Tort of Negligence

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LGST101: Business Law
AY 2011-2012, Term 1
Group 8 Project Written Analysis

Tort of Negligence

Prepared for: Professor Melvyn Chew
 
Written By:
Jamie Lim Jia Qi (#12)
Joel Koh Yong Kiat (#14)
Low Hwan Hong (#23)
Oh Zhan Yuan (#24)
Ong Hui Ming Maria Nicolette (#25)

G12

Throughout the course of this report, to determine if the plaintiff is owed a duty of care in negligence, we will adhere by the Singapore single test of negligence laid out in the case of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] SGCA 37; [2007] 4 SLR 100, which states that the following factors must be satisfied in order for a duty of care in negligence to arise:

1)       Test for factual foreseeability
2)       Test for proximity
3)       Test for policy

Case 1: MMBooks v Hamza Construction Ltd (‘HCL’)

Hamza Construction Ltd (‘HCL’) is doing some tunnel work for the MRT Circle line in the Bras Basah area. At about 11am one Friday morning, one of their workers excavated into some telephone and electricity cables. This affected a building down the road where a bookshop, MM Books is located.  MMBooks had to close their shop for four hours because of the power outage. When power was restored at 3pm, MMBooks realized that all of their computers no longer worked. The computer technician they called, Larry Lim, said that a huge power surge had damaged the computers. Advise MMBooks.

In this case, our group has identified that we have to determine if MMBooks can claim for damages in tort of negligence as well as the type of damages that they can claim.

1.1 Requirements for MMBooks to be able to claim in Tort of Negligence

For MMBooks to take action in tort of negligence against ‘HCL’, a few legal requirements need to be fulfilled prior to that, which are:

a) A duty of care owed by HCL to MMBooks must exist
b) HCL breached its duty of care owed to MMBooks
c) MMBooks suffered loss from the breach

1.2 Legal Issue 1: Did HCL owe a duty of care to MMBooks?

“Referring to Spandeck Engineering (S) Pte Ltd v DSTA, “a single test is preferable in order to determine the imposition of a duty of care in all claims, irrespective of the type of damages claimed…” [1]The test adopted is Ann’s test, tempered with the preliminary requirement of factual foreseeability. This test is to be applied incrementally. In other words, when applying the test at each stage, judges ought to refer to decided cases in analogous situations.”

Therefore, in establishing whether a duty of care exists between MMBooks and HCL, the Spandeck test must be applied. As mentioned above, a pre-threshold issue of factual foreseeability (which is akin to the ‘neighbourhood principle’ in Donoghue v Stevenson) is to be satisfied before moving on to the test of proximity and test of policy.

1.2.1 Pre-threshold issue: Factual Foreseeability

Factual foreseeability refers to the foreseeability that one’s negligent act or omission is likely to result in the damage suffered by the plaintiff from a factual perspective. It is akin to the neighbour principle in Donoughue v Stevenson. In this case, ‘HCL’ was carrying out excavation works in the Bras Basah, which is located in the city, meaning that the work site is surrounded by buildings which require electricity. According to SP PowerGrid Ltd, Singapore’s electricity transmission and distribution cable network is fully-underground. Therefore, in this situation, HCL ought to have known that carelessness on their part during construction would possibly result in them excavating into underground electrical cables of neighbouring buildings (including where MMBooks was located) and thus, cutting off their electricity, which resulted in damage of MMBooks’ computers. Hence, in this situation, the pre-threshold issue for the Spandeck test has been fulfilled.

Thus, we can move on to the test of proximity.

1.2.2 Test of Proximity

In Sutherland Shire Council v Heyman...
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