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News Release from: Chartered Institute of Building [CIOB] | Subject: Prosecution over tunnel site deaths
Edited by the Buildingtalk Editorial
Team on 26 May 2005
Risk of prosecution over tunnel site
deaths
Singapore inquiry names three engineers at risk of prosecution over tunnel site deaths.
On the issue of liabilities arising from the deaths of three construction workers and a site inspector employed by the Land Transport Authority, the Committee of Inquiry on the Circle Line collapse was asked to determine questions of negligence, including criminal liability The report produces evidence on the basis of which Singapore's Public Prosecutor has been invited to inquire into probable contraventions of the law
This article was originally published on Buildingtalk on 12 Mar 2004 at 8.00am (UK)
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The first offence to be considered by the inquiry relates to Nishimatsu Construction Company (NCC) whose conduct on the evidence according to the committee contravened requirements of the Factories Act relating to safe means of access and safe place of employment.
The report points out that under this legislation, NCC was under a statutory duty to ensure that the worksite was of sound construction.
It cites a recent decision in the Court of Appeal that the obligation under this provision is absolute and continuing and is not discharged by showing that all reasonable care had been taken to comply with the provision.
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"In the present case", says the report, "there were two critical design errors in the temporary works - the presence of these critical design errors meant that the retaining wall system was severely under-designed".
"To adopt the words of the Court of Appeal, it was not 'so constructed as to withstand any stresses to which it would ordinarily be subject' ".
"The collapse of the temporary retaining wall system, which was a direct consequence of its under-design, provides further evidence of its unsound construction." The committee therefore found that NCC was in breach of its obligations to keep the place of work safe for any person working there.
Was NCC also in breach of its obligation to take all reasonably practical steps to make and keep the place of work safe? "There is substantive evidence", says the report, "which shows clearly that NCC had failed to take all reasonably practicable steps to make and keep the site safe".
"The committee notes that prior to the collapse, there were numerous warning signs flagging out concerns about the safety of the temporary works which would and should have alerted NCC to the need to review its design and to take the appropriate measures." Liability of company's officers.
Turning to the question of liability of officers of the company, the report cites Section 88 of Singapore's Factories Act which says that where an offence under the Act is proved to have been committed with the consent or connivance of an officer of the company, or to have been facilitated by any neglect on his part, then he as well as the company will be liable to prosecution.
At this point the report states: "It was submitted by the State that NCC's officers, namely, Shun Sugawara, Kazuo Shimada and Paul Broome are liable under Section 88 (13) of the Act for the offences committed by NCC in that their neglect facilitated the commission of offences by NCC".
The Committee of Inquiry names Shun Sugawara as the project director on Contract C824 and the most senior person in the design team at the point of tender and after the contract was awarded.
In determining whether he was liable for neglect, it asked whether a reasonably careful and competent project director in his position would have acted in the same way with the knowledge of the relevant circumstances at the material time".
""Having already had serious issues concerning the design of the temporary works drawn to his attention, it was incumbent on Sugawara to apprise himself more carefully on the state of the temporary works and institute actions to arrest the problems developing on site".
""Sugawara himself accepted that knowledge of any exceeding of design values for the inclinometers was important for safety.
He accepted that he had a responsibility for safety as a responsible and competent project director." Next to be named was Paul Broome, a professional engineer registered in Singapore who was employed by NCC as the project coordinator for C824".
"His status as an officer of the company within the meaning of the Factories Act was disputed by his counsel in the course of the inquiry, but the committee was satisfied that the nature of his responsibilities brought him within the Companies Act definition of an officer as "a person employed in an executive capacity"".
"Here the report draws attention again to the primary facts giving rise to the offences committed by NCC, errors in design of the temporary retaining wall system, the failure of NCC to do a complete design review and the lack of proper monitoring.
"What was PB's role in relation to these primary facts? The committee notes that apart from his role as the project coordinator, PB was also the temporary works PE/temporary works coordinator for C824.
Under clause 3.3 of the general specifications in the contract documents, 'the temporary works design calculations shall be prepared and endorsed by a professional engineer in civil discipline.
The contractor shall engage professional engineer (civil) to design and supervise the construction of temporary works in connection with the building construction and/or tunnel construction or marine works'.
"NCC engaged PB to undertake the responsibilities of the temporary works PE pursuant to these contractual obligations".
"Hence, PB would bear the responsibilities under clause 3.3 to design, supervise the construction, and to prepare and endorse design and temporary works calculations in respect of the temporary works." Neglect alleged in temporary works design Last to be named on the charge of neglect was Kazuo Shimada, NCC's design manager".
""As the person who headed the design of the temporary works, and as the person who took primary responsibility in the back analysis conducted by NCC, Shimada played a key role.
"Shimada's neglect", says the report, "shares many common features with PB's.
Both were integrally involved in the design process.
In committing the errors in the under-design of the strut-waler connections, particularly with respect to the ninth level of Type M3 [wall] Shimada had clearly been negligent in the performance of his duties as the design manager".
""The offence committed by NCC under S.33 (1)(a) of the Act was without a doubt facilitated by his neglect, making him liable pursuant to S.88 (13) of the Act for this offence as well." The report accepts that the second back analysis which Shimada had checked and approved had serious flaws in its input parameters".
"Nonetheless, "the back analysis has tremendous safety implications".
"It is inextricably linked to the continuance of work, as well as an accurate assessment and indication of the actual safety and stability of the works".
"In approving a back analysis which used as its basis unrealistic parameters, and not paying heed to the warning signs on site of the potential instability of the temporary works, Shimada had clearly been negligent in his duties".
"His neglect had facilitated the commission of the offence under S.33(3) of the Act by NCC." In assessing whether the two individuals with overall responsibility for the design of the temporary works, Paul Broome and Kazuo Shimada, had fallen short of the standard of care required by them, the committee considered three questions as formulated by the Privy Council in the Edward Wong case decided on appeal from Hong Kong (1984).
Did the practice followed by PB and Shimada involve a foreseeable risk? If so, could that risk be avoided? If so, were PB and Shimada negligent in failing to take avoiding action? "In the view of the committee, the answers to all three questions must surely be 'Yes'".
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