Lim Seng Chye v Pex International Pte Ltd and another

• Jurisdiction: Singapore
• Judge: Mavis Chionh Sze Chyi JC
• Judgment Date: 11 February 2019
• Neutral Citation: [2019] SGHC 28
• Court: High Court (Singapore)
• Docket Number: Suit No 392 of 2016
• Published date: 16 February 2019
• Year: 2019
• Hearing Date: 05 July 2018,06 July 2018,11 July 2018,03 July 2018,10 July 2018,03 September 2018,04 July 2018
• Plaintiff Counsel: Appoo Ramesh and Vinodhan Gunasekaran (Just Law LLC)
• Defendant Counsel: Chia Boon Teck and Ng Huan Yong (Chia Wong LLP),The second defendant absent and unrepresented.
• Subject Matter: Tort,Vicarious liability,Negligence,Breach of duty,Nuisance,Private nuisance,Neighbouring properties,Rule in Rylands v Fletcher,Building and Construction Law,Construction torts,Contractor
• Citation: [2019] SGHC 28

Mavis Chionh Sze Chyi JC:

This matter arises from a fire which occurred at an industrial property at No. 15 Link Road (“No. 15”) on 30 April 2013. The Plaintiff in this suit is the owner and occupier of No. 15. The issues in contention in the trial before me centred on whether the 1st Defendant – who owns the neighbouring property at No. 17 Link Road (“No. 17”) – bore any liability for the damage and loss resulting from the fire. It was the Plaintiff’s case that the 1st Defendant was liable in negligence¹ and/or alternatively nuisance², and/or alternatively, the rule in Rylands v Fletcher [1868] LR 3 HL 330 (“Rylands v Fletcher”)³. At the close of the trial (which was a trial on liability alone), I dismissed the Plaintiff’s claim in negligence but found the 1st Defendant liable to him in nuisance and the rule in Rylands v Fletcher. As both the Plaintiff and the 1st Defendant have appealed against my decision, I am setting out my reasons in these written grounds.

The parties

At the material time, the Plaintiff operated a sole proprietorship under the name “LTL Electrical Trading”, whose principal activities were described as “Repair of domestic electrical/electronic appliances except audio and video equipment (e.g. refrigerators, washing machines and room air-conditioners)”⁴. In addition to repairing domestic electrical appliances, the Plaintiff also did business in the export of second-hand electronic and other household items⁵. He acquired No. 15 Link Road in 2007 and had since used the property as an office and also a warehouse for the storage of such second-hand household items, which included polyurethane mattresses, sofa sets, tables, chairs, cupboards, television sets and loud speakers⁶.

The 1st Defendant is a company engaged in (inter alia) the manufacturing and supply of electrical appliances. It supplies these electrical appliances to mechanical and electrical sub-contractors. The 1st Defendant’s premises at No. 17 Link Road adjoin No. 15. The 1st Defendant moved into No. 17 in September 2010. At the material time, it was using the premises as a warehouse for the storage of metal conduits and metal fittings⁷.

In February 2013, the 1st Defendant had engaged the 2nd Defendant to carry out addition and alteration (“A&A”) works at the rear of No. 17 Link Road which included the construction of an extension to the rear. Prior to being engaged for these A&A works, the 2nd Defendant had been engaged by the 1st Defendant on two other occasions – in May 2012 and August 2012 – for two other jobs at No. 17 Link Road⁸. At the material time, the 2nd Defendant was a licensed builder in possession of the requisite Certificate of Licence from the Building and Construction Authority (“BCA”)⁹.

In the course of these proceedings, interlocutory judgment was entered by the Plaintiff against the 2nd Defendant on 3 May 2016.

The works at No. 17 Link Road

The scope of the A&A works in question is set out in the 2nd Defendant’s quotation dated 25 February 2013¹⁰. In all, the 1st Defendant contracted to pay the 2nd Defendant a total sum of $88,150.50 for works which included “Steel Structural Works”, “Metal Roofing” and a “Brickwall with plastering up to 2m high; from 2m onwards install one side trimdek & one side 1-hr fire-rated partition to 6m high”. The last item appears to refer to the construction of a brick wall to separate No. 17 Link Road from No. 15. Until then, the backyards and the perimeter of No. 17 and No. 15 had been separated only by chain link fences, over which the Plaintiff had placed corrugated metal sheets¹¹.

The 2nd Defendant’s quotation of $88,150.50 included an item for $16,000, which was described as “Preliminaries & Insurance, including hoarding & protection”. The “Terms and Conditions” set out at the bottom of the second page of this quotation stated that the 2nd Defendant was “Excluding Lightning Certificate, Licensed Plumber, PE Endorsement and other Gov’t submissions”. The 1st Defendant accepted the quotation and paid the 2nd Defendant a 30% down payment of $28,296.15 on 15 April 2013¹².

In addition to engaging the 2nd Defendant to carry out the A&A works, the 1st Defendant also engaged a firm named ETS Design & Associates (“ETS”) as the consultant for the said works. According to the 1st Defendant, it had engaged ETS at the behest of the 2nd Defendant, who had explained that it needed the help of a consultant to “make all the necessary submissions to the various authorities and to apply for all the necessary permits and approvals”¹³. ETS was “highly recommended” to the 1st Defendant by the 2nd Defendant.

ETS quoted the 1st Defendant a total fee of $16,000 on 25 September 2012 for its “professional services” which included making all the necessary submissions to the relevant government authorities in respect of the said works, applying for the permit to commence work, applying for the Temporary Occupation Permit and the Certificate of Statutory Completion, and issuing the Certificates of Supervision¹⁴. The quotation stated that ETS was to engage the services of “Qualified Person (QP), PE[ ](Civil) & Registered inspectors”. It excluded, inter alia, “Clerk-of-works supervision fees” and “Accredited Checker’s fee”. The total fee of $16,000 was to be paid in stages, with a 30% down payment upon confirmation of ETS’s appointment and then further sums contingent on the making of various submissions to the various government authorities.

The 1st Defendant accepted ETS’s quotation, and by 20 February 2013, had paid ETS a total of $12,000 comprising a down payment of $4,800 on 26 September 2012, a sum of $2,400 on 7 January 2013, and a sum of $4,800 on 20 February 2013¹⁵. The sum of $2,400 was invoiced by ETS on 4 December 2012 following the submission made to the Jurong Town Corporation (“JTC”)¹⁶. It is not disputed that JTC issued its letter of consent on 31 December 2012¹⁷. The second sum of $4,800 consisted of a sum of $2,400 invoiced by ETS on 2 January 2013 upon the submission of the JTC-endorsed plan to the Urban Redevelopment Authority (“URA”), and another sum of $2,400 invoiced by ETS on 6 February 2013 upon the submission of structural plans to the BCA¹⁸. It is not disputed that URA issued its grant of planning permission on 6 February 2013¹⁹.

It is not disputed that at the time of the fire on 30 April 2013, ETS had yet to submit the structural plans to the BCA for the latter’s approval, despite its invoice of 6 February 2013 having required payment from the 1st Defendant of $2,400 “[u]pon submission of Structural plan to BCA for Structural plan approval”²⁰. It is also not disputed that as at 30 April 2013, no fire safety plan had yet been submitted to the Singapore Civil Defence Force (“SCDF”) for approval, nor had any permit to commence work been applied for.

The SCDF investigation and the subsequent prosecution

The SCDF, which investigated the fire, concluded that it had been caused by sparks from hot works being carried out at the backyard of the neighbouring property at No. 17 Link Road²¹. These sparks formed the ignition source. The mattresses, bed frames, furniture and other items stored by the Plaintiff at the backyard of No. 15 provided the ignition fuel.

On 23 April 2014, the 1st Defendant pleaded guilty to an amended charge tendered by the SCDF under section 23(1) of the Fire Safety Act (Chapter 109A), of authorising the carrying out of fire safety works involving the erection of roof cover and wall partitions at the back of No. 17 Link Road without having obtained approval of plans for these fire safety works²². A fine of $5,000 was imposed²³.

The Plaintiff’s claim

At the time of the fire, the premises at No. 15 were insured pursuant to a Fire Policy issued by United Overseas Insurance Limited (“UOI”), while the Plaintiff’s goods were insured against accidental physical loss caused directly by fire or lightning, pursuant to a Fire-Commercial Policy issued by AXA Insurance Singapore Pte Ltd (“AXA”)²⁴. The Plaintiff brought the present suit pursuant to UOI’s and AXA’s rights of subrogation under the relevant clauses in the insurance policies, and also in respect of alleged uninsured losses²⁵. The latter concerned in particular a claim for damages in respect of personal injuries allegedly suffered by the Plaintiff in the form of post-traumatic stress disorder (“PTSD”) and panic disorder²⁶.

The Plaintiff’s present action against the 1st Defendant was said to be based in negligence²⁷, nuisance²⁸, and the rule in Rylands v Fletcher²⁹. Whilst the statement of claim also contained numerous references to the 1st Defendant’s alleged “breach of duty under section 14A” of the Workplace Safety and Health Act (Chapter 354A) (“WSHA”)³⁰, the pleadings taken as a whole as well as the approach taken by the Plaintiff’s counsel indicated that the Plaintiff was not invoking the separate tort of breach of statutory duty but rather, relying on the alleged breaches of the WSHA as one of his grounds for contending that the 1st Defendant was liable in negligence.

In his statement of claim, the Plaintiff also invoked the doctrine of res ipsa loquitur³¹.

The 1st Defendant’s defence

The 1st Defendant, in denying any liability to the Plaintiff, asserted that it had engaged ETS to make submissions to the relevant government authorities for the necessary approvals and clearance in respect of the A&A works, and that it had also engaged the 2nd Defendant as an independent contractor to carry out the said works in accordance with ETS’s submissions. It had exercised reasonable care in the selection of the 2nd Defendant as its independent contractor for the A&A works³². Having appointed ETS and the 2nd Defendant, the 1st Defendant had relied on their expertise and professionalism to ensure that the works were carried out lawfully and in accordance with a proper system of work that would not cause any nuisance or damage to neighbours including the...