The Court of Appeal upheld the dismissal of a personal injury claim filed by Dr Nabil Argoubi (appellant/plaintiff), an international consultant marine engineer, against Interhill Industries Sdn Bhd (respondent/defendant), following a fall from a vessel while it was in dry dock at a third-party shipyard.
The appeal was heard before Chief Justice Dato Seri Paduka Steven Chong, sitting with Justices Michael Lunn, and Sir Peter Gross on October 29, 2024, with a judgement issued on January 7.
The lawyer representing the appellant was Lieutenant Colonel (Rtd) Harif bin Ibrahim of his own firm, while Eric Siow and Jonathan Cheok of J Cheok Eric represented the respondent.
Dr Argoubi claimed damages for injuries sustained on February 11, 2017 while inspecting the Seri Anna vessel, owned by the respondent, at Preston Shipyard in Labuan. However, the court found that the respondent did not owe a duty of care to the appellant, as he was neither an employee nor an independent contractor of the respondent.
The trial judge, in dismissing the claim in October 2023, determined that Dr Argoubi was not employed by the respondent, nor did he have a contractual engagement for the inspection. Although Dr Argoubi presented documents such as a ‘Business Terms’ agreement and an invoice for consultation fees, these were not sufficient to establish a formal employment or independent contractor relationship.
The appellant was also found to be engaging in the inspection in hopes of securing future consultancy work with the respondent, rather than as part of an ongoing or established engagement. The court emphasised that the vessel was under the care of the third-party shipyard, which had established safety protocols.
Dr Argoubi, as an experienced consultant, was expected to recognise and mitigate safety risks. The respondent’s role in facilitating the appellant’s access to the shipyard was deemed insufficient to impose a duty of care.
Dr Argoubi argued, in his appeal, that the trial judge had erred in law by failing to consider his position as an employee, independent contractor, or consultant, and by not finding negligence on the part of the respondent. However, the Court of Appeal affirmed the lower court’s ruling, noting that the appellant’s actions were not in line with the expectations of a formal employment or contractual relationship.
The court also highlighted that the respondent was entitled to rely on the established safety standards of Preston Shipyard.
The appellant’s failure to submit a report as part of his supposed engagement further weakened his claim.
The appeal was dismissed, and Dr Argoubi was ordered to pay both the costs of the appeal and the costs awarded in the lower court. – Fadley Faisal
