Hazwani bte Amin v Chia Heok Meng

• Jurisdiction: Singapore
• Judge: Scott Tan AR
• Judgment Date: 02 April 2018
• Neutral Citation: [2018] SGHCR 2
• Court: High Court (Singapore)
• Docket Number: Suit No 483 of 2017 (Assessment of Damages No 25 of 2017)
• Published date: 06 April 2018
• Year: 2018
• Hearing Date: 11 October 2017,10 October 2017,12 October 2017,29 December 2017
• Plaintiff Counsel: Thiruchelvan Sivagnasundram (S.T. Chelvan & Co)
• Defendant Counsel: Hassan Esa Almenoar (R Ramason & Almenoar)
• Subject Matter: Damages,Assessment
• Citation: [2018] SGHCR 2

Scott Tan AR: Introduction

On the night of 31 July 2011, the Plaintiff, then aged 22, was riding her motorcycle along Bedok South Avenue 1 in the direction of New Upper Changi Road when she met with an accident at the intersection of Bedok South Avenue 1 and Upper East Coast Road. The Defendant, who was travelling in the opposite direction, made a right turn at the intersection and collided with the side of the Plaintiff’s motorcycle, causing her to fall. Immediately after the accident, the Plaintiff was conveyed to Changi General Hospital where she was hospitalised for 1.5 months.¹ On 1 July 2014, the Plaintiff commenced an action against the Defendant in the State Courts in the tort of negligence. The Defendant denied liability and the matter proceeded to trial. On 6 November 2015, the District Judge delivered his decision. He held that the Defendant was fully liable for the accident and granted interlocutory judgment wholly in the Plaintiff’s favour (see Hazwani Binte Amin v Chia Heok Meng [2016] SGDC 8 (“State Courts GD”)). On 24 April 2017, the matter was transferred to the High Court for the quantum of damages to be assessed.

After careful consideration of the evidence and the competing arguments, I award the Plaintiff a total of $220,806.20 in damages plus interest at the usual rate of 5.33% per annum from the date of the writ to today. A tabular summary of my findings may be found at paragraph [57] below.

The injuries and the aftermath of the accident

It is undisputed that as a result of the accident, the Plaintiff suffered the following injuries:² right 2nd toe distal phalanx amputation; right 5th metatarsal shaft fracture; right 5th metacarpal fracture; right knee laceration with extension to knee joint; and right thigh laceration.

The accident also left the Plaintiff with a number of scars. These were detailed in a report prepared by Dr Seah Chee Seng – a consultant plastic surgeon practising at Gleneagles Hospital whom the Plaintiff consulted after interlocutory judgment had been entered – as follows:³

Right leg

1. A 25cm x 15cm conspicuous scooped out skin grafted defect at the front to the right knee centred over the knee cap and the upper tibia. The skin was very thin and lacked padding over the bone. The texture and colour of the healed skin graft was also different from normal skin. There was no hair and also no sweat glands. Sensation over the area was very much decreased. 2. There was a 15cm x 10cm cross shaped scar at the lower 1/3 of the right thigh. At the centre of the cross was a 4cm dimpled pigmented scar. 3. Her right second toe was amputated. 4. Healed hypopigmented scar at the dorsum of the right foot. 5. A few scattered 1cm flat hypopigmented scars on the right shin.

Left leg

6. 30cm x 20cm healed skin graft donor site at the front of the left thigh. The colour was very uneven with darker and lighter pattern[s]. Within this scar, there was a 5cm x 5cm patch near the knee cap which was of different texture from normal skin. 7. There were a few scattered hypopigmented scars at the left shin.

On 25 September 2012, the Plaintiff discovered that she had contracted Hepatitis C.⁴ Her position is that she had contracted Hepatitis C as a result of the blood transfusions which she had received following the accident, and the Plaintiff should therefore be liable for the cost of her treatment.⁵ The Defendant denies this, and submits that even if it were the case that the Plaintiff had contracted Hepatitis C as a result of the blood transfusions she had received, her recourse (if any) lies in an action against the hospital, and not against him.⁶

The heads of claim

The Plaintiff brought a number of claims, which may conveniently be divided into the following four categories: (a) pain and suffering, (b) future medical expenses, (c) loss of earning capacity, and (d) special damages. All of her claims, save for the one, were disputed by the Defendant. I set out the parties’ respective positions in the table below:⁷

S/N	CLAIM	PLAINTIFF	DEFENDANT
1. Pain and Suffering	$61,000	$24,637.00
1.1	Right 2nd toe distal phalanx amputation	$18,000	$11,000
1.2	Right 5th metatarsal shaft fracture	$8,000	$3,167
1.3	Right 5th metacarpal fracture	$5,000	$2,861.70
1.4	Right knee laceration with extension to knee joint and right thigh laceration	$5,000	$2,950
1.5	Scarring and disfigurement	$25,000	$4,658.00
2. Future medical treatment	$203,000 –$363,000	NIL
2.1	Corrective surgery for large scooped out scar	$203,000 – $283,000	NIL
2.2	Corrective surgery for dimpled scar on right lower thigh
2.3	Treatment for hepatitis C	$80,000	NIL
3.	Loss of earning capacity	$120,000	NIL
4.	Special damages	$76,939.99	$8027.59
4.1	Medical expenses	$71,533.89	$5,481.39
4.2	Transport expenses	$193.10	$115.20
4.3	Pre-trial loss of earnings	$2,133.00	$2,133.00
4.4	Cost of repair of motorcycle	$2,900.00	$298.00
4.5	Loss of use of motorcycle	$180.00	NIL
TOTAL:	$460,939.99 – $620,940	$32,664.59

The Plaintiff called 3 witnesses to give evidence on her behalf: Dr Lim Wen Siang Kevin, a former medical officer at Changi General Hospital, and the author of the medical report on the care received by the plaintiff during her stay at Changi General Hospital; Dr Seah; and Dr Jessica Tan Yi-Lyn (“Dr Tan”), a senior consultant in the Gastroenterology and Hepatology department of Changi General Hospital, whom the Plaintiff consulted in 2016 in relation to her treatment options for Hepatitis C.⁸

The Defendant elected not to call any witnesses. At the close of the hearing, Mr Hassan Esa Almenoar (“Mr Almenoar”), counsel for the Defendant, sought leave to put in further evidence on the cost of corrective surgery (see items 2.1 and 2.2 of the table). I declined to give leave at that stage because it was not clear whether the additional evidence would be forthcoming, or what form the evidence would take. Instead, I granted the Defendant liberty to apply for further directions once it became clear what evidence his client intended to adduce. However, no such application was made.⁹

Pain and suffering

I now turn to each of the heads of claim, beginning first with the claim for pain and suffering. As the Court of Appeal said in ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918, the quantification of damages for intangible injuries – such as pain and suffering – is an exercise that is fraught with difficulty, for it involves the ascription of a “monetary value to matters which do not lend themselves easily to pecuniary expression” (at [137]). I bear this well in mind. I bear in mind, also, that the “sensible way forward” in the assessment of damages for pain and suffering is to use the awards made in precedent cases as guides, but to remember that each case turns on its own particular facts (see Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR(R) 178 (“Ronnie Tan”) at [11]). This is particularly important here because many of the precedents cited were unreported cases in respect of which no detailed grounds were issued. As has been said in a different context, unreported cases – while useful in giving a sense of the broad range of possible awards – should be treated with caution. Even when the facts of these unreported cases are summarised in a digest, there is simply not enough particularity to allow intelligent comparisons to be made (see Luong Thi Trang Kathleen v Public Prosecutor [2010] 1 SLR 707 at [21]). For these reasons, I do not propose to discuss all of the cases cited by the parties (although I have considered all of them carefully), but will confine myself only to those which I consider to be the most germane.

Right 2nd toe distal phalanx amputation

In justifying his client’s claim for $18,000 for this head of loss, Mr Thiruchelvan (“Mr Thiru”), counsel for the Plaintiff, relied chiefly on the recent decision of the Singapore High Court in Tan Shi Lin v Poh Che Thiam [2017] SGHC 219 (“Tan Shi Lin”), which also concerned the assessment of damages following a road accident. In that case, the plaintiff claimed damages for, among other things, the full amputation of her big toe and the partial amputation of her second toe. Relying on the guidelines set out in Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“Guidelines for the Assessment of General Damages”), the court awarded damages of $30,000 for the complete amputation of the big toe and $25,000 for the partial amputation of the second toe (at [31] and [34]). In the light of this, Mr Thiru submits that the sum of $18,000 claimed by the Plaintiff is “very reasonable”.¹⁰ Mr Almenoar, on the other hand, submits that Tan Shi Lin should be distinguished because the plaintiff in that case had suffered from a range of physical limitations that prevented her from leading the active lifestyle she used to enjoy, but that there was no evidence of similar disability here that would justify the making of a similar award in this case.¹¹

Given the reliance placed on it by the parties, it is useful to examine the facts of Tan Shi Lin more closely. In that case, the plaintiff was a motorcyclist whose left foot was run over by a bus driven by the defendant, causing her to suffer from severe crush injuries. The plaintiff then brought both a general claim for pain and suffering arising from the crush injury to her left foot as well as distinct claims for the amputations of her toes. In that section of the judgment referred to by Mr Almenoar, the court was considering whether the plaintiff...