Y v National Parks Board and Others
| Jurisdiction | Singapore |
| Judge | Irene Wu Wei Ling |
| Judgment Date | 16 October 2003 |
| Neutral Citation | [2003] SGMC 36 |
| Court | Magistrates' Court (Singapore) |
| Published date | 15 January 2004 |
| Year | 2003 |
| Plaintiff Counsel | Jimmy Yap (Ngaw Tan and Yap) |
| Defendant Counsel | Serene Lim (Lee and Lee),Mahtani (Harpal Mahtani Partnership) |
| Subject Matter | Tort,Occupier’s liability,duty to a licensee in the park, standard of care owed to a child who is not accompanied by a guardian,Independent contractor,employer's duties where working conditions were inherently dangerous or if he had taken it upon himself to exercise a degree of control and actively co-ordinate the independent contractor's activities,Contributory negligence,child plaintiff |
| Citation | [2003] SGMC 36 |
The facts
1 Whilst cycling on a footpath at the Pasir Ris Park on a Sunday afternoon, the plaintiff, a five year old boy, was injured in a collision with a lorry travelling on the same footpath. The occupier of the park, the 1st defendant, had engaged the 2nd defendant to clean the park. The 2nd defendant had subcontracted the cleaning works to the 3rd defendant. The lorry was driven by the 3rd defendant’s servant and or agent.
2 The plaintiff claim was that the three defendants were jointly and severally liable for the accident: as against the 1st defendant, for occupier’s liability and or negligence, against the 3rd defendant, for vicarious liability for the negligence of his servant or agent, and against the 2nd defendant, for vicarious liability for the acts of the 3rd defendant whom the 2nd defendant allegedly controlled and supervised.
Pleadings
Claim against the 1st defendant
3 The 1st defendant is a body corporate established under the National Parks Act Cap 198 A whose functions include managing controlling and administration of the National Parks and nature reserves of Singapore.
4 The plaintiff alleged the 1st defendant had a duty of care to all lawful visitors to the park to ensure that the park was safe to use and that it did not introduce or allow to be introduced potentially dangerous or unsafe contraption or practices to the park.
5 It was in breach of this duty and or negligently that the 1st defendant caused, allowed and or permitted the accident. The particulars alleged were:
(1) Permitting or allowing the 2nd defendant to operate on the park on a Sunday without taking into consideration the expected increase in the policy number of users, especially young children;
(2) Permitting or allowing the 2nd defendant to operate without ensuring that a proper and safe or adequate system of clearing rubbish was implemented;
(3) Permitting or allowing the 2nd defendant to introduce the lorry, instead of a safer and smaller contraption into the park when the designated tracks were only meant for cyclist and pedestrians/ joggers;
(4) Permitting or allowing the 2nd defendant to introduce the lorry without any safety barrier, hoarding or warning signs;
(5) Failing to put up advance warning to visitors that a lorry would be introduced onto the designated tracks of the park on that day at that time;
(6) Failing to take any or any reasonable care to ensure the plaintiff, a young child would be reasonably safe in using the park;
(7) Failing to take any or any reasonable care to prevent injury to the plaintiff from the introduction of a lorry into the park which it knew or ought to have known to be potentially dangerous;
(8) In the circumstances exposing the plaintiff to risk of collision which it knew or ought to have known.
Claim against the 2nd defendant
6 The claim against the 2nd defendant was that as the 3rd defendant was under the supervision and control of the 2nd defendant, the 2nd defendant was vicariously liable for the acts of the 3rd defendant. The 2nd defendant had failed to ensure that the 3rd defendant complied with all safety requirements of the 1st defendant.
Claim against the 3rd Defendant
7 The particulars alleged against the 3rd defendant were:
(1) Failing to stop and allow the plaintiff to pass safely;
(2) Failing to give way to the plaintiff;
(3) Failing to keep proper look out or have sufficient regard for cyclist and children that were or expected to be at the Pasir Ris Park;
(4) Failing to have any control or proper control of the lorry;
(5) Travelling at an excessive speed than permitted at the Pasir Ris Park;
(6) Failing to stop, slow down, swerve so as to avoid the collision;
(7) Failing to put up any or adequate safety barrier whilst operating at Pasir Ris Park;
(8) Failing to put up any or adequate hoarding or warning signs along the path of the lorry at Pasir Ris Park;
(9) Failing to comply with the safety requirement of the 1st defendant in particular failing to install a rotating light on the lorry.
8 Obviously, the particulars referred to negligence on the part of the driver. In his amendment to allege that one Ang Cheng Hock drove the lorry as servant and or agent of the 3rd defendant, the plaintiff omitted to reflect this in the particulars of negligence. As the 3rd defendant was not in court, I did not think it appropriate to consider an amendment to put this right. However, it was clear that no one was for a moment misled by this error; the affidavits filed for the 3rd defendant attest to this.
Defence of the 1st defendant
9 The 1st defendant denied breach of its duties as occupier and negligence. Its pleaded that the main footpath was also a service track intended for use of service vehicles, and that it had exercised all reasonable care in engaging an independent contractor and was not liable for acts of the independent contractor. The 1st defendant also alleged negligence on the part of the infant plaintiff, the 2nd defendant and or the 3rd defendant.
10 In closing, the 1st defendant argued that the accident not caused by the physical condition of the land, but by current operations at the site which, it argued were not unusually dangerous. It also argued that a lorry on a footpath in the park was not a danger unusual to the infant plaintiff.
Defence of the 2nd defendant
11 The 2nd defendant’s defence was that the 2nd defendant had engaged the 3rd defendant as independent contractor. At no time was the 3rd defendant under the supervision or control of the 2nd defendant.
Defence of the 3rd defendant
12 The 3rd defendant alleged contributory negligence on the part of the infant plaintiff as well as the plaintiff’s mother against whom the 3rd defendant subsequently took out third party proceedings which were ultimately abandoned. The 3rd defendant denied it was servant, agent or contractor of 2nd defendant.
13 The 3rd defendant did not appear at the trial. The 3rd defendant solicitors discharged themselves after the first day of trial as they were unable to reach the 3rd defendant. I was given to understand that the 3rd defendant insurers were not defending the action despite the personal injuries as they denied liability on the ground that the accident took place in a park and not a public road.
Reply
14 The plaintiff denied negligence on the part of the third party.
Evidence
15 The evidence, insofar as it is relevant for the purposes of the appeal is set out below.
L
16 L, the father of the plaintiff, testified that on the Sunday 5 December 1999, he and his wife brought their two children to the park at about 1pm. His wife hired two bicycles for the two children. His son had been riding the four wheel bicycle unassisted since 1998. His wife would keep an eye on the children riding their bicycles in the vicinity. They had been to the park many times and they thought the park was safe for children to roam freely as there were no vehicles allowed in the park. He attended to outdoor photography at the park.
17 He felt that the 1st defendant was to blame for the accident. After all, it had control and directed the modus operandi of the cleaning contractor: He agreed that it was reasonable for the 1st defendant to place the refuse in bags and remove the bags from the park. He disagreed however that it was reasonable for the 1st defendant to allow vehicles into the park; The ambulance had not entered the park but had waited at the carpark. He said that the footpath was narrow and a vehicle entering it would find it hard to manoeuvre. According to him, the ambulance did not enter the park as the road was too narrow. The width of the footpath could be seen from Exb P1 and PA1, pg 16.
18 The plaintiff’s father testified that the height of the lorry (Exbs P1 and PA1, pg 17) hindered the driver’s view of the children cycling.
19 He pointed out that after the accident, the 1st defendant switched to using tricycles at the East Coast (Exb PA1, pg 50) to clear rubbish.
20 L said that his son was able to ride a four-wheel bicycle and had been doing so in the year before the accident. He agreed that his son was not able to ride a two-wheel bicycle but at the time of the accident, the son was not riding a two-wheel, but a four-wheel, (Exb P2) which he was able to ride.
21 L pointed out that it was not possible for the parents to run after the bicycle when the child rides the bicycle.
Y
22 Y testified that he had been riding the bicycle (Exb P2) for a year before the accident. On the day in question, his mother was trying to follow him but he was cycling fast and his mother could not keep up with him.
23 The accident occurred at the junction (Exb PA1 pg 16). Y marked on a sketch plan (Exb P5 pg 1) his position ‘XB’ and that of the lorry ‘XL when he first saw the lorry. He was not very clear as to the point of contact with the lorry. At one point, he said it was the front of the lorry at the left side of the mudguard which hit him. Elsewhere, he said it was the left corner or the left side of the lorry near the corner which hit him. Upon impact, the lorry stopped.
24 When he saw the lorry, he was very frightened. When he knew that the lorry and he would meet at the junction, he applied his brakes. He marked his position when he applied his brakes at point ‘Y’ on the sketch plan (Exb P5, pg 1). At that point, he was very close to the lorry and it was too late. He was cycling fast before applying his brakes. There was no slope from the XB to the point of impact. It was level ground. When he was questioned by the police, he had said that he did not brake.
George Tay
25 Mr Tay, the principal park manager since 1 November 1998, gave evidence for the 1st defendant. The 1st defendant had engaged the 2nd defendant to clean the park under a three year contract. He agreed that there was no professional expertise required in the cleansing operations; the 1st defendant could have executed them on its own.
26 Mr Tay’s evidence at one point suggested that very often, rangers imposed...
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