Cheong Ghim Fah and Another v Murugian s/o Rangasamy

• Jurisdiction: Singapore
• Judgment Date: 07 February 2004
• Date: 07 February 2004
• Docket Number: Suit No 493 of 2002
• Court: High Court (Singapore)

Cheong Ghim Fah and another

Plaintiff

and

Murugian s/o Rangasamy

Defendant

[2004] SGHC 19

V K Rajah JC

Suit No 493 of 2002

High Court

Evidence–Witnesses–Attendance–Absence of defendant–Whether adverse inference to be drawn–Section 116 illus (g) Evidence Act (Cap 97, 1997 Rev Ed)–Tort–Negligence–Contributory negligence–Whether pedestrian negligent in jogging on road with back towards traffic–Relevance of breach of Highway Code (Cap 276, R 11, S 8/75)–Apportionment of liability–Highway Code (Cap 276, R 11, S 8/75), s 3 (1) Contributory and Personal Injuries Act (Cap 54, 2002 Rev Ed)–Tort–Negligence–Duty of care–Duty of motorist towards pedestrian–Tort–Negligence–Res ipsa loquitur–When principle should be applied

On 20 February 2002, Leong Wai Mun (“the deceased”), whilst jogging along Lower Delta Road, was killed when he was knocked down by the defendant who was riding a motorcycle. The defendant left Singapore after lodging a police report. In March 2002 the deceased's wife (“first plaintiff”) and the administrator of the deceased's estate (“second plaintiff”) commenced proceedings against the defendant. Judgment in default of appearance was entered against the defendant, but was subsequently set aside by the defendant's solicitors in Singapore. In this suit, the plaintiffs claimed that the defendant was negligent in failing to keep a proper lookout and riding at a high speed. The defendant was absent during this trial, but his solicitors, acting under the instructions of his insurers, contended that the deceased was contributorily negligent.

Held, allowing the plaintiffs' claim, and finding the defendant 85% liable and the deceased contributorily negligent:

(1) The principle of res ipsa loquitur applied when there was reasonable evidence of negligence, or when the occurrence of the accident was prima facie consistent with want of care of the defendant. It did not apply here as the mere fact of the collision was not proof of negligence: at [31] to [34].

(2) The court may draw an adverse inference under s 116 (g) of the Evidence Act from the absence of a witness who might be expected to give material evidence. If there was a credible explanation for the witness' absence, the detrimental effect may be reduced. An adverse inference was drawn against the defendant since he was the sole witness to what transpired, and he had no legitimate reason for being absent: at [39] to [45].

(3) The defendant was 85% responsible for the accident. He had been negligent by travelling at a high speed and failing to keep a proper lookout: at [76], [77] and [87].

(4) The deceased was also contributorily negligent as he had breached r 7 of the Highway Code by jogging with his back to the traffic and failing to use the adjoining pavement: at [82] to [86].

Chapman v Copeland (1966) 110 SJ 569 (folld)

Jones v Great Western Railway Co (1930) 47 TLR 39 (folld)

Kerley v Downes [1973] RTR 188 (not folld)

Loh Saik Pew v Tan Huat Chan [1974-1976] SLR (R) 703; [1975-1977] SLR 189 (folld)

Nance v British Columbia Electric Railway Co, Ltd [1951] AC 601; [1951] 2 All ER 448 (folld)

Parkinson v Parkinson [1973] RTR 193 (not folld)

Powell v Phillips [1972] 3 All ER 864 (not folld)

R v Inland Revenue Commissioners,Ex parte T C Coombs &Co [1991] 2 AC 283 (folld)

Scott v London and St Katherine Docks Co (1865) 3 H & C 596; 159 ER 665 (folld)

Tart v G W Chitty and Company, Limited [1933] 2 KB 453 (folld)

Wisniewski v Central Manchester Health Authority [1998] 5 PIQR P324 (folld)

Contributory Negligence and Personal Injuries Act (Cap 54, 2002Rev Ed)s 3 (1) (consd)

Evidence Act (Cap 97,1997Rev Ed)s 116illus (g) (consd)

Highway Code (Cap 276,R 11, S 8/75)rr 7 and 8

Road Traffic Act (Cap 276, 1997 Rev Ed)s 112

Chia Boon Teck and Roy Yeo (Chia Yeo Partnership) for the plaintiffs

Vijay Kumar Rai (V K Rai & Partners) for the defendants.

Judgment reserved.

V K Rajah JC

1 The 20th of February 2002 began predictably enough for Superintendent Leong Wai Mun, like any other day for the preceding 23 years. He arose before the crack of dawn. He attired himself in his customary jogging attire; white singlet, blue/white shorts, white socks and white/grey running shoes. He had lived in the Spottiswoode area for 23 years, since his marriage. A keen sportsman, he ran around the neighbourhood every morning, even on the first day of the Chinese New Year. The run would commence at about 5.45am and he would invariably return home between 6.20am to 6.30am. After a shower and breakfast, he would send his daughter to school and his wife to her workplace. He would then proceed to work. His workplace was near the home. He was the commander of the Port of Singapore Authority - a position of considerable responsibility. The first plaintiff, his wife, describes him as a very responsible man.

2 With considerable affection, she also recalls that he was a “creature of habit”. One of his twin sons says he was as “predictable as a clock”.

3 Superintendent Leong could not have realised, when he set off on his morning run that day, that the day would not end predictably. When he did not return home at 6.30am, the first plaintiff was not unduly worried. Perhaps, he had run into a colleague. By 7.00am, she began to worry. The daughter was asked to take a taxi to school. The first plaintiff became frantic. She had an intuitive feeling that something was amiss. She instinctively asked her son to visit all the main hospitals. When the Accident & Emergency Department of the Singapore General Hospital was contacted at 8.00am, it confirmed that an unidentified jogger had been sent to the Intensive Care Unit after he had been knocked down in a traffic accident. Her son was asked to identify the victim. The son confirmed it was indeed his father and made a phone call to his mother. She was shocked and horrified. She rushed to hospital. She did not have an opportunity to communicate with him. He was in a coma and died six hours later.

4 Thus began a most distressing saga for the first plaintiff. She was beside herself. She was most anxious to learn what had transpired. How did the accident happen? She learnt that the defendant was riding a motorcycle that collided into Superintendent Leong (“the deceased”) somewhere along Lower Delta Road. The defendant was also conveyed to the Singapore General Hospital by ambulance. The defendant sustained a 3cm laceration on his right eyebrow area, a mildly displaced left LeFort I fracture and a minimally displaced right zygomatic fracture. Soon after admission, he discharged himself from hospital. On 26 February 2002, he made a police traffic accident report. He said he was blameless; “the guy suddenly ran across the road, I cannot stop in time and I hit the subject”. Soon after making the report, he left Singapore, apparently with an intention never to return. The police sought his assistance in their enquiries into the accident. He did not give any assistance. A warrant of arrest was issued against him, to no effect. Interpol assistance was then sought; again without success.

5 There were no eye-witnesses to the accident. Two public-spirited Singaporeans were, however, in the immediate vicinity of the scene of the tragic accident. Ron Lew, a Republic of Singapore Air Force serviceman, was having a “smoke” at the side of the road intersection of Bukit Purmei Road and Lower Delta Road facing the direction of Bukit Merah, when he noticed the defendant's motorcycle “moving fast” from Lower Delta Road. The defendant's motorcycle was travelling in the left lane of Lower Delta Road in the direction of the World Trade Centre. He did not see how the accident occurred but rushed to give assistance at the accident scene, immediately after he heard a load screeching sound and realised that there had been an accident. He voluntarily gave assistance to the police in their enquiries. The plaintiffs called him as a witness. Tay Ying Yi, a student from Ngee Ann Polytechnic, heard the sound of an accident while he was standing at Bukit Purmei Avenue by Lower Delta Road. He too rushed to give assistance. He did not see how the accident had happened. I found them both to be upright and fair witnesses. Their evidence will be referred to in detail.

The plaintiffs begin proceedings

6 In March 2002, the plaintiffs commenced proceedings against the defendant. The family had been dependent on the deceased. The children were still schooling. The first plaintiff has had to make difficult adjustments to her life. She has had to provide for the education and support of her three children single-handedly.

7 These then are the seeds of the present proceedings. The plaintiffs and their lawyers thought that this would be a straightforward case. The defendant had left Singapore. It seemed that he did not want to return and vindicate himself. Since the filing of the statement of claim, unfortunately for the plaintiffs, there have been more than a few twists and turns.

8 The plaintiffs ascertained that the defendant's insurers were Aetna Universal Insurance Sdn Bhd (“Aetna”) a Malaysian insurance company. The defendant was riding a Malaysian registered motorcycle. Aetna was informed of the commencement of proceedings. So was the defendant, who was now in Penang, his hometown. The defendant, on receipt of the writ, wrote a brief note to Aetna, copied to the plaintiffs' solicitors. He enclosed a copy of the writ and a copy of the cover note, and told Aetna to “Kindly do the needful”. He did nothing further. There have been no subsequent communications to the plaintiffs or their solicitors from the defendant.

9 Aetna did not respond to the plaintiffs' solicitors. In due course, after evidencing proper substituted service of the writ on the defendant, the plaintiffs entered an interlocutory judgment against the defendant, with damages to be assessed. This was on 11 October 2002. This did not, however, entail...