High Court · Decided 23 August 2018

Wei Siang Design Construction Pte Ltd v Euro Asset s Holding (S) Pte Ltd

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[2018] SGHC 182Case no. Suit No 993 of 2012

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Grounds of decision

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Introduction
[1] When a conservation building in a historic district in Singapore is renovated, all those involved in the renovation must comply with Conservation Guidelines issued by the Urban Redevelopment Authority (“URA”). The case before me arises from the renovation of a conserved shophouse in Chinatown which deviated substantially from these guidelines. Parts of the shophouse which were to be retained were demolished and rebuilt in a non-compliant way. Parts of the shophouse which were to be constructed in a certain way were constructed in a non-compliant way.
[3] The owner’s case is that: (a) the architect failed to ensure that the drawings used for the renovation were consistent with each other; (b) the engineer failed to ensure that his structural drawings were consistent with the other drawings; and (c) the contractor failed to clarify with the architect the obvious inconsistencies between the drawings presented to it and instead proceeded to demolish architectural features and to rebuild them, doing both in a manner inconsistent with the drawings. The plaintiff also alleges that the architect and the engineer failed to detect the contractor’s deviations and failed to insist that the contractor rectify them in a timely manner.
[4] The main question before me is which one or more of these three parties, if any, is liable for the owner’s loss. A subsidiary question before me is whether the owner owes the contractor certain sums for work done.
[5] Having heard and considered the parties’ submissions, I now set out my decision. On the owner’s claim, I hold that:
(a) The contractor, the architect, and the engineer are all liable to the owner in respect of the deviations to: (i) the second and third storey rear slabs; (ii) the rear roof slab; and (iii) the rear external staircase;
(b) The contractor and the architect, but not the engineer, are liable to the owner for the deviation at the rear boundary wall.
The quantum of damages payable to the owner by these three parties will be assessed separately. That assessment will also deal with the apportionment of liability as between each of these three parties. As against the owner, however, the three parties are jointly and severally liable for the whole of the owner’s loss.
[6] On the contractor’s claim against the owner, I allow the claim in respect of variation works done to install an additional rainwater drop pipe. All of the contractor’s remaining claims against the owner are dismissed.
The factual background
The shophouse
[7] The conservation shophouse at the centre of this dispute is at 25 Boon Tat Street, Singapore 069622. It is located within the Historic District of Chinatown. The URA considers that district to be one in which the “strictest form of conservation is practised”. Renovation of shophouses in Chinatown are therefore subject to the URA’s Conservation Guidelines.
The parties
[8] The owner of the shophouse is Euro Assets Holding (S) Pte Ltd. In 2011, the owner initiated a renovation project to make certain additions and to carry out certain alterations to the shophouse. The owner is, as a matter of form, the sole defendant to the contractor’s claim for unpaid sums due for work done. As a matter of substance, however, the owner is the plaintiff in this action in all but name.
[9] The contractor is Wei Siang Design Construction Pte Ltd. The owner engaged the contractor to carry out the addition and alteration works to the shophouse. The contractor is the plaintiff in the action and the first defendant to the owner’s counterclaim.
[10] The architect is Chia Soo Ong Hector. He is a registered architect and the Managing Director and a shareholder of Nota Design Architects + Engineers Pte Ltd (“NDAE”). The architect was at all material times the principal architect for the project and also the Qualified Person (Architectural) in the statutory regime under which the alterations and additions were carried out. The architect is not a party to the contractor’s claim and is the second defendant to the owner’s counterclaim.
[11] The engineer is Lee Ong Fee, also known as Lee Tat Sang. He is a professional engineer and was the civil and structural engineer for the project. He was also the Qualified Person (Structural) in the statutory regime under which the alterations and additions were carried out. The engineer is not a party to the contractor’s claim and is the third defendant to the owner’s counterclaim.
The relationship between the parties
[12] The only contract between any of the parties in this action is the contract between the owner and the contractor. That contract came about when, under a letter of award dated 19 July 2011, the owner engaged the contractor to be the main contractor for the project.
[13] The owner has no contract with the architect or with NDAE. The owner’s contract for architectural services is, instead, with a project consultancy firm related to NDAE and known as Nota Group Pte Ltd (“NGPL”). Both NDAE and NGPL are members of a group of companies known as the Nota group.
[14] The owner entered into its contract with NGPL in September 2010. Under that contract, NGPL was to provide the following professional services for the project: “architectural, structural design, interior design, M&E design, design development, submission and supervision of the … project”. NGPL acted as project consultants and managed various aspects of the project. Three of its personnel in particular are important: Lee Boon Pin, Declan Reilly, and Danny Goh. I shall refer to these three individuals collectively as the “project management team”.
[15] Pursuant to NGPL’s contract with the owner, NGPL engaged NDAE to provide architectural services for the project. NDAE then nominated the architect as the individual to provide the architectural services. The architect was the only registered architect in NDAE and also in the wider Nota group. The relationship between NGPL and NDAE, although contractual, is not recorded in any formal written agreement.
[16] In December 2010, by a written contract, NDAE engaged the engineer to provide engineering services for the project.
[17] For whatever reason, the owner makes no claim against NGPL or NDAE in this action.
The drawings and colour coding convention
[18] It is essential to begin the summary of the facts by describing and distinguishing between five sets of drawings.
(a) First are the tender drawings. As the name suggests, these are drawings issued to contractors who are invited to tender for the project. NGPL prepared the tender drawings.
(b) Second are the written permission drawings. These are the drawings submitted by the architect to the URA setting out the work which the owner intends to carry out. The URA considered and approved these drawings before it granted written permission dated 2 March 2011 for the owner’s works to proceed. The written permission drawings are architectural drawings which set out the plan (top) and elevation (side) views of the shophouse. The written permission drawings are substantially the same as the tender drawings.
(c) Third are the structural drawings. These plans were prepared by the engineer and were approved by the Building & Construction Authority (“BCA”) on 5 May 2011.
(d) Fourth are the construction drawings. The contractor gave discovery of the construction drawings in this action. The contractor says that the construction drawings were part of the tender drawings and were turned into construction drawings. The construction drawings are substantially the same as the tender drawings, except that the construction drawings are in black and white rather than in colour.
(e) Fifth and finally are the building plans. The building plans are architectural drawings prepared by the architect and submitted to the BCA for approval.
[19] Several of these drawings are prepared with the use of a software package known as Auto Computer Aided Design or ‘AutoCAD’. Construction professionals and contractors who use AutoCAD adopt a specific colour-coding convention in depicting architectural features in these drawings. This convention is set out the Code of Practice for Construction Computer Aided Design (“Code of Practice”). The colour-coding indicates whether a particular feature is: (a) an element of the existing structure to be retained, indicated in blue or cyan; (b) a proposed new element to be constructed, indicated in magenta or purple; or (c) an existing element to be demolished, indicated in yellow.
The deviations
[20] The project breached the URA’s Conservation Guidelines in the manner in which four features of the shophouse were treated. These breaches also led to the URA refusing to give its approval to BCA issuing a TOP for the shophouse.
[21] The first of the four features is the rear slab on the roof of the shophouse. The rear roof slab was to be demolished and reconstructed. The original rear slab accommodated a drop in elevation from the front slab. As required by the conservation guidelines, the reconstructed rear roof slab was to retain this drop in elevation. Instead, the contractor reconstructed the rear roof slab flush with the front roof slab, ie without any drop in elevation.
[22] The second feature is the rear floor slabs on the second and third storey. The original rear floor slabs on the second and third storeys had a drop in elevation from the original front floor slab on the same storey. This drop in elevation was again to be retained. The contractor demolished these rear floor slabs and reconstructed them flush with the front floor slabs on each storey, ie without the drop in elevation.
[23] The third feature is the rear external staircase. The contractor built this staircase using a structure comprising thick columns and beams. The parties refer to this as the “‘H’ structure”. The “H” structure appeared in neither the written permission drawings nor the construction drawings. The URA rejected the “H” structure as being in breach of the Conservation Guidelines because it was “too heavy looking and [changed] the architectural character of the rear service block”.
[24] The fourth and final feature is the rear boundary wall. According to the written permission drawings, the rear boundary wall was to be built with a height of 1.0 metre. The contractor built the wall with a height of 1.8 metres.
The legal background
[25] Having summarised the factual background, I now turn to the legal background. At the root of the legal background is the statutory regime governing constructions work in Singapore and, in particular, governing structural work done to buildings covered by the URA’s Construction Guidelines.
[26] Where an owner proposes to do any structural work to a building in Singapore, he must comply with the Building Control Act (Cap 29, 1999 Rev Ed). In addition, where an owner proposes to do any work to a conservation building in Singapore, he must also comply with the Planning Act (Cap 232, 1998 Rev Ed). I will briefly describe each statute in turn.
The Building Control Act
[27] The Building Control Act regulates structural works to any building. The BCA is the competent authority to grant permission to carry out structural works under the Act and to grant a TOP when the works are completed.
[28] Section 6 of the Building Control Act sets out the procedure for an application for a permit to carry out structural works in the course of any building works. This application takes the form of a joint application by three parties: (a) the developer of the building works; (b) the builder appointed by the developer; and (c) the qualified person whom the developer or builder has appointed to supervise the works.
[29] Section 2 of the Building Control Act provides that the qualified person may either be an architect or an engineer who has a practising certificate in force. But rr 4 and 6 of the Building Control Regulations 2003 (S 666/2003) read with the Third Schedule to those regulations provide that there are certain categories of works for which only a professional engineer (and therefore not an architect) can be the qualified person.
[30] In this case, the engineer took it upon himself to declare in the joint application to the BCA for permission to carry out structural works that he was the qualified person to supervise the structural works. He also confirmed in cross-examination that the submissions which he made to the BCA under the Building Control Act were made in his capacity as the qualified person for structural works. Hence, I shall refer to the engineer as “QP (Structural)”.
[31] It is not disputed, however, that it was the architect – and the architect alone – who was responsible for submitting the building plans to the BCA under the Building Control Act.
The Planning Act and the Conservation Guidelines
[32] Section 11 of the Planning Act read with the Planning Act (Appointment of Competent Authority) Notification (Cap 232, N 7, 2007 Rev Ed) empowers the URA to issue guidelines for the conservation of buildings or land within a conservation area and for the protection of their setting. It is not disputed that the owner’s shophouse is subject to a set of Conservation Guidelines which the URA issued under this power in 2006.
[33] Section 12(2) of the Planning Act prohibits any person from carrying out any works within a conservation area without conservation permission. Conservation permission is a type of “written permission” as defined in s 2 of the Planning Act.
[34] Under Schedule 1 of the Planning Act, a qualified person for the purposes of the Act includes a registered architect, a registered professional engineer and a registered land surveyor. Where a conserved building is involved, however, the URA’s guidelines impose more stringent conditions on who can be a qualified person, depending on the degree of the impact of the works on the conserved building. The URA defines Category 1 Works as works which “affect the key elements of conserved buildings” and have a “significant impact on the architectural character and spatial integrity of conserved buildings”. Where an owner proposes to do Category 1 Works to a conserved building, the qualified person in the submission for written permission can only be a registered architect (and therefore not an engineer).
[35] In the case before me, both the architect and the engineer knew that this project involved Category 1 Works. It is not disputed that the architect was the qualified person for all submissions of plans to the URA. I therefore refer to him as “QP (Architectural)”.
[36] Rule 3 of the Planning (Declaration by Qualified Person) Rules (Cap 232, R 11, 2007 Rev Ed) provides that every application to the URA for written permission must be accompanied by a declaration by a qualified person that the information contained in the “form, document, plan or drawing” submitted for the purposes of the application is true and correct in all material particulars, and that every such form, document, plan or drawing has been completed and prepared in accordance with the Act, with rule 3 of the Planning (Development) Rules 2008 (S 113/2008), and such other requirements as may be specified by the URA in respect of the application.
Interaction between the Building Control Act and the Planning Act
[37] Where construction work to be carried out to a building is subject to both the Building Control Act and the Planning Act, the BCA will not issue a TOP unless the URA approves. The URA will not give its approval if the terms of the URA’s written permission have been breached.
[38] In this case, as I have set out at [20]–[24] above, four features of the work carried out on the shophouse deviated in significant respects from the terms of the URA’s written permission. When the architect applied for TOP for the shophouse, the URA declined to waive the deviations. The BCA therefore declined to issue the TOP until rectification works were carried out to bring the work done to the shophouse into compliance with the terms of the URA’s written permissions.
The delays in obtaining URA’s approval and in obtaining TOP
[39] The contractual completion date for the project was 22 November 2011. There was some suggestion that the contractor secured an extension of time to 11 December 2011. That is not, however, material for present purposes.
[41] The architect submitted a series of similar amendment application in April 2012 and May 2012. The URA rejected them both.
[42] In October 2012, the owner changed architects. The new architect, Philip Yong, submitted another amendment application to the URA in November 2012, in effect seeking again a waiver of the deviations. That too was rejected.
[43] Philip Yong then changed tack. In July 2013, he submitted a fresh application to the URA, now seeking written permission to rectify the deviations. He proposed to do this by:
(a) Demolishing the existing rear block, comprising the rear roof slab and the second and third storey rear floor slabs, and reconstructing them at the original heights as indicated in the written permission drawings;
(b) Demolishing the non-compliant rear external staircase and constructing a new cantilevered staircase; and
(c) Demolishing the rear boundary wall and reconstructing it at a height of 1.0 metre as indicated in the written permission drawings.
[44] In September 2013, the URA approved Philip Yong’s application and granted written permission for the rectification works to be carried out. The owner appointed a new contractor and a new engineer to do so.
[45] The rectification works were duly carried out and completed in September 2014. The delay of almost three years meant that the necessary approvals for the certificate of statutory completion (“CSC”) had already been obtained by September 2014. It was no longer necessary, therefore, for the owner to go through the intermediate step of securing TOP before occupying the shophouse. The project received its CSC on 4 December 2014 and the owner went into occupation.
This action
Procedural history
[46] The contractor began this action in 2012 as a claim against the owner for unpaid sums due for work done on the project. The owner in turn counterclaimed damages from the contractor for loss cause by the deviations. The architect and the engineer were then joined as defendants to the owner’s counterclaim.
[47] The trial of the contractor’s claim has not been bifurcated whereas the trial of the owner’s counterclaim is bifurcated. As far as the claim is concerned, therefore, this judgment deals with both liability and quantum. As far as the counterclaim is concerned, this judgment deals only with liability.
[48] By a series of agreements, the contractor’s claim against the owner has been considerably narrowed. As a result, the substance of this action is now really about the counterclaim rather than the claim. I therefore begin with the counterclaim before turning to the claim.
The parties’ cases on the counterclaim
[50] The owner’s case is that all three defendants to its counterclaim are – to varying extents – responsible for its loss. The contractor is liable because it failed to clarify inconsistencies in the drawings with the architect. Instead, the contractor blindly demolished what was not meant to be demolished; and, in rebuilding the features, it failed to rebuild them according to the drawings. The architect is liable because he was the professional overseeing the project but failed to ensure that his drawings and the engineer’s drawings were consistent with the drawings approved by the URA. Finally, the engineer is also liable because he failed to ensure that his structural drawings were consistent with the drawings approved by the URA. Moreover, both the architect and the engineer failed to detect the contractor’s deviations during their respective site inspections and failed to have the deviations rectified in a timely manner.
[51] The contractor, the architect and the engineer respond with mutual finger pointing.
[52] The contractor’s response is that it has no obligation to clarify divergences between the drawings, and that as long as it follows one of the various sets of drawings, it is not in breach of contract. In any event, the architect approved the demolition and rebuilding of the various features.
[53] The architect’s response is that he owed no duties to the owner because he is not in a contractual relationship with the owner. But even if he did owe a duty of care in tort to the owner, he says that he discharged that duty because detecting deviations such as those which occurred here is not within the scope of that duty. The cause of the owner’s loss and damage is the contractor’s failure to follow the approved drawings.
[54] The engineer’s response is that he owed no duty to the owner to ensure consistency between drawings or to detect deviations from the drawings such as those which occurred. Instead, it is the architect’s duty to ensure that the various sets of drawings are consistent with each other and that no deviations occur when the contractor carries out the works. That is because the architect is required by statute to be the professional overseeing a project such as this. Alternatively, the contractor should be held liable because he failed to comply with the drawings.
Issues to be determined on the counterclaim
[55] The most significant legal feature of this case is that the owner has no contract with either the architect or with the engineer. The fundamental issue which is in controversy, therefore, is whether either the architect or the engineer owed a duty of care to the owner.
[56] I therefore summarise the issues which I have to decide on the counterclaim as follows:
(a) Did the architect owe a duty of care to the owner?
(b) Did the engineer owe a duty of care to the owner?
(c) Were any of the four deviations identified above at [21]–[24] above caused by one or more of the following:
(i) a breach of contract by the contractor;
(ii) a breach of any duty of care which the architect owed the owner; or
(iii) a breach of any duty of care which the engineer owed the owner?
Preliminary issue: what were the exact duties owed?
[57] Before I turn to analyse these issues, it is necessary to set out clearly the specific duties which the owner claims the architect and the engineer owed it. The owner argues two specific duties.
[58] The first of these duties is a duty to:
I shall refer to this duty as the “drawings duty” and to the set of factual allegations underlying this aspect of the owner’s claim as “drawings failure”.
[59] The second duty is a duty to:
I shall refer to this duty as the “supervision duty” and to the set of factual allegations underlying this aspect of the owner’s claim as “supervision failure”.
Issue 1: did the architect owe the owner a duty of care in tort?
[60] The first issue is whether the architect owes the owner a duty of care in the tort of negligence. The Court of Appeal set out the universal test for determining this question in the seminal case of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”). The test is so well-established that I need not set out the elements in detail. I will, however, give an outline of the test to serve as the skeleton for the analysis which follows.
[61] The Spandeck test comprises a preliminary or threshold question coupled with a two-stage test. The preliminary question asks whether it was factually foreseeable that the plaintiff would suffer loss from the defendant’s actions. The two-stage test considers at the first stage whether there exists sufficient proximity between the parties. At the second stage, it considers whether policy considerations point against a duty of care arising: Spandeck at [75]–[83]. The Spandeck test is to be applied incrementally at each stage, by reference to existing case law on analogous situations.
The threshold question: factual foreseeability
[63] The architect rightly does not contest factual foreseeability. This is no doubt because the Court of Appeal in Spandeck at [75] adopted the views of Andrew Phang J (as he then was) in Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 1 SLR(R) 853 at [55] that the requirement of factual foreseeability will almost always be satisfied.
[64] In my view, this is the typical case in which the threshold requirement of factual foreseeability is easily satisfied. The real battle between the parties is on the two-stage test.
Stage 1: Proximity between the parties
The law
[65] The first stage of the Spandeck test asks whether there was sufficient proximity between the plaintiff and the defendant to give rise to a duty of care. Proximity may be established using various indicia, as identified by the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1 (“Sutherland Shire”) at 55-56, and adopted in Spandeck at [78]:
[66] Although the test for a duty of care in Spandeck is universal, the indicia of proximity to be considered in the first stage are not universal. As the passage from Sutherland Shire quoted in Spandeck recognises, the indicia of proximity will vary, depending on the alleged tortfeasor’s negligent act or omission and depending on the type of loss or injury sustained by the plaintiff. The owner’s claim against the architect in this action involves an allegation of professional negligence causing pure economic loss. The key indicia for that class of case or that type of loss are the twin elements of an assumption of responsibility by the tortfeasor and reliance by the plaintiff of which the tortfeasor knew or ought to have known. Indeed, all of the parties have been content to argue proximity based on precisely these twin elements.
The owner’s arguments
[67] The owner argues that the architect owes it a duty of care because there was both an assumption of responsibility and reliance.
[68] The architect assumed responsibility in respect of a drawings failure because he was the QP (Architectural) for the project and was thus responsible for obtaining the necessary approvals from the URA and the BCA. In particular, the owner refers to several applications which the architect made to the URA in each of which the architect declared that his proposal complied “with all … [conservation] guidelines and all conditions imposed by URA” [emphasis omitted]. The owner also notes that the architect conceded in cross-examination that even if he did not personally prepare the drawings which he submitted, he was responsible for ensuring that the drawings complied with the URA’s requirements before submission. Similarly, the architect assumed responsibility in respect of a supervision failure, because he essentially performed the role of project architect.
[69] As for reliance, the owner relied on the architect as regards both the drawings duty and the supervision duty. This was because the owner had no prior experience of owning or renovating a conservation property and therefore relied on the experience of the professionals – such as the architect – which it engaged for the project.
[70] The owner also notes that, although it is true that it did not have a contractual relationship with the architect, the architect was the only registered architect in the entire Nota group. He was thus the only person in either NGPL or NDAE who could have given the owner the professional assistance which NGPL had contracted to supply the owner. This, the owner says, is a relationship which is “equivalent to contract” and which gives rise to a duty of care. The plaintiff cites on this point the observations of Lord Devlin in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 529, which were adopted by the Court of Appeal in Animal Concerns Research & Education Society v Tan Boon Kwee [2011] 2 SLR 146 (“ACRES”) at [63].
The architect’s arguments
[71] The architect’s response is that the contractual arrangements which the owner agreed exclude any assumption of responsibility by the architect to the owner, and thus any duty of care. The architect notes that the owner chose to contract with NGPL and only with NGPL. It was NGPL who in turn contracted with NDAE. The architect is an employee of NDAE. He has no relationship whatsoever with NGPL or the owner. The contractual arrangements which the parties freely bargained for therefore placed at least two degrees of separation between the architect and the owner.
[72] Further, the architect points out that the owner entered into a contract with the contractor and therefore had the opportunity to secure protection for himself in that contract. If the owner thought his contract with the contractor was inadequate protection, he had the opportunity to insist on an additional tripartite contract with the architect. Indeed, the architect argues that Pacific Associates Inc v Baxter [1990] 1 QB 993 (“Pacific Associates”) and Spandeck indicate that where the owner has his rights protected under a bargained-for contractual framework, the courts should not superimpose a duty of care in tort which cuts across that framework.
[73] The architect also argues that it was not his responsibility – and was instead the responsibility of either NGPL, as the project manager, or of the contractor – to check and ensure that the drawings which the contractor used to carry out the works were consistent with the approved plans. In particular, the architect argues that Lee Boon Pin and Declan Reilly of NGPL were trained in architecture and were in charge of the plans and were responsible for reviewing the plans for consistency.
There is sufficient proximity between owner and architect
[74] I hold that there is sufficient proximity between the owner and the architect to satisfy the first stage of the Spandeck test. I agree with the owner that the architect assumed responsibility to the owner for design failure and supervision failure, notwithstanding the overarching contractual framework for the project. I also find that it was reasonable for the owner to rely on the architect, and that the owner did so rely.
(1) The law
[76] The Court of Appeal held (at [38]) that there was sufficient proximity between the architects and the management corporation for a duty of care to arise. The architects were aware that, in the normal course of events, the developers would apply to register a strata title plan for the condominium and that a management corporation would then come into existence. The architect assumed responsibility to the developer to be professionally competent, and the architect knew that the developer relied on the architect exercising reasonable care and skill. The management corporation was merely the successor in title of the developer with respect to the common property. The architect knew that the management corporation would depend on the architect’s care and skill in designing and supervising the construction of the common property. Further, the management corporation relied on the architect to get the design of the building right. There was therefore a sufficient degree of proximity in the relationship between the management corporation and the architect for the architect to owe a duty of care to the management corporation to avoid causing the loss sustained by the management corporation.
[77] I acknowledge that RSP Architects was decided well before Spandeck. But the adoption of the universal test in Spandeck does not mean the rejection of all case law before Spandeck, particularly case law which deals with the concept of proximity in the tort of negligence. Further, the Court of Appeal in Spandeck held that the universal test is to be applied incrementally: at [73]. This means that it is desirable at each stage of the test to refer to decided cases in analogous situations to see how the courts have reached their conclusions in terms of proximity or policy: at [73]. I am therefore entitled and indeed obliged to have regard to the decision of RSP Architects at the proximity stage of the Spandeck test.
[78] The case of RSP Architects is instructive for several reasons. First, RSP Architects shows that the focus of the court is not on the degrees of separation between architect and owner, but on the fact that the owner is known by the architect to be the entity who is ultimately to benefit from the architect’s professional skill. Thus, the fact that there are several degrees of separation between the architect and the owner in the present case is of no great consequence to the duty of care analysis because the architect here – like the architect in RSP Architects – must have known that his skills were being exercised for the ultimate benefit of the specific entity who is now suing him. Indeed, the relationship between the architect and the management corporation in RSP Architects can be said to be even more remote than the relationship between the architect and the owner in the present case. The owner in the present case existed from the outset. The management corporation in RSP Architects did not even exist as a legal person at the time the architects carried out the acts or omissions said to be negligent.
[79] The second reason RSP Architects is instructive is because it shows that the presence of a contract between the architect and one entity – in that case the developer and in the present case with NDAE – does not in itself prevent a duty of care from arising or otherwise exhaust the scope of the architect’s potential liability. This observation has been echoed in more recent case law. In ACRES, the Court of Appeal observed at [66] that the contractual arrangements of the parties, although an important consideration to be taken into account when deciding whether there is proximity, does not automatically exclude a duty of care. Instead, the true principle is “whether or not the parties structured their contracts intending thereby to exclude the imposition of a tortious duty of care”: ACRES at [71].
(2) Assumption of responsibility
[80] In this case, there is nothing in the contract between the owner and NGPL to suggest that those two parties intended, by entering into that contract, to exclude the architect’s potential personal liability to the owner in tort. Nor has the architect pointed to any evidence which suggests that, as between the architect and the owner, it contracted in that way so as to exclude the architect’s liability in tort. As for the contract between NGPL and NDAE, that was not even an express contract. There is virtually no scope for extending its legal consequences beyond those two parties.
[81] Conversely, the evidence that is before me does suggest that the architect stands in a sufficiently proximate relationship to the owner to give rise to a duty of care. As the owner points out, the architect is the only registered architect in the Nota group. Thus, whether one speaks of NGPL or NDAE as the entity which bore the immediate obligation to provide architectural services to the owner, the ultimate obligation fell upon the architect. He was the only person in either entity with the qualifications and skills necessary to supply the required architectural services.
[82] Similarly, the behaviour of the architect suggests that he assumed the responsibility of providing the architectural services. In the first place, the architect assumed the role of QP (Architectural) for the project. Although it is true that the Court of Appeal in ACRES recognised (at [21]–[23]) that the presence of a statutory duty does not automatically give rise to a common law duty of care, it acknowledged that the former can “form the backdrop to and inform the existence” of the latter.
[83] In the present case, the statutory duty does inform the existence of a common law duty of care. By taking on the role of QP (Architectural), the architect became the person with the primary responsibility for ensuring that the project complied with the Conservation Guidelines. He became the individual whom the URA would hold responsible for any deviations. And, because successful completion of the project depended on obtaining the URA’s approval for TOP, he became the person to whom the owner was looking to secure that successful completion.
[84] It is true that there are several degrees of separation between the owner and the architect. NGPL served as a contractual intermediary between the owner and NDAE. NDAE in turn served as an intermediary between NGPL and the architect. But I do not make too much of this. The architect in his evidence acknowledged that whenever NGPL takes on a project that requires architectural services, it is NDAE who would provide those services. In particular, when NGPL requires the services of a registered architect, the architect acknowledged that he is the only person who can provide those services. Indeed, there is also evidence that the staff of NGPL with an architectural background – but who were not themselves at that time registered architects – were accustomed to act under the direction of the architect. This occurred so much so that the URA believed that the staff of NGPL acted for the architect.
[85] In these circumstances, it is possible to find – and I do find – that the architect assumed responsibility to the owner to provide his architectural services with reasonable care and skill.
[86] In any event, I would add that there is another distinguishing feature between Spandeck and Pacific Associates and the present case. In both of those cases, a plaintiff who stood in a direct contractual relationship with an owner was arguing that other parties who were also in a contractual relationship with the owner owed – in addition to their contractual duties to the owner – a parallel duty of care to the plaintiff. The present case is different. Here, it is the owner who is arguing that a professional providing services to the owner’s project manager owes a duty of care to the owner personally.
[87] This is a material distinction. The person for whose benefit the services are provided, and to whom a duty of care might be said to arise, differs dramatically between these two categories of cases. In the first category, the third parties perform their services for the benefit of the owner, not for the benefit of the plaintiff asserting the duty of care. In the second category – which includes the present case and RSP Architects – the third party performs his services for the ultimate benefit of the owner. The duty of care in the present category of case follows the grain of the parties’ arrangements rather than going against it. Thus proximity is more easily found.
[88] I would also add that Lee Boon Pin and Declan Reilly of NGPL were only trainee architects, and thus could not be in a position to have provided the architectural services which the owner contracted with NGPL for in this case. Moreover, the evidence is that the architect had professional responsibility for supervising the work of Lee Boon Pin, who was then a trainee architect. So that is another reason for saying that the architectural services which NGPL provided to the owner ultimately originated from the architect, not from NGPL.
[89] I note that the architect has submitted that he did not supervise Lee Boon Pin for this particular project and that, in any event, Lee Boon Pin was not working as an architect or carrying out or performing architectural functions for this project. But if this is true, that serves all the more to locate the architect as the ultimate source of the architectural services in this case, including the role of ensuring consistency between the various plans and supervising the works.
(3) The drawings duty
[90] The question that follows from the above is whether assuming the responsibility of providing the architectural services necessarily encompasses the drawings duty and the supervision duty. In my judgment, it does.
[91] So far as the drawings duty is concerned, the crux of the owner’s case is that there is a duty on the part of an architect to ensure that the various drawings prepared by the architect and the engineer in any given project are consistent with the drawings approved by the authorities. Parties were unable to cite any legislation spelling out such a duty. The evidence of both the architect’s expert and the engineer’s expert, however, is that this is the norm and the expectation in the construction industry.
[92] Although industry norms or expectations in themselves do not make law, I find that the drawings duty was within the scope of the architectural services which the architect assumed the responsibility of providing to the owner. This industry norm has arisen for a good reason. The architect is the QP overseeing the entire project. In a project involving a conservation building, he reports to both the key authorities: the URA and the BCA. He is best placed in terms of the skill and expertise of his profession to prepare, receive, and assess the various drawings, and ultimately to ensure that they are consistent with each other. Further, in a project involving Category 1 Works to a conservation building, a registered architect is the only person permitted to apply to the URA for written permission under the Planning Act. That is understandable as a registered architect is clearly better placed compared to an engineer to fulfil the objectives of the Conservation Guidelines by ensuring that the aesthetic features crucial for a conservation property are preserved.
(4) The supervision duty
[93] As for the supervision duty, both the owner and the architect have heavily contested whether the duty is one of supervision, or of inspection; and further, if it is the former, whether it is a duty of continuous supervision, or of standing supervision. In my view, the architect does owe the supervision duty claimed by the owner.
[94] The architect relies on extracts from a leading textbook, John Powell et al, Jackson & Powell on Professional Liability (Sweet & Maxwell, 8th ed, 2017) (“Jackson & Powell”) and the Singapore Institute of Architect’s Conditions of Appointment and Mode of Payment (2002 Edition) (“SIA Conditions of Appointment”). Both these extracts are cited for the proposition that the architect typically bears only a duty of inspection, and not a duty of supervision. Further, Jackson & Powell expresses the view that the distinction between “supervision” and “inspection” is an important one: supervision entails detailed and continuous direction, whereas inspections are expected to be limited in number, duration and frequency. Similarly, the SIA Conditions of Appointment indicate that constant or daily inspection is not part of the architect’s basic services, and the architect is required to inspect the works only at periodic intervals as the architect deems necessary.
[95] I do not accept that the architect owed only a duty of inspection. The architect’s reliance on Jackson & Powell is misplaced. That extract addresses changes made to the architect’s contractual duties across various editions of Royal Institute of British Architects’ Conditions of Engagement for the Appointment of an Architect. That standard form has no application here. Similarly, as the owner has rightly pointed out, the architect was not appointed under the SIA Conditions of Appointment in the present case. Reliance on the contractual duties set out in that standard form contract too is misplaced.
[96] I instead accept the owner’s argument that the architect’s duty of care encompassed a duty of supervision. The owner has drawn my attention to the Court of Appeal’s decision in Sim & Associates v Tan Alfred [1994] 1 SLR(R) 146 (“Sim & Associates”). In that decision, the Court of Appeal considered it to be settled law that an architect in a building contract has a duty to supervise the building works to ensure that they are being carried out in conformity with the contractual specifications; and that in the absence of specific provision in the contract, such a duty will be implied in law: at [39]. Further, that case was also a case where the owner did not have a contract with the architect – the building contract the Court of Appeal referred to was the building contract between the owner and the contractor. The Court of Appeal’s decision therefore applies equally here.
[97] I do add, however, that in my view the supervision duty does not go so far as to oblige an architect to prevent all deviations before they occur. This is because I accept that the architect, in carrying out the supervision duty, does not have to be continuously present on site. An architect who complies with the supervision duty may nevertheless fail to prevent a deviation that occurs between the visits made to discharge the duty. That said, the supervision duty does entail in practical terms a duty to detect a gross deviation – in this case, either a fresh construction of a deviating new feature or a deviating reconstruction of a demolished feature – and to act promptly to get the deviation rectified in a timely manner so as not to jeopardise the completion date of the project.
(5) Reliance
[98] Turning now to the issue of reliance, I also find that the owner did rely on the architect and did so reasonably. The owner had no expertise in dealing with construction projects, and in particular, construction projects involving conservation buildings such as the shophouse here. It was entirely reasonable for it to rely on the expertise that the architect had, and held himself out as having. Indeed, the architect himself recognises as much:
The requirement of reliance is therefore satisfied.
(6) Conclusion
[99] I conclude my analysis on proximity by observing that the requirement of proximity is satisfied because of the parallels between this case and the decision in RSP Architects. The relevant indicia of voluntary assumption of responsibility and reliance are both present on our facts. I therefore consider that it is unnecessary to go further into a consideration of other indicia of proximity.
Stage 2: Policy considerations
[100] The next stage of the universal test asks whether there are policy considerations that might militate against the finding of a duty of care: Spandeck at [83]. This stage is negative in nature and focuses on whether policy considerations negate or limit the duty that is found prima facie to exist at the proximity stage. However, it is legitimate at the policy stage to have regard to positive policy considerations which undermine any negative policy considerations raised by the defendant: ACRES at [77].
[101] The owner contends that there are no policy considerations which would operate to negate the duty of care which I have found prima facie to have arisen at the proximity stage. On the contrary, the owner says that there are positive policy considerations which point in favour of a duty. In this regard, the owner cites the various responsibilities placed on the architect by the Planning Act and the Building Control Act.
[102] The architect's response is that a duty of care should not be superimposed on a contractual duty, especially in this case where the owner is already protected by a contractual framework comprising two contracts: one with the contractor and another with NGPL.
[103] I hold that there are no policy considerations which militate against a duty of care. While it is true that contractual arrangements can serve as a policy consideration at the policy stage of the Spandeck test, these arrangements can also be considered as an indicium at the proximity stage: ACRES at [66]. The Court of Appeal recognised that contractual arrangements could be relevant to both stages, and that it may in certain cases be appropriate to analyse the effect of these arrangements at the proximity stage: ACRES at [66]. This is such a case.
[104] The architect’s argument is essentially that the owner’s contractual arrangements set out a complete framework for liability of all of the professionals involved in the owner’s project, and thus there is no scope for the architect to be found to have assumed responsibility to the owner, nor for the owner reasonably to have relied on the architect. This is an argument that is best dealt with at the proximity stage. I have already done so above and concluded that there was nevertheless sufficient proximity between the architect and the owner for there to arise a duty of care owed by the former to the latter. I therefore do not need to revisit this point.
Conclusion
[105] For the above reasons, I find that the architect did owe a duty of care in tort to the owner.
Issue 2: Did the engineer owe a duty of care in tort?
[106] The owner also argues that the engineer owed it a duty of care. I analyse whether the engineer does owe this duty of care by adopting the framework I have already set out above in respect of the architect.
Threshold question of factual foreseeability
[107] On the threshold issue of factual foreseeability, the owner points out that the engineer was appointed as QP (Structural) and argues that it was factually foreseeable that if the engineer failed to ensure consistency in the drawings and failed to supervise, the owner would suffer loss.
[108] Like the architect, and no doubt for the same reason, the engineer does not contest factual foreseeability. Instead, his submissions jump straight to the issue of proximity.
[109] I therefore hold that factual foreseeability is established against the engineer.
Stage 1: Proximity
[110] As with its arguments on proximity as against the architect, the owner’s arguments on proximity as against the engineer hinge on the indicia of assumption of responsibility and reasonable reliance. Again, for the same reason, I consider those to be the necessary and sufficient indicia for a claim of this nature.
[111] The owner argues that the engineer assumed responsibility because he was the civil and structural engineer and the QP (Structural) for the project. In that capacity he was obliged by the applicable legislation to submit structural plans to the BCA for approval and to supervise the structural works.
[112] The engineer contends that he owed no duty of care to the owner. He does not specifically contest any particular indicia of proximity set out in Spandeck. Instead, he raises certain discrete arguments broadly relating to (a) his endorsement on the WP drawings; (b) the duties he owes as against duties that the architect owes; and (c) the scope of his contractual obligations. This is not the most helpful way to address proximity, but I shall deal with each of these three broad areas below.
[113] I hold that the engineer did stand in a relationship of proximity with the owner such that a duty of care in tort arose. The principle to be drawn from RSP Architects is that a professional in the construction industry owes a duty of care to a person known to be the ultimate beneficiary of his professional skill and expertise. That principle applies in this case. The engineer knew that his professional skill and expertise was being applied for the ultimate benefit of the owner even though his contract was with NDAE.
[114] The parties have, however, devoted lengthy submissions addressing me on proximity. I now go through them in detail to show how they do not disturb the applicability of the general principle I have just identified. There are three broad areas of contention between the parties.
[115] The first broad area of contention I address concerns the statutory duties of the engineer, as compared to the architect. Both the owner and the engineer make much of these duties.
[116] The owner relies on the engineer’s statutory obligations to argue that the engineer assumed responsibility towards the owner, citing the engineer’s responsibility to apply to the BCA for approval of the structural plans and for the permit to carry out building works. The owner also cites the engineer’s assumption of duties as QP (Structural).
[117] In response, the engineer distinguishes between the various duties which are imposed by statute upon him as opposed to those which are imposed upon the architect. He points to the fact that the architect was the QP for the URA and that the architect was also the QP for the BCA so far as the building plans were concerned. The engineer’s own role was only as QP for the structural plans submitted to the BCA. The engineer does not submit specifically that this argument is directed towards contesting assumption of responsibility as an indicia of proximity. But I infer from his lengthy submission that it is his case either that: (a) that he owes statutory duties alone, and therefore cannot owe a duty of care at common law; or (b) that the operation of the statutory framework excludes the possibility of a duty of care arising in tort.
[118] I agree with the owner that the engineer assumed responsibility to the owner for design and supervision. It bears repeating that a duty of care in tort at common law does not arise automatically out of a statutory duty on the engineer under either Act: ACRES at [22]. The statutory duty may, however, form part of the contextual backdrop or be a relevant factor pointing for or against a duty of care: ACRES at [22]. Here, I find that it is a factor pointing for a duty of care. I agree that the foremost purpose of the statutory duty of a QP (Structural) is to ensure the structural safety and integrity of the building works. But to achieve this purpose, the engineer needs to ensure that his drawings are consistent with those of the other professionals involved in the project – in this case, the architect – and also to ensure that any deviations from the drawings are identified and rectified in a timely manner.
[119] With regard to the drawings, the engineer himself acknowledges in his closing submissions that he owed a duty to incorporate the design intent of the architect in his structural drawings. Indeed, he recognises that the design in the written permission drawings – which are drawn up by the architect – is the dominant design, and that he should generally adopt the architect’s design in the written permission drawings.
[120] Similarly, both the engineer’s expert and the architect’s expert confirmed that this is industry practice. I reiterate that industry practice or norms are not by themselves determinative of an assumption of responsibility or a duty of care. But I do consider that this industry practice is a powerful factor in favour of a finding that the engineer owes a common law duty to ensure consistency between his drawings and the architect’s drawings.
[121] To my mind, this is a practice that supports and reinforces, and does not detract from, the purpose of the statutory duty of ensuring structural safety and integrity. It is conducive towards the structural safety and integrity of construction projects that the building professionals working on them coordinate their drawings to ensure that the contractors and builders who ultimately have to construct the building are not misled or confused by inconsistent plans and drawings. The engineer, as one of the professionals responsible for preparing one of these plans, has a key role to play in this endeavour. While it might be said that the engineer should not be liable for failing to ensure that his plans are consistent with the written permission drawings so long as no structural safety concerns are raised, I do not think that the engineer’s duty should be made dependent on something so fortuitous or arbitrary. No structural safety concerns may arise simply because the contractor, faced with inconsistent architectural drawings and structural drawings, opts for the latter. But he could well have chosen the former. The point is that the engineer has introduced a risk of there being a structural safety issue, and it cannot be that it is simply left to the contractor, whether consciously or fortuitously, to mitigate this risk. Nor can it be that the engineer should simply depend on the architect to check and discover the error, although the architect is also subject to this duty. I therefore find that the engineer did assume the drawings duty.
[122] Similarly, in respect of the supervision duty, the engineer declared to the BCA that he was the appointed site supervisor under s 10 of the Building Control Act and that he would be supervising the structural works. The engineer argues that this declaration did not require him to exercise standing supervision over the works, citing the Second Reading of the Building Control Bill on 16 February 1989. In that reading, the former Minister for National Development Mr S Dhanabalan said that “for minor building works it is not necessary to have a full-time supervisor for all the works”. The engineer submits that the value of the works in this case categorises them as minor building works. He also notes that in the declaration, he undertook to exercise only “immediate supervision of critical structural works as required in Section 7(1)(c) of the Building Control Act” and not the alternative of exercising “[f]ull-time supervision of structural works as required in Section 7(1)(b) of the Building Control Act”. He says that because demolition works are not critical structural works, he was not required to supervise them.
[123] I do not think these arguments are of much assistance to the engineer. The crux of the owner’s complaint on the supervision duty is not to do with a failure to supervise the demolition process or the reconstruction process, ie as a failure to prevent the deviations from being carried out. The crux of the complaint is that the engineer had a duty in carrying out his site inspections to detect deviations of the magnitude which occurred here. However one characterises the duty of the engineer – whether as a duty to supervise or to inspect – I am of the view that the engineer did indeed have a duty to detect gross deviations such as those which occurred here. This duty would be meaningless if gross deviations as the non-compliant demolition or reconstruction of an entire slab fell outside its scope.
[124] To round things off, I would also add that the owner is clearly within the class of individuals which the statutory duty was designed to protect. The engineer is engaged to provide his professional services for the project because the owner, not being a construction professional, and in particular, not being a structural engineer, requires professional assistance. The engineer takes it upon himself to provide that assistance by assuming the statutory duties of QP (Structural). That to my mind is another factor pointing towards the engineer bearing a duty of care in tort to the owner, unless there are countervailing factors that militate against this.
[125] I would also add, for the sake of completeness, that my view that the engineer has assumed the drawings duty and supervision duty is fortified by the fact that the engineer is not correct in saying that his statutory duties encompass only ensuring the structural safety and integrity of the project. The URA representative, Lee Yan Chang, testified in cross-examination that the reasons the URA rejected the deviations in this project were not “related to aesthetic nor structural integrity” but were instead “related to the conservation principle of maximum retention”. This principle is reflected in the URA Conservation Guidelines:
[126] The preface to those guidelines further expressly states that “[owners], architects and engineers intending to carry out restoration works or development within conservation areas are required to comply with the guidelines accordingly” [emphasis added]. The engineer himself recognised this, as evidenced by his endorsement on the architectural drawings:
[127] The upshot of this is that the engineer’s duties, even as a structural engineer, were not confined to ensuring structural safety and integrity in the project. He also undertook that the structural alterations complied with the URA’s conservation principles. In my view, discharging these duties required ensuring that his drawings were consistent with the written permission drawings. It is the written permission drawings which were approved by the URA, the competent authority under the Planning Act, and the issuer of the Conservation Guidelines. Moreover, an engineer should detect deviations which have taken place so that they can be rectified in a timely fashion. This therefore reinforces my views set out above that the engineer did assume responsibility in respect of the drawings duty and the supervision duty to the owner.
[128] I now turn to address the engineer’s specific submissions to show why each is not a bar to his having assumed responsibility to the owner. It is first necessary to distinguish between the material which the engineer cites, which in essence is nothing more than mere statements of fact, and those on which he hints at a legal argument. The engineer makes several statements of fact. The engineer points out that it was the architect, and not the engineer, who was the QP for the written permission drawings submitted to the URA, and also the QP for the building plans submitted to BCA. His submission is that he therefore cannot be the QP for those drawings. There is nothing wrong with making mere statements of fact, but if the engineer means by this that he cannot have assumed responsibility for his own drawings, then that is a non sequitur. Another point which the engineer raises is that he cannot owe any duties of compliance with the URA’s Conservation Guidelines because he is not the QP making submissions to the URA. But the owner is not pursuing this point against the engineer, so it is not necessary to consider this argument any further.
[129] Turning now to material on which the engineer appears to make a legal argument, the engineer points to the architect’s declarations to the URA and the BCA. He says that the upshot of these declarations is that it is the architect who assumed responsibility for reviewing the design in the structural drawings to ensure consistency with the written permission drawings. But even if the engineer is right on this, that does not automatically exclude a separate and parallel assumption of responsibility by the engineer to ensure that his own drawings – for which he undoubtedly assumed responsibility – are consistent with the architect’s written permission drawings. This argument simply means that the architect has his own duty to review drawings.
[130] The engineer next turns to his own duties. He acknowledges that he is the QP responsible for submitting structural drawings to the BCA and points out that the BCA approved these drawings. He says that the only conditions which the BCA imposed on the approval granted had to do with the safety and structural integrity of the building. Thus, he says, his duties are confined to ensuring that the works are structurally safe.
[131] This must be correct so far as his statutory duties are concerned. But, as I have already observed above, the engineer also concedes that he has a duty to incorporate the architect’s design intent into his structural drawings. I have found above that this duty, as supported by the industry practice, does include the drawings duty.
[132] The engineer makes a further point on this. He argues that the duty to incorporate the architect’s design intent is not immutable and rigid, because it is possible to apply to the URA for approval of an amended design or waiver of deviation from the approved design. But to my mind, this goes to a later element of the negligence analysis, ie breach of duty. The fact that the structural drawings are inconsistent with the written permission drawings is a prima facie breach which is capable of then being cured by the approval of amended structural drawings which are consistent with the written permission drawings, just as a deviation from the approved design may be a prima facie breach that is treated as cured if waived by the URA. This point does not really assist the engineer at this stage of the analysis in tort, where the focus is on the existence of a duty of care.
[133] The next broad area of contentions as far as the indicium of assumption of responsibility is concerned is that the engineer did not himself endorse the drawings that were actually submitted for approval to the URA and which were ultimately approved, ie, the written permission drawings. It flows from this that he also did not endorse the declarations made on the face of those drawings, for example, the declaration that the alterations to the structure comprised in the drawings are in accordance with the conservation principles (see [126] above).
[134] To make this point, the engineer draws a distinction between a statement on the face of a drawing that a particular professional has endorsed a drawing and the process whereby a particular professional applies his personal digital encryption to a drawing at the time the drawing is electronically submitted to the relevant authority. It is only the latter, he says, which represents the professional’s assumption of responsibility for a specific drawing.
[135] Here, the engineer applied his personal digital encryption to only one set of architectural drawings, those submitted on 21 January 2011. However, the architect continued to submit drawings on his own up until 22 February 2011, and it is on this last set of drawings that the WP drawings were based. By that time, the design had changed from that comprised in the 21 January 2011 drawings. The engineer did not apply his personal digital encryption to any of the later drawings, and thus argues that he cannot be said to have assumed responsibility for them.
[136] The engineer further asserts that he applied his personal digital encryption on 21 January 2011 on the understanding and assurance from the architectural team at NGPL that these were merely preliminary architectural and structural drawings and that the drawings would be further amended and that he would be allowed to respond to those amendments and to update his structural drawings.
[137] I should note for the sake of completeness that the engineer does not expressly submit that these arguments are directed towards contesting assumption of responsibility. But it is obvious to me that it is this indicium of proximity which the engineer is attacking by pointing out that he did not personally encrypt the written permission drawings.
[138] I find, however, that nothing material turns on the absence of encryption. I asked counsel for the engineer specifically what material differences there are between the drawings which the engineer did personally encrypt and the drawings which the architect later submitted to the URA and which eventually became the written permission drawings. Counsel confirmed that there essentially “were no real, material differences”. I also asked counsel for the engineer whether the engineer knew that the drawings which the engineer did encrypt for submission to the BCA were also to be submitted to the URA. Counsel confirmed that this was the case.

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Wei Siang Design Construction Pte Ltd v Euro Asset s Holding (S) Pte Ltd

Grounds of decision

Introduction

The factual background

The shophouse

The parties

The relationship between the parties

The drawings and colour coding convention

The deviations

The legal background

The Building Control Act

The Planning Act and the Conservation Guidelines

Interaction between the Building Control Act and the Planning Act

The delays in obtaining URA’s approval and in obtaining TOP

This action

Procedural history

The parties’ cases on the counterclaim

Issues to be determined on the counterclaim

(a) Did the architect owe a duty of care to the owner?

(b) Did the engineer owe a duty of care to the owner?

Preliminary issue: what were the exact duties owed?

Issue 1: did the architect owe the owner a duty of care in tort?

The threshold question: factual foreseeability

Stage 1: Proximity between the parties

The law

The owner’s arguments

The architect’s arguments

There is sufficient proximity between owner and architect

(1) The law

(2) Assumption of responsibility

(3) The drawings duty

(4) The supervision duty

(5) Reliance

(6) Conclusion

Stage 2: Policy considerations

Conclusion

Issue 2: Did the engineer owe a duty of care in tort?

Threshold question of factual foreseeability

Stage 1: Proximity