Chang Tong Seng v Lim Tai Kwong t/a Da Li Contractors (Loke Keeng Kwan, Third Party)
| Jurisdiction | Singapore |
| Judge | Thian Yee Sze |
| Judgment Date | 19 March 2007 |
| Neutral Citation | [2007] SGDC 74 |
| Court | District Court (Singapore) |
| Published date | 07 May 2007 |
| Year | 2007 |
| Plaintiff Counsel | Paul Yap (Rayney Wong & Eric Ng) |
| Defendant Counsel | Thomas Lei (Lawrence Chua & Partners) |
| Citation | [2007] SGDC 74 |
| 19 March 2007 |
Judgment reserved. |
District Judge Thian Yee Sze:
1 This was a trial on a preliminary issue in an action for damages arising from a road traffic accident in which the plaintiff was injured. The accident occurred on 21 June 2001. The plaintiff filed the writ of summons on 21 July 2004, three years and one month after the accident. The defendant subsequently filed a third party notice against another driver involved in the collision, but for the purposes of the trial before me, only the plaintiff and the defendant were involved.
2 The defendant’s first line of defence was that the plaintiff’s action was barred by section 24A(2)(a) of the Limitation Act (Cap 163) (“the Act”). In his reply, the plaintiff averred in paragraph 2 that:
.. the material facts relating to the Plaintiff’s causes of action were or included facts of a decisive character which were outside his knowledge, actual or constructive, until a date which was not earlier than 3 years before the date on which this action was brought.
The plaintiff claimed that he did not have knowledge of the defendant’s identity until some time after 21 July 2001, from which point the limitation period would and should run, but definitely not before 21 July 2001.
3 This established the background of the parties’ dispute which they wanted the court to decide as a preliminary point – whether the plaintiff’s action was time-barred by virtue of the fact that it was commenced more than three years after either the date when the cause of action arose or the date when the plaintiff had actual or constructive knowledge of the identity of the defendant. If the plaintiff had actual or constructive knowledge of the defendant’s identity before 21 July 2001, parties accepted that the action would be time-barred. Conversely, if he had actual or constructive knowledge of the defendant’s identity on or after 21 July 2001, the action would be commenced within the limitation period.
The accident
4 Three vehicles (not including the plaintiff’s employer’s lorry, YF 9547C, which was stationary) were allegedly involved in the accident. The plaintiff was an assistant foreman of Yu Yee Engineering Pte Ltd. The defendant was the employer of one Lim Tai Hwee, who worked as a driver. According to the statement of claim, Lim Tai Hwee, who was driving a lorry, YH 175R, at the material time and turned from a minor road (Fish Farm Road 2) into a major road (Tampines Road), failed to give way to a car, SCH 2380L, which was travelling along Tampines Road. This caused a collision between the lorry and SCH 2380L, which in turn caused SCH 2380L to collide into another car, SBW 2388Z. As a result, the drivers of both cars lost control of their vehicles, and either one or both of the cars knocked down the plaintiff as he stood beside his employer’s lorry in an area cordoned off by traffic cones along Tampines Road. In a semi-conscious state, the plaintiff was rushed to hospital by ambulance. One of his colleagues, Rokon, was also injured.
Application of section 24A(2) of the Act
5 Section 24A(2)(b) of the Act provides an alternative to section 24A(2)(a) in respect of the calculation of the time period within which an action for personal injuries is to be brought. Section 24A(2)(b) states that such an action is to be brought:
(b) 3 years from the earliest date on which the plaintiff has the knowledge required for bringing an action for damages in respect of the relevant injury, if that period expires later than the period mentioned in paragraph (a)
(emphasis mine).
Section 24A(4) defines the requisite “knowledge” within the meaning of the section 24A as follows:
(4) In subsections (2) and (3), the knowledge required for bringing an action for damages in respect of the relevant injury or damage (as the case may be) means knowledge —
(a) that the injury or damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;
(b) of the identity of the defendant;
(c) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant; and
(d) of material facts about the injury or damage which would lead a reasonable person who had suffered such injury or damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(emphasis mine)
6 As the plaintiff’s counsel put it in his closing submissions, the sole issue at the trial was whether the plaintiff had the knowledge required in section 24A(4)(b), ie as to the identity of the defendant, prior to 21 July 2001. It is apparent that the “knowledge” imputed to the plaintiff in the context of section 24A refers not only to actual knowledge but also to constructive knowledge. To this end, section 24A(6) states that:
(6) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire —
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek.
(emphasis mine)
7 Before I delve into the principles which guide the application of section 24A(2)(b), I should first deal with the defendant’s submission that section 24A(2)(b) is not applicable to the present action as the plaintiff’s claim is not one which involves a latent injury or cause, which is what the subsection applies to. In support, the defendant’s counsel cited the Court of Appeal’s decision in Spandeck Engineering (S) Pte Ltd v China Construction (South Pacific) Development Co Pte Ltd
… s 24A typically covers actions in respect of latent injuries and damage caused by latent defects (emphasis mine).
The Court did not, by virtue of the above quote, circumscribe the applicability of the section to only such cases, but merely opined that actions in respect of latent injuries and damage caused by latent defects are typical kinds of actions in which section 24A is usually resorted to. In that case, which was a claim arising from a breach of a construction contract, the Court of Appeal made a finding of fact that the appellants clearly had the requisite knowledge for bringing an action from the time of breach of contract although they may not have had knowledge of what the exact amount of damages would be. As such, section 24A(3) (the wording of which is pari materia to section 24A(2), save that it applies to actions not referred to in section 24A(2)) of the Act did not apply.
8 Defendant’s counsel also referred the court to the Minister for Law, Professor S Jayakumar’s remarks at the Second Reading of the Limitation (Amendment ) Bill. Professor Jayakumar gave the justification for the proposed amendments (which included the new section 24A), which was to prevent injustice in certain cases, especially in cases where the aggrieved party did not have the requisite knowledge to commence an action at the time the cause of action accrued. It would be useful to set out the relevant passage from Hansard:
This amendment is necessary because under the present law, the limitation period for legal actions runs from the time the damage actually occurred even if the plaintiff did not know or could not reasonably have known about the damage. This can, of course, cause injustice and problems, especially in building construction cases where latent defects may not be discoverable until after the limitation period has expired. In such cases, the plaintiff, or the aggrieved party, is then left without any legal recourse.
…
Sir, the Bill before us amends the Limitation Act along the lines of the United Kingdom Limitation Act 1980 and the United Kingdom Latent Damage Act 1986. What it does is to extend the limitation periods for personal and non-personal injury claims by providing an alternative starting date of the limitation period, ie, the date the aggrieved person has knowledge of the damage. The limitation period would be computed from the date that expires later.
However, nowhere in Hansard does it state that section 24A applies only to cases involving latent defects, damage or injuries. Section 24A(1) clearly states that the section shall apply “to any action for damages for negligence, nuisance or breach of duty” without any accompanying proviso. Section 24A (which is pari materia to sections 11 and 14 of the United Kingdom Limitation Act 1980 (“UK Limitation Act”)) provides an exception to the general rule in section 6 of the Act, which stipulates that actions founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. Under section 24A(2)(a), the period or limitation is reduced from six to three years where the damages claimed consist of or include damages in respect of personal injuries to the plaintiff or any other person”. Both parties did not dispute that the three-year limitation period (as opposed to the six-year limitation period under section 6) applied in this particular case. The issue was whether section 24A(2)(b) applied to extend the limitation period. It was accepted by counsel that section 24A(2)(a) applies to all personal injury actions (regardless of whether the injury is patent or latent, so to speak). It would thus be illogical to argue in the same breath that section 24A(2)(b) does not apply to all such actions. A doubt may linger in one’s mind as to the extent of the applicability...
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