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

JurisdictionSingapore
Judgment Date23 April 2012
Date23 April 2012
Docket NumberSuit No 474 of 2010
CourtHigh Court (Singapore)
See Toh Siew Kee
Plaintiff
and
Ho Ah Lam Ferrocement (Pte) Ltd and others
Defendant

[2012] SGHC 87

Woo Bih Li J

Suit No 474 of 2010

High Court

Tort—Negligence—Whether occupiers' liability part of law of negligence—Whether there were concurrent duties on occupier under occupiers' liability and negligence

Tort—Non-occupier's liability—Test to determine if duty of care was owed by non-occupier to trespasser and, if so, standard of care

Tort—Occupier's liability—Duty of care—Plaintiff knowingly trespassing without reasonable excuse—Whether occupier owed duty of care to plaintiff and, if so, standard of care

Tort—Occupier's liability—Who is an occupier—Contractor which was not lessee of premises having power to restrict entry of people into part of premises—Whether such contractor was occupier for that part of premises

Tort—Occupier's liability—Who is an occupier—Lessee of premises not having supervisor at premises but having supervisor issue instructions to someone else—Lessee having some sort of interest in work that was ongoing on part ofpremises—Whether lessee was an occupier of that part of premises

Words and Phrases—‘Ship’—Whether dumb barge was ‘ship’ under s 8 (1) Maritime Conventions Act 1911 (2004 Rev Ed)

This was an action by the plaintiff in the High Court against three defendants, claiming damages for injuries caused to the plaintiff while he was at a shipyard leased by the first defendant (‘HAL’) from Jurong Town Corporation. The second defendant (‘Lal Offshore’) was a contractor fabricating a living quarters structure for Keppel FELS Ltd (‘KFELS’) on one part of the shipyard. Prior to the date of the accident, Lal Offshore had completed fabrication of the living quarters structure. The third defendant (‘Asian Lift’) was hired by KFELS to take and deliver the structure from the shipyard to KFEL's yard on the day of the accident. Asian Lift used the vessel Asian Hercules to pick up the structure. When Asian Hercules arrived at the shipyard on the day of the accident, her captain realised that the starboard mooring wire would likely get stuck in the ramp of a neighbouring dumb barge (‘Namthong 27’) . Despite this, the captain went ahead with the mooring operation. He sent seven or eight crew members to shore to clear the area and to secure Asian Hercules'mooring wires to the bollards on shore.

As part of the safety precautions taken for the mooring and lifting operations, Lal Offshore's project manager (‘Chua’) had, on the instructions of HAL's consultant (‘Sun Kiang’), set up a barricade to stop people from the main area of the shipyard entering the part of the shipyard where the lifting and mooring operations were to take place (‘the Operations Site’) . Chua had also positioned himself at the barricade to prevent people from entering the Operations Site. The shipyard was at the material time also fenced up on three sides leaving only the seafront unfenced.

On the morning of the day of the accident or on the day before the accident, the plaintiff received a call to attend to a vessel (‘Fortune II’) to service its radar. The plaintiff believed that Fortune II was docked at the premises adjacent to the shipyard (‘the adjacent property’) because he had previously attended to Fortune II there. When the plaintiff arrived at the adjacent property, he was informed that Fortune II was berthed at the shipyard instead. However, when the plaintiff arrived at the entrance to the shipyard, the main gate to the shipyard was shut because of the ongoing lifting operations in the shipyard. The plaintiff then entered the second gate of the adjacent property and subsequently entered the shipyard through a space at the end of the fence separating the shipyard and the adjacent property (‘the Seafront Access Point’) . HAL and its servants and agents did not give permission to the plaintiff to enter the shipyard and HAL had no knowledge ofthe plaintiff's exact location until the accident occurred and was reported to HAL. HAL and Chua did not place anyone to guard the Seafront Access Point, and had not put any sign at this area warning of the lifting operations.

After entering the shipyard, the plaintiff was searching for Fortune II and paid little attention to the mooring and lifting operations taking place around him. He said that he noticed Asian Hercules'starboard mooring wire lying on the ground but did not see it being attached to anything on the shore. He also said that it was not under great tension. He did not see Asian Hercules even though it was a huge vessel. The plaintiff also did not notice that the mooring wire had been caught in Namthong 27's ramp. The mooring wire subsequently became unstuck and sprung up to hit the plaintiff causing serious injury to him.

The plaintiff then instituted the present action against HAL and Lal Offshore for occupiers' liability and negligence, and against Asian lift for negligence. The defendants denied liability. Asian Lift also relied on the defence of a time limitation under s 8 (1) of the Maritime Conventions Act 1911 (2004 Rev Ed) (‘MCA’) which was applicable if the plaintiff were found to be on board a ship when he suffered the injuries.

Held, dismissing the claims against all defendants:

(1) Although Namthong 27, a dumb barge, was a ‘ship’ under the s 8 (1) MCA, Asian Lift did not discharge its burden to prove that the plaintiff was on board Namthong 27's ramp when he was hit by Asian Hercules' starboard mooring wire. The evidence relied upon by Asian Lift did not unequivocally state that the plaintiff was on Namthong 27's ramp when hit. Hence, Asian Lift did not prove that the plaintiff was on board a ship when he was injured, and the time-bar defence under s 8 (1) MCA failed: at [36] and [58] .

(2) A party could be an occupier of premises for a claim under occupiers' liability as long as it had a sufficient degree of control over the premises, for instance, where a party had the power of permitting or prohibiting the entry of other persons into the premises. In the present case, Chua was present at the Operations Site and had instructed the other employees of HAL and Lal Offshore to keep behind the barricade set up to cordon off the Operations Site. It was also Chua who instructed HAL's guard at the main entrance to the shipyard to prevent anyone from entering the shipyard once the lifting operation commenced.In these circumstances, Lal Offshore was an occupier of the Operations Site at the material time: at [60] and [61] .

(3) However, the absence of immediate supervision and control did not necessarily lead to the cessation of duty as an occupier in law. Some form of general control over the premises coupled with an interest in the activity that was taking place at the accident site was sufficient. In the present case, even though HAL did not have its supervisors at the Operations Site at the material time, Sun Kiang retained some degree of control via instructions to Chua to set up the barricade and to stop people from entering the Operations Site once the operations commenced. Further, HAL as lessees of the shipyard had to have had some degree of control and interest over all works in their premises, including the fabrication and lifting of the living quarters structure at the Operations Site. Hence, HAL was a co-occupier of the Operations Site at the material time: at [62] , [65] and [66] .

(4) The plaintiff had knowingly trespassed into the shipyard. When entering the adjacent property's second gate, he had to have seen the shipyard's main gate, which was closed at the material time, and a large sign bearing the shipyard's name because these were only less than 10 m away from the adjacent property's second gate. Furthermore, there was a number identifying the adjacent property, which was large in size, next to the adjacent property's second gate. It was likely that the plaintiff would have seen this number and known that the second gate which he had gone through was of the adjacent property and not of the shipyard. Finally, the plaintiff had to have known that the fence separating the adjacent property from the shipyard was demarcating two separate premises. By entering the shipyard without the consent of HAL or anyone else in these circumstances, he had knowingly trespassed into the shipyard, and without good excuse: at [68] , [69] , [75] and [76] .

(5) The law on occupiers' liability in Singapore was derived from English common law prior to 1957 (as regards the duty to lawful entrants) or 1984 (as regards the duty to trespassers) : at [96] .

(6) The preponderance of judicial and academic views pointed to the conclusion that occupiers' liability formed part of the law of negligence and that an occupier did not have concurrent liabilities under the law of occupiers' liability and under the law of negligence: at [100] to [109] .

(7) An occupier would be liable to a trespasser who was injured by the occupier's breach of duty towards his lawful visitors, if there were any, but he owed no duty to an adult trespasser who trespassed knowingly and without any reasonable excuse for doing so (‘the Clerk & Lindsell approach’) . This put the onus on the trespasser to show that he trespassed unknowingly or had reasonable excuse to do so: at [103] and [114] .

(8) The Clerk & Lindsellapproach only applied to adult trespassers, not child trespassers, and did not take into account the occupier's knowledge or lack of knowledge of the presence of the trespasser or the likelihood of trespass: at [116] and [117] .

(9) The plaintiff bore the burden of proof to establish his status as it was for him to establish that the defendant owed him a duty of care. If he was a trespasser, it was for him to establish that he trespassed unknowingly. If he trespassed knowingly, then it was for him to establish that he had a reasonable excuse for doing so: at [119] .

(10) Under the Clerk & Lindsellapproach, the usual standard of...

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5 cases
  • See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 24 April 2013
    ...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 [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 (Pri......
  • MCST Plan No 2668 v Rott George Hugo
    • Singapore
    • High Court (Singapore)
    • 27 May 2013
    ...Plan Assure PAC v Gaelic Inns Pte Ltd [2007] 4 SLR (R) 513; [2007] 4 SLR 513 (folld) See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd [2012] 3 SLR 227, HC (refd) See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd [2013] 3 SLR 284, CA (folld) Spandeck Engineering (S) Pte Ltd v Defence Scie......
  • See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others
    • Singapore
    • Court of Appeal (Singapore)
    • Invalid date
    ...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 Ferroceme......
  • Management Corporation Strata Title Plan No 2668 v Rott George Hugo
    • Singapore
    • High Court (Singapore)
    • 27 May 2013
    ...(“See Toh (CA)”) affect this Appeal (if at all)? In the High Court case of See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2012] 3 SLR 227, the plaintiff, See Toh Siew Kee, claimed damages against Ho Ah Lam Ferrocement (Private Limited), Lal Offshore Marine Pte Ltd, and Asian......
  • Request a trial to view additional results
3 books & journal articles
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2012, December 2012
    • 1 December 2012
    ...whether it was simply an aspect of the broader tort of negligence. The High Court in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd[2012] 3 SLR 227 (‘See Toh Siew Kee’) expressed the view that occupiers' liability should be viewed as an aspect of negligence. A differently constituted co......
  • Case Note
    • Singapore
    • Singapore Academy of Law Journal No. 2013, December 2013
    • 1 December 2013
    ...2 SLR(R) 746. 64 Wheat v E Lacon & Co Ltd [1966] AC 552 at 578, per Lord Denning. 65 See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd [2012] 3 SLR 227 at [19]–[20]. 66 See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd [2012] 3 SLR 227 at [104]. 67See Toh Siew Kee v Ho Ah Lam Ferrocement ......
  • Building and Construction Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2012, December 2012
    • 1 December 2012
    ...occupiers' liability and breach of statutory duty. 7.44 Interestingly, a later case in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd[2012] 3 SLR 227 (‘See Toh Siew Kee’) held (at [109]) that ‘an occupier does not have concurrent liabilities and his liability is part of the law of negli......

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