Rubycon Singapore Pte Ltd v Setron Limited and Another

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 09 June 1998
• Neutral Citation: [1998] SGHC 199
• Published date: 21 August 2008
• Court: High Court (Singapore)
• Plaintiff Counsel: Liew Teck Huat with Michael Puhaindran (Niru & Co)
• Defendant Counsel: Peter Sim, V. Kanyakumari and Chuo Cher Shing (Sim Hill Tan & Wong)

1. This action arose out of a fire on 20 January 1995 at the Setron Building at Dundee Road, Singapore.

2. The Plaintiff was the occupant of the first, fourth and fifth levels and a part of the third level of the building. They were in occupation under four similar tenancy agreements. The First Defendant, the landlord, held a lease on the land and building dated 5 November 1975 from the Housing and Development Board. The Second Defendant was a tenant of the second level of the building.

3. The Plaintiff claimed that smoke and heat from a fire at the Second Defendant’s premises damaged its property on the third and fourth levels and water used to put out the fire damaged its property on the first level.

4. The Plaintiff sued both Defendants and obtained judgment against the Second Defendant in default of appearance.

5. The Plaintiff sued the First Defendant on contract and tort. It claimed that the First Defendant had breached clause 3.1 of the tenancy agreements The clause provided

That the Tenant upon duly paying the rent and other payments hereby reserved and observing and performing the several obligations and stipulations herein on their part contained shall peaceably hold and enjoy the Premises during the term hereby created without any disturbance by the Landlord or any person lawfully claiming under or in trust of the Landlord.

6. The Plaintiff alleged that the First Defendant breached in covenant in two ways. Firstly it permitted or acquiesced to the cooking on the Second Defendant’s premises, and secondly, it failed to provide compartments with fire-rated doors for the switch room and electric riser areas in breach of the Code of Practice for Fire Precautions in Buildings 1991.

7. The allegations relating to the omission of the compartments and fire-rated doors were added on the second day of the trial on 11 March 1998. I allowed these amendments because the Plaintiff had no knowledge of these matters until 9 March when the First Defendant gave discovery and inspection of some documents.

8. Amongst the documents discovered was a letter dated 11 October 1995 from the First Defendant to their architects informing them that the Fire Safety Bureau required plans to be submitted to compartmentalise the switch rooms on the first, second, third, sixth and seventh levels of the building.

9. Another document discovered was a Capital Project Request of the First Defendant dated 10 June 1996 stating

As a result of the fire in Setron Building on 20.01.95, Fire Safety Bureau conducted a thorough inspection of Setron Building and found a number of installations are unauthorised. Among them are the switch room walls and doors which are constructed of normal partition and flush doors. The regulation requires the walls to have 2 hours and doors to have 1 hour fire rating. This work is to regularise the deficiencies.

10. The particulars added by the amendment were

(k) Failing to provide and/or install any or any adequate compartmentation of the switchroom/electrical riser areas on each of the floors of the Setron Building by using walls of adequate fire resistance;

(l) Failing to provide and/or install the compartmentation at the switchroom/electrical riser areas, referred to above, in breach of the provision of Section 3.3 of the Code of Practice for Fire Precautions in Buildings 1991; and

(m) Failing to provide and/or install fire rated doors for the compartmentation at the switchroom/electrical riser areas on each of the floors of the Setron Building with adequate fire resistance, such failure also constituting a breach of the provision of Section 3.4 of the Code of Practice for Fire Precautions in Buildings 1991.

11. The Plaintiff also sought to add particulars specifying the absence of automatic sprinklers and fire-stops. I disallowed them because their absence was referred to in a report of Mr Trevor Walker of 10 February 1995 which the Plaintiff had, and there was no justification to amend the statement of claim to include them at such a late stage.

12. The Plaintiff also claimed that the First Defendant was negligent as landlord for permitting or acquiescing to the cooking and failing to install compartments and fire-rated doors.

13. At the outset of the hearing, I directed that the issue of liability was to be dealt with first, with the damages to be determined later if necessary.

Basis of liability

14. It was submitted on behalf of the First Defendant that the Plaintiff’s rights against the First Defendant should be confined to its contractual rights under the tenancy agreements and that it was not entitled to proceed with its claim on negligence. Counsel cited Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd & Ors [1986] 1 AC 80, where Lord Scarman said at p 107

Their Lordships do not believe that there is anything to the advantage of the law’s development in searching for a liability in tort where the parties are in a contractual relationship. This is particularly so in a commercial relationship. Though it is possible as a matter of legal semantics to conduct an analysis of the rights and duties inherent in some contractual relationships including that of banker and customer either as a matter of contract law when the question will be what, if any, terms are to be implied or as a matter of tort law when the task will be to identify a duty arising from the proximity and character of the relationship between the parties, their Lordships believe it to be correct in principle and necessary for the avoidance of confusion in the law to adhere to the contractual analysis: on principle because it is a relationship in which the parties have, subject to a few exceptions, the right to determine their obligations to each other, and for the avoidance of confusion because different consequences do follow according to whether liability arises from contract or tort, e.g. in the limitation of action.

15. Tai Hing Cotton Mill did not close discussion on the inter-action between tortious and contractual liabilities. Other views had been expressed on the question after Lord Scarman delivered his judgment. In Henderson & Ors v Merrett Syndicates Ltd & Ors [1994] 3 All ER 506 Lord Goff of Chieveley referred to Tai Hing Cotton Mill, Midland Bank Trust Co Ltd v Hett Stubbs & Kemp (a firm) [1978] 3 All ER 571 as well as some Canadian, New Zealand and Australian decisions and pronounced at p 532-3 that

(T)he common law is not antipathetic to concurrent liability, and that there is no sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy. The result may be untidy; but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him subject only to ascertaining whether the tortious duty is so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded.

16. In Marc Rich & Co AG & Ors v Bishop Rock Marine Co Ltd & Ors [1996] 1 AC 211 Lord Lloyd of Berwick said in his dissenting judgment at p 223

The function of the law...