Chua Hong Keng v Poh Tiong Choon Logistics Limited and another

• Jurisdiction: Singapore
• Judge: Hairul Hakkim
• Judgment Date: 18 May 2021
• Neutral Citation: [2021] SGDC 94
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 215 of 2016, Assessment of Damages No 135 of 2018
• Year: 2021
• Published date: 01 June 2021
• Hearing Date: 29 October 2020,11 June 2020,07 February 2020,30 November 2020,13 November 2020,25 November 2020,14 May 2021,20 November 2020,29 April 2021,23 March 2021,24 December 2020,10 December 2020,16 November 2020
• Plaintiff Counsel: Viviene Kaur Sandhu and Michelle Kaur (Clifford Law LLP)
• Defendant Counsel: Fendrick Koh (Titanium Law Chambers LLC)
• Subject Matter: Damages,Measure of damages,Personal injuries cases,Quantum,Post-traumatic stress disorder,Claim for full-time caregiver
• Citation: [2021] SGDC 94

Deputy Registrar Hairul Hakkim: Introduction

Among other issues, this case poses the challenge of assessing a claim for a full-time caregiver in the presence of uncontradicted evidence that other members of the same household would also benefit from the provision of a full-time caregiver.

The plaintiff’s claim arises out of a road traffic accident (“the Accident”) that occurred on 26 May 2015. The plaintiff was travelling with seatbelt fastened as a back-seat passenger in a motorcar when it was rear-ended by a 14-feet lorry driven by the second defendant who was then driving as the first defendant’s servant and/or agent (collectively “the defendants”).

Interlocutory judgment in the plaintiff’s favour was entered by consent on 11 August 2016 with the issue of damages to be assessed and costs and interests to be reserved to the registrar hearing the assessment (“the AD Hearing”).

The plaintiff was born on 15 November 1940 and was accordingly 74 years old at the time of the Accident. As at the commencement of the AD Hearing, she was 79 years old and is now 80 years old as at the time of judgment.

Witnesses in the AD Hearing

I conducted the AD Hearing over nine tranches where the following witnesses gave their evidence in the following order: the plaintiff; Ms Lim Li Hia (“Ms Lim”) – the plaintiff’s daughter that lives with the plaintiff in the same household; Mr Alexandra Harvard-Walls – the plaintiff’s physiotherapist; Dr Ho Li Chin (“Dr Ho”) – the plaintiff’s accident and emergency doctor; Dr Ko Soo Meng (“Dr Ko”) – the plaintiff’s treating psychiatric expert; Dr Teo Yee Hong (“Dr Teo”) – the plaintiff’s orthopaedic expert doctor; Mr Tan Yien Hwee – the defendants’ private investigator (“the PI”); Dr Brian Yeo Kah Loke (“Dr Yeo”) – the defendants’ re-examining psychiatric expert; Dr Sarbjit Singh (“Dr Singh”) – the defendants’ re-examining orthopaedic expert; Ms Alexi Lau – the plaintiff’s physiotherapist; and Dr Hee Hwan Tak (“Dr Hee”) – the plaintiff’s treating orthopaedic expert.

Plaintiff’s submissions on quantum

The parties had initially agreed to the quantum for two minor heads of claim in the joint opening statement (“JOS”) as follows: minor head injuries: $1,000; and upper body injuries (pain over the left ribcage and right upper arm respectively): $1,000.

In the closing submissions, while I note that the defendants have now made arguments to the contrary in relation to both these injuries,¹ no explanation is provided by the defendants for this marked departure from the JOS. Further, and in any event, despite the plaintiff’s averment in her affidavit of evidence-in-chief (“AEIC”) to these injuries² and Dr Hee’s reference to these injuries in his specialist medical report,³ neither the plaintiff nor the relevant medical experts were cross-examined on these injuries by the defendants. In the circumstances, I award $1,000 each for these two injuries (as the plaintiff claims and as the defendants submit in the alternative to their primary submission of no award).

Additionally, the plaintiff claims for the following damages in the AD Hearing: General damages: Pain and suffering for neck injuries: $24,000; Pain and suffering for lower back injuries: $16,000; Pain and suffering for Post-Traumatic Stress Disorder (“PTSD”): $35,000; Future medical and transport expenses: $4,811.04; and Future costs of full-time caregiver: $120,243. Special damages: Medical expenses: $32,791.34; Transport expenses: $1,652.39; Costs of catered meals for one month: $198; and Costs of caregiving: $65,476.42.

As would be evident from the above and as the defendants point out,⁴ it is clear that the plaintiff’s total submissions on quantum exceed the District Court’s jurisdiction of $250,000 provided under s 19(4)(a) read with s 2 of the State Courts Act (Cap 321, 2007 Rev Ed) (“the State Courts Act”). Before me, there is no agreement to enlarge the court’s jurisdiction under s 23 of the State Courts Act. In the circumstances, even if the plaintiff is able to prove her entitlement to each claim itemised above, the maximum amount she can recover from the defendants in the AD Hearing is $250,000.

General damages Pain and suffering for neck injuries

The plaintiff claims for the following injuries to her neck based on the medical opinion of Dr Hee:⁵ whiplash injury (grade unspecified); intervertebral disc bulges at C3/4 and C4/5; aggravation of pre-existing disc prolapses at C5/6 and C6/7 aggravated by the accident with resulting spinal cord oedema from the accident; and neck pain.

For the pain and suffering for her neck injuries, the plaintiff submits for $24,000.⁶ The defendants submit instead for a sum of $7,000.⁷

In his report, Dr Singh made no mention of Dr Hee’s opinion on the plaintiff’s intervertebral disc bulges at C3/4 and C4/5 (see [10(b)] above) although Dr Hee appears to have agreed with the defendants’ counsel that such disc protrusions are not uncommon in elderly patients.⁸

In any event, it is clear from Dr Hee’s opinion that the more serious neck injuries caused by the Accident are the disc prolapses and the spinal cord oedema (see [10(c)] above).⁹ The defendants do not dispute that the cord oedema was caused by the Accident.¹⁰ It is also common ground that the spinal cord oedema had subsided by 18 June 2016.¹¹ As such, the main point of contention between Dr Hee and Dr Singh is whether the Accident had aggravated the pre-existing disc prolapses at C5/6 and C6/7.

Here, the defendants contend that there was no aggravation because the plaintiff did not suffer from any annular tear of the disc.¹² With respect, I am unable to make this finding for the following reasons. First, Dr Hee had only noted that a tear “is possible” and not that this is an inevitable result or even a likely result of aggravation of pre-existing disc prolapses.¹³ Second, Dr Hee was consistent in his opinion that the “disc prolapses at C5/6 and C6/7 are pre-existent, but the accident worsened the disc prolapses”¹⁴ and even maintained this opinion during cross-examination after he had noted that a tear “is possible” in such a case.¹⁵ Third, as between the opinions of Dr Hee and Dr Singh, I am inclined to adopt Dr Hee’s opinion as he has sound and reasoned basis for the same¹⁶ and has been the plaintiff’s treating doctor since 4 June 2015 as opposed to Dr Singh who had only seen the plaintiff once (see also Yap Boon Fong Yvonne v Wong Kok Mun Alvin [2018] SGHC 25 at [32]).

In assessing the quantum for the neck injuries, the plaintiff refers to the “Moderate” category whilst the defendants refer to the “Minor” category in Charlene Chee et al, Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”) and I reproduce the extracts of the relevant ranges below (at pp 19–20):

Description (Severity of Injury)	Range of awards
(b) Moderate (i) Severe whiplash injury classified as Grade 4 whiplash injury. There is serious limitation of neck movement, neurological deficits with recurrent pain radiating to the limbs and headaches. There is not only an increased vulnerability to future trauma but there is a high risk of developing cervical spondylosis with a possible need for cervical spine fusion surgery in the near future. (ii) Moderate whiplash injury classified as Grade 3 whiplash injury. The person suffers from considerable pain and restriction of neck movement with neurological deficits. Recovery takes a substantially longer period and there is also an increased vulnerability to future trauma. There is a likely risk of degenerative changes occurring in the long run due to the weakened cervical spine.	$15,000 to $30,000 $8,000 to $15,000
(c) Minor (i) Minor whiplash injury and soft tissue damage classified as Grade 2 whiplash injury. The symptoms take longer to resolve than in (c)(ii), ie about two years and there are residual disabilities on a long-term basis. (ii) Minor whiplash injury and soft tissue damage classified as Grade 1 whiplash injury. The symptoms of neck pain, tenderness and stiffness resolve completely between a few weeks and two years. An award in the higher range is appropriate where the symptoms take a longer time to resolve.	$7,000 to $8,000 $5,000 to $7,000

In my judgment, following my decision above that the Accident had aggravated the plaintiff’s pre-existing disc prolapses and given that the plaintiff has still been seeking treatment for her neck injuries six years after the Accident, the plaintiff’s neck injuries fall within the middle range of the “Moderate” category ((b)(ii) in the Guidelines) and I accordingly award her sum of $13,000.

Notwithstanding Dr Hee’s medical opinion that the plaintiff has a high risk of requiring cervical spine fusion surgery in the future,¹⁷ I do not find her condition to fall within the “Moderate” category (b)(i) particularly on account of her advanced age at the time of assessment. Here, it is trite that damages for pain and suffering are “awarded for both future pain and suffering as well as for what has already been endured” (see TV Media Pte Ltd v De Cruz Andrea Heidi and another appeal [2004] 3 SLR(R) 543 at [166], citing Birkett v Hayes [1982] 1 WLR 816) [emphasis added]. Given her advanced age, the plaintiff’s future pain and suffering is likely to be limited. For the same reason, as the defendants submit,¹⁸ the cases cited by the plaintiff can be distinguished as they all concerned far younger victims.

Pain and suffering for lower back injuries

The plaintiff claims for the following injuries to her lower back: aggravation of pre-existing L4/5 and L5/S1 spondylolisthesis; lower back pain; radiating pain over left groin and buttocks, left thigh, left knee pain; and aggravation of chronic osteoarthritis in left...