The Subsidiary Management Corporation No. 01 - Strata Title Plan No. 4355 v Janaed and another and another appeal

• Jurisdiction: Singapore
• Court: High Court Appellate Division (Singapore)
• Judge: Woo Bih Li JAD
• Judgment Date: 21 June 2022
• Neutral Citation: [2022] SGHC(A) 26
• Citation: [2022] SGHC(A) 26
• Docket Number: Civil Appeals Nos 98 of 2021 and 99 of 2021
• Published date: 24 June 2022
• Plaintiff Counsel: Eu Hai Meng Michael and Alicia Chia Si Min (CIVIC Legal LLC)
• Defendant Counsel: Namasivayam Srinivasan and VM Vidthiya (Hoh Law Corporation),Peter Ong Lip Cheng (Peter Ong Law Corporation),The first respondent in AD/CA 99/2021 in person.
• Subject Matter: Tort,Negligence,Breach of duty,Contributory negligence,Duty of care
• Hearing Date: 16 March 2022

Chua Lee Ming J (delivering the judgment of the court): Introduction

These appeals arise from the oral judgment (the “Judgment”) given by the High Court Judge (the “Judge”) in HC/S 1127/2019 (“Suit 1127”). The plaintiff in Suit 1127, Mr Janaed (“Janaed”), was injured after falling 3.7 metres from the top of a chiller (“Chiller 1”) in the mechanical and electrical room (“M&E Room”) at Westgate Tower, Singapore. Westgate Tower is a commercial office building.

In Suit 1127, Janaed sued the following: Newtec Engineering Pte Ltd (“Newtec”); Felizardo Paras Jose (“Ding”) t/a STA Rita Engineering Services (“STA”); Zoe International Pte Ltd (“Zoe”) ; and The Subsidiary Management Corporation No. 01 – Strata Title Plan No. 4355 (“MCST”).

MCST had engaged Zoe to replace two flow switches (the “Works”) at another chiller (“Chiller 2”) in the M&E Room. Zoe subcontracted the Works to STA. Newtec, who was Janaed’s employer, supplied labour (including Janaed) to STA for the Works.

Janaed’s case was that his accident was caused by negligence on the part of Newtec and/or STA and/or Zoe and/or MCST.

Background facts

Zoe was represented by its Project Manager, Mr Eugene Julian (“Eugene”), in its communications with MCST and STA. The Judge found that on 7 November 2018, MCST confirmed its engagement of Zoe for the Works (Judgment at [27]). The Judge further found that Eugene called Ding on 7 November 2018 and informed Ding to liaise with MCST’s Property Executive, Mr Beringuel, Monti Carlo Catarinen (“Monti”) for the Works to be carried out (Judgment at [30]). Ding did so and arranged with Monti for a site survey to be carried out in the morning on 8 November 2018.

On the morning of 8 November 2018, the following persons visited the M&E Room for the site survey: Monti; MCST’s technician, Mr Faizal (“Faizal”); STA’s sole proprietor, Ding; and Janaed. The site survey was to, among other things, assess the location of the flow switches at Chiller 2. After the inspection, Monti, Faizal and Ding left the M&E Room; Janaed stayed behind alone in the M&E Room.

Ding spoke to Monti later that afternoon. Monti told Ding that he could replace the flow switches at Chiller 2 with the same model as the existing switches or alternatively, he could use the model of the switches installed at Chiller 1. Ding then called Janaed and asked him to check the model of the flow switches at Chiller 1.

Janaed used a fireman’s ladder to climb to the top of Chiller 1. He stood on the top of Chiller 1 and used his mobile phone to take photos of one of the switches. He held his mobile phone in one hand and used his other hand to zoom in for a close-up of the flow switch. There were no guard-rails at the top of the chiller and Janaed did not use any safety harness or belt.

Janaed fell from the top of Chiller 1 and landed on the floor. As a result of the fall, Janaed suffered injuries and is now paralysed. Although Janaed could not recall how or why he fell, footage from closed circuit television (“CCTV”) in the M&E Room suggested that he fell in the circumstances mentioned in [8] above and this was not disputed before us.

Decision below and these appeals

The Judge: did not grant interlocutory judgment against Newtec on the ground that Newtec had not entered appearance and it was open to Janaed to enter default judgment against Newtec (which Janaed subsequently did after the Judgment was delivered); found STA and MCST jointly and severally liable to Janaed for negligence; found Janaed 30% contributorily negligent; and found Zoe not liable for negligence.

AD/CA 98 of 2021 (“AD/CA 98”) is MCST’s appeal against Janaed and Zoe. MCST’s case is that (a) it was not liable to Janaed; alternatively, that (b) Zoe caused and/or contributed to the accident, and (c) Janaed was 50% contributorily negligent.

AD/CA 99 of 2021 (“AD/CA 99”) is Janaed’s appeal against STA and MCST. Janaed’s case is that (a) he was not contributorily negligent, and alternatively, that (b) his contributory negligence did not exceed 10%.

Issues before us

These appeals raise the following issues: Whether MCST was liable to Janaed for negligence; Whether Zoe was liable to Janaed for negligence; and Whether Janaed was contributorily negligent, and if so, to what extent.

As stated earlier, the Judge declined to enter interlocutory judgment against Newtec on the ground that it was open to Janaed to enter interlocutory judgment in default of appearance. Janaed has since done so pursuant to O 13 of the Rules of Court (2014 Rev Ed) (the “Rules”). Under the default judgment, Newtec’s liability is not reduced by any contributory negligence on the part of Janaed. It is not clear why the Judge did not in any event grant Janaed judgment against Newtec after the trial. Since Janaed’s action was proceeding against the other defendants in any event, the Judge could and should have entered interlocutory judgment against Newtec after trial, if he found Newtec to be liable, so as to avoid any argument as to whether the Judge’s finding that Janaed was 30% contributorily negligent would also apply to Newtec. However, this is not an issue before us and we say no more about it.

MCST’s liability Duty of care

In Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”), the Court of Appeal established a single test to determine whether a duty of care should be imposed in a claim arising out of negligence (at [73]–[86]). First, there must be factual foreseeability. This refers to reasonable foreseeability from a factual perspective and will almost always be satisfied. Next, there must be sufficient legal proximity between the claimant and defendant. The focus of legal proximity is on the closeness of the relationship between the parties, including physical, circumstantial and causal proximity, supported by the twin criteria of voluntary assumption of responsibility and reliance. If there is factual foreseeability and sufficient legal proximity, a prima facie duty of care arises. The final stage of the analysis is to determine whether there are policy considerations that negate the prima facie duty. Examples of such policy considerations include the presence of a contractual matrix which clearly defines the rights and liabilities of the parties and their relative bargaining positions.

In the present case, the Judge found that it was factually foreseeable that Janaed may suffer injury if he were to carry out any work, to be done on the top of the chillers at such a height without any guard-rails or barriers, or safety equipment and with no one (including any representative from MCST) in attendance (Judgment at [64]). The Judge also found that Janaed’s relationship with MCST was sufficient to find legal proximity and that there were no policy considerations which would negate the prima facie duty of care owed to Janaed (Judgment at [65]).

In its Appellant’s Case, MCST refers to Gursahib Singh v Aquatemp Pte Ltd and others [2020] SGDC 127 (“Gursahib”) and submits that it did not owe Janaed a duty of care because its duty pertained to the physical condition of the premises and did not extend to the operations at the site. We reject MCST’s submission.

In Gursahib, the plaintiff (who was employed by a subcontractor) fell off a ladder while he was working at a construction site and suffered injuries. One of the defendants was the occupier of the premises. The District Judge (“DJ”) noted that the Court of Appeal in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2013] 3 SLR 284 (“See Toh Siew Kee”) had decided that the law on occupiers’ liability had been subsumed into the tort of negligence (at [75]). She then went on to find the occupier not liable to the plaintiff because, in her view, the threshold requirement of factual foreseeability had not been met (at [77]–[81]).

In coming to her conclusion, the DJ referred to the following passage in the High Court’s decision in Neo Siong Chew v Cheng Guan Seng and others [2013] SGHC 93 (“Neo Siong Chew”) at [49]:

An occupier owes a duty of care to prevent injury to an invitee from unusual dangers which the occupier knows or ought to have known about (Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal [1996] 2 SLR(R) 223 at [47] (“Sapri”). Critically, this duty only pertains to the physical condition of the premises and not the operations at the site (Sapri at [47]).

The DJ described the finding in the above passage as “in effect, … a finding on ‘factual foreseeability’” (at [79]). The DJ then applied the distinction between the physical condition of the premises and the operations on the premises to the case before her and found that the plaintiff’s accident was the result of an operation and not a condition of the premises (at [80]).

The plaintiff in Gursahib appealed to the High Court against the District Court’s finding that he was 40% contributorily negligent but did not appeal against the dismissal of his claim against the occupier of the premises.

In our judgment, MCST’s reliance on Gursahib is misplaced. The static-dynamic dichotomy between the condition of the property (static) and the operations carried out on the property (dynamic) was the result of traditional common law rules, which drew a distinction between the law on occupiers’ liability and the general law of negligence. Under these traditional rules, an occupier’s liability pertained to the static condition of the property. The general principles of the law of negligence (which pertained to dynamic activities done on the property) did not apply to an occupier’s liability as occupier: See Toh Siew Kee at [20].

MCST’s submission is reminiscent of the traditional claim based on occupiers’ liability qua occupier. However, the Court of Appeal in See Toh Siew Kee has authoritatively decided that there is no need to preserve the action...