Chang Mui Hoon v Lim Bee Leng

• Jurisdiction: Singapore
• Judge: Colin Seow AR
• Judgment Date: 20 June 2013
• Neutral Citation: [2013] SGHCR 17
• Court: High Court (Singapore)
• Docket Number: Suit No 149 of 2011 (Notice of Appointment for Assessment of Damages No 46 of 2012)
• Year: 2013
• Published date: 21 June 2013
• Hearing Date: 03 October 2012,20 June 2013,04 October 2012,15 January 2013,17 October 2012,02 October 2012,02 May 2013,01 October 2012
• Plaintiff Counsel: Andrew J Hanam (Andrew LLC)
• Defendant Counsel: Niru Pillai (Global Law Alliance LLC)
• Subject Matter: Damages,Assessment
• Citation: [2013] SGHCR 17

Colin Seow AR: Introduction and brief procedural history

On 7 September 2009, a road traffic accident (“the accident”) occurred between a motor vehicle bearing registration plate number SFL5663U (“SFL5663U”) and another motor vehicle bearing registration plate number SFH303M (“SFH303M”) along the Pan Island Expressway. The plaintiff, Ms Chang Mui Hoon (“the Plaintiff”), was then sitting in the front passenger seat of SFL5663U. SFH303M, which collided into the rear of SFL5663U, was at the material time driven by Ms Lim Bee Leng (“the Defendant”).

The Plaintiff commenced a suit against the Defendant on 8 March 2011. On 25 January 2012, interlocutory judgment (“the consent judgment”) was entered by consent in favour of the Plaintiff. The Notice of Appointment for Assessment of Damages No 46 of 2012 (“NA 46/2012”) was filed on 27 September 2012, after which NA 46/2012 came up for hearing before me from 1 October 2012 to 4 October 2012, at the end of which it became part heard. The hearing of the evidence eventually concluded on 15 January 2013, and parties’ closing written submissions and reply submissions were tendered and exchanged by 7 March 2013 and 15 March 2013 respectively. In the meantime, however, an application to amend what was by then the Statement of Claim (Amendment No 3) was taken out by the Plaintiff on 13 March 2013 and it came up for hearing on 2 May 2013 (“the SOC amendment hearing”) whereupon it was partially granted. With the leave of this court, the parties later exchanged further consequential closing written submissions for NA 46/2012 on 23 May 2013. Having read and considered all the written submissions tendered in respect of NA 46/2012, I now deliver my judgment with my reasons.

The claims

The Plaintiff’s claim for general damages is in respect of a whiplash injury to her neck, alleged post-traumatic stress disorder and alleged depression which the Plaintiff claims she suffered as a result of the accident. The Plaintiff had earlier in the course of proceedings also claimed damages for alleged injury to her back (in particular, injury to her lumbar spine). However, this claim was abandoned at the SOC amendment hearing before me on 2 May 2013 (see [2] above). The Plaintiff has also claimed general damages for future medical expenses and loss of earning capacity.

The Plaintiff’s claim for special damages includes medical expenses, maid expenses, transport expenses and pre-trial loss of income. I now deal with each of these categories of claims below.

General damages Whiplash injury on the Plaintiff’s cervical spine

There is no dispute that the Plaintiff sustained whiplash injury on her neck (ie, the cervical spine) as a result of the accident. The only dispute before me was the severity of the whiplash injury.

The Plaintiff’s case is that she sustained a “Grade 2” whiplash injury under the Quebec Severity Classification of Whiplash Associated Disorders (“the Quebec Severity Classification”),¹ and seeks damages in the sum of $35,000. The Defendant, on the other hand, argues that the Plaintiff’s whiplash injury is merely a “Grade 1” injury warranting a significantly smaller sum in damages. For completeness, the Quebec Severity Classification is set out below:

THE QUEBEC SEVERITY CLASSIFICATION OF WAD
GRADE	CLINICAL PRESENTATION
0	No neck symptoms, no physical signs
1	Neck pain, stiffness or tenderness only, no physical signs
2	Neck symptoms and musculoskeletal sign(s)
3	Neck symptoms and neurological signs
4	Neck symptoms and fracture or dislocation

According to the Quebec Severity Classification, the expression “musculoskeletal signs” means a “decrease in the range of motion and point tenderness”, and the expression “neurological signs” means a “decrease or absence of deep tendon reflexes, weakness and sensory deficits”.²

In support of the Plaintiff’s claim for a “Grade 2” whiplash injury, Dr Chang Wei Chun (“Dr Chang”), an orthopaedic surgeon, was called to give expert evidence on the extent of the Plaintiff’s whiplash injury. According to Dr Chang, he had examined the Plaintiff on 1 June 2011 whereupon he observed restrictions in the movements of the Plaintiff’s cervical spine.³ Dr Chang explained that he had arrived at the opinion that the Plaintiff’s whiplash injury was a “Grade 2” injury because in an earlier medical report dated 22 October 2009⁴ (prepared by another orthopaedic surgeon named Dr David Wong Him Choon (“Dr Wong”) who examined the Plaintiff around two and a half weeks after the accident), Dr Wong had recorded that the Plaintiff had complained of “pain radiat[ing] down the right shoulder and upper limb as well as the interscapular region”. This, Dr Chang explained, would have placed the Plaintiff’s whiplash injury under “Grade 3” according to the Quebec Severity Classification since there were manifestations of “neurological signs” beyond just pain and restriction of movement in the Plaintiff’s neck (see table at [6] above). However, Dr Chang also noted that by the time he examined the Plaintiff on 1 June 2011, these neurological symptoms were no longer present. Taking the middle ground between a “Grade 1” whiplash injury (based on Dr Chang’s examination of the Plaintiff on 1 June 2011) and a “Grade 3” whiplash injury (which Dr Chang derived from Dr Wong’s medical report dated 22 October 2009), Dr Chang concluded that the most appropriate classification for the Plaintiff’s whiplash injury in the circumstances would be “Grade 2”.⁵

Dr Chang’s conclusion is disputed by the Defendant. The Defendant’s expert witness, Dr Teh Peng Hooi (“Dr Teh”), a consultant orthopaedic surgeon, gave evidence that the Plaintiff’s whiplash injury was a mild one at “Grade 1” under the Quebec Severity Classification. In arriving at this opinion, Dr Teh relied on, inter alia, a report of the Plaintiff’s medical examination conducted at Raffles Hospital several hours after the accident happened where the examining doctor, Dr Raj Jayarajasingam (“Dr Raj”), stated the following observations:⁶

I saw [the Plaintiff] in our Accident and Emergency Department, Raffles Hospital on 07th September 2009.

She said she had been in a road traffic accident earlier that day. She said she had some neck and left face pain.

Clinically examination unremarkable.

X-ray of her face and neck C spine was normal.

…

[emphasis added]

Dr Teh explained that had the Plaintiff indeed sustained a “Grade 2” whiplash injury from the accident, Dr Raj would not have simply recorded a finding of “[c]linically examination unremarkable” which, contrary to Dr Chang’s dismissal of that statement for being “subjective”,⁷ meaningfully indicated that there were no remarkable symptoms insofar as the Plaintiff’s neck was concerned at the time of the medical examination.⁸ Dr Teh in his evidence also gave his medical opinion that in order for one to be able to fully assess the severity of any physical injury, medical examination of the injury has to be conducted within a “window of opportunity” of no more than two to three days after the injury was sustained:⁹

… When you assess an injury, invariably most time the window of opportunity for knowing the seriousness of the condition after an injury, I would say is within 2-3 days at the most. That is the best window of opportunity to know what damage has been done and what injury was sustained. …

Accordingly, Dr Teh averred that Dr Raj’s medical report (see [9] above) would provide the most accurate account of the extent of the Plaintiff’s neck injury, and that all other accounts given by the Plaintiff’s medical experts, including that of Dr Chang’s, were unreliable because the medical examinations conducted by those experts all took place several months after the date of the accident.¹⁰

With regard to the alleged neurological symptoms which the Plaintiff has complained of (see [8] above), Dr Teh was of the view that those symptoms were attributable to a pre-existing degenerative condition known as cervical spondylosis¹¹ and further added that the neck pain complained of was and continues likely to be of a psychological origin instead – a medical condition referred to as somatoform disorder.¹² This latter assertion echoes the findings in a medical report dated 15 August 2011 prepared by the Defendant’s other expert witness, Dr Calvin Fones Soon Leng (“Dr Fones”), who is a consultant psychiatrist.¹³

Having considered the evidence before me, I am of the view that the Plaintiff has suffered a “Grade 1” whiplash injury under the Quebec Severity Classification. I accept that Dr Raj’s medical report (see [9] above), given its contemporaneity vis-à-vis the time of the accident, cannot simply be dismissed as being “subjective” or, to use some of Dr Chang’s harsher words, to be considered “not worth the paper it is written on”.¹⁴ By comparison, all other accounts given by the Plaintiff’s expert witnesses (in particular Dr Chang’s account) and documented in their medical reports,¹⁵ insofar as any part thereof is being relied upon by the Plaintiff to prove that she has sustained a “Grade 2” whiplash injury is concerned, carry substantially less weight in that same regard, because those accounts arose from medical examinations of the Plaintiff which took place long after – in the order of months – the accident happened. Apropos, it is worth mentioning that Dr Chang’s medical examination of the Plaintiff took place more than one and a half year after the accident took place (see [8] above).

With regard to Dr Wong’s medical report dated 22 October 2009, some additional observations need to be made other than that Dr Wong’s medical examination of the Plaintiff took place around two and a half weeks (see [8] above) after the accident (ie, around six times more than the “window of opportunity” as explained above would allow). Dr Wong had earlier deposed to an affidavit of...