MCST Plan No 3322 v Tiong Aik Construction Pte Ltd  SGCA 40
Significance: Singapore Court of Appeal held that the architect and builder / main contractor is not subject to a non-delegable duty in tort to ensure that the building and design of a building was carried out without negligence on the part of any of their sub-contractors: MCST Plan No 3322 v Tiong Aik Construction Pte Ltd  SGCA 40. The Court also held that moving forward, to demonstrate that a non-delegable duty arises on a particular set of facts, a claimant must minimally be able to satisfy the court either that: (a) the facts fall within one of the established categories of non-delegable duties; or (b) the facts possess all the features described at  above.
In this case, RSP Architects and Tiong Aik Construction were sued by The Seaview’s MCST.
Non-Delegable Duties in Tort
The Court analysed the nature of non-delegable duties in tort. Tortious liability is generally circumscribed by the “fundamental fault-based principle in the law of torts that liability lies with the party that has engaged in the tortious acts in question”: at . Citing Lord Sumption in Woodland v Swimming Teachers Association and others  AC 537 (UKSC) at : “Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do.” The reason for this is that the nature of the duty imposed by common law is merely to do what you are required to do with reasonable care.
One implication of this is that if the performance of a particular task is delegated to another party, the party who was originally responsible for the performance of that task (under, for example, contract) would, ordinarily, not be subject to any tortious liability for the negligent performance of that task (since he did not personally perform the task): at .
Vicarious liability stands, in a sense, as a derogation from this principle, or as a “true exception” to this, in the words of Lord Sumption JSC in Woodland at . It permits the imputation of secondary tortious liability on an employer on the basis of its employee’s primary tortious liability: at .
The employer is liable not because of its own negligence, but because of its employee’s negligence. The principles of vicarious liability, however, do not extend to imposing liability on employers for the negligence of their independent contractors: at .
A separate legal basis for such a cause of action may, however, exist in the doctrine of non-delegable duties. The liability incurred upon a breach of a non-delegable duty is not vicarious (The “Lotus M”  1 SLR(R) 409 (“The Lotus M”) at ). Non-delegable duties are personal duties, the delegation of which will not enable the duty-bearer to escape tortious liability because the legal responsibility for the proper performance of the duty resides, in law, in the duty-bearer (Woodland at ): at .
Lord Sumption JSC described a non-delegable duty as a duty which “extends beyond being careful, to procuring the careful performance of work delegated to others” (Woodland at ). In this regard, the duty may be said to be “analogous to that assumed by a person who contracts to do work carefully” (Woodland at ): at . However, the concept of non-delegable duties does not per se import a higher or absolute standard of care: at .
Non-Delegable Duties in Tort under Statute
A statute can give rise to non-delegable duties in tort. Whether a particular statute does so is a question of construction: at . Where they do arise, the non-delegable duties in tort would be identical in content to the statutory duties imposed by the Act: at .
Sections 9 and 11 of the Building Control Act (“BCA”) are the only provisions which expressly stipulated the duties of architects and builders: at .
The duties of an architect are found primarily in s 9(1) of the BCA:
9.—(1) Every qualified person who is appointed under section 8 or 11 to prepare the plans of any building works shall —
(a) take all reasonable steps and exercise due diligence to ensure that the building works are designed in accordance with—
(i) the provisions of this Act; and
(ii) subject to section 6A, the requirements prescribed in the building regulations;
(b) notify the Commissioner of Building Control of any contravention of this Act or the building regulations in relation to those building works of which the qualified person knows or ought reasonably to know; and
(c) supply a copy of every plan of the building works approved by the Commissioner of Building Control to —
(i) the site supervisor or the team of site supervisors, as the case may be, appointed under section 10;
(ii) the builder of those building works; and
(iii) the qualified person appointed under section 8 or 11 to supervise those building works.
Section 9(2) also concerns the duties of an architect, but it merely details the scope of the duty under section 9(1)(a). Section 9(5) also imposes on the architect a duty to notify the authorities and the builder if he becomes unwilling or unable to prepare the plans of any building works. Apart from the duty to keep the authorities and the other parties to the building works sufficiently informed about the plan of the building works, the architect’s duties are centred on ensuring that the building works are designed in accordance with the BCA and the relevant building regulations: at .
The duties of a builder are found primarily in s 11(1) of the BCA:
11.—(1) A builder undertaking any building works shall —
(a) ensure that the building works are carried out in accordance with —
(i) the provisions of this Act;
(ii) subject to section 6A, the building regulations;
(iii) the relevant plans approved by the Commissioner of Building Control and supplied to him by a qualified person under section 9(1)(c); and
(iv) any terms and conditions imposed by the Commissioner of Building Control in accordance with the provisions of this Act and, subject to section 6A, the building regulations;
(b) notify the Commissioner of Building Control of any contravention of this Act or the building regulations relating to those building works of which the builder knows or ought reasonably to know;
(c) keep at the premises on which the building works are carried out, and make available on request (at a reasonable time) by any specialist builder appointed in respect of specialist building works comprised in those same building works, all plans of those building works approved by the Commissioner of Building Control and supplied to him by a qualified person under section 9(1)(c);
(d) where no such qualified person has been appointed by the developer in respect of those building works, appoint —
(i) an appropriate qualified person to prepare the plans of the building works;
(ii) an appropriate qualified person to supervise the carrying out of those building works; and
(iii) where the building works comprise wholly or partly of any geotechnical building works —
(A) a geotechnical engineer (who may or may not be the same person referred to in sub-paragraph
(i)) to prepare the plans relating to the geotechnical aspects of the geotechnical building works; and
(B) a geotechnical engineer (who may or may not be the same person referred to in sub-paragraph (ii)) to supervise the geotechnical aspects of the geotechnical building works;
(e) have an adequate number of construction supervisors working under his direction to assist the builder to ensure that paragraph (a) is complied with;
(f) within 7 days of the completion of the building works, certify that the new building has been erected or the building works have been carried out in accordance with the provisions of this Act and, subject to section 6A, the building regulations and deliver that certificate to the Commissioner of Building Control;
(g) notify the Commissioner of Building Control of the appointment and termination of appointment of any specialist builder appointed by the builder in respect of specialist building works comprised in those same building works; and
(h) comply with such other duties as may be prescribed in the building regulations.
Non-Delegable Duties in the Common Law
The “well-settled instances” in which nondelegable duties were thought to arise include employee safety (see Chandran a/l Subbiah v Dockers Marine Pte Ltd  1 SLR 786 at , :- “17 A distinctive feature of an employer’s duty of care to his employees for their safety is that it is personal and therefore non-delegable. This means that the employer cannot escape liability simply by baldly asserting that another party was negligent and responsible for the employee’s injury. … 19 This much can now be emphatically stated. An employer cannot wash his hands off all responsibility for the safety of his employees simply because the employees are sent to work at a site controlled by others. The law continues to place on an employer an obligation to take reasonable care for its employees’ safety. …”): at -.
Other categories include:
(a) hospitals and health authorities owing non-delegable duties to patients (see Hii Chii Kok v Ooi Peng Jin London Lucien and another  2 SLR 544 (“Hii Chii Kok”); at [47(a)]);
(b) Schools and school authorities have been found to owe nondelegable duties to their students;
(c) extra-hazardous operations (see Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd  1 KB 191 at 197): .
The element thought to be common across the categories of non-delegable duties is that the duty bearer has undertaken or assumed responsibility to the claimant in circumstances where the relationship involves a kind of “special dependence” or “particular vulnerability: at .
The Court adopted Lord Sumption JSC’s detailed exegesis of the defining features of cases in which a majority of the nondelegable duties arise (see [57(b)] and ) as a good starting point for the development of the law on non-delegable duties in Singapore: .
Lord Sumption JSC observed that there were “two broad categories of case[s] in which such a duty has been held to arise” (Woodland at ):
(a) The first is where “the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work” (Woodland at ).
(b) The second concerns cases with three critical characteristics (Woodland at ):-
First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant.
Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury.
Third, the duty is by virtue of that relationship personal to the defendant.
Lord Sumption JSC identified five defining features of such cases (Woodland at ):
(a) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(b) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(c) The claimant has no control over how the defendant chooses to perform those obligations, ie whether personally or through employees or through third parties.
(d) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(e) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.
Moving forward, to demonstrate that a non-delegable duty arises on a particular set of facts, a claimant must minimally be able to satisfy the court either that: (a) the facts fall within one of the established categories of non-delegable duties; or (b) the facts possess all the features described at .
However, (a) and (b) above merely lay down threshold requirements for satisfying the court that a nondelegable duty exists – the court will additionally have to take into account the fairness and reasonableness of imposing a non-delegable duty in the particular circumstance, as well as the relevant policy considerations in our local context: .
Whether construction professionals are subject to non-delegable duties?
There are no compelling reasons to restrict a priori the categories of non-delegable duties to only cases concerning personal injury: at . The existing authorities do not restrict non-delegable duties to only cases concerning personal injury: at . The non-delegable nature of a duty has nothing to do with the content of the duty, ie, the level of care required by the duty, but relates instead to whether the duty, whatever it may be, can be completely discharged by a reasonable delegation of the task to a third party. This in turn depends generally on the nature of the relationship between the parties and what the duty bearer has undertaken to do: at . There should not be an absolute bar to the creation of nondelegable duties in respect of pure economic loss. In RSP Architects Planners & Engineers v Ocean Front Pte Ltd and another appeal  3 SLR(R) 653 (“Ocean Front”) at ,  and , this court recognised that even if the only loss arising from the negligent construction of a building was pure economic loss, such loss was nevertheless recoverable.
The Court held that the degree of proximity and assumption of responsibility by an architect and builder/main contractor to a developer and an MCST, although sufficient for establishing an ordinary tortious duty of care, was sufficient for establishing a non-delegable duty of care: .
First, and most importantly, the MCST was in no sense ever in the “custody, care and charge” of the architect and builder: . Second, the MCST was not especially vulnerable or dependent on the protection of the the architect and builder against the risk of injury: . Even the developer itself might not be able to defeat the defence of independent contractor if the claim of the developer against the architect and builder were entirely in tort. The developer was certainly not in the “custody, care and charge” of the architect and builder: .