Loh Ngai Seng v The Management Corporation Strata Title Plan No. 0581 (Pandan Valley Condominium) and another suit

• Court: Magistrates' Court (Singapore)
• Judge: Lee Li Choon
• Judgment Date: 11 July 2019
• Neutral Citation: [2019] SGMC 34
• Citation: [2019] SGMC 34
• Docket Number: Suit No 14390 of 2017 and Suit No 2967 of 2017
• Hearing Date: 11 July 2019
• Plaintiff Counsel: Fernandez Christopher (M/s Tan Kok Quan Partnership),Faizal Mohamed Ashraf / Edwina Fan (M/s United Legal Alliance LLC)
• Defendant Counsel: Hong Heng Leong (M/s Just Law LLC)
• Subject Matter: Negligence,Fallen Tree,Liability of MCST,Exemption clause in car park label, carpark notice
• Published date: 30 July 2019

District Judge Lee Li Choon: Background

The Plaintiffs in both suits are residents at the Pandan Valley Condominium (‘condominium”). The Defendants are the Management Corporation of the condominium responsible for the maintenance and upkeep of the common property of the condominium.

The Plaintiffs had parked their cars at the open carpark situated in front of Block 4 of the condominium on 28 December 2015. It rained during the night of 28 December 2015. The following morning, the Plaintiffs discovered that an Angsana Tree had fallen onto and damaged their cars.

The Plaintiffs’ Case

The Plaintiffs’ suit against the Defendants relies on this premise - that the damage to the Plaintiffs’ cars was caused by the negligence of the Defendants and/or their employees, and/or workers, and/or servants and/or agents in their failure to, inter alia, provide proper assessment, planning, planting, monitoring, maintenance, inspection and upkeep of the tree that fell, thereby causing and/or permitting the tree to be diseased and/or in a state of decay which in turn caused the tree to fall and damage the Plaintiffs’ cars.

In summary, the particulars of negligence that were pleaded are as follows: Failing to maintain or properly maintain the tree Failing to ensure or failing to take any or any sufficient measures to ensure that the tree does not pose any danger that could be reasonably foreseeable or that the tree does not fall and cause damage to any property; Failing to adequately monitor, maintain and/or manage the tree or to properly assess tree risk, and failing to implement appropriate mitigating measures to prevent the said tree from falling Failing to carry out any or any proper or timely maintenance of the tree; Limiting the lateral growth of the tree thereby causing lack of support or instability of the said tree on the ground; Planting the tree and/or allowing the tree to remain in a location which constrained the space for the lateral spreading of the roots; Failing to engage competent and qualified arborists or risks assessors to evaluate the risks posed by the tree prior to it falling onto the vehicles; Failing to ensure adequate growing space for the said tree, thereby causing the tree to fall; Failing to exercise due safety and care in the course of handling, maintaining and/or management of the tree Failing to satisfy and/or perform the duties as a Management Corporation under section 29 of the Building Maintenance and Strata Management Act

The Plaintiffs also pleaded their reliance on res ipsa loquitur.

The Defendants’ Defence

In their Defence, the Defendants deny liability and say that prior to its falling, the tree was observed to be healthy, in particular, the tree “did not show any signs of decay or root rot and there was no water logging observed in the vicinity of the tree”. The Defendants also averred that at all material times prior to the fall of the tree, the Defendants had in place a Landscape Maintenance Agreement with a landscaping contractor which covered the pruning of trees.

The Defendants also say that they are exempted from liability as the Plaintiffs were or ought to be aware that all vehicles parked in the carpark of the condominium were parked at the owner’s own risk and the Defendants would not be responsible for damage to the vehicles. The Defendants also rely on a notice they have placed at the entrance of the carpark as well as the terms and conditions set out in the parking label issued to the Plaintiffs by the Defendants in support of their position that they are exempted from liability.

Accepted Facts

All parties in the two suits opted for a documents-only trial. Their counsel also represented to the court that this was a case that was appropriate for a documents-only trial.

The case proceeded based on the following accepted facts: The Defendants did not engage an arborist to conduct regular inspection of the trees in the condominium. The Defendants had in place only a Landscape Maintenance Agreement (“landscaping agreement”) with a landscaping contractor. The scope of work covered in this landscaping agreement included “grass cutting”, “plant watering”, “weeding”, “fertilizing”, “spraying of insecticide/fungicide”, “pruning of trees”, “cutting of dry leaves and fallen leaves collection” and “forking of soil” but did not include inspection of trees or tree assessments¹. While the scope of work covered in the landscaping agreement included “pruning of trees” on a yearly basis, this only covered pruning of low trees that are below 3m that obstruct the view of pedestrians and motorists. For trees above 3m, the landscaping agreement provides that pruning is subject to a separate quote as and when required². The Defendants had depended on the ad-hoc gratuitous advice from this landscaping contractor, residents’ feedback and their own representatives’ assessment pursuant to their own checks to determine when the “taller” trees in the condominium may require pruning³. The Defendants say that on average, they would call in the pruning contractor about 1 to 2 times in a year to prune the taller trees⁴.

Findings of the Single Joint Expert

All parties rely on the evidence and the Tree Structural Failure Assessment Report (“the Report”) ⁵ of the single joint expert, Mr Thomas Richard Gordon, certified arborist and Director of AborCulture Pte Ltd for the causes of the falling of the tree. The findings of Mr Thomas Richard Gordon in the Report are stated as follows⁶:

“Probable causes of structural failure of the root plate (contributing factors):

Restricted growing space, limiting the lateral spread of structural roots between carpark surface and fence strip foundation (observed on site and in clear view prior to tree failure)

Decayed main root (observed on site yet most likely out of view prior to tree failure)

Wind force; reported in vicinity of No.4 Pandan Valley on 28 December 2016 by Meteorological Services Singapore as: Northerly to north-easterly 5-35km/h gusting to 55km/hr

Rain force and load; reported in vicinity of No. 4 Pandan Valley on 28 December 2016 by Meteorological Services Singapore as: Moderate to heavy showers 1700hr to 2310hr

Softening of soils from heavy rain; contributor to unsupportive ground in which the tree roots inhabit.

Tree lean, although not confirmed tree was leaning prior to failure; It is believed lean or an asymmetry of tree crown produced an amount of gravitational force on the tree fall side.”⁷

The above summary of the contributing factors can also be found in the conclusion of the Report which is stated as follows:

“It is highly probable that the cause of tree failure by uprooting was a combination of environmental forces (wind and rain), the force of gravity and; an inadequacy of lateral main root spread due to growing space constraint.

While the environmental forces are not able to be controlled easily and gravity is constant, the site condition elements associated with root system growing space constraint should have been sufficient to warrant further investigation from which, the implementation of appropriate mitigating measures may have prevented the tree failure incident occurring.”

Issues Before This Court

I will proceed to outline the issues for my determination.

It is not in issue that the Defendants, as an agency responsible for the maintenance of the condominium, owe a duty of care to the residents of the condominium including the Plaintiffs. In determining whether the Defendants are liable for negligence, the court will have to make a finding on whether the Defendants have breached this duty of care. To answer this question, it must first be determined what standard of care is to be imposed on the Defendants as a matter of law. Thereafter, the facts and circumstances of the case will have to be examined to make a determination as to whether the Defendants have breached this standard of care and whether the breaches by the Defendants caused the damage to the Plaintiffs and that therefore, the Defendants should thereby be liable for the property damage caused to the Plaintiffs.

As the Defendants have also pleaded that they are exempted from liability arising from the car park notice and the terms and conditions in the car park label, if the above question of whether the Defendants have breached the duty of care owed to the Plaintiffs is answered in the affirmative, the next issue I have to determine is whether the Defendants are nonetheless, exempted from liability by virtue of the car park notice and the terms and conditions in the car park label.

My Decision

As I have stated above, the existence of a duty of care owed by the Defendants to the Plaintiffs is not in dispute. The focus of the dispute between the parties is whether the Defendants had, in any respect, breached the standard of care expected of the Defendants as a management agency of the condominium and if those breaches of the standard of care expected of the Defendants brought about the Plaintiffs’ property damage. As the issues of breach of standard of care and that of causation are intertwined, I will give my analysis and my findings on these two issues as a whole.

Generally, the standard of care is the objective standard of a reasonable person using ordinary care and skill. It is trite law that “negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent or reasonable man would not do.”⁸

The standard of care may accommodate relevant circumstances in order to either modify the standard of care or render the standard more specific to the class of persons to which the Defendants belong⁹. In this connection, the objective test for the standard of care means that the Defendants are to be judged by the standard of a...