ACD (by her next friend B) v See Mun Li

Teo Guan Siew AR:

[1] A six year old girl met with a road traffic accident as a result of which she sustained injuries to her head. Due to her young age, there is uncertainty as to whether she will develop a specific medical condition arising from the head injuries. In assessing the amount of damages that the girl is entitled to, should the court make an order allowing her to come back to court if and when this medical condition actually materialises? The present case involves this question of whether or not such a provisional order for damages should be made.

[2] The plaintiff, for whom this action was brought by her father as her litigation representative, was knocked down by a car driven by the defendant in August 2004. She was six years of age at the time of the accident, and sustained serious head injuries which caused her to suffer from inter alia a diabetic condition known as central diabetes insipidus, as well as a hormonal problem known as cortisol deficiency which inhibited her growth. Due to these medical conditions, the plaintiff requires constant medication including nightly injections of growth hormones.

[3] Consent judgment was entered in respect of liability at 65% in favour of the plaintiff. When the matter came before me for assessment, the defendant did not dispute the medical evidence of the plaintiff’s doctors, and counsel for the defendant chose not to cross-examine her doctors. No witnesses were called by the defendant. This could therefore have been a rather straightforward exercise of quantification of damages, but there was one main difficulty. As the plaintiff was only ten years old at the time of assessment, it was uncertain whether or not she would develop a specific medical condition, namely sexual hormonal deficiency. The evidence of the plaintiff’s doctors was that this would only become clear when she reaches around 13 years of age, which is the normal age of puberty.

[4] At the conclusion of the assessment proceedings, I made an award of damages in the sum of $203,705 ($132,409 at 65% liability) for the plaintiff’s pain and suffering, loss of earning capacity, as well as her future medical and transport expenses, based on her existing medical conditions. In addition, I made a provisional order for damages, which gave the plaintiff the liberty to apply, within the next five years, for further damages in the event that she does suffer from sexual hormonal deficiency. As both counsel informed me that this was the first time that such an order for provisional damages was made in Singapore (at any rate there was no reported local decision of the same), I decided to provide my written reasons for making such an order.

[5] The court’s power to make an order for provisional damages is provided under paragraph 16 of the First Schedule of the Supreme Court of Judicature Act (Cap. 322, 2007 Rev Ed) (“SCJA”), which states:

[6] Similarly, the Rules of Court (Cap. 322, R5, 2006 Rev Ed) provide as follows:

[7] The provisions merely state that the court can make an order for the injured party to apply for further damages in the event that the contingency happens, with no guidance as to what amounts to such a contingency and when it would be appropriate for such an order to be made. I was also not referred by counsel to any local decisions which interpreted these provisions. That being the case, it is instructive to examine the position under English law.

[8] The starting point is that there should be finality in the administration of justice, such that as a general rule damages should be assessed once and for all. Lord Pearce in Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 observed (at 1027):

[9] However, it became clear in England that this general rule cannot be applied immutably to all cases, particularly as regards personal injuries cases. As the court noted in Adan v Securicor Custodial Services Ltd [2004] EWHC 394, there developed a growing school of thought that the “once and for all” principle of assessment (if applied rigidly) “is too rough and ready and can lead to considerable hardship and injustice”, in the sense that “later events often mean that claimants are over or under-compensated having regard to their true needs”. In Deeny v Gooda Walker Ltd [1995] 4 All ER 289, Philips J commented:

[10] These considerations form the rationale behind the creation of a statutory exception to the finality principle, in the context of personal injury cases. Section 32A of the UK Supreme Court Act 1981 provides as follows:

[11] While s 32A is similar to our paragraph 16 of the First Schedule of the SCJA in that both provisions give the court the power to make a provisional order as to damages, there are a few important differences. First, s 32A refers to a “chance” rather than a “contingency”. Second, s 32A requires the “chance” to be proved or admitted, whereas paragraph 16 merely refers to “if the contingency happens”. Third, the triggering event for the right to seek further damages under s 32A is the development of a “serious disease” or the “serious deterioration” of the claimant’s physical or mental condition. Our paragraph 16 does not describe what is the nature of the “contingency” before there can be an entitlement to return to the court for another award of damages.

[12] Section 32A has been the subject of several English decisions. In Willson v Ministry of Defence [1991] 1 All ER 638 (“the Willson case”), the claimant who was an employee in a naval dockyard injured his ankle during work. The medical evidence was that there would be degeneration of his ankle joint and it was possible that he would develop arthritis as a result. In his action seeking damages from his employer, the claimant applied for an award of provisional damages, contending that if he develops arthritis to the extent that he requires a surgery or has to change his employment, that would occasion a further award of damages. Scott Baker J (at 642) considered the meaning of the word “chance” in s 32A:

[13] The judge accepted that the claimant had successfully shown that there was such a “chance” that he will develop arthritis to the extent that he requires surgery or has to look for another job. In particular, the judge’s view was that “[h]owever slim those chances may be”, they are still measurable within the meaning of the section. However, unfortunately for the claimant, he failed to clear the next hurdle of showing that the arthritis would constitute a “serious deterioration” in his physical condition. Scott Baker J explained at 642:

[14] Further in his judgment, Scott Baker J elaborated (at 644):

[15] In reaching his conclusion that the claimant should not be entitled to provisional damages, the judge also took into account “the degree of risk and the consequences of the risk”. Also, he appeared to have engaged in a balancing exercise, when he opined that the court needs to weigh “the possibility of doing justice by a once-and-for-all assessment against the possibility of doing better justice by reserving the plaintiff’s right to return”.

[16] In the earlier case of Patterson v Ministry of Defence [1987] CLY 1194, a very similar view was taken as to the requirement of a clear-cut event. The court said:

[17] In conducting the balancing exercise as envisaged by Scott Baker J in the Willson case, the defendant’s position must of course be taken into account. In this regard, the case of Adan v Securicor Custodial Services Ltd is helpful. The facts there were somewhat unusual, in that the attempt at seeking provisional damages was premised on the possible improvement as opposed to deterioration of the claimant’s mental condition. This meant that s 32A of the English Act could not apply. Be that as it may, the following general observation (at [18] and [19] of the decision) on the effect of a provisional order of damages on the defendant (or his insurers) remains pertinent:

[18] Hence, the prospect of uncertain liability of the defendant for an unknown period of time would appear to be a factor that the English courts would take into account in determining whether the discretion should be exercised in favour of making an order for provisional damages.

[19] In Cowan v Kitson Insulations Limited and others [1991] 1 PIQR Q19, which involved a claim for damages for injuries that resulted from exposure to asbestos, the claimant had a 10 to 15 percent risk of asbestosis, 8 to 10 percent risk of mesothelioma, and 10 to 15 percent risk of lung cancer. Although it was open to the claimant to apply for an order of provisional damages in respect of those medical risks, he however opted for a final assessment as at the date of trial. The defendant’s counsel urged the court not to overcompensate the claimant for his future loss of earnings, since it was the claimant’s own decision not to defer the assessment and wait to see if he would in fact suffer from those ailments. This line of argument was roundly rejected by the court, which took the view that the claimant ought not to be prejudiced simply because he chose not to ask for a provisional order. Instead, the court would do its best to factor in the risks of the diseases in arriving at a fair award as at the present date of assessment. The court commented as follows:

[20] A summary of the applicable principles, as distilled from the English cases above (principally the Willson case), is as follows:

[21] It would appear to me that the above principles are sensible and broadly speaking, ought to be equally relevant in deciding whether or not a provisional order for damages should be made in the local context under paragraph 16 of the First Schedule of the SCJA and O 37 r 8 of the Rules of Court. The only caveat is that in applying these principles, the court should have regard to the differences in wording of our provisions from their UK equivalent. To the above list, I would add another factor which the court should consider in deciding whether to exercise its discretion to grant a provisional order, and that is the period of time that the provisional order will have to remain in effect. In conducting the balancing exercise, it is clearly pertinent to take into account whether the defendant would be exposed to potential liability for an indefinite period of time (as the court’s observations in Adan v Securicor Custodial Services Ltd suggest). If a suitably restrictive period of time could be set by the court, within which the plaintiff must make his further application for damages, any prejudice caused to the defendant in terms of uncertainty as to his extent of liability will be minimised.

[22] Before applying the above principles to the facts of this case, a threshold objection raised by the defendant’s counsel must be addressed, namely that the plaintiff failed to sufficiently plead what the contingent event is which will trigger the award for provisional damages. In this respect, it is pertinent to set out the relevant parts of the Statement of Claim, which read:

[23] There is force to the submission of the defendant’s counsel that the above paragraphs of the Statement of Claim are too vague and do not precisely identify the “contingency” that is sought to be relied upon to invoke the right to provisional damages. In particular, I agree that it is insufficient to state the contingency merely by reference to “future consequential detrimental medical developments”. One must plead with specificity the exact medical condition, which if it develops in the future, is to form the triggering event to apply for further damages. There are indeed some difficulties with the pleading: cortisol deficiency cannot possibly be the contingency relied upon since it is already a pre-existing condition in the plaintiff, and there is no attempt at all to state what is the neurological or endocrinological condition that the plaintiff may develop.

[24] The pleadings can be improved upon, but I do not think that the defects should be fatal to the plaintiff’s claim for provisional damages. It is possible to identify one specific contingent event from the pleadings, namely the plaintiff’s inability to reach puberty at the usual age due to her sexual hormonal deficiency (although even for this, there has been a failure to expressly state that the sexual hormonal deficiency is the precise contingency within the meaning of the relevant statutory provisions). Fortunately for the plaintiff, as will be seen shortly, the medical evidence indeed indicates that this is a distinct medical complication that the plaintiff may well develop in the future, but which for now remains uncertain. While my view is that the plaintiff should not be shut out merely because of the state of her pleadings, I must add the more general observation that where provisional damages are sought, claimants will be well-advised to plead with clarity and specificity the exact medical condition or disease that is to form the contingent event which gives rise to the right to seek further compensation.

[25] In my opinion, the sexual growth deficiency is a clear and severable risk as opposed to mere deterioration or progression of a particular pre-existing illness. If the plaintiff is unable to reach puberty, that would constitute a clear-cut event triggering the right to seek further damages under a provisional damages order. Although the plaintiff is already suffering from some hormonal problems, the medical evidence indicates that the sexual hormonal deficiency would be in the form of a separate and distinct medical condition that she may develop. At this juncture, it is apposite to set out the medical evidence. Dr Goh Siok Ying, the treating doctor, stated in both her affidavit of evidence-in-chief (“AEIC”) and her medical report as follows:

[26] In a subsequent report, Dr Goh stated further:

[27] Similarly, the neurologist Dr Ho King Hee opined as follows:

[28] It is thus clear that there is the possibility that the plaintiff may suffer from sexual hormonal deficiency arising from her head injuries, and this much was not disputed by the defendant, who accepted the medical opinions of the plaintiff’s doctors. The defendant’s main objection was that this is speculative, on the basis that such possibility was not expressed in terms of a percentage of the likelihood that such sexual deficiency will take place, and in particular that the doctors failed to produce any empirical evidence to show the probability of such a condition developing in a case like the plaintiff’s. The first thing to note is that the defendant herself had chosen not to call her own medical experts to show that it is unlikely that such sexual deficiency will take place. Since the defendant was not challenging the medical evidence adduced by the plaintiff, counsel for the defendant decided not to cross-examine the plaintiff’s doctors. The question of what was the percentage probability of sexual hormonal deficiency developing was therefore never put to the doctors in court. Of course, it may be said that the affidavits of the doctors (and their annexed reports), being their written evidence-in-chief, ought to be comprehensive as to the evidence that the plaintiff wants to bring before the court. But doctors preparing medical reports, even if these are for the specific purpose of being used in court proceedings, cannot be expected to be keenly aware of the legal requirements, one of which in this case was contended by the defendant’s counsel to be that the likelihood of the medical condition in question ought to be stated more precisely with supporting empirical data. In any event, it must be remembered that the law on provisional damages in Singapore does not appear to be well-established, with a dearth of local case law, such that what exactly is the nature of the medical evidence that is required to justify such an order being made would not have been clear.

[29] In determining whether the risk is measurable and not fanciful in the present case, what needs to be borne in mind is that there are two specialist doctors (whose medical evidence were not challenged) stating the possibility that the plaintiff may not have spontaneous puberty. Moreover, the sexual hormonal deficiency is clearly related to the growth hormone deficiency which the plaintiff is already suffering from, as they can both be attributed to the injury to her pituitary gland (as Dr Ho’s medical evidence suggests). It should also be pointed out that the threshold for the plaintiff to satisfy is clearly not a high one. In the Willson case, as mentioned above, the judge stated that the chances are measurable no matter how slim they are. And in Munkman on Damages for Personal Injuries and Death (LexisNexis UK, 11th ed., 2004), there is an account of an unreported English decision (O’Kennedy v Harris, 9 July 1990) where a provisional order for damages was made even though there was only a 0.25% risk of the claimant developing epilepsy. Taking these into account, I do not think that the contingency in our present case, ie of the plaintiff not reaching spontaneous puberty, can be said to be fanciful.

[30] It is also worth highlighting again the difference in wording between our local provisions and the English s 32A, in that we have no requirement that the contingency must be “proved” or “admitted”. As Professor Pinsler observed, this indicates that in the Singapore context, the court should take a broad view of the circumstances in deciding whether provisional damages should be awarded (Singapore Court Practice 2006, LexisNexis 2006, at paragraph 37/7-10/3).

[31] Furthermore, it should be apparent that the circumstances under which the court refused to award provisional damages in the English cases referred to by the defendant’s counsel can be easily distinguished. In the Willson case, no provisional order for damages was made because the court found that the development of arthritis to the extent that surgery is required (the trigger event relied upon by the claimant there) was in the nature of a progression of an existing condition rather than a serious deterioration which constituted a clear and severable risk. In contrast, my opinion is that the plaintiff’s possible sexual hormonal deficiency is a clear-cut and independent medical condition that she may suffer in the future. As for Cowan v Kitson Insulations Limited and others, we have seen that it was a case where the claimant himself had decided not to pursue the claim for provisional damages. In fact, the decision is typically cited for the proposition that the claimant who chooses not to claim for provisional damages and instead opt for a once-and-for-all assessment ought not to be penalised for taking that option (see McGregor on Damages (London: Sweet & Maxwell, 17 ed., 2003)). And Adan v Securicor Custodial Services Ltd is a very different case where the claimant was seeking a provisional order for damages in the event that his mental condition improves, which therefore fell outside the operation of the statutory exception to the finality principle.

[33] Finally, I deal with the defendant counsel’s submission that since under s 24 of the Limitation Act (Cap. 163, 1996 Rev Ed) the 3-year time frame will start to run only when the plaintiff ceases to be a minor and turns 21, she effectively has up to 2022 to bring this action and she should therefore have sued much later when there is a clearer picture of her medical condition. The plaintiff met with the accident way back in 2004 when she was only 6 years old. If counsel for the defendant is correct, she would have to wait for around 8 to 10 years before commencing action, because only then would she know with certainty whether she will suffer from sexual hormonal deficiency. But in the meantime, she clearly is suffering from other medical conditions such as the central diapetes insipidus and cortisol deficiency, for which she requires constant and expensive medication. Surely the plaintiff cannot be faulted for bringing an action now to obtain damages in respect of the injuries that she has already sustained, not least because she would need the damages awarded to pay for her medical bills which are being incurred on an ongoing basis.

[34] For the above reasons, my view is that this is an appropriate case where an order for provisional damages ought to be made. Since the contingent event is the onset of spontaneous puberty, and we would know whether it takes place within the next couple of years, a suitable time limit should be imposed for the plaintiff to seek further damages under the order for provisional damages.

[35] I therefore ordered the following: