Case Update: Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2017] SGCA 65 – Singapore Court of Appeal clarifies doctrine of res ipsa loquitur in a fire case

Significance: Singapore Court of Appeal clarifies doctrine of res ipsa loquitur in a fire case based on the tort of negligence.

Brief Facts

The appellant’s premises are situated next to the respondent’s. A fire broke out on the appellant’s premises, which spread to the respondent’s. There were several expert reports adduced at the trial which opined on the source of fire and the cause of fire. At trial, the appellant pleaded and argued that the fire had actually broken out from the respondent’s premises. It also disavowed the expert reports. On appeal, the appellant did a volte-face and relied on the expert reports to then argue that the trial judge should not have found that res ipsa loquitur applied.

Preliminary Issue on Appellant Changing Its Case

The appellant sought leave of court pursuant to O 57 r 9A(4)(b) of the Rules of Court to introduce the new points in the appeal, which contradicted its pleaded case. The Court of Appeal allowed it and distinguished the case of North Staffordshire Railway Company v Edge [1920] AC 254. It observed that the new arguments did not require amendment to the pleadings. The expert reports were already before the court so there’s no issue of adducing fresh evidence. And the trial judge had carefully considered the other possible causes of fire that were raised by the expert reports in relation to the application of res ipsa loquitur. Further, it remains the burden of the respondent to prove res ipsa loquitur such that the appellant can be found prima facie negligent: at [37].

Generally, when an application to introduce on appeal new points not taken in the court below under O 57 r 9A(4)(b) of the Rules of Court, the Court will consider the following factors (at [38]):-

  • (a) the nature of the parties’ arguments below;
  • (b) whether the court had considered and provided any findings and reasoning in relation to the new point;
  • (c) whether further submissions, evidence, or findings would have been necessitated had the new points been raised below; and
  • (d) any prejudice that might result to the counterparty in the appeal if leave were to be granted.

Discussion on Res Ipsa Loquitur

Res ipsa loquitur is a rule of evidence that enables a plaintiff to establish a prima facie case of negligence in the event that there is insufficient direct evidence to establish the cause of the accident in a situation where the accident would not have occurred in the ordinary course of things had proper care been exercised, ie, absent any negligence: at [39].

The 3 requirements for the application of res ipsa loquitur are identified in Scott v The London and St Katherine Docks Company (1865) 3 H & C 596 (“Scott”) followed in BNJ v SMRT Trains Ltd and another [2014] 2 SLR 7 (“BNJ”); see also Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd [2006] 3 SLR(R) 116 (“Tesa Tape”); and Teng Ah Kow and another v Ho Sek Chiu and others [1993] 3 SLR(R) 43 (“Teng Ah Kow”)):-

  • (a) the defendant must have been in control of the situation or thing which resulted in the accident (“the first requirement”);
  • (b) the accident would not have happened, in the ordinary course of things, if proper care had been taken (“the second requirement”); and
  • (c) the cause of the accident must be unknown (“the third requirement”).

Once the 3 requirements are satisfied, the evidential burden shifts to the defendant to rebut the prima facie case of negligence Teng Ah Kow at [22]).

Note however that the mere occurrence of a fire does not in itself give rise to the inference of negligence: [41].

After analysing several cases, the Court observed that the courts have generally declined to apply res ipsa loquitur in situations where there is simply no evidence of any act or omission (including any breach of statutory duty) by the defendant that could have caused the fire. In addressing the second requirement in Scott, the court must necessarily examine whether there was any act or omission on the part of the defendant that could have caused the fire. Absent that, the rule simply does not apply: at [47].

Generally, where the defendant has committed a negligent act or omission, the court is more likely to apply the rule where such negligent act or omission has created or increased the risk of the occurrence of fire. This would cause his negligence (as a cause of the fire) to shift into the “realm of probabilities” (Sisters of Charity of the Immaculate Conception v Robert J Fudge Ltd [1988] NBJ No 322 (“Sisters of Charity”)). In order to raise a prima facie inference of negligence, the plaintiff must “at the close of [its] case” and “[o]n the assumption that a submission of no case is then made”, show that on the evidence, in the ordinary course of things, the accident was “more likely than not” caused by the defendant’s negligence (Lloyde v West Midlands Gas Board [1971] 1 WLR 749): at [50].

Application to Facts

In this case, the appellant had been charged and convicted several times for breaches of the Fire Safety Act (“FSA”). The Court noted that this is particularly relevant to the court’s assessment of whether the second requirement of res ipsa loquitur is satisfied. The convictions presented the clearest objective evidence that the appellant had, by its conduct, increased the risk of fire on its premises. In examining whether the FSA convictions had any nexus to the increase in the risk of fire, it is relevant to consider whether the convictions concerned acts or omissions that occurred in the location where the fire started: at [52].

On the facts, the appellant was found to have allowed its foreign workers to cook on its premises. The area where cooking took place was in close proximity to the area where the fire started. At that time, there were 10 workers living in the premises. They were cooking past 11.15pm. This was a contravention of the FSA as the premises was not supposed to be living quarters. The Court found that the appellant’s conduct increased the risk of fire occurring and made it more probable that the fire would not have occurred if proper care had been taken by the appellant: at [53].

The Court noted that generally, the mere presence of some evidence indicating other possible causes of the fire has never been sufficient to preclude the application of res ipsa loquitur: at [61].

The Court drew a distinction between “non-negligent causes” and “neutral causes”. It noted that it is never a matter of raising possibilities in order to exclude the application of the rule. The court must be satisfied at the close of the plaintiff’s case that the explanation that rests on the negligence of the defendant is that which is more probable than not; and if the court is satisfied of that, the defendant can only overcome it by adducing evidence to show that there are other causes that are more probable. In order to displace the inference, it will not suffice for the defendant to establish a neutral event: at [64].

Once a prima facie inference of negligence arises, it is insufficient for the defendant, in its attempt to rebut the inference, to merely show that the accident was due to a neutral event. The defendant must go on to show either that (a) this neutral event does not connote negligence on its part (ie, the event was a non-negligent cause of the accident); or (b) it had exercised all reasonable care in relation to that event. In seeking to show a cause which does not connote negligence, the appellant must positively point to “its absence as more probable”: at [66].

In this case, the expert reports relied on by the appellant merely identified the possibility of other physical causes of the fire without expressing any view as to whether or not there was any negligence with regard to those causes, so they do not assist the appellant: at [70]. Further, the appellant also did not adduce sufficient evidence to show that it had exercised all reasonable care in relation to its electrical appliances and wirings: at [71].

On the third requirement in Scott, the presence of other “possible” causes does not per se mean that the third requirement of res ipsa loquitur is not satisfied: at [76].

On the facts of the case, the evidence available shows that the precise cause of the fire had not been established on the balance of probabilities: at [80].

The Court further emphasised that the the rule applies in cases where there is genuine difficulty with establishing the cause of the incident and not in cases where, merely by reason of the way the case was run, there was no evidence on the relevant issues before the court. The rule is a practical outworking of the burden of proof in cases where there are real difficulties in establishing what in fact happened, and not a means by which to overcome the shortcomings in the evidence arising only from the failure of the plaintiff to prove his case in the appropriate way: at [84].

Case Update: Ng Huat Seng v Munib Mohammad Madni [2017] SGCA 58 – Singapore Court of Appeal discusses non-delegable duty of care in negligence and ultra-hazardous acts

Significance

Singapore Court of Appeal discusses non-delegable duty of care and vicarious liability in the tort of negligence and in particular the doctrine of ultra-hazardous acts. It would appear from the Court’s comments that it is inclined to accept the ultra-hazardous acts doctrine as part of Singapore law provided it is established on the narrow ambit as held in the Biffa Waste case. That is, the doctrine of ultra-hazardous acts should be applied only to activities that were “exceptionally dangerous whatever precautions are taken”.

Brief facts

The respondents demolished and re-built their house. Some debris fell from respondents’ property on the boundary wall shared with the appellants’ house. The debris also ricocheted off the wall and broke some items on the appellants’ property. The appellants sued the respondents and the respondents’ builder, Esthetix. They pleaded that the demolition works on the respondents’ property was extra-hazardous, that the respondents were personally liable for failing to “exercise reasonable care to avoid or prevent the damage and loss”, that the respondents had failed to exercise reasonable care in appointing Esthetix as their contractor.  The respondents denied that the demolition works had been carried out under their “control, supervision and/or management”, and pleaded that Esthetix was an independent contractor, and that they have exercised reasonable care in selecting Esthetix.

The appellants failed in their claims in the District Court and on appeal in the High Court. The Court of Appeal (CA) dismissed their appeals.

Legal Principles

Vicarious Liability

Vicarious liability is a form of secondary liability. It has always been recognised that a prerequisite for the imposition of such liability is the existence of a special relationship between the defendant and the tortfeasor such as would make it fair, just and reasonable to impose liability on the defendant for the wrongful acts of the tortfeasor: at [41], [62]. Whatever might be the nature of that special relationship, its very antithesis is a relationship under which the tortfeasor is engaged by the defendant as an independent contractor: at [42], [64].

The CA considered the UK decisions of Various Claimants v Catholic Child Welfare Society and others [2012] 3 WLR 1319 (“the Christian Brothers case”) and Cox v Ministry of Justice [2016] 2 WLR 806 (“Cox”) to be fine-tuning of the orthodox legal principles on vicarious liability so as to accommodate the more diverse range of relationships which might be encountered in today’s context and not some major departure in terms of analytical framework: at [62]-[63].

In the Christian Brothers case, Lord Phlilips elaborated on the 2-stage inquiry in determining vicarious liability:-

  1. Was there a true employer-employee relationship between the defendant and the tortfeasor?
  2. Was the tortfeasor acting in the course of his employment when he committed the tortious act?

On the first stage, the relationship that gave rise to vicarious liability in the vast majority of cases was that between an employer and an employee under a contract of employment. In such a situation, the following would generally be true, and there would usually be no difficulty in finding it fair, just and reasonable to impose vicarious liability on the employer (the Christian Brothers case at [35]):

  • (a) the employer would be more likely than the employee to have the means to compensate the victim and could be expected to have insured itself against that liability;
  • (b) the tort would have been committed as a result of activity undertaken by the employee on behalf of the employer;
  • (c) the employee’s activity would likely be part of the business activity of the employer;
  • (d) the employer, by employing the employee to carry out the activity, would have created the risk of the tort being committed by the latter; and
  • (e) the employee would, to a greater or lesser degree, have been under the control of the employer at the time the tort was committed.

On the second stage of the inquiry, where the relationship between the defendant and the tortfeasor was akin to an employment relationship, the issue was whether there was a “close connection” between the tortious act and the tortfeasor’s relationship with the defendant.

These principles do not change the legal position that people who engage independent contractors are not subject to vicarious liability. On the facts of the case, Esthetix was an independent contractor. It had pursued the project for its own gain (at [69]): (a) Esthetix concluded contracts with consultants and subcontractors in its own name; (b) it hired its own employees and was solely responsible for their management and supervision; (c) it took out insurance in its own name; and (d) it maintained a separate account from the respondents and regularly received lump sum payments from the respondents which it retained as its own profits.

Negligent Selection of Contractor

Liability for negligent selection of contractor is a primary liability. The appellants tried to argue that the High Court Judge was wrong in considering the “turnkey” approach which the respondents adopted in engaging Esthetix as builder. The turnkey approach was that as the main contractor, it assumed carriage of the entire project and was contractually responsible to the respondents for both demolishing the existing house on the property as well as designing and building the new house. To that end, it was to engage such subcontractors and professional consultants and apply for such approvals as might be required. This differed from the “traditional approach”, under which the owner would engage a team of professional consultants to design the house and obtain the necessary approvals before calling for tenders and appointing a main contractor to undertake the construction of the house. In keeping with the arrangement in this case, Esthetix appointed professional consultants to provide it with the requisite architectural and engineering services for the project. See [4].

The CA did not think the Judge was wrong. The Judge did state expressly that the applicable standard was “that of a reasonable person in the circumstances of the defendant”. What the Judge then proceeded to do was to have regard to the particular circumstances of the present case, including the applicable industry practices, and then ascertain, on this basis, what a reasonable person in the respondents’ position would have done. Industry standards and common practice have long been viewed as important, although not necessarily conclusive, factors in ascertaining the appropriate standard of care. When receiving evidence of what is alleged to be a common and approved practice so as to assess the standard of care appropriate in a particular set of circumstances, the court should of course examine the practice against considerations of logic and common sense. It would be just as unwise to accept a common industry practice uncritically as it would be to simply ignore it: at [74].

On the facts of the case, Esthetix was licensed to carry out the works that it had been engaged to perform. In a regulated area of activity, the fact that a tortfeasor was statutorily qualified to carry out the very works that the defendant engaged him to do would generally afford a cogent basis for excluding a finding of negligence on the part of the defendant in selecting that person to do those works: at [76].

Non-Delegable Duty of Care and Ultra-Hazardous Acts Doctrine

The appellants sought to argue that the respondents bore a non-delegable duty to ensure that Esthetix took reasonable care in performing the demolition works which it had been engaged to carry out on their property. The CA rejected this.

The CA referred to its framework set out in the decision of Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd and another [2016] 4 SLR 521 (“Tiong Aik”).

In Tiong Aik, the CA had sought to rationalise the situations in which non-delegable duties of care could arise. Drawing on the principles laid down in Woodland v Swimming Teachers Association and others [2014] AC 537 (UKSC) (“Woodland”) as a starting point, the CA formulated the Tiong Aik framework, which was essentially a two-stage test for determining whether a non-delegable duty would arise on a given set of facts (at [58] and [62] of Tiong Aik).

At the first stage of this two-stage test, the claimant would have to satisfy the threshold requirement that:

(a) either his case fell within one of the established or recognised categories of non-delegable duties; or

(b) his case possessed all of the five defining features outlined by Lord Sumption JSC in Woodland at [23], namely:

(i) The claimant was a patient or a child, or, for some other reason, was especially vulnerable or dependent on the protection of the defendant to avoid the risk of injury. Prisoners and residents in care homes were also mentioned in Woodland as likely examples in this regard.

(ii) There was an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, which placed the claimant in the defendant’s actual custody, charge or care, and from which it was possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not merely a duty to refrain from conduct which would foreseeably harm or injure the claimant. In this regard, Lord Sumption JSC noted in Woodland that it was characteristic of such relationships that they involved an element of control by the defendant over the claimant, which would vary in intensity in different situations, but would “clearly [be] very substantial in the case of schoolchildren” (see Woodland at [23]).

(iii) The claimant had no control over how the defendant chose to perform the obligations arising from the positive duty which it had assumed towards the claimant, that is to say, whether personally or through employees or third parties.

(iv) The defendant had delegated to a third party some function that was an integral part of the positive duty which it had assumed towards the claimant; and at the time of the tortious conduct, the third party was exercising, for the purposes of the function thus delegated to him, the defendant’s custody, charge or care of the claimant and the element of control that went with it.

(v) The third party had 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.

At the second stage, the court would additionally take into account the fairness and reasonableness of imposing a non-delegable duty of care on the defendant in the particular circumstances of the case, as well as the relevant policy considerations in our local context (at [62] of Tiong Aik).

Ultra-hazardous Acts Doctrine

The CA noted some criticisms made by the High Court Judge of the ultra-hazardous acts doctrine. In particular, this doctrine appears to have been rejected in Australia: at [80]. However, the CA declined to come to a firm conclusion on the issue because on the facts, the doctrine would not be made out.

At [91], the CA referred to the Honeywill and Stein, Limited v Larkin Brothers (London’s Commercial Photographers), Limited [1934] 1 KB 191 (“Honeywill”) case and observed that in that case, it was considered an activity might be considered ultra-hazardous on account of its “inherently dangerous” nature even if, when proper precautions were taken, no harm was likely to follow. Honeywill was criticised significantly. So in the subsequent Court of Appeal case of Biffa Waste Services Ltd and another v Maschinenfabrik Ernst Hese GmbH and others [2009] 3 WLR 324 (“Biffa Waste”), the court tried to narrow the ambit of the doctrine. Stanley Burnton LJ stated therein that the doctrine of ultra-hazardous acts should be applied only to activities that were “exceptionally dangerous whatever precautions are taken” (at [78] of Biffa Waste). The CA found this approach “attractive”: at [94].

Some activities remain “exceptionally dangerous” even if precautions are taken, in that these activities pose a material risk of causing exceptionally serious harm to others even if they are carried out with reasonable care. Using explosives for a legitimate purpose is an example of such an activity; another might be the use of extremely hazardous chemicals for a legitimate purpose. Whether it is ultra-hazardous or exceptionally dangerous would have regard to: (a) the persistence of a material risk of exceptionally serious harm to others arising from the activity in question; (b) the potential extent of harm if the risk materialises; and (c) the limited ability to exclude this risk despite exercising reasonable care. See [95]. It is the persistence of such a risk despite the exercise of reasonable care which makes it fair, just and reasonable to hold the defendant liable for any negligence in the performance of the activity even if the negligent conduct was on the part of an independent contractor whom the defendant had engaged to carry out the activity: [96].

On the facts of the case, the CA found that the demolition works could not reasonably be said to be ultra-hazardous: [97].

(a) The appellants did not put forward anything to explain how the damage to their property ensued from a particular risk arising from the demolition works on the respondents’ property that remained substantial despite the exercise of reasonable care.

(b) Demolition works are routinely done and there is nothing to suggest that despite the exercise of reasonable care, there remains a material risk of exceptionally serious harm arising from such works.

(c) This analysis does not change even though landed properties in Singapore tend to be located in close proximity to one another. That simply establishes the element of factual proximity and the foreseeability of harm being caused if reasonable care is not taken when demolition works are carried out. It does not in any way shed light on whether such works are “exceptionally dangerous whatever precautions are taken” (per Burnton LJ in Biffa Waste at [78]), which was the central issue here.

In closing, the CA made some final remarks on the ultra-hazardous acts doctrine. The Court noted that the doctrine retains the responsibility and liability of the principal by imposing on it a separate duty to ensure that the party who is actually performing the activity does so with reasonable care. If the principal fulfils its duty (that is, if the principal takes reasonable care to ensure that the party performing the activity does so in a non-negligent manner and the latter does indeed perform the activity non-negligently) but some harm nonetheless ensues, there will be no liability on the basis of negligence on the part of the party performing the activity, nor will there be liability for breach of a non-delegable duty on the principal’s part. But if, due to the negligence of the party carrying out the activity, harm ensues, then that party will be liable in negligence; and in addition, the principal too will be liable, albeit on the basis of breach of its non-delegable duty rather than on the basis of negligence in performing that activity: at [107].

A claimant whose case comes within the ambit of this doctrine is in a position to make a principal answer for the negligent acts and/or omissions of another even if the latter is an independent contractor: at [108].

Comment

By the looks of the CA’s comments on ultra-hazardous acts doctrine, it does appear that the apex court is inclined to accept this doctrine as part of Singapore law provided it is established on the narrow ambit as held in the Biffa Waste case. That is, the doctrine of ultra-hazardous acts should be applied only to activities that were “exceptionally dangerous whatever precautions are taken”.

Case Update: ACB v Thomson Medical Pte Ltd and others [2017] SGCA 20 – Court of Appeal awards loss of genetic affinity claim for wrongful fertilisation (IVF mix up) case

Significance

The Singapore Court of Appeal awarded a loss of genetic affinity head of claim in a negligence tort suit for a case of wrongful fertilisation (IVF mix up). This is a novel unprecedented head of claim (possibly worldwide). Although the Court rejected the claim for upkeep costs of the child on public policy grounds, it decided to peg the loss of genetic affinity damages to a percentage of the upkeep costs. Summary of the decision here.

Continue reading “Case Update: ACB v Thomson Medical Pte Ltd and others [2017] SGCA 20 – Court of Appeal awards loss of genetic affinity claim for wrongful fertilisation (IVF mix up) case”

MCST Plan No 3322 v Tiong Aik Construction Pte Ltd – SGCA holds no non-delegable duties on construction professionals

MCST Plan No 3322 v Tiong Aik Construction Pte Ltd [2016] 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 [2016] 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 [58] above.

In this case, RSP Architects and Tiong Aik Construction were sued by The Seaview’s MCST.
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Case Update: Nava Bharat (Singapore) Pte Ltd v Straits Law Practice LLC and another and another appeal [2016] SGCA 12 – SGCA dismisses negligence claim against lawyer re advice on cross-border transaction

Significance: Singapore Court of Appeal held that the plaintiff’s solicitors had not been negligent in advising on the legal implications of the plaintiff proceeding with the cross-border transaction to acquire an interest in an Indonesian coal mine based on an oral undertaking given by a 3rd party to obtain a forestry licence.

Continue reading “Case Update: Nava Bharat (Singapore) Pte Ltd v Straits Law Practice LLC and another and another appeal [2016] SGCA 12 – SGCA dismisses negligence claim against lawyer re advice on cross-border transaction”