Thorben Langvad Linneberg v Leong Mei Kuen

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

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

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

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

[4] In brief, the accident took place on Clemenceau Avenue North in the direction towards Cairnhill Road (“the Road”). Clemenceau Avenue North is a dual carriageway with two lanes on each side, with traffic moving in one direction towards Cairnhill Road and on the other towards Newton Circus. It is divided by a continuous white line. Perpendicular to Clemenceau Avenue North and on the side of traffic heading towards Newton Circus is Peck Hay Road. Clemenceau Avenue North and Peck Hay Road form a T-junction uncontrolled by any traffic light.

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

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

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

[8] The Respondent’s case was as follows:

(a) The credibility of the parties was a very relevant consideration in the present case;

(b) The Appellant’s evidence before the Judge was conflicted and unclear;

(c) The Judge had the opportunity to observe the demeanour of the witnesses and assess, first-hand, the veracity and quality of their evidence, and her judgment on the credibility of the Appellant, based on both the spoken evidence recorded in court as well as his behaviour and performance on the stand, should not be varied by this court;

(d) The Appellant’s evidence was contrary to the objective evidence;

(e) The Appellant contributed to the accident; and

(f) The Appellant had failed to demonstrate that the Judge’s decision was in any way contrary to the fabric of the evidence presented before the Judge, or that the Judge had taken extraneous factors into consideration (thus rendering her exercise of discretion erroneous).

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

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

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

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

[13] First, we address the nature of appellate intervention in relation to a witness’ credibility. In the Singapore High Court decision of Public Prosecutor v Wang Ziyi Able [2008] 2 SLR (R) 61, the court set out the two situations where an appellate court has access to the same material as the trial judge and so is in as good a position as the trial court to assess the veracity of the witness’ evidence. The two situations are where the assessment of the witness’ credibility is based on inferences drawn from the internal consistency in the content of the witness’ testimony (“the Category 1 Situation”) or the external consistency between the content of the witness’ evidence and the extrinsic evidence (“the Category 2 Situation”).

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

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

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

[17] The Judge found, first, that the Appellant had ample opportunity to provide a full account of the accident to the police but failed to do so. The lack of details in the police report was contrasted with the detailed affidavit he had filed. In the Judge’s words (see the GD at [13]–[14]):

[18] In a similar vein, the Judge had said the following in her oral grounds:

[19] The Judge decided, on the other hand, that the Respondent was candid because her testimony in court was consistent with her testimony in her police report. Even though the Respondent also provided details that were not in her police report, the Judge appeared to be more accepting toward her evidence. For example, the Respondent testified in court that she had turned on the hazard lights of the minibus, notwithstanding that she did not state the same in her police report. Similarly, she did not state in her police report that she had checked her blind spot, but testified that she did in her Affidavit of Evidence-in-Chief (“AEIC”) and in court.

[20] As the Judge had compared the Appellant’s evidence in court with the documentary evidence, ie, the police report, this fell within the Category 2 Situation (see above at [13]). In addition, the Judge also appeared to compare the internal consistency of the Appellant’s evidence (from her use of terms such as “he first claimed”, “when further pressed”, and “he subsequently added”). This fell within the Category 1 Situation.

[21] With respect, we did not agree that the Appellant’s testimony was far from satisfactory. Having had the benefit of perusing the transcripts of proceedings in the court below, it was evident the Appellant was consistent in both the Category 1 and 2 Situations. He was candid in his evidence. What emerged under cross-examination and re-examination were the following answers, which remained constant throughout the Appellant’s testimony:

(a) The “Report of a Traffic Accident” (“Police Report”) lacked details;

(b) The Police Report was not typed up by the Appellant;

(c) The Appellant was answering questions posed to him;

(d) A young police officer came to the hospital a couple of times. When the doctor was attending to the Appellant the officer stated that he would return in a few days. It took the officer a month to obtain the interview;

(e) The contents of the Police Report were given in one sitting, in about 20 minutes. The actual time taken for the officer to ask for information regarding the accident, leaving aside the questions relating to personal particulars, was between 10 and 15 minutes;

(f) The details such as the speed and the relative distances between the vehicles and the attempts to use the brakes were important details;

(g) These details should have been in the Police Report, but were not reflected therein; because the police officers did not ask the Appellant the relevant questions, and the Appellant, with two broken arms, could not write and he just answered the questions as best he could; and

(h) The Appellant could remember the details as if the accident happened yesterday.

[22] It was difficult to see where the Appellant had changed his position. His evidence was consistent in both the Category 1 and Category 2 senses (see above at [13]). He did not prevaricate. There was a consistent explanation as to the lack of details in his police report. He explained the lack of details by stating that he had only responded to questions that were asked. If he was not asked the proper questions he would not have had to exhibit his recollection of the accident. As a result of the accident, he was unable to write and could only answer questions orally.

[23] The Judge was also, with respect, incorrect in stating that the Appellant explained that the lack of details was due to him being interviewed intermittently over a few weeks (see the GD at [13]). The Appellant’s evidence was that the police attempted to interview him several times, but would adjourn the interview as the Appellant was with his doctor when the police visited. The police finally interviewed him in one sitting.

[24] In the circumstances, we respectfully disagreed with the Judge’s finding with regard to the Appellant’s credibility.

[25] The Judge answered this particular issue in the affirmative, as follows (see the GD at [26]):

[26] We should add that during oral submissions, the Respondent’s counsel, Mr Patrick Yeo (“Mr Yeo”), could not point to any objective evidence that showed that the Appellant was travelling at an excessive speed.

[27] We turn now to analyse the reasons the Judge gave in arriving at her conclusion that the Appellant had in fact been travelling at an excessive speed.

[28] The salient part of the GD reads as follows (see the GD at [16]–[18]):

“Totally wrecked”

[29] The relevant photographs were referred to us again during oral submissions. We should first state that the photocopies of the photographs in the bundles were not of the quality we expected from counsel. The photographs were grainy and difficult to make out. Moreover, neither counsel had photographs of the damage caused to the minibus. All we were referred to was the Traffic Police’s Vehicle Damage Report. This report indicated that the entire front of the minibus was damaged. This was a curious description, given that (a) the Respondent’s recounting of the accident involved a collision on the right side of the minibus; and (b) the Traffic Police’s Sketch Plan (“Sketch Plan”) of the accident appeared to show that the motorcycle had collided into the right side of the minibus.

[30] Despite repeated questioning from the bench, neither side was able to provide a satisfactory answer as to why the minibus was damaged from the front. There was also no photographic evidence of the same.

[31] It is a good point of practice to have the originals of crucial photographs available for submission if required. It is also helpful, if at all possible, for parties to spend more effort in producing better reproductions of photographs. After all, these will be the materials which parties would wish the court to consider in assessing their respective cases.

[32] Fortunately, during oral submissions, we had the benefit of considering better quality photographs of the damage to the motorcycle. We could not, in this regard, agree with any description of the motorcycle being “totally wrecked”.

[33] The Judge was of the view that the damage was indicative of travelling at an excessive speed. In our view, however, the evidence with regard to damage was equivocal. We do not disagree that a motorcycle travelling at an excessive speed, crashing head first into a minibus, could result in severe damage to the front of the motorcycle. However, it is also clear that in view of the size and structure of a motorcycle, it is possible that a motorcycle travelling at an acceptable speed might also suffer severe damage if a head on collision occurred, especially if there was insufficient time on the motorcyclist’s part to apply the brakes. Indeed, such a scenario could have arisen in this case if the motorcycle was very close to the minibus when the minibus moved in front of the motorcycle. In such a scenario, the motorcycle would still have crashed into the minibus despite the motorcyclist having applied the brakes when he was travelling at a speed which was not excessive. The analogy can be made to the hypothetical situation set out in the Singapore High Court decision of Ong Bee Nah v Won Siew Wan [2005] 2 SLR(R) 455 (“Ong Bee Nah”), where the court was of the view that a driver would not be negligent in the scenario where a child had suddenly run across the road and was hit by the driver’s vehicle, if the child was in fact too close to the vehicle.

[34] We would here again point to the dearth of further relevant evidence that would have allowed the court to better assess the present factual matrix. There was no expert evidence led to demonstrate that damage of the sort shown in the photographs could only be caused by a motorcycle travelling above 50kmh. With regard to road traffic accident claims, the need for a practitioner to gather as much factual based evidence as possible in order to reduce the litigation risk to his client was emphasised in a recent article (see Jonathan Aspinall, “Knocked down twice” New Law Journal, 22 June 2012, p 826) (“Aspinall”)). In the article, the learned author states, with reference to the recent English Court of Appeal decision of Rehill v Rider Holdings Limited [2012] EWCA Civ 628, as follows (see Aspinall at p 827):

[35] We need only add that each case turns on its own facts, and, while we have stated that in this particular case expert evidence would have been helpful, it might not always be the case that expert evidence will assist the court (see, for example, the observations of the Singapore High Court in Khoo Bee Keong v Ang Chun Hong [2005] SGHC 128 at [68]–[87]). The key question is whether the evidence concerned provides more clarity for the court, especially in situations where the evidence of the witnesses are vastly different and where the evidence is based on a litigant’s recollection of what is an extremely traumatic incident.

[36] Mr Yeo argued that the Appellant’s motorcycle, which possessed such a “high capability braking system”, should have had no difficulty in coming to a safe stop. We deal with the advanced braking system below (at [57]–[65]). We confine our analysis here to the argument that the Appellant had sufficient time to react. Mr Yeo argued that the Appellant, travelling at 50kmh, had sufficient time to react even as he saw the minibus turning from 15 metres away. The Appellant’s counsel, Mr Ramasamy Chettiar (“Mr Chettiar”), referred us to the Speed and Stopping Table in the Highway Code (Cap 276, R 11, 1990 Rev Ed) (“Speed and Stopping Table”). At 50kmh, a vehicle would have travelled an additional 9 metres simply during the time the driver took to react and apply the brakes. The braking distance (including reaction time) for good brakes on a dry surface was 23 metres. In the same table, it stated the following:

[37] Mr Yeo argued that this table was produced in 1975 and that it should only be applicable to a vehicle that weighed more than a motorcycle. Again, he did not cite authorities or point to any evidence that was before this court to show that this was the case. He did attempt, at the hearing, to introduce evidence in the form of an Internet article, to provide us with braking distances relating to motorcycles, but we disallowed it.

[38] Nevertheless, even assuming, arguendo, that technology has improved brake performance and that motorcycles could come to a stop more quickly than cars, we were still left with the issue of human reaction time. Mr Yeo could not provide us with any evidence that humans react faster today than they did when the Speed and Stopping Table was produced.

[39] What was also lacking was evidence as to the distance between where the minibus had stopped, and the turn into Peck Hay Road. The Sketch Plan did not indicate this. Such evidence would have allowed the court to determine whether the minibus made the turn immediately from its stationary position, or whether the minibus had gradually moved into a position to make the turn, which (in turn) would have allowed the court to assess whether the Appellant had sufficient time to avoid the accident. Mr Yeo argued before us that the Respondent did not move rapidly across the lanes. He offered us photographs of the location of the accident. Mr Yeo attempted to argue that, based on the photographs, it was not rapid movement across the lanes, as the distance between the minibus’s stationary position and the junction was a distance of several car lengths. As we observed at the hearing, Mr Yeo’s explanation was not necessarily correct, based on the photographs, and such evidence should have been led at the trial below. There was no point in this court indulging in a speculative exercise.

[40] Deficiencies in arguments and evidence aside, the facts demonstrated that the collision was virtually inevitable. Even if the Appellant had spotted the minibus moving off while he was 15 metres away, could he have expected the minibus to have cut across the lane to turn into Peck Hay Road? The Appellant’s testimony revealed, in fact, that he did not expect that the minibus would turn into Peck Hay Road:

[41] Even though the Appellant had seen the minibus moving off from a distance of 15 metres away, it was only at a closer distance that he had realised that the minibus was turning into Peck Hay Road. This essentially gave him fewer than 15 metres to react.

[42] If the Appellant had been travelling at 50kmh, he would have been travelling at 13.88 metres per second. If reaction time, according to the Speed and Stopping Table, resulted in 9 metres of road being covered before one could even apply the brakes, there was, in effect, no time to avoid the collision. It should also be recalled that the average driver needs at least three quarters of a second to react to a hazard and get his or her foot to the brake pedal.

[43] Mr Yeo argued that the Appellant was an experienced motorcyclist but we were not able to see how even an experienced motorcyclist might have avoided the collision.

[44] For all the reasons stated above, we were, with respect, unable to agree with the Judge when she considered it unlikely that the Appellant was unable to stop even if he was travelling at 50kmh. In addition, unlike the Judge, we could not see the inconsistencies between the Appellant’s version of what transpired and the evidence that was before the court.

[45] Mr Yeo argued that (a) the Appellant, having seen the minibus from 50 metres away, should have slowed down; and (b) the Appellant’s failure to keep a proper lookout and failure to slow down constituted negligence on his part.

[46] With regard to the latter argument, we note that the Judge did not make any finding as to whether there was a failure on the Appellant’s part to keep a proper lookout, despite this allegation being addressed in the pleadings. Furthermore, there was no appeal specifically on this point.

[47] With regard to the former argument, we were of the view that, in the circumstances, there was no need for the Appellant to slow down. This point, however, is directly related to the relevant standard of care of a motorist, an issue to which we now turn.

[48] In Charlesworth & Percy on Negligence (Christopher Walton gen ed) (Sweet & Maxwell, 12th Ed, 2010) (“Charlesworth & Percy”), it was observed as follows (at para 4-54):

[49] In the present case, the possibility of the danger emerging was not reasonably apparent. Indeed, to our minds, it was “only a mere possibility which would never occur to the mind of a reasonable man” (see [51] below) that the minibus at the side of the road would attempt to move across two lanes and turn into Peck Hay Road. Such negligence is not common and neither common sense nor experience would have taught the Appellant that the Respondent was likely to act in the way she did (see London Passenger Transport Board v Upson and Another [1949] AC 155, per Lord du Parcq).

[50] More pertinently, the Singapore courts have also considered the appropriate standard of care in road traffic accidents. For example, in the decision of SBS Transit Ltd v Stafford Rosemary Anne Jane (administratrix of the estate of Anthony John Stafford, deceased) [2007] 2 SLR(R) 211 (“Stafford”), this court observed as follows (at [32]–[34]):

[51] And, in the Singapore High Court decision of Ong Bee Nah, it was observed thus (at [92]–[100], [109]–[110]):

[52] Stafford and Ong Bee Nah both make clear that cases are decided based on the particular set of facts and circumstances before the court concerned. In the present case, the road in question was relatively straight. On the day of the accident, the road conditions were good; the flow of traffic on Clemenceau Avenue North was light, the road surface was dry, the weather was fine and visibility was clear. While the road was not an expressway, it was not a road in a busy housing estate. A reasonable motorist under the circumstances was therefore entitled to assume that other motorists would not unexpectedly and blatantly flout traffic rules and seek to traverse two lanes to make a right turn.

[53] More specifically, we considered the possible scenarios in the present factual matrix. First, the minibus could have attempted to make a U-turn (“Scenario 1”). Second, the minibus could have attempted to make a right turn (“Scenario 2”). Third, the minibus could have moved off and filtered into the right lane (ie, into the same lane as the motorcycle) (“Scenario 3”). Fourth, the minibus could have moved off and travelled in the left lane (“Scenario 4”). In our view, it was not unreasonable for the Appellant to have expected that Scenario 4 would come to pass. This is especially so, bearing in mind the fact that the Judge never made a finding in the GD as to whether or not the hazard lights of the minibus were in operation while the minibus was stationary. The Appellant testified that he was of the view that the minibus was parked with no one in it. It is, to borrow the words of Lord Dunedin in the House of Lords decision of Fardon v Harcourt-Rivington (1932) 146 LT 391 (at 392), a “fantastic possibility” (see also above at [51]) for a parked vehicle to move, and accordingly the Appellant was not bound to guard against this.

[54] There is one remaining issue that might be dealt with briefly: One might wonder if there is a possible contradiction between our observations and those in Stafford, where the court held, as follows (at [34]; also quoted above at [50]):

[55] In our view, there is, in fact, no contradiction. In the present case, had the reasonable possibility (“Scenario 4”) occurred, the Appellant would not have had to stop or avoid any collision. It must be noted that the observation quoted in the preceding paragraph is still subject to the threshold of reasonable possibilities, as evidenced by the first sentence in that particular paragraph, which reads as follows:

[56] Accordingly, the Appellant was not, in our view, negligent in not braking immediately after seeing the minibus stationary at the side of the Road. We turn now to address the issue of brake marks.

[57] The Judge had stated, as follows (see the GD at [17]):

[58] On this point, we again disagreed with the Judge. The Judge appeared to have found that, if there had been hard braking as claimed by the Appellant, there would invariably have been brake marks left on the road. There is, with respect, no support for such a finding.

[59] First, no expert evidence was led on this point. Mr Yeo, in oral submissions before this court, stated that he believed that fishtailing should have left indications on the road. Suffice to say, the duty was on him to point us to evidence which supported this assertion and none was forthcoming.

[60] Second, the Judge described the Appellant’s motorcycle as a high performance sports machine with an “advanced braking system” (see the GD at [17]). There is, with respect, some level of ambiguity with regard to this finding. It was unclear as to whether such an advanced braking system was taken to include what is popularly known as “Anti-Lock Braking System” (“ABS”). No evidence, expert or otherwise, was led on:

(a) what features a motorcycle with an “advanced braking system” had;

(b) whether the motorcycle was equipped with ABS;

(c) whether the presence of ABS would have played a role in the motorcycle not leaving brake marks along the road despite its brakes being heavily applied.

[61] In so far as the last question is concerned, there have been cases that have indicated that the presence of ABS would result in an absence of brake marks. In State v Balliette 2011 WI 79 (Wis 2011), for example, the Supreme Court of Wisconsin heard the following argument:

[62] In State v Kinney, 1999 Ohio App LEXIS 4154 (Ohio Ct App, Madison County Sept 7, 1999), the evidence before the Court of Appeals of Ohio, Twelfth Appellate District, Madison County, was as follows:

[63] In Smith v. Myles 580 So 2d 1088 (La App 4 Cir 1991), the Court of Appeal of Louisiana, Fourth Circuit, also had evidence before it, as follows:

[64] In R v Cook [2004] EWCA Crim 1177, the English Court of Appeal (Criminal Division) stated, as follows:

[65] We cite these cases solely for the purpose of highlighting that a more thorough investigation of the facts might have shed more light and allowed this court to obtain a clearer picture of what precisely had happened in this case. No evidence was led as to the type of tyres used on the motorcycle, the amount of wear on the tyres, the weight of the motorcycle, the angle at which the tyres met the road, as well as the correlation (if any) between “fish tailing” and brake marks. Without these significant pieces of information, we were not prepared to indulge in speculation and make findings based on what to us was essentially evidence that was equivocal. In light of our analysis, we did not agree with the Judge’s finding relating to the lack of brake marks.

[66] The Judge had also observed as follows (see the GD at [18]):

[67] With respect, this paragraph poses a problem for several reasons. First, the mere possibility of the Appellant’s motorcycle being in the Respondent’s blind spot is neither here nor there. The question remains whether the Judge found this as a fact. Second, there is an apparent a contradiction in the Judge’s reasoning. The Judge stated that the Appellant’s motorcycle was in the Respondent’s blind spot, but proceeded to state that the Respondent did her checks. Would the checks not have alerted the Respondent to the fact that the Appellant’s motorcycle was in her blind spot? However, this apparent contradiction might be resolved by interpreting the use of the word “together” by the Judge to mean that, because of the speed the Appellant was travelling at, the Respondent could not have seen him even if she had checked the minibus’ mirrors and her blind spot. In other words, the speed of the Appellant’s motorcycle was such that, at the moment the Respondent performed her checks, the Appellant’s motorcycle was nowhere to be seen, and in the time between the Respondent’s checks and the actual turn, the Appellant’s motorcycle appeared and crashed into the minibus. The problem we had with this analysis was that, based on a map taken from the street directory that was submitted in evidence, Clemenceau Avenue North is a relatively straight road. This would have meant that visibility was increased in terms of distance. For the Appellant’s motorcycle to have appeared between the time the Respondent performed her checks and her moving off, the Appellant would have had to have been travelling at an extremely high speed. Although this was theoretically possible, there was little evidence to support such a claim. Accordingly, we did not, with respect, agree with the Judge’s reasoning (at [18] of the GD).

[68] The Judge found that the Appellant’s manoeuvre greatly increased the risk of collision. The Judge found that it was “clearly” the more risky manoeuvre. The Judge observed, as follows (see the GD at [27]):

[69] Before us, Mr Yeo described the action taken by the Appellant to overtake the minibus as “foolhardy”. We did not agree that the Appellant’s actions were foolhardy, and, unlike the Judge, we did not think that they amounted to negligence. Let us elaborate.

“Highly dangerous evasive manoeuvre”

[70] First, it is clear that all three options open to the Appellant (viz, braking hard, swerving to the left, and swerving to the right) could be considered “highly dangerous”.

[71] In so far as the first option was concerned, the Appellant explained in re-examination why he did not simply apply the brakes, as follows:

[72] Each option embodied the potential of collision with the minibus. In fact, it might be argued that the option to turn left was the most dangerous amongst the three. The Appellant’s evidence on this in cross-examination was as follows:

[73] In re-examination, the Appellant’s evidence was as follows:

[74] We pause here to cite a passage from Charlesworth & Percy (at para 4-06):

[75] In the present case, it was abundantly clear that the need to take the risk was caused by the Respondent’s negligence. We do not think that it could be seriously argued that a reasonably prudent person in the Appellant’s position would not have acted as he did in seeking to avoid the collision.

“[P]laintiff ought not to be held to the high standard of having to choose the optimum solution”

[76] Despite the Judge’s express words, it appeared to us that the Appellant was being held to the high standard of having to choose the optimum solution (see the GD at [19]):

[77] The Judge’s view on how the Appellant should have dealt with the situation was, in our view, a counsel of perfection. In the English Court of Appeal decision of Whiteford v Kubas UAB (A Company) [2012] EWCA Civ 1017, Richards LJ (with whom Laws LJ agreed) observed as follows (at [15] and [21]):

[78] In Public Prosecutor v Tubbs Julia Elizabeth [2001] 2 SLR(R) 716 (“Tubbs Julia Elizabeth”), Yong Pung How CJ observed (albeit in the context of a charge under s 304A of the Penal Code (Cap 224, 1985 Rev Ed) for causing the death of three persons in a motor accident by doing a negligent act) as follows (at [45]):

“Agony of the moment”

[79] In a related vein, Mr Chettiar contended that the decision his client took was taken in the agony of the moment. The force of this argument becomes clear when one examines the following passage from Clerk & Lindsell on Torts (Sweet & Maxwell, 20th Ed, 2010) (at para 8-144):

[80] And, in Charlesworth & Percy, the following observations might be usefully noted (at para 4-08):

[81] In Greene v Sookdeo [2009] UKPC 31, the Privy Council (on appeal from the Court of Appeal of Trinidad and Tobago) observed as follows (at [17]):

[82] This proposition has been referred to, at times, as the rule in The Bywell Castle (see, for example, the English High Court decision of Marian Davis (Widow and Administratrix of the Estate of Michael Davis deceased) v Stena Line Limited [2005] EWHC 420 (QB) at [12]). In The Bywell Castle (1879) 4 PD 219, a collision took place between two ships. At first instance, Sir R Phillimore pronounced both vessels to blame for the collision. The owners of one of the ships appealed, and three Lords Justices enunciated what is likely to have been the origin of the doctrine of the “agony of the moment” (reference may also be made to Marsden on Collisions at Sea (Sweet & Maxwell, 13th Ed, 2003) at paras 4-09–4-11).

[83] First, James LJ said (at 222–223):

[84] Brett LJ added, as follows (at 226–227):

[85] Cotton LJ also stated, in a similar vein, as follows (at 228–229):

[86] Indeed, as Hill J aptly observed in the English High Court decision of The Crown (“Adolph Woermann”) v “Hessa” (1921) 9 Ll L Rep 271 (at 273) (affirmed on appeal in The Crown (“Adolph Woermann”) v “Hessa” (1922) 10 Ll L Rep 734):

[87] More generally, the following observations by Prof Glanville Williams in his magisterial work, Joint Torts and Contributory Negligence (Steven & Sons Limited, London, 1951), may also be usefully noted (at pp 360–361):

[88] In Fleming’s The Law of Torts (Carolyn Sappideen & Prue Vines gen eds) (Thomson Reuters, 10th Ed, 2011), it was observed as follows (at para 12.200):

[89] The Australian position is set out in Balkin & Davis, Law of Torts (LexisNexis Butterworths, 4th Ed, 2009), where the learned authors state (at para 10.13):

[90] Reference may also be made to the recent case of Stuart v Walsh [2012] NSWCA 186, where Tobias AJA, delivering the judgment of the Court of Appeal of the Supreme Court of New South Wales, discussed the principle of acting in the “agony of the moment” (at [61]–[62]).

[91] In Allen M Linden & Bruce Feldthusen, Canadian Tort Law (LexisNexis Canada, 9th Ed, 2011), the learned authors set out the law in the Canadian context as follows (at pp 497–498):

[92] And, in G H L Fridman, The Law of Torts in Canada (Thomson Reuters, 3rd Ed, 2010), the learned author states, as follows (at p 378):

[93] Reference may also be made to the recent Canadian decision of Wormell v Hagen [2009] BCJ No 1717, where the British Columbia Supreme Court addressed the concept (at [1]–[2], [34]–[36]).

[94] Perhaps one of the earliest (and possibly most oft-cited) modern statements of the doctrine of the “agony of the moment” in the Malaysian context may be found in the judgment of Raja Azlan Shah J (as he then was) in the Malaysian High Court decision of Govinda Raju v Laws [1966] MLJ 188 (“Govinda Raju”), as follows (at 190):

[95] In the Malaysian Federal Court decision of Yeoh Cheng Han v Official Administrator, Malaya [1972] 2 MLJ 7, the court had to deal with an appeal relating to a road traffic accident between a motorcycle and a motor scooter. Gill FJ (with whom Suffian and Ali FJJ concurred) observed as follows (at 10):

[96] In the Malaysian Federal Court decision of Len Omnibus Company Bhd v North South Transport Sdn Bhd & anor [1978] 2 MLJ 246, the court heard an appeal against the trial judge’s decision apportioning liability between the parties. A tree had fallen and was lying across the lorry’s side of the road. The road on which the bus was travelling was clear. The lorry, in attempting to proceed past the fallen tree, went on to the bus’s side of the road and collided into the bus. The trial judge found that the lorry driver’s negligence was the substantial but not sole cause of the accident, and that the bus driver had also been negligent, and apportioned liability in the proportion 75%-25%. Raja Azlan Shah CJ (with whom Wan Suleiman and Chang Min Tat FJJ concurred) observed, as follows (at 248):

[97] There have, in fact, been numerous Malaysian decisions dealing with the principle of the “agony of the moment”, many of which have also cited Govinda Raju. Indeed, in the Malaysian High Court decision of Chu Kim Sing v Abdul Razak bin Amin [1999] 6 MLJ 433, Abdul Malik Ishak J referred (at 456) to Govinda Raju as “the classical case”.

[98] Turning to a sampling of Singapore cases, in the Singapore High Court decision of Ong Chan Tow v Regina [1963] MLJ 160, the appellant was convicted on a charge of causing death by negligent driving. In this case, the bus driven by the appellant collided with a car driven by the deceased. The bus had been emerging from a minor road. A V Winslow J, in dismissing the appeal against conviction and substituting the fine with an imprisonment sentence, observed as follows (at 162):

[99] In Tay Koh Yat Bus Co Ltd v Chua Chong Cher and others [1971-1973] SLR(R) 354, the Privy Council considered an appeal from the Federal Court of Malaysia (which had reversed the decision made by the trial judge in the High Court of Singapore). In doing so, Lord Pearson, delivering the judgement of the Board, stated as follows (at [25]–[26]):

[100] In the Singapore High Court decision of Wee Soon Hian v Lai Ching Mow [1968-1970] SLR(R) 173, the court had to deal with a case where a passenger of a taxi, which had gone off the road onto a grass verge and had landed upside down in a drain, sued the driver in negligence. A V Winslow J, in dismissing the claim, held (at [7]–[9]):

[101] In the Singapore High Court decision of Foo Siang Him v Attorney-General [1983-1984] SLR(R) 586, the court had to decide a case relating to a fatal motorcycle accident. Lai Kew Chai J, in allowing the claim and finding the defendants entirely to blame for the accident, said (at [4]):

[102] In the Singapore High Court decision of See Soon Soon v Goh Yong Kwang and another [1992] 1 SLR(R) 535, a case where a medical officer was knocked down by a lorry, Chan Sek Keong J (as he was then) discussed the principle of the “agony of the moment”, as follows (at [20]):

[103] Turning to the facts of the present case, the Respondent was, in our view, responsible for placing the Appellant in a position in which he had to agonise over what to do in the most fleeting of timeframes. Having been placed in such a position, all that was necessary was that the Appellant’s conduct should not have been unreasonable, taking the exigencies of the particular situation into account. His choice to brake and swerve to the right could not be said to be unreasonable conduct in the light of the surrounding circumstances. In the dangerous circumstances the Appellant found himself in, his actions to attempt to save his own life were actions which a reasonably prudent man in his position would take. In his words:

[104] At the very most, it might be said, with hindsight, that he had made an error of judgment. Indeed, the Appellant was candid enough in cross-examination to discuss his reflections on the decision that he made that fateful day (reproduced above at [72]).

[105] However, even if it was an error of judgment, it was not culpable neglect. Indeed, the Judge appeared to have appreciated the difference between the two (see the GD at [24]):

[106] Having realised this, where the Judge was in error, with respect, was in finding that the Appellant was negligent in taking the evasive actions he did. Having examined the authorities and reviewed the facts, we were of the view that the Appellant’s actions were taken in the “agony of the moment”. He had acted reasonably in the circumstances and we find that there had been no negligence on his part in swerving to the right.

“Greatly increased the risk of collision”

[107] With respect, there is little evidence that there was a substantial increase in the risk of collision. There was no evidence, expert or otherwise, which was led to show that, relative to the two other options, the option of swerving to the right markedly increased the risk of collision. As the Appellant stated, the possibility of hitting the minibus was present in the two other options as well.

[108] For the reasons set out above, we allowed the appeal, and found the Respondent to be 100% liable for the accident.