Wong Jin Fah (suing by his next friend Ho Chia Hao) v L & M Prestressing Pte Ltd and Others (Liberty Citystate Insurance Pte Ltd (formerly known as Citystate Insurance Pte Ltd) and Another, Third Parties)

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 31 August 2001
• Neutral Citation: [2001] SGHC 249
• Docket Number: Suit No 474 of 2000
• Date: 31 August 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Vinodh Coomaraswamy and Dylan Lee (Shook Lin & Bok),Dylan Lee and Stanley Lim (Shook Lin & Bok)
• Citation: [2001] SGHC 249
• Defendant Counsel: Tan Ken Siong (in person),K Anparasan (William Chai & Rama),Lim Yong (Lim Hua Yong & Co),Fazal Mohamed (B Rao & KS Rajah),Tan Hong Seng (Joseph Tan Jude Benny Anne Choo),James Yu (Yu & Co)
• Court: High Court (Singapore)
• Subject Matter: Absence of overhead protection,Contributory negligence,s 45A(1) Evidence Act (Cap 97, 1997 Ed),Duty to use reasonable care not to create trap or allow concealed danger of which occupier knows or ought to know about,Degree of control,Concealed danger along perimeter of building at ground level due to falling objects,Unsafe work practices,Contract of service,Inadequate warning of concealed danger,Plaintiff persisting in claim against second defendants despite absence of blame against them by other defendants,Building and Construction Law,Occupier's liability,Admissibility of evidence,Whether fact of conviction admissible in evidence to prove commission of offence,Extent of policy's coverage,Inadequate safety netting,Master and servant,Accident caused by inexperienced and unqualified workers,Insurance,Evidence,Distinction,Contractors’ duties,regs 5(1) &5(3) Factories (Building Operations and Works of Engineering Construction) Regulations (Cap 104, Rg 8, 1999 Ed),Breach of statutory duty,Policyholders,Contract for service,Negligence,Failure to make and keep safe place of work,s 33(3), 88(1, 88(2)) &88(3) Factories Act (Cap 104, 1998 Ed),Absence of overhead protection along periphery of building,Construction torts,regs 5(1) & 100 Factories (Building Operations and Works of Engineering Construction) Regulations (Cap 104, Rg 8, 1999 Ed),Liability for breach of duty,Whether one judgment sum against all defendants,Joint and several liability,Civil Procedure,Employment Law,Whether 'Sanderson' or 'Bullock' order appropriate,First defendants pleading guilty to offence under Factories Act,ss 33(3), 88(1) & 89(2) Factories Act (Cap 104, 1998 Ed),Building under construction,Costs

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Introduction

This action arose out of an accident on a construction site at No 19 Lok Yang Way (`the site`). On 2 September 1999, Wong Jin Fah (`the plaintiff`), a Malaysian with permanent resident status in Singapore, was working at the site when a piece of metal formwork fell from the partly constructed building and struck him on the head.

The heavy piece of metal pierced and cracked the plaintiff`s safety helmet and caused him to sustain serious injuries; the medical report produced in court opined that the plaintiff was likely to suffer permanent disabilities.

The plaintiff`s claim was based on negligence, breach of occupier`s liability and breach of statutory duty on the part of the defendants.

The parties involved

Stamford Tyres International Pte Ltd (`the developers`), through its architects, RG Architects, awarded L & M Prestressing Pte Ltd (`the first defendants`), a building contract in October 1998 for the construction of a four-storey warehouse building with ancillary office and showroom on the site.

The first defendants as the main contractor sub-contracted the structural works to Wei Sin Construction Pte Ltd (`the third defendants`). The third defendants in turn sub-contracted to Sin Chynta Construction Pte Ltd (`the fourth defendants`) fabrication and erection of the formwork as well as its dismantling after use. The first defendants also sub-contracted installation of the roof trusses to Hoe Hoe Engineering Pte Ltd (`the second defendants`) who sub-contracted the work in turn to the plaintiff. Liberty Citystate Insurance Pte Ltd (`the first third party`) are the insurers of the first defendants while Cosmic Insurance Corp Ltd (`the second third party`) are the insurers of the third defendants. The diagram below shows the relationship of the parties:

Please refer to the pdf file or hard copy of this issue to view the diagam.

As a sub-contractor of the first defendants to manufacture and install roof trusses, the second defendants also provided the requisite materials for such installation.

The third defendants` scope of works included the construction of columns to support the roof, which work was sub-contracted to the fourth defendants.

The accident

On 2 September 1999 at about 10.45am, the plaintiff was informed of the arrival at the site of a trailer carrying roof trusses; he proceeded to supervise the delivery and unloading. According to the senior safety supervisor of the first defendants, K Suberamaniam (`Suberamaniam`), the plaintiff had his safety helmet on.

Just before the accident, the plaintiff had commenced laying timber planks over some potholes on the ground along the vehicle washing bay access area at the site`s entrance. The timber planks provided a pathway for the loaded trailer to cross the washing bay area.

At that time, two Thai workers of the fourth defendants, Changkwian Thawee (`Changkwian`) and Wongcharee Dewit (`Wongcharee`) were dismantling metal formworks at the fourth storey of the building. The roof beam area in which they were working was directly above the washing bay area.

After unlocking each piece of metal formwork, Changkwian and Wongcharee would lower it manually to the ground. Whilst lowering down one (1) of these pieces, Changkwian lost his grip. Although Wongcharee was holding the other end of the formwork, it proved too heavy for him to bear the weight alone. He released the metal formwork, it fell and hit a platform at the second storey before tearing through the safety net surrounding the second storey platform and hitting the plaintiff on the ground.

The metal formwork was about 300mm wide, 1,500mm long and weighed some 17.4kg. Falling from a height of some 18m, its force was strong enough to crack the plaintiff`s safety helmet. Suberamaniam (1DW1) who was then at the nearby guardroom some 10m away from the spot, saw the plaintiff lying on the ground. He ran to the plaintiff and found him unconscious with some bleeding on his left forehead. He immediately carried the plaintiff to the guardroom and performed first-aid procedure on the plaintiff. Suberamaniam then informed his project manager, Leong Chee Soon, who called for an ambulance to take the plaintiff to hospital.

The injury

The plaintiff was sent to National University Hospital. CT scans showed the plaintiff had suffered open fractures (and bruises) on his forehead and right frontal sinus and extradural haematoma. He was operated on for his forehead fracture, his blood clot was evacuated, his torn dura repaired and, he was subsequently transferred to the Department of Rehabilitation Medicine at Tan Tock Seng Hospital (on 22 September 1999).

The plaintiff`s injuries were serious. While he was mentally alert, he had severely reduced attention span and initiation; he was disoriented as to place, time and person. This suit was commenced by his next friend who is his brother-in-law.

The plaintiff`s rehabilitation process was also complicated by disrupted sleep-wake cycles and recurrent post-traumatic seizures. Even after comprehensive rehabilitation, he could only manage attention spans of 20 minutes, and was capable of performing only basic self-care skills. With his reduced safety awareness, he required supervision when he was outdoors. After a whole month of rehabilitation at Tan Tock Seng Hospital, he was discharged into the care of his wife on 22 October 1999.

Due to his severe traumatic brain injury, the plaintiff was certified to be at risk of seizures, dementia and side effects from medication, etc. He was also very likely to have permanent and severe cognitive deficits and disability. Prolonged follow-up and medical and neurosurgical review were recommended by his doctors.

The plaintiff`s case

The plaintiff alleged that the accident was caused or contributed to, by the negligence of all the four defendants or any one or more of them in that they had, in the main:

(1) failed to provide any or any adequate cover so that persons, including the plaintiff, would not be exposed to falling objects from the building works;

(2) failed to provide and/or maintain a safe or proper system of work at the building; and

(3) exposed him to a risk of damage or injury of which they knew or ought to have known.

On occupier`s liability, the plaintiff alleged that all the four defendants, or any one or more of them, having a sufficient degree of control over the site, were occupiers of the site.

The plaintiff also alleged that all the four defendants or any one or more of them, breached their statutory duty under the Factories Act (Cap 104, 1998 Ed) (`the Act`) in that they:

(1) failed to make and keep safe the place at which the plaintiff was working, contrary to s 33(3) of the Act;

(2) failed to erect any or any adequate overhead protection along the periphery of the building contrary to reg 5(1) of the Factories (Building Operations and Works of Engineering Construction) Regulations (Cap 104, Rg 8, 1999 Ed) (`the Regulations`); and

(3) failed to use any or any sufficient overlay or screening nets contrary to reg 100 of the Regulations.

The first defendants` case

The first defendants` defence was, that it had no knowledge of the presence of the fourth defendants at the site and that the fourth defendants were the sub- contractors of the third defendants. They contended that the injury was caused by the fourth defendants` workers and attempted to shift liability to the third and fourth defendants.

Occupier`s liability

The law in respect of an occupier`s liability is based on the common law (see Industrial Commercial Bank v Tan Swa Eng [1995] 2 SLR 716 at 719). The test of who is an occupier in law is generally accepted as being based on the degree of control exercised by such person over a particular site or building. The person who is an occupier in law is not required to be in exclusive physical occupation of the premises. In the House of Lords case of Wheat v E Lacon & Co [1966] AC 552[1966] 1 All ER 582 at 593-594, Lord Denning opined that:

wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an `occupier` and the person coming lawfully there is his `visitor`: and the `occupier` is under a duty to his `visitor` to use reasonable care. In order to be an `occupier` it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be `occupiers`. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.

The above passage is significant, when I later deal with the third and fourth defendants` duty and liability as occupiers. There is no question that under the law, it is possible to have more than one occupier liable to a visitor injured at the premises, in circumstances where the duty to use reasonable care is found to have been breached.

The plea of guilt

The first defendants were originally charged by the Ministry of Manpower (`MOM`) as the `occupier` of a building operations worksite at the site; they were said to have contravened reg 5(1) of the Regulations, thereby committing an offence under s 88(1) of the Act, namely, a contravention which was likely to cause the death of, or bodily injury to a person.

In the statement of facts for the charge, the first defendants were referred to as the `occupier` of the site. The relevant portions of PP v L & M Prestressing (Summons No MOM 4458/99) read as follows:

The defendant, which was the occupier and main contractor of the worksite, was

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