Chew Der Lun v Sin Zhixiang, Shaun

• Jurisdiction: Singapore
• Judge: Liu Zeming
• Judgment Date: 13 March 2023
• Neutral Citation: [2023] SGMC 13
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Court Suit No 11339 of 2020, Assessment of Damages No 77 of 2022
• Hearing Date: 17 November 2022,31 August 2022,20 June 2022,25 January 2023
• Citation: [2023] SGMC 13
• Year: 2023
• Plaintiff Counsel: Wong Yong Sheng Kenneth (Teo Keng Siang LLC)
• Defendant Counsel: Kwok Chern Rae (Foo Kwok LLC)
• Subject Matter: Damages,Assessment,Evidence,Admissibility of evidence
• Published date: 18 March 2023

Deputy Registrar Liu Zeming:

The Plaintiff’s motorcycle (the “Vehicle”) was damaged in a road traffic accident. He claimed $14,400 as “cost of repair”. A single joint expert (“SJE”) appointed by the court opined that the “Lump Sum Repair Cost” should be $5,600 instead. So far, nothing out of the ordinary.

As it turned out, the main (if not only) reason why the SJE recommended a significantly lower repair cost was because the SJE proceeded on the basis that he need not provide any estimate for numerous parts of the Vehicle which were in fact damaged, but, according to the SJE, not repaired or replaced by the repair workshop. These damaged parts were allegedly reused and fitted back to the Vehicle.

Against this background, parties proceeded to argue the case with intense focus on “whether or not the repairer repaired the damaged parts”.¹ But was that the right question to ask?

Background

On 27 April 2018, a collision occurred between the Plaintiff’s motorcycle and the Defendant’s car.² Repair on the Plaintiff’s motorcycle was done by Albert Motor Supply Pte Ltd (“Albert Motor”).³ Before the repairs were undertaken, the Plaintiff engaged L H Teo Appraisal Services (“LH Teo”) to conduct a pre-repair inspection of the motorcycle and to assess the cost for repairing the damage.⁴ The recommended repair cost from LH Teo was $14,400, and that was the amount eventually charged by Albert Motor.⁵ However, the Defendant was not agreeable to pay this amount. The Plaintiff therefore commenced the present action in October 2020, claiming compensation for damage to the Vehicle.

Since the dispute centred around the Plaintiff’s claim for “cost of repair” (and related claim for loss of use of the Vehicle during the period of repair), parties wished to appoint an expert witness to give an opinion on what was the reasonable repair cost for the Vehicle, as well as the reasonable duration for the repair. As the action was commenced in the Magistrate’s Court, a single joint expert had to be appointed pursuant to Order 108 r 5(3) of the Rules of Court (2014 Rev Ed). Mr Pang Kiah Kim of Form Team Consultancy (“Form Team”) was appointed as the SJE in this case.

The SJE issued his report on 9 November 2021 (the “SJE Report”).⁶ The SJE Report was addressed to “The State Courts of Singapore” care of the Plaintiff’s and the Defendant’s lawyers. It also referred to a set of “instructions on 27-Oct-2021” (the “Instructions”) and indicated that the SJE Report was prepared pursuant to those Instructions.⁷ I pause here to clarify three points. First, despite having addressed the SJE Report to the State Courts, the SJE Report was not in fact delivered to the State Courts at the time of its issuance. The SJE Report was first filed in court on 29 May 2022, when the Plaintiff filed his bundle of documents. Second, the court gave no “instructions” to the SJE prior to the preparation of his report. It would appear that the reference to “your instructions on 27-Oct-2021” in the SJE Report was a reference to joint instructions from the lawyers for the Plaintiff and the Defendant. Third, the Instructions were not adduced in evidence in the AD Proceedings. Accordingly, I did not know the precise instructions given to the SJE.

After the SJE Report was issued, parties agreed to enter consent judgment on liability with the Defendant paying the Plaintiff 90% of the damages to be assessed. The assessment of damages proceedings (the “AD Proceedings”) eventually took place before me between June to November 2022.

The SJE Report and evidence

As mentioned, parties’ focus in the AD Proceedings was on the SJE Report and the SJE’s evidence. It is therefore appropriate to provide an outline of these first.

The SJE Report

The SJE stated in his report that a “single joint expert evaluation” to the Vehicle was conducted pursuant to the Instructions.⁸ He then listed his recommended repair or replacement costs for each part of the Vehicle that was damaged, as well as his recommended costs for labour, towing and other miscellaneous items. The SJE’s recommendations were presented alongside the repair costs submitted by (i) Albert Motor (i.e. the repairer); and (ii) LH Teo (i.e. the Plaintiff’s surveyor), as shown in the extract below by way of example:⁹

The SJE’s total recommended repair cost was $6,980.07.¹⁰ The SJE then applied a 20% discount to this amount to arrive at what the SJE referred to as the “recommended Lump Sum Repair Cost” of $5,600 (rounded up to the nearest hundred).¹¹ The SJE did not explain why a 20% discount was applied.

After setting out the “recommended Lump Sum Repair Cost”, the SJE listed the documents he was provided with in preparing the SJE Report.¹² They were: The Defendant’s accident report and police report with colour photographs. The Plaintiff’s accident report and police report with colour photographs. A survey report with 37 colour photographs from LH Teo. The final repair bill from Albert Motor.

The SJE then stated as follows in his report:¹³

Based on the survey report of [the Vehicle] from [LH Teo], no resurvey was conducted when/or during the repairs was carried [sic] and after the motorcycle has completed its repair. Therefore, what are the parts that is being repaired or replaced, the surveyor had no knowledge at all. [Form Team] conducted a post repair survey immediately after the bike completed its repair and the exhaust system was found to be reused. No photographs was [sic] substantiated by LH Teo to show the headlamp was cut.

The SJE Report also included five photographs of the Vehicle (“Photographs”), purportedly showing the Vehicle “[a]fter [r]epair”.¹⁴ Four of the Photographs were close-up shots on the exhaust system of the Vehicle. However, the SJE made no express reference to the Photographs in his report and it was not immediately apparent on the face of the SJE Report: who took the Photographs; when these Photographs were taken; and the relevance of the Photographs to the SJE’s opinion.

None of the parties sought any clarification on the SJE Report and the SJE issued no supplementary / clarificatory report.

The SJE’s evidence

Three aspects of the SJE’s evidence at the AD Proceedings should be highlighted.

First, the SJE clarified the reason why the repair cost he recommended was significantly lower than that of LH Teo and the amount charged by Albert Motor – this was because he (i.e. the SJE) recommended zero repair costs for parts of the Vehicle which were, according to the SJE, “[d]amaged and not replaced”:¹⁵ Q: Pg 2 – 4 of your report – what LH Teo submitted and you dismissed. Are you saying these are not damaged, or damaged but no need to replace or not replaced? A: Damaged and not replaced. Has not been replaced and my surveyor found the old parts were fitted back. Q: For all these items submitted by LH Teo and dismissed by you? A: Yes.

[Emphasis added]

In other words, despite acknowledging that numerous parts of the Vehicle were in fact damaged and required repair (or replacement), the SJE did not provide for any repair cost for these parts because (according to the SJE) Albert Motor did not in fact repair or replace those parts.

A list of all the parts of the Vehicle which “LH Teo submitted” and “dismissed” by the SJE because they were “damaged and not replaced” is set out at Annex A.¹⁶ I shall refer to them collectively as the “Disputed Items”.

The second aspect of the SJE’s evidence worth noting was how he arrived at the conclusion that the Disputed Items were “not replaced”.

SJE did not personally inspect the Vehicle at any time.¹⁷ Instead, the SJE concluded that the Disputed Items were not replaced based on photographs of the Vehicle taken by one “Lim” (full name unknown) which were stored in certain filing system belonging to Form Team and to which the SJE had access. These photographs taken by “Lim” were not adduced in evidence by any of the parties. I set out the relevant parts of the SJE’s evidence on this below:¹⁸ Q: For [the Photographs], those were taken by Mr Lim? A: Yes. He is my surveyor who conducted a survey before repair and a re-survey immediately after repair on 31 August 2018.

…

Q: So the sole dispute is that the items were said to be replaced but you found it was not. What’s your basis? A: We have the post-survey photographs in our system and we found that these parts were not replaced…

…

Q: We don’t know who is Lim and we don’t have any report by him. Do you agree? A: Yes.

…

Q: Main issue is you discounted multiple items on basis that they were not replaced. You say you have photographs to show they were not repaired or replaced – please explain to the court how you conclude they were not replaced? A: Photographs from Lim were not tendered in my report. I can submit if the court requires me to do so.

…

A: Actually in my view counsel is trying to be difficult. I already explained that I referred to Lim’s photographs and I said that the photographs are not in the report. I can tender all the photographs. They are not in this SJE report.

…

Q: Because we don’t have the photos, we cannot tell if these items were replaced or not. A: Yes.

[Emphasis added]

The final aspect of the SJE’s evidence worth highlighting is that in the course of being cross-examined by the Plaintiff’s lawyer, the SJE suggested, on his own initiative and for the first time in these proceedings, that the Vehicle was in fact a constructive total loss:¹⁹ Q: So the sole dispute is that the items were said to be replaced but you found it was not. What’s your basis? A: We have the post-survey photographs in our system and we found that these parts were not replaced. Before preparing this report, we found market value of this bike is $9,500 and the COE rebate value is $4500. So net loss is...