1 Cur Adv Vult

2 (delivering the judgment of the court): These two appeals arise out of a High Court action in suit no 932 of 1975 commenced by Wee Peng Whatt, the first respondent in Civil Appeal No 43 of 1977 and the respondent in Civil Appeal No 46 of 1977, against Singapore Transport Supply Service Pte Ltd, the appellant in Civil Appeal No 43 of 1977, Public Crane Co, the second respondent in Civil Appeal No 43 of 1977 and the appellant in Civil Appeal No 46 of 1977, and Lim Ah Soon, the third respondent in Civil Appeal No 43 of 1977. With the consent of all the parties, these two appeals were heard together and we propose to give one judgment covering these two appeals.

3 In this judgment we will refer to Wee Peng Whatt as the plaintiff, Singapore Transport Supply Service Pte Ltd, as the first defendants, Public Crane Co as the second defendants and Lim Ah Soon as the third defendant.

4 On 19 August 1972 the plaintiff and four co-employees of the first defendants were engaged in unloading cartons of milk from lorries on to a tongkang. The unloading was carried out by means of a mobile crane no SGC 3797 which was hired by the first defendants, who had a contract to unload these cartons on to a tongkang, from the second defendants. The mobile crane was owned by the third defendant. It had a crew of two, the driver and an attendant. The system used can best be described in the words of the plaintiff who said:

5 During the course of the unloading, when the plaintiff was picking up a carton from a pallet resting in the hold of the tongkang, he was struck by another fully loaded pallet which was being lowered on to the tongkang. He sustained severe injuries for which the trial judge awarded him damages assessed at $177,305.

6 In his grounds of judgment the trial judge said:

7 The trial judge went on to say:

8 The trial judge also found the first defendants and the second defendants were equally to blame and gave judgment for the plaintiff against them for the amount awarded and made an order that amount and the costs of the plaintiff be borne equally between them.

9 The trial judge`s finding that the first defendants were liable for the plaintiff`s injuries is based, partly, on the undisputed evidence that the plaintiff was on that day engaged in a repetitive and dangerous operation of unloading goods from quayside lorries onto the hold of a tongkang and that no instructions were given to the workers by the first defendants and, partly, on his finding that there was no adequate supervision on that day. The trial judge came to the conclusion that no system of work, having in mind the safety of their employees, was considered at all by the first defendants.

10 It is contended on behalf of the first defendants in their appeal that the method employed on that day as described by the plaintiff to unload the cartons of milk from quayside lorries into a tongkang was not basically an unsafe system so long as the crane attendant, who acted as signalman, and the crane driver took due care and that there was no necessity for any supervision during the operation. It is to be observed that it is common ground that the second defendants were independent contractors and that the attendant and the crane driver were not under the control of the first defendants. Another observation to be borne in mind is that in an operation of this kind, as testified by the operations manager of the first defendants, the risk to the workers working in the hold of the tongkang is from a load falling on them when it is being lowered on to the tongkang by means of the crane.

11 The law is well settled. An employer is under a duty to take reasonable care for the safety of his workmen. Where the task is such as to call for the laying down of a system or mode of working in the interests of safety it is the employer`s duty to use reasonable skill and care to provide a proper and safe system of work. The test is that of what is reasonable and proper to be done for the safety of the workman in the circumstances of the particular case. (See Lord MacDermott in Winter v Cardiff RDC [1950] 1 All ER 819 at p 823.) In our judgment, in the circumstances of the present case, we can see no ground for disagreeing with the trial judge`s decision that the first defendants had failed in their duty towards the plaintiff.

12 We turn now to deal with the appeal of the second defendants. As we have said the mobile crane no SGC 3797 was owned by the third defendant. The crane was operated by a driver and an attendant who acted as signalman to the driver. On 19 August 1972 the crane, with its driver and attendant, was one of two mobile cranes hired by the first defendants, who had contracted to load goods on to a tongkang at Robinson Quay, from the second defendants, who owned mobile cranes for the purpose of letting them out on hire. The first defendants had on previous occasions hired mobile cranes from the second defendants.

13 The evidence of the plaintiff, which was not disputed at the trial, was that he was picking up a carton from a pallet resting in the hold of the tongkang when he was struck by another fully loaded pallet which was being lowered on to the tongkang. The evidence of the crane driver, whom the trial judge found to be an entirely satisfactory witness, was that he lowered the pallet which struck the plaintiff when the crane attendant gave him the signal to lower it. The attendant was not called to give evidence at the trial. On the evidence the trial judge found that the accident to the plaintiff was caused through the negligence of the crane driver and/or the signalman and not contributed to by the plaintiff in any way.

14 It is contended on behalf of the second defendants that there was no evidence to support the trial judge`s finding that the crane driver was negligent and that the trial judge, having found the crane driver to be an entirely satisfactory witness, ought to have found on the crane driver`s evidence that the crane driver was not guilty of any negligence in lowering the loaded pallet in response to the signal of the crane attendant. We accept this contention.

15 It is also contended on behalf of the second defendants that the trial judge erred in finding that the crane attendant was negligent as there was no evidence to support that finding. In our judgment, it must follow, on the trial judge`s acceptance of the crane driver`s evidence that he lowered the loaded pallet on a signal from his attendant, that the crane attendant was negligent in giving the signal to lower when the plaintiff was engaged in removing several cartons of milk on a pallet resting in the hold of the tongkang.

16 It is next contended that even though the crane driver and/or the attendant were negligent the second defendants were not vicariously liable for their negligence because the trial judge should have found on the evidence that they were servants of the third defendant, who owned the crane, and not servants of the second defendants. As we have come to the conclusion that the crane driver was not negligent the question of vicarious liability in respect of the crane driver does not arise in the present case. With regard to the crane attendant there is a clear admission by Toh Guan Leng, the then manager and partner of the second defendant firm, that the crane attendant was in the employ of the second defendants at the date of the accident. It is urged on behalf of the second defendants that the trial judge should have found on the evidence that Toh Guan Leng was the agent of the third defendant and in his capacity as such agent had employed the crane attendant so as to constitute the third defendant the master of the crane attendant at all material times. It is to be observed that Toh Guan Leng was a witness called on behalf of the second defendants and in answer to a question by the court and also during re-examination he unequivocally said that the crane attendant at the date of the accident was an employee of the second defendants.

17 In our judgment the trial judge was entitled to rely on the admission of Toh Guan Leng that the crane attendant was at the material date the employee of the second defendants and not of the third defendant. In any event, we are of the opinion that on all the evidence before the trial judge the crane attendant was bound to carry out his duties at the material date, in the words of Lord Esher MR in Donovan v Laing, Wharton, and Down Construction Syndicate Ltd [1893] 1 QB 629 at p 631, `according to the orders and under the absolute control of` the second defendants. It follows, in our opinion, that the second defendants must be vicariously liable for the negligence of the crane attendant which resulted in the injuries sustained by the plaintiff.

18 Accordingly, both appeals must be dismissed with costs.

19 Appeals dismissed