Lau Keuk Ling William Ignatius v Chan Chun Sheng Gary (NTUC Income Insurance Co-operative Limited, intervener)

• Court: High Court Appellate Division (Singapore)
• Judge: Quentin Loh JAD
• Judgment Date: 01 April 2022
• Neutral Citation: [2022] SGHC(A) 14
• Citation: [2022] SGHC(A) 14
• Docket Number: Civil Appeal No 81 of 2021
• Published date: 06 April 2022
• Plaintiff Counsel: Han Hean Juan and Lu Zhao Bo Yu (Hoh Law Corporation)
• Defendant Counsel: The respondent absent and unrepresented,Yeo Kim Hai Patrick, Lim Hui Ying and Ooi Jingyu (Legal Solutions LLC)
• Subject Matter: Damages,Assessment,Measure of damages,Personal injuries cases
• Hearing Date: 10 February 2022

Quentin Loh JAD (delivering the judgment of the court): Background facts

Mr Lau Keuk Ling William Ignatius, the “appellant”, being dissatisfied with the quantum of damages awarded to him below, appeals against the various aspects of the damages awarded or disallowed by the learned trial judge (the “Judge”) in Lau Keuk Ling William Ignatius v Chan Chun Sheng Gary [2021] SGHC 184 (the “Judgment”).

The appellant was injured in a road traffic accident on 14 February 2017 when a car, driven by Mr Chan Chun Sheng Gary (the “respondent”) at high speed, collided into the rear of the appellant’s stationary car. This caused the appellant’s car to collide into the rear of the stationary lorry in front; both these vehicles were at a traffic light-controlled junction awaiting the green light. The appellant suffered, inter alia, neck and head injuries.

The respondent failed to cooperate with his motor insurer, NTUC Income Cooperative Limited, or take any part in the proceedings. On 11 July 2019, interlocutory judgment was entered with damages to be assessed. The respondent’s insurer, repudiated liability to indemnify the respondent but nonetheless intervened in the action (the “intervener”) as it was liable to satisfy any judgment obtained by the appellant for damages for bodily injuries under the Motor Vehicles (Third Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) (the “MVTPR Act”), if the respondent failed to pay the same. Having intervened, the intervener was entitled to raise any defences or raise any arguments open to the respondent in resisting the appellant’s claims, subject of course to costs.

The appellant was 62 years old at the time of the accident and was 66 at the time of the trial for the assessment of damages (though turning 67 years old in 2021). At the time of the accident, the appellant was a driver for Grab Holdings Inc (“Grab driver”) but his contention was that it was only a temporary job. He was diagnosed to have suffered a right frontal subarachnoid haemorrhage and he was discharged after an overnight stay. He subsequently complained of headaches, chest discomfort and nasal discharge and was readmitted to Tan Tock Seng Hospital (“TTSH”) for observation and treatment on 17 February 2017. He was discharged six days later on 22 February 2017.

The proceedings below The parties’ cases below

The appellant made the following claims totalling $2,510,202.40 for general damages (Judgment at [46]): pain and suffering: $147,000.00; traumatic brain injury: $70,000.00; psychiatric conditions: $65,000.00; left shoulder injury: $5,000.00; neck/cervical C4-5 and C5-6 disk protrusions (whiplash): $7,000.00; future medical expenses: $161,702.40; future transport expenses: $2,500.00; and loss of earning capacity/future earnings: $2,052,000.00.

The intervener agreed to the following claims: left shoulder injury: $5,000.00; and neck/cervical C4-5 and C5-6 disk protrusions (whiplash): $7,000.00.

The appellant made the following claims totalling $950,091.64 for special damages (Judgment at [47]): medical expenses (and continuing): $24,132.64; transport expenses: $1,000.00; pre-trial loss of earnings: $861,800.00; total loss of car: $37,959.00; and loss of use of car: $25,200.00.

The intervener agreed to the following claims: medical expenses (and continuing): $24,132.64; and transport expenses: $1,000.00.

The intervener disputed the remaining claims for various reasons, including an alleged overestimation of the quantum of damages suffered and denial of the bodily injury suffered based on their expert’s evidence which we shall deal with below.

The decision below and the parties’ cases on appeal

A summary of the parties’ respective positions on each of the relevant heads (and sub-heads) of damages as against the Judgment can be conveniently tabulated as follows:¹

Damage	Judgment (Reference)	Appellant’s Position	Intervener’s Position
General Damages
Pain and Suffering – Brain Injury	$70,000.00	Not appealed against
Pain and Suffering – Psychiatric Conditions (major depressive disorder (“MDD”); treatment resistance depression (“TRD”); compensatory pain (“CP”))	$ 45,000.00 (with MDD, no TRD, CP not addressed) (at [70], [79] and [81])	$65,000.00 (with MDD, with TRD, with CP)2	$45,000.00 (with MDD, no TRD, with CP)3
Pain and Suffering – Shoulder Injury	$5,000.00	Not appealed against
Pain and Suffering – Neck Injury	$7,000.00	Not appealed against
Future Medical Expenses (“FME”)	$12,746.00 (Medical Treatment / Consultations for five years) (at [94])	$161,702.40 (Medical Treatment / Consultations with rTMS for life)4	$26,426.00 (Total for FME for five years)5
$13,680.00 (repetitive Transcranial Magnetic Stimulation (“rTMS”) for two years) (at [89])
Future Transport Expenses	$1,000 (for five years) (at [97])	$2,500 (for lifetime)6	$1,000 (for five years)7
Loss of Future Earnings (“LFE”)	$50,000.00 ($10,000/year discounted from the intervener’s $13,020/year for five years) (at [128])	$2,052,000.00 ($19,000/month for 9 years)8	$50,000 (as per the Judgment at [128])9
Special Damages
Medical Expenses	$24,132.64	Not appealed against
Transport Expenses	$1,000.00	Not appealed against
Pre-Trial Loss of Earnings	$13,020.00 ($70/day for 186 days) (at [114]–[115])	$861,800 ($16,900/month for 42 months; $19,000/month for 8 months)10	$13,020.00 (as per the Judgment)11
Total Loss of Car	Dismissed	$37,959.0012	Not liable; unsupported by evidence13
Loss of Use of Car	Dismissed	$25,200.0014
Others
Costs	$45,000 (at [133])	$158,000 (inclusive of costs of the appeal)15	$45,00016
Disbursements	$8,500 (at [133])	$42,981.95 (inclusive of disbursements for the appeal)17	No submission

In brief, the appellant contends that the Judge erred in her findings of facts which thereby resulted in the granting of erroneous sums of damages.

The principles applicable to appellate intervention for assessment of damages

The appellant relies on Sandz Solutions (Singapore) Pte Ltd and others v Strategic Worldwide Assets Ltd and others [2014] 3 SLR 562 at [37] to argue that the threshold for appellate intervention is crossed where “it can be established that the trial judge’s assessment is plainly wrong or against the weight of the evidence”.¹⁸ It bears mentioning, however, that the word “assessment” in the cited paragraph does not refer to the assessment of damages but rather the assessment of fact:

As much of the present appeal hinges on findings of fact made by the Judge, we think it apposite to first set out the principles governing appellate intervention vis-à-vis findings of fact by the trial judge. In Singapore, the applicable principles have been authoritatively elucidated in Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101 as follows (at [41]): … The appellate court’s power of review with respect to finding[s] of facts is limited because the trial judge is generally better placed to assess the veracity and credibility of witnesses, especially where oral evidence is concerned … However, this rule is not immutable. Where it can be established that the trial judge’s assessment is plainly wrong or against the weight of the evidence, the appellate court can and should overturn any such finding …

The intervener relies on Tan Boon Heng v Lau Pang Cheng David [2013] 4 SLR 718 (“Tan Boon Heng”),¹⁹ another case relating to the assessment of damages arising from a road traffic accident, for the applicable legal principles to appellate intervention in cases concerning the assessment of damages. In that regard, the appellate court (at [7]):

… may vary the quantum of damages awarded by the judge only if it is shown that the latter: (a) acted on the wrong principles; (b) misapprehended the facts; or (c) had for these or other reasons made a wholly erroneous estimate of the damages ...

As such, while the parties rely on two separate case authorities, the two authorities, when read together, are consistent and applicable to the present case.

We add that the objective of damages is, in turn, meant to compensate the claimant for his loss (Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”) at [9]):

As with any claim in the tort of negligence, the basic principle for determining the quantum of damages for personal injury is to award the claimant “full compensation” for his loss … This means that the award should, as far as money can accomplish, restore him to the position that he would have been in had the injury not been sustained … In the case of pecuniary losses, such as lost earnings, the idea of full compensation gives rise to little difficulty, at least in principle. However, where non-pecuniary loss is concerned, such as pain, suffering and loss of amenity, full compensation is inherently difficult to measure because such loss cannot be assessed by mathematical calculation. The guiding principle, in this context, is therefore that of “fair compensation”, in the words of Field J at first instance in the English Court of Appeal decision of Phillips v The London and South Western Railway Co (1879) 5 QBD 78 at 80. This means that compensation ought to be reasonable and just, and need not be “absolute” or “perfect” (see Cane and Goudkamp at pp 131–132 and the English Court of Appeal decision of Fletcher v Autocar and Transporters Ltd [1968] 2 QB 322 (“Fletcher”) at 335A–B per Lord Denning MR).

The Court of Appeal in Lua Bee Kiang thereafter discusses two methods for quantifying damages (ie, the “component method” and...