Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Tay Yong Kwang JA,Steven Chong JA
• Judgment Date: 27 November 2017
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 156 of 2016
• Date: 27 November 2017

Grace Electrical Engineering Pte Ltd

and

Te Deum Engineering Pte Ltd

[2017] SGCA 65

Sundaresh Menon CJ, Tay Yong Kwang JA and Steven Chong JA

Civil Appeal No 156 of 2016

Court of Appeal

Civil Procedure — Appeals — Leave — Appellant raised new points contrary to pleaded case — Whether leave should be granted to raise new points — Order 57 r 9A(4)(b) Rules of Court (Cap 322, R 5, 2014 Rev Ed)

Tort — Breach of statutory duty — Duties imposed by statute — Unauthorised conversion of factory into accommodation area — Whether applicant's breaches of statue relevant to application of res ipsa loquitur — Whether applicant's breaches of statue increased risk of fire — Sections 24(1) and 30(1) Fire Safety Act (Cap 109A, 2000 Rev Ed)

Tort — Negligence — Res ipsa loquitur — Expert reports identified possible electrical causes of fire — Appellant had valid electrical licence — Whether there was sufficient evidence to show that appellant exercised reasonable care so as to displace application of res ipsa loquitur

Tort — Negligence — Res ipsa loquitur — Expert reports identified possible electrical causes of fire — Appellant renounced findings of expert reports at trial below — Whether possibility of other causes precluded or displaced application of res ipsa loquitur

Tort — Negligence — Res ipsa loquitur — Fire started at rear of appellant's premises — Unauthorised conversion of factory into accommodation area by appellant — Electrical appliances and wirings present because of unauthorised conversion — Appellant's workers cooked in premises — Whether res ipsa loquitur was applicable

Held, dismissing the appeal:

(1) Leave was granted to the appellant to raise the new points. There was, strictly speaking, no legal impediment for the appellant to raise these points on appeal even if it did not plead any of the competing causes of the fire. First, the new arguments did not require any amendments to the pleadings. Second, there was no question of adducing fresh evidence because the appellant was relying on the expert reports already before the court to make good the new arguments. The fact that the appellant had renounced the expert reports in the court below did not alter whatever probative value these reports might otherwise have had on the issue of the appellant's alleged negligence: at [36] to [38].

(2) Whether a party should be granted leave to introduce on appeal new points not taken in the court below, particularly points that represented a substantial departure from the position taken below by that party, would be the subject of careful consideration in each case, having due regard to factors including (a) the nature of the parties' arguments below; (b) whether the court had considered and provided any findings and reasoning in relation to the new point; (c) whether further submissions, evidence, or findings would have been necessitated had the new points been raised below; and (d) any prejudice that might result to the counterparty in the appeal if leave were to be granted: at [38].

(3) The three requirements for the application of res ipsa loquitur were first, that the defendant had to have been in control of the situation or thing which resulted in the accident; second, that the accident would not have happened, in the ordinary course of things, if proper care had been taken; and third, that the cause of the accident must be unknown: at [39].

(4) Because fires could occur without negligence on anybody's part, the court had to examine the circumstances under which the fire started in order to determine whether res ipsa loquitur was applicable: at [41].

(5) Courts had generally declined to apply res ipsa loquitur in situations where there was simply no evidence of any act or omission (including any breach of statutory duty) by the defendant that could have caused the fire. In addressing the second requirement of res ipsa loquitur, the court must necessarily examine whether there was any act or omission on the part of the defendant that could have caused the fire. Absent that, the rule simply did not apply: at [47].

(6) Where the defendant had committed a negligent act or omission, the court was more likely to apply the rule where such negligent act or omission had created or increased the risk of the occurrence of fire: at [50].

(7) The appellant's breaches and its subsequent convictions under the FSA were particularly relevant to the court's assessment of whether the second requirement of res ipsa loquitur was satisfied. The convictions presented the clearest objective evidence that the appellant had, by its conduct, increased the risk of fire on its premises: at [52].

(8) It was significant that the location where the fire started was in the backyard of the appellant's premises which included the unauthorised accommodation area. The use of the premises for accommodation resulted in the presence of numerous electrical appliances and electrical wirings. The workers would not have been present at, much less cooking on, the appellant's premises at the material time but for the appellant's contraventions of the FSA. All these brought the appellant's breaches of the FSA as a cause of the fire into the realm of probabilities. The appellant's breaches of the FSA formed the backdrop to the finding that it had more likely than not breached its duty of care to the respondent because the breaches undeniably increased the risk of fire occurring on the appellant's premises: at [53] and [59].

(9) The mere presence of some evidence indicating other possible causes of the fire was insufficient to preclude the application of res ipsa loquitur: at [61].

(10) Other possible competing causes of fire fell into two categories. The first concerned non-negligent causes and the second, neutral causes. Once a prima facie inference of negligence arose, it was insufficient for the defendant, in its attempt to rebut the inference, to merely show that the accident was due to a neutral event. The defendant had to go on to show either that (a) this competing event did not connote negligence on its part; or (b) it had exercised all reasonable care in relation to that event. The defendant had to establish a cause which was more probably due to non-negligence: at [62], [66] and [67].

(11) Because the appellant expressly denied that an electrical fault caused the fire at the trial below, it was unable to identify a cause of the fire which was consistent with reasonable care or which did not connote negligence on its part. It had effectively forfeited the opportunity to establish through cross-examination of the experts that the electrical cause was more probably a non-negligent cause. The expert reports were also incapable of showing that the electrical faults were, more probably than not, non-negligent events: at [69] and [70].

(12) There was insufficient evidence to show that the appellant had exercised all reasonable care in relation to its electrical appliances and wirings. Although the appellant had a valid electrical installation licence, no evidence was led at the trial as to what checks were carried out for the purposes of the license or how regularly this took place. It was also unclear precisely which electrical appliance or wirings caused the fire, and whether those appliances and/or wirings had been checked by the electrical worker: at [71].

(13) On the facts, second requirement of res ipsa loquitur, ie, that the fire was in the ordinary course of things more likely than not to have been caused by the appellant's negligence, was satisfied: at [72].

(14) The third requirement of res ipsa loquitur was also satisfied. While the reports generally suggested that some electrical appliance might be the cause of the fire, they did not provide sufficient evidence for the court to conclude, on the balance of probabilities, what exactly caused the fire. Because the appellant renounced the expert reports below, the possible causes of the fire identified by these reports were not seriously tested through cross-examination. The conclusions the reports arrived at were, at their highest, mere possibilities: at [82] and [83].

Case(s) referred to

Animal Concerns Research & Education Society v Tan Boon Kwee [2011] 2 SLR 146 (folld)

Barkway v South Wales Transport Co [1949] 1 KB 54; [1948] 2 All ER 460 (folld)

Blue and White Barra Pty Ltd v Solley [2001] SASC 194 (folld)

BNJ v SMRT Trains Ltd [2014] 2 SLR 7 (folld)

Colvilles Ltd v Devine [1969] 1 WLR 475 (folld)

Feoso (Singapore) Pte Ltd v Faith Maritime Co Ltd [2003] 3 SLR(R) 556; [2003] 3 SLR 556 (folld)

Flannigan v British Dyewood Co Ltd 1970 SLT 285 (folld)

Jurong Primewide Pte Ltd v Moh Seng Cranes Pte Ltd [2014] 2 SLR 360 (folld)

Lloyde v West Midlands Gas Board [1971] 1 WLR 749 (folld)

North Staffordshire Railway Co v Edge [1920] AC 254 (folld)

Paquette v Labelle (1981) 33 OR (2d) 425 (folld)

Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594 (distd)

Scott v The London and St Katherine Docks Co (1865) 3 H & C 596 (folld)

Shimizu Corp v Lim Tiang Chuan [1993] 2 SLR(R) 45; [1993] 3 SLR 77 (folld)

Sisters of Charity of the Immaculate Conception v Robert J Fudge Ltd [1988] NBJ No 322 (folld)

Sochacki v Sas [1947] 1 All ER 344 (folld)

Teng Ah Kow v Ho Sek Chiu [1993] 3 SLR(R) 43; [1993] 3 SLR 769 (folld)

Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd [2006] 3 SLR(R) 116; [2006] 3 SLR 116 (folld)

Virco Metal Industries Pte Ltd v Carltech Trading and Industries Pte Ltd [1999] 2 SLR(R) 503; [2000] 2 SLR 201 (refd)

Wayfoong Credit Ltd v Tsui Siu Man [1984] HKCA 205 (folld)

Wilsher v Essex Area Health Authority [1987] QB 730 (folld)

Woods v Duncan [1946] AC 401 (folld)

Facts

On 6 September 2012, just after 2.00am, a fire broke out on the appellant's premises at 141 Kallang Way and spread to the respondent's premises, an adjoining property at 143 Kallang Way, causing considerable damage to both properties. The two premises were adjacent to each other and...