Ang Eng Lee and Another v Lim Lye Soon

• Judge: A P Rajah J
• Judgment Date: 29 August 1986
• Neutral Citation: [1986] SGCA 11
• Citation: [1986] SGCA 11
• Defendant Counsel: Benedict Chan Tuck Kiang (Goh Poh & Partners)
• Published date: 19 September 2003
• Plaintiff Counsel: V Ramayah (Wee Ramayah & Partners)
• Date: 29 August 1986
• Docket Number: Civil Appeal No 42 of 1984
• Court: Court of Appeal (Singapore)
• Subject Matter: Contributory negligence,Personal injury case,Father's loss and expenses,Compensation and damages,Whether father had independent cause of action against defendant,Joinder,Father joined as party to action,Civil Procedure,Whether father had independent cause of action,Parties,Infant claimant,Damages,Negligence,Causation,Infant knocked down by lorry,Apportionment of liability,Injury to infant,Tort

The first plaintiff, an infant, was knocked down and injured by a motor lorry, no YA 9087D, at Sungei Tengah Road on 15 January 1981. The lorry at the material time was driven by the defendant. Suing by his father and next friend, he brought this action against the defendant claiming damages for negligence; joined as the second plaintiff is his father who claimed damages for loss and expenses incurred on account of the injuries sustained by the first plaintiff. At the time of the accident, the first plaintiff was eight years old and he lived with his parents at 96 Sungei Tengah Road in Chua Chu Kang. He said that on that day, at about 11.00am, he left his house to catch a bus to go to school. He had to cross the road and before he crossed he looked at both sides, left and right, and saw no vehicle approaching; he then walked across the road. When he reached the other side of the road he was knocked down and lost consciousness. He said that when he was knocked down he was standing on the grass verge and not on the road; he was not facing the lorry and the nearside front part of the lorry hit him.

The appeal arises from a claim made in the district court by the appellants against the respondent for damages for negligence arising out of a road accident in which the first appellant, a young boy, was knocked down and injured by a lorry driven by the respondent. At the conclusion of the hearing in the district court, on the two versions of the accident before him, that of the first appellant and the respondent, the learned district judge found that the respondent`s version was the more probable one and dismissed the appellants` claim. Against that decision, the appellants appealed to the High Court. T Kulasekaram J also dismissed the appeal, this time on the ground that the respondent was not travelling at an excessive speed at the time of the accident and was not in any way negligent. It is against this decision that the appeal has been brought.

The claims were resisted by the defendant; he denied any negligence on his part. He said that on that day he was driving his lorry along Sungei Tengah Road; he was on the left side of the road and was travelling slowly - 40 mph, he said. As he was approaching the spot, where the accident took place, he suddenly saw a boy, iethe first plaintiff, rushing across the road followed by a girl; the first plaintiff was only 11/2 m away from him. He applied his brakes and swerved the lorry to the left, but was unable to avoid colliding with the first plaintiff. According to him, the right front part of his lorry hit the first plaintiff.

The case was tried before the district court and at the conclusion of the hearing, the learned district judge held that the defendant was not negligent and dismissed the claim. Against that decision the plaintiffs appealed to the High Court which dismissed the appeal; the learned judge held that the defendant was not travelling at an excessive speed at the time of the accident and was not in any way negligent. Against that decision this appeal is now brought.

The main thrust of the appeal is directed towards the findings of fact made by the learned district judge. The learned district judge recounted the two versions of the accident as given by the first plaintiff and the defendant respectively, and then posed the following questions: `The question was who was negligent? Was it the infant plaintiff or the defendant?` The learned district judge then proceeded with his examination of the first plaintiff`s and the defendant`s versions of the accident and came to the conclusion that the defendant`s version of the accident on the balance of probabilities was true and on that basis he found that the defendant was not negligent.

On this approach adopted by the learned district judge in arriving at his finding we have two observations. First, it seems to us that it is more appropriate to approach the matter with the question: was the defendant negligent? If the defendant was not negligent, then that would conclude the matter. If the defendant was negligent, the next question is: was there any contributory negligence on the part of the first plaintiff? Secondly, in a case such as the present one, it is not really a question of accepting the defendant`s version of the accident in preference to that of the first plaintiff. The first plaintiff, at the time of the accident, was only eight years old, and at the time of the trial was about ten years old. Obviously, not much weight really can be attached to his evidence as regards how the accident happened; in particular, his evidence that he was knocked down when he was on the grass verge and that it was the front nearside of the lorry that hit him could not be accepted, in view of the incontrovertible evidence that the front offside of the lorry was damaged and that blood stains were found on the road. As a matter of inference, the first plaintiff must have been hit by this part of the lorry and at the time of the impact he must have been on the road. However, having rejected the first plaintiff`s evidence, the learned district judge in our view should then have considered the evidence of the defendant and other evidence, both sworn and documentary, to determine whether the defendant was negligent. Now, the really substantive part of the evidence of the defendant is the following, given in examination-in-chief:

On 15 January 1981 I was driving lorry No YA 9087D along Sungei Tengah Road going towards Chua Chu Kang. I was on the left side of the road. I don`t know how far from the grass I was driving. I horned. I saw nobody in front. I was travelling at 40mph. I never looked. I don`t know whether on my lorry it`s kmh or mph. I was travelling slowly. I went up. I saw a boy. I could not - but I swerved, went to left to the grass. The boy ran. I can`t see. He ran very fast. I could not see. He ran from here. (Indicates from right to left.) When the boy ran I was about this distance away.

( Court: About 11/2 metres away). When I saw boy running I applied my brakes. I could not stop. I swerved to left and went to the grass. I turned fast. I applied brakes and turned. When I hit the boy, I was already on the grass.

(Witness is asked to draw rough sketch. Witness draws sketch - admitted and marked D5.)

I hit the boy in front on the right front of my vehicle. The right front of my lorry was damaged. (Witness is shown D1 to D3.) The front right portion of my lorry, the van, hit the boy above the lights. When lorry stopped, I came down. I saw a small girl, I think the boy`s sister. This girl was running behind the boy.

Purely on the basis of the defendant`s evidence the learned district judge found that the defendant was not negligent. He said:

Accepting the defendant`s evidence as correct, I could not see how he could be said to be negligent. He was not speeding. He said he negotiated a bend before reaching the spot where the collision occurred. His view to the front was obstructed by thick vegetation on the side of the road and he sounded his horn. All of a sudden the infant plaintiff dashed across the road about 11/2 metres away to his front. He jammed on his brakes and swerved left to avoid colliding into the infant plaintiff. Having regard to the circumstances what the defendant did was what that could be expected of a reasonable driver. He was certainly not negligent.

The defendant`s evidence is not the whole of the evidence to be considered. There is the evidence of PW1, the police sergeant, who arrived at the scene soon after the accident. He took measurements and drew a sketch plan of the scene of the accident which was accepted without any challenge. According to him, at the stretch of road where the accident took place there is a slight bend to the left; the road slopes slightly upwards and then downwards. The sketch plan shows a narrow road with a width of about 4m 10cm and also shows long tyre marks starting from points `J` and `K` leading to the point `H` where the vehicle came to a standstill and the length is 17m 20cm. The telltale sign here is clearly the tyre marks, which are indicative that the defendant must have seen the first plaintiff and applied his brakes at the spot approximately just before his lorry reached the points `J` and `K` ; it is from these points the tyre marks appear. The lorry did not appear to have stopped until it reached the points `G` and `H` with about three quarters of its length on the bushes. According to PW 1, the bushes are about two to three feet high. It is clear to us that the bushes played an important part in bringing the lorry to a halt.

On this evidence, it is necessary to consider the question whether the defendant was driving the lorry at an excessive speed in the circumstances. According to him, he was driving the lorry at 40mph though he subsequently attempted to qualify it by saying that he did not know whether the speedometer in his lorry recorded the speed in kilometre or mile; but he is a driver by occupation. At any rate, this speed was accepted by his counsel in his closing submission. The learned district judge found that the defendant was not speeding. It is not clear to us, however, whether the learned district judge was of the view that the lorry travelling at 40mph was not speeding or that the lorry was travelling at a speed less than 40mph and therefore was not speeding. Whatever might be the speed at which the lorry was travelling, the question still is whether it was travelling at an excessive speed in the circumstances. The stretch of road is a rural road with a width of four m ten cm and with bushes of two to three feet high on the left and trees and vegetables on the right and has a...