Chaophai Kabin v Quek Yee Khian t/a AXA Engineering & Construction and Another

• Jurisdiction: Singapore
• Judge: Tan May Tee
• Judgment Date: 30 November 2009
• Neutral Citation: [2009] SGDC 467
• Court: District Court (Singapore)
• Published date: 28 August 2012
• Citation: [2009] SGDC 467
• Plaintiff Counsel: Amerjeet Singh (Hoh Law Corporation)
• Defendant Counsel: M P Rai (Cooma & Rai),Michael Eu (United Legal Alliance LLC)
• Year: 2009

[LawNet Editorial Note: The plaintiff’s appeal to this decision in DCA 34/2009/L was dismissed by the High Court on 31 March 2010.]

30 November 2009

District Judge Tan May Tee:

Background

1 The Plaintiff is a Thai national. He first came to Singapore to work in 1996. After 6 years in Singapore, he returned to his homeland. He came back to Singapore in 2002[note: 1] and began working for the 1^st Defendant, a sole proprietor whose main business activity is in the repair of roofs, change of roofing, and other related work on roofs of houses and factories.

2 On 10 February 2007, the Plaintiff was assigned to work on the roof of a building (“the Building”) located in a shipyard at 21 Pandan Road, Singapore. The 2^nd Defendants were at all material times the occupiers of the shipyard. The roof of the Building was constructed with metal sheets interspersed with acrylic pieces referred to as skylights. The 1^st Defendant had been contracted by the 2^nd Defendants to replace the roof of Store No. 2 of the Building. At about 11.25 am while walking on one of the sloping surfaces of the roof, the Plaintiff stepped on a piece of acrylic skylight. He fell through it, landing on the ground below and sustained injuries.

3 The Plaintiff commenced this action against the 1^st Defendant, his employer, and the 2^nd Defendants being the occupier, claiming damages for the injuries he suffered. The action was tried before me on the issue of liability. At the conclusion of the trial, I dismissed the Plaintiff’s claim against which he now appeals to the High Court. The grounds for my dismissing the Plaintiff’s claim are set out herein.

Pleadings

4 According to his Statement of Claim, the Plaintiff and his co-workers were required to walk on the four sloped surfaces of the roof s of the Building to carry out the works. Each roof was about 30 metres long with a total span of about 20 metres along its gabled ends and constructed of metal sheets interspersed with 5 to 6 pieces of skylights on each side. Each skylight was about 1.8 metre long and 0.8 metre wide. The skylights were in a worn-out condition and their colour was the same as the surrounding metal sheets.

5 A lifeline was installed on one of the roofs above its ridge line to enable the Plaintiff and his co-workers to carry out work in the close vicinity of the ridge line. The accident had happened in the following way:

At the material time, the Plaintiff was walking on a sloped surface (the sloped surface) of the roofs at a distance of about 8 to 9 metres away from the lifeline when he stepped on a skylight (the skylight) and the skylight broke causing the Plaintiff to fall a distance of about 7 to 8 metres onto the concrete floor inside the building. As a result, the Plaintiff sustained severe injuries.

6 It was also pleaded that at the material time, the skylight was partially covered by a stack of metal sheets which had been dismantled and placed on the sloped surface of the roof by other co-workers. Further, there was no anchorage point for the Plaintiff to secure his safety belt while he was walking on the sloped surface.

7 Against the 1^st Defendant, his employer, the Plaintiff claimed that he was injured by reason of the negligence and breach of statutory duties[note: 2] on the part of the 1^st Defendant and/or his employees, servants and/or agents for whom the 1^st Defendant is vicariously liable. Against the 2^nd Defendants, the Plaintiff pleaded he was injured by reason of their breaches of the occupier’s duty of care. The various particulars of the breaches alleged will be dealt with in the later part of these Grounds. Both Defendants denied the allegations of negligence and breach of duty. They pleaded that the accident was caused by the Plaintiff’s sole negligence or alternatively due to his contributory negligence.

Evidence pertaining to the accident

8 The Plaintiff gave varying accounts of how the accident occurred. In his affidavit of evidence-in-chief, he deposed as follows:

‘7. ... At the material time, I was required to install metal clips to a gable end of the roof. While the Plaintiff was walking on an inclined surface of the roof towards the gable end, he stepped on a skylight (the skylight) and the skylight broke causing the Plaintiff to fall a distance of about 7 to 8 metres onto the concrete floor inside the building. The skylights were all stained brown by rust from the supporting members and were no longer transparent. As the interiors of the building were not lit, the brown look of the skylights made them hardly distinguishable from the surrounding brown metal sheets.

8. We climbed up to the roof to do our work via two scaffolds that had been erected at two opposite gable ends of one of the pitched roofs. The height of the scaffolds extended beyond the roof ridge. A rope was tied between the two scaffolds just above the ridge so that we could hook our safety belt of 1.2 metre long to the rope whenever we had to do any work near the ridge. There was no such rope put above the ridge of the other pitched roof. The only other rope available for our use was a hoisting rope of about 7 to 8 metre long which we used for hoisting our tools and equipment from the ground level to the roof. We were not issued with individual ropes to tie ourselves to the rope on the ridge. Whenever we were required to do work near the edge of the roof or away from the rope on the ridge, we used the hoisting rope for tying our safety belt to the rope on the ridge. We were told by the supervisor that we must be careful not to let ourselves be photographed by the safety officers of PPL Shipyard while doing work in an unsafe manner. Any of us who were caught and reported by PPL Shipyard’s safety officers would be punished by the 1^st Defendant with pay cuts.

9. At the material time, the other workers had dismantled some metal sheets from the roof and had stacked them on a sloped surface of the roof. As I had to carry out installation of work (sic) on the edge of one roof, I had to walk around these stacks of old metal sheets to retrieve the hoisting rope that had been left at the other end of the roof. While I was walking around a stack of the metal sheets, I stepped on a skylight and it broke. As a result, I fell through the roof through a vertical distance of about 7 to 8 metres to the inside of the building and severe injuries (the accident) (sic)’

9 Reading the above, it was unclear what exactly the Plaintiff was doing when he fell. His first account in paragraph 7 was that he was walking towards the gable end to instal metal clips. I understood this to mean he was walking in a direction perpendicular to the ridge line of the roof, from the apex or the highest point towards the gable end, i.e. going to the lowest point at the edge of the roof to instal metal clips. Then in paragraph 9, he stated that he was walking to the other end of the roof to retrieve a hoisting rope when he stepped on the acrylic skylight. Did “the other end of the roof” mean the gable end where the metal clips were to be installed or the other edge of the roof which would require him to walk parallel to the ridge line of the roof? Was he walking on the roof to get to a hoisting rope or was he walking on the downward slope to instal metal clips? What was certain, however, was that the Plaintiff was walking on the roof when he stepped on the skylight which broke under his weight and he fell.

10 The Plaintiff’s oral testimony in Court differed significantly from his affidavit version when he was cross-examined by Mr Rai, counsel for the 1^st Defendant, as shown from the excerpt[note: 3] below:

‘Q: Let me ask you – what happened to cause you to fall from the roof. Explain?

A: On 10 Feb 2007 before I started to work I wore safety belt, safety harness and was instructed to go up to work on the roof, at the edge of the roof. As when I was up there, the length of the rope was too short, it was just 1.2 metre long, it was too short for me to anchor my safety harness to the lifeline. So what I did, Your Honour, I went to find another rope so that I can use this new rope to tie to the rope of my safety belt so that the length would be extended.

It was my idea, so when I got this idea, I saw a rope lying on another roof, it was at the adjacent roof. As a result, I had to release the anchor or hook of my safety belt in order to move to get the rope on the adjacent roof.

After I unhook my safety belt there was a pile of roof sheets that obstruct my way to go directly to the adjacent roof. Therefore I must walk around this pile of zinc sheets.

So as I walk around there was one piece of zinc sheet placed on the covered part of the skylight, it’s a transparent plastic roof for lighting the place inside.

So one piece of the zinc sheet covered part of transparent plastic piece.

I remember it was a Saturday so the office did not work.

So right inside in the premises below, there was no light. This transparent sky roof, because it was old, covered with some dirt so it wasn’t clear for me to identify this transparent plastic piece.

So as I walked, I had to be very careful, I had to look ahead of me and I also need to look out for Safety Officer as well.

Accidentally I stepped onto this transparent piece of plastic. As a result I fell all the way to the concrete floor.

..

Q: So your evidence is that you were working on one roof which was your work area and you unhooked your harness to move to another adjacent roof which is not your work area but to get a rope, correct?

A: Yes.

(emphasis mine)

11 The sequence of events given from the Plaintiff’s account in cross-examination was that he had initially been wearing his safety belt and safety harness when he started work on the roof that morning. He then unhooked his safety belt to retrieve another rope located on the adjacent roof. This adjacent roof was not the roof which he was working on at the material time. It was “his idea” to do this and...