1 The plaintiff in this action, Feida Bus Consortium Pte Ltd (“Plaintiff”), is the lessee of a property at No 6 Sungei Kadut Way (“Property”). ¹ Sited within the Property are several adjoining buildings, including a warehouse (“Warehouse”) which the Plaintiff rented to the defendant in this action, Royal Autoz Exporter Pte Ltd (“Defendant”).

2 This case arose from a fire that broke out at the Warehouse while it was tenanted by the Defendant. The Plaintiff alleged that the Defendant breached its duties in both contract and tort by, inter alia, (a) causing the fire and (b) failing to prevent its spread. The Plaintiff thus commenced the present action against the Defendant seeking damages for the destruction caused by the fire. ² The Defendant counterclaimed against the Plaintiff for the losses that it suffered from the fire, alleging that the Plaintiff breached its duty in both contract and tort by failing to properly maintain a hose reel in the Warehouse. It was the Defendant’s case that no water came out from the hose reel, resulting in the inability to extinguish the blaze.

3 After having heard the evidence at trial, I dismissed both the Plaintiff’s claim (save for an amount of $814, in respect of which the claim was allowed) and the Defendant’s counterclaim. My reasons for doing so are set out below.

4 The Plaintiff is in the business of providing chartered bus services and conducting repair and maintenance of motor vehicles. ³ At all material times, its sole director was one Goh Bock Sin (“Goh”). ⁴ Goh was also the sole director of two other companies, E K Ang Trading and Transportation Pte Ltd (“E K Ang”) and Goh Transport Services Company Pte Ltd (“Goh Transport”), both of which also occupied the Property. ⁵ The Defendant is in the business of purchasing deregistered vehicles, with a view to either exporting them or scrapping them for parts which it then sells. ⁶ Since 2017, the Defendant’s operations were overseen by one Gabir Nabil Abdel Moaty Ahmed (“Gabir”). ⁷

5 The Property’s built area was divided into four sections: A, B, C and D. A simplified plan of the sections is set out below:

(a) Section A was a two-level compound occupied by the Plaintiff, with the lower level used for the Plaintiff’s vehicle maintenance and repair business and the upper level used as offices by the Plaintiff and Goh’s other companies. ¹⁰

(b) Section B was the Warehouse that was tenanted to the Defendant – the red circle denotes the spot where the fire started. ¹¹

(c) Section C was another warehouse which, at the time of the fire, had been rented by the Plaintiff to another company. ¹²

(d) Section D was a dormitory which, according to the Plaintiff, housed workers of the Plaintiff, E K Ang and Goh Transport. ¹³

6 The Warehouse was rented by the Defendant from the Plaintiff pursuant to a Tenancy Agreement dated 24 March 2020 (“Tenancy Agreement”) which was signed by Goh (on behalf of the Plaintiff) and Gabir (on behalf of the Defendant). ¹⁴ The Tenancy Agreement stipulated a monthly rent of $15,000. It also specified that the tenancy would commence on 1 April 2020, ¹⁵ but omitted to specify the exact duration of the tenancy. The Plaintiff contended that it was implied that the Tenancy Agreement was either for a 12-month duration or was a monthly tenancy, ¹⁶ although this was not material to the key issues in dispute.

7 Barely two weeks after the signing of the Tenancy Agreement, the Singapore Government implemented the “Circuit Breaker” measure under the Covid-19 (Temporary Measures) (Control Order) Regulations 2020. ¹⁷ The Circuit Breaker, which lasted from 7 April 2020 to 1 June 2021, imposed restrictions on (amongst other things) activities conducted within non-residential premises. ¹⁸ Specifically, no work could be carried out by workers in workshops and factories during this period. On 4 May 2024, after the Circuit Breaker restrictions had been in place for about four weeks, the Defendant towed a deregistered yellow 2.4 litre Chery Tiggo ¹⁹ car (“Chery Car”) into the Warehouse, where the Chery Car remained for the next 19 days. ²⁰

8 On 23 May 2020, the fire broke out. It is not in dispute that the fire originated from the Chery Car. That evening, the Defendant’s employees, including one Ganapathy Vaithiyanathan (“Ganapathy”) and one Mani, were present at the Warehouse. ²¹ Also present was another resident of the dormitory, Mayavel Asaithambi (“Mayavel”). A key point of dispute in this case centred on what these men were doing in the Warehouse that evening:

(a) The Plaintiff alleged that at the time the fire started, the Defendant’s employees (it was the Plaintiff’s case that Mayavel, like Ganapathy and Mani, was also an employee of the Defendant) were working either on the Chery Car or near it. The Plaintiff claimed that this had escalated the risk of, and ultimately started, the fire. ²²

(b) The Defendant maintained that its employees were there that evening merely to take possession of deregistered vehicles delivered to the Property and bring the same into the Warehouse for storage. ²³ The Defendant also clarified that Mayavel was not its employee. ²⁴

9 At about 6.30pm, Ganapathy spotted flames underneath the Chery Car’s engine. ²⁵ He responded by using a forklift to elevate the Chery Car. ²⁶ Mayavel pulled a fire hose from a reel sited within the Warehouse, with a view to spraying the fire burning beneath the Chery Car which had been hoisted off the ground. ²⁷ The hose reel was yet another focal point of contention:

(a) The Defendant claimed that no water came out of the hose when Mayavel tried to turn it on. ²⁸

(b) The Plaintiff claimed that the hose was working and that Mayavel was jetting the fire with water from the hose. ²⁹

10 When the Chery Car was lifted, flammable liquid started leaking out of it. The liquid ignited as it leaked, causing the fire to spread. ³⁰ Ganapathy ultimately had to abandon the forklift. Various workers on the Property came running out with fire extinguishers to join the fight against the fire. They included one Zhang Jinhai, a mechanic working for E K Ang. ³¹ According to the Defendant, Mani also came running out with a fire extinguisher to fight the fire. ³² Despite everyone’s efforts, the fire engulfed the entire Chery Car and continued to spread, forcing those present to flee the Warehouse.

11 Eventually, a crew from the Singapore Civil Defence Force (“SCDF”) arrived at the scene and put the fire out. ³³

12 The diagram below, which has been expanded from section B of the plan at [5] above, illustrates the layout (albeit not to scale) of the Warehouse and its contents as at the point of the fire: ³⁴

The red circle denotes the Chery Car, with the forklift to its left. Although some of the vehicles have been portrayed as a single vehicle in the diagram, they may have comprised multiple vehicles, with one stacked on top of the other, while some of the other vehicles (including the Chery Car) stood alone without any vehicles stacked on top.

13 The Chery Car, which had toppled off the forklift and landed on its side during the fire, was badly burnt, while the forklift suffered severe thermal damage. ³⁵ The fire also caused damage to the Defendant’s stock of deregistered vehicles and spare parts stored within the Warehouse. ³⁶ As for the losses sustained by the Plaintiff, the Statement of Claim alleged that the fire damaged various parts of the Property’s structure, including: ³⁷ (a) the Warehouse’s roof, structure and fittings as well as its electrical wirings, (b) the roof of the other warehouse at section C in the plan at [5] above and (c) the Property’s water piping system. A photograph of the aftermath of the fire is attached below: ³⁸

14 After the fire was put out, a site inspection revealed the following:

(a) Several spent fire extinguishers which had been used to fight the fire were found near the forklift ³⁹ – these can be seen in the photograph above.

(b) Some tools were found next to the forklift and the Chery Car. From the photographs taken at the site, these tools included what appeared to be a drill powered either by batteries or compressed air, a windy wrench with attachments, what looked possibly like an electrical drill with a drill bit, as well as an aerosol cannister which possibly contained lubricant. ⁴⁰ A photograph of the tools is attached below:

15 On 26 May 2020, the Commissioner of Building Control served a closure order requiring the Plaintiff to close the Property, on account of the fire having left the Property in a condition that was (or was likely to be) dangerous. ⁴¹ The closure order was lifted almost 18 months later, after repairs were done. ⁴²

16 In the wake of the fire, SCDF conducted investigations in which it interviewed Gabir, Ganapathy and Mayavel. Their responses were captured in a fire investigation report dated 14 September 2023 that SCDF issued (“SCDF’s Report”). ⁴³

17 The Plaintiff’s fire insurance company, Etiqa Insurance Pte Ltd, engaged a forensic firm, Envista Forensics Pte Ltd (“Envista”), to determine the origin and cause of the fire. The technical consultant from Envista fielding the inquiry was one Kirk Cheam Tat Chuan (“Mr Cheam”). Mr Cheam’s inspections of the Property, which commenced about five days after the fire and lasted until the middle of June 2020, ⁴⁴ culminated in a fire investigation report dated 23 September 2020 (“Mr Cheam’s 1st Report”). ⁴⁵ Thereafter, the Plaintiff approached Envista to act as its expert in this trial. Envista agreed and commissioned Mr Cheam to prepare an expert report for purposes of trial. ⁴⁶ To that end, Mr Cheam prepared a second report dated 13 March 2024 (“Mr Cheam’s 2nd Report”). ⁴⁷

18 The Defendant, on its part, engaged fire investigation consultant Adrian Brown (“Mr Brown”) from Andrew Moore & Associates (Singapore) Pte Ltd as the defence expert. Unlike Mr Cheam, who conducted a site inspection of the Property shortly after the fire, Mr Brown based his analysis on the photographs in the reports issued by SCDF and Mr Cheam. ⁴⁸ Mr Brown prepared an expert report dated 25 March 2024 (“Mr Brown’s Report”). ⁴⁹

19 On 11 February 2022, the Plaintiff commenced the present action against the Defendant. Broadly, the Plaintiff’s claims fell under two prongs: (a) contractually, the Defendant breached various express and implied terms of the Tenancy Agreement; ⁵⁰ and (b) in tort, the Defendant was negligent, having breached its duty of care to prevent both the start and the spread of the fire. ⁵¹ Underlying these claims was the Plaintiff’s position that the Defendant:

(a) caused the fire when its employees performed works either on the Chery Car or near it (see [8] above); and

(b) failed to curb the spread of the fire.

20 The Defendant denied that its employees were working in the Warehouse at the time of the fire. Rather, it claimed that they were at the Warehouse merely to take possession of deregistered vehicles being delivered to the Property that evening and bring them into the Warehouse for storage (see [8] above). The Defendant maintained that its employees could not have been performing any works on the vehicles in the Warehouse at the time as the Circuit Breaker measures were still in force – any such works, being easily detectable, would have ended in severe penalties. As regards the failure to prevent the spread of the fire, the Defendant maintained that it did have the appropriate fire extinguishers to fight the fire ⁵² and suggested that efforts to put out the fire failed only because no water came out of the hose when Mayavel attempted to turn it on (see [9] above).

21 The allegedly faulty hose, which was sited within the compounds of the Warehouse, ⁵³ in turn formed the basis of the Defendant’s counterclaim. The Defendant contended that the Plaintiff (as the landlord) was under a duty in both contract and tort to properly maintain the hose reel and ensure that it worked. ⁵⁴ The Defendant alleged that the hose malfunctioned because of the Plaintiff’s breach of this duty. The Defendant thus counterclaimed for losses which it suffered from the fire, alleging that the fire – and consequently the losses caused by the fire – could have been ameliorated if the hose reel had worked. ⁵⁵ The Plaintiff, on its part, denied the counterclaim, insisting that the hose did discharge water during the fire (see [9] above). The Plaintiff also suggested that efforts to fight the fire failed because this was a fire fuelled by petrol, such that hosing the fire with water had the counterproductive effect of spreading the flames. ⁵⁶

22 These grounds will first deal with the Plaintiff’s claim in contract, followed by its claim in tort, before finally addressing the Defendant’s counterclaim.

23 The Plaintiff alleged that the Defendant breached both the express and implied terms of the Tenancy Agreement.

(a) As regards the express terms, the relevant clauses of the Tenancy Agreement alleged to have been breached by the Defendant are set out below: ⁵⁷

(b) The Plaintiff also contended that the following terms ought to be implied into the Tenancy Agreement:

(i) The Defendant shall not permit or allow any combustible or flammable liquids at the Warehouse. ⁵⁸

(ii) The Defendant must not carry out activities, or store/keep any liquids, chemicals or other materials that would cause a fire hazard. ⁵⁹

(iii) The Defendant must have proper firefighting equipment and materials at the Warehouse at all material times during the tenancy term. ⁶⁰

(iv) During the tenancy term, the Defendant must insure the Warehouse against fire and any other risks for its own goods and property in the Warehouse. ⁶¹

(v) The Defendant must have insurance coverage for all risks and/or public liability insurance to indemnify the Plaintiff and other tenants or persons at the property for all damages and losses arising from any acts of negligence of the Defendant’s servants, agent, licensees or invitees. ⁶²

The Plaintiff claimed that the Defendant breached these implied terms. ⁶³

24 The Plaintiff’s submissions on breach of contract were difficult to follow, in that the Plaintiff failed to link each term within the hodgepodge of express and implied terms above with the specific act or omission of the Defendant which allegedly breached that term. To facilitate the mapping of the relevant express or implied term with the allegedly infringing behaviour, it was necessary to first categorise the contractual terms (both express and implied) alleged to have been breached. To that end, I have divided the terms listed at [23] above under three broad headings:

(a) Terms on the permitted uses of the Warehouse.

(b) Terms on the implementation of adequate fire safety measures.

(c) Other terms (such as procurement of insurance and payment of stamp duty).

The assessment of the Plaintiff’s claims for breach of contract, laid out in the following sections, will follow the sequence of the three headings above.

25 The permitted uses of the Warehouse were encapsulated in cll 2, 11 and 13 of the Tenancy Agreement (above at [13]). For ease of reading, these clauses are reproduced below:

26 Over and above these express terms, the Plaintiff contended that the Tenancy Agreement contained implied terms on the permitted uses of the Warehouse, specifically those set out at [23(b)(i)] and [23(b)(ii)] above prohibiting the Defendant from having any fire-hazardous materials or conducting any fire-hazardous activities within the Warehouse.

27 These grounds first deal with each of the express terms which the Plaintiff alleged to have been breached, followed by the purported implied terms governing the permitted uses of the Warehouse.

28 Clause 2 of the Tenancy Agreement stated that the Warehouse “shall be used for purpose of vehicle spare parts and bodv kit” [emphasis added]. In claiming that the Defendant breached this clause, the Plaintiff pleaded: ⁶⁴

It was undisputed that the Defendant did use the Warehouse to store the three categories of items listed in the Plaintiff’s pleadings extracted above, ie, (a) deregistered vehicles; (b) the forklift; and (c) engines and accessories. Since these categories of items were not explicitly mentioned in cl 2 (which referred only to “vehicle spare parts and bodv kit”), the Plaintiff claimed that the Defendant’s act of storing them in the Warehouse breached the clause.

29 I noted upfront that a reading of cl 2’s reference to “vehicular spare parts” would very comfortably encompass “engines and accessories”. Absent any elaboration from the Plaintiff as to why the term “vehicular spare parts” in cl 2 should be construed in a manner other than what its words naturally conveyed, I took the view that the storage of “engines and accessories” could not be construed as a breach of cl 2.

30 Having dealt with that, I moved on to consider whether the Defendant’s act of storing the other two categories of items pleaded by the Plaintiff, ie, (a) deregistered vehicles and (b) the forklift, was indeed prohibited by cl 2 as claimed by the Plaintiff. Implicit in the Plaintiff’s claim was the premise that cl 2 should be construed as exhaustive in nature – ie, items not captured by the clause’s reference to “vehicle spare parts and body kits” could not be stored in the Warehouse. However, a plain reading of cl 2 showed that the stipulated use of the Warehouse (“shall be used for purpose of vehicle spare parts and bodv kit”) was not expressed as the sole use. In fact, the permitted use as stipulated in cl 2 did not even employ the word “storage”. Thus, the Plaintiff’s contention that cl 2 should be construed as permitting storage of vehicle spare parts and body kits and nothing else added a gloss which narrowed the scope of the clause beyond what a plain reading would suggest.

31 In assessing the viability of the Plaintiff’s construction, I noted the trite proposition that the court may look at the context when interpreting contractual clauses. In Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029 (“Zurich Insurance”), the Court of Appeal endorsed (at [131]) a series of principles set out in Gerard McMeel, The Construction of Contracts: Interpretation, Implication, and Rectification (Oxford University Press, 2007) governing the interpretation of contracts. These included the principle that the court may take the context underlying the contract into account, including the legal, regulatory and factual matrix:

Another principle of construction endorsed in Zurich Insurance was that the court could take account of the business purpose underlying the contract:

32 The Court of Appeal in Zurich Insurance also noted how the admission of extrinsic evidence via proviso (f) to s 94 of the Evidence Act (Cap 97, 1997 Rev Ed) could facilitate the contextual approach to the interpretation of contracts (at [132]):

33 Bearing these principles in mind, I concluded that the context underlying the Tenancy Agreement as at the point of its signing did not lend itself to the construction which the Plaintiff purported to give cl 2. The Defendant expressly pleaded ⁶⁵ that at the time the Tenancy Agreement was entered into, the Plaintiff knew that:

(a) the Defendant was leasing the Warehouse for the purpose of storing not just vehicle spare parts and body kits but deregistered vehicles as well,

(b) cutting/scrapping of deregistered vehicles would take place in the Warehouse; and

(c) for the above purposes, a forklift was required to move the vehicles.

The Defendant further contended that this knowledge was possessed by Goh, who signed the Tenancy Agreement on the Plaintiff’s behalf. In contrast, Goh had in his affidavit of evidence-in-chief (“AEIC”) denied having such knowledge and instead affirmed that the Defendant stored deregistered vehicles in the Warehouse without the Plaintiff’s knowledge and consent. The relevant portion of Goh’s AEIC reads: ⁶⁶

34 Critically, Goh recanted this denial while under cross-examination. He explained that just prior to entering into the Tenancy Agreement, he had visited the premises which the Defendant was operating from, at No. 74 Sungei Kadut. By the time he signed the Tenancy Agreement on the Plaintiff’s behalf, he knew that the Defendant was in the business of scrapping and exporting vehicles. Under cross-examination, Goh admitted that he knew that the Defendant would be renting the Warehouse for the purpose of carrying out the same business as it had been carrying out at No. 74 Sungei Kadut, ie, scrapping vehicles. He also agreed that such a business necessarily involved storing deregistered vehicles at the premises. Most importantly, Goh conceded that the Defendant’s use of the Warehouse for that purpose was with the Plaintiff’s consent. I set out the relevant exchange in the cross examination of Goh: ⁶⁷

35 Given Goh’s recantation, the only conclusion I could arrive at was that the Plaintiff’s construction of cl 2 was plainly at odds with the factual context when the Tenancy Agreement was signed, including the commercial purpose of the Defendant renting the Warehouse. As at that point in time, the Plaintiff (through Goh) knew that the Defendant’s business involved scrapping and exporting vehicles, as well as storing the same. The Plaintiff had further consented to the Defendant renting the Warehouse for conducting that business. As regards the forklift, this was plainly an integral part of the business (to stack the vehicles and move them around). As such, while cl 2 may have operated to allow the Defendant to store vehicle spare parts and body kits, I took the view that it did not (as the Plaintiff contended) restrict the Defendant to using the Warehouse exclusively for that purpose. There was nothing in the evidence allowing me to construe cl 2 as prohibiting the Defendant from storing deregistered vehicles and the forklift within the Warehouse.

36 My conclusion was fortified by cl 22 of the Tenancy Agreement, extracted below, which allowed the Defendant to conduct its trade/business in the Warehouse: ⁶⁸

Given that the Defendant’s trade involved the storing, scrapping and exporting of vehicles, and the Plaintiff knew this as at the point of contracting, cl 22 must be construed as allowing the Defendant to store deregistered vehicles and scrap them within the Warehouse. I saw no reason to construe cl 2 in a manner that would conflict with cl 22 in that regard.

37 The Plaintiff’s claim that the Defendant breached cl 2 thus failed.

38 Clause 11 of the Tenancy Agreement, extracted at [25] above, prohibited the Defendant from storing “the diesel tank” in the Warehouse. While the word “the” preceding the words “diesel tank” in cl 11 might have implied that parties had a particular diesel tank in mind, parties did not proceed on that basis and appeared to take the position that cl 11 referred to diesel tanks in general.

39 The Plaintiff argued that the reference in cl 11 to diesel tanks should be interpreted as encompassing not only external receptacles used for storing diesel but vehicle fuel tanks as well. This interpretation meant that for vehicles running on diesel, the entire fuel tank would have been caught by the prohibition in cl 11 and would consequently have to be removed before the vehicles could be stored in the Warehouse. ⁶⁹ As the Defendant failed to perform such removal prior to storing vehicles in the Warehouse, the Plaintiff claimed that cl 11 was breached.

40 While the word “tank” in cl 11 would have comfortably captured external receptacles that were primarily purposed for storage, I was not prepared to endorse the Plaintiff’s attempt to extend that word (as it was used in cl 11) to encompass fuel tanks still forming part of the vehicle. My hesitation stemmed from the following reasons:

(a) Under cross-examination, Goh testified that there was “no problem” so long as the oil remained within the vehicle. He also voiced the view that cl 11 prohibited only the “big tanks” used to store oil: ⁷⁰

Given the above, construing cl 11 in a manner that would introduce an obligation on the Defendant to remove fuel tanks from vehicles prior to storage, especially when the Tenancy Agreement made no express mention of any such obligation, would simply did not cohere with the contracting parties’ intentions.

(b) Secondly, the Plaintiff’s contention that the Defendant failed to remove the fuel tanks from vehicles stored in the Warehouse was not pleaded. The Statement of Claim only asserted that the Defendant failed to remove the petrol from the vehicles’ fuel tanks prior to storage, ⁷¹ without any mention of the Defendant being obliged to remove the vehicles’ fuel tanks.

41 My conclusion on how the word “tank” in cl 11 should be construed was itself sufficient to warrant dismissal of the Plaintiff’s claim that the Defendant breached cl 11. However, even if I were wrong and that word could be construed as including fuel tanks still attached to vehicles stored in the Warehouse, that would still not salvage the Plaintiff’s attempt to establish a breach of cl 11. This was because cl 11 did not prohibit just any tank – it specifically prohibited diesel tanks. Yet, the Plaintiff failed to adduce evidence to show if any of the deregistered vehicles stored within the Warehouse had fuel tanks containing diesel, as opposed to some other type of fuel. It was evident that this failure arose because the Plaintiff had erroneously conflated the term “diesel” with “petrol”, to the point that it regarded the petrol tanks of vehicles stored in the Warehouse as being caught by cl 11’s prohibition against diesel tanks. For example, Goh’s AEIC had, in alleging a breach of cl 11, affirmed that “[t]he Defendant stored de-registered cars with fuel (including petrol) tanks at the tenanted premises”. ⁷² Similarly, The Plaintiff’s closing submissions referenced “petrol tanks” (as opposed to “diesel tanks”) when alleging that cl 11 had been breached: ⁷³

42 To loosely construe the term “diesel tank” in cl 11 as being synonymous with “petrol tank” would broaden the scope of the clause well beyond what its plain meaning conveyed. This was unwarranted, especially given the markedly prohibitive language of cl 11, which employed the term “strictly not allowed”. This prohibition was unambiguously expressed to target diesel tanks – I saw no basis to extend it to tanks containing other types of fuel (eg, petrol).

43 As there was no evidence that the fuel tanks of any of the vehicles stored in the Warehouse contained diesel, the Plaintiff failed to demonstrate that cl 11 had been breached.

44 Clause 13 of the Tenancy Agreement, extracted at [25] above, imposed two obligations on the Defendant:

(a) Not to carry out of any burning within the Warehouse.

(b) To store any thinner or chemical that is fire hazardous in a safe corner.

As regards the obligation in (a), there was no evidence, nor any suggestion by the Plaintiff, that this had been breached by the Defendant.

45 As regards the obligation in (b) of the preceding paragraph, there was similarly no evidence of any thinner or fire-hazardous chemicals in the Warehouse, much less the failure to store such items in a safe corner. Nevertheless, the Plaintiff contended that the fuel within the tanks of deregistered vehicles stored in the Warehouse constituted a “fire hazardous” chemical within the meaning of cl 13. The Plaintiff’s construction of cl 13 meant that to avoid falling foul of this clause, the Defendant had to siphon out the fuel and store the same in a “safe corner”, before stowing the vehicle in the Warehouse. In this respect, the Defendant’s practice was to extract fuel from vehicles only when they were being dismantled, ⁷⁴ upon which the extracted fuel would then be taken out of the Warehouse.74 However, prior to dismantling, deregistered vehicles would be stored in the Warehouse with fuel still in their tanks, sometimes for up to three or four days.74 The Plaintiff thus contended that the presence of fuel within such vehicles stored at the Warehouse breached cl 13, as per its construction of the clause set out in this paragraph.

46 In my view, it would be wrong to construe cl 13 as obliging the Defendant to remove the fuel from the vehicle’s fuel tank (with a view to storing the fuel in a “safe corner”) before stowing the vehicle in the Warehouse:

(a) Firstly, there was nothing to show that parties regarded fuel as a “fire hazardous” chemical within the meaning of cl 13 where that fuel still resided within the vehicle’s fuel tank. Critically, as alluded to at [40(a)] above, Goh himself admitted that there would be “no problem” if the fuel was left in the vehicle’s fuel tank.

(b) Secondly, the Plaintiff failed to adduce evidence of any fire safety practice within the storage industry requiring warehouse owners to empty vehicles of their fuel before storing them.

As such, the evidence simply did not warrant me construing cl 13 in a manner that would introduce an obligation on the part of the Defendant to remove the fuel from the vehicle’s fuel tank, prior to storage of the vehicle, when the Tenancy Agreement made no express mention of any such obligation.

47 Consequently, the fact that there was fuel within the fuel tanks of vehicles stored in the Warehouse did not constitute a breach of cl 13.

48 To recapitulate, the Plaintiff contended that the following terms, governing the permitted uses of the Warehouse, should be implied in the Tenancy Agreement:

(a) Firstly, the Defendant was prohibited from the following:

(i) Permitting any combustible or flammable liquids or materials in the Warehouse – see [23(b)(i)] above.

(ii) Keeping any liquids or chemicals or materials that would cause a fire hazard within the Warehouse – see [23(b)(ii)] above.

I refer to both (i) and (ii) collectively as the implied term prohibiting “fire-hazardous materials”.

(b) Secondly, the Defendant was prohibited from carrying out activities that would cause a fire hazard – see [23(b)(ii)] above. I refer to this as the implied term prohibiting “fire-hazardous activities”.

At the outset, I should highlight that it was not clear to me what the Plaintiff was seeking to attain by implying the two prohibitions above. I could only assume that implying the prohibition in (a) – ie, against fire-hazardous materials – allowed the Plaintiff to say that the Defendant’s act of allowing fuel to remain in the vehicles stored at the Warehouse was a breach of contract. As regards the implied prohibition in (b) – ie, against fire-hazardous activities – the Plaintiff did not elaborate as to what activities it hoped to catch with this implied term. Presumably, the Plaintiff was hoping to say that the implied term prohibited the Defendant’s activity of scrapping vehicles – the heat from the implements used to cut metal could potentially trigger a fire, if not used with precaution.

49 In evaluating the Plaintiff’s submissions on implied terms, I bore in mind the guidance prescribed in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 (“Sembcorp Marine”), where the Court of Appeal set out a three-step test for when a term may be implied into a contract (at [101]):

50 Returning to the present case, I had considerable difficulty in assessing the Plaintiff’s case on implied terms. Despite asking the court to imply a slew of terms into the Tenancy Agreement, including those at [23(b)] above, the Plaintiff’s closing submissions failed to explain how the facts justified the implication of any of these terms, as per the test in Sembcorp Marine. Indeed, neither the test nor the case of Sembcorp Marine itself was cited in the Plaintiff’s closing submissions, nor any legal authorities governing implied terms in contract. It was only after the defence highlighted the test in its closing submissions that the Plaintiff sought to address the same in its reply submissions. Even after having done this, the Plaintiff still failed to sufficiently demonstrate why the facts of this case justified the implication of any of the terms proposed by the Plaintiff at [48] above.

51 Firstly, the evidence did not disclose any gap in the Tenancy Agreement, as required by step (a) of the three-step test encapsulated in the Court of Appeal’s decision extracted at [49] above, that might justify implying the prohibitions against fire-hazardous materials and activities. In Sembcorp Marine, the Court of Appeal explained when such a gap might be found to exist (at [94]-[95]):

52 The Plaintiff claimed that a gap existed here because cl 13 of the Tenancy Agreement was “vague” and “ambiguous” in scope, in that it prohibited burning at the Warehouse and yet allowed storage of fire-hazardous materials at a safe corner. ⁷⁵ To remediate this, it was necessary to imply a clear term prohibiting the Defendant from permitting fire-hazardous materials within the Warehouse. I rejected this argument for the following reasons.

53 Firstly, cl 13 struck me as neither vague nor ambiguous. Its two prongs were clear: (a) no burning; and (b) all fire-hazardous materials were to be safely stored. Contrary to the Plaintiff’s contention, both prongs did not conflict with each other.

54 Secondly, even if cl 13 was considered deficient, in that it failed to capture what the Plaintiff truly wanted to address, the extract from the Court of Appeal’s decision in Sembcorp Marine at [51] above (particularly sub-paragraph (b) of the extract) is clear that if the contracting parties consciously chose not to incorporate a term on an issue because they mistakenly believed that the issue was already addressed by an existing express term, this would not constitute a true gap warranting the implication of a term. As such, even if the Plaintiff had at the time of contracting mistakenly believed that cl 13 was unambiguous enough to target the activity which it had in mind (ie, storing fire-hazardous materials), only to now realise that the clause was too vague to achieve that purpose, this would not constitute a “true” gap that would justify implying the prohibition against fire-hazardous materials.

55 Thirdly, even if there had been a gap, I was not convinced that it would be necessary – as contemplated by step (b) of the three-step test encapsulated in the Court of Appeal’s decision extracted at [49] above – to imply the terms propounded by the Plaintiff at [48] above. I took this view for the following reasons:

(a) As regards implying a prohibition against fire-hazardous materials (referred to at [48(a)] above):

(i) I did not see why it was necessary to imply such a term, particularly if the Plaintiff’s objective was to prohibit the presence of fuel within the vehicles stored in the Warehouse. I have already explained (at [44(b)] above) that Goh saw no problems with the vehicles stored in the Warehouse still having fuel in their tanks. Moreover, as alluded to above (at [46(b)]) there was no evidence of any industry practice mandating that fuel be siphoned out from vehicles prior to storage.

(ii) Furthermore, the words of cl 13 showed that at the point of contracting, parties evidently applied their minds to the issue of “fire hazardous” chemicals and decided that these chemicals could be stored in the Warehouse – so long as they were stored in a “safe corner”. Implying a flat prohibition against fire-hazardous materials would, far from being necessary, introduce conflicting obligations into the Tenancy Agreement.

(b) As regards implying a prohibition against fire-hazardous activities (referred to at [48(b)] above), I was similarly not minded to imply such a term, particularly if the objective was to bar the Defendant’s scrapping activities. Rather than being necessary, implying such a term would run counter to the context facing the parties as at the time of contracting. It could not have been the intention of parties for the Tenancy Agreement to prohibit vehicle scrapping within the Warehouse, given that the Plaintiff knew at the time of contracting that the Defendant was going to use the Warehouse for its scrapping activities and had consented to the same: see [35] above. The following observation by the Court of Appeal in Sembcorp Marine (at [73]) is apposite: “Indeed, it is trite that the court must have regard to the context at the time of contracting when considering the issue of implication” [emphasis added].

56 Finally, even if I were to imply a prohibition against fire-hazardous activities and rule that the Defendant’s scrapping activities would have breached this, that would still not advance the Plaintiff’s claim. As explained in the analysis below on the Plaintiff’s claim in tort, the Plaintiff failed to establish that the Defendant had been conducting any scrapping works at the time of the fire. Any breach of the implied prohibition by virtue of scrapping activities conducted at some earlier point in time prior to the fire would have borne no causal link to the fire. As explained in Crescendas Bionics Pte Ltd v Jurong Primewide Pte Ltd and other appeals [2023] 1 SLR 536 (“Crescendas Bionics”), a plaintiff claiming damages for a breach of contract must prove that causal link, by establishing on a balance of probabilities that he would not have suffered the damage sustained but for the breach (at [38]).

57 Given the above considerations, the Plaintiff’s attempt to imply the terms pertaining to the permitted uses of the Warehouse, as set out at [48] above, lacked merit and was rejected.

58 The Plaintiff also contended that the Defendant breached various terms in the Tenancy Agreement pertaining to fire safety measures. According to the Plaintiff, the relevant terms were both express and implied:

(a) Firstly, the Plaintiff relied on the express term in cl 6 of the Tenancy Agreement, which provided that:

(b) Secondly, the Plaintiff contended that there was an implied term in the Tenancy Agreement obliging the Defendant to have proper firefighting equipment and materials at the Warehouse at all material times: see [23(b)(iii)] above.

The Plaintiff contended that the Defendant breached both the express and implied term set out above, by failing to have proper firefighting equipment (such as the appropriate type of fire extinguishers) on site at the Warehouse.

59 I rejected this submission. I did not think that cl 6 had been breached, nor did I think that a term should be implied to oblige the Defendant to have proper firefighting equipment and materials at the Warehouse.

60 As regards cl 6 of the Tenancy Agreement, this housed two obligations, neither of which were shown to have been breached.

(a) The first obligation under cl 6 was to keep the Warehouse clean. In asserting that this had been breached, the Plaintiff’s closing submissions contended that Goh “saw oil” and also saw that the Defendant’s employees “anyhow threw things around”. ⁷⁶ However, there was little by way of elaboration, whether in the Plaintiff’s submissions or AEICs, or even in Goh’s oral testimony, ⁷⁷ as to where the oil was found and what “things” had been thrown around. I should add that even if I were to accept that cl 6 had been breached by the presence of oil on the premises and “things” having been thrown around, this would still not assist the Plaintiff’s case as the Plaintiff would have failed to demonstrate how these alleged breaches caused the fire (and thereby caused damage to the Plaintiff): Crescendas Bionics at [38].

(b) The second obligation under cl 6 was that “fire safety measure [sic] must be observed at all times”. The Plaintiff pointed out that the term “fire safety measure” in cl 6 was “imprecise and vague in that it did not specify what amounts to fire safety measure”. ⁷⁸ Yet, the Plaintiff failed to explain, despite attesting to the vagueness of cl 6, why the term “fire safety measure” in that clause should be construed in a manner as to disclose a breach by the Defendant. Without such substantiation, it was not possible to conclude one way or another whether this obligation in cl 6 had indeed been breached.

61 As regards the implied term which the Plaintiff proposed, ie, that the Defendant must have proper firefighting equipment and materials at the Warehouse at all material times, this failed to pass muster under the test propounded by the Court of Appeal in Sembcorp Marine, extracted at [49] above:

(a) Firstly, I did not think that there was a gap, as required by step (a) of the three-step test encapsulated in Sembcorp Marine, which would justify implying the term advocated by the Plaintiff. Parties had expressly applied their mind to the fire safety issue at the time of contracting and, to that end, incorporated cl 6, which mandated the observance of “fire safety measure” [sic]. Nevertheless, as alluded to in the preceding paragraph, the Plaintiff highlighted that the term “fire safety measure” in cl 6 was vague and imprecise and argued that this was a reason to imply a more specific term which obliged the Defendant to have proper firefighting equipment and materials at the Warehouse at all material times. ⁷⁹ This submission was misconceived. The reasoning set out at [52] and [54] above applied equally here: Even if the Plaintiff had, as at the time of contracting, mistakenly believed that the term “fire safety measure” in cl 6 was specific enough to impose the obligation which the Plaintiff intended (ie, that Defendant must have proper firefighting equipment and materials at the Warehouse at all material times), only to now realise that the clause was too imprecise to do so, that would not constitute a “true” gap which would justify implying a term to address that obligation: Sembcorp Marine at [94(b)].

(b) Secondly, even if there was a gap, I still did not think it was necessary to imply a term that the Defendant must have proper firefighting equipment and materials at the Warehouse at all material times. It is perfectly conceivable to have a tenancy arrangement where the landlord is the party who provides the firefighting equipment (such as fire extinguishers and hoses), while the tenant observes related fire safety measures (such as ensuring that its employees follow the relevant safety protocols). In fact, the Plaintiff’s evidence suggested an understanding that it was the Plaintiff which would provide the Defendant with firefighting equipment and, pursuant to that understanding, the Plaintiff did provide the Defendant with the necessary firefighting equipment. This was evident from the following extract of the cross-examination of Goh: ⁸⁰

62 In any case, even if I were to imply a term that the Defendant was obliged to have proper firefighting equipment and materials in the Warehouse at all material times, the Plaintiff failed to prove that the term (if implied) had been breached on the facts. In particular, the evidence did not sufficiently establish the Plaintiff’s claim that the Defendant failed to have the appropriate fire extinguishers on site:

(a) The Plaintiff’s director at the time, Namperumal Paulraj (“Paulraj”), testified that the Defendant always had fire extinguishers on the premises. ⁸¹ Gabir provided further details, testifying that the Defendant had at least six fire extinguishers at the Warehouse. ⁸² Further, both Gabir ⁸³ and Ganapathy ⁸⁴ were consistent in their oral testimonies that the Warehouse had type B fire extinguishers – being the type used to fight fires caused by flammable liquids.

(b) Ganapathy also testified that at the time of the fire, one of the Defendant’s employees – Mani – had come running out with a fire extinguisher to fight the fire ⁸⁵ (see [10] above). This fact was at the very least consistent with the Defendant having fire extinguishers on site.

(c) In the aftermath of the fire, SCDF found several spent fire extinguishers next to the Chery Car (see [14(a)] above). There was no suggestion from the Plaintiff that all these fire extinguishers came from its firefighting arsenal, meaning that there was nothing to rule out the prospect of one or more of these spent fire extinguishers having come from the Defendant.

Viewing the evidence in the round, it was simply not possible to infer that the inability to put out the fire arose from any want of firefighting equipment on the Defendant’s part.

63 Accordingly, the Plaintiff failed to establish that the Defendant had breached the express and (purported) implied terms on fire safety measures in the Tenancy Agreement.

64 The Plaintiff also alleged that the Defendant breached various other miscellaneous terms in the Tenancy Agreement. Broadly, these pertained to:

(a) the procurement of insurance to cover the damage from the fire; and

(b) the payment of stamp duty on the Tenancy Agreement.

65 Clause 15 of the Tenancy Agreement, which required the Defendant to procure insurance coverage for its own goods, provided:

It was undisputed that the Defendant failed to abide by cl 15, in that it failed to procure the fire insurance required by this clause.

66 Nevertheless, cl 15 pertained to procuring insurance against fire damage suffered by the Defendant. There being no explanation as to how cl 15 was relevant to fire damage suffered by the Plaintiff, I concluded that the breach of this clause did not entitle the Plaintiff to claim for any losses. These grounds will nevertheless return to cl 15 below, when analysing the counterclaim by the Defendant.

67 The Plaintiff also contended that a term should be implied into the Tenancy Agreement obliging the Defendant to insure the Warehouse against fire and any other risks for the Defendant’s goods and property at the Warehouse: see [23(b)(iv)] above. It was unclear why the Plaintiff was seeking to imply such a term, when the ambit of the purported term appeared to be squarely covered by cl 15. Consequently, I rejected this submission.

68 The Plaintiff further claimed that a term should be implied to oblige the Defendant to procure insurance coverage for all risks to indemnify the Plaintiff and other persons at the Property, for all losses arising from any negligence by the Defendant and its servants, agents, licensees or invitees: see [23(b)(v)] above. However, I failed to see why it was necessary in the business or commercial sense – see Sembcorp Marine at [101] (extracted at [49] above) – to imply such a term. I agreed with the Defendant’s submission ⁸⁶ that a tenancy agreement can be perfectly operative and functional without such an allocation of risk via insurance coverage. Accordingly, I rejected the Plaintiff’s claim that such a term be implied.

69 On the issue of stamp duty, cl 24 of the Tenancy Agreement stated:

The Plaintiff submitted that the Defendant failed to pay the stamp duty fee, with the result that it was the Plaintiff which had to pay the fee on 22 November 2022, plus a penalty, with the payments collectively amounting to $814. ⁸⁷

70 There appeared to be no dispute that the Defendant had failed to abide by this clause. In their respective oral testimonies, both Gabir ⁸⁸ and Paulraj ⁸⁹ conceded that the Defendant was liable for the stamp duty. I therefore held that the Defendant should honour its obligation under cl 24 and ordered the Defendant to pay the Plaintiff $814, on account of the stamp duty fee and penalty borne by the latter.

71 To summarise:

(a) The Plaintiff failed to demonstrate that the Defendant had breached any express terms of the Tenancy Agreement (save for the clause on payment of stamp duty).

(b) The Plaintiff’s claim that the Defendant breached the Tenancy Agreement’s implied terms also failed, as the Plaintiff failed to establish why any of the purported terms which it had put forward ought to be implied in the first place.

72 I now move to the Plaintiff’s claim that the Defendant was negligent, having breached its duty of care owed to the Plaintiff in tort.

73 The starting point would be to first assess if the Defendant owed the Plaintiff a duty of care. The test for determining whether such a duty exists was laid out in the seminal case of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck Engineering”). Applying the framework for analysis expounded by the Court of Appeal in that case, I agreed with the Plaintiff that the Defendant did owe the Plaintiff a duty to take reasonable care to prevent fires from starting or spreading in the Warehouse.

74 Firstly, the threshold question was whether it was factually foreseeable that the Plaintiff was going to suffer damage from the Defendant’s negligence: Spandeck Engineering at [76]. On the present facts, that threshold question had to be answered in the Plaintiff’s favour. It was eminently foreseeable that any fire resulting from the Defendant’s failure to take proper care would likely damage the Plaintiff’s assets, being the buildings within the Property and the Plaintiff’s belongings therein.

75 Secondly, having crossed that threshold, the court would have to consider if the relationship between the parties bore sufficient proximity as to justify the imposition of a duty of care: Spandeck Engineering (at [77]). In Spandeck Engineering, the Court of Appeal expressed (at [78]) its endorsement of the views of Deane J in the Australian High Court decision of Sutherland Shire Council v Heyman (1985) 60 ALR 1 that an assessment of whether there was sufficient proximity as to found a duty of care would involve assessing if there was physical, circumstantial and causal proximity. The Court of Appeal further explained that when assessing if proximity exists, analogies may be drawn with the case precedents, albeit that the court need not shy away from imposing a duty of care just because the factual matrix at hand (against which a duty of care is sought to be imposed) is a novel one. The relevant section of the Court of Appeal’s judgment (at [82]) is instructive:

In the present case, the relationship between the Defendant (as the tenant) and the Plaintiff (as the landlord who continued to occupy the Property) was clearly proximate enough for me to find that the Defendant owed a duty of care to the Plaintiff. Specifically, the Defendant owed a duty to take reasonable care in observing appropriate safety measures, to prevent the start and spread of fires. Any fire which started or spread as a result of the Defendant’s failure to do so would have an immediate and significant impact on the interests of the Plaintiff, as well as that of the Plaintiff’s other tenants. I also noted that analogies can be drawn with past precedents where a duty of care was imposed on occupiers to take appropriate fire safety measures: see, eg, the decisions of Chao Hick Tin J (as he then was) in Virco Metal Industries Pte Ltd and another v Carltech Trading and Industries Pte Ltd and others [1999] 2 SLR(R) 503 (at [14] and [17]) and the decisions of Belinda Ang J (as she then was) in Saatchi & Saatchi Pte Ltd and others v Tan Hun Ling (Clarke Quay Pte Ltd, third party) [2006] 1 SLR(R) 670 (at [12] and [40]) and Te Deum Engineering Pte Ltd v Grace Electrical Engineering Pte Ltd [2016] SGHC 232 (at [116]).

76 Thirdly, the court must assess if any policy considerations might militate against imposing a duty of care – this would include determining whether there is an existing contractual matrix which clearly defines the rights and liabilities of the parties: Spandeck Engineering at [83] and [114]. In the present case, there was a contract between the parties (ie, the Tenancy Agreement) defining their respective rights and liabilities. However, that contract did not rule out the imposition of a corresponding duty of care. Rather, cl 14 of the Tenancy Agreement appeared to recognise the existence of a general liability on the part of the Defendant for negligence:

77 Accordingly, I found that the Plaintiff did owe a duty to take reasonable care to prevent fires from starting or spreading in the Warehouse. The Defendant’s submissions did not attempt to deny the existence of such a duty.

78 Having arrived at that conclusion, the next step would then be to assess if that duty had been breached by the Defendant. It was at this juncture of the analysis that I encountered material difficulties in the Plaintiff’s submissions on its tortious claim. In the Statement of Claim, ⁹⁰ the Plaintiff adopted a blunderbuss approach, firing off a plume of some 18 breaches. These were reproduced in the Plaintiff’s submissions, which are extracted below: ⁹¹

It was evident that little discretion had been exercised in lining up the laundry list of purported breaches extracted above. Many of the items overlapped heavily, to the point of being repetitious, with no attempt on the Plaintiff’s part to properly sort them out. Additionally, it was baffling how some of these breaches found their way into the list, given that they bore no causal link to the fire whatsoever.

79 To facilitate the ease of navigating the Plaintiff’s claims in tort, I categorised the alleged breaches of duty listed above under the following three headings:

(a) Causing the fire to start – the Plaintiff’s position on this issue hinged principally on the evidential rule of res ipsa loquitur.

(b) Allowing the fire to spread.

(c) Breaches of other miscellaneous tortious duties alleged by the Plaintiff.

These three categories have been canvassed below, in the order set out above.

80 Of the list of breaches pleaded by the Plaintiff and extracted at [78] above, items (i), (vii) and (xvii) in the extract related to the Plaintiff’s claim that the Defendant breached its duty of care by starting the fire. Specifically:

(a) item (i) alleged that the Defendant failed to take all reasonable and effective measures whether by inspection, examination or otherwise, to ensure that there was or would be no risk of a fire arising from the Chery Car;

(b) item (viii) alleged that the Defendant’s employees had been working on or near the Chery Car; and

(c) item (xvii) alleged that the Defendant failed to take effective steps to ensure fire safety measures were observed while working in the Warehouse.

81 The Plaintiff’s pleadings nevertheless stopped short of specifying how these breaches led to the start of the fire. Instead, the Plaintiff’s Statement of Claim sought to invoke the evidential rule of res ipsa loquitor to support the inference that the Defendant must have started the fire, ⁹² while working in the Warehouse. The Plaintiff contended that this evidential rule was available because the cause of the fire’s ignition could not be precisely ascertained. ⁹³

82 Res ipsa loquitur, being Latin for “the thing speaks for itself”, is an evidential rule that plaintiffs can invoke in situations where the cause of an incident is unknown and this engenders evidential challenges which may otherwise impede the plaintiff’s attempts to discharge the legal burden of proving the defendant’s negligence. Under such circumstances, if the defendant had been in control of the situation in which the incident occurred and that incident would not have happened in the ordinary course of things had the defendant exercised proper care, res ipsa loquitur may apply. A plaintiff who invokes this evidential rule would in essence be asking the court to infer that the defendant must have breached his duty of care, on the basis that the very occurrence of the incident speaks for itself. Successful invocation of res ipsa loquitur allows the plaintiff to establish a prima facie case of negligence, notwithstanding the difficulties in proving the cause of the incident, thereby shifting the evidential burden to the defendant to rebut the inference that the incident must have arisen from him breaching his duty of care. The mechanics underlying the operation of res ipsa loquitur were canvassed in Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2018] 1 SLR 76 (“Grace Electrical Engineering”), where the Court of Appeal explained (at [39]):

83 The Court of Appeal then set out three requirements which must be met by a plaintiff seeking to invoke res ipsa loquitur (at [39]–[40]):

84 In assessing if the Plaintiff was entitled to invoke res ipsa loquitur to establish a prima facie case of negligence by the Defendant, I examined whether the three requirements above were satisfied in the present circumstances. To better accommodate the flow of the factual matrix in this case, I arranged my analysis of the three requirements in the following order:

(a) Firstly, was the cause of the fire unknown?

(b) Secondly, was the Defendant in control of the situation which resulted in the fire?

(c) Thirdly, was the fire one that would not have happened in the ordinary course of things, if the Defendant took proper care?

As will be seen below, parties devoted the bulk of their submissions to addressing requirement (c).

85 The third requirement for invoking res ipsa loquitur is that the cause of the incident must have been unknown. Where the cause is known, the evidential rule will no longer apply. The rationale for this was explained in Grace Electrical Engineering (at [76]):

Based on the evidence, I concluded that the cause of the fire in this case was unknown – meaning that the third requirement for invoking res ipsa loquitur was satisfied. The following sets out my analysis on this issue.

86 Both experts, as well as SCDF, were unanimous in their view that the fire likely originated from the Chery Car. ⁹⁴ The evidence also largely suggested that the origin of the fire was likely electrical in nature. Everyone was also unanimous in the view that an electrical fault within a vehicle can trigger a fire even when the vehicle’s ignition key is in the “Off” position:

(a) SCDF’s Report explained how electricity could continue running through a vehicle’s circuitry, so long as the circuits remained connected to the battery. The relevant section of SCDF’s Report is extracted below: ⁹⁵

During the trial, the Plaintiff called SCDF’s Major Muhammad Faizal Bin Mazlan (“Maj Faizal”) as a witness – he reaffirmed in his oral evidence under cross-examination that an electrical fault can still occur, even when the vehicle’s ignition key is in the “Off” position. ⁹⁶

(b) Mr Cheam similarly confirmed in his oral evidence that an electrical current fault can happen even if the vehicle’s ignition is in the “Off” position, given that there would still be electricity flowing through devices such as the vehicle’s clock, radio, alarm system and the Electronic Control Unit memory. ⁹⁷

(c) Mr Brown, like SCDF and Mr Cheam, also agreed that the vehicle’s “circuits are still alive” even when the ignition key is switched off completely. ⁹⁸

87 Having said that, there was some divergence in views between parties as to whether an electrical fault (from within the Chery Car) did in fact cause the fire. Both SCDF and Mr Cheam took the view that this was likely the case. SCDF’s Report stated that “[t]he ignition source was believed to be of an electrical origin from the deregistered Chery [Car]”. ⁹⁹ Similarly, Mr Cheam took the view that the cause of the ignition was “electrical in nature”, ¹⁰⁰ on account of how electrical arcing had been observed at the Chery Car’s dashboard area. ¹⁰¹ By “arcing” Mr Cheam meant that electricity had been flowing through the wires at the time of the fire, ¹⁰² which resulted in signs of fusion, melting and bleeding on the electrical cables. ¹⁰³ In contrast, Mr Brown harboured some uncertainty about whether the source of the fire in this case could have been electrical in nature. ¹⁰⁴ Mr Brown explained that although electricity may continue to run through a vehicle’s circuits while the ignition key is switched off, this phenomenon also meant that the vehicle’s battery continues to drain over time.98 He then highlighted that if the Chery Car had been left idle over the 19-day period leading up to the fire, while it was stored within the Warehouse (see [7] above), its battery might have drained to the point of going flat by the time of the fire. ¹⁰⁵ Mr Brown explained that if that happened, an electrical fault would no longer be a competent source of ignition (there being no longer any charge in the battery to generate the fault). ¹⁰⁶ In canvassing this alternative view, Mr Brown sought to cast doubts on Mr Cheam’s observations that the Chery Car’s wires showed signs of arcing (thereby suggesting that electricity was running through the circuitry at the time of the fire) – Mr Brown opined that what Mr Cheam saw may have been no more than “flame impingement” or “radiant heat damage”. ¹⁰⁷

88 I accepted the unanimous view of all parties that the fire did originate from the Chery Car. Furthermore, I accepted the views of both SCDF and Mr Cheam that the cause of the fire was likely an electrical fault originating from the Chery Car. In so deciding, I was unpersuaded by Mr Brown’s reservations that the Chery Car’s battery may have run flat by the time of the fire (as a result of being left idle in the Warehouse for 19 days) such that an electrical fault was no longer a competent trigger:

(a) As regards the doubts which Mr Brown sought to cast on Mr Cheam’s observations of electrical arcing, it had to be borne in mind that while Mr Brown based his expert conclusions on photographs taken by SCDF and Envista, ¹⁰⁸ Mr Cheam was physically present at the aftermath of the fire, during which the photographs were taken. Clearly, Mr Cheam would have had a better visual perspective of the wires, which he said bore the signs of arcing – Mr Brown conceded this. ¹⁰⁹

(b) Plaintiff’s counsel had also put to Mr Brown that people do park their cars and go off on holiday for two to three weeks at a time and it is plainly uncommon for them to return home to a flat car battery. Mr Brown offered no convincing riposte, save to say that it was still “possible” for the battery to be flat upon one’s return from holiday. ¹¹⁰

(c) I also note that despite Mr Brown’s reservations about whether electricity could still have been running within the Chery Car’s circuits, he was not able to offer a sufficiently viable alternative explanation. Ultimately, he still concluded that an “unknown and undeterminable electrical fault” [emphasis added] was the “most likely cause” of the fire, subject to the caveat that he could not dismiss the prospect of the Chery Car’s battery having gone flat. ¹¹¹

89 While I concluded that the fire likely started from an electrical fault within the Chery Car, I still took the view that the cause of the fire remains unknown. I arrived at this conclusion for the following reasons.

90 Firstly, while the cause of the fire (using that term very broadly) was electrical in origin, there was no information as to how the electrical fault arose. SCDF’s report canvassed a wide swathe of possibilities, including (i) overloaded wiring, (ii) high resistance connections due to poor or ineffective electrical connections, and (iii) electrical short circuits and arcing from damaged wiring conductor insultation: ¹¹² Given the wide and open-ended range of possibilities, SCDF’s Report concluded that “[th]e circumstances surrounding the fire of electrical origin cannot be conclusively determined due to the extensive damage to the car.”112 Mr Cheam’s 1st Report similarly expressed an open-ended conclusion, stating that “the cause of the fire incident is considered undetermined”. ¹¹³ As for Mr Brown, while he came to the qualified conclusion that an electrical fault was the most likely cause of the fire, he too described the putative electrical cause as “unknown and undeterminable” (see [88(c)] above).

91 Secondly, while the blaze may have been triggered by an electrical fault within the Chery Car, the more important question was how that electrical fault translated into a fire. This question lay at the very heart of the present dispute. One of the key planks undergirding the Plaintiff’s case was the suggestion that the Defendant’s employees were performing works either on the Chery Car or near it ¹¹⁴ and, while doing so, triggered the fire. In advancing that suggestion, the Plaintiff relied on Mr Cheam’s 2nd Report, in which he opined that he “cannot not rule out” that the Defendant was working on the Chery Car and this may have led to (amongst other things) petrol leakage ¹¹⁵ – the electrical fault may then have ignited the leaked petrol. In contrast, SCDF contemplated that the electrical fault may have ignited a variety of materials, and not just petrol. SCDF’s Report canvassed the following list of possible items: ¹¹⁶

92 Accordingly, given the question marks over how the electrical fault arose, as well as how that electrical fault translated into flames, I took the view that the cause of the fire remained unknown. My conclusion was also fortified by the fact that the Defendant, despite contending that res ipsa loquitur was not applicable in the present case, ultimately conceded in its submissions that the cause of the fire was unknown. ¹¹⁷

93 This meant that the third requirement for invoking res ipsa loquitur was satisfied.

94 The first requirement for invoking res ipsa loquitur is that the situation was under the Defendant’s control at the time of the fire (see the extract from the decision in Grace Electrical Engineering, at [83] above). It was clear that this requirement was also satisfied on the facts of this case. Gabir testified that the Defendant had exclusive control over the Warehouse ¹¹⁸ and the things stored in it, ¹¹⁹ as well as control of all the people going into and out of the Warehouse. ¹²⁰

95 The second requirement for invoking res ipsa loquitur is that the incident (in this case being the fire) is one that would not have happened in the ordinary course of things, if the defendant had taken proper care. In Grace Electrical Engineering, the Court of Appeal couched this requirement in another way: “the fire was in the ordinary course of things more likely than not to have been caused by the [defendant’s] negligence” (at [72]). To that end, the Court of Appeal explained (at [67]) that res ipsa loquitur does not apply if the evidence is equally consistent with negligent as with non-negligent causes:

96 This specific requirement for invoking res ipsa loquitur is important in the context of accidents by fire. In Grace Electrical Engineering, the Court of Appeal observed that the mere fact that a fire occurred does not in and of itself mean that negligence must have been involved, given that fires can be triggered by many causes (at [41]):

The above observation is particularly apposite in the present case where (as explained at [88] above) the fire was likely triggered by an electrical fault and all parties were unanimous in the view that such an electrical fault can arise in a vehicle even when its ignition key is switched to the “Off” position (see [86] above). In short, the present factual matrix was arguably a manifestation of an instance where (to use the Court of Appeal’s words quoted immediately above), “the mere occurrence of the fire does not in itself give rise to an inference of negligence”. An electrical fault could have been triggered within the Chery Car even as it lay dormant, with no one having turned its engine on. Without more, the state of the evidence could arguably be regarded as “equally consistent with negligence as with no negligence” (per the Court of Appeal in Grace Electrical Engineering at [67]), in which case res ipsa loquitur would not apply.

97 Under such circumstances the Plaintiff must at least identify some act or omission by the Defendant which could have caused the fire. As the Court of Appeal in Grace Electrical Engineering observed (at [47]):

If the act or omission concerned was a negligent one which increased the risk of a fire, the court is more likely to invoke res ipsa loquitur: Grace Electrical Engineering at [50].

98 To this end, the Plaintiff claimed that the Defendant was indeed guilty of acts or omissions which increased the risk of a fire:

(a) Firstly, the Plaintiff claimed (per item (i) of the list of breaches extracted at [78] above) that the Defendant omitted to:

(b) Secondly, the Plaintiff claimed (per items (viii) and (xvii) of the list of breaches extracted at [78] above) that the Defendant’s employees were working on or near the Chery Car at the time of the fire and had failed to take effective steps to ensure the observance of fire safety measures while working in the Warehouse.

I rejected the claim in (a) above as it was bereft of particulars. The Plaintiff failed to offer any elaboration as to the nature of the inspections or examinations that it had in mind, as well as how these would have ameliorated the risk of an electrical fault. Without such particulars, the court could not even begin to consider if such inspections or examinations had in fact been omitted by the Defendant, whether the omission was negligent and whether the omission ultimately had any causal link to the fire which ensued.

99 As for the act alleged in (b) of the preceding paragraph, ie, working on or near the Chery Car without observing safety measures, this was the central focus of parties’ submissions on res ipsa loquitur. At the outset, I noted that the Plaintiff’s case was highly murky when it came to identifying just what “works” the Defendant’s employees were allegedly performing in the Warehouse at the time of the fire.

(a) Firstly, as regards the works performed near the Chery Car, the Plaintiff failed to particularise just what “works” it had in mind. Given that these works would not have been performed on the Chery Car (but “near” it), it was unclear if the Plaintiff was referring to works on other vehicles, or perhaps some other type of non-vehicle-related works. In the absence of any particularisation, this aspect of the Plaintiff’s claim could not be meaningfully ruled upon.

(b) Further, even if we were to focus on works performed on the Chery Car itself, the Plaintiff’s position on the nature of these “works” was vague and at times self-contradictory. In its submissions, the Plaintiff suggested that the Defendant’s employees were performing scrapping, which would in turn require hot works that necessarily heightened the risk of a fire. ¹²¹ I rejected this. Firstly, the Plaintiff’s own expert, Mr Cheam, had ruled out the prospect of hot works having been conducted. Mr Cheam’s 2nd Report stated categorically that: ¹²²

There was also no suggestion that any other vehicles near the Chery Car might have been undergoing hot works. Furthermore, while tools had been found near the Chery Car in the fire’s aftermath (see [14(b)] above), the Plaintiff did not explain if any of them might have been employed for hot works.

100 In light of my view that the fire was most likely caused by an electrical fault within the Chery Car (see [88] above), the pertinent question should focus on what sort of works by the Defendant’s employees might have allowed such an electrical fault to trigger combustion. In this respect, Mr Cheam postulated that the Defendant’s employees might have been working on the Chery Car’s engine compartment and said that such works could cause petrol leakage, electrical arcing and the generation of a hot surface, whereby the leaked petrol might then have ignited upon contact with electrical arcing, sparking or the hot surface. ¹²³ When I asked Mr Cheam if he could explain the type of works he had in mind that might result in such an occurrence, he said that it could be “repairs or maintenance or whatever that is” which would require the Chery Car’s bonnet to be opened. ¹²⁴

101 I found the Plaintiff’s case on this point to be problematic. As explained at [97] above, a plaintiff seeking to satisfy the second requirement for invoking res ipsa loquitur must identify some act or omission by the defendant which could have caused the fire. Further, if that act or omission increased the risk of occurrence of fire, the court is more likely to invoke res ipsa loquitur: see Grace Electrical Engineering at [47] and [50]. It was difficult to see why opening a vehicle’s bonnet and performing (to use Mr Cheam’s words) “repairs or maintenance or whatever that is” should be construed as increasing the risk of a fire. This should be contrasted with the facts of Grace Electrical Engineering (summarised at [14] of the Court of Appeal’s decision) where the defendant had embarked on a legally prohibited course of conduct that clearly bore a proximate correlation with fire risk. The defendant in that case had, in breach of fire safety legislation, converted part of its premises into living quarters for its workers. As a result, the area was littered with electrical appliances and wiring. There were also large quantities of combustible materials, with no fire extinguishers on site. The workers even performed cooking on the premises, notwithstanding that they had no business being there in the first place. This state of affairs persisted despite repeated warnings from SCDF. It was also not disputed in that case that cooking activities were ongoing at the time the fire started. One could thus see why, on the facts of Grace Electrical Engineering, the defendant was regarded by the court as having engaged in conduct which increased the risk of a fire. In contrast, no such activity was discernible in the present factual matrix. Any repair and maintenance works performed under the bonnet of a vehicle plainly fell within the realm of business which parties to the Tenancy Agreement contemplated that the Defendant could engage in. This meant that even if the Defendant’s employees had been performing such works on the Chery Car or on any other vehicle in the Warehouse at the time of the fire, they were simply doing what they were supposed to do. This could not, in and of itself, be classified as an act or omission which increased the risk of a fire.

102 The Plaintiff sought to emphasise the fact that any such works would, as did the conduct of the defendant in Grace Electrical Engineering detailed in the preceding paragraph, constitute a serious regulatory breach. Specifically, such works would have contravened the Circuit Breaker restrictions on business activities: see item (viii) of [78] above. In my view, this was a red herring. The focus of the analysis is on whether the act or omission concerned increased the risk of a fire. On the present facts, any breach of the Circuit Breaker measures would have borne no relation to fire risk – that risk would have been the same regardless of whether the works were done during the Circuit Breaker or in some other period. While any breaches of the Circuit Breaker measures would be dealt with firmly under the relevant regulatory framework, they did not (in terms of enhancing fire risk) stand on the same footing as the regulatory breaches in Grace Electrical Engineering, which involved the infringement of fire safety legislation and clearly increased the risk of a fire.

103 In any case, I found that the Plaintiff had failed to adduce sufficient evidence to establish that the Defendant’s employees had indeed been performing any works, whether on the Chery Car or on any other vehicles within the Warehouse, at the time of the fire, for the reasons which follow.

104 The Defendant flatly denied that its employees were working on any vehicles in the Warehouse at the time of the fire. ¹²⁵ The Defendant maintained that on the evening of the fire, its employees were at the Warehouse merely to take possession of deregistered vehicles being delivered to the Property, with a view to storing them in the Warehouse. ¹²⁶ In his oral testimony, Ganapathy explained that even during the Circuit Breaker, vehicles continued to be delivered to the Property ¹²⁷ and it was not open to the Defendant to simply turn them away. ¹²⁸ Further, the vehicles which had been delivered needed to be moved into the Warehouse for storage, failing which they could cause obstructions. ¹²⁹ The Defendant’s position was that while performing any works on the vehicles would have run afoul of the Circuit Breaker’s restrictions, ¹³⁰ simply taking delivery of these vehicles and stowing them away to avoid obstruction was permitted. ¹³¹

105 The Plaintiff sought to refute the Defendant’s denial by highlighting a variety of factors which purportedly supported the inference that the Defendant’s employees must have been working on the Chery Car or some other vehicle in the Warehouse at the time of the fire:

(a) First, the presence of tools near the Chery Car indicated that the Defendant’s employees must have been working on or near it when the fire started.

(b) Second, SCDF’s Report contained an explicit statement that Ganapathy was “working” when the fire started – this clearly must have been relayed by Ganapathy himself when he was being interviewed by SCDF, thereby affirming the conclusion that he was working in the Warehouse at the time of the fire.

(c) Third, the Defendant’s explanation for why its employees were at the Warehouse on the evening of the fire – particularly its account of the timing at which they arrived at the Warehouse – was inconsistent.

(d) Fourth, Zhang Jinhai (a mechanic working for the Plaintiff’s related company, E K Ang: see [10] above) testified that on the day of the fire, he heard sounds of acceleration and/or the movement of machines emanating from the Warehouse.

(e) Finally, the fact that fuel was leaking from the Chery Car at the time of the fire (see [10] above) was consistent with someone having worked on it just prior to the fire.

106 In my view, these factors, whether taken individually or in combination, were not sufficiently probative of the Defendant having worked on the Chery Car (on any other vehicle in the Warehouse) at the time of the fire.

107 My reasons for this conclusion are set out below.

108 As explained at [14(b)] above, various tools were found near the Chery Car and forklift in the aftermath of the fire. Arising from the presence of these tools, the experts in this case drew the following conclusions:

(a) In Mr Cheam’s 2nd Report, he opined that the location in which these tools were found was “odd”, as one would have expected them to be properly kept aside. ¹³² Mr Cheam’s 2nd Report had thereby concluded that the possibility of the Defendant’s employees working on the Chery Car at the time of the fire could not be ruled out. ¹³³ This opinion had then hardened into a conclusive statement in Mr Cheam’s AEIC, where he affirmed that “[w]orkers were working at or before the material time of the fire, as tools were found near the front of Chery [Car]” ¹³⁴ [emphasis added].

(b) Mr Brown similarly suggested that “the presence of the tools directly below where the vehicle may have been, would indicate previous, or an intention to, work on the car prior to the fire.” ¹³⁵

109 At the outset, it must be pointed out that the question of whether these tools were suggestive of works having been performed on the Chery Car was a factual inference, for which the court did not require either Mr Cheam or Mr Brown to weigh in on. In any case, Mr Cheam qualified under cross-examination that in drawing his conclusion about the tools, he was merely canvassing a possibility and he would not know for sure whether the Defendant’s employees were in fact working on the Chery Car ¹³⁶ (although I note that this was somewhat contrary to the unequivocal tone of the affirmation in his AEIC that the Defendant’s employees “were working”). Mr Brown similarly qualified in his oral testimony that it was speculative to say whether the presence of the tools meant that works were being done on the Chery Car. ¹³⁷

110 As regards the Defendant’s explanation for the tools, Ganapathy surmised that they may well have already been on the floor because the relevant spot where they were found was where the Defendant worked on vehicles before the Circuit Breaker came into effect. ¹³⁸ He also canvassed another possibility, being that the tools may have been on the forklift and fell to the ground when he was hoisting the Chery Car into the air. ¹³⁹

111 In my opinion, the presence of the tools on the floor was neither here nor there. Rather, one needed to look at the broader picture to see if the Defendant could indeed have been working in the Warehouse at the time of the fire. In this respect, the fact that the fire happened on a day that was deep within the heart of the Circuit Breaker was relevant. I accepted the Defendant’s explanation that its employees were unlikely to have been performing any works on the vehicles given the prospect of regulatory prosecution. ¹⁴⁰ To that end, I agreed with the Defendant’s observation that any such vehicular works would have been easily detected.140 There were roller shutter entrances on three of the Warehouse’s four walls – the north, the east and the west walls (see the diagram at [12] above, where the roller shutters are denoted by the dotted lines). The undisputed evidence was that the roller shutters were always open, ¹⁴¹ even during the Circuit Breaker ¹⁴² (although parties disputed whether the roller shutters were kept open for the Defendant’s own convenience or at the behest of the Plaintiff ¹⁴³ ). In fact, Mr Cheam’s 1st Report went further to say that the Warehouse had no roller shutters and the entrance was open. ¹⁴⁴ All of this tied in with Paulraj’s evidence that anyone within the Property, including the Plaintiff’s employees and the workers in the dormitory, could walk around as the area was “very open”. ¹⁴⁵ Under such circumstances, it did appear unlikely that the Defendant’s employees would have ventured to work on the Chery Car at the relevant time.

112 Furthermore, Mr Cheam’s 1st Report had recorded Ganapathy’s explanation that when the fire was first discovered, Ganapathy and Mani were standing at the west entrance to the warehouse (ie, the entrance at the left of the diagram at [12] above). This would have been some distance away from the Chery Car, which at the time of the fire was situated to the right of the diagram at [12] above, specifically at the red circle. Ganapathy’s explanation thus detracted from the suggestion that he and Mani were working at or near the Chery Car when the fire started, as they were some distance away from it. Ganapathy’s explanation, which was provided by him during an interview conducted six days after the fire, ¹⁴⁶ was captured in the following section of Mr Cheam’s 1st Report: ¹⁴⁷

Mr Cheam was thus cross-examined on the conclusions in Mr Cheam’s 2nd Report, to the effect that the Defendant’s employees were possibly working on the Chery Car at the time of the fire. Specifically, Mr Cheam was confronted with how this conclusion could have cohered with the section from Mr Cheam’s 1st Report, extracted immediately above. In response, he conceded that in drawing the conclusions in Mr Cheam’s 2nd Report (about the Defendant’s employees working on the Chery Car at the time of the fire), he might have “overlook[ed]” Ganapathy’s explanation, as captured in the section of Mr Cheam’s 1st Report extracted above. ¹⁴⁸ Mr Cheam also agreed that had he not omitted to take Ganapathy’s explanation into consideration, the conclusions in Mr Cheam’s 2nd Report “would have been different”. ¹⁴⁹

113 I should add that I was inclined to give a little more weight to Mr Cheam’s 1st Report than Mr Cheam’s 2nd Report. The former was far more contemporaneous, in terms of proximity in time to the fire, as compared to the latter. Mr Cheam’s 1st Report was based on interviews conducted barely a week after the fire and issued as early as 23 September 2020, when he was still acting for the fire insurance company. In contrast, Mr Cheam’s 2nd Report was issued much later, on 13 March 2024, long after Mr Cheam came on board as the Plaintiff’s expert.

114 Looking at the evidence in totality, I thus found that the mere presence of the tools was not sufficiently probative of the Defendant’s employees having worked on the Chery Car at the time of the fire.

115 To further buttress its submission that the Defendant’s employees were working on the Chery Car when the fire started, the Plaintiff highlighted the following section of SCDF’s Report, where the reference to Ganapathy “working” appeared twice: ¹⁵⁰

The Plaintiff submitted that the above statements in SCDF’s Report could only have been relayed by Ganapathy himself, when SCDF was interviewing him. ¹⁵¹

116 Mr Cheam relied on the statement in SCDF’s Report (that Ganapathy was “working”), coupled with the presence of the tools on the ground, to draw the conclusion that the Defendant’s employees may have been working on the Chery Car at the time of the fire. ¹⁵² However, I noted that this conclusion, which was expressed in Mr Cheam’s 2nd Report, failed to properly account for what was captured in Mr Cheam’s 1st Report. Specifically, Mr Cheam’s 1st Report recounted how, notwithstanding the presence of the tools, the Defendant informed him that no work was conducted at the material time as the Defendant had to close for the Circuit Breaker period: ¹⁵³

There was nothing in Mr Cheam’s 1st Report to gainsay this explanation. In my view, Mr Cheam’s 2nd Report should not have simply focused on the statement in SCDF’s Report (ie, that Ganapathy and Mayavel were “working”) to support his conclusion that the Defendant’s employees may have been working on the Chery Car at the time of the fire, without also highlighting the Defendant’s side of the story captured in Mr Cheam’s 1st Report (extracted above) that no work was carried out during the Circuit Breaker period. In bringing only part of the picture to the fore, Mr Cheam’s 2nd Report failed to paint a sufficiently balanced picture when it concluded that the Defendant’s employees may have been working on the Chery Car when the fire started.

117 Even if I were to focus solely on the statement in SCDF’s Report (that the two men were “working”), I did not think that it justified the Plaintiff’s conclusions, for the following reasons:

(a) From a plain reading, SCDF’s report did not say that Ganapathy or any of the Defendant’s other employees were “working” on the Chery Car. In fact, it made no mention of the Defendant’s employees “working” on any motor vehicle in the Warehouse.

(b) Ganapathy had also explained that the statement in SCDF’s Report may have arisen from a misunderstanding, given that the interview was conducted in English, ¹⁵⁴ a language that he understood only “a bit” of. ¹⁵⁵ Ganapathy testified that he perceived the SCDF officer interviewing him as asking if he worked for the Defendant, to which Ganapathy replied in the affirmative. ¹⁵⁶ Ganapathy maintained that he never told the SCDF officer that he was “working” at the time of the fire. ¹⁵⁷ I was unable to discount Ganapathy’s explanation that there may have been some miscommunication with the SCDF officer interviewing him. That SCDF officer was not called to contradict Ganapathy’s explanation. I also found that Ganapathy’s explanation pertaining to his lack of proficiency in the English language, cohered with the fact that both Ganapathy and Mayavel gave their testimonies in court with the aid of a Tamil interpreter.

118 Given the considerations above, there was simply no scope for the Plaintiff to place any meaningful weight on the word “working” in SCDF’s Report when attempting to draw the inference that the Defendant’s employees were working on the Chery Car at the time of the fire.

119 The Plaintiff also sought to attack the credibility of Ganapathy’s evidence by pointing to inconsistencies in his account of how long he had been at the Warehouse, just prior to the fire.

120 As set out in the extract of Mr Cheam’s 1st Report at [112] above, Ganapathy and Mani went to the Warehouse on the evening of the fire at approximately 4:30pm. The fire started about two hours after that, at around 6.30pm. At trial, the Plaintiff attempted to elicit from Ganapathy what happened during this two-hour window. When asked just how many vehicles were delivered to the Property that evening, Ganapathy replied that he could not remember. When the Plaintiff’s counsel pressed him on this, Ganapathy hazarded that it could have been two or three vehicles ¹⁵⁸ (this did not include the Chery Car, which would have been stowed in the Warehouse since as early as 19 days before the fire: see [7] above). Ganapathy further explained that it took about 10–15 minutes to bring a vehicle into the Warehouse and stow it – this would include conducting the necessary administrative checks on the vehicle before storage ¹⁵⁹ – and that this duration could stretch to 20–25 minutes if there was any issue with starting the vehicle. ¹⁶⁰ Plaintiff’s counsel had then pointed out to Ganapathy that the numbers did not add up: spending 10–25 minutes to stow two or three vehicles in the Warehouse would mean that if Ganapathy had indeed arrived at the Warehouse at 4.30pm, he should have been done stowing the vehicles in the Warehouse by 5.30pm. As such, why was he still present in the Warehouse when the fire was spotted at 6.30pm? When confronted with this, Ganapathy clarified that he might have arrived at the Warehouse after 5pm, rather than at 4.30pm (as reflected in Mr Cheam’s 1st Report). ¹⁶¹ The Plaintiff thus submitted that Ganapathy had contradicted what he said during his interview by Mr Cheam, as captured in Mr Cheam’s 1st Report. ¹⁶²

121 In my view, the Plaintiff failed to adequately demonstrate why and how this discrepancy in timing advanced its case. Presumably, the Plaintiff’s point was that the timing in Mr Cheam’s 1st Report should be taken as correct, meaning that Ganapathy had been at the Warehouse for two hours when the fire started, and that such a duration was more consistent with Ganapathy performing works on the vehicles rather than simply storing them. However, I did not think that the margin of error in the timing was sufficiently significant for any adverse inferences to be drawn against Ganapathy’s evidence on this point. After all, Ganapathy did qualify that he was unable to remember just how many vehicles were delivered to the Warehouse on the evening of the fire. ¹⁶³ Without verification of this variable, it was difficult to accord any significant weight to the Plaintiff’s projections in timing, given that a difference of a few vehicles could have shifted the balance either way.

122 The Plaintiff also relied on testimony of Zhang Jinhai, an employee of E K Ang (see [10] above), who affirmed that he heard acceleration sounds and/or movements of machines coming from the Warehouse on the day of the fire. ¹⁶⁴ During cross-examination, Plaintiff’s counsel put Zhang Jinhai’s testimony to Ganapathy and suggested that such sounds were heard “throughout the day”. Ganapathy disagreed. ¹⁶⁵

123 In my view, Zhang Jinhai’s evidence did not sufficiently assist the Plaintiff’s case. Firstly, he did not pin down the time of the day at which he heard the sounds, eg, whether it was anywhere near the time that the fire was discovered. I noted that Plaintiff’s counsel had suggested to Ganapathy that the sounds were heard “throughout the day” by “one of the witnesses”. ¹⁶⁶ However, this was a bald assertion from the bar, as none of the witnesses gave evidence to this effect. Zhang Jinhai also did not specify the rough location within the Warehouse from which the sounds came from, eg, whether they emanated from anywhere near the spot where the fire started (being the red circle in the diagram at [12] above). Zhang Jinhai’s description of the sounds (acceleration and movement of machines) was also too vague for me to attribute them to any class of works that might have increased the risk of a fire.

124 More importantly, none of the workers on the premises, including Zhang Jinhai, saw the Defendant’s employees working on any vehicle in the Warehouse. This was noteworthy, given Paulraj’s testimony that the Property was “very open” – to the point that the Plaintiff’s employees and the workers in the dormitory could walk around (see [111] above). As all the entrances to the Warehouse were exposed, anyone within the Property could have peered in to see what the Defendant was doing. If the works had indeed generated sounds “throughout the day” (as suggested by Plaintiff’s counsel), when this was supposed to have been the heart of the Circuit Breaker period, it was remarkable that the Plaintiff was unable to produce even a single eyewitness who might have come to see what was generating the sounds in the Warehouse.

125 As described at [10] above, flammable liquid had leaked from the Chery Car when Ganapathy raised it with the forklift. Mr Cheam explained that for this leak to have occurred, the vehicle’s fuel pump must have been in operation to generate sufficient pressure in the fuel lines. He further opined that the fuel pump could not have generated such pressure if the Chery Car’s ignition key had been in the “Off” position. Consequently, Mr Cheam attributed the petrol leakage observed by Ganapathy to either of the following two causes: ¹⁶⁷

(a) the Chery Car’s ignition had been in the “On” position at the time of the fire; or

(b) the engine had been started “just prior to” ¹⁶⁸ the fire.

That both these causes were being proposed in alternative was reinforced by Mr Cheam’s confirmation that even if the engine had not been started, the mere act of leaving the ignition key in the “On” position could still generate pressure in the fuel lines and cause the leak. ¹⁶⁹

126 Building on Mr Cheam’s opinion above, the Plaintiff reasoned that as the Chery Car had been stowed in the Warehouse for 19 days prior to the fire (see [7] above), there would have been little reason for someone to switch its ignition key to the “On” position, or for its engine to have been started, unless the Defendant’s employees had been performing maintenance and repairs on it at the time the fire started.

127 However, I note that the inference which the Plaintiff sought to draw from Mr Cheam’s evidence suffered from a critical flaw: just because the ignition key was in the “On” position did not necessarily mean that the Defendant’s employees had been working on the Chery Car. It was perfectly possible for the Chery Car to have been stored in the Warehouse with the ignition key still in the “On” position, without anyone ever having worked on it over the 19 days leading to the fire. Such a possibility was entirely consonant with the observations in Mr Cheam’s reports that some of the undamaged vehicles in the Warehouse were similarly found with their ignition keys in the “On” position ¹⁷⁰ – there was no suggestion that the Defendant was also working on all these other vehicles at the time of the fire.

128 The Plaintiff could surmount this flaw in its reasoning if it could show that the ignition key of the Chery Car had been in the “Off” position at the time of the fire. By ruling out cause (a) in [125] above, that meant that the only reason for pressure to have accumulated in the Chery Car’s fuel lines would have been cause (b), ie, the Defendant’s employees must have started the Chery Car’s engine “just prior to” the fire. This might then place the Plaintiff in a slightly better vantage point to advance the suggestion that the Defendant’s employees must have been working on the Chery Car at the time of the fire, on account of them having no reason to start its engine unless work was being done. However, any suggestion by the Plaintiff that the Chery Car’s ignition had been in the “Off” position would have met significant challenges:

(a) Firstly, Mr Cheam’s 1st Report explained that the Chery Car’s ignition key could not be located. ¹⁷¹ This meant that the Plaintiff was in no position to speculate whether the ignition key had been in the “Off” as opposed to the “On” position. ¹⁷² In this respect, Ganapathy was also unsure if the Chery Car’s ignition key had been in the “On” position. ¹⁷³ In fact, he was not even able to confirm if the ignition key was within the Chery Car’s cabin. ¹⁷⁴

(b) Secondly – and this was the more critical point – the stance which the Plaintiff had repeatedly pressed throughout the trial was that the Chery Car’s ignition key was in the “On” (and not “Off”) position. ¹⁷⁵

129 In any case, even if I were to rule out cause (a) in [125] above and proceed on the premise that the Chery Car’s ignition key was in the “Off” position, this did not necessarily mean that cause (b) in [125] above (ie, that the Defendant’s employees started the Chery Car’s engine “just prior to” the fire) must have been operative, as Mr Cheam would suggest. Mr Cheam had expressly qualified his opinion about how pressure may have accumulated in the Chery Car’s fuel line, saying that his views depended on the make and model of the vehicle. ¹⁷⁶ Specifically, Mr Cheam confirmed that he did not know the make and model of the Chery Car ¹⁷⁷ and caveated that there were certain makes and models for which his conclusions as to the accumulation of pressure in the fuel lines may not hold true. ¹⁷⁸ With such a material proviso, I did not think it was safe to place much weight on Mr Cheam’s opinion about how pressure may have accumulated in the fuel lines of the Chery Car due to its engine being started “just prior to” the fire.

130 Mr Cheam’s opinion on this point had to be contrasted with that of Mr Brown, who had used the information in SCDF’s Report pertaining to the Chery Car’s deregistration date ¹⁷⁹ to trace the model of the Chery Car ¹⁸⁰ and retrieve the vehicle manual. Armed with this information, Mr Brown disagreed with Mr Cheam’s opinion about how fuel pressure would be present in the fuel lines only if the ignition key was switched on or if the engine had been running just prior to the incident. ¹⁸¹ Instead, Mr Brown explained that any pressure generated in the fuel lines from switching the engine on could well remain for weeks or even months. ¹⁸² This was not challenged by the Plaintiff.

131 Consequently, I could not agree with the Plaintiff’s suggestion that the fact that petrol had leaked from the Chery Car at the time of the fire necessarily suggested that its engine must have been switched on just prior to the fire. Pressure could have remained in the Chery Car’s fuel line for a substantial duration leading up to the fire, even if the Chery Car’s engine had been untouched throughout. The leakage of fuel thus did not support the claim that the Defendant’s employees were working on the Chery Car just prior to the fire.

132 In conclusion, the Plaintiff was not entitled to rely on res ipsa loquitur. The Plaintiff failed to establish the second requirement for invoking this evidential rule, ie, that the accident would not have happened in the ordinary course of things if proper care had been taken. There was nothing to show that the Defendant might have done anything to increase the risk of a fire. In fact, all the experts agreed that an electrical fault could arise within a vehicle, even if the engine had been switched off. Further, the Defendant adduced evidence that it was not conducting hot works, or any works for that matter, on the Chery Car or on any other vehicle in the Warehouse just prior to the fire. The Plaintiff’s evidence failed to sufficiently prove otherwise. Furthermore, even if the Defendant had been working on vehicles in the Warehouse, these would have been works that it was legitimately entitled to carry out under the Tenancy Agreement – the Plaintiff could not demonstrate why such works should be regarded as an escalation of fire risk that supported invoking res ipsa loquitur.

133 The Plaintiff thus had to prove that the Defendant breached its duty of care by causing the fire to start, without the aid of the evidential rule in res ipsa loquitur. Having looked at the evidence adduced, I was not satisfied that the Plaintiff succeeded in discharging that burden. There was simply nothing to show that the Defendant had been in any way responsible for starting the fire.

134 The following section canvasses the breaches pertaining to the Defendant’s alleged failure to adequately prevent the spread of the fire. The items listed at [78] which relate to this alleged failure can very broadly be categorised under the following three headings:

(a) Storing the vehicles within the Warehouse in a manner that facilitated the spread of the fire.

(b) Failing to have effective and adequate firefighting equipment at the Warehouse to put the fire out immediately.

(c) Failing to take immediate and effective steps to extinguish the fire when it was first discovered and prevent its spread to other parts of the Warehouse.

135 In my view, none of the Plaintiff’s claims in respect of these categories of breaches was supported by the evidence. Each of these categories are addressed in turn below.

136 Firstly, the Plaintiff claimed that the Defendant had stored the vehicles within the Warehouse in a manner that facilitated the spread of the fire.

137 Before delving into this claim, I noted that one of the Plaintiff’s contentions was that the mere act of storing deregistered vehicles in the Warehouse (regardless of the manner of storage) constituted a breach of the Defendant’s duty of care in tort: see item (xi) at [78] above. In my view, that contention was a non-starter. As explained at [35] above, the Plaintiff consented to the Defendant storing deregistered vehicles in the Warehouse (such storage being a necessary corollary to the Defendant’s business of scrapping and exporting vehicles). I did not agree that the act of storing the vehicles in the Warehouse, being an act which the Defendant was contractually entitled to do, could in and of itself be construed as a breach of the Defendant’s duty to prevent the spread of fires. In this vein, it has been observed that where parties are in a contractual relationship, it would be unusual to find a duty of care in tort which imposes obligations stretching beyond that which the parties have already laid out between themselves pursuant to a contract: Deutsche Bank AG v Chang Tse Wen [2013] 4 SLR 886 at [51] (citing Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 at 107). It follows that the position taken by the Plaintiff, ie, that merely engaging in a contractually permitted course of business would constitute a breach of the Defendant’s (purported) tortious duty of care, must be rejected.

138 As regards the manner in which the vehicles were stored within the Warehouse, the Plaintiff contended that the vehicles were deposited in a state which created a fire hazard. ¹⁸³ The Plaintiff maintained that for the Defendant to abide by its duty to prevent the spread of fires, the Defendant should have taken the following precautionary steps prior to storing each vehicle:

(a) remove the petrol from the vehicle (the Plaintiff was referring to the removal of petrol from the petrol tank, rather than removal of the petrol tank itself): see items (ii) and (iii) at [78] above;

(b) remove the battery from the vehicle: see items (ii), (iii) and (iv) at [78] above; and

(c) remove the ignition key: see item (v) at [78] above.

It was undisputed that the Defendant failed to take these steps. Based on witness accounts, there were about 60 vehicles in the Warehouse that still had petrol in their tanks and their batteries connected as at the point of the fire. ¹⁸⁴ Further, as explained at [127] above, Mr Cheam’s reports stated that the keys of some of the vehicles in the Warehouse were still in the ignition, at the “On” position. ¹⁸⁵

139 I rejected the Plaintiff’s claim that these omissions constituted a breach of the Defendant’s duty to prevent the spread of fires:

(a) As regards the failure to remove the petrol from the vehicles stored in the Warehouse, I was unable to regard this as a breach of duty by the Defendant given the absence of any technical evidence that this was a fire hazard. As explained at [46(b)]above, there was no evidence of any industry practice mandating that fuel be siphoned out prior to the storage of vehicles. Goh himself saw no issue with the vehicles stored in the Warehouse having fuel in their tanks: see [44(b)] above.

(b) As regards the Plaintiff’s claim that the vehicles’ batteries should have been removed and the keys taken out of the ignition, the Plaintiff similarly failed to adduce evidence of any industry safety standard requiring such steps to be taken prior to storage. Further, the Circuit Breaker had been in force for over six weeks at the time of the fire – the Plaintiff failed to explain how the Defendant could have worked on the vehicles to remove their batteries without flouting the Circuit Breaker restrictions.

140 The Plaintiff also claimed that the fire managed to spread because the Defendant failed to maintain effective and adequate firefighting equipment at the Warehouse premises: see item (xviii) at [78] above.

141 I rejected this claim, as there was nothing to suggest that the failure to extinguish the fire arose from any want of firefighting equipment on the Defendant’s part. As I had explained at [62] above, evidence was adduced at trial of the following:

(a) The Defendant had at least six fire extinguishers on the premises, including the type used to fight fires caused by flammable liquids.

(b) At the time of the fire, the Defendant’s employee Mani ran out with a fire extinguisher to fight the fire.

(c) SCDF’s Report found that in the aftermath of the fire, several spent fire extinguishers were found next to the Chery Car.

142 These facts were at the very least consistent with the Defendant having fire extinguishers in the Warehouse compounds.

143 The Plaintiff further contended that the Defendant failed to take immediate and effective steps to extinguish the fire and prevent its spread to other parts of the Warehouse: see items (vii), (xii) and (x) at [78] above. Specifically, the Plaintiff contended that the Defendant’s failure occurred on two fronts.

(a) Ganapathy’s use of the forklift to hoist the Chery Car, when his first course of action should have been to use a fire extinguisher to put out the fire at the Chery Car’s undercarriage: see item (ix) at [78] above.

(b) Mayavel’s attempt to extinguish the fire with a water hose, when water was a wholly inappropriate medium for tackling a fire fuelled by flammable liquids.

Each of these claims is explored below.

144 Ganapathy’s first reaction upon spotting the fire beneath the Chery Car was to hoist the vehicle with a forklift. However, this resulted in petrol leaking from the Chery Car and igniting. It was only after this happened that the Defendant’s employee Mani used a fire extinguisher to fight the fire. ¹⁸⁶ The Plaintiff thus claimed that Ganapathy’s use of the forklift on the Chery Car was wrong and served only to accelerate the fire. The Plaintiff contended that what Ganapathy should have done first was to use a fire extinguisher to put out the flames. ¹⁸⁷ This position was also echoed in Mr Cheam’s 2nd Report, where he opined that Ganapathy’s use of the forklift was “not appropriate”: ¹⁸⁸

145 Having the benefit of hindsight, I agree that it was plausible that Ganapathy’s use of the forklift had in fact facilitated the fire’s spread. However, that did not mean that his actions necessarily constituted a breach of the Defendant’s duty of care. Despite bearing the burden of proving the Defendant’s negligence, the Plaintiff failed to adduce any evidence (particularly expert evidence) showing why Ganapathy’s actions should be regarded as falling below the standard of a reasonable man. The statement in Mr Cheam’s 2nd Report, extracted above, was no more than a bare allegation that Ganapathy should not have done what he did. In making that allegation, Mr Cheam failed to explain why he viewed Ganapathy’s use of the forklift as inappropriate. It was not possible to discern the error of Ganapathy’s ways when looking at SCDF’s Report which, although alluding to the use of the forklift to “mitigate … the fire”, ¹⁸⁹ contained no allusion as to whether this was an improper measure. Adrian Brown had similarly alluded to how Ganapathy’s use of the forklift may have exacerbated the fire, eg, by possibly fracturing a fuel line, but he was quick to qualify in the very next line of his report that “[t]his is not intended as any criticism of the actions of the workers in that regard”. ¹⁹⁰

146 Given the specific nature of this case, I thought it was important for Mr Cheam to have explained his view that Ganapathy’s use of the forklift was inappropriate. When the fire was first spotted, it was burning beneath the Chery Car’s undercarriage. Ganapathy testified that he lifted the Chery Car with the forklift because the flames were below the engine. ¹⁹¹ This was therefore not necessarily a case of an exposed flame burning within plain line of sight, where one could simply grab hold of a fire extinguisher, point, and shoot at the base of the fire. If Mr Cheam’s contention was that spraying the flames underneath the Chery Car without first lifting it would have been any more effective, he should have explained why that was the case. The Plaintiff also did not solicit the views of the SCDF witness who testified at the trial (Maj Faizal), or of Mr Brown, as to the merits of using fire extinguishers without first lifting the Chery Car. Indeed, Ganapathy himself was not questioned on this.

147 It must also be stressed that this was not a situation where the forklift was deployed to the exclusion of fire extinguishers. A fire extinguisher was deployed by the Defendant’s employee (Mani) although, sequence-wise, this was done only after Ganapathy lifted the Chery Car. ¹⁹² The Plaintiff could thus not accuse the Defendant of failure to deploy fire extinguishers. As an aside, I noted that Plaintiff’s counsel had, in the course of cross-examining Ganapathy, suggested that the Defendant’s employees failed to use the correct type of fire extinguisher (ie, Type B) to fight the fire ¹⁹³ – this contention was nonetheless not pursued in the Plaintiff’s closing submissions.

148 I therefore found myself unable to agree with the Plaintiff’s contention that Ganapathy’s use of the forklift as his opening move in fighting the fire was necessarily a breach of the duty of care to prevent the spread of the fire.

149 Before dealing with the Plaintiff’s claim that Mayavel should not have attempted to extinguish the fire using water from the hose reel, there was an antecedent issue which had to be dealt with first: whether the hose reel was even working. As explained at [21] above, it was the Defendant’s case that when Mayavel tried to turn on the hose reel, no water came out. The Plaintiff, on its part, maintained that the hose reel was working and Mayavel was “jetting” the fire with water from the hose (see [9] above). As explained in the section below on the Defendant’s counterclaim, I preferred the Plaintiff’s evidence that the hose reel was working.

150 On the premise that water did come out of the hose reel, the Plaintiff contended that Mayavel’s use of water to fight the fire constituted a breach of the Defendant’s duty to prevent the spread of the fire. Specifically, the Plaintiff argued that the fire was fuelled by flammable liquids and water (from the hose) would only serve to promote its spread. ¹⁹⁴

151 In my view, the Plaintiff failed to establish that the use of the hose by Mayavel constituted negligence on the Defendant’s part. Even if the act of spraying the fire with water was considered negligent in and of itself, there was no evidence that any of the Defendant’s employees engaged in that act. According to Mr Cheam’s 1st Report, there was only one person at the Warehouse jetting the fire with the hose – Mayavel ¹⁹⁵ – and he was not the Defendant’s employee. Mayavel’s evidence was that he was an employee of AJ Lighting & Electrical Service Pte Ltd (“AJ Lighting”) ¹⁹⁶ and that he happened to be at the Property only because he was residing at the dormitory. ¹⁹⁷ His testimony in this regard was consistent with the other evidence adduced at trial:

(a) Firstly, the Plaintiff’s own expert, Mr Cheam, had indicated in his report that Mayavel was an employee of AJ Lighting and not the Defendant. ¹⁹⁸ Mr Cheam’s 1st Report went so far as to append an image of Mayavel’s work permit, ¹⁹⁹ which plainly reflected the employer as AJ Lighting and not the Defendant. In contrast, the image of Ganapathy’s work permit appended to Mr Cheam’s 1st Report ²⁰⁰ reflected the Defendant as the employer.

(b) The Plaintiff sought to rely on SCDF’s Report, which captured Gabir as purportedly saying that one “Mayauel Lasaithambi” had been working for the Defendant for about two years. ²⁰¹ I did not think that anything turned on this. Preliminarily, I noted that SCDF’s Report failed to correctly spell Mayavel’s name (assuming the report was even intending to refer to him), spelling it as “Mayauel Lasaithambi” when the correct spelling should have been “Mayavel Asaithambi”. Further, Gabir had explained in his oral testimony that when speaking to SCDF about the Defendant’s employees, he may have been referring to Mani (who was the Defendant’s employee) rather than Mayavel (who was not), ²⁰² although Gabir ultimately said that he could not remember what he told SCDF. ²⁰³ Given the haziness in Gabir’s recollection, it would have been useful for the SCDF officer who interviewed Gabir to be called. However, this was not done. The only SCDF officer who was called, Maj Faizal, was unable to comment about whether Gabir’s answers had been properly captured in SCDF’s Report. ²⁰⁴ As such, the statement in SCDF’s Report was neither here nor there, leaving me unable to place any substantial weight on its description of “Mayauel Lasaithambi” as the Defendant’s employee.

The evidence thus did not justify a finding that Mayavel was the Defendant’s employee. Consequently, even if Mayavel’s act of spraying the fire with water could be considered negligent, the Plaintiff failed to show why that act should be imputed to the Defendant.

152 In any case, even if I were to impute Mayavel’s actions to the Defendant (notwithstanding that he was not the latter’s employee), there was no technical evidence to establish why his use of water from the hose should be regarded as negligent. None of the experts were asked any questions about whether water from the hose could have caused the fire to spread, as claimed by the Plaintiff. Nor were questions on this posed to SCDF’s Maj Faizal. The Plaintiff did not even pose questions to the factual witnesses that might have shed light on this point, eg, whether they saw the water spreading the flames.

153 I was consequently unable to conclude that Mayavel’s use of water to fight the fire constituted a breach of duty on the Defendant’s part.

154 The Plaintiff also raised various other instances of the Defendant allegedly breaching its duty of care. These were not particularly substantive and could be dealt with briefly.

155 Firstly, the Plaintiff contended that the Defendant should not have allowed its employees to work in the Warehouse during the Circuit Breaker period: see items (vi), (xiii) and (xiv) at [78] above. In my view, this did not constitute a breach of the Plaintiff’s duty to prevent the start or spread of the fire, as it bore no causal link to fire risk. As explained at [102] above, on the facts of the present case, the risk of a fire arising from what the Defendant’s employees were doing in the Warehouse would not have changed, regardless of whether the Circuit Breaker had been in effect.

156 Secondly, the Plaintiff claimed that the Defendant breached its duty by failing to procure the necessary insurance coverage. These included:

(a) Coverage which the Plaintiff claimed that the Defendant should have procured to insure the Plaintiff’s assets, ie, the Warehouse and its fixtures: see item (xvi) at [78] above.

(b) Coverage which the Plaintiff claimed that the Defendant should have procured to insure the Defendant’s assets within the Warehouse: see item (xv) at [78] above.

157 The Plaintiff’s submissions were unclear as to whether the Plaintiff was advocating that the procurement of insurance was a separate duty of care standing apart from the Defendant’s duty to prevent the start and spread of fires (which I found to exist). If there had been such a duty of care to procure insurance, the Defendant’s failure to do so would have constituted a breach. However, I saw no basis to impose any such duty in tort:

(a) As regards insurance to protect the Plaintiff’s assets, I explained at [68] above why it was not necessary, in the business or commercial sense, for such a term to be implied in contract. In a similar vein, the Plaintiff failed to demonstrate why, under the test in Spandeck, a relationship of such proximity existed as to warrant the imposition of this duty on the Defendant. After all, there was nothing to stop the Plaintiff from procuring its own insurance to protect the Warehouse, and thus no reason to hold the Defendant responsible for doing so.

(b) As regards insurance to protect the Defendant’s assets in the Warehouse, the Plaintiff similarly failed to show why such a duty should be imposed, especially since an identical obligation already existed under contract, in cl 15 of the Tenancy Agreement (see [65] above).

158 As for whether the omission to procure insurance breached the Defendant’s duty of care to prevent the start and spread of fires, the answer would have to be in the negative, given that the omission bore no connection with the start and spread of the fire in this case.

159 I accordingly dismissed the Plaintiff’s claims in tort. The only discernible duty of care which arose on the part of the Defendant was the duty to prevent the start and spread of fires. The Plaintiff was not able to point to any act or omission by the Defendant which breached that duty.

160 The Defendant’s counterclaim was premised on the allegation that no water came out of the hose when Mayavel tried to turn it on: see [21] above. The Defendant contended that the Plaintiff, as the landlord, was under a duty to maintain the firefighting equipment in the Warehouse. The Defendant further claimed that the duty extended to maintaining the hose reel which Mayavel had deployed – the hose reel being situated within the Warehouse. ²⁰⁵ According to the Defendant, this duty arose both under contract (as an implied term of the Tenancy Agreement ²⁰⁶ ) and in tort. ²⁰⁷ It was the Defendant’s case that the hose reel malfunctioned because the Plaintiff had breached this duty ²⁰⁸ and that in turn led to the failure to contain the fire. The Defendant thus counterclaimed for its losses sustained in the fire, ²⁰⁹ including the damage to its inventory and the loss of its forklift. ²¹⁰

161 The Plaintiff denied that it bore any duty to maintain the hose reel. In any event, the Plaintiff maintained that the hose reel was working and that Mayavel was actually jetting the fire with the hose.

162 The Defendant’s counterclaim thus hinged on the following issues:

(a) Which party bore the duty to maintain the hose reel?

(b) Was the hose reel working during the fire?

163 In my view, the Defendant failed to substantiate why any duty should be imposed on the Plaintiff, whether in contract or in tort, to maintain the hose reel.

164 In the realm of contract, I was unable to see why, under the test expounded in Sembcorp Marine (see the extract from the decision at [49] above), it would have been necessary in the business or commercial sense to imply a term into the Tenancy Agreement obliging the Plaintiff to maintain the fire-fighting equipment in the Warehouse. There was no evidence showing that it was an industry practice to place such an obligation on landlords of commercial properties. Certainly, there was nothing within the context of the relationship between the parties in this case to suggest that they intended to allocate responsibility for all fire-related safety issues to the Plaintiff (as landlord), especially since cl 6 of the Tenancy Agreement (extracted at [58(a)] above) placed the onus on the Defendant (as tenant) to “observe fire safety measures at all times”.

165 In terms of tort, the Defendant similarly failed to explain why, under the test in Spandeck (alluded to at [75] above), a duty of care to maintain the hose reel should be placed on the landlord at law.

166 I thus found that the Defendant failed to demonstrate why the Plaintiff should be held to owe a duty of care to maintain the hose reel.

167 Even if the Plaintiff was under a duty to maintain the hose reel, I found that such a duty would not have been breached on the facts as the evidence suggested that the hose reel was working.

168 The Defendant relied on the evidence of Mayavel, who testified that no water came out of the water hose when he tried to use it. ²¹¹ His testimony was corroborated by Ganapathy, who testified that he saw no water coming out of the hose reel while Mayavel held on to it. ²¹² In contrast, the Defendant relied on the eyewitness testimony of Zhang Jinhai, who testified that he did see an Indian man (presumably Mayavel) using a hose from which water was being sprayed. ²¹³

169 I accepted the Plaintiff’s evidence that the hose was working, for the following reasons:

(a) Firstly, Mr Cheam’s 1st Report stated unequivocally that Mayavel was jetting the fire with the hose: ²¹⁴

This statement would presumably have been gleaned from Mr Cheam’s interview with Mayavel, conducted on 28 May 2020, which was less than a week after the fire broke out. The statement in Mr Cheam’s 1st Report would thus have been highly contemporaneous.

(b) Secondly, the Defendant’s position simply did not cohere with SCDF’s Report. Mayavel claimed that he told SCDF that the fire hose was not working. ²¹⁵ Yet, SCDF’s Report made no mention of this, notwithstanding that it would have been a highly material fact. In fact, SCDF’s Maj Faizal specifically alluded in his oral evidence to a working public hydrant within the Warehouse, when he said: ²¹⁶

Maj Faizal was not probed any further on this.

(c) I also found the testimony of the Defendant’s witnesses on this point to be somewhat unconvincing. In his oral testimony, Ganapathy tried to corroborate Mayavel’s position by testifying that Ganapathy himself also tried to turn the hose on but, like Mayavel, he found that no water came out. ²¹⁷ Yet, this critical fact was not mentioned anywhere in Ganapathy’s AEIC.

170 It was also significant that the Defendant failed to address the court on the impact of cl 15 of the Tenancy Agreement on the counterclaim. This clause (extracted at [65] above) comprised two limbs:

(a) The first obliged the Defendant to take out fire insurance to protect its own property.

(b) The second absolved the Plaintiff of liability for damage to the Defendant’s property in the Warehouse arising from fire.

It was undisputed that the Defendant failed to procure the insurance required by limb (a) above, ²¹⁸ with the Defendant having made no attempt at trial to justify the failure. While this omission by the Defendant admittedly bore no relevance to the Plaintiff’s claim against the Defendant ²¹⁹ (see [65] above), the Defendant completely elided the issue of the legal impact which the omission would have on its counterclaim. In fact, when confronted with the Plaintiff’s contention that the counterclaim should be rejected in light of the Defendant’s failure to comply with cl 15, Paulraj appeared to concede this, saying that because of that failure, the Plaintiff was not responsible for fire damage sustained by the Defendant. ²²⁰

171 I would nevertheless observe that where a tenancy agreement obliges the tenant to procure insurance, the tenant’s failure to do so does not necessarily absolve the landlord of liability for losses which the landlord’s negligence causes the tenant, even if such losses might have been covered by the insurance that the tenant should have procured. This would particularly be the case if there is an absence of any indication that parties intended the insurance to inure to the benefit of the landlord (and not just the tenant): see Wisma Development Pte Ltd v Sing – The Disc Shop Pte Ltd [1994] 1 SLR(R) 749 (“Wisma Development”) at [31]-[34].

172 In my view, the more determinative limb in cl 15 is that in (b) at [170] above, which states unequivocally that the Plaintiff is not responsible for any damage caused by fire to the Defendant’s property in the Warehouse. Parties to a tenancy agreement are entitled to contractually allocate the risk of damage, including damage arising from any one party’s negligence. An example of this is seen in the case of Amarnath Thakral Enterprises Pte Ltd (formerly known as Amarnath Enterprises) Pte Ltd v Man Fai Tai Investment Pte Ltd) [1998] SGHC 271 (“Amarnath Thakral Enterprises”). The tenancy agreement in that case contained a provision, cl 4(i) (extracted at [15] of the decision), which stated:

As can be seen, cl 4(i) of the tenancy agreement in Amarnath Thakral Enterprises was drafted quite similarly to cl 15. Lai Kew Chai J observed that unlike the relevant clause in Wisma Development, which merely obliged the tenant to procure insurance, cl 4(i) went further and expressly absolved the landlord of liability. Lai J thus held (at [44]–[46]) that the tenant’s claim, which alleged that the landlord’s negligence had caused flood damage to the tenant’s property, could be defeated by the operation of cl 4(i):

173 In my view, if the Defendant had been serious about pursuing its counterclaim, it should have addressed the legal impact of cl 15 and demonstrated why that clause ought not to be construed as absolving the Plaintiff of its negligence (if any). The Defendant could, for example, have canvassed whether any principles governing the construction of contracts might have operated to restrict the exculpatory scope of cl 15. However, the Defendant’s submissions were entirely silent on this.

174 The Defendant also failed to plead the quantum of its losses, notwithstanding that this was an unbifurcated trial. ²²¹

175 Given the above, I dismissed the Defendant’s counterclaim in its entirety.

176 For the reasons above, I dismissed both the Plaintiff’s claims and the Defendant’s counterclaim, save that I allowed the Plaintiff’s claim for what it paid in respect of the stamp duty fee and penalty.

177 I will now hear the parties on the issue of costs.