Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 03 May 2006
• Neutral Citation: [2006] SGHC 73
• Docket Number: Suit No 209 of 2005
• Date: 03 May 2006
• Published date: 04 May 2006
• Year: 2006
• Plaintiff Counsel: Richard Kuek and Stephanie Wong (Gurbani & Co)
• Citation: [2006] SGHC 73
• Defendant Counsel: Anparasan s/o Kamachi and Sharifa Nadia Almenoar (KhattarWong)
• Court: High Court (Singapore)
• Subject Matter: Whether defendant's use of land amounting to non-natural use,Containers stored on defendant's land falling into plaintiff's adjoining land and causing damage to plaintiff's property during thunderstorm,Tort,Whether plaintiff may reasonably be expected to explain collapse of containers that caused it to suffer damage,Whether defendant breaching duty of care,Duty of care,Rule in rylands v fletcher,Neighbouring properties,Negligence,Whether collapse of containers into plaintiff's land amounting to escape of containers from defendant's land,Nuisance,Whether foreseeable damage and injury might be caused should containers fall into plaintiff's land,Whether defendant owing plaintiff duty of care to ensure containers did not fall into plaintiff's land and cause damage to plaintiff's property,Whether defence of force majeure applicable,Res ipsa loquitur,Whether defendant's use of land unreasonable,Whether defendant's stacking of containers unsafe

3 May 2006 Judgment reserved.

Choo Han Teck J:

1 The plaintiff and the defendant occupied adjoining premises at Gul Circle which belonged to the Jurong Town Corporation. The former is a company that manufactured adhesive tapes, and the latter operated a container storage depot and had been occupying the said premises as such since 1977.

2 The defendant’s business required it to repair and store containers. There are two sizes of containers, internationally known as 20-foot and 40-foot containers respectively. The defendant dealt only with the 40-foot ones. The full measurements of a 40-foot container are as follows. Each has a length of 12.2m, a width of 2.4m, and a height of 2.9m. An empty container weighed about 3.8 tonnes. The defendant’s containers were stacked one on top of the other, up to seven containers high. Each of these will be referred to as a column. There were many columns stacked nose-to-nose (that is, width-to-width). Thus, depending on the space available, a row of these containers might have as many as ten columns. The defendant also stacked several rows side-by-side, thus creating a huge mono-block of containers. The two highest rows were stacked up to seven tiers. Those were the rows nearest the perimeter fence separating the plaintiff and defendant’s properties. The third row from the fence was five tiers high. The fourth row was also five tiers high. About 12.45pm on 14 October 2002, several containers from the mono-block fell across the perimeter fence (also referred to at trial as “the boundary fence”) between the parties’ premises. This was a metal chain-link fence measuring two metres. Stacking containers in the mono-block formation described was not an unusual practice. It was the standard practice in all container depots. Some circumstances differ, however, from depot to depot, and it was in regard to such differences that counsel took issue, namely, as to whether the defendant in this case ought to be made culpable.

3 The fallen containers caused damage to the plaintiff’s property and consequently, the plaintiff commenced this action against the defendant in an action founded on negligence, nuisance as well as under the rule in Rylands v Fletcher (1868) LR 3 HL 330. The plaintiff also relied on the doctrine of res ipsa loquitur. The defendant denied each of the claims, and in addition, pleaded the defence of “act of God”. Some theists might not attribute such destructive phenomena to him (or her), and atheists might regard this as an inappropriately named defence. In dealing with this part of counsel’s submissions I shall, therefore, be using the more neutral sounding term “force majeure” to denote the defence based on an uncontrollable event, instead of “act of God”.

4 The containers along the perimeter fence were placed parallel to, and about 1.2m from, the fence. That is to say that the length of the container (the long side) was parallel to the fence as opposed to laying the containers perpendicular to the perimeter fence, that is, with the width (the shorter front and back) of the container against the fence. According to Mr Wang Chi Tung, the plaintiff’s managing director, the perimeter fence was about 2m high. With each container about 2.9m (about 9.5ft) high, a column of seven containers would have reached a height of 18.9m (about 60ft). There was no dispute that about the time the containers fell onto the plaintiff’s premises, there was a heavy thunderstorm in the area. Mr Tan Yong Piu, the head of Climatology and Marine Meteorological Services Division of the National Environment Agency, was called to testify on behalf of the plaintiff. His evidence was that on 14 October 2002 there were “moderate to heavy showers with occasional lightning/thunder between 1230 hours and 1330 hours” around the Gul Drive area. The wind speed was noted as “variable 15-25 km/h” but “winds may have occasionally gust to 60km/h or more during the storm”. Mr Tan was a conservative witness who did not venture to state more than his data allowed him. His records showed that gusts of more than 90km/h occurred only twice in the previous four years. I shall revert to the evidence of wind speed by the other witnesses shortly.

5 The word nuisance and the tort of nuisance share strong common elements in annoyance and inconvenience caused by one neighbour to another. However, they have important differences that distinguish tortious and non-tortious acts of nuisance. Some practices that one might find to be annoying might not be actionable in nuisance as a tort. A man cannot sue his neighbour because he finds his poor piano rendition of Bach to be annoying. On the other hand, a tree branch overhanging the neighbouring land can be held to be a nuisance in tort. The prefatorial passage from Clerk & Lindsell on Torts (The Common Law Library) (Anthony M Dugdale & Michael A Jones, eds) (Sweet & Maxwell, 19^th Ed, 2006) (“Clerk & Lindsell”) at para 20-01 is a useful reminder of the difficulties involved in determining nuisance in tort:

The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. In common parlance, stenches and smoke and a variety of different things may amount to a nuisance in fact but whether they are actionable as the tort of nuisance will depend upon a variety of considerations and a balancing of conflicting interests. An actionable nuisance is incapable of definition[.]

It is no wonder that some cases in the law of nuisance are often found to be irreconcilable with others. Fine examples of such might be found in cases involving the question of abatement. Although the courts in modern times have shown a greater inclination towards recognising an occupier’s duty to abstain from or abate sources of danger or annoyance to his neighbours, the circumstances of each individual case can be so diverse that it would be difficult to draw any general consensus as to whether an actionable nuisance had arisen. It would be relevant to consider the type of premises as well as the user of it. What might be an act of actionable nuisance in a residential property might not be in an industrial one. One other general problem concerning the tort of nuisance lies in the occasional trespass into its territory by the tort of negligence and, it is sometimes claimed, the rule in Rylands v Fletcher. In Allan William Goldman v Rupert William Edeson Hargrave [1967] 1 AC 645 at 657, Lord Wilberforce observed that in some cases of nuisance negligence plays no part, whereas in others it can play the decisive part.

6 In the present case, what else might a container depot do if not to store containers? If a container depot were to store containers, could it not store them by stacking them? The defendant leased its premises for use as a depot and was given the requisite approval to do so. Its premises were within an industrial zone and its neighbours including the plaintiff also leased their premises for industrial and commercial purposes. The only live issue was how high the containers should reasonably be stacked. What would be reasonable is a question that ought, naturally, take into account what is a safe height for them. I shall revert to this issue shortly. Thus, I do not think that the mere storage of containers in the premises should be regarded as an unreasonable use of the premises for the purposes of ascertaining whether there was liability under the tort of nuisance. In the broad context of nuisance, the storage of containers itself would attract no liability. I am of the opinion that, assuming for the moment that there was no fault of the defendant, the collapse of the containers into the plaintiff’s premises, in itself, attracted no liability in nuisance. Liability would attach only if the stacking of the containers as done by the defendant was unsafe in the circumstances. In this regard, the point will be considered below together with the plaintiff’s claim in negligence.

7 I next turn to the question of the applicability of the rule in Rylands v Fletcher. There is no standard definition of this rule, so I shall refer to the judgment of Blackburn J in Fletcher v Rylands (1866) LR 1 Exch 265 at 279. The relevant passage from the locus classicus reads:

We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is primâ facie answerable for all the damage which is the natural consequence of its escape.

The element of a “non-natural use” of the land added to the rule by Lord Cairns ([3] supra at 338–340) had at various times been adopted as a necessary part of the rule, and at other times, an undue narrowing of the scope of the rule. Counsel for the defendant, Mr Anparasan, submitted that the storage of containers in on industrial property does not come within the ambit of “non-natural user” in the Rylands v Fletcher sense. That by itself was not a sufficient exclusion. It will be recalled that in Hale v Jennings Brothers [1938] 1 All ER 579, fixing a “chair-o-plane” on a fair ground was considered a non-natural user. And also, in Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 (“Cambridge Water”) at 309, Lord Goff of Chieveley formed the view that “the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use”. In that case, chlorinated solvent from the defendant’s leather factory seeped into the ground and contaminated water in the plaintiff’s borehole 1.3 miles away. However, the defendant was found not liable under the rule in Rylands v Fletcher because foreseeability of the harm of the relevant type was a prerequisite to recovery, and that he had failed to prove. Ultimately, avoiding extreme circumstances, each case depended on its facts. I am inclined in this case, to...