IMPORTANT JUDGMENTS OF THE COURT OF APPEAL

Summaries of significant judgments released by the Court of Appeal (CA) in 2004 are set out below.

Nguyen Tuong Van v Public Prosecutor [2004] SGCA 47

Coram : Yong Pung How CJ, Chao Hick Tin JA and Lai Kew Chai J

The accused was convicted in the High Court of trafficking in 15 grams or more of diamorphine and sentenced to the mandatory death penalty. He appealed against his conviction and sentence, contending, inter alia, that the mandatory death penalty was unconstitutional.

The CA, in dismissing his appeal against his sentence, held that the mandatory death penalty did not offend the equal protection of the law encapsulated in Art 12(1) of the Constitution, nor did it constitute deprivation of life not "in accordance with law" and thereby offend Art 9(1) of the Constitution. The CA further ruled that while the prohibition against cruel and inhuman treatment amounted to a rule of customary international law, there was no specific customary international law prohibition against the death penalty in general, or against hanging as a mode of execution. The CA added that, in any case, domestic legislation would prevail in the event of any inconsistency with customary international law.

Man B&W Diesel S E Asia Pte Ltd and Another v PT Bumi International Tankers and another appeal [2004] SGCA 8

Coram: Yong Pung How CJ, Chao Hick Tin JA and Tan Lee Meng J

The appellant company contracted with Malaysian Shipyard and Engineering Sdn Bhd ("MSE") for the supply of an engine for a vessel. The vessel itself was to be built by MSE for the respondents, pursuant to a contract between them. The contract between MSE and the respondents contained express clauses that limited the remedies available to the respondents. There was, however, no contract between the respondents and the appellants. The engine encountered problems and eventually broke down. At the trial, the respondents successfully sued the appellants for damages for the negligent design and/or manufacture of the engine.

The CA, in allowing the appeal, held that the appellants did not owe the respondents a duty of care. The CA distinguished the facts of this case from RSP Architects Planners & Engineers v Ocean Front Pte Ltd [1996] 1 SLR 113, expressing the opinion that courts should be cautious about extending the principles of Ocean Front to new situations. The CA found that by entering into the main contract with MSE on such limited terms, the respondents had committed themselves to looking to MSE for redress. If the respondents were not satisfied with these limited terms, they could have gone to another builder or obtained independent insurance coverage for any economic losses.

To infer a duty of care on the appellants would run counter to the specific arrangement that the respondents had chosen to make with MSE. The respondents had made their bargain and must live with it. It was not for the court to help a party, after the event, to improve his commercial bargain.

The "Sunrise Crane" [2004] SGCA 42

Coram : Yong Pung How CJ, Chao Hick Tin JA and Judith Prakash J (dissent)

The appellants, owners of the Sunrise Crane, hired a contractor to remove hazardous cargo from their ship. The contractor hired the respondents, owners of the Pristine, to perform the task. The appellants failed to inform the crew of the Pristine that the cargo was hazardous before the cargo was transferred over. Subsequently, the Pristine capsized because it was made of a material which could not take the hazardous cargo. The High Court found the appellants liable in negligence on the basis that they were under a duty of care to inform the respondents about the dangerous nature of the cargo prior to the transfer.

The CA, by a majority, dismissed the appeal. They held that the appellants were under a duty to inform the crew of the Pristine about the dangerous nature of the cargo notwithstanding that they had informed the contractor earlier. Further, the CA stated that remedies in tort do not automatically become unavailable merely because the plaintiff has a remedy in contract against another party. Justice Prakash dissented on the basis that having entered into a contract with a competent contractor, the appellants could not have foreseen that the contractor would have sent a vessel incapable of taking the hazardous cargo. In the circumstances, it was neither fair nor reasonable to impose a duty of care on the appellants to inform the respondents of the nature of the cargo as that would make the appellant, as employer, responsible for the duties of the independent contractor.

TV Media Pte Ltd v De Cruz Andrea Heidi and another appeal [2004] SGCA 29

Coram : Yong Pung How CJ, Chao Hick Tin JA and Woo Bih Li J

The first appellants were the sole distributor of a slimming drug, Slim 10, in Singapore. The second appellant was the director and principal shareholder of the Singapore company that imported and sold Slim 10. The High Court found that the respondent’s consumption of Slim 10 had caused her liver failure and held both appellants liable in negligence.

The CA dismissed both appeals against liability. The CA held that the first appellant owed the respondent a duty of care which extended to taking steps to deal with a reputable supplier and ensuring the safety of the product. It was not a tenable defence for the first appellants to assert that it had placed reliance on other parties in the chain of distribution if it had neglected its own duties, especially since there was evidence that the first appellants had had strong doubts about the safety of Slim 10. The first appellants also breached its duty of care by making false representations as to the safety of Slim 10 for consumption. The CA also found the second appellant to be the "controlling mind and spirit" of the Singapore company that imported and sold Slim 10 and rejected his argument that making him personally liable would result in "open hunting season" on directors of small companies.

Asia Hotel Investments Ltd v Starwood Asia Pacific Management Pte Ltd and Another [2004] SGCA 29

Coram : Yong Pung How CJ (dissent), Chao Hick Tin JA and Judith Prakash J

The appellants were interested in investing in a hotel called ‘Grand Pacific’ (‘the hotel’). The appellants then entered into an agreement with the respondents, a provider of hotel management and consultancy services, in which both parties agreed not to negotiate, contract or deal with any other party for the management of the hotel for 12 months (‘the agreement’). Subsequently, the appellants failed to convince the owners of the hotel to sell them their shares. These shares were eventually sold to the Narulas, who entered into a management contract with the respondents for the management of the hotel. The appellants claimed that the respondents had breached the agreement and caused them to lose a chance at buying the shares in the hotel. The High Court held that the respondents were in breach of the agreement, but awarded the appellants nominal damages as the breach did not cause the loss of a "real and measurable" chance.

The CA, by a majority, allowed the appeal, holding that the respondents’ breach had caused the appellants to lose a real or substantial chance of acquiring the shares in the hotel and directed damages to be assessed. In dissent, the Chief Justice stated that causation had to be proved on a balance of probabilities and that the appellants had failed to discharge this burden. He held that, on the evidence, it was impossible to say that the breach had caused the loss of a real or substantial chance to acquire the hotel without engaging in unnecessary speculation.

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