TORT OF NEGLIGENCE

A. ELEMENTS OF THE TORT OF NEGLIGENCE

1. 2. 3. 4. Defendants owed a duty of care to Plaintiff Defendant breached duty of care. Plaintiff suffered damage as a result of the breach and can sue for compensation. There is no defence to plaintiffs claim.

(1) DEFENDANTS OWED A DUTY OF CARE TO PLAINTIFF (UK)

1.1 The Neighbo !i"g P!i"#i$%e In Donoghue v Stevenson Lord At in! "The rule that you are to lo#e your nei$hbour becomes in la%& you must not in'ure your nei$hbour( and the la%yers )uestion& *+ho is my nei$hbour, recei#es a restricted reply. -ou must ta e reasonable care to a#oid acts or omissions %hich you can reasonably foresee %ould be li ely to in'ure your nei$hbour. +ho& then& in la% is my nei$hbour, The ans%er seems to be . persons %ho are so closely and directly affected by my act that I ou$ht reasonably to ha#e them in contemplation as bein$ so affected %hen I am directin$ my mind to the acts or omissions %hich are called in )uestion./ 0ie%ed as "pure forseeability test/. 1seful for physical dama$es but too %ide to co#er economic loss. 23PL 14.56

Do"ogh e & S'e&e"(o" (1)*+6 F,#'(! Appellant dran a bottle of $in$er beer bou$ht by friend. 7ound partially decomposed snail at bottom of bottle. 8laimed she suffered $astroenteritis as a result. - .ge/e"'! 9anufacturer %as liable by "nei$hbourin$ principle/.

S$,!'," S'ee% ,". A%%o0( L'. & M,!'i" 1Co L'. (1)2*)3 Sig"i4i#,"#e3 "Pure forseeability test/ is 'oo 5i.e.

F,#'(! Defendants employees ne$li$ently dama$ed a cable %hile repairin$ a road. Led to po%er cut in Plaintiffs factory. - .g/e"'! Physical Dama$e to Ps product . allo%ed claim for the loss of profit. Loss of further profit . disallo%ed as on the $round of pure economic loss. Sig"i4i#,"#e! Ar$uin$ on %hether :L %as foreseeable and direct. Lord Dennin$ 9; deems e<istence of duty in :L is a )uestion of public policy. 1.+ The 6Th!ee7P,!'8 Te(' (4!o/ 'he Caparo #,(e) A. Pro<imity 3. 7oreseeability 2from nei$hbour principle6 8. "7air& 'ust and reasonable/. C,$,!o I". ('!ie( P%# & Di#9/," (1)):)3 23enny p 4=5& 1=>4116 Sig"i4i#,"#e! 8reation of the "three>part test/ F,#'(! Plaintiffs 2the company6 brou$ht an action a$ainst the defendants 2directors and auditors of a company that %as sub'ect of ta e>o#er6. 3ecause of report on status of company& they purchased more shares& ultimately ta in$ o#er the company. 8laim reports are misleadin$. - .g/e"'! Defendants %ere not liable . no duty of care. ;eports %ere published to enable people to e<ercise them accordin$ly and not for the #ie% of indi#idual profit. T8?s @eminar Autline! "BICn addition to the foreseeability of dama$e& necessary in$redients in any situation $i#in$ rise to a duty of care are that there should e<ist bet%een the party o%in$ the duty and the party to %hom it is o%ed a relationship characterised by the la% as one of *pro<imity or *nei$hbourhood and that the situation should be one in %hich the court considers it fair& 'ust and reasonable that the la% should impose a duty of a $i#en scope upon the one party for the benefit of the other. 3ut it is implicit in the passa$es referred to that the concepts of pro<imity and fairness embodied in these additional in$redients are not susceptible of any such precise definition as %ould be necessary to $i#e them utility as practical tests& but amount in effect to little more than con#enient labels to attach to the features of different specific situations %hich& on a detailed e<amination of all the circumstances& the la% reco$nises pra$matically as $i#in$ rise to a duty of care of a $i#en scope./ 1. 9eanin$ of pro<imity 2in Tabalu'an6! o @ense of closeness bet%een person %ho o%es and person %ho is o%ed duty of care. 8an e<tend beyond physical closeness. 2. 9eanin$ of fair& 'ust and reasonable

Do one no%s %hat it means . 3PL 14.2E& P$ E22 o 3est #ie%ed as public policy

ELEMENTS OF NEGLIGENCE (1.1)3 DEFENDANTS OWED A DUTY OF CARE TO PLAINTIFF (SINGAPORE) A. :ndorsed "three part test/ in Ikumene Singapore Pte Ltd v Leong Chee Leng . 23PL 14.36 I9 /e"e Si"g,$o!e P'e L'. & Leo"g Chee Le"g(1))*)3 (;e""0< Pg =>>< 1>7=1=) Sig"i4i#,"#e! endorsed "three part test/ . no duty of care on part of auditor to $uarantor of company. O'he! #,(e(! @%iss @in$apore A#erseas :nterprise Pte Ltd # ?orn$ 8han$ :nterprise Pte Ltd 214436 @tandard 8hartered 3an # 8oopers F Lybrand 214436 (Benny, Pg 488, 18-414) 9ohd bin @apri # @oil>3uild 2Pte6 Ltd 2144G6 3. Appeared to use "t%o>sta$e test/ in RSP Architects Planners !ngineers v "cean #ront Pte Ltd$%&&'( b ' in RSP Architects Planners !ngineers v )anagement Corporation Strata *itle Plan +o %,-. courts claimed they had "o' applied 2>sta$e. :ither! 216 court applied t%o>sta$e from Anns Ar 226 court applied "three>part/ in t%o sta$es. 20ariation! pro<imity by policy instead of foreseeability by policy.6 RSP A!#hi'e#'( P%,""e!( 1 E"gi"ee!( & O#e," F!o"' P'e L'.(1))?) Sig"i4i#,"#e! 8ourts #ie% of *t%o sta$e test in Anns . Lord +ilberforces test %as *purely obiter and allo%ed for claim under :conomic Loss. @eemed to apply "t%o sta$e/. F,#'(! Plaintiff mana$ement corporation of a condo brou$ht an action a$ainst defendant 2de#elopers6 for faulty construction resultin$ in concrete spallin$ in ceilin$s of basement carpar s and %ater pondin$ of common areas and corridors around life lobbies. 2de#elopers 'oined architects as 3rd parties6. Purely :conomic Loss - .g/e"'! Accordin$ to )urphy& courts should disallo%. 3ut courts held that defendants o%ed duty of care to plaintiffs to e<ercise reasonable care to a#oid dama$e that has been sustained. P!o@i/i'0 . sufficient by fi#e reasons. 23PL P$ E24& bottom of pa$e6. 8ourt considered relationship of parties. F,i!< - (' ,". Re,(o",b%e . courts "consider whether there is any policy consideration in negativing such duty of care/. Fo!e(ee,bi%i'0 . did not adopt 2at the 1st sta$e6 a test of foreseeability in literal sense but did consider relationship bet%een parties. A o'e 4!o/ LP The," -A! "3ut the approach of the court has been to e<amine a particular circumstance to determine %hether there e<ists that de$ree of pro<imity bet%een the plaintiff

and the defendant as %ould $i#e rise to a duty of care by the latter to the former %ith respect to the dama$e sustained by the former. @uch pro<imity is the "determinant/ of the duty of care and also the scope of such duty/. C,(e( Co"(i.e!e.! )urphy. $%&&.( RSP A!#hi'e#'( P%,""e!( 1 E"gi"ee!( (R,g%," SB i!e 1 P,!'"e!( FE) & M,",ge/e"' Co!$o!','io" S'!,', Ti'%e P%," No 1:2C (1))))3 F,#'(! also defecti#e construction in condo. Plaintiffs . mana$ement corp. Defendants . architects and main contractor %ho 'oined as 3 rd party. There %as physical dama$e in roof and contents of unit but main e<penses %ere rectification %as %all claddin$s %hich had not yet fallen to a#oid future in'ury to people andIor dama$e to property. Pure economic Loss - .ge/e"'! expressly rejected *t%o sta$e test in Anns. A o'e 4!o/ LP The," -A! "It is abundantly clear that in Acean 7ront this court did not follo% the broad proposition laid do%n by Lord +ilberforce in Anns. True& the court reached its conclusion by a t%o>sta$e process. In principle& there is no ob'ection to such an approach. It depends on %hat is in#ol#ed and considered in each sta$e. The court certainly did not apply the first test in Anns. The courts findin$ that there %as sufficient de$ree of pro<imity $i#in$ rise to a duty on the part of the de#elopers to a#oid the loss sustained by the mana$ement corporation 5,( "o' $!e/i(e. o" 4o!e(ee,bi%i'0 o4 .,/,ge ,%o"e< b ' o" #o"(i.e!,'io" o4 o'he! !e%e&,"' 4,#'(. Dor did the court accept Lord +ilberforces proposition that in any $i#en situation a sin$le $eneral rule or principle can be applied to determine %hether a duty of care arises. It does not follo% from the mere fact that the court in the course of their determination e<amined the facts by the t%o>sta$e process that the court in effect follo%ed Anns./ "@tripped of the #erbia$e& the cru< of such approach is no more than this! the court first e<amines and considers the facts and factors to determine %hether there is a sufficient de$ree of pro<imity in the relationship bet%een the party %ho has sustained the loss and the party %ho is said to ha#e caused the loss %hich %ould $i#e rise to a duty of care on the part of the latter to a#oid the ind of loss sustained by the former. J De<t& ha#in$ found such de$ree of pro<imity& the court ne<t considers %hether there is any material factor or policy %hich precludes such duty from arisin$./ D '0 o4 #,!e o5e. by defendants to plaintiffs . architects assumed responsibility of professional competence to e<ercise reasonable care and s ill. P!o@i/i'0! *architects ne% mana$ement corporation %ould be in char$e and %ould be mana$in$ the common property and %ould depend on their care and s ill in the desi$n and super#ision of construction of common property sufficient pro<imity in relationship to $i#e rise to a duty on part of architects. F,i!< - (' ,". Re,(o",b%e! refer to /ryan v )aloney 2144E6 Australian . /ryan v )aloney 2144E6 . e<pressly declined to follo% De% Healand . Invercargill City Council v 0amlin $%&&'( 8anada . 1innipeg Condominium Corp +o 2' v /ird Construction Co

(1) In#estment in real property is li ely to represent si$nificant 2if not most si$nificant6 in#estment in an indi#iduals lifetime. 9ore money in#ested than a chattel. (+) Permanence of structure . $reat e<pectation than chattel. Applies in @in$apore %here land is scarce and e<pensi#e. Also in /ryan v )aloney 2144E6& "difficult to see %hyJa ne$li$ent builder should be liable for ordinary physical in'ury caused to any person or to other property by reason of the collapse of a buildin$ by reason of inade)uacy of foundations but not be liable to the o%ner of the buildin$ for the cost of remedial %or necessary to remedy the inade)uacy and to a#ert such dan$er/. 3ut it is 5!o"g 'o (i/$%0 (','e 'h,' 'he Si"g,$o!e $o(i'io" 4o! !e#o&e!0 o4 $ !e e#o"o/i# %o(( i( 5i.e! after the abo#e t%o cases. M," ;1W Die(e% SE A(i, & PT ; /i I"'e!",'io",% T,"9e!( (+::=)3 F,#'(3 This case concerned the alle$ed ne$li$ent supply and manufacture of a ships en$ine for a #essel o%ned by PT 3umi. The en$ine installed did not ha#e a sufficiently po%erful output& and as a result& PT 3umi suffered pure economic loss because their #essel had to be repeatedly put into port to repair& and ultimately replace the en$ine for one of lar$er capacity. 7or a period from 144E to 1445& the #essel could not be hired out and the loss of potential re#enue amounted to around 1@K4LL&LLL. PT 3umi also suffered pure economic loss in ha#in$ to pay for a replacement en$ine 2%hich cost around 1@K2m6. The #essel had been constructed for PT 3umi by 9alaysian @hipyard and :n$ineerin$ @dn 3hd 2"9@:/6 pursuant to a contract bet%een the t%o of them. This contract contained e<press clauses that limited the remedies a#ailable to PT 3umi 2as a$ainst 9@:6& in the e#ent of defects disco#ered in the #essel. The price paid included both the hull and the en$ine of the #essel and PT 3umi %as a%are that 9@: %ould ac)uire the en$ine from a third party. The en$ine %as supplied to 9@: by 9an 3F+ Diesel @: Asia 2"93@/6. These en$ines %ere manufactured by 93@ 1M parent company& 9irlees 3lac stone Limited 2"931M/6. There %as no contract bet%een 3umi and 93@ or 931M for the supply of the main en$ine& althou$h PT 3umi could ha#e arran$ed to do so. De#ertheless& PT 3umi chose not to enter into direct contract relations %ith 93@ or 931M althou$h it %as a%are that 93@ had been commissioned by 9@: to supply the en$ines for the #essel. +hen the #essel had to be put into port to repair and ultimately replace the #essel& PT 3umi sued 93@ and 931M in tort for ne$li$ent supply and manufacture of the en$ine 29@: %as sa#ed by the limitation clauses in its contract %ith PT 3umi6. - .g/e"'3 There %as a contract bet%een 9@: and PT 3umi containin$ a limited %arranty and se#eral limitation clauses. ?o%e#er& PT 3umi did not ha#e a direct contractual relationship %ith 93@ or 931M& althou$h it could ha#e entered into a direct contractual arran$ement %ith 93@ and 931M in relation to the en$ine. 3y enterin$ into the main contract %ith 9@: on such limited terms& PT 3umi committed itself to loo in$ to 9@: for redress. +hile PT 3umi %as an<ious that 93@ and 931M should produce an en$ine in accordance %ith specifications& it did not intend to see redress from 93@ and 931M. As far as PT 3umi %as concerned& it had relied on 9@: alone. To 'he" i"4e! , . '0 o4 #,!e o" M;S ,". M;UK 5o %. ! " #o "'e! 'o 'he ($e#i4i# ,!!,"ge/e"' 'h,' PT ; /i h,. #ho(e" 'o /,9e 5i'h MSE.

7urther& %hile 93@ and 931M o%ed a contractual duty of care to 9@: by #irtue of the sub>contract& there %as no such assumption of duty by 93@ or 931M #is>N>#is 3umi. If PT 3umi %as concerned about the limitation of liability clauses in the main contract& it should ha#e modified them before e<ecution. Alternati#ely& PT 3umi could ha#e $one to another builder or obtained independent insurance co#era$e for any economic losses. PT ; /i h,. /,.e i'( b,!g,i" ,". o gh' 'o %i&e 5i'h i'. I' 5,( "o' 4o! 'he #o !' 'o he%$ , $,!'0< ,4'e! 'he e&e"'< 'o i/$!o&e hi( #o//e!#i,% b,!g,i". Therefore& 93@ and 931M o%ed no duty of care in the tort of ne$li$ence to PT 3umi in relation to its loss of hire that could ha#e been earned& if not for the #essels do%n time. @imilarly& they o%ed no duty of care in relation to PT 3umis losses for the cost of replacin$ the #essels en$ine. DIFFICULT CASES A. +here dama$e is caused by A9I@@IAD A7 D:7:DDADT. Donoghue !te enson . once positi#e action underta en& %ill be accompanied by le$al liability if underta en in negligent manner. 31T does not apply %here dama$e is incurred by defendants failure or omission to act. Admittedly& the di#ision bet%een the t%o may often be #ie%ed as a matter of semantics . e.$. the failure of the bottlers in Donoghue v Stevenson to pre#ent the snail from bein$ bottled may be fairly described as either a positi#e ne$li$ent action or as an omission. 3roadly spea in$& ho%e#er& the di#ision bet%een the t%o may be #ie%ed as the difference bet%een acti#ely causin$ harm 2a ne$li$ent act6 and merely passi#ely failin$ to pre#ent harm 2a ne$li$ent omission6. +here it cannot be established that there is a positi#e duty to pre#ent harm& then merely passi#ely failin$ to pre#ent harm cannot $i#e rise to liability. +hen& then& can it be established that there is such a positi#e duty, ;esortin$ to the nei$hbour principle merely be$s the )uestion. The follo%in$ fact>scenarios illustrate the difficulty %ith %hich the common la% has in imposin$ tort liability in ne$li$ence for omissions %hich in#ol#e the passi#e failure of the defendant to pre#ent harm to a plaintiff! 216 Re($o"(ibi%i'0 4o! o'he! $e!(o"( . %here the defendant is responsible for the personal safety of the plaintiff 2a6 Parent and child! Duty of parent to loo after the %elfare and safety of their child 2b6 @chool and students! Duty of school to pro#ide a safe learnin$ en#ironment for their students . consider 1.@. difficulties %ith this after Columbine. 2c6 :mployer and employee! duty of employer to pro#ide a safe %or en#ironment and system of %or 2d6 ;escuer and #ictim! It may be that once you underta e to rescue someone& you ha#e to carry it throu$h %ithout serious errors of 'ud$ment . 0orsley v )acLaren $*he "gopogo( B1451C 2 Lloyds ;ep 41L 2@upreme 8ourt of 8anada6. Re($o"(ibi%i'0 4o! .,"ge!( o" $!o$e!'0 2a6The occupier of a property has a positi#e duty to ta e steps to ensure the safety of #isitors to his property.

226

2b6 ?e may e#en ha#e a positi#e duty to ta e steps to ensure the safety of trespassersO 236 Re($o"(ibi%i'0 4o! 'he 'o!'( o4 o'he!( 2a6 S/i'h & Li''%e5oo.( O!g,"iD,'io" L'. E1)>2F AC +=1 (Ho (e o4 Lo!.(). F,#'(! Defendant bou$ht an old cinema for reno#ation. 0andals started fire in the cinema %hich destroyed ad'oinin$ property o%ned by the plaintiff. Plaintiff sued defendant ar$uin$ defendant o%ed DA8. - .g/e"'! Do DA8 o%ed. Defendant not a%are of any pre#ious acts of #andalism and no reason to suspect that fire %ould start in cinema by #andals. G( 2b6 Dorset "acht Co #ome $%%ice E1)2:F AC 1::= (Ho (e o4 Lo!.() F,#'(! The ?ome office& a $o#t. department in the 1M %as in char$e of prisons and remand centres. Detainees escaped from remand centres and dama$ed respondents property %hile on the loose. ;espondent sued ?ome Affice& alle$in$ it o%ed duty of care. - .ge/e"'! DA8 o%ed. Li,bi%i'0 o4 $ b%i# bo.ie( 4o! 4,i% !e 'o $!e&e"' .,/,ge 2;:7:; TA A3A0:6 Anns v )erton London /C& compared %ith )urphy v /rentwood DC

246

3. T+A @TAP: T:@T ADD LIA3ILIT- 7A; D:;0A1@ @?A8M A; P@-8?IAT;I8 ?A;9 7oreseeability is not needed for primary #ictim There is DA liability for mere misery or other human emotions such as $rief or unhappiness& as opposed to illness arisin$ from shoc . 9ust distin$uish bet%een "primary/ and "secondary/ #ictims. !tuart-!mith '( in )c*arlane + ,+,+ Caledonia 'td+ -1..4/0 (no need) @uch "direct in#ol#ement/ or participation in the accident may arise in a number of %ays! "There are I thin basically three situations in %hich a plaintiff may be a participant %hen he sustains psychiatric in'ury throu$h fear of physical in'ury to himself. Fi!('& %here he is in the actual area of dan$er created by the e#ent& but escapes physical in'ury by chance of $ood fortune. J Se#o".%0& %here the plaintiff is not actually in dan$er& but because of the sudden and une<pected nature of the e#ent he reasonably thin s that he is. An e<ample of this is Dulieu #. +hite F @ons& B14L1C 2 M.3. GG4 %here the plaintiff %as put in fear for her safety %hen the defendantsQ runa%ay #ehicle burst into the public house %here she %as ser#in$ behind the bar. @he %as not in fact at ris of physical in'ury( but she naturally %as put in fear for her o%n safety. This %as somethin$ that plainly ou$ht to be in the contemplation of the defendant %ho ne$li$ently allo%s his #ehicle to career out of control. It is not only those %ho may be able to flin$ themsel#es out of its path and so escape physical in'ury 2%ho %ould fall into cate$ory 16& but those in the a$ony of the moment %ho reasonably belie#e they are in dan$er. J Thi!.%0& the situation may arise %here the plaintiff %ho is not ori$inally %ithin the area of dan$er comes into it later. In the ordinary %ay& such a person& %ho is a #olunteer& cannot reco#er if he has freely and #oluntarily entered the area of dan$er. This is not somethin$ that the tortfeasor can reasonably foresee& and the plaintiff may also be met %ith a defence of #olenti non fit in'uria. ?o%e#er if he comes as a rescuer& he can reco#er. This is because a tortfeasor %ho has put A in peril by his ne$li$ence must reasonably foresee that 3 may come to rescue him BAC& e#en if it in#ol#es ris in$ his B3sC o%n safety. J/

P!i/,!0 &i#'i/(! $enerally +ILL be able to reco#er for psychiatric injuries caused by negligence o% de%endant as lon$ as it is reasona1ly %oreseea1le that the plaintiff %ould suffer personal in'ury because of his ne$li$ence. Do need to determine if incidence of psychological damage could be foreseen or if he actually suffers physical in'uries. Page !mith (1..2) Applies t%o sta$e test for nervous shock or psychiatric harm to primary #ictims. o :ntitled to reco#ery e#en %hen psychiatric illness %as not reasonably foreseeable . pro#ided that physical in'ury %hich %as apprehended and %hich gave rise to the psychiatric illness %as foreseeable. Se#o".,!0 Gi#'i/(! 9ust impose certain additional controls. ;OTH physical proximity 2time and space6 ADD emotional proximity 2in terms of "relationship/6 are re)uired to succeed in claim for ner#ous shoc caused by ne$li$ence to a "secondary #ictim/. Appears that easier for secondary #ictim to successfully sue if he has directly seen or heard the e#ent 2or its immediate aftermath6 %ith unaided senses rather than throu$h 3rd party. Ruote Lord Lloyd in Page v Smith $%&&'(! "1. In cases in#ol#in$ ner#ous shoc & it is essential to distin$uish bet%een the primary #ictim and secondary #ictims. 2. In claims by secondary #ictims the la% insists on certain control mechanisms& in order as a matter of policy to limit the number of potential claimants. Thus& the defendant %ill not be liable unless psychiatric in'ury is foreseeable in a person of normal fortitude. 3. In claims by secondary #ictims& it may be le$itimate to use hindsi$ht in order to apply the test of reasonable foreseeability at all. ?indsi$ht& ho%e#er& has no part to play %here the plaintiff is the primary #ictim. 4. @ub'ect to the abo#e )ualifications& the approach in all cases should be the same& namely& %hether the defendant can reasonably foresee that his conduct %ill e<pose the plaintiff to the ris of personal in'ury& %hether physical or psychiatric. If the ans%er is yes& then the duty of care is established& e&e" 'ho gh $h0(i#,% i"H !0 .oe( "o'< i" 4,#'< o## !. J E. A defendant %ho is under a duty of care to the plaintiff& %hether as primary or secondary #ictim& is not liable for dama$es for ner#ous shoc unless the shoc results in some reco$niSed psychiatric illness. It is no ans%er that the plaintiff %as predisposed to psychiatric illness. Dor is it rele#ant that the illness ta es a rare form or is of unusual se#erity. The defendant must ta e his #ictim as he finds him./ )c'oughlin $3Brian (1.84)3 (Benny, Pg 484, 18-445) (important) Applies t%o sta$e test for nervous shock or psychiatric harm to related secondary #ictims. Inade)uate to only focus on reasonable foreseeability (+)N,!!o5i"g! Public Policy did not limit reco#ery under ner#ous shoc or psychiatric harm. Ather %ays to limit scope of application! o The class of persons %ho should succeed 2relational6

o The pro<imity of the plaintiffs concerned 2spatial6 o 9eans by %hich shoc is caused. 2perceptional . includes si$ht& hearin$ of e#ent and *immediate aftermath/6. Ather rele#ant cases! Alcock v Chief Constable of South 3orkshire Police $%&&4( @in$apore 8ase! Pang 5oi #a v Lim D6oe Phing $%&&2( (Benny, Pg 484, 18-445) Don>related secondary #ictims! 1hite v Chief Constable of South 3orkshire Police $%&&7( o ?eld that claims only allo%ed if plaintiff %as %ithin area of physical dama$e and could reco#er on basis of bein$ an endangered primary victim. 'ord $li er in 6lcoc7 Chie% Consta1le o% !outh "or7shire Police (1..8)0 "8ases in %hich dama$es are claimed for directly inflicted in'uries of this nature may present $reater difficulties of proof but they are not& in their essential elements& any different from cases %here the dama$es claimed arise from direct physical in'ury and they present no #ery difficult problems of analysis %here the plaintiff has himself been directly in#ol#ed in the accident from %hich the in'ury is said to arise. In such a case he can be properly said to be the primary #ictim of the defendants ne$li$ence and the fact that the in'ury %hich he sustains is inflicted throu$h the medium of an assault on the ner#es or senses does not ser#e to differentiate the case& e<cept possibly in the de$ree of e#identiary difficulty& from a case of direct physical in'ury./ Sig"i4i#,"#e3 8laims of dama$es by! 2a6 Persons %ho %ere physically present but not in any close relations %ith any particular #ictim 2b6 Persons %ho ne% relati#es %ere at stadium& but DAT physically pro<imate in terms of space and time. 3oth claims %ere dismissed . not proximate enou$h. 9ust be both physically and emotionally pro<imate. 9hite Chie% Consta1le o% !outh "or7shire Police (1...)0 F,#'(! Policemen pro#idin$ security at ?illsborou$h 7ootball @tadium claimed dama$es for psychiatric trauma %hen failure of cro%d control caused more than 4L deaths and 1LLs of in'ured spectators. - .ge/e"'! 8laim dismissed despite physical proximity. Physical pro<imity insufficient as policemen %ere dealin$ %ith aftermath and not sufficiently pro<imate in terms of time. Sig"i4i#,"#e3 9ust be both physically and emotionally pro<imate. 8. +here dama$e caused is merely P1;: :8ADA9I8 LA@@. Ge"e!,% R %e! ;efuse reco#ery %hen theres no physical dama$e for fear of flood$ates. o Spartan Steel8 )urphy v /rentwood8 D # !states9 :T8:PTIAD@! E@#e$'io" 13 pure economic loss caused by negligent misstatements! #edley Byrne : Co 'td #eller : Partners 'td (1.24)0 (;e% to Benny 482<BP' =44)

Sig"i4i#,"#e! Plaintiff can also claim for pure economic loss caused by ne$li$ent statement %ithout any need for physical dama$e. F,#'(! Plaintiffs 2an ad#ertisin$ firm6 sou$ht ad#ice on financial position of a company 2:asipo%er Ltd6 from the defendants %ho %ere the ban ers of the company. Althou$h defendants furnished fa#ourable references& these %ere stipulated to be "%ithout responsibility/. An the stren$th of defendants response& plaintiff continued to %or for :asipo%er until :asipo%er collapsed and did not pay the plaintiff. Plaintiff sued Defendant 2the ban 6. - .ge/e"'! There %as a "special relationship/ bet%een defendant and plaintiff that $a#e rise to DA8 o%ed by defendant to plaintiff. Defendant %ould be held liable if not for disclaimer. Gi',% E%e/e"'( o4 #, (e o4 ,#'io"! 2a6 a special relationship 2b6 resultin$ from the the reasonable reliance by the plaintiff on the misstatement 2c6 Dote! the #oluntary assumption of responsibility by the defendant %ho made the misstatement. 8an also refer to Caparo >ndustries Dic7man 2abo#e6! "+hat can be deduced from the ?edley 3yrne case& therefore& is that the necessary relationship bet%een the ma er of a statement or $i#er of ad#ice 2*the ad#iser6 and the recipient %ho acts in reliance upon it 2*the ad#isee6 may typically be held to e<ist %here (1) the ad#ice is re)uired for a purpose& %hether particularly specified or $enerally described& %hich is made no%n& either actually or inferentially& to the ad#iser at the time %hen the ad#ice is $i#en( (+) the ad#iser no%s& either actually or inferentially& that his ad#ice %ill be communicated to the ad#isee& either specifically or as a member of an ascertainable class& in order that it should be used by the ad#isee for that purpose( (*) it is no%n either actually or inferentially& that the ad#ice so communicated is li ely to be acted upon by the ad#isee for that purpose %ithout independent in)uiry& and (=) it is so acted upon by the ad#isee to his detriment./ No' "e#e((,!0 for defendant to be in the profession of $i#in$ the type of ad#ice %hich is sub'ect of dispute. @ufficient if defendant has special knowledge or e:pertise that plaintiff relies on. ,sso Petroleum : Co 'td )ardon (1.?2)0 Benny, Pg 48?, 18-415

I4 'he!e i( , .i(#%,i/e!3 216 ;efer to 9isrepresentation Act! A&oi.,"#e o4 $!o&i(io" e@#% .i"g %i,bi%i'0 4o! /i(!e$!e(e"','io". 3. If a contract contains a term %hich %ould e<clude or restrict U 2a6 any liability to %hich a party to a contract may be sub'ect by reason of any misrepresentation made by him before the contract %as made( or 2b6 any remedy a#ailable to another party to the contract by reason of such a misrepresentation&

that term shall be of no effect e:cept in so far as it satisfies the re;uirement of reasona1leness as stated in section %% $%( of the <nfair Contract *erms Act & and it is for those claimin$ that the term satisfies that re)uirement to sho% that it does. 226 ;efer to 18TA! Distin$uish bet%een limitin$Ie<cludin$ your liability and try to set scope of obli$ation. Is clause limitin$ liability for misrep or merely sayin$ representor does not o%e representee anythin$, Dote! often no contract bet%een representor and representee. ;epresentor $ets nothin$ bac in e<chan$e for potential liability . understandable to limit liability, Lord Priffiths In !mith ,ric ! Bush (1..5)0 (Benny 48., 18-41=) Sig"i4i#,"#e! disclaimer must satisfy 18TA Did the parties ha#e e)ual bar$ainin$ po%er, +as it reasonably practicable to obtain the ad#ice from an alternati#e source& ta in$ into consideration the costs and time in#ol#ed, ?o% difficult %as the tas bein$ underta en& for %hich liability %as bein$ e<cluded, "+hat are the practical conse)uences of the decision on the )uestion of reasonableness, This must in#ol#e the sums of money potentially at sta e and the ability of the parties to bear the loss in#ol#ed& %hich in its turn& raises the )uestion of insurance./ @eill '( in (ames )c@aughton Paper Aroup 'td #ic7s 6nderson : Co (1..1)0 Sig"i4i#,"#e! matters *%hich are li ely to be of importance in most cases in reachin$ a decision as to %hether or not a duty of care e<ists. 216 Purpose for %hich statement %as made 226 Purpose for %hich statement %as communicated 236 ;elationship bet%een ad#iser& ad#isee and rele#ant 3rd party 246 @iSe of any class to %hich ad#isee belon$s 2E6 state of no%led$e of ad#iser 2G6 ;eliance by ad#isee NOTE! +hen alle$ed ne$li$ent misstatement relates to a ne$li$ent failure by the defendant to $i#e ad#ice . i.e. ne$li$ence by eepin$ silent& %hen the defendant ought to have spo en up. !ee Bai #ing Cotton )il 'td 'iu Chong #ing Ban7 -1.82/ Sig"i4i#,"#e3 @u$$ests that liability for such silence can only be made out if the defendant %as under a duty to spea in the first place. o @ince in most cases& there %ill be no duty on the defendant to spea out& e<cept in situations of an especially stron$ relationship of trust and reliance bet%een the plaintiff and the defendant& it is li ely that such an omission %ill "o' $i#e rise to tortious liability. o Ruery %hether this aspect of the la% has chan$ed& follo%in$ the enactment of the 8onsumer Protection 27air Tradin$6 Act.

E@#e$'io" +3 pure economic loss caused by negligence Cith regard to real property damage0 ;:7:; TA! RSP Architects Planners !ngineers v "cean #ront Pte Ltd$%&&'( ,". RSP Architects Planners !ngineers v )anagement Corporation Strata *itle Plan +o %,-. $=!astern Lagoons>( 2A3A0:6 o reco#ery is $enerally allo%ed but basis %ith respect to DA8 is unclear. 31T clearly limited to cases of dama$e to buildin$sIreal property as a result of ne$li$ence. )an B:9 Diesel !, 6sia PB Bumi >nternational Ban7ers (8554) (61o e) In "!astern Lagoons/& "BTChe in#estment in real property is li ely to represent a si$nificant& if not the most si$nificant& in#estment in an indi#iduals lifetime J The scale of in#estment in money terms is far $reater than %hat is in#ol#ed in the ac)uisition of a chattel. @econdly& the permanence of the structure may $i#e rise to a $reater e<pectation than a chattel. +e thin those ar$uments apply a fortiori in @in$apore& %here land is not only scarce but e<pensi#e./ No'e! Acean 7ront . de#eloper o%ed mana$ement committee duty of care :astern La$oon . architect o%ed mana$ement committee duty of care.

(+) ;REACH OF DUTY OF CARE

1. E(',b%i(h 'he (',".,!. o4 #,!e e@$e#'e. o4 'he .e4e".,"' V an ob'ecti#e standard ascertained& $enerally spea in$& by reference to the standard of a person of ordinary prudence or a person usin$ ordinary care and skill. @ome factors that the court %ould consider in determinin$ the standard e<pected of the defendant! 1. Li elihood of in'ury( 2. @eriousness of the in'ury( 3. 8ost of a#oidin$ the ris ( etc. The $%,i"'i44 has the burden of pro#in$ that there %as a breach. This can be done in t%o %ays! 1. A#' ,% $!oo4( or 2especially in #ehicle accident cases6& 2. Doctrine of res ipsa loDuitur 2"the thin$ spea s for itself/6& %here the court %ill presume that the defendant has breached the duty of care if! 2a6 the defendant %as in control of the thin$ %hich caused the accident( and 2b6 the cause of the accident must also be unknown. ;es ipsa loDuitur is a rule of evidence only and& the defendant can displace the effect of the doctrine by adducin$ evidence consistent with the absence of negligence on its part. ELEMENTS OF NEGLIGENCE (*)3 DAMAGE A. C, (,'io" 1. "31T>7A;/ T:@T. +hilst the ne$li$ent act %hich constitutes the breach of the duty of care / (' be 'he $!o@i/,'e #, (e of the dama$e& it need not necessarily be the sole or dominant cause of the plaintiffs loss or dama$e 31T it must ha#e materially contributed to the dama$e. *airchild Alenha en *uneral !er ices 'td -8558/0 (Pls re%er to seminar outline) Sig"i4i#,"#e! Application of "3ut>7or/ Test to pro#e causation. De$li$ence need not be sole or determinant cause.

F,#'(! Plaintiff e<posed throu$h the ne$li$ence of his employers to asbestos dust. Althou$h scientific no%led$e in this area is still incomplete& %e no% that "mesothelioma&/ a type of cancer& is most often caused by e<posure to such dust . in fact& it can be tri$$ered by e#en a sin$le asbestos fibre contaminatin$ a "mesothelial cell./ Ance e<posed to asbestos fibre o#er a period of time& it is therefore impossible to say %hen& or %hich fibre precisely %as the cause of the cancer. This may not be an insurmountable problem %here the plaintiff can demonstrate that he %as only e:posed to asbestos through his employment %ith one ne$li$ent employer. ?o%e#er& there may be difficulties %hen there is more than one such ne$li$ent employer since any one of such e<posures could ha#e caused the disease. Plaintiff in this case %as e<posed t%ice . by 1st defendant and 2nd defendants. 8annot determine %hich caused cancer. - .ge/e"'! Initially . failed since he couldnt pro#e %hich 'ob had been "but for/ cause of cancer. 8ourt of Appeal! Decided that in these circumstance& plaintiff could succeed as lon$ as he can demonstrate %i9e%ihoo. o! !i(9 of de#elopin$ mesothelioma h,. /,'e!i,%%0 i"#!e,(e. due to the ne$li$ence of a particular employer. Duty of :mployer! not merely to ta e reasonable care to pre#ent its employees from bein$ in'ured& but in the conte<t of mesothelioma from asbestos e<posure& employers %ere under a duty to protect their employees& "a$ainst the !i(9 of contractin$ J mesothelioma by e<posure to asbestos./ All plaintiffs employers %ere 'ointly liable. No'e! This case increased responsibilities of employers. :mployers dont only ha#e DA8 to pre#ent in'ury but also to $!e&e"' i"#!e,(e. !i(9 of in'ury. Technically employers should only be responsible for losses associated for increased ris and not the in'ury or disease itself. ;efer to! )cAhee @ational Coal Board E1)2*F for this type of )uantification. F,#'(! 9cPhee& a %or er in a bric iln& contracted dermatitis due to e<posure to bric dust. Althou$h this %as ine#itable& $i#en the nature of his %or & his employer failed to pro#ide any sho%er facilities for their %or ers at the end of their shifts . and there %as e#idence to pro#e that the ris of contractin$ dermatitis %ould ha#e been reduced had this been done concept of novus actus intervniens 2an inter#enin$ act6 may brea the chain of causation. 1. some natural e#ent independent of human a$ency 2. an act 2or omission by a 3rd party6 3. conduct of claimant himself. ;. Re/o'e"e(( o4 D,/,ge

USE TEST3 9agon )ound (@o 1) (1.21) on *reasonably foreseeability defendant only liable for dama$e that is reasona1ly %oreseea1le. o 2contrast %ith special situations of fraudulent misrepresentation or deceit6 o Anly important that the T-P: of dama$e is foreseeable& DAT :TT:DT. Dote! o Despite the test of reasonable forseeability& the plaintiff must ta e the #ictim as he or she finds him or her. 2I.:. defendant responsible e#en if plaintiff has

*latent physical or psycholo$ical predisposition to particular in'ury or illness./6This is called the thin-s7ull or egg-shell s7ull rule.
1

Page !mith! "e$$shell personality/ only in reference to "primary #ictims/ !mith 'eech Brain : Co 'td 214G26! F,#'(! plaintiff contracted cancer due to a burn to his lip caused by the defendants ne$li$ence - .ge/e"'! the cancer arose because the plaintiff had a pre>e<istin$ susceptibility to cancer& but this did not e<cuse the defendant from bein$ responsible for the full e<tent of the dama$e caused by his ne$li$ence. 8ould conflict %ith +a$on 9ound rule %hen type of loss is not reasonably foreseeable but #ictims had pre>e<istin$ disposition to this type of loss. o 3ut no case currently to decide ho% conflict should be sol#ed. C. MITIGATION Defendant only liable to the plaintiff in relation to losses suffered by the defendant& pro#ided that such losses are not readily a oida1le by the plaintiff. o plaintiff cannot unreasonably inflate his losses by actin$ in an e<tra#a$ant manner& and then see to reco#er such inflated losses from the defendant Patel #ooper : (ac7son (a %irm) -1.../ F,#'(! 9r and 9rs Patel en$a$ed the firm of ?ooper F Wac son to carry out a sur#ey of a property he intended to ac)uire. Patels ne#er mo#ed in but rented alternati#e accommodations. ?o%e#er& they had to continue payin$ the mort$a$e and other related payments due on the property to his loan pro#ider. Protracted ne$otiations %ith ?ooper F Wac son as %ell as the loan pro#ider ensued& but it %as clear that as at 1443& all such ne$otiations had failed. As at the date of the hearin$& the property %as still o%ned by the Patels& and had not been sold. - .ge/e"'! @ur#ey ne$li$ently done& and the house %as uninhabitable. ?ooper F Wac son o%ed the Patels a duty to ta e reasonable care in the performance of this sur#ey& both in contract& and in tort. The 8ourt of Appeal held that the Patels could reco#er the follo%in$ from ?ooper F Wac son! 2i6 reasonable costs of e<tricatin$ himself from the purchase includin$ the costs of alternati#e accommodation until such time as the house %as sold and another ac)uired in its place( 2ii6 $eneral dama$es of X2&LLL each to compensate them for li#in$ in relati#e discomfort. ?o%e#er& the 8ourt of Appeal .i(,%%o5e. #%,i/( for an indemnity for the mort$a$e and other related payments %hich the Patels had to pay on the property& because it had been found that had the plaintiffs been properly ad#ised by the defendants& they %ould ha#e purchased another property and incurred similar payments and %as e<penditure that they %ould ha#e incurred in any e#ent.

In seminar outline it is Pa$e # +hite 2P$ 146 but I cant find such a case so I assume hes tal in$ about Pa$e # @mith %hich is discussed abo#e based on "reasonable foreseeability/ in#ol#in$ primary #ictims.

Mi'ig,'io"! Althou$h the plaintiffs acted reasonably in not puttin$ the house up for sale by auction until after attempts to promote a settlement had pro#ed to be unsuccessful they ou$ht to ha#e miti$ated their loss by sellin$ %hen ne$otiations bro e do%n . as a result& the "loss/ in terms of the rent they had to pay for alternati#e accommodation incurred A7T:; that date in 1443& %as not reco#erable. D. DEFENCES

1. I%%eg,%i'0 I ,x turpi causa Pitts #unts (1..1)0 Sig"i4i#,"#e! -:@ to ille$ality F,#'(! Plaintiff %as pillion passen$er on motorcycle %hich %as in#ol#ed in accident. 1st defendant . personal representati#e of 2deceased6 rider of motorcycle 2nd defendant . other #ehicle in#ol#ed in accident. 3oth plaintiff and rider had been drin in$ prior to accident and plaintiff ne% rider didnt ha#e a dri#in$ license& %as uninsured and still encoura$ed him to dri#e in rec less and dan$erous manner %hich %ould ha#e resulted to manslau$hter is someone else had been illed. - .g/e"'! Plaintiff& on $rounds of public policy %as not allo%ed to reco#er any compensation. Plaintiff and rider %ere in#ol#ed in "'oint ille$al enterprise/ $oi #an !un Bee #ua )eng (1..1)0 (BP' =44) Sig"i4i#,"#e! DA to ille$ality. F,#'(! defendant ar$ued that one of the plaintiff passen$ers 2a 9alaysian6 did not possess a #alid %or permit at time of accident so duty of care o%ed. - .g/e"'! plaintiff should be allo%ed to claim a$ainst defendant but )uantum of dama$es a%arded %as affected. 3ased on "an estimate J %hat he %ould ha#e earned in 9alaysia had there been no accident./ Also a$ainst public policy to a%ard full dama$es. +. Go% "',!0 A(( /$'io" o4 Ri(9 I Eolenti non %it injuria o concept of consent or #oluntary assumption of ris o plaintiff must ha#e fully no%n as %ell as appreciated the e<tent of the ris and also consented as %ell as #oluntarily accepted the said ris as %ell. o @ort of total defence. Dont mi< %ith 8ontributory De$li$ence %hich is only a partial defence. *. Co"'!ib 'o!0 Neg%ige"#e o Does not necessitate a duty of care o%ed by the plaintiff to the defendant.