Lim Hin Hock v Ong Jin Choon

• Jurisdiction: Singapore
• Judgment Date: 27 February 1991
• Date: 27 February 1991
• Docket Number: Civil Appeals Nos 116 and
• Court: Court of Appeal (Singapore)

Lim Hin Hock

Plaintiff

and

Ong Jin Choon and another and another appeal

Defendant

[1991] SGCA 51

Yong Pung How CJ

,

Lai Kew Chai J

and

Chao Hick Tin J

Civil Appeals Nos 116 and 117 of 1987

Court of Appeal

Civil Procedure–Appeals–Appeal against finding of fact by trial judge–Apportionment of liability between two defendants for accident–Trial judge disregarding evidence given by independent witness–Whether trial judge erred in apportionment of liability–Damages–Special damages–Basis for calculating loss of earnings–Plaintiff injured in road accident–Trial judge awarding special damages for loss of earnings during period when plaintiff incapacitated–Salaries paid by companies to plaintiff during period of incapacitation–Plaintiff serving as executive director of companies–Whether salaries received by plaintiff as of right–Whether loss of earnings should be calculated based on business lost by companies or plaintiff's salaries–Tort–Negligence–Contributory negligence–Road traffic accident–Apportionment of liability between two defendants–Whether trial judge erred in apportionment of liability

A collision had occurred between a taxi driven by the second defendant and a motorcycle ridden by the first defendant which resulted in the motorcycle being thrown forward and colliding into the plaintiff (“the accident”). In so far as the plaintiff was concerned, he was an innocent party. The trial judge held that the first defendant was one-third and the second defendant two-thirds to blame for the accident. The trial judge also awarded the plaintiff $48,629.19 representing special damages for the loss of earnings during the period he was incapacitated.

The appeals raised only two issues: first, whether the trial judge had erred in the apportionment of liability; and second, the appropriate quantum of damages that should be awarded to the plaintiff for loss of earnings.

In relation to the first issue, the first defendant contended that the plaintiff was an independent witness and the trial judge had thus erred in disregarding the plaintiff's testimony. The first defendant also contended that there was no evidence that he was speeding or failed to apply his brakes to slow down. As such, the first defendant contended that the trial judge had no basis in holding that the first defendant had refused to give way to the second defendant and attempted to overtake the latter. He submitted that this was not a finding of specific fact but a mere inference, and that an appellate court was in as good a position as the trial judge to draw the proper inference though due weight should be given to the trial judge's views.

In relation to the second issue, the second defendant argued that the salaries received by the plaintiff during the period that he was unable to work had been received as of right. As such, these sums should have been taken into account when determining the plaintiff's loss of earnings. The first defendant argued that the sums paid to the plaintiff did not accurately reflect the true worth of the services rendered by the plaintiff to his two companies, of which he was an executive director and effectively controlled. The first defendant submitted that the more appropriate way of determining the loss suffered by the plaintiff should be based on the business lost by the two companies on account of the plaintiff's absence, rather than what he drew as salaries from the companies. The first defendant alleged that no distinction should be drawn between the plaintiff and the companies since the plaintiff owned and managed the latter.

Held, dismissing the appeals:

(1) There were several difficulties with the plaintiff's evidence. In view of this, it was not wrong for the trial judge to have disregarded the plaintiff's evidence as to how the accident occurred. Also, on the facts, the second defendant's account of the events prior and leading up to the accident was more likely to be correct. Considering all the circumstances, the finding made by the trial judge against the first defendant was correct: at [10], [11] and [13].

(2) Whether the payments made to the plaintiff had been paid as of right would depend on the nature of the arrangements made and the circumstances of the case. On the facts, the two companies were under no obligation to pay the plaintiff during the period that he was unable to work. Thus, the payments made by the two companies to the plaintiff were not as of right but were only advances which the plaintiff would refund. As such, the payments would not be taken into account in determining the plaintiff's loss of earnings: at [15] and [16].

(3) In the present case, the claim was based simply on salary loss on account of the incapacity caused by the accident. It was never put to the plaintiff at trial that the salaries he received from the two companies were not genuinely for his services. The trial judge was therefore correct to hold that that was the loss the plaintiff had suffered and make an award for loss of earnings accordingly. This was not a case where the corporate veil ought to be pierced: at [24].

Benmax v Austin Motor Co Ltd [1955] AC 370; [1955] 1 All ER 326 (refd)

Cunningham v Harrison [1973] QB 942 (folld)

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