Xpress Print Pte Ltd v Monocrafts Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 24 July 2000
• Neutral Citation: [2000] SGCA 37
• Docket Number: Civil Appeal No 202 of 1999
• Date: 24 July 2000
• Year: 2000
• Published date: 19 September 2003
• Plaintiff Counsel: K Shanmugam SC and Edwin Tong (Allen & Gledhill)
• Citation: [2000] SGCA 37
• Defendant Counsel: MP Rai and Gurcharanjit Singh (Cooma & Rai)
• Court: Court of Appeal (Singapore)
• Subject Matter: Easements,Whether adjoining landowner under duty not to excavate land without first securing alternative means of support,Rights of support,Whether distinction between land in natural state and land with building on it valid,Land,Whether right of support extends to building on land,whether duty can be delegated,Whether landowner under duty to use property in manner as not to injure that of another,Whether distinction between registered and unregistered land valid

(delivering the judgment of the court): This is an appeal from a High Court decision by Choo Han Teck JC in respect of a dispute between two neighbouring landowners. In the court below, the facts were agreed.

Facts

The appellants own a plot of land along Kallang Way. On it stands their eight-storey light industrial building named the `Communications Techno Centre`, which was completed in 1996. In one survey report, the building was described as follows:

The structures constituting the Xpress Print Pte Ltd building is (sic) an eight storey high tower block situated within an open compound including open car parks, a driveway of trowelled concrete construction and landscape features with a garden area. The building is constructed predominantly on a structural frame of reinforced concrete with brick infill walls finished in sand and cement render.

The first respondents own a plot of land adjacent to the appellants` plot. Early in 1997, the first respondents decided to construct an industrial building of their own on their land, and engaged the second respondents, a firm of contractors named L & B Engineering (S) Pte Ltd (`the contractors`), to do this. In February 1997, the contractors erected a temporary retaining wall between the two plots of land to hold up the soil on the appellants` plot. They then began excavating on the first respondents` land to build a basement and lay the necessary foundations for the building.

On 10 March 1997, the appellants discovered that there were one-inch cracks along the driveway of their building, caused by subsidence of the soil under the driveway. The driveway was separated from the first respondent`s land by a drain, a grass verge and a fence. The soil underneath the grass verge between the driveway and the first respondents` land had also subsided. The appellants informed the first respondents and the contractors of this immediately.

The next day, 11 March 1997, the cracks on the driveway widened to about five inches and certain water pipes lying underneath the driveway burst, which interrupted the appellants` water supply. The first respondents and the contractors were informed of this and the contractors carried out emergency repairs to the water pipes.

The contractors did not stop excavating, however, and the water pipes on the appellants` land burst again on 15 and 16 March 1997. Again, the contractors had to carry out emergency repairs to the pipes.

All this while, from 10 March 1997 onwards, the parties had been trying to negotiate a solution to the problem. It had been ascertained that the soil subsidence and the consequent damage to the appellants` property had been caused by the inadequacy of the retaining wall that the contractors had erected, and, in particular, the contractors` failure to follow the strutting design provided by the first respondents` engineer. The question was what should be done to remedy this. The possibility of a compromise was scuttled however by the contractors` refusal to stop the excavation works and repair the retaining wall, and by the inability of the parties to agree on the preventive measures that should be taken at the time. Eventually, the appellants complained to the Building Control Division (BCD) of the Public Works Department about the situation and a `stop works order` was issued by the BCD to the first respondents on 10 April 1997.

On or about 22 April 1997, the BCD permitted the works to continue, but only insofar as they pertained to the repair of the retaining wall. On or about 24 May 1997, the repairs to the retaining wall having been completed, the BCD gave permission for the works to continue.

Unfortunately, that was not the end of the appellants` troubles. Further soil subsidence and damage to their property occurred on 11 June 1997. A complaint was made again to the BCD, who immediately issued a further stop works order. This stop works order was lifted a few days later after a professional engineer engaged by the first respondents convinced the BCD that henceforth all excavation works would be carried out in stages and under strict supervision.

On 17 November 1998, the appellants commenced a suit against the first respondents and the contractors for `damages and loss suffered as a result of the negligence, wrongful interference of support and nuisance` on the part of the first and the second respondents. They claimed $574,598.78 for costs incurred so far in dealing with the problem, and other losses yet to be quantified.

Before the trial, the contractors were wound up, and the appellants obtained a default judgment against them for failing to comply with various `unless orders` of the Registrar. The suit therefore proceeded at trial against the first respondents only, and they are the only party defending this appeal.

The decision below

In the court below, the appellants` primary submissions were in respect of the claim under the right of support. The trial judge held that a right of support extends only to what is naturally on the land, and not to buildings or things constructed on the land. He stated in his grounds of decision:

3 The main thrust of the plaintiffs` [appellants`] case lay in the claim based on the wrongful interference with the right of support. However, the law is abundantly clear on this point. The right of support extends only to what is naturally on the land. The only exception, which does not apply in this case, is based on the right equivalent to an easement, that is, an acquired right of support by long usage and reliance. In this case, it is an undisputed fact that the plaintiffs` building was constructed only a year previously. The contrasting rights of adjacent land-owners, namely, the right to do as one pleases on his own land is limited by the right against wrongful interference of support. The plaintiffs have as much right to construct and maintain a building on their own land as the first defendants [first respondents] have to excavate theirs. So long as the excavation is carried out without negligence on the part of the first defendants whether directly or vicariously, and no wrongful act of nuisance was committed by them, they cannot be held responsible for the damage to the plaintiffs` building only by reason of the expectation of a right of support. That right creates a no-fault liability. Thus, it is restricted to apply only to the support of the natural ground and not to objects constructed thereon. The protection of those objects in law will lie only in negligence, nuisance or the rule in Rylands v Fletcher , none of which assist the plaintiffs as can be gleaned from the sparse pleadings of the plaintiffs. Reverting to their case based on the right of support, the law may be summed up in this robust pronouncement of Lord Penzance in Dalton v Angus [1881] 6 App Cas 740 at 804:

`It is the law, I believe I may say without question, that at any time within 20 years after the house is built the owner of the adjacent soil may with perfect legality dig that soil away and allow his neighbour`s house, if supported by it, to fall in ruins to the ground.`

This statement was adopted ... in the Court of Appeal in Lee Quee Siew v Lim Hock Siew [1896] 3 SSLR 80 , at 90.

The trial judge further held that on the facts the claims in negligence and nuisance also failed. He thus dismissed the claim.

The appeal

Before us, counsel for the appellants, Mr Shanmugam SC, advances two arguments. The primary argument is that the principle in Dalton v Angus [1881] 6 App Cas 740 relied on by the trial judge is no longer good law and should be rejected. He submits that the first respondents are liable under common law principles of negligence or nuisance for the damage caused. Mr Shanmugam`s second argument is that the appellants can rely on their right to support of their land notwithstanding that a building has been erected on it, if they can show that the building did not contribute to the subsidence.

We consider first the argument relating to the right of support. Mr Shanmugam contends that the principle in Dalton v Angus relied on by the trial judge is an anachronism. Citing a number of cases from Commonwealth jurisdictions in support, he urges this court to adopt a wider jurisprudential basis for imposing a liability on neighbouring landowners consistent with the realities of an urban city. In his view, there should be a duty of reasonable care on landowners who carry out potentially damaging excavation works. Further, this duty ought to be non-delegable so that the fact that the works have been carried out negligently by an independent contractor, and not by the landowner himself, should offer the latter no excuse in law.

Mr Rai, for the first respondents, submits that the Dalton v Angus principle is too well entrenched to be abrogated by this court. In his view, any change in the law is a matter for Parliament.

It is necessary to begin by considering the seminal case of Dalton v Angus . The facts of that case were briefly these. The defendant landowner had employed a contractor to excavate his land. In carrying out the excavation works, the adjacent land, belonging to the plaintiffs, was deprived of lateral support. The withdrawal of support caused the plaintiffs` factory standing on the land, which had been built some 27 years prior to the commencement of the excavation works, to collapse. The plaintiffs brought an action to recover damages for injury to the factory. At the trial, Lush J directed a verdict for the plaintiffs for the damages claimed, but left them to move for a judgment in order to have the questions of law determined. On motion for judgment, it was argued for the defendants, inter alia, that the plaintiffs` factory was not entitled to the support claimed. On appeal to the Court of Appeal and House of Lords, the primary issue for determination was `whether a right to lateral support from adjoining land could...