Chen Qingrui suing by her father and next friend Tan Kok Kiong v Phua Geok Leng

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 30 March 2001
• Neutral Citation: [2001] SGHC 64
• Court: High Court (Singapore)
• Published date: 14 March 2013
• Year: 2001
• Plaintiff Counsel: Liew Teck Huat and D Vivekananda (Niru & Co)
• Defendant Counsel: N B Rao and Anand Kumar (B Rao & KS Rajah)
• Citation: [2001] SGHC 64

JUDGMENT:

Cur Adv Vult

1. The plaintiff, Ms Chen Qingrui, who was hit by a car driven by the defendant, Ms Phua Geok Leng, sued Ms Phua for negligence. As the injuries sustained by Ms Chen in the accident were so severe that she is now unable to comprehend what is happening around her, these proceedings were instituted by her father on her behalf. Ms Phua asserted that she was not negligent and that the accident occurred because Ms Chen failed to have any regard for her own safety when she crossed the road without noticing that a car was in her path.

Background

2. On 25 September 1999, at about 2.30 pm, Ms Phua, who was driving a Toyota sedan (Registration No EV 1898U), turned from Margaret Drive into Tanglin Road and headed towards Orchard Road. Ms

Chen was then standing on a raised concrete kerb, on the same side of the road on which Ms Phua was driving her car

3. Ms Chen was hit by Ms Phuas car as it passed by the raised concrete kerb in question. As a result of the impact, Ms Chen fell and sustained serious injuries. She was rushed to hospital in an ambulance. Apart from injuries to her head and brain, she had several small facial lacerations, a laceration of the right pinna and multiple abrasions on her trunk. She is presently blind, bound to a wheelchair and unable to speak. Her doctors are of the view that she is likely to be permanently disabled.

4. In the statement of claim, the following particulars of Ms Phuas negligence were furnished:

(i) failing to keep any or proper look-out or to have sufficient regard for other road users;

(ii) driving at a speed that was excessive in the circumstances;

(iii) failing to have sufficient control over her car;

(iv) driving in a reckless and dangerous manner;

(v) failing to keep and maintain a safe and proper path;

(vi) failing to apply her brakes in time; and

(vii) failing to stop, slow down or swerve so as to manage or control her car to avoid the collision.

5. In her defence, Ms Phua asserted that the collision was caused solely by or contributed to by Ms Chens negligence. The particulars of Ms Chens alleged negligence included the following:

(a) failing to keep a proper lookout or to have any regard for her own safety when crossing the road;

(b) stepping off the kerb onto the road without giving Ms Phua a reasonable opportunity to avoid the collision;

(c) failing to allow Ms Phuas vehicle to pass by completely before attempting to cross the road;

(d) crossing or attempting to cross the road when it was unsafe to do so; and

(e) failing to make use of the pedestrian control crossing which was nearby.

Physical characteristics of Tanglin Road

6. The section of Tanglin Road where the accident occurred is a formed, sealed bitumen road, with concrete kerbing on either side of the travel lanes. The traffic in the opposite lanes is separated by painted white lines. For traffic travelling towards Orchard Road, the width of Tanglin Road narrows from the Margaret Drive intersection towards a bus stop, near the place where the accident occurred. About 40-45 metres north of where the accident occurred is a pedestrian crossing, with a system of traffic lights to assist pedestrians trying to cross over to the other side of the road.

7. It was not disputed that there did not appear to be any factor involving the road or its environment which led to the accident. As such, the accident must have been caused by either Ms Phua or Ms Chen or by both.

Experts conclusions

8. Two experts in traffic accident investigation and reconstruction gave evidence. Ms Phuas expert witness, Mr Willy Goh, and Ms Chens expert witness, Mr Kelvin Koay Hean Lye, held entirely different views as to how the accident occurred. Mr Goh said that Ms Chen caused the accident while Mr Koay thought that the blame for the accident fell squarely on Ms Phuas shoulders.

9. As the damage sustained by Ms Phuas car was relied upon by both experts to justify their conclusions, it would be convenient at this juncture to refer to the condition of the car after the accident. It appears from the findings of the traffic police and from Ms Phuas own police report that the windscreen had a crack resembling a spiders web at the top left corner and that the left wing mirror was damaged. In addition, the left front wheel cover was dislodged. Mr Willy Goh contended that although the traffic police did not record it, the outside left panel of the car was also damaged. This was denied by Mr Koay.

10. Mr Goh concluded that the accident was caused by Ms Chen, who stepped off the concrete kerb onto the road as Ms Phuas car approached and collided with the left portion of the car. According to him, Ms Chens thigh first hit the left side of the car and dented it, after which her head hit the windscreen. He asserted in his report that the missing hubcap was dislodged by Ms Chens leg.

11. In contrast, Mr Koay said that at the time of the accident, Ms Phuas vehicle was travelling too fast and much too close to the raised concrete kerb and this resulted in the collision with Ms Chen, who was standing on the said kerb. He said that Ms Phuas left wing mirror hit Ms Chen, causing her to spin and hit the cars windscreen. Mr Koay added that the left wheel cover of Ms Phuas car was dislodged when it hit the kerb and this showed just how close Ms Phuas car was to the kerb. He asserted that his reconstruction of the accident was consistent with the injuries suffered by Ms Chen and the damage sustained by Ms Phuas car.

Did Ms Chen walk into the car

12. If, as was contended by Mr Willy Goh, Ms Chen suddenly stepped down from the raised concrete kerb onto the road and gave no opportunity to Ms Phua to avoid her, the accident in question was, without more, caused by Ms Chen. In Chisholm v London Passenger Transport Board [1939] 1 KB 426, 438, Scott LJ pointed out that a pedestrian, even if willing to risk his own life, has no right to suddenly embarrass a driver who is driving at a reasonable speed at which he can stop quickly. In the same case, MacKinnon LJ said at p 442 as follows:

If the car is coming along at the reasonable rate of x miles per hour, at which it can be stopped in y feet, for a pedestrian to walk in front of it when it is less than y feet from him, and he can plainly see it, is the acme of recklessness.

13. In the present case, Mr Goh did not succeed in establishing that it was Ms Chen who caused the accident by crossing the road without warning and colliding with the left side of Ms Phuas car. To begin with, Mr Koay pointed out that if Ms Chen had caused the accident by walking into the vehicle without realising that it was coming towards her, she would have hit the outside panel of the left side of Ms Phuas car and damaged it. He noted that while the vehicle had a cracked windscreen, a damaged left wing mirror and a dislodged hubcap, there was no evidence of any damage on the outside left panel of the car. When cross-examined, he explained:

If the pedestrian had stepped out onto the road and hit the car, I would expect her leg to be injured. There would also be substantial damage on the panel but there wasnt. Within that short span of time, the vehicle would have passed the pedestrian in about 0.5 seconds. So if the pedestrian had stepped out onto the road, it is likely that the front bumper will be affected and I would have found dents.

14. Mr Goh conceded that his version as to how the accident occurred can only be credible if there was some damage to the left side of Ms Phuas car. When cross-examined, he said as follows:

Q. Are you saying that if there is no damage to the fender on the left side of Ms Phuas car, your theory would have been different.

A. Yes, it will be one hundred percent different.

15. Mr Goh insisted that the police photographs of Ms Phuas car showed dents in the fender above the left front wheel of the car. However, Mr Koay said that he could not tell from the photographs in question whether or not the said fender had been dented. When cross-examined, he stood his ground and said as follows:

Q. Look at the police photographs. Can you see the dents?

A. Does not appear to be dents because there is reflection.

Q. I put it to you that there are at least two dents. One is on the fender and the other is just above it.

A. I dont agree. Photographs can be deceiving.

16. Mr Koay maintained his stand when he was asked further questions regarding the dents. His answers were as follows:

Q. Look at the portion of the vehicle above the left front fender. Do you see a discernable dent?

A. I cant really confirm this. There is a continuation of a shadow.

Q. Just to the right of that, can you see a brown patch?

A. I dont. Unless there is another photograph, I cant tell.

Q. Now, the dent that you say you cant see. It is above the left front fender.

A. I really cannot confirm this as there is a continuation of shadow. Unless there is a different photograph of a different view.

17. Ms Phuas counsel, Mr NB Rao, submitted that Mr Koay was evasive. However, it is pertinent to note that all three traffic police officers who gave evidence also could not confirm from the photographs in question that there were dents in the left fender of the car. The first witness, Sergeant Roslan, said as follows when cross-examined:

Q. The original photograph shows a dent on the left fender.

A. Cannot conclude whether it is a dent or a light reflection.

18. Sergeant Roslan, who investigated the present accident case, testified that the only damage to the vehicle was the cracked side mirror and the cracked windscreen. He conceded that the front left hubcap was also missing and that this was not recorded. This, Mr Rao pointed out, showed that the investigation was not thorough. All the same, it ought to be noted that Sergeant Roslan said that apart from the missing hubcap and the damage stated in the police report, which made no reference to dents, he did not notice...