1 This is an appeal by Mr Nagarajan Murugesan, a construction labourer, who was injured at a worksite after an excavator unexpectedly moved forward and collided into him. In this judgment, I consider the liability of his employer, the main contractor and the third party whose construction site operated adjacent to the worksite where the accident took place. For the reasons set out, I allow the appeal to the extent stated in this judgment.

2 The appellant is an Indian national. He was employed by the first respondent, Grand Rich Electrical & Engineering Pte Ltd, as a construction labourer from 15 January 2019 to 16 May 2019. ¹ The second respondent, Yuan Ji Enterprises Pte Ltd, was the main contractor and occupier of the worksite located at Yishun Avenue 7, near Lamp Post 50 (the “Worksite”). ² It had been awarded a contract for the supply and installation of power cables, and subsequently engaged the first respondent as an independent contractor for the construction of pipe trench and joint pit/bay with steel decking. Among other things, the first respondent was obliged to supply an excavation team, which included an excavator and operator. ³ The third respondent, Eng Lee Engineering Pte Ltd, was the main contractor and occupier of the construction site located opposite the Worksite (the “third respondent’s Worksite”). It was also the employer of Mr Neelamegam Alagu (“Neelamegam”), a banksman who was working on the third respondent’s construction site. ⁴

3 The appellant claimed against the respondents for damages arising from an accident which took place on 16 May 2019 at the Worksite. ⁵

4 On 16 May 2019, the appellant was assigned by the first respondent to assist in the excavation work at the Worksite, in the role of a banksman. The appellant was to work with an excavator operator, Mr Jayaraman Vanmigunathan (the “Operator”), who was also employed by the first respondent. ⁶

5 The Worksite was situated on the second lane of a three-lane carriageway. As the construction work progressed, the Worksite would move within the lane further up along the road. ⁷ On the day of the accident, the Worksite was located adjacent to the third respondent’s Worksite, separated only by the third lane of the carriageway. ⁸ Barriers had been placed around the Worksite to delineate it from the other parts of the public road, which were still accessible to traffic. ⁹

6 At around 10.30am, one of the third respondent’s trucks (the “third respondent’s Truck”) arrived and was to enter the third respondent’s Worksite. However, there was insufficient berth for the third respondent’s Truck to reverse into the third respondent’s Worksite. ¹⁰

7 Thereafter, the excavator moved forward and collided into the appellant, causing him to fall down (the “Accident”). ¹¹ As a result of the Accident, the appellant suffered the following injuries: ¹²

(a) right foot open lisfranc fracture dislocation with severe degloving injury;

(b) right ankle medial malleolus fracture; and

(c) left bimalleolar ankle fracture with multiple associated foot fractures.

8 The appellant filed DC/S 1040/2019 against the first respondent on 14 October 2019 (“Suit 1040”). ¹³ The second and third respondents were joined as defendants to Suit 1040 on 8 July 2020 and 26 February 2021 respectively. ¹⁴ The trial on liability was held before the State Courts on 25 July 2022, and from 27 to 29 September 2022. On 28 July 2022, after the first tranche of the trial, the second respondent made an offer to settle with the appellant (the “OTS”). However, the OTS was not taken up by the appellant.

9 The appellant’s account of the events leading up to the Accident was as follows. The appellant had been at the Worksite when he observed that the third respondent’s Truck was attempting to enter the third respondent’s Worksite. The third respondent’s Truck had insufficient space to manoeuvre and blocked the flow of traffic. ¹⁵ Thus, the appellant gave the signal to the Operator to stop the excavator. After ensuring that the excavator had stopped, the appellant walked to the front right side of the excavator ¹⁶ to pull the water barriers inwards. This was to create more space for the third respondent’s Truck to move. ¹⁷ However, Neelamegam, the third respondent’s banksman, instructed the Operator to move the excavator forward. The Operator complied with Neelamegam’s directions. ¹⁸ As a result, the excavator collided into the appellant, causing the appellant to sustain severe injuries. ¹⁹

10 The appellant’s case was that the Accident was caused by the respondents’ breach of their common law and/or statutory duties. ²⁰ Among other things, the first respondent failed to implement the necessary safety measures, and the second respondent did not exercise effective supervision of the work being carried out by the appellant and Operator at the Worksite. The third respondent did not ensure that Neelamegam was sufficiently competent to give directions as a banksman. ²¹ Further or in the alternative, the respondents were vicariously liable for the negligence of their employees/servants/agents. In particular, the Operator had been negligent in moving the excavator in the absence of directions from the appellant, who had been the designated banksman. ²² Neelamegam was also negligent in directing the Operator to move the excavator forward without ascertaining whether it was safe to do so. ²³

11 Conversely, the first and second respondents’ version of the events was that prior to the Accident, all of the first respondent’s employees, including the appellant, were instructed to leave the Worksite to offload materials from a dump truck. The dump truck was parked behind the excavator. Only the Operator remained at the Worksite. Thereafter, a commotion occurred when the third respondent’s Truck was unable to enter the third respondent’s Worksite because it was blocked by the water barriers surrounding the Worksite. The appellant re-entered the Worksite on his own accord to pull the water barriers around the Worksite to create space for the third respondent’s Truck. However, the appellant failed to inform and/or alert the Operator that he had re-entered the Worksite. Further, while pulling the water barriers, the appellant stood in the excavator’s blind spot, in breach of the safety protocols of the Worksite. Neelamegam shouted at the Operator to move the excavator forward to make space for the third respondent’s Truck. The Operator complied, as he was under the impression that all of the first and second respondents’ workers had exited the Worksite and did not realise that the appellant was standing in the blind spot of the excavator. When the excavator moved forward, the excavator ran over the appellant’s foot. ²⁴

12 The first respondent conceded that it bore some responsibility to the appellant. ²⁵ However, the first and second respondents submitted that the second respondent was not liable to the appellant at all. First, the second respondent was not liable as an occupier of the Worksite – the physical condition of the Worksite had no bearing on the Accident. ²⁶ Second, the manner in which the work was carried out was not within the control of the second respondent. ²⁷ Third, no vicarious liability ought to be imposed on the second respondent for the negligence of the Operator. ²⁸ The first and second respondents also took the position that the third respondent ought to bear “nominal liability” for the Accident. This is because Neelamegam directed the Operator to move forward and failed to alert the Operator of the appellant’s presence, despite the appellant being in Neelamegam’s line of sight. ²⁹ Finally, the first and second respondents claimed that the appellant was contributorily negligent for, among other reasons, standing in the blind spot of the excavator without warning the Operator of his presence. In doing so, the appellant flouted the safety protocols implemented at the Worksite. Further, he did so while the excavator’s engine was still switched on. ³⁰ Therefore, the first and second respondents submitted that the apportionment of liability should be as follows: (a) appellant (50%); (b) first respondent (40%); (c) second respondent (0%); (d) third respondent (10%). ³¹

13 The third respondent denied owing any liability to the appellant. It claimed that it did not owe a duty of care to the appellant. In the alternative, even if the third respondent owed a duty of care to the appellant and Neelamegam did, in fact, instruct the Operator to move the excavator forward, the third respondent submitted that there was no reason for the Operator to listen to Neelamegam’s instructions. There was clear protocol that the Operator should only take instructions from the first respondent’s banksman, ie, the appellant. ³² However, on the basis that the third respondent was liable in negligence, the third respondent submitted that the appellant should be contributorily negligent to the extent of 50% against the respondents collectively because he knowingly placed himself in a dangerous position where he could not be seen by the Operator. ³³ The third respondent did not submit on the apportionment of the first and second respondents’ liability.

14 The learned District Judge (the “DJ”) gave his decision on 19 January 2023, and subsequently set out his full grounds of reasoning on 18 April 2023 (the “GD”).

15 First, the DJ held that the first respondent was liable to the appellant under the tort of negligence and the doctrine of vicarious liability (GD at [28(a)]). In terms of direct liability, the DJ found that the first respondent was negligent in failing to provide effective supervision of its employees (GD at [51]). The DJ accepted the appellant’s argument that when the third respondent’s Truck arrived, the failure of Nathan Raja, the first respondent’s supervisor, to coordinate the areas of the Worksite where the excavator had stopped amounted to a failure in his duty to effectively supervise the appellant and the Operator, and that this had contributed to the Accident (GD at [36]–[40]). However, the DJ did not find that the appellant had discharged his burden of showing that the safety measures put in place by the first respondent in relation to the operation of the excavator were inadequate (GD at [41]–[51]). In the alternative, the DJ held that the first respondent was vicariously liable for the negligence of the Operator in the management of the excavator
(GD at [52]–[60]).

16 Second, the DJ held that the second respondent was not liable to the appellant under both the tort of negligence and the doctrine of dual vicarious liability. The DJ was of the view that the second respondent owed a duty of care to the appellant (GD at [63]–[64]). However, the DJ disagreed with the appellant that the second respondent had breached its duty of care in failing to: (a) provide proper training and safety briefings for the appellant; (b) exercise proper supervision; and (c) coordinate and make arrangements between the Worksite and the third respondent’s Worksite (collectively, the “Worksites”)
(GD at [65]–[74]). In relation to the doctrine of vicarious liability, the DJ held that the relationship between the second respondent and the Operator was not similar or analogous to that of an employer and employee. The Operator was merely the employee of an independent subcontractor of the second respondent (GD at [78]). Further, the degree of control exercised by the second respondent over how the Operator did his work was extremely limited (GD at [79]). In any event, the relationship between the second respondent and the Operator did not create or significantly enhance the risk of the tort being committed (GD at [82]). Thus, the DJ concluded that the second respondent ought not to assume any liability for the Accident.

17 Third, the DJ found that the third respondent was liable to the appellant under the doctrine of vicarious liability for Neelamegam’s negligence. Neelamegam, the third respondent’s banksman, owed a duty of care to the appellant, given his physical and causal proximity with the appellant (GD at [95]). Further, the DJ made a finding of fact that Neelamegan instructed the Operator to move the excavator forward, and it was based on these instructions that the Operator did so (GD at [90]). This amounted to a breach of duty of care (GD at [96]). Neelamegam ought to have kept a look out and actively assessed the safety of the situation before giving instructions to the Operator to move the excavator (GD at [98]).

18 In terms of apportionment of liability, the DJ found the appellant contributorily negligent to the extent of 33.33%. The first and third respondents were liable to the extents of 56.67% and 10% respectively. The DJ granted the appellant interlocutory judgment against the first and third respondents for 66.67% of the damages to be assessed. The DJ made no contribution orders as between the first and third respondents, as contribution proceedings were not brought between both parties (GD at [29]).

19 The appeal against the DJ's decision is on the following grounds: ³⁴

(a) First, the DJ erred in finding that the first respondent had implemented adequate safety measures necessary to ensure safety in respect of the excavator at the Worksite.

(b) Second, the Trial Judge erred in finding that the second respondent did not breach its duty of care to the appellant. This is because the second respondent: (i) failed to provide proper training and safety briefings for the appellant; and (ii) did not exercise proper supervision and did not coordinate and make the necessary arrangements with the third respondent with respect to the movement of the third respondent’s Truck into the third respondent’s Worksite.

(c) Third, the DJ had erred in finding that the second respondent was not vicariously liable for the Operator’s negligence.

(d) Fourth, the DJ’s finding of the appellant’s contributory negligence was manifestly excessive. Instead, the first and second respondents should be liable to the extent of 80%.

(e) Fifth, the third respondent’s liability should be revised upwards from 10% to 20%.

(f) Sixth, should the appeal against the second respondent be dismissed, the DJ had erred in ordering that the appellant pays the second respondent costs on a standard basis up to the date of the OTS, and on an indemnity basis from 29 July 2022 to the date of the interlocutory judgment. The appellant submits that a Sanderson order would have been appropriate instead. ³⁵

20 In short, the first and second respondents take the position that the DJ’s decision ought not to be disturbed and that the appellant’s appeal ought to be dismissed with costs. ³⁶ The third respondent also submits that the appellant’s appeal against it should be dismissed. ³⁷

21 I will consider each ground of appeal in turn.

22 The legal requirements necessary to establish an action in the tort of negligence are as follows: (a) the defendant owed the claimant a duty of care; (b) the defendant’s conduct breached the duty of care by falling below the requisite standard of care; (c) the claimant has suffered loss; and (d) the defendant’s breach of duty was a cause of the claimant’s loss (Chen Qiangshi v Hong Fei CDY Construction Pte Ltd and another [2014] SGHC 177 at [125]).

23 To determine whether the first element (ie, a duty of care) has been established, the court applies the approach set out in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”). First, before a two-stage test is applied, there is a threshold requirement of factual foreseeability. This refers to a reasonable foreseeability and will almost always be satisfied. The first stage requires sufficient legal proximity, which is determined by the closeness of the parties’ relationship, including physical, circumstantial and causal proximity, having regard to factors such as the defendant’s assumption of responsibility and the plaintiff’s actual reliance upon the defendant. Where there is factual foreseeability and legal proximity, a prima facie duty of care arises. The second stage entails weighing policy considerations to determine whether the prima facie duty should be negated or limited (Spandeck at [73] – [86]).

24 The question of breach of duty requires an assessment of whether the defendant’s conduct has fallen short of the standard of care. Generally, the standard of care is the objective standard of a reasonable person using ordinary care and skill. A number of factors go into the determination: the likelihood and risks of harm, the extent of harm, the costs of avoiding harm, the defendant’s conduct or activity, the hazard or danger posed to the plaintiff and the industry standards or common practice (Gary Chan Kok Yew, The Law of Torts in Singapore (Academy Publishing, 2016) at paras 06.006, 06.018–06.037). Additionally, the standard of care is determined based on the reasonableness as determined at the time of the tortious event. The court should refrain from assessing the situation with the benefit of hindsight (PlanAssure PAC (formerly known as Patrick Lee PAC) v Gaelic Inns Pte Ltd [2007] 4 SLR(R) 513 at [54]).

25 It is undisputed that the first respondent, as the appellant’s employer, owed the appellant a duty of care to take reasonable care for the appellant’s safety at work (The Law of Torts in Singapore at para 04.010; also see Zheng Yu Shan v Lian Beng Construction (1988) Pte Ltd [2009] SGHC 6 at [38] and Parno v SC Marine Pte Ltd [1999] 3 SLR(R) 377 (“Parno”) at [46] and [48]).

26 The key issue in dispute is whether the first respondent had breached its duty to the appellant by failing to take adequate safety measures in respect of the excavator on the Worksite. In particular, the question is whether a reasonable employer of a banksman and excavator operator using ordinary care and skill would have implemented a horning system and installed additional cameras (that give the operator a live view of the blind spots of the excavator) onto its excavators. If so, the first respondent would be in breach for not doing so prior to the Accident.

27 During cross-examination, the director of the first respondent, Mr Arockiadoss Prem Kumar Sadeesh Mathew (“Arockiadoss”) testified that after the Accident, two additional safety measures have been implemented (the “Additional Measures”). First, a horning system has been instituted, whereby the excavator operator is required to “horn” once before moving off. Second, newer models of excavators that have cameras installed on the sides of each excavator are used. These cameras connect to a monitor within the cabin, which allow an excavator operator to have a better view of the blind spots of the excavator. ³⁸ Arockiadoss conceded that if the horning system had been implemented before the Accident, the Accident could have been avoided. ³⁹ It is equally likely that if the excavator had been equipped with the new cameras prior to the Accident, the Operator would have noticed the appellant thereby averting the Accident. As a result, the appellant submits that the first respondent ought to have implemented the Additional Measures prior to the Accident. Further, the fact that these steps were “quickly and readily implemented after the [A]ccident shows that more could and should have been done to ensure the safety of the [appellant] at the Worksite”. ⁴⁰ The DJ rejected the appellant’s argument as he deemed that the existing measures put in place by the first respondent were sufficient. In particular, the existing measures were: (a) the banksman system; (b) the loud beeping sound emitted by the excavator before it moved; (c) the Safe Work Procedure and Risk Assessments put in place by the second respondent, which the first respondent was required to comply with; and (d) the daily toolbox meetings where the first respondent’s employees were briefed to look out for the blind spots of the excavator (GD at [43]–[49]). Further, the DJ stressed the fact that the two Additional Measures were put in place after the accident did not, without more, suggest that the existing safety measures were inadequate (GD at [50]).

28 After considering all the evidence before me, I hold that the DJ erred on this issue. In particular, the first respondent had breached its duty of care by failing to implement the horning system.

29 In my view, the existing safety measures were inadequate. I illustrate this by describing how the existing safety measures operate together. I accept that the banksman system is a safety measure. An excavator operator may not have a complete view of his surroundings, but the banksman provides an extra pair of eyes to ensure that the excavator moves around safely in the Worksite. A banksman can ascertain whether any person is standing in the excavator’s blind spots. In essence, the banksman’s role is to guide the excavator’s movement with safety in mind. Next, the second respondent put in place the Safe Work Procedure for Operation of Excavator (the “Safe Work Procedure”), as well as the “Activity-Based Risk Assessment” (the “Risk Assessment”), which were to be implemented by the first respondent. For context, these documents set out the safety protocol for the operation of an excavator in a worksite. ⁴¹ For example, cl 4.2.6 of the Safety Work Procedure explicitly stated that the operator is “not allowed to operate the excavator” “in the absence of [a] banksman”. S/N (f) of the Risk Assessment stated that the excavator operator was “to move only [when] … given instruction (sic) by banksman”. ⁴² Ideally, an excavator operator would apply the safety protocol and only move the excavator on the instructions of the banksman. In addition, during the daily toolbox meetings, workers would be briefed to not stand in the blind spots of the excavator. However, if the excavator operator erred by moving the excavator without the banksman’s authorisation, there were no additional checks on safety. The DJ took the view that the loud beeping sounds emitted by the excavator would operate as a final check on safety, as the sounds would alert persons in the vicinity that the excavator was about to move (GD at [45]). However, I disagree that the beeping sounds were a safety measure. Neither the Safe Work Procedure nor the Risk Assessment mentioned the beeping sounds as part of the safe operation of an excavator. Let alone did these documents state that workers were to be alerted of the excavator’s movements through the beeping sounds. Mr Murugaiyan Velmurugan, the site supervisor of the third respondent, adduced the video footage of the Accident taken on the external camera of the excavator (the “Video”). Based on the Video, it was clear that the loud beeping sounds were made less than two seconds before the excavator moved forward and hit the appellant. This provided insufficient reaction time for the appellant to register the movement of the excavator and move out of its way. I also agree with the appellant’s submission that the beeping sounds easily blended into the background noise of the Worksite and the surrounding traffic, making the sounds less detectable. ⁴³ Therefore, the beeping sounds of the excavator were not a safety measure put in place by the first respondent. Instead, the beeping sounds emitted appeared to be inherent in the operation of the excavator. In contrast, the horning system would have required the operator to take the deliberate act of “horning” once before he moves the excavator. This would alert the workers that the excavator was going to move.

30 One relevant consideration in determining the requisite standard of care is the cost and practicability of steps to eliminate or mitigate that risk (BNJ (suing by her lawful father and litigation representative, B) v SMRT Trains Ltd and another [2014] 2 SLR 7 (“BNJ”) at [55]). The relevant risk in the present case is the risk of a worker being hit by an excavator at a worksite. I consider this factor in relation to whether the two additional safety measures ought to have been implemented before the Accident. In my judgment, the horning system is an extremely low-cost solution, and is simple to implement. To borrow the words of the House of Lords in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 AC 617, the “action to eliminate [the risk] presented no difficulty, involved no disadvantage, and required no expense”. In the first and second respondents’ case, they argue that the horning system “may impinge upon public safety given that it may sound similar to a car horning”, and that “this would confuse members of the public driving around the vicinity, possibly resulting in traffic accidents”. ⁴⁴ However, this argument is disingenuous and moot given that the first respondent did, in fact, implement the horning system after the Accident. Further, a horning system is not unprecedented. At the time of the Accident, cl 4.2.6 of the second respondent’s Safety Work Procedure required excavator operators to “horn 3 times then check back before reversing”. ⁴⁵ Under S/N (i) of the Risk Assessment, operators were also required to horn before reversing.. ⁴⁶ Therefore, it would be a simple matter to require excavator operators to horn before moving the excavator forward. In the GD, the Judge stated that “the sufficiency of the safety measures should be assessed based upon the state of affairs at the time of the accident, and should not be judged with the benefit of hindsight”, referencing BNJ at [92] (GD at [50]). In my view, the horning system was an entirely reasonable measure for the first respondent to have implemented at the time of the Accident; it did not become an obvious solution only with the benefit of hindsight.

31 On the other hand, I accept that the appellant has not discharged his burden of proof in relation to the first respondent’s failure to install cameras that give the operator a live view of the excavator’s blind spots. The appellant claims that “[c]ameras are easy to install and maintain”. ⁴⁷ However, the appellant has provided no evidence of whether cameras and live monitors could have been installed on the first respondent’s pre-existing excavators, and whether that would have been cost-efficient. In contrast, Arockiadoss gave evidence that the Additional Measures did not envision the “installation” of cameras at the side of each excavator, but rather that newly manufactured excavators came pre-installed with cameras. ⁴⁸

32 In terms of the magnitude of harm, excavators, with their size and power, can cause serious damage if they come into contact with workers at construction sites. ⁴⁹ Even though the appellant did not tender statistics of the frequency of excavator-related accidents to show the likelihood of harm, I accept that this was a real and not miniscule risk. Excavation is an inherently dangerous process. This is illustrated by the long list of potential safety hazards stated in the Risk Assessment. Weighing against these considerations was the relatively simple measure of implementing the horning system. Having regard to all the factors, I find that the first respondent had breached its duty to provide adequate safety measures by its failure to implement the horning system.

33 Before this court, the second respondent does not dispute the DJ’s finding that it owed a duty of care to the appellant, as the main contractor and occupier of the Worksite (see GD at [61]–[64]). In any event, I agree that the second respondent owed a duty of care to the appellant. Instead, the primary dispute concerns whether the second respondent had breached its duty of care to the appellant.

34 First, the appellant submits that the DJ erred in finding that the second respondent had not failed to provide proper training and safety briefings for the appellant. The appellant alleges that the second respondent’s site supervisor, Mr Kasinathan Ramesh (“Kasinathan”), failed to brief the appellant on the locations of the excavator’s blind spot during the toolbox meeting held in the morning of 16 May 2019. ⁵⁰ One such blind spot would be where the appellant was standing at the time of the Accident.

35 As a preliminary point, I clarify the appellant’s position right before the Accident took place. The appellant was at the front right corner of the excavator, next to the arm of the excavator and close towards the water barriers. He was facing away from the excavator and engaged in moving the water barriers inwards. This is shown in the Video, from which I have reproduced a still: