Tort Law
| Author | Kumaralingam AMIRTHALINGAM LLB (Hons), PhD (Australian National University); Professor, Faculty of Law, National University of Singapore; Senior Director (Research & Policy), Attorney-General's Chambers. Gary CHAN LLB (Hons), MA (National University of Singapore) LLM, BA (University of London); Associate Professor, School of Law, Singapore Management University. |
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
24.1 In Shaik Abu Bakar Bin Abdul Sukol v Saag Oilfield Engineering (S) Pte Ltd[2012] SGHC 251, the plaintiff was employed as a derrick builder by the first defendant, a company in the business of manufacturing and repairing oilfield and gas field machinery and equipment, including derricks. The second defendant, a company engaged in the construction, repairing and improving of oil rigs, ships and other ocean going vessels, owned a shipyard. The plaintiff suffered injury while working at the shipyard and claimed against the second defendant for damages in negligence and breach of statutory duty. The first defendant has gone into liquidation.
24.2 The claim in breach of statutory duty failed due to improper pleadings by the plaintiff. The High Court stated that the shipyard would fall within the meaning of a ‘workplace’ (ie, ‘any premises where a person is at work or is to work … and includes a factory’) under s 5(1) of the Workplace Safety and Health Act (Cap 354A, 2007 Rev Ed) (‘WSHA’). The word ‘factory’ was defined in s 5(2)(a)(iii) of the WSHA as ‘any premises within which persons are employed in … the repair, construction or manufacturing of any vessel or vehicle’. Though the WSHA imposes certain duties on the occupier of a workplace under s 11 and the facts showed that the second defendant was clearly in breach of its statutory duty, the provision was not pleaded in the statement of claim. The plaintiff had instead pleaded under s 12(1) of the WSHA (pertaining to an employer-employee relationship) which was not relevant vis-à-vis the second defendant.
24.3 Nevertheless, the claim in negligence against the second defendant succeeded. First, the second defendant owed a duty of care to all persons who worked at the shipyard as it had foreseen the dangers from certain types of works such as hot work and lifting works for which the second defendant had required inspections and certifications. Secondly, the second defendant had breached its duty to the plaintiff by permitting the lifting works, which had resulted in the plaintiff's injuries, to proceed. The court found that the scaffolding installed at the lifting site had obstructed the lifting works. Though the second defendant was held liable to the plaintiff for damages resulting from the injury, the plaintiff was found contributorily negligent for 50% of the damage. The latter had not exercised due care by failing to wear gloves which he knew he was required to wear.
24.4 There were a few cases involving conversion in 2012 which arose from different factual contexts involving share transactions, distress of property, car financing and cargo shipments. In the first case, Tjong Very Sumito v Chan Sing En[2012] 3 SLR 953, there were two sets of claims. In the first set of claims, two of the defendants, Aventi and OAFL, had received moneys and shares from the sale of shares pursuant to a sale and purchase agreement. They subsequently sold the shares. The plaintiffs sought to recover the moneys and shares based on various causes of action: money had and received, resulting trust, conversion, fraudulent misrepresentation and unlawful means conspiracy. The fraudulent misrepresentation claim was not successful due to a lack of proof of reliance by the plaintiffs on the alleged misrepresentations and the failure to prove losses. The claim in unlawful means conspiracy also failed as it was parasitic on the fraud claim.
24.5 In the second set of claims, arising from another sale of shares pursuant to the second and third sale and purchase agreements, the first plaintiff claimed he had signed the sale documents under duress, was induced by fraudulent misrepresentation to execute the agreements and that certain of the defendants conspired to induce him to sell at an undervalue via the alleged duress and fraudulent misrepresentation. This claim in fraudulent misrepresentation succeeded. However, the conspiracy claim failed as it was parasitic on the failed duress claim due to a lack of evidence of compulsion of the first plaintiff's will.
24.6 With regard to conversion, which related only to the shares arising from the first set of claims, the plaintiffs had to show they had either actual possession or a right to immediate possession of the shares. In this case, the plaintiffs did not have actual possession of the shares since the shares were issued directly to Aventi and OAFL. Nonetheless, they had the right to immediate possession of the shares when the shares were sold by Aventi and OAFL as the latter two parties were holding the shares as bailees and agents of the plaintiffs. The court reasoned as follows:
(a) Bailees — Aventi and OAFL acted as bailees of the shares based on their voluntary possession of the shares. They acted in a manner repugnant to the terms of bailment when they sold the shares. As such, the bailment was terminated under the law and the right of possession re-vested in the bailor (the plaintiffs). Hence, the plaintiffs, with the right of immediate possession, had the locus standi to sue in conversion.
(b) Agents – a clause in the sale agreements stating that Aventi and OAFL were authorised to receive the shares ‘for and on behalf of [the plaintiffs]’ constituted evidence of the plaintiffs' consent to the appointment of Aventi and OAFL as agents to receive the moneys and shares. In this case, the agents had sold the property without authority. Thus, the sale itself constituted an act of conversion. The plaintiffs had a right of immediate possession of the shares when the latter were allotted and received by Aventi and OAFL for and on behalf of the plaintiffs or when Aventi and OAFL had consummated the conversion of the shares by selling them.
24.7 As part of the action in conversion, the plaintiffs proved that the defendants' acts were intentional and inconsistent with the plaintiffs' rights and that those acts excluded the plaintiffs from the use and possession of the shares. Damages were assessed at the time of the conversion based on the sale price of the shares multiplied by the number of shares.
24.8 The judge stated that corporeal objects representing intangible property such as cheques and share certificates may be the subject matter of conversion (see Yeow Chern Lean v Neo Kok Eng[2009] 3 SLR(R) 1131 (cheques), Cycle & Carriage Motor Dealer Pte Ltd v Hong Leong Finance Ltd[2005] 1 SLR(R) 458 (Preferential Additional Registration Fee Certificates) and EG Tan & Co (Pte) v Lim & Tan (Pte)[1985–1986] SLR(R) 1081 (share certificates)). Though the shares in this case were scripless, they were scripless only for the purpose of trading via book entry in the Central Depository (‘CDP’) register. The shares were in fact represented by physical share certificates issued by the issuing company, deposited with the CDP and registered in the name of the CDP or its nominee.
24.9 The action in conversion in Comfort Management Pte Ltd v Afco East Pte Ltd[2012] 4 SLR 66 arose from prior court processes initiated by the parties. The first defendant (‘Afco’), the landlord of certain premises, had earlier applied to the Subordinate Courts under the provisions of the Distress Act (Cap 84, 1996 Rev Ed) for the issue of a writ of distress against a particular firm (‘Alaskan Ice’) to recover rental due in respect of Afco's premises. At the time of the application, the plaintiff's equipment was located within the premises. Afco was granted leave to levy a distress for rent on the basis that Alaskan Ice had not paid rental for the premises and Alaskan Ice as tenant was in possession of the equipment. The writ of distress was then issued and executed on the equipment. The plaintiff later sought an injunction to restrain Afco from selling or otherwise disposing of the equipment and further, an order discharging the writ of distress or any sale made thereunder. However, the application was unsuccessful. The plaintiff did not appeal against the court decision and the equipment was sold by auction.
24.10 Three years later, the plaintiff claimed for damages for conversion and/or wrongful or illegal distress of the plaintiff's equipment. The plaintiff's position was that the equipment was wrongly seized and sold because it did not belong to Alaskan Ice but to the plaintiff as the defendant well knew at the time of the seizure.
24.11 The High Court decided there was no viable cause of action in conversion. The plaintiff, as the legal owner or bailee of most of the equipment, had legal standing to sue for conversion of the equipment. However, Afco had not committed any act of conversion of the equipment. The application for the writ of distress did not amount to a transfer of title of the equipment to the bailiff or to any other party. Afco was entitled to the issue of a writ of distress on the evidence produced before the court. Action taken in a court of law to protect one's legal rights could not be regarded as unauthorised even if, as a result thereof, a third party's right to possession of goods was interfered with.
24.12 The court also added that a person aggrieved by a writ of distress obtained through a proper court process cannot sue the applicant for the writ on the basis of the common law cause of action for wrongful or illegal distress. The remedy for such an aggrieved person lies in an action for malicious prosecution (see Chop Chye Hin Chong v Ng Yeok Seng[1934] 1 MLJ 265 at 266; Ginsin Holdings Pte Ltd v Tan Mui Khoon[1996] 3 SLR(R) 500 at [14]; Heng Chyu Kee v Far East Square Pte Ltd[2001] 3 SLR(R) 651 at [16]). The case authorities relate to malicious prosecution arising from wrongful distress specifically and not for malicious prosecution of civil proceedings in general.
24.13 In Chenet Finance Ltd v Lim Poh Yen (alias Lim Allene)[2012] SGHC 158, Chenet's claim in conspiracy against the defendants failed. One of the defendants counterclaimed that Chenet's legal action was brought in bad...
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