Ting Jun Heng v Yap Kok Hua and another

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 25 February 2021
• Neutral Citation: [2021] SGHC 44
• Court: High Court (Singapore)
• Docket Number: Suit No 307 of 2019
• Year: 2021
• Published date: 03 March 2021
• Hearing Date: 19 June 2020,02 October 2020,18 June 2020,16 June 2020,17 June 2020
• Plaintiff Counsel: Ramasamy s/o Karuppan Chettiar (Central Chambers Law Corporation)
• Defendant Counsel: Teo Weng Kie, Shahira Binte Mohd Anuar (Tan Kok Quan Partnership),Wee Anthony and Fendrick Koh (United Legal Alliance LLC)
• Subject Matter: Tort,Negligence,Contributory negligence,Damages,Computation
• Citation: [2021] SGHC 44

Aedit Abdullah J: Introduction

The second defendant in this case has appealed against my decision in the liability phase of the proceedings, where I found that the second defendant was 35% liable for the harm caused to the plaintiff.

The plaintiff was a passenger, with others, aboard a taxi driven by the first defendant. While the first defendant was executing a right turn at a junction, the vehicle driven by the second defendant, who had priority as the lights were in his favour, collided with the taxi, causing injury to the plaintiff and some other passengers, and unfortunately, the death of one of them.

Brief remarks were conveyed earlier. These are my full grounds.

The background

In the evening of 19 April 2018, the plaintiff, together with three fellow passengers, took a taxi driven by the first defendant, from Clementi Mall to the National University of Singapore (“NUS”).¹ The taxi stopped at the junction between Commonwealth Avenue West and Clementi Road to turn right onto Clementi Road in the direction of the Ayer Rajah Expressway.² A discretionary right turn could be made at the junction at the material time.³

The taxi was in one of two right-turning lanes at the junction,⁴ before moving into its respective turning pocket.⁵ When the vehicle to the taxi’s left (“Unknown Vehicle”) moved to execute the discretionary right turn, the first defendant also chose to make the turn.⁶ Tragically, the first defendant’s taxi was hit by the second defendant’s vehicle,⁷ which was going straight through the junction above the speed limit of 70 km/h.⁸ The traffic lights were in the second defendant’s favour,⁹ and he had seen the Unknown Vehicle making the turn,¹⁰ but apparently did not see the taxi next to that Unknown Vehicle until it was too late.¹¹

One of the passengers in the first defendant’s taxi died.¹² The plaintiff and two other passengers were injured.¹³ The first defendant was charged with a number of offences,¹⁴ including a charge under Rule 5 of the Road Traffic (Motor Vehicles, Wearing of Seat Belts) Rules 2011 (S 688/2011) for failing to ensure that his rear seat passengers were belted up (“Seat Belt Offence”).¹⁵ He pleaded guilty to two of the charges, with other charges, including the Seat Belt Offence, taken into consideration for sentencing.¹⁶ The second defendant’s criminal matters were still ongoing at the time of the trial before me.

The plaintiff claimed damages against the first and second defendants for negligence in the driving of their vehicles.¹⁷ The trial before me was on liability only, with the precise quantum of damages to be determined subsequently.

At trial, reliance was placed on the testimony of the various witnesses, but particularly also on video evidence which came from various sources. The primary dispute was on the care which had to be exercised by the second defendant, who was the driver going straight. It was not disputed by the first defendant that he had been negligent in executing the turn.¹⁸ The key issue was the apportionment of liability as between him and the second defendant, and a secondary issue was whether the plaintiff had indeed used his seatbelt.

The parties’ cases Summary of the plaintiff’s case

The plaintiff argued that in respect of the apportionment between the defendants, the second defendant bore some substantial responsibility, albeit to a lesser extent than the first defendant, as he did not slow down when he approached the junction, and failed to keep a proper lookout.¹⁹ The focus of the plaintiff’s arguments was on refuting any contributory negligence; in particular, it was argued that it had not been proven that the plaintiff was not wearing a seatbelt when the accident occurred.²⁰

Summary of the first defendant’s case

Broadly, the first defendant’s counsel argued that the second defendant was proceeding at an exceedingly high speed in the circumstances.²¹ Between the two defendants, it was argued by the first defendant that the apportionment, leaving aside the plaintiff’s contributory negligence, would be 55 to 60% on the first defendant, and 40 to 45% on the second defendant.²²

Summary of the second defendant’s case

On the other hand, the second defendant argued that after taking into account contributory negligence on the part of the plaintiff (if any), the apportionment should be 85% on the first defendant and 15% on the second defendant.²³ Even though he was speeding, the first defendant was much more blameworthy because the latter blindly followed the Unknown Vehicle in making the right turn,²⁴ thereby causing an unavoidable collision between the first and second defendants’ vehicles.²⁵

The two defendants both argued that there was contributory negligence by the plaintiff as he had failed to wear his seatbelt.²⁶

The Decision

There was no controversy that the primary liability lay with the defendants.²⁷ There was, I found, no contributory negligence on the part of the plaintiff, as on what was before me, the plaintiff had worn his seatbelt.

Between the first and second defendant, I found, weighing their respective actions and omissions, that the first defendant bore the greater part of responsibility, at 65% liability, and the second defendant at 35%.

Analysis

The primary issues were: the respective liabilities of the two defendants, considering in particular the experts’ opinions concerning the speed of the second defendant’s vehicle up to and at the point of collision; and whether there was contributory negligence by the plaintiff in not wearing his seatbelt.

The first defendant’s liability

A greater degree of responsibility certainly lay on the first defendant, which was not disputed by his counsel.²⁸ The first defendant was executing a discretionary right turn,²⁹ with the traffic lights in favour of oncoming traffic.³⁰ Priority lay with those vehicles going straight. Accordingly, it was incumbent upon the first defendant to keep a proper lookout, and exercise prudent judgment in executing the turn. If there was any doubt about whether it was safe to turn, the first defendant should have either waited for oncoming traffic to clear, or waited for it to stop and the right turn green arrow traffic lights to come on. He, however, failed to do so. He simply followed the Unknown Vehicle next to him,³¹ which turned, but fortunately did not collide with any oncoming traffic.

The second defendant referred to the first defendant’s changing position as to what the first defendant allegedly saw and did at the junction.³² It is sufficient to note at this point that the inference to be drawn from the video evidence showing the movement of the relevant vehicles is that there was want of due care on the part of the first defendant, and that the first defendant failed to keep a proper lookout. The primary responsibility for the collision could not be laid at the door of the second defendant’s speeding.

The second defendant’s liability

The level of responsibility to be ascribed to the second defendant was consequent on, primarily, the degree to which he exercised a proper lookout, as well as the speed at which he was travelling. In respect of the latter, while the two experts agreed that the second defendant was speeding,³³ and it was not disputed by the second defendant himself that he had been travelling over the speed limit,³⁴ a finding should nonetheless be made by the Court.

The speed at which the second defendant was travelling

In determining the second defendant’s speed up to and at the point of collision, I considered the views of the two experts. I accept that each of the experts was well-qualified to testify in respect of the collision between the vehicles. While the second defendant took issue with the expertise of the first defendant’s expert,³⁵ I found, having examined his formal qualifications and experience, that he was qualified within the meaning of Section 47(2) of the Evidence Act (Cap 97, 1997 Rev Ed) (“Evidence Act”) to give an expert opinion.

The first defendant’s arguments

The first defendant’s expert witness gave his opinion that the second defendant was driving at 88 to 93 km/h,³⁶ in excess of the speed limit.³⁷ This was derived from momentum exchange calculations, which the first defendant argued was to be preferred to an analysis of the video footages.³⁸ The videos’ low frame rate, poor contrast and fish-eye effect, coupled with how small the second defendant’s vehicle seemed at some parts of the video,³⁹ made it difficult to assess the precise time at which the impact occurred,⁴⁰ thereby compromising the accuracy of speed calculations that relied on video analyses.⁴¹

The second defendant’s arguments

The second defendant’s expert analysed video footage from one source to derive the speed of the second defendant’s vehicle, which in his opinion was between 74 and 87 km/h.⁴² When the second defendant’s expert was subsequently given a video recorded by cameras maintained by the Land Transport Authority, this video led him to conclude that the average speed up to impact was 82 km/h.⁴³

The second defendant submitted that the court need not choose between the differing expert opinions in determining the appropriate apportionment,⁴⁴ because the difference was not large and there was no dispute that the second defendant was driving above the speed limit.⁴⁵ However, should the court have to do so, the second defendant’s expert opinion should be preferred.⁴⁶ In his momentum exchange calculations, the first defendant’s expert made assumptions about multiple variables,⁴⁷ and relied on a forensic map which was created by a third party who was not called to give evidence.⁴⁸ The first defendant’s expert also relied on third party data to verify the accuracy of this forensic map.⁴⁹ Additionally, there were concerns about the coefficient of friction employed by the first defendant’s expert,⁵⁰ as well as uncertainty over which tyre marks had been...