Akhinur Nashu Kazi v Chong Siak Hong (trading as Hong Hwa Marine Services)

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 08 June 2009
• Neutral Citation: [2009] SGHC 138
• Plaintiff Counsel: K Ravi (K Ravi Law Corporation)
• Published date: 18 June 2009
• Court: High Court (Singapore)
• Defendant Counsel: Pak Waltan (Rajah & Tann LLP)
• Subject Matter: Damages,Assessment

8 June 2009 Judgment reserved.

Judith Prakash J:

1 This is an appeal from an assessment of damages conducted by Lim Jian Yi, the Assistant Registrar (“the AR”). The plaintiff, who had sustained a fall in the course of his employment, had claimed general damages of $399,000 and additional special damages from his employer, the defendant. After nine days of hearing, the AR found the plaintiff’s claims to be substantially lacking in merit and awarded him only $2,000 for contusions. Costs were awarded to the defendant. The plaintiff has appealed on all counts.

Background

2 The plaintiff is from Bangladesh. He was born, according to his passport, on 12 June 1970 but in court he said it was not his true birth date and that he was a few years younger. He is not well educated having had about three years of primary education and, prior to coming to Singapore to work in the late 1990s, had been employed in Bangladesh as a farmer.

3 The accident that gave rise to the present proceedings occurred on 27 September 2003. The plaintiff was then employed by the defendant as a construction worker. At the time of the accident, the plaintiff was doing some painting work at a worksite in Jalan Punai, Singapore where some construction work was being carried out. The plaintiff fell from a scaffold and landed flat on his back on the ground. He stated that he felt pain in his back, head, chest, abdomen, hip and elbow.

4 The plaintiff was then taken by ambulance to Changi General Hospital (“CGH”). According to the ambulance report, a friend of the plaintiff told the crew that he had fallen from a height of 1.5m. The crew themselves noted that the plaintiff was conscious and alert. He was hyperventilating with carpal pedal spasms noted and complaining of pain over his whole body. According to the hospital notes, the plaintiff claimed he had pain all over his body and refused to localise the site of the pain. Apparently, there was no loss of consciousness. X-rays of the head, chest, pelvis, left hip and elbow were done and were found to be normal. On examination by the attending doctor, the plaintiff was found to have sustained contusions of his left hip, left elbow and his back. He was fully conscious. There was no scalp injury and chest compression was not painful. Compression of the pelvic bone was claimed to be painful and there was pain when the left hip was moved. The neck movement was good and no bruises were seen. The plaintiff was given a painkiller by injection and he was then able to get out of bed and walk a distance of five metres independently. He was sent home the same night with pain medication and given three days’ medical leave.

5 On 1 October 2003, the plaintiff went back to CGH complaining of persistent headache, abdominal pain and left flank pain. Examination of the abdomen and conscious state were normal. He was warded in the hospital for investigation and discharged on 3 October 2003. According to the hospital’s “Inpatient Discharge Summary”, a CT scan of his head showed that there were no abnormalities. He was seen by the orthopaedic department for possible neck and loin injury arising from the neck and loin contusions. The summary stated that subsequently the plaintiff’s headache resolved and he was able to ambulate. The summary also stated that the principal diagnosis was “stable head injury” while the secondary diagnosis was “contusion, abdomen” and “contusion, chest wall”. Under the heading “Suggested Treatment” there was a notation that the plaintiff was to be referred to a neurosurgeon, Dr Charles Seah, for examination. On discharge, the plaintiff was given a further ten days of sick leave and two types of medication, Panadeine (for pain) and Stemetil (for nausea). The plaintiff returned to the hospital that same night complaining of weakness in both lower legs. On examination, his legs were found to be normal and he was not admitted again.

6 Ten days later, on 11 October 2003, the plaintiff reported to CGH again. According to the hospital notes, he complained of having had a headache for ten days, pain over the whole body and vomiting. The doctor in charge, one Dr Y M Ho, noted that the plaintiff had exaggerated grimacing with any touch. Dr Ho decided to admit him to the surgery department for observation again. He remained in hospital until 14 October 2003. The inpatient discharge summary this time made a principal diagnosis of post concussion syndrome. There was no secondary diagnosis. The CT scan was repeated and showed no abnormality. Under suggested treatment, there was a notation that the plaintiff should be referred to the neurosurgical department for post concussion syndrome.

7 The plaintiff went back to CGH on 13 November 2003. This time he was seen to be confused, agitated and disoriented. He was banging his head and eating the surgical mask. He was accompanied by his friends and brother and was admitted because he was so disoriented. The hospital wanted to carry out a psychiatric examination of the plaintiff but was not able to do so because his brother asked for him to be discharged before treatment was completed. The ostensible reason was lack of funds. Four days later, however, the plaintiff went back to the hospital complaining that he was unable to work and wanted medical leave. He complained of change of behaviour on and off and said he was easily angered. Examination showed him to be alert and rational and normal neurologically except for some pain over the back of the neck. The examining doctor extended his medical leave up to 26 November 2003.

8 The plaintiff thereafter continued to receive outpatient treatment at CGH. He was referred to the psychiatric outpatient clinic and seen there from 12 January 2004 onwards for cognitive changes following his fall. The psychiatric department made a diagnosis of Organic Brain Syndrome (“OBS”). According to psychological assessment done on 24 March 2004, there was impairment in his verbal and visuo-spatial functioning and he was functioning in the mildly retarded IQ range. Antidepressant medication was prescribed but it did not lead to an improvement in his mental state or level of functioning and he appeared, to that department, to be permanently incapacitated by his condition. Apart from the 38 days of leave that he had received post hospitalisation, doctors at the psychiatric outpatient clinic gave him a further 568 days of leave. His last medical certificate was for the period between 25 February 2005 and 27 May 2005.

9 The plaintiff’s affidavit of evidence-in-chief was made in March 2008. He described his condition as follows:

I still experience pain, giddiness and vomiting, persistent headaches, blurred vision, nausea, spinal, hip and back pain, abdominal discomfort and various other somatic disabilities. As a result of the said accident, I also suffer from erectile dysfunction and am unable to have sexual intercourse. I also have some difficulty concentrating and remembering things. I also feel weak and tired most of the time and suffer from depression caused by the injuries sustained by me. But I am not of unsound mind and I am capable of managing myself with some difficulty.

The plaintiff’s claim

10 Before the AR, the plaintiff claimed general damages totalling $399,000 and special damages of $50,000 and US$55,000. On appeal, whilst the heads of claim remained the same, the figures changed somewhat. Before me, the plaintiff quantified his damages as follows:

(A)	For Pain & Suffering and Loss of Amenities
(1)	(a) Closed Head Concussional Injury	)	$ 50,000
	(b) Organic Brain Syndrome	)
	(c) Post Concussion Syndrome	)
	(d) Diffuse Axonal Brain Injury	)
	(e) Cognitive Deficits & Memory Impairment	)	$ 25,000
	(f) Depression	)	$ 10,000
	Total of (a) to (f) $85,000 but in order to allow for overlap; total claim reduced to:		$ 60,000
(2)	Erectile dysfunction	)	$ 50,000
(3)	Back injury and contusion of elbow and hip	)	$ 5,000
(B)	Loss of Earnings
(4)	Loss of Future Earnings in Singapore (for eight years at $800; a month)		$ 76,800
	Loss of future earnings in Bangladesh (for eight years at $200; per month)		$ 19,200
(5)	Loss of Earning Capacity		$100,000
	Total		$284,600
(C)	Special Damages
	(a) Medical Expenses		$ 1,982.15
	(b) Cost of Future Medical Expenses		$ 6,000
	(c) Loss of Pre-trial earnings – 63 months at $800 per month		$50,400
	(d) Transport expenses		$ 500
	Total		$57,482.15

The defendant’s position

11 The defendant’s position was that on the totality of the evidence, the plaintiff had failed to prove on a balance of probabilities that he had sustained the injuries as alleged. It had been shown that, more likely than not, the plaintiff had feigned the myriad symptoms complained of. His evidence lacked consistency and his demeanour and behaviour revealed deliberate acts of overt embellishment and exaggeration purposefully displayed in order to establish serious head and/or bodily injury. Additionally, the plaintiff’s medical experts had not been able to support the plaintiff’s claims that he sustained severe and bodily injuries, whereas the defendant’s medical experts had shown that the plaintiff was exaggerating his condition and may have been malingering.

The evidence

12 The plaintiff relied principally on his own evidence and that of five medical witnesses. The defendant testified himself and also called two doctors, two friends of the plaintiff and a private investigator.

Medical evidence adduced by the plaintiff

The CGH doctors

13 The plaintiff called three doctors from CGH in connection with his visits to CGH and his treatment. These were Dr Peh Lai Huat, a psychiatrist and currently senior consultant, Department of Psychological Medicine; Dr Tan Poh Seng, Registrar Division of Gastroenterology; and Dr Goh Siang Hiong,...