Palwinder Singh v Wen Yi Plasterceil Decor Pte Ltd

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 31 January 2019
• Neutral Citation: [2019] SGDC 21
• Court: District Court (Singapore)
• Hearing Date: 21 January 2019,17 October 2018,16 October 2018
• Docket Number: DC/DC Suit No. 116 of 2018, District Court Appeal No. HC/DCA 5 of 2019
• Plaintiff Counsel: Ms Linisha Kapur Supramaniam / Ms Gangadharan Prasanna Devi (M/s DL Law Corporation) -
• Defendant Counsel: Mr Devendarajah Vivekananda (M/s ComLaw LLC) -
• Subject Matter: Negligence,duty of care
• Published date: 07 August 2019

District Judge Loo Ngan Chor: INTRODUCTION:

The plaintiff has appealed against my decision to dismiss his claim. These are the reasons for the decision I made.

IN SUM, THE CASE:

The plaintiff is about 30 years old and was employed by the plaintiff as a plasterer. He was an experienced plasterer. As a foreign worker in Singapore, he had been in Singapore since 2009.

On 10th March 2017, after about 10 months in the defendant’s employment, he was deployed to work in a condominium unit at Edgedale Plains.

His case was that at about 1pm, he set about plastering the ceiling of the unit. For this purpose, he had wet plaster in a plastering plate and a trowel. As plaster dries rather fast, he had to ensure that the plaster was applied onto the ceiling before it dried. He was given an A-frame ladder with seven steps, where he stood on the fourth step. The ceiling was about 10 feet to 11 feet high and he is 5 feet 10 inches tall.

While thus engaged, he fell off the ladder and injured himself. The injuries were to his right shoulder, lower lumbar region and the right index finger which was fractured in the middle phalanx.

While the plaintiff said that there was a senior co-worker and two to three other workers in the unit, they were not within sight of him so that no one saw how he fell.

He sued the defendant for negligence for failing to provide him with a safe system of work. In particular, he said that the defendant did not provide him with someone to hold the A-frame ladder or a working platform from which to do his work.

In the plaintiff’s closing submissions, the height of the ceiling was stated to be 11 feet and the plaintiff’s height as 5 feet and 11 inches. The fourth step of the A-frame ladder was stated to be more than three feet from the ground.⁰

The defendant’s pleaded case was that the accident was entirely the result of the plaintiff’s own carelessness, including a particular of negligence which said “causing his own injury”. It also did not admit that the injuries were caused by or had arisen from the accident.¹

In the evidence, the defendant’s sole witness made further allegations concerning the down-sizing of the defendant and the plaintiff and a friend having been told that they would be retrenched. The defendant further alleged that the plaintiff had deliberately staged the supposed accident. These were serious allegations that were not squarely and clearly pleaded; see the first sentence of the foregoing paragraph. Dishonesty requires proof at a high level of probabilities. The plaintiff’s counsel did not object to these allegations being adduced in the affidavit of evidence-in-chief or in testimony, although she adverted to it, without objection,² in closing. Given these considerations, and importantly the failure to plead these material facts and the potential prejudice to the plaintiff, the plaintiff’s counsel’s position notwithstanding, I completely take these allegations out of the equation. They are irrelevant to my consideration of the merits.

SOME PRINCIPLES:

As the plaintiff placed much reliance on the defendant’s statutory duties for the purpose of his point that the defendant fell short of these duties and thus was negligent, it may be useful to briefly rehearse the pertinent legal principles.

At common law, the employer’s duty of care to his employee is “to provide a competent staff of men; adequate material; and a proper system and effective supervision.” (per Chao Hick Tin JA, Parno v SC Marine Pte Ltd [1999] 3 SLR(R) 377 at [45]).

In Lee Swee Chon v Kiat Seng Metals Pte Ltd [2018] SGHC 22, George Wei J said this at [22]:

Although s 60(1)(a) of the WSHA provides that the WSHA is not to be construed as conferring a right of action in any civil proceedings in respect of any contravention, the WSHA framework is nonetheless relevant in ascertaining the appropriate standard of care expected of the Defendant (Jurong Primewide Pte Ltd v Moh Seng Cranes Pte Ltd and others [2014] 2 SLR 360 at [43]; Chen Qiangshi at [132]). The standard of care is the general objective standard of a reasonable person using ordinary care and skill, and industry standards and practice are indicative of this standard (Chen Qiangshi at [132]).

Directly germane to the plaintiff’s complaint in this case – that the defendant did not provide an assistant to hold the A-frame ladder or a working platform instead of the ladder - in Eng Lye Hup Co Ltd v Chua Sai Choo and another [1968] SGFC 2, Wee Chong Jin CJ writing for the court, had this to say: 9 The question is what is the law to be applied to the facts of this case and the findings of the trial judge. In Paris v Stepney Borough Council [1951] AC 367, Lord Normand approved and applied the observations of Lord Dunedin in Morton v William Dixon Ltd [1909] SC 807 at 809:

Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either — to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or — to show that it was a thing which was so obviously wanted that it would be folly in any one to neglect to provide it.

10 Lord Normand after quoting Lord Dunedin continued:

The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances, but it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.

11 Applying the test laid down by Lord Normand, can the facts of the present case justify a finding that a precaution against the ladder slipping when in use was necessary where there is no evidence at all that it is one taken by other persons in like circumstances? In my opinion clearly not. 12 Then, again applying the test laid down by Lord Normand, can the facts justify a finding that this precaution was one which the appellants, as reasonable and prudent employers, would think so obvious that it was folly to omit it or that it was unreasonable or imprudent to omit it (see the observations of Lord Porter and Lord Cohen in Morris v West Hartlepool Steam Navigation Co Ltd [1956] 1 All ER 385 at 395...