Soon Pook Seng Arthur v Oceaneering International Sdn Bhd

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 10 June 1995
• Neutral Citation: [1995] SGHC 146
• Court: High Court (Singapore)
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: Nathan Isaac, Abdul Rohim Sarip and DS Kanangara (Nathan Isaac & Co)
• Defendant Counsel: Govintharasa (Gurbani & Co)
• Subject Matter: Damages,Measure of damages,Personal injuries cases,Assessment,Post-trial losses,Conflicting evidence as to possibility of future events happening but for accident,Approach of court in making assessment,Appeal,When appellate court may interfere with initial award of damages
• Citation: [1995] SGHC 146

Cur Adv Vult

The plaintiff was a commercial diver. Unlike someone diving for recreation, a commercial diver does it for a living. He is usually employed by a diving contractor, and is sent offshore to do any of a variety of work underwater for the contractor`s client, such as surveying the sea bed or grouting a pipeline, to take just two examples from the plaintiff`s own logbook.

The plaintiff had been diving since 1975, mostly with a company called Comex. In the diving industry, you seldom find a diver on the permanent establishment of one employer. The norm is to work freelance, going from one employer to another. The reason is that employers do not always have enough jobs to keep a diver on diving work on a continuous basis. They would not pay a diver the full diving rate when he is not diving. A diver would earn more if he moves from one employer to another in accordance with the demand for his services. Sometimes, employers contract with divers in anticipation of diving jobs coming their way so that they do not have to scurry to get divers at the last minute, and rates for diving and non-diving days are agreed. In the plaintiff`s case, he worked as a salaried diver with Comex from 1975 to 1978. From 1978 onwards, he worked freelance. However, he had frequent repeat engagements with Comex.

In April 1987, the plaintiff was taken on by the defendants. He had not worked for them before. It was part of the contract with the defendants that during periods when he was not undertaking diving assignments, he was to work in the workshop on a non-diving rate. As it happened, he was not assigned any diving duties from the date he joined the defendants up to the date of the accident which gave rise to the claim in this suit.

On the day of the accident, 5 July 1987, he was instructed by his supervisor to move a heavy steel cabinet from the workshop to an area outside. He was doing this with three other men, using two wooden trolleys. They managed to move it until they came to a turning, when a wheel of one of the trolleys got stuck in a hole in the ground and they could not move on. While trying to set it right, one or more of the other workers let go of their hold on the cabinet. The plaintiff tried to hold on but the weight of the cabinet proved to be too much, and it toppled and fell on top of him. He sustained a wedge compression fracture of the 12th thoracic vertebra, as a result of which he had to give up his occupation as a commercial diver. After working on a few odd jobs, he settled down to a job described as a project coordinator for a contractor doing upgrading work at Marine Parade. He started that in November 1993.

In July 1993, GP Selvam J, who tried the case, found the defendants wholly liable, and gave the plaintiff judgment for damages to be assessed.

At the conclusion of the damages assessment, the learned assistant registrar on 15 June 1994 awarded the plaintiff a total of $301,368.71 made up as follows:

(1) General damages for pain and suffering - S$ 18,000.00

(2) Transport expenses - S$ 400.00

(3) Pre-trial loss of earnings - S$ 229,785.40

(4) Post-trial loss of earnings - S$ 53,183.31

Total: S$ 301,368.71

The learned assistant registrar`s assessment of pre-trial loss was based on loss over a net period of 6 years 81/2 months. Although the period that elapsed between the date of the accident and the date of assessment was nearly seven years, she took into account the fact that there was a slump in 1987 and found that the plaintiff could have worked about 21/2 months in total for that year. That, as I take it, plus about 61/2 years from January 1988 to the date of assessment, accounts for the 6 years 81/2 months that was used for the pre-trial loss. As for the post-trial loss, she used a multiplier of only two years, accepting the defendants` submission that only a small percentage of divers continued diving beyond the age of 40, and only rarely would any diver go beyond the age of 45.

In Pritchard v JH Cobden , the Court of Appeal of England upheld the practice in the case of a living plaintiff of ascertaining pre-trial loss of earnings as special damages, and of ascertaining post-trial loss of earnings as general damages, in the latter case by the application of a multiplier to a multiplicand. Their Lordships stated that only in relation to the latter has the use of a multiplier and multiplicand any relevance. Their Lordships also held that the delay between the date of the accident and the date of the trial is not a reason for selecting a multiplier from the date of the accident, as opposed to the date of trial; the plaintiff should not be deprived of his proper compensation because of the delay. This practice is generally followed here, and was followed in this case.

The plaintiff was born in February 1955. That makes him 32 at the time of the accident and 39 at the date of the assessment of damages.

The questions raised are, firstly, whether in the circumstances of this case, the multiplier that was used for the post-trial loss was too short, and, secondly, whether the learned assistant was right in deciding that the plaintiff could never have become a supervisor either during the pre-trial or the post-trial period.

Different forms of diving

Before I go further, I should say a few words about the different forms of diving which a commercial diver engages in. It is only a rudimentary account, but it should suffice for the purpose of appreciating the evidence. As shown in the plaintiff`s logbook, there is in the first place what is called surface diving, where you do not go very deep. The plaintiff`s logbook shows examples of such dives down to depths of a few metres to about 30 metres. The air the diver needs is supplied from the surface vessel, or he takes it down with him in a scuba tank on his back. He gets the job done at the bottom and returns to the surface.

Secondly, there is bell bounce diving. This is for greater depths, down to 90 metres or more, using what is known as a bell. It is basically a steel capsule which can be sealed against pressure from inside or outside. It is tethered to the surface vessel. Two persons go down. One is the `lock-out`, meaning that when they get down to where they want to go, he is the diver who gets out of the capsule and does whatever works needs to be done. The other man stays in the capsule, tending the umbilical for the diver and monitoring the gas or air supply. The job is done as quickly as possible. When it is finished, the crew returns to the surface in the capsule. This form of diving is called bell bounce diving, the word `bounce` having the flavour of the thing going up and down. The plaintiff`s logbook shows examples of total duration of dives of up to two hours, with most of them under an hour.

Thirdly, there is saturation diving. It is basically similar to bell bounce diving. The essential difference is that it is more leisurely than bell bounce diving and that the divers stay down at the bottom of the sea for many days on end, and do not come up after a short while like the bell bounce diver.

A saturation diver`s life on the whole is easier than that of the surface or bell bounce divers. For the same amount of diving time, the surface or bell bounce diver has to undergo more decompression sessions than the saturation diver. He has to work faster than the saturation diver, so as to minimise the decompression time. For the surface diver, he also has to contend with the rigours of the sea and of the weather when going in and out of water with his working gear as well as his normal scuba outfit.

Decompression

Now a word about decompression, also just enough to help appreciate the evidence. Divers in all these forms of diving have to undergo decompression after being down in the depths. Nitrogen, which forms the major component of air, dissolves in the blood and tissue of the body, and the longer and deeper you dive, the more it is dissolved. Decompression is the method of enabling the body to deal with this dissolved nitrogen in a safe way. If a diver does not go through decompression after a dive to any significant depth for any significant length of time, or if the decompression is not done properly, he may get decompression sickness, the `bends`. It is caused by the released nitrogen bubbles blocking vital arteries.

Divers when diving to great depths do not breathe normal air, containing as it does nitrogen, but a mixture of oxygen and helium. The plaintiff`s logbook shows that at depths of up to 51m, he used air, but at depths beyond that it was a mixture of oxygen and helium, but no nitrogen. I understand that when air diving is referred to in the evidence, it refers to diving with the use of air, and gas diving refers to diving using the helium-oxygen mixture.

Decompression is done according to decompression tables developed by diving physiologists. In the case of a surface dive, the diver simply regulates the rate of his ascent, according to the table. In the case of bell bounce diving, the capsule, which has been pressurized before the lock-out goes out at the bottom of the sea, is taken up to the surface vessel, still under pressure, with the crew inside. It is there locked on to a decompression chamber, and the crew take time going through the decompression process. I assume that it is similar for saturation diving.

Plaintiff`s experience and diving qualification

The plaintiff had done mainly surface and bell bounce diving. His more notable documented diving assignments, all related to offshore oilfield-related work, included working on the drilling rig `Discoverer III` in 1978 and 1979 at Bombay and Madras, involving bell bounce gas diving. From March 1980 till the end of 1982, he was in Abu Dhabi on the instruction of Comex, doing underwater oil pipeline work involving surface dives in relatively shallow waters. In September 1983, he was sent by Comex to do work in Trengganu involving wet bell gas...