Azana Binte Atan v Kwa Yin En

• Jurisdiction: Singapore
• Judge: Loh Hui-min
• Judgment Date: 28 March 2022
• Neutral Citation: [2022] SGDC 56
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 3566 of 2019, Assessment of Damages No 186 of 2020
• Year: 2022
• Published date: 02 April 2022
• Hearing Date: 05 January 2022,11 March 2022
• Plaintiff Counsel: Sarindar Singh (M/s Singh & Co)
• Defendant Counsel: Tan Seng Chew Richard (M/s Tan Chin Hoe & Co)
• Subject Matter: Damages,Measure of damages,Personal injuries cases
• Citation: [2022] SGDC 56

Deputy Registrar Loh Hui-min: Introduction

On 24 April 2017, the Plaintiff, then aged 52 years old, met with an accident when the Defendant’s motorcar collided with the motorcycle she had been riding pillion on (“the Accident”).

The present suit was commenced on 3 December 2019. Interlocutory judgment in default of appearance was entered on a 100% basis against the Defendant on 4 February 2020 with damages to be assessed and costs and interest reserved to the registrar hearing the assessment.

The assessment of damages hearing took place on 5 January 2022. The Plaintiff was the only witness called to give evidence. Both counsel for the Plaintiff, Mr Sarindar Singh (“Mr Singh”) and counsel for the Defendant, Mr Tan Seng Chew Richard (“Mr Tan”) had agreed to dispense with the attendance of the medical expert witnesses and admit the medical reports dated 12 September 2017¹, 20 June 2018² and 13 September 2019³. As a result of their election, I did not have the benefit of the expert witnesses clarifying or elaborating on various aspects of these medical reports. This had a significant impact on the Plaintiff’s case, as will be elaborated upon below.

After careful consideration of the evidence and parties’ arguments, I awarded the Plaintiff a total of $30,849.50 in damages. I ordered interest to run at 5.33% per annum from the date of the writ (3 December 2019) to the date of the judgment (11 March 2022) on the sum of $30,849.50.

Plaintiff’s claim for pain and suffering

The Plaintiff claimed that she sustained the following injuries in the Accident: left 3rd to 7th displaced rib fractures with left lung upper lobe pulmonary contusion and tiny hydropneumothorax; left superior and inferior pubic ramus fractures; multiple deep dermal abrasions over the left shoulder, left arm, left knee and left leg; left elbow contusion; left back wound 7.5 x 8.5 cm; luxated #11 upper right central incisor and #21 upper left central incisor; and scars.

In submissions, the Plaintiff also alleged for the first time, that she was also afflicted with the following disabilities arising from the injuries she had sustained:⁴ unable and/or unfit for employment in any employment in any vocation requiring her to stand, walk or lift any load; difficulty in walking long distances and/or over uneven ground; difficulty in climbing stairs; difficulty in kneeling or squatting; limping gait and the disability is permanent; pain in the left lateral chest wall when abduct her arms to reach for objects; and residual pain in the left leg with numbness and the left side of the torso.

None of these alleged disabilities were mentioned by the Plaintiff in her affidavit of evidence-in-chief⁵ (“AEIC”) or in her oral testimony. As such, not only was Mr Tan deprived of the opportunity to cross-examine her on these claims, but they seemed to me to be afterthoughts. These alleged disabilities were also completely unsupported by the available medical evidence. They were not mentioned in any of the three medical reports tendered to court. On the contrary, it was stated in the 20 June 2018 medical report that:⁶

Patient was last seen in the outpatient specialist clinic on 24/1/2018. The wounds were all healed with shoulder range of motion reaching full capacity. She was able to breathe well with no pain.

Under cross-examination, the Plaintiff was unable to recall if she had returned to Ng Teng Fong General Hospital since her review on 24 January 2018⁷ but confirmed that at present, she was not seeing any doctors for any of her injuries.⁸

In the circumstances, I found that the Plaintiff had failed to prove on the balance of probabilities that she suffered from the alleged disabilities. Accordingly, I did not take them into account when assessing the damages to be awarded for pain and suffering.

Decision on damages for pain and suffering

Before dealing with each of the alleged injuries, I set out my general approach in assessing the damages for pain and suffering.

The quantification of damages for non-pecuniary losses, as is the case for claims for pain and suffering, is inherently difficult because such losses do not lend themselves to straightforward mathematical calculation. The guiding principle is therefore that of “fair compensation”, which means that compensation ought to be reasonable and just and need not be “absolute” or “perfect” (see Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 at [9]).

In assessing the quantum of damages to be awarded for pain and suffering, I obtained guidance from the ranges of damages published in Charlene Chee et al, Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”) as well as various precedent cases⁹. However, whilst these give a sense of the range of possible awards for each type of injury, each case must ultimately turn on its own particular facts (see Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR(R) 178 (“Ronnie Tan”) at [11]).

Moreover, where the precedent cases were unreported, I treated them with some caution. This is because no detailed reasons for the damages awarded would have been issued, and their facts when summarised in digest (e.g., in Carrie Chan et al, Practitioner’s Library – Assessment of Damages: Personal Injuries and Fatal Accidents (Lexis Nexis, 3rd Ed, 2016) (“the Blue Book”)), could lack sufficient particularity for meaningful comparisons to be made with the present case.

Finally, bearing in mind that the cited precedent cases were decided, and the Guidelines rendered several years ago, the damages awarded have been adjusted upwards to take into account the effect of inflation: see Ronnie Tan at [18].

Left 3rd to 7th displaced rib fractures with left lung upper lobe pulmonary contusion and tiny hydropneumothorax

The Plaintiff submitted for an award of $20,000, citing Lee Seow Chuan v Trans-Island Bus Services Pte Ltd & Anor (Unreported, DC Suit No. 1442 of 2000)¹⁰ (“Lee Seow Chuan”), where the sum of $20,000 had been awarded for the fracture of six ribs on the left side with pneumothorax, and Tan Kim Lee v Mohd Yusof bin Hussain & Anor (Unreported, DC Suit No. 3084 of 2000)¹¹ (“Tan Kim Lee”), where the sum of $15,000 had been awarded for the fracture of the right 5th to 9th ribs with right haemo-pneumothorax.¹²

The Defendant submitted for an award of $8,000 based on the Guidelines as follows:¹³

Description	Range of awards
(c) Minor (i) Bruises and fractures of ribs causing serious pain and disability over a period of weeks but here are no lasting disabilities. Prognosis is good and full recovery is achieved in a few weeks. …	$1,500 - $15,000 Generally, $2,000 per rib although overlapping must be taken into consideration, adding $3,000-$4,000 for pneumothorax or haemothorax (where the rib bone pierces the lung or heart)

According to the 20 June 2018 medical report, “open reduction and internal fixation of the left 3rd to 7th ribs fractures were performed” and the Plaintiff had “recovered uneventfully”.¹⁴ When she was seen on 24 January 2018, “she was able to breathe well with no pain”.¹⁵ I therefore found that the Plaintiff had recovered from these injuries with no residual disabilities by 24 January 2018 (about nine months from the date of the accident) at the latest. The Plaintiff’s injuries thus fell to be a minor chest injury within the aforesaid description in the Guidelines.

I was unable to accept the Plaintiff’s submission. An award of $20,000 would lie at the very highest end of Guideline range applicable to moderate chest and lung injuries which cause some continuing disability that will impact the injured person’s ability to work and is likely to be permanent. This factor of continued disability was not present here. The present case was also clearly distinguishable from Zakaria bin Putra Ali v Low Keng Huat Construction Co (S) Pte Ltd & Ors [1993] SGHC 277, where $15,000 was awarded to a claimant whose six fractured ribs and pneumothorax when healed, left an obvious depression in his chest wall and continued to cause him pain when breathing.

In my view, the two cases cited by the Plaintiff ought to be treated with caution. The award in Tan Kim Lee was agreed upon by parties and did not arise from an assessment by the court. As for Lee Seow Chuan, the award made there was substantially higher than awards in cases involving multiple rib fractures with associated lung injuries, but full recovery was achieved with no lasting disabilities. For example: $5,000 awarded for comminuted fractures of 2 ribs with pneumothorax: Mullaichelvan s/o Perumal v Lee Heng Kah [2013] SGHCR 3. $8,000 awarded for fracture of right 2nd to 5th ribs and left 5th to 7th ribs: Teo Seng Kiat v Goh Hwa Teck (Unreported, HC Suit No. 2244 of 1998)¹⁶. $6,000 awarded for fracture of 4th to 7th ribs: Lim Mei Cheng v Lim Siew Choo (Unreported, DC Suit No. 4952 of 2001)¹⁷ (“Lim Mei Cheng”). $7,000 was awarded for fractures of the 4th to 6th ribs which caused a right haemothorax that required the immediate insertion of a chest tube to remove blood upon hospital admission (which was only removed 8 days later): Ooi Han Sun and anor v Bee Hua Meng [1991] 1 SLR(R) 922.

Having regard to the nature of the injuries (including overlaps) as well as the Guideline range and case precedents, I assessed $10,000 to be an appropriate award for the Plaintiff’s chest injuries.

Left superior and inferior pubic ramus fractures

The Plaintiff submitted for an award of $30,000 citing Bong Hwee Haw v Silviu Ionescu (Unreported, HC Suit No. 437 of 2010) ¹⁸ (Bong Hwee Haw), where the sum of $25,000 had been awarded for fracture of pelvis (right superior and inferior pubic rami).

The Defendant submitted for an award of $5,500 based on the Guidelines as follows:¹⁹

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