Thorben Langvad Linneberg v Leong Mei Kuen

JurisdictionSingapore
Judgment Date24 October 2012
Date24 October 2012
Docket NumberCivil Appeal No 141 of 2011
CourtCourt of Appeal (Singapore)
Thorben Langvad Linneberg
Plaintiff
and
Leong Mei Kuen
Defendant

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 141 of 2011

Court of Appeal

Civil Procedure—Appeals—Motorcycle colliding with minibus—Whether appellate court in as good a position as trial court to assess veracity of witness' evidence—Whether appellant's testimony was far from satisfactory

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether appellant travelling at excessive speed—Whether presence of damage here indicated that appellant was travelling at excessive speed—Whether evidence with regard to damage was equivocal

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether appellant travelling at excessive speed—Whether there was sufficient time for appellant to react—Whether collision was virtually inevitable

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether appellant travelling at excessive speed—Whether there was sufficient time for the appellant to react—Whether minibus made turn immediately from stationery position or gradually moved into position to make turn

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether appellant was negligent in taking evasive manoeuvre—Whether motorcyclist swerving to right markedly increased risk of collision

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether appellant was negligent in taking evasive manoeuvre—Whether motorcyclist's actions taken in ‘agony of the moment’

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether appellant was negligent in taking evasive manoeuvre—Whether reasonably prudent person in appellant's position would not have acted as he did in seeking to avoid collision

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether appellant was negligent in taking evasive manoeuvre—Whether trial judge's view was counsel of perfection

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether hard braking by motorcyclist inevitably left brake marks on road

Tort—Negligence—Breach of duty—Motorcycle colliding with minibus—Whether there was need for appellant to slow down—Whether possibility of danger emerging was reasonably apparent

The appellant (‘the Appellant’) was injured in a road traffic accident on 3 June 2009 at 3.45 pm on Clemenceau Avenue North in the direction towards Cairnhill Road (‘the Road’). Clemenceau Avenue North was a dual carriageway with two lanes on each side, with traffic moving in one direction towards Cairnhill Road and on the other towards Newton Circus. It was divided by a continuous white line. Perpendicular to Clemenceau Avenue North and on the side of traffic heading towards Newton Circus is Peck Hay Road. Clemenceau Avenue North and Peck Hay Road formed a T-junction uncontrolled by any traffic light.

The Appellant was travelling on his motorcycle on the right lane of the Road. The respondent (‘the Respondent’), a school minibus driver, had stopped her minibus on the left lane of the Road in order to allow a student to alight. After the student had alighted, the Respondent drove the minibus from the stationery position on the left lane to the right lane of the Road. This movement of the minibus caused the Appellant to swerve his motorcycle in an attempt to perform an evasive manoeuvre in order to avoid a collision with the minibus. Despite the manoeuvre, the Appellant's motorcycle collided with the minibus. The Appellant was thrown off the motorcycle and sustained injuries.

The Appellant subsequently sued the Respondent and claimed damages. The trial judge (‘the Judge’) found the Appellant 75% contributorily negligent.

Held, allowing the appeal and finding the Respondent to be 100% liable for the accident:

(1) The two situations where an appellate court had access to the same material as the trial judge and so was in as good a position as the trial court to assess the veracity of the witness' evidence were where the assessment of the witness' credibility was based on inferences drawn from the internal consistency in the content of the witness' testimony (‘the Category 1 Situation’) or the external consistency between the content of the witness' evidence and the extrinsic evidence (‘the Category 2 Situation’). Improvements to the record, such as verbatim transcripts that were electronically recorded, now permitted closer appellate review of findings of fact by trial courts: at [13] and [14].

(2) It was difficult to see where the Appellant had changed his position. His evidence was consistent in both the Category 1 and Category 2 senses: at [22].

(3) With regard to whether the presence of damage to the motorcycle indicated that the Appellant was travelling at an excessive speed, the evidence with regard to such damage was equivocal. There was a dearth of further relevant evidence that would have allowed the court to better assess the present factual matrix: at [33] and [34].

(4) With regard to whether there was sufficient time for the Appellant to react, Respondent's counsel argued that the Appellant, travelling at 50 km/h, had sufficient time to react even as he saw the minibus turning from 15 m away. From the Speed and Stopping Table in the Highway Code (Cap 276, R 11, 1990 Rev Ed) (‘Speed and Stopping Table’), at 50 km/h, a vehicle would have travelled an additional 9 m simply during the time the driver took to react and apply the brakes. The braking distance (including reaction time) for good brakes on a dry surface was 23 m: at [36].

(5) What was also lacking was evidence as to the distance between where the minibus had stopped, and the turn into Peck Hay Road. Such evidence would have allowed the court to determine whether the minibus made the turn immediately from its stationary position, or whether the minibus had gradually moved into a position to make the turn, which (in turn) would have allowed the court to assess whether the Appellant had sufficient time to avoid the accident: at [39].

(6) The facts demonstrated that the collision was virtually inevitable. Even though the Appellant had seen the minibus moving off from a distance of 15 m away, it was only at a closer distance that he had realised that the minibus was turning into Peck Hay Road. This essentially gave him fewer than 15 m to react: at [40] and [41].

(7) In the circumstances, there was no need for the Appellant to slow down. In the present case, the possibility of the danger emerging was not reasonably apparent. A reasonable motorist under the circumstances was therefore entitled to assume that other motorists would not unexpectedly and blatantly flout traffic rules and seek to traverse two lanes to make a right turn: at [47], [49], [52] and [53].

(8) The Judge appeared to have found that, if there had been hard braking as claimed by the Appellant, there would invariably have been brake marks left on the road. There was no support for such a finding. First, no expert evidence was led on this point. Counsel for the Respondent stated that he believed that fishtailing should have left indications on the road. The duty was on him to point the court to evidence which supported this assertion and none was forthcoming. Second, the Judge described the Appellant's motorcycle as a high performance sports machine with an ‘advanced braking system’. There was some level of ambiguity with regard to this finding. It was unclear as to whether such an advanced braking system was taken to include what is popularly known as ‘Anti-Lock Braking System’ (‘ABS’). No evidence, expert or otherwise, was led on: (a)what features a motorcycle with an ‘advanced braking system’ had; (b)whether the motorcycle was equipped with ABS; and (c)whether the presence of ABS would have played a role in the motorcycle not leaving brake marks along the road despite its brakes being heavily applied: at [58] to [60].

(9) It could not be seriously argued that a reasonably prudent person in the Appellant's position would not have acted as he did in seeking to avoid the collision: at [75].

(10) The Judge's view on how the Appellant should have dealt with the situation was a counsel of perfection: at [77].

(11) The Respondent was responsible for placing the Appellant in a position in which he had to agonise over what to do in the most fleeting of timeframes. Having been placed in such a position, all that was necessary was that the Appellant's conduct should not have been unreasonable, taking the exigencies of the particular situation into account. His choice to brake and swerve to the right could not be said to be unreasonable conduct in the light of the surrounding circumstances. In the dangerous circumstances the Appellant found himself in, his actions to attempt to save his own life were actions which a reasonably prudent man in his position would take. The Appellant's actions were taken in the ‘agony of the moment’. He had acted reasonably in the circumstances and there had been no negligence on his part in swerving to the right: at [103] and [106].

(12) There was no evidence, expert or otherwise, which was led to show that, relative to the two other options (viz, braking hard and swerving to the left), the option of swerving to the right markedly increased the risk of collision. As the Appellant stated, the possibility of hitting the minibus was present in the two other options as well: at [107].

Bywell Castle, The (1879) 4 PD 219 (refd)

Chu Kim Sing v Abdul Razak bin Amin [1999] 6 MLJ 433 (refd)

Crown (‘Adolph Woermann’) , The v ‘Hessa’(1921) 9 Ll L Rep 271, HC (Eng) (refd)

Crown (‘Adolph Woermann’) , The v ‘Hessa’(1922) 10 Ll L Rep 734,CA (Eng) (refd)

Edrick Greene v Ferosa Sookdeo [2009] UKPC 31 (refd)

Fardon v Harcourt-Rivington (1932) 146 LT 391 (refd)

Foo Siang Him v AG [1983-1984] SLR (R) 586; [1984-1985] SLR 434 (refd)

Goh Sin Huat...

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