Sim Cheng Soon v BT Engineering Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 05 December 2005
• Neutral Citation: [2005] SGHC 223
• Docket Number: Suit No 547 of 2004
• Date: 05 December 2005
• Published date: 08 December 2005
• Year: 2005
• Plaintiff Counsel: Wu Xiaowen (Lexton Law Corporation)
• Citation: [2005] SGHC 223
• Defendant Counsel: Edwina Fan and Diana Ang (Kelvin Chia Partnership)
• Court: High Court (Singapore)
• Subject Matter: Tort,Section 33 Factories Act (Cap 104, 1998 Rev Ed),Duty of care,Employee injured while working on sea vessel,Negligence,Breach of statutory duty,Breach of duty,Employee alleging cause of accident due to employer's and third party's breaches of duty under Factories Act to construct soundly and to properly maintain means of access to work area,Whether employer breaching duty to provide safe system of work,Whether third party breaching duty to provide safe system of work,Occupier’s liability,Employee alleging cause of accident due to employer's breach of duty of care,Whether employee's injuries sustained in manner alleged,Employee injured while working on sea vessel at third party's premises,Employee alleging cause of accident due to third party's breach of duty of care as occupier

5 December 2005 Judgment reserved.

Lai Siu Chiu J:

The facts

1 This claim by the plaintiff, Sim Cheng Soon, resulted from an industrial accident on 22 June 2002. The plaintiff was then employed by the first defendant, BT Engineering Pte Ltd, which business, inter alia, involved the repair and conversion of tankers and other ocean-going vessels.

2 Prior to the accident, the plaintiff was a general welder of some 30 years’ experience (from 1971) and had been employed by the first defendant since 1988 or 1989. He had had some eight years’ experience doing welding work in shipyards. In April 2002, he and other workers of the first defendant were deployed to carry out welding works on board a ship called the Falcon (“the vessel”) which was then docked in the yard of the second defendant, Keppel Shipyard Limited. The first defendant was then constructing platforms on the vessel (in four modules) to convert it from a tanker to a floating, production, storage and offloading vessel. The plaintiff started work in module 12.

3 On 22 June 2002 at about 8.00am, the plaintiff commenced welding work on level 3 of module 10 in the vessel. At about 11.30am, in preparation for going to lunch, the plaintiff put away his pail and work tools, detached his welding torch and walked on the working platform towards the access ladder he normally used to descend to the vessel’s deck on level 1. According to the plaintiff, while he was walking towards the ladder, he fell into and through an uncovered and unfenced opening in the platform and landed on the vessel’s deck.

4 The plaintiff who was then 51 years of age suffered serious injuries which rendered him a quadriplegic; his lower body is paralysed. He can no longer work and requires two full-time caregivers to attend to his daily needs.

The pleadings

5 The plaintiff sued both defendants for the injuries he sustained. As against the first defendant, he alleged that the company breached its duty as his employer. As against the second defendant, the plaintiff’s claim was based on occupier’s liability. The plaintiff alleged that both defendants failed to take reasonable care for his safety including, failing to ensure that the opening in the working platform was and remained closed or was fenced, and failing by means of signage or notices, to give warning of the presence and position of the opening in the working platform. The plaintiff further alleged that the defendants had breached various provisions of the Factories Act (Cap 104, 1998 Rev Ed) (“the Act”) in failing to construct soundly and to properly maintain means of access.

6 In the common Defence filed by the defendants, they denied they were negligent or were liable for the plaintiff’s injuries. The defendants alleged that the plaintiff lost his grip while he was descending the ladder and hence he fell onto the deck. They denied he fell into and through the alleged opening in the floor on level 2.

The evidence

7 Apart from the plaintiff, no one saw or was at the scene of the accident. The plaintiff was the only witness for his case while the first and second defendants called one witness each.

The plaintiff’s case

8 According to his written testimony, the plaintiff was working on level 3 of module 10 of the vessel on 22 June 2002. He had been carrying out welding works there for about four to five days. The plaintiff’s daily routine was to collect his equipment from the store. The equipment comprised of a white pail (hereinafter referred to as “the equipment pail”) which contained his gloves, welding shield, welding torch, welding brush, chisel and rope, a blue tube (holding his welding rods) and a container which was used to hold discarded welding rods (“the container”).

9 After collecting his equipment, the plaintiff would climb from level 1 to level 2 of module 10 to where the welding machine was located, using an access ladder (“the access ladder”). From level 2, he would collect the equipment pail and the container that had been tied to a rope at level 1 by the “fireman” or the fireman’s assistant. The fireman’s duty was to ensure that no fires occurred and to take the necessary preventive measures. After he had pulled the rope and the equipment to level 2, the plaintiff collected the equipment pail and container and walked to another area of the level, using a different ladder (“the second ladder”) to climb up to level 3 of module 10. He used a rope to hoist the equipment pail from levels 2 to 3. The height between levels 2 and 3 of the module was less than the height between levels 1 and 2, which was about 3m.

10 The siren for workers to disembark from the vessel would go off daily at 11.50am. Workers were not allowed to be on the vessel during the lunch break. To ensure he got off the vessel in time, it was the plaintiff’s practice to pack up his equipment and start descending from levels 3 to 2 to 1 by about 11.30am everyday. The plaintiff would store his equipment pail and container temporarily at the storage area on level 2 before he descended to level 1. To descend from level 2 to level 1, the plaintiff would walk to an area at level 2 where staging was laid and use yet another ladder (“the third ladder”) to descend.

11 Before 11.00am on the morning of 22 June 2002, the plaintiff needed to visit the toilet. Accordingly, he descended from level 3 to level 2 using the second ladder. He then used the access ladder to get from level 2 to level 1 and descended from there to the level below module 10 where the toilet was located.

12 After using the toilet, the plaintiff noted it was near the lunch hour. He decided to wait at the temporary storage area until it was time to disembark from the vessel for the lunch break. He then realised that he had not detached his welding torch on level 3 of the module. The plaintiff first ascended to level 1 to switch off the power to the welding machine. He then proceeded to level 3 to detach his welding torch and to pack his equipment into the equipment pail. Thereafter, the plaintiff lowered his equipment pail to level 2, descended to level 2 by the second ladder, collected his equipment pail from level 2 and put it in the temporary storage area.

13 It was the plaintiff’s case that he then proceeded to walk in the direction of the third ladder (which was nearest the temporary storage area) so that he could descend to level 1. He claimed he followed the exact same route he had used in the two weeks prior thereto. He further asserted that previously, there were stagings constructed and laid such that from (and beyond) the temporary storage area, he could walk straight towards the third ladder.

14 The plaintiff claimed that in the afternoon of 21 June 2002, he had seen workers removing scaffolding and staging from level 3 of module 10. That evening, when he left the second defendant’s shipyard, he had mentioned this fact to his co-workers and he was told that the reason for the removal of the scaffolding and staging was an inspection by the vessel’s owner scheduled for Sunday, 23 June 2002.

15 However, on 22 June 2002, when he was walking towards the third ladder at about 11.30am, the plaintiff said he suddenly fell into and through an unfenced opening where there should have been a platform. There were also no warning signs or barriers around the opening. The plaintiff fell all the way down to level 1 of module 10 where he landed on his back. He provided no further details of the accident.

16 I should point out at this juncture that when the plaintiff’s solicitors first wrote to the defendants on 13 November 2002 (see PB5–6) giving notice of his claim, the former alleged that when the plaintiff stepped towards the third ladder to go down, he stepped into empty space instead of planks which should have been around the third ladder. It was then alleged that the plaintiff’s momentum carried him through empty space until he landed on the deck. The plaintiff was also said to be working on level 2 not level 3 of the vessel that day.

17 The plaintiff denied the defendants’ contention that the accident happened because he had probably lost his grip while climbing or descending the third ladder. The plaintiff described the allegation as baseless and utterly false. In his affidavit evidence, the plaintiff sought to disprove the allegation in lengthy submissions contained in numerous paragraphs. He also denied he was not wearing his safety helmet at the material time. Otherwise, he would not have survived the accident. He agreed he was not then wearing his safety belt, the reason being that there was no requirement for him to do so.

18 The plaintiff deposed that:

(a) He was quite some distance away from the third ladder when he fell and he could not therefore (as the defendants alleged) have attempted to get to the area behind the third ladder.

(b) It was impossible for him to have gone from the temporary storage area to the area behind the third ladder as this was a roundabout and relatively long L-shaped route to take. In any case, there was a barrier in front of that area; he could not have climbed over the barrier in order to gain access to the area behind the third ladder.

19 The plaintiff alleged that he only attended two short and general safety courses for his work on board the vessel. There was a one-day safety course conducted at the shipyard after which he was issued with a temporary pass to work on the vessel. In late May or early June 2002, he attended a one-day course at the Ministry of Manpower (“MOM”). On his own, the plaintiff had attended other safety courses relating to working on board vessels in or about 1973, 1979 and 1987.

20 The plaintiff was cross-examined in extenso. He revealed there were other workers apart from him that day in module 10. The workers were the first defendant’s as well as from other contractors and/or the second defendant. He denied that his work place that day was on top of the generator shown in the defendants’ photographs (in...