Krishnamoorthy S/O Chellappan v Ramasamy Arivazhagan

• Jurisdiction: Singapore
• Judge: Hairul Hakkim
• Judgment Date: 15 December 2021
• Neutral Citation: [2021] SGDC 283
• Court: District Court (Singapore)
• Hearing Date: 18 October 2021,25 February 2021,06 September 2019,15 June 2021,20 September 2021,03 September 2020,29 May 2019,18 August 2020,23 December 2019
• Docket Number: District Court Suit No 850 of 2017, Assessment of Damages No 264 of 2018
• Plaintiff Counsel: S. Magintharan and Liew Boon Kwee, James (Essex LLC)
• Defendant Counsel: Patrick Yeo and Ooi Jingyu (Huang Jingyu) (Withers KhattarWong)
• Subject Matter: Damages,Assessment,Opening statement,Tort,Negligence,Causation,Legal effect of entering interlocutory judgment,Measure of damages,Personal injuries cases,Quantum,Loss of amenities,Pre-trial loss of earnings,Statement of special damages,Loss of earning capacity,Applicability of the Actuarial Tables for the Assessment of Damages in Personal Injury and Death Claims,Commencement date
• Published date: 04 January 2022

Deputy Registrar Hairul Hakkim: Introduction

The plaintiff’s claim arises out of a road traffic accident (“the Accident”) that occurred on 12 July 2015 when his motorcar was collided into by a motor lorry driven by the defendant.¹

By consent, interlocutory judgment (“IJ”) in favour of the plaintiff was entered on 28 March 2018 for the defendant to pay 95% of the plaintiff’s damages to be assessed, with costs to be reserved to the registrar hearing the assessment (“the AD Hearing”).

I conducted the AD Hearing over seven half-day tranches from 29 May 2019 to 15 June 2021 where the following witnesses gave oral evidence: the plaintiff; two medical experts appointed by the plaintiff, namely Prof Prem Kumar (“Prof Kumar”) and Dr Lee Keng Thiam (“Dr Lee”); and the defendant’s sole medical expert, Dr W C Chang (“Dr Chang”).

Overview of plaintiff’s claims

The plaintiff claims for a total sum of $384,893.03 in the AD Hearing, which is broken down into various heads of claims as follows:² general damages: pain and suffering for neck injury: $14,000; pain and suffering for left shoulder injury: $10,000; pain and suffering for right shoulder rotator cuff tear: $15,000; pain and suffering for surgical scars: $3,000; loss of amenities: $10,000; future medical expenses: $28,031.33; and loss of future earning (“LFE”): $204,793 or alternatively, $136,920; or loss of earning capacity (“LEC”): $204,793 or alternatively, $70,000. special damages: medical expenses: $8,234.35; transport expenses: $500; pre-trial loss of earnings for unpaid hospitalisation leave: $550 (agreed); and additional pre-trial loss of earnings from 13 May 2019 to 15 June 2021: $40,750.

It is evident that the plaintiff’s total submissions on quantum exceed the jurisdiction of $250,000 provided for the District Court under s 19(4)(a) read with s 2 of the State Courts Act (Cap 321, 2007 Rev Ed) (“the State Courts Act”). The case was not originally commenced in the High Court before being transferred to the District Court as part of the enhanced jurisdiction of the District Court for personal injury cases under s 2(a) of the Supreme Court of Judicature (Transfer of Specified Proceedings to District Court) Order 2016 (Cap 322, S 597/2016). There is also no agreement to enlarge the court’s jurisdiction under s 23 of the State Courts Act. In the circumstances, even if the plaintiff succeeds in proving his entitlement to each head of claim itemised above, the maximum amount he can recover from the defendant in the AD Hearing is $250,000.

I mention this at the outset because the plaintiff had only claimed for a total sum of $101,555.68 in the Joint Opening Statement (“JOS”) that was dated 29 May 2019 (ie, the date of the first tranche of the AD Hearing). Pertinently, this sum is significantly lower than the eventual submissions on quantum (ie, $384,893.03) made by the plaintiff in his closing submissions. While some departure from the opening statements may be tolerable on account of genuine errors, the departure in the present case must be specifically called out. Not only have certain claims been inflated by the plaintiff since the filing of the JOS (which was not at any point amended before the AD Hearing concluded), but also the plaintiff has now added fresh claims such as loss of amenities and additional pre-trial loss of earnings.

The purpose of an opening statement is to provide notice to opposing counsel in preparing for the trial as well as serve as the lodestar for the judge in assessing the evidence. Based on the opening statement and the claims and issues identified therein, the court would be able to focus on the evidence tendered, make the appropriate rulings on evidential objections, and ask the necessary questions to close gaps. However, where claims have been left out without good reasons and suddenly introduced only at the stage of closing submissions, dismissal of such claims may be warranted in appropriate cases.

In the recent decision of Radhakrishnan Naidu s/o Balram v Esa’ri bin Samad [2021] SGDC 103, DR Chua Wei Yuan disallowed a claim for future psychiatric treatment on the basis that the plaintiff had not claimed for the same in the opening statement (at [176]). This aspect of the decision was upheld on Registrar’s Appeal by DJ Toh Yung Cheong in Radhakrishnan Naidu s/o Balram v Esa’ri bin Samad [2021] SGDC 246 at [58]. As a further appeal to the High Court has been made against this decision which has not yet been concluded, I refrain from relying on this case in my decision. Instead, in my reasons that follow, I have dismissed some of the claims made by the plaintiff on the basis that these had not been pleaded and/or on the merits. Nevertheless, my preliminary observations made above remain relevant for the broader point that claims referenced in a party’s opening statement should not be inflated without good reasons in the closing submissions.

Overarching issue on causation

Before I deal with the plaintiff’s claims for assessment, there is an overarching argument I must address. In the plaintiff’s closing submissions, the plaintiff contends that the defendant is estopped from arguing that certain injuries alleged by the plaintiff were caused by the Accident because of the IJ, citing the decision of the Court of Appeal in Tan Woo Thian v PricewaterhouseCoopers Advisory Services Pte Ltd [2021] 1 SLR 1166 (“Tan Woo Thian”).³ As I wished to consider this issue further, I invited parties to tender further written submissions on this issue. Having read the further submissions, I find that the plaintiff’s argument on causation is misguided. I will now elaborate further.

The plaintiff primarily relies on the following passages in Tan Woo Thian to argue that the IJ estops the defendant from arguing a lack of causation in the AD Hearing: 6 … A cause of action in negligence is inchoate absent evidence of actual loss. This is distinct from the question of what the precise quantum of such loss is. The appellant’s sole argument on causation, as set out in his Appellant’s Case at [94], was that the trial was bifurcated between liability and quantum, and that the case should go for assessment of damages if breach of a duty of care was made out. 7 The appellant’s contention in this regard is, with respect, incorrect. It wrongly conflates the separate questions of whether the appellant is able to establish that the respondent’s breach has caused loss, with the quantum of that loss. In order to even make out the tort of negligence, it must first be shown that the defendant’s breach has in fact caused loss. As observed in Winfield & Jolowicz on Tort (Sweet & Maxwell, 19th Ed, 2014) at para 7-002:

Even if the claimant proves every other element in tortious liability he will lose the action or, in the case of torts actionable per se, normally fail to recover more than nominal damages, if what the defendant did is not treated as a legal cause of his loss. This issue is logically distinct from and anterior to the question of measure of damages which will be dealt with at a later stage. Thus, in one of the leading cases, the issue was whether the defendants were liable for fire damage to a wharf which arose from a rather unusual chain of events after the defendants spilled oil into a harbour. If they had been liable (in fact they were not) the prima facie measure of damages would have been the cost of repairing the wharf plus consequential losses like loss of business … [emphasis added in bold italics]

8 It follows from this that if, and to the extent, the trial had been bifurcated between liability and quantum, then the plaintiff would not have been obliged to adduce evidence at the liability stage of the trial as to the quantification of the losses and injuries he claims he suffered. But, he would nonetheless have been obliged to show that he did, in fact, suffer one or more types of loss that was causally connected to the alleged breach.

[emphasis in original]

The question of whether the decision in Tan Woo Thian precludes a party from mounting an argument of lack of causation at the hearing for assessment of damages has been recently considered by DR Lewis Tan in Lim Mei Choo (Lin Meizhu) v Muhammad Azham bin Razak (Direct Asia Insurance (Singapore) Pte Ltd, intervener) [2021] SGMC 74 (“Lim Mei Choo”). DR Tan, after noting the decision in Tan Woo Thian, discussed several cases (including personal injury cases) where causation of damages was considered by the courts at the assessment stage of proceedings (see Lim Mei Choo at [11]–[16]). Eventually, DR Tan concluded as follows: 20 …[C]ausation is an essential element of liability for claims in negligence, and so it would be incongruent for a defendant to dispute causation entirely (ie, as regards all heads of claim in negligence) at the assessment stage given that the interlocutory judgment entered by this stage would necessitate that some damage and/or loss was caused by the defendant’s negligence. Nonetheless, the defendant may continue to dispute causation as to certain (but not all) heads of claims at the assessment stage (see the authorities discussed at [12]–[16] above). … 21 In this case, while the Intervener disputes causation as regards most heads of claim, it is undisputed that the Plaintiff should at least be entitled to the costs of her initial consultation with Dr Tan. This amounts to an implicit acceptance that at least some loss or damage was caused by the Defendant’s negligence, and is consistent with the Plaintiff’s Statement of Claim, where she claims for medical and transport expenses under her “Particulars for Loss and Damage”. This accords with the authorities discussed above, which show that causation can reasonably be disputed at the assessment of damages phase as long as at least some damage or loss was caused by the defendant’s negligence. …

[emphasis in original in...