Ng Huat Seng and another v Munib Mohammad Madni and another

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 22 June 2016
• Neutral Citation: [2016] SGHC 118
• Plaintiff Counsel: N Sreenivasan SC, Sivakumar Murugaiyan, and Lim Jie (Straits Law Practice LLC) (Instructed), Tan Cheow Hin (CH Partners)
• Docket Number: HC/District Court Appeal No 19 of 2015
• Date: 22 June 2016
• Hearing Date: 27 April 2016,23 March 2016
• Subject Matter: Causation,Tort,Vicarious liability,Duty of Care,Non-delegable duties,Negligence,Independent contractors
• Published date: 27 October 2017
• Citation: [2016] SGHC 118
• Defendant Counsel: Raymond Wong and Os Agarwal (Wong Thomas & Leong),Keith Han (Cavenagh Law LLP) as amicus curiae.
• Court: High Court (Singapore)
• Year: 2016

See Kee Oon JC: Introduction

This appeal arose out of certain demolition works performed by Esthetix Design Pte Ltd (“Esthetix”) on the respondents’ property. The respondents had hired Esthetix to demolish the existing dwelling house on their property and to construct another in its place. In the course of the demolition, debris fell on the appellants’ property, causing damage. The District Judge found that Esthetix was negligent and there was no appeal against that decision. However, he found that the respondents were not liable because (a) Esthetix was an independent contractor, (b) the respondents had exercised reasonable care in the selection of Esthetix, and (c) the demolition works in question were not “ultra-hazardous” and therefore did not give rise to a non-delegable duty of care. Dissatisfied, the appellants appealed against all three of the District Judge’s findings.

As this case touched on a few important points of law, policy and principle, one of which was the fact that this appeared to be the first time that the so-called “ultra-hazardous exception” had been considered in Singapore at length, Mr Keith Han was appointed as amicus curiae to assist this court. I record my appreciation for his submissions on the scope and applicability of the “ultra-hazardous exception”, which were succinct, thorough, and well-researched. I derived considerable assistance from them as well as the submissions put forward by Mr N Sreenivasan SC, and Ms Os Agarwal, both of whom argued their respective clients’ cases forcefully.

After careful consideration of the arguments presented, I was not persuaded that the District Judge had erred and I therefore dismissed the appeal. I concluded that the respondents were not vicariously liable as Esthetix was an independent contractor. I was also not persuaded that there was any basis for concluding that the respondents bore any personal liability for the damage that had been caused as they neither (a) failed to exercise due care in the selection of Esthetix as their contractor nor (b) did they owe the appellants a non-delegable duty arising out of the performance of the demolition works. I now set out the detailed grounds for my decision.

Background

The facts were largely undisputed and were set out comprehensively in the District Judge’s grounds of decision, which were reported as Ng Huat Seng and another v Munib Mohammad Madni and others [2015] SGDC 315 (“the GD”). I will only set out the facts which are germane to this appeal. The parties are owners of neighbouring detached properties. The appellants’ house was the lower: the ground level of their house was two metres lower than the house which was on the respondents’ property, which lay further up the slope. Their properties were separated by a wall located on the boundary between the adjoining lands (“the boundary wall”). The building lines of each house were three metres away from the boundary wall, which meant that the distance between the building lines of the parties’ houses was six metres.¹

The respondents had purchased their property in 2010 with the intention of demolishing the existing house and building another in its place (“the works”). The respondents hired Esthetix, a locally incorporated company that held a Class 2 General Builder’s Licence from the Building and Construction Authority (“BCA”), as their builder to carry out the works. The first respondent deposed that this appointment was made on a so-called “turnkey” basis, by which it was meant that Esthetix – as the main contractor – assumed carriage of the entire project and was responsible both for designing the house and for building it, engaging such subcontractors and applying for such approvals as might be required. He explained that this differed from what he called the “traditional approach”, where the owner would engage a team of professionals to design the house and obtain the necessary approvals before calling for a tender and appointing a main contractor.²

Esthetix appointed a number of professional consultants on the project, who were:³ BDL Group Architects (“BDL”), which provided architectural services. Mr Wang Chun Jye of BDL was the development’s qualified person for architectural work. TH Chuah & Partners LLP (“THC”), which provided civil and structural engineering services. Er Lee Yen Fong from THC was the development’s qualified person for structural work. Tenwit Consultants Pte Ltd for the geotechnical engineering services.

Approval from the BCA was sought and obtained on 27 June 2011.⁴ On 5 September 2011, while demolition works were taking place, some debris from the respondents’ property fell on the boundary wall, damaging it. Some of the debris also rebounded off the boundary wall and into the appellants’ property. Among other things, the falling debris broke several window panes, damaged several air-conditioning condensing units located at the exterior of the appellants’ house, and damaged the integrity of the boundary wall. The cost of repairing the damage caused was eventually assessed by the District Judge to be $136,796 (see the GD at [74(b)]).

On 22 May 2012, the appellants commenced District Court Suit No 1426 of 2012, naming the respondents and Esthetix as joint defendants. In their statement of claim, the appellants pleaded that the demolition works were “particularly hazardous and/or extra-hazardous” and that the respondents were personally liable for failing to “exercise reasonable care to avoid or prevent the damage and loss”. It was also pleaded that the appellants had failed to exercise reasonable care in the appointment of Esthetix.⁵ In their defence, the respondents denied that the works had been carried out under their “control, supervision and/or management”. Instead, they pleaded that Esthetix was an independent contractor which they had taken reasonable care in selecting and entrusting the performance of the aforementioned works to.⁶

The District Judge’s decision

The District Judge first considered whether Esthetix was a servant (or, in modern parlance, an employee), in which event the respondents would be held vicariously liable for its actions, or an independent contractor, in which event they would not be vicariously liable (see the GD at [21]–[22]). After reviewing the case-law, the District Judge held that there were two factors which pointed strongly towards the conclusion that Esthetix was an independent contractor.

First, he found that the respondents exercised little control over the manner in which Esthetix was to carry out its work. Among other things, the District Judge pointed to the fact that the appointment was made on a “turnkey” basis and to the fact that Esthetix enjoyed “significant autonomy when selecting and appointing the sub-contractors” with whom it contracted directly (see the GD at [27]–[29]). Second, he found that it was clear that Esthetix had taken on the project as part of its business for its own account. Apart from the fact that Esthetix had entered into contracts with the subcontractors in its “own name”, the District Judge also noted that Esthetix had charged the respondents goods and services tax. For these reasons, among others, the District Judge concluded that Esthetix was “an independent contractor, and not a servant” of the respondents (see the GD at [33]–[35]).

Second, the District Judge considered whether the respondents had been negligent in the selection of Esthetix as its contractor. After examining the facts and circumstances in their entirety, he held that the respondents had not fallen short of the standard of care expected of them in the selection of an independent contractor.

Chief among his reasons was the fact that Esthetix held a “Class 2” general builder’s licence from the BCA. This was significant, he held, because the grant of such a licence was contingent on satisfaction of the statutory requirements in the Building Control Act (Cap 29, 1999 Rev Ed), which required applicants to show that the execution of any building works would be supervised by a person with the relevant technical experience. He also noted that the respondents had solicited the opinion of their friends and sought the advice of their architect, BDL, before confirming Esthetix’s engagement (at [41]) and that there was no evidence that Esthetix had breached any regulations or was unsuitable to undertake the works for any reason (at [37] and [38]). In the circumstances, he found that it was “unobjectionable” for the respondents to have left the project in the hands of Esthetix and the qualified persons Esthetix appointed on a “turnkey” basis. As the respondents were laypersons, the District Judge held that it would be “highly unrealistic” to expect them to personally supervise the works carried out (at [40]).

Last, the District Judge considered if the works were “ultra-hazardous” and thus gave rise to a non-delegable duty of care. He noted that the “ultra-hazardous exception” had been the subject of extensive academic and judicial criticism (at [47]–[49]). Relying heavily on the decision of the English Court of Appeal in Biffa Waste Services Ltd and another v Maschinenfabrik Ernst Hese GmbH and others [2009] 3 WLR 324 (“Biffa Waste”), he held that the exception should be kept “as narrow as possible” and “should be applied only to activities that are exceptionally dangerous whatever precautions are taken” (see the GD at [51], citing Biffa Waste at [78]). Applying that approach to the case, he held that the works did not cross the threshold to being “ultra-hazardous”.

The District Judge noted that there was no proof that any explosives or any other inherently dangerous procedures were used (at [53]). Demolition works, while unquestionably dangerous, were not statutorily regarded as being so exceptionally dangerous that a separate permit had to be obtained in order for it to be carried out (at [55]). He rejected the appellants’...