Foreseeability in the tort of nuisance - Singapore steps back from Transco plc House of Lords approach
Fieldfisher dispute resolution partner and international arbitration specialist Simon Sloane considers Singapore's recent modification to determining liability for the tort of nuisance.
The test for the existence of a duty of care in the tort of negligence has long been bound with the concept of reasonable foreseeability.
However, in a recent judgement the Singapore Court of Appeal has provided useful clarification on the role of foreseeability in determining liability for the tort of nuisance.
In doing so, the Singapore courts have taken yet another step in de-'Hoffman'ising⃰ their common law and stepped back from the current English law position set out by Lord Hoffman in Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1.
The Singapore CA preferred the position of Lord Goff in Cambridge Water Co. v Eastern Counties Leather Plc [1994] 2 AC 264 (Cambridge Water) that foreseeability of the risk of harm is irrelevant in establishing liability in nuisance although foreseeability of the type of harm was relevant in considering the issue of remoteness as a prerequisite for liability for damage.
Justice Steven Chong set out the reasoning at paragraphs 51-55
"… it will be desirable for this court to explain the proper role of foreseeability in the tort of private nuisance. There are two competing approaches to examine.
52 The first approach is that foreseeability of the risk of harm is generally relevant in determining whether liability in nuisance is established. This is consonant with the position adopted in Transco and followed in subsequent English decisions.
53 The second approach is that foreseeability of the risk of harm is not generally relevant in establishing liability. Instead, the relevant control mechanism is the principle that the use of land must be reasonable. Foreseeability of the type of harm, however, is relevant in determining whether a type of loss is too remote to be claimed. This tracks the position adopted in Cambridge Water.
54 What is common to both these approaches is that foreseeability of the risk of harm is relevant where the nuisance was created by a third party that was not authorised by the owner or occupier of the land. In the first approach, this is merely an application of the general principle that foreseeability of the risk of harm is relevant in establishing nuisance. In the second approach, this exception is justified on the basis that nuisance will only be established if there is an unreasonable use of land, and if the owner or occupier had no knowledge of a nuisance created by an unauthorised third party, it would follow that such a situation cannot be characterised as “use”. This rationale was made explicit in Sedleigh-Denfield at 896–897 where Lord Atkin stated:
… [N]uisance is sufficiently defined as a wrongful interference with another’s enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour’s property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word “use.” This conception is implicit in all the decisions which impose liability only where the defendant has “caused or continued” the nuisance. … [emphasis added].
55 In our judgment, the second approach, encapsulated in Cambridge Water, is preferred …"
In the construction context, this decision will be of particular interest to owners (and contractors) when assessing their exposure to third-party neighbours in situations where they might be subject to Singapore laws.
*For other examples of the Singapore courts' de-'Hoffman'ising⃰ their common law, see the Singapore judgements: (i) Out of the Box Pte Ltd v Wannin Industries [2013] 3 SLR 428 rejecting Lord Hoffman's 'assumption of responsibility ' test in The Achilleas in favour of the test of 'reasonable foreseeability' as set out in the second limb of Hadley v Baxendale; and (ii) Sembcorp Marine v PPL [2013] SGCA 43 rejecting Lord Hoffman's approach in Belize [2009] that when interpreting a contract the implication of a term should be approached in the same manner as the interpretation of an express term.
However, in a recent judgement the Singapore Court of Appeal has provided useful clarification on the role of foreseeability in determining liability for the tort of nuisance.
In doing so, the Singapore courts have taken yet another step in de-'Hoffman'ising⃰ their common law and stepped back from the current English law position set out by Lord Hoffman in Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1.
The Singapore CA preferred the position of Lord Goff in Cambridge Water Co. v Eastern Counties Leather Plc [1994] 2 AC 264 (Cambridge Water) that foreseeability of the risk of harm is irrelevant in establishing liability in nuisance although foreseeability of the type of harm was relevant in considering the issue of remoteness as a prerequisite for liability for damage.
Justice Steven Chong set out the reasoning at paragraphs 51-55
"… it will be desirable for this court to explain the proper role of foreseeability in the tort of private nuisance. There are two competing approaches to examine.
52 The first approach is that foreseeability of the risk of harm is generally relevant in determining whether liability in nuisance is established. This is consonant with the position adopted in Transco and followed in subsequent English decisions.
53 The second approach is that foreseeability of the risk of harm is not generally relevant in establishing liability. Instead, the relevant control mechanism is the principle that the use of land must be reasonable. Foreseeability of the type of harm, however, is relevant in determining whether a type of loss is too remote to be claimed. This tracks the position adopted in Cambridge Water.
54 What is common to both these approaches is that foreseeability of the risk of harm is relevant where the nuisance was created by a third party that was not authorised by the owner or occupier of the land. In the first approach, this is merely an application of the general principle that foreseeability of the risk of harm is relevant in establishing nuisance. In the second approach, this exception is justified on the basis that nuisance will only be established if there is an unreasonable use of land, and if the owner or occupier had no knowledge of a nuisance created by an unauthorised third party, it would follow that such a situation cannot be characterised as “use”. This rationale was made explicit in Sedleigh-Denfield at 896–897 where Lord Atkin stated:
… [N]uisance is sufficiently defined as a wrongful interference with another’s enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour’s property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word “use.” This conception is implicit in all the decisions which impose liability only where the defendant has “caused or continued” the nuisance. … [emphasis added].
55 In our judgment, the second approach, encapsulated in Cambridge Water, is preferred …"
In the construction context, this decision will be of particular interest to owners (and contractors) when assessing their exposure to third-party neighbours in situations where they might be subject to Singapore laws.
*For other examples of the Singapore courts' de-'Hoffman'ising⃰ their common law, see the Singapore judgements: (i) Out of the Box Pte Ltd v Wannin Industries [2013] 3 SLR 428 rejecting Lord Hoffman's 'assumption of responsibility ' test in The Achilleas in favour of the test of 'reasonable foreseeability' as set out in the second limb of Hadley v Baxendale; and (ii) Sembcorp Marine v PPL [2013] SGCA 43 rejecting Lord Hoffman's approach in Belize [2009] that when interpreting a contract the implication of a term should be approached in the same manner as the interpretation of an express term.