Chua Kee Lam (next friend to Chua Peck Seng) v Moksha and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 06 May 2009
• Neutral Citation: [2009] SGHC 110
• Docket Number: District Court Appeal No 44 of 2008
• Date: 06 May 2009
• Published date: 27 May 2009
• Year: 2009
• Plaintiff Counsel: Namasivayam Srinivasan and K Subramanian (Hoh Law Corporation)
• Citation: [2009] SGHC 110
• Defendant Counsel: M P Rai (Cooma & Rai)
• Court: High Court (Singapore)
• Subject Matter: Accident victim not fit to testify,No witnesses called,Admissions,Admissibility of evidence,No case to answer,Head injuries from road traffic accident,Documentary evidence,Tort,Contributory negligence,Police report, photographs and sketch plan of accident scene,Evidence,Negligence,Whether police report, photographs and sketch plan might form evidence of accident,Hearsay,Whether makers of police documents had to testify,Whether driver had taken sufficient precautionary measures,Breach of duty,Public or official documents

6 May 2009

Chao Hick Tin JA:

Introduction

1 The action below was instituted by one Chua Kee Lam (“CKL”) as the next friend of Chua Peck Seng (“CPS”) who was injured in a motor accident. CKL is the son of CPS. This was an appeal against the decision of the district judge (“the DJ”) who dismissed CPS’s claim against the defendants in respect of the head injuries he suffered on account of that motor accident which was allegedly due to the negligence of the first defendant (see Chua Kee Lam v Moksha [2008] SGDC 366).

2 On 6 January 2004 at about 10.15am, the appellant, then 84 years of age, was riding a bicycle along Bedok South Avenue 1 when he collided with a lorry driven by the first defendant. The second defendant was the employer of the first defendant. Hereinafter, CPS will be referred to as “the appellant” and the defendants as “the respondents”. As a result of the accident, the appellant suffered partial mental disability and was thus unable to testify in court as to how the accident happened. The DJ dismissed the appellant’s claim on the ground that there was no evidence adduced which showed negligence on the part of the first respondent.

3 The appellant’s case was essentially that the first respondent had not exercised due care in driving the lorry and had thereby failed to avoid the collision. At the trial, counsel for the appellant called only one witness, CKL. However, as CKL did not witness the accident, his affidavit of evidence-in-chief merely exhibited various pieces of documentary evidence including, inter alia:

(a) police photographs of the accident scene;

(b) a police sketch plan of the accident scene; and

(c) a police report made by the first respondent.

During the cross-examination, CKL had to admit that he had no personal knowledge of the accident or of the documents exhibited. Counsel for the respondents elected not to call any evidence and submitted that there was no case to answer.

4 The DJ found that there was no evidence to support the alleged claim that the first respondent was negligent for the accident for three reasons. First, since CKL was not a witness to the accident, he could not furnish any direct evidence as to how the accident happened. Second, the truth of the contents of the documents exhibited in CKL’s affidavit of evidence-in-chief could not be proved because the appellant had not called any of the makers of the various documents. Finally, the DJ held that the doctrine of res ipsa loquitur did not apply because it was not self-evident that the accident must have occurred as a result of the first respondent’s negligence.

5 There were two issues in this appeal. First, whether the DJ was wrong in not admitting any of the documents into evidence; and second, whether, if any of the documentary evidence were admitted, it would show that the first respondent was in breach of his duty of care to the appellant.

The evidence issue

6 As indicated above, the primary difficulty in the appellant’s case, as found by the DJ, was the lack of evidence to establish how the accident happened and in what way the first respondent was negligent. At the hearing of the appeal, counsel for the appellant informed me that, on the first day of the trial, both parties had agreed to the authenticity of the first respondent’s police report, the police photographs and the police sketch plan, although the truth of the contents of these documents was not necessarily admitted by the respondents. This agreement was confirmed by counsel for the respondents. Notwithstanding this agreement, the DJ rejected these documents as evidence because the makers of the documents, namely the police officers investigating the accident and the first respondent himself, were not called as witnesses.

7 Counsel for the appellant also explained that they had tried to subpoena the investigating officer from the Traffic Police Department, but were advised that there was no necessity to subpoena the investigating officer as public documents relating to the traffic accident, including the police photographs, reports of traffic accidents and police sketch plans could be admitted via s 79 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”).

8 The effect of this agreement was that the parties had agreed to admit those documents into evidence without formal proof although both parties reserved the right to challenge the truth of the contents therein. Accordingly, the documents would form part of the evidence before the court (see Press Automation Technology Pte Ltd v Trans-Link Exhibition Forwarding Pte Ltd [2003] 1 SLR 712 at [22], Goh Ya Tian v Tan Song Gou [1980-1981] SLR 578 at 581, [12] and Tan Song Gou v Goh Ya Tian [1982-1983] SLR 107 at 109, [11]). The relevancy of the facts contained in the documents must also be established, that is to say, hearsay must be rejected (Abdul Khoder bin Shafie v Low Yam Chai [1989] 2 MLJ 483). There can be no question whatsoever that the documents were relevant to the action. The police report made by the first respondent contained his account of the accident and nothing therein was hearsay as the first respondent would have stated in the report what he personally witnessed. The position with regard to the police photographs and the sketch plan would be the...