AOD, a minor suing by the litigation representative v AOE

• Judge: Jean Chan Lay Koon AR
• Judgment Date: 21 November 2014
• Neutral Citation: [2014] SGHCR 21
• Citation: [2014] SGHCR 21
• Court: High Court (Singapore)
• Published date: 09 December 2014
• Docket Number: Suit No 1054 of 2012
• Plaintiff Counsel: Mr Michael Han (Hoh Law Corporation)
• Defendant Counsel: Mr Teo Weng Kie and Ms Shahira Anuar (Tan Kok Quan Partnership)
• Subject Matter: Damages,Assessment
• Hearing Date: 29 April 2014,13 December 2013,10 December 2013,11 December 2013,12 December 2013

Jean Chan Lay Koon AR: Background facts

This is an assessment of damages arising from a very unfortunate road traffic accident that occurred on 6 July 2011 along Jurong East Avenue 1. The plaintiff was crossing the road at a signalised pedestrian crossing when he was knocked down by the vehicle driven by the defendant. At the time of the accident, the plaintiff was only nine years of age. He sustained severe traumatic brain injury from the accident and he was conveyed to the National University of Singapore Hospital (“NUH”) in an unconscious state. At the point of admission, his Glasgow Coma Score was six.

On 13 December 2012, the plaintiff commenced Suit No 1054 of 2012 against the defendant. By consent, interlocutory judgment was entered on 31 July 2013 at 100% in the plaintiff’s favour with damages and interest and costs to be reserved to the Registrar.

The plaintiff was born on 4 March 2002. He was a primary three student at the time of the accident. At the time of the assessment, he was 12 years old. As a result of the accident, the plaintiff suffered from irreparable brain damage which caused him severe permanent disabilities. He became a quadriplegic and required constant care for all his activities of daily living. His mother had to quit her job as a receptionist in a law firm to take care of him at home on a full time basis. She is currently assisted by a domestic maid.

The various heads of claims sought by the plaintiff against the defendant are as follows: Pain and suffering and loss of amenities; Loss of future earnings of the plaintiff; Future medical expenses; Future expenses for daily consumables and other essentials; Loss of pre-trial and future earnings of the mother; Future cost of nursing care; Future transport expenses; Cost of Mental Capacity Act application; and Special damages.

I shall now deal with each of the heads of claims.

Pain and suffering and loss of amenities

It is trite law that the award for the head of damage called pain and suffering compensates victims for the pain they endure, the distress of knowing their disablement and the loss of enjoyment of life generally. The victim’s awareness of pain and distress is a major factor to be taken into account: Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174; [1979] 2 All ER 910.

Damages in respect of pain and suffering is awarded for both future pain and suffering as well as for what the plaintiff has already endured: Birkett v Hayes [1982] 1 WLR 816; TV Media Pte Ltd v De Cruz Andrea Heidi & Anor Appeal [2004] 3 SLR(R) 543 (“TV Media Pte Ltd”) at [166]. As far as future pain and suffering is concerned, the Court has to bear in mind these factors in awarding damages: (a) the risk of future deterioration or improvement in the plaintiff’s condition; (b) how long any pain and suffering is likely to be endured; (c) how long the plaintiff is likely to live; and (d) whether any future treatment is likely to be necessary and if so, the nature of such treatment and how it will affect the plaintiff.

It is also well-established that in deciding the proper quantum of damages, reference should be made to the precedents available. However, as observed by the Court in Nirumalan V Kanapathi Pillay v Teo Eng Chuan [2003] 3 SLR(R) 601, the application of precedents to a specific case is not a straightforward exercise. There are often only brief descriptions of the injuries and residual disabilities sustained by the plaintiffs in the cases and allowances have to be made for the ages of the awards and the injured persons.

While as a matter of practice the courts in Singapore have often lumped the claim for “pain and suffering” together with that for “loss of amenities”, they are not the same and neither is one subsumed under the other: Tan Kok Lam (next friend to Teng Eng) v Hong Choon Peng [2001] 1 SLR(R) 786 (“Tan Kok Lam”). The Court of Appeal in Tan Kok Lam held at [28]:

“We recognise and accept that for a claim for pain and suffering, unconsciousness on the part of the victim would negative that claim and thus render an award in respect of that claim inappropriate. A claim for pain necessarily suggests that the victim has consciousness, otherwise there is no question of him enduring any pain for which he should be compensated. However, the same cannot be said for loss of amenities. Whether or not there is loss of amenities is an objective fact. It cannot and should not depend on an appreciation of the loss by the victim… There is no greater injury or loss, as far as a living person was concerned, than to be turned into a cabbage.”

The above was subsequently clarified by the learned Judith Prakash J in Tan Juay Mui (by his next friend Chew Chee Kim) v Sher Kuan Hock and another (Liberty Insurance Pte Ltd, co-defendant; Liberty Insurance Pte Ltd and another, this parties) [2012] 3 SLR 496 (“Tan Juay Mui”) at [30] that what the Court of Appeal meant in Tan Kok Lam was that the greatest loss of amenities which a living person can suffer was to be put into a vegetative state and that such loss must be properly compensated, although the sufferer would not be entitled to a substantial award for pain and suffering due to his inability to feel the same.

Bearing the above principles in mind, I now turn to the facts of present case. A total of five medical experts were called to testify at the assessment hearing. The plaintiff called four medical experts as his witnesses: Associate Professor Ong Hian Tat (“Professor Ong”), Senior Consultant, Division of Paediatric Neurology, NUH; Dr David Low Chyi Yeu (“Dr David Low”), Consultant, Department of Neurological Service, KK Women’s and Children’s Hospital (“KKH”); Dr Goh Yu-Ching Keith (“Dr Keith Goh”), Consultant Neurosurgeon, International Neuro Associates Pte Ltd; Associate Professor Henry Tan Kun Kiaang (“Professor Henry Tan”), Head and Senior Consultant, Department of Otolaryngology, KKH.

The defendant called one medical expert, Dr Ho Kee Hang (“Dr Ho”), Consultant Neurosurgeon, K H Ho Neurosurgery, as his witness.

Based on the NUH medical report prepared by Professor Ong, preliminary CT brain scan and X-ray results showed that the plaintiff sustained the following main injuries from the accident: Several haemorrhagic contusions with acute subarachnoid haemorrhage with intraventricular involvements as well as small amount of subdural bleeding; Cerebral edema and early hydrocephalus; Multiple pulmonary contusions with small pneumothoraces seen on CT thorax; and Abrasions over the left forehead and temple;

The plaintiff underwent emergency insertion of a right external ventricular drain (“EVD”) on the same day of the accident. Neuroprotective measures were employed in the Paediatric Intensive Care Unit (“PICU”) to reduce cerebral edema and to maintain adequate cerebral perfusion pressure. This included the initiation and maintenance of thiopentone coma for 11 days. He also required inotropic support in the PICU, which was weaned off after discontinuation of the thiopentone coma. He was also started on valproic acid as his electroencephalogram (“EEG”) test showed severe diffuse encephalopathy with multiple epileptogenic foci.

The plaintiff also suffered from several complications during his stay at the PICU, which included blockage of EVD with resultant raised intracranial pressures, requiring two further revisions of EVD on 17 July 2011 and 22 July 2011. Eventually, a right ventriculo-peritoneal shunt was inserted on 3 August 2011. He also required ventilatory support in PICU and this was complicated by an episode of ventilator associated pneumonia on 10 July 2011. In view of prolonged ventilation, he underwent tracheotomy on 17 July 2011. He was successfully weaned off ventilatory support on 21 July 2011.

The plaintiff subsequently had spontaneous eye movement and occasional movements of his upper limbs. Inpatient neurological rehabilitation was later commenced. The plaintiff was unable to track visually and had bilateral palsy of the 6th cranial nerves. Visual and auditory tests conducted suggested that the plaintiff suffered from cortical blindness and right-sided hearing loss. He also developed significant hypertonia in all four limbs with contractures in his upper and lower limb joints. His head was slightly rotated to the left due to contraction of the left sternocleidomastoid muscle. He had Botox injection of the left wrist joint to lessen the spasticity and he was started on baclofen and clonazepam.

The plaintiff was transferred from PICU to the general ward on 19 August 2011 for continued rehabilitation. The plaintiff’s mother was given caregiver training in tracheostomy care, suctioning and change, nasogastric tube feeding and limb physiotherapy during the plaintiff’s stay in the general ward. After more than three months of in-patient treatment and rehabilitation in NUH, the plaintiff was discharged on 19 October 2011. At the time of discharge, the plaintiff was non-ambulant and required constant care and assistance in all aspects of his activities of daily living. Sometime in June 2012, the plaintiff was transferred to KKH for follow-up and treatment. He has since been under the care and treatment of KKH.

Clearly, the accident had adversely affected the plaintiff and the lives of his family members. Prior to the accident, the plaintiff was a healthy and active boy who loved to cycle, play football and video games. He was able to perform his daily activities without much problem or assistance. He is now a quadriplegic and is on nasogastric tube feeding. He previously required a tracheostomy tube for breathing. Between the first and second tranches of the assessment hearing, the plaintiff was successfully decannulated i.e. the tracheostomy tube was removed, in April 2014.

There was consensus between the plaintiff’s and the defendant’s medical experts that the...