BNM (administratrix of the estate of B, deceased) on her own behalf and on behalf of ors v National University of Singapore and anor

• Jurisdiction: Singapore
• Judge: Quentin Loh J
• Judgment Date: 09 January 2014
• Neutral Citation: [2014] SGHC 5
• Court: High Court (Singapore)
• Docket Number: Suit No 954 of 2009
• Published date: 15 January 2014
• Year: 2014
• Hearing Date: 23 August 2012,25 April 2013,22 February 2013,09 April 2013,29 November 2012,27 November 2012,06 August 2012,21 February 2013,08 April 2013,22 April 2013
• Plaintiff Counsel: Beh Eng Siew (Lee Bon Leong & Co)
• Defendant Counsel: Anparasan s/o Kamachi (KhattarWong),K P Allagarsamy (Allagarsamy & Co),Yuen Simon (Legal Clinic)
• Subject Matter: Tort,Negligence
• Citation: [2014] SGHC 5

Quentin Loh J:

On 6 June 2007, B, (“the Deceased”), an IT network manager employed by the first defendant, the National University of Singapore (“NUS”), drowned whilst swimming at a swimming pool owned by NUS. His widow, BNM, brings this action in tort on behalf of her two young children, aged 3 and 6 in June 2007, as administratrix of the Estate of the Deceased and on her own behalf. I will refer to her as “the Plaintiff”. The children are now aged 9 and 12.

NUS decided to outsource the supply of lifeguards and cleaning of the swimming pool in late 2006. The second defendant, Hydro Aquatic Swimming School (“Hydro Aquatic”), was the only tenderer and was accordingly awarded the contract to supply lifeguards and clean the swimming pool for the period of one year from 1 April 2007 under a written contract. Hydro Aquatic was therefore providing lifeguard services at the relevant time. NUS brought a third party action seeking contribution or an indemnity from Hydro Aquatic in the event that it was found liable to the Plaintiff and the Plaintiff added Hydro Aquatic as a second defendant. Hydro Aquatic brought fourth party proceedings against its insurer, Overseas Assurance Corporation Limited (“OAC”), under a public liability insurance policy which, Hydro Aquatic contends, would cover any liability found against it in the present suit. OAC took the position that the insurance policy does not cover the liability arising out of Hydro Aquatic’s alleged negligence.

The trial, which was solely on liability, took place over 17 days in three tranches and at the end I reserved judgment which I now give. This has been a tragic and difficult case.

The respective cases

The Plaintiff makes the following allegations of negligence (and in occupier’s liability) against the Defendants: NUS as owner and occupier of the swimming pool owed a duty of care to all visitors or users of the swimming pool and this duty of care extended to the engagement of Hydro Aquatic as their subcontractor for the provision of lifeguards; NUS failed to adequately or properly supervise Hydro Aquatic and with due care and attention; NUS and Hydro Aquatics failed to exercise their duty to ensure that they had competent and well-trained lifeguards to observe and respond expeditiously to the Deceased when he was in distress in the water; NUS and Hydro Aquatic did not have an effective emergency response system/plan which consisted of trained and qualified lifeguards to provide timely, relevant and proper emergency medical assistance to any swimmers in the swimming pool who were in distress, including but not limited to the use of an Oxyviva resuscitator machine (“Oxyviva”) and an automated external defibrillator (“AED”) for the purposes of resuscitation; The standard of care given to the Deceased after he was pulled out of the water was not what should reasonably have been expected of a lifesaver acting in a closed and controlled environment, as: The lifeguards were not attentive and did not notice the struggles and distress of the Deceased in the water; The lifeguards were not stationed so as to be able to observe and react expeditiously to those patrons who were in distress; The lifeguards were not aware where the lifesaving equipment, namely, the Oxyviva and AED were placed or kept; The lifeguards were not competent in resuscitating drowning victims such as the Deceased and furthermore were not trained to use the Oxyviva and the AED; The AED was not brought expeditiously to the scene and was not used within a reasonable time; Hydro Aquatic also owed the above duties to the Deceased and breached those duties resulting in the death of the Deceased; and As a result of NUS’s and/or Hydro Aquatic’s negligence and breach of the above duties owed to the Deceased, the Deceased drowned.

NUS’s case, in the main, is that: The management and maintenance of the swimming pool were delegated to Hydro Aquatic through a properly carried out tender process and NUS were not negligent in doing so; Hydro Aquatic was engaged as an independent contractor to provide lifeguard and pool cleaning services at the swimming pool from 1 January to 31 December 2007; NUS was not negligent in appointing Hydro Aquatic as an independent contractor as Hydro Aquatic had met the tender requirements, which, inter alia, required it to provide lifeguards who were properly trained in the use of the Oxyviva and AED equipment; Because it was Hydro Aquatic rather than NUS that was the occupier of the swimming pool, NUS did not owe any duty to the Deceased either as occupier of the swimming pool or in negligence; instead, it was Hydro Aquatic who owed a duty of care as an occupier; Hydro Aquatic also had to ensure that properly trained lifeguards were stationed at the swimming pool and NUS was not vicariously liable for any breaches of duty of care and/or negligence on the part of Hydro Aquatic, its servants and/or agents; In any case, NUS denies that it had a duty to provide lifeguards with training in the use of the Oxyviva and AEDs and denies that the lifeguards were negligent in their rescue efforts; Further and in any case the Deceased had a severe and pre-existing heart condition which would have made the likelihood of his survival very small no matter what was done; so that even if there was any negligence, it did not cause the death of the Deceased or the Plaintiff’s loss and damage; In the event that NUS is held liable to the Plaintiff, then NUS claims to be indemnified by Hydro Aquatic on the following grounds: NUS engaged Hydro Aquatic as an independent contractor to provide lifeguard and pool cleaning services and that under the agreement, Hydro Aquatic had to: Provide lifeguards who were at least current holders of a “Bronze Medallion” from the Singapore Life Saving Society (“SLSS”) or its equivalent; Provide lifeguards trained in spinal injury management and in the use of the Oxyviva and AED; Provide lifeguards who had to be vigilant and alert while on duty, so as to be able to prevent any accident in the swimming pool, to rescue persons having difficulties in the swimming pool, and to apply resuscitation and administer first aid and summon the ambulance if necessary; Provide first aid equipment, including the Oxyviva and an approved AED; Hydro Aquatic had a duty to take reasonable care to see that visitors and users of the swimming pool were reasonably safe in using the premises for the purposes for which they were permitted to be present; and Hydro Aquatic failed to discharge its duty to take reasonable care to see that the Deceased would be reasonably safe in using the swimming pool and was in breach of its duty of care in tort.

Hydro Aquatic denies the claims against it and the allegations of negligence, want or care and/or breach of contract. It claims that its lifeguards responded promptly, rushed to the aid of the Deceased on noticing that he was in difficulty or distress, applied continuous cardio pulmonary resuscitation (“CPR”), and provided aid using the Oxyviva and AED. The AED was used to apply an electrical charge to the Deceased. Hydro Aquatic had done all it could reasonably be expected to do. Hydro Aquatic advances the defence that in any case, the cause of death of the Deceased was due to his ischaemic heart disease as recorded in the Deceased’s autopsy report. In so far as Hydro Aquatic is held liable to the Plaintiff or NUS, it claims an indemnity under their public liability policy taken out with OAC.

OAC denies that its policy covers Hydro Aquatic in the circumstances and relies on its policy terms and conditions. I heard oral submissions on this as a preliminary issue at the start of the trial, and ruled that in the circumstances of this case, if there is any liability on the part of Hydro Aquatic to the Plaintiff or NUS, Hydro Aquatic was entitled to an indemnity from OAC under its policy. The reasons for this decision are set out below at [127] to [137].

The evidence led in the trial covered four broad issues: What standards, if any, were the owners of public swimming pools expected to apply in June 2007 with regard to the provision of lifeguards and the provision of safety equipment such as the Oxyviva and the AED; Whether NUS properly supervised the services provided by Hydro Aquatic and whether it noticed any shortfall in performance by Hydro Aquatic and if so whether it did anything about it; Whether the lifeguards provided by Hydro Aquatic on 6 June 2007 were negligent in the performance of their duties at the NUS swimming pool; and germane to this were the factual issues of the positions taken up by the lifeguards at the relevant times, their watchfulness over the swimmers, their actions after they became aware of the Deceased’s predicament, and whether they knew where the Oxyviva and the AED were kept and how to use them; What was the medical condition of the Deceased prior to his drowning, what was the cause of his drowning, and whether he had a heart attack that led to him getting into difficulties in the pool.

Facts

Apart from the medical condition of the Deceased, which I shall deal with later, some of the background facts and facts leading up to the incident are not very contentious. What was disputed was what happened in those few fraught minutes from the time when the Deceased was first seen to be in trouble at or near the bottom of the pool to the time when he was recovered from the water and unsuccessful attempts were made to resuscitate him. The following constitute my findings of fact.

The Deceased was at the time of his death aged 40 and employed as an IT network manager in the NUS computer centre. It was part of his routine to swim together with a friend, Er Chee Teck (“Er”), once a week during lunchtime at the NUS swimming pool.

The swimming pool was a standard Olympic sized pool, 50m long and 25m wide, with a separate smaller...