SINGAPORE Law and Practice Contributed by: Joseph Chun, Shook Lin & Bok LLP
the standard of care owed to the latter, and as a result, causes harm of a foreseeable type to the latter (eg, when the operator of a facility carelessly discharges or emits pollutants, causing harm to another person); • rule in Rylands v Fletcher – when a person brings a hazardous substance or material onto land in the course of an unnatural use of the land, (eg, bring- ing a large amount of waste to a land used as a waste disposal facility, and the waste leaks out of the facility and causes harm to another person); and • trespass to land – when a person intentionally discharges pollutants directly to another person’s land (in cases of trespass to land, interference with property rights is sufficient for liability, and it is not necessary to demonstrate that any harm or dam- age has occurred). Claims may also be brought in contract for breach of environmental obligations (eg, under a lease, supply contracts, or construction contract). Civil claims for environmental damage can also be recovered under legislation (eg, for the recovery of the cost of clean-up or measures to prevent pollution, per EPMA, EPHA and PPSA). Apart from claims for monetary compensation, other remedies may include an injunction to stop an ongo- ing polluting activity or prevent an imminent one. 10.2 Exemplary or Punitive Damages Damages awarded by a court are intended to be com- pensatory, and the award of exemplary/punitive dam- ages, which seek to punish for egregious wrongdoing, is the exception, not the rule. It could be possible, for example, to claim exemplary damages when a company knowingly discharges tox- ic waste onto a neighbour’s land into a neighbour’s (trespass to land) in anticipation that any compensa- tory damages would be lower than the cost of proper disposal of the waste. 10.3 Class or Group Actions Representative actions for environmental-related civil claims are theoretically possible but rare in practice
and may be used if known claimants share a common interest (eg, multiple known landowners affected by the same pollution source). The court must be satisfied that the applicant is a proper person to conduct the proceedings and that the persons represented have the same interest as the applicant. 10.4 Landmark Cases There have not been many civil cases related to envi- ronmental liability in Singapore, as environmental governance and regulation are mostly statutory and administrative, and enforced or administered by regu- latory bodies. In Animal Concerns Research & Education Society v Tan Boon Kwee [2011] SGCA 2 , the claimant engaged a contractor to construct an animal shelter. The con- tractor subsequently employed the defendant, a director of the contractor, to supervise the construc- tion. The site was to be constructed by levelling the soil on the site; however, under the defendant’s super- vision, soil from another site was brought in instead, resulting in severe soil pollution on the site. The Court of Appeal found the defendant liable in negligence to the claimant for the pollution. 11. Contractual Agreements 11.1 Transferring or Apportioning Liability Indemnities and other contractual agreements can be used to privately transfer or apportion liability for environmental damage or breaches of environmental law in Singapore. Such indemnities and agreements are commonly used in share purchase/asset purchase agreements, leases, and joint venture/construction agreements. Any private agreement to transfer or apportion does not bind a regulator seeking to enforce a statutory obligation against a statutory obligee. Neither does it prevent a third party from seeking to enforce a civil liability against the indemnified party of an indemnity or transferring party in an agreement that transfers or apportions away liability.
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