Lee Chee Wee v Tan Heng San and other suits

• Jurisdiction: Singapore
• Judge: Hairul Hakkim
• Judgment Date: 11 February 2021
• Neutral Citation: [2021] SGMC 7
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Court Suit Nos 18411, 18412, 18414 and 18421 of 2017, Assessment of Damages Nos 90, 91, 94 and 89 of 2019
• Year: 2021
• Published date: 11 April 2021
• Hearing Date: 09 July 2020,18 September 2019,05 February 2021,29 September 2020
• Plaintiff Counsel: Muhammad Ridhwan Bin Abdul Rahim and Irfan Nasrulhaq Bin Hamdan (Riaz LLC)
• Defendant Counsel: Yek Nai Hui and Cassandra Kang Zhi Qi (Jiang Zhiqi) (Lawrence Chua Practice LLC)
• Subject Matter: Tort,Negligence,Causation,Personal injuries cases,Damages,Measure of damages,General damages for pain and suffering,Grade 1 Whiplash,Assessment,Expert evidence,Whether court bound to accept medical diagnosis,Special damages,Transport expenses
• Citation: [2021] SGMC 7

Deputy Registrar Hairul Hakkim: Introduction

Four family members (“the Plaintiffs”) claimed to have suffered broadly similar injuries following an accident on 26 March 2017 along the immigration checkpoint at the Sultan Abu Bakar CIQ Complex. The Plaintiffs were traveling back to Singapore from Johor Bahru when a vehicle driven by the defendant (“the Defendant”) collided into the rear of the Plaintiffs’ vehicle (“the Accident”) while both vehicles were awaiting in the queue to clear the Malaysian customs.

All four Plaintiffs sought treatment at the Mount Alvernia Hospital (“the Hospital”) the following day after the Accident and were diagnosed with Whiplash injury of Grade 1 classification under the Quebec Task Force scale. In addition, the first Plaintiff was diagnosed with a low back strain while the fourth Plaintiff was diagnosed with a back strain.

The Plaintiffs claimed against the Defendant in four distinct suits, which suits have all been consolidated for the hearing on assessment of damages (“the AD Hearing”).

In all four suits, consent interlocutory judgments have been entered against the Defendant with liability agreed at 100% but reserving the issue of costs and interest to the AD Hearing.

The same doctor, Dr Ho Li Chin, attended to the Plaintiffs at the Hospital and was subsequently appointed as the single joint expert (“the SJE”) in respect of all four suits.

Issues

Based on the parties’ submissions, two broad issues arose for my determination: first, whether the Plaintiffs are able to prove that their injuries were caused by the Accident; and second, if causation is established, the appropriate quantum for the general damages for their respective injuries.

I deal with the issues in turn.

Whether the Plaintiffs’ injuries were caused by the Accident

On a holistic consideration of the evidence, I am satisfied that the Plaintiffs have proved the issue of causation on a balance of probabilities in this case.

I first note that the Defendant had filed an affidavit of evidence-in-chief (“AEIC”) in the AD Hearing, alleging, among other things, that the Accident took place at a low speed with minor damage to the two vehicles, expressly suggesting that the Plaintiffs could not have suffered any injury from the Accident. However, counsel for the Defendant, Mr Yek Nai Hui, had inadvertently omitted to inform the Defendant to turn up for cross-examination during the second tranche of the AD Hearing. Mr Yek was then given leave to call the Defendant to be heard together with the SJE on the last tranche. Regrettably however, Mr Yek again omitted to inform the Defendant of the hearing. In the circumstances, I gave Mr Yek the option of either: (a) holding a further tranche with costs on an indemnity basis to be borne by the Defendant for the further tranche; or (b) to disregard the Defendant’s AEIC out of fairness to the Plaintiffs who would not be able to cross-examine the Defendant. Mr Yek elected for the latter option and I therefore place no weight on the Defendant’s AEIC in my decision below.

I turn now to deal with the Defendant’s argument on causation. First, Mr Yek contends that the Plaintiffs could not have suffered the alleged injuries in the Accident because the collision took place at a low speed and was minor. This argument is however factually unsupported. As stated in the preceding paragraph, given that the Defendant’s AEIC was not admitted, there was no evidence before me of the speed at which the collision took place. In any event, I note that the Defendant has rightly conceded in his written submissions that it is possible for a person to suffer an injury “even in a light collision”, citing the decision of this court in Yap Pow Kin v Muhammad bin Johari [2019] SGMC 40 (“Yap Pow Kin”).¹ As for the pertinent question of whether it is more likely than not for the Plaintiffs to suffer any injury from such a collision, in the absence of any traffic accident reconstruction expert report tendered by the Defendant (see, eg, Mark Amaraganthan Selvaganthan v Cheung Man Wai [2015] SGHC 253 (“Mark Amaraganthan at [31]), I am only guided by the opinion of the SJE in this case, who had stated in all four medical reports that the Plaintiffs had suffered their respective injuries in the Accident.

The SJE was however not directly cross-examined on the issue of causation, and rightly so, as this issue might exceed his scope of expertise (see Mark Amaraganthan at [31]). Having said that, I note, insofar as it is relevant, that the SJE, when cross-examined in relation to the minimal damage caused to the Defendant’s vehicle, had confirmed that he would maintain his diagnosis of Whiplash injury for all the Plaintiffs.²

Second, Mr Yek highlights that it is highly unlikely for all four Plaintiffs to suffer from the same injury and they have therefore either lied or exaggerated their symptoms. This argument, while attractive at face value, is however not based on any evidence before me. To the contrary, the SJE had categorically accepted that it is “less likely than not” that the Plaintiffs had lied or exaggerated about their symptoms because their complaints were verified by physical examination.³ In this regard, during the AD Hearing, the SJE had explained all the various tests he had performed to verify the Plaintiffs’ complaints, ranging from palpation, flexion and lateral rotational movements. He had also stated that as a doctor, he is able to look for movements such as twitching to verify a patient’s complaints. On these aspects, I reproduce below some relevant extracts during the third tranche in relation to the evidence adduced concerning the first Plaintiff:⁴ Q: Reads out para 8 of the medical report. Is this what Mr Lee told you or is this something that you observed when you did the neck movements? A: Observed. Q: What tests did you do? A: Palpation and observation of the muscle movement and twitching. Q: Could you elaborate on what exactly did you do? A: When the neck is moved, the movement was slow and the muscles were observed to be stiff on palpation. Q: This twitching you mentioned, can it be clearly seen? A: It can be seen and felt. Q: From your case notes, did you mention any twitching? A: Not mentioned. Q: Can these symptoms be faked? A: It is not easy to fake. When they fake, the whole upper body muscles will tense up as well compared to just focal muscle stiffness. Q: Can it be faked, ignoring whether easy or difficult? A: Possible. Q: At para 10, can you describe what physical examination was done? A: The muscle tone of the lower and upper back was different during movement. Q: What is the significance of that? A: The muscle tension was different and the movements were more difficult on the lower back compared to the upper back.

The above evidence stands as the only expert evidence on the matter before me. It follows therefore that the Defendant is unable to highlight any other possible causes of the injuries suffered by the...