In the first quarter of 2018 alone, 38 people have died in 36 accidents on our country’s roads. You might still remember the harrowing fatal collision between a taxi and an oncoming car which led to the death of a 19-year old female student earlier this year. Traffic accidents are now becoming a weekly occurrence in Singapore, with a sizeable number being classified as fatal accidents.
Getting into a car accident, much less a fatal accident, can be daunting and even more traumatising when we do not have adequate legal knowledge about liability issues and the consequences that may follow. However, drivers are not always culpable. In such instances, what exceptions can they raise in their defence? In this article, we give you an overview of the penalties typically imposed on a guilty individual as well as exceptions which apply to drivers who are not at fault.
What are the punishments for causing a fatal accident?
Drivers who cause fatal accidents are usually prosecuted by the State. Criminal charges are brought by public prosecutors on behalf of the State against errant drivers pursuant to the Penal Code (“PC”) and the Road Traffic Act (“RTA”).
At the same time, a civil claim may also be brought against you by affected parties, such as estate and dependents of the victim. This type of claim is usually for the personal injuries resulting in the death and consequential loss and expense such as medical expenses, funeral expenses, dependency claims and property damage.
There are currently three ways in which you may be punished by the State for causing a fatal accident:
- Causing death by reckless or dangerous driving, under section 66(1) of the RTA; or
- Causing death by rash act, under section 304A(a) of the PC; or
- Causing death by negligent act, under section 304A(b) of the PC.
As for the sentencing of these offences, the primary consideration is one of general deterrence. The public policy imperative is to keep the roads safe for drivers, commuters and pedestrians. Thus, those who would callously place the lives of others at risk will usually be taken sternly to task (PP v Manuel Ang Boon Jiat [2017] SGMC 46).
Causing death by reckless or dangerous driving
| Section 66(1) of the Road Traffic Act | Punishment under section 66(1) of the Road Traffic Act |
A driver may be liable for an offence under section 66(1) of the RTA if he causes the death of another person by:
Whether the driver was being reckless or a danger to the public is a factual determination. The court will take into account the circumstances of each individual case such as:
Generally, a driver is deemed to have acted recklessly when he is aware of the risks present but has a complete disregard of the state of affairs on the road at the time in question, or that the risk was so obvious that the driver, as a reasonable person, ought to have known that his driving in the particular manner would result in the death of a person (Jali). For example, a driver that knowingly makes a turn at a traffic junction without checking his blind spots or side view mirrors is considered to have acted in a reckless manner. On the other hand, driving in a manner which is dangerous to the public can be objectively ascertained such as in situations where the driver is:
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To further illustrate, in Jali bin Mohd Yunos v Public Prosecutor [2014] SGCA 50, the driver entered a signalized junction by tailgating the vehicle in front of him and omitted to check the state of the traffic light when in fact, the traffic lights were red against him. Unfortunately, the driver collided into a pedestrian. The Court of Appeal deemed the driver as reckless as he consciously and deliberately drove into the traffic junction with the knowledge that this might cause damage and/or personal injury, even death. The conscious and deliberate act of failing to check the traffic lights before proceeding demonstrated a heedlessness of indifference towards the risk previously mentioned. Recklessness in road traffic offences is however only one factor to be taken into account in determining the appropriate sentence that ought to be meted out. The approach to sentencing in any case is a fact-sensitive one.
Causing death by rash act
| Section 304A(a) of the Penal Code | Punishment under section 304A(a) of the Penal Code |
| Similar to reckless driving, a driver will be deemed to be acting rashly when he is aware of the risk of his act that led to the fatal accident, yet chose to act on it, often hoping that the consequences would not happen. Advertence to risk is an essential element of rashness.
For example, a driver may be aware that he must slow down and check for pedestrians when approaching a zebra crossing. Yet, the driver fails to do so and hopes that no pedestrian will be crossing as he speeds past the zebra crossing. If a fatal accident occurs, the driver will be liable for causing death by rash act. |
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To illustrate, in the case of Public Prosecutor v Sum Yew Leong District Arrest Case No 922727 of 2014, the driver drove a tipper truck towards a rubbish collection centre. To save time, he took a shortcut by driving past a “No Entry” sign and travelled against the flow of traffic. While executing a subsequent turn, he ran over a cyclist, killing him. The driver was eventually charged under s 304A(a) for driving rashly.
Causing death by negligent act
| Section 304A(b) of the Penal Code | Punishment under section 304A(b) of the Penal Code |
| In contrast, a driver is negligent if he is unaware of the risk that led to the fatal accident, yet the driver did not exercise proper caution in driving safely. Awareness of the potential risks is the dividing line between negligence and rashness (Public Prosecutor v Hue An Li [2014] SGHC 171).
For example, a driver may be sleep deprived but is unaware of his likelihood to fall asleep behind his wheel. Nevertheless, he should have taken proper precautions to get sufficient rest. If the driver falls asleep behind the wheel and that eventually results in a fatal accident, the driver will be liable for causing death by negligent act. |
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To further demonstrate, in the case of Public Prosecutor v Lee Kao Chong Sylvester [2012] SGHC 96, the accused deliberately reversed his car at high speeds for an extensive distance when he could not completely see the path of his reversing vehicle. As a result, the driver collided with a pedestrian, resulting in the pedestrian’s death. The High Court deemed the driver’s act as dangerous and grossly negligent.
Exceptions when a driver may not be guilty
Nevertheless, there are exceptional circumstances when a driver may found to be not at fault. Being at the wrong place and at the wrong time can lead to an unfortunate incident that no one expects. Certain defences, as stipulated in the Penal Code, can be raised to prove one’s innocence and absolve you from criminal responsibility. In reality, these defences are rarely invoked.
Defence of mistake of fact
The defence of mistake of fact is stipulated under sections 76 and 79 of the Penal Code.
The conditions to successfully prove the defence of mistake of fact are:
- the driver has been induced by a mistake to commit the criminal act in question;
- the mistake was one of fact and not of law;
- the driver mistakenly believed that he was bound (section 76) or justified (section 79) by law in doing the criminal act; and
- the mistake was believed by the driver in good faith.
As further elaborated in section 52 of the Penal Code, the test of good faith is whether you have exercised due care and attention. The threshold to successfully make out the defence of mistake of fact is high. It will not be enough to show that the mistake made by the driver is reasonable, but whether the driver has actually exercised due care and attention.
For example, it is not enough to show that colliding with a motorcyclist was reasonable, simply because he was in your blind spot. Due care and attention must have been exercised to constantly check your blind spots while driving.
Defence of accident
Next, section 80 of the Penal Code provides for the defence of accident in the doing of a lawful act.
The conditions to successfully prove the defence of accident are:
- the act by the driver was due to a misfortune or an accident;
- the act by the driver occurred while he was driving lawfully, in a lawful manner, by lawful means;
- driving was done with proper care and caution; and
- driving was not done with any criminal intention or knowledge.
To illustrate, Uncle Lim is driving at a relatively slow speed and constantly checks his mirrors and blind spots. Suddenly, a stranger jumps in front of his car and was knocked down. Unfortunately, the stranger succumbed to his injuries and dies. Uncle Lim had taken reasonable precautions such as slowing down and checking his surroundings. It was an unfortunate accident that occurred even though all reasonable precautions have been taken to drive safely.
Therefore, Uncle Lim may raise the defence of accident to absolve himself of criminal liability.
Defence of necessity
Next, section 81 of the Penal Code provides for the defence of necessity.
Causing a fatal accident will not be an offence when it is done without any ill intentions to injure. Moreover, it must be done in good faith to prevent and avoid inflicting harm onto other persons or properties.
The following conditions must be satisfied:
- the act must not be done with any criminal intention to cause harm;
- the act was done in good faith to prevent or avoid other harm to person or property; and
- the harm must have been done to avert a greater harm.
To elaborate further on the three limbs, “criminal intention” would mean an intention to cause harm in bad faith. Moreover, “good faith” would mean to do something with due care and attention. Lastly, for the third limb, there must be a separate harm that is present that the driver is actively trying to avert.
For instance, Mr. Tan suddenly finds himself in such a position that he cannot stop his vehicle in time, and he must inevitably run down a group of school children, unless he changes his course by swerving his vehicle to the right and then risk running over a single pedestrian which he may avoid.
In this scenario, the act in question is swerving the vehicle to the right. Therefore, if Mr. Tan changes his course with no intention to run down the pedestrian and acts in good faith to avoid the danger to the group of school children, Mr. Tan will not be guilty even though he may run down the single pedestrian. Thus, Mr. Tan will be able to successfully raise the defence of necessity.
Defence of insanity
Last, section 84 of the Penal Code provides for the defence of insanity.
To successfully establish a defence of insanity, the following conditions must be proved:
- the driver must be mentally impaired; and
- the driver’s insanity resulted in him not knowing (i) the nature of his act or (ii) if he did know this, he did not know that it was wrong.
Generally, the driver must be incapable of knowing the nature of his act or that it was wrong or contrary to the law. Usually, a psychiatric report would be called for to determine the mental capacity of the offender.
Mitigating Factors
Mitigating factors can be raised to reduce the sentence to be imposed and to possibly evoke the court’s sympathy, as all judges, while bound by sentencing guidelines, ultimately have discretion in sentencing. It is important to note that mitigating factors do not absolve you from any liability but may lessen the severity of the wrongdoing.
Contributory negligence
Contributory negligence can be pleaded as a mitigating factor against criminal charges for fatal accidents and may at times be accorded weight in sentencing. To illustrate:
- In the UK case of R v Smith [2011] EWCA Crim 2844, the driver’s sentence was mitigated as the UK Court of Appeal found that the victim was dressed in dark clothing while walking along an unlit road.
- In the Canada case of R v Cluney 2013 NLCA 46, the victim grabbed the driver’s steering wheel suddenly and without warning, causing the car to fishtail. The Canada Court of Appeal held that the sudden and deliberate act of the victim had contributed significantly to the collision. Hence, a reduction in the driver’s sentence is adequate.
Nevertheless, the conduct of the victim or a third party must have a direct bearing on the culpability of the offender. The recent Singapore High Court case in Guay Seng Tiong Nickson v Public Prosecutor [2016] SGHC 94 clarified that if the victim or third party was merely negligent with no material contribution to the outcome of the accident, it should not affect the sentence to be imposed. In that case, the failure to secure the deceased child was not a relevant consideration in sentencing since it does not have any bearing on the negligence of the errant driver. Hence, the supposed negligence in question was not considered as a mitigating factor.
In contrast, contributory negligence is more commonly pleaded as a partial defence in relation to civil claims to reduce the quantum of damages payable. This defence is codified in Section 3(5) of the Contributory Negligence and Personal Injuries Act – when a victim is partly at fault which results in his own death, the damages recoverable by the dependants would be reduced by a proportionate extent. The court will generally consider the apportioning of liability between parties and their respective degree of blameworthiness.
Other mitigating factors
Other mitigating factors include (PP v Toh Cheng Yang [2015] SGDC 182):
- an early plea of guilt;
- cooperation with investigations;
- absence of previous convictions;
- evidence of genuine shock or remorse;
- a good driving record; and
- the fact that the offender has also been seriously injured as a result of the accident.
Conclusion
To conclude, driving is an inherently dangerous activity. It would be advisable for all drivers to heed caution when electing to drive a vehicle as the law will hold them accountable to the highest of standards expected from a reasonably competent driver. Nevertheless, with safe driving habits, care and consideration to other road users, we can all make an effort to keep our roads safe.
Need legal advice for accident claims?
If you need advice for accident related matters, you can get a Quick Consult with Viviene Sandhu or other lawyers. With Quick Consult, you can check out in minutes and for a transparent, flat fee from S$49, the lawyers will call you back on the phone within 1-2 days to answer your questions and give you legal advice.
This article is written by Viviene Sandhu from Clifford Law and Terrence Lerh from the Asian Law Students’ Association.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
Continue reading:
- What to do if you get into a traffic accident with a foreign vehicle
- Traffic Accident Victims: How to Make a Claim?
- What to do after a traffic accident in Singapore – Tips from a lawyer
