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    12:28 AM Kenneth Tan (Stamford Law Corporation)

    Standard of Care in Negligence: BNJ v SMRT Trains Ltd [2013] SGHC 286

        

    Introduction 

    The Singapore High Court decision in BNJ v SMRT Trains Ltd [2013] SGHC 286 ("BNJ v SMRT”) is significant for being the first local decision to consider a public authority’s duty of care in negligence, in the context of providing a public good. Its holdings will likely be instructive in future disputes concerning similar claims against public authorities in Singapore.

    Facts and decision

    The facts of this case arose out of an accident on 3 April 2011. On that day, the Plaintiff was waiting to board at the train platforms of Ang Mo Kio MRT Station when she experienced a sudden loss of consciousness, fell over and landed under the train platform. Within seconds of the fall, an incoming train pulled into the station and struck the Plaintiff’s legs, both of which had to be subsequently amputated below the knee. 

    The Plaintiff sued SMRT Trains Ltd (the licensed operator) and the Land Transport Authority of Singapore (regulator / owner of the train station). The former was responsible for the implementation of operational safety measures while the latter for installing structural safety features. Notwithstanding the variety in the causes of action relied on by the Plaintiff, which include a tortious breach of duty of care in negligence as well as a contractual breach of an implied duty of care, the principal issue was whether the train station was reasonably safe for reasonable use by passengers. In this regard, the court employed the framework of negligence as set out in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (CA) ("Spandeck”) to determine the issue. 

    In the present case, the Defendants conceded that they owed a duty of care to fellow passengers like the Plaintiff (for the law on duty of care, see Spandeck). The dispute thus turned on the standard of care the defendants were held to and whether they breached that standard of care in respect of the specific risk which materialised. Coomaraswamy JC (as he then was) held that the defendants did not breach the applicable standard of care and were therefore not liable to the Plaintiff. 

    Standard of care

    It is settled law that the standard of care in negligence is the objective standard of a reasonable person using ordinary care and skill. An objective standard must take into account the position of the defendant and the reasonable standard of care to be exercised in the context. More importantly, an objective standard of care entails that a defendant would still be liable even if he lacked the resources to take the reasonable steps expected of him. In the present case, Coomaraswamy JC came to his conclusion on the applicable standard of care by analysing the following factors: (a)The magnitude of the injury; (b) The likelihood of the injury; (c) The cost and impracticality of preventing the risk.

    While the above factors clearly lend themselves to or even demand some degree of quantitative analysis, the courts will not engage in a precise mathematical assessment.  Instead, they have confined their analysis to broadly identifying the marginal utilities and costs of potential injuries and precautionary measures. In BNJ v SMRT, Coomaraswamy JC only made reference to statistics once – SMRT’s records of past unauthorised track access incidents. He also opined that it was undesirable that the cost-benefit analysis motivating LTA’s decision to build half-height platform screen doors ("PSD”) in 2008 was not in evidence before the court, but nevertheless thought it was not determinative of the dispute.  Indeed, the legal question before the court is not amenable to a precise answer: what ought the reasonable MRT operator and regulatory have done? 

    In evaluating the above factors, the learned judicial commissioner was sensitive to the fact that the relevant conduct of the defendants was the provision of a public good, the train transport system. Accordingly, the social utility generated by such activities justifies imposing a less restrictive and onerous burden on the Defendants for fear of discouraging such socially beneficial activity. Less explicitly, Coomaraswamy JC appeared alive to the fact that the relevant safety measures are and will be implemented using public resources. Practicality and good sense therefore dictate that finite public resources should not be squandered to address possible though highly improbable dangers. Instead, they should be deployed to address only the most disruptive and perceptible risks. 

    Finally, and at least in the context of providing transportation services, it should be noted that conformity with common practice is a significant factor in favour of the defendants. Coomaraswamy JC held that such conformity would constitute prima facie evidence that the defendant had taken reasonable care. Nevertheless, the court’s substantial reliance on the common practice must be matched by caution in equal measure when identifying which practices constitute the common practice. As Coomaraswamy JC did not articulate his reasons for relying on the practices of cities including Tokyo, New York, Hong Kong and Guangzhou, one ought to be clear about why the practices of these jurisdictions were relevant. It is submitted that the Coomaraswamy JC was correct in referring to the practices of these jurisdictions not because they represent an internationally recognized benchmark for leading standards of safety, the existence and contents of which are often controversial especially in other contexts. Rather, it is because these jurisdictions share sufficient similarities with Singapore in respect of two of the factors which determine the applicable standard of care: first, the circumstances of their transport systems including passenger load and congestion at train stations which has a direct impact on the likelihood of harm to passengers; second, the amount of public resources available to these jurisdictions which determines when particular safety measures fall outside the spectrum of reasonableness and cost-effectiveness. 

    A second caveat to reliance on the common practice is that care must be taken not to salami-slice a jurisdiction’s practice by appraising particular safety features in a vacuum. Doing so would distort the true significance of that safety measure and result in an unduly restrictive understanding of that jurisdiction’s approach to the risk in question. For instance, the effect of the absence of a PSD cannot be ascertained without appreciating the existence and adequacy of other safety features which may potentially compensate for its absence, or the purpose for which the PSD was constructed. Indeed, Coomaraswamy JC recognized that in Singapore’s context, the LTA’s 2008 decision to install PSDs in AMK Station was not intended to address safety concerns but to improve operational efficiency and enhance the attractiveness of public transport. Curiously, however, Coomaraswamy JC limited his inquiry to determining whether the use of PSDs, in isolation, was sufficiently commonplace in other jurisdictions, and did not consider the underlying reasons for installing or not installing PSDs. Arguably, the analysis does not go far enough in another respect. While it is not doubted that Coomaraswamy JC rightly decided the issues on the merits, it would be desirable if the learned judge had looked beyond the mere existence of a safety features but compared the safety systems adopted in these jurisdictions with that in Singapore instead. 

    In the final analysis, the spirit underlying Coomaraswamy JC’s decision is encapsulated in the following paragraph of his decision:

    "63     Of course, in an abstract sense, even one death or catastrophic injury in the pursuit of any activity can be said to be one too many. But we live in the real world. To assess risk objectively rather than emotively, one must assess the number of one-under incidents in the context of the almost 4 billion passenger trips handled by SMRT over those 8 years. The probability of injury arising from a one-under incident, assessed objectively, during those 8 years was minuscule. That is no doubt cold comfort to the Plaintiff and her parents. But it is objectively true.”

    One particular argument advanced by the Plaintiff merits examination. In the Plaintiff’s submission, SMRT’s decision in 2008 to begin installation of PSDs is evidence that the Defendants recognized that the station was not reasonably safe without PSDs, and accordingly its absence at AMK Station established the Defendants’ breach of their duty of care. The learned JC rightly rejected this argument as confusing the Defendants’ efforts to reach aspirational levels of safety for an attempt to comply with minimum safety standards. Quite apart from the argument being a non sequitur, accepting it would have a chilling effect on the embarkation on initiatives to improve safety levels by installing new features or measures since the taking of such actions essentially raises the standard of care imposed. As a matter of policy, this is plainly undesirable. 

    The objective of tort of negligence 

    The Plaintiff’s predicament in BNJ v SMRT is undeniably tragic and brings to mind an adage from Northern Securities Co v United States, 193 US 197, 400 (1904) by Justice Oliver Wendall Holmes: "Great cases, like hard cases, make bad law”. Our courts have nevertheless resisted the emotional overtones embedded in the facts of the case and have abided by the overriding criterion of fault as the cornerstone of negligence laws. This decision is a reminder that the laws of negligence, while encompassing goals of compensation, is not intended to insure victims against any and all eventualities which may occur, such as the "vicissitudes of life” as noted in Jobling v Associated Dairies Ltd [1982] AC 794. As against these eventualities, one’s most prudent course of action is simply to procure adequate insurance coverage. 

    * This blog entry may be cited as: Kenneth Tan, "Standard of Care in Negligence: BNJ v SMRT Trains Ltd [2013] SGHC 286" Singapore Law Blog (25 May 2014) (http://www.singaporelawblog.sg/blog/article/28)

    ** A PDF version of this entry may be downloaded here

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