The Law of Tort

1. The Law of Tort

2. TORT The Law of Tort is almost entirely based on case law, although there is legislation which affects certain aspects of tort law. Accordingly, with some exceptions, Singapore tort law relies on and largely follows English case law.

3. Consider this situation: Mr Fish and his wife booked into Suredie Hotel. They requested for a double-bed room for Mr Fish and his wife. When Mrs Fish was showering in the room the facet of the shower head came loose and hit her in the face. There was a sudden gush of hot water that scalded her body. Mrs Fish had to be hospitalized. Mr Fish had lunch in the hotel cafetaria. He ordered some scramble eggs. Owing to lack of hygeine Mr Fish suffered from salmonella poisoning and he too had to be hospitalized. Advise Mr and Mrs Fish as to what they can do.

4. As Sally was entering the ladies restroom – she did not notice that the floor was wet. Janet the cleaner had just cleaned the floor of the restroom and it was wet and slippery. Because of the slippery floor – Sally fell and hit her head against the toilet bowl and had to be sent to the hospital to treat for her head injuries. Sally now wants to sue Janet. Can she do so?

5. What is the case of Donaghue v Stevenson all about? The appellant’s friend bought a bottle of ginger beer for her. The appellant drank it. At the bottom of the bottle, she found a partially decomposed snail. She claimed she suffered gastroenteritis as a result of the presence of the snail in the bottle. She could not sue in contract because she did not buy the ginger beer. She sued in tort. The House of Lords held that the manufacturer of the ginger beer was liable in negligence.

6. Lord Atkin referred to the parable of the Good Samaritan in St Luke’s Gospel and thereafter enunciated his famous ‘Neighbour Test’ “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour…You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

7. Duty of Care Damages DONAGHUE V STEVENSON Negligence Remoteness of damage Breach Of Duty of care

8. If not reasonably foreseeable that the P is harmed by the action or inaction, then there is no duty of care. Duty of Care Negligence Foreseeability may be viewed as the ability to see beforehand the likely effects of a certain action or inaction. The test is objective. Can a person in the D’s shoes be reasonably expected to foresee that his action or inaction will harm the plaintiff?

9. Blyth v Birmingham Waterworks (1856) Negligence The basic test: ‘…the omission to do something which a reasonable man…would do; or doing something which a prudent and reasonable man would not do.’ Breach Of Duty of care

10. Jonathan invited his friends to his house for a party. He told his friends to be careful when they come to his house as there is a deep pothole in the garden. He even put up a sign to indicate the pothole. Steven did not pay attention to Jonathan’s warning fell into the pothole and injured himself badly. In this case Steven cannot sue if Jonathan can show that he has taken all reasonable steps to prevent such injuries from occurring. Example:

11. If Jonathan’s son who is 9 year old invites his friends to the house and Jonathan tells them to be careful of the pothole and puts up a sign to warn them – this might be insufficient as being 9 year old children they may not understand the magnitude of the danger involved and thus if one of them falls, Jonathan may be liable. In this case, he has to take extra precaution to ensure that such injuries does not occur. Example:

12. Level of Skill As a general rule, the level of skill required is that of the reasonable man in the shoes of the defendant. If the defendant is a doctor, then the standard of care expected is that which a reasonably competent doctor will exercise; if the defendant is a pediatrician, then the standard of care expected is that of a reasonably competent pediatrician. It follows that if a defendant follows the accepted practice in his profession, there is a strong likelihood that he has met the standard of care expected of him.

13. Bolton v Stone (1951) Generally if the likelihood of injury to the plaintiff is high, then the court will require a higher standard of care upon the defendant. Correspondingly, if the likelihood of the injury occuring is low or negligible, the standard of care is lower. The plaintiff was struck by a cricket ball while standing on the street outside her house. Her house was located near a cricket field operated by a cricket club represented by the defendant. Normally, batsmen on the field did not hit the cricket ball so hard that the ball would reach her house. Evidence showed that such good batting was rare- it occurred six times in the past 30 years. The House of Lords, held that, although there was a duty of care owed to the Plaintiff, the duty was not breached. The chances of such accidents were too small for the cricket club to take steps to prevent them.

14. Seriousness of Injury Usually, the more serious the likely injury, the higher the standard of care required of the D. 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 P.

15. Paris V Stepney Borough Council (1951) The P, who had only one good eye, was employed by the D. The D failed to provide goggles to the P for his work. While working, the P injured his one good eye and sued his employer. The HL held that the failure to provide goggles may be overlooked in the case of other employees who has two good eyes. However, the failure to provide goggles for the P was a breach of duty because the P only had one good eye.

16. Daborn v Bath Tramways Motor Co. (1946) During the last war in England a number of ambulances on the road had been imported from USA with left hand drive. Evidently the resources were not available to convert them to right hand drive. As electrical indicators did not then exist it was impossible for drivers of these vehicles to indicate that they were turning right. On one such occasion an accident ensured and the driver was sued for negligent driving.

17. Damages Negligence

18. Causation Just as in the law of contract, the damage suffered by the P who is making his claim in negligence must have resulted from the breach of duty by the D. In other words, causation must be established. A common test used to determine causation is the ‘but-for test’.According to this test, if the P would not have suffered damage but for a certain event, then that event is a cause of the damage.

19. Barnett v Chelsea & Kensington Hospital (1969) The P’s husband, a night watchman, was poisoned with what turned out to be arsenic. He was taken to the hospital casualty department but the hospital doctor was negligent and failed to examine him. The doctor told the nurse, by phone, to send the husband home. The husband died at home five hours later. The P sued the hospital. The court held that there was a duty of care owed by the hospital to the husband and this duty was breached. However, the doctor’s negligence did not cause the husband’s death because, even if the correct medical treatment has been given, death would have taken place anyway.

20. What is Remoteness of Damage? • This is when a person suffers injury or damage which is so uncommon that the courts feels that the defendant should not be held responsible. See Wagon Mound case.

21. Owing to his negligence, Sam spilt some chemical on the floor near the doorway. Sally, Jane and Peter came by and not realising the floor was slippery owing to the chemical spill, slipped and fell down. All three of them suffered from broken bones and had to be hospitalised. After, one month, Peter developed a rash on his skin. Test from the hospital showed that this was due to a severe skin allergy cause by the chemical contact. This kind of allergy only affect one in 100 000 people. It so happened that Peter was the unfortunate one. In this case, Sam will be liable for the broken bones suffered by all three but he may not be liable for the skin rash if it is held to be remote and therefore unforeseeable.

22. Re Polemis (1921) The plaintiff owned the ship, Polemis, which was chartered to the D. The D allowed a plank to fall into the hold of the ship. The hold happened to contain some petrol vapour. The vapour ignited because of a spark created by the plank falling into the hold. The ship was subsequently destroyed and the P sued the D. The court held that the presence of the petrol vapour in the hold was not foreseeable. Nevertheless, the D was held liable for the total loss of the ship because the fire was a direct result of the D’s breach of duty in allowing the plank to fall into the hold. This is the direct consequences test.

23. The Wagon Mound The defendant were charterers of a ship, were careless when loading fuel oil into a ship at the plaintiffs wharf and split a large quantity of it on to the water. The oil spread to another part of the plaintiff’s wharf where welding was taking place. Welding sparks ignited the oil and the wharf was burnt. The court held that although it was foreseeable that the oil may foul the wharf, it was unforeseeable that the oil would catch fire and burn the wharf. Damages were therefore not awarded for damage caused by the fire as the damage was too remote.

24. What is the impact of the Wagon Mound decision? The decision in the case of Wagon Mound is that although there may be a negligent action that leads to damage, the damages is not recoverable if it is not reasonably foreseeable that it can happen. This is to ensure that the defendant is not subjected to unnecessary lawsuits.

25. In foreseeing the damage, it is not necessary to foresee the exact damage actually suffered by the P as a result of the D’s breach of duty. It is sufficient if the type or kind of damage is reasonably foreseeable. As to what this encompasses, reliance must be placed on judicial discretion in view of the unique facts of each case.

26. Bradford v Robinson Rentals Ltd (1967) The D sent the P driver on a long drive in an unheated van during very cold weather. As a result, the P suffered frostbite and sued the D in negligence. The court held that the injury from the cold weather was foreseeable, although frostbite was not. However, frostbite is a type of injury, which arises from cold weather. Accordingly, the P was allowed to recover damages for frostbite.

27. The damage suffered by the P may be more severe than that which could reasonably be foreseen by the D. Nevertheless the D could still be liable because the damage is not too remote under what is called the ‘egg-shell skull rule’.

28. Smith v Leech Brain & Co (1962) The P had a pre-malignant cancer on his lips. The D negligently allow the P, in the course of his work, to be burned around his mouth. The burn triggered the P’s cancer and he subsequently died. The P’s estate sued the D in negligence. Lord Parker CJ held that a D has to accept the P as the D finds him. Here, the P has an existing pre-disposition to cancer. Although it was not generally foreseeable that a burn around the mouth could lead to cancer and death, the P’s existing pre-disposition meant that the damage was not too remote. The P’s physical weakness (hence the term ‘egg-shell skull’) exarcebated his injury and the D had to accept this fact.

29. Contributory Negligence

30. Example ofContributory Negligence Sambo was crossing the road when the ‘Red Man’ signal was still on and Rambo was driving his bus at 70 kph when the speed limit was only 40 kph. Rambo crashed his car into Sambo severely injuring him. In this case Rambo was negligent and can be sued by Sambo. But it could also be said that Sambo was contributorily negligent as well. In such a case, Sambo’s claim will probably be reduced. See: Ng Weng Cheong v Soh Oh Loo case.

32. Scott v London & St Katherine Docks (1865) As the P was entering the doorway of the defendant’s warehouse, six sack of sugar fell from a crane onto him. The P sued in negligence. The court held that negligence was established without having to establish the fact that the D breached its duty of care to the P. Res Ipsa was established because the sacks of sugar were under the control of the D and the accident could not, in the ordinary course of things, have occurred without the negligence of the defendant.

33. Teng Ah Kow & Another v Ho Sek Chui & Others (1993) The two appellants were cooks employed by the first two respondents in the respondents’ restaurant. They suffered severe burns on 13 September 1986 when an explosion occurred in the restaurant kitchen because of a defective gas cylinder supplied by the third respondent, Mobil Oil Singapore Pte Ltd. In allowing the appeal, the Singapore Court of Appeal said that res ipsa loquitur is a rule of evidence. The essence of res ipsa is that an event which in the ordinary course of things was more likely than not to have been caused by negligence by itself is evidence of negligence. The effect of res ipsa is to shift the burden of proof to the employers such that they must show they were not negligent. Here the employers could not show that they took reasonable care in providing a safe workplace. Hence they were liable.

34. Defences in Tort

35. GENERAL DEFENCES IN LAW OF TORT • Volenti Non Fit Injuria (Voluntary Assumption of Risk) • Necessity. • Inevitable Accident. [Act of God] • Statutory Authority. • Contributory Negligence

36. What is Vicarious Liability? This doctrine states that in some circumstances the employer is responsible for the tort done by the employee especially in the course of the business.

37. Why is Vicarious Liability important? Usually between the employer and the employee the employer is in a better position to pay off for the damages or injuries caused by his employee. Further, as the employee is under the direct control of the employer, it is the employer’s responsibility to ensure that the employee does the job properly.

38. Is the employer always responsible for every wrongful act of the employee? The employer is only responsible to those wrongful act that the employee does in the course of his employment. The employer is not responsible when the employee does something which is considered to be a frolic of his own. That is it was done without furthering the employer’s business.

39. Is the employer still responsible if he tells the employee not to do a certain wrongful act and the employee still persist in doing it? Yes! As long as the employee is working for the employer, the employer has got the duty to ensure that the employee does not do any wrongful act. The employer must take reasonable step to ensure this and if necessary reprimand and or punish the employee accordingly. Failure to correct the action of the employee is considered as if that the employee had the permission to the wrongful act by the employer.

41. Negligence Negligent Act Negligence Mis-statement General Rule: Injured party can sue the Tortfeasor for the damage Sustained as long as it is Not too remote General Rule: Damages may be claimable if it can be proven that it was because of mis-statement Physical Injury Economic Loss Damages Nervous Shock

42. Physical Injury Damages Economic Loss Injury to person Nervous Shock Pure Economic Loss Consequential Economic Loss Loss of Profit Loss incurred by the direct consequent of the Negligent act or MS Not claimable Claimable

43. CONFIDENTIAL For your private use and without responsibility on the part of the bank or its officials. [in reply to you inquiry…regarding] Easipower Ltd. Respected constituted company, considered good for its ordinary business engagements. Your figures are larger than we are acccustomed to see… Hedley Byrne & Co Ltd v Heller (1964) The P was an advertising agent. Through its bank, it requested from the D, another bank, information on the creditworthiness of a company called Easipower Ltd, one of the D’s banking customers. The P was doing some advertising work for Easipower and wished to know Easipower’s financial standing before continuing with the work. In response to the query made by the P’s bank on behalf of the P, the D wrote:

44. Caparo Industries v Dickman & Others (1990) C was a shareholder in a listed company – Fidelity PLC. C claimed that, in reliance upon negligently audited accounts, it brought additional shares in F and subsequently made a successful takeover of F. F’s accounts were audited by the D, a firm of auditors. The issue was whether the D owed a duty of care to C. The HL held that the D did not owe a duty of care to C as an individual shareholder. The accounts, being statutory accounts, were intended to be used at F general meeting. It was not intended to be used by individual shareholders or potential investors when making investment decisions. Thus, the duty of care is owed to the shareholders in a general meeting, not to individual shareholders. Accordingly, the auditors were not liable to C.