General Division of the High Court · Decided 4 August 2023

Poongothai Kuppusamy v Huationg Contractor Pte Ltd & Other

[2023] SGHC 215Case no. Suit No 808 of 2020

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Introduction
[1] The plaintiff, Ms Poongothai Kuppusamy (“Ms Kuppusamy”), was involved in a road traffic accident on 23 September 2017. She was 48 years’ old at the time. I found the first defendant, Huationg Contractor Pte Ltd (“Huationg”), to be wholly liable for her injuries: Poongothai Kuppusamy v Huationg Contractor Pte Ltd and another (Motor Insurers’ Bureau of Singapore, intervener) [2021] SGHC 108. The assessment of damages subsequently took place before me. I set out my findings below.
Facts
The parties
[2] Ms Kuppusamy and the second defendant, Mr Guru Murti a/l Maheshrou (“Mr Maheshrou”), are Malaysian citizens. Huationg is a company incorporated in Singapore.
Background to the dispute
[3] Beginning on 1 August 2017, Ms Kuppusamy was employed as a Security Officer by Eve3r Knight Consultancy Services Pte Ltd (“Eve3r”). Eve3r is a company incorporated in Singapore. It is in the business of, amongst other things, supplying its customers with “Security Officers” (ie, security guards). “Security Officers” must fulfil a range of duties, including dynamic (eg, patrolling) and static (eg, standing sentry) duties.
[4] On 23 September 2017, Ms Kuppusamy was riding pillion on a motorcycle ridden by Mr Maheshrou, when they were involved in an accident with a lorry driven by an employee of Huationg (the “Accident”).
[5] As a result of the Accident, Ms Kuppusamy has suffered: (a) a below-the-knee amputation of her left limb; (b) injury to her left popliteal region, requiring a skin graft; (c) pain over her knee; and (d) lower back pain.
[6] After the Accident, Eve3r paid Ms Kuppusamy her wages for September 2017, inclusive of overtime pay earned up to the date of the Accident. Eve3r subsequently terminated her employment and she returned to Malaysia, residing in Johor Bahru. Ms Kuppusamy has received treatment in Singapore, at Tan Tock Seng Hospital (“TTSH”) and National University Hospital (“NUH”), and in Malaysia.
[7] Ms Kuppusamy remained on hospitalisation leave until January 2018. Later that year, she obtained her first prosthetic limb in Malaysia. This prosthetic limb was unsuitable. Consequently, Ms Kuppusamy sought a second prosthetic limb. Ms Kuppusamy's prosthetic expert, Mr Santosh Kumar Prasad (“Mr Prasad”), recommended her the “Microprocessor-Controlled Prosthetic Limb” (“MPCP”). After three months of training beginning in October 2022, Mr Prasad fitted Ms Kuppusamy with the MPCP in February 2023.
Procedural history
[8] Ms Kuppusamy commenced proceedings against Huationg and Mr Maheshrou seeking, amongst other things, damages to be assessed against both defendants. This matter was bifurcated, with the issue of liability to be dealt with before the issue of damages. On 3 May 2021, I found Huationg wholly liable for Ms Kuppusamy’s claim.
Issues to be determined
[9] Ms Kuppusamy claims damages against Huationg under the following heads:
Ms Kuppusamy and Huationg are referred to collectively as the “Parties”.
[10] During the assessment of damages, Ms Kuppusamy and Huationg called Mr Prasad and Ms Kalaivani a/p Vedaiyan Gurusamy (“Ms Gurusamy”), respectively, as their expert witnesses on prosthetic limbs (collectively, the “Prosthetic Experts”). Ms Kuppusamy and Huationg called Dr Yegappan Muthukaruppan (“Dr Muthukaruppan”) and Dr Kamal Bose (“Dr Bose”), respectively, as their expert witnesses on the former’s claims for damages arising from PSL and FMEs. Dr Muthukaruppan and Dr Bose are both orthopaedic surgeons. In relation to the claim for FMEs, Ms Kuppusamy and Huationg called Dr Sankara Kumar (“Dr Kumar”) and Dr Vivek Singh (“Dr Singh”), respectively, as expert witnesses. Ms Kuppusamy also called as a witness, one Mr Mohammad Riduan bin Osman (“Mr Riduan”), Eve3r’s Operations Manager.
[11] The issues to be determined in this judgment arise pursuant to the particular heads of claim for damages sought by Ms Kuppusamy. I examine them below. The Parties’ submissions consistently apply an exchange rate of S$1 = RM3.3. I adopt this exchange rate for the purposes of my decision.
Pre-trial loss of earnings
[12] In her Reply Submissions, Ms Kuppusamy agreed with Huationg’s proposal for the relevant period in the determination of PTLE to be from November 2017 to May 2023 (ie, 67 months), and claims S$134,814.78. However, this sum mistakenly also includes a claim for overtime pay for September and October 2017. Based on the relevant period, Ms Kuppusamy’s claim is correctly for damages in the sum of S$134,150 for PTLE. This is calculated based on multipliers and multiplicands submitted by Ms Kuppusamy as set out below:
Notwithstanding the Parties’ agreement on the multiplier, Huationg submits that Ms Kuppusamy’s submission on the multiplicand is incorrect.
[13] Accordingly, the key issue in this section relates to the applicable multiplicand. This raises further sub-issues in relation to:
[14] Before considering this issue, it is useful to first summarise the position on PTLE as set out in Yap Boon Fong Yvonne v Wong Kok Mun Alvin and another and another appeal [2019] 1 SLR 230 (“Yap Boon Fong”) at [40]–[42]: (a) the courts are generally antipathic towards the idea of awarding compensation for loss which did not actually materialise (at [40]); (b) the plaintiff must prove his pre-trial losses as a matter of special damages (at [41]); (c) all pre-trial losses must be losses that have actually been incurred by the plaintiff and that can and must be specially proved (at [41] and [42]); and (d) the established approach is to “[examine] whether any actual provable loss had been suffered by the plaintiff” (at [40]).
Relevant components of Ms Kuppusamy's monthly salary
[15] Ms Kuppusamy submits that the applicable multiplicand, as set out in the table at [12] above, should comprise of three components: her (a) basic salary; (b) allowances; and (c) overtime pay. At the time of the Accident, Ms Kuppusamy’s basic salary amounted to S$700 per month, her allowances amounted to S$600 per month, and overtime pay was payable at a rate of S$5.51 per hour. Based on her submissions, Ms Kuppusamy’s position is, in effect, that she would have worked overtime for an average of 90.7 hours per month, at least for the year of 2018, for an additional S$500 per month in overtime pay.
[16] On the other hand, Huationg submits that the multiplicand should comprise only of Ms Kuppusamy’s basic salary, amounting to S$46,900 for 67 months. Huationg relies on Mr Riduan’s evidence that only the receipt of Ms Kuppusamy’s basic salary was certain. The monthly allowances were subject to Ms Kuppusamy’s full attendance and good conduct, while the overtime pay was discretionary.
[17] If the court is inclined to factor in overtime pay, Huationg submits that the quantum of damages should be S$73,840.24. Huationg came to this figure by referencing Mr Riduan’s testimony that Eve3r’s Security Officers tend to work three overtime hours per day. As Ms Kuppusamy’s employment contract with Eve3r required her to work six days per week, she would have worked overtime for 18 hours per week, or 72 hours per month. At the contractual overtime pay rate of S$5.51 per hour, Ms Kuppusamy would have earned an overtime pay of S$396.72 per month. In addition to her basic salary of S$700, the monthly multiplicand should be S$1,096.72, for a total award of S$73,840.24. Before moving on, I observe that this figure was incorrectly calculated. Multiplying a multiplicand of S$1,096.72 by a multiplier of 67 months amounts to S$73,480.24. I take this figure to be Huationg’s submission here.
[18] In response, Ms Kuppusamy submits that Huationg had misinterpreted Mr Riduan’s evidence. On re-examination, Mr Riduan had clarified that the basic salary and allowances components of Ms Kuppusamy’s monthly wages are a “package”, such that her monthly wage would be a “minimum” of S$1,300.
[19] I agree that on the evidence, Ms Kuppusamy’s monthly wage would have been at least S$1,300. In relation to the allowances, Mr Riduan testified that if not for the Accident, he expects that Ms Kuppusamy would have earned in subsequent months at least, if not more than, what she earned in August 2017 (ie, S$1,788.92). This suggests that Mr Riduan did not have any doubts as to whether she would be able to satisfy the requirements to obtain the allowances of S$600 per month. Further, Ms Kuppusamy was praised by clients during the short time that she was with Eve3r, indicating good conduct as required for receipt of allowances.
[20] In relation to overtime pay, the fact that it would have been a variable component of Ms Kuppusamy’s monthly wage does not preclude its inclusion in the multiplicand. As held in Yap Boon Fong at [40], the assessment of PTLE must be based on the provable state of affairs at the time of the Accident. Accordingly, the question is whether the evidence proves that at the time of the Accident, Ms Kuppusamy would have worked overtime, and if so, how many hours she would have worked.
[21] During the hearing, Ms Kuppusamy testified that as she was single and did not have a family, she would have consistently worked overtime if employed at Eve3r. Further, she expressed that as other Security Officers in Eve3r usually worked overtime, she would do the same. This testimony was corroborated by Mr Riduan, who stated that it was clear from the way Ms Kuppusamy spoke to him that she wanted to work overtime, as she was single and also needed the overtime pay. Further, Mr Riduan testified that Eve3r’s Security Officers did generally work overtime, contributing to increases in their monthly wages. On the evidence, I find that Ms Kuppusamy has proven that she would have worked overtime, had she continued working at Eve3r. As such, I will factor overtime pay into the multiplicand. I next assess the quantum of the multiplicand.
[22] Mr Riduan testified that Ms Kuppusamy received a gross salary of S$1,788.92 in August 2017, and S$1,635.22 in September 2017. From these figures, Mr Riduan calculated that Ms Kuppusamy worked overtime for between 78 to 82 hours in August 2017, and around 56 hours over 22 days in September 2017, as of the date of the Accident (ie, 23 September 2017). Extrapolating the latter figure for the period of 30 days, Ms Kuppusamy would have worked overtime for about 76 hours in September 2017, if not for the Accident. Taking the median point of the range provided by Mr Riduan for August 2017 and averaging the number of overtime hours worked during her two months at Eve3r, Ms Kuppusamy would have worked overtime for an average of 78 hours per month in August and September 2017. I consider this to be a reasonable initial reference point for the number of hours that she would have worked overtime every month.
[23] Nonetheless, I note that Mr Riduan highlighted that the law limits the maximum number of overtime hours worked to 72 hours per month, unless a company has an exemption to this rule. Mr Riduan testified that Eve3r had such an exemption around the time of the Accident for about two or three years. As an award for PTLE is a grant of special damages, I adopt a conservative approach towards this evidence and take the lower limit of this range to assume that Eve3r had this exemption for two years from 2017 to 2018. In light of this, I find that but for the Accident, Ms Kuppusamy would have worked overtime for 78 hours per month from November 2017 to December 2018 (ie, 14 months) and 72 hours per month from January 2019 to May 2023 (ie, 53 months).
Possibility of job promotion
[24] Ms Kuppusamy’s submissions on the multiplicand also factors in a promotion to “Senior Security Officer” (“SSO”) from January 2022 onwards, such that the multiplicand is S$2,200 in 2022 and S$2,350 in 2023.
[25] In his Affidavit of Evidence-in-Chief (“AEIC”), Mr Riduan stated that he expects that if Ms Kuppusamy were still working for Eve3r, she would presently earn at least S$2,100 per month, including allowances and overtime pay. He testified that Eve3r would promote Security Officers who have remained with the company for three to five years to the rank of SSO, where they would earn around S$2,300 to S$2,400 per month. Mr Riduan claimed that this would have been Ms Kuppusamy’s salary if she was still in the company.
[26] On Mr Riduan’s evidence, Ms Kuppusamy would have been promoted if she remained with Eve3r. Two sub-issues then arise in relation to this section:
[27] Huationg claims that there is no basis for the multiplicand to factor in an increase in basic salary following a promotion at Eve3r. In support of this submission, Huationg highlighted the high attrition rate of security guards in Eve3r, and that there are currently only three to four persons, out of 45, who earn between S$2,300 to S$2,400 per month at Eve3r.
[28] In Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR(R) 178 (“Tan Siew Bin”), Chan Seng Onn J (as he then was) explained at [25] in relation to PTLE that:
This dicta was affirmed by the Court of Appeal in Yap Boon Fong at [40].
[29] Although Eve3r suffers from a high attrition rate and there are few security guards who presently hold the position of SSO, these facts do not necessitate that Ms Kuppusamy would have left Eve3r or had her employment terminated, and consequently not enjoyed the promotion. Referencing the analysis in Tan Siew Bin, the high attrition rate connotes that there was a risk that Ms Kuppusamy would have resigned from her job at Eve3r at some point prior to being promoted to SSO. However, this risk had not materialised during the time Ms Kuppusamy was at Eve3r, and it would be unfair to impute the realisation of this risk onto her based on circumstances that are not specific to her. As such, I find that for the purposes of assessing damages for PTLE, the multiplicand should account for Ms Kuppusamy remaining with Eve3r, and consequently factor in an increase in her salary resulting from a promotion to SSO.
[30] Notwithstanding, I recognise that the promotion did not materialise during Ms Kuppusamy’s employment at Eve3r prior to the Accident. Coupled with the claim for PTLE being a claim for special damages, I will adopt a conservative approach in determining the multiplicand. According to her employment contract, Ms Kuppusamy was on probation for a period of three months (ie, from August to October 2017). Mr Riduan’s evidence was that Security Officers are promoted to SSO after remaining with Eve3r for three to five years. I will take the upper limit of this range – ie, promotion after five years of employment – and exclude the period of probation from this calculation. In other words, I assume that Ms Kuppusamy would have been promoted in November 2022. At which point, I find that the applicable multiplicand is that of the lower limit of the range provided by Mr Riduan – S$2,300 per month, inclusive of allowance and overtime pay. Assuming no changes to her monthly allowance (ie, S$600 per month) and hourly rate of overtime pay (ie, S$5.51 per hour, totalling S$396.72 per month), Ms Kuppusamy’s monthly basic salary for the year following the promotion is about S$1,303.28 per month.
Annual increments in salary
[31] As seen from the table at [12] above, the quantum of damages claimed by Ms Kuppusamy for PTLE also accounts for annual increments of S$50 to her monthly wages from 2017 to 2021, an increment of S$200 for the year of 2022, and an increment of S$150 for the year of 2023. Huationg’s submissions indicate that they do not accept any such increments to be factored into the multiplicand.
[32] Ms Kuppusamy’s employment contract does not provide for specific annual increments but states that all salary adjustments are at Eve3r’s discretion. Notwithstanding, Ms Kuppusamy’s submission for annual increments is supported by Mr Riduan’s oral evidence. He testified that the security guards in Eve3r receive annual increments to their monthly basic salary of around S$70 to S$100, depending on their individual performance. Further, Mr Riduan agreed that the annual increments sought by Ms Kuppusamy as set out in the table above at [12] are fair and reasonable.
[33] In light of Mr Riduan’s evidence, I accept Ms Kuppusamy’s claim for annual increments of S$50 to her basic salary from November 2017 to December 2021 (see also Lee Teck Nam v Kang Hock Seng Paul [2005] 4 SLR(R) 14 (“Lee Teck Nam”) at [41]–[43]). However, there is no evidence to support her claim of a S$200 increment to S$2,200 per month for 2022, and a S$150 increment to S$2,350 per month for 2023. Further, this rate of increase surpasses the range of S$70 to S$100 which Mr Riduan gave evidence for. In so far as these increments are intended to be attributed to a job promotion to SSO, I have dealt with this above at [30]. As such, I will apply an annual increment of S$50 to the relevant monthly multiplicand for every period of 12 months.
Duty to mitigate
[34] Regardless, Huationg submits that Ms Kuppusamy had not satisfied her duty to mitigate her losses and hence, the applicable multiplicand should be reduced. This duty arose from February 2018 to May 2023, following the end of her hospitalisation leave. Huationg’s position is that Ms Kuppusamy has not been as aggressive in finding employment as she could have been, bearing in mind that she could have sought assistance from employment agents and disability associations to find employment.
[35] Huationg hence submits various alternative figures of monthly salaries which could be subtracted from the applicable multiplicand, depending on the extent of mitigation the court deems reasonable:
(a) RM1,797 (S$544.55) – based on the average salary of a person in Malaysia with the same level of education as Ms Kuppusamy, per the Department of Statistics Malaysia (“DOSM”);
(b) RM1,500 (S$454.55) – based on the salary of a security guard in Malaysia, ie, a role which Ms Kuppusamy applied for; or
(c) RM1,200 (S$363.64) – based on the salary of a retail or sales assistant in Malaysia.
[36] Huationg further submits that Ms Kuppusamy could have but failed to apply for interim payment earlier and was thus responsible for the delay in securing a prosthetic which would have restored her functions.
[37] In response, Ms Kuppusamy submits that she has been unable to find gainful employment in Singapore and Malaysia since the Accident. She was fitted with her first prosthetic limb in May 2018. However, this first prosthetic leg required further assistance from a walking stick to allow her to move around. Later, this first prosthetic limb caused her pain and by 2019, she was only wearing this prosthetic at home. Ms Kuppusamy was fitted with her second and current, prosthetic limb in October 2022. Following which, she underwent a period of training, with a final fitting of this prosthetic around February 2023. She testified that she has tried looking for various jobs, including as a security officer, cashier, and sales assistant. She was not successful. She also testified that she not aware of any associations that could help disabled get jobs nor aware of employment agents who could do so.
[38] Before analysing the evidence, I highlight that the burden of proof is on Huationg to show that Ms Kuppusamy had failed to mitigate her loss (see Teo Sing Keng and another v Sim Ban Kiat [1994] 1 SLR(R) 340 at [45]–[46]).
[39] I see no reason to reject Ms Kuppusamy’s evidence. In my view, it is unreasonable to expect her to have immediately returned to work, or look for work, after the end of her hospitalisation leave in mid-January 2018, especially without the aid of any prosthetic limb. Also, although Ms Kuppusamy was fitted with her first prosthetic limb in May 2018, the issues caused by this prosthetic, especially the pain she experienced, would have made it difficult for her to return to work, even as a retail assistant.
[40] Huationg submits that these issues could have been resolved by an earlier application for interim payment. This was raised for the first time in Huationg’s Reply Submissions. As such, this claim was not put to Ms Kuppusamy, nor was she cross-examined on this during the hearing. Furthermore, Ms Kuppusamy has not had the opportunity to respond to this unsubstantiated claim. Accordingly, I find that Huationg has not satisfied its burden to prove that Ms Kuppusamy failed to mitigate her PTLEs in this respect.
[41] From her testimony in court, Ms Kuppusamy did not strike me as someone who was unwilling to look for a job. On the contrary, she appears willing to look for a job but had been unsuccessful in finding employment thus far due at least in part to her physical disability. While Huationg submits that there are associations and employment agents that can help disabled persons find employment, it has not adduced any evidence of such association or agents, or evidence that they can indeed help someone with a physical disability to find jobs.
[42] In light of the evidence before me, I find that on the whole, Huationg has not satisfied its burden to prove that Ms Kuppusamy had not mitigated her loss. Hence, I will not reduce the multiplicand.
[43] Following from the above, I award Ms Kuppusamy damages for PTLE for the period from November 2017 to May 2023 in the sum of S$124,366.04:
Time Period (No. of Months)
Multiplicand (S$)
Basic Salary
Allowance
Overtime Pay
Total (Month)
Total (Period)
Nov 2017 to Oct 2018 (12)
700
600
429.78
1,729.78
20,757.36
Nov 2018 to Dec 2018 (2)
750
600
429.78
1,779.78
3,559.56
Jan 2019 to Oct 2019 (10)
750
600
396.72
1,746.72
17,467.20
Nov 2019 to Oct 2020 (12)
800
600
396.72
1,796.72
21,560.64
Nov 2020 to Oct 2021 (12)
850
600
396.72
1,846.72
22,160.64
Nov 2021 to Oct 2022 (12)
900
600
396.72
1,896.72
22,760.64
Nov 2022 to May 2023 (7)
1,303.28
600
396.72
2,300.00
16,100.00
Total
124,366.04
Pain, suffering, and loss of amenities
[44] Ms Kuppusamy seeks damages for PSL that arise from:
Amputation of lower left limb
[45] Ms Kuppusamy seeks S$75,000 for PSL arising from the below-the-knee amputation of her lower left limb. Huationg submits that S$40,000 is sufficient.
[47] Ms Kuppusamy refers to three High Court cases and the awards of damages for PSL therein. First, Quek Yen Fei Kenneth v Yeo Chye Huat [2016] 3 SLR 1106 (“Kenneth Quek (HC)”), where the plaintiff was 20 years’ old at the time of the accident and was awarded S$80,000. There, the court considered the plaintiff’s youth at the time of the accident, the pain and suffering he endured from the surgical attempt to salvage his leg, and the fact that the plaintiff continued experiencing pain four years after the accident. Second, Hiak Chuak Kin v Teo Li Lian (Suit No 608 of 2007, High Court) (“Hiak Chuak Kin”), where the plaintiff was 40 years’ old at the time of the accident, underwent multiple surgeries, and was awarded S$80,000. Third, Tan Juay Mui (by his next friend Chew Chwee Kim) v Sher Kuan Hock and another (Liberty Insurance Pte Ltd, co-defendant; Liberty Insurance Pte Ltd and another, third parties) [2012] 3 SLR 496 (“Tan Juay Mui”), where the plaintiff was 48 years’ old at the time of the accident and was awarded S$60,000.
[48] As Ms Kuppusamy was 48 years’ old at the time of the Accident, she submits that Tan Juay Mui bears the closest resemblance to the present case, but the applicable quantum should be adjusted upwards for, first, inflation. She relies on Lee Teck Nam for her submission that the quantum of damages payable should be adjusted for inflation. The S$60,000 award in Tan Juay Mui was granted in 2012. Using the Goods & Services Inflation Calculator on the Monetary Authority of Singapore’s website (the “MAS Inflation Calculator”), the value of the award in Tan Juay Mui is S$67,587.28, or around S$68,000, in 2022. Second, Ms Kuppusamy submits that a further uplift should be applied such that she be awarded S$75,000.
[49] Huationg submits that the damages should only be S$40,000. Amongst other things, it claims that Ms Kuppusamy no longer experiences pain in the amputated region. Huationg relies on Ms Kuppusamy’s oral testimony that “there is no pain [in the amputated region]; even if there was any pain it’s much lesser”. Huationg also relies on a report dated 7 August 2021 by Ms Kuppusamy’s prosthetic expert, Mr Prasad, where he noted in relation to her left stump, “[p]hantom pain absent”.
[50] Huationg further submits that this case may be distinguished from Tan Juay Mui. First, Ms Kuppusamy did not suffer a life-threatening injury which necessitated the below-the-knee amputation, unlike the plaintiff in Tan Juay Mui. Second, the plaintiff in Tan Juay Mui suffered from various complications as a result of the accident, such as low blood pressure, sepsis, significant retrograde amnesia, phantom limb pain and depression, which Ms Kuppusamy did not experience. Third, the award in Tan Juay Mui Ms Kuppusamy relies on was a separate award for diabetic-related conditions, as opposed to being an award for leg injury. Ms Kuppusamy is not known to be diabetic. Consequently, her claim of S$60,000 by analogy to Tan Juay Mui is overstated.
[51] Additionally, Huationg avers that the quantum of damages should not include adjustments for inflation or further uplifts. It submits, first, that the range set out in the Guidelines already accounts for inflation. In support of this, Huationg relies on Quek Yen Fei Kenneth (by his litigation representative Pang Choy Chun) v Yeo Chye Huat and another appeal [2017] 2 SLR 229 (“Kenneth Quek (CA)”) at [41] and [110]. Second, Huationg submits that if the court were inclined to factor inflation into the quantum of damages, the applicable rate of inflation should be that in Malaysia (ie, approximately 3.3%) as Ms Kuppusamy has returned to Malaysia and will continue living there.
Decision
[52] Of the three precedents which Ms Kuppusamy referred me to, I agree with her that Tan Juay Mui bears the most factual similarity to the present case. This is because, in particular, Ms Kuppusamy was significantly older than the plaintiff in Kenneth Quek (HC) at the time of the accident and did not have multiple surgeries, like the plaintiff in Hiak Chuak Kin.
[53] I am unable to agree with Huationg’s submissions which seek to distinguish Tan Juay Mui from the present case. First, while it was not a “life-threatening injury” which necessitated the loss of her lower left limb, the Accident was nevertheless the cause for the loss of Ms Kuppusamy’s limb. Second, the fact that she did not suffer from the same side effects as the plaintiff in Tan Juay Mui does not preclude the former’s reference to the award there for leg injury. The plaintiff in Tan Juay Mui suffered not just a leg injury, but also a severe brain injury with blood collecting between the layers of the brain (Tan Juay Mui at [3]). This brain injury was responsible for many of the complications that the plaintiff in Tan Juay Mui suffered from, which Huationg claimed Ms Kuppusamy did not share. Significantly, Judith Prakash J (as she then was), in upholding the separate award for damages of S$170,000 granted by the court below for the plaintiff’s brain injury, took into account the complications caused by the said brain injury (at [36]). Further, when granting the plaintiff an award of S$60,000 for the leg injury, Praksah J (as she then was) observed that there were side effects, such as weakness of the plaintiff’s left side and impaired vision, which could not be attributed to her leg injury (at [54]). In other words, the court in Tan Juay Mui had considered the causes of the complications and side effects experienced by the plaintiff there and granted distinct awards of damages for the relevant injuries and complications. Third, the court in Tan Juay Mui granted two distinct awards for the plaintiff’s diabetic condition and leg injury, respectively. As such, Ms Kuppusamy’s reference to the award of S$60,000 in Tan Juay Mui is not a reliance on the award for the diabetic condition suffered by the plaintiff there.
[54] I accordingly reference the figure of S$60,000 awarded in Tan Juay Mui as the baseline of the quantum of damages to be awarded to Ms Kuppusamy.
[55] In relation to whether this figure should be adjusted for inflation, I concur with Lee Teck Nam at [13] that inflation may be factored into the quantum of damages awarded. The Court of Appeal in Kenneth Quek (CA) had also recognised at [41] that the court may take into account changes in purchasing power since the time of the precedent in its award of damages. Contrary to Huationg’s submission, Kenneth Quek (CA) at [110] does not support its claim that the range set out in the Guidelines accounts for inflation. The Court of Appeal at [110] recognised that the Guidelines were promulgated 18 years after the award in Pang Teck Kong v Chew Eng Hwa [1992] SGHC 31 was granted. In light of this passage of time, the authors of the Guidelines recommended a 40% increase in the maximum value of the award. Hence, contrary to Huationg’s submission, the dicta in Kenneth Quek (CA) at [110] suggests that awards should account for inflation where the increase in the value of money, due to the passage of time, is significant.
[56] Huationg submits that the rate of inflation should be that in Malaysia (ie, 3.3%) and the time period for which this rate of inflation should apply begins in 2010, the year that the Guidelines were published. However, this submission is of a higher inflation rate and longer time period than that claimed by Ms Kuppusamy. Ms Kuppusamy references the award in Tan Juay Mui, which was granted in 2012. Additionally, the MAS Inflation Calculator, which she used to calculate the value of the award in Tan Juay Mui, applied the rate of inflation in Singapore. Over the same period as that submitted by Huationg, this rate was only 1.2%. I find Ms Kuppusamy’s submission reasonable and thus, I will apply the parameters as submitted by her, notwithstanding Huationg’s submission.
[57] Applying the MAS Inflation Calculator, the value of an award of S$60,000 in 2012 would be S$67,587.28 in 2022. I will hence adjust the reference figure of S$60,000 for inflation to S$67,500.
[58] As to whether there ought to be a further uplift to this quantum for Ms Kuppusamy’s pain, I note that while Mr Prasad reported that she did not feel phantom pains, the fact that Ms Kuppusamy did not feel pain around the time she met Mr Prasad does not preclude the possibility of her feeling pain on other occasions. Also, when Huationg asked Ms Kuppusamy if she felt pain now, her reply was no, but “even if there was… it’s much lesser”. Her reply is hence that she did not feel pain at the point of the question, but she did feel pain on other occasions, but of a lesser degree. Ms Kuppusamy also stated while giving her testimony in court that “[her] leg [was] painful because [she had been] sitting for very long”. I find no reason to doubt her testimony during the hearing that she was experiencing pain. Her evidence is consistent with the statement by her orthopaedic surgeon, Dr Kumar, that she “has persistent left knee pain due to the scarring over the back of knee”. Additionally, Huationg’s orthopaedic surgeon, Dr Singh, also recognised that the amputation was “traumatic”.
[59] However, I do not find Ms Kuppusamy’s pain to be so severe as to justify departing from the upper limit of the range set out in the Guidelines (see Kenneth Quek (HC) at [12]–[17]; affirmed by the Court of Appeal in Kenneth Quek (CA) at [41]). In light of the evidence on the pain suffered, I grant a further S$2,000 uplift to award Ms Kuppusamy damages in the sum of S$69,500 for PSL caused by the below-the-knee amputation of her lower left limb.
Aggravation of osteoarthritis in right knee
[60] Ms Kuppusamy seeks damages for the aggravation of osteoarthritis in her right knee. She relies on Pandian Marimuthu v Guan Leong Construction Pte Ltd [2002] SGDC 189, where the court awarded S$5,000 in 2002 for osteoarthritis in the knee. Basing her claim on this figure, Ms Kuppusamy used the MAS Inflation Calculator to determine the value of this award in 2022 – ie, S$7,234.72. Ms Kuppusamy rounds this figure up and claims S$7,500.
[61] Huationg submits that no award of damages should be granted under this sub-head. As a preliminary point, Huationg submits that this claim was not sufficiently pleaded and that it did not have adequate notice of this claim. Amongst other things, Huationg claims that any aggravation of osteoarthritis in Ms Kuppusamy’s right knee was caused by her use of ill-fitting prosthetics and her decision to stop using said prosthetics without first obtaining medical advice.
Expert evidence
[62] Ms Kuppusamy and Huationg called Dr Muthukaruppan and Dr Bose (collectively, the “Experts”) as their expert witnesses for this head of claim, respectively. During the hearing, both Experts affirmed that they did not have radiological images of Ms Kuppusamy’s knees prior to the Accident. As such, they could not testify as to the changes to her knee due to the Accident. Notwithstanding, both Experts agreed that the post-Accident radiological images showed similarities in both knees. In light of this similarity, Dr Bose testified that his presumption is that the state of both knees is not related to the Accident. Dr Muthukaruppan testified that it is possible that the current osteoarthritic conditions of both knees are age-related. Huationg emphasises these views of the Experts.
[63] Ms Kuppusamy accepts the Experts’ evidence that her osteoarthritic condition in both knees is likely a pre-existing one. However, she relies on their evidence that there could have been an increase in loading on the right knee due to the amputation of her lower left limb in support of her claim.
Decision
[64] Given the radiological similarities in both knees, I find Dr Bose’s view that Ms Kuppusamy’s osteoarthritic condition is likely age-related to be compelling and logical. Even Huationg’s expert, Dr Muthukaruppan, agrees that the radiological similarities lend support to Dr Bose’s view. On the other hand, there is no evidence to support that there actually was any aggravation of osteoarthritic symptoms due to the amputation of Ms Kuppusamy’s lower left limb. I consequently disallow her claim for damages for aggravation of osteoarthritis in her right knee. In view of this, it is unnecessary for me to deal with Huationg’s objection on the ground of lack of pleading.
Non-surgical scars
[65] Finally, Ms Kuppusamy seeks S$10,000 in damages for PSL caused by extensive non-surgical scarring. Huationg submits that this has not been pleaded and that it was consequently not able to give proper attention to the evidence relevant to this claim. Its position is that no award of damages should be made.
[66] As a result of the Accident, Ms Kuppusamy received a split skin graft (“SSG”) at her left popliteal fossa (ie, back of her left knee), which left a scar measuring 9cm by 8cm. She also has two scars measuring 18cm by 6cm and 13cm by 6cm at the SSG donor site on her left thigh. Ms Kuppusamy references Kenneth Quek (HC) where the court awarded the plaintiff S$7,000 for two small scars measuring 3cm each and submits that S$10,000 was reasonable given that her scars were much larger than that in Kenneth Quek (HC).
[67] Huationg submits that in Kenneth Quek (CA), the scars suffered by the plaintiff were caused by the accident itself, without any surgical interference, unlike the scars suffered by Ms Kuppusamy. Ms Kuppusamy’s scars are also capable of being easily hidden under common articles of clothing and hence do not have adverse aesthetic effect. In the event that the court is inclined to award damages for non-surgical scarring, Huationg highlights that Ms Kuppusamy’s mature age should decrease the quantum of such award.
[68] I will deal first with Huationg’s preliminary objection on the lack of pleading as Ms Kuppusamy only surfaced this particular claim in her Closing Submissions. Notwithstanding, I observe that Ms Kuppusamy had expressly stated in her Statement of Claim that her injuries include an "[i]njury to the left popliteal region requiring skin graft". The scars for which she claims damages arose as a direct result of this skin graft.
[70] Applying the Material Facts Principle, the Court of Appeal in How Weng Fan held at [30(a)] that where a plaintiff does plead the material facts underlying a claim in negligence but does not frame this specifically as a claim in negligence, the court can find the defendant liable for negligence unless there is clear evidence that the defendant will be unduly prejudiced. In this case, I find that the material facts for this claim have been pleaded. Further, in any event, I do not consider Huationg to be unduly prejudiced, as the Parties’ dispute is centred on legal submissions, and not evidential disagreements.
[71] In Kenneth Quek (HC), the award was given at [27] in relation to scars arising directly from the accident. Surgical scars arising from the amputation stump were considered separately under the damages awarded for the amputation. The issue of non-surgical scars, as a distinct head of claim, did not arise there. The question thus arises here, as to whether an award should be given for the scars arising from the SSG. Pertinently, the SSG (and consequently the scars from it) would not have arisen but for the Accident. Huationg did not dispute this but submitted that if they had known of such a claim, they could have asked Ms Kuppusamy whether she did suffer from pain arising from having such scars. However, the consideration of damages for scarring in Kenneth Quek (HC) at [27] proceeded on an assessment of whether there was objectively an aesthetic defect. This is in contrast to the court’s earlier consideration there at [15] in relation to the plaintiff’s claim for continuing pain, which took into account both subjective (ie, the plaintiff’s views on pain) and objective evidence. In this case, I am satisfied that from the medical reports, there is sufficient evidence of the nature of the scar, such that Huationg is not unduly prejudiced from having this claim considered.
[72] I will consequently award Ms Kuppusamy damages for the scars that she received as a result of the SSG. In respect of quantum, I note that the plaintiff in Kenneth Quek (CA) was 20 years’ old at the time of the accident while Ms Kuppusamy was 48 years’ old. I also acknowledge that the scars she suffered, on the back of her left knee and on her left thigh, are easily concealed under common articles of clothing. This is similar to that of the plaintiff in Kenneth Quek (CA), whose scars were on his right knee and right shoulder. Notwithstanding, Ms Kuppusamy’s scars are substantially larger compared to those of the plaintiff in Kenneth Quek (CA). As such, I award Ms Kuppusamy S$7,000 for her non-surgical scars.
[73] In summary, I award Ms Kuppusamy a total of S$76,500 in damages for PSL.
Loss of future earnings
[74] Ms Kuppusamy also claims damages for LFE. As a preliminary matter, I note that Huationg’s position on LFE is inconsistent. It submits on the one hand that there should be an award of S$57,380 for LFE and no award for LEC as the latter is included in the LFE calculations. At the same time, Huationg also submits that there should be no award for LFE. As Huationg has not provided submissions as to why the LFE award should be $57,380 but has made submissions to justify why there should be no award of LFE, I will examine its case on the basis of the latter.
[75] In Mykytowych, Pamela Jane v V I P Hotel [2016] 4 SLR 829 (“Mykytowych”), the Court of Appeal explained at [140] that an award of LFE is “a form of special damages awarded for real assessable loss proved by evidence (see Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40 at 42)” [emphasis in original]. In assessing damages for LFE, the Court of Appeal elaborated at [141] that:
[76] In Singapore, the method for calculating LFE is the multiplier-multiplicand approach, as affirmed in Kenneth Quek (CA) at [42]. This approach involves determining the multiplier and the multiplicand, and multiplying the two figures to calculate the present value of losses in earnings that Ms Kuppusamy will suffer in the future.
Multiplicand
[77] I will first assess what the multiplicand should be. Ms Kuppusamy submits that the multiplicand should be calculated based on a monthly wage of S$2,350. This figure is the median point of the salary range provided by Mr Riduan of a SSO – ie, S$2,300 to S$2,400 per month (see [25] above). Ms Kuppusamy expects that it will take her three to four months to find gainful employment, from May to August 2023. Hence, the applicable multiplicand for this period should be the full sum of S$2,350. From September 2023 (inclusive) onwards, Ms Kuppusamy submits that she would earn about RM1,200 (S$363.64) per month. On this basis, the applicable multiplicand should be S$1,900 – ie, the difference between the monthly wage of S$2,350 she would have earned and the S$363.64 she expects to earn, rounded down.
[78] Huationg submits that, first, the basis of the multiplicand should not be S$2,350 as the range provided by Mr Riduan is not a reasonable estimate of Ms Kuppusamy’s future earnings. Second, the multiplicand from September 2023 onwards should be lower, on the basis that Ms Kuppusamy is likely to earn a higher monthly salary of RM1,757 (S$532.42).
[79] From the Parties’ submissions, two sub-issues arise:
(a) what quantum should form the basis of the assessment; and
(b) what amount should be deducted from the figure derived above to account for mitigation of Ms Kuppusamy’s losses.
Basis of assessment
[80] Ms Kuppusamy submits that the multiplicand should be based on a monthly wage of S$2,350 (see [77] above). Huationg submits that the multiplicand should be based only on her basic salary of S$700, excluding allowances and overtime pay.
[81] Ms Kuppusamy testified that if not for the Accident, she would have continued working in Singapore and presently be a SSO. Her evidence on this was not challenged.
[82] As canvassed above, the evidence before me suggests that Ms Kuppusamy is likely to have satisfied the requirements for the monthly allowances, which is given to employees as part of a “package”. Additionally, the evidence also shows that she would have worked overtime for about 72 hours per month and have been promoted to SSO. Consequently, and consistent with my finding above at [19]–[21] in relation to PTLE, I find it reasonable for the multiplicand to account for the basic salary, allowances, and overtime pay that Ms Kuppusamy would have earned if she remained at Eve3r. Notwithstanding, I refer to the analysis at [33] above and reiterate that Ms Kuppusamy’s claim that her monthly wage would have been S$2,350 per month is not justified. I also observe that she did not claim that the multiplicand used to assess damages for LFE should factor in annual increments in her basic salary. As such, I will apply S$2,300 per month as the base for determining the applicable multiplicand.
Mitigation of losses
[83] Ms Kuppusamy stated that she is likely to find employment as a sales assistant in three to four months (ie, she would be gainfully employed by September 2023). In her written submissions, she claims that she would earn RM1,200 per month as a sales assistant. However, her oral evidence was that she expected to earn RM1,500 per month. In light of her testimony that this figure does not account for future increases in salary, which would decrease the loss she suffers and the amount of damages Huationg is liable for, I will take the higher figure of RM1,500 per month as the monthly wage of a sales assistant in Malaysia.
[84] Huationg submits that there should be no award of damages for LFE as Ms Kuppusamy is capable of returning to her pre-Accident job as a security guard in Singapore. In support of its submission, Huationg relies on: (a) Ms Kuppusamy’s testimony that she is capable of undertaking employment as a security guard, and had hence applied for a job as a security guard in Malaysia; (b) the evidence of its prosthetic expert, Ms Gurusamy, that Ms Kuppusamy is able to work as a security guard with the use of the “Mechanically Controlled Prosthetic” (“MCP”) that Ms Gurusamy recommended; (c) Mr Riduan’s testimony for the claim that Eve3r is willing to re-employ Ms Kuppusamy; and (d) the lack of evidence proving that she is unable to find work as a security guard in Singapore.
[85] In the event where the court is inclined to find that Ms Kuppusamy is indeed unable to return to work as a security guard in Singapore, Huationg submits that there is no evidence to support the proposition that she is limited only to working as a sales assistant. Huationg highlights that other persons in Malaysia with the same level of education as Ms Kuppusamy earn about RM1,757 (S$532.42). As there are other employment opportunities available, and given Ms Kuppusamy’s level of education, the multiplicand should factor in a deduction of RM1,757 (S$532.42).
[87] Huationg’s position is that Eve3r should have taken steps to determine whether the requisite conditions for re-employing Ms Kuppusamy were satisfied. However, this position is unfounded. It fails to recognise that Eve3r owes no obligation to Ms Kuppusamy and is under no duty to check with their customers if they would indeed have accepted someone who is an amputee as a Security Officer. Hence, the fact that Eve3r did not make further checks does not diminish Eve3r’s position, as set out by Mr Riduan, that they would hire Ms Kuppusamy only if the requisite conditions are satisfied. Accordingly, the fact that Eve3r is conditionally willing to re-employ Ms Kuppusamy does not justify denying her an award of damages for LFE.
[88] While Mr Riduan’s statement was made on behalf of Eve3r as Ms Kuppusamy’s former employer, I consider that the difficulties that Mr Riduan raised are likely to also reflect the difficulties faced by other companies in Singapore when considering whether to employ her as a security guard. Ms Kuppusamy will likely face similar obstacles when applying to other companies in Singapore to be a security guard. Huationg has not in its cross-examination of Mr Riduan or Ms Kuppusamy suggested that this may not be so. Hence, in view of Mr Riduan’s extensive evidence highlighting the difficulties of hiring a disabled person as a “Security Officer”, I find that Ms Kuppusamy has, on balance, sufficiently shown that it is not likely that she would be able to find work as a security guard in Singapore, given her disabled condition.
[89] Additionally, I observe that Ms Gurusamy had not considered that a security guard has patrolling duties, sentry duties or guardhouse duties, and that a certain level of fitness is needed to handle emergency situations when she claimed that Ms Kuppusamy would be capable of returning to her job as a security guard with use of the MCP. Ms Gurusamy also recognised that there are several limitations with the MCP in relation to handling inclines, stairs and movement on flat ground. Therefore, even if Ms Kuppusamy had been fitted with the MCP, she would have been limited in her ability to perform the duties of a security guard.
[90] Ms Kuppusamy testified that she is likely to obtain employment as a sales assistant in Malaysia, with a salary of RM1,500 (S$454.55). For the reasons above, I accept her evidence that this is her likely employment, and also accept her oral evidence on the likely salary. I note, in any event, that the 1st Defendant submits, albeit in relation to PTLE, that the salary of a security guard in Malaysia would also be RM1,500 (S$454.55). Hence, I will deduct S$454.55 from the base monthly wage of S$2,300 to obtain a multiplicand of S$1,845.45 per month, applicable from September 2023 onwards.
[91] For completeness, I observe that although the average monthly wage of a person working in Malaysia with the same education level as Ms Kuppusamy is RM1,757 (S$532.42), as stated by the DOSM, there is no evidence that this figure applies equally to persons of the same education level and disability as her. As such, I find that it would be inappropriate to factor this figure into the multiplicand on the facts of the present case.
Multiplier
[92] The multiplier is “the mathematical tool used to calculate the lump-sum present value of the stream of future periodic losses across … the remaining working life … of the claimant”: Kenneth Quek (CA) at [42]. In Poh Huat Heng Corp Pte Ltd and others v Hafizul Islam Kofil Uddin [2012] 3 SLR 1003 (“Hafizul”), the Court of Appeal noted at [48] that there are at least four approaches that may be adopted in determining the multiplier: (a) referencing the multiplier awarded in comparable cases (the “Precedent Approach”); (b) applying a pure arithmetical discount to the expected period of future loss on account of accelerated receipt and other vicissitudes of life (the “Arithmetic Approach”); (c) adopting the multiplier set out in actuarial table(s) (the “Actuarial Approach”); and (d) applying a formula fixed by legislation.
[93] In relation to determining the multiplier, two issues arise:
Number of working years remaining
[94] Ms Kuppusamy submits that her remaining number of working years should be calculated based on a retirement age of 63 years’ old. She relies on Mr Riduan’s oral evidence that the oldest Malaysian citizen working at Eve3r as a “Security Officer” is 62 years old and that this Security Officer’s work permit from the MOM had been extended until the age of 63. As Ms Kuppusamy is presently 54 years’ old, she calculates that she has nine more working years and that the multiplier should be determined accordingly.
[95] On the other hand, Huationg submits that the minimum retirement age in Malaysia is 60 years’ old. Therefore, Ms Kuppusamy has a remaining working life of five years and eight months as of the assessment of damages hearing. This submission, and the evidence supporting it, was raised for the first time, after the trial, in Huationg’s Reply Submissions. As such, Ms Kuppusamy has not had the opportunity to cross-examine Huationg or any expert on this, or adduce evidence in response. Accordingly, I do not allow Huationg’s application to adduce such evidence after the trial, nor accept its submission. For completeness, I observe that in any event, such evidence is not germane to the issue at hand. 60 years’ old is the minimum retirement age, prior to which a Malaysian employer may not retire an employee. Huationg has not shown that there is a legislative bar precluding Ms Kuppusamy from continuing to work beyond this minimum retirement age. Moreover, this minimum retirement age applies to persons working in Malaysia and not Singapore, where Ms Kuppusamy would have continued working but for the Accident.
[96] I accept Ms Kuppusamy’s submission, based on Riduan’s evidence, that she could have worked as a security guard at Eve3r until the age of 63. As she was born in February 1969, she would turn 63 years’ old in February 2032. Ms Kuppusamy claims damages for LFE for the period starting May 2023. However, in light of the Parties’ submission for damages for PTLE to include the loss of earnings for May 2023, the relevant period for assessing LFE begins from June 2023. Ms Kuppusamy has not submitted as to whether the remaining number of working years should be calculated with reference to the end of the year she turns 63 years’ old (ie, 31 December 2032) or the date on which she turns 63 years’ old (ie, 4 February 2032). As damages for LFE constitute special damages, I will adopt a conservative approach and find that the relevant period for determining the multiplier ends on the date which Ms Kuppusamy turns 63 years’ old (ie, 4 February 2032). Consequently, eight years and eight months remain in Ms Kuppusamy’s working life, including the three months she expects to spend finding employment. The multiplier should hence be calculated on the basis of 8.67 years remaining.
Approach for assessing the multiplier
[97] Referencing Hauw Soo Hoon et al, Actuarial Tables with Explanatory Notes for use in Personal Injury and Death Claims (Academy Publishing, 2021) (“Actuarial Tables”), Ms Kuppusamy submits that if the Actuarial Approach is adopted, the multiplier should be 8.3. On the other hand, if the Arithmetic Approach is adopted, the multiplier should be 7.97. Huationg did not submit on which approach should be adopted, but did submit in relation to FMEs that the multiplier should not be determined with reference to the Actuarial Tables as this applies only to Singapore citizens.
[98] In Pollmann, Christian Joachim v Ye Xianrong [2021] 5 SLR 1111 (“Pollmann”), the court held at [16]:
[99] Based on the Parties’ submissions, and the court’s holding in Pollmann, two sub-issues arise in relation to the calculation of the multiplier:
(a) whether Ms Kuppusamy can rely on the Actuarial Tables; and
(b) if not, what the outcome of adopting the Arithmetic Approach is.
(1) Reliance on the Actuarial Tables
[101] Even if the court does not adopt the Actuarial Approach with reference to the Actuarial Tables, Ms Kuppusamy submits that the multiplier derived from the Actuarial Tables should not be totally excluded. The Personal Injury (Claims Assessment) Review Committee (“PIRC”), using data from the Central Intelligence Agency World Factbook on life expectancy, found that there was no significant impact after applying the mortality rate in Bangladesh and China compared to a Singaporean male aged 30 (multiplier of 24.1 and 23.7 versus 24.6 respectively). Ms Kuppusamy submits that on this basis, the multiplier derived based on the Actuarial Tables can act as a “check-post” for the Court in selecting the appropriate multiplier.
[102] Huationg submits, albeit in relation to the multiplier for FME, that the multipliers set out in the Actuarial Tables should not apply. In Hafizul, the Court of Appeal at [53] rejected an adoption of the United Kingdom’s Ogden Table in Singapore “because [the Ogden Tables] are based on projected mortality rates in the UK”. Applying the same reasoning, Huationg’s position is that the Actuarial Tables should not apply to foreign plaintiffs.
[103] It is undisputed that the Actuarial Tables are based on data of the life expectancy of Singapore residents and that Ms Kuppusamy is a Malaysian citizen. In the Explanatory Notes to the Actuarial Tables, there is an explicit caveat that the multipliers in the Actuarial Tables are based on the mortality rates of Singapore residents, and hence the use of the tables may not be suitable for non-Singapore residents such as migrant workers. In addition, three significant elements are built into the Actuarial Tables: (a) they are based on a yield curve that represents expected investment returns for investments of different periods of time in Singapore; (b) it caters for inflation by adopting the historical average price inflation in Singapore of 2%; (c) there is a built-in mortality improvement of 2.6% per annum for both genders in Singapore, derived using a simple average of the mortality improvement over the past ten years. Ms Kuppusamy has not submitted as to how the multiplier derived from the Actuarial Tables can be adjusted to account for the differences between these factors and that in Malaysia.
[104] While the Preface to the Actuarial Tables mentions that the PIRC used data from the Central Intelligence Agency World Factbook on life expectancy in Bangladesh and China to arrive at equivalent multipliers for a Chinese and Bangladeshi male, it does not state the methodology used to derive these equivalent multipliers. Consequently, it is not clear if Ms Kuppusamy’s approach of applying a discount to the multiplier derived from the Actuarial Tables to reflect only differences in life expectancies is sufficiently robust. This approach is also not substantiated with any submissions or evidence. Moreover, as highlighted above, the Actuarial Tables contain three significant elements that are peculiar to Singapore and Ms Kuppusamy has not addressed how these elements are taken into account by her proposed discount. In view of the above, I do not consider the multiplier set out in the Actuarial Tables, with or without Ms Kuppusamy’s proposed adjustment for life expectancy, to be directly applicable here. It is, at most, a reference point, and even then, to be referred to with caution.
(2) Arithmetic Approach
[105] In the alternative, Ms Kuppusamy submits that if the Actuarial Tables do not apply because she is a migrant worker, the Arithmetic Approach using the formula set out in Kenneth Quek (CA) at [72] should be adopted.
[106] At the outset, I note that Ms Kuppusamy’s submission for the formula in Kenneth Quek (CA) to apply, includes the discount rate applied therein. In Kenneth Quek (CA), the Court of Appeal observed at [78] that “the implicit rate of return for awards of damages in Singapore has been between 4% to 5% per annum”. Notwithstanding, the court there applied a discount rate of 5.44% because the relevant number of periods was 50 years. Despite this significantly longer time period compared to the present case, I note that Ms Kuppusamy did not submit for a lower discount rate. Huationg also did not make any submissions in this regard. Accordingly, my analysis proceeds on the basis of adopting a discount rate of 5.44%.
[107] Applying a discount rate of 5.44% per annum on the basis of nine remaining working years, Ms Kuppusamy submits that the multiplier should be 7.97. However, I observe that this multiplier is calculated based on ten remaining working years, not nine years as she submits. Based on her submission of nine remaining working years, referencing the Annexure of Kenneth Quek (CA), the multiplier sought by Ms Kuppusamy should be 7.35, and not 7.97. As such, I will consider her submission with reference to a multiplier of 7.35.
[108] Before giving my decision on this, I reiterate that the relevant time period to apply to the formula set out in Kenneth Quek (CA) would be 8.67 years (ie, the remaining number of working years that Ms Kuppusamy has), as opposed to nine years, as she submitted. I also make one additional clarification. As recognised in Kenneth Quek (CA) at [43(b)], the multiplier is undergirded by, amongst other things, “the receipt of compensation for the future losses by the claimant as an immediate lump sum, which can almost invariably be invested at a rate over and above that of inflation to make a profit”. This lump sum payment is the aggregate of periodic, usually annual, payments that may be paid out, hypothetically speaking, at the beginning or the end of each period (eg, 1 January or 31 December). Depending on the court’s decision as to whether each periodic payment should take place at the beginning or the end of the period, the relevant formula differs. The effect of the decision as to payment date is that, for example, the multiplier for payments on 1 January is higher than that for payments on 31 December.
[109] The table in the Annexure of Kenneth Quek (CA) sets out payments that begin at Year 0 (ie, at the beginning of the period, when the award is granted by the court; eg, 1 January). The present value of this first payment, as a fraction of its nominal value, is 1.00 – ie, the first payment is not discounted. This suggests that the formula applied there to calculate the applicable multiplier connotes that the periodic payment takes place on 1 January:
Here, “n” refers to the number of periods (in years) while “r” refers to the applicable discount rate.
[110] In contrast, the High Court in Pollmann at [78] and Muhammad Adam bin Muhammad Lee (suing by his litigation representatives Noraini bte Tabiin and Nurul Ashikin bte Muhammad Lee) v Tay Jia Rong Sean [2022] 4 SLR 1045 at [197] applied the following formula to the calculation of the multiplier:
Similarly, “n” refers to the number of periods (in years) while “r” refers to the applicable discount rate. The effect of this formula is that the “payments” are not treated as beginning at Year 0 (ie, when the award is granted by the court). Instead, the first payment is treated as occurring at the end of Year 0 (eg, on 31 December). As such, this first payment must also be discounted according to the relevant discount rate, as reflected in the differences between the applicable formula in Kenneth Quek (CA) and Pollmann.
[111] On the facts of the present case, and Ms Kuppusamy’s submission for the formula in Kenneth Quek (CA) to be used (see [105] above), I will assess the damages for LFE on the basis of periodic “payments” at the beginning of the relevant period. Applying the discount rate submitted by Ms Kuppusamy of 5.44% and 8.67 years as the number of periods, the applicable multiplier is 7.14 (to two decimal places):
[112] For completeness, I observe that the applicability of the Precedent Approach is limited to that of a “check” to ensure consistency with cases involving similarly situated claimants (Kenneth Quek (CA) at [54]). The lack of information about the real interest rates in Malaysia also affects the reliability of using the Precedent Approach here. In Hafizul, the plaintiff returned to Bangladesh (and was to invest his lump sum award in Bangladesh) but no real interest rate information on Bangladesh was available. Having observed this, the Court of Appeal in Kenneth Quek (CA) stated at [53] that simply applying the multipliers used in past cases which involve local claimants would be unsatisfactory where the claimant in the instant case is a foreigner. In this case, Ms Kuppusamy is a Malaysian citizen who will be living in Malaysia (and likely investing her lump sum award there), but no information on real interest rates in Malaysia has been adduced by either party.
[113] Further, neither party surfaced any precedent which has used a multiplier that could apply in respect of Ms Kuppusamy’s claim for LFE. I note that Huationg highlights, in relation to the multiplier for FMEs, Toh Wai Sie and another v Ranjendran s/o G Selamuthu [2012] SGHC 33 (“Toh Wai Sie”). Huationg’s submission is that this case is not applicable and Ms Kuppusamy has not relied on Toh Wai Sie in her submissions. Nevertheless, Toh Wai Sie provides a reference point of an applicable multiplier, in the absence of other precedents. There, the plaintiff had a remaining life expectancy of nine years, similar to the number of years remaining of Ms Kuppusamy’s working life. No discount was applied, and the multiplier used by the court was nine.
[114] I next compare the multiplier derived from the Actuarial Tables (ie, 8.30), with that derived from the Arithmetic Approach (ie, 7.14), and the multiplier used in Toh Wai Sie (ie, 9) per the Precedent Approach, for the purposes of cross-checking. The common limitation with each of the approaches is that the Parties have not adduced evidence of the real interest rates or the yield curves in Malaysia for a proper comparison with that in Singapore. Notwithstanding, the multiplier derived from the Arithmetic Approach, applying the discount rate Ms Kuppusamy submits, does not deviate too excessively as to be unduly inconsistent with past cases or the Actuarial Tables. Additionally, comparing the multiplier to that which she submits (ie, after correcting for the number of periods, see [107] above), the multiplier of 7.14 is not unfair to Ms Kuppusamy on the facts of this case. I will hence adopt the multiplier of 7.14 derived from the Arithmetic Approach.
Calculating damages for LFE
[115] Before calculating the quantum of damages for LFE by multiplying the multiplier by the multiplicand, I first address an oversight in Ms Kuppusamy’s submissions on quantum. Applying the Arithmetic Approach as set out in Kenneth Quek (CA), she claims that the quantum of damages for LFE should be S$191,116, based on the following:
Time Period
Multiplicand
Multiplier
Total
May to Aug 2023(ie, 4 months)
S$2,350
-
S$2,350 x 4 months = S$9,400
Sep 2023 to Retirement(ie, 9 years)
S$1,900
7.97
S$1,900 x 12 months x 7.97 = S$181,716
Total Quantum Claimed by Plaintiff
S$191,116
[116] It is evident from the table above that Ms Kuppusamy did not apply the multiplier to the period from May to August 2023, during which she submits she would be looking for employment. A multiplier incorporates an appropriate discount rate to account for the present value of the total award. In other words, no discount rate was applied to the damages claimed for the period from May to August 2023. Furthermore, the effect of Ms Kuppusamy’s method of calculation is that she would receive an award of damages comprising of “payments” for a period of nine year and four months, and not nine years.
[117] In light of my observations, I do not adopt Ms Kuppusamy’s method of calculation. Instead, given that the assessment of damages took place in May 2023, and taking the period from June 2023 to February 2032 (months inclusive – ie, 105 months), I derive the annual multiplicand as follows.
Time Period
Gross Multiplicand - Deduction for Mitigation
Net Multiplicand (Month)
Net Multiplicand (Time Period)
Jun to Aug 2023 (3 months)
S$2,300 – S$0
S$2,300
S2,300 x 3 = S$6,900
Sep 2023 to Feb 2032(102 months)
S$2,300 – S$454.55
S$1,845.45
S$1,845.45 x 102 = S$188.235.90
Total Amount Payable
S$195,135.90
Average Monthly Multiplicand
S$1,858.44
Annual Multiplicand
S$1,858.44 x 12= S$22,301.28
[118] Multiplying the annual multiplicand of S$22,301.28 by the multiplier of 7.14, I award Ms Kuppusamy damages for LFE in the sum of S$159.231.14.
Loss of earning capacity
[119] Ms Kuppusamy seeks damages for LEC while Huationg submits that there should not be any such award.
[120] Three issues arise in relation to the Parties’ submissions on Ms Kuppusamy’s claim for damages for LEC:
Claims for both LEC and LFE
[121] Ms Kuppusamy submits that it is settled law that damages for both LEC and LFE can be awarded as they are both distinct and different heads of claims. She relies on Mykytowych at [140].
[122] Huationg submits that there should not be such an award. Instead, any damages for LEC would be included in the damages for LFE. The damages claimed for LEC and LFE arise out of the loss of earnings which Ms Kuppusamy would have earned as a security guard in Singapore. To award both LEC and LFE would amount to double recovery. Huationg relies on Chang Ah Lek and others v Lim Ah Koon [1998] 3 SLR(R) 551 (“Chang Ah Lek”) at [31].
[123] I note that Chang Ah Lek did not specifically address the issue of whether a claim for LEC can be made even if an award for LFE has been made. Indeed, the Court of Appeal’s decision at [32] to award damages for LFE in place of LEC, was based on its finding that the evidence before the court supported damages for LFE, as opposed to LEC. Regardless, this specific issue was considered by the Court of Appeal in Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Samuel Chai”), Mykytowych and Lua Bee Kiang. These decisions support Ms Kuppusamy’s position that LEC and LFE are distinct heads of claim and that an award of damages for one head does not preclude an award of the other.
[124] In Mykytowych, the Court of Appeal explained the distinction between LEC and LFE at [140]. There, the Court of Appeal explained that LEC and LFE are distinct types of awards and that it is open to grant both types of awards:
[125] The Court of Appeal elaborated at [141] on the approaches to assess the quantum of damages for LFE and LEC. When determining the quantum of damages for LEC, the court:
[126] Further, the Court of Appeal in Samuel Chai at [23] rejected the argument that where a substantial award was made for LFE, only a nominal award for LEC should be given:
[127] It is clear from the Court of Appeal’s explanations in these cases, and in Lua Bee Kiang, that a plaintiff can claim damages for both LFE and LEC, and that a substantial award of damages for LFE does not bar an award for LEC.
Whether damages for LEC should be award and if so, in what amount

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Poongothai Kuppusamy v Huationg Contractor Pte Ltd & Other

Grounds of decision

Introduction

Facts

The parties

Background to the dispute

Procedural history

Issues to be determined

Pre-trial loss of earnings

Relevant components of Ms Kuppusamy's monthly salary

Possibility of job promotion

Annual increments in salary

Duty to mitigate

Time Period (No. of Months)

Multiplicand (S$)

Basic Salary

Allowance

Overtime Pay

Total (Month)

Total (Period)

Nov 2017 to Oct 2018 (12)

700

600

429.78

1,729.78

20,757.36

Nov 2018 to Dec 2018 (2)

750

600

429.78

1,779.78

3,559.56

Jan 2019 to Oct 2019 (10)

750

600

396.72

1,746.72

17,467.20

Nov 2019 to Oct 2020 (12)

800

600

396.72

1,796.72

21,560.64

Nov 2020 to Oct 2021 (12)

850

600

396.72

1,846.72

22,160.64

Nov 2021 to Oct 2022 (12)

900

600

396.72

1,896.72

22,760.64

Nov 2022 to May 2023 (7)

1,303.28

600

396.72

2,300.00

16,100.00

Total

124,366.04

Pain, suffering, and loss of amenities

Amputation of lower left limb

Decision

Aggravation of osteoarthritis in right knee

Expert evidence

Decision

Non-surgical scars

Loss of future earnings

Multiplicand

Basis of assessment

Mitigation of losses

Multiplier

Number of working years remaining

Approach for assessing the multiplier

(1) Reliance on the Actuarial Tables

(2) Arithmetic Approach