Au Yeong Wing Loong v Chew Hai Ban and Another

• Judge: K S Rajah JC
• Judgment Date: 24 June 1993
• Neutral Citation: [1993] SGHC 139
• Citation: [1993] SGHC 139
• Defendant Counsel: Yap Tyou Min (Battenberg & Talma)
• Published date: 19 September 2003
• Plaintiff Counsel: Jeanny Ng (Jeanny Ng)
• Date: 24 June 1993
• Docket Number: Suit No 1752 of 1991
• Court: High Court (Singapore)
• Subject Matter: Damages for pain and suffering to take this into account for fair compensation,Term of art,Method of assessing,Compensation for nursing care to be awarded for duration of life that has been shortened,Loss of life expectancy,Factors to consider,Loss of marriage prospects,Whether multiplier should be for plaintiff's working life before injuries or only for period of life shortened by injuries,Multiplier should reflect variables of the future,Nursing care,Meaning of,Personal injuries cases,Whether plaintiff can recover full wages and CPF contributions paid by employers,Whether agreed sum for damages is fair and adequate compensation and whether includes claims under separate heads,Plaintiff's life span reduced by 10-15 years,Loss of amenities,Measure of damages,Pain and suffering,Loss of future earnings,Injured person's awareness of the reduced expectation of life,Wages paid due to contractual right,Pre-trial loss of earnings calculated as at the date of trial,Distinction between pain and suffering caused by injuries and pain and suffering caused by awareness that life expectancy is reduced,Multiplier,Permanent loss of prospects of marriage and normal sexual life,Evaluated by reference to prior awards and to circumstances of the particular plaintiff,Damages,Plaintiff not legally obligated to refund employers,Damages for pain and suffering should take into account suffering caused by that awareness,Pre-trial loss of earnings

Cur Adv Vult

The plaintiff was an employee of Kwong Tuck Loong Pte Ltd, a family concern, earning $1,900 pm at the time of the accident. The first defendant was the servant and agent of the second defendant. The second defendant, Chua Beng Hong (Feme Sole) was trading as Kian Heng Hiring Equipments Co.

The plaintiff sustained injuries when the first defendant negligently drove motor trailer XA 5080 X and collided into the rear of the car EP 8247 J on 23 August 1990.

The plaintiff has been severely disabled due to motor paralysis in all four limbs with only partial but functionally inadequate recovery in the upper limbs. His health will be affected by urinary tract infectious, bedsores or chest infections and he is prone to urinary and kidney infections. There is a strong possibility of further deterioration. His medical condition is unlikely to improve and he has no future earning capacity.

The plaintiff`s claim is for damages for personal injuries, consequential loss and expenses suffered by him, caused by the negligence of the first defendant.

At the beginning of the trial, the parties agreed on the following:

(1) the defendants to absorb 70% of the plaintiff`s claim;

(2) damages for pain and suffering of $145,000;

(3) costs and expenses incurred in respect of:

(i) payments to Toa Payoh Hospital (item i) - $6,870

(ii) payments to Tan Tock Seng Hospital (item ii) - $18,198.60

(iii) payments to National University Hospital (item iii) - $4,399.20

(iv) purchase from Rehab Mart (item iv) - $2,235

(v) purchase from Esco Technologies (Asia) Pte Ltd (item v) - $645

(vi) purchase of Chinese medicine (item vi) - $200

(vii) future medical costs of hospitals/consultations (item vii)- $25,000

(viii) pre-trial and post-trial transport expenses (item viii) - $4,000

(ix) loss of motorcar EP 8247 J (item ix) -$2,676

(x) payment to BMEC Technology Pte Ltd (item x) - $3,681

(xi) payment to Great Dream Enterprise Vicjoy Ultra Long Wave Trading (item xi) - $6,520

(xii) Payment to Lozon (S) Ptd Ltd (item xvi) - $4,500

Total: $78,924.80

In the course of the hearing, the parties agreed on costs for future purchase of medical aids, toiletries and their maintenance at $32,000. The court was left with the task of assessing the amounts due to the plaintiff for the following:

(1) Loss of expectation of life

(2) Loss of marriage prospects

(3) Pre-trial loss of earnings

(4) Loss of future earnings

(5) Pre-trial and post-trial nursing care

Loss of expectation of life

The plaintiff`s claim is for $7,000 under this head. The defendant`s case is that s 8(1) of the Civil Law Act (Cap 43) provides for damages for `pain and suffering` arising from the personal injuries. Pain and suffering for loss of expectation of loss of life must be deemed to be included in the agreed sum of $145,000 agreed between the parties for pain and suffering. The damages for loss of life expectation must be regarded as having merged into the sum of $145,000 otherwise there would be overlapping.

Mr Yap said, it would be wrong, when considering damages, to take the stand `The defendants are wrongdoers. So make them pay up in full. They do not deserve any consideration` as that would, as Lord Denning put it in Lim Poh Choo v Camden and Islington Area Health Authority, be a tendentious way of putting the case, because accidents sometimes happen because of pardonable errors, which can befall any one of us and plaintiffs are not entitled to be fully compensated for all the loss and detriment suffered, but only to a fair compensation.

`Fair compensation`, in the circumstances of this case he said, must have regard to the fact that the insurers who have to foot the bill are not the wrongdoers and the value of the evidence must be seen in the context of a bargain in an annuity office.

Mr Yap`s sympathies for the plaintiff`s plight and the reasonable and very correct stand he took in the examination of witnesses makes his argument a very attractive one and it is necessary to examine his submission.

Pain and suffering

The term `pain and suffering` is used as a term of art, without any clear distinction between the two words, but the compensation is paid for the physical pain, emotional and intellectual suffering arising from the injury. Shock is included as are anxiety and fear. The starting point for evaluating pain and suffering must be the injury itself, which includes fright at the time of the injury and fright reaction (see Thomson v Royal Mail Lines ). Precaution however, must be taken against the overlapping of elements of damages.

Section 8 of the Civil Law Act (Cap 43), abolishes loss of expectation of life as a separate head of non-pecuniary loss in an action for damages for personal injuries, in claims by the estate, and not for claims by a living plaintiff. The estate should not receive compensation meant for a living plaintiff. Section 8(1) (Cap 43) accordingly provides that in assessing damages in respect of pain and suffering caused by the injuries, account shall be taken of any suffering caused or likely to be caused to the person injured by awareness that his expectation of life has been reduced. The distinction between pain and suffering arising from injuries and suffering that arises from an awareness that expectation of life has been reduced, as in this case by 10 to 15 years, may be difficult to see, but it can be distinguished.

Dr Robert Don`s evidence was that the plaintiff will have his life span reduced by 10 to 15 years. The plaintiff, being aware that his life has been so reduced must be compensated for the suffering arising from the awareness of this fact. The fact that the insurance company is not a wrongdoer is no answer because insurers would have taken it into account.

In the case of Tan Teck Chye v Chia Mee Sieng, the plaintiff was left with paralysis below his waist and a neurogenic bladder. His paraplegia was likely to remain permanent. He was 22 years old at the time of the accident. The court awarded $6,500 for loss of expectation of life.

In Cheng Chay Choo v Wong Meng Tuck & Anor, the registrar took into account loss of expectation of life and awarded a sum of $120,000 to a woman who was unmarried, and a paraplegia. On appeal, the court said:

... In assessing damages, the court must take into account any suffering caused or likely to be caused to a person by awareness, that is his/her expectation of life has been so reduced. ...

The sum of $145,000 for pain and suffering for the injury suffered by the plaintiff is by no means out of tune with the damages awarded for the injuries suffered by the plaintiff. If the sum of $145,000 is to include the award for loss of expectation of life, it should have been spelt out when the parties agreed on the figure of $145,000 so that the plaintiff can be said to have made an informed decision when he agreed to $145,000 for pain and suffering for it to be said that the plaintiff took into account the suffering that was increased by his knowledge that his life expectation has been reduced. I am unable to accept Mr Yap`s argument. There will be an award of $6,500 to the plaintiff for loss of expectation of life.

Loss of marriage prospects

The plaintiff`s claim is for $7,000 damages under this head. Mr Yap`s response is that the loss of marriage prospects is part and parcel of pain and suffering and loss of amenities and is included in the $145,000. In any case, $2,000 was given in Leong Lai Mun v Singapore Bus Service (1978) Ltd . If there must be a separate award then the agreed sum of $145,000 would have to be apportioned as follows:

(1) $143,000 for pain and suffering.

(2) $2,000 for loss of marriage prospect and pleaded as such.

In Moriarty v McCarthy, O`Connor J said (at p 218):

What is wrong with this is that there is not a sufficient valuation for the head of her lost opportunity of marriage. The fact is that the accident which has destroyed her earning capacity has also for effective purposes destroyed her chances of marriage. On that head, as I have said, she is an attractive girl. I put entirely from this equation the possibility that she may be a target for fortune hunters. But that is not the point. She can conceive and, in due course deliver, I take it by Caesarean section, a child, but for practical purposes she has had her chances of marriage, perhaps it is wrong to say destroyed, but certainly grossly reduced, and on the economic head, one must face reality, ... Why, then, should the defendant be relieved by some sleight of hand of compensating her for what her real loss is?

In Angus v Jones, the plaintiff was a man aged 26 at the date of the accident and 30 at the date of the trial. He wore a condom device attached to his penis and his bladder operated in a reflex fashion. There was a total loss of sexual function. He was confined to a wheelchair and the prospects of marriage extremely remote. The court when assessing damages for pain and suffering took into consideration the loss of marriage prospects.

The plaintiff`s physical and medical problems will not permit the plaintiff to lead a normal sex life. The plaintiff must be given fair compensation for his loss of marriage prospects. The plaintiff should be compensated for the loss of the comfort of a wife made remote by his injuries. The plaintiff`s parents are elderly and his brothers and sisters will, no doubt in the course of time, marry, and have their own families. There is every prospect of the plaintiff living alone. The plaintiff`s claim for $7,000 under this head however, is not supported by any authorities.

Pain and suffering and loss of amenities

Pain and suffering and loss of amenities are usually quantified together and a single award is usually made without indicating how much is awarded under each head, partly because it is difficult to separate them. Damages for loss of amenities or reduced enjoyment...