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

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judgment Date: 23 April 2012
• Docket Number: Suit No 474 of 2010
• Date: 23 April 2012

[2012] SGHC 87

High Court

Woo Bih Li J

Suit No 474 of 2010

See Toh Siew Kee

Plaintiff

and

Ho Ah Lam Ferrocement (Pte) Ltd and others

Defendant

Lee Wee Peng Lawrence (Lawrence Lee & Co) for the plaintiff

Nagaraja S Maniam and Shelley Lim (M Rama Law Corporation) for the first defendant

Srinivasan Selvaraj (Myintsoe & Selvaraj) for the second defendant

Magdalene Chew and Gho Sze Kee (Asia Legal LLC) for the third defendant.

Amus bin Pangkong v Jurong Shipyard Ltd [2000] 1 SLR (R) 839; [2000] 4 SLR 116 (refd)

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 (refd)

Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd [1996] SGHC 296, HC (refd)

Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd [1997] 2 SLR (R) 746; [1997] 3 SLR 677,CA (refd)

British Railways Board v Herrington [1972] AC 877 (not folld)

Buckland v Guildford Gas Light and Coke Co [1949] 1 KB 410 (refd)

Chandran a/l Subbiah v Dockers Marine Pte Ltd [2009] 3 SLR (R) 995; [2009] 3 SLR 995 (refd)

Commissioner for Railways v Francis John Quinlan [1964] AC 1054 (refd)

Creed v Mc Geoch & Sons Ld [1955] 1 WLR 1005 (refd)

Davis v St Mary's Demolition and Excavation Co Ld [1954] 1 WLR 592 (refd)

M'Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (refd)

Industrial Commercial Bank v Tan Swa Eng [1995] 2 SLR (R) 385; [1995] 2 SLR 716 (refd)

Lembaga Letrik Negara, Malaysia v Ramakrishnan [1982] 2 MLJ 128 (not folld)

Lim Seow Wah v Housing & Development Board [1990] 2 SLR (R) 760; [1990] SLR 1297 (folld)

Southern Portland Cement Ltdv Rodney John Cooper (an infant by his next friend Peter Alphonsus Cooper) [1974] AC 623 (refd)

Steedman v Scofield [1992] 2 Lloyd's Rep 163 (folld)

Von Rocks, The [1998] 2 Lloyd's Rep 198 (folld)

Wheat v ELacon & Co Ltd [1966] AC 552 (folld)

Application of English Law Act (Cap 7 A, 1994 Rev Ed) s 4 (1)

Interpretation Act (Cap 1,2002 Rev Ed) s 2 (1)

Maritime Conventions Act 1911 (2004 Rev Ed) s 8 (1) (consd)

Merchant Shipping Act 1995 (c 21) (UK)

Occupiers' Liability Act 1957 (c 31) (UK)

Occupiers' Liability Act 1984 (c 3) (UK)

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...