Cai Xiao Qing v Leow Fa Dong (by his next friend Leow Chye Huat)

Lai Siu Chiu J:

[1] This was an appeal against the decision of the District Court (see Leow Fa Dong v Cai Xiao Qing [2011] SGDC 285) by Cai Xiao Qing (“the appellant”) where the District Judge (“DJ”) found the appellant who was the driver of a car, liable for an accident involving Leow Fa Dong (“the respondent”) who was a cyclist.

[2] On 8 April 2009, at approximately 11 pm, the appellant was driving her vehicle on the slip road leading off from Tampines Avenue 9 to Tampines Avenue 7 when her car hit the respondent at a zebra crossing. The respondent, who was 16 years old at the time, collided into the right-hand wing mirror of the appellant’s vehicle and suffered a fracture to his left collarbone.

[3] Based on a map and pictures of the accident scene, it was noted that Tampines Avenue 9 and Tampines Avenue 7 run perpendicular to one another and intersect at a cross junction. The appellant was then driving along Tampines Avenue 9 in the direction of Tampines Avenue 2. She had been driving along the left-most lane so as to take the exit by the slip road to Tampines Avenue 7 and merge with traffic headed in the same direction. On the other hand, the respondent had been travelling along Tampines Avenue 7 on the side closer to Block 452. He had crossed Tampines Avenue 9 at the cross junction where it met Tampines Avenue 7, and mounted what parties termed “the island” to get to the side of Tampines Avenue 7 nearer Tampines Junior College. To do so he crossed the slip road at the zebra crossing and so collided with the appellant’s vehicle.

[4] The respondent’s case before the District Court was that the collision was caused by the negligence of the appellant in her driving, control and management of her vehicle. In particular she had driven at an excessive speed, failed to come to a halt before the zebra crossing to give way to users and failed to keep a proper lookout. To establish his claim, the respondent called a witness one Mohd Nuruddin (“Nuruddin”) who had allegedly witnessed the accident. The appellant also had a witness in Ms Song Hao (“Ms Song”) who was one of two passengers in the appellant’s vehicle at the material time. The appellant had a counterclaim against the respondent, alleging that the latter was negligent in, inter alia, failing to keep a proper lookout for vehicles that could be reasonably be expected on the road, failing to yield to the appellant’s car that had already crossed the first white line of the zebra crossing at the material time, and for abruptly dashing across the zebra crossing.

[5] Nuruddin had in his affidavit of evidence-in-chief (“AEIC”) deposed that the respondent had been (i) walking next to his bicycle at the material time and (ii) that the appellant’s vehicle had knocked into the respondent whilst he was on the zebra crossing. However, Nuruddin subsequently changed his evidence. On 14 July 2010 before the DJ in the Subordinate Court’s Primary Dispute Resolution Centre Nuruddin stated that: (i) the respondent had been cycling at the material time, and (ii) the respondent had not stopped prior to crossing the zebra crossing and this caused him to cycle into the appellant’s vehicle that was already on the crossing. This change was recorded on 17 February 2011 as an amendment to Nuruddin’s AEIC just before his cross-examination. Nuruddin’s oral testimony was as follows:

[6] It is also worth mentioning at this stage that counsel for the respondent, in anticipation of Nuruddin changing his testimony, orally applied at the start of the trial to amend para 3 of the Statement of Claim in the following manner:

The DJ noted that the application was premature because it was not clear (at that point) whether Nuruddin would amend his evidence. Nevertheless, he granted the Plaintiff leave to amend prospectively.

[7] In the course of trial, Nuruddin gave further oral evidence to the effect that the appellant’s vehicle had “sped by” and that the appellant had “further said she was in a hurry”. In contrast, the appellant and Song averred that the appellant’s car was “going slowly” and that the respondent had been travelling “at a very fast speed”.

[8] After considering all the evidence presented before him, the DJ assessed Nuruddin to be an “independent witness of truth” who had witnessed the collision in its entirety. This was notwithstanding the changes he had made to his AEIC. The DJ then inferred from the language used by Nuruddin in his oral testimony (see [7] above) that the appellant had been speeding. It was on this premise that the DJ found the appellant negligent. At para 25 of his judgment, he said:

[9] The DJ then proceeded to find in favour of the respondent, although he held the respondent 10% contributorily negligent. He did so because “there is a corresponding duty on the part of pedestrians as road users” to take “reasonable care for [their] own safety”. In his view, the respondent was blameworthy for not checking for oncoming traffic before crossing the road.

[10] In the light of his decision, the DJ also dismissed the appellant’s counterclaim in its entirety.

[11] Counsel for the appellant, Patrick Yeo (“Mr Yeo”) argued that the DJ should not have relied on Nuruddin’s evidence to make his findings of fact. This is because Nuruddin had not witnessed the actual collision, as his testimony in cross-examination would imply:

The above extracts from the notes of evidence Mr Yeo contended, would explain why Nuruddin’s account of the accident was inconsistent with other objective and circumstantial evidence. For instance, Mr Yeo surmised that the injuries the respondent sustained would have been far more severe if the appellant had been speeding at the material time. The respondent also testified that the appellant’s vehicle was not travelling too fast, even though it was detrimental to his case to say as such.

[12] Next, Mr Yeo demonstrated how the respondent would have to cycle quite a distance to get to the zebra crossing: at the very least he would have to cycle past 8 lanes (across Tampines Avenue 9) at the traffic light and mount the traffic island. One can thereby conclude that he would have built up enough momentum to be travelling at a speed rather than at walking pace, as Nuruddin testified. Even more significant was the fact that the respondent had left his wallet at the 7-11 Store he was returning to. It was thus more likely than not that the respondent was in a rush to retrieve his wallet, despite his denial to the contrary. This was also more consistent with the testimony of Ms Song and the appellant that the respondent “came at a fast speed”.

[13] Finally, casting even more doubt on the reliability of Nuruddin’s testimony was the fact that he stated he “arranged for [an] ambulance to take the [respondent] to the hospital”. This contradicted both parties’ evidence that the respondent was sent to hospital in the appellant’s car.

[14] In reply to this submission, counsel for the respondent, Adrian Heng (“Mr Heng”) reiterated that the DJ carefully considered all aspects of Nuruddin’s evidence (including the fact that he said he had heard a collision) before assessing him to be a reliable witness. This could be seen from [3] of the DJ’s oral judgment:

[15] Next, Mr Yeo mounted his second argument that the DJ in his finding that Rule 5 of the Road Traffic (Pedestrian Crossings) Rules (“rule 5”) applied, by extension, to give the respondent a right of way. Rule 5 states:

Mr Yeo’s point was that the respondent as a cyclist was a “driver” within the meaning of s 2 of the Road Traffic Act (Cap 276, 2008 Rev Ed). As such, the respondent had no business being on the zebra crossing designated for pedestrians and it was this failure to adhere to the rules that led to the accident. The DJ, however, disagreed. In his view, the strict interpretation of rule 5 as advocated by Mr Yeo was not “in the spirit” of the wording of the rule. In his words:

[16] If this Court were minded to agree with the DJ that the respondent should be given right of way pursuant to rule 5, Mr Yeo then made the alternative argument that rule 5 came with an important qualification: that the driver must see the pedestrian. Given that the respondent was travelling at a speed, the appellant’s inability to notice his approach was completely reasonable in the circumstances.

[17] Finally, Mr Yeo submitted that even if this Court were to find the appellant liable in negligence, the respondent should also be found to have contributed significantly to the accident. As for what appeared to be the DJ’s “policy reasons” for reducing the respondent’s liability by a mere 10% for contributory negligence, Mr Yeo argued that the reasoning was flawed. For completeness the DJ’s reasoning (at [18]) is set out below:

Accordingly, Mr Yeo submitted, contributory negligence on the part of the respondent should be in the region of 30-50%.

[18] As the parties had rightly identified, much of this appeal turned on the treatment of Nuruddin’s evidence by the DJ. Mr Yeo alleged that Nuruddin did not witness the accident. However, this position was not “put” to Nuruiddin in cross-examination as required under the rule of Browne v Dunn [1893] 6 R 67. Rather, it was Mr Heng who invited the DJ to find that Nuruddin did not in fact see the accident (see [14] above). In the absence of giving Nuruddin an opportunity to provide an explanation for his story, the consensus was that the court is free to regard his evidence as undisputed, regardless of the nature of the cross-examiner’s case: Pinsler, Evidence and the litigation process, 3 Student Edition (Lexis Nexis, 2010) at [20.98].

[19] Fortunately, this failure to cross-examine Nuruddin was not fatal. As observed by Pinsler at [20.100]:

This position was applied in the case Liza bte Ismail v Public Prosecutor [1997] 1 SLR(R) 555 where the court found that the accused person’s story in relation to one of the charges was “obviously fanciful” and “wholly unsupported by the documentary evidence”. In my view, this position also neatly aligns itself with the appellate court’s test for overturning a judge’s finding of fact in both civil and criminal cases. Per Seah Ting Soon t/a Sing Meng Co Wooden Cases Factory v Indonesian Tractors Co Pte Ltd [2001] 1 SLR(R) 53 at [22], the judge’s evaluation must be “plainly wrong” i.e. his finding must go against the weight of the evidence.

[20] Returning now to the case before me, the crux of the matter was whether Nuruddin’s testimony went against the weight of the evidence (both circumstantial and objective). I was inclined to answer this question in the positive. The points raised by Mr Yeo as set out in [11]-[13] above although not conclusive when considered separately, did cumulatively shed great doubt on whether Nuruddin actually witnessed the collision. As for Mr Heng’s submission that the DJ had taken this factor into account in his analysis of the evidence, the context in which he considered it was quite different. The DJ was more concerned with whether the respondent bore the burden of proof of clarifying inconsistencies in Nuruddin’s evidence by way of re-examination. Accordingly, I would disregard Nuruddin’s evidence in its entirety. It is trite law that an appellate court, not being in a position to see witnesses to observe their veracity and credibility should be slow in overturning a lower court’s assessment of witnesses in the absence of good reason. However, I was of the view there was good reason in this case.

[21] I should state that I did not find Nuruddin’s act of amending his AEIC to be material. The exercise I was more concerned with was whether his final testimony was corroborative with the rest of the evidence. Furthermore, as the DJ noted, Nuruddin had supplied a plausible reason for the change, namely, that his brother-in-law had read the statement on his behalf and he had signed it without any further questions.

[22] Unfortunately, the rejection of the only independent witness’ testimony left this Court in the invidious position of having to choose one party’s word over that of another. Nevertheless, some reasonable inferences may still be drawn from the evidence before this Court. The inferences, albeit grounded in circumstantial evidence, are arguably more reliable than the allegations of Ms Song and the parties since they were motivated to help either their own or their friend’s respective cases.

[23] It was clear to me that the respondent was cycling at the material time, and not walking beside his bicycle as he claimed. My reasons for this finding are threefold:

(a) In a medical report of Dr Faizal bin Kassim attached to the statement of claim, it stated that “Mr Leow was allegedly involved in a road traffic accident earlier the same day where he was a cyclist that was cycling past a zebra crossing...” (emphasis added); and

(b) In a stern warning issued by the traffic police to the respondent, it was recorded that “the cyclist has been given a warning letter for riding other than in an orderly manner and without due regard to the safety of others” (emphasis added).

(c) The respondent applied to amend his pleadings in the midst of trial (see [6] above). This seemed to be a concession on his part.

[24] On (a), I noted that during cross-examination, the respondent averred that he had never told Dr Faizal how he got injured. When asked how Dr Faizal formed the impression that he had been cycling, he attributed the brief to his mother, who he claimed was mistaken. I find this explanation suspect. If the respondent did not agree with Dr Faizal’s medical report, it was his prerogative to write to the doctor to correct the report to support his statement of claim. Instead, he submitted a report that contradicted his case.

[25] On (b), in the police reports by the appellant and respondent the latter was classified as a “cyclist”. When cross-examined on this point, the respondent was evasive:

Even taking the respondent’s position at its highest, i.e. that the policeman had recorded his statement wrongly, by the time the stern warning was issued by the traffic police stating that the respondent was cycling at the material time, he should have written to the traffic police to clarify his position. The fact that he did not constitutes, in a way, an admission to liability.

[26] I move on next to examine the conduct of the parties. I note that in cross-examination the respondent insisted that he had stopped to check for traffic. The transcript states:

This account however, did not explain why the site of impact was the right-hand side of the appellant’s vehicle, rather than the front. If the appellant truly had been at a distance, she would have had to accelerate very quickly as she exited the slip road to hit the respondent. This would be counter-intuitive to most drivers, since one would have to stop at the end of the slip road to check for merging traffic.

[27] Conversely, the more plausible explanation was that the appellant was much closer to the zebra crossing than the respondent claimed, and the respondent, noticing her as he cycled to the edge of the crossing due to her headlights, miscalculated that there would be enough time for him to clear the short distance. As such, instead of waiting for the car to come to a halt, he had proceeded with cycling and collided with her vehicle. Admittedly this situation is, to some extent based on a hypothesis. However, this was in part due to the paucity of objective evidence before me. I note in particular that no evidence was led to confirm that the damage appraisal of the appellant’s car dealt only with damage as a result of the accident, and not a result of other day to day causes. As such, I would accept the evidence at its face value.

[28] In summary, I prefer the evidence of Ms Song and the appellant to that of the respondent’s. In my view, their account was consistent with the objective evidence before me. I would thus overturn the DJ’s findings of fact and hold that:

(a) The respondent was cycling at a speed at the material time;

(b) The appellant was not driving at an excessive speed at the material time; and

(c) The respondent noticed the appellant’s presence, due to her headlights, but proceeded nevertheless to cross before her vehicle came to a halt;

(d) The appellant was not aware of the respondent’s presence until the collision occurred. This was partly because he was travelling quite fast (see [12] above); and

As for the DJ’s decision in respect of rule 5, I would agree with Mr Yeo’s submission at [16] above.