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

• Jurisdiction: Singapore
• Judge: Laura Lau Chin Yui
• Judgment Date: 27 March 2008
• Neutral Citation: [2008] SGDC 67
• Court: District Court (Singapore)
• Published date: 28 July 2008
• Year: 2008
• Plaintiff Counsel: Lin Shiu Yi and Belinda Kaur (Hoh Law Corporation)
• Defendant Counsel: Michael Eu (United Legal Alliance LLC)
• Citation: [2008] SGDC 67

27 March 2008 Judgment reserved.

District Judge Laura Lau Chin Yui:

1 The Plaintiff is a Chinese national. The Defendants, a construction company, were the main contractor of the construction project known as Lakeshore Condominium at Jurong West Street 41, Singapore (“the worksite”). The Plaintiff was employed by the Defendants as a construction worker.

2 The Plaintiff’s claim is for damages for injuries sustained in the course of employment at the worksite. He claimed to have injured his lower back and was diagnosed by the National University Hospital to have suffered a “possible prolapsed intervertebral disc”. Before me however, only the issue of liability was tried.

3 The Plaintiff testified at the trial. He called no other witnesses. The Defendants’ witnesses were one Liu Shao Jing who was the Plaintiff’s co-worker at the material time and Au Yean Loy, the Defendants’ safety officer. After considering the evidence adduced at the one-day trial and the written submissions tendered by counsel, I was of the view that the Plaintiff should bear the bulk of liability at 70%. Accordingly, I entered interlocutory judgment for the Plaintiff at 30% of damages to be assessed, with interest and costs reserved to the Registrar hearing the assessment. The Plaintiff has appealed against my decision. I now give my reasons.

The facts

4 The Defendants were the occupiers of the worksite as of 31 May 2005. At about 6:10 pm on 31 May 2005, the Plaintiff and his co-worker Liu Shao Jing (“Liu”) were instructed by their foreman to dismantle metal formworks from a wall at Tower 3A of the worksite. They carried out the dismantling work manually from a scaffold erected next to the wall; a crane was not provided to assist the Plaintiff and Liu in their task.

5 During the cross-examination of the Plaintiff, it transpired that the scaffold used by the Plaintiff and Liu consisted of 4½ levels, the bottom 2 of which were submerged in a 4-metre deep water reservoir. The height of each level was 1.7 to 1.9 metres. The Plaintiff and Liu were to dismantle the exterior formworks which covered an area measuring 5 metres by 4 metres. The exterior formworks were made up of about 50 individual pieces of formworks, each measuring 1.8 metres by 0.3 metres. The Plaintiff and Liu were to remove from the individual pieces from the wall, one piece at a time, working downwards from the top.

6 The work commenced with both the Plaintiff and Liu standing at the top level of the 4½-level scaffold. After Liu had dismantled the pieces of formwork, he passed them to the Plaintiff who in turn, threw the dismantled pieces to the ground at the interior of the wall, through a 2-metre wide hole in the wall. According to the Plaintiff, the hole was next to the scaffold, at its 4½-level point. The dismantled pieces of formwork would be hoisted away by a tower crane at a later time.

7 After the formworks within his reach from the top level of the scaffold had been dismantled, Liu descended the scaffold to the level below to continue the dismantling work. The work was carried out somewhat differently at this level. As Liu pried the pieces of formwork from the wall one at a time (without actually removing them), the Plaintiff used a hook measuring 2.5 to 3 metres long to pull each piece of formwork from its position and lift it upwards vertically through a 60-centimetre wide gap between the scaffold and the wall. The Plaintiff then threw the pieces of dismantled formwork through the hole in the wall. The Plaintiff stated that in order to receive the formworks from Liu through the 60-centimetre wide gap, he stood in an ‘awkward’ position with one leg positioned on the scaffold at the 4½ level and the other leg in the hole. In other words, the distance between the hole in the wall where the Plaintiff placed his leg and the scaffold where he placed the other leg was 60 centimetres.

8 The Plaintiff alleged that after receiving about 30 or more pieces of formworks, he felt a sharp pain to his back and let out a loud cry. When Liu came to ask the Plaintiff what had happened, the Plaintiff told him he had injured his back. As it was nearing the end of the work day, both the Plaintiff and Liu stopped work and returned to the hostel. The Plaintiff claimed that his back was “really painful” and when his condition worsened the next day, the Plaintiff informed his foreman and his boss, known to the Plaintiff as Steven, about the injury. Steven instructed the Plaintiff to seek medical treatment.

9 The Defendants admitted that the Plaintiff and Liu were instructed to dismantle metal formworks at the staircase wall of Tower 3A. The Defendants however, denied that the Plaintiff had injured his back in the manner described by him. They averred that there was no accident on 31 May 2005 involving the Plaintiff; the Plaintiff had merely sprained his back while bending down to dismantle formworks.

How did the Plaintiff sustain the alleged injury to his back?

10 To support the Defendants’ contention that there was “no accident” and thus, the Plaintiff’s alleged injury had nothing to do with them, the Defendants relied on statements recorded from the Plaintiff and Liu by their safety officer, Au Yean Loy (“Au”). The material part of the Plaintiff’s statement, recorded on 2 June 2005 (at AEIC75) reads:

“In the process of bending down to dismantle metal form, my back suddenly sprain; I felt great pain at my back, thus reported to my foreman. Foreman ask me to stop work and rest for the day (31/05/05). The next morning (01/06/05), my back sprain got serious, I could not work.”

In his statement, also recorded on 2 June 2005 by Au, Liu stated:

“In the process of work (dismantle metal form) Zheng Yu Shan, suddenly shouted “ah!” and told me his back very pain; He immediately went to report to his supervisor about the incident.”

11 In cross-examination, the Plaintiff asserted that his purported statement at AEIC75 was “not exactly correct” as he was not bending down, but was lifting when he sustained the back injury. AEIC75, albeit signed by the Plaintiff, was written in English. I may reasonably infer that the Plaintiff, being a construction worker from China, has no or very little knowledge of the English language and was unable to read what he had signed. Whilst Au asserted that he had asked the Plaintiff “what happened, wrote down, translated, so he signed on it”, Au also conceded at trial that he could possibly have recorded wrongly that the Plaintiff sprained his back while “bending down to dismantle metal form” (quoting from AEIC75). On his part, the Plaintiff claimed that he had written an incident report in Chinese which he submitted to Au. This report was not produced at the trial and the Plaintiff did not allude to its contents. From Au’s evidence, it appears that the only statement from the Plaintiff to the Defendants was the one at AEIC75 which Au said he wrote on the Plaintiff’s behalf “when he was unable to write”. In my view, nothing turns on the alleged Chinese incident report, since the Plaintiff made no more than a vague assertion for the first time at the trial about its existence.

12 Although Liu was working with the Plaintiff at the material time, he claimed that he “did not see” the Plaintiff standing with one leg in the hole and the other on the scaffold. Because Liu had a “tacit understanding” with the Plaintiff, i.e. that the Plaintiff would put down his metal hook to lift up the formworks upon seeing that Liu had pried the pieces of formworks from the wall, Liu did not always look up at the Plaintiff during the dismantling works.

13 Since, from Liu’s evidence, he had no knowledge as to how the Plaintiff sustained his back injury, of significance then, would be the statement or the testimony of the Defendants’ foreman. According to the Plaintiff, he had reported his injury to the foreman the next day. Au stated that he “should have” interviewed the foreman during his investigations, but could not recall if he actually did so. Although he conceded that the foreman’s statement was important to the court proceedings, Au could not explain why his statement was not adduced in evidence. Given that the foreman was still in the Defendants’ employment, the Defendants should have had no difficulty calling on him to testify at the trial.

14 With the Defendants’ omission to call the foreman as a witness, Liu’s apparent lack of knowledge as to how the Plaintiff sustained his injury and Au’s concession that he may have recorded the Plaintiff’s statement at AEIC75 wrongly, there is in my view, insufficient evidence to support the Defendants’ contention that the Plaintiff sprained his back while bending down to dismantle formworks. In contrast, the Plaintiff was fully aware as to how his back injury was caused. He has maintained throughout the proceedings, right from the commencement of the action, that he sustained the back injury while receiving formworks with one leg placed on the wall and the other on the scaffold. At trial, the Plaintiff described in a forthright manner, the set-up of the scaffold in relation to the wall, explained in detail the dismantling process and indicated on photographs (AEIC20) his standing position on the scaffold and wall. In the premises, I find the Plaintiff’s version i.e. that his back injury was sustained as he was receiving and lifting formworks whilst standing with one leg in the hole of the wall and the other on the scaffold, to be the more probable.

System of work

15 In Wilsons & Clyde Coal Co v English [1938] AC 57, Lord Wright pronounced that an employer’s obligation to his employee under the common law is threefold: “the provision of a competent staff of men, adequate material, and a proper system and effective supervision”.

Lifting machines, appliances or gears

16 What is at issue in the present case is the provision of a proper system of work, specifically that the Defendants had failed to provide “proper lifting...