Clark Jonathan Michael v Lee Khee Chung

• Court: High Court (Singapore)
• Judge: Judith Prakash J
• Judgment Date: 15 September 2009
• Neutral Citation: [2009] SGHC 204
• Citation: [2009] SGHC 204
• Defendant Counsel: Ramesh Appoo (Just Law LLC)
• Plaintiff Counsel: Lee Yuk Lan (Benedict Chan & Company)
• Published date: 28 September 2009
• Docket Number: Suit No 698 of 2005 (Registrar's Appeals Nos 306 of 2008 and 311 of 2008)
• Date: 15 September 2009
• Subject Matter: Assessment,Damages

15 September 2009 Judgment reserved.

Judith Prakash J:

Introduction

1 On 7 October 2002, the plaintiff was injured in a collision between his motor vehicle and the defendant’s motor vehicle. His claim against the defendant for damages resulted, in 2006, in an interlocutory judgment against the defendant on the basis that the defendant was solely responsible for the accident. The assessment of damages took place before the Assistant Registrar, Jason Chan (“the AR”).

2 The AR made the following awards in favour of the plaintiff:

General Damages
i.	pain and suffering and loss of amenities	)
ii.	losses due to one year delay in graduation	) $25,000
iii.	contingent losses’	)
Special Damages
iv.	General medical expenses	$1,808.90
v.	Medical expenses for osteopathic and; ayurvedic treatment	Disallowed
vi.	Medical expenses incurred in Australia	$500
vii.	Expenses for physician prescribed medications	$1,800
viii.	Expenses for physician prescribed services; and equipment	$850
ix.	Expenses for transportation	$2,000
x.	Future medical expenses	Disallowed
xi.	Pre-trial loss of income	Disallowed
xii.	Loss of future earnings	Disallowed
xiii.	Loss of earning capacity	$35,000
	Total	$66,958.90

3 Neither party was wholly satisfied with the award. Whilst the defendant appealed against the awards in respect of “pain and suffering and loss of amenities” and “loss of earning capacity”, the plaintiff’s appeal was more wide ranging. He appealed against the award for general damages and, in respect of the award for special damages, he wanted items v, vi, vii, viii, ix, x, xi, xii and xiii to either be revised upwards in his favour or awarded to him. It should be noted that the plaintiff had originally quantified his claim at a sum that was in excess of $460,000.

The facts

4 The plaintiff is a citizen of the United States of America. He was born in January 1956 and therefore, at the time of the accident, he was 46 years old. The plaintiff is married to a Singaporean. In 1998, he had left his job as a management consultant with a Singapore accounting firm and thereafter he had no paid employment for over three years. Subsequently, he enrolled in a 4-semester accelerated Bachelor of Nursing Science programme at the University of Melbourne, Australia. At the time of the accident, he was in Singapore on holiday after having completed the first two semesters of the programme.

5 The plaintiff saw several doctors and other healing practitioners in the days and months after the accident. The details of these treatments were set out extensively in his affidavit and I do not propose to repeat them here. For clarity, however, a short summary of the same follows.

DATE	INCIDENT
7 October 2002	The defendant’s lorry crashed into the plaintiff’s car along Ang Mo Kio Avenue 5. The plaintiff’s car was rendered a total loss. The plaintiff declined to leave with the ambulance crew that arrived at the accident scene. Instead, the plaintiff was taken by his wife to Dr Phoon Chiong Fook (“Dr Phoon”), his family doctor. Dr Phoon prescribed five days worth of Ponstan.
9 October 2002	The plaintiff’s second visit to Dr Phoon. Dr Phoon sent the plaintiff to East Shore Hospital for an x-ray.
11 October 2002	The plaintiff returned to see Dr Phoon. Dr Phoon agreed, at the plaintiff’s suggestion, that the plaintiff should see Mr Phillipe Steiner (“Mr Steiner”), a physiotherapist, for treatment.
11 October 2002 –; 25 October 2002	The plaintiff went to Mr Steiner’s clinic for treatment on five different occasions. On the first three occasions, the plaintiff was treated by Mr Steiner’s assistant and the last two times by Mr Steiner himself. The plaintiff unilaterally decided to discontinue these visits.
22 October 2002	The plaintiff saw Dr Phoon for the fourth time after the accident. Dr Phoon prescribed five days worth of Ponstan.
3 November 2002	The plaintiff saw Dr Phoon for the fifth time. At the plaintiff’s suggestion, Dr Phoon agreed that the plaintiff should see Dr Wong Merng Koon (“Dr Wong”), Senior Consultant Orthopaedic Surgeon and Co-Director of the Trauma Service at Singapore General Hospital (“SGH”).
13 November 2002	The plaintiff visited Dr Lopez Rodriguez Eufemio (“Dr Lopez”) for the first time to seek osteopathic treatment. The plaintiff continues to see Dr Lopez for treatment.
18 November 2002 –; 26 January 2004	The plaintiff visited Dr Wong on ten different occasions during this period. From then onwards, Dr Wong co-ordinated the plaintiff’s care. Dr Wong also referred the plaintiff to a few other specialists in SGH.
25 November 2002 –; 30 December 2002	The plaintiff attended six physiotherapy sessions during this period. The plaintiff found them unhelpful.
18 December 2002,; 12 March 2003 and; 15 September 2003	The plaintiff visited Dr Tan Nam Guan (“Dr Tan”), a Senior Consultant ENT Surgeon, on these dates for management of the plaintiff’s alleged tinnitus.
19 February 2003,; 19 March 2003 and; 4 August 2003	The plaintiff visited Dr Lim Shih Hui (“Dr Lim”), Chief of Service at SGH’s Neurology Department, on these dates for management of the plaintiff’s alleged headache.
19 February 2003 –; 4 April 2003	The plaintiff was treated by Dr Cui Shu Li at SGH’s Acupuncture Unit.
8 July 2003	The plaintiff first consulted with Dr Yeo Sow Nam (“Dr Yeo”) on this date. Dr Yeo is Director of the Pain Management Program and Consultant Pain Specialist at SGH. The plaintiff continues to see Dr Yeo.
12 August 2003	The plaintiff visited Ms Esther Tan, a psychologist, to learn cognitive behaviour therapy.
6 October 2003	The plaintiff consulted with Dr Chan Yew Meng (“Dr Chan”), a specialist in tinnitus.
21 October 2003 –; 17 December 2003	The plaintiff admitted himself into Samajam Ayurvedic Hospital and Nursing Home in India to seek Ayurvedic treatment from Dr K Sasidharan (“Dr Sasidharan”)
February 2004	The plaintiff left for Australia to resume his Nursing Science programme at the University of Melbourne.
March 2004	The plaintiff commenced semester 3 of the Nursing Science programme.
November 2004	The plaintiff graduated from the University of Melbourne with a degree in Nursing Science.
December 2004	The plaintiff applied to several hospitals for a job and returned to Singapore to await a response.
January 2005	The plaintiff was offered a job at the Melbourne Clinic.
June 2005	The plaintiff began work at the Melbourne Clinic.

The appeal

6 The appeal focussed on the AR’s reasons for the various awards that he had made and I will discuss these at the same time as I deal with the various arguments put forward as to why the awards should be increased (plaintiff) or decreased (defendant). It is worth reminding myself, however, that as an appellate court, I must be slow to disturb the AR’s findings of fact unless they are plainly wrong or against the weight of the evidence: see Ngiam Kong Seng v Lim Chiew Hock [2008] 3 SLR 674. Where a trial judge’s finding of fact was based on his observation and assessment of the witnesses, the appellate court is constrained in its review because the trial judge is presumed to be better placed and to have had the benefit of assessing the veracity and credibility of witnesses in court: see PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR 601 However, where the trial judge’s fact finding was based on inherent probabilities or uncontroverted facts, the appellate judge is in as good a position as the court of first instance, although he must, where appropriate, give due allowance to the fact that he did not have the advantage of seeing the witnesses that the trial court had: see Peh Eng Leng v Pek Eng Leong [1996] 2 SLR 305. Therefore, the standard of proof required to show that the lower’s court findings of fact was “plainly wrong” is dependent, to a large extent, on how the lower court came to its conclusions.

Whether the AR was correct in awarding $25,000 to the plaintiff as damages for pain and suffering, loss of amenities, losses due to one year delay in graduation and contingent loss

7 The AR was satisfied on the evidence that the plaintiff had suffered a whiplash injury as a result of the accident. He considered that the plaintiff had suffered a serious neck injury that had resulted in persistent pain and stiffness of the neck, headaches and tinnitus. He had also suffered numbness in his arm. The plaintiff had submitted that $80,000 would be an appropriate sum for his pain and injury. The AR considered that this sum was excessive to the point of being unreasonable. In awarding the sum of $25,000, he stated that he took into account the stiffness, tinnitus, pain and inconvenience suffered by the plaintiff as well as his one year delay in graduation and the so called “contingent costs” claimed by the plaintiff. He also used the case of Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR 178 (“Ronnie Tan”) which he found to be a useful reference case as the facts were similar.

8 The AR did not state precisely how much was awarded for each head of damages but instead lumped four heads of damages into one award. This makes it difficult to assess the appropriateness of the award. Another difficulty is that it is not entirely clear what the AR meant by “losses due to one year delay in graduation”. The plaintiff before me did not make a claim for damages under such a head. Instead, he claimed damages for “actual lost income”, a claim which the AR had rejected entirely. The award, however, can be considered primarily as if it was an award for pain and suffering and loss of amenities as these are well known heads of damages.

9 As stated above, both parties had appealed against the quantum of this award. To ascertain whether $25,000 was an appropriate amount, it is necessary to determine the extent of the pain and suffering that the plaintiff had...