Lim Seow Wah and Another v Housing & Development Board and Another

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 27 December 1990
• Neutral Citation: [1990] SGHC 114
• Docket Number: Suit No 9099 of 1984
• Date: 27 December 1990
• Published date: 19 September 2003
• Year: 1990
• Plaintiff Counsel: Narayanan Vijay Kumar (Vijay Perumal & Jeremiah)
• Citation: [1990] SGHC 114
• Defendant Counsel: Lawrence Chua (Lawrence Chua & Partners)
• Court: High Court (Singapore)
• Subject Matter: Fatal accident,Death,Damages,Trespasser,Loss of earnings for lost years Deceased aged 18 years,Tort,ss 8 & 12 Civil Law Act (Cap 30, 1970 Ed),Whether occupier took sufficient measures to deter trespassers,Whether occupiers owe duty of care to trespassers

Cur Adv Vult

This is an action for damages made under ss 8 and 12 of the Civil Law Act (Cap 30, 1970 Ed) in relation to the death of one Lim Kim Tong (LKT) following an accident on 19 December 1981 at a construction site which was, at the material time, occupied by the second defendants. The claim against the first defendants (who were the owners of the site) was, by consent, discontinued at the conclusion of the hearing of this action.

The second defendants were building contractors who were constructing a 25-storey block of flats (the building) for the first defendants. The site of the building was bounded on one side by a large canal, viz the Alexandra Canal and on the opposite side by Ganges Road, and on one side by a school, viz the Delta West School, which was fenced off from the site, although there was a gate leading into the site, and on the opposite site by another road, viz Delta Road.

On the date of the accident, the second defendants had already completed the entire structure of the building and were in the course of hacking the uneven walls in preparation for plastering them. During the construction of the building a safety net had been strung across the walls to catch any falling stones and debris. A gondola was used to hack the 25 floors of the building. It was hanging beside the wall on the 14th level at the time of the accident. Also, during construction, the public was prevented from having access to the works by a wooden fence or hoarding. Both the safety net and the fence was also taken down after the completion of the structure.

There was located on the ground floor of the building at the material time a coffee stall. This stall was operated by a licensee of the second defendants from the beginning of the construction works to cater to the needs of the workers. There is a conflict of evidence as to whether members of the public were disallowed from buying drinks and food from this stall. The plaintiffs have produced three witnesses who testified that members of the public had full access to the stall and frequented the stall as it was the only coffee stall within the surrounding area. The second defendants` witness, the supervisor, said that the stallholder was allowed to sell drinks and/or food to the workers and no one else. Having heard the witnesses, I believe the evidence of PW1 and PW2 and find that there was no restriction whatever against the stallholder selling drinks and food to any person who patronized it. The coffee stall was accessible to members of the public. There was no conceivable reason for them to do so since the second defendants claimed that they had put up adequate fencing/hoarding to prevent members of the public from going into the construction site. In any case, the important point was whether at the material time, the site and the coffee stall were accessible to the public. In my view, the evidence clearly establishes that both were accessible to the public.

The question is whether the second defendants were negligent as regards LKT, who was a member of the public. LKT was then living at Block 79, Indus Road which was situated next to the building site. He was then 18 years old. His friend, Lim Hang Huat (PW2), testified that on the afternoon of 19 December 1981 at about 1pm, he and LKT went to a nearby kampong to catch spiders. It began to rain about half an hour later. They wanted to look for shelter in the building as well as have a cup of coffee. They ran to the building, went under it on the ground floor on one side of it and continued to run towards the coffee stall. To reach the coffee stall by the most direct route, they have to cross an open space between two sections of the building. As they were crossing this space, LKT who was running ahead, was struck by something falling from above. PW2 heard the sound of a stone or a lump of cement. LKT fell on the ground. Something also fell on PW2`s thigh but he was not injured. LKT began to bleed and appeared unconscious. PW2 dragged him into the covered section of the building. The Indian stallholder and some workers came to look. PW2 ran to inform PW1, the father of LKT.

PW1 testified that upon being informed of the accident, he ran to the site. He found LKT lying on the ground and bleeding. It was raining heavily. He carried his son to the side. LKT was conscious and `struggling` and shouting that someone threw a stone at him. Later the ambulance arrived and took him to hospital. He fell into a coma in hospital and died on 25 December 1981.

The post-mortem report on LKT disclosed that he died from a fracture of the skull. His skull had `a large burr hole at right parietal bone 8 x 7 cm. There was a fracture of the right temporal bone 8cm with extradural haemorrhage.` The coroner found and I agree with him that the injury was caused by a hard object falling on the head of LKT.

I also find as a fact from the evidence adduced by the defence witness that the hard object was probably a stone or a lump of hardened cement which had fallen from the side of a wall or the gondola which was hanging in the air next to the wall. The profile of a `burr hole` in the skull would suggest, most likely, a piece of hardened cement. Whatever it was, it either came off the wall or fell from the gondola. I have already mentioned that at this time the defendants were hacking the uneven walls of the building, and it may therefore be inferred that the falling object was a lump of uneven hardened cement.

The next issue of fact on which I make a finding is that on the evidence adduced before me there was insufficient reason for the second defendants` workers to remove the safety net in order to do the hacking work. DW2, the site foreman, testified that the net was removed because it impeded access to the gondola. I cannot agree. He was unable to explain why the net could not have been strung up in a way which allowed access to and from the gondola. In fact, he said that the safety net was taken off because it was their practice to do so. If the netting had not been taken off, this particular tragedy would not have happened. I think that the workers failed to appreciate the hacking work would pose a risk of injury to members of the public by falling lumps of cement.

It was also a fact in issue whether the defendants had placed warning signboards on the building to warn the public to keep out of the site. The plaintiffs called two witnesses to testify on this issue. One of them (PW4), the brother-in-law of the deceased,...