Erin Brooke Mullin and another v Rosli Bin Salim and another

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 03 March 2012
• Neutral Citation: [2012] SGHCR 9027
• Docket Number: Suit No 540 of 2010
• Published date: 13 February 2012
• Court: High Court (Singapore)
• Plaintiff Counsel: Mr Sarjeet Singh s/o Gummer Singh (Acies Law Corporation)
• Defendant Counsel: Mr Niru Pillai and Ms Ooi Yee Mun (Global Law Alliance LLC),Mr Desmond Tan Yen Hau and Ms Lam Su-Yin Natalie (Lee & Lee)
• Subject Matter: Tort,Negligence,Motor Accident,Liability

Lai Siu Chiu J:

This was a claim by Erin Brooke Mullin (“the first plaintiff”) against Rosli Bin Salim (“the first defendant”) and Toh Yoke Chin (“the second defendant”) for the horrendous injuries that the first plaintiff sustained arising out of a motor accident on 18 September 2007 involving vehicles driven by the two defendants.

The first plaintiff is an American citizen who left Singapore after the accident and returned to Illinios, in the United States, together with her husband Jason Elliot Mullin (“the second plaintiff”).

The facts

At about 7.30am on 18 September 2007, the first plaintiff was at MacDonald’s Tea Garden (“MacDonald’s”) located at Queensway to buy breakfast. MacDonald’s has an open car park (“the car park”) for its patrons. Just then, a Honda Odyssey multipurpose vehicle with automatic transmission numbered SDU 2401E (“the vehicle”) driven by the first defendant turned into the car park. As the vehicle was turning into the car park, a bus numbered CB 4939U (“the school bus”) driven by the second defendant collided into its rear. (Hereinafter this collision will be referred to as “the first accident”). Instead of braking and stopping, the first defendant accelerated the vehicle. As a result, the vehicle collided into the front bumper of a stationary vehicle numbered SCQ 1166Z (“the second vehicle) before colliding into the right front bumper of another stationery vehicle numbered SGW 8811 (“the third vehicle”) as well as the first plaintiff. The left front bumper of the vehicle crushed the first plaintiff’s right leg. (Hereinafter this second collision will be referred to as “the second accident”). The serious injuries sustained by the first plaintiff necessitated her right leg being amputated below the knee in consequence.

Subsequently (on 6 January 2009), the first defendant was charged and convicted under ss 279 and 338 respectively of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) for rash and negligent driving and causing grievous hurt. The first defendant pleaded guilty to the charges, was convicted and sentenced to imprisonment of four months and one month each for the two offences (the sentences to run consecutively) and was also disqualified from driving all classes of vehicles for four years.

The first plaintiff sued for damages arising out of the second accident while the second plaintiff sued for the post-traumatic stress disorder he claimed he suffered as a result of his wife’s injuries. The plaintiffs relied on the first defendant’s conviction in [4] as evidence of the latter’s negligence pursuant to s 45A of the Evidence Act (Cap 97, 1997 Rev Ed) (“The Evidence Act”).

Initially, the first defendant denied the plaintiffs’ claims. The first defendant pleaded that he lost control and panicked after the first accident, causing him to step on the accelerator instead of on the brake and to collide into the second and third vehicles consequentially. He admitted he pleaded guilty to and was convicted of the criminal charges in [4] above.

In his defence, the second defendant alleged that the vehicle had encroached into the path of the school bus, causing the second defendant to collide into the vehicle. The second defendant denied he was liable for the second accident contending that those subsequent collisions were independent acts of the first defendant and separate from the first accident.

In their respective defences, the defendants did not allege any contributory negligence on the part of the first plaintiff for the second accident. However, the second defendant alleged that it was the first defendant’s negligence that caused or contributed to the second accident.

In March 2011, the first defendant consented to interlocutory judgment being entered against him for the plaintiffs’ claim.

The first defendant had initially issued a Third Party Notice against the second defendant after the commencement of these proceedings. The Third Party Notice was subsequently discontinued with leave of court.

In May 2011, the first defendant issued a Notice of Indemnity and Contribution against the second defendant pursuant to O 16 r 8(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) for the issue of the proportion of liability between the two defendants to be determined.

In September 2011, the two defendants agreed to the quantum of the second plaintiff’s claim being fixed at $10,000 subject to the issue of liability being determined between them.

The trial before this court was only to determine the extent of liability between the two defendants for the second accident. Parties agreed to dispense with the first plaintiff’s presence at the trial. Both defendants testified for their respective defences. Although the first defendant’s wife was the front seat passenger of the vehicle at the material time, she did not testify even though the first defendant made repeated reference to her reactions prior to the second accident.

The evidence The first defendant’s case

In his affidavit of evidence-in-chief (“AEIC”), the first defendant deposed that on that fateful morning, he and his wife left home at about 6.45am for work. The first defendant was then a driver for Mitsui Chemicals Asia Pacific Ltd (“Mitsui”) which had leased the vehicle. The first defendant was allowed to drive the vehicle home if he worked late into the night and/or had to be at work early in the morning. The couple intended to have breakfast at MacDonald’s before the first defendant dropped his wife off at her office at Robertson Quay.

To get to MacDonald’s from his home at Woodlands, the first defendant used (i) the Seletar Expressway, (ii) the Bukit Timah Expressway and (iii) the Pan Island Expressway in that order. He deposed he exited from the Pan Island Expressway at Eng Neo Avenue and travelled down Farrer Road and Queensway. Traffic that morning along the first defendant’s route was moderate and the weather was fine with good visibility.

As the first defendant approached MacDonald’s, his vehicle which was then in the left lane, was travelling at approximately 50 kph. The first defendant noticed the school bus in front of him moving “a bit slow” (N/E 31) and decided to overtake it when approaching MacDonald’s. He shifted the vehicle to the centre lane and when he was approximately 3 to 4 car lengths in front of the school bus and about 2 lamp posts away from the car park entrance, he signalled left, increased his speed slightly, overtook the school bus and eased the vehicle back into the left lane, at the same time slowing down to enter the car park.

As the vehicle was turning into the car park entrance, the first defendant saw that another vehicle was coming out. He therefore braked and slowed down further to allow the exiting vehicle to pass the vehicle. As he resumed turning into the car park and was moving his foot from the brake onto the accelerator, he felt a sudden and violent impact at the rear of the vehicle when the school bus collided into the vehicle.

The first defendant claimed that upon that sudden impact, the windscreen in front of him turned completely white and he could not see anything. He lost control of the vehicle and surged forward into the car park. It was only when his wife screamed (in Malay) “why so fast” that his vision cleared and the first defendant realised that the vehicle was headed towards MacDonald’s. To prevent a collision, the first defendant turned the vehicle sharply in the direction of the car park.

In his state of shock, the first defendant deposed he was unable to control the speed of the vehicle. His foot was still on the accelerator and even though his mind told him to brake, he was unable to do so as he could not lift his foot off the accelerator. Consequently, the vehicle continued to surge forward and it hit the second and third cars in succession.

The first defendant’s wife screamed again (in Malay) “there is a person”. The first plaintiff had suddenly appeared in front of the third vehicle with a dog. The first defendant claimed he swerved to avoid hitting her but it was too late. She was crushed by the left front bumper of the vehicle and by the right front bumper of the third vehicle.

After colliding into the first plaintiff, the first defendant turned the vehicle sharply to his right. The vehicle climbed a slight slope, crossed a large drain and only then came to a stop on a grass verge.

The first defendant blamed the second defendant for the second accident contending that it all started with the first accident.

Having set out the first defendant’s version of events, I turn now to consider the testimony that was adduced from him by counsel for the second defendant during cross-examination.

Questioned by counsel for the second defendant, the first defendant estimated that he was about 100m from MacDonald’s when he first saw the school bus. Notwithstanding the short distance, he said he overtook the school bus because he thought it was safe to do so. He accelerated after shifting the vehicle into the second lane, overtook the school bus and then changed back to the left lane. By this time, the vehicle was 20m away from the entrance to MacDonald’s. When overtaking the school bus, the vehicle’s speed was more than 50kph and he was going faster than the school bus. However, after he moved back to the left lane, the first defendant testified he slowed down. Indeed he was dead slow (N/E 18) at the time of the impact.

When his attention was drawn to photographs showing tyre marks made on Queensway by the school bus indicating it had braked and braked hard just before the latter collided into the rear of the vehicle, the first defendant claimed he did not hear any screeching of tyres or horning before the collision. Questioned where he had placed his foot while turning into the car park, the first defendant claimed it was on the brake and not on the accelerator until after...