Zhang Zhi Xiang v Sembcorp Engineers and Constructors Pte Ltd trading as Sembcorp-Daewoo Joint Venture and Others

• Judge: Thian Yee Sze
• Judgment Date: 16 January 2007
• Neutral Citation: [2007] SGDC 16
• Citation: [2007] SGDC 16
• Court: District Court (Singapore)
• Plaintiff Counsel: Shanker Kumar K (Hoh Law Corporation)
• Defendant Counsel: K Anparasan and Amy Lim (Khattar Wong)
• Published date: 19 May 2009

16 January 2007 Judgment reserved.

District Judge Thian Yee Sze:

1 This was the plaintiff’s claim for injuries suffered when one of the rebars rolled onto his left hand while he was working at a rebar bending machine at a construction site. The trial before me was to determine who was responsible for the incident, as well as the amount of damages due to the plaintiff, if any. The plaintiff claimed that because of the injuries to his hand, he could not longer find employment as a manual labourer in China, where he resides.

The facts

2 The 1^st and 2^nd defendants were partners in a joint venture to construct a stretch of the Kallang-Paya Lebar Expressway. The plaintiff is a Chinese national. He was an employee of the 3^rd defendants, who were the sub-contractors of the 1^st and 2^nd defendants. He had been working at a construction site, which was located between Nicoll Highway and the Pan-Island Expressway, since 27 July 2004 as a carpenter. As at the date of the accident on 1 October 2004, which occurred between 9:30 and 10:00 am, he was 33 years old. His duty that morning, as it had been previously, was to bend the rebars using the rebar bending machine (“the machine”).

3 The rebar bending process was as follows. A stack of about 40 rebars would be hoisted onto the holding area, which was near the machine. Each rebar was about 5 m long with a diameter of 32 mm and weighed about 35 kg. The rebars in the holding area were stacked parallel to the work bench (“the bench”). The bench was used to place the rebar while it was being bent by the machine. The holding area should be level – its plane should not be tilted. Parties agreed that the holding area was, however, inclined at an angle towards the machine and the surface of the bench (such that the lower level of the holding area was slightly above the bench), although there was disagreement over who made this modification. To bend a rebar, the worker would take one end of the rebar and place it on the machine. As the rebar was long, the worker would go to the other side of the bench to adjust the position of the rebar properly so that it was aligned properly with the slot in the machine. Thereafter, the worker would step on the foot pedal of the machine, which would then bend the rebar. Another point of dispute between the parties was whether it was necessary for the plaintiff to hold the rebar to steady it during the bending process. The plaintiff’s left fingers were injured while he was holding the rebar when the fast return of the machine caused the machine to jerk, which in turn caused the stack of rebars in the holding area to slide down, pinning his left fingers. This would be addressed later in my judgment.

4 The plaintiff pleaded alternative causes of action: first, that the defendants breached their common law duty and second, that the defendants breached their statutory duty.

5 In respect of his common law claims, the plaintiff pleaded that the defendants were in breach of their duty as occupiers of the construction site, as well as their “common law duty of care”. As for his claim against the 1^st and 2^nd defendants under statute, the plaintiff contended that they had breached sections 33(1)(a) and 33(3) of the Factories Act (Cap 104) (“the Act”) in the statement of claim. As against his employers, the 3^rd defendants, over and above relying on sections 33(1)(a) and 33(3) of the Act, the plaintiff also contended that they had breached section 21(2) of the Factories (Building Operations and Works of Engineering Construction) Regulations. Plaintiff’s counsel informed the court at the beginning of the trial that he would be withdrawing paragraphs 11(i) – (k) and 12(n), (p) – (q) of the statement of claim (which pleaded the reliance on various provisions in a standard code of practice).

The plaintiff’s claim under common law

6 I would first deal with the plaintiff’s claim under common law. The defendants admitted in their defence that the 1^st and 2^nd defendants were occupiers of the construction site. With regard to the 3^rd defendants, all parties accepted in their supplementary closing submissions that they were not occupiers of the construction site. It was not denied that the 3^rd defendants were the employers of the plaintiff. As such, under common law, they owed the plaintiff a duty of care as his employers.

7 With that in mind, I turned to the question of whether the 1^st and 2^nd defendants breached their duty as occupiers, as well as whether the 3^rd defendants breached their duty as the plaintiff’s employers.

Whether the 1^st and 2^nd defendants breached their duty as occupiers

8 That the plaintiff was a “visitor” or an “invitee” to the construction site was not disputed. The plaintiff was an employee of the 3^rd defendants, a sub-contractor of the project which was authorised to carry out works at the site.

9 What did the duty of care borne by the 1^st an 2^nd defendants as occupiers entail? It was a duty to take such care as was reasonable in all circumstances of the case to ensure that the plaintiff as a visitor or invitee was reasonably safe. In this regard, the Court of Appeal has, in two decisions (Industrial Commercial Bank v Tan Swa Eng [1995] 2 SLR 716 at 719 and Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd [1997] 3 SLR 677 at 689), endorsed the statement of law laid down by Willes J in Indermaur v Dames [1860] LR 1 CP 274 at 288:

And with respect to such a visitor at least, we consider it is settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact (emphasis mine).

10 In our present case, the duty of the 1^st and 2^nd defendants to the plaintiff would be to prevent damage or injury from any unusual danger at the construction site which they knew or ought to know and which the plaintiff did not know about.

11 The holding area should have been level, but it was instead incorrectly inclined at an angle towards the machine. I accepted the plaintiff’s evidence that the holding area was erected by workers, whose identities he did not know. The defendants alleged that it was the plaintiff who erected the holding area with an inclined plane, although upon cross-examination, the safety officer of the 1^st and 2^nd defendants, Anwar, who testified on behalf of all three defendants, admitted that he did not know who erected or modified the holding area in this way.

12 The defendants contended that the plaintiff himself stacked too many rebars onto the holding area, which caused the rebars to roll down. However, they were unable to substantiate this allegation. Anwar conceded that he was not sure if the plaintiff instructed the crane operater to hoist the rebars onto the holding area or if the number of rebars hoisted was pursuant to the plaintiff’s instructions. I thus found that the plaintiff did not have control over the number of rebars to hoist in each batch and that he was not the one who instructed the crane operator during the hoisting operation. The duty was on the defendants to ensure that the number of rebars hoisted and stacked onto the holding area was not such that it would create a risk of the rebars rolling down.

13 There was no doubt in the court’s mind that the set-up of the holding area with an inclined plane, which Anwar agreed should not be inclined (and that there were instructions to that effect), together with the stacking of too many rebars onto the holding area, posed an unusual danger to the plaintiff and other workers as there was a danger that the rebars would roll down from the inclined plane. The 1^st and 2^nd defendants knew or ought to have known that the holding area with a inclined plane, coupled with the stacking of rebars onto the holding area such that there was a risk of the rebars rolling down, was simply not a safe set-up. The 1^st and 2^nd defendants, who had control over the whole construction site, should have used reasonable care to ensure that, first, the holding area was level, and second, that there were not too many rebars hoisted and stacked onto the holding area. That they were in a position to ensure this was clear – from Anwar’s testimony, it was evident that he and other officers of the 1^st and 2^nd defendants were stationed at the construction site. Anwar also gave evidence that he conducted regular toolbox meetings. In light of all the evidence, the court found that the 1^st and 2^nd defendants had breached their duty of care as occupiers to the plaintiff.

Whether the 3^rd defendants breached their duty as employers

14 The scope of the common law duty of an employer was described by Lai Siu Chiu J in Amus bin Pangkong v Jurong Shipyard Limited and anor [2000] 4 SLR 116 as one which:

… gives rise to a duty on the part of the employer to take reasonable care to carry on operations so as not to subject the persons employed to unnecessary risk. In the decision of Wilsons and Clyde Coal Co v English [1938] AC 57, Lord Wright redefined the employer’s duty as threefold: “the provision of a competent staff of men, adequate material, and a proper system and effective supervision” (at paragraph 29 of the judgment).

15 Following from the reasons set out earlier, as a corollary, the 3^rd defendants had clearly breached their duty as employers. According to Anwar, the 3^rd defendants had site supervisors who were in charge of the progress of work and safety supervisors who took care of the workers (including the plaintiff) under their supervision. The 3^rd defendants’ respective site and safety supervisors should have ensured that the work system at the rebar yard was a safe...