Ng Bee Lian v Fernandez and Another

• Jurisdiction: Singapore
• Judgment Date: 27 April 1994
• Date: 27 April 1994
• Docket Number: Suit No 566 of 1991
• Court: High Court (Singapore)

Ng Bee Lian

Plaintiff

and

Fernandez and another

Defendant

[1994] SGHC 114

Lim Teong Qwee JC

Suit No 566 of 1991

High Court

Civil Procedure–Costs–Principles–Appeal against assistant registrar's decision not to disallow costs on matters claimed but not proceeded with by plaintiff–Plaintiff succeeding substantially in his case–Whether failure by defendants to object before assistant registrar relevant–Whether court should interfere with assistant registrar's exercise of discretion–Order 59 r 3 (2) Rules of the Supreme Court (Cap 322, R5, 1990 Ed)–Civil Procedure–Pleadings–Statement of claim–Whether failure to plead special damages for continuing loss of earnings detrimental–Defendant not prejudiced by such failure to plead–Failure by defendant to object when damages being assessed–Damages–Measure of damages–Personal injuries cases–Special damages of continuing loss of earnings–Statement of claim pleading continuing injury but claiming loss of earnings for specific number of months only–Whether claim for such further loss allowed–Evidence–Documentary evidence–Agreed bundle containing medical reports–Whether necessary to prove signatures of makers of medical reports–Sections 63, 64 and 69 Evidence Act (Cap 97, 1990 Rev Ed)

The plaintiff was involved in a car collision and judgment was entered against the second defendant for damages to be assessed and costs were reserved. The assistant registrar assessed general damages of $19,800 and special damages of $29,250 being the plaintiff's pre-trial loss of earnings and ordered the second defendant to pay costs to be taxed. The second defendant appealed against part of the assistant registrar's decision. With regard to general damages, the second defendant argued that although the medial reports were included in an agreed bundle, the truth of the contents still had to be proved in the absence of any specific admission. The second defendant also argued that an allowance ought to be made for “overlapping” between the award for loss of earnings falling under general and special damages. As for special damages, the second defendant argued that the plaintiff should only have been awarded pre-trial loss of earnings of five months. He also argued that the special damages awarded should not have exceeded 21 months as the plaintiff did not plead in her statement of claim that the loss was continuing. The second defendant also appealed on the issue of costs on the grounds that the plaintiff did not proceed with all the claims pleaded.

Held, dismissing the appeal with costs:

(1) The contents of the medical reports must have been proved and such a finding by the assistant registrar was entirely justified. There was no doubt that by agreeing to the bundle, the parties agreed that where documents were signed, the signatures may be treated as having been proved in accordance with s 69 of the Evidence Act (Cap 97, 1990 Rev Ed) and that all the documents (usually copies) may be treated as the originals themselves produced for the inspection of the court within the meaning of s 64 of the Evidence Act: at [11] and [12].

(2) It was plain that the assistant registrar had made a substantial allowance in arriving at the sum to be awarded for loss of earning capacity under general damages: at [17].

(3) There was relevant evidence to justify the assistant registrar's findings on special damages. It could not be said that the assistant registrar was plainly wrong and accordingly, the court had to defer to his judgment. On the evidence before the assistant registrar, it could not be seen how he could have come to any other conclusion: at [21].

(4) In general, only special damage which had been pleaded and proved could be recovered in an action in the sense that the plaintiff must warn the defendant in the pleadings of the compensation claimed so that the defendant may know the case he had to meet and assess the amount to pay into court or to agree with the plaintiff. In the present case, there were these special circumstances. The second defendant was not taken by surprise nor was there any evidence that he was in any difficulty over the failure to plead any particulars of the claim as he knew the amount claimed. The assistant registrar's award under this head should not be disturbed: at [30] and [31].

(5) Taking into consideration the fact that no point was taken when the plaintiff's counsel said he was not proceeding with the claim in respect of some items or at the close of the second defendant's counsel's submissions or at any time at all and the fact that the plaintiff had succeeded substantially, the court was not persuaded that any order for costs should be made in place of the assistant registrar's order: at [34].

Ang Kar Wee v Singapore Bus Service (1978) LtdDistrict Court Suit No 133 of 1988 (refd)

Chan Wai Tong v Li Ping Sum [1985] AC 446 (distd)

Chong Khee Sang v Pang Ah Chee [1984] 1 MLJ 377 (distd)

Cinema Press, Limited v Pictures & Pleasures, Limited [1945] 1 KB 356; [1945] 1 All ER 460 (distd)

Domsalla v Barr [1969] 3 All ER 487 (folld)

Ilkiw v Samuels [1963] 1 WLR 991; [1963] 2 All ER 879 (refd)

Khoo See Moi v Tay Teik Chang [1970] 2 MLJ 249 (refd)

Leong San Tong Khoo Kongsi (Penang) Registered, Trustees of v Poh Swee Siang [1987] 2 MLJ 611 (distd)

MCST Plan No 586 v Menezes Ignatius Augustine [1992] 1 SLR (R) 201; [1992] 1 SLR 807 (distd)

Perestrello e Companhia, Limitada v United Paint Co Ltd [1969] 1 WLR 570; [1969] 3 All ER 479 (refd)

Siratin George v Laily bin Mohamed IsaDistrict Court Appeal No 78 of 1987 (refd)

Tan Cheng Chye v Beng Teck Giap HensenDistrict Court Suit No 12886 of 1986 (refd)

Tan Meng Hua v Singapore Bus Service (1978) LtdMagistrate's Court Suit No 12186 of 1987 (refd)

Tan Song Gou v Goh Ya Tian [1981-1982] SLR (R) 584; [1982-1983] SLR 107 (refd)

Tan Tee Huat v Loy Sian Wah AnthonyDistrict Court Suit No 4649 of 1987 (refd)

Wong Ching Wah v Kang KeithDistrict Court Suit No 4471 of 1989 (refd)

Evidence Act (Cap 97,1990 Rev Ed)ss 63, 64, 69 (consd)

Rules of the Supreme Court (Cap 322, R 5, 1990 Ed)O 59r 3 (2) (consd);O 18r 12 (1A) (b)

Chee Chuen Yee (Ramdas & Wong) for the plaintiff

Abdul Salim Ahmed Ibrahim (Low Yeap & Co) for the second defendant.

Lim Teong Qwee JC

1 On 20 December 1988 there was a collision at the junction of Ang Mo Kio Avenues 5 and 6 between two cars. The plaintiff was a passenger in one of the cars. She suffered a closed fracture of the right femur and minor head injury with cerebral concussion. The first defendant was the owner of the other car and the second defendant was the driver. The plaintiff sued both defendants alleging negligence on the part of the second defendant. In their joint defence the defendants admitted the collision and negligence on the second defendant's part but denied that he was driving as the servant or agent of the first defendant and made no admission as to the injuries and loss suffered. The action against the first defendant was discontinued and judgment was on 20 January 1992 entered for the plaintiff against the second defendant for damages to be assessed and costs were reserved.

2 On 23 May 1992 assistant registrar David Lim assessed damages at $19,800 for the injuries and a sum which included $29,250 for special damages and ordered the second defendant to pay costs to be taxed. The second defendant appealed against that part of the assistant registrar's decision ordering the second defendant to pay:

(a) general damages in the sum of $19,800 consisting of:

(i) cerebral concussion	$1,500
(ii) closed fracture of right femur	$11,000
(iii) 22cm scar on right thigh	$2,300
(iv) loss of earning capacity	$5,000
	$19,800

(b) special damages in the sum of $29,250 being the plaintiff's pre-trial loss of earnings consisting of:

(i) eight months on crutches at $1,500 per month	$12,000
(ii) 23 months at $750 per month	$17,250
	$29,250

(c) costs to be taxed.

3 The appeal was heard by P Coomaraswamy J who reserved judgment before he retired and it was agreed between counsel that I should read the proceedings including the notes of evidence and of counsel's submissions, the documents admitted and...