Chong Kim Beng v Lim Ka Poh t/a Mysteel Engineering Contractor and others

• Jurisdiction: Singapore
• Judge: Chiah Kok Khun
• Judgment Date: 04 June 2014
• Neutral Citation: [2014] SGDC 201
• Court: District Court (Singapore)
• Hearing Date: 22 October 2013,13 February 2014,20 November 2013
• Docket Number: District Court Suit No. 1801 of 2012/K
• Plaintiff Counsel: N Srinivasan and Belinder Kaur (M/s Hoh Law Corporation)
• Defendant Counsel: Bernard Doray (M/s Bernard & Rada Law Corporation),Kelvin Lim (M/s Kelvin Lim & Partners)
• Published date: 17 June 2014

District Judge Chiah Kok Khun: Introduction

When a worker is sent by his employer to work at a worksite controlled by the occupier of the worksite, who is responsible for the safety of the worker? If both the employer and the occupier are to be responsible, is the nature of their respective responsibilities identical? These questions arise from the present case.

Chong Kim Beng (“Chong”), a Malaysian, was employed as a welder by Mysteel Engineering Contractor (“MEC”) sometime in 2011. He was deployed by MEC to work for Chee Seng Engineering Works Pte Ltd (“Chee Seng Engineering”) at a workshop at 3 Tuas Drive (“the work site”). On 16 May 2011, Chong’s right hand was injured by the blades of a blower fan whilst working at the work site.

What are the parties’ respective positions?

Chong claims against the 2 partners of MEC (1st and 2nd Defendants) and Chee Seng Engineering (3rd Defendant) for loss and damage suffered as a result. Chong says that the Defendants have not provided him with a safe system and place of work.¹

The Defendants do not dispute that Chong was injured as a result of the accident. MEC admit that they were the “work-permit” employers of the Plaintiff.² Chee Seng Engineering does not dispute it was the occupier of the premises in question.³

MEC’s case is that whilst they were the work permit employers of Chong, their only role was to provide workers to Chee Seng Engineering. They exercised no care and control over Chong. Their case is that the blower had no cover and Chong had tried to shift it. The blower had started turning and his hand was caught in the blades.⁴ In other words, Chong’s injuries were caused by himself and/or by the negligence of Chee Seng Engineering.

Chee Seng Engineering’s case is that Chong’s injury was caused by his own negligence and to “a certain extent” that of his employers, MEC.⁵ Its case is that Chong was shifting the blower when his hand was caught by the blades. In its version of how the accident happened, the blower fan had a cover and it was turning when Chong handled it.

Issues

The issues in this case are therefore: Are MEC liable for Chong’s injuries; and if so to what extent is their liability? Is Chee Seng Engineering liable for Chong’s injuries; and if so to what extent is its liability? In the event that there is liability on the part of the Defendants, or either of them, was there any contributory negligence on the part of Chong?

How did the accident happen?

MEC’s case on how the accident happened is based entirely on what was told to them. Neither of the partners of MEC was at the worksite at the time of the accident. They did not call any witness to support their version of the accident. Their version was based on what was told to Kang Heng Chai (“Kang”), the safety supervisor of MEC. Kang in turn related what he heard to Choo Wooi Chin (“Choo”) the 2nd Defendant. Kang said he was informed by one Fei Long of Chee Seng Engineering that Chong was involved in an accident. He was told that Chong had tried to move the uncovered blower while the electricity was off but the blades turned suddenly thus injuring Chong. ⁶ Kang repeated what he had heard to Choo.⁷ MEC also rely on a letter dated 16 May 2011 from Chee Seng Engineering which stated its version of how the accident happened (“16 May letter”). Choo also states that Chong had told him how the accident happened, when he visited at the hospital after the accident.

The first difficulty with MEC’s case is therefore that it is based entirely on hearsay. This difficulty is aggravated by the fact that there is serious doubt on the existence of the person called Fei Long. MEC said that he was with Chip Seng Engineering. However, Chip Seng Engineering denies that there was such a person.⁸ Nothing else is known about him. The further difficulty concerns the evidence of Kang himself. Kang gave evidence in court that Fei Long had told him in April 2011 that Chip Seng Engineering needed MEC to apply for a work permit for Chong as Chip Seng Engineering could not admit any more foreign workers. MEC agreed to help in this regard. However, upon further cross examination by counsel, Kang admitted that he only started work for MEC a year after the accident.⁹ This revelation puts into question why Fei Long would tell Kang about the accident, and how it happened, when Kang was not working at MEC at that time.

In any event, MEC’s own case has always been that they did not witness the accident and that they only knew of what happened from what was told to them. MEC reiterated this position in its closing submissions.¹⁰ As for what was purportedly said to Choo at the hospital by Chong about how the accident happened, this was denied by Chong. What is significant is that when MEC filed its i-report dated 18 May 2011 to MOM on the accident, it chose to rely on the 16 May letter from Chee Seng Engineering. Neither the version from Fei Long, nor the account said to be given by Chong in hospital was reflected in the i-report. In fact the i-report is word for word that of the 16 May letter from Chee Seng Engineering.

Further, the peculiar feature in MEC’s version of how the accident happened is that the fan blade suddenly started turning when Chong was moving it. In the AEICs of both its witnesses, MEC’s case is stated as “... the electricity of the blower was off but for reasons unknown, the power suddenly came on, causing the Plaintiff’s hand to be caught in the blower, resulting in injury.”¹¹ There is however, no evidence adduced as to why the blades would suddenly turn, when the electricity is said to be “off”, and would do so just when Chong was handling it.

Chip Seng Engineering’s case on the other hand, is that Chong shifted the fan without turning the electricity off. There was a cover to the blower but Chong had incorrectly handled the blower, resulting in his hand been caught in the blades. The immediate difficult with this version is the objective evidence in the form of the extent of the injuries suffered by Chong. It is not disputed that Chong’s right index and middle fingers, as well as his right wrist was fractured. Therefore, the entire hand of Chong would have come into contact with the blades. This would not have been possible with the cover on. In fact, the very purpose of the cover was precisely to keep a person’s hand out of the way of the blades. Chip Seng Engineering’s sole witness is Cheng Soo Sang (“Cheng”), its supervisor. Cheng in fact had in a letter dated 16 May 2011 to MEC stated that Chong’s “whole hand” was caught by the blower.¹² Cheng however in his AEIC said that Chong did not handle the blower correctly whilst trying to shift it. Chong was injured when he held the blower by the putting his hands on each side of the blower.¹³ Clearly, this is inconsistent with the extent of the injury (which is not disputed). The wrist of the Plaintiff was fractured. The cover shown by Chee Seng Engineering in court and said to be similar would have admitted only the fingers, and not the entire hand. Moreover, if the blades were to hit the hands of a person trying to lift the blower with both hands holding the sides, the point of impact would be the fingers. Chee Seng Engineering did not address these inconsistencies with the injury sustained, but instead brushed them aside in paragraph 53 of its closing submissions.

Cheng said that he witnessed the accident. He said in his AEIC and the 16 May letter that he saw Chong shifting the blower and his whole hand getting caught. In court however, it was revealed that he was more than 10 m away from Chong when the accident happened. He saw Chong holding the blower but did not see the accident happen. He only knew that Chong was injured when he was informed by a foreman after Chong was sent to the hospital.¹⁴ This is astounding as Chong’s fingers and wrist were fractured by the moving blades and no reason was given why Cheng did not know immediately at the scene that Chong was injured. Cheng also said that he did not go the Chong’s assistance after the accident. This again is unusual given that he was the supervisor at the worksite. The inference from the above is that it is more likely than not, that Cheng was not present when the accident happened.

Chong’ case is that he was welding one side of an I-beam when he wanted to move to weld the other side. As he got up he accidentally hit the blower which was behind him. It toppled and when he reached out with his right hand, it was caught in the turning blades. He gave a few variations of how the accident happened in his statement of claim, his AEIC, his medical report and his testimony in court. In all the versions however, he is consistent that he did not move the blower. He had injured himself when he tried to catch the blower as it fell. He was also consistent that the blower was behind him. Whilst he was uncertain exactly where the blower was behind him, this is unsurprising as he was working on the I-beam and would have to move about to carry out his work on it.

Taking into account the testimonies of all the witnesses and on the totality of the evidence, I find on a balance of probability that Chong was injured when he reached out as the blower toppled behind him. He knocked against it as he stood up to shift his working position. The blower had no cover at the time of accident and he sustained the injuries to his fingers and his wrist.

What is the liability of Chee Seng Engineering?

Chong took instructions for his work from Chee Seng Engineering on a day to day basis, throughout the 6 days he was working at the site.¹⁵ This was not challenged by Chee Seng Engineering in court. It also does not dispute that it was the occupier of the work site. Clearly the activity that Chong undertook was under the control of Chee Seng Engineering when he was working at the work site.

Only Chee Seng Engineering’s workers were doing the steel work at the...