Rahmat bin Sanip v Heng Si Kiat (Wang Shijie)

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 26 May 2022
• Neutral Citation: [2022] SGMC 32
• Court: Magistrates' Court (Singapore)
• Docket Number: MC/RA 8/2022, MC/SUM 1289/2022, MC/MC 4244/2020
• Hearing Date: 24 May 2022
• Citation: [2022] SGMC 32
• Year: 2022
• Plaintiff Counsel: Willy Tay Boon Chong (Willy Tay's Chambers)
• Defendant Counsel: Gregory Chong Thian Choy (Loo & Chong Law Corporation)
• Subject Matter: Rules of Court,Order 108, r 5(3),Appointment of joint expert despite objections by other party,Relevant considerations
• Published date: 21 April 2023

District Judge Kow Keng Siong: Introduction

Under O 108 of the Rules of Court, a court may appoint an expert as a joint expert if the parties are unable to agree on the expert to be appointed. Where a party wishes to have an expert engaged by him be appointed as a joint expert – despite the objections by the other party – what principles should a court apply in deciding whether to make the appointment?

This issue arises in the present appeal.

The Suit and the Triable Issue

The Appellant is a defendant in MC/MC 4244/2020 (“the Suit”) which involves a road traffic accident. The case for the Respondent (i.e., the plaintiff in the Suit) is that the accident was caused, or contributed to, by the Appellant’s negligent riding of motorcycle FBK 8552 P which collided into the left side of the Respondent’s car (SLU 5507 U). The Respondent claims that as a result of the collision, (a) his car was damaged and (b) his neck and back were injured.

The Appellant disputes these claims. His case is that – The accident was caused, or contributed to, by the Respondent’s own negligent driving of his car, and The accident could not have caused the Respondent’s alleged injuries because the force from the collision was minimal, if any.¹ (As it will become clear later, this 2nd point will be an important factor in shaping the outcome of this appeal.)

Based on the Appellant’s defence, there is a triable issue as to whether the force from the collision between the Appellant and Respondent’s vehicles could have resulted in the Respondent’s alleged injuries (“Triable Issue”).

The nomination

The Suit is subject to O 108 of the Rules of Court. Under O 108, r 5(3)(a), the Appellant and the Respondent must jointly appoint “one independent expert” if there is a need to deal with any question requiring the evidence of expert witness. If they are unable to agree on the expert to be appointed, then the court has the power to make the appointment: O 108, r 5(3)(b).

To support his defence, the Appellant nominated Mr David Hunter (“Mr Hunter”) to be appointed as a joint expert under O 108, r 5(3)(a). The Respondent objected to this appointment.

On 28 March 2022, the Respondent filed a summons for directions pursuant to O 25, r 1 of the Rules of Court (“SFD”) vide MC/SUM 1289/2022. In the SFD, the Respondent informed the Deputy Registrar that the parties were unable to agree on Mr Hunter’s appointment as a joint expert. The Respondent explained that he had objected to the appointment because Mr Hunter’s CV “[did] not show his experiences as a surveyor in the motor industries in assessing the quantum of damages and/or to ascertain what would be the repair costs”.² (Typographical errors in original text.)

On 6 April 2022, without requiring the parties’ attendance before her, the Deputy Registrar issued her SFD directions. She decided not to appoint Mr Hunter as a joint expert.

The Appellant appealed against that decision and the appeal is now before me.

The Appellant’s case

At the appeal, the Appellant submitted that the Deputy Registrar was wrong in not appointing Mr Hunter as a joint expert. This is because Mr Hunter can provide expert evidence on the Triable Issue.³ The Appellant further submitted that no prejudice will be caused to the Respondent by making the appointment because Mr Hunter had already prepared a report on the Triable Issue (“the Report”),⁴ and the Report had already been disclosed to the Respondent as early as 20 April 2020.⁵ On the other hand, to refuse to make the appointment, according to the Appellant, would be to deny him of his right to prove his defence.⁶

The Respondent’s case

The Respondent urged me to dismiss the appeal. He submitted that appointing Mr Hunter as a joint expert would add to the time and costs to dispose the Suit and would thus be contrary to the spirit of O 108, r 5.⁷ According to the Respondent, there is no dispute between the parties on how the accident had occurred – the only key dispute is whether his injuries were caused by the Appellant’s negligent riding.⁸ The Respondent submitted that Mr Hunter will not be able to provide relevant evidence on this key issue given that (a) he is not medically qualified to comment on the Respondent’s injuries,⁹ (b) he has neither seen the Respondent nor interviewed Dr Tan Wee Lin (“Dr Tan”) (the doctor who had attended to the Respondent a few hours after the accident), and (c) he did not physically inspect the damage to the two vehicles.¹⁰

Applicable principles

To decide on this appeal, I will need to consider under what circumstances it is appropriate for a court to appoint an expert nominated by one party (“proposing party”) as a joint expert when that appointment is objected to by the other party (“opposing party”).

To address this issue, it will be useful to begin by considering the threshold issue of when expert evidence is appropriate in the first place.

Basis for admitting expert evidence

In this regard, the admissibility of expert evidence is governed by s 47 of the Evidence Act 1893 (“Evidence Act”):

Opinions of experts

47.—(1) Subject to subsection (4), when the court is likely to derive assistance from an opinion upon a point of scientific, technical or other specialised knowledge, the opinions of experts upon that point are relevant facts. (2) An expert is a person with such scientific, technical or other specialised knowledge based on training, study or experience. (3) The opinion of an expert shall not be irrelevant merely because the opinion or part thereof relates to a matter of common knowledge. (4) An opinion which is otherwise relevant under subsection (1) shall not be relevant if the court is of the view that it would not be in the interests of justice to treat it as relevant.

[emphasis added]

It is evident from s 47(1) that the threshold for admitting expert evidence is a relatively low one – namely, whether a court “is likely to derive assistance from an opinion upon a point of scientific, technical or other specialised knowledge”. (As an aside, I note that this threshold is lower than the pre-2012 threshold, when the then Evidence Act (Cap 97, 1997 Rev Ed) stipulated that a test of necessity – namely, that “expert opinion is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. If, on the proven facts, a judge can form his own conclusions without help, the opinion of an expert is unnecessary.” (See also Chou Kooi Pang v Public Prosecutor [1998] 3 SLR(R) 205 at [16].)

Under s 47(4), a court is obliged to exclude expert evidence if it is of the view that it “would not be in the interests of justice” to do so. Thus far, there does not appear to have been any significant judicial comment on s 47(4).

On the other hand, there is jurisprudence on a similar provision in s 32(3) of the Evidence Act which deals with the exclusion of hearsay evidence. In the context of s 32(3), courts have held that it “would not be in the interests of justice” to admit a piece of hearsay evidence if there are countervailing factors that outweigh the benefit of having that evidence admitted: Gimpex Ltd v Unity Holdings Business Ltd [2015] 2 SLR 686 at [105] – [109].

In deciding whether the benefits outweigh the detriment of admitting a piece of challenged evidence under s 32(3), courts have considered, among others, the following: What is the value of that evidence? What is the risk of the evidence being unreliable? To what extent would the evidence result in additional costs or delay in the proceedings? Would the evidence distract, confuse or mislead the court and the parties from the real issues in the proceedings? Would admitting the evidence cause prejudice/injustice to a party to the proceeding: see e.g., ANB v ANC [2014] 4 SLR 747 at [50] – [53]; Cheo Yeoh & Associates LLC v AEL [2015] 4 SLR 325 at [91] – [97].

It is my view that the above considerations could similarly apply to s 47(4) in principle.

Joint experts in simplified trials

In the context of the present appeal, it is relevant to note that the relatively low threshold to admitting expert evidence under s 47(1) is subject to O 108, r 5(3). The latter provision states that –

If any question requiring the evidence of an expert witness arises in any case which the Court has directed to be set down for a simplified trial — (a) the parties must jointly appoint one independent expert to give the expert evidence in a written report; and (b) if the parties are unable to agree on the expert to be appointed — (i) the Court shall — (A) make such orders or give such directions, in relation to the appointment of the expert, as the Court deems fit, including an order appointing the expert; and (B) fix the amount of remuneration payable to the expert; and (ii) the parties shall be jointly and severally liable to pay the expert the amount of remuneration fixed by the Court. [emphasis added]

The rationale for restraining the parties in calling expert witnesses under O 108, r 5(3) – by limiting such...