Soh Lay Lian Cherlyn v Kok Mui Eng

Lai Siu Chiu SJ:

[1] This was an appeal from the decision of a District Court (“the DC”) in a personal injuries claim arising from a traffic accident that took place on 5 February 2010 (“the Accident”) involving motor vehicles driven by Kok Mui Eng (“the Plaintiff”) and Cherlyn Soh Lay Lian (“the Defendant”). At the conclusion of the trial on 16 September 2014, the court below awarded interlocutory judgment to the Plaintiff at 10% of the damages to be assessed.

[3] The Accident occurred at about 12.15pm–12.25pm at the traffic light controlled junction of Havelock Road, Clemenceau Avenue and Upper Cross Street (“the Junction”). The Plaintiff was then at the wheel of vehicle no SFU9453K (“the Plaintiff’s vehicle”) while the Defendant was driving vehicle no SJT5369E (“the Defendant’s vehicle”). When the green turning arrow came on in the Defendant’s favour, the Defendant’s vehicle made a right turn from Upper Cross Street into Clemenceau Avenue. At the same time, the Plaintiff’s car coming from Havelock Road in the opposite direction (travelling in the extreme left lane) crossed the Junction with the result that the Defendant’s vehicle collided into the Plaintiff’s car on its right side.

[4] On 5 January 2011, the Plaintiff pleaded guilty to a charge of inconsiderate driving under s 65(a) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the RTA”) and was fined $800.00 as well as disqualified from driving for two months.

[5] On 21 March 2011, the Defendant commenced Suit No 189 of 2011 (“the Defendant’s suit”) against the Plaintiff claiming damages for personal injuries and loss arising out of the Accident. Following negotiations between the parties’ motor insurers (who had conduct of the Defendant’s suit), the proceedings were settled between the parties on the basis of 90%-10% liability on the part of the Plaintiff and Defendant respectively. On 14 February 2012, consent interlocutory judgment (“the Consent Judgment”) was entered in favour of the Defendant on the basis of the Plaintiff bearing 90% liability for the Accident. On 1 July 2013, the Defendant obtained final judgment against the Plaintiff by consent in the global sum of $82,000; there was no apportionment of liability for the Accident in the final judgment.

[6] On 31 August 2012, the Plaintiff commenced DC Suit No 2484 of 2012 (“the Plaintiff’s suit”) against the Defendant seeking compensation for injuries sustained by the Plaintiff arising out of the Accident. The Plaintiff did not, in her statement of claim refer to the Consent Judgment.

[7] The Plaintiff’s suit was bifurcated and trial on liability took place on 26 June 2014. At the conclusion of the trial, the district judge felt he was bound by the High Court’s decision in Jaidin’s case. He opined that the Consent Judgment in the Defendant’s suit operated to bind the Defendant (as the Plaintiff had submitted) and the Defendant was therefore held to be 10% liable for the Accident.

[8] The issues this court had to determine at the Appeal hearing were:

(a) whether the principles in Jaidin’s case apply to the Plaintiff’s suit;

(b) whether res judicata (as the court below held) precludes the Defendant from denying she was 10% liable for the Accident.

[9] Counsel for the Defendant had submitted to this court that:

(a) Jaidin’s case was wrongly decided;

(b) Jaidin’s case was distinguishable from the facts of this case; and

(c) if res judicata was indeed to apply, then the Plaintiff’s claim should no longer be sustainable once final judgment had been entered in the Defendant’s suit.

[10] At this juncture, it would be appropriate to refer to Jaidin’s case. In that case, the plaintiff was a pillion rider on a motorcycle which collided with a car. Both the motorcyclist and pillion rider were injured. The pillion rider claimed damages from both the motorcyclist and the driver for injuries sustained from the accident. However, the motorcyclist had earlier filed a claim against the driver in the District Court in respect of the same accident; that claim proceeded for court dispute resolution where the settlement judge indicated preliminary liability apportionment to be 80% as against the driver. The issue in Jaidin’s case, therefore, was whether the consent judgment between the driver and motorcyclist was res judicata or whether apportionment could be determined afresh. At [4], the High Court held:

[11] As stated earlier at [7], the court below held it was bound by the decision in Jaidin’s case and awarded judgment at 10% liability in favour of the Plaintiff against the Defendant, on the basis res judicata applied to preclude the Defendant from raising any fresh defences to defeat the Plaintiff’s suit. As stated at [2], this court declined to follow Jaidin’s case. This is because two of the four requirements in Lee Tat to found issue estoppel were missing—there was neither a final and conclusive judgment on the merits nor identity of parties. The pillion-rider/plaintiff in Jaidin’s case was not involved in, and was not a party to, the suit or the settlement agreement between the motorcyclist and the car driver.

[12] The court in Jaidin’s case had failed to give due regard to the Court of Appeal’s pronouncement in Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2009] 1 SLR(R) 875 on what constitutes issue estoppel. The appellate court there said (at [82]);

[13] It is clear from the facts here that the Defendant’s suit was not concluded with a judgment that was made on the merits of the case. That suit never proceeded to trial as the counsel for the parties’ insurers settled the claim by negotiation, including the consent final judgment for $82,000 where no mention was made of any apportionment of liability. As counsel for the Defendant pointed out in his submissions, there are any number of reasons why insurers for motor accident claims choose to settle claims of and against their insured, rather than proceed to trial. This was confirmed by the testimony of counsel for the Plaintiff.

[14] In the court below, the lawyers who acted in the Defendant’s suit namely Teo Weng Kie (“Teo”) and Cosmas Stephen Gomez (“Cosmas”) were witnesses. Teo testified for the Plaintiff while Cosmas was the Defendant’s witness. (Teo had filed a defence for the Plaintiff in the Defendant’s suit wherein she denied liability for the Accident). It was clear from the following extracts from Teo’s cross-examination that the Plaintiff’s 90% liability was not meant to bind her subsequent claims:

[15] In his evidence-in-chief, Cosmas confirmed that the consent (interlocutory) judgment was entered into on a “without prejudice” basis with no admission of liability on the part of the Defendant (who was then the Plaintiff), as can be seen from the following extract of the notes of evidence:

[16] Not only did the evidence of counsel who acted for both parties in the Defendant’s suit rebut the finding that there was issue estoppel, it was also the finding of the court below that the Plaintiff, but not the Defendant, was negligent. This can be seen from [45] to [46] of the grounds of decision where the judge said:

[17] Despite the fact he found the Plaintiff had beaten the red light and the Defendant had the right of way (because the green turning light was in her favour), the court below proceeded (at [51]) to find that one of the reasons that the Defendant was contributorily negligent was that, on a balance of probabilities, she had sped into the Junction right after the green right turning arrow came on. The judge said (at [54]):

[18] The DC’s above findings overlooked a crucial fact—the Defendant had successfully crossed three lanes of Havelock Road before her vehicle collided into the Plaintiff’s vehicle travelling in the extreme left (fourth) lane. That being the case, would any reasonable motorist in the position of the Defendant have expected an on-coming vehicle to still beat the red light? Surely not. The fact that the Defendant managed to cross three out of four lanes at that very wide junction would also mean that the red light for Havelock Road traffic must have come on for some time; yet the Plaintiff still beat the red light.

[19] The DC was wrong to have attributed contributory negligence even at 10% to the Defendant. Why could she not cross the last lane of the Junction even at speed when the green turning arrow had been in her favour for the previous three lanes which she crossed without incident? Even a reasonably cautious motorist would not have expected the Plaintiff to beat the red light in those circumstances which she did.

[20] Counsel for the Defendant had referred to Ong Bee Nah v Won Siew Wan (Yong Tian Choy, third party) [2005] 2 SLR (R) 455. The facts in that case were similar to our case. The third party was driving the vehicle in which the plaintiff (his wife) was the front seat passenger; it collided with the defendant’s car at a junction. The third party had been driving straight along the road while the defendant was in the process of making a right turn. The third party admitted he had his car radio turned on and was conversing with the plaintiff at the material time. The defendant seized upon the third party’s admission to argue that the third party had been distracted from his driving in general and had filed to keep a lookout for the defendant’s car in particular.

[21] The court awarded judgment to the plaintiff and dismissed the defendant’s action against the third party. The court stated (at [92]–[95], [100], [103] and [104]) that there is no general duty on a driver to slow down automatically, sound the horn or flash the headlights of his vehicle when approaching a traffic junction if there was no stop sign or where the traffic lights were in his or her favour. Imposing such a blanket rule would be impractical and inefficient where there was otherwise no reasonable apprehension of danger. What people had to guard against were reasonable probabilities, not fantastic possibilities. In the third party’s situation, there was no reasonable probability of any danger occurring such that the third party should have acted to guard against it by inter alia slowing down his vehicle. Slowing down one’s vehicle for no apparent reason would not have fulfilled any practical purpose and might have also inconvenienced other vehicles following behind.

[22] The Plaintiff had in the Defendant’s suit similarly pleaded that the Defendant had failed to slow down or sound her horn or flash her headlights when she proceeded into the Junction. Such defences were completely unmeritorious in the light of my observations in [18] and [19]. As the Accident took place in broad daylight (at noon), was there a need for the Defendant to flash her vehicle’s headlights? Certainly not.

[23] I was of the view that the court below erred in its finding that the Defendant was partly responsible for the Accident. My view is reinforced by the fact that the Plaintiff was charged with, and pleaded guilty to, inconsiderate driving (see [4]) but the police took no action against the Defendant over the Accident.

[24] Moreover, in Carolyn Woo et al, Motor Accident Guide: A guide on the assessment of liability in motor accident cases (Mighty Minds Publishing, 2014) (“the Guide”), issued by the State Courts, there is a scenario (No 7, at pp 34–35) which governs (controlled) cross-junctions. In situations where the driver of a vehicle is turning right at a cross-junction (as the Defendant’s vehicle did [referred to as X in the scenario] with the green light in her favour and the red light showing against the Plaintiff’s vehicle (referred to as Y), the Guide stated driver Y would bear 100% liability for the accident for the following reason:

[25] It is a fundamental principle of the law of torts that unless there is a finding of negligence and causation, there can be no liability on the part of the tortfeasor. There was no evidence in the court below (apart from the court’s surmise that she was speeding) that the Defendant caused or partly contributed to the Accident in any way.