Singapore Finance Ltd v Lim Kah Ngam (S'pore) Pte Ltd (Eugene HL Chan Associates, Third Party)

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 18 April 1984
• Neutral Citation: [1984] SGHC 11
• Docket Number: Suit No 3675 of 1975
• Date: 18 April 1984
• Published date: 19 September 2003
• Year: 1984
• Plaintiff Counsel: KS Chung (Chung & Co)
• Citation: [1984] SGHC 11
• Defendant Counsel: CS Wu (Donaldson & Durkinshaw),P Selvadurai (Rodyk & Davidson)
• Court: High Court (Singapore)
• Subject Matter: Evidence,s 5 Evidence Act (Cap 5),Applicability of common law in Singapore,Extensive cracks in building,Expert evidence,English Law,Conflicting evidence,Causation,Negligence,Whether due to excavation works in neighbouring site by defendants,Reception,Claim for damages,Rule in Acton v Blundell applicable here,Common law,Nuisance,Tort,Neighbouring properties,Court's evaluation,s 5(2)(a) Civil Law Act (Cap 30)

In mid-January 1974 the defendants were excavating their site enclosed within a cofferdam for three basement floors. They were in the course of erecting a 13-storey building. During this period, the owners of buildings in the neighbourhood complained that cracks had appeared in their buildings. Some of the cracks were quite severe. Among the neighbours were the plaintiffs whose building suffered extensive cracks and who now claim damages for loss of support, nuisance as well as negligence against the defendants.

Central to the causes of action is the plaintiffs` allegation that by reason of the excavations, the bottom of the hole thereby formed heaved upwards and the ground upon the sides of the cofferdam moved downwards and laterally towards the excavation hole, having passed underneath the sheet piles surrounding the defendants` land, with the consequence that the surface ground in the immediate vicinity subsided and the buildings standing on them therefore suffered cracks. In short, the plaintiffs alleged that some sort of base heave had occurred at the excavation site which, if proved on a balance of probabilities, must mean that the defendants were liable in law for the withdrawal of support, nuisance and negligence. If negligence is made out, the third party who was the consulting engineer, would be the party primarily responsible and he would have been liable to indemnify the defendants.

On the other hand, the defence of both the defendants and the third party is that the damage caused to the plaintiffs` buildings was attributable to differential consolidation settlement brought about by dewatering of their soil had this settlement was accentuated by the effect of the mixed foundation of the plaintiffs` building and the abnormal `King Tide` which occurred on 9 February 1974. Throughout the trial, the defendants contended and admitted that ground de-watering of the plaintiffs` soil had been caused by the excavation works. But the defendants and the third party maintained that such dewatering, that is the flow of water from the plaintiffs` soil into the excavation hole through indeterminate or undefined channels, was due to the forces of nature and the forces of gravity, and was neither avoidable, given the state of engineering at all material times, nor was it due to any positive acts done by the defendants, their servants or agents. The damage to the Plaintiffs` building, the defendants contended, was therefore damnum sine injuria or damage without legal injury.

Before I turn to the evidence led during the trial which lasted 36 days bearing on the fundamental question of fact as to what had caused the subsidence to the plaintiffs` land, I need to set out the common law position in Singapore concerning the liability of a landowner for the flow of the subterranean water from his neighbour`s land through undefined channels into his land as a result of an excavation.

It seems to me important to dwell on this particular aspect of the common law which affects neighbouring landowners in Singapore in view of the growing incidence of underground civil engineering works, and, in view of the fact that, as far as I am aware, no judgment has been written in Singapore bearing on this branch of the law.

The position at common law in England was first adumbrated in Acton v Blundell (1843) 152 ER 1223. The plaintiff was the owner of a cotton mill. Water supply for the mill was drawn from a well in his property. The defendant in opening a colliery nearby sank two coal pits. Underground water in the plaintiff`s land was drawn through undefined channels to the coal pits, causing the plaintiff`s well to run dry. The learned trial judge directed the jury that the plaintiff had no claim in law against the defendant. On an appeal to the Exchequer Chamber, Tindal CJ confirmed the trial judge`s direction to the jury and said at p 1235:

(this case) falls within (the) principle, which gives to the owner of the soil all that lies beneath his surface; that the land immediately below his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that, if in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbour`s well, this inconvenience to his neighbour falls within the description of damnum absque injuria, which cannot become the ground of an action.

Since this was the first declaration in England of the legal rights and liabilities of and between neighbours inter se where there has been an abstraction of subterranean water, it is useful to take a closer, look at the reasoning of the court. In that case, the plaintiff sought to argue by analogy and contended that the rule of law governing surface streams ought to apply to subterranean streams. That rule provided that an owner could not diminish the quantity nor injure the quality of the water which naturally flowed through his land nor throw back the water without the licence or grant of the owner further up, although the owner had the right to the advantage of the stream flowing in its natural course and to use it for any purposes as he pleased, not inconsistent with a similar right of the owners upstream and downstream: see Mason v Hill 5 B & Ad 1; 110 ER 692. This argument was rejected because the foundation and origin of the rule governing surface streams were inapplicable to underground water.

The court was very much influenced by the undesirable consequences of conferring a legal right on the plaintiff over the flow of subterranean water into his well. The recognition and enforcement of such a right would have unfairly prevented neighbouring owners from draining their land for cultivation, from mining their land for minerals of great value, and, I may add, from carrying out excavations for the construction of underground buildings and structures which is becoming increasingly necessary. The court found support for the soundness of this principle by referring to the similar position under Roman law which, though not forming part of the law of England, was recognized as the fruit of the researches of the most learned men.

I should now refer to the authority of Langbrook Properties Ltd v Surrey County Council [1970] 1 WLR 161 on which the defendants before me had placed great reliance. It was there alleged that by pumping out excavations on land in the vicinity of the plaintiffs` land the defendants had abstracted water percolating beneath the plaintiffs` land and the abstracting of the water had caused settlement of the plaintiffs` buildings. At the trial of a preliminary issue whether, on the facts as pleaded in the statement of claim, the plaintiffs had any cause of action, it was held by Plowman J that the plaintiffs had no cause of action since the defendants were entitled to abstract the water under their land percolating in undefined channels to whatever extent they chose, notwithstanding that this resulted in the abstraction of water percolating under the plaintiffs` land and thereby caused them injury. He held hat any damage suffered by the plaintiffs was damnum sine injuria .

In the course of his judgment, Plowman J reviewed the past English authorities with admirable dexterity and came to the following conclusion at p 178:

The authorities cited on behalf of the defendants in my judgment establish that a man may abstract the water under his land which percolates in undefined channels to whatever extent he pleases, notwithstanding that this may result in the abstraction of water percolating under the land of his neighbour and, thereby, cause him injury. In such circumstances the principle of sic utere tuo ut alienum non laedas (ieuse your own property so as not to injure that of another) does not operate and the damage is damnum sine injuria.

On the facts as alleged in the statement of claim, which Plowman J had to assume as proved, the question arose whether there was any room for the law of nuisance or negligence to operate. In explaining the reasons why he thought there was no room for the law of nuisance or negligence to operate, he said at p 178 and 179:

In the first place, if there were, it seems to me highly probable that the courts would already have said so, and yet I have not been referred to any case in which that was done. In Chasemore v Richards (1859) 7 HL Cas 349 the opportunity was there, since the water authority concerned was found to have had reasonable means of knowing the natural and probable consequences of their excavations, but there was no suggestion in the House of Lords that this was a relevant matter.

Moreover, since it is not actionable to cause damage by the abstraction of underground water, even where this is done maliciously, it would seem illogical that it should be actionable if it were done carelessly. Where there is no duty not to injure for the sake of inflicting injury, there cannot, in my judgment, be a duty to take care not to inflict the same injury.

A claim in nuisance can fare no better, since nuisance involves an unlawful interference with a man`s use or enjoyment of land (see Winfield on Tort , 8th ed, at p 353 and cases there cited) but here the interference was not unlawful, as the authorities referred to show.

On the facts which I am required to assume (which may not be the real facts) this may be thought to be an unsatisfactory result. If indeed the defendants could have avoided damaging the plaintiffs` property by the exercise of reasonable care, it may be asked why they should not be liable for their failure to do so. But so far, at any rate, as a court of first instance is concerned, it must, I think, be taken as settled that the restrictions which the law imposes on a landowner`s freedom of action for the benefit of his...