Lu Bang Song v Teambuild Construction Pte Ltd and Another and Another Appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 03 March 2009
• Neutral Citation: [2009] SGHC 49
• Court: High Court (Singapore)
• Published date: 09 March 2009
• Citation: [2009] SGHC 49
• Plaintiff Counsel: Liu Shiu Yi and Belinder Kaur (Hoh Law Corporation)
• Defendant Counsel: Ramesh Appoo (Just Law LLC)
• Subject Matter: Employment Law,Tort
• Year: 2009

3 March 2009

Chao Hick Tin JA:

Introduction

1 These were two connected appeals brought against the decision of the District Judge (“the DJ”) in relation to a claim for damages for personal injuries which arose out of an industrial accident. The DJ found the plaintiff, the injured employee, 20% liable for the accident and the defendants, the employers, 80% liable.

2 Both parties, being dissatisfied, had appealed against that decision to the High Court. To avoid confusion and for the sake of convenience, the plaintiff in the court below will hereinafter be referred to as “Lu”, the first defendant as “the First Employer”, the second defendant as “the Second Employer” and the two defendants collectively as “the Employers”. At the conclusion of the hearing of the oral arguments, I was satisfied that Lu had not proven that the Employers were negligent for the accident. Accordingly, I dismissed Lu’s appeal and allowed the Employers’ cross-appeal. I now give my reasons.

Summary of facts

3 Lu is a Chinese National who was 36 years old at the time of the incident. At all material times, he was working as a construction worker at the worksite at 12 Jalan Pasir Ria where three units of three-storey terrace houses were being built. The First Employer was the subcontractor for the construction project and the Second Employer was the main contractor and occupier of the worksite. However, nothing in the action, or in these appeals, turned on the different capacities of the Employers. The accident occurred as Lu was discharging pre-mixed concrete from a metal bucket at the worksite.

4 On 17 January 2007, Lu was assigned by his foreman, Sam Tan Lwoi (“the Foreman”), to perform concrete casting work on the roof of the corner terrace unit with a group of seven to eight co-workers.

5 The work involved the pouring of pre-mixed concrete into formworks. The said concrete was delivered to the worksite by trucks and loaded into buckets which were hoisted up by a crane to the formworks. The workmen would pull a lever on the bucket to release the concrete through a funnel at the bottom of the bucket. It was then Lu’s task to ensure that the concrete filled the formwork without any air pockets. Lu and his co-workers carried out this task throughout that day.

6 At around 1800 hours, concrete casting work on the roof stopped because the concrete was considered too wet and Lu and his colleagues had to wait for it to harden. They then decided to work on the boundary wall instead. Three of Lu’s colleagues came down from the roof to the third storey where the next load of concrete was to be delivered for the boundary wall.

7 As the crane lifting the bucket was apparently not long enough to reach the boundary wall, the signalman, Chen Wen Ming (“Chen”), directed the crane operator to position the bucket over an area near the boundary wall enclosed by scaffolding. The intention was that upon the release of the pre-mixed concrete at that spot, the workmen would then use shovels to scoop the concrete from the floor into the formworks for the boundary wall.

8 Shortly after Lu’s three co-workers came down from the roof, Lu also went down to the third storey, leaving Liu Weifa (“PW2”), another co-worker, on the roof. Upon reaching the third storey, however, Lu found that his three colleagues, who had come down earlier, were not there. The Foreman, who had also come down to the third storey to see that the bucket was positioned in the area where it was to be discharged, had by then gone down to the ground floor to sign off the time-card for the driver of the cement truck so that the latter could leave the worksite.

9 Upon seeing that the crane (which was being directed by Chen) had already positioned the bucket over the spot where the concrete was to be discharged, Lu proceeded to enter the enclosed area and pulled the lever behind the bucket to release the concrete. The force of the concrete as it was being discharged from the funnel at the bottom of the bucket caused the bucket to swing towards Lu. The top of the bucket hit Lu in the head while the lever hit him in the chest. As a result, Lu was knocked backwards into the scaffolding behind him.

10 PW2 rushed down from the roof and pushed the bucket away. At almost the same time, the three co-workers who had earlier gone down from the third storey came back. They also assisted Lu.

The pleadings and the decision below

11 The two main bases of claim which Lu had pleaded in the statement of claim against the Employers were as follows:

(a) The Employers’ alleged failure to comply with r 220 of the Factories (Building Operations and Works of Engineering Construction) Regulations (Cap 104, R 8, 1999 Rev Ed) (“the Regulations”) which stated that “[l]oads which have a tendency to swing or turn freely during hoisting shall be controlled by a tag-line”.

(b) The Employers’ alleged failure to assign other workers to hold onto the bucket while Lu was opening the funnel at the bottom of the bucket to discharge the pre-mixed concrete.

12 In arriving at his decision as set out in his grounds of decision (see Lu Bang Song v Teambuild Construction Pte Ltd [2008] SGDC 236 (“the GD”)), the DJ did not rely on Lu’s first allegation that the accident had been caused by the Employers’ failure to comply with r 220 of the Regulations. Lu did not pursue this line of argument at the trial. Neither did he take up this point on appeal. Accordingly, Lu’s pleaded case was reduced to the sole allegation that the Employers had failed to assign other workers to hold onto the bucket as Lu was discharging the concrete and that was the cause of the accident.

13 It should, however, be noted that the DJ had, in the GD, chosen to base his decision on the following additional grounds (the GD at [34]-[37]):

(a) Lu was the only employee who actually tried to do his job while his co-workers, who were supposed to have been helping him, all failed to do so or took a brief break.

(b) Lu’s three co-workers all chose not to help discharge the concrete but instead decided to all go and fetch shovels, a task which did not require all three workmen.

(c) Chen, the signalman, did not offer any assistance to Lu, even though he was on the third storey with Lu.

(d) The lack of reaction from both PW2 and Chen when Lu was attempting to discharge the said concrete on his own was an indication that the danger was not as obvious as the Employers sought to portray.

14 These grounds, however, did not form any part of Lu’s pleaded case. As stated, his pleaded case was that insufficient workers were assigned to assist him in discharging the concrete from the bucket. It was not that the co-workers assigned by the Employers were in dereliction of their duties and that the Employers were thereby vicariously liable for those workers’ failure. Further, and crucially, no questions relating to the aforesaid grounds were put to the Employers’ witnesses in cross-examination. Understandably, because these grounds were not part of the pleaded case, the three workers were not asked by the Employers to give affidavits of evidence-in-chief or called as witnesses. Clearly, the Employers were not given an opportunity to respond to these unpleaded grounds which were accepted by the DJ in coming to his decision.

15 Indeed, in oral submissions on appeal, counsel for Lu even attempted to introduce yet another new ground to impose liability on the Employers. Counsel argued that the Foreman had been negligent in the conduct of his duties at the worksite, and that, accordingly, the Employers should shoulder full responsibility for the accident. Counsel put across the following question for the court’s consideration: “Could the Foreman have done something?” Again, the Employers did not call upon the Foreman to testify because nothing was alleged against him in the pleadings.

16 It is trite law that it is wrong for a judge to decide a matter on grounds which were not part of either party’s pleaded case: see Loy Chin Associates Pte Ltd v Auto Trading Pte Ltd [1991] SLR 755 at [19]. As Rajendran J,stated in MFH Marine Pte Ltd v Asmoniah bin Mohamad [2000] 4 SLR 368 (“MFH Marine Pte Ltd”) at [14]:

In taking that approach, the learned DJ was, as he indicated in his judgment, motivated by a desire not to allow poorly drafted pleadings [to] deprive a party of his rights. That motivation is laudable but it has to be balanced against the requirement in our system of justice that issues for determination by the court should be carefully framed and all parties should have the opportunity to address the court on those issues before the court adjudicates thereon. It would be apposite in this context to quote Sir Charles Mathew CJ in Haji Mohamed Dom v Sakiman [1956] MLJ 45 where the learned CJ stated:

I think it is clear that a Judge is bound to decide a case on the issues on the record and if there are other questions they must be placed on the record …

The same sentiment was echoed by Sharma J, albeit in stronger language, in Janagi v Ong Boon Kiat [1971] 2 MLJ 196 where he said:

A statement of claim and the defence (together with the reply, if any) constitute the pleadings in a civil action. It is on the examination of the pleadings that the court notices the differences which exist between the contentions of the parties to the action. In other words the matters on which the parties are at issue are determinable by an examination of the pleadings. An issue arises when a material proposition of law or fact is affirmed by one party and denied by the other. The court is not entitled to decide a suit on a matter on which no issue has been raised by the parties. It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact it is not proper for the court to displace the case made by a party in its pleadings and give effect to an...