District Judge Loo Ngan Chor:
Introduction:
The defendant has appealed against my decision to the extent that I failed to consider the question whether the plaintiff was contributorily negligent.
Given the limited scope of the defendant’s complaint about my decision, I propose to adopt the brief reasons (“my findings”) that I gave parties when I delivered my decision on 6th January 2016 as a starting point. This is because my findings are not the subject of challenge in the appeal. The appeal is limited to why, taking my findings as a given, I did not consider it appropriate to assign any contribution against the plaintiff.
At the trial, the plaintiff testified for himself. He also called as his witnesses two of his former colleagues, Mr Baljinder Singh (PW2) and Mr Nagra Shamsher (PW3). The defendant’s witnesses were Mr Rasu Velalar Shanmugavel (DW1), the defendant’s painting supervisor, Mr Ramasamy Ramesh (DW2), the defendant’s safety co-ordinator and Mr Elangovan s/o Ganesan (DW3), the defendant’s safety manager. DW2 did not provide an affidavit of evidence-in-chief and was called mainly to depose to certain photographs that he took.
My findings:
My findings are now set out, with end-notes added for the purpose of these grounds of decision: I give you my brief reasons for the decision that I make today after having perused the submissions and record. The plaintiff suffered a fall from a CAT ladder atop HDB Block 185 in Pasir Ris at some time past 3pm on 19th March 2013. He is an Indian national and was on a work permit. He was assigned by the defendant employer to paint the water tank enclosure on top of that block. Working alone, the plaintiff was part of a team to execute the defendant’s contract to paint blocks 180 to 199 in Pasir Ris Street 11/12. He was carrying a large tin of paint in one hand when descending the CAT ladder affixed to that side of the water tank enclosure. He was hoping to get to the roof top from where to paint that side of the enclosure. He lost his footing, and fell to the roof top of the block along with the tin of paint. He shouted out in pain when the defendant’s workers nearby came to his assistance. He sues for damages for the injuries he suffered saying that the defendant was negligent and breached provisions of the WSHA and certain regulations thereunder. The defence is that the plaintiff was an experienced employee who was the author of his own injuries. The basis for this defence is that the plaintiff had been issued with a wire rope with which he was to lift and lower the paint tin. He should not have been holding the tin in one hand when descending the CAT ladder. Also he had been issued with a safety harness, which the plaintiff was admittedly wearing at the time, and should have affixed the lanyard to secure himself when descending. The lanyard was certainly shorter than the height he was to descend and would have meant that he had to hook and unhook the lanyard to the ladder on his way down, which obviously he could not have done if he were holding the paint tin. The plaintiff denies that he was issued with any wire rope. Since he had to hold the paint tin, he therefore could not make any use of the safety harness lanyard. Two former colleagues and former employees of the defendant testified for the plaintiff that there was no practice of any wire rope. Indeed the wire rope was associated with the gondolas used in painting the walls of the blocks. The large question in the background is whether the defendant had a safe system of work. The specific question of fact before me was whether the plaintiff had indeed been issued with a wire rope to be used to lift and lower the tin of paint. I propose to briefly answer this specific question because if there was no wire rope issued, the fault was all the defendant’s. My finding is that on a balance of probabilities no wire rope was issued for the purpose the defence alleged. I shall outline briefly the reasons based on the narrative flow and they are not in any order of importance. The wire rope being issued was stated in the Defence. However, in the I Report filed on 22nd March 2013, which stated that the accident happened at 3.45pm on 19th March 2013, in reference to the side note about providing a description of how the accident happened, the answer was that the plaintiff slipped and fell while climbing down a CAT ladder. There was no mention of the harness and lanyard or the provision of a wire rope. The answer the defendant provided in the I Report would have been quite so if the question had been what was the accident and not how it happened. To me, this lent some small credence to the plaintiff’s point that the supervisor had told someone to toss the wire rope over. Another reason why I think the wire rope was tossed over after the accident is given later. DW1 produced a sample of a wire rope. It was not particularly long. It was thick (about the thickness of my index or middle finger) and heavy. It was tough. It was not obvious to me how the wire could be conveniently used to hang a paint tin from because one end hung loose and the other ended in a loop. DW1 only stated in cross-examination that one needed a hook or shackle to connect the paint tin to the loop of the wire rope. The hook and shackle were not produced. In my view, if the wire rope was all about strength and toughness, and (was also) used on the gondolas, the hook would likely have compromised these. Without a hook, one would have needed a machine or strong tool to get a wire rope ready to connect with the handle of the tin of paint. Moreover, the wire rope would have added considerably to the weight of the tin of paint. I should also have thought that it could have damaged the concrete and paint that was about to be applied to the wall. Quite likely, it seemed to me, the wire rope was surely the wrong tool with which to lift a tin of paint. I did not think that it was inherently likely that the plaintiff was to use a wire rope. The defendant produced demonstration photographs in 2AB to show how a paint of tin was lifted and lowered with the use of a rope. However, the rope that was used was not a wire rope. This surprised both counsel and the court. The rope in the demonstration photographs was an ordinary rope, and it was referred to by counsel as a nylon rope, although he called it a “material rope” at the very start of his reference to the photographs. It appears to me that a nylon rope was surely far more suitable for the purpose but this was not the case of the defence. If indeed a wire rope was intended for the purpose, why was one not used in the demonstration? In my view, the defence lacked internal consistency. The defendant also produced a copy photograph said to be taken at 1617 hours on the day of the accident. This photograph was produced only on the first day of the trial and was strenuously objected to by Ms Kaur. Mr Phua said that he had only been given it the night before. (There were other photographs which bore the time 1601 all the way to 1725.) It bore the date and time apparently automatically printed. It also bore two words “safety line”. Someone had printed those two words on the photo. If the wire rope was for lifting the tin, why was it called a safety line? Moreover, the defendant’s very late disclosure of the photograph made me very slow to accept it. Especially since the existence of a wire rope was at the heart of its defence. I also would like to observe that the photograph in question shows a wire rope dangling over the top of that side of the water tank enclosure where the plaintiff fell. Since the plaintiff had not used it, why was it dangling over the wall and coming down two thirds of the way? It was not the case of either party that the plaintiff had thrown it over...
