Chang Ah Lek and Others v Lim Ah Koon

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Karthigesu JA
• Judgment Date: 25 September 1998
• Neutral Citation: [1998] SGCA 61
• Citation: [1998] SGCA 61
• Defendant Counsel: NK Pillai and Adeline Foo (instructed) and Gurdaib Singh (Gurdaib Cheong & Pnrs)
• Plaintiff Counsel: Mahendra Prasad Rai (Cooma & Rai)
• Published date: 19 September 2003
• Docket Number: Civil Appeal No 206 of 1997
• Date: 25 September 1998
• Subject Matter: Damages,Tort,Negligence,Whether to be awarded with interest,Future medical expenses,Civil Procedure,Loss of future earnings compared with loss of earning capacity,Appeal against registrar's assessment of damages,Quantum,Appeals,Whether general rule that appellate court will not interfere with lower court's assessment apply,Personal injuries

(delivering the grounds of judgment of the court): In this appeal the appellants, who were defendants in the action, appealed against the award of damages and interest for personal injuries awarded by Lai Siu Chiu J. We dismissed the appeal except for setting aside the award for interest on the sum of $5,000 which the learned judge had awarded for future medical expenses. We now give our reasons.

At the time of the accident the respondent, an ironmonger, worked as a sub-contractor dealing with iron works for Hock Seng Engineering Works.

On 15 January 1993, the date of the accident, the respondent was a passenger in the rear carriage of the pick-up GJ 1020A (`the pick-up`) and was injured when there was a collision involving the pick-up and a lorry YG 6707Y (`the lorry`) along Neo Tiew Road. The pick-up was owned by the first appellant and driven by the second appellant while the lorry was owned by the third appellant and driven by the fourth appellant. As a result of the collision the respondent`s right arm was severely injured resulting in a shortening of the forearm.

On 20 February 1997, Lai Siu Chiu J decided on liability only. The learned judge apportioned one-third liability to the second appellant, the driver of the pick-up and two-thirds liability to the fourth appellant, the driver of the lorry. Their appeal against liability to make the respondent contributorily negligent was dismissed by us on 20 October 1997. The assessment of damages was referred to the registrar.

The amounts assessed by the assistant registrar were as follows:

(a) General damages for pain and suffering at $35,000 ($30,000 for injury to the arm and $5,000 for the scars) with interest at 6% pa from date of writ to judgment;

(b) Loss of earnings at $78,000 with interest on $27,000 at 3% pa from date of writ to judgment;

(c) Loss of earning capacity at $17,000;

(d) Special damages at $12,120.70 with interest at 6% pa from date of writ to judgment.

Both the appellants and the respondent appealed to the judge in chambers. The respondent appealed against the sums awarded for pain and suffering, loss of earnings and loss of earning capacity contending that the awards were inadequate whilst the appellants appealed against the sums awarded for loss of earnings and loss of earning capacity contending that they were excessive.

The appeals were heard by Lai Siu Chiu J who allowed the respondent`s appeal and dismissed the appellants` appeal. In doing so, the learned judge varied the assistant registrar`s award as follows:

General damages

(a) Pain and suffering

(i) injury to arm: $35,000

(ii) scars: $5,000

(b) Future medical expenses: $5,000

(c) Loss of earning capacity: $192,000 ($1,000 per month for 16 years)

Special damages

(a) Agreed items $12,120.70

(b) Loss of pre-trial earnings

(i) 15.1.93 to 14.8.96 (43 months at $1,000 per month) : $43,000

(ii) 15.8.96 to 11.9.97 (13 months at $500 per month) : $6,500

Interest

Interest at 3% pa on $61,500.70 (ie all the special damages items) from date of accident (15.1.93) to 12.9.97.

Interest at 6% pa on $45,000 (ie pain and suffering and future medical expenses) from date of writ (24.4.95) to 12.9.97.

The first ground of appeal raised by the appellants was that the learned judge in increasing the award for the pain and suffering occasioned by the injury to the arm from $30,000 to $35,000 had ignored the elementary principles relating to the circumstances when an appellate court would interfere with a lower court`s assessment of damages. In Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at p 616 Lord Wright in approving Greer LJ`s oft quoted statement of the principle also explained the rationale underlying the principle. His Lordship said:

Where, however, the award is that of a judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v Lowell [1935] 1 KB 354, 360). In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.

The appellant`s contention was that since Lai Siu Chiu J was sitting on appeal over the assistant registrar`s award she ought not to have interfered with his award of $30,000 for pain and suffering even if in the learned judge`s assessment the balance of opinion or preference justified an award of $35,000 as this would amount to the learned judge supplanting her discretion over the assistant registrar`s discretion and not because the assistant registrar had gone wrong on a principle of law or had misapprehended the facts or had made a wholly erroneous estimate.

It was further submitted that this principle applied not only in the case of appeals from the High Court to the Court of Appeal but also in the case of appeals from registrars and assistant registrars to a judge in chambers. Ng Siew Choo v Tan Kian Choon [1990] SLR 331 [1990] 2 MLJ 333 and Peh Diana v Tan Thiang Lee [1991] SLR 341 [1991] 3 MLJ 375 were cited as examples where judges of the High Court sitting on appeals from registrars and assistant registrars had observed the rule stated by Greer LJ in Flint v Lowell .

On the other hand counsel for the respondent submitted that when a judge in chambers hears an appeal from registrars the judge rehears the application as if he is sitting at first instance although he will accord the appropriate weight to the registrar`s decision but has complete freedom in the exercise of his own discretion. Hence the learned judge was not bound by the assistant registrar`s exercise of discretion in coming to a figure of $30,000 for pain and suffering and was entitled to impose her own discretion and award $35,000. In any case, respondent`s counsel submitted that the learned judge had shown by her careful analysis of the medical evidence and the relevant authorities dealing with awards for this particular type of injury that the assistant registrar had made `a wholly erroneous estimate of the damage suffered`. A difference of $5,000 when the range of awards is between $18,000 to $35,000, with a one-off award of $50,000 could not be considered insignificant.

The award of $50,000 was made in Mukhtiar Singh v Balwyndarjeet Singh [1993] 3 SLR 741 where the plaintiff`s injuries were a fracture of the humerus in which a metal plating was inserted, an amputation of the right thumb and a transplant of the index finger, which had resulted in a 50% loss of the use of the right hand. In the learned judge`s view the respondent`s injuries were less serious and in any case the respondent was not contending for $50,000 but for $40,000 to $45,000. The learned judge found Geetha v Hong Kong Teakwood Works (S) Pte Ltd [1992] 1 SLR 920 more comparable. In this case the plaintiff was awarded $35,000 for the traumatic amputation of the left upper limb about the wrist joint. Accordingly, after making due allowances for differing features she awarded the appellant $35,000.

It was evident to us from a perusal of the record of proceedings before the assistant registrar that he had not correctly evaluated the medical evidence nor had he considered the authorities that the learned judge had. To quote the words of Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd the assistant registrar had misapprehended the facts and the law and had come to a wholly erroneous estimate of the damages suffered. Accordingly the appellants failed to satisfy us that the learned judge had erred by increasing the award for pain and suffering from $30,000 to $35,000.

Notwithstanding this conclusion we should examine respondent`s counsel`s submission that a judge in chambers hearing a registrar`s appeal is not bound by the rule that the court ought not to interfere with an award for damages unless the court is satisfied that the judge has acted on a wrong principle of law or has misapprehended the facts or has for these or other reasons made a wholly erroneous estimate of the damages suffered (referred to hereafter as `the rule in Flint v Lowell `).

Section 62(1) of the Supreme Court of Judicature Act reads:

The Registrar, the Deputy Registrar and the Assistant Registrars shall, subject to the provisions of this Act or any other written law, have the same jurisdiction, powers and duties as the masters of the Supreme Court, clerks of criminal courts, registrars and like officers in the Supreme Court of Judicature

...