Chong Kim Beng v Lim Ka Poh (trading as Mysteel Engineering Contractor) and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 06 April 2015
• Neutral Citation: [2015] SGHC 90
• Plaintiff Counsel: N Srinivasan and Belinder Kaur Nijar (Hoh Law Corporation)
• Docket Number: DCA No 36 of 2014
• Date: 06 April 2015
• Hearing Date: 27 March 2015,05 September 2014,09 February 2015,13 March 2015
• Subject Matter: Damages,Apportionment
• Year: 2015
• Citation: [2015] SGHC 90
• Defendant Counsel: Foo Soon Yien (Bernard & Rada Law Corporation)
• Court: High Court (Singapore)
• Published date: 08 April 2015

Woo Bih Li J: Introduction

The appellant is Chong Kim Beng (“Chong”). He is a Malaysian employed as a welder by Mysteel Engineering Contractor (“MEC”) sometime in 2011. The first and second respondents, who are Lim Ka Poh and Choo Wooi Chin respectively, were carrying on business under the name of MEC at all material times. Chong was deployed by MEC to work for the third respondent, Chee Seng Engineering Works Pte Ltd (“Chee Seng”), at a workshop at 3 Tuas Drive 1 (“the Site”). On 16 May 2011, Chong’s right hand was injured by the blades of a blower fan (“the fan”) whilst working at the Site.

Chong then filed a claim against the first and second respondents trading as MEC and against Chee Seng for his injuries, economic loss and damages.

After a trial, a District Judge (“the DJ”) gave oral judgment on 13 February 2014. He granted interlocutory judgment to Chong to the extent of 90% of the damages to be assessed, with Chee Seng bearing 75% and MEC bearing the remaining 15%. Chong was held to be 10% liable for his own negligence. The DJ also clarified on 10 March 2014 that the liability of the defendants was not joint. This meant that MEC was only liable for 15% and not 90% of the damages vis-à-vis Chong.

Chong then filed an appeal. His appeal is confined to one aspect of the judgment, which is the DJ’s holding that the defendants’ liability is not joint. In other words, Chong contends that the defendants’ liability is joint such that MEC and Chee Seng are each liable to him for 90% of his claim although as between the defendants, MEC is liable for 15% and Chee Seng is liable for 75%. It should be noted at this juncture that references to “joint liability” in the present case is in fact a reference to “joint and several liability”.

At the appeal, counsel for Chee Seng did not appear. He had obtained leave to be excused. It appears that Chee Seng is not concerned whether Chong succeeds in his appeal or not although Chee Seng will be bound by the outcome.

Counsel for MEC vigorously disputed that there was joint liability. There is no cross-appeal by MEC.

Main issues

The first main issue was whether Chong’s pleadings allowed him to claim that the liability of the defendants was joint (“the Pleading Issue”).

The second main issue was whether in fact and in law, the liability of the defendants to Chong was joint (“the Substantive Issue”).

The Pleading Issue

The DJ’s grounds of decision do not deal with the Pleading Issue perhaps because it was not raised before him.

MEC argues that it was taken by surprise as there was nothing in the relevant Statement of Claim (“SOC”) to suggest that Chong was claiming that the defendants were jointly liable to him. The words “joint and several” were not used in the body of the SOC or in the prayers for relief. Chong accepted that the words “jointly and severally” were not expressly used in the SOC but he argued that the facts on which the claim for joint and several liability is based were pleaded.

MEC also argues that if it had known that Chong was claiming on the basis of joint liability of the defendants, it would have taken a number of steps which it did not because it had thought all along that the claim was on the basis of several liability only. Therefore, MEC claims that it would be prejudiced if Chong were allowed to argue for joint liability on the part of the defendants.

I am of the view that the facts to establish joint liability were pleaded. First, whether the facts do result in a finding of joint liability is a matter of legal argument. Secondly, although Chong’s prayers for relief did not explicitly claim damages against the defendants on the basis of joint and several liability, there is no requirement that the words “joint and several” must be used. Indeed, no such words are used even in the precedent from Atkin’s Encyclopedia of Court Forms in Civil Proceedings vol 20 (LexisNexis, 2nd Ed, 1993 Issue) which MEC drew my attention to. The precedent states, “[a]nd the Plaintiff claims from one, other or both Defendants damages …”. In comparison, Chong’s prayer for relief states, “[a]nd the Plaintiff claims …”. I do not see a material difference between Chong’s prayer for relief and the precedent which MEC was relying on for the present purposes. Indeed, Form 35 of the Atkin’s Encyclopedia of Court Forms in Civil Proceedings vol 38(1) (LexisNexis, 2nd Ed, 2011 Issue) on joint liability simply states, “[a]nd the Claimant claims …”. This is substantially the same as Chong’s prayer for relief.

Accordingly, the absence of the words “joint and several” in the SOC and in the prayer for relief is not fatal to Chong’s claim in the circumstances. Having said that, it is in the interest of solicitors to learn from the present dispute and insert those words when they act for a plaintiff, if that is indeed the basis of the claim, so as to avoid argument in future.

MEC’s arguments about prejudice are therefore academic because its arguments were made on the premise that Chong’s pleadings did not allow Chong to claim that MEC was jointly liable. Nevertheless, I will address MEC’s arguments about prejudice. MEC submits that it would have taken some steps, which it did not, had it been aware that Chong was claiming on the basis of joint liability against the defendants.

The first argument is that MEC might not have pleaded contributory negligence against Chee Seng since MEC would nevertheless have been jointly liable with Chee Seng to Chong if liability was established against MEC. I do not accept this argument. Even if MEC was jointly liable with Chee Seng to Chong, it was still in MEC’s interest to claim contributory negligence against Chee Seng. MEC could not have been certain that just because Chee Seng is not insured, Chee Seng would not be able to pay for its share of the liability. Furthermore, MEC’s claim for contributory negligence against Chee Seng is not prejudiced. If MEC had not made that claim, that might be prejudice.

MEC’s second argument is that it might not have gone to trial and might have settled the matter since it would also be held liable for Chee Seng’s negligence if there were joint liability. I do not accept this argument. MEC would be held liable on the basis of joint liability only if there was first a finding of liability against MEC and, secondly, if there was a finding that the defendants were jointly liable. Throughout the trial, MEC was contesting all liability on its part. Its entire submission before the DJ was on the basis that it had no liability at all. Hence, it is clear to me that it would still have gone to trial in any event.

The third argument is that MEC would have focused its attention on the factual question as to whether the fan was covered or not at the time of the accident. Chong said there was no cover. Chee Seng said there was. I do not accept the third argument. If there was a cover, then Chong’s account of the accident in which he said that one of his hands was caught in the fan because there was no cover would be disbelieved and this might well have exonerated both Chee Seng and MEC from liability. If MEC chose not to focus on this factual issue, it was probably because MEC did not believe Chee Seng’s version on this point in the first place. In any event, it was not because MEC thought that it had several liability only.

MEC’s fourth argument is that it would have focused on when Chong came to be at the work site and whether the fan was there before or after Chong commenced work there. This was because the DJ found that MEC, as Chong’s employer, was under a duty to carry out a risk assessment exercise of the work site for signs of danger which Chong might be exposed to. I do not accept this argument because MEC did argue at para 197 of its closing submissions before the DJ that “even if the 1st and 2nd Defendant had gone to the site to inspect it and ascertained that the place was safe that day, it is submitted that they would not be able to know where the [fan] would be placed the following day and whether it would be safe”. This was a point, which if accepted, would have exonerated MEC from total liability and was already raised by MEC. It was not dependent on Chong’s claim for joint liability.

The fifth argument is that MEC would have focused on the evidence as to whether MEC had any locus standi to be present at the work site during the course of Chong’s work. I do not accept this argument. The argument that MEC would not have been allowed to be at the work site would have been relevant to its argument for total denial of liability in any event and was not dependent on Chong’s claim for joint liability.

MEC’s sixth argument is that it would have applied to join ACL Constructions Pte Ltd (“ACL”), the supplier of the fan, as a co-defendant or third party for two reasons. The first would be to ascertain whether MEC would have been allowed to be at the work site to supervise Chong and the second would be to ascertain whether liability should also be apportioned to ACL. The first part of the sixth argument is similar to the fifth argument which I have addressed. The second part of the sixth argument is not logical. Even if MEC’s liability was several and not joint, it would still have made sense to join ACL as a defendant or third party if ACL was also liable as MEC would not know how the court would apportion liability between MEC, Chee Seng and ACL. It seems to me that the real reason why MEC did not join ACL as a party is that it did not believe that ACL was liable.

In MEC’s further submissions, it argues that if it had known that Chong’s claim was for joint liability, it would have carried out discovery and interrogatories to obtain documents and facts pertaining to the issue of joint liability. It adds that counsel could also have asked more questions in cross-examination of Chong, of MEC, and of Chee Seng.¹

I do not accept that MEC was...