SG Tort Law Flashcards
Overview:
Effect of land scarcity in the law of torts in SG
- Recovery of pure economic loss in the tort of negligence: Singapore courts expressly depart from the UK and do not award damages for pure economic loss in building defect cases.
- SG courts have a pragmatic exception with reference to pure economic loss in cases of negligence in building construction cases.
Duty of Care in the Tort of Negligence: Spandeck Engineering (S) Pte Ltd v DSTA [2007] 4 SLR(R) 100
2-stage test of proximity (as b/w parties in dispute) and public policy considerations (whether sufficient to negate a prima facie duty), preceded by factual foreseeability of harm threshold requirement.
- Prelim test of factual foreseeability: Was it reasonably foreseeable that Ds negligent act would cause some harm to the plaintiff?
- Proximity
- Policy Considerations
Old Trilogy:
RSP Architects Planners and Engineers v Ocean Front [1995] 3 SLR(R) 653
[Anns test for economic loss]
P was mgt corporation of a condo dev and sued the developer for alleged faulty construction. Issue was whether P could recover loss since this was pure economic loss.
Held (CA): Followed the 2-stage Anns test (proximity and negativing policy considerations).
- Is there a degree of proximity between P and D as would give rise to a duty of care with regards to the damage sustained by P?
- Is there ‘any policy consideration in negativing such a duty of care’?
Old Trilogy:
RSP Architects Planners and Engineers v MCST Plan No 1075 (“Eastern Lagoon”) [1999] 2 SLR(R) 134, SGCA
[Anns test for economic loss in property defects]
Held (CA): Purported to not follow the Anns test (1977) in Ocean Front since the 3-stage Caparo test (1990) was decided after Anns and Ocean Front.
- Court examines and considers facts and factors to determine whether there is sufficient degree of proximity in the relationship between parties which would give rise to DoC on the part of D to avoid the kind of loss sustained by P; and
- Having found such degree of proximity, Court considers whether there is any material factor or policy which precludes the duty from arising.
Old Trilogy:
The “Sunrise Crane” [2004] SGCA 42
[Anns test for economic loss]
- Noted that 2-stage process only applied to economic loss
2. Applied the 3-stage Caparo test for physical loss.
Modern Trilogy: Spandeck Engineering (S) Pte Ltd v DSTA [2007]
[Key test]
CA recognised problem with having 2 different tests and developed a single test to determine the imposition of DoC in all claims arising out of negligence, irrespective of the type of damages.
[73] Basically a restatement of the two-stage test in Anns, tempered by
the preliminary requirement of factual foreseeability.
- Universal test across all types of losses: Proximity and policy considerations on the preliminary requirement of factual foreseeability.
- Significance of “incrementalism”: the existence of analogous precedents, which determines the current limits of liability, would make it easier for the later court to determine whether or not to extend its limits.
- Clear distinction between “factual foreseeability”, “proximity”, and “policy considerations” (which form elements of the test in Spandeck).
Modern Trilogy:
Ngiam Kong Seng and another v Lim Chiew Hock [2008] 3 SLR(R) 674
[Concerns psychiatric harm]
P1 (motorcyclist) collided with D2 (taxi driver). P1 lay on road and D2 approached P1. P1 thought D2 was just a passer-by and told D2 to call P1’s wife (P2). They went to the hospital and D2 continued interacting with P2, all along not disclosing that he was the one that collided with P1. When P2 found out later, she suffered from shock and major depression. Ps sued D2 + Taxi Company for psych injury.
Held: Rejected UK approach of primary/secondary V (Page v Smith).
Relied on single test from Spandeck for psychiatric harm cases, and should apply in all negligence cases to determine the imposition of DoC.
Modified slightly to include 3 proximities from McLoughlin v O’Brian [1983] (class of persons whose claims should be recognised; proximity of the claimants to the accident; means by which the shock is caused) as qualified and restricted by Alcock (concept of “proximity” is artificial, depends more upon Court’s perception of what is reasonable for the imposition of liability than upon any logical process of analogical deduction).
Modern Trilogy:
Animal Concerns Research and Education Society v Tan Boon Kwee [2011] 2 SLR 146
[Application of Spandeck]
T appointed as site supervisor by ANA (appointed by ACRES to construct animal shelter). ANA breached contract in engaging LS to bring in material consisting of wet soil and wood chips in a method known as ‘back filling’ which pollutes the surrounding environment. ACRES suffered economic loss due to costs in remedying the pollution.
Held: Spandeck test used: “a single test is preferable in order to determine the imposition of a duty of care in all claims arising out of negligence, irrespective of the type of the damages claimed.”
Issues in DoC:
Universality
- Spandeck: CA adopted a broad notion of ‘universality’ and held that the single test should apply to all types of claims arising from negligence regardless of the type of damage claimed.
- BUT, CA was aware of the different types of policy concerns and proximity factors in different types of losses: “it may well be that there are policy considerations in restricting recovery for pure economic loss”.
- Note that framework is universal but the application is narrower and particular.
Issues in DoC:
Relevance of type of harm
Type of harm is merely a proxy to the circumstances under which the tort took place.
Issues in DoC:
Incrementalism
- Courts to decide first whether that specific step (or criterion) can be satisfied with ref to decided cases. This will provide an essential check to any unwarranted expansion of liability for negligent acts.
- Desirable to refer to decided cases in analogous situations to see how Courts have reached their conclusions in terms of proximity and/or policy.
Issues in DoC:
The substantial requirements -
Factual Foreseeability
Preliminary requirement of factual foreseeability.
- Qn to ask: Was it reasonably foreseeable that D’s negligent act would cause some harm to P?
- Broad test, and only meant to weed out completely unmeritorious claims.
Issues in DoC:
The substantial requirements -
Proximity -
Relevant Factors
1st Req of Spandeck.
Premise of universality from Spandeck does not preclude the type of harm from satisfying the relevant proximity factor as long as the analytical framework remains consistent.
Sato Kogyo: DoC established where defective product caused physical dmg to the ultimate user’s own property.
- Requires more than just physical closeness b/w parties (Animal Concerns Research and Education Society v Tan Boon Kwee [2011]).
- David Tan ID’d several factors pursuant to the AU ‘salient features’ approach (ID’d in Anwar Patrick Adrian and anor v Ng Chong and Hue LLC and anor [2014] 3 SLR 761):
a. Control by D of risk of harm;
b. Vulnerability (to the harm) of class of persons to which c. Assumption of responsibility by D; and
d. Reasonable reliance by P on D to take care.
Issues in DoC:
The substantial requirements -
Proximity -
Physical Harm
Courts tend to look at physical proximity.
- Ho See Jui [2011] SGHC 108:
b. Vulnerability: Present due to close proximity and flooring’s weakness to water.
d. Reasonable Reliance: Reasonable to rely on D to prevent seepage.
Others: Physical proximity (neighbours). - PC Connect [2010] SGHC 154:
c. Assumption of Resp: None, since tenancy agreement excluded.
d. Reasonable Reliance: None, since tenancy agreement excluded. - XD v Hong Kah [2008] SGDC 96:
a. Control: No control over metal frame that fell.
c. Assumption of Resp: None, since beyond scope of town council. - XU v XV [2008] SGDC 220:
Others: Employee- employer so closely and directly related.
Issues in DoC: The substantial requirements - Proximity - Psychiatric Harm - McLoughlin Factors
- V must be suffering from recognisable psych illness, distinguished from sorrow and grief (no matter how severe). Courts have clear pref for McLoughlin Factors in psych harm cases:
A. Class of persons whose claims should be recognised: Need a close familial r/s b/w P and V, e.g. parent and child, H and W. The closer the tie (not merely in r/s, but in care) the greater the claim. Rejects claims of the ordinary bystander because such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that Ds cannot be expected to compensate the world at large.
B. Proximity of Ps to incident: Through ‘time and space’. Ps with direct and immediate sight or hearing would be proximate to the accident. Courts also use the “aftermath” doctrine for Ps who come very soon upon the scene following the aftermath of the accident (“direct perception of some of the events which go to make up the accident as an entire event, and this includes the immediate aftermath”).
C. Means by which the shock was caused: Must come through sight or hearing of the event or of its immediate aftermath. Does not include shock communicated by a third party.
- [121] Primary/secondary V dichotomy of Page v Smith was rejected in Ngiam Kong Seng (where a primary victim who suffers psych harm arising out of physical harm even if the psych harm is not a foreseeable consequence of D’s negligence).
- [121] McLoughlin factors similar in substance to Spandeck test considerations.
