Jurong Primewide Pte Ltd v Moh Seng Cranes Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 21 January 2014
• Neutral Citation: [2014] SGCA 6
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No. 4 of 2013
• Year: 2014
• Published date: 28 February 2014
• Hearing Date: 26 July 2013
• Plaintiff Counsel: Lynette Chew and Gadriel Tan (Stamford Law Corporation)
• Defendant Counsel: Raymond Lye, Cheryl-Anne Yeo and Collen Lim (CitiLegal LLC),Willie Yeo Siew Keng (Yeo Marini & Partners),and David Gan (DG Law LLC)
• Subject Matter: Tort,Negligence
• Citation: [2014] SGCA 6

V K Rajah JA (delivering the grounds of decision of the court):

This appeal relates to a decision by a High Court judge (“the Judge”) who found the main contractor of a construction project at Biopolis Drive/Biomedical Grove solely liable in negligence for the collapse of a crane into a concealed manhole at the worksite. At the hearing, we decided to allow the appeal in part and re-apportion the liability between the main contractor and the subcontractor. We now give the grounds for our decision, which includes discussion of important issues pertaining to the legal responsibility for worksite safety, the relationship between the statutory framework and common law duties and the applicable standard of care.

Facts Parties to the dispute

The appellant, Jurong Primewide Pte Ltd (“JPW”), was appointed by Crescendas Bionix Pte Ltd (“Crescendas”) the main management contractor to build a seven-storey multi-user business park development at a worksite located off Biopolis Drive/Biopolis Grove (“the worksite”).

The first respondent, Moh Seng Cranes Pte. Ltd. (“Moh Seng”), is in the business of letting out lifting cranes for hire. It was the owner of the damaged lifting crane WB 2032L (“crane”) and employer of one Lian Lam Hoe (“Lian”) who was operating the crane when the accident occurred.

The second respondent, Hup Hin Transport Co Pte Ltd (“Hup Hin”), leases heavy equipment, including lifting cranes. It had a rental agreement dated 3 March 2010 with JPW for the supply of cranes to the worksite on a per call basis (“crane supply contract”) and a hiring contract dated 7 August 2008 with Moh Seng to hire Moh Seng’s mobile cranes whenever required (“hiring contract”).

The third respondent, MA Builders Pte Ltd (“MA”), had various subcontracts (viz, the Temporary Works Subcontract dated 13 August 2008, the RC Subcontract dated 30 June 2009, the External Works Subcontract dated 5 January 2010 and the Wet Trades Subcontract dated 13 January 2010) (collectively, “subcontracts”) with the Appellant to carry out structural, architectural and external works on the worksite. The flow chart below helps to illustrate the various relationships:

Background to the dispute

On 10 June 2010, MA made a request to JPW for a mobile crane to lift some steel rebars. JPW in turn then requested a 50-tonne mobile crane from Hup Hin to be delivered to the worksite the next day. MA asserted that they had actually made a request for an 80-tonne mobile crane, not a 50-tonne mobile crane, and received no satisfactory reason from JPW why a 50-tonne crane was ordered instead. JPW disputed this. Nevertheless, as Hup Hin did not have any 50-tonne cranes immediately available for hire, Hup Hin hired one from Moh Seng, on the basis that it would be delivered to the worksite the next morning.

On 11 June 2010, Lian drove the crane to the worksite. Upon arrival, he was directed by Kolanjiapan Sunder, the lifting supervisor (“Lifting Supervisor”) employed by MA, to park the crane at a designated location identified as “CL2” on the sitemap used in the proceedings below. CL2 was the location where the manhole was at. Lian raised concerns with the Lifting Supervisor that the designated location might be unable to take the weight of the crane. The Lifting Supervisor responded by assuring him that the ground comprised of hard flooring that could support the crane’s weight. Lian, nevertheless, continued to harbour concerns about the ground conditions and conveyed this to JPW’s Safety Officer, Kuah Teck Heng (“JPW’s Safety Officer”). JPW’s Safety Officer, after conferring with the Lifting Supervisor, reassured Lian that the ground indeed comprised of hard flooring.¹ Relying on these assurances, Lian proceeded to deploy the crane in accordance with the instructions given by the Lifting Supervisor.

During the course of lifting at CL2, part of the crane collapsed into a concealed manhole in the following manner: while the crane’s left back outrigger was resting near the manhole, the boom of the crane swung from the left front of the crane towards the left back outrigger. The left back outrigger broke through the manhole cover and collapsed into the manhole, causing the crane to topple over. The parties all denied having knowledge of the manhole’s existence at the material time, and the manhole itself was not visible as it had been covered up with layers of brown soil when the accident occurred.

The decision below

The Judge confined his analysis to the following three issues: whether Moh Seng had a claim against Hup Hin in contract/bailment; whether Moh Seng had a claim against JPW and/or MA for negligence; and whether JPW was contractually entitled to be indemnified by Hup Hin and/or MA under their respective contracts with JPW.

On the first issue, the Judge observed in Moh Seng Cranes Pte Ltd v Hup Hin Transport Co Pte Ltd and others[2013] 2 SLR 1 (“GD”) that there was nothing in the crane supply contract between JPW and Hup Hin which obliged Hup Hin to secure cranes for JPW or to provide an unremunerated lifting supervisor for the worksite. He found that the legal basis of the relationship between JPW, Hup Hin and Moh Seng was an oral contract between the three parties (“the oral contract”) for Moh Seng to provide a crane with an operator to JPW on 11 June 2010, with no further role or involvement of Hup Hin save that Hup Hin would pay Moh Seng at the rates provided in the hiring contract. Hup Hin would in turn be paid by JPW at the rates provided in the crane supply contract. This oral contract was implemented by Moh Seng sending its crane, and JPW receiving it at the worksite.

As JPW was not a party to the hiring contract, the general “Terms And Conditions” [emphasis in original] attached to the hiring contract were not incorporated as terms of the oral contract. The Judge also rejected Moh Seng’s claims that there was an implied term in the hiring contract that Hup Hin would assume responsibility for the crane, and that there was a contract of bailment for valuable consideration. As regards the latter claim, the Judge found that the facts in the present case did not point towards the existence of a bailor-bailee relationship. Hup Hin had never received possession of the crane, which was delivered directly by Moh Seng to JPW at the worksite. Moh Seng’s contention that Hup Hin had received constructive possession or control of the crane and then “sub-hired” it to JPW was untenable in light of the factual matrix.

On the second issue, the Judge found that it was “undisputed that the proximate cause of the damage to the crane was the manhole which was concealed at the time of the lifting operations on 11 June 2010” (GD at [24]). He then held that the test in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”) was satisfied in relation to JPW’s liability. Factual foreseeability was established as it was clearly foreseeable that JPW’s failure to take precautions with respect to a known unconcealed manhole could result in damage. Legal proximity was satisfied by the fact that JPW had ordered the crane for lifting works. There were also no policy reasons weighing against the imposition of such a duty of care on JPW. In fact, imposing such a duty would be consistent with the policy reasons underlying the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“the WSHA”). Despite having knowledge about the manhole by 12 August 2008, JPW did nothing about it. MA could not have knowledge about the manhole, as they would never have constructed a washing bay close to the manhole if it was aware that the manhole was nearby. The Judge found that JPW did not take reasonable care to properly mark and cordon off the manhole and direct the subcontractors to take the appropriate action.

The Judge also held that there was no contributory negligence attributable to Moh Seng and MA. Lian had acted reasonably and had fully discharged his responsibility as a crane operator. As to whether MA had contributed to the damage due to its nearby excavation works as the excavated soil would have run off to cover the manhole, the Judge found that the manhole remained concealed even before the excavated soil run-off. MA, therefore, did not contribute to the accident as the excavation work had been carried out without knowledge of the manhole’s existence.

On the third issue, the Judge dismissed JPW’s contractual claims against both Hup Hin and MA. He found that the crane supply contract which contained the indemnity clauses was a bilateral contract between JPW and Hup Hin, and was not incorporated into the oral contract between the three parties. He also found that JPW’s claim against MA for breach of the subcontracts in failing to comply with all workplace safety requirements failed as he had already rejected JPW’s Safety Officer’s evidence that he had instructed the crane to be removed from the washing bay area. The Judge construed “wilful default” as used in the indemnity clause (cl 12.3.4) in the subcontract to refer to JPW’s failure to take reasonable care in the circumstances, which he had earlier established. Hence, JPW had no basis to claim an indemnity from MA.

Appellant’s case

JPW’s main focus in this appeal was on the Judge’s finding that JPW was solely liable to Moh Seng for negligence, without any contribution from MA and Hup Hin. On this issue, JPW disputed a few of the Judge’s factual findings and asserted the following: (a) the Lifting Supervisor was not an agent or representative of JPW, but MA; (b) MA was aware of the existence of the manhole which had been concealed by the soil excavated by MA; and (c) JPW’s Safety Officer had asked for the crane to be removed from the danger area.

Legally, JPW asserted that no duty of care arose as there was no legal proximity: there was no close and direct relationship between JPW and Moh Seng, and the fact that JPW...