High Court · Decided 21 November 2014

AOD, a minor suing by the litigation representative v AOE

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[2014] SGHCR 21Case no. Suit No 1054 of 2012

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Laws this judgment relies on

Mental Capacity Act 2008

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Official text from eLitigation

Jean Chan Lay Koon AR:
Background facts
[1] This is an assessment of damages arising from a very unfortunate road traffic accident that occurred on 6 July 2011 along Jurong East Avenue 1. The plaintiff was crossing the road at a signalised pedestrian crossing when he was knocked down by the vehicle driven by the defendant. At the time of the accident, the plaintiff was only nine years of age. He sustained severe traumatic brain injury from the accident and he was conveyed to the National University of Singapore Hospital (“NUH”) in an unconscious state. At the point of admission, his Glasgow Coma Score was six.
[3] The plaintiff was born on 4 March 2002. He was a primary three student at the time of the accident. At the time of the assessment, he was 12 years old. As a result of the accident, the plaintiff suffered from irreparable brain damage which caused him severe permanent disabilities. He became a quadriplegic and required constant care for all his activities of daily living. His mother had to quit her job as a receptionist in a law firm to take care of him at home on a full time basis. She is currently assisted by a domestic maid.
[4] The various heads of claims sought by the plaintiff against the defendant are as follows:
(a) Pain and suffering and loss of amenities;
(b) Loss of future earnings of the plaintiff;
(c) Future medical expenses;
(d) Future expenses for daily consumables and other essentials;
(e) Loss of pre-trial and future earnings of the mother;
(f) Future cost of nursing care;
(g) Future transport expenses;
(h) Cost of Mental Capacity Act application; and
(i) Special damages.
[5] I shall now deal with each of the heads of claims.
Pain and suffering and loss of amenities
[6] It is trite law that the award for the head of damage called pain and suffering compensates victims for the pain they endure, the distress of knowing their disablement and the loss of enjoyment of life generally. The victim’s awareness of pain and distress is a major factor to be taken into account: Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174; [1979] 2 All ER 910.
[7] Damages in respect of pain and suffering is awarded for both future pain and suffering as well as for what the plaintiff has already endured: Birkett v Hayes [1982] 1 WLR 816; TV Media Pte Ltd v De Cruz Andrea Heidi & Anor Appeal [2004] 3 SLR(R) 543 (“TV Media Pte Ltd”) at [166]. As far as future pain and suffering is concerned, the Court has to bear in mind these factors in awarding damages: (a) the risk of future deterioration or improvement in the plaintiff’s condition; (b) how long any pain and suffering is likely to be endured; (c) how long the plaintiff is likely to live; and (d) whether any future treatment is likely to be necessary and if so, the nature of such treatment and how it will affect the plaintiff.
[8] It is also well-established that in deciding the proper quantum of damages, reference should be made to the precedents available. However, as observed by the Court in Nirumalan V Kanapathi Pillay v Teo Eng Chuan [2003] 3 SLR(R) 601, the application of precedents to a specific case is not a straightforward exercise. There are often only brief descriptions of the injuries and residual disabilities sustained by the plaintiffs in the cases and allowances have to be made for the ages of the awards and the injured persons.
[9] While as a matter of practice the courts in Singapore have often lumped the claim for “pain and suffering” together with that for “loss of amenities”, they are not the same and neither is one subsumed under the other: Tan Kok Lam (next friend to Teng Eng) v Hong Choon Peng [2001] 1 SLR(R) 786 (“Tan Kok Lam”). The Court of Appeal in Tan Kok Lam held at [28]:
[10] The above was subsequently clarified by the learned Judith Prakash J in Tan Juay Mui (by his next friend Chew Chee Kim) v Sher Kuan Hock and another (Liberty Insurance Pte Ltd, co-defendant; Liberty Insurance Pte Ltd and another, this parties) [2012] 3 SLR 496 (“Tan Juay Mui”) at [30] that what the Court of Appeal meant in Tan Kok Lam was that the greatest loss of amenities which a living person can suffer was to be put into a vegetative state and that such loss must be properly compensated, although the sufferer would not be entitled to a substantial award for pain and suffering due to his inability to feel the same.
[11] Bearing the above principles in mind, I now turn to the facts of present case. A total of five medical experts were called to testify at the assessment hearing. The plaintiff called four medical experts as his witnesses:
(a) Associate Professor Ong Hian Tat (“Professor Ong”), Senior Consultant, Division of Paediatric Neurology, NUH;
(b) Dr David Low Chyi Yeu (“Dr David Low”), Consultant, Department of Neurological Service, KK Women’s and Children’s Hospital (“KKH”);
(c) Dr Goh Yu-Ching Keith (“Dr Keith Goh”), Consultant Neurosurgeon, International Neuro Associates Pte Ltd;
(d) Associate Professor Henry Tan Kun Kiaang (“Professor Henry Tan”), Head and Senior Consultant, Department of Otolaryngology, KKH.
The defendant called one medical expert, Dr Ho Kee Hang (“Dr Ho”), Consultant Neurosurgeon, K H Ho Neurosurgery, as his witness.
[12] Based on the NUH medical report prepared by Professor Ong, preliminary CT brain scan and X-ray results showed that the plaintiff sustained the following main injuries from the accident:
(a) Several haemorrhagic contusions with acute subarachnoid haemorrhage with intraventricular involvements as well as small amount of subdural bleeding;
(b) Cerebral edema and early hydrocephalus;
(c) Multiple pulmonary contusions with small pneumothoraces seen on CT thorax; and
(d) Abrasions over the left forehead and temple;
[13] The plaintiff underwent emergency insertion of a right external ventricular drain (“EVD”) on the same day of the accident. Neuroprotective measures were employed in the Paediatric Intensive Care Unit (“PICU”) to reduce cerebral edema and to maintain adequate cerebral perfusion pressure. This included the initiation and maintenance of thiopentone coma for 11 days. He also required inotropic support in the PICU, which was weaned off after discontinuation of the thiopentone coma. He was also started on valproic acid as his electroencephalogram (“EEG”) test showed severe diffuse encephalopathy with multiple epileptogenic foci.
[14] The plaintiff also suffered from several complications during his stay at the PICU, which included blockage of EVD with resultant raised intracranial pressures, requiring two further revisions of EVD on 17 July 2011 and 22 July 2011. Eventually, a right ventriculo-peritoneal shunt was inserted on 3 August 2011. He also required ventilatory support in PICU and this was complicated by an episode of ventilator associated pneumonia on 10 July 2011. In view of prolonged ventilation, he underwent tracheotomy on 17 July 2011. He was successfully weaned off ventilatory support on 21 July 2011.
[15] The plaintiff subsequently had spontaneous eye movement and occasional movements of his upper limbs. Inpatient neurological rehabilitation was later commenced. The plaintiff was unable to track visually and had bilateral palsy of the 6 cranial nerves. Visual and auditory tests conducted suggested that the plaintiff suffered from cortical blindness and right-sided hearing loss. He also developed significant hypertonia in all four limbs with contractures in his upper and lower limb joints. His head was slightly rotated to the left due to contraction of the left sternocleidomastoid muscle. He had Botox injection of the left wrist joint to lessen the spasticity and he was started on baclofen and clonazepam.
[16] The plaintiff was transferred from PICU to the general ward on 19 August 2011 for continued rehabilitation. The plaintiff’s mother was given caregiver training in tracheostomy care, suctioning and change, nasogastric tube feeding and limb physiotherapy during the plaintiff’s stay in the general ward. After more than three months of in-patient treatment and rehabilitation in NUH, the plaintiff was discharged on 19 October 2011. At the time of discharge, the plaintiff was non-ambulant and required constant care and assistance in all aspects of his activities of daily living. Sometime in June 2012, the plaintiff was transferred to KKH for follow-up and treatment. He has since been under the care and treatment of KKH.
[17] Clearly, the accident had adversely affected the plaintiff and the lives of his family members. Prior to the accident, the plaintiff was a healthy and active boy who loved to cycle, play football and video games. He was able to perform his daily activities without much problem or assistance. He is now a quadriplegic and is on nasogastric tube feeding. He previously required a tracheostomy tube for breathing. Between the first and second tranches of the assessment hearing, the plaintiff was successfully decannulated i.e. the tracheostomy tube was removed, in April 2014.
[18] There was consensus between the plaintiff’s and the defendant’s medical experts that the plaintiff would have a life expectancy of 27 years and he would live up to 38 years old. In terms of motor skills, the plaintiff was like a six-month-old baby; and in terms of sensory, thinking and language skills, he was assessed to be the equivalent of a 12-month-old baby.
[19] The plaintiff claimed $280,000 for pain and suffering and loss of amenities. In support of the claim, the plaintiff relied on the following cases. In the first case of Toon Chee Meng Eddie v Yeap Chin Hon [1993] 2 SLR 536 (“Eddie Toon”), a seven-year-old boy was awarded $160,000 for pain and suffering and loss of amenities of life after a road accident left him with irreparable brain damage, paralysis on the right side and a very slim chance of being able to speak again. He needed assistance to micturate and defecate. He similarly had the intellectual ability of a six-month-old to one-year-old baby and was wheelchair-bound.
[20] In the second case of Kwok Seng Fatt Jeremy v Choy Chee Hau (“Jeremy Kwok”) [2003] SGHC 308, the court awarded $202,000 for fracture dislocation of T7 vertebrae resulting in paralysis below T6, fracture of right clavicle, fracture of right 2, 4 and 5 ribs with right haemopneumothorax, multiple abrasions, right brachial plexus injury, loss of sexual functions and reactive depression. In the third case cited by the plaintiff, Lai Wai Keong Eugene v Loo Wei Yen (“Lai Wai Keong Eugene”) [2012] SGHCR 8, the Court awarded $200,000 for complete spinal cord injury from traumatic T4/T5 fracture with cord compression, causing paraplegia from upper chest downwards; multiple fractures of thoracic spine; fractures of bilateral ribs; bilateral pneumothoraxes, and left haemothorax.
[21] Finally, in Ramesh s/o Ayakanno (suing by the committee of the person and the estate, Ramiah Naragatha Vally) v Chua Gim Hock (“Ramesh s/o Ayakanno”) [2008] SGHC 33, the court awarded the sum of $185,000 for severe head injuries to both sides of the brain, requiring bilateral craniectomies, shunting defects requiring VP shunting, refractory seizures and sepis trachypnoea; bilateral cord palsy requiring tracheostomy; difficulty in swallowing requiring PEG tube insertion; deranges liver functions and sepis; left iliac bone fracture; disc protrusions at different levels of dorsal spine causing cord compression, for which laminectomy was performed; and contractures of lower limb requiring tendorachilles lengthening.
[22] The plaintiff submitted that the injuries in this case were more severe than the foregoing cases and the total compensation for this head of claim should therefore be $280,000. The defendant contended that the sum of $180,000 was adequate compensation for the pain and suffering and loss of amenities caused in this case. The defendant highlighted that the injuries in this case were mainly neurological-related and the plaintiff did not sustain any fracture to his cervical spine, lumbar spine, chest, abdomen or pelvis. The defendant similarly relied on the case of Eddie Toon and submitted that there were many similarities between the cases and like cases should be treated alike. However, the case of Ramesh s/o Ayakanno should be distinguished as the plaintiff in the present case did not sustain additional injuries to his liver or fractures to his pelvis (iliac bone) and spinal cord, which injuries were sustained by the plaintiff in Ramesh s/o Ayakanno. The additional injuries would have been taken into account by the High Court in its final award of $185,000. In summary, the defendant contented that the injuries sustained in Ramesh s/o Ayakanno were more severe and the award in this case should therefore be less than $185,000. Given the similarities between this case and Eddie Toon which was decided in 1993, the defendant submitted the appropriate compensation for pain and suffering and loss of amenities should be $180,000.
[23] The defendant further distinguished the cases of Jeremy Kwok and Lai Wai Keong Eugene on the basis that the plaintiffs in these two cases were adults who had sustained severe orthopaedic injuries which left them paralysed. They did not suffer from any brain injuries which would have rendered him unaware of their difficult circumstances. In fact, the two plaintiffs were fully aware of their physical disabilities and suffered from depression as a result. The defendant cited the case of Chong Hwa Yin v Estate of Loh Hon Fock, deceased (“Chong Hwa Yin”) [2006] 3 SLR(R) 211, where the High Court held at [7]:
[24] I agreed with the defendant that the cases of Jeremy Kwok and Lai Wai Keong Eugene were not suitable case precedents as the injuries and the consequences resulting from the injuries sustained were different from the present case. The plaintiffs were young adults in their prime at the time of their accidents and as a result of their severe orthopaedic injuries, both plaintiffs were severely paralysed but their mental faculties were unaffected. Their life expectancies were also not significantly reduced. The plaintiff in Jeremy Kwok was 21 years old at the time of the accident and he was expected to live up to 60 years old. The plaintiff was about 34 years old and he was estimated to live up to 70 years old. In short, they had a much longer life expectancy of about 40 years and for the rest of their lives, the two plaintiffs would essentially be “locked in” to their bodies with no modes of escape.
[25] It is a well-established principle that the factors which the Court must take into account in assessing the quantum of pain and suffering is the victim’s awareness of the pain and distress he is in and the future pain and suffering that he would have to endure: see [6] above. In the present case, the plaintiff’s awareness and appreciation of his plight is definitely more limited than the plaintiffs in the two previous cases. The duration of his pain and suffering is also shorter as his life expectancy has been shortened to 27 years. As such, the plaintiff’s claim for $280,000 to be awarded for pain and suffering, which is way above the awards in Jeremy Kwok ($203,000) and Lai Wai Keong Eugene ($185,000), cannot be supported.
[26] On the other hand, I found the case of Eddie Toon to be particularly instructive as it also involved a young seven-year-old victim who sustained severe brain damage from a road accident. The nature and consequences of the injuries were very similar and their life expectancies were also similarly reduced to 27 years. In upholding the award of $160,000 for pain and suffering and loss of amenities, the High Court reiterated the views of the learned Assistant Registrar at [27] of the Judgment that the plaintiff only possessed a limited awareness of his plight and condition. The fact that he could indicate pain and pleasure, frustration and discomfort and that he responded more positively to some individuals (e.g. his mother) was an indication that he had some insight and awareness of his plight. However, that insight was found to be very limited. In order to have proper insight, there had to be a capacity to relate the present with the past and to those who were around him. The plaintiff had, at best, ‘islands of insights” and would not be able to appreciate the full extent of the catastrophe that had befallen him and his family.
[27] The above observation would be equally applicable to the present case. As such, I was of the view that the starting point for the award of pain and suffering and loss of amenities should be at least $160,000. I then turned to consider the defendant’s submissions the award in this case should be less than the award in Ramesh s/o Ayakanno as there were other additional injuries to the liver and fractures of the spinal cord in the latter. Although there were some merits to this submission, the defendant failed to consider the fact that the plaintiff in Ramesh s/o Ayakanno had a significantly shorter life expectancy of about ten years. Given the significant differences in life expectancies, I did not accept the defendant’s submission that the award in this case should be less than that of Ramesh s/o Ayakanno. Considering that there were no added injuries of fractures or deranged liver functions but a significantly longer period of pain and suffering, I was of the overall view that $190,000 was a fair and reasonable amount of compensation for this head of claim.
Loss of future earnings of the plaintiff
[28] I now turn to the next head of claim which is the loss of future earnings (“LFE”) of the plaintiff.
[29] It is well-established that there is nothing in principle which precludes the award of LFE to an injured party who is a young child or student who has yet to embark on a career provided that there are sufficient objective facts or evidence to enable the court to reasonably make the assessment. It does not necessarily follow that just because an injured party was still studying at the time the injury was sustained it would not be possible to award him damages based on LFE. There has been a number of previous cases where damages based on LFE have been awarded to an injured party who has yet to enter the employment market: Koh Chai Kwang v Teo Ai Ling (by her next friend, Chua Wee Bee) [2011] SGCA 23 (“Teo Ai Ling”) at [38] – [39]. The Court of Appeal in Teo Ai Ling further held that the civil service career model would be a reasonable model to base an award for LFE, where the claimant is a student with a broad range of career opportunities ahead of him and it is unclear which career path he would eventually take: at [34].
[30] The principle that the Court can give an award of LFE to young injured plaintiff was subsequently affirmed by the Court of Appeal in Lee Wei Kong (by his litigation representative Lee Swee Chit) v Ng Siok Tong [2012] SGCA 4 (“Lee Wei Kong”) at [33]:
[31] In the present case, the task of assessing what should be the appropriate multiplier and multiplicand is made even trickier as the plaintiff was only nine years old at the time of the accident. As observed by the Court of Appeal in Teo Ai Ling (at [45]):
[32] The present case unfortunately involved such a child. The Court must now make an estimate of how well the plaintiff, if uninjured, would have fared in his working life as an earner on attaining adulthood. It is faced with the immensely difficult task of having little or no material upon which to assess the plaintiff’s future earning potential, since he has not even embarked on any form of post-secondary or tertiary education. In these circumstances, it is almost impossible to estimate the plaintiff’s ability with any degree of objectivity and certainty. To adopt the language of the Court of Appeal in Teo Ai Ling, ultimately, the Court has to engage in “crystal ball gazing and peering into the future” in the present case.
The multiplier
[33] The plaintiff proposed a multiplier of 16 years after taking into consideration that he would live up to 38 years old and assuming that he would complete his National Service (“NS”) at 22 years old. It is well-established principle that to avoid over-compensation, the chosen multiplier must embed discounts for two factors: the vicissitudes of life (the contingencies and uncertainties of life which might have cut short the plaintiff’s working life in any event) and accelerated receipt of a lump sum award which can be invested to yield a return. This is the conventional approach for LFE assessment endorsed by the Privy Council in Lai Wee Lian v Singapore Bus Service (1978) Ltd [1983-1984] SLR(R) 388 and the Court of Appeal in Tay Cheng Yan v Tock Hua Bin and another [1992] 1 SLR(R) 779. As such, I did not accept the plaintiff’s proposal of a 16-years multiplier as that would be too excessive and not in line with the established principle.
[34] The defendant submitted that the appropriate multiplier in this case should be 8 years. The defendant cited the case of Eddie Toon as a supporting precedent, where the High Court affirmed the 9 years’ multiplier given by the Assistant Registrar. The defendant contended that a multiplier of 8 years was appropriate based on the assumption that he would have about 16 years of working life after NS and after taking into consideration the contingencies and uncertainties of human life as well as accelerated receipt. It was submitted by the defendant that a discount of about half is usually applied by the courts when it comes to a lengthy period of balance working life. In support of this contention, the defendant relied on the case of Lee Wei Kong where the Court applied a multiplier of 20 years in a case where the plaintiff was expected to have about 40 years of working life. In the High Court case of Teo Ai Ling (by her next friend Chua Wee Bee) v Koh Chai Kwang [2010] 2 SLR 1037, a multiplier of 20 years was also applied for a plaintiff who was expected to have about 40 years of balance working life.
[35] Relying on the case of Eddie Toon, I was of the view that a multiplier of 9 years was a fair and reasonable one to adopt.
The multiplicand
[36] The plaintiff submitted that had it not been for the accident, the plaintiff would most probably have been able to complete his tertiary education and join the workforce. Although the plaintiff’s academic performance had not been excellent or outstanding, his mother testified that he was making steady progress in his studies and it was always her intention that all her children should at least complete their polytechnic studies.
[37] On the other hand, the defendant contended that the plaintiff’s academic results were poor and he was clearly a below average, or at best an average, student. The plaintiff’s academic grades for the first two and a half years of primary school education were highly inconsistent. Despite the tuition received by him since early 2011, the plaintiff only managed to score 59% in the first semester of primary three, just before the accident. Coupled with his less than ideal family background, the defendant submitted that the plaintiff was unlikely to attain tertiary education or even complete his polytechnic studies.
[38] In my view, little weight should be given to the plaintiff’s primary school results. As rightly observed by the High Court in Eddie Toon (at [49] supra), in a case involving a very young plaintiff, his primary school grades cannot be a reliable guide in assessing his academic abilities or be used to predict what his achievements would have been at “O” or “A” level if he had not met with the accident. It is equally possible for the plaintiff to either obtain a university education or to drop out from school in his teens. This is completely a matter for speculation. It is, of course, only natural for every parent to expect that her child will do well in school but whether or not a child can in fact achieve academic excellence in school depends on many other factors.
[39] In arriving at the appropriate multiplicand , the High Court in Eddie Toon used the mean commencing salaries of all occupations for young workers and relied on the data published by the then Ministry of Labour. It was held at [51] and [52]:
[40] Both parties relied on the above approach adopted by the High Court in Eddie Toon and did not rely on any civil service career models as benchmark, which was the approach adopted by the Court in Teo Ai Ling. Parties tendered various labour statistics published by the Ministry of Manpower (“MOM”) in the Report of Wages in Singapore 2011 (“MOM Wage Report”) for the Court’s consideration. It was undisputed between parties that the MOM no longer published any statistics for the mean commencing salaries of all occupations for young workers, which was the benchmark used by the High Court in Eddie Toon. As such, parties had no choice but to rely on the other labour statistics published in the MOM Wage Report.
[41] In deriving the appropriate multiplicand, the plaintiff proposed two alternate approaches. For the first approach, the plaintiff sought to rely on Table 9 of the MOM Wage Report, which basically sets out the median monthly gross starting salaries of graduates from the various institutions of higher learning, such as the universities, polytechnics and Institutes of Technical Education (“ITE”) in 2011:
In deriving the multiplicand, the plaintiff took the average of the above three figures to arrive at the average median starting salary of all graduates plus 16% of employer’s CPF contribution, which worked out to be $2,600.
[42] In the second approach, the plaintiff proposed to rely on Table 1.4 of the MOM Wage Report, which sets out the median monthly basic and gross wages of common occupations by age in all industries for June 2011. The table below sets out the median monthly basic wages of each common occupational group for the age group of 25 to 29 years old, which is the youngest of all the age groups surveyed:
The plaintiff then took the average of the above figures plus 16% employer’s CPF to arrive at the multiplicand of $2,400, which was computed as follows:
($16,474 ÷ 8) + 16% = $2,059.25 + 16% = $2,388.73 (which was rounded upwards to $2,400)
[43] The defendant, on the other hand, while relying on the statistics in Table 1.4, contended that, on the balance of probabilities, the plaintiff would be unlikely to attain tertiary education. As such, the Court should not include in its computation the two highest categories of occupations, i.e., Managers and Professionals. The defendant took the position that the minimum prerequisite of these two occupational groups was a university degree and given the plaintiff’s below average academic performance and less than ideal family background, it would be unlikely that he could be a university graduate. Therefore, these figures should not be included in the computation of the multiplicand. The defendant, hence, took the average of the six remaining occupational groups and computed the average basic wage for workers in the age range of 25 to 29 years as $1,585.17. Further, as workers in this age group would have been in the work force for some time, the defendant submitted that a fair estimate of the commencing wage of the plaintiff at 22 years old (after NS) would be $1,200. No statistics or data was furnished by the defendant to explain how the downward adjustment to $1,200 was derived.
[44] The Court in Balanalagirisamy Gowri Rajeswari and another (administrators of the estate of Radhkrishnan Hari Babu, deceased) v Wong Si Wah [2008] SGHC 174 (“Balanalagirisamy”) adopted a staged approach by applying different multiplicands to different stages of a person’s career lifespan as it considered the likelihood of increments and promotions as a person would get more experienced in his job. The learned Andrew Ang J observed at [15]:
[45] In view of the foregoing principle, the defendant proposed applying a similar three-stage approach with increments being added to each consecutive stage to mitigate against the risk of error. The defendant also cited the case of Man Mohan Singh s/o Jothirambal Singh v Zurich Insurance (Singapore) Pte Ltd [2008] 3 SLR(R) 735 (“Man Mohan Singh”) where the Court of Appeal applied a three-stage process when assessing the prospective careers of two young deceased brothers and allowed an average of 9.4% increase in pay for each of the stages. The defendant argued that the respective career paths of the two teenage brothers were clearer in Man Mohan Singh as the two brothers were already in secondary school at the time of the accident. As such, the figure of 9.4% was reasonable in the circumstances of Man Mohan Singh. However, the plaintiff in this case was very young and the defendant proposed a more conservative figure of 5% increment. Again, no data or explanation was furnished by the defendant to back up the basis for this proposed increment of 5%. Applying the proposed 5% increment to each stage, the defendant submitted that the appropriate multiplicands to be applied to the three stages are as follows:
(a) Stage 1: $1,200;
(b) Stage 2: $1,260; and
(c) Stage 3: $1,323.
[46] As explained in [38] above, the Court must be careful not to engage in the speculation of whether the plaintiff will be able to attain tertiary education or complete his education in an institute of higher learning. As such, any proposed computation based on such speculations cannot be right or supported. In the circumstances, I rejected both the plaintiff’s first approach of taking into account only the salary ranges of graduates from higher institutes of learning, as well as the defendant’s submission that the Court should not include the median basic wages of the two highest categories of occupation. There is an equal chance of the plaintiff becoming a professional or a labourer. The Court is not in the position to decisively conclude whether the plaintiff is more likely than not to be unable to attain tertiary education and vice-versa. In fact, it cannot. In my view, it is fairest and most equitable to take into account all eight categories of occupational groups for purpose of computation. Such an approach is also be in accordance with the principle enunciated in Eddie Toon, where the High Court adopted the mean commencing salaries of all occupations for young people in arriving at the appropriate multiplicand.
[47] I then took the average of all the figures set out in Table 1.4 and arrived at the average median monthly basic wage across all eight occupational groups as $2,059.25. I took into consideration the defendant’s submission that the figures reflected in Table 1.4 are not commencing salaries as most Singaporean males commence work before age 25. The question was how to ascertain the commencing salary of the plaintiff at age 22. No data or benchmarks were provided by the defendant to explain how the downward adjustment from $1,500 (from age 25 to age 29) to $1,200 (at age 22) was arrived at. As such, I referred to the Income Summary Table published on the MOM’s website, <http://stats.mom.gov.sg/Pages/Income-Summary-Table.aspx> (accessed 3 September 2014), which sets out the annual basic wage changes, excluding employer’s CPF contribution, from 2003 to 2013:
[48] Taking the average of the annual basic wage changes from 2003 to 2013, I arrived at the figure of 3.5% as the average annual basic wage change over the 10-year period. I then applied the average annual wage change of 3.5% per year to the average median monthly basic wage of $2,059.25 across all eight occupational groups for a period of 5 years, starting from age of 27 years old, being the average of the age group of 25 to 29 years old, to 22 years old. The average median commencing salary for all eight occupational groups at the age of 22 was then computed to be $1,723.24. I adopted this figure as the appropriate multiplicand as I found this to be the best estimate and the closest comparison to the benchmark adopted by the High Court in Eddie Toon.
[49] In computing the award for LFE, I allowed for loss of employer’s CPF contributions at 16% and the usual 13 month bonus which would be commonly given to most workers in Singapore. I accordingly arrived at the sum of $233,878.14 for this head of claim, which was computed as follows:
($1,723.24 x 13) + 16% of ($1,723.24 x 13) x 9-year multiplier = $233,878.14
Future medical expenses
[50] It was undisputed that future medical, surgical treatments, rehabilitation and physiotherapy sessions would be required to treat, amongst others, the plaintiff’s limb spasticity and contractures. Unlike a normal child, the plaintiff would have a higher chance of contracting upper respiratory tract infections (“URTI”) and pneumonia. Due to his bed-ridden condition, provisions should also be made for treating skin pressure ulcers and other potential medical conditions. Since the plaintiff’s discharge from NUH, he had been admitted to hospital on various occasions for ailments such as epilepsy, URTIs, pneumonia and gastroenteritis.
The multiplier
[51] It is trite law that the multiplier for future expenses is determined according to circumstances prevailing at the date of the trial. In relation to future medical expenses, the average life expectancy, rather than the retirement age, would be the measure of the period of the loss: Ang Leng Hock v Leo Ee Ah [2004] 2 SLR 361 (“Ang Leng Hock”) at [59].
[52] The plaintiff contended that a multiplier of 27 years should be adopted in the computation of his future losses and expenses, subject to the appropriate discount for accelerated payment at 33% reduction. The defendant submitted that the appropriate multiplier should be 12 years.
[53] In TV Media Pte Ltd, the High Court at first allowed a multiplier of 34 years for the respondent’s medical expenses, which was two-third of her remaining life expectancy of 51 years. However, the Court of Appeal found this to be too high and lowered it to 17 years. In Tan Juay Mui v Sher Kuan Hock [2012] 3 SLR 496, the High Court upheld the multiplier of 17 years for a plaintiff who had a life expectancy of about 32 years. In the recent High Court decision of Lai Wai Keong Eugene v Loo Wei Yen [2013] 3 SLR 1113, the learned Coomaraswamy J affirmed the Assistant Registrar’s decision that a 15-year multiplier was appropriate for future medical expenses in respect of a plaintiff who was expected to live for about 30 years. On appeal to the Court of Appeal, the multiplier remained unchanged. In Ang Leng Hock, the Assistant Registrar awarded a multiplier of 20 years for a plaintiff who was expected to live for another 33 years. On appeal, the learned Prakash J found the 20-year multiplier to be on the high side and reduced it to 15: at [59].
[54] In light of the above case precedents and considering the plaintiff’s life expectancy of 27 years, I was of the considered view that a multiplier of 12 years, as submitted by the defendant, was fair and reasonable.
The appropriate multiplicand to be applied
Private hospital rate vs. restructured hospital rate
[57] The first point of contention was the appropriate type of hospital rate that the Court should adopt in assessing the quantum of each medical expense. Dr Keith Goh testified that the rates reflected in Annex A were those of a private hospital such as the Mount Elizabeth Medical Centre. I agreed with the defendant that plaintiff had consistently been treated at KKH since his transfer from NUH and as such, the totality of evidence suggested that he would continue to be under the care and treatment of KKH. Dr Keith Goh also agreed that it would be reasonable for the plaintiff to continue treatment at a restructured hospital. As such, the rates reflected in Annex A would have to be accordingly adjusted to reflect restructured hospital rates.
[59] On the above basis, the defendant submitted that a fair reduction of 50% should be given to the figures in Annex A. Furthermore, historical evidence suggested that the plaintiff had been receiving treatment as a subsidised patient and would continue to receive government grants for his future treatment. A fair estimate of how much government grant the plaintiff would get for his future treatment could be obtained by looking at his prior admission invoices. As a percentage of the total charges reflected in the invoices submitted by the plaintiff, the defendant computed that the average percentage of the total charges for the amount of government grants the plaintiff had been receiving was about 43.59% of the total charges incurred. The defendant therefore contended that a further 40% reduction for government grant should be imputed after giving a 50% discount to the private rates set out in Annex A.
[60] The plaintiff, on the other hand, submitted that he should be entitled to Class B1 rate and according to a print-out from the Ministry of Health’s website attached as Tab A to the plaintiff’s closing submissions, Class B1 patients are entitled to 20% government subsidy.
[61] A perusal of the KKH’s invoices submitted by the plaintiff showed that the he had been receiving treatment either as a Class B2+ patient and/or Class B2 patient. Given the general practice of allowing award for FME at the default B1 hospitalisation rate, I did not accept the defendant’s submission that a further 40% discount should be imputed in the calculation because this was based on bills rendered at Class B2+ and Class B2 rates. Nonetheless, I was of the view that a further 20% discount should be imputed as potential government subsidy after the first 50% discount to the private rates in Annex A.
[62] With the above parameter in mind, I went on to consider each of the items set out in Annex A.
Surgery to treat limb spasticity and contractures
[63] Dr Keith Goh recommended in Annex A that there should be one surgery per year for the first three years to treat limb spasticity and contractures. However, as Dr Keith Goh was not the plaintiff’s treating doctor, the views of his treating doctor in this regard would have more weight. Professor Ong confirmed that the plaintiff did not undergo any tenotomy or botox treatment during his stay at NUH. There were plans to discuss these treatment options with the family but NUH did not have a chance to do so as the plaintiff was subsequently transferred to KKH. Professor Ong informed the Court that in the plaintiff’s case, he would recommend one tenotomy now and another tenotomy procedure at the end of puberty.
[66] As for botox and baclofen infusion, the plaintiff submitted that the Court should provide for two such treatments and the defendant submitted that only one such treatment be provided. Dr David Low testified that there was very little effective treatment for limb spasticity and contractures. The two most effective treatments were botox injections and baclofen infusion which helped to reduce the severity of abnormal muscular contraction. Although tenotomy helped to prevent the muscles from acting on the joint, the procedure had its side effects as it rendered the movement of the joint paralysed. In light of Dr David Low’s evidence that botox injections and baclofen infusions were the two most effective treatments, the plaintiff’s submission that provision should be made for two such treatments for the entire life span of the plaintiff, was accepted.
Surgery to treat skin pressure ulcers
[69] The plaintiff asked for provision to be made for one such surgery but the defendant contended that no such provision should be made as the mother had been providing very good care to the plaintiff. Thus far, historical evidence suggested that the plaintiff had not been suffering from any skin pressure ulcers and it was more likely than not that the good home care would continue in his case. As such, it was unlikely that the plaintiff would suffer from skin pressure ulcers that would require surgical intervention.
[70] I was of the considered view that provision should be made for such surgery. As time passes, the plaintiff would get heavier and bigger; whereas, the mother would grow older. She might not be able to handle or turn the plaintiff in bed as easily. As such, the chances or likelihood of the plaintiff getting skin pressure ulcers requiring surgery would increase with time and hence, it would only be prudent that a provision be made for this. This was further fortified by the evidence of Dr David Low who testified:
After taking into account the undisputed ballpark figure of $15,000 as the total cost for conservative treatment (at [68] above), the total award for skin pressure ulcer treatment was worked out to be $17,000.
Frequent infections (URTI and pneumonia)
[71] It was clear from the overall evidence that the plaintiff had been frequently admitted to the hospital for URTI and pneumonia. The KKH’s discharge summaries revealed that the plaintiff had been admitted for URTI for a total of seven occasions between November 2012 and October 2013. Professor Ong and Dr David Low also agreed that it was fair to use the plaintiff’s previous URTI admissions as an estimate to determine how frequently the plaintiff would be likely to be admitted for URTI. Professor Ong estimated that, as a child, the plaintiff would be admitted for URTI on an average of about four to seven times a year, but the frequency would reduce to about two to four times a year in his adulthood.
[72] Dr David Low was of the view that the historical trend of seven admissions a year was a good estimate for the plaintiff’s future but he disagreed that the frequency of URTI admissions would reduce as the plaintiff gets older. In any event, both the plaintiff and the defendant adopted Dr David Low’s estimate in their submissions and as such, I worked out my calculation on that basis.
$523 x 4 days x 7 admissions in a year x 12 years = $175,728
[75] In the second approach, the plaintiff sought provisional damages in the event that the decannulation process turned out to be unsuccessful in the near future and a permanent tracheostomy would be needed for life. The plaintiff submitted that a provisional period of five years was fair to monitor the plaintiff’s prognosis and his condition post-decannulation. At the five-year mark, the Court would have to assess the frequency of pneumonia treatment as well as the MLB-SSG procedure. In the meantime, under this second approach, the plaintiff claimed for 10 pneumonia treatments for the rest of the plaintiff’s life, based on the assumption that he would not require a permanent tracheostomy in the future.
[76] On the issue of provisional damages, the evidence of Professor Henry Tan was critical as he was the only expert witness to testify at the second tranche of the hearing after the plaintiff was successfully decannulated. Parties did not elect to recall any of the medical experts who had earlier testified at the first tranche. As there was much contention as to whether an award for provisional damages should be made in this case, the material aspects of Professor Henry Tan’s evidence are set out below:
[78] The next question is whether provisional damages should be awarded under the second approach. At the outset, the defendant contended that provisional damages had not been sufficiently pleaded by the plaintiff. In this regard, the Court had to be mindful of the fact that plaintiff was only decannulated between the two tranches of hearing and the plaintiff’s counsel could not have anticipated such a turn of event when filing the statement of claim. In any case, reference to a claim for provisional damages was made in the statement of claim at paragraph 6(g).
[80] Paragraph 16 of the First Schedule of the Supreme Court of Judicature Act (Cap 332) (“SCJA”) provides the Court with the “power to award in any action for damages for personal injuries, provisional damages on the assumption that a contingency would not happen and further damages at a future date if the contingency happens”. Correspondingly, O 37 r 8 of the Rules of Court (Cap 332, R 5, 2006 Rev Ed) states:
[81] The legal test for granting of provisional damages is set out in the High Court decision of 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) (“Tan Juay Mui”) [2012] 3 SLR 496, where the learned Prakash J observed at [83]:
[82] The learned Prakash J then went on to set out the following legal principles for provisional damages in the remaining paragraphs of the judgment:
(a) The risk of development of the contingency must be a clear risk and not one that is fanciful (at [90]);
(b) The contingency must be objectively identifiable and, subsequently, objectively determined to have occurred, then when it does occur, a provisional damages award may be made. In order to prevent future dispute, one must be able to define the precise contingency, upon which further damages should be awarded (at [84]);
(c) There must be a clear-cut event. If you cannot specify at what point the contingency has occurred, then the contingency cannot be objectively determined as the law requires (at [87]);
(d) There must be some evidence as to the degree of such risk or when such changes were likely to occur. The evidence must support a finding that there was a reasonable likelihood of the condition occurring within the not too distant future (at [86]); and
(e) A time frame based on medical evidence should be specified for the plaintiff to return to apply for further damages (at [90]).
[83] Bearing the above principles in mind, I went on to consider whether this was an appropriate case to make an order for provisional damages. Professor Henry Tan testified in his evidence-in-chief that, despite the decannulation, the plaintiff’s lungs were still much weaker as compared to a normal child and the plaintiff had a higher tendency of contracting lung infection and pneumonia. Given the plaintiff’s weak constitution, he would need more help and medical intervention with ventilation in the event of a lung infection. As regards to the chances or likelihood of the plaintiff contracting pneumonia to such an extent that he would require a tracheostomy again, Professor Henry Tan expressed the view that it was likely as a simple flu could easily develop into pneumonia in the case of the plaintiff. With a permanent tracheostomy, the rate of pneumonia occurring would naturally increase and regular MLB-SSG procedures would have to be conducted for the plaintiff to investigate and treat SSG.
[84] However, at cross-examination, the defendant’s counsel put forward to Professor Henry Tan the legal standard of proof and asked the doctor whether his evidence meant that it was more likely than not that the plaintiff would need a tracheostomy. For ease of reference, I reproduced the relevant cross-examination question and answer below:
[85] With respect, I do not find cross-examination questions based on technical legal standards of proof helpful as they can sometimes be confusing to non-legally trained witnesses. Whether the plaintiff has established his case on a balance of probabilities is a finding that the Court has to make based on the facts and circumstances of the case. It is not the prerogative of the witnesses but that of the Court. The evidence of medical expert is important but the finding is one that has to be made by the Court. In any event, Professor Henry Tan stood by his evidence at re-examination that a provision should be made for a permanent tracheostomy in this case although the plaintiff had been decannulated.
[86] The question is whether the legal principles for an award of provisional damages as set out in Tan Juay Mei have been satisfied. Taking Professor Henry Tan’s evidence as a whole, it would appear that there is a clear risk of the plaintiff developing pneumonia to such an extent that he will need a permanent tracheostomy. The totality of Professor Henry Tan’s evidence suggested that there is a reasonable likelihood of the plaintiff requiring a permanent tracheostomy in the future. In other words, the risk of the plaintiff’s requiring a permanent tracheostomy is a clear risk and not one that is fanciful in light of his quadriplegic condition. The contingency in this case, being the requirement of a permanent tracheostomy, is also objectively identifiable and can be objectively determined to have occurred. It is, as such, a clear-cut event.
[87] The remaining question is whether there is evidence to specify a certain time frame for the plaintiff to return to apply for further damages. In Tan Juay Mui, there was medical evidence that the plaintiff was at risk of developing complications of renal failure, glaucoma, blindness, gangrene and coronary heart diseases from diabetes in three to five years’ time. The Court therefore made an order that the plaintiff may apply for further damages to be assessed if within five years she develop any of the above complications as a result of diabetes.
[88] In this respect, there was no clear evidence from Professor Henry Tan as to the time frame the plaintiff would be at risk of developing pneumonia to such an extent that a permanent tracheostomy would be required. However, I am of the considered view that this should not be fatal to the plaintiff’s claim for provisional damages given Professor Henry Tan’s testimony that a provision should be made for such an event as there is clear and obvious risk of the plaintiff contracting pneumonia and requiring a permanent tracheostomy in future. It is undisputed that with the insertion of a permanent tracheostomy tube, the incidences of pneumonia will naturally increase and the plaintiff will have to undergo regular MLB-SSG to track his progress and to treat potential SSG. The medical expenses in such a situation will shoot up and it will be patently unfair to the plaintiff and his family that they should be left with little or no recourse in such a situation. The potential inequity of not making an order for provisional damages in this case far outweighs the potential injustice that may be caused to the defendant who is insured. In any event, any potential injustice caused to the defendant can be mitigated by specifying a shorter time frame for which the plaintiff can apply to the Court for further damages to be assessed.
[89] In the circumstances, I make an order that the plaintiff may apply for further damages to be assessed if within three years of today he requires a permanent tracheostomy as a result of contracting pneumonia.
$530.50 x 8.5 days x 7 incidences over remaining lifespan = $31,564.75
Item 4 – Limb problems (Muscle atrophy, limb contractures)
[91] Both Professor Ong and Dr David Low expressed the view that it was fair to rely on the historical data derived from the plaintiff’s previous rehabilitation sessions as a guide to estimate how frequently the plaintiff should attend physiotherapy. Professor Ong was of the view that a provision of about two physiotherapy sessions a month for the rest of the plaintiff’s future was fair. Dr David Low testified that during the period of intensification of rehabilitation, the number of sessions could be about two to four times a month, but this would reduce to the historical baseline of about 1.5 sessions a month after the period of intensive rehabilitation.
$176 x 2 sessions x 12 months x 12-year multiplier = $50,688
$100 for each limb splint x 4 limb splints x (12-year multiplier / every 2 years) = $2,400
$5,000 for each wheelchair x (12-year multiplier / every 5 years) = $12,000
Home modifications and medical consultation
50% x [(100+150) ÷2] x 4 times a year x 12-year multiplier = $3,000
Future expenses for daily consumables
Loss of pre-trial and future earnings of the mother
[101] The above observation was cited with approval by the Court of Appeal in Lee Wei Kong at [53]. It was further held by the High Court in Chong Hwa Yin at [11] that no award could be made for a claim for LFE of a third party unless there was medical evidence that the services of that third party was crucial to the plaintiff’s recovery and rehabilitation. In the present case, it was undisputed by the defendant that the care of the mother was and still is crucial to the plaintiff’s recovery and rehabilitation. In fact, it was always the defendant’s case that the mother had been rendering very good care to the plaintiff as the defendant had no sign of skin pressure sores.
[102] Prior to the accident, the mother was working as a receptionist in a law firm Keystone Law Corporation and was drawing a monthly salary of $1,300, excluding employer’s CPF contribution of $208. As a result of the accident, she had to quit her job to take care of the plaintiff full-time. The mother was given caregiver training at NUH on how to provide homecare to the plaintiff after his discharge. The mother continued to take care of the plaintiff at home, together with the assistance of a domestic maid.
[103] In respect of the mother’s pre-trial loss of earnings, I allowed the claim at $1,508 (including employer’s CPF) per month for a period of 29 months and 3 days, being the time from the date of the accident to the commencement of the assessment hearing on 10 December 2013. I arrived at the sum of $43,882.80.
[104] The main issue in dispute was the award for the mother’s LFE, in particular, the multiplicand to be applied in this case. The plaintiff submitted that but for the accident, the mother would have continued to work and earn a monthly salary of $1,508, inclusive of CPF. The defendant, on the other hand, argued that it was always the mother’s true intention and calling to be a stay home mum. She only re-joined the workforce in 2007 as her second husband had become irresponsible after quitting his job. In light of her intention and calling, the multiplicand in this case should not be pegged to her monthly salary of $1,508 but a sum of $300 per month, which was the same figure imputed by the Court in Eddie Toon.
[105] I did not accept the defendant’s submission in this respect. The starting point to compute this head of claim is always the mother’s loss of income, which she would otherwise have earned. As observed by the High Court in Lee Wei Kong (at [63]):
[106] It is common knowledge that, in light of our country’s tight labour condition, women are constantly encouraged to remain in the workforce after marriage. Measures are constantly being implemented by the government to help working mothers to remain in the workforce after pregnancy and also to encourage non-working mothers to re-join the workforce. This observation was similarly made by the learned Steven Chong JC (as he then was) in Teo Ai Ling (by her next friend Chua Wee Bee) v Koh Chai Kwang [2010] 2 SLR 1037, where he held at [74]:
[107] In light of the foregoing, I was of the view that it was complete speculation on the part of the defendant to suggest that the mother would have chosen to be a homemaker in any event, even if the plaintiff had not been struck down by the accident. I saw no basis to make any reduction to the multiplicand of $1,508, which was the mother’s monthly salary (including employer’s CPF) prior to the accident. I therefore made the award of $235,248 as the mother’s LFE after taking into account the usual 13 month bonus and 12-year multiplier.
Cost of future nursing care

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AOD, a minor suing by the litigation representative v AOE

Laws this judgment relies on

Grounds of decision

Background facts

Pain and suffering and loss of amenities

Loss of future earnings of the plaintiff

The multiplier

The multiplicand

($16,474 ÷ 8) + 16% = $2,059.25 + 16% = $2,388.73 (which was rounded upwards to $2,400)

($1,723.24 x 13) + 16% of ($1,723.24 x 13) x 9-year multiplier = $233,878.14

Future medical expenses

The multiplier

The appropriate multiplicand to be applied

Private hospital rate vs. restructured hospital rate

Surgery to treat limb spasticity and contractures

Surgery to treat skin pressure ulcers

Frequent infections (URTI and pneumonia)

Item 4 – Limb problems (Muscle atrophy, limb contractures)

Home modifications and medical consultation

50% x [(100+150) ÷2] x 4 times a year x 12-year multiplier = $3,000

Future expenses for daily consumables

Loss of pre-trial and future earnings of the mother

Cost of future nursing care