Cheryl Stephanie Elias Edward v Sun Xin Jian and another (Tan Chong Industrial Machinery (Pte) Ltd, third party) and another suit

• Judge: James Leong Kiu Yiu
• Judgment Date: 20 November 2020
• Neutral Citation: [2020] SGDC 262
• Citation: [2020] SGDC 262
• Court: District Court (Singapore)
• Published date: 17 December 2020
• Docket Number: District Court Suit No 848 of 2014 & District Court Suit No 3273 of 2015
• Plaintiff Counsel: Manickam Kasturibai and Jocinda Wong Jia Heng (East Asia Law Corporation),Goh Siong Pheck Francis and Yeo Wei Cheang (Harry Elias Partnership LLP)
• Defendant Counsel: Appoo Ramesh and Vinodhan Gunasekaran (JUST LAW LLC),Kesavan Nair and Leong Kit Ying Melissa (Bayfront Law LLC)
• Subject Matter: Tort,Negligence,Contributory Negligence,Vicarious Liability,Road Traffic,Third Party Liability
• Hearing Date: 30 July 2019,28 November 2019,03 July 2020,26 November 2019,17 July 2020,22 November 2019,29 July 2019,10 January 2020,25 November 2019

District Judge James Leong Kui Yiu: Introduction

The case before me involved a tragic accident, where a fully laden motor vehicle YM8972C (“the truck”) had barrelled through a signalised pedestrian crossing, despite the lights having turned red. The accident injured two persons and killed one. The plaintiff in DC/DC 848/2014 (“Suit 848”), who was injured, seeks to claim damages as against the defendants in an action for negligence. In turn, the defendants seek an indemnity from their contracted vehicle maintenance mechanics, joining them as a third party to this action.

Subsequently, the family members of the deceased – specifically the father, mother, brother, and sister – commenced an action against the same defendants in DC/DC 3273/2015 (“Suit 3273”) pursuant to sections 20 and 21 of the Civil Law Act (Cap 43, 1999 Rev Ed). By an order of court in Suit 3273 dated 29 January 2019, (DC/ORC 444/2019), it was ordered inter alia that: the trial on liability for Suit 3273 and the third party action related to Suit 3273 be tried at the same time as the trial on liability for Suit 848 and the third party action related to Suit 848; the evidence admitted in the trial on liability for Suit 848 and the third party action related to Suit 848 shall also be admitted in the trial on liability for Suit 3273 and the third party action related to Suit 3273, and vice versa; the documents disclosed and affidavits filed in the trial on liability for Suit 848 and the third party action related to Suit 848 shall be treated as having been disclosed and filed in Suit 3273 and the third party action related to Suit 3273, and vice versa; the evidence admitted in the third party action related to Suit 848 shall also be admitted in the trial on liability for the main proceedings in Suit 848, and similarly, that the evidence admitted in the third party action related to Suit 3273 shall be also be admitted in the trial on liability for the main proceedings in Suit 3273.

The parties in Suit 3273 arrived at a settlement prior to the first day of the trial and informed the court that they had agreed on liability subject to the outcome of the third party proceedings.

The trial in relation to the plaintiff and the third party proceedings spanned seven days. Parties called a total of 12 lay and expert witnesses: two witnesses for the plaintiff, four witnesses for the defendants, and six witnesses for the third party.

At the conclusion of the trial, I found the defendants liable to the plaintiff for 92.5% of the damages to be assessed by the registrar, with the 2nd defendant being vicariously liable for the negligence of the 1st defendant. I also dismissed the claim of the defendants against the third party.

The defendants have since appealed against my decision in both actions to the High Court (HC/DCA 22/2020 and HC/DCA 23/2020). Elaborating on the brief oral reasons that I delivered on 3 July 2020, these are my grounds of decision.

Background facts Parties

The plaintiff was one of the three victims of the accident. She was working as a pre-schoolteacher,¹ and was on her way to the tuition centre where she was giving part-time tuition when the accident occurred.²

The 1st defendant was employed as a driver at the material time by the 2nd defendant who were in the logistics business.

The 2nd defendant were the registered owners of the truck that was driven by the 1st defendant at the time of the accident.

The third party was in the business of providing maintenance and service packages for diesel trucks. They were the contracted vehicle maintenance mechanic of the 2nd defendant responsible for the maintenance and upkeep of the 2nd defendant’s vehicles including the truck.

Facts relating to the accident

On 4 November 2012, the truck was brought to the third party’s workshop because of a worn clutch. The third party carried out maintenance on the truck and returned it to the 2nd defendant on 5 November 2012. Between the time of return of the truck and the accident, the truck had travelled over 200km in the ordinary course of the 2nd defendant’s business.

The motor accident occurred on 6 November 2012 at or about 6.30pm.

The plaintiff was standing at a pedestrian crossing at the junction of Clementi Avenue 6 and Clementi Loop. When the light turned in her favour, the plaintiff began to cross the road. At the same time, the 1st defendant was driving the truck along Clementi Avenue 6 towards the junction, after exiting the Ayer Rajah Expressway (“AYE”).

When the 1st defendant approached the junction, the traffic light signal was red. The truck did not stop and proceeded to hit the three victims, as a consequence of which the plaintiff suffered injuries and the deceased victim was pronounced dead at the scene of the accident.

Procedural history

The 1st defendant was convicted after trial on 25 January 2016 on: One charge of causing the death of a pedestrian at a traffic light pedestrian crossing by driving his motor lorry in a dangerous manner that is by driving at an unsafe speed and with inefficient brakes under the then s 66(1) of the Road Traffic Act (Cap 276, 2004 Rev Ed) for which he was sentenced to seven months’ imprisonment and a seven year disqualification from driving all classes of vehicles; One charge of causing grievous hurt to another pedestrian at the same traffic light pedestrian crossing by driving rashly at an unsafe speed and with inefficient brakes such as to endanger human life by driving so rashly and at an unsafe speed and with inefficient brakes such as to endanger human life under s 338(a) of the Penal Code (Cap 224, 2008 Rev Ed) for which he was sentenced to three months’ imprisonment; One charge of causing hurt to a third pedestrian at the said traffic light pedestrian crossing by driving rashly at an unsafe speed and with inefficient brakes such as to endanger human life under s 337(a) of the Penal Code for which he was sentenced to one month imprisonment.

The 1st defendant also pleaded guilty to a fourth unrelated charge of obtaining the sexual services of a minor for consideration under s 376B(1) of the Penal Code. He was sentenced to 12 weeks imprisonment in relation to the fourth unrelated charge.

The sentences for the first and the fourth charges were ordered to run consecutively and the remaining sentences to run concurrently, making a total of seven months and 12 weeks imprisonment and a disqualification for a period of seven years for all classes of driving licenses.

The decision is set out in PP v Sun Xin Jian [2016] SGDC 22 (“Sun Xin Jian”). The 1st defendant’s appeal in MA 153/2015/01 against this decision was dismissed by the High Court on 13 May 2016.

The parties’ cases

The plaintiff’s case was that: the said collision was caused by the negligence of the 1st defendant for whose actions the 2nd defendant as employer are vicariously liable; the plaintiff was just about to begin crossing and was standing on the pedestrian island when the accident happened; the truck had mounted the pedestrian island, swerved into the pedestrian crossing and collided into the plaintiff; and the plaintiff was not contributorily negligent.

The 1st and 2nd defendants’ case was as follows: the plaintiff had not proven on a balance of probabilities that the accident occurred as a result of negligence pleaded in the Statement of Claim; further or in the alternative, that the accident was an inevitable accident; further or in the alternative, that the plaintiff was contributorily negligent, and should bear at least 20% of the liability for failing to keep a proper lookout by checking if the traffic on the left had stopped or was about to stop before starting to cross the junction; and that the third party should indemnify the defendants wholly or for the bulk of the liability which the court finds against the defendants (if any), for their failure to exercise reasonable care and ensure that the vehicle’s brakes were in a serviceable and roadworthy condition at all material times.

The third party’s position was that: when the truck was returned to the 2nd defendant on 5 November 2012, its brakes and braking system were in good serviceable and mechanical condition and it was in a good roadworthy condition; the accident was not caused or contributed by the third party’s servicing or maintenance of the truck’s brakes or braking system and that the accident occurred without their negligence or default, but rather the 1st defendant’s negligence in the driving, management, and control of the truck; further or in the alternative, the defendants, with full knowledge and understanding of the danger arising from driving the truck with ineffective brakes, voluntarily accepted the risk of injury; and the defendants had failed to take any proper or effective steps to avoid the accident and/or to avert and/or prevent the accident.

Issues to be determined

Whilst parties had canvassed multiple issues to be determined, I found that the salient issues could be narrowed down to the following three: whether I should consider the criminal conviction of the 1st defendant in Sun Xin Jian and if so, the weight to be accorded to it; whether the accident was substantially caused by the 1st defendant driving rashly; and whether there was contributory negligence on the part of the plaintiff or third party. Issue 1: Should the criminal conviction in PP v Sun Xin Jian be considered, and if so, what was the weight to be accorded to it?

As a preliminary point, the defendants asserted that the plaintiff did not plead the 1st defendant’s conviction in support of their case. It is however trite that one pleads facts, and not evidence. As the 1st defendant’s conviction was only a subordinate fact, it should not be canvassed in pleadings, per Jusoh v Ng Ah Soi & Anor [1963] 1 MLJ 92. Further, the burden of disproving the...