Case Note

• Date: 01 December 2017
• Author: Kumaralingam AMIRTHALINGAM LLB (Hons), PhD (Australian National University); Chair, NUS Teaching Academy; Professor, Faculty of Law, National University of Singapore.
• Citation: (2017) 29 SAcLJ 500
• Published date: 01 December 2017

THE NON-DELEGABLE DUTY

Some Clarifications, Some Questions

Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd

[2016] 4 SLR 521

The non-delegable duty is a device used by courts to hold defendants accountable for acts of negligence of third parties in exceptional cases where the defendant has a special relationship with the plaintiff or has undertaken exceptionally hazardous activity. The rule is controversial as it imposes liability without personal fault on the defendant. The recent Singapore Court of Appeal decision of Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd provides welcome clarification of the general principles underpinning the non-delegable duty.

I. Introduction

1 When should a defendant be held liable for harm caused by the negligence of a third party engaged to perform a particular task? The law generally distinguishes between an employee, an agent, and an independent contractor. The rules on vicarious liability and agency would determine whether the employer or principal may be held liable. Employers are generally not liable for harm caused by the tort of an independent contractor, but in exceptional cases, courts have held the employers to come under a personal duty to ensure that care is taken. This type of duty is commonly known as the non-delegable duty.

2 The basic norm underpinning the non-delegable duty is that the defendant, by virtue of the nature of the activity undertaken or a special relationship with the plaintiff, cannot absolve itself of liability by

delegating the performance of the task to a third party. While the defendant may delegate the performance of a task to a carefully selected independent contractor, the defendant, nevertheless, remains under a duty to the plaintiff to ensure that reasonable care is taken; in short, the defendant is held liable for the independent contractor's negligence.1

3 There are several controversial aspects of the non-delegable duty. Firstly, it is perceived as imposing strict liability on the defendant, contrary to the fault-based regime of the tort of negligence. Secondly, it is criticised as a disguised form of vicarious liability circumventing the rule that an employer is not vicariously liable for the torts of its independent contractor. Thirdly, courts and academics have pointed out that it does not appear to rest on a firm theoretical foundation,2 conflating primary and secondary duty.

4 In some respects, analysing vicarious liability and the non-delegable duty is a quixotic exercise as we enter the age of the Fourth Industrial Revolution,3 where the binary distinction between employees and independent contractors is whimsical. New theoretical models building on theories of institutional liability, systemic liability, and enterprise risk will be required to meet the challenges brought on by

artificial intelligence,4 global business5 and the gig economy.6 These issues, however, are beyond the scope of this paper, which focuses on the Court of Appeal's authoritative judgment on the non-delegable duty in Singapore, Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd7 (“Ti ong Aik”).

II. Facts and background

5 The facts in Tiong Aik were that a condominium had been erected with defects in the common property, resulting in economic loss to the appellant, the management corporation, which sued four defendants: Mer Vue Developments Pte Ltd (“developer”); Tiong Aik Construction Pte Ltd (“Main Contractor”); RSP Architects Planners & Engineers (Pte) Ltd (“Architect”); and Squire Mech Private Limited. The actions against the developer included claims for breach of contract, breach of duty in the tort of negligence, and breach of statutory duty under the Building Maintenance and Strata Management Act8 (“BMSMA”). The actions against the Main Contractor were for negligence and breach of contract; the claims against the remaining two defendants were in negligence only. All the allegations of negligence against the first three defendants were with respect to acts of their subcontractors and all three pleaded in defence that they were not liable for the torts of their independent contractors.

6 Not unusual in the building and construction industry, there were several subcontractors involved; significantly, the Main Contractor had a total of 21 subcontractors (nine nominated and 12 domestic). All the alleged acts of negligence contributing to the defects were committed by various subcontractors. The four defendants sought to have certain preliminary issues, including those pertaining to the

liability of the first three defendants for the torts of their subcontractors, tried and determined prior to the main trial. The appeal arose from the High Court's decision on the preliminary questions.

7 The High Court decided that the Main Contractor and the Architect could not be held vicariously liable for the torts of their independent contractors,9 and that they were not directly liable in negligence as they had exercised reasonable care in appointing the independent contractors.10 Further, the High Court held that neither the Main Contractor nor the Architect owed a non-delegable common law duty to the appellant and that any non-delegable statutory duty owed under the Building Control Act11 (“BCA”) did not extend beyond compliance with safety regulations. The appellant brought an appeal against the High Court's decision, naming the Main Contractor and the Architect as respondents. The sole issue on appeal was whether the Main Contractor and the Architect owed a non-delegable duty to the appellant under the common law to build and design the condominium with reasonable care.12

III. Decision of the Court of Appeal

8 Chao Hick Tin JA, delivering the judgment of the court and dismissing the appeal, began by addressing the relationship between the non-delegable duty, vicarious liability, and the “independent contractor” defence. Chao JA reaffirmed that the doctrine of vicarious liability imposes liability on an employer for torts committed by its employee in the course of employment. An employer cannot be held vicariously liable for its independent contractors, but in exceptional cases, can be held personally liable if the court finds a non-delegable duty. The practical effect of the non-delegable duty is to render the defendant strictly liable for harm caused by the tort of its independent contractor,13 thus running counter to the orthodox fault-based liability of negligence. Non-delegable duties are, thus, exceptional and require compelling legal and policy justification.14

9 Chao JA, noting that the recent UK Supreme Court decision in Woodland v Swimming Teachers Association15 (“Woodland”) had been applied in Singapore by the High Court,16 endorsed Lord Sumption's reasoning in Woodland with the pithy observation that the categories of non-delegable duties had developed as the common law responded to particular situations to meet the “demand of justice”.17Woodland, it will be recalled, involved a school which had outsourced its swimming lessons to an independent contractor whose employees negligently caused severe brain injury to one of the school's pupils. In finding the school authority liable by virtue of a non-delegable duty, Lord Sumption, noting two broad categories of cases in which non-delegable duties are recognised, set out some general principles to determine the existence and scope of non-delegable duties.

10 The first category is based on the character of the act, involving cases where the defendant has employed an independent contractor to undertake an activity that is “either inherently hazardous or liable to become so in the course of [the] work”.18 The second is based on an antecedent relationship between the defendant and plaintiff that justifies “a positive or affirmative duty to protect [the plaintiff] against a particular class of risks”.19Woodland's characterisation of the second category draws heavily on Australian jurisprudence where the High Court of Australia, over a series of decisions, described the key features of non-delegable duty cases as involving the defendant's care, control, and custody of the plaintiff, and the plaintiff's reciprocal dependence and vulnerability.20 The focus in Tiong Aik was on the second category, with Chao JA noting that the “extra-hazardous” activity category is sui generis based on the particular facts.21 The crucial passage setting out the law in Singapore is as follows:22

In our judgment, moving forward, to demonstrate that a non-delegable duty arises on a particular set of facts, a claimant must minimally be able to satisfy the court either that: (a) the facts fall within one of the established categories of non-delegable duties; or (b) the facts possess all the [five Woodland] features … However, we would hasten to add that (a) and (b) above merely lay down threshold requirements for satisfying the court that a non-delegable duty exists – the court will additionally have to take into account the fairness and reasonableness of imposing a non-delegable duty in the particular circumstance, as well as the relevant policy considerations in our local context. [emphasis in original]

11 The five features identified in Woodland are reproduced for convenience:23

(a) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(b) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from...