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Suit No:	DC Suit 3360/2008, DA 50/2009
Decision Date:	12 Jan 2010
Court:	District Court
Coram:	Loo Ngan Chor
Counsel:	Perumal, Kamala Dewi for the plaintiff, Goh Peck San for the defendant

Judgment

District Judge Loo Ngan Chor:

1.         The defendant is a company whose principal business is that of general contractors in building construction work. The plaintiff was employed by the defendant as a construction worker.

2.         On 18^th November 2006, the plaintiff was deployed at the defendant’s work site (“the work site”) at and around The Singapore Power Building located at 111 Somerset Road.

3.         A part of the defendant’s work involved the use of a steel concreting pipe which led from the ground level on Somerset Road to the 17^th floor of The Singapore Power Building. The concreting pipe served as a channel through which cement was pumped from the ground onto the 17^th floor of the building by the use of a high-pressure machine on the ground. At the end of the day, the concreting pipe would have residues of cement to be flushed out. This was done by using an air compressor located at the 17^th floor of the building to shoot compressed air into the concreting pipe. The residues would be expelled at the ground end of the concreting pipe into a box (“the box”) made of timber and steel.

4.         On 18^th November 2006, the plaintiff was injured at the work site when he was struck in the region of his head by an object. The plaintiff says that the object was a metal object that flew from the box, which he says shattered.

5.         The plaintiff says that he and other co-workers were instructed by his supervisor (Ah Heng) to clean up cement waste around the box when the concreting pipe was being flushed. The plaintiff says that while he was thus engaged, he was injured as stated in [4] above.

6.         The plaintiff sued the defendant for causing his injuries by the defendant’s alleged negligence, breach of common law occupier’s duties and or breach of various statutory duties stipulated in the Workplace Safety and Health Act (Cap 354A), the Factories (Building Operations and Works of Engineering Construction) Regulations and Regulation 34 of the Workplace Safety and Health (General Provisions) Regulations.

7.         The defendant denies that the plaintiff was engaged in any work of the defendant at the time he was injured.

8.         At the trial before me, which was solely for me to determine whether and to what degree the defendant is liable, the plaintiff was his own, and only, witness. The defendant called four witnesses, Mr Lim Shi Min (the defendant’s managing director), Mr Neo Gek Beng (the defendant’s project manager), Mr Chong Yit Hwu (also known as “Ah Keng” the defendant’s supervisor) and Mr Adaikkan Pambaiyan (an employee of the defendant, allegedly a co-worker of the plaintiff, which the plaintiff denied).

9.         Mr Neo’s evidence was that the plaintiff and Adaikkan were with him outside a hoarded area; inside the hoarded area was where the box was located and the flushing work was going on. He said that the plaintiff and Adaikkan were “were specifically told not [to] go in until the compressor (at the top-end of the 17^th floor) had stopped).” Then Adaikkan said he was going to the toilet and “in split seconds” the plaintiff disappeared from view. He said that the plaintiff was walking within the hoarded area “not going in to do any clearance of debris” when a sponge-like ball used in the flushing of the concreting pipe burst out from the concreting pipe and struck the plaintiff.

10.       Mr Chong stated that he had “specifically told them” not to go into the hoarded area when flushing work was in progress. Mr Chong was not present at the time of the incident as he was moving about to co-ordinate work at the work site.

11.       I would say that, at this juncture, I checked the defendant’s evidence against their pleaded case. The Defence filed contained a bare denial[note: i] of the plaintiff’s allegations of being engaged in cleaning the ground following instructions and went on only to say that the workers were under strict instructions not to enter a hoarded area when the concreting pipe was being flushed[note: ii]. There was therefore no express statement in the Defence that the plaintiff was not acting in the course of his employment. The Defence was silent on its position as set out in [9] and [10].

12.       The rules of pleading require that a party’s material case must be stated in his pleading. This is for good and well-known reasons. So far as it is material, the defence evidence was that for a number of reasons, the plaintiff was injured while he was not engaged in any duties of his employment. These reasons were not expressly pleaded. Strictly speaking, the defence should even have been disallowed from setting up the details in [9] and [10]. The plaintiff, through counsel, did not adopt this stance. In my view, even if allowed to lead evidence which ought to have been pleaded and was not, the fact that the party’s pleading has been economical or silent on a material point seriously negates the corresponding evidence.

13.       Resuming the story, months after the event, the defendant’s safety officer, Mr Azman bin Ahmad, submitted a notification to the Ministry of Manpower of the accident. Admittedly, he had months to investigate the incident. This notification was in the agreed bundle of documents[note: iii]. In describing the incident, this is what was stated in the notification: “Injured and few workers were in the process of cleaning and dismantling the concrete. The first stage of the process involved a ball put into the concrete pipe at one end and air is blown in the pipe to help push the balance concrete in pipe out at the other end of the pipe. In the process of doing, the ball burst out of the pipe and hit the injured head.”[note: iv]

14.       Further down the notification, against the item “was the worker on official duty when incident took place”, the answer stated was “Yes”.[note: v]

15.       Mr Lim’s testimony was that the notification was prepared by the safety officer and it was vetted by him.[note: vi] The safety officer was not called by the defendant although their lawyer had indicated by letter to the plaintiff’s lawyer that Mr Azman was the defendant’s witness. Mr Lim said that Mr Azman had left the employ of the defendant and he did not consider it necessary to call Mr Azman to testify.[note: vii]

16.       I am of the view that the notification is a critical admission made by the defendant, which contradicts their testimony. It was admissible because it was apparently an admission of liability, whose authenticity was accepted by the defendant. If they recanted that admission, the defendant had the burden of proof of the contrary. They should have called the safety officer to explain the circumstances in which he came to make the notification. Even in re-examination, Mr Lim had no explanation to offer for the defendant’s change of tack[note: viii].

17.       The sum total of the evidence that emerged was that the plaintiff said that he was injured while discharging his duties as an employee. While in the evidence, the defendant denied that the plaintiff was engaged in any work, this position was altogether opaque in their Defence. It was contradicted by the admission the defendant made in the notification to the Ministry of Manpower, which was a notification made by an employee putatively responsible for such matters as the incident in question. It was approved by Mr Lim who proffered no explanation whatsoever why he now said the plaintiff had trespassed into a hoarded area and placed himself in harm’s way. The defence had imploded.

18.       The final surprise was at paragraph 1 of the defendant’s closing submissions dated 12^th November 2009. There, it was said that “the Plaintiff acted on his own volition against the express instruction of the employer. Even if the Defendant was liable, the Plaintiff was partially liable for his own injuries.” How the plaintiff might be thought to have contributed in anyway to the incident was not explained. While there may be circumstances where an employee injured in the course of his employment might be contributorily negligent, the sum total of the defence - that the plaintiff was on a frolic of his own - was surely a complete defence if proven, or not at all if not.

19.       I had no difficulty in finding the defendant wholly liable for causing the plaintiff’s injuries in respect of any of the causes of action outlined in [6] above. The defendant, as employer and occupier of the work site, had placed the plaintiff in harm’s way when they knew well the risks of which they did not or did not sufficiently warn the plaintiff and failed to ensure that the equipment and system worked according to design. This finding suffices without my having to say more.

20.       I entered interlocutory judgment in favour of the plaintiff for his damages to be assessed before a Deputy Registrar, with costs and interest reserved to him.

21.       The defendant has appealed my decision.

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