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This is the most important tort law. In our daily life, we inevitably use the term 'negligence' quite loosely, because negligent also means careless, this is the part when we are not careful when we say someone is careless (negligent). Listen to the audio below.
Ch-2.1-Negligence.mp3Tort of negligence came about from the case of Donoghue v Stevenson (1932), basis Lord Atkin's neighbour principle (you may watch the video here and here). Following this case, one is negligence if the following is proved:
If X deems Y negligence, X has to prove that:
Y owes X a duty of care;
the duty of care was breached by Y;
such breach caused X to suffer damage (e.g. injury, monetary loss, etc none criminal damage); and
such damage suffered is not too remote (i.e. is foreseeable)
In 2007, the Singapore Court of Appeal (SGCA) finalised the requirements of 'duty of care' in the case of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [1] to a single test in all negligence claims. Chan Sek Keong CJ (as he then was), at [64] stated that:
[The] search for the applicable test is not restricted to preferring one test over the other; a related question is whether there should be different tests to determine the existence of a duty of care for cases of pure economic loss and cases of physical damage. Why should there be two different tests, and what difference does it make, since the final result the courts wish to achieve is the same, viz, that which is fair and just between the parties without imposing an unacceptable economic cost to the public. [...].
The applicable test in Singapore is based on a single two-stage test premised on proximity and policy considerations which is preceded by a preliminary requirement of factual foreseeability.[2]
Hence, going back to the parties X and Y above, based on Spandeck, Y has to be proven to owe X a duty of care if the following is satisfied:
Duty of care
(i) Preliminary requirement: factual foreseeability
Is it factually foresseable that Y ought to have known that X would suffer damage from his (Y's) carelessness? Phang J in Sunny Metal & Engineering Pte Ltd v ng Khim Ming Eric [3] noted that factual foreseeability will almost always be satisfied. It is like as if it needs not be proven. However, there is case where factual foreseeability is not present: Man Mohan Singh s/o Jothirambal Singh and another v Zurich Insurance (Singapore) Pte Ltd (now knwon as QBE Insurance (Singapore) Pte Ltd and ANoher and Another Appeal (2008).[4]
(ii) Two Stage Single Test
(a) Proximity
The SGCA approved Deane J's analysis in Sutherland Shire Council v Heyman[5] that proximity includes:
Physical
Circumstantial
Causal
The above proximities will be discussed during lecture. Once proximity(ies) is/are established, it/they is/are also satisfied if Y voluntarily assumes responsibilty and X relies on it. This was exemplified by the SGCA[6] - '[Where] A voluntarily assumes responisbility for his acts or omissions towards B, and B relies on it, it is only fair and just that the law should hold A liable for negligence in causing economic loss or phusical damage to B.'
Once the above factual foreseeability and legal proximity are established, a prima facie duty of care arises and next, we will look at the final state of policy consideration.
(b) Policy Consideration
Policy considerations should then be applied to the factual matrix to determine whether or not to negate this duty. Among the relevant policy considerations would be, for example, the presence of a contractual matrix which has clearly defined the rights and liabilities of the parties and the relative bargaining positions of the parties.[7] It can include public policy issue relevant to the merit of the case.
When all the above is established, it is proved that Y owed X a duty of care.
[1][2007] 4 SLR(R) 100.
[2] At [73].
[3] [2007] 1 SLR(R) 853, at [49].
[4] This case will be discussed during lecture.
[5] (1985) 60 ALR 1.
[6] [2007] 4 SLR(R) 100, at [81].
[7] [2007] 4 SLR(R) 100, at [83].
Breach of Duty of Care (Was Y's duty of care breached?)
To determine breach, we need to evaluate if Y fulfilled the standard of care expected from him, being a person who owed the duty to X. If not, Y breached his duty of care. To determine Y' standard of care, we need to see the four (4) factors below: [1]
Level of Skill
Likelihood of Injury
Seriousness of Injury
Cost of Avoiding Risk
[1] For the purpose of this study, we shall only look into four factors.
The above will be discussed in the videos and audios below and students shall take notes.
Breach - Intro
Breach - Intro
Level of skill
Level of skill
Likelihood of injury
Likelihood of injury
Damage - causation
Next, X needs to prove that his suffered damage was due to Y's fulfillment of the above two elements. This element consists of two legal issues of causation of damage and remoteness of damage.
Causation
There are two aspects of causation: causation in fact; and causation in law.[8]
Causation in fact
In Sunny Metal, [9] VK Rajah JA (as he then was), at [52], stated that [c]ausation in fact is concerned with the question of whether the relation between the defendant’s breach of duty and the claimant’s damage is one of cause and effect in accordance with scientific or objective notions of physical sequence. It is concerned with establishing the physical connection between the defendant’s wrong and the claimant’s damage. The universally accepted test in this regard is the “but for” test, [...]. That means, X must prove on a balance of probabilities that Y's breach caused his (X's) loss.[10] by balance of probabilities, X has to prove to or satisfy the court that it is more likely than not that Y's breach caused his (X's) loss.
Causation in law
At [53] in Sunny Metal, Rajah JA continued that: [However], satisfying the “but for” test is by no means a sufficient condition because the all important “causation in law” test must be satisfied as well. The reason for this is that to adopt the “but for” test without limit would lead to absurd results. To illustrate the potential absurdity, we refer to the example provided in McGregor on Damages (Sweet & Maxwell, 17th Ed, 2003) at para 6-008. Consider that a mother gives birth to a son who, when he grows up, commits murder. Adopting the question of factual causation, it is clear that if the mother had not decided to have a child in the first place, the murder would never have happened; the “but for” test is amply satisfied. She is thus a cause in fact of the murder by virtue of a physical sequence that is unbroken by scientific and objective notions of logic. Yet, it is equally true that the law regards the mother as bearing no responsibility for the murder on account of lack of negligence or other tortious activity on her part; it is the law which removes her from being a cause of the murder. This is causation in law. The rationale is to prevent indeterminate liability. That said, causation in law, as Tabulujan et al [11] asserted, takes into account any intervening event - novus actus interveniens.[12]
resulting from causation in fact alone.
[8] Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782.
[9] Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782.
[10] At [07.002], Chapter 7, Tort of Negligence: Damage. The Law of Torts in Singapore, 2nd edition. Gary Chan Kok Yew and Lee Pey Woan. Academy Publishing (2016), Singapore.
[11] Singapore Business Law, 8th Ed. Tabalujan B.S. et al. businesslaw.sg (2018), CommAsia Resources Pte Ltd, Singapore.
[12] This shall be discussed during lecture.
Causation
Causation
Remoteness of damage
Remoteness of damage
Damage - remoteness
Lastly, X needs to prove that his suffered damage was not too remote (foreseeable) after proving the above three elements: (1) duty of care; (2) Breach; and (3) causation available on Y . Using Sunny Metal, [13] [after] causation, we have to ask whether, or to what extent, Y should have to answer for the consequences which his breach of duty has caused. By this stage of enquiry, causation whould already have been established and remoteness merely sets the limits of actionability for damage admittedly caused by Y's wrong.[14]
Remoteness of damage
Remoteness of damage focuses on one test: the foreseeability of the type of damage ("reasonable foreseeability" test).[15] Although there is a second test, called the "direct consequences test" has not been actually disregarded.[16] However, we shall discuss basis on the one test - resaonable foreseeability test because this test is based on the landmark case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) ("Wagon Mound (No 1)")[17] that has superseded the test of "direct consequence" that originated from the case of Re an Arbitration between Polemis and Furness, Wtihy and Co, Ltd.[18]
The foreseeability of the type of damage (or reasonable foreseeability test)
Per Wagon Mound (No 1), the loss is not too remote [because] the type of loss occured was reasonable foreseeable, notwithstanding that the precise extent of the loss was not foreseeable.[19]
What happened in the Wagon Mound (No 1) was that the Defendant (charterer) while bunkering the vessel, spilled fuel oil in the harbour and the oil drifted to the Plaintiff's shipbuilding and shiprepairing wharf. At that time, the Plaintiff was welding at the jetty. The sparks from the welding fell onto some cotton waste or rag on a piece of debris floating on the oil underneath the wharf and the wharf caught fire that seiously damaged it and equipment on it.
Although the fire was the direct consequence of the oil spill, it was not foreseeable that the fuel oil would burn in water. This finding was reached after a wealth of evidence, which included that of a distinguished scientist, Professor Hunter [20] resulting from causation in fact alone.
[13] Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782, at [56].
[14] Ibid.
[15] At [07.095] and [07.098], Chapter 7, Tort of Negligence: Damage. The Law of Torts in Singapore, 2nd edition. Gary Chan Kok Yew and Lee Pey Woan. Academy Publishing (2016), Singapore.
[16] At [18.329], Singapore Business Law, 8th Ed. Tabalujan B.S. et al. businesslaw.sg (2018), CommAsia Resources Pte Ltd, Singapore.
[17] [1961] AC 388.
[18] [1921] 3 KB 560.
[19] At [07.098], Chapter 7, Tort of Negligence: Damage. The Law of Torts in Singapore, 2nd edition. Gary Chan Kok Yew and Lee Pey Woan. Academy Publishing (2016), Singapore.
[20] P. 413, [1961] AC 388.
Next, Y may want to defend himself. We shall discuss defence in a different page. Before you click the button below, do read up chapters 2.2 and 2.3.
2.2 Nuisance and 2.3 Remoteness of damage.
2.2 Nuisance and 2.3 Remoteness of damage.
Do read up on your own and complete the quiz, as applicable.
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