Case Note

AuthorKumaralingam AMIRTHALINGAM LLB (Hons), PhD (Australian National University); Professor, Faculty of Law, National University of Singapore; Senior Director (Research & Policy), Attorney-General's Chambers, Singapore.
Date01 December 2013
Citation(2013) 25 SAcLJ 580
Published date01 December 2013

Of Gordian Knots and Apron Strings

See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd

[2013] 3 SLR 284

The common law rules on occupier's liability were created to determine the scope of the duty owed to entrants arising from dangers on the occupier's property. The subsequent development of the general tort of negligence based on Lord Atkin's neighbour principle created tensions between the special rules of occupier's liability and the general principles of negligence. Many jurisdictions have sought to rationalise these rules and the Singapore Court of Appeal followed suit in a recent decision. This case note examines the restated law on occupier's liability and comments briefly on the general approach to the common law of negligence in Singapore.

I. Introduction and factual background

1 The rules governing the liability of occupiers of premises for harm caused to entrants to those premises has had a long and vexed history.1 It should be noted at the outset that occupier's liability is not a tort in itself.2 It merely refers to a set of rules governing the scope of the duty owed by an occupier to an entrant. While the law of negligence is generally accepted as the proper realm of occupier's liability, historically, the rules have been influenced by norms and values of property and

contracts,3 which were geared toward protecting the defendant's sovereignty over property, and liberty to transact on his or her agreed terms. Thus, different duties were owed to different categories of entrants, ranging from the contractual entrant who was owed the highest duty, to the trespasser who was owed no duty of care and could only claim if he or she were deliberately or recklessly injured by the occupier.

2 These categories and technicalities surrounding occupier's liability gave rise to dissatisfaction;4 most significantly, the rules pertaining to trespassers occasionally resulted in injustice, especially in cases involving children or other “innocent” trespassers. The advent of a general law of negligence, based on the neighbour principle articulated by Lord Atkin in Donoghue v Stevenson,5 provided a strong impetus for the rationalisation of occupier's liability. Most common law jurisdictions have subjected the technical rules of occupier's liability to the general principles of negligence either through judicial activity or by legislative mandate.6

3 Following the Singapore Court of Appeal's decision in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency (“Spandeck”),7 which mandated that there should be one universal test for all areas of negligence, it was arguably no longer tenable to continue having separate rules governing occupier's liability.8 Nevertheless, the courts continued to apply the special occupier's liability rules, sometimes separately and sometimes concurrently, with the general

principles of negligence.9 The issue was finally settled by the Singapore Court of Appeal in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd (“See Toh”),10 which clarified that the special rules governing occupier's liability should no longer be applied and liability should be governed by the general principles of negligence as stated in Spandeck. This decision brings welcome relief to the confusion that existed. However, it also leaves some questions unanswered and raises some new ones.

4 This article addresses two issues. The first, and obviously most significant, is the law on occupier's liability and its rationalisation within the general tort of negligence. Beyond the question of principle is the question of application of the law to the facts; it is not altogether clear how the Spandeck test is to be applied to occupier's liability, and indeed there is disagreement between the judges in See Toh on this point. Secondly, the case refocuses attention on the general test for duty of care crafted in Spandeck and the pursuit of an “autochthonous” common law of Singapore.

II. Facts and background

5 The claimant in See Toh was an engineer who was called to service the radar equipment of a tugboat, the Fortune II, which at the material time was being used to tow a barge, the Namthong 27. The vessels were located at 9/11 Tuas Basin Close (“9/11 TBC”). The first defendant, Ho Ah Lam Ferrocement (Pte) Ltd (“HAL”), had leased 9/11 TBC from Jurong Town Council. HAL had then sublet 9/11 TBC to the second defendant, Lal Offshore (“Lal”), but had reserved a portion of 9/11 TBC, including its entire shoreline for it (HAL) to carry on its business activities of repairing vessels and loading materials onto barges.11 The third defendant, Asian Lift, had been engaged by a third party, Keppel FELS Ltd, to take delivery of living quarters fabricated by Lal at 9/11 TBC. Asian Lift used a crane barge, the Asian Hercules, to carry out this task.

6 During the berthing of the Asian Hercules, the crew used mooring ropes to tether the barge to the shore of 9/11 TBC. One of the mooring ropes fouled at the ramp of the Namthong 27. Despite knowing

this and being aware of the risk posed by the fouling, the captain of the Asian Hercules continued with the mooring operation. On the day of the incident, the claimant initially went to 15 Tuas Basin Close (“15 TBC”) as he had previously worked on the Fortune II there. He was informed that the Fortune II was berthed next door at 9/11 TBC. The claimant then left 15 TBC through the main gate and re-entered through a second gate. A fence separated the two locations and the claimant proceeded to the shoreline before walking across to 9/11 TBC through an open space between the end of the fence and the shoreline. This took him into the area where the mooring operation was being conducted. As he walked towards the Namthong 27, he was struck and injured by the mooring rope which had snapped loose.

7 The claimant sued HAL and Lal under occupier's liability and all three defendants under the tort of negligence. At trial, Woo Bih Li J found that HAL and Lal were occupiers and that the claimant was a trespasser. The judge then went on to consider whether the special rules on occupier's liability should continue to have a separate existence from the general law of negligence and concluded that the former should be subsumed under the latter, despite existing authority from the Court of Appeal that the law on occupier's liability was distinct from negligence.12

8 Nevertheless, Woo J held that the status of the entrant as a trespasser was relevant to whether a duty should be found. Referring to a leading textbook on torts,13 it was held that an occupier should not be found to owe a duty to an adult trespasser who knowingly and without any reasonable excuse trespassed on the defendant's premises. The claimant was found to be such a trespasser. Woo J then went on to find that even if a duty had been found, it would not have been breached as HAL and Lal had taken reasonable care to exclude unauthorised entry onto the premises. With respect to Asian Lift, the judge found that the captain had acted negligently, but held that Asian Lift, although not an occupier, should not be in a different position vis-à-vis the occupier in terms of the existence of a duty.14

III. Decision of the Court of Appeal

9 The Court of Appeal unanimously dismissed the appeal against HAL and Lal but allowed the appeal against Asian Lift, holding that there was a duty of care, which had been breached. The court also agreed with the trial judge that the claimant had been contributorily negligent, reducing the defendant's share of responsibility from 65% to 50%. Although all three judges were in agreement on the essentials, there were differences of opinion on the details, resulting in three separate judgments being delivered. The leading judgment was by V K Rajah JA, who characteristically undertook a detailed historical and contextual analysis of the subject matter before holding that the complicated and archaic English common law rules of occupier's liability should no longer be applied in Singapore; to borrow his words, it was time to cut both the Gordian knot of occupier's liability and the apron strings of English common law.

A. Occupier's liability and the Gordian knot

10 Occupier's liability rules were concerned in the main with determining the liability of occupiers of premises to entrants for negligently caused harm.15 These rules were developed in the 19th century, well before the modern law of negligence, although it is worth noting that the important 1883 decision of Heaven v Pender,16 in which Lord Esher articulated the genesis of the neighbour principle, involved occupier's liability. Nevertheless, the occupier's liability regime continued on its own distinct path as a discrete subset of negligence; the fact that it warranted special treatment was not disputed in the early years: even Lord Atkin, who was at the same time advocating the neighbour principle, agreed that occupier's liability was unique.17

11 The rationale for occupier's liability was that the occupier was the person in control of the premises and therefore in a position to prevent harm to the entrant,18 who typically would not be in a position

to detect and prevent the danger until it was too late. In modern parlance, the entrant would be considered vulnerable and reliant on the occupier who had control and could be treated as having assumed responsibility for the entrant's safety. However, there were two unique characteristics of occupier's liability that initially resisted application of a general duty of care.

12 First, liability was typically founded on some danger that was part of the static condition of the premises, that is, it was not the action of the occupier, but the state of the premises that caused the harm. This meant that liability was based on omission, which typically did not ground liability in negligence. Indeed, it may be argued that this is what distinguishes occupier's liability from ordinary negligence...

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