Sim Cheng Soon v BT Engineering Pte Ltd and Another

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Chan Sek Keong CJ
• Judgment Date: 22 June 2006
• Neutral Citation: [2006] SGCA 21
• Citation: [2006] SGCA 21
• Plaintiff Counsel: N Sreenivasan and Collin Choo (Straits Law Practice LLC)
• Date: 16 November 2006
• Defendant Counsel: Fan Yuen Chi Edwina and Elizabeth Lee (Kelvin Chia Partnership)
• Published date: 23 June 2006
• Docket Number: Civil Appeal No 140 of 2005
• Subject Matter: Whether application should be allowed,Appeals,Civil Procedure,Applicable principles,Application for adducing fresh evidence on appeal in respect of set of photographs,Plaintiff's counsel at trial having opportunity to look at photographs but failing to identify fact that some photographs were missing,Plaintiff's counsel at appeal discovering some photographs in set of photographs adduced at trial left out

22 June 2006 Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):

Introduction

1 The present proceedings were straightforward. They constituted an application by the plaintiff for the adducing of fresh evidence for the consideration of this court in his appeal against the decision of the trial judge (“the judge”) in Sim Cheng Soon v BT Engineering Pte Ltd [2006] 1 SLR 697. In particular, the application asked for the following orders:

1 That the Respondents [the defendants] do provide all the negatives of the photographs that were allegedly taken by Ng Sze Kiat [the second defendant’s then safety officer] on 22^nd June 2002;

2 That leave be given for all the photographs allegedly taken by Ng Sze Kiat on 22^nd June 2002 to be admitted into evidence for the purposes of showing the sequence and timings of the photographs;

3 Such consequential orders as may be necessary; and

4 The costs of and occasioned by this application be paid by the Respondents to the Appellant [the plaintiff].

2 By way of brief factual background, the plaintiff was a welder employed by the first defendant (“BT”). BT’s business included the repair and conversion of sea-going vessels. According to the plaintiff, while working at the premises of the second defendant, Keppel Shipyard Limited (“Keppel”) on 22 June 2002, he fell into and through an opening in a working platform that was uncovered and unfenced, and landed on the deck of the vessel. As a result of the accident, he suffered serious injuries, which rendered him a quadriplegic needing full-time care.

3 The plaintiff claimed against both defendants for the injuries he sustained. He based his claim against the defendants on both breach of a duty of care as well as occupiers’ liability. The plaintiff further alleged that the defendants had breached various provisions of the Factories Act (Cap 104, 1998 Rev Ed) (“the Factories Act”) in failing to construct soundly and to properly maintain safe means of access. The defendants filed a common defence denying liability and negligence for the plaintiff’s injuries. They argued that the plaintiff had lost his grip while he was descending a ladder and thus injured himself.

4 The judge held in favour of the defendants. She found the evidence tendered by the plaintiff to be unsatisfactory. In particular, she found him to have been vague and evasive in his account of what had happened. She also found that there had been a discrepancy between this account and his earlier version of events in his solicitors’ letter to the defendants. The judge found that, on a balance of probabilities, the position in which the plaintiff fell was more consistent with the defendants’ version that he (the plaintiff) must have fallen off the ladder than with the plaintiff’s version (at [2] above), which was that he had fallen into an uncovered opening. She further held that, in any event, even if the plaintiff’s version of events were accepted, the defendants would not be liable as they were not in breach of their statutory duties under ss 33(2) and 33(3) of the Factories Act inasmuch as they had provided the plaintiff a safe means of access to as well as a safe place of employment on board the vessel concerned. The judge further held that there had, in the circumstances, been no breach by the defendants of their duty owed under the common law.

5 There was, however, one other issue – which constitutes the central focus of the present application. The then counsel for the plaintiff had in fact argued against the admission of photographs taken of the scene of the accident on the grounds that they were not contemporaneous with the accident and that the photographer (the then safety officer of Keppel) was unavailable to testify as to their veracity. The judge rejected these arguments, holding that there had been no evidence of a time lag and that, even if there had in fact been a time lag, it was not so long as to enable any scaffolding around the vessel to be altered or removed. She further held that as the photographer had since left the employment of Keppel and was working overseas, an adverse inference ought not to be drawn from his absence in testifying at the trial.

6 In the present proceedings, counsel for the plaintiff, Mr N Sreenivasan, applied for...