Court Considers Liability of Insured

Facts
First Instance Decision
Appeal Decision

The case of Amus Bin Pangkong v Jurong Shipyard Limited arose as an appeal against the decision of the district court that had found in favour of the respondents. It should be of interest to 'all-risk' and public liability insurers, as well as employers and occupiers.

Facts

Amus Bin Pangkong (the appellant) was employed by Jurong Clavon Pte Ltd (the second respondent) and Jurong Shipyard Ltd (the first respondent). The two respondents were in the business of ship repair. The appellant was a general worker.

On February 12 1997 the appellant was instructed by the second respondent to carry out work from a platform in the centre port tank of a vessel. The platform was about 9.5 metres from the bottom of the tank and had handrails positioned about one metre from the platform. There were no footholds or toeholds on the platform and the tank was very dark.

In the course of his work, the appellant accidentally fell to the bottom of the tank and sustained severe injuries, resulting in his inability to work. He was not wearing a safety belt when found by a co-worker. The appellant claimed against the respondents for personal injuries sustained and breach of statutory duty as occupiers under the Factories Act and Regulations.

First Instance Decision

The lower court dismissed the appellant's claims for the following reasons:

• the evidence suggested that the appellant had received safety training (despite his claims to the contrary);
  
  
• the appellant's witnesses were held to have provided biased evidence that related to the lack of safety rules and regulations on the respondent's premises; and
  
  
• the evidence given by the loss adjuster and surveyor that they accepted the appellant's statement to the effect that he was wearing a safety belt, but had not anchored it correctly, as he was moving about on the platform (despite claims that the signature on the statement was not that of the appellant).

The district court judge found that there was no breach of duty on the part of the second respondent as the appellant was provided with a safety belt on the day of the accident. While the second respondent had a duty to provide a safe system and place of work, it was deemed impossible to ensure that the workers continue to use their safety belts because of the darkness in the tank.

The first respondent was not held liable as occupiers, as it was held that it did not have a sufficient degree of control over the premises in question. The test for occupier liability, as held in Industrial Commercial Bank v Tan Swa Eng [1995] 2 SLR 716 was applied. It requires the following conditions be met:

• the occupier actually knew or ought to have known of the danger that caused the injury;
  
  
• the danger was unusual to the invitee, having regard to the nature of the premises and the invitee's knowlege;
  
  
• the danger was unknown to the invitee and the significance was not appreciated by the latter; and
  
  
• the occupier had failed to use reasonable care to prevent damage from occuring, whether by notice, lighting, guarding or otherwise.

As there was no mention of a lack of footholds and handholds in the investigations report, there was no corresponding breach of the Factories Act and Regulations.

Appeal Decision

The decision of the lower court was overturned. The Court of Appeal held that the claim that the appellant had a safety belt was incorrect. There was excessive reliance on the apellant's statement to the loss adjusters and surveyor, which had been recorded three months after the accident and was recorded in English, although explained in Malay. The witness to the incident was not called by the first respondent.

The court did not consider the adjuster an independent witness. He was engaged by the first respondent and, as such, obliged to secure a favourable statement for the respondent.

Evidence by a co-worker of the appellant to the effect that no safety equipment was provided at the time was ignored by the lower court on the grounds that the evidence tendered was inconsistent. However, the appeal court found that there was selective treatment of the various witnesses by the lower court, and the evidence was subsequently accepted.

Breach of duty to provide safety belt?
On the issue of whether the second respondent was in breach of their duty to provide the appellant with a safety belt, the employer is under a duty to provide adequate equipment to their workers and would be liable if an accident is caused though the absence of some necessary item. A safety belt was undeniably an essential piece of equipment and there was insufficient evidence supporting the contention that belts were provided.

Degree of supervision
On the issue of the degree of supervision required, the lower court stated that there was an obligation to remind the workers to use the safety belts at the commencement of their work. The Court of Appeal, however, felt that it was incorrect to confine the duty purely to the point of commencement. The width of the employer's duty was outlined by the Court of Appeal in Parno v SC Marine Pte Ltd [1999] 4 SLR 579 as follows:

"The employer is responsible for the general organization of the factory at undertaking; in short, he decides the broad scheme under which the premises, plant and men are put to work. This organization of 'system' includes such matters as coordination of different departments and activities; the layout of plant and appliance for special tasks; the method of using particular machines or carrying out particular processes; the instruction of apprentices and inexperienced workers; and the general conditions of work."

It therefore follows that the second respondent was under an obligation to provide a safer system of work and to ensure that such a system was implemented. It was insufficient to merely provide the workers with safety belts and other safety equipment. The workers had to be supervised in order to ensure that the safety belts were correctly used.

Furthermore, in view of the fact that the appellant and his co-workers would be required to move along platforms high above the bottom of the tank, in the dark, the imposition of a duty of care on the second respondent to ensure that the workers were constantly checked and supervised on the manner in which the safety equipment was used was entirely justified.

The second respondent was in breach of its duty to ensure that the appellant and his co-workers were properly supervised and this breach was the proximate cause of the appellant's injuries.

Occcupiers?
On the issue of whether the respondents were 'occupiers' of the interior of the tank in the vessel, the case of Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd [1997] 3 SLR 677 was relied on. The Court of Appeal in this case adopted the following passages from the judgment of Lord Denning in Wheat v E Lacon and Co Ltd [1966] AC 522:

"[W]herever a person has a sufficient degree of control over premises that he ought to realize that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an occupier is under a duty to his visitor: and the occupier is under a duty to his visitor to use reasonable care. In order to be an occupier it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with other. Two or more may be occupiers".

"[W]here an owner employed a independent contractor to do work on premises or a structure, the owner was usually still regarded as sufficiently in control of the place as to be under a duty towards all those who might lawfully come there.'

It follows therefore that that the first respondent was the occupier of the shipyard and the interior of the vessel. It was therefore clear that it had some measure of control and influence over the operations that took place in the tank. Although they may have subcontracted out the actual work to the second respondent, the fact that they may not have 'immediate supervision and control' over the appellant did not mean that they ceased to be occupiers at law. The first instance judge's finding was overturned.

Was the first respondent then liable to the appellant? The duty of an occupier to an invitee would be to prevent damage or injury from any unusual dangers on the premises he knew, or ought to know, about and which the invitee did not know about (as described above in the case of Industrial Commercial Bank v Tan Swa Eng).

The Court of Appeal agreed with the lower court that the first respondent was not liable to the appellant as occupiers. This was on the grounds that the danger in this case was not unusual to the appellant, having regard to the nature of the premises and the appellant's knowledge. The risk of falling off a high platform is inherent in the task itself while moving along a platform positioned high above the bottom of a tank, in dark conditions.

Factories Act
On the issue of breach of Section 33 of the Factories Act, the first instance court found that there was no breach. Again according to the case of Awang Bin Dollah v Shun Shing Construction & Engineering Co Ltd, it was acknowledged that the duty under Section 33(3) lies not with the person injured but with the person responsible for maintaining the safety of the workplace.

Support for this view was derived from the House of Lords' decision of Nimmo v Alexander Cowan and Sons Ltd [1968] AC 107, in which Lord Guest stated:

'The whole object of the Factories Act is to reinforce the common law obligation of the employer to take care for the safety of his workmen ... I cannot believe that Parliament intended to impose on the injured workmen ... the obligation to aver with the necessary particularity the manner in which the employer should have employed reasonably practicable means to make and keep the place safe for him ... it is the duty of the employer to make the place safe so far as is reasonably practicable."

The respondent did not adduce sufficient evidence to show that they had taken steps, so far as was reasonably practicable, to ensure that the platform inside the tank of the vessel was kept safe for workers. There was no evidence to show that the workers who were required to perform the work were adequately supervised on the use of safety equipment, nor was there cogent evidence that the workers were given safety equipment on the day of the accident.

Accordingly, there was a breach of the duty under Section 33(3) of the act and this breach of duty was the cause of the appellant's injuries.

Contributory negligence
Lastly, on the issue of contributory negligence, the court found that there was no evidence to support the suggestion that the appellant was not standing firmly on the platform. Even if he was not standing firmly, the appellant would not have fallen if he was wearing a safety belt. Furthermore, the appellant's awareness of the importance of the safety belt cannot be interpreted to mean that he fully appreciated the significance of the risks involved in not wearing one. As such, the evidence did not indicate that the appellant himself had been contributorily negligent.

For further information on this topic please contact Balu Rao at B Rao & KS Rajah by telephone (+65 535 2188) or by fax (+65 534 3972) or by e-mail ([email protected]).