Tort Law
| Author | Kumaralingam 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. |
| Published date | 01 December 2015 |
| Citation | (2015) 16 SAL Ann Rev 632 |
| Date | 01 December 2015 |
26.1 Tan Shiang Kok v SCM Services and the Management Corporation Strata Title Plan No 2811 and Exceltec Property Management Pte Ltd[2015] SGDC 88 (‘Tan Shiang Kok’) concerns a claim for breach of statutory duty pursuant to s 29 of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) which provides for the duty of a Management Corporation:
… to control, manage and administer the common property for the benefit of all the subsidiary proprietors … and to properly maintain and keep in good state and serviceable repair the common property.
(The claim in negligence is discussed below at para 26.70.) The plaintiff, who occupied one ground floor unit in a commercial building, claimed for serious injuries suffered when he slipped and fell inside a wet toilet located within the commercial building. The second defendant was the Management Corporation of the commercial building and the first defendant was the cleaning company engaged by the second defendant. Based on the evidence, the District Court concluded (at [16]) that the second defendant had breached its statutory duty.
26.2 It should be noted that one of the legal requirements for an action in breach of statutory duty is that Parliament had intended via the statute to confer on such an occupier of the premises a private right of action to sue in tort. Under the law, the plaintiff had to show that he was part of a limited class which the statute intended to protect: see Loh Luan Choo Betsy v Foo Wah Jek[2005] 1 SLR(R) 64 at [25] and Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd[2009] 4 SLR(R) 788. The District Court seemed to have assumed that this was the case without any discussion. In this regard, one relevant provision was s 88(1) which states that:
If a management corporation … commits a breach of any provision of this Part, or makes default in complying with any requirement of, or duty imposed on it by, any provision of this Part, …occupier of a lot shall be entitled to apply to the court … to recover damages for any loss or injury to the … occupier … arising out of the breach of any such provision from the management corporation … [emphasis added]
From the wording of the provision, it is likely that Parliament intended to protect occupiers of a unit within the commercial building such as the plaintiff from the statutory breaches of the management corporation (for a discussion of the scope of s 88, see Diora-Ace Ltd v Management Corporation Strata Title Plan No 3661[2015] 3 SLR 620 and Management Corporation Strata Title Plan No 2911 v Tham Keng Mun[2011] 1 SLR 1263).
26.3 In the two cases below, a distinction in approach to a scenario involving the stealing of commercial and trade secrets in an employment context and personal and private information of an individual obtained surreptitiously can be seen. In Tempcool Engineering (S) Pte Ltd v Chong Vincent[2015] SGHC 100 (‘Tempcool’), the plaintiff company sued its ex-employees (‘Woon’ and ‘Vincent’) and the new company (‘UBZ’) which the ex-employees had joined for stealing the plaintiff's trade secrets and confidential information. The High Court found that the plaintiff's drawings had the necessary quality of confidence as the drawings remained relatively inaccessible to the public. Moreover, they remained confidential as a whole even though certain aspects of the drawings were in the public domain (Invenpro (M) Sdn Bhd v JCS Automation Pte Ltd[2014] 2 SLR 1045). Woon and Vincent were aware that the plaintiff's drawings were confidential, and they were received and imparted in circumstances so as to import an obligation of confidentiality. As UBZ was the corporate vehicle through which Woon intended to use the confidential information, his knowledge was also imputed to UBZ. It should be noted that Woon was both the director and shareholder of UBZ.
26.4 As Woon had solicited Vincent to breach his obligation of confidence by copying the plaintiff's confidential information and sending it to him, the learned judge concluded that Woon had misused the confidential information. The corporate vehicle used by Woon, UBZ, was also liable for the misuse as the drawings and pricing information in the hands of Woon and UBZ were regarded as detrimental to the plaintiff. The High Court noted that Woon used the drawings to help the plaintiff's customers communicate with suppliers and thereby foster goodwill, and allowed UBZ to serve the plaintiff's customers without any need to return to the plaintiff for post-project help. The High Court further noted that the pricing information enabled Woon to compare prices quoted by the suppliers to the plaintiff and allowed UBZ to craft better bids in present or future project tenders. To the extent that the evidence showed that the defendants had exploited the plaintiff's confidential information for their own benefit (see Attorney-General v Guardian Newspapers Ltd (No 2)[1990] 1 AC 109 at 255, per Lord Keith), it may be argued that the requirement of detriment to the plaintiff was satisfied.
26.5 In comparison, ANB v ANC[2015] 5 SLR 522 involved divorce proceedings between the appellant (husband) and the wife (first respondent). The wife had obtained information from the husband's personal notebook computer in the matrimonial home. The information was passed to the second respondent (a law firm) for use in the divorce proceedings. The husband commenced proceedings claiming breach of confidence and applied for an interim injunction. The issue, with respect to interim injunction, was whether there was a serious question to be tried as to the existence of a breach of confidence by the respondents. The Court of Appeal held that the balance of convenience lay in favour of granting an injunction to preserve the confidential (or private) quality of the information.
26.6 The elements in a breach of confidence case outlined in Coco v A N Clark (Engineers) Ltd[1969] RPC 41 (‘Coco v A N Clark’) are as follows: (a) the information to be protected must have the necessary quality of confidence about it; (b) that information must have been imparted in circumstances importing an obligation of confidence; and (c) there must be an unauthorised use of the information to the detriment of the party who originally communicated it. The present case involved ‘surreptitious taking of personal information’: ANB v ANC at [18]. Instead of the elements in Coco v A N Clark, the relevant question to ask, according to the Court of Appeal, was whether the plaintiff had a ‘reasonable expectation of privacy’ in relation to that information: Campbell v MGN Ltd[2004] 2 AC 457 at [21], per Lord Nicholls of Birkenhead, and [85], per Lord Hope of Craighead. There was also no need to prove that there had been a misuse of the information. This development suggests that Singapore courts are prepared to directly examine the legal elements pertaining to the protection of privacy interests instead of attempting to ‘shoe-horn’ privacy interests within the traditional parameters of the equitable action of breach of confidence. Applying the second requirement in Coco v A N Clark above that the information must be imparted in circumstances importing an obligation of confidence, for instance, to a case of surreptitious taking of personal information, would appear quite out of place.
26.7 There have been numerous claims made under the tort of civil conspiracy, but many of them have been dismissed by the courts in 2015 for want of basic evidence required for establishing the legal elements of the tort. This section begins with two cases in which the claim in conspiracy succeeded followed by the problematic cases. One of the cases below also dealt with an application for mandatory injunction for conspiracy.
26.8 Li Siu Lun v Looi Kok Poh[2015] 4 SLR 667 (‘Li Siu Lun’) discusses important principles for the assessment of damages in a civil conspiracy case. The plaintiff, a patient at the defendant hospital, suffered injury to his right hand. Upon surgery performed by the doctor, the condition of his hand worsened. It was later discovered that the form on which the plaintiff had given his consent to surgical procedure for the right hand had been altered by a nurse who was employed by the defendant hospital. The plaintiff had only given consent to one surgical procedure performed by the doctor, but the form was altered to indicate that he had consented to an additional surgical procedure. Further, the hospital had concealed the alteration from him. The plaintiff took out an action in trespass and negligence against the doctor which claims were eventually settled. There was a separate action against the hospital (which included a claim in conspiracy) that proceeded till the third day of trial. Consent judgment was entered against the hospital in respect of the alteration and damages were assessed by the assistant registrar. On appeal against the assistant registrar's assessment, the High Court outlined the following principles:
(a) Where there is sufficient evidence of the existence of pecuniary loss, damages will be awarded even if the plaintiff cannot prove the precise quantum of its losses. Such damages are said to be at large. In order to compute the quantum of damages, the court should refer to ‘the yardstick of the reasonable man’: at [45], citing Dootson Investment Corp v Highway Video Pte Ltd[1997] 3 SLR(R) 823 at [7], per G P Selvam J. Belinda Ang Saw Ean J also stated that this approach was consistent with ‘common sense to achieve justice, not only to the plaintiff but the defendant, and, if applicable, among the defendants’: at [61], citing Holtby v Brigham & Cowan (Hull) Ltd[2000] EWCA Civ J0406–11; [2000] 3 All ER 421 at [20], per Stuart-Smith LJ.
(b) There is, however, no need to have recourse to the ‘yardstick of the...
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