M Mallika v Pang Kok Soon

• Jurisdiction: Singapore
• Judge: Teoh Ai Lin
• Judgment Date: 22 January 2001
• Neutral Citation: [2001] SGDC 22
• Published date: 19 September 2003
• Year: 2001
• Citation: [2001] SGDC 22
• Court: District Court (Singapore)

JUDGMENT:

Grounds of Decision

1. This was a personal injury claim by the plaintiff Ms M Mallika arising out of an accident that occurred in a carpark in Simei Street 4. I found Ms Mallika 60 % contributorily negligent in the accident and gave her judgement for 40 % of her claim. She is dissatisfied and has appealed against the following parts of my judgement :

i. the degree of her liability and\or contributory negligence, but not the version of the accident

ii. the multiplicand used in awarding post-trial loss\loss of future earnings

iii. the award of pre-trial loss for year 2000 to date of judgement

The Accident

2. On 22 February 1998 at about 3.30 pm Ms Mallika was riding a motorcycle in the carpark of Block 233 Simei Street 4 when a collision occurred between her motorcycle and a car driven by the defendant Mr Pang Kok Soon. Ms Mallika was then a property agent on her way to meet a client in the vicinity.

3. Ms Mallika and Mr Pang gave conflicting accounts of the accident. Ms Mallika said that Mr Pang's car shot out suddenly from a carpark lot on her left and collided into her motorcycle causing her to be thrown to the right. Mr Pang denied that he was coming out of a parking lot as alleged by Ms Mallika. He had in fact just come back from lunch with his family and was looking for a parking lot. He saw 2 lots on his right and was turning right into an empty lot when Ms Mallika who was attempting to overtake him on his right collided into the front right side of his car.

4. After hearing parties and assessing the other evidence, I accepted Mr Pang's version of the accident. I was of the view that Mr Pang had sought to embellish certain aspects of his evidence relating to the action he had allegedly taken before he turned right into the parking lot. However Ms Mallika's account of the accident had numerous inconsistencies and was not consistent with the damage to Mr Pang's car [ Exh. D 1 ], and I did not find her a truthful witness. On balance I found Mr Pang's account the more probable one, and I rejected Ms Mallika's account. On this there is no appeal, and I set out below my findings as to the accident :

i. Mr Pang was travelling in the carpark looking for a parking space when he saw an empty lot on the opposite side to his right

ii. Ms Mallika was travelling in the same direction but to the rear of Mr Pang's car prior to the accident

iii. the road they were travelling on was a two-way road but not demarcated by any middle road line, and there were parking lots for vehicles on both sides. It was not a broad road, but there was just enough space for 2 cars travelling in opposite directions to pass through [ Exh. P3A to 3 C ].

iv. Mr Pang without giving adequate notice to Ms Mallika suddenly turned right into the parking lot to his right

v. Ms Mallika was then attempting to pass Mr Pang's car on the right

Apportionment of Liability \ Contributory Negligence

5. I rejected Mr Pang's evidence that upon seeing the empty parking lots he had slowed down, switched on his right signal light, stopped and checked his rear and right wing mirror before executing the turn. It was highly improbable that if he had done all of these things Ms Mallika would have attempted such a dangerous thing as to pass him on the right when he was attempting to turn right into the parking lot. Moreover if Mr Pang had checked his rear and side mirror as he claimed to have done, he would have seen Ms Mallika but his evidence was that he didn't see her then. However there was no evidence or allegation that Mr Pang was driving too fast in the circumstances, and this was unlikely as he had been looking for an available parking lot immediately prior to the collision. Having regard to all the circumstances, I found that Mr Pang had breached his duty of care to Ms Mallika and was negligent in failing to give adequate notice of his intention to turn right into the parking lot on the opposite side.

6. On the part of Ms Mallika I found that she was contributorily negligent in failing to keep a proper lookout and to have proper control of her vehicle, in travelling at an excessive speed in the circumstances, and in attempting to pass Mr Pang when it was unsafe to do so. She was at all times the vehicle travelling at the rear and had an unobstructed view of Mr Pang's vehicle. The parties were travelling in a carpark. She was the one attempting to make a pass to the right of Mr Pang's vehicle which was travelling according to the unchallenged evidence of Mr Pang in the middle of the road. In order to pass Mr Pang, she would have had to speed up her vehicle and move past Mr Pang's vehicle which was in the middle of the road, which was a risky manoeuvre for her. It was no part of her case that she had attempted to signal to Mr Pang that she wanted to pass him. If Ms Mallika wanted to overtake Mr Pang's vehicle it was incumbent on her to ensure that she could do so safely. In attempting to overtake Mr Pang in the manner that she did, she had failed to take care for her own safety.

7. Having regard to all the circumstances in which the accident happened, I was of the view that Ms Mallika was more at fault for the accident and that the apportionment of liability should reflect that. I therefore gave her judgement for 40 % of her claim, and against this she appeals.

Ms Mallika's injuries

8. As a result of the accident, Ms Mallika was hospitalised and suffered a comminuted intraarticular fracture of the proximal tibia of her left leg. She underwent an open reduction and internal fixation of the fracture, and was plated for some five and a half months. She was on medical leave until November 1998. The resulting disability was a restricted range of motion in her left knee and foot, and she could not stand or walk for long periods of time. Ms Mallika's injuries and resulting disability were not in dispute.

9. Almost a year after the expiry of her medical leave for the accident, Ms Mallika went dancing at a party held at a lounge on 5 September 1999. She had told the doctors that she was accidentally kicked while dancing and fell to the floor. However at trial, she was inconsistent in her evidence as to whether she was kicked before she fell. She suffered a refracture of the left tibia at the original fracture site. She was in a cast until 14 October 1999.

10. Ms Mallika called 2 doctors in support of her claim, Asst Prof P Thiagarajan ("Dr Raj") and Dr David Chua Thai Chong ("Dr Chua"), while Dr WC Chang ("Dr Chang") was called in support of the defendant Mr Pang. The 3 doctors were generally in agreement that there was a significant risk that Ms Mallika would develop pre-mature osteoarthritis, and was likely to require a knee replacement operation. Dr Raj and Dr Chang however differed as to the likely future cost of such an operation.

Ms Mallika's claim for damages

11. Ms Mallika is a trained and qualified senior operating theatre nurse. In August 1996 she embarked on a new career as a property agent and was a full time property agent for about one and half years before the accident in February 1998. After the expiry of her medical leave for her injuries resulting form the initial accident and before her refracture, she returned to work as a property agent. However she said that she could do so only with the help of friends and with difficulty, and depended mainly on referrals. After the expiry of the medical leave for the refracture, she said she could not work as a property agent anymore because of her injury. Moreover because of the long layoff if she wanted to return to the property line, she would have to start all over again. She started work as a part-time operating theatre nurse in February 2000, and she said she could only work 3 times a week because of her disability.

12. The parties had before the trial agreed on the quantum for various heads of special damages themselves. At trial the dispute on quantum centred on Ms Mallika's claim for pre-trial loss of earnings, future loss of earnings and her future medical expenses.

Refracture

13. I disallowed Ms Mallika's claim for pre-trial loss of earnings in the 3 month period she was on medical leave following the refracture ( 5 September 99 to 9 December 99 ). On this finding there is no appeal, but for completeness I set out briefly my reasons for this finding.

14. Ms Mallika was inconsistent in her evidence in court as to whether she was kicked before she fell while dancing. However the doctors confirmed that she had told them that she was kicked while dancing. Although the refracture occurred in the original fracture site, the opinion of the doctors was that the refracture could not have occurred spontaneously...