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Grounds publishedDecided 24 Apr 2013
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Court of Appeal

See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others

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[2013] SGCA 29Case no. Civil Appeal No 54 of 2012

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  1. V K Rajah JA:

  2. Introduction

  3. [1] This is an appeal against the decision of the High Court judge (“the Judge”) in Suit No 474 of 2010 (see See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd and others [2012] 3 SLR 227 (“the Judgment”)). The suit was instituted by the plaintiff, See Toh Siew Kee (“See Toh”), against three defendants – Ho Ah Lam Ferrocement (Private) Limited (“HAL”), Lal Offshore Marine Pte Ltd (“Lal Offshore”) and Asian Lift Pte Ltd (“Asian Lift”). See Toh claimed damages against HAL and Lal Offshore under the law on occupiers’ liability and against all three defendants (collectively, “the Defendants”) under the tort of negligence for injuries caused to him while he was at a shipyard at 9/11 Tuas Basin Close (“9/11 TBC”) which was leased by HAL from Jurong Town Corporation (“JTC”). The Judge dismissed See Toh’s claims against all the Defendants. See Toh has appealed to this court against that decision.

  4. [2] For ease of reference and to facilitate understanding, I now set out the schematic arrangement of this judgment:

  5. The parties to the dispute

  6. [3] See Toh was at the material time a service engineer with Norsk Marine Electronic, and was engaged by TCH Marine Pte Ltd (“TCH Marine”) as an independent contractor to service the radar on board its tugboat Fortune II. Prior to the accident, See Toh had been attending to vessels for about 26 years to repair and maintain radar equipment. Fortune II was at the material time used by TCH Marine to tow the barge Namthong 27, also owned by TCH Marine, from 9/11 TBC. Namthong 27 was at 9/11 TBC to collect wood chips to be delivered to TCH Marine’s customer, Biofuel Industries Pte Ltd.

  7. [4] HAL is in the business of building and repairing ships and other ocean-going vehicles. As mentioned above, 9/11 TBC was at the material time leased by HAL from JTC. HAL sublet 9/11 TBC to Lal Offshore pursuant to a Cooperation Agreement dated 14 April 2007. A small portion of 9/11 TBC, including the entire shoreline of 9/11 TBC, was reserved by HAL for it to carry out the work of repairing boats and engines, and to load machinery and wood chips onto barges for export. Lal Offshore later used part of 9/11 TBC to fabricate a set of living quarters for Keppel FELS Ltd (“KFELS”), which was to be delivered to an offshore oil rig.

  8. [5] Asian Lift was, in turn, engaged by KFELS to take delivery of the aforesaid living quarters (“the KFELS living quarters”) at 9/11 TBC and bring it to the offshore oil rig. Asian Lift intended to use a crane barge, Asian Hercules, for this purpose.

  9. The undisputed facts

  10. [6] On the day of the accident, Asian Hercules arrived at 9/11 TBC. After arriving at the shoreline of 9/11 TBC, the crew of Asian Hercules intended to affix two metal mooring wires from Asian Hercules to bollards on the shore of 9/11 TBC. While this was being done, the starboard mooring wire of Asian Hercules became stuck (in shipping parlance, “fouled”) at the ramp of Namthong 27.

  11. [7] Despite knowing of this mishap and of the danger which might be posed to those present in the vicinity if the mooring of Asian Hercules (“the Mooring Operation”) were continued despite her starboard mooring wire being fouled, the captain of Asian Hercules (“Captain Hamid”) continued the Mooring Operation. As a precautionary measure, he sent seven to eight crew members to shore to clear the area and to secure Asian Hercules’s mooring wires to the bollards on shore. The area where Asian Hercules was to be moored and where the lifting of the KFELS living quarters was to take place shall, for convenience, be referred to in this judgment as “the Operations Site”.

  12. [8] Prior to the accident, See Toh received a call from a director of TCH Marine, Andrew Tay Nguang Yeow (“Andrew Tay”), asking him to service the radar of Fortune II. See Toh believed that Fortune II was docked at 15 Tuas Basin Close (“15 TBC”) because he had previously attended to Fortune II there.

  13. [9] 15 TBC was occupied by Catermas Engineering Pte Ltd (“Catermas”) at the material time. When See Toh went to the main office of Catermas, he was informed by its manager, Tan Puay Choon, that Fortune II was berthed not at 15 TBC, but at the adjacent 9/11 TBC.

  14. [10] See Toh left 15 TBC through 15 TBC’s main gate and entered a second gate of 15 TBC (“the second gate”). After entering the second gate, See Toh walked to the shore. A fence separated 15 TBC from 9/11 TBC; there was an open space of about 5m between the end of the fence and the shoreline (“the Seafront Access Point”). See Toh then called Andrew Tay to verify Fortune II’s location. Andrew Tay told See Toh that Fortune II was in that area, but did not inform See Toh of the exact location of Fortune II. Andrew Tay also told See Toh that his supplier had gone to Fortune II earlier that day and had encountered no difficulty in locating the vessel.

  15. [11] See Toh entered 9/11 TBC through the Seafront Access Point. The parties gave differing versions of what happened after See Toh crossed into 9/11 TBC. Nonetheless, it is undisputed that See Toh was hit by Asian Hercules’s fouled starboard mooring wire as he was walking towards Namthong 27’s ramp while proceeding to Fortune II. A loud bang was also heard around the same time.

  16. The decision below

  17. [12] The Judge was of the opinion that the preponderance of English judicial and academic views pointed to the conclusion that the law on occupiers’ liability formed part of the law of negligence. He therefore held that an occupier did not owe concurrent duties under the law on occupiers’ liability and the law of negligence (see [109] of the Judgment).

  18. [13] In relation to HAL and Lal Offshore, the Judge found both to be occupiers of the Operations Site at the material time. He also found that See Toh had knowingly trespassed onto 9/11 TBC by entering through the Seafront Access Point and not 9 /11 TBC’s main gate. Relying on Clerk & Lindsell on Torts (Sweet & Maxwell, 15th Ed, 1982), the Judge stated that an occupier would not owe a duty of care to an adult trespasser who trespassed knowingly and without any reasonable excuse (see the Judgment at [103]). As such, neither HAL nor Lal Offshore owed a duty of care to See Toh (see the Judgment at [138]). The Judge further held that even if HAL and Lal Offshore owed a duty of care to See Toh qua occupiers of the Operations Site, they would not have breached this duty (see the Judgment at [143]–[144] and [149]–[156]).

  19. [14] With regard to Asian Lift, whom See Toh did not allege to be an occupier (see [125] of the Judgment), the Judge was of the view that Asian Lift’s status as a non-occupier was irrelevant: occupiers and non-occupiers owed the same duty of care to trespassers (see [134] of the Judgment). Accordingly, for the same reasons as those applicable to HAL and Lal Offshore, the Judge found that Asian Lift did not owe a duty of care to See Toh (see [157] of the Judgment).

  20. [15] The Judge added, however (also at [157] of the Judgment), that had Asian Lift owed a duty of care to See Toh, Asian Lift would have breached this duty by proceeding with the Mooring Operation despite Asian Hercules’s starboard mooring wire having been fouled on the ramp of Namthong 27. The Judge was of the opinion that if Asian Lift were liable to See Toh, the latter would have been 65% contributorily negligent in not paying attention to his surroundings after trespassing onto 9/11 TBC (see the Judgment at [92]–[94] and [172]–[173]).

  21. [16] At the trial, Asian Lift also raised a time bar defence under s 8(1) of the Maritime Conventions Act 1911 (2004 Rev Ed). This defence failed as Asian Lift failed to establish that See Toh was on board a ship when he was injured (see the Judgment at [58]). It is unnecessary for this court to consider this issue as Asian Lift has not appealed against this finding by the Judge.

  22. The issues before this court

  23. [17] This case raises the important question of whether the legal principles applicable in Singapore in respect of occupiers’ liability should be subsumed under the general law of negligence. It also raises the question of whether and in what situations an occupier (or non-occupier) owes a duty of care to a trespasser.

  24. [18] There are two main issues before this court:

  25. (a) First, should the law in Singapore on occupiers’ liability be subsumed under the general law of negligence? If so, what should the applicable test(s) be for determining whether a duty of care should be imposed on an occupier, and what is the relevant standard of care?

  26. (b) Second, did the Defendants owe See Toh a duty of care? If so, did they breach their duty?

  27. [19] Each of these issues (referred to hereafter as “Issue 1” and “Issue 2” respectively) will be considered in turn.

  28. My decision

  29. Issue 1: Should the law in Singapore on occupiers’ liability be subsumed under the general law of negligence?

  30. The genesis of the common law position

  31. [20] The law on occupiers’ liability which currently applies in Singapore is based on the traditional common law rules applicable in England prior to the enactment of the Occupiers’ Liability Act 1957 (c 31) (UK) (“the 1957 English Act”). Under these traditional common law rules (referred to hereinafter as “the traditional common law rules”), there are two sets of rules which ordinarily might apply whenever a person is injured on property. The first set comprises the rules governing occupiers’ liability, which apply to an occupier qua occupier simpliciter – in other words, rules pertaining to the static condition of property. The second set comprises rules based on the general principles of the law of negligence, which do not apply to an occupier qua occupier as such – in other words, rules pertaining to dynamic activities done on property (see, eg, Dunster v Abbott [1954] 1 WLR 58 at 62; Riden v A C Billings & Sons Ltd [1957] 1 QB 46 at 56). It is the former category which is properly termed occupiers’ liability.

  32. (1) A brief interlude on the “neighbour” principle

  33. [21] This arbitrary division between the static condition of property (“the static”) and dynamic activities done on property (“the dynamic”) is not founded on logic or principle; rather, it is rooted in convoluted English legal history. The traditional common law rules on occupiers’ liability pre-date the historical decision of the House of Lords in M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (more commonly cited as “Donoghue v Stevenson” and hereinafter referred to as “Donoghue”). Donoghue is today acclaimed as the herald of an enormous sea change in tort law (although the case was not generally recognised as such initially: see [36]–[38] below). Prior to Donoghue, it would have been a misnomer to speak of the general principles of the law of negligence as the courts were then “concerned with the particular relations which c[a]me before them in actual litigation” (see Donoghue at 579) and had “engaged upon an elaborate classification of duties” (ibid). It bears mention that Indermaur v Dames (1866) LR 1 CP 274 (“Indermaur”), long regarded as the leading case on occupiers’ liability, pre-dated Donoghue by more than 60 years purely by a historical accident. Indermaur was thereafter unquestioningly applied, perhaps because of the highly venerated status of Willes J, who authored that judgment. Lord Atkin’s celebrated judgment in Donoghue erased the rigid distinctions between hitherto unconnected categories of tort and inductively rationalised the disparate categories as mere instances of the now famous “neighbour” principle (see Donoghue at 580):

  34. [22] The notion of not doing to others what you do not want them to do to you is merely the flip-side of loving thy neighbour as thyself (referred to hereinafter as “the Golden Rule”). Some academics have claimed that Lord Atkin’s “neighbour” principle is Biblically inspired (see, eg, Richard Castle, “Lord Atkin and the Neighbour Test: Origins of the Principles of Negligence in Donoghue v Stevenson” (2003) 7 Ecclesiastical Law Journal 210). However, I would like to point out that the Golden Rule is not peculiar to any one belief system or culture. As Harry J Gensler has opined in Ethics and the Golden Rule (Routledge, 2013) at p vii, the Golden Rule “is a global standard – endorsed by nearly every religion and culture … for many centuries”. Pertinently, Confucius, when asked whether there was a teaching which could serve as the guiding principle for conduct, replied: “What you do not want others to do to you, do not do to others” (see Analects 15.24 in The Analects of Confucius (Burton Watson trans) (Columbia University Press, 2007) at p 109). It is thus evident that Lord Atkin’s “neighbour” principle also emphatically reflects the mores of Asian societies (such as Singapore). Pertinently, distinguished jurists have persuasively shown that the “neighbour” principle is a universal communitarian value (see, eg, Richard W Wright, “The Principles of Justice” (2000) 75 Notre Dame Law Review 1859 at n 39). Indeed, John Finnis (“Finnis”) has unabashedly declared that “love of neighbour as oneself” is the master principle of morality from which all other moral principles can be inferred or deduced (see John Finnis, Aquinas: Moral, Political and Legal Theory (Oxford University Press, 1998) at pp 127–128 and 138–139).

  35. [23] Although Finnis may have overstated his case somewhat, the Golden Rule is unarguably a core principle in all deontological systems of ethics. The Categorical Imperative is the central plank of Kantian (deontological) ethics, and proceeds thus: “act only in accordance with that maxim through which you can at the same time will that it become a universal law” [emphasis in original omitted] (see para 4.421 of Immanuel Kant’s “Groundwork of the Metaphysics of Morals” in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy (Mary J Gregor ed & trans) (Cambridge University Press, 1999) (“Practical Philosophy”) at p 73). The similarities between the Categorical Imperative and the Golden Rule are immediately self-evident. Kant himself states that “quod tibi non vis fieri” (Latin for not doing to others what you do not want others to do to you) is a deduction from the Categorical Imperative (see footnote* to para 4:430 of Immanuel Kant’s “Groundwork of the Metaphysics of Morals” in Practical Philosophy at p 80).

  36. [24] Regardless of one’s persuasions, it is therefore undeniable that the Golden Rule is of cardinal import as both a moral and a legal principle.

  37. [25] Lord Atkin, in propounding the “neighbour” principle, was therefore, in actuality, making a statement of universal application that was intended to be the cornerstone of the law of negligence. Interestingly, in a speech made extra-curially six weeks before arguments were heard in Donoghue, Lord Atkin observed (see G Lewis, Lord Atkin (Butterworths, 1983) at pp 57–58):

  38. (2) The undue formalism of the traditional common law rules on occupiers’ liability

  39. [26] At the time Donoghue was decided, the law concerning occupiers’ liability was in disarray: there was no overarching general principle, and the content of the duty owed by an occupier to a person who entered his property (an “entrant”) – who could be an invitee, a licensee or a trespasser – was determined solely by reference to formalistic legal categories of relationship. The invitee-licensee-trespasser trichotomy indubitably created a complex, confusing and unpredictable legal landscape.

  40. [27] A major reason for this unhappy legal landscape was because of the marked difference in the content of the duty owed by an occupier to entrants in each of the above three categories. Invitees were owed the highest duty and were “entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, [of] which he knows or ought to know” (see Indermaur at 288). In contrast, licensees “must take the premises as they find them apart from concealed sources of danger; where dangers are obvious they run the risk of them” (see Latham v R Johnson & Nephew, Limited [1913] 1 KB 398 at 411). As for trespassers, occupiers were traditionally only liable to them if they wilfully injured them or acted in reckless disregard of their presence (see Robert Addie and Sons (Collieries), Limited v Dumbreck [1929] AC 358 (“Addie”) at 365 and 370); subsequently, a cryptic duty of “ordinary humanity” towards trespassers was enunciated in British Railways Board v Herrington [1972] AC 877 (“Herrington”) at 922H–923A. Leading legal commentators have long been dismayed at this murky state of affairs, and have been strident in their criticism of it. For instance, Sir John Salmond, in J W Salmond, Law of Torts (Sweet & Maxwell, 10th Ed, 1945), opined (at p 471) that:

  41. [28] The traditional common law rules on occupiers’ liability have further been described as complex, cumbersome and expensive to administer because they require elaborate arguments in court (see Australian Capital Territory Law Reform Commission, Occupiers’ Liability (Report No 42, 1988) at para 13). It has also been observed in Fleming’s The Law of Torts (Carolyn Sappideen & Prue Vines eds) (Lawbook Co, 10th Ed, 2011) at para 22.10 that under the traditional common law rules, the distinctions between the different kinds of entrants were increasingly manipulated and distorted by the courts in the light of changing notions of social responsibility. This was especially the case as the distinction between invitees and mere licensees, on paper, turned on whether or not their presence on the occupier’s premises brought any material benefit to the occupier. Lord Reid, with his customary acuity, observed in A C Billings & Sons Ltd v Riden [1958] AC 240 at 249:

  42. [29] This led to harsh and unjust outcomes (by modern standards) – a friend who was invited over for dinner simpliciter would be owed a lesser duty of care as compared to a friend who was invited over for dinner to discuss business. To achieve just outcomes in the face of the confusing patchwork of legal classifications, courts in several common law jurisdictions often responded by shoehorning either the facts or the law (sometimes both). Hard cases make bad law. Occupiers’ liability is certainly one area of the law where this legal adage loudly resonates. Attempts to reach just results were frequently underpinned by meretricious rationales teetering on the edge of absurdity. Tellingly, the UK Law Reform Committee, in Third Report (Occupiers’ Liability to Invitees, Licensees and Trespassers) (Cmd 9305, 1954) (Chairman: Jenkins LJ), was unable to countenance these embarrassing legal anomalies and opined (at para 73) that:

  43. [30] Lord Wilberforce, in Herrington at 912H–913A, expressed similar dissatisfaction with the traditional common law rules on occupiers’ liability:

  44. [31] The leading Canadian textbook on tort law is equally blunt. In Allen M Linden, Canadian Tort Law (Lexis Law Publishing (VA), 5th Ed, 1993), it is stated (at p 612) that:

  45. [32] The formalism of the traditional common law rules on occupiers’ liability appeared to be largely due to path dependence (which resulted in the outcome of each case turning on how the entrant in question was classified within the invitee-licensee-trespasser trichotomy), the existence of inconvenient historical legal precedents and, significantly, the peculiarities of the previously extant jury system in England. In Toomey v The London, Brighton, and South Coast Railway Company (1857) 3 CB (NS) 146; 140 ER 694, where the plaintiff sued the defendant railway company for injuries which he sustained when he fell down some steps at the defendant’s railway station, Williams J commented (at 150; 696) that:

  46. [33] The broad overview above underscores the unsatisfactory nature of the dysfunctional historical classification adopted in this area of the law. Under the traditional common law rules on occupiers’ liability, the classification of an entrant was essentially a question of law. The questions to be put to the jury were controlled by the device of classifying entrants into different legal categories, towards whom different standards of conduct were demanded. In this fashion, the judiciary retained more control over the issue of liability. Without this device, the question of whether or not a particular occupier (who, at the time the traditional common law rules on occupiers’ liability emerged, would typically also have been the owner of the property concerned) was negligent would be a question of fact – in other words, juries would more or less have had carte blanche to find liability. As Norman S Marsh perceptively noted in his article “The History and Comparative Law of Invitees, Licensees and Trespassers” (1953) 69 LQR 182 at p 185, judges “would not have been willing to leave the landowner to the verdict of a jury belonging, as a general rule, to the class of potential visitors to property rather than to that of landowners”. Dan B Dobbs, in The Law of Torts (West, 2000) at p 615, agrees and states that in the United States, “it is quite possible that courts intend by these classifications … to displace the jury’s role in favor of tight control by the judges”. It is safe to infer that because of the existing class divisions and prevailing social norms in England at the time the traditional common law rules on occupiers’ liability emerged, the invitee-licensee-trespasser trichotomy was created to circumscribe the jury’s power by either allowing the judge to determine a case based on a legal ruling as to the status of the entrant (viz, whether he was an invitee, a licensee or a trespasser) or enjoining the jury to apply the mechanical rules of the trichotomy (see John Harvey Nelson v Daryl Dean C Freeland and Belinda Brittain Freeland 507 SE 2d 882 (1998) (“Nelson”) at 887; see also Michael Sears, “Abrogation of the Traditional Common Law of Premises Liability” (1995–1996) 44 U Kan L Rev 175, in particular, at pp 192–195, where the trichotomy is cited as a jury control device). The fundamental issue of whether the occupier had acted reasonably vis-à-vis the particular entrant concerned was never placed before the jury because principles of negligence were not then in existence. Pertinently, England has in recent times abolished jury trials for most civil causes of action; Singapore has abolished jury trials in toto. Indeed, jury trials were never employed for civil matters in Singapore. In my view, the antiquated approach under the traditional common law rules on occupiers’ liability of making elaborate legal distinctions between different categories of entrants has outlived its usefulness.

  47. [34] Plainly, an inductive framework based on Lord Atkin’s “neighbour” principle offers a coherent route to resolving many of the existing classificatory problems in the law on occupiers’ liability. The formalistic, confusing and complex distinctions between invitees, licensees and trespassers would simply be rendered otiose in the light of a general overarching principle. Indeed, the case for the Atkinian concept of “neighbour” to be used as the clarion unifying principle is compelling; under such a framework, the law on occupiers’ liability would merely be a subset of the general law of negligence.

  48. [35] It is trite to state that the common law is incremental in nature: the doctrine of stare decisis obliges judges to adjudicate with reference to decided cases. As stated by the English Court of Appeal in Velazquez, Limited v Commissioners of Inland Revenue [1914] 3 KB 458 at 461, “when there has been a decision of [a superior court] upon a question of principle it is not right for this Court, whatever its own views may be, to depart from that decision”. Cases are the atomistic building blocks of the common law. This is in sharp contradistinction with the civil law, where stare decisis does not apply and where general principles of law, as embodied in systematic codes, are the building blocks. At the risk of oversimplification, common law systems primarily engage in inductive reasoning, while civil law systems primarily engage in deductive reasoning.

  49. [36] As such, in common law systems, the true scope of any purported principle of law, inductively derived, is inherently uncertain. Principles of law – including the Atkinian “neighbour” principle – are only valid in so far as they are recognised to govern particular factual matrices and are actually applied in subsequent cases. To illustrate: for years after Donoghue was decided, it languished in obscurity. Many narrowly construed Donoghue to stand only as precedent that manufacturers of goods were liable for injuries caused to ultimate consumers. In particular, Candler v Crane, Christmas & Co [1951] 2 KB 164 (“Candler”) (since overruled by Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465) held that Donoghue did not affect the principle that a false statement made negligently by one person to another, although acted on by the latter to his detriment, was not actionable in tort. In Candler, Cohen LJ reasoned that the factual matrix before the court was on all fours with that of the earlier case of Le Lievre and Dennes v Gould [1893] 1 QB 491, which concerned carelessly drawn architectural certificates, and declined to apply an expansive notion of the Atkinian “neighbour” principle. With the benefit of hindsight, Candler and other cases of its ilk are, in a sense, unsurprising: “the process of reasoning adopted by many of the judges was not untypical of the era [ie, the 80-odd years following the decision in Indermaur in 1866] …, being marked by reliance on precedents rather than principle” (see S H Bailey, “Occupiers’ Liability: the Enactment of ‘Common Law’ Principles” in Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (T T Arvind & Jenny Steele eds) (Hart Publishing, 2013) (“Tort Law and the Legislature”) ch 9 at p 191).

  50. [37] Some leading academics went even further, and doubted the very existence of the Atkinian “neighbour” principle. For instance, W T S Stallybrass, in Salmond on Torts (Sweet & Maxwell, 8th Ed, 1934), said at (p 459) that:

  51. [38] In a similar vein, P A Landon (“Landon”), in Pollock on Torts (Stevens & Sons, 15th Ed, 1951), stated (at p 333) that:

  52. Indeed, Landon pertinently proceeded to point out that “the duty owed to a bare licensee – clearly a ‘neighbour’” (at p 332) was one such area of law where the then accepted rules on occupiers’ liability were inconsistent with the Atkinian “neighbour” principle.

  53. [39] It thus comes as no surprise that as at 1957, the traditional common law rules on occupiers’ liability had not been subsumed under the general rubric of negligence (in so far as there was such a rubric at that time). The English Legislature, responding to widespread dissatisfaction with the confusing and unpredictable state of this area of the law, stepped in and promulgated the 1957 English Act (see [20] above). That Act swept away the formalistic categories of relationship adopted under the traditional common law rules (with the exception of trespassers) and imposed a “common duty of care” (see s 2(1)) on an occupier towards all “visitors” (defined in s 1(2) as invitees and licensees) on his premises. However, it did not obliterate the distinction between the static and the dynamic which I outlined earlier at [20]–[21] above (referred to hereinafter as “the static-dynamic dichotomy”): s 1(1) specifically referred to “dangers due to the state of the premises”. In Fairchild v Glenhaven Funeral Services Ltd and others [2002] 1 WLR 1052 at [129]–[130], the English Court of Appeal confirmed that the language used in the 1957 English Act strongly indicated that the English Parliament intended the Act to apply only to static duties (ie, duties arising from the static condition of property). Thus, even after legislative intervention, the law in England on occupiers’ liability was still not fully rationalised as part of the general law of negligence.

  54. [40] The 1957 English Act is not listed in the First Schedule of the Application of English Law Act (Cap 7A, 1994 Rev Ed) (“the AELA”). As such, pursuant to s 5 of the AELA, the 1957 English Act is not part of Singapore law (see also Industrial Commercial Bank v Tan Swa Eng and others and another appeal [1995] 2 SLR(R) 385 at [15]). In Singapore, the common law still applies in the area of occupiers’ liability; but, as I shall explain below, the autochthonous common law of Singapore today need not and should no longer be the same as the traditional common law rules on occupiers’ liability.

  55. The illogicality of the static-dynamic dichotomy

  56. [41] In my view, the antiquated English common law distinction (which still prevailed at the time of the 1957 English Act) between the law on occupiers’ liability and the general law of negligence is not and should not be conclusive of the common law position in Singapore today.

  57. [42] The analysis above has already touched on the genesis of the traditional common law rules on occupiers’ liability. I shall now examine whether the static-dynamic dichotomy is logically justified. A distinction between the static and the dynamic could be warranted if one could cleanly delineate all potential factual matrices (regarding wrongs situate on property) into one category or the other with no overlap (as illustrated in the Venn diagram below):

  58. Set of all factual matrices regarding wrongs situate on property

  59. [43] However, it is not always possible, in practice, to cleanly delineate between the static and the dynamic in the above manner. There are some (although not all) factual matrices which are susceptible to both classifications. Take, for instance, the facts of the instant case. HAL and LAl Offshore were occupiers of 9/11 TBC, and consequently came under certain static duties: they were to ensure that reasonable efforts were made to ensure that nobody would suffer harm from the condition of the land (which would potentially entail fencing up 9/11 TBC), and so on and so forth. See Toh entered 9/11 TBC through a gap in the fence separating 9/11 TBC and 15 TBC, and this had nothing to do with any activity on 9/11 TBC. On the other hand, HAL had sublet a certain part of 9/11 TBC to LAl Offshore, whose client (viz, KFELS) had in turn engaged Asian Lift to take delivery of the KFELS living quarters being built at 9/11 TBC by LAL Offshore. Asian Lift was an independent contractor who engaged in potentially dangerous operations on 9/11 TBC, viz, the Mooring Operation described at [6]–[7] above. As this was a dynamic activity, HAL and LAl Offshore were under a non-delegable duty to take reasonable care to ensure that nobody would suffer harm as a result of the Mooring Operation, and this would potentially entail ensuring that their respective employees were denied access to the Operations Site, and so on and so forth. See Toh was injured because of the dangerous mooring activity, and this had nothing to do with the static condition of 9/11 TBC. In such a case, one portion of the factual matrix would seem to be more susceptible to one classification, while another portion of the factual matrix would seem to be more susceptible to another classification.

  60. [44] Another example of a case where a clean divide between the static and the dynamic is not possible would be the seminal case of Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479 (“Zaluzna”). The plaintiff in Zaluzna slipped in the foyer area of the defendant supermarket because of a wet floor and was injured. The vinyl-tiled floor of the foyer had become wet due to the rain. The majority of the High Court of Australia (viz, Mason, Wilson, Deane and Dawson JJ) opined (at 486) that:

  61. [45] In cases similar to Zaluzna, there is an even deeper level of ambiguity: the entire factual matrix seems to be equally susceptible to both classifications.

  62. [46] Trying to distinguish between the static and the dynamic is tantamount to attempting to untie an intractable Gordian knot. Unlike purely philosophical predicaments like the Ship of Theseus, which touch on problems of classification that have no practical impact (in everyday life, it does not matter whether or not the Ship of Theseus remained the same after being entirely replaced piece by piece), the static-dynamic dichotomy has a real impact on the content of the duty (if any) owed by an occupier.

  63. [47] Even if the static-dynamic dichotomy were logically workable, the delineation between the static and the dynamic might practically turn on seemingly inconsequential details. For instance, in Revill v Newbery [1996] QB 567, it was pointed out (at 575) that:

  64. On the hypothetical facts above, there is a (technically speaking) logically workable distinction between the occupier who arranges for a third party to shoot on his land and the occupier-shooter. However, the distinction is arbitrary and does not comport with justice. In respect of the injured trespasser, Occupier A, who fortuitously arranges for a third party to shoot on his land, would be held to the lower standard of “ordinary humanity” enunciated in Herrington (see [27] above), whereas Occupier B, who does not arrange for a third party to shoot on his land but instead goes shooting himself, would be held to the ordinary standard of reasonable care under the law of negligence. This could also have the unintended consequence of perversely incentivising occupiers to arrange for third parties to carry out potentially dangerous activities on their property. There seems to be no defensible reason for distinguishing between Occupier A and Occupier B, save for the brute fact of the static-dynamic dichotomy. Put another way, the static-dynamic dichotomy obscures the ultimate question of whether a particular occupier ought to be liable in tort to a particular entrant; the process of classification may be based on facts that are plainly irrelevant to this ultimate question, and is apt to lead to injustice.

  65. [48] For the sake of completeness, I would like to add that similar problems of classification plague the invitee-licensee-trespasser trichotomy. In Nelson, it was trenchantly pointed out (at 889–890):

  66. The invitee-licensee-trespasser trichotomy is thus open to the same objections enumerated above: first (from the viewpoint of logic), it is potentially ambiguous whether an entrant is to be classified as an invitee, a licensee or a trespasser; and second (from the viewpoint of practice), the distinctions between the categories could turn on inconsequential details that potentially lead to injustice.

  67. (1) Resolving the static-dynamic dichotomy

  68. [49] I leave the trichotomous distinction between licensees, invitees and trespassers aside for the moment. Faced with intractable problems of classifying factual matrices as either static or dynamic, the court can opt for one of two solutions. The court can take a “disjunctive” approach, attempt to shoehorn an ambiguous factual matrix into the classification which it seems to be closer to and hold that a legal duty is owed only under one rubric. Alternatively, the court can take a “conjunctive” approach, hold that both classifications are equally valid and find that duties are concurrently owed under both the law on occupiers’ liability (properly so-called) vis-à-vis the static and the general law of negligence vis-à-vis the dynamic.

  69. [50] The “disjunctive” approach is clearly unacceptable: the ambiguities involved in classification would inexorably lead to arbitrary outcomes. This is because the court is not guided by rational criteria in shoehorning an ambiguous factual matrix into one particular classification – taking the factual matrix of Zaluzna as an example, what rational criteria can possibly be used to determine whether an injured supermarket shopper who slipped on the rain-soaked floor of a supermarket is to be owed duties under one classification or the other? Any declaration that such a factual matrix falls under one classification or the other would be a mere ipse dixit.

  70. [51] The “conjunctive” approach is not without its own objections. If concurrent duties are owed under both the law on occupiers’ liability and the general law of negligence, it poses the question as to whether two disparate sets of rules are strictly necessary, especially when the general law of negligence is premised on the general Atkinian “neighbour” principle, which, ex facie, should apply with equal force to occupiers of property qua occupiers. I should point out here that this question of whether it is necessary to have two disparate set of rules to govern a particular legal duty does not always arise where concurrent duties are owed under the law: for instance, a professional may owe concurrent duties to take care in both tort and contract. However, this does not raise the question of whether the duties in tort should be subsumed under the duties in contract (or vice versa), because each set of duties is governed by its own distinct and non-reconcilable principles.

  71. [52] In my view, the time is now ripe for Singapore to cut the Gordian knot shackling the traditional common law rules on occupiers’ liability, rather than attempt to unravel it. Eliminating the static-dynamic dichotomy would prevent classificatory problems from arising at two levels: first, at the static-dynamic level; and second (assuming that the duty owed by the occupier relates to the static), at the status level, where the traditional common law rules distinguish between invitees, licensees and trespassers.

  72. [53] In Singapore, it is well-settled that the landmark decision of Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”) has authoritatively laid out the framework for the imposition of a duty of care in claims arising out of negligence. Under the test set out in Spandeck (referred to hereinafter as either “the Spandeck test” or “the Spandeck approach”), three elements must be established before a duty of care can be imposed on a defendant:

  73. (a) factual foreseeability, which this court described as “not a necessary element in any claim in negligence, [but] just … a threshold question which the court must be satisfied is fulfilled, failing which the claim does not even take off” [emphasis added] (see Spandeck at [76]);

  74. (b) sufficient legal proximity between the plaintiff and the defendant so as to justify imposing a prima facie duty of care on the latter (referred to by this court at [77] of Spandeck as “[t]he first stage of the [Spandeck] test” [emphasis in original]); and

  75. (c) the absence of policy considerations that ought to negate a duty of care (which is the second limb of the Spandeck test).

  76. With regard to the element of proximity, this court stated (per Chan Sek Keong CJ at [79] of Spandeck) that it “import[s] the whole concept of the necessary relationship between the claimant and the defendant as described by Lord Atkin in Donoghue”.

  77. [54] Unlike the position in 1957, it is now undeniable that the common law tort of negligence is, at its core, supported by a substratum of general principles of law. It is also indisputable that in the context of the law of negligence in Singapore, the Spandeck test is the Grundnorm – the sole, ultimate set of principles upon which a duty to take reasonable care under the law of negligence rests. Pertinently, Chan CJ held in Spandeck (at [71]) that:

  78. [55] The crux of Issue 1 boils down to this: either the Spandeck test is comprehensive, with the rules governing occupiers’ liability being particular manifestations of the Spandeck test; or, the Spandeck test has a narrower remit and does not apply to the milieu of occupiers’ liability. In my view, the law of negligence must be “a coherent body of rules, and not consist of singular instances of judicial decisions unrelated to each other” (see Spandeck at [28]). In this regard, I find the evolutionary path taken by the common law in the jurisdictions examined at [56]–[75] below instructive.

  79. (2) The evolutionary path in other jurisdictions

  80. (A) England

  81. [56] As alluded to above, in England, the English Parliament stepped in to promulgate the 1957 English Act. This Act eliminated the distinction between invitees and licensees by defining (in s 1(2)) both of these categories of persons as “visitors” (ie, lawful visitors), but left the common law distinction between trespassers and lawful visitors intact. The latter distinction was subsequently abrogated by the Occupiers’ Liability Act 1984 (c 3) (UK) (“the 1984 English Act”), which codified the duty of care owed by an occupier qua occupier to a trespasser. The static-dynamic dichotomy, however, remained intact under both the 1957 English Act and the 1984 English Act. The English courts thus have not had the opportunity to definitively consider whether the rules governing occupiers’ liability should be subsumed under the general principles of the law of negligence. Given that the 1957 English Act and the 1984 English Act have codified static duties, it is even arguable that the English courts are de jure constrained (because of Parliamentary supremacy) from even considering the question. In any event, there is little to no practical utility in considering the question. As Clerk & Lindsell on Torts (Michael A Jones & Anthony M Dugdale eds) (Thomson Reuters (Legal) Limited, 20th Ed, 2010) (“Clerk & Lindsell on Torts (2010)”) states at para 12-04:

  82. [57] The case of Slater v Clay Cross Co Ltd [1956] 2 QB 264 is the closest that the English courts have come to taking a position on the issue of whether the law on occupiers’ liability should be subsumed under the general law of negligence. There, Denning LJ (as he then was) stated in obiter dicta (at 269) that:

  83. [58] At this juncture, I would also like to point out that Lord Wilberforce declared, obiter, in Herrington that “[t]here can be no doubt that the law regarding occupiers’ liability forms part of the general law of negligence” (at 912F). However, Herrington was decided in 1972, by which time the law in England on occupiers’ liability had already been partially codified (vis-à-vis invitees and licensees) by the 1957 English Act. Thus, in so far as the English Parliament had by then already prescribed a statutory duty of care (which is hierarchically superior to a common law duty of care), it would be inaccurate to state that in England, the law on occupiers’ liability forms part of the general common law of negligence. Nevertheless, I regard Lord Wilberforce’s comment to be persuasive as to what the English common law position on occupiers’ liability might hypothetically have been, circa 1972, had the English Parliament not intervened.

  84. [59] It is also interesting to note that some English cases have ignored the 1957 English Act altogether, as can be seen from Davies v The Mayor, Aldermen and Burgesses of The Borough of Tenby [1974] 2 Lloyd’s Rep 469 (“Davies”) and Ward v Tesco Stores Ltd [1976] 1 WLR 810 (“Ward v Tesco Stores”). Davies concerned a plaintiff who became a quadriplegic as a result of striking his head on the sea bottom after diving from the defendant’s loose diving-board, while Ward v Tesco Stores concerned a plaintiff who slipped and fell when she trod on spilt yoghurt on the defendant supermarket’s floor. In both cases, there is no mention whatsoever of the 1957 English Act – further fortifying the proposition that the law on occupiers’ liability is, at its root, a mere subset of the general principles of the law of negligence. Clerk & Lindsell on Torts (2010) have therefore good reason to observe that “[i]ndeed, even in clear ‘occupancy duty’ cases the courts have on occasion simply ignored the [1957 English] Act” (at para 12-04). I conclude this overview of the complex labyrinth of the English common law rules on occupiers’ liability – which has created confusion and dissension among judges, lawyers and the public – by making reference to recent penetrating observations made by S H Bailey in Tort Law and the Legislature (at ch 9, p 211):

  85. (B) Australia

  86. [60] In Australia, two of the six States – viz, Victoria and Western Australia – have promulgated statutes similar to the 1957 English Act (see, respectively, the Wrongs Act 1958 (No 6420 of 1958) (Vic) (“the Wrongs Act 1958 (Vic)”) at ss 14A–14D and the Occupiers’ Liability Act 1985 (WA)). The position on occupiers’ liability in the other four Australian States thus remains governed by common law.

  87. [61] Australian common law has, however, now fully rationalised occupiers’ liability as a proper subset of the general principles of the law of negligence. The locus classicus is the Australian High Court case of Zaluzna (decided based on common law principles pre-dating the enactment of amendments to the Wrongs Act 1958 (Vic)). It would be apposite, at this stage, to set out the procedural history of that case.

  88. [62] The plaintiff in Zaluzna sued the defendant supermarket in the Supreme Court of Victoria, pleading both a breach of the general duty of care founded on the tort of negligence and a breach of the duty owed by an occupier qua occupier to an invitee. The trial judge confined himself to the static paradigm, and held that the defendant did not owe a duty stemming from the general principles of the law of negligence. The trial judge also found that the defendant had not breached the static duty owed by an occupier to an invitee. The plaintiff appealed to the Full Court of the Supreme Court of Victoria. Her appeal was allowed on the basis that the trial judge ought to have considered whether the defendant had been in breach of a general duty of care under the tort of negligence; a retrial was ordered. The defendant then appealed by way of special leave to the High Court of Australia. The majority dismissed the appeal, with Brennan J the sole dissenter.

  89. [63] After a review of the prior cases, the majority held that (at 486–487):

  90. [64] The Australian High Court went on to hold (by a majority) that the relationship between occupiers and all types of entrants (including trespassers) should be dealt with on the basis of the general law of negligence. I find the reasoning of the majority in Zaluzna particularly persuasive. Those in favour of maintaining the distinction between the law on occupiers’ liability and the general law of negligence may argue that there would be greater certainty if the content of an occupier’s duty is determined de jure solely by reference to the different classes of entrants. In my view, this is a mistaken approach, and presupposes that there can be certainty in the initial classification of an entrant. In truth, categorisation has historically been a protracted legal issue riddled with technical intricacies and inconsistent application (see [48] above). Much time and energy has been expended on the minutiae of whether a particular entrant did or did not fall into a particular category, and this has detracted from the true issue of whether a particular occupier ought to be held accountable for his actions. The approach taken by the majority in Zaluzna gives greater flexibility to the courts and departs from “the rigidity of the classification of entrants, and the artificiality of distinguishing between the static condition of premises and activities conducted on the premises” (see Thompson v Woolworths (Q’land) Pty Limited (2005) 221 CLR 234 at 243).

  91. [65] It is apposite to note that under the approach of the majority in Zaluzna, the content of the duty owed by an occupier “will [still] vary with the circumstances of the plaintiff’s entry upon the premises” (see Zaluzna at 488). The entrant’s circumstances of entry remain de facto pertinent: the court is entitled to have regard to all the relevant circumstances of the case to determine whether a duty of care is owed by the occupier to the entrant, and if so, whether the duty of care owed by the occupier has been breached.

  92. [66] I would further add that subsuming the law on occupiers’ liability under the general law of negligence would actually promote certainty in the law. The antiquated and overly complex rules governing occupiers’ liability would be replaced by the relatively more straightforward and understandable tests under the general law of negligence. On this note, I wholeheartedly agree with the observations of the New South Wales Court of Appeal in Gorman v Williams [1985] 2 NSWLR 662 (at 665E) that:

  93. (C) Canada

  94. [67] In Canada, of the nine provinces which apply the common law (ie, all ten provinces of Canada excluding Quebec), six provinces – viz, Alberta, British Columbia, Manitoba, Nova Scotia, Ontario and Prince Edward Island – have enacted occupiers’ liability legislation. Saskatchewan still applies the traditional common law rules on occupiers’ liability, while New Brunswick has abolished the common law principles on occupiers’ liability altogether.

  95. [68] Notably, in Newfoundland, its Court of Appeal has declared the rules governing occupiers’ liability to be a subset of the general law of negligence. In Stacey v Anglican Churches of Canada (Diocesan Synod of Eastern Newfoundland & Labrador) (1999) 47 CCLT (2d) 153, a unanimous coram cited a number of cases where the boundaries between the various categories of entrants had been blurred, and held (at [29]–[30]):

  96. (D) The United States

  97. [69] In the United States, the Supreme Court of California was the first to abolish, in 1968, the traditional tripartite distinction between trespassers, licensees and invitees. In James Davis Rowland Jr v Nancy Christian 443 P 2d 561 (1968) (“Rowland”), the court referred to various reasons for abolishing this distinction. First, the American courts had broadly defined “active” operations (the American term of art for dynamic activities on land), at times giving the term a strained construction in an apparent attempt to avoid the general rule limiting liability (at 565). Secondly, the traditional tripartite distinction between trespassers, licensees and invitees was unrealistic, arbitrary and inelastic; the exceedingly fine distinctions had resulted in confusion, with many cases in fact applying the general doctrine of negligence (at 567). Third, this distinction was not justified in the light of modernity; it was apparent that the three-fold classification did not reflect the major factors which should determine whether or not immunity should be conferred upon an occupier of land in respect of damage or injuries sustained by an entrant (at 567).

  98. [70] Most pertinently, the court held (at 568):

  99. [71] I agree with the reasons stated by the Supreme Court of California. In particular, I shall expand on its third reason (viz, policy considerations for abolishing the traditional tripartite invitee-licensee-trespasser distinction) in the discussion below (at [86]–[97]).

  100. [72] The North Carolina Supreme Court, in the 1998 decision of Nelson, abolished the invitee-licensee-trespasser trichotomy (at 892), and noted (at 886) that 12 other American jurisdictions (exclusive of North Carolina) had eliminated this trichotomy (those 12 jurisdictions being Alaska, Colorado, California, District of Columbia, Hawaii, Illinois (with respect to children), Iowa, Louisiana, Montana, Nevada, New Hampshire and New York). 14 other jurisdictions (at 886–887) had eliminated the distinction between licensees and invitees (those 14 jurisdictions being Florida, Kansas, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, North Dakota, Oregon, Rhode Island, Tennessee, Wisconsin and Wyoming). As such, as of 1998, 27 of the 51 American jurisdictions (ie, the 50 States and the District of Columbia) no longer followed the traditional common law rules on occupiers’ liability. The North Carolina Supreme Court emphatically declared (at 892) that:

  101. [73] Notably, this seismic shift away from the traditional English categories occurred despite the fact that it would relinquish tight judicial control in favour of the still extant jury system in the United States (see [32]–[33] above).

  102. (E) Other jurisdictions

  103. [74] Scotland has enacted legislation dealing with occupiers’ liability which is broader in scope that its English counterpart (viz, the 1957 English Act), in that the Occupiers’ Liability (Scotland) Act 1960 (c 30) also extends an occupier’s duty of care to trespassers. New Zealand has passed legislation substantially modelled on the 1957 English Act (viz, the Occupiers’ Liability Act 1962 (NZ)).

  104. [75] It bears mention that the above legislative changes quickly followed the changes made in England by the 1957 English Act, well before the subsequent maturing of the general principles underpinning the law of negligence. Further, both Scotland and New Zealand then had English legal apron strings.

  105. The Spandeck test applied to occupiers

  106. [76] A comparative survey of the various common law jurisdictions clearly indicates that the vast majority of them have, at the bare minimum, eliminated the invitee-licensee dichotomy (whether by evolution of the common law or by statute). This is not a mere argumentum ad verecundiam: the foregoing fortifies my belief that as a matter of logic, the principles governing occupiers’ liability are a proper subset of the general principles of the law of negligence. The law in Singapore on occupiers’ liability can and should be subsumed under the tort of negligence. I now apply the Spandeck test to occupiers to demonstrate this.

  107. (1) Reasonable foreseeability

  108. [77] The threshold factual test of reasonable foreseeabilty is readily met in the case of occupiers. It is eminently foreseeable that entrants will suffer damage if occupiers do not take reasonable care to eliminate danger, whether static or dynamic, on their premises.

  109. (2) Proximity

  110. [78] As was explained in Spandeck at [78], proximity embraces physical, circumstantial and causal proximity, and includes proximity arising from the voluntary assumption of responsibility and concomitant reliance.

  111. [79] There is undoubtedly physical proximity between an occupier and an entrant to his property merely by virtue of the fact that the entrant is physically situated on the occupier’s property.

  112. [80] In so far as cases of lawful entrants are concerned (ie, entrants whose circumstances of entry to an occupier’s property can be definitively said, on a balance of probabilities, to be lawful), circumstantial proximity is tautologically present in the occupier-lawful entrant relationship. To elaborate, the hallmark of a lawful entrant’s presence on an occupier’s premises is consent to his presence on the part of the occupier; it is this consent, which grounds the occupier-lawful entrant relationship and justifies a legal finding that there is proximity between the occupier and the lawful entrant. I thus hold that under the first limb of the Spandeck approach, the vast majority of occupiers having control of the property which they occupy and/or the activities carried out there de jure owe a prima facie duty of care to lawful entrants. At the same time, it bears emphasis that not all “occupiers” (in the generic non-technical sense of persons who occupy property, regardless of the extent of their control over the property concerned and/or the activities carried out there) owe a prima facie duty of care to lawful entrants – essentially, this turns on the degree of control which an occupier has over the property concerned and/or the activities carried out there. There may be cases where an “occupier” has so little control over the property and/or the activities carried out there that, for all intents and purposes, he effectively does not have control over that property and/or those activities. Leaving aside this category of “occupiers”, vis-à-vis occupiers who do have control over the property which they occupy and/or the activities carried out there, I should emphasise that they are not to be viewed as insurers of the safety of their property. Their duty is merely to exercise reasonable care.

  113. [81] In contrast to a lawful entrant, a trespasser is one who “goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to” (see Addie at 371). The term “trespassers” denotes, in actuality, a residual class of persons who do not have any legal justification for being on an occupier’s premises. It is an unsatisfactory protean term as “it covers the wicked and the innocent: the burglar, the arrogant invader of another’s land, the walker blithely unaware that he is stepping where he has no right to walk, or the wandering child” (per Lord Morris of Borth-y-Gest in Herrington at 904A). As such, unlike the case of lawful entrants, it is impossible to hold that occupiers de jure owe a blanket duty of care to all trespassers. In this regard, I am alive to the fact that there remains a species of Gordian knot (albeit smaller than that which shackled the traditional common law rules on occupiers’ liability and therefore manageable), namely: who is a “trespasser”? To illustrate this sometimes awkward difficulty, I revert once again to the example given in Nelson of a real estate agent who initially trespasses onto another’s land, seemingly becomes an invitee because he starts a business conversation with the occupier and finally morphs into a licensee because he engages in social pleasantries with the occupier (see above at [48]).

  114. [82] Nevertheless, I think that a de facto distinction between cases of lawful entrants on the one hand and a residual category of entrants whose circumstances of entry to an occupier’s property cannot be definitively said, on a balance of probabilities, to be lawful (“residual entrants”) on the other ought to be maintained under the Spandeck approach as abolishing it may place an unnecessary and unfair burden on occupiers who have no reason to expect a residual entrant’s presence. Cases involving residual entrants would range from cases where it is uncertain (applying the civil standard of proof) whether the circumstances of the particular entrant’s entry to the occupier’s premises are lawful to, at the other end of the spectrum, cases where it can be definitively said, on a balance of probabilities, that the circumstances of the entrant’s entry are unlawful (see, eg, the example given by Lord Morris in Herrington of a burglar (at [81] above)). Whether or not a prima facie duty of care arises vis-à-vis a residual entrant must depend on all circumstances of the case. I would like to reiterate that this is not a return to the old common law de jure “categorisation” approach, under which liability turned dramatically on whether the court slotted an entrant into the “lawful visitor” or the “trespasser” category. Rather, under the Spandeck approach to occupiers’ liability, the court makes a preliminary inquiry into the classificatory issue of whether a particular entrant’s circumstances of entry to the occupier’s premises are (on a balance of probabilities) lawful: if they are lawful, a prima facie duty of care is owed by the occupier in control of the premises in accordance with the first limb of the Spandeck test (set out at [53(b)] above) because sufficient legal proximity must, by definition, be present. It is only in cases where it cannot be said (on a balance of probabilities) that the circumstances of an entrant’s entry are lawful (ie, where an entrant is a residual entrant) that the court then goes on to consider the issue of whether the particular facts of the case before it justify imposing a prima facie duty of care pursuant to the first limb of the Spandeck test. In this manner, the Gordian knot of classification is resolved, and one is left with a question of fact as to whether a particular occupier ought to owe a particular entrant a prima facie duty of care. Put simply, the lawful entrant/residual entrant dichotomy is not a true classificatory dichotomy logically mandated by Spandeck, but is merely a convenient (shorthand) way of applying the Spandeck test to particular facts. In short, when the circumstances of an entrant’s entry cannot be definitively said (on a balance of probabilities) to be lawful, the first limb of the Spandeck test is applied in full – ie, instead of only considering whether or not the circumstances of the entrant’s entry were lawful and whether or not the occupier had control of the property so as to justify the de jure imposition of a prima facie duty of care on the occupier (see [80] above), the court will consider all the factors relevant to the first limb of Spandeck.

  115. [83] In this regard, two diametrically opposed post-Zaluzna Australian cases are illustrative. In Stone v Clarence Municipality (1993) 79 LGERA 392 (“Stone”), the plaintiff, then an 11-year-old boy, was injured while climbing (together with a friend) a rock face in a disused quarry. He sued the defendant municipal council, which was the owner and occupier of the land where the quarry was located. It was found as a fact that the quarry was not effectively and securely fenced off (at 400). The finding that there was a duty of care on the defendant’s part hinged on two features: first, that wandering, active and mischievous children were involved (at 399); and second, that one particular (not as steep) rock face was an allurement (ibid). The Supreme Court of Tasmania (per Wright J) held that the defendant “should have foreseen a distinct possibility that [that particular rock face] would present an attractive climbing challenge to normally active and adventurous children” (ibid). Most pertinently, Wright J held that “I can well imagine that two normal eleven year olds may readily undertake this venture without being alive to the potential danger from loose rock at the top end of their route” [emphasis added] (ibid).

  116. [84] In State of South Australia v Wilmot (1993) 62 SASR 562 (“Wilmot”), the respondent was an inexperienced trail bike rider who rode uninvited on unalienated Crown land, and subsequently got injured. At first instance, she succeeded in her claim against the Crown. On appeal by the Crown, the Supreme Court of South Australia held that the Crown did not owe the respondent a duty of care because of various factors. Firstly, the Crown had not created any danger on the land: the dangers arose from the topography of the land (at 575), were eminently self-evident (ibid) and were, indeed, precisely what made negotiating the difficult terrain exciting for trail bike riders (see Wilmot at 571 and 576). Secondly, it would be impractical and unreasonable for the Crown to convert the land into a managed park (at 575; this holding was made in the context of the respondent’s argument that the Crown should have taken over supervision of the land and converted it into a managed park). Thirdly, it would be futile to erect fences or warning signs blocking off particular riding tracks on the land as these would be quickly destroyed (at 570–571); the lack of signs was, in any case, not causative of the respondent’s injuries (at 576).

  117. [85] The key distinguishing feature between Stone and Wilmot seems to be that of culpability on the part of the respective entrants. In Stone, the then 11-year-old plaintiff did not know better and was allured by a particular rock face in the disused quarry. In Wilmot, the respondent trial bike rider rode on the disused land precisely because she knew it was dangerous: it was the peril that made it exciting to ride there. In a Wilmot-type situation, the law would be loathe to reward a reckless thrill-seeker (for completeness, this would also be relevant to the defence of volenti non fit injuria). Without laying down a cast-iron principle of law, I would like to state that the culpability of the entrant is one of the factors which is de facto relevant to the inquiry into whether there is, in law, a sufficiently proximate relationship between the occupier and the entrant to justify imposing a prima facie duty of care on the former.

  118. (3) Policy considerations

  119. [86] I now consider the second limb of the Spandeck test – viz, whether, if the first limb of the test is satisfied, policy considerations ought to negative the existence of the prima facie duty of care imposed under the first limb. It would be apposite to note that under the second limb, the courts are not prohibited from having due regard to positive policy considerations (ie, policy considerations militating in favour of imposing a duty of care), for courts may sometimes need to deploy countervailing positive policy considerations to dismiss negative policy considerations (ie, policy considerations militating against imposing a duty of care): see Animal Concerns Research & Education Society v Tan Boon Kwee [2011] 2 SLR 146 at [77].

  120. [87] At this juncture, I would also like to add that I agree with the following observations made recently by Andrew Robertson in his article “On the Function of the Law of Negligence” (2013) 33 OJLS 31 at p 32:

  121. [88] As I alluded to at [86] above, the second limb of Spandeck only comes into play when the first limb is satisfied – that is, when the court has already found that the parties are in a relationship of sufficient legal proximity such that (in the context of an occupiers’ liability case) the occupier is prima facie held to be the entrant’s keeper. As such, if the court subsequently finds, under the second limb of Spandeck, that policy considerations ought to negative the existence of this prima facie duty of care, this would be tantamount to the court denying interpersonal justice in the name of broader societal considerations.

  122. [89] It must be remembered that the raison d’être of the tort of negligence is to render interpersonal justice. In this regard, I fully agree with Lord Browne-Wilkinson’s comment in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (at 749G) that:

  123. [90] Thus, cogent policy considerations must be adduced to displace the prima facie position that interpersonal wrongs should be remedied.

  124. [91] It is also helpful to bear in mind the policy considerations underlying the traditional common law rules on occupiers’ liability. As Francis H Bohlen (“Bohlen”) noted in his article “The Duty of a Landowner Toward Those Entering His Premises of Their Own Right” (1920-1921) 69 U Pa L Rev 237 (at p 237):

  125. [92] Bohlen’s observations are corroborated by Rowland, where the Supreme Court of California held (at 564–565):

  126. [93] This is further supported by the United States Supreme Court case of Joseph Kermarec v Compagnie Generale Transatlantique 358 US 625 (1959), where a unanimous coram held (at 630), albeit in the context of injuries sustained on board a ship rather than injuries sustained on land:

  127. [94] As can be seen from the extracts quoted at [91]–[93] above, the traditional common law rules on occupiers’ liability reflect the wider socio-political norms and values which prevailed in England in the mid-19th century, when those rules first emerged with the decision in Indermaur. Although feudalism was by then no longer practised in England, the heritage of feudalism – in particular, the tradition of structuring societal relationships and obligations around ownership of land – still ran deep. Underlying this heritage of feudalism was the notion (albeit an eroding one) that landowners were a privileged class, almost completely immune from the King’s law, and were mini-sovereigns of their own right within their domains.

  128. [95] The Industrial Revolution and the rise of capitalism in the 1800s continued the erosion of the aforesaid notion. However, the law on occupiers’ liability continued to breathe feudalistic overtones: for instance, the delineation between invitees and licensees was solely premised on, respectively, the presence and the absence of material benefit accruing to the occupier from the entrant’s presence on the premises (see [28] above). A mere licensee was akin to a donee, and did not offer anything in return to the occupier in exchange for his presence on the premises. In contrast, where there was a quid pro quo involved, the entrant was classed as an invitee and was accordingly owed a greater duty than a mere licensee.

  129. [97] In sum, modern conditions require a modern tort of negligence which subsumes within it the law on occupiers’ liability. Policy arguments against the imposition of a duty of care on occupiers based on the general principles of the law of negligence no longer resonate in Singapore today. I fully agree with the following comments made in Rowland at 568:

  130. A coda on other objections to abolishing the traditional common law rules on occupiers’ liability

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