Ong Derrick v Sim Chong Nam

Choo Han Teck J:

[1] The plaintiff obtained interlocutory judgment against the defendant for damages to be assessed. The defendant had admitted liability for causing a road accident on 5 February 2006 at the junction of Ang Mo Kio Street 22. The plaintiff was the driver of a motorcar that was stationary at the material time. A car driven by the defendant collided into the plaintiff’s car from the rear.

[2] The defendant made an Offer to Settle (“OTS”) under O 22A of the Rules of Court (Cap 322, R 5, Rev Ed 2006). The defendant’s offer was in the sum of $23,078.26. The plaintiff was awarded $8,000 by the Deputy Registrar for his whiplash injury. On appeal, the District Judge (“DJ”) increased the amount to $10,000. The plaintiff was asking for $20,000. This was the main item in dispute. The plaintiff appealed against the DJ’s order on the ground that the damages for whiplash were inadequate.

[3] Mr Ramasamy Chettiar (“Mr Chettiar”), counsel for the plaintiff submitted that the plaintiff’s wife who was with him as a passenger at the time of the accident suffered a similar injury but her claim was settled for a total sum of $37,000, including interest and interim payment. Mr Ramasamy thus argued that the plaintiff ought to receive more because his work profile was higher and he earned more than his wife. The plaintiff was not satisfied with the fact that the OTS made to him was lower than that made to his wife. He rejected the OTS and proceeded to assessment of damages.

[4] The plaintiff’s initial complaint when admitted to the Tan Tock Seng Hospital on 10 February 2006 was that he experienced pain over his right wrist extending to his right index finger and which had worsened over the past five days. Secondly, he had lower back pain worsening over the past five days. He also had neck pain that gave him trouble sleeping. A magnetic scan was performed on 17 February 2006. The radiologist report stated as follows –

[5] The plaintiff consulted a private medical doctor, Dr Li Yung Hwa (“Dr Li”) on 19 March 2010 for the purposes of his claim. Dr Li noted that the plaintiff was treated “conservatively with regular follow up at Tan Tock Seng Hospital and had physiotherapy. He continued to have neck pain and stiffness and the symptoms had some impact on his activities of daily living”. Dr Li was of the view that the plaintiff “is likely to have chronic neck pain and his residual pain is likely to be permanent”.

[6] On 8 September 2010, Dr Li wrote to the plaintiff’s lawyers and wrote as follows:

Dr Li saw the plaintiff again on 18 November 2010 with the view to preparing a medical report for the purposes of the assessment. That report is found at page 12 of the Bundle of Medical Reports.

[7] The plaintiff was examined by another doctor, Dr Peter Lee (“Dr Lee”) on 21 July 2010. This was at the defendant’s request. Dr Lee’s report dated 29 July 2010 stated as follows:

[8] At the assessment, Dr Yeo Tseng Tsai (“Dr Yeo”) gave evidence that he examined the plaintiff ten days after the accident. Dr Yeo and Dr Li differed only on the point as to whether the disc degeneration was normal or spontaneous. Another doctor, Dr Yu Chun Sing (“Dr Yu”) was asked to comment (see NE page 167). He placed emphasis on the minimal disc degeneration as reported. He testified that in medical terms, it meant that it was “hardly present” and he did not appear to think it was significant. Dr Yu was the only medical expert who, according to counsel for the defendant, Mrs Susila Ganesan (“Mrs Ganesan”), had the benefit of perusing the case notes of the plaintiff’s injuries. His own notes reflected that he found that the plaintiff had “freedom of movement” of his neck when examined in February 2006. He was also of the view that the plaintiff was not severely disabled by the whiplash.

[9] The Deputy Registrar considered the medical evidence and referred to the “Guidelines for Assessment of General Damages in Personal Injury” with specific reference to neck injuries and concluded that an award of $8,000 was fair. The general guideline was between $7,000 and $8,000. On appeal, the District Judge increased the award to $10,000. The DJ based his award on the finding that the whiplash was a “grade 2” injury. The DJ might have erred on the side of sympathy and classified the injury as falling within the category of minor “strains, sprains, disc prolapse, soft tissue injuries with full recovery within about five years” and thus fell within the range of $2,000 to $10,000.

[10] I am of the view that in no case would the plaintiff be justified in claiming more than $10,000 for his whiplash injury given the evidence. Two MRI scans were carried out. One shortly after the accident and the other about four years later. Neither showed any damage to the spinal discs at C3/4 other than a deterioration of the discs that the court below accepted as normal degenerative deterioration. The court below asked Dr Yu to “give an answer and explanation in a helpful manner to assist the court” after disallowing a question by Mr Ramasamy. Dr Yu then answered, “It means that the MRI is practically normal.” The plaintiff was not involved in work that required lifting heavy weights but his job, as Mr Ramasamy submitted, required long hours at the computer. That activity is known to hasten disc degeneration and prolapse. I agree with the court below that the whiplash suffered by the plaintiff was not sufficiently major as to warrant damages beyond $10,000. The plaintiff’s appeal was therefore dismissed.

[12] The court in Singapore Airlines Ltd was of the view that the very small difference between the damages assessed ordered and the OTS amount was sufficient in that case to warrant intervention. That was within the court’s discretion although it is not to be taken as a rule. In the present case before me, there is another factor that is relevant. Here, the plaintiff’s wife who was involved in the same accident and suffered the same injury was offered $37,000 more. The defendant did not offer any explanation why the offer to the plaintiff was lower. It was not unreasonable for the plaintiff in the circumstances to have rejected the offer. From his point of view, the offer to him was not a reasonable offer. Mrs Ganesan was only able to say that it was the defendant’s prerogative to make such offers.