Auto Palace Pte Ltd v Sean Liew Cheng En

• Jurisdiction: Singapore
• Judge: Seah Chi Ling
• Judgment Date: 18 April 2013
• Neutral Citation: [2013] SGDC 110
• Court: District Court (Singapore)
• Docket Number: DC 2258 of 2011/K
• Published date: 09 May 2013
• Year: 2013
• Hearing Date: 30 January 2013,15 October 2012,11 September 2012,16 October 2012
• Plaintiff Counsel: Mr Ang Cheng Ann Alfonso [A.Ang, Seah & Hoe] - Plaintiff
• Defendant Counsel: Mr Yeo Kim Hai Patrick,Ms Lim Hui Ying [Khattarwong LLP] - Defendant
• Citation: [2013] SGDC 110

District Judge Seah Chi Ling: Introduction

The present action arose out of an accident which occurred during a test drive event involving a Spyker C8 Spyder SWB motor vehicle. The plaintiff was the organiser of the test drive event. The plaintiff brought the present action against the driver of the vehicle, seeking compensation for damage occasioned to the vehicle. The Plaintiff’s claim was brought both in contract and in tort.

Background Facts

The Plaintiff, Auto Palace Pte Ltd, is a limited exempt private company incorporated under the laws of Singapore. The Plaintiff is part of the Hong Seh Motor Pte Ltd (“Hong Seh”) group of companies. Both the Plaintiff and Hong Seh carry on the business of importing and distributing luxury motor vehicles.

The Defendant was, at the material time, a 22-year old undergraduate student with the National University of Singapore.

On or about 21 May 2009, the Plaintiff held a test drive event (the “Event”) involving a Spyker C8 Spyder SWB sports car at the Singapore Changi Airshow Exhibition Centre (“SCC”). The test drive unit was a two-seater, black coloured Spyker C8 Spyder SWB, with chassis number XL9AA11G36Z363150 (the “Vehicle”). The Plaintiff had loaned the Vehicle from 21 May 2009 to 9 June 2009 from Spyker of China Ltd (“Spyker China”) pursuant to a loan letter dated 20 May 2009 (the “Vehicle Loan Agreement”), for the purpose of allowing Plaintiff’s potential customers to test drive the Vehicle.

In organising the Event, the Plaintiff worked extensively with the marketing and sales department of Hong Seh, as well as an event organising company called Pit Crew. Pit Crew designed the recommended test drive route for the Event.

Mr. Martijn Schilte (“Mr. Schilte”) was the driving instructor engaged by the Plaintiff for the Event. Mr. Schilte was, at the material time, the General Manager of Spyker China. Mr Schilte had been certified by Spyker Automobielen B.V. (“Spyker BV”), the Netherlands-based manufacturer of Spyker sports cars, as an “authorised driving instructor” for, inter alia, the test drive and demonstration of Spyker vehicles with dealers, suppliers and prospective customers. Mr. Schilte reviewed the test drive route designed by Pit Crew, and made slight modifications to the route before the Event.

The Event was organised a private event for specially invited guests to test drive the Vehicle on a private track at the SCC. Participation in the Event was by invitation only.

The Defendant had not been invited to the Event but was brought by his father, Jeffrey Liew Tiong Hwa, who was an invited guest (“Mr. Jeffrey Liew”). At the request of the Defendant’s father, the Plaintiff agreed to allow the Defendant to participate in the test drive of the Vehicle, but only after the Defendant had signed a test drive form which contained, inter-alia, various provisions requiring the participant to indemnify the Plaintiff against any loss of or damage to the Vehicle during the test drive.

The Defendant did eventually sign the test drive form, albeit erroneously on the witness’ column of the form. The test drive form was handed to him by one Ms Chong Mun Ling Amanda (“Ms. Amanda Chong”) of Hong Seh, who had been deployed by the Plaintiff to assist at the Event. The Defendant also inserted his personal particulars under the particulars section of the test drive form, but omitted to insert his name and NRIC details in the blanks appearing in the bottom half of the test drive form where the indemnity provisions were found. A copy of the test drive form as executed by the Defendant was annexed at page 7 of the Agreed Bundle of Documents.

The Test Drive Event was to be conducted as follows: The participants would be greeted at the reception area, where they would be ushered to a counter and handed a blank copy of the test drive form. The test drive form was to be signed by the participants before they were allowed to commence the test drive. After the test drive form had been signed, the participant would be ushered to the test drive area to wait for his turn to drive the vehicle. Before commencing the test drive, the participant would be briefed by Mr Schilte on the capabilities of the Vehicle, and how he should drive the Vehicle. The test drive comprised of 3 laps. The first lap was a demonstration lap driven by Mr. Schilte, with the participant by his side as the front seat passenger. The first lap was to allow Mr. Schilte to demonstrate the abilities of the Vehicle to the participant, and to allow the participant to familiarise himself with the test drive route before driving the Vehicle. After the first lap, Mr. Schilte and the participant would exchange seats. The participant would drive the remaining 2 laps on his own, with Mr. Schilte as the front seat passenger, giving instructions to the participant. The test drive route included a safety area (the “PADA area”) where the track was marked by cones. The PADA area was designed and intended as a safe area where participants could, if they chose to, drive at slightly higher speeds. In the event of the Vehicle spinning out of control in the PADA area, the Vehicle would only touch the cones, without occasioning damage to the Vehicle. At the end of the 3 laps, the participant would be taken back to the lounge in the reception area.

The Accident

The Defendant’s test drive was the 3rd test drive of the day, and was carried out in accordance with the steps outlined above. All prior test drives that day were completed without any incident. In particular, the Defendant’s father, Mr Jeffrey Liew, had carried out the test drive just before the Defendant. Mr Jeffrey Liew completed his test drive without any significant issues, save that he had spun out 3 times in the PADA area and stalled the car once during his test drive.

After Mr Jeffrey Liew completed his test drive, the Defendant commenced his test drive. The Defendant was briefed by the Mr Schilte prior to the commencement of the test drive in accordance with the test drive procedures outlined above. Mr Schilte then drove and completed the first lap (i.e. the demonstration lap), with the Defendant by his side as the front seat passenger. For the second lap, the Defendant took over as driver, with Mr Schilte by his side as front seat passenger. Other than the Vehicle spinning out once at the PADA area, the second lap was uneventful.

Upon the completion of the second lap, the Defendant continued with third lap as driver, again with Mr Schilte by his side. It was not disputed that the Defendant again spun out at the PADA area once during the third lap, but managed to recover and continue with the drive. However, on the way back to the start area, whilst negotiating a series of turns at an area of the track which the parties have termed the “fast chicane”, the Defendant lost control of the Vehicle. The Vehicle spun counter-clockwise, hit the kerb and before landing back on the tarmac (the “Accident”). Neither the Defendant nor Mr Schilte was injured in the accident. However, the Vehicle sustained significant damage.

The Plaintiff’s claims

The Plaintiff claimed against the Defendant the repair costs of the Vehicle in the sum of $70,871.84. The Plaintiff relied on the indemnification provisions contained in the test drive form signed by the Defendant (the “Contract Claim”).

Alternatively, the Plaintiff claimed the sum of $70,871.84 in tort, being the loss and/or damages suffered by the Plaintiff resulting from the Accident caused solely by the negligence of the Defendant (the “Tort Claim”). The following particulars of negligence were pleaded against the Defendant: Failing to heed the advice and/or instruction of the driving instructor during the test drive; Driving at an excessive speed during the test drive; Overcorrecting and oversteering the steering wheel of the vehicle before colliding with the kerb; and Completely letting go of the steering wheel of the vehicle after hitting the kerb.

The Defendant’s defence

The Defendant resisted the Contract Claim on, inter alia, the following grounds: There was no proper incorporation of the indemnity provisions (the “Non-incorporation Argument); The test drive form was not properly executed (the “Improper Execution Argument”); Even if the indemnity provisions were incorporated, on a proper construction of the provisions, they did not apply to the facts at hand (the “Construction Argument”); and The indemnity provisions were unenforceable under the provisions of the Unfair Contract Terms Act (Cap. 396) (“UCTA”) (the “UCTA Argument”).

In relation to the Tort Claim, the Defendant raised, inter alia, the following arguments: The Plaintiff had not proven that the Accident was caused by the negligence of the Defendant (the “Negligence Argument”); and The Plaintiff was vicariously liable for the acts and omissions of the Defendant as driver as the Plaintiff retained control over the Vehicle at all times (the “Vicarious Liability Argument”).

The Defendant also asserted that the damages claimed by the Plaintiff had not been adequately proven.

My Decision

At the conclusion of the trial, I rejected all of the Defendant’s arguments and entered judgement for the Plaintiff’s claim in full, with interests and costs. The Defendant has appealed against the whole of my decision. I now give the detailed reasons for my decision.

Detailed Grounds The Contract Claim

The Plaintiff’s Contract Claim was based on the test drive form (hereinafter, referred to interchangeably as the “Test Drive Form”, or the “Indemnity Letter”) executed by the Defendant. The Test Drive Form was a short one page document which included various indemnity provisions. The key provisions of the Test Drive Form were as follows:

“Please take note that Auto Palace Pte Ltd makes no representation and shall not be held responsible for the safety, conduct or activities of [the]...