Industrial Commercial Bank v Tan Swa Eng and others and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 26 May 1995
• Neutral Citation: [1995] SGCA 54
• Citation: [1995] SGCA 54
• Date: 26 May 1995
• Published date: 19 September 2003
• Plaintiff Counsel: P Selvadurai and Lok Vi Ming (Rodyk & Davidson)
• Docket Number: Civil Appeals Nos 95 and 96
• Defendant Counsel: Vijay Kumar (Vijay & Co),William Jansen (Jansen Menon & Pnrs),Rajaram Ramiah (Wee Ramayah & Pnrs),R Joethy (Choo & Joethy)
• Court: Court of Appeal (Singapore)
• Year: 1995

Parties

The two claims arose out of the Hotel New World collapse on 15 March 1986. The appellants were the tenants who occupied the ground floor of a building known as Lian Yak Building. Lian Yak Realty Co Pte Ltd were the owners of the building. Ng Khong Lim (Ng), deceased, was at all material times the managing director of Lian Yak Realty Co Pte Ltd.

The first and second respondents in CA 95/94 were the administratrix and co-administrator respectively of the estate of Song Teck Long (Song), deceased. Song was a partner of Song Brothers Trading and Chop Chee Kee who were customers of the appellants.

The first respondent in CA 96/94 was the administrator of the estate of Sit Ah Lak, deceased (Sit) and he was also the third respondent as the widower of Sit. The second respondent was the mother of Sit. Sit was a clerk employed by Chip Soon Aluminium Pte Ltd who were also customers of the appellants.

Brief facts

The construction of the building started in June 1969 and its certificate of fitness was obtained on 22 September 1972. As early as 1974, cracks started to appear in some sections of the building, but on Ng`s instructions these cracks were just patched over with cement. These cracks developed progressively until the building collapsed at 11.15am on 15 March 1986.

The material events which took place that morning, prior to the collapse of the building, were briefly as follows. At about 10am on 15 March 1986, Albert Sim and Cheong Cheng Guan, both bank officers of the appellants who were at the appellants` premises, heard a distant rumbling sound followed by a tremor. They also felt the building vibrate. They and the other staff of the appellants were shocked at first but as the disturbances lasted for only a few seconds, they continued with their work.

At 10.30am, Annie Quek @ Quek Ah Suan, a customer of the appellants, was on her way to the appellants` premises when she saw some cracks on a pillar in the ground floor car park of the building. The watchman of the building then told her to inform her employer who parked at the car park to remove his car from the car park. She further witnessed cement falling off the rear of the building and saw the cracks herself. Hence she proceeded to inform her managing director of the cracks.

Subsequently, she informed Albert Sim and Cheong Cheng Guan of the cracks on a pillar at the ground floor car park. On hearing that the pillar was cracked, Albert Sim was worried that his car might be hit by the cement that was falling off the pillar. He then left the appellants` premises, went to the rear of the building and shifted his car to the basement, thinking that the basement was a safer location.

Thereafter, Albert Sim told the appellants` branch manager, Albert Kan (a victim of the collapse), of the cracks and together they inspected the cracks on a pillar in the car park. After examining the cracks, Albert Kan felt that they posed no danger to his car.

In the meantime, the watchman and some other helpers, under the supervision of Ng, were seen by Albert Sim and Annie Quek putting up a wooden prop at the car park in an obvious attempt to remedy the cracks on the pillar.

At about 11.30am, the building collapsed. 33 persons died in this tragedy including the two deceased, Song and Sit who were at the appellants` premises when the building collapsed.

On 22 March 1986, a commission was issued by the President for an inquiry to be held to determine the cause of the collapse and to make recommendations for such appropriate measures that can be taken to prevent a similar occurrence. The Honourable LP Thean J (as he then was) was appointed the Chairman of the Commission of the Inquiry. The report was published in February 1987.

In 1989, the estates of the two deceased commenced actions for lost years, and their dependants for loss of dependency. Lian Yak Realty Co Pte Ltd and the estate of Ng admitted liability whereas the appellants disputed both liability and quantum. At the end of the two hearings, the learned judge found Lian Yak Realty Co Pte Ltd and the estate of Ng two thirds to blame and the appellants one third to blame. The estates of the two deceased and their dependants were also awarded costs of their actions: 40% was ordered to be borne by the appellants and 60% by Lian Yak Realty Co Pte Ltd and the estate of Ng. Against the learned judge`s decision on the apportionment of liability and the issue of costs, these two appeals have been brought.

At the end of hearing counsels` submissions, we allowed both appeals. We now give our reasons for so doing.

Issues on appeal

The main issue in this appeal was whether, on the facts and in the circumstances of this case the appellants were at all liable to their customers who were invitees. It was not disputed that the appellants had control of the premises and were occupiers of the ground floor premises at the building, and that the two deceased, customers of the appellants, were invitees of the appellants at the material time.

The law on occupier`s liability for `invitees`

The law on occupiers` liability in Singapore is derived from English common law. However, legislation in England has been passed which has made significant changes to the common law. In Singapore, there is no such parallel legislation, and the English statutes on occupiers` liability are not applicable.

At common law, a person is an invitee if he is on private or public premises for a business purpose of material benefit to the occupier. This is usually referred to as a `common interest` as the invitee himself more often than not also has an economic interest in being on the premises. Bank customers such as Song and Sit at the material time were undoubtedly invitees on the bank`s premises and would have been there with the bank`s consent.

The duty owed by an occupier to an invitee is stated by Willes J in in the following terms:

And with respect to such a visitor [invitee] at least, we consider it is settled law, that he, using reasonable care on his

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