Ari bin Abdullah (by his committee of person and estate, Sariah bte Tarmon and another) v Ong Chwee Siew (Farida bte Umar (administratrix of the estate of Mohd Hussin bin Ismail, deceased) (third party)

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 29 January 2007
• Neutral Citation: [2007] SGHC 15
• Plaintiff Counsel: N Kanagavijayan (Kana & Co),Shanmugam Manohar (K Krishna & Partners)
• Published date: 31 January 2007
• Court: High Court (Singapore)
• Defendant Counsel: Ramasamy Chettiar (Acies Law Corporation),P E Ashokan (KhattarWong)
• Subject Matter: Evidence,Admissibility of evidence,Defendant convicted in criminal trial of causing death and serious injury due to his negligent driving,Whether his convictions were relevant in the present civil proceedings,Whether the statement of facts in the criminal proceedings were admissible as evidence in the present proceedings,Tort,Negligence,Contributory negligence,Plaintiffs claiming against defendant for negligent driving resulting in serious injury and death,Whether the defendant could seek contribution from the two plaintiffs on the ground of contributory negligence

29 January 2007 Judgment reserved.

Tan Lee Meng J:

1 Suit Nos 377 and 328 of 2006 concern a motor accident (“the accident”) on 26 February 2005 at the junction of Woodlands Road and Sungei Kadut Avenue, in which a motor cycle collided with a lorry. The motor-cyclist, Mr Mohd Hussin bin Ismail (“Hussin”), was killed while his pillion rider, Mr Ari bin Abdullah, (“Ari”), was so badly injured that he is now incapable of managing his own affairs. Suit No 377 of 2006 was instituted by Ari’s parents, who form the Committee of Persons having charge of his affairs, and Suit No 328 of 2006 was instituted by Hussin’s wife and the administratrix of his estate, Mdm Farida bte Umar (“Farida”). The defendant in both these suits is the driver of the lorry in question, Mr Ong Chwee Siew (“Ong”).

2 Ong joined the plaintiff in Suit No 328 of 2006 as a third party in Suit No 377 of 2006, seeking a contribution for the damages payable to Ari on the ground of contributory negligence.

Background

3 On 26 February 2005, at about 7.55 am, Ong drove his company’s lorry, bearing registration number XB 8720K along Woodlands Road towards the direction of Upper Bukit Timah Road. At the signalised T-junction of Woodlands Road and Sungei Kadut Avenue, he made a right turn into Sungei Kadut Avenue.

4 While turning right, Ong’s lorry had a head to side collision with Hussin’s motor cycle. As has been mentioned, Hussin was killed while his pillion rider, Ari, sustained serious injuries. Ong’s lorry also collided with another lorry bearing registration number XB 6782S, which was driven by one Mr Goh Chye Lye (“Goh”).

5 At the time of the accident, the weather was fine, the road surface was dry and visibility was clear. The signal lights at the T-junction did not malfunction and the traffic flow at the junction was moderately heavy.

6 After investigations had been completed, the police were satisfied that Ong had been negligent in that he failed to stop and give way to on-coming vehicles having the right of way before he made a right turn from Woodlands Road into Sungei Kadut Avenue. Ong was charged with a number of offences in relation to the accident.

7 In DAC No 044419/2005, he was charged under section 304A of the Penal Code (Cap 224, 1985 Rev Ed) (“the Penal Code”) for causing Hussin’s death. The charge was as follows:

[T]hat you, on 26 February 2005, at about 7.55 am, at the signalised T- junction of Woodlands Road and Sungei Kadut Avenue, Singapore, being the driver of motor lorry XB8702, did cause the death of a motor cyclist, namely one Mohd Hussin bin Ismail, male/aged 32 years old, by doing a negligent act not amounting to culpable homicide, to wit, by failing to stop and give way to on-coming traffic having the right of way whilst you were making a right turn, thus the vehicle you were driving encroached into the path of one motor cycle, bearing registration No FN9635P, which was ridden by the deceased, who was proceeding from the opposite direction, causing a head to side collision between the said motor cycle and your vehicle and consequently resulting in the deceased’s death and you have thereby committed an offence punishable under Section 304A of the Penal Code, Chapter 224.

8 In DAC No 044420/2005, Ong was charged under s 338 of the Penal Code for doing an act so negligently as to endanger human life and resulting in the causing of grievous hurt to Ari.

9 Ong also faced a third charge under section 65(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“Road Traffic Act”) for driving without reasonable consideration for other persons using the road.

10 Ong pleaded guilty to both the charges under the Penal Code. The remaining charge under s 65(b) of the Road Traffic Act was taken into account for the purpose of sentencing. Ong was fined $9,000 for causing Hussin’s death and $1,000 for causing grievous hurt to Ari. He was also disqualified from holding or obtaining a driving licence for all classes of motor vehicles for six years.

The trial

11 The plaintiffs in both Suit Nos 377 and 328 of 2006 asserted that Ong is wholly responsible for the accident. On the other hand, Ong claimed that Hussin shouldered part of the blame for the accident.

12 For the purpose of determining whether Ong is wholly to blame for the accident, his convictions under s 304A for causing Hussin’s death and under s 338 of the Penal Code for causing serious injury to Ari are relevant in the present proceedings in view of s 45A of the Evidence Act (Cap 97, 1999 Rev Ed) (“the Evidence Act”), which reversed the rule in Hollington v F Hewthorn and Company, Limited [1943] 1 KB 587.

13 Section 45A, which was extensively discussed by Andrew Phang J (as he then was), in Ong Bee Nah v Won Siew Wan (Yong Tian Choy, Third Party) [2005] 2 SLR 455, provides as follows:

Relevance of convictions and acquittals:

45A—(1) Without prejudice to sections 42, 43, 44 and 45, the fact that a person has been convicted or acquitted of an offence by or before any court in Singapore shall be admissible in evidence for the purpose of proving, where relevant to any issue in the proceedings, that he committed (or, as the case may be, did not commit) that offence, whether or not he is a party to the proceedings; and where he was convicted, whether he was so convicted upon a plea of guilty or otherwise.

(2) A conviction referred to in subsection (1) is relevant and admissible unless --

(a) it is subject to review or appeal that has not yet been determined;

(b) it has been quashed or set aside; or

(c) a pardon has been given in respect of it.

(3) A person proved to have been convicted of an offence under this section shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence. [emphasis added]

14 Reference must also be made to s 45A(5) of the Evidence Act, which provides that where relevant “any document containing details of the information, complaint, charge, agreed statement of facts or record of proceedings on which the person in question is convicted shall be admissible in evidence”. In this context, Ong admitted that the Statement of Facts presented to the court by the prosecution in relation to the criminal charges faced by him were true. The following parts of the Statement of Facts merit attention:

6 Investigation revealed that … the accused did not stop to give way to on-coming vehicles (having the right of way) travelling from the opposite direction along Woodlands Road. This resulted in a head to side collision with one motor cycle … ridden by the deceased and his pillion rider….

16 The accused person was therefore negligent to wit, by failing to stop...