Ngiam Kong Seng and Another v Lim Chiew Hock

• Judge: Chan Sek Keong CJ
• Judgment Date: 29 May 2008
• Neutral Citation: [2008] SGCA 23
• Citation: [2008] SGCA 23
• Defendant Counsel: Quentin Loh SC (Rajah & Tann) and Anthony Wee (United Legal Alliance LLC)
• Published date: 05 June 2008
• Plaintiff Counsel: Cecilia Hendrick and Wee Ai Tin Jayne (Kelvin Chia Partnership)
• Date: 29 May 2008
• Docket Number: Civil Appeal No 38 of 2007
• Court: Court of Appeal (Singapore)
• Subject Matter: Applicable test to determine existence of duty of care,Threshold considerations of recognisable psychiatric illness and factual foreseeability,Whether communication of matters relating to accident sufficient to found duty of care,Tort,Whether type of damage claimed should result in different test from two-stage test set out in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency,Application of two-stage test irrespective of type of damage claimed,Psychiatric harm,Duty of care,Whether tortfeasor owing duty of care not to cause psychiatric harm,Negligence,First stage involving consideration of whether there was sufficient legal proximity with three factors set out by Lord Wilberforce in McLoughlin v O'Brian playing important role,Whether trial judge plainly wrong to have found that accident was not caused by tortfeasor,Application of two-stage test set out in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency,Appeal against finding of fact,Second stage involving consideration of whether there are any public policy factors militating against the court imposing duty of care

29 May 2008

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

Introduction

1 This was an appeal against the decision of the trial judge (“the Judge”), who dismissed the appellants’ claims for damages (see Ngiam Kong Seng v CitiCab Pte Ltd [2007] SGHC 38) (“the GD”)). We dismissed the appeal and now give the reasons for our decision.

2 In Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR 100 (“Spandeck”), this court set out the applicable test in Singapore for ascertaining the existence of a duty of care in cases involving claims for pure economic loss (“cases of pure economic loss”) and cases involving claims for personal injuries and/or physical damage (collectively, “cases of physical damage”). The present appeal raises the issue as to what the applicable principles are for ascertaining whether a duty of care exists vis-à-vis cases involving psychiatric illness or nervous shock (collectively referred to as “psychiatric harm” in these grounds of decision).

3 While the focus of the hearing for the present appeal was on the decision of the Judge as to the question of whether the respondent had negligently caused the first appellant to suffer physical injuries, the second appellant’s claim that the respondent had caused her to suffer clinical depression entailed a consideration of the applicable principles for ascertaining whether a duty of care exists in cases of psychiatric harm.

The facts

4 The first appellant (the first plaintiff in the proceedings below), Ngiam Kong Seng, was the owner and the rider (at the material time) of motorcycle licence plate No AZ 3210 S (“the Motorcycle”). The second appellant (the second plaintiff in the court below), Quek Sai Wah, is the wife of the first appellant. The respondent (the second defendant in the proceedings below), Lim Chiew Hock, was the driver of taxi licence plate No SHA 9997 P (“the Taxi”).

5 The first appellant, while riding the Motorcycle towards Ang Mo Kio, was involved in a traffic accident (“the Accident”), which was allegedly caused by the respondent (who was then driving the Taxi), on 27 January 2004 at about 3.19pm along the Central Expressway. As a result of the Accident, the first appellant sustained severe injuries which rendered him a tetraplegic. The first appellant is now dependent for the rest of his life on a caregiver – the main caregiver being the second appellant – for activities relating to daily living and mobility.

6 At the time of the Accident, the first appellant was 61 years old, and was working for the Port of Singapore Authority as an operations supervisor. He was due to retire a year later. The second appellant was 59 years old at the material time.

7 Both immediately after and during the period following the Accident, the respondent represented himself to be a helpful bystander who had rendered assistance to the first appellant. The second appellant was, accordingly, led to believe that the respondent was a good Samaritan and developed feelings of gratitude towards him. The inquiries by the appellants’ solicitors eventually led to the second appellant being told that the respondent had been involved in the Accident. She subsequently suffered from major depression and suicidal tendencies resulting from, she claimed, having been “betrayed” (see the GD at [12]) by the respondent.

8 The appellants eventually started an action in negligence against the owner of the Taxi, CityCab Pte Ltd (the first defendant in the proceedings below), and the respondent. The claim against CityCab Pte Ltd was withdrawn before the trial in the High Court. The first appellant alleged that at the material time, the Taxi had collided into the rear of the Motorcycle, causing him to be flung backwards and onto the road. It was argued that the collision had been caused by the respondent’s negligence, which was particularised to include, inter alia, driving at an excessive speed, failing to keep a proper lookout, failing to steer a safe and proper course, and failing to maintain a safe distance from the Motorcycle. The second appellant alleged that she had suffered from clinical depression as a result of:

(a) the respondent’s failure to inform her of the severity of the first appellant’s injuries and of his (the respondent’s) involvement in the Accident; and

(b) the respondent’s conduct in causing her to believe that he had been a helpful bystander at the time of the Accident.

9 In his defence, it was argued by the respondent that the Accident had not been caused by a collision between the Taxi and the Motorcycle, but had instead occurred after the Motorcycle had “self-skidded”[note: 1]. The respondent was adamant that the Taxi had not hit the Motorcycle, and argued that even if there had been a collision between the two vehicles, it would have taken place after the Motorcycle had self-skidded. The respondent denied that the Accident had been caused or contributed to by his negligence, and argued that it had been caused or contributed to instead by the negligence of the first appellant in riding the Motorcycle. In so far as the second appellant’s claim was concerned, the respondent argued that if the second appellant had indeed suffered the loss, damage and expense alleged, these would have been caused solely or partly by the negligence of the first appellant. The respondent also argued that the second appellant’s claim should fail as she had not witnessed the Accident; nor had she been of sufficient proximity in time or space to the scene of the Accident such as would result in her alleged psychiatric problems.

10 At the trial, in so far as the appellants’ case was concerned, both appellants testified, along with their eldest son, Ngiam Peng Hong. They also adduced expert testimony from medical practitioners on the mental state of the second appellant. In so far as the respondent’s defence was concerned, the respondent testified, along with an independent witness, his passenger at the material time, Ms Maureen Andrew (“Ms Andrew”), as well as an accident reconstruction expert. The Traffic Police investigating officer who had investigated the case, Staff Sergeant Andy Foo (“Mr Foo”), was also called upon by the respondent to testify as an independent witness. (At the time of the trial, Mr Foo had already resigned from the Singapore Police Force to become an insurance agent.)

The decision below

11 Liability was the only issue which had to be determined in the court below. For the first appellant’s claim, the Judge had to consider whether the respondent, on the facts, was “responsible for the first [appellant’s] condition” (see the GD at [74]). This issue was also described as follows (see the GD at [26]):

What was common ground was that the first plaintiff [ie, the first appellant] lost control of the [M]otorcycle. What was in dispute was why he lost control. Was it because the [T]axi rear-ended the [M]otorcycle as the first plaintiff asserted? Or, as the second defendant [ie, the respondent] was to contend, … was [it] because the [M]otorcycle self-skidded due to the wet and slippery road and not because of any impact with the [T]axi[?]

12 The Judge found the evidence of the first appellant to be inconsistent with regard to, inter alia, which part of the Motorcycle had been hit and how he had fallen off the Motorcycle. The Judge found the respondent’s evidence, in contrast, to be consistent. Moreover, the evidence of the independent witnesses (Ms Andrew and Mr Foo), as well as other evidence including, inter alia, evidence of the absence of damage to the vehicles concerned supported the respondent’s case. The Judge, accordingly, came to the conclusion that the respondent’s version of the events should be accepted and that the first appellant’s claim should therefore be dismissed (see the GD at [75]–[83]).

13 In so far as the second appellant was concerned, the Judge was of the view that the second appellant’s case hinged on the first appellant’s case, and, therefore, since the first appellant’s claim had been dismissed, the second appellant’s claim must, as a consequence, fail in limine (see the GD at [87]). The Judge also held that even if the respondent had been found to be liable to the first appellant, the second appellant’s claim would still have been rejected on the grounds, inter alia, that (see the GD at [87]–[90]):

(a) the claim had no basis in law and was too remote;

(b) the depression suffered by the second appellant had been caused by her inability to cope with her new burden of being the first appellant’s primary caregiver, rather than by the respondent’s acts or omissions; and

(c) the claim had merely been an afterthought.

The first appellant’s case on appeal

14 Before this court, the first appellant argued that the decision of the Judge on the facts – that the respondent was not responsible for the Accident – should be overturned. The law on whether an appellate court should overturn a finding of fact by a trial judge is clear and need not be elaborated upon, save to state that a trial judge’s finding of fact must be plainly wrong before it will be overturned by an appellate court. We rejected the first appellant’s arguments on appeal as there was no basis for finding that the Judge’s decision was plainly wrong.

15 The only witness who firmly testified that the Accident had been caused by the respondent was the first appellant himself. However, there were inconsistencies in his evidence, as correctly pointed out by the Judge. Even if we had disregarded the inconsistencies, more evidence would have been needed to establish the first appellant’s claim on a balance of probabilities as the Motorcycle had (allegedly) been hit in the rear, meaning that the first appellant could not have actually witnessed any collision as he would, in all likelihood, have been looking ahead (thus facing the opposite direction) and not behind at the alleged point of contact between the...