Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 05 November 2018
• Neutral Citation: [2018] SGCA 74
• Plaintiff Counsel: Ramasamy K Chettiar and Wee Qianliang (Central Chambers Law Corporation)
• Docket Number: Civil Appeal No 162 of 2017
• Date: 05 November 2018
• Hearing Date: 17 August 2018
• Subject Matter: Personal injuries cases,Damages,Measure of damages
• Published date: 09 November 2018
• Defendant Counsel: Fendrick Koh (United Legal Alliance LLC)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 74
• Year: 2018

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This appeal raises two issues of principle concerning the measure of damages in personal injury cases. The first is the proper approach to assessing damages for pain, suffering and loss of amenity where the claimant has suffered multiple serious injuries. The second is the proper approach to assessing damages for future loss in the form of the costs of managing the possible onset of a medical condition which would be attributable to an injury that was caused by the defendant’s negligence.

Background

The respondent, Mr Yeo Chee Siong (“Mr Yeo”), is 64 years old this year. He was a carpenter for a company called Salpac (S) Pte Ltd (“Salpac”) for nearly two decades. Every day before dawn, he was ferried to work from Woodlands, where he stayed, on a lorry owned by Salpac and, in the later part of his career with Salpac, driven by his colleague, Mr Chew Kong Seng (“Mr Chew”). On the morning of 29 December 2012, Mr Yeo boarded the lorry but did not make it to work. The lorry had collided into a bus as result of being carelessly driven by Mr Chew. The accident caused Mr Chew’s death. Mr Yeo, on the other hand, suffered serious injuries to his head and body. Although he has since made good recovery, he survives with permanent cognitive impairment of some measure, and with an aching and debilitated frame. He can no longer return to his trade and now works as a cleaner. In the event, he sought to recover damages in negligence from Salpac as well as from Mr Chew’s estate, which is being administered by Mr Chew’s widow, Mdm Lua Bee Kiang (“Mdm Lua”), the appellant.

In December 2015, Mr Yeo obtained interlocutory judgment against Mr Chew’s estate and withdrew his claim against Salpac. The matter proceeded before the High Court for Mr Yeo’s damages to be assessed. In August 2017, the High Court Judge (“the Judge”) awarded Mr Yeo damages in the total sum of $576,626, and the reasons for her decision are set out in Yeo Chee Siong v Salpac (S) Pte Ltd and another [2017] SGHC 304 (“the GD”). The Judge arrived at the total sum by using the “component” method for assessing damages, by which she first awarded separate amounts for each item of loss and then added up the amounts to arrive at the total sum. Out of the total sum, $96,826 was for four items, namely, pre-trial loss of earnings, medical expenses, nursing home expenses and transport expenses. Before the Judge, Mdm Lua did not dispute that Mr Yeo was entitled to recover for that amount. But she challenged his claim for damages for four other heads of loss, namely, (a) pain, suffering and loss of amenity; (b) loss of earning capacity; (c) loss of future earnings and (d) cost of future nursing care.

The Judge allowed Mr Yeo’s claim on each of those four items. She awarded Mr Yeo $326,000 for pain, suffering and loss of amenity. This comprised $200,000 for his head injuries and $126,000 for his bodily injuries. She awarded him $72,000 for loss of future earnings and $5,000 for loss of earning capacity. And she awarded him $76,800 for the cost of future nursing care. In making this award, the Judge took into account the fact that Mr Yeo’s brain injury had increased his risk of developing dementia in the last two to three years of his life, and that if the condition did manifest, he would need to be institutionalised. Accordingly, the award was for the cost of being placed in a nursing home for two years. In sum, the Judge allowed substantially the whole of Mr Yeo’s claims. Mdm Lua now appeals against the Judge’s decision on each of those four heads of loss.

Mdm Lua argues that the Judge’s award was manifestly excessive. On Mr Yeo’s pain, suffering and loss of amenity, she complains that the Judge’s award is based on a misapplication of the relevant assessment guidelines, does not account for overlapping injuries and is out of line with awards in previous cases where the claimants survived with much more severe permanent disabilities than Mr Yeo. Mdm Lua also argues that the Judge was wrong to apply the component method in this case, and asks that the award be reduced from $326,000 to $179,000. On Mr Yeo’s loss of future earnings, Mdm Lua criticises the Judge for using a multiplier and a multiplicand that fail to account for contingencies, and asks that the award be reduced from $72,000 to $12,000. Mdm Lua also contends that Mr Yeo should be awarded nothing for loss of earning capacity because it has not been established on the evidence. And she argues that he should receive nothing for the cost of future nursing care because it is a speculative loss. In particular, she submits that Mr Yeo has not proved on a balance of probabilities that he will develop dementia in the future, and therefore ought not to be awarded the cost of nursing care for the purpose of managing that condition.

Mr Yeo makes opposing submissions in relation to each of these four heads of loss. On the award for pain, suffering and loss of amenity, he contends that the Judge arrived at the right quantum by correctly applying the component method. He also submits that the award is not out of line with the precedents because he suffered more serious injuries than the claimants did in the cases relied upon by Mdm Lua. On loss of earning capacity and loss of future earnings, he disagrees with Mdm Lua that the Judge’s awards were not supported by the evidence. He also submits that the Judge’s award for loss of future earnings did account for the relevant contingencies. And he defends the Judge’s award for cost of future nursing care on the basis that it is supported by the evidence.

Issues to be determined

Our task is to determine whether the Judge’s awards of $326,000 for Mr Yeo’s pain, suffering and loss of amenity, $5,000 for his loss of earning capacity, $72,000 for his loss of future earnings and $76,800 for the cost of future nursing care are manifestly excessive or otherwise unjustified as a matter of fact or law. We shall address each item of loss in turn.

Issue 1: Pain, suffering and loss of amenity

Mdm Lua argues that the Judge was wrong to use the component method because it “leads to a situation of over compensation and is not appropriate for a case such as this” where multiple injuries have been sustained. Mr Yeo, on the other hand, submits that the Judge did not err in adopting this method. He refers to a number of cases which, in his view, show that the method is appropriate in the present context. In brief, we agree with Mdm Lua that the award of $326,000 is manifestly excessive. It seems to us that the error in the award consists in a failure to consider whether the aggregate sum yielded by the component method reflects the totality of Mr Yeo’s injuries and is in line with past awards. In our judgment, $200,000 is the correct amount. We turn now to explain our reasons, beginning with the applicable principles.

Applicable principles

As with any claim in the tort of negligence, the basic principle for determining the quantum of damages for personal injury is to award the claimant “full compensation” for his loss (see Peter Cane and James Goudkamp, Atiyah’s Accidents, Compensation and the Law (Cambridge University Press, 9th Ed, 2018) (“Cane and Goudkamp”) at p 131). This means that the award should, as far as money can accomplish, restore him to the position that he would have been in had the injury not been sustained (see the House of Lords decision of Livingstone v The Rawyards Coal Co (1880) 5 App Cas 25 at 39 per Lord Blackburn). In the case of pecuniary losses, such as lost earnings, the idea of full compensation gives rise to little difficulty, at least in principle. However, where non-pecuniary loss is concerned, such as pain, suffering and loss of amenity, full compensation is inherently difficult to measure because such loss cannot be assessed by mathematical calculation. The guiding principle, in this context, is therefore that of “fair compensation”, in the words of Field J at first instance in the English Court of Appeal decision of Phillips v The London and South Western Railway Co (1879) 5 QBD 78 at 80. This means that compensation ought to be reasonable and just, and need not be “absolute” or “perfect” (see Cane and Goudkamp at pp 131–132 and the English Court of Appeal decision of Fletcher v Autocar and Transporters Ltd [1968] 2 QB 322 (“Fletcher”) at 335A–B per Lord Denning MR).

Guidelines have been developed over time in precedents and treatises as to the likely level of award for a particular type of injury, and the task of the court in each case is to apply these guidelines in a way that results in fair compensation for the claimant. Singapore courts have traditionally employed two methods for doing so (see the decision of this Court in Poh Huat Heng Corp Pte Ltd and others v Hafizul Islam Kofil Uddin [2012] 3 SLR 1003 at [32] per Chao Hick Tin JA). The first is the component method, which we have referred to, by which the loss arising from each item of injury is individually quantified and then added up to estimate the overall loss that the claimant has suffered. The second is the global method, by which all the injuries sustained by the claimant are considered holistically to arrive at an estimation of his overall loss. The principle behind the component method is that damages should be awarded for losses that may properly be regarded as distinct or discrete (see the High Court decision of Tan Yu Min Winston (by his next friend Tan Cheng Tong) v Uni-Fruitveg Pte Ltd [2008] 4 SLR(R) 825 (“Winston Tan”) at [16] per Chan Seng Onn J). A concern regarding this method, however, is that the overall quantum must be a reasonable sum that reflects the totality of the claimant’s injuries (see the decision of this Court in Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Samuel Chai”) at [49] per Chao Hick Tin JA). And this last-mentioned point,...