Tan Lian Chye v Malayan Railway Administration

• Jurisdiction: Singapore
• Judge: A V Winslow J
• Judgment Date: 17 August 1967
• Neutral Citation: [1967] SGHC 15
• Date: 17 August 1967
• Docket Number: Suit No 444 of 1966
• Published date: 19 September 2003
• Defendant Counsel: PJ Mooney (JYP Chua & Co)
• Court: High Court (Singapore)
• Plaintiff Counsel: KC Chan (Braddell Brothers)

In this action the infant plaintiff sues the defendants (by his mother and next friend) for damages for personal injuries suffered by him on 6 December 1960 and alleged to have been caused by the negligence of the defendants or their servants or agents. He claims that he was run over on the railway line near the premises of Archipelago Brewery Ltd, Singapore by a train under the control and management of the driver and the guard employed by the defendants.

The plaintiff, unfortunately, suffered severe injuries to his left leg which was badly crushed and had to be amputated above the knee. Damages have been agreed in the sum of $27,000.

Particulars of the defendants` negligence are set out as follows:

(a) failing to fence up the railway siding;

(b) failing to keep any or proper look out;

(c) failing to observe the presence of children in particular the plaintiff near the train while shunting;

(d) failing to take special care in preventing children in particular the plaintiff from going near the train which is an allurement to children;

(e) failing to stop, slow down or swerve or in any way so to manage or control the train so as to avoid running over the plaintiff.

The defendants admit the accident but deny that it was caused solely by their own negligence or that of their servants or agents. They claim that the accident was caused solely, or alternatively, contributed to by the negligence of the plaintiff.

Particulars of the plaintiff`s negligence are set out as follows:

(a) Coming on to the railway siding without permission;

(b) Ignoring a warning and order to keep away from the train;

(c) Jumping or attempting to jump onto or clinging or attempting to cling to the train after it started to move.

A further line of defence is that the alleged cause of action did not arise within the twelve months next before the date of issue of the writ herein and is barred by the Public Authorities Protection Ordinance 1948 which was extended to Singapore by the Modification of Laws (Government Proceedings & Public Authorities Protection) (Extension and Modification) Order 1965.

I now turn to a consideration of the evidence adduced on both sides and my findings thereon are as follows -

(a) the infant plaintiff, who was, at the time of the accident, eight years old, stated that he was playing marbles with some children under a tree adjoining a block of SIT flats in the vicinity of some railway tracks, used by goods trains for shunting, not very far from the Archipelago Brewery which is situated on the other side of these tracks. These tracks, in the vicinity of the flats, consist of a loop siding nearer the flats and a main siding running more or less parallel to it on the other side of it nearer Alexandra Road. A sketch plan produced by the defendants (exh D2) shows the topography of the scene in question which can also be seen quite clearly in photographs submitted on behalf of the plaintiff (exhs P1 and P4);

(b) the plaintiff said that he aimed his marble at another marble during the course of a game he was playing with the other children and that the marble hit the ground, bounced off it and shot like an arrow eventually landing on the loop siding. He went down to look for it and squatted down on this track with his back to some stationary `coaches` behind which was a stationary engine facing the other way. As he was looking for his marble, he heard a metallic sound and discovered that the goods train was reversing. As he rose to run away, he tripped and fell with his left leg across the line and the train ran over his leg. He shouted and lost consciousness;

(c) he called a witness of about his own age with whom he had been playing marbles that day (PW4) to support his story. The latter, however, was a most unconvincing witness who did not seem to be at all sure about any of his facts. For instance, he claimed that it was his marble which struck the plaintiff`s marble as a result of which the latter rolled down to the track. He moreover said he did not hear any sound from the engine and did not know whether it was on. The plaintiff, on the other hand, had said that the `sound of the engine was on` all the time and that immediately before the accident, he heard a metallic sound. PW4 was also completely confused about the engine which, at one stage, he claimed had detached itself and moved away. Later, he claimed that he never saw it detach itself on the day of the accident. I can place little or no reliance on his evidence;

(d) the plaintiff denied being warned not to `play` around there before. He also said that he had never seen boys hanging on to the handles of doors of wagons and denied that he had ever hung on to any wagon before or on that day. He also denied that the accident took place on the main siding. His witness (PW4), however, claimed that he had never been chased away before because he never went on to the tracks when there were trains there but he agreed that there would have been trouble from the railway people if they had played there when the trains were there. He also admitted that if he had gone to the track when the train was there, they would have been chased away;

(e) the plaintiff also called a shipping clerk (PW5), who had been a resident in the area for some years, as his witness. This witness claimed that he used to cross the tracks from the direction of the flats by means of a foot-path leading to a bus stop in Alexandra Road on the other side of the tracks but he admitted that he only did so when there were no trains there at all, or if they were stationary;

(f) the defence, on the other hand, called the driver of the engine in question (DW1) and its brakesman (DW2) to give evidence of what really occurred that day;

(g) their version, which I accept, was as follows. The engine in question, which was pulling some 18 wagons or so, arrived from the direction of the Singapore Railway station and after passing the Archipelago Brewery, came to a stop on the main siding. Whilst there he saw some boys under the tree shown in exh P1. The engine was then detached from the wagons and moved forward by itself and went past the point, where the main siding and the loop siding meet, as shown on the sketch plan (exh D2) and marked `point No 5` thereon. The engine then reversed down the loop siding until it came to its junction with the main siding again. It then moved forward up the main siding and connected up with the wagons it has previously left behind on the main siding. It was, accordingly, to the rear of the wagons and not in front as it originally had been. It then pushed the wagons to Diethelm`s factory to the right of exh D2 where it picked up a further wagon and started, in the opposite direction, pulling all the wagons along the main siding in the direction of the Singapore Railway station. The engine was then travelling at `walking pace` with a view to stopping at the lower junction of the two sidings nearer the Brewery;

(h) the boys, who had previously been seen under the tree, started coming on to the track, for the second time, on the final journey of the engine and the wagons from the direction of Diethelm`s factory along the main siding towards the Brewery. The guard was walking between the tracks chasing the boys away. On this return journey the accident took place. The driver happened to look back and saw some boys hanging on to the wagons - some to the handles and some to the bars. He also saw one boy on the ground. He stopped the engine after he saw this but it took him about 20 seconds to stop the engine during which time he travelled one wagon`s length. He saw the boy on the ground with his leg across the rail. It had been `cut`. The driver presumed, as he stated later in his report (exh P7), that the boy had fallen off the wagon after hanging on to it;

(i) the driver gave his evidence in a very fair and convincing manner and I see no reason...