Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal

JudgeChao Hick Tin J
Judgment Date24 May 1996
Neutral Citation[1996] SGCA 37
Date24 May 1996
Subject MatterCompensation for injury claim,Breach of statutory duty,Extent of duty of occupier,Factories Act (Cap 104),Whether employee entitled to compensation from main contractor in absence of employer-employee relationship,Occupier’s liability,Employee of independent contractor,Invitee,Negligence,Tort,Whether main contractor under general duty of care,Reasonable care to prevent damage from unusual dangers,Duty of care,Whether extending to dangers related to current operations,Need to establish causation
Docket NumberCivil Appeals Nos 79 and 81
Published date19 September 2003
Defendant CounselLee Yuk Lan (Goh Poh & Pnrs)
CourtCourt of Appeal (Singapore)
Plaintiff CounselSubbiah Pillai (Pillai & Pillai),Lie Chin-Chin (Lie Kee Pong & Co)

Cur Adv Vult

These are appeals against the decisions of the High Court in Suit 892 of 1991. In the first appeal (CA 79/95), Mohd bin Sapri (hereinafter referred to as `the plaintiff`) appealed against the dismissal of his claim for damages against the fourth defendant to the action, Soil-Build (Pte) Ltd (SB), in respect of injuries suffered. In the second appeal (CA 81/95), the second defendants to the action, Sprinkler Engineering Pte Ltd (SE) appealed against the finding of the trial court that they were one-third liable to the plaintiff for his injuries. SE also appealed against the court`s decision as to costs. We heard both appeals in succession and we shall set out our decisions in a single judgment.

The facts

The material facts are fairly straightforward.
In February 1988, SB successfully tendered to construct and maintain a warehouse on a site in Woodlands (the site) belonging to the third defendants, CMB Packaging Singapore Ltd (CMB). SB employed SE as specialist sub-contractors for the installation of a fire-fighting or sprinkler system at the proposed warehouse.

On 9 October 1989, the plaintiff was injured in an accident during the installation of the sprinkler system at the first storey of the warehouse.
He was instructed to touch-up the paint work on certain sprinkler pipes attached to the ceiling of the first storey. For this purpose, he climbed atop a four-level mobile scaffolding or staging and stood on its platform. He had not been supplied with any safety apparatus such as a helmet or belt. The staging had been modified from a stationary one by the plaintiff and his co-workers by affixing makeshift wheels onto its base. While atop the staging, the plaintiff fell to the ground as it toppled while he was being pushed along by his co-workers.

The plaintiff instituted S 892/91 to recover damages for his injuries.
By the time the matter came to trial, the action against the first defendants, Synthes Singapore Pte Ltd, had been stayed. The action against CMB was discontinued on the second day of the hearing. The substantive hearing, therefore, proceeded against SE and SB only.

The plaintiff`s contentions

The plaintiff contended that both SB and SE were responsible for his injuries.
He alleged that they were negligent and/or in breach of their duties as occupiers of the site and/or breach of their duties as his employers. In the alternative, he further alleged that the accident was caused by a breach of statutory duty (under the Factories Act (Cap 104)) on the part of SE and/or SB as occupiers of the site.

SE`s defence

In its defence, SE denied having employed the plaintiff.
SE maintained that he was employed by Ishak Karim (Ishak). Ishak was his brother-in-law and was one of two sub-contractors engaged by SE to install the sprinkler system, the other being one Michael Chan Im Huat (Michael Chan). Ishak and Michael Chan were responsible for the work at the first and second storey respectively. They were responsible for recruiting and supervising their own workers.

SE also denied that the accident was caused by its negligence or any breach of duty on its part.
Rather, the accident was entirely due to the plaintiff`s own negligence and/or that of his co-workers employed by Ishak. The plaintiff deliberately adopted an unsafe and prohibited practice. He had remained on the staging and asked his co-workers to push the staging to the next location where further touch-up work was to be done, instead of descending to the ground before the staging was moved. As a consequence, the staging toppled and fell over. The plaintiff was thrown off and thus injured.

SB`s contentions

SB agreed that the accident had occurred in the manner suggested by SE.
It denied having employed the plaintiff, and disclaimed responsibility for the accident. It could not be responsible as an occupier since the accident had not resulted from any latent hazard existing on the site. The breaches of statutory duty under the Factories Act were denied. SB also claimed an indemnity from SE on the basis of the sub-contract between them, should the former be found liable to the plaintiff.

The decision below

The quantum of damages was agreed at $90,000 (covering general and special damages).
The trial judge dismissed the plaintiff`s claim against SB, but ordered judgment for the plaintiff against SE on the basis of SE being one-third responsible for the accident. SE was also ordered to pay the plaintiff`s costs on the standard basis in full up to 31 October 1994 and 50% of the plaintiff`s costs thereafter. The second order was a variant of a `Bullock` order, for SE to pay all of SB`s costs payable by the plaintiff up to 16 November 1994, and 50% of such costs thereafter.

The trial judge rejected the plaintiff`s claim that SE and SB were liable for his injuries as his employers or as occupiers of the premises.
She also found no causal link between the plaintiff`s injuries and the breach of statutory duty under the Factories Act. She found that the accident had three contributory factors. First, there was the dangerous practice adopted by the plaintiff and his co-workers, of pushing the staging while the plaintiff remained on the platform. This was the major cause of the accident. Secondly, the makeshift wheels affixed by the plaintiff and his co-workers to the staging were defective. Thirdly, there was inadequate supervision of the workers in that no one stopped them from following unsafe work practices or ensuring that all obstacles were removed from the vicinity of the staging.

In the trial judge`s opinion, SE had been negligent in failing to provide adequate supervision.
SE was aware that there would be various other sub-contractors and workers at the premises. Careful supervision and coordination was, therefore, required and in view of the height at which the sprinkler workers had to work, SE should have ensured that the equipment used by the workers was adequate for the purpose and was used in a proper fashion. It was in breach of this duty and the breach had contributed to the accident.

SE`s appeal (CA 81/95)

Although we heard P`s appeal in CA 79/95 first, it will be convenient to deal first with SE`s appeal in CA 81/95.
Counsel for SE raised two main arguments. In her first ground of appeal, she submitted that the trial judge had made findings in respect of SE`s breach of duty which were not raised in the plaintiff`s pleadings. In her second and main ground, she submitted that the judgment effectively imposed duties which had thus far been recognized at common law as the non-delegable duties owed by an employer to his employee. Counsel submitted that in holding that SE owed a duty of care to an employee of Ishak, a sub-contractor, the trial judge was unsupported by authority.

We are of the opinion that it is unnecessary for us to express any views in relation to the first ground.
Accordingly, we decline to do so. Even if we were to rule that the trial judge had decided the case on issues not raised in the pleadings or in the arguments, one consequence may only be that a retrial may be ordered upon an amendment of the plaintiff`s pleadings. In the event, we shall only address the second ground of appeal. This revolves around the applicability of the case of McArdle v Andmac Roofing Co & Ors [1967] 1 All ER 583, which was relied upon by the trial judge to support her findings as to SE`s liability.

Counsel for SE argued that the trial judge had wrongly applied McArdle`s , as the factual circumstances of the cases were entirely different and distinguishable.
The brief facts of that case are as follows. The plaintiff (M) had been employed by Andmac, who were sub-contractors appointed by the second defendants, Pontin. Andmac was engaged by Pontin to lay felt and bitumen on the roof of an existing building which was being converted. Another sub-contractor, Newton, was engaged by Pontin by a labour only contract to place joists over a strip of the roof and to lay boards on the joists. On the day of the accident, Pontin`s engineer, who had 42 years` experience, had sent Andmac`s men to work on the roof. Newton`s men had been working on the roof earlier and had gone for their lunch-break, leaving an uncovered and unprotected aperture in the roof. M proceeded with his work on the roof as directed. While doing so, and giving strict attention to his work, M lost his balance when he reached the aperture and fell to the ground. No arrangements had been made between Pontin and its sub-contractors, or between the sub-contractors inter se, for any safety precautions.

M sued Andmac, Pontin and Newton for, inter alia, negligence.
Andmac and Pontin were also sued for breach of statutory duty under reg 30 of the Building (Safety, Health and Welfare) Regulations 1948. The trial judge (Cusack J) held that all three defendants each owed M a duty of care in the circumstances. In addition, Andmac was found liable for breach of statutory duty, while M was found not to be contributorily negligent to any extent. Cusack J`s decision was upheld on appeal, except that the apportionment of liability was varied.

In the present case, the trial judge acknowledged that the facts of McArdle were different from those in the present case.
Nonetheless, she found the principles enunciated to be equally applicable. She reasoned that SE knew that the installation work required proper supervision and involved a certain amount of danger. In her opinion:

SE, therefore, had a duty to take steps to see that that danger was, as far as practicable, eliminated or reduced and it was no answer to the plaintiff`s claim to say that everything was left to Ishak Karim, their independent contractor. It was well aware that Ishak Karim was working on more than one site at a time and that during the period when the sprinkler work was being carried out there would be various other sub-contractors and workers at the Woodlands site. Careful supervision and coordination was,

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