District Court of Singapore

Mookan Sadaiyakumar v Kim Hock Corporation Pte Ltd
[2019] SGDC 34

Negligence – breach of duty – causation – contributory negligence

[LawNet Editorial Note: An appeal to this decision has been filed in HC/DCA 6-7/2019.]

18 February 2019

District Judge Loo Ngan Chor:

INTRODUCTION:

1 Parties have filed cross-appeals against my decision in this industrial accident matter. I now provide the full reasons for my decision.

2 The trial before me was only on the issue of liability, leaving assessment of damages for another day. The plaintiff testified for himself. The defendant called three witnesses, including the plaintiff’s supervisor at the material time, whom I shall refer to simply as Joshua.

LATTERLY, UNDISPUTED FACTS:

3 The plaintiff, an Indian national, was employed as a skilled worker by the defendant. Until the accident on 8^th August 2016, he had been so employed since July 2012.

4 The defendant recycles waste materials and operates power plants. I would suppose that a big part of this business involves the burning of waste wood to produce steam which is then used to run turbines for energy generation.

5 The burning of waste wood is done in boiler furnaces (“furnace(s)”, as the case may be) located on the ground level of the defendant’s factory. Residual ash from the burning falls through rotary valves and last into an ash bin. Occasionally, the rotary valves trip when metal objects found with waste wood fall into the valves along with ash, get lodged in the housing of the rotary valves and cause the affected furnace (including its rotary valves) to trip and stop operating.

6 Monitoring of the operations of the furnaces takes place in a control room on the second level of the factory. Computer monitors show the operations when the furnaces are operating all right and when a furnace trips. When tripping happens, a red signal flashes on the monitor and an alarm buzzer goes off. The supervisor would then send workers like the plaintiff to remove the metal objects lodged in the rotary valves. After this is done and communicated to the control room, a number of steps takes place there before the furnace can be re-activated.

7 The rotary valves, once tripped, do not re-start until the control room takes steps to re-start the operation of the furnace involved.^{[note: 0]}

8 The plaintiff’s job included emptying the ash bins, area cleaning and removing the metal objects lodged in the rotary valves housing.

9 Workers like the plaintiff work on two shifts. The plaintiff was on the night shift from 8pm to 8am when the accident occurred. He was with another worker and was supervised by Joshua who was positioned in the control room.

10 All of what I just mentioned was not in dispute, at any rate during the trial.

THE DISPUTE:

11 The plaintiff’s version is that at about 3am, Joshua had told him face to face to go to the furnace identified as T1 No. 3 as it had tripped. This same furnace had tripped earlier during their shift and the plaintiff says that Joshua said that the same furnace had tripped again. When he went to T1 No. 3, he removed the chamber cover of the inspection chamber and noted that the rotary valves had in fact stopped although ash entered his eyes. Using his hand phone torch, he noted the presence of a short steel bar in the housing of the rotary valves. He thus used his right hand, which was gloved, to try to retrieve the object when suddenly the rotary valves came back to life. He managed to pull out his right hand but not before he suffered crush injuries to several fingers of his right hand. He immediately contacted Joshua to stop the furnace and was eventually brought to hospital.

12 Joshua, in his affidavit of evidence-in-chief, explained the elaborate process, occupying a minute or two, which takes place in the control room in order to re-start a furnace which has tripped after the metal obstruction has been removed. This requires the supervisor to move to a breaker control panel 10 steps away from the main control panel to re-set the breaker, returning to the main monitor panel to re-set the alarm before going to the on/off switch.^{[note: 1]} Although placed under the heading above, the facts in this paragraph were not really disputed.

13 Joshua’s evidence was that furnace T1 no. 3 had tripped earlier but was working alright at the time when the plaintiff claimed that he was again sent to it because it had allegedly tripped again. Joshua said that the furnace that tripped this time around was that called T2 no. 8 and it was to this furnace that he had sent the plaintiff. As soon as the plaintiff called for help over the walkie talkie, he noticed on his computer monitor that furnace T1 no. 3 had tripped and, realising that something had gone wrong, rushed down to assist the plaintiff.

14 The defendant has counter-claimed for repayment of medical expenses paid on the plaintiff’s behalf and medical leave wages paid to the plaintiff as its case is that the plaintiff was solely to be blamed for the accident.

FINDINGS:

15 The plaintiff’s final version of the circumstances surrounding the accident – that he was directed to attend again to furnace T1 No. 3, that he found that it had tripped and stopped so that he opened up the chamber and then it suddenly restarted after he removed an obstructing object - is implausible. The fact of the matter, which was not disputed at trial, was that once a furnace trips, it does not re-start on its own until certain steps are taken in the control room.

16 Implausibility aside, the plaintiff’s early position, before the trial, contained two discrepant features which served to cast further doubt on the veracity of his final case.

17 First, the plaintiff had initially claimed that when an object lands on the rotating valves, Joshua would have to stop the operation of the furnace. He took this surprisingly incorrect factual point in the plaintiff’s pleaded case^{[note: 2]} and evidence-in-chief^{[note: 3]}, it being more apparent in the latter than the former. At paragraph 7 of his affidavit of evidence-in-chief, the plaintiff stated that “If there is an ash item (which is a short steel bar) that had obstructed the operation of the valve of the machine, the operator would stop the rotating valve in order for workers to remove the ash item from the machine.” (Italics added)

18 Secondly, as pleaded, the plaintiff’s stand was that someone had re-activated the furnace as he was removing the obstructing object when he averred, as two particulars of the defendant’s negligence, that the defendant had failed (a) “to ensure that the operator would not suddenly re-activate the rotation of the valve while the plaintiff was carrying out the task;” and (b) “to ensure that the operator give[s] any or any sufficient notice or warning to the plaintiff before re-activating the rotation of the valve”.

19 This point was not again expressly made in his affidavit evidence so that I took it to have been abandoned.

20 Hence, I found that when the plaintiff went to furnace T1 No. 3, it must have been in operation. He had gone to the wrong furnace, the correct furnace being T2 No. 8. The plaintiff was really quite careless to have failed to note the signs of furnace T1 No. 3 being in operation and then to have placed his right hand into the rotary valves housing, especially since he had to manually open the chamber of the furnace with the use of a spanner. In operation, the rotating valves cause vibration that can be felt and a noise that can be heard.

21 Given the considerations above, I would have dismissed the plaintiff’s claim. But, as I appreciated the story, it did not end just there.

22 I found it quite troubling that opening the chamber cover would not trip and stop the furnace. As I noted to the defendant’s learned counsel, Mr Ramasamy, when he played the first of three videos at the start of the trial, of the operation of the furnaces, this was an omission that metaphorically jumped out of the page at me.

Court:	What was that noise in the background?
Ramasamy:	That’s the machine noise.
Court:	Machine noise?
Ramasamy:	The machine runs.
Court:	I thought it stops.
Ramasamy:	Huh?
Court:	It doesn’t stop? When you open th--the doo---chamber door---
Ramasamy:	Uh-huh.
Court:	the machine doesn’t stop?
Ramasamy:	No, when he op---
Court:	It keeps going, is it?[note: 4]
…
Court:	You know what I’m saying? Another thing is this---the blast furnace, when you open the door---
Ramasamy:	Boiler furnace.
Court:	of the chamber---
Ramasamy:	Boiler furnace, Sir.
Court:	Oh, boiler furnace?
Ramasamy:	Uh-huh.
Court:	Boiler furnace. When you open the door of it, it does not automatically stop, as a safety feature?
Ramasamy:	No, it doesn’t.
Court:	Huh?
Ramasamy:	It doesn’t.
Court:	Because your client is saying what---what---what emphasis on safety and everything? The 1st thing that crossed my mind, how come when you open the chamber door, the thing’s still running?
Ramasamy:	No, the rotary valve does not stop when the chamber door is open. That---that was not how the---the---the manufacturers set it.
Court:	Set it?
Ramasamy:	Yah, the---they just buy it and then they still---under the---the---these are customised machines.
Court:	Sure, customised.
Ramasamy:	Yah. That’s why they are---they are commi---
Court:	For the future I’m---
Ramasamy:	testing and---
Court:	supposed look at all these things?
Ramasamy:	Yah.
Court:	Here the damage is done, so, we’ll see whether your client is responsible. Wait, this---there is basically these two big issues, whether automated---
Ramasamy:	Okay.
Court:	record or not---
Ramasamy:	Yah.
Court:	various---
Ramasamy:	Yes.
Court:	things. And then whether---why the chamber door doesn’t seem to---when it’s open, it doesn’t seem to stop the machine---
Ramasamy:	No---
Court:	the furnace.
Ramasamy:	the reason being, Sir, the chamber door is only opened when there is a trip and the machine stops. That’s only the instruction goes out if it’s troubleshoot.
Court:	You mean you are---wha---how would this accident happen?
Ramasamy:	Ah, that’s the thing. So---
Court:	You see what I’m saying---
Ramasamy:	Yah, you know. So, that’s how the---the manufacturers thought that would be the foresight at that point in time.
Court:	What sight?
Ramasamy:	The foresight of what the---the---the possible fault---fault---or dangers, you know,
Court:	Sure.
Ramasamy:	how can be reduced---nobody have the foresight to think that, you know, people can go to the wrong one and then what happens, you see? Yah, so, that’s how the---that’s why the---the matter has come to---to this stage.
Court:	Yah.
Ramasamy:	Because of that.
Court:	Well---
Ramasamy:	We have a dispute of fact.
Court:	Okay. Okay, With that we can start.[note: 5]
(Italics added)

23 This point about which I expressed concern at the outset of the trial was amply pleaded and the defendant had joined issue with that.

24 At paragraph 9a and b of the Statement of Claim, the defendant was said to have breached (a) s11 of the Workplace Safety and Health Act by failing to take “reasonably practicable measures to ensure that the workplace of the plaintiff and all plant, machinery and equipment kept in the factory were safe and without risks to health of the plaintiff” and (b) s12(1) and (3) in not “providing and maintain[ing] … a safe and adequate work environment as regards facilities and arrangements for his welfare at work.”^{[note: 6]}

25 By paragraph 6 of the Defence and Counterclaim (Amendment No. 1), the defendant denied any breaches as alleged in paragraph 9 (and 10) or at all.^{[note: 7]}

26 The plaintiff’s learned counsel, Mr Shanker Kumar, addressed this briefly by raising a kindred point (italicised below) in cross-examination of Joshua as follows:

QThat’s your understanding of it?

AYes. If it is closed, then you cannot put your hands in.

QYah.

ASo that is the safety.

QAlright. So as far as the chamber door is concerned, you don’t have a door which---which has---you have a chamber door which has to be manually removed, right?

AYah.

Q You don’t have the chamber door which has an automatic system where it shuts---it cannot be opened when the blades are running.

A Yes.

(Italics added)

27 In closing submissions^{[note: 8]}, Mr Shanker made the point, with the kindred point, as follows:

To the court’s question why does the rotary valve not automatically stop when the chamber door is opened, counsel for the defendant replied that the valves were ‘customised machines’. Joshua also agreed that the defendant did not have and has not introduced any safety feature that would keep the chamber door automatically locked when the rotary valve is running. Such a system will not allow anyone to manually open the chamber cover. (Italics added)

28 For his part, Mr Ramasamy altogether failed to deal with this issue which I had told counsel bothered me a great deal.

29 In Alam Jahangir v Mega Metal Pte Ltd [2018] SGHC 198 at [11]- [13] (which Mr Ramasamy referred me to for the distinct purpose of the defendant’s counter-claim for recoupment of paid medical expenses and leave wages), Choo Han Teck J dealt with an appurtenant issue and said this:

11 An employer’s duty to keep the workplace safe is a duty that is intended for the careful worker, it must contemplate dangers that lay in wait for the careless ones as well, but if a worker injures himself through his own carelessness, he must bear some responsibility for the mishap. The extent of his contribution depends on the facts, and the greater the carelessness the more responsibility he has to bear. Low level carelessness may include simple absent-mindedness or momentary inattention though this also depends on the activity in question. Recklessness will form the higher levels of contributory negligence, and this includes cases where pedestrians injure themselves when they dash across a road without looking, giving the motorist only a small chance of avoiding the accident. The degree of contributory negligence at the reckless level depends on the actor and the act, of course, but sometimes the circumstances may also ameliorate or aggravate the liability of the parties.

12 In this case, the defendant had bought the machine as it was, making no alteration or modification to it. If an accident had happened because of an unauthorised modification to a machinery, the employer who had modified it has to bear a greater responsibility for any accident that is attributed to that modification. The case before me is slightly different. The accusation here is that the defendant ought to have modified the machinery to make it safer. We can see at once how that complicates the apportionment of the defendant’s responsibility. The defendant bought the machine from an established manufacturer. Were it to modify the machine, it runs the risk of imposing a greater responsibility should the modification cause problems in the use of the machine, and ultimately, accidents.

13 The evidence before me indicates that, as it was, an open, unprotected rolling machine such as the defendant’s was a source of danger for careless employees, and some protective grating was probably needed. The manufacturer was not joined as a third party so we do not have its views as to why there was no factory fitted grating, and no further apportionment can be made so as to split the liability between the employer and the manufacturer. That leaves us with the conduct of the plaintiff. He was an experienced worker and was also a trainer of new workers on the use of the machine in question. He knew that should there be any need to stop the machine, the switch is close at hand, just about an arms-length away. When he found a metal can stuck in the rollers, he did not stop the machine. Instead, he stuck his hand between the running rollers in an effort to dislodge the can. This was an act of negligence bordering on recklessness.

30 I was of the view that either (a) a chamber cover which could be opened while the furnace was operating, without triggering a trip, or (b) a furnace was one whose cover could open while it was operating, simply failed to take account of staff safety. It was an obvious omission. On either count, the furnace was unsafe and the defendant was negligent. The Federal Court stated in Eng Lye Hup Co Ltd v Chua Sai Choo and anr [1968-1970] SLR(R) 19 said at [9]-[11]:

9 The question is what is the law to be applied to the facts of this case and the findings of the trial judge. In Paris v Stepney Borough Council [1950] UKHL 3; [1951] AC 367, Lord Normand approved and applied the observations of Lord Dunedin in Morton v William DixonLtd [1909] ScotCS CSIH_5; [1909] SC 807 at 809:

Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either — to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or — to show that it was a thing which was so obviously wanted that it would be folly in any one to neglect to provide it.

10 Lord Normand after quoting Lord Dunedin continued:

The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances, but it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.

11 Applying the test laid down by Lord Normand, can the facts of the present case justify a finding that a precaution against the ladder slipping when in use was necessary where there is no evidence at all that it is one taken by other persons in like circumstances? In my opinion clearly not.

31 On a later date when I gave parties brief reasons for my decision^{[note: 9]}, Mr Ramasamy, on my request, clarified that when he mentioned that the furnace was customised, he in fact meant that it was bought off the shelf, a point to which Mr Shanker said he took no objection.

32 At [58]-[63], the Court of Appeal in Parno v SC Marine Pte Ltd [1999] 3SLR(R) 377 provided useful qualitative guidance on aspects of contributory negligence which bears setting out:

Contributory negligence

58 Counsel for the appellant submitted that it was wrong to hold that the appellant was contributorily negligent to the extent of three-quarters. She admitted that he owed himself a duty to take reasonable care but submitted that he did not breach that duty in view of the work conditions and obligations that were present when the injury occurred.

59 The classic statement of the law on contributory negligence was expounded by Lord Denning MR in the well-known case of Froom v Butcher [1975] EWCA Civ 6; [1976] QB 286 at 291:

Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself.

60 Section 3(1) of the Contributory Negligence and Personal Injuries Act (Cap 54, 1994 Ed) provides as follows:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. [emphasis added]

61 In Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663, Lord Reid said at 682 that a court must deal broadly with the problem of apportionment and in considering what is just and equitable, must have regard to the blameworthiness of each party. The claimant’s share in the responsibility for the damage cannot however be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness. In Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 326 Denning LJ said that no true apportionment can be reached unless both the factors of blameworthiness or fault, and causation are borne in mind.

Causation

62 While in particular circumstances the determination of causation could be a matter of some difficulty, there was no doubt that in the present case the appellant’s negligence in approaching the hammer before the starter had come down was an operative cause of his injuries. Putting it another way, he would not have been injured but for the fact that he had stepped away from the platform and moved towards the hammer. This was as the trial judge had found and no issue was made of it in the appeal.

Blameworthiness

63 This is the major factor which a court has to consider when apportioning liability. The desirability of treating blameworthiness as the primary criterion in situations of this kind was clearly expressed by Lord Pearce in Miraflores v George Livanos (Owners) [1967] 1 AC 826 at 845:

Suppose that the workman was a normally careful person who, by a pardonable but foolish reaction, wanted to save an obstruction from blocking the machine and so put his hand within the danger area. Suppose further that the factory owner had known that the machine was dangerous and ought to be fenced, that he had been previously warned on several occasions but through dilatoriness or on the grounds of economy failed to rectify the fault and preferred to take a chance. In such a case, the judge, weighing the fault of one party against the other, the deliberate negligence against the foolish reaction, would not assess the workman’s fault at anything approaching the proportion which causation alone would indicate.

33 Hearkening to Parno, I did not think it right to be overly astute about the plaintiff’s carelessness. Nevertheless, in my estimation, each party’s carelessness brought about the accident in equal measure. But for the fact that the defendant, in breach of its duty to the plaintiff as its employee, deployed furnaces which (a) could be opened without tripping and stopping their operation or (b) did not stay locked when they were in operation, and thus be an obvious source of danger, the accident would not have happened. But for the fact that the plaintiff, even considering that he had worked seven hours when the accident happened in the wee hours of the morning, failed to mind his own safety, opened up the furnace in spite of its being obviously in operation, the accident would not have happened.

34 Had not the furnaces been off-the-shelf products, I would have assigned a greater liability to the defendant. It was reasonably practicable to have a furnace with either of the kindred safety features which are present even in the common household washing machine and clothe dryer. By the same token, had not the plaintiff been seemingly unthinking and almost reckless, I would have assigned to him a lower contribution. The parties’ respective blameworthiness was equal to each other. Like for the plaintiff in the instant case, where his carelessness bordered on the reckless, the High Court in Alam Jahangir apportioned liability at 50:50.

35 In respect of the plaintiff’s allegation that he was not provided with any personal protective equipment, I was satisfied that this was not so. He had a mask and goggles which he preferred not to use, a torch light which he said was not working and which he should have got replaced with a working one, and pliers which he did not use because he said they were unsuitable for the obstructing object.

CONCLUSION:

36 For the reasons set out, I decided that the defendant shall pay the plaintiff 50% of the damages to be assessed with costs and interest reserved to the assessing Registrar.

37 As for the counter-claim, [14] of Alam Jahangir states that medical expenses and medical leave wages are recoverable from the employee in the same proportion as the finding in regard to the plaintiff’s claim. Therefore, I decided that the plaintiff was to pay back the defendant 50% of the medical expenses and medical leave wages which had been borne by the defendant, the same also to be assessed, with costs and interest reserved to the assessing Registrar.[Context] [Hide Context]

^{[note: 0]}Transcript 21 Nov 2018, pp67-68

^{[note: 1]}BA41 para 10b of the AEIC.

^{[note: 2]}Statement of Claim BP 3 paras 4-6, 9i.

^{[note: 3]}BA2-3, paras 7-11.

^{[note: 4]}Transcript 21 Nov 2018 p19 ln11-22

^{[note: 5]}Transcript 21 Nov 2018 p31 ln15 to p33 ln12

^{[note: 6]}BP4

^{[note: 7]}BP27

^{[note: 8]}PCS

^{[note: 9]}NE 24 Jan 2019