See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd

• Jurisdiction: Singapore
• Judgment Date: 24 April 2013
• Date: 24 April 2013
• Docket Number: Civil Appeal No 54 of 2012
• Court: Court of Appeal (Singapore)

See Toh Siew Kee

Plaintiff

and

Ho Ah Lam Ferrocement (Pte) Ltd and others

Defendant

[2013] SGCA 29

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

V K Rajah JA

Civil Appeal No 54 of 2012

Court of Appeal

Civil Procedure—Appeals—Trial judge not giving reasons in holding appellant contributorily negligent and apportioning liability—Whether judge's apportionment of liability could and should be altered on appeal

Courts and Jurisdiction—Court judgments—Binding force—Practice Statement (Judicial Precedent)—Circumstances justifying departure from precedent

Tort—Occupiers' liability—Whether tort of occupiers' liability ought to be subsumed under tort of negligence

Tort—Negligence—Duty of care—Appellant trespassing onto premises—Whether, on application of Spandeck principles, occupiers owing prima facie duty of care to trespassers

Tort—Negligence—Breach of duty—First and second respondents occupiers of premises—Assuming arguendo duty owed, whether first and second respondents had breached requisite standard of care

Tort—Negligence—Breach of duty—Third respondent responsible for mooring operation which injured appellant—Whether third respondent had breached requisite standard of care

Tort—Negligence—Contributory negligence—Appellant trespassing despite knowing of danger—Whether appellant contributorily negligent

The appellant, See Toh Siew Kee (‘See Toh’) was a service engineer by trade. The tugboat was berthed at 9/11 Tuas Basin Close (‘9/11 TBC’). The first respondent, Ho Ah Lam Ferrocement (Private) Limited (‘HAL’), was the lessor of 9/11 TBC; the second respondent, Lal Offshore Marine Pte Ltd (‘Lal Offshore’) was a sub-lessor of a portion of 9/11 TBC. The third respondent, Asian Lift Pte Limited (‘Asian Lift’), was engaged by Lal Offshore's customer to take delivery of fabricated living quarters, and used a crane barge, Asian Hercules, for this purpose.

The crew of Asian Hercules intended to affix two metal mooring wires to the shore of 9/11 TBC (‘the Mooring Operation’). During the Mooring Operation, the starboard mooring wire got stuck (in shipping parlance, ‘fouled’) at the ramp of another vessel, Namthong 27.The captain of Asian Hercules, Captain Hamid, continued with the Mooring Operation despite the starboard mooring wire being fouled. As a precautionary measure, Captain Hamid sent seven to eight crew members to shore to clear the area and to secure Asian Hercules's mooring wires to the bollards on shore.

See Toh was engaged to service the radar on board a tugboat, Fortune II.See Toh proceeded to 15 Tuas Basin Close (‘15 TBC’) (adjacent to 9/11 TBC) because he had previously attended to Fortune II there, and had thought that the Fortune II was berthed there. He was told that Fortune II was berthed at 9/11 TBC instead. See Toh left 15 TBC through 15 TBC's main gate and entered a second gate of 15 TBC. After entering the aforesaid second gate, See Toh walked to shore, where a fence separated 15 TBC from 9/11 TBC. There was an open space of about 5m between the end of the fence and the shoreline. See Toh entered 9/11 TBC through the gap in the fence. See Toh was injured by Asian Hercules's fouled mooring wire as he was walking towards Namthong 27's ramp.

See Toh sued HAL and Lal Offshore under the tort of occupiers' liability, and also sued HAL, Lal Offshore and Asian Lift under the tort of negligence. The trial judge dismissed all the claims against all the Respondents. See Toh appealed against the trial judge's decision.

Held, partially allowing the appeal with regard to Asian Lift, but dismissing the appeal with regard to HAL and Lal Offshore:

PerV K Rajah JA:

(1) Under traditional common law rules, there were two sets of rules which ordinarily might apply whenever a person is injured on property. The first set comprises the rules governing occupiers' liability, which applied to an occupier qua occupier simpliciter - in other words, rules pertaining to the static condition of property. The second set comprised rules based on the general principles of the law of negligence, which did not apply to an occupier qua occupier as such - in other words, rules pertaining to dynamic activities done on property: at [20] .

(2) The rules governing occupiers' liability predated the seminal decision of Donoghue v Stevenson[1932] AC 562 (‘Donoghue’), which erased the rigid distinctions between hitherto unconnected categories of tort and inductively rationalised the disparate categories as mere instances of the now famous ‘neighbour’ principle: at [21] .

(3) At the time Donoghue was decided, there was no overarching general principle governing occupiers' liability, with the content of the duty owed by an occupier to an entrant determined solely by reference to whether the entrant was an invitee, a licensee or a trespasser. Invitees were owed the highest duty, followed by licensees and trespassers. Commentators had variously described the rules governing occupiers' liability as being confused, complex, cumbersome and expensive to administer. Attempts to reach just results within this trichotomous framework were frequently underpinned by meretricious rationales teetering on the edge of absurdity: at [26] to [31] .

(4) The formalism of the rules governing occupiers' liability appeared to be largely due to path dependence, the existence of inconvenient historical legal precedents, and significantly, the peculiarities of the previously extant jury system. An inductive framework based on Donoghue's ‘neighbour’ principle offered a coherent route to resolving the classificatory problems plaguing occupiers' liability, by simply rendering otiose the invitee-licensee-trespasser trichotomy: at [32] and [34] .

(5) The static-dynamic dichotomy (the division between the static condition of property (‘the static’) and the dynamic activities done on it (‘the dynamic’)) could be (logically) warranted if one could cleanly delineate all potential factual matrices into one category or the other with no overlap. This was not always possible. For some, one portion of the factual matrix would seem to be more susceptible to one classification, while another portion would be susceptible to the other. For other factual matrices, the entire factual matrix seemed to be equally susceptible to both classifications. Trying to distinguish between the static and the dynamic was tantamount to attempting to untie an intractable Gordian knot: at [42] to [46] .

(6) Even if the static-dynamic dichotomy were logically workable, the dichotomy turned on seemingly inconsequential details, was arbitrary and did not comport with justice. The dichotomy obscured the ultimate question of whether a particular occupier ought to be liable in tort to a particular entrant: at [47] .

(7) The invitee-licensee-trespasser trichotomy was susceptible to the same logical-classificatory and practical-arbitrariness concerns: at [48] .

(8) Faced with classificatory problems between the static and the dynamic, the court could either hold that duties were owed solely and exclusively under one rubric, or that duties were owed concurrently under both rubrics. With regard to the former, the court was not guided by rational criteria in shoehorning an ambiguous factual matrix into one particular classification or the other. With regard to the latter, it posed the question as to whether two disparate sets of rules were strictly necessary, especially when the ‘neighbour’ principle should ex facie apply with equal force to occupiers of property qua occupiers: at [49] to [51] .

(9) The time was now ripe for Singapore to cut the Gordian knot shackling the rules on occupiers' liability, rather than attempt to unravel it. It was well-settled that the landmark decision of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency(‘Spandeck’) [2007] 4 SLR (R) 100 had authoritatively laid out the framework for the imposition of a duty of care in claims arising out of negligence; in the context of negligence, the Spandeck test was the Grundnorm - the sole, ultimate set of principles upon which a duty to take reasonable care under the law of negligence rested: at [52] to [54] .

(10) The evolutionary path taken by the law in other common law jurisdictions was instructive. England, two Australian states, six Canadian provinces, 14 United States jurisdictions, Scotland and New Zealand had dispensed with the distinction between invitees and licensees. Four Australian states, two Canadian provinces and 13 United States jurisdictions had also rejected both the static-dynamic dichotomy and the invitee-licensee-trespasser trichotomy: at [56] to [74] .

(11) The law in Singapore on occupiers' liability could and should be subsumed under the tort of negligence. The threshold factual test of reasonable foreseeability was readily met in the case of occupiers; it was eminently foreseeable that entrants would suffer damage if occupiers did not take reasonable care to eliminate danger. Proximity embraced physical, circumstantial and causal proximity, and included proximity arising from the voluntary assumption of responsibility and concomitant reliance. There was undoubtedly physical proximity between an occupier and an entrant merely by virtue of the fact that the entrant was physically situated on the occupier's property. In so far as lawful entrants were concerned, circumstantial proximity was tautologically present in the occupier-lawful entrant relationship because the hallmark of a lawful entrant's presence on an occupier's premises was consent to his presence on the part of the occupier. Under the first limb of Spandeck, the vast majority of occupiers having control of the property which they occupied and/or the activities carried out there de jure owed a prima facie duty of care to lawful entrants. Occupiers were not to be viewed as insurers of the safety of their property; their duty was merely to exercise reasonable care. However...