BNM v National University of Singapore

• Jurisdiction: Singapore
• Judgment Date: 09 January 2014
• Date: 09 January 2014
• Docket Number: Suit No 954 of 2009
• Court: High Court (Singapore)

BNM (administratrix of the estate of B, deceased) on her own behalf and on behalf of others

Plaintiff

and

National University of Singapore and another

Defendant

[2014] SGHC 5

Quentin Loh J

Suit No 954 of 2009

High Court

Contract—Exclusion clauses—Contract for insurance—Fourth party in action insured third party in action under public liability insurance policy—Whether exclusion clauses excluded insured's tort liability from coverage

Tort—Negligence—Plaintiff's husband drowned in swimming pool owned by first defendant and operated by second defendant—Whether defendants owed duty of care to visitors to swimming pool—Whether defendants had adequate and effective system of pool safety—Whether second defendant's lifeguards failed in their duty of care—Whether second defendant was independent contractor of first defendant—Whether first defendant adequately supervised second defendant in performance of its duties—Whether defendants' negligence caused plaintiff's loss

The plaintiff's husband drowned in a swimming pool owned by the first defendant (‘NUS’) and the plaintiff brought an action in tort against NUS for negligence. NUS had outsourced the supply of lifeguards and cleaning of the swimming pool to the second defendant (‘Hydro Aquatic’) and thereupon brought a third party action seeking contribution or an indemnity from Hydro Aquatic. Hydro Aquatic brought fourth party proceedings against its insurer under its public liability insurance policy. The insurer took the position that the public liability insurance policy did not cover liability arising from Hydro Aquatic's alleged negligence.

Held, dismissing the claim:

(1) Swimming pool owners and operators had a duty to take reasonable care and responsibility for the safety of all those who used their pools but not all such owners or operators were bound by the same scope and extent of duty of care. Swimming pools differed in size, depth and purpose and all facts and circumstances had to be taken into account in deciding the issue of legal proximity and the scope of the duty of care that was owed. Owners or operators of large or Olympic-sized swimming pools such as those commonly in use in public swimming complexes were under a duty to provide an adequate system of safety for their users as these pools were in effect open for public use. The potential users of the NUS swimming pool numbered in the thousands and therefore NUS had such a duty of care: at [33] to [36] .

(2) An adequate system of safety for such pools normally included having properly trained lifeguards stationed at appropriate locations around the pool. The lifeguards were expected to survey the pool regularly, to remain alert to and be trained to spot cases of swimmers in difficulty or drowning or near-drowning and to intervene promptly with the proper techniques. They were expected to notice and stop over-exuberant behaviour or horseplay amongst children or young adults that might endanger themselves or other swimmers. These lifeguards were also expected to be, as the first responders to any pool emergency, trained in the basic resuscitation techniques which were critical in such rescues: at [37] .

(3) There were considerations that militated against extending the scope or extent of such a duty too far: swimming had obvious public benefits and was a beneficial form of exercise. Reasonable precautions could be taken without undue or onerous expenses. In the present case, it was not unreasonable for one of the lifeguards to check on an entrants' eligibility to use the pool from time to time or to collect fees. This would also include the issuing of other sports equipment, provided it only involved one of the two lifeguards: at [38] .

(4) The standard of care that was reasonably to be expected of pool operators when the incident took place in June 2007 did not extend to providing automated external defibrillators (‘AEDs’) and oxygen resuscitators and lifeguards trained in the use of such equipment. This was not common or industry practice at that time: at [40] .

(5) NUS's duty of care to provide qualified and properly trained lifeguards was delegable as the claimant was not especially vulnerable or dependent on its protection and there was no antecedent relationship between the claimant and the defendant from which it was possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm. The deceased was engaged in an activity of his own volition and choosing and for which there were some inherent but not unduly hazardous risks: at [62] .

(6) NUS was not negligent in awarding the contract for pool cleaning and lifeguard services to Hydro Aquatic and the fact that Hydro Aquatic was asked to reduce its tender price was not per se evidence of negligence: at [67] .

(7) Hydro Aquatic was not an independent contractor as NUS had retained for itself a very high degree of control over the manner in which Hydro Aquatic was to carry out its work and therefore had a duty to supervise Hydro Aquatic. On the assumption that there was liability to the plaintiff, NUS had to share a third of the liability with Hydro Aquatic bearing two thirds: at [74] and [100] .

(8) While NUS had tendered for the use of oxygen resuscitators and AEDs in its tender requirements, this only created obligations that arose in the first instance between itself and Hydro Aquatic, but did not mean that the applicable standard of care was raised to this higher standard. NUS was contractually entitled to assure itself of a higher standard of lifeguard services than would have otherwise applied in the industry: at [77] .

(9) A defendant who conformed to the industry standard but which nonetheless strived to achieve a higher standard should not be penalised if it failed to reach that higher standard. It would discourage parties from reaching higher standards of care: at [81] .

(10) The lifeguards and therefore Hydro Aquatic fell short in the performance of their lifeguarding duties. The lifeguards had not surveyed the pool as they should have been doing. They were also wrong in placing themselves together at the same end of the pool when they ought to have been separated at opposite ends so that they could observe the pool from different vantage points: at [91] , [93] and [99] .

(11) The cardiopulmonary resuscitation given to the deceased once he was recovered from the water was of acceptable quality: at [97] .

(12) The negligence of the defendants did not cause the plaintiff's loss. The deceased was at the time of the incident in very poor health even though he was physically very active and his physical activities masked to some extent how ill he actually was. The deceased had severe ischaemic heart disease as his main arteries were badly blocked. He had suffered multiple heart attacks in the past without realising it. While swimming he had suffered cardiac arrhythmia which incapacitated him. The medical evidence showed that earlier intervention would not have saved him given his underlying medical condition, his submersion in the water and the state of his health when he was recovered from the pool. It would have made no difference if the AED or an oxygen resuscitator had been applied on him earlier: at [105] , [106] , [110] , [116] , [117] and [125] .

(13) There were two exclusion clauses on which the insurer relied. The first exclusion clause purported to exclude liability on the part of ‘any employee or voluntary worker of any hospital or ambulance organisation’. It did not exclude the insured's tort liability from coverage because the plain and ordinary meaning which would have been given to the phrase by the contracting parties was that it referred to employees of any hospital or ambulance organisation and not to employees of Hydro Aquatic. That was also the meaning that would be given to the exclusion by people in the industry: at [134] .

(14) The second exclusion clause purported to exclude liability in respect with injury, loss or damage caused by any professional error, neglect or omission but the lifeguards were not professionals and their negligence was therefore not excluded. The clause also did not refer to death but merely injury, loss or damage. Exclusion clauses should be construed strictly and if an insurer wished to provide that cover was excluded in certain circumstances it should have done so in clear words; if it did not, any ambiguity or lack of clarity would be resolved against it: at [136] and [137] .

Anne Teresa Hanlon or Gallacher v City of Glasgow District Council (1983) Inner House Cases 122 (refd)

Blyth v The Company of Proprietors of the Birmingham Waterworks (1856) 11 Exch 781; 156 ER 1047 (refd)

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (refd)

Cassidy v Ministry of Health [1951] 2 KB 343 (refd)

CIR v Maxse [1919] 1 KB 647 (refd)

Commonwealth v Introvigne (1982) 150 CLR 258 (refd)

Crupi v Royal Ottawa Hospital 1988 Carswell Ont 584 (refd)

Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296 (refd)

Gold v Essex County Council [1942] 2 KB 293 (refd)

Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 (refd)

Kondis v State Transport Authority (1984) 154 CLR 672 (refd)

MCST Plan No 2297 v Seasons Park Ltd [2005] 2 SLR (R) 613; [2005] 2 SLR 613 (refd)

MCST Plan No 2668 v Rott George Hugo [2013] 3 SLR 787 (refd)

Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762 (refd)

Plan Assure PAC v Gaelic Inns Pte Ltd [2007] 4 SLR (R) 513; [2007] 4 SLR 513 (refd)

Sato Kogyo (S) Pte Ltd v Socomec SA [2012] 2 SLR 1057 (refd)

See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd [2013] 3 SLR 284 (folld)

Singapore Telecommunications Ltd v Starhub Cable Vision Ltd [2006] 2 SLR (R) 195; [2006] 2 SLR 195 (refd)

Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR (R) 100; [2007] 4 SLR 100 (folld)

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