Ma HongFei v U-Hin Manufacturing Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 30 July 2009
• Neutral Citation: [2009] SGHC 172
• Docket Number: Suit No 128 of 2008
• Date: 30 July 2009
• Year: 2009
• Published date: 04 August 2009
• Plaintiff Counsel: N Srinivasan (Hoh Law Corporation)
• Citation: [2009] SGHC 172
• Defendant Counsel: Joethy Jeeva Arul (counsel instructed by S K Kumar & Associates),Michael Eu Hai Meng (United Legal Alliance LLC)
• Court: High Court (Singapore)
• Subject Matter: Tort,Negligence,Occupier's liability,Duty of care owed by main contractor to workman where workman was employed by subcontractor and not main contractor

30 July 2009 Judgment reserved

Lai Siu Chiu J:

1 This was a claim by Ma HongFei (“the plaintiff”) for personal injuries which he sustained on 5 June 2007, while working on a project called FPSO Mondo for Keppel Corporation (“Keppel”) at No. 49 Gul Road (“the premises”). The plaintiff was employed by U-Hin Manufacturing Pte Ltd (“the first defendant”) who at the material time, supplied workers to BT Engineering Pte Ltd (“the second defendant”) which company is in the business of fabricating offshore oil, gas and petrochemical equipment including pressure vessels. The second defendant was at the material time a subcontractor of Keppel for the construction of an oil rig.

The facts

2 The facts of the case are fairly straightforward. The 29 year old plaintiff arrived in Singapore from China on 29 May 2007. On the morning of 5 June 2007, the plaintiff (who is a skilled electrical engineering technician) was assigned by the first defendant to work for the second defendant at the premises. The plaintiff was directed by his superior to use a grinder to smoothen the rim of a metal cable conduit tray (“the tray”). While he was doing the grinding, the plaintiff would periodically use his hands to feel around the rim of the tray to check for unevenness and/or jaggedness. This was to ensure smoothness of the surface.

3 While the plaintiff was checking the rim of the tray with his left hand, a metal pipe measuring approximately 4m long with a diameter of 22cm (“the pipe”) dropped from above and struck his left index, ring and little fingers which were then on the rim of the tray. The plaintiff was taken to National University Hospital (“NUH”) where his injuries were found to be so severe that all three fingers of his left hand had to be amputated.

4 The first defendant notified the Ministry of Manpower (“MOM”) of the accident on 11 July 2007 for purposes of claims under the Workmen’s Compensation Act, Cap 354 1998 Rev Ed (“the WCA”). The claim based on workmen compensation rates was subsequently assessed at $88,200. However, the plaintiff felt that the sum was too low for the disability he had suffered. Hence, he rejected the same and commenced this suit in February 2008 against both defendants, seeking damages at common law for his injuries. The plaintiff returned to Jiangsu Province, China, after his discharge from NUH and came back to Singapore for the trial. He is currently unemployed.

The pleadings

5 In his statement of claim, the plaintiff alleged that he was a “workman” under the WCA, that both defendants were negligent and had breached their statutory duty inter alia in not ensuring that the pipe spool was guarded or shored to prevent it from falling or collapsing due to work being carried out in the vicinity. The plaintiff contended that the defendants had breached Regulation 19 of the Factories (Building Operations and Works of Engineering Construction) Regulations 1999 (“the 1999 Regulations”). The plaintiff further alleged that the defendants had breached Regulations 4(7), 35(1)(b) and (c), 46(1)(a) and (c), and 46(2)(b) of the Factories (Shipbuilding and Ship-Repairing) Regulations 1995 (“the 1995 Regulations”). It was also alleged that the defendants had failed to provide a safe system and place of work as well as a safe plant or equipment for the plaintiff. The plaintiff claimed special damages he had incurred totalling $13,589.21 which included loss of earnings as of 22 February 2008 at $51.67 per day. He claimed general damages which included loss of pre-trial earnings from 23 February 2008 to the date of trial.

6 The first defendant denied that the plaintiff was a “workman” within the definition of the WCA and put him to strict proof. It contended that the company had been engaged by the second defendant to supply workers to the second defendant and the plaintiff was assigned by the first defendant to work for the second defendant at the premises. The first defendant averred that the plaintiff was working at the premises under the directions, control and management of the second defendant. Consequently, the first defendant denied that it had been negligent or that it had breached its statutory duties and or occupier’s duty.

7 The first defendant further denied it was the occupier of the premises. As such, it did not owe any duty of care at common law or under the WCA to the plaintiff.

8 The first defendant further alleged that the injury and loss sustained by the plaintiff from the accident was caused wholly or contributed to by the plaintiff’s own negligence.

9 The defence of the second defendant similarly put the plaintiff to strict proof of his allegations. The second defendant added that it had engaged the first defendant as its independent subcontractor whose workers remained under the care, control and supervision of the first defendant.

10 The second defendant pleaded that by a letter of indemnity dated 2 January 2007 (“the letter of indemnity”), the first defendant had undertaken to indemnify the second defendant against all claims, costs, actions, suits, loss and other expenses whatsoever for any injury or loss of life or damage to property howsoever caused.

11 The second defendant denied that the provisions of the several regulations relied on by the plaintiff in [5] applied. Instead, it pleaded that s 60(1)(a) of the Workplace Safety and Health Act 2006, Cap 354A (“the Workplace Act”) applied and the plaintiff had no right of civil action.

12 The second defendant further disagreed with the plaintiff’s version of how the accident occurred and referred to and/or relied on the notification of accident made by the first defendant to MOM on 11 July 2007 (“the Notification”) as being an accurate account of the accident.

13 The second defendant added that at the time of the accident, no work was being carried out on or above the pipe as the pipe was waiting for quality control inspection. The second defendant further denied that the plaintiff was entitled to rely on the doctrine of res ipsa loquitur.

14 In the alternative, the second defendant alleged that the plaintiff was negligent and he caused or contributed to the accident inter alia in the following manner by:-

(a)	failing to take reasonable precautions for his own safety;
(b)	failing to exercise care and attention;
(c)	not carrying out his work in a safe and proper manner;
(d)	causing the partially welded spool to crack and to give way while the plaintiff was tightening the pipe clamp support using a hammer and a spanner.

15 The second defendant relied on the letter of indemnity (see [25] below) to issue a notice under O 16 of the Rules of Court (2006 Rev Ed) (viz Third Party proceedings) to claim an indemnity and/or contribution against the first defendant for the plaintiff’s claim.

The evidence

16 Like the first defendant, the plaintiff was the only witness for his case while the second defendant called two witnesses. The trial was only to determine liability with the issue of damages (should the plaintiff succeed) held over to a later date to be dealt with by the Registrar.

(i) The plaintiff’s case

17 The plaintiff’s evidence-in-chief was brief and has been set out earlier in [2] to [3]. In cross-examination by counsel for the first defendant, the plaintiff revealed that it was the first defendant’s director Wong Shiu Hung (“Wong”) who told him on 4 June 2007 to go to the premises to do work for the second defendant together with about ten other workers from the first defendant. At the premises on both days (4 and 5 June 2007), the plaintiff was given instructions by a foreman of the second defendant. The plaintiff was told to put a steel structure on top of a metal structure and to install an electrical wire box on top of the steel structure; the plaintiff was familiar with the work as he had previously done it in China.

18 Cross-examined by counsel for the second defendant, the plaintiff testified that it was a foreman of the first defendant who took him to the premises but that foreman did not give him any instructions or supervise his work. The plaintiff did not know who had installed the pipe that struck the fingers of his left hand. He was unaware that the first defendant was contracted by the second defendant to provide labour to carry out work for Keppel. However, the plaintiff denied he was working at the second defendant’s factory on the two dates in question instead of at the premises of Keppel.

(ii) The first defendant’s case

19 Wong’s testimony on behalf of the first defendant was not helpful as he did not witness the accident but came to know of it later. However, he was the person who lodged the Notification with MOM on behalf of his company, based on information provided by his younger brother Wong Shiu Weng who was the first defendant’s project manager. Wong revealed that his son Wong Peng Lam was the foreman for the Keppel job. He had another foreman called Yoong Chee Tak (whom the plaintiff knew as Ah Tak) who did not give the first defendant’s workers (including the plaintiff) any instructions on 4 or 5 June 2007.

20 Wong said he did not give instructions to the first defendant’s workers. He confirmed that the premises (contrary to what the plaintiff said) were those of the second defendant and not Keppel’s whose shipyard (that of its subsidiary Singmarine) was at No. 55 Gul Road.

21 The first defendant’s supply of labour to the second defendant was pursuant to a Purchase Order no. 31628 dated 15 May 2007 (“the PO”) issued by the latter to the former which stated:

To supply labour, tools & equipment to fabricate & install all the electrical & instrument works on the FPSO Mondo Turret.

Pursuant to the PO, Wong said the first defendant supplied 200 workers to the second defendant comprising of 13 foremen, two supervisors with the rest being ether general workers, fitters or welders.

22 The Notification filed by Wong with MOM (see AB24-25) stated as follows:

A worker of Chinese...