China Construction (South Pacific) Development Co Pte Ltd v Shao Hai

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 23 March 2004
• Neutral Citation: [2004] SGHC 59
• Date: 23 March 2004
• Subject Matter: Whether there was breach of employer's duty to provide safe and secure workplace for employees,Pleadings,Order 18 rr 7 and 15(1) Rules of Court (Cap 322, R 5, 1997 Rev Ed),Breach of duty,Standard of care,Civil Procedure,Negligence,Whether court may make finding on material facts not pleaded,Tort
• Docket Number: District Court Appeal No 12 of 2003
• Published date: 29 March 2004
• Defendant Counsel: N Srinivasan (Hoh Law Corporation)
• Court: High Court (Singapore)
• Plaintiff Counsel: Tan Beng Swee (Tan Beng Swee)

23 March 2004 Judgment reserved.

Judith Prakash J:

Background

1 In December 2000, China Construction (South Pacific) Development Co Pte Ltd (“China Construction”), was carrying out construction works at the premises of the Nanyang Technological University (“the site”). On 26 December, one of the carpenters employed by China Construction, one Shao Hai, became involved in a fight with another worker, one Cao Yong Hui. Cao hit Shao with a piece of metal and fractured the latter’s hands.

2 In May 2001, Shao started this action in the District Court. The original defendants were Cao, three other co-workers and China Construction. Judgment in default of appearance was obtained against three of the defendants including Cao, but China Construction contested liability and the action went for trial. In July 2002, the district judge delivered judgment and held China Construction to be 50% liable for Shao’s injuries. The district judge found Shao himself to be 50% liable for his own injuries as he had provoked Cao and had thus been the co-author of his own misfortunes. China Construction has appealed.

The action below

3 In Shao’s statement of claim, two causes of action were pleaded against China Construction. The first was that it was vicariously liable for the wrongful acts of Cao and the other three co-defendants when they assaulted Shao. The second was that it was negligent at common law because it had failed to provide a safe and secure system of work at the site, proper supervision and/or safe fellow employees.

4 The facts that emerged at the trial were as follows. The construction project undertaken by China Construction involved the alteration of various buildings on the site in order to expand the teaching facilities available at the Nanyang Technological University. The work had to be done at different locations on the site. Shao, a Chinese national and a construction carpenter with some 15 years’ experience, had come to Singapore in April 2000 to work for China Construction. His duties as a construction carpenter included all carpentry work and the erection and stripping of formwork. At the material time, he was working at block N1.1.

5 On the morning of 26 December 2000, the foreman in charge of the carpenters on site had instructed Shao and a fellow carpenter to assemble a metal frame for the construction of the flooring between the third and fourth storeys of block N1.1. Once the frame was in place, the metal workers would install reinforced steel rebars and thereafter concrete would be poured into the frame. The work was done at a height of about 6m above ground level and both the carpenters and the metal workers had to work on a platform at this level. The carpenters had to assemble the frame using metal moulds or formwork and the metal workers had to bring the steel rebars up to the platform so that they could be inserted inside the assembled formwork.

6 Just before the lunch break Shao and his co-worker managed to collect all the formwork of the various sizes that were needed to fit the construction area. At about three o’clock in the afternoon, Shao discovered that one small piece of formwork was missing. He searched for it and found it on the platform being used as a support for some heavy steel rebars. He asked the metal workers present to give it back to him. When his request was not acceded to, he walked over to retrieve the missing formwork himself. When he pulled it away from the rebars, they fell off the platform onto the ground 6m below. The steel workers were upset as they had spent the whole morning carrying the bars by hand up to the platform. A heated argument and scuffle then broke out between Shao and Cao who was the team leader of the steel workers. Shao assaulted Cao by punching his face and kicking his leg. Under this sudden and grave provocation, Cao retaliated by hitting Shao with a piece of formwork. Shao’s hands were fractured when he tried to protect himself against being so hit. Subsequently, Cao was charged with the offence of causing grievous hurt to Shao under grave and sudden provocation under s 335 of the Penal Code (Cap 224, 1985 Rev Ed). He pleaded guilty and was sentenced to ten weeks’ imprisonment. Thereafter, he was deported to China.

7 At the trial of this action, evidence as to what had happened on the day in question was given by the investigating officer; Shao himself; one Jin Jie who was a site supervisor; one Guo Man Dong, the site manager and one Zhao Shen Ping who was a worker on the project. The trial judge considered this evidence in the context of whether the two causes of action had been substantiated. In relation to the claim of vicarious liability, the judge cited Salmond on Torts (13th Ed, 1961) at 122 to the effect that an employer was not responsible for a wrongful act done by his employee unless it had been done in the course of his employment. It would be deemed to be so done if it was either: (a) a wrongful act authorised by the employer or (b) a wrongful mode of doing an authorised act. The judge found that the illegal acts of assault committed by Cao on Shao during the fight were not acts that China Construction could be said to have expressly or impliedly authorised.

8 The judge further found that Shao could have, as he himself admitted, come down from the platform and walked to the base of the tower crane to get another piece of formwork instead of retrieving the piece on the platform. Shao had acted recklessly and dangerously by displacing the steel rebars from the six-metre high platform. This in itself was not a wrongful mode of doing an authorised act. Shao had been motivated “by nothing more than sheer perversity rather than any misguided attempt to finish his assigned task”. Further, “all the plaintiff’s and defendant’s acts against each other that afternoon were retaliatory destructive acts against each other”. The judge therefore concluded that there was no basis for a claim of vicarious liability in this case. Shao has not appealed against that finding.

9 In relation to the second basis of claim, following the decision of the Court of Appeal in Parno v SC Marine Pte Ltd [1999] 4 SLR 579, the judge stated that the common law duty that an employer owes his employees in relation to the system of work is to provide:

(a). a competent staff of men;

(b). adequate material; and

(c). a proper system of, and effective, supervision.

10 In relation to this head of claim, the trial judge held that the events on the material day had taken place in the following sequence:

(a) Shao discovered that a piece of formwork he intended to use was missing, he went to look for the formwork and found it wedged below a pile of steel rebars.

(b) Shao retrieved his formwork, causing the rebars to fall onto the floor below. When the bars hit the ground, there was an extremely loud clattering sound and that was loud enough for China Construction’s supervisor, Mr Jin, to hear even though he was in the toilet at that time.

(c) Cao and three co-workers saw this happening and reacted by moving over to Shao’s work area.

(d) Either Cao alone or all four workers proceeded to dismantle the formwork and this resulted in more construction materials raining onto the ground below.

(e) Shao attempted to protect his formwork layout. As the metal workers approached Shao, he cowered down and attempted to cover the undemolished formwork and protect it.

(f) Shao was manhandled by the four metal workers who pulled him into an upright position.

(g) Shao resisted and a struggle ensued.

(h) Shao hit Cao on the face and also kicked him.

(i) Cao’s three co-workers either restrained Shao or attempted to separate the two or (as Shao himself testified) did not involve themselves in the fight.

(j) Cao retrieved a piece of formwork and attacked Shao with it.

(k) Shao used both hands to block the descending formwork piece wielded by Cao and sustained the bilateral fractures of his hands.

11 The judge considered that China Construction must have been aware that Cao had a propensity for violence because the site manager Guo had referred to both Cao and Shao as having been frequently warned not to engage in illegal fights. Guo had also assessed Shao as a known troublemaker who had gone through several supervisors before the incident. The judge also found that in so far as the system of work was concerned “there was a considerable degree of chaos on 26 December 2000, when the tower crane had broken down” ([2004] SGDC 181 at [84]). According to him, the fatigue of the metal workers caused by having to lug the heavy steel rebars up the scaffolding, combined with the restricted space in which the carpentry and metal workers had to work together and the time pressures on them to complete their tasks had contributed to “a volatile mix when [Shao] engaged in his perverse and ill-considered act of pulling his form work away from the pile of iron bars resting on it” (at [84] and [85]). The judge’s conclusions (at [91]) may be summarised as follows:

(a) Shao’s injury was ultimately caused by a blow from Cao wielding the piece of formwork and this blow occurred at the last stage of the altercation between Cao and Shao.

(b) Jin was elsewhere at that time and only reacted to the sound of poles falling onto the ground. He was the only supervisor in the immediate vicinity and had been tasked to supervise building works that were far apart. The level of supervision was woefully inadequate.

(c) On the facts, the interval between the time when China Construction would have received a warning that something was amiss at the worksite and the time when the injury was inflicted was sufficiently long for it to have intervened and prevented the injury. Jin’s failure to intervene and take steps to suppress the fight was a failure to maintain proper supervision.

(d) The negligence of China Construction was not premised on the mere fact that there was a fight between Cao and Shao, but rather that the injury...