Deputy Registrar Andre Sim Jun Yi:
Introduction
This is an action brought by the plaintiff (the “Plaintiff”), a Bangladeshi national, in respect of a road traffic accident on 18 January 2018. At the material time, the Plaintiff was 35 years old and employed as a construction worker by the second defendant construction company. He rode as a passenger in the second defendant’s lorry, which was being driven by the first defendant. The lorry collided into the rear of a bus, causing the Plaintiff to sustain various personal injuries.
The Plaintiff commenced proceedings against both defendants (“Defendants”) on 1 August 2019. He claimed that the first defendant had been negligent in driving the lorry, and that the second defendant was liable as his employer. On 6 April 2020, consent interlocutory judgment was entered in favour of the Plaintiff against the Defendants for 100% of the damages to be assessed.
In the present assessment of damages, the Plaintiff claims general damages for: (a) pain and suffering from his personal injuries; (b) loss of future earnings (“LFE”); (c) post-trial loss of earning capacity (“LEC”); and (d) future medical expenses. He also claims special damages comprising: (a) pre-trial loss of earnings; as well as (b) medical and transport expenses incurred to date.
In dealing with these claims, two significant legal issues arise for my consideration. First, on the issue of LEC, parties dispute the applicable legal test to be met. Two key Court of Appeal decisions appear to have taken differing approaches as to whether a plaintiff must show a ‘substantial or real risk’ of losing his ‘present job’ in order to be entitled to an award for LEC. Such a requirement was applied by the Court of Appeal in Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Samuel Chai”), but not in its later decision of Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”). In this judgment, I explore the underlying rationale for the requirement, and distil the relevant principles as to the appropriate legal test to be applied to different fact-patterns.
Second, an issue of overcompensation also emerges. It is well-established that at a conceptual level, LFE and LEC are distinct heads of damages meant to compensate for different losses (Samuel Chai at [10] and [20]). To my mind, however, this does not necessarily mean that the two heads of damages will never overlap in any factual situation. In the present case, it falls to be decided whether any overlap exists between the awards for LFE and LEC sought, so as to trigger the rule against double recovery.
Parties’ cases and the assessment hearing
At the assessment hearing, only the Plaintiff was called as a witness. Parties agreed to dispense with the attendance of the medical experts who had examined the Plaintiff. The said experts were accordingly not cross-examined on their medical reports, which were admitted into evidence without challenge. The said medical reports were as follows: A medical report by Dr Liu Ren Jie of Ng Teng Fong General Hospital (Emergency Medicine Department) dated 23 April 2018 (“Dr Liu’s medical report”) in respect of the Plaintiff’s initial consultation on the day of the accident, 18 January 2018. A medical report by Dr Hannah Ng of Ng Teng Fong General Hospital (Department of Orthopaedic Surgery) dated 18 June 2018 (“Dr Ng’s medical report”) in respect of the Plaintiff’s consultation with the orthopaedic department on 23 February 2018. A specialist medical report by a consultant orthopaedic surgeon, Dr Lee Soon Tai of Osteoporosis Clinic and Orthopaedic Surgery dated 26 December 2018 (“Dr Lee’s specialist medical report”) in respect of his medical examination of the Plaintiff on 2 March 2018. A specialist medical report by a consultant neurosurgeon, Dr Keith Goh from International Neurosurgery Associates Pte Ltd dated 9 July 2018 (“Dr Goh’s specialist medical report”) in respect of his medical examination of the Plaintiff on 2 March 2018. This report focussed on the “brain and neurological injuries” suffered by the Plaintiff.
Parties’ respective positions on the Plaintiff’s various heads of claim are summarised as follows:
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| Claims | Plaintiff’s submission | Defendant’s submission |
| GENERAL DAMAGES |
| Pain and suffering | Pelvis fractures | S$20,000 | S$6,000 |
| Mild head injury with post-concussion syndrome | S$10,000 | S$1,000 |
| Frontal Scalp Laceration | S$2,000 |
| Back contusion with stenosis | S$10,000 | S$500 |
| Right shoulder abrasion and contusion | S$1,500 | S$500 |
| Chest contusion | S$1,000 | S$500 |
| Multiple scars | S$5,000 | S$1,000 |
| Loss of Future Earnings | S$40,680 | NIL |
| Loss of Earning Capacity | S$20,000 | NIL |
| Future Medical Expenses | S$5,550 | NIL |
| SPECIAL DAMAGES |
| Pre-Trial Loss of Earnings | S$36,310 | S$2,000 |
| Medical Expenses | S$440.46 | S$440.46 |
| Transport Expenses | S$250 | S$92.41 |
| TOTAL | S$152,730.46 | S$12,032.87 |
I deal with each head of claim in turn.
General Damages
Pain and suffering
Applicable legal principles
Assessing damages for non-pecuniary losses (like pain and suffering) is inherently difficult because such losses are not easy to quantify and do not lend themselves to straightforward mathematical calculation. The guiding principle is that of “fair compensation”, which means that compensation ought to be reasonable and just. It need not be “absolute” or “perfect” (Lua Bee Kiang at [9]).
As explained in Lua Bee Kiang (at [9]-[12]), there are traditionally two methods for assessing damages for pain and suffering: The component method, by which the loss arising from each item or head of damage is separately quantified and then added up to estimate the overall loss that the claimant has suffered. The global method, by which all the injuries sustained by the claimant are considered holistically to arrive at an estimation of his overall loss. The principle behind the component method is that damages should be awarded for losses or heads of damage that may properly be regarded as distinct or discrete. However, the court must also ensure that the overall quantum awarded is a reasonable sum that reflects the totality of the claimant’s injuries. This latter point is the principle which animates the global method. The two methods are complementary rather than mutually exclusive. They are simply different practical modes of producing a fair estimate of the claimant’s loss.
In cases where multiple injuries are suffered, the Court of Appeal in Lua Bee Kiang has held (at [12]-[18]) that a two-stage analysis should be adopted: At the first stage, the component method should be applied to ensure that the loss arising from each distinct item or head of damage is accounted for and quantified. Reference may be made to assessment guidelines at this stage, but it must be remembered that they are no more than guidelines. At the second stage, the global method should be applied to ensure that the overall award is reasonable and neither excessive nor inadequate. This exercise is guided by at least two considerations. First, to avoid overcompensation, the court should take into account any “overlapping” injuries, that is, injuries which either (i) together resulted in pain that would not have been differentially felt by the claimant or (ii) together gave rise to only a single disability. Second, the court should then consider the relevant precedents to reach a fair estimate and to ensure that like cases were treated alike.
In the present case, the Plaintiff claims to have suffered injuries to his pelvis, head, back, right shoulder and chest as a result of the accident. In assessing the appropriate quantum of damages for pain and suffering, I am guided by the indicative ranges set out in Charlene Chee et al, Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”). Parties also refer me to the case digests set out in Carrie Chan et al, Practitioner’s Library – Assessment of Damages: Personal Injuries and Fatal Accidents (Lexis Nexis, 3rd Ed, 2017) (“the Blue Book”), which I deal with in the course of my assessment below. Insofar as these authoritative guides are concerned, I am cognisant that they were issued some years ago and as such, an upward adjustment to account for inflation ought to be made as appropriate. At the end of the day, the quantum of damages for pain and suffering must reflect the totality of the plaintiff’s injuries.
Stage 1: Applying the component method
Pelvis fractures
The Plaintiff suffered right-sided superior and inferior pubic rami fractures, as well as a right-sided acetabular fracture. This was treated conservatively with analgesia and the Plaintiff was given hospitalisation leave. He was later referred to a physiotherapist and occupational therapist at Ng Teng Fong General Hospital for rehabilitation. Dr Lee’s specialist medical report assessed that there was a limited range of right hip flexion, extension, abduction and internal rotation which “could be awarded 14% permanent incapacity”. There was also wasting of the right thigh muscle (2.5cm) and calf muscle (2cm) as compared to the left.
For these pelvis injuries, parties submit as follows: The Plaintiff’s counsel submits a figure of S$20,000 for pain and suffering. This falls within Chapter 6(J)(a)(iii) of the Guidelines for severe pelvis and hip injuries requiring partial or total hip replacement surgery and which result in “significant disabilities”. The range indicated for this category is S$18,000 to S$25,000. The Defendants’ counsel submits a figure of S$6,000. This falls within the range of S$5,500 to S$8,000 in Chapter 6(J)(c) of the...
