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Grounds publishedDecided 20 Oct 2015
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High Court

AOD (a minor suing by his litigation representative) v AOE

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[2015] SGHC 272Case no. Suit No 1054 of 2012 (Registrar's Appeals Nos 377 and 383 of 2014)

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  1. George Wei J:

  2. [1] On 6 July 2011, a 9-year old boy, the plaintiff in this case (hereinafter, “the Plaintiff”), was knocked down by a vehicle driven by the defendant (hereinafter, “the Defendant”) along Jurong East Avenue 1. He sustained severe, permanent injuries from the accident. He is now a quadriplegic who requires constant care. His life expectancy has been greatly reduced; doctors estimate that he would live only to the age of 38.

  3. [3] The matter went before the learned assistant registrar (“the AR”) for an assessment of damages. The AR delivered her judgment on 21 November 2014, awarding the Plaintiff a global sum of $1,252,825.86 with interest, and making an award for provisional damages (see [2014] SGHCR 21, hereinafter referred to as “the AR’s Judgment”). Dissatisfied with the AR’s decision, the parties both filed appeals and the matter came before me.

  4. The AR’s order and the parties’ appeals

  5. [4] I now summarise the AR’s order, as well as the parties’ appeals.

  6. AR’s order

  7. [5] For special damages, the AR awarded the Plaintiff the following:

  8. (a) Pre-trial medical expenses agreed at $35,201.12;

  9. (b) Pre-trial transport expenses agreed at $6,500;

  10. (c) Mother’s pre-trial loss of earnings and employer’s Central Provident Fund (“CPF”) contribution at $43,882.80; and

  11. (d) Pre-trial domestic help expenses agreed at $11,994.85.

  12. Total: $97,578.77

  13. [6] For general damages, the AR awarded the Plaintiff the following:

  14. (a) pain and suffering assessed at $190,000;

  15. (b) Plaintiff’s loss of future earnings assessed at $233,878.14;

  16. (c) future medical expenses assessed at $317,380.75;

  17. (d) future expenses for daily consumables and essentials assessed at $46,800;

  18. (e) mother’s loss of future earnings and employer’s CPF contributions assessed at $235,248;

  19. (f) cost of future nursing care assessed at $106,420.20;

  20. (g) future transport expenses assessed at $23,520; and

  21. (h) future cost of Mental Capacity Act application assessed at $2,000.

  22. Total: $1,155,247.09

  23. Grand total: $97,578.77 + $1,155,247.09 = $1,252,825.86

  24. [7] For interest, the AR ordered that interest is to be applied at half of 5.33% on special damages from the date of service of writ to the date of judgment, and interest at 5.33% on general damages for pain and suffering from the date of service of writ to the date of judgment.

  25. [8] The AR also ordered that the Plaintiff may apply for future damages to be assessed if he requires a permanent tracheostomy as a result of contracting pneumonia within three years of her order (“Provisional Damages Order”).

  26. Plaintiff’s appeal

  27. [10] In Registrar’s Appeal No 377 of 2014, the Plaintiff appeals against part of the AR’s award.

  28. [11] In relation to special damages, the Plaintiff appeals against the AR’s award of S$43,882.80 for the mother’s pre-trial loss of earnings and employer’s CPF contribution.

  29. [12] In relation to general damages, the Plaintiff appeals against the following awards:

  30. (a) the Plaintiff’s loss of future earnings assessed at $233,878.14;

  31. (b) future medical expenses assessed at $317,380.75;

  32. (c) future expenses for daily consumables and essentials assessed at $46,800;

  33. (d) mother’s loss of future earnings and employer’s CPF contributions assessed at $235,248;

  34. (e) cost of future nursing care assessed at $106,420.20;

  35. (f) future transport expenses assessed at $23,520; and

  36. (g) future cost of Mental Capacity Act application assessed at $2,000.

  37. [13] The Plaintiff also appeals against the AR’s award of interest. However, no submissions were made on this before me. I therefore find no basis to vary the AR’s award of interest.

  38. Defendant’s appeal

  39. [14] In Registrar’s Appeal No 383 of 2014, the Defendant appeals against the following awards and orders:

  40. (a) the Plaintiff’s loss of future earnings assessed at $233,878.14;

  41. (b) mother’s loss of future earnings and employer’s CPF contributions assessed at $235,248;

  42. (c) the Provisional Damages Order; and

  43. (d) costs fixed at $85,000.00 plus GST.

  44. The issues

  45. [15] In this judgment, I propose to deal with the issues raised on appeal in the following order:

  46. (a) mother’s pre-trial loss of earnings and employer’s CPF contribution at $43,882.80;

  47. (b) future medical expenses assessed at $317,380.75;

  48. (c) cost of future nursing care assessed at $106,420.20;

  49. (d) mother’s loss of future earnings and employer’s CPF contributions assessed at $235,248;

  50. (e) future transport expenses assessed at $23,520;

  51. (f) future expenses for daily consumables and essentials assessed at $46,800;

  52. (g) Plaintiff’s loss of future earnings assessed at $233,878.14;

  53. (h) the Provisional Damages Order;

  54. (i) future cost of Mental Capacity Act application assessed at $2,000; and

  55. (j) costs fixed at $85,000 plus GST and excluding disbursements.

  56. [16] Dealing with the issues in this sequence generally enables me to dispose of the issues which are relatively less complex and more factual in nature, before discussing the heads of appeal that involve more complex questions of law.

  57. [17] For the sake of clarity, I note that there is no appeal on the following awards made by the AR:

  58. (a) pre-trial medical expenses agreed at $35,201.12;

  59. (b) pre-trial transport expenses agreed at $6,500;

  60. (c) pre-trial domestic help expenses agreed at $11,994.85; and

  61. (d) damages for pain and suffering assessed at $190,000.

  62. High Court’s role in a Registrar’s Appeal on assessment of damages

  63. [18] As a preliminary, it is important to clarify the role of a High Court judge who hears an appeal from an assistant registrar on assessment of damages under O 56 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).

  64. [19] The authorities establish that the judge in chambers hears the matter not as an appeal in the true sense of the word, but deals with the Registrar’s Appeal on assessment of damages as if the matter came before him for the first time: Chang Ah Lek v Lim Ah Koon [1998] 3 SLR(R) 551 at [20], affirmed in Tan Boon Heng v Lau Pang Cheng David [2013] 4 SLR 718 (“Tan Boon Heng”) at [16].

  65. [20] Indeed, the Court of Appeal helpfully explained in Tan Boon Heng at [16] that in assessing damages, the assistant registrar is “exercising powers and jurisdiction devolved to him from those vested in a High Court judge”. Therefore, “a judge in chambers who hears a Registrar’s Appeal is not exercising an appellate jurisdiction - for that term would only be accurate and applicable where the appealed decision emanates from an inferior court or tribunal - but confirmatory jurisdiction instead”.

  66. [21] There are practical implications to the fact that the judge in chambers exercises a confirmatory, rather than appellate, jurisdiction. For one, the judge is not confined to interfering with the assistant registrar’s exercise of discretion only if damages were assessed on wrong principles of law or misapprehensions of fact: Tan Boon Heng at [18]. Instead, the judge is entitled to exercise his discretion afresh, while giving due weight to the assistant registrar’s decision: Tan Boon Heng at [21]. Second, the judge also has a wider discretion to admit new evidence and even recall witnesses: Lassiter Ann Masters v To Keng Lam (alias Toh Jeanette) [2004] 2 SLR(R) 392 at [10] and [22]. Indeed, both parties helpfully brought the case Swiss Butchery Pte Ltd v Huber Ernst and others and another suit [2013] 4 SLR 381 to this court’s attention, where the High Court did recall witnesses in a Registrar’s Appeal on assessment of damages.

  67. [22] Whilst the judge can exercise his discretion afresh, unfettered by the assistant registrar’s decision, it must be borne in mind that the assistant registrar still has the advantage of having heard the oral evidence of the witnesses first hand. As the Court of Appeal noted in Tan Boon Heng at [24], a distinction must be drawn between findings of fact based solely on affidavit and documentary evidence, and findings based partly or wholly on oral evidence. The Court of Appeal had made the following observations:

  68. (a) Where the assistant registrar’s findings of fact are based on oral evidence, the standard of review “should be the same as that applied to a trial judge’s factual findings on appeal to the Court of Appeal - so that these findings may be overturned only if they are plainly wrong or against the weight of the evidence”: Tan Boon Heng at [43].

  69. (b) Where the assistant registrar’s findings of fact are based on affidavit and documentary evidence, the judge is in no less advantageous a position, and hence, may make his own findings afresh, unfettered by the assistant registrar’s judgment: Tan Boon Heng at [44].

  70. [23] It is with the above principles in mind, that I consider the present appeals before me.

  71. Mother’s pre-trial loss of earnings

  72. [24] The AR awarded the Plaintiff damages of $43,882.80 for his mother’s pre-trial loss of earnings. I briefly set out her reasoning, which can be found at [102]–[103] of the AR’s Judgment:

  73. [25] The Plaintiff appeals against the multiplier of 29 months and three days used by the AR. He submits that “the multiplier should be assessed from the date of the accident [ie, July 2011] to the end of the assessment hearing in April 2014 (being a period of 33 months and 24 days)”. According to the Plaintiff, the AR was wrong to award the Plaintiff damages under this head only up to the date of the commencement of the assessment hearing on 10 December 2013.

  74. [26] At the hearing before me, the Defendant made no objections to the Plaintiff’s appeal and submissions on this front.

  75. [27] I agree with the Plaintiff that he should have been awarded damages for his mother’s pre-trial loss of earnings up to the end of the assessment hearing in April 2014. The following statement in British Transport Commission v Gourley [1956] AC 185 at 206 is helpful:

  76. [28] Special damages are accordingly those which at trial are capable of substantially exact calculation. This particular head is recoverable on the basis that it is part of the Plaintiff’s loss (see discussion at [86] below). If his mother did not stop work, the Plaintiff would have had to engage a full-time nurse. I note in passing that what is important is that there should be no overlap with the claim for loss of future earnings for the mother (which is dealt with later).

  77. [29] Therefore, I award the Plaintiff $50,970.40 for his mother’s pre-trial loss of earnings. I derive the figure in the following way:

  78. $1,508 x 33 months + $1,508 x 24 days / 30 days = $50,970.40

  79. Appropriate multiplier for future expenses

  80. [30] Before discussing the Plaintiff’s appeal on the damages awarded for the different types of future expenses he would incur, I first deal with the Plaintiff’s appeal on the multiplier that should be applied for future expenses generally. My decision on this would affect the damages awarded for all the heads of claim relating to the Plaintiff’s future expenses.

  81. [31] The AR determined the multiplier for future expenses based on the Plaintiff’s life expectancy at the date of trial. The parties’ medical experts agreed that the Plaintiff had 27 more years to live. The AR’s decision was therefore based on a life expectancy of 27 more years. After considering the case authorities, the AR applied a discount and held that a multiplier of 12 years was fair and reasonable. It is worth noting that before the AR, the Defendant submitted that a multiplier of 12 years should apply, while the Plaintiff submitted that a multiplier of 18 years should apply (27 years subject to a 33% reduction in view of accelerated payment).

  82. [32] The Plaintiff appeals against the AR’s decision that a 12-year multiplier should apply for future expenses generally. On appeal, the Plaintiff submits that the appropriate multiplier should at least be 16 years. The Plaintiff relies on the Court of Appeal’s dicta in Lai Wai Keong Eugene v Loo Wei Yen [2014] 3 SLR 702 (“Lai Wai Keong Eugene”) at [43] that a 15-year multiplier for an appellant with a lifespan of 30 years “while perhaps on the low side, remains within the range contemplated by the authorities”. On this basis, the Plaintiff argues that if a 15-year multiplier is “on the low side” for a plaintiff with 30 years to live, a 16-year multiplier is more appropriate in the present case.

  83. [33] The Court of Appeal in Poh Huat Heng Corp Pte Ltd and others v Hafizul Islam Kofil Uddin [2012] 3 SLR 1003 (“Hafizul”) at [48] and [54] endorsed two possible approaches to determining the appropriate multiplier: the first, is to “fix the multiplier by looking at the multipliers used in comparable cases” (see [48(a)]), and the second, is to “apply a pure arithmetical discount” for accelerated payment, contingencies, inflation, and other vicissitudes of life (see [48(b)]). This was affirmed in Lai Wai Keong Eugene at [19]–[22]. In particular, the Court of Appeal in Lai Wai Keong Eugene clarified that:

  84. (a) The second approach is not invariably to be preferred over the first approach (see [22]).

  85. (b) The court may have to apply the first approach exclusively if evidence on interest rates, inflation rates, possible contingencies etc, are lacking (see [21]).

  86. (c) Even in the application of the second approach, the figure derived should be “cross-checked with the multipliers used in past cases so as to achieve consistency with cases involving similarly-situated plaintiffs” (see [20]).

  87. [34] It is also worth noting the court’s remarks in Hafizul at [54]:

  88. [35] Indeed, it seems to me that in the absence of specific evidence on interest rates, inflation etc, the court has no choice but to rely exclusively on past precedents. Deducing a figure from past cases is undoubtedly not an exact science. There must be no illusion of mathematical precision. There is no rule of law in Singapore stipulating specific rates of discount. The court therefore only has the principles of consistency, proportionality, and its own sense of fairness and justice to guide it in determining the appropriate multiplier.

  89. [36] In the present case, no evidence was provided to the court below, or to me, on the factors a court may consider under the second approach in Hafizul. Neither party attempted to adduce evidence on, for example, the contingencies the Plaintiff was at higher risk of suffering from pre-accident, deposit interest rates, or inflation rates in their submissions on the appropriate multiplier for future expenses. Nothing about the specific facts of the Plaintiff’s case was brought to my attention by either side for especial consideration in determining the appropriate multiplier. I am thus left to broadly decide the appropriate multiplier for future expenses based on case precedents and the general facts before me. I repeat that such an exercise of discretion inevitably involves a broad-brushed exercise of judgment.

  90. [37] In coming to my decision, I took into account the following case precedents:

  91. (a) In Lai Wai Keong Eugene, the Court of Appeal affirmed a 15-year multiplier for a plaintiff with a life expectancy of 30 years, notwithstanding it noted that this was a bit low (see [43]). The plaintiff was 34 years old at the time of the accident.

  92. (b) In Haifizul, the Court of Appeal affirmed an 18-year multiplier for a plaintiff with a life expectancy of 34 years. The plaintiff was 29 years old at the time of the accident (see [72] and [76]).

  93. (c) In TV Media Pte Ltd v De Cruz Andrea Heidi and another appeal [2004] 3 SLR(R) 543 (“TV Media”), the court awarded a 17-year multiplier for a plaintiff with a remaining life expectancy of 51 years. The plaintiff was 27 years old when her liver failed.

  94. (d) In Tan Juay Mui (by his next friend Chew Chwee Kim) v Sher Kuan Hock and another (Liberty Insurance Pte Ltd, co-defendant; Liberty Insurance Pte Ltd and another, third parties) [2012] 3 SLR 496 (“Tan Juay Mui”), the court affirmed a 17-year multiplier for a plaintiff with a life expectancy of 32 years.

  95. (e) In Ang Leng Hock v Leo Ee Ah [2004] 2 SLR(R) 361, a 15-year multiplier (reduced from 20) was awarded to a plaintiff with a life expectancy of approximately 25 to 30 years. The plaintiff was 41 years old at the time of the accident.

  96. [38] I observe that courts seem to generally award a multiplier that is roughly half of the plaintiff’s expected life expectancy. In making this observation, I do not intend in any way to lay down a rule. The circumstances of a particular case may justify deviations and indeed, “outliers” such as TV Media do exist.

  97. [39] Based on the authorities, the AR’s decision on the multiplier of 12-years cannot be said to be wrong as a matter of principle. Nevertheless, I repeat that in the appeals before me, I am entitled to exercise my discretion afresh. Due deference need only be paid to the AR’s judgment where findings of fact based on oral evidence are concerned. The decision on the multiplier certainly was not based on any oral evidence heard by the AR. Bearing in mind the general facts of the present case and the past decisions, the appropriate multiplier in my judgment, is 14 years.

  98. [40] I thus allow the Plaintiff’s appeal (in part), and find that the appropriate multiplier for the Plaintiff’s future expenses generally should be 14 years, and not 12 years.

  99. Future medical expenses

  100. [41] The AR awarded the Plaintiff $317,380.75 for future medical expenses. For clarity, I cite the breakdown of the AR’s award for future medical expenses found at [97] of the AR’s Judgment:

  101. [42] The Plaintiff is only appealing against the awards highlighted in bold. Obviously, his main complaint is that the quantum awarded by the AR is too low for various reasons. The Plaintiff additionally appeals against the AR’s failure to award any damages for outpatient medication. The Defendant is not appealing against the AR’s award for future medical expenses.

  102. [43] I shall consider the Plaintiff’s appeal on future medical expenses in the following order:

  103. (a) limb splints;

  104. (b) treatment for pneumonia;

  105. (c) physiotherapy sessions; and

  106. (d) outpatient medication.

  107. (a) For treatment for URTI, I award the Plaintiff $205,016 instead of the $175,728 awarded by the AR. I derive the figure in the following way:

  108. $523 x 4 days x 7 admissions per year x 14 years = $205,016

  109. (b) For wheelchair costs, I award the Plaintiff $14,000 instead of the $12,000 awarded by the AR. I derive the figure in the following way:

  110. $5,000 per wheelchair x (14-year multiplier / 5 years) = $14,000

  111. (c) For medical consultations, I award the Plaintiff $3,500 instead of the $3,000 awarded by the AR. The evidence was that the rates of each medical review would cost about $100 to $150 for a private hospital. The AR therefore took the average rate of $125 in her calculations. Further, this rate was to be discounted by 50% to reflect lowered rates in restructured hospitals (see [61] of the AR’s Judgment). Bearing the above numbers in mind, I derive the figure in the following way:

  112. 50% x $125 x 4 medical consultations a year x 14 years = $3,500

  113. [45] I now proceed to deal with the other types of future medical expenses.

  114. Limb splints

  115. $100 per limb splint x 4 limb splints x (12-year multiplier / 2 years) = $2,400

  116. [49] Therefore, taking into account a modified 14-year multiplier, I award the Plaintiff $2,800 for limb splints. I derive the figure in the following way:

  117. $100 per limb splint x 4 limb splints x (14-year multiplier / 2 years) = $2,800.

  118. Treatment for pneumonia

  119. [51] Oddly though, she calculated the award for pneumonia treatment as follows (see [90] of the AR’s Judgment):

  120. $530.50 x 8.5 days x 7 incidences = $31,564.75

  121. [53] On appeal, the Plaintiff submits the following:

  122. (a) The cost of hospitalisation per day should be $1046 based on Dr David Low’s estimate that each admission for pneumonia would cost about twice as much as URTI (see [90] of the AR’s Judgment).

  123. (b) The AR should have allowed for 10 incidences, rather than seven incidences of pneumonia, because 10 times is a “reasonable estimate” over a remaining period of 27 years and is a more “cautionary stand”.

  124. [55] Nevertheless, I note that in the AR’s Judgment at [90], she stated

  125. [57] In any case, as I have noted, the Plaintiff’s counsel seems to have conceded his first point on appeal. Therefore, I need not say any more on this.

  126. [58] On the number of incidences of pneumonia that the court should award future medical expenses for, the key question is whether the AR should have discounted the number of incidences indicated by the medical experts to take into account accelerated payment and vicissitudes of life. The Plaintiff made no submissions on the correctness of discounting the number of incidences to take into account accelerated payment and vicissitudes of life. He simply submits that 10 is a “reasonable estimate”, and is more “cautionary”.

  127. [59] No one doubts that 10 incidences of pneumonia is a reasonable estimate. This estimate is based on medical evidence which the AR herself accepted in her judgment. I also do not see how the submission on caution assists me in deciding whether a discount should be applied. Of course, the higher the number, the more “cautionary” the award would naturally be from the Plaintiff’s perspective. But this cannot mean that I award the Plaintiff damages for as high a number of incidences of pneumonia that I reasonably can. This would be unfair to the Defendant.

  128. [60] On balance, apart from the fact that the AR wrongly used the figure of “$530.50” instead of “$523” as the daily hospitalisation rate, I do not see anything wrong with the AR applying a discount to the number of incidences of pneumonia on account of accelerated payment and vicissitudes of life. This seems to be in accordance with well-established principles on discounting damages awarded in view of the fact that a plaintiff often receives an award in one lump sum, upfront. I therefore revise the AR’s award for pneumonia treatment to $31,118.50 ($523 x 8.5 days x 7 incidences = $31,118.50).

  129. Physiotherapy sessions

  130. [61] The evidence shows that the Plaintiff will need physiotherapy on a regular basis for the rest of his life. However, the Plaintiff will also need more intensive physiotherapy after his tenotomy surgeries. The AR allowed for two physiotherapy sessions a month for the rest of the Plaintiff’s life. I set out her reasoning on this (at [91]–[92] of the AR’s Judgment):

  131. [62] It is clear that the AR took into account the need for more intense physiotherapy in awarding the Plaintiff damages for two physiotherapy sessions a month.

  132. [63] On appeal, the Plaintiff submits the following:

  133. (a) The AR wrongly failed to make an award for the more intensive physiotherapy sessions needed after the two tenotomy surgeries.

  134. (b) In the alternative, if the AR did factor in the need for more intensive physiotherapy in her overall award of two physiotherapy sessions per month, this is insufficient.

  135. [64] It is clear that the first submission is wrong. As I stated above, the AR did consider the need for more intensive rehabilitation after the tenotomy procedures in her award. In support of his alternative submission, the Plaintiff highlighted to the court that after each tenotomy surgery, “Professor Ong recommended 3 to 5 times a week and Dr Low recommended 2 to 4 times a month for an intensified period of 3 to 6 months”. The Plaintiff took the position that two physiotherapy sessions a month was the appropriate award for “usual rehabilitation”. An additional award must be given above and beyond the two monthly sessions for the “intensified period”. The Plaintiff submitted that in determining this additional award, the court should take the average of the highest medical estimate (ie, five times a week or 20 times a month) and the lowest medical estimate (ie, two times a month), which is 11 times a month.

  136. [65] On the whole, I find many problems with the Plaintiff’s submissions. I uphold the AR’s award of two sessions per month for the following reasons:

  137. (a) The Plaintiff has no basis to submit that two physiotherapy sessions a month is the appropriate award for “usual rehabilitation”. The AR cited medical evidence from Dr David Low that 1.5 sessions per month is the “historical baseline”. The Plaintiff did not dispute this in his appeal.

  138. (b) The award of two physiotherapy sessions per month for the rest of the Plaintiff’s life is already very generous. This is an additional 162 sessions above the usual 1.5 sessions a month (0.5 additional session per month x 12 months x 27 years = 162). This is far more than the Plaintiff’s estimate of the 99 additional physiotherapy sessions needed for post tetonomy recovery.

  139. (c) The Plaintiff has cited no proof that Professor Ong recommends three to five sessions of additional rehabilitation a week. The AR cited Dr Low’s estimate of two to four sessions a month during the intensification period, and Professor Ong’s estimate of two physiotherapy sessions per month for the rest of the Plaintiff’s life. I will not disturb the AR’s finding without more concrete evidence that her award is erroneous.

  140. [66] Moreover, while this is not necessary to my decision, I point out that if the Plaintiff were correct, the estimates given by Professor Ong and Dr Low seem vastly at odds with each other. The former estimates 12 to 20 sessions a month, while the latter only two to four. If I had to decide this for myself, I would have had to decide which estimate is right. Taking the average of the highest estimate (20) and the lowest estimate (two) as proposed by the Plaintiff does not seem to me to be the correct approach to take.

  141. [67] In any case, given the Defendant did not appeal on this, and there is no doubt in my mind that the AR’s award of two physiotherapy sessions per month is fair and reasonable, I shall not disturb the AR’s finding that on the whole, two physiotherapy sessions per month should be awarded.

  142. [68] The Plaintiff also makes the point that the multiplier used to calculate the award for physiotherapy sessions should not be 12 years. On this, I agree that the AR’s award must be altered in light of my holding that the appropriate multiplier for future expenses generally is 14 years.

  143. [69] Therefore, taking into account a modified 14-year multiplier, I award the Plaintiff $59,136 for physiotherapy sessions. I derive the figure in the following way:

  144. $176 per session x 2 sessions x 12 months x 14-year multiplier = $59,136

  145. Outpatient medication

  146. [70] The Plaintiff submits that the AR omitted to award damages for outpatient medication, necessary after hospitalisation for URTI and pneumonia. To assist the court in calculating the quantum of outpatient medication, the Plaintiff submits the following facts:

  147. (a) The cost for outpatient medication is between $10 and $20 per day.

  148. (b) One week of outpatient medication is necessary after each hospitalisation.

  149. [71] On that basis, the Plaintiff submits that $7,840 should be awarded for post-URTI medication, and $700 should be awarded for post-pneumonia medication. I reproduce the table the Plaintiff put in his submissions to explain how the figures were calculated:

  150. [72] I note that no evidence was offered to the court on any of the above figures. I find this rather unsatisfactory. However, during the hearing before me, the Defendant concedes outpatient medication appears to have been missed out by the AR, and did not object to either the award or the quantum of outpatient medication claimed by the Plaintiff. I therefore assume that the parties agree on the accuracy of the above figures.

  151. [73] On my part, in fairness to the Defendant, I would make the following amendments to the figures the Plaintiff proposed based on the facts I have before me:

  152. (a) On the Plaintiff’s own case, the cost of medication per day ranges from $10 to $20. The average cost of medication per day is therefore $15. While the Plaintiff does not explain why he applies a 50% discount in the table he submits, I assume this is because the figures he submits are based on private rates rather than restructured hospital rates. I would award $7.50 per day for medication rather than $10 on the basis that there is no justification in using the upper limit of the cost of medication.

  153. (b) As decided previously, taking into account accelerated payment and vicissitudes of life, the number of incidences of pneumonia which the court will award damages for is seven, not 10.

  154. (c) The appropriate multiplier to apply is 14, not 16.

  155. [74] I therefore award the Plaintiff a total of $5,512.50 for outpatient medication. I shall use the table format used by the Plaintiff to explain how I derived the above figure:

  156. Conclusion on future medical expenses

  157. [75] On the whole, I partially allow the Plaintiff’s appeal on future medical expenses. I summarise my holdings on future medical expenses in the table below:

  158. [76] I have reflected the amended sums in bold for clarity.

  159. Cost of future nursing care

  160. [77] There are two aspects to the award for future nursing care. The first concerns a full-time stay home domestic helper. The second concerns a private or auxiliary nurse that would be engaged for one month each year to give the main caregivers (ie, the mother and the domestic helper) some time off. This is to prevent caregiver burnout.

  161. Domestic helper

  162. (a) $480 for monthly salary;

  163. (b) $83.85 for monthly maid levy;

  164. (c) $80 monthly for food, medical bills and lodging;

  165. (d) $200 contract renewal fee once every two years;

  166. (e) $300 return air ticket once every two years; and

  167. (f) $321 for insurance premiums payable once every two years.

  168. [80] The Plaintiff appeals against the 50% discount applied as well as the 12-year multiplier. I have already determined that the appropriate multiplier should be 14 years. The only issue left for me to determine is whether the 50% discount was correctly applied. On this, the Plaintiff submits the following:

  169. (a) The consensus of the medical experts is that the Plaintiff needs two caregivers and auxiliary help for the rest of his life.

  170. (b) The maid was engaged for the predominant purpose of assisting the Plaintiff’s mother take care of the Plaintiff.

  171. (c) While it is not denied that the maid helps out with household work, she does so only from time to time. Moreover, the maid’s involvement in the Plaintiff’s care would inevitably increase as the Plaintiff grows in size and weight.

  172. ($480 + $83.85 + $80) x 12 months x 14-year multiplier = $108,166.80

  173. ($200 + $300 + $321) x 14-year multiplier / 2 years = $5,747

  174. Total = $108,166.80 + $5,747 = $113,913.80

  175. Private nurse

  176. $160 per day x 30 days a month x 14-year multiplier = $67,200

  177. Conclusion on cost of future nursing care

  178. Mother’s loss of future earnings

  179. [86] The Plaintiff’s mother has since stopped work and become a full-time caregiver to the Plaintiff. While this is undoubtedly a significant drain on her, the AR correctly noted that under this head of damage, we are concerned not with loss to the mother, but loss to the Plaintiff: Lee Wei Kong (by his litigation representative Lee Swee Chit) v Ng Siok Tong [2012] 2 SLR 85 (“Lee Wei Kong (CA)”) at [53].

  180. [88] I note that whilst the House of Lords in Hunt v Severs did overrule Donnelly v Joyce, this was in respect of the holding in the latter case that it was irrelevant to consider the identity of the source from which the need for nursing or care services was met. In Hunt v Severs, the House of Lords held that where the provider of the nursing or care services is the tortfeasor, there was no ground in public policy to require the tortfeasor to pay damages to the Plaintiff in respect of services which he himself has rendered. This was because the House of Lords took the view that the underlying rationale of awarding damages on this front is to enable the voluntary carer to receive proper recompense for the services. That being so, the House of Lords’ conclusion was that a plaintiff who recovers damages under this head should hold them on trust for the voluntary carer.

  181. [89] Indeed, I note that regardless of the controversy in England about whether such damages for such services should be held on trust for the caregiver, the position in Singapore is that the plaintiff may directly recover the reasonable value of such gratuitous services rendered as damages. In any case, this issue was never raised by the parties in the appeal and I therefore need not explore it any further.

  182. [91] The AR adopted the multiplicand of $1,508 per month in computing the mother’s loss of future earnings. This was based on the mother’s last drawn salary before the accident. At that time, she was working as a receptionist at a law firm drawing a monthly salary of $1,300 with employer’s CPF contributions of $208 per month.

  183. [92] The gravamen of the Defendant’s complaint is that the AR wrongly used the mother’s last drawn salary as the multiplicand. The Defendant submits that the evidence strongly suggests that the mother would have stopped working. The evidence includes the following:

  184. (a) The Plaintiff’s mother admitted in cross-examination on 10 December 2013 that it was her inclination to stay at home and look after the children even if the accident did not happen. While she did change her testimony when examined on 13 December 2013 to say that she intended to work her whole life, the Defendant submits that this is untruthful, self-serving testimony.

  185. (b) The Plaintiff’s mother’s history of employment suggests that she only works during periods when her husband is irresponsible and is not earning a wage to support the family (she has had three husbands so far). Her present husband earns a wage to support the family. This suggests the Plaintiff’s mother is likely to have left her job even if the accident did not take place.

  186. (c) Since 1992, the time she left school to enter the workforce, the Plaintiff’s mother has only worked for approximately eight years.

  187. [93] Based on the above evidence, the Defendant submits that the appropriate multiplicand to adopt is that which is adopted for homemakers. According to the Defendant, on the authority of Toon Chee Meng Eddie v Yeap Chin Hon [1993] 1 SLR(R) 407 (“Eddie Toon”), this is a figure of about $300. I note that the AR did consider this submission in her judgment, but dismissed it on the ground of other authorities which suggest that the court should not presume the mother would eventually quit work and stay at home.

  188. [94] From the above, two issues arise for my consideration:

  189. (a) In assessing the cost of care based on loss of future earnings, to what extent should the court speculate whether a caregiver who was working at the time of the accident would continue to work had the accident not taken place?

  190. (b) To what extent should the cost of a caregiver’s care be assessed based on his or her loss of future earnings? Related to that, how should we compute the cost of a homemaker’s caregiving?

  191. Speculation about a caregiver’s continued employment

  192. [95] The starting point of this inquiry is the objective of achieving a fair and reasonable assessment of the loss incurred by the Plaintiff in having been reduced to a state where he requires his mother’s full-time care. Naturally, the court needs to be fully apprised of all relevant facts.

  193. [96] Where the full-time nursing care is provided by a homemaker, it is established that the court should endeavour to award a reasonable and fair value to the Plaintiff as damages. Eddie Toon is relied on by the Defendant for the proposition that the appropriate multiplicand in such a case is the figure generally adopted for homemakers (around $300 per month). On the other hand, where full-time nursing care is provided by an income-earning parent (who had to give up work), the Plaintiff asserts that the assessment is generally based on the income which that parent earned but can no longer earn. This may well be considerably more than the figure that is said to have been generally adopted for homemakers.

  194. (a) Was the caregiver gainfully employed prior to the provision of gratuitous care?

  195. (b) What were the caregiver’s employment prospects, and related to that, whether there was any likelihood that the homemaker turned caregiver would have entered the work-force in the future but for the injuries suffered by the plaintiff,

  196. (c) If the caregiver had continued working, how much the care-giver would have earned as salary.

  197. (d) The cost of engaging third-party full-time care, whether by means of a domestic helper (where this is appropriate given a plaintiff’s needs), a professional nurse, or institutionalised care.

  198. [98] This list may not be exhaustive – other factors may well be relevant. Whilst it may be said that the above fact finding exercise involves a good deal of “speculation”, it cannot be denied that the court is often compelled by the circumstances of the cases it hears, to make “considered” speculative findings of fact.

  199. [99] Indeed, the AR considered the factual question of whether the Plaintiff’s mother would have continued working if the accident did not take place. From my reading of the AR’s Judgment, the conclusion was that there is insufficient evidence that the mother would have chosen to become a homemaker. In other words, the AR basically made a finding of fact that the mother would have continued working at her pre-accident salary of $1,508 per month (as per the status quo before the accident) if the accident did not take place. It is to this factual finding that I now turn.

  200. [100] The AR stated at [107] of her judgment that “it was complete speculation on the part of the defendant to suggest that the mother would have chosen to be a homemaker”. She cited Teo Ai Ling (by her next friend Chua Wee Bee) v Koh Chai Kwang [2010] 2 SLR 1037 (“Teo Ai Ling”) at [74], where Steven Chong JC (as he then was) held:

  201. [101] Teo Ai Ling rightly cautions the courts not to assume that women will stop work simply because of their gender and the homemaker role a woman is traditionally thought to play. This is clearly correct. There is no basis for a court to assume that a caregiver is likely to quit her job just because of her gender. That said, Teo Ai Ling does not go so far as to state that it is never proper to take into account the continued employment prospects of the person who had to leave work to provide full-time care. For example, if there is clear evidence that the caregiver whilst employed at the time when the need for care arose, had already tendered a 3-month resignation notice, such evidence should not be ignored.

  202. [102] I therefore turn to the actual evidence before me, and ask whether the Plaintiff’s mother would have stopped work.

  203. [103] I outlined the evidence that the Defendant would like me to take into account at [92] of this judgment. In my view, the evidence is insufficient to justify a finding of fact that the Plaintiff’s mother would have become a homemaker for the rest of her life even if the accident had not taken place. I accept that the Plaintiff’s mother has not consistently been in the workforce and that her present husband may be responsibly supporting the family. I also accept that she may personally prefer to be a homemaker if circumstances permit. However, she was holding a full-time job before the accident, and there is nothing to suggest that she would have quit in the near or foreseeable future.

  204. [104] In short, it is not possible to determine on a balance of probabilities that she would have quit her job if the accident had not taken place. Moreover, given that it is the AR who heard the evidence from the mother first hand, I find it appropriate to defer to her judgment that on the evidence, it was “complete speculation” to suggest the Plaintiff’s mother would have quit her job. There is no reason to disturb the AR’s factual finding.

  205. [105] It might fairly be said that evidence to positively support the fact that the Plaintiff’s mother would have continued working at a monthly salary of $1,508 if the accident did not take place is equally lacking. The Defendant points to the possibility that the Plaintiff’s mother may not have been able to keep such a well-paying job, as well as the fact that she might choose to quit her job (as previously mentioned). I fully accept that these are possibilities. However, it appears that the starting point the courts have adopted in assessing the loss of future income as a result of an accident is the caregiver’s or the victim’s pre-accident income: see for example Donnelly v Joyce, cited in approval in Ang Eng Lee and another v Lim Lye Soon [1985-1986] SLR(R) 931 at [10] – [11].

  206. [106] The court rightly tries to avoid speculation as to whether the caregiver or victim in question is likely to find a better job, to be fired, or to eventually quit her job. The starting point is that the pre-accident status quo is presumed to continue unless there is clear evidence to the contrary. It must follow that when a court is asked by the parties to make a finding of fact as to whether a particular victim or caregiver would have, on a balance of probabilities, continued in employment at a particular income, the court may start by assuming that status quo would continue. It is for the other party to then displace this initial presumption with contrary evidence. In the present case, I affirm the AR’s decision that there is insufficient contrary evidence to displace the presumption that the pre-accident status quo would have continued.

  207. Assessing the cost of a caregiver’s care

  208. [109] While Lee Wei Kong (HC) has been substantially overturned by the Court of Appeal in Lee Wei Kong (CA), I note that the above dicta was not disapproved of, and remains instructive (see Lee Wei Kong (CA) at [63]–[64]).

  209. [113] The final local case I consider on this point is Eddie Toon. In Eddie Toon, the learned assistant registrar had awarded the plaintiff a sum of $480,600 for future nursing care. The award was based on there being two stages of care. The first is when the plaintiff is nursed at home with home nursing care in the day as well as full-time parental care. The second is when the plaintiff’s parents are no longer able to take care of him. The breakdown of the assistant registrar’s award for future nursing care was as follows (see Eddie Toon at [30]–[32]):

  210. (a) $405,000 – costs of home nursing care during the first stage using a multiplier of 9 years, and a multiplicand of $125 a day, which is the daily cost of engaging a private nurse.

  211. (b) $32,400 – the cost of the mother’s services during the first stage in lieu of a private nurse who should be employed for the night shift. A multiplicand of $300 per month was used.

  212. (c) $43,200 – the cost of institutional nursing care during the second stage when the plaintiff’s parents can no longer take care of him. A multiplier of 6 years and a multiplicand of $1,500 per month were used (with a 60% deduction for the “domestic element”, being the cost of food and accommodation the Plaintiff would have had to incur even without the accident).

  213. [115] Goh JC first established that the burden of proving that it is reasonable for the plaintiff to be cared for at home lay on the plaintiff: Eddie Toon at [34]. He then found that engaging a private nurse for the purposes of providing home nursing care during the first stage of care was not a reasonable expense. He reasoned that institutional nursing care was a viable option because the plaintiff’s mother could attend to him daily if she wished: Eddie Toon at [36]. Moreover, if the plaintiff’s mother wished to continue to care for the plaintiff at home, she could engage a maid to assist her. Engaging a private nurse was not necessary because the plaintiff’s mother had been providing excellent nursing care to the plaintiff from the time of the accident till the date of the assessment: Eddie Toon at [37].

  214. [116] Goh JC then calculated the appropriate award for future nursing care assuming the plaintiff was cared for at home with the assistance of a domestic maid, and found this to come up to a global figure of $141,000: Eddie Toon at [40]. He calculated the alternative award assuming the plaintiff received institutional nursing care for the rest of his life (ie, during both the first and the second stages of care). He provided for the travelling expenses the plaintiff’s mother would incur in making daily visits to the nursing home, and found that this would produce an aggregate sum of $162,000: Eddie Toon at [41]–[44]. Having arrived at the two figures, Goh JC, referring to the award of $162,000, held at [44]:

  215. [117] Based on the reasoning above, Goh JC set aside the assistant registrar’s award of $480,600 and substituted it with an award of $162,000. Two points may be gleaned from Goh JC’s analysis in Eddie Toon:

  216. (a) First, the court will apply a test of reasonableness in determining the type of nursing care the plaintiff may be compensated for. Hence, where one mode of care (eg, home nursing care) is far costlier than other equivalent modes of care, the court will be reluctant to calculate compensation on that basis. This is in line with Kan J’s dicta in Lee Wei Kong (HC). Even so, I note in passing that in assessing the home-care option as opposed to institutional care, the court must have regard to any non-monetary advantages of home-care by a private nurse or a parent.

  217. (b) Second, the court will not necessarily determine the award for the future cost of nursing care based on the cheapest possible mode of care. It is not clear why, of the two reasonable alternative modes of care, Goh JC decided to base his award on the more costly mode of care (ie, on the assumption of institutional nursing care). That said, the court must consider all the possible reasonable nursing care options the plaintiff has before deciding on the basis upon which it makes its award. Indeed, this seems to have been the point Choo J was making in Chong Hwa Yin at [11].

  218. [121] Both approaches seek to provide proper recompense for the services provided gratuitously by a family carer. As May LJ held in Evans v Pontypridd Roofing Limited [2002] P.I.Q.R. Q5 (“Evans v Pontypridd”) at [25]:

  219. [122] Indeed, the principle that an objective of the assessment is to provide proper recompense to the caregiver comes from Housecroft v Burnett [1986] 1 All ER 332 (“Housecroft v Burnett”). O’Connor LJ held at 343:

  220. [123] While the objective of providing reasonable recompense to the caregiver is clear and undisputed, it is noted that O’Connor LJ framed this objective within the overall goal of making sufficient provision for the plaintiff’s needs. For this reason, the question was also asked: “is it sufficient for this plaintiff should her mother fall by the wayside and be unable to give as she gives now”.

  221. [128] In deciding that only a 25% rather than a one-third deduction should be made in Fairhurst, the court took into account the fact that the parents in Fairhurst had to acquire special skills to take care of the plaintiff. The parents’ services were thus valued “somewhat closer to the full commercial rate than might otherwise have been appropriate”. This reasoning was affirmed in Evans v Pontypridd at [37], and the court additionally stated that it would also take into account the possibility that “the services of the gratuitous carer may not be available for the entire period upon which the assessment is based” in determining the appropriate discount to apply.

  222. [129] Having laid out the two approaches adopted by English courts in different cases, the important, and perhaps trickier, question is how they interact.

  223. [130] First, O’Connor LJ in Housecroft v Burnett held at 343 that while a plaintiff’s caregiver’s loss of income may be the basis for computing the award for past and future care, “[t]he ceiling would be the commercial rate” of the caregiving services provided. By contrast, where the caregiver’s loss of income is less than the discounted commercial rate of obtaining caregiving services, the courts have in some instances decided to award the plaintiff the lower figure: see Fitzgerald v Ford.

  224. [134] The learned author of Harvey McGregor, QC, McGregor on Damages (Sweet & Maxwell, 19 Ed, 2014) (“McGregor on Damages”) considered this problem and argues at para 38-231:

  225. [139] Coming back to the case authorities in Singapore, the Court of Appeal established in Lee Wei Kong (CA) that in assessing the value of the gratuitous caregiver’s care, the caregiver’s loss of income should be the starting point. I am bound by this authority.

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