Tort Law

Citation(2002) 3 SAL Ann Rev 380
AuthorKOH KOK WAH LLB (NUS), Advocate & Solicitor (Singapore) TERRY SHEUNG-HUNG KAAN LLB (NUS), LLM (Harv), Advocate & Solicitor (Singapore) Associate Professor, Faculty of Law, National University of Singapore
Date01 December 2002
Publication Date01 December 2002
Negligence
Exemption clauses

20.1 The effectiveness of the exemption and limitation of liability clauses in the Singapore Freight Forwarders Association Standard Trading Conditions (“SFFA Conditions”) and in bills of lading arose for consideration in Rapiscan Asia Pte Ltd v Global Container Freight Pte Ltd[2002] 2 SLR 325. The plaintiff (“Rapiscan”) brought an action against the defendant (“Global”) for breach of a contract of carriage.

20.2 Rapiscan had entered into a contract with a third party for the supply of X-ray machines which screen for the presence of guns, knives and other such weapons. Under this contract, Rapiscan was to ensure that the X-ray machines were operationally ready at various designated sites in Macau by a certain date. Rapiscan, through an agent, then entered into a contract of carriage with Global for the X-ray machines to be shipped to the third party. Global failed to ship the X-ray machines to Macau on time, and the contract between Rapiscan and the third party was cancelled. It was undisputed that Global made negligent misrepresentations to Rapiscan regarding the progress of the shipment. S Rajendran J found that it was an express term of the agreement that Global was to monitor the shipment and keep Rapiscan informed of its progress. The issue was whether the exemption clauses and limitation of liability clauses found in the SFFA Conditions and bill of lading exempted or limited Global”s liability for Rapiscan”s loss.

20.3 In order to determine whether the exemption clauses applied to acts of negligence, Rajendran J applied the three tests set out by Lord Morton in Canada Steamship Lines Ltd v The King[1952] AC 192, and adopted by the Singapore Court of Appeal in Marina Centre Holdings Pte Ltd v Pars Carpet Gallery Pte Ltd[1997] 3 SLR 625. The approach is stated by Lord Morton in Canada Steamship at 208 as follows:

“(1) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called ‘the proferens’) from the

consequence of the negligence of his own servants, effect must be given to that provision. …

(2) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. If a doubt arises at this point, it must be resolved against the proferens

(3) If the words used are wide enough for the above purpose, the court must then consider whether ‘the head of damage may be based on some ground other than that of negligence,’ to quote again Lord Greene in [Alderslade v Hendon Laundry Ltd[1945] KB 189 at 192]. The ‘other ground’ must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, which is no doubt to be implied from Lord Greene”s words, the existence of a possible head of damage other than that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence on the part of his servants.”

20.4 The relevant exemption clause in the SFFA Conditions is cl 26(b) which reads:

“Subject to Clause 14, the Company shall not in any circumstances be liable for loss or damage however caused to property other than the Goods themselves, indirect or consequential loss or damage, loss of profits, … or the consequences of any delay or deviation.”

Rajendran J held that as the clause in question contained no specific or express reference to negligence or any synonym for negligence, the first Morton test was not satisfied. It satisfied the second Morton test as the words in the clause were wide enough to cover negligence. However, as the clause was applicable to heads of claim other than claims based on negligence, the third Morton test was not satisfied. Therefore, the clause would not exempt from liability the claim against Global for breach of contract arising from the negligent representations of Global. Rajendran J also held that the exemption clauses found in the bill of lading were too widely worded to satisfy the three Morton tests.

20.5 In so far as the limitation of liability clauses were concerned, Rajendran J cited English authorities to the effect that such clauses are not construed as strictly as exemption clauses. All that is required is that the clause be clear and unambiguous. On the facts, the limitation of liability clause relied upon by Global did not limit Global”s liability arising from its negligence.

20.6 Rajendran J gave judgment with costs in favour of Rapiscan. Global appealed to the Court of Appeal but the appeal was dismissed without the Court of Appeal delivering any grounds of decision.

Medical negligence

20.7 A landmark decision in the field of medical law was established by the Court of Appeal in the case of Khoo James v Gunapathy d/o Muniandy[2002] 2 SLR 414. For almost half a century, the case of Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 has been the touchstone of English common law in its approach to the standard of care owed by a doctor to his patient. In recent decades, the principles enunciated in Bolam have come under much criticism in some jurisdictions, notably Australia and Canada. The High Court of Australia, for example, has explicitly rejected Bolam (at least in relation to the duty of disclosure and advice) in the case of Rogers v Whitaker(1992) 109 ALR 625, preferring instead the approach of the Supreme Court of Canada in the case of Reibl v Hughes(1980) 114 DLR (3d) 1.

20.8 Given this background, there has been some speculation as to whether the common law in Singapore would develop in this direction, or if Bolam would be reaffirmed. This decision of the Court of Appeal puts the matter beyond doubt: Bolam, as supplemented by the decision of the House of Lords in Bolitho v City and Hackney Health Authority[1998] AC 232, continues to apply in Singapore. The position in Singapore is therefore in essence the same as that currently prevailing in England.

20.9 In Singapore, the authority importing Bolam has long been the Privy Council decision in the case of Chin Keow v Government of Malaysia[1967] 1 WLR 813, which applied the formulation of the standard of care of articulated by McNair J in his famous direction to the jury in Bolam (at 586):

“[W]here you get a situation which involves the use of some special skill or competence … the test … is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

From the Singapore (and Malaysian) viewpoint, the binding precedent represented by the decision in Chin Keow was sufficient to entrench the Bolam approach in Singapore. The significance of the adoption of the Bolam rule laid in the fact that the common law seemed to advocate quite a different approach to the finding of the applicable standard of care in the case of doctors, as opposed to other skilled professionals. In the case of Edward Wong Finance Co Ltd v Johnson Stokes & Master[1984] AC 296, the Privy Council had ruled that the existence of a professional practice accepted by a given profession did not of itself prevent the court from inquiring into whether or not the professional practice itself was a reasonable practice to adopt, notwithstanding the fact that it was commonly accepted in the profession.

20.10 Bolam took a different tack for cases involving the medical profession: in a series of cases in the 1980s, the House of Lords confirmed the application of the Bolam approach to the standard of care in the doctor”s duty of treatment (Whitehouse v Jordan[1981] 1 WLR 246), the duty of diagnosis (Maynard v West Midlands Regional Health Authority[1984] 1 WLR 634), and eventually also to the duty of disclosure and advice to the patient (Sidaway v Board of Governors of the Bethlem Royal Hospital[1985] AC 871).

20.11 The common thread in all these cases was the principle that in the matter of the applicable standard of care, it was not for the courts to choose between conflicting competent professional opinions which were responsibly and honestly held. Bolam was summarised by Lord Scarman in Sidaway (at 881) as follows:

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.”

20.12 The harshness of the Bolam rule was mitigated somewhat by the House of Lords in its recent decision in the case of Bolitho v City and Hackney Health Authority[1998] AC 232. The modification applied to Bolam by the Bolitho case was characterised by the Court of Appeal in Gunapathy as making it clear that “the court was not bound to find for a defendant doctor simply because a body of experts testified in his favour. To qualify as a responsible body of opinion, such testimony must have a logical basis. This meant that the experts had to have directed their minds to the comparative risks and benefits and have reached a ‘defensible conclusion’ on the matter” (at [59]).

20.13 The Court of Appeal agreed with Lord Browne-Wilkinson”s observation in Bolitho (at 243) that:

“[T]he court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant”s treatment or diagnosis accorded with sound medical practice … [T]he court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical...

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