Tort

BU8301

Seminars 11 & 12
©Katherine Khoo
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 Definition of Tort
• Torts are civil wrongs. They are not criminal or contractual wrongs.
• Torts are what happens when one person (or organization) injures or
causes damage to the person or property of another. The person or
organization that causes the injury or damage is known as a tortfeasor. The
person who is injured or whose property is damaged is called the victim.
• Torts can cause physical harm to people, or damage to property, or harm
to someone’s reputation or business, and cause losses.
• Torts can be intentional, like defamation, breach of confidence, passing off;
or unintentional like negligence.
• The victim / injured party is entitled to monetary damages which are to be
paid by the tortfeasor.
• Duties in tort are fixed by law, and not by agreement between the parties.

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Negligence
• Negligence is a tort.
• As a person is obliged to act with reasonable care, negligence is
failure to act with reasonable care toward a person to whom you
owe a legal duty of care.
• Ingredients:
• 1. The defendant owes a duty of care to the plaintiff; All must be
established by
• 2. The defendant breached that duty; the plain9ff to
• 3. The defendant’s breach caused the plaintiff’s loss which is not prove negligence
too remote.
Elements of Negligence

Duty of Care Breach of Duty Resul2ng

Damage 3
Duty of Care
• The case of Donoghue v Stevenson established the modern law of negligence, laying
the foundations of the duty of care, establishing the neighbour principle, showing
who is proximate.
• Donoghue v Stevenson (1932) HL
• Facts: Mrs D’s friend bought a boPle of ginger beer for her. Ginger beer
was contained in a dark opaque boPle which also contained a parSally
decomposed snail. Consequently, Mrs D suffered from shock and severe
gastroenteriSs.
• Issue: Who could be sued?
• Mrs D could not sue friend because it was a social arrangement at best.
Mrs D could neither sue vendor or manufacturer in contract since no
contractual nexus. She decided to sue the manufacturer.
• HL had to determine whether manufacturer owed a duty of care to
consumer.
• Held: The manufacturer owed a duty of care to Mrs D (consumer) [or an
ulSmate consumer] to take reasonable care in the manufacture of the
drink, as he had a duty not to injure her. 4
 The Neighbour Principle
• Lord Atkin : “ ‘ The rule that you are to love your neighbor ’
becomes in law, ‘you must not injure your neighbor’…. You must
take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
Who then in law is my neighbour? The answer seems to be –
persons who are so closely and directly affected by my act that
I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions
which are called in question.”

Donoghue v Stevenson (1932) HL

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The Neighbour Principle applied:
• Road users owe a duty of care to all other road users around them;
• Professional persons owe a duty to their clients/customers/pa>ents.
• Carriers owe a duty to their passengers.
• Occupiers owe a duty of care to their visitors and licensees.

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 1. Duty of Care
• Existence of Duty of Care
• Test for establishing duty of care : can be different depending on
jurisdiction.
• In Singapore, the test for establishing duty of care for negligence is set
out in the case of Spandeck v DSTA (2007)
• Test applies regardless of whether we are dealing with:
• negligent acts or omissions or
• negligent misstatement and
• whether the interests invaded is physical injury or property damage
or economic loss.

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Duty of Care
• The test to determine the duty of care as set out in Spandeck
takes the form of a two-stage test based on proximity and
policy considerations together with a preliminary requirement
of factual foreseeability.

Once factual
Factual Threshold foreseeability &
foreseeability requirement proximity are
established,
Proximity there is a prima
facie duty of care
2 – stage test
Policy
Considerations

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Duty of Care :
Factual foreseeability
• Threshold requirement :
• Factual foreseeability :
• Ask : Is it reasonably foreseeable that Defendant’s carelessness
would result in injury/ harm to the plaintiff ?

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 Duty of Care:
2 – stage test in Spandeck : 1st stage
Proximity
• Proximity : There must be necessary closeness between P & D
• Factors to show necessary proximity are :
• 1. physical proximity (in the sense of space and Sme);
• 2. circumstanSal proximity (relaSonship between the parSes);
• 3. causal proximity (causal connecSon between defendant’s act and the
plainSff’s loss).

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 Duty of Care:
2 – stage test in Spandeck : 2nd stage
Policy Considerations
• A_er a prima facie duty of care is established, the court will take into
account policy consideraSons to determine whether the prima facie
duty that has been established should be negated.
• Policy Considerations : Would imposing a duty of care on D be
detrimental to public interests?
• If imposing duty of care would be detrimental to public interests, then
prima facie duty of care is negated, and NO duty of care is established
• Eg of Policy consideraSons:
• Floodgates argument– “Would imposing a duty of care open Defendant
up to liability in an indeterminate amount for an indeterminate Sme to
an indeterminate class ?” Ultramares Corp v Touche (1932)
• Hill v Chief Constable of West Yorkshire (1989) 11
Duty of Care : Bystanders
• There is no duty of care owed to bystanders or passersby.
• It is difficult to establish proximity as the duty of care owed is to
“any person who can reasonably be foreseen to be injured by the
defendant’s act or omission”.
• Generally, bystanders or passersby cannot be anticipated
and are therefore deemed not foreseeable.
• There are also policy considerations which would negate any
duty of care, if there was any remote possibility of it being
established, as such a duty of care would open the defendant up
“ to liability in an indeterminate amount for an indeterminate
time to an indeterminate class.” Ultramares Corp v Touche (1932)
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Nervous Shock/Psychiatric Harm Duty of Care : Bystanders
• Bourhill v Young [1943] AC 92
• The claimant, a lady who was in her 8th month of pregnancy, was about
to leave her tram when the defendant sped his motorcycle past the tram
and collided with a car 50 feet away from where the claimant was
standing. The defendant was killed by the impact. The claimant heard
the collision but did not see it. Shortly after, the claimant walked past
the scene of accident. The body had been removed but there was a lot
of blood on the road. The claimant went into shock and her baby was
stillborn. She brought a negligence claim against the defendant's estate.
• Held: To succeed in her claim, the claimant, Mrs Bourhill had to establish
a duty of care had been owed to her by Mr Young. To find such a duty,
the claimant must be foreseeable, or proximate to the scene of the
accident.
• No duty of care was owed by the defendant to the claimant. There was
not sufficient proximity between the claimant and defendant when the
incident occurred.

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 Spandeck approach to Duty of care
Factual foreseeability reasonable
foreseeability from a factual perspective
Preliminary Is it reasonably foreseeable that D’s carelessness
Once factual foreseeability
requirement would cause plain7ff to suffer injury/losses?
& proximity are
Proximity closeness of the relationship between established, there is a
2-stage the parties prima facie duty of care
test
Is there physical proximity or circumstantial
1st Stage proximity or causal proximity between P and D?

Policy
Are there relevant policy considerations which
negate the prima facie duty of care?
2nd Stage Floodgates – indeterminate liability, to a
indeterminate class for an indeterminate amount.

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Credit is given to Assoc Prof Dennis Ong, who has inspired the pictorial explana:on of this point.
Duty of care for negligent acts causing pure
economic loss
• Pure economic loss
• Pure economic loss may be defined as financial loss not associated
with any damage to the plaintiff’s person or property.
• Generally not claimable
• Rationale:
• Policy considerations - to prevent the opening of the floodgates to
litigation – unlimited liability for an indefinite amount?

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 Pure Economic Loss
• Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd (1973)
• The respondents negligently cut off the power supply leading to the
appellant’s steelworks. As a result, the appellant’s furnace stopped
operating and the batch of steel in the furnace was ruined.
• The English Court of Appeal held that the appellant could recover
damages for the materials used in the batch which was in the
furnace when the accident occurred (direct physical loss arising
from the negligent act) and for the loss of profit on that batch
(consequential economic loss).
• However, the appellant could not recover loss of profit on
subsequent batches which might have been produced if the
electricity had not been halted (pure economic loss).
• RSP Architects Planners & Engineers v Ocean Front Pte Ltd (1996)
• There can be liability for pure economic loss even if there is no
physical injury or damage provided there is very close proximity
between the parties and it is not a case of unlimited liability.
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Duty of care for negligent acts causing pure economic loss
• NTUC Foodfare Co-operative v SIA Engineering Co Ltd (2018)
• Facts: Driver of an air-tug knocked into a pillar supporting the floor of the transit
lounge in Changi Airport where NTUC ran a food kiosk. The Building and
Construction Authority (BCA) issued a closure order over that part of the damaged
lounge and NTUC claimed for loss of profits arising from their inability to use the
premises during the period of the closure.
• Held: The court characterised the loss as “relational economic loss” which referred
to pure economic loss that arose from damage to property (pillar of the building)
not owned by the plaintiff (NTUC) operator of the food kiosk, but which nonetheless
affected the plaintiff’s economic interests. Duty of care was established based on:
• (1) physical proximity between the parties;

https://skill-lync.com/student-projects/project-1-powertrain-for-aircraft-in-runways-10
• (2) causal proximity between the air-tug operator’s negligence and
the kiosk operator’s loss, and
• (3) the air-tug operator’s knowledge that if the air-tug collided into
structures supporting the floor of the lounge, the occupiers of that
floor would suffer economic losses flowing from their inability to use the premises.
• There were no policy reasons negating a duty of care as there was a determinate
class of claimants (business operators in the lounge). As the air-tug operator was
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found liable in negligence, his employer was vicariously liable for the loss of profits.
 Duty of care for Negligent Misstatements
• It was from the HL decision of Hedley Byrne v Heller (1964) that the courts held that a
plaintiff could claim pure economic loss for negligent misstatements.
• Hedley Byrne v Heller (1964) HL
• P Hedley Byrne was an advertising firm which Easipower submitted a large order to.
P asked their bankers to inquire into the financial stability of Easipower. P’s bankers
enquired with the company’s bankers (D, Heller & Partners Ltd). D Heller replied to P
Hedley Byrne in a letter with the clause “ without responsibility on the part of this
bank ”, that Easipower was good for conducting business with. This response from
the D was also provided for free. P relied on the references and lost £17,000.
• P Hedley Byrne sued D Heller for negligence, claiming that the information in Heller’s
letter was provided negligently and was misleading. Heller argued they owed no
duty of care to Hedley Byrne in respect to the statements, and liability was excluded.
• The action failed because D had expressly disclaimed any responsibility.
• HL Held: The relationship between Hedley Byrne and Heller was sufficiently
“proximate” so as to create a duty of care.
• It was reasonable for Heller to have known that the financial information which they
would give Hedley Byrne would be relied upon to enter into a contract of some
description with Easipower.
• However, the disclaimer discharged the duty created by Heller’s actions, as Heller
had made it clear that it was only responding on the basis of assuming no 18
responsibility.
 Negligent Misstatements
• HL held that the statement was made within a 'special relationship’ where
the P could reasonably rely on D’s care and skill in making the statement,
resulting in D voluntarily assuming responsibility for the accuracy of the
statements made. This ‘special relationship’ established proximity between
the parties, and whether a duty of care arises.
Ask • 1. Advisor possesses special skill or knowledge (Capacity);
whether:• 2. Advisor knows/ought to know the advisee would rely on the advice
for the purpose for which the advisor intended;
• 3. It is reasonable for advisee to rely on the advice;
• 4. Advisee suffers financial loss in reliance of the advice.
• Breach of Duty
• For professional advisors, the standard of care used in determining if a
breach of duty has occurred is that of a reasonable, competent fellow
professional in the same field. The duty is to exercise reasonable care and
not to ensure a particular result would happen. Lanphier v Phipos (1838)
• Resulting Loss
• Legal principles used to establish resulting loss in the tort of negligence are
also applied to establish resulting loss in the tort of negligent
misstatement. eg causation in fact and remoteness. 19
Duty of care for Negligent Misstatements
• Caparo v Dickman (1990)
• Caparo Industries purchased shares in Fidelity PLC in reliance of the
accounts which stated that the company had made a pre-tax profit of
£1.3M. In fact Fidelity had made a loss of over £400,000. Caparo brought
an acSon against the auditors claiming they were negligent in cerSfying
the accounts.
• Held: No duty of care was owed. There was not sufficient proximity
between Caparo and the auditors since the auditors were not aware of
the existence of Caparo nor the purpose for which the accounts were
being used by them. The auditors had prepared the accounts for use in
General MeeSng of all shareholders. The duty was thus owed to
shareholders in a GM, not to an individual shareholder for making
investment decisions.

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Duty of care for Negligent Misstatements
• Accountants and Auditors Professional Liability
• Caparo v Dickman (1990)
• The court further outlined requirements for establishing duty of care for
accountants and auditors:
• (1) the purpose (general or specific) was made known to the adviser at
the time of the advice;
• (2) the adviser knows or ought to know that his advice will be
communicated to the plaintiff (specifically or as a member of an
ascertainable class) for the above purpose;
• (3) the adviser knows or ought to know that his or her advice will be
acted upon by the plaintiff without independent inquiry; and
• (4) the advice was acted upon by the plaintiff to his/her detriment.

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 Duty of care for Negligent Misstatements
• contra
• Smith v Eric s Bush (1989)
• Facts: D Surveyors were engaged by Mortgagees to survey P’s house.
Mortgagor P paid for surveyor’s fees. D knew P were likely to rely on
the report. P relied on report and suffered loss. P sued D.
• Held: D liable. D were professionals who were paid for their services.
D knew nature of transacSon for which informaSon was required,
and they knew P would rely on informaSon. Hence there was
sufficient proximity between P & D. This was also not a case of
unlimited liability.

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 Duty of care for Psychiatric Harm cases /
Nervous Shock
• Nervous shock is the onset of a psychiatric illness caused by witnessing the
negligent action, or the results thereof, of another.
• The Spandeck test applies where the plaintiff suffers nervous shock or
psychiatric harm as a result of the defendant’s negligence.
Ngiam Kong Seng v Lim Chiew Hock (2008)
• Spandeck test is applied to establish that the defendant owes the plaintiff,
who has suffered nervous shock, a duty of care.
• If no duty of care is established, then the defendant cannot be made liable
to the plaintiff, ie secondary victim for his/her injury of nervous shock
arising from his/her witnessing the primary victim being injured by the
negligent act or omission of the defendant.

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 Duty of care for Psychiatric Harm cases /
Nervous Shock
• Factors to consider in a case for nervous shock include:
• (1) The claimant must have a recognisable psychiatric condition.
Ngiam Kong Seng v Lim Chiew Hock (2008)
• Grief, sorrow, deprivaSon or suffering not enough.

• (2) To establish proximity in nervous shock cases, the following MUST be proven :
• McLoughlin v O’Brian [1983] 1 AC 410 (McLoughlin)
• (a) Close ties of love and affection with victim Eg Spouses or parent & child.
Note: Inference from the courts that blood Ses have to be established for
‘closeness of relaSonship’. Family members are considered to have ‘closeness
of relaSonship’.

• (b) Proximity to accident in time and space

• - P must have witnessed accident itself or immediate a_ermath

• (c) The means by which shock is caused must be by own unaided senses
(own sight or hearing) of the event or its immediate aftermath.
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Psychiatric Harm cases / Nervous Shock

To prove proximity exists,

must show:
1. Close ties in
relationship
2. Proximity to accident
in time and place
3. Means by which
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shock is caused
 Duty of care for Psychiatric Harm cases /
Nervous Shock
• McLoughlin v O’Brian (1983)
• The plaintiff suffered severe medical trauma after seeing
her husband and her three children in hospital shortly
after a serious road accident.
• The accident was caused by the defendant’s negligence. She sued
the defendant for negligence claiming damages for nervous shock.
• HL held : Plaintiff could recover damages for her trauma suffered
from the defendant’s negligence.

Lord Wilberforce : “ It is necessary to consider three elements

inherent in any claim : the class of persons whose claims should be
recognized; the proximity of such persons to the accident; and the
means by which the shock is caused.”
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 Duty of care for Psychiatric Harm cases /
Nervous Shock
• Ngiam Kong Seng v Lim Chiew Hock (2008)
• Facts: NKS became a tetraplegic a_er a motor cycle accident allegedly caused
by LCH. LCH claimed to be a helpful bystander who rendered assistance to
NKS, which led the wife of NKS to feel graStude towards LCH. A_er discovering
that LCH allegedly caused the accident, she subsequently suffered from major
depression and suicidal tendencies resulSng from, she claimed, having been
“betrayed” by LCH.
• Held: The court applied the Spandeck test.
• The factual foreseeability requirement was not fulfilled as it was not
reasonably foreseeable that communicaSon between LCH and NKS’s wife
could have caused her psychiatric harm. There were policy reasons against
finding a duty of care from LCH’s communicaSon of informaSon.
• Her loss was too remote and caused more by her inability to cope with her
new caregiver responsibiliSes than by LCH’s acts.
• Recognisable psychiatric harm will be compensated but not grief and sorrow
which are normal human responses to the loss of a loved one. 27
 2. Breach of duty of care
• 2 Factors :
• Standard of Care
• Breach of duty of care – failure to observe the standard of care

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 Breach of duty of care
• Breach of standard of care = Failure to observe the standard of care

Test of whether a duty of care has been breached

under Blyth v Birmingham Waterworks (1856)
“the omission to do something which a reasonable
man would do; or doing something which a
prudent and reasonable man would not do.”

• A breach of duty will be established if the defendant fails to meet the

standard of care of a reasonable man in the defendant’s posiSon.

Level of care
To find out if there is a breach:
No breach 1. Find out what is the standard of care,
Standard considering all the factors.
of care
Ask: what would a reasonable & prudent man
Breach have done in the same circumstances ?
3. Did the D breach that standard ?
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 Breach of duty of care:
Standard of Care
• Standard of care
• Even though there is a single duty of care to take reasonable care,
the standard of care varies from person to person, skill to skill and
circumstance to circumstance.
• Eg A chef owes a duty of care to the people who consume his food but
the standard of care would vary between a Michelin starred professional
chef and a cooking school student.
• Objective standard
• “reasonable man” test : Ask :
• What precautions would a reasonable and prudent person
[of same occupation with similar level of experience] have done in
the same circumstances to avoid the damage or loss?

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 Breach of duty of care
Standard of Care
• Depends on the following factors:
• 1. Level of skill or experience:
• The acceptable standards and pracSces of a given profession or
industry will set the benchmark and a defendant is expected to
demonstrate similar or equivalent level of skill.
• Phillips v Williams Whitely Ltd (1938)

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 Breach of duty of care
Standard of Care
• Depends on the following factors:
• 2. The likelihood of injury:
• Bolton v Stone (1951)
• P was injured when she was struck by a cricket ball outside her
home. There was a fence 17 _ above the cricket pitch. The distance
from the striker to where the P was standing was about 100 yards
(approximately 91m). A witness said that five or six Smes during the
last 30 years he had known balls to hit his yard.
• Held: No breach of duty since the likelihood of injury was so slight.
The cricket ground had been there for 90 years without injury. The
defendant had taken all pracScal precauSons in the circumstances.

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 Breach of duty of care
Standard of Care
• Depends on the following factors:
• 3. Seriousness of harm and magnitude of risks
• The greater the risk, the greater the care required.
• Paris v Stepney Borough Council (1951)
• Whether employer had exercised enough care in ensuring the safety of
their worker P who lost one eye during WW2 bombardment. P was not
provided with goggles at work and suffered injury resulting in loss of
sight in the remaining good eye. D argued that they do not provide
goggles for any of their other workers.
• Held : Seriousness of injury to P was greater than for a normal 2-eyed
man, and a greater degree of care should have been exercised. D were
held to have breached their duty of care.
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 Breach of duty of care
Standard of Care
• Depends on the following factors:
• 4. Cost and practicability of preventive measures
• Latimer v A.E.C Ltd (1953)
• D’s factory floor had become flooded in an unusually heavy rain storm
causing a mixture of water and oily coolant to coat the floor. D engaged
contractors to dry the premises and spread sawdust on the floors. The
defendant had taken all necessary steps (short of closing the factory
which was too costly) to ensure safety but P slipped, injuring himself.
• Court held that The employer was not negligent because it had done all
that could reasonably be expected of it having regard to the degree of
risk; hence there was no breach of the duty of care. The risk of injury
was not so great as to require them to take the extreme step of actually
closing down the whole factory until the floor was no longer slippery.
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Breach of duty of care
Relevant factors in determining standard of care.
Generally speaking, if :
Skill / Experience Standard of care
Likelihood of harm Standard of care
Seriousness of harm Standard of care
Magnitude of risk Standard of care
Cost of avoiding risk If cost is high, then necessary only if risk is high
If cost is low, then may be necessary even if risk is small
The law is not impractical & will consider costs of preventive measures.
High Risk Low cost of prevention Should take preventive measures
High Risk High cost of preventive measures Should take preventive measures
Low Risk High cost of preventive measures Need not take preventive measures
Low Risk Low cost of prevention Should take preventive measures but face risk if don’t
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 Breach of duty of care
Res ipsa loquitur
• Burden of proof is on Plaintiff to prove breach of duty of care.

• Exception:
• Res ipsa loquitur
• To invoke doctrine, P shows that:
• (1) Injury/damage would not have happened but for D’s negligence or if D
had taken proper care;
• (2) “thing” which caused mischief was under D’s (or his servant or agent’s)
control and management ; and
• (3) there is no other adequate or reasonable explanation for the accident.
• When a plaintiff asserts res ipsa loquitur, there is a presumption of
negligence. The court will ask the defendant to explain and prove that he
was not negligent.
• Res ipsa loquitur would only be raised by the plaintiff in cases where it is
very obvious that there has been carelessness on the part of the defendant.
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 Breach of duty of care
• Res ipsa loquitur (“the thing speaks for itself”)
• Scott v London & St Katherine’s Docks (1865)
• D owned docks and warehouses and operated a crane for loading and
unloading goods. P was entering D’s warehouse when 6 bags of sugar
fell from a crane above him and injured him.
• Held: Since D controlled the crane and the accident would not have
happened but for D’s negligence, Res ipsa loquitur applied and D was
presumed negligent unless he convincingly explains that the accident
was not due to his negligence.
• Read also Ward v Tesco Stores Ltd (1976)

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 3. Resulting Damage
• Causation in fact
• Did D’s negligent act/omission factually cause the Injury/damage?
• Apply the “but for” test to establish “causation in fact”.

• But-for test: P would not have suffered loss but for the D’s negligence
• Ask : But for D’s negligence, would P have suffered injury/damage?

• Barnet v Chelsea & Kensington Hospital (1969)

• P mistook a glass of arsenic for water and drank it. P was rushed to the hospital
but the doctors were negligent and failed to examine him. P was told to go
home and died 5 hours later. P’s estate sued the hospital.
• Issue: Did D’s negligence cause P’s death?
• Held: The hospital owed P a duty of care which they breached.
• However, applying the but-for test, the hospital’s negligence did not
cause P’s death. Even if P received proper medical treatment, P would
have died anyway because of the lethal consumption of Arsenic.
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 Resulting Damage: Causation in fact
• Breaking the chain of causation
• Novus actus interveniens is Latin for a "new intervening act”
• Novus actus interveniens is "an independent event which, after the
wrongdoer's act has been concluded, either caused or contributed to
the consequence concerned"
• The Oropesa (1943)
• For a novus actus to break the chain of causation, “[I]t must be shown
that there is something which I will call ultraneous, something
unwarrantable, a new cause which … can be described as either
unreasonable or extraneous or extrinsic.”

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Resulting Damage: Causation in fact
Novus actus interveniens
• McKew v Holland [1969] 3 All ER 1621
• The claimant sustained an injury at work due to his employer's
breach of duty. He strained his back and his leg was prone to giving
way. Whilst in this state he tried to climb down a steep staircase
without a handrail & unaided. He got part way down and felt his
leg give way so he jumped 10 steps to the bottom. He suffered a
fractured right ankle and was left with a permanent disability.
• The defendant accepted liability for the injury sustained during his
employment but disputed liability for the second injuries resulting
from the claimant's action in jumping down the stairs.
• Held: The claimant's action amounted to a novus actus
interveniens because his action in attempting to climb the steps
unaided knowing that his leg might give way was unreasonable.
The defendant was therefore not liable for the injuries resulting
from the incident on the stairs.
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 Resulting Damage: Causation in fact
Novus actus interveniens
• If the behavior of the P was not unreasonable in the circumstances,
the chain of causation may not be broken.

• TV Media Pte Ltd v De Cruz Andrea Heidi

• P consumed Slim 10 pills and suffered liver damage. In her action for
negligence, it was argued that as she did not immediately see a doctor
after experiencing some unusual symptoms, that broke the chain of
causation. However, the court rejected the argument as what she did
was not unreasonable in the circumstances.

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 Resulting Damage:
Remoteness / Causation in law
• Not all injury or losses suffered is recoverable.
• The loss must not be too remote.
• Only losses which are reasonably foreseeable are recoverable in law.
Reasonable foreseeability test under The Wagon Mound
Whether a reasonable man would have foreseen
that kind of damage to plaintiff ?
• As long as the kind of damage is foreseeable, it does not matter that the
exact damage or extent of damage is foreseeable. D is liable for full
extent.

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 Resulting Damage:
Remoteness / Causation in law
• The Wagon Mound
• The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf
in Sydney Harbour. Some cotton debris became embroiled in the oil and
sparks from some welding works ignited the oil. The fire spread rapidly
causing destruction of some boats and the wharf.
• Held: The test is whether the damage is of a kind that was foreseeable.
If a foreseeable type of damage is present, the defendant is liable
for the full extent of the damage, no matter whether the extent of
damage was foreseeable.
• The defendants were in breach of duty. Damage caused by fire was a
direct consequence of the defendant’s breach of duty. However, it was
unforeseeable that fuel oil would burn in water. Hence damage suffered
by Plaintiff was not reasonably foreseeable. Plaintiff’s claim failed.
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Resulting Damage:
Remoteness / Causation in law
• Extent of the injury/damage
• “Eggshell skull” (thin skull) rule
• D must take his vicSm as he finds him.
• If P suffers from a medical condiSon which makes his injuries
more severe, D will be liable for the full extent of his injury even
though that medical condiSon was not reasonably foreseeable.
• Hence, the fact that the plainSff had a pre-exisSng weakness
which caused him to suffer a greater injury than a normal
person is not a defence for the defendant.

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 Resulting Damage:
Causation in law/Remoteness
• Smith v Leech Brain & Co (1962)
• P was employed as a galvaniser of steel for the D. He was operaSng a
machine in the workplace when a piece of molten metal burnt his lip,
a_er he shi_ed from the protecSve shield. Although the burn was
treated, the burn triggered a pre-malignant cancer on his lips which he
died from, about 3 years later.
• The court held that D liable for P’s death. The defendant had to accept
the plainSff as the defendant finds him – that is, that the plainSff had a
pre-disposiSon to cancer.
• Lord Parker CJ said: ‘The test is not whether these employers could
reasonably have foreseen that a burn would cause cancer and that
[the vic7m] would die. The ques4on is whether these employers could
reasonably foresee the type of injury he suffered, namely, the burn. What, in
the par7cular case, is the amount of damage which he suffers as a result of
that burn, depends upon the characteris7cs and cons7tu7on of the vic7m.’ 45
 Who can sue for personal injury ?
• - The injured party himself if he is an adult;
• - If the injured party is a minor, his parent(s);
• - If the injured party has died, his personal representative i.e.
administrator or executor.
• Claims for:
General damages - General damages are awarded to compensate for
the direct effects of the “mishap/accident”, where the claimant’s injuries
can be clearly linked to the defendant’s actions or behaviour. Eg pain
and suffering, physical injury, disability, lower quality of life due to
mobility restrictions, loss of unique career ie forced to change jobs.
• Special damages - Special damages are awarded to compensate for
actual out-of-pocket expenses that a claimant has incurred as a direct
result of the defendant’s actions or behaviour.
• Punitive damages - awarded at the court's discretion when the D’s
behaviour is found to be especially harmful. Punitive damages are
normally not awarded in a breach of contract claim.
• In tort liability, courts may choose to apply punitive damages, though
they typically only do so if the P can prove that the defendant engaged
in an intentional tort (wrongful acts done on purpose eg fraud, trespass, 46
defamation) and/or engaged in wanton and wilful misconduct.
 Defences
• 1. Contributory Negligence
• Both the defendant(s) and plaintiff are negligent.
• The blame is apportioned according to the proportion that they had
contributed to the plaintiff’s loss.
• The plaintiff’s contributory negligence reduces the amount of compensation
that could be recovered by him
• Contributory Negligence and Personal Injuries Act (Cap.54)
• 3.—(1) Where any person suffers damage as the result partly of his own fault
and partly of the fault of any other person or persons, …….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.
• Contributory negligence is a partial defence and is apportioned in % terms
• Sayers v Harlow UDC (1958)
47
 Defences
• 2. Volenti Non Fit Injuria (Voluntary assumption of risk)
• ‘to one who willingly consents, no harm is done.’
• A person who, with full knowledge and appreciation of the risk,
consents to the injury cannot be heard to complain of the injury.
• Volenti is a complete defence and defeats P’s claim entirely.
• Eg, consenting to participate in dangerous sports, activities like
kickboxing or bungy jumping
• It is difficult to prove volenti non fit injuria.
• Morris v Murray (1991)

48
 Defences
• 3. Exclusion of Liability / Disclaimer / Exemption Clause
• Under S2(1) of the Unfair Contract Terms Act, a clause that tries to exclude
liability for personal injury or death due to negligence is totally invalid.
• S2(2)- In relaSon to liability for other losses, such as property damage or
economic loss, such a clause will not be valid unless it saSsfies the test of
reasonableness.
• So ExempSon Clause can be used to escape/reduce liability for negligence if it
saSsfies test of reasonableness under UCTA.

49
Tort of Defamation
• Defamation occurs when an untrue statement is
published or said, which tends to lower a person’s
reputation in the estimation of right-thinking members of
society generally.

• For the statement to be defamatory, it must:

• - be published (orally, or in permanent form);
• - be untrue; and
• - refer to the plaintiff and
• - its effect must be to lower his reputation generally

50
Tort of Defamation
• “publication” means communication to another person
besides the plaintiff. If published orally, it is called slander.
If it is in printed form, it is called libel.
• Defences include:
• Justification (speaking the truth).
• Fair comment on a matter of public interest
• Privilege (e.g. statements made during parliamentary or
judicial proceedings).
• Remedies:
• Damages
• Injunction

51
 Tort of Passing Off
• Tort of Passing off occurs when a person or organization seeks to pass
off or misrepresent his goods as those of another, which has good will
or reputation attached to it, such that the public is confused as to its
origin.
• It is an action against unfair competition by a competitor who markets
his goods or services in such manner that the public is likely to be
confused as to origin; and the tort seeks to discourage activities where
one party attempts to represent his goods or services as those of
another.

• As stated in Reckitt & Coleman Products v Borden In (1990), the

following elements must be proven to establish the tort of passing off:
• 1. There is goodwill or reputation attached to P’s business
• 2. There is misrepresentation by the defendant that the goods or
services offered by him are the same as those offered by the plaintiff;
and
• 3. P has suffered or is likely to suffer loss. 52
 Tort of Passing Off
• Goodwill refers to the benefit attached to the good name,
reputation and connection of a business:
• CDL Hotels International Ltd v Pontiac Marina Pte Ltd (1998) –
regarding the goodwill attached to the name “Millenia”.
• As regards misrepresentation:
• White Hudson & Co Ltd v Asian Organisation Ltd (1964) - regarding a
case involving resembling sweet wrappers.
• However, where the plaintiff’s business name is merely descriptive
of his products, and the defendant takes steps to distinguish his
products from those of the plaintiff’s there is unlikely to be
misrepresentation. Lifestyle 1.99 Pte Ltd v S$1.99 Ltd (2000)
• The plaintiff must suffer losses or must be likely to suffer losses.
• If passing off is made out, remedies include an injunction, damages
or an account of profits.
53
Tort of Passing off
• Sarika Connosseur Café PL v Ferrero SPA (2013)
• Ferrero used the mark Nutella for its Hazelnut Spread. Subsequently,
Sarika which ran a chain of cafes started serving a drink called Nutello,
which was made using Nutella Spread and used the term Nutello in
various promo>onal materials. Ferrero sued.
• Court held: Passing off was made out. As for loss, as there was
evidence that Ferrero was going into the drinks business overseas
using Nutella, it was held that Ferrero’s foray into that line of business
in Singapore could be affected by Sarika’s ac>vi>es and hence it was
held that the 3rd element was met. The court also stated that actual
loss need not be proved.

54
Tort of inducing breach of contract
• where one party induces another to breach a contractual obligation owed
to a third-party.
• If A knows that B owes a contractual obligation to C, and procures or
induces B to breach the said obligation such that C incurs damage as a
result, A is liable to C for inducing the breach of B’s contract obligation to C.

• Requirements to establish tort of inducing breach of contract:

• (1) Knowledge of contractual relationship and intention to induce breach :
Mental element
• To establish this cause of action, it must be proven that
• (a) A knows of the existence of B’s contractual relationship with C, and
• (b) that A has intended the breach of the obligation.
• A’s knowledge may be inferred from surrounding circumstances,
and need not relate to the precise terms of the contract.
55
• (2) The defendant induced the breach of contract; inducement must be a
direct and effecIve cause of breach.
• ie A’s acIon must be a direct and effecIve cause of B’s breach.
• This requirement is saIsfied when A directly persuades B, whether with the
promise of reward or incenIves or otherwise, to commit the relevant breach.

• (3) The contract was breached; it is essenIal for inducement to result in

breach.
• ie It is essenIal that A’s inducement results in the breach of B’s contractual
undertaking to C.

56
Tort of inducing breach of contract
• A person’s interference with another’s contract may be justified in
exceptional circumstances.

• Defence of justification in exceptional circumstances:

• (i) where the interference is the inevitable result of asserting a pre-
existing legal right, or
• (ii) where it is necessary for the protection of public morals.

57
Tort of Breach of Confidence
• occurs when data or information which possesses the necessary
quality of confidence was imparted in circumstances [not] importing
an obligation of confidence I-Admin (Singapore) Pte Ltd v Hong Ying
Ting and others [2020] SGCA, which may include confidential
information which has been accessed or acquired without the owner’s
knowledge or consent.
• Alternatively, data or information which possesses the necessary
quality of confidence and provided to a person, in confidence by the
author, is disclosed to a third party, or used, without the owner’s or
author's consent.

58
 Vicarious liability
• “Vicarious liability is a form of secondary liability and which holds a
defendant liable for the negligence of another even if the defendant
had not been negligent at all.” Sundaresh Menon CJ, Ng Huat Seng v Munib
Mohammad Madni
• As strict liability arising from master-servant or employer-employee
relationship, employer is liable even though he is not in breach of duty.
• Employer is liable for a third-party’s injury caused by the wrongful act of its
employee, if the act had been committed during the course of employment.
• Vicarious liability can also be established where a duty of care imposed on an
employer has been broken, but the claimant cannot identify which employee
breached it.
• If an employer is held vicariously liable, he has a right to sue his employee to
be indemnified or reimbursed for his losses. The employer may also terminate
this employee’s contract of employment, depending on the circumstances.
• Conditions:
• 1. The tortfeasor must be an employee of the master;
• 2. The employee must have committed a tort (that he must be legally at fault);
• 3. The tort must have been committed in the course of employment. 59
 Vicarious liability
• (1) Tortfeasor must be an employee of the master
• - Employee is one who has a contract of service with his employer
• contra “independent contractors” who have a contract for service eg consultants,
doctors.
• Criteria :
• (1) Degree of control - a person is said to be a servant if his employer retains a right
of control not only the work he does, but also the way in which he does it.
• (2) Degree of integration into the business - Stevenson, Jordan & Harrison Ltd v
MacDonald and Evans, Lord Denning : “under a contract of service, a man is
employed as part of the business and his work is done as an integral part of the
business; whereas under a contract for services, his work, although done for the
business, is not integrated into it but is only accessory to it.”
• (3) Economic reality - Lee Tin Sang v Chung Chi-Keung [1990] IRLR 236 : personal
investment in the enterprise. Relevant question was ‘is the worker in business on
his own account?’ The court will consider such things as who owns the tools used,
who paid for the materials, and whether the worker stands to make anything from
a profit to a loss on completion of the enterprise.
60
Vicarious liability
• (2) The employee must have committed a tort (that he must be legally at fault)
• The employee must have committed a tort.
• The employer is only liable if his employee is legally at fault.

61
Vicarious liability
• (3) The tort must have been committed in the course of employment.
• “whether there was a sufficiently close connection between the
employee’s scope of duties and the tort he committed.”
Skandinavska Enskilda Banken AB v Asia Pacific Breweries (Singapore) Pte Ltd
• “whether there is a sufficient connection between the relationship between
the defendant and the tortfeasor on the one hand, and the commission of the
tort on the other. Has the relationship created or significantly enhanced the risk
of the tort being committed?”
Menon CJ, Ng Huat Seng v Munib Mohammad Madni [2017] SGCA 58
• If there is such a close connection, then even if the act is done intentionally,
negligently, recklessly, fraudulently or against the express orders of the
employer, the employer may be made vicariously liable.

62
Vicarious liability
• Koh Get Kee v Low Beng Hui (1987)
• Off-duty police officer accidentally shot his friend with his service revolver.
Police in defence said he was off-duty, so Police should not be vicariously liable.
• Held: Employer vicariously liable. It was the view of the members from the police
force that the nature of their work justified off-duty police officers being armed,
so that they can meet any emergencies. The police force owes a duty to members
of the public to ensure that its officers who are armed are fully aware of the risks
involved and that there are sufficient rules and regulations in place to safeguard
citizens.
• contra
• Samin v Government of Malaysia (1976)
• Employee driver, without permission, took company vehicle to stop over
his house for lunch. While returning from lunch, an accident occurred.
Court held that employers were not vicariously liable. (Here, employee
was on a frolick of his own and not in the course of employment)

63
Read the relevant chapters of the
textbooks:
Tabalujan, Ch 18;
Chandran, Ch 14;
LWL, Ch 6;
Shenoy & Loo, Ch 6.

64
 Tort of Negligence

As long as
you can Duty of care Breach of Duty Resulting Damage
foresee
that some
harm will
be caused, Spandeck v DSTA (2007) Failure to meet Res Ipsa
good Causation Remoteness
enough required Loquitor As long as
you can
standard of care foresee
Factual Proximity Policy
Breach is so self-evident that the fact that the
event occurred in itself proves the breach
Reasonable the
kind/type
foreseeability Considerations foreseeability of damage
- physical Causation in fact: test that will
proximity (in the be caused
defendant should use “but-for-test”
reasonably have sense of space to find physical As long as
foreseen that the and time); Level of skill connection of TYPE/KIND of
claimant would - circumstantial
suffer damage events damage is
proximity
from his
(relationship Likelihood of injury foreseeable,
carelessness novus actus Not necessary
between the
parties); interveniens : to foresee
- causal proximity Seriousness of injury Is there a new extent of
(causal intervening act damage
connection which limits legal
between Cost of avoiding risk Egg-shell
responsibility?
defendant’s act skull rule
Was chain of causation broken?
and the plaintiff’s
loss). Volenti : voluntary
assumption of risk
Contributory Negligence Defences
Disclaimer/Exclusion of
Liability Clause S2(1) UCTA:
exclusion for death & personal
If imposing a duty of injury is invalid
Note : If factual foreseeability care would be
& Proximity are present, then detrimental to public
prima facie duty of care is interests, then prima
established facie duty of care is
negated and NO duty

©Katherine Khoo
of care is established. Annex
 Psychiatric Harm Cases / Nervous Shock under Tort of Negligence
Must be Recognisable
psychiatric condition
Ngiam Kong Seng v Lim Chiew Hock (2008)

Duty of care Breach of Duty Resulting Damage

Spandeck v DSTA (2007)
Res Ipsa Causation Remoteness
Loquitor
Policy
Breach is so self-evident that the fact that the Causation in fact: Reasonable
Factual Proximity event occurred in itself proves the breach
use “but-for-test” foreseeability
foreseeability Considera:ons
1.Close Aes in Failure to meet to find physical test
defendant should relaAonship required connection of
reasonably have 2. Proximity to standard of care events As long as
foreseen that the accident in Ame
claimant would
TYPE of
and place
suffer damage 3. Means by novus actus damage is
from his
which shock is Level of skill interveniens : foreseeable,
carelessness Is there a new Not necessary
caused
Likelihood of injury intervening act to foresee
which limits legal extent of
Seriousness of injury responsibility? damage
Was chain of causation broken?
Egg-shell
Cost of avoiding risk
Volenti : skull rule
voluntary
If imposing a duty of assumption of risk
Note : If factual foreseeability care would be Contributory Negligence Defences
& Proximity are present, then detrimental to public
Disclaimer/Exclusion of
prima facie duty of care is interests, then prima Liability Clause S2(1) UCTA:
established facie duty of care is exclusion for death & personal
negated and NO duty injury is invalid
of care is established.
©Katherine Khoo Annex
 Tort of Negligent Misstatement
Hedley Byrne v Heller (1964) Spandeck v DSTA (2007)

Duty of care Breach of Duty Resulting Damage

Standard is that of a
reasonable competent fellow
Factual Policy professional in the same field.
foreseeability
Proximity Considerations
Causation Remoteness
1. Whether Advisor
defendant should possesses special skill Failure to meet Res Ipsa Loquitor Reasonable
reasonably have or knowledge foreseeability
foreseen that the
required Breach is so self-evident that the fact that the
(Capacity); event occurred in itself proves the breach
test
claimant would 2. Whether Advisor standard of care
suffer damage knows/ought to know
from his the advisee would rely Causation in fact: As long as
carelessness on the advice for the use “but-for-test” TYPE of
purpose for which the Level of skill to find physical
advisor intended;
damage is
3. Whether It is connection of foreseeable,
reasonable for advisee Likelihood of injury events Not necessary
to rely on the advice; to foresee
4. Whether Advisee novus actus interveniens :
suffers financial loss in Seriousness of injury extent of
reliance of the advice. Is there a new intervening damage
act which limits legal
Cost of avoiding risk responsibility? Egg-shell
Was chain of causaTon broken? skull rule
Volenti :
voluntary
assumption of risk
Contributory Negligence Defences
Disclaimer : reasonable under the UCTA?
If imposing a duty of
Note : If factual foreseeability Negligent Misrepresentation S2.
care would be
& Proximity are present, then Misrepresentation Act Negligent Misstatement
detrimental to public
prima facie duty of care is -False statement of fact (Hedley Byrne & Spandeck)
interests, then prima
established -made carelessly, negligently -requires proximity
facie duty of care is
-Must induce a contract -Contract not required
negated and NO duty
-no proximity required -Remedy : damages
©Katherine Khoo
of care is established.
-Remedy: rescission & damages Annex
 Tort of Negligent Misstatement
Caparo v Dickman (1990) Spandeck v DSTA (2007)

Duty of care owed by

accountants & auditors Breach of Duty Resulting Damage
Standard is that of a
reasonable competent fellow
professional in the same field.
Factual Policy
foreseeability
Proximity Considerations
Causation Remoteness
Requirements: Failure to meet Res Ipsa Loquitor
defendant should
(1) the purpose (general required Breach is so self-evident that the fact that the
Reasonable
reasonably have foreseeability
or specific) was made standard of care event occurred in itself proves the breach
foreseen that the
known to the adviser at test
claimant would Causation in fact:
the time of the advice;
suffer damage
(2) the adviser knows or Level of skill use “but-for-test” As long as
from his
ought to know that his to find physical
carelessness TYPE of
advice will be connection of
communicated to the Likelihood of injury damage is
plaintiff (specifically or as events foreseeable,
a member of an
Seriousness of injury Not necessary
ascertainable class) for novus actus interveniens : to foresee
the above purpose; Is there a new intervening extent of
(3) the adviser knows or Cost of avoiding risk act which limits legal
ought to know that his or damage
her advice will be acted
responsibility?
upon by the plaintiff Was chain of causaTon broken? Egg-shell
without independent skull rule
inquiry; and Volenti :
(4) the advice was acted voluntary
assumption of risk
upon by the plaintiff to
his/her detriment. Contributory Negligence Defences
Disclaimer : reasonable under the UCTA?

If imposing a duty of Negligent Misrepresentation

Note : If factual foreseeability
care would be
& Proximity are present, then detrimental to public
prima facie duty of care is
interests, then prima
established facie duty of care is
negated and NO duty
of care is established.
©Katherine Khoo
Negligent Misstatement
S2. Misrepresentation Act
(Hedley Byrne & Spandeck)
-False statement of fact
-made carelessly, negligently -requires proximity
-Contract not required
-Must induce a contract
-no proximity required -Remedy : damages
-Remedy: rescission & damages Annex
 Some Torts in Business
©Katherine Khoo

Vicarious Liability Passing Off Defamation Tort of Inducing

Employer liable for When tortfeasor when an untrue statement is Breach of Contract
employee’s tort, even seeks to pass off his published which tends to lower where one party induces
though he himself not goods or services as a person’s reputa:on in the
those of another another to breach a
in breach of duty es:ma:on of right-thinking
contractual obligation
members of society generally owed to a third-party.
Goodwill is intangible;
Goodwill/re
Tortfeasor Employee Tort must have is associa1on in the
Published to 3P:
putation minds of customers in (1) Mental element:
must be an must have been commiGed the brand or orally (slander) knowledge of contractual
attached to
employee of committed in the course of trademark
or written (libel)
Plaintiff’s Biz relationship and intention
the master a tort employment. Can be 1.
to induce breach
Misrep by infringement of untrue
Trademarks Act :
Employee Test: Whether there is a Defendant that Trademark
refer to plaintiff (2) Inducement must be
must be close connecAon goods/services infringement & 2.
common law tort
a direct and effective
legally at between nature of are same as ac1on of passing off Its effect must be to cause of breach.
fault employer & employee’s
those of Plaintiff lower plaintiff’s (3) Essential for
wrongdoing ?
If yes, even if act is done
reputation generally
Plaintiff has inducement to
intenAonally, negligently, result in breach.
recklessly, fraudulently or
suffered loss
against express orders of (4) Damage must
employer, employer may have been sustained
Defences :
be made vicariously liable
Justification, Fair due to breach
Remedies : comment, Privilege
Injured Party v Employer Injunction, damages, Defences :
Defences of Master/employer:
account of profits jus:fica:on in excep:onal circumstances:
Tortfeasor not employee of Remedies :
master, No tort committed, or (i) where the interference is the inevitable
Damages, Injunction result of asser:ng a pre-exis:ng legal right, or
tort was not committed in the
course of employment (ii) where it is necessary for the protec:on of
Employer v Tortfeasor employee public morals.
Remedies to Master/employer
Indemnity, Reimbursement, Remedies :
Termination of Employment K Damages, Injunction Annex