Suing for Negligence in Singapore

A person may rely on the area of tort law of known as negligence as a cause of action to take legal action against another party, if he has been victimised by the latter’s negligent (i.e. careless) behaviour. This is especially helpful if there was no contract between the victim (i.e. the “Claimant” or “Plaintiff” in the lawsuit) and the perpetrator (i.e. the “Defendant” in the lawsuit), such that the victim cannot rely on rights under contract law for compensation.

The tort of negligence is a frequent tool relied upon to right a wrong. Negligent behaviour manifests in a great variety of circumstances, ranging from traffic transgressions and medical malpractice to property damage and unneighbourly misconduct.

To sue for negligent behaviour, there are 3 main elements that must be satisfied:

1. Duty of Care: The Defendant Must Owe the Claimant a Duty of Care

In 2007, the Singapore Court of Appeal handed down the landmark decision of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency (“Spandeck case”). This case set out a 2-part test for determining the existence of a duty of care.

This test is based on 2 main considerations – proximity and policy. Before these considerations applied however, the Claimant would also have to prove that the harm he suffered was factually foreseeable.

Factual foreseeability

The Claimant must prove that it was foreseeable that the Defendant’s act might have resulted in the harm that the Claimant had suffered.

For example, if the Claimant had been injured by a potted plant thrown by the Defendant from the 10th floor of an HDB block, the court may find that it was foreseeable that the Defendant’s throwing of the potted plant might injure someone.

Proximity

For the Defendant to owe the Claimant a duty of care, the Claimant must prove that there was sufficient legal proximity between him and the Defendant.

Legal proximity can be proved in a few ways, such as:

• Physical proximity: the actual physical distance between the Claimant and the Defendant (or their property)
• Circumstantial proximity: the relationship between the Claimant and the Defendant, such as that of employer and employee
• Causal proximity: how closely or directly related the Defendant’s negligent act (or course of action) is, to the loss or injury sustained by the Claimant

For example, a man who throws a glass bottle into the sea in Australia is probably not proximate to a man who steps on and is injured by the same bottle on a Singapore beach.

Voluntary assumption and reliance

In deciding whether there was sufficient legal proximity between the parties, the “twin criteria” of voluntary assumption of responsibility and reliance must be taken into consideration as well.

A duty of care may also be found if the Defendant voluntarily assumed responsibility for his acts or omissions towards the Claimant, and the Claimant relies on him taking up such a responsibility (and suffers injury as a result).

For example, in most cases where a trishaw driver has implicitly promised to deliver his passenger safely to a location, he owes that passenger a duty of care.

As the law develops, the list of factors that can prove legal proximity between parties has since been extended to include control, vulnerability and knowledge.

Policy

When the above-mentioned criteria are fulfilled, a duty of care arises. In other words, the Defendant will be held to have owed the Claimant a duty of care.

However, public policy also needs to be taken into consideration, in order to determine whether the duty of care owed by the Defendant should be negated or limited.

An example would be where there was a contract between the Claimant and the Defendant which clearly defined both parties’ rights and liabilities under the contract, and where both parties had roughly equal bargaining power in negotiating the contract’s terms.

If the Defendant’s obligations had already been clearly set out in the contract, and his negligent act fell outside of that scope of liability, then public policy considerations might apply to negate the Defendant’s duty of care to the Claimant.

Alternatively, the court may hold that there are policy considerations against imposing a duty of care on public authorities, as the public authority might then have to divert limited time and resources away from carrying out its operations to defend against a lawsuit for negligence.

2. Breach: The Defendant has Breached His Duty of Care to the Claimant

Standard of duty of care

Before the Claimant can prove that the duty of care owed to him by the Defendant has been breached, the Claimant will first have to establish the standard of care to which the Defendant should be held.

In other words, the Claimant has to prove that the Defendant owed him a duty to exercise a certain standard (i.e. level) of care towards him, but failed to meet such standards (and therefore he breached his duty of care to the Claimant).

In this case, the standard of care would be that of a reasonable person in the same circumstances. The Claimant must therefore prove that the Defendant acted below the standards of a reasonable man, judging not by his own characteristics, but by the nature of the task he is performing, and the circumstances under which he is performing it.

For example, if a person runs over a pedestrian’s foot while riding an e-scooter, the court may decide whether a reasonably skilled man riding the e-scooter with due care in the same circumstances would have been able to avoid the accident.

Breach of duty of care and res ipsa loquitur

The actual breach of duty of care (i.e. the acts or omissions of the Defendant which led to the Claimant suffering damage) is to be determined according to the specific circumstances of the case.

The only time the Claimant would not have to prove exactly what act or omission of the Defendant caused the accident is where the accident was obviously due to the Defendant’s negligence. This situation is known as “res ipsa loquitur“, which is Latin for “the thing speaks for itself”.

For res ipsa loquitur to arise, a few factors that must be taken into consideration:

• The means by which the damage was caused must have been within the Defendant’s sole control;
• The accident would not have happened if care had been taken; and
• There was no other explanation for the accident other than the negligence of the Defendant, and the Defendant does not offer any alternative explanations

However, a successful plea in this case does not mean that the Claimant’s case has been fully established. Rather, the Claimant just does not have to prove that the Defendant was negligent because such negligence will be presumed to have occurred.

The burden will then be on the Defendant to prove how the accident had happened if it did not occur as a result of his negligence. For example:

• The Defendant was not in sole control of the means by which the damage was caused
• The accident could have occurred in many ways, where some of these ways involved the Defendant’s negligence, or the Claimant’s own negligence, or the combined negligence of both parties
• The Defendant can offer an alternative explanation for how the accident occurred, which does not involve any negligence on his part

3. Causation and Remoteness: The Damage Suffered by the Claimant was Caused by the Defendant’s Breach of Duty of Care, and was Not Too Remote

The damage suffered by the Claimant must have been caused by the Defendant’s breach of duty of care, and not due to anything else. Also, the damage suffered by the Claimant as a result of the breach must not be too remote.

Causation

There must be causation of damage present – in other words, the Claimant must prove that the damage to him would not have happened but for the Defendant’s negligent act.

This is because even if it can be shown that the Defendant breached his duty of care to the Claimant and that the Claimant sustained damage, the damage that the Claimant suffered must have been a result of the breach and not due to any other reason.

There are, of course, exceptions to this. If the chain of events causing the Claimant’s loss is interrupted by an external factor that was not reasonably foreseeable, any damage caused after it might be considered as too remote. If so, the Defendant would not be held liable for the Claimant’s losses.

For example, if the Claimant slipped on wet floor, fell, and broke a finger as a result of the Defendant’s failure to keep the floor dry and safe for walking, it is likely that the Defendant would be held liable for the Claimant’s finger injury. However, if the Defendant’s negligence caused the Claimant to slip and fall, but someone else accidentally stepped on and broke the Claimant’s finger as he was on the floor, it is unlikely that the Defendant would be held liable for the Claimant’s finger injury.

Remoteness of damage

The Claimant must also prove that the damage suffered by him was reasonably foreseeable by the Defendant (and in other words, not too remote) at the time of the breach. The exact circumstances of the accident need not be foreseeable, but the type of damage caused must have been foreseeable by the Defendant.

This rule on the remoteness of damage also applies to cases of psychiatric trauma. In Singapore, the law requires the Claimant to establish that the specific psychiatric injury was foreseeable, and that there was legal proximity between the parties.

The only exception to the rule that damage caused to the Claimant must be reasonably foreseeable before the Defendant would be liable for that damage would be the “eggshell rule” (also known as the “eggshell skull rule” or “thin skull rule”).

Under this rule, the Defendant cannot avoid liability for damage just because the Claimant so happened to be more likely to suffer injury, as compared to other persons, due to a physical disability or condition. As a result, even if the Defendant did not intend to cause such a severe injury as the one suffered by the Claimant as a result of the Defendant’s actions, he can still be held liable.

For example, the Defendant accidentally punched the Claimant in the head. While other people may have just suffered a large bruise on their head, the Claimant had a skull that was as thin as an eggshell and suffered fatal brain injury as a result of that punch. So even though it is arguable that the Defendant could not have foreseen the Claimant dying from a punch to the head, the Defendant would still be liable for the Claimant’s death.

Defences to Negligence

While all of the points mentioned earlier need to be proven in order to sue for negligence, it is also crucial that the Defendant is unable to raise any defence to the Claimant’s action. If the Defendant is successful in his defence, he may be able to lower the compensation he has to pay, or reduce or absolve himself from liability entirely.

Common defences to negligence have been listed in the table below.

Quantification of Loss(es)

On top of proving all the factors mentioned above, the Claimant’s loss arising from the Defendant’s breach of duty of care must be quantified appropriately.