Zheng Yu Shan v Lian Beng Construction (1988) Pte Ltd

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeV K Rajah JA
Judgment Date08 January 2009
Neutral Citation[2009] SGHC 6
Citation[2009] SGHC 6
Plaintiff CounselLin Shiu Yi and Belinda Kaur (Hoh Law Corporation)
Docket NumberDistrict Court Appeal No 2 of 2008
Defendant CounselEu Hai Meng Michael (United Legal Alliance LLC)
Subject MatterEmployer's system of work unsafe,Whether employer liable for breach of duty to provide safe system of work,Employers’ duties,Evidence,Proof of evidence,No reason for worker to believe that standing with one leg on scaffold and one leg on gap in wall more likely to result in back injury,Tort,Contributory negligence,Whether judicial notice should be taken of such fact,No proof that standing with one leg on scaffold and one leg on gap in wall more likely to cause back injury than standing with both legs on scaffold,Employer did not give precise instructions or provide more workers to carry out physically demanding work,Judicial notice,Breach of duty,Employment Law,Whether employee contributorily negligent for his injuries,Trial judge took judicial notice of fact that standing with both legs on scaffold less likely to cause injury compared to standing with one leg on scaffold and one leg on gap in wall,Duty to provide safe system of work,Negligence
Date08 January 2009
Published date12 January 2009

8 January 2009

V K Rajah JA:

Introduction

1 This is an appeal from the decision of the District Court, which held the appellant, Zheng Yu Shan (“the Appellant”), primarily responsible for a back injury which he sustained while at work and entered interlocutory judgment for him at 30% of the damages to be assessed (see Zheng Yu Shan v Lian Beng Construction (1988) Pte Ltd [2008] SGDC 67) (“the Judgment”) at [34]). The proceedings were initiated by the Appellant after he sustained a serious back injury while removing metal formworks from a wall at a former worksite of the respondent, Lian Beng Construction (1988) Pte Ltd (“the Respondent”). At the conclusion of the hearing, I allowed the appeal and gave judgment in favour of the Appellant for the full sum of damages to be assessed. I now set out my reasons in full.

Background

The events leading to the Appellant’s injury

2 At the material time, the Appellant was a 35-year-old construction worker employed by the Respondent. The Respondent was the main contractor of a condominium project, and the Appellant was working at the worksite of the project (“the Worksite”).

3 On 31 May 2005, at about 6.10pm, the Appellant and his co-worker, Liu Shao Jing (“Liu”), were tasked by their foreman to manually remove metal formworks from a wall at the Worksite (“the Wall”). The Wall measured approximately 5m by 4m, and there was a gap at the top of it. Each metal formwork measured 1.8m by 0.3m, and weighed between 30kg and 35kg. The metal formworks had previously been assembled to create a mould into which cement had been poured, thereby creating a wall (ie, the Wall) when the cement hardened. After the cement had hardened, the metal formworks had to be removed from the Wall.

4 Under normal circumstances, a crane would have been used to remove the metal formworks from the Wall in one entire piece; ie, the metal formworks would have been removed as a single piece measuring approximately 5m by 4m (taking the dimensions of the Wall). The district judge who presided over the trial (“the District Judge”) found, and it was not in dispute, that, in this particular case, a crane could not be used to remove the metal formworks from the Wall. This was because the Worksite was located near a school, and the boom of a crane could not be swung in the direction of the school due to the potential danger posed by the swinging boom of a crane to the school and/or its students and its staff. This was the stated reason why the Appellant and Liu had to remove the metal formworks manually, and in individual pieces.

5 Both the Appellant and Liu set out to do the work as instructed. Nobody, including the foreman, gave the Appellant or Liu instructions on how to effect the actual dismantling of the metal formworks itself. The method which the Appellant and Liu adopted was one which they had previously devised between themselves. The Appellant gave evidence, which was not challenged, that he and Liu had used this method once before, but most certainly not to remove metal formworks covering such a large area and not after the mould and the scaffold vis-à-vis the wall from which the metal formworks were to be removed had been set in place for several days. Liu, who gave evidence for the Respondent, testified that he had been very reluctant to remove the metal formworks manually and would have used a crane if possible.

6 The method which the Appellant and Liu used to remove the metal formworks at the material time was as follows. Both workers climbed to the top of the Wall via a scaffold that was positioned about 40cm to 60cm from the Wall, according to construction requirements. The scaffold was 4.5 levels high, and each level was approximately 1.7m to 1.9m in height. The first two levels of the scaffold were submerged in a 4m-deep water reservoir at the material time. Both the Appellant and Liu started dismantling the metal formworks from the top level of the scaffold and worked their way downwards. While both workers were on the top level of the scaffold, Liu dismantled the metal formworks and passed them to the Appellant. The Appellant then threw the metal formworks through the gap in the Wall. No hook was used by the Appellant to dislodge the metal formworks while both he and Liu were on the top level of the scaffold.

7 After removing the metal formworks from the top level of the scaffold, Liu moved to a lower level while the Appellant remained on the top level (near the gap in the Wall). Liu then prised part of each metal formwork away from the Wall and attached a hook (which the Appellant was holding onto) to the metal formwork, but without physically removing it entirely from the Wall. Using the hook, the Appellant then dislodged the metal formwork completely from the Wall, pulled it up to the top level of the scaffold and threw it through the gap in the Wall.

8 While the Appellant was lifting the dismantled metal formworks up to the top level of the scaffold to throw them through the gap in the Wall, he stood with one leg on the scaffold and the other leg at the gap in the Wall. This position was referred to by the District Judge as the “straddling position” (see the Judgment at [29]). The District Judge also noted that the Appellant had not adopted the straddling position at the beginning when he and Liu were working side by side on the top level of the scaffold (id at [32]).

9 As the Appellant was pulling the 30th piece of metal formwork up to the top level of the scaffold, he felt a sharp pain in the middle of his back, and stopped work immediately thereafter. Since then, the Appellant has sought medical treatment for his back injury and has also undergone a spinal operation. Ever since his injury occurred, the Appellant has mostly been on medical leave and has not been able to work.

10 The Appellant commenced this action against the Respondent claiming damages for pain and suffering, loss of earnings and medical expenses. At the trial, only the issue of liability was canvassed. Only the Appellant gave evidence for himself, while Liu and Au Yean Loy (“Au”), the Respondent’s safety officer, gave evidence for the Respondent. Both the Appellant and Liu gave evidence relating to the circumstances leading up to the former’s injury as well as the work processes involved in dismantling metal formworks from a wall, while Au gave evidence only in relation to the latter issue.

The District Judge’s decision

11 The claim by the Respondent that the Appellant’s injury had nothing to do with it was dismissed by the District Judge. In her view, there was insufficient evidence to support the Respondent’s contention that the Appellant had merely sprained his back while bending down to dismantle the metal formworks. Instead, she found the Appellant’s account, viz, that he had sustained his back injury while receiving and lifting the metal formworks, to be more probable. For the purposes of this appeal, counsel for the Respondent conceded that the Respondent’s case on this issue was a non-starter and did not pursue it.

12 The Respondent, the District Judge found, was prevented by conditions at the Worksite from using a crane to remove the metal formworks from the Wall. She held that the non-deployment of a crane per se did not mean that the Respondent had breached its duty to provide its employees with a safe system of work. In addition, the District Judge adopted the view that there was no evidence that the Respondent’s failure to provide the Appellant with a rope to dismantle the metal formworks constituted a breach of the Respondent’s duty to provide a safe system of work as the Appellant had not explained how the use of a rope could have prevented his injury. The Appellant did not take issue with either of these findings of the District Judge in this appeal.

13 The District Judge went on to consider if the Respondent had breached its duty to provide a safe system of work by not giving instructions to or supervising the Appellant and Liu vis-à-vis the dismantling of the metal formworks from the Wall. She found that the Respondent had not acted unreasonably in leaving the Appellant to draw on his expertise and his previous experience to determine how to carry out the dismantling work manually as the latter was familiar with the work processes involved in the manual dismantling of metal formworks (see the Judgment at [26]).

14 Further, the District Judge formed the view that, given that a crane could not be used to dismantle the metal formworks in this particular case, the system of pulling and lifting metal formworks while one was positioned with both legs on the scaffold was a safe system of work. In reaching her decision, the District Judge took judicial notice of the premise that the risk of the Appellant suffering a back injury would have been reduced if the latter had stood with both legs on the scaffold, instead of in the straddling position, while carrying out the dismantling work. She asserted (see the Judgment at [28]):

I would take judicial notice and agree with the [Respondent’s] submission that had the [Appellant] stood with both his legs on the scaffold platform providing proper weight distribution, balance and stability, the risk of back injury would be reduced.

For convenience, the above standing position, as described by the District Judge, will be referred to hereafter as the “scaffold position”. In the final analysis, after taking into consideration the lack of supervision by the Respondent on the one hand and the Appellant’s unilateral adoption of the straddling position (as opposed to the scaffold position) on the other hand, the District Judge apportioned liability for the Appellant’s injury at 70% to the Appellant and 30% to the Respondent. The crux of her decision was summarised at [33] of the Judgment, where she held:

From my analysis of the facts, the [Appellant] was primarily responsible for causing the injury to his back. The [Appellant] did not in his own interest … take...

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