Jurong Primewide Pte Ltd v Moh Seng Cranes Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 21 January 2014
• Date: 21 January 2014
• Docket Number: Civil Appeal No.4 of 2013
• Court: Court of Appeal (Singapore)

Jurong Primewide Pte Ltd

Plaintiff

and

Moh Seng Cranes Pte Ltd and others

Defendant

[2014] SGCA 6

Sundaresh Menon CJ

,

V K Rajah JA

and

Quentin Loh J

Civil Appeal No.4 of 2013

Court of Appeal

Tort—Negligence—Breach of statutory duty—Whether breach of statutory duty gave rise to a tort—Essential factors—Relevant legal considerations in assessing existing tortious duty

Tort—Negligence—Co-existence of tortious duty with contractual duty

Tort—Negligence—Contributory negligence—Apportionment

Tort—Negligence—Crane collapsed at a construction site—Whether main contractor liable in negligence to crane owner—Whether subcontractor also liable in negligence to crane owner

Tort—Negligence—Occupier's duty—Identity of occupier

The appellant, Jurong Primewide Pte Ltd (‘JPW’) was the main contractor of a development at a worksite. The third respondent, MA Builders Pte Ltd (‘MA’) had various subcontracts with JPW to carry out structural, architectural and external works on the worksite. The second respondent, Hup Hin Transport Co Pte Ltd (‘Hup Hin’), had a rental agreement with JPW to supply cranes to the worksite (‘crane supply contract’), and a hiring contract with Moh Seng Cranes Pte. Ltd. (‘Moh Seng’), to hire Moh Seng's mobile cranes whenever required.

MA made a request to JPW for a mobile crane to lift some steel rebars. In turn JPW requested Hup Hin to deliver a mobile crane to the worksite the next day. As Hup Hin did not have any cranes immediately available for hire, Hup Hin hired one from Moh Seng. The next day, one Lian Lam Hoe (‘Lian’), Moh Seng's employee, drove the crane to the worksite. Upon arrival, he was directed by the lifting supervisor employed by MA (‘Lifting Supervisor’), to park the crane at a designated location at the worksite. Lian raised concerns that the designated location would be unable to bear the weight of the crane. The Lifting Supervisor assured Lian that the ground comprised of hard flooring which could safely support the crane's weight. Lian continued to harbour concerns and conveyed this to JPW's Safety Officer. After conferring with the Lifting Supervisor, JPW's Safety Officer reassured Lian that the ground was safe. Lian then deployed the crane in accordance with the Lifting Supervisor's instructions. During the lifting operation, part of the crane collapsed into a concealed man-hole, causing the crane to topple over.

The High Court judge (‘the Judge’) held that the Lifting Supervisor was JPW's representative and that JPW was wholly liable in negligence to Moh Seng for the damaged crane. The Judge also held that no contributory negligence was attributable to Moh Seng and MA. Finally, the Judge dismissed JPW's contractual claim for an indemnity against both Hup Hin and MA. As regards the claim against Hup Hin, the Judge held that the legal basis of the relationship between JPW, Hup Hin and Moh Seng was a tripartite oral contract between the parties (‘oral contract’). The crane supply contract, which contained an indemnity clause, was not incorporated into the oral contract. JPW's claim against MA for breach of the subcontracts also failed. The Judge construed ‘wilful default’ in the indemnity clause to refer to JPW's failure to take reasonable care. Given his earlier finding of negligence on JPW's part, JPW could not claim an indemnity against MA. JPW appealed against the entirety of the Judge's decision.

Held, allowing the appeal in part:

(1) The Lifting Supervisor was not JPW's representative at the material time, but rather MA's representative: at [24] and [28] to [31] .

(2) The parties' operational activities were embraced by the regulatory framework installed by the Workplace Safety and Health Act (Cap 354 A, 2009 Rev Ed) (‘WSHA’) and the relevant regulations (collectively, ‘the WSH Regime’). In this regard, there was no common law tort of careless performance of a statutory duty. The mere presence of a statutory duty did not automatically give rise to a concomitant common law duty of care. Rather, the presence of a statutory duty would fall within the rubric of the existing analysis for negligence: at [36] and [37] .

(3) The main purpose of the WSHA was to strengthen the accountability of and impose responsibilities on parties such as the main contractor and subcontractors, so as to ensure a safer working environment at construction sites. These entities had primary responsibility in all areas of safety, given their ‘operational control’ of workplaces. These statutory responsibilities also complemented the very aims of the common law of negligence, which was concerned with ensuring that negligent conduct, within legal limits, would attract corresponding liability. Plainly, contractors and subcontractors were parties whose negligence on construction sites had the most potential to result in fatal, or at least costly, consequences, given their well-placed abilities to foresee and be aware of the various possible mishaps that others without operational responsibilities and control might not be able to identify. It was hard to think of situations where sufficient proximity to give rise to a common law duty of care would not be found to exist due to the control contractors and subcontractors have over the worksite and the on-going activities on it: at [41] .

(4) As main contractor, JPW would prima facie have owed a duty of care to Moh Seng, simply by virtue of being heavily identified as a responsibility bearer by the WSHA. Moreover, JPW was given effective management and control of the worksite; it was undisputed that JPW was an ‘occupier’ as defined under the WSHA. The requirement of legal proximity would be satisfied in the vast majority of occupiers having control of the property which they occupy or the activities carried on there. There was no reason why this should not be the case in JPW's situation. JPW's knowledge of the manhole also made it reasonable foreseeable that serious damage could be caused in a busy worksite with heavy equipment and machinery and gave rise to sufficient proximity between Moh Seng and itself: at [45] , [46] , [47] and [48] .

(5) JPW's argument that a duty of care should not be imposed in situations where there was an established contractual framework, consisting of the hiring contract, the subcontracts and the crane supply contract was unpalatable from a legal policy point of view. The presence of the WSH Regime also altered the weight which was to be put on the parties' contractual arrangements especially with regard to the safety measures which the WSH Regime was concerned with: at [49] and [50] .

(6) Industry standards should be taken into account in assessing the standard of care. The industry standard provided by the Singapore Standard SS 536 2008 Code of Practice (‘the Code’) was applicable here. So were the stipulations under the WSHA: at [43] .

(7) As main contractor, JPW had the responsibility to ensure that hazards such as manholes were identified properly through site surveys, and then to undertake ground improvements to ensure that those underground hazards did not continue to remain hazardous. Measures to reduce those risks could not be taken lightly and the responsibility to do so could not be abrogated. JPW had unjustifiably failed in this duty. JPW was therefore liable in negligence to Moh Seng for the damage caused to the crane: at [53] .

(8) As a subcontractor, a prima facie duty of care was owed by MA. There were also other factors which pointed towards a duty of care owed by MA to Moh Seng: (a) the lifting operation that caused the operation was within MA's scope of work; (b) MA knew about the manhole as well; and (c) MA was contractually responsible and deemed fully informed of the conditions at the worksite. As the Lifting Supervisor was under the employ of MA at the material time, his actions also needed to be assessed: at [54] .

(9) As a key person in the lifting operation, the Lifting Supervisor had breached the standards set out in the Code. He had a non-delegable responsibility to ensure that the ground conditions were safe and measures taken to address the unsatisfactory conditions. The Lifting Supervisor also appeared to be conscious of the manhole. Therefore, it was all the more astounding that he failed to take the necessary precautions: at [63] and [64] .

(10) MA was liable in negligence. The duty of care owed to Moh Seng was breached by MA's unjustifiable failure to deal with the manhole in a way that would enhance and ensure the safety of the worksite. MA could not expect to abrogate from these duties by simply pointing to JPW as main contractor as the operation in question was within MA's scope of work: at [66] .

(11) The Judge's finding of an oral tripartite contract was problematic because such an interpretation would have effectively gone against the clear intentions of the parties as expressed in the two written contracts. The corollary of not being bound by the terms of the two written contracts would be a resultant vacuum apropos the remedies available to JPW as the oral contract would not have incorporated any of the provisions addressing the situations addressed in the written contracts. Moreover, there was nothing in either contract which expressly precluded Hup Hin from supplying a crane not owed by itself to JPW and hiring out a crane supplied by Moh Seng to another party: at [72] to [74] .

(12) MA did breach the subcontracts. As the Lifting Supervisor was MA's representative when the accident happened, MA did breach the workplace safety and health requirements under the subcontract due to the Lifting Supervisor's lapses: at [79] to [84] .

(13) As both JPW and MA were liable in negligence to Moh Seng and as MA did breach the subcontracts entered into with JPW, an apportionment of 60% to JPW and 40% to MA was just in the circumstances. As the main contractor and occupier of the worksite, JPW had to bear the bulk of the responsibility for...