Rashid Osman bin Abdul Razak v Abdul Muhaimin bin Khairuddin

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Woo Bih Li J
• Judgment Date: 27 February 2013
• Neutral Citation: [2013] SGHC 49
• Citation: [2013] SGHC 49
• Hearing Date: 19 September 2012,22 November 2012,19 April 2012,17 April 2012,18 April 2012
• Year: 2013
• Published date: 05 March 2013
• Date: 27 February 2013
• Docket Number: Suit No 79 of 2011
• Subject Matter: Tort,Negligence
• Plaintiff Counsel: Subir Singh Panoo (Sim Mong Teck & Partners)
• Defendant Counsel: Ramesh Appoo (Just Law LLC),Cosmas Gomez (Cosmas & Co)

Woo Bih Li J: Introduction

NTUC Income Insurance Co-Operative Ltd (“the Co-Defendant”) had issued to one Nasiruddin Shaifuddin (“the Insured”) Motorcycle Insurance Policy Number 5027515523 in respect of motorcycle number FX 1426B (“the motorcycle”). On 30 November 2008, the Insured parked the motorcycle at the car park at Block 108, Woodlands Street 31. The following day, on 1 December 2008, the Insured discovered that the motorcycle was missing from the car park and lodged a police report. One Muhammed Afandi bin Yusoff (“Afandi”) was subsequently charged with and convicted of, inter alia, the theft of the motorcycle.

In the meantime, on 16 December 2008, the Defendant, who was acquainted with Afandi, was riding the motorcycle with the Plaintiff as his pillion passenger when the motorcycle skidded. Both the Plaintiff and the Defendant suffered injuries. It transpired that the Defendant did not possess a valid motorcycle licence at the time of the accident, and he was administered a stern warning for the offences of riding without a valid licence and riding without valid insurance coverage.

The Plaintiff commenced this action against the Defendant claiming for injuries, loss and damage suffered by him due to the Defendant’s alleged negligent riding of the motorcycle. The Plaintiff averred that he had no knowledge that the motorcycle was stolen or that the Defendant did not possess a valid motorcycle licence at the material time.¹ The Defendant denied the Plaintiff’s claim and counterclaimed against the Plaintiff for injuries, loss and damage allegedly incurred by him due to the Plaintiff’s negligence. The Defendant pleaded that he lost control of the motorcycle as a result of the negligent action of the Plaintiff while the Plaintiff was riding as a pillion passenger and that the Plaintiff’s negligence caused or contributed to the accident.² The Defendant also pleaded that the Plaintiff persuaded him to ride the motorcycle and rode pillion on the motorcycle even though he was aware that the Defendant did not possess a valid motorcycle licence.³

The Co-Defendant applied to be and was joined to the action on 15 July 2011. The Co-Defendant pleaded that because the Plaintiff was aware that the motorcycle was stolen and that the Defendant did not possess a valid motorcycle licence at the material time, the Plaintiff’s claim was void for illegality. The Co-Defendant’s position was that any enforcement of a judgment in the Plaintiff’s favour would therefore be contrary to public policy. The Co-Defendant also pleaded that because the Plaintiff knew that the Defendant did not possess a valid motorcycle licence, the Plaintiff had voluntarily consented to accept the risk of injury and to waive any claim in respect of any injury suffered by him in the circumstances.

The trial to determine liability took place from 17 to 19 April 2012 and the morning of 19 September 2012, during the course of which six witnesses testified. The Plaintiff’s witnesses were the investigating officer Norazlan bin Abdul Aziz, the Plaintiff and one Nurhidayah bte Hashim (“Hidayah”), who was a friend of the Plaintiff as well as the girlfriend of the Defendant at the material time. The Defendant gave evidence for the Defence. The Insured and Afandi were witnesses for the Co-Defendant. I found the Defendant to be 100% responsible for the accident and granted interlocutory judgment in favour of the Plaintiff, on that basis with damages to be assessed by the Registrar and the usual consequential orders. The Co-Defendant has filed an appeal to the Court of Appeal.

Background

The evidence of the Plaintiff, the Defendant and Hidayah as to how they became acquainted was largely not in dispute. As of the time of the accident in December 2008, the Plaintiff and Hidayah had been close friends for a number of years and the Plaintiff had been staying in Hidayah’s flat for several months because of financial difficulties.⁴ The Plaintiff and Hidayah used to frequent the 7-Eleven outlet at Admiralty Mass Rapid Transit Station, (“Admiralty MRT”), where the Defendant worked, and thereby got to know the Defendant. The Plaintiff had known the Defendant for some six to eight months before the accident,⁵ and he and a group of friends, including Hidayah, would meet up with the Defendant almost daily after work near Admiralty MRT.⁶ A few months after they met, Hidayah and the Defendant started dating.⁷ The Plaintiff was aware that Hidayah and the Defendant were in a relationship, which relationship was confirmed by Hidayah in cross-examination.⁸

The Plaintiff’s evidence was that prior to 16 December 2008, he and his group of friends, including Hidayah, were unaware that the Defendant did not possess a valid motorcycle licence due to the fact that the Defendant would regularly mention riding his father’s motorcycle to school or to run errands.⁹ Hidayah corroborated the Plaintiff’s evidence, except that she said that she learnt otherwise on 13 December 2008. Her evidence was that on 13 December 2008, she met with the Defendant and his group of friends at Admiralty MRT. During that meeting, she found out that the Defendant did not in fact have a valid motorcycle licence due to a chance remark made by one of the Defendant’s friends. I will elaborate on the remark later. However, she claimed that she did not convey this information to the Plaintiff or any of her other friends at the Defendant’s request.¹⁰

The Plaintiff testified that on the night of 15 December 2008, he met the Defendant, Hidayah and his other friends at Admiralty MRT.¹¹ The Plaintiff returned to Hidayah’s flat for a shower, after which he rejoined his friends at the void deck just below Hidayah’s flat at Block 622, Woodlands Ring Road (“Block 622”). When he arrived at the void deck, he saw that Afandi was already there. The Plaintiff testified that he had first seen Afandi from a distance one or two months before. They had been communicating via text messages.¹² According to the Plaintiff, he was meeting Afandi for the first time on 15 December 2008.¹³ The Defendant and his other friends were also meeting Afandi for the first time. The Plaintiff’s evidence was that Afandi had earlier sent him a text message saying that he was bored, and the Plaintiff had replied by telling him to come to Block 622.¹⁴ Upon arriving at the void deck of Block 622, the Plaintiff walked over to introduce himself and the rest of the group to Afandi (whom they referred to as “Andy”). The rest of the group was interested in getting to know Afandi because he had arrived with a motorcycle,¹⁵ (ie, the motorcycle mentioned at [1] above) which he told them he had just bought the week before from his friend.

The Plaintiff’s evidence was that sometime later in the early hours of 16 December 2008, he felt hungry and suggested to the group that they find something to eat. A few in the group suggested that since the Plaintiff was hungry, he should volunteer to go to buy food from some shops at Admiralty MRT. The Plaintiff agreed and the Defendant offered to give him a lift there on the motorcycle,¹⁶ to which Afandi nodded and grunted his consent. The Plaintiff and the Defendant then put on helmets and set off on the motorcycle. According to the Plaintiff, they rode out of the car park onto Woodlands Drive 52 and turned left into Woodlands Ring Road. The Plaintiff’s evidence was that as they approached a bend, the Defendant leaned to the right too early, as a result of which the motorcycle went out of control and collided into the kerb.

The Defendant’s evidence differed from the Plaintiff’s. His evidence was that earlier in the night, Afandi had offered him a ride on the motorcycle. The Defendant and Hidayah had gone up to Hidayah’s flat to fetch a second helmet, after which the couple took the motorcycle on a joyride to Admiralty MRT.¹⁷ Sometime later, after the couple returned to the void deck of Block 622, the Plaintiff persuaded the Defendant to give him a ride to Admiralty MRT to buy food.¹⁸ After the Defendant rode one round at Woodlands Ring Road with the Plaintiff as his pillion passenger, he wanted to stop, but the Plaintiff suggested that they carry on for a second round. At a bend, the Plaintiff failed to follow the flow of the motorcycle, shifting his body in a manner that caused the Defendant to lose control and the motorcycle to skid.¹⁹

The Plaintiff and the Defendant sustained serious injuries in the resulting crash. It subsequently came to light that the man whom they knew as “Andy” was actually Afandi who was subsequently charged with and convicted of the theft of the motorcycle.

The issues

The following questions arose before this court in the determination of the Defendant’s liability: whether the Plaintiff knew that the motorcycle was stolen; whether the Plaintiff knew that the Defendant did not possess a valid motorcycle licence at the material time; if question (a) and/or (b) was answered in the affirmative, whether, upon consideration of the relevant knowledge of the Plaintiff, the defence of ex turpi causa non oritur actio (“ex turpi causa”) and/or volenti non fit injuria applied to deny the Plaintiff the relief sought; and whether the injuries of the Plaintiff were caused by the Defendant’s negligent riding of the motorcycle and if so, whether the Plantiff was contributorily negligent.

These issues will be dealt with in turn.

Whether the Plaintiff knew that the motorcycle was stolen

Mr Appoo, counsel for the Co-Defendant, submitted that the Plaintiff knew that the motorcycle was stolen. He relied on two points.

First, the motorcycle did not have a rear number plate. He submitted that the Plaintiff must have noticed this and must have realised that the motorcycle had been stolen.

Secondly, Mr Appoo relied on the testimony of Afandi. It will be re-called that Afandi was the one who had stolen the motorcycle. He gave evidence at the second...