Management Corporation Strata Title Plan No 3322 v Mer Vue Developments Pte Ltd and Others

• Jurisdiction: Singapore
• Judgment Date: 16 March 2016
• Date: 16 March 2016
• Docket Number: Suit No 563 of 2011
• Court: High Court (Singapore)

Management Corporation Strata Title Plan No 3322

and

Mer Vue Developments Pte Ltd and others

[2016] SGHC 38

Chan Seng Onn J

Suit No 563 of 2011

High Court

Building and Construction Law — Architects, engineers and surveyors — Delegation of duties — Action in tort against architect for negligent design and supervision — Whether delegation to specialist subcontractors by architect as construction professional reasonable

Building and Construction Law — Architects, engineers and surveyors — Statutory obligations — Management corporation seeking to defeat defence of “independent contractor” by statutory non-delegable duties owed by main contractorand architect — Whether main contractors and architects had statutory non- delegable duties — Sections 9 and 11 Building Control Act (Cap 29, 1999 Rev Ed)

Building and Construction Law — Construction torts — Negligence — Action in tort against developer, main contractor, architect and mechanical engineer for defects in common property of condominium — Whether defence of “independent contractor” available to and made out by developer, main contractor and architect

Building and Construction Law — Construction torts — Subcontractor — Action in tort against main contractor for negligent construction of condominium — Whether nominated and domestic subcontractors were “independent contractors” of main contractor

Land — Strata titles — Developer — Action in tort against developer for defects in common property of condominium — Whether developer could rely on defence of “independent contractor” — Applicable principles and “exceptions” of non-delegable duties

Land — Strata titles — Subsidiary proprietors — Management corporation suing on behalf of subsidiary proprietors with limited claim in contract — Whether there were policy considerations to disentitle main contractor and architect from relying on defence of “independent contractor”

Tort — Breach of statutory duty — Management corporation alleging developer breached statutory duty to maintain common property of condominium — Whether alleged breach conferring private right of action against developer — Sections 16, 17 and 21 Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed)

Tort — Vicarious liability — Independent contractors — Developer, main contractor and architect relying on defence of “independent contractor” against action in tort by management corporation — Whether defendants employed “independent

contractors” — Whether defendants took proper care in selection and appointment of

“independent contractors” — Applicable principles

The plaintiff was the management corporation (“MCST”) of “The Seaview Condominium” (“the Development”), which was developed by the first defendant, Mer Vue Developments Pte Ltd (“Mer Vue”). The second defendant, Tiong Aik Construction Pte Ltd (“Tiong Aik”), was the main contractor of the Development; the third defendant, RSP Architect Planners & Engineers (Pte) Ltd (“RSP”), was the architect; and the fourth defendant, Squire Mech Private Ltd (“Squire Mech”), was the mechanical and electrical engineer for the Development. The action against the defendants was based in tort, and additionally against Mer Vue, the MCST alleged breach of the sale and purchase agreements with subsidiary proprietors who were original purchasers and also breach of the statutory duty to maintain common property of developments under the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”).

The defendants, with the exception of Squire Mech, pleaded the independent contractor defence as a complete defence to the MCST’s claim in tort against them. In response, the plaintiff relied on the Building Control Act (Cap 29, 1999 Rev Ed) (“BCA”) to argue that Tiong Aik and RSP owed the MCST non- delegable statutory duties as an exception to the independent contractor defence. To save time and costs for the main trial, the first tranche of trial was setdown to hear preliminary issues regarding the independent contractor defence and the availability of a private right of action under the BMSMA (the “BOSD issue”) against Mer Vue.

Three specific areas of alleged defects were also raised by the defendants in this tranche in relation to their independent contractor defence: incomplete and/or inconsistent fibre optic cabling for some apartment units in the Development (“Fibre Optic Cable Issue”); alleged bad odourin certain apartment units in areas such as the kitchens and bathrooms due to a design flaw in the kitchen waste discharge pipe system (“Foul Smell Issue”); and the complaint about the choice of trees and plants around the pool that led to small leaves falling into the pool, and consequently difficulties in maintenance (“Poolside Landscaping Issue”).

Held, allowing the independent contractor defence and denying the availability of a private right of action for breach of statutory duty:

(1) The general principle was that an employer was not vicariously liable for the negligence of an independent contractor, his workmen or agents in the execution of his contract. The extent of the control exercised by the employer over the servant (“the Control Test”) was not necessarily the sole determining factor; the overarching and fundamental test in the inquiry was whether the contractor was performing services as a person of business on his own account (“the Independent Business Test”): at [10] to [14].

(2) Even if it was established that an independent contractor had been appointed, the employer still had the duty to exercise proper care in appointing an independent contractor: at [15].

(3) Non-delegable duties were not true exceptions to the general rule of independent contractors, as they were premised on a primary and personal non- delegable duty owed by the employer to the claimant. Non-delegable duties were exceptional, and its categories should not be readily or easily expanded. A new category of non-delegable duties for construction professionals at common law premised on a risk–based justification was not necessary, as these were already statutorily provided for. It would be a more nuanced approach to consider the reasonableness of delegation in each factual matrix instead: at [16], [26] and [57].

(4) The extent of non-delegable duties of RSP and Tiong Aik under the BCA was limited to their responsibility to ensure building safety and construction in accordance with relevant approved plans and regulatory requirements. Thus, therewould be no implications on the independent contractor defence as pleaded by RSP and Tiong Aik against the plaintiff’s claims in tort if no allegations of a lack of compliance with regulatory requirements were proven in relation to the defects claimed: at [40] to [47].

(5) It was important to distinguish between the independent contractor inquiry and the pro hac vice inquiry. The former determined whether a party (“A”) was an independent contractor or an employee/servant of another (“B”) to conclude whether to impose vicarious liability on A for B’s tortious acts. The latter was a separate but possibly concurrent inquiry as to whether negligent employees of B could be considered pro hac vice employees of A, for the purposes of determining, between A or B, whom to impose vicarious liability for B’s employees’ tortious acts. The Control Test in the latter inquiry was more specific than that in the former inquiry as the latter examined the transference of employment in particular situations: at [28] to [30].

(6) The question on whether main contractors and architects should not be entitled to rely on the independent contractor defence based on policy reasons would be best left to Legislature to determine: at [37] to [39].

(7) In examining whether a construction professional had reasonably delegated its duties, it would be useful as a starting point to first examine the construction professional’s contract, and thereafter consider all other relevant facts and circumstances. RSP had not unreasonably delegated any of its professional design duties: express approval was granted by Mer Vue contractually; RSP’s subcontractors specialised in areas RSP might not have expertise in; and the track records of RSP’s subcontractors were satisfactory: at [53] to [56].

(8) The background and context had to be kept in mind in the independent contractor inquiry: the complexities of modern buildings required specialists of different disciplines interacting and communicating with one another. Extensivediscussions and coordination of work among parties was to be expected, and the Control Test might also pose certain problems for main contractors, who could

be expected to exercise a high degree of supervisory control on site: at [32] to [36].

(9) The Control Test focused on the right to control how the work was done, ie, the manner in which the work was to be actually executed by the contractor: at [63].

(10) Under both the Control and Independent Business Test, RSP and Tiong Aik were independent contractors of Mer Vue. An owner developer was entitled to tell its architect and contractor what to do in terms of setting the brief and making certain aesthetic decisions, etc. Making such decisions, giving suggestions, communicating directly with subcontractors, and having staff with overlapping expertise did not establish the requisite control over the manner of execution of RSP’s and Tiong Aik’s responsibilities: at [63] to [79].

(11) Similarly, Tiong Aik’s nine nominated subcontractors and 12 domestic subcontractors were independent contractors of Tiong Aik. Tiong Aik did not control the manner they carried out their work; the nature of work subcontracted out to them was largely specialist and dependent on the contractor’s proprietary system. Supervisory control by main contractors on–site to coordinate among subcontractors did not establish the necessary control under the Control Test. These subcontractors were also body corporates in already established...