National Parks Board v CST Cleaning & Trading Pte Ltd
| Jurisdiction | Singapore |
| Judge | Leslie Chew |
| Judgment Date | 01 April 2008 |
| Neutral Citation | [2008] SGDC 7 |
| Citation | [2008] SGDC 7 |
| Court | District Court (Singapore) |
| Plaintiff Counsel | Ramesh (Allen & Gledhill LLP) |
| Defendant Counsel | Mahtani/Dason (Harpal Mahtani Partnership) |
| Published date | 31 July 2008 |
| 1 April 2008 |
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District Judge Leslie Chew:
1. This action came up for hearing on 16 November 2007. Although two affidavits of evidence were filed, one each for the Plaintiffs and the Defendants, in reality there is no dispute over the factual basis of the action. Counsel confirmed this. The entire dispute arises out of the interpretation of an indemnity clause which is found in the contract dated 23 October 1998 between the Plaintiffs and the Defendants. In the result, at the hearing neither Counsel cross-examined the other’s witness.
2. The basic facts which formed the factual basis of the present action arose out of another action, namely MC Suit No 1693 of 2001 L.
3. The Plaintiffs are a statutory board. Among other things, they maintain public parks in Singapore. One of the parks which the Plaintiffs are responsible for is the Pasir Ris Park.
4. The Defendants are a company which provides cleaning services. They are what may be popularly described as cleaning contractors. By an agreement dated 23 October 1998 (‘the Contract’) the Plaintiffs awarded the cleaning contract to the Defendants in respect of Pasir Ris Park. A copy of the Contract appears in AB 24 to 42.
5. In December 1999 while the Defendants were the cleaning contractors for Pasir Ris Park. On 5 December 1999, a young boy, Liew Yu Wei (‘Liew’) was cycling in the park when he collided with a lorry driven by one Ang Cheng Chai. As a result of the collision the boy suffered injuries. Ang was a driver employed by the Defendants’ sub-contractor namely Tan Tai Sang Pte Ltd. Subsequently the boy, Liew instituted action against the Plaintiffs, the Defendants and the Defendants’ sub-contractor, Tan Tai Seng Pte Ltd (‘the Subcontractor’). The action by Liew, is MC Suit No 1603 of 2001 L (‘the MC Suit’). The trial of the MC Suit took place over a number of days in 2002 and 2003. On 28 April 2003, the court in the MC Suit found the Plaintiffs jointly liable with the Subcontractor for the injuries caused to Liew arising out of the collision in Pasir Ris Park. In the result, the Plaintiff became liable to pay Liew in respect of the MC Suit the sum of S$41,526.70, interest and costs. Pursuant to the outcome of the MC Suit, the Plaintiffs has since paid Liew the total sum of S$98, 161.39 comprising the following:
a. S$41,526.70 being the Plaintiffs’ portion of the damages payable to Liew
b. S$6,064.61 interest
c. S$48,604.08 taxed costs
d. S$1,966.00 court fees payable on the taxed Bill of Costs
In addition, the Plaintiffs also paid the Defendants the sum of S$16,109.13 being 50% of the taxed costs and court fees pursuant to the judgment of the court in the MC Suit. The total sum which the Plaintiffs had to bear arising out of the MC Suit was S$114,270.52.
6. In the present action, the Plaintiffs claimed the sum of S$114,270.52 against the Defendants. The basis of the Plaintiffs claim is premised on Clause 22(a) of the Contract. The Plaintiffs contend in this action that by the terms of Clause 22(a) of the Contract, the Defendants being the ‘Contractor’ described therein is liable to indemnify the Plaintiffs for the loss they have suffered by reason of the Plaintiffs having to pay the damages to Liew in the MC Suit.
7. The Defendants do not dispute that the terms of Clause 22(a) though of course they dispute the Plaintiffs’ interpretation and the import of the clause. In order for the clause to be fully understood and appreciated, it would be necessary to refer to its precise terms. For that purpose, I set out the text of Clause 22(a):
“The Contractor shall be liable for and shall indemnify the Board in respect of any liability, loss, claim or proceedings whatsoever arising under any statute or common law in respect of personal injury to or death of any person whomsoever arising out of or in the course of or by reason of the execution of the Works provided that the same is due to any negligence, omission or default of the Contractor, his servants or agent or any sub-contractor, his servant or agents.”
8. The factual basis of the Plaintiffs claim is set out in their Statement of Claim of 6 April 2005 at paragraphs 6 to 12:
“On or around 5th December 1999, on Liew Yu Wei, who was then 5 years old, was cycling at the Pasir Ris Park when his bicycle was collided into by a lorry (registration no. YD 2338X) driven by one Ang Cheng Chai.
The infant Liew Yu Wei, suing by his lawful father and next friend, brought an action, MC Suit No. 1693 of 2001/L, against the Plaintiffs, the Defendants and one Tan Tai Sang.
During the course of the trial of the MC Suit No. 1693 of 2001/L, the following facts were established:-
(i) The Defendants had sub-contracted the cleaning works at Pasir Ris Park to Tan Tai Sang without informing the Plaintiffs and/or obtaining the Plaintiffs’ written consent.
(ii) Ang Cheng Chai, the driver of the lorry, was Tan Tai Sang’s servant and/or agent; and
(iii) Ang Cheng Chai had been negligent and Tan Tai Sang was vicariously liable for the same.
On the 28th of April 2003, the Honourable District Judge Ms Irene Wu adjudged the Plaintiffs as jointly liable with Tan Tai Sang to pay Liew Yu Wei damages of S$41,526.70, interest and costs.
Pursuant to the Judgment, the Plaintiffs have paid Liew Yu Wei the total sum of S$98,161.39 comprising damages in the sum of S$41,526.70, interest amounting to S$6,064.61, costs which was taxed at S$48,604.08 and court fees payable on the taxed Bill amounting to S$1,966.00.
Pursuant to the Judgment and the Registrar’s Certificate dated 24 September 2004, the Plaintiffs have also paid the Defendants S$16,109.13 being 50% of their taxed costs and court fees.
The Plaintiffs therefore claim an indemnity for all such liability, loss, claim or proceedings amounting to-date to S$114,270.52.
The Plaintiffs’ Arguments
9. The Plaintiffs’ case is a simple one. Based on the outcome of MC Suit No. 1693 of 2001 L the Plaintiffs argue that they are entitled to avail themselves of the indemnity in Clause 22(a) of the Contract. The claims as set out above, amounted to S$114,270.52. The Plaintiffs therefore say what they had to pay out and which they have paid out represented the loss arising out of the negligence of a sub-contractor, the Defendants’ sub-contractor and their servant, the driver who was the direct tortfeasor. Accordingly, that loss the Plaintiffs suffered is loss within the meaning of Clause 22(a) of the Contract and for which the Plaintiffs are entitled to be indemnified by the Defendants.
10. The Plaintiffs say that they were found liable in MC Suit No. 1693 of 2001 L on account of the negligence of the driver of the vehicle who was employed by the Sub-contractor. In turn the sub-contractor was the Defendants’ subcontractor. The Plaintiffs also referred to the Judgment in the MC Suit where the court had at paragraph 86 observed as follows:
“86. Accordingly, I find that the 1st Defendant [the plaintiffs here] liable qua occupier or alternatively, qua joint tortfeasor with the 3rd defendant in negligence. It may look to the 2nd defendant [the Defendants here] to be indemnified under clause 22(a) of its contract with the 2nd defendant.”
The Defendants’ Position
11. The Defendants’ defence is equally simple. Their case is that on the true construction of Clause 22(a), unless the Plaintiffs are found to be liable for the subcontractor, the Defendants in this situation, the Clause does not apply or as the Defendants submitted, ‘does not kick in’.
12. In the factual matrix before this Court, the Defendants argued that following upon the reasoning set out above, the Defendants cannot be liable under Clause 22(a) since in the MC Suit the court did not find the Defendants liable in any way. The court there found negligence made out against the Plaintiffs and the Subcontractor only.
13. More significantly, the main plank of the Defendants’ position is that the provision in Clause 22(a) is intended to cover the situation where the Plaintiffs as an employer is found to be vicariously liable to a third party for the negligence of its contractor or subcontractor.
14. The Defendants argued that the clause 22(a) is not an open-ended indemnity for all loss that the Plaintiffs may suffer. There must be fault on the part of the contractor or subcontractor for which the Plaintiffs are found to be...
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