Ng Chee Wee v Tan Chin Seng

JudgeVinodh Coomaraswamy JC
Judgment Date28 February 2013
Neutral Citation[2013] SGHC 54
Citation[2013] SGHC 54
CourtHigh Court (Singapore)
Published date11 March 2013
Docket NumberSuit No 302 of 2004 (Registrar’s Appeal No 320, 323 and 333 of 2012)
Plaintiff CounselN Srinivasan (Hoh Law Corporation)
Defendant CounselLow Tiang Hock (Low & Co)
Subject MatterDamages,Assessment
Hearing Date30 August 2012,31 August 2012
Vinodh Coomaraswamy JC:

On 31 July 2012, the Assistant Registrar (“the AR”) assessed damages in this action. He assessed the defendant’s loss and damage at $956,599.03. That comprised special damages of $301,048.91 and general damages of $655,550.12. The defendant had been adjudged liable for 75% of the plaintiff’s loss and damage. So the AR ordered the defendant to pay the plaintiff $717,449.27 – being 75% of the loss and damage assessed – plus interest and costs.

On 3 August 2012, the Defendant appealed against the whole of the AR’s order by way of RA 320 of 2012. On 7 August 2012, the plaintiff cross-appealed against parts of the AR’s order by way of RA 323 of 2012. On 10 August 2012, the plaintiff filed a second appeal by way of RA 333 of 2012 covering the same ground as RA 323 but going further by including a specific challenge on the AR’s award of interest.

All three appeals came up for hearing before me on 30 August 2012. At the outset, counsel for the plaintiff sought leave to withdraw RA 323 of 2012 with no order as to costs because it had been superseded by RA 333 of 2012. I granted leave by consent. I therefore need say no more about RA 323 of 2012.

I considered both parties’ oral and written submissions, the authorities cited and the evidential record. On 31 August 2012, I dismissed the defendant’s appeal in RA 320 of 2012 and allowed in part the plaintiff’s appeal in RA 333 of 2012. I allowed the plaintiff’s appeal in part on a point more of arithmetic than of principle. Both parties appealed against my decision. I now set out my reasons.

Background to the Appeals

On 29 June 2003, a lorry driven by the defendant collided into a motorcycle ridden by the plaintiff. As a result of that collision, the plaintiff sustained several injuries, including a degloving injury to his right foot, right frontotemporal subdural haemorrhage and a closed facture to his neck.

On 16 April 2004, the plaintiff commenced these proceedings to secure compensation for his injuries from the defendant. On 4 October 2004, the plaintiff obtained interlocutory judgment against the defendant by which the defendant was adjudicated liable for 75% of the plaintiff’s damage, with the damages to be assessed.

The Assistant Registrar’s decision

The AR assessed the special damages amounting to $301,048.91 as follows:

(a) Pre-trial medical expenses $118,554.39
(b) Pre-trial transport expenses $7,721.36
(c) Pre-trial loss of earnings $174,773.16
(d) Loss of motorcycle $0
Total special damages: $301,048.91

The AR assessed the general damages amounting to $655,550.12 as follows:

(a) Pain and suffering and loss of amenity $204,000.00
(b) Future medical expenses $318,900.00
(c) Future transport expenses $5,000.00
(d) Loss of future earnings $127,650.12
(e) Total general damages: $655,550.12

The AR also awarded the Plaintiff interest at: 3% per annum on the sum payable by the defendant as special damages (or $225,786.68 being 75% of $301,048.91) from the date of the accident (29 June 2003) to 31 December 2007; and 6% per annum on the sum payable by the defendant for the plaintiff’s pain and suffering (or $153,000 being 75% of $204,000) from the date of service of the writ (16 April 2004) to 31 December 2007.

The AR also ordered costs to the plaintiff fixed at $45,000 including GST but excluding disbursements, which were to be agreed or taxed.

This Court’s Decision

After considering the parties’ submissions and the evidential record, I was not inclined to vary the AR’s decision either way save for a minor arithmetical point relating to the multiplicand used in the AR’s award for pre-trial and future loss of earnings. I shall deal with this point in more detail when I discuss these heads of damage below.

I shall now discuss the various heads of damages which were awarded in sequence, starting with special damages and then moving on to general damages.

Special damages Pre-trial medical expenses

The AR awarded the plaintiff the sum of $118,554.39 for pre-trial medical expenses. This was based on the evidence presented of his medical bills. The defendant did not dispute the accuracy of these sums. Instead, the defendant raised a point of principle: the defendant contended that this large sum was incurred as a result of the plaintiff’s decision to seek medical treatment at a private hospital, namely, Raffles Hospital (“Raffles”), rather than at a restructured hospital. In support of his submission that medical care at a private hospital was not recoverable in principle, counsel for the defendant referred me to Harvey McGregor, McGregor on Damages (15th ed, 1988) (“McGregor”) at paragraph 1497:

The plaintiff is entitled to damages for the medical expenses reasonably incurred by him as a result of the injury… The only condition is that they should be reasonable, a condition implied in the provision of section 2(4) of the Law Reform (Personal Injuries) Act 1948 [(UK)] stating, in its current form, that in personal injury claims “there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 1977”.

Counsel for the defendant further relied on the decision of the House of Lords in Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 (“Lim Poh Choo”) which was cited by the learned authors of McGregor. In Lim Poh Choo, the defendant argued that in considering the damages to be awarded, the court must take into account the availability of care for the victim at public expense under the English National Health Service (“NHS”). However, the House of Lords noted that section 2(4) of the Law Reform (Personal Injuries) Act 1948 (UK) meant that when an injured plaintiff in fact incurs expenses which are reasonable, that expenditure is not to be impeached on the ground that, if he had taken advantage of the facilities available under the National Health Service Act 1946 (UK), those reasonable expenses might have been avoided (Lim Poh Choo at 187-188). Although the House of Lords recognised the force of the case for repealing section 2(4) of the Law Reform (Personal Injuries) Act 1948 (UK), they recognised too that this was not within the courts’ purview. I do not consider Lim Poh Choo of assistance in the Singapore context. First, it was decided in a jurisdiction in which the defendant had available a free healthcare system. That is not the position in Singapore. Further, I do not consider that the existence of section 2(4) of the English 1948 Act suggests that the position at common law is the contrary.

Unfortunately, counsel for the defendant was unable to point me to any local authority to support his submission. On the contrary, this argument was rejected by the High Court in De Cruz Andrea Heidi v Guangzhou Yuzhitang Health Products Co Ltd and others [2003] 4 SLR(R) 682 at [203] (“De Cruz”). In De Cruz, the plaintiff suffered liver damage as a result of consuming slimming pills produced, imported or distributed by the various defendants. The defendants suggested that she ought to have mitigated her loss by having her liver transplant done at a restructured hospital, National University Hospital (“NUH”), rather than at a private hospital, Gleneagles, as NUH could have given her a subsidy upon application. Tay J roundly rejected this suggestion, saying that (at [203]):

This suggests that a person gasping for air should go around shopping for the cheapest oxygen tank and that cannot be right. What the plaintiff (or the people making the decision for her then) decided in the very trying days before the transplant was completely reasonable.

This holding was not disturbed on appeal to the Court of Appeal (see TV Media Pte Ltd v De Cruz Andrea Heidi and another appeal [2004] 3 SLR(R) 543 (“TV Media”)). Although the context of Tay J’s remarks was a patient seeking life-saving medical care in an emergency or near-emergency situation, I hold that this principle is of general application. It applies to the plaintiff. It is a questionable of reasonableness in all cases.

Mr Low was also unable to point to any evidence showing that it was unreasonable for the plaintiff to have sought treatment from Raffles after sustaining the injuries he did as a result of the accident. Quite the contrary: I found the plaintiff’s reason for seeking treatment from Raffles rather than NUH entirely reasonable. After the accident, the plaintiff was first treated in NUH where he underwent a left latissimus dorsi free vascularised flap procedure to save the degloved part of his foot. However, the operation did not go well and the plaintiff sustained an infection of the flap which forced him to be hospitalised for an extended period. Because of the infection of the flap, the plaintiff had to undergo further wound debridement surgery to remove the affected parts, and further to undergo skin graft surgery to cover the exposed tissue.

Although this is no criticism of NUH, the plaintiff’s experience with NUH involved several unsuccessful treatments leaving him in great pain and discomfort and cost the plaintiff a lot of time and money. By contrast, when the plaintiff was referred to Raffles, his treatment went well and looked promising. Further, the doctors at Raffles were of the view that the plaintiff’s foot could be salvaged, in contrast with the doctors at the NUH who recommended an amputation.

In the circumstances, I found it entirely reasonable for the plaintiff to have sought treatment from Raffles instead of NUH after the initial phase of treatment. Therefore, I affirmed the AR’s award of $118,554.39 for pre-trial medical expenses.

Pre-trial transport expenses

The AR awarded...

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