Ng Lay Peng v Gain City Engineering & Consultancy Pte Ltd

• Jurisdiction: Singapore
• Judge: Andrew Ang SJ
• Judgment Date: 23 August 2018
• Date: 23 August 2018
• Docket Number: Suit No 214 of 2015
• Court: High Court (Singapore)

Ng Lay Peng

and

Gain City Engineering & Consultancy Pte Ltd (Ng Peng Boon, third party) (AXA Insurance Singapore Pte Ltd, intervener)

[2018] SGHC 184

Andrew Ang SJ

Suit No 214 of 2015

High Court

Damages — Measure of damages — Personal injuries cases — Plaintiff involved in car accident — Plaintiff suffering from pre-existing medical condition — Whether damages for physical injury should be reduced on account of pre-existing medical condition — Whether plaintiff was suffering from post-traumatic stress disorder — Whether damages for psychiatric injury should be reduced on account of medication — Whether damages for loss of future earnings should be awarded — Whether damages for loss of earning capacity should be reduced on account of pre-existing medical condition

Held, allowing the claim in part:

(1) The surgery before the accident did not prevent further deterioration of the Plaintiff's pre-existing medical condition: at [28].

(2) The Plaintiff was suffering from a degenerative disease. Both experts accepted that the Plaintiff's condition after the accident was partly caused by pre-existing natural degeneration and partly aggravated by the accident. Damages for pain and suffering should be reduced to take into account the Plaintiff's pre-existing medical condition: at [30], [33] to [34], [41], [53], [54] and [64].

(3) In assessing whether a claimant suffered from post-traumatic stress disorder (“PTSD”), one should not be obliged to accept that, if the claimant maintained that she perceived her life to be in danger, she was necessarily telling the truth. If that were the case, no claimant would ever fail in the claim. It was necessary to consider the nature of the event to determine how likely it was that such an event would traumatise the claimant. Since it was impossible to read the mind of the claimant the way one read a book or a scan, one inevitably had to fall back on common human experience; in other words, the objective test. That was not to say that there could never be a successful claim based purely on the claimant's subjective perception of a threat being of a life-threatening nature despite objective evidence that the threat did not qualify as such. But it would have to be exceptional, with the court believing the claimant's perception to be true: at [78].

(4) The accident was minor. Damage to the vehicle was minimal. The Plaintiff did not suffer any visible injury and could walk up to confront the driver of the van as well as take photographs. The Plaintiff was not suffering from PTSD: at [79] and [80].

(5) The Plaintiff's depression might in part have been caused by medication. But there should not be a discount on account thereof. Even if the depression was caused by medication, the blame could not be laid at the Plaintiff's door. One could not expect a patient to discard medication prescribed by her doctor. Besides, the need for the medication at least partly arose as a result of aggravation of her physical symptoms caused by the accident: at [94].

(6) For an award for loss of future earnings to be made, there had to be credible evidence in support; the court could not act on speculation or conjecture: at [143].

(7) It was impossible to undertake a computation of loss of future earnings without involving conjecture or speculation. There was difficulty in arriving at a multiplier. It was possible that in about two years' time, the Plaintiff might be capable of undertaking work akin to what she was doing before the accident. It was also difficult to arrive at a multiplicand because the Plaintiff's capacity for work was dependent on how well she recovered: at [146] to [149].

(8) When assessing loss of earning capacity, the court would have to take into account all sorts of factors, varying almost infintely with the facts of particular cases. Ultimately, the court arrived at a figure in the round which in its view would do justice to the plaintiff: at [150].

(9) The Plaintiff was entitled to damages for loss of earning capacity. However, in the assessment of damages for loss of earning capacity, the Plaintiff's pre-existing health condition needed to be taken into account. In other words, her loss of income earning capacity owing to her pre-existing condition did not qualify for compensation: at [162] and [163].

(10) The Plaintiff was entitled to special damages for hospitalisation and other medical expenses although the cost was borne by her medical insurer. As between the Plaintiff and the Defendants, the Defendants should not have the benefit of the insurance when the premium would have been paid or borne by the Plaintiff. Whether or not the insurance was voluntary or compulsory was of no relevance. As between the Plaintiff and her insurer, whether or not the Plaintiff should reimburse the insurer from the special damages so recovered was strictly between them and of no concern to the Defendants: at [164] and [165].

(11) With the exception of plain and obvious cases, in the context of medical expenses, there should be a substantive medical report by the relevant medical specialist. This would enable the defendant to determine whether the expenditure was reasonably incurred and whether it was reasonable in quantum. It went without saying that the defendant might well require to cross-examine the medical specialist: at [177].

Case(s) referred to

Chew Poh Kwan Margaret v Toh Hong Guan [2004] SGHC 280 (distd)

Karuppiah Nirmala v Singapore Bus Services Ltd [2002] 1 SLR(R) 934; [2002] 3 SLR 415 (refd)

MARA, The [2000] 3 SLR(R) 31; [2000] 4 SLR 156 (refd)

Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 (refd)

Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324 (folld)

Ong Tean Hoe v Hong Kong Industrial Co Pte Ltd [2001] SGHC 303 (distd)

Teddy, Thomas v Teacly (S) Pte Ltd [2014] SGHC 226 (folld)

Teo Sing Keng v Sim Ban Kiat [1994] 1 SLR(R) 340; [1994] 1 SLR 634 (folld)

Wong Kim Lan v Christie Kolandasamy [2004] SGDC 234 (distd)

Facts

The plaintiff (“the Plaintiff”) was travelling in her husband's car when it collided with a van owned and operated by the defendant (“the Defendant”). The accident occurred at an uncontrolled road junction in an industrial park. The nature and extent of damage caused to the Defendant's van and the car suggested a light contact between the two vehicles. The accident was minor. Immediately after the accident the Plaintiff was walking around taking photographs at the accident site.

The Plaintiff had a history of back and neck problems, and had undergone surgery in her lower back four days before the accident. In the months following the accident, the Plaintiff complained of chronic pains and developed cauda equina syndrome (symptoms include the loss of bowel control). She was also diagnosed with major depressive disorder, and other psychiatric conditions.

The Plaintiff claimed for damages for physical injuries, psychiatric injuries, loss of income, pre-trial expenses, future and other expenses.

Yap Tai San Paul and Janice Han (Vision Law LLC) for the plaintiff;

Chua Tong Nung Edwin and Cham Xin Di, Cindy (Lawrence Chua Practice LLC) for the defendant;

Third Party in person;

Yeo Kim Hai Patrick and Tan Mun Yung, Kenneth (KhattarWong LLP) for the intervener.

23 August 2018

Judgment reserved.

Andrew Ang SJ:

Introduction

1 The plaintiff's (“the Plaintiff”) claim is for damages for personal injuries and consequential losses arising from a traffic accident on 25 July 2012.

2 The Plaintiff was a front seat passenger in the third party's (her husband's) car. The accident occurred at an uncontrolled road junction in an industrial park. The nature and extent of damage caused to the defendant's van (GV 9457H) and third party's car (SJY 2597G) suggest a light contact between the two vehicles. What happened on 25 July 2012 was a minor accident.

3 Consent interlocutory judgment was entered at 100% liability against the defendant with a 25% indemnity from the third party. I note that the consent interlocutory judgment was agreed to be without prejudice to DC Suit No 107 of 2014 which is the claim of the third party against the defendant.

4 The intervener is the motor insurer of the third party. It applied to join in these proceedings as an additional party when the third party agreed to give evidence as Plaintiff's witness. This was to enable its counsel to cross-examine the third party. This notwithstanding, the intervener confirmed that it was not repudiating its coverage of the third party. The defendant and the third party jointly tendered a set of closing submissions (“the Defendants' Closing Submissions”) and for ease of reference I shall refer to them collectively as “the Defendants”.

5 I shall deal with the claims in the following order:

General damages for personal injuries

Under this head I will deal with:

(a) the physical injuries comprising:

(i) lumbar injury;

(ii) cauda equina syndrome;

(iii) high blood pressure;

(iv) cervical injury; and

(b) the psychiatric injuries comprising:

(i) post-traumatic stress disorder; and

(ii) major depressive disorder with anxiety and obsessive compulsive features.

Income loss – pre-trial loss and future loss

Income loss comprising:

(a) pre-trial loss of earnings; and

(b) loss of future earnings and/or loss of earning capacity.

Special damages

Special damages – pre-trial expenses comprising:

(a) medical and transport expenses;

(b) expenses for domestic maid;

(c) renovation and other expenses.

Future medical and other expenses comprising:

(a) future expenses for engaging domestic worker; and

(b) future medical expenses.

General damages

Physical injury

(a)(i) Lumbar...