Mookan Sadaiyakumar v Kim Hock Corp Pte Ltd and another appeal

• Jurisdiction: Singapore
• Judge: Dedar Singh Gill JC
• Judgment Date: 27 September 2019
• Neutral Citation: [2019] SGHC 230
• Date: 27 September 2019
• Docket Number: District Court Appeal Nos 7 and 6 of 2019
• Published date: 03 October 2019
• Plaintiff Counsel: Ramasamy s/o Karuppan Chettiar (Central Chambers Law Corporation)
• Defendant Counsel: Shanker Kumar K (Hoh Law Corporation)
• Court: High Court (Singapore)
• Hearing Date: 27 June 2019
• Subject Matter: Civil Procedure,Objections,Proof of evidence,Evidence,Judicial notice,Pleadings

Dedar Singh Gill JC:

This decision concerns two cross-appeals against the District Judge’s (“DJ”) decision on 18 February 2019 (see Mookan Sadaiyakumar v Kim Hock Corporation Pte Ltd [2019] SGDC 34) that Mookan Sadaiyakumar (“the plaintiff”) and Kim Hock Corporation Pte Ltd (“the defendant”) are equally liable in negligence for a workplace accident on 8 August 2016.

Undisputed facts

The defendant is in the business of collecting scrap materials, recycling waste materials, and operating power plants, among other things.¹ A part of its business involves converting waste wood into energy.²

The conversion process takes place in a boiler furnace where wood is burnt to produce heat. The residual burnt ash from the furnace falls through “rotary valves” and eventually into an ash bin.³ The rotary valves may on occasion stall or malfunction if the waste material entering the system becomes attached with metallic objects, like nails. This causes the valves to stop operating. A red signal then flashes on the monitor in the Control Room and an alarm is triggered.⁴ When this happens, the defendant’s shift supervisor sends a worker like the plaintiff to inspect and remove the metallic object lodged in the valve.⁵

The rotary valves, once tripped, do not re-start automatically until someone takes active steps to re-start the operation of the furnace involved.⁶

It is undisputed that the plaintiff injured several fingers in one of the rotary valves operated by the defendant. The accident took place on 8 August 2016 at the defendant’s workplace, 11 Shipyard Crescent. The plaintiff was an employee of the defendant at the material time of the accident.

The decision below

The trial before the DJ centred on the issue of whether the defendant was liable to the plaintiff under the tort of negligence for the workplace injury. At trial, the plaintiff testified for himself while the defendant called three witnesses, including the plaintiff’s supervisor, Joshua Sashiram Lall Hari Lall (“Joshua”).

The plaintiff’s case was that Joshua told him that rotary valve T1 No.3 had tripped. The plaintiff then went to valve T1 No.3 and removed the chamber cover of the inspection chamber. According to the plaintiff, the valve was not in operation at this point in time. He claimed that as he was removing a short steel bar in the housing of the rotary valve, the rotary valve suddenly “came back to life”.⁷ This caused several fingers on his right hand to be crushed.⁸

The defendants’ case was that it was not possible for a tripped rotary valve to come back to life unless a certain process was observed. Once a rotary valve tripped, the supervisor had to go to a breaker control panel, which was away from the main control panel, to re-set the breaker, before going back to the main monitor panel to re-set the alarm. Lastly, the supervisor would have to go to the on/off switch to restart the rotary valve.⁹ On the defendant’s version of events, the plaintiff had gone to the wrong rotary valve, T1 no.3 instead of T2 no.8.¹⁰ Unfortunately for the plaintiff, the former valve was in operation at the time.

The DJ did not accept the plaintiff’s version of events. This was because the plaintiff’s testimony that the rotary valve had come back to life after he began to remove the short steel bar within it was “implausible”.¹¹ The DJ accepted the defendants’ evidence that the plaintiff had gone to the wrong furnace, T1 no.3.¹² The plaintiff had failed to notice that T1 no.3 was in a state of operation and carelessly proceeded to place his hand into the rotary valve’s housing chamber.¹³

Although the DJ did not accept the central pillar of the plaintiff’s case, viz. that the rotary valve T1 no.3 had suddenly come back to life as he was removing the foreign object within it, he held that the defendant was partially liable in negligence. After watching a video of the furnaces operating, the DJ observed that the rotary valve would continue to operate even when its chamber door was opened by a worker.¹⁴ The rotary valve did not have an automatic tripping system which stopped the operation of the machine when the chamber door was opened.¹⁵ In the DJ’s view, the operation of the machine in such a manner failed to take into account staff safety and was unsafe. The defendant was therefore negligent.¹⁶ After assessing both parties’ relative blameworthiness, the DJ apportioned liability between them at 50:50.¹⁷

The parties’ cases The defendants’ case

The defendant’s first submission was that the fact of the failure of the rotary valve to have an “automatic tripping system” was not adequately pleaded.¹⁸ The plaintiff also failed to provide any evidence in his affidavit that the rotary valve system was unsafe.¹⁹ The plaintiff did not run his case at trial on the basis that the rotary valve system was unsafe, and simply “chanced” on a comment made by the DJ at trial.²⁰

The defendant’s second submission was that the finding of liability, which was based on the absence of an automatic tripping system in the rotary valve, could not have been made on the basis of “judicial notice”.²¹ It was not specifically pleaded or proved to be “so obvious” that any reasonable and prudent employer would have installed such a system.²²

The defendant also counterclaimed for 100% of the medical expenses incurred by, and medical leave wages paid out to, the plaintiff. This was on the basis that the plaintiff had been unjustly enriched.²³

The plaintiff’s case

The plaintiff raised a number of matters which in his view the DJ failed to take into account in arriving at his decision.²⁴ These may be classified into the following broad submissions. The rotary valve which tripped was valve T1 no.3 and not valve T2 no.8. The DJ was wrong to conclude otherwise.²⁵ The defendant had failed to effectively communicate to the plaintiff the correct identity of the rotary valve that he was supposed to work on.²⁶ Someone in the control room had re-started the rotary valve when the plaintiff was removing the steel bar from the rotary valve. Alternatively, the rotary valve re-started on its own, causing the plaintiff’s fingers to be crushed.²⁷ The defendant disregarded the manufacturer’s manual by failing to install an emergency on/off switch at the rotary valve, and by ignoring the possibility that the valve would suddenly start up.²⁸

Lastly, the DJ was wrong to find that the plaintiff had been “unthinking and almost reckless” and therefore contributorily negligent.²⁹

Issues to be determined

I deal with both appeals holistically. The following issues arise.

First, whether the DJ was correct in finding that the plaintiff had gone to the wrong rotary valve, ie, T1 no.3 instead of T2 no.8.

Second, whether the plaintiff’s submission that the defendant had failed to install an automatic tripping mechanism in the rotary valve had been adequately pleaded.

Third, whether there was sufficient evidence of the defendant’s negligence.

Fourth, whether the DJ was entitled to take “judicial notice” of the “fact” that the furnace was unsafe because the rotary valve did not have an automatic tripping mechanism.³⁰

Fifth, whether the defendant’s counterclaim for unjust enrichment was adequately pleaded.

The decision Whether the DJ was correct in finding that the plaintiff had gone to the wrong rotary valve

The plaintiff highlighted the following matters, inter alia, that the DJ failed to take into account in finding that the plaintiff had gone to the wrong rotary valve, ie, T1 no.3: in the notification of accident lodged by the defendant with the Ministry of Manpower (“the i-report”), the defendant did not report that the plaintiff had gone to the wrong rotary valve;³¹ the accident and incident report prepared by the defendant’s investigation team, consisting of Work Safety & Health Officer Arun and Plant Engineer Clement, stated that rotary valve T1 no.3 was not in motion at the time of the accident; and³² during cross-examination, Sunderesan Sanmugam (DW2), testified that he concurred with everything that was stated in the i-report.³³

In my view, none of the above matters demonstrate that the DJ was wrong in concluding that the plaintiff had gone to the wrong rotary valve. Even if the i-report fails to mention that the plaintiff had gone to the wrong rotary valve, the plaintiff’s case that the rotary valve had suddenly “come back to life” as he was removing the steel bar from the chamber is inherently improbable or near impossible. Given the nature of the process required before a tripped rotary valve can “come back to life” – this requiring all three of the breaker, alarm, and on/off switch to be manually switched back on – I agree with the DJ that the rotary valve which the plaintiff had gone to could not have “tripped” at the material time of the accident. The only logical explanation is that the plaintiff had gone to a rotary valve which was in a state of operation at the time. I note that the plaintiff himself agreed at trial that the rotary valve could not simply re-start on its own unless a certain process was followed.³⁴

There is simply insufficient evidence supporting the plaintiff’s claim that the valve that he had first gone to was tripped and subsequently “came to life”. During the oral hearing,³⁵ counsel for the plaintiff highlighted that the rotary valve manual contained a singular line stating “sudden start-up of valve can cause serious injury”.³⁶ According to him, this line was sufficient to show a possibility that the valve could be re-activated on its own. In my view, the word “sudden” does not imply that the valve could be re-activated on its own without human intervention. Even if I took the manual to be saying this, it does not provide evidence of how likely this is, or under what circumstances such autonomous re-activation might take place. Short of such evidence, I cannot entertain the plaintiff’s...