Ng Li Ning v Ting Jun Heng and another

• Judge: Tay Yong Kwang JCA
• Judgment Date: 30 September 2021
• Neutral Citation: [2021] SGCA 93
• Citation: [2021] SGCA 93
• Defendant Counsel: Teo Weng Kie, Shahira binte Mohd Anuar and Cham Xin Di Cindy (Tan Kok Quan Partnership),Ramasamy s/o Karuppan Chettiar and Simone B Chettiar (Central Chambers Law Corporation)
• Hearing Date: 13 August 2021
• Plaintiff Counsel: Anthony Wee and Koh Keh Jang Fendrick (Titanium Law Chambers LLC)
• Docket Number: Civil Appeal No 196 of 2020
• Published date: 05 October 2021
• Court: Court of Appeal (Singapore)
• Subject Matter: Tort,Contributory negligence,Negligence

Tay Yong Kwang JCA (delivering the grounds of decision of the court): The facts

This appeal concerns the apportionment of liability in a very unfortunate collision involving two vehicles in which a young female passenger in one of the vehicles lost her life and the other passengers in the same vehicle suffered injuries. The traffic accident took place on Thursday, 19 April 2018, at around 7.30pm at the traffic lights controlled cross-junction where Clementi Road intersects Commonwealth Avenue West (“CAW”). The roads were dry and visibility was good.

A Nissan vehicle (“the Nissan”) driven by the appellant was travelling along CAW towards Boon Lay Way. A taxi driven by the second respondent (“the Taxi”) came from the opposite direction of CAW and was waiting to turn right into Clementi Road towards the Ayer Rajah Expressway (“AYE”). The Taxi was the first vehicle in the inner right-turning lane at the junction. The traffic lights were green in favour of the Nissan. The “green arrow” traffic light for the Taxi to proceed to turn right had not yet come on but the Taxi had the discretion to proceed across the junction if it was safe to do so.

There were vehicles behind the Taxi also waiting to turn right. There were also vehicles waiting in the other right-turning lane on the Taxi’s left. Similarly, there were vehicles waiting at the other side of CAW, intending to turn right into Clementi Road in the direction of Upper Bukit Timah Road.

The first respondent (who was the plaintiff at the trial in the High Court) was one of four passengers inside the Taxi. He was seated in the rear middle seat. His friends occupied the front seat and the other two rear seats. The passenger seated next to the Taxi’s rear left window was a young female.

When there was a lull in traffic proceeding from CAW in the same direction as the Nissan and the traffic lights were still green for traffic coming from that direction, two motorcycles waiting with the Taxi and the other vehicles in the turning lanes proceeded to cross the junction. The waiting vehicle to the left of the Taxi also started to move forward. This vehicle was referred to at the trial as the “unknown vehicle”. A moment or two later, the Taxi followed although the second respondent’s view of his left was obstructed partially by the unknown vehicle. It was not disputed that the second respondent merely followed the unknown vehicle without ensuring that it was safe for him to do so.

Just as the unknown vehicle managed to cross the junction, the Nissan charged into the junction and missed colliding into the rear end of the unknown vehicle narrowly. Unfortunately, the Taxi was then in the path of the Nissan which smashed into the Taxi’s left side. The impact was so great that the Nissan’s tyres were lifted off the road for a moment or two. The Taxi was sent spinning across the junction and it crossed the front view of the vehicles stopped at Clementi Road heading in the direction of Upper Bukit Timah Road. The Taxi’s rear left female passenger’s head was seen swinging wildly outside the Taxi’s rear left window, with its glass apparently shattered. Sadly, she died in the accident. The Taxi then started to reverse as if on its own volition and finally ended up along the stretch of Clementi Road that leads to the AYE.

The sequence of events described above comes from video footages recorded by the in-vehicle video-cameras of the vehicle waiting immediately behind the Taxi at the junction and of the vehicles stopped at Clementi Road, coming from the direction of the AYE and heading in the direction of Upper Bukit Timah Road. The video footage from the vehicle waiting immediately behind the Taxi had sound recording and it captured the loud sound of the impact clearly.

The first respondent was injured in the accident and he commenced action against the drivers of the Nissan and the Taxi. The trial in the High Court concerned only the issue of liability, in particular, the respective percentages of contributory negligence of the first respondent (the plaintiff at the trial and the rear middle passenger in the Taxi), the second respondent (the first defendant at the trial and the driver of the Taxi) and the appellant (the second defendant at the trial and the driver of the Nissan). The decision of the trial Judge is set out in Ting Jun Heng v Yap Kok Hua and another [2021] SGHC 44 (“GD”).

The allegation against the first respondent was that he was not wearing a seat belt while commuting in the Taxi. The trial Judge was aware that whether a passenger put on the seat belt or not was irrelevant to the occurrence of the accident. However, he opined that what mattered in a claim in negligence was not just the accident or collision itself but also the damage that flowed from it. He held that the relevant question was whether the first respondent was responsible for the injury suffered by him (GD at [68]). On the evidence, he found that it was not proved that the first respondent did not put on his seat belt. Accordingly, the trial Judge held that the first respondent was not contributorily negligent for his injury. Since the appellant did not appeal against this finding despite having included the first respondent as a party in this appeal, we need not discuss this issue further.

As between the Taxi and the Nissan, there was no dispute that the Nissan had the right of way at the junction and that the second respondent (the Taxi driver) should bear greater liability for the accident. The second respondent conceded that he proceeded to make the right turn by simply following the unknown vehicle when it moved. On the other hand, the appellant (the Nissan driver) accepted that he was travelling above the road’s speed limit of 70 kmph. He had seen the unknown vehicle moving to cross the junction. However, he did not think that he needed to slow down when he was near the junction as he was confident that his Nissan would not collide with the unknown vehicle. He did not see the Taxi until it was too late.

The trial Judge considered the video footages, the factual evidence of the parties and the expert evidence led by both defendants. He held that there was want of due care on the part of the Taxi driver and that he failed to keep a proper lookout when making the right turn. Accordingly, the primary responsibility for the collision could not be attributed to the appellant’s speeding (GD at [17]).

The trial Judge concluded that the Nissan was travelling at between 74 and 87 kmph and that its average speed was 82 kmph (GD at [29]). He noted that even the lower speed in this range was above the road’s speed limit. Further, the appellant failed to exercise due care when approaching the junction although he had the right of way. The junction was a large one and traffic was moderately heavy at around 7.30pm that weekday evening.

After considering the relative causative potency and the moral blameworthiness of both drivers, the trial Judge eventually apportioned liability at 65% on the second respondent’s part and 35% on the appellant’s part. He also ordered both drivers to pay the first respondent costs fixed at $95,000, excluding disbursements, for the trial on liability.

The appeal before the Court of Appeal

The appellant appealed against the apportionment of liability. He referred to 13 local cases and four foreign cases decided between 1992 and 2015 which involved accidents between a straight-moving vehicle with the traffic lights in its favour and a vehicle making a discretionary right turn into the path of the first vehicle. The appellant referred to such a situation as the “Discretionary Right Turn Scenario”. He submitted that these cases show that liability against the straight-moving vehicle was assessed consistently at between 0 and 20% in almost 90% of the cases. Two “outlying decisions” apportioned liability at 30% and 40% respectively. The appellant sought to distinguish these two cases on their facts.

The appellant also referred to the Motor Accident Guide (“MAG”) issued by the State Courts and pointed out that it recommends 15% liability against the straight-moving vehicle, consistent with more than 70% of the cases that he had referred to. He further referred to the outcome predictor on the Motor Accident Claims Online (“MACO”) portal launched by the Courts of the Future Task Force and submitted that the predicted outcome of 20% liability against the straight-moving vehicle was also consistent with almost 90% of those cases or 100% if the two “outlying decisions” were not taken into consideration.

While the appellant accepted that each case depended on its own set of facts, his professed reason for this appeal was “to clarify the current judicial thinking” and his “main clarion call is for certainty”. He argued that certainty of the law was important, particularly in the area of motor accident cases. It would prevent proliferation of unnecessary litigation in such cases and help parties to resolve matters reasonably and sensibly. It would also assist insurers to resolve cases expeditiously and economically whenever possible.

The appellant submitted that the trial Judge’s decision was inconsistent with the existing body of case law, the MAG and the outcome predictor on the MACO portal. He contended that “it is essential for the rather established position on liability with respect to the Discretionary Right Turn Scenario to be reaffirmed” and that if the...