The Law of Torts in Singapore

502 Pages·2016·138.97 MB·English

by  Gary Chan Kok Yew

THE IAW OF TORTS
IN SINGAPORE
Second Edition
ABOUT THE LAW PRACTICE SERIES
The series aims to publish seminal works on key subject areas in legal
practice.
Corporate Law (2015)
Competition Law and Policy in Singapore (2nd Ed) (2015) THE LAW OF TORTS
Personal Property Law (2014)
IN SINGAPORE
Intellectual Property Law of Singapore (2013)
Principles of Civil Procedure (2013)
The Law of Contract in Singapore (2012)
Second Edition
A Treatise on Singapore Constitutional Law (2012)
The Cri.mirial Procedure Code of Singapore - Annotations and
Commentary (2012)
The Law of Torts in Singapore (2011)
The Law of Agency (2010) Gary Chan Kok Yew
LLB (Hons), MA (SoutheastAsian Studies)
Corporate Governance - Practice and Issues (2010)
(National University of Singapore),
Competition Law and Policy in Singapore (2009) BA (Philosophy), LLM (Merit) (University of London);
Sentencing Principles in Singapore (2009) Advocate and Solicitor {Singapore),
Auorney and Counselor-at-Law (New York};
Modern Advocacy-Perspectives from Singapore (2008) Associate Professor of Law, School of Law,
Ethics and Professional Responsibility - A Code for the Advocate Singapore Management University
and Solicitor (2007)
LeePeyWoan
LLB (Hons) (King's College, University of London),
BCL (University of Ox.ford);
Barrister (Middle Temple),
Advocate and Solicitor (Singapore);
Associate Professor of Law, School of Law,
Singapore Management University
It\
Academy
~ Publishing
2016
Academy Publishing is a division of the Singapore Academy of Law.
The Singapore Academy of Law is the promotion and development agency
for Singapore's legal industry. Its vision is to make Singapore the legal hub of
Asia. It aims to drive legal excellence through developing thought leadership, Preface
world-class infrastructure and legal solutions. It does this by building up the
intellectual capital of the legal profession by enhancing legal knowledge,
raising the international profile of Singapore law, promoting Singapore as a
centre for dispute resolution and improving the efficiency of legal practice
through the use of technology. More information can be found at
www.sal.org.sg.
Tort law has continued to develop apace in the intervening period
since the first edition of the book was published in 2011: new torts
DISCLAIMER have emerged, existing torts re-formulated, and important
Views expressed by the authors are not necessarily those of Academy
clarifications made on the scope of specific torts and doctrines.
Publishing nor the Academy. Whilst every effort has been made to ensure
Unsurprisingly, the Singapore judiciary has been a major contributor
that the information contained in this work is correct, the authors, Academy
to the growth of local tort jurisprudence. Of particular significance is
Publishing and the Academy disclaim all liability and responsibilil)• for any
error or omission in this publication, and in respect of anything, or the the Court of Appeal decision in See Toh Siew Kee v Ho Ah Lam
consequences of anything, done or omitted to be done by any person in Ferrocenzent (Pte) Ltd which subsumed the law on occupiers' liability
reliance, whether wholly or partially, upon the whole or any pan of the under the tort of negligence. Consequently, occupiers' liability is no
contents of this publication. longer considered in a separate chapter but is examined as a specific
aspect of duty of care in chapter 4. At the same time, chapter 4 has
been re-organised by carving out the discussion on the impact of
COPYRIGHT
contractual and statutory contexts on duty of care. This topic, which
© 2016 Gary Chan Kok Yew and Lee Pey Woan.
Published by Academy Publishing under exclusive licence. has received considerable attention both locally and abroad, is now
considered in chapter 5. The total number of chapters remains at 20.
This edition also considers other significant decisions on the law of
All rights reserved. No part of this publication may be reproduced, stored in negligence. These include:
any retrieval system, or transmitted, in any form or by any means, whether
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• Ramesh s/o Krishnan v AXA Life Insurance Singapore Pte Ltd (duty
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Singapore Academy of Law
references); and
1 Supreme Court Lane, Level 6
• Go Dante Yap v Banlt Austria Creditanstalt AG and Deutsche Bank
Singapore 178879
AG v Chang Tse Wen (duties of banks with respect to investment
Tel No: ([phone] Fax No: ([phone]
E-mail: [e-mail] and other advice).
Developments in defamation and malicious falsehood are marked by
,, .. 'll''lT'"'_, the Court of Appeal's decision in Low Tuck Kwong v Sukamto Sia,
which laid down important guidelines on the elements, defences and
remedies of these torts. Interesting and novel issues involving
defamation via new media (blog and Facebook postings) were also
considered in GoU:len Season Pte Ltd v Kairos Singapore Ho/,dings Pte Ltd
9 789810 977092 and Zhu Yong Zhen v ATA Singapore Pte Ltd (chapters 12 and 13).
v
Preface
In Staywell Hospitality Group Pt)' Ltd v Starwood Hotels & Resorts
Worldwide, Inc, the Court of Appeal revisited the contentious issue of
whether pre-trading activity would generate the requisite goodwill for
purposes of passing off (chapter 14). In the burgeoning area of
economic torts, EFT Holding. Inc v Marinteknik Shipbuilders (S) Pte Ltd
has provided important clarifications on the scope of unla,'lful means Contents
conspiracy (chapter 15). The landmark case of Skandinaviska Enskilda
BanllBn AB (Puhl), Singapore Branch v Asia Pacific Brewems (Singapore) Pte
Ltd on the "close connection" test in vicarious liability was decided
shortly before the first edition went to print, and we are happy to now
include it in this edition (chapter 19).
On the legislative front, increased urbanisation and populati~n Page
density have precipitated two new torts. The statutory tort of
Preface v
harassment under the Protection from Harassment Act allows victims
Table ofC ases xxiii
of harassment to claim damages from the perpetrators (chapter 2);
Table ofL egislatum xciii
whilst the Community Disputes Resolution Act 2015 has ushered in a
Other Sources Referred 1o CV
new statutory tort of interference with a person's enjoyment or use of
his place of residence (chapter 10).
Chapter I Introduction to Law of Torts I
Where relevant, we have also highlighted important developments
in English tort law. These include James Rhodes v OPO (clarffying the By Gary Chan
scope of the rule in Wilkinson v Downton in chapter 2); Lawrence v Fen A Introduction l
Tigers Ltd (touching on a broad range of issues in nuisance in B. Historical background 2
chapter 10); as well as Fish & Fish Ltd v Sea Shepherd UK (~n joint C. Distinction between law of torts and other areas of law 4
tortfeasance in chapter 18). 1. Tort versus criminal law 4
This second edition would not have materialised without the 2. Ton versus contract law 6
assistance and support of many people. We thank our colleagues, 3. Tort versus restitution 7
friends and students for their kind and constructive feedback and for 4. Tort versus equity 8
highlighting to us the errors and ambiguities in the first edition. D. Tort theories 9
We are also grateful to the team at Academy Publishing for L Corrective justice 9
rendering invaluable editorial assistance with much dedication and 2. Distributive justice 12
meticulousness. Finally, we wish to express our sincere gratitude to 3. Combination of corrective and distributive justice 14
The Honourable Judge of Appeal Justice Andrew Phang Boon Leong 4. Retributive justice 15
without whose support and encouragement this book would not have 5. Deterrence 15
been written. 6. Law and ecor1omics 17
7. Moral and ethical considerations 20
Gary Chan and Lee Pey Woan 8. Protection from infringement of lights 22
12 November 2015 E. Classifications within law of torts 24
1. Conduct of defendant 24
(a) Acts and omissions 24
(b) State of mind 25
(i) Intention 25
(ii) Negligence 26
(iii) Strict liability or near strict liability 27
2. Types of protected interests 28
vi vii
Cont enl s Ccntenls
Page Page
F. Sources of law of torts in Singapore and relevance of (c) Fair,justand reasonable or public policy 101
precedents from England and Commonwealth 30 (i) Excessive policy making by judges 102
(ii) Floodgates arguments and indeterminacy of
Chapter 2 Intentional Torts to the Person 35 liability 103
By Gary Chan (iii) Defensive conduct and availability of
A. Introduction 35 resources 104
l. Intention and negligence 36 (iv) Compromising the objectives of public
B. Battery 39 good and social utility 105
1. Direct physical contact with plaintiff 39 (v) Contractual risk allocation and insurance 105
2. Intentional act of defendant 41 (vi) Statutory duties, purposes and remedies 105
3. Unjustified physical contact 42 (vii) Other policy considerations 106
C. Assault 43 (d) Foreseeability, proximity and policy: Their
D. False imprisonment 45 inter-relationships 106
l. Direct act 46 4. Development of the Singapore approach 108
2. Intentional act 47
Chapter 4 Duty of Care: Ordinary Duties, Special
3. Confinement or restraint within particular area
delimited by defendant 49 Scenarios and Parties 113
E. Defences to trespass to person 51 By Gary Chan
1. Consent 52 A. Introduction 113
(a) Meaning and scope of consent 52 B. Ordinary and specific scenarios 114
(b) Patient's right to refuse medical u·eatrnent 54 I. General or ordinary duties 114
(c) Withdrawal of consent 58 (a) Negligent act causing personal injury 114
2. Defence of necessity 60 (i) Road users and road accidents 115
3. Self-defence 61 (ii) Manufacturers, retailers and distributors of
4. Defence of lawful arrest and detention 62 products 116
F. Rule in Wilkinson v Dorunton 65 (iii) Employers' duties towards employees at the
G. Statutory tort of harassment 69 workplace 116
(iv) Occupiers' duty with respect to personal
Chapter3 Tort of Negligence: Overview and General injuries on premises 119
Duty of Care 77 (v) Other duties arising from claims for
By Gary Chan personal injuries 123
A. Introduction 77 (b} Negligent act causing property damage 124
B. Introducing legal requirements of negligence action 79 2. Special mechanics of harm 126
c. Duty of care: General principles and concepts 80 (a) Real omissions 126
(i) Omission of defendant to protect plaintiff
I. Introducing framework for duty of care: Spandeck
from harm 128
En.gi.ncering (S) Pte Ltd v Defence Science & Technowgy
Agency 81 (ii) Omission to prevent third parties from
2. Historical background and English common law of causing harm to plaintiff 129
negligence 82 3. Special type of harm 135
3. Explaining elements of duty of care 89 (a) Pure economic losses 135
(i) Negligent misstatements causing economic
(a) Factual foreseeability and reasonable
foreseeability 89 losses 137
(b) Proximity 93 (ii) Negligent acts causing economic losses 148
viii ix
Contents Contents
Page Page
(b) Personal injury and property damage arising from (e) Reliance 215
negligent misstatements 159 (f) Control exercised by d1e defendant 217
(c) Psychiatric harm 162 (g) Vulnerability and dependence of the plaintiff
(i) Negligent acts causing psychiatric harm 162 vis-<l-vis the defendant 218
(A) First proximity requirement: Class of (h) Proximity may arise outside of statutory
persons (or relational closeness) 165 framework 218
(B) Second proximity requirement: 2. Policy considerations 219
Proximity to accident in time and (a) Criminal sanctions for breach of statutory duty
space (or temporal closeness) 166 and the lacuna in statutes 219
(c) Third proximity requirement: Means (b) Indeterminacy ofliability 220
by which shock was caused (c) Conflicting duties owed to different parties 220
(or perceptional closeness) 167 (e) Availability of alternative statutory remedies and
(ii) Negligent statements causing psychiatric processes 222
harm 176 (f) Interaction between the first and second limbs of
(d) Special harm: Wrongful birth and wrongful life the Sparuieck framework 222
claims 178 (g) Where common law duty of care is inconsistent
(i) Wrongful birth - Claim by mother 178 with statutory scheme 223
(ii) Wrongful life - Claim by child 181 (h) Statutory immunity 224
c.
Special defendants 183 D. Interaction of statutory and contractual frameworks 224
1. Public authorities 183
2. Lawyers 187 Chapter6 Tort of Negligence: Breach of Duty 227
By Gary Chan
Chapter 5 Duty of Care: Contractual and Statutory A Introduction 227
Frameworks 193 B. Standard of care: General principles 228
By Gary Chan C. Factors to determine standard of care 232
A. Introduction 193 L Likelihood and risks of harm 233
B. Contractual framework and duty of care 194 2. Extent of harm 235
1. Concurrent liability in contract and tort 195 3. Costs of avoiding harm 236
2. Voluntary assumption of responsibility and other 4. Other factors 238
proximity factors 196 (a) Defendant's conduct or activity 238
3. Express and implied contractual duty and duty of care 198 (b) Hazard or danger posed to plaintiff 239
4. Contractual terms concerning the nature of the (c) Reliance on third parties 240
relationship between the parties 200 (d) Industry standards or common practice 240
5. Alternative means of resolution of disputes under the (e) Standard of care of employers towards employees 244
contract 202 (f) Public authorities 245
6. Exemption of liability clauses 203 (g) Professionals 246
7. Insurance clauses 204 D. Conflicting expert evidence on standard of care: Bolam and
8. Duty of care inconsistent with contractual framework 205 Bolitho 247
C. Statutory framework and duty of care 207 E. Professionals and professional standards and practices 254
1. Proximity 210 l. Medical doctors and alternative medical practitioners 257
(a) The scope of statutory duty 210 2. Lawyers 259
(b) Type of damages recoverable under the statute 211 3. Statutory auditors 263
(c) The scope of protected class of persons 211 F. The rule of res ipsa loqv.itur 264
(d) Voluntary assumption of responsibility 214
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Contents Contents
Page Page
2. Specific scenarios 363
Chapter7 Tort of Negligence: Damage 271
3. Apportionment of liability 368
By Gary Chan
A. Introduction 271 Chapter 9 Breach of Statutory Duty 373
B. Causation of damage 272
B)' Gary Chan
1. Burden of proof in causation 275
A. Introduction 373
(a) "But for" test 277
B. Elements of tort of breach -0f statutory duty 375
(i) Limits of "but for" test 279
1. When does a private right of action arise 376
(b) Material contribution to damage 282
(a) Protection of limited class 378
(c) Material contribution to risks of damage 285
(b) Parliament's intention to confer private right of
(d) Loss of chance 292
action 379
(e) Causation in law: Successive torts and
(i) Where statute provides for criminal
non-tortious events -Jobling triumphs Bakerv
sanctions in event of contravention of
Wuloughby in Singapore 298
statutory duty 380
(f) Causation in law: Novus actus interveniens 301
(ii) Where statute provides for alternative
(i) Third-party act 302
remedies 382
(ii) Plaintiff's own act 305
(iii) Where statute does not provide for any
(iii) Natural causes 309
remedy or enforcement of duty 383
C. Remoteness of damage 311
(iv) Where statute provides for wide discretion
1. General principles 312
in manner of carrying out statutory duty 384
2. Special circumstances of plaintiff ("egg-shell-skull rule") 319
(v) Where Parliament could not have foreseen
(a) Physical circumstances 319
circumstances in which harm was suffered
(b) Financial circumstances 321
by plaintiff 385
3. Scope of duty, causation and remoteness: Banque
C. Statutory duty imposed on defendant 386
Bruxelks again and]S/ Shipping 322
D. Breach of statutory duty 388
E. Causation of damage 390
Chapter8 Tort of Negligence: Defences 329 F. Damage to be within scope of protection under statute 391
By Gary Clum G. Breach of statutory duty versus negligence 394
A. Introduction 329 H. Selected types of statutes 398
B. Defence of ex turfri. causa 330 1. Workplace safety and health statutes 398
c. Defence of vol.enti non fu injuria 339 2. Statutes relating to use of motor vehicles and insurance
I. Participation in inherently dangerous activities 341 policies and road traffic statutes 401
2. Drink driving 342 I. Defences 403
3. Sporting events and competitions 343 1. Volenli non fit injuria 403
4. Rescue 344 2. Contributory negligence 403
5. Employment 344 3. Ex turpi causa 405
6. Prisoners and suicide 345 4. Defence absolving employer's vicarious liability fol·
7. VoLmti defence and notices exempting liability 346 absolute breach of statutory duty 406
D. Exemption of liability 346
E. Defence off orce majeure 357 Chapter 10 Interference ·with Land 407
F. Defence of inevitable accident 358
By Gary Chan
G. Contributory negligence 359 407
A. Introduction
1. Some general principles 361 407
B. Trespass to land
xii xiii
Contents Contents
Page Page
l. Defendant's actS of interference 408 (i) Bailment 474
2. Voluntary and direct acts 410 (ii) Finders 475
3. Plaintiffs possession ofland 411 (iii) Possession by wrongdoers 477
4. Defences 413 (b) Right to immediate possession 479
5. Remedies 415 4. Subject of conversion 482
C. Nuisance 420 (a) Money 482
l. Conditions and activities interfering with plaintiff's use (b) Documentary intangibles 483
and enjoyment of land 422 (c) Non-documentary intangibles 484
2. Unreasonable interference 424 5. Defence 486
(a) Unsafe use 424 (a) Mistake 486
(b) Public benefit and social costs 425 (b) Contributory negligence 486
(c) Locality 425 ( c) ]us tertii 486
(d) Malice 426 6. Remedies 487
( e) Practicability of avoiding interference 427 (a) Damages 487
3. Who can sue 428 (b) Causation 494
4. Who can be sued 429 (c) Remoteness 495
5. Causation and foreseeability of damage 433 (d) Duty to mitigate 495
6. Defences 434 C. Detinue 496
7. Remedies 438 D. Trespass to goods 496
8. Nuisance versus negligence 443
D. Rule in Rylands v Fktclter 445 Chapter 12 Tort of Defamation: Establishing a Prima
1. Non-natural use of land 446 FacieCase 499
2. Escape of the "thing" 448
By Gary Chan
3. A "thing" likely to do mischief if it escapes 449 A. Introduction 499
4. Who can sue 450 l. Libel versus slander - The distinction 500
5. Who can be sued 451 2. Criminal defamation versus civil defamation 502
6. Causation and foreseeability of damage 451 B. Elements of a prima facie case of defamation 503
7. Defences 452 1. Whether statement is defamatory in nature 504
8. Remedies 453 (a) The legal tests 505
9. Rule in Rylands v Fktclzer versus nuisance 454 (b) Ascertaining defamatory meaning 511
(i) Natural and ordinary meaning 512
Chapter 11 Interference with Goods 459 (ii) True innuendo 515
By Lu Pey Woan (c) Different levels of defamatory meaning 517
A. Introduction 459 (d) Interpreting defamatory statements as a whole 520
B. Conversion 459 (e) Application for preliminary determination of
1. Conduct that constitutes conversion 460 defamatory meaning 520
(a) Taking or asportation 463 2. Reference to plaintiff 521
(b) Receipt and detention 463 (a) Group or class defamation 522
( c) Delivery 464 3. Publication 526
(d) Disposition 464
(e) Damage and destruction 465
2. Innocent intermediaries 465
3. Who may sue 469
(a) Actual possession 472
xiv xv
Contents
Contents
Page Page
Chapter 13 Tort of DefaJ11ation: Defences and Remedies 539 c. Remedies 589
B)' Gary Chan l. Damages 589
(a) Basic compensatory damages 590
A. Introduction 539
(b) Aggravated damages 594
B. The defences 539
(c) Exemplary damages 595
1. Justification 539
2. Fair comment 544 (d) Mitigation of damages 596
2. Injunctions 598
(a) Statement is in nature of comment 545
(b) Comment must be based on true facts 547
Chapter 14 False Representations 601
(c) Comment must be fair 549
(d) Comment must relate to matters of public interest 550 By Gary Chan and Lee Pt:y Woan
(e) Fair comment may be defeated by malice 551 A. Introduction 601
3. Absolute privilege 554 B. Deceit 601
(a) Parliamentary proceedings 555 1. Whether defendant's representation was false 602
(b) Judicial proceedings 556 2. Knowledge of falsity or recklessness as to uuth or
(i) Meaning and scope ofj udicial proceeding 557 otherwise of statement 605
(ii) Statements made for purpose of and prior 3. Whether representor intended representation to be
to judicial proceeding 558 acted upon 607
(c) Executive matters 561 4. Whether plaintiff acted on or was induced by
(d) The Riddick principle 561 representation 608
4. Qualified privilege 562 5. Whether plaintiff suffered damage 609
(a) Duty-interest test 563 6. Burden of proof 610
(b) Protection of self.interests 567 7. Quantification of damages 611
(c) Fair and accurate reports of parliamentary and 8. Defences 613
c. Malicious falsehood 614
judicial proceedings at common law 568
(d) Statutory qualified privilege 568 I. Publication of falsehood 615
(e) Ancillary or derivative privilege 571 2. Malice 618
(f) Qualified privilege may be defeated by malice 572 3. Causation of damage 620
(i) Defendant actuated by improper or ulterior 4. Remedies 620
5. Malicious falsehood and defamation 623
motive 572
(ii) Defendant did not honestly believe D. Passing off 624
I. Goodwill 624
statement was true or was reckless as to
(a) Distinctive or descriptive? 625
truth of statements 573
(g) Meaning of malice in qualified privilege different (b) Secondary meaning 627
(c) Distinctive name becoming descriptive 628
from malice in fair comment 574
(h) No transfer of malice 576 (d) Getup 629
(i) Applicability of public interest defence in (e) Proof of goodwill 631
2. Misrepresentation 634
Singapore 576
5. Innocent dissemination 583 (a) Types of misrepresentations 635
6. Statutory defence for network service providers which (i) Misrepresentation as to source 635
(ii) Misrepresentation as to quality 638
merely provide access to third party materials 584
7. Offer of amends 585 (iii) Misrepresentation as to connection 638
8. Assent or consent by plaintiff 586 (b) Is misrepresentation deceptive? 639
xvi xvii
Contents Contents
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(c) Parallel imports 644 C. Developments in England and Commonwealth on protection
(d) Instruments of deception 645 of privacy interests 711
3. Damage 646 D. Arguments for and against a tort of privacy 716
1. Gaps in existing causes of action fo1· protection of
Chapter 15 Economic Torts 651 privacy 717
By Lee Pey Woan 2. Statutory provisions, regulations, rules and codes and
A. Introduction 651 danger of parliamentary inertia 718
B. Inducing breach of contract 653 E. Issues relating to development of tort of privacy 724
1. Knowledge and intention 655 l. What is private information? 724
2. Procurement 659 2. When are privacy rights infringed? 728
(a) Direct persuasion or inducement 659 3. Right of privacy for corporations? 729
(b) Prevention and indirect intervention 660 4. Defence of public interest 730
(c) Inconsistent dealings 662 5. Remedies 731
3. Breach 663
Chapter 17 Abuse of Process and Power:
4. Damage 664
Malicious Prosecution and Misfeasance in
5. Justification 664
Public Office 737
C. Inducing breach of other obligations 665
D. Causing loss by unlawful means 666 By Gary Chan
1. Intention 668 A. Introduction 737
2. Unlawful means 670 B. Malicious prosecution 737
E. Intimidation 674 1. Plaintiff was prosecuted by defendant 739
I. Threat 675 2. Prosecution was in plaintiff's favour 742
2. Unlawful conduct 675 3. Prosecution \Yas without reasonable and probable cause 742
3. Two-and three-party liability 677 4. Prosecution was malicious 746
4. Justification 679 C. Tort of misfeasance in public office 747
F. Conspiracy 679 1. Act done or decision by public body or office 749
1. Conspiracy by lawful means 680 2. State of mind of defendant 750
(a) Combination 681 3. Foreseeability versus probability of harm 751
(b) Predominant purpose to injure 683 4. Proof of actual damage 752
(c) Damage 684
2. Conspiracy by unlawful means 685 Chapter 18 Parties, Joint Torts and Personal Liability for
(a) Combination 685 Torts 753
(b) Intention 687 By Gary Clum and Lee Pey Woan
(c) Unlawful means 690 A. Introduction 753
B. The parties 753
Chapter 16 Protection of Privacy Interests in Tort 697 I. Government 754
By Gary Chan. 2. Corporations 758
A. Introduction 697 3. General partnerships and limited liability partnerships 760
8. Action based on breach of confidence 703 4. Unincorporated bodies 760
1. Quality of confidence 704 5. Mentally incapable or disordered persons 761
2. Obligation of confidence 707 6. Parents and children 761
3. Unauthorised use 708 7. Deceased persons and estates 763
4. Defences 710
xviii xix