Lau Pang Cheng David v Tan Boon Heng

• Jurisdiction: Singapore
• Judgment Date: 31 October 2012
• Date: 31 October 2012
• Docket Number: Suit No 699 of 2011 (Registrar's Appeal No 229 of 2012)
• Court: High Court (Singapore)

Lau Pang Cheng David

Plaintiff

and

Tan Boon Heng

Defendant

[2012] SGHC 223

Tay Yong Kwang J

Suit No 699 of 2011 (Registrar's Appeal No 229 of 2012)

High Court

Damages—Assessment—Appeals—Approach to be taken by judge in chambers to decision of assistant registrar—Distinction between assistant registrar's exercise of discretion and findings of fact

The plaintiff was injured in a road traffic accident when a car driven by the defendant collided into him. Interlocutory judgment was entered by consent, with 95% liability borne by the defendant. Subsequently, the assessment of damages was held before an assistant registrar (‘AR’), who awarded damages to the plaintiff.

Being dissatisfied with the decision of the AR, the defendant appealed. At the hearing of the appeal, the defendant advanced the submission that a judge in chambers hearing an appeal against the decision of an AR was in no way bound by that decision.

Held, dismissing the appeal:

(1) A judge in chambers was not bound by an AR's exercise of discretion because the judge was exercising a form of confirmatory jurisdiction, not appellate jurisdiction. As the AR exercised substituted and not primary jurisdiction, the judge in chambers was not bound by the AR's exercise of what was in reality the judge's discretion: at [15] and [16].

(2) A judge hearing an appeal against an AR's decision generally faced no practical difficulty in rehearing the matter afresh because evidence was adduced by way of affidavit in interlocutory matters heard in chambers. However, in cases involving an assessment of damages, proceedings before the AR took on the nature of a trial and the AR the nature of a trial judge: at [17].

(3) When coming to a decision, the AR had to first make findings of fact and then exercise his discretion based on those findings. The fresh exercise of discretion by a judge in chambers was in turn dependent on the AR's findings of fact on the oral as well as documentary evidence. In this regard he suffered the same disadvantage as an appellate court in relation to a trial judge. There was no inconsistency in an appeal from an assessment of damages in the judge in chambers exercising his discretion afresh while according the AR's findings of fact the customary deference: at [19].

(4) The expert witnesses had given evidence before the AR, who found no reason to doubt their testimony. Further, the AR found that the plaintiff came across as an honest and credible witness. This was precisely the sort of finding that a judge in chambers hearing an appeal from an AR was ill-placed to contradict: at [27], [34] and [35].

(5) Upon looking at the whole matter, it was concluded that the AR's decision should not be interfered with. The appeal was accordingly dismissed: at [38].

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

Chang Ah Lek v Lim Ah Koon [1998] 3 SLR (R) 551; [1999] 1 SLR 82 (refd)

Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35 (refd)

Evans v Bartlam [1937] AC 473 (refd)

Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] 2 SLR (R) 685; [1990] SLR 1234 (refd)

Lassiter Ann Masters v To Keng Lam [2004] 2 SLR (R) 392; [2004] 2 SLR 392 (refd)

Peh Eng Leng v Pek Eng Leong [1996] 1 SLR (R) 939; [1996] 2 SLR 305 (refd)

Sie Choon Poh v Amara Hotel Properties Pte Ltd [2008] 2 SLR (R) 1076; [2008] 2 SLR 1076 (refd)

Ramesh Appo and Susila Ganesan (Just Law LLC) for the appellant

Goh Teck Wee (Goh JP & Wong) for the respondent.

Tay Yong Kwang J

1 This appeal concerns the assessment of damages by an assistant registrar (‘the AR’) arising from a road traffic accident which caused injuries to the plaintiff, Dr David Lau Pang Cheng. The defendant appealed against the decision of the AR in respect of the various heads of damages awarded to the plaintiff. I upheld the AR's decision after hearing the parties' submissions and now give my reasons.

Background

2 The facts of this case are not in dispute. On 15 January 2006 at about 6.30 am, the plaintiff was part of a group of four cyclists riding in a single file along the extreme left lane of West Coast Highway in the direction of Jurong. The group was riding past the entrance of Pasir Panjang Wholesale Centre when the defendant's car made a right turn into the entrance and collided with the plaintiff and two of the other cyclists, thereby injuring the plaintiff. The collision caused the plaintiff to be thrown against the windscreen of the car and thereafter to land on the road.

3 The plaintiff was treated by Dr Peter Manning, a senior consultant at the Emergency Medicine Department of the National University Hospital (‘NUH’) about an hour after the accident. He was found to have abrasions and contusions to his lower legs as well as a contusion over his left buttock. He reported mild pain and declined analgesia. Although his helmet was dented and cracked in several places, the plaintiff was not rendered unconscious by the accident and did not vomit or have a headache. He was given a medical certificate for three days.

4 After the accident, the plaintiff began to notice neck pains that had not been present previously. He saw Dr Yue Wai Mun, Senior Consultant (Spine Service) of the Department of Orthopaedic Surgery at the Singapore General Hospital (‘SGH’) on 19 January 2006 for this reason. An X-ray of his cervical spine was normal and magnetic resonance imaging (‘MRI’) revealed pre-existing disc degeneration but no injuries that could be attributed to the accident. However, Dr Yue found that the plaintiff had pain on extension and rotation of his neck and that he was tender in the left trapezius muscle. As will be seen, the existence of a neck injury and its impact on the plaintiff's work as a ear, nose and throat (‘ENT’) surgeon are the focus of this appeal.

5 This writ of summons was filed in the Magistrates' Courts on 2 June 2008 but the case was subsequently transferred to the District Courts. Interlocutory judgment was entered by consent on 15 July 2010, with 95% liability to be borne by the defendant. On 20 September 2011, Andrew Ang J granted an application to transfer the case to the High Court. Subsequently, the assessment of damages took place over seven days in March and April 2012, with the plaintiff claiming under ten heads:

(a) chronic neck pain;

(b) aggravation of existing degenerative changes to the plaintiff's cervical spine;

(c) contusions;

(d) loss of future earnings;

(e) loss of earning capacity;

(f) medical expenses;

(g) pre-trial loss of income;

(h) loss of pre-trial earnings,;

(i) costs of replacement bicycle and heart rate monitor; and

(j) travelling expenses for overseas cycling trips.

The AR's decision

6 The AR awarded damages amounting to $281,877.75, with interest on special damages at half of 5.33% from the date of service of writ to the date of judgment and interest on general damages at 5.33% from the date of service of writ to the date of judgment. No interest was awarded for loss of future earnings. The total sum was derived as follows:

S/No	Item	Amount Allowed	Remarks
1	Neck injury and aggravation of existing degenerative changes	$20,000.00
2	Contusions and abrasions	$1,000.00
3	Loss of future earnings	$177,076.90	Multiplicand: $22,997.00 Multiplier: 11 years Discount for pre-existing degenerative changes: 30%
4	Loss of pre-trial earnings	$78,189.80	Multiplicand: $22,997.00 Multiplier: 4 years Discount for pre-existing degenerative changes: 15%
5	Past medical expenses	$71.05
6	Replacement bicycle and heart rate monitor	$5,540.00

The appeal

7 The defendant appealed against the AR's decision with respect to the following (items 1, 3, 4 and 6 of the table above):

1. (a) neck injury and aggravation of existing degenerative changes;

2. (b) loss of future earnings;

3. (c) loss of pre-trial earnings; and

4. (d) replacement bicycle and heart rate monitor.

The plaintiff did not cross-appeal.

Neck injury and aggravation of existing degenerative changes

8 The defendant disputed the existence of any neck injury to the plaintiff on four main bases. First, the defendant noted that the plaintiff had not complained of any injury to his neck when he was at NUH for treatment and that Dr Manning had found no spinal tenderness at all. Second, the X-ray and MRI scan taken four days later and analysed by both Dr Yue and Dr Raymond Tan, a senior consultant at the Department of Diagnostic Radiology of SGH, disclosed no injury that could be attributed to the accident. The degenerative changes and loss of lordosis found in the plaintiff's cervical spine were likely to have pre-existed the accident. Third, the medical reports in evidence which reported a neck injury were based on the plaintiff's unverifiable assertions of pain and of having a limited range of motion in his neck. Finally, surveillance on the plaintiff conducted over five days in January and February 2010 showed him to be apparently untroubled by his injury.

Loss of earnings

9 The bulk of the damages awarded by the AR were for the plaintiff's claim for loss of earnings, which was said to have been caused by his neck injury. While the plaintiff did not allege that this injury was particularly serious, he claimed that it had a large impact on his work and, consequently, his earnings. At the time of the accident, the plaintiff was a consultant in the Department of Otolaryngology at SGH. He was promoted to senior consultant on 1 May 2006...