ECK Engineering & Construction v TTJ Design and Engineering Pte Ltd

• Jurisdiction: Singapore
• Judge: Lorraine Ho
• Judgment Date: 30 June 2016
• Neutral Citation: [2016] SGDC 165
• Court: District Court (Singapore)
• Docket Number: DC Suit No 1467 of 2014
• Year: 2016
• Published date: 02 July 2016
• Hearing Date: 07 March 2016
• Plaintiff Counsel: Ranjit Singh (M/s Francis Khoo & Lim)
• Defendant Counsel: Boo Moh Cheh (M/s Kurup & Boo)
• Subject Matter: Contract,Contractual Terms,Conditions,Equity,Estoppel by conduct,Previous course of dealings,Tort,Negligence,Duty of care
• Citation: [2016] SGDC 165

District Judge Lorraine Ho: Introduction

The Plaintiff’s claim against the Defendant in this matter is for the sum of $83,849.07, being medical expenses incurred by the Plaintiff for one of its employees, Mr Mohammad Mainal Miah Md Dudu (“Mr Mainal”), as a result of serious injuries sustained by him whilst working for the Defendant at the construction site located at Gardens by the Bay (“the Project”) on or about 17 September 2011 (“the Accident”).

The total amount of medical expenses incurred by the Plaintiff for Mr Mainal’s injuries was originally $108,849.07. However, the Project’s Work Injury Compensation Act (“WICA”) insurer, MSIG Insurance (Singapore) Pte Ltd, had paid $25,000.00 to Expand Construction Pte Ltd on behalf of the Plaintiff on 9 May 2012. This was pursuant to the amount capped under the Third Schedule of WICA per employee at that time. The Plaintiff therefore sought to claim the balance amount incurred by them from the Defendant.

I heard the trial on 7 March 2016. I now set out the reasons for my decision.

Background

The Plaintiff is a limited exempt private company incorporated in Singapore and carrying on the business of building construction, including major upgrading works and process plant engineering services.

The Defendant is also a limited exempt private company incorporated in Singapore and carrying on the business of general contractors, including structural works.

Since on or about 28 February 2008, the Defendant had engaged the Plaintiff as its labour subcontractor for its construction projects. Whenever there was an engagement, the Plaintiff would issue a work order setting out its terms and conditions. The Defendant would then sign to accept the terms for hiring the Plaintiff’s workers.

This practice continued until 2010. In July 2010, the Defendant wanted to engage the Plaintiff as its labour subcontractor for the Project. The Gardens by the Bay Project was also known as the “Super Tree” project. The Plaintiff, as per its usual practice issued a work order to the Defendant on 23 July 2011. However, unlike in the past, the Defendant did not sign to accept the terms of the work order. Instead, the Defendant sent a “cross-deployment of construction worker” letter on 30 July 2010 setting out the terms and conditions for hiring the Plaintiff’s workers. The cross-deployment letter was countersigned and accepted by the Plaintiff’s general manager, Mr Ranjit Singh. As part of the terms of the cross-deployment letter, a copy of the certificate of insurance of the Plaintiff’s WICA insurance policy issued by AXA Insurance Singapore Pte Ltd was also forwarded to the Defendant.

The same procedure happened in 2 subsequent agreements between the parties for the Project. The cross-deployment letters dated 21 September 2010 and 15 October 2010 were issued by the Defendant and countersigned by the Plaintiff after the Plaintiff’s work orders dated 20 September 2010 and 12 October 2010 were issued by the Plaintiff respectively. The certificates of insurance for the relevant policy periods were similarly forwarded by the Plaintiff to the Defendant.

On 17 September 2011, Mr Mainal was working at the Project site near to a stack of scaffold pipes which was above 850mm in height. According to the notice of accident submitted to the Ministry of Manpower (“MOM”), the scaffold pipes were arranged and tied up together for removal from the site by other workers. Suddenly, the stack became loose and collapsed on Mr Mainal. He suffered serious back injuries and had to be hospitalised for an extended period of time.

The Plaintiff’s Case

The Plaintiff was of the position that the agreement between the parties to hire the Plaintiff’s workers was contained in or evidenced by both the unsigned work order issued by the Plaintiff and the cross-deployment letter issued by the Defendant and countersigned by the Plaintiff. Therefore, it was an express term in the agreement that the Defendant would pay for all medical and associated expenses incurred as a result of any injuries suffered by a worker while working for the Defendant at its worksite. Since it was undisputed that Mr Mainal was injured as a result of working at the Defendant’s worksite at the material time, the Defendant was therefore contractually liable to pay the medical expenses incurred by the Plaintiff on behalf of Mr Mainal.

The Plaintiff further pleaded that there were previous course of dealings between the parties, where the Defendant had paid out medical expenses for 3 of Plaintiff’s injured workers while they were working for the Defendant in the past, specifically in 2009. The pay-outs were made pursuant to the same terms and conditions found in the previous work orders issued for other projects. As such, the Defendant had by previous conduct agreed to pay for the medical expenses of the Plaintiff’s injured workers.

In any event, the Plaintiff argued that the Defendant owed the Plaintiff a duty of care to ensure that the Plaintiff’s workers were not exposed to the risk of being injured while working for the Defendant. The Defendant was therefore in breach of its duty to the Plaintiff in failing to provide a safe working environment for Mr Mainal.

The Defendant’s Case

The Defendant disputed the Plaintiff’s position and argued that the only agreement that was valid and binding between the parties on the date of Mr Mainal’s accident at the Project site was the cross-deployment letter dated 15 October 2010, which was signed and acknowledged by both parties. Pursuant to the terms and conditions of the said agreement, the Plaintiff had not only agreed to be responsible for the well-being and maintenance of its own workers, it also agreed to be liable to pay for its workers’ salaries, levies and provide for workmen’s insurance coverage. The word “maintenance” included the provision of medical treatment and this was in any event a non-delegable duty of the Plaintiff as an employer of Mr Mainal.

Further, the Defendant averred that the Plaintiff had a duty of care to take reasonable care of the safety of its own employees like Mr Manial. This was so whether or not the Plaintiff had sent Mr Manial to work at a construction site controlled by the Defendant. The Defendant did not owe the Plaintiff a duty of care as such.

Issues to be determined

The issues before the Court are as follows: What was the contractual agreement agreed upon by the parties; Is the Defendant contractually liable to indemnify the Plaintiff for the medical expenses of Mr Manial as claimed; Did the Defendant owe the Plaintiff a duty of care to provide a safe working environment for the Plaintiff’s employees while they were working for the Defendant at its worksites; and If so, did the Defendant breach this duty of care imposed on it in the circumstances.

Decision What was the contractual agreement agreed upon by the parties

Prior to the accident sustained by Mr Mainal on 17 September 2011, the latest subcontract work order agreement for the Project issued by the Plaintiff to the Defendant was dated 12 October 2010 (“12 October Work Order”). However, the work order was not signed and acknowledged by either the Plaintiff or the Defendant. It was undisputed at the trial by Mr Ranjit Singh (“Ranjit”), who was a director and general manager of the Plaintiff at the material time, that both the Plaintiff and the Defendant did not sign on the 12 October Work Order. Q: But your evidence was sent by e-mail. That’s all, okay? Thanks. Mr Singh, therefore, page 69 was not signed by you. A: It was….not signed by me.

…

Q: …On 12 October, the Defendant did not sign on the acceptance page on page 69, correct? A: They did not sign the letter on page 69, agree.

Instead, the Defendant issued a cross-deployment letter of agreement on 15 October 2010 (“15 October Letter”) to the Plaintiff setting out the terms and conditions between the parties for the provision of the Plaintiff’s workers to work at the Defendant’s Project site. During cross-examination, Mr Ranjit did not deny that the Plaintiff had signed the 15 October Letter. Q: On page 70 and 71, the Plaintiff signed. A: Agreed

Mr Ranjit sought to explain why the 12 October Work Order was unsigned during cross-examination: Q: Mr Singh, turn to page 56 to 58 of the same bundle. On page 58, was there a signature of Defendants of your offer dated 20th July 2010… A: There is no signature. Q: So no acceptance? A: There is acceptance. Can I …elaborate… Q: Okay. Say it. A: Alright. So your client had at that period, changed the system and said that due to their, uh…they were supposed to be public listed and they needed this second 2-page flimsy contract to be signed and they can’t sign ours, but basically they’re accepting our workers. So the workers, as I repeat again, were throughout the whole period supplied to the client. We have evidence of that in time cards and so they…they put this as a formality to sign this, because they’re going public listed, they have to…used the word “cross-deployment”. So the project managers had used my workers throughout the period…if there is no contract and why would they pay for such workers during the period…when there is no contract? So my workers were paid throughout the period when they worked.

Mr Ranjit further sought to explain that even though the very first Work Order dated 23 July 2010 for the Project was unsigned, workers were present at the Project site between 23 July and 30 July 2010 before the cross deployment letter dated 30 July 2010 was signed by both parties. These workers were subsequently paid for the work done during the abovementioned period. However, Mr Ranjit, was unable to produce any documentary proof, including any time cards, invoices or payment vouchers, to prove his assertion.

The Defendant submitted that the purported reason given by the Plaintiff as to...