The "Lotus M (No 2)"

• Jurisdiction: Singapore
• Judgment Date: 06 February 1998
• Date: 06 February 1998
• Docket Number: Civil Appeal No 202 of 1996
• Court: Court of Appeal (Singapore)

The “Lotus M”

[1998] SGCA 9

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 202 of 1996

Court of Appeal

Tort–Negligence–Employer's liability–Indemnity–Whether employer allowed to obtain indemnity from wrongdoer for any damages employer had to pay to injured party–Sections 11 (1) (c) and 11 (2) Civil Law Act (Cap 43, 1994 Rev Ed)–Tort–Negligence–Employer's duty–Reasonable care to provide safe system of work–Duty non-delegable–Whether employer liable for failing to take reasonable care

As a result of an explosion that occurred on board the Lotus M, a few of Sunray Marine's workmen died while many others were injured. Sunray Marine as the employer of the workmen paid compensation under the Workmen's Compensation Act (Cap 354, 1985 Rev Ed) (“the Act”) to those who proceeded under the Act. Three of the injured however chose to proceed at common law against Sunray Marine for damages and loss sustained by them. Sunray Marine brought an action claiming an indemnity under s 18 (b) of the Act from the shipowner for the amount paid and a declaration that it was entitled to be indemnified by the shipowner in respect of the three common law claims.

The trial judge found the shipowner solely to blame for the accident and granted Sunray Marine the indemnity under s 18 (b) of the Act but refused to grant the declaration.

The shipowner appealed against the granting of the indemnity under s 18 (b) in Civil Appeal No 203 of 1996 and that appeal was dismissed and the judgment reported at [1997] 3 SLR (R) 175. The present appeal related to the trial judge's refusal to grant the declaration to Sunray Marine. The issue was whether an innocent party was allowed to obtain an indemnity from the wrongdoer for any damages the innocent party had to pay to the injured party, at common law, independent of any contract.

Held, allowing the appeal:

(1) As the shipowner was found to be the sole tortfeasor, Sunray Marine was not entitled to an indemnity based on s 11 of the Civil Law Act (Cap 43) as it was not a joint or a several tortfeasor: at [15] and [21].

(2) An employer owed to his employee a duty to exercise reasonable care to ensure that the system of work provided for him was a safe one. The provision of a safe system of work had two aspects: (a) the devising of such a system; and (b) the operation of it. The duty concerned was either personal or non-delegable. If it was not performed, it was no defence for the employer to show that he delegated its performance to a person, whether his servant or not, whom he reasonably believed to be competent to perform it. Despite such delegation the employer, was liable for the non-performance of the duty. As such, Sunray Marine had a non-delegable duty to take reasonable care to provide a safe system of work for its workers and, on the facts, was therefore liable for breach of this duty: at [22], [30], [31] and [37].

(3) Sunray Marine had as a matter of practicality relied on the shipowner to provide a safe system of work and the shipowner had failed to do so. In the circumstances, there was no reason to deprive Sunray Marine of the remedy of the declaration sought: at [38] to [40].

Lotus M, The [1997] 3 SLR (R) 175; [1998] 1 SLR 1 (refd)

McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906; [1987] 2 All ER 878; [1987] 2 Lloyd's Rep 201 (folld)

Civil Law Act (Cap 43,1994 Ed)ss 11 (1) (c), 11 (2) (consd)

Port of Singapore Authority Act (Cap 236, 1985 Rev Ed) (repealed)s 3 (1)

Workmen's Compensation Act (Cap 354, 1985Rev Ed)s 18 (b)

Civil Liability (Contribution) Act1978 (c 47) (UK)s 1 (1)

Law Reform (Married Women and Joint Tortfeasors) Act 1935 (c 30) (UK)s 6 (1) (c)

Niru Pillai and Chua Ping (Niru & Co) for the appellant

B Ganesh (Ganesha & Partners) for the respondent.

Judgment reserved.

M Karthigesu JA

(delivering the judgement of the court):

1 This appeal arose out of an explosion that occurred on board the Lotus M now named Pretty (Lotus M) on 16 February 1992. At the time of the tragedy, the appellants' (“Sunray Marine”) workmen were on board the Lotus M doing repair works. As a result of the explosion, five workmen were found dead, five missing and presumed dead and many were injured. Consequently, Sunray Marine as the employer of the workmen paid compensation under the Workmen's Compensation Act (Cap 354) (“the Act”) to those who proceeded under the Act amounting to $348,946.62 (“the compensation”). Three of the injured however chose to proceed at common law against Sunray Marine for damages and loss sustained by them as a result of the explosion.

2 Sunray Marine having paid the compensation brought an action claiming:

(a) an indemnity under s 18 (b) of the Act from the respondents (“the shipowner”) for the amount paid; and

(b) a declaration that it is entitled to be indemnified by the shipowner in respect of the three common law claims.

3 The trial judge awarded Sunray Marine the indemnity under s 18 (b) of the Act but refused to grant them the declaration. The present appeal relates to the trial judge's refusal to grant the declaration to Sunray Marine. The decision of the trial judge in granting the indemnity under s 18 (b) of the Act was appealed against in Civil Appeal No 203 of 1996. That appeal was dismissed by this court earlier in October last year. The judgment is reported at The Lotus M [1997] 3 SLR (R) 175.

4 The Lotus Mis a motor tanker of 16,793 gross tons. Her port of registry is Panama and her owners at the material time were Easy Shipping Corporation of Liberia. Her operators were Navix Line Ltd of Japan whose local representative was Navship (Singapore) Pte Ltd (“Navship”). The Lotus M was generally deployed to transport petroleum products including naphtha. Her forward section is divided into fifteen cargo tanks, five each on port, centre and starboard, and two slop tanks. The proceedings involve the No 5 centre tank.

5 Sunray Marine is a company specialising in ship repairs. On 7 February 1992, Sunray Marine had been contacted by one Nagase, the superintendent in the employment of Navship, the agents for the owners of Lotus M. Nagase informed Sunray Marine that he wished to engage its services to conduct repair works on board the Lotus M.

6 On 10 or 11 February 1992, a representative of Sunray Marine, a foreman with the company, one Chu Yeng Choon (“Chu”) and Nagase went on board the Lotus M to conduct an inspection of the vessel. Chu then met the Master, Captain Yasunosuke Kato (“the Master”), the Chief Officer, Toru Sato (“the Chief Officer”) and the Chief Engineer. After some discussion as to the scope of the work Sunray Marine was going to carry out, a list of repairs was drawn up.

7 Some of the repairs involved cutting and welding, basically “hot work”. Chu therefore informed the Master, the Chief Officer, the Chief Engineer and Nagase that the tanks must be gas free. They therefore assured him that the tanks would be gas freed prior to Sunray Marine's commencement of work.

8 The Lotus M then continued her services deploying cargo. The last consignment of naphtha before the commencement of the repairs was discharged at 0620 hours on 14 February 1992 at the Van Ommeren Terminal after which at...