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].