Seow Hwa Chuan v Ong Wah Chuan [2016] SGHC 146

The plaintiff was riding a motorcycle on 19 June 2006 when he met with an accident with a pickup driven by the defendant (“the 1st accident”). He sued the defendant on 13 May 2009. Liability was adjudged in the proportion of 90% in favour of the plaintiff. The defendant’s appeal to the High Court was dismissed on 6 October 2011.

In the interim, the plaintiff met a second accident riding the same motorcycle on 12 November 2007 (“the 2nd accident”). He sued on 30 June 2010 and obtained a consent order for 75% liability in his favour.

The assessments of damages in respect of both accidents were fixed for hearing on 7 August 2014 before the same deputy registrar. That was an eminently sensible procedure because two main witnesses in both assessments were the plaintiff and Dr Tan Mak Yong (“Dr Tan”), who examined the plaintiff in respect of both accidents.

The plaintiff subsequently settled his claim against the defendant in the 2nd accident and obtained an order by consent for the global sum of $30,000 inclusive of $5,000 for special damages and $25,000 for general damages. The deputy registrar then proceeded to assess damages in respect of the 1st accident and made the following award on 6 July 2015. The deputy registrar awarded $72,000 for general damages and $15,515.35 for special damages making a total award of $87,515.35. Both parties appealed to the district judge (“the DJ”) who heard the appeals and handed down his decision on 18 March 2016. The DJ reversed the award to $95,000 and $19,355.35 respectively, making the overall award $114,355.35. The details were helpfully set out by the DJ in a table which I now reproduce:

The plaintiff suffered the following injuries –

The total damages for the overall pain and suffering awarded by the DJ was $50,000. The defendant appeals against (a), (b), (d) and (e). He is also appealing against the awards for future medical expenses ($5,000) and loss of earning capacity ($40,000). The plaintiff completed Secondary 4 schooling but did not obtain an “O” level certificate. Thereafter he worked as a technician. The evidence as to the plaintiff’s salary at the time of the 1st accident was, as the DJ noted, not very clear but the deputy registrar and the DJ accepted that the plaintiff was earning $2,200. Before me, Mr Ramesh Appoo (“Mr Appoo”), counsel for the defendant, argued that the plaintiff was then only earning $1,800 but with overtime pay it was $2,100.

The plaintiff was unable to work for a while but he has been working as a chauffeur since September 2007. He worked, first at the St. Regis Singapore and then at Resorts World Sentosa (“RWS”). In January 2013, he left RWS to work as a chauffeur for Overseas Union Enterprise Limited (“OUE”), earning $2,500 a month. He is still with OUE at the time of this appeal.

The evidence relating to future medical expenses came mainly from Dr Tan. The plaintiff was examined by Dr Tan in respect of both accidents for the purposes of preparing a medical report to be used for the assessment of damages. Strangely, Dr Tan examined the plaintiff in respect of the 1st accident on 8 April 2013 but examined the plaintiff in respect of the 2nd accident two days earlier on 6 April 2013. His medical report in respect of the 1st accident is dated 22 May 2013 and his medical report in respect of the 2nd accident is dated 12 June 2013. Although in his report on the 2nd accident he mentioned that the plaintiff had sustained injuries in the 1st accident, he made no mention of the 2nd accident in his report on 1st accident. In both reports he mentioned that the plaintiff had previous surgery to his spine in 1991.

The omission of any reference to the 2nd accident in Dr Tan’s report in respect of the 1st accident may be justified from a logical point if we consider that at the time of the 1st accident, the second had not taken place. But this report was not prepared as a sequential account of the plaintiff’s accident. It was prepared for the purposes of ascertaining the amount of compensation to be paid to him. The defendant in the 1st accident should not pay for any loss or injury that should be attributed to the defendant in the 2nd accident, and vice versa. Neither common sense nor the law allows a plaintiff to make a double claim.

Yet, the way the two medical reports were written, could have given the court the impression that none of the plaintiff’s injuries could or should be attributed to the 2nd accident because there is nothing in the first medical report that indicates that there was a second accident.

More crucially, 11 items in Dr Tan’s report in respect of the 1st accident were word-for-word identical to his report in respect of the 2nd accident. I set out below the relevant parts from Dr Tan’s report on the 1st accident. Sub-paragraphs (a), (b), (c), (d), (g), (i), (j), (k), (n), (p) and (w) are identical to his report in respect of the 2nd accident –

Dr Tan made no comparison or co-relation between the two accounts in spite of the fact that he made 11 identical findings of the plaintiff’s injuries. Mr Appoo submitted that Dr Tan admitted under cross examination that he was unable to say which of those injuries arose from the 1st and the 2nd accident. That the injuries overlap is obvious from the fact that Dr Tan noted 11 identical injuries in his two reports. However, Dr Tan’s inability to differentiate the injuries is a serious problem for the plaintiff and the court because there is no evidence to help the court determine the nature, cause and extent of the overlapping injuries. This is particularly important when the question of the long term implication of the injuries and the appropriate award to be granted for them is concerned.

The DJ awarded the plaintiff a sum of $40,000 for loss of earning capacity. An award for the loss of earning capacity (in the context where the plaintiff is currently employed) can only be awarded if there is a substantial or real risk that the plaintiff could lose his or her present job at some time before the estimated end of his or her working life and that the plaintiff will, because of the injuries be at a disadvantage in the open job market (see Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Chai Kang Wei Samuel”) at [36] and Teo Sing Keng and another v Sim Ban Kiat [1994] 1 SLR(R) 340 at [40]). This inquiry is not a speculative one because the assessment is based on reasonable expectations. The first problem here is that the plaintiff has not adduced evidence as to the extent, if any, that this defendant is responsible for any loss of earning capacity.

The other problem for the plaintiff is that instead of showing evidence that may justify an award for loss of earning capacity, his evidence shows that he is in fact earning more. Mr Perumal Athitham (“Mr Perumal”), counsel for the plaintiff argued that it is well-known that there is a great demand for technicians and that the job prospects of a technician are very much better than that of a driver. All this was based on the unsubstantiated claims of the plaintiff and Mr Perumal. The only justification for awarding something by way of loss of earning capacity is to show that his pay as a technician would have increased beyond the $2,500 he is receiving presently as a driver. There is no such evidence. Mr Perumal submitted that the ‘sum of $40,000 awarded [for loss of earning capacity] (having not given something for loss of future earnings) appears to be an appropriate sum’. This is based on the expectation that an injured plaintiff must always be given something either for a loss of future earnings or for a loss of earning capacity. This is wrong. If the evidence shows that the plaintiff is unlikely to incur either, then nothing should be given (see Chai Kang Wei Samuel at [19] to [22]). I will therefore allow the defendant’s appeal on this item.

The DJ increased the amount of $5,000 awarded by the deputy registrar to the plaintiff for the “undisplaced right distal fracture” to $10,000. The original award by the deputy registrar was explained by the medical evidence that the fracture did not require surgery. The increase by the DJ was based on the assumption that there were subsequent degenerative changes that were caused by the 1st accident. The evidence adduced by the plaintiff does not support this assumption in the light of Dr Tan’s admission that he could not attribute the degenerative changes to any particular accident. I think that Mr Appoo and the deputy registrar were right that the burden of proof had not been discharged by the plaintiff, and the sum of $5,000 ordered by the deputy registrar should be reinstated.

It is not disputed that the plaintiff has been having a variety of back and spinal problems for more than 20 years and had surgery done in 1991. Mr Appoo submitted that there is no evidence of any exacerbation of the L4/L5 anterolisthesis that can be attributed to the 1st accident. Furthermore, this is one injury which, in time, may have been caused or contributed by the 2nd accident. I accept Mr Appoo’s submission and allow the defendant’s appeal in respect of this item by reducing the award from $12,000 (for both the neck strain and the exacerbation of the L4/L5) to $3,000. The reason for this is that I accept that there may still be some form of muscular strain to the neck or back as a result of the 1st accident.

Mr Appoo also submitted that there is no evidence of the hematoma on the plaintiff’s chest or the one on his elbow, for which the DJ awarded $2,000 each. It is not clear but it seems that the DJ awarded $2,000 not just for the hematoma on the chest; it is also for the tenderness in the chest. I agree with Mr Appoo that the award for hematomas is usually $1,000 but I would not disturb the award in this case to allow a degree of latitude in the DJ’s discretion. So, although $1,000 is a good guide, in the overall context, a court may go below and above that figure provided it is not an excessive variation as the DJ did in this case.

Mr Appoo submitted that there was no evidence to support the award of $18,000 for the fracture of the transverse process. I do not think that the DJ was wrong in accepting that the fractures of the transverse process were caused by the 1st accident. The radiology report three days after the 1st accident seems to cover this injury. It was for Mr Appoo to challenge the evidence, but, as the DJ noted, it was not put to the doctors that the fractures can be attributed to some pre-existing condition. Although the amount of $18,000 appears slightly high, I will not disturb it.

For the reasons above, I reduce the general damages by $54,000. The deputy registrar’s award for the pain caused by the right wrist injury is reinstated, the award for neck strain is varied and the award for the plaintiff’s loss of earning capacity is struck out.