The Subsidiary Management Corporation No 01 – Strata Title Plan No 4355 v Janaed
| Jurisdiction | England & Wales |
| Judge | Woo Bih Li JAD,Quentin Loh JAD,Chua Lee Ming J |
| Judgment Date | 21 June 2022 |
| Court | High Court |
| Docket Number | Civil Appeals Nos 98 and 99 of 2021 |
[2022] SGHC(A) 26
Woo Bih Li JAD, Quentin Loh JAD and Chua Lee Ming J
Civil Appeals Nos 98 and 99 of 2021
Appellate Division of the High Court
Tort — Negligence — Breach of duty — Subsidiary Management Corporation Strata Title (“MCST”) of commercial building contracting with Contractor [A] to replace switches at chiller — Contractor [A] subcontracting work to Contractor [B] — Contractor [B] deploying worker provided by Contractor [C] — Worker falling from height during inspection of switches on chiller and becoming paralysed — Whether MCST breached duty of care to worker — Standard of care owed to worker by MCST — Whether MCST's breach caused worker's injury — Whether MCST had standing to appeal against decision that Contractor [A] not liable — Whether Contractor [A] breached duty of care to worker
Tort — Negligence — Contributory negligence — Worker falling from height during inspection of switches on chiller and becoming paralysed — Whether worker contributorily negligent — Extent of worker's contributory negligence
Tort — Negligence — Duty of care — Subsidiary Management Corporation Strata Title (“MCST”) of commercial building contracting with Contractor [A] to replace switches at chiller — Contractor [A] subcontracting work to Contractor [B] — Contractor [B] deploying worker provided by Contractor [C] — Worker falling from height during inspection of switches on chiller and becoming paralysed — Applicable test to determine existence of duty of care — Whether MCST owed duty of care to worker — Whether Contractor [A] owed duty of care to worker
Held, dismissing both the appeals:
(1) MCST's reliance on Gursahib Singh v Aquatemp Pte Ltd[2020] SGDC 127 was 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 (which pertained to the static condition of the property) and the general law of negligence (which pertained to dynamic activities done on property and did not apply to an occupier's liability as occupier). The Court of Appeal in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd[2013] 3 SLR 284 had authoritatively decided that the law in Singapore on occupiers' liability should be subsumed under, and dealt with within, the framework of the tort of negligence. In this case, the general principles of the law of negligence, specifically, the test in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency[2007] 4 SLR(R) 100, had to be applied: at [17] and [22] to [25].
(2) The threshold requirement of factual foreseeability was satisfied. It was clearly foreseeable that there was a risk of falling when standing on the top of the chiller to access or work on the flow switches, if preventive steps were not taken: at [26].
(3) There was sufficient legal proximity between MCST and Janaed giving rise to a prima facie duty of care. First, MCST had control over access to the M&E Room and whether works were permitted in the M&E Room, and Janaed was a lawful entrant: at [28] and [30].
(4) Second, MCST owed certain duties to Janaed under the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”) and the Workplace Safety and Health (Work at Heights) Regulations 2013 (the “WH Regulations”). Although the mere existence of a statutory duty was not in itself conclusive of a common law duty of care, it remained a relevant factor in deciding whether there was sufficient legal proximity which gave rise to a prima facie duty of care at common law. The categories of persons falling under Pt IV of the WSHA had primary and heavy responsibility for safety at worksites and their duties under Pt IV of the WSHA were a strong factor in determining whether a duty of care at common law existed. It was unarguable that MCST fell within s 4(c) of the WSHA as an “occupier” of the M&E Room: at [31], [32] and [41] to [43].
(5) It was clear that MCST, as an “occupier”, owed duties under s 11 of the WSHA relating to a safe workplace, and under reg 8 of the WH Regulations relating to safety when a worker was liable to fall more than 2m. Janaed was within the class of persons intended to be protected by the statutory duties imposed on MCST under the WSHA and WH Regulations. MCST's argument that it was akin to homeowners who had engaged contractors to repair their air-conditioning system was erroneous as an occupier of domestic premises (provided the premises were not used to conduct any business or undertaking of the occupier) was exempted from the WSHA: at [47] and [48].
(6) There were no policy considerations that negated the prima facie duty. The court agreed with the Judge that MCST owed Janaed a duty of care: at [49].
(7) There was no reason why MCST's duties under the WSHA and WH Regulations, and the “Code of Practice for Working Safely at Heights” (2nd Rev, 2013) published by the Workplace Safety and Health Council in collaboration with the Ministry of Manpower (the “Code”), should not apply in pitching the standard of care that MCST had to meet: at [51].
(8) The court agreed with the Judge that MCST had breached its duty of care. MCST did not do any of the things that it should have done to discharge its duties under the WSHA and the WH Regulations. MCST submitted that the costs of installing guard-rails or barriers were excessive and/or disproportionate, and that they were impracticable and not part of industry practice, but there was no evidence of industry practice adduced in support of these submissions. In any event, MCST could have provided a mobile elevated work platform (one of the fall prevention systems provided under the Code), which it had since acquired. Further, MCST itself submitted there were alternatives, ie, proper safety equipment and/or a safety harness, but it did nothing to provide or ensure that Zoe/STA provided any such equipment either: at [52] and [54].
(9) The court rejected MCST's argument that it did not breach its duty of care because it could reasonably rely on Zoe as its independent contractor to provide a safe system of work, the requisite equipment and/or supervision. As an occupier under the WSHA, MCST had primary responsibility for safety in the M&E Room and could not avoid liability by sheltering behind its contractor, Zoe: at [53].
(10) The court agreed with the Judge that MCST's breach of its duty of care was the proximate cause of Janaed's fall and injuries. It was a reasonable inference that the use of guard-rails or barriers or a travel restraint system would have prevented Janaed's fall; alternatively, the use of a fall arrest system would have prevented or reduced the severity of Janaed's injuries. Second, MCST could not blame Janaed for his failure to use proper safety equipment; it was MCST's duty to comply with the requirements for effective guard-rails or barriers, or the use of a travel restraint system or a fall arrest system in the first place: at [58] to [60].
(11) It was MCST, not Janaed, that was pursuing a claim of negligence against Zoe on appeal. Zoe did not question MCST's standing to appeal against this finding. In any case, MCST had the necessary standing to appeal because MCST was directly affected by the finding and had a personal interest in seeking its variation. If Zoe were found liable, MCST could have a claim for contribution against Zoe pursuant to s 15 of the Civil Law Act (Cap 43, 1999 Rev Ed): at [61].
(12) The court had some reservations about the Judge's conclusion that there was no factual foreseeability or legal proximity simply because Zoe did not know of the appointment on 8 November 2018. It seemed to the court that Zoe's lack of knowledge as to the specific date of the appointment was not relevant to the questions of factual foreseeability and legal proximity, although that knowledge was relevant to the question of breach. In the court's view, the factual foreseeability threshold was met in this case and it seemed arguable that there was sufficient legal proximity between Zoe and Janaed such as to give rise to a prima facie duty of care. This was based on Zoe's status as a “principal” under s 4(1) of the WSHA and its corresponding duties under ss 14A(1)(b) and 14A(3) of the WSHA: at [63] and [64].
(13) Nevertheless, it was unnecessary for the court to decide whether Zoe did owe a duty of care because it had not been proven that Zoe had breached that duty in any event. While MCST had pleaded in its defence that Zoe had breached ss 14A(1)(b) and 14A(3) of the WSHA, Eugene was not cross-examined by MCST's counsel as to how Zoe was alleged to have breached its duties under these provisions – save for a brief exchange where Eugene testified that Ding had prepared a risk assessment which was subsequently approved by Zoe and submitted to MCST. Eugene's evidence that work could not be carried out without his knowledge and that Ding had to inform him of any arrangement for a site survey was not challenged, nor was he cross-examined as to the steps that Zoe should have taken under these circumstances but omitted to do so. When cross-examining Eugene, MCST's counsel also did not suggest that Zoe was partly responsible for the accident. The court thus affirmed the Judge's dismissal of the claim in negligence against Zoe, albeit for different reasons: at [65] to [69].
(14) The court rejected MCST's submission that Zoe should be held vicariously liable for STA's negligence as this was not part of MCST's pleaded case below: at [70].
(15) Janaed submitted he should not be held contributorily negligent at all as the accident was due to the negligence on the part of MCST and STA in failing to provide the requisite safety equipment. Janaed relied on Zheng Yu Shan v Lian Beng Construction (1988) Pte Ltd[2009] 2 SLR(R) 587...
To continue reading
Request your trial