Hwa Aik Engineering Pte Ltd v Munshi Mohammad Faiz
| Jurisdiction | England & Wales |
| Judge | Woo Bih Li JAD,Quentin Loh JAD |
| Judgment Date | 17 March 2021 |
| Docket Number | Originating Summons No 5 of 2021 |
| Court | High Court |
[2021] SGHC(A) 1
Appellate Division of the High Court
Woo Bih Li JAD and Quentin Loh JAD
Originating Summons No 5 of 2021
Cephas Yee Xiang, Pang Haoyu SamuelandNg Zhenrong (Aquinas Law Alliance LLP) for the applicant;
Han Hean Juan, Neo Jie Min JamieandWong Ying Joleen (Hoh Law Corporation) for the first respondent;
Raymond Wong and Ang Xue Ying Rachel (RWong Law Corporation) for the second respondent.
IW v IX [2006] 1 SLR(R) 135; [2006] 1 SLR 135 (folld)
Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 862; [1997] 3 SLR 489 (folld)
Manickam Sankar v Selvaraj Madhavan [2012] SGHC 99 (refd)
Munshi Mohammad Faiz v Interpro Construction Pte Ltd [2021] SGHC 26 (refd)
Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074 (refd)
Ng Kim Cheng v Naigai Nitto Singapore Pte Ltd [1991] 1 SLR(R) 270; [1991] SLR 517 (refd)
Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1; [2012] 3 WLR 1319 (refd)
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510 (refd)
Civil Law Act (Cap 43, 1999 Rev Ed) ss 15, 16
Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 16 r 8
Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 29(a), 29A(1)(b), Fifth Schedule para 2
Civil Procedure — Appeals — Leave — Applicant seeking leave to appeal against judge's decision finding it vicariously liable for its employee's tort and disallowing its contribution claim against co-defendant — Whether there was question of importance upon which further argument and decision of higher tribunal would be to public advantage — Section 29A(1)(b) read with para 2 Fifth Schedule Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)
K P Builder Pte Ltd (“D2”) was the main contractor of a construction project in Singapore. D2 engaged Interpro Construction Pte Ltd (“D1”) as a subcontractor to carry out general construction work, including excavation work. D2 also engaged Hwa Aik Engineering Pte Ltd (“D3”) to supply an excavator and a trained and qualified excavator operator. Pursuant to this arrangement, D3 provided D2 with an excavator and Sujan Abdur Razzak Sikder (“Sujan”), D3's employee, as the excavator operator.
On 31 May 2016, Munshi Mohammad Faiz (“the plaintiff”), D1's employee, was injured by an excavator operated by Sujan while the plaintiff was working at the construction project. The plaintiff commenced action in the District Court against D1, D2, and D3. On 16 April 2020, the District Court found D1 and D2, but not D3, vicariously liable to the plaintiff for Sujan's negligence. The plaintiff appealed to the General Division of the High Court, as did D1 and D2.
On 3 February 2021, a judge of the General Division of the High Court (“the Judge”) found D1 and D3 100% liable to the plaintiff. The Judge found that D2 was not liable. The Judge also considered how liability should be apportioned as between D1 and D3. However, as neither D1 nor D3 had brought contribution proceedings against any co-defendant, the Judge decided not to make any order in this regard.
On 10 February 2021, D3 filed the present application by way of an originating summons for leave to appeal in respect of two issues arising from the Judge's decision: (a) whether the court should impose joint and dual vicarious liability for the conduct of a worker where the employer had supplied its employee to another party to work under the instructions of that other party (“Dual Vicarious Liability Issue”); and (b) whether the court was empowered to apportion liability between co-defendants where none of them had made a formal claim for contribution against the other under ss 15 and 16 of the Civil Law Act (Cap 43, 1999 Rev Ed) (the “CLA”) (“Contribution Issue”). D3 submitted that these were issues of public importance upon which further argument and a decision of a higher tribunal would be to the public advantage.
Held, dismissing the application:
(1) As regards the Dual Vicarious Liability Issue, the appropriate test of vicarious liability had been set out in Ng Huat Seng v Munib Mohammad Madni[2017] 2 SLR 1074. It appeared from the thrust of D3's submissions that the substance of its concern was the Judge's application of the test of vicarious liability to the facts of the case. That would not merit an application for leave to appeal to a higher tribunal: at [15] and [24].
(2) The very purpose of the doctrine of vicarious liability was to impose liability on an employer for an employee's tort, even though the employer was not directly at fault for the tort. Therefore, D3's submission that it did not have control over Sujan's actions on the day of the accident not only missed the point but also did not raise any novel issue of public importance: at [22].
(3) As regards the Contribution Issue, D3 had not argued for contribution from D1 or D2 before the Judge. Its argument for its liability to be capped at 15% was vis-à-vis the plaintiff. D3 also did not argue before the Judge that the court had power to make such an order for contribution in the absence of a formal claim for contribution. It was therefore too late to seek such an order under an application for leave to appeal: at [30].
[Observation: Order 16 r 8 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) set out the procedure where a defendant in an action claimed against another party to the action any contribution or indemnity. Under O 16 r 8 of the ROC, the defendant was to issue and serve on the other party a notice containing “a statement of the nature and grounds of his claim” or “the question or issue required to be determined”. Where there was possibly more than one tortfeasor, solicitors should be immediately aware of the possible need to seek contribution from another co-defendant under ss 15 and 16 of the CLA, and then consider taking the step to file a formal claim for contribution: at [31] and [32].
Where a formal claim for contribution had not been made, solicitors should not seek an order for contribution without addressing the question whether the court had the power to do so in the absence of a formal claim for contribution: at [33].]
17 March 2021
Woo Bih Li JAD (delivering the grounds of decision of the court):
1 This is an application by a co-defendant for leave to appeal to the Appellate Division of the High Court against a decision of the General Division of the High Court given in respect of a personal injuries claim. On 9 March 2021, we dismissed the application. Our reasons...
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