Pars Carpet Gallery Pte Ltd v Marina Centre Holdings Pte Ltd

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeWarren Khoo L H J
Judgment Date12 December 1996
Neutral Citation[1996] SGHC 287
Citation[1996] SGHC 287
Plaintiff CounselLiew Teck Huat (Niru & Co)
Defendant CounselChan Hock Keng (Bih Li & Lee)
Date12 December 1996
Docket NumberDistrict Court Appeal No 19 of
Published date19 September 2003
Subject MatterTenant's goods are damaged by water coming through false ceiling above shop,Water is caused by negligence of landlord's agents or servants,Contractual terms,Whether the exclusion clause in tenancy agreement exempts landlord,Contract,Tenancy agreement,Exclusion clauses

The plaintiffs are a company dealing in ornamental carpets and rugs. The defendants are the owners of the Marina Square development at Raffles Boulevard. Under a tenancy agreement, the plaintiffs leased from the defendants a shop unit on the third level of the shopping centre, which is part of the development, for a period of three years commencing on 1 March 1991, for use by the plaintiffs as an office and showroom for the display of their goods.

On the morning of 17 April 1992, which was a public holiday (Good Friday), an accident happened, in which water came through the false ceiling above the plaintiffs` shop and damaged a substantial portion of the plaintiffs` stock of carpets and rugs. It was subsequently established that the water which damaged the plaintiffs` stocks was pressurised chilled water from a pipe forming part of the air-conditioning system of the complex under the control of the defendants. The pipe was suspended from the concrete slab within the ceiling void above the plaintiffs` shop. The metal rods holding the pipe had given way, and the pipe sagged. The resultant stress caused a joint of the pipe to be dislodged, allowing the pressurised water to escape.

In a suit brought in the plaintiffs` name (I understand by insurers by subrogation) claiming damages for the loss sustained by the plaintiffs, the learned district judge Miss Jasvender Kaur found that the escape of the pressurised water was due to the negligence of the defendants. However, her honour held that cl 36.1(b) of the tenancy agreement exempted the defendants from liability for their negligence, and she accordingly dismissed the plaintiffs` claim.

There is no appeal against the finding of negligence. The sole question before me on this appeal is whether the learned district judge was correct in holding that cl 36.1(b) of the tenancy agreement applied so to exempt the defendants from liability for their negligence. The arguments centre around the application of the `tests` enunciated by Lord Morton in Canada Steamship Lines v R [1952] 1 All ER 305 at p 310 for the interpretation of exemption clauses in contracts. Citing the principles enunciated by Lord Greene MR in Alderslade v Hendon Laundry Ltd [1945] 1 All ER 244, Lord Morton proposed as follows:

(i) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called the proferens) from the consequence of the negligence of his own servants, effect must be given to that provision (ii) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens (iii) If the words used are wide enough for the above purpose, the court must then consider whether `the head of damage may be based on some ground other than that of negligence` The `other ground` must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it, but, subject to this qualification, the existence of a possible head of damage other than that of negligence is fatal to the proferens even if the words used are, prima facie, wide enough to cover negligence on the part of his servants.



The assumption of the law is that a party to a contract is not to be taken as having exempted himself from liability for his own negligence unless he uses express language to that effect. If he does not use express language, but uses language which is capable of being construed as having such an effect as well as having the effect of exempting him from some other species of liability, then the court will lean in favour of construing the language as having the latter effect. As explained by Lord Greene in the Alderslade case, the reason for this is that if a contracting party wishes in such a case to limit his liability in respect of negligence, he must do so in clear terms, and in the absence of such clear terms, the clause is to be construed as relating to a different kind of liability than that based on his negligence.

As has repeatedly been pointed out, the `tests` in the Canada Steamship case are merely guidelines for a restrictive interpretation of exemption and indemnity clauses. They do not form a rule of law. Furthermore, the court will not construe such a clause as capable of covering a head of liability other than the negligence of the proferens if it would be fanciful to do so. In Gillespie Bros & Co Ltd v Roy Bowles Transport Ltd [1973] QB 400 at p 415; [1973] All ER 193 at p 199, Lord Denning MR said that the correct position is simply this: even though the words of a clause are wide enough in their ordinary meaning to exclude liability for negligence, nevertheless if it is apparent that sufficient content can be given to them without doing so, then they will be given that content only; they will not be held to cover negligence.

The case at hand

In the instant case, cl 36.1(b) is part of a whole series of provisions in the tenancy agreement whereby the defendants seek generally to modify in the defendants` favour their rights and obligations as the landlords under the common law. These provisions may conveniently be put in three categories: exemption, insurance, and indemnity. Clause 36.1 is in the nature of an exemption clause. It provides as follows:

It is hereby agreed between the landlord and the tenant that the landlord and its officers, servants, employees or agents shall not be liable or in any way responsible:

(a) for any damage to property (whether belonging to the tenant or to others) entrusted to the landlord`s officers, servants, employees or agents in the shopping centre or Marina Square;

(b) for any injury or damage to persons or property or any consequential loss resulting from short circuit of electrical wiring, explosion, falling plaster, steam, gas, electricity, water sprinkler, rain plumbing or other pipe and sewerage system, leaks from any part of the shopping centre or Marina Square, the roof, street, sub-surface or any other place, dampness, or any appurtenances being out of repair unless caused by the wilful misconduct of the Landlord or its officers, servants, employees or agents;

(c) for any damage caused by other tenants or persons in the shopping...

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3 cases
  • Rapiscan Asia Pte Ltd v Global Container Freight Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 16 April 2002
    ......Marina Centre Holdings Pte Ltd v Pars Carpet Gallery Pte ......
  • Marina Centre Holdings Pte Ltd v Pars Carpet Gallery Pte Ltd
    • Singapore
    • Court of Three Judges (Singapore)
    • 28 August 1997
    ...allowed the appeal and awarded the respondents the sum of $87,688 as claimed and interest thereon amounting to $9,006 and costs [see [1997] 2 SLR 486]. Against that decision, the appellants appealed. The Before us the main contention of the appellants was that cl 36.1 of the lease and, in p......
  • Marina Centre Holdings Pte Ltd v Pars Carpet Gallery Pte Ltd
    • Singapore
    • Court of Three Judges (Singapore)
    • 28 August 1997
    ...allowed the appeal and awarded the respondents the sum of $87,688 as claimed and interest thereon amounting to $9,006 and costs [see [1997] 2 SLR 486]. Against that decision, the appellants appealed. The Before us the main contention of the appellants was that cl 36.1 of the lease and, in p......

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