High Court · Decided 9 January 2014

BNM (administratrix of the estate of B, deceased) on her own behalf and on behalf of ors v National University of Singapore and anor

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[2014] SGHC 5Case no. Suit No 954 of 2009

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Grounds of decision

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Quentin Loh J:
[1] On 6 June 2007, B, (“the Deceased”), an IT network manager employed by the first defendant, the National University of Singapore (“NUS”), drowned whilst swimming at a swimming pool owned by NUS. His widow, BNM, brings this action in tort on behalf of her two young children, aged 3 and 6 in June 2007, as administratrix of the Estate of the Deceased and on her own behalf. I will refer to her as “the Plaintiff”. The children are now aged 9 and 12.
[2] NUS decided to outsource the supply of lifeguards and cleaning of the swimming pool in late 2006. The second defendant, Hydro Aquatic Swimming School (“Hydro Aquatic”), was the only tenderer and was accordingly awarded the contract to supply lifeguards and clean the swimming pool for the period of one year from 1 April 2007 under a written contract. Hydro Aquatic was therefore providing lifeguard services at the relevant time. NUS brought a third party action seeking contribution or an indemnity from Hydro Aquatic in the event that it was found liable to the Plaintiff and the Plaintiff added Hydro Aquatic as a second defendant. Hydro Aquatic brought fourth party proceedings against its insurer, Overseas Assurance Corporation Limited (“OAC”), under a public liability insurance policy which, Hydro Aquatic contends, would cover any liability found against it in the present suit. OAC took the position that the insurance policy does not cover the liability arising out of Hydro Aquatic’s alleged negligence.
[3] The trial, which was solely on liability, took place over 17 days in three tranches and at the end I reserved judgment which I now give. This has been a tragic and difficult case.
The respective cases
[4] The Plaintiff makes the following allegations of negligence (and in occupier’s liability) against the Defendants:
(a) NUS as owner and occupier of the swimming pool owed a duty of care to all visitors or users of the swimming pool and this duty of care extended to the engagement of Hydro Aquatic as their subcontractor for the provision of lifeguards;
(b) NUS failed to adequately or properly supervise Hydro Aquatic and with due care and attention;
(c) NUS and Hydro Aquatics failed to exercise their duty to ensure that they had competent and well-trained lifeguards to observe and respond expeditiously to the Deceased when he was in distress in the water;
(d) NUS and Hydro Aquatic did not have an effective emergency response system/plan which consisted of trained and qualified lifeguards to provide timely, relevant and proper emergency medical assistance to any swimmers in the swimming pool who were in distress, including but not limited to the use of an Oxyviva resuscitator machine (“Oxyviva”) and an automated external defibrillator (“AED”) for the purposes of resuscitation;
(e) The standard of care given to the Deceased after he was pulled out of the water was not what should reasonably have been expected of a lifesaver acting in a closed and controlled environment, as:
(i) The lifeguards were not attentive and did not notice the struggles and distress of the Deceased in the water;
(ii) The lifeguards were not stationed so as to be able to observe and react expeditiously to those patrons who were in distress;
(iii) The lifeguards were not aware where the lifesaving equipment, namely, the Oxyviva and AED were placed or kept;
(iv) The lifeguards were not competent in resuscitating drowning victims such as the Deceased and furthermore were not trained to use the Oxyviva and the AED;
(v) The AED was not brought expeditiously to the scene and was not used within a reasonable time;
(f) Hydro Aquatic also owed the above duties to the Deceased and breached those duties resulting in the death of the Deceased; and
(g) As a result of NUS’s and/or Hydro Aquatic’s negligence and breach of the above duties owed to the Deceased, the Deceased drowned.
[5] NUS’s case, in the main, is that:
(a) The management and maintenance of the swimming pool were delegated to Hydro Aquatic through a properly carried out tender process and NUS were not negligent in doing so;
(b) Hydro Aquatic was engaged as an independent contractor to provide lifeguard and pool cleaning services at the swimming pool from 1 January to 31 December 2007;
(c) NUS was not negligent in appointing Hydro Aquatic as an independent contractor as Hydro Aquatic had met the tender requirements, which, inter alia, required it to provide lifeguards who were properly trained in the use of the Oxyviva and AED equipment;
(d) Because it was Hydro Aquatic rather than NUS that was the occupier of the swimming pool, NUS did not owe any duty to the Deceased either as occupier of the swimming pool or in negligence; instead, it was Hydro Aquatic who owed a duty of care as an occupier;
(e) Hydro Aquatic also had to ensure that properly trained lifeguards were stationed at the swimming pool and NUS was not vicariously liable for any breaches of duty of care and/or negligence on the part of Hydro Aquatic, its servants and/or agents;
(f) In any case, NUS denies that it had a duty to provide lifeguards with training in the use of the Oxyviva and AEDs and denies that the lifeguards were negligent in their rescue efforts;
(g) Further and in any case the Deceased had a severe and pre-existing heart condition which would have made the likelihood of his survival very small no matter what was done; so that even if there was any negligence, it did not cause the death of the Deceased or the Plaintiff’s loss and damage;
(h) In the event that NUS is held liable to the Plaintiff, then NUS claims to be indemnified by Hydro Aquatic on the following grounds:
(i) NUS engaged Hydro Aquatic as an independent contractor to provide lifeguard and pool cleaning services and that under the agreement, Hydro Aquatic had to:
(A) Provide lifeguards who were at least current holders of a “Bronze Medallion” from the Singapore Life Saving Society (“SLSS”) or its equivalent;
(B) Provide lifeguards trained in spinal injury management and in the use of the Oxyviva and AED;
(C) Provide lifeguards who had to be vigilant and alert while on duty, so as to be able to prevent any accident in the swimming pool, to rescue persons having difficulties in the swimming pool, and to apply resuscitation and administer first aid and summon the ambulance if necessary;
(D) Provide first aid equipment, including the Oxyviva and an approved AED;
(ii) Hydro Aquatic had a duty to take reasonable care to see that visitors and users of the swimming pool were reasonably safe in using the premises for the purposes for which they were permitted to be present; and
(iii) Hydro Aquatic failed to discharge its duty to take reasonable care to see that the Deceased would be reasonably safe in using the swimming pool and was in breach of its duty of care in tort.
[6] Hydro Aquatic denies the claims against it and the allegations of negligence, want or care and/or breach of contract. It claims that its lifeguards responded promptly, rushed to the aid of the Deceased on noticing that he was in difficulty or distress, applied continuous cardio pulmonary resuscitation (“CPR”), and provided aid using the Oxyviva and AED. The AED was used to apply an electrical charge to the Deceased. Hydro Aquatic had done all it could reasonably be expected to do. Hydro Aquatic advances the defence that in any case, the cause of death of the Deceased was due to his ischaemic heart disease as recorded in the Deceased’s autopsy report. In so far as Hydro Aquatic is held liable to the Plaintiff or NUS, it claims an indemnity under their public liability policy taken out with OAC.
[7] OAC denies that its policy covers Hydro Aquatic in the circumstances and relies on its policy terms and conditions. I heard oral submissions on this as a preliminary issue at the start of the trial, and ruled that in the circumstances of this case, if there is any liability on the part of Hydro Aquatic to the Plaintiff or NUS, Hydro Aquatic was entitled to an indemnity from OAC under its policy. The reasons for this decision are set out below at [127] to [137].
[8] The evidence led in the trial covered four broad issues:
(a) What standards, if any, were the owners of public swimming pools expected to apply in June 2007 with regard to the provision of lifeguards and the provision of safety equipment such as the Oxyviva and the AED;
(b) Whether NUS properly supervised the services provided by Hydro Aquatic and whether it noticed any shortfall in performance by Hydro Aquatic and if so whether it did anything about it;
(c) Whether the lifeguards provided by Hydro Aquatic on 6 June 2007 were negligent in the performance of their duties at the NUS swimming pool; and germane to this were the factual issues of the positions taken up by the lifeguards at the relevant times, their watchfulness over the swimmers, their actions after they became aware of the Deceased’s predicament, and whether they knew where the Oxyviva and the AED were kept and how to use them;
(d) What was the medical condition of the Deceased prior to his drowning, what was the cause of his drowning, and whether he had a heart attack that led to him getting into difficulties in the pool.
Facts
[9] Apart from the medical condition of the Deceased, which I shall deal with later, some of the background facts and facts leading up to the incident are not very contentious. What was disputed was what happened in those few fraught minutes from the time when the Deceased was first seen to be in trouble at or near the bottom of the pool to the time when he was recovered from the water and unsuccessful attempts were made to resuscitate him. The following constitute my findings of fact.
[10] The Deceased was at the time of his death aged 40 and employed as an IT network manager in the NUS computer centre. It was part of his routine to swim together with a friend, Er Chee Teck (“Er”), once a week during lunchtime at the NUS swimming pool.
[11] The swimming pool was a standard Olympic sized pool, 50m long and 25m wide, with a separate smaller “instructional” pool to one side. It was a separately fenced off part of the sports and recreation complex sited within the university grounds in Clementi. Viewed from the entrance, the 50m lengths of the pool lay horizontally and in front and the 25m widths ran vertically with the deeper end, which was 1.8m in depth, to the left and the shallower end, which was 1.2m deep, to the right; the centre was slightly deeper at 1.9m. There were nine swimming lanes marked out which I will call Lane 1 to Lane 9. Lane 1 was closest to the entrance and lay along the nearer 50m length and Lane 9 was along the upper or farther 50m length of the swimming pool. There was a corridor of approximately 5m in width between the lower 50m length of the swimming pool and a spectator gallery of four raised “steps” to seat spectators. The spectator gallery ended in a platform where there was a turnstile at the entrance to the pool; the turnstile was set-off about one-third from the right 25m edge of the pool and about two-thirds from the deeper left 25m edge of the pool. On the day in question, both lifeguards were sitting next to the turnstile. They were therefore seated relatively closer to one corner of the pool (Lane 1 at the shallower 25m width), when the Deceased got into difficulties at the corner of the pool almost diagonally opposite to them (Lane 9 at the deeper 25m width).
[12] On 6 June 2007 at about 12.49 pm, the Deceased went with Er for their regular swim. They took about five to 10 minutes to change and warm up and then both began swimming in Lane 9, the lane farthest from the lifeguard post. There were no other swimmers in that lane at the time. The lifeguards estimated that there were only around 10 to 15 swimmers in the pool at the time.
[13] Er said that while he was swimming on his seventh lap he saw the Deceased struggling in Lane 9. The Deceased was submerged in the water and waving his hands, his legs were touching the floor of the pool which was about 1.8m deep at that point and he appeared to be trying unsuccessfully to get to the surface. As noted above, the Deceased was then at the deeper end of the pool and near the ladder at the far left corner of the pool viewed from the entrance. Er swam as fast as he could to the Deceased who was then about 20m from him. Er estimated that it took him about 10 seconds. He reached the Deceased, grabbed him under the arms, and pulled him to the surface and then to the side of the pool, which was about 1m away. The Deceased was still struggling in the water and Er said it took some effort, and therefore time, to get him to the side of the pool.
[14] When Er reached the side of the pool with the Deceased, he shouted for help. At the time, the two Hydro Aquatic lifeguards on duty were Cheong Juan Meng (“Cheong”) and Chua Li Qi (“Chua”). Cheong, alerted by the shout, ran down the gallery steps towards the Deceased and Er while Chua remained where she was; upon seeing Cheong waving his arm at her as he ran towards the Deceased and Er and hearing him shout at her, she called for an ambulance and then went to the lifeguards’ office to get the safety equipment. This was approximately 1.10pm. When the Deceased was pulled out of the water with the help of Cheong, it seemed as if he was still conscious. He appeared to be trying to expel water. However he did not respond to questions and his eyes were only half-open. Cheong noticed weak breathing and a cut on the centre of the Deceased’s tongue. He started to perform CPR. I note that the autopsy report, which I take to be accurate, did not record any cut on the Deceased’s tongue. Dr Gilbert Lau Kwang Fatt (“Dr Gilbert Lau”), a forensic pathologist who had supervised the post mortem examination of the Deceased and gave evidence at trial, confirmed the absence of any cut on the tongue.
[15] The Coroner’s report indicated that Chua’s call for an ambulance was made at 1.13pm. Chua could not locate the AED and only managed to find the Oxyviva, which she then brought to the poolside where Cheong was attending to the Deceased. An AED is a portable electronic device that automatically diagnoses potentially life threatening cardiac rhythms and applies an electric shock to restore an effective rhythm. An Oxyviva machine is a mechanical device that pumps air into the victim’s airway and delivers a higher concentration of oxygen at 21% compared to that delivered through CPR. I was told that Oxyviva was originally a brand name but it has now passed into generic use. The Oxyviva was of no use in this type of case; it is mentioned only to underscore the fact that Chua was unable to locate the AED at her first attempt but located only the Oxyviva which she brought to the Deceased. She then opened it but did not use it as she was surprised to find it still in its plastic packing and unassembled. In any case both Cheong and Chua had not been trained in its use and did not in fact use it.
[16] Chua then returned to the lifeguards’ office to try and locate the AED. She was successful in her second attempt and returned to the scene with the AED, she said, in two or three minutes. On my assessment of the evidence, I find it more likely that the time taken for that exercise – for her to run back to the office, to look for the AED, find it and then return to the Deceased – took some four to five minutes. But neither Cheong nor Chua used the AED on the Deceased as they were also not trained in its operation. After this, Chua said she left the scene to go to the car park where she waited for the ambulance to arrive so that she could guide them to the poolside.
[17] Sim Lye Hock (“Sim”), who was at the time the facilities officer and an employee of NUS, arrived shortly after. He said that he saw Cheong performing CPR on the Deceased. When he came to the poolside, Chua had by then brought the AED as well. On Sim’s instructions, the Deceased was carried away from the swimming pool edge to a dry spot so that the AED could be used. Sim attached the leads and, upon being prompted by the AED to do so, applied one shock to the Deceased. The AED timed this shock as occurring at 1.26pm. Hydro Aquatic’s main director and shareholder, Lim Kay Seng, who was attending a meeting nearby, claims that he had also, by this time, arrived on the scene and together with Cheong continued to perform CPR on the Deceased. I note however this fact was not recorded in the Coroner’s report. Whether Lim Kay Seng was there and helped to perform CPR on the Deceased is not material except perhaps to impinge on the reliability of his evidence.
[18] Dr Tan Tong Nam (“Dr Patrick Tan”), a doctor at the University Health, Wellness and Counseling Centre, then arrived at the scene. He was the first medical professional on the scene. He said that he was having lunch when he received a call to attend to the Deceased. He said that when he arrived at the scene at around 1.20pm he saw two lifeguards as well as Sim performing CPR on the Deceased. He took over the CPR and did external chest compressions at 30 compressions to two ventilations. He noticed that the Deceased had no pulse. Dr Patrick Tan said that he tried to deliver a shock to the Deceased but the AED indicated that the Deceased could not be administered another a shock.
[19] The ambulance then arrived; its time of arrival was clocked at 1.25pm. The paramedic who responded was told that the AED had been applied once. He then tried using a defibrillator on the Deceased to no effect: the Deceased had by then gone into asystole which meant there was no longer any heartbeat. The Deceased was rushed to the National University Hospital and arrived at the Accident and Emergency department there at 1.39pm. The doctor on duty noted that on arrival, the Deceased was unresponsive, without pulse and was not breathing. His vital signs could not be recorded. An electrocardiogram (“ECG”) monitor showed he was still in asystole. At 2.27pm, the Deceased was pronounced dead.
[20] The autopsy report recorded the cause of death as consistent with drowning with ischaemic heart disease. On 17 June 2008, a Coroner’s inquiry recorded a verdict of misadventure.
[21] Although I have set out the times of certain events, it should be evident that these times were recorded by different devices or were derived from estimates by the various witnesses. They were not synchronised and certainly their accuracy cannot be taken for granted. They cannot be completely relied upon when reconstructing the crucial events of the day. With that caveat, having heard and considered the evidence, my finding is that from the time the Deceased first got into difficulties to the time Er was able to struggle with him to the edge of the pool and shout for help, about three minutes had passed. By the time Cheong, alerted by the shout, had run to the opposite corner of the pool, pulled the Deceased out of the water, assessed the situation and condition of the Deceased – this involved initial assessment of the Deceased by Cheong for responsiveness, opening the Deceased’s airway to check for breathing, giving two quick breaths to the Deceased, checking the Deceased’s pulse – and then started CPR, another three to four minutes had passed. CPR was only started six to seven minutes after the Deceased got into difficulties. Professor Venkataraman Anantharaman (“Professor Anantharaman”) who gave evidence for Hydro Aquatic, estimated that it took another about nine to 10 minutes before the AED was applied to the Deceased, or about 16 minutes after he first got into difficulties. I find this estimate reasonable and accept the same. This means the AED shock was applied to the Deceased about 15 to 17 minutes after the Deceased got into difficulties.
My decision
The Plaintiff’s claim in negligence
[22] I start with the preliminary observation that I received written closing submissions before the Court of Appeal gave its judgment in See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2013] 3 SLR 284 (“See Toh Siew Kee”). That landmark decision had the effect of subsuming the law of occupiers’ liability within the tort of negligence on the basis that the principles governing the former are a proper subset of the general principles of the latter: See Toh Siew Kee at [76] and [113]. Part of the Plaintiff’s originally pleaded case was that NUS and/or Hydro Aquatic had breached duties of care owed to the Deceased in their capacity as occupiers of the swimming pool. But in closing submissions, the Plaintiff appeared to have abandoned the claim in occupier’s liability or at any rate did not submit on it although the claim remained one in negligence. In any case, my preliminary view is that the particulars of breach claimed by the Plaintiff had to do with dynamic activities done on property rather than the static condition of the property and therefore would have fallen outside the law on occupier’s liability (see See Toh Siew Kee at [20]).
[23] Accordingly, I did not think it necessary to request further submissions from parties to address the relevance and impact of See Toh Siew Kee as I did not think the parties would suffer any prejudice. There is one issue where the law on occupier’s liability might have been relevant and that is whether an occupier would, prima facie, owe duties of care to lawful entrants (see See Toh Siew Kee at [80]) or whether, per Sundaresh Menon CJ, this question would be “worked out by reference to the specific facts that will arise on future occasions, rather than by articulating any legal rule or principle to this effect” (see See Toh Siew Kee at [130]). In the event, this issue is not of great significance (see below at [30]).
[24] I therefore proceed on the basis that the Plaintiff’s claim is to be treated as one made solely on the basis of the defendants’ alleged negligence. In Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”), the Court of Appeal at [21] laid out the well-known elements of a claim in negligence:
[25] Whether there is a duty of care depends first on the threshold requirement of factual foreseeability, followed by the twin considerations of legal proximity and the presence of any countervailing policy considerations: Spandeck at [73]–[86]. Although there are two defendants in the present case, in the initial analysis I treat both NUS and Hydro Aquatic as one compendious party which I hereinafter for convenience refer to as the “Defendants”.
Duty of care
[26] NUS admits, quite correctly in my view, that the fact that a patron of the swimming pool could get into difficulties and drown in it was factually foreseeable. Hydro Aquatic does not say otherwise. This threshold requirement is, as is often the case, easily crossed and therefore not an issue here.
[27] I next consider the issue of legal proximity as laid down by the Court of Appeal in Spandeck to which the following principles are relevant:
(a) Legal proximity (at [78]–[79]) is a “composite idea, importing the whole concept of the necessary relationship between the claimant and the defendant”;
(b) As per Deane J’s observations in the Australian High Court decision of Sutherland Shire Council v Heyman (1985) 60 ALR 1 at 55–56, the requirement of proximity embraces the notions of physical proximity, circumstantial proximity and causal proximity, including the closeness of the parties, the directness of the relationship between the parties as well as the assumption of responsibility on the part of one party to prevent injury to the other and any corresponding reliance on the part of the injured party that such care was being taken;
(c) The relative importance of each factor and the combinations of the factors is a legal question to be determined on the basis of legal reasoning, induction and deduction; and
(d) This test is to be applied incrementally, at [73] of Spandeck:
[28] NUS admits that there was legal proximity to the Deceased such that a duty of care arose only in its capacity as an occupier with a duty of care to visitors like the Deceased, an invitee, which was to warn them of unusual dangers, of which there were none, and to provide qualified lifeguards of reasonable competence according to the standards prevailing at the material time. It did not extend to providing lifeguards trained in the use of the Oxyviva and the AED. NUS however contends that the duty can however be delegated, which is what NUS says it did when it subcontracted the job of providing lifeguard services to Hydro Aquatic, who were also occupiers together with NUS of the swimming pool as they both had a sufficient degree of control over the swimming pool.
[29] The Plaintiff says that this duty of care was not discharged because the system of pool safety was inadequate for the purpose, the lifeguards were incompetent or inadequately trained, slow in responding to the Deceased’s struggles in the water, and had failed to afford him proper care due to their failure to use the Oxyviva machine and the AED.
[30] There is no doubt that the Defendants owed a duty of care to lawful entrants, as the Deceased undoubtedly was, to take reasonable care for their safety. After See Toh Siew Kee, it is immaterial whether this duty of care is imposed as a presumption on the basis that the Defendants were occupiers (see See Toh Siew Kee at [80]) or whether the issue falls to be decided on a case-by-case basis (see See Toh Siew Kee at [130]).
[31] In my judgment, under the first stage of the Spandeck test, there was sufficient legal proximity between the Defendants and the Deceased to give rise to a duty of care. NUS correctly and responsibly conceded legal proximity. Hydro Aquatic does not, and cannot, contend otherwise. However, the extent of that duty of care depends on all the facts and circumstances of each case and I caution that my decision should not be taken out of context as each case must be decided on its own facts and circumstances.
Was there a duty of care to provide properly trained lifeguards?
[32] Before I turn to the next issue, I think that it is appropriate for me to discuss the duty of care in relation to the provision of lifeguards, notwithstanding the concessions made by the Defendants. I note that there is no legislation requiring or regulating the provision of lifeguards or safety equipment in swimming pools in June 2007 or even today, and it falls to the courts to reason and decide this issue from first principles. There is also a surprising dearth of decided cases to guide the court in the “incremental approach” laid down by the Court of Appeal in Spandeck. It is therefore appropriate that I make my findings on this issue in the event that the concessions made by the Defendants are challenged or a view is taken that these concessions were wrongly made.
[33] I have described the NUS swimming pool in some detail above. It is clear that it was large and deep enough in parts such that a swimmer getting into difficulties would find it hard to reach the safety of the poolside and therefore risk serious injury or even death by drowning. Swimmers can get into difficulty for a variety of reasons: sudden muscle cramps; accidental ingestion of large amounts of water; collisions with other swimmers or the pool wall; diving mishaps; or falls into the pool. Because they are immersed in water, the danger of drowning or serious injury arising from near fatal submersions is obvious. Pool operators therefore have a duty to take reasonable care and responsibility for the safety of all who use their pools.
[34] That said, I do not think that owners or operators of all the different kinds of swimming pools should be bound by the same scope and extent of duty of care to the users of such pools. Swimming pools come in all shapes and sizes and are built for different purposes. They may be deep or shallow or more commonly, with deep and shallow parts. They may be private pools in bungalows, small blocks of flats or large condominiums to which the public has no ready access or right of use, or they may be public swimming pools to which any member of the public can gain access upon payment of a modest fee. They may also be restricted swimming pools, as was the case here, available only to a class of persons who are members of a club or organisation. Must owners of all such swimming pools provide properly qualified lifeguards? This cannot be the rule for it would inflict an unduly onerous burden on some owners which is not proportionate to the expected benefits of the rule. Having said that, the kind of users of the pool may give rise to very different considerations, eg, where children have ready access and are known to frequently use the swimming pool. However these considerations may have to be balanced by a duty of supervision by parents or adults who can swim, especially in swimming pools within private condominiums. A duty of care may also be imposed on those carrying on an organised activity in a swimming pool, for example, a group of school children being given swimming lessons as part of the school’s extracurricular programme. All facts and circumstances must be taken into account in deciding the issue of legal proximity and the scope of the duty of care that is owed.
[35] Owners or operators of large or Olympic-sized swimming pools such as those commonly in use in public swimming complexes should, in my judgment, be under a duty to provide an adequate system of safety for their users as these pools are in effect open for public use. Those who use these pools will range from the very young to the very old and will necessarily differ in their ability to swim. Some may be so exuberant as to engage in dangerous horse-play. No owner or operator is entitled to assume that every user is physically fit and a competent swimmer who can cope with unexpected exigencies. Even the fittest swimmer is not immune to mishaps.
[36] Although the NUS swimming pool is a private swimming pool open only for members of the university and their guests to swim in, the potential users number in the thousands over a year. Therefore, I do not think that NUS should be treated differently from those who run large public swimming pools in this respect. Having invited use of this facility, NUS was thereby duty-bound to take steps to militate against the obvious risks of harm arising from the use of this facility in the manner in which it was intended to be used.
[38] I now deal with the second stage of the Spandeck test, viz, whether there are any considerations of public policy that limit the scope or extent of this duty of care, at this point. In my judgment there are some considerations that militate against extending the scope or extent of the duty too far. Learning to swim and swimming have obvious public benefits. It is desirable and in the public interest that as many people as possible should learn some basic swimming in the event that they unexpectedly find themselves in water or in the sea. It prevents unnecessary deaths by drowning. It is also a beneficial form of exercise for adults which does not unduly stress or damage the muscular-skeletal joints, and is therefore particularly beneficial as a form of exercise to those with joint deterioration or injury. As pointed out by Lord Sumption, who delivered the main judgment in Woodland v Swimming Teachers Association [2013] UKSC 66 (“Woodland”) at [6], swimming “unquestionably involves risks and calls for precautions” but is not on any view an “extra hazardous activity”. However this must be balanced by the fact that reasonable precautions can be taken without undue or onerous expense. In my judgment, on the facts of this case, there was a duty of care on NUS and that included the provision of two properly trained and qualified lifeguards to be on duty, as laid out in [36] above, when the swimming pool was open for use. On the facts of this case, it was not unreasonable for one of the lifeguards to check on an entrants’ eligibility to use the pool from time to time or to collect fees. This would also include the issuing of other sports equipment, provided it only involved one of the two lifeguards.
[39] In one of the very few reported cases on this point, Anne Teresa Hanlon or Gallacher v City of Glasgow District Council (1983) Inner House Cases 122 (“Anne Teresa Hanlon”), the local authority, which was the owner and occupier of a large public swimming pool, was found negligent for the drowning of an adult patron on the basis that the attendant on duty had failed to notice for some three or four minutes that the deceased was in trouble. It was found that for some unknown reason, the deceased got into difficulties and struggled feebly at the surface before sinking to the bottom of the pool. Shameen, one of three teenaged girls swimming leisurely at the time, spotted the deceased and pointed him out to her sister, who mistook her as referring to something else and did not respond. Shameen then went to one of the lifeguards on duty, whose back was to the pool, to inform her about the deceased’s difficulty. The lifeguard replied, “I’ll come in a minute,” but continued to chat with some other girls. Shameen returned to the pool, pointed out the deceased to her sisters and the three girls then went to rescue the deceased. This delay was later estimated at about three to four minutes. It was only when Shameen entered the pool to rescue the deceased that the lifeguard noticed what had happened and summoned the other lifeguard for assistance. The three girls brought the deceased to the surface and pulled him to the side of the pool where the lifeguard pulled him out of the water. Resuscitation was unsuccessful. The court noted that by the time the deceased was brought to the pool side and lifted out of the water, he was already dead. The court did not think it necessary that the attendants had to watch the pool at all times or that it was unreasonable for them to combine their supervisory duties with the collection of tickets and the opening of cubicle doors. However, it was held that the attendant had the duty of watching the pool and the swimmers in it and to respond timeously to any emergency; the fact that she did not notice anything in the crucial first three to four minute period until it was too late and the deceased had passed the “point of no return”, was evidence of negligence. The court noted that the lifeguard failed to observe events which stretched over a period of minutes and her response to Shameen indicated that she had not previously seen anything which called for attention or action.
Was there a duty of care to provide an AED and Oxyviva equipment and to provide lifeguards who were trained in their use?
[40] Was there, on the facts of this case, a duty on NUS to provide safety equipment, viz, the AED and Oxyviva machines, at their swimming pool and to have lifeguards trained in their use? In my judgment, I do not think that the standard of care that was reasonably to be expected of pool operators at the date the incident took place (in June 2007) extended to providing AEDs and oxygen resuscitators and lifeguards trained in the use of such equipment. I find that at that time it was not common or industry practice for pool owners or operators, even for the Singapore Sports Council (“SSC”), which runs Singapore’s public swimming pools, to provide such equipment. I hasten to add that this may not necessarily be the case today but will say no more on this as it does not arise on the facts before me.
[41] The evidence before me showed that although the technology on which such equipment is based not new, they were until quite recently fairly expensive and this retarded their adoption rate. In any event it is clear that as at June 2007 they were not in widespread use generally and particularly in swimming pools. I deal first with AEDs, which featured fairly prominently in the evidence.
[42] I find the evidence of Professor Anantharaman, who was the chairman of the National Resuscitation Council (“NRC”) from September 2007 among his other appointments and who gave evidence as an expert for the defendants, very useful in this regard and accept the same. The NRC was established by the Ministry of Health in 1998 with the following goals:
(a) To act as the coordinating body representing major groups involved in the teaching and practice of resuscitation;
(b) To promote unity and standardisation in resuscitation practices;
(c) To provide direction, national policies and guidelines for the teaching and practice of resuscitation.
[44] The 2011 guidelines expanded on these efforts. Increased focus was to be given to imparting AED skills to student groups, school teachers, staff of commercial and industrial establishments, and sports officers and instructors. The guidelines also recommended increasing the availability of deployed AEDs in many areas of Singapore such as public buildings, commercial areas, sports and entertainment complexes and educational establishments. I note that even as at 2011, the focus was still on expanding availability of AEDs and training those who might have occasion to use them. And indeed it seemed that by 2011, access to AEDs had expanded so that convention centres, many swimming pools and most major hotels were stocked with such devices.
[46] I also find convincing evidence led to show that AED training was still not widespread in June 2007; lifeguards who had obtained the generally accepted certification that qualified them for employment as lifeguards had not in fact been required to be trained in the use of AEDs. I accept the evidence of the Plaintiff’s witness, Alfred Chua Choon Liong (“Alfred Chua”), a senior manager with the SLSS, in this regard. The SLSS is a non-profit organisation that began life as the Singapore Branch of the Royal Life Saving Society and was renamed the SLSS in 1982. Its mission is to promote aquatic safety and lifesaving. To this end, the SLSS prepares a lifesaving manual which has been published in two editions, the first in 1992 and the second in 2010. These manuals illustrate basic lifesaving skills, resuscitation skills and emergency care techniques for the use of all lifesavers. The SLSS also administers a number of lifesaving courses and awards successful participants with certificates, which are used as the basis for the employment of lifeguards in Singapore. Alfred Chua said that the widely recognised basic certification required for a lifeguard in Singapore was and remains only a Bronze Medallion Award.
[47] It was not disputed that both Cheong and Chua, the two lifeguards on duty on the day of the incident, had achieved this requisite certification. Cheong obtained his certification on 23 March 2005. He also had a certificate issued by the SLSS that qualified him to perform CPR and which was valid from 23 March 2005 to 23 March 2008. He had in fact been working for two years previously, from 2005 to 2006, as a lifeguard at the same NUS swimming pool. When the provision of lifeguards was outsourced, he was employed as a lifeguard by Hydro Aquatic at the suggestion of NUS so that he would continue to have a job. He said that he did not even know that there was an AED at the pool. He had not been trained in its use and would not have used it as he thought it was a medical tool.
[48] Chua held an Award of Merit for life saving along with the Bronze Medallion Award, Bronze Cross and certification as a senior resuscitator. An Award of Merit was a level of certification offered by the SLSS that, Alfred Chua said, was one level higher than that of the Bronze Medallion Award. Chua had only worked at NUS as a lifeguard since April 2007, or about two months before the incident. Previously, she had been working intermittently as a lifeguard since June 2004. In one of her previous jobs, she had observed the oxygen resuscitator demonstrated in a practice session and had some experience of it being used on her. She had also observed the AED being demonstrated but had not actually used it. I find that her experience with and knowledge of both machines was no more than rudimentary and she could not be said to be “trained” in any sense of the word. In fact, her evidence was that when she arrived at the scene with the Oxyviva machine, as it was in plastic packaging she thought that it was still disassembled and because she did not know how to put it together, she let it be. However, I accept that both Cheong and Chua had met and in Chua’s case even exceeded the basic requirements to be employed as lifeguards on the basis that the basic requirement was a Bronze Medallion qualification.
[49] I should point out that Alfred Chua agreed there was no concurrent requirement that lifeguards be trained in the use of AEDs. The SLSS set up a programme in 2009 to train people in the use of AEDs but no actual training has been conducted since there were other training providers in Singapore. Alfred Chua admitted that the NRC’s 2006 and 2011 guidelines differed in that the 2006 guidelines advocated only the use of CPR, while the 2011 guidelines advocated the use of CPR combined with AEDs, and that these standards were also adopted by the SLSS. Alfred Chua further admitted that the first edition of the SLSS’s lifesaving manual, which was the edition in use at the time of the Deceased’s drowning, did not require the use of AEDs by lifeguards. Moreover, the course for the Bronze Medallion Award did not include training in the use of AEDs.
[50] He said however that training in AEDs was recommended and I cannot disagree with that. No doubt, as a matter of best practice, lifeguards should be given comprehensive training in resuscitation techniques including training in the use of resuscitation machines such as the Oxyviva and AEDs. But a recommended practice is not the same as a common practice or industry standard.
[51] The Plaintiff points to a speech by then Minister for Community Development, Youth and Sports Dr Vivian Balakrishnan in Parliament (see Singapore Parliamentary Debates, Official Report (19 July 2005) vol 80 at col 923):
[52] The Plaintiff says that the italicised words show that by the date of the incident, AEDs were widespread and so were lifeguards trained in their use. She also says that SLSS itself had begun to offer courses to train instructors on how to train laypersons in the use of AEDs and indeed that Lim Kay Seng, the sole proprietor of Hydro Aquatic, as well as Sim himself, had attended such courses in early 2007.
[53] With respect, I do not accept that the words of the Minister in Parliament were sufficient to prove that as at 2007, the use of AEDs was as widespread as the Plaintiff claimed or that it was standard practice for lifeguards to be trained in the use of such equipment. The speech cited above at [51] at best shows that there were plans afoot at that point to equip all public swimming pools with AEDs and to train lifeguards in their use and that it was anticipated that this programme would be completed by the stated date. The Plaintiff has not shown that this was actually done and having asserted this as part of her case, the onus was on her to prove it. In fact, Alfred Chua’s evidence was that notwithstanding the Minister’s speech, it was not common practice even for public pools operated by the SSC to have AEDs in 2007, some two years after the speech. I was also taken to local newspaper articles which stated that defibrillators were planned for Singapore Armed Forces camps from June 2013 and that there were plans to create a national registry of AED locations. The inference I was invited to draw was that widespread access to AED remains an effort in progress and that, certainly as at 2007, had not coalesced into standard practice. I note also that there were otherwise no guidelines or standards issued by the SLSS or the NRC that stated that AEDs should be placed in swimming pools and that lifeguards should be trained in their use in June 2007.
[54] In so far as it is necessary, I similarly find that the evidence shows that Oxyviva machines were not in general use in June 2007. Alfred Chua agreed that as at 2007, the SLSS had not issued guidelines that stated that a lifeguard had to be trained in the use of an Oxyviva machine or even in the use of any kind of oxygen resuscitator. The training syllabus for the Bronze Medallion Award also did not require learners to know how to use any kind of oxygen resuscitator, let alone the Oxyviva machine. It was also Lim Kay Seng’s evidence that it was difficult to source for an Oxyviva machine for the NUS swimming pool as there was not one present at the time and he did not initially find a supplier. He only managed to obtain one about one or two weeks before the date of the incident.
Was NUS’s duty of care delegable?
[55] I now turn to the next issue, which is whether NUS’s duty of care to provide qualified and properly trained lifeguards was delegable.
[56] The UK Supreme Court considered this issue in its recent decision of Woodland. The appellant, aged 10, was a pupil attending a swimming lesson organised by her school, within normal school hours and for which the respondent education authority was responsible. The swimming teacher and a lifeguard were provided by an independent contractor who had contracted with the education authority to provide swimming lessons to its pupils. Unfortunately, at some point, the appellant got into difficulties and was found “hanging vertically in the water”. She was resuscitated but suffered serious hypoxic brain injury. A high court judge struck out the claim on the ground that on the pleaded facts, the education authority could not have been said to have owed the appellant a non-delegable duty of care. By a majority, the Court of Appeal agreed and dismissed the appeal. The UK Supreme Court unanimously allowed the appeal as the respondent education authority had assumed a duty to ensure that the appellant’s swimming lessons were carefully conducted and supervised, by whomsoever they might get to perform these functions. The appellant was entrusted to the school for certain essential purposes, which included teaching and supervision. The control of the appellant went with these functions; the swimming lessons were an integral part of the school’s teaching functions.
[57] Lord Sumption who gave the main judgment, and with whom all the other judges agreed, surveyed the origins of the law and cases and gave an admirably succinct analysis of the law, especially at [3] to [5] and [7]. I am, with respect, in entire agreement and gratefully adopt it. Lord Sumption stated that in general, the law of negligence is fault based. In principle, liability in tort depends on a personal breach of duty. The law does not, in the ordinary course, impose personal, as opposed to vicarious, liability for what others do or fail to do. The only true exception to this principle is vicarious liability, which has been expanded recently to include tortfeasors who are not employees of the defendant, but stand in a relationship analogous to employment, eg, Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. This exception is based on public policy. But vicarious liability has never been extended to the negligence of those who are truly independent contracts, (as the swimming teachers in the case before them).
[58] What the common law has done is to find that, in certain cases, a tortfeasor is personally liable not for his own failure to take care, but for failing to procure the careful performance of work delegated to others; these cases being described as cases involving "non-delegable duties". Two major classes of non-delegable duties were identified by Lord Sumption. The first, which is irrelevant here, has to do with cases where a defendant employs an independent contractor to perform some function that is either inherently hazardous or liable to become so in the course of his work. I have already noted Lord Sumption's observation that the care of a swimming pool is not one of such extra hazardous duties.
[59] There is a second category of non-delegable duties which has three essential characteristics identified by Lord Sumption in Woodland at [7]:
[60] I think that this is a crucial passage and the analogy with cases of assumption of duties is instructive. For many decades now, the assumption of a positive duty of care has been the basis for which liability has been found against the defendant. In certain cases, eg, Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, that assumption of a positive duty of care was found to arise out of a special relationship equivalent to contract but that was not contractual. In the so-called employment cases, such as Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the employer had a "non-delegable" duty to ensure that its workmen had a safe system of work. This was because the law took a protective approach to the vulnerable workmen who were not in a position to defend their own interests. In the so-called hospital cases such as Gold v Essex County Council [1942] 2 KB 293 ("Gold") and Cassidy v Ministry of Health [1951] 2 KB 343 (“Cassidy”), the principle was stated that hospital authorities had an obligation to the patient even if such treatment called for an exercise of a special skill which the authorities could not reasonably be expected to supervise or control.
[61] Lord Sumption opined, at [22], that the main problem is to prevent the exception from eating up the rule. Non-delegable duties are exceptional to the fault-based principles of negligence and the difference between an ordinary duty of care and a non-delegable duty must therefore be more than just a question of degree. Lord Sumption, after putting the highway and hazard cases to one side, referred to the judgments of Lord Greene MR in Gold at 301 and of Denning LJ in Cassidy at 362-363 as well as some Australian cases (Commonwealth v Introvigne (19820 150 CLR 258, Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty (1994) 179 CLR 520 and New South Wales v Lepore (2003) 212 CLR 511) that had expanded on the principles identified in those judgments. Lord Sumption then identified, at [23], the underlying principle upon which non-delegable duties of care rest and their defining features as follows:
(a) The claimant is a patient or child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(b) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(c) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.
(d) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(e) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.
[62] It will be seen that most of these elements are clearly missing on the facts of the case before me. The Deceased was not a patient or a child or in any way especially vulnerable. He had a severely compromised heart, a point which I will take up later in more detail, but his illness was not apparent to anyone including himself. He did not have an antecedent relationship with NUS that would justify the imputation to it of an assumption of a positive duty to protect him from harm. The Deceased was engaged in an activity of his own volition and choosing and for which there were some inherent but not unduly hazardous risks. I therefore find that NUS’s duty of care to provide properly trained lifeguards was a delegable duty. Whether NUS did in fact delegate this duty is an issue I will discuss at a later point.
Breach of duty of care
[64] Furthermore, the standard of care is based on the standard of reasonableness as determined at the time of the tortious event: PlanAssure PAC v Gaelic Inns Pte Ltd [2007] 4 SLR(R) 513 at [54]. I have already made some reference to what was to be expected from lifeguards at a swimming pool of this nature in June 2007 at [32] to [39] above.
Was NUS negligent in appointing Hydro Aquatic to outsource their duty of providing properly trained lifeguards or negligent in not checking if Hydro Aquatic had carried out its duties properly?
[65] Although NUS’s duty to provide properly trained lifeguards for its swimming pool is a delegable duty, NUS would still be liable if it was negligent in appointing Hydro Aquatic as its contractor to do so: see The Law of Torts in Singapore at para. 19-080 citing MCST Plan No 2297 v Seasons Park Ltd [2005] 2 SLR(R) 613 (“Seasons Park”) at [37].
[67] The Plaintiff was not really able to show that NUS was negligent by awarding the contract to Hydro Aquatic and the reduction in the tender price per se is not evidence of negligence. The fact that Hydro Aquatic was the only tenderer and was eventually awarded the contract is also not evidence of any negligence. I note however that other than Mr Beh’s brief foray into the details of the awarding of the contract, the Plaintiff’s complaints did not really focus on NUS negligently appointing Hydro Aquatic as their contractor.
[68] It was also the Plaintiff’s pleaded case that NUS was negligent in supervising Hydro Aquatic. NUS’s defence is that if Hydro Aquatic was a properly appointed independent contractor, it followed that its employer NUS would not be vicariously liable for Hydro Aquatic’s negligence if any: see Seasons Park at [37]. The real issue then is: was Hydro Aquatic an independent contractor? An independent contractor is defined in Charlesworth & Percy on Negligence (Christopher Walton gen ed) (Sweet & Maxwell, 12 Ed, 2010) at para 3 – 172 as:
[69] The test was stated by McCardie J in Performing Right Society, Limited v Mitchell and Booker (Palais de Danse), Limited [1924] 1 KB 762 in the following terms, at 767:
[70] I turn first to the requirement specifications of the tender under which Hydro Aquatic was appointed to provide lifeguard and pool cleaning services. These specifications were incorporated into the contract between NUS and Hydro Aquatic. I think it is clear that according to the terms of this contract, NUS retained a considerable amount of control over the manner in which Hydro Aquatic was to carry out its duties; Hydro Aquatic was not free to decide for itself how the work should be done. There are a number of clauses that make this clear. Clause 1.2 stated that the successful tendering agency was to “carry out the works in accordance with these specifications, Conditions of Contract and to the satisfaction of the Facility Officer.” “Facility Officer”, although not defined there, undoubtedly refers to the officer employed by NUS who is responsible for care and management of the sporting and recreational facilities of the university. I think in the present case the Facility Officer was Sim. Although his actual designation was the “Management Assistant Officer in the Office of Student Affairs” of NUS, he stated in his affidavit of evidence-in-chief that he was in charge of the booking and maintenance of facilities within the sports and recreation centre of NUS. In any case, there is no doubt that the Facility Officer was an employee of NUS and was entitled to exercise, on behalf of NUS, supervisory control over the activities of Hydro Aquatic.
[71] Under cl 4.2, the lifeguards on duty were required to attend twice-weekly briefings at the facility office of the sports and recreation centre. By cl 4.3, the Facility Officer was permitted to request for the deployment of extra lifeguards with two weeks’ notice. Further, under cl 6.1 which set out the duties and responsibilities of the lifeguards, part ix states that in the absence of the Facility Officer or his assistants, the appointed lifeguard in charge was to be fully responsible for the proper supervision and operation of the pool. This suggests that there was a hierarchy of control over the day-to-day workings of the pool, at the top of which was the Facility Officer. Under part xiii of cl 6.1, the lifeguards were further required to do any additional duties assigned by the Facility Officer as required. Under cl 7.3, the lifeguards had to position themselves “as instructed by the Facility Officer and his assistants”. Under cl 7.13, the lifeguards were to take instructions only from certain persons: the senior manager, managers and sports officers of the Sports and Recreation Centre, and the Facility Officer and duty officers and “any other personnel as authorised by the Facility Officer from time to time.” Significantly, cl 15.1 provides for liquidated damages for breach of contract by the successful service agency (successful tenderer) which includes, inter alia, damages set at $50 for each case of “failure to carry out instructions given by staff from” NUS and $100 damages for each instance of failure to be alert while on duty.
[72] I have gone into the clauses of the tender requirements in some detail to illustrate the fact that NUS had contracted for and retained for itself a very considerable degree of control over the way and manner in which Hydro Aquatic carried out its duties. It was certainly not a case in which it had delegated its duties to an independent contractor and left it to the independent contractor to carry out the job. There were in fact regular equipment checks by a staff member of NUS. Lim Kay Seng was taken to the notes of a meeting on 19 September 2007 attended by himself, Koh Yong Chea, Sim, and two others. After the incident on 6 June 2007, NUS had conducted a review of the safety conditions at the pool and the findings of the review were communicated to Lim Kay Seng at the meeting on 19 September 2007. The first note of the meeting was in the following terms:
[73] Under cross examination, Lim Kay Seng said that earlier on, he had been directed to place lifeguards at opposite lengths of the pool but his evidence was that he had disagreed at that point. It was only at this abovementioned meeting that he agreed that this was to be done. It is clear that up to 6 June 2007, NUS never checked whether their directions had been complied with. In my view the meeting and Lim Kay Seng’s evidence illustrate the point that NUS possessed, and had exercised, close and detailed supervisory control over Hydro Aquatic and the performance of the latter’s duties. Their relationship was not one in which NUS had fully delegated all aspects of pool safety to an independent contractor. It was not just a case of what was to be done; NUS reserved to itself the right to instruct Hydro Aquatic how it was to be done.
[74] I therefore find that Hydro Aquatic was not an independent contractor. NUS, having retained for itself a very high degree of control over the manner in which Hydro Aquatic was to carry out its work, had a duty to continue to supervise Hydro Aquatic. Hydro Aquatic was appointed from 1 April 2007 and the incident occurred on 6 June 2007. It was just barely two months into the contract and Hydro Aquatic were still in the process of complying with all the requirements placed on it. I have already noted how the Oxyviva was procured just weeks before the incident. Beyond the evidence I have considered above, there was not much evidence led on the extent to which NUS had supervised the safety arrangements at the swimming pool during that period of two months. I will return to this point later when I consider the alleged negligence of the lifeguards.
Should NUS, which recognised the benefits of having the AED and Oxyviva equipment at its swimming pool, be held to that higher standard?
[75] The Plaintiff’s attack on the appointment of Hydro Aquatic homes in on the tender documents under which NUS had tendered out the provision of pool cleaning and lifeguard services at its pool. Under cl 8.1 of the requirement specifications which were incorporated into the contract between NUS and Hydro Aquatic, Hydro Aquatic was to provide lifeguards with a Bronze Medallion award from the Singapore Life Saving Society or its equivalent and it was expressly stipulated that these lifeguards had to be trained in spinal injury management, use of an Oxyviva resuscitator and defibrillators. Under cl 8.3, Hydro Aquatic was to provide an Oxyviva machine and an AED at the swimming pool and to maintain the equipment in good working condition. The Plaintiff says that as the pool operator had specified the requirement that such equipment were to be provided and that the lifeguards were to be trained in their use, this was the standard of care which it had to meet.
[76] Mr Behfor the Plaintiff relies on the case of Sato Kogyo (S) Pte Ltd and another v Socomec SA [2012] 2 SLR 1057 (“Sato Kogyo”) for the proposition that NUS, although operating a private swimming pool, having set itself a higher standard of lifeguarding had to adhere to it and it would not lie in the mouth of NUS to claim that the less stringent requirement was sufficient. Mr Beh relies particularly on the remarks of Judith Prakash J at [52]:
[77] With respect, I do not agree with Mr Beh’s submissions for the following reasons. As Lord Greene MR noted in Gold at 301, the extent of the obligations which one person assumes toward another is to be inferred from the circumstances of the case. In the present case, these tender requirements created obligations that in the first instance arise only as between the parties to the contract. It may be that as between NUS and Hydro Aquatic there may be concurrent obligations in contract and tort with reference to the contract terms and this may be relevant if the Defendants are found liable and the time comes to apportion liability between them. But there was no authority given to me for the proposition that as a third party to the contract the Plaintiff is entitled to rely on the standards stipulated therein in an action for negligence against one of those parties. I think that NUS was contractually entitled to assure itself of a higher standard of lifeguard services than would have otherwise applied in the industry. I do not think that in so doing it had represented to patrons of the swimming pool that its lifeguards were trained in the Oxyviva machine and in the use of AEDs and thereby assumed responsibility if the patrons had relied on it in this regard. The court has still to ascertain the applicable standard of care having regard to the standard of a reasonable person in the position of the defendant. My conclusions on this have already been set out above.

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BNM (administratrix of the estate of B, deceased) on her own behalf and on behalf of ors v National University of Singapore and anor

Grounds of decision

The respective cases

Facts

My decision

The Plaintiff’s claim in negligence

Duty of care

Was there a duty of care to provide properly trained lifeguards?

Was NUS’s duty of care delegable?

Breach of duty of care