City Car Rentals & Tours Pte Ltd v Sim Jwee Kiat

• Judge: L P Thean J
• Judgment Date: 20 January 1988
• Neutral Citation: [1988] SGHC 11
• Citation: [1988] SGHC 11
• Defendant Counsel: Mohamed Abdullah (Murphy & Dunbar)
• Published date: 19 September 2003
• Plaintiff Counsel: Michael Liew (RCH Lim & Co)
• Date: 20 January 1988
• Docket Number: Suit No 3288 of 1993
• Court: High Court (Singapore)
• Subject Matter: Effect of limitation clause in hiring agreement,Car hiring agreement,Whether bailee was negligent in driving the car,Contract,Bailment

By a hiring agreement dated 3 April 1980 (the agreement) the plaintiffs hired a car, a Mercedes Benz, No SZ 2693, to the defendant for a period of four days at the rate of $180 per day plus a further charge at the rate of $10 per day for `vehicle and vehicle collision damage waiver` insurance. The car was hired by the defendant for a trip to West Malaysia. On 4 April 1980, the defendant left Singapore for Kuala Lumpur driving the car, and with him were three passengers. He met with an accident at the 12-milestone, Jalan Tampin in Gemas. The car skidded and collided into a boulder at the side of the road; the defendant was injured and the car was damaged. The car was towed to a police station in Johore, and was released to the plaintiffs on 13 April 1980. It was then surveyed and subsequently repaired. The plaintiffs claimed against the defendant for damages for breach of contract and for negligence.

The claim was resisted by the defendant and the defence was two-fold: first, the defendant denied that there was any negligence; the car suddenly skidded and collided into a boulder at the side of the road without any negligence on his part. Secondly, the defendant averred that he had purchased the `vehicle and vehicle collision damage waiver` insurance and pursuant to cl 5(b) of the agreement the plaintiffs agreed to relieve him of all liability for damage arising out of, inter alia, collision in excess of $1,000. In other words, his liability for the damage was limited to $1,000.

There were two issues before me: (i) whether the accident was caused by the negligence of the defendant; (ii) if the answer to this question is in the affirmative, whether the provision of cl 5(b) of the agreement applies and relieves the defendant from liability for damage exceeding $1,000. At the conclusion of the trial, I held that the damage to the car was caused by the negligence of the defendant and that cl 5(b) of the agreement did not apply to relieve the defendant from such liability for the damage to the vehicle in excess of $1,000; I gave interlocutory judgment to the plaintiffs and ordered damages to be assessed. I also awarded costs to the plaintiffs.

The first issue is one of fact. It was not in dispute that at the material time the defendant was driving the car and that the car collided into a boulder at the side of the road and sustained serious damage. The agreement was a contract of bailment and the defendant as a bailee was bound to exercise reasonable care of the chattel bailed, ie the car. As the car was in his possession and under his control when it was damaged, a prima facie case that he had failed to exercise reasonable care arose and the burden was on him to show that he had exercised reasonable care and that the accident occurred without any negligence on his part. The question therefore was whether on the evidence before me the defendant had discharged that burden. The defendant gave evidence. He said that the stretch of road at which the accident occurred was a two-way traffic and was winding, and at the material time he was travelling at a speed between 50 kph and 60 kph. The road was dry and it was not raining. While he was negotiating a bend, the car suddenly skidded, and thereupon he applied the brakes but lost control of the car, as a result of which it collided into the boulder at the side of the road on the right, that is, the off-side. He did not attempt to overtake any vehicle at the time, and denied that he was travelling at a fast speed. According to the photographs (AB14-18), the front of the car on the right side was seriously damaged, and there was no dispute that the car collided into the boulder on the off-side. When the defendant lost control of the car, it must have veered across to the lane for the oncoming traffic and collided into the boulder at the side on the right. The defendant seemed to suggest that the skidding of the car was due to some oily or greasy patches on the road. But he did not see these patches before the accident. He did not see them, and indeed could not have seen them after the accident as he was injured. He then seemed to suggest that his friend or friends - the passengers in the car - saw them. However, none of his friends were called to give evidence. I found his evidence unconvincing. I think that he must have been driving the car too fast in the circumstances and failed to manage and control the car so as to avoid the collision. In my opinion, he had not discharged the burden of proving that the accident happened without his fault. The plaintiffs therefore succeeded in establishing negligence on the part of the defendant.

The second issue turns on the true construction of the provisions of cl 5(b) and (c) of the agreement, which are as follows:

5 That hirer expressly acknowledges personal liability to pay owner on demand:

(a) ...

(b) vehicle and vehicle collision damage waiver and miscellaneous charges at the rate specified overleaf unless hirer had purchased in advance the `vehicle and vehicle collision damage waiver` insurance, in which case, owner shall relieve hirer of all liability for damage arising out of collision, upset, malicious mischief, vandalism, falling objects, missiles, glass breakage, fire, smoke, water or smudge in excess of $1,000. Hirer shall nevertheless reimburse owner upon receipt of its invoice the first $1,000 being the excess provided of any loss or damage arising out of each incident or event;

(c) the full amount of all costs, or damages incurred or sustained by the owner as a result of:

(i) theft;

(ii) conversion by any of the hirer`s...