Karuppiah Nirmala v Singapore Bus Services Ltd

CourtHigh Court (Singapore)
JudgeJudith Prakash J
Judgment Date02 May 2002
Neutral Citation[2002] SGHC 99
Citation[2002] SGHC 99
Defendant CounselBenedict Chan and Martin Lee (Goh Poh & Partners)
Plaintiff CounselKaruppan Chettiar and Renuka Chettiar (Karuppan Chettiar & Partners)
Published date19 September 2003
Docket NumberSuit No 69 of 2000 (Registrar's
Date02 May 2002
Subject MatterWhether to compute such expenses on A or B class ward basis,Accident not affecting plaintiff's skills as professional,Injuries causing plaintiff to quit full-time job,Future medical expenses,Personal injuries cases,Pre-trial loss of earnings,Loss of future earnings,Accident adversely affecting earning ability,Whether award for loss of earning capacity more appropriate,Damages,Measure of damages,Appropriate multiplier,Duty to mitigate loss,Surgery, hospitalisation and treatment

bus company on 14 July 1998. She obtained an interlocutory judgment against the defendants in July 2000 for damages to be assessed. After the assessment of damages by the assistant registrar, the defendants appealed against the awards only in respect of future medical expenses, pre-trial loss of earnings and loss of future earnings.

The award for future medical expenses of $14,000 was supposed to cover surgery of the plaintiff’s shoulder and treatment for her neck. Medical experts were called by both the plaintiff and the defendants to give their opinions on the medical condition of the plaintiff, the need for surgery and the costs of surgery needed and of hospitalisation.

As for the pre-trial earnings, the assistant registrar awarded $1,500 per month for 33 months from the period between April 1999 to October 2001. At the time of the accident, the plaintiff was holding down two jobs. She was working as a part-time lecturer with Kinderland Learning Centre and as an editor with Federal Publications. She had to resign from her job with Federal Publications because her job involved extensive typing, editing, proof-reading of manuscripts and working on a computer and she was unable to meet deadlines due to pain in her neck and shoulder. However, she carried on with her work as a part-time lecturer and took on an additional role as a practicum supervisor. Even in these occupations nevertheless, she would develop pain in her shoulders and neck. As an editor with Federal Publications, she was earning $4,300 a month and after the accident, her average monthly earnings for the years ending 1999 and 2000 were $2,500 and $2,460 respectively. The defendants argued that notwithstanding her injuries, she was not operating at optimum capacity. The evidence tendered by the plaintiff showed that she worked only 10 days a month and each session was 3 hours long. They further argued that her real reason for leaving Federal Publications was not because of her medical condition. Her letter of resignation had not mentioned her medical condition, instead it stated that she was leaving in order to spend more time with her children.

With respect to post-trial earnings, the issue was whether the plaintiff should have been awarded future loss of earnings or whether the correct award would have been one for loss of earning capacity. The plaintiff argued that she was entitled to future loss of earnings because she could no longer work as a full-time editor due to her medical condition. The defendants submitted that the editorial work only took up a period of one and a half years out of a total career period of 15 years and since the accident, she had gone back to what she had been doing before her stint in editing. It was argued that the plaintiff was not disabled from pursuing her vocation in which she had adequate training and plenty of experience and in fact, was now carrying on. It was further argued that that work would pay comparably to her editor’s work once she was able to take on additional assignments.

Held,

allowing the appeal

(1) The evidence did not support any award for future surgery on the plaintiff’s cervical spine. The evidence of her expert was that he could not predict whether this would be required. Possibilities are not, however probabilities, and the court works on the balance of probabilities. The evidence did, however, support an award for the cost of a shoulder operation since this has been recommended by both doctors as the plaintiff continues to experience symptoms in her right shoulder. The present cost of a shoulder operation would be in the vicinity of $8,000 if the plaintiff goes to an A class ward in Singapore General Hospital. There is no evidence as to cost of other medical treatment such as physiotherapy and traction and drugs, as such it is not considered that the award could take these costs into account. The award for future medical expenses is hence varied from $14,000 to $8,000.

(2) It appears that the injuries which the plaintiff sustained did have an effect on her employment. Her complaints at work were consistent with those injuries. The plaintiff’s explanation that she was trying to preserve the prospects of future employment by not disclosing her real reason for leaving Federal Publications is an acceptable one. Nevertheless, she had been advised by her doctor in March 2001 to undergo an operation to deal with her shoulder pain. The defence pointed out that the plaintiff had a duty to mitigate her losses. Accordingly, the award for pre-trial losses was $1,500 per month for 27 months, reduced from 33 months, for the period from April 1999 to March 2001

(3) Although the accident has meant that an editing career would be difficult for the plaintiff to maintain, it has not affected her main skills or her ability to exploit those skills profitably. Whilst her earning ability has been adversely affected by the accident the circumstances of the case make an award for loss of earnings capacity more appropriate than one for the loss of future earnings. The editing path was one that was new to the plaintiff and it is not possible to be certain that she would have continued in that line. There are other remunerative avenues still open to her. However, bearing in mind the fact that her ability to earn a good income may be limited from time to time by the after effects of the accidents, an award of $70,000 for the loss of earning capacity would be reasonable. The basis of this award is the sum of $500 a month for 11 years rounded upwards to reflect a fair estimation of the impact the accident has had on the plaintiff’s earning capacity.

Judgment Cur Adv Vult

GROUNDS OF DECISION

1. The plaintiff, Madam Karuppiah Nirmala, was driving her motorcar on 14 July 1998 when it was hit by a bus driven by an employee of the defendant bus company. As a result, the plaintiff experienced acute pain in her neck, shoulders and arms. Subsequently, she was diagnosed as having sustained injuries in both her shoulders as well as her cervical spine.

2. The plaintiff obtained interlocutory judgment against the defendants in July 2000 for damages to be assessed. The assessment took place in December last year and she was awarded the following damages:

(1) Pain and suffering and loss of amenities
(a) cervical spine injury
(including prospect of osteoarthritis)
$ 14,000.00
(b) shoulder injury $ 10,000.00
(2) Agreed special damages – medical expenses $ 2,867.69
(3) Agreed transport costs $ 430.00
(4) Pre-trial loss of earnings (33 x $1,500) $ 49,500.00
(5) Future medical expenses
(surgery for shoulder & treatment for spine)
$ 14,000.00
(6) Loss of future earnings ($1,500 x 11 x 12) $198,000.00

The defendants appealed against the awards in respect of future medical expenses, pre-trial loss of earnings and loss of future earnings.


Future medical expenses

3. The award for future medical expenses of $14,000 covered surgery of the plaintiff’s shoulder and treatment for her neck.

4. The medical evidence was provided by two doctors. The first was Dr A. K. Mitra, a senior consultant orthopaedic surgeon at Singapore General Hospital. He first saw the plaintiff the day after the accident when she had acute pain in her cervical spine associated with referred pain down both her shoulders. His examination of the cervical spine showed tenderness, restriction of rotation and minimum muscle spasm. In court Dr Mitra explained that this was a hyperextension injury: the ligament holding the front of the bone was tender and the joints at the back were injured and swollen and, as a result, had put pressure on the nerve and caused pain. Examination of her shoulders showed signs of impingement syndrome secondary to rotator cuff injury and restricted abduction on both her shoulders. An x-ray of her spine showed evidence of cervical spondylosis. The plaintiff was initially treated with muscle relaxant and neurobion (vitamin B).

5. Two days later, the plaintiff saw Dr Mitra again. By then she had started to experience right sided radiculopathy down to her upper right extremity. This meant that she had distribution of pain along the nerve root on that side. She also showed signs of diminished sensation in her right palm as well as tenderness over the right supraspinatous muscle (the muscle on the shoulder). She was treated with physiotherapy, analgesics and neurobion.

6. Dr Mitra reviewed the plaintiff in June 1999. By then she was showing signs of recovery. She had recovered from her acute pain from her cervical spine injury but it was his opinion that she would experience chronic pain secondary to disc degeneration. She might develop degenerated disc prolapse. Due to her cervical spine pathology she would find it painful to read, write and type and might develop facetal joint osteoarthritis in her cervical spine which may eventually lead to restricted movement of her cervical spine. Regarding her right shoulder, Dr Mitra opined that the tear of her supraspinatous muscle would be permanent and she would continue to suffer chronic pain in her right shoulder, though it might be intermittent. There was a possibility of extension of the tear and if so she would require surgical procedure to repair the torn muscle provided that conservative management failed.

7. In March 2001, Dr Mitra issued a letter in response to various queries from the plaintiff’s solicitors. He stated there that it would be difficult for him to predict when the plaintiff would require surgery for her cervical spine and her shoulder. The period of hospitalisation would be between three and five days for each operation. The estimated cost of surgery would be about $10,000 for the cervical spine injury and $8,000 for the shoulder. There was a risk of complications with the cervical spine operation but none with the shoulder surgery.

8. In court, Dr Mitra explained that as far as the shoulder surgery...

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