Tort Law

• Date: 01 December 2000
• Published date: 01 December 2000
• Author: KOH KOK WAH LLB (NUS), Advocate & Solicitor (Singapore) TERRY SHEUNG-HUNG KAAN LLB (NUS), LLM (Harv), Advocate & Solicitor (Singapore), Associate Professor, Faculty of Law, National University of Singapore

Breach of statutory duty

The case of Amus bin Pangkong v Jurong Shipyard Limited[2000] 4 SLR 116 involved several claims arising out of an accident at the Jurong Shipyard. The appellant was a general worker employed by Jurong Clavon Pte Ltd (the “second respondent”). He suffered severe injuries as a result of an accidental fall from a height of about 9.5 metres into the centre port tank of a vessel undergoing repairs at the shipyard of Jurong Shipyard Limited (the “first respondent”). The accident took place in the course of blastering work which was subcontracted by the first respondent to the second respondent. The appellant brought claims against the second respondent for negligence as employer and against the first and second respondents for liability as occupiers of the vessel. He also claimed against the first and second respondents for breaches under the Factories Act (Cap 104, 19,98 Ed). Lai Siu Chiu J considered whether ss 33(3) and 33(7) of the Act had been breached. Section 33 provides:

“(3) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to and egress from every place at which any person has at any time to work and every place shall, so far as is reasonably practicable, be made and kept safe for any person working there.

(7) Where any person has to work at a place from which he would be liable to fall a distance of more than 3 metres or into any substance which is likely to cause drowning or asphyxiation, a secure foothold and handhold shall be provided so far as practicable at the place for ensuring his safety.”

Addressing the issue of burden of proof, Lai J followed the decision of the Court of Appeal in Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd and other appeals[1997] 3 SLR 677, where the court had addressed the same issue also in relation to s 33(3) of the Factories Act. The duty was not absolute as it was qualified by the phrase “so far as is reasonably practicable”. However, the burden of proving what is reasonably practicable lies not on the person injured but on the person responsible for maintaining the safety of the workplace.

In the present case, Lai J held that s 33(3) of the Act was breached because the first and second respondents had not adduced sufficient evidence to show that sufficient steps had been taken to keep the platform

safe. There was no evidence to show that the workers performing the blastering work had been adequately supervised on the use of safety equipment, or that safety equipment had in fact been given out on the day of the accident. However, it could not be said that s 33(7) had been breached because the investigation report did not mention a lack of foothold or handhold, or that any foothold or handhold was not secure. (This case is further discussed at pp 294—295 and 298—299 infra.)

Conversion

Relationships between bailors and bailees

In The Endurance I ex Tokai Mam[2000] 3 SLR 191, the High Court considered a claim for conversion of a parcel of marine gas oil (MGO), bunkering equipment and provisions. The MGO, bunkering equipment and provisions had been placed onboard the vessel pursuant to the terms of a charter and sub-charter of the vessel, thus creating a chain of bailment running from the sub-charterers (the plaintiffs and the principal bailors) to the charterers (the sub-bailors) and the owners of the vessel (the defendants and the sub-bailees).

One of the issues before the court was whether a principal bailor was entitled to directly and independently demand delivery of the thing bailed from the sub-bailee. GP Selvam J held (at 200) that, as a rule, the principal bailor was not so entitled: “Otherwise, there will be scramble for possession. There will be conflicting claims and safe dealings will become impossible. In particular, the sub-bailee will be placed in a precarious position”. The court also held that “if there is conversion of the article of bailment, both the [principal] bailor and the sub-bailor have a cause of action for conversion against the sub-bailee”. The rule, however, was that if the sub-bailor recovered the value of the article from the sub-bailee, the sub-bailor would be under an obligation to account to the bailor.

The necessary corollary to this doctrine is the rule that once either the principal bailor or the sub-bailor has recovered the value of the goods bailed from the sub-bailee, the remaining bailor is estopped from conducting any independent claim for the value of the goods bailed. In other words, once the sub-bailee has paid the amount of the goods bailed to either the principal bailor or the sub-bailor, no further claims may be made by any bailor in the chain against him. As the court observed, applying the case of O”Sullivan v Williams[1992] 3 All ER 385, the rule was to prevent a sub-bailee from being put in double jeopardy: There cannot be separate claims made by the bailor and the bailee. … Either the bailor or bailee may sue. and whichever first obtains damages, it is a full satisfaction” (at 202, para 38).

In the present case, the court found that the defendants had sold MGO and the equipment with the knowledge and consent of the charterers and that the charterers had accepted credit of the sale proceeds by

allowing the defendants to set-off the proceeds against moneys owed by a related company of the charterers to a related company of the defendants.

Furthermore, the plaintiffs” agents had by fax made demand for the redelivery of the goods from the charterers. A month later, the plaintiffs” agents issued three invoices to the charterers. Selvam J held that the plaintiffs” claim must fail, on the grounds that the plaintiffs” agents had by issuing invoices to the charterers “relinquished all the rights in respect of the MGO and the equipment by exchanging them for the indebtedness of [the charterers] for the values stated in the invoices” (at 203).

Right to sue

The case of Steelmet Pte Ltd v A PL Co Pte Ltd (Suit 1736/1999, unreported judgment dated 27.11. 2000) touched on the issue of the right of a plaintiff to sue in conversion. The case involved a claim by the seller of goods against the carrier for conversion of the goods. The plaintiff seller asserted that the carrier had released the goods to a third party without production of the original bills of lading. The plaintiff suffered consequential losses and damages as a result of the mis-delivery and alleged that the carriers had wrongfully converted the goods and interfered with the plaintiff”s right to immediate possession of the goods. Judith Prakash J, referring to the applicable principles set out in Clerk & Lindsell on Torts (17^th Ed, 1995), pointed out that to sue for conversion, it is not enough for the plaintiff to be the owner of the goods at the time the suit is commenced; it must also be shown that the plaintiff is the person who had the right to possess the goods at the time they were converted or misdelivered. In the present case, the plaintiff had endorsed the bills of lading in favour of various banks. However, the plaintiff argued that it still had property in the goods and was entitled to possession because the sale of the bills to the banks had been “with recourse”, meaning that the banks could require the plaintiff to repurchase the documents. Prakash J held that the plaintiff had at the most, retained general property rights which were subject to the special property rights of the banks. Such general property rights would not, at law, be sufficient to confer upon the plaintiff the right to sue the carrier in tort for conversion of the goods because the person who had the immediate right to possession of the goods at the time of conversion would have been the banks and not the plaintiff.

Damages

If a solicitor negligently fails to warn his purchaser clients as to the vendor”s lack of title, is the solicitor liable to the purchasers for the loss of the property, or alternatively, for the loss of opportunity to acquire a similar property? These were some of the questions that the Court of Appeal addressed in Seah Chwee Lim practising under the name and style

of Seah Chwee Lim & Associates v Scan Electronics (Singapore) Pte Ltd (Consolidated Civil Appeals 195/1999 and 197/1999, unreported judgment dated 30.6.2000), a case which provides a useful illustration of the principles of remoteness and quantification of damages. The plaintiffs, purchasers of a plot of land at Jalan Besar, sued their solicitor for professional negligence for failing to advise them that the vendor in fact had no title to the property. This was because the vendor did not obtain the letters of administration de bonis non to the estate of the owner of the property, and accordingly the vendor could not pass good title to the plaintiffs. In fact, letters of administration de bonis non had been granted to one Syed Alsagoff as attorney for the beneficiaries of the estate of the owner of the property. Subsequently, Syed Alsagoff instituted proceedings against the vendor and the plaintiffs to set aside the sale of the property. The plaintiffs lost the suit in the High Court and had their appeal dismissed by the Court of Appeal. Thereafter the plaintiffs brought the action against their solicitor, claiming damages which included:

1. (1) loss of the property and the wasted expenses in purchasing it;

2. (2) loss of opportunity to purchase an alternative property similar to the one purchased for the same or similar price;

3. (3) wasted expenditure in the form of tenant compensation and legal costs in applying to the Tenants Compensation Board in order to obtain vacant possession; and

4. (4) costs incurred in the proceedings against Syed Alsagoff.

The Court of Appeal held that the plaintiffs” claim under (1) was misconceived. The court reasoned that if the defendant had not been negligent, ie if he had made proper closure about the vendor”s lack of title in the property, the...