Management Corp Strata Title No 1298 v Keller Piano Co (Pte) Ltd

• Jurisdiction: Singapore
• Judge: Lim Teong Qwee JC
• Judgment Date: 04 March 1994
• Neutral Citation: [1994] SGHC 57
• Citation: [1994] SGHC 57
• Defendant Counsel: Cheah Kok Lim and Cheong Chuh Feng (Low Yeap & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: Benedict Chan (Goh Poh & Pnrs)
• Date: 04 March 1994
• Docket Number: District Court Appeal No 35 of
• Court: High Court (Singapore)
• Subject Matter: Causation,Negligence,Whether management corporation negligent,Res ipsa loquitur,Duty to ensure water pipes in the building do not leak water into subsidiary proprietor's premises,Effect on burden of proof,Tort,Management corporation's duty of care

This is an appeal by the defendant against that part of the decision of district judge Ang Sin Teck giving judgment to the plaintiff in the sum of $15,580 with interest and costs. The plaintiff gave a respondent`s notice to contend that the decision should be affirmed on other grounds. The defendant also gave notice of appeal against the dismissal of its application for leave to amend its defence but this was abandoned at the hearing of this appeal. I allowed the appeal and dismissed the plaintiff`s claim.

On or about 2 October 1987, there was a leakage of water from the chilled water pipe of an airconditioning system and the plaintiff`s premises at 176 Orchard Road #04-01, Cold Storage Centrepoint were damaged. Cold Storage Centrepoint is a subdivided building to which the Land Titles (Strata) Act (Cap 158, 1988 Ed) applies. The plaintiff was then a subsidiary proprietor of a leasehold interest in respect of the premises which it occupied for the purpose of its business. The defendant is the management corporation for the building constituted by the plaintiff and other subsidiary proprietors under s 33 of the Act. The plaintiff claimed damages for negligence and further or alternatively for breach of duty under the Act. The claim for breach of statutory duty was dismissed. On the claim for negligence the learned district judge said he found the plaintiff had not proved its case but held that res ipsa loquitur applied and gave judgment for the plaintiff.

Negligence

The plaintiff alleges that the leakage and the resulting damage were caused by the negligence of the defendant or its servants or agents. The particulars of negligence are:

(a) Failing to take all reasonable and effective measures whether by inspection, examination or otherwise, to ensure that there was or would be no risk of water ingress to the plaintiff`s premises through the burst water pipe or otherwise.

(b) Failing reasonably to have foreseen the danger and risk from the water pipe bursting and that extensive damage could or likely to result therefrom (sic).

(c) Failing to take reasonable and proper precautions to prevent the water pipe from bursting and thereby preventing the water ingress in the plaintiff`s premises.

(d) The plaintiff would also rely on the `doctrine of res ipsa loquitur`.

Surprisingly there was little evidence of the chilled water pipe or of the airconditioning system of which the chilled water pipe was part. According to Chuah Lam Siang, the chilled water pipe is a metallic cylindrical pipe covered with insulation material carrying chilled water from the sixth level of the building to the fan coil units installed at the fourth level where the plaintiff`s premises are. Chuah is a civil engineer employed by the defendant`s managing agent as centre manager. The airconditioning system was maintained by the third party (which is not concerned with this appeal). The service and maintenance agreement with the third party is at TPB-7 and the `system` subject to the agreement is described in the list at TPB-10 which does not expressly include any chilled water pipe. Chuah said his employer was `Centrepoint Properties Ltd` but he was clearly mistaken as in the agreement and the correspondence the managing agent was `CS Properties Pte Ltd` and there was no mention of `Centrepoint Properties Ltd` in any document. (There was some confusion also over the identity of certain parties and their roles in the occurrence and the surrounding circumstances. The plaintiff acquired the premises from the transferror Cold Storage Enterprises Pte Ltd which is not the defendant or its managing agent although the surveyors appointed by the plaintiff`s insurers served it with notice of a claim; and the defendant at the commencement of the trial applied for leave to amend its defence on the wrong assumption that the transferror was the defendant; and the learned district judge refused leave also on the basis of the wrong assumption.) Teng Eng Teck, the service manager and a director of the third party, said that the insulation consists of approximately two inches of rock wool and finished with double sided aluminium foil. There were two fan coil units in the void between the false ceiling and the structural ceiling over the plaintiff`s premises. The section of the chilled water pipe which had a pin hole from which water leaked causing the damage complained of was in this void and it was changed soon after the occurrence of the incident and the system was repaired. The faulty section was taken away and was not available at the hearing. Teng attended to the repair. According to Chiu Lu Pao, a director of the plaintiff, it was the airconditioning maintenance people who took the pipe away.

The learned district judge found that the plaintiff had not proved its case on negligence. I have read his grounds of decision and the notes of the oral evidence and the documents admitted and I agree. As to para (a) of the particulars of negligence I am not sure what measures could be taken to eliminate the risk of `water ingress to the plaintiff`s premises through the burst water pipe` short of either sealing the plaintiff`s premises altogether or encasing the water pipe in an equally strong and durable sleeve or pipe, neither of which measures would be practical or reasonable. There was no evidence of any reasonable measures that could be taken. Paragraph (b) has to be considered with para (c). Even if it was the risk of the chilled water pipe bursting that was foreseeable, there was no evidence of failure to take any reasonable or proper precautions to prevent that happening. Teng, who had 20 years` experience at the time he gave evidence, said that it was not possible to detect the pin hole because of the insulation. To inspect the pipe, it would be necessary to remove all the insulation and drain off the water. This would involve shutting down the airconditioning system for the length of time needed to do all that and to re-do the insulation. There is also this evidence of Teng under cross-examination:

Q: Could there be any telltale signs before a leakage happens?

A: No.

Q: Let us say hole is very small, could water leak out to insulation and wet insulation?

A: Yes.

Q: And obvious to naked eye?

A: Yes.

Q: Could not be possible that this hole through time becomes bigger and until a certain time the whole pipe break off to cause a gush of water?

A: The pipe is under pressure, and if there is a small pinhole, the leak would be quite substantial.

Chuah gave this evidence:

Q: Could it be possible that there could be minor leaks, and give way?

A: Not possible. System is under pressure, the leakage must be very sudden.

The gush of water would be as sudden as the onset of a pin hole and it would be quite unreasonable to remove the insulation for regular inspection even if the pin hole could be detected before the `quite substantial` escape of water. The defendant employed the third party to maintain the airconditioning system and Nalco South East Asia Pte Ltd to test the water in the chilled water pipe of the system at least once a month. This is Chuah`s evidence under cross-examination:

Q: The water treatment that was done to chilled water system was done by Nalco. Was it carried out before October 1987?

A: If this is essential maintenance, since day one, we have engaged this kind of term contractor to carry out checks.

Q: So it was?

A: Yes.

Q: Nalco was engaged by Centrepoint Property and not third party, ACBS?

A: No.

Q: Engaged by Centrepoint?

A: Yes.

Q: As an additional precaution you said you have in-house maintenance team to check on pH level which Nalco got to do. Who are these in-house maintenance people?

A: They are my supervisor and technicians.

Q: They are not the third party, the ACBS?

A: Yes.

Q: Would you agree with me that the third party need not do anything to the chilled waterpipe during that period of contract, 1 January 1987 to end May 1988?

A: Yes, just checking on the water system. The main purpose to detect whether there is any corrosion.

Q: Where?

A: In the system, the chilled water system.

Q: So, how are they supposed to detect corrosion in the chilled water system?

A: By checking the nitrite level.

Q: What else?

A: Of course, conduct pH test.

Q: But then why should you engage Nalco to maintain the chilled water system, and nitrite and get your own men to check the nitrite if the third party were supposed to do that?

A: Because the equipment that we have are less sophisticated. We have the equipment to check pH, a very basic test, whereas Nalco have more equipment to check on chemical proportion of the chilled water.

He was not cross-examined as to results of any test for the condition of the water conducted at any relevant time and there was no evidence of the results of any such test.

The learned district judge referred to the defendant`s engagement of Nalco to check the water and the evidence of Teng as to the probable causes of the pin hole in the chilled water pipe. He then said he found that the plaintiff had not proven, on balance of probabilities, the case on negligence. He would have found that para (c) of the particulars of negligence in the statement of claim had not been proved. On the evidence he was clearly justified in coming to that conclusion.

Before returning to the particulars of negligence, it is convenient that I now consider the alternative claim in breach of statutory duty. Paragraphs 5 and 6 of the statement of claim say:

(5) Further and or in the alternative, the defendants were at all material times charged with the duty under s 48 of the Land Titles Strata Act (Cap 158, 1988 Ed) to properly maintain and keep in a state of good service and repair the common property and any property vested in the defendants. The plaintiffs will refer to the Act for its full terms and effect at trial.

(6) In...