Lim Xueru and Another v Lim Kai Meng

• Court: High Court (Singapore)
• Judge: Karthigesu J
• Judgment Date: 16 October 1992
• Neutral Citation: [1992] SGHC 269
• Citation: [1992] SGHC 269
• Defendant Counsel: NK Pillai (Harry Elias & Partners)
• Plaintiff Counsel: R Karuppan Chettiar (Murphy & Dunbar)
• Published date: 19 September 2003
• Docket Number: Suit No 1855 of 1989
• Date: 16 October 1992
• Subject Matter: Medical expenses incurred by plaintiffs paid by defendant principally from joint account of defendant and second plaintiff,Whether recoverable by second plaintiff from the defendant,Measure of damages,Damages,Loss of future earnings,Whether injuries would affect plaintiff's chances of obtaining employment in the future,Plaintiff planning to work in the future,Whether award inadequate,Whether plaintiff's expectations of seeking employment at some distant date in the future is real or fanciful,Principles on which an appellate court will disturb a lower court's assessment of damages,Personal injuries cases,Special damages,Pain and suffering

Cur Adv Vult

The second plaintiff is the wife of the defendant. On 31 May 1988 the second plaintiff, the first plaintiff then aged three years and Lim Zuowei a boy aged four months, (who died in the accident), the children of the second plaintiff and the defendant, were travelling in a motor car driven by the defendant when it was involved in a collision with another motor car near Malacca in Malaysia where they had gone on a family holiday following the birth of Zuowei. The first and second plaintiffs suffered personal injuries for which they were treated at the general hospital in Malacca and later transferred to the Singapore General Hospital for further treatment.

On 26 March 1990 interlocutory judgment by consent was entered for both plaintiffs against the defendant for damages to be assessed by the registrar.

On 28 February 1991 an assistant registrar assessed the damages claimed by the second plaintiff in the sum of $40,000 but made no award in respect of the special damages claimed by the plaintiffs which had been agreed at $10,144.

Mr Karuppan Chettiar contends that the award of $40,000 for the second plaintiff`s pain and suffering of the multiple injuries she sustained is wholly inadequate and further that the assistant registrar erred in refusing to make an award for the second plaintiff`s loss of future earnings or more correctly on the facts of this case for the loss of earning capacity in the future.

The disallowance of the agreed special damages of $10,144 raises an interesting point of law. The question is whether the agreed special damages which, in the main, constitute the medical expenses of both plaintiffs incurred in Malacca and at Singapore and paid by the defendant principally from a joint account of the defendant and the second plaintiff are recoverable in these proceedings against the defendant.

General damages for pain and suffering of the second plaintiff

The sum of $40,000 awarded to the second plaintiff was made up as follows:

(1) Fractured neck of left femur $ 20,000

(2) Fracture of the medial $ 10,000

mallelolus of left ankle

with fixation

(3) Fracture of right tibia with $ 7,000

internal fixation

(4) Fracture of right superior $ 6,000

and inferior pubic rami

(5) Fracture of right talus $ 2,000

(6) Rib fracture $ 2,000

(7) Multiple scars $ Nil

(8) Cerebral concussion $ 500

$ 47,500

Discount for overlapping $ 7,500

Award $ 40,000

The principles on which an appellate court will interfere with a lower court`s assessment of damages is now well settled. In Flint v Lovell at p 360 Greer LJ said:

In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court (the Court of Appeal) should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.

This principle was followed in Owen v Sykes and by Chao Hick Tin J in Peh Diana & Anor v Tan Miang Lee . However, in considering whether an award is too low or too high it would be right to look at the separate items which make up the whole as only then could it be determined whether the award is too low or too high. As Lord Fraser of Tullybelton pointed out in Lai Wee Lian v Singapore Bus Service (1978) Ltd at p 326:

It is of course true that at the end of the day the total sum awarded is what matters to both parties. But that does not mean that the component items do not have to be separately considered. They are the necessary parts which make up the whole, and the only proper way of deciding whether the global award is too low or too high is by assessing the separate items and arriving at a fair total.

Bearing this in mind and having regard to the range of figures submitted by counsel for the second plaintiff and counsel for the defendant for four of the specific injuries to the second plaintiff and the amounts the assistant registrar assessed as the correct amounts of compensation for those injuries, I am put on inquiry as to whether his assessments for those injuries were too low. They are the following:

Injury Second plaintiff`s Defendant`s Amount

figure figure assessed

(1) Fractured neck $35,000 $18,000 $20,000

of left femur

(2) Fracture of the $15,000 $ 7,000 $10,000

medial mallelolus

of left ankle with

fixation

(5) Fracture of right $ 4,000 $ 1,500 $ 2,000

talus

(7) Multiple scars $ 7,000 $ Nil $ Nil

The resultant effect of the second plaintiff`s injuries is a limitation of movement of her left hip and left ankle; a shortening of her left lower limb, and avascular necrosis of her left femoral head and osteoarthritis of the left hip joint.

In addition to this there is the question of the discount of $7,500 for the overlapping of injuries which served to reduce the award for pain and suffering from $47,500 to $40,000. In my view a question of principle arises here which should be addressed.

The assistant registrar failed to rationalize the injuries and the resulting disabilities with the cases referred to him by counsel in arriving at the figures he allotted for each specific injury. In his grounds of judgment he said:

Having regard to the nature, extent and treatment for the injuries and in the light of the authorities cited, I am of the view that the following awards in respect of pain and suffering and loss of amenities would be fair and reasonable.

In view of this it behoves me to review his figures for the four specific injuries I have listed above.

Fractured neck of left femur

Both counsel are agreed that the best authority for this type of injury is the case of Seow How Hwa v Soh Seow Poh where a sum of $32,000 was awarded for pain and suffering and loss of amenities. But that sum also included other elements, namely, the presence of scars and the loss of prospect of marriage. However, the second plaintiff`s injury is much more severe and the disability greater. The second plaintiff`s counsel submitted that $30,000 would be fair and reasonable whilst the defendant`s counsel submitted that the assistant registrar`s assessment of $20,000 was fair. In my view $20,000 was much too much on the low side and therefore erroneous. $27,000 is what I think to be a fair and reasonable compensation for the pain and suffering and the disability suffered by the second plaintiff for this injury.

Fracture of the medial malleolus of the left ankle with fixation

The best authority for this type of injury is Francis Ouyang Yong Hua v Lim Eng Keng relied on by both counsel where $13,500 was awarded for a closed fracture of the right medial malleolus which was treated conservatively in a plaster cast. The limitation of movement of the ankle was the same. There is no reason why the second plaintiff should not have been awarded an amount closer to $13,500. I would therefore revise the assistant registrar`s award for this injury to $12,000.

Fracture of right talus

The fracture to the right talus appears to have been a minor injury which had healed completely and which does not appear to have impeded the movement of the right ankle. The assistant registrar`s award of $2,000 is eminently fair and reasonable.

Multiple scars

The assistant registrar seems to have been persuaded by the defendant`s counsel that as there was no skin loss and no keloid formation but as the scars on the left thigh and on the two legs below the knee joints were surgical scars, no award should be made. I think this approach is wrong. The surgical scars were the direct consequence of the injuries sustained in the accident. They are permanent but not unsightly as keloids would be. In the second plaintiff`s case all three scars were prominent particularly the one on the right thigh and would inhibit her mode of dress. This in my view is a factor which should be taken into account in the case of a young woman. The unsightliness of the scar only goes to the quantum. It was on this basis that I awarded a male plaintiff a...