Koh Chai Kwang v Teo Ai Ling (by her next friend, Chua Wee Bee)
Judge | Chao Hick Tin JA |
Judgment Date | 20 May 2011 |
Neutral Citation | [2011] SGCA 23 |
Docket Number | Civil Appeal No 42 of 2010 |
Hearing Date | 22 October 2010,18 August 2010 |
Published date | 28 July 2011 |
Citation | [2011] SGCA 23 |
Year | 2011 |
Plaintiff Counsel | Madan Assomull and R Radikamalar d/o Rada Krishnan (Assomull & Partners) |
Defendant Counsel | Tang Gee Ni and Chris Chng Chai Leong (G N Tang & Co) |
Subject Matter | Damages,Measure of damages |
Court | Court of Three Judges (Singapore) |
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 belowThe 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
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
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
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:
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
For the record, the Respondent’s results at the Polytechnic were as follows:
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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
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...
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