ACRES v Tan Boon Kwee

Last updated

ACRES v Tan Boon Kwee
SupremeCourtBuilding-Singapore-20070210.jpg
Court Court of Appeal of Singapore
Full case nameAnimal Concerns Research & Education Society v Tan Boon Kwee
Decided20 January 2011
Citation(s)
  • [2011] 2 SLR 146
  • [2011] SGCA 2
Court membership
Judges sitting
Keywords

Animal Concerns Research & Education Society v Tan Boon Kwee[2011] SGCA 2 is a leading case in the law of negligence in Singapore. It was an appeal to the Singapore Court of Appeal by Animal Concerns Research & Education Society (ACRES) on a lawsuit alleging that a contractor had polluted land. The court found in favour of ACRES, awarding over $25 million in damages, but ACRES was unable to recover much of it as Tan was unable to pay. [1] [2] [3]

Contents

ACRES established a number of key principles in the application of the Spandeck test in negligence. In it, Justice Andrew Phang found that the existence of the arbitration clause in Spandeck was what negated the imposition of a duty of care, and that contracts in themselves do not preclude a tortious relationship from arising. [4] He also noted that the test of "legal proximity" need sometimes be considered beyond mere physical proximity. [5] At the policy stage, Phang ruled that positive policy considerations should be weighed in tandem with negative ones. [6]

Background

ACRES is a charity that engages in animal conservation work. It engaged A.n.A Contractor Pte Ltd in constructing an animal shelter. A.n.A subsequently employed Tan Boon Kwee, a director of the company, to supervise the construction of the site. Originally, the site was to be constructed by levelling the soil on the site; however, under Tan's supervision, soil from another site was brought in instead, resulting in severe soil pollution. At the court of first instance (the Singapore High Court), ACRES sued A.n.A for breach of contract and Tan for negligence in supervising the work. The court allowed the claim for breach of contract but not in negligence. ACRES appeals to the Singapore Court of Appeal on the claim in negligence. [7]

Judgment

Justice Andrew Phang, in delivering the judgment of the court, allowed ACRES's appeal, overruling the high court's decision on negligence. The high court judge ruled that s 10(5)(b) of the Building Control Act did not impose a duty of care upon the defendant. However, Phang ruled that the Act did preclude the present appeal as the statute concerned "structural elements", whereas the present case comprised "earth filling". [8]

Applying the Spandeck test, he affirmed that claims of pure economic loss in curing physical damage were allowed. [9] He ruled that the defendant could factually foresee loss as a result of negligence, that there was proximity between plaintiff and defendant, and that there were no policy reasons to negate the imposition of a duty of care. [10]

On the proximity limb in Spandeck, Phang focussed upon the test of legal proximity beyond the three proximities of physical, causal, and circumstantial proximity in Spandeck. Phang found that the position that Tan occupied, as a "clerk of works" had a historical and legal basis for generally assuming responsibility to a client over construction, "regardless of whether they are in a formal employer-employee relationship". Additionally, Tan's position as both a clerk of works and a director of the contracting company posed an "exceptional fact situation, for clerks of work in claims of negligence should usually not be held fully liable for damages but playing some role in contributory negligence or vicarious liability. Arising from the "variation in qualifications of clerks of works", Phang noted that the nature of clerks of works meant that they owed a limited scope of duty to clients, if any. Phang ruled that the general principles of when liability can be established must be considered in regard to the facts, citing Hedley Byrne as an example of when a general principle of imposing duty was not applied. As a matter of fact, Phang found that Tan voluntarily assumed responsibility of supervising construction, and that he must have also known that ACRES relied on that assumption of responsibility in engaging with A.n.A, applying the twin criteria test in Hedley. [5]

Phang distinguished the present case from the case of Spandeck, where it was held that the contractual relationship between parties precluded a duty of care in tort from arising. He found that the crux of the judgment in Spandeck was that the existence of an arbitration clause indicated that parties wanted to exclude a duty in tort from their contractual relationship. As no such clause was in the present case, and because "[t]he mere fact that there is a pre-existing contractual relationship or backdrop between parties should not... exclude a duty of care...", Phang imposed a prima facie duty of care on Tan. [4]

On the policy limb in Spandeck, Phang considered three policy considerations: statutory duty; the corporate veil of the respondent; and the respondent's conflict of interest. In clarifying the approach outlined in Spandeck, he noted that whilst the limb of policy was to be used to negate a prima facie duty of care, it "does not mean that courts cannot... have due regard to the presence of policy considerations" and that "courts may sometimes need to deploy such countervailing positive policy considerations in order to dismiss spurious negative [ones]". [11]

First, he distinguished the present case from the English case of Murphy v Brentwood DC , stating that whilst the relevant statute in Murphy regulated the impositions of duty, the Building Control Act did not. Phang interpreted the Act as concerning "purely criminal sanctions". He also ruled "the fact that the Act does not cover a particular situation" can give way to the possibility that such a situation is one that "the courts should remedy, as opposed to the possibility that the Legislature intended for such a situation to be completely unregulated by common law". The policy ground of "public and workplace safety" was also a reason considered in not allowing the policy consideration of statute to negate the imposition of duty. [6]

Second, Phang found that imposing a duty on Tan himself rather than A.n.A would not be "an unwarranted lifting of the corporate veil" as the negligent acts arose from his acting in a personal capacity as a clerk of works rather than A.n.A's corporate actions. Third, Phang found that the positive policy consideration Tan appointed himself as a clerk of works, in doing so misrepresenting himself to the Building and Construction Authority, was one that made the imposition of duty even more justiciable. [12]

Overall, Phang found that Tan had clearly breached the duty of care owed to ACRES, and that there was causation and remoteness on the part of Tan's actions. [13] Phang did not accept Tan's argument that Tan did not breach his duty as a clerk of works because what he knew as in the capacity of a clerk was different from what he knew in the capacity as a director, reasoning that the "distinction [w]as somewhat unreal". [14]

Significance

ACRES was a leading development in the autochthonous Singapore law of negligence, having been applied in other leading cases such as NTUC Foodfare Co-operative Ltd v SIA Engineering [15] and Go Dante Yap v Bank Austria Creditanstalt. [16] Academic scholarship have generally viewed ACRES favourably, with Margaret Fordham describing it as a "welcome addition to the Spandeck jurisprudence". [17] Academic commentators have noted many significant theoretical developments in ACRES to the Spandeck test. For one, the court in ACRES acknowledged that proximity factors could also be factors in policy. [18] Commentators have also pointed how the court ACRES integrated the requirement of knowledge in Hedley Byrne into the separate requirement of reliance, how it affirmed that the policy stage was ultimately a negative one, and how it indicated that duties in tort must be explicitly excluded through the structuring of a contract. Nonetheless, some have described the policy approach in ACRES has been described as "a simple balancing exercise", one that demonstrates how "the Singapore courts have not faced any formidable challenge in having to balance positive and negative policy considerations" using the Spandeck test. [19]

Some have criticised the uncertainty brought about by the definition of proximity, noting that while in ACRES the three proximities of physical, causal, and circumstantial proximity were specifically noted, the court did not actually consider the proximities in its judgment, choosing instead to focus on the voluntary assumption of responsibility. [18] In reference to other cases, some have argued that the voluntary assumption of responsibility test in ACRES cannot explain judgments that appear to have disregarded assumption of responsibility as the requirement for proximity. [20]

Aftermath

An award of damages was made in 2013, giving ACRES $26.5 million in damages, largely owing to the cost of cleanup. [1] ACRES was not able to claim the full amount of damages from the suit as Tan Boon Kwee became bankrupt in 2012 owing to legal fees. [2] Tan was later imprisoned in 2015 after criminally attempting to avoid paying damages to ACRES. [3]

Related Research Articles

Negligence is a failure to exercise appropriate care expected to be exercised in similar circumstances.

<span class="mw-page-title-main">Law of Singapore</span> National law of the city-state

The legal system of Singapore is based on the English common law system. Major areas of law – particularly administrative law, contract law, equity and trust law, property law and tort law – are largely judge-made, though certain aspects have now been modified to some extent by statutes. However, other areas of law, such as criminal law, company law and family law, are almost completely statutory in nature.

<i>Anns v Merton LBC</i>

Anns v Merton London Borough Council[1977] UKHL 4, [1978] AC 728 was a decision of the House of Lords that established a broad test for determining the existence of a duty of care in the tort of negligence, called the Anns test or sometimes the two-stage test for true third-party negligence. The case was overruled by Murphy v Brentwood DC [1991].

<i>Cooper v Hobart</i> Supreme Court of Canada case

Cooper v Hobart, 2001 SCC 79 is a Supreme Court of Canada case that redefined the "Anns test", which was adopted in Kamloops v Nielsen to establish a duty of care in civil tort cases.

<i>Caparo Industries plc v Dickman</i> English tort law case

Caparo Industries PLC v Dickman[1990] UKHL 2 is a leading English tort law case on the test for a duty of care. The House of Lords, following the Court of Appeal, set out a "three-fold test". In order for a duty of care to arise in negligence:

In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialised set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.

<span class="mw-page-title-main">Andrew Phang</span> Singaporean judge

Andrew Phang Boon LeongPJG is a Singaporean judge in the Supreme Court, currently sitting as a Senior Judge.

<i>Dobson (Litigation guardian of) v Dobson</i> Supreme Court of Canada case

Dobson v Dobson, [1999] 2 SCR 753 was a landmark decision by the Supreme Court of Canada on a pregnant woman's legal duties in tort law. It was the first time the Supreme Court of Canada had to consider this issue. The majority of the Court found that tort claims cannot be brought against women for negligence toward the fetus during pregnancy.

Although the legal system of Singapore is a common law system, the criminal law of Singapore is largely statutory in nature and historically derives largely from the Indian penal code. The general principles of criminal law, as well as the elements and penalties of general criminal offences such as assault, criminal intimidation, mischief, grievous hurt, theft, extortion, sex crimes and cheating, are set out in the Singaporean Penal Code. Other serious offences are created by statutes such as the Arms Offences Act, Kidnapping Act, Misuse of Drugs Act and Vandalism Act.

Kent v Griffiths [2000] 2 All ER 474 is an English tort law case from the Court of Appeal concerning negligence, particularly the duty of care owed by the emergency services; particularly the ambulance service. The emergency services do not generally owe a duty of care to the public except in certain, limited circumstances (Hill v Chief Constable of West Yorkshire [1989] AC 53.

<span class="mw-page-title-main">Doctrine of bias in Singapore law</span> Principle of appellate law in Singapore

Bias is one of the grounds of judicial review in Singapore administrative law which a person can rely upon to challenge the judgment of a court or tribunal, or a public authority's action or decision. There are three forms of bias, namely, actual, imputed and apparent bias.

<i>Eng Foong Ho v Attorney-General</i> Singapore legal judgement

Eng Foong Ho v Attorney-General was a 2009 judgment of the Court of Appeal of Singapore, on appeal from a 2008 decision of the High Court. The main issue raised by the case was whether the Collector of Land Revenue had treated the plaintiffs, who were devotees of the Jin Long Si Temple, unequally by compulsorily acquiring for public purposes the land on which the temple stood but not the lands of a Hindu mission and a Christian church nearby. It was alleged that the authorities had acted in violation of Article 12(1) of the Constitution of the Republic of Singapore, which guarantees the rights to equality before the law and equal protection of the law.

<span class="mw-page-title-main">Administrative law in Singapore</span> Law of Singapores government agencies

Administrative law in Singapore is a branch of public law that is concerned with the control of governmental powers as exercised through its various administrative agencies. Administrative law requires administrators – ministers, civil servants and public authorities – to act fairly, reasonably and in accordance with the law. Singapore administrative law is largely based on English administrative law, which the nation inherited at independence in 1965.

<i>Chandler v Cape plc</i>

Chandler v Cape plc [2012] EWCA Civ 525 is a decision of the Court of Appeal which addresses the availability of damages for a tort victim from a parent company, in circumstances where the victim suffered industrial injury during employment by a subsidiary company.

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd is an important case in South African law. It was heard in the Supreme Court of Appeal on 5 November 2008, with judgment handed down on 26 November. The judges were Scott JA, Farlam JA, Brand JA, Lewis JA and Jafta JA. JH Dreyer SC appeared for the appellant, and AC Ferreira SC for the respondent.

<i>Deloitte & Touche v Livent Inc (Receiver of)</i> Supreme Court of Canada case

Deloitte & Touche v Livent Inc , 2017 SCC 63 is a leading case of the Supreme Court of Canada concerning the duty of care that auditors have toward their clients during the course of a professional engagement.

<i>Hill v Chief Constable of West Yorkshire</i>

Hill v Chief Constable of West Yorkshire[1987] UKHL 12, [1989] AC 53 was a judicial decision of the House of Lords in relation to the claim by the mother of Jacqueline Hill against West Yorkshire Police that their negligence in failing to apprehend the killer resulted in her daughter's death.

<i>March v Stramare (E & MH) Pty Ltd</i> Judgement of the High Court of Australia

March v Stramare Pty Ltd Pty Ltd was a High Court of Australia case decided in 1991 on Australian tort law. The case considered the conditions required for causation to be established in tort law, the limitations of the "but for" test and the significance of an intervening act by a third party in determining causation. In this case, the High Court held that, although it was useful in clarifying the facts of the case, the but-for test was not the exclusive test in determining causation as it posed difficulties in attributing responsibility for damages in two key types of cases. The first was in cases when attributing responsibility in cases where the damage was caused by the negligence of more than one party, and the second was in cases where the damage resulted from an intervening act. Instead, the court favoured a case-by-case basis approach in attributing legal responsibility for causation, which took both common sense principles and public policy concerns into consideration when coming to a decision.

<i>Spandeck Engineering v Defence Science and Technology Agency</i> Landmark case in Singapore tort law

Spandeck Engineering v Defence Science and Technology Agency [2007] SGCA 37 was a landmark decision in Singapore law. It established a new framework for establishing a duty of care, differentiating the Singaporean law of tort from past English common law precedent such as Caparo v Dickman and Anns v Merton, whilst also allowing for claims in pure economic loss, which are generally not allowed in English law.

Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric2007 SGCA 36 is a leading case in the Singapore law of contract and tort. It clarified the law of causation in tort, outlined the test for causation in contract as being the same as the but-for test in tort, and considered when the doctrine of res ipsa loquitur may apply.

References

  1. 1 2 "Animal welfare group wins $26.5 million in contamination suit | The Straits Times". www.straitstimes.com. 6 June 2013. Retrieved 14 November 2022.
  2. 1 2 "Acres has yet to receive a cent from $26.5m suit". AsiaOne. 27 November 2013. Retrieved 14 November 2022.
  3. 1 2 "Man jailed for scheming to avoid paying damages". AsiaOne. 17 October 2015. Retrieved 14 November 2022.
  4. 1 2 ACRES at [69] - [74]
  5. 1 2 ACRES at [37] - [64]
  6. 1 2 ACRES at [81]
  7. ↑ ACRES v Tan Boon Kwee [2011] 2 SLR 146
  8. ↑ ACRES at [26] - [28]
  9. ↑ ACRES at [32]
  10. ↑ ACRES at [88]
  11. ↑ ACRES at [76] - [77]
  12. ↑ ACRES at [83] - [88]
  13. ↑ ACRES at [103]
  14. ↑ ACRES at [92]
  15. ↑ [2018] 2 SLR 588
  16. ↑ [2011] 4 SLR 559
  17. ↑ Fordham, Margaret (2011). "THE DUTY OF CARE OF A CLERK OF WORKS—SPANDECK AND ITS AFTERMATH: Animal Concerns Research & Education Society v. Tan Boon Kwee". Singapore Journal of Legal Studies: 260–269. ISSN   0218-2173. JSTOR   24870571.
  18. 1 2 PROXIMITY AS REASONABLE EXPECTATIONS Sing JLS [2019] 147 - 156
  19. ↑ The Promise of Universality (2013) 25 SAcLJ 510
  20. ↑ Reconceiving Proximity in the Duty to Avoid Causing Pure Economic Loss (2021) 33 SAcLJ 1083
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.