Lim Guan Cheng v JSD Construction Pte Ltd and Another

[1] The plaintiff is the owner of 281 River Valley Road, Singapore (‘the property’), which is a two-storey residential ‘peranakan’ house. The property is under conservation. The second defendants are the owners of the adjoining building known as 279 River Valley Road, Singapore (‘the Union House’). The first defendants are the contractors of the second defendants and they were engaged to pull down and rebuild the Union House. In the course of construction, they negligently caused cracks to the walls of the property. The soil and foundation of the property were also affected.

[2] The damage to the property was so severe that on 7 August 2000, the Building Control Authority issued a Closure Order under section 24 of the Building Control Act, Cap 29 after a joint inspection with the first defendants. The plaintiff and her family were evicted from the property as it was declared unsafe for human habitation. The plaintiff had to live in a rented property.

[7] The property was constructed in 1910 or thereabouts. It was constructed using traditional strip foundations and reinforced concrete structural framework. Steel I beams were included to the central atrium and rear out kitchen areas. The infill panels were constructed using brick which have been plastered and painted over throughout. The second storey consists of a timber joint framework incorporating timber strip boarding over. The roof consists of a main pitched roof incorporating rafter/purlin framework with clay tiles over, a corrugated translucent sheeting roofing system to the central atrium and a mono pitched roof incorporating steel profiled sheeting to the rear area.

[8] The excavation work carried out in the Union House by the first defendants in March/April 2000 caused extensive damage. There was cracking to the front, side gable end and rear walls and further cracking to the concrete/substrate flooring throughout the property. The internal walls, ceilings and roofs also suffered cracks.

[9] It was not in dispute before the Assistant Registrar that substantial movement of the property had occurred. The developmental works, including the excavation, in the Union House caused ground settlement under and adjacent to the gable end and front elevation of the walls of the property. In August 2000 further ground movement had occurred to the property. They were serious cracks, which are fully described in the Final Report of Mr Bruce Loggie Jamieson (‘Mr Loggie’).

[10] Mr Loggie recommended that the repairs and replacement works should reinstate the property to its original condition in relation to both the internal and external areas. Such rectifications include demolition and excavation works; there would also be reinstatement of the main structural brick walls. Internally, the floors at Level 1, including the front porch and rear out-kitchen area, have to be hacked up. A damp proof membrane system is provided and the system has to dress all walls to minimum height of 200 mm throughout. All internal and external floor areas have to be re-screed, ready to receive tiled floor finish throughout. The staircase has to be repaired with replacement timber (teak) to match the existing staircase. New timber (teak) rafters and floorboards to match the existing items have to be provided and installed.

[11] In relation to the walls of the first and second storey, the rectifications consist of the re-construction of the internal atrium plasterboard partition walls. The timber flooring has to be raised. All internal bedroom partition walls have to be reconstructed to match the existing construction. The cracked brick walls, notably the gable end, front and rear walls, have to be removed and ‘re-stitched’ to receive plaster finish.

[12] The rectifications of the main roof consist of removing all roof tiles and setting them aside for reuse. After matching timber structural framework is installed, the roof require the supply and installation of new insulation foil, timber battens and the re-fixing of the new roof tiles, using galvanised nails at 400 mm centres. As for the central atrium roof, after the existing structural framework and roof sheets have been re-positioned and installed, matching replacements of some framework and roof sheets would have to be supplied and installed.

[13] The rectifications also entail plumbing and drainage works and electrical works. All damaged plumbing/drainage works occasioned by the movement and reinstatement works are to be replaced as necessary.

[16] In his two reports, Mr Hatfield noted that the soil beneath the existing boundary wall, which abuts the Union House, has been significantly disturbed. The soil had suffered reduction in strength due to loosening by disturbance. Mr Hatfield opined that “it is imperative to base any remedial foundation measures at or below the level of the No. 279 basement.” This would be approximately 1.0m below the level that any likely alternative proposal for underpinning or parallel support might be installed.

[17] Since micropiling was no longer available after the construction of the Union House, Mr Hatfield recommended replacement of the boundary wall by a new wall erected upon a reinforced concrete strip footing based at the level of the No. 279 basement. This would properly reinstate the boundary wall upon a dependable, undisturbed base. It was recognised that the installation of underpinning, or of a parallel support scheme based at sufficient dept, would require much tedious hand excavation and certainly cause further settlement damage to the wall. The boundary wall was at that time based upon an unreinforced masonry foundation. It had already dropped in the order of 200mm, and had been severely cracked. In Mr Hatfield’s view, grouting could never fully penetrate the fine cracks to reinstate the integrity of the wall. He also stressed that replacement of the wall upon a strip footing lower down would not be more expensive and offered far greater assurance than the alternative of underpinning or parallel support with their attendant risk of further damage to the wall.

[19] According to both Mr Hatfield and Mr Loggie, the main specifications should entail the following items of rectifications:-

[20] Mr Loggie testified that based on the works as set out in his Schedule of Works, which I have summarised above, he had invited and received tenders from Acolite Construction Pte Ltd, Bun Sze Kar General Contractor Pte Ltd and Mun Siong Construction & Renovation Pte Ltd. All three tenderers attended a site show round of the property. On 22 October 2002 the 3 tenderers submitted their tenders. Acolite’s tender price was $386,000.00, Bun Sze Kar’s was $389,000.00 and Mun Siong’s was $474,000.00. It should be noted that the priced tender excluded GST, for which 5% has to be provided.

[21] Each of the 2 tenders comprised of 26 items in which the works were described in considerable details. The item which attracted the highest quote was the foundation works. Mun Siong, whose tender was accepted by the Assistant Registrar as reasonable, put down the sum of $121,000 in relation to the foundations works. The Schedule of Works on which the tenders were based was also accompanied by sketch plan drawing of the property and drawings of the ‘proposed footing for boundary wall’. Bun Sze, which quoted $389,000 for the entire contract, took care to qualify their tender by additional terms set out in their letter of 24 October 2002 to Mr Loggie. They wanted to be paid for any addition or alteration and they made it clear that any requirement for any item not mentioned in the quote would be deemed ‘as extra and chargeable accordingly’.

[22] The plaintiff, aged 82, had to vacate the property following the Closure Order on 7 August 2000. The plaintiff and her family moved out and stayed with the eldest daughter on a temporary basis until 10 December 2000. The scope of the assessment for damages was defined by the Order of Court of 3 June 2002. It was suggested that she could have stayed with the two elder daughters. It was not practicable to live with the eldest daughter . She had a 3 room flat in Jurong and there were already 4 occupiers. The plaintiff had to stay with the maid if that was the only accommodation available. The house of the 2 elder daughter was too far away. Access by car was the only practical way. The plaintiff has to undergo medical check-up monthly. She also has to visit the Chinese physician. It was therefore not surprising that it was the first defendant who had suggested that she rented pending restoration of the property.

[23] The alternative accommodation at 257 River Valley Road, #02-00, Valley Lodge, River Valley Road, Singapore, is smaller in area and amenities than the property. It is in a less expensive area. The rental of $2,200 per month was regarded as reasonable.

[24] In relation to the period of the rental, it was common ground that the rectification works could take 8 months, at least. Mr Loggie thought it could take 10 months. The plaintiff claimed that the rental from 8 August 2000, the date of the Closure Order, to 18 June 2003 @ $2,200.00 per month would be $75,680. The rental for 9.5 months covering the period for processing, approval and completion of the works would be $20,900.

[25] The defendants’ expert and professional engineer, Mr Tay Aik Jiun (‘Mr Tay’), noted that the gable wall had tilted by 14mm for a 9m high wall. He observed that this would be less than the allowable 18mm based on the deflection limit of H/500 allowed for in the design code of buildings.

[26] Both parties agreed that the foundation had to be re-done. How it was to be done was the dispute. In view of the stabilization of the gable wall, and there was no further settlement, Mr Tay opined that the cracks in the gable wall could be pressure grouted with high-strength non-shrink grout. He described the rectification works as follows:-

* Bun Sze’s quotation was $94,600.00.

[32] The defendants are dissatisfied over the award of 40 months rental which they contended was excessive. They submitted that the award should be limited to 8 o 12 months from December 2000. The defendants asserted that rectification works could have been commenced by the plaintiff 6 months after the settlement of the ground had stopped, which was detected in February 2001. I shall return to this complaint when I recount the grounds of decision of the Assistant Registrar.

[33] The Assistant Registrar addressed several issues in her grounds of decision. The question which was the appropriate method of rectification was considered. She had considered both recommendations. She found that “neither party (had) shown on the balance of probabilities that the method proposed by the other party (was) inherently unworkable or unfeasible in restoring the structural integrity of the (property).” The Assistant Registrar further noted that the defendants’ quotes did not include variation works that would arise from further damage to the property to the rectification works. No reasonable allowance was made for these works. There was also ‘considerable doubt whether the quotes (were) comprehensive given that some items of work were not spelt out’, obviously referring to the items I had spelt out in this judgment.

[35] It was contended that to demolish the gable wall was a ‘legal impossibility’ because the Urban Renewal Authority, as the competent authority, would not approve the demolition of the gable wall. Ms Lucy Long, who gave evidence that URA general guidelines on properties under conservation require the end gable wall of such a property to be retained unless a professional engineer confirms that it is “structurally unsound”, did not in her evidence go so far as to say that approval for the demolition of the wall would not be granted. Given the competing considerations, I was of the view that the reasonable approach to take in the assessment was to proceed on the basis that the demolition of the wall would be granted, in view of the merits. If no approval was forthcoming, and the defendants’ proposals had to be resorted to, there was a satisfactory margin in the difference between the two quotes to take care of the omissions and concerns of the defendants; proposal which had been set out earlier. In this connection, I did not understand the Assistant Registrar’s remark that “it would be premature to shut out the plaintiff’s proposed method of works”. I did not think that the matter had anything to do in terms of time, whether it was premature or otherwise. It had to do with balancing what would be reasonable and fair to both parties and, in particular, what would restore the plaintiff’s property but for the negligence was the primary consideration.

[39] The court held that the market survey reports did not offend the rule against hearsay and was evidence of the fact in issue and its admission fell within the general provision of section 5 of the Evidence Act for the admission of the evidence. The learned Judge quoted Mahon J in Customglass Boats Ltd v Salthouse Brothers Ltd [1976] RPC 589 as saying what was reported at p 744H-I in the following terms:-

[44] Mr ES Tang laid emphasis on the fact that at $360,000.00, one could pull down the property and build a new house of equivalent size at that price. He cited the fact that he was about to award a project of the size similar to that of the property at $360,000.00. In my view, the Assistant Registrar was entitled on the weight of the evidence to reject this rough, thumbnail comparison in favour of the views of Mr Hatfield and Mr Loggie.