Xu Jin Long v Nian Chuan Construction Pte Ltd

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 24 October 2001
• Neutral Citation: [2001] SGHC 325
• Docket Number: Suit No 494 of 2001
• Date: 24 October 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Lin Shiu Yi (Hoh & Partners)
• Citation: [2001] SGHC 325
• Defendant Counsel: Teh Ee-Von (Wong & M Seow)
• Court: High Court (Singapore)
• Subject Matter: Employment contract,Scope and interpretation of s 2(1),Whether plaintiff contributorily negligent,General damages for pain and suffering,Personal injury during course of employment,Contract,Whether clause contravenes s 2 of Unfair Contract Terms Act (Cap 396, 1994 Ed),Exclusion clause,s 2 Unfair Contract Terms Act (Cap 396,1994 Ed),Fracture united but plaintiff predisposed to post-traumatic arthritis,Contributory negligence,Plaintiff ascending staircase which collapses,Plaintiff's duty to mitigate loss by returning to work,Whether clause limits employer's liability for personal injuries,Loss of flexion with residual pain and stiffness in foot,Lack of warning or barricades,Damages,Tort,Measure of damages,Whether clause precludes plaintiff from suing in tort,Whether reasonable worker would use staircase,Damages for loss of future earnings,Burden of proving mitigation,Costs for future surgery,Negligence,Fracture of bone in heel,Contractual terms,Pre-trial loss of earnings

Judgment

GROUNDS OF JUDGMENT

1. This was an action by the plaintiff against his employers for damages for personal injury occurred in the course of employment. The plaintiff is from the village of Long Qiao in the province of Anhui, China where his parents and 33 year old wife earn a living as rice farmers. He has an eight-year old son. The plaintiff, now 33 years of age, was previously working as a construction worker in China earning S$350 a month. He came to Singapore in March 1999 to work because he was able to earn about S$1,200 a month here. He signed a contract of employment with the defendants dated 16 March 1999 as well as a document entitled "Worker's Letter of Guarantee" also dated 16 March 1999. These two documents are in English but a Chinese version of each was given to the plaintiff before he signed. The plaintiff's admitted this assertion of the defendants but he says that he had just arrived from China and there were about 30 workers being enlisted and each had a copy of the documents to sign. He read the Chinese version and signed because he did not want to be sent back to China. The defendants are relying on certain terms in these documents in their defence and I shall revert to these terms shortly.

2. About the time of the accident, the plaintiff was engaged to work at a site at Ang Mo Kio Avenue 8. He was given workers' accommodation at the site by his employers. He was housed together with other workers in make-shift dormitories constructed from containers - the sort that are used for the transportation of cargo in container-vessels. There were three rows of such dormitories. Each dormitory consisted of three containers arranged end-to-end and stacked three-containers high. Each dormitory had a corridor that ran along the length of the dormitory leading to a metal staircase which provided the sole means of access (and egress) to the dormitories on the second and third levels.

3. The plaintiff was walking up the metal staircase to his dormitory on the third level to collect some tools about noontime on 19 October 2000. At that time there were about seven other workers ahead of him. The plaintiff reached the staircase landing at the second level and was a few steps up the second part of the stairs when the staircase collapsed. He fell about five metres to the ground and injured himself. The defendants subsequently erected a wooden staircase in place of the collapsed one. The defendants raised two defences in respect of the issue of liability. First they say that the plaintiff was warned not to use the staircase as it was in the process of being dismantled to make way for a re-arrangement of that particular row of dormitory. Secondly, they raised a contractual defence by which they say that under the terms of the employment contract as well as the guarantee the plaintiff had undertaken and agreed not to pursue any common law claim against the defendants. I shall consider the contractual defence first.

4. The contractual defence was constructed around cl 25 of the employment contract as well as cl 15 of the guarantee. For convenience I shall set out these two wordy clauses in full as follows:

"Clause 25. – While under employment, the employer shall provide labour insurance for each employee.

a. If the employee is disabled or seriously injured due to an industrial accident, the employer shall, in accordance with the local labour laws and insurance regulations, initiate compensation procedures with the insurance company. The amount received shall be handed to the employee himself or his immediate family after deducting the various actual expenses. The employer shall not be responsible for any compensation. The employee shall be responsible for providing information to be obtained from China required for the compensation procedure, while the employee shall be responsible for the validity of the information provided. If the employee is involved in accidents not covered by the said insurance, the employer shall not compensate for any economic losses arising out of the said accidents."

"Clause 15. – If I am injured while working, the employer shall bear the medical expenses and I can take the number of days of sick leave as stated in the medical certificate. Wage payment during the period of sick leave shall be as per the stipulations in the labour contract. The employer shall undertake to initiate procedures for collection of compensation arising from injury, disability or death through industrial accident from the insurance company. The amount of compensation shall be handed over to me or my immediate family after deducting the relevant expenses. Regardless of whatever type of injury, disability or death incidents occurred, I undertake that my family members shall not come to Singapore for visitation or arrangement of funeral matters. If the occurrence of the industrial incident is due to me, the employer shall not be responsible for the medical expenses and shall also not be responsible to initiate procedure for collection of compensation. If there are differences in the determination of the industrial accident or the handling of the said incident, I undertake not to go to the related parties such as Insurance Company, Singapore’s Ministry of Manpower etc. to directly point out my view or interfere the handling of the compensation and shall ask the site supervisor to convey my view to the employer company or go through my domestic foreign labour unit to resolve the matter and I undertake to follow the related contract articles in carrying out this work. My family and I undertake not to request for other compensation.

16. If there are differences in the collection of compensation or payment deducted on behalf etc, I undertake that I will not brought up the issue in Singapore or argue with the employer. I am willing to hold this issue till I return home and go through my domestic foreign labour unit to resolve the matter." (sic)

5. Miss Lin submitted on behalf of the plaintiff that the contractual terms referred to above are restriction of liability clauses and are unenforceable by reason of s 2 of the Unfair Contract Terms Act, Ch 396 which provides as follows:

"(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness."

Miss Teh argued on behalf of the defendants that "Clause 25 merely provides that all claims for compensation will be made for the plaintiff to the defendants' insurer and that the claim will be made under the Workmen's Compensation Act." She then submitted that –

"[h]ence, under this clause, when an industrial accident occurs and the plaintiff is injured the defendant will make a claim for compensation on behalf of the plaintiff. It is in this context that the sentence ‘The employer shall not be responsible for any compensation' must be read."

6. In a sense Miss Teh is right. Clause 25 merely provides that the...