Muhamad Ilyas Bin Mirza Abdul Hamid v Kwek Khim Hui

• Jurisdiction: Singapore
• Judge: Tai Wei Shyong AR
• Judgment Date: 26 January 2004
• Neutral Citation: [2004] SGHC 12
• Court: High Court (Singapore)
• Year: 2004
• Published date: 30 January 2004
• Plaintiff Counsel: Victor Lim and Petula Wong (Hoh Law Corporation)
• Defendant Counsel: Rama and Fiona Foo (William Chai and Rama)
• Citation: [2004] SGHC 12

On 6 October 1999, the plaintiff, then a 20 year-old National Serviceman, was riding his motorcycle along Upper Changi Road towards Bedok Industrial Park when he collided with the defendant’s van at a road junction. In September 2002, he commenced an action against the defendant in the High Court, and on 15 October 2002, interlocutory judgement was entered against the defendant for damages to be assessed with costs and interest reserved to the Registrar.

2 The injuries to the plaintiff were primarily to his head and were serious. According to a report from Tan Tock Seng Hospital dated 28 October 1999, he had sustained the following injuries:

(a) Head injury admitted in coma (Glasgow Coma scale 8) due to diffuse axonal brain injury;

(b) Right orbital wall fracture;

(c) Right malar fracture; and

(d) Bilateral mandible fractures

3 The hearing before me was to assess the damages he was entitled to as a result of these injuries and the consequent long term effects on his functioning. After hearing evidence from both sides, I made the following awards:

(a) Pain and Suffering and loss of amenities: $80,000

(b) Loss of scholarship: $249,769.25

(c) Loss of earning Capacity $100,000

(d) Future medical expenses: $3,000

(e) Special damages $19,070.23

The total amount awarded was therefore $451,839.48. The plaintiff has now appealed against the following awards:

(a) The award for pain and suffering and loss of amenities;

(b) The award for loss of scholarship;

(c) The award for loss of future earnings; or rather, the lack of an award under this head of damage;

(d) The award for loss of earning capacity;

(e) The award of future medical expenses; and

(f) The award of special damages relating to the loss of use of motorcycle.

4 I also awarded the plaintiff interest and costs, but there is no appeal against these orders. I now give my reasons for the various awards which have been appealed.

Background

5 Before turning to the various heads of damage, it would be useful to set out briefly the background to the plaintiff’s claim. The plaintiff is the youngest in a family of three sons, and was educated at Westlake Primary School from 1986 to 1991. He was appointed Head Prefect in his final year there, and awarded the Outstanding Student Award in 1990. In the PSLE examinations, he qualified for the Gifted Education Programme (GEP) and won a Mendaki Award and Scholarship.

6 He was posted to Raffles Institution for this Secondary Education from 1992 to 1995. There, he was in the GEP and also qualified to study a foreign language – he chose French. He eventually obtained 10 Distinctions in his GCE “O” Level Examinations and once again won a Mendaki Scholarship for his outstanding results. He continued his studies at Raffles Junior College and unsurprisingly his results were excellent. He achieved 4 “A”s for his GCE “A” Levels, distinctions in General Paper and French, and a Merit for Mathematics (Special Paper). He also obtained very good scores in the SAT I and SAT II tests, including maximum scores for both Mathematics and Physics in SAT II.

7 In December 1997, the plaintiff commenced serving his national service at HQ Company, HQ 9 Division of the Singapore Armed Forces. He later applied for and was a Scholarship by the Economic Development Board (EDB) in May 1999 to pursue a course of Electrical Engineering starting in the academic year 2000, at a university in the USA. He was in the midst of making applications to various universities in October 1999, when he sustained the injuries which are the subject matter of this suit. In spite of the accident, he was offered a place at University of California (UC Berkeley) to pursue a course in Electrical Engineering and Computer Science, which he accepted.

8 He left for his studies in California in late 2000, however, he soon encountered difficulties with his academic work. Towards the end of his second semester in April 2001, he enrolled in the “Disabled Students’ Program”. He was granted accommodations of a heavily reduced course-load each semester, and also more time to sit for exams, but he was nevertheless unable to complete the course in the usual 3 year period. In the result, the EDB terminated his scholarship and he had to pay S$156,027.79 in liquidated damages. The hearing before me took place during the break between his 3^rd and 4^th year at university. As I understand his evidence, in order to graduate, he is required to complete a certain number of “lower” and “upper” division technical courses, and a certain number of “lower” and “upper” division elective courses. After 3 years, the plaintiff has completed all the lower division technical courses required and 2 upper division technical classes. He had also done most of his lower and upper division elective classes.

9 I now turn to consider the awards made under each head of damage.

Pain and Suffering and Loss of Amenities

10 The plaintiff had through his advocate and solicitor, Mr Lim, claimed a total of $131,000 for pain and suffering and loss of amenities. Mr Lim had cited to me a number of authorities, but it is only necessary to refer to the more relevant ones. In Chua Seng Lee v Ang Teow Koon & Anor (Suit No. 2103 of 1996), the plaintiff, a 24 year-old hairstylist at the time of the accident, had sustained a crushed brain and had been in a coma for 4 months, as well as multiple face and skull fractures. For this he was awarded $120,000. In Teng Kui Thai & Anor v Goh Chwee Kim (Suit No. 70 of 1993), the plaintiff, a 26-year old seamstress at the time, had suffered a comminuted fracture of the left maxilla and a comminuted fracture of both malar complexes. For this she was awarded $20,000.

11 For his part, the defendant through his advocate and solicitor, Mr Rama, argued that the total under this head of damage should be $50,000. Mr Rama too relied on a number of cases but I shall refer to only some of them. In Er Hung Boon v Law Shyan En (DC Suit 1567/1997), the plaintiff was awarded $19,000 agreed damages for fractures of the left malar and the left mandible, superficial abrasions over the left elbow and the right dorsum of the right hand, swelling over the left cheek and loss of consciousness. For memory impairment, $20,000 had been awarded. According to the summary of the case presented to me by Mr Rama, the plaintiff in that case had in that case suffered lapses in concentration span, his immediate verbal memory, delayed verbal memory and recognition memory were impaired, his immediate and delayed visual memory were impaired, and also his visual recall of objects. In Yusuf Bin Darus v Singapore Bus Service (1978) Ltd (Suit 19 of 1997), the plaintiff had suffered a brain injury and skull fracture, for which he was awarded $50,000. He also suffered a fracture to the left orbit, for which he was awarded $3,000, and fractures of 8 teeth, for which he was awarded $8,000. In relation to the fracture of the plaintiff’s right malar, Mr Rama cited the case of AB Rahman Bin Tahir v Johanizam bin Seram & Anor (DC Suit 5719/1997), where the Mr Rahman was awarded $10,000 for fracture of the Malar complex, and also the case of Song Yong Chiat v The Personal Representative of Andre Tng Boon Liat & Anor [2000] MD para 287, where the plaintiff was awarded $5,000 for a fracture of the left malar.

12 With these authorities as a background, it would be helpful to summarise the plaintiff’s injuries in this case. According to his Affidavit of evidence-in-chief, he has no recollection of what happened in the 3 weeks following his accident, from 6 October 1999 to 25 October 1999. After the accident, he says that he had to re-learn many basic skills, including how to speak, but thankfully his memory improved over time. It was, however, one of his major contentions before me that his memory did not ever regain its earlier capabilities – his counsel submitted before me that prior to the accident, he had had “photographic” memory, whereas after the accident, his memory was much poorer. I shall deal with this point later. The plaintiff also alleged that he had hearing and visual impairments, and had also developed an acne problem, as a result of the accident. Further, he experienced sleeplessness and depression as a result of the difficulties he was facing.

13 In his evidence in chief, the plaintiff also complained that other cognitive skills had been affected. For example, while he might be able to remember something, he would not be able to understand it. Also, he said that while he was able to understand something, he might not be able to apply that knowledge. It was these problems that he attributed to his difficulties in University, and his consequent inability to complete his course within the usual amount of time – which was 3 years.

The Plaintiff’s Intellectual function

14 Let me now address specifically the question of the plaintiff’s loss of intellectual function, which formed a major part of his case. The extent of his loss in this respect, if any, would certainly affect the damages that should be awarded under this head, but the relevance of any injury would be far wider. It will be seen that counsel for the plaintiff placed heavy emphasis on his loss of intellectual function in general, and loss of memory in particular, in his claim for loss of scholarship and loss of future earnings. I therefore feel that this question should be dealt with in some detail.

15 Counsel for the plaintiff called 3 medical experts to give evidence. First, counsel called Dr Robert G. Don, a specialist in rehabilitation medicine practising at Mt Elizabeth Medical Centre, to testify on the plaintiff’s behalf. Dr Don had examined the plaintiff on 11 June 2002 for a medico-legal evaluation of the disabilities sustained in the accident, and subsequently produced a report dated 3 July 2002 (PB 89 etc). Before turning to the issue of memory, it is worth, I think, noting certain preliminary observations made by Dr Don in his clinical...