You are on page 1of 13

A2

IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE

Civil Appeal No. 69 of 20__/H


Between

SAN HAI FA
(NRIC 02948567C)
…. Appellant

And

1. ESTATE OF CHUA BEE LIAN


(NRIC 00092785L)
2. LIM CHOO
(NRIC 02987465T)
… Respondents

APPELLANT’S CASE

Solicitors for the Appellant Solicitors for the Respondents


LAW FIRM ABC LAW FIRM XYZ

DATE

Number of Words: 2997


TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................... 1

II. CIRCUMSTANCES OUT OF WHICH APPEAL ARISES ............................... 1

A. Background facts ............................................................................................. 2

III. ISSUES ARISING IN THIS APPEAL .................................................................. 3

A. On the cause of action under the rule in Rylands v. Fletcher: ..................... 3

B. On the cause of action under s. 20 of the Civil Law Act: .............................. 4

IV. THE APPELLANTS’ CONTENTIONS ............................................................... 5

A. The Respondents’ claims should have been struck out as stating


no reasonable cause of action because the rule in Rylands v. Fletcher
does not allow recovery for personal injuries ....................................................... 5

1. The rule in Rylands v. Fletcher (1868), L.R. 3 H.L. 330


[Rylands] should be abolished because the strict liability it
imposes on users of dangerous goods conflicts with the fault-
based liability under negligence law that normally governs
any use of dangerous goods ..................................................................... 5

2. Even if the Rylands rule is not abolished, it does not allow


personal injury claims ............................................................................. 7

V. CONCLUSION ...................................................................................................... 10
APPELLANTS’ CASE
REFERENCE
TO JUDGMENT
A (“J”) OR
APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)
I. INTRODUCTION
B
1. This is an appeal against the decision of the Honourable Justice
Tan King Choo (“the learned Judge”) made on 5 February 2009.
The learned Judge dismissed the Appellant’s application to strike
out the Respondents’ claims, for (i) strict liability under the rule in
C
Rylands v. Fletcher (1868), L.R. 3 H.L. 330 and (ii) wrongful
death under the Civil Law Act (Cap. 43, 1999 Rev. Ed. Sing.) s. 20,
as stating no reasonable cause of action.

D II. CIRCUMSTANCES OUT OF WHICH APPEAL ARISES

2. The Respondents have no reasonable cause of action under the rule


in Rylands v. Fletcher because the rule does not allow recovery for
personal injuries. In any case, the second Respondent Lim Choo
E (“Lim”) will still have no reasonable cause of action under s. 20 of
the Civil Law Act because she does not fall within the categories
of legally-recognised dependants.

F 3. The rule in Rylands v. Fletcher imposes liability on a user of


dangerous goods who has made “non-natural use” of land and who
has failed to prevent “escape” of the dangerous goods, even if the
user has taken reasonable care in using the goods such that the
failure to prevent “escape” is not due to any fault of his, and
G
notwithstanding the fact that use of those goods often brings utility
to society. In so imposing strict liability, the rule conflicts with the
system of fault-based liability under the tort of negligence that
normally governs any use of dangerous goods, undermining clarity
2 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)
in the law pertaining to the use of dangerous goods and creating
A
unfairness to the defendant. Thus, if the rule in Rylands v. Fletcher
is to be preserved at all, it should be subsumed under the land-
based tort private nuisance in accordance with its own “essential
nature and purpose” as a land-based tort, and so subjected to the
B restrictions that attend private nuisance, one of which restrictions
is the disallowing of recovery for personal injury claims.

4. DELETED – NOT NEC. FOR EXERCISE

C
5. As such, this court should strike out the Respondents’ claim for (i)
strict liability under the rule in Rylands v. Fletcher and (ii)
wrongful death under s. 20 of the Civil Law Act, as stating no
reasonable cause of action.
D

A. Background facts

6. The Appellant, San Hai Fa (“San”), is a local eco-artist. She


E requires space on which to create her internationally-celebrated art
pieces, and owns a property in Singapore’s Kranji District for this
purpose.

F 7. In November 2008, she was engaged in building sculptures on her


property that incorporated, among other artistic elements, paint. In
order to create the best art she could, she sought to enhance the
brilliance of colour pigments in the paint that she ordered from
German manufacturers Das Geshenck Lackierung GmbH
G
(“DGL”). Knowing of no other way in which she could so enhance
the paint’s quality, she relaxed her usual stringent demands for
only the most environmentally-friendly materials by requesting
that DGL add the poisonous substance R-sonic to the paint. DGL
3 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)
was supposed to ensure that the paint was safe for use by adding
A
binding material to it, which would prevent the R-sonic from being
washed away by any naturally-occurring solvents after the paint
had dried virtually immediately upon application.

B 8. However, something went wrong in the manufacturing process,


and about 10 per cent of the paint ended up containing binding
material that was defective. Unaware of this, San dutifully stored
and used the paint in a manner consistent with instructions. On 3

C November 2008, she applied some of the defective paint to her


sculptures, and the paint dried within half an hour to an hour after
application. Three whole days later, unexpectedly heavy rainfall
caused the defective paint to dissolve, resulting in the R-sonic
seeping into the ground and contaminating water in the drinking
D
well located on the property of Chua Bee Lian (“Chua”) whose
estate is the first Respondent. The only resident in the vicinity not
to use municipal piped sources of water, Chua drank the
contaminated water from the well and subsequently passed away
E due to R-sonic poisoning. As for San, she is currently in hospital
receiving treatment for R-sonic poisoning.

9. DELETED – NOT NEC. FOR EXERCISE


F
10. DELETED – NOT NEC. FOR EXERCISE.

III. ISSUES ARISING IN THIS APPEAL

G A. On the cause of action under the rule in Rylands v.


Fletcher:

11. Whether preservation of the rule in Rylands v. Fletcher can be


justified when it imposes strict liability on users of dangerous
4 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)
goods who have exercised all reasonable care in using those goods
A
merely because there has been a “non-natural use” of land and an
“escape” of the dangerous goods, notwithstanding any social
utility there may be in using those goods.

B 12. Whether the rule in Rylands v. Fletcher, if not abolished, should be


subsumed under private nuisance in order to minimise the
intrusion of strict liability into the system of fault-based
negligence liability governing the use of dangerous goods.

C
13. Whether the rule in Rylands v. Fletcher, if subsumed under private
nuisance, should consequently be subject to the same restrictions
that attend private nuisance, for instance the restriction of liability
to foreseeable damage only.
D

B. On the cause of action under s. 20 of the Civil Law Act:

14. Whether the informal adoption of Lim can be recognised under s.


E 20(8)(c) of the Civil Law Act such that Lim is considered legally a
‘child’ dependant of Chua and the informal adoption is granted
legal effect.

F 15. Whether the express requirement of marriage under s. 20(8)(d) of


the Civil Law Act can be ignored when a person who is not the
child of the unmarried deceased has been treated by the deceased
as a child of the family.

G
5 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)
IV. THE APPELLANTS’ CONTENTIONS
A
A. The Respondents’ claims should have been struck out
as stating no reasonable cause of action because the rule
in Rylands v. Fletcher does not allow recovery for
personal injuries
B
1. The rule in Rylands v. Fletcher (1868), L.R. 3 MBA Tab 11
H.L. 330 [Rylands] should be abolished because
the strict liability it imposes on users of dangerous
goods conflicts with the fault-based liability under
negligence law that normally governs any use of
C dangerous goods

16. In Singapore, the use of dangerous goods is governed by the tort of


negligence, which is fault-based in that it only holds defendants
liable for damage caused by failure to exercise reasonable care in
D
using those goods: The “Sunrise Crane”, [2004] 4 Sing. L.R. 715 ABA Tab 10
at paras. 24-25
(C.A). Fault-based liability best balances the need to compensate
plaintiffs injured by dangerous goods with society’s need for the
utility that use of these goods often brings.
E
17. It would be unjustified, therefore, for an anomalous regime of
strict liability under the Rylands rule to intervene on no other basis
MBA Tab 13
than that the elements of “non-natural use” of land and “escape” at paras. 7, 9
F are present on the facts. Nor is it justified to impose strict liability
on the basis that there exists a discrete category of
“ultrahazardous” goods to which such liability attaches, in the
J at para. 13
American manner (Keeton et al., Prosser and Keeton on Torts, 5th

G ed. (United States of America: West Publishing Co., 1984)), ABA Tab 21
at 547-556
because it is incompatible with Singapore’s position that all goods
exist along a continuous spectrum of dangerousness and simply
require a proportionate exercise of care.
6 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)

A 18. In order to clarify that users of dangerous goods need only exercise
reasonable care in using those goods, and to prevent unfairness
whereby a defendant like San, who by adhering to proper storage
and usage procedures exercised reasonable care in keeping with
her layperson’s knowledge of industrial chemistry, is nevertheless
B
held strictly liable for damage caused by her socially-useful
artwork, Singapore should abolish the Rylands rule, following the
Australian and Scottish positions in Burnie Port Authority v.
ABA Tab 1 at
General Jones (1994), 179 C.L.R. 520 (H.C.A.) and R.H.M. 556
C Bakeries (Scotland) v. Strathclyde, [1985] S.L.T. 214 (H.L.
ABA Tab 7 at
(Scot.)) respectively. 217

19. Fairness to the plaintiff is achieved not by indiscriminately holding


D strictly liable defendants who are without fault, but by alleviating
the plaintiff’s evidential burden of proving negligence. Transco
and John Murphy, “The Merits of Rylands v. Fletcher” (2004) 24 MBA Tab 14
at para. 110
Oxford J. Legal Stud. 643 cite this burden as justification for strict ABA Tab 20
liability, especially where defendants are resource-rich corporate at 658-660
E
entities. But, as Read v. J. Lyons & Co., [1947] 1 A.C. 156 (H.L. MBA Tab 9 at
(Eng.)) indicates, alleviation of this burden is readily attainable 181-182
within a framework of fault-based liability by the technique of res
ipsa loquitur, under which the defendant takes over the evidential
F burden of proving non-negligence: Teng Ah Kow v. Ho Sek Chiu,
[1993] 3 Sing. L.R. 769 (C.A.). If the defendant can positively ABA Tab 9 at
775-776
rebut the presumption of negligence set up by res ipsa loquitur, a
balanced conception of fairness dictates that no liability be
G imposed.
7 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)

A 2. Even if the Rylands rule is not abolished, it does


not allow personal injury claims

a) The Rylands rule is a sub-species of private


nuisance
B
20. Tesa Tape Asia Pacific v. Wing Seng Logistics [2006] SGHC 73, MBA Tab 13
[2006] 3 Sing. L.R. 116 [Tesa] held that Rylands is part of the tort at para. 8
of private nuisance in Singapore, following the UK position

C articulated in Transco Plc. v. Stockport, [2003] UKHL 61, [2004] MBA Tab 14
at paras. 9, 52
2 A.C. 1 [Transco] and Cambridge Water v. Eastern Counties MBA Tab 2 at
Leather (1992), [1994] 2 A.C. 264 (H.L. (Eng [Cambridge]. New 299
Zealand also followed this position in Hamilton v. Papukura
District Council, [2000] 1 N.Z.L.R. 265 (Wellington C.A). ABA Tab 5 at
D paras. 71-73

21. Subsuming Rylands under private nuisance brings clarity to the


law by affirming the close historical connection between the two
ABA Tab 19
described in F.H. Newark, “The Boundaries of Nuisance” (1949) at 487-488
E 65 Law Q. Rev. 480 and judicially recognised in Cambridge, and
MBA Tab 2 at
by acknowledging that Rylands is, with its elements of “non- 298-299
natural use” and “escape”, a land-based tort like private nuisance. MBA Tab 13
at paras. 7, 9
Seeming inconsistencies between the two concerning, inter alia,
F procedural niceties of who can sue and be sued, hinted at in Epolar
ABA Tab 3 at
System Enterprise v. Lee Hock Chuan, [2002] 4 Sing. L.R. 769 para. 10
(H.C.) and Sim Chiang Lee v. Lee Hock Chuan [2000] SGHC 265,
MBA Tab 12
[2003] 1 Sing. L.R. 122, are not reasons why there should be no at para. 7
subsuming – as argued in Donal Nolan, “The Distinctiveness of
G
Rylands v. Fletcher” (2005) 121 Law Q. Rev. 421 – but are instead ABA Tab 18
considerations that make all the more imperative the clarity that at 432-436
subsuming brings.
8 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)

A 22. If the intrusion of Rylands strict liability into fault-based


negligence liability is not eliminated, it should at least be
minimised by subjecting Rylands to the restrictions that attend its
“essential nature and purpose” (Transco) as a sub-species of MBA Tab 14
at para. 8
private nuisance – the restriction, for instance, requiring that
B
damage be foreseeable.

b) Private nuisance does not allow personal


injury claims
C
23. Epolar System Enterprise v. Lee Hock Chuan, [2003] 2 Sing. L.R. ABA Tab 4 at
198 (C.A.) held that private nuisance in Singapore is based on the paras. 10, 14-
15
theoretical foundation of interest in land, as described in Hunter v.
Canary Wharf, [1997] 1 A.C. 655 (H.L. (Eng)) [Hunter]. From
D MBA Tab 7 at
this foundation follows the conclusion that there is no recovery for 687-688, 702
personal injuries – being distinct from any land-based interest – in
private nuisance (Hunter). Just because public nuisance admits MBA Tab 7 at
personal injury claims does not mean, as the sole dissenting 696, 707, 724
E opinion on this point in Hunter suggests, that private nuisance MBA Tab 7 at
must similarly admit such claims, because there is a fundamental 719
distinction between the two torts in that the former is founded not
on private interest in land but on public health and safety: Corby

F Group Litigation v. Corby Borough Council, [2008] EWCA Civ


463 [Corby]. ABA Tab 2 at
paras. 27-30

c) Accordingly, the Rylands rule does not


allow personal injury claims
G
24. If Rylands is a sub-species of private nuisance and private
nuisance does not allow personal injury claims, it logically follows
that Rylands does not allow personal injury claims (Transco). To
MBA Tab 14
9 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)
subsume Rylands under private nuisance, and yet permit the at paras. 9, 52
A
former to operate outside the confines of the latter, is to lose the
clarity that subsuming brings and so defeat one main purpose of MBA Tab 13
at para. 9
the subsuming. Thus Tesa followed Cambridge in holding that
MBA Tab 2 at
subsuming Rylands under private nuisance necessitated as 304, 306
B consequence the rule’s yielding to the foreseeability of damage
constraint attending private nuisance, even though the rule had not
been so constrained prior to subsuming. For while the subsumed
Rylands rule and private nuisance need not have identical
elements, in that Rylands “non-natural use” can co-exist with
C
private nuisance’s “unreasonable user”, they cannot have
diametrically-opposed elements. As such, being a sub-species of
private nuisance, Rylands cannot allow recovery for personal
injury claims when private nuisance does not, just as Corby could
ABA Tab 2 at
D only justify allowing recovery for personal injuries in public but para. 27
not private nuisance by clarifying that the two are not “two species
of the same genus at all”.

E d) Authority and principle render unpersuasive


local precedents that allowed personal
injury claims under the Rylands rule

25. By holding that Rylands is a sub-species of private nuisance in


F Singapore, Tesa undermines the persuasiveness of local precedents
that treated Rylands as an independent tort in either allowing
personal injury claims under the rule, as Ang Hock Hai v. Tan Sum MBA Tab 1
Lee (1956), [1957] M.L.J. 135 (Sing. unk. ct.) and Hoon Wee Thim
v. Pacific Tin Consolidated, [1966] 2 M.L.J. 240 (Mal. unk. ct.) MBA Tab 6 at
G 251
did, or suggesting in dicta that the rule did not exclude personal
injury claims, as Yat Yuen Hong Co. v. Sheridan-Lea, [1963] 1
MBA Tab 15
M.L.J. 279 (Sing. unk. ct.) did. It is akin to how if there were at 281
precedents that did not restrict Rylands liability to foreseeable
10 REFERENCE TO
JUDGMENT (“J”)
OR APPELLANTS’
BUNDLE OF
AUTHORITIES
(“ABA”)
damage, these precedents would be doubted now.
A

26. The outcome of excluding only personal injury claims from


Rylands may be absurd, as noted in the High Court, but it remains
J at para. 13
the best compromise between abolishing Rylands, which Tesa
B declined to do, and keeping the Rylands rule as an independent ABA Tab 13
at para. 8
strict liability tort, which confuses the law governing dangerous
goods and is unfair to defendants. In any case, the absurdity by
itself does not argue against such an outcome because it can

C equally be used to argue against other outcomes – it can argue


against preserving Rylands at all, or against admission of property
damage claims in private nuisance, which admission Conor
Gearty, “The Place of Private Nuisance in a Modern Law of Torts” ABA Tab 17
[1989] Cambridge L.J. 214 opposes. at 218
D

ARGUMENTS ON THE SECOND ISSUE HAVE BEEN OMITTED FOR PURPOSES


OF THIS IN-CLASS EXERCISE

V. CONCLUSION

27. In light of the above matters, the appellant humbly request that this
F
appeal be allowed.

Dated this ___ day of ___________ 20__.

G LAW FIRM ABC


COUNSELS FOR THE APPELLANT
INDEX TO APPELLANT’S BUNDLE OF AUTHORITIES

TAB Description

Cases

1. Burnie Port Authority v. General Jones (1994), 179 C.L.R. 520 (H.C.A.) .. 7
2. Corby Group Litigation v. Corby Borough Council, [2008] EWCA Civ 463
....................................................................................................................... 9
3. Epolar System Enterprise v. Lee Hock Chuan, [2002] 4 Sing. L.R. 769
(H.C.) ............................................................................................................ 8
4. Epolar System Enterprise v. Lee Hock Chuan, [2003] 2 Sing. L.R. 198
(C.A.) ............................................................................................................ 9
5. Hamilton v. Papukura District Council, [2000] 1 N.Z.L.R. 265 (Wellington
C.A) ............................................................................................................... 8
6. Hong Guet Eng v. Wu Wai Hong, [2006] 2 Sing. L.R. 458 (H.C.) ............. 17
7. R.H.M. Bakeries (Scotland) v. Strathclyde, [1985] S.L.T. 214 (H.L. (Scot.))
....................................................................................................................... 7
8. Tan Kiam Peng v. Public Prosecutor, [2008] 1 Sing. L.R. 1 (C.A.) .......... 14
9. Teng Ah Kow v. Ho Sek Chiu, [1993] 3 Sing. L.R. 769 (C.A.)..................... 7
10. The “Sunrise Crane”, [2004] 4 Sing. L.R. 715 (C.A) .................................. 6

Statutes

11. Adoption of Children Act (Cap. 4, 1985 Rev. Ed. Sing.) ............................ 11
12. Civil Law Act (Cap. 43, 1985 Rev. Ed. Sing.) ............................................ 12
13. Fatal Accidents Act 1959 (W.A.) ................................................................ 17
14. Fatal Accidents Act 1976 (U.K.) ................................................................. 17
15. Intestate Succession Act (Cap. 146, 1985 Rev. Ed. Sing.) .......................... 11
16. Work Injury Compensation Act (Cap. 354, 1998 Rev. Ed. Sing.)............... 11

Other Authorities

17. Conor Gearty, “The Place of Private Nuisance in a Modern Law of Torts”
[1989] Cambridge L.J. 214 ......................................................................... 11
18. Donal Nolan, “The Distinctiveness of Rylands v. Fletcher” (2005) 121 Law
Q. Rev. 421 ................................................................................................... 8
19. F.H. Newark, “The Boundaries of Nuisance” (1949) 65 Law Q. Rev. 480 .. 8
20. John Murphy, “The Merits of Rylands v. Fletcher” (2004) 24 Oxford J.
Legal Stud. 643 ............................................................................................. 7
21. Keeton et al., Prosser and Keeton on Torts, 5th ed. (United States of
America: West Publishing Co., 1984)........................................................... 6
22. Sing., Parliamentary Debates, vol. 85 (6 February 2009) .......................... 15