Tan Juay Pah v Kimly Construction Pte Ltd and others

• Court: Court of Three Judges (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 02 March 2012
• Neutral Citation: [2012] SGCA 17
• Citation: [2012] SGCA 17
• Docket Number: Civil Appeal No 208 of 2010
• Published date: 12 March 2012
• Hearing Date: 07 July 2011
• Plaintiff Counsel: Lee Eng Beng SC, Disa Sim and Ang Siok Hoon (Rajah & Tann LLP)
• Defendant Counsel: Christopher Chuah, Joyce Ng and Napolean Koh (WongPartnership LLP),Martin Roderick Edward SC and Mohamed Baiross (Martin & Partners),Siaw Kheng Boon (Siaw Kheng Boon & Co),Ramasamy s/o Karuppan Chettiar and Navin Kripalami (Acies Law Corporation)
• Subject Matter: CONTRACT,DAMAGES,Contributory Negligence,TORT,Breach of Statutory Duty,Negligence,Duty of Care

V K Rajah JA (delivering the judgment of the court): Introduction

This appeal arises from the collapse of a tower crane (“the Tower Crane”) at a project site at the National University of Singapore Society Kent Ridge Guildhouse at Kent Ridge Drive/Law Link (“the Project Site”) on 22 February 2008. Tragically, the collapse of the Tower Crane resulted in the deaths of three workers.¹ Following this, the main contractor for the project, Kimly Construction Private Limited (“Kimly”), sued the sub-contractor, Lee Tong Boon trading as Rango Machinery Services (“Rango”), from whom it had rented the Tower Crane.

Rango in turn brought in Tan Juay Pah (“TJP”), the certifying mechanical engineer whom it had engaged to inspect the Tower Crane, as a third party, claiming an indemnity against him in the event that it was found liable to Kimly. TJP is a professional mechanical engineer who is registered as an authorised examiner (“AE”) under the Workplace Safety and Health Act (Cap 354A, 2007 Rev Ed) (“the WSHA”) and its relevant regulations (these regulations and the WSHA will hereafter be collectively referred to as “the WSH Regime”). As an AE, TJP is authorised by the Ministry of Manpower (“the MOM”) to inspect, test and certify lifting machines, including tower cranes, as being safe for use.

TJP then brought in Feng Tianming (“Feng”), a professional civil and structural engineer, and FES Engineering Pte Ltd (“FES”), the approved crane contractor, as fourth parties, claiming an indemnity and/or contribution from them in turn. Feng had been engaged by Rango to design and supervise the construction of the foundation of the Tower Crane, while FES had been engaged by Rango to erect and maintain the Tower Crane. (In this regard, we note that there is an inconsistency in the decision by the trial judge (“the Judge”) dated 28 January 2011 (viz, Kimly Construction Pte Ltd v Lee Tong Boon (trading as Rango Machinery Services) (Tan Juay Pah, third party; Feng Tianming and another, fourth parties) [2011] SGHC 26 (“the Decision”)), which states both (at [9]) that FES was engaged by Kimly and (at [22]) that FES was engaged by Rango. We have found that [22] of the Decision states the correct position, ie, FES was engaged by Rango.)²

The Judge decided, inter alia, that (see [4] of the Decision): Kimly succeeded in its claim against Rango; Rango succeeded in its claim against TJP for an indemnity; and TJP’s claim against Feng and FES was dismissed by virtue of TJP’s undertaking not to call any evidence against them should his submission of “no case to answer” fail (which turned out to be the case in the court below).

This is TJP’s appeal against the Decision.

The facts Background to the dispute The relevant contracts

On or around 28 August 2006, Kimly entered into a sub-contract with Rango for the purpose of renting the Tower Crane from the latter (“the Sub-Contract”). The material terms of the Sub-Contract were as follows:³

Scope of Supply Rango will provide one (01) unit of tower crane (hereinafter referred to as “Tower Crane”) hereinafter set forth. This shall include all incidental and minor works as may be necessary to enable the proper and safe function/operation of the Tower Crane and acceptance for operation by Authorities having jurisdiction over it. …

…

TERMS & CONDITIONS … Submission, Commissioning, Testing and Inspection

… Commissioning, Testing and Inspection

Rango shall be responsible for arrangement for commissioning, load test, certification, testing and inspection by Profession [sic] Engineer/Approved Person at a prescribed interval to fulfill Authorities’ requirements. All original certificates shall be provided to Kimly for retention. … … Monthly Servicing/Maintenance

Rango shall provide free monthly servicing/maintenance by competent mechanics throughout the whole rental period. This shall include provision of necessary and suitable materials/tools/equipment required for the servicing/maintenance. All original maintenance records shall be provided to Kimly for retention. … Insurance

Kimly shall keep the Tower Crane insured against loss or damage by an equipment-all-risks policy with effect from successful commissioning until the date of dismantling. Any deductible[s] shall be borne by Rango in the event of a claim or accident of the Tower Crane caused by Rango. In the event of a claim or accident caused by Kimly, any deductibles shall be borne by Kimly. … Liability and Responsibilities Sub-Contract

Rango shall observe, perform and comply with all the provisions of the Main Contract as far as they relate to her Sub-Contract Works. Rango shall assume towards Kimly, with respect to her work and all operations of the Sub-Contract, all obligations and responsibilities that Kimly assume[s] towards the Client/Consultants/Authorities as far as they are not repugnant to or inconsistent with the expressed provision of the Sub-Contract. … … Statutory Requirements

In addition to Rango’s compliance with the conditions, specification, schedules and requirements issued under the Sub-Contract, Rango shall further be required to have her performance as well as the Sub-Contract Work in accordance with the laws of Singapore and in compliance with all relevant Acts of Parliament, subsidiary legislation, laws, by-laws and with all rules, regulations, directions, orders and guidelines of the Government or local Authorities having authority or jurisdiction over performance and/or Sub-Contract Works. Failing which, Rango shall indemnify Kimly [against] all the consequence imposed by these Authorities or arises therewith. … Indemnity

Rango shall indemnify Kimly against all claims, damages, costs, expenses, litigation or liabilities made against or incurred by Kimly, arising out of Rango’s negligence, default or non/poor performance of her contractual duties under the Sub-Contract. …

[underlining and emphasis in bold in original; emphasis added in italics]

The Sub-Contract between Rango and Kimly contained an express term (viz, cl 4.8) that Rango would indemnify Kimly against “all claims, damages, costs, expenses, litigation or liabilities made against or incurred by Kimly”⁴ arising out of Rango’s negligence or breach of the Sub-Contract. Unlike the agreement between Rango and Kimly, which was reduced into writing in the form of the Sub-Contract, Rango’s oral engagement of TJP on or around 15 August 2006 was not condensed into a written contract. Further, there is no evidence of any agreement by TJP to indemnify Rango. On the evidence, no specific terms were discussed between Rango and TJP. In particular, there was no discussion of any term that TJP was to indemnify Rango. We find that there can be no doubt that neither Rango nor TJP even remotely considered the issue of risk allocation between themselves and non-parties to their contract in the event that TJP was found wanting in the discharge of his professional obligations.

It is also undisputed that the fee which Rango paid TJP for his services was just $716.

The structure of the Tower Crane

The Tower Crane was a saddle-jib crane. For our purposes, the critical structural aspect of the Tower Crane was the mast anchor assembly (located at the base of the mast), which comprised four mast anchors (also known as foundation anchors or fixing angles) embedded in concrete. These were identified as mast anchors #1 to #4 respectively. Each of the mast anchors had five joints, identified as joints a to e respectively. The four mast anchors were in turn connected to the four legs of a mast section by pin-joints. The mast of the Tower Crane comprised seven mast sections (identified as masts #1 to #7 respectively) placed one on top of the other, with the mast anchors at its base.⁵ It is undisputed that the component parts of the Tower Crane, including the mast anchors, were supplied by Rango.

The erection of the Tower Crane

The Tower Crane was erected on 18 November 2006 and was used at the Project Site from that date until it collapsed on 22 February 2008. Before it could be used at the Project Site, certain requirements under the WSHA as well as the Workplace Safety and Health (General Provisions) Regulations (Cap 354A, Rg 1, 2007 Rev Ed) (“the WSH Regulations”), read with the “Occupational Safety an[d] Health Division Guidelines for the Submission for Use of Tower Crane in Factory Premises” issued by the MOM on 26 May 2005 (“the 2005 MOM Guidelines”), had to be met. For the purposes of this appeal, the relevant version of the WSH Regulations is that which was in force before the amendments introduced by the Workplace Safety and Health (General Provisions) (Amendment) Regulations 2009 (No S 463/2009).

Prior to the erection of the Tower Crane on 18 November 2006, Feng had prepared the design drawings and calculations according to which the Tower Crane was eventually erected. These drawings had been submitted to the MOM on 14 September 2006 in order to seek its approval for the use and operation of the Tower Crane. The MOM issued its approval on 29 September 2006, and Feng proceeded to authorise the erection of the Tower Crane. On 9 November 2006, Feng issued a Certificate of Supervision certifying that: (a) he had supervised the foundation works for and the erection of the Tower Crane; (b) the foundation works were structurally sound and complied with all the requirements under the WSHA; and (c) the Tower Crane was safe for use.

It is undisputed that TJP carried out three inspections of the Tower Crane as set out below: The first inspection was on 15 August 2006. As part of this inspection, TJP engaged Hi Tech NDT Inspection Services (S) Pte Ltd (“Hi Tech”) to perform non-destructive tests (“NDTs”) on certain critical parts of the Tower Crane (but not the mast anchors). On 18 August 2006, prior to the erection of the Tower Crane, TJP submitted a Third Party...