Ma HongFei v U-Hin Manufacturing Pte Ltd and Another

Lai Siu Chiu J:

[1] This was a claim by Ma HongFei (“the plaintiff”) for personal injuries which he sustained on 5 June 2007, while working on a project called FPSO Mondo for Keppel Corporation (“Keppel”) at No. 49 Gul Road (“the premises”). The plaintiff was employed by U-Hin Manufacturing Pte Ltd (“the first defendant”) who at the material time, supplied workers to BT Engineering Pte Ltd (“the second defendant”) which company is in the business of fabricating offshore oil, gas and petrochemical equipment including pressure vessels. The second defendant was at the material time a subcontractor of Keppel for the construction of an oil rig.

[2] The facts of the case are fairly straightforward. The 29 year old plaintiff arrived in Singapore from China on 29 May 2007. On the morning of 5 June 2007, the plaintiff (who is a skilled electrical engineering technician) was assigned by the first defendant to work for the second defendant at the premises. The plaintiff was directed by his superior to use a grinder to smoothen the rim of a metal cable conduit tray (“the tray”). While he was doing the grinding, the plaintiff would periodically use his hands to feel around the rim of the tray to check for unevenness and/or jaggedness. This was to ensure smoothness of the surface.

[3] While the plaintiff was checking the rim of the tray with his left hand, a metal pipe measuring approximately 4m long with a diameter of 22cm (“the pipe”) dropped from above and struck his left index, ring and little fingers which were then on the rim of the tray. The plaintiff was taken to National University Hospital (“NUH”) where his injuries were found to be so severe that all three fingers of his left hand had to be amputated.

[4] The first defendant notified the Ministry of Manpower (“MOM”) of the accident on 11 July 2007 for purposes of claims under the Workmen’s Compensation Act, Cap 354 1998 Rev Ed (“the WCA”). The claim based on workmen compensation rates was subsequently assessed at $88,200. However, the plaintiff felt that the sum was too low for the disability he had suffered. Hence, he rejected the same and commenced this suit in February 2008 against both defendants, seeking damages at common law for his injuries. The plaintiff returned to Jiangsu Province, China, after his discharge from NUH and came back to Singapore for the trial. He is currently unemployed.

[5] In his statement of claim, the plaintiff alleged that he was a “workman” under the WCA, that both defendants were negligent and had breached their statutory duty inter alia in not ensuring that the pipe spool was guarded or shored to prevent it from falling or collapsing due to work being carried out in the vicinity. The plaintiff contended that the defendants had breached Regulation 19 of the Factories (Building Operations and Works of Engineering Construction) Regulations 1999 (“the 1999 Regulations”). The plaintiff further alleged that the defendants had breached Regulations 4(7), 35(1)(b) and (c), 46(1)(a) and (c), and 46(2)(b) of the Factories (Shipbuilding and Ship-Repairing) Regulations 1995 (“the 1995 Regulations”). It was also alleged that the defendants had failed to provide a safe system and place of work as well as a safe plant or equipment for the plaintiff. The plaintiff claimed special damages he had incurred totalling $13,589.21 which included loss of earnings as of 22 February 2008 at $51.67 per day. He claimed general damages which included loss of pre-trial earnings from 23 February 2008 to the date of trial.

[6] The first defendant denied that the plaintiff was a “workman” within the definition of the WCA and put him to strict proof. It contended that the company had been engaged by the second defendant to supply workers to the second defendant and the plaintiff was assigned by the first defendant to work for the second defendant at the premises. The first defendant averred that the plaintiff was working at the premises under the directions, control and management of the second defendant. Consequently, the first defendant denied that it had been negligent or that it had breached its statutory duties and or occupier’s duty.

[7] The first defendant further denied it was the occupier of the premises. As such, it did not owe any duty of care at common law or under the WCA to the plaintiff.

[8] The first defendant further alleged that the injury and loss sustained by the plaintiff from the accident was caused wholly or contributed to by the plaintiff’s own negligence.

[9] The defence of the second defendant similarly put the plaintiff to strict proof of his allegations. The second defendant added that it had engaged the first defendant as its independent subcontractor whose workers remained under the care, control and supervision of the first defendant.

[11] The second defendant denied that the provisions of the several regulations relied on by the plaintiff in [5] applied. Instead, it pleaded that s 60(1)(a) of the Workplace Safety and Health Act 2006, Cap 354A (“the Workplace Act”) applied and the plaintiff had no right of civil action.

[12] The second defendant further disagreed with the plaintiff’s version of how the accident occurred and referred to and/or relied on the notification of accident made by the first defendant to MOM on 11 July 2007 (“the Notification”) as being an accurate account of the accident.

[13] The second defendant added that at the time of the accident, no work was being carried out on or above the pipe as the pipe was waiting for quality control inspection. The second defendant further denied that the plaintiff was entitled to rely on the doctrine of res ipsa loquitur.

[14] In the alternative, the second defendant alleged that the plaintiff was negligent and he caused or contributed to the accident inter alia in the following manner by:-

[15] The second defendant relied on the letter of indemnity (see [25] below) to issue a notice under O 16 of the Rules of Court (2006 Rev Ed) (viz Third Party proceedings) to claim an indemnity and/or contribution against the first defendant for the plaintiff’s claim.

[16] Like the first defendant, the plaintiff was the only witness for his case while the second defendant called two witnesses. The trial was only to determine liability with the issue of damages (should the plaintiff succeed) held over to a later date to be dealt with by the Registrar.

[17] The plaintiff’s evidence-in-chief was brief and has been set out earlier in [2] to [3]. In cross-examination by counsel for the first defendant, the plaintiff revealed that it was the first defendant’s director Wong Shiu Hung (“Wong”) who told him on 4 June 2007 to go to the premises to do work for the second defendant together with about ten other workers from the first defendant. At the premises on both days (4 and 5 June 2007), the plaintiff was given instructions by a foreman of the second defendant. The plaintiff was told to put a steel structure on top of a metal structure and to install an electrical wire box on top of the steel structure; the plaintiff was familiar with the work as he had previously done it in China.

[18] Cross-examined by counsel for the second defendant, the plaintiff testified that it was a foreman of the first defendant who took him to the premises but that foreman did not give him any instructions or supervise his work. The plaintiff did not know who had installed the pipe that struck the fingers of his left hand. He was unaware that the first defendant was contracted by the second defendant to provide labour to carry out work for Keppel. However, the plaintiff denied he was working at the second defendant’s factory on the two dates in question instead of at the premises of Keppel.

[19] Wong’s testimony on behalf of the first defendant was not helpful as he did not witness the accident but came to know of it later. However, he was the person who lodged the Notification with MOM on behalf of his company, based on information provided by his younger brother Wong Shiu Weng who was the first defendant’s project manager. Wong revealed that his son Wong Peng Lam was the foreman for the Keppel job. He had another foreman called Yoong Chee Tak (whom the plaintiff knew as Ah Tak) who did not give the first defendant’s workers (including the plaintiff) any instructions on 4 or 5 June 2007.

[20] Wong said he did not give instructions to the first defendant’s workers. He confirmed that the premises (contrary to what the plaintiff said) were those of the second defendant and not Keppel’s whose shipyard (that of its subsidiary Singmarine) was at No. 55 Gul Road.

[21] The first defendant’s supply of labour to the second defendant was pursuant to a Purchase Order no. 31628 dated 15 May 2007 (“the PO”) issued by the latter to the former which stated:

Pursuant to the PO, Wong said the first defendant supplied 200 workers to the second defendant comprising of 13 foremen, two supervisors with the rest being ether general workers, fitters or welders.

[22] The Notification filed by Wong with MOM (see AB24-25) stated as follows:

[23] In cross-examination, Wong said that the pipe fell because its clamp was removed in anticipation of the quality control inspection. The pipe had been installed by workers of the two defendants under the supervision of the second defendant’s supervisor. Questioned by counsel for the second defendant, Wong explained that there was no temporary shoring or working work platform at the time the pipe fell because such supports had to be removed for the intended inspection. Had the quality control inspector from the second defendant come immediately to inspect, the omission of shoring would not have been a problem. Unfortunately, the inspector failed to show up for two days during which period the area around the pipe was not cordoned off.

[24] It was drawn to Wong’s attention (who claimed he was unaware) that the PO contained certain terms and conditions including the following clause 2 headed Indemnity:

Wong claimed the PO was given to the first defendant only after the accident but it was backdated to 15 May 2007 by the second defendant.

[25] Any ambiguities or doubts in the above badly drafted clause on the extent of the first defendant’s liability/responsibility to the second defendant were removed by the letter of indemnity (see 1DB2) which stated:

[26] The first defendant produced a copy of the cover note for the policy it had taken out for Workmen’s Compensation (with NTUC Income Cooperative Limited) for its machinists and welders (which would include the plaintiff). Unfortunately, it did not assist the first defendant in this case as the plaintiff had opted to make a claim under common law.

[27] In re-examination, Wong revealed that there was a crack in the welding of the pipe at the time which the defendants’ workers intended to repair after the pipe had been inspected.

[28] The second defendant’s witnesses were Robert Chan (“Robert”) its then safety officer (who had lodged with MOM an incident report on the day of the accident [“the Incident Report”]) and the second defendant’s manager for Quality, Health, Safety and Environment Chan Fook Yue (“Chan”). Robert (who is no longer in the second defendant’s employment) testified that at the material time the second defendant had about 800 workers at the premises including about three supervisors and 20 foremen.

[29] The Incident Report (see 1DB5) of Robert stated the following:

[30] Robert’s testimony was not particularly helpful as he was unable to provide any information on how the first defendant’s workers carried out work for the second defendant and who had given the former instructions. Indeed, Robert did not know what work the plaintiff was doing on 5 June 2007 as he was not even in Singapore that day. Consequently, the Incident Report he had lodged with MOM was based on hearsay evidence. Neither was Robert aware of the contractual conditions governing the relationship of the two defendants nor that of the work involved. Robert also could not explain how or why the pipe fell. He speculated that the welding may not have been done properly resulting in the crack in and subsequent fall of, the pipe. Robert in fact agreed with counsel for the plaintiff (at N/E 56) that the collapse of the pipe raised a strong inference that reasonable care had not been exercised in the welding of the pipe.

[31] Chan’s evidence was equally unhelpful. His written testimony focussed on the letter of indemnity in [25] pursuant to which he deposed that the second defendant should be indemnified by the first defendant against the plaintiff’s claim. Chan asserted that the first defendant was an independent contractor and the first defendant’s workers including the plaintiff, were under the sole control and supervision of the first defendant.

[32] Chan was not involved in the negotiations or signing of the PO in [21] above and he had no knowledge of the nature, the scope or the terms and conditions of the contract between the defendants. He was the quality assurance and quality control manager at the material time and he had a team of quality control inspectors under his charge who would check (in coordination with Keppel), the fabrication works carried out by the workers. Chan did not know who was the supervisor or foreman of the plaintiff, on the day of the accident. Neither could he tell the court who gave or could have given, instructions to the plaintiff that fateful day. Above all, Chan had no knowledge of how the accident occurred.

[33] The only issue for the court’s determination is who was negligent? I should point out at this stage that it was absurd of the first defendant (in its defence) to deny that the plaintiff was a “workman” within the definition of the WCA and to put him to strict proof when the plaintiff had been awarded (albeit it was rejected) a sum of $88,200 as compensation under the WCA (see [4]). Any plea denying his status as a “workman” was a non-starter. In any case, under s 2 of the WCA “workman” means:

[34] The plaintiff had deposed in his AEIC that he was paid a daily wage of $46.67 by the first defendant although in his statement of claim (at [5]) he claimed to be earning $51.67 per day. Based on $46.67, the plaintiff’s monthly wage would approximate $1,213.42 ($46.67 x 26 days) and if it was based on $51.67, it would approximate $1,343.42 ($51.67 x 26 days); either sum is below the statutory limit of $1,600.

[35] Before determining the issue at hand, I need to refer to the statutory provisions relied on by the plaintiff and the second defendant in their pleadings.

[36] The plaintiff had alleged that one or both defendants had breached Reg 19 of the 1999 Regulations as well as Regs 4(7), 35(1)(b) and (c), 46(1)(a) and (c), and 46(2)(b) of the 1995 Regulations (see [5] above).

[37] Regulation 19 of the 1999 Regulations reads:

The 1999 Regulations were revoked in 2007 and were replaced by the Workplace Safety & Health (Construction) Regulations 2007 with effect from 1 January 2008.

[38] The provisions under the 1995 Regulations that the plaintiff relied on read as follows:

The 1995 Regulations were revoked in 2008 and were replaced by the Workplace Safety and Health (Shipbuilding and Ship-Repairing) Regulations 2008 with effect from 1 August 2008.

[39] Section 60 of the Workplace Act states:

[40] It is unlikely that Reg 19 of the 1999 Regulations set out in [37] above is relevant. Although the word “structure” is not defined in the 1999 Regulations or in the Act, it should be read ejusdem generis with the preceding words “wall” and “chimney”. A structure must mean part of a building and would not include a loose pipe that was fabricated at the workplace.

[41] The provisions in the 1995 Regulations set out in [38] certainly do not apply to this case as the evidence before this court was that the premises were not a shipyard of Keppel but those of the second defendant. Further, there was no evidence that the plaintiff was working on a ship at the material time.

[42] The second defendant’s defence in [11] that s 60(1)(a) of the Workplace Act precludes the plaintiff from suing is a misreading of the provision. What the subsection means is, a contravention of the Act does not automatically confer a right of action on a workman per se. A breach of the statutory provision must be the cause of his injury before a plaintiff can rely on the breach to found his cause of action (see Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal [1996] 2 SLR 505). Hence, s 60 of the Workplace Act goes on to say:-

[43] In this case, there is no doubt that the failure to provide a temporary guard or shoring around the pipe caused the plaintiff’s injury. The question to ask is who was responsible?

[44] In Singapore the common law on occupier’s liability applies and the duty of care owed by an occupier (the second defendant) to the invitee (the plaintiff) is set out in Industrial Commercial Bank v Tan Swa Eng and another appeal [1995] 2 SLR 716 which in turn is derived from the English position spelt out by Willes J in Indermaur v Dames (1866) LR 1 CP 274 and which is as follows:

English cases after 1 January 1958 are no longer applicable due to the enactment of the UK Occupiers’ Liability Act 1957. The statute’s provisions replaced the common law duty of care which an occupier of premises owes to his visitors.

[45] At common law, the duty to an invitee is confined to the physical condition of the premises while the duty to take reasonable care to prevent damage from unusual danger applies not only to the structural condition of the premises but also “to the use which the occupier (or whoever has control so far as material) of the premises permits a third party to make of the premises” (per L Wright in Glasgow Corp v Muir [1943] AC 448 at 462). It was held by the Court of Appeal at [20] in Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd [1997] 3 SLR 677 that a main contractor owed a duty of care to a workman as if he was the workman’s “employer”, notwithstanding that the workman was not employed by him but by a subcontractor if he (the main contractor) exercised or had the right of control over the workman in respect of the work which the workman was engaged to perform.

[46] Based on the Notification at [22], there was little doubt as to how the plaintiff came to sustain his injury and ultimate disability, in the accident on 5 June 2007. Equally, it was clear from the evidence that the plaintiff’s conduct was not negligent in any manner that could have contributed to or resulted in, the accident.

[47] The pipe fell from above where the plaintiff was working due to the fact that its temporary shoring had been removed pending inspection by the quality controller(s) of the second defendant and/or of Keppel. It was also in evidence (from Robert) that the pipe had tilted just before the mishap and either due to that fact or the fact that the pipe itself was cracked because of faulty welding, the pipe fell and hit/injured the fingers on the plaintiff’s left hand.

[48] Although the plaintiff was employed by the first defendant, it was clear from his evidence which I accept (and which was corroborated by Wong of the first defendant), that he was given instructions that fateful day by the second defendant’s foreman or supervisor. The plaintiff’s evidence was not/could not be refuted by the second defendant’s witnesses as its first witness Robert was not present at the premises that day while its second witness Chan had testified that he had no knowledge who was the plaintiff’s supervisor or foreman on 5 June 2007.

[49] The second defendant’s pleaded case was that the plaintiff and other workers were supplied by the first defendant and the plaintiff was not its employee. Even if I accept this submission, it was clear from the evidence that instructions to the plaintiff and his co-workers came not from the first defendant but from the supervisor of the second defendant. Consequently, although the second defendant was not the plaintiff’s employer, as the occupier of the premises and the main contractor to whom the first defendant as its subcontractor supplied workers including the plaintiff, it was liable to the plaintiff for the pipe not having been shored or guarded, causing it to fall and injure the plaintiff (see Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd at [45] above).

[50] Having disposed of the issue of liability between the plaintiff and the defendants, I turn to look at the contents of the letter of indemnity in [25] to determine whether it absolves the second defendant (as it contended) from liability and that the first defendant should be the party that would be liable to the plaintiff.

[51] As indemnities like exception clauses, allows the indemnified party to escape liability, such documents should be strictly construed. The wording of the letter of indemnity focussed on the issue of workmen’s compensation. A reader of the document would note therefrom that the first defendant was obliged to indemnify the second defendant against liability for any claims for which the first defendant had taken out and maintained insurance coverage. This would apply to the compensation sum of $88,200 in [4] had the plaintiff accepted the amount assessed by MOM. However, the plaintiff rejected the compensation and opted to make this claim at common law.

[52] Accordingly, unless the first defendant had taken out insurance coverage for common law claims (for which there was no evidence), the second defendant cannot look to the first defendant under the letter of indemnity to escape liability for its own negligence.

[53] It bears noting too, based on Wong’s testimony in [24] which the second defendant’s witnesses neither challenged nor refuted, that the PO containing a similar indemnity provision under cl 2 therein was issued and given to the first defendant after 5 June 2007 but backdated by the second defendant to 15 May 2007, in an obvious attempt to escape liability.