Tan Juay Pah v Kimly Construction Pte Ltd

JurisdictionSingapore
Judgment Date02 March 2012
Date02 March 2012
Docket NumberCivil Appeal No 208 of 2010
CourtCourt of Appeal (Singapore)
Tan Juay Pah
Plaintiff
and
Kimly Construction Pte Ltd and others
Defendant

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 208 of 2010

Court of Appeal

Contract—Contractual terms—Interpretation of contracts—Contract for inspection of tower crane—Whether there was implied contractual right to indemnity

Damages—Contributory negligence—Recovery of contribution from any other person liable in respect of same damage—Main contractor suffering damage due to tower crane collapsing—Subcontractor being liable to main contractor for that damage—Whether authorised examiner (‘AE’) with no contractual duty to main contractor owed common law duty of care to main contractor—Section 15 Civil Law Act (Cap 43, 1999 Rev Ed)

Tort—Breach of statutory duty—Whether AE in discharge of his statutory functions under Workplace Safety and Health Act (Cap 354 A, 2007 Rev Ed) and its relevant regulations (collectively ‘WSH Regime’) owed common law duty of care to main contractor—Whether sufficient legal proximity between statutory actors and claimant—Whether policy considerations negatived prima facie duty of care—Whether imposition of duty of care on AE was consistent with WSH Regime—Workplace Safety and Health Act (Cap 354 A, 2007 Rev Ed)

Tort—Negligence—Duty of care—Whether AE in discharge of his statutory functions under Workplace Safety and Health Act (Cap 354 A, 2007 Rev Ed) and its relevant regulations (collectively ‘WSH Regime’) owed common law duty of care to main contractor—Whether sufficient legal proximity between statutory actors and claimant—Whether policy considerations negatived prima facie duty of care—Whether imposition of duty of care on AE was consistent with WSH Regime—Workplace Safety and Health Act (Cap 354 A, 2007 Rev Ed)

On 22 February 2008, a tower crane (‘the Tower Crane’) on aproject site collapsed, resulting in the deaths of three workers. Following this, the main contractor for the project, Kimly Construction Private Limited (‘Kimly’), sued the subcontractor, Lee Tong Boon trading as Rango Machinery Services (‘Rango’), from whom it had rented the Tower Crane. The subcontract between Rango and Kimly contained an express term that Rango would indemnify Kimly against ‘all claims, damages, costs, expenses, litigation or liabilities made against or incurred by Kimly’arising out of Rango's negligence or breach of the subcontract.

Rango brought in Tan Juay Pah (‘TJP’), the certifying mechanical engineer whom it had engaged to inspect the Tower Crane, as a third party, claiming an indemnity against him in the event that it was found liable to Kimly. TJP then brought two fourth parties (‘the fourth parties’).

TJP was a professional mechanical engineer who was registered as an authorised examiner (‘AE’) under the Workplace Safety and Health Act (Cap 354 A, 2007 Rev Ed) (‘the WSHA’) and its relevant regulations (these regulations and the WSHA will hereafter be collectively referred to as ‘the WSH Regime’). As an AE, TJP was authorised by the Ministry of Manpower (‘the MOM’) to inspect, test and certify lifting machines, including tower cranes, as being safe for use. TJP had carried out three inspections of the Tower Crane. He had certified, inter alia, that the critical parts of the Tower Crane had been checked for surface flaws and that the Tower Crane was of sound material and was safe for use. The fee that Rango paid TJP for his services was just $716. There was no written contract between TJP and Rango.

Following the collapse of the Tower Crane, Matcor Technology & Services Pte Ltd (‘Matcor’) was commissioned by Kimly to investigate the general condition of the respective components of the Tower Crane and determine the presence of any cracks that might have existed prior to the collapse.Matcor's findings, produced in a report, indicated, inter alia,the presence of pre-existing cracks at certain locations of the mast anchors and mast of the Tower Crane.

At the trial, TJP indicated that he wished to make a submission of ‘no case to answer’ on the ground that Rango had not proved its case against him. The trial judge (‘the Judge’) ruled that should TJP's submission of ‘no case to answer’ fail, he could not proceed against the fourth parties and that his claim against them would be dismissed accordingly. TJP then elected to make the submission on the terms set out by the Judge (‘TJP's undertaking vis-à-vis the fourth parties’).

The Judge decided that Kimly succeeded in its claim against Rango. Further, TJP's submission of ‘no case to answer’ failed, with the result that Rango succeeded in its claim against TJP. TJP's claim against the fourth parties was dismissed by virtue of TJP's undertaking vis-à-vis the fourth parties.

Rango did not appeal against the Judge's finding that it was liable to Kimly. TJP appealed against the entirety of the Judge's decision.

There were parallel criminal proceedings under the WSH Regime, which the MOM had initiated against Rango and TJP based on the collapse of the Tower Crane.

Held, allowing the appeal:

(1) TJP had no basis to appeal against the Judge's finding on the point that TJP could not call evidence against the fourth parties in view of TJP's undertaking vis-à-vis the fourth parties: at [36].

(2) The determinative issue on appeal was whether Rango established aprima facielegal basis for TJP to indemnify it in respect of its liability to Kimly, a prima facie case being the threshold as TJP had submitted ‘no case to answer’ in the court below. Even if all the evidential issues were resolved in Rango's favour, Rango's case against TJP would still fail if there was no legal basis to find that TJP owed an obligation to indemnify Rango in respect of its liability to Kimly: at [24].

(3) Rango did not have an express or implied contractual right to an indemnity from TJP. Neither Rango nor TJP even remotely considered the issue of risk allocation between themselves and non-parties to their contract in the event that TJP was found wanting in the discharge of his professional obligations under the WSH Regime: at [7] and [42].

(4) There was no equitable ‘assumed promise’ to indemnify from TJP to Rango. TJP was not in a fiduciary relationship vis-à-vis Rango, and it could not be said that TJP's wrongful conduct was the sole reason for Rango being placed in a position of liabilityvis-à-visKimly, thus it was not necessary in equity to assume a promise on TJP's part to indemnify Rango: at [45].

(5) Under s 15 of the Civil Law Act (Cap 43, 1999 Rev Ed) (‘the Civil Law Act’), Rango would need to show that TJP was liable not only to Rango (whether in tort or in contract) for the damage caused by the Tower Crane's collapse, but also to Kimly for that same damage, ie, Rango needed to show that TJP directly owed Kimly a duty of care at common law: at [49].

(6) To establish a common law duty of care, the general test set out in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency[2007] 4 SLR (R) 100 (‘Spandeck’) had to be fulfilled. This test (‘the Spandeck test’) comprised two limbs. First, it had to be shown that there was sufficient legal proximity between the claimant and the defendant for a duty of care to arise. If such a relationship of proximity was established, a prima facie duty of care arose. Second, the court would then apply policy considerations to the factual matrix of the particular case at hand to determine whether the prima facie duty of care was negated: at [52].

(7) The applicable statutory scheme was relevant to both limbs of the Spandeck test. Under the first limb of the Spandeck test, one of the many factors taken into consideration was the existence of a statutory duty. However, the mere existence of a statutory duty owed by the defendant to the relevant authorities was not in itself conclusive in establishing that the defendant owed a common law duty of care to the plaintiff. Under the second limb of the Spandeck test, the underlying statutory scheme and the parliamentary intention behind the enactment of that scheme would be considered to determine if the prima facie common law duty of care was negated: at [53], [54] and [72].

(8) Nothing in the WSH Regime itself supported either the imposition or the negation of a concurrent common law duty on the part of an AE: at [63] and [65].

(9) The objective behind the enactment of the WSHA was to protect workers and members of the public present at a workplace from injury by deterring risk-taking behaviour on the part of persons who create and have control over safety risks at workplaces. To achieve this objective, a more direct liability regime was put in place under Pt IV of the WSHA. An AE did not fall under any of the categories of persons enumerated in Pt IV of the WSHA. The structure of the WSHA suggested that the liability of an AE under the WSH Regime wassecondary to that of the persons specifically mentioned in Pt IV of the WSHA (inter alia, contractors and subcontractors): at [68].

(10) The first limb of the Spandeck test was not satisfied as there was insufficient legal proximity between an AE (ie,TJP) and the contractor (ie, Kimly). The statutory objective of the WSH Regime was not to protect contractors and/or subcontractors as they had primary responsibility for all aspects of safety at a workplace. The office of the AE was not intended to protect either the contractor and/or the subcontractor from risk, but was instead intended to protect workers and members of the public present at workplaces: at [73].

(11) Even assuming that the first limb of the Spandeck test was satisfied, the second limb of the Spandeck test was not satisfied as there were policy factors which militated against finding that TJP owed a common law duty of care to Kimly. A finding that TJP was liable to indemnify Rango would be tantamount to converting a statutory regime meant to ensure workplace safety into an...

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11 books & journal articles
  • THE PROMISE OF UNIVERSALITY
    • Singapore
    • Singapore Academy of Law Journal No. 2013, December 2013
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