Fobrogo Loreen Vera Mrs Sandosham Fobrogo Loreen Vera v MCST Plan No 1614

• Jurisdiction: Singapore
• Judge: Sheik Umar Bin Mohamed Bagushair
• Judgment Date: 25 October 2021
• Neutral Citation: [2021] SGMC 75
• Court: Magistrates' Court (Singapore)
• Docket Number: Suit No 11583 of 2019, and Summons No 3536 of 2021
• Year: 2021
• Published date: 02 November 2021
• Hearing Date: 16 July 2021,02 July 2021,18 June 2021,07 April 2021,27 August 2021,08 April 2021
• Plaintiff Counsel: Bogaars Nigel Brian (Bogaars & Din)
• Defendant Counsel: Dean Salleh (Comma & Rai)
• Subject Matter: Tort,Negligence,Breach of duty,Evidence,Admissibility of evidence,Opinion and belief,Civil Procedure,Appeals,Leave
• Citation: [2021] SGMC 75

District Judge Sheik Umar Bin Mohamed Bagushair: Introduction

The Plaintiff brought this claim against the Defendant for the injury and losses she suffered when she fell whilst on an escalator at the Adelphi Shopping Centre (“Premises”) on 29 June 2017 (the “Accident”). The Premises were managed by the Defendant. At the time of the Accident, the Plaintiff was 68 years old.

The trial before me was bifurcated and took place over two days. Two witnesses gave evidence on the Plaintiff’s behalf: The Plaintiff and her husband Mr Rolland Sandosham (“Mr Sandosham”). Mr Sandosham was on the escalator with the Plaintiff when the Accident happened. Three witnesses gave evidence on the Defendant’s behalf: Mr Wong Yeow Keong (“Mr Wong”), the operations manager from Hitachi Elevator Asia Pte Ltd (“Hitachi”), Ms Chang Mei Foong (“Ms Chang”), the building manager for Propmag Management Service Pte Ltd (“Propmag”) and Mr Wong Wei Kiat (Huang Weijie) (“Mr Huang”), an eyewitness to the Accident. Hitachi had supplied and maintained the escalator the Plaintiff was on when the Accident happened and Propmag are the Premises’ managing agents.

On 16 July 2021, I entered interlocutory judgment in the Plaintiff’s favour at 100%. I gave brief reasons for my decision. I now set out my detailed grounds.

Parties’ pleaded positions

A number of pleading points were raised and so it makes sense for me to first set out the parties’ pleadings and address those arguments. For example, the Defendant argued that since it was the Plaintiff’s case that “the escalator suddenly and without warning, violently jerked forwards and backwards” and that resulted in the Plaintiff falling, it was not open to the Plaintiff to make a more general assertion that the escalator had malfunctioned and that resulted in the Plaintiff falling.

In Statement of Claim (Amendment No 2), the Plaintiff asserted that the Accident occurred as follows:

On the aforesaid date, whilst the Plaintiff and her husband were travelling on an escalator (“the escalator”) from the basement to Level 1 in the premises, the escalator suddenly and without warning, violently jerked forwards and backwards, causing the Plaintiff and the Plaintiff’s husband to fall onto the steps of the escalator. As a result, the Plaintiff sustained severe injuries. The Plaintiff avers that at all material times, both she and her husband were holding onto the handrails of the escalator.

The Defendant’s pleaded response in its Defence (Amendment No 2) was essentially a bare denial: 4. Paragraph 3…is denied in its entirety and the Plaintiff is put to strict proof. The Defendants deny that the escalator violently jerked forwards and backwards, causing the Plaintiff and the Plaintiff’s husband to fall onto the steps of the escalator, as alleged. The Defendants aver that the Plaintiff’s version of the alleged accident in her Statement of Claim (Amendment No 2) is materially and fundamentally different from and/or inconsistent with her initial/ contemporaneous version, namely that it was her husband who had fallen on her first and had caused her to lose balance and fall next, and therefore, that it is a latter addition/ concoction and an afterthought devoid of any factual substratum. It is also denied that the escalator was in a defective and/ or dangerous condition. Causation is disputed and the Plaintiff is put to strict proof on all her allegations.

..

6. The Defendants briefly aver that the accident was due to the Plaintiff and/ or her husband’s negligence. Further and/or in the alternative, the Defendants aver based on the Plaintiff’s initial/ contemporaneous version that the Plaintiff’s husband fell backwards onto the Plaintiff and had caused the Plaintiff to fall backwards and/ or onto the steps of the escalator and that this constituted a novus actus interveniens and the Defendants cannot be liable to the Plaintiff.

I make the following observations about the pleadings set out above. First, it appeared that the Defendant was not mounting a positive case and had put the Plaintiff to strict proof as to how the Accident happened. This is of course something it is entitled to do. However, there are evidential implications to such an approach. The law draws a sharp distinction between bare denials and positive allegations. This distinction bears significant evidential implications. If a defendant denies part of a claim, he is “not entitled to call evidence of fact contrary to the plaintiff’s contention without first setting out his positive case in his defence” (Singapore Civil Procedure 2020, vol 1 (Hon Justice Chua Lee Ming ed) (Sweet & Maxwell, 10th ed, 2020) (“Singapore Civil Procedure”) at para 18/13/4)). However, the Defendant called Mr Huang to give evidence as to what transpired. Although at various points during the trial, the Defendant Counsel emphasised that the Defendant was not taking a position on how the Accident occurred, ultimately, the Defendant adopted Mr Huang’s evidence. This can be seen from paragraph 137 of its closing submissions where the Defendant set out “what happened” based on Mr Huang’s evidence, the essence of which was as follows (“Mr Huang’s Version”): i. The Plaintiff and her husband…were on the escalator going up from the basement to level 1. The escalator was in motion and had not stopped… ii. When [Mr Sandosham] reached level 1, he lost his balance and fell forward… iii. The Plaintiff, who was close behind [Mr Sandosham], tripped over [him] and fell forward…

Strictly speaking, the Defendant was not entitled to adduce or rely upon Mr Huang’s evidence about how the Accident occurred given it had not put forth a positive case as to what occurred. Notwithstanding this, I did not think Mr Huang’s evidence should be excluded. This was because the Plaintiff did not object to Mr Huang’s evidence. The Plaintiff did not file a notice to object to Mr Huang’s evidence. Neither did she object to Mr Huang giving evidence at the trial. Finally, the Plaintiff did not argue in her closing submissions that Mr Huang’s evidence should be excluded because the Defendant failed to set forth a positive case about how the Accident occurred. The situation is therefore not dissimilar from Nagase Singapore Pte Ltd v Ching Kai Huat and others [2007] 3 SLR(R) 265 (“Nagase”). In that case, the court found that although the defendants had pleaded bare denials and were therefore prevented from raising certain defences, as the plaintiff failed to object at an earlier stage (raising an objection only in its closing submissions), the court declined to exclude the defences or the evidence in support of the defences (Nagase at [165]–[177]).

My second observation about the pleadings is the Defendant’s reliance on “the Plaintiff’s initial/ contemporaneous version that the Plaintiff’s husband fell backwards onto the Plaintiff and had caused the Plaintiff to fall backwards and/ or onto the steps of the escalator” (which for convenience I will refer to as the “Initial Version”). The Defendant says that based on the Initial Version, the Plaintiff’s present account is an “addition/ concoction and an afterthought devoid of any factual substratum” and further that it gives rise to an act of novus actus interveniens. Although the Plaintiff’s present account of the Accident is now different from the Initial Version, the Defendant’s position (although not stated so explicitly) is that the Plaintiff must be bound to the Initial Version. Putting aside for the moment whether the Defendant’s position can be supported by authority, I had a more fundamental difficulty with this because the Initial Version is not even the version of events that the Defendant has adopted (ie, Mr Huang’s Version). Mr Huang’s version is that Mr Sandosham had fallen forward, and that the Plaintiff tripped over him and had also fallen forward. But in the Initial Version, Mr Sandosham had fallen backwards onto the Plaintiff and this caused the Plaintiff to also fall backwards. I did not think it was open to the Defendant to say, on the one hand, that what happened was Mr Huang’s Version, and on the other hand, insist that the Plaintiff must be bound to the Initial Version that on the Defendant’s own case is wrong. If the Initial Version was wrong, then surely the Plaintiff cannot be criticised for moving away from it, which she has done.

Therefore, my view is that the only two competing versions of the Accident is the Plaintiff’s present account (as set out in her Statement of Claim (Amendment No 2)) and Mr Huang’s version. Neither party is relying on the Initial Version as being correct and for all intents and purposes, it should be ignored and not relied upon. It follows from this that at least two of the Defendant’s arguments falls away. First, in so far as the Defendant says that the Plaintiff’s present account is an “addition/ concoction and an afterthought devoid of any factual substratum” because of the Initial Version, that argument cannot be accepted, since the Defendant’s position is that the Initial Version is not what actually happened. Second, in so far as the Defendant relies on the Initial Version to argue novus actus interveniens, that argument falls away, again because the Defendant accepts that the Initial Version is not what actually happened.

The facts

At around 11 am on 29 June 2017, the Plaintiff was with her husband Mr Sandosham and had just finished having a meal at a café at the basement of the Premises. The Plaintiff and Mr Sandosham then made their way to level 1 by taking the escalator.

The Plaintiff says that they were both holding on to the handrail while on the escalator. Mr Sandosham was standing one step in front of the Plaintiff, to her right. Mr Sandosham was therefore holding on to the right handrail and the Plaintiff was holding on to the left handrail. As the escalator passed the middle section and was about to reach level 1, “the...