OTF Aquarium Farm v Lian Shing: Negligence & Nuisance in Drainage Works Causing Fish Death

OTF Aquarium Farm sued Lian Shing Construction Co Pte Ltd in the High Court of Singapore on 31 July 2007, claiming damages for negligence and nuisance. OTF alleged that Lian Shing's drainage works caused flooding at its fish breeding farm, resulting in the death of 42 arowanas and other losses. The court found Lian Shing liable for negligence and nuisance for 31 dead arowanas and ordered interlocutory judgment in favor of OTF, with damages to be assessed by the Registrar.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Interlocutory judgment in favor of the plaintiff with damages to be assessed by the Registrar.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

OTF Aquarium Farm sued Lian Shing for negligence and nuisance after drainage works allegedly caused flooding and death of arowanas. The court found Lian Shing liable for 31 dead arowanas.

1.7 Decision Date

30 July 2007

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
OTF Aquarium Farm (formerly known as Ong's Tropical Fish Aquarium & Fresh Flowers) (a firm)	Plaintiff	Partnership	Interlocutory judgment in favor of the plaintiff	Partial	Prabhakaran N Nair
Lian Shing Construction Co Pte Ltd	Defendant	Corporation	Interlocutory judgment against the defendant	Lost	Leonard Loo Peng Chee
Liberty Insurance Pte Ltd	Third Party	Corporation	Third party action was eventually settled	Settled

3. Judges

Judge Name	Title	Delivered Judgment
Belinda Ang Saw Ean	Judge	Yes

4. Counsels

Counsel Name	Organization
Prabhakaran N Nair	Ong Tan & Nair
Leonard Loo Peng Chee	Leonard Loo & Co

4. Facts

OTF Aquarium Farm claimed damages for flooding to its fish breeding farm.
The flooding was allegedly consequential upon the defendant carrying out drainage works on neighbouring land.
OTF asserted that the floods were substantially caused by Lian Shing’s negligence or that its works constitute a nuisance to OTF’s farm.
OTF is owned by Ong Chin Soon and has been in the tropical fish breeding business since 1973.
L7 is one of several properties in the Pasir Ris area that is gazetted as farmland.
In 2000, OTF started to breed and harvest arowana.
Bordering L7 is a large piece of land belonging to the Public Utilities Board.
Lian Shing was the subcontractor engaged to carry out drainage works at the DR.
The original contract was for Lian Shing to construct one C7 drain in the middle of the DR to improve the drainage at the location.
In clearing the vegetation at the DR, Lian Shing discovered a pond and earth drain located behind L7.
To level the DR, both the pond and earth drain were backfilled by Lian Shing.
From time to time OTF called to the attention of the AVA the possible danger of flooding the defendant’s activities at the DR posed to farms.
The first occasion the farm experienced slight flooding was in December 2002.
Serious flooding occurred on the farm on 26 December 2002.
The present proceedings were instituted on 31 August 2005.

5. Formal Citations

OTF Aquarium Farm (formerly known as Ong's Tropical Fish Aquarium & Fresh Flowers) (a firm) v Lian Shing Construction Co Pte Ltd (Liberty Insurance Pte Ltd, Third Party), Suit 614/2005, [2007] SGHC 122

6. Timeline

Date	Event
1973-01-01	Ong Chin Soon started tropical fish breeding business.
2000-01-01	OTF started to breed and harvest arowana.
2002-11-01	Ong notified the AVA in writing that the drainage works had caused flooding to a nearby farm.
2002-11-01	Lian Shing's drainage project began.
2002-12-01	The farm experienced slight flooding.
2002-12-26	Heavy rainfall occurred.
2002-12-27	Ong complained to the AVA that rain water mixed with a large quantity of contaminated water had flowed into pond 1.
2002-12-27	One arowana was found dead.
2003-01-08	Ong wrote to the PUB relaying his concern that water run-off from the DR would flow onto the farm and into the fish pond.
2003-01-20	The PUB replied to Ong.
2003-01-23	An officer of AVA instructed Oh to stop drainage works.
2003-01-24	Oh lodged a police report about the incident.
2003-01-29	A total of four arowanas had died.
2003-01-31	Further flooding of the farm occurred.
2003-02-03	Further flooding of the farm occurred.
2003-02-06	A total of 28 arowanas had died.
2003-02-08	Ong identified two major flooding incidents on 31 January 2003 and 3 February 2003.
2003-02-28	Construction of C7 drain started.
2003-06-05	Another ten arowanas died; one on 5 June 2003 and nine on 6 June 2003.
2003-06-06	Another nine arowanas died.
2003-06-30	The drainage works as revised were completed.
2005-08-31	The present proceedings were instituted.
2006-02-14	Lian Shing was duly substituted as defendant in place of the main contractor.
2006-10-17	The trial of the main action started.
2007-07-31	Judgment Reserved.

7. Legal Issues

Negligence
- Outcome: Liability in negligence is established on the facts for 31 dead arowanas.
- Category: Substantive
- Sub-Issues:
  - Failure to take reasonable steps to allow rainwater to drain effectively
  - Failure to foresee the danger and risk that flooding posed
  - Failure to alleviate and or render harmless the dangerous effects of flooding
Nuisance
- Outcome: Liability in nuisance is established on the facts for 31 dead arowanas.
- Category: Substantive
- Sub-Issues:
  - Interference with natural water flow
  - Failure to provide an alternative channel to drain surface water
  - Creation of a hazard with foreseeable risk of damage
Causation
- Outcome: The court found that the defendant's drainage works was a sufficiently proximate cause of the death of 31 fishes.
- Category: Substantive
- Sub-Issues:
  - Proximate cause of death of arowanas
  - Flooding caused by drainage works
  - Contamination of pond water by flood water
Mitigation of Losses
- Outcome: The court found that OTF took reasonable steps to mitigate its losses.
- Category: Substantive
Force Majeure
- Outcome: The court rejected the defence of force majeure.
- Category: Substantive
Title to Sue
- Outcome: The court accepted that OTF had sufficient proof of ownership of the dead fishes.
- Category: Procedural

8. Remedies Sought

Damages for consequences of flooding
Damages for dead arowanas
Consequential loss of profits
Clean up and reinstatement costs

9. Cause of Actions

Negligence
Nuisance

10. Practice Areas

Commercial Litigation
Construction Law

11. Industries

Construction
Agriculture

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Sedleigh-Denfield v O’Callaghan and Others	House of Lords	Yes	[1940] AC 880	England and Wales	Cited for the principle that an occupier is responsible for a nuisance which he knew or ought to have known would be the consequences of the activities carried on by him on his land.
Pemberton v Bright and Another	England and Wales High Court	No	[1960] 1 WLR 436	England and Wales	Cited as an example of actions to recover damage resulting from flooding brought in nuisance.
Seong Fatt Sawmills Sdn Bhd v Dunlop Malaysia Industries Sdn Bhd	Federal Court of Malaysia	Yes	[1984] 1 MLJ 286	Malaysia	Cited to illustrate the existence of a viable and sustainable claim where the facts bear some resemblance to those of the present case.
Home Brewery plc v William Davis & Co (Loughborough) Ltd	England and Wales High Court	No	[1987] 1 All ER 637	England and Wales	Cited as an authority on nuisance but distinguished as irrelevant to the present case.
West Cumberland Iron and Steel Company v Kenyon	England and Wales High Court	No	(1879) LR 11 ChD 782	England and Wales	Cited as an authority on nuisance but distinguished as irrelevant to the present case.
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty and Another	Privy Council	Yes	[1967] 1 AC 617	United Kingdom	Cited for the principle that if the reasonable man would have realised or foreseen and prevented the risk, then the appellant is liable in damages.
Delaware Mansions Ltd v Westminster City Council	House of Lords	Yes	[2002] 1 AC 321	England and Wales	Cited for the principle of reasonableness between neighbours and reasonable foreseeability in tort law and nuisance.
Barker v Herbert	England and Wales High Court	Yes	[1911] 2 KB 633	England and Wales	Cited for the principle that if the defendant did not create the nuisance he must, if he is to be held responsible, have continued it, which means simply neglected to remedy it when he became or should have become aware of it.
Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd	High Court of Singapore	Yes	[2006] 3 SLR 116	Singapore	Cited for the relevance of the existing state of knowledge of the defendants at the time of the acts and omissions complained of.
Hughes v Lord Advocate	House of Lords	Yes	[1963] AC 837	United Kingdom	Cited for the principle that the test of foreseeability in the context of duty of care does not require the plaintiff to prove that the defendant should have foreseen the precise mechanics that result in damage.
Hygeian Medical Supplies Pte Ltd v Tri-Star Rotary Screen Engraving Works Pte Ltd	High Court of Singapore	Yes	[1993] 3 SLR 309	Singapore	Cited for the characterization of actionable nuisance as the causing or permitting of a state of affairs in one man’s property from which damage to his neighbour’s property is likely to arise.
Goldman v Hargrave	Privy Council	Yes	[1967] 1 AC 645	United Kingdom	Cited for the principle that judgments are directed to what a reasonable person in the shoes of the defendant would have done.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

Arowana
Dragon fish
Drainage works
Flooding
Negligence
Nuisance
Surface run-off
Earth embankment
Pond
Earth drain
Contamination
CITES

15.2 Keywords

Arowana
Flooding
Negligence
Nuisance
Drainage
Construction
Fish farm

16. Subjects

Tort
Negligence
Nuisance
Environmental Law
Construction Dispute

17. Areas of Law

Negligence
Nuisance
Tort Law
Construction Law