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

• Jurisdiction: Singapore
• Judge: Andrew Ang SJ
• Judgment Date: 23 August 2018
• Neutral Citation: [2018] SGHC 184
• Court: High Court (Singapore)
• Docket Number: Suit No 214 of 2015
• Year: 2018
• Published date: 02 November 2019
• Hearing Date: 01 February 2017,02 February 2017,01 June 2017,03 November 2017,02 June 2017,31 January 2017,31 May 2017,08 February 2017,30 May 2017,29 May 2017
• Plaintiff Counsel: Yap Tai San Paul and Janice Han (Vision Law LLC)
• Defendant Counsel: Chua Tong Nung Edwin and Cham Xin Di, Cindy (Lawrence Chua Practice LLC),The third party in person,Yeo Kim Hai Patrick and Tan Mun Yung, Kenneth (KhattarWong LLP)
• Subject Matter: Damages,Measure of damages,Personal injuries cases
• Citation: [2018] SGHC 184

Andrew Ang SJ: Introduction

The Plaintiff’s claim is for damages for personal injuries and consequential losses arising from a traffic accident on 25 July 2012.

The Plaintiff was a front seat passenger in the Third Party’s (her husband’s) car.¹ 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.²

Consent Interlocutory Judgment was entered at 100% liability against the Defendant with a 25% indemnity from the Third Party.³ 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.

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.⁴ 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”.

I shall deal with the claims in the following order: General Damages for Personal Injuries Under this head I will deal with: the physical injuries comprising: lumbar injury; Cauda Equina Syndrome; high blood pressure; cervical injury; and the psychiatric injuries comprising: Post-Traumatic Stress Disorder; and Major Depressive Disorder with anxiety and obsessive compulsive features. Income Loss – Pre-trial loss and Future loss Income Loss comprising: pre-trial loss of earnings; and loss of future earnings and/or loss of earning capacity. Special Damages Special Damages – Pre-trial expenses comprising: medical and transport expenses; expenses for domestic maid; renovation and other expenses. Future medical and other expenses comprising: future expenses for engaging domestic worker; and future medical expenses.

General Damages Physical injury Lumbar Injury

The Plaintiff did have pain in the lower back before the accident although the parties are not agreed as to the extent to which the Plaintiff’s lumbar degeneration was aggravated by the accident (if at all).⁵

The Plaintiff had complained of low back ache to her family physician Dr Chang Chee Chea (“Dr Chang”) on December 2007 and 2008. She was advised to undergo a general screening in April 2008 and a urine culture in May 2008. The latter revealed a urinary tract infection. In oral evidence Dr Chang attributed the low back pain to the urinary tract infection.⁶ The Plaintiff avers that after the urinary tract infection was resolved, she no longer complained of back pain until 8 June 2012 when she saw Dr Eu Kong Weng (“Dr Eu”) for a review after surgery for gall stones and haemorrhoids. Dr Eu referred her to an orthopaedic surgeon Dr Hee Hwan Tak (“Dr Hee”)⁷ whom she saw on 7 June 2012.⁸

An MRI of the lumbar spine revealed degenerated L4/L5 disc with posterior annular tear and degenerated L5/S1 disc with focal left prolapse indenting left S1 nerve root and mild narrowing of left exit foramina.⁹ The Plaintiff’s back pain did not abate after traction, physiotherapy and acupuncture.¹⁰ The Plaintiff finally opted for L4/L5 and L5/S1 percutaneous nucleoplasty and bilateral L5/S1 nerve root blocks on 21 July 2012.¹¹ According to the Plaintiff, she no longer felt pain in her lower back after the said procedures.¹² Unfortunately she met with the accident four days later on 25 July 2012.

According to the Plaintiff, since the accident, she has been hospitalised no fewer than 14 times and has undergone fusion surgery to her lower spine.¹³ She uses a crutch to aid her in walking because of pain and weakness in her left leg radiating from her lower spine.¹⁴

Dr Hee and Dr Chang Wei Chun (the Defendants’ orthopaedic expert witness) (“Dr WC Chang”) agreed that the Plaintiff’s back condition was aggravated by the accident but they differed as to the extent of such aggravation with Dr Hee suggesting 50% and Dr WC Chang 15% to 20%. Both experts acknowledged that their estimates were merely rough guides.¹⁵

Dr WC Chang opined that natural degeneration was a greater contributory factor than the aggravation caused by the accident. He gave the following reasons:¹⁶ There was only slight contact between the vehicles in the accident. The Plaintiff sat cocooned in the front seat secured by a seat belt. Her spine was protected as she sat cocooned in the front seat. Any strain to the Plaintiff’s back would have been minimal. In his report, Mr Kelvin Koay, the Defendants’ accident reconstruction expert, opined that the force generated at the accident was below the threshold for injury. The Defendants pointed out that there was no mention of Plaintiff sustaining even a bruise on any part of her body. A comparison of the MRI of her spine before and after the accident showed no change. I note that, by her own account, immediately after the accident the Plaintiff was walking around taking photographs at the accident site. It was only an hour later that day that she sought treatment at Mount Alvernia Hospital complaining of pain.¹⁷ As the Defendants pointed out, such delayed onset of pain was inconsistent with her allegation that she suffered severe traumatic impact to the lower spine as a result of a serious collision.

The Defendants also challenged the Plaintiff’s assertion that after nucleoplasty she no longer felt pain leading to the suggestion that her subsequent condition was caused mainly by the accident.¹⁸ The Defendants submitted that it was too soon to tell whether nucleoplasty had given her long-term relief from back pain.¹⁹ Dr Hee’s own evidence was that he would have continued with up to two years of post-operative follow-up monitoring and review.²⁰

In short, Defendants’ submission was that even if there were no accident the Plaintiff would, progressively with age, experience more symptoms of back pain; accordingly, the quantum of damages for aggravation of the back condition could not be the same as that which a healthy person (with no pre-existing back condition) would receive.²¹

A case in point is Teddy, Thomas v Teacly (S) Pte Ltd [2014] SGHC 226 (“Teddy Thomas”). The facts of that case are as follows.

On 15 November 2010, the plaintiff, Mr Thomas Teddy, was travelling as a passenger in a taxi when a lorry belonging to the defendant collided into the rear of the taxi. The plaintiff claimed that he did not feel any pain immediately after the accident although he was jerked forward and then flung backwards. Later that evening, he experienced loss of sensation in both his hands and arms.

The plaintiff had suffered a stroke about 11 months earlier on 10 October 2009. He managed to recover from the stroke by December 2009. However, as of March 2010, he began experiencing pain in the neck, weakness in both hands and progressive gait instability. He consulted a neurologist, Dr Tang Kok Foo on 11 May 2010. Dr Tang ordered an MRI of the plaintiff’s spine. It revealed that the plaintiff had disc degeneration at three levels (C3/C4, C4/C5 and C5/C6) with very severe cord compression at the lower two levels. Essentially, he diagnosed the plaintiff as suffering from cervical myelopathy and diabetic neuropathy and recommended surgery to stop the cervical myelopathy from getting worse.

The plaintiff consulted a neurosurgeon, Dr PK Pillay for a second opinion on 7 July 2010. Dr Pillay also ordered an MRI and on the basis of the MRI findings, he diagnosed the plaintiff with cervical myelo-radiculopathy and also recommended surgery. On 14 July 2010, Dr Pillay performed an “anterior cervical microdisectomy and fusion for C4/5 and C5/6 significant disc protrusions that were causing the myelo-radiculopathy” (“the first surgery”). According to the plaintiff he felt a dramatic improvement in his condition after the first surgery. He claimed to have completely recovered from the first surgery by October 2010, ie, one month before the accident.

The day after the accident, the plaintiff went to see Dr Pillay because he was concerned that the accident might have had an impact on his spine. An MRI of his cervical spine was done on the same day. In the MRI report, the radiologist stated the following: There are fractures of the C4 to C6 vertebral bodies with post-operative changes present. Posterior central/paracentral disc protrusions at C3/4 to C7/T1 are seen.

The plaintiff claimed that he could not feel his hands and that “everything was numb”. Dr Pillay carried out urgent surgery on 26 November 2010. According to the plaintiff, there was little improvement after the surgery. Dr Pillay’s report dated 18 March 2011, a few months after the second surgery, estimated that the plaintiff had “a 70% permanent disability”.

At the assessment of damages before an Assistant Registrar (“the AR”), one of the “most hotly contested issues” was whether the plaintiff’s injuries and disabilities were caused by the accident or by pre-existing conditions. The AR found that the injuries sustained by the plaintiff were caused by the accident and awarded, inter alia, $60,000 for pain and suffering.

The defendant’s appeal was heard by Prakash J (as she then was). The learned judge accepted the defendant’s submissions that the defendant “should not have to compensate the plaintiff for any pain or disabilities he would have suffered regardless of the accident” (at [25]).

To decide whether that was indeed the case, she asked three questions pertinent to the facts of the case: What was the effectiveness of the first...