Mohammad Fadhil Bin Mohammad Anis v Muhammad Faizal Bin Abdullah

• Judge: Loh Hui-min
• Judgment Date: 01 August 2022
• Neutral Citation: [2022] SGDC 169
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 40 of 2020, Assessment of Damages No 491 of 2020
• Citation: [2022] SGDC 169
• Published date: 16 August 2022
• Year: 2022
• Hearing Date: 15 December 2021,09 March 2022,22 March 2022,14 June 2022,15 July 2022
• Plaintiff Counsel: Cheng Kim Kuan (K K Cheng Law)
• Defendant Counsel: Lin Hui Yin Sharon, Cheong Yong Liang Daniel and Lee Jiale (Withers KhatttarWong LLP)
• Subject Matter: Damages,Measure of damages,Personal injuries cases

Deputy Registrar Loh Hui-min: Introduction

This is an assessment of damages (“AD”) arising from a traffic accident which occurred on 4 February 2017. The Plaintiff, then aged 19 years old, sustained personal injuries in a collision between the motorcycle he was riding and the Defendant’s vehicle (“the Accident”).

Pursuant to a consent interlocutory judgment entered on 20 August 2020, the Defendant is to pay 85% of the damages assessed to be due to the Plaintiff.

The disputed heads of claim

Parties have agreed to a sum of $500 for transport expenses¹ and a sum of $3,000 for future medical expenses².

As for the Plaintiff’s medical expenses, he confirmed at the AD hearing on 15 December 2021 that his claim is only for medical expenses incurred after his NS release on 12 April 2018.³ These are listed as items 14 to 29 of the List of Medical Expenses⁴ annexed to his affidavit of evidence-in-chief (“AEIC”). The total sum of these items is $859.87, and this is not disputed by the Defendant.

In the premises, only the heads of claim for (i) pain and suffering; and (ii) loss of earning capacity (“LEC”) remain for assessment. I consider these in turn.

Damages for pain and suffering

Damages for non-pecuniary losses (like pain and suffering) do not lend themselves to straightforward mathematical calculation and are difficult to quantify. As the Court of Appeal observed in Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”) (at [9]), the guiding principle is that of “fair compensation”, which means that compensation ought to be reasonable and just. It need not be “absolute” or “perfect”.

In assessing the quantum of damages to award for each injury, I obtain guidance from the indicative ranges of awards published in Charlene Chee et al, Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”) as well as various precedent cases including those summarised in digest (e.g., in Carrie Chan et al, Practitioner’s Library – Assessment of Damages: Personal Injuries and Fatal Accidents (Lexis Nexis, 3rd Ed, 2016) (“the Blue Book”)). I emphasise however, that whilst these give a sense of the possible award for each type of injury, each case must ultimately turn on its own particular facts (see Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR(R) 178 (“Ronnie Tan”) at [11]).

Finally, given that the Guidelines were rendered and many of the cited precedent cases decided, several years ago, the awards are adjusted upwards to account for inflation where necessary (see Ronnie Tan at [18]).

Head / brain injury Approach used to quantify damages

A preliminary issue arises as to whether it will be appropriate to adopt the “component approach” in assessing the quantum of damages to be awarded for the Plaintiff’s head/brain injury.⁵ The “component approach” was set out in Tan Yu Min Winston v Uni-Fruitveg Pte Ltd [2008] 4 SLR(R) (at [25] – [26]) and endorsed by the Court of Appeal in Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Samuel Chai”) (at [48]). In gist, the injuries and impairments are classified into three domains which are then separately assessed: structural injury (e.g., brain oedema, subdural, extradural subarachnoid haematoma, brain contusion, loss of consciousness); psychological injury (e.g., depression, mood swings, anger, anxiety); and cognitive impairment (e.g., loss of spatial, visual, long- and short-term memory, intellect (in terms of IQ), learning ability).

In my judgment, it will be appropriate to adopt the “component approach” here. The advantages of such an approach were recognised by the Court of Appeal in Samuel Chai (at [48]):

… As we see it, such sub-itemisation was no more than an instrument to aid the court to determine what would be a fair and reasonable quantification for a particular injury or disability having regard to precedents. It enables the court to address the different aspects of pain, suffering and loss of amenities arising out of an injury systematically. …

The fact that the Plaintiff’s head/brain injury is allegedly ‘less serious’ than in other cases,⁶ does not detract from the fact that there are separate and distinct aspects of the Plaintiff’s head/brain injury that will benefit from being separately assessed in a systematic manner.

Furthermore, the Defendant’s concern that sub-itemisation will lead to over-compensation⁷ is misplaced. As the Court of Appeal in Samuel Chai noted (at [49]), the component approach where properly applied will prevent over-compensation rather than encourage it. Nevertheless, I am mindful of the reminder in Samuel Chai (at [49]) that “the overall quantum must be a reasonable sum reflective of the totality of the injury”. I therefore continue to have regard to precedents where the “global approach” was adopted, insofar as they provide a backdrop or check against which awards can be placed, to ensure that the overall quantum of damages awarded is reasonable and reflective of the totality of the injury (see Lee Wei Kong (by his litigation representative Lee Swee Chit) v Ng Siok Tong [2012] 2 SLR 85 (at [14])).

Structural Injury

When first admitted, the Plaintiff was documented to have a Glasgow Coma Scale (“GCS”) score E3 V2 M5 (10 out of 15).⁸ He was diagnosed with a left occipital condyle fracture which was treated conservatively.⁹ As for the bleeding in his brain, it was described as a “small foci of haemorrhage in the right frontal intracranial region” in one report¹⁰ and “small subarachnoid haemorrhages in bilateral frontal lobes” in another¹¹. This discrepancy notwithstanding, a CT scan performed on 13 February 2017 showed that the bleeding had resolved on its own.¹² The Plaintiff underwent a brain MRI on 19 April 2017 which revealed findings suggestive of diffuse axonal injury.¹³ He was noted to have returned to a full GCS score by 19 May 2017.¹⁴ No further neurosurgical intervention or neurological treatment was required.¹⁵

The main bone of contention here is whether the Plaintiff continues to suffer from a residual neurological abnormality in the form of a subtle weakness in his right arm and leg. This was the conclusion of the Plaintiff’s expert, Dr Ho King Hee¹⁶ (“Dr Ho”), after his physical examination of the Plaintiff.¹⁷ The Defendant’s expert Dr Chong Piang Ngok¹⁸ (“Dr Chong”), who had also examined the Plaintiff, disagreed for the following reasons:¹⁹ Based on the CT and MRI scans, the Plaintiff suffered a more severe injury to the right side of the brain which should result in weakness to the left side of the body, but Dr Ho did not find evidence of any left sided weakness. Dr Ho also did not find any weakness to the Plaintiff’s right facial muscle, which would be inconsistent with his suffering from a right sided weakness due to brain injury. Finally, Dr Sharon Low (“Dr Low”), one of the Plaintiff’s attending doctors, had stated in her report that the Plaintiff did not suffer from any focal neurological deficit as of 19 May 2017.²⁰ As such traumatic injuries improve or (at worse) remain static over time, the Plaintiff’s condition ought not to have deteriorated. Dr Low did not testify as her attendance was dispensed with by parties and her report admitted into evidence as is.

When cross-examined, Dr Ho agreed that the Plaintiff suffered a more severe injury to the right side of the brain and that one will expect more neurological deficits on the opposite side of the body (i.e., on the left side).²¹ However, he denied that the foregoing was inconsistent with his finding of subtle weakness in the Plaintiff’s right arm and leg:²² A: I will regard this finding as unexpected but not inconsistent with the fact that the Pf had diffuse axonal injury, which means that there would have been damage to both sides of the brain.

Because the damage is not necessarily symmetrical, it may be that on the left side of the brain, parts of the brain that are responsible or motor power on the right side of the body were affected to a greater extent than on the right side of the brain. While I have said that we would expect, generally speaking, more left sided signs and symptoms, in this particular case because of the documented bilateral brain injuries, weakness on the right side of the body is possible.

Having considered the medical evidence in its totality, I find that the detection of subtle right arm and leg weakness, may well boil down to a legitimate difference of medical opinion. Dr Chong testified that a score of 5- was “so subtle that neurologists may disagree with each other”.²³ Dr Ho (who himself described the weakness as “subtle”) testified that the detection of this weakness would depend on the examiner, the technique he/she employed, and the clinical question posed to him/her.²⁴ More pertinently however, it appears to me that even if the weakness existed, it was so insignificant that any damages for pain and suffering awarded for it would be nominal. Dr Ho himself recognized that “[the] subtlety of the weakness may have been such that the patient himself might not be aware of it” [emphasis added in bold].²⁵ He observed that the Plaintiff did not complain of any right arm weakness and whilst the Plaintiff did complain about his right leg, his complaint “was largely orthopedic”.²⁶

As regards the appropriate quantum of award for structural damage, the Plaintiff submits for an award of $25,000 for the skull fracture and $53,000 for the diffuse axonal injury.²⁷ For the latter, the Plaintiff relies on Muhamad Ilyas Mirza Abdul Hamid v Kwek Khim Hui [2004] SGHC 12 (“Muhamad Ilyas”). In Muhammad Ilyas, the plaintiff suffered from a diffuse axonal brain injury (admitted into hospital with GCS score of 8) and right orbital wall fracture, right malar fracture, bilateral mandible fractures. As a result, he had post-accident amnesia, had to...