Some Comparative Observations’ by Yen Jean Wee, (University of Cambridge). In a useful article, she draws the attention to the decision of the United Kingdom Supreme Court in Armes20 which was decided shortly after the Singapore Court of Appeal’s decision in Ng Huat Seng v Munib Mohammad Madni.21 This case involved the physical and sexual abuse of a child (the claimant) by foster parents with whom the local authority had placed her while she was committed to its care. The issue was whether the duty to care for the child was delegable or non-delegable, and whether in any case the local authority was vicariously liable for the acts of the foster parents. The Supreme Court held that the local authority was vicariously liable for the torts committed by the foster parents, but that it had not breached a non-delegable duty of care owed to the child. These are distinct legal doctrines with different incidents and different rationales. Yen Jean suggests that ‘It is also difficult to know whether, on similar facts, Singapore’s courts would arrive at the same conclusion as that in Armes. The cases in which issues of vicarious liability and non-delegable duties have arisen in Singapore have (fortunately) not involved facts similar to Armes and the line of abuse cases preceding it.’ This suggestion appears to refer to the finding on vicarious liability and not delegability. It is suggested that on the basis of reasonable redistribution of risks and capacity to pay damages, most practitioners would not find it difficult to give an answer to this question if a similar fact situation were to arise. Muhammad Hasif (University of Southampton) tackles the vexed issue of quantifying unquantifiable damages in his essay ‘The Problem with Quantification of Unquantifiable Damages for Breach of Contract’. The general principle in awarding damages is to put the injured party in a position as if the contract had been carried out. Damages are compensatory in nature. However, there are many types of contracts where it is difficult if not impossible to ascertain the damages for the loss. Two models have been applied by the courts. The first is the Wrotham Park Damages Model, named after the case of Wrotham Park Estate Co Ltd v Parkside Homes Ltd22 where it was reasoned that the court could award damages amounting to what the parties would have negotiated for to release one party from the contractual obligations. Singapore courts have considered this model in Clearlab v Ting Chong Chai23, JES International Holdings Ltd v Yang Shushan,24 and PH Hydraulics & Engineering Pte Ltd v Airtrust (HK) Ltd25. This model has certain weaknesses which were pointed out by the United Kingdom Supreme Court in MorrisGarner v One Step (Support) Ltd.26 In this case, the general principle for contract damages to put the injured party in a position as if the contract had been carried out was reaffirmed. Damages based on a breach of contract must be on legal right and not the courts’ discretion. The second model is the Loss Amenities model approved in Ruxley v Forsyth,27 where the court reasoned for damages based on a ‘loss of amenities’. Hasif thoughtfully suggests a framework for both models to operate. Where the breach involves positive obligations, the performance of which has a subjective value to the other party, the courts should follow Ruxley for loss of amenities. Where the breach involves restrictive obligations, the courts should apply the Wrotham Park model as there is no way to quantify the injured party’s expectation or reliance loss based on hypotheticals and opportunity loss, in cases where the contractual obligation is to not act in a certain way, limited to cases where the breach takes away the right of the injured party as stipulated by the terms. He may be pleased to know that in Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua,28 the Singapore Court of Appeal confirmed Wrotham Park damages are applicable in Singapore, and that their normative basis is compensatory in nature, although descriptively restitutionary in a sense. The Court further stated that such damages can only be awarded if three requirements are satisfied, one of which is that the obligation breached must be a negative covenant. In ‘“Sweat of the Brow” to the “Spark of Creativity”’, Glenn Chua (University of Bristol) discusses the decision of the Singapore Court of Appeal in Global Yellow Pages Ltd v Promedia Directories Pte Ltd29 where the Court held, 20
[2017] UKSC 60.
21
[2017] SGCA 58.
22
[1974] 1 WLR 798.
23
[2014] SGHC 221.
24
[2016] SGHC 52.
25
[2017] 2 SLR 129.
26
[2018] UKSC 20.
27
[1996] 1 AC 344.
28
[2018] SGCA 44.
29
[2017] SGCA 28.
9