Asnah Bte Ab Rahman v Li Jianlin

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 17 March 2016
• Neutral Citation: [2016] SGCA 16
• Plaintiff Counsel: Anthony Wee (United Legal Alliance LLC)
• Docket Number: Civil Appeal No 175 of 2014
• Date: 17 March 2016
• Hearing Date: 28 May 2015
• Subject Matter: Negligence,Damages,Contributory negligence,Apportionment,Tort
• Year: 2016
• Citation: [2016] SGCA 16
• Defendant Counsel: Liew Hwee Tong Eric and Renganathan Shankar (Gabriel Law Corporation)
• Court: Court of Appeal (Singapore)
• Published date: 14 January 2017

Chao Hick Tin JA (delivering judgment of the majority consisting of Quentin Loh J and himself): Introduction

Motor accidents happen every day, and when they do, very often people can get seriously injured. Where motorists are found to have driven negligently, courts will not hesitate to impose the full brunt of criminal and civil sanctions on them. However negligent the tortfeasor may be, the law requires the extent of the victim’s right to recover damages from the tortfeasor to be modulated by the doctrine of contributory negligence. In determining the applicability of the doctrine of contributory negligence, the law requires the court to focus on the victim and ascertain whether it was within the victim’s reasonable means to prevent himself from being injured by the tortfeasor. In this connection, a victim’s entitlement to damages could and should be reduced if the danger posed by the accident, against which he failed to take reasonable precaution, was within the reasonable contemplation of the victim. This is because the omission of his contributed to the injury he suffered.

The present case involved an accident between a motor vehicle and a pedestrian that took place along a pedestrian crossing controlled by traffic lights. The pedestrian claimed that he was knocked down when the pedestrian signal was in his favour. The driver of the vehicle did not contest this and rightfully conceded on primary liability. However, the driver advances the partial defence of contributory negligence on the ground that the pedestrian could have avoided the accident by checking for approaching traffic before stepping out onto the second half of the crossing situated along a dual-carriageway. This unremarkable, straightforward set of facts generated several interesting and important questions for this court to consider, in particular, whether a pedestrian owes himself a responsibility to take care of his own safety when using a signalised pedestrian crossing and if so, the extent of such a responsibility.

The High Court judge (“the Judge”) below found that the pedestrian, Li Jianlin (“the Respondent”) was not contributorily negligent for failing to lookout for errant drivers at a signalised pedestrian crossing. The present appeal is brought by the driver of the vehicle, Asnah Binti Ab Rahman (“the Appellant”), against that decision of the Judge. At the end of the hearing, we reserved judgment to consider the matter more carefully given the public importance it assumes.

Background facts

At the time of the accident, the Respondent was a 21-year-old male National Serviceman. The Appellant was a taxi-driver. On 2 June 2011, the day of the accident, the Respondent booked out of camp at about 9pm. At 10pm, he approached a traffic-light controlled pedestrian crossing located along Bukit Batok West Avenue 5. The crossing was between Blocks 526 and 374 of that road. The Respondent approached the crossing from the pavement located at Block 526 and was making his way across towards Block 374.

Bukit Batok West Avenue 5 is a dual-carriageway road, with two lanes of traffic going in the direction of Bukit Batok West Avenue 2 and another two lanes going in the opposite direction of Brickland Road. The Appellant was travelling in the direction of Brickland Road. The road on which the Appellant was travelling curves to the left about 150m before the pedestrian crossing before straightening itself about 60–70m from the pedestrian crossing.¹ The two carriageways are divided by a 1.4m high metal barricade erected on a raised concrete base. The barricade lowers to 0.9m about 18m away from the pedestrian crossing. The Respondent made it across the first half of the crossing without incident. Just as he took his second or third step into the second half of the crossing, the Appellant’s taxi crashed into him. It was only after the collision that the Appellant realised that the traffic signal was not in her favour.

The point of impact appeared to have been close to the midway point between the front headlights of the taxi. The Appellant was travelling at about 55km/h towards the pedestrian crossing. As a result of the collision, the Appellant’s taxi windscreen was smashed. The momentum of the taxi projected the Respondent forward towards the left side of the taxi, landing him by the roadside.

At the time of the accident, the weather was fine, the road surface was dry, the traffic flow was light and the visibility was clear.

The Respondent suffered severe injuries to his head and hips as a result of the collision. He was hospitalised for close to three months. The concussion he suffered impaired his ability to recall the details of the incident except for the fact that he booked out of camp at about 9pm that night. A National University Hospital psychologist report was tendered in support of this.

At trial, only two questions were posed to the Respondent. The first was whether he remembered what clothes he wore on the night of the accident. The second was whether he remembered the colour of the clothes he wore. He answered both questions in the negative.

The Appellant concedes on primary liability, admitting that she failed to notice the red traffic signal when her vehicle was approaching the crossing. She was convicted of and sentenced for dangerous driving on 11 October 2013. She, however, takes issue with the Respondent’s conduct, arguing that the Respondent could have avoided the accident if he had checked for approaching traffic. She says that notwithstanding that the pedestrian lights were in his favour, the Respondent should still have in the circumstances, made sure that it was safe to cross the second half of the dual-carriageway.

Decision below

The trial below was bifurcated and the Judge decided only the question of liability. The Judge found in favour of the Respondent, holding that he was not contributorily negligent for the following reasons: There was no evidence whether the Respondent had looked left or right before crossing. The Respondent was hit after he had crossed more than half the breadth of the road with the pedestrian signal in his favour. Two implications arose from this situation. First, the Respondent could hardly be blamed for assuming that the vehicular traffic had already stopped, and those that have not would surely have done so. Secondly, since the traffic lights of the pedestrian-crossing had been red against vehicles in both directions of Bukit Batok West Avenue 5 for so long, the Appellant had no excuse for not having enough time to react. This is not a case in which the Respondent was jaywalking or crossing at a place where he ought to have a heightened sense of caution.

Parties’ submissions Appellant’s arguments

The Appellant argues that any prudent person crossing the road should keep a proper lookout to ensure his own safety, regardless of whether he is crossing the road with the aid of traffic lights or a zebra crossing. The act of checking for approaching traffic is a matter of safeguarding one’s own safety as it is reasonably foreseeable that there may be drivers flouting traffic rules, whether negligently or intentionally. The duty to do so is embodied in various provisions of the Highway Code (Cap 276, R 11, S8/75) (“the Highway Code”).

The Respondent obviously failed to check for approaching traffic before crossing the second half of the road. The Appellant’s taxi was approaching the crossing at 55 km/h. Had the Respondent looked to his left, he would have realised the Appellant’s taxi was unlikely to be able to stop in time.

The Respondent should be held liable for contributory negligence and the damages recoverable should be reduced by 35% to reflect his blameworthiness.

Respondent’s arguments

The Respondent argues that pedestrians have no duty to continuously look left and right when the signal lights are already in their favour. Furthermore, the Respondent was only knocked down after he had crossed more than half the breadth of the road (ie, the first half of the road and an additional two to three steps of the second half).

The Respondent argues that even if there were such a duty, the Appellant’s case should be disallowed on the basis that the Appellant failed to put her case to the Respondent when he was in the witness box, and consequently, the Respondent was not given a chance to respond to the Appellant’s case.

Issue before this Court

The main issue in this appeal is whether the Respondent was contributorily negligent: did the Respondent have a duty to guard himself against the Appellant’s wrongful driving, and if so, did he discharge that duty of his with due care and diligence. If the Respondent is found to have been contributorily negligent, the issue of apportionment arises: to what extent should damages due to him be reduced on account of his contributory negligence?

Basic principles of contributory negligence

In the introduction to our judgment, we noted that a victim’s right to recover damages from a tortfeasor has to be modulated by the extent to which he could himself have prevented the accident from happening. The doctrine of contributory negligence gives effect to this position. Even though the defendant is found to have been negligent, contributory negligence provides him a partial defence by reducing the quantum of damages payable to a claimant where the claimant failed to take due care for his own safety and thus caused loss to himself. In determining contributory negligence, one looks solely at the conduct of the claimant in the prevailing circumstances of each case (Charlesworth & Percy on Negligence (Sweet & Maxwell, 13th Ed, 2014) (“Charlesworth & Percy on Negligence”) at para 4-03). Contributory negligence connotes a failure by the claimant to take reasonable care for his own personal safety in all the circumstances prevailing at the time of the accident, such that he is blameworthy to the...