Lim Wei Meng Eugene v Fan Kian Sang

• Court: District Court (Singapore)
• Judge: Jonathan Toh Jun Hian
• Judgment Date: 03 August 2022
• Neutral Citation: [2022] SGDC 175
• Citation: [2022] SGDC 175
• Published date: 27 August 2022
• Hearing Date: 02 June 2022,21 March 2022,23 March 2022
• Docket Number: District Court Suit No 2949 of 2020
• Plaintiff Counsel: Leo Cheng Suan and Lee Shu Xian (Infinitus Law Corporation)
• Defendant Counsel: Willjude Vimalraj s/o Raymond Suras and Daniel Atticus Xu (Exodus Law Corporation)
• Subject Matter: Tort,Assault and battery,Provocation,Contributory liability,Damages,Assessment

District Judge Jonathan Toh Jun Hian: Introduction

The plaintiff was punched by the defendant several times and suffered various injuries to his head and face. He sued for damages for his injuries and for an adjustment disorder which required trauma-related counselling.

The defendant argued that he should not be liable for the plaintiff’s injuries because the “words and actions of the Plaintiff had provoked him, triggering him to punch the Plaintiff”.¹ He also filed a counterclaim for damages on the basis that the plaintiff had retaliated by kicking the defendant after being punched, causing the defendant injury.²

The trial proceeded solely on the plaintiff’s claim. The defendant’s counterclaim was ordered to be stayed on 16 August 2021 as the defendant failed to furnish the requisite medical report pursuant to Rules of Court (2014 Rev Ed), O 18 r 12(1A). The stay was lifted on 16 March 2022, less than a week before trial was due to start. I directed for the trial of the plaintiff’s claim to proceed first and for the defendant’s counterclaim to be tried separately as parties were ready for the trial of the plaintiff’s claim, but there was potentially a lengthy interlocutory process before the defendant’s counterclaim was ready to be tried.

The plaintiff’s cause of action is in the tort of battery. He must show that the defendant intentionally caused direct and unjustified physical contact with the plaintiff.³ The plaintiff adduced video evidence taken from his car’s front facing camera showing that the defendant had approached and verbally confronted the plaintiff, and then punched the plaintiff several times. Without more, the tort of battery appears to be made out.

In closing submissions, the defendant argued that he should not be liable because (a) the plaintiff provoked the defendant into a confrontation;⁴ and (b) the plaintiff re-engaged the defendant in a further confrontation when the defendant tried to leave.⁵ Alternatively, the defendant submitted that for these reasons, the plaintiff was contributorily liable for 50% of his damages.

The legal principles relating to provocation and contributory liability in the tort of battery

The defendant did not cite any authorities in support of his defence arising from the plaintiff’s alleged provocation or contributory liability.

There is no defence of “provocation” for the tort of battery recognised in common law. However, provocation may play a part in the recognised defence of self-defence. Per Lord Scott in Ashley v Chief Constable of Sussex Police [2008] 1 AC 962 at [18] (“Ashley”), “every person has the right also to protect himself by using reasonable force to repel an attack or prevent an imminent attack.” This included the situation where the defendant honestly and reasonably believed that he was under threat of imminent attack (Ashley at [85]). As such, where a plaintiff’s provocative acts result in the defendant physically attacking the plaintiff out of an honest and reasonable belief that the defendant was under threat of imminent attack, it is possible for him to argue that it was done in self-defence.

Provocation may also play a role in other potential defences. In Lane v Holloway [1968] 1 QB 379 (“Lane”), the defendant argued that the plaintiff’s provocative acts gave rise to two defences: first, ex turpi causa non oritur actio - no action could be brought for illegality since both parties were involved in an unlawful fight; and second, volenti non fit injuria - both parties had voluntarily participated in the fight and therefore voluntarily took on the risk of injury (Lane at 386E to 386G).

The facts of Lane are helpful to the analysis in this case. The defendant in Lane punched the plaintiff in the eye, causing serious injury. However, he was arguably provoked by the plaintiff into doing so. The plaintiff lived in a house neighbouring a café run by the defendant. They had a strained relationship due to complaints about the café and its customers. One night, the defendant’s wife and the plaintiff exchanged insults. In a confrontation between the plaintiff and the defendant, the plaintiff challenged the defendant to a fight by saying “I’ll take you on any time”.⁶ As the defendant moved toward the plaintiff, the plaintiff thought that he might be struck and threw a punch at the defendant’s shoulder. The defendant then retaliated by punching the plaintiff in the eye. The trial judge gave judgment for the plaintiff but significantly reduced damages on the basis that the plaintiff had contributed to his injury by insulting the defendant’s wife, challenging the defendant to a fight, and striking the first blow.

The English Court of Appeal rejected both defences on the basis that the defendant’s reaction in giving a hard punch to the plaintiff’s eye was out of all proportion to the exchange of insults, the challenge to a fight, and the plaintiff’s slight punch to the shoulder (Lane at 386G to 387A).

On the issue of contributory liability, Lord Denning MR in Lane overturned the trial judge’s holding that the plaintiff’s provocative actions operated to reduce his damages. He held that such provocation could be used to remove the element of aggravated damages, but could not reduce real damages (Lane at 387G).

Some 10 years later, in Murphy v Calhane [1977] 1 QB 94, Lord Denning MR distinguished Lane. He held that it was possible for a plaintiff’s conduct to be serious enough to amount to “fault” in s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (c 28) (UK) such that a finding of contributory liability could be made.

This issue of whether the plaintiff’s provocative acts may be taken into account to find contributory liability in the tort of battery was finally settled by the English Court of Appeal in Pritchard v Co-operative Group Ltd [2012] QB 320. As explained in Cavenagh Investment Pte Ltd v Kaushik Rajiv [2013] 2 SLR 543 at [36]:

…the English Court of Appeal in Pritchard v Co-operative Group Ltd [2012] QB 320 was asked to determine whether the defence in s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (c 28) (UK) (“the 1945 Act”), which is in pari materia with our provision, applies to the torts of assault and battery. The Court of Appeal explained (per Aikens LJ at [61]–[62]) that the purpose of the 1945 Act was to provide relief to claimants whose actions would have previously failed (because the common law incarnation of the defence was a complete defence) by allowing the courts to apportion damages. Its purpose was not to reduce damages which previously before the enactment of the statute would have been awarded. Therefore, if the common law defence did not apply to a tort pre-1945, the statutory defence would also not apply. The Court of Appeal held that because it could find no case before 1945 which applied the defence to the intentional torts of assault and battery, the statutory defence likewise did not apply.

(emphasis in bold)

Accordingly, the following principles apply to the analysis of the defendant’s argument of provocation and contributory liability: First, the defendant cannot rely on the plaintiff’s alleged acts of provocation to argue contributory liability for an action in the tort of battery. This is sufficient for me to reject the defendant’s submission that the plaintiff should be contributorily liable for 50% of his own injuries. Second, for the defence of self-defence, the question is whether the plaintiff’s alleged acts of provocation gave the defendant an honest and reasonable belief that the defendant was under threat of imminent attack. Third, other potential defences such as ex turpi causa non oritur actio or volenti non fit injuria will not succeed if the defendant’s acts of battery is disproportionate to the plaintiff’s alleged acts of provocation.

The alleged acts of provocation

The defendant alleged that the following events took place and that they were provocative: First, that the plaintiff had acted aggressively by initially driving up to the defendant’s car and sounding his horn loudly. After the defendant reversed to give the plaintiff space, the plaintiff again drove towards the defendant and sounded his horn. The defendant felt that this repeated and excessive sounding of the horn was provocative and dangerous.⁷ Second, that as the plaintiff drove past the defendant’s car, the plaintiff pointed the middle finger followed by an open palm sign which the defendant understood as the plaintiff asking the defendant to wait at that spot for the plaintiff to return to settle the dispute.⁸ Third, that during the confrontation between the plaintiff and the defendant on level four of the carpark, the plaintiff had a fierce expression on his face, with arms raised and showing a rude sign with a thumb showing in between his clenched fist.⁹ He then said “I don’t fuck care if your mother falls and dies”, and then applied force on the defendant’s chest and spit at the defendant, which triggered the defendant to react defensively with some punches.¹⁰

I will address each of these allegations as I review the facts.

The Facts

On 17 January 2018 at around 11 am, the plaintiff was driving home and intended to park his car at the multi-storey carpark at Block 748 Bedok Reservoir Crescent. To do so, he had to use the service road along Block 748C Bedok Reservoir Crescent, which was a single carriageway with one lane going in each direction.

The events leading up to the punches were captured on four video clips taken from the plaintiff’s in-car front facing camera with the time-stamps as follows: Video 1: 06:32:42 – 06:33:42; Video 2: 06:34:44 – 06:35:44; Video 3: 06:36:46 – 06:37:46; and Video 4: 06:37:47 – 06:38:47.

It is common ground that the time stamps on the videos do not reflect the time of the incident, which took place past 11 am on 17 January 2018.

As the plaintiff was driving along the service road, the...