Kwok Seng Fatt Jeremy v Choy Chee Hau

The plaintiff was 21 years of age at the time of the accident on 24 June 2000 and was serving his National Service. Interlocutory judgment was entered for the plaintiff at 100% liability against the Defendant on 21 January 2002. An interim payment of $80,000.00 was made following interlocutory judgment. The Interveners, being the insurers of the Defendant’s vehicle, disclaimed liability following the Defendant’s conviction for drunk driving, but intervened in the proceedings in view of their potential liability.

[2] The plaintiff claimed for damages under the following heads:

$306,000.00

$11,220.00

$5,304.00

$36,210.00

$100,000.00

$6,500.00

$108,638.16

$254,771.86

$2,601.00

$183,600.00

$29,057.99

$20,400.00

$576,000.00

$25,811.31

$344.47

$780.00

$412.00

$18,106.45

$9,338.00

$1,505.00

$46,067.00

$19,792.00

$2,470.00

$1,237.00

$73,278.00

$345.00

[3] Having heard all the evidence and reviewed submissions from counsel for both parties, the following award is made:

[4] The plaintiff made the following submissions for pain and suffering:

$160,000.00

$10,000.00

$12,000.00

$4,000.00

$50,000.00

$40,000.00

$30,000.00

Counsel differed in their treatment of the various items. Mr Subir argued that there was an overlap between items (a) and (e), on the basis that item (a) had resulted in the plaintiff’s loss of the use of his legs, while item (e) had resulted in him losing much of the use of his right hand. Consequently, the plaintiff ought to be treated as a quadriplegic, save that he still had one good arm. On that basis, Mr Subir submitted a global claim of $180,000.00 for items (a) and (e). Mr Ramesh, on the other hand, submitted $80,000.00 for item (a) and $1,440.00 for item (e), on the basis that item (e) overlapped with items (b) and (c). Mr Ramesh also argued that item (f), loss of sexual function, ought to be considered together with item (a).

[5] I was of the view that when considering the issue of overlap, it was more appropriate to treat items (a) and (e) together, rather than items (b), (c) and (e). This was because the plaintiff’s loss of use of his right hand was a factor which was more properly considered together with the loss of use of his legs. Items (b) and (c), on the other hand, did not have any relation to the issue of the plaintiff’s loss of use of his limbs. At the same time, I was of the view that Mr Subir had over-stated the matter when he argued that the plaintiff could be likened to a quadriplegic. It was to be noted that the plaintiff’s doctor, Dr Adela Tow, had testified that although the plaintiff had lost much of the use of his right hand, he had regained much of the use of his right arm. After taking into account the various authorities cited by counsel, I awarded $160,000.00 for items (a), (e) and (f). As for items (b) and (c), Mr Ramesh had submitted $8,000.00 and $8,100.00 respectively, on the basis that these two injuries overlapped. I agreed that there was some overlap in relation to these two injuries and made a total award of $18,000.00 for both injuries.

[6] Turning to item (d), Mr Ramesh submitted $1,500.00 under this head. I was of the view that this was too low, in light of their widespread nature, and hence awarded $4,000.00 for the abrasions. Finally, as to item (g), reactive depression, Mr Ramesh submitted that the plaintiff should only be awarded $4,500.00. I did not find the authority, Balachandar v Asiatic Development Bhd & Anor [1995] 1 MLJ xlviii, tendered by Mr Ramesh in this respect to be helpful, as it was an award made by a Malaysian court, while Mr Subir had tendered local authorities in support of his claim. However, I noted that the plaintiff’s mother, Ms Ho Wan Khin, had testified that his mental state had improved by a lot since the accident, and further, that the plaintiff’s psychiatrist, Dr Ang Peng Chye, had not seen the plaintiff for quite some time. Consequently, I awarded $20,000.00 for reactive depression.

[7] Following from the above, the total award to the plaintiff for pain and suffering was $202,000.00.

[8] In determining the proper amounts to award under items (ii) to (xiii), it was first necessary to consider the applicable multipliers. Mr Subir had used a multiplier of 17 years for items (ii) to (xii), and a multiplier of 16 years for item (xiii), while Mr Ramesh submitted a multiplier of 13 years. A relevant consideration in this area was Dr Tow’s testimony that spinal cord patients such as the plaintiff would have a reduced life expectancy of 5 to 10 years. On that basis, I did not consider it unreasonable to expect the plaintiff to live to the age of 60. In the premises, the multiplier used by Mr Ramesh of 13 years was far too low and I took the view that a multiplier of 16 years across the board would be appropriate.

[12] Finally, the plaintiff’s claim under item (vi) was based on $250.00 per visit multiplied by 26 visits, on the basis that Dr Ang had said that he would need a year of fortnightly treatment to come to terms with his loss. Mr Ramesh, on the other hand, submitted that no award should be made for this item as the plaintiff had stopped his psychotherapy treatment of his own accord and had not approached his parents for help in paying his psychotherapy fees. More importantly, the plaintiff had resumed the semblance of a social life and had gone on holiday just after he stopped seeing Dr Ang. I was of the view that the plaintiff probably did not need psychotherapy treatment. However, I made some allowance that he might need it in the future, on the basis of Dr Ang’s diagnosis that he was still a very lonely person. Hence, I awarded $2,000.00 under item (vi).

[17] In light of the foregoing, after applying a 15% discount for the wage bill, the agency fees and the medical bills and adding the award for the levy and the food and lodging, I awarded $71,279.80 for item (vii).

[21] The claim under item (vii) was made on the basis that the total amount spent on toiletries from December 2000 to September 2003 was $18,106.45, ie an average of $532.54 per month. Mr Ramesh’s submission of $520.00 per month was based on receipts submitted by the plaintiff. I accepted Mr Subir’s submission and awarded $102,247.68 for item (vii).

[23] For item (xi), the plaintiff’s claim was based on the testimony of Raja Singh, the plaintiff’s supplier of paraplegic equipment, who had testified as to the expected lifespan of the equipment. Mr Ramesh argued, however, that the claim ought to be revised in that Mr Raja, being in the business of supplying such equipment, would give self-serving evidence as to the lifespan of the equipment. Instead, it could be estimated that the equipment would last a further third of its estimated lifespan. I saw no reason to infer an ulterior motive on Mr Raja’s part and accepted his testimony on this matter. Using the multiplier of 16 years, I awarded the full amount claimed for the tyres (being $60.00, replaceable every 2 years), the Roho cushion (being $600.00, replaceable every 3 years), the customised wheelchair (being $3,700.00, replaceable every 5 years), the deluxe commode (being $400.00, replaceable every 5 years) and the Spenco mattress (being $500.00, replaceable every 5 years). As for the folding commode, I took the view that the expense incurred in replacing it every five years was not justified, given that it was only of use on occasions when the plaintiff travelled, and, for the reasons explained in the next paragraph, the plaintiff would not travel very often. Hence, I awarded $5302.86 for this item, being the amount Mr Ramesh was willing to concede for this item, which in my view was already on the generous side, and after making the necessary adjustments to account for the difference in multipliers used. I also made no award for the cloud cushion as Mr Subir had conceded that it was not in fact needed. On this basis, I awarded $23,702.86 under item (xi).

[25] Finally, as to item (xiii), the plaintiff’s claim of $576,000.00 for lost earnings was based on a monthly salary of $3,000.00, inclusive of Central Provident Fund contributions and after deducting expenses. Mr Ramesh for his part cast doubt on the plaintiff’s ability to earn the sums claimed and submitted that the plaintiff should not recover for loss of future earnings. He pointed out that the plaintiff neither passed his Primary School Leaving Examination nor obtained a full certificate from the Institute of Technical Education (ITE). Although the plaintiff had been working as a salesman at Alfred Dunhill prior to his National Service, he had no firm plans to work there. I agreed to a large extent with Mr Ramesh’s submissions. It was the evidence of Ms Goh Hui Har from Alfred Dunhill that the company had not needed his services all the time, but would instead call on him as and when they needed an extra hand. Moreover, Alfred Dunhill had downsized significantly from the time the plaintiff worked for them, such that they would have no place for the plaintiff after he completed his National Service. I also found the plaintiff’s stated plan to return to ITE after his National Service and earn a full certificate to be highly speculative and lacking in certainty. There was also no evidence as to the amount the plaintiff could earn. The estimates he had given of $1,200.00, $1,500.00 and $1,800.00 per month being salaries for a worker with a full ITE certificate were not substantiated by any evidence. In any event, they could not be safely relied on given that the plaintiff himself did not have a full ITE certificate.

[26] The above said, I took the view that it would still be possible to make an award, albeit a conservative one, for loss of future earnings. The plaintiff had shown that he had earned up to $2,300.00 a month with Alfred Dunhill during those periods when they could take him on. Even if Alfred Dunhill had not been able to hire the plaintiff when he completed National Service and he had not been able to obtain his full ITE certificate, he would nevertheless have been able to take on some form of part-time sales position, even if it might be less prestigious and for less remuneration. As such, I took the view that the plaintiff would be able to earn at least $700.00, per month, after deducting expenses.

[27] It would be appropriate at this juncture to deal with Mr Ramesh’s submission that there was insufficient mitigation on the part of plaintiff in that he ought to have should have sought a job. I disagreed strongly. Ms Goh had testified that she would not hire the plaintiff for a sales position as such persons needed to be presentable whereas the plaintiff was wheelchair-bound. The plaintiff himself had testified as to the difficulty of finding a job. I also did not find helpful Mr Ramesh’s citation of Mr Raja, the equipment supplier, as justification for his argument that the plaintiff was employable. Mr Raja had testified that he regarded himself as an exceptional case and that most paraplegics would find it difficult to go back out into the workforce. Indeed, Mr Raja himself did not hire any paraplegics in his office.

[28] In the premises, I awarded $134,400.00 under item (xiii).

[29] Item (xiv), hospitalisation expenses, was agreed between the parties at $25,811.31, as was item (xv), consultation bills, at $344.47.

[31] For item (xvii), receipts were submitted for psychiatric consultation which the plaintiff had had with Dr Ang. This was contested by Mr Ramesh who submitted that the plaintiff should only be awarded $90.00 for this item as he should have gone to the Institute of Mental Health instead of a private practitioner. I did not accept this objection. First, the issue of whether the plaintiff should have gone to the Institute of Mental Health emerged for the first time in submissions. Secondly, the referral to Dr Ang had been made by Dr Tow, such that it was not the plaintiff who had chosen to go to a private practitioner. Hence, I awarded the full sum claimed of $412.00.

[32] For item (xviii), there was some confusion between the parties as to the proper amount to be awarded. The plaintiff conceded in cross-examination that he had mistakenly added in a claim for $347.50 while Mr Ramesh appeared to have left out two further invoices for expenses incurred between the date the plaintiff’s affidavit of evidence in chief was filed and the date of the assessment. After reviewing the invoices submitted, I concluded that the proper amount to be awarded was $18,106.45.

[33] Item (xix) was agreed between the parties at $9,338.00.

[34] For item (xx), Mr Subir conceded that there had been a mistaken claim of an additional $300.00 for a mattress. Mr Ramesh, however, conceded for his part that the mattress would have had to be changed anyway and offered to pay half of its value. As such, I awarded $1,655.00 under this head.

[35] For item (xxi), the parties were in agreement as to the amount of salary paid out to the two maids that had been engaged since. As already stated in paragraph 13 above, I was of the view a discount of 15% should be applied to the maid’s salary (being $9,280.00 paid thus far for 33 months), the maid’s medical bill (being $50.00) and the agency fees (being $887.00), and that a nominal sum only should be awarded for the claims made in respect of the maid levy and the maid’s food and lodging. Consequently, I awarded $11,324.45 under item (xxi).

[37] Item (xxiii) was abandoned by the plaintiff in closing submissions.

[39] For item (xxv), the claim for lost earnings was contested by Mr Ramesh who argued that there were no grounds for the plaintiff to make his claim, be it on the basis of his previous employment with Alfred Dunhill or on his ITE qualifications. As stated in paragraphs 25 and 26 above, I agreed with Mr Ramesh’s submission for the most part, but nevertheless was of the view that there an award for lost earnings was justified. In the premises, I awarded the plaintiff $18,200.00 for lost earnings from the time he would have completed National Service and entered the workforce in July 2001 to the time of the assessment.

[41] In summary, the total award made to the plaintiff is as follows:

And interest on $96,000.68 at 3% from the date of accident to the date of trial, and on $202,000.00 at 6% from that date of service of the writ to the date of trial. Usual consequential orders.