Lim Xueru and Another v Lim Kai Meng

• Jurisdiction: Singapore
• 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)
• Docket Number: Suit No 1855 of 1989
• Plaintiff Counsel: R Karuppan Chettiar (Murphy & Dunbar)
• Date: 16 October 1992
• Published date: 19 September 2003
• 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...