Tay Koh Yat Bus Co Ltd v Chua Chong Cher and Others

• Jurisdiction: Singapore
• Judge: Lord Cross of Chelsea
• Judgment Date: 28 March 1972
• Neutral Citation: [1972] SGPC 1
• Docket Number: Appeals Nos 24 and 25 of 1970
• Date: 28 March 1972
• Year: 1972
• Published date: 19 September 2003
• Plaintiff Counsel: J Fox Andrews QC and Michael Hutchison (Linklaters & Paines)
• Citation: [1972] SGPC 1
• Defendant Counsel: Ian Bailieu and Denis Murphy (Lipton & Jefferies)
• Court: Privy Council
• Subject Matter: Whether an appellate court can reverse trial judgeÂ’s findings,Trial judge basing findings on comparative credibility and demeanour of opposing witnesses,Civil Procedure,Appeals,Finding of fact

On 9 March 1966 in River Valley Road, Singapore, there was a road accident in which two buses and a motor-cycle were involved. One bus belonged to the Tay Koh Yat Bus Co, the appellant in these appeals. That company will be called `the Tay company` and the bus will be called `the Tay bus`. The driver of this bus was Mr Ramaswamy. After stopping at a bus stop he was driving the Tay bus down a slight slope along the River Valley Road. On the same road, and initially moving in the same direction as the Tay bus and in front of it, having overtaken it at the bus stop, was the motor-cyclist, Chua Chong Cher, the respondent in these appeals. He will be called the `motor-cyclist`. Coming in the opposite direction and keeping to its proper side of the road was the other bus, which belonged to the Hock Lee Amalgamated Bus Co. That company will be called `the Hock Lee company` and the bus will be called `the Hock Lee bus`. The driver of this bus was Mr Oon Long Kiang.

Two actions were brought in the High Court of Singapore in respect of the accident. In the first action the plaintiff was Mr Oon Long Kiang, the driver of the Hock Lee bus, and the defendants were (1) the motor-cyclist and (2) the Tay company. In the second action the plaintiff was a lady who had been a passenger in the Hock Lee bus, and the defendants were (1) the Hock Lee company (2) the Tay company and (3) the motor-cyclist. It was arranged that there should be a hearing of the second action only, and that the decision in that action should govern the decision in the first action. The arrangement applied also to the appeals in the two actions to the Federal Court of Malaysia and now applies to the present appeals.

It is not now suggested that the driver of the Hock Lee bus was in any way to blame for the accident. The disputed question is whether the accident was due to negligence on the part of the motor-cyclist, as the trial judge held, or to negligence on the part of the driver of the Tay bus, as the Federal Court of Malaysia held. The issue in the appeal is whether the Federal Court was justified in reversing, the decision of the trial judge on a matter of fact, when his finding was based mainly on his acceptance of the evidence of one witness in preference to the evidence of another witness. There is however a good deal of undisputed evidence, which it is convenient to deal with first.

It is common ground that the motor-cyclist slowed down and stopped in the middle of the River Valley Road, intending to turn to his offside into a side road called Leonie Hill Road but having to wait for oncoming traffic to pass. There is a dispute as to whether he remained stationary in that position or started to move towards his nearside in front of the Tay bus. It is clear, for reasons which will be stated, that the Tay bus was travelling on its nearside but swerved abruptly to its offside. Some part of it, not identified but presumably the nearside front corner or some part of the nearside, struck a blow on the back of the motor-cycle, damaging the rim of the back wheel and the nearside portion of the rear number plate. The front of the Tay bus went over the centre of the road on to its offside. The driver started to pull back to his nearside, but there was no time and the Tay bus collided, front to front but at an angle, with the Hock Lee bus.

There was an agreed plan, prepared by the police, showing the positions of the vehicles after the accident, and there were agreed photographs of the vehicles in those positions. There was also a plan, submitted by the motor-cyclist`s counsel and included in the record, showing on squared paper the two buses in their positions after the accident, and this is useful as showing certain distances and the angle of the Tay bus in relation to the direction of the road.

The width of the River Valley Road was 30ft two in and the width of the Tay bus was seven ft two in. In the position of the Tay bus after the accident, the distances of its corners from the nearside kerb were - front nearside 18ft three in, front offside about 24ft six in, rear nearside seven ft two in, rear offside about 13ft five in. The bus was turned to its offside at an angle of about 27[deg ] to the direction of the road. Its front wheels had been turned back towards the nearside. To reach that final position it must have come from a position closer to its nearside, and it could not have been travelling in the middle of the road. It is reasonable to infer that it had been travelling well on its nearside before it swerved abruptly towards its offside. This inference accords with the evidence of the driver of the Hock Lee bus as well as that of the driver of the Tay bus, and there was an express finding of the learned trial judge to the same effect.

The motor-cycle came to rest approximately in line with the middle of the Tay bus. The motor-cycle was turned over on its offside with the wheels towards the Tay bus and the handlebars and seat towards the nearside kerb, and it was about three ft ten in from the nearside kerb. It was facing in the direction from which it and the Tay bus had come. Therefore it had somehow been turned round in the accident and also had moved from the centre of the road towards its nearside.

The questions posed by the undisputed evidence are (1) Why did the driver of the Tay bus, who had been travelling well on his nearside, make his abrupt swerve to the offside at the grave risk of a collision with some oncoming vehicle (which in fact occurred)? (2) How did the motor-cycle come to be where it was after the accident?

Mr Ramaswamy, the driver of the Tay bus, gave evidence. In the course of it he said, as it is recorded in the court notes of evidence:

As I was approaching Leonie Hill Road junction I was involved in traffic accident.

I had just picked up passengers.

There were plenty of vehicles going ahead of me.

I was behind a lorry.

I saw a motor-cycle in centre of the road waiting (stationary) to turn right into Leonie Hill Road. It was 30 or 40 feet from me.

My speed was then between 15 to 20 mph.

I was 3/4 feet from edge of road.

Lorry was in front of me.

After lorry had passed the motor-cyclist the motor-cyclist suddenly swerved left across my path.

Lorry overtook motor-cyclist on left side of motor-cyclist.

When motor-cyclist suddenly swerved to its left it was seven to ten feet of me on a slope. (sic)

When motor-cyclist swerved left I swerved right to avoid a collision. I don`t know if I collided with motor-cyclist.

I swerved violently to right and on seeing vehicles approaching from front I again swerved left. There was a collision with Hock Lee bus in front.

I applied my brakes and then swerved right.

If I had not swerved right I do not know if motor-cyclist would be alive if my bus went over him.

In a later passage he said:

Lorry was about 20 ft in front of me.

I could see road ahead of lorry as well.

Motor-cycle was ten to 20 feet ahead of lorry at that stage. Lorry was smaller than the bus.

It did not impede my vision.

Finally he was questioned by the court and gave answers thus:

Q: You made no mention of lorry in your report AB4?

A: I did. I don`t know English. My Malay is not so good. I first noticed the Hock Lee bus when it was ten to 50 feet from scene of collision - 40 or 50 feet.

Motor-cycle was then stationary in centre of road about ten or 20 feet from me.

The lorry was in front of me about 15 or 20 ft.

Speed of Hock Lee bus when I saw it was ten or 20 or 30 mph. Could be ten or 20 mph

The report AB4 was a report to the police, which was a plaintiff`s exhibit and is in the record and was presumably in evidence. In that report Mr Ramaswamy had said that the motor-cycle went towards the left and he swerved to the right to avoid it.

Mr Ramaswamy`s estimates of speeds and distances certainly look unreliable, but that is a common failing of witnesses in road accident cases, and it would be for the trial judge to decide, having regard to the witness`s demeanour and the other evidence in the case, whether he was an honest witness and whether his evidence on matters other than speeds and distances could be accepted.

Mr Cher, the motor-cyclist, gave evidence...