Mark Amaraganthan Selvaganthan v Cheung Man Wai

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 30 September 2015
• Neutral Citation: [2015] SGHC 253
• Court: High Court (Singapore)
• Docket Number: Suit No 485 of 2013
• Year: 2015
• Published date: 03 October 2015
• Hearing Date: 27 March 2015,24 March 2015,26 March 2015,25 March 2015,29 May 2015
• Plaintiff Counsel: Robert Leslie Gregory (L G Robert)
• Defendant Counsel: Ramesh Appoo and Rajashree Rajan (Just Law LLC)
• Subject Matter: Tort,negligence,causation,contributory negligence,damages
• Citation: [2015] SGHC 253

Judith Prakash J: Introduction

In this action, the plaintiff claims damages arising out of a road traffic accident (“the Accident”). At the time of the Accident, the plaintiff was driving a BMW 530i and the defendant was driving a Hyundai Getz.

Background facts

The plaintiff, Mark Amaraganthan Selvaganthan, was working as a “Chief Operating Officer/Line Business Manager” for Credit Suisse AG (“Credit Suisse”) at the time of the Accident. His job was in financial and human resource management and involved long hours in front of a computer.

At the time of the Accident, the plaintiff and his wife were on their way to pick up their children while the defendant, Mdm Cheung Man Wai, had her daughter with her.

The Accident took place on 1 August 2010 at about 6.50pm. Parties had differing accounts as to whether it was still raining at the time of the incident. In any case, both recalled that the road surface was wet at that time and that visibility was not impaired. The plaintiff’s vehicle had exited the Pan-Island Expressway via a slip road branching out into two lanes turning left leading to Jalan Eunos in the direction of Eunos Link, and another three lanes turning right towards Jalan Eunos in the direction of Still Road. The plaintiff had stopped his vehicle on the right lane of the two lanes turning left and was waiting for traffic along Jalan Eunos in the direction of Eunos Link to clear. While his vehicle was stationary, the front of the defendant’s vehicle hit the rear of his vehicle.

The Accident was not the first road traffic accident that the plaintiff was involved in, nor was it his last. In November 2002, the plaintiff was involved in an accident which caused him a flexion-extension injury. He was also involved in at least two other minor accidents in 2014 and one more in 2015.

The parties’ accounts The plaintiff

The plaintiff stated that his vehicle had come to a complete stop in the right lane of the slip road and had not started moving again when the defendant’s vehicle collided into it. At that time, he was leaning forward and looking to his right to ascertain whether the traffic along Jalan Eunos was clear, and his head hit the window on the driver’s side upon the collision. Prior to the collision, he had inspected his rear mirror periodically but had not seen any vehicle behind him.

This impact on his head caused him to lose consciousness for a few seconds and, when he came to, he exited his vehicle and walked to its rear to check on the other driver. At that point in time, he saw the licence plate of the defendant’s vehicle on the road, broken into pieces. He also observed that the rear bumper of his vehicle had two indentations corresponding to the width of the defendant’s vehicle’s licence plate. The plaintiff suggested to the defendant that they move their vehicles in order not to block traffic along the slip road and they then shifted their vehicles to the side of Jalan Eunos. The plaintiff also called for both the police and an ambulance at around this point in time, though he cannot recall if he did so before or after moving his vehicle. The plaintiff stated in court that his wife did not come out of his car at all during the incident and, as she could not drive, he was the one who had driven it to the side of Jalan Eunos.

When the ambulance arrived, the plaintiff received some treatment from the paramedics and he was then taken to the Accident and Emergency Department (“A&E”) at Changi General Hospital (“CGH”). He was physically examined and also underwent an X-ray examination, and was discharged after a few hours with four days’ medical leave and a referral for orthopaedics specialist review. The plaintiff returned to work on Monday, 2 August 2010. However, as he was troubled by the pain and could not wait until the scheduled appointment date, on 3 August 2010, he went to see a general practitioner, who referred him to a neurosurgeon, Dr Lee Kheng Hin (“Dr KH Lee”).

On 5 August 2010, the plaintiff attended a consultation with Dr KH Lee, during which he complained of headaches, neck pain and numbness in his right little finger. The plaintiff was found to have limited neck movements in all directions and decreased sensation in his right little finger, and he was warded for 12 days in Gleneagles Hospital for an urgent MRI scan to be performed on him. Dr K H Lee’s report stated that the plaintiff had lost consciousness for between 10 and 15 seconds after the Accident. While the plaintiff was in hospital, he was treated with physiotherapy, and pain killers. Eventually, as a result of the Accident, he took a total of 119 days’ medical leave.

The plaintiff continued to undergo physiotherapy after his discharge. However, he continued to feel pain and his work performance suffered due to his absences from work for his physiotherapy sessions and his inability to maintain focus. He was also unable to complete his work tasks as he could not sit down for long periods of time as he was required to do. As a result, he was passed over for promotion to the position of Director, a promotion that would have resulted in a salary increment of $10,000 per month. His performance bonus was also affected.

He left Credit Suisse on 3 November 2013 and joined WIPRO, a firm offering professional services such as the upgrading of software, soon after. His pain levels dropped considerably due to the shorter working hours but they escalated after the plaintiff was posted to work in Indonesia for two out of every three weeks. As a result, he resigned from WIPRO in September 2014 and joined Barclays PLC as a vice-president the following month.

The plaintiff now claims damages for “loss of earnings or loss of earning capacity as well as future medical expenses”.

The defendant

The defendant does not deny that her vehicle collided into the rear of the plaintiff’s vehicle and that she ought to have kept a proper lookout. However, she submits that the plaintiff was contributorily negligent by not driving off despite the fact that the traffic along Jalan Eunos was clear. According to the defendant, she had come to a halt behind the plaintiff’s vehicle along the slip road when she observed that the traffic along Jalan Eunos was clear. Believing that the plaintiff’s vehicle would move off, she accelerated, thereby causing the front of her vehicle to collide with the rear of the plaintiff’s stationary vehicle.

The plaintiff and the defendant immediately got out of their respective vehicles. The defendant asked the plaintiff, who did not appear to her to be injured, if he was fine but he did not respond. They then inspected their vehicles for damage. The defendant did not observe any damage to the plaintiff’s vehicle, and her vehicle was similarly unscathed save for the licence plate, which had broken into pieces. It was at this point that the plaintiff said that he would call for an ambulance and only then did parties move their cars. While waiting for the ambulance’s arrival, the defendant observed the plaintiff to be pacing up and down while he spoke on his mobile phone. It should be noted that as the plaintiff’s wife cannot drive, the plaintiff had telephoned his father to ask him to come to the site of the incident and drive his car away. This information emerged through cross-examination of the plaintiff.

When the ambulance arrived, the plaintiff was attended to by a paramedic. The plaintiff was thereafter taken away in the ambulance. At no time did the defendant observe the plaintiff to be unconscious.

The defendant was subsequently offered composition in respect of an offence of Careless Driving under r 29 of the Road Traffic Rules (Cap 276, R 20, 1999 Rev Ed), which she accepted.

The issues

The plaintiff pleaded in the Statement of Claim that he suffered a flexion-extension injury to his neck with a C5/6 disc prolapse as a result of the defendant’s negligence.

In his closing submissions, he also claimed to have suffered from the following injuries as a result of the Accident: intervertebral disc desiccation at C3/4 to C5/6 with loss of disc height at C4/5 and C5/6 levels; minimal narrowing of the exit foramina at C3/4 levels; at the C4/5 level, a right facet joint arthropathy contributing to mild narrowing of the right exit foramen; at the C5/6 level, generalised disc bulge indents on the anterior epidural space with right-sided paracentral protrusion contributing to mild narrowing of right exit foramen; at the C6/7 level, a mild disc bulge indent of the anterior epidural space; loss of cervical lordosis; bilateral occipital neuralgia with back aches radiation from the neck upwards; and decreased sensation in his right little finger, spreading to this thumb.

The injuries at [18(a)] to [18(h)] above may be those identified by one Dr Kenneth Sheah (“Dr Sheah”) who examined the plaintiff on 12 March 2015. The plaintiff was referred to Dr Sheah by Dr KH Lee and had sought leave to adduce Dr Seah’s report into evidence by way of Summons No 1289 of 2015, which was heard on the first day of the trial. I dismissed the application in view of the prejudice that would be caused to the defendant by the admission of further evidence at that late stage. There is therefore no evidence in the present proceedings that the plaintiff is currently suffering from the stated injuries, though he has adduced sufficient evidence of a spinal condition.

The defendant concedes that she was primarily liable for the Accident but submits that the plaintiff was contributorily negligent because he stopped suddenly. Additionally, the defendant submits that the plaintiff could not have suffered any flexion-extension injury to his neck as a result of the Accident and that the symptoms complained of are in fact attributable to the plaintiff’s pre-existing cervical spondylosis, a degenerative disc disease of the cervical spine.

The plaintiff’s case can be...