Tort Law

Published date01 December 2003
Date01 December 2003
AuthorTERRY KAAN SHEUNG-HUNG LLB (National University of Singapore), LLM (Harvard), Advocate and Solicitor (Singapore), Associate Professor, Faculty of Law, National University of Singapore KOH KOK WAH LLB (National University of Singapore); Advocate and Solicitor (Singapore)
Causation, vicarious liability and assessment of damages

20.1 In Poskey Patrick Joseph v Zouk Management Pte Ltd[2003] SGDC 42, the court endorsed general principles of causation and vicarious liability arising from an assault by the defendant”s security personnel on the plaintiff, a patron at the defendant”s discotheque.

20.2 The court found on the facts that the defendant”s security personnel had lifted the plaintiff, pushed him onto the ground, assaulted him, dragged him to the head of a flight of stairs and thrown him down. The plaintiff”s medical report indicated that he had sustained head injuries, contusion injuries to his neck, back and chest, and injury to his left knee.

20.3 In considering whether the defendant”s security personnel had caused all of the plaintiff”s injuries, the court noted that there were two instances where other people apart from the security personnel could have contributed to the plaintiff”s injuries, namely, when the plaintiff had been pushed onto the ground, and when he was being dragged to the stairs while being held at his sides.

20.4 However, the court reasoned that it was clearly the security personnel”s acts of assault which enabled others to do likewise. The court went on to apply the general tortious principle that where the damage is caused as a result of torts committed by several tortfeasors causing the same damage, if one of the several tortfeasors causing the same damage is sued alone, he is liable for the whole damage even if he did but a small part of it.

20.5 On the vicarious liability issue, the court applied the general principle that an act by an employee is deemed to be done in the course of employment if it is either a wrongful act authorised by the employer, or a wrongful and unauthorised mode of doing some act which is authorised by the employer. An employer can therefore be liable for acts of an employee if such acts are

done in the wrongful exercise of a discretion vested in the employee. In the instant case, the court held that the acts of assault were committed by the defendant”s security personnel in the course of ejecting the plaintiff from the defendant”s premises. These acts were clearly connected with or incidental to the ejection, which the defendant”s security personnel were authorised to do. Hence the court held that the defendant was vicariously liable for the excessive use of force by its employees in the course of the ejection.

20.6 On the issue of damages, the court was faced with an interesting question of how special damages for pre-trial loss of earnings should be assessed when the plaintiff was not employed on any permanent basis. He was a commercial diver who was employed on a contract basis, primarily for the inspection of underwater construction projects, as and when an assignment arose. In assessing this head of damages, the court adopted a practical approach by considering factors such as: (a) the period of time the plaintiff was certified medically unfit to work; (b) the general availability and frequency of diving assignments in the market in question; (c) the general demand for a commercial diver of the plaintiff”s experience; (d) the diligence with which the plaintiff applied himself to his work; and (e) deductions for income tax.

20.7 As for general damages, after reviewing precedent cases involving similar injury claims, the court awarded the plaintiff $2,000 for head injury, $2,500 for contusion injuries to the neck, back and chest, and $18,000 for pain and suffering for the injury to the plaintiff”s knee involving a ligament rupture and tear to the medial meniscus, as well as possible arthritis.


20.8 In Desker Gary Bernard v Thwaites Racing Pte Ltd[2003] SGHC 175, the plaintiffs, who were the owners of several racehorses, brought, inter alia, an action against a racehorse training company for conversion of one of the horses.

20.9 The court found on the facts that the defendant had removed the horse from its premises and sent it to a stable in Ipoh contrary to the plaintiffs” instructions. At a meeting with the plaintiffs, the defendant accepted responsibility for the mistake and offered to refund its charges, bear the expenses of the horse in Ipoh, and bring the horse back to Singapore. The plaintiffs accepted the offer but instructed that the horse remain in Ipoh pending further examination. Subsequently, after receiving an unfavourable veterinary report on the horse prepared by the Perak Turf Club, the plaintiffs instructed that the horse be put down.

20.10 The court held that the defendant was liable for conversion when it had sent the horse to Ipoh. The compensation agreement between the parties was a ‘damage-control’ exercise by the defendant to pacify the plaintiffs. There was nothing to suggest that the acceptance of the offer extinguished the defendant”s liabilities. The plaintiffs therefore did not waive their rights when they accepted the offer in those circumstances. However, the liability for conversion ceased from the time when the plaintiffs instructed that the horse remain in Ipoh pending further examination. Accordingly there was no conversion after this time and up to the point when the horse was put down on the plaintiffs” instructions.

20.11 Of interest in this case is the fact that mistake was involved. Although the specific mode of conversion was not discussed in the judgment, it is clear that at common law, it is possible to convert another person”s goods or chattels without intending to deny that person”s right or title to the goods or chattels, as in cases of misdelivery by a bailee.

20.12 In Bansal Hermant Govindprasad v Central Bank of India[2003] 2 SLR 33, the Central Bank of India (‘CBI’) sued Bansal for, inter alia, conversion arising from Bansal”s use of letters of credit which had been negotiated by CBI and which Bansal was not entitled to use, in order to obtain delivery of goods for subsequent sale to a third party.

20.13 At trial, Bansal submitted that it had no case to answer. However, the trial judge found that there was a prima facie case of conversion, and entered judgment in favour of CBI (see Central Bank of India v Bansal Hermant Govindprasad[2002] 3 SLR 190).

20.14 Bansal”s appeal was dismissed by the Court of Appeal. The court held that following the negotiation of the letters of credit, CBI was entitled to the documents and in turn the goods. There was no evidence as to how the documents subsequently ended up in Bansal”s physical possession. There was no evidence that Bansal had paid for the documents. Therefore, the court held that prima facie, although physical possession of the documents was no longer with CBI, CBI remained the owner of the documents and thus had the right to immediate possession of the documents and in turn the goods. Bansal, having not paid for the documents, nevertheless proceeded to use them to obtain delivery of the goods which were subsequently disposed to a third party. By so dealing with the documents to obtain delivery of the goods, Bansal intended to deny CBI its rights to the documents and in turn the goods, and was thereby liable for conversion. The court was therefore satisfied that a prima facie case had been established and that the trial judge was correct in entering judgment for CBI.

20.15 The case of Hillfield International Ltd v Chew Lai Yoke Bettina[2003] 4 SLR 110 concerned claims for conversion arising from disputes over the division of assets from a divorce. The disputes included, inter alia, the claim of the ex-husband, Mr Selby, over certain bronze items, and the assertion that his ex-wife, Ms Chew, had converted the company kits and document files of three companies owned by Mr Selby.

20.16 The Court of Appeal upheld the trial judge”s finding that Mr Selby”s claim for conversion in respect of the bronze items could not succeed. The court held that according to the parties” agreement, Mr Selby was entitled to all‘personal belongings’, but only such‘art collection and moveable property’ as listed in the agreement. Mr Selby argued that he had purchased the bronze items in question which were therefore part of his ‘personal belongings’. Accordingly, he was entitled to them as against Ms Chew, who had admittedly retained them. The court preferred, however, to classify the bronze items as part of the ‘art collection’. The court held that on its true construction, the parties had intended their agreement to be exhaustive as to the distribution of the assets despite the fact that Ms Chew allowed Mr Selby to remove some items that had not been enumerated in the list, and had also voluntarily added a few other items to the list after its execution. As such, since the bronze items were not listed in the agreement, Ms Chew was entitled to retain them.

20.17 The court upheld the trial judge”s finding that Ms Chew was liable for conversion of the company kits and document files of the three companies owned by Mr Selby when she relinquished her directorship and interests in the companies upon the divorce, yet continued to retain possession of the relevant materials.

20.18 The court also resolved other disputed issues between the parties concerning various documents relating to items of the art collection which had been allocated to Mr Selby, as well as the division of a wine collection worth approximately US$400,000.


20.19 In Macquarie Corporate Telecommunications Pte Ltd v Phoenix Communications Pte Ltd[2004] 1 SLR 463, the plaintiff, a telecommunications service provider, commenced a defamation action against the first plaintiff, a competitor company, and the second defendant, an accounts manager with the first defendant, in respect of three e-mails which the second defendant had sent to the plaintiff”s customers. The e-mails essentially alleged that the plaintiff was operating in breach of regulations enforced by the Info-Communications Development Authority of Singapore...

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