Nirumalan V Kanapathi Pillay v Teo Eng Chuan

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 21 April 2003
• Neutral Citation: [2003] SGHC 96
• Docket Number: Suit No 1129 of 1994 (Registrar's
• Date: 21 April 2003
• Year: 2003
• Published date: 07 October 2003
• Plaintiff Counsel: Ms Chua Hwee Ping (Niru & Company),Liew Teck Huat (Niru & Company)
• Citation: [2003] SGHC 96
• Defendant Counsel: B Rao (B Rao & KS Rajah),Fazal Mohamed (B Rao & K S Rajah)
• Court: High Court (Singapore)
• Subject Matter: Consequences on pre-trial interest on damages,Delay,Civil Procedure,Loss of earning capacity,Application of precedents,Personal injuries cases,Whiplash injury,Damages,Quantum,Delay in prosecution of case,Civil Law Act (Cap 43, 1999 Rev Ed) s 12(1),Pain and suffering

1 The plaintiff Mr Nirumalan V Kanapathi Pillay is an advocate and solicitor and managing partner of the law firm Niru & Company he established.

2 On 19 July 1991, the plaintiff was injured when the taxi he was in was involved in a motor accident. He was thrown forward and injured his cervical spine. His condition, which did not appear serious initially, worsened with time. From 1995, he was examined by neurosurgeons and other medical specialists.

3 He instituted legal proceedings in 1994. In May 1995, he obtained an interlocutory judgment, with damages to be assessed. The assessment was conducted by an assistant registrar. It started on 1 October 2001 and concluded on 30 August 2002.

4 He was unhappy with the outcome and appealed. He felt that some of the awards made were too low and that some other awards should have been made which were not. I will deal with each of his complaints.

Pain and suffering

5 The plaintiff suffered a whiplash injury to the spine with posterior disc prolapse at the C5/C6 and C6/C7 levels. This was particularly unfortunate because the plaintiff has a congenitally narrow spinal canal. Dr Balaji Sadasivan, a consultant neurosurgeon who attended to him between 1995 and 1999 described the injury as moderate.[1]

6 The assistant registrar noted that “it is undisputed that the plaintiff has a disc prolapse due to the trauma and that this aggravate his canal stenosis. He also has nerve root denervation at C7 leading to radiculopathy. He has weakness in both hands, a stiff neck and frequent headaches.”[2]

7 There was a divergence in the medical opinion whether myelopathy, which is the functional disturbance or pathological change in the spinal cord, has set in. Dr Balaji, Dr V K Pillay, Mr Alan Crockard and Mr D A Campbell, neurosurgeons engaged by the plaintiff found signs of early myelopathy in 1997. On the other hand another neurosurgeon the plaintiff consulted, Professor Andrew Kaye examined him in 1999 and found that the plaintiff may need to have an operation as “it would diminish the risk of the development of a myelopathy in the future, and it would also reduce the risk of a sudden paralysis associated with a minor jolt to the neck.”[3]

8 Dr Robert Don, a surgical specialist in rehabilitation medicine went through the plaintiff’s medical reports at the request of the defendant in 1998. Dr Don was of the opinion that there was no myelopathy because the condition is progressive, and if it had set in there would be more severe neurological impairment and functional disability than was found.[4] Dr Ho Kee Hang, a neurosurgeon engaged by the defendant to examine the plaintiff in April 1999 found no clinical or radiological evidence of myelopathy.[5]

9 In the light of the divergent findings and opinions, the assistant registrar ruled that

Bearing in mind the irreconcilable medical evidence, I am unable to conclude that the plaintiff is suffering from myelopathy and accordingly I hold that the plaintiff has not discharged the burden of proof in this respect. However, what is plain from the evidence is that the plaintiff’s condition will continue to degenerate if there is no surgical intervention. His congenitally narrow spinal canal also made him susceptible to complete paralysis if he should suffer another jolt. The medical experts, including Dr Ho, agreed that the plaintiff should undergo surgery to prevent further degeneration of the spinal condition. That being the case, I find that it would be reasonable for the plaintiff to undergo the recommended surgery to remedy the radiculopathy as well as to prevent the onset of myelopathy.[6]

10 The assistant registrar was right that the evidence was not consistent and that the plaintiff had not established myelopathy.

11 Counsel for the plaintiff submitted that the assistant registrar had not given proper consideration to the fact that the plaintiff has bowel dysfunction which could have been caused by myelopathy. The evidence counsel was referring to came from gastroenterologist Dr Melvyn Korman, whose opinion was that it is possible that the spinal injury could make a contribution to irritable bowel syndrome, but the doctor also stated that the syndrome could be caused by the stress and anxiety that the plaintiff had experienced[7] and his further opinion that the plaintiff “suffers irritable bowel syndrome made considerably worse by the ongoing stress since his car accident and neck spinal code injury.”[8] In fact the plaintiff had experienced bowel dysfunction and had consulted Dr Korman even before the accident.

12 I do not think that counsel’s criticism of the assistant registrar is justified. The evidence falls short of showing that the plaintiff’s bowel condition was the result of myelopathy. The condition existed before the accident, and could have been aggravated by stress rather than myelopathy.

13 In arriving at the award, the assistant registrar referred to several precedents. The first is Lim Ai Geok v Ang Gim Choon [1999] Mallal’s Digest para 1231 where $22,000 was awarded for the damage to intervertebral discs leading to severe disc degeneration in four lower discs (L2-3, L3-4, L4-5, L5-S1) with L3-4 and L4-5 discs slightly bulging, and narrowing spinal canal and disc herniation. There was the possibility of the degenerated discs prolapsing and causing severe pain and affecting nerves in the spinal canal.

14 The second is Ong Swee Huat v Cheng Yun Hian [1992] MMD 601 where the injured suffered a whiplash injury. He was left with tenderness of the lower cervical spine, reduction of movement of the cervical spine, osteophytic lipping of C5/6 and C6/7 and reduction of the C6 and C7 disc space. The award for the injury was $12,000.

15 In the appeal counsel for the plaintiff argued that the award of $20,000 is too low. He submitted that a proper award should be between $40,000 and $50,000 because the court should not be shackled by precedents and is justified in awarding substantial damages for pain and suffering.[9]

16 He also referred to Lim Ai Geok. In addition to that, he referred to Zakaria bin Putra Ali v Low Keng Huat Construction Company (S) Pte Ltd [1994] Mallal’s Digest 1212 (and on appeal in CA No 181 of 1993). In this case the plaintiff who suffered four fractures of the vertebra with unspecified neurological consequences, weakness in the right leg, restricted movement in the hip, incontinence and a degree of impotence was awarded $80,000.

17 Lastly he referred to Ang Buk Chuk v Arunchalam Senkuttuvan reported in Assessment of Damages: Personal Injuries and Fatal Accidents pages 264-5 where $12,000 was awarded for a sprain of the cervical spine leading to the loss of cervical lordosis, degeneration in the C5-6 cervical vertebrae and 3 cervical discs C4 to C5, and causing difficulty in looking down and in lifting heavy objects.

18 In deciding on the proper quantum of damages reference should be made to the precedents available. However applying the precedents to a specific case is not a straightforward exercise. Often there are only brief descriptions of the injuries and residual disabilities. Allowance has to be made for the age of the award and the injured person.

19 After going through the submissions I do not accept the $40,000-$50,000 range suggested by counsel, particularly when it was premised on the existence of myelopathy. On the other hand, $20,000 is low for the injuries described in para 6 and the possibility of paralysis if the plaintiff has a jolt. I increase this award to $30,000.

Cost of future surgery

20 The assistant registrar made an award for $20,000 for one operation. Counsel for the plaintiff submitted that she should have awarded cost for two operations.

21 The evidence on this was mixed. While the neurosurgeons agreed that surgery will be necessary, only Mr Campbell mentioned two operations. He stated in his report that there should be an operation from the anterior approach and “if, however, even after such surgery [the plaintiff] feels he is deteriorating then serious consideration would be given to a posterior decompression”[10], without stating the degree of the likelihood of a second operation.

22 Before the assistant registrar, Mr Campbell departed from his earlier opinion and said that although normal patients would need only one operation, the plaintiff would need two,[11] but he did not reconcile the two positions.

23 Dr Balaji, when referring to the surgery that he, Mr Crockard and Professor Kaye recommended said “(t)he surgery is called anterior cervical discectomy. It involves removing the disc and reversing the narrowing of spinal canal and openings for nerve roots. It is a major operation with a small risk of paralysis”[12] and that such an operation would costs between $20,000 and $30,000. Evidently, they contemplate one operation.

24 In the face of the evidence the assistant registrar was justified in making the award of $20,000.

Loss of future earning capacity

25 The award for loss of future earning capacity was $60,000. The plaintiff contends that it should be at least $300,000.

26 There was clear evidence that the plaintiff has cut back on his court work since the accident, and that he cannot work the same hours that he did before.

27 Nevertheless, he is an important part of the firm. He manages it and supervises the other members, and maintains the firm’s relationship with clients.

28 His income has not dropped after the accident. There was no suggestion that his position in the firm has come under threat or that it may be at risk in the foreseeable future. The fact that he has released some equity in the firm to other members is consistent with the growth of a practice. The plaintiff was about 50 years old at the time of the assessment, some lawyers of that age scale down their court work and take on partners if they had not done that earlier.

29 Having said that, there is no doubt that the plaintiff’s injuries did affect his ability to work. When that...