Xu Ren Li v Nakano Singapore (Pte) Ltd

JurisdictionSingapore
JudgeEarnest Lau Chee Chong
Judgment Date25 May 2011
Neutral Citation[2011] SGDC 159
CourtDistrict Court (Singapore)
Hearing Date26 November 2010,16 November 2010,28 January 2011,14 April 2011,07 March 2011
Docket NumberDistrict Court Suit No. 3615 of 2009
Plaintiff CounselMichael Han (M/s Hoh Law Corporation)
Defendant CounselThomas Lei (M/s Lawrence Chua & Partners)
Published date06 June 2011
District Judge Earnest Lau: Facts surrounding the accident

This concerns an industrial accident at a condominium worksite. The plaintiff was a construction worker (PRC Chinese national) employed by the defendant (a company registered in Singapore), the main contractor and occupier of the said worksite.

On 30 March 2009, on or about 1900-1920 hrs, the plaintiff and several colleagues finished work on the 19th floor of an uncompleted building. They then proceeded down a stairwell from the 19th floor to the 10th floor to take a passenger lift to the ground floor for dinner. At the material time, the plaintiff was the last person trailing the group. When he reached the 13th floor staircase, he lost balance on the steps and fell against an on-facing wall situated at the 12th floor landing. He struck the wall with his right shoulder and landed on his buttocks. Fortunately his injuries were not serious. He then picked himself up and rejoined his colleagues at the passenger lift. No one witnessed the accident since he was last person down the stairs.

The next day, he reported the incident to his supervisor and sought medical treatment at the Singapore General Hospital (SGH). The doctors noted that he sustained minor shoulder and back injuries (see medical reports annexed to the statement of claim). On 21 October 2009, the plaintiff sued the defendant in tort for negligence citing various breaches which are addressed below. I heard the trial on liability on 26 November 2010, 28 January 2011, 7 March 2011 and 14 April 2011. After weighing all the evidence and arguments, I dismissed the plaintiff’s action with costs to the defendant fixed at $32,000 (awarded partly on an indemnity basis pursuant to an effective Offer To Settle by the defendant). Dissatisfied with my ruling, the plaintiff appealed.

The main issues

In the law of negligence, the plaintiff bears the burden of proving (1) the existence of a duty of care situation; (2) breach of that duty of care; (3) a causal connection between the defendant’s conduct and damage inflicted; and (4) that the particular damage suffered was not too remote. See Clerk & Lindsell on Torts (19th ed) (2007) at page 383.

The plaintiff framed his case against the defendants as follows: (1) there “were no handrails or other supports on the walls of the stairwell for him to hold on to at the material time” (paragraphs 6 and 8 of the statement of claim); (2) “there was no proper lighting in the stairwell at the material time (paragraphs 7 and 8 of the statement of claim); and (3) there were broken steps on the 12th and 13th stairs (this was not pleaded but submitted in argument). By these allegations, the plaintiff is imputing on the defendant a duty of care to provide handrails, adequate lighting and well maintained steps at the subject staircase. I will deal with each of these components specifically.

On the duty of care to provide handrails: statutory duty

Let me begin with the duty to provide handrails. Here, the plaintiff’s counsel contended the defendant owed a statutory duty under Rule 23(2) of the Workplace Safety and Health (General Provisions) Regulations:

Measures to be taken to prevent falls

23. —(2) For every staircase in a factory building or which affords a means of exit from the factory building, a substantial handrail shall be provided and maintained, which —

(a) if the staircase has an open side, shall be on that side; and

(b) if the staircase has 2 open sides, shall be on both sides.

I disagree with the plaintiff’s counsel. Having read the provision, I think the statutory obligation is only to provide handrails for staircases with open sides. This rule aims to prevent workers falling from height at the exposed side. The staircase here, however, has no open sides. It is flanked by walls (a walled staircase). Hence, Rule 23(2) of the Workplace Safety and Health (General Provisions) Regulations does not apply.

On the duty of care to provide handrails: notional common law duty

In the absence of any statutory duty, the plaintiff’s counsel must next prove the defendant owed a common law duty to provide handrails. Unfortunately, this point was omitted in the plaintiff’s submissions. From his arguments, counsel appeared to assume the onus fell on the defendant to prove why there is no duty to install handrails for walled staircases. This is incorrect in law. The legal burden does not shift to the defendant. It is the plaintiff who must persuade the court that a general notional duty of care exists between the parties (i.e. that for such generic work situations, all main contractors owe a duty of care to their workers to install handrails). If this is shown, the plaintiff must next prove there ought to be a factual duty of care recognised in this specific instance (i.e. that in this particular case, the defendant owes the plaintiff a duty to install handrails in the 12th and 13th stairwell): For a discussion on notional duties of care, see Clerk & Lindsell on Torts (19th ed) (2007) at pages 383 to 402.

Here, the plaintiff’s counsel made no argument why the court should impose a notional duty of care on employers to provide handrails. In the past, a notional duty of care could be established on forseeability of harm alone: Donohugh v. Stevenson [1932] AC 562. The current law, however, applies a more stringent three stage test. See Caparo Industries PLC v. Dickman [1990] 2 AC 605 at 617/8:

“... in addition to the forseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other”.

On this Caparo test, even if the elements of forseeability of harm (i.e. that a worker might stumble and fall within a walled staircase) and proximity (employer/worker relationship) are met, the plaintiff must still show why it is fair, just and reasonable to impose the notional duty on main contractors to install handrails along walled staircases in every unfinished high-rise building island-wide. No finding can be made without first addressing other important considerations such as whether it is fair and just to impose this duty even though main contractors have no statutory or contractual obligation to do so; on whom should the expenses of installing and dismantling temporary handrails fall; the fact that these are ordinary walled staircases posing no inherent or unusual danger by itself; and the fact that these stair wells are only used by construction workers and not residents.

In the circumstances, the plaintiff fails on this part of his claim.

On the duty to provide adequate lighting and unbroken steps

While I accept there is a duty of care by the defendant to ensure adequate lighting and proper steps, the issue here is whether the plaintiff has proven any breach of such duty. This is purely an evidential question.

On the allegation of poor lighting

I did not think the plaintiff has brought enough evidence here to tilt the balance of proof in his favour. The fact that the stairwell was illuminated is undisputed. It is the level of brightness that is in dispute.

Cross examination of plaintiff

So between 12 and 13 storey, there’d be a light bulb, illuminating right? The light bulb was at the 13th floor. So the lighting in the stair case was very dim.

Here the plaintiff failed to show sufficient proof of poor lighting. His only evidence is a photograph at plaintiff’s Bundle of Documents page 11 (PD 11). Even so, the photograph is of poor quality. It is under-exposed and at best offers inconclusive evidence of the actual lighting condition. I would add that the level of brightness needed to produce a clear photograph is completely different from the brightness required to walk safely down a flight of stairs. Ultimately, I am not persuaded to make a finding in the plaintiff’s favour on the strength of a poorly taken photograph. Moreover the adequacy of lighting is highly subjective because it involves visual perception. What appears dim for one man might not be so for another. Perhaps it would have helped if the plaintiff had introduced evidence on the prevailing industry lighting standards for enclosed corridors of stairwells. That might have given us some objective point of reference to decide this issue rather than to rely on a single photograph.

On the broken steps

Though not specifically pleaded by the plaintiff, I was prepared to let this come within one of his residuary allegations for breach in the statement of claim. Here, the plaintiff complained he fell because he landed on a broken step located along the 12th and 13th stair well. To prove the existence of this broken step, he exhibited 2 photographs, PD 10 and one from the Defendant’s Bundle of Documents page 11(d) (“DD 11(d)”). Again, I did not find the evidence reliable.

On PD 10, the plaintiff under cross examination admitted the picture might possibly be of an incorrect location (i.e. not the 12th and 13th floor). This was because PD 9 was a photograph of the 9th floor. As for DD...

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