Saatchi & Saatchi Pte Ltd and Others v Tan Hun Ling (Clarke Quay Pte Ltd, Third Party)

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 15 December 2005
• Neutral Citation: [2005] SGHC 232
• Date: 15 December 2005
• Subject Matter: Breach of duty,Causation,Whether chain of causation broken by omission of third party to clean exhaust ducts,Tort,Whether defendant liable for damage caused,Defendant raising defence of inevitable accident,Fire allegedly caused by leaving wok of cooking oil to heat on stove unattended,Damage caused to plaintiffs' property after fire on defendant's premises spread,Contributory negligence,Whether third party liable for damage caused,Whether first plaintiff guilty of contributory negligence for locating server room near exhaust duct,Whether defendant's negligence causing fire,Fire spreading due to build-up of grease in exhaust ducts,Whether damage caused by fire foreseeable,Negligence
• Docket Number: Suit No 2 of 2004
• Published date: 16 December 2005
• Defendant Counsel: Subramaniam A Pillai (Acies Law Corporation),P E Ashokan (KhattarWong)
• Court: High Court (Singapore)
• Plaintiff Counsel: Foo Yuk Lin (Foo Chia Partnership)

15 December 2005

Belinda Ang Saw Ean J:

1 This is an action by the plaintiffs claiming damages against the defendant in negligence for damage caused to the first plaintiff’s office premises, furniture, fixtures and fittings as well as equipment belonging to both plaintiffs. The first plaintiff is Saatchi & Saatchi Pte Ltd (“Saatchi”) who is the tenant of #03-01, Block 3D, Clarke Quay, and the second plaintiff is Zenith Media Pte Ltd, a subsidiary of the first plaintiff. The defendant is Tan Hun Ling (“Tan”), the sole proprietor of Sin Lok Cuisine. At the material time, Tan was the tenant of #01-03 located in Block 3D from where he operated his seafood restaurant, which was then known as Hong Kong Seafood Place. The defendant has brought in his landlords, Clarke Quay Pte Ltd, as a third party. The trial before me was limited to the liability issue.

2 A fire started in the defendant’s kitchen on 13 November 2002. The defendant’s kitchen was located on the second floor of Block 3D. Saatchi’s office was immediately above the kitchen. The fire started sometime in the morning. The exact time the fire started was imprecise but nothing turned on this. The fire caused some sprinklers in the kitchen to be activated and after 20–30 minutes, the defendant’s cook, Lam Chee Keong (“Chee Keong”) managed to douse the fire. By the time fire fighters from the Singapore Civil Defence Force (“SCDF”) arrived at the scene, the fire appeared to have been completely extinguished. In fact after some checks, SCDF was satisfied that the fire was put out. Fortunately, the fire crew was still on site when someone reported a fire in the building. According to Warrant Officer Azmi Hasan (“Azmi”), he went to the third floor at about 12.00pm. Other witnesses, like Tan, recalled someone coming into his restaurant to report a fire in Saatchi’s office at 1.00pm. Mohd Rizal (“Rizal”), the operations executive of the third party, recalled going up to Saatchi’s office with the SCDF officers at about 1.00pm or shortly thereafter. Azmi’s superior, Capt Alan Toh (“Toh”), arrived at the scene at 1.15pm.

3 A fire was discovered in the first plaintiff’s server room at one corner of the false ceiling. The fire was from the exhaust duct. Access to the rooftop was through the first plaintiff’s office on the third storey. Burnt wooden ventilation panels at the chimney area had fallen through the broken skylight. The skylight was broken either by falling debris or roof tiles from the chimney nearby or both. Nobody was certain about this but it was clear that fallen hot debris had burnt through the ceiling board in the server room.

4 The plaintiffs’ pleaded case is that a wok with a quantity of cooking oil was left on the stove to heat unattended. There was overheating and fire broke out. At the hearing, Chee Keong confirmed that the same cooking oil that he had used on previous occasions was being recycled for the morning’s cooking.

5 The defendant raised the defence of inevitable accident. In other words, the fire was purely accidental. With that, the burden was on the defendant to prove that the fire was accidental in that it was not deliberate or due to negligence. It is the defendant’s case that the cooking oil suddenly splattered and caught fire when it came into contact with the gas-lit stove. Through Chee Keong, the defendant asserted that water had dropped into the wok of oil and that caused the oil to splatter. Everything that happened was beyond the control of the defendant’s servants or was unavoidable by the exercise of any reasonable care or caution.

6 Mr Subramaniam Pillai for the defendant contends that Azmi’s testimony on which the plaintiffs rely is hearsay, as the plaintiffs had not called the kitchen hand, Lam Hai Seng (“Hai Seng”) to testify. The SCDF’s report dated 15 January 2003 identified Hai Seng as the person who had forgotten about the cooking oil left to heat on the stove. Azmi’s testimony in this area is not entirely hearsay. His investigations at the scene of the fire did not throw up inconsistencies to contradict the story gathered at his interview with Hai Seng as to how the fire started. The identity of the person who heated the oil was not so relevant. Putting aside Azmi’s testimony, the evidence before me still pointed to a lack of attention given to the cooking oil left to heat on a lit stove to a point that it combusted. The plaintiffs’ expert, Low Eng Huat (“Low”) explained that in the case of used cooking oil, the self-ignition temperature is lower, which means that combustion takes place much sooner than in the case of virgin oil whose self-ignition temperature is higher.

7 According to Chee Keong, his assistant cook “Henry” lit the stove to heat the cooking oil on his instructions. Henry walked away from the kitchen after turning on the flame and gas supply as Chee Keong had told Henry to go for his lunch. Chee Keong also confirmed that he and Hai Seng were in the kitchen. The rest of the workers were outside having their lunch. Chee Keong had his back to the wok and his attention was directed at sorting out and preparing the fish head for frying. Hai Seng was busy cutting the vegetables. Then a fire broke out causing damage to the immediate surrounding areas of the stove.

8 Although Chee Keong was in the kitchen, he did not see how the fire started. Chee Keong in his written testimony stated that he heard a splatter of oil and as he turned around, the wok and the surrounding areas of the stove were already on fire. In cross-examination, he departed from his written statement. He also vacillated when it came to this incident concerning the alleged splatter of oil which he claimed caused the fire. His testimony was conflicting on two matters[note: 1]: (a) as to whether he actually saw the oil splatter or he simply heard the splatter of oil, and (b) when exactly and why he turned around from his worktable. Mr Pillai downplayed Chee Keong’s inconsistent evidence, offering as excuses Chee Keong’s limited formal education and the constraints associated with testifying in Mandarin, all of which I do not accept as meriting any serious consideration. With the different variations in Chee Keong’s answers, I find Chee Keong’s testimony on the alleged incident involving a splatter of oil to be unreliable.

9 The plaintiff’s expert testified that some water could be found in used cooking oil. As used oil heats up, a crackling sound is heard. That was as far as the evidence went. If anything, in all probability, Chee Keong heard this crackling sound which he mistook for a splatter of oil. For completeness, I should mention that the defendant led no evidence to support his theory that the splatter of oil was due to water dropping into the wok from either water condensation at the cooker hood or water from the overhead sprinkler.

10 Mr Pillai argued it was not foreseeable that fire in the kitchen would ignite oil residue within the exhaust ducting and cause such widespread damage from hot debris falling through a broken skylight onto the false ceiling in the server room. It was also not foreseeable that falling hot debris from burnt wooden ventilation panels at the chimney would fall onto the skylight, crack it and enable rain to ingress into the first plaintiff’s premises.

11 These contentions do not assist the defendant. The law is clear. The test of liability for damage done by fire is the foreseeability of the injury by fire. If a reasonable man would not have foreseen such injury, the defendant would not be liable in negligence for the damage even though its servant’s carelessness was the direct cause of the damage: see Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388. Once the type of damage is shown to have been foreseeable, it is no defence to the plaintiff’s case to assert that the full extent of the damage could not have been foreseen or the particular method by which the damage was caused could not have been foreseen: see Hughes v Lord Advocate [1963] AC 837.

12 It is, or should be, known to a reasonable person that leaving anything on a lit stove unattended poses a risk of fire or smoke damage. A person is negligent if he does not foresee what a reasonable person in his position would have foreseen in similar circumstances. Sheik Amin bin Salleh v Chop Hup Seng [1974] 2 MLJ 125 is an illustration of the same duty of care. In that case, the court held that the failure of the defendant to have someone keep watch over the premises until the fire had been put out or extinguished was itself sufficient evidence of negligence. In this case nobody was actually keeping an eye on the oil that was left to heat. A fire broke out causing damage to the immediate surrounding areas of the stove. This was caused by Chee Keong’s action in firstly allowing, and then leaving, the wok of oil to heat unattended. As there were no plausible alternative causes of the fire, Low opined that the oil in the wok must have been heated to a temperature where self-ignition or boilover occurred. Once the oil ignited it would have sustained a fire. A kitchen fire is not unexpected and it is therefore necessary for any reasonable person to avoid in any way possible such an occurrence and, secondly, to have in place measures to combat such a fire should it occur.

13 I have no difficulty in finding that the act of leaving the oil to heat unattended amounted to negligence for which the defendant is vicariously liable. It was foreseeable that the wok left to heat unattended could become a fire hazard. A reasonable person in the position of the defendant would have foreseen in similar circumstances that if there was a fire and it was not contained, it could spread to other units in the same building.

14 A question at this trial is whether the spread as opposed to the starting of the fire was caused by any negligence on the part of the defendant. Was the defendant responsible for the spread of the...