Lee Wei Kong v Ng Siok Tong

• Jurisdiction: Singapore
• Judgment Date: 13 January 2012
• Date: 13 January 2012
• Docket Number: Civil Appeal No 12 of 2011
• Court: Court of Appeal (Singapore)

Lee Wei Kong (by his litigation representative Lee Swee Chit)

Plaintiff

and

Ng Siok Tong

Defendant

[2012] SGCA 4

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 12 of 2011

Court of Appeal

Damages—Measure of damages—Personal injuries cases—Future psychiatric treatment—Whether award should be based on medication which was reasonably effective in addressing ailment with minimal side-effects—Whether consultation and transport costs claimed were reasonable—Whether multiplier should be based on life expectancy rather than retirement age

Damages—Measure of damages—Personal injuries cases—Loss of future earnings—Plaintiff still studying in junior college at time of injury—Whether award for loss of future earnings could be made—Whether multiplicand should be based on average starting salary of university graduates

Damages—Measure of damages—Personal injuries cases—Loss of income of mother—Mother stopping work to care for child—Whether recoverable by child—Loss of income as starting point for calculation of reasonable expense of care

Damages—Measure of damages—Personal injuries cases—Pain and suffering—Relationship between component and global approaches to quantification—Whether incorrect to have regard to cases decided using global approach

As the appellant was crossing a road at a pedestrian crossing, he was knocked down by a taxi driven by the respondent. The appellant was then aged 18 and was just about to commence his second and final year at a junior college. He was severely injured and an emergency operation was carried out to remove large blood clots from his brain after which he was in a coma for 17 days.

By consent, interlocutory judgment was entered in the appellant's favour with the respondent being held 75% liable for the accident. Damages were assessed by an assistant registrar (‘AR’). Both parties appealed against the AR's decision. The High Court judge (‘the Judge’) varied the AR's decision in respect of, inter alia, the following four heads of claim: (a) pain and suffering; (b) loss of earning capacity; (c) future psychiatric treatment; and (d) pre-trial loss of income of the appellant's mother. The amounts awarded by the AR for the first three heads of claim were reduced while the AR's award for the fourth head of claim was set aside.

The appellant appealed against the Judge's decision on these four heads of claim.

Held, allowing the appeal in part:

(1) The component approach was no more than a systematic instrument to aid the court to determine what would be a fair and reasonable quantification for a particular injury or disability, having regard to precedents. Previous cases would still remain relevant in so far as the particular injuries or post-accident residual disabilities are sufficiently similar. The Judge was not wrong in law to have considered cases that had been decided using the global approach: at [14].

(2) The court would not interfere with an award of damages merely because it was of the opinion that a different amount might be more appropriate. An award close to the AR's award of $285,000 had not been made in any case for pain and suffering. While the physical injuries and mental disabilities suffered by the appellant were not the same as those in previous cases, the Judge's award of $160,000 could not be regarded as being manifestly inadequate, on a broad view of things: at [15]and [16].

(3) Prima facie, the AR's award of $600,000 for loss of earning capacity (‘LEC’) appeared manifestly excessive in light of the previous case law where a maximum of $180,000 was awarded in 2003. In examining the amounts awarded in past cases, especially those made before 2000, one had to not overlook the significant changes in the purchasing power per unit of currency and the state of the labour market: at [21].

(4) The Judge's award of $250,000 for LEC was high in light of the precedents. However, this amount was inadequate in the context of the disabilities suffered by the appellant because his capacity to work and earn had been almost destroyed except for the ability to carry out some very simple tasks. In the instant case, damages should be awarded on the basis of loss of future earnings (‘LFE’) rather than LEC: at [26].

(5) Ordinarily, an award for LFE was granted where the plaintiff was in employment at the time of trial, but because of his injuries, was unable to earn as much as what he earned prior to the accident. The difference in earnings would form the basis of the multiplicand. However, if at the time of the trial his earnings are the same as, or even higher than, what he earned before the accident and, if he should lose his current job, he would suffer a disadvantage in getting re-employed due to the injuries sustained, then he would be entitled to claim for LEC, but not for LFE: at [29].

(6) In a case which concerned a young person who was still studying when he was injured and whose earning capacity had either been seriously curtailed or destroyed, the traditional manner of awarding LEC or LFE posed a challenge as it was premised on the injured victim being already in employment at the time of the accident. However, the fact that the injured person was young and had not commenced work at the time of the accident should not be an impediment to the grant of an award for LFE: at [30].

(7) As a matter of probabilities, it would not be without any foundation for the court to hold that the appellant had more than an even chance of obtaining a university degree. The median monthly gross starting salary for university graduates was $2,700. There was no evidence as to the average or median earnings of a graduate over a period of, say, 20 years. In view of the appellant's disabilities, he was unlikely to be able to obtain any employment. In the circumstances, the fairest approach would be to take $2,700 as the reasonable multiplicand. A multiplier of 20 years was not inappropriate in the instant case: at [37], [40] to [42].

(8) It would be wrong to make an award for future psychiatric treatment based on the cost of medication which had been found to be unsuitable to address the ailment and was therefore discontinued. The court should only adopt the cost of medication which was regarded as being reasonably effective in remedying the ailment with minimal side effects: at [50].

(9) The cost of consultation would naturally vary according to the frequency and length of each visit to the psychiatrist. Arguably, one might visit the psychiatrist only once a year in order to obtain a year's supply of medication. However, this would not be prudent in light of the fact that psychiatric medication often consists of drugs with a powerful effect on the central nervous system, and that therefore, the use of such drugs should be monitored periodically: at [51].

(10) The appropriate multiplicand was $510 per month including the cost of one consultation per month. An award of future medical costs, unlike LFE, should be based on life expectancy rather than retirement age. There was no evidence in the instant case as to the average life expectancy of males in Singapore. The multiplier of 20 years adopted by the AR and the Judge was not unreasonable given that, on the evidence, there was a possibility that life-long psychiatric treatment might not be needed, and to account for the upfront payment of a lump sum: at [51] and [52].

(11) It was possible for the appellant to claim loss of income of his mother because it was his loss, being the reasonable cost of meeting the need created by the tort. The mother's actual loss of income was taken as the starting point to compute this reasonable cost. The Judge erred in stating that the AR's award of $72,600 for pre-trial loss of income was made without factual basis. There was evidence before the AR which supported the award. However, the quantum of the award was manifestly excessive because it amounted to about $1,500 per month, which was a figure unsupported by the evidence. On the evidence, it would not be unreasonable to assume that the mother's actual loss was somewhere around $550 per month: at [53], [60], [61] and [63].

A v Powys Local Health Board [2007] EWHC 2996 (QB) (refd)

Almond v Leeds Western Health Authority [1990] 1 Med LR 370 (refd)

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

Cassel v Riverside Health Authority [1992] PIQR Q 168 (refd)

Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (folld)

Chong Hwa Yin v Estate of Loh Hon Fock, deceased [2006] 3 SLR (R) 208; [2006] 3 SLR 208 (refd)

Chow Khai Hong v Tham Sek Khow [1991] 2 SLR (R) 670; [1992] 1 SLR 4 (folld)

Croke v Wiseman [1982] 1 WLR 71 (folld)

De Cruz Andrea Heidi v Guangzhou Yuzhitang Health Products Co Ltd [2003] 4 SLR (R) 682; [2003] 4 SLR 682 (refd)

Donnelly v Joyce [1974] QB 454 (folld)

Koh Chai Kwang v Teo Ai Ling [2011] 3 SLR 610 (refd)

Kuan Kian Seng v Wong Choon Keh [1995] SGHC 43 (folld)

Lai Chi Kay v Lee Kuo Shin [1981-1982] SLR (R) 71; [1980-1981] SLR 513 (refd)

Lee Wei Kong v Ng Siok Tong [2010] SGHC 371 (refd)

Muhamad Ilyas Bin Mirza Abdul Hamid v Kwek Khim Hui [2004] SGHC 12 (refd)

Nirumalan V Kanapathi Pillay v Teo Eng Chuan [2003] 3 SLR (R) 601; [2003] 3 SLR 601 (refd)

Peh Diana v Tan Miang Lee [1991] 1 SLR (R) 22; [1991] SLR 341 (refd)

Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR (R) 178; [2008] 1 SLR 178 (refd)

Tan Yu Min Winston v Uni-Fruitveg Pte Ltd [2008] 4 SLR (R) 825; [2008] 4 SLR 825 (refd)

Teo Ai Ling v Koh Chai Kwang [2010] 2 SLR 1037 (refd)

Toon Chee Meng Eddie v Yeap Chin Hon [1993] 1 SLR (R) 407; [1993] 2 SLR 536 (refd)

Mental Disorders and Treatment Act (Cap 178, 1985 Rev Ed)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) First Schedulepara 16

Joyce Fernando (Engelin Teh Practice LLC) for the appellant

Patrick Yeo and Lim Hui Ying (Khattar...