Ho Yung Peng v Tan Say Tiong

• Jurisdiction: Singapore
• Judge: Toh Han Li
• Judgment Date: 27 July 2021
• Neutral Citation: [2021] SGDC 141
• Court: District Court (Singapore)
• Docket Number: DC 903/2016 (DC/RA 20/2021)
• Year: 2021
• Published date: 06 August 2021
• Hearing Date: 30 April 2021,16 April 2021
• Plaintiff Counsel: Sandhu Viviene Kaur (Clifford Law LLP)
• Defendant Counsel: Wee Anthony (United Legal Alliance LLC)
• Subject Matter: Damages,Assessment,Future medical expenses,Loss of earning capacity
• Citation: [2021] SGDC 141

Principal District Judge Toh Han Li: Introduction

This was an appeal by the plaintiff (“the appellant”) arising from an assessment of damages by the Deputy Registrar (“the DR”) in a motor accident case. The appeal touched specifically on the DR’s decision with regard to two heads of damages, namely future medical expenses and loss of earning capacity and the applicable principles for the award of these heads of damages.

Background facts

The appellant was a 47-year old senior officer in the Republic of Singapore Air Force (“RSAF”). He sustained personal injuries on 10 September 2015 when a taxi driven by the defendant (“the respondent”) collided into the rear of his car. Pursuant to a consent interlocutory judgment dated 7 June 2017, the respondent was to pay 100% of the damages assessed to be due to the appellant.

The accident caused the appellant to sustain (a) a Grade 1 whiplash injury to his neck, and (b) an injury to his lower back that aggravated a pre-existing L4-5 disc prolapse and this led to an annular tear at the same L4-5 disc.

Various heads of damages were agreed upon by the parties before the DR. For the present appeal, the appellant has appealed only against the DR’s award on the following heads of damages: Future medical expenses comprising future cost of surgery, medication and acupuncture. The DR’s award and the appellant’s submission on what should be the amount awarded are as follows:

S/No	Head of claim	DR’s award	Appellant’s submissions
1	Future cost of surgery	$10,000	$33,000
2	Future cost of medication	$2,000	$4,800
3	Future cost of acupuncture	$2,500	$5,760

Loss of earning capacity. The appellant had sought $150,000 but the DR declined to make an award under this head of claim. Future medical expenses The Court of Appeal’s decision in Lua Bee Kiang

For future medical expenses, the key issue raised in this appeal was the import of the Court of Appeal’s decision in Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua”) with regard to the principles in assessing and the quantification of future loss.

The DR held that the import of Lua’s case was to lay down a principle that widely and generally governs all claims for future loss as stated at [19] of his GD:

It seems to me evident that the Court of Appeal intended in that decision (at [72]) to lay down a principle that widely and generally governs all claims for future loss so that there is no possibility of distinguishing it or limiting its application. As the Court of Appeal explained (at [65]), proof on a balance of probabilities is appropriate for questions of historical fact but not so for enquiries as to what might happen in the future. Hence in considering the disputed items of future medical expense the starting question must be whether there is an “appreciable risk” that the plaintiff will incur the cost of medication, acupuncture and surgery in the future.

Appellant’s counsel took issue with the DR’s interpretation of Lua’s case. She adopted a more limited reading of Lua’s case and stated at [2.6] of her submissions:

Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”) does not propose that the principle of balance of probabilities should not be applied in determining future medical expenses. In fact, it only states that the appreciable risk principle applies in cases where there is a future onset medical condition.

[emphasis added]

At the appeal hearing before me, appellant’s counsel was prepared to concede a slightly wider interpretation of Lua’s case, namely that the appreciable risk principle applies not only to cases where there is a future onset medical condition, but where there is speculation as to whether the future event will happen.

That said, appellant’s counsel submitted that the issue of the appellant having to undergo surgery was not speculation as to a future event, but something which the appellant would have to go through based on his current medical condition caused by the respondent’s negligence. As such, given that the need for surgery had been demonstrated on a balance of probabilities, he should be awarded the full amount without any discount on the basis of appreciable risk.

Appellant’s counsel also submitted that the same principle should apply to the claims for medication and acupuncture, meaning to say that the appellant had demonstrated that these claims were required based on the appellant’s current medical condition and no discount on the basis of appreciable risk should have been applied by the DR.

Respondent’s counsel agreed with the DR’s interpretation of Lua’s case and submitted that the appreciable risk test as set out in Lua’s case was meant to apply to all future losses which included the future cost of surgery, medication and acupuncture as in the present case and the DR was therefore correct in applying the relevant discount on the basis of appreciable risk. The respondent’s counsel also submitted that cases such as Tan Hun Boon v Rui Feng Travel Pte Ltd and another [2018] 3 SLR 244 which were relied on by the appellant’s counsel were pre-Lua and therefore of no relevance.

In determining the import of the Court of Appeal’s decision in Lua, it is worth examining the decision in Lua in some detail. The relevant passages of the Court of Appeal’s decision in Lua’s case can be found at [65] to [82]. The header preceding [65] is titled “Assessing damages for future loss” and under “Applicable principles” the Court of Appeal states at [65]:

Proof on a balance of probabilities is a standard of proof that is applied in civil cases generally to discern whether a past event happened. Such proof is necessary for the court to determine “whether [the plaintiff’s] case is more probably true than untrue” (see Jeffrey Pinsler, Evidence and the Litigation Process (LexisNexis, 6th Ed, 2017) at para 12.092). In the absence of an exhaustive historical record, the notion that an event was more likely than not to have happened is an epistemic proxy for whether it did in fact happen. By contrast, “there is no provable truth with regard to the future”, as Vinodh Coomaraswamy J observed in the High Court decision of Poh Fu Tek v Lee Shung Guan [2018] 4 SLR 425 at [42] in the context of assessing the credibility of cash flow projections for the purpose of valuing a company. It is not possible by human means to know what the future holds. Therefore, it would be unfair to fault a party for being unable to establish an assumption about a future event as true on the balance of probabilities. Instead, the question in that context is whether that assumption is reasonable, and if it is, an appropriate discount may be applied to take into account the risk that the event may not happen (at [42]).

[emphasis added]

The Court of Appeal then examined the leading overseas authorities in this area, namely the United Kingdom House of Lords decisions of Mallett v McMonagle, a minor by Hugh Joseph McMonagle, his father and guardian ad litem [1970] AC 166, Davies (AP) (suing as widow and administratrix of the estate of Kenneth Stanley Davies, decd) v Taylor [1974] AC 207 and the Australian High Court decision of Malec v J C Hutton Pty Ltd (1990) ALR 545.

The Court of Appeal proceeds to state at [72] to [73]:

We are in general agreement with these authorities. In our judgment, in assessing damages for future loss – such as cost of nursing care – arising from the possible future onset of a medical condition as a result of the defendant’s negligence, the court must first determine whether there is an appreciable risk that the claimant will suffer that loss. If there is such a risk of future loss, then the claimant ought to be compensated for it. The court’s task will be to evaluate that risk. The court may take as its starting point an award corresponding to the full extent of that loss, and then adjust it to account for the remoteness of the possibility and the chance that factors unconnected with the defendant’s negligence might contribute to bringing about the loss. In making this adjustment, however, the court should not be fixated on discerning a precise percentage by which the award should be discounted, because the exercise is inherently imprecise. To this extent, we agree with the minority’s view in Malec. Instead, the appropriate discount ought to be decided bearing in mind the principle stated by Lord Morris in Mallett, namely, that the opposing probabilities must be weighed with sympathy and with fairness for the interests of all concerned and at all times with a sense of proportion. Such an approach would be consonant with the central principle of fair compensation which underlies this area of the law.

This is representative of how future losses are assessed in personal injury cases generally. That assessment typically involves two sets of predictions to be made at the date of trial or settlement: (a) what would have happened in the future had the injury not been sustained and (b) what is likely to happen in the future now (see Cane and Goudkamp at p 118). The assessment of Mr Yeo’s need for future nursing care belongs to the latter category, while the assessment of his loss of future earnings, for example, belongs to the former. In both instances, the idea is not to establish historical truth, but to determine the reasonable possibility of a future event, which would then enable the court to grant a remedy that is proportionate to the degree of that possibility. This we have explained to be the approach to the claim for cost of future nursing care here. Likewise, in relation to loss of future earnings, it has never been suggested that when determining the appropriate multiplier based on the claimant’s remaining working life...