Hum Weng Fong v Koh Siang Hong

• Court: Court of Appeal (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 07 July 2008
• Neutral Citation: [2008] SGCA 28
• Citation: [2008] SGCA 28
• Defendant Counsel: Abraham Teo Siew Kuey (Abraham Teo & Co)
• Plaintiff Counsel: Chua Tong Nung Edwin and Wong Sow Yee (Lawrence Chua & Partners)
• Published date: 09 July 2008
• Docket Number: Civil Appeal No 92 of 2007
• Date: 07 July 2008
• Subject Matter: Witnesses,Evidence,Damages,Trial judge finding motorcyclist liable for two-thirds of damages,Trial judge asking many questions of witness,Whether appellate court should interfere with trial judge's apportionment,Motorcyclist travelling on major road colliding with cyclist emerging from slip road,Whether trial judge intervened excessively,Section 167 Evidence Act (Cap 97, 1997 Rev Ed),Apportionment

7 July 2008

Chao Hick Tin JA (delivering the grounds of decision of the court):

Introduction

1 This was an appeal by the defendant against the decision of the High Court which held that liability for an accident, which occurred at 4.45am on 26 January 2004 at the junction of Ang Mo Kio Avenue 3 (“AMK Ave 3”) and Ang Mo Kio Industrial Park 2 (“the AMK T‑junction”) and caused the death of one Teow Moi Chye (“the deceased”), be apportioned between the defendant and the deceased in the ratio of two-thirds and one-third respectively.

2 We heard the appeal on 13 May 2008 and allowed it by varying the proportion of liability for the accident to that of one-third for the defendant and two-thirds for the deceased. We now give our reasons for the decision.

Facts of the case

3 The plaintiff respondent is the widow of the deceased and the administratrix of the deceased’s estate. At the time of the accident, the deceased, aged 55, was a school bus driver. The plaintiff assisted her husband in his work by being the bus attendant. On every school day, at about 4.30am, the deceased would cycle from his home at Ang Mo Kio Avenue 4 to Serangoon Garden South School at AMK Ave 3 where his bus was parked the night before. The deceased would then drive the bus home to pick up the plaintiff before they went about their daily work.

4 The defendant appellant retired as a welder at the age of 55. He was 58 years old on the date of the accident. On the night before the accident, the appellant was having dinner at a coffee shop at Kallang Bahru. There he met up with some friends and they had drinks. The appellant consumed three large bottles of Carlsberg beer. It was then raining heavily. At about 4.15am when the rain subsided, he put on his raincoat and rode his motorcycle intending to return home. His route took him through the Central Expressway and AMK Ave 3 towards the direction of Hougang. It was at a spot just a few metres past the AMK T‑junction when the appellant’s motorcycle collided into the deceased who was cycling from Ang Mo Kio Industrial Park 2 and taking the left slip road to join up with AMK Ave 3. The deceased suffered head injuries from which he died.

5 There was no eye witness to the accident other than the appellant. AMK Ave 3 is a dual carriageway with each direction having three traffic lanes. According to the appellant, on that morning, he was riding his motorcycle along the middle lane of AMK Ave 3 at a speed of 50 km/h with his headlights on. The traffic at that hour was very light. As he approached the traffic-controlled AMK T‑junction, the traffic lights were in his favour and he proceeded along. Just past the junction, as the slip road merged with AMK Ave 3, the deceased rode his bicycle very quickly onto the main road. The appellant said that when he saw the deceased, the latter was only about one car length away from him. He also said that he tried to avoid a collision by swerving to the right and applying the brakes. But it was of no avail.

6 The police sketch plan of the scene of the accident showed that the bicycle was lying on the left edge of the left lane of AMK Ave 3, where the slip road and the main road joined up. The deceased was lying on the left edge of the middle lane. The motorcycle was lying on the right edge of the left lane.

Decision of the court below

7 The judge below (“the Judge”) had difficulties accepting the appellant’s evidence that the deceased had suddenly emerged from the slip road and encroached onto his path. He referred to the appellant’s evidence during cross-examination when he said that he had filtered from the middle lane to the left lane as he was reaching the Caltex petrol station. This petrol station is located at the AMK T‑junction, on the same side from which the deceased emerged from the slip road onto AMK Ave 3. In his police report, the appellant never mentioned anything about filtering to the left lane from the middle lane. There he only stated that, at the AMK T‑junction, “a cyclist suddenly came out from the slip road”.[note: 1] The Judge also pointed out that the appellant’s report to his insurer, where he enclosed a sketch of the scene of the accident, showed that he was travelling in the middle lane throughout and the collision took place at the left edge of the middle lane.

8 Next, the Judge took issue with the appellant’s claim that he had swerved right upon seeing the deceased encroaching onto his path. The Judge opined (at [7] of his grounds of decision in Koh Siang Hong v Hum Weng Fong [2007] SGHC 218) that “[w]ere that the case, [the appellant’s] motorcycle would have ended on the right side of AMK Ave 3, not the leftmost lane”.

9 Third, the Judge questioned why the appellant had not noticed the deceased earlier and only saw the latter when the latter was one car length away; if the appellant had kept a proper lookout he would have seen the deceased earlier as the latter was pedalling along the slip road. The Judge thought that this might be due to the fact that the appellant was tired and not alert, having spent the last seven hours or so drinking. Moreover, he also opined that, while the appellant was riding within the speed limit prescribed by law, having regard to the lighting conditions, the wet road surface and the state of his alertness, riding at 50km/h was excessive and not safe.

10 The Judge placed one-third blame on the deceased because he entered AMK Ave 3 without ensuring that it was safe for him to do so. However, the Judge thought that greater fault lay with the appellant for not keeping a proper lookout and for having changed from the middle to the left lane, thus putting him on a collision course with the deceased. The Judge held him two-thirds to blame.

The appeal

11 Before us, the appellant submitted that the Judge was wrong to have held that he was two-thirds to blame for the accident. Indeed, the appellant argued that he should be absolved from fault altogether because:

(a) any motorist or cyclist who emerges from a minor or slip road onto the main road should give way to traffic on the main road;

(b) the appellant could not be considered to be riding fast at a speed of 50 km/h; and

(c) a reasonable motorist in the position of the appellant would not have seen the cyclist’s sudden emergence onto the main road as it was dark and the bicycle had no lights.

The respondent submitted that the Judge, having carefully analysed the evidence, was correct in his apportionment. Emphasis was placed on the fact that the appellant had switched lanes and failed to keep a proper lookout for other users of the road such as the deceased.

Issues in the appeal

Changing lanes

12 Before we proceed to address the main issues in this appeal, we would like to deal briefly with the question of changing lanes, a matter which the Judge seemed to have placed some emphasis. In cross-examination the appellant admitted that as he approached the AMK T‑junction he filtered from the middle to the left lane. The Judge pointed out that the appellant did not mention anything about changing lanes either in his police report or in his report to his insurers. Accordingly, the Judge had some doubts as to the quality of his evidence.

13 It could not be disputed that the evidence about lane-changing was new. It was not alluded to by the appellant in his earlier statements. We agreed that in the light of such a change of evidence, the appellant’s evidence should be scrutinised with care.

Speed

14 We will first deal with the question of the speed of the appellant’s motorcycle as it approached the said junction. The Judge accepted the appellant’s evidence that he was travelling at 50km/h and that this was within the speed limit prescribed by law. Of course, the fact that a motorist drives within the prescribed speed limit does not mean that the motorist could not be negligent. The speed limit merely sets the maximum speed at which a motorist can drive on that road without infringing the law. The question of whether a motorist is negligent or not will depend on all the circumstances of the case of which speed is only one factor. The general overall condition of the road will determine whether the particular speed at which a motorist is driving is excessive. The same speed in one set of circumstances may well be perfectly in order whereas in a different set of conditions it may be considered to be excessive and the motorist thus negligent.

15 The Judge gave three reasons at [9] of his grounds of decision for holding that the speed of 50km/h at which the appellant was riding was excessive. First was the lighting. Second was the wet condition of the road. Third was the state of alertness of the appellant. There was evidence that at the relevant time that stretch of the road was lit by street lights. The appellant said that he could see things ahead of him. One must not draw the conclusion that lighting was inadequate simply because a thing or an occurrence was not seen or witnessed by a motorist. This could be due to a variety of other reasons which have nothing to do with the matter of lighting, such as the motorist’s focus not being in that direction or a momentary lapse in the motorist’s concentration.

16 We agree that, as a general rule, the fact that the road is wet is relevant in determining whether the speed at which a motorist is travelling is excessive as that condition can affect braking distance. However, it would appear that the Judge was concerned with visibility in view of the slight rain. He was troubled by the fact that the appellant did not see the deceased until the deceased was one car length away. However, the evidence of the appellant was that while there was a slight drizzle then, he was able to see clearly through the visor of his helmet. This aspect of his evidence was not challenged.

17 As for the Judge’s comment at [9] of his grounds of decision regarding the long night and the appellant’s lack of alertness, having spent “the last...