Lai Wai Keong Eugene v Loo Wei Yen

JurisdictionSingapore
JudgeVinodh Coomaraswamy J
Judgment Date28 June 2013
Neutral Citation[2013] SGHC 123
CourtHigh Court (Singapore)
Hearing Date06 August 2012,06 December 2012
Docket NumberSuit No 727 of 2009 (Registrar’s Appeal No 273 of 2012)
Plaintiff CounselAnthony Wee and Pak Waltan (United Legal Alliance LLC)
Defendant CounselToh Kok Seng and Desmond Tan (Lee & Lee)
Subject MatterDamages,Assessment
Published date05 July 2013
Vinodh Coomaraswamy J: Background

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.1 As a result of the collision, the plaintiff is now a paraplegic with no sensation or motor control from his upper chest downwards.2 He sustained a complete spinal cord injury at T4/T5 level, multiple fractures of his thoracic spine, fractures of bilateral ribs, bilateral pneumothoraxes and a left haemothorax.3 He had a difficult post-operative recovery, which was complicated by pneumonia and by pressure sores at the sacral area.4 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.5

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.

In due course, the Assistant Registrar (“AR”) assessed the damages totalling $2,073,432.42. That sum comprised the following heads:6 Special damages assessed at $335,399.49; General damages: Pain and suffering and loss of amenity assessed at $200,000; Future medical expenses assessed at $486,000; Other future expenses (not including future medical expenses) assessed at $171,770; and Loss of future earnings assessed at $880,262.93.

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

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.

Submissions for the plaintiff

Plaintiff's counsel, Mr Anthony Wee, submitted to the AR that in assessing LFE:

. . . although everyone thinks that the conventional approach is the only way in which loss of future earnings should be assessed, this misconception is nothing more than a myth and is further away from the truth than most people think. The Court is really only bound by one, and only one, principle – the simple concept of restitutio in integrum. The way in which this goal is reached is unfettered. The Plaintiff is therefore asking Your Honour to depart from adopting the conventional approach”.7

[Emphasis original]

In order to achieve restitutio in integrum for this plaintiff for his lost future earnings, Mr Wee submitted to the AR that the court should depart from the conventional approach in two ways: First, and most importantly, Mr Wee argued that the AR should not select a multiplier by reference to multipliers applied in previously-decided cases involving similarly-situated plaintiffs. Instead, Mr Wee urged the AR to assess the plaintiff’s damages by reference to the present value of the plaintiff’s lost income for each year over the entirety of his remaining working life. These calculations were set out in tables prepared by the plaintiff’s accounting expert, Mr Foong Daw Ching.8 Mr Wee argued it was open to the AR to adopt this approach in this case because Mr Foong’s evidence enabled the court to assess – more accurately than the conventional approach permits – what the actual LFE of this plaintiff would have been over his actual remaining working life.9 Mr Wee submitted that the next step for the AR was to discount this actual LFE for the vicissitudes of life, having regard to a case decided in Singapore and to authoritative and standardised actuarial tables known as the Ogden Tables used in England to assess damages for personal injuries.10 Second, Mr Wee argued that the court should not adopt a single multiplicand11 because to do so would disregard this plaintiff’s proven prospects of promotion over his working life. The plaintiff’s date of birth being 22 July 1972,12 he was aged 34 at the time of his injuries. He then held the post of Senior Logistics Executive (“SLE”) at DHL Supply Chain Singapore Pte Ltd (“DHL”).13 His monthly salary was $3,469.14 Mr Wee argued that the evidence established: (1) that the plaintiff would as a certainty be promoted to Assistant Manager (“AM”) at the age of 36 or 37; (2) that he had great potential to be promoted to Manager between the ages of 39 and 42; (3) that he would reach the post of Senior Manager between the ages of 44 and 47; and (4) that he would hold that post until retirement at the age of 65.15 Mr Foong in his present value table therefore factored in increments in salary of 3% to 4% per annum banded together over 4-year periods projecting that the plaintiff would have retired on 22 July 2037 drawing an annual salary of about $112,000.16

Applying the approach which he advocated, Mr Wee invited the AR to award the plaintiff $1,823,034.60 for LFE.17 Alternatively, if the AR preferred the conventional approach, Mr Wee submitted that the appropriate multiplier should be 21 years with a varying multiplicand to reflect the plaintiff’s promotions over his remaining working life, yielding an award for LFE of $1,814,574.45.18 Underlying both figures was the assumption that, but for his injuries, the plaintiff would have continued earning an income until age 65.19

Mr Wee also sought an award of $858,00020 for the plaintiff’s future medical expenses. Mr Wee accepted the use of the conventional approach for assessing future medical expenses because he had not adduced present value evidence for this head of loss.21 The plaintiff’s claim for future medical expenses comprised 3 elements. For 2 of the 3 elements, Mr Wee applied a multiplier of 22 years.22 He derived that multiplier by discounting the plaintiff’s remaining 30 years of life by 25%.23 For the third element, Mr Wee applied the same discount of 25%, but this time directly to the future expense as a lump sum rather than to a multiplier.24

The AR’s decision

The AR declined to depart from the conventional approach in assessing LFE, holding as follows at [16] of his grounds of decision:

“I agree with the plaintiff that the principle of [restitutio] in integrum underlies the assessment of damages for personal injuries and death. But with respect, I cannot agree that the approach adopted by the court to achieve [restitutio] in integrum is “unfettered”. It is clear from Tay Cheng Yan, a case which the plaintiff had himself relied upon, that the Court of Appeal, while agreeing that there is nothing wrong in law or in principle with the use of actuarial tables, . . . made a policy decision to prefer the use of the direct application method, ie, the conventional approach taking into account the “interests of uniformity and clarity of legal practice in Singapore” and the “comprehensive familiarity of our courts and practitioners” with the conventional approach. I therefore find that there is no reason for the court not to adopt the conventional approach in assessing the loss of future income of the plaintiff in this case.”

The AR therefore disregarded Mr Foong’s present value tables.25 He applied the conventional approach. He selected a multiplier of 13.26 He did so by having regard to comparable cases, to the plaintiff’s age (39 years at the date of assessment) and to the statutory minimum retirement age (62 years stipulated by s 4(1) of the Retirement and Re-employment Act (Cap 274A, 2000 Rev Ed)).27 This multiplier, of course, does not represent actual years but notional discounted years. To avoid confusion, I will therefore refer to the components of this multiplier as multiplier units rather than years.

The AR accepted Mr Wee’s submission that the multiplier should be split, holding that that approach was consistent with existing case law28 and, in any event, not disputed by the defendant.29 The AR therefore split the multiplier into three segments – representing three periods of the plaintiff’s working life – and applied an increased multiplicand to each segment to reflect what he found to be the plaintiff’s promotion and salary increment prospects.

In arriving at the multiplicand, the AR first accepted the plaintiff’s submission that, based on case law, the deduction for income tax should be 2.5%.30 He then accepted the defendant’s submission that the plaintiff would, despite his injuries, be capable of earning some income in future through sedentary work. The AR found that that net income would be $600 per month31 and further found that the plaintiff would be capable earning that net income on and after the 6th multiplier unit.32

The AR then considered the plaintiff’s prospects of promotion. He found that the plaintiff was likely to have remained a SLE for 2 multiplier units, then promoted to AM for a further 8 multiplier units and further promoted to Manager for the final 3 multiplier units. He therefore arrived at a total award for LFE of $880,262.93.33 Although he did not tabulate it in this manner, this is how he arrived at that figure:

Unit Job title Before tax future earnings without injury Tax on future earnings at 2.5% Net future earnings without injury Net future earnings with injury Lost future earnings
1 SLE $58,137.15 $1,453.43 $56,683.72 $0 $56,683.72
2 SLE $58,137.15 $1,453.43 $56,683.72 $0 $56,683.72
3 AM $70,469.70 $1,761.74 $68,707.96 $0 $68,707.96
4 AM $70,469.70 $1,761.74 $68,707.96 $0 $68,707.96
5 AM $70,469.70 $1,761.74 $68,707.96 $0 $68,707.96
6 AM $70,469.70 $1,761.74 $68,707.96 $72
...

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1 cases
  • Lai Wai Keong Eugene v Loo Wei Yen
    • Singapore
    • High Court (Singapore)
    • 28 June 2013
    ...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 assess......

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