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    11:56 PM Shaun Pereira (Assistant Registrar, Supreme Court of Singapore)

    Green Men and Treacherous Crossings: Asnah bte Ab Rahman v Li Jianlin [2016] 2 SLR 944

        

    Should a pedestrian keep a lookout for oncoming traffic while crossing with the green man in his favour? This innocuous question sharply divided the Court of Appeal in Asnah bte Ab Rahman v Li Jianlin [2016] 2 SLR 944.

    The facts

    At 10pm one evening, the respondent was waiting to proceed at a pedestrian crossing over a dual carriageway. The two carriageways, each two lanes wide, were separated by a centre divider: a low metal fence held in place by a concrete base. There was a break in the centre divider where the pedestrian crossing lay, so that the crossing extended unbroken across both carriageways.

    The traffic light turned red, and the green man illuminated in the respondent’s favour. As he was into the second half of the crossing, two or three steps after passing the central divider, the respondent was struck by a car driven by the appellant. The appellant had run the red light.

    The appellant’s vehicle was travelling at 55km/h when it made impact with the respondent. The force of the collision flung the respondent about 23m from where he was struck. He suffered severe and life-affecting injuries as a result. He also lost entirely his ability to recall the details of the accident. The appellant claimed she had not noticed the traffic light until her vehicle made impact with the respondent.

    The appellant conceded liability in negligence. She argued that the extent of her liability should be reduced because the respondent was contributorily negligent. He ought to have checked for oncoming traffic as he passed the central divider, and before he stepped onto the length of the pedestrian crossing that lay across the second carriageway. Had he done so, it would have been apparent that the appellant’s vehicle was approaching at too great a speed to come to complete halt in time. He would not have stepped into the path of the oncoming vehicle.

    The argument was rejected in the High Court. Choo Han Teck J said that, since the lights had been in the respondent’s favour for some time, he could not be blamed for assuming that any vehicular traffic would have to a stop (Li Jianlin v Asnah bte Ab Rahman [2014] SGHC 198 at [5]). He was therefore not contributorily negligent for failing to check for oncoming traffic as he passed the central divider.

    Choo J was reversed on appeal by a majority of the Court of Appeal, comprising Chao Hick Tin JA and Quentin Loh J. They reduced the appellant’s liability to the respondent by 15% because of the latter’s contributory negligence. Sundaresh Menon CJ dissented and agreed with Choo J’s reasons in the court below. Both the majority judgment and the dissent are intricate as they are meticulously reasoned. Each will be set out in some detail.

    The majority judgment

    The majority first established the premise that a pedestrian was responsible for keeping a lookout, even when crossing at a signalised pedestrian crossing with the lights were in his favour. This was:

    (a) borne out by statistics, which established a real risk of injury from motorists running red lights (at [31]–[35]);

    (b) justified by severe consequences which could follow from failing to keep a lookout, coupled with the minimal effort required on the part of pedestrians to do so (at [39]–[41]); and

    (c) consistent with the relevant subsidiary legislation and, indeed, implicit in the Highway Code (at [36]–[38] and [42]–[46]).

    The majority said that what was expected of pedestrians was set out in r 22 of the Highway Code, which enjoins pedestrians to wait until traffic has come to a standstill before crossing at a light controlled pedestrian crossing. This was required regardless of whether the pedestrian was commencing his crossing just after the lights had turned in his favour, or after the lights have been in his favour for some time (at [53]–[57]).

    The majority acknowledged that there was no continuing responsibility on the pedestrian to keep a lookout once he had made a reasonable assessment and commenced his crossing (at [58(c)]). It followed from this that if the respondent had made a reasonable assessment prior to commencing his crossing, and was satisfied that it was safe to cross, then there would ordinarily be no continuing duty to keep a lookout midway through the crossing, when he passed the centre divider (at [76]).

    The majority thought, however, that the relief and configuration of the particular road were also relevant. The curvature of the road, the positioning of the centre divider, and the time of day (night) cumulatively meant that it would have been difficult for the respondent to make an adequate assessment of the state of vehicular traffic on the second carriageway prior to his commencing crossing. He therefore ought to have made another assessment when he neared the centre divider (at [98]).

    The respondent was also not entitled to assume that traffic would have come to a stop since the lights had already been in his favour for some time. While the risk of motorists trying and failing to beat the red light would be greatly reduced with the passage of time after the lights had changed, there were other reasons for which motorists could be expected to run the red light. These included distractions, fatigue, lapses of attention, or the influence of alcohol, and they would continue to persist despite the length of time the lights had been in the pedestrian’s favour (at [101]).

    The dissent

    Menon CJ on the other hand emphasised the need to consider the particular facts of the case to ascertain the particular risk eventuating, in order to determine whether the claimant had contributed to the harm by not acting reasonably (at [140]).

    Menon CJ said that the passage of time after the lights turned in the pedestrian’s favour would greatly attenuate his duty to keep a lookout (at [147]). It may be reasonable to expect a pedestrian to guard against a motorist trying to beat a red just after the lights turned. But a pedestrian was entitled to expect and assume that road users will obey traffic signals and stop (at [147(a)]). To require a pedestrian to keep a lookout a significant time after the lights turned in his favour would, in effect, require the pedestrian to guard against motorists driving as if there was no traffic light or pedestrian crossing altogether (at [153]). That was a sufficiently rare occurrence so that there was no need for a pedestrian to guard against it.

    Menon CJ thought that neither the statistics nor the Highway Code supported the majority’s position that pedestrians had to guard against the risk that a motorist will wholly fail to apprehend that there were any lights at all at the crossing (at [153] and [155]­–[156]). The fact that the accident occurred at night, the curvature of the road and the presence of a centre divider were irrelevant once it was accepted that there was no duty on the respondent to guard against the risk of motorists who would ignore a traffic light (at [175]).

    Comment

    While the approaches of the majority judgment and the dissent appear at first glance to be sharply divergent, there is less distance between them than one may suppose. Both accepted that a pedestrian had a responsibility to keep a lookout before crossing; both accepted that that responsibility did not continue subsequent to the pedestrian satisfying himself that it was safe to cross.

    Both also sought to zero in on the particular circumstances of the case. The majority judgment expressed the need to consider the characteristics and relief of the road, and the time at which the accident occurred; the dissent conveyed that it was important to consider the particular risk that eventuated, and whether it was sufficiently common that the claimant ought to guard against it. The case turned on diverging views of what “common experience” entailed. The majority thought that a motorist running the red light, even a substantial time after the lights had turned against him, was sufficiently common that pedestrians generally ought to be required to guard against it. The dissent thought that such an occurrence was sufficiently uncommon that pedestrians generally need not guard against it.

    Yet the gap between the majority judgment and the dissent may be bridged if one accepts that the risk of a motorist running a red depends on a multitude of factors. The length of time between when the lights had changed and when the pedestrian is crossing is surely one; but that may not make irrelevant the particular features of the road and the time of the day at which the accident occurred. One may conclude that a pedestrian ought to have kept a lookout, even some time after the lights changed in his favour, had he been crossing a secluded road in an industrial estate in the dead of the night (having earlier seen a fast-approaching car in the distance), where he need not have done so when crossing a bustling junction in the city at midday. It may be inconsistent with the intensely fact-specific inquiry to establish a general rule that a pedestrian is always responsible to keep a lookout when crossing with the lights in his favour, or that he is never required to keep a lookout once the lights have been in his favour for some time.

    A second point flows from Menon CJ’s observation that pedestrians ought not to be required to guard against motorists that treat the lights as completely non-existent. The grosser or more reckless the type of negligence involved, the less likely it will be that the defendant can rely on the contributory negligence of the claimant, because it will be less likely that a defendant will be held responsible for failing to guard against it. But one must also be careful to balance this against the principle that it is the conduct of the claimant that takes centre-stage in contributory negligence cases. Placing excessive weight on the manner or severity (and thus foreseeability) of the defendant’s negligence may obscure this. Indeed, Menon CJ emphasised that the appellant’s conduct was relevant only insofar as it provided the context for determining the reasonableness of the respondent’s actions.

    These two points are no more than a reminder that in contributory negligence cases, “if causal arguments need to be at all complex or elaborate they will usually be out of place” (Richard A Buckley, The Law of Negligence and Nuisance (LexisNexis, 2011) at paragraph 22.08). It is important to focus on the precise facts of each case. One must tread with caution when proceeding from broad and general statements of principle or analogies with the facts of previously decided cases.

    * This blog entry may be cited as Shaun Pereira, “Green Men and Treacherous Crossings: Asnah bte Ab Rahman v Li Jianlin [2016] 2 SLR 94” (7 June 2016) (http://www.singaporelawblog.sg/blog/article/163)

    ** The opinions contained in the commentary reflect the author’s own views and are not to be understood as reflecting the views of the author’s employer

    *** A PDF version of this entry may be downloaded here

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