The Management Corporation Strata Title Plan No 1075 v RSP Architects Planners & Engineers (Raglan Squire & Partners F E) (Engineering Construction (Pte) Ltd, Third Party)

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 09 September 1998
• Neutral Citation: [1998] SGHC 302
• Court: High Court (Singapore)
• Published date: 26 February 2013
• Year: 1998
• Plaintiff Counsel: Woo Bih Li, SC with Rodney Keong (Bih Li & Lee)
• Defendant Counsel: Mohan Pillay with Lawrence Tan (Wong Partnership),Philip Jeyaretnam (Helen Yeo & Partners)
• Citation: [1998] SGHC 302

Judgment:

Cur Adv Vult

1. This action arises out of an incident at a condominium development known as Eastern Lagoon II on 20 November 1992 when a panel of bricks and brick tiles at the fifth storey of one of the tower blocks in the condominium fell onto the roof of a unit in another block. The plaintiffs, the management corporation of the condominium, claim that the defendants, a well-known architectural and engineering firm, were negligent in designing and supervising the construction of the condominium and seek damages. The defendants, while denying liability, have brought a third party action against the main contractor for the condominium seeking a contribution/indemnity from them. The third party’s response has been to assert that the defects arose from the defendants’ default and not their own and that in the circumstances of the construction they have no tortious liability.

Background

2. The condominium comprises two separate 19-storey apartment blocks with each block being flanked on each side by three-storey walk-up apartments, maisonettes and townhouse apartments. The tower blocks are known as Virgo and Gemini blocks. Taurus and Capricorn are the two low-rise blocks flanking Virgo block. Libra and Aquarius are the low-rise blocks flanking Gemini block.

3. The condominium was developed by a company called Eastern Lagoon Pte Ltd. They engaged the defendants as the architects and engineers for the project. Work on the design of the condominium started in 1973 and was completed in 1981. Construction commenced in about July 1982 and the condominium was completed in about September 1984. The certificate of fitness for occupation was granted on 30 July 1985 and the plaintiffs were constituted on 5 April 1996.

4. On 20 November 1992, bricks and brick tiles forming part of a gable end wall of Gemini block fell onto unit #03-01 of Libra block causing damage to the roof and contents of that unit. Shortly thereafter, the plaintiffs appointed M/s Murray North (SEA) Pte Ltd (‘Murray North’), a firm of structural engineers and chartered building surveyors, to investigate and report on the damage and potential dangers arising from this incident.

5. The Public Works Department (‘PWD’) was informed in March 1993 of the failure of the wall tiling. In May 1995, the PWD, having come to the conclusion that the condition of the external walls of the two tower blocks was likely to be dangerous, issued an order requiring the plaintiffs to, inter alia, appoint a professional engineer to inspect the condition of the walls and execute such rectification works as such engineer might recommend.

6. At this stage, a brief description of the external walls of the tower blocks may be helpful. These walls were what is known as ‘gable end walls’. Each of these walls consisted of a reinforced concrete frame made up of vertical columns and horizontal beams with the spaces in between the columns and beams filled up with panels of brickwork. Originally the brickwork panel had been designed as a solid wall. Due to a design change necessitated by differences in the vertical alignment of the concrete beams, however, in the event each brickwork panel consisted of a cavity wall which was made up of an inner and an outer skin (or leaf) of brickwork with a cavity being present in between the two skins. The faces of the vertical columns and horizontal beams of the reinforced concrete frame were covered with brick tiles. The overall external appearance of each external wall therefore looked like flush brickwork. Throughout the case, the bricks and brick tiles of the external walls were referred to as "wall cladding".

7. The wall cladding failed at only one location - the fifth storey of one of the gable end walls of Gemini block. The plaintiffs, however, carried out rectification works to all gable end walls of both tower blocks. They also repaired the roof of unit #03-01 Libra block. It is the plaintiffs’ case that although there was only one incident of falling tiles and bricks, the wall cladding had failed throughout the gable end walls and had to be repaired before any further injury occurred. They asserted that the main cause of this failure was the absence of movement joints in the structure of the walls and that the failure was contributed to by the inadequacy of wall ties, the inadequate roughening of the concrete surfaces and the inadequate support of brickwork. The plaintiffs’ case was that these inadequacies arose because the defendants did not design the condominium properly and/or were negligent in their supervision of its construction. The plaintiffs asserted that the defendants’ defaults in these respects were breaches of a duty of care which the defendants owed to the plaintiffs.

8. It was not disputed that the gable end walls constituted common property which the plaintiffs as the management corporation of the condominium had the responsibility to maintain and repair. The defendants’ position was, however, that they owed no duty to the plaintiffs either in respect of the design or in respect of the supervision. This was because the damage sustained by the plaintiffs by reason of the failure of the cladding was purely economic and the defendants did not stand in such a relationship of proximity to the plaintiffs that they could be made responsible for pure economic loss. The defendants’ alternative stand was that the failure of the cladding was due to bad workmanship on the part of the third party, the contractor, and that as they had supervised this work adequately they could not be made responsible for bad workmanship. They said that the absence of movement joints in the cladding had nothing to do with the failure and, in any event, they were not negligent in failing to provide for such joints in the design as they had acted in accordance with local architectural practice at the time of construction in deciding that movement joints were not necessary for the tower blocks of the condominium.

9. The defendants’ claim against the third party is based on their allegation that, at the least, the failure of the cladding was contributed to by bad workmanship for which the third party is responsible and for which the third party could have been sued as a joint tortfeasor by the plaintiffs. Therefore, the third party is liable to indemnify the defendants against their liability to the plaintiffs. The third party’s stand is that the failure was due to the absence of movement joints, not any lapse in their workmanship and, in any event, the tiling works were carried out by independent sub-contractors for whom they have no responsibility in tort.

Did the defendants owe the plaintiffs a duty of care?

10. Although the falling bricks and brick tiles caused physical damage to the roof of Libra block which had to be made good, the main expenses incurred by the plaintiffs were in rectifying the wall cladding which had not fallen. Such expenses were for long regarded by the common law as being pure economic loss for which no action in tort would lie. The duty of care imposed on a tortfeasor by the tort of negligence was limited to a duty to avoid causing injury to persons or physical damage to property. This, however, is no longer the legal position in Singapore.

11. The leading local authority on pure economic loss is RSP Architects Planners & Engineers v Ocean Front Pte Ltd [1996] 1 SLR 113. The case involved a claim by the management corporation of a condominium against its developers who in turn brought third party proceedings against the main contractor, the engineer and the architect. The issue before the Court of Appeal (raised as a preliminary point of law) concerned the existence and extent of the duty of care owed by the developers to the management corporation. The specific question was whether the developers owed the management corporation a duty of care to avoid causing it pure economic loss.

12. The Court of Appeal in deciding Ocean Front embarked on a wide ranging survey of the legal position in various commonwealth jurisdictions with regard to liability in negligence for economic loss. It considered the present English position as established by the House of Lords in Murphy v Brentwood District Council [1990] 2 All ER 908 which is to reject such a liability, as well as the opposite approach adopted by other commonwealth jurisdictions, primarily Australia, and concluded that while there was no single rule or set of rules for determining, first, whether a duty of care might arise in a particular circumstance and second, the scope of that duty, the most appropriate way to do this would be to examine the degree of proximity between the plaintiff and the defendant in each particular case. Having found a sufficient degree of proximity to exist, the court would have to consider whether there would be any policy consideration to negative the imposition of a duty of care. As LP Thean JA who delivered the judgment of the court stated (at pp 138-140):

‘In determining the existence of a duty of care and scope of such duty in different categories of cases, different judges have used different expressions: some say they are doing so as a matter of policy; some justify their approach by common sense, pragmatism, justice and reasonableness ...

Whatever language is used the court is basically involved in a delicate balancing exercise in which consideration is given to all the conflicting claims of the plaintiffs and the defendants as viewed in a wider context of society. As Cooke P said in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at p 294:

... Ultimately the exercise can only be a balancing one and the important object is that all relevant factors be weighed. There is no escape from the truth that, whatever formula be used, the outcome in a grey area case has to be determined by judicial judgment. Formulae can help to organize thinking but they...