Tort Law Guide to Negligence

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TORT LAW & THE

LAW OF
NEGLIGENCE
WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD

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INDEX
Chapter Description Page
1 Introduction & Duty of Care 3
2 Duty Of Care: Special Situations 21
3 Breach Of Duty 39
4 Causation & Remoteness Of Damage 50
5 Defences To Negligence 74
6 Economic Torts I 85
7 Economic Torts II 95
8 Occupier’s Liability 109
9 Vicarious Liability 133
10 Tresspass to Land & Nuisance 155

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CHAPTER 1
INTRODUCTION & DUTY OF CARE
SECTION 1 INTRODUCTION
1.1 In the more than eighty years since its inception as a distinct cause of
action in Donoghue v Stevenson [1932] AC 562 (Donoghue), negligence has
developed to become the pre-eminent tort, eclipsing older actions such as
trespass, nuisance and breach of statutory duty.
Donoghue v Stevenson [1932] AC 562
Donoghue v. Stevenson, also known as the ‘snail in the bottle case’, is a

significant case in Western law. The House of Lords’ ruling in this case
established the civil law tort of negligence and obliged manufacturers to observe
a duty of care towards their customers. The events of the case took place in
Paisley, Scotland in 1928. While attending a store, Ms May Donoghue was given
a bottle of ginger beer, which had purchased for her by a friend. The bottle was
later discovered to contain a decomposing snail. Since the bottle was not made
of clear glass, Donoghue had consumed most of its contents before she became
aware of the snail. She later fell ill and a physician diagnosed her with
gastroenteritis. Donoghue subsequently took legal action against Mr David
Stevenson, the manufacturer of the ginger beer. She lodged a writ in the Court of
Sessions, Scotland’s highest civil court, seeking £500 damages.
Donoghue could not sue Stevenson for breach of contract, because a friend had
purchased the drink for her. Instead, her lawyers claimed that Stevenson had
breached a duty of care to his consumers and had caused injury through
negligence – an area of civil law which at the time was largely untested.

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Stevenson’s lawyers challenged Donoghue’s action, on the basis that no

precedents existed for such a claim. They referred to an earlier action by
Donoghue’s lawyer, Mullen v. AG Barr, where a dead mouse was found in a
bottle of soft drink; judges in this case dismissed it because of a lack of
precedent. Donoghue’s initial action failed, however she was granted leave to
appeal to the House of Lords, which at the time still had the judicial authority to
hear appellate cases. The leading judgement, delivered by Lord Atkin in 1932,
established that Stevenson should be responsible for the well-being of individuals
who consume his products, given that they could not be inspected. The case was
returned to the original court; Stevenson died before the case was finalised and
Donoghue was awarded a reduced amount of damages from his estate.
The outcomes of Donoghue v. Stevenson established several legal principles

and precedents:
(1) Negligence. Firstly, the House of Lords ruling affirmed that negligence is a
tort. A plaintiff can take civil action against a respondent, if the respondent’s
negligence causes the plaintiff injury or loss of property. Previously the plaintiff
had to demonstrate some contractual arrangement for negligence to be proven,
such as the sale of an item or an agreement to provide a service. Since
Donoghue had not purchased the drink, she could prove no contractual
arrangement with Stevenson – yet Lord Atkin’s judgement established that
Stevenson was still responsible for the integrity of his product.
(2) Duty of care. Secondly, the case established that manufacturers have a duty
of care to the end consumers or users of their products. According to Lord Atkin’s
ratio decendi, “a manufacturer of products, which he sells… to reach the ultimate
consumer in the form in which they left him… owes a duty to the consumer to
take reasonable care”. This precedent has evolved and now forms the basis of
laws that protect consumers from contaminated or faulty goods. These
protections began as common law but many have since been codified in
legislation, such as the Trade Practices Act (Commonwealth, 1974).

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(3) Neighbour principle. Thirdly, the Donoghue v. Stevenson case produced

Lord Atkin’s controversial ‘neighbour principle’, which extended the tort of
negligence beyond the tortfeasor and the immediate party. It raised the question
of exactly which people might be affected by negligent actions. In Donoghue’s
case she had not purchased the ginger beer but had received it as a gift; she
was a neighbour rather than a party to the contract. Atkin said of this principle:
“You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law, is
my neighbour? The answer seems to be persons who are so closely and directly
affected by my act that I ought to have them in [mind] when I am [considering
these] acts or omissions.”
1.2 The law of negligence in Singapore is based largely on English law,

although there are areas in which the Singapore courts have chosen to depart
from the principles espoused by the UK courts. While the law referred to here
will, wherever possible, be that applied by the courts in Singapore (and
occasionally Malaysia), reference will also be made to the jurisprudence of other
jurisdictions – notably the UK and Australia – which have influenced, or are
influencing, the development of the law of negligence in Singapore.
A. Requirements of a tort: claimant must have suffered recoverable

damage arising from a breach of legal duty owed by defendant
1.3 Negligence as a tort requires more than mere lack of care. A claimant who
wishes to sue in negligence must show:
 that the defendant owed him a legal duty to take care;
 that there was a breach of this legal duty by the defendant; and
 that the breach caused him recoverable damage.

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SECTION 2 DUTY OF CARE: TESTS FOR ESTABLISHING DUTY
A. Duty of care
(1) Duty distinguishes situations in which a claim may be entertained from those
where no action is possible
1.4 Duty is an artificial conceptual barrier which the claimant must overcome
before his action can even be considered. Its role is to keep the tort of negligence
within manageable proportions by distinguishing situations in which a claim may,
in principle, be entertained from those in which no action is possible.
(2) Factors influencing the existence of a duty
1.5 The question of whether or not a duty exists is influenced by a number of

factors, such as:
 the type of claimant (eg, socially sympathetic claimants such as rescuers
are generally owed a duty of care in a wider range of situations than are
less sympathetic ones such as trespassers);
 the type of defendant (eg, defendants with public functions owe a duty of
care in more limited circumstances than do individual defendants);
 the nature of the damage caused (eg, a defendant almost always owes a
duty of care not to cause physical damage to person or property through
his negligent act, but the duty owed with respect to psychiatric harm and
pure economic loss is more restricted); and
 the nature of the conduct (eg, active conduct is more likely to give rise to a
duty of care on the part of a defendant than is a mere omission).

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Donoghue v Stevenson – The Neighbour Principle
1.6 In Donoghue Lord Atkin laid down the foundation for the duty of care.
Under his ‘neighbour principle,’ a defendant must avoid acts or omissions which
will foreseeably harm persons who are so closely and directly affected by his acts
or omissions that he ought to have them in mind as being so affected. The
neighbour principle remains the backbone of duty, but in the ensuing years the
courts have developed more complex tests. These tests, while generally built
around the key element of foreseeability, have attempted to reflect more
accurately some of the other factors inherent in establishing duty.
The Anns Two-stage Test
(1) Two stages: proximity based on foreseeability of harm and considering of

policy factors
1.7 In Anns v Merton London Borough Council [1978] AC 728 (Anns), Lord
Wilberforce concluded that duty effectively comprised two stages. The first stage,
derived from the neighbour principle, was a relationship of proximity or
neighbourhood based on foreseeability of harm. The second was the
consideration of policy factors which might negative, reduce or limit the scope of
the duty, or the class of persons to whom it was owed, or the damages to which it
might give rise.

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Anns v Merton London Borough Council [1978] A.C. 728
In 1962 the local council of Merton approved building plans for the erection of a block
of maisonettes. The approved plans showed the base wall and
concrete foundations of the block to be ‘three feet or deeper to the approval of local
authority [being Merton]’. The notice of approval said that the bylaws of the council
required that notice should be given to the council both at the commencement of the
work and when the foundations were ready to be covered by the rest of the building
work. The council had the power to inspect the foundations and require any
corrections necessary to bring the work into conformity with the bylaws, but was not
under an obligation to do so.
The block of maisonettes was finished in 1962. The builder (who was also the
owner) granted 999 year leases for the maisonettes, the last conveyance taking
place in 1965. In 1970 structural movements occurred resulting in failure of the
building comprising cracks in the wall, sloping of the floors and other defects. In 1972
the plaintiffs who were lessees of the maisonettes issued writs against the builder
and the council.
The plaintiffs claimed that the damage was a consequence of the block having been
built on inadequate foundations, there being a depth of two feet six inches only as
against the three feet or deeper shown on the plans and required under the bylaws.
The plaintiffs claimed damages in negligence against the council for approving the
foundations and/or in failing to inspect the foundations.
At the hearing at first instance the plaintiffs' case failed on the basis that it was
statute barred as the cause of action arose on the first sale of a maisonette by the
owner, more than six years before an action was commenced. The Court of
Appeal allowed the appeals on the basis that the cause of action arose when the
damage was discovered or ought to have been discovered.
The Court found in favour of the tenants.

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Legal reasoning
The Appeal was raised on two points:
(1) Whether the local council were under any duty of care toward owners or
occupiers of houses as regards inspection during the building process; and
(2) What period of limitation applied to claims by such owners or occupiers against
the local council
The House of Lords unanimously decided that a duty of care did exist and that such
a duty was not barred by a "limitation of actions" statute.
The leading judgment was delivered by Lord Wilberforce with whom all fellow Judges
concurred. Lord Salmon delivered a speech within which he agreed in substance
with Lord Wilberforce but contained a separate analysis of, in particular, the issue of
duty of care.
Lord Wilberforce accepted what might be seen as the high point of the adoption of
the statements of Lord Atkin in Donoghue v Stevenson, the "neighbour principle". He
says: -
‘Through the trilogy of cases in this House, Donoghue v Stevenson, Hedley Byrne &
Co Ltd v Heller & Partners Ltd and Home Office v Dorset Yacht Co Ltd, the position
has now been reached that in order to establish that a duty of care arises in a
particular situation, it is not necessary to bring the facts of that situation within those
of previous situations in which a duty of care has been held to exist. Rather the
question has to be approached in two stages. First one has to ask whether, as
between the alleged wrongdoer and the person who has suffered damage there is a
sufficient relationship of proximity or neighbourhood such that, in the reasonable
contemplation of the former, carelessness on his part may be likely to cause damage
to the latter, in which case a prima facie duty of care arises. Secondly, if the first
question is answered affirmatively, it is necessary to consider whether there are any
considerations which ought to negative, or to reduce or limit the scope of the duty or
the class of person to whom it is owed or the damages to which a breach of it may
give rise’.

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Hedley Byrne v Heller was held as an example of a case in which there was a
reduction in the scope of the duty of care.
The 'Anns Test' established here by Lord Wilberforce is a two-stage test.

(1) It requires first a ‘sufficient relationship of proximity based upon foreseeability’;
(2) Secondly considerations of reasons why there should not be a duty of care.
Applying that general statement and approach, Lord Wilberforce considered the
particular position of the council as the administrator of the Public Health Act 1936
and its bylaws as to building made by the council under that Act. Lord Wilberforce
summarised the position as being one where the council was administering an act-
enabling local council, through building bylaws to supervise and control the
operations of builders, particularly the supervision of the foundations of buildings
because the foundation is covered up as the building proceeds. This is specifically
recognised by a particular bylaw which required that the foundation of every building
should be taken down to such a depth or be so designed and constructed as to
safeguard the building against damage by swelling or shrinkage of the subsoil. Lord
Wilberforce noted that the builder was required to notify the local authority before
covering up the foundations so that the local authority had the right to inspect and to
insist on correction.
As Lord Wilberforce notes, the issue with respect to the council is that it is
discharging powers and duties as a matter of public and not private law. However,
Lord Wilberforce notes that there is no doubt that private law duties arise over and
above or alongside the public law functions.
Lord Wilberforce notes that almost every exercise of statutory power must inherently
adversely affect the interests of private citizens but in many cases the powers can be
carried out properly and without causing harm to parties likely to be affected.
The court needs to give consideration to the balance between efficiency and thrift;
the local council was under no duty to inspect but they are under a duty to give
proper consideration whether they should inspect or not, further that if the council

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does inspect, it must carry out that inspection exercising reasonable care. Lord
Wilberforce had to consider a decision of the House of Lords in East Suffolk River
Catchment Board v. Kent where it was argued a Statutory Authority failed in
reasonable time to repair the breach of a drainage bank and damage was sustained
by the plaintiffs land as a result. Lord Wilberforce says that case was decided on the
basis of a different statute, subject to a different range of considerations but that it
might be said that there was no real consideration of a general duty of care and that
the content of any duty of care against the background of considerable flooding and
other activity being undertaken by the defendant argued for a lower standard of care.
If not the absence of a duty of care.
Lord Wilberforce had no difficulty saying that on that basis the duty of care existed
was affirmed and was owed to the owners and occupiers of the houses. The owners
or occupiers are not an endless indeterminate class of potential plaintiffs.
The nature of the duty of care must be closely related to the consideration of the
statutory powers granted to the council and the exercise of due care in those
powers.
Lord Wilberforce dismissed the limitation of actions issues quite quickly and held that
a claim was not statute barred.
(2) Difficulties arising from the two-stage test
1.8 The two-stage test led to expansionary decisions. This was partly because
the notion of duty based on foreseeability without overt consideration of
precedents at the first stage was inherently suited to developing, rather than
restricting, the law. But it was also due to the fact that many judges were
uncomfortable with the open articulation of policy, which led to the second stage
of the test being under-used.

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The Caparo Three-part Test
(1) Three stages: foreseeability, proximity and for imposing a duty to be fair, just
and reasonable in the circumstances
1.9 Fear that the Anns test would lead to exponential development of the duty
of care led the courts to favour an alternative test. This test, first developed by
Deane J. in the High Court of Australia, initially consisted of foreseeability and
proximity. To these elements, the requirement that it must be fair, just and
reasonable in the circumstances to impose a duty of care was added in the case
of Caparo Industries plc v Dickman [1990] 2 AC 605 (Caparo; see Section
2.9 below). The introduction of the three-part test reflected a more conservative
approach to duty, and it coincided with a return to incremental development, also
spearheaded by the Australian High Court (see, eg, Sutherland Shire Council v
Heyman (1985) 60 ALR 1).
Caparo Industries Plc V Dickman [1990] 2 AC 605
Facts: Shareholders in a company bought more share and then made a

successful take-over bid for the company after studying the audited accounts
prepared by the defendants. They later regretted the move and sued the
auditors, claiming that they had relied on accounts which had shown a sizeable
surplus rather than the deficit that was in fact the case. Thier case failed.
Key Law (ratio decidendi) The House of Lords held that the auditors owed no
duty of care to the claimants since company accounts are not prepared for the
purposes of people taking over a company and cannot then be relied on by them
for such purposes. The court also developed the three-stage test for determing
when a duty of care is owed:

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(1) Firstly, it should be considered whether the consequences of the defendant’s

behaviour were reasonably foreseeable;
(2) Secondly, the court should consider whether there is sufficient legal proximity
between the parties for a duty to be imposed;
(3) Lastly, the court should ask whether or not it is fair, just and reasonable in all
the circumstances to impose a duty of care.
(2) Difficulties arising from the three-part test
1.10 The three-part test remains – at least in theory – applicable in the UK, but
it has been abandoned in Australia (see Sullivan v Moody [2001] HCA 59; (2001)
207 CLR 562), which now favours a ‘salient features’ approach to the
determination of duty, due in large part to concern about the unsatisfactory
nature of the proximity requirement. Although introduced as a tool for filtering out
claims which lack the requisite closeness, proximity has always been a
notoriously vague concept and its role has been undermined by its nebulous and
indefinable nature.
Canada has adopted a modified version of the Anns test, incorporating aspects
of the Caparo test (see Cooper v Hobart [2001] SCJ No 76; [2001] 3 SCR 537).
At the first stage, there must be reasonable foreseeability of harm and sufficient
proximity between the parties for it to be fair and just to impose a duty of care. At
the second stage, the court examines whether there are residual public policy
considerations to justify denying liability.
1.11 In recent years, the courts have moved away from the somewhat
reactionary approach which marked their response to Anns. As a result, even in
jurisdictions where Caparo still applies, negligence has been allowed more scope
for development, although still in a largely incremental manner.

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APPROACH IN SINGAPORE: THE SPANDECK TEST
(1) Establishing duty in Singapore prior to the Spandeck test
1.12 In the pure economic loss case of RSP Architects, Planners &
Engineers v Ocean Front Pte Ltd [1995] 3 SLR (R) 653 (Ocean Front;
see Section 2.12 below), the Court of Appeal, while not specifically espousing
Lord Wilberforce’s broad proposition, used a two-stage process to determine
duty. Their Honours also applied Junior Books v Veitchi Co Ltd [1983] 1 AC
520 (Junior Books), a rarely followed decision of the House of Lords, under which
the Anns two-stage test had been applied to allow recovery in tort for pure
economic loss arising from a defective chattel in near-contractual circumstances.
However, the Court in Ocean Front ultimately based its decision on the notion of
proximity, and indicated that there was no single rule or set of rules for
determining whether a duty of care should be held to exist in a particular
circumstance.
In the subsequent case of RSP Architects, Planners & Engineers v

Management Corporation Strata Title Plan No 1075 and another [1999] 2
SLR(R) 134 (Eastern Lagoon) the Court of Appeal notionally rejected the Anns
test, while adopting a substantively similar two-stage ‘process.’
1.13 In PT Bumi Tankers v Man B&W Diesel SE Asia Ltd [2003] 3 SLR (R)
239; [2003] SGHC 152, Judith Prakash J in the High Court also favoured a two-
stage approach to economic loss – an approach which appeared to survive the
Court of Appeal's reversal of her judgement on the question of whether a duty
existed on the facts: Man B&W Diesel S E Asia Pte Ltd & anor v PT Bumi
International Tankers & anor [2004] 2 SLR (R) 300; [2004] SGCA 8 (P T Bumi;
see Section 2.3.13 below). In reaching its decision, in PT Bumi, the Court of
Appeal recognised that the Anns test had been qualified and that Junior Books
had been the subject of considerable controversy.

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1.14 Shortly thereafter, in The Owners of the Sunrise Crane v Cipta Marine
Pte Ltd [2004] 4 SLR (R) 715; [2004] SGCA 42, the majority of the Court of
Appeal held that the two-stage approach to duty, which had been favoured
in Ocean Front and developed in PT Bumi, applied only to pure economic loss
cases, and that in situations where physical damage was involved
the Caparo three-part test remained applicable (see, eg, the decision of the Court
of Appeal in TV Media Pte Ltd v Andrea De Cruz [2004] 3 SLR (R) 543
(Andrea De Cruz ; see Sections 2.18 and 4.13 below), where duty was based on
the requirements of foreseeability, proximity and fairness).
1.15 Subsequently, in another pure economic loss case, Sunny Metal &
Engineering Pte Ltd v Ng Khim Ming Eric [2007] 1 SLR (R) 853 (HC) and
[2007] 3 SLR (R) 782; SGCA 36 (Sunny Metal; see Sections 2.13, 4.1
and 4.2 below), Phang J (as he then was) attempted in the High Court to
reconcile Anns and Caparo through a two-stage process based on proximity and
policy factors. The Court of Appeal in that case left open the question of the
appropriate test for establishing duty of care.
(2) The Spandeck test: duty in all situations determined by two-stage test
comprising proximity and policy considerations
1.6 The question of the test to be used to determine the duty of care in
Singapore was resolved in Spandeck Engineering (S) Pte Ltd v Defence
Science & Technology Agency [2007] 4 SLR (R) 100; [2007] SGCA 37
(Spandeck), where the Court of Appeal (Chan Sek Keong CJ, Phang JA and VK
Rajah JA) held that a single two-stage test of the kind proposed by Phang J
in Sunny Metal – comprising first proximity and then policy considerations –
should be used to determine the existence of a duty of care in all situations,
regardless of whether the damage complained of was physical or purely
economic, although a more restricted application might be preferable in cases of
pure economic loss.

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The test, developed in the context of a pure economic loss case (see Section
2.13 below), initially focused in terms of proximity on the twin elements of
assumption of responsibility and reliance, although other proximity factors have
since been recognised: see, eg, Anwar Patrick Adrian & Anor v Ng Chong & Hue
LLC & Anor [2014] SGCA 14 (Anwar Patrick Adrian), in which the Court of
Appeal referred, inter alia, to factors such as control, vulnerability and
knowledge. In Spandeck, the Court of Appeal held that while the test was to be
applied incrementally with reference to the facts of decided cases, absence of
such cases would not be an absolute bar to a finding of duty. It also held that
while the threshold of factual foreseeability would remain, it would not be
necessary to include it as part of the legal test for duty. Another Court of Appeal
decisions applying the Spandeck test for duty of care include Skandinaviska
Enskilda Banken AB (Publ) , Singapore Branch v Asia Pacific Breweries
(Singapore) Pte Ltd and another and another appeal [2011] 3 SLR 540;
SGCA 22 – which also discusses the parallels between the ‘close connection
test’ for determining vicarious liability and the Spandeck test – and Tan Juay Pah
v Kimly Construction Pte Ltd and others [2012] SGCA 17 (Kimly; see Secton
2.13 below).
Case List:
(1) Spandeck Engineering (S) Pte Ltd v Defence Science & Technology
Agency [2007] 4 SLR (R) 100; [2007] SGCA 37

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Spandeck Engineering (S) Pte Ltd v Defence Science &

Technology Agency [2007] 4 SLR(R) 100; [2007] SGCA 37
Case Number : Civil Appeal No 3 of 2007
Decision Date : 08 August 2007
Tribunal/Court : Court of Appeal
Coram : Chan Sek Keong CJ; Andrew Phang Boon Leong JA; V K Rajah JA
Counsel Name(s) : Mohan R Pillay (MPillay) and Gopinath Pillai (Tan Peng Chin LLC) for
the appellant; Tai Chean Ming, Chong Kuan Keong and Tan Joo Seng
(Chong Chia & Lim LLC) for the respondent.
Parties : Spandeck Engineering (S) Pte Ltd — Defence Science & Technology
Agency
Tort – Negligence – Damages – Pure economic loss – Whether pure economic loss
recoverable in Singapore – Whether different test applying in relation to pure economic loss
to determine duty of care – Single test to apply notwithstanding damage claimed as pure
economic loss
Tort – Negligence – Duty of care – Applicable test to determine existence of duty of care –
Relationship between two-stage test and incremental approach – Application of two-stage
test comprising first proximity and second policy considerations with threshold consideration
of factual foreseeability – Incremental approach as methodological aid in applying specific
criterion of two-stage test
Tort – Negligence – Duty of care – Applicable test to determine existence of duty of care –
Whether type of damage claimed should result in different test – Application of single (two-
stage) test irrespective of type of damage claimed
Tort – Negligence – Duty of care – Whether there was proximity between contractor and
certifier given that contractor could submit disputes for arbitration – Whether there was
proximity between contractor and certifier given no direct contractual relationship between
contractor and certifier – Whether policy considerations negating finding of duty of care

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Facts
The appellant was awarded a contract based on its alternative tender (“the Contract”) by the
Government of Singapore (“the Employer”) to redevelop a medical facility at an army camp
(“the Project”). Pursuant to the Contract, the respondent was appointed the superintending
officer (“SO”) of the Project and was responsible for, inter alia, certifying interim payments in
respect of the appellant’s work for the Project. While cl 32.8 of the Contract precluded the
appellant from claiming against the Employer damages for the failure or delay of the
respondent in certification, cl 34 provided that the appellant had the right to claim the
amounts under-certified and interest thereon by commencing arbitration proceedings against
the Employer.
The tender documents for the Project required the appellant to submit a summary of tender
(“SOT”) and a cost breakdown (“CBD”). As the SOT and CBD submitted by the appellant
were based on its original base tender and did not accurately reflect the actual value of the
works to be carried out by the appellant, the quantity surveyor for the Project (“KPK”)
requested the appellant to submit a revised SOT and CBD. Pursuant to this request, the
appellant submitted a revised SOT and CBD which was incorporated into the Contract after
further revisions in or about October 1999 (“the Contract SOT” and “the Contract CBD”
respectively). In September 2000, the appellant contended that numerous items were
omitted from the Contract SOT and the Contract CBD and requested for KPK to approve a
revised SOT and CBD for the future assessment of its progress claims. The appellant
eventually decided not to continue with the revision of the Contract SOT and the Contract
CBD and subsequently novated the Contract to another contractor, suffering losses in the
process.
The appellant then claimed against the respondent for negligence on the basis that the
respondent owed it a duty of care to apply professional skill and judgment in certifying, in a
fair and unbiased manner, payment for work carried out by the appellant to avoid causing it
any pure economic loss. The appellant claimed that the respondent had breached this duty
by negligently undervaluing and under-certifying the appellant’s works. The trial judge found
that the respondent did not owe a duty of care to the appellant. On appeal, the threshold
issue was whether there was a duty of care owed by the respondent to the appellant and the
applicable test for ascertaining the existence of a duty of care.

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Held, dismissing the appeal:

(1) A single test should determine the imposition of a duty of care in all claims arising out
of negligence, irrespective of the type of the damages claimed. There was no justification for
a general exclusionary rule against recovery of all economic losses, nor was there a need to
adopt a different test for such cases. The single test eliminated the perception that there
were, at once, two or more tests which were equally applicable: at [71] and [72].
(2) The test to determine the imposition of a duty of care was a two-stage test comprising
of, first, proximity and, second, policy considerations, which were together preceded by the
threshold question of factual foreseeability. The first stage of proximity required sufficient
legal proximity between the claimant and defendant for a duty of care to arise. The focus
was on the closeness of the relationship between the parties, including physical,
circumstantial and causal proximity, supported by the twin criteria of voluntary assumption of
responsibility and reliance. If a positive answer to the threshold question of factual
foreseeability and the first stage of proximity was assumed, a prima facie duty of care arose.
Policy considerations, such as the presence of a contractual matrix which clearly defined the
rights and liabilities of the parties and their relative bargaining positions, then arose and were
applied to the factual matrix to determine whether or not to negate this prima facie duty:
at [77], [81], [83] and [115].
(3) The two-stage test was to be applied incrementally with reference to the facts of
decided cases. However, the absence of a factual precedent in analogous situations of
proximity and/or policy considerations should not preclude the court from extending liability
where it was just and fair to do so, taking into account the relevant policy consideration
against indeterminate liability against a tortfeasor: at [43], [73] and [115].
(4) Accepting that the threshold question of factual foreseeability was satisfied and
applying the two-stage test to the facts of the present case, the first stage requirement of
proximity was not satisfied. Although the appellant was precluded from claiming damages
against the Employer for failure or delay of the respondent in certification, the appellant was
always free to claim the amounts under-certified and interest thereon by arbitration
proceedings against the Employer. Since the Contract provided for correction by arbitration,
the respondent was not employed to exercise due care in the interest of the appellant, so it
could not be regarded as assuming responsibility to the appellant. Adopting an incremental
approach with respect to the requirement of proximity and in view of cl 34, there was no

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voluntarily assumption of responsibility nor reliance and the respondent could not be held to
have a duty of care to the appellant to certify the payments for work done correctly:
at [87], [89], [97], [99] to [102], [108] and [109].
(5) As for the second stage of policy considerations, it was relevant that the appellant had
freely entered into the Contract and knew that a claim against the Employer must be by way
of arbitration. There should not be imposed on the respondent a duty which the appellant
chose not to make a contractual one because the parties sought to regulate their relationship
by the Contract and the arbitration clause provided an adequate remedy in the event of
under-certification. Therefore, there were cogent policy reasons why a duty of care should
not be imposed on the respondent: at [96], [101] and [114].
[Observation: To balance fair and just results and the imposition of indeterminate liability on
an indeterminate class of tortfeasors without compromising the tort of negligence as a tool
for the fair redistribution of economic wealth was the crucial issue for the courts, and the
answer was in legal control mechanisms developed by the courts: at [29] and [30].]

21
CHAPTER 2
DUTY OF CARE: SPECIAL SITUATIONS
DUTY OF CARE NORMALLY HELD TO EXIST IN STRAIGHTFORWARD

CASES INVOLVING PHYSICAL DAMAGE TO PERSON OR PROPERTY
2.1 A duty of care will normally be held to exist in straightforward cases

involving physical damage to person or property: see, eg, Tesa Tape Asia
Pacific Pte Ltd v Wing Seng Logistics Pte Ltd [2006] 3 SLR (R) 116; [2006]
SGHC 73 (Tesa Tape; see Section 3.2 below). However, in exceptional cases,
where it would not be fair in the circumstances to impose a duty of care, the
courts may hold there to be no duty even where physical damage is
involved: Marc Rich & Co v Bishop Rock Marine Co Ltd [1996] 1 AC 211).
SITUATIONS WHERE COURTS DO NOT RECOGNISE DUTY BECAUSE OF

PUBLIC POLICY REASONS
2.2 In less typical circumstances, the courts are often more circumspect. They
have, at various times, and in various jurisdictions, refused – largely for reasons
of public policy – to recognize the existence of a duty of care in a range of
situations, such as:
 where moral issues are involved (eg, the cost of raising a healthy child
following a failed sterilization, as in McFarlane v Tayside Health
Board [2000] 2 AC 59, or the cost of raising a healthy child following a
negligently-performed IVF procedure resulting in implantation of an
embryo fertilized by the wrong sperm, as in ACB v Thomson Medical Pte
Ltd and others [2015] SGHC 9, or where a disabled child claims his
mother should have been advised to abort him, as in Re JU [2005] 4 SLR
(R) 96; [2005] SGHC 140 (see Section 3.10 below) and Harriton v
Stephens (2006) 226 ALR 391);

22
 where there is a conflict between negligence and other torts (eg, damage
caused by a negligent act or statement which would be protected under
the defence of qualified privilege in defamation – although note that no
such conflict is held to arise in relation to employee-references:
see Ramesh s/o Krishnan v AXA Life Insurance Singapore Pte Ltd [2015]
SGHC 125);
 where it is considered necessary to accord immunity to certain classes of

defendants (eg, damage caused as a result of judicial negligence).
2.3 In addition, there are a number of broad categories in which particular

rules have been established to restrict the situations in which a duty is owed.
These categories are examined below.
PSYCHIATRIC HARM: RECOVERY POSSIBLE WHEN “THREE

PROXIMITIES” ARE FULFILLED
Psychiatric Harm
2.4 Historically, the courts were unwilling to allow recovery for negligently
inflicted psychiatric illness. This unwillingness stemmed from an incomplete
understanding of mental illness, and from fears that allowing recovery for mental,
as opposed to physical, harm would give rise to fraudulent claims and lead to a
potential flood of litigation.
2.5 The first cases to allow claims for psychiatric illness - also known as
claims for “nervous shock”, due to the requirement that the condition must be
caused be a sudden shock to the system - involved primary victims (i.e., those

23
who feared for their own safety: Dulieu v White [1901] 2 KB 669). Technically,
under current English law, a primary victim who suffers medically diagnosed
psychiatric harm due to a defendant’s negligence need not even show that such
damage was reasonably foreseeable, as long as some physical damage could
reasonably have been foreseen: Page v Smith [1995] 2 All ER 736 (Page;
see Section 5.5 below). However, Page has been the subject of considerable
criticism and is regularly distinguished by the English courts: see, eg, Rothwell v
Chemical Engineering & Insulating Co Ltd & Anor [2007] UKHL 39 (a case which
also confirmed that risk and anxiety do not constitute actionable damage in
negligence).
Moreover, the Singapore Court of Appeal in Ngiam Kong Seng & Anor [2008] 3
SLR (R) 674; [2008] SGCA 23 (Ngaim; see Section 2.6 below) rejected Page,
holding that even in primary victim cases medically diagnosed psychiatric harm
must be foreseeable.
2.6 Claims may also be brought by secondary victims (ie, those who have
witnessed damage-causing events without themselves being in the sphere of
physical danger). However, such claims succeed in more limited circumstances.
In McLoughlin v O’Brian [1983] 1 AC 410 (McLoughlin), a case in which the
House of Lords allowed a claim by a mother who saw the immediate aftermath of
an accident involving her husband and children, Lord Wilberforce introduced the
now famous requirement of the “three proximities.”
Under the three proximities, secondary victims must have close ties of love and
affection with the victims of physical harm and be able to establish that they
suffered shock-induced psychiatric illness through witnessing the damage-
causing events or their immediate aftermath with their own unaided senses.
Although the decision in McLoughlin left open the precise range of situations in
which such claims might be brought, its scope was subsequently narrowed by
their Lordships in Alcock v Chief Constable of South Yorkshire Police [1992] 1
AC 310 (Alcock), a decision which, inter alia, restricted secondary victim claims
to persons in a spousal or parent/child relationship (or, if specifically proved, a

24
relationship of equivalent closeness) whose psychiatric illness was attributable to

sudden shock.
The strictness of Alcock has been mitigated elsewhere, particularly in Australia,

which has abandoned both the sudden shock requirement (in Tame v New South
Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35) and the
requirements of physical proximity and direct perception (in Gifford v Strang
Patrick Stevedoring Pty Ltd [2003] HCA 33). Some Australian states even allow
claims outside the spousal and parent/child categories. In addition, while most
English decisions (such as Sion v Hampstead Health Authority [1994] 5 Med LR
170) confirm a rigid application of the need for a secondary victim to be at the
actual scene of an accident and to suffer sudden shock, some, like Galli-Atkinson
v Seghal [2003] EWCA 697, where the physical proximity requirement was
relaxed, seemed to point to a partial easing of Alcock, However, in Taylor v A
Novo (UK) Ltd [2013] 3 WLR 989, the English Court of Appeal held, when
refusing a woman’s claim for post-traumatic stress suffered after she witnessed
her mother collapse and die following a workplace accident which had occurred
three weeks previously, that any extension of the boundaries in secondary victim
claims must be left to Parliament.
In Singapore, a secondary victim’s claim for psychiatric harm without proof that
the claimant had witnessed a sudden, shock-inducing event was allowed on
special facts in the medical negligence case of Pang Koi Fa v Lim Djoe Phing
[1993] 2 SLR (R) 366; [1993] SGHC 153. Following a detailed examination of
the rules on psychiatric harm, the Court of Appeal in Ngiam (see Section
2.5 above), while recognizing arguments for comprehensive legislative reform,
confirmed the applicability of the McLoughlin proximities in Singapore.
In Man Mohan Singh & Anor v Zurich Insurance (Singapore) Pte Ltd (now
known as QBE Insurance (Singapore) Pte Ltd & Anor & Anor appeal [2008]
3 SLR (R) 735; [2008] SGCA 24 (Man Mohan Singh; see Section 20.6.3 below),
decided just after Ngiam, the McLoughlin proximities were applied in refusing a
claim by parents who had neither been at the scene of the accident in which their

25
children were fatally injured nor had witnessed the immediate aftermath, and
whose action had not been definitively shown to relate to psychiatric harm rather
than pathological grief.
PURE ECONOMIC LOSS NOT LINKED TO PHYSICAL DAMAGE
2.7 The courts have always allowed recovery for economic loss which flows
from physical damage: Spartan Steel and Alloys Ltd v Martin & Co [1972] QB 27.
2.8 It was, however, historically impossible to recover for ‘pure’ economic loss
– ie, loss which could not be linked to physical damage. The refusal to allow such
claims was attributable to a number of concerns, the most significant of which
was the perceived danger of a possible flood of litigation due to the knock-on
effect of economic damage.
Statements
(1) Negligent statements: recovery possible when there is voluntary assumption

of responsibility and reasonable reliance
2.9 In Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465 (Hedley
Byrne) the House of Lords first recognized the possibility of recovering for pure
economic loss caused by negligent statements. The Hedley Byrne principle,
based on reasonable reliance by a claimant in circumstances where a defendant
voluntarily assumes responsibility for his statement, has since been applied in
numerous cases in all major jurisdictions.
The decision by the House of Lords in Caparo (see Section 1.6 above), which
confined the principle to situations where the statement was given by the maker
to a known recipient for a specific purpose of which the maker was aware, led for

26
some years to a more cautious approach to imposing liability for negligent

misstatements, particularly with respect to the liability of auditors when preparing
company accounts: see, eg, Ikumene Singapore Pte Ltd & Anor v Leong
Chee Leng [1993] 2 SLR (R) 480; [1993] SGCA 50 and Standard Chartered
Bank & Anor v Coopers & Lybrand [1993] 3 SLR (R) 712.
However, in recent years the courts have shown a renewed willingness to allow
claims for negligent misstatements: see, eg, Law Society v KPMG Peat Marwick
[2004] 4 All ER 540. For an application of Hedley Byrne in the context of an
architect’s duty to advise of the risks inherent in a building contract, see Sonny
Yap Boon Keng v Pacific Prince International Pte Ltd & Anor [2009] 1 SLR
(R) 385; [2008] SGHC 161.
Note that the courts remain cautious about allowing claims in negligence where
the relationship is governed by contract – although in Go Dante Yap v Bank
Austria Creditanstalt AG [2011] 4 SLR 559; [2011] SGCA 39 (Go Dante Yap;
see Section 2.13 below), the Court of Appeal recognised both an implied
contractual duty of care on the part of a bank in carrying out its client’s
instructions, as well as a duty of care in negligence to give advice of a kind which
could reasonably have been expected of it when providing the client with
financial services. (On the facts, however, there was no breach of either the
contractual or the tortious duty).

27
Professional Responsibility
(2) Professional responsibility: recovery possible for negligent

performance
2.10 The Hedley Byrne principle has also been extended in most jurisdictions
to cover professional responsibility (eg, the negligent drafting or execution of wills
and other documents by solicitors: White v Jones [1995] 2 AC 207; AEL and Ors
v Cheo Yeoh & Associates LLC & Anor [2014] SGHC 129). In such situations, a
duty of care is held to exist even when the negligence complained of takes the
form of an act rather than a statement, and even in the absence of active reliance
by the claimant.
For a decision of the Court of Appeal finding that a solicitor who negligently
caused loss to non-contracting parties owed those parties a duty of care,
see Anwar Patrick Adrian (Section 1.13 above).
With respect to the overlap between professional responsibility and negligent

statements, see too Plan Assure PA (formerly known as Patrick Lee PAC) v
Gaelic Inns Pte Ltd [2007] 4 SLR (R) 513; [2007] SGCA 41, and for further
discussion of the liability of professionals, see Section 3.6 below.

28
Acts
(3) Negligent acts causing pure economic loss: recoverable under the
Spandeck test
2.11 The position with respect to negligent acts which cause pure economic
loss varies from jurisdiction to jurisdiction. In Singapore, Australia and other
jurisdictions, it is – in some circumstances – possible to sue for pure economic
loss caused by negligent acts. However, English law still takes an extremely
restrictive approach to such claims.
2.12 In Singapore, the Court of Appeal has imposed a duty of care for pure
economic loss in actions brought by management corporations for the negligent
design and defective construction of condominiums in Ocean Front (see Section
1.9 above) and RSP Architects v MCST Plan No 1075 (Eastern Lagoon)
[1999] 2 SLR (R) 134.
The position in Singapore is similar to that in Bryan v Maloney (1995) 182 CLR
609, where the Australian High Court, in a decision based largely on the
economic vulnerability of individuals when purchasing their homes, imposed on
the builder of a house a duty of care towards a subsequent purchaser. (Indeed,
the decision of the High Court of Singapore in Management Corporation Strata
Title Plan No 2757 v Lee Mow Woo [2011] SGHC 112 suggests that the courts
in Singapore might even be willing to extend this principle to commercial
properties. If this is in fact the case, it will be consistent with the decision of the
Supreme Court of New Zealand in Body Corporate 207624 v North Shore City
Council [2012] NZSC 83, but not that of the High Court of Australia in Woolcock
Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.).

29
The House of Lords, on the other hand, unequivocally rejected the possibility of
recovering for pure economic loss associated with any category of defective
premises in Murphy v Brentwood District Council [1991] AC 398 (which
overruled Anns on the economic loss point), and the English courts have shown
no sign of relaxing this attitude.
(4) More restrictive approach adopted when imposing a duty of care for pure
economic loss in comparison to that applied in cases of physical damage
2.13 In P T Bumi (see Section 1.10 above), a case which involved an

unsuccessful claim for a defective chattel, the Singapore Court of Appeal
expressed the need for extreme caution in allowing claims outside the arena of
actions by management corporations with respect to residential property,
particularly where the circumstances were fundamentally contractual.
In United Project Consultants Pte Ltd v Leong Kwok Onn [2005] 4 SLR (R)
214 (United Project Consultants; see Section 6.3 below) the Court of Appeal
confirmed that in deciding whether to impose a duty of care for pure economic
loss the courts would adopt a more restrictive approach than that applied in
cases of physical damage, and a similarly cautious approach prevailed in the
Court of Appeal in Sunny Metal (see Sections 1.12 above
and 4.1 and 4.2 below), a contractual matrix case which raised issues of both tort
and contract.
In Spandeck (see Section 1.13 above), the Court of Appeal held that the same
two-stage test of proximity – based on assumption of responsibility and reliance –
and policy should be used with respect to all categories of claim. However, it
recognised that a more restrictive application might be appropriate in cases of
economic loss, and held that the action in that case, which again involved a
contractual matrix, must fail. The existence of a contractual matrix will not,
however, necessarily prove fatal to an action in negligence. In Animal Concerns
(see Section 1.13 above) the Court of Appeal held that both assumption of
responsibility and reliance were satisfied in an action brought by the claimant,

30
which had commissioned a construction project, against the project’s clerk of

works – notwithstanding the existence of a contract between the claimant and the
project’s contractor.
Similarly, in Go Dante Yap (see Section 2.9 above), it was held that, in addition
to an implied contractual duty, a bank owed its client a duty of care in negligence
when providing financial services (although neither duty was breached on the
facts). For an economic loss case involving different issues, see Kimly (Section
1.13 above) in which the Court of Appeal held that a certifying engineer ought not
to have to act as insurer for a contractor’s statutory obligations to ensure worker
safety.
2.14 Where a claimant suffers pure economic loss through damage not to his
own property but to property belonging to someone else, actions have been
allowed in Australia, again based on the specific economic vulnerability to which
the defendant’s negligence has exposed the claimant: Perre & ors v Apand Pty
Ltd (1999) 198 CLR 180. However, English law does not allow such actions in
any circumstances: Candlewood Navigation v Mitsui OSK Lines [1986] AC 1.
NO GENERAL DUTY FOR PURE OMISSIONS
(1) Reasons for not imposing duty with respect to pure omissions
2.15 Generally, no duty is imposed with respect to pure omissions – ie, situations
in which a defendant who has created no danger to the claimant merely fails to
prevent him from sustaining harm. There are a number of reasons for this. One is
the large number of potential defendants in situations of failure to act. Another is
society’s focus on the more modest aim of discouraging wrongdoing rather than
on the more ambitious one of encouraging good deeds. For these and other
reasons, there is, for example, ordinarily no duty to rescue – even when such an
act could be carried out without personal risk.

31
(2) Situations where there is a duty to act to prevent harm
2.16 However, there will be a duty to act to prevent harm in certain situations, eg:
 where the defendant and the claimant are in a special relationship of
dependence (such as guardian/ child, carrier/ passenger, employer/
employee);
 where the defendant has control over something which, or someone who,
poses a threat to the claimant (in which respect, note that the
responsibility of an occupier of premises to persons entering those
premises – which was formerly determined by the application of special
rules relating to occupiers’ liability – is now broadly governed by the
Spandeck test for duty of care: Toh Siew Kee v Ho Ah Lam
Ferrocement (Pte) Ltd [2013] SGCA 29); or
 where the defendant has assumed responsibility for the claimant or his
property.
STATUTORY AUTHORITIES OWE A DUTY ONLY IN RESTRICTED

CIRCUMSTANCES
(1) Duty of care unlikely to arise where conduct involves policy,

discretionary elements or the balancing of resources
2.17 A statutory authority owes a duty of care to members of the public for a
failure to exercise its statutory powers – or for the improper exercise of those
powers – only in restricted circumstances. This is because statutory authorities
invariably have limited resources and are unlikely when allocating those
resources to be able to act in a way which satisfies all those affected by their
decisions. The courts, faced with turning what is effectively a public duty in to a
private one, have attempted to delimit the duty of care in negligence by
developing various tests. These tests include the operational/policy test (Anns,
see Section 1.4 to 1.5 above), the ‘irrationality’ test (Stovin v Wise [1996] AC
293), and the ‘justiciability’ test (Barrett v Enfield London Borough Council [1999]
3 WLR 628). It is generally more likely that an act rather than an omission will be

32
regarded as justiciable, and it is unlikely that conduct which involves policy or

discretionary elements or the balancing of resources or competing functions will
be held to give rise to a duty of care.
(2) Developments in the United Kingdom
2.18 For several years, the UK courts were extremely cautious in their attitude
to claims against statutory authorities: X (Minors) v Bedfordshire County Council
[1995] 2 AC 633. However, later cases suggest a slight relaxation in this respect,
particularly where there is a direct relationship between the statutory authority
and the claimant: Phelps v Hillingdon London Borough Council [2001] 2 AC 619.
In Singapore, observations by the Court of Appeal in Andrea De Cruz

(see Section 1.10 above and 4.13 below) indicate the possibility of regulatory
bodies being held responsible for the negligent ‘rubber stamping’ of commercial
products.
2.19 A number of cases relate to the duty owed by the emergency services in
the exercise of their statutory functions. The majority of these cases concern the
police, whose duty to protect the public at large does not extend to a duty to
protect individual members of the public during the conduct of an investigation:
Hill v Chief Constable of West Yorkshire Police [1989] AC 53, or even in
response to an emergency call: Michael v Chief Constable of South Wales Police
[2015] UKSC 2.
The rationale for this seemingly harsh approach is that a private law duty by the
police to protect individuals from criminal acts committed by third parties would
not only be difficult to confine within rational parameters, but would also be
contrary to the ordinary principles of common law. The fire services owe no duty
to individual members of the public either, even when they have undertaken to
deal with a fire, unless they actually make matters worse through their positive
intervention: Capital and Counties v Hampshire County Council [1997] QB 1004.
However, the ambulance services have been held to owe a duty of care to

33
individual members of the public whom they have undertaken to assist: Kent v
London Ambulance Services [1999] Lloyd’s Rep Med 58.
Case List:
(1) Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd [2006] 3
SLR (R) 116; [2006] SGHC 73
(2) ACB v Thomson Medical Pte Ltd and others [2015] SGHC 9
(3) Ngiam Kong Seng & Anor [2008] 3 SLR (R) 674; [2008] SGCA 23
(4) Pang Koi Fa v Lim Djoe Phing [1993] 2 SLR (R) 366; [1993] SGHC 153
(5) Man Mohan Singh & Anor v Zurich Insurance (Singapore) Pte Ltd (now
known as QBE Insurance (Singapore) Pte Ltd & Anor & Anor appeal [2008]
3 SLR (R) 735; [2008] SGCA 24
(6) Go Dante Yap v Bank Austria Creditanstalt AG [2011] 4 SLR 559; [2011]
SGCA 39
(7) Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd [2013] SGCA 29)

34
Ngiam Kong Seng and another v Lim Chiew Hock

[2008] 3 SLR(R) 674; [2008] SGCA 23
Decision Date : 29 May 2008
Coram : Chan Sek Keong CJ; Andrew Phang Boon Leong JA; V K Rajah JA
Counsel Name(s) : Cecilia Hendrick and Wee Ai Tin Jayne (Kelvin Chia Partnership) for
the appellants; Quentin Loh SC (Rajah & Tann) and Anthony Wee
(United Legal Alliance LLC) for the respondent.
Parties : Ngiam Kong Seng and another — Lim Chiew Hock
Tort – Negligence – Appeal against finding of fact – Whether trial judge plainly wrong to have
found that accident was not caused by tortfeasor
Tort – Negligence – Duty of care – Psychiatric harm – Applicable test to determine existence
of duty of care – Application of two-stage test set out in Spandeck Engineering (S) Pte Ltd v
Defence Science & Technology Agency – First stage involving consideration of whether
there was sufficient legal proximity with three factors set out by Lord Wilberforce
in McLoughlin v O’Brian playing important role – Second stage involving consideration of
whether there are any public policy factors militating against the court imposing duty of
care – Threshold considerations of recognisable psychiatric illness and factual foreseeability
Tort – Negligence – Duty of care – Psychiatric harm – Applicable test to determine existence
of duty of care – Whether type of damage claimed should result in different test from two-
stage test set out in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology
Agency – Application of two-stage test irrespective of type of damage claimed
Tort – Negligence – Duty of care – Whether tortfeasor owing duty of care not to cause
psychiatric harm – Whether communication of matters relating to accident sufficient to found
duty of care

35
Facts
The first appellant, who was riding a motorcycle, was involved in an accident which was
allegedly caused by the respondent, who was driving a taxi. As a result of the accident, the
first appellant sustained severe injuries which rendered him a tetraplegic.
Both immediately after and during the period following the accident, the respondent
represented himself to be a helpful bystander who had rendered assistance to the first
appellant. The second appellant was, accordingly, led to believe that the respondent was a
good Samaritan and developed feelings of gratitude towards him. The inquiries by the
appellants’ solicitors eventually led to the second appellant being told that the respondent
had been involved in the accident. She subsequently suffered from major depression and
suicidal tendencies resulting from, she claimed, having been “betrayed”. The appellants
eventually started an action in negligence.
In the High Court, the first appellant alleged that the respondent’s taxi had collided into the
rear of his motorcycle causing him to be flung backwards and onto the road. The second
appellant alleged that she had suffered from clinical depression as a result of the
respondent’s failure to inform her of the severity of the first appellant’s injuries and of his (the
respondent’s) involvement in the accident and the respondent’s conduct in causing her to
believe that he had been a helpful bystander at the time of the accident. In his defence, the
respondent argued that the taxi had not hit the motorcycle, and argued that even if there had
been a collision between the two vehicles, it would have taken place after the motorcycle
had self-skidded. The respondent also argued that the second appellant’s claim should fail
as she had not witnessed the accident, nor had she been of sufficient proximity in time or
space to the scene of the accident such as would result in her alleged psychiatric problems.
The trial judge dismissed the first appellant’s claim as she found the evidence of the first
appellant to be inconsistent and the respondent’s evidence, in contrast, to be consistent.
Moreover, the evidence of the independent witnesses, such as, inter alia, the respondent’s
passenger at the material time, as well as other evidence, such as, inter alia, the absence of
damage to the vehicles concerned, supported the respondent’s case. In so far as the second
appellant was concerned, the trial judge was of the view that the second appellant’s case
hinged on the first appellant’s case, and, therefore, since the first appellant’s claim had been
dismissed, the second appellant’s claim must, as a consequence, fail in limine. The trial
judge also held that even if the first appellant’s claim was allowed, the second appellant’s
claim would still have been rejected on the grounds, inter alia, that: (a) the claim had no

36
basis in law and was too remote; (b) the depression suffered by the second appellant had
been caused by her inability to cope with her new burden of being the first appellant’s
primary caregiver rather than by the respondent’s acts or omissions; and (c) the claim had
merely been an afterthought. The appellants subsequently appealed against the trial judge’s
decision.
Held, dismissing the appeal:

(1) The appeal, as far as the first appellant was concerned, should be dismissed. There
was no basis for finding that the trial judge’s decision was plainly wrong as, inter alia, there
were inconsistencies in the first appellant’s evidence; the evidence from the only
independent eyewitness (ie, the respondent’s passenger at the material time) did not support
the first appellant’s evidence; there was a lack of objective evidence in support of the first
appellant’s case: at [14] to [18], [148].
(2) The presence of liability for negligence in cases of psychiatric harm should be analysed
within the framework of the two-stage test that the Court of Appeal laid down in Spandeck
Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 for
determining whether a duty of care in negligence existed, which was to be applied
incrementally, although specific criteria would apply in this particular context:
at [22], [48], [109], [121] and [123].
(3) Although English decisions on the common law were accorded great respect by our
courts, they ought not to be followed blindly. Given the various difficulties pertaining to both
justification as well as justice and fairness with regard to the current approach of the House
of Lords towards the establishing of liability for negligence in cases of psychiatric harm as
set out in Page v Smith [1996] AC 155, the law as laid down by the House of Lords ought not
to be followed: at [95].
(4) Similar to cases of pure economic loss and cases of physical damage, for cases of
psychiatric harm, certain prerequisites must be met before the two-stage test became
relevant. First, the type of injury suffered must be a recognisable psychiatric illness (the
presence of which would ideally be established by an independent psychiatrist agreed upon
by the parties or appointed by the court), and, second, it must have been factually
foreseeable that the psychiatric harm would be sustained as a result of the negligence in
question: at [97], [109] and [131].

37
(5) For cases of psychiatric harm, at the first stage of the two-stage test, the court would
consider whether there was sufficient legal proximity between the plaintiff and the defendant
at the material time, with the three factors set out by Lord Wilberforce in McLoughlin v
O’Brian [1983] 1 AC 410, viz: (a) the class of persons whose claims should be recognised;
(b) the proximity of the claimants to the accident; and (c) the means by which the shock was
caused, playing an important role at this stage of the inquiry. Every application of the
concept of proximity, however, would be heavily dependent on the precise factual matrix
concerned. In other words, there would be no mechanical formula applied by the court vis-à-
vis these factors. In a similar vein, no one factor would be more important than the other; nor
would there be any one unique way in which a particular factor would be applied:
at [98], [108] to [110], [121].
(6) For cases of psychiatric harm, at the second stage of the two-stage test, the court
would consider whether there were any public policy factors that militated against the court
imposing a duty of care on the defendant: at [109] and [122].
(7) The appeal, as far as the second appellant was concerned, should be dismissed as
there was no duty of care owed by the respondent to the second appellant, even on the
assumption that the second appellant had suffered a recognisable psychiatric illness. The
only possible conduct in respect of which the respondent could arguably be said to owe a
duty of care to the second appellant would be his communication of matters relating to the
accident to the second appellant. Turning to the threshold prerequisite of factual
foreseeability, to hold that it was reasonably foreseeable that the mere communication of the
information in question without more could result in harm to a party would boggle the
imagination and stretch the realms of reality. Turning to the first stage of the two-stage test,
legal proximity was not present as, inter alia, the second appellant was not proximate to the
accident and the means by which the harm was caused would be one where the court
should be slow to allow recovery. Turning to the second stage of the two-stage test, public
policy considerations would militate against the finding of a duty of care where
communication of information was concerned, even assuming that legal proximity could be
established at the first stage, except in situations where a malign intention on the part of the
person communicating the information was present: at [132], [134], [140], [142], [143] and
[148].

38
[Observation: Whether or not reform of the tort of negligence vis-à-vis psychiatric harm
was to be effected was one that was best left to the Legislature. Many issues which had
to be grappled with laid wholly outside the expertise of the court and related to policy
matters which required the Legislature’s consideration: at [120].]

39
CHAPTER 3
BREACH OF DUTY
3.1 Before a court can determine whether the defendant has breached his
duty to the claimant, it is first necessary to establish the standard of care to which
he will be held.
The Standard of Care
A. Establishing the due standard of care: whether reasonable care has

been taken to avoid reasonably foreseeable harm
3.2 The basic question in every case is whether reasonable care has been
taken to avoid reasonably foreseeable harm: Government of Malaysia v Jumal b
Mahmud [1977] 2 MLJ 103.
Factors which are relevant in this determination include:

 the likelihood or probability of the risk eventuating;
 the seriousness or gravity of the foreseeable risk;
 the practicability of avoiding or minimising the risk;
 the justifiability of taking the risk;
 the time for assessing the risk;
 the relevant characteristics of the foreseeable plaintiff
For an application of these factors, see the judgement of Choo Han Teck J in
Tesa Tape (see Section 2.1 above). The test used is that of the reasonable
person in the circumstances. It is an objective test, under which a defendant is
judged not by his own characteristics and attributes but by the nature of the task
he is performing and the circumstances in which he is performing it. For a clear

40
illustration of the balancing of factors – including the magnitude of the risk

inherent in an activity, the social utility of that activity, the seriousness of the
harm should the risk eventuate, and the cost of taking precautions against the
risk, see too the judgment of Coomaraswamy J in BNJ v SMRT Trains Ltd and
another [2014] 2 SLR 7; [2013] SGHC 286 (BNJ; see too Section 3.13 below).
3.3 Note that in certain areas – such as industrial safety – there is

considerable interplay between duty and standard of care. For a Court of Appeal
decision recognising the extensive, non-delegable, nature of an employer’s
obligations to its employees, and the standard of care to which the employer will
consequently be held, see Chandran a/l Subbiah v Dockers Marine Pte Ltd
[2010] 1 SLR 786; [2009] SGCA 58. For confirmation that industry standards
should be taken into account in assessing the standard of care, see too Jurong
Primewide Pte Ltd v Moh Seng Cranes Pte Ltd and others [2014] SGCA 6.
B. Special standards of care
(1) Standard of care not normally lowered to take account of a defendant’s

inexperience
3.4 The standard of care is not normally lowered to take account of a

defendant’s inexperience, since that would be unfair to those whom he injures:
Nettleship v Weston [1971] 2 QB 581. For much the same reason, an amateur is
judged according to objective standards of acceptability for the task in which he
is engaged, not according to his personal level of expertise.
(2) Lower standard applied to children
3.5 A lower standard is applied to children: Mullin v Richards [1998] 1 WLR

1304 and, it seems, to conduct in the heat of competition during sporting events:
Wooldridge v Sumner [1963] 2 QB 43 (see too Section 6.8 below). A higher
standard is applicable where the defendant knows or can foresee that a claimant
is particularly vulnerable: Paris v Stepney Borough Council [1951] AC 367.

41
(3) Professional negligence: standard of care is that of “the ordinary skilled man
exercising and professing to have that special skill”
3.6 The duty owed by professionals extends equally to acts and statements
and is nowadays encompassed by the notion of ‘professional responsibility’
(see Section 2.10 above). The applicable standard of care, as laid down by
McNair J. in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
(Bolam) at 586, is that of “the ordinary skilled man exercising and professing to
have that special skill.”
Under the Bolam test, a professional will not be negligent as long as he meets
the standard of an ordinary competent exponent of his profession. (For an
application of the Bolam test with respect to auditors, see JSI Shipping (S) Pte
Ltd v Teofoongwonglcloong (A Firm) [2007] 4 SLR (R) 460; [2007] SGCA
40 (JSI Shipping; see Sections 3.8 and 20.4.10 below)).
3.7 In the conduct of trades and professions, the law allows for a variety of
levels of qualification, and thus a variety of standards, as long as the level of
expertise which can be expected from any given professional is readily apparent
from his particular qualification (eg, that he is a general practitioner rather than a
specialist). However, every professional must achieve an acceptable level of
basic competence: Ang Tiong Seng v Goh Huan Chir [1970] 2 MLJ 271.
3.8 When assessing whether or not a professional has been negligent, the
courts will normally use as their benchmark the common practice within the
relevant profession. However, where they consider that a profession adopts an
unjustifiably lax practice, they may condemn the common standard as negligent:
Edward Wong Finance Co Ltd v Johnson, Stokes and Master [1984] AC 296 and
JSI Shipping (see Sections 3.6 above and 3.10below).

42
Medical Negligence
(4) Medical negligence: different applications of the Bolam test in various

jurisdictions
3.9 In his decision in Bolam (see Section 3.6 above) McNair J. laid down a
specific test for determining the standard of care applicable to the medical
profession. Under this test, a doctor “is not guilty of negligence if he has acted in
accordance with a practice accepted as proper by a responsible body of medical
men skilled in that particular art.”
3.10 The Bolam test forms the basis for assessing medical negligence in
Singapore and in the UK, although in the latter its application is now confined to
negligent treatment and diagnosis (see Section 3.11 below). Even though the
question of whether or not a doctor has been negligent is ultimately for the court
to decide (Bolitho v City and Hackney Health Authority [1998] AC 232), the
significance which the courts place on the opinions of fellow doctors when
determining the issue of negligence tends – particularly in Singapore – to make it
more difficult for claimants to succeed in medical actions than might be the case
in actions against other professions: Dr Khoo James and anor v Gunapathy
d/o Muniandy [2002] 2 SLR 414. For an application of Gunapathy, see Re JU
(Section 2.2 above), a decision which also raises issues relating to the difficult
and somewhat controversial areas of wrongful life and wrongful birth. (Note,
however, that the decision of the Court of Appeal in JSI Shipping (see Sections
3.6 and 3.8 above) could be interpreted as favouring a common professional
standard.)
3.11 In Rogers v Whitaker (1992) 175 CLR 479, which concerned failure to
disclose a risk involved in medical treatment, the Bolam test was rejected in
Australia in favour of a test based on the duty to disclose a risk which a
reasonable patient would consider material. This followed the approach already

43
adopted in Canada under Reibl v Hughes (1980) 114 DLR (3d). Although under
the decision in Sidaway v Bethlem Royal Hospital [1985] AC 871 (Sidaway) the
English courts traditionally applied the Bolam test to cases of negligent non-
disclosure of risks, the decision of the House of Lords in Chester v Afshar [2004]
UKHL 41 (Chester; see Section 4.11 below), while focusing primarily on the
issue of causation, effectively favoured a reasonable patient approach to failure
to disclose a risk of treatment. Application of the reasonable patient approach in
the UK has now been confirmed by the Supreme Court in Montgomery v
Lanarkshire Health Board [2015] UKSC 11 (Montgomery), which overruled
Sidaway.
Interestingly, although in most jurisdictions the rejection of the Bolam test has
been largely confined to cases involving non-disclosure of medical risks, the
Federal Court of Malaysia held in Foo Fia Na v Dr Soo Fook Mun [2007] 1 MLJ
593 that the reasonable patient test should be used in Malaysia to
assess all forms of medical negligence.
In Singapore, however, under Gunapathy (see Section 3.10 above) the Bolam
test continues to apply not only to negligent diagnosis and treatment, but also to
negligent non-disclosure of risks. In the wake of Montgomery, the High Court has
left open for determination at a later date the question of whether Singapore
should now adopt the same approach to the non-disclosure of risks as that in the
UK: see Chua Thong Jiang Andrew v Yue Wai Mun and another [2015]
SGHC 119.

44
Proof of Breach
C. Proving breach of duty is a question of fact determined by specific

circumstances of each case
3.12 Whether or not a duty has been breached is a question of fact to be

determined according to the specific circumstances of each case. For this
reason, precedents are of value only in terms of the general principles which they
establish: Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743.
(1) Shifting of burden to the defendant: where exact cause of incident is

unknown, defendant had control over the agent of harm, and that relevant
damage would not normally have occurred in the absence of negligence
3.13 In some circumstances, the claimant may lack sufficient knowledge to

prove negligence on the part of the defendant. In such circumstances, the
defendant will clearly choose to remain silent unless the normal rules for
establishing negligence are varied. The courts will vary the rules and infer
negligence if the claimant can show that the exact cause of the incident is
unknown, that the defendant had control over the agent of harm, and that the
relevant damage would not normally have occurred in the absence of negligence.
On occasion the effect of this inference (sometimes referred to under the Latin
maxim res ipsa loquitur) has been to shift the legal burden of proof onto the
defendant, but it more frequently results only in the evidentiary burden being
shifted. This requires the defendant to adduce evidence in rebuttal, failing which
the claimant’s case will succeed: Awang b Dollah v Shun Shing Construction
[1996] SGHC 296. Note, however, that in BNJ (see section 3.2 above) the High
Court of Singapore confirmed that res ipsa loquitur will not apply where the
circumstances are clear and there is no evidentiary gap.

45
Case List:
(1) BNJ v SMRT Trains Ltd and another [2014] 2 SLR 7; [2013] SGHC 286
(2) Chandran a/l Subbiah v Dockers Marine Pte Ltd [2010] 1 SLR 786; [2009]
SGCA 58
(3) Dr Khoo James and anor v Gunapathy d/o Muniandy [2002] 2 SLR 414
(4) Awang b Dollah v Shun Shing Construction [1996] SGHC 296

46
Awang bin Dollah v Shun Shing Construction &

Engineering Co Ltd and other appeals
[1997] 2 SLR(R) 746; [1997] SGCA 33
Case Number : Civil Appeals Nos 115, 126 and 145 of 1996
Decision Date : 13 August 1997
Coram : Yong Pung How CJ; M Karthigesu JA; L P Thean JA
Counsel Name(s) : Subbiah Pillai (Pillai & Pillai), Karuppan Chettiar and Steven Lam Kuet
Keng (Karuppan Chettiar & Partners) for the appellant in CA 115/1996;
Lim Chong Boon (Derrick Ravi & Partners) for the respondents in CA
115/1996 and CA 145/1996 and for the appellants in CA 126/1996; N B
Rao (B Rao & K S Rajah) for the respondents in CA 126/1996 and for
the appellants in CA 145/1996.
Parties : Awang bin Dollah — Shun Shing Construction & Engineering Co Ltd
Insurance – Accident insurance – Indemnity – Plaintiff construction worker injured in worksite

accident – Defendant main contractors in charge of worksite – Plaintiff employed by
subcontractor on worksite – Plaintiff bringing claim against defendants – Defendants seeking
indemnity from insurers for claims brought by plaintiff – Whether policy applying to plaintiff’s
claim
Tort – Breach of statutory duty – Duties imposed by statute – Factories Act – Applicability
and scope of Factories Act – Whether construction site regarded as “factory” – Whether
defendant breaching duty to ensure site “of sound construction and properly maintained” –
Whether defendant breaching duty to keep work place safe – Sections 33(1) and 33(3)
Factories Act (Cap 104, 1985 Rev Ed)
Tort – Negligence – Duty of care – Plaintiff construction worker injured in worksite accident –
Defendant main contractors in charge of worksite – No direct contractual relationship
between plaintiff and defendant – Plaintiff employed by subcontractor – Whether defendant
owing plaintiff duty of care

47
Tort – Occupier’s liability – Duty of care – Relevant test of “occupier” – Duty to invitee –
Plaintiff construction worker injured in worksite accident – Defendant main contractors in
charge of worksite – Applicable principles pertaining to occupier’s liability – Collapse of
uncompleted structure – Whether doctrine of res ipsa loquitur applying – Whether defendant
discharging burden of disproving negligence
Facts
The plaintiff was injured when an uncompleted site office at a construction site (“the site”)
collapsed onto him. The site belonged to the Housing and Development Board (“HDB”), who
had awarded the construction contract in relation to the site to the defendant (“Shun Shing”).
The latter had in turn subcontracted the carpentry works to Hood Seng who then
subcontracted part of these works to Quick Start.
The plaintiff had commenced suit against HDB, Shun Shing and Quick Start, claiming
damages for personal injury. He premised his claim on negligence and a breach of duty as
employers and/or occupiers of the site and also on a breach of duty under the Factories Act
(Cap 104, 1985 Rev Ed).
Only the plaintiff’s suit against Shun Shing proceeded to trial. He discontinued his claim
against HDB and obtained interlocutory judgment in default of appearance against Quick
Start. Subsequently, Shun Shing commenced third-party proceedings against their third-
party insurers (“Cosmic”), claiming an indemnity for any compensation which they were
liable to pay the plaintiff should his action succeed.
The trial judge (“the judge”) dismissed the plaintiff’s claims against Shun Shing and held that:
(a) the plaintiff had been employed by Quick Start, rather than Shun Shing; (b) although
Shun Shing was the occupier of the site, the plaintiff’s claim for occupier’s liability failed as
the collapse of the site office was caused by the combined force of the heavy rain and strong
gusty wind on that day; and (c) the Factories Act was inapplicable to the facts of the present
case. The judge further held that had the plaintiff succeeded in his claim against Shun Shing,
the latter would have been entitled to an indemnity from Cosmic. However, given that the
plaintiff’s claim was dismissed, Shun Shing’s claim against Cosmic would be dismissed. On
the question of costs, the judge held that Shun Shing was justified in commencing third-party
proceedings and thus ordered Cosmic to pay the costs of the third-party proceedings.

48
The plaintiff appealed against the judge’s decision dismissing his claim against Shun Shing,
while Cosmic appealed against the judge’s decision that it was liable to indemnify Shun
Shing for any damages the latter had to pay the plaintiff. Shun Shing also appealed, arguing
that should the plaintiff succeed in his appeal, the order dismissing its claim against Cosmic
should correspondingly be reversed.
Held, allowing the appeals of the plaintiff and the third party and dismissing the
defendants’ appeal:
(1) A main contractor owed a workman a duty of care as if he was the workman’s
“employer”. This was so even if the workman was not employed by him but by a
subcontractor, provided the main contractor exercised or had the right to exercise control
over the workman in respect of the work which he was engaged to perform: at [20].
(2) In the present case, the plaintiff had to establish that at the material time, Shun Shing
had the control or the right to exercise control over him in respect of the work he was
engaged to do. The plaintiff, however, had failed to do so. On the facts, there was no
evidence that any officer or employee of Shun Shing was at the site at the material time and
exercised any control or supervision over the construction of the site office: at [24] to [26].
(3) Shun Shing had been negligent and was liable to the plaintiff as occupiers of the site. In
the ordinary course of things, the collapse of the site office would not have occurred. The
collapse of the site office thus raised a strong inference that reasonable care had not been
exercised in its construction and that there was negligence in either its design or actual
construction. The occurrence of such an event spoke for itself. As such, the rule of evidence
(viz, res ipsa loquitur) applied, and a prima facie case of negligence was established against
Shun Shing. The evidential burden shifted to Shun Shing to show that it had taken
reasonable care in the construction of the site office and that the collapse was not due to any
fault on their part. Shun Shing, however, had failed to adduce any evidence in this respect
and thereby failed to discharge this burden: at [33] and [34].
(4) The site, although not literally a “factory”, came within the definition of a “factory” under
the Factories Act. The provisions of the Factories Act thus applied to the present case.
Section 33(1) of the Factories Act imposed a duty on Shun Shing to ensure that the place of
work was “of sound construction and properly maintained” at the time the structure was
constructed. This duty was a two-fold one – it required Shun Shing to ensure that the

49
structure could withstand any stresses to which it would ordinarily be subject, as well as to
maintain the structure in an efficient state, in efficient working order and in good repair. This
obligation was absolute and continuing and was not discharged by them showing that they
had taken all reasonable care to comply with the provision: at [43].
(5) Under s 33(3), Shun Shing was only required to make and keep the place of work safe
so far as was reasonably practicable. This obligation was not absolute but was qualified by
the words “so far as is reasonably practicable”. The burden was on the occupier of the
premises to show that he had taken all reasonable steps to make and keep the place of work
safe as only the occupier had the requisite knowledge and expertise and was in a position to
ensure compliance with the Act: at [46] and [47].
(6) On the evidence, Shun Shing had breached the statutory duties imposed upon it under
ss 33(1) and 33(3) of the Factories Act. Shun Shing had not shown that they had taken any
steps to ensure that the site office was of sound construction and was properly maintained.
Nor had they shown that they had taken steps, so far as was reasonably practicable, to
ensure that the site office was made and kept safe for any person working therein. The fact
that the site office collapsed in the circumstances in which it would ordinarily have withstood
was clear evidence that Shun Shing had breached their statutory duties: at [48].
(7) Shun Shing was not entitled to an indemnity from Cosmic under the policy. It was
purely a matter of construction whether the term “subcontractors” in the policy included Shun
Shing’s sub-subcontractors down the chain of subcontracts. There was nothing in the
context of the policy which indicated that such a broad construction should be adopted. In
the present context, the definition of “sub-contractors’ workers” could not be read and
construed to cover workers of sub-subcontractors down the chain of subcontracts. In any
event, Shun Shing’s claim against Cosmic would fail even if a broad construction were
taken. This was because the plaintiff had succeeded against Shun Shing on the premises of
occupier’s liability and breach of statutory duties under the Factories Act, rather than that
arising out of an employer-employee relationship: at [58] and [59].

50
CHAPTER 4
CAUSATION & REMOTENESS OF DAMAGE
A. Causation: the physical link between the defendant’s negligence and the
claimant’s damage
4.1 Causation relates to the physical link between the defendant’s negligence
and the claimant’s damage. Even if it can be shown both that the defendant
breached his duty of care to the claimant and that the claimant sustained
damage, the claim will not succeed unless the damage is shown to have resulted
from the breach. For a detailed analysis of the rules on causation as applied in
Singapore (albeit with little discussion of recent developments elsewhere), see
the decision of the Court of Appeal in Sunny Metal & Engineering Pte Ltd v Ng
Khim Ming Eric [2007] 1 SLR (R) 853 (HC) and [2007] 3 SLR (R) 782; SGCA
36 (Sections 1.12 and 2.13 above and 4.2 below).
Simple Issues of Causation
B. The ‘but-for’ test: dealing with simple issues of causation
4.2 The basic test for establishing causation is the ‘but-for’ test, under which
the defendant will be liable only if the claimant’s damage would not have
occurred but for his negligence – or, looked at the other way round, the
defendant will not be liable if the damage would, or could, have happened
anyway, regardless of his negligence: Yeo Peng Hock v Pai Lily [2001] 3 SLR
(R) 555. (In Sunny Metal (Sections 1.12, 2.13 and 4.1 above) the Court of
Appeal held that the but-for test could also be extended to determine the issue of
causation in fact in contract cases).

51
C. Multiple consecutive causes: involvement of either a second tortfeasor

or a natural event
4.3 The ‘but-for’ test works well in straightforward situations where it is easy to
establish that the damage has been caused by the defendant's negligent act: see
dicta in F v Chan Tanny [2003] 4 SLR (R) 231, but it proves inadequate in
establishing causation in more complex situations where a number of actual or
potential causes operate either consecutively or concurrently.
Multiple Consecutive Causes
4.4 When there are two discrete torts, one following the other, but no
additional damage is caused by the second tort, only the first tortfeasor is liable.
Where additional damage is caused by the second tort, each tortfeasor is liable
for the damage he has caused. The first tortfeasor’s liability remains what it
would have been had the second tort not occurred, even if the physical
manifestations of the second tort appear to wipe out the damage caused by the
first tort: Baker v Willoughby [1970] AC 467 (Baker). This avoids the claimant
being under-compensated or the second tortfeasor compensating for more harm
than he has actually caused. (Note that in Salcon Ltd v United Cement Pte Ltd
[2004] 4 SLR(R) 353, the Court of Appeal held that – even assuming Baker to be
applicable in Singapore – it must be confined to personal injuries, and cannot
extend to commercial disputes).
4.5 However, when a tort is followed by a natural event which wipes out the
physical effects of the tort, the tortfeasor’s liability ceases at the date when the
supervening condition manifests itself: Jobling v Associated Dairies [1982] AC
794. If this were not so, the defendant would be liable for damage which would
have occurred naturally anyway due to the ‘vicissitudes of life.’

52
D. Multiple potential causes: claimant can succeed only if he proves on the

balance of probabilities that the damage is attributable to the tort
4.6 Where there are several discrete potential causes of harm, some of which
are tortious and some of which are natural, the basic rule is that the claimant can
succeed only if he proves on the balance of probabilities that the damage is
attributable to the tortious conduct: Wilsher v Essex Area Health Authority [1988]
AC 1074 (Wilsher).
4.7 In circumstances where a defendant has exclusive control over a damage-

causing agent, he may be held liable even if his negligence cannot be shown to
be the sole cause of the damage, as long as it can be proved to have made a
material contribution: Bonnington Castings v Wardlaw [1956] AC 613 (Wardlaw).
The Wardlaw principle was extended in McGhee v National Coal Board [1973] 1
WLR 1 (McGhee) to provide for liability even where a claimant can establish only
that the defendant negligently increased the risk of harm. Although McGhee was
implicitly criticised in Wilsher (see Section 4.6 above), its fortunes were revived
in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 (Fairchild), where it
was held that several defendants who consecutively exposed claimants to the
same risk (of mesothelioma), involving the same damage-causing agent
(asbestos fibres), could all be treated as having materially contributed to the
disease, and could thus be held jointly liable, even though it was impossible to
determine which of them was actually responsible for triggering the condition.
The subsequent decision in Barker v Corus UK Ltd [2006] 2 WLR 1027 re-
interpreted Fairchild as having been based on increased risk, and favoured
apportioned liability, but the effect of this decision was reversed by legislation
which reinstated joint liability, at least in mesothelioma cases. The application of
Fairchild to all mesothelioma cases – even those where exposure to the damage-
causing agent is both tortious and environmental – was confirmed by the
Supreme Court in Sienkiewicz v Greif (UK) Limited [2011] UKSC 10. However,

53
as the judgments in Zurich Insurance PLC UK Branch v International Energy

Group Limited [2015] UKSC 33 demonstrate, departure from the ‘but-for’ test in
the UK under Fairchild and its satellite cases has given rise to some judicial
disquiet. (Fairchild has yet to be accepted as good law in Australia, and in Amaca
v Booth [2011] HAC 53 the High Court of Australia accepted evidence that
mesothelioma could in fact develop as a result of cumulative exposure to
asbestos fibres, rather than being triggered at a single moment.)
4.8 Note that while the Wardlaw, McGhee and Fairchild principles were
developed in the context of industrial diseases contracted through exposure to
dangerous dusts and fibres, several decisions in recent years have applied the
principles in other circumstances – and most notably in medical negligence
situations.
For an application of McGhee in Singapore with respect to a hospital’s liability for

negligent failure to monitor a post-operative patient, see Surender Singh s/o
Jagdish Singh and another v Li Man Kay [2010] 1 SLR 428; [2009] SGHC
168. And for an application of Wardlaw (in the wake of McGhee and, in particular,
Fairchild) in the UK with respect to a hospital’s liability for a patient’s brain
damage, see Bailey v Ministry of Defence [2008] EWCA Civ 883; [2009] 1 WLR
1052.
E. Loss of a Chance
4.9 The standard requirement that in civil actions a claimant must establish his
case on the balance of probabilities applies equally to actions based on loss of a
chance. Under English law, if there is a less than 51% chance that the thing
which might have happened would actually have happened had it not been for
the defendant’s negligence, the claimant will fail, even if he seeks to recover not
for the whole of his damage but only for the chance which the defendant caused
him to lose. This analysis has been applied primarily in medical cases, where
actions by claimants whose chances of recovery from illness or injury have been
reduced due to the negligence of their doctors have failed when they could not

54
establish that, with proper treatment, their chances of recovery would have
exceeded 50%: Gregg v Scott [2005] UKHL 2; [2005] 2 WLR 268. Although in the
past claims for loss of chance succeeded in medical negligence cases in some
Australian states (see, eg, Rufo v Hosking [2004] NSWCA 391), the decision of
the High Court of Australia in Tabet v Gett [2010] HCA 12 established that
Australian law does not recognise the concept of loss of chance in medical
negligence proceedings.
4.10 The rule that a claimant cannot normally recover for a lost chance is
modified in cases where a defendant negligently deprives the claimant of the
opportunity to gain financial benefit or to avoid financial risk. In such cases,
damages are assessed not on the outcome which the claimant would have
sought, but on the economic opportunity which he has lost. The claimant must
prove on the balance of probabilities that he would have taken action to obtain
the relevant benefit or avoid the relevant risk. Once this has been established, he
need then only show that the chance which he has lost was real or
substantial: Asia Hotel Investments Ltd v Starwood Asia Pacific
Management Pte Ltd & Anor [2005] 1 SLR (R) 661 (which, although a contract
case, made reference to, and for the most part approved, the test applied in the
tort decision of Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR
1002).
F. Loss of a right: recovery possible if it can be shown that defendant’s

failure to advise claimant of risks inherent in treatment has deprived him of
the right to choose a more experienced doctor or defer treatment
4.11 Founded on the notion of patient autonomy, medical negligence cases

from both Australia and the UK suggest tacit recognition of a more rights-based
approach to damage. Under this approach, a claimant who cannot establish
causation using the traditional rules may nevertheless recover if he can show
that in failing to advise him of the risks inherent in treatment a defendant has
deprived him of the right either to choose a more experienced doctor: Chappel v
Hart [1998] 195 CLR 232 or to defer the date of the treatment: Chester

55
(see Section 3.11above). However, the concept of patient autonomy has yet to
find favour in Singapore: see the judgment of Ang J in Tong Seok May Joanne v
Yau Hok Mun Gordon [2012] SGHC 252.
G. Breaking the chain of causation
4.12 A defendant is potentially liable for all the foreseeable consequences of

his negligence. However, the chain of causation between the defendant’s
negligence and the damage ultimately sustained by the claimant will be broken
by a new intervening act (or novus actus interveniens), whether by the claimant
himself or by a third party: Jet Holding Ltd v Cooper Cameron (Singapore) Pte
Ltd [2006] 3 SLR (R) 769. To break the chain of causation, the act must be
something ultraneous which disturbs the sequence of events.
(1) Defendant not liable for damage subsequently sustained by claimant’s own
unreasonable response
4.13 A defendant who has already negligently caused damage to a claimant, or

who has negligently exposed a claimant to the risk of damage, will not be liable
for any damage which the claimant subsequently sustains due to his own
unreasonable response to the situation in which the defendant has placed him:
McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621.
English courts have refused to make a finding that the claimant has acted
unreasonably in a number of situations (including that where a claimant commits
suicide following injuries sustained at work: Corr v IBC Vehicles [2008] UKHL
13). Where the claimant’s response is not sufficiently unreasonable to break the
chain of causation, the defendant will remain liable: Andrea De Cruz
(see Sections 1.10 and 2.18 above). However, if pleaded, the defence of
contributory negligence may apply to reduce damages in such circumstances:
Sayers v Harlow DC [1958] 1 WLR 623.

56
4.14 Where a defendant has created a situation of danger which requires the
claimant to take immediate averting action, the defendant will be liable even if, in
the ‘agony of the moment,’ the claimant makes the wrong decision and suffers
damage which could have been avoided had he acted differently.
4.15 Where the claimant’s act is the very thing against which the defendant is
required to offer protection, the defendant will be liable for the consequences of
his negligence, however objectively unreasonable the claimant’s act may be,
although damages may be reduced to take account of the claimant’s contributory
negligence: Reeves v Metropolitan Police Commissioner [2000] 1 AC 360.
(2) A new intervening act by a third party normally breaks the chain of causation
between the defendant’s negligence and the claimant’s damage
4.16 A new intervening act by a third party will normally break the chain of
causation between the defendant’s negligence and the claimant’s damage.
However, an act will not be regarded as ‘new’ if it is sufficiently connected with
damage which has already resulted from the defendant’s negligence – eg, a
subsequent accident after a road has been blocked due to the defendant’s
negligence: Rouse v Squires [1973] QB 889, or medical negligence in the
treatment of an injury caused by the defendant’s negligence: Webb v Barclays
Bank plc and Portsmouth Hospitals NHS Trust [2001] EWCA Civ 1141. In such
circumstances, the defendant may be held partly responsible for the subsequent
damage, and the chain of causation will not be broken (although the subsequent
tortfeasor will also be partly – and possibly even primarily – liable). Where the
defendant has control over a third party, or where the third party is faced with a
dilemma created by the defendant, the chain of causation is unlikely to be broken
and the defendant will normally be liable to the claimant for the damage caused:
Home Office v Dorset Yacht Co Ltd [1970] AC 1004.

57
(3) Liability imposed if defendant’s negligence makes it very likely that the third
party will cause damage to the claimant
4.17 In other situations, a defendant will not be liable merely because his
negligence makes damage to the claimant by a third party foreseeable. Liability
will be imposed only if the defendant’s negligence makes it very likely that the
third party will cause damage to the claimant: Lamb v Camden LBC [1981] QB
625.
Case List:
(1) Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 1 SLR (R)
853 (HC) and [2007] 3 SLR (R) 782; SGCA 36
(2) Surender Singh s/o Jagdish Singh and another v Li Man Kay [2010] 1
SLR 428; [2009] SGHC 168
(3) Asia Hotel Investments Ltd v Starwood Asia Pacific Management Pte Ltd
& Anor [2005] 1 SLR (R) 661
(4) Jet Holding Ltd v Cooper Cameron (Singapore) Pte Ltd [2006] 3 SLR (R)
769

58
Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric

[2007] 3 SLR(R) 782; [2007] SGCA 36
Case Number : Civil Appeals Nos 104 and 105 of 2006
Decision Date : 26 July 2007
Coram : Chan Sek Keong CJ; V K Rajah JA; Lee Seiu Kin J
Counsel Name(s) : Cheong Yuen Hee and Lee Nyet Fah Alyssa (East Asia Law
Corporation) for the appellant in CA 104/2006 and the respondent in
CA 105/2006; Lai Yew Fei (Rajah & Tann) for the respondent in CA
104/2006 and the appellant in CA 105/2006.
Parties : Sunny Metal & Engineering Pte Ltd — Ng Khim Ming Eric
Contract – Contractual terms – Rules of construction – Architect hired by contractor signing

deed of indemnity with developer – Whether clauses in deed imposing additional duties on
architect beyond his statutory duties as qualified person under Building Control Act (Cap 29,
1999 Rev Ed)
Contract – Remedies – Damages – Causation – Distinction between causation and

remoteness – Distinction between causation in fact and causation in law – Applicable test to
determine causation in fact in contract – Whether different tests of causation in fact applying
in contract and tort
Tort – Negligence – Damages – Pure economic loss – Applicable test to determine

imposition of duty of care – Whether architect owing duty of care to developer in respect of
additional duties beyond his statutory duties as qualified person under Building Control Act
(Cap 29, 1999 Rev Ed)
Facts
The dispute in this case arose out of a construction project. The main contractor of the
project (“PMC”) failed to fulfil its contractual obligations under a third design-and-build
(“D&B”) contract with the plaintiff (“SME”) and caused numerous delays to the construction
works. As a result, SME terminated the services of PMC on 21 September 1998. As PMC

59
was subsequently liquidated in February 2000, SME commenced the present proceedings
against the defendant (“Eric Ng”), the architect employed by PMC, for breach of contractual
obligations and tortious duties owed to SME.
SME contended that cll 1 and 4 of a deed of indemnity (“the Deed”) signed between SME
and Eric Ng imposed contractual obligations on Eric Ng to undertake additional duties of
supervision and administration of contract (beyond his duties as a qualified person (“QP”)
under the Building Control Act (Cap 29, 1999 Rev Ed)), and Eric Ng had breached these
obligations. Clause 1 of the Deed provided that “[t]he Consultants warrant that they shall
exercise reasonable skill, care and diligence in the performance of their duties to the
Contractor and/or the Employer”. Clause 4 of the Deed provided that “[t]he Consultants shall
indemnify and keep indemnified the Employer from and against all claims, demands,
proceedings, damages, costs, charges and expenses arising out of or in connection with any
breach of duty, whether in contract, in tort or otherwise”. SME also contended that these
additional duties were imposed in tort on Eric Ng, and Eric Ng’s breach of these duties had
caused SME economic loss.
The trial judge found Eric Ng liable for breaches of his: (a) contractual obligations, which
arose from cl 1 (but not cl 4) of the Deed; and (b) tortious duties owed to SME. SME was
thus awarded judgment for the sum of $1,243.20, being damages of $447,473.50 less two
items of set-offs amounting to $446,230.30. SME was also allowed to recover 70% of its
costs. Both parties appealed against the trial judge’s decision; SME’s appeal was, in the
main, against the trial judge’s decision on the quantum of damages (“CA 104/2006”), while
Eric Ng’s appeal was against the trial judge’s findings on liability, damages and costs
(“CA 105/2006”).
Held, allowing the appeal in CA 105/2006 and dismissing the appeal in CA 104/2006:
(1) Since Eric Ng’s appeal concerned the issue of liability, it would be academic to
consider the further issues on the quantum of damages should liability not be established.
Thus, Eric Ng’s appeal in CA 105/2006 should be heard first: at [4].
(2) The applicable legal principles concerning the interpretation of contracts applied
equally to the interpretations of deeds. In construing a contract, the court had to give effect
to the intention of the parties as expressed. However, as against this primary emphasis on
the words as expressed in the contract, especially where the meaning of the words used

60
was not expressly clear, that meaning could not be divorced from its context. The court had
to inquire beyond the language and see what the circumstances were with reference to
which the words were used, and the object, appearing from those circumstances, which the
person using them had in view: at [27] and [28].
(3) In determining the circumstances in which the contract was entered into, it was
permissible to refer to other documents which formed part of the same transaction. Thus, the
Deed and the third D&B contract could be read together to shed light on the interpretation of
the Deed: at [30].
(4) Clause 1 was intended to be a collateral warranty which allowed SME to sue Eric Ng if
he failed to perform his obligations to PMC adequately. On this construction, Eric Ng only
agreed to properly perform the work subcontracted to him by PMC and not the additional
duties. Such a construction was consonant with the factual matrix in which the Deed was
entered into; first, Eric Ng’s duty was already clearly spelt out in cl 12A(1) of the Particular
Conditions of Contract (For Design and Build Contract) (“the Particular Conditions”), which
formed part of the third D&B contract; second, SME signed the third D&B contract a day
before Eric Ng signed the Deed and thus it would be difficult for SME to assert that it relied
on Eric Ng’s undertaking of the additional duties by way of the Deed before it entered into
the said contract. As such, cl 1 provided the contractual privity which SME would otherwise
not have had if Eric Ng was only accountable to PMC for duties owed to PMC: at [31] to [34].
(5) Clause 4 was an indemnity clause in respect of third-party claims only and its language
was plain and clear: it presupposed a claim by a third party. There was nothing in the factual
matrix, in which the Deed was entered into, to suggest that the parties intended a different
interpretation: at [37].
(6) The local jurisprudence in relation to the applicable test to determine the imposition of a
duty of care was presently unclear. For the present appeal, it sufficed that the crux of any
imposition of a duty of care was premised on there being sufficient proximity between the
parties: at [43].
(7) Adopting the sufficient proximity approach between the parties, there was insufficient
proximity between SME and Eric Ng for a duty of care to be imposed tortiously. Furthermore,
apart from the effect of the Deed, the evidence showed that there was very little, if any,
reliance by SME on Eric Ng to fulfil his alleged additional duties to SME: at [44] to [46].

61
(8) There was no reason why the “but for” test in tort could not be used in contract cases to
determine the issue of causation in fact. If the “but for” test was insufficient to lead to a just
result in some circumstances, such as where the claimant, defendant or harm was
indeterminate, either the burden of proof should be reversed such that the defendant bore
the burden of disproving cause in fact, or a “loss of chance” analysis should be adopted
whereby the causal link was dealt with on the basis of “proportionate loss” and the claimant’s
damage was effectively re-categorised as the chance of obtaining a benefit or avoiding a
loss, rather than the loss itself: at [63], [69], [71], [72] and [74].
(9) The present case did not warrant a reversal of the burden of proof, given that it
involved a one-on-one situation in which the claimant, defendant and harm were not
indeterminate. Further, SME’s claim was not framed as one that involved the loss of chance
to avoid the financial losses it allegedly suffered. The burden was on SME to prove
causation, and its failure to adduce any evidence to show that PMC would have heeded Eric
Ng’s intervention (if so exercised) meant that it had failed to show that but for Eric Ng’s
breaches, it would not have suffered its alleged losses: at [76], [78] to [80], [84] and [86].

62
Asia Hotel Investments Ltd V Starwood Asia Pacific

Management Pte Ltd and another
[2005] 1 SLR(R) 661; [2004] SGCA 37
Decision Date : 20 September 2004
Coram : Yong Pung How CJ; Chao Hick Tin JA; Judith Prakash J
Counsel Name(s) : Alvin Yeo SC, Tay Peng Cheng and Linda Wee (Wong Partnership) for
the appellant; Tan Kok Quan SC and Marina Chin (Tan Kok Quan
Partnership) for the respondents.
Parties : Asia Hotel Investments Ltd — Starwood Asia Pacific Management Pte
Ltd and another
Contract – Breach – Loss of chance – Whether respondent’s breach of contract causing

appellant to lose chance in acquiring shares sold by third party
Contract – Breach – Nominal damages – Issue before trial judge concerning liability for
breach of contract – Whether trial judge’s award of nominal damages amounting to
assessment of damages payable by respondent
Evidence – Proof of evidence – Onus of proof – Whether respondent’s breach of contract

causing appellant to lose chance in acquiring shares sold by third party – Whether evidential
burden shifting to respondent to show its actions did not cause appellant’s loss – Whether
evidential burden discharged
Evidence – Proof of evidence – Standard of proof – Loss of chance contingent upon

hypothetical action of appellant – Standard of proof required of appellant to prove own
inaction did not cause loss of chance
Evidence – Proof of evidence – Standard of proof – Loss of chance contingent upon

hypothetical action of appellant – Whether appellant having to prove hypothetical action on
balance of probabilities or show “real and measurable chance”

63
Facts
The appellant wanted to invest in Grand Pacific Hotel (“the Grand Pacific”) which was owned
by PS Development (“PSD”). PSD was, in turn, owned by the Lai Sun group of companies
(“Lai Sun”) and one Pongphan. If Lai Sun wanted to sell its shares, Pongphan (as minority
shareholder) had the right of first refusal.
In order to achieve its investment plan, the appellant had to accomplish a few interrelated
tasks. First, it had to acquire Lai Sun’s majority shares in PSD (“the Lai Sun stake”). Second,
it had to enter into arrangements with financial institutions for a loan. Third, it had to secure a
management contract with a hotel operator. Fourth, it had to obtain Pongphan’s waiver of his
right of first refusal.
On 7 November 2001, the appellant entered into a Memorandum of Understanding (“MOU”)

with Lai Sun to purchase the Lai Sun stake. The appellant had until 14 December 2001 to
enter into a contract with Lai Sun for the purchase of the shares.
The first respondent (“Starwood”) owned and managed international hotel chains. On
4 December 2001, the appellant signed a non-circumvention agreement with Starwood
under which Starwood undertook not to “solicit any source introduced by the other party” or
enter into any agreement with such a source for 12 months.
The appellant could not put in place the necessary financial arrangements to conclude the
deal before the MOU expired. A request by the appellant for an extension of the MOU was
turned down by Lai Sun because the appellant did not want to pay a fee in exchange for the
extension. There was also evidence that after the lapse of the MOU, the appellant retreated
in its negotiations with the financial institutions for a loan. Its negotiations with Starwood also
did not get very far as the appellant had asked for US$2m in key money from Starwood who
turned down the request.
After the MOU with Lai Sun lapsed, the Narula family expressed interest in the Lai Sun
stake. Lai Sun entered into an MOU with the Narulas on 5 February 2002. Under this second
MOU, the Narulas had up to 28 February 2002 to enter into a contract to purchase the Lai
Sun stake. On 19 February 2002, Lai Sun extended the second MOU indefinitely in favour of
the Narulas.

64
On or after 15 February 2002, Starwood showed a clear interest in co-operating with the
Narulas. Further contact was made between Starwood and the Narulas despite the
appellant’s e-mails to Starwood reminding Starwood of its obligations under the non-
circumvention agreement.
Eventually, the Narulas entered into an agreement with Lai Sun to purchase the Lai Sun
stake on 22 March 2002. Three days later, Starwood, through a nominee, signed a letter of
intent for the management of the Grand Pacific with the Narulas and Pongphan. The
transaction was completed on 22 May 2002 when the Narulas secured a loan from DBS Thai
Danu Bank.
At the trial below, the appellant claimed damages for loss of chance to purchase the Lai Sun
stake. The trial judge found that Starwood had breached the contract, but found that the
breach did not cause the loss. Consequently, he awarded nominal damages of $10 to the
appellant.
Held, allowing the appeal (Yong Pung How CJ dissenting):

(1) The trial judge erred in treating the appellant’s lack of progress in its negotiations with
Lai Sun and with the financial institutions as important in determining whether the loss by the
appellant of the chance to acquire the Lai Sun stake was caused by the breach. The
appellant knew that to successfully wrap up the deal to purchase the Lai Sun stake, the most
critical factor was an international hotel operator with a five-star brand. Having locked
Starwood for a year up to 4 December 2002 through the non-circumvention agreement, the
appellant knew that it had up to the same day to sew things up. Hence, the appellant was
not as anxious as it should have been when Lai Sun refused to extend the MOU and when it
knew that the Narulas would be a competitor: at [120] and [122].
(2) The objective facts showed that the Narulas needed Starwood as the operator of the
hotel. Starwood’s acts helped the Narulas to acquire the Lai Sun stake. The evidential
burden of disproving that shifted to Starwood to show that the Narulas could have proceeded
with the acquisition without the help of Starwood and Starwood did not discharge this
evidential burden: see [124] and [126].

65
(3) Once causation was established for loss of a chance, all that was needed to be shown
was that the chance which was lost was real or substantial. What would constitute a real or
substantial chance need not be proved on the balance of probabilities: at [135] and [137].
(4) Two questions should be asked and answered. First, did the breach on the part of the
defendant cause the plaintiff to lose a chance to acquire an asset or a benefit? Second, was
the chance lost a real or substantial one; or, putting it another way, was it speculative?
While, as a rule, the plaintiff always had the burden of proof, the question as to who had to
prove a particular fact, and whether in a particular fact situation the evidential burden shifted,
were matters dependent wholly on the circumstances: at [139].
(5) The trial judge did not award the nominal damages as part of an assessment of
damages, but because he took the view that the issue of causation had not been established
in the context of a trial on liability: at [143] and [144].
PER Yong Pung How CJ (dissenting):

(1) An innocent party in a breach of contract was entitled to nominal damages even if he
did not suffer loss as a result of the breach. The trial judge had awarded nominal damages
because causation had not been proved, not because he went on to assess the appellant’s
damages: at [41].
(2) The appellant’s chance of securing the Lai Sun shares depended on a combination of
four factors. Any loss of chance was contingent not just upon Starwood’s breach, but also on
the appellant’s own actions (or lack thereof) and those of Lai Sun. The important question
was to determine which test (IEbalance of probabilities or “real or measurable chance”)
applied to which of those factors: at [45].
(3) Where the alleged loss was contingent upon the hypothetical acts of the plaintiff, the
plaintiff had to prove that he would have acted in such a way as to put himself on track to
obtain the benefits of the chance. The plaintiff had to prove this on a balance of probabilities,
and not (as the appellant contended) on a mere “loss of real or measurable chance”
standard. One could not take the plaintiff’s word alone as proof of this intention. The
surrounding facts and objective evidence had to be scrutinised to see if he would have
proceeded to take that necessary step or steps to put himself on course to secure the
chance which he had allegedly lost. The fact that his claim was for a loss of chance should
not place him on a better footing compared to plaintiffs for other claims: at [60].

66
(4) By finding that “what would constitute a real or substantial chance need not be proved
on the balance of probabilities”, the majority of the court may have conflated the legal issues.
That statement was only true to the extent that it was the formula to be used when the court
had to assess the hypothetical conduct of third parties, who were not privy to the legal
proceedings. That could not be equated with the threshold required of a plaintiff when he
had to prove his case: at [63].
(5) There was ample evidence to show that the appellant had not crossed the high
threshold that the law required. Despite the appellant’s claim that it had “every intention” of
securing the deal with Lai Sun, the facts revealed a completely different picture. On the
available evidence, the appellant did not have the intention to recommence negotiations with
Lai Sun and/or the financial institutions which were necessary to proceed with the deal:
at [64] and [84].
(6) The approach of the majority of the court, that the appellant was entitled to “stay by the
sidelines” and wait till the deal with the Narulas fell through, was speculative and
unnecessarily indulgent towards the appellant. It was impossible to say that the breach had
caused the appellant to lose a real and substantial chance to acquire the Lai Sun stake
without indulging in unnecessary speculation: at [85] and [88].

67
REMOTENESS OF DAMAGE
4.18 Like duty of care, the rules on remoteness of damage effectively place an
artificial limit on the number of negligence actions which can succeed. For
consideration of the need to limit potentially indeterminate liability, see, eg, Ho
Soo Fong v Standard Chartered Bank [2007] 2 SLR (R) 181; [2007] SGCA
4 (Standard Chartered; see Section 5.6 below). The role of remoteness is to
filter out situations where – even assuming that duty, breach and causation can
all be satisfactorily established – the nature of the damage sustained makes it
unfair to make the defendant liable.
A. Type of damage must be reasonably foreseeable
(1) Old approach to remoteness: defendant liable for damage directly resulting
from negligence
4.19 Under the old approach to remoteness, a defendant was liable for any
damage which resulted directly from his negligence, no matter how unusual or
unpredictable that damage might be. However, in the Wagon Mound [1961] AC
388 the Privy Council replaced the direct consequence test with the requirement
that, in order to be recoverable, damage must be of a type which is foreseeable
in all the circumstances, and this is approach is now universally favoured: Fong
Maun Yee and Another v Yoong Weng Ho Robert [1997] 1 SLR (R) 751.
(2) New approach to remoteness: defendant liable for type of damage

foreseeable in all circumstances
4.20 The Wagon Mound test is generally accepted as being less claimant-
friendly than the direct consequence test. In order to ameliorate its harshness,
the courts when deciding whether damage is of a foreseeable type normally take
a relatively liberal view, holding that neither the manner nor the extent of the
damage is relevant to the determination. Although some courts have on occasion

68
adopted a more restrictive approach, the decision of the House of Lords in Jolley
v Sutton London Borough Council [2000] 1 WLR 1082, suggests that the liberal
approach is to be preferred. For a novel application of the Wagon Mound test in
Singapore, see the decision in Man Mohan Singh (see Section 2.6 above),
where it was held not only that there was no duty of care with respect to IVF
treatment following the deaths of the claimants’ only children in a car accident,
but also that such treatment did not constitute damage of a foreseeable type.
The Egg-shell Skull Rule
4.21 In all tort actions, a defendant must take his victim as he finds him. Under
the egg-shell skull rule, which applies to personal injuries, this concept is adapted
to allow recovery even for unforeseeable damage. The egg-shell skull rule
applies in circumstances where, due to a claimant’s innate physical susceptibility
to illness or injury, he suffers extreme and unforeseeable damage which is
triggered by the initially foreseeable damage caused by the defendant’s
negligence: Smith v Leech Brain & Co Ltd [1962] 2 QB 405. When applied with
respect to damage of an unforeseeable type (as opposed to merely an
unforeseeable extent) the egg-shell skull rule operates as an exception to the
Wagon Mound test.
B. The egg-shell skull rule: allowing recovery for unforeseeable damage
4.22 Under English law, where the claimant has an ‘egg-shell personality’ and
the damage complained of is psychological rather than physical, he need not
even show that the initial injury is of a foreseeable type, as long as some injury
was foreseeable in the circumstances: Page (see Section 2.5 above). However,
Page has been the subject of considerable criticism, and was rejected by the
Singapore Court of Appeal in Ngiam (see Section 2.5 above).

69
4.23 Under variants of the egg-shell skull rule, claimants may also seek
compensation for unforeseeable property damage (Loh Siew Keng v Seng Huat
Construction Pte Ltd [1998] SGHC 197) and for unforeseeable additional
damage sustained due to extreme impecuniosity ( Standard Chartered,
see Section 5.1 above).
Case List:
(1) Ho Soo Fong v Standard Chartered Bank [2007] 2 SLR (R) 181; [2007]
SGCA 4
(2) Fong Maun Yee and Another v Yoong Weng Ho Robert [1997] 1 SLR (R)
751
(3) Smith v Leech Brain & Co Ltd [1962] 2 QB 405

70
Fong Maun Yee and another v Yoong Weng Ho Robert

[1997] 1 SLR(R) 751; [1997] SGCA 62
Decision Date : 16 April 1997
Coram : Yong Pung How CJ; M Karthigesu JA; L P Thean JA
Counsel Name(s) : Tan Cheng Han and Lim Chuen Ren (Cheong Hoh &
Associates) for the appellants; V K Rajah and Steven Lim
(Rajah & Tann) for the respondent
Parties : Fong Maun Yee and another — Yoong Weng Ho Robert
Agency – Implied authority of agent – Warrant – Solicitor warranting to client that he

was authorised to represent company in sale of property – Authority based on forged
documents – Solicitor failing to verify with company on instructions to act – Whether
breach of warranty
Contract – Discharge – Breach – Breach of warranty of authority – Implied

representation – Whether solicitor’s conduct represented that he had authority to act
for company – Whether solicitor liable for misstatement and breach of warranty of
authority
Legal Profession – Duty of care – Negligence – Solicitor and client – Solicitor failed
to verify instructions to act for company – Whether solicitor met standard required of
a reasonably competent conveyancer – Whether solicitor breached his duty of care
and skill to client
Tort – Negligence – Breach of duty – Negligent misrepresentation – Whether

solicitor’s conduct represented that he had authority to act for company – Whether
solicitor made negligent misrepresentation – Whether misrepresentation played real
and substantial role in inducing client to act to his detriment

71
Tort – Negligence – Contributory negligence – Causation – Whether failure of client

to disclose reservations to solicitor contributed to his own loss
Facts: The second appellant was a property developer of ten years and the first
appellant was his secretary. They claimed that through the negligence and lack of
exercise of professional care, skill and diligence due to them by the respondent, a
lawyer, they had parted with $806,000 to a property agent known to both the second
appellant and the respondent. Alternatively, they asserted that the respondent had
negligently represented to them that a party (“the purported seller”) wanted to sell the
property known as 9 Ewart Park (“the property”) and appointed him as their solicitor.
They had relied on the respondent’s representation and parted with the moneys to
the property agent.
Sometime in July 1994, the property agent rang the second appellant to seek out his
interest on the property. The second appellant confirmed his interest. The property
agent faxed a letter to the second appellant confirming the telephone conversation.
In August 1994, the property agent accompanied the second appellant to view the
property from the outside. They agreed on a purchase price of $12.8m. The second
appellant agreed to pay the property agent another $1.1m in consideration for the
latter securing the option to purchase the property from the purported seller. The
property agent presented to the respondent a resolution purportedly signed by all the
directors of the purported seller resolving to sell the property and appointing the
respondent to act for the purported seller in the sale. The property agent also
showed the respondent an option purportedly signed by the managing director. The
second appellant and the respondent did not know that these documents were
forgeries. The respondent carried out a company search and confirmed to the first
and second appellants that the persons who had signed the resolution and option
were at the material time the purported seller’s directors. The second appellant
nominated the first appellant to exercise the option as his nominee. The respondent
did not obtain a letter of appointment from the purported seller. Subsequently, the
property agent disappeared with the second appellant’s monies.

72
The trial judge found that the respondent’s conduct had not fallen below the standard
of a reasonably competent conveyancer for not verifying his instructions to act for the
purported seller as there was no necessity to do so. The judge also found that the
respondent had not acted in breach of his duty to exercise professional care, skill
and diligence by acting on the basis that the documents presented to him by the
property agent were valid, and held that the losses of the appellants must lie where it
fell. The appellants appealed. The issue was whether the respondent ought to have
verified with the purported seller his instructions to act for the purported seller in the
sale of property before acknowledging to the appellants that he had been so
instructed, merely on the strength of the purported seller’s resolution and the option.
The appellant also added a new cause of action, claiming a breach of warranty of
authority, namely, that the respondent warranted to the appellants that he was
authorised to represent the purported seller in the purported sale of the property.
Held, allowing the appeal:

(1) A solicitor owed a duty to his clients to exercise care and skill as their solicitor.
To determine whether a conveyancing solicitor had acted in breach of his duties of
care and skill, the court had to consider whether his conduct has fallen below the
standard expected of a reasonably competent conveyancing solicitor. In the
circumstances of the case, where a property agent was not an officer or employee of
the seller but who held the seller’s option and was seeking to benefit from it, a
solicitor should have insisted on getting the confirmation of the seller before holding
himself out as acting for the seller in the sale of the property: at [40], [41] and [43].
(2) Negligent misrepresentation need not be the sole or decisive factor in inducing
the representee to act, but sufficed if it played a real and substantial role in causing
the representee to act to his detriment: at [52].
(3) The elements required to be proved in an action for breach of warranty were
that a person by words or conduct represented that he had authority to act on behalf
of another, and a third party was induced by such representation to act in a manner
which he would not have acted if that representation had not been made, the first-

73
mentioned person was deemed to warrant that the representation was true, and was
liable for any loss caused to such third party by a breach of that implied warranty,
even if he acted in good faith, under a mistaken belief that he had such authority.
The act of the respondent simply pointing to the resolution would be a sufficient
warranty that the purported seller really wanted to sell the property and that the
respondent represented the purported seller in the sale: at [53] and [55].
(4) Where a defendant’s liability in contract was concurrent with an identical duty in
tort, and the relevant evidence established that the cause of damage suffered by the
plaintiff was the combination of the fault on his part and the wrong doing of the
defendant, the defence of contributory negligence was available to the defendant.
Where a client suspected “a trick” by a third party and went to his lawyer to allay his
fears, but failed to disclose his concerns, and his failure to do so contributed to his
loss as in that the lawyer was not put on his guard in his dealings with the third party,
the client contributed to his own loss. In apportioning liability, the particular
relationship between plaintiff and defendant must not be overlooked; where the
relationship was one of a client and a professional, the court would take account of
the primary responsibility of the professional: at [55], [62] and [63].
[Observation: Guidelines to good conveyancing practice, such as para 1.3.1 of

Silverman, The Law Society’s Conveyancing Handbook (1993) and para 9.05 of
the The United Kingdom Law Society’s Guide to the Professional Conduct of
Solicitors (1990), should be adopted and, where possible, followed by conveyancing
practitioners, so as not to be exposed to the risk of acting without authority:
at [44] and [45].]

74
CHAPTER 5
DEFENCES TO NEGLIGENCE
5.1 All the standard tort law defences are available in actions for negligence,
but in the vast majority of cases the most relevant defences are illegality, volenti
non fit injuria and – most importantly – contributory negligence. For discussion of
all three defences, see Rashid Osman bin Abdul Razak v Abdul Muhaimanin
bin Khairuddin and another [2013] SGHC 49.
A. Illegality: where a claimant is himself a wrongdoer
(1) Illegality may also be considered at the duty stage or when determining
appropriate standard of care
5.2 Where a claimant is himself a wrongdoer, his action may be defeated on

the grounds of his illegality. Illegality is sometimes considered at the duty stage,
particularly in Australia: Miller v Miller [2011] HCA 9, and has in the past also
been regarded as relevant to determining the appropriate standard of care: Pitts
v Hunt [1991] QB 24. In the UK, cases involving joint illegal enterprises – the
main circumstance in which illegality is pleaded – are now determined by
reference to principles of causation: Joyce v O’Brien & Anor [2013] EWCA Civ
546. However, notwithstanding the various stages at which illegality is
considered, it continues to be described in common parlance as a ‘defence’.
(2) Defence normally succeeds only in cases where the claimant's conduct was
criminal in nature
5.3 In theory, illegality (also known as ex turpi causa non oritur actio) extends
to both illegal and immoral acts, although in United Project Consultants Pte Ltd
(see Section 2.13 above), the Singapore Court of Appeal stressed that a plea of
illegality would normally succeed only in cases where the claimant’s conduct was

75
criminal in nature. Since illegality provides a complete defence to a defendant

who is himself, by definition, a wrongdoer, the courts take a cautious approach
when holding that it is applicable. Although the majority of cases in which
illegality is pleaded successfully involve joint illegal enterprises, in the UK
illegality has also defeated claims in cases of discrete wrongs where the claimant
has committed a serious criminal offence (such as taking a life): see, eg, Clunis v
Camden and Islington Health Authority [1998] QB 978 and Gray v Thames Trains
[2009] UKHL 33; [2009] 3 WLR 167. In Singapore, the possibility of illegality
being pleaded outside joint illegal enterprise cases has also been recognized in
United Project Consultants (see Section 2.13 above).
(3) Defence will not succeed where wrong is insufficiently connected with
claimant’s damage, or where damage defendant causes is disproportionate to
the claimant’s wrong
5.4 Where the claimant’s wrong is insufficiently connected with his damage, or
where the damage which the defendant causes is disproportionate to the
claimant’s wrong, an illegality plea is unlikely to succeed. In the latter situation,
however, the defence of contributory negligence may be applicable: Revill v
Newbery [1996].
B. Consent: where claimant either expressly or implicitly accepts the risk of

harm associated with a defendant’s conduct
(1) Consent is a full defence pleaded successfully only in extreme situations
5.5 Where a claimant either expressly or implicitly accepts the risk of harm
associated with a defendant’s conduct, his claim may be defeated by the defence
of volenti non fit injuria. However, since, like illegality, volenti is a full defence, the
courts are generally unwilling to allow it to defeat a claim: Administrators of the
Estate of Tan Ah Hock (deceased) v Low Beng Hai and another [1994]
SGHC 88 (Estate of Tan Ah Hock, see Section 6.13 below), and it is pleaded
successfully only in extreme situations.

76
(2) Claimant must be shown to have had full knowledge and understanding of the
risk involved and freely agreed to assume the very risk that materialized
5.6 For the defence to succeed, it must be shown that the claimant had full
knowledge and understanding of the risk involved, that he freely agreed to
assume that risk, and that the risk to which he consented was the one which
materialized. Only rarely does the defence succeed in cases involving
employees: ICI v Shatwell [1965] AC 656, and for policy reasons it is never
available in actions brought by rescuers.
(3) Defence outlawed by legislation in cases of road traffic accidents
5.7 Where road traffic accidents are concerned, the defence has been
outlawed by legislation: see the Motor Vehicles (Third Party Risks and
Compensation) Act (Cap.189 2000 Rev Ed). It may be pleaded in claims
involving other types of vehicles (such as light aircraft), but it succeeds only in
cases where the risks are substantial and the claimant’s conduct has been
particularly cavalier: Morris v Murray [1991] 2 QB 6.
(4) Consent and risks assumed when participating in sporting activities
5.8 Volenti may be relevant to the risks assumed when participating in

sporting activities, although in relation to risks faced by spectators a better
approach is probably to treat the situation as one in which a lower standard of
care is applicable: Wooldridge v Sumner [1963] 2 QB 43 (see Section
3.5 above). For the interplay between duty of care and volenti in determining the
liability of regulators and referees to participants in sports, see, eg, Watson v
British Boxing Board of Control [2001] QB 1134 and Vowles v Evans & The
Welsh Rugby Union Ltd [2003] 1 WLR 1607.

77
(5) Unfair Contract Terms Act applies in a business context where defendant
seeks to exclude liability for negligence by express agreement or by notice
5.9 In a business context, a defendant who seeks to exclude liability for

negligence by an express agreement or by notice is subject to the provisions of
the Unfair Contract Terms Act (Cap 396, 1994 Rev Ed). Under section 2(1) it is
impossible to exclude liability for death or personal injury attributable to
negligence, and under section 2(2) purported exclusion of liability for negligence
in other situations must pass the test of reasonableness.
C. Contributory negligence: where claimant suffers damage as a result

partly of his own fault and partly of the fault of another or others
(1) Partial defence where damages are reduced to reflect claimant’s share of
responsibility for harm sustained.
5.10 Historically, contributory negligence was a complete defence, but under

the Contributory Negligence and Personal Injuries Act (Cap 54, 2002 Rev Ed) a
claimant who suffers damage as a result partly of his own fault and partly of the
fault of another or others no longer has his claim defeated. Instead, his damages
are reduced to reflect his share of the responsibility for the harm which he has
sustained.
(2) Contributory negligence established where claimant fails to take reasonable

care of himself according to the standards of the reasonable person
5.11 The standard of care is objective, so a claimant will be contributorily

negligent if he fails to take reasonable care of himself according to the standards
of the reasonable person. However, as with actions in the tort of negligence
proper, lower standards of care apply in some situations, and less is expected in
terms of self-preservation on the part of child claimants: Gough v Thorne [1966] 1
WLR 1387 and by claimants faced with situations of emergency: Jones v Boyce
(1816) 1 Stark 493. Where a claimant has not himself been negligent, his

78
damages will not normally be reduced merely because others have failed to take
adequate care of him. One exception is where the claimant is an employer suing
a defendant for damage caused to his property at a time when that property was
in the care and control of his employee. In such circumstances, damages will be
reduced to reflect any contributory negligence on the part of the employee.
(3) Claimant’s negligence results in reduction of damages only where it is

causally relevant to the damage sustained
5.12 A claimant’s negligence will result in a reduction of damages only where it

is causally relevant to the damage he has sustained. Where his negligence
contributes to the accident itself (as where he crosses a road without using a
pedestrian crossing) his damages may be reduced substantially: Ng Weng
Cheong v Soh Oh Loo & Anor [1993] 1 SLR (R) 532. But where his negligence
contributes only to the extent of his damage (as where he merely fails to wear a
seat belt or crash helmet) the reduction in damages is normally small: Froom v
Butcher [1976] QB 286.
(4) Damages reduced by one half where the claimant and the defendant are
equally to blame
5.13 In situations where the claimant and the defendant are equally to blame,
the claimant’s damages are reduced by one half: Administrators of the Estate
of Tan Ah Hock (see Section 6.5 above). This is also the case where there are
multiple defendants, and the claimant’s fault is equal to that of the defendants:
Fitzgerald v Lane [1988] 3 WLR 365. It is generally (although not universally)
accepted that it would be ‘logically unsupportable’ to reduce damages by 100%
under the Contributory Negligence Act: see, eg, the decision of the Court of
Appeal in Pitts v Hunt [1991] QB 24.

79
Case List:
(1) Asnah bin Ibrahim v bte Ab Rahman v Li Jianlin [2016] 2 SLR 944
(2) Rashid Osman bin Abdul Razak v Abdul Muhaimanin bin Khairuddin
and another [2013] SGHC 49
(3) Ng Weng Cheong v Soh Oh Loo & Anor [1993] 1 SLR (R) 532
(4) Administrators of the Estate of Tan Ah Hock (deceased) v Low Beng Hai
and another [1994] SGHC 88
CREDITS TO: Margaret Fordham

Associate Professor

80
Asnah bte Ab Rahman v Li Jianlin

[2016] 2 SLR 944; [2016] SGCA 16
Decision Date : 17 March 2016
Coram : Sundaresh Menon CJ; Chao Hick Tin JA; Quentin Loh J
Counsel Name(s) : Anthony Wee (United Legal Alliance LLC) for the appellant; Liew Hwee
Tong Eric and Renganathan Shankar (Gabriel Law Corporation) for the
respondent.
Parties : Asnah Bte Ab Rahman — Li Jianlin
Tort – Negligence – Contributory negligence – Pedestrian walking along signalised

pedestrian crossing on dual-carriageway with lights in his favour – Whether pedestrian had
duty to remain attentive – Apportionment of liability under s 3(1) Contributory and Personal
Injuries Act (Cap 54, 2002 Rev Ed) – Relevance of r 22 Highway Code (Cap 276, R 11,
1990 Rev Ed) – Section 3(1) Contributory and Personal Injuries Act (Cap 54, 2002 Rev
Ed) – Rule 22 Highway Code (Cap 276, R 11, 1990 Rev Ed)
Facts
An accident between a taxi and a pedestrian took place along a signalised pedestrian
crossing. The pedestrian (“the Respondent”) was knocked down when the pedestrian signal
was in his favour. The taxi-driver (“the Appellant”) conceded on primary liability but advanced
the partial defence of contributory negligence on the ground that the Respondent could have
avoided the accident by remaining attentive during his crossing.
The Respondent was a 21-year-old male National Serviceman. The Appellant was a taxi-
driver. The accident took place at about 10.00pm. At the time of the accident, the weather
was fine, the road surface was dry, the traffic flow was light and the visibility was clear.
The pedestrian crossing along which the accident occurred was situated on a dual-
carriageway road, with two lanes of traffic going in opposite directions. Two features of the
dual-carriageway were noteworthy. First, the road on which the Appellant was travelling

81
curved to the left 150m before straightening itself about 60–70m from the pedestrian
crossing. Second, the two carriageways were divided by a 1.4m high metal barricade
erected on a raised concrete base. The barricade lowered to 0.9m about 18m away from the
crossing.
The Respondent had made it across the first half of the crossing without incident. Just as he
took his second or third step into the second half of the crossing he was knocked down by
the taxi driven by the Appellant. At the material time, it was not contested that the taxi was
travelling at about 55km/h (as admitted by the Appellant).
The collision caused severe head and hip injuries to the Respondent. The concussion he
suffered impaired his ability to recall details of the accident, save for the fact that he had
booked out of camp at about 9.00pm that night. At trial, counsel for the Appellant only posed
two questions to the Respondent pertaining to the clothes he was wearing on the day of the
accident, to which the Respondent could not answer.
The trial below was bifurcated. Deciding on the question of liability, the High Court judge
(“the Judge”) found that the Respondent was not liable in contributory negligence.
Held, allowing the appeal (Sundaresh Menon CJ dissenting):

Per Chao Hick Tin JA and Quentin Loh J:
(1) The defence of contributory negligence modulated a victim’s right to recover damages
from a tortfeasor by the extent to which he could himself have prevented the accident from
happening. In the prevailing circumstances of each case, a person would be guilty of
contributory negligence if he ought to have objectively foreseen that his failure to act
prudently could result in hurting himself and accordingly failed to take reasonable measures
to guard against that foreseeable harm. The standard of care expected of the claimant was
measured against a person of ordinary prudence. In Singapore, the defence had been
statutorily enshrined under s 3(1) of the Contributory and Personal Injuries Act (Cap 54,
2002 Rev Ed): at [18] to [24].
(2) Pedestrians should not, by reason of the success we had achieved in promoting road
safety, be lulled into a sense of complacency when they utilised pedestrian crossings.
Humans were not infallible; road accidents did occur. Accidents could be caused by
inattentive motorists labouring from lapses of attention due to fatigue or distractions or even
motorists deliberately running the red light along quiet roads at night, thinking that no harm

82
would ensue. The risk of motorists running red lights was borne out by statistics. While the
statistics did not inform us of how many amongst the motorists who run red lights did so after
the pedestrian signal had turned green for a number of seconds, they should still be given
weight: at [30] to [34].
(3) Pedestrians had a statutory right of way when using pedestrian crossings. But a
violation of a victim’s rights should not preclude the tortfeasor from raising contributory
negligence. In addition, requiring pedestrians to exercise care for their safety was not
inconsistent with the institution of pedestrian crossings: at [36] to [38].
(4) Tort law exacted a degree of care commensurate with the danger the situation
presented. The degree of care demanded of a person by an occasion would be dependent
upon a consideration of: (a) the likelihood of injury; (b) the gravity of injury; and (c) the cost
of guarding against such risks. Given the foreseeable risk of motorists running red lights and
the severe injuries road accidents were capable of inflicting on the unguarded human being,
pedestrians ought to exercise some care for their safety. A proper lookout should ordinarily
take no more than a split-second: at [39] to [41], and [60].
(5) The need and extent of the preventive measures which ought to be taken by the
pedestrian was stipulated in the Highway Code (Cap 276, R 11, 1990 Rev Ed) (“Highway
Code”). Rule 22 of the Highway Code required pedestrians to look out for errant motorists at
signalised pedestrian crossings before entering the crossing. The duty was not contingent on
how long the green man had turned on, as was apparent from the wording of r 22.
Accordingly, if the pedestrian entered a crossing without having satisfied himself that the
vehicles had come to a stop or were coming to a stop, he should remain attentive during his
crossing: at [42] to [54].
(6) Bailey v Geddes [1938] 1 KB 156, which stood for the proposition that contributory
negligence could never apply to a claimant pedestrian within a pedestrian crossing, was not
applicable for two reasons. First, Bailey v Geddes was decided before the defence of
contributory negligence was statutorily codified. Second, its holding had been circumscribed
by subsequent English decisions: at [69] to [73].
(7) The proposition derived from the English cases that the pedestrian’s duty to keep a
lookout ceased once he entered the crossing should only be applicable where the
pedestrian had satisfied himself that it was safe to leave the footway: at [74].

83
(8) Safety islands had the effect of separating a single crossing into two, by virtue of r 20 of
the Highway Code. They were installed to inform the pedestrian to check again for
approaching traffic before leaving the “zone of safety”. The centre-divider in question
appeared to have been broad enough for a few people to obtain shelter. However, since the
exact dimensions of the centre-divider were unknown, the Respondent ought not be found
contributorily negligent solely because of its presence: at [77] to [89].
(9) Dual-carriageways were not exempted from r 22 of the Highway Code. Accordingly,
pedestrians had to ensure that vehicles coming from both sides of the dual-carriageway had
either stopped or were coming to a stop before they could leave the footway. If they were
unable to obtain such assurance, they ought to remain attentive during their crossing. The
presence of the metal barricade, the bend of the road and the impairment of the pedestrian’s
visibility at night, were all factors that would have affected the Respondent’s assessment of
vehicular traffic on the second half of the road. Accordingly, the Respondent should have
checked again for approaching traffic before he stepped onto the second half of the road:
at [90] to [98].
(10) The English cases referred to by the Respondent were of little assistance primarily
because they were distinguishable: at [104] to [110].
(11) On a balance of probabilities, the Respondent did not check for approaching traffic
before he left the centre-divider. Even if he did, he clearly failed to make a reasonable
assessment of the risks posed by the approaching vehicle: at [112] to [114].
(12) The rule in Browne v Dunn (1893) 6 R 7 was not a rigid, technical rule. Not every
single point had to be put to the witness. The Appellant’s failure to put her case to the
Respondent did not violate the mischief targeted by the rule because the respondent had
already said that he could not remember the accident, and the loss of memory was because
of post-concussion symptoms: at [115].
(13) To reflect the greater causative potency and blameworthiness of the Appellant’s
atrocious driving, the Respondent’s entitlement to damages was reduced by a modest 15%:
at [118] and [120].

84
Per Sundaresh Menon CJ (dissenting):

[Editorial note: Where a case was treated differently, or discussed only, in the dissenting
judgment, it is indicated with an asterisk after the annotation in the “Case(s) referred to”
below.]
(14) The nature, extent and degree of a road user’s responsibility to prevent accidents
called for a fact-sensitive inquiry that had to have regard separately to the foreseeability of
the risk that had materialised and the viability of the measure that could be taken to guard
against the risk. To focus solely on the measures the victim could have taken to prevent the
accident would entail missing a step in the reasoning: namely, was it reasonable to expect
the Respondent to guard against the particular type of conduct that caused the damage. It
was only when that question was answered in the affirmative, that one then went on to
consider whether preventive steps should reasonably have been taken: at [139] and [140].
(15) The risk that materialised and which the court was obliged to assess was whether it
was reasonable for the Respondent to be expected to guard against a driver, not so much
squeezing past a traffic light, but being wholly indifferent to it: at [143] and [144].
(16) The duty to guard against the risk of being knocked down by a motorist at a
pedestrian crossing controlled by traffic lights was greatly attenuated by the passage of time
after the lights had turned in favour of the Respondent and against vehicular traffic:
at [146] and [147].
(17) At 55km/h (being the Appellant’s admitted speed) and 68km/h (being the high end of
the Appellant’s expert’s estimate) the traffic lights would have been visible to the Appellant
for between eight and ten seconds prior to the collision. To remain oblivious to the lights for
that length of time went far beyond anything that could fairly be described as a lapse; it was
so egregious that it was dangerous to other road users. It was unsatisfactory that a road
user who was acting entirely within and in accordance with the law should be subjected to a
duty to guard against the dangerous and (not merely careless) conduct of others: at [150].
(18) The statistics relied upon by the majority did not provide a sufficient basis for
concluding that the possibility of a pedestrian being knocked down in the circumstances of
this case was real or reasonably foreseeable. The Appellant wholly failed to apprehend that
there were any lights at all and so drove past a red light eight or so seconds after it had

85
turned against her. The statistics did not bear out the frequency of this type of collision
because they did not differentiate between the various types of situations where a motorist
unlawfully drove through a red light. The ones involving collisions with pedestrians crossing
with the lights already in their favour for some time had to involve a miniscule fraction of
those statistics: at [152].
(19) The common experience suggested that motorists squeezing past traffic lights a
second (or two or three) after they change was sufficiently common. But that was of a wholly
different nature than the risk in this case which appeared to be a much rarer occurrence:
at [153].
(20) Rule 22 on its express terms exhorted pedestrians to wait on footways until traffic, in
front of which they intended to cross, had come to a standstill. This rule enjoined pedestrians
to check to ensure vehicles had come to a standstill before entering a pedestrian crossing
and was targeted at a situation where the traffic light had just turned red. But beyond that,
r 22 could not be invoked as a basis for holding that the possibility of a pedestrian being
knocked down a considerable time after the traffic lights had turned red, as was the case
here, was a real one: at [155].
(21) The majority’s observation that Parliament could have well included words such as
“when the green man appears” at the beginning of r 22 if the legislative intention had been to
limit the application of the rule to situations where the traffic light had turned red against
traffic for just a short while was not persuasive because: (a) the words used spoke of a
footway which was commonly found at the edge of a road; (b) there were no parliamentary
materials as far as the court was aware which supported the majority’s point; and (c) it was
equally plausible that Parliament did not include these words precisely because r 22 was to
apply where there were centre-dividers with footways, in which case a pedestrian should
wait and check once more: at [156].
(22) There was nothing akin to a centre refuge here. Centre refuges had to be sufficiently
wide so as to afford pedestrians a safe place to stop and look before continuing to cross.
Here, the width of the centre-divider was so small that it would barely cover a single person’s
width: at [157] and [159].
(23) The majority’s alternative contention that r 22 was nonetheless implicated because
the Respondent ought not to have started crossing until he was satisfied that the traffic he

86
intended to cross in front of had come to stop overlooked the fact that if the Respondent
started crossing eight or so seconds before the collision, then using a speed of either
55km/h or 68km/h, the Appellant’s taxi would have been between 122.2m and 151.1m away.
To suggest that a pedestrian could not start crossing when a vehicle was noticed to be that
distance away would make life unbearable for pedestrians: at [161].
(24) The view that the Respondent was not contributorily negligent was supported by the
English cases cited by the Respondent. The cases finding in favour of contributory
negligence cited by the majority were distinguishable: at [162] to [170], and [171] to [173].
(25) The presence of the metal barricade, the bend of the road and the impairment of the
pedestrian’s visibility at night did not bear weight. If the Respondent had no duty to guard
against the risk of motorists who were oblivious to the presence of traffic lights, then this
could not change by reason of those considerations. There were also more specific
objections: at [175].
(26) It could not be safely said that it was “evident” that the Respondent did not check for
vehicular traffic at the road’s centre. The majority’s ruling created a virtual rule that any
pedestrian who was struck down at a pedestrian crossing would almost inevitably be found
contributorily negligent. In addition, there were also other possible explanations for the
collision which did not imply fault on the Respondent’s part: at [177] and [180].
[Observation: Rule 22 was silent on the pedestrian’s duty in relation to pedestrian crossings
controlled by police officers. The majority expressed no conclusive view on this scenario
since it did not concern them on the present facts: at [63].
The question of whether selected classes of pedestrians such as the wheelchair bound or
very young children should be subject to the standard of care expected of an ordinary
pedestrian did not arise for determination on the facts. It was left to be considered at a more
appropriate juncture in the future: at [116].
The appropriate duty of care expected of pedestrians was heavily driven by public policy
considerations. Courts were not well-placed to deal with policy issues, and could only derive
such policies from what was prescribed in the Highway Code: at [121].]

87
Ng Weng Cheong v Soh Oh Loo and another

[1993] 1 SLR(R) 532; [1993] SGCA 22
Decision Date : 31 March 1993
Coram : S Rajendran J; Warren L H Khoo J; M Karthigesu J
Counsel Name(s) : V Ramakrishnan (V Ramakrishnan & Co) for the appellant; Tim Oei
(Khattar Wong & Partners) for the respondents.
Parties : Ng Weng Cheong — Soh Oh Loo and another
Tort – Negligence – Duty of care – Pedestrian knocked down by bus while attempting to
cross pedestrian crossing when light against him – Whether bus driver exonerated from duty
under rr 5 and 7 Road Traffic (Pedestrian Crossings) Rules 1982 (S 295/1982) – Whether
pedestrian contributorily negligent – Rules 5, 6 and 7 Road Traffic (Pedestrian Crossings)
Rules 1982 (S 295/1982)
Facts
The appellant (“Ng”) was knocked down by an SBS bus driven by the first respondent
(“Soh”), who was servant and agent of the second respondent (“SBS”). Ng claimed damages
for personal injuries sustained. Ng attempted to cross a pedestrian crossing at the mouth of
a three-lane carriageway when the “red man” had come on. However, the right turning light
for vehicles in the extreme right lane was green, thus allowing for vehicles in that lane to
enter the junction and to turn right. Soh was on the extreme right lane as he approached the
junction and intended to make a right turn. Because he was blocked by vehicles in the lanes
to his left, Soh could not see Ng until he was about 10 to 12 ft from the stop line and as a
result was unable to avoid the accident.
The High Court held that Soh was not negligent as it was an offence for a pedestrian to
cross when the pedestrian crossing light was against him and a driver had a right to
presume that his way was clear when the traffic light was in his favour and the pedestrian
crossing light was red. Ng appealed.

88
Held, allowing the appeal:

(1) It was incumbent upon the driver of a vehicle to approach any pedestrian crossing in
the manner required by r 5 of the Road Traffic (Pedestrian Crossings) Rules 1982
(S 295/1982) (“the Rules”) and to keep a proper lookout to see that there were no
pedestrians on it or about to enter it. Rule 7 accorded precedence to a pedestrian who “is
about to enter or has entered the crossing”, notwithstanding that the driver “may have
already received a signal to proceed”. At controlled crossings, a driver was not exonerated
from his duty under r 5 and r 7 by the fact that the pedestrian started crossing when the light
was against the pedestrian. It was not the driver’s concern whether the pedestrian had
committed an offence by going against the light in getting on to the crossing:
at [22], [26], [27] and [38].
(2) However, the fact that it was an offence for a pedestrian to cross a controlled crossing
against light signals meant that drivers of vehicles, in general, had less reason to anticipate
such occurrences, although such occurrences could not in reality be ruled out altogether. For
the pedestrian, it also meant that the danger inherent in such behaviour was that much
greater. A person who crossed a light-controlled crossing in disobedience of a light signal
applicable to him thus assumed a high degree of contributory negligence: at [39].
(3) On the facts, Soh was in breach of rr 5 and 7 of the Rules. There was no indication that
Soh had slowed down at all when approaching the junction, even though his view of the
pedestrian crossing was partially blocked. He clearly dismissed totally the possibility of
anyone being on the crossing. Nevertheless, Ng was quite heedless of his own safety in
crossing the road against the lights. Hence, blame was apportioned in the proportion of 70%
to 30% in favour of Soh: at [42] to [45].

89
CHAPTER 6
ECONOMIC TORTS I
SECTION 1 INTRODUCTION
A. Torts concerning harm to economic interests and the protection of

personal reputation
6.1 This section outlines the law in relation to two groups of torts: the first
protects a person against harm to his trade and economic interests resulting from
the deliberate acts of another; the second, comprising defamation and malicious
falsehood, is concerned with the protection of one’s reputation.
B. Local modifications to principles of English law
6.2 In Singapore, the law on economic torts and defamation has its origins in
English common law. Although there is now a substantial body of local case law
on these subjects, and notwithstanding the dissimilar political and economic
climates of the two jurisdictions, the key legal principles as applied in Singapore
have remained largely similar to those in English law. That said, there have been,
in Singapore, important legislative developments affecting both these areas.
Thus, particular aspects of the common law on defamation have been modified
by the Defamation Act (Cap 75, 1985 Rev Ed), and the extent to which the law
on economic torts regulates market competition must now be understood in the
light of the regulatory framework set out in the Competition Act 2004 (Cap 50B,
2006 Rev Ed).

90
SECTION 2 INDUCING BREACH OF CONTRACT
A. Cause of action: where one party induces another to breach a

contractual obligation owed to a third-party
6.3 If A knows that B owes a contractual obligation to C, and procures or

induces B to breach the said obligation such that C incurs damage as a result, A
is liable to C for inducing the breach of B’s contract obligation to C.
(1) Mental element: knowledge of contractual relationship and intention to induce

breach
6.4 To establish this cause of action, it must be proven that (a) A knows of the
existence of B’s contractual relationship with C, and (b) that A has intended the
breach of the obligation. A’s knowledge may be inferred from surrounding
circumstances, and need not relate to the precise terms of the contract.
(2) Inducement must be a direct and effective cause of breach
6.5 Further, A’s action must be a direct and effective cause of B’s breach. This
requirement is most obviously satisfied when A directly persuades B, whether
with the promise of reward or incentives or otherwise, to commit the relevant
breach.
(3) Essential for inducement to result in breach
6.6 It is essential that A’s inducement results in the breach of B’s contractual
undertaking to C. This does not, however, require proof that the breach in
question results in any liability. Thus, it will suffice if it is proven that B is in
breach of his contractual obligation, but does not in fact incur any liability by
reason, for instance, of an operative exemption clause.

91
(4) Damage must have been sustained due to breach
6.7 The aggrieved party must have sustained damage as a result of the
breach of contract. Such damage may be inferred from the surrounding
circumstances.
B. Defence of justification operational in exceptional circumstances
6.8 A person’s interference with another’s contract may be justified in

exceptional circumstances. The precise scope of this defence is unclear, but it is
generally thought to be a narrow defence which can only be founded upon a
careful examination of all the facts. Some instances in which the defence has
succeeded include those where the interference is the inevitable result of
asserting a pre-existing legal right, or where it is necessary for the protection of
public morals.
C. Tort extended to inducing breach of other non-contractual obligations
6.9 The tort of inducing breach of contract has been extended to other types
of enforceable obligations. Thus, a person who induces another to breach a
statutory or an equitable obligation may also commit an actionable tort.
SECTION 3 INTIMIDATION
A. Cause of action: where threat of unlawful conduct is made to prevent

another’s conduct, resulting in harm to a third-party
6.10 If A makes a threat of unlawful conduct against B so as to prevent B from

doing that which he is entitled to do, resulting in harm to C, A is liable to C.

92
(1) Threat must relate to unlawful conduct and must be compelling
6.11 The threat made by A must have the effect of compelling B to comply with
A’s wishes so as to avoid the unpleasant consequences threatened by A. It is
insufficient if A merely makes idle abuses of which B takes little or no notice. The
threat must also relate to unlawful conduct, such as the commission of a crime,
tort, or contractual breach.
(2) Tort actionable only where aggrieved party suffers damage due to threat
6.12 This tort is only actionable where the aggrieved party, C, has suffered
damage as a result of A’s threat. Such damage includes all intended losses as
well as damages that are not too remote.
B. Tort actionable in both two-and three-party interference
6.13 It is generally accepted that the tort of intimidation may take the form of
either a two or three-party interference. In a case involving three parties, A
threatens B with a view to cause loss to C. Where there are only two parties, A
makes an unlawful threat against B and cause loss to B. However, the imposition
of tortious liability in this latter situation is more controversial because it has the
tendency to obscure the distinction between the tort of intimidation and the
threatened unlawful act.

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SECTION 4 CONSPIRACY
A. Cause of action: where two or more persons agree on course of conduct

to harm another
6.14 Two or more persons commit the tort of conspiracy if they agree on a
course of conduct to harm another. A conspiracy to commit an illegal act may
also amount to a criminal offence. In the civil sphere, the tort of conspiracy may
either be a straightforward conspiracy to injure, or a conspiracy using unlawful
means.
B. Conspiracy to injure
(1) Conspirators must have shared a common design and acted or taken step to
further that design
6.15 The agreement or combination between the alleged conspirators is a

rudimentary element of the tort of conspiracy to injure. Whether such agreement
exists is largely a question of fact. The agreement may either be express or of a
tacit nature. However, the mere proof of an agreement is insufficient as it has to
be demonstrated that each of the conspirators has acted, or taken some step to
further their common design.
(2) Intention to injure must be the predominant purpose of conspirators’ actions
6.16 The conspirators’ intention to harm the victim is the gist of this tort. Thus, it
is necessary to prove that such ill-intent is the predominant purpose with which
the conspirators acted. It follows that where it can be proven that the design of
the alleged conspirators is motivated by some legitimate purpose (such as the
protection of their own economic interests), the tort is not made out even if injury
to the victim is an unavoidable consequence of the scheme.

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(3) Damage: victim must have suffered pecuniary loss
6.17 The victim of the conspiracy has to prove that he has suffered pecuniary
loss. It is generally sufficient if such losses can be inferred from the surrounding
circumstances.
C. Conspiracy by unlawful means
(1) Tort characterised by use of unlawful means and intention to harm need not
be predominant motive
6.18 A conspiracy using unlawful means is unlike the simple conspiracy to

injure in two ways: first, it is characterised by the use of unlawful means; and
secondly, while it requires proof of the conspirators’ intention to harm the victim,
such intention does not have to be their predominant motive.
(2) Unlawful means: concept as yet unsettled but may encompass any illegality
that is an effective link between act of combination and injury
6.19 It is reasonably clear that an agreement between two or more persons to

commit a tort (such as intimidation, or procuring a breach of contract) would
amount to a conspiracy by unlawful means. A scheme to commit crimes that
involve the use of violence or fraud or dishonesty would also clearly suffice.
Although it is as yet unsettled, there are judicial authorities that suggest that the
unlawful means need not be independently actionable as a civil wrong
(see Beckkett Pte Ltd v Deutsche Bank AG [2009] 3 SLR(R) 452 and EFT
Holding, Inc v Marinteknik Shipbuilders (S) Pte Ltd [2014] 1 SLR 860 at [91])
On this view, "unlawful means" is construed broadly so that any illegality that
contributes to the causative link between the act of combination and the
claimant's injury may suffice.

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CHAPTER 7
ECONOMIC TORTS II
SECTION 5 UNLAWFUL INTERFERENCE WITH TRADE
A. Cause of action: where a persons intentionally injures another by

employing unlawful means against an intermediary
7.1 At common law, A commits a tort against B if A (a) commits an unlawful

act affecting a third party C (b) with the intention to injure B and (c) such conduct
does in fact result in damage to B. Unlike the tort of inducing breach of contract,
this tort is not primarily concerned with the protection of pre-existing legal
obligations, but with proscribing indirect harm inflicted through the use of unlawful
means on an intermediary.
B. Mental element: intention must be to injure victim through conduct
7.2 The mental element of this tort appears to be a narrow one: the alleged
tortfeasor must have intended to injure the victim as an end in itself or as a
means to an end. The fact that the alleged tortfeasor’s (unlawful) conduct would
inevitably injure the victim is not, by itself, sufficient.
C. Unlawful means
(1) Unlawful means must be directed at third-party intermediary but unclear as to

whether it has to be independently actionable

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7.3 Since the House of Lords decision in OBG v Allan [2008] 1 AC 1, it is

reasonably clear that the illegality must have been applied to a third party
intermediary with the result of causing damage to the plaintiff. However, it is
unclear whether the illegality must also be separately actionable as a civil wrong.
The alternative view is that any legal wrong, even one that is not independently
actionable, will suffice so long as it is an effective causative agent of the victim's
loss. A number of authorities from other leading jurisdictions (see OBG v Allan
[2008] 1 AC 1 and AI Enterprises Ltd v Bram Enterprises Ltd [2014] SCC 12)
have adopted the former view – that “unlawful means” should be restricted to
independently actionable wrongs. In Singapore, however, our courts have yet to
make any definitive pronouncement in this regard.
(2) Breach of statutory duty: tort generally non-actionable unless claimant falls
within class of persons that statute was imposed to benefit, or has suffered
special damage
7.4 As a general rule, statutory duties enforceable by way of criminal

prosecution are presumed to be enforceable only in that manner. There are,
however, two exceptional situations in which such statutory breaches could
constitute ‘unlawful means’ for purposes of civil actions. First, if a statutory
provision is, on its true construction, imposed for the benefit of a class of
persons, a complainant who falls within that class may plead that his or her
interests have been unlawfully interfered with. Secondly, where a statutory
provision creates a public right, a complainant may enforce the breach of the
provision in a civil suit if he or she has suffered special damage over and above
that suffered by the public at large.

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SECTION 6 MALICIOUS FALSEHOOD
A. Cause of action: where two or more persons agree on course of conduct

to harm another
7.5 A person is liable for malicious falsehood if he or she maliciously makes

false representations in respect of another with a view to injure that person’s
goodwill or economic reputation.
B. Elements of the tort
7.6 The tort of malicious falsehood may, in some respects, overlap with the
tort of defamation (see below). However, these two torts are clearly distinct. In
particular, the tort of malicious falsehood is founded on (a) false representations,
(b) malicious motives, and (c) the complainant’s incurrence of special damage,
but none of these is a necessary element of the tort of defamation.
(1) Falsehood: false statement is made in respect of complainant’s person,

property or trade
7.7 The element of falsehood is generally satisfied by proving that the

tortfeasor has made a false statement in respect of the complainant’s person,
property or trade. The offending representation may be verbal, written, or implied
by conduct. It must also have been published to third persons (other than the
complainant).
(2) Malice: evidence of personal ill-will and spite, or intention to injure, is

sufficient
7.8 Malice may be established by proof that the maker of a statement knows
of the untruth of a statement, or is reckless as to its truth. Mere negligence is not

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malice, but evidence of personal ill-will and spite, or an intention to injure, would
suffice.
(3) Special damage: generally required except where false statements are in
writing or permanent form and calculated to cause pecuniary injury
7.9 At common law, the tort of malicious falsehood is only actionable upon
proof that the complainant has sustained special damage. This may require, for
instance, evidence of quantifiable losses arising from loss of sales or asset
devaluation. Note, however, that this aspect of the common law has been
modified by section 6 of the Defamation Act (Cap 75, 1985 Rev Ed), such that
the proof of special damage may be dispensed with if the false statements are
published in writing or permanent form, and are calculated to cause pecuniary
injury to the complainant in respect of his or her office, profession, calling, trade
or business.
SECTION 7 DEFAMATION
A. Introduction
(1) Competing interests: protection of personal reputation and upholding rights of

free speech and public communication
7.10 The objectives of the tort of defamation are, on the one hand, to protect
personal reputation and, on the other, to ensure that the right of free speech and
public communication are not unduly compromised. Within the tort of defamation,
these competing interests and rights have to be judiciously balanced.

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(2) Two forms: libel and slander
7.11 There are two forms of defamation: libel (words in permanent form) and
slander (words in temporal or transient form). Libel is actionable per se without
proof of special damage whilst slander would require such proof, unless specific
common law and statutory exceptions apply. For example, special damage is not
required to be proved in respect of words calculated to disparage the plaintiff in
any office, profession, calling, trade or business held or carried on at the time of
the publication (see section 5 of the Defamation Act).
(3) Criminal defamation: not the focus of this section
7.12 Apart from the civil tort of defamation, section 499 of the Penal Code
provides for the offence of criminal defamation. For the prosecution of such an
offence, it must be shown that the accused made the publication with the
intention to harm the reputation of the defamed person, or knows or has reason
to believe that such harm would result. The focus of this section is, however, on
the civil tort of defamation.
B. Elements of the cause of action
7.13 The three main requirements for a cause of action under the tort of
defamation are as follows:
a. The statement must be defamatory in nature;
b. The statement must refer to the plaintiff; and
c. The statement must be published.
(1) Defamatory in nature: based on the objective reasonable man test
(a) Defamation found if plaintiff is: lowered in estimation of society, shunned or

avoided, or exposed to hatred, contempt or ridicule

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7.14 A statement is defamatory in nature if it tends to (i) lower the plaintiff in the
estimation of right-thinking members of society generally, or (ii) cause the plaintiff
to be shunned or avoided; or (iii) expose the plaintiff to hatred, contempt or
ridicule. This is based on the objective reasonable man test. The judge
determines whether the test is satisfied in a particular case upon hearing the
evidence adduced at the trial. There are no jury trials in Singapore.
(b) Defamation may be found in natural and ordinary meaning of words or by true
or legal innuendo
7.15 In terms of construction, a statement may be defamatory in two ways: (i)

via the natural and ordinary meaning of the words used or as may be reasonably
inferred from the words; and (ii) by way of true or legal innuendo. True innuendo
arises from words which appear innocuous, but may be understood to be
disparaging of the plaintiff by third parties who have knowledge of special facts
which are not generally known. To support a cause of action based on true
innuendo, the plaintiff will have to plead those special facts known to such third
parties to whom the statement has been published.
(2) Reference to plaintiff: words must be reasonably understood by third party to

refer to plaintiff
7.16 The plaintiff must show that the third party would reasonably understand
the defamatory words to refer to the former. The intention of the defendant to
defame the plaintiff is not a prerequisite. Thus, the defamation action may still
succeed notwithstanding that the defendant did not intend to refer to the plaintiff,
but to some other person or even a fictitious character bearing the same name.
(a) Action by non-natural persons
7.17 Apart from natural persons, legal persons such as incorporated bodies
(including companies) and some unincorporated bodies (for example, societies
registered under the Societies Act (Cap 311, 1985 Rev Ed) with the capacity to

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sue and be sued in its own name) may also bring defamation actions against
persons who have made defamatory statements adversely affecting their
commercial, trading or governing reputations.
(b) Group defamation
7.18 In class or group defamation actions, the issue is whether the defamatory
statement, though targeted at a class or group, is nonetheless reasonably
understood by the reasonable third party to refer to the individual claimant(s). To
ascertain whether such reference exists, criteria such as the group size, the
generality and extravagance of the defamatory statement and other factors may
be taken into consideration.
(3) Publication: statement must be communicated to third parties who would

reasonably understand it to be defamatory
7.19 The defamatory statement must have been communicated to third parties
who would reasonably understand the statement to be defamatory of the plaintiff.
Thus, the communication of the defamatory statement to the plaintiff alone would
not be sufficient.
C. Defences
(1) Justification: where statement is proven to be true in substance and in fact
7.20 The plaintiff is not required to prove that the defamatory statement is false.
Instead, the defendant may establish the defence of justification by proving that
the defamatory statement is true in substance and in fact. Where the allegedly
defamatory statement is a comment, both the facts on which the comment is
based and the comment itself must be substantiated. Similarly, where an
innuendo is pleaded, both the statement and the innuendo have to be justified.
Particulars of the statement(s) of fact and the true facts relied upon by the
defendant must be pleaded (Order 78 Rule 3(2), Rules of Court). The defendant

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is not required to substantiate every charge so long as the unsubstantiated

charges do not materially injure the plaintiff’s reputation (see section 8 of the
Defamation Act). The defence of justification normally constitutes a complete
defence against the plaintiff’s claims.
(2) Fair comment: an expression of opinion based on true facts that is fair and
relates to a matter of public interest
7.21 To succeed in the defence of fair comment, the defendant has to show
that
i. the words complained of are in the nature of a comment (that is, an
expression of opinion as opposed to facts);
ii. the comment is based on true facts – it is not necessary to prove the truth
of all allegations of facts but only those facts alleged or referred to in the
defamatory words which form the basis of the opinion (see section 9 of the
Defamation Act);
iii. the comment is fair, that is, it must be an honestly-held opinion of a fair-
minded person though some allowance may be given for prejudices and
exaggeration; and
iv. the comment relates to a matter of public interest, that is, a matter which
the public at large may legitimately be interested in or concerned with.
7.22 The defence of fair comment will not succeed if the defendant’s comments
are motivated by malice. An opinion is made maliciously if it is shown that the
defendent did not genuinely hold the view he expressed. Actuation by spite,
animosity, intent to injure, intent to arouse controversy or other motivation,
whatever it may be, even if it is the dominant or sole motive, does not of itself
defeat the defence.

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(3) Privilege
7.23 The next defence against the plaintiff’s claim in defamation is based on
the concept of privilege. There are two types of privilege: absolute and qualified
privilege. Absolute privilege cannot be defeated by the plaintiff’s proof that the
defendant’s statements were motivated by malice. On the other hand, qualified
privilege can be defeated by proof of malice. A statement is made maliciously if it
was actuated by dominant improper motive(s). In addition, a statement which is
made without belief in its truth or recklessly (that is, with indifference to its truth or
falsity) is one that is published with malice.
(a) Absolute privilege: defence cannot be defeated by proof of defendant’s malice
7.24 Absolute privilege arises in the following situations or circumstances:

i. Parliamentary proceedings – the Members of Parliament are conferred
immunity from both civil and criminal actions in respect of defamatory
statements made in the course of parliamentary proceedings (see section
6 of the Parliament (Privileges, Immunities and Powers) Act (Cap 217,
2000 Rev Ed)). Similarly, the reports, papers and journals relating to the
proceedings the publication of which is authorised by Parliament are
immune from suit (see section 7 of the Parliament (Privileges, Immunities
and Powers) Act).
ii. Judicial proceedings – immunity is conferred on the judges, counsel,
witnesses and parties in respect of statements made in the course of or
for the purposes of judicial proceedings, including proceedings conducted
by tribunals and bodies recognised by law and acting judicially. The fair,
accurate and contemporaneous reports of judicial proceedings which are
publicly heard are also absolutely privileged (section 11 of the Defamation
Act). This privilege extends to a ‘fair and bona fide’ comment on such
report.
iii. Executive matters – this generally covers communications made by
ministers and civil servants relating to state affairs.

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(b) Qualified privilege: defence can be defeated by proof of defendant’s malice
7.25 The defence of qualified privilege arises in the following instances:
i. Where the defendant has an interest or duty to communicate information

and the third party has the corresponding interest or duty to receive the
information – for instance, communications made by solicitors for the
purposes of advancing clients’ interests and communications between
employers and employees in relation to work matters are ordinarily
accorded qualified privilege.
ii. Where the defendant makes a statement with a view to protect his or her
self-interests (such as when he or she is responding to accusations), such
statements are privileged to the extent that they are published bona fide
as well as relevant and necessary to protect such interests.
iii. Where reports of parliamentary and judicial proceedings are fair and
accurate, qualified privilege arises at common law (that is, outside the
scope of the statutory provisions). Newspaper reports of parliamentary
and judicial proceedings in the Commonwealth are also accorded qualified
privilege statutorily (section 12 of the Defamation Act).
(4) Innocent dissemination: where intermediary did not know publication was
libelious, could not have been alerted to libellous content in the circumstances
and was not negligent
7.26 The defence of innocent dissemination is generally available to

intermediaries such as retail vendors, libraries and delivery agents. To avail of
such a defence, the intermediary who participated in the distribution of the
defamatory statements must show that he or she did not know that the
publication was libellous, the circumstances or work could not have alerted the
defendant to the libellous content and that such ignorance was not due to his or
her negligence.

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(5) Offer of amends:: where defendant shows that statement was made
‘innocently’, offers to make a public apology and informs recipients of publication
of defamatory content
7.27 The Offer of Amends is a procedure which permits a defendant to ward off
a potential defamation action (or to procure, if the action has already
commenced, its discontinuation thereof). The defendant has to first show that he
or she has ‘innocently’ defamed another person and exercised all reasonable
care in relation to the publication. The defendant must also offer to make a public
apology and to take reasonably practicable steps to inform the persons who have
been distributed with the copies of the publication that the contents are
defamatory of the aggrieved party. The Offer of Amends constitutes a defence
against any defamation action by the aggrieved party. If the offer is accepted by
the aggrieved party and its terms are complied with by the defendant, the
aggrieved party is precluded from suing the defendant in respect of the
defamatory publication (see section 7 of the Defamation Act).
(6) Assent by plaintiff: clear and unequivocal assent to publication of defamatory

statement
7.28 Where the plaintiff had clearly and unequivocally assented to the
publication of the defamatory statement; that constitutes a valid defence to the
defamation action.
D. Remedies
7.29 A plaintiff who has successfully established a cause of action in

defamation against which there are no valid defences may obtain (a) monetary
damages; and/or (b) injunctions restraining the publication, and/or (c) in
exceptional circumstances, injunctions mandating that the defendant withdraw
the defamatory statement.

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(1) Damages: for vindicating reputation, providing consolation for distress and
hurt and to repair damage to reputation
7.30 Damages are awarded to vindicate the reputation of the plaintiff, provide
consolation for the distress and hurt suffered by the plaintiff and to repair the
damage to the plaintiff's reputation. The gravity of the statement, the standing of
the plaintiff, the extent of the publication and the effect of the publication on the
plaintiff are factors to be taken into consideration for ascertaining the quantum of
the damages. The court also takes into account the intended deterrent effect
against the defendant. The awards in personal injury cases do not provide a
helpful guide in ascertaining the quantum of damages for defamation. The
plaintiff has to prove that he or she suffered special damage, except in cases of
libel or certain forms of slander (see above). The principles of causation and
remoteness are applicable to the quantification of special damages in
defamation.
(2) Aggravated damages: awarded in appropriate cases for additional injury
7.31 Aggravated damages may be awarded in appropriate cases. Aggravated

damages, which are compensatory in nature, may be awarded in respect of the
additional injury caused by the defendant’s conduct or bad motives. For purposes
of ascertaining damages, the plaintiff is required to give full particulars in the
statement of claim of the details of any conduct by the defendant which has
allegedly increased the injury suffered (Order 78 Rule 3(3A), Rules of Court). The
amounts for both general compensatory and aggravated damages (if any) are
awarded to the plaintiff in one lump sum, though a breakdown of the respective
sums should be provided.

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(3) Exemplary damages: awarded as a deterrent measure against expectation of

profit of gain through publication
7.32 Exemplary or punitive damages are less common. Nonetheless,

exemplary damages may be awarded as a deterrent measure where the
defendant had published the defamatory statement in the expectation of profit or
gain beyond the amount of compensatory damages payable and was aware that
the publication was untrue.
(4) Mitigation of damages: through apology or undertaking not to republish
7.33 The defendant may make or offer an apology with a view to mitigating
damages (see section 10 of the Defamation Act). Similarly, an undertaking by the
defendant not to republish would generally go towards the mitigation of damages.
(5) Prohibitory Injunctions: to prevent future publication of defamatory materials
7.34 Prohibitory injunctions are usually granted to prevent the future publication
of defamatory materials only where such further publication is reasonably
apprehended. The courts are generally more cautious of issuing interlocutory
injunctions, and will do so only where it is clear that the words complained of
were libellous and no defence could possibly apply.
E. Internet defamation
7.35 With the advent of technology, globalisation and rise in the usage of the
Internet, defamation in cyberspace is a real issue today. This problem, though
not unique to Singapore, can have a significant impact considering the high
proportion of Internet usage within the country for private, commercial and public
purposes.

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(1) Network service providers: protected if merely providing access to materials
7.36 With respect to the role of Network Service Providers (NSPs), section 26
of the Electronic Transactions Act (Cap 88, 2011 Rev Ed) protects a network
service provider from liability arising from the making, publication, dissemination
or distribution of third party materials, if the NSP were merely providing access to
such materials. A third party refers, in this context, to a person over which the
NSP has no effective control.
(2) Conflicts of laws
7.38 Defamation on the Internet also poses conflicts of law issues, particularly
in relation to jurisdiction and choice of law.
CREDITS TO
Gary Chan
Associate Professor of Law, School of Law
Singapore Management University
Lee Pey Woan

Associate Professor of Law, School of Law
Singapore Management University

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CHAPTER 8
OCCUPIER’S LIABILITY
INTRODUCTION
8.1 Occupiers' liability generally refers to the duty owed by land owners to those
who come onto their land. However, the duty imposed on land owners can extend
beyond simple land ownership and in some instances, the landowners may transfer
the duty to others, hence the term occupier rather than owner.
8.2 The term occupier itself is misleading since physical occupation is not
necessary for liability to rise. Occupiers' liability is perhaps a distinct form of
negligence in that there must be a duty of care and breach of duty, causing damage.
The rules of remoteness apply to occupiers liability in the exact same way that they
apply to negligence claims. Liability can arise on occupiers for omissions since their
relationship gives rise to duty to take action to ensure the reasonable safety of
visitors.
8.3 The law relating to occupiers' liability originated in common law but is now
contained in two major pieces of legislation. Different levels of protection are
expected under the two pieces of legislation with a higher level of protection afforded
to lawful visitors.
Occupiers Liability Act 1957 - which imposes an obligation on occupiers with

regard to 'lawful visitors'
Occupiers Liability Act 1984 - which imposes liability on occupiers with regard to
persons other than 'his visitors'.
Occupiers
8.4 Both the Occupiers Liability Acts of 1957 and 1984 impose an obligation on
occupiers rather than land owners. The question of whether a particular person is an

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occupier is a question of fact and depends on the degree of control exercised. The
test applied is one of 'occupational control' and there may be more than one occupier
of the same premises:
Wheat v Lacon [1966] AC 552 House of Lords

Facts: The claimant and her family stayed at a public house, The Golfer’s Arms
in Great Yarmouth, for a holiday. Unfortunately her husband died when he fell
down the stairs and hit his head. The stairs were steep and narrow. The handrail
stopped two steps from the bottom of the stairs and there was no bulb in the light.
The claimant brought an action under the Occupiers Liability Act 1957 against the
Brewery company, Lacon, which owned the freehold of The Golfer’s Arms and
against the Managers of the Pub, Mr & Mrs Richardson, who occupied the pub as
a licensee.
Held: Both the Richardsons and Lacon were occupiers for the purposes of the
Occupiers Liability Act 1957 and therefore both owed the common duty of care. It
is possible to have more than one occupier. The question of whether a particular
person is an occupier under the Act is whether they have occupational control.
Lacon had only granted a license to the Richardsons and had retained the right to
repair which gave them a sufficient degree of control. There is no requirement of
physical occupation. However, it was found that Lacon was not in breach of duty
since the provision of light bulbs would have been part of the day to day
management duties of the Richardsons. Since the Richardsons were not party to
the appeal the claimant’s action failed.
Lord Denning: “wherever a person has a sufficient degree of control over
premises that he ought to realise that any failure on his part to use care may
result in injury to a person coming lawfully there, then he is an "occupier " and the
person coming lawfully there is his " visitor ": and the "occupier " is under a duty
to his " visitor " to use reasonable care. In order to be an "occupier" it is not
necessary for a person to have entire control over the premises. He need not
have exclusive occupation. Suffice it that he has some degree of control. He may
share the control with others. Two or more may be "occupiers ". And whenever
this happens, each is under a duty to use care towards persons coming lawfully
on to the premises, dependent on his degree of control. If each fails in his duty,
each is liable to a visitor who is injured in FERIX
WALTER consequence
SILVESTER &of his LEARNING
LEGAL failure, but
LABSeach
PTE LTD
may have a claim to contribution from the other.”
111
Physical occupation is not a requirement:
Harris v Birkenhead [1976] 1 WLR 279 Court of Appeal
Facts: The claimant Julie Harris was 4 years old when she wandered off from a
children’s play park with her friend. They entered a derelict house which was due for
demolition. The house had not been secured and the door was open. They went
upstairs and Julie sustained serious injury when she fell from a window. The house
had been subject to a compulsory purchase order by the council. The house had
been owned by a private landlord and the tenant was offered alternative
accommodation by the council. The tenant informed the council that she did not want
to take up the offer of accommodation and made her own arrangements and left the
property. The council served 14-days’ notice on the owner of their intention to take
possession of the property, but never actually took physical possession at the expiry
of the 14 days.
Held: The Council had the legal right to take possession to secure the property,
actual physical occupation was not required to incur liability as an occupier. The
council were therefore liable.
Occupiers Liability Act 1957

8.5 The Occupiers Liability Act 1957 imposes a common duty of care on
occupiers to lawful visitors. By virtue of s.1(3)(a), the Act applies not only to land and
buildings but also extends to fixed and movable structures, including any vessel,
vehicle or aircraft. The protected damage under the Occupiers Liability Act 1957
includes death, personal injury and damage to property.
Lawful visitors - Lawful visitors to whom occupiers owe the common duty of
care for the purposes of the Occupiers Liability Act of 1957 include:

112
Invitees - S.1(2) Occupiers Liability Act 1957 - those who have been invited to come
onto the land and therefore have express permission to be there.
Licensees - S.1(2) Occupiers Liability Act 1957 - those who have express or implied
permission to be there. According to S. 1(2) this includes situations where a licence
would be implied at common law. (See below)
Those who enter pursuant to a contract - s.5(1) Occupiers Liability Act 1957 - For
example paying guests at a hotel or paying visitors to a theatre performance or to
see a film at a cinema.
Those entering in exercising a right conferred by law - s.2(6) Occupiers Liability

Act 1957 - For example a person entering to read the gas or electricity metres.
Implied licence at common law

In the absence of express permission to be on the land, a licence may be implied at
common law where there exists repeated trespass and no action taken by the
occupier to prevent people coming on to the land. This requires an awareness of the
trespass and the danger:
Lowery v Walker [1911] AC 10 House of Lords
Facts: The Claimant was injured by a horse when using a short cut across the
defendant’s field. The land had been habitually used as a short cut by members
of the public for many years and the defendant had taken no steps to prevent
people coming on to the land. The defendant was aware that the horse was
dangerous.
Held: The defendant was liable. Whilst the claimant did not have express
permission to be on the land, a licence was implied through repeated trespass
and the defendant’s acquiescence.

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Repeated trespass alone insufficient:
Edwards v Railways Executive [1952] AC 737 House of Lords
Facts: A particular spot on a railway was used as a short cut on a regular basis.
The fence was repaired on several occasions and whenever it was reported to
have been interfered with. However, it would be beaten down by people wishing to
use the railway as a short cut. Witness testimony was to the effect that the fence
was in good repair the morning of the incident.
Held: No licence was implied. The Defendant had taken reasonable steps to
prevent people coming onto the railway.
Lord Goddard: "Repeated trespass of itself confers no licence"
Allurement principle
8.6 The courts are more likely to imply a license if there is something on the land
which is particularly attractive and acts as an allurement to draw people on to the
land.
Taylor v Glasgow Corporation [1922] 1 AC 448 House of Lords
Facts: The defendants owned the Botanic Gardens of Glasgow, a park which was
open to the public. On the park various botanic plants and shrubs grew. A boy of
seven years ate some berries from one of the shrubs. The berries were poisonous
and the boy died. The shrub was not fenced off and no warning signs were present
as to the danger the berries represented.
Held: Glasgow Corporation was liable. Children were entitled to go onto the land.
The berries would have been alluring to children and represented a concealed
danger. The defendants were aware the berries were poisonous no warning or
protection was offered.
8.7 However, since the introduction of the Occupiers Liability Act 1984, the courts
have been reluctant to imply a licence:

114
Tomlinson v Congleton Borough Council [2003] 3 WLR 705 [HL]

Facts: The defendant owned Brereton Heath Country Park. It had previously
been a sand quarry and they transformed it into a country park and opened it up
for public use.
The defendants had created a lake on the park which was surrounded by sandy
banks. In the hot weather many visitors came to the park. Swimming was not
permitted in the lake and notices were posted at the entrance saying “Dangerous
water. No swimming”. However despite this, many people did use the lake for
swimming.
Rangers were employed and on occasions sought to prevent swimming but

some of the visitors would be rude to the rangers’ attempts to prevent them and
many continued to swim.
The claimant was injured when he dived into shallow water and broke his neck.
At the Court of Appeal it was held that he was a trespasser despite the repeated
trespass and inadequate steps to prevent him swimming. They also stated that
the warning signs may have acted as an allurement to macho young men. The
Court of Appeal was of the opinion that since the introduction of the Occupiers
Liability Act 1984, the courts should not strain to imply a licence. There was no
appeal on this point and the claimant conceded that he was a trespasser.
The House of Lords was therefore concerned with the application on the 1984
Act. The Court of Appeal had held that the council were liable but reduced the
damages by 2/3 under the Law Reform (Contributory Negligence) Act 1945. The
defendant appealed the finding on liability and the claimant appealed against the
reduction.

115
Tomlinson v Congleton Borough Council [2003] 3 WLR 705 HL
Held: The Council were not liable.
No risk arose from the state of the premises as required under s.1(1)(a)
Occupiers Liability Act 1984.
The risk arose from the claimant’s own action. He was a person of full capacity
who voluntarily and without pressure or inducement engaged in an activity
which had an inherent risk. Even if there was a risk form the state of the
premises, the risk was not one against which the council would reasonably be
expected to offer the claimant some protection under s.1(3)(C).
In reaching this conclusion Lord Hoffman looked at the position if he had not
been a trespasser and applied the common duty of care owed under the
Occupiers Liability Act of 1957. He was of the opinion that there was no duty to
warn or take steps to prevent the claimant from diving as the dangers were
perfectly obvious.
This was based on the principle of free will and that to hold otherwise would
deny the social benefit to the majority of the users of the park from using the
park and lakes in a safe and responsible manner.
To impose liability in this situation would mean closing of many such venues up
and down the country for fear of litigation. He noted that 25-30 such fractures
occurred each year nationwide, despite increased safety measures the numbers
had remained constant.

116
Non lawful visitors
8.8 The 1957 Act does not extend protection to:
 trespassers
 Invitees who exceed their permission
 Persons on the land exercising a public right of way:
McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53 House of

Lords
The claimant was injured when she tripped in a hole on land owned by the
defendant. The land was a public right of way. It was held that the defendant was
not liable as the claimant was not a lawful visitor under the Occupiers Liability Act
1957 because she was exercising a public right of way.
 Persons on the land exercising a private right of way:
Holden v White [1982] 2 All ER 328 Court of Appeal
The claimant, a milkman, was injured on the defendant’s land by a manhole cover
which broke when he stepped on it. At the time he was delivering milk to the
house of a third party who had a right of way across the defendant’s land. It was
held that he was not entitled to claim against the defendant since he was
exercising a right of way and was not therefore a lawful visitor of the defendant.

117
The common duty of care
8.9 The common duty of care is set out in s.2(2) Occupiers Liability Act 1957:
S.2(2) - 'The common duty of care is to take such care as in all the circumstances of
the case is reasonable to see that the visitor will be reasonably safe in using the
premises for the purposes for which he is invited or permitted by the occupier to be
there.'
8.9 Thus the standard of care varies according to the circumstances. The
legislation refers to two particular situations where the standard may vary:
 S.2(3)(a) - an occupier must be prepared for children to be less careful than
adults
 S.2(3)(b) - an occupier may expect that a person in the exercise of his calling
will appreciate and guard against any special risks ordinarily incident to it
S. 2(3) (a) Child visitors

8.10 The courts will take into account the age of the child and level of
understanding a child of that age may be expected to have.
Titchener v British Railways Board [1983] 1 WLR 1427 [HL]
Facts: The Claimant, a 15 year old girl, was out walking with her boyfriend who
was 16. They took a short cut across a railway line and they were both hit by a
train. He was killed and she was seriously injured. There was a gap in the fence at
the place where they crossed and there was a pathway leading to this gap which
suggested that there was repeated trespass. Also it was accepted that either the
Defendant was aware of the gap or would have been aware upon reasonable
inspection. The Defendant raised the defence of volenti under s.2(3) of the
Occupiers Liability (Scotland) Act 1960.
Held: The scope of the duty owed to trespassers varies on the circumstances. On
the facts of this case the Defendants did not owe a duty to a 15 year old
trespasser who was fully aware of the risks. Even if the Defendant did owe a duty
of care the defence of volenti under s.2(3)
WALTERwould
FERIX succeed.
SILVESTER & LEGAL LEARNING LABS PTE LTD
118
Jolley v Sutton [2000] 1 WLR 1082
Facts: Two 14 year old boys found an abandoned boat on land owned by the
council and decided to do it up. The boat was in a thoroughly rotten condition and
represented a danger.
The council had stuck a notice on the boat warning not to touch the boat and that if
the owner did not claim the boat within 7 days it would be taken away. The council
never took it away.
The boys had been working on the boat for 6-7 weeks when one of them suffered
severe spinal injuries, resulting in paraplegia, when the boat fell on top of him. The
boys had jacked the boat up to work on the underside and the jack went through
the rotten wood.
The claimant brought an action under the Occupiers Liability Act 1984. The trial
judge found for the claimant. The Court of Appeal reversed the decision, holding
that whilst it was foreseeable that younger children may play on the boat and suffer
an injury by falling through the rotten wood, it was not foreseeable that older boys
would try to do the boat up. The claimant appealed.
Held: The claimant's appeal was allowed. The risk was that children would
"meddle with the boat at the risk of some physical injury" The actual injury fell
within that description.
Lord Steyn: "The scope of the two modifiers - the precise manner in which the
injury came about and its extent - is not definitively answered by either The Wagon
Mound (No. 1) or Hughes v. Lord Advocate. It requires determination in the context
of an intense focus on the circumstances of each case."

119
Taylor v Glasgow Corporation [1922] 1 AC 448 House of Lords
Facts: The defendants owned the Botanic Gardens of Glasgow, a park which was
open to the public. On the park various botanic plants and shrubs grew. A boy of
seven years ate some berries from one of the shrubs. The berries were poisonous
and the boy died. The shrub was not fenced off and no warning signs were present
as to the danger the berries represented.
Held: Glasgow Corporation was liable. Children were entitled to go onto the land.
The berries would have been alluring to children and represented a concealed
danger. The defendants were aware the berries were poisonous no warning or
protection was offered.
Phipps v Rochester Corporation [1955] 1 QB 450
Facts: A 5 year old boy was walking across some open ground with his 7 year old
sister. He was not accompanied by an adult. He was injured when he fell into a
trench. The Corporation were not held liable as an occupier is entitled to assume
that prudent parents would not allow their children to go unaccompanied to places
where it is unsafe.
Held: Devlin J on duty owed to children

“The law recognises a sharp difference between children and adults. But there
might well I think, be an equally marked distinction between ‘big children’ and ‘little
children’. …The occupier is not entitled to assume that all children will, unless they
are allured, behave like adults; but he is entitled to assume that normally little
children will be accompanied by a responsible person. …The responsibility for the
safety of little children must rest primarily upon the parents; it is their duty to see
that such children are not allowed to wander about by themselves, or at least to
satisfy themselves that the places to which they do allow their children to go
unaccompanied are safe. It would not be socially desirable if parents were, as a
matter of course, able to shift the burden of looking after their children from their
own shoulders to those persons who happen to have accessible pieces of land.”

120
S.2(3)(b) Common calling

8.11 This provision applies where an occupier employs an expert to come on to the
premises to undertake work. The expert can be taken to know and safeguard
themselves against any dangers that arise from the premises in relation to the calling
of the expert. For example if an occupier engages an electrician, the
electrician would be expected to know the dangers inherent in the work they are
employed to do.
Roles v Nathan [1963] 1 WLR 1117 Court of Appeal
Facts: Two brothers, Donald and Joseph Roles were engaged by Mr Nathan as
chimney sweeps to clean the flues in in a central heating system at Manchester
Assembly Rooms. The flues had become dangerous due to carbon monoxide
emissions.
A heating engineer had warned them of the danger, however, the brothers told
him they knew of the dangers and had been flue inspectors for many years. The
engineer monitored the situation throughout the day and at one point ordered
everybody out of the building due to the levels of carbon monoxide. The brothers
ignored this advice and continued with their work. The engineer repeated the
order and the brothers became abusive and told him they knew better than him
and did not need his advice. The engineer forcibly removed them from the
building. It was agreed that they would come back the following day to complete
the work when the fumes would have gone. They were also told they should not
do the work whilst the fires were lighted.
However, the next day the brothers were found dead in the basement having
returned the previous evening to complete the work when the fires were lit. Their
widows brought an action under the Occupiers Liability Act 1957.
Held: The defendant was not liable. The dangers were special risks ordinarily
incident to their calling. The warnings issued were clear and the brothers would
have been safe had they heeded the warnings.

121
Salmon v Seafarer Restaurants [1983] 1WLR 1264
Facts: The defendant owned a fish and chip shop. One night he left the chip
fryer on and closed the shop for the night. This caused a fire and the fire
services were called to put out the fire.
The claimant was a fire man injured in an explosion whilst fighting the fire. He
had been thrown to the ground whilst footing a ladder on a flat roof.
The defendant sought to escape liability by invoking s.2(3)(b) of the Occupiers

Liability Act 1957 in that the fire fighter could be expected to guard against
special risks inherent in fighting fires.
Held: The defendant was liable.
Where it can be foreseen that the fire which is negligently started is of the
type which could require firemen to attend to extinguish that fire, and where,
because of the very nature of the fire, when they attend they will be at risk
even if they exercise all the skill of their calling, there is no reason why a
fireman should be at any disadvantage in claiming compensation.
The duty owed to a fireman was not limited to the exceptional risks associated
with fighting fire but extended to ordinary risks.

122
Ogwo v Taylor [1987] 3 WLR 1145 House of Lords
Facts: The Defendant attempted to burn off paint from the fascia boards
beneath the eaves of his house with a blow lamp and in so doing set fire to
the premises.
The fire brigade were called and the Claimant, an acting leading fireman, and
a colleague entered the house wearing breathing apparatus and the usual
fireman's protective clothing and armed with a hose. The two firemen were
able, with the aid of a step- ladder, to squeeze through a small hatch to get
into the roof space. The heat within the roof space was intense.
The Claimant suffered serious burn injuries to his upper body and face from
scalding steam which must have penetrated his protective clothing.
Held: A duty of care was owed to a professional fireman. There was no

requirement that the risk be exceptional. The defence of VOLENTI had no
application.
Lord Bridge: "The duty of professional firemen is to use their best endeavours
to extinguish fires and it is obvious that, even making full use of all their skills,
training and specialist equipment, they will sometimes be exposed to
unavoidable risks of injury, whether the fire is described as "ordinary" or
"exceptional."
If they are not to be met by the doctrine of VOLENTI, which would be utterly
repugnant to our contemporary notions of justice, I can see no reason
whatever why they should be held at a disadvantage as compared to the
layman entitled to invoke the principle of the so-called "rescue" cases."

123
Warnings and warning signs
8.12 It may be possible for an occupier to discharge their duty by giving a warning
of the danger. (See Roles v Nathan above)
8.13 However, S.2(4)(a) Occupiers Liability Act 1957 provides that a warning given
to the visitor will not be treated as absolving the occupier of liability unless in all the
circumstances it was enough to enable the visitor to be reasonably safe. The
warning must cover the danger that in fact arises:
White v Blackmore [1972] 3 WLR 296 Court of Appeal
Facts: Mr White was killed at a Jalopy car race due negligence in the way the
safety ropes were set up. A car crashed into the ropes about 1/3 of a mile from
the place where Mr White was standing. Consequently he was catapulted 20 foot
in the air and died from the injuries received.
Mr White was a driver in the race but at the time of the incident he was between
races and standing close to his family. He had signed a competitors list which
contained an exclusion clause. There was also a warning sign at the entrance to
the grounds which stated that Jalopy racing is dangerous and the organisers
accept no liability for any injury including death howsoever caused. The
programme also contained a similar clause.
His widow brought an action against the organiser of the event who defended on
the grounds of VOLENTI and that they had effectively excluded liability.
Held: The defence of VOLENTI was unsuccessful. Whilst it he may have

been VOLENS in relation to the risks inherent in Jalopy racing, he had not
accepted the risk of the negligent construction of the ropes. However the
defendant had successfully excluded liability (Lord Denning MR dissenting).

124
8.14 There is no duty to warn against obvious risks:
Cotton v Derbyshire Dales District Council [1994] EWCA Civ 17 CA

Facts: The claimant, a 26 year old man, had gone out for the day with a group of
friends and his fiancé over the Easter bank holiday. They had visited 3 pubs where
the claimant had drunk about 4 pints. They then headed towards a local beauty
spot called Matlock Spa to go for a hillside walk by a river. The party were in high
spirits and became separated. The claimant and his fiancé drifted from the pathway
and he was seriously injured when he fell off a cliff. There was a sign at one
entrance to Matlock stating “For your own enjoyment and safety please keep to the
footpath. The cliffs can be very dangerous, and children must be kept under close
Cotton v Derbyshire
supervision.” Dalesthere
However, District
wasCouncil [1994]
no such EWCA
sign Civ entrance
at the 17 Case summary
used by the
claimant. The claimant brought an action based on the Occupiers Liability Act 1957
Staples v WesttoDorset
for the failure District
adequately Council
warn [1995]
him of PIQR 439 Case summary
the risk.
Held: There was no obligation to warn of an obvious risk. The claimant would have
been aware of the existence of the cliff so such a warning would not have affected
events.
Staples v West Dorset District Council [1995] EWCA Civ 30 CA
Facts: The claimant fractured his hip when he slipped and fell off a harbour wall.
The harbour wall was known as The Cobb and was a well-known tourist attraction
commonly used as a promenade. The edge of The Cobb was covered with algae
and extremely slippery when wet. The claimant had crouched in the area affected
by the algae to take a photo of his friends, when he slipped and fell off a 20 foot
drop landing on rocks below. He brought an action based on the Occupiers Liability
Act 1957 arguing that no warning signs were present as to the dangers of slipping.
Held: The dangers of slipping on wet algae on a sloping harbour wall were obvious
and known to the claimant. Therefore there was no duty to warn.

125
Dangers arising from actions undertaken by independent contractors
8.15 S.2(4)(b) Occupiers Liability Act 1957
An occupier is not liable for dangers created by independent contractors if the

occupier acted reasonably in all the circumstances in entrusting the work to the
independent contractor and took reasonable steps to satisfy himself that the work
carried out was properly done and the contractor was competent.
Ferguson v Welsh [1987] 1 WLR 1553 House of Lords

Facts: Sedgefield District Council, in pursuance of a development plan to build
sheltered accommodation, engaged the services of Mr Spence to demolish a
building. It was a term of the contract that the work was not to be sub-contracted
out. In breach of this term, Mr Spence engaged the services of the Welsh brothers
to carry out the demolition who in turn engaged the services of Mr Ferguson to
assist. Mr Ferguson suffered serious injury resulting in permanent paralysis when
a wall he was standing on collapsed due to the unsafe practices operated by the
Welsh brothers.
Gwilliam v West Hertfordshire Hospitals NHS Trust [2003] QB 443 case summary
He brought an action against the Council, Mr Spence and the Welsh brothers. The
trial judge held that the Welsh Brothers were liable but that Mr Spence and the
Council were not liable. Mr Ferguson appealed against the finding against the
Council since the Welsh Brothers (or Mr Spence) had the funds or insurance to
meet liability.
Held: The appeal was dismissed.

Mr Ferguson was a lawful visitor despite the clause forbidding sub-contracting
since Mr Spence would have apparent or ostensible authority to invite him on to
the land. However, the danger arose from the unsafe system of work adopted by
the Welsh Brothers not the state of the premises. Whilst there was evidence that
Mr Spence had sub-contracted demolition work to those executing unsafe
practices on previous occasions, there was no evidence that the Council were
aware of this. WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD
126
Gwilliam v West Hertfordshire Hospital NHS Trust [2002] EWCA Civ

1041 Court of Appeal
Facts: The claimant, a 63 year old woman, was injured at a summer fair
hosted by West Hertfordshire Hopsital. She was injured whilst using a ‘splat
wall’ whereby participants would bounce off a trampette against a wall and
become attached to the wall by means of Velcro material.
The injury occurred as a result of negligent set up of the equipment. The

equipment was provided by a business called ‘Club Entertainments’ who were
an independent contractor engaged by the Hospital. Club Entertainment’s
public liability insurance had expired four days before the incidence and thus
they had no cover for the injury. They agreed to settle her claim for £5,000.
Mrs Gwilliam brought an action against the hospital based on their failure to
ensure that the entertainment arranged was covered by public liability
insurance. She claimed the difference between the £5,000 and what she would
have received had they been covered by insurance.
Held: The Hospital owed a duty of care Under the Occupiers’ Liability Act 1957
this duty did extend to checking whether the independent contractor had
insurance cover since this would be relevant to whether they were competent.
However, there was no breach of duty since the Hospital had enquired and had
been told by Club Entertainment that they had insurance cover. There was no
duty to inspect the insurance documents to ensure that cover was adequate.

127
Defences applicable to Occupiers Liability Act 1957
8.16 Volenti non fit injuria - s.2(5) OLA 1957 - the common duty of care does not
impose an obligation on occupiers in respect of risks willingly accepted by the visitor.
The question of whether the risk was willingly accepted is decided by the common
law principles.
8.17 Contributory negligence - Damages may be reduced under the Law Reform
(Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for
their own safety.
8.17 Exclusion of liability - s. 2(1) OLA 1957 allows an occupier to extend,

restrict, exclude or modify his duty to visitors in so far as he is free to do so. (See
White v Blackmore above)
8.18 Where the occupier is a business the ability to exclude liability is subject to
the Unfair Contract Terms Act 1977
Occupiers Liability Act 1984
8.19 The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to
persons 'other than his visitors' (S.1(1)(a)OLA 1984). This includes trespassers and
those who exceed their permission. Protection is even afforded to those breaking
into the premises with criminal intent see Revill v Newbery [1996] 2 WLR 239 Case
summary. Whilst it may at first appear harsh to impose a duty on occupiers for those
that have come on to their land uninvited and without permission, liability was
originally recognised at common law for child trespassers where the occupier was
aware of the danger and aware that trespassers, including children would encounter
the danger.

128
8.20 'Occupier' is given the same meaning as under the 1957 Act (S.1(2) OLA
1984). Since the Occupiers Liability Act 1984 applies to trespassers, a lower level of
protection is offered. Hence the fact that death and personal injury are the only
protected forms of damage and occupiers have no duty in relation to the property of
trespassers. (S.1(8) OLA 1984). Also the duty only arises when certain risk factors
are present.
The circumstances giving rise to a duty of care
8.21 S.1(3) Occupiers Liability Act 1984 An occupier owes a duty to another (not
being his visitor) if:
(a) He is aware of a the danger or has reasonable grounds to believe that it exists
(b) He knows or has reasonable grounds to believe the other is in the vicinity of
the danger or may come into the vicinity of the danger
(c) The risk is one in which in all the circumstances of the case, he may
reasonably be expected to offer the other some protection
If all three of these are present the occupier owes a duty of care to the non-lawful
visitor.
The criteria in s.1(3) must be determined having regard to the circumstances

prevailing at the time the alleged breach of duty resulted in injury to the claimant:

129
Donoghue v Folkestone Properties [2003] EWCA Civ 231 Court of Appeal
Facts: Mr Donoghue, the claimant, spent Boxing Day evening in a public house
called Scruffy Murphy’s. It was his intention, with some of his friends, to go for a
midnight swim in the sea. Unfortunately in his haste to get into the water he dived
from a slipway in Folkestone harbour owned by the defendant and struck his head on
an underwater obstruction, breaking his neck.
At his trial evidence was adduced to the affect that the slipway had often been used
by others during the summer months to dive from. Security guards employed by the
defendant had stopped people from diving although there were no warning signs put
out. The obstruction that had injured the claimant was a permanent feature of a grid-
pile which was submerged under the water. In high tide this would not have posed a
risk but when the tide went out it was a danger. The claimant’s action was based on
the Occupiers Liability Act 1984. Mr Donoghue was 31, physically fit, a professional
scuba diver who had trained in the Royal Navy. It was part of his basic knowledge as
a diver that he should check water levels and obstructions before diving. The trial
judge found for the claimant but reduced the damages by 75% to reflect the extent to
which he had failed to take care of his own safety under the Law Reform
(Contributory Negligence) Act 1945. The defendant appealed contending that in
assessing whether a duty of care arises under s.1(3) each of the criteria must be
assessed by reference to the individual characteristics and attributes of the particular
claimant and on the particular occasion when the incident in fact occurred ie when
assessing whether the defendant should be aware of whether a person may come
into the vicinity of the danger, it should be assessed on the likelihood of someone
diving into the water in the middle of the night in mid-winter rather than looking at the
incidences of diving during the summer months.
Held: Appeal allowed. The test of whether a duty of care exists under s.1(3)
Occupiers Liability Act 1984 must be determined having regard to the circumstances
prevailing at the time of the alleged breach resulted in injury to the claimant. At the
time Mr Donoghue sustained his injury, Folkestone Properties had no reason to
believe that he or anyone else would be swimming from the slipway. Consequently,
the criteria set out in s.1(3)(b) was not satisfied and no duty of care arose.
130
Standard of care
8.22 S.1(4) OLA 1984 - the duty is to take such care as is reasonable in all the
circumstances of the case to see that the other does not suffer injury on the
premises by reason of the danger concerned.
Revill v Newbery [1996] 2 WLR 239 Court of Appeal

Facts: Mr Newbery was a 76 year old man. He owned an allotment which had a shed
in which he kept various valuable items. The shed was subject to frequent break ins
and vandalism. Mr Newbery had taken to sleeping in his shed armed with a 12 bore
shot gun.
Mr Revill was a 21 year old man who on the night in question, accompanied by a Mr
Grainger, went to the shed at 2.00 am in order to break in. Mr Newbery awoke, picked
up the shot gun and fired it through a small hole in the door to the shed. The shot hit
Mr Revill in the arm. It passed right through the arm and entered his chest. Both
parties were prosecuted for the criminal offences committed. Mr Revill pleaded guilty
and was sentenced. Mr Newbery was acquitted of wounding. Mr Revill brought a civil
action against Mr Newbery for the injuries he suffered. Mr Newbery raised the defence
of ex turpi causa, accident, self-defence and contributory negligence.
Held: The Claimants action was successful but his damages were reduced by 2/3
under the Law Reform (Contributory Negligence) Act 1945 to reflect his responsibility
for his own injuries.
On the application of ex turpi causa Neill LJ: "For the purposes of the present
judgment I do not find it necessary to consider further the joint criminal enterprise
cases or the application of the doctrine of ex turpi causa in other areas of the law of
tort. It is sufficient for me to confine my attention to the liability of someone in the
position of Mr. Newbery towards an intruding burglar. It seems to me to be clear that,
by enacting section 1 of the 1984 Act, Parliament has decided that an occupier cannot
treat a burglar as an outlaw and has defined the scope of the duty owed to him. As I
have already indicated, a person other than an occupier owes a similar duty to an
intruder such as Mr. Revill. In paragraph 32 of their 1976 Report the Law Commission
rejected the suggestion that there should be no duty at all owed to a trespasser who
was engaged in a serious criminal enterprise."
Ratcliff v McConnell and Harper Adams College [1997] EWCA Civ 2679 CA
131
Facts: The claimant was a student at Harper Adams College. One night he had been
out drinking with friends on campus and they decided they would go for a swim in the
college pool which was 100 yards from the student bar. They climbed over a locked
gate into the open air swimming pool. The pool had a notice at the entrance which
stated the pool would be locked and its use prohibited between the hours of 10pm -
6.30am. There was a notice at the shallow end in red on a White background stating
‘Shallow end’ and a notice at the deep end stating ‘Deep end, shallow dive’. However,
the boys did not see the signs because there was no light. The three boys undressed.
The claimant put his toe in the water to test the temperature and then the three of
them lined up along the side of the pool and dived in. Unfortunately the point at which
the claimant dived was shallower than where the other boys dived and he sustained a
broken neck and was permanently paralysed. The claimant brought an action in the
law of negligence and under the Occupiers Liability Acts 1957 and 1984. The trial
judge held that the claimant was a trespasser since he was not permitted to go into
the pool and that the College owed a duty of care under the 1984 Act since the pool
had often been used by students in the prohibited hours so the College should have
been aware that the claimant was within a class of persons who may come into the
danger. The breach was in not taking more preventative action to prevent use of the
pool. The claimant’s damages were, however, reduced by 60% under the Law
Reform (Contributory Negligence) Act 1945. The defendants appealed contending the
evidence relied on by the claimant in terms of repeated trespass all took place before
1990 before they started locking the gates.
Held: The appeal was allowed. The claimant was not entitled to compensation.
The defendant had taken greater steps to reduce trespass by students since 1990.
The only incidence of trespass to the pool in the four years prior to the claimant’s
injury, related to students from a visiting college and therefore there was no reason
for the college to suspect the students had come into the danger so no duty of care
arose under s.1(3)(b) Occupiers Liability Act 1984. Also the trial judge had incorrectly
identified the danger. The pool itself was not dangerous it was the activity of diving
into it which was unsafe. This was an obvious danger to which there was no duty to
warn. By surrounding the pool with a 7 foot high fence, a locked gate and a
prohibition on use of the pool in the stated hours the College had offered a
reasonable level of protection.
132
8.23 The duty may be discharged by giving a warning or discouraging others from
taking the risk S.1(5) Occupiers Liability Act 1984 - note there is no obligation in
relation to the warning to enable the visitor to be reasonably safe - contrast the
provision under the 1957 Act. (See Tomlinson v Congleton Borough Council at
8.7 above)
Defences
8.24 Volenti non fit injuria - s.1(6) OLA 1984 - no duty of care is owed in respect
of risks willingly accepted by the visitor. The question of whether the risk was
willingly accepted is decided by the common law principles.
8.25 Contributory negligence - Damages may be reduced under the Law Reform
(Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for
their own safety.
8.26 Exclusion of liability - Whereas the 1957 Act allows an occupier to exclude
liability (subject to the provisions set out in UCTA 1977), the 1984 Act does not
expressly confer such a right. This may be an oversight by the legislature and it may
be possible to exclude liability since it is not expressly forbidden or it may be that the
legislature was of the opinion that it should not be possible to exclude liability for the
basic level of protection afforded to trespassers.

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CHAPTER 9
VICARIOUS LIABILITY
WHAT IS VICARIOUS LIABILITY?

9.1 When a Pf is injured by an “employee” – wants to sue employer who can
pay compensation. The Pf has to first prove negligence / intentional tort on part
of employee. Then prove elements of vicarious liability against employer. A
form of strict liability – employer does not have to be at fault
9.2 The Focus is on how Courts look at POLICY to determine that employer-
employee relationship for the purposes of VL (esp. since nowadays a lot of
employment not long-term employment contracts)
Non-Delegable Duty or a “Direct” Duty

9.3 More onerous responsibility (higher standard of care) – special categories
like school-pupil, hospital-patient and employer-employee (3 accepted and
established categories). Pf has to prove negligence
9.4 Existence of duty depends on proximity (includes additional factors of control

of risk/source of danger and vulnerability) & public policy (Spandeck).
9.5 Duty requires positive action to take care for safety of Pf; Df can be liable
for omissions
When does VL apply?

9.6 Must have an “employer-employee” relationship – difficult to pin liability on
a statutory authority or institution that engage independent contractors for services.
Non-Delegable Duty or a “Direct” Duty

9.7 Usually argued in situations where independent contractor has caused
damage – not a separate tort. NDD entails “stricter obligations” than ordinary duty

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of care > requires taking of positive action in order to avoid harm. NDD can
impose a standard of care so high as to amount to strict liability > hence courts
are reluctant to find NDD.
PART A. VICARIOUS LIABILITY

Rationales
9.8 Skandinaviska (2011) at [92] ‘victim compensation’ and [93] ‘deterrence’.
*FOCUS on the POLICY CONSIDERATIONS
9.9 Elements of Vicarious Liability

(i) Existence of a special relationship (e.g. employer-employee, principal-agent)
Dispute is usually whether a borrowed employee or an independent
contractor may be deemed to be Df’s employee. General rule is one is not
liable for acts of independent contractor unless engaging in ultra-hazardous
activities; or there is a personal non-delegable duty. Burden is on
general/main/primary employer to establish that a transference has occurred.
(Note that this test will be automatically passed when there is a clear employer-
employee relationship)
 Control test
 Organization test
(ii) Connection to that relationship

 “In the course of employment” > “Closely connected” test
 Think of the sex abuse case - not really in the course of employment per se,
but still found for VL. Why? POLICY.
(iii) Wrongful Act

 Wrongful Act
 Negligence, intentional tort, or criminal wrong

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I. EXISTENCE OF A SPECIAL RELATIONSHIP
Ia. CONTROL TEST

9.10 Need to have (right to) control over METHOD of performance, insufficient to
have mere control over task
9.11 Distinction between skilled and unskilled workers – where borrowed

employees or independent contractors possess special skills, employers are less
likely to have control over method of performance (therefore, less likely to be
V/L)
Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC
1 (HL)
Facts A harbour authority let a mobile crane to a firm of stevedores for loading a
ship, providing a craneman who was employed and paid and liable to be
dismissed by the harbor authority, though the general hiring conditions
stipulated that cranemen so provided should be the servants of the hirers.
In the course of the operation he injured a third person by negligently
driving the crane. At the time the stevedores had the immediate direction
and control of the operation of picking up and moving each piece of cargo
but had no power to direct how the crane should be worked or the controls
manipulated. The injured person sued the harbour authority and the
stevedores for damages. [Harbour > Stvd > CraneMan -> VICTIM ; HA
liable]
Holding HL held harbor authority vicariously liable. No transfer of control and
therefore burden not discharged.
 Key consideration is stevedores had no CONTROL over how a

SKILLED worker does his work – distinction between skilled workers
and unskilled workers (employers of skilled workers less likely to have
control over method of performance)
 Lord Porter: “it is not enough that the task performed should be under

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his control, he must also control the method of performing it” >> control
over method of performance by skilled worker; exercise of rigourous
step-by-step control (check this in hypos before looking at kind of
control!). In this case, procedures were imported to operators by harbor
authority before operators were leased out to stevedoring companies.
Lord Macmillan (read by Lord Potter):

Control over method of performance – “how”, not “what”
 “The stevedores were entitled to tell him where to go, what parcels to lift
and where to take them, that is to say, they could direct him as to
what they wanted him to do; but they had no authority to tell him
how he was to handle the crane in doing his work.”
 “it is not enough that the task to be performed should be under his
control, he must also control the method of performing it. It is true
that in most cases no orders as to how a job should be done are given
or required: the man is left to do his own work in his own way. But the
ultimate question is not what specific orders, or whether any specific
orders, were given but who is entitled to give the orders as to how
the work should be done” (i.e. RIGHT TO CONTROL METHOD OF
PERFORMANCE)
Contractual term “servant” irrelevant

“Reference was also made to art. 6 of the appellant board's regulations
which states that drivers provided by the appellant board ‘shall be the
servants of the applicants,’ that is, of the parties to whom they are hired.
But this does not mean that the appellant board's drivers cease to be the
servants of the appellant board”
Burden of proof
Viscount Simon: “The burden of proof rests upon the general or permanent
employer to shift the prima facie responsibility to the hirer”.

137
9.12 Mersey Docks has been applied in Singapore in an unskilled worker

situation.
Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd [1997] 3
SLR 677 (SGCA)
Facts HDB > Shun Shing (main contractor) > Quickstart (subcontractor)
employed Pf – Office collapsed on him – Pf sues main contractor for V/L
[HDB > SS > Q  Awang (Pf)]
Holding Held: SS not an "employer" (note: apparently this case not a VL case but
relevant because affirmed Mersey Docks + apply CTRL)
 SS at the material time did not exercise, and did not have the right to
exercise, CONTROL over Pf in respect of the work he was engaged to
perform – Mersey Docks applied [19]
 Evidence showed that Quickstart the subcontractor had control – told Pf

“what to do and how to do the work”, was usually the one on-site [26]
 Unskilled worker situation – control lies with whoever is directly

supervising (in this case, foremen of Q)
Ib. ORGANISATION/INTEGRATION TEST
9.13 Has the borrowed employee or contractor been “integrated” into the
organisation? “Part and parcel” of the organisation? Usually used with CONTROL
– perceived to be inadequate on its own to determine issue.
9.14 More relevant in modern-day environment where control not be AS

major/relevant since supervisors/employers might be far away (still used
together with the CONTROL test though).

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Stevenson, Jordan & Harrison Ltd v Macdonald & Evans [1952] 1 TLR 101
(ECA)
Facts Not important
Holding Per Lord Denning:
“'It is often easy to recognise a contract of service when you see it, but
difficult to say wherein the difference lies. A ship's master, a chauffeur, and
a reporter on the staff of a newspaper are all employed under a contract of
service; but a ship's pilot, a taxi-man, and a newspaper contributor are
employed under a contract for services. One feature which seems to run
through the instances is that, under a contract of service, a man is
employed as part of the business; whereas, under a contract for
services, his work, although done for the business, is not integrated
into it but is only accessory to it.”
Ic. CONTROL + ORGANISATION TEST
Chua Chye Leong Alan v Grand Palace De-luxe Nite Club Pte Ltd [1993] 3 SLR
449 (SGHC)
Facts Df is owner/operator of nightclub, contracted with LSK (independent
contractor) who provided the car jockeys. Jockey lost key and BMW car. Pf
sued Df for V/L. [Nightclub > LSK > Car Jockey  Victim]
Holding Held, V/L for nightclub – jockey was a “servant” of Df.
 Affirmed Mersey Docks – distinction between skilled and unskilled

borrowed workers – car jockey is not a skilled worker; no equipment
involved here
 While HA had control over skilled workers in Mersey Docks, Df had

control over unskilled worker here

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 Df had “overall CONTROL” – “had the right to dictate the manner and
mode of their parking the cars of their customers”
 Jockeys have become “so much part of the ORGANISATION” – wore

uniforms
Id. DUAL VICARIOUS LIABILITY
9.15 Where right to control method of performance is shared. Dual VL is possible.

Task of the courts is to find who has effective control and not the (ONE) party who
has effective control.
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] 2 WLR 428
(ECA)
Facts Df1 engaged to install aircons in factory. Df2 subcontractor for ducting
works. Df3 supplied workers subject to control by both Df1 + Df2. Worker’s
negligence resulted in flood to factory.
Holding Held – Dual V/L for Df3’s workers imposed on Df1 + Df2, as right to control
method of performance is shared
 Can only have dual V/L if the right to CONTROL the method of
performance of employee’s duties is shared; focus is on the control of
the negligent act
 Rix LJ: May need to consider ORGANISATION in future scenarios.

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Ie. EXTRA-HAZARDOUS ACTIVITIES
9.16 Although employers may be V/L for harm caused by independent contractors
engaging in activities, which are exceptionally dangerous (near-strict liability), this
principle should be narrowly construed. Note: In such a case, don’t even need to
show effective control. (i.e. if you make victim do something so dangerous - too bad
even if you have no control, if anything happens, you will be vicariously liable)
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2009] 3 WLR
324
Facts As above. Is welding an ultra-hazardous activity?
Holding Held, welding is not an ultra-hazardous activity. OT not V/L.
 Honeywill (ECA-1934) decided that a person who engages a contractor

to carry out “extra-hazardous or dangerous operations” will be liable for
the negligence of that contractor – photographer ignited magnesium
powder in cinema
 Limited the principle which is “uncertain in nature” – “Much in life is

‘inherently dangerous’, even crossing the road” unless precautions are
taken
 Honeywill does not take into account precautionary measures.
 It should be “applied only to activities that are exceptionally

dangerous whatever precautions are taken” – welding per se in the
ball mill is not such an activity
“in our judgment the doctrine enunciated in [Honeywill] is so unsatisfactory

that its application should be kept as narrow as possible. It should be
applied only to activities that are exceptionally dangerous whatever
precautions are taken”

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Summary
 Is there a contract of employment vs contract for services?
 If borrowed employees, relationship satisfied if there is control over task,
manner/mode/method of performance; less control over a skilled worker (Mersey
Docks)
 Further test of integration into organisation can be used (Grand Palace)
 If independent contractor, rule is no V/L. But courts can still find ‘deemed
employee’ if
o there is control over manner/mode/method of performance
o there is integration into the organisation
o it was "fair, just and reasonable" - overt policy choices
II. CONNECTION TO THE SPECIAL RELATIONSHIP
9.17 This issue usually arises when the employer – or deemed employer – argues
that the wrongful act was not done “in the course of employment” or not within
the scope of the employee’s authority
9.18 The dispute is often an intentional act – examples:

o Disobeys employer’s instructions
o Fraud
o Trespass to customer or another (eg battery)
o Theft
o Harassment
o Sexual Abuse
o Note: Not so much an issue in situations of negligent conduct by
employees because Salmond formulation (below) is relatively
straightforward to apply in these situations.

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The traditional Salmond test (John Salmond, Law of Torts (1st ed, 1907) 83)
A wrongful act done by a servant is deemed to be in the course of employment if it is
either:
1) A wrongful act authorized by the master
2) A wrongful and unauthorized mode of doing some act authorized by the master
Salmond has intimated that a master is liable even for acts which he has not
authorized, provided
3) Wrongful act is “so connected” with acts which he has authorized that they may
rightly be regarded as improper modes of doing them (i.e. act in general was
authorized but the mode was improper; still liable but cases like sex abuse too
“out there” to fall into this 3rd category.)
This comment has been overlooked by courts for a long time, but has enjoyed a
recent renaissance in a revised form as the ‘closely connected’ test.
The modern Lister test – HL – “Close connection”

 Wrongful conduct so “closely connected” with what the employee was
142uthorized to do that it must be “fairly and properly be regarded” as done
by the employee while acting in the ordinary course of employment
 Policy considerations inherent in this approach – cover sex abuse cases in
schools and other institutions?
 Note that this test will sometimes impose liability on employer for intentional
wrongdoing by an employee. Focus is shifted from “mode” to determining
whether a “close connection” existed between the wrongful act and
authorized activities. (i.e. intentional act then ‘mode’ doesn’t really apply
compared to if it was negligence, maybe just did something wrongly
carelessly)
The Skandinaviska approach – SGCA (2011) – combining the Lister test with
the Bazley factors
SGCA in Skandinaviksa clarified Singapore law in this area and delivered a

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unanimous judgment that adopted the close connection test for all torts
committed by an employee. SGCA applied the Lister test articulated by the HL,
augmented by the five factors laid down in Bazley v Curry (Supreme Court of
Canada).
Iia. TRADITIONAL APPROACH – AUTHORISED ACT/MODE
9.19 The traditional approach focused on authorized act or mode of performance –

e.g. deliberate criminal act, deliberate act in fact of express prohibition of employer,
frolic and detour
FROLIC AND DETOUR
Crook v Derbyshire Stone Ltd [1956] 1 WLR 432
Facts Lorry driver stopped to get refreshments from café when delivering stones
to a site. Collided into motorcyclist when crossing the road. Employers
knew of refreshment stops, did not forbid. Accident occurred during
working hours. Pf sued employers for V/L for driver’s negligence.
Holding Held, no V/L.
Narrow view of V/L – act which is negligently performed must be an act

which servant was employed to perform. Lorry driver “was in no sense
of the word employed to cross the road” – he was “a stranger to his master
from the moment when he left the lorry”. (ridiculous?)
Courts departed from this narrow view later in Lister, Dubai Aluminium and
Mattis

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DELIBERATE ACTS DESPITE EXPRESS PROHIBITION

Rose v Plenty [1976] 1 WLR 141 (ECA)
Facts Milkman paid Pf (aged 13) to help collect and deliver milk bottles despite
employer’s prohibition that young persons should not be employed by
milkman in performance of his duties and that he should not give lifts on
the milkfloat to anyone. Pf fell off the float and was injured as a result of
milkman’s negligence. Sued both milkman and employer.
Holding Held, V/L
 Act was in the course of employment – the prohibitions affected only

the conduct of the employment and did not define or limit the scope of
his employment. The sphere of his employment remained precisely the
same after as before the prohibitions were brought to his notice.
 Although not employed to give child a lift, the act was “a mode, albeit a
prohibited mode, of doing the job with which he was entrusted”
 >> As long as it is a mode of performing job, then can find V/L

against employer
 DT: Policy choice? Courts tend to be sympathetic to children. Cf

Crook – no V/L although employer allowed. Here, employer expressly
prohibited but V/L found.
Ilkiw v Samuels [1963] 1 WLR 991 (ECA)

Facts Lorry driver under strict instructions not to allow anyone else to drive. He
allowed an incompetent sugar stacker to drive. Accident resulted.
Holding Held, V/L
Diplock LJ:
 What would have been the scope of employment had the prohibition not
been imposed?

145
 The prohibition did not limit the scope of employment, it only dealt
with the employee’s conduct within the scope of employment
 >> Similar to Rose: Mode of performing job – driving
Danckwerts LJ: Df was “responsible for the acts done in the present case
since it was a way of doing the job for which [the lorry driver] was
employed, though it was, in the circumstances, an 145nauthorized way of
doing it.”
DELIBERATE PRIVATE ACTS

Keppel Bus Co v Sa’ad bin Ahmad [1972-74] SLR 23 (PC)
Facts Assault case. Bus conductor hit passenger with ticket punch, breaking
glasses. Loss of sight in one eye.
Holding Held, no V/L
 The question is whether, on the facts, the act done, albeit

145nauthorized and unlawful, is done in the course of employment
 Narrow view of V/L – function of bus conductor is to manage the bus –

conductor’s act not an act of “quelling disorder” – use of insulting words
is not “part of the due performance of a conductor’s duty”
“keeping of order among the passengers is part of the duties of a

conductor. But there was no evidence of disorder among the
passengers at the time of the assault…to describe what he did in
these circumstances as an act of quelling disorder seems… to be
impossible…the evidence falls far short of establishing an implied
authority to take violent action where none was called for”

146
“There is no evidence that the plaintiff was interfering with the

conductor in his due performance of his duty. His interference, if so it
could be described, was a protest against the conductor’s insulting
language. Insults to passengers are not part of the due performance
of a conductor’s duty.”
 Unlikely to be followed today in the light of decisions like Lister, Dubai

Aluminium and Mattis
.
DELIBERATE CRIMINAL ACTS
Lloyd v Grace, Smith & Co [1912] AC 716 (HL)
Facts Theft case. Clerk persuaded a client to transfer property to him and then
disposed of it for his own advantage by a series of acts purporting to be in
his capacity as representative of the firm. Is the firm responsible for frauds
committed by the servant professing as clerk of the firm to transact
business for client?
Holding Held, V/L
 Client had been invited by firm of solicitors to deal with the clerk – had
apparent authority
 Employer may be V/L for the dishonest act of servant acting for his
own benefit
 Described as a “breakthrough” decision by Lord Steyn in Lister @ 224 >

gives HL additional support for imposing V/L in sexual abuse cases
where the employee is clearly acting for own benefit
“The decisive factor was that the client had been invited by the firm to
deal with their managing clerk. This decision was a breakthrough: it

147
finally established that vicarious liability is not necessarily

defeated if the employee acted for his own benefit.”
Morris v C W Martin & Sons Ltd [1965] 2 All ER 725, 736 (ECA)
Facts Another theft case. Pf wanted her mink stole cleaned, sent to furrier.
Furrier sent to cleaner. Employer in charge of fur stole it.
Holding Held: Vicariously liable. What employee was doing, albeit dishonestly, was
still within the course of employment
 Diplock LJ: the mere fact that his employment by Df gave him the
opportunity to steal would not suffice … act must be committed “in the
course of doing the class of acts which the company had put the
servant in its place to do”
i.e. not only was there an opportunity for her to steal it because she was
there, her job itself was to handle the thing -> connection, wrongful act
done in the midst of doing what she was obligated to do as part of the
job
 Salmon LJ: No V/L if another servant had stolen
No V/L if some other employee of the cleaner, who had no

responsibility connected with the fur, had stolen it. All employees of the
cleaner would have been under an obligation not to damage or steal the
fur, and would have been personally liable if they had damaged or
stolen it. But the employer was vicariously liable only for the
conduct of the employee whose employment duties involved
physical possession of, and dealing with, the fur.

148
Iib. DEVELOPMENT OF THE “CLOSE CONNECTION” TEST
9.20 Lister “close connection” test

Lister v Hesley Hall Ltd [2002] 1 AC 215 (HL)
Facts Warden of boarding house sexually abused 12-15 y/o young boys. Not
acts authorized by employer. What is the appropriate test? Bazley
considered (sufficient connection + policy).
Holding Held, boarding house V/L
Lord Steyn (with Lord Hutton agreeing):

 V/L can cover intentional wrongdoing by employee
“the law of vicarious liability sometimes may embrace intentional
wrongdoing by an employee”
 Reviewed past cases: Salmond test cannot be applied to certain cases

– impossible to hold that “the commission of acts of indecent assault
can be regarded as a mode, albeit an improper or unauthorised mode”
of doing authorized acts
 ***Should ask whether such acts arise directly out of circumstances

closely connected with the employment that it would be fair and just
to hold the employers V/L
“The question is whether the warden's torts were so closely connected
with his employment that it would be fair and just to hold the
employers vicariously liable.”
Lord Clyde:
 Time and place > opportunity – does not in itself constitute a sufficient
connection between warden’s wrongful act and his employment (more
restrictive approach)
 However, “his position as warden and the close contact with the

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boys which that work involved created a sufficient connection

between the acts of abuse which he committed and the work which he
had been employed to do” (key was the power relationship)
 For intentional wrongdoings, the “context and circumstances” are

important
 Cited Bazley v Curry (1999) 174 DLR (4th) 75 (Supreme Court of

Canada), where employee of a children's foundation who had been
engaged to act as a parent-figure caring for emotionally troubled
children in a children's home sexually abused them. Foundation was
held vicariously liable. “The careful and comprehensive discussion of
the problem by McLachlin J was presented in the context of policy
considerations, but the essence of the decision seems to me to lie in
the recognition of the existence of a sufficient connection between
the acts of the employee and the employment. This in turn was
explored by reference to various factors by reference to which the
strength of the connection can be established.”
Lord Millet:
 That the warden’s duties > opportunity for his assaults is an insufficient
connection. What was key here was the “special position” where he
was “entrusted with responsibility for the care and welfare of boys”
 V/L can cover intentional criminal wrongdoing

“The law is mature enough to hold an employer vicariously liable for
deliberate, criminal wrongdoing on the part of an employee without
indulging in sophistry of this kind. “

150
IIc. SGCA ADOPTS AND CLARIFIES THE “CLOSE CONNECTION” TEST
Skandinaviska Enskilda Banken AB v Asia Pacific Breweries (S) Pte Ltd [2011]
SGCA 22, [65]-[96]
Facts Elaborate fraud by employee of APB on two foreign banks eager to secure
a banking relationship with APB. Banks extended substantial credit
facilities to APB, relied almost entirely on representations made by Chia
(finance manager at APB). Banks failed to exercise own due diligence.
Holding Held, no V/L
 Close connection test from Lister applied;

 To be applied for “all torts committed by an employee during an
unauthorized course of conduct, whether intentional wrongdoing
or mere inadvertence is involved”
 At [75] – court to examine all the relevant circumstances – including
policy considerations – and determine whether it would be fair and
just to impose V/L on the employer
Essentially, test will involve two elements for policy consideration:
compensate victim and deterrence
 Two key policy considerations: “effective compensation for the
victim” (includes enterprise risk) and “deterrence of future harm by
encouraging the employer to take steps to reduce the risk of
similar harm in future”
Effective compensation for the victim

o An innocent victim of an employee’s tort should, under ordinary
circumstances, be compensated. Employer is usually the person
best placed and most able to provide effective compensation to
the victim.
o Enterprise risk: A person who employs another to advance his own
interests and thereby creates a risk of his employee committing a
tort should bear some responsibility for any adverse consequences

151
resulting therefrom.
o Precondition for the imposition of V/L is that the victim seeking
compensation should either be without fault himself, or be less at
fault than the blameworthy party and/or the ultimate Df; otherwise,
the policy of victim compensation as a justification for imposing V/L
losses much of its moral force. (Safeguard against strict liability
nature of V/L.)
Deterrence of future harm

o Penalising an employer for his employees’ torts will provide him with
an incentive to take steps to reduce the incidence of accidents and
tortious behavior by his employees. Aimed at promoting efficiency in
business enterprises.
o Rests on the fundamental premise that the employer is best place,
relative to everybody else, to manage the risks of his business
enterprise and prevent wrongdoing from occurring.
o This premise will hold true in most cases, but may not apply in
situations where (1) person best placed (or at least better placed)
to prevent the tort may well be the victim himself or a third
party or (2) where the type of tort that occurs is uncontrollable
and therefore not amenable to deterrence (e.g. excessively risky
business enterprises, spur-of-the-moment torts and intentional
torts). In such situations, may well be possible that employer has
done all that is reasonable to deter the tort and yet has failed to
prevent the commission of the tort – deterrence as a justification
for imposing V/L losses much of its force.
SGCA concluded that the two policy considerations are not in

themselves determinative of every case – i.e. applicability of both
considerations does not inevitably lead to a finding of V/L. May well be
other potentially relevant policy considerations which may act as a
counterweight to victim compensation and deterrence. CA held it

152
impossible to list all of these factors. “Each case must be decided on

its facts”, but in the final analysis, the ultimate goals of FAIRNESS
and JUSTICE must be paramount.
 At [87] – Five factors from Bazley relevant in determining whether the

requisite degree of connection exists in a particular case
The 5 Bazley factors are:

(a) the opportunity that the enterprise afforded the employee to
abuse his or her power;
(b) the extent to which the wrongful act may have furthered the
employer’s aims (and hence be more likely to have been committed
by the employee);
(c) the extent to which the wrongful act was related to friction,
confrontation or intimacy inherent in the employer’s enterprise;
(d) the extent of power conferred on the employee in relation to the
victim;
(e) the vulnerability of potential victims to wrongful exercise of the
employee’s power.
(Note: Factors are just relevant for consideration, don’t be too
concerned if not all are applicable (especially (b) – will rarely apply). CA
did not itself go through all the factors in great detail (focus was on (d)
and (e))
In cases involving sexual abuse of young and vulnerable victims like

Lister and Lepore, most of the 5 factors are met
But for commercial fraud cases, court will examine whether the
claimant could have prevented the fraud by taking basic precautions
On the facts of the case

 Policy #1 – Victim compensation (and enterprise risk) – Not relevant.
Banks have “all the means and resources, both admin and legal, to

153
protect themselves from fraudulent acts”. V/L not justified if victim bears
more fault for the tort than the ultimate defendant.
 Policy #2 – Deterrence – Works both ways. May induce employers to
take more stringent measures when appointing officers or supervising
activities; but greater need for banks to act responsibly and be more
diligent. Appellant could have prevented the fraud by taking very
elementary precautions.
 Bazley factors – except for first factor (“at most only tenuously
present”), none of the other 4 factors are present.
Miscellaneous notes
 Special relationship not discussed because there was a clear employer-
employee relationship (i.e first part of this chapter – the
“Control+Organisation” / “Akin to employment”
 “Close connection” test conceptually similar to Spandeck test – if a
claim based on V/L fails “close connection” test, unlikely that it will pass
the Spandeck test vis-à-vis a claim in negligence. (I.e. company
negligent in protecting the banks) Courts should be slow to find liability
under one doctrine when they are unable to find a corresponding
liability under the other: at [84].
Summary
 SGCA – Skandinaviska – the authority
 Lister test
 Policy considerations
o Victim compensation
o Enterprise risk
o Deterrence

154
III. WRONGFUL ACT BY EMPLOYEE
9.21 Uncontroversial requirement -

 Employee’s wrongful act can be tortious or criminal
 Liability or guilt must first be established by the Pf against the actual
wrongdoer
 If negligent act is complained of, Pf must prove all elements of duty against
actual wrongdoer before the question of V/L can arise
 However, in a situation of NDD, a separate inquiry may be conducted to
determine if the employer was directly liable
Skandinaviska Enskilda Banken AB v Asia Pacific Breweries (S) Pte Ltd [2011]
SGCA 22, [65]-[96]
Facts Elaborate fraud by employee of APB on two foreign banks eager to secure
a banking relationship with APB. Banks extended substantial credit
facilities to APB, relied almost entirely on representations made by Chia
(finance manager at APB). Banks failed to exercise own due diligence.
Holding Held: No vicarious liability. At [75] – the close connection test should be
applied for “all torts committed by an employee … whether intentional
wrongdoing or mere inadvertence is involved”.

155
CHAPTER 10
TRESSPASS TO LAND & NUISANCE
GENERAL
Legal Personal
Interest Injuries Damage Frequency Other Features
in land claims
Private YES (Must be
YES NO - -
Nuisance foreseeable)
Crime of Public
YES (if 1. different/
Nuisance MAY
NO YES greater from others,
Public need be committed
2. foreseeable)
Nuisance (In Re Corby)
Rule in YES
NO (Now YES (Now has to Usually Non-natural use of
Rylands v. (Now
cannot) be foreseeable) one-off the land required
Fletcher needed)
YES (Must be Usually Negligence (fault-
NO YES
Negligence r.foreseeable) one-off based) required
Intention required
Usually
Trespass YES - Actionable Per Se and act must be
one-off
to Land direct

156
PRIVATE NUISANCE
10.1 Definition: Private Nuisance is the unlawful damage to, or substantial
interference with the use and enjoyment of land.
10.2 Purpose of the tort is to balancing the rights of D to do what he wants in his
land against the rights of P to not suffer damage or unreasonable interference in
his land.
10.3 The plaintiff must prove 4 ingredients of the tort:

o The plaintiff has proprietary interest or possessory rights over the land
o Actionable damage either in form of property damage to fixtures but not
chattels or unreasonable interference with one’s amenity or use of land
o Remoteness requirements of foreseeability
o Active emanation of dust, noise, smells as opposed to a mere
static/passive source of nuisance
Hardie Boys J in Bank of New Zealand v Greenwood at 530:

“ … nuisance is one of those areas of the law where the Courts have long been
engaged in the application of certain basic legal concepts to a never-ending variety
of circumstances; and that will continue to be so, for by its very nature the law of
nuisance is intimately involved with the developing use of the environment, both
naturl and manmade, in which we all live”
GENERAL ASPECTS OF PRIVATE NUISANCE
10.4 Interest protected:

(i) Physical Damage
 Encroachment on property; damage to land trees, house
(ii) Amenity Damage
 Interference with right of way or light (but not view)
 Interference with comfort or enjoyment

157
Hunter v Canary Wharf [1998] 1 WLR 434 House of Lords
Facts: 690 claims were made against Canary Wharf ltd. The claimants lived in the
Isle of Dogs and complained that the erection of the Canary Wharf Tower interfered
with their television reception. In addition, a second action against London
Docklands Development Corporation involved 513 claims for damages in respect of
excessive amounts of dust created during the construction of the tower. Some of
the claimants were owners or tenants of properties, but many of the claimants had
no proprietary interest in lane at all. Some were children living with parents, some
were relations or lodgers with use of a room and some were spouses of the tenant
or owner of the property. The two issues the House of Lords were required to
consider were:
1. Whether interference with television reception was capable of giving rise to
an actionable nuisance
2. Whether an interest in property was required to bring an action in
Held: There is no right of action in nuisance for interference with the television
reception. An interest in property is required to bring an action in nuisance.
Lord Hoffman:
“In this case, however, the defendants say that the type of interference alleged,
namely by the erection of a building between the plaintiffs' homes and the Crystal
Palace transmitter, cannot as a matter of law constitute an actionable nuisance.
This is not by virtue of anything peculiar to television. It applies equally to
interference with the passage of light or air or radio signals or to the obstruction of
a view. The general principle is that at common law anyone may build whatever he
likes upon his land. If the effect is to interfere with the light, air or view of his
neighbour, that is his misfortune. The owner's right to build can be restrained only
by covenant or the acquisition (by grant or prescription) of an easement of light or
air for the benefit of windows or apertures on adjoining land.”

158
THE NATURE OF THE CONDUCT INVOLVED
10.5 GENERAL RULE: Private nuisance are a “strict liability” tort since their focus
is on the P’s damage rather than on D’s conduct. Thus, for claim to be actionable,
one has to prove damage but not fault.
o However, damage must be reasonably foreseeable (Wagon Mound No.
2; Cambridge Water Co v Eastern Counties Leather)
o Private nuisance may be a near-strict liability tort where in certain cases
where D did not himself create the nuisance, some degree of responsibility
may be required
The Wagon Mound (No. 2) (1966)

 D negligently spilled some bunkering oil. Oil drifted to P’s wharf, P was told that
flammability of bunkering oil in seawater was low and thus allowed welding works
at his wharf to continue. Fire broke out and wharf was destroyed by fire. P not
happy and sued D.
 YES: Nuisance created damages of a type that is reasonably foreseeable.
Cambridge Water Co Ltd v. Eastern Counties Leather plc (1994)

 Chemicals from D’s tannery contaminated P’s borehole when the contaminants
seeped into the ground water.
 HELD: Claim in nuisance failed because damage was not of a type that D could
have foreseen.
Sedleigh-Denfield v. O’Callaghan (1940)

 Local authorities built a culvert in D’s ditch, upon D’s request, so that water can
be drained away. Local authorities were negligent and built a culvert that was
prone to blockages. D’s workers cleaned the culvert regularly to prevent
blockages, but a heavy rain storn caused a blockage and resultant flood caused
substantial damage to P’s land. P sued D for damages. D claimed that he had
neither consented to nor known of the existence of the

159
 YES: D continued and adopted the nuisance. After the lapse of nearly 3 years, D
failed to correct the blockage. The damage was of a type foreseeable by D.
WHO CAN BE SUED?
10.6 Generally, the occupier of a place can be sued for the nuisance created on his
land.
10.7 A LANDLORD is generally not liable for the tenant’s nuisance unless:
o 1. Landlord authorised the nuisance
o 2. Nuisance existed before the letting
o 3. Landlord exercises continued control over the land
10.8 An EMPLOYER can be sued for nuisance created by an employee, or by an

independent contractor under a non-delegable duty
10.9 An OCCUPIER can be sued for nuisance caused by a trespasser if he

“adopts” or “continues” the nuisance, or for nuisance created by a supervening
natural event if he is aware and yet failed to act with reasonable care in removing
the nuisance
10.10 A LOCAL AUTHORITY can be sued if they facilitated nuisance committed by

persons who are not lawful occupiers of his land. However, some cases suggested a
more generous approach to local authorities.
TYPES OF ACTIONABLE DAMAGE
1. PHYSICAL DAMAGE OR ENCROACHMENT ON LAND
10.11 GENERAL RULE: Physical damage, including damage to property and

encroachment to land, will likely succeed so long as physical damage is not
insignificant. Damages to chattels are usually not recoverable unless they are
consequential damages from property losses.

160
St Helen’s Smelting Co v. Tipping (1865)
Facts: The noxious fumes emanating from D’s smelting works damaged P’s trees.
P sued in private nuisance. D pleaded that it is an industrial area and fumes are
inevitable.
Held: D liable in private nuisance, because the noxious fumes did material physical
damage to P’s land.
2. UNREASONABLE INTERFERENCE WITH USE AND ENJOYMENT OF LAND
10.12 GENERAL RULE: Courts will allow compensation for amenity losses and
interference with use and enjoyment of land that are unreasonable (Halsey;
Andreae).
 This involves balancing competing interests of the claimant and defendant by a

consideration of various factors such as locality, nature, frequency and duration
of the interference, defendant’s motive (Christie v Davey). Other factors such as
social utility (Miller) and plaintiff’s special vulnerabilities (Kilvert) (unless he can
prove that an ordinary person would have suffered the same harm anyway
(McKinnon)) do not hold much weight in establishing unreasonable interference.
It often boils down to a matter of “give and take as between neighbouring
occupiers of land” (Cambridge Waters)
 For noise complaints, especially those emanating from construction sites, it must
be proven that noise is unreasonable (either in nature, frequency, duration) for
the claim to succeed.

161
 In Singapore, the NEA allows construction work at any time of day as long as it
does not exceed fixed levels. Loud work is permitted only between 7 am and 7
pm, but quieter construction work may be carried on into the night. No
construction work is allowed on Sundays or public holidays for sites within 150
metres of residential or noise-sensitive premises. There might be a distinction
between noise-sensitive premises
10.13 The LOCALITY and the NATURE, FREQUENCY and DURATION of the
interference
Andreae v. Selfridge & Co Ltd (1938)

Facts: D’s building construction interference with P’s hotel operations.
Held: The Court allowed the claim in nuisance because defendant’s behavior
was found not to have exercised reasonable care and skill in minimizing
nuisance. Reasonable actions take the form of restricting hours during which
work is to be done; limiting amount of a particular type of work that is being done
simultaneously; using proper scientific means of avoiding inconvenience.
10.14 The DEFENDANT’S MOTIVE
Christie v. Davey (1893)
Facts: D exasperated with P’s piano teachings, banged pots and pans on the
shared wall and shouted. P sued in private nuisance.
Held: YES: D liable for nuisance. Noise was made for the illegitimate purpose of
annoying the plaintiffs, thus malicious motive converted the otherwise unactionable
nuisances into actionable.

162
10.15 The SOCIAL UTILITY of the interference (generally irrelevant)
Miller v. Jackson (1977)
Facts: P’s property was damaged when cricket balls were hit out of the grounds 8 or
9 times a season. High fence erected by D did not prevent these since the pitch was
too close to P’s property.
Held: D liable for each occasion a ball comes over the fence and causes damage.
Refused to provide an immediate injunction due to policy consideration that cricket
is an important social utility. “However, I would postpone the operation of the
injunction for 12 months to enable the defendants to look elsewhere for an
alternative pitch.”
10.16 The SENSITIVITY OF THE PLAINTIFF (generally irrelevant)
Robinson v. Kilvert (1889)
Facts: Heat from D’s manufacturing plant damaged P’s delicate special brown
paper.
Held: NO: The court found that P only suffered damage because his trade was
“exceptionally delicate” (Lopes LJ at 97). Furthermore, D was not aware that P
intended to store such special paper on the premises. Hence, D’s action is still
lawful.

163
DEFENCES
1. 20 YEARS’ PRESCRIPTION
If one had been able to tolerate the nuisance for twenty years, he would be barred
from claiming in nuisance another regular individual.
2. COMING TO THE NUISANCE

The fact that the plaintiff “came to” the nuisance generally does not barr the plaintiff
from sueing.
3. STATUTORY AUTHORITY
Allen v. Gulf Oil (1981)
 A test case in which P, residents in the vicinity of an oil refinery, D, brought an

action in private nuisance.
 NO nuisance: The defendant was not liable as it had a defence of statutory
authority. D cannot be liable for the inevitable consequences unless it is
unreasonable and beyond the scope of what is reasonably acceptable.

164
REMEDIES
(1) DAMAGES
10.17 GENERAL RULE: Damages are a remedy as of right and it is the most usual
remedy in tort cases. However, due to the special nature of the tort of nuisance,
remedies by damages often do not resolve the basic complaint of the plaintiff, and
injunctions may be more appropriate.
 However, one cannot claim damages for chattels unless the damage to chattels
are consequential to the damages to land. (Hunter v Canary)
 Further, one cannot claim damages to personal injuries in actions of private
nuisance (Hunter v Canary; In re Corby)
(2) INJUNCTIONS
10.18 GENERAL RULE: Injunctions are an equitable and discretionary remedy,
and not a matter of right.
 Although injunctions are discretionary, courts usually issue it only if it’s a realistic
remedy to a ongoing complaint of nuisance. The courts will however, rarely
impose absolute injunctions if there are other means, by damages or by specific
performance, to resolve the complaint.
 Courts are less willing to impose absolute injunctions if:
o Damage of interest is not significant
o Damage capable of monetary calculation
o Damage may be adequately compensated with money or other means
o Injunction would be oppressive to D
(3) ABATEMENT
10.19 Court permission for P to take matters in their own hands to remove the
nuisance or taking personal measures in preventing the nuisance.
 Usually allowed when it is reasonable, such as cutting off an overhanging branch
etc.
 A form of self-help that is not favoured by the courts.
 Burton v. Winters (1993)

165
o D’s garage extended 4.5 inches into P’s property. P failed to get injunction,
so she built a counter-wall.
o NO: D not liable in nuisance and P is not allowed to take positive action on
D’s land (constitutes trespass).

166
THE RULE IN RYLANDS v FLETCHER
10.20 GENERAL RULE: A landowner may be held strictly liable for a non-natural
use of his land that causes damage to his neighbours via the escape of a damage-
causing agent.
 Key elements:
o 1. D “bringing” the subject matter(s) onto his land.
o 2. Non-natural use
 “A useful guide in deciding whether the risk has been created by a
“non-natural” user of land is… to ask whether the damage which
eventuated was something against which the occupier could
reasonably be expected to insure himself” (Lord Hoffmann, Transco
at 1484)
o 3. Escape
o 4. Foreseeability as introduced in Cambridge Waters.
THE POSITION IN SINGAPORE
10.21 The court preferred to retain the rule in Rylands v. Fletcher as a unique law
that is part of Private Nuisance. In Tesa Tape, Choo J affirmed the English position
as per Transco v. Stockport Metropolitan Borough Council on the reason that
“liability in negligence is naturally fault based whereas that is not so in all cases in
nuisance, nor in Rylands v. Fletcher”.

167
Tesa Tape Asia Pacific Pte Ltd v. Wing Seng Logistics Pte Ltd (SGHC 2006)
Facts: D’s stacked containers fell on P’s land during a thunderstorm and
damaged P’s property. P sued on Ryland v Fletcher, Nuisance, and Negligence.
D pleaded these were force majeure events and cannot be held liable.
Held:
(1) Nuisance: SUCCESSFUL
o Stacking of containers per se did not constitute unreasonable use of
premises. However, as stacking was unsafe, liability in nuisance arose.
(2) Negligence: SUCCESSFUL

o It was foreseeable that if boxes fell, they could damage claimants’
diesel storage tanks. Thus, D owed P DOC, which was breached by
failing to take reasonable steps to minimize the foreseeable risks.
(3) Ryland v Fletcher: SUCCESSFUL

o D is liable. Held that “the stacking of containers of such weight and size
as those on the defendant’s premises to a height of seven tiers was a
non-natural use of the land, even though the land was designated for
industrial use. Additionally, the collapse of the containers into the
plaintiff’s yard constituted an escape of a thing brought by the
defendant onto its land. Finally, damage and injury were
foreseeable should the defendant’s containers fall onto the
neighbouring land and therefore the collapse of the containers into the
plaintiff’s premises attracted the application of the Rule”.
o Non-natural use – stacking containers of such size and weight to such
a height
o Escape – falling into P’s land
o Damage – physical damage to P’s diesel storage tanks

168
PUBLIC NUISANCE
10.22 Plaintiff can establish a tort in public nuisance, if he can show that he had
suffered special damage over and above the ordinary damage suffered by the public
at large.
 Has to be so widespread in its range or so indiscriminate in its effect that it would

not be reasonable to expect one person to take [legal] proceedings… but that
should be taken on the responsibility of the community at large.
 Advantageous as opposed to claim in private nuisance because it does not
require an interest in land, and P can recover for personal injuries, even if the
damage is due to his unique sensitivities (subject to rule on foreseeability).
 The act need not be a crime in itself, it becomes unlawful once it affects a body of
the public in an adverse way.
 Statutorily embodied in the Penal Code, s. 268
o A person is guilty of public nuisance if his act or omission causes an injury
to the public and the people who in general, dwell in the vicinity. (The
crime of public nuisance has to be committed, if fails, unlikely to claim.)
o A common nuisance is not excused on the ground that it causes some
convenience or advantage (similar to social utility argument in private
nuisance)
In re Corby Group Litigation (2009)
Facts: Toxic emissions led to a number of deformed births in the area. Group
action against local authorities for allowing steel works to work without proper
environmental monitoring.
Held: YES: D liable in public nuisance.

169
TRESSPASS TO LAND
10.23 Trespass to land is the DIRECT, POSITIVE and UNAUTHORISED

interference with another’s land.
 Trespass to land is actionable per se without proof of damage. (as distinct from
Rylands v Fletcher, private and public nuisance)
 Trespass is rarely, though not always, a crime.
10.24 INTENTION:
 Deliberate entry onto the land is sufficient, it is irrelevant to show that D did not
know that he was trespassing.
 Requires the intention to be on land and this is not = the intention to trespass.
 Trespass can be committed innocently, however cannot be conducted
involuntarily since involuntary intrusion is not intentional and is thus not
actionable.
Kelsen v. Imperial Tobacco Co Ltd (1957)

Facts: D’s sign projected over P’s land.
Held: YES: Fact that damage suffered was small and immaterial as long as it is
trespass, which is actionable per se, and this extends to the airspace above the
property.
MCST Plan No. 549 v. Chew Eu Hock Construction Co Pte Ltd (1998)
Facts: D was conducting construction work and parked on a shared driveway owned
by the P. P sued in trespass due to the inconvenience caused by the parking on the
driveway.
Held: YES: Ease of access granted by P for D to access his own plot of land did not
include the right to park on the common property of the driveway.

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1

TORT LAW & THE

WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD

Chapter Description Page

1 Introduction & Duty of Care 3

2 Duty Of Care: Special Situations 21

4 Causation & Remoteness Of Damage 50

8 Occupier’s Liability 109

9 Vicarious Liability 133

10 Tresspass to Land & Nuisance 155

WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD

Donoghue v Stevenson [1932] AC 562

Donoghue v. Stevenson, also known as the ‘snail in the bottle case’, is a

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Stevenson’s lawyers challenged Donoghue’s action, on the basis that no

The outcomes of Donoghue v. Stevenson established several legal principles

WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD

(3) Neighbour principle. Thirdly, the Donoghue v. Stevenson case produced

1.2 The law of negligence in Singapore is based largely on English law,

A. Requirements of a tort: claimant must have suffered recoverable

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SECTION 2 DUTY OF CARE: TESTS FOR ESTABLISHING DUTY

(2) Factors influencing the existence of a duty

1.5 The question of whether or not a duty exists is influenced by a number of

WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD

Donoghue v Stevenson – The Neighbour Principle

The Anns Two-stage Test

(1) Two stages: proximity based on foreseeability of harm and considering of

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Anns v Merton London Borough Council [1978] A.C. 728

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WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD

The 'Anns Test' established here by Lord Wilberforce is a two-stage test.

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(2) Difficulties arising from the two-stage test

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The Caparo Three-part Test

Caparo Industries Plc V Dickman [1990] 2 AC 605

Facts: Shareholders in a company bought more share and then made a

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(1) Firstly, it should be considered whether the consequences of the defendant’s

(2) Difficulties arising from the three-part test

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APPROACH IN SINGAPORE: THE SPANDECK TEST

(1) Establishing duty in Singapore prior to the Spandeck test

In the subsequent case of RSP Architects, Planners & Engineers v

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WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD

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Spandeck Engineering (S) Pte Ltd v Defence Science &

Case Number : Civil Appeal No 3 of 2007

Decision Date : 08 August 2007

Tribunal/Court : Court of Appeal

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WALTER FERIX SILVESTER & LEGAL LEARNING LABS PTE LTD

Held, dismissing the appeal:

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DUTY OF CARE NORMALLY HELD TO EXIST IN STRAIGHTFORWARD

2.1 A duty of care will normally be held to exist in straightforward cases

SITUATIONS WHERE COURTS DO NOT RECOGNISE DUTY BECAUSE OF

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