Deputy Registrar Kim Bum Soo:
The Plaintiff (“Eng”) was the victim of a car accident. Eng was crossing the road when the Defendant’s (“Lo”) car collided into her. She suffered from some injuries, was hospitalised and has now come seeking compensation. The trouble is, she has sought a startling amount of compensation. Medical expenses wise, she claims some $57,000 even though she has paid less than $500 out of her own pocket. The rest were covered by assorted government schemes and subsidies. There was no mention at the hearing of any intention to return any money (if successfully claimed) to the relevant government agencies.
The thorniest issue before me, therefore, is whether a plaintiff can recover in damages medical expenses that were paid out through government schemes and subsidies. The answer, in short, is that it depends on the type and nature of the government scheme/subsidy. I explain below.
Issues to be determined
Broadly, there are three main issues: General damages - what would be the appropriate quantum of damages for Eng’s pain and suffering, arising from her injuries? Special damages – what would be the appropriate quantum of damages for medical expenses incurred that were paid for by government subsidies? Special damages – what would be appropriate quantum of damages for medical expenses incurred that were paid for by Eng’s MediShield Life payouts?
Beyond this, there were some miscellaneous items which Lo claimed had not been adequately proven by Eng. These are fairly small contentions involving small-ticket items which I will address in the course of dealing with the main issues.
Executive summary
In brief, I award the following sums:
| |
|
|
| S/N | Item | Award |
| GENERAL DAMAGES |
| Pain and Suffering | |
| 1 | Right ankle trimalleolar fracture | $18,000 |
| 2 | Mild abrasions | $600 |
| SPECIAL DAMAGES |
| Medical Expenses | |
| 3 | Paid by Eng in Cash | $411.3 |
| 4 | Paid through Eng’s MediSave | $5,834.92 |
| 5 | Paid through MediShield payouts | $11,221.63 |
| Transport Expenses | |
| 6 | To and from Medical establishments | $205 |
| Medical apparatus | |
| 7 | Blood Pressure Machine | $64.90 |
| 8 | Stainless Steel Shower Chair | $10.89 |
| Total: | $36,348.64 |
General Damages
Pain and Suffering – Right ankle trimalleolar fracture
Upon arrival at the hospital after the accident, Eng was diagnosed with a closed trimalleolar fracture of her right ankle. During her first inpatient stay at the hospital, she developed some medical complications (abdominal bloating and acute urinary retention) but those were respectively resolved with omeprazole/antacids and the insertion of a urinary catheter. Treatment wise, Eng had three surgeries: the first, an external fixation (9 January 2020); the second, a reinforcement of the aircast boot she was given to wear (24 February 2020); and third, a revision fixation and iliac crest bone graft(24 September 2020). Following the final surgery, she made an “uneventful recovery” but required a wheelchair as she had been advised not to apply weight on her right lower limb. Her latest check-up was on 18 December 2020, but there was no report disclosed about her latest medical check-up.
For her pain and suffering in relation to this injury, Eng sought $30,000 as damages, while Lo contended that $14,500 was a far more reasonable figure. I reject both parties’ submissions and award $18,000.
The starting point involves identifying which band of severity the particular injury falls under. For ankle injuries, the Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”) lists the following descriptions for “severe” and “moderate” injuries at p 52:
| |
|
| (b) Severe Complicated fracture of the ankle that requires a long and extensive period of treatment (including physiotherapy) and recovery. There is significant residual disability involving reduced ankle mobility and instability on a permanent basis. An award in the higher range is appropriate where complications arise during the recovery period, eg, malunion, infection, etc. | $20,000 - $33,500 |
| (b) Moderate Cases in this category include simple fracture of the ankle and/or tears of the ankle ligament. However, there is substantial recovery and the person is able to function in his pre-trauma employment capacity and also engage in less strenuous sporting activities after sufficient physiotherapy for a period of time. (emphases mine) | $10,000 - $20,000 |
Eng’s injury could not have fallen under the “severe” band. There was no mention in the medical reports about any sort of residual disability or instability, much less significant disabilities on a permanent basis. The period of recovery, while not short, was not “extensive” either. And although she experienced some further displacement in the fracture, Eng eventually achieved full recovery at the latest, by 12 October 2020 (“Her wounds were all healed and radiographs were satisfactory”). In the circumstances, Eng’s injuries could not fall under the “severe” band stated in the Guidelines, much less warrant a $30,000 award in damages – the higher end of that band.
The only precedents cited by Eng did not assist her case at all. Goh Eng Hong v Management Corporation of Textile Centre and another [2000] SGHC 97 involved a $40,000 award of damages for pain and suffering. But that was a sum awarded for all of the plaintiff’s lower limb injuries. It is not clear how much of this was in relation to the fracture of the medial malleolus of left ankle. The precedential value of this authority is dubious at best. Chian Lian Seng v Hassan Bin Sanib (DC Suit No. 2578 of 2009/RA No. 147 of 2012) (as cited in the Practitioners’ Library – Assessment of Damages: Personal Injuries and Fatal Accidents (LexisNexis, 3rd Ed, 2017) (“Practitioners’ Library”) at p 744) involved a $12,000 award for pain and suffering associated with a closed right fibula/ankle fracture. This authority betrays Eng almost immediately. The type of injury is similar to Eng’s. The type of treatment procedure (multiple external fixations) is similar to Eng’s as well. And yet, only $12,000 was awarded. If anything, this authority damages Eng’s case. Indeed, it was held that such an injury was only a “moderate ankle injury”, despite the fact that the plaintiff there was on crutches for “several months”.
To my knowledge, the only authority to have awarded $30,000 for an ankle fracture is Lim Jun Kai (Lin Jun Kai) v Orientus Country Clubs & Resorts Pte Ltd (DC Suit No 1010 of 2011) (“Lim Jun Kai”): Practitioners’ Library at p 741. But that was clearly a case involving far more serious injuries. For one, the plaintiff there had “severe open bimalleolar fracture of right ankle” and was also, as a result of the accident, predisposed to osteoarthritis. That is not the case with Eng. The treatment procedures in that case were far more extensive as well. Besides “several operations to stabilise the fracture […] including internal fixation”, the plaintiff also underwent a gracilis flap surgery. And it appeared that the plaintiff suffered residual disabilities in the form of “stiffness, occasional swelling and pain” – a far cry from the lack of any medical evidence suggesting any form of residual disability on Eng’s part.
In further submissions, Eng accepted that Lim Jun Kai involved far more invasive treatment procedures, but argued that the trimalleolar fracture here should be regarded as a more severe injury than the bimalleolar fracture in Lim Jun Kai. That, according to Eng, sufficed to justify a $30,000 award in damages notwithstanding the clear differences in treatment procedures, and residual disabilities. But I am not sure whether a trimalleolar fracture is necessarily more severe than a bimalleolar fracture, and am not prepared to speculate absent any medical evidence. Indeed, there was no medical evidence led at the hearing (save for the medical reports exhibited in Eng’s AEIC) since the parties agreed to dispense with the attendance of the medical experts. In the circumstances, I simply cannot accept Eng’s invitation for me to rely on Lim Jun Kai or her proposal of $30,000 for damages.
That said, Lo’s proposal of $14,500 was too low as well. That is the sort of damages awarded for ankle fractures treated with relatively straightforward procedures such as: open reductions and internal fixations ($14,000 award in Goh Feng Ji Mervin (an infant, suing by his father and next friend Goh Lip Ming) v Yeo Tze Phern (DC Suit No 1686 of 1999), listed at p 748 of the Practitioners’ Library) (“Melvin Goh”); or simple application of casts ($13,000 award in Li Hong Jing v Ng Cheng Huang & Anor (MC Suit No 13712 of 2003), listed at p 747 of the Practitioners’ Library) (“Li Hong Jing”).
When invited to submit on the cases listed above at [13], Lo argued that these are simply unreported cases (without full, meaningful accompanying details) and should be treated with caution. True as that may be, there must be some consistency within the law, and I am inclined to take reference from what authorities are available. Indeed, the Practitioner’s Library is of no less value than the Guidelines - an authority which Lo himself has relied on extensively. As stated earlier, $14,500 would be too low an estimation of Eng’s pain and suffering here.
Indeed, Eng’s road to recovery was far more tedious and far more drawn out than Melvin Goh or Li Hong Jing. She underwent three separate surgeries, each no doubt more frustrating than the last. She was wheelchair bound (at least temporarily) after her last surgery, such no doubt being an emasculating experience in its own way. And any of Lo’s suggestions that Eng was responsible for her own misfortunes (...
