Law_Tort_DutyOfCare_CurrentLaw

Spandeck Framework
Spandeck overview
Regardless of the type of harm suffered, the test in Singapore for duty of care is the Spandeck
framework: a threshold requirement of factual foreseeability, then (1) a sufficiently proximate
relationship between the parties giving rise to a prima facie duty of care, which (2) may be
affirmed or negated by policy considerations.
Established duty categories, which do not need to consider Spandeck framework:

- Motorist—pedestrians; personal safety

- Manufacturers and distributors—consumers; personal safety
- Repairer of article—lawful user, where there is no reasonable opportunity for examination
- Employer—employee; safe workplace, provide truthful reference
- Occuper—lawful entrant; personal safety (Occupier’s Liability)
- Promisor of promise to confer benefit—promisee; monetary loss

If a case is not covered by an existing category, or a party wants an existing category to be reconsidered,
a framework for determining duty is required; thus, the Spandeck framework:

Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100—
Threshold: Factual Foreseeability, (1) Legal Proximity, (2) Negating Policy Concerns

- Df (DSTA) engaged Pf (Spandeck) to do construction work

- Df engaged another professional to value the Pf’s contracted work at various stages and
determine payment for Pf at each of these stages
- Pf ran into financial difficulties, blamed professional for negligently undervaluing the works and
thus causing them to be paid less
- Pf had novated the contract, sued Df for Pure Economic Loss on the basis that Df owed a duty of
care to apply professional skill and judgement in certifying work

Holding

- DSTA did not owe a duty of care to Spandeck, for proximity and policy reasons

The Spandeck Framework

Threshold: Factual Foreseeability: it constitutes “the foreseeability of harm, in general, as well as

the foreseeable class of persons who may be affected” (Chan 03.042)

- Meaning: “the defendant ought to have known that the claimant would have suffered damages
from the Df’s carelessness” [75].
- It is a weak filter that removes claims for damages which cannot possibly stem from Df’s careless
conduct as a matter of logic.
- This is a threshold because “factual foreseeability is the preliminary step in that logical process
of finding legal proximity [which is coterminous reasonable foreseeability]” (Chan 03.041)
(1) Legal Proximity: it evaluates the closeness of the relationship between parties [77]. It consists of
several disjunctive elements, and the courts may find it fulfilled by any combination of them:

- Physical proximity: closeness in the sense of time and space [78]

- Circumstantial Proximity: closeness in the factual relationship between parties, i.e. employee-
employer, professional-client [78]
- Causal Proximity: such as manufacturer-consumer, i.e. Donoghue; note, this concept is distinct
from ‘causation of damages’ later in negligence, which is concerned with legal damage and
assigning liability [78]
- Voluntary Assumption Of Responsibility and Reliance (AORR) [Anwar, 117]
o Useful in looking at negligent advice and professional services, but is less relevant for
personal injury, psych harm, and PEL between strangers [03.060]
- Knowledge: Actual or constructive knowledge that (i) Df’s conduct could lead to claimant’s harm
or (ii) claimant was dependant on Df for protection from harm [Anwar, 148]
- Control: Capacity to control risk of harm to the other party [Anwar, 154]
- Vulnerability: Claiamant’s dependence to protect from harm [Anwar, 154]

(2) Policy—Fair, Just, and Reasonable

- Policy are considerations of community welfare like public morality, social philosophy, and
economics, which lie outside of the need to achieve interpersonal justice between parties
- Policy considerations may
o negate the prima facie duty of care established in stage 1;
o affirm the absence of prima facie duty not-established in stage 1; or
o affirm the presence of prima facie duty established in stage 1
- Several policy considerations may arise:
o Spandeck: the “presence of contractual matrix which has clearly defined rights and
liabilities of parties and [their] relative bargaining position” [83]
o [2012] 2 SLR 549, Tan, duty negated due to the indeterminacy that may arise from the
court’s assessment of Df’s conduct possibly having adverse economic effects on the
“chain of affected parties” [75]; mostly arises in PEL cases
o “”, duty negated due to distributive justice due to risk allocation from insurance [85]

Reasoning—Remarks

- It was factually foreseeable by D that if it failed to take care in the certification process, P could
suffer financial losses.
- The court held that, given an arbitration clause in the contract, there was no assumption of
direct responsibility by the Df, and no proximity [108].
- Even if proximity had existed, the imposition of a duty of care would be rejected on policy
grounds as “a duty of care should not be imposed on a contractual framework” [114].
- “We would add that this test is to be applied incrementally, in the sense that when applying the
test in each stage, it would be desirable to refer to decided cases in analogous situations to see
how the courts have reached their conclusions in terms of proximity and/or policy…”
 - “However, the absence of a factual precedent, which implies the presence of a novel situation,
should not preclude the court from extending liability where it is just and fair to do so, taking
into account the relevant policy considerations against indeterminate liability”.

Factual Foreseeability
Case Law
Hay (or Bourhill) v Young [1943] AC 92—It is not reasonably foreseeable that a bystander would suffer
injuries from witnessing the bloodstain left behind as an aftermath of an accident

- Df (Young) was speeding on a motorcycle, collided with a car, and was thrown into the street,
suffering grave injuries
- Pf was removing something from a tram. She heard the collision on the other side of the tram.
- After Df’s body was removed, Pf went to look at accident scene and saw the blood on the road.
- Pf claimed to have been terrified, to have wrenched her back, and to have subsequently had a
stillbirth; brought action for negligence

Holding

- No DoC from the Df to Pf, as the Df (or a reasonable hypothetical observer, i.e. objective) could
not reasonably have foreseen that the Pf would be “affected in the manner as she was” as a
result of his conduct [111]

Ngiam Kong Seng and another v Lim Chiew Hock [2008] 3 SLR(R) 674—It is not foreseeable that the
mere communication of information could result in harm

- Df (Lim) collided with Mr Ngiam while driving

- After the accident, concerned Df disembarked and rendered assistance to the injured Mr Ngiam,
presenting himself as a helpful bystander rather than the cause of the accident
- Pf, Mr Ngiam’s wife, looked upon the Df as a Good Samaritan and developed feelings of
gratitude towards him.
- When Pf discovered the truth, she suffered from depression and suicidal feelings. Pf sued Df in
negligence for psychiatric harm

Holding

- “To hold that it was reasonably foreseeable that a mere communication of information, without
more, could result in harm to a party boggles the imagination and stretches the realms of
reality” [132]
- Note: Court says reasonable foreseeability, but they probably mean factual foreseeability

Man Mohan Singh v Zurich Insurance (Singapore) Pte Ltd [2008] 3 SLR(R) 735—It is not factually
foreseeable that a negligent driver killing a claimant’s children would cause them to require IVF

- Pf, negligent driver, caused an accident that killed Df’s only children
- To replace their children, Dfs underwent fertility treatment
- One issue was whether the parents could claim damages for the cost of IVF they went through

Holding
 - FF: Finding factual foreseeability would “stretch the powers of foreseeability of a driver too far” [48].
o Driver could not have foreseen that the victims would constitute all the children of the
parent(s), or that he would have known that the parents suffered from a medical condition,
and needed IVF to fulfil their desire to replace their deceased offspring.
- Proximity: No assumption of responsibility by the driver [48].
- Policy: Danger of indeterminate liability:  “if this court were to allow the appellants’ claim for the
cost of fertility treatment, the boundaries of liability would expand without any sound legal basis or
clear direction, and society as a whole would be worse off” [50]
Scholarly Opinion
Perry-functionalist view: Foreseeability serves a distinct function as an indication of capacity in Df (class)
to:

i) See that acting causes risks of injury; and

ii) That injury might arise given certain ‘causal regularities’ (eg – that speeding can mean being
unable to stop when necessary, thus injuring a person who is in the road)
- The law insists upon the presence of this capacity because, without it, there is a real sense in
which Df (class) would be unable to avoid causation of injury. It is difficult to avoid causing an
injury that you cannot envisage/foresee.

Dorfman’s ‘respectful recognition view’: Foreseeability makes possible the connection between
exercising due care and recognising the cared-for [P]:

i) Foresight is a threshold condition for the duty of care to become in the first instance a norm
that calls for respectful recognition of others; and
ii) The requirement is in itself a form of interpersonal recognition, in virtue of the relation that
it can engender between the risk-creator and the foreseeable risk-taker, namely a relation
of re-cognition’.

Witting’s Guidelines on Foreseeability

(1) The foreseeability element is concerned with whether a person in the position of D (eg a
motorist) could have foreseen that a failure to take care might result in harm to Pf/class
including P (eg pedestrian).
(2) The point of the adjective ‘reasonable’ is that it is not a pure question of fact; it is a question of
fact and value. Thus we might say that it requires the court to undertake a fact-based
evaluation of what the reasonable person in the position of D could foresee.
(3) What is foreseeable is the real risk that injury might be sustained by Pf or class including Pf (ie
foreseeability of harm to persons in the class).
(4) It is not the individual Pf who must be foreseeable. Thus, in the case of motorists who pass each
other by on the road, the duty of care is not owed only to those whom Df knows personally to
be there. The formulation is wider, encompassing those who form the class of which Pf is a
member. Thus, the class might be the class of people who, eg, are motorists or pedestrians or
medical patients etc.
Proximity
Examples of Proximity Factors in Singapore
Animal Concerns Research & Education Society v Tan Boon Kwee [2011] 2 SLR 146

- Pf (Animal Concerns) wanted to construct an animal shelter and appointed AnA as head
contractor. AnA appointed Df as Clerk of Works with the job of supervising construction.
- The process was beset by problems and remediation work needed to be undertaken.
- Pf sued Df for negligence in failing to properly supervise construction operations

Holding

- Df owed the Pf a prima facie DoC because was legal proximity, and this was not negated by
subsequent policy considerations
- Factual Foreseeability: On a general level, a duty of care ought ordinarily to be owed by a clerk
of works to his client [60]
- Legal proximity: Depends on “the precise facts”, in this case, “whether there had been an
assumption of responsibility by the clerk vis-à-vis the client” [60]
o Voluntary AORR: The Df had “voluntarily assumed the various responsibilities the role
carried and holding himself out as possessing the relevant qualifications and skills
necessary to discharge that role” [63], fulfilling legal proximity
- Distinguished from Spandeck—in Spandeck, contractual matrix specifically excluded Df from
tortious liability; here, pre-existing contractual matrix did not exclude Df from tortious liability,
so a DoC could be found here despite pre-existing contractual matrix.
- Policy considerations:
o Court can be “astute to introduce minimum standards of skill and care” in areas that
relate to “public safety” [81], given statutes safety issues
o Conflicts of interest compromised Df’s ability to check construction company in interest
of client, which led to client’s detriment, to which they should have some recourse [87]

Anwar Patrick Adrian v Ng Chong & Hue LLC [2014] 3 SLR 761

- Pf’s dad owed debts to a Bank; dad retained the Df to offer legal advice
- During negotiation, Bank wanted a clause in which Pfs assumed personal liability for dad’s loans;
dad did not agree to this demand
- However, in the final contract, this Personal Guarantee Clause remained, and Df did not flag this
to Pfs or dad. Bank made claim against Pfs based on this Clause; Pfs forced to settle
- Pfs brought action against Dfs for breach of duty of care to protect clients’ interests, to recover
money lost in settlement

Holding

- It is foreseeable that “a solicitor’s failure to take reasonable care in performing instructions”,

which may benefit a third party if performed, “will result in harm to [that] party” [142].
- No voluntary AOR-R: A solicitor does not voluntarily accept direct responsibility to a third party
who has relied on their advice, but only to their client [158].
 - Circumstantial Proximity—Knowledge: Due to the client’s instructions, the Df knew that his
service was retained by client to benefit the Pfs, and that this benefit could only be effected
through the Df taking care in performance, establishing a relationship between Df & Pfs [148]
- Causal Proximity: The Df was plainly cognizant that his actions would have clear repercussions
on the Pfs [149]
- Control/Vulnerability: The Df clearly had “capacity… to control the situation that might give rise
to the risk of harm”, and the Pfs were relatively vulnerable in that they depended on the Df to
give proper legal advice [154]
- Policy: “The imposition of a duty on solicitors to exercise reasonable care even towards third
parties in particular situations” helps to “Uphold high standards of competence and diligence” in
the legal profession [162]

Note: In cases of psychiatric illness, other proximity factors arise – although, again, they are concerned
mainly with the relations that join the parties.

Evaluation of proximity
Witting’s Witticisms:

- Proximity factors are concerned with how the parties are related.

- As proximity must arise before a finding of DoC, these factors must arise between the parties
before their injurious interaction with each other.

- Proximity is concerned with factual features that link the parties prior to their injurious
interaction and that indicate causal pathways to harm.

- Causal pathways to harm are the substantial means by which failures in care by a class of person
might cause injury to another class.

- It is because of the existence of causal pathways to harm that courts need to think about the
imposition of obligations to take care. In other words, if those causal pathways to harm exist,
there is reason prima facie to take care.

- Tan and Goh (2013) support such an approach as appropriate for the Spandeck framework.

Policy
Where elements of proximity and foreseeability are present, a prima facie duty of care arises: Spandeck.
This prima facie DoC may be negated or affirms by policy considerations

UKM v Attorney-General [2018] SGHCF 18, [104]-[115]

iii)  “The core of the concept of public policy, therefore, is that it involves arguments about the
public or common good.” [107]
iv) [122] Matrix of Legal Contexts, CJ Menon:

Type of Public Policy

Socio-Economic Legal
Type of Law Judge-made law 1A: ACB [2017] 1B: Other torts
Statutory Law 2A: Follow Parl 2B: Defer to Parl
Witting’s Witticisms

v) In policy, Courts are concerned with a decision’s effects beyond the parties of the present
case—they are concerned with the effect duties on future parties, relations, and activities.

vi) This is to say that policy-based reasoning usually has a predictive element in it—the Court
tries to determine what the effect finding duty versus no-duty would be upon these future
parties, relations, and activities.

Relevant Policy Arguments

vii) The desire to protect physical interests: Donoghue v Stevenson (1932).

viii) Policy in favour of protecting vulnerable parties; for instance, the blind: Haley v London
Electricity Board (1965)

ix) The need to maintain professional and other standards: Anwar Patrick Adrian v Ng Chong &
Hue LLC (2014)

x) The need to pay heed to relevant statutory schemes: UKM v Attorney-General (2018)

xi) Need to avoid conflicts between areas of law: Tan Juay Pah v Kimly Construction Pte Ltd
(2012)

a. Such as the need to respect contractual allocations of risk: Spandeck v DSTA [2007];
Animal Concerns Research & Education Society v Tan Boon Kwee (2011)

xii) Need to ensure that duties of care do not damage relationships, such as that between
parent and child: ACB v Thomson Medical Pte Ltd (2017)

xiii) [Slight concern about] possibility of indeterminate liability: NTUC Foodfare Co-operative Ltd
v SIA Engineering Co Ltd (2018)

Scope of Duty—don’t analyse here; see causation & remoteness

xiv) The last issue arises only when the court has determined that there should be recognised
between the parties a duty of care. The duty is indicative of a legal relationship between the
parties; D or class must take care so as to avoid injuring P or class.
xv) However, duties of care are not boundless; they are of limited scope. They arise from
certain kinds of proximate relationship and, therefore, logically would be limited to certain
kinds of failure. Whenever they are close in time and space (e.g., as they pass each other on
the footpath), A will ordinarily owe a duty of care to B to ensure that s/he does not harm B’s
physical interests. That proposition does not entail the further proposition that A also owes
to B a duty of care to avoid causing him or her, eg, financial loss. This must be separately
established. Financial interests are protected by negligence law in a limited set of
circumstances.

Hughes-Holland v BPE Solicitors (2017)

 xvi) a solicitor was negligent but was employed only to do certain things and not other things.
The solicitor was responsible for drawing up a (loan) facility letter. The letter contained
errors in terms of what the money was to be used for and P lost his investment. To what
extent was the solicitor responsible for P’s losses? Lord Sumption said:

a. ‘… the law is concerned with assigning responsibility for the consequences of the breach
[ie substandard conduct], and a defendant is not necessarily responsible in law for
everything that follows from his act, even if it is wrongful. A variety of legal concepts
serves to limit the matters for which a wrongdoer is legally responsible… the relevant
filters are not limited to those which can be analysed in terms of causation. Ultimately,
all of them depend on a developed judicial instinct about the nature or extent of the
duty which the wrongdoer has broken’.

xvii) Lord Sumption then quoted the above statement from Lord Bridge. His Lordship indicated
that in professional cases duties of care will be wider or narrower depending upon, eg,
whether D is retained to advise on the transaction or merely to provide particular
information. On the facts, Df solicitors were retained for a narrower purpose and their duty
did not extend to advising on the commercial prospects of the loan transaction.

Anwar Patrick Adrian v Ng Chong & Hue LLC (2014)

xviii) The scope of a solicitor’s contractual duties to his client is informed by the terms of the
retainer between the solicitor and the client… The retainer, in turn, is to be defined by
reference to what the solicitor is instructed to do by the client and how he is expected to
discharge his responsibilities in accordance with the notion of a reasonably competent
solicitor….
xix) In a typical solicitor-client relationship, the duty to explain documents is basic… [I]t is the
solicitor’s duty to ensure that his client understands the document that he is committing his
name to…
xx) A youthful client, unversed in business affairs, might need explanation and advice from his
solicitor before entering into a commercial transaction that would be pointless or even
impertinent if given to an experienced businessman….

The Overlap Problem—only for essays

- Duty was useful to determine the situations in which liability would never be imposed, however
careless the Defendant’s conduct
- The narrower a question or finding of ‘duty’ is phrased, the more likely it is to overlap with
breach/causation/remoteness
- Overlap with breach
o Broad Duty: Park authority owed users a duty with regard to users’ physical safety
o Breach: Park authority failed to put up a warning sign near a hidden pit
o Narrow Duty: Park authority owed users a duty to put a warning sign near a hidden pit
- Overlap with causation (facts from Animal Concerns)
o Broad Duty: Clerk of Works owed employer a duty to supervise contractor
o Causation: Clerk caused employer’s loss by failing to supervise contractor’s operation
o Narrow Duty: Clerk owed employer a duty to supervise the backfilling operation
 - Overlap with remoteness (from Man Mohan Singh)
o Broad Duty: Motorist owes parents a duty re: child pedestrians’ personal safety
o Too Remote: Claiming IVF cost to have ‘replacement children’ is too remote
o Narrow Duty: Motorist owed no duty to bear the parent’s IVF cost to have children

Categorisation of Duty of Care—only for essays

A requirement for negligence cases is that Pf proves damage, the ‘gist of action’ (Ngiam). The type of
damage also categorises the duty case being considered

This is done to bring together like cases under the same label:

- Physical interests (property or bodily)

- psychiatric illness,
- pure economic loss

Other types of categorization are: number of parties, status of Df, rough factual situation

Chan and Lee, The Law of Torts in Singapore (2nd ed, 2016) adopts a categories approach:

- “For purposes of discussion and analysis, it is … convenient to categorise the myriad factual
matrices into broad areas based on:

o The type of damage or loss,

o The nature of the conduct of the defendant (ie; a positive act, a real omission, a
misstatement of the defendant or the acts, omissions of third parties, etc)

o The capacities and roles of the parties involved

 From a survey of the specific scenarios, parties and matrices, one may usefully discern
applicable principles to determine the existence of a duty of care”.

Home Office v Dorset Yacht Co Ltd [1970] AC 1004

- Generally, courts decide whether a duty of care arises by looking whether DoC arose for
precedents that have similar characteristics, in terms of parties’ relationship and conduct.

- However, in a novel situation, the courts must decide “whether or not to extend the kinds of
conduct or relationships which give rise to a duty of care,”

o the conduct or relationship which is involved in it will lack at least one of the
characteristics A, B, C or D, etc,

o and the choice is exercised by making a policy decision as to whether or not a duty of
care ought to exist if the characteristic which is lacking were absent or redefined in
terms broad enough to include the case under consideration.

o The policy decision will be influenced by the same general conception of what ought to
give rise to a duty of care as was used in approaching the analysis.

o The choice to extend is given effect to by redefining the characteristics in more general
terms to exclude the necessity to conform to limitations imposed by the former
definition which are considered to be inessential”.

Witting (2005) defended categorisation, taking pure economic loss as an example:

- Categorisation takes place at many levels in the law of negligence.

o At a general level, a distinction is drawn between acts and words.

o At the intermediate level, a distinction is drawn between various means by which

economic loss might be caused.

o And at the most particular level, courts distinguish between the different structural
features that link parties within each ‘pocket’ of case law, e.g. ‘proximity criteria’

- Distinguishing these categories help orientate the court and identify the more specific structural
features of a case that really determine the finding of DoC

To what extent is Singapore departing from categorisation?

- Ngiam—the SGCA began a retrenchment from categorisation, rejecting the distinction from
English authorities: between primary and secondary victims in psychiatric illness cases
- This is problematic because it leads to the assumption that the same kinds of proximity factor
will be relevant to both primary and secondary cases—which is not correct (In Witting’s opinion)

The Singapore courts more formally expressed their rejection of categorisation in duty of care cases in
the following two decisions:

ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918

In ACB v Thomson Medical Pte Ltd (2017), the Court of Appeal at paras 2 and 29 discusses various
categories of duty case in a way that appears to be meaningful. But the Court noted that the present
case (concerning a novel claim of loss of genetic affinity) did not fit neatly into previously established
duty cases. Phang JA stated:

- “… The characterisation of the claim cannot determine its success. The distinction [here
between pure economic loss as primary or as consequential] is only useful as a proxy (and then
only as a very rough one) for whether a duty of care ought ordinarily to arise in a given context.
At the end of the day, the existence of a duty of care falls to be adjudicated based on the facts
of each case and cannot merely be an arid matter of labels.”

- Not a complete rejection of categorisation, but a warning that one ought to be careful about a
strict categorisation of prior cases; a slight resistance in the categorisation of categorisation.

- In the end, the Court (especially SCA) is only going to be guided by prior decisions

Singapore Rifle Association v The Singapore Shooting Association (2018)

- The target of the Court’s decision was the distinction between Occupiers’ Liability cases as
concerned with the static state of premises as opposed to activities that take place on premises.
The Court followed academic opinion in rejecting this type of categorisation ‘in so far as it is not
always possible to classify a particular factual matrix under either one category or the other’.

- My view) to have been off the mark, because it appears that this was not even an Occupiers’
Liability case—given that the plaintiff itself was an occupier with the ability to exclude others
from at least parts of the property.

- Occupiers’ Liability cases ordinarily are concerned with visitors to land under the occupation of
others and not about overlapping occupation. The case needed to be decided on different
principles from OL so as not to become confused.

- If the court had inquired into what the preconditions of occupation cases are (as categorisation
would encourage), then it would have seen that this case was not one of them. The Court’s very
rejection of categorisation means that a helpful tool in distinguishing between like and unlike
cases was not so readily available to it.

However, it is not possible to determine whether a prior decision is a precedent for the current case
unless one is able to categorise to work out what the similarities and differences are. Precedents
apply to cases of broadly the same category or type.

If the case to be decided falls within the same category as an existing precedent (an established
authority) and the facts really are on ‘all fours’, then the precedent ordinarily is to be followed.

- This is a point made in Robinson v Chief Constable of West Yorkshire (2018). The UK Supreme
Court opined that courts should be guided by precedent and develop the law in an incremental
manner by way of analogy with decided cases. This was correct and reflects the approach also of
the SGCA (eg Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency (2007);
“the essence of the common law … is by its very nature incremental”