Defending Claims for Motor Accidents
If a claim has been made against you for a motor accident, the first thing you should do is to report to your insurer. This occurs if you have received any documents from the lawyers of the other party involved in the accident, be it in the form of a letter of demand, writ of summons, offers of composition or notices of proceedings. The documents should also be handed over to your insurer. Do not admit liability or make any payment without the written consent of your insurer.
Especially where a writ of summons has been served on you personally, it is imperative that you inform your insurer as soon as possible. This is because within 8 days of the writ being served on you, a memorandum of appearance must be filed in Court. Failing which, either a final judgment or an interlocutory judgment can be entered against you.
If your insurers repudiate liability for whatever reason, you may want to engage your own lawyer to handle the case. One common reason for repudiation is if you were driving under the influence of alcohol when the accident occurred. We have a list of experienced lawyers available at hand to advise you on your case. You will then have to bear the costs of engaging a lawyer.
If you engage a lawyer, the lawyer will aid you in writing to the relevant authorities (such as the police, hospitals) for reports relating to the accident. The lawyer will also help you write letters of demand to claim for compensation, and negotiate for a settlement if applicable. If the case proceeds to Court, the lawyer can help you prepare all necessary Court documents and represent you.
Defences You May Possibly Rely on
If you wish to challenge a claim made by the other party against you, there are several defences you could consider relying on.
1. Contributory negligence
This defence, if successful, does not absolve one from liability totally. Instead, it will reduce the amount of damages the Defendant has to pay. The onus will be on the Defendant to prove his defence.
For this defence to succeed, it must be shown that the injured party (Plaintiff) did not take reasonable care of himself and hence contributed, by his want of care, to his own injury. A person may be contributorily negligent if he/she ought to have reasonably foreseen that the failure to act prudently could result in harm to him/herself.
For example, if the Plaintiff was jaywalking and was knocked down by the Defendant who was speeding, the bulk of the blame would lie in the Defendant in not abiding by the speed limit. However, the Plaintiff would be contributorily negligent by not looking out for vehicles and taking care when crossing the road.
2. Agony of the moment
This defence would assist a driver who, though he/she struck someone or something, can still be considered to have acted reasonably considering the surrounding circumstances. For example, where a person collides with another vehicle as he/she was forced to apply the brakes suddenly, or swerved to avoid hitting something else, he/she may be considered to have acted in the agony of the moment.
In considering whether a person would qualify for this defence, the Judge will consider all the facts surrounding the circumstances and determine if the actions were what a reasonable, prudent man in his/her shoes would have taken. If so, the driver will be absolved of liability.
3. Inevitable accident
This is a defence against a claim of negligence. To establish this defence, the Defendant has to show that he could not, by exercising ordinary care, caution and skill, have prevented the accident.
However, this defence and a claim in negligence are on opposite sides of the coin – that is, if the Defendant was found to have been negligent, it cannot be said to have been an inevitable accident and vice versa.
Similarly, in considering whether a person would qualify for this defence, the Judge will consider all the facts surrounding the circumstances and determine if an ordinary and careful driver in the shoes of the Defendant would have been able to avoid the accident as well.
4. Volenti non fit injuria – consent to risks of harm
To prove this defence, the Defendant must satisfy the following requirements:
- Prove that the Plaintiff had acted freely and voluntarily
- Prove that the Plaintiff acted with full knowledge of the nature and extent of the risk of harm created by the Defendant’s
- Prove that the Plaintiff expressly or impliedly consented to the risks
If the criteria are met, the Plaintiff is taken to have waived his/her right of action against the Defendant in the event of a breach of duty by the Defendant. An example of situations where this defence has been adopted is in the context of drink-driving. In a past case, English Courts have held that where the drunkenness of the driver at the material time was so extreme and glaring, that to accept a lift from the driver would be akin to engaging in an intrinsically and obviously dangerous activity.
However, this defence is unlikely to be made out in Singapore given section 5 of the Motor Vehicles (Third-party Risks and Compensation) Act, which states that such agreements are overruled as long as the driver has obtained insurance against third party risks. Under section 3(1), insurance against third party risks is compulsory for drivers in Singapore.
5. Ex turpi causa: illegality
The basis of this defence is that the Court will not assist a person who founds his action on an illegal or immoral act. However, this defence is rarely used in practice. To establish this defence, the Defendant must have committed an offence that is sufficiently serious, and the damage suffered by the Plaintiff must be sufficiently connected to the Defendant’s wrongdoing.
Nonetheless, there have been cases which succeeded in establishing this defence. In one of those cases, the Plaintiff, who was riding pillion, encouraged the Defendant to drive even though he knew that the Defendant was not licensed.
6. Res judicata
A claim would fail if, in commencing it, the Plaintiff would be attempting to re-open litigation that was already decided, or if the claim could and should have been raised in the course of already decided litigation. Where a matter has been decided between two parties in a suit and the decision was made final, either because no appeal was taken to the higher Court or the appeal was dismissed, neither party will be allowed to canvass the matter again between the same parties in a future suit.
This is less of a defence and more of a legal principle. The underlying rationale for this principle is to ensure finality in the process of litigation. For example, where a motorist who sustained injury in a motor accident brought a claim against the local highway authority, it was disallowed as the claim could and ought to have been made in an earlier action by his front seat passenger.
In summary, even if a claim is brought against you, it does not mean that you have no possible forms of recourse against the claim. You should consider if any of the defences mentioned above are applicable in your case. Seek the advice of a lawyer if you wish to find out the likelihood of success of the defences.
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