Lee Swee Chon v Kiat Seng Metals Pte Ltd

• Jurisdiction: Singapore
• Judge: George Wei J
• Judgment Date: 31 January 2018
• Neutral Citation: [2018] SGHC 22
• Court: High Court (Singapore)
• Docket Number: Suit No 1076 of 2016
• Published date: 15 November 2018
• Year: 2018
• Hearing Date: 27 June 2017,28 November 2017,28 June 2017,10 October 2017
• Plaintiff Counsel: Han Hean Juan (Hoh Law Corporation)
• Defendant Counsel: Eu Hai Meng and Lee Jia En Gloria (United Legal Alliance LLC)
• Subject Matter: Tort,Negligence,Contributory negligence
• Citation: [2018] SGHC 22

George Wei J: Introduction

This is a negligence action arising from a workplace accident in which a heavy stack of aluminium sheets fell on the plaintiff, Lee Swee Chon (“the Plaintiff”). As a result of this accident, the Plaintiff suffered injuries to his left thigh and back.¹

The present suit was bifurcated and I heard the trial on liability. The principal issues in dispute are whether the defendant, Kiat Seng Metals Pte Ltd (“the Defendant”), breached its duty of care as an employer to provide a safe work environment to the Plaintiff, and whether (and if so, to what extent) the Plaintiff was contributorily negligent.

Background Dramatis personae

The Defendant is a local company that supplies, delivers and deals with sheet metal. It operates at and manages a warehouse located at 7030 Ang Mo Kio Avenue 5 #01-20 Northstar @ AMK Singapore 569880 (“the Site”).² Lim Gim Oo (“Lim”) is a director of the Defendant who works at the Site.³

The Plaintiff was employed by the Defendant as a lorry driver and deliveryman. He was 54 years old at the time of the accident and had been working in this position for about 15 months.⁴

The Plaintiff had a co-worker, Md Halfizi Bin Hassan (“Hassan”), who had been employed by the Defendant as a sheet metal (delivery) worker for about four years prior to the date of the accident.⁵

It appears that aside from Lim, the Defendant had a total of four persons working at the premises: the Plaintiff, Hassan, and two office assistants.⁶

The accident

On 5 December 2014 at about 10am, the Plaintiff and Hassan were scheduled to leave the Site to make deliveries of aluminium sheets to customers. The Plaintiff had completed loading his lorry with the aluminium sheets. Hassan then asked the Plaintiff to help him to retrieve an aluminium sheet from a stack of aluminium sheets that was leaning horizontally against the wall in an upright position. The aluminium sheets were about 2.44m in length and 1.22m in width, and ranged from 3mm to 1cm in thickness.⁷ Each millimetre in width of a standard-sized aluminium sheet weighed about 8kg.⁸ In other words, a sheet of 5mm width would weigh about 40kg.

The Plaintiff supported the stack of aluminium sheets while Hassan flipped through the stack looking for a sheet with the dimensions he was looking for. As Hassan continued to flip through the stack, the weight that was resting on the Plaintiff increased such that the Plaintiff could no longer support the aluminium sheets he was supporting.⁹

The aluminium sheets subsequently fell onto Hassan and the Plaintiff, who landed on a pallet on the floor beside him.¹⁰ According to the Plaintiff, the aluminium sheets weighed about one tonne (or 900kg) in total.¹¹ A few warehouse workers in the vicinity heard his cries for help and helped to lift up the aluminium sheets in order to free him.¹²

The Plaintiff suffered injuries to his left thigh, back and head. He made his way to Lim’s office to inform him of the accident, and was conveyed to the hospital for immediate medical attention and treatment.¹³

The present suit

On 20 November 2015, the Plaintiff commenced the present negligence action against the Defendant, seeking: general damages, including damages for the injuries sustained, pain and suffering, loss of amenities, loss of future earnings, loss of earning capacity, and the cost of future medical and transport expenses; special damages, including medical and transport expenses, and pre-trial loss of earnings; and interest, costs and further relief.¹⁴

The action was bifurcated and I heard the trial on liability on 27 and 28 June 2017. Only two witnesses, the Plaintiff and Lim, testified.

On the first day of trial, I visited the Site to get a more accurate perspective of the premises and the aluminium sheets in question. This had been suggested to me by both sides’ counsel as an alternative to bringing a bulky sample aluminium sheet to court for my viewing.¹⁵ During my visit of the Site, I was shown the “balance stack” which comprised loose aluminium sheets of varying thickness, and was leaning against the wall in the same way as it was prior to the accident.¹⁶ There were metal clamps installed to hold both sides of the balance stack in place,¹⁷ but they had to be removed whenever a worker flipped through the balance stack to search for an aluminium sheet.¹⁸ It is apparent that many aluminium and/or metal sheets were also stored horizontally (lying flat) on stacked pallets elsewhere at the Site, arranged according to thickness. It also appears that aluminium sheets that were more than a certain thickness and accordingly which were especially heavy were always stored flat on account of their weight.

Lim, who was present at the Site along with the Plaintiff and both sides’ counsel, demonstrated how a forklift could be used to provide support so that individual sheets could be retrieved from the balance stack more safely. In brief, the forklift could be “parked” in close proximity to the balance stack. The worker could then flip the aluminium sheets so that they rested or leaned against the body of the forklift whilst he was searching for the sheet that was required. The body of the forklift was essentially being used to support the aluminium sheets. Lim’s evidence was that he had informed the Plaintiff (and Hassan) that this was the proper way to support the aluminium sheets in the balance stack during flipping.

Although Hassan was slated to testify as a witness for the Defendant on the second day of the trial, he was unable to attend court as he was hospitalised in Malaysia.¹⁹ A new date was fixed on 10 October 2017 for Hassan to testify. However, Hassan resigned from the Defendant around August 2017 and could not be contacted by counsel for the Defendant. I granted the Defendant’s application to withdraw Hassan as a witness and expunge his affidavit of evidence-in-chief from the court’s record.²⁰

The parties’ cases

The principal issues in dispute are whether the Defendant breached its duty of care as an employer to provide a safe work environment to the Plaintiff, and whether (and if so, to what extent) the Plaintiff was contributorily negligent.

The Plaintiff submits that the Defendant owed a duty of care as an employer to take reasonable care for the Plaintiff’s safety.²¹ As the accident took place in the course of employment, the Plaintiff relies in part on the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“the WSHA”) and the regulations promulgated thereunder to determine the standard of care required of the Defendant.²² The Plaintiff submits that the Defendant breached its duty of care to its employees by storing the balance stack of aluminium sheets in an unsafe manner and by failing to provide a safety rack to store the loose sheets.²³ The Plaintiff argues that the accident and the injuries to the Plaintiff were foreseeable on the Defendant’s part.²⁴ The Plaintiff further argues that the Defendant breached its duty of care as an occupier of the Site,²⁵ and that the Defendant is vicariously liable for the negligence of Lim and Hassan.²⁶

In response, the Defendant takes the position that it did not breach its duty of care owed to the Plaintiff. Lim testified that its employees had been clearly instructed to use a forklift to support the weight of the balance stack when flipping through it to look for aluminium sheets, and not to use their bare hands to support the weight of the sheets. The Defendant further contends that the use of a safety rack was impractical especially given the size of the aluminium sheets in question, and that the use of such safety racks is not common industry practice. Even if it is found to be negligent, the Defendant argues that the Plaintiff was contributorily negligent, such that the amount of damages recoverable is to be reduced according to the Plaintiff’s responsibility for the damage. In the Defendant’s view, an ordinary prudent person who was well aware of the weight of the stack and with the Plaintiff’s experience would not have attempted to support the aluminium sheets with his bare hands.²⁷

I note that the parties were in dispute as to several factual points such as whether it was Lim or an office girl employed by the Defendant who had asked Hassan to retrieve the aluminium sheet he was looking for, and the total weight of the aluminium sheets that had fallen on the Plaintiff.²⁸ However, I do not find these points to be of much significance to the trial on liability. I simply note that I accept that although Lim was not the one who had asked Hassan to retrieve the aluminium sheet in question, Hassan had done so as part of his work for the Defendant. I also accept that that a significant weight had fallen on the Plaintiff such as to cause his injuries. Although it appears that the stack would indeed weigh about a tonne or 900kg, not all of this weight fell squarely onto the Plaintiff’s body. The aluminium sheets were partly in contact with the ground. It would thus be difficult to determine the exact weight that fell on the Plaintiff, or the force or pressure exerted upon him. In any event, this is not an issue that is of much relevance to the present analysis.

Whether the Defendant was negligent

I shall begin with the main question of whether the Defendant was negligent. As I have stated in Chen Qiangshi v Hong Fei CDY Construction Pte Ltd and another [2014] SGHC 177 (“Chen Qiangshi”) at [125], the four-fold test for negligence is trite: (a) the defendant must have owed the claimant a duty of care; (b) the defendant’s conduct must have breached the duty of care by falling below the requisite standard of care; (c) the claimant must have suffered loss; and (d) the defendant’s breach of duty must have been a cause of the claimant’s loss. The framework of the WSHA and its accompanying regulations intersects with the tort of negligence at the first two stages of this inquiry. I...