Sim Cheng Soon v BT Engineering Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 22 June 2006
• Neutral Citation: [2006] SGCA 21
• Date: 16 November 2006
• Subject Matter: Whether application should be allowed,Appeals,Civil Procedure,Applicable principles,Application for adducing fresh evidence on appeal in respect of set of photographs,Plaintiff's counsel at trial having opportunity to look at photographs but failing to identify fact that some photographs were missing,Plaintiff's counsel at appeal discovering some photographs in set of photographs adduced at trial left out
• Docket Number: Civil Appeal No 140 of 2005
• Published date: 23 June 2006
• Defendant Counsel: Fan Yuen Chi Edwina and Elizabeth Lee (Kelvin Chia Partnership)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: N Sreenivasan and Collin Choo (Straits Law Practice LLC)

22 June 2006 Judgment reserved.

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

Introduction

1 The present proceedings were straightforward. They constituted an application by the plaintiff for the adducing of fresh evidence for the consideration of this court in his appeal against the decision of the trial judge (“the judge”) in Sim Cheng Soon v BT Engineering Pte Ltd [2006] 1 SLR 697. In particular, the application asked for the following orders:

1 That the Respondents [the defendants] do provide all the negatives of the photographs that were allegedly taken by Ng Sze Kiat [the second defendant’s then safety officer] on 22^nd June 2002;

2 That leave be given for all the photographs allegedly taken by Ng Sze Kiat on 22^nd June 2002 to be admitted into evidence for the purposes of showing the sequence and timings of the photographs;

3 Such consequential orders as may be necessary; and

4 The costs of and occasioned by this application be paid by the Respondents to the Appellant [the plaintiff].

2 By way of brief factual background, the plaintiff was a welder employed by the first defendant (“BT”). BT’s business included the repair and conversion of sea-going vessels. According to the plaintiff, while working at the premises of the second defendant, Keppel Shipyard Limited (“Keppel”) on 22 June 2002, he fell into and through an opening in a working platform that was uncovered and unfenced, and landed on the deck of the vessel. As a result of the accident, he suffered serious injuries, which rendered him a quadriplegic needing full-time care.

3 The plaintiff claimed against both defendants for the injuries he sustained. He based his claim against the defendants on both breach of a duty of care as well as occupiers’ liability. The plaintiff further alleged that the defendants had breached various provisions of the Factories Act (Cap 104, 1998 Rev Ed) (“the Factories Act”) in failing to construct soundly and to properly maintain safe means of access. The defendants filed a common defence denying liability and negligence for the plaintiff’s injuries. They argued that the plaintiff had lost his grip while he was descending a ladder and thus injured himself.

4 The judge held in favour of the defendants. She found the evidence tendered by the plaintiff to be unsatisfactory. In particular, she found him to have been vague and evasive in his account of what had happened. She also found that there had been a discrepancy between this account and his earlier version of events in his solicitors’ letter to the defendants. The judge found that, on a balance of probabilities, the position in which the plaintiff fell was more consistent with the defendants’ version that he (the plaintiff) must have fallen off the ladder than with the plaintiff’s version (at [2] above), which was that he had fallen into an uncovered opening. She further held that, in any event, even if the plaintiff’s version of events were accepted, the defendants would not be liable as they were not in breach of their statutory duties under ss 33(2) and 33(3) of the Factories Act inasmuch as they had provided the plaintiff a safe means of access to as well as a safe place of employment on board the vessel concerned. The judge further held that there had, in the circumstances, been no breach by the defendants of their duty owed under the common law.

5 There was, however, one other issue – which constitutes the central focus of the present application. The then counsel for the plaintiff had in fact argued against the admission of photographs taken of the scene of the accident on the grounds that they were not contemporaneous with the accident and that the photographer (the then safety officer of Keppel) was unavailable to testify as to their veracity. The judge rejected these arguments, holding that there had been no evidence of a time lag and that, even if there had in fact been a time lag, it was not so long as to enable any scaffolding around the vessel to be altered or removed. She further held that as the photographer had since left the employment of Keppel and was working overseas, an adverse inference ought not to be drawn from his absence in testifying at the trial.

6 In the present proceedings, counsel for the plaintiff, Mr N Sreenivasan, applied for fresh evidence to be adduced on appeal. Such evidence, as mentioned above, took the form of negatives and photographs which he alleged had not been produced at the trial itself and which could have had a significant impact on the final decision rendered by the judge. Mr Sreenivasan argued that he and his colleague, Mr Collin Choo, (both of whom had not been the original counsel at the trial) had (principally through his colleague) only just discovered the missing photographs after examining the back of the photographs that were in fact adduced as evidence at the trial itself. In this application, Mr Sreenivasan was also seeking discovery of the negatives after counsel for the defendants had sent the same set of photographs in response to a request by counsel for the plaintiff for the negatives so that they could develop the photographs for the purposes of the pending appeal, a response that obviously did not find favour with counsel for the plaintiff and which resulted in the present application. Mr Sreenivasan pointed out that the back of these photographs contained numbers showing the time sequence in which they were taken and that there had been a break in the sequence – hence, the inference that there had been missing photographs.

The applicable legal principles

7 It was common ground between counsel for both parties – and rightly in our view – that no fresh evidence may be adduced except where the three conditions laid down in the leading English Court of Appeal decision of Ladd v Marshall [1954] 1 WLR 1489 (“Ladd v Marshall”) had been satisfied (see also s 37(4) of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) and O 57 r 13(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”)). These were set out by Denning LJ (as he then was), as follows (at 1491):

To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use in the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although...