Tan Juay Pah v Kimly Construction Pte Ltd

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 02 March 2012
• Date: 02 March 2012
• Docket Number: Civil Appeal No 208 of 2010

[2012] SGCA 17

Court of Appeal

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 208 of 2010

Tan Juay Pah

Plaintiff

and

Kimly Construction Pte Ltd and others

Defendant

Lee Eng Beng SC, Disa Sim and Ang Siok Hoon (Rajah & Tann LLP) for the appellant

Christopher Chuah, Joyce Ng and Napolean Koh (Wong Partnership LLP) for the first respondent

Martin Roderick Edward SC and Mohamed Baiross (Martin & Partners) for the second respondent

Siaw Kheng Boon (Siaw Kheng Boon & Co) for the third respondent

Ramasamy s/o Karuppan Chettiar and Navin Kripalami (Acies Law Corporation) for the fourth respondent.

Animal Concerns Research & Education Society v Tan Boon Kwee [2011] 2 SLR 146 (folld)

Anns v Merton London Borough Council [1978] AC 728 (refd)

Bansal Hemant Govindprasad v Central Bank of India [2003] 2 SLR (R) 33; [2003] 2 SLR 33 (refd)

Birmingham and District Land Co v London and North Western Railway Co (1886) 34 Ch D 261 (refd)

Caparo Industries plc v Dickman [1990] 2 AC 605 (refd)

Checkpoint Fluidic Systems International Ltd v Marine Hub Pte Ltd [2009] SGHC 134 (refd)

Eastern Shipping Co Ltd v Quah Beng Kee [1924] AC 177 (distd)

Harris v Evans [1998] 1 WLR 1285 (refd)

Hygeian Medical Supplies Pte Ltd v Tri-Star Rotary Screen Engraving Works Pte Ltd [1993] 2 SLR (R) 411; [1993] 3 SLR 309 (distd)

Ikumene Singapore Pte Ltd v Leong Chee Leng [1993] 2 SLR (R) 480; [1993] 3 SLR 24 (refd)

Lamb v Camden London Borough Council [1981] QB 625 (refd)

Mc Farlane v Tayside Health Board [2000] 2 AC 59 (refd)

Morgan Crucible Co plc v Hill Samuel & Co Ltd [1991] Ch 295 (refd)

Perrett v Collins [1998] 2 Lloyd's Rep 255 (not folld)

Reeman v Department of Transport [1997] 2 Lloyd's Rep 648 (not folld)

Royal Brompton Hospital NHS Trust v Hammond [2002] 1 WLR 1397 (folld)

Smith v Eric S Bush [1990] 1 AC 831 (refd)

Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR (R) 100; [2007] 4 SLR 100 (folld)

Stovin v Wise [1996] AC 923 (refd)

Swanson v The Queen in right of Canada (1991) 80 DLR (4 th) 741 (not folld)

Welton v North Cornwall District Council [1997] 1 WLR 570 (refd)

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (refd)

Building Control Act (Cap 29, 1999 Rev Ed) ss 10, 10 (5) (b) , 10 (7) -10 (9)

Civil Law Act (Cap 43, 1999 Rev Ed) s 15 (1) (consd) ;s 15

Penal Code (Cap 224, 2008 Rev Ed)

Workplace Safety and Health Act 2006 (Act 7 of 2006)

Workplace Safety and Health Act (Cap 354 A, 2007 Rev Ed) ss 60, 61 (consd) ;ss 7, 7 (3) , 8, 10, 16 (1) (b) , 21, 32, 33, 34, 35, 38, 60 (1) (a) , 60 (1) (b)

Workplace Safety and Health (General Provisions) Regulations (Cap 354 A, Rg 1, 2007 Rev Ed) regs 21 (1) , 21 (15) , 21 (15) (d) , 45

Workplace Safety and Health (General Provisions) (Amendment) Regulations 2009 (S 463/2009)

Civil Liability (Contribution) Act 1978 (c 47) (UK) s 1 (1)

Companies Act 1985 (c 6) (UK) ss 236, 237

Crown Liability Act, RSC 1985, c C-50 (Can) s 8

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...