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  • BNJ (suing by her lawful father and litigation representative, B) v SMRT Trains Ltd and another
    the defendants took reasonable precautions in operating and regulating the MRT system to avert such harm A legitimate factor to consider in analysing the reasonableness of the defendants precautions is the cost of those precautions As Mason J said in Wyong Shire Council v Shirt 1980 146 CLR 40 at 47 48 The perception of the reasonable man s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant s position 66 Potential precautions are infinite Resources are finite Looking at the issue slightly more broadly it is legitimate at this stage of the inquiry to consider the costs of the precautions taken to avert the risk or as is usually more important the costs of the precautions not taken to avert the risk I use the term costs in the sense that economists use it In that sense costs is a broader concept than just expense or dollars and cents Costs are the opportunities that an economic actor forgoes by making a choice Determining whether a defendant has taken reasonable care requires striking a reasonable balance between the posited precautions and the cost of those precautions 67 The classic illustration of this balancing exercise is Overseas Tankship UK Ltd v The Miller Steamship Co Pty and Another 1967 AC 617 The House of Lords there found the defendant shipowners liable for discharging flammable oil into a harbour opining that there was a real risk of the oil catching fire and that action to eliminate it presented no difficulty involved no disadvantage and required no expense at 643 644 Lord Reid also stated that a reasonable man may neglect a risk of small magnitude if he had a valid reason such as that it would involve considerable expense to eliminate the risk He would weigh the risk against the difficulty of eliminating it at 642 emphasis added 68 Similar reasoning is seen in B A Child v Camden LBC 2001 PIQR P9 That case concerned a young child who was trapped between uninsulated central heating pipes in the defendant local authority s premises and suffered burns as a result The court found that the local authority owed the plaintiff a duty of care under both statute and the common law at 56 The court then turned to assessing whether that duty had been breached The plaintiff argued that the defendant did breach the duty because it failed to insulate or lag the pipes The court considered the cost to the local authority of eliminating this risk of burns and weigh ed that evidence in the scales when assessing the extent of the duty of care and whether it ha d been breached at 60 In the result the court held that the local authority was not negligent in deciding not to insulate or lag the pipes One of the factors the court considered was that the risk of the particular danger occurring was extremely slight and that the local authority could also be taken to assume that the safety of young children was a shared responsibility with parents As the court said at 96 This in my judgment is the key factor in the local authority being able to conclude that the risk is so slight even though an injury if sustained may be serious that they need not take the step of protecting the pipework in their properties In addition they could properly take into account the fact that the cost of so protecting the pipework would be very substantial indeed compared with their annual budget for heating even if only the pipework itself as opposed to the radiators was to be protected This is a factor which they can properly weigh in the balance 69 The court acknowledged that the public tolerance of risk had been reduced over the past 15 years since the occurrence of an identical incident in a case cited by the plaintiff Ryan v London Borough of Camden 1982 8 HLR 72 Ryan The court then stated at 88 91 What is clear is that after the case of Ryan the local authority must be taken to know that this particular danger existed In spite of the decision in their favour in that case should they have decided that now they knew of the danger they should protect all the pipework in their housing stock or at least in those properties where the heating was outside the control of the tenants No evidence has been put before me as to what consideration the local authority gave to this matter This is unsatisfactory but not determinative of the action I must consider what the reasonable local authority would have done in such circumstances In making a decision the local authority should have taken into account the magnitude of the risk the likelihood of injury the gravity of the consequences and the cost and practicability of overcoming the risks see Walker v Northumberland County Council above and Charlesworth and Percy on Negligence chapter 6 The Standard of Care On the evidence before me I am satisfied that a local authority could properly have concluded that the risk although it had materialised in the case of Ryan was slight Mr Cairns did not suggest that such accidents were common and the fact that injury is only likely to occur when someone is trapped in itself makes the risk of such accidents occurring slight emphasis added 70 There are two similarities between B A Child and the present case which I note at this juncture and a third which I will come to shortly see 80 below First the defendants clearly knew of the particular risk which caused the plaintiff s injury because that very risk had materialised in the past Second that risk was extremely slight and had to be balanced against the wide ranging cost in the broadest sense of taking precautions to address it across an entire system for which the defendants were responsible Breach of duty The existing safety features 71 AMK Station had a number of existing safety features note 67 which are present in all aboveground MRT stations These features are in turn requirements stipulated by a document known as the Architectural Design Criteria note 68 The LTA produces the Architectural Design Criteria It is reviewed and approved by the LTA s top management each year It contains input from all divisions of the LTA 72 A number of the existing safety features are structural and have been in place since AMK Station was constructed Mr Teo explained these features There is a bold yellow line along the full edge of the platform which is 110 mm thick and set 635 mm from the edge of the platform This line indicates that passengers should stand at least 745 mm back from the platform edge There is also a row of tactile warning studs 300 mm wide installed before the yellow line along the entire length of the platform to warn passengers that they are approaching the platform edge In addition in 1998 SMRT installed orange nosing onto the platform edge This serves the dual purpose of being a visible warning to passengers of the location of the platform edge and reducing the gap between the platform edge and the berthed train from 100 mm to 75 mm note 69 There are also train stop buttons at all platforms and at the passenger service centres to allow passengers to stop the movement of trains in case of emergency emergency phones located at all platforms and a CCTV system which enables the station staff to monitor and control crowds The present CCTV system is an enhancement of the original video surveillance system which existed when the MRT system was commissioned In July 2006 the LTA installed more CCTV cameras to enable SMRT s station personnel at the Passenger Service Centre to monitor and control crowds better and to deal more quickly with observed emergencies note 70 73 Besides these structural measures AMK Station also utilises audio and visual warnings note 71 Mr Teo explained that there are trackside signs reminding passengers not to step beyond the yellow line until the train stops There are signs which state Danger in four languages forbidding persons from going down to the tracks and notifying them of the penalty for doing so These trackside signs have been modified and enhanced over the years Signs are posted to deter suicides They state in four languages Value Life Act Responsibly A pre recorded announcement is automatically broadcast in four languages about one minute before a train reaches the MRT station reminding passengers to stand behind the yellow line 74 Mr Teo explained that since August 2008 SMRT has deployed extra station personnel at platforms during peak hours on weekdays to control human traffic SMRT also initiated various customer education programs between 2004 and 2006 note 72 which are currently ongoing The programs use posters leaflets and television broadcasts played at MRT stations to remind passengers about safety Between 2009 and 2011 SMRT introduced various television programmes to deliver safety messages to the viewing public SMRT also runs safety campaigns every year note 73 75 There was also evidence that the defendants carry out periodic review and evaluation of their safety measures Mr Teo s evidence was that each time an incident occurs at an MRT station the station manager prepares a Safety Information System Report SIS Report The SSD eventually uses the SIS Report to identify the causes of the incident and to review the adequacy of existing safety measures Mr Teo testified that SMRT conducts monthly monitoring of safety statistics and analysis of the trends and that these records are subject to periodic review by senior management note 74 He also explained that SMRT carried out research in 2009 to evaluate the distance of the yellow line from the platform edge note 75 However SMRT proposed no new structural measures because the outcome of the evaluation exercises was always that the existing safety features were adequate to reduce risk to as low a level as was reasonably practicable Installation of half height platform screen doors 76 None of these safety features address the risk which eventuated and injured the plaintiff The only safety feature which would have addressed and indeed eliminated that risk is the installation of platform screen doors PSDs PSDs are a physical barrier at the platform edge with embedded sliding doors These sliding doors remain closed at all times except when a train is stationary at the platform At that time they open to allow passengers to board and alight the train 77 The North South and East West MRT lines include a mix of underground and aboveground stations All underground MRT stations on these lines have been equipped with full height PSDs from the time they came into operation in 1987 The defendants evidence is that the primary reason for installing full height PSDs was not to make the underground stations reasonably safe They were installed primarily to conserve energy in air conditioning the platforms in those stations note 76 Aboveground stations do not have air conditioned platforms and were therefore designed and built without any PSDs note 77 78 In 2008 the LTA took a decision to retrofit half height PSDs in all 36 aboveground MRT stations in the North South and East West MRT lines The defendants evidence was that the motivating factor was not to make the aboveground stations reasonably safe because they were already reasonably safe without half height PSDs but to prevent system wide delay and service disruption and to reduce the social cost to all commuters caused by track intrusions The retrofit of half height PSDs began in 2009 and finished in March 2012 The cost to the LTA of the entire retrofit was 126m The retrofit included AMK Station The installation of half height PSDs at AMK Station commenced in July 2011 just 4 months after the plaintiff was injured and finished in December 2011 note 78 79 PSDs eliminate accidental track intrusions That is why once the retrofitting of half height PSDs was completed in 2012 one under incidents fell to zero see 61 above If the half height PSDs had been in place in AMK Station on 3 April 2011 they would have as a certainty prevented the plaintiff from falling onto the tracks and from suffering the injuries that she did 80 I was told that the LTA undertook a cost benefit analysis note 79 before eventually taking the decision in 2008 to install the half height PSDs I was further told that this cost benefit analysis was contained in a document known as the LTA master plan note 80 As in Re B A Child see 68 above the LTA did not give discovery of or offer inspection of this document or of the relevant parts of it Equally plaintiff s counsel did not ask for discovery of this document when he learned during trial of its existence The master plan is therefore not in evidence before me Again as in B A Child this is unsatisfactory but is not determinative of the action I must consider what a reasonable MRT operator and regulator ought to have done and not what these defendants actually did Evidence of the safety engineers 81 Structural safety features such as PSDs are not ultimately within SMRT s control Under the two contracts between SMRT and the LTA namely the Licence and Operating Agreement LOA and the Lease Maintenance Agreement LMA SMRT has no power independently to implement structural modifications to AMK Station SMRT s witnesses also testified that SMRT cannot erect fixed barriers at platform edge note 81 such as PSDs without the LTA s permission In relation to passenger safety SMRT s role is to develop document and implement a Safety Management System for operating and maintaining the Working Network and for ensuring passenger and employee safety subject to LTA s prior written approval and having regard to established industry standards and practices on safety and other guidelines and directives on safety as may be prescribed by the LTA from time to time see clause 8 1 of the LOA note 82 emphasis added So if the omission of PSDs is a culpable omission it can only be the LTA which is culpable not SMRT 82 The LTA s Principal Design Manager Mr Andrew John Mead Mr Mead gave evidence Before working for the LTA he worked as the architecture design manager for two new lines of the Toronto MRT system as an architect for the London Docklands Light Railway and as the chief architect for the Dubai Metro note 83 His role in the LTA includes the planning design management and construction of the LTA s stations and supporting infrastructure His evidence was that the existing safety features were consistent with safety measures applied globally on 3 April 2011 and even now He pointed out in particular that Bangkok s MRT system uses similar passive safety features as were in place in AMK Station note 84 He explained that the risk of a passenger descending to track level and being struck by a train is an undesirable risk but one that is considered tolerable under the ALARP principle by management and passengers throughout the transit industry note 85 ALARP is an acronym meaning as low as reasonably practicable Safety engineers worldwide use the ALARP principle in reducing risk It is analogous to the legal concept of a standard of care which takes into consideration the likelihood of harm the magnitude of the harm and the cost of precautions The effect of Mr Mead s evidence in engineering terms is that it is consistent with the ALARP principle to have a platform without PSDs The effect of Mr Mead s evidence in legal terms is that a platform which does not have PSDs installed is not for that reason alone a platform which is not reasonably safe My task is to determine whether this proposition is correct Marginal cost and utility 83 The reasonableness of the defendant s choice of safety features and in particular the reasonableness of the LTA s decision to omit PSDs in aboveground stations at the time the plaintiff was injured must be considered in light of the marginal cost and utility It has already been seen in B A Child that when the risk of even serious injury though foreseeable is slight compared to the cost of eliminating or mitigating that risk it can be reasonable for a defendant deliberately not to take steps to reduce or eliminate that risk In the context of rail operators my attention was drawn to the case of State Rail Authority v Mayle 1999 NSWCA 388 There the plaintiff was injured when a stone thrown from outside the train broke through the window of a carriage in which she was a passenger She sued the defendant rail authority for negligence in failing to take reasonable steps to protect passengers from injury caused by projectiles launched at trains The plaintiff s claim failed It was common for stones to be thrown at trains there was evidence that within a three year period there had been four previous incidents of stones having gone through train windows one of which resulted in passenger injury But the court found that on the statistics for total passenger journeys the risk could fairly be regarded as infinitesimal at 18 The respondent also failed to show that her suggestion of fitting protective mesh screens onto the train windows was a relatively simple solution with little inconvenience or expense At 21 the court observed that the infinitesimal risk made questions of inconvenience and expense critical 84 The Australian case of Cekan v Haines 1990 21 NSWLR 296 Cekan analysed particular concerns with regard to the cost benefit analysis undertaken by public authorities The case concerned a prisoner who suffered quadriplegia after becoming severely intoxicated while in a prison cell managed by the defendant public authority The plaintiff argued that he belonged to a well identified and highly vulnerable group of depressed and intoxicated persons and that the authority owed him a duty of care while he was under their custody to keep him under constant surveillance or ensure that the cells were fit for the purpose of his supervision The Supreme Court of New South Wales held that the authority did owe a duty of reasonable care to persons held in custody but that duty did not require the authority to alter the physical arrangements of the prison or to re arrange the disposition of police personnel so as to allow continuous or approximately intermittent surveillance of the prisoners The prison in that case was a nineteenth century building and the court noted that although the costs of modifying the building were not precisely quantified commonsense suggests that they would have been extremely high at least when looked at on a State wide basis Against such unspecified but substantial costs must be measured the duty of the State to people known to be vulnerable such as the appellant at 307 85 The judgments in this case make useful observations on countervailing considerations of cost and marginal utility when considering the extent of the duty of a public authority such as the LTA to allocate public resources to avert a known danger Kirby J noted at 306 307 So far as the economic costs involved in the appellant s case are concerned it is appropriate to take these into account when determining what reasonable conduct on the part of State authorities required in the custody of the appellant Obviously the greater the cost of the modification of institutions and procedures inherited from earlier times the less likely that the common law would impose the obligation that the modifications should be introduced at least rapidly This is but the corollary of the principle that the greater and more obvious the risk of injury the heavier is the obligation to attend to it without delay There is no simple formula for the economics of providing reasonable care Courts take economic costs into account in determining what natural justice requires of public authorities Similarly they must consider the costs of modifications said to have been necessary to attain to standards of reasonable care to avoid liability in negligence cf Johns v Release on Licence Board 1987 9 NSWLR 103 at 115 There will need to be further detailed attention in the future to the economic theory which supports arguments about what reasonable care requires cf United States v Carroll Towing Co Inc 159 F 2d 1947 R Posner Economic Analysis of Law 2 nd ed 1977 at 122f Although the resources of a State are much greater than those of any individual or corporation in it they are nonetheless limited Choices must be made in the expenditure of public funds Constitutional legislative and other machinery is provided for the making of such choices Plainly the expenditure on one activity such as the modification of cells receiving intoxicated members of the public diminishes the possibility of expenditure on others which may have equal urgency and greater public appeal Attention to considerations of cost is required by principles stated in general terms see eg Wyong Shire Council v Shirt 1980 146 CLR 40 at 47f emphasis added 86 On the question of marginal utility Kirby J noted that there was no precise evidence of the number of previous incidents comparable to the plaintiff s accident and stated at 307 308 In the absence of such evidence it was open to Newman J to come quite comfortably to the conclusion that what had happened to the appellant was if not unique then extremely rare But if it was rare then the imposition on the State for whom the respondent is liable of a duty to provide continuous surveillance to respond to the risk of such events occurring is not required by the standard of reasonable care Even if precautions which the appellant urged had been adopted it is by no means certain they would have prevented the kind of injury which the appellant suffered It is here that the marginal utility of introducing a procedure for constant surveillance must be weighed against the marginal cost of doing so In a perfect world there would be limitless funds to spend upon the modification of old prison configurations and the provision of an additional roster of police outside cell number 8 in three shifts twenty four hours a day and seven days a week But as I have pointed out to do this necessarily diminishes the funds available to the State to perform other beneficial functions for the community which may have a greater perceived utility In recognition of this fact the common law does not impose in these circumstances an absolute duty to safeguard the prisoner It simply requires the State to do that which is reasonable in the circumstances Having regard to the high costs of the modifications and personnel arrangements necessarily urged by the appellant and the infrequency if not uniqueness of the injuries which he suffered it would not have been reasonable at least by the standards of 1978 for Newman J to have concluded that the modifications urged by the appellant were required by law emphasis added 87 These observations apply to the present case It is obviously not the case that the LTA had insufficient resources to retrofit half height PSDs at aboveground stations including AMK Station The decision to commit resources for that purpose was made in 2008 and 126m was actually expended on that purpose between 2009 and 2012 But there was evidence that competition for the allocation of public resources was clearly a consideration for the LTA in deciding whether and when to retrofit the half height PSDs note 86 88 The standard of care imposed by the law is an objective one Therefore a defendant will be adjudged negligent even if that defendant lacks the financial resources to exercise the care deemed reasonable by the applicable standard But equally a defendant who exercises the care which the applicable standard deems reasonable will not be adjudged negligent simply because he has access to additional resources and is therefore able to take additional precautions To take an example certain cars incorporate safety features designed to minimise injury to pedestrians Typically those safety features make those cars more expensive A motorist who knocks down a pedestrian will have attained the standard of care dictated by the law so long as the configuration of his care keeps a pedestrian reasonably safe in a collision That is so even if that motorist has the resources required to purchase a more expensive car with improved safety features which would have kept the pedestrian even safer Analogous cases 89 I find it relevant to consider a number of analogous cases involving railway accidents In Chan Chung Kuen and MTR Corporation Ltd DCPI 764 2009 Chan Chung Kuen the plaintiff sustained serious injuries when his leg sank into the gap between the train and the platform while he was attempting to board the train He claimed damages from the defendant arguing that the platform gap was too wide to be safe and that there was inadequate warning and supervision to passengers on the platform The court found that the defendant had not breached any duty to the plaintiff It found that the curvature of the railway line made the gap inevitable and that the gap was within international safety limits and had been passed as safe for public use by the Railway Inspector note 87 An argument that PSDs should have been installed was rejected because the plaintiff failed to adduce any evidence to substantiate that the installation of such platform screen doors was reasonably practicable note 88 The court went on at 31 37 to consider the various precautions taken by the defendant These precautions are largely similar to the existing safety features at AMK Station They include the deployment of crowd control staff at the platforms at peak hours flashing lights at all curved platform edges to draw attention to the platform gaps warning signs in various parts of the station and an audio warning reminding passengers to stand behind the yellow line With regards to the complaint of lack of crowd control staff at the material time the court considered CCTV footage revealing that the platform had not been crowded and therefore that the absence of crowd control staff at that time had nothing to do with the occurrence of the accident at 40 42 The court also referred to an English case Stracstone v London Transport Board The Times 21 January 1966 in the Current Law Year Book at para 8317 That case concerned a similar situation where the plaintiff had fallen through the platform gap There was no evidence that the platform was unusually crowded at the time of the accident It was found that the existing safety precautions namely white lines on the platform with the words mind the gap an extension of the platform at a lower level signs which lit up when the train came in and members of the staff shouting mind the gap were sufficient to bring the platform gap to the plaintiff s attention 90 There are of course differences between the present case and Chan Chung Kuen and Stracstone v London Transport Board It is not the plaintiff s case that the warnings at AMK Station were inadequate to bring the potential danger of falling into the tracks to the plaintiff s attention In any event I have found that the plaintiff was injured because she suffered a sudden and unpredictable loss of consciousness and not because she was inadequately warned about the risk of falling onto the tracks However these cases show that commonly adopted safety measures which are entirely passive such as trackside visual markers and audio and visual warnings are meaningful and effective measures for a railway operator to take in discharge of its duty to ensure that a station is reasonably safe One cannot argue that these measures are useless and that a MRT train station is not reasonably safe simply because it lacks a physical barrier to prevent an infinitesimally small risk 91 I find that on an objective evaluation the safety features at AMK Station on 3 April 2011 were sufficient to keep passengers reasonably safe and to keep the risk of passengers falling into the train tracks at a level that was as low as was reasonably practicable The incidence of one unders remained at a constant of between two and six per year despite the steady increase of annual passenger trips from 402 265 250 in 2004 to 587 731 687 in 2012 The plaintiff s argument was that even one one under incident meant that the measures taken by the defendants fell short of what was required to make AMK Station reasonably safe I cannot accept this argument The standard of care does not require the defendants to eliminate all risks by taking all precautions The standard of care requires the defendants only to reduce risk to a reasonable level by taking reasonable precautions Objectively speaking the existing safety features were sufficient to render an accidental one under a minuscule risk I find that the numbers of injuries per year either in their absolute number or as a proportion of the total passenger trips was not at such a level as to invite any inference of inherent defects in design or operation of the MRT stations The defendants acted reasonably in making no substantial changes to the design and operation of the stations as at the date of the plaintiff s injury In particular I find that AMK Station was reasonably safe for the plaintiff s use on 3 April 2011 even without half height PSDs installed 92 More can always be done when it comes to safety That is particularly so when safety is analysed with the perfect vision of hindsight However the law does not require the defendant to take every step and to expend every conceivable resource to eliminate every risk in the name of safety Indeed it might be a gross misallocation of resources to channel all one has to completely eliminate a risk with a very low likelihood of eventuating at the expense of addressing other risks Common practice 93 My view is fortified by evidence that platform edge safety of the Singapore MRT system even with only the existing safety features and without PSDs was comparable with and even exceeded international standards and common practice Conformity with common practice cannot of course be a complete answer to an allegation of breach of duty However conformity with common practice is prima facie evidence that the standard of care has been met Charlesworth and Percy on Negligence states at para 7 38 that A court s assessment of the standard of care appropriate in given circumstances will inevitably reflect the evidence received in the case Where the evidence suggests that for a significant period of time a practice has been followed without untoward result it will be regarded as a strong indication that to follow that practice is consistent with the exercise of reasonable care It will not be conclusive but generally a defendant charged with negligence can clear himself if he shows that he has acted in accord with general and approved practice Vancouver General Hospital v McDaniel 1934 152 LT 56 at 57 94 In B A Child the court was alive to the fact that the public perception of the need for safety in premises had increased over the 15 years since the occurrence of an identical accident and given the seriousness of the resulting injury at 85 see 69 above Against that however the court weighed the consideration that the insulation or lagging of central heating was not industry practice at 97 In addition it is proper to take into account the fact that no British Standard or Code of Practice requires that pipes be protected nor does any British Standard or Code of Practice make that recommendation where the pipework forms part of the useful heating surface in the room The evidence before me establishes that consideration since the case of Ryan was decided to safety aspects as well as to the efficiency of heating systems has been given and yet no change been made Again this is not a decisive factor as there may well be negligence even where no British Standard or Code of Practice has been breached but it remains a factor to be taken into account in the circumstances Having considered the matter as a whole I conclude that the defendants have acted reasonably in not lagging or protecting the pipework I find that they are not in breach of their duty of care to the claimant in the circumstances of this case 95 In the present case the evidence is that the Singapore MRT system has consistently been rated amongst the safest in the world note 89 Mr O Grady stated in his report that the warning systems at AMK Station met or exceeded international norms for safety in most transport systems worldwide and that it is only the newest mass transit stations being constructed worldwide which are now incorporating variations on the same safety features that MRT stations in Singapore have had for many years note 90 The design of AMK Station and in particular the treatment of the platform edge flooring conforms to various international standards such as the American National Standards Institute ANSI and the Train and Station Services for Disabled Passengers A Code of Practice UK Code of Practice from the Office of Railway Regulations adopted in Europe note 91 In this regard it is clear to me that AMK Station as at April 2011 was not only reasonably safe in itself it was also reasonably safe when measured against the standards of safety practised in the vast majority of global MRT systems 96 The plaintiff however argued that the defendants were negligent in not implementing certain safety measures which have been adopted in some other jurisdictions or which would conceivably have averted the plaintiff s injuries even if there has been low uptake in other jurisdictions These measures are listed as follows a Installation of half height PSDs b erection of interim barriers pending completion of the installation of the half height PSDs c a larger distance between the yellow line and the platform edge d slower speed of trains arriving at AMK Station and e more service staff to conduct crowd control at the platform 97 I now proceed to evaluate each of these measures The installation of half height PSDs 98 The evidence is that as at September 2011 only 44 out of the world s 184 rail transit systems had PSDs installed in some portion of their network note 92 September 2011 was the closest date to April 2011 for which information was available If anything the number of systems with PSDs would conceivably have been lower in April 2011 than in September 2011 PSDs include both full height PSDs and half height PSDs Many of the stations with PSDs are underground stations Singapore was in effect the first MRT system to install PSDs in its inaugural stations in 1987 These were the full height PSDs installed in underground stations to which I have already referred 99 Further the evidence showed that the vast majority of the 44 systems which have incorporated PSDs

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  • Chandran a/l Subbiah v Dockers Marine Pte Ltd[2010] 1 SLR 786; [2009] SGCA 58
    of the Birmingham Waterworks 1856 11 Ex 781 per Alderson B In the context of employer s liability this means that the law will measure the behaviour of any particular employer against the scale of what a reasonable employer in that specific industry free from over cautiousness as well as over confidence would have observed The broad constituent elements of this composite standard of care expected of employers may be explained under various broad headings such as a duty to provide a safe system of work adequate equipment and adequately skilled workers For instance Lord Maugham opined in Wilsons 14 supra at 86 that there was a duty on the employer to take reasonable care and to use reasonable skill first to provide and maintain proper machinery plant appliances and works secondly to select properly skilled persons to manage and superintend the business and thirdly to provide a proper system of working This three fold categorisation of employer s duties has been accepted by this Court in Parno v SC Marine Pte Ltd 1999 3 SLR R 377 Parno at 45 It can be said that these broad categories are useful guides in fleshing out the standard of care ordinarily expected from employers in most situations 22 Having said that however we should also underscore our concern that attempts to categorise the various standards of care exhaustively may not always be helpful Such categorisation may result in the commission of at least two separate but related errors The first error is made when attempts are made to classify each case into one of the categories even when it does not fit The second is when claims which fall outside of the established categories are mistakenly considered as ipso facto irrecoverable Both errors arise out of the same incorrect assumption that the categories listed in Wilsons are exhaustive They are not The learned authors of Munkman have perceptively observed at para 4 48 It must be stressed that the duty is not confined to these matters ie the three fold categorisation An employer may for instance be under a duty to warn an employee of the risks of employment something which cannot be readily placed in any of the above categories nor can the duty to provide medical care Kasapis v Laimos Bros 1959 2 Lloyd s Rep 378 Far from being all encompassing or set in stone the categorisation of employers duties has in fact been generally acknowledged to be incomplete For instance to the classical three fold categorisation enunciated by Lord Maugham a fourth has been recognised as being historically justified a duty to provide safe premises and access to it see Cole v De Trafford No 2 1918 2 KB 523 For example Clerk Lindsell on Torts Sweet Maxwell 19th Ed 2006 Clerk Lindsell at para 13 12 stated with regard to the case of Jenner v Allen West Co Ltd 1959 1 WLR 554 that i f it is a roof scaffold or tunnel the standard of safety to be applied is that of a reasonably prudent employer who provides a roof scaffold or tunnel at which his men are to work The failure to provide crawling boards for a risky operation on a roof and reliance solely on the experience of the workman was held to constitute negligence Further sub branches have also since evolved For instance under the umbrella of the duty to provide a safe system of work this court decided in Parno at 48 that t his organisation or system includes such matters as coordination of different departments and activities the lay out of plant and appliances for special tasks the method of using particular machines or carrying out particular processes the instruction of apprentices and inexperienced workers and the general conditions of work see John Munkman Employer s Liability at Common Law 1985 at pp 131 132 A duty to provide a safe system of work requires the employer to take steps to first devise such a system and then to ensure its proper implementation Conceptually the four main categories of the golden rule ie the provision of adequate equipment adequately skilled workers a safe system of work and a safe place of work have usually been kept separate and distinct However as we will demonstrate at 26 below these categories can overlap 23 These developments serve to illustrate that the categories of responsibility are not closed Lord Keith appositely observed in Cavanagh v Ulster Weaving Co Ltd 1960 AC 145 at 165 that t he ruling principle is that an employer is bound to take reasonable care for the safety of his workmen and all other rules and formulas must be taken subject to this principle While this golden rule of care imposed on employers is in itself enduring what is nevertheless required for its proper discharge may differ enormously in different situations Relevant considerations in assessing the standard of care expected of an employer include inter alia the magnitude of the risk of harm the likelihood of an accident happening the gravity or seriousness of the consequences of the risk eventuating and the feasibility and practicality of taking adequate precautions Hence any standard to which an employer has been held to in one case must be treated as merely indicative rather than conclusive of the standard expected in another situation 24 This is not to say that the classical categories of standards of care are not useful Such categories remain helpful in providing a rational legal architecture to understand the notion of employer s liability and as indicative broad guidelines to employers about their responsibilities Our point however is that the function of such categories should not be overstated and mechanically applied Such categories despite often being presented as duties are not distinct duties of care owed by employers Employers essentially only owe a single overarching duty of care to their employees and that is encapsulated by the golden rule 25 We stress also that the standard of care while usually articulated in high flown language is no more than a commonsense and practical standard framed by the boundaries of reasonableness that require all employers to give appropriate consideration to the safety of their workers in any given work environment An employer is we stress not to be regarded as an insurer of an employee s safety under any circumstances The duty to take care is certainly not absolute in nature An employer is not required to bear the consequences of all risks present at the workplace but merely such risks as would have been reasonable for the employer to have anticipated and addressed Employers who consistently adhere to a culture of work safety are unlikely to find themselves on the wrong side of the safety line drawn by the law With this general overview as the backdrop we now turn to examine the factual matrix and the applicable legal principles The factual matrix 26 In the present case we find that the respondent had in the circumstances failed to meet two aspects of its duty to take reasonable care for the safety of the appellant In our view the respondent should have performed the following but did not do so a carry out a risk assessment exercise including inspecting the access to the hatch in question and the defective ladder for signs of danger to its workers prior to the commencement of work and b take reasonable measures to minimise the risk of its workers falling from heights by providing safety equipment such as safety belts and safety harnesses As we indicated earlier the Judge had categorised the respondent s obligations in the present case as one falling under the respondent s duty to provide a safe place of work simply because the present case involved a defect in the physical premises of the workplace She expressed that the means of entry to Hatch 5 cannot constitute the system of work We do not agree In our view if the physical premises are utilised as an integral part of how work is carried as oppose to merely being the location in which it was carried out any defect therein may properly result in the employer breaching its duty to provide a safe system of work It seems to us that such was the case in the present instance as the appellant had used the defective ladder not merely as a means of entry into Hatch 5 but also as equipment to manoeuvre around the cargo containers In essence it can be said the ladder acted as a substitute for a work harness or a winch In that sense it can be said that a failure to check for risks in such a work environment could result in the employer breaching both its duty to provide a safe system of work as well as a safe place of work 27 However given our earlier explanation that such categories are merely guidelines the precise categorisation of the respondent s duty in this case is not crucial In the final analysis the most crucial question to be answered is what precautions the respondent could reasonably have been expected to take in this particular case We will address each of the requirements stated in 26 in turn Failure to perform risk assessment 28 Counsel for the appellant Mr Perumal Athitham contended that it was reasonable to expect the respondent to ensure that the premises in which it deployed its workers were safe by making a preliminary inspection before work commenced He relied heavily on the case of Marney 9 supra That however is actually a case involving occupier s liability rather than employer s liability where the charterer and not the master stevedore employer was found liable It is also pertinent that the case was decided in 1899 well before the law of negligence had been securely established in England and Scotland However as the broad facts of that case bear some resemblance to the present matter we ought to explain more fully why we do not think it takes the appellant s case much further In that case the defendant chartered a vessel pursuant to a charterparty which contained a representation that the vessel was in every way fitted for service and that the vessel should be so maintained by the vessel owners At the same time the defendant also contracted with a master stevedore to load cargo onto the vessel when the vessel was delivered Within two hours of the delivery of the vessel the plaintiff a stevedore hired by the master stevedore to load cargo onto the vessel was directed to go down into the main hold of the vessel In order to do so it was necessary to descend a fixed iron ladder When the plaintiff put his foot on the top rung of this ladder the rung came adrift causing the plaintiff to fall into the hold and sustain serious injuries Bigham J found the defendant liable as occupiers of the vessel for the injuries sustained by the plaintiff and held at 993 as follows Ought he the defendant then to have known of the condition of the ladder Here comes in my doubt I am far from saying and thinking that a man in the position of the defendant is bound before he allows the work of loading a vessel to begin to have the vessel surveyed from stem to stern for the purpose of ascertaining that every little appliance that may come into use is in perfect order Business would be impossible if such a duty were cast upon him and it would be beyond the scope of reasonable care But I cannot help thinking that when a vessel comes into a port after a voyage though it is only a coasting voyage and though the vessel is in ballast some slight attention ought to be devoted to the condition of the tackle and appliances which the stevedore s labourers are to use in their work in loading that vessel What the attention ought to be must depend on the circumstances of each particular case In this case I think the defendant ought to have made some examination of the ladders into the holds The slightest examination would have shewn sic him that this ladder was in such a condition as really to make it a trap and taking this view I hold that he was guilty of a breach of the duty which I think the law imposed on him emphasis added 29 Clearly Marney stands for the proposition that occupiers are expected to ensure that their premises are safe by ensuring an inspection of the relevant areas of operation before allowing workers to commence work on them Like the Judge we do not think it lends direct support to the appellant s contention that a preliminary inspection by a stevedore employer on a ship is necessary before work commences It does nevertheless offer some tangential support for the view that if a reasonable opportunity for detecting a defect exists a failure to take advantage of this may result in liability for the employer for an unusual danger which he knows or ought to know at 990 Whether the stevedore employer had independent duties and or liabilities was not considered in Marney That said it is pertinent to note that Bigham J did not consider that a discrete head of liability governed by its own special rules and practices applied to stevedores but instead relied on general principles as summarised in Pollock on Torts 5th Ed to ultimately find liability 30 Another later authority appears to lend firmer support to the appellant s case that employers are obliged to perform a preliminary risk assessment to discharge their obligations under the golden rule In Christmas v General Cleaning Contractors Ld 1952 1 KB 141 Christmas the English Court of Appeal held that employers are obligated to take reasonable measures to inspect work premises for safety hazards even when those premises belong to a third party That case involved the fall of a worker hired to clean the windows of certain premises belonging to a third party It was argued on behalf of the employer that employers who send their employees to work on third party premises have no responsibility for the safety of those premises Lord Denning roundly rejected that notion Instead he held at 148 149 as follows I cannot agree with that proposition Until recently many people thought that an occupier was bound to use reasonable care to see that his premises were safe for workmen he invited on to them but that is no longer true If this is so then I think it must follow that it is for the employer who sends his men to the premises to take reasonable care to see that the premises are safe for the men or else take proper steps to protect the men from the dangers to which he sends them emphasis added On appeal this decision was affirmed by the House of Lords General Cleaning Contracts Ld v Christmas 1953 AC 180 31 We find the proposition that employers should undertake a preliminary risk assessment before allowing its employees to commence work reasonable and indeed self evident in principle Simply put this means that all employers should ordinarily familiarise themselves with the work environment in which their employees will have to function and ascertain if there are any likely risks that ought to give rise to safety concerns Since the golden rule calls for an employer to take reasonable care to prevent harm from befalling its workers it is a logical and reasonable extension to expect an employer to take steps to ascertain the existence of such dangers prior to the commencement of work The fact that the employees may be working in unfamiliar territory makes such a proposition even more compelling Without such a preliminary risk assessment it would be difficult if not impossible for employers to take positive steps to remedy or address any hazard that may be present at the workplace a task that it is obligated to perform to satisfy the golden rule Ordinarily such an assessment should include a physical inspection of the work premises and equipment to be used An inspection is usually the quickest and most cost effective way of accurately ascertaining the presence of potential danger If conditions do not permit a satisfactory physical inspection the employer should at least satisfy himself as to the working conditions which his employees will engage in by making appropriate inquiries and then assessing what the potential hazards might be For example if the workers are to work from heights the employer is required to consider what safety precautions if any are required see below 58 59 and to test the equipment to be used by its employees 32 In our view the duty to undertake a preliminary risk assessment is ordinarily part and parcel of an employer s overriding duty to take reasonable care for the safety of its workers All employers involved in work that might give rise to safety concerns are generally expected to undertake a pre work assessment of the risks present at the locations where its employees perform their work 33 This does not mean that the duty to assess risks is absolute It is not inconceivable that there may be circumstances where compliance with the golden rule will not require the performance of such a preliminary risk assessment There may of course also be instances where it would be unreasonable to undertake such an exercise The case of Cook v Square D Ltd 1992 ICR 262 Cook is a good illustration of such circumstances That case involved the employment of the plaintiff an electronics engineer by the defendant a company based in the United Kingdom In the course of his employment the plaintiff was dispatched to complete the commissioning of a computer control system in Saudi Arabia Farquharson LJ pointedly described the work the plaintiff performed there as largely sedentary However on one particular occasion when the plaintiff was instructing others on the use of the system he slipped as a result of a raised tile that had been left unguarded and injured his knee In finding for the defendant Farquharson LJ had no doubts that an employer is to take all reasonable steps to ensure the safety of his employees in the course of their employment However he felt that the defendant had sufficiently satisfied this obligation by ensuring that the site occupier was a reliable company who was aware of its responsibility for the safety of workers on site In his view the sedentary nature of the plaintiff s job and the fact that the work premises were situated far away in Saudi Arabia made it unrealistic to expect the defendant to perform an inspection of the premises While the circumstances in Cook may have made it unreasonable for the plaintiff s employer to inspect the plaintiff s work premises cases such as Cook do not diminish the general applicability of the expectation that employers are to perform a preliminary risk assessment exercise before their workers commence their work An analysis of the key decisions on the responsibilities of employers of stevedores 34 The Judge was particularly impressed by the standing of Cremin 9 supra a decision of the House of Lords made in 1941 on appeal from the Scottish courts and Durie 9 supra a decision of the Scottish Divisional Court made in 1958 Mr Eu in seeking to uphold the Judge s determination that there was no duty to conduct a preliminary risk assessment maintained that it was impractical to impose such an obligation where the work was to be performed on third party premises In addition to Cremin and Durie the respondent also relied on the cases of Hodgson v British Arc Welding Company Limited and B N Green Silley Weir Limited 1946 1 KB 302 Hodgson Mace v R H Green and Silley Weir Ltd 1959 2 QB 14 Mace Gibson v Skibs A S Marina and Orkla Grobe A B and Smith Coggins Ltd 1966 2 All ER 476 Gibson and Shepherd v Pearson Engineering Services Dundee Ltd 1980 SLT 197 Shepherd It is to be noted that of these cases only Cremin Durie and Gibson involved stevedores although all of the cases had to do with accidents taking place on ships While some of these cases are factually distinguishable it cannot be denied that the tenor of these cases appears to suggest that in the absence of special circumstances there is no general duty on an employer which may be a stevedoring firm to inspect a vessel belonging to a third party on which its employees are to work In this regard it suffices to quote Lord Walker in Durie at 50 as follows In the recent edition of Glegg on Reparation the law is stated thus at p 385 Where an employer has occasion to use the premises or plant of another there being no transfer or lease of the property to the employer the general rule is that there is no obligation on the employer to inspect the property to see that it is in a safe condition and therefore no liability unless he has actual knowledge that the property is unsafe That statement of the law in so far as it relates to stevedores engaged in discharging cargo from a ship belonging to third parties is I think amply borne out by the authorities which were cited Stevedores have no concern to inspect the things forming part of the structure or fittings or fastenings of the ship which are in the vicinity of the place where they have to work Accordingly I think that the defenders have made out their contention that they were not bound to inspect the vicinity of the hatchway in order to ascertain whether the fastenings fittings and structure of the ship were safe or not emphasis added In that case a dock labourer working on a ship sustained injuries when a section of the ship s handrail knocked him down The section of the handrail in question had earlier been removed and was then propped against the fixed handrail without being lashed to it The labourer sued his employers a firm of stevedores for damages Lord Walker dismissed the labourer s action at first instance as disclosing no cause of action in law An appellate court subsequently affirmed the above proposition though the appeal was allowed because the plaintiff had by then amended the claim to allege that the foreman had actual knowledge of the hazard in question At first blush the decision appears to directly support the Judge s view that there is no general duty on stevedores to inspect a vessel prior to commencing work We have found it interesting that Lord Walker had in fact actually taken a more nuanced approach In arriving at his determination he had narrowly observed that s tevedores have no concern to inspect things forming part of the structure which are in the vicinity of the place they have to work emphasis added In short all he was really stating was that stevedores need not inspect the vicinity of the area of work This is quite different from unequivocally saying that they need not inspect the actual equipment or appliances they will be working with or the actual area of operations 35 Having carefully considered Cremin Durie as well as all the other authorities cited by Mr Eu we do not think that the Judge was correct in holding that those involved in offering stevedoring services as a discrete industry have no obligations to conduct a preliminary risk assessment through inspections of the area of work The frequently cited reasons militating against such an obligation to inspect a vessel belonging to a third party may be summarised as follows a it is not part of the regular practice of stevedoring firms to inspect vessels see Cremin per Viscount Simon LC and Lord Thankerton b inspection of a vessel is a highly technical matter which stevedoring firms lacking specialised knowledge are not capable of undertaking see Durie per Lord Justice Clerk and Hodgson per Hilbery J c given that its employees are only on board the vessel for a limited purpose and duration it is not unreasonable for stevedoring firms to rely on the diligence of reputable shipowners see Mace per Lord Parker CJ and Cremin per Lord Thankerton and d a stevedoring firm generally has no right to interfere with the structure temporary or permanent of the vessel see Cremin per Lord Thankerton We have not referred to the cases of Shepherd and Gibson in a to d This is because no reasons were provided in Shepherd for the determination that there was no general duty of inspection on the part of stevedoring firms other than the fact that it has already been authoritatively decided see Shepherd at 201 The decision in Gibson was made on the basis that the stevedoring firm had met the standard of reasonable care and not that there was no duty on the stevedoring firm to make an inspection see Gibson at 479 and consideration of that decision will therefore not be instructive 36 As to 35 a where industry practice is concerned it must first be pointed out that no evidence of any corresponding local practice was adduced by either party In any case we are of the view that the existence of such a practice while relevant to ascertaining the standard of care is not decisive see Halsbury s Laws of Singapore vol 8 LexisNexis 2004 Reissue at para 240 274 which correctly states What is habitually done in the same or similar circumstances usually furnishes a test of reasonable care but a person cannot excuse an obvious failure to make some inquiry or take some precaution merely by showing that his failure to do so is in accordance with the established practice in a particular business In like manner Munkman 16 supra unhesitatingly observes at para 2 98 General practice has always been taken into account in determining the standard of care but as noted above paras 2 88 and 2 103 it is not conclusive because no one can claim to be excused for want of care because others are as careless as himself per Cockburn CJ in Blenkiron v Great Central Gas Consumers Co 1860 2 F F 437 In our view even if the local practice of stevedoring firms does not include an inspection of the vessels on which its employees would operate such a practice cannot be accepted as establishing the appropriate legal standard of duty of care for this industry in Singapore It will readily be appreciated that the absence of even a basic inspection might unreasonably jeopardise the safety of stevedores Given the potential injuries to employees of stevedoring companies in working from heights without adequate precautions taken for their safety we are of the view that such an industry practice if it exists should not be countenanced by the law 37 The contention that the inspection of vessel is a highly technical matter see 35 b is too broad a proposition to apply The real issue must be the kind of inspection required in each case It is true that some inspections might require real technical expertise that a stevedore might not ordinarily have However can it then be stated as a general rule that no inspection is required at all merely because in some assignments technical expertise would be required to conduct such an inspection In so far as the golden rule is concerned the duty to inspect only requires an employer to look out for ordinary safety hazards that may endanger the health and safety of its employees There is certainly no requirement that an employer make an extensive technical inspection of the immediate work premises such as the type required to certify that a vessel is seaworthy Indeed Bigham J memorably pointed out in Marney 9 supra that there is no need to have the vessel surveyed from stem to stern for the purpose of ascertaining that every little appliance that may come into use is in perfect order see 28 above Such a detailed inspection goes beyond what is necessary to satisfy the requirements of the golden rule As Bigham J went on to astutely point out b usiness would be impossible if such duty were cast upon him and it would go beyond the scope of reasonable care On the other hand an inspection of the immediate work areas and operational equipment for ordinary safety hazards is well within the capability of any employer including a stevedoring company 38 The other argument frequently made to deny the existence of a pre work commencement duty to inspect is premised on the fact that employees are often on third party premises to perform a specific task such as unloading cargo and for a limited period see 35 c It is said that to impose a duty to inspect the entire workplace in such circumstances would be unreasonable and overly onerous We agree that for the respondent in the present case to inspect the entire vessel would be both impractical and unnecessary This is because the respondent s workers were only employed to perform their duties in a specific area of the vessel Hatches 2 and 5 and portions of the deck and only for a short duration Nevertheless costs considerations and convenience cannot invariably trump issues of worker safety The appropriate balance between safety of employees and business returns is arrived at in cases where the employees have to work on third party premise for a limited period of time and for an exclusive purpose by requiring the employer to inspect the actual area in which its employees will operate as well as equipment that would be used Hence in the instant case the respondent should have inspected Hatches 2 and 5 and the parts of the vessel deck in which its employee worked as well as physically inspected and tested the ladders It however did not do this 39 A further reason frequently given for not imposing a general duty of inspection is that the employer has no right to interfere with the structure of the place of work or more particularly for the purposes of this matter a vessel see 35 d That may be so but this reason is not relevant in the present case If the respondent here had inspected the ladder and found it unsafe then requesting or requiring the ship owner to make the ladder safe is not interfering with the structure of the place of work because the ship owner itself would then have a duty and interest to make the structure safe by repairing the defective ladder or providing safety equipment such as safety hats gloves or safety harnesses if the situation requires this For a court to hold that an employer need not inspect the work premises simply because it has no legal right without permission from the premise owners to make changes to the workplace may be to license an abdication of his responsibility as an employer The golden rule requires that consideration be given as to whether the employees are exposed to work related risks and this obligation can ordinarily only be satisfied if an employer makes a prior inspection of the work site to assess the risk quotient 40 We find therefore that the underlying basis on which the broad proposition that employers need not inspect third party premises for potential hazards has been premised to be in the main indefensible and certainly unpersuasive This proposition is certainly not in keeping with contemporary notions of employee safety We are similarly not impressed by the viewpoint that stevedore employers as a class have minimal obligations to secure the safety of their employees It appears to us that the teeth of Cremin 9 supra have over time been drawn in different ways see for example Tsang Hing Cheung v Chan Po Ling Stella 2002 HKCU 1356 There the Hong Kong High Court pointed out at 16 quoting Winfield on Torts 8th Ed 1967 that Cremin was an invitor and invitee case of limited ambit and as regards that ambit it was soon after being brought into the full light supplanted by section 2 4 b of the Occupiers Liability Act 1957 Much earlier in the course of a wide ranging powerful critique of Lord Wright s reasoning in the House of Lords decision Davie v New Merton Board Mills Ltd 1959 AC 604 at 642 646 Lord Reid penetratingly dismantled the standing of Cremin cuttingly calling it a case with a curious history at 643 In relation to the issue of employer liability apropos stevedores he drily noted t he case was decided in favour of the stevedore because of the limited nature of a master s duty to see to the safety of a servant who is working on another person s premises at 644 emphasis added Notably he did not consider Cremin as a decision that was peculiar to the stevedoring industry but rather as evocative of the common law as it stood in 1941 in relation to an employer s duty to its employees if they worked on another s premises Munkman on Employer s Liability Butterworths 13th Ed 2001 when analysing the duty of an employer in relation to operating from third party premises refers inter alia to Cremin and a few other like cases and deprecatorily notes at para 5 56 To the extent they decide that the employer has no duty to safeguard workers against dangers arising from the state of the premises of third parties these cases are inconsistent with the primary nature of the duty of the employer see eg Smith v Austin at 117 per Lord Denning emphasis added 41 Further it appears to us that in adverting to the duties of stevedores in 1941 the House of Lords in Cremin appeared to have unquestioningly accepted that an earlier Scottish decision William M Lachlan v The Steamship Peveril Company Limited 1896 23 R 753 M Lachlan continued to correctly state the law on stevedoring responsibilities without reference to developments in other work sectors to which their Lordships attention was not drawn Here we must pause to observe that even in M Lachlan a striking out case Lord Young who delivered the most detailed judgment noted at 758 Now I am not aware of any authority for the proposition that a stevedore is not responsible for an accident to one of his men from a defect which he should have seen to and would have discovered had he made proper supervision I think there is authority to the effect that a very slight supervision will be sufficient on the part of the stevedore to exempt him from responsibility and that he may assume that this that and the other thing are all right in a ship without making a special examination But I cannot assent to the proposition that there would be no liability if things are wrong which by proper supervision without requiring anything out of the way on his part he would have discovered so as to prevent his man going into that danger emphasis added So it is evident that even then in 1896 when the law on employment responsibilities was still in its infancy there was an acknowledgment that stevedores had some obligations to discover defects On the other hand the House of Lords in Cremin appeared content to rather perfunctorily accept that it was not proved to the Scottish courts that it was the practice or course of duty of stevedoring firms to make such inspection at 107 Perhaps this might have been because the real focus of that court s attention was on the liability of the

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  • Jurong Primewide Pte Ltd v Moh Seng Cranes Pte Ltd and others
    documents to factor in additional lifting crew which MA had engaged in carrying out works Notwithstanding the fact that it was unclear whether Lifting Supervisor 1 no did actually refer to Kolanjiapan Sunder on 11 July 2010 the variation document was also silent on whether the additional lifting crew were for the purposes of carrying out works within MA s own scope of work or some other seconded work 31 We were therefore satisfied that the Lifting Supervisor was not the representative of JPW at the material time but rather MA s representative 2 JPW s Safety Officer s alleged instructions 32 JPW and the respondents also disputed whether JPW s Safety Officer had given instructions for the crane to be removed from the danger area In his decision the Judge rejected JPW s Safety Officer s evidence that he had done so as it was puzzling that JPW s Safety Officer would immediately walk away from the scene without ensuring that his instructions were promptly implemented and further JPW s Safety Officer was accompanied by an assistant who similarly immediately walked away and was not instructed to remain to ensure removal of the crane GD at 32 33 We had reservations on the correctness of the Judge s inference that JPW s Safety Officer ought to have stayed behind to see his instructions carried out if he did indeed give those instructions which JPW argued was based on puzzling logic note 9 However as we were satisfied that JPW s Safety Officer did not give those instructions we need say no more about that particular finding 34 JPW s Safety Officer affirmed in his affidavit that during his discussion with the Lifting Supervisor the Lifting Supervisor had told him that the land had already been backfilled JPW s Safety Officer then replied that he did not know about any filling up and that to him it was still a washing bay and that the Crane cannot park there note 10 Therefore he instructed the Lifting Supervisor to shift the Crane and not to park there any further note 11 Subsequently when cross examined JPW s Safety Officer modified his evidence and claimed that he not only gave the instruction for the crane to be moved away to the Lifting Supervisor but also to Lian himself note 12 This point was not in JPW s pleaded case and it was the first occasion that JPW s Safety Officer had brought this up Contrary to JPW s Safety Officer s and JPW s own Safety Coordinator evidence the other two individuals at the scene Lian and the Lifting Supervisor both disagreed that JPW s Safety Officer had given the instructions for the crane to be moved In fact it was only JPW s Safety Officer who asserted that the crane had previously been parked at a different location identified as CL1 on the sitemap and relatively far away from the manhole whereas both Lian and the Lifting Supervisor testified that the crane had only been parked at CL2 which was where the manhole was located at In addition JPW s Safety Officer was unable to explain why the permit to work for the lifting operation which would have authorised CL2 as the place for the crane to work note 13 was missing 35 On the whole we found JPW s Safety Officer s evidence on this point to be unsatisfactory and found that he did not give the instructions for the crane to be moved away Relevance of the WSHA 1 Duty of care 36 The parties operational activities were all embraced by the regulatory framework installed by the WSHA and its relevant regulations collectively the WSH Regime This had a significant bearing on our analysis of the parties conduct their legal responsibilities and the imputation of negligence 37 First it is trite that there is no common law tort of careless performance of a statutory duty and the mere presence of a statutory duty does not automatically give rise to a concomitant common law duty of care Animal Concerns Research Education Society v Tan Boon Kwee 2011 2 SLR 146 Animal Concerns at 21 23 Tan Juay Pah v Kimly Construction Pte Ltd and others 2012 2 SLR 549 Tan Juay Pah at 53 Rather the presence of statutory rules would fall within the rubric of the existing analysis for negligence The classic framework for establishing a duty of care was clearly stated in Spandeck Engineering S Pte Ltd v Defence Science Technology Agency 2007 4 SLR R 100 Spandeck There is first a threshold requirement of factual foreseeability before a two stage test is applied Spandeck at 115 The first stage requires sufficient legal proximity which is determined by the closeness of the parties relationship supported by the defendant s voluntary assumption of responsibility and the claimant s actual reliance It is a multi faceted concept which is a measure of the parties relationship in terms of nearness or closeness and can also reflect an assumption of responsibility by one party to another If established there would be a prima facie duty of care The second stage involves policy considerations to decide if the prima facie duty should be negated such as the presence of a contractual matrix within which parties have defined their rights and liabilities or the relative bargaining positions of the parties Spandeck at 83 38 The effect of the WSH Regime on the issue of whether there exists a duty of care in negligence was discussed at length in Tan Juay Pah a case which also involved the collapse of a tower crane which resulted in the deaths of three workers However a significant difference was that the alleged negligence in Tan Juay Pah was that of the authorised examiner whose duty was prescribed under the WSH Regime and not the crane operator contractor subcontractor and crane supplier as was the case here The main contractor in Tan Juay Pah had sued the subcontractor which in turn brought in the authorised examiner as a third party claiming an indemnity against the subcontractor in the event that the latter was found liable to the main contractor At the trial the main contractor succeeded in its claim against the subcontractor which in turn succeeded in its claim of indemnity against the authorised examiner The authorised examiner appealed against the High Court s decision On appeal to this Court it was established that the subcontractor needed to show that the authorised examiner was liable to the main contractor directly for the same damage that the subcontractor had caused by the crane collapse Hence the crucial question was whether the authorised examiner owed a duty of care at common law to the main contractor even though the authorised examiner was not engaged by the main contractor but by the subcontractor renting out the tower crane 39 In Tan Juay Pah this Court made general observations about the WSH Regime and the imposition of a common law duty of care under it First a party seeking to establish a private right of action for a breach of a statutory duty has to show that Parliament intended for the members protected by that statutory duty to have such a right of action Secondly the mere existence of a statutory remedy or sanction for a breach of the duty is not decisive on matter of whether there is a private right of action Thirdly each statute has to be considered contextually formulas are not helpful Fourthly the underlying statutory scheme and parliamentary intention go to the second limb of Spandeck not the first Crucially this Court in Tan Juay Pah identified the main underlying objective of the WSH Regime as follows at 68 73 and 89 68 T he objective of the WSH Bill which was later enacted as the Workplace Safety and Health Act 2006 Act 7 of 2006 was to protect workers and members of the public present at a workplace from injury by deterring risk taking behaviour through the imposition of liability for such behaviour on the part of persons who create and have control over safety risks at workplaces To achieve this objective a more direct liability regime see Singapore Parliamentary Debates vol 80 at col 2209 was put in place under Pt IV of the WSH Bill to hold various groups of persons accountable for workers safety and health according to their different capacities We observe that while an AE does not fall under any of the categories of persons enumerated in Pt IV of the WSH Bill a main contractor and a subcontractor may fall under one or more of those categories eg as an employer under cl 12 of the WSH Bill or as a manufacturer and supplier of machinery under cl 16 The structure of the WSH Bill suggests that the liability of an AE under the WSH Regime is secondary to that of the persons specifically mentioned in Pt IV of the WSH Bill inter alia contractors and subcontractors 73 It is clear in our view that while the office of the AE is an integral part of the WSH Regime s overall statutory purpose of ensuring workplace safety see 56 61 above the statutory objective is not to protect contractors and or subcontractors as they have primary responsibility for all aspects of safety at a workplace Indeed Dr Ng s statements in Parliament during the second reading of the WSH Bill see above at 66 suggest that the objective of the WSH Regime is to guard against safety lapses at workplaces by contractors and those to whom they have delegated operational control of their work 89 W hat we consider to be the WSHA s primary objective namely ensuring the safety of those present at workplaces particularly workers and attributing responsibility for workplace safety to those having operational control of workplaces T he WSHA is intended to protect persons present at workplaces from safety lapses by contractors and their subcontractors original emphasis in italics emphasis added in bold 40 Moreover the prevailing intention behind the WSHA was precisely to create a system of accountability by defining the responsibilities of various persons at workplaces as explained by the then Minister of Manpower Dr Ng Eng Hen during the second reading of the Workplace Safety and Health Bill 2005 Bill 36 of 2005 Singapore Parliamentary Debates Official Report 17 January 2006 vol 80 at cols 2208 2210 Third this Bill will better define persons who are accountable their responsibilities and institute penalties which reflect the true economic and social cost of risks and accidents Penalties should be sufficient to deter risk taking behaviour and ensure that companies are proactive in preventing incidents Appropriately companies and persons that show poor safety management should be penalised even if no accident has occurred This Bill will put into place a new and more effective framework to reduce accidents at the workplace to bring about a quantum improvement in OSH standards and to achieve our intermediate goal of halving the present occupational fatality rate by 2015 emphasis added 41 From the foregoing it is clear that contractors and subcontractors as JPW and MA were respectively are precisely the entities which the WSHA seeks to increase direct liability on for workplace safety They have primary responsibility in all areas of safety given their operational control of workplaces In fact the main purpose of the WSHA is arguably to strengthen the accountability of and impose responsibilities on parties such as the main contractor and subcontractors so as to ensure a safer working environment at construction sites These statutory responsibilities also complement the very aims of the common law tort of negligence which is concerned with ensuring that negligent conduct within legal limits would attract corresponding liability The law of tort serves two functions here it is an engine of compensation as well as a financial deterrent The law governing the establishment of a duty of care in turn helps to limit claims in negligence to only parties with sufficient proximity and foreseeability so that the net of liability is not cast too widely Plainly contractors and subcontractors are parties whose negligence on construction sites has the most potential to result in fatal or at least costly consequences given their well placed abilities to foresee and be aware of the various possible mishaps that others without operational responsibilities and control may not be able to identify In fact it would be very hard to think of situations where sufficient proximity to give rise to a common law duty of care will not be found to exist due to the control contractors and subcontractors have over the worksite and the on going activities on it 42 The WSHA is clearly focussed on strengthening the safety management of worksites as its primary aim By placing heavy responsibilities on contractors and subcontractors the scheme of the WSHA intends that the burden of making worksites as free from hazards as possible and installing necessary systems and safeguards would fall on these parties 2 Standard of care 43 The standard of care required in relation to a duty of care is usually the general objective standard of a reasonable person using ordinary care and skill Blyth v The Company of Proprietors of the Birmingham Waterworks 1856 11 Exch 781 However factors such as industry standards and normal practice can be taken into account at this stage Cases such as The Emma Maersk 2006 SGHC 180 at 51 and Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd 2006 3 SLR R 116 at 17 are instances where the courts accepted what was shown to be normal practice to be the standard of care As such we affirm the Judge s observation that the industry standard guidance provided by the Singapore Standard SS 536 2008 Code of Practice the Code for the safe use of mobile cranes would be applicable here GD at 26 We note that the Code was listed as a useful reference under the Workplace Safety and Health Council s Technical Advisory for the Safe Operation of Lifting Equipment Significantly the Code was accepted as the reasonable standard of care to be observed by crane operators by all counsel during the trial note 14 In addition to the Code the stipulations under the WSHA would also be relevant in pitching the standard of care Whether JPW was negligent 44 On the existence of a duty of care towards Moh Seng JPW submitted that the Judge s summary conclusion that legal proximity was satisfied simply because JPW had ordered the crane for lifting works was overly simplistic and failed to take into account the fact that there was no direct contractual relationship between JPW and Moh Seng Rather JPW asserted there had been very little communication between JPW and Moh Seng if at all It was the Lifting Supervisor who was an employee of MA who had assumed all responsibility Moreover the lifting operations were part of MA s scope of work under the subcontracts and the individuals in charge of the part of the worksite where the accident took place were MA s personnel 45 We acknowledge that the brevity of the Judge s reasoning did not satisfactorily explain the basis of legal proximity However his finding that such proximity did exist between JPW and Moh Seng was nonetheless correct As explained above as main contractor JPW would already prima facie have owed a duty of care to Moh Seng simply by virtue of being identified heavily as a responsibility bearer by the WSHA Moreover JPW s narrow and overly technical demarcation of its relationships down to formal contractual lines failed to take into account the reality that it a did exercise effective control and possession over the worksite as main contractor and b must be taken to have had knowledge about the location of the manhole 46 JPW was given effective management and control of the worksite under its main management contract with Crescendas This was common ground As noted in Tan Juay Pah at 53 u nder the first limb of the Spandeck test one of the many factors taken into consideration is the existence of a statutory duty It was undisputed that JPW was an occupier as defined under the WSHA ie the person who has charge management or control of those premises either on his own account or as an agent of another person whether or not he is also the owner of those premises and had to fulfil the relevant duties and responsibilities under it The Judge found that GD at 18 It was beyond debate and confirmed by the subpoenaed Ministry of Manpower officer Koh Chin Chin that JPW had principal responsibility for the Worksite under the Workplace and Safety Health Act Cap 354A 2009 Rev Ed and that JPW had appointed the requisite officers to discharge such responsibility This finding was also supported by the evidence given by Koh Chin Chin at trial note 15 The relevant duties of an occupier under s 11 of the WSHA are as follows Duty of occupier of workplace 11 It shall be the duty of every occupier of any workplace to take so far as is reasonably practicable such measures to ensure that a the workplace b all means of access to or egress from the workplace and c any machinery equipment plant article or substance kept on the workplace are safe and without risks to health to every person within those premises whether or not the person is at work or is an employee of the occupier emphasis added 47 As an occupier under the WSHA JPW could not expect to abrogate from its duty to ensure safety at the worksite simply by looking at the strict contractual arrangements between the parties While acknowledging that it was the licensed occupier of the worksite JPW attempted to draw a distinction between a general duty of care owed by an occupier vis a vis the land occupier s liability and vis a vis the operations being carried out negligence note 16 Yet this distinction has already ceased to exist with this Court s decision in See Toh Siew Kee v Ho Ah Lam Ferrocement Pte Ltd and others 2013 3 SLR 284 See Toh Siew Kee where it was emphatically established that the law in Singapore on occupiers liability can and should be subsumed under the tort of negligence at 76 In See Toh Siew Kee this Court held that the first limb of Spandeck would be satisfied in the vast majority of occupiers having control of the property which they occupy and or the activities carried out there at 80 There was no reason why this should not be the case in JPW s situation as the licensed occupier and main contractor of the worksite Yet it also bears noting that this Court s statement that the vast majority of occupiers having control of the property which they occupy and or the activities carried out there de jure owe a prima facie duty of care to lawful entrants emphasis in original which there is no doubt Moh Seng was was qualified by the observation that this turns on the degree of control which an occupier has over the property concerned and or the activities carried out there at 80 In this respect JPW and MA disputed whose scope of work the lifting operation which resulted in the accident came under discussed in further detail below at 55 56 48 By their own admission JPW also knew at least since 12 August 2008 when photographs of the manhole were taken by JPW about the existence of the manhole In fact it was JPW s submission that the manhole had normally been visible and so obvious to any person or passerby that there would not have been the need of any barricade warning sign or warning note 17 Hence according to JPW if not for the brown soil that must have been mounted by MA due to their excavation works nearby the manhole would have been visible Yet JPW failed to acknowledge that the sheer knowledge that such a manhole existed apart from whatever JPW alleged MA to have done to it gave rise to sufficient proximity between Moh Seng and itself The foreseeability of the damage that may be caused by one s negligence is essential in establishing the proximity needed for a duty of care to arise Therefore JPW s knowledge of the existence of the manhole would certainly have made it reasonably foreseeable that serious damage could be caused in a busy worksite with heavy equipment and machinery making their omission to deal with the manhole even more inexcusable 49 On the second limb of Spandeck JPW s argument that a duty of care should not be superimposed where there had been an established contractual framework consisting of the hiring contract between Hup Hin and Moh Seng the subcontracts between MA and JPW and the crane supply contract between Hup Hin and JPW simply could not stand From a legal policy point of view such an approach is plainly unpalatable In the same parliamentary speech quoted above at 40 Dr Ng Eng Hen critically referred to such situations and explained how the proposed regime sought to address this through a direct imposition of duties albeit in the context of principals engaging contractors for specialised tasks at col 2209 Traditionally a principal who engages a contractor would be engaging the specialist services of the contractor and would not be directing the contractor on how to do the work However today the situation is different Principals often engage contractors and third party labour not for their specialist expertise but precisely so that they can avoid entering into a direct employment relationship for organisational or other reasons In such situations the principal in terms of supervision takes on the role of an employer The Bill thus places on him responsibility for the worker s safety and health as if he were the employer If this were not the case then the duties under the Act could be simply circumvented by a careful crafting of the legal relationship emphasis added in italics and bold italics 50 The case at hand could also be easily distinguished from Man B W Diesel S E Asia Pte Ltd and another v PT Bumi International Tankers and another appeal 2004 2 SLR R 300 Man B W a case which JPW cited as an instance where the court declined to impose a duty of care against parties express contractual arrangements In Man B W this Court observed that a subcontractor which had supplied defective engine parts did not owe a duty of care to the shipowner for the faulty parts due to the shipowner s contract with the main contractor as the shipowner had chosen to seek redress from the main contract by directly contracting with the main contractor However in the current case the presence of the WSH regime alters the weight that must be put on the parties contractual arrangement especially with regards to safety measures which the WSH regime is concerned with Moreover the realities of the situation around the time of the accident was not one like that in Man B W where the shipowner was well aware of the subcontractor s involvement but ultimately made the choice to make the main contractor solely responsible for any defect that could arise at 36 in the contract Accordingly the policy argument which rightfully applied in that case could not be similarly invoked here 51 Having established that JPW did owe Moh Seng a duty of care the standard of care would be that as established in the Code for the safe use of mobile cranes Manholes were specifically identified as one of the possible underground hazards a term frequently referred to in the Code as follows 10 6 Underground hazards Underground hazards that may be encountered on a typical construction site are e Covered shafts and manholes emphasis added 52 The duties and responsibilities involved in ensuring the stability of mobile cranes were set out in the rest of section 10 the relevant provisions of which read as follows 10 1 General In order to ensure that the ground can safely support a mobile crane it will be necessary to obtain information about ground conditions on site The important items to check are a ground character b water conditions and c location of any underground hazards 10 2 Ground classification Ground can be classified into several broad categories for the purpose of highlighting potential problems for siting mobile cranes Special attention is needed for poor ground conditions or where there is lack of data on the nature of the sub soil The broad categories are as follows e Urban sites Potential underground hazards e g basements sewers tunnels water pipes poorly backfilled trenches manholes inspection chambers etc 10 4 Ground bearing capacity On large construction sites where mobile cranes are expected to be in common use over long periods a site survey should be undertaken to identify soil types and underground hazards Further ground improvement may then be required and can take many forms When all surveys are completed any hazards identified and soil improvements completed a site layout plan can be produced to show the location of danger areas access routes and safe working areas for the types of mobile cranes to be used emphasis added 53 As the main contractor JPW clearly had the responsibility to ensure that hazards such as manholes were identified properly through site surveys and then to undertake ground improvements to ensure that these underground hazards did not continue to remain hazardous The sheer importance of this duty to ensure that potential dangers were located and dealt with properly simply cannot be overstated especially in work environments such as construction sites The mere presence of heavy machinery dangerous equipment and high volumes of activity at construction sites would ordinarily already carry high levels of inherent risks and propensity for accidents Therefore measures to reduce these risks cannot be taken lightly and the responsibility to do so cannot be abrogated Yet JPW had unjustifiably failed in this duty to identify and rectify the underground hazard in the form of the manhole in this case JPW was therefore liable to Moh Seng for the damage caused to the crane as a result of its negligence in this aspect Whether MA was negligent 54 Although the Judge found that MA was not contributorily negligent in causing some soil run off to cover the manhole due to its nearby excavation works this was but one peripheral issue in relation to MA s liability Given our discussion above on the underlying rationale of the WSH Regime plainly there is a prima facie duty of care on contractors and subcontractors at construction sites to parties who are present at the construction site Accordingly MA as subcontractor could not escape this duty in the absence of strong countervailing reasons Moreover in our view there were a few other unaddressed factors which pointed towards a duty of care owed by MA toward Moh Seng a the lifting operation that caused the accident was within MA s scope of work b MA knew about the manhole as well and c MA was contractually responsible and deemed fully informed of the conditions at the worksite In addition given our finding above that the Lifting Supervisor had been under the employ of MA at the material time his actions also needed to be assessed against the standards set out in the Code 55 First the lifting operation the cause of the accident was part of MA s scope of work as the crane had undisputedly been requested for by Roger Kung MA s Project Manager MA had required the services of JPW to lift some steel reinforcement bars up to the building under construction and the crane had been hired for this very purpose note 18 Roger Kung further confirmed that the personnel involved in the lifting operation on the morning of the accident included the Lifting Supervisor riggers and signalmen all of whom were employees of MA note 19 In addition this appeared to be the impression of the persons working at the worksite who were interviewed by Koh Chin Chin as well note 20 Witness When I a spoke to the site builders as sorry when I spoke to the site people this was what they told me Court What did they tell you Witness That this scope of works is under MA Builders who is their who is JPW s subcon and Roger Kung was the person in charge 56 The fact that the crane was deployed for works under the scope of MA s oversight was a significant indicator of MA s assumption of responsibility since the overall directive of what had to be done and how it would be done quite apart from the overarching direction of JPW over the entire project would emanate from MA 57 Second apart from the Lifting Supervisor s knowledge of the existence of the manhole see 64 65 below MA itself also appeared to have known about the existence of the manhole The Judge made the following finding GD at 28 It is quite clear the washing bay for laden and unladen lorries would not have been constructed by MA at this location if it were known to MA that the manhole was nearby It was in evidence that MA had previously built and subsequently removed a guardhouse over the former washing bay which confirms that the existence of the manhole was then and subsequently unknown to MA However in our view this finding was with respect mistaken This was a supposition drawn purely on the Judge s intuitive sense of what a contractor s logic would be as there was no evidence led on the non viability of building washing bays or guardhouses over covered manholes it was undisputed that the manhole was not exposed 58 The evidence of JPW s Project Manager Thomas Teo was that the manhole was in fact covered with a thick concrete cover able to withstand the weight of normal traffic note 21 and was readily visible As subcontractors who had been working in that region of the worksite for a few months it is unlikely that MA s workers would not have known that there was a manhole there note 22 Thomas Teo also testified that MA had even carried out works in the manhole itself for a investigation and b sealing the underground discharge opening to some pipes connecting the manhole to a PUB drain note 23 Further Koh Chin Chin testified that the Lifting Supervisor had told her that Roger Kung had specifically warned him about the manhole indicating that Roger Kung did know about the manhole note 24 Q Now can you tell the Court what you are what what you have asked Mr Roger Kung as far as the incident on the 11 th of June was concerned A I asked him what happened So he said he asked his lifting sup to park the crane there and he said he directed away from the manhole Witness Yah So he told his er lifting sup to park it there said away from the manhole and he left and then came back to see that the crane had toppled Q Was Mr Roger Kung aware of the location of the manhole A You have to ask him Court He actually told you that he instructed the lifting supervisor to park there away from the manhole If he used those words Court he must have known that there was a manhole emphasis added in bold italics 59 Therefore contrary to the Judge s finding it appeared that MA did have or at least should have had knowledge of the manhole 60 Third under the subcontracts MA also had the responsibility for and was deemed to be fully informed about the conditions at the worksite Under cl 17 0 of the Letter of Award of all three subcontracts MA was deemed to be aware of the site conditions You shall confirm that you are fully aware of the existing site conditions and constraints You are to comply with the working hours and noise control on site in accordance with the Authorities requirements emphasis added 61 Similarly cl 2 1 of the Standard Conditions of the RC Subcontract and the Wet Trades Subcontract provide as follows 2 1 Subcontractor Fully Informed 2 1 1 The Subcontractor is deemed to have allowed in the Subcontract Sum for all matters concerning the Site Conditions 2 1 2 Any geotechnical or other information concerning the Site or Site Conditions which may be provided by JPW to the Subcontractor is strictly for information only JPW and or the Client accepts no responsibility for the accuracy and or the comprehensiveness of any such information provided The Subcontractor shall inspect and examine the Site and its surroundings and carry out all independent investigations satisfying itself as to the nature of the ground and sub soil the form and nature of the Site flood and ground water levels and the nature of the Works and obtain all necessary information that may affect its design 2 1 3 The Subcontractor may at its own expense carry out any of its own investigations including soils investigations subject to JPW s prior written approval The Subcontractor shall provide JPW with copies of the results of any such investigation free of charge emphasis in original in bold emphasis added in italics and bold italics 62 Although these contractual duties were owed only to JPW under the subcontracts the very existence of these duties for MA to undertake its own checks show that MA could not simply abdicate responsibility for the presence of unsafe features on the worksite We also observe that this is unremarkable given the nature of the work that is going to be done on a construction site by a sub contractor Such work is often actually or potentially dangerous and in the ordinary course one would expect that those about to embark on such work make the effort to assess and investigate the site the surroundings and any relevant features It would ill have lain in the mouth of an entity in the position of MA to then say that it had no responsibility to anyone else injured by reason of its failure to take such basic steps as it was only required to do so as a matter of a contractual obligation owed to its main contractor In fairness to MA s counsel it must be said that this was not a contention it put forward 63 Fourth as the key person in the entire lifting operation the Lifting Supervisor himself breached the standard of care set out in the Code The duties of a lifting supervisor are set out under the following sections of the Code as follows 9 3 1 2 The person authorised to operate the crane c shall ascertain whether the ground conditions in particular the ground surface on which a mobile crane is to be operated are safe for travel or any lifting operation and if he is of the opinion that it is not safe for travel or any lifting operation he shall report this to the lifting supervisor 9 3 3 Lifting supervisor The appointed lifting supervisor shall be responsible to a co ordinate and be present to supervise all lifting activities and ensure that the lifting operation is carried out safely b ensure that only registered crane operators appointed riggers and appointed signalmen participate in any lifting operation involving the use of a mobile crane c ensure that the ground conditions are safe for any lifting operation to be performed by any mobile crane d ensure that

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  • JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm)[2007] 4 SLR(R) 460; [2007] SGCA 40
    without saying that the principles enunciated by older case law should be treated with a degree of wariness to the extent that it must be acknowledged that the standards of auditing which prevailed more than a century ago have evolved into more exacting ones today see In re Thomas Gerrard Son Ltd 1968 Ch 455 Thomas Gerrard at 475 66 On the facts we have to bear in mind the fact that the audits in question were statutory audits as opposed to special investigative audits commissioned for a specific purpose involving the audit of samples on a test basis It is axiomatic that the nature of the audit is crucial in ascertaining the requisite standard of care to be imposed In addition the scope and extent of the respondent s duties as auditors can be gleaned from the contractual terms of engagement under which the respondent bound itself to perform sufficient tests to obtain reasonable assurance as to whether the information contained in the underlying accounting records and other source data was reliable and sufficient as the basis for the preparation of the accounts emphasis added above at 6 67 Singh s report describes in painstaking detail the manner in which the audits were carried out in accordance with the standards prescribed by the SSAs Whilst this is undoubtedly relevant it should be noted that what is really in controversy is not so much the defensibility of the general manner in which the respondent carried out the audits which is largely undisputed but rather whether its failure to verify information or detect weaknesses in relation to three specific matters see 28 above constituted a breach of duty amounting to negligence as a matter of law 68 In the same vein the respondent s single minded emphasis on the inherent limitations of an audit and its submission on the unrealistically high standard that requires the prevention and detection of every bit of irregularity and fraud at para 5 7 of Singh s report cannot deter us from making a finding in relation to the respondent s undisputed series of inactions or omissions in the present case apropos an issue that had initially caused it considerable concern It cannot be gainsaid that it was the respondent itself who had appreciated the need at the outset for independent verification of Riggs remuneration It however failed quite inexplicably to diligently pursue the concern s it had earlier identified Thus the thrust of the inquiry should be on whether these omissions amounted to a lack of reasonable care and or a breach of the respondent s contractual duty to the appellant 69 At this juncture it is also necessary to reiterate that a court must always guard against the scapegoat effect that often magnifies ex post facto and makes plausible culpability by employing the spectacles of hindsight It is almost intuitive for a third party observer after the occurrence of an unhappy event to conclude that procedures could or should have been adopted to obviate the subsequently known risks On the other hand an auditor looking at the matter as it presented itself at the material time would usually quite naturally conclude that he or she was acting reasonably It is crucial in the interests of justice that the standard of reasonable care be objectively assessed on the basis of knowledge then reasonably available as well as measures that could have been reasonably adopted at the material time The acid test is certainly not one of retrospective plausibility Failure to verify Riggs entitlement to remuneration 70 The first and in our view most crucial issue in the present appeal relates to the appellant s contention that the respondent had negligently failed to verify Riggs entitlement to remuneration during the audits for FYs 1999 to 2001 The respondent could not have missed the fact and indeed did not that Riggs was the only director in Singapore whose remuneration and benefits amounted to more than half a million dollars a substantial amount by any yardstick In relation to FY 2000 Riggs remuneration of 456 574 constituted 23 of the appellant s total staff costs of 1 993 927 and approximately 6 of its total revenue As for FY 2001 Riggs remuneration was 617 229 constituting approximately 25 of the total staff costs of 2 424 198 This amounted to approximately 9 of the appellant s total revenue for that year 71 It should also be pointed out that the appellant s expert Chin conceded under cross examination that he was satisfied that the respondent had carried out the statutory audits for all three FYs in compliance with the terms of engagement and the relevant auditing standards except in the area of Riggs remuneration All said and done this particular allegation constitutes the only sustainable assertion that merits judicial scrutiny and must therefore be critically evaluated on the touchstone of reasonable care 72 In relation to the FY 1999 audit there was some dispute as to whether Ken Ling an audit assistant assigned to the FY 1999 audit had in fact asked for Riggs employment contract Ken Ling denied ever having done so whereas Sandy testified to the contrary Similar obstacles were encountered in the FY 2000 audit when Pamela Pang the officer in charge of that particular audit asked Riggs for a copy of his employment contract There is a similar dispute as to whether Riggs had then refused to produce his employment contract Sandy s version of the material events or whether he had informed Pamela that he did not have an employment contract Pamela s version 73 Having considered the evidence we see no reason to disturb the trial judge s findings of fact on this issue see GD at 19 First we note that Ken Ling did not ask for Riggs contract during the FY 1999 audit and secondly that Pamela had in the FY 2000 audit asked Sandy for it Sandy then told her to check with Riggs Riggs gave Pamela the impression that no such contract existed and suggested that she obtain confirmation from the other director Cullen Riggs was clearly giving the auditors the runaround For the avoidance of doubt we should state that the following analysis proceeds on the basis of our acceptance of this factual substratum Absence of Riggs employment contract 74 To begin with it appears that the partner in charge of the FY 1999 audit failed to adequately direct his mind to the proper certification of Riggs remuneration Apart from the failure to inquire about the existence of Riggs employment contract the respondent failed to even obtain a certification by Cullen despite this being its initial preferred form of verification It simply neglected to pursue the matter any further 75 Regarding the FY 2000 audit we find the respondent s unquestioning acceptance of the absence of Riggs employment contract somewhat perplexing and clearly open to criticism If Riggs did not have an employment contract or terms of engagement how would any objective verification of his entitlements be possible without direct confirmation from Cullen 76 In Pacific Acceptance 51 supra at 67 68 Moffitt J explained the dictates of reason and experience requirement in the following measured terms Prima facie the auditor s job is to check material matters for himself from available documents and he does not ordinarily do his job or audit if he merely seeks the assurance of another as to the check that other has made or as to his views as to the effect of documents In principle an auditor is really in no different position from any skilled inquirer To the inquirer in any field to know by direct examination is surer proof than to believe on the hearsay of others or by inference The latter and second best alternatives may well be acceptable if a direct examination is not possible or the delay expense or effort that will be occasioned by such examination is out of proportion to the importance of the matter to be proved 77 The absence of an employment contract or similar document in the circumstances of this case would have tolled the alarm bells in the mind of a reasonably competent auditor exercising the requisite skill and responsibility tempered by a healthy degree of professional scepticism Given that an auditor s core competence entails the derivation of reasonable assurance that the underlying information contained in the accounting records are reliable and sufficient the respondent should have at the very least made further inquiries into Riggs anomalous position and uncompromisingly required independent verification 78 In any event the respondent s unreflective attitude towards the actual existence of Riggs employment contract is not in itself determinative given that alternative forms of audit evidence could still have been procured Whilst we accept that the choice of sufficient appropriate audit evidence is necessarily a function of each individual auditor s judgment in accordance with the guidelines prescribed by SSA 8 such judgment has to be exercised with the requisite standard of skill and care Whether or not there has been a breach of the requisite standard of reasonable care hinges on the objective sufficiency of such alternative evidence Sufficiency of Cullen s signature on the director s reports and draft financial statements as alternative audit evidence 79 In the FY 2000 audit after Riggs had informed the respondent that he did not have an employment contract the respondent requested for alternative evidence of Riggs remuneration in the form of a letter dated 21 February 2001 to the appellant The material portion of the said letter stated as follows We would appreciate your assistance in following up on the outstanding matters stated below a Certificate of director s remuneration from John P Riggs b Confirmation from James Glenn Cullen in the remuneration package to John P Riggs and his shareholding percentage in Cranberry Gold Limited the appellant s immediate holding company and c Certificate of minutes from your Company Secretary emphasis added 80 On 22 February 2001 Sandy forwarded to the respondent an e mail from Riggs dated 21 February 2001 stating that once the appellant receive d the final audit write up Riggs would sign then forward to Cullen for his signature once Cullen sign ed this audit report this would be his acknowledgement of Riggs remuneration Unfortunately the respondent failed to obtain any of the confirmations it had itself initially sought Instead the respondent unthinkingly certified the unqualified accounts as true and fair by purporting to rely on management representations evidenced in the form of Cullen s signature on the draft financial statements 81 In the FY 2001 audit the respondent made a similar request for the same three forms of audit evidence earlier solicited Although Riggs certification of his own remuneration was eventually received the management representation letter and Cullen s confirmation of Riggs remuneration were once again not obtained notwithstanding that John Teo John the partner in charge of the audit had made it clear to the appellant that the respondent required these confirmations prior to its approval of the financial statements This was done via an e mail dated 17 May 2002 addressed to Sandy which stated as follows Today I have sent by fax the following for you to arrange for them to be duly signed and returned to us so that we can sign the auditor s report 1 Confirmation of S 21 150 71 due from Mr John P Riggs 2 Director s remuneration of Mr John P Riggs to be duly signed Since Lim Cheng Hui is on leave perhaps he may want to speak to our audit partner Mr John Teo before signing 3 Management Representation Letter to be duly signed and returned to us by fax and mail Would appreciate your urgent attention to the above so that we can close our audit file and your audited financial statements could be quickly submitted to the Registrar of Companies 82 In the light of the fact that Cullen s signature on the director s reports and draft financial statements was eventually accepted and relied upon by the respondent as an adequate verification of Riggs entitlement to remuneration the nub of the issue before us is whether Cullen s signature constituted reasonable assurance The respondent s process of reasoning choice of audit procedure and purported basis for concluding that the audit evidence relating to Riggs remuneration was sufficient and appropriate must therefore be carefully scrutinised 83 John testified that he had considered the appellant s organisation and reporting structure before deciding that he could rely on Cullen s signature on the draft financial statements He allegedly took into account and evaluated inter alia the following a JSISC had overall control and exercised close supervision of the appellant s accounts b John expected detailed accounts to be continuously sent by the appellant to JSISC c Riggs remuneration was monitored and reviewed by Cullen and or Hora d the amount of director s remuneration was calculated from information figures and schedules given to the respondent by Sandy or Riggs e the appellant s draft financial statements would always be sent to JSISC for approval and f Riggs was the only paid director whose remuneration was disclosed as a separate item in each year s financial statements 84 The common thread linking these factors appears to be the oversight and control allegedly exercised by JSISC over the appellant as well as the monitoring and review function assumed to have been carried out by Cullen and or Hora apropos the draft financial statements 85 With respect we find this justification rather contrived and unconvincing While we accept that alternative sources of oversight and control may impact the initial assessment of audit risk the alleged checks and balances provided by JSISC cannot and should not detract from the respondent s core responsibility as auditors to directly verify Riggs remuneration or failing which to seek reasonable assurance by obtaining sufficient and appropriate alternative audit evidence John could have without any difficulty or unpleasantness insisted on Cullen directly sending him an e mail message confirming that the remuneration had indeed been authorised a point that we will return to subsequently 86 In Pacific Acceptance 51 supra at 87 Moffitt J considered a similar attempt to rely on a company s system of internal control and noted I t is well to remember that reliance on a company s own system cannot validly and reasonably be used by auditors so as to excuse them for passing responsibility on to others for the performance of their own duty It ought not to be used after a perfunctory appraisal and token testing of the company s system to substitute the opinion and work of management for their own There are three essentials that must be met before an auditor can reasonably rely on the company s system of internal control First there must be a proper inquiry to ascertain the company s system This would include ascertaining such features as indicate the strength and weaknesses of the system and hence its reliability Second there must be an appraisal of it in that a person of sufficient auditing competence should make a decision as to the extent if any that the auditors can properly rely upon it He should decide what procedures should be adopted to check that it is operating as intended and what other conditions should be met before reliance can be placed upon it Third there must be a testing of its operation All these essentials may call for revision in the course of the audit 87 On the facts there was no evidence that the respondent had carried out any appraisal of the system of oversight and control allegedly exercised by JSISC As such a breach would be established if the respondent had failed to obtain reasonable assurance or verification of the requisite figures see above at 77 regardless of whether or not another entity was negligently supervising or monitoring the same figures In any event such an argument would if at all be more relevant to a claim in contributory negligence 88 Unsurprisingly the respondent has tendered an admirable laundry list of the steps which it allegedly took for the purpose of verifying Riggs remuneration These include a reviewing the audit working papers for the preceding year b analysing the type of expenditure charged as Riggs benefits c comparing the benefits Riggs received to those received in the previous year d examining the draft profit and loss statements to determine the variances in Riggs remuneration and other benefits from the preceding year and e where the variance was above the materiality criteria level carrying out an analytical review of director s other benefits to determine if the variance was reasonable 89 At first blush these purported processes create an impression of professional comprehensiveness accompanied by studied meticulousness However we are of the view that these supplemental steps even if actually carried out lose much of their cogency or effectiveness in the light of the respondent s ultimate and inexplicable failure to adequately verify Riggs entitlement to remuneration by simply following up on its very own requirements Analytical reviews and variance comparisons must be assessed in relation to their subsequent verification against sufficient and appropriate audit evidence as figures cannot simply be analysed or compared in isolation The alleged positive steps taken by the respondent are quite commendable but they cannot detract from the respondent s eventual slipshod reliance on Cullen s signature on the draft financial statements without even informing Cullen that his signature would be relied on for this purpose a crucial omission that constitutes the heart of the breach of duty 90 In the proceedings below the trial judge accepted the respondent s submission GD at 48 that as Riggs was the sole director receiving remuneration a confirmation from Cullen who was the only other director and the majority shareholder was better audit evidence compared to the mere sighting of an employment contract The trial judge concluded that this would cover the situation where an employment contract became outdated or did not comprehensively cover all benefits He observed GD at 47 that Cullen had adopted a rather informal approach on the issue of Riggs entitlement to benefits and approved specific expenses outside of what was agreed upon and accordingly concluded that the respondent was justified in accepting Riggs suggestion that Cullen s approval by his signature on the draft financial statements would constitute approval of Riggs remuneration package 91 In addition the trial judge noted GD at 50 that Riggs was completely transparent about his remuneration which was specifically disclosed in monthly profit and loss accounts schedules operating budgets and draft financial statements The respondent has latched on to this point on appeal and has accordingly emphasised that Riggs behaviour was completely open and aboveboard as he had made full and specific disclosure of his actual remuneration and benefits to all concerned While this may be so it does not exonerate or relieve the respondent from its responsibility of verifying Riggs actual entitlement 92 To begin with while we find the trial judge s acceptance of Cullen s confirmation as better audit evidence see 90 above theoretically defensible we should point out that this wholesale acceptance of Singh s expert opinion that such confirmation obtained was adequate fails to adequately take into account the manner in which the confirmation was obtained This is pivotal in determining whether the respondent had acted reasonably in the circumstances 93 In particular the trial judge alluded to the reasonableness of relying on Cullen s signature to confirm only one aspect of the audit GD at 73 viz Riggs remuneration in contrast with the impermissibility of a blanket reliance on the same as confirmation of the entire audit With respect the trial judge s inquiry should not have been directed to the scope of confirmation sought to be achieved by reliance on Cullen s signature but rather to the more crucial process of verification While reliance on a director s signature to indemnify the entire audit process is clearly unjustifiable it surely does not follow that reliance on the same to confirm one aspect of the audit will always be permissible The element of reasonable assurance remains paramount 94 Notwithstanding Singh s general opinion that it was proper for the confirmation of Riggs remuneration to come from Cullen in the form of a signed copy of the appellant s audited financial statements we are of the view that the legitimacy of such a course of action can be sustained only if the relevant fields for verification were adequately drawn to Cullen s attention for specific review and confirmation On the facts Cullen was clearly unaware that his signature would be relied on by the respondent as confirmation of Riggs entitlement to the specified remuneration It simply did not suffice for the respondent to rely on the appending of Cullen s signature to the entire agglomeration of audited statements as confirmation of Riggs remuneration without first breathing a word to Cullen or even hinting that his signature would be relied on for this purpose To sanction such an unsatisfactory process would create a charter for the dereliction of core auditing responsibilities 95 Second this argument assumes that Cullen would be able to decipher from the general entry directors remuneration in the draft financial statements the precise breakdown of the remuneration Riggs had received for the year in question While the respondent was quick to highlight the fact that the appellant s audited financial statements separately and distinctly set out the directors remuneration which included Riggs benefits this must be evaluated in the light of the fact that no notice whatsoever was given to Cullen that he was to particularly note and verify Riggs remuneration by his signature Admittedly Cullen would have been expected to review the financial statements before appending his signature but without the particular item being specifically brought to his attention it is untenable to suggest that his signature constituted adequate verification of all of the hundreds of items contained therein thereby completely absolving the respondent of further responsibility Indeed a comprehensive verification by Cullen of every single figure in the statements would simply have rendered the task of the auditors otiose 96 Third the trial judge should not have taken into account Cullen s informal approach to the issue of Riggs entitlement to benefits in assessing the materiality of the breach at the time of the audit The crucial issue is whether the respondent took the appropriate steps to obtain reasonable assurance of Riggs entitlement to remuneration and not whether objective evidence did in fact exist to ascertain this a consideration which if at all would be more relevant to refuting causation 97 Fourth Riggs seemingly barefaced approach cannot inevitably exonerate the respondent s dereliction of duty His full disclosure could have reflected his bravado and or confidence that his malfeasance would not be discovered or it may just as well have been a tactical manoeuvre to mislead any investigative efforts ie by being barefaced about the moneys received but concealing his true entitlement Seen in this light the respondent s breach of duty is coloured by a more disturbing hue as it reflects the failure to identify verify and detect a material error on the face of the appellant s financial statements see above at 66 98 Ultimately the crux of the respondent s breach can be unmistakably attributed to the eventual unjustified reliance on Cullen s signature without any attempt whatsoever to ensure that his attention had been drawn to the importance of verifying Riggs remuneration It is this error of judgment based on a misguided assumption of sufficiency and reliability that is the kernel of our finding that the respondent failed to exercise due care and skill in auditing the appellant s accounts 99 In addition to reliance on Cullen s signature the respondent sought to rely on the self certification by Riggs of his entitlement to the remuneration In the proceedings below the appellant relied on the case of Deputy Secretary to the Government of India v S N Das Gupta AIR 43 1956 Cal 414 for the proposition that an auditor was not entitled to simply rely on the representations of management without independent verification The trial judge sought to distinguish this on the basis that it involved specific actions required in a special form of audit whereas the present case involved one of many items to be audited and did not require any special form of verification see GD at 71 The particular extract cited to the trial judge was as follows The whole object of an audit is an examination of what the management have done and if the statements of the very persons who constitute the management were to be accepted in all matters even in matters capable of direct verification an audit would be an idle farce 100 With respect the trial judge did not adequately appreciate the need for specific verification in the prevailing circumstances The general precaution against over reliance on management representations which is articulated so lucidly in this extract makes eminent sense especially in relation to items which are capable of direct verification An auditor exercising the requisite level of skill and judgment cannot abdicate his core responsibility of verification by simply relying on management representations to the same effect particularly if the item in question relates to a matter in which the representor has a direct interest It is also plain common sense that an auditor should seek independent objective verification of any controversial item that causes him concern 101 This principle a corollary of the requisite standard of care is mirrored in SSA 1 which mandates at para 6 that The auditor should plan and perform the audit with an attitude of professional scepticism recognizing that circumstances may exist which cause the financial statements to be materially misstated For example the auditor would ordinarily expect to find evidence to support management representations and not assume they are necessarily correct emphasis added in bold italics SSA 1 is further reinforced by SSA 8 which unequivocally provides at para 2 that t he auditor should obtain sufficient appropriate audit evidence to be able to draw reasonable conclusions on which to base the audit opinion emphasis in original omitted 102 In Pacific Acceptance 51 supra at 71 the court considered the process of obtaining verification from the management of a company and held that I nquiry should be directed to management or the company s staff at the appropriate level and in deciding the level to which the inquiry should be directed or the level from which information should be accepted and acted on without more the interest of the person concerned is relevant In circumstances where the matter is of interest to the person to whom the inquiry is directed the inquirer would need to reali s e that the information was being given by an interested party and weigh it accordingly and if the matter was possibly material look for other confirmation of the explanation and be prepared if the matter was sufficiently material to go to the board in the case of a general manager or to head office in the case of a branch manager 103 The trial judge sought to minimise the relevance of these observations on the basis that the respondent had no reason to doubt Riggs or Sandy and that it would be onerous to require the respondent to obtain direct confirmation from Cullen see 26 above With respect we are unable to agree 104 On the facts the respondent was already in direct contact with Hora and it would have been both a natural and logical progression to direct its inquiry on Riggs entitlement to remuneration to him Hora or to Cullen directly in the form of a direct e mail as was the usual practice It certainly did not require the respondent to embark on any particularly novel course of action or to really exert itself in pursuing its queries in this matter to a satisfactory conclusion At the very least the respondent should have informed Cullen that it would be relying on his signature to confirm Riggs entitlement to remuneration instead of simply leaving the process of verification to Riggs who was undoubtedly an interested party 105 Indeed the appellant s allegations of negligence resonate even more strongly when we consider the respondent s actual awareness of Riggs attempt to cloud the issue when he obtained Cullen s signature Riggs had sent an e mail to Cullen dated 25 February 2001 which was later forwarded to the respondent that stated I have signed the original sets of audit reports and Sandy will forward via pouch to you now re this additional message from the respondent would you be able to give us a simple email message to confirm what they are asking about which is the 50 50 profit share we have on the air freight between Ten Up and JSI SFO our files show this is the case but the respondent wants something from SFO confirming this is the arrangement between the two offices 106 The smoke and mirrors conjured by Riggs in the above e mail are all too apparent Riggs had insidiously lulled Cullen into a false sense of security by telling him that he Riggs had already signed the audit reports thus representing that everything was in order He cemented the misdirection by raising the profit sharing query but deliberately omitted to tell Cullen of the respondent s request for verification of his Riggs remuneration and then completely avoided the crucial fact that the respondent would be relying on Cullen s signature for such a purpose This sleight of hand bears all the devious hallmarks of a person well familiar with the working dynamics and loopholes of the processes involved and in particular the likelihood that Cullen would not delve too deeply into the financial reports that had been submitted for his signature This is confirmed by Cullen himself when he testified that he delegated all such accounting functions to Hora Despite being privy to the e mail which quite clearly obfuscated the nature of the inquiry sought the respondent nonchalantly accepted the sufficiency of such a management representation on Riggs remuneration Such a cavalier approach in pursuing a train of enquiry was rightly castigated in Pacific Acceptance 51 supra at 66 where the court held that The auditor equally fails to do his duty if some irregularity or something unusual is discovered and he dismisses it saying to himself so far as he applied his mind to the matter that there is no occasion to check further because there must be an explanation because there is no possibility of fraud 107 The essence of an audit is to obtain and provide reasonable assurance that a company s accounts provide a true and fair view of the financial position of the company The duty to verify and to be generally sensitive to the possibility of fraud is an inescapably inherent feature of an audit We are of the view that the respondent failed to meet this essential responsibility in not only failing to adequately monitor the confirmation process but also failing to adequately scrutinise the contents of the confirmatory e mail to Cullen see 105 above to which it was undeniably privy What was Cullen confirming He certainly was not confirming that Riggs remuneration as indicated in the accounts was correct This flaw is significant given that the respondent is seeking to rely heavily on the evidence of such confirmation to support its alleged verification of Riggs remuneration While it must be acknowledged that there are often circumstances in which an auditor may justifiably be satisfied with and rely on letters of confirmation sent by the client such a process needs to be adequately policed and appraised Additional enquiries may sometimes be required to ensure the chastity of the verification process A mere signature on financial statements cannot in every case be inevitably relied on by an auditor as confirming that all of its contents are either accurate or have been verified 108 Finally while the respondent now relies on a carefully woven tapestry of considerations which allegedly entered into its decisional matrix at the relevant time we note that they were not documented in its audit working papers SSA 9 at para 6 provides that The auditor should record in the working papers information on planning the audit work the nature timing and extent of the audit procedures performed the results thereof and the conclusions drawn from the audit evidence obtained Working papers would include the auditor s reasoning on all significant matters which require the exercise of judgment together with the auditor s conclusion thereon In areas involving difficult questions of principle or judgment working papers will record the relevant facts that were known by the auditor at the time the conclusions were reached emphasis added in italics 109 In the circumstances we find the respondent s purported reliance on Cullen s signature without even a cursory attempt to draw his attention to the nature of the verification sought somewhat dubious given that none of the factors that allegedly impacted this decision were recorded in the audit working papers for three successive years 110 It appears to us that the unquestioning deference and trust accorded to Riggs clouded the respondent s better judgment Riggs insidious influence and powers of persuasion not only extended to his employees and Cullen but also tinged his relationship with the respondent This is disturbingly manifested in the respondent s failure to pursue and obtain what it had initially considered and sought as sufficient appropriate proof of Riggs authorised remuneration 111 It is of paramount importance that auditors are not readily cowed or deflected by senior management of a company They should not allow themselves to become mere rubber stamps by adopting an undue degree of deference to management representations Subject to the practical limitations of an audit items that can be directly verified should whenever practical be in fact directly verified such verification goes to the core of an auditor s skill and competence and is a function of the appropriate degree of professional scepticism which all auditors must adopt On the facts the respondent had plainly accorded an indefensible degree of deference to Riggs instead of assuming the burden of independent verification coupled with an attitude of professional scepticism that all auditors should typically stake their reputations upon 112 That having been said we remain fully cognisant of the commercial realities that require the accordance of a certain degree of sensitivity and outward deference to senior levels of management who may at times be difficult and uncooperative It should be reiterated however that at no time should the concern or fear of biting the hand that feeds it be a reason for compromising the integrity of auditing procedures or corporate governance standards Prudence and integrity are the hallmarks of the accounting profession At the end of the day auditors must obtain sufficient and appropriate audit evidence to draw reasonable conclusions and to provide a basis for their opinion on the financial statements Professionalism embellished with good interpersonal skills can go a long way towards achieving the right equilibrium without unduly jeopardising client relationships Failure to qualify audit reports 113 Even assuming that the respondent was genuinely unable to obtain sufficient and appropriate audit evidence whether by Riggs refusal to co operate the absence of records or otherwise it was incumbent on the respondent to qualify its audit reports in the light of the various scope limitations experienced Such a practice is mandated by SSA 8 at para 18 which states as follows When in substantial doubt as to a material financial statement assertion the auditor would attempt to obtain sufficient appropriate audit evidence to remove such doubt If unable to obtain sufficient appropriate audit evidence however

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  • Dr Khoo James and Another v Gunapathy d/o Muniandy and another appeal[2002] 2 SLR 414; [2002] SGCA 25
    and have reached a defensible conclusion on the matter 1998 AC 232 at 241 242 1997 4 All ER 771 at 778 I n my view the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant s treatment or diagnosis accorded with sound medical practice the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis In particular in cases involving as they often do the weighing of risks against benefits the judge before accepting a body of opinion as being responsible reasonable or respectable will need to be satisfied that in forming their views the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter Lord Browne Wilkinson however went on to emphasise that it would be a rare case where professional opinion would fall foul of the threshold test of logic 1998 AC 232 at 243 1997 4 All ER 771 at 779 In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion In particular where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions But if in a rare case it can be demonstrated that the professional opinion is not capable of withstanding logical analysis the judge is entitled to hold that the body of opinion is not reasonable or responsible I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence As the quotation from Lord Scarman makes clear it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant s conduct falls to be assessed 60 It is instructive to examine the application of the Bolitho test on its facts There a child was hospitalised for respiratory problems The child then suffered from breathing problems twice in the same day and both times the doctor was called but failed to turn up Subsequently the child collapsed due to a failure of his respiratory system and suffered a cardiac arrest which led to his death The negligence of the doctor was established but the issue of causation involved an issue of medical standards The question was whether a doctor having arrived in time would have intubated the child thereby averting cardiac arrest Five experts called by the plaintiff gave evidence that a competent doctor would have so intubated However three experts called by the defendant said that intubation was inappropriate as the risk of total respiratory collapse was small and did not justify the invasive and risky procedure of intubation Lord Browne Wikinson found that the defendant s expert witnesses were not illogical in arriving at their opinion Accordingly the House of Lords ruled in favour of the defendant health authority 61 The jurisprudence of Bolam and Bolitho has subsequently found affirmation within our local courts although its application and ambit have not been discussed in detail In Yeo Peng Hock Henry v Pai Lily 2001 4 SLR 571 LP Thean JA affirmed the application of the Bolam test as supplemented by Bolitho However the discussion was understandably brief as the issue of fault was not in serious dispute The defendant doctor had essentially conceded that he had breached his duty of care by admitting that a general practitioner should have immediately referred a suspected case of detached retina to a specialist instead of waiting to see if the symptoms worsened LP Thean JA said at 16 The next question is whether in failing to advise Ms Pai to go immediately to the A E Unit at the SGH or the SNEC or an eye specialist in private practice that very afternoon of 23 December 1996 Dr Yeo had breached the duty of care which he owed as a general practitioner Before the judge it was accepted by both parties that the test applicable in determining this issue was that laid down in Bolam v Friern Hospital Management Committee 1957 2 All ER 118 On that test a doctor would not be considered as negligent or in breach of duty in attending to and treating his patient if he acted in accordance with a practice adopted as proper by a responsible body of medical men skilled in that particular field notwithstanding that there was a body of opinion that might or would take the contrary view This test was supplemented by Bolitho v City and Hackney Health Authority 1997 4 All ER 771 1997 3 WLR 1151 where the House of Lords held that while assessment of medical risks was for medical experts to make a judge could in a rare case disregard a body of opinion as not reasonable or responsible where it could not be logically supported In this case it is not necessary to consider these tests in any detail for it was accepted by Dr Yeo that a detached retina is an emergency and any competent general practitioner would have advised the patient to go immediately to a hospital or consult an eye specialist 62 The application of Bolam was also closely considered by Tan Lee Meng J in the High Court case of Vasuhi d o Ramasamypillai v Tan Tock Seng Hospital 2001 2 SLR 165 In citing Bolitho the learned judge noted at 31 that It does not follow that a defendant doctor or hospital will avoid liability for negligent treatment merely because there is evidence from a number of medical experts to the effect that the treatment accorded to a patient accords with what other doctors might have done He then referred to Lord Browne Wilkinson s dicta in Bolitho and noted that its contribution to the Bolam jurisprudence was to put the matter in its proper perspective He also endorsed Lord Browne Wilkinson s cautionary approach and said at 33 It ought to be noted that a judge should not be too quick to substitute his opinion for that of medical experts 63 In our view Bolitho presented a timely addendum to the Bolam test It gave voice to a commonsense understanding which was hitherto unexpressed that the Bolam test did not represent immunity from judicial inquiry over the medical process It was not to be satisfied by the production of a dubious expert whose professional views existed at the fringe of medical consciousness An expert view in order to qualify as representative of a responsible body of medical opinion had to satisfy the threshold test of logic 64 This begs the question of what the threshold test of logic entails Lord Browne Wilkinson described it as an essentially two stage inquiry and we would respectfully adopt his analysis The first inquiry according to the learned Law Lord is whether the expert directed his mind at all to the comparative risks and benefits relating to the matter It is accordingly the process and not the result of the expert s reasoning that is material in the eyes of the court The court must be satisfied that the expert had considered and weighed all the countervailing factors relevant to the issue Bare and unsupported assertions in this respect would thus fail the test at this stage 65 The second stage of inquiry relates to whether the medical expert had arrived at a defensible conclusion as a result of the balancing process We admittedly found cause for concern in the open textured nature of this phrase Interpreted liberally Bolitho could unwittingly herald invasive inquiry into the merits of medical opinion For if defensible were to be given a meaning akin to reasonable the Bolam test would only be honoured in lip service A doctor would then be liable when his view as represented by the defence experts was found by the court to be unreasonable We do not think this was the intention of House of Lords in Bolitho To our minds a defensible conclusion connotes the satisfaction of two concepts First the medical opinion must be internally consistent on its face It must make cogent sense as a whole such that no part of the opinion contradicts with another A doctor cannot say for example that he supports a certain approach and attest that in that very situation he would nevertheless have done quite the opposite Second the opinion should not fly in the face of proven extrinsic facts relevant to the matter It should not ignore or controvert known medical facts or advances in medical knowledge 66 A useful illustration of such a comparison with extrinsic facts can be found in the case of Hucks v Cole 1993 4 Med LR 393 which was cited by Lord Browne Wilkinson in Bolitho as an example of a defendant held to be negligent despite the existence of a body of professional opinion sanctioning his conduct In Hucks v Cole the defendant doctor had failed to treat with penicillin a patient who was suffering from septic spots on her skin These spots contained organisms capable of leading to puerperal fever A number of distinguished doctors gave evidence that they like the defendant would likewise not have administered penicillin The Court of Appeal in a judgment delivered by Sachs LJ nevertheless found the defendant negligent on the basis that this revealed a lacuna in professional practice where risks of grave danger were knowingly undertaken even though they could be prevented by an easy and inexpensive method of cure The court accordingly found that there was no proper basis for this lacuna in the profession Sachs LJ said at p 397 On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf but it is not as Mr Webster readily conceded conclusive The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well known advance in medical knowledge or whether they stem from a residual adherence to out of date ideas This dicta to our minds is illustrative of the second aspect of what is a defensible conclusion The expert s opinion does not stand in vacuo An advancement in medical science or a known medical fact which is patently ignored are extrinsic facts which can nevertheless render a body of opinion illogical 67 We have thus far addressed the meaning of the Bolam test as supplemented by the Bolitho ruling At this juncture we also find it appropriate to make two comments on the ambit of the test 68 The first comment relates to the analogy drawn between medical negligence and other forms of professional negligence Bolam in several parts of its wording makes reference not only to medical practitioners but to all professionals in general Lord Browne Wilkinson in arriving at his conclusion in Bolitho cited as support how judges were prepared to adjudicate over the practice of lawyers in the Privy Council case of Edward Wong Finance Co v Johnson Stokes Master 1984 AC 296 Significantly in that case there was a body of professional opinion almost universally held in Hong Kong in support of the actions of the defendant lawyers They had conducted a mortgage transaction in the Hong Kong style where loan moneys were paid over against an undertaking by solicitors for the borrowers to subsequently hand over the executed documents The weakness of this system lay in the possibility that a dishonest solicitor could abscond with the money which had indeed happened in this case The Privy Council despite industry wide acceptance of the practice found that it was neither reasonable or responsible and that the defendant s solicitors were liable in negligence Edward Wong was later followed locally in Yeo Yoke Mui v Ng Liang Poh 1999 3 SLR 529 538 where LP Thean JA delivering the judgment of this court pointed out in much the same vein that the fact that the respondent lawyer had complied with the standard conveyancing practice in Singapore did not preclude a finding that he had been negligent in providing insufficient advice to his client 69 The trial judge in addressing these authorities concluded that they required that expert medical evidence like all expert evidence be subject to the scrutiny of the court and be discarded if found to be unsupported by sound reason or logic We hesitate to apply such a broad brush to what are really two differing strands of judicial reasoning Although Bolam represents the starting point for the standard of care for all professionals its specific test refers to the medical profession Hence the willingness of the court to adjudicate over differing opinions in other professions should not be transposed to the medical context While judges are eminently equipped to deal with the practice and standards of for example the legal profession the same cannot be said with the intricacies of medical science The fact that Edward Wong supra was cited in Bolitho should not therefore be treated as an invitation to merge the treatment of expert medical evidence with that of other expert evidence 70 The second and final comment we would make relates to the right of the trial judge to make a finding of fact preliminary to the application of the Bolam test It is a well settled principle that a question of fact as opposed to a question of the standards of medical practice does not fall within the province of the Bolam test Questions of fact are therefore rightly capable of adjudication by the judge This point is best illustrated on the facts of the recent case of Penney v East Kent Health Authority 2000 PNLR 323 There the plaintiffs underwent cervical smear tests but the cytology screeners employed by the defendants did not diagnose that they were potentially cancerous As a result the claimants developed invasive adenocarcinoma of the cervix which necessitated a hysterectomy Lord Woolf MR in the Court of Appeal held that the question of what was to be seen on the slides was a question of fact which was answerable by the trial judge The trial judge had after hearing expert evidence made his finding on the balance of probabilities that there were cancerous cells on the slides Having accepted this fact the judge could then apply the Bolam test to the question of whether the reasonably competent screener would have observed this result on the slide On the facts it was held that the reasonable screener could not have missed this diagnosis and that the defendant health authority was accordingly negligent 71 The salient point in Penney supra was that the trial judge s finding of fact as to the correct diagnosis was not the touchstone of liability The crucial question was what the medical practitioner and not the judge would have diagnosed under the circumstances It does not follow then that the doctor would be negligent simply because his conclusion was different from that of the judge This observation is crucial as it breaks the back of the judge s reasoning in the court below Having found the nodule to be a scar the judge went on to discredit all the experts who disagreed with him We found ourselves unable to agree with this method of reasoning To follow it would be to surreptitiously import into Bolam by the back door a practice of adjudicating between medical experts on a balance of probabilities We do not think Bolam should be thus emasculated in content and application The judge s finding of fact should accordingly have had little direct influence on the question of medical standards Experts 72 A brief introduction of the medical experts is in order before we consider their testimonies Gunapathy summoned four experts to prove her case comprising two neurosurgeons Dr Prem Pillay and Dr Gopal Baratham a radiation oncologist Dr Tsao Shiu Ying and a neuropathologist Dr Jennifer Teo The trial judge additionally called Dr Tan the radiologist who took both MRI scans to present herself as the plaintiff s witness The defendant doctors in turn called six experts They comprised three neurosurgeons Prof Bengt Karlsson Dr Ho Kee Hang and Dr Yeo Tseng Tsai two radiation oncologists Dr Robert Smee and Dr Chua Eu Tiong and a neuroradiologist Dr Francis Hui 73 We do not intend to chronicle the voluminous contents of expert testimony in this case As we have stated from the outset all we are required to do under Bolam is to consider whether the views of the medical experts were logical not whether one was superior to the other As such the discussion which follows will limit itself only to examining those aspects of expert evidence relevant to the threshold test of logic 74 We also note that counsel in this appeal have made submissions savaging the creditworthiness of the medical experts on the opposing side an approach no doubt engendered by the critical nature of the judge s decision We are nonetheless unimpressed by such invitations to compare and evaluate the relative skill and experience of local and foreign experts alike Having reviewed the evidence we found that the experts on the whole were all competent and professional in their testimony The divergence in their views reflected the innate and genuine intractability of the medical issues involved and in no way impinged on their honesty or integrity Moreover in resolving this appeal we found it necessary only to examine the logical basis of their opinions and not the medical skill of the expert We found it difficult enough to assess the medical arguments without having to also adjudge the skill of its proponent Diagnosis 75 The crux of the case was whether the doctors diagnosis that the nodule was a tumour rather than a scar was supported by a respectable body of medical opinion For reasons we have made clear we do not find it necessary to reexamine the judge s own finding of fact as to the nature of the nodule That was very much in the nature of a red herring as far as the Bolam test was concerned The crucial question was whether the unanimous view of the defendants experts that the nodule was a tumour was founded on the basis of cogent logic 76 As a preliminary point it must be explained how a scar could actually be confused with a tumour The description of a scar did not refer to a twodimensional imprint on the roof of the ventricle It was really shorthand for a three dimensional stump that represented the remains of a portion of the original tumour presumably destroyed by radiotherapy In the words of the judge If a part of the stem is left behind and the remnant is irradiated the irradiation will in all probability put an end to mitosis cell division if there was any If there is no mitosis there should be no re growth of the remnant In any event the remnant will remain and not disappear An analogy is the stump of a cut or felled tree which has been exposed to intense heat Like the stump the necrotic remnant will roughly retain the original shape 77 A perusal of the evidence relating to whether the nodule was a scar or a tumour reveals two key factors at work The first is whether there was any growth in the size of the nodule and the second the histological nature of the original resected tumour We shall deal with each factor in turn 78 The issue of growth appears to be the litmus test of whether the nodule was a scar or a tumour Put simply a scar consisting of necrotic remnant tissue should not change in size Conversely a tumour by definition would exhibit signs of growth The evidence relating to growth was to be found in three scans taken of Gunapathy s brain namely the February 1996 and December 1996 MRI scans as well as the image reconstructed with the XKnife machine taken just before the operation in January 1997 Dr Tan did not make a measurement in the first February 1996 MRI scan She however measured the lesion in the December 1996 MRI scan to be 12mm x 11mm x 6mm Dr Khoo and Dr Khor in the January 1997 reconstruction measured the longest diameter of the nodule to be 19mm 79 A complex body of argument subsequently arose over the three brain scans The issue of growth or the lack of it was extremely controversial and hotly disputed for the following reasons 80 Firstly the assumption that growth in the nodule was indicative of it being a tumour did not pass unchallenged Dr Chua Eu Tiong the local radiation oncologist called by the defence stated that the size of a scar could increase or decrease over months or years In his view any increase in the size of the nodule could therefore also be consistent with a scar increasing in size He further noted that this process would only stop when it reached maturity which could take between one to two years 81 Secondly the reading of MRI scans is an interpretative and therefore inexact science The process requires a radiologist to piece together a three dimensional image from two dimensional slices of the brain Each slice is scanned progressively in intervals with equal distance between each interval The process is conducted along three planes sagittal axial and coronal In piecing the image together the radiologist would first have to identify which part of each MRI slice represented an irregular feature He would then stack these scans together in three dimensions to obtain a mental view of the irregularity From this analysis he would be able to measure with calipers the largest dimension of the tumour along each of the three planes This process understandably requires considerable expertise It suffices to say that a simple perusal of the scans leaves the layman with little clue as to the site of the nodule much less its three dimensional size or form when all the slices are stacked together in the mind The interpretative differential is compounded by the problem that the nodule did not have a defined border As such Dr Francis Hui the defence s neuroradiologist estimated that a margin of error of about 2mm would have to be given either way to any reading derived from the MRI scans 82 The third difficulty was that the comparison of scans taken at different times was difficult due to the change in variables and conditions The two MRI scans for example were taken at different intervals of length In the February 1996 MRI scan film the images were taken at 5mm intervals Each image or slice captured a thickness of 4mm and skipped an interval of 1mm before the next cross section of 4mm thickness was taken In the December 1996 scan films the slices were taken at 6 5mm intervals each slice was 5mm thick with an interval between the slices of 1 5mm wide This problem was compounded by the fact that various factors would inevitably change between two scanning sessions For example the position or angle of the patient s head the type of dye used for purposes of enhancement the patient s renal function and the relative position and enhancement of other brain structures would differ between scans These obstacles made a comparison of the scans all the more difficult 83 The difficulty of comparison was further compounded when the January 1997 reconstruction on the XKnife computer came into consideration This reconstruction was based on MRI and CT scans taken of the patient just before the operation and fused in the computer The MRI scans which went into this image were actually more detailed than the previous ones they captured finer slices of 3mm with no skip between each slice However the trial judge found the 1997 reconstruction to be inaccurate and of little evidential value He considered them a derivative product of scans which were unfortunately no longer available for verification He also found the image to be reshaped and somewhat magnified by the XKnife software Additionally he thought that the measurement was subject to the way in which the neurosurgeon had marked out the tumour on the XKnife monitor in the first place In this vein Dr Pillay the plaintiff s neurosurgeon noted that surgeons tended to include a slight margin around the tumour to ensure that the radiosurgery would cover the entire tumour Finally Dr Tan pointed out the greatest difficulty in comparing the two dimensional MRI scans with the three dimensional XKnife reconstruction She noted that the 19mm measurement derived from a truly three dimensional image represented the maximum length of the lesion in any one plane Conversely her measurement of 11mm x 12mm x 6mm from the December 1996 MRI scan had to be based strictly on the three planes along which the brain was sliced by the MRI scans In her view the 19mm measurement was therefore not conclusive either way on the issue of growth of the tumour between December 1996 and January 1997 84 Naturally the appellants contended that the 1997 reconstruction was convincing proof of growth of the nodule They submitted that despite the different variables mentioned above the images could be compared with each other by using fixed structures of brain as reference points They also pointed out that the purported margin of error on the XKnife computer would be nullified as it applied to the MRI scan as well since both required human input to determine the actual border of the tumour They further argued that there was no basis to say that the software distorted the image Conversely they submitted that the 1997 reconstruction was in fact superior because the computer in assembling the three dimensional image eradicated the element of human error inherent in mentally stacking the MRI scans 85 The matter is further complicated when we turn to the fourth difficulty which was that the indications of growth did not derive from measurements alone An area of contrast enhancement in the scan could also be indicative of the spread of a tumour Dr Tan had noted in her December 1996 report that there was a new area of enhancement around the brain parenchyma adjacent to the nodule However she did not find this indicative of growth and discounted it as explicable by other factors Contrast enhancement is non specific You can see it in a variety of situations If the patient has an infection if the patient has a tumour if the patient has a scar from previous surgery or maybe a head injury or something like that So it s a non specific finding Now the degree of enhancement that you will see will vary with the amount of contrast that was given the speed at which it was given and the time between the administration of the contrast and the acquisition of the image OK and how bright it looks on an image will depend on some degree on how the image has been taken For the contrast as you would adjust an image on a television screen for instance to make it slightly bright or slightly darker 86 Dr Francis Hui the defence s neuroradiologist expert did not write off the evidence of enhancement so readily He thought it indicated a growth of the tumour as the enhancement in contrast was not based on mere observation of the nodule but on the relative contrast between the nodule and other normal structures of the brain This countered Dr Tan s explanation that the difference was explicable by the brightness captured on the film In Dr Hui s words I had checked the two scans in February and December and there is a difference in the intensity of the enhancement and I take into consideration the fact that overall enhancement is higher than the December enhancement but that is taken into consideration already and I compensate for that and I think in spite of that I can see other structures for example these are structures called the choroids plexus these are parts of the brain in the ventricles that will enhance after intravenous contrast So I see the degree of enhancement of the choroids plexus for example Then I see the degree of enhancement of the nodule and I see the difference in the enhancement and if we can see in the films there is a definite difference in the enhancement of the nodule when you compare it with the enhancement of the choroids plexus for example and that s the basis why I say that the enhancement is significant 87 Given the above difficulties it was not surprising that the experts on both sides came to a plethora of conclusions as to the size of the nodule The defence experts all agreed that there was growth in the tumour but gave differing figures of its final size ranging from 14mm to 19mm Even the plaintiff s experts acknowledged a larger tumour size than that estimated by Dr Tan For instance Dr Tsao Shui Ying a radiation oncologist appearing for the plaintiff had found the maximum size of the nodule to be 14mm while Dr Pillay took the view that it was 15mm 88 We now turn to the second clue as to the nature of the nodule that of the histology of the original neurocytoma The trial judge thought that a benign tumour such as a neurocytoma could not have recurred so soon and grown to such an extent within a short period of time In the first place he found it unlikely that a low grade tumour would have even survived surgical excision and postoperative radiotherapy treatment where a total dosage of 54Gy of radiation had been administered in 27 treatments over 39 days Accordingly he thought that the histological evidence pointed to the nodule being a scar 89 The doctors rejoinder was that the tumour while histologically benign in theory could in practice prove to be clinically aggressive This view was strongly supported by Prof Karlsson who said that neurosurgeons would rather rely on observations of tumour activity than a pathological report based on previous cell samples we in our practice rely less and less on pathological report with previous cells and analysis of dead cells We d rather want to look how the tumour actually acts and reacts in reality which means looking at scans If a pathologist tells me this is a very benign lesion and the tumour grows aggressively which it did not do in this case then of course I cannot say the pathologist says it s benign I do nothing I need to rely on reality which in my mind is better defined by the scans So I think we must be very careful when we make judgments on pathology alone because most laymen believe that is the truth because you see the cells but you see dead cells you don t see actually how they act and re act It is a piece of information no question but that must be judged together with other pieces of information 90 The limits of histology were acknowledged by Dr Jennifer Teo the plaintiff s expert on histopathology She conceded that even low grade tumours could react unexpectedly I totally agree with you that brain tumours cannot be called benign or malignant because no matter how low grade a tumour is there will be case reports of tumours which don t or so called low grade tumours which behave in an unexpected aggressive fashion 91 The radiation oncologists called by the defence further acknowledged the unpredictability of neurocytomas Dr Chua Eu Tiong agreed that there was a discrepancy between the histological and clinical manifestations of neurocytoma Although a neurocytoma was a low grade tumour it had the potential to kill the patient if it continued to grow Dr Robert Smee the New South Wales doctor who had conducted the training course for the XKnife system likewise took the view that although neurocytomas could be regarded as histologically benign their behaviour was variable He referred to a collected series of cases which revealed that twenty five percent of those diagnosed with neurocytoma had actually died within ten years 92 Several extracts from the medical literature available before us also cast doubt on the benign nature of the neurocytoma In MG Yasargil et al Central Neurocytoma Histopathological Variants and Therapeutic Approaches 1992 the authors stated Observations of anaplastic variants of this neoplasm in two cases and local tumor recurrences in three indicate that the biological behaviour and post operative prognosis of central neurocytoma may not always be as favourable as previously assumed the possibility that standard histopathological analysis underestimates the potential for regrowth of central neurocytomas cannot be excluded In K Ashkan et al Benign Central Neurocytoma A Double Misnomer 2000 the authors had this to say about the nature of the neurocytoma Aggressive behavior characterized by clinical and radiologic evidence of tumor progression was noted in two additional patients In both these cases unusually high proliferation rates of 5 3 and 11 2 were noted Total excision of the tumor when possible was the treatment of choice Post operative radiotherapy to the residual tumor may be of benefit in patients with clinically aggressive tumors or those with high proliferation rates CONCLUSIONS Given the findings of this study it is suggested that the traditional concept of central neurocytoma as a benign intraventricular tumor warrants reconsideration 93 In the light of the above evidence it becomes immediately apparent that the diagnosis of a tumour of the brain was a difficult and imprecise science The reading of brain scans was very much an interpretative art which depended on the viewpoint of the individual expert The histology of the previous tumour was likewise an inconclusive guide as to the possibility of its recurrence These seemed to us to be issues over which respectable medical experts could legitimately differ and precisely the kind of situation for which Bolam precludes judicial adjudication The judge need only ask if such a view could be logically held by the experts In this respect only two questions commend themselves to the judicial mind First did the defence experts address the relevant countervailing factors in coming to their conclusion Second was the conclusion of the experts defensible in the sense that it was internally consistent and did not controvert known external facts 94 Applying the Bolam test we disagreed with the trial judge and came to the conclusion that there was a respectable body of medical opinion which would have diagnosed the nodule as a tumour The defence experts had assessed the scans available prior to the radiosurgery procedure and had addressed their minds to the mechanics behind the interpretation of such scans Dr Hui in particular had given cogent and consistent reasons why the 1997 reconstruction could when compared with the MRI scans be indicative of growth of the nodule This explanation

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  • Ch.20 The Law of Negligence
    Singapore International Mediation Centre Singapore Mediation Centre Singapore Chamber of Maritime Arbitration ADR Publications Laws of Singapore Overview Commercial Law Case Law Cases in Articles Free Law Arbitration Cases Statutes Singapore Law Watch Headline News Commentaries Judgments Legislation Notices Directions Continuing Legal Education Resources Media Press Releases Speeches Publications Online References Sample Clauses Directory of Law Practices Latest Singapore Rankings Events Upcoming Events Archive Events Archive 2013 Events Archive 2012 Laws of Singapore Commercial Law Ch 20 The Law of Negligence Case Law Case Law Subcategories Arbitration Cases Cases in Articles Free Law Commercial Law Ch 08 The Law of Contract Ch 09 Domestic Sale of Goods Ch 10 International Sale of Goods Ch 11 The Law of Credit and Security Ch 12 Intellectual Property Law Ch 13 Intellectual Property Licensing Ch 14 Forms of Business Organisations Ch 15 Law of Agency Ch 16 Singapore Company Law Ch 17 Corporate Finance and Securities Regulation Ch 18 Equity and Trusts Ch 19 Restitution Ch 20 The Law of Negligence 01 Introduction 02 Duty of Care Tests for Establishing Duty 03 Duty of Care Special Situations 04 Breach of Duty 05 Causation of Damage 06 Remoteness of Damage 07 Defences to Negligence

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  • Ch.20 The Law of Negligence
    for sale which came to an end in 1973 and b a subsidiary activity of letting out flats The Comptroller however argued that the surplus arising from the sale of the six flats was a trading receipt since ME was carrying on the business of property development and that the flats were constructed in the course of such business The appeal before the Board was dismissed and ME appealed against the Boardà â â s decision Held dismissing the appeal ME could only succeed if it could show that the Board either misdirected themselves on the law or proceeded without sufficient evidence in law to justify their conclusion On the evidence there was sufficient evidence for the Board to reach the conclusion they did Case s referred to ABC v Comptroller of Income Tax 1959 MLJ 162 refd Bowie v Reg Dunn Builders 49 TC 469 refd Bradshaw v Blunden 36 TC 397 refd CBH v Comptroller of Income Tax 1982 1 MLJ 112 refd CIR v Reinhold 34 TC 389 refd Commissioners of Inland Revenue v Hyndland Investment Co Ltd 14 TC 694 refd Edwards v Bairstow 1955 36 TC 207 refd Gloucester Railway Carriage and Wagon Co v CIR 12 TC 720 refd Granville Building Co v Oxby 35 TC 245 refd Gray Gillitt v Tiley 26 TC 80 refd Harvey v Caulcott 33 TC 159 refd International Investments v Comptroller General of Inland Revenue 1975 2 MLJ 208 FC 1979 1 MLJ 4 refd James Hobson Sons v Newall 37 TC 609 refd Oliver v Farnsworth 37 TC 51 refd Orchard Parks v Pogson 1964 42 TC 442 refd Seaward v Varty 40 TC 523 refd Shadford v H Fairweather Co 43 TC 291 refd Simmons v IRC 1980 2 All ER 798 refd STU v Comptroller of Income Tax 1962 MLJ 220 refd Turner v Last 42 TC 517 refd West v Phillips 38 TC 203 refd WM Robb v Page 47 TC 465 refd Please note that this case has not been edited in accordance with the current Singapore Law Reports house style Chan Sek Keong JC 1 This is an appeal against the decision of the Income Tax Board of Review the Board dismissing the appeal of the appellant against the additional assessment made by the Comptroller of Income Tax the Comptroller for the year of assessment 1981 on the surplus resulting from the disposal of six flats which were together with 53 other flats developed by the appellants during 1971 1973 The surplus was 2 093 387 and the additional tax assessed was 857 770 2 Before the Board the following facts were agreed between the parties 1 The appellant was incorporated on 8 July 1970 2 The appellant on 28 September 1970 resolved to ratify a purchase of a piece of land known as 26 27 Mount Elizabeth the property for 852 006 3 By 31 December 1970 the purchase had been completed with funds substantially from its share capital 4 The appellant immediately proceeded to develop a block of high rise apartments on the property known as à â ËoeHighpointà â â 5 The sale of the flats commenced in 1971 6 The paid up capital of the appellant was increased to 1 5m in 1971 7 The development of Highpoint was financed largely by shareholdersà â â funds loans from a related company and progress payments from purchasers 8 Of the 50 apartments constructed 51 were sold between 1971 and 1973 and eight were retained by the appellant 9 Six of the retained flats were sold in 1980 10 In 1973 the appellant made two further purchases of land a land at Draycott Drive Lot 12 103 for 1 771 974 88 and b land at Farrer Holland Road for 5 111 106 00 11 Development expenditure was incurred in respect of these two sites and planning approval was obtained for the construction of 23 units of luxurious apartments on the Draycott site 12 In 1980 the appellant sold the Farrer Holland Road property The profit from the sale was subject to tax 3 In addition to the agreed facts the following facts which are relevant to this appeal are disclosed in the agreed bundle of documents submitted to the Board 4 These facts are as follows a The relevant objects of the appellant as set out in its memorandum of association are 3 1 To acquire by purchase lease exchange hire or otherwise lands and property of any tenure or any interest in the same in Singapore 2 To erect and construct houses buildings or works of every description on any land of the company or upon any other lands or property à â  and generally to deal with and improve the property of the company 13 To develop and turn to account any land acquired or in which the company is interested and in particular by laying out and preparing the same for building purposes constructing decorating maintaining furnishing fitting up improving altering pulling down and re erecting or reconstructing buildings and by planting paving draining farming cultivating letting on building lease or building agreement and by advancing money to and entering into contracts and arrangements of an kinds with buildings tenants and others 27 a To carry on all or any of the businesses of proprietors of flats maisonettes dwelling houses shops offices and clubs and for these purposes to purchase take on lease or otherwise acquire and hold any lands or buildings of any tenure or description wherever situate or rights or interests thereon or connected therewithà â  b The financial year of the appellant ended on 31 December of each year The directorsà â â report the directorsà â â report to the audited accounts of the appellant for the financial year 1970 stated inter alia that à â ËoeThe company is engaged in the construction of a block of luxury flats which is expected to be completed and ready for occupation in 1973 à â â In the accompanying balance sheet the property was classified as and under the item à â ËoeDevelopment Projectà â â c Each of the directorsà â â reports for the financial years 1971 to 1973 stated inter alia that the appellantà â â s à â Ëoeprincipal activity is the development and construction of luxury apartments for sale There has been no change in the nature of this activity during the yearà â â In the relative balance sheets the freehold land was classified as and under the item à â ËoeDevelopment Projectà â â d In each of the directorsà â â report for the financial years 1974 and 1975 the description of the companyà â â s activity was the same as for 1971 to 1973 except for the omission of the word principal but in the related balance sheets a new item appeared under the classification à â ËoeFixed Assetsà â â It is common ground that the fixed assets referred to were the eight Highpoint flats which were retained by the appellant e In each of the directorsà â â reports for the financial years 1976 to 1981 the description of the activities of the company was à â Ëoeproperty development and the holding of property for rentalà â â It further stated that à â Ëoeduring the year the company did not undertake any property development but rented out its apartments held for investment There have been no changes in the nature of these activities during the yearà â â The eight flats continued to be classified in each of the relative balance sheets as à â ËoeFixed Assetsà â â f By a letter dated 24 May 1974 the appellantà â â s solicitors informed the Controller of Housing that all the flats in Highpoint had been sold except for eight flats which the appellant was not selling à â Ëoeas they would like to let out these flatsà â â By a letter dated 18 February 1975 the appellant informed the Controller of Housing that it had deliberately withheld the sale of some apartments which à â Ëoewe intend to retain for investment purposesà â â By a letter dated 23 August 1975 the appellant again informed the Controller of Housing that eight flats were being retained by it but this letter did not offer the additional information that the eight flats were retained for the purpose of investment g On 27 November 1981 the Comptroller made an additional assessment for the year of assessment 1981 against the appellant in respect of the profits derived from the sale of six of the eight Highpoint flats On 4 November 1981 the appellant through its solicitors wrote to the Comptroller and objected to the additional assessment the ground that the amount of 2 093 387 being the surplus from the sale of six flats was a capital receipt and liable to tax The ground of objection as set out in para 3 of the letter reads as follows It is not denied that our clients were in fact a developer However that does not make every property that it owns a current asset The accounts bear this out If you would look at the balance sheet and accounts for the period ending 31 December 1974 and onwards you would quite clearly notice the two holdings are separately reflected by our clients in the accounts Since 1974 these properties were always reflected as fixed assets In support of this objection copies of the appellantà â â s correspondence with and returns made to the Controller of Housing were enclosed in the said letter h By a letter dated 15 December 1981 the Comptroller requested the appellant to state the reasons for the sale of the six Highpoint flats when it had claimed that the six flats were retained for investment By a letter dated 22 December 1981 the solicitors for the appellant replied that every investment had to be reviewed occasionally as to whether or not the continued holding of it was still relevant in terms of the investment objective and that in 1980 the appellant felt that the sudden upsurge in the prices of its investment did not justify its continued retention and hence decided to sell the six flats i By a letter dated 3 April 1982 the appellantà â â s solicitors furnished to the Comptroller particulars of the rental history of the six flats which showed that three flats had been rented out continuously from 1974 to 1980 and three flats had been rented out continuously from 1975 to 1980 j The income derived from the letting of the eight flats for each of the relevant years had been assessed to tax under s 10 1 a of the Income Tax Act on the basis that it was part of trading profits and not investment income and no objection was raised by the appellant to each of the said assessments 5 At the hearing of the appeal to the Board the appellant called Mr Lim Chor Pee AW1 an advocate and solicitor who was also a director of the appellant from 1970 to 1978 to testify His evidence was as follows a In 1970 he was instructed by an Indonesian businessman Jauw Hin Liang Jan Darmadi Darmadi to act for him in the purchase of the property on which he wanted to build a block of apartments for sale and investment AW1 advised Darmadi to form a limited liability company to carry out his objective and so the appellant was incorporated on 8 July 1970 for that purpose Darmadi was in effect the owner of the appellant The completion of the purchase in December 1970 was substantially financed from shareholdersà â â funds Construction commenced in 1971 and the sales of the flats commenced in 1971 after the appellant obtained a developerà â â s licence AW1 also said that à â ËoeShortly after Darmadi bought the property for Mt Elizabeth he told me he did not want to sell all the flats He specifically instructed me to keep the two penthouses for himself and to retain eight apartments à â â The Highpoint development was largely self financed Darmadi was not worried about additional funding even though all the flats were not sold in 1971 Part of the funding came from progress payments As at 31 February 1972 the appellant had repaid its small bank overdraft and any shortfall in funding the development if any was financed by borrowings from a related company There was at that stage no external borrowing The Farrer Road and Draycott Drive projects which were purchased in 1973 were financed by loans from a related company The appellant did not have a proper sales office until the show room in Highpoint was built The sales office was closed in 1973 The appellant stopped selling the Highpoint flats after mid 1973 The total profit before tax or the sale of 51 Highpoint flats amounted to 982 826 Darmadi himself purchased the two penthouses when the flats were ready for occupation The temporary occupation licence for Highpoint was issued in 1974 AW1 arranged for the eight flats to be furnished for letting but eventually seven were let out fully furnished and one was let out unfurnished The appellant spent a considerable sum of money in furnishing the seven flats AW1 maintained that this was in keeping with the appellantà â â s intention to keep them No attempt was made to sell the eight flats until 1980 when six were sold The six flats were sold in 1980 because in 1980 Darmadi made a business decision to sell off all or most of his assets in Singapore Pursuant to that he also sold the Farrer Road property in 1980 and the Draycott Drive property in 1981 The properties then retained by the appellant were two flats in Highpoint and the house in Brizay Park b In cross examination AW1 said the Brizay Park house was not sold in 1980 because a director of the appellant one Eddy Dharma was living in it the property having been purchased for that purpose When asked why Darmadi did not purchase the eight flats in addition to the two penthouses AW1 said that the penthouses were for Darmadià â â s personal use he had no intention to let them out or sell them the eight flats were for earning a rental income and as far as Darmadi was concerned he looked upon the appellant as his personal company AW1 also said that the eight flats were chosen at random that he did not know why eight and not ten were chosen He agreed that flats 30D E and F would fetch a slightly lower price because of their poor location but denied that they were retained because the appellant could not sell them He said that flats 30A B and C which had the worst views had been sold and that after the sales office was closed there were people badgering the appellant to sell When asked whether if the appellant had wanted to retain the flats for rental it would have made more sense to choose the better flats AW1 replied No it does not because the rental difference between an apartment with a better than poorer view is very small a couple of hundred dollars at most Since Darmadi did not specify whether he wanted to retain the apartments with the best views and left the discretion to me I was of the view that we should sell off the most expensive flats in order to make a bigger profit for the company AW1 denied a suggestion that the eight flats were not retained for long term investment but were let out pending the time they could fetch better prices He insisted that his instructions were not to sell the eight flats at all He went on to say The profits at that time were not very great from this development Darmadi was at that time making a lot of money in Indonesia and he was not interested in making a few thousand dollars here and there In fact the profits he made from this development he never draw at all He instead pumped more money into the company AW1 admitted that neither the appellant nor its directors had pasted any corporate resolution to retain the eight flats or to sell them He admitted that the appellant had used a sales brochure in the marketing of the Highpoint flats He admitted that he understood the directorsà â â reports before he signed them and when asked whether the statements therein were accurate statements of the appellantà â â s intention and activities at that time AW1 said the directorsà â â reports could not set out every intention of the appellant and that ideally and theoretically a directorsà â â report should have been more comprehensive AW1 also said that the expression à â Ëoefor investment purposesà â â meant to let out and earn a rental income for an unspecified period of time and in this case Darmadi had wanted to keep the flats forever 6 Before the Board counsel for the appellant contended that the surplus on the sale of the six flats was a capital accretion on the ground that the appellantà â â s intention from the start was to develop some flats for sale and to retain some flats for investment and that the appellant was carrying on two activities 1 the principal activity of property development for sale which came to an end in 1973 and 2 a subsidiary activity of letting out flats It was contended that the appellantà â â s intention was borne out by the following facts a the appellant had little external borrowing and therefore was under no financial pressure to sell b the appellant did not have any trading activity from 1973 to 1980 and even though many subsales of the other flats were transacted during this period c the categorical statements consistently made to the Controller of Housing that the eight flats were being retained as investment long before any tax ramifications arose d the appellant had furnished the flats at considerable cost e the flats were consistently treated as à â Ëoefixed assetsà â â in the audited accounts of the appellant since 1974 and taxed as such 7 The following cases were cited by counsel for the appellant to the Board CIR v Reinhold 34 TC 389 Bradshaw v Blunder 36 TC 397 Harvey v Caulcott 33 TC 159 West v Phillips 38 TC 203 Seaward v Varty 40 TC 523 International Investments v Controller General of Inland Revenue 1975 2 MLJ 208 1979 1MLJ 4 8 Counsel for the Comptroller contended that the surplus arising from the sale of the six flats was a trading receipt on the ground that the appellant was carrying on business of property development that property development meant property development for sale and that the Highpoint flats were constructed in the course of such business She contended that such a conclusion was supported by the following facts a the appellant by a letter dated 4 January 1971 informed the Comptroller that the business conducted by the appellant was property development b each of the directorsà â â reports from 1971 to 1974 stated that the development and construction of luxury apartments for sale was either its principal activity or sole activity c there was no corporate resolution to retain the eight flats as investment d during the construction of the flats no distinction was made in the appellantà â â s accounts between those units to be sold and those to be retained e the eight flats were builderà â â s remainders as they could not be sold on account of their poor location or alternatively the appellantà â â s intention was to sell them at a later but more favourable opportunity f the classification of the eight flats as à â Ëoefixed assetsà â â in the appellantà â â s balance sheets as from 1974 was not conclusive against the Comptroller and was selfserving g the letting of the flats for six years before sale was irrelevant in the case of a property developer and did not change their character as trading stock h the Comptroller had always treated the rents as part of trading receipts of property development without any objection from the appellant 9 Counsel also contended that the onus of proof was on the appellant to show that the profits arising from the sale of the flats were profits from the sale of investments and that such onus was greater on a company than on an individual 10 The following cases were cited by counsel for the Comptroller to the Board Harvey v Caulcott 33 TC 159 Granville Building Co v Oxby 35 TC 245 James Hobson Sons v Newall 37 TC 609 Shadford v H Fairweather Co 43 TC 291 Bowie v Reg Dunn Builders 49 TC 469 Gray Gillitt v Tiley 26 TC 80 Turner v Last 42 TC 517 Oliver v Farnsworth 37 TC 51 WM Robb v Page 47 TC 465 Orchard Parks v Pogson 1964 42 TC 442 Gloucester Railway Carriage and Wagon Co v CIR 12 TC 720 11 After receiving written submissions from both counsel on the cases cited by each of them the Board delivered its written judgment on 8 April 1985 The Board found that the appellant was carrying on the business of property development for sale and that the Highpoint flats were constructed for sale in the course of such business The grounds on which the Board supported its finding were a the appellant had been incorporated solely for the purpose of purchasing the property at Mount Elizabeth and developing the flats thereon in question b the absence of any resolution regarding the retention of the flats in question c Darmadi had intended to retain the eight flats until such time as they could fetch a better price the grounds for this finding being that i AW1 had said that the profits from the development were not very great and that Darmadi was making a lot of money in Indonesia and was not interested in making a few thousand dollars here and there and ii otherwise Darmadi would have purchased the eight flats in the same way as he had purchased the two penthouses d the appellantà â â s acceptance of the Comptrollerà â â s treatment of its rental income as trading profits and all the other evidence showed that the treatment by the appellant of the eight flats as fixed assets from 1974 onwards and the retention of and letting out of the flats for six years did not indicate the true nature of their retention e all the circumstances surrounding the development of the Highpoint flats 12 The Board was of the view that the appellant had not discharged the onus of proving that the profits in question arose from the sale of an investment and not from trading stock Accordingly the Board dismissed the appeal 13 The appellant now appeals against the decision of the Board on the ground that the Board was wrong in law and in fact in holding that the six retained flats were trading stock and that the surplus derived on their disposal was part of the trading profits of the appellant Counsel for the appellant submitted that the Boardà â â s finding was made without any or adequate evidence to support it or if there was evidence the finding was an inference from primary facts and as such an appellate court could in an appropriate case draw a contrary inference and he urged me to do so It was said that the primary facts relied on which the Board were equally capable of supporting a finding of and the Board should have found a dual or composite intention on the part of the appellant He referred to the locus classicus on this point of law ie the judgment of Lord Radcliffe in Edwards v Bairstow Harrison 1955 36 TC 207 and also the judgment of Lord Wilberforce in Simmons v IRC 1982 1 MLJ 112 Counsel also said that the Board had also failed to deal specifically with other relevant facts before them which were favourable to the appellantà â â s case 14 It was contended that the Board failed to give any or inadequate consideration or insufficient weight to or draw the correct inferences from the facts set out in para 6 of this judgment and from the following facts a the expression à â ËoeProperty Developmentà â â used to describe the appellantà â â s business in its letter dated 14 April 1971 was neutral as the purpose of development could be for sale or for investment or for both likewise the expression à â Ëoethe construction of a block of luxury flatsà â â as used in the directorsà â â report for the financial year 1970 b also the use of the adjective à â Ëoeprincipalà â â to qualify the activity of the appellant in the directorsà â â report for the financial years 1971 to 1973 implied or was not inconsistent with the appellant carrying on a subsidiary activity of holding property for investment c that it was neither realistic nor practicable for the appellant to specifically distinguish in its audited accounts those flats for sale and those for investment until the flats had been completed whereupon the appellant had aptly classified them as fixed assets and that the expression à â ËoeDevelopment Projectà â â a neutral expression was also an apt description of the development at that stage d that the classification of the eight flats as fixed assets in the balance sheets from 1974 onwards negatived any adverse inference that could be drawn from the absence of any corporate resolution regarding their retention e that the appellantà â â s omission to object to the assessments of rental income as part of its trading receipts might have been due firstly to the futility of so doing since the Comptroller was not under the law required to specify the sources of income in his notice of assessment à â âEUR see ABC v The Comptroller of Income Tax 1959 MLJ 162 or secondly to the superfluity of so doing since the rate of tax for investment income and trading income was the same 15 It was further contended that the Boardà â â s omnibus reference to à â Ëoecircumstances surrounding the developmentà â â was clear and therefore unsatisfactory that their finding that if Darmadi had intended to retain the flats as investment he would have purchased them from the appellant was an incorrect hypothesis and that the Boardà â â s finding that à â Ëoethe flats had been retained until such time when they could fetch a better price since according to Lim à â Å the property market started to move after 1974à â  à â â made no sense because if I understood the argument correctly it was not possible to say what a better price was and what such time in the future was for determining such better price 16 Finally counsel contended that as the evidence adduced by the appellant was not seriously challenged or controverted by the Comptroller the appellant had discharged the onus which he conceded was higher on it than on an individual of proving that the profit in question was a capital receipt 17 In the context of Lord Radcliffeà â â s speech in Edwards v Bairstow Harrison 1955 36 TC 207 and the Court of Appealà â â s decision in CBH v Comptroller of Income Tax 1982 1 MLJ 112 CA as to the test an appellate body must apply in hearing an appeal of this nature the submissions of counsel for the applicant can be distilled and encapsulated into one contention and that is the Board erred in law in that no reasonable body of members constituting an Income Tax Review Board could have reached the findings reached by the Board in this instance When the appellantà â â s appeal is reduced to this dimension it becomes apparent that in this appeal the appellant has a heavy burden to discharge before achieving lift off Clearly the Board had ample evidence before them to make the findings they did Although in their written judgment the Board might not have addressed each of the appellantà â â s submissions they have dealt specifically with the main points and pointedly said they had taken into account all the other circumstances Whilst counsel for the appellant may justifiably criticise the Boardà â â s faulty reasoning that if Darmadi had intended to retain the eight flats as an investment he would have purchased them in his own name it could not be said that the finding itself ie of Darmadià â â s intention was wrong as it was supported by an alternative but valid ground ie Darmadià â â s disinterest in making small money from the development which ground the Board in fact also relied upon Again the Board might not have made a microscopic appraisal of AWlà â â s evidence on the original intention of Darmadi but their primary finding was an implicit rejection of AW1à â â s evidence on this point 18 What was the tenor of the undisputed facts relied on by the appellant Except for the oral evidence of AW1 on Darmadià â â s intention substantially all the other material facts that were garnered in aid of the appellantà â â s case were colourless facts There facts were 1 the retention of eight flats for six years à â âEUR see Oliver v Farnsworth 37 TC 51 sale proceeds of house built by builder in 1929 and sold in 1953 held to be trading receipt James Hobson Sons v Newall where houses built by company were not saleable and let for almost 24 years held that houses were part of trading stock 2 the statements to the Controller of Housing that eight flats were retained as investments and the classification of eight flats as à â ËoeFixed Assetsà â â in balance sheets of appellant from 1974 to 1981 à â âEUR see Shadford v Fairweather Co 43 TC 291 land purchased in 1958 by company and described as fixed asset in its accounts sold in 1960 held a trading transaction Bowie HM Taxes v Reg Dunn Builders 49 TC 469 property held by company a builder since date of purchase in 1958 as a fixed asset in its accounts until 1966 when it was sold held a trading asset WM Robb v Page 47 TC 465 property shown in accounts as a fixed asset for the years 1952 to 1962 held a trading asset 3 the statements in directorsà â â reports for the financial years 1976 to 1981 that the appellantà â â s activities were property development and the holding of property for rental à â âEUR see authorities referred to in 2 above 4 the memorandum of association had as one of its objects the business of proprietors of flats à â âEUR see WM Robb v Page where there was a similar object clause and Commissioners of Inland Revenue v Hyndland Investment Co 14 TC 694 where Lord President Clyde said in relation to a memorandum of association which had as one of its objects the acquisition of land and the holding of the same as an investment that the question was not what business the taxpayer professed to carry on but what business he actually carried on 5 the furnishing of the seven flats at considerable expense for letting à â âEUR see West v Phillips 38 TC 203 207 where Wynn Parry J said at p 214 in relation to houses built for investment that redecoration making ready for sale and advertising for sale were colourless facts in that they do not change the character of such houses to stock in trade 6 the appellant did not have external borrowings for the Highpoint development and therefore was under no financial pressure to sell the eight flats 19 In contrast there was a considerable body of evidence before the Board which pointed in the direction of the appellant being a property developer for sale ie 1 the incorporation of a company to purchase the property for development of luxury flats and the appellant applying for a developerà â â s licence for sale 2 the appellant describing its business as property development itself as a property developer and describing its principal activity from 1971 to 1973 and its only activity from 1974 to 1975 as being the development and construction of luxury apartments for sale 3 the omission of the appellant to document in its records as soon as practicable its alleged intention to retain part of the Highpoint development for investment 4 the omission of the appellant to distinguish in its accounts or its sales brochure between the flats to be sold and the eight flats to be retained for investment until after the other 51 units had already been sold 5 the omission of the appellant to object to rental income of the eight flats being assessed as part of its trading profits 20 These facts were prima facie in favour of the Comptrollerà â â s case and it is not surprising that the Board found against the appellant in reliance primarily on them and at the same time regarded the neutral facts referred to earlier as being wholly consistent with the appellantà â â s intention to carry on the business of property development for sale and no other 21 Counsel for the appellant referred me to a passage in the judgment of Tan Ah Tah J in STU v Comptroller of Income Tax 1962 MLJ 220 which he said was applicable to the appellantà â â s circumstances Mr Tan J at p 221 said In this case certain explanations given by the appellant to the officers of the Income Tax Department were rejected on the ground that there was no documentary evidence to support them No doubt documentary evidence can in many cases be very cogent and convincing The lack of it however should not invariably be a reason for rejecting an explanation Not every transaction is accompanied or supported by documentary evidence Much depends on the facts and circumstances of the case but if the person who is giving the explanation appears to be worthy of credit does not reveal any inconsistency and there is nothing improbable in the explanation it can in my view be accepted 22 I need to say no more than that the explanations of the appellant had been considered and rejected both by the Comptroller and the Board 23 I have so far not touched upon the arguments of counsel for the Comptroller advanced before me not out of any disrespect to her but because they were substantially the same as those advanced before the Board I need only take note of her additional argument that the appellant could only succeed in its appeal by showing that the Board had either misdirected themselves on the law or had proceeded without sufficient evidence in law to justify their conclusion see CBH v Comptroller of Income Tax 1982 1 MLJ 112 24 I have carefully considered the Boardà â â s decision and the criticisms made against it by counsel for the appellant In my view not only was there sufficient evidence for the Board to reach the conclusion it did there was also other evidence which the Board could have relied upon or drawn inferences therefrom

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  • D'€™Conceicao Jeanie Doris (administratrix of the estate of Milakov Steven, deceased) v Tong Ming Chuan[2011] SGHC 193
    whereas an operation on Day 3 and beyond places the patient in the late group of intervention In this clinical situation Dr Tong s decision to proceed with the redo CABG was reasonable emphasis added 100 The court was also referred to a Journal of Thoracic and Cardiovascular Surgery article entitled Optimal timing of coronary artery bypass after acute myocardial infarction A review of California discharge data note 32 The article documented a study by John Hopkins Medical Institution which suggested that mortality risk for CABGs dropped notably three days after an AMI On the totality of the evidence I find that the risk of a further AMI was a significant factor that Dr Tong rightly considered in his decision to recommend the redo CABG Issue 1f The significance of MS s improvement after his AMI as a factor in Dr Tong s decision to recommend the redo CABG 101 The plaintiff argued that the improvement of MS s health condition subsequent to his AMI on 9 March 2007 meant that the redo CABG could be delayed However the defence countered with the alternative perspective that the recovery instead gave a window of opportunity to go ahead with the redo CABG and this advantage had to be weighed in the balance Dr Tong stated in cross examination Q Dr Tong if at all his improving health provided Mr Milakov with a window of opportunity to delay the surgery A Also a window of opportunity to operate on him emphasis added note 33 In a similar vein Dr Sin stated the following paradox in cross examination A Secondly it also goes to show that when you give a patient risk when the patient is relatively well say paradoxically you don t have chest pain and hence in this score your risk becomes low and hence when you don t have symptoms and I say paradoxically because when you don t have symptoms I tell you you should have the operation because the risk is low When you get symptoms your risk goes up and then paradoxically I tell you because you have symptoms your risk has now gone up Do I then conclude should I do the operation or should I not do the operation based on risk or symptoms You can t base it on one single factor You have to take the entirety and look at the patient as a whole emphasis added note 34 102 Therefore while the improvement which MS made after his AMI might be a reason to postpone the redo CABG I accepted that it was reasonable to take the view that this might equally be a reason to proceed with the surgery since MS s improved condition meant that he was more likely to survive the redo CABG operation Dr Tong also submitted that even if MS did not suffer a subsequent AMI which would kill him he might suffer another MACE which would further reduce cardiac function and close the window for a redo CABG note 35 I understood this to mean that if this opportunity afforded by MS s improved health condition was not taken to proceed with the redo CABG there was no guarantee that it would still be available later Issue 1g The significance of the rarity of MS s medical situation as a factor in Dr Tong s decision to recommend the redo CABG 103 The plaintiff argued that a redo CABG in the nature of what MS underwent was extremely rare for two reasons which I have termed the two proximities in time i the proximity in time between the initial CABG and the redo CABG about 7 weeks ii the proximity in time between the AMI and the redo CABG three days Indeed Prof Buxton stated that in his 30 years of practice he had done only one redo CABG within six weeks of the initial CABG He further stated that in this one case the patient had not also just suffered an AMI as was the situation in MS s case note 36 Dr Sin also conceded that he had never encountered a patient in MS s situation note 37 However he elaborated that although it was unusual for a patient to have a redo CABG so soon after the initial CABG it was not unusual to have re do operations within six weeks of open heart surgery and some operations were even deliberately staggered in that way because the patients were deemed to be high risk cases 104 It can be seen that it is extremely rare for a patient to undergo a redo CABG where there is a coincidence of the two proximities Even so I find that the fact of rarity of a redo CABG in such circumstances should not be given undue weight The reason for such rarity might be due to the reluctance of reasonable surgeons to proceed in the face of the increased risks which could support a finding of a breach of duty or might be due to the rarity of the coincidence of the two proximities in themselves in which case it might be argued that a redo CABG in such circumstances amounted to a desperate measure to treat a desperate situation 105 As stated above the plaintiff s case essentially boiled down to the assertion that reasonable surgeons in Dr Tong s position would have recognised that the risks involved in undergoing the redo CABG outweighed the benefits which MS would have received In 1921 Frank Hyneman Knight Knight published a book entitled Risk Uncertainty and Profit He shared an insight which I find helpful to the present analysis Knight drew a distinction between risks outcomes with defined probability distributions and uncertainties outcomes with undefined probability distributions In other words we know our odds when it comes to risks but we do not when it comes to uncertainties To my mind MS faced a risk when it came to proceeding with the redo CABG because the doctors could try to quantify the probabilities of things going wrong However when it came to declining the redo CABG he faced an uncertainty As noted earlier MS was akin to a ticking time bomb with an unknown detonation time At the end of the trial I asked Dr Sin what MS s odds were if he were to decline the redo CABG COURT I m looking at it very simplistically Assuming I m a patient you are telling me this is a risky operation et cetera My question to you is what if I asked you the other part of the equation Supposing I don t do it what are my chances of survival Is a surgeon able to answer that part of the question A No it is very difficult to answer and a lot of patients ask that very same question and my standard answer is that I don t have a crystal ball I can t predict your future and in that sense I can sympathise with the patient when he says I m between a rock and a hard place because as a surgeon I m also feeling in that position Whatever way I choose there are equally bad potential outcomes but I think at the end of the day as long as that s explained to the patient his options and the potential outcomes in either option and he decides on which course of action being informed in that regard that is my duty emphasis added note 38 106 I find the question of MS chances of survival without going ahead with the redo CABG simply an imponderable The plaintiff s experts who said that MS should not have gone ahead with the redo CABG candidly accepted that a subsequent AMI might happen out of the blue It was common ground that MS had severe coronary artery disease and it was thus not uncontroversial that a subsequent AMI might well have killed him The plaintiff s experts did not put a figure to the chances of that happening and I take it that they could not If they could put forward such a figure and show it to be significantly lower than the risk MS faced in undergoing the redo CABG then Dr Tong would have breached his duty to MS However it is precisely on medical imponderables such as the present question that the medical community is allowed to have legitimate disagreements without interference by the judiciary By definition it is impossible to calculate imponderables and as stated at Gunapathy at 3 We often enough tell doctors not to play god it seems only fair that similarly judges and lawyers should not play at being doctors 107 It must be emphasised that the plaintiff bears the burden of showing that the view held by Dr Tong was illogical To this end the plaintiff noted that one of Dr Tong s own experts Prof Buxton stated that he would not have done the redo CABG himself A I think an aggressive group of surgeons and there s quite a lot of surgeons who are aggressive would do that There s a group of surgeons who would perhaps go in relatively early after three or four days which is the major risk over and secondly perhaps during that time maybe consider a further test I think it s possible yeah Q Dr Buxton do I understand from your evidence that if you were faced with such a patient you would not have carried out a surgery so soon A That would be my view but I m not I can t speak for every surgeon emphasis added note 39 However it is clear that Prof Buxton was of the opinion that there was a sizeable group of surgeons who would have operated as Dr Tong did and while he characterised them as aggressive that adjective is quite distinct from illogical 108 The plaintiff then relied on the following excerpt from Gunapathy at 65 and submitted that since Prof Buxton would not have proceeded with the redo CABG himself his medical opinion was not internally consistent and should be rejected To our minds a defensible conclusion connotes the satisfaction of two concepts First the medical opinion must be internally consistent on its face It must make cogent sense as a whole such that no part of the opinion contradicts with another A doctor cannot say for example that he supports a certain approach and attest that in that very situation he would nevertheless have done quite the opposite emphasis added 109 With respect I think that is a misreading of Gunapathy The fact that a doctor acknowledges the practice of one group of doctors while stating that he would have opted for a different course does not of itself cause his opinion to become inconsistent The correct position in my view is that an expert can provide evidence of what practices are accepted as proper by a responsible body of medical men by stating his view of what he believes other doctors would have done even if he would not himself have adopted that course This is supported by the case of Sharpe v Southend HA 1997 8 Med LR in which Cresswell J stated at 303 col 2 An expert witness should make it clear in his her report if it be the case that although the expert would have adopted a different approach practice he she accepts that the approach practice adopted by the defendant was in accordance with the approach practice accepted as proper by a responsible body of practitioners skilled in the relevant field Had this guideline been followed in the present case it is likely that the allegations against Professor Souhami would not have been advanced in the first place as opposed to being withdrawn in the plaintiff s counsel s final speech 110 Therefore applying the Bolam test and after considering the evidence and arguments presented by both sides I find that Dr Tong was not negligent in recommending that MS undergo the redo CABG because he had acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art I also find that the medical opinions supporting Dr Tong were held on a logical basis and satisfy the Bolitho test In so finding I find it apposite to recall this passage from Lord Diplock s speech in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital 1985 AC 871 Sidaway at 893 Those members of the public who seek medical or surgical aid would be badly served by the adoption of any legal principle that would confine the doctor to some long established well tried method of treatment only although its past record of success might be small if he wanted to be confident that he would not run the risk of being held liable in negligence simply because he tried some more modern treatment and by some unavoidable mischance it failed to heal but did some harm to the patient This would encourage defensive medicine with a vengeance The merit of the Bolam test is that the criterion of the duty of care owed by a doctor to his patient is whether he has acted in accordance with a practice accepted as proper by a body of responsible and skilled medical opinion There may be a number of different practices which satisfy this criterion at any particular time These practices are likely to alter with advances in medical knowledge Of course a redo CABG could not be considered more modern treatment but the point is that the court should not bind doctors to conservative approaches in medicine as this would ultimately be to the detriment of patients Otherwise there might be a chilling effect on the prescription of more aggressive and or interventional procedures even if these are reasonably thought to be in the best interests of the patient 111 It remains for me to make an observation that the plaintiff appeared to have been given notice that Dr Tong would adopt an aggressive medical approach before she consulted him This surfaced when the plaintiff was cross examined regarding the advice given to her by Dr Christopher Chew Q At what stage did Dr Chew inform you that he would seek the advice of a cardiothoracic surgeon A When we were actually in the high dependency unit HDU I actually came out of the HDU to meet because I think other than family no one is allowed really in the HDU apart from the medical personnel and Steve s colleague Brent Fish had when he was informed that this had happened so I came out of the HDU to meet him and while we were talking outside of the HDU because he couldn t go in Dr Chew came out of door and that s when we were standing kind of like in the corridor you know so to speak and at that point in time we asked him you know What are the next steps I m using this very loosely of course He said There are two options One is for conservative medical therapy and the other one is to refer a surgeon At which time he also told me well he told us when a surgeon is introduced a surgeon would usually like to operate because that s how it is Okay So that s what he said to us and he said Those are the two options He said With conservative medical therapy obviously some of the possible consequences could be some more heart attacks myocardial infarct and at the same time it could be also fatal emphasis added note 40 The answer in italics could imply that as a surgeon Dr Tong was inclined to operate whatever the circumstances and thus did not properly consider MS s suitability for the redo CABG and did not properly consider the non surgical options of OMT and PCI thus failing to meet the standard of care expected of him However I find that if the plaintiff had indeed understood Dr Christopher Chew s statement to mean that Dr Tong would perform the surgery regardless of the circumstances and consequences she would not have proceeded to consult Dr Tong I believe that the plaintiff went ahead to consult Dr Tong with MS knowing that Dr Tong s approach would be aggressive and surgery oriented yet believing that this was within accepted medical practice and a course which MS should explore 112 Having gone through the foregoing sub issues and making the findings that I have made I accordingly find that Dr Tong did not breach the tortious and contractual duties of care he owed to MS in his recommendation of the redo CABG as a treatment option for MS Issue 2 Whether Dr Tong breached the tortious and contractual duties of care he owed to MS in advising MS regarding the redo CABG The applicability of Bolam to the issue of advice 113 The Court of Appeal in Gunapathy also considered the issue of the applicability of the Bolam test to advice noting the different views taken on this issue in Sidaway The ratio of Sidaway is not easy to determine as each of the judges appeared to be taking slightly differing stances on the applicability of Bolam One commentator has thus stated that much rests on the subsequent interpretation of the case Jonathan Herring Medical Law and Ethics OUPS 2 nd Ed p 150 114 In Gunapathy the Court s interpretation of Sidaway was as follows Yong CJ noted the dissenting view of Lord Scarman that Bolam only applied to diagnosis and treatment and not advice Yong CJ then pointed out that the majority of the House in Sidaway parted company with Lord Scarman on this issue Lord Diplock in the majority stated at 893 that the doctor s duty of care was not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply such as diagnosis treatment and advice A doctor s decision as to what risks a patient should be warned of was stated to be as much an exercise of professional skill and judgment as any other part of the doctor s comprehensive duty of care at 895 Therefore Lord Diplock opined that no convincing reason has been advanced that would justify treating the Bolam test as doing anything less than laying down a principle of English law that is comprehensive and applicable to every aspect of the duty of care at 893 In Gunapathy at 137 the court noted that Lord Diplock had entrenched the application of Bolam to advice in no uncertain terms Lord Templeman was stated to have effectively supported the Bolam test even though he did not make specific reference to the test Gunapathy at 138 Yong CJ went on to state at 141 that it was clear that Lord Bridge with whom Lord Keith agreed did not agree with Lord Scarman s dissenting view that it was for the court to determine what material risks a prudent patient was entitled to receive 115 However Yong CJ noted that Lord Bridge did carve a qualification into the Bolam test The question of advice and risk disclosure should not be abdicated entirely to the medical profession Yong CJ observed at 141 that Lord Bridge took the view that if a risk was substantial and there was no cogent clinical reason why disclosure should not be made the judge was at liberty to conclude that no respectable medical expert would have failed to make it This was seen by the Court of Appeal to be a forerunner to the more general qualification made by Bolitho Gunapathy at 141 116 The Court of Appeal made clear that it rejected the trial judge s unwarranted at 134 interpretation of Sidaway as declining the view that the Bolam test applied to the issue of medical advice see 142 However the court also clarified that it was not providing a conclusive ruling on the doctrine of informed consent since that issue was not fully vented in that case 142 We would emphasise that this is not the appropriate place to address a fully argued appeal on the merits of a doctrine of informed consent The issue did not arise in the submissions before us and we would not pronounce on it as such We however feel compelled to address the judge s inexplicable assumption that Bolam had been unceremoniously evicted from the issue of medical advice and to make the observation that were this argument ever to arise in our jurisdiction it would find Sidaway 57 supra to be somewhat shaky ground on which to stand Nevertheless what is important for the present purposes is that the Court of Appeal went on to affirm that the Bolam test applied to the issue of advice at 143 143 Accordingly in affirming that the Bolam test applied to the issue of advice in the present appeal we found that the defendant doctors disclosure of the relevant percentage risks of radiosurgery was supported by a respectable body of medical opinion They had not given negligent advice to Gunapathy emphasis added The plaintiff s proposed test for the issue of advice 117 While counsel for the plaintiff appears to accept that Bolam subject to the Bolitho caveat applied to advice his submission of what the Bolitho threshold of logic entails might result in a departure from the Bolam test in effect According to the plaintiff if the doctor failed to communicate a significant risk to the patient before carrying out the recommended treatment this would fail to meet the Bolitho threshold of logic and such a failure would be tantamount to the conduct being illogical irresponsible or unreasonable and thus amount to a breach of the doctor s duty of care 118 The plaintiff derived this argument from what she saw as the English approach of using Bolitho as providing sufficient ammunition to the courts to scrutinise and find liability even when Dr Tong attempted to adduce evidence that his practice conforms to the practice of a respectable body of practitioners To illustrate this the plaintiff referred to the decision in Pearce v United Bristol Healthcare NHS Trust 1999 ECC 167 Pearce where Lord Woolf held at 21 In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment it seems to me to be the law as indicated in the cases to which I have just referred that if there is a significant risk which would affect the judgment of a reasonable patient then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt emphasis added 119 The plaintiff noted that Pearce was characterised by some commentators as being closer to the reasonable patient test in the Australian case of Rogers v Whitaker 1992 175 CLR 479 Rogers than to the traditional English approach which focuses on the reasonable doctor or more accurately a responsible body of medical opinion Jackson Powell at paragraph 13 091 In Rogers the High Court of Australia departed from the Bolam test at least in respect of the duty to advise in favour of the approach of the Supreme Court of Canada in Reibl v Hughes 1980 114 DLR 3d 1 holding at 490 that a doctor had a duty to warn his patient of the material risks inherent in the proposed medical treatment A risk was material if in the circumstances of the case i a reasonable person in the patient s position if warned of the risk would be likely to attach significance to it or ii if the medical practitioner is or should be reasonably aware that the particular patient if warned of the risk would be likely to attach significance to it 120 Later in Rosenberg v Percival 2001 205 CLR 434 the High Court of Australia affirmed Rogers and reiterated that Australian law had moved away from the Bolam test in respect of the issue of advice The plaintiff went on to note that the position adopted in Australia had found favour with the Malaysian courts and referred to Foo Fio Na v Dr Soo Fook Mun and Anor 2007 1 MLJ 593 Foo Fio Na where the Federal Court of Malaysia endorsed the Rogers approach in preference to the Bolam test 121 The defence submitted that the plaintiff s reliance on the cases from other jurisdictions which showed a movement away from Bolam in respect of the issue of advice was misguided for the following reasons First some of the key authorities relied on by the plaintiff had already been expressly rejected by the Singapore High Court in Surender Singh per Lai Siu Chiu J on account that it was bound by the Court of Appeal decision in Gunapathy 152 In recent times however the Bolam approach has come under fire in several jurisdictions most notably in Australia and Canada In Rogers the High Court of Australia explicitly rejected Bolam at least in relation to the duty of disclosure and advice in favour of the approach of the Supreme Court of Canada in Reibl v Hughes 1980 114 DLR 3d 1 Recent Malaysian decisions have also followed the Australian approach and in Foo Fio Na the Federal Court finally rejected Bolam preferring Rogers as the applicable test for assessing all forms of medical negligence 153 However the law as it stands in Singapore and that which will be applied in this judgment is Gunapathy s case the Court then proceeded to read key paragraphs of Gunapathy which have been set out earlier in this judgment emphasising that the applicable test is the Bolam test as qualified by the Bolitho test of logic emphasis added 122 Second the highest the plaintiff had put her case was that there appeared to be a reluctance in the English courts in more recent years to apply Bolam and the majority view in Sidaway However the defence noted that in Pearce the court had expressly applied Sidaway In this regard I also observed that notwithstanding his language which appeared to lean towards defining liability by reference to the reasonable patient Lord Woolf expressly accepted as law at 18 a passage of Lord Templeman s speech in Sidaway which emphasised the problems of providing a patient with too much information Lord Templeman did not adopt quite the same approach as either Lord Scarman or the majority but his speech is particularly relied upon by Mr Richardson I bear that in mind but I would merely refer to one short passage at page 904 If the doctor making a balanced judgment advises the patient to submit to the operation the patient is entitled to reject that advice for reasons which are rational or irrational or for no reason The duty of the doctor in these circumstances subject to his overriding duty to have regard to the best interests of the patient is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment A patient may make an unbalanced judgment because he is deprived of adequate information A patient may also make an unbalanced judgment if he is provided with too much information and is made aware of possibilities which he is not capable of assessing because of his lack of medical training his prejudices or his personality While recognising that Lord Templeman s approach is not precisely that of the majority it seems to me that that statement of Lord Templeman does reflect the law and does not involve taking a different view from the majority emphasis added 123 Further although cases like Chester v Afshar 2005 1 AC 134 Chester suggested that the perspective of a reasonable patient should be adopted this case did not assist the plaintiff Chester was a case on causation and not the duty and standards of advice and the comments on the standard of care were thus obiter Even so it must be remembered that Bolitho was also a case on causation and the important obiter remarks have been widely accepted as supplementing the Bolam test on breach of duty More pertinently the comments in Chester may not be applicable in Singapore as the judgment s emphasis on human rights and autonomy might be attributed to the binding effect of the European Convention of Human Rights on the English courts pursuant to the Human Rights Act 1998 which Singapore is not bound by 124 The plaintiff s characterisation of the threshold of logic looks like an attempt to abolish Bolam s applicability to the issue of advice This is at odds with the Court of Appeal s decision in Gunapathy which makes it clear that the Bolam and Bolitho jurisprudence applies to the issue of advice Gunapathy is binding on me I do agree with the plaintiff that if the medical profession illogically omits to warn of certain risks which patients should undoubtedly be informed of then the court should interfere on the authority of Bolitho In this regard I turn to a passage from the speech of Lord Bridge in Sidaway at 900 where he was one of the majority judges But even in a case where as here no expert witness in the relevant medical field condemns the non disclosure as being in conflict with accepted and responsible medical practice I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences as for example the ten per cent risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes 114 D L R 3d 1 In such a case in the absence of some cogent clinical reason why the patient should not be informed a doctor recognising and respecting his patient s right of decision could hardly fail to appreciate the necessity for an appropriate warning emphasis added Lord Bridge went on to find for the defendant accepting the evidence of the medical experts Sub issues relating to the pre operative advice given by Dr Tong to MS regarding the redo CABG 125 As stated earlier the doctor s duty of care is comprehensive and all references to the duty to advise are to be understood in light of the comprehensive duty It is trite law that before a doctor performs procedures on a patient the patient should be advised on his medical condition alternative treatment options the nature of the treatment options and the respective benefits risks and possible complications of each treatment option 126 The plaintiff s written submissions concentrate on the advice given on i the mortality and morbidity risks of the redo CABG and ii whether MS was informed that his improving health provided him with an option to postpone The plaintiff has highlighted several specific issues which she argues should have been communicated to MS and these are tabulated as follows Nature of advice The plaintiff s position a Risk of mortality in percentage terms This is a significant matter concerning risk assessment that ought to have been communicated to MS No advice was given to MS on this Moreover Dr Tong s estimate of a 3 mortality risk was not a reasonable figure as it was too low b Risk of mortality The risk of mortality associated with a redo CABG is a significant risk that ought to have been communicated to MS No advice was given to MS on mortality risk at all c Risk of morbidity The risk of all the serious morbidities ought to have been communicated to MS Dr Tong only advised MS on the risk of bleeding small risk of stroke and possibility of the re occlusion of grafts d Risk in undergoing a redo CABG so soon after an initial CABG and in the immediate aftermath of an AMI This risk ought to have been specifically communicated to MS No advice was given to MS on this The very recent AMI still posed a significant risk which ought to have been communicated to MS No advice was given to MS on this e The option to postpone the redo CABG on account of MS s improving health The redo CABG was very risky on the account of its timing and MS ought to have been informed of the significance of his improving health and that it provided him with an opportunity to delay the surgery No advice was given to MS on this 127 It is pertinent to make three preliminary points First as noted it was not disputed that MS signed a consent form on 11 March 2007 prior to the redo CABG However the mere signing of a form in itself did not show that Dr Tong had not breached his duty to advise MS 128 Second there is generally no requirement for doctors to explain risks which an average person is ordinarily aware of or which the particular patient has knowledge of pre existing knowledge See the Saskatchewan first instance decision of Haughian v Paine 1986 CarswellSask 184 overruled but not on this point Once the patient understands certain information there may be no further need for the doctor to provide the self same information Therefore the standard of advice which the doctor should provide to his patient differs according to the pre existing knowledge of the patient However Dr Tong would have breached his duty if he had not given MS any advice on the nature of a redo CABG its risks and alternatives but assumed that MS had this information simply because he had recently undergone the initial CABG In cross examination the plaintiff accepted that it was a fair assumption that Dr Tong did take steps to ascertain with MS that MS understood the risks and complications of a CABG Q I have to press this point with you because it appears from the notes that there were far more than your affidavit statement cares go into My suggestion to you is that at these discussions at which many of them you were not present options were given to Steve risks were discussed the procedure of CABG was discussed in detail not just once but several times and he had the opportunity with several doctors not just Dr Tong so my suggestion you is that Steve was well aware of the options he was well aware of the risk that CABG entailed and he knew what he was signing up for when he decided to proceed with the surgery isn t that correct A Yes that s a fair assumption emphasis added note 41 However while a redo CABG and the initial CABG follow the same procedure the risks of a redo CABG are higher and this is not disputed by Dr Tong The plaintiff claims that Dr Tong had a duty to advise MS on the higher mortality and morbidity risks of the redo CABG 129 The third issue also pertains to the pre existing knowledge of the patient in a situation where a patient is attended to by a team of medical personnel Once a member of the team advises the patient of certain information and the

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