Loh Luan Choo Betsy (alias Loh Baby) (administratrix of the estate of Lim Him Long) and Others v Foo Wah Jek

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 15 October 2004
• Neutral Citation: [2004] SGHC 230
• Date: 15 October 2004
• Subject Matter: Defences,Whether breach of South African statute conferring private right of action for damages on plaintiffs,Whether defence of inevitable accident established,Whether defendant breaching Singapore statutes by driving in South Africa without international driving licence,Defendant driving in South Africa when tyre burst resulting in accident,Accident occurring while defendant driving vehicle in South Africa without international driving licence required under South African statute,Breach of statutory duty,Tort,Negligence,Whether defendant negligent in his driving,Plaintiffs suing defendant for damages for driving vehicle negligently
• Docket Number: Suit No 127 of 2003
• Published date: 20 October 2004
• Defendant Counsel: Ramasamy K Chettiar (Acies Law Corporation)
• Court: High Court (Singapore)
• Plaintiff Counsel: Leonard Loo (Leonard Loo and Co)

15 October 2004 Judgment reserved.

Judith Prakash J:

Introduction

1 This action arises out of a road accident that took place in South Africa in which one passenger of the vehicle driven by the defendant was killed and another was seriously injured. The plaintiffs are first, Mdm Loh Luan Choo Betsy, the wife of the deceased, who is suing on behalf of his estate and also on her own account as a dependent of the deceased and a person who was injured in the accident, and second, her son, who also sustained physical injuries in the accident.

2 In December 2001, the deceased, Mr Lim Him Long, and his family (comprising his wife and three sons) and the defendant, Mr Foo Wah Jek, and his family (comprising his wife, daughter and two sons), were on holiday together in South Africa. The two men were both aircraft maintenance engineers and had worked together for some time. Their families were also on friendly terms.

3 In Cape Town, Mr Lim hired a Volkswagen Caravelle and a driver from a tour agency and they started their private tour in this vehicle on 8 December. The vehicle was classified as a car according to the South African road regulations but from the photographs in evidence, it appears to have been more of a passenger van than a saloon car. On 12 December, the group decided to return to Cape Town. They were then in Kynsna. They left Kynsna at about 10.00am and arrived at noon at a town named Outshoorn. After spending a few hours there, they proceeded to Calitzdorp. At that stage, the driver, Mr Zaid Ebrahim, told the group that he needed to rest as he was fasting and was very tired. Mr Foo then took over the wheel. He had been driving the vehicle for about two hours when the right rear tyre burst. As a result the vehicle veered and subsequently went off the road and rolled over. Both Mr Lim and Mr Foo were thrown out of the vehicle. Mr Lim died instantly. Mr Foo had only minor injuries. Mdm Loh and her son, Lim Yuan Wei, were also injured.

The evidence

4 In her affidavit Mdm Loh stated that on 12 December 2001 at about 3.00pm, Mr Ebrahim had complained of fatigue and had informed the party that he wanted a short rest. Mr Foo, however, wanted to press on with the journey and he unilaterally decided to take over the driving of the vehicle from Mr Ebrahim. She added that at that juncture, Mr Foo did not seek the consent of the other passengers as to whether he should or should not drive the vehicle. After Mr Foo had driven the vehicle for about 15 minutes, his daughter wanted to go to the toilet. Unfortunately, there was no town in the vicinity and Mr Foo then “proceeded to speed up his driving” so as to reach the next town quickly. At about 1745 hours, Mr Foo lost control of the vehicle. It was then travelling towards Barrydale along the R62 road that ran between the towns of Ladysmith and Barrydale. The vehicle then veered off the road.

5 Under cross-examination, Mdm Loh denied that the four adults had had a discussion about who should take over the driving from Mr Ebrahim. She maintained that it was Mr Foo who had persuaded Mr Ebrahim to let him drive but she agreed that the other three adults had not objected to Mr Foo’s proposal. It was put to her that the members of the party had used the toilet facilities at Calitzdorp. After that the vehicle had passed Ladysmith on its way to Barrydale but there had been no request by Mr Foo’s daughter to use the toilet. Mdm Loh disagreed. She maintained that she was awake from the time of the changeover in drivers up to the time of the accident but she could not remember how long Mr Foo had been driving for before the accident took place. She did not agree, however, that the journey took about one and a half to two hours. When asked about the speed of the vehicle, she said she did not know what the speed was. However, she conceded that she had not been concerned that he was speeding and had not felt unsafe. She also agreed that from the time Mr Foo took over the driving up till the time of the incident he had been able to manage the vehicle well.

6 Mdm Loh also stated that before the vehicle went off the road, she heard a loud sound. However, she did not remember what the sound was. She agreed that she was aware before the vehicle went off the road that one of its tyres had burst but she would not agree that she knew it was only after the tyre burst that the vehicle started to go out of control. When asked what had caused the vehicle to go off the road, her answer was “I don’t know”. When asked what Mr Foo had done wrongly that caused the accident, her reply was “negligence”. When she was asked what the act of negligence was, her reply was “I don’t know”. She was then asked whether it was her complaint that Mr Foo was speeding. She replied that it was. She also complained that he was not careful. Finally, she said her complaint against him was that he was speeding and he should not have taken over the driving.

7 Mdm Loh was shown a copy of the statement that she had allegedly given to the Barrydale police after the accident. In that statement, she had said that Mr Foo was not driving the vehicle fast but she could not see how slowly he was going. When shown that statement in court, Mdm Loh asserted that the signature appearing at the bottom of the statement was not her normal signature and said that she could not remember signing it. Subsequently she asserted that she had not given any statement to anyone. Mdm Loh was reminded that Inspector Andrew Mark Lagerwald of the South African Police Services attached to the Barrydale precinct had testified that according to witness statements he had taken, the vehicle was not travelling fast at the time of the accident. It was within the speed limit of 100km/h. In response, she said that Inspector Lagerwald had not taken a statement from her.

8 The evidence of Zaid Ebrahim was that the party had left Outshoorn between 3.00pm and 4.00pm and had subsequently reached the town of Calitzdorp where they stopped at a service station in order that the group could use the toilet facilities. He was very tired by then as it was the fasting month of Ramadan. He therefore informed the group that he would not be able to drive until he had had time to rest. The group felt that stopping would be a waste of time and they then discussed it among themselves. A short time thereafter, Mr Foo told him that he would take over the wheel. He then got into the front passenger seat next to Mr Foo. Mr Ebrahim guided Mr Foo out of the town and once they got onto the highway about five to ten minutes later, Mr Ebrahim went to sleep. He was satisfied at that stage that Mr Foo was a competent driver. He did not know what caused the vehicle to go off the road as he was still asleep at that time.

9 Under cross-examination, Mr Ebrahim said that when Mr Foo volunteered to take over the driving, he had mentioned that he had a driver’s licence. All four adults in the group had spoken to him about continuing the journey with one of them driving. Mr Ebrahim’s evidence was that it would take about 45 minutes to one hour to travel between Calitzdorp and Ladysmith because of the winding nature of the road which is between mountain cliffs on one side and a steep ravine on the other. It would take another 45 minutes to travel between Ladysmith and the place where the vehicle went off the road. Mr Ebrahim told me that he had driven the vehicle for two days prior to the incident and had not experienced any problems either with the brakes or the tyres during that period. He had checked these parts before the party had left on the tour and also while the tour continued. The condition of the tyres was satisfactory as far as he was concerned.

10 The defendant in his affidavit of evidence-in-chief said that he took over the driving of the vehicle because Mr Ebrahim was tired. He discussed the matter with Mr Lim and their respective spouses as all of them were qualified drivers. At that point no one knew that an international driver’s licence was required for foreigners to drive in South Africa.

11 When he took over the vehicle, Mr Foo maintained a speed of about 100km/h. This was the speed limit and, being in a foreign country he did not want to exceed it and be stopped by the traffic police. Besides, all of them were chatting and taking in the sights. There was no urgency for him to drive the vehicle beyond the speed limit or at excessive speed. The accident took place at about 5.30pm. By then he had been driving for about two hours. At that time, they were proceeding along a straight stretch of the road R62 between Ladysmith and Barrydale. There was no other vehicular traffic. The road surface was dry and visibility was very good.

12 All of a sudden, Mr Foo heard a flapping sound and he immediately shouted “[expletive] … tyre burst”. He stepped on the brakes, but the vehicle veered to the right. He released the brakes and turned the steering wheel to the left. The vehicle did turn towards the left and he then stepped on the brakes again with a view to bringing the vehicle to a halt. Instead it veered to the right and this time, Mr Foo could not do anything to prevent the vehicle from going off the road and going down the slope. Mr Foo momentarily lost consciousness. When he regained consciousness he found himself lying in front of the vehicle and on the ground. He realised he had gone through the windscreen. He then saw the deceased’s body lying on the ground. Mr Foo went to help Mr Lim and called his name several times but he did not respond. He then went to help the other passengers who were in the vehicle.

13 Mr Foo maintained that the cause of the accident was the bursting of the right rear tyre. When he took over the driving of the vehicle he did not know that that tyre was defective. It looked fine. On the day of the accident, they had been travelling in the vehicle from 10.00am up to 3.00pm without experiencing any problems. Mr Foo did not know...