Fu Yik Min v Khoo Kim Thong

• Jurisdiction: Singapore
• Judge: Irene Wu Wei Ling
• Judgment Date: 03 May 2004
• Neutral Citation: [2004] SGDC 110
• Court: District Court (Singapore)
• Published date: 13 May 2004
• Year: 2004
• Plaintiff Counsel: Suchitra Ragupathy (Rodyk and Davidson)
• Defendant Counsel: Joseph Goh / Vincent Lim (Vincent Lim and Joseph Goh)
• Citation: [2004] SGDC 110

3 May 2004 Judgment reserved.

District Judge Irene Wu:

1 The defendant’s appeal was in respect of the following awards: (1) $7,200 for pre trial loss of earnings; (2) $50,400 for loss of future earnings; and (3) $10,000 for loss of earning capacity.

Evidence

2 It was common ground that the plaintiff, Fu Yik Min (‘Fu’), sustained the following injuries: (1) a laceration of the right forearm; (2) a laceration of the right shin and foot; and (3) fractures of the right tibia and fibula.

3 He was admitted on 30 November 1999 and discharged on 2 December 1999. Toilet and suture of the lacerations was done and the fracture of the right tibia was fixed internally by an intramedullary rod and locking screws. By the time of the trial, the rod and screws had been removed. He was 25 years old at the time of the accident and 28 years at the time of the trial.

Dr Pillay

4 Dr Pillay, an orthopaedic surgeon, saw Fu on 9 May 2001 and 2 October 2003. His report dated 11 June 2001 arising from the first visit stated that Fu was unable to walk fast and he could not run. Such activities would cause an increase of pain in his leg. If he tried to swim or exercise, he would have more pain in the leg the next day. The pain was always present but aggravated by the activities.

5 The report noted that Fu had a 1cm shortening of his right leg which was permanent. There was clawing on the second to fifth toes. The clawing of the toes would not recover and this indicated there had been some contracture in the muscle as a result of the soft tissue injury accompanying the fractures of the leg. The right knee had restriction of movements.

6 The report also stated Fu had difficulty squatting. When squatting, he kept the right foot in front of the left. He could not run on the spot and he was unable to hop on the right side.

7 The report noted osteoporosis of the bone around the ankle mainly at the lower end of the tibia and the talus.

8 In the report, Dr Pillay stated that it would take at least another three to four months for sound union to occur, and six months before he would be able to go back to work as a construction worker. He would have to squat most of the time when laying marble floor tiles. His work permit was only to do work in laying tiles. Dr Pillay stated it would be advisable to have a review at the end of the year to assess Fu’s final disability.

9 Dr Chang, an orthopaedic surgeon, then examined him on 8 August 2002 which was almost two years eight months after the accident. Dr Chang found there would be some difficulty squatting. He suggested that Fu lay tiles using an alternative working position i.e. that he squat on his left side and place his right foot in front or kneel on the left knee.

10 Following this, Dr Pillay saw him again on 2 October 2003. Dr Pillay found that there was no further recovery on the stiffness of the ankle and the pain. To Dr Pillay, it was quite obvious Fu would not be able to return to work as a floor tile setter because he was unable to squat properly. Dr Pillay felt that the stiffness in Fu’s ankle was a great disability because of his occupation; His skills were in laying tiles.

11 Dr Pillay disagreed with the working posture Dr Chang suggested. Dr Pillay felt that such a working position would be ‘ludicrous’ and ‘an act of contortion’. Fu’s major disability was the stiffness of the ankle. Dorsi-flexion of the ankle was the key to squatting and getting up. Fu had half the range and was therefore unable to squat. Dr Chang’s suggested posture of squatting on one leg and putting the right leg out would not allow Fu to work well. It would be ‘hard to do’. Fu’s ankle would hurt if he assumed that posture. Dr Pillay said that Dr Chang should watch how the tile layers work in the squatting position.

Dr Chang

12 Dr Chang testified that at the time he examined Fu on 8 August 2002 his condition had stabilised.

13 Dr Chang agreed that Fu would have difficulty squatting and that Fu’s difficulty was permanent. There was a slight variation in the findings on Fu’s ankle dorsi-flexion range: Dr Pillay’s findings were 0º to 15º whereas Dr Chang’s findings 0º to 20º. Dr Chang felt that it was reasonable to allow a 5 degree disparity between different observers and a 5 degree difference was of no clinical significance. The range of dorsi-flexion of a normal person is 0º to 20º for the average population. Dr Chang agreed that being a tiler for the last 15 to 20 years, Fu’s pre-accident dorsi-flexion would have been higher at 30º, and different from that of a normal person at 20º. Dr Chang agreed that Fu no longer had the full range of his pre-accident dorsi-flexion, and that he was unable to squat as he was able to before the accident.

14 The doctor demonstrated what he thought was an alternative working position with the left knee bent and the buttocks not resting and the right leg behind; If one was tired, he could switch and bend the right knee with no buttocks resting Dr Chang’s basis for saying that a tile layer could lay tiles in the posture he suggested was because, to his mind, people in the west could not kneel and would adopt such a posture in lying floor tiles. However, Dr Chang agreed that he had no literature on the posture taken by people in the west in laying tiles. In Court, Fu saw Dr Chang’s demonstration and informed his counsel that the suggested posture would be painful to his right leg.

15 Fu’s counsel pointed out that Fu had to lay tiles fast before the cement dried out. He raised the issue that the posture suggested by Dr Chang made Fu unable to lay tiles fast. Dr Chang disagreed. Dr Chang also disagreed that his suggested posture involved the use of the toes (which clawed in Fu’s case) when Fu rose from a kneeling position. He said that one got up using the front and ball of the foot, and not the toes.

16 Fu complained of pain over the fractured site if he stood in excess of 30 minutes or the day after, if he ran. Dr Chang said that while there was no clinical reason why there was pain as the fracture had united well, it was not uncommon for people to complain of pain and ache around the fractured site long after the fracture had healed.

17 Dr Chang was of the view that the clawing was mild. It was a cosmetic blemish. It did not come into play as we do not use our toes and we wear shoes. Dr Chang also said the 1cm shortening of the right leg was of no clinical significance.

Fu

18 Fu, a professional tile layer, was a Malaysian with Singapore Permanent Resident status since on 16 April 1999.As a result of the accident, he suffered the following disabilities: (1) It was no longer possible for him to squat; (2) He was unable to stand continuously for more than 30 minutes; (3) He had severe pain in the right leg if he walked briskly; (4) He had severe pain in the right leg on rainy days; (5) He was unable to kneel for more than a few seconds; (6) He had difficulty in running on the spot; and (7) He was unable to hop on the right foot.

19 As he was unable to squat, he was unable to use public lavatories and this posed a difficulty for him at construction or work sites.

20 After the accident, Fu was told by his employer to leave. By the time of the trial, he had gone through two subsequent employers before working for a third employer. His earnings from the different employers varied and he claimed pre trial loss in the periods where his earnings were less than pre-accident earnings. There were also two periods of unemployment in between the periods of employment for which Fu claimed pre-trial loss.

21 At the time of the accident, he was employed by Hoe Lian Construction (‘Hoe Lian’) as a tile-layer. After the accident in 30 November 1999 he was told by the Hoe Lian not to return to work because of his condition. Accordingly he did not have any earning for 7 months from 1^st December 1999 to July 2000, until he joined Huason Construction Pte Ltd (‘Huason’).

22 He joined Huason in July 2000. Although he had not fully recovered from his injuries, he had to quickly seek employment as he had payments to meet. It was only after he started the work at Huason that he realised that he was not able to squat as before.

23 The work at Huason was largely renovation works in private properties. Fu was under pressure to complete work within a short time. He worked overtime, and on occasion even until daybreak. He tried, but was not able, to sustain working in such a manner over a long term. He was taking longer than other people to do the work. Due to his injuries, he was unable to work long hours, and was asked to resign on 18^th April 2001. At Huason, he was paid a salary of $1,800.00. He produced documentary evidence.

24 After Huason, he was unemployed for a period of six months. It was a period of extreme financial hardship as he had to use his savings to pay for his mortgage payments and living expenses of he and his wife.

25 He then joined Master Contract Services Pte Ltd (‘Master’) on 18 October 2001. His job at Master was a temporary position. He was classified as a daily rated worker. His earnings at Master varied, depending on whether there was work to be done. He produced vouchers. He joined Master because he was not pressurized to perform duties within a short time. His work was not to lay tiles, but to teach the foreign workers how to lay tiles at the work site. As the job at Master was temporary, his contract was terminated on February 2002.

26 He then joined Conco Brothers Engineering Pte Ltd (‘Conco’) in March 2002, and remained employed by Conco up to the time of the trial. His monthly salary was $600.

27 At Conco, he was initially employed to cut out carpet pieces which others then laid. He took the job as it did not require him to kneel or squat. His job was largely to cut out carpet pieces. Subsequently, Master changed his job designation, and re-deployed him to cleaning the interior of aeroplanes. It was common ground that at the time of the accident, Fu’s income...