Lo Lee Len v Grand Interior Renovation Works Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 10 February 2004
• Neutral Citation: [2004] SGHC 22
• Docket Number: Magistrate's Court Suit No 13596
• Date: 10 February 2004
• Year: 2004
• Published date: 12 February 2004
• Plaintiff Counsel: Quentin Loh SC (Rajah and Tann), Savliwala Din and Gerald Martin Wee (Bogaars and Din)
• Citation: [2004] SGHC 22
• Defendant Counsel: Madan Assomull, Rathna Nathan and Andrew Goh (Assomull and Partners)
• Court: High Court (Singapore)
• Subject Matter: Tort,Damages,Whether gratuitous collateral benefits deductible,Rule against double recovery,Gratuitous collateral benefits,Whether award of damages offended rule,Negligence,Res inter alios acta principle

10 February 2004

Belinda Ang Saw Ean J:

1 The respondent’s motor vehicle was damaged in a road accident as a result of the appellants’ negligence. Judgment in default was entered against the four appellants. The deputy registrar assessed damages at $450 as being the policy excess and a further sum of $600 for loss of use of the respondent’s car for the time the car was in the workshop for repairs. On appeal, the district judge on 5 June 2003 affirmed the decision of the deputy registrar.

2 On the back of the district judge’s ruling that the two items of claim are personal claims as distinct from claims brought by NTUC Insurance Co-operative Limited (“NTUC Income”) in exercise of subrogation rights, the appellants appealed against the award of damages on the ground that the respondent had suffered no recoverable loss. The appellants stress that damages are compensatory and a plaintiff who has suffered no loss cannot recover damages. It is argued that the respondent had received from his insurers collateral benefits which meet the same loss as the award of damages. Those collateral benefits are outside the two established exceptions to the rule against double recovery and they have to be taken into account to diminish any damages recoverable. A failure to account would offend the principle against double recovery.

3 The respondent and NTUC Income entered into a quality cover in respect of the respondent’s motor vehicle, registration number SCE 5392Z. The contract was formed by the insurer’s acceptance of a proposal form duly completed by the respondent on 12 August 2000. The contract is contained in the policy, the schedule thereto and endorsement M4. The policy was renewed and still on foot on 7 December 2001. On that date, the respondent’s motor vehicle was involved in a road accident with two other vehicles. Zurich Insurance (S) Pte Ltd (“Zurich”) is the insurer of vehicles GT 4787Z and YK 6829H owned by the first and third appellants respectively. The drivers of the two vehicles were the second and fourth appellants. Although the parties to the proceedings are the owners and drivers of the vehicles involved in the road accident, counsel on both sides informed the court that insurers are behind the respective parties named in the action.

4 The unchallenged evidence of the respondent is that he did not make a claim under his policy. After the accident, the respondent had signed a form to make a claim against the third party and had left it to his insurers to handle the matter. I find the respondent’s unchallenged evidence plausible. His car was damaged from behind and understandably he regarded himself as not being at fault and would not wish to compromise his No Claim Discount (“NCD”). A claim on the third party would leave his NCD intact. Section 3 of NTUC Income’s Key Information for Motor Policyholders of 1 October 2001 reads as follows:

3. Advice on Third Party Claims

If you are involved in an accident where the third party is at fault, there is no need for you to make your own claim against the third party for your loss.

Send your car to any of our Quality Workshops, we will provide you with the use of a courtesy car from the 2nd working day or $50 daily transport allowance.

Your No Claim Discount (NCD) will be protected if you are not at fault.

5 Section 2 of NTUC Income’s Key Information relates to the policyholder’s own damage claim. If a claim is made by the respondent on his own policy, the NCD would be reduced or withdrawn.

6 The respondent arranged for his damaged car to be repaired by a “Quality Workshop”. In return, he was given, in lieu of a courtesy car, a taxi allowance of $50 daily on the terms of NTUC Income Agreement no A12451. The terms there were largely about the use of the courtesy car and the insured’s responsibility for it. However, section B is relevant to the taxi allowance. Section B reads:

Policyholder further agrees and undertakes … [to] account and pay to NTUC Income any sum or sums of money which Policyholder may receive … pursuant to any award or judgment in respect of any costs, expenses or fees including interest incurred or suffered by Policyholder for any loss of use including any administrative charges arising from the said tort.

7 The upshot of my analysis of the evidence is that I am not required to consider at any length the earlier arguments as to whether the policy was by its terms a non-excess policy. The payment of $600 came about pursuant to s 3 of the Key Information and NTUC Income Agreement no A12451. It was not made pursuant to a term contained in endorsement M4. I was mindful that the arguments canvassed below by both parties and before me on 6 November 2003 were premised upon a claim having been made under the NTUC Income policy. I therefore gave leave to the parties to tender their further written submissions, which they did, on 3 February 2004.

8 The position taken by counsel for the appellants, Mr Quentin Loh SC, in the further written submissions is that s 3 of the Key Information and the respondent’s evidence that he was making a third party claim would not adversely affect the arguments counsel made on 6 November 2003. He maintains that the claims for excess and loss of use were personal claims. The payments of excess and loss of use by NTUC Income were voluntary, as they were not paid under the policy. The payment of $600 transport allowance was made under the NTUC Income Agreement no A12451. The payments also fell outside the two established exceptions to the rule against double recovery. Moreover, as they were not insurance payments, no right of subrogation accrued.

9 Counsel for the respondent, Mr Madan Assomull, maintains that the claims were made under the policy. Even if they were not, they are recoverable since the payments were res inter alios acta. There was no danger of double recovery and, in any event, the payments come within the exceptions to the rule against double recovery.

10 Having considered the further written submissions, I remain of the view that the respondent’s evidence is on the balance of probabilities the correct version. His affidavit evidence that he sent his damaged vehicle to NTUC Income’s quality workshop pursuant to endorsement M4 cannot be right in the light of other countervailing evidence. The fact that the words “own damage” were indicated on the survey report is not conclusive one way or the other. Neither would the use of the word “excess” in the proceedings nor any misunderstanding on the part of NTUC Income in construing the respondent’s instructions make a difference to his original instructions. The evidence is that the respondent had submitted a form to make a claim against the third party and his instruction had not changed. His intention all along was to claim against the third party. How NTUC Income handled the damage claim would be of no concern to him so long as the outcome was consistent with the respondent not being the driver at fault and his NCD was not affected.

11 What is in issue is the receipt by the respondent of benefits and money that apparently have the effect of compensating the pecuniary loss the respondent has sustained. The question that has to be decided in this case is this: Could the respondent recover from the appellants part of the repair cost in the sum of $450 even though he himself had not paid out that sum? Secondly, could the respondent recover the taxi allowance in the sum of $600 paid to him under NTUC Income Agreement no A12451?

12 The object of an award of damages is to place the injured party as nearly as possible in the same financial position as he would have been in but for the accident. The basic rule is that the respondent cannot recover more by way of damages than the amount of his actual loss. If a collateral benefit compensates for the same loss, it must be taken into account in determining the actual level of compensation required through an award of damages. The consideration here is about the deduction of compensating advantages or benefits which a plaintiff enjoyed as a result of the breach. It is not about mitigation which is to relieve the defendant from liability for those consequences which the plaintiff avoided or might reasonably have avoided. Beazley JA in Anthanasopoulos v Moseley (2001) 52 NSWLR 262 said at 269, [40]: “Mitigation, of its very nature, is not a matter which goes either to the question of entitlement to damages, which is the matter in issue here, or to extinguishment of loss.” There are two well-established exceptions to this general rule of deduction. Insurance payments and charitable gifts are deemed non-deductible. I shall consider in this appeal whether on the facts of this case, the respondent would be overcompensated by an award of damages and whether the categories of exceptions to the principle against double recovery are closed.

13 It is common ground that NTUC Income paid the entire cost of the repairs in the sum of $1,792.20 and a sum of $600 to the respondent for the loss of use of his vehicle. From 8 to 19 December 2001, the respondent’s vehicle was in the workshop and NTUC Income paid him a daily taxi allowance of $50. The respondent had demonstrated that he had incurred taxi fare for the days his vehicle was in the workshop. Each of the witnesses from Zurich and NTUC Income testified that $50 a day was a reasonable figure for taxi allowance. The respondent had testified to spending that amount on transport. In any event, the appellants here are not seriously disputing the finding of the district judge on quantum. The appeal is on whether having been paid $600, the respondent has suffered any loss.

14 It is of no relevance and consequence that NTUC Income, on behalf of the respondent, sued for $450 and not the entire repair cost. The explanation offered by Mr Loh is that under the knock-for-knock agreement, each insurer bears its insured’s repair cost except for the excess. In the present...