Andy Tan Poh Weng (formerly known as Tan Poh Kim) v Jes Lee

• Jurisdiction: Singapore
• Judge: Shen Wanqin
• Judgment Date: 19 February 2024
• Neutral Citation: [2024] SGDC 34
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 1276 of 2016 (Summons No 2914 of 2023)
• Hearing Date: 31 January 2024
• Citation: [2024] SGDC 34
• Year: 2024
• Plaintiff Counsel: Ms Lew Chen Chen and Ms Wong Yan Ying (Chambers Law LLP)
• Defendant Counsel: Mr Wee Anthony and Mr Koh Keh Jang Fendrick (Titanium Law Chambers LLC)
• Subject Matter: Evidence,General right to adduce relevant evidence,Specific limits thereto,How balance ought to be struck between general right and specific limits
• Published date: 24 February 2024

Deputy Registrar Shen Wanqin: Introduction

The right to call witnesses and to adduce relevant evidence is an essential feature of the adversarial system, which provides the framework for the functioning of our justice system. While it is not an absolute right, it is a fundamental right that is of cardinal importance (see Auto Clean ‘N’ Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] 2 SLR(R) 427 (“Auto Clean”) at [12] – [13]). As such, this right should not be easily abrogated.

The overarching issue in this case is whether the plaintiff should be denied the right to call an expert witness and to adduce the relevant evidence (collectively, “the right to adduce evidence”), and if so, on what basis. In deciding this issue, a balance must be struck between the right to adduce evidence, and the need to ensure that the opposing party is not irremediably prejudiced by the admission of the evidence.

The plaintiff was the driver of a van that was hit in the rear by a bus driven by the defendant, in an accident that occurred on 26 May 2010 (“the 2010 accident”). This legacy motor accident case was commenced in 2011. The claim has since been settled with a consent judgment in which liability was apportioned 95% against the defendant and 5% against the plaintiff. The material facts and procedural history are set out in Tan Poh Weng Andy v Lee Jee [2013] SGHC 234 at [2] – [7].

Following several adjournments of the hearing for assessment of damages, the plaintiff made the application in DC/SUM 2914/2023 (“SUM 2914”) on 7 December 2023 to adduce further evidence, including: to call Dr S R E Sayampanathan (“Dr Nathan”) as the plaintiff’s expert witness and to adduce his medical report as evidence; and to adduce a fifth affidavit of evidence-in-chief (“AEIC”) which outlines the plaintiff’s account of the events that transpired at the medical re-examination conducted by the Defence’s expert, Dr Chang Haw Chong (“Dr Chang”) in 2013.

The plaintiff invoked his right to adduce evidence and explained how the evidence sought to be adduced was relevant and necessary. The defendant objected to the application on the basis that the evidence sought to be adduced was frivolous, repetitious, irrelevant, and scandalous. As the defendant failed to produce any supporting evidence and opted not to elaborate on his assertions, I rejected his bare assertions and allowed the plaintiff’s application. The defendant, dissatisfied with my decision, appealed on 14 February 2024.

Issues

The two issues that form the subject of the appeal are as follows: whether the plaintiff should be permitted to call Dr Nathan as a witness and to adduce his report; and whether the plaintiff should be permitted to tender a fifth AEIC, explaining the events that transpired at the medical re-examination conducted by Dr Chang.

After analysing the issues, I resolved both issues in the plaintiff’s favour. I now set out the grounds of my decision.

Applicable Legal Principles

The starting point of the analysis is that every litigant has a general right to call witnesses and to bring all relevant evidence to the court’s attention (Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] 3 SLR 110 (“Basil Anthony”) at [24] – [26] and Auto Clean at [12] – [13] and [17]). Hence, the courts are usually slow to deny a party’s application to adduce evidence, unless the evidence sought to be admitted is irrelevant (Basil Anthony at [25]), or the admission of the evidence will result in serious and irremediable prejudice (Auto Clean at [12]). None of these grounds apply in this case.

Issue 1: Should the plaintiff be allowed to call Dr Nathan as a witness and to adduce his report?

I allowed the plaintiff to call Dr Nathan as a witness and to adduce his report, because I found Dr Nathan’s evidence to be relevant to several material issues that would feature in the assessment of damages hearing. These issues include: (1) whether the plaintiff’s condition of spondylosis was pre-existing; (2) whether the 2010 accident caused or aggravated his condition of spondylosis and other intervertebral disc-related problems; (3) whether his prevailing back and disc-related problems were caused by the migration of the interbody cages implanted during a corrective surgery; and (4) whether the migration was due to any incorrect sizing or placement of the cages.

Besides giving a cogent opinion on the material issues, Dr Nathan also indicated the areas in which he agreed (see, for example, see the exhibit marked “ATP-2” (“exhibit ATP-2”) at [2.6] – [2.7], which was annexed to the plaintiff’s supporting affidavit in SUM 2914) or disagreed (see, for example, exhibit ATP-2 at [4.3] – [4.4]) with both parties’ existing experts, the questions which he was not in a position to respond to (see, for example, exhibit ATP-2 at [4.7.1] – [4.7.3]), and the reasons for his opinion. Notably, Dr Nathan has been a practising consultant orthopaedic surgeon since 1998 and has given evidence on back-related injuries in several other cases (see, for example, De Souza Lionel Jerome v Attorney-General [1992] 3 SLR(R) 552 and Gannison s/o Varimuthu v Choa Beng Teck [2023] SGDC 92).

I was therefore convinced that Dr Nathan would be qualified to give expert evidence on the plaintiff’s back-related injuries and that his evidence on the abovementioned issues would likely assist my findings on, amongst other matters, the type and extent of back-related injuries caused by the 2010 accident, and consequently, the quantum of damages. On these basis, Dr Nathan’s evidence qualifies as relevant facts under s 47(1) of the Evidence Act (Cap 97, 1997 Rev Ed).

The defendant did not dispute the relevance of Dr Nathan’s evidence. Instead, he asserted on the one hand that Dr Nathan’s evidence was “frivolous and repetitious” (“the defendant’s assertions”) (see the Defendant’s Skeletal Submissions dated 5 January 2024 (“DA”) at [7]), and yet argued on the other hand that it would be “just for the Defendant to be entitled to call another witness on this issue” if the court allowed the plaintiff to call Dr Nathan as an expert witness (DA at [8]). These assertions are contradictory in nature. If the defendant truly believed that Dr Nathan’s evidence would be frivolous or repetitious and should be rejected, it did not lie in his mouth to argue that he would be entitled to call another expert (DA at [7]), especially since his expert would similarly be testifying on the same issues.

Be that as it may, having considered the issues below as to (1) whether the court can, in principle, deny a party the right to adduce evidence if the evidence sought to be adduced is frivolous or repetitious, and (2) whether the evidence which the plaintiff sought to adduce was truly frivolous or repetitious, I found that there was no basis for the defendant’s assertions and therefore rejected them.

Sub-Issue 1: Can the court deny a party the right to adduce evidence if the evidence is frivolous or repetitious?

In Basil Anthony at [25], the High Court, while recognising that the general right to adduce relevant evidence is subject to specific limits, did not purport to set out an exhaustive list of limits that can be placed on the right. Instead, the High Court only set out those limits which it considered to be germane and relevant to the issues at hand. It follows that the right can be subject to other limits that have not thus far been enumerated nor expounded in case law. This means that the right to adduce evidence can, in principle, be denied when the evidence sought to be adduced is frivolous or repetitious.

First, as a matter of principle, the court should generally exercise its discretion to reject frivolous evidence. The ordinary meaning of the word “frivolous” is “trivial”, “trifling” or “unimportant” (Azman bin Jamaludin v Public Prosecutor [2012] 1 SLR 615 (“Azman”) at [56]). In the context of court proceedings, a frivolous court application would be one that,...