Chai Kang Wei Samuel v Shaw Linda Gillian

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 27 May 2010
• Neutral Citation: [2010] SGCA 22
• Citation: [2010] SGCA 22
• Defendant Counsel: P E Ashokan and Susie Ann Smith (KhattarWong)
• Published date: 21 June 2010
• Plaintiff Counsel: Anthony Wee (United Legal Alliance LLC)
• Hearing Date: 03 February 2010
• Docket Number: Civil Appeal No 115 of 2009
• Date: 27 May 2010
• Subject Matter: Damages

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

The proceedings that led to this appeal arose out of a road accident involving Mr Chai Kang Wei Samuel (“the Appellant”) and Ms Linda Gillian Shaw (“the Respondent”). The Appellant did not contest his liability for the injuries the Respondent suffered as a result of the accident, and interlocutory judgment was entered in favour of the Respondent at an early stage of the proceedings. What remained to be determined was the appropriate quantum of damages to be awarded to the Respondent for the injuries she had sustained. The assistant registrar who presided over the assessment of damages proceedings (“the AR”) made his award on 26 March 2009. Dissatisfied with the AR’s decision, both parties appealed. The High Court judge (“the Judge”), who heard the appeals, allowed both appeals in part. Dissatisfied with the Judge’s decision, the Appellant appealed to this court. We heard the appeal on 3 February 2010 and allowed the appeal in part. We now give the reasons for our decision.

Background facts

The accident in question occurred on 6 December 2003 at about 12.44am at the junction of Paterson Road and Orchard Road. The Appellant had lost control of the car which he was driving. It mounted the pavement and collided with a number of people, including the Respondent who was waiting at the pavement to cross the road. The Respondent, an Australian national aged 26 at that time, was then on vacation in Singapore. On 1 July 2004, the Appellant pleaded guilty to a charge of dangerous driving (see Public Prosecutor v Chai Kang Wei Samuel [2004] SGDC 198). On 15 November 2006, interlocutory judgment for full liability was entered by consent against the Appellant, with damages to be assessed.

As a result of the accident, the Respondent sustained a fracture at the base of her skull which resulted in traumatic brain injury. This, in turn, caused, inter alia, muscular weakness on the right side of her body, weakness in her tongue and throat muscles, vocal cord paralysis, amnesia, and cognitive impairments. Other injuries suffered by the Respondent included: (a) right leg, metatarsal and cuboid bones fractures; (b) severe degloving of the right foot and lateral ankle; and (c) multiple bruises, abrasions and haematoma. The extensiveness of the Respondent’s injuries caused her to be on medical leave from 6 December 2003 to 28 February 2006 – this being a total of 816 days.

Prior to the accident, the Respondent worked as a full-time physiotherapist at Adelaide Community Healthcare Alliance Incorporated (Ashford Hospital) (“ACHA”), and as a self-employed physiotherapist contracted to another health care provider, Sportsmed SA (“Sportsmed”). However, she only started work at ACHA on 16 June 2003, barely six months before the date of the accident, working an average of about 38 hours a week with a wage of AUD$28.01 per hour as at the time of the accident. There was no concrete evidence on the income that the Respondent was receiving from her contract with Sportsmed.

Following the accident, the Respondent decided to make better use of her idle time on medical leave. For a few months towards the end of 2004, she did some casual data entry and analysis work. From January 2005 to February 2006, she studied full-time in the bachelor of health science course at the University of South Australia.

At the beginning of March 2006, following the completion of her degree course and the expiry of her medical leave, the Respondent returned to work at ACHA, but on a part-time basis and performing only light duties. On 2 January 2007, the Respondent returned to full-time work at ACHA. However, she soon found that she was not able to perform her duties as well as she could before the accident, and also that her work was too painful and exhausting to cope with. As a result, on 4 February 2007, the Respondent resigned from her full-time work at ACHA. From 5 February 2007 onwards, the Respondent joined a private outpatient physiotherapy practice, PhysioONE. There, she initially worked on a casual basis for up to five hours a day for three days a week. Over time, she increased her working hours. As at the time of the assessment of damages proceedings, she worked for an average of 34 hours a week with the most recent documentary evidence on her salary indicating that her wage was AUD$38.769 per hour. On 25 June 2007, the Respondent rejoined her previous employer ACHA on a part-time basis. Thus, it would appear that at the time of the assessment of damages proceedings, the Respondent held two part-time jobs. In her tax returns for the year ending 30 June 2007, the Respondent reportedly earned AUD$53,701 (although she stated in her closing submissions before the AR that she was earning AUD$67,449.20).

Proceedings before the AR and the Judge

After hearing the parties, the AR made the following awards (in addition to two agreed items and two very small sums which we need not be concerned about) in favour of the Respondent: (a) S$135,000 for pain, suffering and loss of amenities; (b) AUD$209,078.66 for pre-trial loss of earnings; (c) AUD$305,195.04 for loss of future earnings; (d) AUD$15,000 for loss of earning capacity; (e) AUD$49,346.70 for future medical expenses; and (f) AUD$91,804.99 for loss of annual leave. Dissatisfied with several components of the damages awarded, both parties appealed. The Appellant, we would mention in particular, sought to have the award for loss of future earnings set aside, as well as to have the quantum awarded for pre-trial loss of earnings, loss of future earning capacity and loss of annual leave reduced. On appeal, the Judge, inter alia, reduced the quantum awarded for pre-trial loss of earnings to AUD$202,061.08, increased the amount awarded for pain, suffering and loss of amenities to $200,000 (an increase of $65,000), and increased the quantum awarded for loss of earning capacity to AUD$50,000. The Judge’s detailed reasons for his decision are set out in Shaw Linda Gillian v Chai Kang Wei Samuel [2009] SGHC 187 (“the Judgment”).

Issues on appeal

In his Notice of Appeal to this court, the Appellant raised the following grounds of appeal against the Judge’s decision: whether the quantum awarded for pain, suffering and loss of amenities arising from the Respondent’s head injuries was excessive; whether the quantum awarded for loss of future earnings was correct in law; whether the quantum awarded for loss of earning capacity was excessive, when loss of future earnings was also awarded; and whether there was sufficient basis to support the quantum awarded for pre-trial loss of earnings. In addition to these grounds, the Appellant raised two other grounds in relation to the quantum awarded for the damage to the Respondent’s anterior cruciate ligament and for the Respondent’s medical leave for future treatment. However, prior to the hearing before us, the Appellant decided to abandon these two additional grounds.

Loss of future earnings and loss of earning capacity General principles

It will be apposite to begin by setting out our views on certain general principles concerning loss of future earnings and loss of earning capacity. The Appellant made extensive submissions on the nature and distinction between loss of future earnings and loss of earning capacity. The Appellant contended that, in the circumstances of the present case, the Respondent should be awarded loss of earning capacity and not loss of future earnings. He contended that where the evidence of a victim’s loss of future earnings was either sketchy or speculative, which he submitted was the case here, a lump sum award for loss of earning capacity would be the correct award to make, as opposed to an award for loss of future earnings. He also submitted that even if the court should find that there was sufficient evidence vis-à-vis the Respondent’s loss of future earnings, the award for loss of earning capacity should not be a significant sum if the amount awarded for loss of future earnings was substantial. In reply, the Respondent did not disagree with the principles of law advanced by the Appellant, but she disagreed with the way the Appellant sought to apply them to the circumstances of this case.

It would be useful if we address the true nature of loss of future earnings and loss of earning capacity. The two heads of damages are not strictly alternative to each other, although in an appropriate case, if the plaintiff should fail in his or her claim for loss of future earnings, he or she could nevertheless be awarded damages for loss of earning capacity. The two heads of damages do not necessarily share any symbiotic relationship, as they are distinct and are meant to compensate different losses suffered by an injured plaintiff. A good starting point for an understanding of these two heads of damages is the case of Ashcroft v Curtin [1971] 3 All ER 1208 (“Ashcroft”). In that case, the plaintiff was a skilful precision engineer who had his own successful one-man sole proprietorship converted into a limited company in which he and his family held all the shares. Unfortunately, he met with an accident when the defendant’s van collided into his car as he stopped at a crossing to let pedestrians cross. As a result of the injuries he sustained from the accident, he could no longer work as hard as he used to. He was noted to be slower and less efficient. For four years after the accident, there was a reduction in the profits of the plaintiff’s company.

The trial judge quantified the loss suffered at £1,500 per year and applied a multiplier of seven years, giving a total award of £10,500 for loss of future earnings. On appeal, the English Court of Appeal reduced the trial judge’s award for loss of future earnings to £2,500. Edmund Davies LJ, who delivered the main judgment, held that although the evidence...