Lim Mei Choo (Lin Meizhu) v Muhammad Azham bin Razak (Direct Asia Insurance (Singapore) Pte Ltd, intervener)

• Jurisdiction: Singapore
• Judge: Lewis Tan
• Judgment Date: 13 October 2021
• Neutral Citation: [2021] SGMC 74
• Citation: [2021] SGMC 74
• Court: Magistrates' Court (Singapore)
• Published date: 23 October 2021
• Docket Number: Magistrate Court Suit No 4475 of 2019 (Assessment of Damages No 721 of 2020)
• Plaintiff Counsel: Kwok Ling Ling Bonnie (Bonnie Kwok LLC)
• Defendant Counsel: The defendant absent and unrepresented,Lim Hui Ying and Julian Neo (Legal Solutions LLC)
• Subject Matter: Damages,Assessment,Causation,Whether causation can be contested at the assessment of damages stage in negligence claims,Evidence,Weight of evidence,Weight to be accorded to evidence of accident reconstructionist,Doctor's evidence premised on exaggerated account of accident
• Hearing Date: 11 August 2021,08 October 2021,24 March 2021

Deputy Registrar Lewis Tan: Introduction

This judgment considers the implication of the Court of Appeal’s (“CoA”) decision in Tan Woo Thian v PricewaterhouseCoopers Advisory Services Pte Ltd [2021] 1 SLR 1166 (“Tan Woo Thian”), in particular to the questions of whether and to what extent can causation be contested at the assessment stage of proceedings.

Consideration is also had to the weight, if any, to be given to the evidence of an accident reconstructionist, and to the evidence of a doctor whose medical report was premised on an exaggerated account of the accident.

Brief facts and summary of cases

On 2 August 2017 at about 12:15pm, Mdm Lim Mei Choo (“the Plaintiff”) was driving her vehicle along a slip road and waiting for traffic clearance when she was rear-ended by a vehicle driven by Mr Muhammad Azham bin Razak (“the Defendant”).

The Plaintiff initially agreed to settle the matter privately with the Defendant as she “did not seem to have suffered any external injury”.¹ However, she reported that she began to suffer pains in her neck, a heavy headache, and also numbness to her fingers in the early hours of 3 August 2017. She then went for a consultation at MY Orthopaedic Clinic (“MY Orthopaedic”), where she consulted with Dr Tan Mak Yong (“Dr Tan”), the medical single joint expert (“SJE”) and her treating doctor from a previous accident in 2000.

Following multiple consultations with Dr Tan in August 2017, the Plaintiff was diagnosed by Dr Tan as having sustained a whiplash injury of her cervical spine (type II) with likely exacerbation of cervical spondylosis and probable exacerbation of lumbar spondylosis.² The Plaintiff claims that since the accident, she now suffers from “ongoing pain in [her] upper back between [her] shoulders and at [her] lower back everyday. Lifting objects of about 5 kg or heavier would also result in tension headaches and even helping [her] younger son to carry his school bag also triggers pain”.³ For this, the Plaintiff claims, among others, $15,000 in respect of her whiplash injury, $10,000 in respect of her back injury, and $10,000 for the costs of future treatment.⁴

The Defendant has not participated throughout the course of proceedings. In his stead, Direct Asia Insurance (Singapore) Pte Ltd (“the Intervener”) has obtained leave to participate in the assessment of damages proceedings to challenge the Plaintiff’s claim against the Defendant on the issues of causation of injuries and quantum of the claim.⁵ Before me, the Intervener strenuously disputes the Plaintiff’s claims, arguing in the main that the Plaintiff has failed to prove that her injuries were caused by the accident,⁶ and in the alternative that the sums claimed for pain and suffering are excessive.

Causation – The implication of the decision in Tan Woo Thian Causation as an essential element of liability in negligence claims

In Tan Woo Thian, the CoA observed at [7] that “[i]n order to even make out the tort of negligence, it must first be shown that the defendant’s breach has in fact caused loss” [emphasis in original]. For this reason, even where a trial has been bifurcated between liability and quantum, the plaintiff “would nonetheless be obliged to show that he did, in fact, suffer one or more types of loss that was causally connected to the alleged breach” [emphasis in original] before liability can be established (Tan Woo Thian at [8]). Failing to prove such causal connection at the liability stage would be fatal to the plaintiff’s case, and the matter would not have to proceed to the assessment stage: see Tan Woo Thian at [11]–[12].

This is not a novel proposition and follows from a long line of authorities. For example, from as early as in 2004, the CoA observed as follows (Salcon Ltd v United Cement Pte Ltd [2004] 4 SLR(R) 353 at [24], recently endorsed in Jurong Primewide Pte Ltd v Moh Seng Cranes Pte Ltd and others [2014] 2 SLR 360 at 77): … That causation must be established before the question of quantification of damages arises is obvious. In Carslogie Steamship Co Ld v Royal Norwegian Government [1952] AC 292 at 300, Viscount Jowitt explained:

[A]t the outset I think it is well to bear in mind the elementary principle that it is for the plaintiff in an action of damages to prove his case to the satisfaction of the court. He has to show affirmatively that damages under any particular head have resulted from the wrongful act of the defendant, before he can recover those damages.

[emphasis added in bold]

This is because “there is an important and well-recognised distinction between causation and quantification” (Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145), so that causation, which “is an essential element of liability” (KS Energy Services Ltd v BR Energy (M) Sdn Bhd [2014] 2 SLR 905 (“KS Energy”) at [139]) must be established before one can logically proceed to quantifying the amount of damages due. As stated in The Law of Contract in Singapore (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2012) at para 22.014 (cited in KS Energy at [139]): It seems almost too obvious to state as a principle, but damages may only be awarded if the promise[e]-claimant proves that the defaulting promisor’s breach of contract caused the loss sustained by the promisee. As the Court of Appeal put it in Salcon Ltd v United Cement Pte Ltd [[2004] 4 SLR(R) 353], ‘[t]hat causation must be established before the question of quantification of damages arises is obvious’. [emphasis in original]

From the above excerpts, it becomes clear that causation is an essential element that must be established before a defendant may be held liable in damages to a plaintiff. This position is echoed in the United Kingdom (“UK”), where issues of causation are regarded as a necessary precursor to issues of assessment/quantification: In Hotson v East Berkshire Area Health Authority [1987] AC 750 (cited with approval in Yeo Peng Hock Henry v Pai Lily [2001] 3 SLR(R) 555 at [53]), Lock Ackner said at 921 that “[t]o my mind, the first issue which the judge had to determine was an issue of causation – did the breach of duty cause the damage alleged. If it did not, as the judge so held, then no question of quantifying damage arises”. In Downs and another v Chappell and another [1997] 1 WLR 426, the UK Court of Appeal held that the trial judge “should have concluded that [the Plaintiffs] had proved their case on causation, and that the only remaining question was what loss [the Plaintiffs] had suffered as a result of entering into the contract with [the First Defendant]” (at 433). In Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 at 1614 (endorsed in JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) [2007] 4 SLR(R) 460 at [147]), Stuart-Smith LJ said that “it is necessary to consider as a matter of law what it is necessary to establish as a matter of causation, and where causation ends and quantification of damage begins”.

Causation at the assessment stage of proceedings

Nonetheless, while causation is an essential element of liability, it does not become moot and unarguable once parties reach the assessment stage. In this regard, there exists a large body of case law (in particular in personal injury claims) in which the causation of damage(s) remained very much a live issue at the assessment stage of proceedings. A few of such cases may be briefly considered.

In Muhammad Shaun Eric bin Abdullah alias De Silva Shaun Eric v Ng Ah Tee (Chua Seng Thye, Third Party) [2005] SGHC 180, the plaintiff was a passenger in a taxi driven by the third party. The taxi collided into the defendant’s motor vehicle, and the plaintiff’s knees were injured. The parties entered into a consent IJ, whereby the plaintiff agreed to bear 10% of the liability (as he had not worn his seat belt), and the third party agreed to indemnify the defendant against 15% of the damages that the defendant had to pay the plaintiff. The matter then went for assessment before the assistant registrar (“AR”), before whom the plaintiff claimed to have suffered six types of injuries, namely: (a) severe chondromalacia patella in respect of both knees; (b) torn anterior cruciate ligament of the left knee; (c) reflex sympathetic dystrophy of both knees; (d) spinal cord stenosis; (e) possibility of osteo-arthritis in the future; and (f) swelling of the lower spine, knees and heels. The AR found that the only injuries that the plaintiff had suffered by reason of the accident were contusions to both knees, and he made an award of $11,000 for the pain and suffering experienced by reason of these injuries. Dissatisfied, the plaintiff appealed.

On appeal, Judith Prakash J (as she then was) observed that “[t]he main issue in the appeal, as it was in the assessment hearing, was that of causation” [emphasis added] (at [5]). On this issue, the Prakash J agreed with the AR that the medical evidence showed that the plaintiff could not establish, on the balance of probabilities, that the injuries he complained of arose from the accident. Accordingly, the appeal was dismissed.

Similarly, in Lee Mui Yeng v Ng Tong Yoo [2016] SGHC 46, the plaintiff suffered serious spinal cord injuries after a motor accident. IJ was entered in the plaintiff’s favour on 24 November 2011, and the matter then proceeded before Kannan Ramesh JC (as he then was) for the assessment of damages. Before Ramesh JC, the plaintiff claimed, amongst other things, for general damages for the pain and suffering connected with the injuries sustained to her spinal cord, her post-traumatic stress order (“PTSD”), her major depressive disorder (“MDD”), her injuries sustained in a fall that resulted from the osteoarthritis in her knees, and for loss of future earnings. A key issue was whether the injuries from the accident had aggravated the plaintiff’s existing...