Loh Siew Keng v Seng Huat Construction Pte Ltd

• Jurisdiction: Singapore
• Judge: Chan Seng Onn JC
• Judgment Date: 05 June 1998
• Neutral Citation: [1998] SGHC 197
• Court: High Court (Singapore)
• Published date: 25 February 2013
• Year: 1998
• Plaintiff Counsel: Ronald Choo (Allen & Gledhill)
• Defendant Counsel: Ang Kim Leong (Ang & Associates)
• Citation: [1998] SGHC 197

Judgment :

GROUNDS OF DECISION

1. The plaintiff is the registered proprietor of the house known as 72 Siang Kuang Avenue Singapore 347983 (‘premises’ or alternatively ‘No 72’). The defendants were the contractors engaged by the Ministry of Environment (‘MOE’) to carry out certain sewerage works along Siang Kuang Avenue. Those works included the replacement of an underground sewer line adjacent to the premises. The plaintiff brought a claim against the defendants for negligence and nuisance arising from the defendants’ excavation of the trench next to the premises. I allowed the plaintiff’s claim and granted interlocutory judgment with damages to be assessed. Dissatisfied with my decision, the defendants have appealed. I now give my reasons.

Background

2. The plaintiff and some of her family members have been staying in the premises for the last 30 years. Apart from some minor cracks, there were no serious cracks in the premises.

3. On 5 January 1996, the defendants commenced excavation of a 2.7 metre deep trench along the pathway between the premises and a neighbouring house No 70 Siang Kuang Avenue (‘No 70’). Nine days later on 14 January 1996, serious cracks suddenly appeared in the walls and floors of the premises. No other construction or excavation activity, apart from the defendants’, was carried out in the vicinity of the premises at that time.

4. Cracks penetrated the walls on the first and second floors of the premises. The external floor of the premises had a long continuous crack line. Separation gaps between the walls and floors could be seen at certain parts of the premises. There were also cracks in the floor tiles of the interior of the premises.

Particulars in the re-amended statement of claim

5. The plaintiff alleged that the defendants failed to exercise reasonable care in carrying out the sewerage works by --

(a) causing or permitting the foundations of the premises to be disturbed through movement and vibration during the excavation;

(b) causing or permitting the ground adjacent to the premises to settle through the draw down of the water table during excavation;

(c) failing to employ available methods for laying the sewer lines which would minimise the soil disturbance and pumping of the water;

(d) failing to take adequate precautions to prevent the ground adjacent to the premises from being disturbed and from settling;

(e) failing to carry out adequate shoring work immediately after the excavation to prevent ground movement and settlement.

6. The damage to the premises was alleged to be caused by the defendants’ negligent breach of their duty to take reasonable care and the plaintiff had suffered considerable distress, trouble, inconvenience and expense.

7. In the further and better particulars, the plaintiff stated that the locations of subsidence within the premises were located at areas where the cracks had occurred but their precise locations could not be identified. For the particulars under (c), the plaintiff stated that the available methods for pipe laying that would minimise the soil disturbance and pumping of the water were: soil treatment by jet grouting, steel sheet piling and pipe jacking. Under (d), the plaintiff said that the misalignment of the shoring of the excavation works allowed soil to escape through the gaps between the shoring, thereby causing the adjacent ground supporting the premises to subside.

Defence

8. The defence was that due diligence had been exercised and the method of trench construction was in accordance with that of a reasonable contractor.

9. The defendants alleged in their amended defence that the defects, if any, were wholly caused or contributed by the extensive renovations and additions made to the premises by the plaintiff. More particularly, a cantilevered balcony constructed on the second floor was not supported by any beam or column. That caused additional stress to the structure of the premises. As the ceramic tiles at the car porch were not laid on adequate foundation, cracks also resulted.

10. To substantiate their defence, they relied on the fact that no cracks surfaced at house No 70 where extensive renovations had not been done.

11. However, the defendants admitted pumping out water from the excavated trench.

Cause of action in negligence

12. To succeed in an action for negligence, the plaintiff has to establish that (1)

the defendants owed her a duty of care; (2) the duty of care was breached; and (3) the breach has caused the plaintiff damage.

13. The Plaintiff’s case was simply that the defendants had by their excavation caused the cracks. These cracks resulted from: (1) the disturbance of foundation of the premises by the movement and vibration during the excavation; (2) the settlement of ground due to the draw down of water; and (3) the loss of soil into the trench because of the poor shoring construction.

14. The defendants owed a duty of care to the plaintiff as it was reasonably foreseeable that their failure to take reasonable care in the excavation could cause the ground adjacent and subjacent to the plaintiff’s property to subside and the house to be damaged as a result of the subsidence. The physical proximity of the defendants’ excavation to the plaintiff’s land was so close that there was a foreseeable risk of harm arising from ground subsidence, when loss of soil into the trench occurred and large quantities of water were pumped out of the trench. However it was extensively argued as to whether the plaintiff could even maintain an action against the defendants if the land had subsided as a result of the abstraction of water from the trench.

15. In this case, it is more convenient to address the issue of causation and the effects of ground subsidence, before determining whether the defendants owed a duty of care to a neighbour to avoid causing subsidence when percolating water was abstracted.

16. The issues for determination are as follows:

(1) whether the defendants caused the cracks that appeared in the plaintiff’s house;

(2) if the land had subsided as the result of the abstraction by the defendants of the water percolating under that land, whether the plaintiff could maintain an action for consequential damage either in negligence (or in nuisance); and

(3) whether the defendants were negligent.

First Issue: whether the defendants caused the cracks

Evidence of Plaintiff’s witnesses

17. PW1, Mr James Chua Hai Joo, testified that he stayed in the premises with his 84 year old mother, the plaintiff, since 1967. Between 1967 and 1980, major renovations were done.

18. Sometime in early January 1996, the defendants began digging a deep trench about 6 feet away from the perimeter wall of the premises. When PW1 returned home from work on 15 January 1996, he saw that serious cracks had appeared at several places.

19. He noticed that planks for shoring the trench were not supported by any transverse beams. It rained heavily one evening. Black soil flowed out continuously from the gaps between the planks as the shoring was not well done. The defendants kept digging out the soil and transported it away by trucks. After the rain stopped, they pumped out the water and soil from the trench for a few hours.

20. PW2, the plaintiff, testified that serious cracks suddenly appeared in the walls and floors of the premises, both inside and outside of the house after the defendants started excavation. During the 29 years prior to the defendants’ excavation, she had not seen such serious and extensive cracks before.

21. No horizontal struttings were put up while the digging was going on and soil fell into the trench from the sides. The soil dug out was black in colour. Once, during a heavy downpour, the walls of the trench collapsed completely and the trench was filled with mud. The defendants simply removed the mud and continued with their excavation. The struttings and other supports were put up only after the excavation had been completed.

22. According to PW2, the cracks appeared before the trench collapsed. When asked how extensive the collapse was, she said a few planks collapsed. When the contractors pulled them out, earth fell into the trench.

23. In PW2’s affidavit, she stated that she first discovered the cracks when she returned from work on or about 14 January 1996. She could not open the gate as it was misaligned. One side of the gate was lower than the other and the bolt was jammed. She was very surprised as the gate could be opened in the morning when she left for work. That night and the next morning, cracks began to form all over the interior of the premises. Several of the room doors could not be closed as the door frames were misaligned. As the cracks were very serious, she was afraid for her safety.

24. Another son of the plaintiff, Mr Chua Kiang Joo (PW3), stated in his affidavit that an excavator was used to dig a trench deeper than the height of an average man. No horizontal struttings were in place when the excavation was carried out. A lot of wet black soil fell into the trench from the sides as the defendants were digging. A few days later, the walls of the trench completely collapsed. The defendants then quickly put up the boards and horizontal struttings at the trench. They even brought in soil to fill up the gaps at the sides of the trench to make them look straight and hide the fact that the trench had collapsed. The cracks in the premises began to appear a few days after the collapse.

25. In his cross-examination, PW3 stated that no horizontal struts and walers were in place to support the vertical timber boards when the excavator was digging the trench. When PW3 first saw the trench, it had been dug from the front to the back of the house. The deeper parts of the trench had vertical planks at both sides but not the shallower parts. Black water seeped through the gaps as the planks were not aligned properly.

26. PW3 was referred to photograph 3 in exhibit D12. He said that the vertical...