Mykytowych, Pamela Jane v V I P Hotel

• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 14 July 2016
• Neutral Citation: [2016] SGCA 44
• Citation: [2016] SGCA 44
• Subject Matter: Assessment,Admissibility of evidence,Evidence,Damages
• Hearing Date: 03 November 2015
• Docket Number: Civil Appeal No 125 of 2015 and Summons No 279 of 2015
• Plaintiff Counsel: Salem bin Mohamed Ibrahim, Ismail bin Atan and Lam Zhenjie Jeriel (Salem Ibrahim LLC)
• Published date: 20 July 2016
• Defendant Counsel: Ramesh Appoo and Rajashree Rajan (Just Law LLC)

Chao Hick Tin JA (delivering the judgment of the court): Introduction

The present appeal is brought by the appellant, Ms Pamela Jane Mykytowych (“the Appellant”), against the assessment of damages made by the High Court judge (“the Judge”) in Mykytowych, Pamela Jane v V I P Hotel [2015] SGHC 113 (“the Judgment”). The respondent, V I P Hotel (“the Respondent”), is a hotel located at 5 Balmoral Crescent, Singapore. On 7 May 2011, while staying at the Respondent as a hotel guest, the Appellant slipped on a puddle of water at the Respondent’s reception area and fell (“the Accident”). She suffered a non-displaced fracture to her left kneecap and a strained ankle as a result. Liability is not an issue as the parties have, by consent, entered into an interlocutory judgment for each party to bear 50% of the liability. The only issue before the Judge and likewise before us pertains to the amount of damages that should be awarded to the Appellant.

While the Appellant has fully recovered from the physical injuries that she sustained as a result of the Accident, she asserts that she has developed two chronic medical conditions known as Complex Regional Pain Syndrome (“CRPS”) and fibromyalgia respectively. The Appellant says that these medical conditions have caused her great pain and suffering, such that (among other things) she can no longer continue to work in the company that she owns, Care and Performance Limited (“CPL”), resulting in significant financial losses. These financial losses form the bulk of her claim against the Respondent.

Apart from the appeal, there is also a summons before us, Summons No 279 of 2015 (“SUM 279/2015”), in which the Appellant seeks leave to adduce further evidence for the purposes of this appeal.

The material facts The Appellant’s background

The Appellant is a 52-year-old British citizen1Record of Appeal (“ROA”) vol 3 part 1 at p 245 (D.O.B.). who lived in the United Kingdom (“the UK”) prior to coming to Singapore. She was 47 years old at the time of the Accident. She graduated from the University of Birmingham with a Bachelor’s degree in Social Administration and Social Work (with honours). Thereafter, she obtained a postgraduate Certificate of Qualification in Social Work in 1985, and further completed a Master of Business Administration course at the University of Brighton in 2006.

Prior to the Accident, the Appellant was an active participant in motorsports activities and took part in long-distance endurance car races. She was the only woman who had driven competitively in the 15,000km Peking to Paris car rallies held in 2007 and 2010, and was even featured in several motorsports magazines as well as on television. She was also a member of a number of motor car racing clubs, including the Motorsports Association of the UK, the British Women Racing Drivers Club and the Jim Russell Racing Drivers Club.

The Appellant started CPL in the UK in 2004. CPL provides consultancy services across the health and social sectors. It deals with, inter alia, operational and strategic management for healthcare and social care services, assignments involving budgetary pressures, capacity issues and trade union issues, as well as the facilitation of organisational and operational changes in institutions such as the Staffordshire County Council.2Appellant’s closing submissions for the assessment of damages hearing (“Appellant’s closing submissions”) at para 73.

The circumstances surrounding the Accident

In April 2011, the Appellant came to Singapore with her husband, Mr Andrew Mykytowych (also referred to hereafter as “Mr Mykytowych”), who was posted here by his employer, Balanced Engineering & Construction Pte Ltd (“Balanced Engineering”). It appears from the evidence that Mr Mykytowych was first posted to India and came to Singapore shortly after.

When the couple arrived in Singapore on 6 April 2011, they stayed at the Respondent as hotel guests. The Accident took place a month later on 7 May 2011 in the morning, sometime between 9.00am and 9.30am. The Appellant, in her affidavit dated 5 April 2012, averred that she was walking at a “sedate” pace in “flat rubber sole sandals” when she slipped on a puddle of water on the marble floor at the Respondent’s reception area and fell. She further averred that there was a significant amount of water on the floor which had not been cleaned up, and that this was brought about by the Respondent’s failure to provide mats for hotel guests to wipe their feet dry before moving from the swimming pool area to the reception area. The Appellant was conveyed to the Accident and Emergency Department (“A&E Department”) of Tan Tock Seng Hospital (“TTSH”) for treatment after the Accident.

The Appellant’s medical condition after the Accident Treatment immediately after the Accident

At TTSH’s A&E Department, the Appellant was diagnosed to be suffering from a non-displaced fracture of her left patella.3ROA vol 4 at p 10. Her left knee, on which she had landed when she fell, was observed to be swollen and tender.

Later on the same day (ie, 7 May 2011), the Appellant was referred to TTSH’s Orthopaedics Specialist Outpatient Clinic, where she was seen by the Head of the Department of Orthopaedic Surgery, Dr Ganesan Naidu (“Dr Ganesan”).4ROA vol 3 Part 1 at p 253. Dr Ganesan was the Appellant’s main physician for the next two-odd years until she left Singapore for Taiwan in September 2013. Dr Ganesan observed that the fracture of the Appellant’s left patella was minimally displaced, and decided that it would be best to treat her conservatively with intravenous analgesia and to immobilise her left leg with a plaster cast.

The Appellant was thereafter discharged from TTSH on 7 May 2011 itself, and was given medication for pain relief as well as a set of crutches. She continued to stay at the Respondent as a hotel guest until 24 May 2011, when she moved to an apartment rented by Balanced Engineering for her husband and her to live in.5ROA vol 3 Part 1 at p 8, para 21.

Follow-up treatments, appointments and diagnoses

After her discharge from TTSH, the Appellant returned for a number of follow-up appointments and physiotherapy sessions.

The Appellant saw Dr Ganesan on 12 May 2011,6ROA vol 3 Part 1 at p 195 at para 58. and again on 14 June 2011.7ROA vol 3 Part 1 at p 249. At the appointment on 14 June 2011, the Appellant reported that she continued to experience pain in her left knee and had difficulty flexing it; she also complained of swelling and pain in her left calf.8ROA vol 4 at p 20. Dr Ganesan suspected that the Appellant might have deep-vein thrombosis (“DVT”).9ROA vol 4 at p 20.As a precautionary measure, Dr Ganesan prescribed anti-thrombotics for the Appellant to take for her business trip to the UK.10ROA vol 4 at p 23. The Appellant and her husband flew business class for this trip.11ROA vol 3 Part 1 at p 196, para 63, She asserts that this was necessary as she needed to have more leg room to prevent an aggravation of her DVT. On 19 July 2011, when the Appellant next saw Dr Ganesan, he ruled out the possibility that she had DVT because the symptoms of the condition had abated by then.12ROA vol 4 at p 20.

In the meantime, on 24 June 2011, the Appellant attended her first physiotherapy session.13ROA vol 4 at p 57. She was attended to by Mr Zaki Hairodin (“Mr Hairodin”), a physiotherapist. Mr Hairodin stated in his report dated 1 October 2011 that the Appellant told him at their first session that: (a) she felt a constant dull pain in her left knee and her left Achilles tendon; and (b) she had difficulty bending her left knee and putting weight on her left leg. Mr Hairodin also reported that the Appellant was able to walk for short distances (20m) using a pair of crutches, but largely required a wheelchair for mobility, and that the Appellant had an “active range of movement of 40 degrees in her left knee”.14ROA vol 4 at p 57. He also observed “significant muscle wasting and weakness of her quadriceps muscles”.

On 19 July 2011, the Appellant had another follow-up appointment with Dr Ganesan. For this visit, apart from the issue relating to DVT (see [13] above), Dr Ganesan made the following key points in his specialist medical report dated 27 July 2011:15ROA vol 4 at p 20. (a) the Appellant’s pain in her left knee had abated significantly; (b) the X-rays revealed good callus formation and healing of the fracture; (c) the Appellant was able to ambulate with a knee brace and could flex her knee to a greater degree; (d) the Appellant reported having difficulty moving around and required a wheelchair to ambulate long distances; (e) there was significant wastage of the Appellant’s left quadriceps and gastrocnemius muscles; (f) the Appellant’s left knee had an active range of motion limited to five to 70 degrees; and (g) there was minimal effusion in the Appellant’s left knee joint. Dr Ganesan concluded that the Appellant did not need surgical intervention, but was “functionally disabled” at that point in time and needed a further review in six months’ time.

Thereafter, the Appellant continued to attend physiotherapy sessions. During a physiotherapy session on 28 September 2011, the Appellant told Mr Hairodin that she had “[no] significant improvement in her left knee pain but [was] able to cope better”.16ROA vol 4 at p 58. Mr Hairodin noted, however, that the pain in the Appellant’s left Achilles tendon had resolved, and that her left leg’s muscular strength had improved. He also noted that the Appellant was able to walk independently with a walking stick and no longer needed a knee brace.

Although the physical injuries that the Appellant sustained in the Accident were healing by October 2011 (nearly five months after the Accident), the Appellant complained that she continued to experience significant pain in her left knee and other parts of her body. With the aim of diagnosing...