JUDGMENTBY: SEAH SCJ

(delivering the Judgment of the Court) This appeal is limited to the apportionment of liability to the extent of one-third against the appellant and two-thirds against the respondent. The contention of the appellant was that the motor accident was caused solely by the negligence of the respondent and the learned judge was wrong to find that the appellant was also guilty of contributory negligence.

Like most motor accident claims there were conflicting versions and the learned judge after hearing and seeing the plaintiff (respondent in this appeal) and the defendant (the appellant herein) made the following findings at pages 3 and 4 of his Grounds of Judgment:

"I find from the evidence that the car did give trafficator light

signal when it was just over one chain away from where it stopped. I

found that there were two motor cycles behind the said car, one of the

motor cycles eventually passed on the drivers left while the other

knocked into the rear off-side of the said car. I found that the last

time or the second time the driver looked into the rear-view mirror was

when he was about 2 to 3 chains away from the place when he stopped and

that he did not look into it again up to the moment of the collision. I

found that the car had stopped to let the oncoming lorry pass the car.

I further found that the rider had decided to overtake the said car

which was slowing down, and not that the driver had applied emergency

brake in stopping suddenly, causing and forcing the rider to swerve to

his right to overtake to avoid the collision.

I found the rider negligent in overtaking without ensuring whether it

was safe to do so, and that he should have seen the oncoming lorry too

in view of the significant obstruction of the view infront caused by

the small size of the said car which was a Toyota Corolla. He further

failed to wait to ascertain first the intention of the driver who had

switched on his trafficator light signal before deciding to overtake

the said car. He was travelling too close to the said car. The next

question was, as to whether the driver was himself guilty of any

contributory negligence."

We would pause here to deal with the question of contributory negligence. Unless it is properly understood it is apt to be misleading. The expression "contributory negligence" applies mainly to the conduct of the plaintiff. Du Parcq L.J. in Lewis v Denye [1939] 2 KB 540, 554 said:

"In order to establish the defence of contributory negligence, the

defendant must prove, first, that the plaintiff failed to take

ordinary care of himself or, in other words, such care as a

reasonable man would take for his own safety, and, secondly, that his

failure to take care was a contributory cause of the accident."

The amount of care which the plaintiff may reasonably be expected to take necessarily varies with the circumstances and with the conditions actually prevailing at the material time.

In addition, the word "negligence" is not used in its usual meaning. Negligence ordinarily means breach of a legal duty to take care, but as used in the expression "contributory negligence" it does not mean breach of duty. It means the failure by a person to use reasonable care for the safety of himself or his property, so that he becomes "the author of his own wrong" [see Parke B. in Bridge v Grand Junction Ry (1838) 150 ER 1134 and the judgment of Lord Maugham in R v Southern Canada Power Co [1937] 3 All ER 923, 930]. More recently in Nance v British Columbia Electric Ry [1951] AC 601, 611. Lord Simon said:

"When contributory negligence is set up as a defence, its existence

does not depend on any duty owed by the injured party to the party

sued, and all that is necessary to establish such a defence is to prove

... that the injured party did not in his own

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