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Subject:

Construction contracts

Chang Fah Lin


Vs
United Engineers
Kwan Hup Chee
Soo Yoon

Group 3
TORT
Ravi
Vaibhav LIABILITY
Parth Submitted To
Priya Dr. Ganesh Devkar
A documented contract was entered
between the first and second defendants
covering the erection of all the steel work
including roofing and painting. The
contract also stipulate that the supply of
all labour and necessary equipment for
the roofing work should come from the 2 nd
defendant.
Facts of Case
The second defendant arranged with the
third defendant for the supply of all
labourers including plaintiff. There was no
prior arrangement between the 2 nd and 3rd
defendants about the control and
supervision of the labourer.
Facts of Case
- There was no safety belt provided during
the work. There was no scaffolding being
built for the purpose of erecting the roof.
- On 28 June 1969, while working on the
roof the plaintiff slipped and fallen some
height 8m, sustaining severe injuries
(two fractures at vertebrae).
- The plaintiff discharged himself from the
hospital against the doctors advise. He
is completely non-ambulant and could
not even sit-up. If Chang Fah Lin did not
discharge himself, at least he can sit up
and propel himself.
Plaintiff
A workman engaged to fix zinc sheets on
a roof of a factory being constructed for
Eastern Oil Palm Ltd (owner) in Ulu Tiram,
Johor.
1st Defendant
United Engineers
Main contractor engaged by the owner
to construct the building.
Parties Involved 2nd Defendant
Kwan Hu Chee
The roofing sub-contractor
3rd Defendant
Soo Yoon
The headman (kepala) who was engaged
by the 1st and 2nd defendants to find
workers including the plaintiff.
Suits Trials
Hearing Date 21 January 1976, 6 June
1977, 8 June 1977 &
12 Sept 1977

Action Civil Suit


Lawyers G Tara Singh Sidhu for plaintiff
M Shankar for 1st defendant
Chew Siew Yoke for the 2nd
defend
Joginder Singh for the 3rd
defendant
Judge Abdul Hamid J
On 28 June 1969, while working on the
roof the plaintiff slipped and fallen
some height 8m, sustaining severe
injuries (two fractures at vertebrae).
The plaintiff alleged that at all times,
he was employed by either or all
defendants.
Plaintiffs Arguments
A few days before accident he asked
for safety belt to 3rd defendant, but he
was ignored. All the workers thought
that it was dangerous to work without
safety belts.
It was duty by either or all defendants
to provide a safe and proper system of
work.
According to the contract, the second
defendant became an independent contractor
and over whose action 1st defendant had no
control.
There was a contact between first and second
defendant which included supplying of
labourers and lifting equipments necessary to
complete the work.
1st Defendants
The plaintiff was the servant of the 3rd
Argument defendant and answerable to the 3rd defendant.
The safety devices were available at united
engineering premises. And soon yoon got them
from united engineering .
So, if only there was a negotiation or breach in
terms of contract, it was from 2nd defendant.
And so, the plaintiff should ask for
compensation from either defender 2 or
defendant 3. So, they plead not guilty.
The plaintiff was not employed as his labourer.

The 1st defendant was entirely responsible for the


provision of all safety for all workers within the
construction site including the plaintiff as stipulated in the
contract.

He sent tools, equipments and workmen to sub-contractor


soo yoon. And Soo yoon was person in charge.
2nd Defendant Argument
The accident was caused wholly by the negligence,
breach of duty or breach of the terms of the contract of
employment on the part of either the 1 st or the 3rd
defendants.

He did not supervise the work but he controlled the


manner of work. And the workers did not listen to him and
refused to follow instructions. And so the workers should
complain to soo yoon because they were under his
control.
He was only directed by the first defendant to
supply labourers. Thus it was the
responsibility of the first defendant to be
responsible for the safety.
The accident whereby the plaintiff was injured
was caused by reason of negligence on the
part of the first defendant and/or the second
3rd Defendants Arguments defendant
There was a written contract made between
the first and second defendants where the first
defendant expressly or by implication
accepted full responsibility and/or liability for
injury to all workers working at the factory site
The first and/or second defendant expressly
or impliedly undertook to hold the third
defendant harmless and to keep him
indemnified against all loss, expenses and
damage in respect of any injury to the
plaintiff.
He was one of the labour working
on that day. Safety belts were not
provided. But after a week of
accident they were provided. Third
defendant told to get safety belts
from united engineer.
Wong siew kong (witness):
But He (witness)was paid by third
defendant. And the third defendant
told him that he (witness) worked
for second defendant who had to
look for workmen during the
construction process.
Judgement Held
It was not for the plaintiff to establish precisely in whose employment he was. It was

sufficient if there was some evidence to show that he was engaged to carry out the work

by one of the defendants and that the accident did happen in the course of his work.

There was relationship of master and servant between all the defendants towards the

plaintiff.

Both the 2nd and 3rd defendants were jointly responsible for the control and direction of the

works to be executed by the workers. As between the 2 nd and 3rd with the plaintiff there

existed the relationship of employer and employee. As such, they owed a duty of care to

the plaintiff.

The 1st defendant was in fact occupier by reason of the fact that being the principal

contractor they had overall charge and control of the whole construction and had

possession of the construction site. Thus they owed a duty towards workmen lawfully on
Amount and Liability
The Plaintiffs claim was allowed.
Plaintiff entitled to RM93,000 in general damages & RM
28,800 for special damages.
Apportioned of responsibility
40 % to the 1st Defendant.
40% to the 2nd Defendant.
20% to the 3rd Defendant.
My Views
Agreed with the judgement
Supervision and provision of safety equipment falls into
the jurisdiction of the occupier.
The occupier is the party that has the overall
possession, occupation and control of the whole site.
The occupier has rightly identified as the 1st defendant.
The proportion of 40-40-20 was fair as it commensurate
and reflected the weight of responsibility of each
defendant.