Chi Jau alias Er Ah Jau v Lee Kok Bing (trading under the name of Lee Kok Bing Building Construction) and Another

• Jurisdiction: Singapore
• Judge: Judith Prakash JC
• Judgment Date: 01 July 1992
• Neutral Citation: [1992] SGHC 181
• Court: High Court (Singapore)
• Published date: 21 September 2012
• Year: 1992
• Plaintiff Counsel: Leong Wai Yin (Leong & Gay)
• Defendant Counsel: Martin Lee with Celine Teo (Goh Poh & Partners)
• Citation: [1992] SGHC 181

Judgment:

Coram: Judith Prakash JC

Cur Adv Vult

JUDGMENT

This is an assessment of the damages which the plaintiff has sustained as a result of an accident which occurred at his work place on 11 July 1986.

When the trial commenced on 23 June 1992, I was informed by counsel that the liability issue had been resolved. The first and second defendants had accepted two-thirds of the liability and the plaintiff the remaining one-third. The trial therefore proceeded on the question of quantum of damages only.

The background

The plaintiff, a Malaysian citizen, was in July 1986 working as a construction site carpenter at the MRT work site at Avenue 8 Ang Mo Kio. The main contractor at the site was the second defendant and the first defendant was a sub contractor. The plaintiff was employed by the first defendant and held a work permit issued in respect of this employment. His work permit was valid from 19 October 1985 to 18 October 1987.

The MRT work at this site involved the erection of an overhead viaduct. As a site carpenter, the plaintiff prepared rough wooden moulds which were used as form work for concrete. The plaintiff would make the form work on the ground and when it was ready he and other workers would lift it up to the area where the concrete was to be poured. The form work was then placed against the metal work and aligned. Thereafter cement was poured into the form work and when it had set, the plaintiff and other workers would remove the form work. The plaintiff's work necessarily involved frequent climbing and carrying of heavy objects.

On the day in question, in the course of his work, the plaintiff fell from the work platform to the ground below, a distance of five metres. He was taken to the Toa Payoh Hospital for treatment.

The injuries On admission to hospital, the plaintiff was found to have sustained the following injuries:

1. comminuted fracture of the upper third of the right humerus (just below the shoulder) 2. open condylar fracture of the right humerus (wound above right elbow) 3. fracture of right olecranon 4. uncomplicated fractures in the right 8th and 11th ribs 5. uncomplicated fracture of L4 transverse process.

Wound debridment was performed on the same day for the open fracture site. The fractures were at first treated conservatively. On 23 July 1986 the fractures in his right arm were reduced and fixed operatively as follows:

1. plate and screws for the fracture for the humeral shaft 2. k-wiring for the condylar fracture 3. k-wiring and tension banding of the olecranon fracture.

Immediate postoperative recovery was good and he was discharged on 29 July 1986.

The plaintiff's progress on follow up was uneventful. The k-wires for the condylar fracture were removed on 20 November 1986. X-rays taken then showed fracture union. On 10 July 1987 the plaintiff underwent another operation, this time to remove the implants from the right humerus and the olecranon.

According to the medical certificates produced at the trial, the plaintiff was given medical leave for the period 11 July 1986 up to 11 May 1987 and for the further period of 9 July 1987 to 24 August 1987. His last review prior to 1992 took place on 17 September 1987.

On 8 May 1992, the plaintiff went back to the Toa Payoh Hospital for a specialist review for the purpose of this case. He was seen by Dr Lam Khee Sian, Senior Registrar, Department of Orthopaedic Surgery, who had treated the plaintiff since his first admission to hospital. Dr Lam investigated the plaintiff's complaints and confirmed the following:

1. the plaintiff had pain in his back especially when bending, doing strenuous work and on rainy days. The complaint is a common complaint of patients who have back injuries. 2. the plaintiff was unable to carry heavy objects because of pain in the right arm. 3. the plaintiff had a restriction of movement in his right elbow and was not able to flex the elbow completely. 4. the plaintiff's complaint that he had difficulty climbing up and down ladders was, in Dr Lam's view, a logical consequence of the severity of his injury. It was due to stiffness of the shoulder and weakness of the elbow. 5. the plaintiff's work efficiency was reduced and he could not do prolonged work.

In the doctor's opinion, it was reasonable that the plaintiff did not go back to work for two years after the accident as the multiple injuries sustained were severe. He recommended that the plaintiff be given work of a lighter nature which does not require working at heights or climbing up or down ladders. He stated that the plaintiff's working efficiency and capacity had been affected by the accident. Dr Lam assessed the overall reduction in the plaintiff's working ability as being 24%. This percentage was based on the guidelines in the Workmen's Compensation Guide.

Dr Lam also testified that the plaintiff has degenerative osteoarthritis of his right elbow due to the trauma. This condition will affect his working capacity and efficiency especially as the plaintiff is right-handed. It is not curable and will get worse whenever he does strenuous work.

The plaintiff himself testified that he has not fully recovered from the accident. He still has pain in his back. He has no strength in his right arm and cannot move it as flexibly as before the accident. Whenever he goes up and down ladders he pants and feels pain in the right side of his body. The plaintiff further asserted that he is no longer able to undertake the heavy manual work involved in his previous employment.

Present employment

A year after the accident had taken place, the plaintiff tried to resume his employment as a construction site carpenter. He was unable to meet the demands of the work so instead he returned home to Johore. He now lives in Muar.

When he first returned home, the plaintiff found a job knocking open cocoa pods. That was the lightest work he could find. He earned MR4 - 5 a day. Subsequently he obtained employment in renovation work. His initial pay was MR30 a day but thereafter it rose to MR40 a day. He still holds this job. It involves cutting cardboard boards for ceiling and wall panels. The plaintiff works in a team of three. He cuts the boards and his co-workers affix them to the walls and ceilings.

The plaintiff testified that he had been working in Singapore in the construction industry since 1971. He was not however able to produce any documentary evidence of this assertion. By the time of the accident, he was earning $48.13 a day including overtime. This came to $1,251.38 per month (using a month of 26 days). He said that it was normal for him to work overtime on every working day. He was also entitled to CPF contributions from his employer at the rate of 10%. His testimony on his earnings at that time was corroborated by the evidence of Cheng Wee Jern, a supplier of labour who had arranged the plaintiff's employment with the first defendant.

The plaintiff also asserted that if it had not been for the accident, he would still be working in Singapore as a construction site carpenter and would be earning S$60 - S$70 a day inclusive of overtime. Mr Cheng's evidence on this point was that on current wages, in this job the plaintiff would earn S$60 a day inclusive of overtime. It is perhaps fortunate for the plaintiff that Mr Cheng was called by the defence to give evidence, as otherwise the plaintiff would have had to rely soley on his own hearsay testimony on the present wage environment for construction workers.

Damages for injuries, pain and suffering and loss of amenities On this aspect, I was cited a plethora of authorities. The case citations are set out in the Appendix to this judgment. I have considered these authorities carefully in making the awards that follow but I wish to refer specifically to only one case.

I derived assistance from the principles enunciated by Yong Pung How, J (as he then was) in Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors < 1990 > 3 MLJ 144. At page 146, the learned judge said:

"In assessing damages, a court may either adopt a global approach and award a total amount to cover all injuries and claims; or a component approach and award separate amounts for each head of damage, which are then totalled; or even a mixed approach and award separate amounts for each head of damage which are then totalled and matched against a global award........ ....In my opinion, which approach is to be followed in each case must necessarily depend on the facts of the case, bearing in mind the need to avoid overlapping. When the injuries sustained are related to the same...