Eng Beng v Lo Kok Jong

• Judge: Jill Tan Li Ching
• Judgment Date: 15 September 2022
• Neutral Citation: [2022] SGDC 214
• Citation: [2022] SGDC 214
• Court: District Court (Singapore)
• Published date: 21 October 2022
• Docket Number: District Court Suit No 1467 of 2020, Registrar’s Appeal No 55 of 2022, HC/RAS 30/2022
• Plaintiff Counsel: VM Vidthiya (Hoh Law Corporation)
• Defendant Counsel: Khaira Akramjeet Singh and Mark Cheng Wei Chin (Legal Solutions LLC)
• Subject Matter: Damages,Rules in awarding
• Hearing Date: 29 July 2022,23 August 2022

District Judge Jill Tan Li Ching:

This was a Registrar’s Appeal against the decision of the Deputy Registrar (“DR”) concerning the award of damages to the victim of a road traffic accident. The appeal raised the question of whether an accident victim who had a substantial portion of her medical expenses covered by government subsidies could nevertheless claim for the subsidised amounts against the tortfeasor, on the ground that the receipt of such government subsidies should be recognised as a new exception to the general rule against double recovery. The appellant asked this court to answer this question in the affirmative, based on a pronouncement by Justice of the Appellate Division Belinda Ang in Noor Azlin bin Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] SGHC 10 (“Noor Azlin (HC)”). I answered the question in the negative, affirmed the DR’s decision, and dismissed the appeal. These are the grounds of my decision.

Before considering the ambit of the pronouncement by Ang JAD and the question posed in the appeal, I noted the undisputed facts and applicable legal principles.

Facts

On 9 January 2020, the appellant, aged 81, was crossing a road when she was hit by a vehicle driven by the respondent. She was hospitalised for the injuries she suffered, the most serious of which was a right ankle trimalleolar closed fracture.

Her lawsuit against the respondent claiming for general and special damages on account of his negligence was filed in June 2020. In May 2021, interlocutory judgment was entered against the respondent by consent for 85% of the damages to be assessed. After the assessment of damages hearing, the DR awarded damages totalling $36,348.64. The general damages awarded for pain and suffering were $18,600, while the special damages were for medical expenses, transport expenses, and medical apparatus. Under the head of medical expenses, the DR awarded $411.30 for amounts paid by the appellant in cash, $5,834.92 for amounts paid through her Medisave account, and $11,221.63 for amounts paid through Medishield payouts.¹ In doing so, the DR declined to grant a claim for $39,515.08, which comprised government subsidies and grants. These were: Generic government subsidies of $19,211.57; Pioneer Generation (“PG”) subsidies of $148.88; and Government grants for Community Hospital Services and medical drugs (“community grants”), of $20,155.16.²

The appeal was only against the decision on these three items, hereinafter referred to collectively as “Subsidies and Grants”.

Applicable Legal Principles

The relevant case law and general principles were not disputed by parties. It was on the application of the principles that they disagreed.

The starting point was the general rule that a victim cannot recover more by way of damages than the amount of her actual loss. Damages are thus compensatory and seek to put the victim in the same position as far as possible, as if the tort had not been committed. Put another way, prima facie, the only loss recoverable is the victim’s net loss. Thus, in The “MARA” [2000] 3 SLR(R) 31 at [26], the Court of Appeal held that:

“The basic rule is that damages in negligence are purely compensatory, and in assessing damages for the loss the injured plaintiff has sustained, any gain which is received by him, which he would not have but for the injury, prima facie will be taken into account. In Hussain v New Taplow Paper Mills Ltd [1998] AC 514 at 527, Lord Bridge of Harwich said: [P]rima facie the only recoverable loss is the net loss….””

In the same vein, the High Court held in Lo Lee Len v Grand Interior Renovation Works Pte Ltd and others [2004] 2 SLR(R) 1 (“Lo Lee Len”) at [12] as follows:

“The object of an award of damages is to place the injured party as nearly as possible in the same financial position as he would have been in but for the accident. The basic rule is that the [injured party] cannot recover more by way of damages than the amount of his actual loss. If a collateral benefit compensates for the same loss, it must be taken into account in determining the actual level of compensation required through an award of damages. The consideration here is about the deduction of compensation advantages or benefits which a plaintiff enjoyed as a result of the breach.”

This has been referred to as the rule against double recovery, or the doctrine of collateral benefits, and either expression may be used herein as the context requires.

However, there are two well-established exceptions to this general rule – they were referred to by the DR in his Grounds of Decision (“DR’s GD”) as the “insurance exception” and the “benevolence exception”, and I adopted the same terminology. The insurance exception applies where a plaintiff recovers any moneys under an insurance policy for which he has paid the premiums – in that case, the insurance moneys are not deductible from damages payable by the tortfeasor (see The “MARA” at [28], from Bradburn v GreatWestern Rly Co (1874) LR 10 Exch 1, as affirmed in Minichit Bunhom v Jazali bin Kastari [2018] 1 SLR 1037 (“Minichit Bunhom”) at [84]). The benevolence exception applies where the plaintiff receives money or charitable gifts from the benevolence of third parties prompted by sympathy for his misfortune, as in the case of a beneficiary from a disaster fund – the amount received is similarly not deductible from damages payable by the tortfeasor (see The “MARA” at [28], from Redpath v Belfast and County Down Railway [1947] NI 167, as affirmed in Minichit Bunhom at [84]; see also Lo Lee Len at [12]).

On this point, our courts have had regard to the pronouncements by the High Court of Australia in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 (“Espagne”). As noted by the Court of Appeal in The “MARA” at [32], Dixon CJ stated in Espagne that:

“There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of a contract or of benevolence, which have an additional characteristic… namely ... they are a product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him.” (emphases added)

Similarly, Widmeyer J stated in Espagne that:

“In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers … The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause.” (emphases added)

The Court of Appeal in Minichit Bunhom (at [83]), citing McGregor on Damages, also noted that moneys paid out under an insurance policy are generally not deductible from the plaintiff’s claim because “even if in the result the [plaintiff] may be compensated beyond his loss, he has paid for the accident insurance with his own moneys, and the fruits of this thrift and foresight should in fairness enure to his and not to the defendant’s advantage”.

Thus, the principles underlying these exceptions to the general rule against double recovery may be summarised as follows: In the insurance exception, the plaintiff has paid his premiums under his insurance contract, and if he is entitled to his payout independently of any compensation he might receive from the tortfeasor, then it will not go towards reducing the amount he can claim from the tortfeasor. This means that even though the plaintiff may be compensated beyond his loss, he should not be deprived of this advantage, since he has paid for the accident insurance with his own money and should reap the fruits of his thrift and foresight. In the benevolence exception, the money was given with a charitable intent and was meant for the plaintiff’s retention, so it also should not go towards reducing the amount he can claim from the tortfeasor. Where a plaintiff receives money for his injury which was intended for his enjoyment and was not provided to relieve the tortfeasor of liability to compensate him, then that money need not be deducted from the amount he can claim against the tortfeasor. In other words, if the plaintiff receives money by way of general aid, subventions, or hospital benefits, that do not have such an additional characteristic, then the receipt of money does not fall under the existing exceptions and must be deducted from the amount he can claim. In short, it is the character and the purpose of that payment that will determine whether it constitutes an exception to the rule against double...