Singaporeans often drive across the causeway into Johor Bahru over the weekend for shopping. Leisure turns to tragedy if you are involved in a motor accident. You get injured and your car damaged. As a claimant residing in Singapore, you obviously prefer to file the claim in Singapore. It’s not worth the trouble to travel across the causeway over a simple neck sprain. Furthermore, the damages you receive in a Singapore court will be in Singapore dollars, which is more than the award in Malaysian currency if you file the claim in a Malaysian court. But the other party that caused the accident was a Malaysian-registered vehicle driven by a Malaysian. Are you then confined to a court in Malaysia1?
Which court to do you go?
- The starting point is that the country where the motor accident happened will hear the case2. So if the accident happened in Malaysia, you file the claim in Malaysia. Thankfully, this is only a starting point and may not always be the case.
- In Goh Suan Hee v Teo Cher Teck [2009] SGCA 52 (“Goh Suan Hee”), a Singaporean driver was injured by a Malaysian car in Johor Bahru. The injured driver filed the claim in the District Court in Singapore. The Defendant (i.e. Malaysian driver) applied for an order to stay the action on the ground that Malaysia is a more convenient forum. In deciding this issue, the court held that there are factors other than the country where the motor accident happened. For instance, the country of residence of the witnesses. On its facts, all the witnesses reside in Singapore, with the exception of the Malaysian tortfeasor3. On this basis, the court action in Singapore was allowed to continue.
Choice of law to calculate4 damages – Singapore or Malaysian laws?
- But filing the claim in a Singapore court does not mean that our court will always use Singapore law to calculate damages, so as to give a higher award to claimant5. The law relating to the calculation of damages (specifically, general damages) is different in Singapore and Malaysia6. Thus it may well be that the Singapore court – when calculating damages for your claim – will instead apply Malaysian laws such that the successful litigant will still get approximately the same award had he sued in Malaysia7.
Other illustrations of motor accidents in Malaysia
No Singapore-registered vehicle was involved
- Goh Suan Hee involved a Singaporean driver of a (presumably) Singapore-registered vehicle. In contrast, there was no Singapore-registered vehicle at all in Ismail bin Sukardi v Kamal bin Ikhwan and Another [2008] SGHC 191 (“Ismail”). The foreign element in this case is stronger as the injured claimant was a Singaporean passenger on board a Malayisian bus, which collided into the rear of a Malaysian lorry. The accident happened further away from Singapore, in Penang. The Defendants – the driver and operator of the Malaysian bus – failed in their application to stay the court action in Singapore. Again, the country of residence of the material witnesses (being Singapore) was a factor relied by the court to allow the action in Singapore to continue8.
- Beware however that the choice of forum is a separate issue from enforcing a judgment issued in Singapore. As the court cautioned in Ismail, when deciding on the appropriate forum to hear the case, the court is concerned with the appropriateness of the forum for the trial process, rather than the question of post-trial remedies such as enforcement of judgments9. Thus, if the Malaysian driver and his insurer have no assets in Singapore, the judgment issued in Singapore will have to be enforced in Malaysia, in which case Malaysian lawyers will need to be appointed.
Vehicles involved were all Singaporean-registered
- If all vehicles involved in the accident were all Singapore-registered, the connection to Singapore becomes stronger. It follows there should be no difficulty to file the claim in the Singapore courts. Neither should there be difficulty to enforce the judgment issued in Singapore. It used to be the case that an injured claimant was unable enforce a judgment issued in Singapore against the insurer of a Singapore-registered vehicle, if the accident happened in Malaysia10. Thankfully it has now changed with the amendment to the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 in October 199811. An insurer of a Singapore-registered vehicle is now statutorily obliged12 to satisfy a judgment in relation to death or bodily injury of a person arising from an accident in Malaysia.
Conclusion
- The key takeaway: it is good news that it is possible for a claimant to file the claim in Singapore over an accident in Malaysia. But practical considerations on whether a claimant can enjoy the fruits of the litigation – in particular, the laws used to calculate damages, and enforcing the judgment against Malaysian drivers and their insurer who have no assets in Singapore – remain.
1 References to ‘Malaysia’ in this article is confined to West Malaysia.
2 Goh Suan Hee v Teo Cher Teck [2009] SGCA 52 (“Goh Suan Hee”) at [10].
3 Goh Suan Hee, supra note 2 at [28].
4 More appropriately, “quantifying”. The word “calculate” is used to facilitate understanding by the common reader.
5 Goh Suan Hee, supra note 2 at [22].
6 Goh Suan Hee, supra note 2 at [14] and [28].
7 Goh Suan Hee, supra note 2 at [22].
8 Ismail at ]25].
9 Ismail at [27].
10 Nippon Fire and Marine Insurance Co Ltd v Sim Jin Hwee [1998] SGCA 24.
11 Act No. 23 of 1998.
12 S. 9(1) read with s. 4(1)(b) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960.
