Mohinani Jairaj Shewaram v Tan Hock Soon

• Jurisdiction: Singapore
• Judge: Hairul Hakkim
• Judgment Date: 14 April 2021
• Neutral Citation: [2021] SGDC 74
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2564 of 2016, Assessment of Damages No 667 of 2016
• Published date: 22 May 2021
• Year: 2021
• Hearing Date: 12 April 2019,11 March 2021,06 October 2020,09 September 2020,21 January 2019,08 January 2021,18 October 2019,16 February 2020,14 March 2019,07 July 2020,05 July 2019
• Plaintiff Counsel: Viviene Kaur Sandhu and Jasmine Dhanaraj (Clifford Law LLP)
• Defendant Counsel: Christopher Fernandez and Low Huai Pin (Tan Kok Quan Partnership)
• Subject Matter: Tort,Negligence,Causation,Damages,Remoteness,Indirect damage,Whether damage reasonably foreseeable,Assessment,Expert evidence,Failure to cross-examine,Measure of damages,Personal injuries cases,Overlapping injuries,Whether global or separate award appropriate,Quantum,Complex Regional Pain Syndrome,Loss of earning capacity,Change of employment post-accident
• Citation: [2021] SGDC 74

Deputy Registrar Hairul Hakkim: Introduction

It is not uncommon for victims of road traffic accidents to claim damages for depression arising from the accident. However, where the depression is not a direct result of the accident but instead triggered by subsequent surveillance conducted by private investigators, can the injured person still recover damages for depression? Among other things, this appears to be a novel legal issue in the present case.

The plaintiff’s claim arises out of a road traffic accident (“the Accident”) that occurred on 8 August 2014, when the defendant’s motorcar accelerated and ran over plaintiff’s left foot while the plaintiff was in the midst of getting into the defendant’s motorcar. The plaintiff was the defendant’s employee at the material time.

Interlocutory judgment in the plaintiff’s favour was entered by consent on 29 June 2016 with the issue of damages to be assessed and costs and interests to be reserved to the registrar hearing the assessment (“the AD Hearing”).

Overview

I conducted the AD Hearing over seven tranches where the following witnesses gave their evidence: the plaintiff; Ms Linda Tong – the plaintiff’s wife; Ms Tan Suling, Melissa (“Ms Tan”) – the plaintiff’s occupational therapist; Ms Laura Rebecca Jonathan (“Ms Laura”) – the plaintiff’s clinical therapist; Dr Lim Yin Chin (“Dr Lim”) – the defendant’s medical psychiatrist expert; the defendant; and Mr Goh Seow Kiat – the defendant’s private investigator (“PI”).

The parties agreed to dispense with the attendance of nine medical experts (of whom, eight experts were appointed by the plaintiff and one by the defendant), whose reports were therefore admitted into evidence without any challenge. This decision by the parties, and especially the defendant, left much to be desired in the fact-gathering exercise. As would be apparent from my reasons that follow, several of the arguments made by the defendant in his closing submissions are plainly untenable in the light of his decision not to cross-examine and challenge the medical evidence and/or put his case to the relevant witnesses, bearing in mind the rule in Browne v Dunn [1894] 6 R 67 (see also Seet Melvin v Law Society of Singapore [1995] 2 SLR(R) 186 at [37] and Tan Kok Yong Steve v Itochu Singapore Pte Ltd [2018] SGHC 85 at [44]).

The effect of the defendant’s decision therefore left me with only a single expert in most of the disputed issues. This is pertinent. As noted by the Court of Appeal in Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1 at [26] (“Saeng-Un Udom”), quoting from the Halsbury’s Law of Singapore vol 10 (Butterworths, 2000) at para 120.257: …The court should not, when confronted with expert evidence which is unopposed and appears not to be obviously lacking in defensibility, reject it nevertheless and prefer to draw its own inferences. While the court is not obliged to accept expert evidence by reason only that it is unchallenged, if the court finds that the evidence is based on sound grounds and supported by the basic facts, it can do little else than to accept the evidence. [emphasis in original omitted; emphasis added in italics]

More recently, the Court of Appeal reiterated this point in Armstrong, Carol Ann (executrix of the estate of Peter Traynor, deceased, and on behalf of the dependents of Peter Traynor, deceased) v Quest Laboratories Pte Ltd and another and other appeals [2020] 1 SLR 133 (“Armstrong”) at [90]: … As this court had observed in Saeng-Un Udom, a court is not bound to accept an expert’s opinion merely because it is uncontroverted. However, a court may find that it should accept uncontroverted expert evidence if the opinion was grounded on a sound basis. Hence, it appears to us that the question of whether to accept or reject an expert’s evidence is ultimately not a question of whether and how the evidence is controverted, but whether any eventual view arrived at is supportable in logic and evidence. The court’s determination as to whether it should accept parts of an expert’s evidence (and if so which parts) is guided by considerations of consistency, logic and coherence (see Sakthivel Punithavathi v PP [2007] 2 SLR(R) 983 at [75]–[76]). This requires a scrutiny of the expert’s methodology and the objective facts he had based his opinion upon (see the High Court decision of PP v Choo Peng Kuen [2018] SGHC 230 at [64]). [emphasis in original]

With these preliminary remarks in mind, I turn now to deal with the plaintiff’s claims.

Parties’ submissions on quantum

Before me, the plaintiff claims the following damages in the AD Hearing: General damages: Pain and suffering for orthopaedic injuries: $30,000; Pain and suffering for Complex Regional Pain Syndrome (“CRPS”) Type I: $30,000; Pain and suffering for depression: $15,000; Future medical expenses: $80,706.32; and Loss of earning capacity: $80,000. Special damages: Medical expenses: $5,023.07; Transport expenses: $3,060; and Pre-trial loss of earnings: $18,273.63 (agreed).

In contrast, the defendant submits as follows: General damages: Pain and suffering for orthopaedic injuries and CRPS Type I: $20,000; Pain and suffering for Depression: NIL (no causation); Future medical expenses: NIL or $1800 in the alternative for recurring pain medication; and Loss of earning capacity: NIL or $2,000 in the alternative. Special damages: Medical expenses: $2,930.87 or $5,023.07 (if claim for depression is allowed); Transport expenses: $840; and Pre-trial loss of earnings: $18,273.63 (agreed).

General damages Pain and suffering for orthopaedic injuries and CRPS

For the pain and suffering for his left foot orthopaedic injuries, the plaintiff submits for $30,000.¹ The defendant submits instead that a global award should be made for both the plaintiff’s left foot injuries and CRPS condition, primarily contending that the plaintiff’s left foot fracture has healed and the residual disabilities in respect of the plaintiff’s left foot is largely attributed to the plaintiff’s CRPS condition.²

Whether global award is appropriate

I start with the general proposition stated by Yong Pung How CJ in Seah Yit Chen v Singapore Bus Service (1978) Ltd and others [1990] 1 SLR(R) 490 (“Seah Yit Chen”) at [5] as follows: … When the injuries sustained are related to same part or function of the body, there should only be one award of damages, without any risk of overlapping: where the injuries sustained are to different parts of the body and affect different functions, … it would be appropriate to make a separate award for each head of damage. …

Therefore, as a starting point, a global award is appropriate where the injuries affect the same part or function of the body. However, as the plaintiff points out,³ this is an issue of science that had to be put to the relevant expert witnesses for their medical opinion. As the defendant had elected to dispense with the relevant expert witnesses, there is no leg for the defendant’s argument to stand on and it accordingly fails in limine.

To the contrary, it appears from the legal characterisation of CRPS in Charlene Chee et al, Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”) that CRPS is a psychiatric condition (as opposed to an orthopaedic injury) and is therefore unlikely to be affecting the same function even if the underlying injury stems from the same body part. Here, I also draw support from the decision in Mykytowych, Pamela Jane v V I P Hotel [2016] 4 SLR 829 (“Pamela Jane”) where the Court of Appeal noted that CRPS arises as a “result of damage to, or malfunction of, the central or peripheral nervous system” [emphasis added] (at [81]). In noting so, the Court of Appeal in Pamela Jane went on to disagree with the High Court and awarded a distinct award for the CRPS injury (at [101]).

The defendant attempts to distinguish Pamela Jane on the basis that the CRPS condition was only diagnosed 6 months after the accident in that case and the appellant had complained of pain not only in her initial injury spot but also other parts of her body.⁴ I am not convinced by this argument because in the present case, the plaintiff had also been diagnosed with CRPS about nine months after the Accident (and not immediately after the Accident)⁵ and there is unchallenged medical evidence that the pain extended to areas beyond his initial orthopaedic injuries.⁶ In any event, it is not readily apparent from the decision in Pamela Jane (nor was the argument appears to have been made in that case) that the reason why a distinct award was made for the CRPS injury was because of pain experienced by that appellant in other parts of the body. I therefore decline to award a global award for the plaintiff’s pain and suffering for his left foot orthopaedic injuries and CRPS and proceed to assess them separately.

Left foot injuries

The plaintiff claims for the following orthopaedic injuries to his left foot: left foot and ankle crush injuries with closed undisplaced fracture of the left talar neck and closed fracture of the left calcaneum inferior trabecular; permanent sensory hypersensitivity over the left foot; soft tissue swelling and contusion over the left foot; and superficial abrasions over the left foot.

The above injuries are all documented in the objective medical evidence in the form of medical and radiology reports⁷ except the abrasions over the left foot. The latter injury appears to have been recorded for the first time by Dr Kannan Kaliyaperumal (“Dr Kannan”) in his specialist medical report dated 10 April 2016.⁸ Here, I agree with the defendant’s submission that this injury ought not to be considered because it was not recorded by any of the initial treating doctors from Changi General Hospital (“CGH”).⁹ Unlike the other parts of the defendant’s case,...