Neo Siong Chew v Cheng Guan Seng and others

• Judge: Lai Siu Chiu J
• Judgment Date: 30 April 2013
• Neutral Citation: [2013] SGHC 93
• Citation: [2013] SGHC 93
• Court: High Court (Singapore)
• Published date: 07 May 2013
• Docket Number: Suit No 326 of 2011
• Plaintiff Counsel: Vijay Kumar (Vijay & Co)
• Defendant Counsel: The first defendant in person,Appoo Ramesh (Just Law LLC),Lee Yoon Tet Luke (Luke & Co)
• Subject Matter: Tort,Breach of Statutory Duty,Negligence,Contributory Negligence,Occupier's Liability
• Hearing Date: 23 October 2012,15 November 2012,25 October 2012,31 October 2012,22 October 2012,24 October 2012,16 November 2012,19 October 2012

Lai Siu Chiu J : Introduction

This was a claim by Neo Siong Chew (“the plaintiff”) against Cheng Guan Seng (“the first defendant”), Sim Lian-Koru Bena JV Pte Ltd (“the second defendant”) and Kim Ting Landscape (Pte) Ltd (“the third defendant”) for injuries that the plaintiff sustained arising out of an accident involving an excavator operated by the first defendant on 2 November 2008.

The facts

The second defendant was the main contractor for the construction of a 16-storey office building at Lorong 6 Toa Payoh (“the Site”). The second defendant appointed Hock Po Leng Landscape & Construction Pte Ltd (“Hock Po Leng”) to cut and uproot trees at the Site (“the job”). Hock Po Leng in turn subcontracted the job to the third defendant.

The third defendant hired an excavator from Gim Soon Heng Engineering Contractor (“Gim Soon Heng”) to do the job. Since Gim Soon Heng had no excavators available for hire, it sub-contracted the work to the first defendant who was an independent excavator operator.

On 2 November 2008, the plaintiff was supervising and working with the third defendant’s workers to carry out the job at the Site. At or around 2:15pm, the excavator operated by the first defendant reversed into the plaintiff. The plaintiff sustained fractures to his lower body and was hospitalised.

The pleadings

The plaintiff alleged that the first defendant was negligent and breached his statutory duty when he drove the excavator at an extremely fast and unsafe speed without keeping a proper lookout. It was also alleged that the first defendant was in breach of ss 15(3) and 17(4)(a) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”) for endangering the safety of others and failing to ensure that the machine was maintained in a safe condition. The plaintiff claimed special damages totalling $273,925.92 which included the loss of pre-trial earnings of $179,280.00. He also claimed general damages.

The first defendant did not deny that a collision had occurred between his excavator and the plaintiff. However, he denied that he was negligent or had breached his statutory duty under the WSHA. He averred that a signal man named Rakkappan Suresh (“Suresh”) from the second defendant was directing the backward movement of his excavator when the plaintiff suddenly dashed across the back of the excavator and collided into it. The first defendant further alleged that the injury and loss sustained by the plaintiff from the accident was wholly caused or contributed to by the plaintiff’s own negligence.

Similarly, the plaintiff alleged that the second defendant was negligent and breached its statutory duty because it failed to instruct the first defendant to carry out the excavation work and the levelling of hard core in a safe manner. The second defendant also failed to cordon off the walkway and ensure that the excavator did not encroach on the walkway. In addition, the plaintiff contended that the second defendant breached ss 11(a) and 11(b) of the WSHA because it failed to ensure that there was a safety supervisor on site to regulate a safe system of work.

The second defendant denied giving instructions to the first defendant to carry out the excavation work and the levelling of hard core. The second defendant further alleged that the injury and loss sustained by the plaintiff from the accident was wholly or substantially caused by the negligence of the first defendant, third defendant and the plaintiff. The second defendant further contended that it was not in breach of its duties as occupier of the Site.

The plaintiff alleged that the third defendant was negligent and breached its statutory duty because it failed to ensure that the plaintiff was working in a safe environment. Also, the plaintiff contended that the third defendant breached ss 12(2) and 12(3) of the WSHA because it failed to take reasonable safety measures to ensure that the excavator would not collide with the plaintiff.

The third defendant denied employing the plaintiff as a supervisor. It contended that the plaintiff was engaged as its partner and was an independent contractor at all times and that the plaintiff’s injuries were not caused by any negligence or breach of statutory duty on the third defendant’s part. The third defendant further contended that the plaintiff was responsible to himself in the performance of his job and that adequate precautions were taken to prevent accidents. In addition, the third defendant pleaded that the accident was wholly caused or contributed to by the negligence of the plaintiff in failing to take adequate care of his own safety.

The evidence

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.

The plaintiff’s case

In the plaintiff’s affidavit of evidence-in-chief (“AEIC”), he deposed that on 2 November 2008, he arrived at the Site with some workers to remove tree parts, trunks and roots from the Site. At 2:30pm, he noticed the first defendant’s excavator as he was walking along the Site’s cemented path towards the side gate to purchase drinks for the workers. According to him, the excavator was stationary and did not produce any engine sounds or exhaust smoke. All of a sudden, the excavator reversed in the direction of the plaintiff at an extremely fast speed. The plaintiff attempted to avoid the excavator by running out of its path but fell down in the process of doing so. The excavator went over his feet, legs and waist before moving forward and releasing the plaintiff.

The plaintiff further deposed that the excavator had no rear view mirror. Also, a signal man, who could have prevented the accident, was not present.

Under cross-examination by counsel for the second defendant, the plaintiff denied that his back was facing the excavator (while assisting the third defendant’s director to reverse his lorry into the Site) when the accident happened.

The first defendant’s case

The first defendant’s AEIC was brief and has been substantially set out earlier at [6]. He further deposed that he had no time to react to the sudden movement of the plaintiff nor did he receive any warning from a signal man. During cross-examination by counsel for the second defendant, the first defendant admitted that he reversed the excavator even though he could not actually see if there was anyone behind. However, he testified that he sounded the excavator’s horn before reversing.

Upon further cross-examination by counsel for the plaintiff, the first defendant admitted that there was no signal man guiding him on 2 November 2008.

The second defendant’s case

The project manager for the second defendant, Ong Chin Chye Ronald (“Ronald”), deposed in his AEIC that the plaintiff, first and third defendants had organised and carried out work at the Site on 2 November 2008. He further deposed that the second defendant’s workers were not involved in the job at the Site on 2 November 2008.

During cross-examination by counsel for the plaintiff, Ronald testified that he did not inform the second defendant’s safety manager about the work to be carried out at the Site on 2 November 2008.

The safety manager for the second defendant, Lew Peng Kong (“Lew”), deposed in his AEIC that he filed a report with the Ministry of Manpower (“MOM”) regarding the accident on 2 November 2008. He further deposed that the MOM did not find the second defendant responsible for the accident in any way.

During cross-examination by counsel for the plaintiff, Lew admitted that he did not interview the first defendant before putting up the accident report to the MOM. He revealed that the second defendant paid the fine of $1,000 imposed by MOM without knowing what the fine was for.

Suresh, a construction worker employed by the second defendant, deposed in his AEIC that he was stationed at the Site on 2 November 2008 as a representative of the second defendant and that he was not required to give instructions to the contractors at the Site. He did not witness the accident because he was in the toilet at the time of the accident.

The third defendant’s case

The director for the third defendant, Oh Tiong Beng (“Ben”), deposed in his AEIC that the plaintiff had always been engaged as the third defendant’s partner or sub-contractor and never as the third defendant’s employee.

During cross-examination by counsel for the plaintiff, Ben testified that he saw the plaintiff signalling him to reverse his lorry before the accident. Subsequently, he did not see the plaintiff or the accident taking place. Ben further testified that he considered the plaintiff his worker.

On further cross-examination by counsel for the second defendant, Ben testified as follows: Q: Did you speak to the plaintiff after the accident and gather his version of how the accident occurred? A: I did ask after the accident, however it’s been too long so I can’t really remember.

...

Q: Do you recollect what he said to you about the accident? A: He said he was going to buy coffee. Q: Okay. What else? A: He said he was going to buy coffee and ask Sukri to give me signal. I only heard this little bit. The issues

The issues for the court’s determination are: Was the first defendant negligent? Did the first defendant breach its statutory duty under the WSHA? Was the second defendant negligent? Did the second defendant breach its statutory duty under the WSHA? Was the second defendant liable as the occupier of the Site? Was the third defendant negligent? Did the third defendant breach its statutory duty under the WSHA? Was the plaintiff contributorily negligent?

The decision The claims against the first defendant The negligence claim

Having considered the oral and documentary evidence presented in court, I am of the view that the first defendant was...