Ong Bee Nah v Won Siew Wan (Yong Tian Choy, Third Party)

• Jurisdiction: Singapore
• Judgment Date: 16 March 2005
• Date: 16 March 2005
• Docket Number: Suit No 278 of 2004
• Court: High Court (Singapore)

Ong Bee Nah

Plaintiff

and

Won Siew Wan (Yong Tian Choy, third party)

Defendant

[2005] SGHC 52

Andrew Phang Boon Leong JC

Suit No 278 of 2004

High Court

Evidence–Admissibility of evidence–Whether evidence of defendant's criminal conviction for driving without due care or reasonable consideration admissible–Section 45A Evidence Act (Cap 97,1997 Rev Ed)–Evidence–Proof of evidence–Admissions–Onus of proof–Whether defendant's admissions contained in plea of guilt taken in criminal proceedings constituting conclusive evidence in civil proceedings–Whether onus of proof shifting to defendant to prove acts in question not committed by her–Section 45A Evidence Act (Cap 97,1997 Rev Ed)–Evidence–Weight of evidence–Whether evidence of defendant's criminal conviction for driving without due care or reasonable contradicting or undermining defendant's civil case–Section 45A Evidence Act (Cap 97,1997 Rev Ed)–Evidence–Witnesses–Credibility–Whether inability of witness to recall isolated particulars diminishing overall weight of testimony–Whether driver's testimony and passenger's testimony corroborating each other–Whether corroborative testimonies of husband and wife biased–Tort–Negligence–Contributory negligence–Driver approaching traffic junction with no stop sign and where traffic lights in his favour–Whether driver under duty to slow down automatically or to sound horn or flash headlights of vehicle–Whether driver contributorily negligent for having car radio on and having conversation with passenger at time of accident

The plaintiff was travelling in a vehicle driven by the third party along the extreme left lane of a road. The plaintiff, the wife of the third party, was the front-seat passenger. The third party's vehicle collided with the defendant's vehicle at a junction. The third party had been driving straight along the road whilst the defendant was in the process of making a right turn. The weather was clear and traffic flow was light at the material time. Both the plaintiff and defendant sustained physical injuries and both vehicles were damaged badly as a result of the accident.

The third party and defendant disputed liability for the accident. It was, however, undisputed that the plaintiff was not contributorily negligent. The third party admitted that the car radio had been turned on and that he had been conversing with his wife at the material time. The defendant seized upon this admission to argue that the third party had been distracted from his driving in general, and from keeping a lookout for the defendant's car in particular. The defendant also made the argument that the third party was under a general duty to slow down when approaching a traffic junction even if the traffic lights were in his favour. The defendant also argued that as husband and wife, the testimonies of the third party and the plaintiff would have been biased. In addition, the defendant claimed that the right of way had been hers and that it was the third party who had beat the traffic lights. The defendant argued that when she executed the right turn, the green arrow signal of the traffic light had been in her favour.

However, the defendant had also previously pleaded guilty in separate criminal proceedings, in relation to the same accident, to a charge of driving without due care or consideration under s 65 of the Road Traffic Act (Cap 276, 1997 Rev Ed). In those proceedings, the defendant had admitted that she made the right turn even though the green arrow was not displayed. Therefore, in addition to the parties' dispute over liability for the accident, the question also arose as to the admissibility and weight to be given to such evidence in relation to the defendant's criminal conviction.

Held, granting the plaintiff's claim and dismissing the defendant's action against the third party:

(1) The plaintiff was a credible witness. Her inability to recall isolated particulars related to minutiae which one would not reasonably expect of a passenger and did nothing to diminish the overall weight of her evidence. The fact that she did not attempt to modify and/or embellish her answers buttressed the finding that she had been a witness of truth. Indeed, a “perfect” witness might have, ironically, merited an even keener assessment of his or her testimony by the court, because a reliable and truthful witness would typically, albeit not invariably, exhibit lapses from time to time, although these would not usually be major in nature. Therefore, the plaintiff's evidence was useful insofar as it corroborated that of the third party's, especially with regard to the general speed and position of the third party's vehicle when she noticed that the traffic light had been green in the third party's favour: at [15] and [20].

(2) The third party was a credible witness, being a cautious driver who persisted in driving in the extreme left lane even though the traffic flow had been light. He appeared to be a driver who was not given to taking unnecessary risks on the road, and had in fact jammed on the brakes when he saw the defendant's car planning to turn. In this regard, the distance between the stop line at the junction and the defendant's car was so close that even if the third party had applied the brakes at that point in time, this would not have sufficed to prevent the accident that ensued: at [22], [24] and [28].

(3) The third party's admission in respect of the radio and his conversation with the plaintiff had to be examined in context. In the real world, it was commonly the case that the car radio was on, often as background entertainment. It was also commonly the case that the driver and passenger (s) would talk to each other in an informal fashion. This was part of common human interaction. All this did not necessarily mean that the driver was thereby derelict in the due care and attention he or she had to give insofar as his or her responsibilities qua driver were concerned. There were no exceptional circumstances which would lead to the conclusion that the third party had in fact been distracted by either the car radio and/or by what appeared to be normal and casual conversation with his wife, the plaintiff: at [32] to [38].

(4) Despite the defendant's argument that the third party and the plaintiff would be biased because they were husband and wife who had a common interest in the outcome of the present case, this was a situation which they did not engineer or manipulate. No reasonable person would wish to be involved in an accident. What was crucial was whether or not they were reliable witnesses who attempted their level best to tell the truth. On this score, they had passed with flying colours: at [38].

(5) Evidence of the defendant's criminal conviction for driving without due care or reasonable consideration was admissible under s 45A of the Evidence Act (Cap 97, 1997 Rev Ed): at [42].

(6) The admissibility of the evidence in relation to the defendant's conviction was not conclusive in and of itself. Nevertheless, the defendant's conviction, and in particular, the Charge and the Statement of Facts, constituted an extremely significant piece of evidence that directly contradicted as well as undermined the very basis of the defendant's case. Thus, the onus of proof was on the defendant to prove,inter alia, that she had not committed the acts and did not possess the state of mind, if any, which at law constituted the offence she had been charged with and had pleaded guilty to: at [42], [55] to [57].

(7) With regard to the precise weight to be given to the defendant's criminal conviction, a holistic approach ought to be adopted. In the practical sphere of application, in addition to shifting the burden of proof, the conviction would almost certainly figure in the court's mind in at least a minimally substantive way. However, to the extent that such evidence would not be conclusive in and of itself, the court could, and had to, take into account evidence to the contrary that might prevail at the end of the day. This approach reflected the realism and common sense that were necessary in aiding the court in arriving at a result that must be closely linked to the specific facts and circumstances in question: at [59] and [62].

(8) Section 45A (1) of the Evidence Act made it clear that evidence of a conviction was still admissible, notwithstanding the fact that the accused had pleaded guilty instead of going through the entire process of a criminal trial. It would be open, as it was to the defendant in the present case, to prove why she had pleaded guilty to the offence. Despite the defendant's insistence that she had been “compelled” to plead guilty, the defendant could not successfully demonstrate that she had indeed been devoid of choice when pleading guilty. Indeed, she had been legally represented, was a businesswoman not unschooled in the ways of the world, and had more than ample opportunity to explain why she had pleaded guilty. The witnesses' credibility was crucial to the outcome of this case, and the defendant had been an evasive and unreliable witness. It was therefore clear that the defendant would be wholly liable for the accident which occurred: at [65] to [68], [78], [90] and [91].

(9) There was no general duty on a driver to slow down automatically, or to sound the horn or flash the headlights of his vehicle when approaching a traffic junction if there was no stop sign or where the traffic lights were in his or her favour. To impose such a blanket rule would be most impractical and inefficient where there was otherwise no reasonable apprehension of danger. People had to guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities. In the third party's situation, there was no reasonable probability of any danger occurring such that the third party should have acted to guard against it by, inter alia,slowing down his vehicle. Slowing down...