CHAPTER 10 LAW OF TORT

TORT OF NEGLIGENCE

 One can sue the other under the Law of Tort when the former suffers injuries due to the breach of duty caused
by the latter.
 As a tort is a civil wrong and not a criminal wrong, the Law of Tort seeks to only provide compensation for the
Definition

injured party, and not to punish the tortfeasor.

 To determine whether the injured party can sue under Tort of Negligence, three essential elements must be
established:
- There is a Duty of Care
- There is a breach of that duty
- Damages resulting from the breach

 A Duty of Care is the duty imposed upon a person to take reasonable care for his acts and omissions. Whether a
person owes a duty of care is a question of law.
 Court also decides to whom the duty is owed. Case law shows that this duty can be owed to total strangers.
 To determine whether there is a Duty of Care between the parties, apply the SPANDECK TEST.
This test is for all negligence cases regardless of the kind of loss and includes negligent misstatement.
SPANDECK ENGINEERING (S) PTE LTD V DEFENC E SCIEN CE & TECHNOLO GY AGENCY (DS TA)

SPANDECK TEST

Preliminary Requirement: Factual Forseeability

 Preliminary requirement of reasonable foreseeability from a factual perspective.

 Is established if it can be shown that “the defendant ought to have known that the claimant would suffer
damage from the defendant’s carelessness”
 If it is reasonably foreseeable that defendant’s carelessness would cause plaintiff to suffer injury/damage, there
is factual foreseeability.

First Stage: Proximity

Duty of Care

There is proximity when there is: (either one)

a) Physical Proximity
 In the sense of space and time.
 E.g. Motorist on expressway owes duty of care to road users in the immediate vicinity.
b) Circumstantial / Legal Proximity
 In terms of the relationship between them.
 E.g. Between manufacturer and consumer, teacher and student, employer and employee etc.
c) Causal proximity
 In the closeness or directness of the causal connection or relationship between the particular act or course of
conduct and the loss or injury sustained.
 E.g. Property valuer who issues a valuation report prepared negligently may owe a duty of care to a third party
whom the valuer knows is likely to rely on that report to make an investment decision.
 Upon proximity is established, there is a prima facie duty of care exists between the parties.

Second Stage: Policy

If there are any policy considerations that negate the prima facie duty of care, then there is no duty of care.

 The “Floodgates” argument from Ultramares Corp v Touche (1931):

- If the liability stretches in an indeterminate amount for an indeterminate time to an indeterminate class, there
will be a situation where the “floodgates” are opened and the court will negate the prima facie duty of care.
 Relative bargaining positions of the parties / Contractual relationships which regulates the rights and obligations
of the parties.

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  The basic test to determine whether a duty of care has been breached has been stated succinctly in BLYTH V
BIRMINGHAM WATERWORK S (1856) as “…the omission to do something which a reasonable…would do or doing
something which a prudent and reasonable man would not do”
 The standard of care is the level of care, which is expected to be exhibited in the defendant’s conduct. It follows
that if his conduct does not meet the standard of care, then he is said to have breached his duty of care.
 There are several factors that can be taken into account in determining the standard of care:
(only mention where applicable)

The 4 Factors In Failure To Meet The Required Standard of Care:

1. Level of Skill
Breach of Duty

 The lower the level of skill required, the lower the standard of care owing and the more likely the breach of that
duty. The skill required is that of the reasonable man in the shoes of the defendant.

WELLS V COOPER (1958 ) A DIY householder fitted a new door so insecurely that when P pulled the handle, he
lost his balance, fell and was injured. Held: The householder was required to show a standard of care of a
reasonably competent carpenter and not of a professional carpenter. As D met the standard of a reasonably
competent carpenter, he did not breach that duty of care.

2. The Likelihood of Harm/Injury

 If the likelihood of injury to the plaintiff is high, then the court will require a higher standard of care upon the
defendant. If the likelihood is low, the standard of care is lower.

BOLTON V ST ONE (1951 ) D was playing cricket, the cricket ball flew out of the field across the high fence and
onto the street. P was struck in the head by that ball. D claimed that only 6-10 balls had escaped the filed in the
past 30 years and is an unforeseeable risk. Held: D owed P a duty of care but the likelihood of the harm is so low
that a reasonable man would not have taken further precautions. Hence there is no breach of the duty of care.

3. Seriousness of Injury

 The more serious the likely injury, the higher the standard of care required of the defendant. Thus, not only the
likelihood of injury is taken into account, but also the type of injury which is likely to be suffered by the plaintiff.

PARIS V STEPNEY BORO UGH COUNCIL (1951) An employee has vision in one eye only, yet the employer failed to
provide him with safety goggles. The employee injured his good eye in the course of work. Held: The employer
owed the employee a higher standard of care to the one-eyed employee than a normal employee. As such, the
employer breached the high standard of care required.

4. Cost of Avoiding Risk

 If the risk of harm to the plaintiff is high, the defendant will be expected to take steps to minimize the risk even
if such steps involve substantial cost. If the cost of avoiding the risk is low, then there is a greater expectation
that steps will be taken to avoid the risk in concern.

LATIMER V AEC LTD (19 53) An oily film was formed on the floor of D’s factory when a heavy rainstorm occurred.
D used all of his sawdust to clean the oil but to minimal effect. However, P slipped on the oily surface and the
barrel he was holding crushed his left ankle. Held: D took reasonable steps to minimize the risk. He would not
have breached the standard of care even though he did not totally eliminate the risk.

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 Doctrine of Res Ipsa Loquitor (the event speaks for itself)

 The doctrine can be used by plaintiff to show that defendant has breached the duty of care.
 The breach is so self-evident that the fact the event occurred in itself proves the breach.
 General Rule: Defendant is presumed not negligent unless proven otherwise. Plaintiff bears the burden to
convince the judge that Defendant is negligent.
 Exception: By using the doctrine of Res Ipsa Loquitor, the burden is shifted to the defendant instead. Defendant
will be presumed negligent unless he proves himself otherwise that he has done everything in his capacity.
 Conditions:
- Defendant has the control and management of the “event” that causes the injury
- The accident would not normally happen but for the negligence.
 If both conditions hold, the doctrine can be applied to reverse the burden of proof. If defendant cannot prove
himself not negligent, he would have breached the duty of care.

SCOTT V LONDON & ST KATHE RINE’S DOCKS (1 865) 6 bags of sugar fell from a crane and injured P. Held: D has
control over the crane and the accident would not have happened but for D’s negligence. Hence Res Ipsa
Loquitor is applied and defendant is presumed negligent unless he can prove otherwise.

 After establishing a duty of care and a breach of that duty, the third element required to prove negligence is
that the plaintiff must show that he suffered damage as a result of the defendant’s breach. In Singapore, the
Court of Appeal in SUNNY METAL & ENGINE ERING PTE LT D V NG K HIM MING ERIC (2007) has explained that this
involves an analysis of two related but distinct concepts:
- There is causation-in-fact
- That the damage is not too remote

Causation

 By using the “But-for” test, if the plaintiff would not have suffered a loss but for the breach of duty, there is
causation in fact.
 The loss must have been caused by the breach.
Resulting Damage

BARNET V CHELSEA &KE NSINGTON HOSPITAL (1 969) Which is an arsenic poisoning case. Held: The hospital owed
plaintiff a duty of care and it was breached. However, plaintiff would have died from poisoning even if there is
no breach of duty. Hence the death was not caused by the hospital’s delay.
 Causation-in-law, on the other hand, looks at the question as to which event “will be treated as the cause for
the purpose of attributing legal responsibility”: SUNNY MET AL
 Causation-in-law uses the Latin term novus actus interveniens (a new intervening act) to determine which
event is the cause of the damage.
 In other words, whereas the “but-for test” of causation in fact typically opens up a chain of causes, causation-in-
law limits them. The new intervening act must be the one cause that is the most blatant and unreasonable.

Remoteness
Looks at the question of “whether, or to what extent, the defendant should have to answer for the consequences
which his breach of duty has caused.” SUNNY METAL

 Remoteness is used to limit the scope of damage which may be claimed against a defendant.
“By this stage of the enquiry, causation would already have been established and remoteness merely sets the
limits of actionability for damage admittedly caused by the defendant’s wrong.”

 In the Tort of Negligence, there are two tests of remoteness which have been used:
(a) Direct Consequence Test: Whether the damage is a direct result of the defendant’s breach of duty
RE POLEMIS & FURNESS , WITHY & CO (192 1) Court held that the presence of petrol vapor in the hold was not
foreseeable. However, the defendant was held liable for the total loss of the ship because the defendant’s
breach of duty in allowing the plank to fall into the hold.

(b) Reasonably Forseeability Test: Whether the damage or loss is reasonably foreseeable.
THE WAGON MOUND (NO 1) (1 961) It was held that the fire was a direct consequence of the defendant’s breach
of duty. However, it was unforeseeable that the fuel oil would burn in water. Damage was not reasonably
foreseeable. Thus, the plaintiff’s claim failed.
o It is not necessary to foresee the exact damage. It is sufficient if the type or kind of damage is
reasonably foreseeable. BRADFORD V ROBINSON RENTALS LTD (1967)
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  The “eggshell skull” rule: As long as defendant can reasonably foresee the type of injury, he will be liable for the
full extent, even if he cannot foresee the full extent of the injury. SMITH V LEECH BR AIN (1962) P had a pre-
malignant cancer on his lips. D negligently allowed P to be injured in the course of his work. The injury triggered
his cancer and P died as a result. Held: It is reasonably foreseeable that P would be injured if he had no cancer.
Even if P’s physical weakness exacerbated his injury, D has to accept P as D finds him.

DEFENCES TO TORT OF NEGLIGENCE

Volenti Non Fit

 If the plaintiff has full knowledge and appreciation of the risk and consents to the risk which led to the tort, the
defendant can raise the defence of volenti non fit injuria. (a man consents cannot be considered an injury)
Injuria

- If passed, the defendant is not liable for the injury.

- Examples include engaging in an aggressive contact body sport. The plaintiff has impliedly accepted the
risks associated with the sport when he participates.
 Volenti is a complete defence.
Contributory

 Under s3(1) of the Contributory Negligence and Personal Injuries Act, if defendant can show that plaintiff’s
Negligence

injury was the result of partly plaintiff’s own fault as well, the damages recovered can be reduced to the amount
the court thinks is equitable due to defendant’s fault.
 Contributory negligence is a partial defence.

 Disclaimers are used to limit or exclude liability in the tort of negligence.

Disclaimer

 Like ECs, the disclaimer must be reasonable under the UCTA in order to be effective. (refer to exemption
clauses.)
 Sample Disclaimer

PSYCHIATRIC HARM

 Cases when a plaintiff suffers anxiety, distress or psychiatric harm after seeing a scenario or witnessing or
Psychiatric Harm

hearing an incident which was negligently caused by a defendant.

 Depends on whether the court is willing to find that a defendant owes a duty of care to the plaintiff.
 The courts are generally reluctant to allow compensation in such cases, partly because of difficulties in
determining objectively that the plaintiff suffers from psychiatric harm and assessing the claim generally.
 Must pass the Spandeck Test.
Grief, Sorrow,

 If the plaintiff suffers no recognizable psychiatric condition but merely grief or sorrow, he would not be able to
Suffering

claim any damages under the tort of negligence.

 Claims for grief or sorrow are generally not recoverable.
Primary
Victim

 Where a defendant’s negligent act or omission caused plaintiff to personally suffer psychiatric harm as a result
of immediate fear of injury, he is said to be a primary victim.

 If the plaintiff is the one who suffers psychiatric harm as a result of injury to others, he is said to be a secondary
Secondary Victim

victim.
 PANG KOI FA V LIM DJOE PHIN G (1993) Plaintiff watches daughter suffer and die. Suffered mental trauma.
 In determining whether there is a legal proximity, we must consider all 3 elements stated in
MCLOUGHLIN V O’BRIAN (198 3) : (if all 3 are true, there is legal proximity.)
- There is a close tie of love and affection with the primary victim
- There is a close proximity in time and place to the scene of the accident
- Means by which the shock was caused –aural and visual perception in the immediate aftermath
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OTHER TORTS

 Statement published which tends to lower a person’s reputation in the estimation of right thinking members of
society.
- Oral defamatory statements = slander
Tort of Defamation

- Written defamatory statements = libel [piece of writing that contains bad/false things about a person]

 Elements of tort of Defamation:

1. It must be Published: Statement made or sent to any person other than the subject of statement
2. It must be Untrue
3. It must have the Effect of lowering the person’s reputation generally

 Remedies: Damages and injunction

 Tortfeasor passes off goods/services as those of another, falsely promotes his own goods/services as having same
origin/quality as the other or somehow being associated with the other.
 According to the case law in RECKITT & COLEMAN PR ODUCTS V BORDEN INC (1990) , to establish passing off, plaintiff
has to prove 3 elements:
1. He must establish there is goodwill or reputation attached to his business
- Attachment between trader & customer which brings in business
- Goodwill is intangible but it can be associated in the minds of customers in the brand name, logo,
trademark or appearance of a product
2. There must have been a misrepresentation by the tortfeasor
Tort of Passing Off

- Leads public to believe that the goods or services offered by him are the same as those offered by the
plaintiff
3. Plaintiff must suffer or is likely to suffer loss of goodwill. (Reputation)

CDL HOTELS IN TERNATI ONAL LTD V PONTIAC M ARINA PTE LT D (1998 ) Goodwill established and damages awarded. Held
that there was goodwill generated by the advertisement, there is real risk of misrepresentation because of their visual
and phonetic similarities (Millenia v Millennium), and strong likelihood of their goodwill since their Ritz-Carlton was a 5
star hotel and most of CDL hotels were only 4 star.

LIFESTYLE 1 .99 PTE LTD V $1. 99 L TD (ONE.99 SHOP) (2000) Court found that ONE.99 was descriptive and thus faced
hurdles in becoming distinctive. Furthermore, the prefix ‘Lifestyle’ differentiated Lifestyle’s shops from the ONE.99
shops. Hence, to maintain the injunction was unfair since it implied that ONE.99 could claim a monopoly on the concept
of selling items at $1.99.

 If Tort of Passing off is established, Injunction, Damages or Account for profits may be obtained.
rd
 Tortfeasor induces person (employee) to breach a contract with 3 party (employer)
Tort of Inducing Breach of

Example:
- Manufacturer A  contracted with  Agent.
Contract

- Manufacturer B induces Agent to breach contract with Manufacturer A.

- Agent eventually did.
- Manufacturer A can sue Manufacturer B in Tort.
- Manufacturer A can also sue Agent for breach of contract under law of contract.

Not common as contracts have termination clauses that enables either party to end contract upon meeting certain
conditions. So, there will be a breach only when contract termination is not in accordance with the clause.
Vicarious Liability

1) Employer is variously liable for torts committed by employee if acting within scope of authority or conditions of
employment.

2) Employer is vicariously liable only if has strict control of employee’s conduct in performance of work.
- E.g. Employer not liable for torts of independent contractor.
- Plaintiff prefer to sue employer cause they got more money than employee.

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 Duty of Care: “Special Relationship” – Plaintiff could “reasonably rely on defendant’s judgement” (similar to Spandeck)
Factors Determining The Existence Of A Special Relationship:
1. Advice paid for
 Payment good evidence that advice being relied on and advisor knows it  Duty of care exists.

HEDLEY BYRNE & CO LT D V HE LLER & PARTNER S LTD (1964) Plaintiffs relied on the references and incurred huge losses.
Held that if not for the disclaimer, defendant will be liable since there was a duty of care owed due to special relations.

2. Advisor in business of giving advice (Given by a professional or by a person who held himself as having knowledge or
skill in that particular matter)
 If not in line of business, can still be liable if reasonable for advisee to rely on adviser’s skill, judgment and the
advice given. (Proximity)
ESSO PETROLEUM & CO LTD V MARDON (1976) Esso liable even though not in business of giving advice

3. Advisee’s reliance on advice reasonable?

 The adviser knows/ought to know the advisee is likely to rely upon his advice and it is reasonable for advisee to
do so  Duty of care exists. (Reasonable Foreseeability)
 However, even if the adviser knows that the advisee will rely upon his advice but if it is reasonable for the
adviser to believe that the advisee will not solely rely upon his advice then the adviser will not be liable.
JAMES MCHAUGHTON V H ICKS ANDERSON (1991)

 CAPARO INDUSTRIES PL C V DICKMAN (1990) The accounts the defendants prepared were for the shareholders
collectively and not for investors or individual shareholders. No proximity. The policy consideration behind the
decision was of course that if the accountants were held to have owed a duty of care to all investors and
shareholders, that would expose them to unlimited liability.
 If advice is given with the purpose or knowledge that it may be relied upon by a third party, then the adviser may
owe a duty of care to the third party. MORGAN CRUCIBL E CO PLC V HILL SAMU EL & CO LT D & ORS(19 91)
 UNITED PROJECT CONSU LTANT S PTE LTD V LEO NG KWOK ON N (2005) Held that there was a duty of care as he should
have foreseen such damages will result from this and since he was hired as a tax agent, he had assumed some
responsibility.
Negligence Misstatements

4. Disclaimer? (Exclusion Clause)

 To limit or exclude liability; and Must satisfy the UCTA, if not then not effective  Duty of care exists.

SMITH V ERIC S BUSH (1990) Defendants held liable for their negligent misstatements. Furthermore the disclaimer they
had was subjected to the UCTA, and thus invalid. They owed a duty of care.

Breach of Duty of Care:

1. In respect of professional advisers, the standard of care used in determining whether a breach of duty has occurred
is that of a reasonably competent fellow professional in the same field:
 “Fair, reasonable and competent degree of skill” LANPHIER V PHIPOS (1 838)
 “An act of gross negligence such as could not have been committed by any other ordinarily informed member
of the profession” COOK V FALCONER’S RE PRESENTATIVE (1850)
 JSI SHIPPING (S) PTE LTD V TE OFOONGWONGLC LOONG (200 7 ) Held that auditor’s duty include the obligation to
verify and to be sensitive to the possibility of fraud.

2. To minimise claims for Breach of Duty of Care:

 Ensure highest order of standard of professional practice is adopted
 Follow standards set by professional bodies or leading practitioners in that field
 If not followed, clear breach of d.o.c
 If followed, can still be breach of d.o.c. if individual cases require higher standards.
 Use disclaimers subject to UTCA. SMITH V ERIC S BUSH( 198 9) Held that the disclaimer was not reasonable and
thus liable for damages
 Purchase professional indemnity insurance

Resulting Damage: Same as to establish resulting damages for tort of negligence.

1. Easy to show causation: Reliance

2. Pure economic loss is recoverable

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 DIFFERENCE BETWEEN NEGLIGENT MISSTATEMENT & NEGLIGENT MISREPRESENTATION

Negligent Misstatement Negligent Misrepresentation

- Hedley Byrne and Spandeck - Section 2, Misrepresentation Act
- Requires special relationship (Proximity) - No special relationship required
- Contract not required - Must induce a contract
- Remedy: Damages - Remedy: Rescission & Damages

PURE ECONOMIC LOSS

 Refers to financial loss which is not associated with any damage to plaintiff’s body or property.

SPARTAN STEEL & ALLO YS LTD V MARTIN & CO (CONTRACTOR S) LTD (1 973) . Court held that the plaintiff could sue for the
loss of those materials [physical loss] and for the loss of profits for those materials that were damaged [consequential
economic loss]. However, they could not sue for the loss of profits due to the lack of power [pure economic loss].

 Loss flowing from physical damage  recoverable.

 Pure economic loss  generally not recoverable.
Exception:
Pure Economic Loss

RSP ARCHITECTS PLANN ERS & ENGINEERS (RAG LAN SQUIRE & PARTNER S) V MCST PLAN N O 10 75 (1999)
[Holistic Approach]
 If pure economic loss NOT accompanied by physical injury or property damage was allowed, it could lead to
unlimited liability.
 Thus, restrictive approach adopted, but 2 qualifications:
 PEL recoverable for negligent misstatement
 PEL recoverable in some countries (S’pore)

RSP ARCHITECTS PLANN ERS & ENGINEERS V OC EAN FRONT P TE LTD (1 996)
The court held that:
a) developers owed a duty of care
b) very close proximity between them
c) not a case of unlimited liability

RSP ARCHITECTS PLANN ERS & ENGINEERS (RAG LAN SQUIRE & PARTNER S) V MCST PLAN N O 10 75 (1999)
Close proximity. Management relied on skill and judgment, defective buildings different from consumer goods.

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