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Grounds publishedDecided 2 Mar 2012
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Court of Appeal

Tan Juay Pah v Kimly Construction Pte Ltd and others

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[2012] SGCA 17Case no. Civil Appeal No 208 of 2010

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  1. V K Rajah JA (delivering the judgment of the court):

  2. Introduction

  3. [1] This appeal arises from the collapse of a tower crane (“the Tower Crane”) at a project site at the National University of Singapore Society Kent Ridge Guildhouse at Kent Ridge Drive/Law Link (“the Project Site”) on 22 February 2008. Tragically, the collapse of the Tower Crane resulted in the deaths of three workers. Following this, the main contractor for the project, Kimly Construction Private Limited (“Kimly”), sued the sub-contractor, Lee Tong Boon trading as Rango Machinery Services (“Rango”), from whom it had rented the Tower Crane.

  4. [2] Rango in turn brought in Tan Juay Pah (“TJP”), the certifying mechanical engineer whom it had engaged to inspect the Tower Crane, as a third party, claiming an indemnity against him in the event that it was found liable to Kimly. TJP is a professional mechanical engineer who is registered as an authorised examiner (“AE”) under the Workplace Safety and Health Act (Cap 354A, 2007 Rev Ed) (“the WSHA”) and its relevant regulations (these regulations and the WSHA will hereafter be collectively referred to as “the WSH Regime”). As an AE, TJP is authorised by the Ministry of Manpower (“the MOM”) to inspect, test and certify lifting machines, including tower cranes, as being safe for use.

  5. [3] TJP then brought in Feng Tianming (“Feng”), a professional civil and structural engineer, and FES Engineering Pte Ltd (“FES”), the approved crane contractor, as fourth parties, claiming an indemnity and/or contribution from them in turn. Feng had been engaged by Rango to design and supervise the construction of the foundation of the Tower Crane, while FES had been engaged by Rango to erect and maintain the Tower Crane. (In this regard, we note that there is an inconsistency in the decision by the trial judge (“the Judge”) dated 28 January 2011 (viz, Kimly Construction Pte Ltd v Lee Tong Boon (trading as Rango Machinery Services) (Tan Juay Pah, third party; Feng Tianming and another, fourth parties) [2011] SGHC 26 (“the Decision”)), which states both (at [9]) that FES was engaged by Kimly and (at [22]) that FES was engaged by Rango. We have found that [22] of the Decision states the correct position, ie, FES was engaged by Rango.)

  6. [4] The Judge decided, inter alia, that (see [4] of the Decision):

  7. (a) Kimly succeeded in its claim against Rango;

  8. (b) Rango succeeded in its claim against TJP for an indemnity; and

  9. (c) TJP’s claim against Feng and FES was dismissed by virtue of TJP’s undertaking not to call any evidence against them should his submission of “no case to answer” fail (which turned out to be the case in the court below).

  10. [5] This is TJP’s appeal against the Decision.

  11. The facts

  12. Background to the dispute

  13. The relevant contracts

  14. [6] On or around 28 August 2006, Kimly entered into a sub-contract with Rango for the purpose of renting the Tower Crane from the latter (“the Sub-Contract”). The material terms of the Sub-Contract were as follows:

  15. [8] It is also undisputed that the fee which Rango paid TJP for his services was just $716.

  16. The structure of the Tower Crane

  17. [9] The Tower Crane was a saddle-jib crane. For our purposes, the critical structural aspect of the Tower Crane was the mast anchor assembly (located at the base of the mast), which comprised four mast anchors (also known as foundation anchors or fixing angles) embedded in concrete. These were identified as mast anchors #1 to #4 respectively. Each of the mast anchors had five joints, identified as joints a to e respectively. The four mast anchors were in turn connected to the four legs of a mast section by pin-joints. The mast of the Tower Crane comprised seven mast sections (identified as masts #1 to #7 respectively) placed one on top of the other, with the mast anchors at its base. It is undisputed that the component parts of the Tower Crane, including the mast anchors, were supplied by Rango.

  18. The erection of the Tower Crane

  19. [10] The Tower Crane was erected on 18 November 2006 and was used at the Project Site from that date until it collapsed on 22 February 2008. Before it could be used at the Project Site, certain requirements under the WSHA as well as the Workplace Safety and Health (General Provisions) Regulations (Cap 354A, Rg 1, 2007 Rev Ed) (“the WSH Regulations”), read with the “Occupational Safety an[d] Health Division Guidelines for the Submission for Use of Tower Crane in Factory Premises” issued by the MOM on 26 May 2005 (“the 2005 MOM Guidelines”), had to be met. For the purposes of this appeal, the relevant version of the WSH Regulations is that which was in force before the amendments introduced by the Workplace Safety and Health (General Provisions) (Amendment) Regulations 2009 (No S 463/2009).

  20. [11] Prior to the erection of the Tower Crane on 18 November 2006, Feng had prepared the design drawings and calculations according to which the Tower Crane was eventually erected. These drawings had been submitted to the MOM on 14 September 2006 in order to seek its approval for the use and operation of the Tower Crane. The MOM issued its approval on 29 September 2006, and Feng proceeded to authorise the erection of the Tower Crane. On 9 November 2006, Feng issued a Certificate of Supervision certifying that: (a) he had supervised the foundation works for and the erection of the Tower Crane; (b) the foundation works were structurally sound and complied with all the requirements under the WSHA; and (c) the Tower Crane was safe for use.

  21. [12] It is undisputed that TJP carried out three inspections of the Tower Crane as set out below:

  22. (a) The first inspection was on 15 August 2006. As part of this inspection, TJP engaged Hi Tech NDT Inspection Services (S) Pte Ltd (“Hi Tech”) to perform non-destructive tests (“NDTs”) on certain critical parts of the Tower Crane (but not the mast anchors). On 18 August 2006, prior to the erection of the Tower Crane, TJP submitted a Third Party Inspection Report to the MOM certifying that: (i) the critical parts of the Tower Crane had been checked for surface flaws; (ii) thickness gauging had been conducted at various points of the crane structure to ascertain the thickness of the metal used; and (iii) the Tower Crane was of sound material and was suitable for use. This Third Party Inspection Report had to be submitted together with the “USE OF TOWER CRANE SUBMISSION CHECKLIST” in Appendix 1 of the 2005 MOM Guidelines (“the Use of Tower Crane Checklist”) as the Tower Crane was more than eight years old (see cl 3.3 of the 2005 MOM Guidelines).

  23. (b) The second inspection was on 18 November 2006 after the Tower Crane had been erected at the Project Site. TJP conducted a load test on the Tower Crane, then signed a Lifting Equipment Certificate (prescribed in Appendix 5 of the 2005 MOM Guidelines) certifying that the Tower Crane: (i) had been examined thoroughly as far as construction permitted; (ii) complied in all respects with the requirements pertaining to lifting equipment as stipulated under the WSH Regulations; and (iii) was safe for use.

  24. (c) The third inspection was a further post-installation check on or around 20 November 2007. Thereafter, TJP signed a second Lifting Equipment Certificate to the same effect as the first (see the preceding sub-paragraph).

  25. The collapse of the Tower Crane

  26. [13] On 22 February 2008, the Tower Crane, after having been in use at the Project Site for more than a year, collapsed. Part of the jib landed outside the Project Site, hitting two trees, which in turn damaged a linkway, a bus stop sign and a few motorcycles parked in the vicinity. The counterweight of the Tower Crane landed on the roof of a substation, causing partial structural damage to it. Of the three workers killed in the collapse, two were in the Tower Crane’s cabin. Of these two, one was not an authorised crane operator.

  27. Investigations into the cause of the collapse

  28. [14] Matcor Technology & Services Pte Ltd (“Matcor”), a consultancy company providing services in forensic failure investigation, materials assessment and advanced NDTs, was commissioned by Kimly to investigate the general condition of the respective components of the Tower Crane and determine the presence of any cracks that might have existed prior to the collapse. Matcor was also commissioned by the MOM to investigate and report on the causes behind the Tower Crane’s collapse. Matcor prepared seven reports in total, three for Kimly and four for the MOM.

  29. [15] The three reports which Matcor prepared for Kimly were:

  30. (a) Report No M08258 on the NDTs done on the masts of the Tower Crane;

  31. (b) Report No M08259 on the NDTs done on the jibs, counter-jibs and A-frame of the Tower Crane; and

  32. (c) Report No M08260 analysing the cracked sections of the Tower Crane.

  33. [16] These three reports were exhibited in the affidavit of evidence-in-chief of David Tay, Kimly’s expert witness. Unfortunately, none of these reports addressed the primary cause of the Tower Crane’s collapse. Therefore, at the trial in the court below, Kimly relied instead on one of the reports which Matcor prepared for the MOM, viz, Report No M08163 (“Report 163 (MOM)”). This report observed the presence of pre-existing cracks in joint e of each of the four mast anchors and joint b of mast anchor #4. It also observed cracks and porosity in the columns of mast #1. (The cracks in the mast anchors and mast #1 will hereafter be collectively referred to as “the Pre-Existing Cracks”.) Report 163 (MOM), however, drew no conclusions as to the cause of the Tower Crane’s collapse. The Judge in fact held that this report “bore the appearance of a preliminary report before further testing was carried out” (see the Decision at [17]).

  34. [17] Rango also referred to another report prepared by Matcor for the MOM, viz, Report No M08209 (“Report 209 (MOM)”). This report stated in cl 3.0 (which was entitled “Discussion”):

  35. Report 209 (MOM) then went on to observe in the same clause:

  36. The proceedings below

  37. [18] Kimly brought an action against Rango for breach of the Sub-Contract, averring that the collapse of the Tower Crane was due to and/or caused by and/or contributed to by Rango’s breach of contract. Kimly averred that the presence of the Pre-Existing Cracks was the primary cause of the collapse.

  38. [19] Rango then brought in TJP as a third party, alleging breach of contract and negligence. Rango averred that TJP had breached his obligation to ensure that: (a) the Tower Crane would be of good, proper and/or satisfactory quality, reasonably fit for its purposes and/or safe for use; and (b) all necessary tests were carried out. In particular, the breaches alleged against TJP were the following:

  39. (a) The first and primary breach was said to be TJP’s failure to conduct NDTs on the mast anchors of the Tower Crane. Given that the alleged cause of the Tower Crane’s collapse was the Pre-Existing Cracks, Rango contended that if TJP had conducted NDTs on the mast anchors, he would have detected the Pre-Existing Cracks and could have avoided the collapse.

  40. (b) The second breach was said to be TJP’s complete failure to carry out the pre-erection inspection required under cl 7.2 of the 2005 MOM Guidelines. (Here, we should point out that under the 2005 MOM Guidelines, a third-party inspection of a tower crane, such as that done by TJP on 15 August 2006 (see sub-para (a) of [12] above), and the prescribed pre-erection inspection are “2 different inspections done at 2 different times”.)

  41. [20] Notably, neither Rango nor TJP alleged that the other had been contributorily negligent.

  42. [21] As mentioned earlier (at [3] above), TJP subsequently brought in Feng and FES as fourth parties.

  43. [22] The trial was heard over 11 days. At the close of Rango’s case, TJP, who was then represented by different counsel, indicated to the Judge that he wished to make a submission of “no case to answer” on the ground that Rango had not proved its case against him. While TJP accepted that a submission of “no case to answer” meant that he had to undertake not to call evidence against Rango, he asserted that he remained entitled to call evidence against Feng and FES should his submission be rejected. As all the other parties submitted otherwise, TJP sought a preliminary ruling from the Judge on the issue of whether he could proceed with his case against Feng and FES if his submission of “no case to answer” failed (“the Preliminary Issue”). He reserved his right to decide whether he would indeed make a submission of “no case to answer” after hearing the Judge’s ruling on this issue.

  44. [23] After hearing the parties’ arguments on the Preliminary Issue, the Judge ruled as follows (see the Decision at [55]):

  45. (a) TJP had the right to make a submission of “no case to answer”;

  46. (b) if TJP did indeed make this submission, he had to give an absolute undertaking not to call any evidence against any of the parties, and had to stand or fall by his submission;

  47. (c) if the court agreed with TJP’s submission of “no case to answer”, Rango’s claim against TJP would be dismissed;

  48. (d) if, however, the court disagreed with TJP’s submission, judgment would be entered for Rango against TJP (assuming judgment was given for Kimly against Rango); and

  49. (e) since TJP had to undertake not to call any evidence if he made a submission of “no case to answer” (see sub-para (b) above), should his submission fail, he could not proceed against Feng and FES and his claim against them would be dismissed accordingly.

  50. [24] The Judge gave TJP time to consider his ruling on the Preliminary Issue and make a decision as to whether or not to proceed to make a submission of “no case to answer”. TJP subsequently informed the Judge that he elected to make this submission on the terms set out by the Judge (see the Decision at [57]).

  51. [25] The Judge thereafter heard the parties’ closing submissions on the basis of TJP’s “no case to answer” submission. Feng and FES did not make any closing submissions because of TJP’s undertaking not to call any evidence against them.

  52. Parallel criminal proceedings

  53. [26] For the sake of completeness, it should be mentioned that the MOM has charged TJP with an offence under reg 21(15)(d) of the WSH Regulations read with reg 45 thereof for certifying that the Tower Crane was of sound material and suitable for use without having first tested the mast anchors. TJP has denied the offence and, at least at the time of the hearing before us, the prosecution was still ongoing. At the time of the hearing before us, Lee Tong Boon (the sole proprietor of Rango) was also being prosecuted by the MOM for breaching his duty under s 16(1)(b) of the WSHA in failing to ensure that the Tower Crane’s parts, including the mast anchors, were inspected and properly maintained prior to the erection of the Tower Crane.

  54. The decision below

  55. The cause of the Tower Crane’s collapse

  56. [27] The Judge accepted that the cause of the Tower Crane’s collapse was the presence of the Pre-Existing Cracks (see the Decision at [19]). He rejected, on the evidence, TJP’s argument that the collapse could have been due to the Tower Crane being operated by an unauthorised person, and that the Tower Crane could have been carrying some load at the material time (see the Decision at [20]).

  57. Liability as between Kimly and Rango

  58. [29] Kimly and Rango adopted the same position with regard to the cause of the Tower Crane’s collapse. Their expert witnesses agreed that the mast anchors had not been inspected or tested prior to the erection of the Tower Crane, and that it was TJP who was responsible for this lapse. This leads to the next issue of liability, ie, as between Rango and TJP.

  59. Liability as between Rango and TJP

  60. [30] As between Rango and TJP, the Judge found (at [45] of the Decision) that there was a case for TJP to answer as:

  61. The Judge then found that TJP was obliged to indemnify Rango in respect of its liability to Kimly. His reasoning was as follows. First, the Judge found that the evidence before him showed that the cause of the Tower Crane’s collapse was the Pre-Existing Cracks, and that TJP was liable for the failure to detect those cracks. Based on this evidence, there was a case for TJP to answer. Second, since TJP had given an undertaking not to call any evidence in (inter alia) his defence against Rango should his submission of “no case to answer” fail, the Judge found TJP liable to indemnify Rango in respect of its liability to Kimly. With respect, we do not follow this reasoning as the second finding by the Judge (vis-à-vis TJP’s liability to indemnify Rango) does not flow from the first finding (vis-à-vis TJP’s failure to detect the Pre-Existing Cracks). We observe that there was no legal analysis by the Judge as to why TJP was obliged to “indemnify” Rango, nor was there any examination as to the nature and content of this “indemnity”. In other words, the key issue of the legal basis of TJP’s alleged obligation to indemnify Rango was not considered by the Judge, who seemed to implicitly accept that an obligation on TJP’s part to indemnify Rango automatically sprung from TJP’s liability for the collapse of the Tower Crane, which collapse occurred due to TJP’s breach of his statutory duties as an AE.

  62. Liability as between TJP and Feng and FES

  63. [31] By virtue of TJP’s undertaking not to call any evidence against Feng and FES as well should his submission of “no case to answer” fail, the Judge dismissed his claim against them for an indemnity and/or contribution.

  64. The overall result

  65. The parties’ arguments on appeal

  66. [34] In the present appeal, TJP is challenging the Decision on four main grounds, viz:

  67. (a) the expert evidence was problematic on various grounds (and therefore presumably did not make out a prima facie case against TJP);

  68. (b) TJP owed no obligation to indemnify Rango in respect of its liability to Kimly;

  69. (c) the losses claimed by Kimly were too remote; and

  70. (d) the losses claimed by Kimly were not proved.

  71. [35] For the sake of clarity, we should mention that in the parties’ submissions for this appeal:

  72. (a) Kimly has responded to grounds (a), (c) and (d);

  73. (b) Rango has responded primarily to grounds (a) and (b), and has only commented briefly on grounds (c) and (d); and

  74. (c) Feng and FES have not addressed TJP’s objections to the Decision, and have simply submitted that the Judge was correct to find that TJP could not proceed against them in the court below because of his undertaking not to call any evidence against them should his submission of “no case to answer” fail.

  75. The issues before this court

  76. [36] As the parties raised many issues, both legal and factual, before this court, we should explain why, in our view, this appeal boils down to only one crucial issue. There are technically two broad issues that arise in this appeal, namely: (a) whether the Judge erred in finding that Rango had established a case for TJP to answer; and (b) assuming that the Judge was correct in so ruling, whether he erred in finding that TJP could not seek an indemnity and/or contribution from Feng and FES. However, issue (b) is not a live issue because TJP is not challenging this part of the Decision. In any case, since TJP explicitly gave an undertaking not to call any evidence against (inter alia) Feng and FES pursuant to the Judge’s ruling on the Preliminary Issue (which undertaking was given after TJP had had time to consider his course of action in the light of that ruling), it is clear that TJP has no basis to appeal as far as issue (b) is concerned. The only live issue before us is therefore issue (a), which comprises the following questions:

  77. (a) whether the evidence supports Rango’s case that had TJP inspected the mast anchors prior to the erection of the Tower Crane, the collapse of the Tower Crane could have been avoided (referred to hereafter as “the Factual Question”); and

  78. (b) whether TJP is under a legal obligation to indemnify Rango in respect of its liability to Kimly (referred to hereafter as “the Legal Question”).

  79. [37] It is important to note that because TJP made a submission of “no case to answer” in the court below, the threshold against which the above questions are to be assessed is that of whether a prima facie case has been established by Rango against TJP, and not that of whether a case against TJP has been established on a balance of probabilities. This is because a submission of “no case to answer” by a defendant succeeds if: (a) the plaintiff’s evidence, at face value, does not establish a case in law; or (b) the evidence led by the plaintiff is so unsatisfactory or unreliable that his burden of proof has not been discharged (see Bansal Hemant Govindprasad and another v Central Bank of India [2003] 2 SLR(R) 33).

  80. [38] Counsel canvassed both the Factual Question and the Legal Question before us, particularly the Factual Question. That question goes to a determination of the cause of the Tower Crane’s collapse, specifically, whether the cause was the Pre-Existing Cracks and whether TJP could have discovered those cracks by carrying out the necessary tests. With respect, we felt that counsel, in their enthusiasm to answer the Factual Question, neglected to adequately address the Legal Question, which, in our view, lies at the heart of this appeal. This is because even if all the evidential issues are resolved against TJP where the Factual Question is concerned, Rango’s case against TJP would still fail if there is no legal basis to find that TJP owes an obligation to indemnify Rango in respect of its liability to Kimly. This appeal therefore ultimately depends on one narrow question: taking Rango’s case at its highest, assuming that all factual disputes are resolved in its favour where the Factual Question is concerned, has Rango established a prima facie legal basis for TJP to indemnify it in respect of its liability to Kimly? In our view, Rango’s case, taken at its highest, merely proves that TJP breached his duties under the WSH Regime by failing to inspect the mast anchors before the erection of the Tower Crane. However, even if this is accepted, it is a separate and further question whether this breach of statutory duty by TJP as an AE necessarily results in his having a civil obligation to indemnify Rango in respect of its liability to Kimly. We will now explain why.

  81. Our decision

  82. Overview

  83. [39] Rango’s pleaded case against TJP, as set out in its statement of claim against the latter in the third-party proceedings (“Rango’s Statement of Claim against TJP”), rested on the following alternative legal bases:

  84. (a) “an express or implied contractual … right” to an indemnity from TJP in respect of its (Rango’s) liability to Kimly;

  85. (b) “other right” to such an indemnity; and

  86. (c) contribution under s 15 of the Civil Law Act (Cap 43, 1999 Rev Ed).

  87. Of these three alternative legal bases, Rango actively pursued only the first two at the trial. For the sake of completeness, we ought to also mention that in addition to the aforesaid legal grounds, Rango further included in its pleadings a claim for damages “under contract or alternatively under tort”, but likewise did not proceed with this head of claim at the trial.

  88. [40] TJP’s counsel in the present appeal rightly pointed out that the Judge did not state which of the above legal grounds formed the basis of his decision that TJP was under a civil obligation to indemnify Rango. Before us, it was s 15 of the Civil Law Act (“the s 15 ground”) that took centre stage, and it will therefore be the primary focus of this judgment. Indeed, the s 15 ground probably assumed primacy for good reason, viz – the other two grounds can be disposed of quite quickly, as we will explain before we turn to analyse the issues arising under the s 15 ground.

  89. [41] Before we embark on our analysis proper of the various legal grounds pleaded by Rango, it is useful to highlight the implications of Rango’s claim that it is entitled to be indemnified by TJP. An unhappy feature of this case is that because of the way in which the proceedings evolved during the trial, there were significant gaps in the facts established in the court below. Even assuming the Judge was right to find, on the evidence, that the Tower Crane’s collapse was caused by the Pre-Existing Cracks, it is far from clear how and why the Pre-Existing Cracks were present in the first place. The precise extent of liability which Rango should bear for the Tower Crane’s collapse is therefore correspondingly unclear. Only after querying counsel did we learn that there is no evidence on record as to the history of the Tower Crane’s prior usage before its installation at the Project Site; neither is there evidence as to when, during its previous usage, it had been inspected or certified and by whom. These are all obvious matters that ought to have been fleshed out in the course of the trial. Nevertheless, even though we do not know the exact details, on the evidence before us, we can be certain that the component parts of the Tower Crane, including the mast anchors, were not new and did have a history of prior usage. As mentioned at [26] above, we also have it on record that Lee Tong Boon (Rango’s sole proprietor) is, by Rango’s own admission, being prosecuted by the MOM for breaching his duty under s 16(1)(b) of the WSHA (s 16(1)(b) provides that a person who, inter alia, supplies any machinery for use at work is under a duty to ensure, so far as reasonably practicable, “that the machinery ... is safe, and without risk to health, when properly used”). Further, it is clear to us that TJP certainly was not responsible for the existence of the Pre-Existing Cracks – the wrong alleged on his part is his failure to detect the Pre-Existing Cracks, which were present because another party had failed in its responsibility to ensure that those defects ought not to have been there in the first place. The necessary wider implication of Rango’s claim to be entitled to an indemnity from TJP in this case (a point which may not have been appreciated by the Judge) is that regardless of what the primary cause of a defect in a tower crane is, once an AE breaches his statutory duty and fails to detect that defect, all legal liability for any damage resulting from that defect falls on the AE to the exclusion of any other party who might be responsible (whether partly or wholly) for the presence of that defect. On this analysis, the outcome reached in the court below is, tersely put, an astonishing result, particularly since the same outcome would occur even if the person claiming an indemnity from the AE is himself entirely responsible for the presence of the defect in question. We will bear this in mind as we examine the various legal bases pleaded by Rango in support of its claim against TJP.

  90. Express or implied contractual right to an indemnity

  91. [42] As mentioned at sub-para (a) of [39] above, the first legal basis pleaded by Rango in support of its claim against TJP was that of an express or implied contractual right to an indemnity from TJP in respect of its (Rango’s) liability to Kimly. It is undisputed that the oral contract between TJP and Rango contained no express obligation of indemnity. Any express contractual right to an indemnity can therefore be immediately dismissed. The only question is whether a term as to indemnity can be implied into this oral contract. We find that it cannot. It is trite that a term will be implied into a contract only if it is so necessary that all the contracting parties must have intended its inclusion in the contract. In the present case, as stated earlier (at [7] above), from the circumstances surrounding the conclusion of the oral contract between TJP and Rango, we find that neither party even remotely considered the issue of risk allocation between themselves and non-parties to their contract in the event that TJP was found wanting in the discharge of his professional obligations. It also cannot be said that TJP was privy to or “knew or ought to have known” [emphasis in original omitted] of Rango’s contract with Kimly (viz, the Sub-Contract), in particular, of Rango’s obligation to indemnify Kimly in respect of (inter alia) any damage suffered by Kimly. This was a significant part of Rango’s case in the court below, which does not seem to have been resurrected on appeal. In any case, as TJP’s counsel has rightly pointed out, this argument is tenuous because TJP was engaged by Rango nearly two weeks before Kimly and Rango executed the Sub-Contract, which included the term that imposed on Rango its obligation to indemnify Kimly. It would thus not be within the reasonable contemplation of TJP that he was assuming liability to indemnify Rango in respect of its liability to Kimly. We also observe that an obligation to indemnify is an onerous one, and the courts will be slow to imply such an obligation into a contract as it goes against commercial logic to have an implied term on indemnity without laying down properly defined parameters for the purported indemnity. While Rango pleaded an alternative claim for damages “under contract or alternatively under tort”, this claim was (as mentioned at [39] above) not pursued at the trial (nor in this appeal), and we thus see no need to address it in this judgment.

  92. “Other” right to an indemnity

  93. [43] Other than either an express or an implied contractual right to an indemnity from TJP, Rango also relied in the court below on a so-called equitable “assumed promise” to indemnify. To this end, Rango cited the Privy Council case of Eastern Shipping Company, Limited v Quah Beng Kee [1924] AC 177 (“Eastern Shipping”) and the (Singapore) High Court case of Hygeian Medical Supplies Pte Ltd v Tri-Star Rotary Screen Engraving Works Pte Ltd (Seng Wing Engineering Works Pte Ltd, third party) [1993] 2 SLR(R) 411 (“Hygeian”).

  94. [44] The principles for determining when an equitable “assumed promise” to indemnify may be found can be gleaned from a brief examination of the aforesaid authorities. Eastern Shipping recognised (at 182–183) that an obligation to indemnify, apart from arising from contract, could also arise from statute or from an equitable duty to indemnify stemming from “an assumed promise by a person to do that which, under the circumstances, he ought to do” [emphasis added] (see Eastern Shipping at 182). This equitable duty to indemnify may be found where the parties stand in a relationship of trustee and cestui que trust to each other (see Birmingham and District Land Company v London and North Western Railway Company (1887) 34 Ch 261 at 271). In such cases, the trustee may claim an indemnity from the cestui que trust, and vice versa (see Eastern Shipping at 182–184). The notion that such an equitable obligation can be imposed when one party stands in a fiduciary relationship to another was expanded in Checkpoint Fluidic Systems International Ltd v Marine Hub Pte Ltd and Another Appeal [2009] SGHC 134, which was an appeal to the High Court against a district judge’s finding that an equitable right to an indemnity had arisen in favour of the respondent against the appellant in view of the fact that the transaction in question had been entered into by the respondent for the appellant’s benefit. This finding was upheld by the High Court. While Hygeian neither cited Eastern Shipping nor explicitly mentioned the doctrine of the equitable “assumed promise” to indemnify, there is arguably implicit recognition of this doctrine in the finding in that case that the third party was to indemnify the defendant.

  95. [45] We find that both Eastern Shipping and Hygeian are readily distinguishable from the present case. In both of those cases, the third party’s acts were the primary – indeed, the only – cause of the respective defendants’ liability to the respective plaintiffs. In Eastern Shipping, it was the third party’s wrongful act in instructing a ship to berth at the plaintiff’s wharf that caused the defendant to be liable to the plaintiff. The defendant itself had not committed any wrongful act, and there was no other cause leading to the defendant being liable to the plaintiff. Similarly, in Hygeian, the defendant would not have been liable to the plaintiff but for the wrongful act of the third party, which caused the defendant’s premises to discharge water into the plaintiff’s premises and flood them. By contrast, it would be a stretch to say, in the present case, that TJP’s wrongful conduct was the sole reason for Rango being placed in a position of liability vis-à-vis Kimly, and that it is therefore necessary in equity to assume a promise on TJP’s part to indemnify Rango. TJP’s failure to detect the Pre-Existing Cracks is hardly analogous to the acts of the third parties in Eastern Shipping and Hygeian, especially since it is plausible that the Pre-Existing Cracks may have been the consequences of Rango’s own wrongful acts or omissions. Further, another distinguishing factor in Eastern Shipping is that the third party in that case stood in a fiduciary relationship to the defendant who incurred liability to the plaintiff as a result of the third party’s actions (see Eastern Shipping at 183). While the third party in Eastern Shipping was not a trustee in the full sense of the word, he was a trustee of his powers such that he stood in a fiduciary relationship to the defendant in respect of his exercise of those powers. As noted in the preceding paragraph, the presence of a fiduciary relationship is one of the touchstones for the imposition of an equitable “assumed promise” to indemnify. This feature is missing in the present case as it is difficult to see how TJP can be said to be in a fiduciary relationship vis-à-vis Rango.

  96. Section 15 of the Civil Law Act

  97. [46] We now turn to the s 15 ground, which is the mainstay of Rango’s attempt to uphold the Judge’s decision that it is entitled to be indemnified by TJP in respect of its liability to Kimly. Section 15(1) of the Civil Law Act states:

  98. (1) The legislative backdrop

  99. [47] In interpreting s 15(1) of the Civil Law Act, we will consider the mischief that this section is intended to cure. In this regard, it is helpful to examine the legislative history of s 1(1) of the Civil Liability (Contribution) Act 1978 (c 47) (UK) (“the 1978 UK Act”), upon which s 15(1) of our Civil Law Act (referred to hereafter as “our s 15(1)” where appropriate to the context) is based. Section 1(1) of the 1978 UK Act provides:

  100. As can be seen, this provision is in pari materia with our s 15(1).

  101. [48] In the House of Lords case of Royal Brompton Hospital NHS Trust v Hammond and others (Taylor Woodrow Construction (Holdings) Ltd, Part 20 defendant) [2002] 1 WLR 1397 (“Royal Brompton”), Lord Bingham of Cornhill discussed the legislative history of s 1(1) of the 1978 UK Act. He noted (at [3]) that the Law Revision Committee, in its Third Interim Report (Cmd 4637) of July 1934, had addressed the difficulty faced by one tortfeasor in getting contribution from the other tortfeasor(s) at common law. Lord Bingham then went on to note:

  102. (2) The crucial question

  103. [49] From this brief examination of the legislative developments which gave rise to s 1(1) of the 1978 UK Act, it is clear that the essence of that provision (and correspondingly, our s 15(1)) is whether the person from whom contribution is sought and the person claiming contribution are liable in respect of “the same damage”. The relevant test for deciding whether TJP and Rango are liable for “the same damage” in the present case is the three-step test established in Royal Brompton at [6], which may, for our purposes, be stated as follows:

  104. (a) What damage was suffered by Kimly as a result of the Tower Crane’s collapse?

  105. (b) Is Rango liable to Kimly in respect of that damage?

  106. (c) Is TJP also liable to Kimly in respect of that very “same damage” or some of it?

  107. In order words, for the s 15 ground to be made out, it must be established that TJP was liable not only to Rango (whether in tort or in contract) for the damage caused by the Tower Crane’s collapse, but also to Kimly for that same damage, ie, Rango needs to show that TJP directly owed Kimly a duty of care at common law.

  108. [50] The crucial question (“the Crucial Question”), therefore, is whether an AE, in the discharge of his statutory duties vis-à-vis the use of a tower crane at a factory and/or worksite (referred to hereafter as a “workplace” for short), owes a duty of care at common law to the main contractor who will ultimately be using the tower crane (in this case, Kimly), even though the AE is engaged not by the main contractor but by the sub-contractor renting out the tower crane to the main contractor (in this case, Rango). After the hearing before us on 7 July 2011, we reserved judgment and directed the parties to file:

  109. (a) any information and/or materials available in the record of proceedings and/or in the public record on the background and/or policy of the 2005 MOM Guidelines; and

  110. (b) authorities showing how the courts have construed the duty of care imposed on inspectors in positions analogous to the position of the AE under the WSH Regime.

  111. The parties submitted the aforesaid materials and their further submissions on these materials on and around 4 August 2011. We turn now to consider the Crucial Question in the light of these materials and submissions.

  112. (3) The general test for imposing a common law duty of care

  113. [51] As this court stated in Animal Concerns Research & Education Society v Tan Boon Kwee [2011] 2 SLR 146 (“Animal Concerns”) at [22]:

  114. [52] Rather, to establish a common law duty of care, the general test set out in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”) must be fulfilled. This test (“the Spandeck test”) comprises two limbs (see Spandeck at [73] and Animal Concerns at [29]). First, it must be shown that there is “sufficient legal proximity between the claimant and [the] defendant for a duty of care to arise” [emphasis in original] (see Spandeck at [77]). If such a relationship of proximity is established, a prima facie duty of care arises. Second, the court will then apply policy considerations to the factual matrix of the particular case at hand to determine whether the prima facie duty of care is negated (see Spandeck at [83]). In this regard, there must be no policy considerations which negate, reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages recoverable for a breach of that duty.

  115. [53] Under the first limb of the Spandeck test, one of the many factors taken into consideration is the existence of a statutory duty. However, as amply clarified in Animal Concerns, the mere existence of a statutory duty owed by the defendant to the relevant authorities is not in itself conclusive in establishing that the defendant owes a common law duty of care to the plaintiff. As for the second limb of the Spandeck test, one important policy consideration that the courts will evaluate in determining whether a particular statutory duty gives rise to a concomitant common law duty of care is that the imposition of the alleged common law duty of care should not be inconsistent with the statutory scheme concerned and the statutory duties owed under that scheme (see Harris v Evans and Another [1998] 1 WLR 1285 at 1297, applying X (Minors) v Bedfordshire County Council [1995] 2 AC 633).

  116. [54] Several general principles inform the law in this area. First, the party seeking to establish that a private right of action exists for a breach of statutory duty must show that Parliament, in imposing the statutory duty in question to protect the members of a class, intended those members to have such a right of action. Here, it must also be borne in mind that such right is not immediately established just because a statute is intended to protect a particular class of persons. Ordinarily, something more is required to demonstrate a statutory intention to confer a private right of action. In matters where the statute’s objective is to protect the public in general, exceptionally clear language will be required before an intention to confer a private remedy for a breach of statutory duty can be established. Second, a concurrent common law duty of care may be found alongside a statutory duty imposed by subsidiary legislation provided there are clear indications that the primary legislation contemplates the creation of such a common law duty. Third, while the existence of a statutory remedy for a breach of statutory duty is relevant and may suggest the absence of a private right of action for such breach, it is not in itself decisive (see Charlesworth & Percy on Negligence (Christopher Walton gen ed) (Sweet & Maxwell, 12th Ed, 2010) at paras 12-43–12-44). Similarly, the existence of a statutory sanction for a breach of statutory duty neither necessarily nor conclusively indicates that the Legislature intended to preclude a private right of action for such breach (see, eg, Animal Concerns at [81]). Fourth, we caution that in this complex area of the law, formulas are not helpful. While the general principles stated here may help in terms of setting out relevant factors for consideration, they are mere guidelines and will not yield answers as to whether a common law duty of care exists alongside a statutory duty in a particular case. The variety of statutory duties and the different objects which different statutes are directed at make it impossible to have a universal formula. Each statute will have to be considered contextually, and precedents will illuminate only infrequently the right legal path to be taken. Fifth, we emphasise that the underlying statutory scheme and the parliamentary intention behind the enactment of that scheme are not controlling factors in determining whether an alleged common law duty of care exists concurrently with a statutory duty, but rather go towards negating the alleged common law duty of care (ie, these factors are considered under the second limb of the Spandeck test, rather than under the first limb).

  117. [55] Turning to the factual matrix before us, to determine whether TJP owed a common law duty of care to Kimly, it is important to first establish what exactly the office of the AE entails. We are aware that our decision on the existence or otherwise of concurrent civil liability is a point of significance that goes far beyond the instant case, with implications across the WSH Regime. We will thus consider the issue framed in broader terms, specifically, in the form of the Crucial Question as defined at [50] above. In essence, this question requires us to determine whether an AE, in the discharge of his statutory functions, owes a common law duty of care to a person to whom he owes no contractual obligation. As the office of the AE is purely a statutory creation under the WSH Regime, we will need to decide whether the imposition of such a common law duty of care is consistent with the statutory scheme.

  118. (4) The office of the AE under the WSH Regime

  119. [56] Pursuant to s 7(3) of the WSHA, the Commissioner for Workplace Safety and Health (“the Commissioner”) may appoint “such number of persons as inspectors, and such number of other persons as authorised officers, as may be necessary to assist the Commissioner in the administration of [the WSHA]”. Section 8 of the WSHA provides (inter alia) that every inspector and authorised officer appointed under s 7 shall be deemed to be a public servant within the meaning of the Penal Code (Cap 224, 2008 Rev Ed). The specific office of the AE is first mentioned in s 32 of the WSHA under Pt VII (which is headed “Safety and Health Management Arrangements”). Section 32 provides that no person shall act as (inter alia) an AE without the approval of the Commissioner:

  120. [57] Sections 33, 34 and 35 of the WSHA set out, respectively, the application process for obtaining the Commissioner’s approval to act as an “authorised person” (which expression includes an AE), the duration of such approval and the grounds upon which the Commissioner may suspend or cancel such approval. Acting as an AE without the approval of the Commissioner is an offence punishable by a fine not exceeding $5,000 or imprisonment for a term not exceeding six months or both (see s 38 of the WSHA).

  121. [58] The WSHA itself does not precisely spell out the duties of an AE. These duties are instead fleshed out under the WSH Regulations and the 2005 MOM Guidelines. Regulation 21(15) of the WSH Regulations provides as follows:

  122. [59] An examination of the WSH Regime reveals that the office of the AE is an integral component of the statutory framework. Under reg 21(1) of the WSH Regulations, no lifting appliance or lifting machine (which includes a tower crane) shall be used unless an AE has both: (a) tested and examined it; and (b) issued and signed a certificate of test and examination specifying its safe working load. If the lifting appliance or lifting machine in question has not been so examined and tested, the Commissioner may serve a remedial order or a stop-work order under s 21 of the WSHA.

  123. [60] Before the MOM will grant approval for the use of a tower crane at a workplace, the Use of Tower Crane Checklist (see sub-para (a) of [12] above) must be filled in and submitted with eight other documents to the MOM’s Occupational Safety Department at least 30 days ahead of the proposed installation date. At this stage, the AE is involved in the preparation of two of the eight documents that must be submitted to the MOM, viz, the Third Party Inspection Report (required only in cases where cll 3.1–3.3 of the 2005 MOM Guidelines apply), and layout plans showing the zones of influence and affected areas. If the submission is in order, the MOM will then endorse and return a copy of the layout plan to the occupier or owner of the workplace (“the occupier/owner”). Upon this endorsement, the occupier/owner must again engage an AE to check the parts of the tower crane according to the MOM’s “Checklist for Inspection & Testing of Tower Crane” (provided in Appendix 6 of the 2005 MOM Guidelines)before erecting the tower crane (referred to hereafter as “the Pre-Erection Inspection”). The AE must also test the tower crane another time after it has been erected (referred to hereafter as “the Post-Erection Inspection”).

  124. [61] The scope of the AE’s statutory duties vis-à-vis the use of a tower crane at a workplace can therefore be seen to span three distinct stages, namely: (a) the stage where the occupier/owner applies for the MOM’s approval to use the tower crane on the basis of the Use of Tower Crane Checklist and its accompanying documents; (b) the Pre-Erection Inspection stage; and (c) the Post-Erection Inspection stage. Therefore, in so far as TJP argues that the statutory purpose behind an AE’s duties is merely to “give assurance to [the] MOM that approval [can] be granted for the installation of the [t]ower [c]rane”, this is plainly wrong because this touches on only the first of the three stages of an AE’s statutory duties. The AE’s statutory duties are much broader than that. That said, the breadth of these duties is not an indicator of the coexistence of a private claim in the event of a breach by an AE of his statutory duties. Therefore, we must examine what the WSH Regime has to say about the existence of a concurrent private claim for a breach of statutory duty.

  125. (5) Statutory materials on the existence (or otherwise) of a concurrent civil claim for a breach of statutory duty under the WSH Regime

  126. [62] According to TJP, the WSHA contemplates that an AE owes no civil liability for a breach of any of his statutory duties under the WSH Regime. In support of this argument, TJP relies on s 60 of the WSHA, which provides as follows:

  127. [63] While s 60(1)(a) of the WSHA provides that the WSHA does not confer any right of action in civil proceedings, s 60(1)(b) provides (inter alia) that the WSHA also does not affect any (independent or pre-existing) right of action in civil proceedings. In other words, s 60 of the WSHA neither confers nor takes away any right to bring a private claim in respect of a breach of statutory duty under the WSH Regime. More importantly for present purposes, s 60 does not answer the question of whether there is an independent or a pre-existing private right of action for such a breach. As noted above at [53], under the Spandeck test, it is clear that the mere fact that a particular statutory duty exists does not suffice to give rise to a common law duty of care founded on that statutory duty. Indeed, the statutory scheme may provide compelling policy reasons to negate such a common law duty of care. In the present case, however, we find that s 60 of the WSHA does not in itself provide compelling policy reasons to negate a common law duty of care on the part of an AE, if such duty does exist.

  128. [64] We now turn our attention to s 61 of the WSHA, which protects certain officers under the WSH Regime against personal liability in certain prescribed circumstances. Section 61 states:

  129. [65] Section 61 does not apply in the instant case because TJP’s alleged personal liability is not in respect of physical damage done to an item in the course of carrying out a prescribed examination. TJP is therefore not protected by s 61 against personal liability in this case. We should add that we do not think s 61 implies that personal liability is excluded only in the instances enumerated in that section. Instead, it seems to us that the specific instances where personal liability has been expressly negated by s 61 were inserted ex abundanti cautela to protect those involved in the statutory inspection scheme from liability for any physical damage caused in the course of carrying out a prescribed inspection. Surely, it cannot be argued that economic loss caused by (eg) delays by an AE in carrying out a prescribed inspection is actionable because liability for such loss has not been expressly excluded. In short, we do not think that s 61 is a statutory indicator of whether an AE may be subject to a private claim for a breach of any of his statutory duties. Section 61 is wholly neutral on this issue. Therefore, we find that nothing in the WSH Regime itself supports either the imposition or the negation of a concurrent common law duty on the part of an AE.

  130. [66] Although the WSH Regime is itself silent on the aforesaid matter, the parliamentary statements on the WSH Regime are illuminating. During the second reading of the Workplace Safety and Health Bill 2005 (Bill 36 of 2005) (“the WSH Bill”), Dr Ng Eng Hen (“Dr Ng”), the then Minister for Manpower, stated as follows (see Singapore Parliamentary Debates, Official Report (17 January 2006) vol 80 (“Singapore Parliamentary Debates vol 80”) at cols 2206 and 2208–2210):

  131. [67] We also note the Explanatory Statement to the WSH Bill, which reads as follows:

  132. [68] In our view, the above statements make it clear that the objective of the WSH Bill (which was later enacted as the Workplace Safety and Health Act 2006 (Act 7 of 2006)) was to protect workers and members of the public present at a workplace from injury by deterring risk-taking behaviour (through the imposition of liability for such behaviour) on the part of persons who create and have control over safety risks at workplaces. To achieve this objective, a “more direct liability regime” (see Singapore Parliamentary Debates vol 80 at col 2209) was put in place under Pt IV of the WSH Bill to hold various groups of persons accountable for workers’ safety and health according to their different capacities. We observe that while an AE does not fall under any of the categories of persons enumerated in Pt IV of the WSH Bill, a main contractor and a sub-contractor may fall under one or more of those categories (eg, as an employer under cl 12 of the WSH Bill, or as a manufacturer and supplier of machinery under cl 16). The structure of the WSH Bill suggests that the liability of an AE under the WSH Regime is secondary to that of the persons specifically mentioned in Pt IV of the WSH Bill (inter alia, contractors and sub-contractors). Indeed, the specific office of the AE is first mentioned only in Pt VII of the WSH Bill (specifically, in cl 32; in this regard, see also [56] above), and the WSH Bill does not spell out the duties and liabilities of an AE (these were set out only later via the 2005 MOM Guidelines and the WSH Regulations). The Explanatory Statement to the WSH Bill confirms that this Bill had several purposes, with the office of the AE fulfilling a different purpose from that of imposing liability on the persons enumerated in Pt IV of the WSH Bill. Had the office of the AE been mentioned under Pt IV, this would have made for a stronger argument for the imposition of a common law duty of care on an AE. Further, in assessing whether a common law duty of care coexists alongside an AE’s statutory duties, it is not an unimportant consideration that all of the AE’s statutory obligations have been set out in subsidiary legislation (see [58] above), supplemented by the 2005 MOM Guidelines, with a regime of criminal enforcement in place to remedy any breaches of these statutory duties (see [57] and also [54] above). We will further elaborate on the significance of this distinction between AEs on the one hand and contractors and sub-contractors on the other later at [73] below.

  133. (6) Analysis of the Crucial Question

  134. [69] We set out earlier the three distinct inspections of the Tower Crane which TJP carried out in this case (see [12] above) and the breaches alleged against him (see [19] above). Even if TJP is found to have breached his statutory duties, as we pointed out above at [51]–[52], a statutory duty imposes a concomitant duty of care at common law only if the two limbs of the Spandeck test are satisfied, viz:

  135. (a) if there is a relationship of sufficient legal proximity between the parties concerned; and

  136. (b) (assuming the requisite relationship of proximity exists) if there are no policy considerations which negate, reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages recoverable for a breach of that duty.

  137. [70] Pursuant to our direction of 7 July 2011 for the parties to submit on (inter alia) cases involving statutory duties analogous to those of an AE (see sub-para (b) of [50] above), TJP has submitted that on the basis of Caparo Industries Plc v Dickman and Others [1990] 2 AC 605 (“Caparo”) and Ikumene Singapore Pte Ltd and another v Leong Chee Leng (trading as Elizabeth Leong & Co) [1993] 2 SLR(R) 480 (“Ikumene”), he owes no common law duty of care in discharging his statutory duties as an AE. Rango has submitted to the contrary based on four cases, namely: Swanson et al v The Queen in right of Canada (1991) 80 DLR (4th) 741 (“Swanson”), Perrett v Collins and Others [1998] 2 Lloyd’s Rep 255 (“Perrett”), Anns and Others v Merton London Borough Council [1978] AC 728 and Welton and Another v North Cornwall District Council [1997] 1 WLR 570.

  138. [71] At one end of the tortious spectrum of liability, Caparo and Ikumene demonstrate that the courts have in some cases declined to impose a common law duty of care where liability may be indeterminate. In Caparo, the plaintiffs relied on the defendant auditors’ report on a public listed company’s accounts (which report was required under ss 236 and 237 of the Companies Act 1985 (c 6) (UK) (“the UK Companies Act”)) to make a takeover bid for the company. The plaintiffs subsequently sued (inter alia) the auditors for negligence in making the report. The House of Lords declined to impose a common law duty of care on the auditors in respect of their statutory duty to make the report. Their Lordships held that while it was reasonably foreseeable that the accounts of a public listed company might be relied upon by a range of persons for a number of purposes, an auditors’ report on such accounts was required by the UK Companies Act for a specific statutory purpose (see Caparo at 652D), and to find that a public listed company’s auditors owed a common law duty of care towards persons relying on their report on the company’s accounts outside its statutory purpose would be to “create a liability wholly indefinite in area, duration and amount and … open up a limitless vista of uninsurable risk for the professional man” [emphasis added] (see Caparo at 643C–643D). By a process of similar reasoning, in Ikumene, this court declined to impose a common law duty of care on a company’s auditor vis-à-vis a guarantor of the company’s credit facilities on the basis that the imposition of such a duty of care would fall outside the statutory purpose for which an auditor’s report on a company’s accounts was required (see Ikumene at [24]).

  139. [72] In our view, Caparo and Ikumene can reasonably bear one of two interpretations, which correspond to, respectively, the two limbs of the Spandeck test. It can be said that no common law duty of care was found to exist in these two cases: (a) on the basis of a lack of sufficient legal proximity (ie, there was insufficient legal proximity between the statutory actors and the plaintiffs, who were individuals falling outside the class of people protected by the relevant statutory purpose); or (b) on the basis of policy (ie, the courts declined to impose a common law duty of care that would expose the statutory actors to indeterminate liability). Indeed, some commentators have expressed the view that policy considerations are built into the element of proximity (see, eg, W V H Rogers, Winfield and Jolowicz on Tort (Sweet & Maxwell, 18th Ed, 2010) at para 5-17). In Caparo itself, Lord Oliver of Aylmerton opined (at 633C) that a finding of an absence of proximity “[could] most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible”. The same sentiment was echoed by Lord Nicholls of Birkenhead in the House of Lords case of Stovin v Wise, Norfolk County Council (Third Party) [1996] AC 923, where his Lordship expressed the view (at 932B–932C) that the concept of proximity was “convenient shorthand for a relationship between two parties which [made] it fair and reasonable [that] one should owe the other a duty of care”. As can be seen, there is an established view that the elements of the Spandeck test are inter-related and overlapping. The effect of this is that factors which are relevant to one limb of the Spandeck test may also be relevant to the other limb in the conduct of the balancing exercise to determine whether a duty of care should be imposed at common law (see Clerk & Lindsell on Torts (Michael A Jones gen ed) (Sweet & Maxwell, 20th Ed, 2010) at para 8-15). This is uncontroversial, and, as indicated earlier at [53] above, the applicable statutory scheme, in particular, may be relevant to both limbs (ie, both the proximity and the policy limbs) of the Spandeck test.

  140. [73] Regardless of which of the two interpretations of Caparo and Ikumene we adopt, we find that the concerns which were determinative in those two cases also apply in our case. In so far as the first interpretation (viz, insufficient legal proximity) is adopted, we find that an argument based on a lack of sufficient legal proximity succeeds in the present case. It is clear, in our view, that while the office of the AE is an integral part of the WSH Regime’s overall statutory purpose of ensuring workplace safety (see [56]–[61] above), the statutory objective is not to protect contractors and/or sub-contractors as they have primary responsibility for all aspects of safety at a workplace. Indeed, Dr Ng’s statements in Parliament during the second reading of the WSH Bill (see above at [66]) suggest that the objective of the WSH Regime is to guard against safety lapses at workplaces by contractors and those to whom they have delegated operational control of their work. In our view, the office of the AE is designed as a safety net, as an additional layer of protection to catch any safety hazards present in tower cranes used at workplaces that may have slipped past the notice of contractors and/or that may arise if contractors cut corners. The creation of this office amounts to statutory recognition that there may be occasions where safety lapses by contractors and/or their sub-contractors occur, and is designed to protect those working or present at workplaces from injury caused by such lapses. As such, the office of the AE is not intended to protect either the contractor and/or the sub-contractor from risk, but is instead intended to protect workers and members of the public present at workplaces. Therefore, Kimly, as the ultimate user of the Tower Crane and the occupier of the Project Site, is clearly not within the class of people intended to be protected by the statutory purpose behind an AE’s duties. In other words, the first limb of the Spandeck test is not satisfied in the present case and, thus, TJP did not owe Kimly any prima facie duty of care at common law.

  141. [74] We should add that a striking feature of the instant case is that contributory negligence was not pleaded as between Rango and TJP (see [20] above), and a finding that TJP owed a common law duty of care to Kimly would produce the extraordinary result of TJP being liable for the entire damage ensuing from the collapse of the Tower Crane regardless of whether or not he was responsible for the cause of the collapse (see above at [41]). Such a result goes against the spirit, if not the letter, of the WSHA and also against common sense. Nothing in the WSHA contemplates the apportionment of liability, not to mention the imposition of a common law duty of care, between the various persons on whom statutory duties are imposed under Pt IV of the WSHA. Section 10 of the WSHA (which falls under that Part) expressly provides that the same duty or liability can be imposed on two or more persons, and that the duty or liability imposed on a person will not be diminished or affected simply because it is concurrently imposed on another person. Of course, this position is with regard to the persons who owe statutory duties under Pt IV of the WSHA, and, as we alluded to earlier (at [68] above), an AE is not one of the persons enumerated in that Part. Be that as it may, we find that Pt IV of the WSHA stands for the broader proposition that under the WSH Regime, persons who create or have control over safety risks at workplaces will not be allowed to shelter behind each other or others to avoid liability when those risks materialise. This does not, however, exclude the possibility that in appropriate cases, persons who are individually liable for breaching their statutory duties under the WSHA may also be found to have been contributorily negligent towards each other.

  142. [75] Assuming, for argument’s sake, that there is a relationship of sufficient legal proximity between TJP and Kimly (contra our finding at [73] above), we now go on to discuss the second limb of the Spandeck test, which corresponds to the second interpretation of Caparo and Ikumene, viz, that no common law duty of care was found in those two cases because of policy reasons (see above at [72]). In so far as the second interpretation is concerned, we find that there could plausibly be what may be broadly described as indeterminate liability to an indeterminate class in the present case if the Crucial Question is answered in Rango’s favour. While an AE’s statutory duties are specific to the installation of a particular tower crane at a particular workplace for a particular period of time, in the event of a breach of these duties, the cascading effects of consequential economic loss can be enormous, particularly if there are work stoppages. All affected parties as well as their suppliers and other actors further down the chain may have some sort of consequential claim against an AE for his statutory lapse(s) if a private cause of action were coexistent. That said, we recognise that the fear of indeterminacy is not the key policy consideration in the present case as this concern might be better addressed at the stage of assessing remoteness of damage. Even so, for the reasons given below (at [84]–[89]), we find that the second limb of the Spandeck test is not satisfied in the present case as there are other policy factors which militate against finding that TJP owed a common law duty of care to Kimly.

  143. [76] Before we set out these policy factors, we wish to first discuss two of the cases cited by Rango, viz, Swanson and Perrett, both of which lie at the other end of the spectrum of tortious liability from Caparo and Ikumene. In both Swanson and Perrett, a common law duty of care was quite readily imposed. Both cases involved airplane crashes which were the result of the negligence of the relevant statutory inspectors in failing to prevent certain flight operations. In Swanson, the estates of the deceased passengers sued (inter alia) the relevant government agency which, through its inspectors, had allowed the flight operations of a small commercial airline to continue despite the presence of many safety irregularities. In Perrett, an injured passenger sued, inter alia, the inspector who had negligently provided a certificate of fitness for the airplane in question to fly. In both cases, the courts quite easily found that the inspector (in Perrett) and the Department of Transport (the relevant government agency in Swanson) owed a duty of care to the passengers of the respective airplanes. In particular, in Swanson, the Canadian Federal Court of Appeal expressed its agreement with the trial judge’s ruling that (see Swanson at 750):

  144. [77] Similar reasoning was echoed by the English Court of Appeal in Perrett (at 272) as follows:

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