Chandran a/l Subbiah v Dockers Marine Pte Ltd (Owners of the Ship or Vessel "Tasman Mariner", Third Party)

Judith Prakash J:

[1] By this action, the plaintiff claimed damages for personal injuries and consequential loss which he suffered as a result of an accident whilst in the employment of the defendant. The plaintiff fell from a height of about 10 metres onto the top of a cargo container in the hold of the vessel Tasman Mariner (“the vessel”) and suffered head and hand injuries as a result. After the plaintiff commenced his action, the defendant sought to bring a third party claim against the owners of the vessel. Unfortunately, the defendant was not able to serve the third party and the action proceeded between the plaintiff and the defendant only.

[2] The plaintiff was a freelance stevedore engaged by the defendant to carry out stevedoring tasks on board the vessel when it was docked at the PSA Pasir Panjang Wharves (“the wharf”) on 18 October 2005. The defendant was carrying on stevedoring business contracting services and was contracted by the owners or agents of the vessel to carry out cargo operations on the vessel whilst it was docked at the wharf.

[3] According to Rajendran S/O Pavadai (“Mr Rajendran”) who was a supervisor employed by the defendant, the usual arrangement in the stevedoring industry was that stevedores would only be engaged on an ad hoc basis and would be paid by shift or work carried out. The stevedores would be engaged through their freelance stevedoring foreman and there would be no contact between the freelance stevedore and the defendant. This evidence did not affect the plaintiff’s liability, however, because for the purposes of this claim, the defendant had conceded that it would be considered the employer of the plaintiff. Therefore, it was not necessary for me to consider the issue of whether the plaintiff had been employed by the defendant or was merely engaged as an independent contractor. I think such an argument would have been difficult for the defendant to maintain as it appeared from the facts of this case that at all times the plaintiff in carrying out his work was under the supervision of Mr Rajendran.

[4] According to the plaintiff’s evidence as set out in his affidavit of evidence-in-chief, on 18 October 2005, he and three other workers were deployed to carry out stevedoring tasks on board the vessel. Their task was to see to the proper arrangement of some cargo containers which were being stored inside Cargo Hold (Hatch) No. 5 (“Hatch 5”) of the vessel. After lunch, at about 1.40pm, the plaintiff was descending into Hatch 5, using a ladder fixed to the wall of the hatch when a section of the ladder dislodged causing the plaintiff to fall a distance of about 10 metres into the hold.

[5] During cross-examination, however, the plaintiff said that he could not remember whether his task that day was to load or unload the container. Similarly, he claimed that he could not remember whether he fell when descending into the hatch or when coming out of the hatch. He explained that after he fell, he became unconscious. When he regained consciousness, he was told that he fell when he was climbing out of the hatch. The plaintiff claimed that he could not remember how the accident occurred.

[6] This inconsistency in the plaintiff’s version of events is not critical. Whether the plaintiff fell when he was using the ladder to climb out of Hatch 5 or when he was using it to descend into Hatch 5 is not relevant to the liability of the defendant.

[7] The plaintiff claimed that the defendant:

[8] I dismissed the claim and I now provide my reasons for doing so. I will discuss the common law duty of care first as on the facts that seemed to be the claim with the greatest chance of success.

[9] The common law duty of care of employers with respect to their employees is clear. In Parno v SC Marine Pte Ltd [1999] 4 SLR 579 (“Parno”), the Court of Appeal held that the duty of an employer was threefold — to provide: a competent staff of men, adequate material, and a proper system of work and effective supervision.

[10] The plaintiff argued that the defendant had breached its duty to provide a safe place of work and a safe system of work. In order to discharge the duty to provide a safe place of work, the defendant had a duty to conduct a proper inspection of the premises. However, no inspection had been carried out to ascertain the stability and soundness of the ladder. He also argued that the defendant had breached its duty to provide a safe system of work by failing to provide adequate equipment for him to enter Hatch 5.

[11] In my judgment, the present case could not fall under the safe system of work category. A worker must always have entry/access to the worksite. The means of entry to the premises cannot constitute the system of work. The defendant was not the owner or operator of the vessel. It was working on the vessel and had to use the means of access provided by the owners of the vessel in order to carry out its work. In this case, the vessel had been constructed in such manner that the usual way for stevedores and other persons to gain access to the holds of the vessel was by utilising the ladder which had been constructed and attached to the wall of each hold. It was not wrong on the part of the defendant to require its workers, including the plaintiff, to enter the holds by using the attached ladders.

[12] The plaintiff argued that the defendant should have provided some other means of ingress. I did not agree. It was not wrong or unsafe for the defendant to insist that the plaintiff use the method provided by the vessel unless there was some industry practice that the defendant had failed to follow. For example, if there had been a practice of having safety belts to lower workers into a hold and the defendant failed to provide such safety belts, he could be in breach of the duty to provide a proper system of work. However, this was not the case here. No evidence of such an industry practice was adduced. The danger was the defect in the ladder and that it had not been properly maintained. If any liability was to be imposed on the defendant by reason of the defect in the ladder, such liability would arise as a breach of the employer’s duty to provide a safe place of work rather than as a breach of its duty to provide a safe system of work.

[13] Indisputably, an employer has a duty to provide a safe place of work to its employees. The issue in this case was, however, whether this duty extended to ensuring that the premises of a third party were safe in the case where the premises was a vessel and the employer and its workers were only invitees with no control over the same.

[14] In Thomson v Cremin [1956] 1 W.L.R. 103 (“Cremin”), a labourer employed by a firm of Glasgow stevedores to discharge bulk grain in a ship's hold was injured when he was struck by the fall of a "shore" fixed by shipwrights in Australia to hold a shifting-board. The House of Lords held that the firm of stevedores was not negligent. It was not proved to be part of the regular practice of such firms to inspect the shores and unless they observed a defect in a particular shore they were not obliged to take special precautions. Lord Wright observed that:

[15] Cremin was approved by the two Scottish cases of William Durie v Andrew Main & Sons [1958] SC 48 (“Durie”), a decision of the Second Division of Scotland, and Shephard v Pearson Engineering Services (Dundee) Ltd [1980] SLT 197. In Durie, a dock labourer brought an action against his employers, a firm of stevedores, for damages in respect of injuries which he had received through the fall of a section of the handrail of a ship on which he was working. The section in question had been removed and propped against the fixed handrail without being lashed to it. It was held that when a stevedore goes on board a ship to discharge a cargo, he does not owe any general duty to his employees to inspect the ship and its equipment to see that they are in a safe condition. On the other hand, should some obvious danger come to the notice of the stevedore, he cannot just ignore it and he should take immediate precautions. Lord Walker observed in the course of his judgment at first instance (at p 51) that “stevedores have no concern to inspect things forming part of the structure or fittings or fastenings of the ship which are in the vicinity of the place where they have to work”. This opinion was echoed on appeal by Lord Justice Clerk (Thomson) who stated (p 52) that “when a stevedore goes on board a ship to discharge a cargo, he does not owe any general duty to his employees to inspect the ship and its equipment to see that they are in a safe condition. That is well established by cases like Peveril and Cremin, and it is clearly good sense, because the inspection of a ship is a highly technical matter”.

[16] The plaintiff relied on Marney v Scott [1899] 1 QB 986 (“Marney”) to argue that some attention ought to have been devoted to the condition of the ladders in Hatch No 5 and that the defendant was in breach of its duty because Rajendran did not carry out an inspection of the ladder before instructing the plaintiff and his co-workers to enter Hatch 5. In Marney, the defendant chartered a vessel which was at the time at sea and in ballast. The charterparty declared that she was in every way fit for the service, and provided that she should be so maintained by the owners. The defendant contracted with the stevedore who engaged the plaintiff (amongst others) to carry out the work of loading. In the course of his work, the plaintiff had to descend a ladder leading into the hold. It came adrift, and the plaintiff fell, sustaining injuries for which he sued the defendant. It was held that the defendant was liable to the plaintiff, since it was his duty under the circumstances to make some inspection of the vessel before allowing the stevedore and his men to go on board her, and since the slightest inspection would have revealed the defective state of the ladder.

[17] The decision in Marney is inconsistent with Cremin and the other cases cited in [15] above. It should be noted that Marney was decided more than 50 years before Cremin and was a first instance decision whilst Cremin and Durie were decided by higher courts, in the case of Cremin the final court of appeal in England. Its persuasiveness therefore, in relation to the extent of the duty which a stevedoring company owes its employees to inspect the vessels on which the employees are to carry out their stevedoring duties, is not great insofar as the opinion of the judge in that case differed from those expressed in Cremin and Durie.

[18] The rationale of Bigham J’s decision in Marney is found in the following passage of his judgment:

[19] I do not think that the statement of the law made by Bigham J can be reconciled with the judicial pronouncements in Durie and Cremin. Bigham J indicated that after the vessel had been out to sea, the stevedoring company had a duty to make some slight examination of the ladders into the hold. He said that even after noting that the business of a stevedore would be impossible if a duty was cast on him to do a thorough examination of each ship before allowing his workers on to the vessel. In my respectful opinion, however, the judge, in requiring the stevedore to nevertheless pay “some slight attention” to the ladders, did not overcome the difficulty that this requirement would place on the shoulders of the stevedoring company. This is because the formulation “slight attention” is vague and does not really indicate what degree of care has to be paid to the fitness of the ship’s appliances before the stevedore can be held to have discharged his duty. It would be noted that in Cremin, Lord Wright held that in the absence of “special circumstances of suspicion” there would be no duty of inspection placed on the stevedore. A coastal voyage which is a regular occurrence can never qualify as giving rise to special circumstances of suspicion and thus, in my view, had Marney been decided after Cremin, the outcome may very well have been different.

[20] The condition of the ladder in Marney was so bad that the danger should have been obvious and therefore, despite his disclaimer, it was probably the fact that the defective state of the ladder was patent that influenced Bigham J to impose a liability on the defendant there. The factual situation in Marney serves to distinguish it from Cremin. The patent defectiveness of the ladder would have been an example of the situation mentioned in Cremin, where the judges indicated that in a situation where there are apparent indications that the structure is defective, a duty is imposed on the master stevedore to ensure the structure is safe before allowing work to start. In the present case the situation was different. There was no obvious defect in the condition of the ladder. The plaintiff and his co-workers in Hatch 5 had entered the hatch in the morning using the ladder and had exited the hatch the same way for lunch. On both occasions nothing untoward had occurred. The dislodging of the ladder only took place after the plaintiff returned to work in the afternoon. It was clear to me from the evidence therefore that even if there was a duty on Mr Rajendran to pay some slight attention to the ladder in Hatch 5 by giving it a visual inspection, had he done so, no danger would have been discernible.

[21] The plaintiff raised the case of McDermid v Nash Dredging & Reclaimation Co Ltd [1987] 1 A.C. 906 (“McDermid”) to argue that the cases which held that there was no duty on the master stevedore to check third party premises are no longer valid law. In McDermid, the plaintiff was employed by the defendants as a deckhand. In the course of his employment he worked on board a tug owned by a Dutch company and under the control of a captain employed by them. The plaintiff’s work included untying ropes mooring the tug fore and aft to a dredger. The system used by the captain was that when the plaintiff had untied the ropes and it was safe for the captain to move the tug, the plaintiff would give a double knock with his hand on the wheelhouse. At the time in question the plaintiff had untied the aft rope but was still in the course of untying the forward rope when the captain, without waiting for the plaintiff's signal, put the engine of the tug hard astern. As a result, the rope snaked round the plaintiff’s leg causing him serious injury. The House of Lords held that the defendants owed the plaintiff a duty of care to devise a safe system of work for him and to see that that system was operated. The defendants’ duty of care was non-delegable and they were personally liable for its performance. Although they had delegated the performance of their duty of care to the captain, they could not thereby avoid their own liability to the plaintiff. McDermid therefore was a case on safe system of work and not a case on safe working premises.

[22] The plaintiff in the present case used McDermid to argue that the defendant cannot delegate its duty of care to the plaintiff to the shipowner and would therefore be liable for the faulty ladder. Indeed, an employer’s duty of care is non-delegable. McDermid has been approved locally by the Court of Appeal in The Lotus M (No 2) [1998] 2 SLR 145. However, quite apart from the fact that liability was found on a different basis, the facts in McDermid are distinguishable from those in the present case. There, the plaintiff, defendant and the Dutch company who employed the captain were all working together to perform the contract. The Dutch company was not a passive party to the task being performed by the defendant and plaintiff but a participant in the system of work. The responsibility of the defendant employers for the system instituted by the captain was therefore more direct. This is unlike the present case where all that the shipowners did was to present the ship for the cargo operations and the defendant worked for the owners rather than with the owners. There was no delegation of any sort by the defendant here to the shipowners. This reading of McDermid is consistent with that taken by the Court of Appeal in Cook v Square D Ltd [1992] ICR 262 which held that Cremin was not inconsistent with McDermid and is still good law.

[23] Having considered the abovementioned cases, I came to the conclusion that the defendant did not have a duty to inspect the premises or the hatch before allowing the workers to perform the task of loading and unloading unless there was some ground of suspicion. On the facts, there was no evidence of any circumstance which would have given rise to any ground of suspicion prior to the commencement of work by the plaintiff and his co-workers. It would be too onerous to impose a general duty on stevedoring companies to inspect the vessels they work on before allowing stevedoring operations to commence even if there is nothing special in the circumstances to lead the company to suspect that the vessel or its fixtures might pose a danger to the stevedores. Accordingly, the claim of the plaintiff on this ground failed.

[24] The plaintiff alleged that the defendant had failed to comply with the statutory liability imposed on it by the Factories Act (Cap 104, 1998 Rev. Ed) (the “Act”). Counsel argued that the defendant failed to ensure the safety of the place of work and means of access as required under s33 of the Act. She added that by virtue of s 47A(3) of the Act read together with the Twelfth Schedule, the defendants ought to have taken appropriate measures to reduce where possible or eliminate the hazard or inform all persons working at the workplace of the means to reduce where possible or eliminate the hazard which could cause the plaintiff to fall from a height of 3 metres and above. The relevant sections of the Act are reproduced below:

[25] The Act only regulates factories as defined in the Act. Therefore, Hatch 5 had to come under the definition of a factory before the statutory obligations discussed above would have applied to the defendant. The plaintiff argued that Hatch 5 would be classified as a factory because it would fall under s 6(2)(f), s 6(2)(r), s 6(5) or s 74(3) of the Act.

[26] The general definition of ‘factory’ appears in s 6(1) of the Act. A ship’s hold does not fall within the definition. Subsection (2) provides that whether or not premises are factories by reason of the general definition, a number of specified instances are included in the term ‘factories’. The specified instances it was submitted applied here were s 6(2)(f) and s 6(2)(r) which read:

[27] In my opinion, Hatch 5 did not come under either s 6(2)(f) or s6(2)(r). Section 6(2)(f) refers to premises in which there is construction, reconstruction or repair. The hatch was not being used for such a purpose. The hatch also did not come under s 6(2)(r) which was introduced in the year 2000. The provision was meant to cover premises such as warehouses and open storage areas where mechanical devices were in use in relation to the storing of articles as a business. The hatch would not fall under this provision as the business of the vessel was the transporting of articles and the vessel was not intended to be, nor was it actually being used as, a warehouse or storage area. In the parliamentary debates for the amendment to the Act to include this provision, the Minister for Manpower made the following comments which indicate that vessels are not the kind of premises which the legislation was intended to cover:

[28] The plaintiff then sought to rely on s6(4). The section reads as follows:

In my opinion, this provision is meant to cater to situations where the people working at the workplace are not employees. The provision helps to ensure that the obligations under the Act would still be applicable to the owner or occupier. The provision deems a workplace which would be a factory if the people working there were employees in a factory. Therefore, for this provision to apply, the hatch must already be considered a factory by any of the other provisions of the Act.

[29] The plaintiff then tried to argue that by the application of s 74(3) of the Act, the vessel including the hatch, was to be treated as if it was a factory where the defendant was carrying out the process of loading and unloading work. The relevant section reads:

[30] However, it is important to study the context of s74 in order to understand s 74(3). Section 74(1) of the Act makes most of the provisions of the Factories Act applicable to docks, wharfs or quays by treating the dock, wharf or quay as a factory. The relevant sections are:

Then, s 74(3) goes on to provide that the process of loading and unloading in the dock etc would be deemed to be a process carried on in a factory. Here, I was concerned with the hatch and not the dock. Therefore, s74 is not relevant. However, even if I am wrong and s74 is relevant, the ladder would not fall under the Factories Act because of ss 74(4) and 74(5) which state:

[31] Since the obligations imposed by the Factories Act were not applicable the claim on this ground also failed.

[32] The plaintiff alleged that the defendant was the occupier of the vessel. The defendant had invited the plaintiff to work in the vessel for the purpose of carrying out the cargo operations and should therefore be liable to the plaintiff for the injuries that he had suffered.

[33] In Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd [1997] 3 SLR 677, the Court of Appeal held that the law in respect of an occupier’s liability in Singapore is strictly derived from the common law. The Court of Appeal approved Lord Denning’s statement of the law in Wheat v E Lacon and Co Ltd [1966] AC 552 (“Wheat”):

[34] In Wheat, Lord Denning observed that:

[35] Usually, a person who has control over the premises has the power of permitting or prohibiting the entry of other person. Here, the defendant did not have control over who entered or left the vessel. There may, however, as Lord Denning stated, be cases where a person can have control over premises even if he does not decide who has entry to the premises. To make such a person an occupier it needs to be shown that he has some other form of control of the premises. This requirement was not satisfied in the present case. There was no evidence of any form of control that the defendant had over the vessel. The occupation of the vessel by the defendant was merely transient and for the specific purpose of loading and unloading. At all times, the vessel was under the control of her master and crew and, indeed, even the stevedoring operations would have been subject to the authority of the vessel’s officers. I did not see how the defendant could have had any control over the vessel. Whatever control the defendant had was only over the process of loading and unloading of the goods in the hatch. The defendant had no control over the vessel and could not be said to be the occupier of the vessel. Hence the claim under occupier’s liability also failed.