Bae Junho v Daimwood, Samuel Lathan and another

• Jurisdiction: Singapore
• Judge: Jean Chan Lay Koon AR
• Judgment Date: 06 June 2019
• Neutral Citation: [2019] SGHCR 9
• Court: High Court (Singapore)
• Docket Number: Suit No 1261 of 2018 (Summons No 355 of 2019 & Summons No 796 of 2019)
• Year: 2019
• Published date: 21 June 2019
• Hearing Date: 28 May 2019,22 March 2019
• Plaintiff Counsel: Anil Narain Balchandani (Red Lion Circle)
• Defendant Counsel: Yeo Yan Hui Mark, Lew Shaun Marc, Charmaine Lim (Engelin Teh Practice LLC),Bhargavan Sujatha (Gavan Law Practice LLC)
• Subject Matter: Civil Procedure,Pleadings,Striking out
• Citation: [2019] SGHCR 9

Jean Chan Lay Koon AR:

Summons No. 355/2019 is the 1st defendant’s application to strike out the plaintiff’s claim against the 1st defendant under O 18 rule 19(1)(a) of the Rules of Court (Cap. 332, R 5, 2006 Rev Ed) (“ROC”). Summons No. 796/2019 is the 2nd defendant’s application to strike out the plaintiff’s claim against the 2nd defendant under all four limbs of O 18 r 19(1).

Relevant background facts

At all material times, the plaintiff was lawfully married to a woman named Jenna. Both the plaintiff and Jenna were South Korean nationals and had moved to Singapore. They are now undergoing divorce proceedings or have been formally divorced. It is undisputed that the primary cause of their marital breakdown was due to an affair between Jenna and the 1st defendant.

At all material times, the 1st defendant was an English language lecturer in the employment of the 2nd defendant. The 2nd defendant is a private educational institution which conducts various business and finance courses. It also conducts preparatory courses in English to help equip students who are not proficient in the English language. Sometime in January 2018, the plaintiff helped to enrol Jenna in a preparatory course in English (“PCE”) with the 2nd defendant school. Jenna formally commenced her PCE on 31 January 2018. The 1st defendant and Jenna got to know each other as a result of the PCE classes conducted within the 2nd defendant’s school premises.

According to the statement of claim (“SOC”), the plaintiff started experiencing marital problems with Jenna sometime in March 2018. The plaintiff started to suspect that Jenna might be having an affair. Just before he left for a business trip to Bangkok in May 2018, the plaintiff installed a surveillance camera in the living room of his matrimonial home which he shared with Jenna. He also engaged the services of a private investigation firm to carry out an investigation to ascertain whether the 1st defendant and Jenna were having an affair.

Between 13 May 2018 to 18 May 2018, while the plaintiff was away in Bangkok, the 1st defendant and Jenna had multiple occasions of consensual sex in the matrimonial home. These sexual acts were caught on surveillance camera footages which the plaintiff viewed from his mobile phone and laptop. The plaintiff was naturally very shocked and upset by what he saw on the surveillance camera footages and he continued to view the footages even after the sexual acts were over.

The plaintiff subsequently returned to Singapore and confronted Jenna. He chased her out of the matrimonial home and cancelled her dependant’s pass. He then commenced divorce proceedings in South Korea.

Plaintiff’s alleged causes of actions against the two defendants

It is pleaded in the SOC that the plaintiff was shocked and stricken by what he saw on the surveillance camera footages and continued to remain in this devastated state of mind as at the time of commencement of these legal proceedings. As a result of the illicit affair, it is pleaded that he is now in clinical depression and he is seeking psychiatric treatment from Dr Lim Yun Chin (“Dr Lim”), a consultant in psychological medicine, Raffles Hospital. A copy of Dr Lim’s medical report dated 24 August 2018 was attached to the SOC. In his medical report, Dr Lim opined that the plaintiff is suffering from depression associated with anxiety as a result of his wife’s extra-marital affair.

The plaintiff claimed that the psychiatric injury suffered by him was caused by and is directly attributable to the 1st defendant’s conduct of engaging in an illicit affair with Jenna when the 1st defendant was fully aware that Jenna was married to him. The plaintiff therefore claimed that the 1st defendant stood in a proximate relationship with the plaintiff arising from his knowledge that Jenna was his wife and that it was reasonably foreseeable that if he had an illicit sexual relationship with Jenna, the plaintiff would most certainly sustain psychiatric injury to the extent which he had sustained, upon learning of the illicit affair. It is further submitted by the plaintiff in his written submissions that his cause of action against the 1st defendant is based on the 1st defendant’s breach of duty of care owed to him in causing a “recognisable psychiatric injury” arising out of his negligence towards the plaintiff.

In respect of the 2nd defendant, the plaintiff’s main cause of action is based primarily on vicarious liability of the 1st defendant’s wrongdoing as an employee of the 2nd defendant during the course of his employment with the 2nd defendant. The plaintiff also pleaded an alternative ground of non-delegable duty of care owed to the plaintiff.

The plaintiff set out several facts in [15] and [16] of his written submissions to establish how proximity existed between the 1st defendant/ 2nd defendant and the plaintiff, which if proven at trial would result in a prima facie duty of care owed by the two defendants to him under the two-stage test to determine duty of care as pronounced in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”). The duties of care which the plaintiff claimed the 2nd defendant owed to him are summarised in [17] of his written submissions, although these should have been properly pleaded in the SOC in the first place. These duties of care are stated as: not to impair or damage the marital relationship between the plaintiff and Jenna; not to cause any physical or psychiatric harm or damage to Jenna and/or the plaintiff; to provide a safe environment for Jenna to be in so as to assure the plaintiff that Jenna was safe; for the 2nd defendant to censure and reprimand its employees for wrongdoing brought to the 2nd defendant’s attention. It surmises that the plaintiff’s cause of action against both defendants are grounded on the tort law of negligence as it is repeatedly pleaded and submitted to me that the two defendants owed him a duty of care.

Main issue of the applications

I am of the considered view that the main issue of the two applications for striking out is largely the same. The issue is whether the plaintiff’s SOC discloses a reasonable cause of action against both defendants based on the pleaded facts.

The test of duty of care

In the recent case of NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd [2018] 2 SLR 588 (“NTUC Foodfare”), the Court of Appeal has summarised the test of duty of care set out in Spandeck:

The Spandeck test

38 A duty of care will arise in tort if (a) it is factually foreseeable that the defendant’s negligence might cause the plaintiff to suffer harm; (b) there is sufficient legal proximity between the parties; and (c) policy considerations do not militate against a duty of care: see Spandeck at [73], [77] and [83]. 39 The key issue in this appeal is whether the proximity requirement is made out. The proximity requirement focuses on “the closeness of the relationship between the parties”: see Spandeck at [77]. The crux of the inquiry is whether the plaintiff was so closely and directly affected by the defendant’s actions that the latter ought to have had the former in contemplation in acting: see Donoghue v Stevenson[1932] AC 562 at 580 (per Lord Atkin) and Andrew Robertson, “Justice, Community Welfare and the Duty of Care” (2011) 127 LQR 370 at 374. The proximity requirement serves the normative role of determining whether, as a matter of interpersonal justice between the parties, the defendant should be held to have owed a duty of care to the plaintiff: see ACB ([4] supra) at [49]. 40 What are the factors which a court should consider in assessing whether there was sufficient legal proximity between the parties? (a) In Spandeck, we held, endorsing the observations of Deane J in Sutherland Shire Council v Heyman (1985) 60 ALR 1, that proximity includes physical, circumstantial and causal proximity, and incorporates the twin criteria of voluntary assumption of responsibility (by the defendant) and reliance (by the plaintiff): see Spandeck at [81]. (b) In Anwar Patrick Adrian v Ng Chong & Hue LLC[2014] 3 SLR 761 (“Anwar”), we developed the proximity requirement by holding that it may be apt to consider “proximity factors” in applying that requirement, citing David Tan & Goh Yihan, “The Promise of Universality: The Spandeck Formulation Half a Decade On” (2013) 25 SAcLJ 510 (“Tan & Goh”). We recognised two proximity factors: the defendant’s knowledge in relation to the plaintiffs (see Anwar at [148]–[149]) and control over the situation giving rise to the risk of harm and the plaintiff’s corresponding vulnerability (see Anwar at [154]). With regard to the proximity factor of knowledge, the relevant knowledge is knowledge of the risk of harm, or of reliance by the plaintiff, or of the vulnerability of the plaintiff: see Tan & Goh at paras 26–29.

Another relevant case on point is the High Court case of AYW v AYX [2016] 1 SLR 1183 (“AYW v AYX”). In AYW v AYX, the plaintiff was a student studying in the defendant school from 2010 to 2013. The plaintiff sued the defendant school in the tort of negligence for failing to effectively intervene in the bullying she claimed to have faced from her schoolmates. The alleged bullying comprised of rude, insensitive and sarcastic remarks made by her schoolmates both online and in school. There was no threatened or actual physical violence.

The plaintiff’s parents were involved and had many discussions with the teachers and principals of the school. Eventually, the plaintiff left the school and moved to the United Kingdoms (“UK”) to complete her A-level education in a specialist music school. The plaintiff claimed that she was forced to leave Singapore to complete her A-level education and suffered from eczema because of the bullying. She thus claimed the costs of her A-level education in the...