1 The plaintiff’s late mother (“the deceased”) was the owner of a terrace house at Jalan Chengkek. The plaintiff, the sole executrix of the deceased’s estate, and other members of her family have lived there for many years.

2 The 2nd and 3rd defendants are husband and wife. They own the land and terrace house adjacent to the deceased’s property and have been neighbours with the plaintiff for more than 40 years. Sometime in 2013, the 2nd and 3rd defendants decided to undertake major reconstruction to their home and employed the 1st defendant, a construction firm, to rebuild their house. According to the plaintiff, a pre-condition survey report had been carried out by Forte Adjusters & Surveyors Pte Ltd (“Forte”) prior to the reconstruction works. While some stains and cracked tiles were observed, the deceased’s property appeared to be largely in satisfactory condition.

3 During the period of construction in 2014, defects, such as large cracks, appeared on the deceased’s property. The 2nd defendant was informed of the damage, and he conveyed the issues to the 1st defendant’s representative. In April 2014, the Building and Construction Authority of Singapore was notified of the complaint and sent an officer down to inspect the deceased’s property. The officer was of the view that the deceased’s property was not safe for occupation and advised the plaintiff and her family to move out.

4 Subsequently, the plaintiff engaged SYT Consultants Pte Ltd (“SYT”), a civil, structural and geotechnical engineering firm, to investigate the cause of the damage. SYT opined that the damage to the deceased’s property was caused by the “excessive differential settlement and tilting of [the 2nd and 3rd defendants’ property] as a result of its new erection work”. In the Statement of Claim, the cause of damage and structural failure is summarised as follows:

5 The plaintiff therefore commenced this action against the defendants.

6 Summons No 4593 of 2017 is an application by the plaintiff under O 14 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) for interlocutory summary judgment to be entered against the 2nd and 3rd defendants for damages to be assessed. The application is premised on the basis that the 2nd and 3rd defendants had breached a “non-delegable duty” not to interfere with the deceased’s right of support. Although certain allegations about admissions had been made, the plaintiff’s counsel clarified during the hearing that the admissions were not the basis for the application for summary judgment.

7 The plaintiff relies principally on the decision of the Court of Appeal in Xpress Print Pte Ltd v Monocrafts Pte Ltd and another [2000] 2 SLR(R) 614 (“Xpress Print”) and argues that the court had, in that case, held that a landowner had a right to support in respect of his buildings by neighbouring land which translated into a correlating duty on the part of the adjoining landowner not to cause damage to his neighbour’s land. The plaintiff argues that liability for breach of this right is a strict one. As the deceased’s property had been damaged by the construction activities procured by the 2nd and 3rd defendants, the plaintiff submits that the 2nd and 3rd defendants had clearly breached this duty. Since liability for breach of this right is strict, and the corresponding duty is non-delegable, the plaintiff seeks to enter summary interlocutory judgment on the plaintiff’s claim against the 2nd and 3rd defendants for damages to be assessed.

8 At the first hearing of this application, the 2nd and 3rd defendants submitted on the basis that the plaintiff was mounting her primary claim in negligence or nuisance. The 2nd and 3rd defendants’ core defence was hence that the 1st defendant was an independent contractor and that they had taken reasonable care in selecting the 1st defendant as the main contractor for the reconstruction works. This resulted in the parties submitting at cross-purposes. The confusion was not surprising as the plaintiff had initially pleaded that the 2nd and 3rd defendants had breached a “non-delegable duty of care” [emphasis added] in the Statement of Claim. Matters were only clarified subsequently during the hearing when plaintiff’s counsel stated that he was chiefly relying on the right of support in Xpress Print, which he submitted is a “distinct and separate right” independent from causes of action in negligence or nuisance. Parties were thus given an opportunity to address each other’s submissions head on. The Statement of Claim was also subsequently amended to delete the words “of care” so far as this concerned the 2nd and 3rd defendants’ alleged liability to the plaintiff to make clear that the plaintiff was not pursuing a cause of action in negligence against the 2nd and 3rd defendants. This is in contradistinction to the plaintiff’s claim against the 1st defendant, which is squarely in the tort of negligence.

9 As things stand, there is therefore no pleaded case against the 2nd and 3rd defendants in negligence though the plaintiff pleads in the Statement of Claim a further and alternative ground that the reconstruction of the 2nd and 3rd defendants’ house constituted nuisance against the deceased. While the plaintiff did not appear to rely on the tort of nuisance at the application for summary judgment, as will be seen in the analysis below, an action for the breach of the right of support in Xpress Print has been viewed by commentators as an action in nuisance. The plaintiff’s submission that the right of support she relies on in Xpress Print is separate and independent from nuisance or negligence is hence questionable.

10 Be that as it may, the 2nd and 3rd defendants’ position is that that the plaintiff has not shown a prima facie case for summary judgment. They submit that the plaintiff’s right to damages should be based either on the principles of nuisance or negligence. They also take the position that the fresh defects on the deceased’s property were not caused by the reconstruction works and that in any case, this is a matter that ought to be determined at trial after testing the expert evidence of parties. As the plaintiff has failed to show that all the elements of nuisance or negligence are made out, there is no prima facie case for summary judgment and the application ought to be dismissed.

11 This application raises interesting issues as to the nature and scope of right of support relied on by the plaintiff, its corresponding duty and the way in which that duty interacts with a non-delegable duty of care as recognised in the tort of negligence. In this decision, I will briefly consider the legal authorities establishing the right of support. I will then consider whether on the facts currently before the court, it can be said that the 2nd and 3rd defendants have infringed the plaintiff’s right such that the summary interlocutory judgment ought to be entered on the plaintiff’s claim against the 2nd and 3rd defendants.

12 The common law recognises that a landowner is entitled to a right of support for land in its natural state from the neighbouring land. Such a right is recognised as being a natural right, being an ordinary incident of ownership of land. However, once land is built on, it is no longer regarded as being in its natural state. What then is the position as regards the right of support of buildings from the neighbouring land? Prior to Xpress Print, the position in Singapore was similar to the position in England which had been laid down by the House of Lords in Charles Dalton v Henry Angus (1880–1881) 6 AC 740 (“Dalton v Angus”). In that case, the question before the House of Lords was whether “a right to lateral support from adjoining land could be acquired by 27 years’ uninterrupted enjoyment for a building proved to have been newly erected at the commencement of that time”. The House of Lord answered this in the affirmative, holding that the right of lateral support from adjoining land in respect of a building was a right in the nature of a positive easement, which could be acquired by the prescriptive period of 20 years’ uninterrupted enjoyment.

13 The decision in Dalton v Angus has been recognised as standing for the principle that a landowner may excavate his land with impunity prior to the prescriptive period of 20 years. Indeed, this proposition was adopted and followed in Singapore in the Court of Appeal of the Strait Settlements’ decision in Lee Quee Siew v Lim Hock Siew (1895–1896) 3 SSLR 80. This proposition appears in Lord Penzance’s judgment in Dalton v Angus, where he stated (at 804):

14 The Torrens system of land registration added a further layer of complication on the decision in Dalton v Angus. Section 46 of the Land Titles Act (Cap 157, 1994 Rev Ed) provided that the proprietor of registered land shall hold the land free from all encumbrances, liens, estates and interests except such as may be registered or notified in the land-register, subject to any subsisting easement which was in existence at the date on which the land was brought under the provisions of the Land Titles Act. The effect of this, so far as it concerned the law in respect of a building’s right of support from neighbouring land, was explained thus in Xpress Print (at [36]):

15 It is against this legal backdrop that the facts of Xpress Print came up for decision before the Court of Appeal. In that case, the first respondent engaged the second respondent, a firm of contractors, to construct an industrial building on its land. The appellant owned a building and the plot of land adjacent to the first respondent’s land. Prior to constructing the industrial building, the contractors erected a temporary retaining wall between the two plots of land to hold up the soil on the appellant’s land. Thereafter, they excavated the first respondent’s land to build a basement and the foundation for the industrial building. However, the retaining wall was inadequate as the contractors failed to follow the structural design provided by the engineers. This resulted in soil subsidence and substantial damage to the appellant’s property. The appellant sued the first respondent and the contractors for “damages and loss suffered as a result of the negligence, wrongful interference of support and nuisance” on the part of the first and second respondents.

16 Before the Court of Appeal, counsel for the appellant argued that the principle in Dalton v Angus was a legal anachronism and ought not to be followed. Relying on American, Australian, Canadian and New Zealand authorities, he submitted that the first respondent ought to be liable in negligence or nuisance for the damage caused, on the basis that this would be consistent with realities of an urban city. Thus, he urged the court to recognise that there ought to be a duty of reasonable care on landowners who carry out potentially damaging excavation works, and this duty ought to be a non-delegable one.

17 Having surveyed the authorities relating to the right of support in respect of buildings, the Court of Appeal found no hesitation in rejecting the existing approach (at [37]):

18 The Court of Appeal then turned to consider the various approaches it could take to recognise a duty on the part of a landowner to support his neighbour’s buildings. In this connection, it was held that whilst there was no objection in principle to adopting a negligence-based approach, the Court of Appeal observed that there was an additional factor to consider in Singapore due to the different land ownership regimes between registered and unregistered land. Adopting a negligence-based approach would, given the context of land ownership in Singapore, create an anomalous situation where in relation to unregistered land, the right of support would supersede the duty of care after the passage of 20 years, whereas in relation to registered land or buildings built on unregistered land that had not met the 20-year prescriptive period prior to being brought under the Land Titles Act, no easement would arise and the duty of care would continue in perpetuity (at [41]–[42]). Due to these differences, the Court of Appeal preferred to hold that landowners had a natural right of support in respect of his buildings from neighbouring lands once the building was erected (at [50]). This, it held, was based on the principle that landowners should use their property in such a manner as not to injure that of another. The Court of Appeal then went on to state (at [51]):

19 Relying on the case of Bower v Peate (1875–1876) 1 QBD 321 (“Bower v Peate”), the Court of Appeal then held that the duty on the landowner could not be disposed by delegation. On the facts, it was found that the first respondent had breached its duty to support the appellant’s property by causing its soil to be removed without sufficient additional means of support.

20 The principle in Xpress Print that a landowner has a duty not to cause damage to his neighbour’s land by excavating or otherwise removing his land without first securing additional means of support was applied in the subsequent High Court decision of Afro-Asia Shipping Company (Pte) Ltd v Da Zhong Investment Pte Ltd and others [2004] 2 SLR(R) 117. The plaintiff in that case owned a building at Robinsons Road. Subsequently, the first defendant who owned the neighbouring land and building decided to redevelop the premises. The first defendant employed the second defendant to demolish the premises. Thereafter, piling works were carried out by the third defendant. The plaintiff sued, alleging that the construction activities at the first defendant’s premises caused damage to its property, including cracks, soil subsidence and the tilting of their building.

21 Judith Prakash J (as she then was) found that the damage to the plaintiff’s property was caused by the second defendant’s demolition works. This resulted in the removal of the support that the first defendant’s land gave to the plaintiff’s building. Applying the principle in Xpress Print, Prakash J held the first defendant liable for the damage as the duty to support the plaintiff’s building could not be delegated. Prakash J further held that the first defendant was also liable under the duty established in Xpress Print for further damage caused by the third defendant’s piling works. Although the initial withdrawal of support manifested while the second defendant was demolishing the premises, the first defendant had a duty to ensure that the further piling works carried out by the third defendant did not aggravate the damage arising from the withdrawal of support or further interfere with the support of the plaintiff’s building.

22 Before turning to consider the facts of this case, a preliminary point that concerns the nature of an action for the breach of a right of support ought to be addressed. In Xpress Print, the Court of Appeal stated that the action for the breach of the appellant’s right of support was “akin to an action in nuisance” (at [52]). The measure of damages the Court of Appeal awarded was thus for all foreseeable losses suffered by the injured party as a result of the wrongful act. Though the Court of Appeal analogised an action for the breach of the right of support to an action in nuisance, commentators have appeared to categorise a breach of the right of support as a type of nuisance instead (see, for example, Principles of Singapore Land Law (LexisNexis, 3rd Ed, 2009) (“Land Law”) at para 20.14); Clerk & Lindsell on Torts (Sweet & Maxwell, 21st Ed, 2014) (“Clerk & Lindsell”) at paras 20–139 to 20–146; Tang Hang Wu, “The right of lateral support of buildings from the adjoining land” (2002) Conveyancer and Property Lawyer 237 at p 257 (“Right of Lateral Support”); and Prakash Pillai, “The primacy of the principle of reciprocity in the Singapore land regime” (2001) SAcLJ 198 at p 201).

23 The plaintiff’s assertion that the right of support in Xpress Print is independent from nuisance is hence, in my view, misconceived. While this misconception is not fatal to the plaintiff’s claim, it does somewhat alter the complexion of its case. Given the remarks in Xpress Print and the commentary cited above, the subsequent analysis below on the right of support will proceed on the basis that an action for the breach of the right of support articulated in Xpress Print is either akin to an action in nuisance or is itself a type of actionable nuisance.

24 Having set out the legal principles on which the plaintiff’s application is premised, I now turn to consider whether summary judgment ought to be entered on the plaintiff’s claim against the 2nd and 3rd defendants.

25 The law relating to summary judgment is well-established. O 14 r 3(1) of the Rules of Court provides that judgment may be entered against a defendant if there is no issue or question in dispute which ought to be tried and there is no other reason why there ought to be a trial. In order to obtain summary judgment, the plaintiff must show that there is a prima facie case for summary judgment. If the plaintiff does so, the tactical burden shifts to the defendant to show that there is reasonable probability that there is a real or bona fide defence in relation to the issues. Having reviewed the evidence, the court would then enter judgment against the defendant only if the plaintiff has satisfied the court that there is no reasonable probability that the defendant has a real or bona fide defence in relation to the issues in dispute which ought to be tried (see Wee Cheng Swee Henry v Jo Baby Kartika Polim [2015] 4 SLR 250 at [35]–[38]).

26 In the circumstances, the plaintiff is first required to establish a prima facie case for summary judgment. This requires the plaintiff to prove that the 2nd and 3rd defendant, as owners of the adjoining land, had infringed the deceased’s right of support. It is clear from Xpress Print and Afro-Asia that as the legal principles in Singapore presently stand, the right of support entails a duty on the part of the neighbouring landowner “not to cause damage to his neighbour’s land by excavating or otherwise removing his land without first securing alternative means of support” (see Xpress Print at [51] and Afro-Asia at [59]). Both Xpress Print and Afro-Asia concerned cases where the adjoining landowner had excavated his land or demolished buildings thereby removing support for the claimant’s land or building which resulted in claimant’s property suffering damage. It would therefore appear that the right of support for land and buildings is a right not to have support for those land and buildings removed.

27 In the present case, the plaintiff’s case is not that the 2nd and 3rd defendant unduly removed support by excavation or other means without first securing alternative support for the deceased’s house. Rather, the plaintiff’s complaint is that the damage to the deceased’s property was caused by the additional load imposed by the construction of the 2nd and 3rd defendants’ house, and in particular, the allegation that the 2nd and 3rd defendants’ house was built in a way that caused it to tilt towards the deceased’s property (see the extracts of the Statement of Claim quoted above at [4]). Thus, even if the facts as pleaded were accepted as true, the present case is distinguishable from Xpress Print and Afro-Asia as it does not concern damage caused by the excavation of land or the removal of support per se but instead damage caused by the imposition of an additional lateral load on the deceased’s property as a result of the reconstruction of the 2nd and 3rd defendants’ house.

28 When this point was raised, counsel for the plaintiff acknowledged that his case did not fall squarely within the principle in Xpress Print. He then clarified that his essential submission was that the right of support as set out in Xpress Print ought to be taken one step further to cover the facts of the present case. In her written submissions, the plaintiff submits that the right of support and the attendant non-delegable duty ought to be “read to include all operations where injury would be caused to adjoining properties and not just to excavations”. In substance, the plaintiff’s position is that the court should, based on the principle in Xpress Print, recognise a broad non-delegable duty on the part of a landowner not to cause damage to his neighbour’s property, regardless of whether that damage was a result of excavations or other construction activities (hereinafter referred to as “the broad non-delegable duty”). Implicit in the plaintiff’s submission that the principle in Xpress Print ought to be extended is a recognition that the Court of Appeal in Xpress Print had not laid down a general duty on the part of landowners not to cause damage to their neighbours per se. In my view, this is clearly correct as there is no suggestion that in Xpress Print that the Court of Appeal intended to lay down such a broad and general legal rule apart from its holding in respect of the right of support.

29 In the premises, it is clear that even assuming the facts as pleaded were proved on a balance of probabilities, the plaintiff’s claim against the 2nd and 3rd defendants does not fall strictly within the four corners of the principle expounded in Xpress Print. In order for the plaintiff obtain summary judgment, she would have to make out a case that Singapore law ought to recognise the broad non-delegable duty in the tort of nuisance. This is the next issue which I turn to consider.

30 In urging the court to recognise the broad non-delegable duty, the plaintiff relies principally on the Latin maxim sic utere tuo ut alienum non loedas referred to by the Court of Appeal in Xpress Print. The Latin maxim translates to “use your property in such a manner as not to injure that of another”. It is useful to set out, at this juncture, the passage relied on in full (Xpress Print at [48]):

31 Based on the above passage, the plaintiff’s counsel submitted that the non-delegable duty Xpress Print should not be limited solely to situations involving excavation works or the removal of support, since there are various ways by which landowners could damage their neighbour’s land or building. As I understand the argument, the plaintiff’s submission is that the Latin maxim should be elevated to a legal rule, and that the court ought to adopt a wide interpretation of “use” and “injury” in interpreting that rule. Since the 2nd and 3rd defendants had used their property in a manner which caused injury to the deceased’s property, the 2nd and 3rd defendants ought to be liable to the plaintiff for the damages that resulted and could not rely on the fact that they had engaged the 1st defendant as an independent contractor to escape liability.

32 Apart from the Latin maxim, Mr Chew also referred to the English cases of Bower v Peate and George Martin Hughes v John Percival (1883) 8 App Cas 443 (“Hughes”) where it had been held that a landowner had a non-delegable duty not to cause damage to his neighbour’s property. Bower v Peate was a case involving excavation works. The defendant who owned the neighbouring house admitted that the contractor had been negligent in carrying out the excavation works, but contended that he was entitled to the benefit of the rule that he was not liable, as employer, for the negligence of the independent contractor. Cockburn CJ disagreed and stated the court’s judgment as follows (at 326–327):

33 In the plaintiff’s submission, the above holding is an application and elaboration of the Latin maxim. The plaintiff also puts forth the case of Hughes was an example where the principle in Bower v Peate had been applied in a case that did not involve excavation works.

34 The plaintiff and the defendant in Hughes owned adjoining houses, between which was a party-wall that was the property of them both. The defendant decided to reconstruct his house. In the course of the reconstruction, the defendant’s contractor negligently cut into the party-wall. This caused the defendant’s house to fall, and the fall of the defendant’s house dragged down the party-wall and damaged the plaintiff’s house. The House of Lords held that the defendant was liable to the plaintiff for the injury caused to the latter’s house. In this regard, the parties did not argue that the principle in Bower v Peate was inapplicable (see 451). Applying the principle, Lord Fitzgerald stated (at 455):

35 While Lord Blackburn doubted whether Cockburn CJ’s statement in Bower v Peate cited at [32] above was “not too broadly stated” (at 447), he similarly held that the defendant had a non-delegable duty to ensure that no damage was caused to the plaintiff’s property which the defendant had breached (at 445–447):

In the plaintiff’s submission, Xpress Print, Bower v Peate and Hughes supported the recognition of the broad non-delegable duty.

36 In my view, there are a number of obstacles to recognising a non-delegable duty on the part of landowners not to cause damage to their neighbour’s property in the manner contended for by the plaintiff. In the first place, it is not clear that all conduct as between adjoining landowners ought to be governed by an action in nuisance as opposed to an action in negligence. Indeed, the plaintiff did not cite any reason why the broad non-delegable duty ought to be imposed on landowners instead of a duty of care in negligence. It bears reiterating that even the Court of Appeal in Xpress Print held that there was no objection in principle to the application of negligence principles, save that it was not appropriate to do so in the context of the right of support because of the anomalous results caused by the difference between registered and unregistered land (see [18] above). In fact, the authors of Land Law have, in this connection, sounded a word of caution as regards the Court of Appeal’s extension of the natural right of support for land from adjoining soil to a right of support in respect of buildings from adjoining land (at paras 20.13–20.15):

37 Whilst the plaintiff cites the Latin maxim as justification for the recognition of the broad non-delegable duty, I do not find this compelling for two reasons. First, the Latin maxim has been criticised as lacking legal content. The remarks of Professor Tang in Right of Lateral Support are apposite (at p 254):

38 Second, and in any event, the Latin maxim of itself does not suggest that any duty to be imposed on landowners not to cause damage to his neighbour’s property as a result of construction activities ought to recognised as an aspect of property rights. Indeed, the recent decision of Ng Huat Seng and another v Munib Mohammad Madni and another [2017] 2 SLR 1074 (“Ng Huat Seng”) (a case cited by the 2nd and 3rd defendants) suggests that instead of recognising an absolute duty on adjoining landowners not to cause harm to each other’s property through construction activities, the law recognises a duty of care in the tort of negligence, subject to the application of established principles of negligence, such as the existence of a duty, breach of the duty, and causation of damage.

39 In Ng Huat Seng, the appellants and respondents owned neighbouring properties located along a slope. The appellants’ house was located on the lower part of the slope while the respondents’ house was located on the higher end. The two properties were separated by a boundary wall located between the two plots, and the building lines of the two houses were about 6 meters apart. The respondents demolished their property and intended to build another in its place. They employed a main contractor to carry out the demolition and rebuilding works. When the demolition works were being carried out, some debris from the respondents’ property fell on the boundary wall and on the appellants’ property and caused damage. The appellants sued the respondents in the tort of negligence, joining the main contractors as defendants. When the case came before the Court of Appeal, the main contractors had been made bankrupt and the appeal proceeded only against the respondents. It was not disputed that the main contractor had been negligent.

40 Before the Court of Appeal, the appellants submitted that the respondents were (a) vicariously liable for the main contractor’s negligence; (b) negligent in their selection of the main contractor; or (c) had breached a non-delegable duty to ensure that the main contractor took reasonable care in performing the demolition works. The Court of Appeal rejected all three contentions. On the issue of vicarious liability, the Court of Appeal held that this required there to be a special relationship between the tortfeasor and the defendant, and additionally, the defendant must have in some way created or significantly enhanced, by virtue of that relationship, the very risk that in fact materialised in order to be held vicariously liable for the tortfeasor’s wrong acts (Ng Huat Seng at [66]). On the facts, the requirement of a special relationship had not been satisfied as the respondents had engaged the main contractors as independent contractors. Indeed, the Court of Appeal noted that to impose vicarious liability on a defendant for the lapses of an independent contractor would be antithetical to the doctrine’s foundations (Ng Huat Seng at [64]). Moreover, there was nothing to suggest on the facts that the respondents had, by its relationship with the main contractors, created or significantly increased the risk of the harm that was caused.

41 The Court of Appeal also dismissed the negligent selection issue. As the main contractors were licensed to carry out the demolition works, it could not be said that the respondents were negligent in their selection of the contractor.

42 Finally, the Court of Appeal also held that the respondents did not owe a non-delegable duty to the appellants in the performance of the demolition works. The court referred to the test set out in a previous Court of Appeal decision in MCST Plan No 3322 v Tiong Aik Construction Pte Ltd [2016] 4 SLR 521 (“Tiong Aik”). In Tiong Aik, the Court of Appeal set out a two-stage framework for determining whether a non-delegable duty would arise on a given set of facts. First, the claimant would have to establish either that this claim fell within one of the recognised categories of non-delegable duties, or that his case possessed all five of the defining features outlined by Lord Sumption JSC in Woodland v Swimming Teachers Association [2014] AC 537 (“Woodland”) at [23]. These five defining features were namely:

(a) The claimant was a patient or a child, or, for some other reason, was especially vulnerable or dependent on the protection of the defendant to avoid the risk of injury.

(b) There was an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission, which placed the claimant in the defendant’s actual custody, care or charge, and from which it was possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not merely a duty to refrain from the conduct which would foreseeably harm or injure the claimant.

(c) The claimant had no control over how the defendant chose to perform the obligations arising from the positive duty at (b) above.

(d) The defendant had delegated to a third party some function which was an integral part of the positive duty which it assumed towards the claimant, and at the time of the tortious conduct, the third party was exercising, for the purpose of the function thus delegated to him, the defendant’s custody, charge or care of the claimant and the element of control that went with it.

(e) The third party had been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him.

If the claimant established that his claim fell within either of the abovementioned perimeters, the court would then take into account the fairness and reasonableness of imposing a non-delegable duty of care on the defendant in the particular circumstances of the case, as well as the relevant policy considerations.

43 Applying this test to the facts, the court first considered, as a preliminary issue, whether the doctrine of ultra-hazardous acts should be recognised as an established category of non-delegable duties under Singapore law. It noted that there were two contrasting judicial approaches to the doctrine of ultra-hazardous acts. The first approach was adopted by the English Court of Appeal in Honeywill and Stein Ltd v Larkin Brothers (London’s Commercial Photographers) Ltd [1934] 1 KB 191 (“Honeywill”). That case involved by photographers who had been employed to take photographs of the cinema’s interior causing a fire in the cinema as a result of their negligent use of magnesium flash photography. The issue was whether the employers of the photographers who had paid compensation to the cinema owners were entitled to an indemnity from the photographers, who were independent contractors. The photographers argued that since they were independent contractors, the employer was not legally liable to compensate the cinema owners for their negligence, and therefore that the employers were not entitled to an indemnity.

44 The English Court of Appeal noted the general rule that an employer was not liable for the acts of an independent contractor but articulated an exception in the case of ultra-hazardous acts. As taking the photograph in the cinema (which involved the creation of a fire and explosion) was “a dangerous operation in its intrinsic nature”, the employers had assumed an obligation to the cinema owners which was “absolute” or “at least an obligation to use reasonable precautions, to see that no damage resulted to the cinema company from these dangerous operations”, and this obligation was one which the employers could not delegate by employing the photographers as independent contractors (Honeywill at 200). It is notable that in arriving at its decision, the English Court of Appeal cited Bower v Peate and Hughes as examples supporting the general principle that employers may be liable for the negligence of their independent contractors if the operation which the independent contractor was engaged to carry out was an inherently dangerous one.

45 The second approach which the Court of Appeal referred to in Ng Huat Seng was that of the English Court of Appeal in Biffa Waste Services Ltd v Maschinenfabrick Ernst Hese GmbH [2009] 3 WLR 324 (“Biffa Waste”). In that case, independent contractors had been engaged to carry out welding works that led to a fire. The pertinent issue was whether the employers of the independent contractors were liable for the latter’s negligence on the basis of the doctrine of ultra-hazardous acts as elucidated in Honeywill. Stanley Burnton LJ, delivering the judgment of the English Court of Appeal, noted that Honeywill had been criticised as producing “preposterous distinctions” as the line between operations that were inherently dangerous and those that were not was uncertain. Due to the unsatisfactory nature of the doctrine in Honeywill, the court stated that its application should be kept as narrow as possible and applied “only to activities that are exceptionally dangerous whatever precautions are taken” (Biffa Waste at [78]).

46 The Court of Appeal in Ng Huat Seng preferred the approach adopted in Biffa Waste. In its view, the doctrine of ultra-hazardous acts ought to be confined to the limited circumstance where an activity posed a material risk of causing exceptionally serious harm to others even if it was carried out with reasonable care (at [94]–[96]). Applying this to the facts, the Court of Appeal held that the facts in Ng Huat Seng did not fall within the doctrine. Notably, the Court of Appeal held that the demolition works could not be reasonably said to be ultra-hazardous, elaborating as follows (at [97]):

Given the above finding, the Court of Appeal stated that there was therefore no need to recognise the doctrine of ultra-hazardous acts as part of Singapore law since the facts of the case would not engage the operation of the doctrine, properly conceptualised (at [89]).

47 The Court of Appeal then turned to consider if the five defining features set out by Lord Sumption JSC in Woodland were present. The court held that none of the features existed on the facts, and elaborated as follows (at [103]):

48 The decision in Ng Huat Seng demonstrates that a landowner who has had negligent construction works carried out on his or her land or property by an independent third-party which has caused damage to his neighbour’s property is not ipso facto liable to his neighbour for the damage caused. Indeed, it is difficult to see why the broad non-delegable duty ought to be recognised when the Court of Appeal has, on similar facts, declined to impose a non-delegable duty of care in negligence.

49 In my assessment, the plaintiff’s reliance on Hughes and Bowers v Peate for the recognition of the non-delegable duty may, too, be misplaced. For one, the difference in the outcome in Hughes – where a non-delegable duty was recognised – and Ng Huat Seng – where no non-delegable was recognised – is stark and difficult to reconcile. This is especially so when it is considered that both cases involved damage to a wall adjoining the parties’ properties when certain construction works were taking place on one of the party’s property. Additionally, Hughes and Bower v Peate are part of a line of cases relied on in Honeywill for the doctrine of ultra-hazardous acts that the Court of Appeal in Ng Huat Seng declined to follow (see [44]–[46] above). To the extent that the Court of Appeal in Ng Huat Seng declined to follow Honeywill and preferred the narrower conception of the doctrine of ultra-hazardous acts in Biffa Waste, this indicates that the position in Bower v Peate and Hughes is unlikely to be followed in Singapore, at least in so far as it may be said that these cases were decided on the doctrine of ultra-hazardous acts.

50 In this connection, it is pertinent to note that the English Court of Appeal in Biffa Waste in limiting the doctrine of ultra-hazardous acts, expressly cautioned against reliance on Hughes, noting that this was a case of liability in private nuisance, of interference with an easement (ie, the right of support), rather than the tort of negligence (at [71]). Indeed, although the damage in Hughes was not caused by excavation works per se, it has been accepted in various authorities besides Biffa Waste that the decision was premised on the defendant’s withdrawal of support to which the plaintiff was entitled (see Clerk & Lindsell at para 6–65; but cf Lord Sumption JSC’s judgment in Woodland where he stated that Hughes was a case where the principle that a positive duty could be owed by a landowner to his neighbour in respect of hazardous acts carried out by his contractor was “applied to a duty of care” by analogy (at [10])). If it is correct that Hughes concerned an action in nuisance in connection with the infringement of a right of support, then contrary to the plaintiff’s submission, Hughes is not an example of a case where a non-delegable duty has been imposed on a landowner in nuisance in a case where the right of support for land or building has not been infringed.

51 It may perhaps be argued that Ng Huat Seng was decided in the manner which it was because this was the manner in which the case was run before the courts. Xpress Print and Hughes had not been cited, and there was no indication that the appellants had brought an alternative action in nuisance. However, it is difficult to conceive (and would indeed be incongruous) that if these cases had been cited, the Court of Appeal would have held the respondents liable in nuisance for breach of a strict non-delegable duty whilst at the same time holding that no non-delegable duty in negligence should be imposed. In fact, it may even be arguable that Ng Huat Seng represents a departure from the previous judicial attitude towards the nature of the relationship between neighbouring landowners expressed in Xpress Print. As set out above at [30], the Court of Appeal in Xpress Print had premised the right of support for buildings on the principle that landowners should use their property in a manner as not to injure that of another, the importance of which was compounded by the fact that land in Singapore was used to a high intensity. This lead the court to find a natural right of support for buildings, and a corresponding non-delegable duty on the owners of neighbouring property not to remove that support. In contrast, the Court of Appeal in Ng Huat Seng appeared to take a much more measured approach, stating both that the relationship that existed between neighbours that owned adjoining plots of land was governed primarily in the law of negligence (see the extracts of the judgment in Ng Huat Seng set out at [46]–[47] above). Indeed, the fact that land is used to a high intensity in Singapore did not, in the Court of Appeal’s view in Ng Huat Seng, warrant the imposition of a special duty on the part of a landowner who has engaged contractors to carry out demolition works on his land vis-à-vis his neighbours. Hence, it appears that the appellants in Ng Huat Seng would not have succeeded even if an action had been brought in nuisance against the respondents.

52 Finally, and on a related note, it may be noted that the relationship between nuisance and negligence is a vexed one. It is not presently clear whether nuisance is a tort that imposes strict liability in all situations (see, generally, Gary Chan, The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2016) at paras 10.065 and 10.093–10.097). To the extent that certain instances of nuisance may not impose strict liability for breach, the question as to whether the standard of the duty required is those cases is concomitant with the standard of care in negligence is one deserving of further analysis with the benefit of fuller arguments. It is only necessary to quote from the following extract from Clerk & Lindsell to illustrate the issues to be considered (at para 20–31):

53 In my opinion, the observation by the authors of Clerk & Lindsell that the “general field of liability for negligence has been greatly expanded” applies with force in Singapore. Since the seminal decision in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”), the law of negligence has gained coherence and prominence. Liabilities that used to be governed by disparate principles have been subsumed under the broad umbrella of negligence. For instance, the Court of Appeal in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2013] 3 SLR 284 had recently held that the framework of negligence as set out in Spandeck ought to apply to claims that arose in the context of occupier’s liability. What this means in the context of the present case is that even if the plaintiff could bring a claim in nuisance against the 2nd and 3rd defendants, it is likely that the issue of whether the 2nd and 3rd defendants are liable to the plaintiff for any damage cause may nonetheless be governed by principles of negligence.

54 The above analysis shows that in sum, based on current authorities, the broad non-delegable duty for which the plaintiff contends is not recognised. As the law currently stands in Singapore, a landowner would owe only a non-delegable duty to his neighbour in nuisance for damage caused to them by an independent contractor if the negligent construction works caused the neighbouring land or building to lose its support and which resulted in damage (as per Xpress Print and Afro-Asia). However, if the negligent works did not result in a loss of support for the land or building, the matter would be governed by the principles of negligence, with the plaintiff being required to prove first, that the contractor was negligent, and second, that in those circumstances, primary or secondary liability for the contractor’s negligence ought to be imposed on the landowner as well.

55 Furthermore, there is little, if any, support for the argument that the broad non-delegable duty ought to be recognised in Singapore. The authorities suggest that a negligence-based approach may be preferable to assess the 2nd and 3rd defendants’ liability to the plaintiff, at least in the context of the present case where damage was not caused by the removal of support, as this strikes the appropriate balance between the rights of neighbouring landowners. Recent authority from the Court of Appeal in Ng Huat Seng also appears to demonstrate a change in judicial attitudes as regards the relationship between adjoining landowners. In this regard, while a landowner has a general duty of care not to cause reasonably foreseeable damage to his neighbour’s property, it was held that there is nothing otherwise especial in the relationship of adjoining landowners to impose a non-delegable duty of care on them. Even if landowners could be said to owe a broad duty in nuisance not to cause damage to his neighbour’s property, the trend in the more modern authorities is to assess that duty with reference to negligence principles.

56 In the result, I decline to enter for summary judgment against the 2nd and 3rd defendants, since, in my view, the principle on which the plaintiff’s application is based is not recognised in Singapore and there is no prima facie case for the recognition of such a duty. Instead, the present case is more appropriately governed by the principles of negligence, but this is not a claim mounted by the plaintiff. Had she done so, she would have to prove, amongst other things, negligence on the part of the 1st defendant. In any case, even if there was an arguable case that the broad non-delegable duty ought to be recognised in Singapore as an aspect of nuisance, this would not be an appropriate case to grant summary judgment because of the various difficult legal issues raised. The plaintiff would also have to prove factual issues, such as causation, to be entitled to judgment. These are matters in dispute which ought to be decided after a trial. The comments of the court in Obegi Melissa and others v Vestwin Trading Pte Ltd and another [2008] 2 SLR(R) 540 at [40] that where novel legal issues are raised and more evidence would be needed to satisfactorily determine those issues which require a full examination of all the relevant facts, the matter ought to proceed to trial rather than be summarily determined are exactly to the point here.

57 In conclusion, I grant the 2nd and 3rd defendants unconditional leave to defend. I will hear the parties on costs.