Management Corporation Strata Title Plan No 2668 v Rott George Hugo

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 27 May 2013
• Neutral Citation: [2013] SGHC 114
• Court: High Court (Singapore)
• Docket Number: District Court Appeal No 23 of 2012/W
• Year: 2013
• Published date: 06 June 2013
• Hearing Date: 19 May 2013,10 May 2013
• Plaintiff Counsel: Ramasamy Chettiar and Sarjeet Singh (ACIES Law Corporation)
• Defendant Counsel: Boey Swee Siang (ATMD Bird & Bird LLP)
• Subject Matter: Tort,Negligence,Breach of Duty,Contributory Negligence
• Citation: [2013] SGHC 114

Lai Siu Chiu J: Introduction

This is an appeal against the decision of the learned District Judge David Lim (“the DJ”) in District Court Suit No 3597 of 2008/K (“the DC Suit”). It concerns a slip accident in which George Hugo Rott (“the Respondent”) was injured. The accident occurred in 2007 at the car park of a condominium managed by the Management Corporation Strata Title Plan No. 2668 (“the Appellant”). The DJ found that the Appellant had breached its duty of care towards the Respondent, and held the Appellant 35% liable. The Appellant has now appealed against his decision.

The factual issues are relatively straightforward and pertain simply to whether the Appellant had been negligent in failing to ensure that the car park was free of oil patches and water puddles. Because of a recent landmark decision by the Court of Appeal on occupier’s liability (see [20] below), an interesting point of law relating to the general tort of negligence vis-a-vis occupier’s liability has arisen and needs to be addressed in this appeal, as it was an issue raised in the Appellant’s submissions.

After considering the parties’ arguments and further arguments, I am dismissing the appeal. However, I am also increasing the Respondent’s share of contributory negligence from 65% to 75% and give my reasons below.

The Facts

The salient facts are not in dispute and are set out briefly below.

The Respondent was a subsidiary proprietor and resident of The Equatorial (“the Condominium”) located along Stevens Road.

CBM Pte Ltd (“the second defendant”) was a party to the DC Suit. It was the cleaning contractor engaged by the Appellant to carry out cleaning services within the Condominium’s premises.

On 19 June 2007, at about 7.15pm, the Respondent was walking in the basement car park of the Condominium when he slipped and fell after he stepped on what seemed like a normal puddle of water on the ground. The puddle was in fact some water thrown over a patch of oil (“the slippery patch”). It is not disputed that the Respondent saw the slippery patch and consciously stepped into it, as there were numerous other puddles around and he thought it would be inconvenient to avoid each and every puddle. The Respondent’s wife on the other hand circumvented the slippery patch by walking around it. As a result of the fall, the Respondent sustained injuries to his knee and right shoulder. He then commenced an action against the first and second defendants for damages.

The Trial Judge’s Decision

In the trial below, the Respondent’s case against the Appellant proceeded on two fronts, viz, an action under occupier’s liability and another under a general duty of care: under occupier’s liability – for failure to prevent damage or injury to the Respondent, as an invitee, from any unusual danger in the basement car park which the Appellant knew or ought to know of and which the Respondent did not know about; under a general duty of care – for failure to use all reasonable care to prevent harm to the Respondent as a user of the basement car park through its failure to ensure that the terms of the cleaning services agreement were adequate for keeping the basement car park free of oil patches and water puddles at all times; and/or put in place at the time of the accident an adequate inspection and cleaning system to ensure that the floor of the basement car park was regularly checked for and cleaned of oil patches and water puddles.

The Respondent’s case against the second defendant was one under a general duty of care. The DJ eventually found the second defendant not liable. Hence, it is not a party to this appeal. As against the Appellant, the Respondent’s action under occupier’s liability failed as the DJ found that the Respondent could not prove the second and third elements of the test because: the slippery patch was not unusual to him, having regard to the nature of the premises and his knowledge; and the slippery patch was not unknown to him, and its significance was appreciated by him.

However, even though the DJ found that the action based on occupier’s liability failed, he went on to find that the Appellant had breached its duty to the Respondent to use reasonable care to prevent harm to the latter when he was using the basement car park. The Respondent’s claim under a general duty of care therefore succeeded. The findings of the DJ under this issue form the crux of this appeal and merit elaboration.

In coming to his decision, the learned DJ relied on two main points.

First, he found that the cleaning services agreement and the security guard agreement which the Appellant used in engaging the cleaners and security guards respectively did not provide for any services to address the presence of oil patches and water puddles. The only related service provided for was for “Sweeping”, and this would not include the removal of oil patches. Since it was foreseeable that cars parked in the car park can and do sometimes leak oil and water on the floor, by not including a clear provision in the agreements, those agreements were thus inadequate to ensure the safety of users of the car park.

Second, following the first point, the DJ found that there was no system to address the presence of oil patches and water puddles in the car park. The only system in place in relation to the cleaning of the car park was two sessions of sweeping at 8.30am and 3pm by the cleaners, a visual inspection at 4.45pm, and ad hoc inspections by the security guards after the work shift of the cleaners had ended. However, this was inadequate because: after the cleaners’ work shift hours each day (5pm on normal days and 2pm on weekends and public holidays), there were no cleaners available to clean up any oil patches or water puddles; and the security guards were not told nor did they conduct regular inspections of the basement car park for oil patches and water puddles after the cleaners had left. Neither were there any precautionary measures to ensure that any oil patches or water puddles that they found did not pose a danger to users of the car park.

Following from the above two observations, the DJ found that the Appellant had failed to engage proper services and to establish a reasonable system for the basement car park to be inspected and cleaned at regular intervals. This could result in oil patches or water puddles which would be a danger to users. Therefore, he found that the Appellant had failed to use reasonable care to prevent harm to the Respondent as a user of the car park.

The DJ went on to find that causation was established (which will be elaborated on below). In summary, he found that if a proper system was established, there was a “slightly better than 50% chance of the slippery patch” being discovered and thus properly dealt with, preventing the slip accident from occurring. Therefore, the breach of duty of reasonable care in failing to establish a proper system “caused” the Respondent to suffer damage. However, because the Respondent had consciously stepped into the slippery patch, he apportioned 65% liability to the Respondent.

The issues in this appeal

When the appeal first came before this court, the Appellant’s appeal pertained solely to the DJ’s findings under a general duty of care. Under the general duty of care, the Appellant argued that: the DJ had erred in law by holding that the service agreements and the “system” in place was inadequate (“the maintenance system”), thus finding that the Appellant had not taken reasonable care to prevent harm to the Respondent; and the DJ had erred in law by finding that the inadequate maintenance system had caused the injury to the Respondent.

Both parties initially did not raise any issues with regard to the DJ’s findings on occupier’s liability, and understandably so, since the Appellant was not liable under occupier’s liability, and the Respondent was successful in his action under a general duty of care. The parties proceeded on the assumption that an action under occupier’s liability and one under a general duty of care were distinct and separate actions. However, in the midst of the appeal, the issue of whether there could be concurrent liabilities under both occupier’s liability and a general duty of care was raised, and parties were invited to submit further arguments to address the court on this issue.

After considering the issue, the Appellant included a further argument in its appeal, taking the position that it was not possible to have concurrent liabilities, and since the action under occupier’s liability had failed, the Respondent should not have been allowed to take a second bite at the cherry through an action under a general duty of care. Not surprisingly, the Respondent argued that it was possible to have concurrent liabilities, and even if that was not possible, the cases establishing that there should not be concurrent liabilities were distinguishable from the facts in the present case.

There are therefore three broad issues before this court: how should the DJ’s findings be viewed in the light of recent developments in the law regarding concurrent liabilities under occupier’s liability and a general duty of care? did the Appellant fail to take reasonable care in preventing harm to the Respondent by failing to establish an adequate system to address oil patches and water puddles, thereby causing him to sustain the injuries? did the Respondent’s actions affect the apportionment, if any, of liability on the part of the Appellant?

How does See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2013] SGCA 29 (“See Toh (CA)”) affect this Appeal (if at all)?

In the High Court case of See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2012] 3 SLR 227, the plaintiff, See Toh Siew Kee, claimed damages against Ho Ah Lam Ferrocement (Private Limited), Lal Offshore Marine Pte Ltd, and Asian...