Goh Eng Hong v Management Corporation of Textile Centre And Another

• Judge: Kan Ting Chiu J
• Judgment Date: 27 May 2000
• Neutral Citation: [2000] SGHC 97
• Citation: [2000] SGHC 97
• Defendant Counsel: Dinesh Singh Dhillon (Khattar Wong & Partners)
• Published date: 19 September 2003
• Plaintiff Counsel: Leonard Lim Kian Wee (Thomas Tham & Co)
• Date: 27 May 2000
• Docket Number: Suit No 307 of 1998
• Court: High Court (Singapore)
• Subject Matter: Physical condition of plaintiff,Post-traumatic stress disorder,Appropriate multiplier,Damages,Loss of future earnings,Nature of employment,Personal injuries cases,Measure of damages,Whether there is evidence to support higher multiplicand for post-trial earnings compared to pre-trial earnings,Quantum,Fracture of tibia and fibula,Fracture of medial malleolus of ankle

JUDGMENT:

Grounds of Decision

1 This was an appeal by the Second Defendants against the damages assessed and awarded by an Assistant Registrar pursuant to an interlocutory judgment.

2 The events commenced with an accident on 3 May 1997 when the Plaintiff was using a lift at the Textile Centre at Jalan Sultan. The lift fell to the bottom of the lift shaft, and she was injured.

3 The Plaintiff was 51 years old at the time of the accident and was working as a host mamasan at the Volvo (KTV) Karaoke Lounge. She did not resume work after the accident because of the injuries to her left lower limb, the post-traumatic stress disorder that developed, and problems she had with her eyes.

4 The Assistant Registrar assessed damages for the Respondent in the aggregate sum of $415,341.79 on 6 January 2000. The Second Defendants appealed against five heads of award made by the Assistant Registrar for-

(i) fracture of the left tibia and fibula - $30,000

(ii) fracture of the medial malleolus of left ankle - $20,000

(iii) post-traumatic stress disorder - $40,000

(iv) pre-trial loss of earnings - $72,600, and

(v) post-trial loss of income - $162,000

5 I reduced awards (i), (ii), (iii) and (v) and upheld award (iv). As the Plaintiff has appealed against the reductions, I shall deal with them.

Injury to the left tibia, fibula and malleolus

6 Dr Sarbjit Singh, a consultant orthopaedic surgeon attached to the Tan Tock Seng Hospital attended to the Plaintiff from the start and had continued to be in charge of her case. He stated in his report of 27 November 1997 that

She sustained an open compound fracture of the left tibia and fibula and a closed fracture medial malleolus of the left ankle.

Wound debridement, external fixator application of the left tibia and fibula and internal fixation of the left ankle fracture was done on the same day.

She was discharged from hospital on 14.5.97.

Patient developed delayed union of the fractured left tibia requiring posterolateral bone grafting on 1.8.97.

When last seen on 7.11.97, the wounds had healed well. The fracture site was mobile with a varus deformity. She is still on follow-up.

and in a later report dated 9 November 1998, he added that

Patient developed delayed union of the fractured left tibia requiring posterolateral bone grafting on 1 August 97. Serial x-rays confirmed to show poor fracture union.

Acute shortening and Ilizarov distraction osteotomy of the left tibia was done on 10 March 98.

Serial x-rays showed good progression of the distraction site. Limited bone grafting was done on 10 June 98.

The fracture united on follow-up and the frame was removed on 9 September 98.

She is presently walking partial weight bearing. Patient has residual stiffness of the left ankle.

7 In his last report dated 6 August 1999 he noted

The non-union of the left tibia healed on follow-up. She has mild stiffness of the left ankle and lack 15 ankle dorsiflexion.

Presently, she walks with a shoe raise. Her left knee range of motion is full and painless.

8 The Plaintiff was also seen by orthopaedic consultants in private practice. In particular, Dr Liang Te Shan submitted his report based upon an examination on 2 February 1999 that

1. She is markedly hyposthetic from the mid shin level downwards. Her sole sensation to pressure and pain is reduced making skin pressure sores likely.

2. She has chronic limb pain. This is from a combination of nerve injuries, altered weight bearing biomechanics from bone malunions, ankle fusion, subtalar fibrodesis and flexion contractures causing clawing of the toes. (bone fusion, soft tissue joint scarring, muscle loss and scarring resulting in contractures.)

She is basically unable to use her left leg to walk without pain and cannot be employed in her prior occupation in a lounge.

3. There is in addition unsightly scars and atrophic/poor quality soft tissue in the leg and foot.

Assessment:

Mdm Goh has suffered very severe injuries to her left leg. She also has other problems requiring consultation with other physicians and psychiatrists. Her injuries have resulted in many months of painful treatment, multiple surgeries and loss of gainful employment.

Although surgery was successful in preserving her left leg, the leg is functionally useless. In addition, she has chronic persistant disabling pain that often results in dependancy on sedatives, psychiatric modifying drugs and in some, narcotic analgesics.

In my opinion, she is better off with her leg amputated below the knee as her function (and cosmesis with an artificial limb) would be far superior.

As it is, she has little to show in beneficial terms for the pain and suffering she has endured. She may well decide eventually to have a below knee amputation to remove the painful useless limb and then may be rehabilitated back into gainful employment.

9 At the hearing before the Assistant Registrar Dr Singh expanded on parts of his reports. He explained that an Ilizarov distraction is a technique to get a fracture site to heal. This involves cutting the bone and placing the leg in a frame, after which the bone is lengthened by gradual adjustments of the frame over a period of 6 months.

10 Dr Singh also explained that the loss of 15 ankle dorsiflexion meant that the Plaintiff’s foot could not be horizontal, but would point downwards at 15. This is a permanent disability which requires her to wear a shoe with a shoe raise to walk, and even with that, she will walk with a very mild limp. She is now able to walk short distances of about 30 metres and her walking is expected to improve, but there will be some pain and discomfort in the left forefoot and the ankle.

11 He also commented to the matters raised in Dr Liang’s report. He disagreed that the Plaintiff’s left leg is functionally useless, and considered amputation very unlikely.

12 When Dr Liang gave evidence he confirmed that he saw the Plaintiff only once before he put up his report. After the report, he saw the Plaintiff once again on 15 July 1999. On the second occasion, she was on a wheelchair. Although he said he tried to get her out of the wheelchair, she was unwilling to put weight on her leg because of her pain.

13 On the Plaintiff’s own evidence, her condition has improved since Dr Liang saw her. She testified before the Assistant Registrar that she can walk about 10 steps in her orthopaedic shoes with the help of a walking stick before she felt pain. She mentioned that she experienced pain when she walked, but did not complain of the chronic persistent disabling pain Dr Liang referred to in his report. She did not say that her left leg is functionally useless, and did not express any intention to have it amputated. Indeed it was not clear whether the question of amputation has been brought up to her for consideration.

14 I preferred Dr Singh’s evidence on the Plaintiff’s condition to Dr Liang’s. Dr Singh had a greater knowledge of the Plaintiff’s condition than Dr Liang and the Plaintiff’s own evidence was more consistent with his assessment. Dr Liang could have been of greater assistance if he had seen in the Plaintiff more often than he did, and closer to the hearing before the Assistant Registrar.

15 It appears from the evidence that the closed fracture of the medial malleolus healed without problems, as did the open compound fracture of the left fibula. The fractured tibia was more troublesome. A delayed union required bone grafting and Ilizarov distraction before it healed properly. The fracture of the medial malleolus of the left ankle has also healed with a 15 loss of dorsiflexion (upward flexing) in the left ankle. She has a slight limp and discomfort when she walks and she can only walk short distances now although that would improve in time.

16 Counsel for both parties cited precedent awards for injuries similar to those suffered by the Plaintiff. Two relatively recent awards for fractures of the tibia and fibula with residual disabilities were of particular assistance.

17 In Alagamalai s/o Veerasamy v Chan Lian Chan, November 1994 MMD 1603, a 39-year-old police officer suffered comminuted fractures of the distal shafts of the left tibia and fibula. There was malunion at the fracture site with disuse atrophy of the bones. The left leg was shortened by 2 cm, and the lower half of the leg was deformed. There was limitation of movement in the left ankle - 5 loss of dorsiflexion as well as 15 loss of plantarflexion (downward flexing). He walked with an obvious limp and was unable to squat fully. He was awarded $20,000 in 1994.

18 In Lai Sin Wah v Ng Soo Ngoh January 1999 MCL 72 a 42-year-old carpenter had comminuted fractures of the tibia and fibula. His right leg was infected, malunited and shortened. He experienced chronic pain over the fractured right leg aggravated by heavy lifting and chronic discharge from the right shin. He had a limping gait and unsightly bowing of the right shin, and was unable to run, jog or squat. For these injuries he was awarded $25,000 in 1998.

19 An older 1991 award for similar fractures with residual disabilities was also referred to. This was in Parakatt Sajeev s/o Kunniyer Damodara Kurup v Camperon Bernard – Singapore Piling Civil Contractors Pte Ltd [1996] MD 991. A 28-year-old carpenter sustained an open wound over the medial aspect of the left leg and open fracture of the left tibia and fibula. External fixation and split skin graft were applied to the open wound. He developed an infected non-union which required treatment by debridement and Gentamycin beads, but even with the treatment infection may flare up again in the future. The residual disabilities were two large scars, a stiff ankle and difficulty in squatting and rapid ambulation. $36,000 was awarded for these injuries. This is higher than the 1994 and 1998 awards as the residual injuries were less severe, with no shortening or deformity. I accepted the two later awards to be more reflective of the...