Tort Law

Published date01 December 2014
Date01 December 2014
Citation(2014) 15 SAL Ann Rev 502
AuthorKumaralingam AMIRTHALINGAM LLB (Hons), PhD (Australian National University); Professor, Faculty of Law, National University of Singapore. Gary CHAN Kok Yew LLB (Hons), MA (National University of Singapore), LLM, BA (University of London); Associate Professor, School of Law, Singapore Management University.
Breach Of Statutory Duty

25.1 Teo Wei Hsin Lawrence (Zhang Weixin), Tin Yan Ying Geraldine (Cheng Yanying Geraldine) v Management Corporation Strata Title PlanNo 1525[2014] SGDC 350 involved a suit by the owners of a condominium unit (the plaintiffs) against the management corporation of the development (the defendant). Three months after purchasing the unit, the plaintiffs undertook renovation works which were completed after about five months. Prior to moving in, the plaintiffs discovered mould on the interior walls and on their new cabinets located at the rear end of the unit. As the unit was in the corner of the development, the outside of the walls in that corner of the unit were also the external walls of the building, which were common property under the management of the defendant.

25.2 The plaintiffs alleged that moisture was seeping into their unitfrom the external wall due to the defendant's breach of its duty of maintenance under s 29(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed). It was not disputed by the defendant that such a breach, if proved, may give rise to a cause of action for breach of statutory duty. The defendant disputed that there was water see page through the external walls, arguing instead that the moisture was due to the renovation works and improper storage of we tutensils by the plaintiffs.

25.3 Both sides presented expert evidence on the cause of the moisture in the unit. The plaintiffs' expert suggested that there was inadequate drainage or a barrier to keep the soil and moisture away from the external wall. The District Judge accepted the plaintiffs' evidence and, relying on observations in Britestone Pte Ltd v Smith & Associates Far East Ltd[2007] 4 SLR(R) 855 at [60], held that once the plaintiff had discharged the evidentiary burden, the defendant had to adduce sufficient evidence to rebut the plaintiff. It should be noted that this approach of shifting the evidential burden carries a real risk of reversing the legal burden of proof in practice.

25.4 The District Judge noted that there were several possible causes of the moisture damage, and instead of requiring the plaintiffs to prove that the defendant's breach of statutory duty caused the damage, found against the defendant on the ground that the defendant was unable to prove that it had not caused the damage. It is suggested that, instead of relying on a reversal of the evidential burden and a presumption of causation, the same result could have been reached on the evidence. In fact, the District Judge did consider the evidence of both experts and preferred the evidence of the plaintiff over that of the defendant.


25.5 In Clearlab SG Pte Ltd v Ting Chong Chai[2015] 1 SLR 163 (Clearlab SG Pte Ltd), the first four defendants were formerly employed by the plaintiff company which manufactured and sold contact lens. The ninth defendant founded a rival company (the fifth defendant) which also engaged in the same business as the plaintiff. The first four defendants had joined the fifth defendant after they left the plaintiff and had taken confidential documents from the plaintiff. The plaintiff claimed against the defendants and others for, inter alia, breach of confidence, conspiracy by unlawful means, inducing breach of contract and conversion.

25.6 Conversion was established with respect to certain PET mould casts (PET casts) made by the plaintiff. The first defendant had instructed the third defendant to bring the PET casts to the fifth defendant and those PET casts were subsequently found at the fifth defendant's premises. Lee Seiu Kin J found the two defendants personally liable and the fifth defendant vicariously in the tort of conversion for taking the PET casts.

25.7 There was, however, insufficient evidence as to the alleged conversion of the plaintiff's software licence. Lee J referred to the House of Lords' decision of OBG Ltd v Allan[2008] 1 AC 1 for the proposition that the tort of conversion was traditionally confined to chattels, rather than intangible choses in action. A software licence was not a chattel and, therefore, not regarded as capable of being converted. Even if a software licence could be converted, there was a need to examine the terms of the licence to use. The plaintiff did not produce any evidence as to whether the licence was personal or proprietary in nature. One of the defendants had wrongfully retained an activated copy of the software on his personal laptop and thereby interfered with the plaintiff's right to activate the software on a different computer. However, the plaintiff could have, at any time, instructed the software vendor to remotely deactivate the software on the defendant's laptop. It was, therefore, unclear whether the degree of control on the plaintiff's part to recover the use of the software together with the defendant's mere omission to deactivate the installed software on his laptop amounted to conversion.

25.8 In any event, the plaintiff had not produced any evidence of loss suffered during the period of the alleged conversion. Even if conversion were established in respect of the licence, the plaintiff would at most be able to claim for nominal damages.

25.9 Fairmacs Shipping & Transport Services Pte Ltd v Harikutai Engineering Pte Ltd[2015] 1 SLR 904 was a case on the quantification ofdamages to be awarded for conversion of a consignment of river sand (cargo) purchased by the plaintiff. The first defendant was the contracting carrier and the second defendant, as the performing carrier, was sub-bailee of the cargo. The defendants failed to deliver the cargo. The second defendant subsequently sold the cargo on account of the first defendant's default in the payment of charter hire owed to the second defendant. The plaintiff claimed for the losses it incurred based on the market price of comparable river sand at the relevant place and time. The assistant registrar rejected the plaintiff's claim and assessed damages based on the costs of replacing the cargo.

25.10 Belinda Ang Saw Ean J allowed the appeal against the assistant registrar's decision. The learned judge referred to the trite rule that the normal measure of damages is assessed as at the time and place of conversion by reference to the market value of the goods: see The Arpad[1934] P 189 and Chartered Electronics Industries Pte Ltd v Comtech IT Pte Ltd[1982] 2 SLR(R) 1010. In the present case, there was a market for the cargo at the place where the plaintiff could have readily bought the equivalent amount of the cargo. The plaintiff produced evidence of its sister company's invoices for the sale of cargo at the relevant place and time to prove that there was a market with willing buyers and sellers of the cargo. The evidence that there was no market price index for the cargo at the above-mentioned place, as put forth by the defendant, did not necessarily indicate that there was no market and no market value for the cargo. That is, there were other ways of assessing market value. Deductions from the market value were eventually made for the customs duty and landing charges as well as the freight which would have to be paid by the plaintiff to the seller upon the delivery of the cargo.

25.11 Ang J also noted that the plaintiff was entitled to claim for restitutionary damages for a wrong at common law rather than the usual compensatory damages. The learned judge offered two plausible analyses for the claim for restitutionary damages: the plaintiff may (a) elect to waive the tort claim and sue the defendant for money had and received for the plaintiff's use (Schindler Lifts (Singapore) Pte Ltd v People's Park Chinatown Development Pte Ltd[1990] 1 SLR(R) 583 at [15]); or (b) pursue the tort claim and elect to waive the remedy of damages and claim instead the defendant's wrongfully obtained benefit:United Australia Ltd v Barclays Bank Ltd[1941] 1 AC 1. The learned judge also observed that with the alternative remedy, it might be easier for the plaintiff to prove the sum the defendant had received for the sale rather than to establish the market price of the goods.


25.12 In Invenpro (M) Sdn Bhd v JCS Automation Pte Ltd[2014] 2 SLR 1045, the defendants and the plaintiff were competitors in the business of manufacturing and supplying cleaning equipment and services for the hard disk manufacturing industry. The plaintiff claimed that the defendants had infringed the plaintiff's copyright in producing a batch scrubber. This claim was eventually dismissed. The defendants counterclaimed against the plaintiff in defamation based on a letter from the plaintiff in Singapore to a third party in the US. The letter stated that the plaintiff was commencing a legal action for breach of confidence against the defendants and that the defendants had built a batch scrubber for the third party which contained the alleged confidential information. The plaintiff stated it was putting the third party on formal notice that the batch scrubber incorporated the confidential information and that it wished to reserve its rights against the third party for the time being. The letter made it clear that proceedings were in progress and there was no mention of any findings against the defendants. George Wei JC (as he then was) concluded that the letter, read as a whole, was not defamatory from the perspective of a reasonable reader.

25.13 In Lee Hsien Loong v Roy Ngerng Yi Ling[2014] SGHC 230, the defendant published on his blog, The Heart Truths to Keep Singaporeans Thinking by Roy Ngerng (The Heart Truths), an article entitled Where Your CPF Money Is Going: Learning from the City Harvest Trial. The defendant also published a link to the article on his Facebook page and on The Heart Truths' Facebook page. The judicial determination of the natural and ordinary meaning of the disputed words and images was made pursuant to O 14 r 12 of the Rules of Court (Cap 322, R 5...

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