Chang Mui Hoon v Lim Bee Leng

Colin Seow AR:

[1] On 7 September 2009, a road traffic accident (“the accident”) occurred between a motor vehicle bearing registration plate number SFL5663U (“SFL5663U”) and another motor vehicle bearing registration plate number SFH303M (“SFH303M”) along the Pan Island Expressway. The plaintiff, Ms Chang Mui Hoon (“the Plaintiff”), was then sitting in the front passenger seat of SFL5663U. SFH303M, which collided into the rear of SFL5663U, was at the material time driven by Ms Lim Bee Leng (“the Defendant”).

[2] The Plaintiff commenced a suit against the Defendant on 8 March 2011. On 25 January 2012, interlocutory judgment (“the consent judgment”) was entered by consent in favour of the Plaintiff. The Notice of Appointment for Assessment of Damages No 46 of 2012 (“NA 46/2012”) was filed on 27 September 2012, after which NA 46/2012 came up for hearing before me from 1 October 2012 to 4 October 2012, at the end of which it became part heard. The hearing of the evidence eventually concluded on 15 January 2013, and parties’ closing written submissions and reply submissions were tendered and exchanged by 7 March 2013 and 15 March 2013 respectively. In the meantime, however, an application to amend what was by then the Statement of Claim (Amendment No 3) was taken out by the Plaintiff on 13 March 2013 and it came up for hearing on 2 May 2013 (“the SOC amendment hearing”) whereupon it was partially granted. With the leave of this court, the parties later exchanged further consequential closing written submissions for NA 46/2012 on 23 May 2013. Having read and considered all the written submissions tendered in respect of NA 46/2012, I now deliver my judgment with my reasons.

[3] The Plaintiff’s claim for general damages is in respect of a whiplash injury to her neck, alleged post-traumatic stress disorder and alleged depression which the Plaintiff claims she suffered as a result of the accident. The Plaintiff had earlier in the course of proceedings also claimed damages for alleged injury to her back (in particular, injury to her lumbar spine). However, this claim was abandoned at the SOC amendment hearing before me on 2 May 2013 (see [2] above). The Plaintiff has also claimed general damages for future medical expenses and loss of earning capacity.

[4] The Plaintiff’s claim for special damages includes medical expenses, maid expenses, transport expenses and pre-trial loss of income. I now deal with each of these categories of claims below.

[5] There is no dispute that the Plaintiff sustained whiplash injury on her neck (ie, the cervical spine) as a result of the accident. The only dispute before me was the severity of the whiplash injury.

[6] The Plaintiff’s case is that she sustained a “Grade 2” whiplash injury under the Quebec Severity Classification of Whiplash Associated Disorders (“the Quebec Severity Classification”), and seeks damages in the sum of $35,000. The Defendant, on the other hand, argues that the Plaintiff’s whiplash injury is merely a “Grade 1” injury warranting a significantly smaller sum in damages. For completeness, the Quebec Severity Classification is set out below:

[7] According to the Quebec Severity Classification, the expression “musculoskeletal signs” means a “decrease in the range of motion and point tenderness”, and the expression “neurological signs” means a “decrease or absence of deep tendon reflexes, weakness and sensory deficits”.

[8] In support of the Plaintiff’s claim for a “Grade 2” whiplash injury, Dr Chang Wei Chun (“Dr Chang”), an orthopaedic surgeon, was called to give expert evidence on the extent of the Plaintiff’s whiplash injury. According to Dr Chang, he had examined the Plaintiff on 1 June 2011 whereupon he observed restrictions in the movements of the Plaintiff’s cervical spine. Dr Chang explained that he had arrived at the opinion that the Plaintiff’s whiplash injury was a “Grade 2” injury because in an earlier medical report dated 22 October 2009 (prepared by another orthopaedic surgeon named Dr David Wong Him Choon (“Dr Wong”) who examined the Plaintiff around two and a half weeks after the accident), Dr Wong had recorded that the Plaintiff had complained of “pain radiat[ing] down the right shoulder and upper limb as well as the interscapular region”. This, Dr Chang explained, would have placed the Plaintiff’s whiplash injury under “Grade 3” according to the Quebec Severity Classification since there were manifestations of “neurological signs” beyond just pain and restriction of movement in the Plaintiff’s neck (see table at [6] above). However, Dr Chang also noted that by the time he examined the Plaintiff on 1 June 2011, these neurological symptoms were no longer present. Taking the middle ground between a “Grade 1” whiplash injury (based on Dr Chang’s examination of the Plaintiff on 1 June 2011) and a “Grade 3” whiplash injury (which Dr Chang derived from Dr Wong’s medical report dated 22 October 2009), Dr Chang concluded that the most appropriate classification for the Plaintiff’s whiplash injury in the circumstances would be “Grade 2”.

[9] Dr Chang’s conclusion is disputed by the Defendant. The Defendant’s expert witness, Dr Teh Peng Hooi (“Dr Teh”), a consultant orthopaedic surgeon, gave evidence that the Plaintiff’s whiplash injury was a mild one at “Grade 1” under the Quebec Severity Classification. In arriving at this opinion, Dr Teh relied on, inter alia, a report of the Plaintiff’s medical examination conducted at Raffles Hospital several hours after the accident happened where the examining doctor, Dr Raj Jayarajasingam (“Dr Raj”), stated the following observations:

[10] Dr Teh explained that had the Plaintiff indeed sustained a “Grade 2” whiplash injury from the accident, Dr Raj would not have simply recorded a finding of “[c]linically examination unremarkable” which, contrary to Dr Chang’s dismissal of that statement for being “subjective”, meaningfully indicated that there were no remarkable symptoms insofar as the Plaintiff’s neck was concerned at the time of the medical examination. Dr Teh in his evidence also gave his medical opinion that in order for one to be able to fully assess the severity of any physical injury, medical examination of the injury has to be conducted within a “window of opportunity” of no more than two to three days after the injury was sustained:

Accordingly, Dr Teh averred that Dr Raj’s medical report (see [9] above) would provide the most accurate account of the extent of the Plaintiff’s neck injury, and that all other accounts given by the Plaintiff’s medical experts, including that of Dr Chang’s, were unreliable because the medical examinations conducted by those experts all took place several months after the date of the accident.

[11] With regard to the alleged neurological symptoms which the Plaintiff has complained of (see [8] above), Dr Teh was of the view that those symptoms were attributable to a pre-existing degenerative condition known as cervical spondylosis and further added that the neck pain complained of was and continues likely to be of a psychological origin instead – a medical condition referred to as somatoform disorder. This latter assertion echoes the findings in a medical report dated 15 August 2011 prepared by the Defendant’s other expert witness, Dr Calvin Fones Soon Leng (“Dr Fones”), who is a consultant psychiatrist.

[12] Having considered the evidence before me, I am of the view that the Plaintiff has suffered a “Grade 1” whiplash injury under the Quebec Severity Classification. I accept that Dr Raj’s medical report (see [9] above), given its contemporaneity vis-à-vis the time of the accident, cannot simply be dismissed as being “subjective” or, to use some of Dr Chang’s harsher words, to be considered “not worth the paper it is written on”. By comparison, all other accounts given by the Plaintiff’s expert witnesses (in particular Dr Chang’s account) and documented in their medical reports, insofar as any part thereof is being relied upon by the Plaintiff to prove that she has sustained a “Grade 2” whiplash injury is concerned, carry substantially less weight in that same regard, because those accounts arose from medical examinations of the Plaintiff which took place long after – in the order of months – the accident happened. Apropos, it is worth mentioning that Dr Chang’s medical examination of the Plaintiff took place more than one and a half year after the accident took place (see [8] above).

[13] With regard to Dr Wong’s medical report dated 22 October 2009, some additional observations need to be made other than that Dr Wong’s medical examination of the Plaintiff took place around two and a half weeks (see [8] above) after the accident (ie, around six times more than the “window of opportunity” as explained above would allow). Dr Wong had earlier deposed to an affidavit of evidence-in-chief as one of the Plaintiff’s expert medical witnesses for the proceedings. However, according to the Plaintiff’s counsel, Mr Andrew Hanam (“Mr Hanam”) on the first day of the hearing, Dr Wong had declined in the last minute to attend the court proceedings to give evidence. As it turned out, Dr Wong was the owner of SFH303M (see [1] above) and was sitting in the front passenger seat of SFH303M when the accident happened. As a result of Dr Wong’s refusal to attend the proceedings, Dr Wong’s affidavit of evidence-in-chief containing his medical report dated 22 October 2009 was expunged from the Plaintiff’s Bundle of Affidavits pursuant to O 38 r 2(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) which lays down the general rule that a deponent’s affidavit of evidence-in-chief shall not be received in evidence if he or she fails to attend trial. On that basis, Dr Chang’s evidence, insofar as his reliance has been placed on Dr Wong’s medical report dated 22 October 2009, has been disregarded. In any event, the Defendant’s counsel, Mr Niru Pillai (“Mr Pillai”), has also brought this court’s attention to a letter dated 14 March 2011 which he received from Mr Hanam’s firm stating, inter alia, that “[the Plaintiff] takes the position that [Dr Wong’s] report is unreliable, may be tainted with bias, and is not admissible”.

[14] I should also add, however, that even if Dr Wong’s medical report dated 22 October 2009 were to be admitted and considered, I would have been inclined to accept that the Plaintiff’s complaint(s) of persistent pain in her neck was not a result of “neurological symptoms” manifesting from her whiplash injury but was likely instead due to some form of somatoform disorder as suggested by Dr Teh and Dr Fones (see [11] above; but for which no award would be made given that the Plaintiff’s belated attempt to amend her pleadings to include a claim for somatoform disorder was rejected in the SOC amendment hearing (see [2] above), with no appeal arising therefrom), although I would not take the further view that the same complaint(s) of pain could also be explained away with cervical spondylosis. This means that one of the fundamental bases for Dr Chang’s ‘middle ground’ approach (see [8] above) in arriving at a “Grade 2” whiplash injury would have been seriously flawed in any case.

[15] In assessing the appropriate sum to be awarded to the Plaintiff for her “Grade 1” whiplash injury, I have considered the precedents as set out in Assessment of Damages: Personal Injuries and Fatal Accidents (LexisNexis, 2 Ed, 2005) at pp 206-214 and I note that, historically, the damages awarded for whiplash injuries tend to be from $5,000 upwards depending on the severity of the injury in each particular case. However, I am also mindful that the precedents cited therein may now be of more limited guidance today than they were in the past given that these cases were on average decided close to a decade ago. The courts have taken economic realities such as monetary inflation into account when making awards in assessment of damages proceedings (see, eg, Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR(R) 178 (“Tan Siew Bin Ronnie”) at [18]), and in principle I see no reason to do otherwise in the present case.

[16] At the same time, I also note that there are three relatively recent road traffic accident cases involving whiplash injuries that are of useful guidance in the present case. In Tan Siew Bin Ronnie (see [15] above), Chan Seng Onn J upheld an assistant registrar’s award of $24,000 to the plaintiff for whiplash injury to the cervical spine with residual disabilities such as frontal headaches, neck stiffness and occasional bouts of vertigo (see Tan Siew Bin Ronnie at [4]). In Clark Jonathan Michael v Lee Khee Chung [2010] 1 SLR 209 (“Clark Jonathan Michael”), Judith Prakash J declined to interfere with an assistant registrar’s award of $25,000 to the plaintiff for whiplash injury involving long-lasting effects such as neck pain, headaches, tinnitus and numbness of the arm (see Clark Jonathan Michael at [26]). That award of $25,000, it should be added, included damages for the plaintiff’s “losses due to one year delay in graduation” (see Clark Jonathan Michael at [2]). In Menjit Singh s/o Hari Singh v Ong Lay Peng [2012] SGHC 11 (“Menjit Singh”), the plaintiff who suffered a relatively uncomplicated whiplash injury was awarded $12,000 for pain and suffering (see Menjit Singh at [13]).

[17] Having reviewed the case authorities, I find that the Plaintiff’s whiplash injury in the present case is more elaborate than that in Menjit Singh. However, I am unable to reach the further conclusion that the whiplash injury in the present case is as severe as that in either Tan Siew Bin Ronnie or Clark Jonathan Michael. In my view, a fair and reasonable award in the circumstances of the present case would accordingly be $16,000.

[18] The Plaintiff is also seeking general damages in the sum of $50,000 for post-traumatic stress disorder (“PTSD”) and $10,000 for depression arising from the accident. In particular, the Plaintiff complains that she has, inter alia, now become fearful with headaches and giddiness whenever she is sitting in a motor vehicle, has trouble sleeping and has become easily irritable ever since the accident happened. The Defendant does not dispute that the Plaintiff is suffering from PTSD and depression. Instead, the Defendant is arguing that the quantum of damages sought by the Plaintiff is excessive.

[19] The evidence given by the Plaintiff’s medical witness on her PTSD and depression are as follows. In a medical report dated 5 April 2011, Dr Clarice Hong Pei Hsia (“Dr Hong”), a consultant psychiatrist who treated the Plaintiff for her psychiatric ailments after the accident, stated that the Plaintiff was suffering from PTSD and “severe depression requiring pharmacotherapy and psychotherapy”. Referring to what is known as the DSM-IV Diagnosis Criteria for PTSD (“DSM-IV Criteria”), Dr Hong gave her opinion in court that the Plaintiff’s PTSD was at a “severe” level as at January 2011, but that her PTSD had since improved to a “moderate” level by February 2012 with some residual symptoms. This, Dr Hong explained deductively, would mean that the Plaintiff’s PTSD prior to January 2011 after the accident might be even worse than “severe” under the DSM-IV Criteria.

[20] The Defendant’s medical expert, Dr Fones (introduced earlier in [11] above), disagreed with Dr Hong’s assessment of the Plaintiff’s PTSD and depression. In his assessment using the DSM-IV Criteria, Dr Fones placed the Plaintiff in the category of “mild” for her PTSD. Dr Fones also assessed the Plaintiff’s depression to be “moderate”. In his medical report dated 28 October 2011, Dr Fones wrote:

Dr Fones also stated in his medical report that he did not consider the Plaintiff’s psychiatric conditions to be permanently disabling at all, and estimated that recovery “could span 2-3 years”.

[21] An explanation of the varying degrees of PTSD and its associated estimated awards is provided in Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“Guidelines for the Assessment of General Damages in Personal Injury Cases”) at pp 27-28:

[22] Having regard to the guidelines above, I am unable to accept that the Plaintiff has suffered “severe” PTSD as a result of the accident. The main symptoms experienced by the Plaintiff in the present case are that she has become fearful with headaches and giddiness whenever she is sitting in a motor vehicle, has trouble sleeping and has become easily irritable ever since the accident happened (see [18] above). There is nothing seriously debilitating in these symptoms experienced by the Plaintiff, and neither was there any evidence positively establishing that the Plaintiff’s prognosis is poor. According to Dr Fones in his medical report dated 28 October 2011, he stated:

[23] Dr Hong in her oral evidence may not have concurred with Dr Fones on his estimated timeframe for the Plaintiff’s recovery, but this was only because Dr Hong preferred to take a relatively noncommittal view that there is generally no rough timeframe that can be ascribed to a person’s recovery from PTSD. This cannot be taken to mean that Dr Hong was asserting that the Plaintiff’s recovery in the present case would take an indefinite or extraordinarily long period of time. In any case, it is also noted that Dr Hong agreed with Mr Pillai during cross-examination that the conclusion of the present legal proceedings would provide a major relief for the Plaintiff as regards her PTSD:

[24] Based on the evidence discussed above, I am of the view that the Plaintiff’s PTSD falls more appropriately within somewhere between a high “moderate” and a low “moderately severe” category instead (see [21] above).

[25] Turning now to the Plaintiff’s depression, it is again apposite to refer to Guidelines for the Assessment of General Damages in Personal Injury Cases at pp 25-27 which states as follows:

[26] Similarly, I do not agree that the Plaintiff’s depression falls within the “severe” category. In my judgment, the Plaintiff’s depression can at most be placed at a low “moderately severe” category under the general guidelines as set out above. Taking into account that there is some overlap between the Plaintiff’s PTSD and depression, I will award the Plaintiff $20,000 for all the psychiatric conditions that she has suffered as a result of the accident (ie, $12,000 for PTSD, $10,000 for depression, and applying a discount of $2,000 for the overlap). In arriving at this figure, I have also considered the cases of Pang Koi Fa v Lim Djoe Phing [1993] 2 SLR(R) 366 and Goh Eng Hong v Management Corporation of Textile Centre and another [2003] 1 SLR(R) 209 which were cited to me by Mr Hanam, and I do not find that the Plaintiff’s psychiatric condition as gleaned from the evidence in the present case is as severe and elaborate as those that featured in those two cases.

[27] The Plaintiff has put in a claim of $16,406.40 for future medical expenses for her whiplash injury, PTSD and depression. More specifically, the claim is $12,000 for psychotherapy and $4,406.40 for chiropractic treatment. Mr Pillai has argued for the Defendant that no award should be made under this category of claim because there is a lack of cogent evidence to support the claim.

[29] However, the Plaintiff is not basing her claim of $12,000 on Dr Hong’s medical report. Instead, the Plaintiff is relying on Dr Fones’ medical report dated 28 October 2011 which stated as follows:

[31] Moving on to the Plaintiff’s claim of $4,406.40 for chiropractic treatment, the Plaintiff has arrived at this sum by relying on Dr Chang’s medical report dated 10 April 2012 where he stated:

[33] Secondly, Dr Chang’s recommendation that the Plaintiff should undergo four chiropractic treatment sessions per month for a duration of twelve months was made apparently on the basis that the Plaintiff has suffered a “Grade 2” whiplash injury under the Quebec Severity Classification. As I have found earlier, the Plaintiff’s whiplash injury should more appropriately be classified as “Grade 1” under the Quebec Severity Classification (see [12] above). A discount should therefore correspondingly be applied in calculating the final sum to be awarded for the Plaintiff’s future chiropractic treatment. In the circumstances of the present case, I am of the view that a fair and reasonable discount to be applied would be to halve Dr Chang’s recommended twelve-month duration for the Plaintiff’s future chiropractic treatment, while maintaining Dr Chang’s recommendation of four sessions per month. The end result would be a total sum of around $1,645 (ie, C$56 x 1.224 x 4 x (12 ÷ 2)). For the avoidance of doubt, the same currency conversion rate which Mr Hanam has adopted in his calculation (see [33] above) was similarly applied in my calculation here.

[34] Accordingly, I award the Plaintiff $1,645 for future medical expenses in respect of her whiplash injury.

[35] The Plaintiff is presently 43 years old and married with two children – a son of around 11 years old and a daughter of around 13–14 years old as at the date of this judgment. Her highest academic qualification is the GCE ‘O’ Level which she attained in secondary school, and her last full-time occupation was an assistant ticketing manager at a travel agency, earning around $2,744 a month. In 2005, she resigned and became a full-time housewife because she wanted to look after her children and also because she claimed she had problems with her domestic worker who had to be terminated. She has not had any permanent employment since, save for some occasional freelance ticketing services which she rendered from time to time to another travel agency for a small unspecified fee. She claims it was always her intention to return to the workforce once her children are old enough to look after themselves, and that she had intended to start a small dog grooming business and work as a dog groomer as she enjoys being with and looking after dogs.

[36] In the proceedings, the Plaintiff has not pursued any claim for loss of future earnings. Instead, the Plaintiff is claiming $55,000 for future loss of earning capacity. In written submissions, Mr Hanam explained as follows:

For completeness, it is apposite to mention that Mr Hanam arrived at the sum of $2,241 with the help of certain statistics and data that he obtained from a website named ‘Service Canada’ which is maintained by the government of Canada.

[37] I pause at this juncture to mention one other aspect of the evidence which the Plaintiff has presented in respect of her claim. In the proceedings, the Plaintiff called her cousin, Ms Ho Chui Yan (“Ms Ho”), a pet stylist in Singapore, to give evidence as a factual witness on the salary she (Ms Ho) earns a month, as well as what pet stylists in Singapore generally earn every month. Insofar as the Plaintiff’s claim for future loss of earning capacity is concerned, Ms Ho’s evidence is in any case of no consequence because the Plaintiff is no longer living in Singapore since she has already migrated to Canada in October 2011.

[38] Coming back to Mr Hanam’s reliance on ‘Service Canada’ to support the Plaintiff’s claim, Mr Pillai has highlighted to this court a disclaimer found on the same website which states:

[39] Just so to address any intention the Defence may have in seeking to exclude any statistics or data found in the website, I do not think that the existence of such a disclaimer in the present case necessarily precludes any reliance by the Plaintiff on the information in the website for the purposes of the current proceedings. The disclaimer seeks to disclaim ‘Service Canada’ from any potential liability for putting up those statistics and data on its website. The purpose for which the disclaimer was made in the website is quite obviously different from that which the Defence is presumably asserting in drawing this court’s attention to the disclaimer.

[40] In submissions, Mr Pillai also argued that given that the Plaintiff has not been working for close to five years as at the date of the accident (see [35] above), she has “no competitive edge which would have been lost as a result of any residual deficit suffered from the injury sustained in the accident”. I do not agree with this contention. Given the Plaintiff’s age and academic qualifications (see [35] above), I find it difficult to accept that the Plaintiff’s “competitive edge” in the employment market is, as Mr Pillai would have suggested, totally non-existent to begin with. As noted earlier, the Plaintiff still rendered occasional freelance ticketing services for a travel agency over the years as a housewife. The Plaintiff, in my opinion, is still relevant in terms of the basic skills required of her in order to compete in the general job market.

[41] Moving on, I agree with Mr Hanam’s submission that Dr Fones did mention that the Plaintiff’s PTSD, depression and, to a limited extent, somatoform disorder, is an impediment to her functioning maximally:

[42] However, I am doubtful whether this, as a matter of evidential proof, necessarily translated into the Plaintiff actually suffering a reduction of her “competitive edge” in the employment market which is compensable by way of damages for loss of earning capacity. Dr Fones’ allusion to the Plaintiff experiencing an “impediment” and not being able to “function maximally” must be understood in the context of the question that was asked of him, viz what caused the Plaintiff’s reluctance to look for a job in Canada after the accident? An impediment causing a person’s reluctance to seek gainful employment and an impediment adversely affecting that person’s “competitive edge” in the job market ought conceptually be distinguished, and for good reason – the former may call for loss of future earnings to be used as the proper measure of damages to be awarded (which is not pleaded here), while the latter (if proven) is more appropriately compensated by way of awarding damages for loss of earning capacity. Conceptually speaking, Mr Hanam’s computation of the sum of $55,000 as gleaned from [36] above is therefore faulty because he was actually building a case for loss of earning capacity with a claim for loss of future earnings which the Plaintiff has not pleaded at all. As Judith Prakash J observed in Clark Jonathan Michael (see [16] above) at [91]:

I therefore reject Mr Hanam’s computation of $55,000 as damages for the Plaintiff’s future loss of earning capacity.

[43] Nevertheless, given my finding that the Plaintiff has suffered a high “moderate” to low “moderately severe” form of PTSD and at most a low “moderately severe” level of depression (see [24] and [26] above) requiring two years of psychotherapy (see [29]-[30] above), as well as my finding that the Plaintiff has suffered whiplash injury requiring six months’ worth of future chiropractic treatment (see [33] above), I am prepared to independently find on irresistible inference that there is some extent of temporary (since there are no permanent disabilities in the present case) weakening of the Plaintiff’s “competitive edge” in the job market while she is en route to full recovery, which ought to be compensated with damages. Having said that, I wish to however also state that while some time allowance may be given to the Plaintiff to cope with her injuries, any further substantial delay occasioned by the Plaintiff’s continued reluctance to seek re-employment is likely to be unreasonable. Time is that wherein there is opportunity, but opportunity is that wherein there is no great time. The Plaintiff must endeavour to pick herself up swiftly and seize every opportunity to move on with her life as soon as possible.

[44] In assessing the appropriate damages, I am mindful again of Judith Prakash J’s holding in Clark Jonathan Michael at [91] which states:

[45] I find that an award in the sum of $12,000 would fairly and reasonably compensate the Plaintiff for her future temporary loss of earning capacity in the present case.

[46] The Plaintiff is claiming a total sum of $49,092 for pre-trial loss of income comprising $22,200 for the period covering 17 February 2011 to 30 September 2011 (the “pre-migration loss of income”) and $26,892 for the period covering 10 October 2011 to 30 September 2012 (the “post-migration loss of income”). In this regard, it will be recalled that the Plaintiff has migrated together with her family to Canada in October 2011 (see [37] above).

[47] The Plaintiff, as mentioned earlier, has been a full-time housewife since 2005 with no significant income (see [35] above). In court, she explained that she had planned to resume working life as a dog groomer by starting a small dog grooming business after her son reached eight years old and finished his primary one education in school (ie, sometime in the beginning of 2011). Referring to Ms Ho’s evidence (see [37] above) that she (Ms Ho) earned around $3,000 a month as a pet stylist in Singapore, Mr Hanam submitted that this would similarly have been a reasonable monthly income that the Plaintiff could have earned but for the injuries she suffered from the accident. Accordingly, Mr Hanam argued that the multiplicand for computing the Plaintiff’s pre-migration loss of income should be $3,000. As to the multiplier, Mr Hanam pointed out that in furtherance of her plan to be a dog groomer, the Plaintiff had in late 2010 signed up for a dog grooming certification course which she completed on 16 February 2011, but unfortunately she was unable to bring the plan to fruition as she was medically advised against working as a dog groomer as it was considered to be too physically demanding in light of her whiplash injury. Taking the date of the certification as well as the time the Plaintiff eventually migrated to Canada into account, Mr Hanam obtained a multiplier of 7.4 months, thereby arriving at a total claim of $3,000 x 7.4 = $22,200 for the Plaintiff’s pre-migration loss of income.

[48] With regard to the Plaintiff’s post-migration loss of income, Mr Hanam adopted the figure of $2,241 which he derived from the ‘Service Canada’ website (see [36] above) as the multiplicand. Taking into account the Plaintiff’s migration as well as the time this current proceedings came up for hearing, Mr Hanam computed a figure of 12 months as the multiplier, thereby giving the sum of $2,241 x 12 = $26,892 for the Plaintiff’s post-migration loss of income.

[49] The Defendant, on the other hand, submitted that no award for pre-trial loss of income should be made at all. The following objections were raised in submissions:

(a) the Plaintiff was not earning any income at the time of the accident, and it was therefore impossible to allow any award for pre-trial loss of income;

(b) the Plaintiff in obtaining a dog grooming certificate was far from sufficient to support and prove her claim for pre-trial loss of income;

(c) Ms Ho’s evidence on her own salary was not supported by any documentary evidence;

(d) it is unreasonable to assume that the Plaintiff would immediately set up a dog grooming business the moment she arrived in Canada in October 2011; and

(e) it would be presumptuous to think that the Plaintiff would have succeeded in her dog grooming business in any case.

[50] As I understand it, objection (a) was premised on the proposition that an award for pre-trial loss of income is by way of special damages which must be put to strict proof (cf Michael F Rutter, Handbook on Damages for Personal Injuries and Death in Singapore and Malaysia (Butterworths Asia, 2 Ed, 1993) at pp 195-196). The Plaintiff, in Mr Pillai’s submissions, has failed to discharge her burden of strict proof as there was no and there could not have been any evidence of the Plaintiff’s monthly income at the time of the accident as she was then a full-time housewife for almost five years.

[51] On this point, I find one particular Australian commentary on the principles of assessment of damages to be worthy of note and which I shall quote at length. In Harold Luntz, Assessment of Damages for Personal Injury and Death: General Principles (LexisNexis Butterworths, 2006) (“Assessment of Damages for Personal Injury and Death: General Principles”) at pp 89-92, the author wrote:

[52] The law is thus not so rigid – nor should it be – such that all claims tending to assume the character of seeking pre-trial loss of income must be shoehorned as claims for special damages (for which there must be strict proof). It cannot be taken for granted that all claims of such character are “capable of being estimated with a close approximation to accuracy”, although instances of such incapability are quite uncommon in practice. What this means is that when a claim is made by a plaintiff seeking compensation for pre-trial income that he asserts he could have earned but for his injuries suffered from the accident, and what the plaintiff would have actually earned is as doubtful as what would have been earned post-trial, it is to be preferred that pre-trial loss of earning capacity attracting general damages and not pre-trial loss of income attracting special damages be used as the proper measure of damages for the purposes of assessment. This is, however, not to say that the former approach must invariably prevail where the plaintiff was not employed at the time of the accident; Fullagar J’s example of the professional man quoted above at [51] would attest to that. The court’s evaluation at the end of the day must depend on the factual matrices of each and every case.

[53] In the present case, the proper measure of damages to be applied in respect of the Plaintiff’s claim for pre-trial earnings-related loss should be the Plaintiff’s pre-trial loss of earning capacity attracting general damages. As compared to what she could earn post-trial, I find it equally if not more doubtful what the Plaintiff, having been a housewife for almost five years at the time of the accident, would actually have earned during the period leading up to the date of trial. The fact that the Plaintiff has obtained a dog grooming certificate sometime after the accident does not in any way alter my analysis because the Plaintiff has pitched her claim as one seeking income that she would otherwise have been able to earn by way of setting up a dog grooming business. In other words, the claim, properly characterised, is for loss of pre-trial business earnings, not loss of pre-trial wages that she would have earned as an employee in the job market. There is no business without any commercial risks, and there is no guarantee of success in business. To assess and award the Plaintiff special damages under the rubric of pre-trial loss of income using the method that Mr Hanam has adopted (see [47]-[48] above) would be tantamount to making the Defendant insure the Plaintiff against all risks of business failure in the dog grooming business that she had intended to start, and that cannot be right. This is precisely what the learned author in Assessment of Damages for Personal Injury and Death: General Principles would have cautioned against in the light of his warning against the danger that “proof of precise figures could implant in the minds of a jury the idea that the earnings would definitely have been received and so make the jury forgetful of contingencies to which such earnings were subject” (see [51] above).

[54] Having determined that the proper measure of damages under the present category of claim should be general damages for pre-trial loss of earning capacity, the question is what amount, if at all, should be awarded to the Plaintiff. A claim for loss of earning capacity is a claim seeking compensation for the weakening of the “competitive edge” in the open employment market which a plaintiff has suffered as a result of his or her injury arising from the accident. The evidence of Ms Ho and the data from ‘Service Canada’ which at best only tend towards proving pre-trial loss of income, do not assist the Plaintiff in this regard. The Plaintiff’s proposed sum of $49,092 (see [46] above) is therefore rejected.

[55] Again having regard to Prakash J’s holding in Clark Jonathan Michael at [91] (see [44] above), I will award the Plaintiff a sum of $10,000 for her pre-trial loss of earning capacity which is to be added to the general damages that I have assessed earlier in [45] above.

[56] The Plaintiff has put in a claim for pre-trial medical expenses for the treatment of her whiplash and psychiatric injuries. Copies of the billing receipts were tendered in court as proof and, with the help of a table prepared by Mr Hanam, it became apparent that many of the receipts billed to the Plaintiff contained lump sum charges for both neck and back medical treatment without any specific apportionment of charges between the two types of treatment. Given that the Plaintiff has abandoned her claim for the alleged back injury (see [3] above), it follows that such amounts which were incurred by the Plaintiff for the treatment of her alleged back injury should be excluded. In that respect, Mr Pillai has suggested that it would be fair that a 50 percent reduction be applied to those unapportioned bills. I agree.

[57] Mr Pillai further argued that the bills charged for epidural injections administered on the Plaintiff should be totally excluded as those treatments were unnecessary. I disagree as I consider them to be reasonable avenues of treatment that the Plaintiff was entitled to explore in the circumstances at the time, although I would apply a 25 percent discount to the bills associated with those epidural injections as the evidence showed that for each of those sessions, three injections were administered to the Plaintiff’s neck while one injection was administered to the Plaintiff’s back.

[58] Based on the foregoing reasoning, I arrived at the sum of around $59,613 in my calculation.

[59] Mr Pillai has also raised an issue of double recovery in the sense that some of the medical expenses which the Plaintiff has incurred might be or have been covered by her own insurance policy. I do not think I need to delve into this issue in great detail other than to refer to a passage in Harvey McGregor, McGregor on Damages (Sweet & Maxwell, 18 Ed, 2012), pp 1384-1385, which states:

[60] This position has been adopted by our Court of Appeal in The “MARA” [2000] 3 SLR(R) 31 at [28] (see also Seagate Technology Pte Ltd and another v Goh Han Kim [1994] 3 SLR(R) 836 at [47] and [51]). I therefore dismiss Mr Pillai’s argument on double recovery.

[61] Accordingly, I will allow an award of $59,613 to the Plaintiff as special damages for medical expenses she has incurred prior to the commencement of the proceedings.

[62] The Plaintiff is also seeking $9,646 for maid expenses for the period between April 2010 and September 2011. In her affidavit of evidence-in-chief, the Plaintiff stated as follows:

[63] However, the documents produced by the Plaintiff do not tally with the sum of $9,646 claimed by the Plaintiff. In fact, the documents only went so far as to show that the Plaintiff had employed a maid for the period of April 2010 to November 2010. Documentary evidence for the alleged period of December 2010 to September 2011 was completely absent. No attempts were made to reconcile the figures presented in the Plaintiff’s affidavit of evidence-in-chief (see [62] above) with the documents produced by the Plaintiff.

[64] In any case, I find that there is no merit in the Plaintiff’s claim for maid expenses. Claims for maid/domestic helper expenses are not uncommon where domestic helpers are employed for the care and well-being of tortious victims who have suffered serious and often permanent disabilities, and even so the court has on occasion applied a discount to such claims to take into account such other concurrent services which the domestic helpers would provide to assist in the victim’s household chores (see, eg, Toon Chee Meng Eddie v Yeap Chin Hon [1993] 1 SLR(R) 407 at [38]). In the present case, the maid expenses were incurred not to provide any direct care to the Plaintiff for her own well-being, but to assist in the household chores for her entire family in lieu of her. Cases such as the present one fall within a penumbral class where the court is entitled to exercise its own judgment, based on the particular facts of each case, as to whether the expenses incurred in the hiring of the domestic helper is truly and fairly a necessity arising from the accident/tort which ought in law be compensated by way of damages (see, eg, 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 at [55]-[58]). Here, I am unable to find that such necessity truly and fairly existed in the circumstances. Given that (a) the Plaintiff has a history of once hiring a maid prior to the accident, (b) the Plaintiff did not engage a maid until around seven months after the accident happened, and (c) the Plaintiff agreed in cross-examination that the hiring of the maid was for the benefit of her entire family, I find on balance that the employment of the domestic helper from April 2010 to September 2011 was borne more likely out of convenience and/or factors that are not inextricably linked to the accident instead. I therefore reject this category of claim in its totality.

[65] Before leaving this category of claim, I will add in passing that nowhere in the Plaintiff’s statement of claim or her written submissions has she framed any claim for pre-trial loss of housekeeping capacity which, if the English authority of Daly v General Steam Navigation Co Ltd [1981] 1 WLR 120 were to be applied, would probably constitute a claim under general damages for pain and suffering and loss of amenities. There is therefore no reason for me to assess any damages as such.

[67] In conclusion, the following award is made in favour of the Plaintiff in the present case:

[68] Interest is to be applied at half of 5.33% on special damages from the date of service of the writ to the date of judgment, and at 5.33% on general damages for pain and suffering from the date of service of the writ to the date of judgment. The usual consequential orders are to apply.