Lai Wai Keong Eugene v Loo Wei Yen

• Jurisdiction: Singapore
• Judgment Date: 28 June 2013
• Date: 28 June 2013
• Docket Number: Suit No 727 of 2009 (Registrar's Appeal No 273 of 2012)
• Court: High Court (Singapore)

Lai Wai Keong Eugene

Plaintiff

and

Loo Wei Yen

Defendant

[2013] SGHC 123

Vinodh Coomaraswamy J

Suit No 727 of 2009 (Registrar's Appeal No 273 of 2012)

High Court

Damages—Assessment—Assessment of damages for loss of future earnings—Whether departure warranted from conventional approach of assessing such damages using discounted multiplier determined by reference to previously-decided cases and multiplicand—Whether open to court of first instance to depart from conventional approach and to discount award separately for accelerated receipt and for vicissitudes of life

Damages—Assessment—Multiplier for future medical expenses—Whether multiplier used by registrar comparable with multipliers used in comparable cases

Damages—Assessment—Multiplier for loss of future earnings—Whether multiplier used by registrar comparable with multipliers used in comparable cases

The plaintiff suffered spinal injuries which rendered him a paraplegic. The defendant consented to interlocutory judgment with damages to be assessed, accepting 90% liability for the plaintiff's injuries. The assistant registrar (‘the AR’) calculated the damages for loss of future earnings and for future medical expenses by using the conventional multiplier/multiplicand method.

The plaintiff appealed against the AR's award in respect of lost future earnings (‘LFE’) and future medical expenses. In respect of the former, he argued that the AR should not have applied the conventional approach. The plaintiff's proposed approach was instead to (a) compute the total value of the plaintiff's lost earnings until his retirement age; (b) calculate the present value of that future income stream using a discount rate of 1%; and (c) finally, discount the present value further to account for vicissitudes of life. The plaintiff submitted that this second discount should be 10%, relying on a set of authoritative and standardised actuarial tables used in England to assess damages for personal injuries (‘Ogden Tables’) and the decision of the High Court in Shaw Linda Gillian v Chai Kang Wei Samuel[2009] SGHC 187. The plaintiff argued that the Court of Appeal's decision in Poh Huat Heng Corp Pte Ltd v Hafizul Islam Kofil Uddin[2012] 3 SLR 1003 (‘Hafizul’) paved the way for a court of first instance to depart from the conventional approach to calculating damages for future pecuniary loss and to adopt the plaintiff's proposed approach instead.

In respect of future medical expenses, the plaintiff accepted the use of the conventional approach, but contended that the AR's selected multiplier of 15 was too low.

Held, dismissing the appeal:

(1) The Court of Appeal in Hafizul did not authorise courts of first instance to depart from the conventional approach to calculating damages for future pecuniary loss, but instead endorsed and clarified the conventional approach. The Court there endorsed the use of present value calculations as a cross-check for the conventional approach, and not as a substitute for it: at [36] and [47] to [49] .

(2) The decision in Hafizul clarified that multipliers had a degree of flexibility, permitting courts of first instance to revise multipliers incrementally. Hafizul did not, however, authorise courts of first instance to revise multipliers substantially so that awards under the conventional approach could become equivalent in value to awards under the plaintiff's proposed approach: at [50] .

(3) The English and Hong Kong positions on calculation of LFE did not assist the plaintiff's case. The English approach of using actuarial tables to calculate LFE was facilitated by developments unique to the United Kingdom. These included the availability of index-linked government stocks, a discount rate prescribed by subsidiary legislation, the availability of standardised and authoritative actuarial tables in the form of the Ogden Tables and legislation to render the Ogden tables admissible in evidence. None of these developments had taken place in Singapore: at [51] to [54] .

(4) There were difficulties in principle with adopting the plaintiff's proposed approach to calculating LFE. Without recourse to actuarial data or previously-decided cases, applying a discount separately for the vicissitudes of life would be entirely arbitrary. Requiring tort plaintiffs to adduce expert actuarial evidence in each case would also greatly increase litigation costs and complexity, without necessarily leading to a more accurate approximation of restitutio in integrum: at [62] to [65] .

(5) Unbundling the embedded components of the discount built into the multiplier under the conventional approach involved policy-laden determinations as to the allocation of the inevitable risk of inaccurate compensation as between tort plaintiffs as a class and tort defendants as a class. Adopting the plaintiff's proposed approach would amount to an increase in the level of LFE awards across the board. A court of first instance was not the appropriate forum to effect such an increase: at [67] to [70] and [73] .

(6) Applying the conventional approach, the AR's choice of a 13-year multiplier for the LFE award was in line with previously-decided cases, whereas the plaintiff's suggested multiplier of 21 years was substantially higher. The AR's award for LFE would not be varied: at [82] .

(7) The AR's choice of a 15-year multiplier in respect of the award for future medical expenses was reasonable and in line with precedent. The award for future medical expenses would not be varied: at [90] and [91] .

Ang Leng Hock v Leo Ee An [2003] SGHC 240 (refd)

Ang Leng Hock v Leo Ee Ah [2004] 2 SLR (R) 361; [2004] 2 SLR 361 (refd)

Balanalagirisamy Gowri Rajeswari v Wong Si Wah [2009] 1 SLR (R) 819; [2009] 1 SLR 819 (refd)

Bresatz v Przibilla (1962) 108 CLR 541 (refd)

Chen Qingrui v Phua Geok Leng [2001] SGHC 64 (refd)

Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (refd)

Chan Pui-ki v Leung On [1996] 2 HKLR 401 (refd)

Chin Swey Min v Nor Nizar bin Mohamed [2004] SGHC 27 (refd)

Cookson v Knowles [1979] AC 556 (refd)

Dylan Simon v Manuel Paul Helmot [2012] UKPC 5 (refd)

Ho Yiu v Lim Peng Seng [2004] 4 SLR (R) 675; [2004] 4 SLR 675 (refd)

Koh Chai Kwang v Teo Ai Ling [2011] 3 SLR 610 (folld)

Lai Wee Lian v Singapore Bus Service (1978) Ltd [1983-1984] SLR (R) 388; [1984-1985] SLR 10 (folld)

Lee Teck Nam v Kang Hock Seng Paul [2005] 4 SLR (R) 14; [2005] 4 SLR 14 (folld)

Lee Wei Kong v Ng Siok Tong [2012] 2 SLR 85 (refd)

Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 (refd)

Lim Yee Ming v Ubin Lagoon Resort Pte Ltd [2003] SGHC 134 (refd)

Ng Song Leng v Soh Kim Seng Engineering & Trading Pte Ltd [1997] SGHC 289 (refd)

Paul v Rendell (1981) 55 ALJR 371 (refd)

Poh Huat Heng Corp Pte Ltd v Hafizul Islam Kofil Uddin [2012] 3 SLR 1003 (folld)

Shaw Linda Gillian v Chai Kang Wei Samuel [2009] SGHC 187 (refd)

Tan Juay Mui v Sher Kuan Hock [2012] 3 SLR 496 (refd)

Tay Cheng Yan v Tock Hua Bin [1992] 1 SLR (R) 779; [1992] 1 SLR 761 (folld)

Taylor v O'Connor [1971] AC 115 (refd)

Teo Ai Ling v Koh Chai Kwang [2010] 2 SLR 1037 (refd)

Teo Seng Kiat v Goh Hwa Teck [2003] 1 SLR (R) 333; [2003] 1 SLR 333 (refd)

Toh Wai Sie v Ranjendran s/o G Selamuthu [2012] SGHC 33 (refd)

TV Media Pte Ltd v De Cruz Andrea Heidi [2004] 3 SLR (R) 543; [2004] 3 SLR 543 (refd)

Wells v Wells [1999] 1 AC 345 (refd)

Retirement and Re-employment Act (Cap 274 A, 2000 Rev Ed) s 4 (1)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) First Schedule para 17

Civil Evidence Act 1995 (c 38) (UK) s 10

Damages Act 1996 (c 48) (UK) s 1 (1)

Anthony Wee and Pak Waltan (United Legal Alliance LLC) for the plaintiff

Toh Kok Seng and Desmond Tan (Lee & Lee) for the defendant.

Vinodh Coomaraswamy J

Background

1 The plaintiff, Lai Wai Keong Eugene, suffered catastrophic and life-changing injuries on 12 April 2007 in a collision between his motorcycle and a car driven by the defendant. As a result of the collision, the plaintiff is now a paraplegic with no sensation or motor control from his upper chest downwards. He sustained a complete spinal cord injury at T 4/T 5 level, multiple fractures of his thoracic spine, fractures of bilateral ribs, bilateral pneumothoraxes and a left haemothorax. He had a difficult post-operative recovery, which was complicated by pneumonia and by pressure sores at the sacral area. He continues to suffer multiple disabilities arising from paraplegia. These include incontinence, frequent skin breakdown sometimes requiring surgical intervention, multiple episodes of urinary tract infection, permanent loss of sexual function, recurring bouts of muscle spasms and low blood pressure.

2 The plaintiff commenced an action against the defendant on 25 August 2009 seeking damages for negligence. The defendant consented to interlocutory judgment with damages to be assessed, accepting 90% liability for the plaintiff's injuries.

3 In due course, the assistant registrar (‘the AR’) assessed the damages totalling $2,073,432.42. That sum comprised the following heads (see the AR's grounds of decision (‘GD’) at [55]) :

(a) special damages assessed at $335,399.49;

(b) general damages:

(i) pain and suffering and loss of amenity assessed at $200,000;

(ii) future medical expenses assessed at $486,000;

(iii) other future expenses (not including future medical expenses) assessed at $171,770; and

(iv) loss of future earnings assessed at $880,262.93.

4 The plaintiff appealed against the AR's award on only two of these heads: loss of future earnings (‘LFE’) and future medical expenses. The appeal came before me. I dismissed the appeal. The plaintiff has appealed to the Court of Appeal. I now give my reasons.

The proceedings below

5 As before me, the central dispute at the assessment of damages before the AR focused on the plaintiff's claims for LFE and for future medical expenses.

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