Siva A/L Ramajayam v Cui Xin and another

• Jurisdiction: Singapore
• Judge: Samuel Wee
• Judgment Date: 12 July 2023
• Neutral Citation: [2023] SGDC 135
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2340 of 2021
• Hearing Date: 17 April 2023,19 June 2023
• Citation: [2023] SGDC 135
• Year: 2023
• Plaintiff Counsel: Ganesh S Ramanathan (Karuppan Chettiar & Partners)
• Defendant Counsel: Tay Boon Chong Willy (Willy Tay's Chambers)
• Subject Matter: Tort,Negligence,Breach of duty,Motorcycle colliding with van,Whether the van driver failed to drive to a standard expected of a reasonable person in the circumstances,Defence,Whether an unknown vehicle caused the van driver to take evasive action,Whether the van driver's actions taken in the "agony of the moment"
• Published date: 05 September 2023

District Judge Samuel Wee: Introduction

The First Defendant was driving a van along the Kranji Expressway (“KJE”) when the van suddenly switched lanes, spun, and came to a halt facing oncoming traffic. The Plaintiff motorcyclist collided with the stationary van and suffered injuries (“Accident”).¹

The Second Defendant company Tian Xin Su Bao Dian is the registered owner of the van, and was the First Defendant’s employer at the time of the Accident.² It is not disputed that the First Defendant was authorised by the Second Defendant to drive the van.³

The Plaintiff brought this claim against the Defendants for damages arising from the Accident.⁴ The Defendants’ primary defence is that an unknown and unidentified vehicle (“Unknown Vehicle”) abruptly cut into the van’s lane, which necessitated the First Defendant’s reaction in the “agony of the moment”.⁵ In the alternative, the Defendants argue that if the principle of the “agony of the moment” does not apply, the responsibility for the Accident should be apportioned between the First Defendant and the unidentified driver of the Unknown Vehicle (“Alternative Apportionment Argument”).⁶

Issues to be determined

This stage of the trial involved the determination of three preliminary issues pursuant to O 33 r 2 of the Rules of Court (2014 Rev Ed):⁷ Whether the Defendants owed a duty of care to the Plaintiff (“Duty Issue”). Whether the Defendants acted in breach of that duty (“Breach Issue”). Whether the facts and law support a finding of an “agony of the moment” (“Agony Query”).

The parties’ agreed for the three preliminary issues to be determined in the wake of the High Court decision in Salmizan Bin Abdullah v Crapper, Ian Anthony [2023] SGHC 75 (“Salmizan”). In Salmizan, the High Court determined that a bifurcated trial along liability and the assessment of damages would require the plaintiff to prove causation for all of the damage being claimed at the liability stage. The present trial was set down and fixed prior to the release of the decision of Salmizan, and was initially bifurcated along the lines of liability and the assessment of damages. The parties appear to have done this with the expectation that the issue of causation would be addressed at the assessment of damages stage – this is apparent from the lack of evidence on causation in the affidavits of evidence in chief (“AEIC”). However, because of the findings in Salmizan, the parties agreed to have the initial stage of trial deal with the three preliminary issues instead of the original bifurcation along liability and the assessment of damages.

For reasons that will be apparent below, the Agony Query has a large bearing on the Breach Issue. I will therefore deal with the Duty Issue, followed by the Agony Query before making my findings on the Breach Issue. The Defendants’ Alternative Apportionment Argument will also be addressed as part of the Breach Issue.

The Duty Issue Details of the Accident

The Accident occurred on 17 November 2018 around 7.30am.⁸ The First Defendant’s van was initially travelling along lane 2 of the KJE, when it suddenly switched lanes to lane 1, spun and came to a halt facing oncoming traffic.⁹ As a result, the Plaintiff’s motorcycle, which was travelling in lane 1, collided with the stationary van, and the Plaintiff was flung off the motorcycle.¹⁰ The Plaintiff was subsequently conveyed to the hospital.¹¹ These facts were not in dispute.

The evidence before the Court shows that at the time of the Accident: It was raining heavily.¹² Visibility was poor. The Plaintiff testified that visibility was not good and that he could not see clearly “at a distance of about 4 to 5 vehicles”;¹³ and the First Defendant testified that he could only see around 10m to 15m ahead of him.¹⁴ There was little traffic on the KJE. The Plaintiff testified that there was light traffic volume on lane 1;¹⁵ and the First Defendant testified that there were no other vehicles ahead of him in lane 2.¹⁶

The First Defendant owed a duty of care to the Plaintiff

The Duty Issue is the first of four elements that need to be established to prove negligence. The other three elements being: the Breach Issue; whether there was a causal connection between the Defendants’ breach and the Plaintiff’s damage; and whether that particular kind of damage suffered by the Plaintiff is not so unforeseeable as to be too remote (see CXN (a minor suing by her father and litigation representative) v CXO and another [2022] SGHC 311 at [12]).

In general, a motorist owes a duty of care to other road users to keep a proper look-out and to drive with reasonable care with due regard to the specific traffic circumstances (Goh Yang Hui (committee of the person and estate of Chua Jie Liang Samuel, mentally disordered) v Soon Teck Soon [2013] SGHC 67 at [9]). In this regard, the Defendants have rightfully accepted that the First Defendant owed a duty of care to other road users, including the Plaintiff.¹⁷

I therefore find that the First Defendant owed a duty of care to the Plaintiff.

The Agony Query The law

The Defendants referred to the Court of Appeal’s decision in Thorben Langvad Linneberg v Leong Mei Kuen [2013] 1 SLR 207 (“Thorben”) in support of their defence based on the principle of the “agony of the moment”.¹⁸

The principle of the “agony of the moment” relates to the standard of care that would be applicable when reacting to an emergency – “All that is necessary is that the conduct should not have been unreasonable, taking the exigencies of the particular situation into account” (Thorben at [79] and [103]). In other words, the principle calibrates the standard of care that would be expected in the circumstances, and dovetails into the analysis under the Breach Issue (Greenway Environmental Waste Management Pte. Ltd. v Cramoil Singapore Pte Ltd [2021] SGHC 203 at [203]).

From the Court of Appeal’s detailed review of the law in Thorben, it is also apparent that a person’s conduct in the face of the emergency should be judged from the perspective of whether the conduct was not unreasonable in those circumstances (in which perfect foresight and presence of mind are not required); and not from the standpoint of what would have been reasonable in the light of hindsight and a calmer atmosphere conducive to a nicer evaluation of the alternatives.

Further, the principle would not avail to a defendant who was responsible for placing himself in a position where he had to agonise what to do (See Soon Soon v Goh Yong Kwang [1992] 1 SLR(R) 535 at [20]).

The principle of the “agony of the moment” appears to have some similarities with the defence of an inevitable accident. To establish the defence of an inevitable accident, the defendant must show that he could not, by exercising ordinary care, caution and skill, have prevented the accident (Loh Luan Choo Betsy (alias Loh Baby) (administratrix of the estate of Lim Him Long) and others v Foo Wah Jek [2005] 1 SLR(R) 64 at [28]). The analysis would require the particulars of negligence to be considered, as “If the defendant was negligent, then the accident could not have been inevitable. If … the accident was inevitable, then the defendant cannot be considered to have been negligent”. The similarities between the principle of the “agony of the moment” and the defence of an inevitable accident may explain why counsel for the Plaintiff informed me during the Judge Pre-Trial Conference on 10 April 2023 (“JPTC”) that he had the impression that the Defendants were relying on the defence of an inevitable accident. Nevertheless, counsel for the Defendants later clarified that the Defendants were relying on the principle of the “agony of the moment” and not the defence of an inevitable accident.

The ambit of the Defendants’ reliance on the principle of the “agony of the moment”

The Defendants have raised the existence of the Unknown Vehicle and its actions as its primary defence to the Plaintiff’s claim. Pursuant to section 105 of the Evidence Act 1893 (2020 Rev Ed), the burden of proof lies on the Defendants.

According to the First Defendant, the Unknown Vehicle abruptly cut into the van’s lane, which necessitated the First Defendant’s reaction in the “agony of the moment”.¹⁹ Details of the alleged events based on the First Defendant’s personal testimony is as follows: There were 4 lanes on the KJE. The First Defendant was driving on lane 2.²⁰ There were no other vehicles ahead of the First Defendant in lane 2.²¹ It was raining heavily at the time, and the First Defendant’s visibility was limited²² – he was “paying attention to the front” and “not paying attention to the side”.²³ Whilst driving along lane 2, he did not see the Plaintiff’s motorcycle in lane 1,²⁴ and was unsure whether he saw other vehicles on lane 1.²⁵ At some point, the Unknown Vehicle cut into his lane around 6m ahead of him²⁶ and continued driving forward after it cut into his lane.²⁷ The Unknown Vehicle did not come to a stop after cutting into the First Defendant’s lane.²⁸ He was driving a speed of around 70km/h²⁹ when this happened. In reaction, the First Defendant stepped on his brakes to such an extent that the van suddenly cut into lane 1, spun, and came to a halt facing oncoming traffic.³⁰ The Plaintiff’s motorcycle collided into the stationary van, and the Plaintiff was flung off the motorcycle.³¹

The First Defendant’s personal testimony is the only evidence on the Unknown Vehicle. There is no evidence of the Plaintiff seeing the Unknown Vehicle; and there were unfortunately no video recordings or other witnesses to shed light on the event.

At this juncture, it is apposite to deal with the Plaintiff’s argument that the Defendants should be precluded from relying on the principle of the “agony of the moment” on the basis that it was not pleaded.³² I do not agree with the Plaintiff’s argument and find that the Defendants are...