Shimizu Corporation v Lim Tiang Chuan and Another (The Tai Ping Insurance Co Ltd, Third Party)

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 25 May 1993
• Neutral Citation: [1993] SGHC 117
• Docket Number: Suit No 899 of 1990
• Date: 25 May 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: NK Pillai (Harry Elias & Partners)
• Citation: [1993] SGHC 117
• Defendant Counsel: Kee Lay Chien and Veronica Lai (Rajah & Tann),Lee Tau Chye (Lee Brothers)
• Court: High Court (Singapore)
• Subject Matter: Tort,Negligence,Property insurance,Insurance,Fire originating from the defendants,Damage caused by fire,Claim by insured whose building was damaged by fire against insurers,building spreading to the plaintiffs,Defences raised by insurers,Whether defendants liable in negligence for fire originating from their building,Fire,building and damaging it,Whether damage was insured item in policy,claim- for insurance purposes,Causation,No explanation as to how the fire started,Insurers' liability,Meaning of

Cur Adv Vult

The plaintiffs are developers and contractors and at the material time were engaged by the Housing and Development Board (`HDB`) to construct blocks of apartments in various housing estates including the housing estate in Choa Chu Kang New Town. For the purpose of their business, the plaintiffs built a temporary timber building (`the plaintiffs` building`) at a site near Block 2 in Teck Whye Avenue for storing building materials. The defendants are a firm of contractors and at the material time were also engaged by HDB to construct blocks of apartments in the same or adjoining areas. They also constructed at the site next to the plaintiffs` building a temporary three-storey timber building (`the defendants` building`) as living quarters for their workers. Adjoining the defendants` building but on the other side thereof was also constructed a timber building of another contractor, Eng Seng Lee Construction Pte Ltd (`Eng Seng Lee`). In other words, the defendants` building was situated between the plaintiffs` building and Eng Seng Lee`s building.

On 17 July 1988 at about 8.40 pm, a fire broke out which totally destroyed and gutted the defendants` building, substantially damaged Eng Seng Lee`s building, and partially damaged the plaintiffs` building. The plaintiffs` damage was surveyed and assessed by their insurers` adjusters, Toplis And Harding (Singapore) Pte Ltd and a claim therefor was presented to the defendants for payment, but no payment was made.

On 22 May 1990 the plaintiffs instituted this action against the defendants claiming damages for negligence. In their statement of claim, the plaintiffs averred that the fire originated from the defendants` building and was caused by over-heating of food left unattended on a kerosene stove on the top floor of the building, and that the fire was caused by the negligence of the defendants as owners and occupiers of the building and/or their servants or agents. In the alternative, they averred that the defendants had allowed cooking by the use of a kerosene stove to be carried on in the building and allowed fire to escape therefrom and damaged the plaintiffs` building. In their defence, the defendants admitted the fire on 17 July 1988 but denied all the other allegations; their defence was one of bare denial. On 8 July 1991, the defendants took out a third party notice against their insurers (`the insurers`), the third party, claiming an indemnity. In their statement of claim against the insurers, the defendants averred that by the policy of insurance No PCR-87-70037, the insurers agreed, inter alia, to indemnify the defendants in a sum up to $1m against any loss or damage to property belonging to third parties occurring in direct connection with the construction or erection of the building as described in the policy. They claimed against the insurers an indemnity or alternatively damages for breach of contract of insurance. The insurers in their defence (as subsequently amended) raised multiple defences, which I shall set out in detail later.

As between the plaintiffs and the defendants, the issues are simple and straightforward: (i) whether the fire was caused by the negligence of the defendants, their servants or agents, and (ii) whether the defendants, their servants or agents had allowed to be brought to the defendants` building a kerosene stove for cooking and had allowed fire to escape therefrom and to damage the plaintiffs` property. I now turn to the facts that have been established before me. There was no dispute that the fire broke out on the evening of 17 July 1988 at about 8.40 pm. There was no direct evidence on the cause of the fire. The plaintiffs called Choo Beng Khiam, the deputy head of operations of the Civil Defence Force. He produced a report written by him, in which he said, among other things, that the fire was believed to have been caused by the over-heating of food left unattended on a kerosene stove. However, he was not at the scene of the fire at the material time, and he said that his report was based on a field incident report, the material part of which was written by one of the officers, Noordin Hamid. The field incident report was produced and admitted with the consent of all the parties. However, Noordin Hamid was not called by any of the parties for cross-examination or clarification of the matters stated in the field incident report. That report contained, among other things, the following statement:

As the result of this fire, two blocks of three-storey sub-standard timber construction with zinc roofing and their contents such as clothing, wooden formwork, vibrator engine, vibrator hose, television, passports, kerosene stove, etc were totally destroyed.

The site store and Shimizu Construction Co Ltd near the building, their contents were partially damage by the heat.

The plaintiffs then called one Loh Peng Liong who is a site administrator of the plaintiffs. He could not give any direct evidence on the incident of the fire. He went to the site the following morning and found that the plaintiffs` store had been partially damaged. He enquired from the Chinese workers who were working there as to the cause of the fire and he took statements from them on the basis of which he prepared a report. He produced the report. However, this report was purely hearsay in so far as the truth of the content is concerned and I cannot accept it as a true report of what took place on that evening. The other material witness for the plaintiffs was Chua Beng Tong who was the site manager of the plaintiffs. He went to the site on the evening of the fire, arriving there at about 9.45 pm. He saw the fire burning the defendants` building and the plaintiffs` store beginning to burn. After he arrived he directed the firemen to connect the water hose to the fire hydrant. He said that he made enquiry from the workers and was informed that the fire had started from the defendants` building.

Some photographs of the site were taken and were produced. In particular, there was one photograph showing that the whole of the defendants` building was completely destroyed and gutted, that substantially the whole of Eng Seng Lee`s building was damaged and that the plaintiffs` building was partially damaged.

The second defendant, Lim Thiam Seng, gave evidence. He said that on the evening of 17 July 1988 he received a call from one of his workers that there was a fire at his workers` quarters. He rushed to the scene and by the time he arrived, the fire had almost been extinguished by the fire brigade. He was trying to find out the cause of the fire but the workers said that they did not know because when the fire broke out, they rushed for safety. In cross-examination, he admitted that the fire started in his workers` quarters.

That was all the evidence before me on the incident of the fire. There was no investigation conducted by any fire expert as to the probable cause of the fire. Apart from the two reports from the Fire Service Department, the other reports before me were the claim adjusters` reports, which had no probative value in so far as the probable cause of the fire was concerned, and are of no assistance to me in that respect. Counsel for the plaintiffs relied on the report of Choo Beng Khiam which said, among other things, that `the fire was believed to be caused by the over-heating of food left unattended on a kerosene stove` in the defendants` building. In so far as this evidence is concerned, I am unable to accept it as the statement was purely hearsay and cannot be evidence of the truth of the content. Reliance was also placed on the field incident report and in particular that part thereof made by Noordin Hamid which said that the contents of the defendants` building such as kerosene stoves, among other things, were totally destroyed. On the basis of this, it was submitted on behalf of the plaintiffs that kerosene stoves must have been used by the defendants` servants in cooking food and the fire was caused by cooking or over-heating of food in the defendants` building. I accept that this is a possible inference to be drawn, but on the balance of probabilities I cannot properly draw this inference. In my judgment, on the evidence before me the true cause of the fire has not been established.

As to the place of origin of the fire, I think there was evidence before me. There was the evidence of Chua Beng Tong who went to the scene of the fire while the fire was still burning and his evidence was that at that time the defendants` building was on fire and the plaintiffs` stores were beginning to burn. There was also evidence from the photographs which showed the extent of the damage: the whole of the defendants` building was completely destroyed and gutted, while substantially the whole of the adjoining building of Eng Seng Lee was damaged and the plaintiffs` building was partially damaged. The second defendant himself admitted that the fire started in his workers` quarters. On the evidence before me, I am satisfied on the balance of probabilities that the fire originated from the defendants` building.

There was no evidence on the basis of which I can make any finding on the second issue, ie whether the defendants` servants had brought to the building a kerosene stove and used it for cooking and the use of that caused the fire. It has not been established to my satisfaction that a kerosene stove had been brought to the defendants` building and was used in cooking or heating food and that the fire was caused by over-heating of food left unattended on the kerosene stove in the defendants` building. There remains only the first issue, ie whether the fire was caused by the negligence of the defendants, their servants or agents. The burden is on the plaintiffs to prove that it was so caused by the defendants, their servants or agents. However, at all material times, the defendants by their servants or agents had possession and...