Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd and Others (Cosmic Insurance Corporation Ltd, Third Party)

• Judge: Lim Teong Qwee JC
• Judgment Date: 31 December 1996
• Neutral Citation: [1996] SGHC 296
• Citation: [1996] SGHC 296
• Court: High Court (Singapore)
• Plaintiff Counsel: Mukesh Shah
• Defendant Counsel: Lim Chong Boon and Valerie Ang,B Rao, Fazal Md bin A Karim and Philip Chua
• Published date: 31 January 2013

Judgment:

GROUNDS OF JUDGMENT 1. On 3 July 1994 at about 9.50am an uncompleted wooden structure at a construction site collapsed. The structure was to have been the site office. The plaintiff was employed at the construction site as a general worker and from about 8.00am that day he had been working inside the structure. He was engaged in its construction. He was seriously injured when the structure collapsed and in this action he claims damages for loss and expense as a result of the injuries he sustained.

2. The second defendant ( HDB ) was the owner of the site which was in Tampines at the junction of Ave 6 and Ave 9. HDB had awarded a contract for the construction of 656 dwelling units there to the first defendant and by a contract evidenced by the first defendant's letter to Sources Construction Pte Ltd ( Sources ) dated 2 July 1994 the first defendant had sub- contracted the whole of the works to Sources. Sources had in turn sub-contracted the carpentry works to Hood Seng Construction Engineering ( Hood Seng ) and Hood Seng had in turn sub- contracted part of those works to Quick Start Construction ( Quick Start ). The works sub-contracted to Quick Start included the construction of the site office.

3. Before the trial began there were two procedural developments. On 11 September 1995 interlocutory judgment in default of appearance was entered against the third defendant for damages to be assessed. As appears from the title of this action the third defendant is Kwan Kok Pheng trading as Quick Start Construction. On 4 March 1996 the action against HDB was discontinued but the pleadings were not amended. The trial is in respect of the action against the first defendant only and of the third party proceedings.

4. Lim Png Sor ( Lim ) testified that in July 1994 he and Lee Kuan Yong ( Lee ) were partners in the firm of Quick Start Construction. This is borne out by the returns lodged with the Registry of Companies & Businesses which also showed that the third defendant Kwan Kok Pheng ( Kwan ) only entered the business on 19 September 1994 when Lee withdrew. This is not in dispute and I find that Lim was a partner of Quick Start to whom the construction of the site office had been sub-contracted by Hood Seng.

5. The plaintiff alleged in his statement of claim that he was employed by the first defendant or HDB and also by the third defendant or by all of them at the time of the accident. In his affidavit he said he was employed by one or two or all three of the original defendants but under examination-in-chief in court he said he was working for the first defendant and that he was not working for the third defendant.

6. The plaintiff is a Malaysian from the state of Kelantan where he worked as a rice padi planter. He said he came to Singapore to find work because he would be paid much more. He said a fellow Malaysian brought him to the construction site. He did not know his name. He was not working at the same construction site.

7. The plaintiff said that he discussed his salary with a Mr Ban Ching. He was informed by the fellow Malaysian that this person was the supervisor. He admitted that this person himself did not tell him he was the first defendant's supervisor and there was no evidence that anyone else did. Although he did not have a work permit he said he was told to start work first and Mr Ban Ching would take care of that later on. None of this evidence was mentioned in his affidavit.

8. The plaintiff said that he started work the same day after the interview and Mr Ban Ching told him to work on the site office. He said he was to knock in some nails so < the > site office would not shake . He never saw Mr Ban Ching again. He did not know the third defendant (Kwan) or Lim or Lee. He worked with four others. He did not know them and he did not even know if any one of them worked with him on any of the other days he worked there. On his third day at work the site office he was working on collapsed.

9. Shum Hau Tak ( Shum ) testified that he was the deputy general manager of the first defendant. He said in his affidavit that investigations carried out by his company and the third party revealed that the plaintiff was not employed by the first defendant. He did not know Mr Ban Ching.

10. Lim said that the plaintiff was his employee at the Tampines construction site. He knew the plaintiff did not have a work permit and told him he would apply for one after a trial period of one week. He did not know Mr Ban Ching.

11. Tan Saw Wei a senior officer in the Ministry of Labour said that she carried out investigations into the illegal employment of foreign workers and in the course of her investigations she recorded a statement from Lim. In his statement Lim admitted that he interviewed the plaintiff for employment as a construction worker. By letter dated 6 January 1995 she offered to compound the offence of employing the plaintiff in July 1994 to 3 July 1994 without a work permit on payment of $1,000. On 9 February 1995 the offer was accepted and Lim paid $1,000. Lim confirmed that he paid and that the offence was compounded.

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.

14. The plaintiff said that he started work at 8.00am on the day of the accident. He worked inside the uncompleted site office. He said there was still a lot more to be done . When he was asked if it was a two-storey site office he said he would not know as there was only one level when he was working there. The roof was not in place yet. He said there was only a plywood ceiling over the structure.

15. In his affidavit the plaintiff said that it was raining heavily that morning but the servants or agents of the defendants insisted that < they > continue to work as the site office was required urgently . The affidavit was affirmed before the action against HDB was discontinued and defendants would have meant the first defendant, HDB and the third defendant.

16. The plaintiff was asked who told him to continue working and he said it was Mr Ban Ching but when he was reminded that he had said he did not see Mr Ban Ching again after the interview on his first day of work he corrected himself and said that on the day of the accident Mr Ban Ching did not tell him anything. When he was asked who insisted he continued working he said On first day Ban Ching already told me to carry on working and not to stop until job completed. He was asked again if on that day anyone told him he had to continue and he said No one.

17. The plaintiff was asked why he continued to work even though it was raining heavily. His answer was brief. It was sheltered inside . This is part of his evidence under cross- examination:

Q: Remember weather condition 3/7/94 from about 9.30 am?

A: Can't remember. But it was dark.

Q: Affidavit para 10. Raining heavily. At time of accident? Remember?

A: Yes. Remember.

Q: Rain came into site office?

A: No.

Q: Heard thunder?

A: No. I was inside. Working indoors.

Q: Which part of site office you were in just before collapse?

A: In the middle.

Q: Collapse of site office. Straight down or to side?

A: Don't know. I was unconscious.

18. The Straits Times newspaper in its issue of 4 July 1994 carried an article about heavy rain and strong winds having swept across Singapore the day before. The meteorological service was asked for its report on the weather in the Tampines area and in his letter of 10 April 1996 Tan Suan Foon ( Tan ) the deputy director (services) said:

Our assessment of the weather condition is as follows:-

Location : Tampines area

Date : 3 July 1994

Time : Between 0830 hrs and 1030 hrs

Wind : South/Southwest 10-20 km/h. Occasionally between 0930 hrs and 1030 hrs Southwest/West 30-40 km/h with strong wind gust to 60-90 km/h due to a 'Sumatra' squall/thunderstorms.

Weather : Intermittent to continuous rain occasionally heavy. Also occasional lightning/thunder.

Remarks : Similar wind and weather condition affected many other parts of Singapore.

19. Tan explained that there were five weather stations in Singapore recording the weather each day. There was no weather station in Tampines. Two weather stations nearby were at Changi Airport and Paya Lebar. The statement as to the weather in Tampines was his assessment based on records at the two weather stations nearby.

20. At Changi Airport wind speed started to rise at about 10.00am and most of the time it was above 40 km/h. Tan said that at Tampines strong winds could have started earlier but he was quick to point out that although the wind was from the west it did not mean that strong winds would hit the west first. At Changi Airport the strongest wind gust was recorded at 87 km/h at about 10.15am and at Paya Lebar at 63 km/h at about 9.45am. He said a Sumatra squall was usually accompanied by heavy rain and strong gusty west to east wind. When asked if the wind conditions on 3 July 1994 were totally out of the ordinary his answer was that he would say they were uncommon.

21. There was no direct evidence as to the wind conditions at the construction site in Tampines at any time on 3 July 1994 or as to what caused the uncompleted wooden structure to collapse at about 9.50 that morning. It was raining heavily while the plaintiff was working inside the structure. He did...