Lai Mok @ Lee Peng Sung v SBS Transit Ltd and another

• Jurisdiction: Singapore
• Judge: Tan May Tee
• Judgment Date: 06 July 2020
• Neutral Citation: [2020] SGDC 151
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 3267 of 2016, Registrar’s Appeal No DC/RA 10 of 2020
• Published date: 25 July 2020
• Year: 2020
• Hearing Date: 20 April 2020,10 March 2020
• Plaintiff Counsel: Ms Vivienne Sandhu and Ms Chow Jia Ying (Clifford Law LLP)
• Defendant Counsel: Mr Sham Chee Kiat (Ramdas & Wong)
• Subject Matter: Tort,Negligence,Damages,Loss of earning capacity
• Citation: [2020] SGDC 151

District Judge Tan May Tee: Introduction

This is the plaintiff’s appeal from the decision of a deputy registrar (“DR”) given on 15 January 2020 in an assessment of damages arising from personal injuries sustained in a road traffic accident. The appeal is against two orders made by the DR, namely: (a) that the plaintiff be awarded $10,000 for loss of earning capacity (“LEC”); and (b) that the defendant pay the plaintiff costs of the action fixed at $18,000 plus GST and disbursements to be agreed, if not, taxed¹.

The plaintiff seeks an increase in the sums awarded by the DR as set out in the following table:

Head of claim	DR’s award	Appeal
LEC	$10,000	Award to be increased to $110,000
Party and party costs to be paid to the plaintiff by the defendants	$18,000 plus GST	To be increased to $35,000 plus GST

Background

This is how the accident happened. On 16 July 2015, the plaintiff was travelling to work on the first defendant’s bus which was driven at the material time by the second defendant. He was standing at the exit door of the bus when it suddenly braked causing him to fall. He sustained injuries to his head as well as a subtrochanteric fracture to his right femur. He was conveyed to the National University Hospital where he underwent surgery to repair the fractured femur. Due to non-union of the fracture – one of the screws had backed out for the bone – he had to undergo a second procedure which involved bone grafting after which he made good recovery.

The trial of the action on the issue of liability concluded on 24 May 2018 with interlocutory judgment being entered in the plaintiff’s favour at 70%. He was found contributorily negligent at 30% due to his failure to hold on to the grab poles on the bus at the material time.

For the assessment of damages, the plaintiff filed one affidavit of evidence-in-chief² (“AEIC”) on 5 October 2018. He set out his various claims and elaborated inter alia on his hospitalisation and treatment, his residual disabilities, his medical and transport expenses and loss of earnings.

For his claim for LEC and/or loss of future earnings (“LFE”), he stated that he was 66 years old when the accident occurred. He was then working as a shipyard supervisor under a one-year re-employment contract³ with a company called Heinen & Hopman Engineering Singapore Pte Ltd (“the Company”) which started on 1 June 2015. His basic monthly salary was $3,280 with a fixed allowance of $600, and he was also entitled to overtime pay. His work was essentially physical in nature and he was frequently working outdoors⁴.

He explained further his employment experience and aspirations as follows⁵: 47. I started working for the Company on 16 February 1993. Up until the end of my employment with the Company on 31 May 2016, I have worked more than 23 years for the Company. I have even won a long service award at the Company, and a letter from the Company stating the same dated 10 November 2014 is exhibited herein. 48. As such, when I approached the retirement age of 65, the Company offered me a re-contract. This was because the Company deeply valued my experience and contribution towards them in light of my long service with them, and wanted me to continue helping them with my expertise even up till the age of 75. A letter from the Company dated 12 January 2017, stating that the Company would have offered recontracts with me until the age of 75 is exhibited herein. 49. I would like to inform this Honourable Court that I enjoyed my job and I appreciate the recognition that the Company gave towards my service for the Company. Hence, I accepted the re-contract, and had planned even to continue to work for the Company for as long as my health allowed. This meant that I would have worked till the age of 75.

In the specialist medical reports⁶ tendered by the plaintiff, the evidence from the medical experts showed that the injuries had left him with permanent limitations to his functional ability to perform a physically demanding job. He was clinically observed to walk with an antalgic gait and found to have a restricted range of motion in his right hip.

Due to his injuries, the plaintiff could not return to work. He was on continuous medical leave of 355 days from the date of the accident up to 30 June 2016⁷. The one-year re-employment contract which he had until 31 May 2016 was not renewed. The plaintiff has been unemployed since the expiry of his re-employment contract.

Besides his re-employment contract, the plaintiff exhibited in his AEIC two letters from the Company which became a bone of contention between the parties. The first letter⁸ was dated 18 May 2016 (“First Letter”) and it was addressed to the plaintiff informing him of the non-renewal of his employment contract ending 31 May 2016 as follows:

“As you may know, due to the downturn of the economy, our ongoing projects are slowing down and no new projects secured at this moment. The Management has decided not to renew your contract at this time. We appreciate your valuable contributions to the organization.”

The second letter dated 12 January 2017 (“Second Letter”) was addressed to the plaintiff’s solicitors, and it stated as follows:

Mr Lee Peng Sung had worked for our company, Heinen & Hopman Engineering Singapore Pte Ltd from 16th February 1993 to 31st May 2016 before his tenure was being cut short by the unfortunate accident.

Throughout his service with us, Mr Lee has been an exceptional employee, bringing along with him invaluable experience and expertise for the company. Rising through the ranks to reach his last role as a Supervisor, Mr Lee has also been a great mentor to his peers in the workplace.

Although he had already reached his retirement age, we extended his contract with the company as we continue to need his guidance and expertise in all of our current projects. Health condition permitting, we would have wanted to offer re-contracts with Mr Lee until the age of 75.

It is indeed a great loss to our company that we can no longer engage his services due to this sudden accident. We wish him the best as he continues with his rehabilitation journey.

The two letters appeared to have been signed by different directors of the Company⁹ although the signatory of the second letter was also named in the first letter. In his AEIC, the plaintiff had made no mention of the first letter although he had included it as part of the documents exhibited therein.

The assessment of damages hearing and the DR’s decision

At the assessment of damages before the DR, no witnesses were called. The DR was informed that the parties had reached agreement on the various heads of claim save for LFE. They had agreed to dispense with the attendance of witnesses and the assessment proceeded with the DR hearing only the parties’ respective submissions. Subsequently, the DR directed that further written submissions be filed on the issue of whether LEC should be awarded in lieu of LFE, and if so, what should be the appropriate sum¹⁰.

After considering the further submissions, the DR delivered his oral judgment in which he stated and explained his finding that the plaintiff had failed to discharge his burden of proof in relation to his claim for LFE¹¹.

In his analysis of the plaintiff’s claim for LFE, the DR had ruled that the Second Letter from the Company which the plaintiff relied on to prove that he would have remained employed but for the accident was hearsay. The DR noted in this regard that the plaintiff had failed to file the requisite notice to admit hearsay pursuant to O 38 r 4. Further, this Second Letter was somewhat contradicted by the First Letter dated 18 May 2016 which attributed the Company’s decision not to renew the plaintiff’s contract to a downturn in the economy rather than the plaintiff’s health condition. Since the plaintiff had failed to call the employer as a witness, it was not possible to assess the credibility of the two apparently contradictory statements given by the employer at different times. The DR was nonetheless inclined to accord more weight to the First Letter which was issued contemporaneously whereas it was not clear under what circumstances the Second Letter had been issued. It was also significant that the second letter made no reference to the First Letter when they were both signed by the same director.

The DR found that the plaintiff’s case for LFE was deficient as he had adduced no evidence of what would have been his income post-accident. There was no mention of the terms on which his contract would have been renewed. Neither was there any evidence led as to what alternative employment the plaintiff could be engaged in based on his post-accident condition. Due to the dearth of evidence, the DR was unable to properly assess what would have been the plaintiff’s post-accident income. Hence, the LFE claim was rejected.

On the basis that the court has the discretion to award damages for LEC in lieu of LFE, the DR went on to rule that given the unchallenged medical evidence, the plaintiff’s injuries would prevent him from competing in the market for his pre-accident job.

As regards the quantum for LEC¹², the DR felt that he was constrained by case precedents. Taking the plaintiff’s advanced age of 70 years to be the central consideration and according some weight to the fact that, at the time of the accident, the plaintiff had continued to work way past the statutory retirement age and his desire to continue working until 75 years of age had he not met with the accident, the DR awarded LEC in the sum of $10,000. In coming to his decision, the DR referred to four cases where the plaintiffs were also past retirement age, namely: Ting Heng Mee v Sin Sheng Fresh Fruits [2004] SGHC 43; Lee Mui Yeng v Ng Tong Yoo [2016] SGHC 46; Wong Yok Moy nee Teow Yok Moy v Ang Lay Tin & Anor (DC Suit No. 559...