DUTY OF CARE AND ADEQUATE SAFETY MEASURES
It is important to ensure that work sites are safe places to work in. The recent case of Nagarajan Murugesan v Grand Rich Electrical & Engineering Pte. Ltd. & 2 Ors [2024] SGHC 36 (“Nagarajan v GR”) is a reminder of this.
Background. The appellant is an Indian national employed by the first respondent, Grand Rich Electrical & Engineering Pte Ltd (“Grand Rich”), as a construction labourer (Nagarajan v GR [2]).
The second respondent, Yuan Ji Enterprises Pte Ltd (“Yuan Ji”), was the main contractor and occupier of a worksite located at Yishun Avenue 7, near Lamp Post 50 (the “Worksite”) (Nagarajan v GR [2]).
The third respondent, Eng Lee Engineering Pte Ltd (“Eng Lee”), was the main contractor and occupier of a construction site located opposite the Work Site, and the employer of Mr. Neelamegam Alagu (“Neelamegan”), a banksman working on Eng Lee’s worksite (Nagarajan v GR [2]).
On the day of the accident, the appellant was assigned by Grand Rich to assist in the excavation work at the Worksite as a banksman, and was working with an excavator operator (also employed by Grand Rich) (Nagarajan v GR [4]). The appellant was then injured in the course of carrying out his works as a banksman by an excavator, resulting in various injuries (Nagarajan v GR [7]).
The first instance decision. The appellant then commenced a suit against Grand Rich, and Yuan Ji and Eng Lee were joined as defendants to the suit (Nagarajan v GR [8]).
The District Judge found that:
Grand Rich was liable under the tort of negligence and the doctrine of various liability for failing to provide effective supervision, though the appellant failed to show that the safety measures put in place by Grand Rich were inadequate (Nagarajan v GR [15]);
Yuan Ji was not liable under the tort of negligence and the doctrine of dual vicarious liability, as, among others, Yuan Ji did not breach its duty of care and the relationship between Yuan Ji and the operator of the excavator was not similar nor analogous to that of an employer and employee (Nagarajan v GR [16]);
Eng Lee was liable to the appellant under the doctrine of vicarious liability for Neelamegam’s negligence as Neelamegam owed a duty of care to the appellant and it was Neelamegam who instructed the operator to move the excavator forward (Nagarajan v GR [17]); and
The appellant was contributorily negligent to 33.33%, Grand Rich was liable to 56.67%, and Eng Lee was liable to 10%.
Results of the appeal. The appellant successfully appealed against the District Judge’s decision.
In brief, the High Court held that (Nagarajan v GR [84]):
Grand Rich was in breach of its duty by failing to take adequate safety measures, and in particular, in failing to implement a horning system;
Yuan Ji was in breach by failing to coordinate between the Work Site and Eng Lee’s worksite and was hence liable to the appellant in negligence;
The respondents were more blameworthy than what the District Judge had found and the appellant was therefore only contributorily negligent to the extent of 10% (down from 33.33%); and
The respondents were held to be jointly and severally liable for 90% of the damages to be assessed.
For the purposes of this blog, we will just focus on two aspects of this case, being:
The issue over the horning system; and
The coordination issue.
The Horning System. The horning system issue can be summarised as follows: Was Grand Rich in breach of its duty to take reasonable care for the appellant’s safety at work by failing to implement a horning system whereby the excavator operator is required to “horn” before moving the excavator (Nagarajan v GR [26] – [27])?
It appears from the judgment that the following factors are key in finding that Grand Rich was in breach for failing to implement such a system:
This “horning system” was implemented after the accident as a safety measure (Nagarajan v GR [27]);
Grand Rich’s director conceded on cross-examination that if this system was implemented, the accident could have been avoided (Nagarajan v GR [27]);
The beeping sounds emitted by an excavator were not a safety measure was neither the relevant safe work procedure nor risk assessment indicated it as being part of the safe operation of an excavator (Nagarajan v GR [29]);
Further, the beeping sounds did not provide sufficient reaction time for the appellant to register the movement (Nagarajan v GR [29]), especially since it could easily blend into the background noise of the Worksite and traffic (Nagarajan v GR [29]); and
Significantly, it was “extremely low-cost” and “simple” to implement the horning system (Nagarajan v GR [30]). Compared to the risk, the “action to eliminate [the risk] presented no difficulty, involved no disadvantage, and required no expense” (Nagarajan v GR [30]), and such a system was not unprecedented given that Yuan Ji’s safety work procedure also required excavator operators to “horn 3 times then check back before reversing”.
Given that “[e]xcavation is an inherently dangerous process” (Nagarajan v GR [31]), the High Court therefore held that Grand Rich breached its duty to provide adequate safety measures by failing to implement the horning system.
This stood in contrast to the High Court’s finding that the District Judge was right in finding that the appellant failed to show that Grand Rich’s failure to install cameras that would provide the excavator operator with a live view of the excavator’s blind spots amounted to a breach of Grand Rich’s duty of care (Nagarajan v GR [31]).
Yuan Ji’s liability. The High Court also held that Yuan Ji was liable for failing to exercise proper supervision.
This was because the High Court held that Yuan Ji breached its duty of care by failing to coordinate arrangements between the Worksite and Eng Lee’s worksite (Nagarajan v GR [46]). What was relevant was that the two worksites were only “narrowly separated by a single lane on the carriageway” (Nagarajan v GR [47]) and Yuan Ji’s employees knew they were responsible for coordinating both worksites (Nagarajan v GR [47] – [48]). This was in addition to Yuan Ji’s contractual obligations (Nagarajan v GR [47]).
On the facts of the case, the High Court found that Yuan Ji’s site supervisor’s efforts to coordinate the two worksites were “plainly inadequate” as when he went to Eng Lee’s worksite, he failed to make any arrangements to coordinate the traffic in the lane between the two worksites (Nagarajan v GR [51]). The High Court held that the site supervisor ought to, at a minimum, provide a point of contact to Eng Lee to allow Eng Lee the ability to inform either Grand Rich or Yuan Ji if large vehicles needed to turn into Eng Lee’s worksite (Nagarajan v GR [51]). Further, while Yuan Ji submitted that it had deployed two traffic controllers (Nagarajan v GR [52]), the High Court found that Yuan Ji had not ensured that the traffic controllers were present at the material time.
Conclusion. Safety is paramount at construction sites. The riskier the nature of the work that is being carried out, the more the law would expect in terms of the nature of safety measures that are being implemented.
While the horning system in the present case is “low cost”, it must nonetheless be borne in mind that just because a safety measure is expensive would not necessarily mean that it was reasonable therefore not to implement the measure: it all depends on the nature of work in question. It may be that an expensive safety measure is not always necessary, but this ought to be something that is determined only after a careful risk assessment has been carried out.
Further, as this case illustrates, liability for accidents may be borne not just by the employer of the injured employee. Additionally, while this is a civil suit, it must also be borne in mind that there can be criminal liability under various legislations, such as the Workplace Safety and Health Act 2006.
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