Lew Keh Lam v Tan Boon Gim

• Jurisdiction: Singapore
• Judge: Joanne Leong
• Judgment Date: 24 June 2021
• Neutral Citation: [2021] SGMC 41
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Court Suit No 6241 of 2020 (Summons No 5713 of 2020)
• Published date: 31 August 2021
• Year: 2021
• Hearing Date: 31 March 2021,17 May 2021,24 February 2021
• Plaintiff Counsel: Lew Chen Chen and Wong Yan Ying (Chambers Law LLP)
• Defendant Counsel: Cham Xin Di, Cindy (Tan Kok Quan Partnership)
• Subject Matter: Res Judicata,Issue estoppel,Extended doctrine of res judicata,Civil Procedure,Default judgment,Setting aside
• Citation: [2021] SGMC 41

Deputy Registrar Joanne Leong: Introduction

The dispute in this case arose out of a road traffic accident between cars driven by the plaintiff and the defendant respectively. The plaintiff was not the owner of the car that he drove. Prior to the commencement of this suit, a separate suit was brought by the owner of the vehicle driven by the plaintiff, relating to the very same accident, in respect of the property damage caused. In that prior suit, interlocutory judgment was entered against the defendant in default, and the parties eventually settled on the quantum of damages. Several months later, the plaintiff brought this suit against the defendant claiming for damages in respect of personal injuries which resulted from the accident. In default of appearance, interlocutory judgment was again entered against the defendant.

This application was filed by the defendant to set aside the interlocutory judgment entered against him in this suit. The application involved an interesting issue of res judicata, specifically, whether the defendant should be precluded from raising any defence to the personal injury claim by virtue of the prior default judgment entered against him by the owner of the plaintiff’s car, even though the plaintiff himself had no involvement in those prior proceedings. I make the observation that the potential for issue estoppel only arose because of the particular facts of this case, namely that the owner and driver of the plaintiff’s vehicle were different entities. If the owner and the driver of the plaintiff’s vehicle had been one and the same, it would have been a contravention of s 35 of the State Courts Act (Cap 321, 2007 Rev Ed) to begin with for the cause of action against the defendant to be divided by suing separately for different heads of damage (see Ng Kong Choon v Tang Wee Goh [2016] 3 SLR 935 at [61], [75] and [77]).

Having considered the parties’ written and oral submissions, I held that the defendant had established a prima facie defence to the claim, and was not precluded from raising such a defence by operation of any res judicata doctrine. I therefore allowed the defendant’s application to set aside the default judgment. I now provide the full grounds of my decision.

Facts

The accident occurred at the intersection of Jalan Senang and Jalan Lapang (“the Intersection”) in March 2019. At the material time, the defendant was driving a Honda motor car with registration number SKD988Z (“the Honda”) along Jalan Senang heading towards the Intersection. The plaintiff was driving a Mercedes motor car with registration number SKR2354R (“the Mercedes”) along Jalan Lapang, also heading towards the Intersection.¹

Jalan Senang is a one-way road with two lanes, while Jalan Lapang is a two-way road divided by a centre white line with a single lane for each direction of traffic.² The Intersection is an uncontrolled cross-junction, with a solid white line and stop sign along Jalan Senang just prior to the Intersection. Vehicles approaching the Intersection along Jalan Senang were thus expected to stop and give way to vehicles along Jalan Lapang. In short, as the plaintiff and the defendant approached the Intersection, the plaintiff had the right of way.

The plaintiff and the defendant approached the Intersection at about the same time. The defendant, however, failed to come to a stop before the solid white line along Jalan Senang, thus grazing the front of the Honda against the right side of the Mercedes as the latter drove past.³

Procedural history The related suit

Although the plaintiff was the driver of the Mercedes on the day of the accident, the Mercedes was owned by Wee Leong Realty Pte Ltd (“Wee Leong Realty”). According to the plaintiff, Wee Leong Realty Pte Ltd was his employer.

On 25 September 2019, Wee Leong Realty commenced a claim against the defendant for property damage to the Mercedes caused by the defendant’s negligence in the same accident, vide MC/MC 14116/2019 (“MC 14116”). The plaintiff was not a party to MC 14116.

Judgment in default of appearance was entered against the defendant in October 2019 in respect of MC 14116. Thereafter, the defendant (through his insurer) and Wee Leong Realty reached a settlement agreement on the quantum of damages. Terms of the settlement were recorded in court in March 2020, and MC 14116 was formally discontinued in September 2020.

The present suit and application

In June 2020, the plaintiff filed the present suit against the defendant claiming compensation for personal injuries sustained in the accident. The plaintiff obtained judgment in default of appearance against the defendant.

The defendant thereafter filed the present application to set aside the default judgment entered against him.

Applicable legal principles

For context, pursuant to O 13 r 8 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), the court may set aside or vary any judgment entered in default of appearance. The test for setting aside judgments in default of appearance, where the judgment is a regular judgment, is whether the defendant can establish a prima facie defence in the sense of showing that there are triable or arguable issues: Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907 at [60].

The parties’ cases

The defendant argued that he has a prima facie defence because, at the material time, the plaintiff was straddling across the lane dividers on Jalan Lapang, such that part of the Mercedes was driving on the wrong side of the road against the flow of traffic. The defendant further contended that the plaintiff did not take adequate precautions when approaching the Intersection.⁴ The plaintiff therefore should bear partial liability for the accident arising from his contributory negligence.⁵

In response, the plaintiff argued that the defendant’s application should be dismissed because the factual arguments constituting his defence were precluded by the doctrine of issue estoppel. Specifically, the issue of the defendant’s liability for the accident had already been determined by the default judgment entered in MC 14116, and the defendant should not be permitted to relitigate the issue in this suit. In the alternative, the plaintiff argued that because the defendant should have raised his defence on the issue of liability in MC 14116, but did not do so, his raising of his defence in this suit constituted an abuse of process and should not be allowed.

Issues to be determined

The following issues arose for determination in this case: whether the defendant established a prima facie defence; whether the defendant was precluded from raising his defence by operation of the doctrines of issue estoppel or abuse of process.

Whether the defendant established a prima facie defence

In my judgment, the defendant had raised facts showing a prima facie defence on the merits. The defendant’s case was that the accident was caused in part by the plaintiff’s contributory negligence. The defendant relied on video footage from the defendant’s in-car camera that allegedly showed the plaintiff failing to slow down when approaching the Intersection, and even crossing the middle lane divider along Jalan Lapang. Apart from the defendant’s in-car camera footage, the plaintiff himself stated in his reply affidavit that because there were illegally parked vehicles on the left lane of Jalan Lapang, he was forced to drive on the right lane (which was meant for opposing traffic) as he was approaching the Intersection.⁶ While I made no determination at this juncture as to what had in fact occurred, I was satisfied that there was at least a triable issue of whether the plaintiff had taken due care when entering the Intersection.

In this connection, it should be noted that even if the plaintiff had the right of way at the Intersection, the reasonableness of the plaintiff’s actions at the material time is relevant to the determination of the defendant’s degree of liability. As stated in Laura Lau et al, Motor Accident Guide: A Guide on the Assessment of Liability in Motor Accident Cases (Mighty Minds Publishing, 2nd Ed, 2017) at p 38, the indicative starting point for the apportionment of liability where a plaintiff has the right of way at an uncontrolled cross-junction is 80% to the defendant and 20% to the plaintiff. This is because even if the plaintiff has the right of way, he should keep a lookout for vehicles entering the major road from an adjoining minor road, and should also take evasive action to avoid a collision. Likewise, the Court of Appeal in SBS Transit Ltd v Stafford Rosemary Anne Jane (administratrix of the estate of Anthony John Stafford, deceased) [2007] 2 SLR(R) 211 recognised at [33]–[34] that: … [T]he law requires the motorist to act on the basis that there may be negligence and incompetence on the part of other road users and to make allowance for them, but without having to contemplate possibilities that are remote. … The crux of the issue is what a reasonable person would apprehend in a particular set of circumstances. …

Accordingly, whether and to what extent the plaintiff was contributorily negligent would, prima facie, constitute triable issues.

However, that was not the end of the inquiry, given the res judicata arguments raised by the plaintiff in this case. If the issue of the defendant’s liability was indeed precluded from being relitigated by operation of the doctrine of res judicata, then, as the defendant accepted, there would be no triable issues. I now consider the issues of res judicata on which the present case turned.

Whether the defence was precluded by res judicata

The doctrine of res judicata consists of three conceptually distinct principles – cause of action estoppel, issue estoppel and “the extended doctrine of res judicata” (also known as the defence of abuse of process): Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 (“Goh...