Ng Kim Cheng v Naigai Nitto Singapore Pte Ltd and Another

JudgeL P Thean J
Judgment Date05 February 1991
Neutral Citation[1991] SGHC 23
Date05 February 1991
Subject MatterNon-delegable,Cost and maintenance of artificial limb,Failure to maintain machinery in efficient working order and good repair,Damages,Apportionment of liability,Factory accident,Failure to take adequate safety precautions,Pre-trial loss of earnings,If delegated and negligently performed employer vicariously liable,ss 7(1), 31(1)(a) & (b) Factories Act (Cap 104),Measure of damages,Breach of statutory duty,Left arm crushed and amputated,Duty to provide safe plant and appliances and safe system of work,Tort,Personal injuries cases,Breach of duty,Employees’ duties,Employment Law,Negligence
Docket NumberSuit No 1190 of 1985
Published date19 September 2003
Defendant CounselYap Tyou Min (Battenberg & Talma),Genevieve Tan (Allen & Gledhill)
CourtHigh Court (Singapore)
Plaintiff CounselKaruppan Chettiar (Murphy & Dunbar)

Cur Adv Vult

The plaintiff is an employee of the first defendant and at the material time was employed as a storekeeper at the first defendant`s warehouse which is on the ground floor of PSA Multi-Storey Complex, Block 20, Pasir Panjang Road. The first defendant is engaged in the business of a freight forwarder, and its business involves, among other things, unpacking and packing of goods at its warehouse and delivering them to its customers. At the material time, there were provided in the warehouse two forklifts which were used by the first defendant`s employees including the plaintiff, for moving, loading and unloading goods, and one of the forklifts was a Komatsu model FD 20T bearing serial number 1105494, which was the forklift in question in this case.

At the material time, the second defendant was engaged by the first defendant to service the forklifts under a servicing contract, and pursuant to that contract the second defendant`s mechanic serviced the two machines every month.

On 17 February, 1984, one of the forklift drivers, Lim Boon Chong (Lim) complained to the plaintiff that the brakes of the forklift, ie the Komatsu forklift, were not working.
The plaintiff called the second defendant, and the latter`s mechanic came and attended to the repair. After the repair was carried out, the plaintiff signed a job completion form. The forklift was subsequently used by Lim and he found that the brakes were still defective. He said he had to depress the brake pedal twice before he could bring the forklift to a stop.

On the following morning, 18 February, the forklift was parked at a corner on the loading platform, which was raised above the ground level by about 4 to 5 ft so that containers could be driven and parked alongside to load and unload goods.
The plaintiff who was anxious to move certain goods for the purpose of effecting delivery to customers mounted the forklift and started to operate it. While he was reversing the forklift, he found that the brakes were ineffective, and he could not stop the forklift which continued to move and eventually toppled over the edge of the platform. As the forklift fell, the plaintiff leapt from the driver`s seat but unfortunately could not escape injury. His left arm was pinned underneath the forklift and was severely crushed; the arm was subsequently amputated at the point above the elbow.

In respect of the injuries which he sustained in the accident, he brought this action against the first and second defendants.
His claim against the first defendant was for (i) breach of statutory duty in that the first defendant had failed to maintain properly and keep in efficient working order and good repair the forklift contrary to s 31(b) of the Factories Act (Cap 104), and (ii) negligence for failing to take any adequate precautions of the safety of the plaintiff, committing the plaintiff to operate the forklift which was in a dangerous and defective condition and failing to maintain or repair properly the brakes of the forklift. His claim against the second defendant was for negligence for failing to repair the brakes of the forklift which the second defendant knew or ought to know was defective and failing to locate properly the fault or defect in the braking system.

Both the defendants in their pleadings resisted the claim.
In the defence of the first defendant, the following defences were raised:

(i) the plaintiff at the material time drove the forklift outside the course of his employment;

(ii) the first defendant`s warehouse was not a factory within the meaning of the Factories Act and that the forklift appliance or lifting machine within the meaning of s 7(1) of the Factories Act;

(iii) a denial of negligence or breach of statutory duty;

(iv) the accident was caused or contributed to by the negligence of the plaintiff; and

(v) in the alternative, the accident was caused by the negligent and faulty repair of the forklift carried out by the second defendant.

The second defendant in the defence denied that its servant or agent was negligent in repairing the forklift and averred that the forklift had been properly repaired on the afternoon of 17 February 1984.
The second defendant further averred that the accident was caused solely or contributed to by the negligence of the plaintiff.

At the commencement of the hearing, counsel for the second defendant informed me that she had not received instructions to defend the action and in fact on that morning her instructions were not to defend the action; thereafter she did not participate further in the proceedings.
The hearing proceeded and at the conclusion I found that both the defendants were liable in damages to the plaintiff. At the request of the first defendant`s counsel and on the basis of his submission, I apportioned the liability between the first and the second defendants in the following proportions: 30% to the first defendant and 70% to the second defendant. I now give my reasons.

Before I proceed and for completeness, I should dispose of, first, one point raised in the defence but was not really argued.
The first defendant pleaded, and during the cross-examination of the plaintiff counsel for the first defendant suggested, that the plaintiff in driving the forklift was acting outside the course of his employment. I found no substance in such plea or suggestion. The plaintiff`s position was a storekeeper and incidental to his work he had to drive the forklift at times. There was evidence before me, which I accepted, that both he and his manager occasionally had to drive the forklift. On the morning in question, as the forklift driver was not around, he drove the forklift, and he drove it in connection with his work and for the purpose of the first defendant. Clearly, what he did was fully within the course of his employment. The point raised by the first defendant was wholly unarguable on the facts.

I now turn to the claim of the plaintiff against the first defendant for breach of statutory duty.
The arguments of counsel for the plaintiff and the first defendant proceeded on the basis that the warehouse, in which the plaintiff was injured, is a factory within the meaning of the Factories Act, and it has therefore become unnecessary for me to determine that point. Counsel for the first defendant also accepted that the forklift is a lifting appliance or lifting machine within the meaning of s 7(1) of the Act. The only point in issue was whether there was a breach by the first defendant of s 31(1) of the Act. The said section, in so far as relevant, provides:

No lifting appliance or lifting machine shall be used unless -

(a) it and every part of it including all working gear and all plant or gear used for anchoring or fixing the appliance or machine is of good construction, sound material, adequate strength and substance, and free from patent defect;

(b) it is properly maintained; and

(c) ...

The word `maintained` is defined in s 7(1) to mean `maintained in an efficient state, in efficient working order and in good repair`.

Counsel for the plaintiff submitted that the duty imposed by s 31(1) is an absolute one and that proof of the failure of the brakes of the forklift was sufficient to establish the breach of such duty, and as a result of such breach of duty the plaintiff sustained injuries.
On that ground the defendant was liable. He relied on Cole v Blackstone & Co Ltd [1943] KB 615 and Galashiels Gas Co Ltd v O`Donnell or Millar [1949] AC 275. In the first case the plaintiff claimed damages for the death of her husband who met with the fatal accident in the course of employment. The deceased prior to his death was a crane-man, and to reach the driving cab he had to use a ladder some 20 ft high. While he was ascending the ladder one of the rungs gave way and he fell to the ground and sustained injuries...

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4 cases
  • Hwa Aik Engineering Pte Ltd v Munshi Mohammad Faiz
    • United Kingdom
    • High Court
    • 17 March 2021
    ...Ltd [2021] SGHC 26 (refd) Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074 (refd) Ng Kim Cheng v Naigai Nitto Singapore Pte Ltd [1991] 1 SLR(R) 270; [1991] SLR 517 (refd) Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1; [2012] 3 WLR 1319 (refd) Viasystems (Tyneside) Lt......
  • Manickam Sankar v Selvaraj Madhavan (trading as MKN Construction & Engineering) and another
    • Singapore
    • High Court (Singapore)
    • 8 May 2012
    ...default of appearance had been entered against him. Paras [30] and [31] of Ng Kim Cheng v Naigai Nitto Singapore Pte Ltd and another [1991] 1 SLR(R) 270 (“Ng Kim Cheng”) were cited as authority for this proposition. Mr Tan went on to argue that Madhavan had breached his duty to take reasona......
  • Ng Chan Teng v Keppel Singmarine Dockyard Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 13 January 2009
    ...wrist per arm (see Ong Tean Hoe v Hong Kong Industrial Co Pte Ltd [2001] SGHC 303 and Ng Kim Cheng v Nagai Nitto Singapore Pte Ltd & Anor [1991] SLR 517) and have also quantified the plaintiff’s loss of future earnings at $504,000 (using a multiplier of 14 years given that the plaintiff is ......
  • Ong Tean Hoe v Hong Kong Industrial Company Private Limited
    • Singapore
    • High Court (Singapore)
    • 10 October 2001
    ...The award of $65,000 below for each hand might have been determined under the guidance of Ng Kim Cheng v Naigai Nitto Singapore Pte Ltd [1991] SLR 517 where the same amount was awarded for an amputation of an arm. That was however an agreed sum. On the other hand, there is Van der Veldr v L......
1 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 1999, December 1999
    • 1 December 1999
    ...Wilsons and Clyde Coal v English and Wilson v Tyneside Window Cleaning, supra n 115. 118 Ng Kim Cheng v Naigai Nitro Singapore Pte Ltd [1991] SLR 517, [1991] 2 MLJ 296 (HC). 119 [1957] 2 QB 348. 120 Ibid at 350—51. 121 For instance, the duty extends to taking reasonable steps to protect emp......

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