Tort of Negligence – Negligent in Person/Property

The 1st issue is to determine whether the plaintiff/secondary victim and the defendant can establish an action in tort
of negligence against the defendant (_______), and if so, what remedies are available to him.

Tort refers to a civil wrong that gives rise to a civil remedy. There are 3 essential elements to determine whether
there is tort of negligence. (1) The defendant owed a duty of care to the plaintiff, (2) the defendant must have
breached his/her duty of care to the plaintiff and the (3) damage must be caused by the breach of duty.

STEP 1: FIRST, WE HAVE TO DETERMINE WHETHER THE DEFENDANT OWES THE PLAINTIFF A DUTY OF CARE

Firstly, we must establish if there is duty of care owed to ____ (Pf) by _____ (Def). The duty of care is the duty
imposed upon a person to take reasonable care for his acts and omissions. The neighbour principle laid down by
Lord Atkin in Donoghue v Stevenson (1932), which he defines neighbor as the people who are so closely and directly
affected by one’s act that one ought to reasonably to have them in contemplation as being affected by the acts or
omissions called in question.

*Applying the Singapore approach in proving a duty of care, the case of Spandeck Engineering (S) Pte Ltd v Defence
Science & Technology Agency (2007) is utilised. Applying the Spandeck case, the court held that factual
foreseeability, proximity, and the absence of public policy considerations to negate the duty of care must be proved
in order for a duty of care to exist. Once factual foreseeability and proximity is satisfied, a prima facie duty of care
exists.

FACTUAL FORESEEABILITY: Based on the facts of the case, ___ (Df) should reasonably have foreseen that his act
____ would have harmed ____(Pf).

PROXIMITY: Next, there must be sufficient proximity. Based on the case of Sutherland Shire Council v Heyman
(1985), proximity can encompass:

 physical proximity: in space & time

 circumstantial proximity: relationship between them
 causal proximity: causal connection between negligent act & the loss sustained
 voluntary assumption of responsibility: did the representor take it upon himself to give advice?

It is clear from the case that……

PUBLIC POLICY CONSIDERATIONS: Finally, public policy would not prevent such a duty from being found here; in
fact, it is in the public interest to hold persons like _____ (Df) responsible for their acts to the public like _____ (Pf).
(Beneficial to the public if it was implemented). Hence there is a duty of care in this case owed by ___(Df) to __(Pf).

 Since there are no public policy considerations to negate the prima facie duty of care, ___ (defendant) owes
_____ (Plaintiff) a duty of care
OR
However, this duty of care would be against public policy.
 Hence, we may argue that ____ does not owe ____ a duty of care.

***** For cases where it deals with situation such as:

1) Nervous shock or psychiatric harm (primary & secondary victims)
2) Negligent misstatements causing economic loss (Better to sue under misrepresentation if possible)
3) Consequential economic loss/physical damage
4) Negligent act causing economic loss
****Nervous Shock or Psychiatric Harm (PRIMARY VICITIM): not mere mental distress

Plaintiff who is a primary victim can recover for recognized medical illnesses as long as some form of personal injury
was foreseeable flowing from the negligent act.

Based on the case of Page v Smith (1996), since physical injury was foreseeable in such car accidents, it is not
necessary for the plaintiff to show that psychiatric injury was also foreseeable in order to recover for psychiatric
injuries.

Similarly, the ____ in this case ____

*** Nervous Shock or Psychiatric Harm (SECONDARY VICITIM)

Based on 3 proximity requirements established in the case of Ngiam Kong Seng v Lim Chiew Hock (2008), a
secondary victim can recover for psychiatric harm suffered as long as it satisfies 3 elements.

1) Circumstantial proximity: The class of persons whose claims should be recognised based on a close
relationship between the plain and the primary victim (e.g. Parent-child relationship, husband-wife, mother-
daughter)
2) Physical proximity: Proximity of secondary victims to the accident in time and space, that is through sight
and sound of the event or its immediate aftermath
3) Causal proximity: The means by which the shock is caused

In this case, the relationship between the primary victim/plaintiff (__) and the secondary victim (__) is a close
relationship as they are ____(mother-daughter). Next, the secondary victim (__) witnessed the incident or heard the
sound or someone calls and tell her (immediate aftermath). Thus, due to this incident, she suffered a nervous shock.
Therefore, since the 3 requirements are satisfied, 3rd party (___) can eventually recover the damages for her trauma
from the negligent ____(defendant’s name).

***Negligent misstatement causing economic loss (Twin Test) (Use Hedley Byrne to assess PROXIMITY)

Since this is a case whereby a negligent misstatement has caused economic loss, the case of Hedley Byrne & Co Ltd
v. Heller & Partners Ltd (1964) is utilised where there are 3 factors to be considered to whether proximity exists and
whether the relationship between the maker of the statement and the recipient is akin to a contract.

 The skill and judgment of the maker of the statement: Since _____ is a ______
 Whether the maker knows, or ought to know that the other person will rely on the statement
 Whether the maker of the statement had voluntarily undertaken or assumed responsibility for making the
statement Plaintiff hired defendant

Therefore, ___(df) ought to know that (pf) would rely on his advice. **Apply it to the case study.

 Therefore, ____(df) owes a ___(pf) a duty of care.

OR
Plaintiff relied on defendant’s statement on own accord
***Negligent Misstatements causing economic loss
In the case of Caparo Industries v Dickman (1990), the plaintiff relied on the defendant, an auditor who audited the
company and established that the company was going well. The plaintiff, relied upon the defendant’s audited
accounts, bought shares in large numbers and reached a shareholding of 29.9% of the company. However, the House
of Lords unanimously held that there was no duty of care:
- The defendant’s voluntary assumption of responsibility (VAR) purpose was the audited accounts for the
AGM and not for a shareholder’s private speculation
 - And thus, the plaintiff had relied on the defendant’s VAR for the wrong purpose and thus, there was no
responsibility on the part of the defendants in that reliance.
The Caparo test was applied by the Singapore Court in the United Project Consultants Pte Ltd v Leong Kwok Onn
(2005). The court of appeal held that the defendant owed a duty of care to the plaintiff. Given that the defendant
was the auditor and tax agent of the plaintiff company, the defendant ought to have foreseen the loss to the plaintiff
and had assumed responsibility in respect of the tax filing.
Some important requirements for establishing a duty of care
 The purpose was made known to the adviser at the time of the advise
 Adviser knows or ought to know that his advice will be communicate to the plaintiff for the above reason
 The adviser knows or ought to know that his advice will be acted upon by the plaintiff without independent
inquiry
 The advice was acted upon by the plaintiff to his detriment
Therefore, ___(df) ought to know that (pf) would rely on his advice. **Apply it to the case study.

 Therefore, ____(df) owes a ___(pf) a duty of care.

Extension of the Hedley principle: duty of care owed by employers to ex-employee

In the case of Ramesh s/o Krishnan v AXA Life Insurance Singapore Pte Ltd (2015), the high court held that the
employer owed a duty of care to the ex-employee in providing reference checks on the latter’s employment history
to prospective employers. This duty of are was based on causal and circumstantial proximity between the employer
and ex-employee. ___(df) ought to know that (pf) would rely on him to exercise due care and skill in preparing the
reference. Therefore, ____(df) owes a ___(pf) a duty of care.

However, by ___*apply case____ (act/ words), _____(df) had breached his duty of care by giving a negligent
reference, thus unjustifiably prejudicing _____(pf)’s prospects of obtaining fresh employment.

****Negligent act causing Economic Loss

**The Singapore position has allowed the recovery of pure economic loss as long as it passes the duty of care test
laid in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency (2007). As affirmed in the case of
NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd and another (2018). In the case, the respondent had
negligently damaged a pillar of a building in the course of carrying out operations. The pillar was the structure
supporting the floor of the airport transit lounge. The appellant had leased premises at the transit lounge to run a
food kiosk. The Building and Construction Authority issued a closure order over a part of the lounge that covered the
leased premises. The courts held that the respondent owed a duty of care to the appellant in respect to the
appellant’s loss of profits.

In our case,

Therefore, as ___(pf) owed a duty of care to the ___(def).

STEP 2: Secondly, we have to assess if ___ (Defendant) had breached his/her duty of care to ___ (Plaintiff).

1. OBJECTIVE TEST
The standard of care is the objective standard of a reasonable person using ordinary care and skill. It helps to
determine if there has been a breach, which happens if the ___ (Df) conduct falls below the standard and can be said
that the defendant has “breached” the duty of care. Generally, there are three guidelines to assess the standard of
care, and it is on the burden of the plaintiff to prove.
1. Level of skill (High Skill High SoC)
If the level of skill is high, a high standard of care exists. With regards to the standard of care for professionals, it is
established in Bolam v Friern Hospital Management Committee (1957) that it sufficient for a professional to
exercise the ordinary skill of an ordinary competent man exercising that particular art. This is also known as the
Bolam’s test, which McNair J explained as that “(a doctor) is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of medical men skilled in that particular of art.
 Yeo Peng Hock Henry v Pai Lily (2001): the defendant has fallen short of the standard of care required of a
competent general practitioner
 Yeo Yoke Mui v Ng Liang Poh (1999): the defendant, a lawyer, ought to explain to the plaintiff the meaning
of the terms, thus, the defendant is liable

The same standard of care is expected even if the defendant is inexperienced. For non-professionals, the level of
experience in the profession is not relevant in determining the standard of care, as shown in Nettleship v Weston
(1971).
 Wells v Cooper (1958): has met the standard care of a reasonably amateur competent carpenter
The exception however, is if the driver suffered from an illness that he was unaware of which affected his ability to
drive, as in the case of Mansfield v Weetabix Ltd (1997), whereby the court held that the driver was not at fault as he
would not have known his illness was the cause of the accident.

2. Likelihood of Harm (High Likelihood High SoC)

Generally, if the likelihood of injury is high, the standard of care required is higher, as in the case of Miller v Jackson
(1977), where there was evidence that balls were hit out of the cricket ground several times each season and thus
the possibility of harm is highly foreseeable. A low likelihood of injury would, thus, required a lower standard of care,
as shown in Bolton v Stone (1951). Similarly, _______
a. (if applicable!!) Moreover, it is also expected for _________ (defendant) to taken reasonably steps
or incur the necessary costs to avoid the injury especially if the risk of harm is high, as shown in
Latimer v AEC (1953), where the court had held that the management had did everything possible to
remove the effects of the flood.

3. Seriousness of Harm (High Seriousness High SoC)

The general rule is that the more serious the injury, the higher standard of care is required, vice versa, as illustrated
in the case of Paris v Stepney (1951), whereby the court held that the disability of the plaintiff’s employee had
increased the seriousness of harm to him, and The Sunrise Crane (2004), whereby the court had imposed a higher
standard of care on the defendant as the cargo was deemed “highly hazardous in nature”. Similarly, _________
4. Cost of Avoiding Harm
There is also a need to compare the risks associated with the cost as illustrated in the Wagon Mound (No 2) (1967),
since a reasonable man would only neglect a small risk provided he had some valid reason to do so as it might
involve considerable expense to eliminate the risk
 High cost, high risk (incurring cost is necessary)
 High cost, low risk (may not have to incur cost)
 Low cost, low risk (may still have to incur cost)

***NO BREACH: Latimer v AEC Ltd [1953] The floor of a factory became slippery with water and oil owing to a flood
caused by a heavy rainfall, causing an injury to a workman. The court held that the employer took reasonable steps
to mitigate the risks by removing the effects of the flood, and the factory should not be expected to shut down the
factory in a drastic measure. Hence, there was no breach of their duty of care.
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2. Res Ipsa Loquitur
While the burden of proof is generally on the plaintiff, in cases where ___ (plaintiff) may experience difficulties in
adducing (citing) direct evidence of the negligent act or omission, the doctrine of Res Ipsa Loquitur can be invoked.
There are 3 criteria to be satisfied:
1) Defendant must have been in control of the situation or thing which resulted in the accident
2) The accident would not have happened, in the ordinary course of things, if proper care had been taken
3) The cause of the accident must be unknown to the plaintiff

The facts of the case are similar to that of Scott v London & St Katherine Docks (1865), where sacks of sugar under
the control of the defendant fell from a crane at the defendant’s warehouse. This would not happen on normal
circumstances if not for the negligence of the defendant.
Similarly, in the given case, ____.

Hence, upon the fulfillment of the 3 criteria, the effect of Res Ipsa Loquitor the burden of proof is shifted to the
defendant to show that he was not negligent.
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 Thus, the defendant has breached his duty of care to the plaintiff/secondary victim.

STEP 3: Thirdly, we have to determine if the damage was caused by the breach.

1. But-For Test
The “but-for-test” can be applied to determine the causation for the breach, and the test is used to show that the
damage suffered by the victim must have resulted from the negligent act of the defendant. In the case of Barnett v
Chelsea & Kensington Hospital (1969), the Court held that the doctor’s negligent omission did not cause the death
as even if the doctor had given the correct medical treatment at the relevant time, death to that patient would have
taken place anyway.

By applying the “but-for test”, it is clear that if _____ had not been negligent, ____ would not have suffered the
harm. Hence, the damage suffered by the plaintiff/secondary victim must have been caused by the defendant’s
breach.

2. Material Contribution Test

(if applicable!!) Given that there are multiple causes to the injury of ______, we can apply the material contribution
test in this case.
If the causation is cumulative, the case of Bonnington Castings Ltd v Wardlaw (1956) shows that the claimant need
not prove that the defendant’s breach of duty was the sole or main cause of damage provided that he can
demonstrate that it made a material contribution to the damage.
- (if applicable!!) The defendant’s negligence could also have contributed materially to the risk of the
plaintiff’s harm, as in the case of Fairchild v Glenhaven Funeral Services Ltd (2003), whereby the court held
that the defendants were jointly liable as each employer had materially increased the risk that the plaintiff
would contract mesothelioma.

(if applicable!! Can briefly mention) However, if there is a novus actus interveniens (new intervening act), which
breaks the chain of causation and is a wholly independent cause of the damage, then the defendant’s breach would
not be regarded as the cause of the plaintiff’s damage, as seen in the case of Salcon Ltd v United Cement Pte Ltd
(2004), CA held: novus actus interveniens – before Salcon could effect repair, TEPP’s actions intervened. Complete
reconstruction of silo now necessary – chain of causation broken by TEPP. Salcon no longer liable for losses during
“notional” period of repair after silo’s collapse.

 Therefore, we can conclude that the defendant’s breach did cause the damage suffered by the plaintiff

STEP 4: Lastly, we have to determine if the damages were too remote to prevent recovery.
The test that we have to apply is the “reasonable foreseeability” test. As in the case of Bradford v Robinson Rental
Ltd (1967), when the loss was reasonably foreseeable, regardless of the precise extent of the loss, it would not be
considered too remote. The case of Overseas Tankship (UK) Ltd v Morts Cock & Engineering Co Ltd (1961), loss
would not be too remote where the type of loss which actually occurred was reasonably foreseeable. Applying the
given facts in the case, __________

**Special circumstances may arise such as the “eggshell skull rule”, which holds that the defendant has to take the
plaintiff as he or she is, with existing predisposition. This was shown in Smith v Leech Brain & Co Ltd (1962) where
the plaintiff who had a pre-cancerous condition, had burnt his lip due to the defendant’s negligence. This resulted in
the lip becoming cancerous due to the burn. Thus, _______ (plaintiff) can sue ________ (defendant) for damages
because at the point of time, ____ (plaintiff) had ____ (the pre-existing condition) and thus ____(defendant) is liable.

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Mitigation (IF APPLICABLE)
_______ (Defendant) may claim that the plaintiff ought to have taken reasonable steps to mitigate his loss, and the
burden of proof lies on the ___ (Defendant). If successful, the loss claimable by ___ (plaintiff) will be reduced
accordingly.

According to British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Company of
London Ltd (1912), the innocent party must take all reasonable steps to mitigate the loss consequent on the breach,
failing which would ban the recovery of the losses which he/she could have avoided. The law will not allow the
compensation of losses that should have been mitigated.
As illustrated in the case of Branco de Portugal v Waterlow & Sons Ltd (1932) and Tan Soo Leng David v Lim Thian
Chai Charles (1998), even if, in taking objectively reasonable steps to mitigate, the aggrieved party incurs greater loss
than if no steps been taken at all, such increased losses will still be recoverable from the party-in-breach.
(if applicable): It is expected for the innocent party to only take reasonable steps to try and mitigate his losses,
and thus, there are a few exceptions where if mitigation proves impossible, the court will not impose it on the
innocent part.
In this case, the innocent party did not mitigate his loss as he was financially unable to afford it, and this is sufficient
as Payzu, Limited v Saunders (1919) states that what is reasonable for a person to do in mitigation of his damages is
based on the circumstance of each case. Hence, the choice not to mitigate is reasonable in the context.
(if applicable)
OR if it would place its commercial reputation of good public relation at risk: James Finlay & Co. v NV KwikHoo
TongHM (1928)

STEP 5: Defences
 Defences may be invoked by the defendant, for example ‘Volenti Non-Fit Injuria’, similar to the case of
Wooldridge v Summer (1963), where the plaintiff was aware of the nature and extent of the risks, and had
consented to it, in participation of inherently dangerous activities. Similarly,
 The defendants may also seek reliance on exemption clauses to exclude their liability. This would be subjected to
3 conditions: (refer to UCTA Section 2!!)

Conditions to be Satisfied by Exemption Clauses for it to be Valid

i) It must be properly incorporated into the contract
ii) It must be properly construed
iii) Its operation must not be excluded or restricted by statue, namely, UCTA

According to section 2(2) of UCTA, “a person cannot ... exclude or restrict his liability for negligence except insofar as
the term or notice satisfies the requirement of reasonableness”.

Under UCTA section 11(1), “requirement of reasonableness is… the term … fair and reasonable… having regard to
the circumstances which were, or ought reasonably to have been, known to or in the contemplation of parties when
contract was made”.

To test the reasonableness, we refer to UCTA 2nd schedule - “whether customer received an inducement to agree to
the exemption clause or could have entered into a similar contract without the need for such a term”, is used.
______ was misled by _____ and bought the rights issued, thus agreeing to the exemption clause in the prospectus.

 Hence, this test has failed and the clause is invalid.

 The defendants may also argue for contributory negligence. According to the Contributory Negligence and
Personal Injuries Act (Cap 54, 2002 Rev Ed) s 3: “…the damages recoverable in respect thereof shall be reduced
to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility
for the damage”
 Vicarious liability
Requirements:
o Employer–employee relationship
o Negligent acts or omissions done in the course of employment
If both ingredients are established, employer will be liable for the negligence of the employee.
*Employer is entitled to indemnity by the employee.

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In conclusion, the defendant (__) owed a duty of care to the plaintiff/secondary victim and breached his duty of care
to the plaintiff. Hence, he/she is liable under the tort of negligence and thus, the plaintiff can recover the damages
(physical injury, physical damage to property or economic loss) from him.