanding, I now set out the schematic arrangement of this judgment:

Introduction [1]–[2] The parties to the dispute [3]–[5] The undisputed facts [6]–[11] The decision below [12]–[16] The issues before this court [17]–[19] My decision [20] Issue 1: Should the law in Singapore on occupiers’ liability be subsumed under the general law of negligence? [20] The genesis of the common law position [20] The illogicality of the static-dynamic dichotomy [41]–[48] The Spandeck test applied to occupiers [76] A coda on other objections to abolishing the traditional common law rules on occupiers’ liability [98]–[100] Issue 2: Did the Defendants owe See Toh a duty of care, and if so, did they breach their duty? [101]–[102] The circumstances surrounding See Toh’s trespass [103] HAL and Lal Offshore [104]–[107] Asian Lift [108] Contributory negligence [109]–[112] Conclusion [113]–[115] The parties to the dispute

See Toh was at the material time a service engineer with Norsk Marine Electronic, and was engaged by TCH Marine Pte Ltd (“TCH Marine”) as an independent contractor to service the radar on board its tugboat Fortune II. Prior to the accident, See Toh had been attending to vessels for about 26 years to repair and maintain radar equipment. Fortune II was at the material time used by TCH Marine to tow the barge Namthong 27, also owned by TCH Marine, from 9/11 TBC. Namthong 27 was at 9/11 TBC to collect wood chips to be delivered to TCH Marine’s customer, Biofuel Industries Pte Ltd.

HAL is in the business of building and repairing ships and other ocean-going vehicles. As mentioned above, 9/11 TBC was at the material time leased by HAL from JTC. HAL sublet 9/11 TBC to Lal Offshore pursuant to a Cooperation Agreement dated 14 April 2007. A small portion of 9/11 TBC, including the entire shoreline of 9/11 TBC,¹ was reserved by HAL for it to carry out the work of repairing boats and engines, and to load machinery and wood chips onto barges for export.² Lal Offshore later used part of 9/11 TBC to fabricate a set of living quarters for Keppel FELS Ltd (“KFELS”), which was to be delivered to an offshore oil rig.

Asian Lift was, in turn, engaged by KFELS to take delivery of the aforesaid living quarters (“the KFELS living quarters”) at 9/11 TBC and bring it to the offshore oil rig. Asian Lift intended to use a crane barge, Asian Hercules, for this purpose.

The undisputed facts

On the day of the accident, Asian Hercules arrived at 9/11 TBC. After arriving at the shoreline of 9/11 TBC, the crew of Asian Hercules intended to affix two metal mooring wires from Asian Hercules to bollards on the shore of 9/11 TBC. While this was being done, the starboard mooring wire of Asian Hercules became stuck (in shipping parlance, “fouled”) at the ramp of Namthong 27.

Despite knowing of this mishap and of the danger which might be posed to those present in the vicinity if the mooring of Asian Hercules (“the Mooring Operation”) were continued despite her starboard mooring wire being fouled, the captain of Asian Hercules (“Captain Hamid”) continued the Mooring Operation. As a precautionary measure, he sent seven to eight crew members to shore to clear the area and to secure Asian Hercules’s mooring wires to the bollards on shore. The area where Asian Hercules was to be moored and where the lifting of the KFELS living quarters was to take place shall, for convenience, be referred to in this judgment as “the Operations Site”.

Prior to the accident, See Toh received a call from a director of TCH Marine, Andrew Tay Nguang Yeow (“Andrew Tay”), asking him to service the radar of Fortune II. See Toh believed that Fortune II was docked at 15 Tuas Basin Close (“15 TBC”) because he had previously attended to Fortune II there.

15 TBC was occupied by Catermas Engineering Pte Ltd (“Catermas”) at the material time. When See Toh went to the main office of Catermas, he was informed by its manager, Tan Puay Choon, that Fortune II was berthed not at 15 TBC, but at the adjacent 9/11 TBC.

See Toh left 15 TBC through 15 TBC’s main gate and entered a second gate of 15 TBC (“the second gate”). After entering the second gate, See Toh walked to the shore. A fence separated 15 TBC from 9/11 TBC; there was an open space of about 5m between the end of the fence and the shoreline (“the Seafront Access Point”). See Toh then called Andrew Tay to verify Fortune II’s location. Andrew Tay told See Toh that Fortune II was in that area, but did not inform See Toh of the exact location of Fortune II. Andrew Tay also told See Toh that his supplier had gone to Fortune II earlier that day and had encountered no difficulty in locating the vessel.

See Toh entered 9/11 TBC through the Seafront Access Point. The parties gave differing versions of what happened after See Toh crossed into 9/11 TBC. Nonetheless, it is undisputed that See Toh was hit by Asian Hercules’s fouled starboard mooring wire as he was walking towards Namthong 27’s ramp while proceeding to Fortune II. A loud bang was also heard around the same time.

The decision below

The Judge was of the opinion that the preponderance of English judicial and academic views pointed to the conclusion that the law on occupiers’ liability formed part of the law of negligence. He therefore held that an occupier did not owe concurrent duties under the law on occupiers’ liability and the law of negligence (see [109] of the Judgment).

In relation to HAL and Lal Offshore, the Judge found both to be occupiers of the Operations Site at the material time. He also found that See Toh had knowingly trespassed onto 9/11 TBC by entering through the Seafront Access Point and not 9 /11 TBC’s main gate. Relying on Clerk & Lindsell on Torts (Sweet & Maxwell, 15th Ed, 1982), the Judge stated that an occupier would not owe a duty of care to an adult trespasser who trespassed knowingly and without any reasonable excuse (see the Judgment at [103]). As such, neither HAL nor Lal Offshore owed a duty of care to See Toh (see the Judgment at [138]). The Judge further held that even if HAL and Lal Offshore owed a duty of care to See Toh qua occupiers of the Operations Site, they would not have breached this duty (see the Judgment at [143]–[144] and [149]–[156]).

With regard to Asian Lift, whom See Toh did not allege to be an occupier (see [125] of the Judgment), the Judge was of the view that Asian Lift’s status as a non-occupier was irrelevant: occupiers and non-occupiers owed the same duty of care to trespassers (see [134] of the Judgment). Accordingly, for the same reasons as those applicable to HAL and Lal Offshore, the Judge found that Asian Lift did not owe a duty of care to See Toh (see [157] of the Judgment).

The Judge added, however (also at [157] of the Judgment), that had Asian Lift owed a duty of care to See Toh, Asian Lift would have breached this duty by proceeding with the Mooring Operation despite Asian Hercules’s starboard mooring wire having been fouled on the ramp of Namthong 27. The Judge was of the opinion that if Asian Lift were liable to See Toh, the latter would have been 65% contributorily negligent in not paying attention to his surroundings after trespassing onto 9/11 TBC (see the Judgment at [92]–[94] and [172]–[173]).

At the trial, Asian Lift also raised a time bar defence under s 8(1) of the Maritime Conventions Act 1911 (2004 Rev Ed). This defence failed as Asian Lift failed to establish that See Toh was on board a ship when he was injured (see the Judgment at [58]). It is unnecessary for this court to consider this issue as Asian Lift has not appealed against this finding by the Judge.

The issues before this court

This case raises the important question of whether the legal principles applicable in Singapore in respect of occupiers’ liability should be subsumed under the general law of negligence. It also raises the question of whether and in what situations an occupier (or non-occupier) owes a duty of care to a trespasser.

There are two main issues before this court: First, should the law in Singapore on occupiers’ liability be subsumed under the general law of negligence? If so, what should the applicable test(s) be for determining whether a duty of care should be imposed on an occupier, and what is the relevant standard of care? Second, did the Defendants owe See Toh a duty of care? If so, did they breach their duty?

Each of these issues (referred to hereafter as “Issue 1” and “Issue 2” respectively) will be considered in turn.

My decision Issue 1: Should the law in Singapore on occupiers’ liability be subsumed under the general law of negligence? The genesis of the common law position

The law on occupiers’ liability which currently applies in Singapore is based on the traditional common law rules applicable in England prior to the enactment of the Occupiers’ Liability Act 1957 (c...