Low Swee Tong v Liew Machinery (Pte) Ltd

• Jurisdiction: Singapore
• Judgment Date: 22 May 1993
• Date: 22 May 1993
• Docket Number: Suit No 1775 of 1985
• Court: High Court (Singapore)

Low Swee Tong

Plaintiff

and

Liew Machinery (Pte) Ltd

Defendant

[1993] SGHC 113

MPH Rubin JC

Suit No 1775 of 1985

High Court

Civil Procedure–Appeals–Appeal against assistant registrar's award of damages–Circumstances under which appellate court would interfere with award–Damages–Measure of damages–Personal injuries cases–Quantum–Distinction between loss of future earnings and loss of earning capacity–Whether award for impotency unusually high

The appellant (“Low”) was employed by the respondent, Liew Machinery (Pte) Ltd (“Liew Machinery”). He was carrying out repairs on a lorry when the jack holding it in place slipped and the lorry surged forward and injured him. His right knee joint was injured, his pelvis fractured and there was partial rupture of his urethra. He was twenty years old at the time of the accident. Following these injuries, Low had some residual disability, namely, impotence, urethral strictures and early osteoarthritis of his right knee joint. Low sought damages from Liew Machinery, which accepted 90% liability, with damages to be assessed. However, Liew Machinery was dissatisfied with the amount of damages awarded by the assistant registrar and appealed against three items of the award: (a) $45,000 for impotency; (b) $41,202.50 for loss of pre-trial earnings; and (c) $137,475 for loss of future earnings.

Held, allowing the appeal in part:

(1) An appeal judge would not readily interfere with an award of damages made by the assistant registrar since that decision was arrived at after lengthy examination and cross-examination of the material witnesses, including many specialists: at [9].

(2) An appellate court should not lightly differ from a finding of the trial judge on a question of fact. However, where no question arose as to the credibility of witnesses and the sole question concerned the proper inferences to be drawn from specific facts an appellate court was in as good a position to evaluate the evidence as the trial judge and should form its own independent opinion though it would give weight to the opinion of the trial judge: at [24].

(3) The award for impotency could not be said to be unusually high or out of proportion to damages awarded in the past and it would not be varied: at [13] and [14].

(4) The assistant registrar did not adequately appreciate the medical evidence as to whether Low could continue working as a vehicle mechanic. Low's handicap did not restrict his physical movements, mental agility and dexterity of hand movements. It was likely that, due to the trauma of twelve operations following the accident, Low had been afraid or unable to carry out his job until September 1987, but after that time the medical evidence did not support the conclusion that Low could not have carried on with his vocation as a vehicle mechanic. The award of $41,202.50 for loss of pre-trial earnings was therefore too high and this was set aside and replaced with an award of $25,000, which took into account the problems emanating from osteoarthritis: at [23], [25], [26] and [27].

(5) There was a distinction between loss of future earnings and loss of earning capacity. An award under the head of “loss of earning capacity” would be made when the injured party had resumed the employment he had prior to the injury but there was a real risk that at some time in the future he might have to leave that employment and enter the labour market. The award would be made to compensate him for the disadvantage he would suffer in view of the handicap resulting from the injuries. An award under the head of “loss of future earnings” would be made when the plaintiff was unable to resume his former employment and was forced to take up an occupation which paid him less: at [36].

(6) The evidence did not point to loss of future earnings on a total and permanent basis. However, there was evidence of the onset of osteoarthritis which would necessarily interfere with Low's work. The award of $137,475 for loss of future earnings was set aside and replaced with a lump sum award of $55,000 for loss of earning capacity: at [43] and [44].

Araveanthan v Nippon Pigment (S) Pte Ltd [1992] 1 SLR (R) 167; [1992] 1 SLR 545 (refd)

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

Chi Jau alias Er Ah Jau v Lee Kok Bing [1992] SGHC 181 (folld)

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

Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 (refd)

Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd's Rep 40 (folld)

Flint v Lovell [1935] 1 KB 354 (refd)

Ghulam Hussain v Shaharom [1966] 2 MLJ 207 (folld)

Harry Seah Hong Meng v Tan Siow Cher [1984] 2 MLJ xxix (refd)

Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132; [1977] 1 All ER 9 (folld)

Owen v Sykes [1936] 1 KB 192 (refd)

Smith v Manchester Corporation [1974] 17 KIR 1 (folld)

Tan Yok Joo v Lim Yap Nghee (Suit No 4171 of 1986) (refd)

Nirumala K Pillai (Harry Elias & Partners) for the appellant

Choo Kwan Kiat (Choo & Yap) for the respondent.

Judgment reserved.

MPH Rubin JC

1 On 25 February 1985 the plaintiff issued a writ by his next friend claiming damages from the defendants, his former employers, Liew Machinery (Pte) Ltd for injuries suffered by him whilst at work on 7 March 1984. He was 20 years of age at the time of the accident and was then in the employment of the defendants as a vehicle mechanic.

2 The plaintiff alleged in his statement of claim that whilst he was repairing the braking system of a lorry which was held up in place by a jack, the jack slipped, causing the lorry to surge forward and injure him. He suffered injuries to his right knee joint and fracture of the pelvis with partial rupture of the urethra. Further, as a result of those injuries, the plaintiff suffered some residual disability, namely, impotence, urethral strictures and early osteoarthritis of his right knee joint.

3 The defendants accepted 90% liability and judgment was therefore entered against them by consent under which the plaintiff was ordered to receive 90% of the damages to be assessed. The learned assistant registrar after hearing evidence, including the evidence of specialists, awarded the plaintiff damages as follows:

Agreed special damages	$2,163
General damages
(A)	Pain and suffering
(1)	Haemathrosis of knee	$10,000
(2)	Osteoarthritis at knee	$1,000
(3)	Pelvis and ruptured urethra	$25,000
(4)	Operation scar	$ 2,000
(5)	Impotency	$45,000
(B)	Pre-trial loss of earnings
(1)	From January 1985 to September 1987 ($400 x 32 months):	$12,800
(2)	CPF – from 1985 to April 1986 at 25% and May 1986 to September 1987 at 10%:	$640
(3)	October 1987 to trial at $500 per month – ($500 x 45 months):	$22,750
	CPF at 15%	$3,412.50
		$41,202.50
(C)	Future loss allowed at $650 per month for 15 years ($650 x 12 x 15)
	CPF loss at 17.5%:	$20,475
		$137,475

4 The defendant/appellants being dissatisfied with the amount of damages awarded, appealed against the award in relation to all major items except for items A;2 (osteoarthritis at knee), A3 (fracture of pelvis and ruptured urethra) and A4 (operation scar). However when the appeal was in train, Mr Pillai, counsel for the appellants, informed the court that they would not be pursuing their appeal as respects item A1 (haemathrosis of knee). The appeal was therefore confined to only three items of the award, ie impotency ($45,000), pre-trial loss of earnings ($41,202.50) and loss of future earnings ($137,475).

5 Mr Pillai's main criticism was that the learned assistant registrar's awards were extremely high and way above the norm in respect to impotency and loss of pre-trial as well as future earnings. As regards pre-trial loss he submitted that the figure arrived at by the learned assistant registrar for the relevant period was wrong and in any event there was no medical evidence to support the conclusion that the respondent would be unable to pursue his vocation as a mechanic. His criticism on the award for loss of future earnings was that the learned assistant registrar should have awarded damages for loss of earning capacity rather than for loss of future earnings. Mr Pillai ventured that damages for impotency should not exceed $22,500 inclusive of costs of corrective surgery, damages for loss of past earnings (pre-trial loss) should be $25,000 and the amount for loss of earning capacity should be $20,000.

6 Mr Choo for the respondent contended otherwise. Both counsel were however agreed on one principle that is, in order to justify any reversal of the trial judge's decision on the amount of damages, it would be necessary for the appellate court to be convinced either that the judge acted upon some wrong principle of law or that the amount awarded was so extremely high or very small as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages to which the plaintiff was entitled.

7 The foregoing principle was enunciated by Greer LJ in Flint v Lovell [1935] 1 KB 354 at 360 and was restated by him with clarity in Owen v Sykes [1936] 1 KB 192 at 198 as follows:

… An appeal from a decision of a judge trying a case without a jury with regard to damages is a rehearing of the case, and if we are satisfied that the assessment of damages was made on a wrong principle, we ought to reopen the question of damages and ourselves decide what the proper damages should be. It has been laid down in Flint v Lovell (1), that this court does not readily interfere with the estimate of damages made by a learned judge at the trial. An assessment of...