Neighbour loses claim against neighbour over damage

Demolition during works on Mr Munib's house (in the rear) resulted in debris hitting Mr Ng's house (in front). Mr Ng took his neighbour and the contractor - Esthetix - to court, but was awarded damages only against the contractor.
Demolition during works on Mr Munib's house (in the rear) resulted in debris hitting Mr Ng's house (in front). Mr Ng took his neighbour and the contractor - Esthetix - to court, but was awarded damages only against the contractor.PHOTO: TIFFANY GOH FOR THE STRAITS TIMES

Landowners cannot be expected to look over contractors' shoulders, says judge

A house owner who hired a contractor to rebuild his unit was held not liable when demolition works damaged a neighbour's house.

The High Court rejected a move to make the owner liable in addition to the contractor, making clear that property owners cannot be expected to supervise what contractors do, as a matter of policy.

"It would be intolerable if the law were to hold that all landowners who seek to construct homes on their property would have a duty to look continually over the shoulders of the independent contractors they hire to ensure that they take reasonable care in the performance of their tasks," said Judicial Comissioner See Kee Oon in judgment grounds released yesterday.

The case arose after demolition works by contractor Esthetix Design on a three-storey unit in Jalan Lim Tai See in September 2011.

Owner Munib Mohammed Madni had hired Esthetix to turn the existing house into a three-storey detached structure with a basement and swimming pool.

Debris from demolition works hit a boundary wall of neighbour Ng Huat Seng's house, which is in front and down a slope.

Some debris also hit his house, breaking window panes, damaging four air-con condenser units and cracking the backyard, among other things.

Mr Ng sued both Mr Munib and Esthetix for negligence in the State Courts where he won $136,796 and costs against Esthertix last year.

District Judge Seah Chi Ling found Mr Munib and his wife Zahrah Ayub not liable in negligence as they had exercised reasonable care in outsourcing work to Esthetix.

Mr Ng appealed to the High Court against this decision at a two-day hearing earlier this year.

His lawyers, Senior Counsel N. Sreenivasan and Mr Tan Cheow Hin, argued Esthetix was not an independent contractor, which meant Mr Munib was indirectly liable as his employer. They argued the work was "ultra-hazardous", which meant the duty of care could not be delegated from the house owners to the contractor.

Mr Munib, represented by lawyers Raymond Wong and Os Agarwal, argued the works were not "ultra-hazardous" and Esthetix was to be treated as an independent contractor that the owners had taken reasonable care in hiring.

The judge ruled Mr Munib was not indirectly liable. He found Esthetix was an independent contractor as it took out its own insurance, hired its own staff and dealt with various sub-contractors and consultants in its own name.

He noted this was the first case where the so-called "ultra-hazardous" exception was considered at length and appointed lawyer Keith Han to assist the court as amicus curiae, or friend of the court.

Despite the demolition being done close to Mr Ng's house and the relative elevations of the two houses, this did not mean the demolition was "a dangerous operation in its intrinsic nature", he added.

The judge added that the Court of Appeal may some day decide that the doctrine of ultra-hazardous acts "no longer has a place in our law and will instead deal with such cases by applying the general principles of the law of negligence".

Mr Ng's lawyers are seeking permission to appeal to the apex court.

A version of this article appeared in the print edition of The Straits Times on June 28, 2016, with the headline 'Neighbour loses claim against neighbour over damage'. Print Edition | Subscribe