Ng Huat Seng and another v Munib Mohammad Madni and another

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 26 September 2017
• Neutral Citation: [2017] SGCA 58
• Citation: [2017] SGCA 58
• Published date: 30 September 2017
• Plaintiff Counsel: N Sreenivasan SC, Lim Jie and Jason Lim (Straits Law Practice LLC), and Tan Cheow Hin (CH Partners)
• Defendant Counsel: Os Agarwal and Raymond Wong (Wang Xukuan) (Wong Thomas & Leong)
• Docket Number: Civil Appeal No 99 of 2016
• Hearing Date: 02 March 2017
• Date: 26 September 2017
• Subject Matter: Vicarious liability,Negligence,Independent contractors,Non-delegable duties,Tort,Breach of duty

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

This was an appeal against the decision of the learned judicial commissioner (“the Judge”) who dismissed the appellants’ claim against the respondents for damage to their property. The damage was the result of demolition works carried out by a contractor on the respondents’ premises. It was not disputed that the contractor had been negligent. The question was whether the respondents too were liable. The Judge’s decision is reported as Ng Huat Seng and another v Munib Mohammad Madni and another [2016] 4 SLR 373 (“the High Court GD”). Three principal issues, corresponding to the three heads of liability relied on by the appellants, arose for our determination in this appeal: whether the respondents were vicariously liable for the negligence of their contractor (the “vicarious liability issue”); whether the respondents had exercised reasonable care in selecting and appointing the contractor to undertake the demolition works (as well as other construction works) on their property (the “negligent selection issue”); and whether the respondents owed the appellants a non-delegable duty of care to ensure that the contractor took reasonable care in performing the demolition works (the “non-delegable duty of care issue”). In this context, the question also arose as to whether the doctrine of ultra-hazardous acts, under which a non-delegable duty of care is imposed in respect of the performance of such acts, should be recognised as part of Singapore law.

After hearing the parties, we ruled against the appellants on all three issues and dismissed the appeal. In the course of the arguments, it was suggested that the doctrine of ultra-hazardous acts (assuming it is recognised as part of our law) should be subsumed under the general law of negligence in Singapore instead of being analysed as a separate and independent basis for imposing liability. We deal with this issue and also set out the detailed reasons for our decision in this judgment.

Background facts

The parties own neighbouring properties located along a slope. The appellants’ house is the lower property: the ground level of their house is 2m lower than the ground level of the respondents’ house, which lies further up the slope. The building lines of the two houses are about 6m apart, with the two properties separated by a wall located on the boundary between the two plots (“the boundary wall”).

The respondents purchased their property in 2010 intending to demolish the existing house there and build another in its place. The respondents hired Esthetix Design Pte Ltd (“Esthetix”), a locally incorporated company holding a Class 2 General Builder’s Licence from the Building and Construction Authority (“the BCA”), to carry out the required demolition and reconstruction works. Esthetix was appointed on a “turnkey” basis, meaning that as the main contractor, it assumed carriage of the entire project and was contractually responsible to the respondents for both demolishing the existing house on the property as well as designing and building the new house. To that end, it was to engage such subcontractors and professional consultants and apply for such approvals as might be required. It was put to us by the appellants that this differed from the “traditional approach”, under which the owner would engage a team of professional consultants to design the house and obtain the necessary approvals before calling for tenders and appointing a main contractor to undertake the construction of the house. In keeping with the arrangement in this case, Esthetix appointed professional consultants to provide it with the requisite architectural and engineering services for the project. It sought and obtained approval from the BCA in June 2011 for the works on the respondents’ property to be carried out.

On 5 September 2011, while demolition works were taking place on the respondents’ property, some debris from the respondents’ property fell on the boundary wall and damaged it. Some of the debris also ricocheted off the boundary wall and landed in the appellants’ property. Among other things, the falling debris broke a number of windowpanes, damaged several air-conditioning condensing units located at the exterior of the appellants’ house and undermined the integrity of the boundary wall.

On 22 May 2012, the appellants commenced proceedings in the District Court against the respondents and Esthetix as joint defendants. In their statement of claim, the appellants pleaded that the demolition works on the respondents’ property 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”. They further pleaded that the respondents had failed to exercise reasonable care in appointing Esthetix as their contractor. In their defence, the respondents denied that the demolition works had been carried out under their “control, supervision and/or management”. Instead, they pleaded that Esthetix was an independent contractor to whom they had entrusted the performance of the demolition works, having exercised reasonable care in selecting Esthetix for this purpose.

The decisions below The decision of the District Court

The proceedings were first heard by a district judge (“the DJ”), whose decision is reported as Ng Huat Seng and Kho Sung Chin v Munib Mohammad Madni, Zahrah Ayub and Esthetix Design Pte Ltd [2015] SGDC 315 (“the District Court GD”).

The DJ allowed the appellants’ claim against Esthetix. He found that Esthetix had been negligent in carrying out the demolition works and was therefore liable to the appellants for the damage caused to their property. The DJ quantified the cost of repairing the damage at $136,796. The liability of Esthetix to pay this sum to the appellants has not been appealed against.

The DJ, however, dismissed the appellants’ claim against the respondents. He found that: Esthetix was an independent contractor of the respondents and the respondents were therefore not vicariously liable for its negligence; the respondents had not been negligent in appointing Esthetix to carry out the demolition works on their property; and the respondents did not owe the appellants a non-delegable duty of care in respect of the performance of the demolition works because those works were not “ultra-hazardous”. In the circumstances, there was no basis in law for imposing liability on the respondents.

On finding (a), the DJ held that where the vicarious liability issue was concerned, there were two factors which were determinative. First, the respondents had little control over the manner in which Esthetix was to carry out the demolition works on their property. As Esthetix had been appointed on a “turnkey” basis, it enjoyed “significant autonomy when selecting and appointing the sub-contractors” with whom it contracted directly for the execution of certain parts of those works (see the District Court GD at [27]–[29]). Second, it was clear that Esthetix had taken on the project as part of its business and for its own account. Esthetix had entered into contracts with subcontractors in its own name, and had charged the respondents goods and services tax (at [33]–[34]). For these reasons (among others), the DJ held that Esthetix was an independent contractor and not an employee of the respondents (at [35]).

On finding (b), which addressed the negligent selection issue, the DJ held that the respondents had not fallen short of the standard of care expected of them in selecting a contractor. Given that the respondents were laypersons, the following facts showed that they had not been negligent in engaging Esthetix to undertake the demolition works on their property: Esthetix held a Class 2 General Builder’s Licence from the BCA, which meant that it satisfied the statutory conditions to undertake the type of work that was done in this case. Esthetix was also subject to statutory requirements which mandated (among other things) that the execution of any building works be supervised by a person with the requisite technical expertise (at [37]); there was no evidence that Esthetix had breached any regulations, nor was there any reason to think that it was unsuitable to undertake the demolition works in question (at [38]); and the respondents had solicited the opinions of their friends and sought the advice of the architect for the project before confirming the appointment of Esthetix as their contractor (at [41]).

On finding (c), which concerned the non-delegable duty of care issue, the DJ adopted the approach 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”), in which it was held that the doctrine of ultra-hazardous acts should be “kept as narrow as possible” and “applied only to activities that are exceptionally dangerous whatever precautions are taken” [emphasis in original omitted] (see the District Court GD at [51], citing Biffa Waste at [78]). Applying that approach, the DJ held that the demolition works in this case did not cross this threshold so as to be deemed “ultra-hazardous”. This was because: there was no evidence that any inherently dangerous procedures were to be employed as part of those works (at [53]); demolition works were commonly carried out in Singapore and were not statutorily regarded as being “particularly hazardous and/or extra-hazardous” such that a separate permit had to be obtained for them to be carried out (at [54]–[55]); and the demolition works in the present case were unlikely to have presented any hazard to anyone if they had been done with due caution by a skilled contractor (at [57]). The DJ thus found that the respondents did not owe the appellants a non-delegable duty of care in...