General Division of the High Court · Decided 10 June 2024

Lim Chun Yong (alias Lin Junxiong) (suing through his deputy and litigation representative Fung Wui Mang Janet) v Yap Jeffrey (alias Yap Kean Hui) and others

[2024] SGHC 150Case no. Suit No 153 of 2021

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Evidence Act 1893

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Introduction
[1] This suit arises from a chain collision involving three motor vehicles in Malaysia that left the accident victim – one Mr Lim Chun Yong (Lin Junxiong) (“Mr Lim”) – with severe injuries, including permanent brain injuries. Mr Lim, who is 44 years old as of the date of this judgment, now resides in a nursing home. He is suing through his wife and deputy, Ms Janet Fung Wui Mang (“Ms Fung”). The other parties are the three drivers of the motor vehicles involved in the accident, the employer of one of those drivers, and the owner of one of those motor vehicles. The insurer of the vehicle driven by the first defendant was given leave to be added as an intervener in the suit, and later, the said insurer was added as the sixth defendant.
[2] The trial before me was not bifurcated. This judgment first addresses liability, before turning to quantum.
Liability
Background
[3] On 12 February 2018, at approximately 12.15pm, there was a chain collision in the vicinity of KM 7.6 North South Highway (heading towards Kempas Toll Plaza, in the direction of Kuala Lumpur, Malaysia), involving three vehicles.
[4] The foremost vehicle in the chain was a prime mover towing a trailer carrying an empty 40-footer shipping container (the “semi-trailer”). The semi-trailer bore the vehicle registration number JSG 8995. The semi-trailer was driven by Mr Mohd Jafri bin Abdul Hamid, who is the fourth defendant. At the time when the accident occurred, he was driving the semi-trailer in the course of his employment with the fifth defendant, Syarikat Continent Lorry Transport Sdn Bhd, which is the owner of the semi-trailer.
[5] The second vehicle (ie, the middle vehicle) in the chain was a Toyota Innova car bearing vehicle registration number JNP 8890 (the “Toyota”). The Toyota was driven by the first defendant, Mr Jeffrey Yap @ Yap Kean Hui, and it is owned by the second defendant, Mr Liew Loy Sang. The plaintiff has pleaded that the first defendant was driving the Toyota as the servant or agent of the second defendant at the time when the accident occurred. There is no denial of this averment as neither the first nor the second defendants entered an appearance in the present suit. The sixth defendant, AmGeneral Insurance Berhad, was the insurer of the Toyota at all material times. At the time of the collision, Mr Lim was the front seat passenger in the Toyota. Ms Fung was in the rear seat of the Toyota, behind Mr Lim. Their two children, aged 1 year old and 4 years old at the time when the accident occurred, were next to her in the same row of seats in the Toyota. Ms Fung had gotten the first defendant’s contact from her friend and she had hired him to drive her family to Senai Airport for a flight to her hometown in Sabah, Malaysia.
[6] The rearmost vehicle in the chain was a BMW X3 car bearing vehicle registration number WXK1808 (the “BMW”). At all material times, the BMW was owned and driven by the third defendant, Mr Low Woon Hong.
[7] Collision reconstruction experts were appointed to provide expert evidence in this suit. Dr Shane Richardson (“Dr Richardson”) was appointed by the fourth and fifth defendants. Mr Charles Henry Aust (“Mr Aust”) was appointed by the sixth defendant. Other than preparing their own respective expert reports and supplementary reports, the two experts conducted a caucus in person on 6 October 2023 in Singapore, and produced a Joint Expert Report dated 6 October 2023 setting out areas of agreement and disagreement in their reconstruction of the accident.
[8] The two experts agreed that the accident took place on a stretch of highway that was 270m before the Kempas Toll Plaza, with a road width of 8.3m. There were no lane markings on the roadway at the point of collision, as the lane markings separating the roadway into two lanes had ended some distance before the point of collision. The experts agree that shortly after the accident, the semi-trailer was generally located at the centre of the roadway. The experts differ as to whether or not the semi-trailer had been moved a small distance forward during the emergency recovery efforts. The experts agree that the rest position of the Toyota was such that the rear right tyre of the Toyota was on the right fog line of the roadway, with the left front corner of the Toyota engaged with the rear right corner of the semi-trailer’s trailer. The BMW came to rest straddling the right fog line, with the right wheels of the BMW slightly over the fog line.
[9] As a result of the collision, Mr Lim was seriously injured. He had been wedged between his seat and the rear right of the semi-trailer. Rescuers from the emergency services freed Mr Lim using equipment. He was conveyed by ambulance to Hospital Sultanah Aminah in Malaysia. Mr Lim was medically evacuated to Singapore for further treatment on 13 February 2018 and was admitted into the Surgical Intensive Care Unit in Singapore General Hospital on 15 February 2018. Mr Lim’s injuries will be elaborated upon later, when the issue of quantification of damages is canvassed.
Parties’ cases
Plaintiff’s case
[10] The plaintiff submits that the first defendant (with the second defendant vicariously) should be found 50% responsible for the accident, the third defendant 20% responsible, and the fourth defendant (with the fifth defendant vicariously) 30% responsible.
[11] The plaintiff submits that all the defendants, save for the sixth defendant, were liable to some extent for the accident as their acts or omissions caused and contributed to the accident and thus Mr Lim’s injuries.
[12] In relation to the fourth defendant, the plaintiff’s case is that the fourth defendant knew that he was supposed to keep to the left lane as he was operating a heavy vehicle, but the fourth defendant decided to travel in the centre of the road, thus creating a dangerous situation. On the plaintiff’s case, the fourth defendant’s negligence resulted in the first defendant taking evasive action, which precipitated his overreaction and the consequent collision.
[13] In relation to the third defendant, the plaintiff’s case is that the third defendant had been driving too fast, beyond the speed limit, and had failed to keep a safe following distance. The plaintiff submits that the crash between the BMW and the Toyota pushed the Toyota forward and contributed to Mr Lim’s injuries.
[14] In relation to the first defendant, the plaintiff submits that he had been driving recklessly beyond the speed limit around the time when the collision between the Toyota and the semi-trailer occurred. The plaintiff submits that the first defendant likely failed to keep a proper lookout, and had overreacted by swerving too far right and then too far left, thus colliding with the semi-trailer.
[15] As between the various primary tortfeasors, the plaintiff submits that the bulk of the responsibility for the accident should lie with the first defendant and the fourth defendant since their collision created a sudden obstruction which forced the third defendant to take evasive action.
[16] The plaintiff submits that he is entitled to judgment against the first to fifth defendants on a joint and several basis as they have contemporaneously committed a tort against the plaintiff and caused indivisible damage. The plaintiff further pleaded that the first defendant drove the Toyota as servant/agent of the second defendant, who is thereby vicariously liable for the negligence of the first defendant. The plaintiff also pleaded that the fourth defendant drove the semi-trailer as servant/agent of the fifth defendant, who is thereby vicariously liable for the negligence of the fourth defendant.
Sixth defendant’s case
[17] The sixth defendant’s primary case is that the first defendant should be found completely not liable for the accident. In the alternative, the sixth defendant submits that the first defendant (with no mention of the vicarious liability or lack thereof of the second defendant) should be found 10% responsible for the accident, with the third defendant 10% responsible, and the fourth defendant (and the fifth defendant vicariously) 80% responsible.
[18] The sixth defendant contends that there is no cogent evidence that the first defendant was speeding at the time of the collision. The sixth defendant also denies that the first defendant was driving impatiently and recklessly in a manner that caused or contributed to the accident. On the sixth defendant’s case, the first defendant had already slowed down from his original speed of between 100km/h and 110km/h by the time the collision between the Toyota and the semi-trailer had occurred. The sixth defendant also denies that the first defendant overreacted to the movement of the semi-trailer, and instead did what any reasonably competent and diligent motorist would have done instinctively to avoid a more calamitous accident. The sixth defendant argues that the agony of the moment defence is still available to the first defendant despite his failure to appear for the trial. The sixth defendant also submits that there is no reasonable basis for adverse inferences to be drawn against the first defendant merely because he did not attend the trial.
[19] According to the sixth defendant, the third defendant was negligent in that his BMW collided into the rear of the Toyota, propelling the Toyota forward to collide into the rear of the semi-trailer. As such, the third defendant should bear some contribution for the plaintiff’s claim, which contribution the sixth defendant quantifies at 10%.
[20] The sixth defendant argues that the fourth defendant was negligent by veering right, and encroaching into the path of the Toyota, putting the first defendant in a situation of imminent danger. In that situation, the first defendant was forced, in the agony of the moment, to react and take emergency evasive action in response to the fourth defendant’s encroachment by veering to the right and then left, which led to the collision. The first defendant thus had no reasonable time or opportunity to calibrate a proper response to avoid the collision. The sixth defendant takes the position that the accident was caused solely by the negligence of the fourth defendant, and thus sole liability for the accident must rest on the fourth defendant primarily, and the fifth defendant vicariously. In the alternative, if the court finds the first defendant to be negligent, the sixth defendant submits that the first defendant’s liability for the accident should be no more than 10%.
[21] Finally, the sixth defendant argues that the burden is on the plaintiff to prove his claim for negligence against each of the defendants, and the res ipsa loquitur doctrine cannot be applied.
Third defendant’s case
[22] The third defendant submits that the first defendant and the fourth defendant should collectively be found 90% responsible for the accident, and the third defendant 10% responsible.
[23] The third defendant submits that the fourth defendant was negligent in that: (a) he decided to pull out into the right lane of the highway and subsequently travel down the centre of the road, creating a hazardous situation for other road users; (b) he failed to pay proper attention to the right side of the semi-trailer as he travelled down the centre of the highway; and (c) he exacerbated the dangerous situation through his careless control of the semi-trailer which allowed the semi-trailer to inadvertently veer right and cause the first defendant to swerve.
[24] As for the first defendant, the third defendant submits that the first defendant overreacted when there was no actual encroachment into the Toyota’s path by the semi-trailer, such that the overreaction cannot be considered to have been done in the agony of the moment. In reality, the first defendant had simply displayed poor control and management of the Toyota. Moreover, the third defendant submits that the agony of the moment defence cannot apply to the first defendant as he was responsible for placing himself in a dangerous situation and created the conditions for overreaction by travelling at an excessive speed and driving recklessly.
[25] The third defendant does not dispute that he had failed to bring his BMW to a stop in time and had collided into the rear of the Toyota. His position is that his BMW had collided with the rear of the Toyota after the Toyota had collided with the semi-trailer. He concedes that he was negligent in failing to keep a sufficient following distance from the Toyota.
[26] In relation to the apportionment of liability as between the defendant tortfeasors, the third defendant submits that the more severe first collision between the semi-trailer and the Toyota contributed more to Mr Lim’s injuries than the subsequent minor collision between the BMW and the Toyota. Moreover, the third defendant submits that the first collision involving the semi-trailer and the Toyota is the predominant reason for the overall accident as it created a situation where the Toyota came to an unexpected and virtually immediate stop on the right lane where the BMW was travelling. This prior collision between the semi-trailer and the Toyota (and thus the first and fourth defendants’ negligence) had greater causative potency than the second collision between the Toyota and the BMW (which resulted from the third defendant’s negligence). The third defendant also submits that the first and fourth defendants were more blameworthy than the third defendant. In this regard, the third defendant emphasises the destructive disparity between the much larger semi-trailer as compared to the Toyota and the BMW. The third defendant also submits that the first defendant is more blameworthy than the third defendant as the first defendant had allegedly attempted to overtake the semi-trailer without ensuring that there was sufficient safety margin between the Toyota and the semi-trailer and/or without taking into account any possibility of lateral movement on the part of the semi-trailer. The third defendant argues that his failure to keep a sufficient following distance was due to his reasonable expectation that vehicles would start slowing down in anticipation of the upcoming tollbooth, and that he had reacted well to the collision between the semi-trailer and the Toyota by managing to slow his vehicle to 10km/h at the point of impact between his BMW and the Toyota.
Fourth and fifth defendants’ case
[27] The fourth and fifth defendants submit that the first defendant (and the second defendant vicariously) should be found 55% responsible for the accident, the third defendant 30% responsible, and the fourth defendant (and the fifth defendant vicariously) 15% responsible.
[28] The fourth and fifth defendants submit that the first defendant was likely driving at around 90km/h to 100km/h immediately prior to the collision between the Toyota and the semi-trailer, which was above the speed limit of 60km/h. They submit that the first defendant had reacted to the rightwards movement of the semi-trailer by swerving excessively to the right before making a sharp turn to the left and into the right rear corner of the semi-trailer. Relatedly, the fourth and fifth defendants submit that this reaction on the part of the first defendant can be attributed to the high speed at which he was travelling at the material time, which afforded him insufficient space and time to react to the perceived exigency. The fourth and fifth defendants add that the first defendant could have avoided the collision by maintaining a straight line of travel without deviation as there was ample space for the Toyota to drive past the semi-trailer. They argue that the first defendant does not qualify for the agony of the moment defence because the semi-trailer did not swerve or encroach into the path of the Toyota. Thus, there was no emergency for the first defendant to react to and the overreaction of the first defendant was done without due care and consideration expected of a reasonable and prudent road user. Moreover, the first defendant cannot avail himself of the defence because he was the one who placed himself in such a dangerous position by driving at an excessive speed. The fourth and fifth defendants submit that with the first defendant’s unexcused absence from the proceedings, the court should draw adverse inferences against him.
[29] The fourth and fifth defendants submit that the semi-trailer was travelling at an extremely low speed of about 10km/h immediately prior to the impact between the semi-trailer and the Toyota. They also submit that the semi-trailer was leaning to the right but did not swerve right or encroach into the path of travel of the Toyota. However, they concede that the facts do merit a finding of negligence on the part of the fourth defendant in that he failed to exercise due care and skill in the management and control of the semi-trailer at the time of the collision between the Toyota and the semi-trailer. They concede that the fourth defendant ought to have known that heavy vehicles are more difficult to control, require a quick reaction time, that chances of a collision are higher in heavy traffic, and that heavy vehicles are potentially more destructive. They further concede that in allowing the semi-trailer to move closer to the Toyota on the right and failing to steer the semi-trailer in a straight manner, the fourth defendant had fallen short of the standard of care expect of him. Nonetheless, the fourth and fifth defendants submit that the fourth defendant’s negligence remains a smaller contributing factor to the accident as compared to the first and third defendants’ negligence. They argue that it was reasonable for the fourth defendant to avoid traffic in the highly congested left lane by moving into the adjacent lane and travelling for a distance in this lane prior to the collision between the Toyota and the semi-trailer, albeit the fourth defendant should be required to exercise even greater care and control over the movement of his semi-trailer. The fourth and fifth defendants argue that the presence of the semi-trailer in the middle of the highway at the time of the collision between the Toyota and the semi-trailer did not create a dangerous situation for other road users – the semi-trailer was moving slowly, visibility was not impaired, and other road users were keenly aware of the presence of the semi-trailer in the middle of the highway. The fourth and fifth defendants also point out that the Malaysian traffic police had investigated the accident and fined both the first and third defendants, but there was no offence levelled against the fourth defendant in relation to the accident.
[30] The fourth and fifth defendants argue that the BMW was travelling at a speed of about 80km/h to 90km/h immediately prior to the impact between the BMW and the Toyota. They submit that the third defendant had followed too closely behind the Toyota, which was the primary cause of the collision between the Toyota and the BMW. They argue that the excessive speed at which the third defendant was travelling also impeded his ability to react to the collision between the semi-trailer and the Toyota.
[31] The fourth and fifth defendants’ case is that there was, firstly, a prior collision between the semi-trailer and the Toyota, and then, secondly, a later collision between the Toyota and the BMW. They argue that the prior collision between the semi-trailer and the Toyota had contributed more to the extent and severity of Mr Lim’s injuries as compared to the collision between the Toyota and the BMW. The collision between the Toyota and the BMW merely aggravated the extent of Mr Lim’s injuries. Thus, the fourth and fifth defendants submit that a 70 : 30 attribution of liability as between the Toyota / semi-trailer collision and the Toyota / BMW collision respectively accurately reflects the proper apportionment of liability. In relation to the Toyota / semi-trailer collision, the fourth and fifth defendants submit that the first defendant’s negligence was the predominant cause of the serious injuries suffered by Mr Lim, whereas the fourth defendant’s negligence was momentary and is a smaller and insignificant contributing factor. Moreover, the fourth and fifth defendants submit that the fourth defendant’s actions, while negligent, were neither intentional nor deliberate, whereas the first defendant took a calculated decision to speed and carried out inexplicable and inexcusable manoeuvres. As for the third defendant, the fourth and fifth defendants submit that his actions singlehandedly caused the Toyota / BMW collision.
Issues to be determined
[32] I will first consider the key factual disputes concerning liability for the accident, before turning to examine the legal principles on imposition of liability (if any) on the defendants and the apportionment of said liability.
[33] The key factual disputes are as follows:
(a) Where was the semi-trailer travelling on the two-lane highway around the time the collision between the Toyota and the semi-trailer occurred?
(b) Was the semi-trailer stationary or moving at the time the Toyota collided with its rear and, if it was moving, how quickly?
(c) Did the semi-trailer move to its right and encroach into the path of the Toyota?
(d) Was the Toyota being driven recklessly and/or at an excessive speed around the time of its collision with the rear of the semi-trailer?
(e) What were the movements of the Toyota around the time of its collision with the semi-trailer?
(f) Was the BMW being driven with an insufficient following distance and/or at an excessive speed around the time of its collision with the rear of the Toyota?
(g) What was the temporal sequence of the collisions between the semi-trailer, the Toyota and the BMW?
(h) To what extent did the various impacts cause or contribute to the injuries on Mr Lim?
[34] The key legal issues are as follows:
(a) Is negligence established as against the various defendant tortfeasors (ie, excluding the sixth defendant)?
(i) Is the doctrine of res ipsa loquitur applicable?
(ii) Is the agony of the moment defence applicable?
(b) Are any of the defendants vicariously liable for the acts and omissions of the primary tortfeasors?
(c) To what extent is each defendant liable to contribute to the damages to be awarded for the accident?
Analysis of the Facts
[35] I turn first to the facts.
Position of semi-trailer on two-lane highway
[36] In my judgment, around the time of the collision between the Toyota and the semi-trailer, and as the highway approached the Kempas Toll Plaza, the semi-trailer had been travelling in the middle of the highway for a considerable distance by the time the collision between the Toyota and the semi-trailer occurred.
[37] The fourth defendant (who was the driver of the semi-trailer) testified that about one kilometre away from the Kempas Toll Plaza, he moved the semi-trailer out of the left lane towards the right lane because the left lane was congested. As the highway approached the Kempas Toll Plaza, the width of the highway opened up and the fourth defendant ended up straddling the centre of the highway and travelling in that position for some time up till and including the time of the collision between the Toyota and the semi-trailer. This is corroborated by Ms Fung, who testified that prior to the collision between the Toyota and the semi-trailer, she saw that the highway could accommodate three lanes of traffic and the semi-trailer was in the centre lane. As I will elaborate on later when I turn to the issue of whether the semi-trailer encroached into the path of the Toyota, the fourth defendant’s account is further corroborated by the third defendant (who was the driver of the BMW).
Whether semi-trailer was moving and its speed
[38] I find that the semi-trailer was moving at a slow speed of 5km/h to 10km/h around the time the collision between the Toyota and the semi-trailer occurred. This is agreed between the two experts who testified in a hot-tubbing setting.
Whether semi-trailer encroached into Toyota’s path
[39] I find that around the time of the collision between the Toyota and the semi-trailer, the semi-trailer was travelling generally straight at a relatively slow speed of 5km/h to 10km/h, but there was a rightwards movement of the semi-trailer just prior to the collision. This rightwards movement was not substantial or dramatic enough to cut into the path of travel of the Toyota, but the movement was sufficiently visible to cause a reaction on the part of the Toyota driver.
[40] In this regard, I find the testimony of the third defendant particularly helpful. The third defendant had been driving behind the semi-trailer and the Toyota, which makes his vantage point ideal for the purposes of ascertaining the relative positions of the semi-trailer and the Toyota. The third defendant took pains to explain repeatedly that the semi-trailer moved closer to the Toyota, but it did not cut into the Toyota’s path. The third defendant convincingly clarified that whereas his affidavit had stated that the semi-trailer “veered” towards the right, that was because he had been speaking to his lawyer in Mandarin and there might have been issues with translation when the affidavit was produced in English. The third defendant took pains to emphasise that his actual account is not that the semi-trailer veered right, and instead, the semi-trailer was “leaning closer” to the Toyota, such that the semi-trailer would have been on the lane markings if there had been lane markings at the point where the collision between the Toyota and the semi-trailer occurred, though the semi-trailer’s tyres had not yet crossed over to the lane in which the Toyota was traveling.
[41] I also note that the third defendant’s account is largely consistent with the account given by the other witnesses. The fourth defendant testified that he did not encroach into the path of the Toyota. However, he conceded that he was not sure if his semi-trailer had moved rightwards. As for Ms Fung, she was asked whether the semi-trailer had cut into the path of the Toyota, and her initial response was that semi-trailer had moved from the centre towards the Toyota. However, she later took the position that the semi-trailer swerved to the right. Set against this, however, is her evidence in her affidavit of evidence-in-chief (“AEIC”) that she was a rear seat passenger in the Toyota who “would not have been paying much attention to the traffic movements of other vehicles around us and was probably more focused on [her] children” and who “may not precisely recall everything that happened in the moments prior to the collision”. This should be contrasted with the third defendant’s evidence that he could see the positions of the semi-trailer and the Toyota “very clearly” and that he could remember the events of the collision between the Toyota and the semi-trailer “very clearly”.
[42] I find that around the time of the collision between the Toyota and the semi-trailer, there was a rightwards movement of the semi-trailer, but no encroachment into the path of travel of the Toyota.
Excessive speed or reckless driving of Toyota around the time of collision
[43] I find that there is insufficient evidence for me to conclude that the first defendant was driving recklessly or was speeding at the time of the collision between the Toyota and the semi-trailer.
[44] I note that Ms Fung gave evidence that the first defendant had been driving at speeds in excess of 100km/h prior to the collision between the Toyota and the semi-trailer, which she could discern because she saw the speedometer of the Toyota. This is not indicative of speeding, in and of itself, because there is evidence that further up the highway (ie, further away from the Kempas Toll Plaza), the speed limit is 110km/h. Ms Fung’s evidence, however, is that about the time of the collision between the Toyota and the semi-trailer, while she did not see the speedometer of the Toyota, her estimation is that the Toyota was travelling at about the same speed as when she saw the speedometer earlier. There is evidence, and it is undisputed, that the speed limit at the accident location is 60km/h.
[45] The key issue for my determination, therefore, is whether there is sufficient evidence to suggest that the first defendant, at the point of the collision between the Toyota and the semi-trailer, was traveling in excess of 60km/h. Given Ms Fung’s caveats as to her memory and her observations of traffic as noted above at [41], I cannot fully rely on her perception that the first defendant was travelling at 100km/h or above at the time of the collision between the Toyota and the semi-trailer. In any case, Ms Fung did not manage to look at the speedometer at that point in time, and her view that the Toyota was travelling at 100km/h or above would be based on her untrained and unaided estimation. In this regard, I find that the third defendant’s evidence throws further doubt on the veracity of Ms Fung’s perception. The third defendant was directly asked whether he would agree with Ms Fung’s testimony that the Toyota was travelling at a speed of 100km/h or more. The third defendant’s evidence is that he does not think that the Toyota was likely to reach a speed of 100km/h because everyone slows down near the toll. Moreover, it is also his evidence that there were many cars on the highway that day, so even if one wanted to drive at 90km/h or 100km/h, it would not be possible.
[46] The expert evidence in this regard does not conclusively resolve the question because the experts’ opinions focused on the change in velocity of the Toyota at the point of collision. Whilst testifying in court, both experts acknowledged that it is possible for the speed of the Toyota to be 100km/h or above near the time of impact, with emergency braking right before impact to bring the speed of the Toyota down at the point of impact between the Toyota and the semi-trailer. Crucially, however, neither of the experts took the view that the Toyota must have been, or was likely to have been, travelling at above 60km/h. In fact, Mr Aust opined that the speed of the Toyota was between 40km/h and 60km/h at the point of collision. While it is possible that this might have been the final speed of the Toyota, post-emergency braking (with the implication that the Toyota was speeding just prior to emergency braking), the experts were directly asked if there is any objective evidence that the Toyota performed emergency braking, and they did not identify any such objective evidence.
[47] At this juncture, it is appropriate for me to say a few words about adverse inferences because of the conspicuous absence of the first defendant from the present proceedings. I have to consider whether to draw any adverse inferences against him, and, if yes, what kinds of inferences to draw.
[48] The law on adverse inferences was authoritatively set out by the Court of Appeal in Tribune Investment Trust Inc v Soosan Trading Co Ltd [2000] 2 SLR(R) 407 (“Tribune Investment”) and Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 (“Sudha Natrajan”).
[49] The Court of Appeal in Tribune Investment stated at [50]:
[50] The Court of Appeal in Sudha Natrajan stated at [20]:
[51] As the Court of Appeal stated in Tribune Investments at [50], where “the trial judge is of the view that the plaintiffs themselves had not made out their claim to the requisite standard, then no drawing of an adverse inference against the defendants is necessary”. Similarly, the Court of Appeal in Sudha Natrajan at [20(c)] stated that “[t]here must, however, have been some evidence, even if weak, which was adduced by the party seeking to draw the inference, on the issue in question, before the court would be entitled to draw the desired inference”.
[52] In my judgment, the evidence provided by the third defendant and by the collision reconstruction experts cast doubt on Ms Fung’s evidence that the first defendant was speeding. There is little room for adverse inferences to operate here because I have not found any specific gaps in the evidence, which, if bridged by a specific inference, would have changed my view of whether the first defendant was speeding. To use another analogy, there is no spark lying dormant in the evidence that, if kindled with an adverse inference, could erupt into a full-fledged basis for a finding of wrongdoing. It would not be principled for me to explain away the evidence of the third defendant and the evidence of the collision reconstruction experts, and favour Ms Fung’s uncertain testimony, just because the first defendant is not present to give his version of events.
[53] I also note that Ms Fung has given evidence that before the collision between the Toyota and the semi-trailer, the first defendant was driving recklessly, impatiently, and was weaving between lanes. The third defendant disagreed with Mr Fung’s characterisation of the first defendant’s driving as reckless. The third defendant further clarified that he was not making any allegation that the first defendant had failed to maintain proper lane discipline; instead, the third defendant’s evidence on the stand is that the first defendant did not change lanes, and at the time of the collision between the Toyota and the semi-trailer, the first defendant was merely taking evasive action. Ultimately, the factual inquiry I have to undertake concerns the actions of the first defendant around the time of the collision between the Toyota and the semi-trailer. The first defendant may have driven recklessly some time before the collision, but if those reckless acts did not cause or contribute to the accident, then those acts would not be legally relevant acts for the purpose of the plaintiff’s tort claim.
[54] I am unable to conclude that the first defendant was speeding or driving recklessly around the time of the collision between the Toyota and the semi-trailer.
Movements of Toyota around the time of collision
[55] In my judgment, the Toyota had excessively swerved right, and then left, to impact into the rear of the semi-trailer.
[56] The third defendant testified that he could remember “very clearly” and “can say for certain” that he saw the Toyota swerve right, with the Toyota almost hitting into the centre divider of the highway, and then turn back to the left to collide with the semi-trailer. In the third defendant’s view, the first defendant’s manoeuvre was an overreaction, and if the first defendant had not overreacted and gone straight instead, there would not be a collision between the semi-trailer and the Toyota. The third defendant further ventures the opinions that “the Toyota driver might have been inexperienced, therefore, leading to him unable to control the vehicle properly”, that “if he had better control of his vehicle, he might have just made slight adjustments instead of taking a drastic turn towards the right side”, and that while “everyone … would also have taken the same evasive action to avoid collision”, the “magnitude of this action” may differ. Mr Fung’s evidence provides some corroboration in that it is her evidence that the Toyota suddenly swerved right. Both experts agree that if the first defendant had simply steered to the right, without steering back to the left, he could have gone past the semi-trailer successfully without the risk of collision.
[57] A key question that I have to determine is the magnitude of the first defendant’s swerves and whether those manoeuvres were reasonable responses to the rightwards movement of the semi-trailer. This factual finding will have implications on my legal analysis of whether the first defendant was negligent. In this regard, I must emphasise that it is for the court, and not for the third defendant, to pass judgment on the reasonableness of the first defendant’s manoeuvres. However, the opinion of the third defendant, as a lay witness, is nonetheless relevant in helping the court reach a considered decision.
[58] In this regard, s 32B(3) of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”) is relevant. Section 32B(3) of the Evidence Act provides that “[w]here a person is called as a witness in any proceedings, a statement of opinion by him or her on a relevant matter on which he or she is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him or her, is admissible as evidence of what he or she perceived”. As stated in Jeffrey Pinsler, Evidence and the Litigation Process (LexisNexis, 7th Ed, 2020) (“Pinsler on Evidence”) at para 8.088, “the rationale of s 32B(3) is that a witness who is unable to effectively communicate relevant facts without including his inferences based on those facts should be permitted to state those inferences in the interest of clear and accurate testimony”.
[59] The opinion provided by the third defendant is therefore admissible as it conveys relevant facts personally perceived by him. Based on the third defendant’s visual observation of the initial collision, the first defendant’s manoeuvres were excessive; had these excessive manoeuvres not been undertaken, the accident would not have occurred. Moreover, the excessiveness of the first defendant’s manoeuvres was of such magnitude as to lead the third defendant to form the inference or opinion that the first defendant might have been inexperienced, leading to him being unable to control the Toyota properly. I bear in mind, additionally, that the semi-trailer was travelling slowly at 5km/h to 10km/h around the time the collision between the Toyota and the semi-trailer occurred (see [38] above) and there was no encroachment of the semi-trailer into the path of the Toyota (see [42] above). A dramatic rightward and then leftward swerve is unwarranted in response to a slow-moving heavy vehicle that has not encroached onto one’s path of travel. All these facts, taken together, lead me to my judgment that the first defendant’s manoeuvres were in excess of what a reasonable careful driver with reasonably good control of his vehicle and reasonable judgment would have done.
[60] I am fortified in my conclusion by the absence of the first defendant. This is where, under the rule stated in Sudha Natrajan at [20(c)], an adverse inference can be usefully drawn. There is evidence to demonstrate the unreasonably excessive manoeuvres of the first defendant, and this conclusion is strengthened by the absence of the first defendant, who should have entered an appearance and provided his account of his manoeuvres. The court is thus irresistibly led to the conclusion that the first defendant’s manoeuvres were unreasonably excessive.
Speed, following distance and manoeuvres of BMW
[61] No clear evidence was elicited from the third defendant concerning his speed around the time of the collision between the BMW and the Toyota. In fact, as noted above at [45], the third defendant took the position that everyone on the road was likely to slow down near the toll and it was not possible to drive at 90km/h or 100km/h around the time and location of the accident as there were many cars. The experts were also unable to provide an estimation of the BMW’s speed, and their evidence focused on the change in velocity of the BMW in the collision. I am hence unable to conclude the third defendant was speeding.
[62] However, the third defendant, whilst on the stand, conceded that he was following the Toyota too closely, with a distance of less than two car lengths, such that he was unable to complete braking in time to avoid colliding into the Toyota. In the third defendant’s closing submissions, he rightly conceded that there was insufficient following distance between the Toyota and the BMW and he was negligent for failing to keep a sufficient following distance. I so find.
[63] Both experts are agreed that if the Toyota had passed the semi-trailer safely, the position of the BMW on the highway was such that it was far enough to the right of the highway to pass the semi-trailer successfully.
Sequence of collisions
[64] In my judgment, the collision between the Toyota and the semi-trailer happened first, followed shortly by the collision between the BMW and the Toyota.
[65] The third defendant’s evidence is that the Toyota collided into the semi-trailer and both vehicles came to an abrupt stop. He saw this and tried to apply his emergency brakes to avoid colliding into the Toyota but failed, resulting in the second collision. Both experts agree that there were two separate collisions, but they were unable to say which collision happened first. Ms Fung testified that she felt two impacts but was not sure which one came first.
[66] I have no reason to doubt the third defendant’s uncontradicted account, and he had the best vantage point out of all the witnesses who were at the accident scene. The first defendant is not present to provide an alternative view of the accident. I thus conclude that the collision between the semi-trailer and the Toyota happened first, followed shortly by the collision between the Toyota and the BMW.
Extent of cause / contribution of the collisions to Mr Lim’s injuries
[67] Both experts agree that the injuries on Mr Lim are primarily caused by the intrusion into the occupant space of the Toyota caused by the collision between the Toyota and the semi-trailer, but the injuries could have been exacerbated by the impact of the BMW colliding into the rear of the Toyota.
[68] Both experts are also able to offer an opinion on the contribution of the two collisions to the injuries sustained by Mr Lim. They agree that from the intrusion perspective, the semi-trailer/Toyota collision had a 66.6% to 90% contribution to Mr Lim’s injuries, and the Toyota/BMW collision had a 10% to 33.3% contribution.
The law
[69] The law on duties of care owed by road users to others is trite. The contributors to Halsbury's Laws of Singapore - Tort vol 18 (LexisNexis Singapore, 2023) (Halsbury's on Tort) at para 240.255 state the following:
[70] In relation to the defence of “agony of the moment”, the Court of Appeal in Thorben Langvad Linneberg v Leong Mei Kuen [2013] 1 SLR 207 (“Thorben”), after a survey of the authorities, held that a defendant was not negligent if his actions were “actions which a reasonably prudent man in his position would take”, and “all that was necessary was that the [defendant’s] conduct should not have been unreasonable, taking the exigencies of the particular situation into account” (Thorben at [103]).
[71] As for the doctrine of res ipsa loquitur, this is a rule of evidence that enables a plaintiff to establish a prima facie case of negligence in the event that there is insufficient direct evidence to establish the cause of the accident in a situation where the accident would not have occurred in the ordinary course of things had proper care been exercised. As the Court of Appeal held in Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2018] 1 SLR 76 at [39], the three requirements for the application of res ipsa loquitur are:
(a) The defendant must have been in control of the situation or thing which resulted in the accident.
(b) The accident would not have happened, in the ordinary course of things, if proper care had been taken.
(c) The cause of the accident must be unknown.
As the court held in BNJ (suing by her lawful father and litigation representative, B) v SMRT Trains Ltd and another [2014] 2 SLR 7 ("BNJ ") at [139]–[140], the res ipsa loquitur doctrine operates to fill an evidential gap, and where there is evidence of how the accident occurred, there is no evidential gap to speak of and the doctrine has no relevance.
[72] In the event that I find more than one of the defendants liable for negligence, the issue of apportionment of liability and contribution as between the defendants would arise. As noted by the Court of Appeal in TV Media Pte Ltd v De Cruz Andrea Heidi and another appeal [2004] 3 SLR(R) 543 at [155]–[156] (citing Dingle v Associated Newspapers Ltd [1961] 2 QB 162 at 188–189 and Wong Jin Fah v L & M Prestressing Pte Ltd [2001] 3 SLR(R) 1 at [92]), where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. In regard to contribution, the guidance provided in Cheng William v Allister Lim & Thrumurgan and another and another appeal [2015] 3 SLR 201 (“Cheng William”) is instructive. As the Court of Appeal held at [45] of Cheng William, in “determining each party’s contribution, both causative responsibility and blameworthiness have to be considered”. The Court of Appeal explained at [46] that the “term ‘blameworthiness’ is broad and it gives the court the flexibility to take into account a wide range of conduct to arrive at a just and equitable result in a myriad of situations”.
[73] The law on vicarious liability is also well-established. As the Court of Appeal explained in Ng Huat Seng and another v Munib Mohammad Madni and another [2017] 2 SLR 1074 at [42] and [44], the court applies a two-stage test to ascertain if vicarious liability ought to be imposed on a defendant for the negligence of a primary tortfeasor. Both limbs of the test must be satisfied:
(a) Firstly, the relationship between the primary tortfeasor and defendant must be a relationship of sufficient closeness such as would make it fair, just and reasonable to impose liability on the defendant for the tortious acts of the primary tortfeasor.
(b) Secondly, there must be sufficient connection between the relationship between the defendant and the primary tortfeasor on the one hand, and the commission of the tort on the other. A question to ask is whether the relationship created or significantly enhanced the risk of the tort being committed.
Decision
[74] In my judgment, the first defendant, third defendant and fourth defendants are liable under the tort of negligence as primary tortfeasors. The second defendant and the fifth defendants are vicariously liable for the negligence of the first and fourth defendants respectively. In respect of contribution, I apportion liability in the following manner: (a) the first and second defendants 30%; (b) the third defendant 20%; and (c) the fourth and fifth defendants 50%.
[75] As a preliminary point, I note that my findings below are made based on the evidence presented before me. There is no room for the doctrine of res ipsa loquitur to operate because there is ample evidence of how the accident occurred: BNJ at [139]–[140].
Liability of the primary tortfeasors (first, third and fourth defendants)
[76] There is no dispute that the first, third and fourth defendants owe a duty of care to other road users.
[77] I find, with reference to the facts that I have found at [55]–[60] above, that the first defendant was negligent as he had made unreasonably excessive manoeuvres in response to the rightwards movement of the semi-trailer, where the semi-trailer was moving slowly and did not encroach into the path of the Toyota. I hold that the first defendant is unable to avail himself of the “agony of the moment” defence because his actions are not “actions which a reasonably prudent man in his position would take” (Thorben at [103]). To put it in another way, his actions were unreasonable, even after taking the exigencies of the particular situation into account.
[78] I find, with reference to the facts that I have found at [61]–[62] above, that the third defendant is negligent for failing to keep a sufficient following distance behind the Toyota.
[79] I find with reference to the facts that I have found at [36]–[42] above, that the fourth defendant was negligent in driving his semi-trailer in an unreasonably hazardous manner. As the fourth defendant rightly concedes in submissions, the fourth defendant knew that there are road signs along the highway to remind drivers of heavy vehicles to keep to the left lane. Yet, he made the conscious decision to pull out of the left lane of traffic to avoid congestion. The fourth defendant also rightly concedes that he had allowed his trailer to move rightwards (though without encroachment into the path of travel of the Toyota), which fell short of the standard of care expected of him particularly bearing in mind his earlier decision to move into the right lane of traffic. On a crowded highway with no lane markings at that point, it was incumbent on the fourth defendant, as a driver of a heavy vehicle, to exercise reasonably good and prudent control of his vehicle and drive straight.
Vicarious liability of second and fifth defendants
[80] The fifth defendant admits that it is the employer of the fourth defendant and that it is the owner of the semi-trailer, that the fourth defendant was driving the semi-trailer in the course of employment, and that the fifth defendant is vicariously liable for the fourth defendant’s actions/omissions. I so find.
[81] In relation to the second defendant, the plaintiff pleaded that the first defendant drove the Toyota as servant/agent of the second defendant, such that the second defendant is vicariously liable for the negligence of the first defendant. There is no denial of this pleading from the second defendant because he did not enter an appearance. Ms Fung’s evidence (see [5] above) indicates that the Toyota was a hired vehicle, and the first defendant was the hired driver. She also gave unrebutted evidence that the second defendant was the owner of the Toyota. She testified that she paid the trip fare to the owner of the Toyota and not the first defendant. She also testified that her relationship with the first and second defendants was a business relationship in which she was the hirer of the Toyota on the day of the accident. This is an area where the adverse inference can be usefully deployed – there is evidence to support an inference that the first defendant drove the Toyota as servant/agent of the second defendant, and the second defendant’s unexcused absence from the present proceedings means that he gave no rebuttal to Ms Fung’s evidence where an explanation ought to be given in the light of the evidence. I thus find it more likely than not that the first defendant drove the Toyota as servant/agent of the second defendant and the second defendant is vicariously liable for the first defendant’s negligence.
Apportionment
[82] I first consider causative potency.
[83] As noted above at [67], the experts are agreed that the injuries on Mr Lim are primarily caused by the semi-trailer / Toyota collision due to the intrusion caused by that collision. As noted above at [68], the experts agree that from the intrusion perspective, the semi-trailer / Toyota collision had a 66.6% to 90% contribution to Mr Lim’s injuries, and the Toyota / BMW collision had a 10% to 33.3% contribution. I further note the experts’ view (see [63]) that if the Toyota had passed the semi-trailer safely, the position of the BMW on the highway was such that it was far enough to the right of the highway to pass the semi-trailer successfully. Therefore, I conclude that the negligence of the first and fourth defendants had greater causative potency in relation to Mr Lim’s injuries.
[84] I turn to blameworthiness.
[85] From the evidence, both the third and fourth defendants were flouting safe driving principles. As noted above at [79], the fourth defendant knew that there were road signs reminding drivers of heavy vehicles such as himself to keep left, but he consciously failed to abide by this guidance. The third defendant ought to have known the elementary road traffic safety principle that cars must keep a safe following distance from each other. As conceded by the third defendant, the distance at which the BMW was following the Toyota was insufficient relative to guidelines found in the Malaysia Highway Code.
[86] Taken in the round, it is my decision that:
(a) The fourth defendant’s actions, relative to the actions of the other primary tortfeasors, had high causative potency and a high degree of blameworthiness. I thus hold that the fourth defendant (and the fifth defendant vicariously) 50% liable for the plaintiff’s injuries.
(b) The first defendant’s actions, relative to that of the other primary tortfeasors, had high causative potency in that it was his overreaction (even without encroachment of the semi-trailer into his path) which directly caused the collision between the Toyota and the semi-trailer and which was responsible for the significant intrusion into the Toyota that caused Mr Lim’s injuries. However, this has to be balanced against the fact that the other two primary tortfeasors were found to have flouted general safe driving principles while the first defendant was not found to have done so. I thus hold that the first defendant (and the second defendant vicariously) 30% liable for the plaintiff’s injuries.
(c) The third defendant’s actions, relative to the other primary tortfeasors, had low causative potency. As noted by the experts, the Toyota / BMW collision merely exacerbated Mr Lim’s injuries with a 10% to 33.3% contribution to the injuries. However, he is found to have flouted safe driving principles. I thus hold the third defendant 20% liable for the plaintiff’s injuries.
Damages
Background
Plaintiff’s educational, vocational and social background
[88] Mr Lim was born on 30 November 1979. He was 38 years old at the time of the accident. He is 44 years old today.
[89] Mr Lim married Ms Fung in January 2011. At the time of the accident on 12 February 2018, their two children were 1 year and 4 years of age. According to the patient history record compiled by Dr Ang Lye Poh Aaron (“Dr Aaron Ang”) in the course of his mental capacity review of Mr Lim, Mr Lim and Ms Fung co-own a Housing Development Board flat in Sengkang.
[90] Mr Lim possesses an Honours Degree of Bachelor of Science (Finance) from the National University of Ireland, which was awarded on 2 March 2012. This degree was awarded on the basis of part-time study carried out from Singapore.
[91] On 7 February 2018, barely five days before the accident, Mr Lim commenced employment with the Society for the Aged Sick (“SAS”) as a finance executive with his starting salary set at $3,500 per month. In the light of the accident, Mr Lim was placed on long-term hospitalisation leave on a no-pay basis, and his employment was officially terminated on medical grounds on 1 June 2020. Ms Fung’s evidence is that prior to Mr Lim’s employment with the SAS, he was engaged in doing project work with companies including Sembcorp Design and Construction, Singapore Centre for Chinese, and Changi Cove.
[92] Ms Fung's unrebutted evidence is that prior to the accident, Mr Lim was in excellent health, and had no pre-existing medical conditions.
[93] Mr Lim’s injuries and the changes he suffered therefrom affected his family. Ms Fung gave evidence that she suffered a breakdown as a result of the setbacks in Mr Lim’s recovery journey. She deposed that she felt frustrated, lonely, isolated and increasingly depressed as she struggled with the family, Mr Lim’s care and the family’s financial situation. Starting around May or June 2018, Ms Fung and her son attended therapy sessions with the Psychological Services Unit at AMKFSC Community Services Ltd. Ms Fung saw a parenting counsellor from around 2019 to May 2021. Ms Fung’s evidence is that she is still attending at the Psychological Services Unit and is still working with an organisation on day-to-day issues in caregiving.
Injuries
[94] As a result of the accident, Mr Lim suffered severe injuries. The specific injuries, as disclosed in the various medical reports tendered into evidence, have been summarised in Ms Fung’s AEIC. Broadly, the injuries are as follows:
(a) Head (Structural)
(i) depressed fracture of frontal bone extending to right parietal;
(ii) depressed fracture of temporal bone;
(iii) left frontal, temporal, greater wing of sphenoid fracture;
(iv) base of skull fractures;
(v) marked cerebral oedema;
(vi) large left temporoparietal bleed (6cm x 3cm x 3cm) with extra-axial component and extension into intraventricular haemorrhage;
(vii) temporoparietal subdural and subarachnoid haemorrhage requiring craniectomy and brain herniation;
(viii) left frontotemporoparietal acute subdural haematoma of thickness l cm;
(ix) multiple contusions in left basal ganglia;
(x) contusion in left frontal and temporal lobe requiring contusionectomy (left temporal contusion);
(xi) midline shift to the right by 9mm;
(xii) generalised effacement of cerebral sulci;
(xiii) effacement of basal cisterns;
(xiv) subgleal haematoma over left temporal-parietal region;
(xv) comminuted fracture involving temporal, frontal and crossed midline; and
(xvi) minimal anterior sagittal sinus tear during bone removal.
(b) Head (Cognitive)
(i) Glasgow coma scale E1V1M1 stridor (wheezing) with sPO2 80% under HFM upon arrival at Hospital Sultanah Aminah Johor Bahru;
(ii) global aphasia (both expressive and receptive);
(iii) dysphagia (difficulty swallowing) requiring insertion of percutaneous endoscopic gastrotomy (PEG) tube;
(iv) dysphasia (language disorder) resulting in lack of comprehension skills and incoherent speech; and
(v) inability to manage his personal welfare, property and affairs.
(c) Facial Fractures
(i) left zygomatic complex fracture;
(ii) mandible & wall of maxillary sinus fracture (left LeFort I with split palate);
(iii) bilateral sphenoid sinus; and
(iv) left orbit fractures.
(d) Chest
(i) left hemopneumothorax with subcutaneous emphysema;
(ii) bilateral lung contusion; and
(iii) fractures of 3rd & 4th ribs with pneumomediastinum (presence of air in chest cavity).
(e) Abrasions and Lacerations
(i) jagged laceration wound at left eyelid; and
(ii) multiple facial and chest contusions and abrasions.
(f) Others
(i) blood transfusion of 4 pints of packed cells and 4 units of FFP intraoperatively;
(ii) cerebral resuscitation required in ICU;
(iii) further blood transfusion of 2 pints packed cells and 2 units FFP, 4 units platelets and 6 units cryoprecipitate; and
(iv) admission complicated by possible pulmonary embolism, pneumonia, cellulitis, fever and left common carotid artery pseudoaneurysm.
[95] Mr Lim underwent various medical procedures to address the aforementioned injuries and the consequences therefrom. Mr Lim was warded in various hospitals until 8 May 2019 when he was discharged home.
[96] On 25 April 2018, Mr Lim was attended to by Ms Liew Li Ling Petrina, a principal occupational therapist with the Occupational Therapy Department at Singapore General Hospital. She noted that Mr Lim required assistance with most of his activities of daily living due to decreased motor control of his limbs and impaired cognition.
[97] On 3 August 2018, Mr Lim was attended to by Dr Lim Jia Xu, a doctor with the Department of Neurosurgery at Singapore General Hospital. He noted that Mr Lim had sustained traumatic brain injury, which left Mr Lim unfit to perform complex decision-making due to his inability to speak as well as move his limbs adequately to indicate his thoughts and preferences through pointing or writing.
[98] From 19 February 2018 to 31 August 2018, Mr Lim saw Mr Chen Weixian Joseph (“Mr Chen”), a physiotherapist then working in Singapore General Hospital, for a total of 89 sessions of physiotherapy. Following the physiotherapy sessions, Mr Chen opined that Mr Lim was able to demonstrate some functional improvement and was able to perform sit and stand tasks with moderate assistance.
[100] On 19 March 2021, Mr Lim was attended to by Dr Chua Sui Geok Karen (“Dr Karen Chua”), a senior consultant with the Department of Rehabilitation Medicine at Tan Tock Seng Rehabilitation Centre, Tan Tock Seng Hospital. Dr Karen Chua reported that Mr Lim had strong indicators of very severe traumatic brain injury predicting chronic disability and unemployability. She stated that Mr Lim has plateaued in function and remains cognitively globally impaired with severe deficits in sustained attention and arousal, short-term memory, executive function, emotional regulation and traumatic brain injury-related fatigue. She also opined that it is highly unlikely that Mr Lim will regain independence in mobility, self-care, speech and communication and will require a trained caregiver to care for his physical, mental and emotional needs. Moreover, gainful employment is highly unlikely given the complexity of Mr Lim’s traumatic brain injury-related disabilities. The overall prognosis for further functional or neurological improvement remains poor.
[101] Ms Fung gave evidence that around December 2021, Mr Lim’s behaviour took a turn for the worse. While Mr Lim had recovered well physically, he started engaging in verbal abuse and violence. The violence was sometimes directed towards his children. Ms Fung stated that she had consulted Dr Karen Chua, who increased Mr Lim’s medicine dosage, but this did not help for long. Ms Fung further gave evidence that her children were also emotionally affected by Mr Lim’s behaviour. According to Ms Fung, from October 2022 to January 2023, Mr Lim’s sleep at night became interrupted and he would switch on the lights, television and kitchen appliances and rummage for food. He also absconded from home. In the last two weeks of December 2022, Mr Lim started attending a daycare centre, but Ms Fung’s evidence is that he started falling sick more often, and this included suffering a relapse in asthma and skin issues.
[102] On 21 March 2023, the sixth defendant’s medical expert, Dr Kantha Rasalingam (“Dr Kantha”), assessed Mr Lim for the purpose of preparing a specialist medical report. His opinion is that Mr Lim had recovered considerably from his initial injuries, though he still has residual deficits. Dr Kantha opined that Mr Lim had moderate disability, with no need for assistance in everyday life, and that employment is possible but may require special equipment.
[103] In the lead-up to the trial, various updated medical reports were procured by the plaintiff from Mr Lim’s treating doctors pursuant to a request made by the sixth defendant. The contents of these updated medical reports will be discussed below when each of the heads of claim are analysed.
[104] On 16 August 2023, Mr Lim was admitted for long-term residence in Orange Valley Nursing Home (“Orange Valley”), where he is slated to receive both physiotherapy and occupational therapy.
[105] Dr Kantha subsequently prepared a supplementary expert report dated 30 October 2023. In this supplementary expert report, he referred to a report from one Dr Brian Yeo, who is not called as a witness in this trial. According to Dr Kantha, Dr Brian Yeo was supposed to assist Dr Kantha in a medical re-examination of Mr Lim, and to review updated medical documents concerning Mr Lim provided by Orange Valley. The medical re-examination of Mr Lim did not occur because Mr Lim had contracted shingles during the period when the medical re-examination was to take place. Dr Kantha opined that he agreed with Dr Yeo’s comments that while it may be ideal for Mr Lim to be placed in a nursing home with close supervision, it is also important for Mr Lim to be able to have a continued relationship interacting with his growing children, and this is best achieved either in a daycare setting with appropriate adjustments, or by having trained domestic helpers.
Summary of quantifications (Agreed and Disputed)
[106] In relation to quantum, the third to sixth defendants filed joint closing and reply submissions. The parties have managed to reach agreement on various heads of claim, as follows:
[107] I award these sums stated in [106] as agreed.
[108] The following heads of claim are not agreed, and the parties’ respective quantifications are set out as follows:
[109] I turn to consider the various disputed heads of claim.
Loss of Future Earnings / Loss of Earning Capacity
Parties’ cases
(1) Plaintiff’s case
[110] The plaintiff claims a sum of $1,569,960.03 for loss of future earnings, which takes into account his expected monthly salary, increments, bonuses, annual wage supplement, Central Provident Fund (“CPF”) contributions and deductions for income tax. The plaintiff splits his calculations over three time periods: (a) 2024 to 2040 when Mr Lim would be aged 44 to 60 years; (b) 2041 to 2047 when Mr Lim would be aged 61 to 67 years; and (c) 2048 to 2050 when Mr Lim would be aged 68 to 70 years. For (a), the plaintiff submits that the multiplicand should take into account salary increments of 3% per annum and bonuses of 14% of annual income. For (b), the plaintiff submits that the multiplicand should be reduced by 1/3 to take into account the fact that Mr Lim may taper off his exertions towards employment as he ages. For (c), the plaintiff submits that these would be lost years of income. The plaintiff submits that based on Hauw Soo Hoon et al, Actuarial Tables with Explanatory Notes for use in Personal Injury and Death Claims (Academy Publishing, 2021) (“Singapore Actuarial Tables”), the appropriate multiplier to apply for loss of future earnings is 19.91 years.
[111] The plaintiff submits that Mr Lim was prevented from producing even more evidence of his income due to the incapacity caused by the defendants, and the plaintiff did not deliberately withhold evidence. In relation to the relative lack of supporting documents to show the income earned by Mr Lim from project work that he had apparently undertaken in the past, the plaintiff submits that blame should not be foisted on Ms Fung, given that it is not foreseeable to her that Mr Lim would be injured such that she would need to acquaint herself with the source and location of Mr Lim’s income. The plaintiff submits that Mr Lim had already taken a pay-cut from higher-paying project work to work regular hours at SAS, and was unlikely to take on a lower paying job in the future after SAS. The plaintiff notes that the available documents show that Mr Lim had earned a regular and grossly stable income for six months preceding the accident from September 2017 to February 2018, save that he had switched employment in February 2018. The plaintiff also notes that Mr Lim’s income is supported by national wage statistics. The plaintiff adds that Mr Lim would have needed to provide for his two young children, which makes it unlikely that he would have left his job at SAS. The plaintiff also contends that Ms Koh Lay Ming (“Ms Kate Koh”), the chief operating officer of SAS, has testified that but for the accident, SAS would have continued employing Mr Lim so long as he performed satisfactorily, and that SAS would have done due diligence on Mr Lim before offering him employment. The plaintiff also places reliance on SAS’s records, which contain fairly positive testimonials from Mr Lim’s ex-employers. The plaintiff submits that SAS has given credible evidence that Mr Lim is projected to receive annual wage increments of about 3%, and bonuses of about $37,000 per annum.
(2) Defendants’ case
[112] The defendants submit that there should be no award for loss of future earnings. The defendants’ overarching submission is that the plaintiff’s estimations of Mr Lim’s lost earnings lack any factual basis.
[113] The defendants’ case is that the Singapore Actuarial Tables should be departed from completely in the present case (in relation to the loss of future earnings claim) as the multiplier and multiplicand cannot be reasonably ascertained or applied in this case because of the lack of cogent evidence of Mr Lim’s earnings. The defendants submit that the plaintiff’s entire claim for loss of future earnings rests solely on extrapolation from 3.5 working days of employment with SAS, where Mr Lim was under probation at the time of the accident. The defendants contend that the plaintiff has not provided any satisfactory evidence to prove that Mr Lim would have continued being employed by SAS and would have received annual bonuses and salary increments up until 70 years of age, nor has the plaintiff provided an alternative reasonable multiplicand to support the claim for loss of future earnings.

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Lim Chun Yong (alias Lin Junxiong) (suing through his deputy and litigation representative Fung Wui Mang Janet) v Yap Jeffrey (alias Yap Kean Hui) and others

Laws this judgment relies on

Grounds of decision

Introduction

Liability

Background

Parties’ cases

Plaintiff’s case

Sixth defendant’s case

Third defendant’s case

Fourth and fifth defendants’ case

Issues to be determined

(c) Did the semi-trailer move to its right and encroach into the path of the Toyota?

(e) What were the movements of the Toyota around the time of its collision with the semi-trailer?

(g) What was the temporal sequence of the collisions between the semi-trailer, the Toyota and the BMW?

(h) To what extent did the various impacts cause or contribute to the injuries on Mr Lim?

(a) Is negligence established as against the various defendant tortfeasors (ie, excluding the sixth defendant)?

(i) Is the doctrine of res ipsa loquitur applicable?

(ii) Is the agony of the moment defence applicable?

(b) Are any of the defendants vicariously liable for the acts and omissions of the primary tortfeasors?

(c) To what extent is each defendant liable to contribute to the damages to be awarded for the accident?

Analysis of the Facts

Position of semi-trailer on two-lane highway

Whether semi-trailer was moving and its speed

Whether semi-trailer encroached into Toyota’s path

Excessive speed or reckless driving of Toyota around the time of collision

Movements of Toyota around the time of collision

Speed, following distance and manoeuvres of BMW

Sequence of collisions

Extent of cause / contribution of the collisions to Mr Lim’s injuries

The law

Decision

Liability of the primary tortfeasors (first, third and fourth defendants)

Vicarious liability of second and fifth defendants

Apportionment

Damages

Background

Plaintiff’s educational, vocational and social background

Injuries

(a) Head (Structural)

(b) Head (Cognitive)

(c) Facial Fractures

(d) Chest

(e) Abrasions and Lacerations

(f) Others

Summary of quantifications (Agreed and Disputed)

Loss of Future Earnings / Loss of Earning Capacity

Parties’ cases

(1) Plaintiff’s case

(2) Defendants’ case