1  Uddin Mohammad Zosim (the “Claimant”) was at all material times an employee of CES Engineering & Construction Pte Ltd (the “Defendant”) and was employed by the Defendant to perform general construction work. This is the Claimant’s claim against the Defendant in negligence and for breach of its statutory duties under the Workplace Safety & Health Act 2006 (“WSHA”) in respect of injuries suffered in an accident.

2 On the first day of trial, the Claimant amended his statement of claim and evidence ¹ to put the accident as happening on 26 April 2022 instead of 28 April 2022. He claimed that sometime on or about 26 April 2022, he was tasked to bend rebars at a worksite and used a 25M rebar bender to do so. As he was carrying out the task, the rebar broke. As a result, the Claimant was flung about 2 metres away and landed on the formwork metal, suffering injuries as a result.

3 The Claimant claimed that the Defendant was negligent in

4 The Claimant also claimed that the accident was caused by the Defendant’s various breaches of its statutory duties under the WSHA, including

5 The Defendant claimed that the Claimant was assigned to bend rebars at the worksite using a rebar bender consisting of two short rebars welded together about 10 to 15 centimetres long and a long rebar measuring about 1 to 1.5 metres long.

6 The Defendant claimed in the Defence that when the Defendant’s site supervisor, one Wang Fenguan (“Wang”), inspected the alleged accident scene on 26 April 2022, he did not notice any broken rebars. Instead, Wang noticed some chipping of the precast wall at the base of one of the bent rebars and abrasions on the Claimant’s left forearm. The Claimant declined consulting a doctor and continued to work after receiving first aid treatment from Wang.

7 The Defendant claimed that it had taught the Claimant how to carry out his work task safely and that he had been performing the said work task without incident since he was employed by the Defendant in 2019.

8 The Defendant denied that it was negligent and claimed that the Claimant’s injuries were caused wholly by or contributed to by the Claimant’s own negligence in

9 The Defendant denied that it has breached any common law or statutory duties required of them.

10 Under section 60(1) of the WSHA, nothing in the Act is to be construed as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Act. As such, there is no basis for any claim on the ground of any breach of the Defendant’s statutory duty under WSHA.

11 In relation to negligence, the four-fold test is outlined in Chen Qiangshi v Hong Fei CDY Construction Pte Ltd [2014] SGHC 177 at [125]: (a) the defendant must have owed the claimant a duty of care; (b) the defendant’s conduct must have breached the duty of care by falling below the requisite standard of care; (c) the claimant must have suffered loss; and (d) the defendant’s breach of duty must have been a cause of the claimant’s loss.

12 It was not disputed that the Defendant, being the Claimant’s employer, owed the Claimant a duty of care. As the trial was conducted on a bifurcated basis with trial on responsibility to proceed first with causation and quantum reserved ² , the issues in the present case were as follows:

13 Following the Claimant’s amendments to the Statement of Claim and his affidavit of evidence-in-chief (“AEIC”), it is the Claimant’s case and evidence that he was tasked to bend rebars on 26 April 2022 when the rebar broke. He fell facing up and injured his back ³ .

14 The Defendant claimed that the Claimant’s evidence was not credible because he had been inconsistent as to the date of the accident and how he fell. The Defendant also argued that the Claimant did not injure his back on 26 April 2022 because he did not complain about his back injury until 9 May 2022 when he sought treatment from Dr Tang Teck Ung at SATA CommHealth Medical Centre (“SATA”).

15 The Defendant highlighted that the Claimant had initially put the date of the accident on 29 April 2022. In the Incident/Accident Investigation and Analysis Report, the Claimant appeared to have stated in his witness statement ⁴ that the accident happened on 29 April 2022 and he fell down at 4 p.m. The date/time of the witness statement was also stated to be 29 April 2022 at 4 p.m. However, it was the evidence of Eto Tomharu, Fu Chun (“Eto”), the safety officer from the Defendant, that no investigation was carried out on 26 April 2022 ⁵ and it was only on 12 May 2022 that he had contacted Ali MD Sakendar (“Ali”), the Defendant’s safety supervisor, to assist with explaining to the Claimant the purpose of the witness statement, after which the Claimant had filled in the form on his own ⁶ . This meant that even on the Defendant’s case, the date and time of the witness statement was not accurately reflected. The Claimant had also denied penning the date of 29 April 2022, which appears in a different colour ink from the rest of the statement ⁷ . As such, I did not think much weight could be placed on the date of the accident that was indicated on the form.

16 It would also appear that the Claimant had sought medical attention at the Emergency Department of Tan Tock Seng Hospital (“TTSH”) on 20 May 2022 and was given a referral letter, which stated that he suffered a workplace injury and fell on 29 April 2022. The Claimant therefore appeared to be under the impression that the accident happened on 29 April 2022. However, the maker of this statement was not called and this apparent inconsistency was not put to the Claimant while he was on the stand.

17 Subsequently, the Claimant was fairly consistent in putting the date of the accident as 28 April 2022 in the WSH Incident Report dated 16 June 2022 ⁸ , in his account to Dr Sayampanathan on 28 December 2022 as reflected in Dr Sayampanathan’s medical report ⁹ , the Statement of Claim and his AEIC. This appeared to be a mistake, given the WhatsApp message dated 26 April 2022 copied in the incident investigation report.

18 Dr Tang who examined the Claimant on 9 May 2022 had obtained information from the Claimant that the Claimant had pain for approximately a week after an accidental fall during work and was unable to confirm if the Claimant did indeed fall ¹⁰ or the date that the Claimant had a fall ¹¹ . The Defendant argued, based on Dr Tang’s evidence, that the Claimant’s account to him would have put the accident on 2 May 2022. I did not draw such an inference from Dr Tang’s evidence. In Dr Tang’s report, the Claimant was recorded as complaining of a painful lower back for one week after an accidental fall during work. Dr Tang’s evidence was that the Claimant had told him that he had the accidental fall about a week before he visited the clinic ¹² . Although that would suggest that the fall happened on 2 May 2022, this did not mean that the Claimant had told Dr Tang that the fall happened on 2 May 2022. As Dr Tang testified, no exact date was given ¹³ . Dr Tang had no personal knowledge as to whether the Claimant had a fall ¹⁴ and was unable to confirm the date on which the fall took place ¹⁵ . While Dr Tang testified that pain symptoms would surface within one or two days from the day of the fall and that it was likely that the fall would have occurred in May 2022 ¹⁶ , he also testified that the Claimant’s symptoms were consistent with a fall that happened on 26 April 2022 ¹⁷ and disagreed with the suggestion that the Claimant did not have a fall or injure his back on 26 April 2022 ¹⁸ .

19 Based on the evidence, the Claimant appeared to be unclear about the date on which the accident happened. However, he has given details about the accident which correspond to those of an accident which happened on 26 April 2022 which both Wang and Ali testified to. Hence, I do not find that the Claimant’s inconsistency about when the accident actually happened materially impacted his credibility. Given that the Defendant did not dispute that there was indeed an accident on 26 April 2022 in which the Claimant was bending rebars and fell, injuring himself, I accept the Claimant’s evidence that there was indeed an accident on 26 April 2022 in which he was bending rebars when he fell, injuring himself.

20 The Defendant argued that there was no evidence that the Claimant had suffered a back injury during the accident on 26 April 2022. However, the Claimant had given evidence that he fell facing up and injured his back during the accident on 26 April 2022 ¹⁹ , which evidence was corroborated by Wang’s witness statement filed on 21 June 2022 that the Claimant had fallen backwards and landed on the floor ²⁰ . The Claimant also explained that he did not seek medical attention immediately after the accident as he did not feel the pain until he had gone back to work ²¹ . In addition, in the immediate period after the accident, his supervisor Ali had gone on leave ²² , which Ali confirmed on the stand ²³ .

21 While the Claimant was on the stand, paragraph 5 of Ali’s AEIC, as set out below, was interpreted to him:

22 Paragraph 8 of Wang’s AEIC, as set out below, was also interpreted to him:

23 When paragraph 5 of Ali’s AEIC was interpreted to the Claimant, he only took issue with the last sentence. The Claimant claimed that contrary to the last sentence, he had told Ali that he sustained an injury and wanted to see the doctor. However, Ali gave him some painkillers and advised him to see the doctor only if the pain continues after two or three days ²⁴ .

24 Similarly, when paragraph 8 of Wang’s AEIC was interpreted to the Claimant, the Claimant also only took issue with the last sentence ²⁵ . It was therefore put to the Claimant that he had agreed that he had fallen to his left and not facing up. The Claimant explained that he had not paid close attention to the fact that the paragraphs mentioned that he had fallen to his left which was why he made a mistake and did not highlight the error ²⁶ . I accepted the Claimant’s evidence and did not think that the failure to pick up and challenge this particular aspect of the AEICs of Ali and Wang discredited the Claimant’s evidence that he had fallen on his back on the day of the accident on 26 April 2022. In any event, Wang himself was unsure about the veracity of the four lines of paragraph 8 of his own AEIC which sets out what the Claimant told Ali, given his evidence that the Claimant was not even there when he and Ali were at the accident site ²⁷ . Ali also testified that his AEIC should be disregarded as he was given a short time to read his AEIC which was not translated to him and he had signed it without knowing fully the contents of his AEIC. In particular, he had affirmed the affidavit even when paragraph 8 stating that he had explained to the Claimant in Bengali on 12 May 2022 the purpose of the witness statement was not true as he was on home leave at that time ²⁸ .

25 In the circumstances, I accepted the Claimant’s evidence that he was tasked to bend rebars using a customized rebar bender and was carrying out the work when the rebar broke off and he fell on his back ²⁹ . I did not find this to be inconsistent with his evidence in his AEIC that he was flung 2 metres and hit the metal formwork. As illustrated in DBD 18, the Claimant could well be standing on metal formwork such that when he fell backwards, he hit the metal formwork. Just because he used different ways of describing how he fell does not mean that the evidence is inconsistent. The fact that he agreed that there was no photographic evidence of how the accident happened is not a concession that there was no metal formwork behind him at the worksite ³⁰ .

26 The Defendant took issue with the fact that the Claimant did not seek medical attention on 29 April 2022. The Defendant argued, based on Dr Tang’s evidence, that the Claimant would have been in pain within one to two days from the date of the fall and would have sought medical attention on 28 April 2022, at the latest. However, he only sought medical attention on 9 May 2022, nearly 2 weeks from the fall. It was therefore unlikely that the Claimant sustained a back injury during the accident on 26 April 2022. This was especially since the Claimant was not prevented from seeking medical attention, given that he visited SATA and TTSH on his own accord and the fact that the Defendant arranged for the Claimant to seek attention at The Good Clinic on 12 May 2022, the very day that he informed Eto that he experienced pain in his hand, leg and back due to injuries sustained during the accident.

27 I did not think that the fact that the Claimant only sought treatment on 9 May 2022 affected the credibility of his evidence that he suffered an injury to his back on 26 April 2022. The Claimant claimed that he had expressed the desire to see a doctor but Ali, his supervisor gave him some painkillers to manage the pain and advised him to see the doctor only if the pain continues after two to three days ³¹ . However, his supervisor went on leave after the accident ³² . His evidence that Ali had gone on leave after the accident was corroborated by Ali on the stand when he confirmed that he went for home leave two to three days later and was unaware of who had arranged for the Claimant to go to the SATA clinic ³³ .

28 Even if I were to accept Ali’s evidence that the Claimant did not immediately complain of any injuries other than the abrasion or cut on his left arm ³⁴ , this did not affect the Claimant’s credibility given that the Claimant had explained that he did not feel the injury as much and the pain only worsened after he went back to work ³⁵ . He had subsequently gone to the SATA clinic as advised by the safety supervisor and office administration ³⁶ . While the Defendant claimed that the Claimant had visited SATA on his own accord, the fact that the Claimant paid only $5.45 for his medical consultation, X-ray and medication on 9 May 2022, which price would have only been available under an insurance scheme subscribed by an employer of migrant workers ³⁷ , corroborated the Claimant’s evidence. This, and the fact that the Claimant was given 2 days medical leave from 9 to 10 May 2022 ³⁸ , suggested that the Defendant could not have been unaware of the Claimant’s complaints.

29 In my view, the time gap between the accident and the day the Claimant sought treatment did not constitute ground to discredit the Claimant, given that Dr Tang testified that the Claimant’s symptoms on 9 May 2022 were nevertheless consistent with a fall that happened on 26 April 2022 ³⁹ . The time gap between 26 April 2022 and the Claimant seeking medical attention only on 9 May 2022 therefore did not mean that a fall on 26 April 2022 ⁴⁰ and a longer and more gradual pain trajectory were improbable ⁴¹ . As set out earlier, Wang had stated in his statement on 21 June 2022 that the Claimant had fallen backwards, which made an injury to the Claimant’s back more probable than not. In any event, the Claimant had raised his back injury on 9 May 2022, in his complaint to Eto on 12 May 2022, in his Incident Statement Form allegedly made on 29 April 2022 but more likely to be sometime after 14 May 2022, in his WSH Incident Report submitted on 16 June 2022 by his solicitors, his pleaded case and at trial. While the Claimant had degenerative changes to his spine, both the medical report by Dr Sayampanathan ⁴² and Dr Tang’s evidence ⁴³ suggested that a fall could exacerbate the pain. As parties agreed at the start of trial that the trial will proceed only on the issue of responsibility of the accident ⁴⁴ , the nature and extent of the injuries caused by the accident were issues to be determined at the residual stage, if it arises.

30 For completeness, the Defendant also argued that because the Claimant was currently employed as a construction worker in Singapore, this was contrary to his evidence that he would have to take on a lower paying job of a light or sedentary nature in Bangladesh due to his injury ⁴⁵ . The Claimant tried to explain that he was currently working as a storekeeper instead of rebar work. Given that the trial was on a bifurcated basis with trial proceeding on responsibility for the accident first with the elements of causation and quantum reserved to the residual stage ⁴⁶ , whether the Claimant is able to adequately explain this would be an issue to be reserved to the residual stage, if it arises. For the purpose of the trial on responsibility, I did not put much weight on this in assessing the Claimant’s credibility, given that this would have to be re-visited at the residual stage, if it arises.

31 The Claimant gave evidence that he was tasked to bend rebars using a customized rebar bender and was carrying out the work when the rebar broke off ⁴⁷ or broke ⁴⁸ and he fell facing up and injured his back ⁴⁹ .

32 On the stand, both Wang and Ali gave evidence that the rebar had broken off, which differs from what they say in their AEICs. Wang had said in his affidavit ⁵⁰ that the Claimant had said that while using the rebar tool to push the bent rebar upwards, a small portion of the concrete precast wall at the base of the bent rebar broke off, causing him to lose balance and fall to his left. Wang also said that he had ascertained that a small part of the concrete at the base of the rebar had indeed broken off. However, on the stand, Wang testified that when he and Ali were at the accident site, they saw that the concrete was cracked and the rebar had broken off or fallen off ⁵¹ . Ali had stated in his affidavit ⁵² that the Claimant had told him that a small portion of the concrete precast wall had broken off, causing him to lose balance and fall to his left. However, on the stand, Ali testified that the Claimant had told him that while he was bending the rebar, the rebar came out from the concrete, which was why he lost balance and fell ⁵³ . Ali testified that he saw the dislodged rebar and confirmed that the Claimant told the truth ⁵⁴ . When the inconsistencies between their AEICs and oral evidence was put to them, Wang was unsure about the veracity of the four lines of paragraph 8 of his own AEIC ⁵⁵ . Ali also conceded that he had affirmed the affidavit even when paragraph 8 was not true ⁵⁶ , as he had gone on home leave a few days after the accident on 26 April 2022 ⁵⁷ .

33 In the circumstances, I accepted the Claimant’s evidence as well as the oral evidence of Ali and Wang that the rebar had broken off in that it had become dislodged from the wall and fell off.

34 However, the burden of proof is on the Claimant to prove that the Defendant had breached its duty of care to the Claimant. I note that the Claimant did not plead the doctrine of res ipsa loquitur and did not adduce any evidence in his AEIC in support of his pleaded case in respect of how the Defendant had breached its duty of care. The Claimant did not particularise what danger and risks it was that the Defendant failed to identify and eliminate. On the stand, the Claimant agreed that at the time of the accident, he was considered an experienced worker and would have had 7 years of experience in bending rebars using a rebar bender ⁵⁸ . He agreed that he was familiar with the process of doing so and did not require supervision as the job could be done by one person ⁵⁹ . As the Claimant conceded that he was an experienced worker and bending rebars could be performed by one person, the Claimant failed to show that the failure to supervise him adequately or provide him with assistance was a breach of duty. In fact, the Claimant conceded that he did not complain about the Defendant in his AEIC and agreed that it was because there is no wrongdoing on the part of the Defendant as regards the accident on 26 April 2022. His only issue was that the Defendant had failed to provide a platform for him to perform his task ⁶⁰ . He also raised the fact that he would need to raise his heel in pushing the rebar up such that if the rebar broke, he would lose his balance and fall backwards.

35  According to the Claimant, the rebar bender was in working order ⁶¹ . However, the Defendant should have provided the Claimant with a platform to do his work ⁶² , given that the works to be done were about 3 metres high ⁶³ . The rebar bender was not long enough to reach the top ⁶⁴ . Instead of the makeshift rebar bender, the Claimant claimed that an electric rebar bending machine could be used to straighten the rebar ⁶⁵ . A safer system of work would have been to build a platform, have a worker use a full body harness to work on the platform and use an electric rebar bending machine to straighten the rebar, with another worker, given that the machine is heavy ⁶⁶ .

36 As Eto testified, the rebar was approximately 2.2 metres from the floor level, as it was a HDB unit ⁶⁷ . Eto testified that using a hydraulic platform or jacking machine to allow the worker to work at a height of 2.2 metres would introduce the hazard of the platform tilting or collapsing to one side and he has not seen the use of hydraulic machines at such heights in the industry ⁶⁸ . He has also not seen an electronic rebar bender before ⁶⁹ . Machines that can be placed onto the rebar and tilt it to a horizontal length would introduce new hazards such as the worker having to reach the top of the rebar to place the machine and corresponding risks of the worker falling from heights. In addition, the machine was also quite heavy. Hence, it would be more reasonable and practicable to use a handheld tool from the ground level to tilt the rebar ⁷⁰ . Introducing a buddy system would not prevent workers from falling or the platform from falling ⁷¹ . Eto was of the view that the rebar bender tool was long enough and the Claimant did not have to tip-toe ⁷² .

37 I accepted the evidence of Eto that the rebar was at a height of 2.2 metres, given the basis of his estimation. I rejected the evidence of the Claimant that the rebar bender was not long enough to reach the top, given that it was contradicted by the photographic evidence ⁷³ . The Claimant did not adduce any evidence that the industry standard was to build a platform and deploy two workers to use an electric rebar bending machine for the Claimant’s task. I accepted Eto’s evidence that such a system of work would carry other risks which would not have made it a safer system of work. There was no evidence that the bending tool was inappropriate for performing the task or fell short of industry standards. As conceded by the Claimant, he accepted that the rebar bender was in working condition ⁷⁴ . In the circumstances, the Claimant had failed to prove that the Defendant had breached its duty of care to the Claimant in not providing him with a platform to do the work.

38 According to the Claimant, he would have to push the rebar upwards using the rebar bender to straighten it. The Claimant agreed that the most effective way of doing the job would be to place one leg in front of the other and use the lower body to heave the rebar upwards to straighten the rebar ⁷⁵ . However, the Claimant also explained that he may also need to raise his feet in pushing the rebar up such that if the rebar broke, he would lose his balance and fall backwards ⁷⁶ . As it was an accident, he was also unable to produce any photographic or video evidence of how the accident occurred ⁷⁷ . The Claimant acknowledged that the rebar bender was long enough to allow him to push the rebar upwards to straighten it with his feet firmly on the ground and there was no need to tiptoe and stretch to straighten the rebar which may cause him to fall backwards ⁷⁸ . However, he had lifted his heel approximately 10 centimetres off the ground and applied his energy to the rebar which was why he was not balanced ⁷⁹ .

39 While I accept that force would have to be applied when one is pushing the rebars using the handheld rebar bender to make them horizontal, the Claimant conceded that the rebar bender was long enough and there was no need to raise his heel to perform his task, which may cause him to lose his balance. Bearing in mind that he was an experienced worker performing a familiar task, how he chose to apply force to the rebars using the rebar bender and whether he chose to raise his heels in applying force to the rebars was something within his realm of control. There is no evidence that bending the rebars with the rebar bender was unsafe or could not be done in a safe manner.

40 The Claimant did not tender any evidence as to the industry practice in respect of the task of bending rebars overhead or advance any arguments as to how the Defendant’s system of bending rebars fell short of the standard of a reasonable employer using ordinary care and skill. The Claimant also did not tender any evidence or advance any argument as to why the rebar broke off or became dislodged and how that is attributed to fault on the part of the Defendant. Based on the incident/accident investigation & analysis report, bending the rebar sideways instead of straight down can cause the concrete to chip off resulting in the rebar dropping off. However, the Claimant did not address this or adduce any evidence as to the angle at which he had bent the rebar. The Claimant also did not plead the doctrine of res ipsa loquitur. In any event, the Claimant was in control of the concrete and rebar at the time of the accident. Bearing in mind that the burden of proof lies squarely on the Claimant, the failure to adduce any evidence in support of his case that the Defendant was in breach of its duty of care was fatal to his claim.

41 In arguing that the Defendant had not provided the Claimant with a safe system of working, the Claimant had referred to the case of Hao Wei (S) Pte Ltd v Rasan Selvan [2008] SGHC 148 (“Hao Wei”) and Parno v SC Marine Pte Ltd [1999] 3 SLR(R) 377 (“Parno”). In Hao Wei, the employer was found liable to its employee, (“Rasan”), as it had failed to provide him with a safe system of work and had not ensured that there was proper supervision of his work. There, Rasan was injured when operating a rebar bending machine in a factory on 26 June 2001, where he had been deployed to for just 5 days. Before being deployed to the factory on 21 June 2001, Rasan had only been asked to do gardening and construction work. The court was of the view that the employer should have ensured that Rasan was properly instructed as to what was expected of him at the factory and that he was adequately supervised. The facts can therefore be distinguished from those in the present case where the Claimant was an experienced worker who had 7 years of experience in bending rebars using a rebar bender and who was familiar with the process of doing so and did not require supervision.

42 In Parno, the appellant was injured by a descending starter while working on the platform in a piling tower on a barge. The Court of Appeal found that the system of work was unsafe because it did not provide for a warning to be given before the starter was brought down, there was faulty co-ordination between the riggers on the upper platforms of the piling tower, the coordinator stationed at the foot of the tower and the control room operators, there were inadequate instructions given to the appellant, there was inadequate supervision of the appellant and there was inadequate inspection and maintenance of the piling machinery. The facts were also distinguishable from those in the present case where the Claimant was performing a job which could be performed alone, he was experienced with bending rebars with a rebar bender and did not require supervision and there was no evidence that the rebar bender was defective.

43 In the circumstances, I find that the Claimant had failed to discharge his burden of proof in demonstrating that the Defendant had breached its duty of care. There is therefore no need to make findings on the other issues and the Claimant’s claim is dismissed.

44 The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days of this judgment.