Thorben Langvad Linneberg v Leong Mei Kuen

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 24 October 2012
• Neutral Citation: [2012] SGCA 61
• Court: Court of Appeal (Singapore)
• Hearing Date: 05 July 2012
• Docket Number: Civil Appeal No 141 of 2011
• Plaintiff Counsel: Ramasamy s/o Karuppan Chettiar and Sarjeet Singh s/o Gummer Singh (Acies Law Corporation)
• Defendant Counsel: Patrick Yeo and Lim Hui Ying (KhattarWong LLP)
• Subject Matter: Tort,Negligence,Motor Accident,Liability
• Published date: 14 November 2012

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

The Appellant was injured in a road traffic accident on 3 June 2009. He had collided with a minibus driven by the Respondent. The Appellant sued the Respondent, claiming damages.

In the court below, the trial judge (“the Judge”) found the Appellant 75% contributorily negligent (see Thorben Langvad Linneberg v Leong Mei Kuen [2012] SGHC 26 (“the GD”)). Dissatisfied with the decision, the Appellant filed the present appeal, arguing that the Respondent had failed to prove any contributory negligence on his (viz, the Appellant’s) part.

After hearing the parties’ arguments, we allowed the appeal, holding that the Respondent was 100% liable for the accident. We now set out the detailed grounds for our decision.

Facts Background to the dispute

In brief, the accident took place on Clemenceau Avenue North in the direction towards Cairnhill Road (“the Road”). Clemenceau Avenue North is 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 is 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 form a T-junction uncontrolled by any traffic light.

On 3 June 2009 at 3.45pm, the Appellant was travelling on his motorcycle along the right lane of the Road. The Respondent, a school minibus driver, had stopped her minibus (“the minibus”) in order to allow a student to alight. She had stopped the minibus on the left lane of the Road, alongside Flat No 50 of Monk’s Hill Apartments. After the student had alighted, the Respondent drove the minibus from the stationary 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 this manoeuvre, the Appellant’s motorcycle collided with the minibus. The Appellant was thrown off the motorcycle and sustained injuries. Other than the Appellant and the Respondent, there were no other witnesses who took the stand in the one day trial.

On 24 November 2011, the Respondent pleaded guilty to the offence of inconsiderate driving under s 65(b) of the Road Traffic Act (Cap 276, 2005 Rev Ed) (“the Act”).

Parties’ cases

The Appellant’s case was that the Respondent had failed to prove that he was contributorily negligent. He contended that the Judge gave undue attention to the issue of credibility, and that the Respondent had failed to prove that he (viz, the Appellant) was travelling at an excessive speed at the material time. He also sought to argue that the Judge misapprehended the legal principles when considering the Appellant’s decision to swerve his motorcycle in a bid to avoid a collision.

The Respondent’s case was as follows: The credibility of the parties was a very relevant consideration in the present case; The Appellant’s evidence before the Judge was conflicted and unclear; The Judge had the opportunity to observe the demeanour of the witnesses and assess, first-hand, the veracity and quality of their evidence, and her judgment on the credibility of the Appellant, based on both the spoken evidence recorded in court as well as his behaviour and performance on the stand, should not be varied by this court; The Appellant’s evidence was contrary to the objective evidence; The Appellant contributed to the accident; and The Appellant had failed to demonstrate that the Judge’s decision was in any way contrary to the fabric of the evidence presented before the Judge, or that the Judge had taken extraneous factors into consideration (thus rendering her exercise of discretion erroneous).

Decision below

As stated above, the Judge held that the Appellant was liable for the accident to the extent of 75%, with the Respondent bearing 25% liability (see the GD at [28]).

The Judge found that the Appellant’s excessive speed and his decision to execute an evasive manoeuvre by overtaking the minibus on the right side were major contributing factors to the collision. The Judge found that the Appellant was “part author for his own plight”, and that the Appellant’s testimony was far from satisfactory. In contrast, the Judge found the Respondent to be a far more candid witness.

We turn now to the issues which arose before this court.

Issues before this court

Three main issues were raised before this court. The first was with regard to the Appellant’s alleged lack of credibility. The second was whether the Appellant was travelling at an excessive speed. The third was whether the Appellant was negligent in taking the evasive manoeuvre that he did.

Issue 1: The Appellant’s alleged lack of credibility

First, we address the nature of appellate intervention in relation to a witness’ credibility. In the Singapore High Court decision of Public Prosecutor v Wang Ziyi Able [2008] 2 SLR (R) 61, the court set out the two situations where an appellate court has access to the same material as the trial judge and so is in as good a position as the trial court to assess the veracity of the witness’ evidence. The two situations are where the assessment of the witness’ credibility is 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”).

Further, in the recent decision of Goh Sin Huat Electrical Pte Ltd v Ho See Jui (trading as Xuanhua Art Gallery) and another [2012] SGCA 32, this court set out its views as to appellate intervention (at [49], [55], but see generally [48]–[55] for a discussion on appellate review of apportionment of liability):

The basis for review of findings of fact in the Singapore context has been restated in Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101 (“Tat Seng”) at [41] where this Court stated as follows: Given that this appeal largely involves the evaluation of the Judge’s finding of facts below, it is apposite that we remind ourselves of an appellate court’s role with respect to the finding of facts made in the course of a trial. The appellate court’s power of review with respect to finding of facts is limited because the trial judge is generally better placed to assess the veracity and credibility of witnesses, especially where oral evidence is concerned (Seah Ting Soon v Indonesian Tractors Co Pte Ltd [2001] 1 SLR(R) 53 at [22]). However, this rule is not immutable. Where it can be established that the trial judge’s assessment is plainly wrong or against the weight of the evidence, the appellate court can and should overturn any such finding (see Alagappa Subramanian v Chidambaram s/o Alagappa [2003] SGCA 20 at [13] and Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR(R) 45 at [34]–[36]). Furthermore, where a particular finding of fact is not based on the veracity or credibility of the witness, but instead, is based on an inference drawn from the facts or the evaluation of primary facts, the appellate court is in as good a position as the trial judge to undertake that exercise (Tan Chin Seng v Raffles Town Club Pte Ltd [2003] 3 SLR(R) 307 at [54] and Ho Soo Fong v Standard Chartered Bank [2007] 2 SLR(R) 181 at [20]). In so doing, the appellate court will evaluate the cogency of the evidence given by the witnesses by testing it against inherent probabilities or against uncontroverted facts (Peh Eng Leng v Pek Eng Leong [1996] 1 SLR(R) 939 at [22]).

Thus, a finding of fact is subject to appellate intervention where it is plainly wrong or unjustified by the totality of the evidence (“findings of fact test”).

...

We reiterate that the principal objective of the appellate process must be to do justice by correcting plainly wrong decisions. This function, a constitutional responsibility of this Court, is a necessary pre-requisite to ensuring that public confidence in the administration of justice is maintained. A proper balance has therefore to be struck by appellate courts between due deference and undue deference in relation to findings of fact (and apportionment) by trial courts. Arid historical distinctions between correctable errors of law and irretrievable errors of fact no longer resonate. Improvements to the record, such as verbatim transcripts that are electronically recorded, now permit closer appellate review of findings of fact by trial courts. The trial judge’s notes are no longer the only reliable record of what has transpired below. With this development, some of the previously exclusive advantages of triers of fact have shrunk.

[emphasis in original; emphasis added in bold italics]

With these legal principles in mind, we now set out why we disagreed with the Judge’s assessment of the Appellant’s credibility.

Was the Appellant’s testimony far from satisfactory?

The Judge decided that much turned on the cogency and credibility of the respective testimonies given by the Appellant and the Respondent, considered in the light of the other evidence presented (see the GD at [12]). The Judge found that the Respondent was a far more forthright and credible witness than the Appellant. The Judge found the Appellant to be an evasive witness who had a tendency to give answers that seemed more like afterthoughts than candid responses. Not surprisingly, the Judge found that his testimony was far from satisfactory.

The lack of details in the police report

The Judge found, first, that the Appellant had ample opportunity to provide a full account of the accident to the police but failed to do so. The lack of details in the police report was contrasted with the detailed affidavit he...