District Judge Koh Juay Kherng:
TABLE OF WITNESSES
Plaintiffs’ witnesses:
PW1 - Mr Seah Peng Siang, Assistant Manager of the Plaintiffs;
PW2 - Mr Othman bin Zolkurnain, Maintenance Technician of Ngee Ann City Property Management Pte Ltd;
PW3 - Mr Chong Yong Chuen James, General Manager of the Plaintiffs; and
PW4 - Mr Chiang Jun Jie, Clarence, loss adjuster (formerly with McLarens Singapore Pte Ltd.
Defendants’ witnesses:
DW1 - Mr Wong Liang Chik, Managing Director of the Defendants;
DW2 - Mr To Hui Hong, Manager of the Defendants; and
DW3 - Mr Muhammad Firdaus, a Senior Technician of the Defendants.
I delivered my Judgment on 7th September 2017 in favour of the Plaintiffs. The Defendants agreed to pay the Plaintiffs costs of $25,000.00 which is inclusive of all disbursements and GST. However, the Defendants subsequently filed an appeal against the whole of my decision. I now set out the grounds for my decision.
BACKGROUND FACTS
The Plaintiffs are in the food and beverage industry and were tenants of the premises at 391 Orchard Road, #04-23 Ngee Ann City, Singapore 238872 (“premises”) at the material time.
The Defendants were the contractors engaged by Ngee Ann City Property Management Pte Ltd (“Ngee Ann Property”) to carry out, inter alia, “clearing of chokes” of pipes in the units located in Ngee Ann City.
The Plaintiffs sued the Defendants for damages claiming that they had caused waste water to enter and damage their premises whilst clearing a choked S-pipe in Ngee Ann City. They claimed that the Defendants had breached their duty of care in that they carried out their work negligently. The said S-pipe was located a floor above the Plaintiffs’ premises and was occupied, at the material time, by a restaurant called SERENITY (“Serenity”). Further and in the alternative, the Plaintiffs relied on the doctrine of res ipsa loquitur in support of their claim.
On 17th October 2013, at about 9.30 a.m., DW2 received a call from PW2 of Ngee Ann Property to attend to a choked S-pipe at Serenity. According to the Defendants, all incoming calls from their customers are recorded in a book called the “choke book”. The said call was recorded as: “urgent, chokage, leaks”.
In response to the call from Ngee Ann Property, the Defendants’ DW2 sent DW3 and one Azman bin Abdul (“Azman”) to attend to the case. Azman was not called as a witness for the trial. DW3’s evidence was that they arrived at Ngee Ann City at about 10 a.m. and were directed to Serenity’s kitchen to clear the choked pipe. They did not conduct any checks for signs of leaks in the Plaintiffs’ premises although it was recorded as part of the problem in the Defendants’ “choke book”. DW3 commenced work to clear the choke by using an Electro-Mechanical (“EM”) machine and a high pressure water jet. According to DW1, the Managing Director of the Defendants, he described the EM machine as follows:-
[it] “Consist[s] of a semi-rigid cable powered by a one speed slow motor to move the cable forward and backward. The cable will follow the profile of the pipe. At the end of the cable is connected a C-blade. The C-blade will turn as the cable moves forward and will pick up cloths or if there is a hard object. It will move to loosen it, so that it can be flushed out later with water.”
The C-blade is made of metal.
According to the Plaintiffs, a large gush of waste water, entered their premises after 10.00am, “between 10 and 11am” that day.
The Defendants denied liability. According to DW3, whilst clearing the S-pipe using the EM machine and a high pressure water jet, he was told to stop work by PW2 because of leakage of waste water into the Plaintiffs’ premises. PW2 and DW3 then went down to the Plaintiffs’ premises. When they arrived, the Plaintiffs’ premises was dark due to a trip in the power supply. DW3 said that he entered the Plaintiffs’ premises and used a ladder to reach up to the ceiling board. He claimed that when he opened two panels of the ceiling board, he saw a badly corroded S-pipe with small holes on it. All this while, PW2 was present and was using a torchlight to shine up the ceiling. DW3 claimed that he applied putty on the S-pipe to stop the leak temporarily. The Defendants claimed that the S-pipe was already leaking before they commenced work with the EM machine and that they did not cause the waste water to enter the Plaintiffs’ premises. No photographs were taken of the alleged corroded S-pipe. DW3 claimed that he told PW2 to replace the leaking S-pipe before going for lunch. When DW3 returned from his lunch at about 2 pm, he continued clearing the choke with the EM machine until “2100 hrs” on the same day.
Issues
The issues at the trial were: Whether the waste water from the S-pipe entered the Plaintiffs’ premises as a result of the Defendants’ negligence when clearing the choke? Whether the Plaintiffs may rely on the doctrine of res ipsa loquitur? and What damages can the Plaintiffs recover from the Defendants?
The issues and the respective parties’ arguments were dealt with as follows:
Whether the waste water from the S-pipe entered the Plaintiffs’ premises as a result of the Defendants’ negligence when clearing the choke?
The Defendants argued that based on PW2’s evidence, the S-pipe did not “burst”, as alleged, having testified that “It was still joint”. They further argued the S-pipe was already “badly corroded” & “rust[ed]” and “there were small holes” on it and was already leaking. Hence, they contended that the Plaintiffs’ claim in negligence was not proven. From the oral testimonies of the witnesses at trial, it was unclear whether the waste water entered the Plaintiffs’ premises as a result of a leaking or a burst pipe. However, it was undisputed that the waste water found its way into the Plaintiffs’ premises and caused damage to the Plaintiffs shortly after DW3’s use of the EM machine with a C-blade made of metal and a “high pressure water jet to flush the pipe”. No photographs were taken of the S-pipe in question, before or after the incident. Were the Defendants negligent and in breach of their duty of care?
To answer the question, I relied on the combined evidence of three key witnesses, namely, PW1 (Seah Peng Siang), PW2 (Osman bin Zolkurnain) and that of DW3 (Firdaus).
PW1 testified that as per his usual routine, he had arrived at the premises at about 9.00a.m. and had been working on his roster after he inspected the premises. He claimed that during his inspection he did not notice any leaks. He finished completing his roster at about 10.30a.m. The Plaintiffs’ other staff were in the midst of preparing for the soft launch of the Plaintiffs’ restaurant at the premises. The premises had just undergone renovations for the launch and operation of business.
DW3 and Azman had arrived at Ngee Ann City at about 10.00a.m. and attended to the choke at Serenity’s kitchen. DW3 testified that he worked on clearing the choke in the S-pipe, using the EM Machine at Serenity “just a bit after 10[a.m.]”.
At about 10.30a.m. or thereabout, the PW1 saw water leaking from the ceiling just outside his office. He went out of his office and he heard a loud “boom” followed by “1 big burst” of water gushing from the ceiling of the Plaintiffs’ premises. Shortly thereafter, there was an electrical trip as water had seeped into the DB Box and the premises became dark. At about the same time, DW3 was told by PW2 to stop work as he was alerted to the situation. Both men then went to the Plaintiffs’ premises. PW2 gave evidence that he “could see a lot of water was continuously raining down from the ceiling…..Water was gushing out from the bottom of a black pipe”. Although DW3 applied some putty “and used tape to tape around the putty”, on the S-pipe, it was futile and the waste water continued to escape from the S-pipe. From the evidence of both PW2 and DW3, it was clear that by the time DW3 asked for the S-pipe to be replaced before he went for lunch, the waste water had already entered the premises and caused damage to the Plaintiffs’ premises.
DW 3’s evidence that they had used the EM Machine to clear the choke for about 30 minutes (having started at “abit after 10.00[am]”) also fits in well with PW1’s evidence that the waste water entered the Plaintiffs’ premises after 10.00am, between “between 10 and 11am”.
Taking the combined evidence of the timings given by these three key witnesses, I found that, on a balance, the entry of the waste water into the Plaintiffs’ premises coincided with the timing of DW3’s use of the EM machine and the high pressure water jet on the choked S-pipe. Furthermore, the Defendants, having recorded “leaks” as one of the complaints in their “choke book”, failed to check the condition of the pipes before commencing use of the EM machine to clear the choke. This failure to do so was clearly negligent conduct on their part. If they had taken the trouble to check the condition of the pipes that they were going to work on, preventive measures could have been taken either by Ngee Ann Property, the Plaintiffs and/or the MCST, if reported to them. This failure to check the pipes was a breach of their duty of care in the circumstances. Even if I were to accept the Defendants’ contention that the S-pipe was already badly corroded before they commenced their work with the EM machine, on balance, more likely than not, it was their combined use of the EM machine with the metal C-blade and the high pressure water jet that caused the waste water to escape from the S-pipe and into the Plaintiffs’ premises. The Defendants had argued that the Plaintiffs should have sued the MSCT or Ngee Ann Property for failing to maintain the pipes. The Plaintiffs rebutted, and I accepted the said rebuttal, that it was for the Defendants to bring Third Party proceedings against whichever party they claimed should...
