Stephanie Tang Swan Leen and others v Tan Su San (the personal representative of the deceased Tan Seng Huat)

• Jurisdiction: Singapore
• Judge: Lee Li Choon
• Judgment Date: 27 August 2018
• Neutral Citation: [2018] SGDC 218
• Court: District Court (Singapore)
• Docket Number: District Court Suit Nos. 137 of 2015, 327 of 2015 and 856 of 2016
• Published date: 04 September 2018
• Year: 2018
• Hearing Date: 27 July 2018,18 December 2017,17 May 2018,22 May 2018,09 May 2018
• Plaintiff Counsel: Dominic Chan, Johnston Lee, Daniel Ng (M/s Characterist LLC)
• Defendant Counsel: Mahendra Prasad Rai, Dean Salleh (M/s Cooma & Rai)
• Subject Matter: Negligence,Motor Accident,Defence of Automation,Stroke,loss of control
• Citation: [2018] SGDC 218

District Judge Lee Li Choon: Background

This case concerns an unfortunate road traffic accident that occurred on 19 September 2014. Briefly, the accident occurred on 19 September 2014 at around 11:10 p.m. The Defendant (“D”) was driving his vehicle bearing registration no. SJB 5257 P down Geylang Road, and had subsequently turned right into a one-way, one-lane street called Geylang Lorong 9. Just as D was turning into Geylang Lorong 9, D’s vehicle mounted the kerb on the left side of Geylang Lorong 9 and his vehicle crashed into a Coffeeshop located at the corner of the junction between Geylang Lorong 9 and Geylang Road (“the First Accident”). The First Accident resulted in injuries for 3 persons – the Plaintiff in DC 137/2015, the Plaintiff’s child (who is the Plaintiff in DC 856/2016) and one Poh Kok Chun (who is the Plaintiff in DC 327/2015) who were all at the coffee shop at the material time. D has since passed away. It is an undisputed fact that the Plaintiff’s back (the Plaintiff in DC137/2015) was facing the road from where D’s vehicle had come from, and so, the Plaintiff could not have seen D’s vehicle approaching when it crashed into her. The Plaintiff immediately lost consciousness and only regained her consciousness a few days after the incident.

After the First Accident, D’s vehicle drove down the one-lane, one-direction Geylang Lorong 9. When D’s vehicle subsequently exited Geylang Lorong 9 and entered into Sims Avenue, it collided into another vehicle bearing registration no. SDK 1199 Z that was travelling along Sims Avenue (“the Second Accident”). The suit (DC 2409/2015) arising from the Second Accident has since been discontinued.

The First Accident gave rise to 3 suits commenced by the 3 persons injured in the First Accident. These suits are the subject of the current proceedings, with DC 137/2015 being the lead suit. On the issue of liability, all 3 Plaintiffs have agreed to be bound by the decision of this court in the lead suit DC 137/2015 for the other two suits (namely, DC 327/2015 and DC 856/2016).

In response to the Plaintiffs’ claims, D has raised the Defence of automatism. D alleges that “[j]ust before he lost control of his motorcar suddenly and unexpectedly, he suffered a sudden onset of stroke and/or left basal ganglia bleed and/or numbness in his body resulting in the loss of control of the car when then resulted in the accident(s). In brief, D’s Defence is that the effect of the stroke was either to render D unconscious or numb [sic] or unable to move his limbs to brake or steer his car to a halt safely or at all, or to control his car.”¹

Issue Before This Court

There is only one legal issue before this Court and that is the pivotal issue of whether D, who suffered a spontaneous stroke that caused him to lose control of his car resulting in the First Accident is liable for negligence in causing the First Accident, i.e., whether the Defence of automatism operates in this case to negate any liability on the part of D.

The Law

It appears that there are two contrary lines of authorities (all English decisions) on the standard of care expected of a defendant who is suffering from a sudden disability that causes him to lose control of his actions and there is no local precedent as yet². I will now briefly set out the two lines of English authorities, this having been comprehensively covered by the Plaintiff Counsel in the Plaintiff’s written submissions.

One line of authority is as set out in the English cases of Roberts and others v Ramsbottom [1980] 1 WLR 823³ (“Roberts”) and Dunnage v Randall and another [2015] EWCA Civ 673 (“Dunnage”)⁴.

In Roberts, the defendant had suffered a cerebral haemorrhage unknown to himself, and had entered and driven his car and subsequently got into an accident. It was found that the defendant’s consciousness was impaired or clouded, but he was unaware throughout that he was unfit to drive. He had some awareness of his surroundings and the traffic conditions and made a series of deliberate and voluntary though inefficient movements with his hands and legs to manipulate the car controls.

Neill J in Roberts then held that a driver will only be able to escape liability if the driver’s actions at the relevant time were wholly beyond his control, and that based on the evidence before the Court in that case, the defendant had retained some form of control (and the defendant’s condition therefore did not amount to automatism) such that the defendant is still liable in law for his driving (see p.832F-G):

“The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retained some control, albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable. His position is the same as a driver who is old or infirm. In my judgment, unless the facts establish what the law recognizes as automatism, the driver cannot avoid liability on the basis that owing to some malfunction of the brain his consciousness was impaired.”

[Emphasis in bold and italics added]

Based on Roberts, in order for the Defence of automatism to apply to negate liability altogether, it is not sufficient to show impairment of consciousness. It must be shown that there was a total loss of control. Roberts was subsequently cited by the English Court of Appeal in Dunnage. In Dunnage, the English Court of Appeal dealt with a claim in negligence by the claimant against the estate of an insured person as well as the insured person’s insurers. The injuries to the claimant occurred when the insured person, who suffered florid paranoid schizophrenia, set himself on fire in the claimant’s house in the presence of the claimant who was, as a result, badly burned.

All 3 honourable justices of the English Court of Appeal held that the insured person was liable in negligence to the claimant. In coming to their decision, the English Court of Appeal grappled with the difficulties in determining the exact / precise threshold at which the Court could safely accept that the defendant’s responsibility has been eliminated such that the defendant ought not to be fixed with the duty of care, which difficulties arise especially because medical experts inevitably qualify the extent to which a person is physically or mentally impaired (using words such as “probably”). In order to avoid such difficulties, the English Court of Appeal held that for the purposes of liability in negligence, unless a medical problem had the effect of completely or entirely eliminating any fault or responsibility for the injury (such as where the defendant had done nothing to cause the claimant’s injury), the objective standard of care (which is that of a reasonable person who did not have the impaired adult’s personal characteristic) is fixed on the defendant such that he remains vulnerable to liability if he does not meet the said standard

See Rafferty LJ’s judgment at [114]): “114 A further area which concerns me is that the experts allowed a small margin at the end of ‘complete elimination’. Once there is introduced any qualification of 100% impairment, as there is for example by use of the adverb ‘probably’, difficulties flow. Where is any line to be drawn? At 99% impairment? At 95% or 90%? What is the lowest percentage to which the court could descend before its findings were affected? Unless a defendant can establish that his condition entirely eliminates responsibility … he remains vulnerable to liability if he does not meet the objective standard of care. It is the entirety of the elimination which drives this conclusion, and once that entirety is eroded or diminished, he is fixed with the standard. The evidence was that [the defendant’s] responsibility came very close to complete elimination, but the experts stopped short of finding that it was complete.

[Emphasis in bold and italics added]

See also Vos LJ’s judgment at [130]-[133] which explains the rationale for requiring a complete loss of control before a defendant could be excused from the normal objective standard of care: “130 … [I]s there some principle that requires the law to excuse from liability in negligence a defendant who fails to meet the normal standard of care partly because of a medical problem. In my judgment, there is and should be no such principle. The courts have consistently and correctly rejected the notion that the standard of care should be adjusted to take account of personal characteristics of the defendant … 131 In my judgment, only defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be excused. It is only defendants in that category that have not actually broken their undoubted duty of care. The actions of a defendant who is merely impaired by medical problems, whether physical or mental cannot escape liability if he causes injury by failing to exercise reasonable care. 132 What then does it mean to say that a medical condition entirely eliminates any fault or responsibility for the injury? It simply means that the defendant himself did nothing to cause the injury … 133 In my judgment, however, at all intermediate stages where the defendant does something himself he risks being liable for failing to meet the standards of the reasonable man. This approach avoids the need for medical witnesses to become engaged with difficult and undefined terms such as volition, will, free choice, consciousness, personal autonomy and the like. It is only if the defendant can properly be said to have done nothing himself to cause the injury that he escapes liability …”

[Emphasis in bold and italics added]

Although Dunnage was decided in the context of a person who suffered a mental problem, the English Court of Appeal said at [131] that the same principles...