Singapore: Construction Standards and Codes of Practice – The Significance of Compliance and Non-Compliance

Last Updated: 8 February 2012
Article by Subramanian Pillai and Victor Fernandez

Architects, Engineers and Contractors rely on Standards and Codes of Practice to serve as a guide in the execution of their design and workmanship obligations. Standards or Codes of Practice, in effect, act as a codified version of the cumulative knowledge and technical expertise within the building and construction industry.

In Singapore, the Building and Construction Authority, pursuant to the Building Control Regulations (the "Regulations"), has issued the Approved Document of Acceptable Solutions (the "Approved Document"). The Approved Document specifies the preferred standards for different aspects of design and construction works which are deemed to meet the prescribed objectives and performance requirements in Singapore for design, material and construction. It is significant that the Approved Document cites both the British Standard and the Singapore Standard.

Since Standards or Codes of Practice can be said to reflect the best practices and cumulative knowledge of the construction industry over a period of time, one may argue that in a situation where a construction professional fails to follow these Standards or Codes of Practice, it will amount to a clear cut case of negligence and therefore, he should be held accountable for any damage to his employer or to third parties resulting from the defective design or workmanship.

However, in the recent case of Management Corporation Strata Title Plan No 2757 v Lee Mow Woo (practising under the firm of Engineers Partnership) [2011] SGHC 112, the High Court accepted the argument that this might not always be the case.

In this case, the plaintiff was the management corporation of an industrial development known as Northlink Development (the "Development"). The Development consisted of three light industrial buildings (the "Building"). The defendant was the Consultant Engineer for the Development.

The plaintiff commenced legal proceedings against the defendant arguing that the defendant was negligent in the design of the Building and this has resulted in defects which required to be rectified. One of the alleged defects was in the area of the expansion joints and the surrounding areas.

The main issue to be determined by the Court was whether the design of the corbel/beam configurations at the expansion joints and the surrounding areas was defective.

The plaintiff took the position that the design was negligent since it did not comply with the requirements of the British Standards Institution's Code of Practice BS 8110:Part 1:1985 ("the Code").

On the other hand, the defendant took the position that the Code only serves as a guide and non-compliance per se does not ipso facto render the design inadequate. The defendant argued that what was important was that the design was safe based on engineering principles.

The High Court, taking into account the evidence presented by the parties' respective expert witnesses, found that the design was inadequate to handle the stresses that the corbel/beams would be subjected to.

However, it is important to note that the Court recognized that non-compliance with the Code does not, by itself, mean that the design was inadequate. In that situation, the burden lies with the designer to prove that his design was safe by applying accepted principles of engineering. In this respect, the Court observed as follows:-

"Nevertheless, I accept the defendant's contention that non-compliance with the Code does not, in itself, mean that the Design is inadequate. Both experts accepted that the Code represents cumulative engineering knowledge over a long period. It would follow that even though there is no strict requirement to comply with the Code, nevertheless, a design that is in compliance with it can generally be assumed to be safe. On the other hand, if a design does not comply with the Code, the designer would have to satisfy himself that it was safe by applying accepted principles of engineering"

Accordingly, in a case where a design does not comply with the Code, any "presumption" that the designer was negligent may be rebutted by proof that the design was still safe based on established and accepted engineering principles.

Whilst Standards or Codes of Practice may reflect the best practices of the industry at a given point in time, it is accepted that there may be several ways of doing things. As the creative and innovative boundaries of architectural and engineering design and construction are continually pushed, a certain level of indulgence may be allowed so as to encourage creativity and innovation as long as the design and construction works are safe and grounded on established and accepted architectural, engineering or construction principles.

Here, it is significant to note that the Regulations recognize this flexibility in the interest of innovation and creativity. The Regulations provide that the Commissioner of Building Control may issue approved documents setting out the specifications, materials, designs or methods of construction (the "acceptable solutions") which shall be deemed to comply with relevant objectives and performance requirements for the design of buildings in Singapore. However, the Regulations state that this is without prejudice to any alternative means of achieving compliance. Thus, it would appear that the Regulations also recognize that the acceptable solutions for the design and construction of buildings are not exhaustive.

One important question that is raised in this context is whether an Architect, Engineer or Contractor may be found negligent in the event that his design or construction fails notwithstanding that he has fully complied with the Code or any other acceptable Standard of design or construction. The answer to this query may eventually hinge on the particular facts of each case.

At the onset, the general rule is that the standard of care required of a designer or contractor is that he should exercise reasonable skill and care in the exercise of his duties.

On the issue of professional negligence, it is important to consider the "Bolam test" as set out in the case of Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 HL. Under the Bolam test, the standard for professionals is not that of a person possessing the highest expert skill, but that of an ordinary skilled man exercising and professing to have that special skill.

Since Standards or Codes of Practice contain the cumulative knowledge and technical expertise in a given field, it may be argued that compliance with Standards or Codes of Practice is sufficient to absolve an Architect, Engineer or Contractor from liability.

However, the Bolam test has been slightly modified by the "Bolitho addendum" which was introduced in the case of Bolitho v City and Hackney Health Authority [1998] AC 232. Under the Bolitho addendum, the Court also has to be satisfied that the body of opinion relied upon by the professional has a logical basis and in the event that the opinion does not stand up to a logical analysis, a Court is entitled to exercise its discretion and rule that the opinion is not reasonable. In Bolitho, the House of Lords held that:-

"These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible."

Following Bolitho, it is possible to argue that certain Standards or Codes of Practice may be wanting in terms of logical analysis. In such an event, strict compliance with the Standards or Codes of Practice may not absolve the Architect, Engineer or Contractor from liability for any defect in the design or workmanship.

The Singapore Court of Appeal recently adopted the Bolitho addendum in the case of JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) [2007] SGCA 40. There, the Court observed that "[t]he Bolitho addendum merely affirms the supervisory judicial responsibility to ensure, at a minimum, that the expert opinion is defensible and grounded in logic and plain common sense."

Given that Standards or Codes of Practice are said to reflect the cumulative engineering knowledge and collection of opinion or best practices formulated over a period of years, it is arguable that the ruling in the cases of Bolitho and JSI Shipping would likewise be applicable in cases where an Architect, Engineer or Contractor is alleged to be negligent in the design or construction of works and he raises the defence that he has strictly complied with the recognized and accepted Standards or Codes of Practice.

It is submitted that, in such an instance, the Court is still free to exercise its discretion in determining whether the Standards or Codes of Practice relied on are based on sound logic and plain common sense. If the Court finds that the Standard or Codes of Practice relied upon are not capable of withstanding such logical analysis, the Court may still find that such reliance does not absolve an Architect, Engineer or Contractor from negligence in the design and construction of the works.

Whilst it is admitted that challenges to established Standards or Codes of Practice within the Construction Industry will be very rare, it is still important for constructions professionals and contractors to ensure that their creative and innovative design and construction works are based on sound and rational engineering practices that will stand up to scrutiny. The main objective must always be that the design and construction works are safe and fit for the purpose for which they are designed or built irregardless of whether there has been compliance with the applicable Standards or Codes of Practice.

This update is provided to you for general information and should not be relied upon as legal advice.

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Authors
Subramanian Pillai
 
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