Making duty of care non-delegable by default
Using the Woodland case as a starting point, Professor Low proposed an interesting new principle in his paper: that duty of care is non-delegable, and that the principal can be held liable for his representative’s negligence.
“What I’m trying to say is that if there are so many situations in which duty is non-delegable, why don’t we flip it around and say that duty is non-delegable as a default?” he asks. “If you ask someone to do for you, you are responsible. If he doesn’t do it well, you are liable.”
Professor Low’s reasoning behind this is a practical one. The Sumption framework is not one-size-fits-all, he says, citing a recent tort case in Singapore, MCST Plan No 3322 v Tiong Aik Construction Pte Ltd. Here, the management company of a condominium represented the property owners to sue the developer, main contractor, architect and various parties for some defects.
“The pool landscaping was not well done, and leaves would often fall into the pool and clog up the system. There was also a foul smell coming out of the sewage system,” describes Professor Low.
However, the Singapore Court of Appeal had endorsed the Woodland decision and, referencing the Sumption framework, said that the five requirements were not satisfied. For that reason, the judge ruled that there was no non-delegable duty on the part of the main contractor and the architect.
Regarding the fairness of the Tiong Aik decision, Professor Low confesses that he had his doubts.
“I think that in general property buyers do not contemplate at all who the sub-contractors of their units are,” he says. “They bought the house from the developer; when something goes wrong, they would expect the developer to take care of it.”
Professor Low saw the need to draw up an alternative: one where the principal has non-delegable duty and will be held liable, subject to appropriate exceptions. Noting in his paper that the adoption of such a principle would be a “radical move”, he also pointed out the lack of any comprehensive and coherent legal framework still troubles judges and jurists alike.
“This area of law is tricky, and needs to be cleared up.”
Asian Scientist Magazine is a media partner of the Singapore Management University Office of Research.
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Copyright: SMU Office of Research. Read the original article here; Photo: Cyril Ng.
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