Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd and other appeals

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 13 August 1997
• Neutral Citation: [1997] SGCA 33
• Plaintiff Counsel: Lim Chong Boon (Derrick Ravi & Partners),Subbiah Pillai (Pillai & Pillai), Karuppan Chettiar and Steven Lam Kuet Keng (Karuppan Chettiar & Partners),NB Rao (B Rao & KS Rajah)
• Date: 13 August 1997
• Published date: 19 September 2003
• Subject Matter: Invitee,Whether occupier negligent,Whether res ipsa loquitur applicable,Collapse of uncompleted structure,Occupiers’ liability,Whether plaintiff employee of main contractor,Who is an employer,Duty to invitee,Relevant test,Tort,Employer's liability owed to an employee,Insurance,Definition of employer,Burden of proof,Applicable principles,Whether construction site fell to be considered as a 'factory'- Place of work to be of 'sound construction and properly maintained',Collapse of site office,Construction of policy,Duty of care,Occupier’s liability,s 33 Factories Act (Cap 104),Breach of statutory duty,No direct contractual relationship between plaintiff and main contractor,Factories Act,Relevant test of occupier,Duties imposed by statute,Applicability and scope of Factories Act,Res ipsa loquitur,Definition,Indemnity,Construction torts,Whether plaintiff fell to be covered under scope of the policy,Building and Construction Law,Negligence,Reasonable care to prevent damage from unusual dangers,Coverage of policy
• Docket Number: Civil Appeals Nos 115, 126
• Citation: [1997] SGCA 33
• Court: Court of Appeal (Singapore)
• Year: 1997

(delivering the judgment of the court)

In the court below, the plaintiff, Awang bin Dollah (`the plaintiff`) claimed against Shun Shing Construction & Engineering Co Ltd (`Shun Shing`) damages for personal injuries suffered by him as a result of an accident which occurred at a construction site in Tampines on 3 July 1994. Cosmic Insurance Corporation Ltd was the third party (`the third party`), having been joined as such by Shun Shing claiming an indemnity under a policy of insurance. The trial judge dismissed with costs the plaintiff`s claim. He also dismissed Shun Shing`s claim against the third party but held that Shun Shing`s claim against the third party for an indemnity would have succeeded, if the plaintiff had succeeded in his claim against Shun Shing. He ordered the third party to pay Shun Shing`s costs in the third party proceedings. Against that part of the decision of the learned judge dismissing his claim, the plaintiff appeals, and his appeal is CA 115/96. Shun Shing also appeal, and theirs is CA 126/96, and is to the effect that should the plaintiff succeed in his appeal, the learned judge`s order dismissing their claim against the third party be reversed. They appeal also against the order as to the costs of the third party proceedings. Finally, there is the appeal by the third party, namely, CA 145/96, and that is essentially against that part of the learned judge`s decision which held that that the third party would have been liable to indemnify Shun Shing against the claim of the plaintiff under the insurance policy, had the plaintiff succeeded in his claim against Shun Shing.

The facts

On 3 July 1994 at about 9.50am, an uncompleted wooden site office at the construction site situate at the junction of Tampines Avenue 6 and 9 collapsed. The plaintiff was a general worker at the construction site and at that time was working inside the structure when it collapsed and he was seriously injured.

The construction site belonged to the Housing and Development Board (`HDB`). HDB awarded the contract for the construction of 656 dwelling units on the site to Shun Shing in May 1994, who in turn sub-contracted the whole of the works to Sources Construction Pte Ltd (`Sources`), as evidenced by their letter to Sources dated 2 July 1994. Sources then sub-contracted the carpentry works for the site to Hood Seng Construction Engineering (`Hood Seng`), and the latter in turn sub-contracted part of these works to Quick Start Construction (`Quick Start`). This sub-contract was evidenced by a letter dated 29 June 1994 from Hood Seng to Quick Start - this letter, however, predated the letter evidencing the sub-contract between Shun Shing and Sources.

The plaintiff commenced this action against HDB as the first defendant, Shun Shing as the second defendant and Quick Start as the third defendant, claiming against them damages for personal injury and for losses and expenses he had sustained. He founded his claim on negligence and a breach of duty as employers and/or occupiers of the site office and also on a breach of duty under the Factories Act (Cap 104) (`the Factories Act`).

After the commencement of this action, Shun Shing started third party proceedings against the third party. The third party had, by a contract of insurance dated 30 August 1993, agreed to indemnify Shun Shing against all sums which Shun Shing were liable to pay to their workmen for any personal injury which they might suffer arising out of or in the course of their employment by Shun Shing. Initially, when the policy was issued, there was only one person covered by it, that person being Shum Hau Tak (`Shum`), the quantity surveyor employed by Shun Shing. This insurance coverage was for accidents occurring anywhere in Singapore. Subsequently, by an endorsement, Endorsement No E5290/1 dated 13 January 1994, the policy was extended to cover `3 General Labourers (Sub-Contractors` Workers)`. Shun Shing contended that this endorsement extended the policy to cover the plaintiff as an employee of a sub-contractor.

Before the trial started, the plaintiff had discontinued his claim against HDB, and had obtained an interlocutory judgment in default of appearance against Quick Start. Thus, when the action came on for trial, it was an action between the plaintiff and Shun Shing and between Shun Shing and the third party.

The trial

The plaintiff was a Malaysian rice padi planter but came to Singapore to find work, as he could earn a higher salary here. In his evidence, he stated that a fellow Malaysian, whose name he did not know, brought him to the site. He was introduced to a man who, he was told, was `Mr Ban Ching` and who was also the supervisor at the site. He discussed his salary with Ban Ching and was told to start work first, despite the fact that he did not have a valid work permit at that time. He also said that the fellow Malaysian told him that Ban Ching was employed by Shun Shing. He maintained that he was not introduced to anyone else, nor was he employed by any other firm or company. Three days after he had started work, he was injured when the site office in which he was working collapsed onto him. At that particular time, there were four other fellow workers who were also working in or at the site office. In an article carried in the Straits Times on the following day, it was reported that one of them was tragically killed and the rest were injured in the accident.

According to the plaintiff, on the first day when he started work (which was on 1 July 1994), Ban Ching told him to work in the site office. Ban Ching`s instructions were to `knock in some nails so site office would not shake`. He therefore worked there. On the day of the accident, although he realised that it was raining heavily, he nevertheless continued working there, as it was sheltered inside. Although the roof of the site office had not as yet been built, a ceiling made of plywood had been installed. Further, the plaintiff and his fellow workers had to continue working, as the site office was required urgently. As a result, he did not stop working and it was in the midst of this that the site office collapsed.

It was established at the trial that Shun Shing did not employ the plaintiff. First, there was the evidence of Shum. He testified that after the accident he started investigations into the accident and found that the plaintiff was not employed by Shun Shing. He could not confirm the existence of a person called `Ban Ching`. Secondly, a partner of Quick Start, Lim Png Sor (`Lim`), gave evidence that he was the one who had interviewed and employed the plaintiff. He testified that he knew that the plaintiff did not have a work permit but informed the plaintiff that he would apply for one after a trial period of one week. It was in evidence that shortly after the accident, an officer of the Ministry of Labour started investigations and found that Lim was the one guilty of employing illegal workers. Lim subsequently paid a sum of $1,000 to compound the offence for employing the plaintiff to work for the period of three days without a work permit.

Decision below

The trial judge dismissed the plaintiff`s claims against Shun Shing. He found that Quick Start and not Shun Shing were the employers of the plaintiff. He therefore held that the plaintiff`s claim against Shun Shing as an employer for damages for negligence and breach of duty to take reasonable care failed. He said in [para ] 12-13 of his grounds of judgment:

12 I find that at the time of the accident on 3 July 1994 the plaintiff was employed by Quick Start as a construction worker. He was employed two days previously and was instructed to work on the construction of the site office together with about four others. He was not employed by the first defendant or HDB.

13 The plaintiff alleged in para 7 of the statement of claim that the accident was caused by the negligence of the first defendant and/or by the breach of the first defendant`s duty as his employer to take reasonable care for his safety. All the particulars given had to do with the allegation that the first defendant was his employer. I have found that the first defendant was not his employer and accordingly the claim under para 7 fails.

Next, the learned judge found that Shun Shing were the occupiers of the construction site including that part where the site office was under construction, and that they had control thereof and did not relinquish it by sub-contracting their works to Sources. He held that the plaintiff was an invitee while he was working at the half completed site office. He accepted that the duty of an occupier to an invitee is to use reasonable care to prevent damage or injury to the invitee from any unusual danger which he knows or ought to know. He found that on that day, in the morning between 8.30 am and 10.30 am, heavy rain and strong winds swept across Singapore. There was evidence before him which showed that during that time there was a strong wind gust of 60-90 km/h due to a Sumatran squall/thunderstorm and that the strongest wind at Changi Airport was recorded at 87 km/h at about 10.15 am and at Paya Lebar at 63 km/h at about 9.45am. The learned judge came to the conclusion that the structure collapsed at about 9.50am and that it collapsed under the combined force of the heavy rain and strong gusty wind.

Turning to the law, the learned judge held that, having regard to the circumstances of the case and the law on occupiers` liability laid down in Industrial Commercial Bank Ltd v Tan Swa Eng & Ors [1995] 2 SLR 716 , the plaintiff had not proved his case against Shun Shing. He held in [para ] 45 of his grounds of judgment as follows:

45 Having regard to all the evidence before me I find that it has not been proved that there was any danger of the structure collapsing before it actually collapsed. It has not been proved that any of the first defendants` supervisors or officers knew or ought to...