Zheng San Gen v OGG Landscape Pte Ltd and Another

Tan Lee Meng J:

[2] According to Mr Zheng’s work permit, he was granted permission to work in Singapore for New Century Construction Engineering Limited. Although he was supposed to work in the construction industry, he was, for unexplained reasons, working for the first defendant, OGG Landscape Pte Ltd (“OGG”), a company in the landscaping business, at the time of his injury.

[3] On 9 November 2007, Mr Zheng was part of a team of workers deployed by OGG in landscaping projects in a number of places. In the evening of that day, OGG sent Mr Zheng to work in the garden of the second defendant, Mr Yong, who had engaged OGG to carry out landscaping work at his home at No 6, Salam Walk, Singapore 467154.

[4] While Mr Zheng was pruning the branches of a mango tree on Mr Yong’s property with an electric saw, he fell from the tree. As a result of the fall, he became permanently paralysed from the waist down. He sued his employer, OGG, and Mr Yong for damages with respect to the accident.

[5] OGG was sued for negligence in failing to ensure that it had a safe and proper system of work and that its employees were properly instructed to follow that system. As OGG did not enter an appearance, interlocutory judgment in default of appearance was entered against it. However, the likelihood of OGG, which was uninsured, paying any money to Mr Zheng is extremely remote.

[6] Mr Yong denied any liability whatsoever to Mr Zheng. He pointed out that OGG was an independent contractor and he was not responsible for its negligence as an employer of Mr Zheng.

[8] Mr Zheng appealed against AR Alam’s decision.

[13] Mr Yong’s counsel, Mr Danny Ong, asserted that the claim against his client is not bona fide and is merely an attempt to pressurise his client into offering Mr Zheng some money to get rid of a nuisance. He submitted that Mr Zheng’s claim should be made against OGG, for whom he worked, and not against his client, who had hired OGG as an independent contractor for landscaping work on his property.

[15] The simple answer to Mr Zheng’s claim in relation to OGG’s unsafe system of work and occupier’s liability is that his counsel, Mr Srinivasan, accepted during the hearing of the appeal that OGG was an independent contractor hired by Mr Yong to undertake landscaping work in the latter’s garden. An employer who has employed an independent contractor to do work on his behalf is, without more, not liable for any tort committed by the said contractor while carrying out the agreed work. This general principle was reiterated by the Court of Appeal in Management Corporation Strata Title Plan No 2297 v Seasons Park Ltd [2005] 2 SLR 613 at [37].

[16] As has been mentioned, Mr Zheng’s pleaded case against OGG is that his injuries resulted from OGG’s unsafe system of work. In relation to the claim against Mr Yong, the particulars of his alleged negligence, as pleaded in the Statement of Claim at [12], are that he had failed to remedy OGG’s unsafe system of work or practices and had failed to ensure that there was proper and effective supervision of the work being carried out in the garden. It was further alleged that Mr Yong had failed to devise a safe system to prune the mango tree and that he should have provided Mr Zheng with a proper platform, safety belt, lifelines and anchorages for the latter to work safely. Mr Zheng also contended that the question of occupier’s liability arose. Finally, he asserted that the doctrine of res ipsa loquitur applied to his case.

[17] Whatever duty of care Mr Yong may have owed Mr Zheng, it obviously did not, as the latter contended, extend to having to ensure that his independent contractor, OGG, had a safe system of work or that OGG had a proper and effective supervision of the work being carried out in the garden. More startling was Mr Zheng’s unsubstantiated assertion that Mr Yong had a duty to ensure that his independent contractor had properly equipped its workers for landscaping work in his garden. Furthermore, it is clear from the law that Mr Yong did not, as was alleged by Mr Zheng, have a duty to devise a safe system for OGG’s employees to prune the mango tree. Imposing such a duty on a layman who hires an independent contractor to prune a tree is clearly unwarranted.

[18] As for the question of occupier’s liability, in Ferguson v Welsh & Ors [1987] 1 WLR 1553 (“Ferguson”) Lord Keith said at p 1560 that it “would be going a very long way to hold that an occupier of premises is liable to the employee of an independent contractor engaged to do work on the premises in respect of dangers arising not from the physical state of the premises but from an unsafe system of work adopted by the contractor”. In the same case, Lord Goff shed more light on the position when he said as follows at p 1564:

[19] The reasoning in Ferguson was adopted in Mohd Sainudin bin Ahmad v Consolidated Hotels Ltd & Anor [1987] SLR 556 (“Mohd Sainudin”). In this case, the first defendant, the owner of a building site, appointed a main contractor for the construction of a building on the site. The plaintiff, an employee of the main contractor’s scaffolding sub-contractor, was injured when a brick fell on him while he was working at the building site. LP Thean J held that as the main contractor was an independent contractor, any negligence in relation to the falling brick would have been caused by or attributable to the main contractor. He added that the first defendant could not be vicariously liable for the negligence of the main contractor even if he was still the occupier of the construction site. His decision was affirmed by the Court of Appeal: Mohd Sainudin bin Ahmad v Consolidated Hotels Ltd and Another [1990] SLR 154.

[20] In Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal (“Mohd Sapri”) [1996] 2 SLR 505, the respondent, SB, who was engaged to construct and maintain a warehouse, appointed SE as its specialist sub-contractors for the installation of a sprinkler system in the warehouse. The appellant, P, who was hired by Mr Ishak, the independent sub-contractor appointed by SE to install the sprinkler system, was injured when he fell to the ground after the mobile staging platform that he was standing on toppled over. It was found that the accident occurred entirely because of P’s own negligence and/or that of his co-workers employed by Mr Ishak. It was held that SB could not be liable to P as the occupier of the building site since the accident had not resulted from any latent hazard existing on the site. The Court of Appeal, which endorsed LP Thean J’s earlier decision in Mohd Sainudin, reiterated as follows at pp 517-518:

[21] In view of the cases cited above in relation to occupier’s liability where an independent contractor is hired, Mr Zheng’s allegation that Mr Yong is liable as an occupier of his home does not have a leg to stand on. The mango tree was not inherently dangerous and the accident occurred as a result of operations carried out by the independent contractor at Mr Yong’s garden.

[22] I turn now to the doctrine of res ipsa loquitur, which was pleaded for unfathomable reasons. It is patently clear that this doctrine has no application in the present case because Mr Zheng had asserted material facts as to how he was injured. There being ample evidence as to how the accident occurred, the issue of res ipsa loquitur does not arise: see Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd [2006] 3 SLR 116.