Md Shohel Md Khobir Uddin v Chen Yongbiao and another

• Jurisdiction: Singapore
• Judge: Audrey Lim JC
• Judgment Date: 12 May 2017
• Neutral Citation: [2017] SGHC 109
• Plaintiff Counsel: Subbiah Pillai (Tan & Pillai)
• Docket Number: Suit No 79 of 2016
• Date: 12 May 2017
• Hearing Date: 03 March 2017,25 January 2017,24 January 2017
• Subject Matter: Contributory negligence,Illegality of plaintiff negating duty of care,Public Policy,Causation,Negligence,Breach of duty,Duty of care,Tort
• Published date: 24 November 2017
• Defendant Counsel: Eu Hai Meng (United Legal Alliance LLC)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 109
• Year: 2017

Audrey Lim JC: Introduction

The plaintiff (“Shohel”) claimed damages for personal injuries suffered as a result of the negligence of the defendants, whilst performing work at a worksite on 21 September 2014 at the instructions of the first defendant, Chen Yongbiao (“Chen”), a director of the second defendant, Dongwu Steel Industry Pte Ltd (“Dongwu Steel”). The defendants denied that Shohel was employed by them on that day or that he was instructed to perform any work. I granted interlocutory judgment for Shohel to the extent of 80% of the damages, with damages to be assessed. The defendants have appealed and I provide my detailed grounds of decision.

Plaintiff’s case

Shohel, a Bangladesh citizen, was a foreign worker who was at the material time engaged by SPG Marine Pte Ltd (“SPG Marine”) under a work permit. He lived in a dormitory and had a room-mate called Sujan, who was also employed by SPG Marine and whom he knew during the time they worked for SPG Marine.¹ On 20 September 2014, Sujan informed Shohel that he had previously done some work for Chen and asked Shohel whether he was interested to do the same. Sujan also informed Shohel that he would be paid $60 for a day’s work, but did not give him any further details about the job.² Since the next day was his day off,³ Shohel agreed.

In the morning of Sunday, 21 September 2014, Shohel followed Sujan to Joo Koon MRT station. There, Chen picked them up and drove them to a worksite at 30 Tuas Road (“the worksite”), at which Dongwu Steel operated. Upon arrival, Chen instructed them on their work, namely to shift some metal plates from inside the worksite to outside the worksite.⁴ Shohel did not talk to Chen directly as his English was poor. However, he was informed by Sujan that he would be paid $60 per day (for eight hours) and overtime.⁵ Whilst carrying a large metal plate with Sujan, Shohel stepped and fell into a “large hole”.⁶ Chen was not present when the accident happened. Shohel was then brought to Westpoint Hospital and was transferred to National University Hospital (“NUH”) on the same day.

Contrary to Chen’s testimony, Shohel stated that upon his arrival at the worksite, Chen did not ask Shohel or Sujan to sign any Visitor Application Form (“VA Form”)⁷ or to remain at the guardhouse to wait for their VA Forms to be processed. Shohel stated that whilst he was hospitalised at NUH, Chen gave him two forms to sign which appeared to be the VA Form and a form titled “Accident Statement”⁸ (collectively, the “two forms”). Shohel simply signed the two forms as he did not understand them and did not know how to read English.⁹ The two forms were not filled in when he signed them¹⁰, and were never read or translated to him. For the Accident Statement in particular, contrary to Chen’s allegations, Shohel stated that Chen did not ask him any questions before Chen filled it in.¹¹ These two forms will be discussed further below.

Defendants’ case

The defendants’ case was narrated by Chen. Dongwu Steel is a company in the business of supplying grating and other metals. Chen explained that where the scope of Dongwu Steel’s contracted works included the installation of such materials, this would be subcontracted to another company. At the material time, Dongwu Steel operated as a sub-sub-contractor at the worksite for the supply and installation of drain grating and chequered plate covers (“the contracted works”).

As Dongwu Steel was short of labour for the contracted works, Chen arranged to meet Sujan, whom he understood to be a labour supplier, for a job interview with a view to engaging Sujan’s company to supply workers to Dongwu Steel. Chen thus arranged to meet Sujan to bring him to the worksite for the job interview. When Chen arrived at Joo Koon MRT station on 21 September 2014 to pick Sujan up, Sujan introduced Shohel to him. Chen did not expect to see Shohel as he was there to meet Sujan only. Chen claimed that that was the first time he had ever met Sujan¹² and Shohel.

Chen left Sujan and Shohel at the guardhouse of the worksite and proceeded to park his car before returning to the guardhouse to meet them. At that time, there was no guard at the guardhouse. Chen then filled in a VA Form each for Sujan and Shohel. He obtained the particulars required for the filling in of the VA Forms from their work permits. This was the first time Chen saw Sujan and Shohel’s work permits. Chen then informed Sujan that both he and Shohel had to sign the VA Forms, which they did. He also instructed them to wait at the guardhouse for their VA Forms to be processed by the guard (who was not there at that time) and went to attend to some pressing matters. Throughout the entire time, Chen only spoke to Sujan and did not speak to Shohel at all.

About one hour later, Chen received a call from Sujan informing him that Shohel had “fallen into a hole”, which, according to Chen, was the basement of the substation building situated inside the worksite. Chen stated that Sujan and Shohel had entered the building without his knowledge or consent. Chen then brought Shohel to Westpoint Hospital.

Chen claimed that Sujan and Shohel kept and did not return the VA Forms to Chen on 21 September 2014. Chen only retrieved Shohel’s VA Form from Shohel at the hospital about a week later. Chen could not retrieve Sujan’s VA Form from Sujan despite having contacted him. Chen reckoned that Sujan was refusing to return his calls and was avoiding him as Sujan had borrowed money from Chen after Shohel’s accident.

As for the Accident Statement, Chen stated that on the morning of 1 October 2014, he visited Shohel in hospital and confirmed three matters with him. First, that Chen did not know Shohel prior to the accident. Second, that it was Sujan who brought Shohel to the worksite on 21 September 2014, and third, that it was Sujan who instructed Shohel to move the metal plate.¹³ Chen then went back to his office and typed out the contents of the Accident Statement and returned the same afternoon to the hospital. He then read the Accident Statement to Shohel word for word, and told to him that he needed this statement in order to make the insurance claim. Shohel signed the Accident Statement in Chen’s presence.

My decision

Although Shohel’s pleaded case was premised on various causes of action, namely negligence and breach of duty by an employer, occupiers’ liability, and breach of statutory duty under the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed), in closing submissions, the parties proceeded only on the first. The trial was also bifurcated; I therefore only had to make findings on the issue of liability.

Whether Shohel was engaged by defendants to perform work on 21 September 2014

It was not disputed that Shohel was at the material time an employee of SPG Marine and that on 21 September 2014, Chen brought Shohel and Sujan to the worksite at which Dongwu Steel was operating as a sub-sub-contractor.¹⁴ It was also not disputed that Shohel and Sujan were carrying a metal plate when Shohel fell into a “hole”. The question, however, was whether Chen had instructed Shohel to carry the metal plate and had therefore engaged Shohel to work for the defendants. The defence counsel put to Shohel that it was Sujan who had instructed him to carry the metal plate. In my view, and for reasons which I will explain, this did not mean that Chen did not also instruct Shohel, through Sujan, to perform work on that day at the worksite. If so, the defendants would have engaged or employed Shohel on that day, albeit without a valid work permit.

I begin with Chen’s meeting with Sujan. I note that Sujan was not called as a witness and could not therefore provide evidence pertaining to this meeting. Chen claimed that he did not know Sujan or Shohel and had never met them before. I disbelieved Chen that he met Sujan for the first time only on 21 September 2014. Chen claimed that when he picked Sujan and Shohel from Joo Koon MRT station on that day, he did not verify their identities.¹⁵ Even if I accepted Chen’s submission that he could not stop his vehicle for long when he was picking Sujan and Shohel up from the MRT station, one would have thought that he would have, at the very least, done a quick verification before letting two strangers into his car and driving them to the worksite. The handphone messages that Chen produced¹⁶ were neutral – they did not establish that Sujan met Chen for the first time on 21 September 2014.

Chen stated that he knew Sujan and Shohel were work permit holders when he was purportedly filling in the VA Forms at the guardhouse. However, he claimed that he merely had a “glance” at their work permits and did not pay “special attention” to or “memorise” the particulars therein.¹⁷ He did not verify whether they were employed by someone else at that time, although his intention was to interview Sujan for work or for the supply of manpower. One would have thought that if Chen was indeed looking for manpower, it would have been important for him to verify the employment status of Sujan and Shohel, who were work permit holders. Chen’s evidence at trial was that he had checked the expiry date of their work permits as this indicated whether they were working legally in Singapore.¹⁸

From the above, I could not but infer that Chen must have known Sujan prior to 21 September 2014. This explained why Chen did not bother to verify Sujan’s identity when he first met him at the MRT station or verify his employment status subsequently. This is leaving aside the issue of the time and circumstances under which the VA Forms were filled in, to which I will turn later (at [19]).

I accepted Shohel’s testimony that Chen had instructed him and Sujan to perform work at the worksite, and that it was Sujan who conveyed to Shohel Chen’s instructions as Shohel did not understand English. Chen’s position was also that he spoke only to Sujan as he could...