Soon Pook Seng Arthur v Oceaneering International Sdn Bhd

• Jurisdiction: Singapore
• Judge: G P Selvam JC
• Judgment Date: 20 July 1993
• Neutral Citation: [1993] SGHC 171
• Citation: [1993] SGHC 171
• Defendant Counsel: Daniel Poon (Goh Poh & Partners)
• Published date: 19 September 2003
• Plaintiff Counsel: Nathan Isaaac and Abdul Rohim Sarip (Nathan Isaac & Co)
• Date: 20 July 1993
• Docket Number: Suit No 1937 of 1989
• Court: High Court (Singapore)
• Subject Matter: 'Factory',Duty of employer to employee,Tort,Definition of floor,Employers’ duties,s 6(1) & (2)(j) Factories Act (Cap 104),Employment Law,ss 6(6) & 33(1) Factories Act (Cap 104),Definition of factory,Words and Phrases,Statutory duty,Whether defendants' premises was a factory,Whether accident occurred in place of work or floor which was part of and in the factory as defined,Employer's liability for negligence of servants or agents,ss 6(1), 6(2)(j), 6(6) & 33(1) Factories Act (Cap 104),Definition of place of work,'Places of work','Floors',Floor of premises not properly maintained,s 33(1) Factories Act (Cap 104),Vicarious liability

Cur Adv Vult

The plaintiff`s pleaded case

The plaintiff in this action claims damages for personal injuries suffered by him. He alleged breach of statutory duty and negligence against his employers, the defendants.

The plaintiff was a qualified diver. His pleaded case was that while he was not on a diving assignment he worked in the defendants` workshop store maintaining diving equipment and performing such other duties that the company allocated to him. The original pleading contained these allegations: On the day of the accident he was instructed by the defendants` supervisor, servant or agent to move a large steel cabinet, 8 ft by 10 ft in size, from the workshop to the area outside with three co-workers. There was no supervision as to how to move the cabinet. The only equipment which was available to the plaintiff and his co-workers to move the cabinet were two small wooden trolleys. The plaintiff and his co-workers managed to place the cabinet onto the two small trolleys in a vertical position and then, with each of them holding on to one corner of the said cabinet, proceeded to wheel the cabinet from the workshop to the area outside as instructed. The ground outside the workshop was uneven. In the course of wheeling the cabinet, a wheel of one of the two trolleys entered a hole rendering further movement of the cabinet impossible. The plaintiff released his hold on the cabinet to check what was restricting its movement. He stopped to look and saw the wheel caught in a hole. The weight of the cabinet was too much for the three co-workers. So the cabinet toppled and fell on to the plaintiff. In consequence he suffered injury.

The legal basis of the claim was that the injury was occasioned by reason of the breach on the part of the defendants of their statutory duty in that the floor of the premises was not properly maintained as required by s 33(1) of the Factories Act (Cap 104).

The plaintiff also based his claim on negligence and/or breach of duty on the part of the defendants, their servants or agents. Particulars of negligence and/or breach of duty alleged were:

Failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged upon the work.

Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known.

Requiring the plaintiff to move a weighty cabinet, without providing adequate lifting equipment such as a crane or a forklift.

Suffering the plaintiff and his co-workers to move the said cabinet without providing adequate supervision of how to move the said load.

The defendants failed to provide and maintain a safe system of work in the said premises.

The principal injury alleged was a wedge-shaped compression fracture on the twelfth thoracic vertebra. The plaintiff said that the fracture he sustained predisposed him to increased risk of dysbaric osteonecrosis as well as decompression sickness of the spine. In consequence he was disabled from continuing his occupation as a diver.

Application to amend the statement of claim

At the trial an application was made to amend the statement of claim by changing the allegation that `The plaintiff released his hold on the said cabinet` to `One of the other workers, namely, See Ah Bah released his hold on the said cabinet`.

The defendants objected to the amendment on the ground that it introduced for the first time a fresh cause of action. The facts, it was said, were changed substantially. I rejected the objection and allowed the amendment with liberty to amend the defence. The material part of the court`s power to allow the plaintiff`s application is contained in O 20 r 5 of the Rules of the Supreme Court 1970. It reads as follows:

(5) (1) Subject to Order 15, Rules 6, 7 and 8, and this Rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

The change which the plaintiff sought to effect was negligence by a co-worker. But it was not a substantial change. It played a small part in a broader factual matrix. The facts remained substantially the same. And it was just to allow the amendment because the defendants had had sufficient opportunity to investigate the accident and had they done so they would have known how it had occurred. No real prejudice arose by reason of the amendment.

Claim based on Factories Act

The material part of s 33 of the Factories Act on which the plaintiff relied reads as follows :

(1) All places of work, floors, steps, stairs, passages, gangways and means of access shall -

(a) be of sound construction and properly maintained.

This provision is applicable only if the place where the accident occurred is a factory as defined by the Factories Act. What is the same thing, the place of work or floor must be within the statutory meaning of these expressions.

The general definition of `factory` appears in s 6(1) of the Act. According to this `factory` means :

any premises in which, or within the close or curtilage or precincts of which, persons are employed in manual labour in any process for or incidental to any of the following purposes:

the making of any article or of part of any article;

the altering, repairing, ornamenting, finishing, cleaning, or washing, or the breaking up or demolition of any article; or

the adapting for sale of any article,

being premises in which, or within the close or curtilage or precincts of which, the work is carried on by way of trade or for purposes of gain and to or over which the employer of the persons employed therein has the right of access or control.

Subsection (2) provides that whether or not premises are factories by reason of the general definition, a number of specified instances is included in the term `factories`. The specified instance we are concerned with is s 6(2)(j) :

any premises in which mechanical power is used in connection with the making or repair of any article incidentally to any business carried on by way of trade or for purposes of gain.

The essence of the definition provisions is that the work or manual labour must be in connection with the activity specified (making, repairing etc of an article) and it must be carried on by way of trade or business of the occupier of the premises. So repairing an article does not render the premises a factory unless repairing an article is the business of the occupier as stated in s 6(1) or is incidental to the business carried on by way of trade or purposes of gain stated in s 6(2)(j). The activity contemplated by s 6(1) is repairing articles belonging to others such as repair of motor vehicles or ships. On the other hand, the repairing activity contemplated by s 6(2)(j) is making or repairing an article for their own purpose but in connection with the business of the occupiers of the premises such as a road or water transport business of a company which repairs its own vehicles or boats.

In the present case, the business of the defendants was not making or repairing any article by way of trade or for gain. Their business was that of providing a service - that is diving services in connection with prospecting and mining for petroleum. Making or repairing articles for others not being their business, the defendants are not within the general definition contained in s 6(1). The fabrication and repair of diving equipment was, however, incidental to their business of providing diving services and it was for gain. Accordingly the premises constituted a factory under s 6(2)(j). The mechanical power used was that of the cutting machine used in the premises in connection with the work carried on. Further, the fact that there were mechanics working in the premises indicates that mechanical power was used.

This conclusion that the premises constituted a factory does not mean that every part of the premises was part of the factory as defined. The plaintiff must go further and show that the accident happened in a place of work or floor which was part of and in the factory as conceived by the Act.

In my judgment, the words `places of work` in the context of the Factories Act means places where the work as defined by the Act is carried on. In this case the work contemplated is the making or repairing of...