Tan Juay Pah v Kimly Construction: Tower Crane Collapse & Negligence

Tan Juay Pah appealed against the High Court's decision regarding the collapse of a tower crane at a construction site. Kimly Construction, the main contractor, sued Rango Machinery Services, the sub-contractor who rented the crane. Rango then brought in Tan Juay Pah, the certifying mechanical engineer, as a third party, claiming an indemnity. The Court of Appeal allowed the appeal, finding that Tan Juay Pah did not owe a common law duty of care to Kimly and was therefore not obligated to indemnify Rango.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal Allowed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding a tower crane collapse. The court addressed negligence, indemnity, and the duty of care of an authorised examiner.

1.7 Decision Date

1 March 2012

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Tan Juay Pah	Appellant	Individual	Appeal Allowed	Won	Lee Eng Beng of Rajah & Tann LLP Disa Sim of Rajah & Tann LLP Ang Siok Hoon of Rajah & Tann LLP
Kimly Construction Pte Ltd	Respondent	Corporation	Claim Dismissed	Lost	Christopher Chuah of WongPartnership LLP Joyce Ng of WongPartnership LLP Napolean Koh of WongPartnership LLP
Lee Tong Boon trading as Rango Machinery Services	Respondent	Individual	Indemnity Claim Dismissed	Lost	Mohamed Baiross of Martin & Partners Martin Roderick Edward of Martin & Partners
Feng Tianming	Respondent	Individual	Claim Dismissed	Won	Siaw Kheng Boon of Siaw Kheng Boon & Co
FES Engineering Pte Ltd	Respondent	Corporation	Claim Dismissed	Won	Ramasamy s/o Karuppan Chettiar of ACIES Law Corporation Navin Kripalami of ACIES Law Corporation

3. Judges

Judge Name	Title	Delivered Judgment
Chao Hick Tin	Justice of the Court of Appeal	Yes
Andrew Phang Boon Leong	Justice of the Court of Appeal	Yes
V K Rajah	Justice of the Court of Appeal	Yes

4. Counsels

Counsel Name	Organization
Lee Eng Beng	Rajah & Tann LLP
Disa Sim	Rajah & Tann LLP
Ang Siok Hoon	Rajah & Tann LLP
Christopher Chuah	WongPartnership LLP
Joyce Ng	WongPartnership LLP
Napolean Koh	WongPartnership LLP
Mohamed Baiross	Martin & Partners
Martin Roderick Edward	Martin & Partners
Siaw Kheng Boon	Siaw Kheng Boon & Co
Ramasamy s/o Karuppan Chettiar	ACIES Law Corporation
Navin Kripalami	ACIES Law Corporation

4. Facts

A tower crane collapsed at a construction site, resulting in three worker deaths.
Kimly Construction was the main contractor for the project.
Rango Machinery Services was the sub-contractor who rented the crane to Kimly.
Tan Juay Pah was the certifying mechanical engineer engaged to inspect the crane.
The collapse was attributed to pre-existing cracks in the mast anchors.
TJP did not conduct non-destructive tests on the mast anchors prior to erection.
Kimly sued Rango, who in turn sought indemnity from TJP.

5. Formal Citations

Tan Juay Pah v Kimly Construction Pte Ltd and others, Civil Appeal No 208 of 2010, [2012] SGCA 17
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

6. Timeline

Date	Event
2006-08-15	Rango orally engaged TJP to inspect the Tower Crane.
2006-08-18	TJP submitted a Third Party Inspection Report to the MOM.
2006-08-28	Kimly entered into a sub-contract with Rango for renting the Tower Crane.
2006-09-14	Feng submitted design drawings and calculations to the MOM.
2006-09-29	The MOM issued its approval for the use and operation of the Tower Crane.
2006-11-09	Feng issued a Certificate of Supervision.
2006-11-18	The Tower Crane was erected at the Project Site; TJP conducted a load test.
2007-11-20	TJP signed a second Lifting Equipment Certificate.
2008-02-22	The Tower Crane collapsed at the Project Site.
2008-11-03	Kimly commenced its action against Rango.
2009-09-28	Rango filed Statement of Claim against TJP.
2010-01-28	The Judge decided that Kimly succeeded in its claim against Rango and Rango succeeded in its claim against TJP.
2010-07-15	Yuan Long Sheng affirmed affidavit.
2010-09-08	Kenneth James Patterson-Kane filed affidavit of evidence-in-chief.
2010-10-29	Rango's Closing Submissions filed.
2011-07-07	Hearing before the Court of Appeal.
2012-03-02	Judgment reserved.

7. Legal Issues

Duty of Care
- Outcome: The court held that the authorised examiner did not owe a common law duty of care to the main contractor.
- Category: Substantive
- Sub-Issues:
  - Breach of duty of care
  - Causation
  - Proximity
  - Policy considerations
- Related Cases:
  - [2007] 4 SLR(R) 100
  - [1990] 2 AC 605
Indemnity
- Outcome: The court held that the authorised examiner was not obligated to indemnify the sub-contractor.
- Category: Substantive
- Sub-Issues:
  - Contractual indemnity
  - Equitable indemnity
  - Contribution
- Related Cases:
  - [1924] AC 177
  - [1993] 2 SLR(R) 411
Breach of Statutory Duty
- Outcome: The court acknowledged the potential breach of statutory duty but found it insufficient to establish a common law duty of care.
- Category: Substantive
- Sub-Issues:
  - Failure to inspect
  - Failure to test
  - Failure to certify

8. Remedies Sought

Indemnity
Contribution
Monetary Damages

9. Cause of Actions

Breach of Contract
Negligence
Breach of Statutory Duty

10. Practice Areas

Construction Litigation
Commercial Litigation
Workplace Injury Claims

11. Industries

Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Bansal Hemant Govindprasad and another v Central Bank of India	High Court	Yes	[2003] 2 SLR(R) 33	Singapore	Cited for the principle that a submission of “no case to answer” by a defendant succeeds if the plaintiff’s evidence, at face value, does not establish a case in law, or the evidence led by the plaintiff is so unsatisfactory or unreliable that his burden of proof has not been discharged.
Royal Brompton Hospital NHS Trust v Hammond and others (Taylor Woodrow Construction (Holdings) Ltd, Part 20 defendant)	House of Lords	Yes	[2002] 1 WLR 1397	United Kingdom	Established the three-step test for determining whether parties are liable for the same damage under contribution claims.
Animal Concerns Research & Education Society v Tan Boon Kwee	Court of Appeal	Yes	[2011] 2 SLR 146	Singapore	Clarified that a statutory duty does not automatically impose a concomitant duty of care at common law and reiterated the application of the Spandeck test.
Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency	Court of Appeal	Yes	[2007] 4 SLR(R) 100	Singapore	Established the two-stage Spandeck test for determining the existence of a duty of care in negligence.
X (Minors) v Bedfordshire County Council	House of Lords	Yes	[1995] 2 AC 633	United Kingdom	Addressed the relationship between statutory duties and common law duties of care.
Harris v Evans and Another	Court of Appeal	Yes	[1998] 1 WLR 1285	United Kingdom	Considered whether the imposition of an alleged common law duty of care should be inconsistent with the statutory scheme concerned and the statutory duties owed under that scheme.
Eastern Shipping Company, Limited v Quah Beng Kee	Privy Council	Yes	[1924] AC 177	Malaysia	Discussed the equitable duty to indemnify stemming from an assumed promise by a person to do that which, under the circumstances, he ought to do.
Hygeian Medical Supplies Pte Ltd v Tri-Star Rotary Screen Engraving Works Pte Ltd (Seng Wing Engineering Works Pte Ltd, third party)	High Court	Yes	[1993] 2 SLR(R) 411	Singapore	Addressed the doctrine of the equitable assumed promise to indemnify.
Checkpoint Fluidic Systems International Ltd v Marine Hub Pte Ltd and Another Appeal	High Court	Yes	[2009] SGHC 134	Singapore	Discussed the equitable right to an indemnity 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.
Caparo Industries Plc v Dickman and Others	House of Lords	Yes	[1990] 2 AC 605	United Kingdom	Addressed the imposition of a common law duty of care where liability may be indeterminate.
Ikumene Singapore Pte Ltd and another v Leong Chee Leng (trading as Elizabeth Leong & Co)	Court of Appeal	Yes	[1993] 2 SLR(R) 480	Singapore	Addressed the imposition of a common law duty of care on a company’s auditor vis-à-vis a guarantor of the company’s credit facilities.
Swanson et al v The Queen in right of Canada	Canadian Federal Court of Appeal	Yes	(1991) 80 DLR (4th) 741	Canada	Addressed the duty of care owed by a government agency to passengers of an airline.
Perrett v Collins and Others	English Court of Appeal	Yes	[1998] 2 Lloyd’s Rep 255	United Kingdom	Addressed the duty of care owed by an inspector who negligently provided a certificate of fitness for an airplane to fly.
Anns and Others v Merton London Borough Council	House of Lords	Yes	[1978] AC 728	United Kingdom	General reference to duty of care.
Welton and Another v North Cornwall District Council	Court of Appeal	Yes	[1997] 1 WLR 570	United Kingdom	General reference to duty of care.
Stovin v Wise, Norfolk County Council (Third Party)	House of Lords	Yes	[1996] AC 923	United Kingdom	Discussed the concept of proximity as shorthand for a relationship between two parties which makes it fair and reasonable that one should owe the other a duty of care.
Smith v Eric S Bush	House of Lords	Yes	[1990] 1 AC 831	United Kingdom	Addressed the duty of care owed by a surveyor to a client seeking a survey report on a property.
Lamb and Another v Camden London Borough Council and Another	Court of Appeal	Yes	[1981] QB 625	United Kingdom	Discussed the role of insurance in policy considerations when determining duty of care.
Morgan Crucible Co Plc v Hill Samuel & Co Ltd and Others	High Court	Yes	[1991] Ch 295	United Kingdom	Discussed the factor of insurance in distinguishing Smith v Eric S Bush from Caparo.
McFarlane and Another v Tayside Health Board	House of Lords	Yes	[2000] 2 AC 59	United Kingdom	Discussed considerations of corrective justice and proportionality between wrongdoing and loss suffered.
Reeman and Another v Department of Transport and Others	Court of Appeal	Yes	[1997] 2 Lloyd’s Rep 648	United Kingdom	Addressed the duty of care owed by a government department to the purchaser of a fishing boat who had relied on an incorrect safety certificate.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Workplace Safety and Health Act (Cap 354A, 2007 Rev Ed)	Singapore
Workplace Safety and Health (General Provisions) Regulations (Cap 354A, Rg 1, 2007 Rev Ed)	Singapore
Civil Law Act (Cap 43, 1999 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Tower Crane
Mast Anchors
Authorised Examiner
Non-Destructive Testing
Workplace Safety and Health Act
Indemnity
Duty of Care
Pre-Existing Cracks
Sub-Contract
Lifting Equipment Certificate

15.2 Keywords

tower crane collapse
negligence
authorised examiner
duty of care
indemnity
construction accident
workplace safety
Singapore law

17. Areas of Law

Area Name	Relevance Score
Workplace Safety and Health	90
Work Injury Compensation	80
Negligence	70
Construction Law	60
Contract Law	50
Personal Injury	30
Employment Law	20

16. Subjects

Construction Dispute
Negligence
Workplace Safety
Professional Liability