Leow Peng Yam v Kang Jia Dian Aryall

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 15 June 2022
• Neutral Citation: [2022] SGHC(A) 25
• Published date: 21 June 2022
• Docket Number: Civil Appeal No 111 of 2021
• Plaintiff Counsel: Gregory Vijayendran SC, Evelyn Chua Zhi Huei and Tomoyuki Lewis Ban (Rajah & Tann Singapore LLP) (instructed), Ganesh S Ramanathan and Renuka d/o Karuppan Chettiar (Karuppan Chettiar & Partners)
• Defendant Counsel: Raj Singh Shergill and Koh Jia Min Desiree (Lee Shergill LLC)
• Subject Matter: Civil Procedure,Limitation,Limitation of Actions,Particular causes of action,Tort,When time begins to run,Section 24A of the Limitation Act
• Hearing Date: 23 May 2022
• Court: High Court Appellate Division (Singapore)

Woo Bih Li JAD (delivering the grounds of decision of the court): Introduction

This appeal arose from a claim by the respondent, Ms Aryall Kang Jia Dian, against the appellant, Mr Leow Peng Yam, for negligently causing her personal injury. On 14 May 2016, the respondent was severely injured in a collision with a bus driven by the appellant and she suffered serious cognitive difficulties as a result.

The appellant has accepted that the respondent’s injury was caused by his negligence and the parties agreed that the appellant’s liability was to be fixed at 85% in the respondent’s favour if she succeeds in her claim. The sole issue related to whether the respondent’s action was time-barred. The respondent succeeded in her claim at first instance before a District Judge (the “DJ”). The appellant’s appeal to a Judge of the General Division of the High Court (the “Judge”) was dismissed: see Aryall Kang Jia Dian v Leow Peng Yam [2021] SGDC 91 (the “Trial GD”) and Leow Peng Yam v Aryall Kang Jia Dian [2021] SGHC 275 (the “HC GD”) respectively. The appellant then sought, ultimately, to bring a further appeal to the Appellate Division of the High Court (the “AD”). We dismissed the appeal in the circumstances mentioned below.

Background to the dispute

On 14 May 2016, when the respondent was crossing a signalised traffic junction, an SMRT Corporation Ltd (the “SMRT”) bus driven by the appellant collided with her. She was conveyed to Khoo Teck Puat Hospital (“KTPH”) by ambulance and was found to have, among other injuries, severe head and brain injuries as well as psychological conditions and symptoms, as follows:¹ “Fracture of the left parietal bone, acute subdural haematoma along right frontal, temporal and parietal lobes with traumatic subarachnoid haemorrhage in the right sylvian fissure and haemorrhagic contusion of the left occipital lobe. Continuing disabilities including anosmia/hyposmia, poor memory, inability to concentrate and anxiety, MRI brain in 2017 showed siderosis in the bilateral temporal lobes”; “Adjustment disorder with mixed anxiety and depressed mood”; “Benign positional paroxysmal vertigo”; and “Cognitive disabilities in terms of immediate and delayed memory and attention span”.

As a result of the above injuries, the respondent was in considerable pain, and was dazed and disoriented. She was also in a state of amnesia, which affected her memory of the accident and her short-term memory.²

On 23 May 2016, the respondent was discharged from KTPH and given hospitalisation leave until 23 August 2016.³ On the day of her discharge, the respondent filed a police report regarding the accident with the traffic police at a neighbourhood police centre. She did so because while she was hospitalised, a police officer had informed her that the traffic police required her to lodge an accident report so that they could begin investigations. She claimed that because she had no recollection of the accident at the time, her father helped her with this task and she simply signed the report.⁴ Despite her memory loss, she was also able to provide the traffic police with details of the accident location, and time and date, because she had previously been given a “green card” either by a nurse or the traffic police at the hospital.⁵ Also, it was assumed below that on that same day, the respondent had asked the traffic police for the bus driver’s name but was told that this information was confidential.⁶ However, it was unclear when this question and response actually took place. We will say more about this later.

The respondent met with lawyers on 11 October 2016 and subsequently discovered the identity of the driver of the bus that had collided into her, ie, the appellant. However, as noted by the Judge, the respondent did not state the date on which she actually discovered the appellant’s identity: see the HC GD at [13]. She filed the writ of summons against the appellant on 18 June 2019, which was three years, one month and four days after the accident on 14 May 2016.

From at least February 2017, the respondent was treated by, inter alios, Dr Eugene Yang (“Dr Yang”), a Senior Consultant and the Head of the Division of Neurosurgery in the Department of Surgery at KTPH.⁷ The respondent adduced Dr Yang’s expert evidence in support of her case.

Procedural history and the decisions below

At first instance, the appellant did not dispute that he was negligent and at the commencement of the trial, the parties informed the court of their agreement that the liability of the appellant was to be fixed at 85% in the respondent’s favour, should she succeed in her claim: see the Trial GD at [2]. The sole issue concerned whether the respondent’s claim was time-barred. The appellant submitted that the action was brought out of time under s 24A(2)(a) of the Limitation Act (Cap 163, 1996 Rev Ed) (the “Limitation Act”) because under that provision, the respondent was to bring her action within three years from the date on which the cause of action accrued. Therefore, she should have filed her action before 14 May 2019. The respondent relied on s 24A(2)(b) of the Limitation Act which allows her three years from the earliest date on which she has the knowledge required for bringing an action for damages in respect of her injuries. Under s 24A(4)(b), the knowledge required means knowledge of the identity of the bus driver, ie, the appellant. The respondent submitted that a period of eight weeks should be factored in calculating the limitation period in view of her cognitive impairment caused by the accident. Her action was therefore not time-barred.

On 28 April 2021, the DJ decided in favour of the respondent. She issued her grounds of decision on 3 June 2021. She stated that, having regard to the respondent’s medical condition, the earliest point in time when the respondent could reasonably have started to have the requisite knowledge to bring an action against the appellant would be at least eight weeks from the date of the accident on 14 May 2016, ie, around mid-July 2016: see the Trial GD at [34] and [38]. Hence, the DJ held that the respondent’s action was not time-barred.

On 16 September 2021, the appellant’s appeal was dismissed by the Judge: see the HC GD at [14] and [37].

The Judge agreed that the action was not time-barred. Pertinently, the Judge held that, on a plain and ordinary reading of s 24A of the Limitation Act and from the extant case law, a fact-specific approach was to be taken to ascertain the requisite knowledge under the provision. In her view, the court should have regard to all of the particular plaintiff’s circumstances in determining whether the plaintiff could reasonably have been expected to acquire the requisite knowledge from facts observable and ascertainable by her. In other words, whatever a plaintiff’s personal characteristics or intelligence may be, she is still held to the standard of reasonableness: see the HC GD at [24]. Hence, a plaintiff, such as the respondent, whose cognitive functioning was impaired such that she could not reasonably be expected to acquire the relevant knowledge until a later date fell squarely within the class of plaintiffs for whose benefit ss 24A(2)(b), 24A(4)(b) and 24A(6) of the Limitation Act were enacted: see the HC GD at [28].

The Judge also dismissed the appellant’s contention that the facts showed that the respondent should have reasonably acquired knowledge of his identity by 23 May 2016 and, relatedly, his challenge against Dr Yang’s evidence: see the HC GD at [29]–[36].

On 15 October 2021, the appellant filed an appeal to the AD and subsequently applied unsuccessfully in CA/OS 4/2022 to transfer the appeal from the AD to the Court of Appeal. The appeal was then fixed for hearing by this court. As we will elaborate below, there was a preliminary issue as to whether leave to appeal to this court was required.

The parties’ cases

We briefly set out the parties’ respective cases in this appeal.

The appellant made the following three main contentions: First, in determining the requisite knowledge under s 24A(2)(b) read with ss 24A(4)(b) and 24A(6)(a) of the Limitation Act, the court should apply an objective test which excludes a plaintiff’s subjective characteristics in determining when the three-year period begins to run. In this regard, the Judge erred in applying a fact-specific approach.⁸ Second, the Judge erred in accepting Dr Yang’s evidence as expert testimony and according it substantial weight.⁹ Third, the Judge erred in finding that it was irrelevant that the respondent had applied her mind to the question of the appellant’s identity when she asked a police officer the identity of the bus driver, without receiving an answer, on 23 May 2016.¹⁰

The respondent made the following contentions in reply:¹¹ First, the Judge did not err in law by using a fact-specific approach and in any case, it was unnecessary for the court to decide the issue of whether an objective test should apply since it would lead to the same outcome on the facts of the present case. Second, Dr Yang is a qualified doctor, and his evidence was credible and unbiased. Also, the appellant did not testify at the trial, call any witness, or adduce any other evidence to contradict Dr Yang’s testimony. Third, the Judge correctly found that given the respondent’s cognitive impairments, she could not reasonably be expected to acquire knowledge of the appellant’s identity or to do more to acquire specific knowledge of the appellant’s identity, by the mere fact that she asked the police officer if the traffic police knew the identity of the bus driver on 23 May 2016.

whether leave to appeal was required

In their respective cases and written submissions, the parties did not address the issue of whether leave from this court was required for a further appeal from the General Division of the High Court.

The Supreme...