Asher David De Laure v Norhazlina Binte Md Yusop

• Jurisdiction: Singapore
• Judge: Kim Bum Soo
• Judgment Date: 20 April 2023
• Neutral Citation: [2023] SGDC 72
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2113 of 2021, Assessment of Damages 609 of 2021
• Hearing Date: 15 December 2022,26 July 2022,28 July 2022,20 May 2022,20 April 2023
• Citation: [2023] SGDC 72
• Year: 2023
• Plaintiff Counsel: Caleb Tan and Siow Yi Dong David (JusEquity Law Corporation) and Joshua Lim (instructed) (Kuru & Co)
• Defendant Counsel: Narayanan Ramasamy and Donald Alastair Spencer (Securus Legal LLC)
• Subject Matter: Damages,Assessment,Measure of damages,Personal injury cases,Rules in awarding,Loss of earning capacity,Young plaintiffs with no income prior to accident,Multiplier and multiplicand approach
• Published date: 27 April 2023

Deputy Registrar Kim Bum Soo:

What is the price of a dream? Consider a young man with a life ahead of him, and dreams to boot. He was (and still is) young. He has (perhaps complacently) never taken concrete steps to pursue those dreams – not at least, any that would produce credible documentation of the sort one would expect in a court of law. One horrific accident later, he finds himself with multiple fractures, massive scars, and one kidney short. His dreams are dashed. His life now is a series of compromises he makes with a new, dimmer reality. Undoubtedly, he has lost something intangible. But he cannot articulate that loss in the law’s language, much less provide evidence of the sort that the law may demand. How does the law provide a remedy, if at all? How would the loss of a dream be priced, if priced at all?

These would be the sort of questions implicated in an inquiry for a young plaintiff’s loss of earning capacity. The law in that regard, proved to be somewhat unclear – what is the legal test to be used when determining a young plaintiff’s loss of earning capacity? And beyond that, it was uncertain what was the correct quantification methodology to use in a claim for loss of earning capacity as well. Having had the opportunity to survey the authorities, I offer a modest rationalisation of the law and give my reasons below.

Facts

The Plaintiff, a polytechnic student at the time, was involved in a car accident on 28 September 2015.¹ There were multiple, horrific injuries requiring extensive surgical intervention. After some considerable difficulty, the Plaintiff managed to complete his polytechnic education (graduating a year later than his peers), and found employment thereafter. He found his first job out of school (which paid $3,500 per month)² too physically taxing due to his injuries³ and found another job instead.⁴ At the new job, he continues to experience difficulty handling some of the more physical aspects of his work due to his injuries. He is aged 26 years old at the time of assessment and is paid $2,400 per month at his present job.⁵

Executive Summary

The parties came to an agreement on all heads of claim save for those related to pain and suffering, and loss of earning capacity. In brief, I awarded damages as follows:

S/N	Item	Award
GENERAL DAMAGES
Pain and Suffering
1	Kidney Injuries (a) Loss of right kidney (b) Rhabdomyolysis (c) Large right retroperitoneal haematoma	$87,000
2	Liver lacerations	$20,000
3	Diaphragmatic injury on the right hemi-diaphragm and right vocal cord paresis	$12,500
4	Intestinal obstruction	See Item 12
5	Right pleural effusion	$5,000
6	Right undisplaced radial fracture and undisplaced ulnar styloid fracture	$17,500
7	Right undisplaced spiral fracture of the mid shaft of the tibia with puncture wound over the mid-shin	$15,000
8	Undisplaced fracture of the right traverse of the L1 vertebra	$12,000
9	Lacerations of the right forearm and left shin	$2,000
10	Post-traumatic stress disorder	$7,500
11	Scars	$17,000
12	Further adjustments made	$10,000
Future Medical Expenses6
13	Removal of implants	$14,000
14	Nephrology-related medical expenses	$5,865
15	Treatment for scars	$7,000
16	Psychological therapy	$300
Others
17	Loss of future earning capacity	$70,000
SUB-TOTAL (GENERAL DAMAGES):	$302,665
SPECIAL DAMAGES7
Medical Expenses8
18	Paid by Plaintiff	$5,354.02
19	Paid by American International Assurance	$9,310.48
Transport Expenses9
20	Past transport expenses	$1,500
21	Future transport expenses	$1,500
Loss of Income10
22	Related to the Plaintiff’s delay in graduation, after taking a leave of absence from school due to the accident	$34,817.60
Loss of Course Fee11
23	Course Fees incurred when the Plaintiff opted to take a leave of absence	$148
Property Damage12
24	Loss and damage to personal property	$858
SUB-TOTAL (SPECIAL DAMAGES):	$53,488.1
TOTAL DAMAGES (GENERAL & SPECIAL DAMGES):	$356,153.1

Preliminary housekeeping matters

I should make certain matters clear from the outset.

First, this matter was transferred to the State Courts pursuant to HC/SUM 4456/2021. A Memorandum of Agreement was filed by the parties on 24 September 2023. There, pursuant to ss 19(2) and 23 of the State Courts Act 1970, the parties agreed to grant jurisdiction to the District Court to hear this matter notwithstanding that the amount claimed in the action exceeds the limits of the District Court’s jurisdiction.

Second, on the occasions that I found authorities relevant to my decision/reasoning, I did not necessarily adopt the absolute figures in the awards given. For example, the Courts have frequently referred to the Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”) as a starting point when assessing the proper quantum of damages to be awarded. But the Guidelines are outdated, being more than a decade old. The same goes for certain case authorities, some dating back to the 1990s. The same injury sounding in $5,000 of damages in 1997 should not sound in $5,000 of damages today.

Accordingly, I was of the view that these authorities (and the awards of damages proposed therein) ought to be made more relevant by accounting for inflationary pressures: see Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR(R) 178 at [18] and Quek Yen Fei (by his litigation representative Pang Choy Chun v Yeo Chye Huat and another appeal [2017] 2 SLR 229 (“Quek Yen Fei (CA)”) at [110]. I could not find any authority that offered a principled methodology for doing this. As such, I will be using the Monetary Authority of Singapore’s online inflation calculator (“MAS Inflation Calculator”)¹³ in determining what would be the appropriate uplift to give where necessary. When proposed to the parties, no objections were raised.¹⁴

I turn then to the assessment proper.

Pain and Suffering The applicable legal principles

In cases where multiple injuries are suffered, the Court of Appeal in Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”) held that a two-stage analysis ought to be adopted (see Lua Bee Kiang at [12] – [18]): First, the component method should be applied. The component method entails quantifying the loss arising from each item or head of damage separately. This is to ensure that the loss arising from each distinct item or head of damage is properly accounted for: Lua Bee Kiang at [14]. Reference may be made to the Guidelines (since they set out indicative assessment ranges for most types of personal injuries) but these are, of course, no more than guidelines and a “good starting point” for negotiation: Lua Bee Kiang at [15]. Second, after the component sums have been added up, the global method is applied. All injuries sustained by the claimant are considered holistically to determine whether the aggregate award is reasonable and neither excessive nor inadequate: Lua Bee Kiang at [16]. This exercise is guided by at least two considerations. One is to avoid overcompensation, with the Court taking into account any “overlapping” injuries that either (i) together resulted in pain that would not have been differentially felt by the claimant or (ii) together gave rise to only a single disability: Lua Bee Kiang at [17]. The other is to ensure that like cases are treated alike, by considering and making reference to the appropriate precedents: Lua Bee Kiang at [18].

I find the present case to be an appropriate occasion to apply a small upward adjustment at the second stage (where the global method is applied), and set out my analysis in full below.

Kidney injuries

I assess and award $87,000 for the kidney injuries. This is a single award for both the retroperitoneal haematoma and the shattered kidney, as well as the medical complications (such as rhabdomyolysis) arising from the injuries.

Whether the retroperitoneal haematoma ought to be considered together with the other kidney-related injuries

There was little dispute between parties that the shattered right kidney and the rhabdomyolysis were to be considered together and a single award should be assessed for them.¹⁵ The real question is whether the “large right retroperitoneal haematoma”¹⁶ ought to be considered together with these injuries as well.¹⁷ I take the view that all these should be considered together, applying the principles stated in Seah Yit Chen v Singapore Bus Service (1978) Ltd and others [1990] 1 SLR(R) 490 at [5]: “[…] when the injuries sustained are related to the same part or function of the body, there should only be one award of damages, without any risk of overlapping”.

A retroperitoneal haematoma refers to a pool of (usually) clotted blood that forms in the retroperitoneum (ie behind the membrane that lines the abdominal wall, and which covers the organs in the abdomen). The retroperitoneal space houses organs like the kidney and the ureter, and it is unsurprising to see such devastating trauma to the kidney be accompanied by injuries to the areas surrounding the kidney. Indeed, Dr Raj Kumar Menon (“Dr Menon”)’s report referred to the haematoma in the same breath as the kidney injuries, describing the retroperitoneal haematoma as being part of the “severe injuries to his liver and right kidney and active bleeding and clot formation”.¹⁸ So understood, the haematoma is intrinsically tied to the other kidney-related injuries. It relates to the same part of the body and...