Antonysamy Savarimuthu v SEF Construction Pte Ltd

• Jurisdiction: Singapore
• Judge: David Lim
• Judgment Date: 27 February 2014
• Neutral Citation: [2014] SGDC 76
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 1380/2012, District Court Appeal No. 1 of 2014
• Year: 2014
• Published date: 17 July 2014
• Hearing Date: 11 July 2013,23 May 2013,03 January 2014,12 July 2013
• Plaintiff Counsel: Ms Belinder Kaur Nijar (M/s Hoh Law Corporation)
• Defendant Counsel: Mr Mahendra Prasad Rai (M/s Cooma & Rai)
• Citation: [2014] SGDC 76

District Judge David Lim: The case

In this case, the Plaintiff (an Indian national) sued his previous employers (who were the main contractors and occupier of a worksite at 152 Ubi Avenue 4) for negligence and claimed against them damages (for pain and suffering, loss of amenities, loss of future earnings and future earning capacity, and costs of future medical and transport expenses) arising from an injury that was suffered by him as a result of an alleged accident which occurred on 11 July 2011 in the course of his carrying out his work for the Defendants at their worksite.

The Plaintiff’s pleaded case was as follows: at the material time, he was working for the Defendants as a construction worker; on 11 July 2011, he was instructed to throw rubbish from level 5 down to level 4 of the building at the worksite through a void next to the lift; there was a guardrail barricading the void at all times; at about 1125 am on that day, as he was throwing a bag of rubbish over the guardrail, he came into contact with the guardrail and the guardrail collapsed and he fell through the void down to level 4; as a result of the fall, he suffered from a “displaced extra articular calcaneal fracture” (i.e. - a fracture of his right heel) with resultant disabilities in jumping, carrying heavy loads and doing heavy manual work, but apart from this, there were no other injuries to any other part of his body.

Defendant’s submission of no case to answer

At the trial on liability, which took place on 23 May 2013 (1st tranche) and 11-12 July 2013 (2nd tranche), the Court heard the evidence of the Plaintiff and his witness, PW2 Mr Raman Pandi Selvam (“Mr Pandi Selvam”).

At the close of the Plaintiff’s case, Counsel for the Defendants Mr Rai chose not to call any witnesses for the Defendants but instead (relying on 3 cases¹) submitted that the Defendants had no case to answer on the ground that the Plaintiff’s evidence was so unsatisfactory or unreliable that the burden of proving his case had not been discharged. Having taken the time to carefully consider the evidence adduced by the Plaintiff and the written submissions of both Mr Rai and Counsel for the Plaintiff Ms Belinder Kaur, I found I was in total agreement with the submissions of Mr Rai that the evidence adduced by the Plaintiff was so unreliable that the Plaintiff could not be said to have discharged the burden of proving his case. The reasons for my finding are set out below.

The Plaintiff’s own evidence

In his AEIC (affirmed on 20 October 2012), the Plaintiff’s account of the accident was set out in paragraphs 5 to 8 as follows: “5 On 11th July 2011 (“the material day”), I was working at 152 Ubi Avenue 4 (“the premises”). I was instructed to clear rubbish at level 5 by throwing it down to level 4 via a void next to the lift. There was a guardrail (“the guardrail”) barricading the void at all times. My co-worker, Satish Kumar was also instructed to work with me. 6 We spent some time sweeping and collecting the rubbish before we could throw it down to level 4. At about 1125 am, I started to throw the rubbish down. As I was throwing a bag of rubbish over the guardrail, I touched the guardrail and without warning it collapsed. As a result I fell down to level 4 and injured myself (“the accident”). 7 The guardrail was not secured at all as it collapsed at the mere touch. The scaffold frame was simply inserted into the U jack but was not screwed tight. Before I started work, I was not informed of it and it was not apparent at all. 8 I fell one level down and was in a lot of pain. My co-workers who were working nearby heard my shouts and rushed over. Soon news about the accident spread. My safety supervisor, site manager and site supervisor was also informed about it. I was then sent to the Tan Tock Seng Hospital.”.

At the start of the trial, the Plaintiff sought to amend the words “U jack” in paragraph 7 to “clips”. In a nutshell, his case against the Defendants was that they had failed to take all reasonably necessary measures to ensure his safety at work — by making him bring the rubbish down from level 5 to level 4 of the building using the unsafe method of throwing the rubbish bags down through the void; by failing to ensure that the guardrail was properly secured; and by failing to inform him that the guardrail was not properly secured.

The salient evidence as given by the Plaintiff under cross- and re- examination was as follows: The guardrail In the earlier part of his cross examination, the Plaintiff described the “guardrail” referred to in his AEIC as being a pipe that was used as a barrier to prevent workers from falling through the void. Later on, he described it as consisting of 3 iron bars, two of which were vertical bars that were fixed to the ground at either side of the void, and the third was a horizontal bar which was connected at either end to each of the vertical bars by a clip. Access between levels 4 and 5 of the building There was a staircase that led all the way from the ground level to level 5 of the building and there was a lift between levels 4 and 5, except that because the lift was under repair at the time, workers had to use the stairs to get from level 4 to level 5 and vice versa. The method for clearing rubbish The normal and safer method for bringing the rubbish (which consisted of empty cement bags, papers, remnants of carpet material and adhesive, and planks) down from level 5 to level 4 was to use the stairs. However, on the day of the accident, the Plaintiff’s supervisor Pandian (who was also the safety supervisor of the worksite) instructed him to quickly clear the rubbish by — gathering and stuffing the rubbish into the black plastic rubbish bags; and then tying up the rubbish bags and throwing them down from level 5 to level 4 through the void. Should the rubbish bags break upon landing on level 4, he was to then go to level 4 to re-gather and re-stuff the rubbish into new rubbish bags and then tie up the new rubbish bags. The accident After having tied up about 30-40 rubbish bags on level 5, the Plaintiff began to throw them down to level 4 through the void. The first rubbish bag was small enough for him to pass it through the space framed by the 3 bars of the guardrail and drop it down the void but the second rubbish bag (which had some planks in it) was too big for that. As such, he decided to lift up the second rubbish bag and throw it over the horizontal bar of the guardrail. In the process, he used his left hand to hold onto the horizontal bar of the guardrail and his right hand to lift the rubbish bag and throw it over the top of the horizontal bar. When his left hand touched the horizontal bar of the guardrail, all 3 bars gave way, causing him to fall headfirst down the void from level 5 to level 4 some 9-10 feet below, and land on the last few steps of the staircase leading to level 4. He was still holding onto the horizontal bar of the guardrail when falling down the void. As he described it:

“the bar that I was holding hit against the wall … I then held onto the side wall … with the other hand… my body got turned, my leg got twisted. It was in that point in time that I fell forward 2 steps. When I had fallen, the bar was on my chest”.²

During the continuation of his cross examination at the 2nd tranche of the trial on 11 July 2013, the Plaintiff gave a different description of his fall as follows:

“In the midst of falling, I fell onto the pipe and then knocked my body against the wall. My body got turned; that is how I fell on the steps, on my leg”.³

The persons who attended to the Plaintiff after his fall Immediately after the accident, Mr Pandi Selvam (who was a co-worker and apparently also a relatively close friend of the Plaintiff’s) was the first to arrive at the scene to attend to the Plaintiff. Soon, two other Burmese co-workers also came to the scene. Mr Pandi Selvam telephoned the Safety Supervisor to inform the latter of the accident but the Safety Supervisor did not come to the scene. Instead, the Safety Supervisor instructed Mr Pandi Selvam to carry the Plaintiff down from level 4 to the ground level and Mr Pandi Selvam did so with the help of the 2 Burmese co-workers. The Plaintiff was then taken to Tan Tock Seng Hospital, accompanied by his supervisor Pandian (who was also the Safety Supervisor). The Plaintiff’s co-worker Satish (mentioned in paragraph 5 of his AEIC), who was supposed to have been clearing rubbish with him on level 5, had gone out to buy lunch (although it was not their lunch break yet) and as such was not around to witness the accident when it occurred or to attend to the Plaintiff. The injuries sustained by the Plaintiff The Plaintiff confirmed that as a result of the accident, the only injury that he sustained was a fracture to the back of his right heel. There were no other injuries to any other part of his body despite the way he fell. The Work Injury Compensation Claim Shortly after the accident, the Defendants, on 15 July 2011, made a report of the accident to the Ministry of Manpower’s Work Injury Compensation Department (exhibited as AS-1 to the Plaintiff’s AEIC) in which they described the accident as follows:

“The injured worker was bringing some rubbish bags down from the 5th storey staircase to 4th storey staircase when he slipped.”.

(m) In paragraph 9 of his AEIC, however, the Plaintiff asserted that “it was wrongly reported that I slipped while coming down the staircase”. The Plaintiff’s medical reports The Plaintiff exhibited to his AEIC (as Exhibit AS-3) 3 medical reports as follows: the medical report dated 26 January 2012 from Dr Ernest Quek (Consultant, Department of Orthopaedic Surgery, TTSH), who reported that the Plaintiff “slipped and fell down the stairs on the 11th...