Lim Ai Bee v Da-Cin Construction Co Ltd (Singapore Branch) and another

• Jurisdiction: Singapore
• Judge: Sheik Umar Bin Mohamed Bagushair
• Judgment Date: 15 October 2021
• Neutral Citation: [2021] SGDC 227
• Court: District Court (Singapore)
• Docket Number: Suit No 1799 of 2018
• Published date: 22 October 2021
• Year: 2021
• Hearing Date: 12 May 2021,16 March 2021,08 October 2021,16 July 2021,30 July 2021,15 March 2021,11 May 2021
• Plaintiff Counsel: A Rajandran (A Rajandran)
• Defendant Counsel: Vinodhan Guna and Emerick Tan (Tito Isaac & Co LLP),Thomas Lei Chee Kong (instructed) and Yeo Poh Choo Lisa (Cecil Law LLC)
• Subject Matter: Tort,Negligence,Breach of duty,Defences
• Citation: [2021] SGDC 227

District Judge Sheik Umar Bin Mohamed Bagushair: Introduction

The Plaintiff brought this claim against the Defendants for the injury and losses she suffered when she witnessed and heard aluminium bars falling around her as she was walking with her daughter out of her condominium’s lobby on 24 June 2015 (the “Accident”). The aluminium bars had dropped from a gondola (“Gondola”) being operated by the 2nd Defendant’s workers. The 2nd Defendant had been using the aluminium bars to install louvres on the façade of the condominium. The Plaintiff did not suffer any physical injury but as a result of the shock, she says she is now suffering from post-traumatic stress disorder (“PTSD”), nervous shock and/or psychiatric harm.

The 1st Defendant, Da-Cin Construction Co Ltd (Singapore Branch) (“DCC”) was the main contractor of the condominium called Cityscape @ Farrer Park (the “Development”) where the Plaintiff was residing. The 2nd Defendant, 3S Façade (Singapore) Pte Ltd (“3SF”) was engaged by DCC to design, supply and install aluminium rain screen louvres at the Development (the “Works”). Mergui Development Pte Ltd was the developer of the Development (“Developer”).

The trial before me was bifurcated and took place over four days. The sole witness for the Plaintiff was herself. DCC’s sole witness was Mr Liu Wei Chuan (“Mr Liu”) who had no personal knowledge of the Accident, the Works or the matters that transpired before and immediately after the Accident. I should however say that some of 3SF’s witnesses disputed this, asserting that Mr Liu had personal knowledge of the Works, and that he was even at the Development after the Accident occurred.

3SF had a total of four witnesses: Mr Shen Yimin, the Managing Director (“Mr Shen”); Mr Ooi Soon Teong, the Safety Supervisor (“Mr Ooi”); Mr Han Biao, a construction worker (“Mr Han”); and Mr Selvam Satishkumar, the senior designer (“Mr Satishkumar”). Of these four witnesses, only Mr Han was present at the Development when the Accident happened. He was one of the workers on the Gondola. The other worker, Mr Wang Xiao Ping (“Mr Wang”), had left 3SF’s employment after the Accident and was not available to give evidence. It is undisputed that Mr Han did not actually see the exact location where the aluminium bars fell at the lobby as his sight was blocked. Neither was he able to confirm that the Plaintiff was present when the aluminium bars fell, again because his sight was blocked.

The other three witnesses, Mr Shen, Mr Ooi and Mr Satishkumar, were involved in different aspects of the Works. Although they were not present when the Accident happened, they went to the Development after being informed of the Accident.

Background facts

The temporary occupation permit (“TOP”) for the Development was issued in October 2014, and the Plaintiff moved into the Development at or around that period.

Sometime before 6 March 2015, DCC asked 3SF to quote for the Works. On 6 March 2015, 3SF submitted a quotation for the Works for the price of $35,085 (the “6 March Quotation”). The 6 March Quotation specifically did not include the cost of “[n]ecessary insurance including workmen compensation for [3SF’s] workers on site.” According to 3SF, DCC informed them that TOP had been obtained for the Development and requested that the reference to insurance be removed. DCC also asked that 3SF’s price be lowered.

On 8 March 2015, 3SF submitted a new quotation for the Works for the price of $33,117 (the “Quotation”). The Quotation provided that “[a]ccess gondola, electricity and water for out aluminium works will be provided by [DCC] at no cost to [3SF].”

The Quotation was accepted by DCC. A short while thereafter, 3SF built mock-ups for the approval of the Developer’s architect. The mock-ups were approved.

The Works first began on 24 June 2015. A gondola system was needed as the louvres had to be installed on the façade of the buildings. DCC rented a gondola system from 19 June 2015 to 18 July 2015 and provided it to 3SF for its use.

On the afternoon of 25 June 2015, Mr Han and his colleague Mr Wang were in the Gondola, moving up to the 12th floor when the Gondola tilted sideways. 3 pieces of aluminium bars slipped out of the Gondola and landed on the ground. One of the pieces landed on the roof of the lobby (“Roof Lobby”) but the other 2 pieces went through an opening (“Opening”) and landed at the lobby driveway (“Driveway”). It is the Plaintiff’s evidence that at or around 4:30 pm on 25 June 2015, the Plaintiff and her daughter were stepping into the Driveway when she witnessed two aluminium bars fall in front of her.

To give an idea of the Gondola’s location vis-à-vis the Roof Lobby, Opening and Driveway, I set out the photos of the Development below:

Neither the Plaintiff nor her daughter was physically injured. Nevertheless, the Plaintiff was distressed by the falling aluminium bars. She had initially intended to send her daughter to tuition but instead returned home. Before doing so, she informed the security guard of what happened. When the Plaintiff returned home, she told her husband, Mr Wu Min Fook (“Mr Wu”) of what happened.

Mr Shen, Mr Ooi and Mr Satishkumar subsequently arrived at the Development after being contacted by Mr Han. DCC’s representative who had been liaising with 3SF regarding the Works, Mr Desmond Gan (“Mr Gan”), was also at the Development. The Defendants’ representatives discussed the matter and went up to the Plaintiff’s home with the intention of apologising to her. However, the Plaintiff and Mr Wu refused to speak with the Defendants’ representatives.

Parties’ positions Plaintiff’s arguments

It is undisputed that: No notices were put up informing the Development’s residents of the Works. No notices or barriers were put up near the Driveway to warn residents of the Works. No protective barricades or safety coverings were installed at the Opening.

The Plaintiff argued that the Defendants should be jointly and severally liable and that interlocutory judgment should be entered at 100% liability against the Defendants. The Plaintiff argued that the Defendants owed a duty of care to the Plaintiff, as it was reasonably and factually foreseeable that the Defendants’ negligent acts would cause the Plaintiff harm, there was sufficient legal proximity and there was no policy reason to negate the existence of such a duty. The Defendant argued that the existence of a duty of care is consistent with the Defendants’ statutory duties under the Workplace Safety and Health Act (Cap. 354A) (“WSHA”).

The Plaintiff argued that the Defendants breached their duty of care because: They failed to provide any supervision during the installation of the louvres, even though the works were being done at height, and hence failed to ensure that the Works were being carried out in a safe and secure manner. At the time of the Accident, there were no supervisors on site supervising Mr Han and Mr Wang. They failed to deploy or erect safety barricades, cordon affected area, deploy staff to warn residents in the vicinity or place signs or notices to warn residents that the Works were being carried out. 3SF failed to ensure the aluminium bars were secured to the Gondola while it was moving and DCC failed to provide the requisite training to 3SF in the operation of the Gondola. They failed to carry out any risk assessment and implement safety measures.

The Plaintiff argued that the Defendants were in breach of their statutory duties as well. The Plaintiff’s submission is that DCC retained control and management of the worksite and was therefore a “principal” under the WSHA and owed extensive, non-delegable duties. Furthermore, DCC was also an “occupier” under the WSHA and owed extensive duties as well.

As for 3SF, the Plaintiff’s submission is that it too had duties to ensure the safety and health of persons that would be affected by its work, and it failed to comply with those duties.

As for the defences raised by the Defendants, the Plaintiff submitted as follows: In relation to 3SF’s defence that the accident was inevitable because of strong winds that blew the 2 pieces of aluminium bars into the Opening, the Plaintiff argued that there was insufficient evidence to establish the existence of such strong winds at that time. In any event, the defence of inevitable accident is only open to 3SF if it can establish that it was otherwise not negligent at all. 3SF is unable to establish this because, amongst other things, it had been negligent in failing to secure the aluminium bars when the Gondola was moving. In relation to DCC’s defence that it should not be found vicariously liable for 3SF’s actions because 3SF was an independent contractor, the Plaintiff argued that this defence is not open to DCC because some of its duties were non-delegable. Furthermore, even if it could establish an independent contractor defence, it failed to exercise proper care in appointing 3SF and therefore was negligent in the selection of 3SF.

The Plaintiff finally argued that it was entitled to invoke the evidential doctrine of res ipsa loquitur, because the Defendants had disputed how the aluminium bars fell. Whilst DCC says that 3SF was negligent in operating the Gondola, 3SF disputes this and says the Gondola had malfunctioned.

DCC’s arguments

The Defendants accepted that they owed a duty of care to the Plaintiff but they ultimately disputed liability for different reasons.

DCC made the following arguments. First, the Plaintiff failed to discharge her burden of proving that the Accident occurred as pleaded because of the inconsistencies in her evidence. Second, 3SF was an independent contractor and therefore DCC could not be vicariously liable for 3SF’s acts. Third, as TOP had taken place, DCC no longer occupied the Development and did not have control or management of the Development. Fourth, 3SF was wholly...