AOD (a minor suing by his litigation representative) v AOE

• Court: High Court (Singapore)
• Judge: George Wei J
• Judgment Date: 20 October 2015
• Neutral Citation: [2015] SGHC 272
• Citation: [2015] SGHC 272
• Defendant Counsel: Teo Weng Kie and Shahira Anuar (Tan Kok Quan Partnership)
• Published date: 28 October 2015
• Plaintiff Counsel: Michael Han Hean Juan (Hoh Law Corporation)
• Hearing Date: 13 April 2015,07 September 2015,27 February 2015
• Docket Number: Suit No 1054 of 2012 (Registrar’s Appeals Nos 377 and 383 of 2014)
• Date: 20 October 2015
• Subject Matter: Damages,measure of damages,lost years claim,assessment,provisional damages,personal injuries cases

George Wei J:

On 6 July 2011, a 9-year old boy, the plaintiff in this case (hereinafter, “the Plaintiff”), was knocked down by a vehicle driven by the defendant (hereinafter, “the Defendant”) along Jurong East Avenue 1. He sustained severe, permanent injuries from the accident. He is now a quadriplegic who requires constant care. His life expectancy has been greatly reduced; doctors estimate that he would live only to the age of 38.

On 13 December 2012, the Plaintiff (via his litigation representative) commenced a suit against the Defendant. By consent, interlocutory judgment was entered against the Defendant on 31 July 2013. It ordered that judgment “be entered in this action in favour of the Plaintiff for 100% against the Defendant with damages and interest and costs to be reserved to the Registrar”.

The matter went before the learned assistant registrar (“the AR”) for an assessment of damages. The AR delivered her judgment on 21 November 2014, awarding the Plaintiff a global sum of $1,252,825.86 with interest, and making an award for provisional damages (see [2014] SGHCR 21, hereinafter referred to as “the AR’s Judgment”). Dissatisfied with the AR’s decision, the parties both filed appeals and the matter came before me.

The AR’s order and the parties’ appeals

I now summarise the AR’s order, as well as the parties’ appeals.

AR’s order

For special damages, the AR awarded the Plaintiff the following: Pre-trial medical expenses agreed at $35,201.12; Pre-trial transport expenses agreed at $6,500; Mother’s pre-trial loss of earnings and employer’s Central Provident Fund (“CPF”) contribution at $43,882.80; and Pre-trial domestic help expenses agreed at $11,994.85. Total: $97,578.77

For general damages, the AR awarded the Plaintiff the following: pain and suffering assessed at $190,000; Plaintiff’s loss of future earnings assessed at $233,878.14; future medical expenses assessed at $317,380.75; future expenses for daily consumables and essentials assessed at $46,800; mother’s loss of future earnings and employer’s CPF contributions assessed at $235,248; cost of future nursing care assessed at $106,420.20; future transport expenses assessed at $23,520; and future cost of Mental Capacity Act application assessed at $2,000. Total: $1,155,247.09 Grand total: $97,578.77 + $1,155,247.09 = $1,252,825.86

For interest, the AR ordered that interest is to be applied at half of 5.33% on special damages from the date of service of writ to the date of judgment, and interest at 5.33% on general damages for pain and suffering from the date of service of writ to the date of judgment.

The AR also ordered that the Plaintiff may apply for future damages to be assessed if he requires a permanent tracheostomy as a result of contracting pneumonia within three years of her order (“Provisional Damages Order”).

Costs of the assessment of damages hearing was fixed at $85,000, plus Goods and Services Tax (“GST”) and disbursements to be agreed or taxed.

Plaintiff’s appeal

In Registrar’s Appeal No 377 of 2014, the Plaintiff appeals against part of the AR’s award.

In relation to special damages, the Plaintiff appeals against the AR’s award of S$43,882.80 for the mother’s pre-trial loss of earnings and employer’s CPF contribution.

In relation to general damages, the Plaintiff appeals against the following awards: the Plaintiff’s loss of future earnings assessed at $233,878.14; future medical expenses assessed at $317,380.75; future expenses for daily consumables and essentials assessed at $46,800; mother’s loss of future earnings and employer’s CPF contributions assessed at $235,248; cost of future nursing care assessed at $106,420.20; future transport expenses assessed at $23,520; and future cost of Mental Capacity Act application assessed at $2,000.

The Plaintiff also appeals against the AR’s award of interest. However, no submissions were made on this before me. I therefore find no basis to vary the AR’s award of interest.

Defendant’s appeal

In Registrar’s Appeal No 383 of 2014, the Defendant appeals against the following awards and orders: the Plaintiff’s loss of future earnings assessed at $233,878.14; mother’s loss of future earnings and employer’s CPF contributions assessed at $235,248; the Provisional Damages Order; and costs fixed at $85,000.00 plus GST.

The issues

In this judgment, I propose to deal with the issues raised on appeal in the following order: mother’s pre-trial loss of earnings and employer’s CPF contribution at $43,882.80; future medical expenses assessed at $317,380.75; cost of future nursing care assessed at $106,420.20; mother’s loss of future earnings and employer’s CPF contributions assessed at $235,248; future transport expenses assessed at $23,520; future expenses for daily consumables and essentials assessed at $46,800; Plaintiff’s loss of future earnings assessed at $233,878.14; the Provisional Damages Order; future cost of Mental Capacity Act application assessed at $2,000; and costs fixed at $85,000 plus GST and excluding disbursements.

Dealing with the issues in this sequence generally enables me to dispose of the issues which are relatively less complex and more factual in nature, before discussing the heads of appeal that involve more complex questions of law.

For the sake of clarity, I note that there is no appeal on the following awards made by the AR: pre-trial medical expenses agreed at $35,201.12; pre-trial transport expenses agreed at $6,500; pre-trial domestic help expenses agreed at $11,994.85; and damages for pain and suffering assessed at $190,000.

High Court’s role in a Registrar’s Appeal on assessment of damages

As a preliminary, it is important to clarify the role of a High Court judge who hears an appeal from an assistant registrar on assessment of damages under O 56 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).

The authorities establish that the judge in chambers hears the matter not as an appeal in the true sense of the word, but deals with the Registrar’s Appeal on assessment of damages as if the matter came before him for the first time: Chang Ah Lek v Lim Ah Koon [1998] 3 SLR(R) 551 at [20], affirmed in Tan Boon Heng v Lau Pang Cheng David [2013] 4 SLR 718 (“Tan Boon Heng”) at [16].

Indeed, the Court of Appeal helpfully explained in Tan Boon Heng at [16] that in assessing damages, the assistant registrar is “exercising powers and jurisdiction devolved to him from those vested in a High Court judge”. Therefore, “a judge in chambers who hears a Registrar’s Appeal is not exercising an appellate jurisdiction - for that term would only be accurate and applicable where the appealed decision emanates from an inferior court or tribunal - but confirmatory jurisdiction instead”.

There are practical implications to the fact that the judge in chambers exercises a confirmatory, rather than appellate, jurisdiction. For one, the judge is not confined to interfering with the assistant registrar’s exercise of discretion only if damages were assessed on wrong principles of law or misapprehensions of fact: Tan Boon Heng at [18]. Instead, the judge is entitled to exercise his discretion afresh, while giving due weight to the assistant registrar’s decision: Tan Boon Heng at [21]. Second, the judge also has a wider discretion to admit new evidence and even recall witnesses: Lassiter Ann Masters v To Keng Lam (alias Toh Jeanette) [2004] 2 SLR(R) 392 at [10] and [22]. Indeed, both parties helpfully brought the case Swiss Butchery Pte Ltd v Huber Ernst and others and another suit [2013] 4 SLR 381 to this court’s attention, where the High Court did recall witnesses in a Registrar’s Appeal on assessment of damages.

Whilst the judge can exercise his discretion afresh, unfettered by the assistant registrar’s decision, it must be borne in mind that the assistant registrar still has the advantage of having heard the oral evidence of the witnesses first hand. As the Court of Appeal noted in Tan Boon Heng at [24], a distinction must be drawn between findings of fact based solely on affidavit and documentary evidence, and findings based partly or wholly on oral evidence. The Court of Appeal had made the following observations: Where the assistant registrar’s findings of fact are based on oral evidence, the standard of review “should be the same as that applied to a trial judge’s factual findings on appeal to the Court of Appeal - so that these findings may be overturned only if they are plainly wrong or against the weight of the evidence”: Tan Boon Heng at [43]. Where the assistant registrar’s findings of fact are based on affidavit and documentary evidence, the judge is in no less advantageous a position, and hence, may make his own findings afresh, unfettered by the assistant registrar’s judgment: Tan Boon Heng at [44].

It is with the above principles in mind, that I consider the present appeals before me.

Mother’s pre-trial loss of earnings

The AR awarded the Plaintiff damages of $43,882.80 for his mother’s pre-trial loss of earnings. I briefly set out her reasoning, which can be found at [102]–[103] of the AR’s Judgment: 102 Prior to the accident, the mother was working as a receptionist in a law firm … and was drawing a monthly salary of $1,300, excluding employer’s CPF contribution of $208. As a result of the accident, she had to quit her job to take care of the plaintiff full-time. … 103 In respect of the mother’s pre-trial loss of earnings, I allowed the claim at $1,508 (including employer’s CPF) per month for a period of 29 months and 3 days, being the time from the date of the accident to the commencement of the assessment hearing on 10 December 2013. I arrived at the sum of $43,882.80.

The Plaintiff appeals against the multiplier of 29 months and three days used by the AR. He submits that “the...