Koh Chai Kwang v Teo Ai Ling (by her next friend, Chua Wee Bee)

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 20 May 2011
• Neutral Citation: [2011] SGCA 23
• Citation: [2011] SGCA 23
• Date: 20 May 2011
• Published date: 28 July 2011
• Plaintiff Counsel: Madan Assomull and R Radikamalar d/o Rada Krishnan (Assomull & Partners)
• Subject Matter: Measure of damages,Damages
• Defendant Counsel: Tang Gee Ni and Chris Chng Chai Leong (G N Tang & Co)
• Hearing Date: 18 August 2010,22 October 2010
• Docket Number: Civil Appeal No 42 of 2010

Chao Hick Tin JA (delivering the judgment of the court): Introduction

This is an appeal against an award of damages made in favour of the Respondent (the Plaintiff in the action) for the injuries suffered by her as a result of a motor accident.

On 12 July 2004, along Woodlands Avenue 3, the Appellant’s motorcycle collided into the Respondent, who sustained serious injuries. The Respondent was admitted to National University Hospital (“NUH”) and warded for 36 days after which she was transferred to Tan Tock Seng Rehabilitation Centre, where she remained for 51 days. She was thereafter given hospitalisation leave from 6 October 2004 until 13 August 2005, a period of more than ten months. By consent, interlocutory judgment was entered at 60% in favour of the Respondent.

The Respondent is now blind in the right eye as a result of her injuries. She was diagnosed with left facial weakness and also required surgery to correct hearing loss in her left ear. She also suffered cognitive dysfunction due to her brain injury, which will be the subject of further consideration below.

The Respondent had scored 243 for her PSLE and achieved seven “O” level passes (English: B3; Literature in English: C5; Combined Humanities: B4; Mathematics: A2; Additional Mathematics: B3; Chemistry: E8; Higher Chinese: C6). At the time of the accident, she was barely two weeks into her first year as a student of Business Studies at Ngee Ann Polytechnic (“the Polytechnic”). She deferred her studies as a result of the accident, and resumed her education three years later in 2007.

Decisions below

The Assistant Registrar (“the AR”) awarded general damages of $286,000 on a 100% basis, of which: (1) $70,000 was for the Respondent’s physical head injuries; (2) $25,000 was for the Respondent’s cognitive disabilities; and (3) $120,000 was for the Respondent’s loss of earning capacity (“LEC”). The AR reasoned that as the Respondent was still in school, an award of loss of future earnings (“LFE”), applying the multiplicand-multiplier formula, would be too speculative. By the time of the assessment of damages before the AR, the Respondent was in the fourth semester of her course for the Diploma of Business Studies (“the Diploma”).

The Respondent appealed against the AR’s decision for an increase in the awards for her physical head injuries and her cognitive disabilities, and for an award of LFE instead of only LEC, or, in the alternative, for the award for LEC to be increased. The Appellant cross-appealed and asked that the total award be reduced to $135,442.47.

In Teo Ai Ling (by her next friend Chua Wee Bee) v Koh Chai Kwang [2010] SGHC 54 (“the Judgment”), the Judicial Commissioner (“the Judge”) allowed the Respondent’s appeal in part by: (1) increasing the award for cognitive disabilities to $40,000; and (2) replacing the AR’s award for LEC with an award for LFE of $492,000. Costs of the appeals were ordered to be taxed if not agreed.

Issues in this appeal

In this appeal, the Appellant challenges both the substantive decisions of the Judge. Accordingly, in this judgment, we will, first, be examining the question of whether this is an appropriate case to award LFE, and if so, whether the quantum accorded by the Judge is reasonable. The second issue which we will consider is whether the sum of $40,000 awarded by the Judge for the Respondent’s cognitive disabilities is excessive.

The question of LFE and LEC

Recently, this court had the occasion to consider the law on LFE and LEC in the case of Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Samuel Chai”). There, this court clarified that LFE and LEC compensated different losses and, therefore, were not strictly alternative to each other. Citing Smith v Manchester Corporation [1974] 1 KIR 1 (“Smith”), it accepted the view that LFE referred to the difference between post-accident and pre-accident incomes or rates of income; and LEC addressed the loss arising from the weakening of the plaintiff’s competitive position in the open labour market, even though at the time of the assessment of damages the plaintiff was still in employment and did not suffer from any immediate loss of income.

As LFE and LEC are distinct and not alternate measures, a plaintiff would bear the burden of providing sufficient evidence for each of these heads of damages if claimed for. At the High Court, the Judge found that the Respondent had established a claim to LFE on the following bases (the Judgment at [54]): that, but for the accident, it was likely that the Respondent would pass the Polytechnic examinations and graduate with the Diploma; that, but for the accident, the Respondent would have gone on to attain a monthly gross pay of $1,610 which may reach a maximum of $6,600; and that, due to her injuries, the Respondent would probably be unable to complete the Polytechnic course.

It is, therefore, necessary for us to examine whether there was sufficient evidence for the Judge to have made those findings and, consequently, whether he was justified to hold that the Respondent was entitled to claim for LFE. Specifically, the issues which we would need to consider are these: whether there was sufficient evidence for the Judge to arrive at his findings: that the Respondent would have obtained the Diploma but for the injuries suffered from the accident; and that she would fail to obtain the Diploma due to the said injuries; and whether, considering the evidence that was before the court, the multiplicand-multiplier formula used by the Judge to calculate the Respondent’s loss was too speculative.

Was it likely that the Respondent, if not for the accident, would have passed the Polytechnic examinations and graduated with the Diploma?

On the evidence, it seems to us that there was no real dispute between the parties that the Respondent would likely have passed the Polytechnic examinations and graduated with the Diploma if not for the accident. Let us explain. We note that counsel for the Appellant had cross-examined the Respondent with the intention of showing that she would have passed the Polytechnic examinations in spite of her injuries, and this was commented upon by the Judge (the Judgment at [60]). For this appeal, the Appellant even submitted that the Respondent’s results showed that she had an equal, if not better, chance of passing the prescribed examinations after the accident. Therefore, we agree with the Judge that the Respondent, if not for the accident, would have graduated with the Diploma, given her academic results in both her PSLE and “O” Level examinations.

Was it likely that the Respondent would have failed the Polytechnic course due to her injuries?

For the record, the Respondent’s results at the Polytechnic were as follows:

Module	Credit Unit	Grade	Attempt	Remarks
Business Communication 1	4	D	1
Business Statistics	4	F	1	Repeat
Computing & Info Processing	4	C	1
Creativity and Applied Thinking Skills	2	A	1
Microeconomics	4	F	1	Repeat
Organisational Behaviour	4	D	1
Sports and Wellness	2	PX	1
Business Computing Applications	4	F	1	Repeat
Business Statistics	4	D	2
Individual and the Community	2	D	1
Life Management Skills	2	C	1
Microeconomics	4	D	2
Business Etiquette & Image	2	B	1
Business Law	4	F	1	Repeat
Business Management	4	D	1
Decision Support with Spreadsheets	4	D+	2
Macroeconomics	4	F	1	Repeat
Principles of Accounting	4	F	1	Repeat
Understanding Relationships: Love & Sexuality	2	C+	1

In a sense, the issue of whether or not it was likely that the Respondent would have failed the Polytechnic course due to her injuries had become academic by the time this appeal came up for hearing before the Judge as the Respondent had already failed to pass the prescribed examinations and would not be accorded the Diploma by the Polytechnic. Indeed, even before the AR rendered his decision, the Respondent sought to admit the fresh evidence that the Polytechnic had just announced that the Respondent had failed to pass the examination and would not be granted the Diploma. The AR refused to admit this fresh evidence on the ground of some other delays on the part of the Respondent and/or her counsel. Before the Judge, objection was taken by the Appellant to any reference to the fact that the Respondent had failed to obtain the Diploma. The argument, which was run by the Appellant before the AR and the Judge, was that notwithstanding the results of the Respondent’s examinations for the first four semesters at the Polytechnic, where she failed in a number of subjects, it was nevertheless probable that the Respondent would pass the Polytechnic course despite her cognitive disabilities for the following reasons: the Respondent had a remarkable determination to succeed; post-injuries, the Respondent had scored an A, a B, and several Cs in her three semesters at the Polytechnic; the Respondent was able to commute independently, use a handphone and a computer, and attend her classes and examinations; the Respondent had not sustained permanent disability; and it was unlikely that the Respondent had suffered or would suffer any deterioration of her intellectual functioning.

It seems to us that the question of whether the Respondent had suffered any impairment to her mental and intellectual faculties, which would impede her completing the Diploma course, must be determined in the light of the medical evidence as well as other relevant objective evidence. The points made by the Appellant in the...