Chong Hwa Wee (by his Committee of Person and Estate, Chong Hwa Yin) v Estate of Loh Hon Fock, deceased

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 11 May 2006
• Neutral Citation: [2006] SGHC 79
• Docket Number: Suit No 416 of 2004 (Registrar's
• Date: 11 May 2006
• Published date: 11 May 2006
• Year: 2006
• Plaintiff Counsel: Namasivayam Srinivasan (Hoh Law Corporation)
• Citation: [2006] SGHC 79
• Defendant Counsel: Pavan Kumar Ratty (P K Ratty & Partners)
• Court: High Court (Singapore)
• Subject Matter: Damages,Personal injuries cases,Circumstances under which loss of earnings of third party in caring for injured plaintiff may be claimed as damages,Measure of damages,Appropriate measure of damages for debilitated but fully-conscious plaintiff,Whether loss of amenities and damages for future care forming part of damages for pain and suffering

11 May 2006

Choo Han Teck J:

1 This was an appeal by the plaintiff against the award of damages made by Assistant Registrar Low Siew Ling on 21 February 2006. I dismissed the appeal on 24 March 2006. The plaintiff now appeals against my decision. The defendant had cross-appealed against Miss Low’s decision. I dismissed his cross-appeal except for one item, namely, the claim by the plaintiff’s mother for her loss of earnings assessed by Miss Low to be $7,048.48. The defendant has not appealed against my decision. The following grounds are, therefore, in respect of the plaintiff’s appeal only.

2 On 22 January 2003, the plaintiff was riding pillion on the defendant’s motorcycle when the defendant crashed into the rear of a motor lorry. The defendant died and the plaintiff suffered serious injuries. On 24 November 2004, the trial judge gave judgment in favour of the plaintiff. The trial judge also made no finding of contributory negligence on the part of the plaintiff. The plaintiff suffered two fractures of the skull and occipital bone, and as a result of the injury to his skull, suffered brain injury from which he continues to labour under a severe disability. He is unable to speak and can only write some words, very slowly, like his name. The plaintiff was dissatisfied with my dismissal of the following four items:

(a) his appeal to increase the sum of $120,000 awarded to him in respect of his head injuries;

(b) his appeal for future medical expenses consisting of future physiotherapy ($60,000), future epilepsy ($96,000) and cost of surgery for shunt revision ($10,000) amounting to a total of $166,600;

(c) his claim for his mother’s loss of income in having to look after him during the pre-trial period; and

(d) the costs of his appeal which I fixed at $1,000.

3 In respect of the damages for pain and suffering, the plaintiff sought an award of $200,000 whereas the defendant argued in his cross-appeal that it ought to have been $90,000. The plaintiff had also sought a separate award for scars. However, the assistant registrar made a global award that included the claim for the scars because she accepted that the scars were not caused directly by the accident but were surgical scars. The plaintiff’s claim for $200,000 for pain and suffering in respect of his head injury was made mainly in reliance on Toon Chee Meng Eddie v Yeap Chin Hon [1993] 2 SLR 536 (“Eddie Toon”) in which the court ordered damages of $160,000. Counsel submitted that the present case was more severe than Eddie Toon’s, but the assistant registrar did not think so, and I am in agreement with her. Counsel conceded to the observation made by the assistant registrar below that in Eddie Toon the plaintiff there proved that he was likely to suffer from post-traumatic epilepsy whereas the plaintiff here had not. Although the plaintiff’s medical expert, Dr Ho King Hee (“Dr Ho”) deposed that there was a significant risk of post-traumatic epilepsy, he clarified under cross-examination that the risk was highest in the first two years from the accident. In the present case, he examined the plaintiff 32 months after the event and noted no indication of post-traumatic epilepsy. In his oral testimony before the assistant registrar, Dr Ho revised his estimation of the likelihood of the plaintiff developing post-traumatic epilepsy, from 5–50%, to 5–20%, and so, the assistant registrar also declined to make an award for post-traumatic medical expenses. The main point made by Mr Srinivasan before me so far as the damages for pain and suffering were concerned, was that even without suffering any post-traumatic epilepsy, the plaintiff in the present case is “living the life of a quadriplegic” even though he is, technically, not one. Mr Srinivasan further argued that, by comparison, the plaintiff in TV Media Pte Ltd v De Cruz Andrea Heidi [2004] 3 SLR 543 (“De Cruz Andrea”) was awarded $150,000 for pain and suffering in respect of the damage to her liver due to her consumption of a product promoted by the defendants. Counsel submitted that the plaintiff there could live normally and tend to her daily needs whereas the plaintiff here has to lead the life of a quadriplegic.

4 Let me consider, first, Eddie Toon. The plaintiff there filed an appeal to the Court of Appeal but there was no record that he went ahead with the appeal. Eddie Toon was about seven years old when he was knocked over by a motor car driven by the defendant. The boy suffered severe injuries including head injuries that required emergency surgery to remove blood clots from the brain. Then he developed a lung infection and another operation was performed the next day and ventriculo-peritoneal shunting was inserted to relieve fluid pressure in his brain as well as abdominal cavity. The surgeries did not help him much and he “remained retarded, his limbs were spastic and rigid. He was unable to talk, unable to call for toilet needs, but was able to swallow when fed”. The difference between the condition of Eddie Toon and the present plaintiff was that Eddie Toon could not move his limbs whereas the plaintiff could, although weakly. The medical evidence showed that there was not much improvement when he was assessed a year later.

5 The more severe the injury, the more difficult it becomes to place a monetary value to it. In cases such as Eddie Toon and the present, we can, perhaps, agree that only a sum so low as $10,000 would be thought paltry and insufficient, and although one might readily agree that a sum of, say, $10,000,000 would be satisfactory, one would, nonetheless, hesitate to conclude that that would be the “correct”, or even fair, compensation for the pain and suffering the injured endured. It is also relevant to note that compensation for pain and suffering is predominantly the compensation for the pain and suffering endured while it lasts. What sort of pain is felt and how long that lasts depends on the facts of each case. That is why it is artificial to treat loss of amenities as a separate head from pain and suffering. Hence, a person who is brain dead feels no pain, while a quadriplegic, who is fully alert, suffers the pain and frustration of a life without participation, and such a pain is not only of the deepest, it also lasts as long as...