TORT OF NEGLIGENCE

A. ELEMENTS OF THE TORT OF NEGLIGENCE

1. Defendants owed a duty of care to Plaintiff2. Defendant breached duty of care.3. Plaintiff suffered damage as a result of the breach and can sue for compensation.4. There is no defence to plaintiff’s claim.

(1) DEFENDANTS OWED A DUTY OF CARE TO PLAINTIFF (UK)

1.1 The Neighbouring Principle

In Donoghue v Stevenson Lord Atkin: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. 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 reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

Viewed as “pure forseeability test”. Useful for physical damages but too wide to cover economic loss. (BPL 19.7)

Donoghue v Stevenson (1932)

Facts : Appellant drank a bottle of ginger beer bought by friend. Found partially decomposed snail at bottom of bottle. Claimed she suffered gastroenteritis as a result.

Judgement : Manufacturer was liable by “neighbouring principle”.

Spartan Steel and Alloys Ltd v Martin &Co Ltd (1973):

Significance: “Pure forseeability test” is too wide.

Facts : Defendant’s employees negligently damaged a cable while repairing a road. Led to power cut in Plaintiff’s factory.

Judgment : Physical Damage to P’s product – allowed claim for the loss of profit. Loss of further profit – disallowed as on the ground of pure economic loss.

Significance : Arguing on whether EL was foreseeable and direct. Lord Denning MR deems existence of duty in EL is a question of public policy.

1.2 The ‘Three-Part’ Test (from the Caparo case)

A. ProximityB. Foreseeability (from neighbour principle) C. “Fair, just and reasonable”.

Caparo Industries Plc v Dickman (1990): (Benny p 487, 18-411)

Significance : Creation of the “three-part test”

Facts : Plaintiffs (the company) brought an action against the defendants (directors and auditors of a company that was subject of take-over). Because of report on status of company, they purchased more shares, ultimately taking over the company. Claim reports are misleading.

Judgment : Defendants were not liable – no duty of care. Reports were published to enable people to exercise them accordingly and not for the view of individual profit.

TCH’s Seminar Outline:

“[I]n addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.”

1. Meaning of proximity (in Tabalujan):o Sense of closeness between person who owes and person who is owed duty of care. Can

extend beyond physical closeness.

2. Meaning of fair, just and reasonable

o No one knows what it means – BPL 19.25, Pg 522o Best viewed as public policy

ELEMENTS OF NEGLIGENCE (1.1): DEFENDANTS OWED A DUTY OF CARE TO PLAINTIFF (SINGAPORE)

A. Endorsed “three part test” in Ikumene Singapore Pte Ltd v Leong Chee Leng. (BPL 19.3)

Ikumene Singapore Pte Ltd v Leong Chee Leng(1993): (Benny, Pg 488, 18-414)

Significance : endorsed “three part test” – no duty of care on part of auditor to guarantor of company.

Other cases : Swiss Singapore Overseas Enterprise Pte Ltd v Horng Chang Enterprise Pte Ltd (1993)Standard Chartered Bank v Coopers & Lybrand (1993) (Benny, Pg 488, 18-414)Mohd bin Sapri v Soil-Build (Pte) Ltd (1996)

B. Appeared to use “two-stage test” in RSP Architects Planners & Engineers v Ocean Front Pte Ltd(1996) but in RSP Architects Planners & Engineers v Management Corporation Strata Title Plan No 1075 courts claimed they had not applied 2-stage.

Either: (1) court applied two-stage from AnnsOr (2) court applied “three-part” in two stages.

(Variation: proximity by policy instead of foreseeability by policy.)

RSP Architects Planners & Engineers v Ocean Front Pte Ltd(1996)

Significance : Courts view of ‘two stage test’ in Anns – Lord Wilberforce’s test was ‘purely obiter’ and allowed for claim under Economic Loss. Seemed to apply “two stage”.

Facts : Plaintiff management corporation of a condo brought an action against defendant (developers) for faulty construction resulting in concrete spalling in ceilings of basement carparks and water ponding of common areas and corridors around life lobbies. (developers joined architects as 3rd parties). Purely Economic Loss

Judgment : According to Murphy, courts should disallow. But courts held that defendants owed duty of care to plaintiffs to exercise reasonable care to avoid damage that has been sustained. Proximity – sufficient by five reasons. (BPL Pg 524, bottom of page). Court considered

relationship of parties. Fair, Just and Reasonable – courts “consider whether there is any policy consideration

in negativing such duty of care”. Foreseeability – did not adopt (at the 1st stage) a test of foreseeability in literal sense but

did consider relationship between parties.

Quote from LP Thean JA: “But the approach of the court has been to examine a particular circumstance to determine whether there exists that degree of proximity between the plaintiff and the defendant as would give rise to a duty of care by the latter to the former with respect

to the damage sustained by the former. Such proximity is the “determinant” of the duty of care and also the scope of such duty”.

Cases Considered: Australian – Bryan v Maloney (1995) – expressly declined to follow Murphy.

New Zealand – Invercargill City Council v Hamlin (1996)Canada – Winnipeg Condominium Corp No 36 v Bird Construction Co

(1995)

RSP Architects Planners & Engineers (Raglan Squire & Partners FE) v Management Corportation Strata Title Plan No 1075 (1999):

Facts : also defective construction in condo. Plaintiffs – management corp. Defendants – architects and main contractor who joined as 3rd party. There was physical damage in roof and contents of unit but main expenses were rectification was wall claddings which had not yet fallen to avoid future injury to people and/or damage to property. Pure economic Loss

Judgement : expressly rejected ‘two stage test’ in Anns.

Quote from LP Thean JA: “It is abundantly clear that in Ocean Front this court did not follow the broad proposition laid down by Lord Wilberforce in Anns. True, the court reached its conclusion by a two-stage process. In principle, there is no objection to such an approach. It depends on what is involved and considered in each stage. The court certainly did not apply the first test in Anns. The court’s finding that there was sufficient degree of proximity giving rise to a duty on the part of the developers to avoid the loss sustained by the management corporation was not premised on foreseeability of damage alone, but on consideration of other relevant facts. Nor did the court accept Lord Wilberforce’s proposition that in any given situation a single general rule or principle can be applied to determine whether a duty of care arises. It does not follow from the mere fact that the court in the course of their determination examined the facts by the two-stage process that the court in effect followed Anns.”

“Stripped of the verbiage, the crux of such approach is no more than this: the court first examines and considers the facts and factors to determine whether there is a sufficient degree of proximity in the relationship between the party who has sustained the loss and the party who is said to have caused the loss which would give rise to a duty of care on the part of the latter to avoid the kind of loss sustained by the former. … Next, having found such degree of proximity, the court next considers whether there is any material factor or policy which precludes such duty from arising.”

Duty of care owed by defendants to plaintiffs – architects assumed responsibility of professional competence to exercise reasonable care and skill.

Proximity: ‘architects knew management corporation would be in charge and would be managing the common property and would depend on their care and skill in the design and supervision of construction of common property’ sufficient proximity in relationship to give rise to a duty on part of architects.

Fair, Just and Reasonable: refer to Bryan v Maloney (1995)

(1) Investment in real property is likely to represent significant (if not most significant) investment in an individual’s lifetime. More money invested than a chattel.

(2) Permanence of structure – great expectation than chattel. Applies in Singapore where land is scarce and expensive.

Also in Bryan v Maloney (1995),“difficult to see why…a negligent builder should be liable for ordinary physical injury caused to any person or to other property by reason of the collapse of a building by reason of inadequacy of foundations but not be liable to the owner of the building for the cost of remedial work necessary to remedy the inadequacy and to avert such danger”.

But it is wrong to simply state that the Singapore position for recovery of pure economic loss is wider after the above two cases.

Man B&W Diesel SE Asia v PT Bumi International Tankers (2004):

Facts: This case concerned the alleged negligent supply and manufacture of a ship’s engine for a vessel owned by PT Bumi. The engine installed did not have a sufficiently powerful output, and as a result, PT Bumi suffered pure economic loss because their vessel had to be repeatedly put into port to repair, and ultimately replace the engine for one of larger capacity. For a period from 1995 to 1997, the vessel could not be hired out and the loss of potential revenue amounted to around US$900,000. PT Bumi also suffered pure economic loss in having to pay for a replacement engine (which cost around US$2m).The vessel had been constructed for PT Bumi by Malaysian Shipyard and Engineering Sdn Bhd (“MSE”) pursuant to a contract between the two of them. This contract contained express clauses that limited the remedies available to PT Bumi (as against MSE), in the event of defects discovered in the vessel. The price paid included both the hull and the engine of the vessel and PT Bumi was aware that MSE would acquire the engine from a third party.

The engine was supplied to MSE by Man B&W Diesel SE Asia (“MBS”). These engines were manufactured by MBS’ UK parent company, Mirlees Blackstone Limited (“MBUK”). There was no contract between Bumi and MBS or MBUK for the supply of the main engine, although PT Bumi could have arranged to do so. Nevertheless, PT Bumi chose not to enter into direct contract relations with MBS or MBUK although it was aware that MBS had been commissioned by MSE to supply the engines for the vessel. When the vessel had to be put into port to repair and ultimately replace the vessel, PT Bumi sued MBS and MBUK in tort for negligent supply and manufacture of the engine (MSE was saved by the limitation clauses in its contract with PT Bumi).

Judgment: There was a contract between MSE and PT Bumi containing a limited warranty and several limitation clauses. However, PT Bumi did not have a direct contractual relationship with MBS or MBUK, although it could have entered into a direct contractual arrangement with MBS and MBUK in relation to the engine. By entering into the main contract with MSE on such limited terms, PT Bumi committed itself to looking to MSE for redress. While PT Bumi was anxious that MBS and MBUK should produce an engine in accordance with specifications, it did not intend to seek redress from MBS and MBUK. As far as PT Bumi was concerned, it had relied on MSE alone. To then infer a duty of care on MBS and MBUK would run counter to the specific arrangement that PT Bumi had chosen to make with MSE.

Further, while MBS and MBUK owed a contractual duty of care to MSE by virtue of the sub-contract, there was no such assumption of duty by MBS or MBUK vis-à-vis Bumi.If PT Bumi was concerned about the limitation of liability clauses in the main contract, it should have modified them before execution. Alternatively, PT Bumi could have gone to another builder or obtained independent insurance coverage for any economic losses. PT Bumi had made its bargain and ought to live with it. It was not for the court to help a party, after the event, to improve his commercial bargain.Therefore, MBS and MBUK owed no duty of care in the tort of negligence to PT Bumi in relation to its loss of hire that could have been earned, if not for the vessel’s down time. Similarly, they owed no duty of care in relation to PT Bumi’s losses for the cost of replacing the vessel’s engine.

DIFFICULT CASES

A. Where damage is caused by OMISSION OF DEFENDANT.

Donoghue v Stevenson – once positive action undertaken, will be accompanied by legal liability if undertaken in negligent manner. BUT does not apply where damage is incurred by defendant’s failure or omission to act.

Admittedly, the division between the two may often be viewed as a matter of semantics – e.g. the failure of the bottlers in Donoghue v Stevenson to prevent the snail from being bottled may be fairly described as either a positive negligent action or as an omission.

Broadly speaking, however, the division between the two may be viewed as the difference between actively causing harm (a negligent act) and merely passively failing to prevent harm (a negligent omission).

Where it cannot be established that there is a positive duty to prevent harm, then merely passively failing to prevent harm cannot give rise to liability. When, then, can it be established that there is such a positive duty? Resorting to the neighbour principle merely begs the question.

The following fact-scenarios illustrate the difficulty with which the common law has in imposing tort liability in negligence for omissions which involve the passive failure of the defendant to prevent harm to a plaintiff:

(1) Responsibility for other persons – where the defendant is responsible for the personal safety of the plaintiff(a) Parent and child: Duty of parent to look after the welfare and safety of their child(b) School and students: Duty of school to provide a safe learning environment for

their students – consider U.S. difficulties with this after Columbine.(c) Employer and employee: duty of employer to provide a safe work

environment and system of work(d) Rescuer and victim: It may be that once you undertake to rescue someone, you have to carry it through without serious errors of judgment – Horsley v MacLaren (The Ogopogo) [1971] 2 Lloyd’s Rep 410 (Supreme Court of Canada).

(2) Responsibility for dangers on property(a)The occupier of a property has a positive duty to take steps to ensure the safety of visitors to his property.

(b) He may even have a positive duty to take steps to ensure the safety of trespassers!

(3) Responsibility for the torts of others(a) Smith v Littlewoods Organization Ltd [1987] AC 241 (House of Lords).Facts: Defendant bought an old cinema for renovation. Vandals started fire in the cinema which destroyed adjoining property owned by the plaintiff. Plaintiff sued defendant arguing defendant owed DOC.Judgment: No DOC owed. Defendant not aware of any previous acts of vandalism and no reason to suspect that fire would start in cinema by vandals.Vs(b) Dorset Yacht Co v Home Office [1970] AC 1004 (House of Lords) Facts: The Home office, a govt. department in the UK was in charge of prisons and remand centres. Detainees escaped from remand centres and damaged respondent’s property while on the loose. Respondent sued Home Office, alleging it owed duty of care.Judgement: DOC owed.

(4) Liability of public bodies for failure to prevent damage(REFER TO ABOVE) Anns v Merton London BC; compared with Murphy v Brentwood DC

B. TWO STAGE TEST AND LIABILITY FOR NERVOUS SHOCK OR PSYCHIATRIC HARMForeseeability is not needed for primary victimThere is NO liability for mere misery or other human emotions such as grief or unhappiness, as opposed to illness arising from shock.

Must distinguish between “primary” and “secondary” victims.Stuart-Smith LJ in McFarlane v. E.E. Caledonia Ltd. [1994]: (no need)Such “direct involvement” or participation in the accident may arise in a number of ways: “There are I think basically three situations in which a plaintiff may be a participant when he sustains psychiatric injury through fear of physical injury to himself. First , where he is in the actual area of danger created by the event, but escapes physical injury by chance of good fortune. … Secondly , where the plaintiff is not actually in danger, but because of the sudden and unexpected nature of the event he reasonably thinks that he is. An example of this is Dulieu v. White & Sons, [1901] 2 K.B. 669 where the plaintiff was put in fear for her safety when the defendants' runaway vehicle burst into the public house where she was serving behind the bar. She was not in fact at risk of physical injury; but she naturally was put in fear for her own safety. This was something that plainly ought to be in the contemplation of the defendant who negligently allows his vehicle to career out of control. It is not only those who may be able to fling themselves out of its path and so escape physical injury (who would fall into category 1), but those in the agony of the moment who reasonably believe they are in danger. … Thirdly , the situation may arise where the plaintiff who is not originally within the area of danger comes into it later. In the ordinary way, such a person, who is a volunteer, cannot recover if he has freely and voluntarily entered the area of danger. This is not something that the tortfeasor can reasonably foresee, and the plaintiff may also be met with a defence of volenti non fit injuria. However if he comes as a rescuer, he can recover. This is because a tortfeasor who has put A in peril by his negligence must reasonably foresee that B may come to rescue him [A], even if it involves risking his [B’s] own safety. …”

Primary victims: generally WILL be able to recover for psychiatric injuries caused by negligence of

defendant as long as it is reasonably foreseeable that the plaintiff would suffer personal injury because of his negligence.

No need to determine if incidence of psychological damage could be foreseen or if he actually suffers physical injuries.

Page v Smith (1996) Applies two stage test for nervous shock or psychiatric harm to primary victims.o Entitled to recovery even when psychiatric illness was not reasonably foreseeable –

provided that physical injury which was apprehended and which gave rise to the psychiatric illness was foreseeable.

Secondary Victims: Must impose certain additional controls.

BOTH physical proximity (time and space) AND emotional proximity (in terms of “relationship”) are required to succeed in claim for nervous shock caused by negligence to a “secondary victim”.

Appears that easier for secondary victim to successfully sue if he has directly seen or heard the event (or its immediate aftermath) with unaided senses rather than through 3rd party.

Quote Lord Lloyd in Page v Smith (1996) : “1. In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims. 2. In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. 3. In claims by secondary victims, it may be legitimate to use hindsight in order to apply the test of reasonable foreseeability at all. Hindsight, however, has no part to play where the plaintiff is the primary victim. 4. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. … 5. A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognized psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him.”

McLoughlin v O’Brian (1983) : (Benny, Pg 483, 18-340) (important) Applies two stage test for nervous shock or psychiatric harm to related secondary

victims. Inadequate to only focus on reasonable foreseeability(2)Narrowing: Public Policy did not limit recovery under nervous shock or psychiatric harm. Other ways to limit scope of application:o The class of persons who should succeed (relational)o The proximity of the plaintiffs concerned (spatial)

o Means by which shock is caused. (perceptional – includes sight, hearing of event and ‘immediate aftermath”).

Other relevant cases: Alcock v Chief Constable of South Yorkshire Police (1992)Singapore Case: Pang Koi Fa v Lim Djoe Phing (1993) (Benny, Pg 483, 18-340)

Non-related secondary victims: White v Chief Constable of South Yorkshire Police (1998)o Held that claims only allowed if plaintiff was within area of physical damage and could

recover on basis of being an endangered primary victim.

Lord Oliver in Alcock v Chief Constable of South Yorkshire Police (1992):“Cases in which damages are claimed for directly inflicted injuries of this nature may present greater difficulties of proof but they are not, in their essential elements, any different from cases where the damages claimed arise from direct physical injury and they present no very difficult problems of analysis where the plaintiff has himself been directly involved in the accident from which the injury is said to arise. In such a case he can be properly said to be the primary victim of the defendant’s negligence and the fact that the injury which he sustains is inflicted through the medium of an assault on the nerves or senses does not serve to differentiate the case, except possibly in the degree of evidentiary difficulty, from a case of direct physical injury.”

Significance:Claims of damages by:(a) Persons who were physically present but not in any close relations with any particular victim(b) Persons who knew relatives were at stadium, but NOT physically proximate in terms of space and time. Both claims were dismissed – not proximate enough. Must be both physically and emotionally proximate.

White v Chief Constable of South Yorkshire Police (1999):Facts: Policemen providing security at Hillsborough Football Stadium claimed damages for psychiatric trauma when failure of crowd control caused more than 90 deaths and 100s of injured spectators.Judgement: Claim dismissed despite physical proximity. Physical proximity insufficient as policemen were dealing with aftermath and not sufficiently proximate in terms of time.

Significance: Must be both physically and emotionally proximate.C. Where damage caused is merely PURE ECONOMIC LOSS.

General Rule: Refuse recovery when there’s no physical damage for fear of floodgates.

o Spartan Steel, Murphy v Brentwood, D&F Estates.

EXCEPTIONS:Exception 1: pure economic loss caused by negligent misstatements:

Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964): (Ref to Benny 486/BPL 534)

Significance: Plaintiff can also claim for pure economic loss caused by negligent statement without any need for physical damage.

Facts: Plaintiffs (an advertising firm) sought advice on financial position of a company (Easipower Ltd) from the defendants who were the bankers of the company. Although defendants furnished favourable references, these were stipulated to be “without responsibility”. On the strength of defendant’s response, plaintiff continued to work for Easipower until Easipower collapsed and did not pay the plaintiff. Plaintiff sued Defendant (the bank). Judgement: There was a “special relationship” between defendant and plaintiff that gave rise to DOC owed by defendant to plaintiff. Defendant would be held liable if not for disclaimer.

Vital Elements of cause of action:(a) a special relationship(b) resulting from the the reasonable reliance by the plaintiff on the misstatement (c) Note: the voluntary assumption of responsibility by the defendant who made the

misstatement.

Can also refer to Caparo Industries v Dickman (above):“What can be deduced from the Hedley Byrne case, therefore, is that the necessary relationship between the maker of a statement or giver of advice (‘the adviser’) and the recipient who acts in reliance upon it (‘the advisee’) may typically be held to exist where (1) the advice is required for a purpose, whether particularly specified or generally described, which is made known, either actually or inferentially, to the adviser at the time when the advice is given; (2) the adviser knows, either actually or inferentially, that his advice will be communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be used by the advisee for that purpose; (3) it is known either actually or inferentially, that the advice so communicated is likely to be acted upon by the advisee for that purpose without independent inquiry, and (4) it is so acted upon by the advisee to his detriment.”

Not necessary for defendant to be in the profession of giving the type of advice which is subject of dispute. Sufficient if defendant has special knowledge or expertise that plaintiff relies on. Esso Petroleum & Co Ltd v Mardon (1976): Benny, Pg 487, 18-410

If there is a disclaimer:

(1) Refer to Misrepresentation Act :

Avoidance of provision excluding liability for misrepresentation.3. If a contract contains a term which would exclude or restrict —

(a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or

(b) any remedy available to another party to the contract by reason of such a misrepresentation,

that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated in section 11 (1) of the Unfair Contract Terms Act, and it is for those claiming that the term satisfies that requirement to show that it does.

(2) Refer to UCTA : Distinguish between limiting/excluding your liability and try to set scope of

obligation. Is clause limiting liability for misrep or merely saying representor does not

owe representee anything? Note: often no contract between representor and representee. Representor gets

nothing back in exchange for potential liability – understandable to limit liability?

Lord Griffiths In Smith v Eric S Bush (1990): (Benny 489, 18-415)Significance: disclaimer must satisfy UCTA Did the parties have equal bargaining power? Was it reasonably practicable to obtain the advice from an alternative source, taking into

consideration the costs and time involved? How difficult was the task being undertaken, for which liability was being excluded? “What are the practical consequences of the decision on the question of reasonableness?

This must involve the sums of money potentially at stake and the ability of the parties to bear the loss involved, which in its turn, raises the question of insurance.”

Neill LJ in James McNaughton Paper Group Ltd v Hicks Anderson & Co (1991):Significance: matters ‘which are likely to be of importance in most cases in reaching a decision as to whether or not a duty of care exists’.

(1) Purpose for which statement was made(2) Purpose for which statement was communicated(3) Relationship between adviser, advisee and relevant 3rd party(4) Size of any class to which advisee belongs(5) state of knowledge of adviser(6) Reliance by advisee

NOTE: When alleged negligent misstatement relates to a negligent failure by the defendant to give advice – i.e. negligence by keeping silent, when the defendant ought to have spoken up.

See Tai Hing Cotton Mil Ltd v Liu Chong Hing Bank [1986] Significance: Suggests that liability for such silence can only be made out if the defendant was under a duty to speak in the first place. o Since in most cases, there will be no duty on the defendant to speak out, except in

situations of an especially strong relationship of trust and reliance between the plaintiff and the defendant, it is likely that such an omission will not give rise to tortious liability .

o Query whether this aspect of the law has changed, following the enactment of the Consumer Protection (Fair Trading) Act.

Exception 2: pure economic loss caused by negligence with regard to real property damage:

REFER TO : RSP Architects Planners & Engineers v Ocean Front Pte Ltd(1996) and RSP Architects Planners & Engineers v Management Corporation Strata Title Plan No 1075 (“Eastern Lagoons”) (ABOVE)

o recovery is generally allowed but basis with respect to DOC is unclear. BUT clearly limited to cases of damage to buildings/real property as a result of negligence. Man B&W Diesel SE Asia v PT Bumi International Tankers (2004) (Above)

In “Eastern Lagoons”, “[T]he investment in real property is likely to represent a significant, if not the most significant, investment in an individual’s lifetime … The scale of investment in money terms is far greater than what is involved in the acquisition of a chattel. Secondly, the permanence of the structure may give rise to a greater expectation than a chattel. We think those arguments apply a fortiori in Singapore, where land is not only scarce but expensive.”Note: Ocean Front – developer owed management committee duty of care

Eastern Lagoon – architect owed management committee duty of care.(2) BREACH OF DUTY OF CARE

1. Establish the standard of care expected of the defendant ─ an objective standard ascertained, generally speaking, by reference to the standard of a person of ordinary prudence or a person using ordinary care and skill .Some factors that the court would consider in determining the standard expected of the defendant:

1. Likelihood of injury;2. Seriousness of the injury;3. Cost of avoiding the risk; etc.

The plaintiff has the burden of proving that there was a breach. This can be done in two ways:1. Actual proof; or (especially in vehicle accident cases),2. Doctrine of res ipsa loquitur (“the thing speaks for itself”), where the court will

presume that the defendant has breached the duty of care if:(a) the defendant was in control of the thing which caused the accident; and(b) the cause of the accident must also be unknown.

Res ipsa loquitur is a rule of evidence only and, the defendant can displace the effect of the doctrine by adducing evidence consistent with the absence of negligence on its part.ELEMENTS OF NEGLIGENCE (3): DAMAGEA. Causation

1. “BUT-FOR” TEST. Whilst the negligent act which constitutes the breach of the duty of care must

be the proximate cause of the damage, it need not necessarily be the sole or dominant cause of the plaintiff’s loss or damage

BUT it must have materially contributed to the damage.

Fairchild v Glenhaven Funeral Services Ltd [2002]: (Pls refer to seminar outline)Significance: Application of “But-For” Test to prove causation. Negligence need not be sole or determinant cause.

Facts: Plaintiff exposed through the negligence of his employers to asbestos dust. Although scientific knowledge in this area is still incomplete, we know that “mesothelioma,” a type of cancer, is most often caused by exposure to such dust – in fact, it can be triggered by even a single asbestos fibre contaminating a “mesothelial cell.” Once exposed to asbestos fibre over a period of time, it is therefore impossible to say when, or which fibre precisely was the cause of the cancer. This may not be an insurmountable problem where the plaintiff can demonstrate that he was only exposed to asbestos through his employment with one negligent employer. However, there may be difficulties when there is more than one such negligent employer since any one of such exposures could have caused the disease. Plaintiff in this case was exposed twice – by 1st defendant and 2nd defendants. Cannot determine which caused cancer.Judgement: Initially – failed since he couldn’t prove which job had been “but for” cause of cancer.Court of Appeal: Decided that in these circumstance, plaintiff could succeed as long as he can demonstrate likelihood or risk of developing mesothelioma had materially increased due to the negligence of a particular employer.Duty of Employer: not merely to take reasonable care to prevent its employees from being injured, but in the context of mesothelioma from asbestos exposure, employers were under a duty to protect their employees, “against the risk of contracting … mesothelioma by exposure to asbestos.” All plaintiff’s employers were jointly liable.

Note:This case increased responsibilities of employers. Employer’s don’t only have DOC to prevent injury but also to prevent increased risk of injury. Technically employers should only be responsible for losses associated for increased risk

and not the injury or disease itself.Refer to: McGhee v National Coal Board [1973] for this type of quantification.Facts: McGhee, a worker in a brick kiln, contracted dermatitis due to exposure to brick dust. Although this was inevitable, given the nature of his work, his employer failed to provide any shower facilities for their workers at the end of their shifts – and there was evidence to prove that the risk of contracting dermatitis would have been reduced had this been done

concept of novus actus intervniens (an intervening act) may break the chain of causation.

1. some natural event independent of human agency2. an act (or omission by a 3rd party)3. conduct of claimant himself.

B. Remoteness of Damage

USE TEST: Wagon Mound (No 1) (1961) on ‘reasonably foreseeability’ defendant only liable for damage that is reasonably foreseeable.

o (contrast with special situations of fraudulent misrepresentation or deceit)o Only important that the TYPE of damage is foreseeable, NOT EXTENT.

Note:o Despite the test of reasonable forseeability, the plaintiff must take the victim

as he or she finds him or her. (I.E. defendant responsible even if plaintiff has ‘latent physical or psychological predisposition to particular injury or illness.”)This is called the thin-skull or egg-shell skull rule.

1Page v Smith: “eggshell personality” only in reference to “primary victims”Smith v Leech Brain & Co Ltd (1962):Facts: plaintiff contracted cancer due to a burn to his lip caused by the defendant’s negligenceJudgement: the cancer arose because the plaintiff had a pre-existing susceptibility to cancer, but this did not excuse the defendant from being responsible for the full extent of the damage caused by his negligence.

Could conflict with Wagon Mound rule when type of loss is not reasonably foreseeable but victims had pre-existing disposition to this type of loss.

o But no case currently to decide how conflict should be solved.C. MITIGATION

Defendant only liable to the plaintiff in relation to losses suffered by the defendant, provided that such losses are not readily avoidable by the plaintiff.

o plaintiff cannot unreasonably inflate his losses by acting in an extravagant manner, and then seek to recover such inflated losses from the defendant

Patel v Hooper & Jackson (a firm) [1999]

Facts: Mr and Mrs Patel engaged the firm of Hooper & Jackson to carry out a survey of a property he intended to acquire. Patels never moved in but rented alternative accommodations. However, they had to continue paying the mortgage and other related payments due on the property to his loan provider. Protracted negotiations with Hooper & Jackson as well as the loan provider ensued, but it was clear that as at 1993, all such negotiations had failed. As at the date of the hearing, the property was still owned by the Patels, and had not been sold.

Judgement: Survey negligently done, and the house was uninhabitable. Hooper & Jackson owed the Patels a duty to take reasonable care in the performance of this survey, both in contract, and in tort.

The Court of Appeal held that the Patels could recover the following from Hooper & Jackson: (i) reasonable costs of extricating himself from the purchase including the costs of alternative accommodation until such time as the house was sold and another acquired in its place;(ii) general damages of £2,000 each to compensate them for living in relative discomfort.

However, the Court of Appeal disallowed claims for an indemnity for the mortgage and other related payments which the Patels had to pay on the property, because it had been found that had the plaintiffs been properly advised by the defendants, they would have purchased another property and incurred similar payments and was expenditure that they would have incurred in any event.

Mitigation: Although the plaintiffs acted reasonably in not putting the house up for sale by auction until after attempts to promote a settlement had proved to be unsuccessful they ought 1 In seminar outline it is Page v White (Pg 14) but I can’t find such a case so I assume he’s talking about Page v Smith which is discussed above based on “reasonable foreseeability” involving primary victims.

to have mitigated their loss by selling when negotiations broke down – as a result, the “loss” in terms of the rent they had to pay for alternative accommodation incurred AFTER that date in 1993, was not recoverable.

D. DEFENCES

1. Illegality – Ex turpi causa

Pitts v Hunts (1991): Significance: YES to illegalityFacts: Plaintiff was pillion passenger on motorcycle which was involved in accident.1st defendant – personal representative of (deceased) rider of motorcycle2nd defendant – other vehicle involved in accident. Both plaintiff and rider had been drinking prior to accident and plaintiff knew rider didn’t have a driving license, was uninsured and still encouraged him to drive in reckless and dangerous manner which would have resulted to manslaughter is someone else had been killed.

Judgment: Plaintiff, on grounds of public policy was not allowed to recover any compensation. Plaintiff and rider were involved in “joint illegal enterprise”

Ooi Han Sun v Bee Hua Meng (1991): (BPL 544)Significance: NO to illegality.Facts: defendant argued that one of the plaintiff passengers (a Malaysian) did not possess a valid work permit at time of accident so duty of care owed.Judgment: plaintiff should be allowed to claim against defendant but quantum of damages awarded was affected. Based on “an estimate … what he would have earned in Malaysia had there been no accident.”Also against public policy to award full damages.

2. Voluntary Assumption of Risk – Volenti non fit injuria

o concept of consent or voluntary assumption of risko plaintiff must have fully known as well as appreciated the extent of the risk

and also consented as well as voluntarily accepted the said risk as well.o Sort of total defence. Don’t mix with Contributory Negligence which is only a

partial defence.

3. Contributory Negligence

o Does not necessitate a duty of care owed by the plaintiff to the defendant.