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

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 06 May 2009
• Neutral Citation: [2009] SGHC 110
• Citation: [2009] SGHC 110
• Subject: 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
• Defendant Counsel: M P Rai (Cooma & Rai)
• Plaintiff Counsel: Namasivayam Srinivasan and K Subramanian (Hoh Law Corporation)
• Date: 06 May 2009
• Publication Date: 27 May 2009
• Docket Number: District Court Appeal No 44 of 2008

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,...