Epolar System Enterprise Pte Ltd and Others v Lee Hock Chuan and Others

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 16 September 2002
• Neutral Citation: [2002] SGHC 214
• Docket Number: Suit No 127 of 2002
• Date: 16 September 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Gn Chiang Soon and Sivakolunthu (Gn & Co)
• Citation: [2002] SGHC 214
• Defendant Counsel: Cheong Yuen Hee and Cheong Aik Chye (instructed counsel) with Govinda Gopalan (Lim & Gopalan)
• Court: High Court (Singapore)
• Subject Matter: Private nuisance,Whether necessary for owner to prove possession or right of immediate possession,Proof of evidence,Findings of fact,Whether duty of care includes acts of omission,Whether interest as occupier sufficient,Nuisance,Jurisdiction,Distinction between damage and damages,Whether to allow application,Duty of owner to third party to make periodic checks on electrical system in premises,Whether findings of fact from another trial can serve as evidence of primary facts in separate and independent trial,Negligence,Submission of no case to answer at close of plaintiffs' case,Election not to call evidence on defendants' behalf,Duty of care,Whether interest as owner sufficient where owner not in occupation of land,Tort,Whether necessary for owner to prove damage to reversionary interest,Civil Procedure,Evidence,Whether such duty exists in law,Need to prove type and nature of damage in claims involving nuisance and negligence,Defendants' applying for leave to make submission without being put to election,Plaintiffs' failing to plead damage,Plaintiffs not specifying nature and type of damage,Need to prove interest in land

Judgment Cur Adv Vult

GROUNDS OF DECISION

1. This is a sequel to Suit No. 1777 of 1999, a case concerning a fire that occurred on 20 February 1999 at Senang Crescent. In the trial of Suit No. 1777 of 1999 the owners and occupiers of No. 23 Senang Crescent sued the owners of the next door premises, No. 25 (the first defendants), the tenants who occupied the top floor of No. 25 (the second defendants), and the sub-tenants of the second defendants who occupied the lower floor of No. 25 (the third defendants). The causes of action in that suit were based on negligence as well as under the rule in Rylands v Fletcher. The claim against the first and second defendants were dismissed at the close of the plaintiffs’ case. It was found that no liability attached to the owners and tenants in law on the case pleaded. The claim against the third defendants (who elected to call evidence) was allowed. The plaintiffs there appealed against the dismissal of their claim against the first and second defendants. The third defendants appealed against the finding of liability against them. Both appeals were subsequently dismissed by the Court of Appeal.

2. In the present action, the first, second, and third plaintiffs alleged that they were the occupiers of No. 21, 35 and 37 Senang Crescent respectively at the material time, namely 20 February 1999. These were the premises behind No. 23 and No. 25. The fourth, fifth and sixth plaintiffs alleged that they were the owners of No. 21, 35 and 37 of Senang Crescent respectively. The defendants in this action were the owners of No. 25 (the first defendants in the previous suit). Their tenants, and more importantly, the sub-tenants who were found liable in Suit No. 1777 of 1999 were not joined as parties in the present Suit. Mr. Gn, counsel for the present plaintiffs (and who also represented the plaintiffs in Suit No. 1777 of 1999) informed the court that the sub-tenants are not being sued because they have no means of making payment should they be found liable. Mr. Gn also stated that the present claim was brought by way of subrogation by the insurance company of the plaintiffs. The causes of action in the present action are based on the rule in Rylands v Fletcher, negligence and nuisance. At the outset, counsel withdrew the claim based on the rule in Rylands v Fletcher. For completeness, it should be noted that in the previous action in Suit No. 1777 of 1999 the plaintiffs there did not sue in nuisance.

3. In view of the connection with the facts in Suit No. 1777 of 1999, counsel were asked if they could agree facts and evidence to expedite the trial. However, counsel after conferring with each other, were only able to agree that there was a fire at No. 23 and No. 25 Senang Crescent on 20 February 1999 and that the fire started at the front yard of No. 25.

4. Mr. Gn advanced the present case on the basis of only one point. He submitted that the three fuse wires found in the fuse holder in No. 25 Senang Crescent after the fire, had been tampered with as early as 1978, but certainly before the tenants (in Suit No. 1777 of 1999) began their tenancy. His entire case was constructed on the following premises. First, the fire was caused by the escape of electricity "through the electrical fuses and found its way into the front yard of No. 25." Secondly, the fuses were tampered or up-rated. Thirdly, the defendants failed to inspect the fuse holder, or maintain proper fuses in the holder before handing the premises over to their tenants (in the case presently pleaded, the tenants referred to were the second defendants in Suit No. 1777 of 1999). The statement of claim elaborated on a number of other particulars of negligence but they fall essentially within the three broad categories that I have just set out. I shall have to revert to the plaintiffs' pleadings shortly.

5. Significantly, none of the plaintiffs gave evidence at all. The only witnesses called on their behalf were a couple of clerks to produce certified true copies of certificates of titles in respect of 21, 35 and 37 Senang Crescent, as well as a couple of loss adjusters testifying that they spoke to some of the plaintiffs who claim to be owners or occupiers of the said premises. One of them, Mr. Yeo Peck Hong admitted that he had no personal knowledge but had formed his opinion on the basis that he had seen invoices and insurance policies from the plaintiffs. The plaintiffs' evidence was mainly from Prof. Jimmy Chen and Mr. Tan Jin Thong, the two experts who gave expert evidence in the trial of Suit No. 1777 of 1999, as well as Mr. Yee Kum Choon who gave evidence in that same suit as a witness of fact, but returning in this trial to give expert evidence on the size of wires. I overruled Mr. Cheong's objection to Mr. Yee being called as such, and I am mindful of the peculiar nature of such evidence, and whether there is such a person who can be called a "wire expert". Consequently, I am of the view that the evidence will be permitted, but whether it amounts to anything is a matter for submission. Another expert, Dr. Jonathan Lloyd was called to give evidence as to the cause of the condition of the three strands of wires found in the fuse holder in 25 Senang Crescent. He was of the view that the brittleness of the wires was due to heat created by an electrical current (as opposed to direct external heat). The plaintiffs' evidence was that the measurement of the diameter of the wires was 0.71mm (and not, counsel conceded, 0.75mm as Mr. Yee Kum Choon testified in the previous trial). Also relying, in part, on the evidence of Mr. Ng Kong, a director of the Energy Market Authority, that after 1 September 1978 the old Imperial gauge wires were officially to be replaced by new metric gauge (0.75mm) wires, Mr. Gn then put the plaintiffs' case on the basis that the wires must have been changed before 1 September 1978. He next relied on the obviously hearsay evidence of Mr. Lu Hui Huang, who had occupied the upper floor of 25 Senang Crescent sometime from November 1987 to May 1994 when he moved next door to 23 Senang Crescent. He said that he noticed that the lower floor was ‘unoccupied by tenants’ for a couple of weeks in July 1988...