Li Zhongyuan and Another v Novena Hall Pte Ltd trading as Novena Hall International Students' Hostel

• Jurisdiction: Singapore
• Judge: Laura Lau Chin Yui
• Judgment Date: 20 April 2009
• Neutral Citation: [2009] SGDC 133
• Court: District Court (Singapore)
• Published date: 28 April 2009
• Citation: [2009] SGDC 133
• Plaintiff Counsel: David Liew Tuck Yin (DSH Law Corporation)
• Defendant Counsel: Foo Yuk Lin (Foo Kwok & Lai Partnership)
• Year: 2009

17 April 2009 Judgment reserved.

District Judge Laura Lau Chin Yui:

1. The Plaintiffs, both Chinese nationals, are husband and wife. On 15 August 2005, the Plaintiffs’ only son, Li Xiaomeng (“Xiaomeng”) then 16 years old, arrived in Singapore from Beijing, China, to commence a study programme with Hua Business School, in preparation for the GCE ‘O’ level examinations. While undergoing his studies in Singapore, Xiaomeng resided at Novena Hall International Students’ Hostel (“the hostel”), on the recommendation of China Star Corporation for International Economic & Technical Cooperation, the organisers of the study programme. The hostel which was situated at No. 78 Gilstead Road, Singapore, provided accommodation for foreign students in Singapore. The hostel fee was S$700 per month, as stated in an accommodation contract made with the Defendants on 22 August 2005. The Plaintiffs paid the sum of S$8,400 in advance for one year’s accommodation at the hostel.

2. On 17 November 2005 at about 11:30 pm., some 3 months after his arrival in Singapore, Xiaomeng fell to his death from an open window on the third level of the hostel. The coroner’s inquiry which followed returned a verdict of death by misadventure. The Plaintiffs then commenced this action against the Defendants for damages under the provisions of the Civil Law Act (Cap. 43). Their cause of action was premised on the alleged negligence of the Defendants as occupiers of the hostel premises.

3. Following a 3.5-day trial and having taken time to consider the evidence and written submissions of counsel, I apportioned the Defendants’ liability for Xiaomeng’s death at 50% and made the following award of damages:

Bereavement	$10,000
Funeral expenses	$10,000
Cost of Plaintiffs’ travel to Singapore to attend; coroner’s inquiry	$ 3,000
Loss of dependency
(1) for 1st Plaintiff	$36,000
(2) for 2nd Plaintiff	$66,000

The total damages assessed amounted to $125,000 of which I ordered the Defendants to pay the Plaintiffs 50% i.e. the sum of $62,500. In addition, I granted the Plaintiffs interest at 5.33% per annum from the date of writ to judgment on the sum of $11,500, comprising 50% of the damages assessed for bereavement, funeral expenses and cost of the Plaintiffs’ travel to Singapore for the coroner’s inquiry. The Defendants were also ordered to pay the Plaintiffs the costs of the action to be taxed, if not agreed.

4. The Plaintiffs have appealed against my decision and I now give my grounds.

The Plaintiffs’ pleaded case

5. On 17 November 2005, at or about 10:30 pm., Xiaomeng, together with Wang Bin Yi, another student residing at the hostel, were playing their guitars in room 03-10 within the hostel premises. Xiaomeng went onto one of the beds which had been placed against a window in the room and while imitating a rock guitarist on the bed, Xiaomeng unseen by anyone, fell through the open window to his death. The window from which Xiaomeng fell was at all material times, opened and covered by window blinds.

6. The Plaintiffs contended that the Defendants, as occupiers having the management and control of the hostel premises, had caused or contributed to the fatal accident by their negligence. It was alleged that the Defendants had failed to inspect the students’ rooms regularly to ensure that the windows were closed and locked at all times; on the contrary, the Defendants had allowed the window in room 03-10 to be opened or to remain opened constituting a danger which the Defendants were or should have been aware of. Installation of window grilles in room 03-10 would have prevented Xiaomeng’s fall and the failure to provide protective railings or barriers, the Plaintiffs contended, was a breach of “Regulations 79 and 80 of the Building Control Regulations 1 (S148/1989) read together with Regulation 51 of the Building Control Regulations 2003 (S666/2003) and read together with Section 22D(3) of the Building Control Amendment Act 2007 (N0. 47/2007). Further, the Defendants had allowed the bed in room 03-10 to be placed or remain placed against the wall below the window and they had failed to adequately supervise or warn the student residents of the danger of placing the beds in this manner or of opening the windows or leaving them open in room 03-10. Generally, the Defendants had failed to ensure that the hostel was safe and had exposed Xiaomeng to a danger or a foreseeable risk of injury.

7. The Plaintiffs’ action was brought under section 20 of the Civil Law Act (Cap.43) for the benefit of the 1^st Plaintiff as the father and the 2^nd Plaintiff as the mother. The Plaintiffs pleaded that Xiaomeng, as their only child, would have become the family’s sole source of financial support upon completing his education and commencing employment. His commencing salary was likely to be in the region of $2,000 per month would have increased over the years. The Plaintiffs had thus lost their means of support and had suffered loss and damage. Special damages were also claimed for funeral expenses and cost of the coroner’s inquiry in the sums of $10,000 and $3,000 respectively.

The Defendants’ pleaded case

8. The Defendants admitted that Xiaomeng was a student residing at the hostel for which the Defendants had received in advance the sum of $8,400 for a year’s tenancy. While the Defendants admitted that they were the occupiers having control and management of the hostel premises, they averred that they were not at all material times, the occupiers of room 03-10. This was because the room was rented out to “student tenants” who invited Xiaomeng to the room on the day of the fatal accident.

9. As to the fall from the window, the Defendants admitted only that Xiaomeng was in room 03-10 with Wang Bin Yi when he fell out of a partially open window which had the blinds over the opening. The Defendants denied that their servants or agents had caused or contributed to Xiaomeng’s fall by their negligence. They contended instead that the fatal accident was caused or contributed to either by Xiaomeng’s own negligence or by the act(s) of one of the occupying tenants whose act(s) were not within the control of the Defendants at all material times, in particular at the time of the accident and/or on the day of the accident. In this connection, the Defendants had prohibited the opening of windows at all times and in fact, the windows were provided with locks with keys kept by the Defendants. The hostel management had repaired the lock on the extreme left sliding window in room 03-10 on 10 November 2005 after it was found tampered with on 8 November 2005. They had then administered a verbal warning to the occupiers of the room not to repeat the same vandalism. The Defendants had further warned the occupiers of room 03-10 not to re-arrange the beds. They averred that the manager of the hostel on conducting a check of room 03-10 on the morning of 17 November 2005, had found the beds arranged in the order as prescribed by the Defendants’ requirements. Yet, soon after the accident, the manager on inspecting room 03-10, found that 2 beds had been re-arranged without their permission such that one bed was pulled adjacent to the panel of windows. One of the panels of sliding windows in the room, namely the last panel to the extreme left as one faces the windows, was found to be open at the time of the accident, due to the act of one or more persons present in the room on the day of the accident. The window lock had been tampered with on the day of the accident or sometime beforehand. The Defendants contended that the re-arrangement of the beds and the opening of the window were acts which the hostel management could not reasonably be expected to prevent.

10. As to how Xiaomeng had caused or contributed to his fall, the Defendants alleged that despite their prohibition, Xiaomeng and the occupiers of room 03-10 had a history of smoking in the room and the window was open to allow smoke to escape. Xiaomeng was in room 03-10 for a long time and knew or ought to have known on the day of the accident that a window panel was partially ajar. The Defendants had no duty to install window grilles in room 03-10 and Xiaomeng knew or ought to have known of the absence of window grilles. He knew or should have known that jumping about on the bed next to an open window and/or throwing his weight backwards against the windows with blinds drawn, without ascertaining whether the window was open or not, was a dangerous act. Xiaomeng toppled out of the window opening due to a lack of care for his own safety when the window opening was normally not sufficiently big for a person of his build to fall out of.

11. On the alleged breach of the Building Control Regulations, the Defendants averred that the Regulations were not applicable to tenants having occupation of the premises at the time of the accident who were not the builder, developer or owner of the building. Moreover, the height of the finished floor level to the top of the sill of the openable window was more than 900 mm. Even if the Regulations were not complied with, the mere fact of non-compliance did not in law or in fact cause Xiaomeng’s fall.

12. The Defendants further put the Plaintiffs to strict proof of their alleged loss and damage.

The Plaintiffs’ witnesses

13. In support of their case, the Plaintiffs procured affidavits of evidence-in-chief (“AEICs”) from 4 Chinese national students who had resided at the hostel and the mother of another student. Of these 5 deponents, only one namely Qian ShiLei, availed himself for cross-examination at the trial. The other 4 deponents, according to the Plaintiffs’ counsel, Mr Liew, had returned to China and the Plaintiffs could not procure their attendance at the trial. Order 38 rule 2(1) of the Rules of Court provides that the AEICs of these witnesses shall not be received in evidence except with the leave of the court or by agreement of the parties and I had...