Animal Concerns Research & Education Society v Tan Boon Kwee

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 20 January 2011
• Neutral Citation: [2011] SGCA 2
• Date: 20 January 2011
• Docket Number: Civil Appeal No 60 of 2010
• Published date: 06 April 2011
• Plaintiff Counsel: Suresh Nair Sukumaran and Rajaram Muralli Raja (Straits Law Practice LLC)
• Hearing Date: 18 August 2010
• Defendant Counsel: Quek Mong Hua and Sharon Chong (Lee & Lee)
• Court: Court of Appeal (Singapore)
• Subject Matter: Tort

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is an appeal against the decision of the trial judge (“the Judge”), who dismissed the claim of Animal Concerns Research & Education Society (“the Appellant”) in the tort of negligence against Tan Boon Kwee (“the Respondent”), in the latter’s capacity as clerk of works (see Animal Concerns Research & Education Society v ANA Contractor Pte Ltd and another [2010] SGHC 85 (“the Judgment”)).

Despite the fact that the position of a clerk of works (now known as a “resident technical officer” (see regulation 2(e) of the Building Control (Amendment No 2) Regulations 2007 (S 495/2007) (“the 2007 Regulations”)) and one of two species of “site supervisor” (the other being a “resident engineer”) (see regulation 24(2) of the Building Control Regulations 2003) (S 666/2003) (“the 2003 Regulations”)) is mandated by ss 7 and 10 of the Building Control Act (Cap 29, 1999 Rev Ed) (“the Act”), this appears to be the first time this role has arisen for consideration in the Singapore courts.

Notwithstanding the change in terminology under the 2007 Regulations, the term “clerk of works” (rather than the term “residential technical officer”) will continue to be used throughout this judgment. The use of the term “clerk of works” is also more appropriate in the context of the actual facts of the present proceedings.

Background facts and the decision below Background facts

The Appellant is an Institution of Public Character under the Charities Act (Cap 37, 2007 Rev Ed), while the Respondent was and continues to remain a director of A.n.A Contractor Pte Ltd (“A.n.A”), the first defendant in the trial below.

The Appellant had planned to establish a shelter (“the shelter”) for animals on a plot of land along Jalan Lekar (“the site”) leased from the Singapore Land Authority (“SLA”), and appointed A.n.A as the contractor for the project. A.n.A in turn appointed the Respondent as the clerk of works/site supervisor for the project (who was to be employed by A.n.A, rather than by the Appellant). A.n.A also appointed two qualified persons (“QPs”), a qualified architect (“QA”) and a qualified engineer (“QE”), as the QPs for the architectural works and supervision of structural works, respectively, under s 11(1)(d)(ii) of the Act.

The project, however, was beset by a number of problems, which led to the Appellant suing A.n.A for breach of contract (and negligence) in the proceedings below.

Firstly, there was considerable delay in the execution of the project. Secondly, the Appellant alleged that A.n.A had failed to construct the shelter in accordance with the specified building plans. Finally, it transpired that, in the course of levelling the site, wood chips had been used as landfill, resulting in a foul smell and a discharge of blackish effluence from the site. This came to the attention of the SLA and the National Environment Agency (“NEA”), which considered that it amounted to pollution of the surrounding environment and contamination of Kranji Reservoir. As a result, the Appellant is obliged to excavate the rear portion of the site and reconstruct the animal enclosures located there before work at the shelter can begin in earnest.

In addition to its claims against A.n.A, the Appellant also sued the Respondent in his capacity as clerk of works of the project, alleging that he had negligently failed to supervise the levelling of the site and, in particular, failed to ensure that wood chips were suitable landfill material.

The decision below

The Judge found that, as the land at the site was not level, A.n.A was under a contractual duty to level it (see the Judgment at [16]). A.n.A did so by raising the lower-lying areas of the site in a process known as “backfilling”, ie, bringing in earth from elsewhere to raise the lower regions (see the Judgment at [17]). A.n.A contracted with an entity known as Lok Sheng Enterprises (“Lok Sheng”) to bring in wet soil and wood chips as backfill material for this purpose.

The Judge found, based on expert evidence adduced by the Appellant, that the wood chips A.n.A had caused to be used as backfill material were the cause of the pollution and contamination (see the Judgment at [28]).

The Judge held that the Appellant had proved its claims against A.n.A for breach of contract in respect of the delay, the failure to comply with the building plans, and the use of wood chips (see the Judgment at [34]–[35]). He considered that it was therefore unnecessary for the Appellant to have proceeded against A.n.A in negligence. There is no appeal against this portion of the Judge’s decision.

However, the Judge dismissed the Appellant’s action in negligence against the Respondent, on the basis that s 10(5) of the Act did not impose a duty on the Respondent to supervise the backfilling (see the Judgment at [39]). Section 10(5) of the Act provides as follows: (5) Every site supervisor appointed under this section in respect of any building works shall take all reasonable steps and exercise due diligence in giving – (a) in the case of large building works – full-time supervision to the carrying out of the structural elements of the building works; and (b) in the case of small-scale building works – immediate supervision to the carrying out of the critical structural elements of the building works,

to ensure that the structural elements or critical structural elements, as the case may be, of the building works in question are carried out in accordance with the plans of the building works supplied to him in accordance with section 9(1)(c) by a qualified person, and with any terms and conditions imposed by the Commissioner of Building Control.

There was no dispute that the project works were “small-scale building works” for the purposes of the Act. However, in the Judge’s view, s 10(5)(b) of the Act only obliges a site supervisor (including a clerk of works) to supervise the carrying out of “critical structural elements” of small-scale building works, and, according to s 2 of the Act, “structural elements” were “parts or elements of a building” (see the Judgment at [37]). Since earthworks (including backfilling) were not parts or elements of a building, much less “critical structural elements” the Judge held that the Respondent was not obliged to supervise the backfilling.

In addition, the Judge considered that, even if the backfill could be considered a “critical structural element” for the purposes of s 10(5)(b), a clerk of works’ obligation under s 10(5) of the Act was merely to ensure that such elements were carried out “in accordance with the plans of the building works… and with any terms and conditions imposed by the Commissioner of Building Control”. On the facts, however, there was no evidence that the building plans specified a particular material to be used as backfill, or that the Commissioner of Building Control had imposed any terms and conditions relating to the backfill.

The Appellant appeals against this portion of the Judge’s decision.

Arguments on appeal Appellant’s arguments

The Appellant submits that, on its true construction, s 10(5) of the Act does impose a duty of care on the Respondent. The Appellant points out that s 2 of the Act includes “foundations” and “all other elements designed to resist forces and moments” within the definition of “structural elements”. Under regulation 2 of the 2003 Regulations, “foundation” means:

that part of a construction immediately below the footings of a building, which is in direct contact with, and through which the weight of a building is transmitted to, the ground, and includes piling works …

The backfill, the Appellant argues, falls within the definition of “foundation” in the 2003 Regulations. Further, according to the testimony of the Appellant’s expert witness, the backfill “wholly supports the weight of the structures built at the back of the [s]ite” and is “one of the critical factors that would affect the structural stability of the structures built on the [s]ite”. As such, the Appellant submits, the backfill is a “structural element” within the meaning of s 2 of the Act, as it is both a “foundation” as well as an element which resists forces and moments, and, given its crucial significance is therefore a “critical structural element” of the building works. Consequently, according to the Appellant, the Respondent was obliged under s 10(5)(b) of the Act, to take all reasonable steps and exercise due diligence in giving “immediate supervision” to the carrying out of the backfilling to ensure that they were carried out in accordance with the building plans, which the Respondent failed to do.

In addition, the Appellant submits that the Respondent owed it a common law duty of care to supervise the backfilling, and to ensure that material used as backfill was suitable for its purpose. In this regard, the Appellant submits that the test for the existence of a duty of care, laid down by this court in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”), is satisfied on the facts of this appeal, and that the Respondent breached his duty of care to the Appellant, which caused loss to the Appellant that was not too remote.

Respondent’s arguments

The Respondent, unsurprisingly, submits that the Judge’s construction of s 10(5) of the Act is the correct one, and therefore that the Act did not impose the duty of care for which the Appellant contends.

In addition, the Respondent argues that the Act is conclusive as to a clerk of works’ duties, and that there is no reason to impose any common law duty of care above and beyond the statutory duties prescribed by the Act.

Finally, the Respondent submits that, even if a duty of care was owed to the Appellant, there had been no breach of this duty by the Respondent.

Issues...