Ismail bin Sukardi v Kamal bin Ikhwan and Another

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 31 October 2008
• Neutral Citation: [2008] SGHC 191
• Plaintiff Counsel: Niru Pillai (Niru & Co)
• Published date: 03 November 2008
• Court: High Court (Singapore)
• Defendant Counsel: Lynette Chew (Harry Elias Partnership)
• Subject Matter: Civil Procedure,Conflict of Laws

31 October 2008

Tay Yong Kwang J:

1 On 13 August 2008, an Assistant Registrar (“the AR”) of the Supreme Court ordered a stay of all further proceedings in this action upon the second defendant’s application under O 12 r 7(1)(g) and/or O 12 r 7(2) of the Rules of Court (Cap 322, R5, 2006 Ed). Upon the plaintiff’s appeal to a Judge in Chambers (RA No. 334 of 2008), I allowed the appeal.

The facts

2 This action results from a road accident in Malaysia. On the night of 14 June 2006, the plaintiff, his wife and their five children boarded bus number AFG 5555 (“the bus”) in Penang, Malaysia. The bus was driven by the first defendant who was at the material time an employee of the second defendant, the operator of the bus, and it was supposed to take the plaintiff and his family from Penang to Singapore.

3 At about 6.20am on 15 June 2006, near the 73.4km mark of the North-South Highway in Malaysia, the bus collided into the rear of a lorry number JGX 3074 which had a trailer number TJ 7520 (collectively referred to as “the lorry”). The plaintiff’s wife passed away as a result of this accident.

4 Consequently, the plaintiff, on behalf of his children and himself, commenced this action against the defendants, alleging negligence on the part of the first defendant and vicarious liability on the part of the second defendant. The plaintiff’s claim is for loss of dependency under the following heads of damages:

(a) loss of support under s 20 of the Civil Law Act (Cap 43, 1999 Rev Ed);

(b) damages for bereavement under s 21 of the Civil Law Act; and

(c) funeral expenses.

5 The second defendant took the view that Malaysia and not Singapore is the more appropriate forum to try this action and therefore applied by way of summons 2471 of 2008 for the action to be stayed under O 12 r 7(1)(g) and/or O 12 r 7(2) of the Rules of Court which are in the following terms:

7(1) A defendant who wishes to dispute the jurisdiction of the Court in the proceedings by reason of any such irregularity as is mentioned in Rule 6 or on any other ground shall enter an appearance and within the time limited for serving a defence apply to the Court for –

…

(g) a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in respect of the subject-matter of the claim or the relief or remedy sought in the action; or

…

(2) A defendant who wishes to contend that the Court should not assume jurisdiction over the action on the ground that Singapore is not the proper forum for the dispute shall enter an appearance and, within the time limited for serving a defence, apply to Court for an order staying the proceedings.

The AR agreed with the second defendant and granted a stay of proceedings. The plaintiff appealed against the stay.

6 At the hearing of this appeal, I was informed that the first defendant is no longer an employee of the second defendant and that he has not been served with the court documents by the plaintiff. The second defendant has not filed its defence yet and is still trying to locate the first defendant.

The plaintiff’s submissions

7 The plaintiff has the indisputable right to commence this action in Singapore. The only question is whether this action ought to be stayed in favour of a Malaysian action on the ground of forum non conveniens.

8 The important point to note is that the deceased wife was a passenger on the bus and therefore no degree of blame could attach to her where liability for the accident was concerned. The only issue on liability will be whether the defendants can show that the first defendant as the driver of the bus was not liable at all for the accident. It is not, as contended by the second defendant, whether the accident was caused solely by the first defendant. The plaintiff only needs to show that the first defendant was a cause, rather than the sole cause, of the accident.

9 As between the plaintiff and the defendants, there can be no defence in respect of liability for the accident. The second defendant has admitted as much in its affidavit of Lim Yin Mei Sue-Anne of 6 June 2008 where the deponent states at [7] thereof that one of the issues that arises in this action is that of apportionment of liability between the defendants and the driver of the lorry. The only issue is whether the defendants are entitled to seek contribution from the driver/owner of the lorry by commencing third party proceedings but that does not concern the plaintiff at all.

10 The plaintiff will be seeking a consent interlocutory judgment against the defendants for damages to be assessed. Alternatively, the plaintiff will apply for judgment under O 14 or under O 27 of the Rules of Court. The defendants could then decide to sue the driver/owner of the lorry in the Malaysian courts if they wish.

11 The only issue in this action is therefore the amount of damages and this is dealt with according to the law of the forum. If the assessment of damages takes place in Singapore, Singapore law applies. In considering the factors pointing to one jurisdiction or the other, the court should have regard only to those that relate to quantum of damages and not those pertaining to liability.

12 There is no suggestion that the assessment of damages is more closely connected to Malaysia than to Singapore. The plaintiff, his deceased wife and their children are Singaporeans. The deceased wife lived and worked in Singapore. Evidence relating to her income, expenditure and savings is to be found here. Her family live and will continue to live in Singapore and this is where their expenses are incurred.

The second defendant’s submissions

13 As a general rule, the place where the tort occurred is the natural forum for determining the claim arising therefrom. As the collision took place in Malaysia, it follows that Malaysia is the country with the most real and substantial connection to the claim. Liability among the parties (the deceased wife, the second defendant and the driver/owner of the lorry as potential third party) ought to be decided by the law of Malaysia as it is within the ordinary expectation of the parties that the law of the place where the wrong occurred would govern the rights and duties of the parties. In the same vein, the issue of quantum of damages should also be determined in accordance with Malaysian law.

14 There are material differences between the Civil Law Act of Singapore and that of Malaysia where liability and damages are concerned. Given such divergence between the two sets of law, there will be savings in time and costs where a Malaysian court applies the law of its own jurisdiction.

15 Although the plaintiff will be calling a number of witnesses located in Singapore, the location of witnesses is only one of the factors that ought to be taken into consideration. V K Rajah J (as he then was) in Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR 381 (“Peters Roger”) has observed at [26]:

The easy and ready availability of video link nowadays warrants an altogether different, more measured and pragmatic re-assessment of the need for the physical presence of foreign witnesses in stay proceedings. Geographical proximity and physical convenience are no longer compelling factors nudging a decision on forum non conveniens towards the most “witness convenient” jurisdiction from the viewpoint of physical access. … In other words, the availability and accessibility of video links coupled with its relative affordability have diminished the significance of the “physical convenience” of witnesses as a yardstick in assessing the appropriateness of a forum. …

This factor ought to be given little weight here because it is unlikely that all the listed witnesses will be called to testify as the substance of their evidence is likely to overlap. Secondly, the plaintiff has not stated that any of the witnesses are unwilling or unable to travel to Malaysia to testify. Many of them are family members of the deceased wife anyway. Thirdly, they could easily testify via video-conference.

16 On the other hand, the second defendant has Malaysian witnesses located in Malaysia. They include the first defendant, the second designated driver of the bus, the driver of the lorry as third party and other independent witnesses who may be located by the Malaysian police. Save for the first defendant, the other witnesses have no obligation to appear on behalf of the second defendant and are unlikely to come to court willingly. They cannot be compelled to come to Singapore to testify. The second defendant does not accept that the defendants have no defence to the plaintiff’s claim. It is contending that the first defendant was not negligent and that the accident was caused by and/or contributed to by the driver of the lorry.

17 While acknowledging that the plaintiff and his family are all Singapore citizens residing here and that the deceased wife worked in Singapore, the second defendant highlights that it is a company incorporated in Malaysia with its assets situated there. Its insurer having conduct of this claim is also a Malaysian company with its assets there. Any judgment obtained by the plaintiff will have to be enforced in Malaysia.

18 Potential third party proceedings should be given their appropriate weight and where a defendant intends to initiate such proceedings, it is generally convenient, in the interests of justice and in saving court time and costs, for such proceedings to be determined at the same time and in the same court as the main action (per Chan Seng Onn J (“Chan J”) in Dresdner Kleinwort Ltd v CIMB Bank Bhd [2008] SGHC 59). However, Chan J in that case (at [123]) took the view that the issues that would be raised in the third party proceedings would prolong the main action unnecessarily by raising issues that were of no concern to the other parties and would cause it to be more costly and inconvenient overall for all parties involved.

19 The second defendant intends to...