Ramesh s/o Ayakanno (suing by the committee of the person and the estate, Ramiah Naragatha Vally) v Chua Gim Hock

[1] This case arose from a road accident on 9 March 2001 in which Ramesh s/o Ayakanno, a 26-year-old lorry driver suffered severe head injuries. As a result of the injuries, he has been declared to be mentally disabled and his mother Ramiah Naragatha Vally was appointed his committee. While his mother brought the action on his behalf, he was referred to in the assessment hearing as the plaintiff, and I shall refer to him as such.

[2] In October 2002, interlocutory judgment was entered in his favour with liability agreed at 95% and damages to be assessed.

[3] The assessment hearing came before an Assistant Registrar in 2007 who made the following awards:

$170,000-00

cost of hospitalization at $6,000-00 per year for 10 yrs

$60,000-00

cost of replacement of VP [ventriculo-peritoneal] shunt and insertion of tracheostomy and gastrostomy feeding tube

cost of medication at $105-00 per month for 10 years ($105 x 12 x 10)

$12,600-00

cost of medical consultation with doctors at $240-00 per year for 10 years

$2,400-00

$2,100-00

$3,000-00

$3,500-00

$38,800-00

$122,400-00

$14,400-00

$16,821-00

$177,300-00

__________

$208,521-00

$94,806-00

$137,400-00

$288,540-00

$520,746-00

$3,480-00

$50,112-00

$8,136-00

$81,360-00

$12,995-00

$2,633-50

$158,716-50

$1,142-00

$25,760-00

$26,902-00

$131,959-50

$2,675-10

$24,889-44

__________

$24,889-44

$28,600-00

__________

$1,395,409.54

[4] Both parties appealed against the Assistant Registrar’s awards. I shall deal with each head of appeal in turn.

[5] The plaintiff suffered the following injuries and disabilities:

- Severe head injuries to both sides of the brain, requiring bilateral craniectomies, shunting defects requiring VP shunting, refractory seizures and sepsis trachypnoea;

- Bilateral cord palsy requiring tracheostomy;

- Difficulty in swallowing requiring PEG tube insertion;

- Deranged liver functions and sepsis;

- Left iliac bone fracture;

- Disc protrusions at different levels of the dorsal spine causing cord compression, for which laminectomy was performed; and

- Contractures of the lower limb requiring tendo archilles lengthening.

and he is unable to move or talk and will require life-long medication for epileptic seizures.

[6] The Assistant Registrar in making the awards acted on the evidence of neurosurgeon Dr Keith Goh that the plaintiff is likely to succumb to the injuries in ten years. It was not clear whether the ten years were to run from the date of injury, or the date of the assessment, and the Assistant Registrar proceeded on the basis that it was ten years from the date of assessment, and neither party took issue with that.

[7] The plaintiff referred to several precedents in this appeal:-

[8] Of the cases cited, Hori, Toon and Chen are brain damage cases. Hori offers little guidance as the extent of the brain damage is not described. The injuries suffered in Toon and Chen, although not identical to those suffered by the plaintiff here (such injuries are rarely identical), are comparable in that they left the subjects in a semi-vegetative state, dependent on the assistance of others. While De Cruz and Harte are not brain injury awards, they are relevant as indicators of the levels of severity of injuries and disabilities for which awards of $150,000 and $120,000 have been made by the Court of Appeal. They are also recent awards of 2004, whereas the brain damage awards are older.

[9] Reviewing the cases, I am of the view that the $170,000 award is low, being only $5,000 higher than the 2001 award in Chen, and $10,000 higher than the 1993 award in Toon, and when compared with the awards of $120,000 and $150,000 for the testicular injury in Harte and liver injury in De Cruz respectively which are significantly less severe than the injuries suffered by the plaintiff. I will increase this award to $185,000. (All references to increases are stated on a 100% basis, and are to be adjusted to 95% to accord with the interlocutory judgment.)

[13] A maid was employed at $800 per month for 46 months to assist in looking after the plaintiff. Apparently, it was difficult to find a maid to look after the plaintiff. Several maids engaged before her had refused to stay on the job. The evidence was that it was agreed between the maid and the plaintiff’s mother that the maid was to attend to the plaintiff only, and was not to do household chores.

[14] The Assistant Registrar had deducted 30% under this head on the ground that it was unreasonable for the defendant to reimburse the plaintiff the full wages when the maid would be free to help out with household chores when the plaintiff was resting or sleeping.

[15] The deduction was not justified. As there was an agreement with the plaintiff’s mother that the maid was to be paid $800 for looking after the plaintiff only, no deduction should be made. There was no basis to suppose that the maid would have agreed to look after the plaintiff for $560 per month, or that she would agree to undertake household chores for no additional payment to the agreed $800. I will therefore increase this head of damages by $11,040.

[17] The plaintiff’s mother claimed that she had worked as a church caretaker. She was not working at the time of the plaintiff’s accident because the church was moving, but she had expected to resume work after the church moved. She also claimed that she had a part-time job, which she left after the plaintiff’s accident because she could not concentrate on her work. The Assistant Registrar had rejected the claim in relation to the full-time employment on the ground that there was no evidence from the church that she would have been re-employed after the removal. I see no reason to disturb this finding of fact.

[18] The Assistant Registrar however allowed half the claim for the part-time earnings on the basis that she could have continued to undertake some part-time work. I see no reason to depart from this award.

[19] The plaintiff’s sister claimed to have left her job between January 2002 and January 2004 to look after the plaintiff. The Assistant Registrar rejected this claim as she found that:

I agree with the Assistant Registrar’s conclusion.

[21] The plaintiff’s mother claimed that she will visit him daily when he is admitted into a nursing home, and a claim was made for the anticipated transport expenses. While she may intend to visit the plaintiff, it cannot be assumed that she will visit him daily for the rest of his life in view of her age and health (see [32]). In any case, such expenses are not necessarily recoverable even when they are incurred.

[24] These expenses arose because the plaintiff was sent to India for treatment for about two and a half months. The plaintiff’s mother and her uncle accompanied the plaintiff to India. The plaintiff claimed a total of $29,020 for the airfare, medical, accommodation and related expenses.

[25] The Assistant Registrar did not make any award for these expenses because the trip to India was made against the advice of all the doctors in Singapore (there was no evidence on any advice from doctors from India on the advantages or necessity of sending the plaintiff to India for treatment, and the doctors who treated the plaintiff in India did not give evidence at the assessment of damages). While the Assistant Registrar acknowledged that the plaintiff’s mother had believed that the trip was for the benefit of the plaintiff, she held that the plaintiff could only recover expenses that are reasonable in law. That decision is correct. An injured party is to be compensated for reasonable loss and expenses. Although the plaintiff or his mother had incurred these expenses in good faith, the expenses can only be recovered if they were reasonable for the treatment and rehabilitation of the plaintiff. Against the background that the trip was made against the advice of doctors treating the plaintiff in Singapore and in the absence of evidence from the Indian doctors, the trip cannot be considered to be reasonable and the expenses incurred cannot be recovered from the defendant.

[26] The plaintiff claimed $21,840 for massage expenses paid to a freelance visiting masseuse. The Assistant Registrar rejected this claim on two grounds. First, there was no evidence that such treatments were justified. Rehabilitation physician Dr Karen Chua who examined the plaintiff was of the view that there was minimal benefit in massages. Second, the Assistant Registrar found that the plaintiff had not proved the payments. The proof produced was a single document from the masseuse that she was paid $80 a session for her services with no other details, and without the person being produced as a witness. The Assistant Registrar was correct to reject this claim.

[28] The plaintiff eventually moved out of that house because it was termite-infested, and rented another property. He claimed $1,500 per month for the rental of this property.

[30] The claim for the rental of the second rented property is also unsustainable in the absence of evidence that it was necessary for the plaintiff to move to the rented property instead of staying on in the flat with necessary renovations done.

[32] Counsel for the defendant accepted that the mother’s ability to care for the plaintiff would be diminished by her advancing age and her own health problems (she is 54 years old and has high blood pressure, diabetes and heart problems). Nevertheless, he argued that instead of sending the plaintiff to a nursing home at that stage, the mother should employ an additional maid to help her to look after the plaintiff.

[33] That argument was made to minimise the damages payable, and on the assumption that the mother would be able to continue to take part in looking after the plaintiff. It is unreasonable to expect her to be involved in caring for the plaintiff on a daily basis for another ten years. I find that the Assistant Registrar’s decision to allow nursing home charges at the lowest quoted rate reasonable and correct.

[34] The Assistant Registrar had applied a multiplier of 14 years and three multiplicands:

[35] The defendant took issue with the multiplier and the multiplicands. On the former, the plaintiff had argued before the Assistant Registrar that the multiplier was excessive as the plaintiff was not expected to live beyond ten years, and therefore the multiplier should not exceed ten years.

[36] The defect in this argument was revealed by the Assistant Registrar’s observation that-

[37] This issue had been considered fully by the House of Lords in Pickett v British Rail Engineering Ltd [1980] AC 136. Lord Salmon put the matter simply and clearly at pages 151-152:

[38] The defendant made an alternative argument, “that the plaintiff should only be entitled to his future earnings to the extent of the amount which his dependents would receive in a dependency claim.” This argument, which conflates one claim (the plaintiff’s personal claim) with another distinct claim (his dependents’ dependency claim), was put forward without any authority or explanation. It is conceptually flawed and fallacious, and unsustainable. The multiplier of 14 years should be maintained.

[39] On the multiplicands, the defendant submitted that the plaintiff was earning $1,800 per month as a lorry driver when he was injured. The evidence of his employer was that the average income of a lorry driver is $2,500 inclusive of overtime earnings. However, if he continued with his employer he could be promoted to be a container truck driver or a supervisor and earn $2,500 to $3,000 per month.

[40] His employer had found him to be a good worker. He had real prospects of promotion because he already held a licence to drive container trucks, and his knowledge of English would enable him to take on supervisory duties.

[41] While a court should be slow to assume that a workman will progress to a better paying job with time, there is a sufficient basis in this case for the Assistant Registrar to do that and set the different multiplicands.

[42] The Assistant Registrar had awarded pre-trial loss of income from May 2001 to July 2007 using three multiplicands, i.e. $1,800 from May 2001 to January 2004, $2,000 from February 2004 to January 2007, and $2,300 from February 2007 to July 2007. The defendant argued that one multiplicand, $1,800, should be applied throughout.

[43] There is no reason in principle to restrict the multiplicand to the plaintiff’s earnings at the time of the accident. The evidence was that if he had continued working, his earnings would have increased. The Assistant Registrar had allowed for one increase from $1,800 to $2,000 in February 2004, three years after the plaintiff’s earnings were increased in February 2001 from $1,700 to $2,000. Such an increment after three years at the same level is not unreasonable. The next increment to $2,300 was projected at February 2007, another three years later.

[44] The plaintiff started his employment with his employers in August 2000 with a starting salary of $1,500. In November 2000, his salary was increased to $1,700, and in February 2001, it was increased to $1,800. The employer’s evidence was that a lorry driver could earn $2,500 per month inclusive of overtime payments. Against this background, the plaintiff’s earnings projected by the Assistant Registrar are reasonable in quantum and principle.