Seah Ting Soon trading as Sing Meng Co Wooden Cases Factory v Indonesian Tractors Co Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 09 January 2001
• Neutral Citation: [2001] SGCA 2
• Docket Number: Civil Appeal No 40 of 2000
• Date: 09 January 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Davinder Singh SC and Ajay Advani (Drew & Napier)
• Citation: [2001] SGCA 2
• Defendant Counsel: Alvin Yeo Khim Hai SC and Kamachi Amparasan (William Chai & Rama)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether burden on bailee to prove duty of care discharged,When appellate court can overturn findings of fact by trial judge,Bailment,Duties,Negligence,Appeals,Findings of fact by trial judge,Whether reasonable care taken to prevent spread of fire,Civil Procedure,Whether bailee liable if cause of fire accidental but spread of fire due to negligence,Fire,Whether bailee duty bound to take reasonable care of bailor's goods,s 63 Insurance Act (Cap 142),Tort,Bailees,Whether reasonable care taken to prevent cause of fire

(delivering the grounds of judgment of the court): This was an appeal against the decision of Goh Joon Seng J (the judge) allowing the respondents` (the plaintiffs`) claim for damages on account of the loss of their goods by a fire at the appellant`s warehouse where it was stored. We heard the appeal and dismissed it and now give our reasons.

The background

The appellant was the owner and operator of a warehouse at No 5 Defu Avenue 2, Industrial Park, Singapore 539516 (`the warehouse`). Pursuant to an oral contractual arrangement between the appellant and the respondents, goods in the nature of spare parts for trucks and tractors of the respondents were stored in the warehouse. Goods of third parties were also stored there. On 4 June 1996, at around 3am, a fire broke out at the warehouse, which completely destroyed it and the goods stored therein.

The Singapore Civil Defence Force (`SCDF`) received a call on the fire at about 3.29am that day. The fire also substantially damaged a neighbouring premises, No 1 Defu Avenue 2 (`the adjoining premises`). The adjoining premises were separated from the warehouse by a boundary fence, which was a steel sheet wall of about ten feet in height (`the boundary fence`).

At the material time, nine of the appellant`s employees were living in the warehouse. Of these, three were Chinese nationals and they resided in the living quarters of the warehouse. The caretaker of the warehouse, Madam Ram Murthi Devi (`Mdm Ram`) and her daughter, Mrs Khantar Devi (`Mrs Khantar`) resided in the guard`s quarters together with Mrs Khantar`s two children. Four Malaysian workers resided directly above the guard`s quarters. Two sketches showing the layout of the warehouse and the adjoining premises are at Annexes A and B.

The respondents claimed against the appellant for the losses on the following alternative bases:

(a) breach of the contract of storage; and/or

(b) breach of bailment; and/or

(c) negligence.

The question of the quantum of the loss was not an issue in the appeal.

At the trial, one of the main issues which confronted the court was as to the location where the fire first originated. On this, the judge found, on the evidence, that it probably started in the kitchen, which was located inside the office block in the warehouse (the judge mistakenly thought the kitchen was outside the office block). He also found that the fire occurred because of the negligence of the appellant.

Five witnesses were called by the plaintiff-respondents, but for our present purposes we need only refer to two: namely, a forensic expert, Mr Andrew Robbins (`Mr Robbins`) and a Civil Defence Force officer, Major Christopher Tan (`Major Tan`). For the defence, five persons gave evidence. Of the appellant`s employees, only Mdm Ram testified. The others were unwilling to return to Singapore to give evidence or could not be traced. Mrs Khantar also testified. The remaining three witnesses were the insurance company`s forensic expert, Mr Barry Ian Dillon (`Mr Dillon`), the loss adjuster, Mr Chan Hwee Seng (`Mr Chan`) and the appellant himself.

Evidence for the defence

It will be convenient if we first deal with the evidence of Mdm Ram and Mrs Khantar as they were at the warehouse when the fire broke out. Mdm Ram told the court in her affidavit of evidence-in-chief that on that eventful morning, 4 June 1996, at about 2am, she woke up to go to the toilet. On the way back from the toilet, she played with her dogs for some 10-15 minutes before returning to her quarters to sleep. Everything then was normal. About ten minutes later, while still lying awake in bed, she heard shouts from the outside. When she opened the door, she saw two Chinese nationals shouting and gesticulating excitedly. She could not understand what they were saying but she saw:

a bright glow at the far end of the premises which was the side adjoining the adjoining premises and where the Chinese nationals quarters were located and I realised that the two Chinese nationals were trying to tell us that a fire was in progress in the adjoining premises. I immediately told my daughter that a fire must be in progress in the adjoining premises even though I could not see any actual flames as the boundary fence separating the adjoining premises and the (warehouse) was quite high ... As we were leaving the (warehouse), I could now see the actual flames as the fire had burned right up to the boundary fence. The office block in the (warehouse) which was right by the boundary fence had still not caught fire, although the fire was rapidly burning right up to it.

As regards Mrs Khantar, she confirmed what the mother said and also stated that `the glow from the fire was very bright indeed` but she `could not see any flames` within the warehouse. After her mother (Mdm Ram) and her own two children were safely out of the warehouse, Mrs Khantar went back to see how she could assist to prevent the fire from spreading. She claimed that on seeing a hose-reel at the front of the main building of the warehouse she pulled it to the boundary fence separating the warehouse and the adjoining premises. In cross-examination she modified this and said she pulled it up to the `middle of the plywood factory.`

We must, however, point out that when SCDF officers interviewed her on the same day, Mdm Ram stated, `I saw the fire burning somewhere around the left side of the premises and it was very smoky.` When the lost adjuster, Mr Chan, saw her two days later (ie 6 June 1996), she said `I also saw a bright glow at the far end of our factory.` It would be noted that she was telling of the glow within the warehouse, not the other side. In Mr Chan`s preliminary report dated 14 June 1996 he stated that Mdm Ram and Mdm Khantar were `unable to state with any degree of certainty where the fire was.` That was only two days after the fire. Yet, they came, some three years after the incident, to tell the court that the fire was at the other side of the fence!

Mr Dillon had no first-hand knowledge of the fire. He did not personally interview any of the workers who were present at the warehouse though his assistant, one Ms Ling, had interviewed five of them. However, he did inspect the warehouse premises on 12 June 1996. In her report (made jointly with Mr Dillon), Ms Ling reported that according to the five workers, the fire originated near the boundary of the warehouse and the adjoining premises. But what they said was not entirely consistent. Some thought the fire first started in the adjoining premises, while others indicated that the place where the fire first started was close to the fence, though they were unclear as to which side of the fence. Thus, based on the evidence gathered by Ms Ling, Mr Dillon was not able to say on which side of the boundary fence the fire started.

As for Mr Chan, he, like Mr Dillon, only inspected the warehouse after the fire. He also spoke to some of the appellant`s workers, but not the workers who resided in the adjoining premises. However, based on the information he had gathered, he was unable to say for certain that the fire started at the adjoining premises. In fact, in his preliminary report to Mitsui Marine & Fire Insurance, he stated that `there are no grounds for a recovery action against any third party.` If Mr Chan believed or was satisfied that the fire had started at the adjoining premises, surely he would have advised his principal to go after the owners/occupiers of the adjoining premises.

Claimants` evidence

It was not in dispute that the SCDF fire-fighters arrived at the scene of the fire about ten minutes after the call was received. Later, at about 4.30am, Major Tan arrived at the site leading a team of investigators. According to him, the warehouse was completely in flames by then, but as for the adjoining premises, he saw black smoke starting to come out from the rear, indicating that the property had just started to burn. He found most damage at the warehouse premises. A significant aspect which was highlighted by Major Tan was this. The warehouse contained a lot of plywood, and the adjoining premises, a lot of foam. It was common ground that foam would burn faster than plywood. His reasoning was, if the fire had started at the adjoining premises, then that property would have burnt more than the warehouse. But the position, as he saw, was in the reverse. However, it was suggested to Major Tan, based on the opinion of Mr Dillon, that by the time Major Tan arrived, the fire at the adjoining premises had already burnt out and that was why the fire at that point in time was more intense at the warehouse. What he saw was the tail end of the fire as far as the adjoining premises were concerned. Major Tan could not accept that assertion because he saw black smoke emanating from the rear of the adjoining premises, which to him demonstrated that the fire there had just started.

Our analysis

Notwithstanding the assertion of the appellant, the fact of the matter was that none of the witnesses who testified actually saw where the fire started. Neither was there any evidence on how it started. The evidence of Mdm Ram and Mrs Khantar seemed very doubtful, though both claimed that the fire started from the other side of the boundary fence. Both of them were some distance away from the fence. Putting it at the highest, they thought the fire had its source at the adjoining premises. Of course, Mdm Ram was an interested witness because she was the caretaker and the fire had occurred while she was there. She even sought to lessen her...