Ong Boon Tin Mrs Moh-Ong Boon Tin v Bernard Wu Kweng Mun

• Jurisdiction: Singapore
• Judge: Dorothy F M Ling
• Judgment Date: 09 July 2021
• Neutral Citation: [2021] SGMC 47
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Court Suit No 19150 of 2018
• Published date: 22 July 2021
• Year: 2021
• Hearing Date: 23 December 2020,27 January 2021,25 June 2021,16 April 2021
• Plaintiff Counsel: Ravendra Krishnasamy (Vision Law LLC)
• Defendant Counsel: Gideon Phng (Seah Ong & Partners LLP)
• Subject Matter: Damages,Measure of damages,Tort
• Citation: [2021] SGMC 47

Deputy Registrar Dorothy F M Ling: Introduction¹

It would have been just another classic case of assessment of damages of a vehicle which followed from a traffic accident between the plaintiff and defendant’s vehicles, except that the plaintiff’s car only had 19 clear days before it was due to be deregistered. It was against this backdrop that the case came before the Court.

Background to the dispute

On 20 May 2018, the plaintiff’s Toyota Rush, SJF 7397J, had a collision with the defendant’s car, SBK 868G. Interlocutory judgment was entered in the plaintiff’ favour on 24 February 2020 at 75% of the damages to be assessed. The matter then came before me to assess the damages to the plaintiff’s car.

It was not disputed that at the time of the accident on 20 May 2018, the plaintiff’s car only had 19 clear days before its Certificate of Entitlement (“COE”) expired on 9 June 2018. This meant that unless the COE was renewed or revalidated, Singapore’s Land Transport Authority (“LTA”) would deregister and scrap the plaintiff’s car. The plaintiff would also be unable to use her car on the road.

On 30 May 2018, the plaintiff renewed her car’s COE by paying the prevailing quota premium (“PQP”). The PQP is calculated by taking the moving average of COE prices in the last three months. The plaintiff paid a PQP amount of S$19,107.

Before the plaintiff renewed the COE for her car, she sent her car to be repaired at the quoted lump sum repair cost of S$8,346 (inclusive of GST). She now seeks to claim, inter alia, this S$8,346 from the defendant.

The parties’ cases The plaintiff’s case

It is the plaintiff’s case that besides the rental expense of S$720 that she incurred whilst her car was being repaired, she should be awarded her cost of the repairs at S$8,346.

The plaintiff argued that she had all along wanted to renew the COE, and had no intention to scrap her car.² So, when she was informed of the repair cost, she gave instructions to proceed with the repairs. This was despite knowing that she had the option to scrap her car and get a replacement car from the market with the money from scrapping her car;³ or that she would be able to get some LTA rebates (COE rebates and the rebates from the Preferential Additional Registration Fee (“PARF”)). It is not disputed that the LTA rebates the plaintiff would be able to receive was S$7,309.

The defendant’s case

The defendant’s appointed surveyor recommended a lump sum repair cost of S$4,250. However, where repair cost is concerned, the defendant is prepared to abide by the opinion of the single joint expert (“SJE”) who had recommended a lump sum repair cost of S$5,300.

In the reports of the defendant’s surveyor⁴ as well as the SJE⁵, it is provided that the economical repair value or limit of the plaintiff’s car (or its economical limit to repair) (“ERL”) was S$500.⁶ The SJE explained⁷ that this was obtained by taking the pre-accident market value of the plaintiff’s Toyota Rush at S$7,809 and subtracting the LTA rebates of S$7,309 (that is, S$7,809 – S$7,309 = S$500). The pre-accident market value of the car was obtained by taking a new Toyota Rush price of S$85,000, allowing for straight line depreciation of the car for the 10 years that the car could be on the road, then working out the per day value of the car before finding its value when there are 19 days left (that is, (S$85,000/3650 days) x 19 days). This was rounded up to S$500. Adding S$500 to the PARF of S$7,309 gave the pre-accident market value of the plaintiff’s car.

Clearly, the SJE’s recommended lump sum repair cost at S$5,300 is above the ERL of S$500. The defendant therefore argued that it was “[neither] economical nor reasonable”⁸ of the plaintiff to have chosen to repair her car – even if at S$5,300 – when she could have had her car scrapped and used the S$7,309 rebates to get a replacement car at about S$7,800. In which case, her net loss would have been a mere S$500. This would have represented the diminution in value of her car. By her choosing to repair her car, the defendant argued that the plaintiff had failed to mitigate her loss.

Issue

The broad issue before me was the quantum of award that should be awarded to the plaintiff as a result of the damage to her car. Underlying this is the question of what the measure of damages should be: the repair cost (at S$8,346) or the net loss to the plaintiff as a result of the traffic accident (at S$500)?

The parties did not dispute the rental cost of S$720 which was occasioned by the accident. The defendant accepted that the plaintiff incurred reasonable rental cost of S$120 per day for 6 days.

In their Joint Opening Statement, the plaintiff and defendant tabulated their respective positions:

S/no	Heads of Claim	Plaintiff	Defendant
1	Cost of repairs; or	S$8,346
Net Loss		S$ 500
2	Rental expense incurred (6 days @ S$120 per day)	S$ 720	S$ 720
3	Loss of use of car (13 days @ S$70 per day)		S$ 910
T O T A L (at 100%)	S$9,066	S$2,130

The Court’s determination

Before this Court delves into the substantive issue on hand, it wishes to address the defendant’s submission that the plaintiff had failed to mitigate her losses.

Mitigation of damages

In his closing submissions, the plaintiff’s counsel highlighted to the Court that mitigation was not specifically pleaded by the defendant. In Yip Holdings Pte Ltd v Asia Link Marine Industries Pte Ltd [2012] 1 SLR 131 (“Yip Holdings”), the High Court made it very clear that “mitigation of damages as a defence must be properly pleaded and proved”.⁹ In the earlier case of The Asia Star [2010] 2 SLR 1154 at [31], the Court of Appeal observed that the issue of mitigation draws up questions of fact and these too must be particularly pleaded.

Looking through the present defendant’s defence, the words of Belinda Ang J in Yip Holdings would equally apply when she said – The state of the defendant’s pleadings contravened the established procedural rule that an assertion that the plaintiff had failed to mitigate [her] loss must be pleaded and proved by the defendant relying on it (see Jia Min Building Construction Pte Ltd v Ann Lee Pte Ltd [2004] 3 SLR(R) 288 at [71] following Geest plc v Lansiquot [2002] 1 WLR 3111 at [16] and recently The “Rainbow Star” [2011] 3 SLR 1 at [56].

So, if the defendant is insisting on the position that the plaintiff did not mitigate her losses, the defendant would be defeating his own case for his lack of specifically pleading the same.

Flowing from the above, the Court is prepared to accept the defendant as simply arguing that the compensation to the plaintiff should not be the quantum of the repair cost at S$8,356 “because [this] uneconomical repair cost does not represent the diminution in value of the plaintiff’s car”.¹⁰

The measure of damages – Repair cost or net loss?

While it may be trite that the measure of damages would be the diminution of the value of the property – or the plaintiff’s car in this case – but is this diminution of the plaintiff’s car the cost of repairs or the net loss of S$500? In arguing the latter, the defendant took into consideration the market value of the plaintiff’s car before the accident at about S$7,800 – as opined by the SJE – and subtracting therefrom the LTA rebates of S$7,309 that the plaintiff would receive upon her car being scrapped (that is, S$7,800 – S$7,309 ≈ S$500). The defendant’s position is that by compensating the plaintiff S$500, the defendant would have placed the plaintiff at the position she would have been at, but for the accident.

To support his position, the defendant’s counsel cited the case authorities of Masterfox Connections Pte Ltd v N & I Transportation and Another [2008] SGMC 5 (“Masterfox”) and Koh Tiam Ting v Soon Li Heng Civil Engineering Pte Ltd [2020] SGDC 172 (“Koh’s case”).

Masterfox Connections Pte Ltd v N & I Transportation and Another [2008] SGMC 5

In Masterfox, the plaintiff sought to recover repair cost of S$24,000 to its damaged van which had a market value of S$11,000. As its scrap value was worth S$7,300, its net market value was reduced to S$3,700 (that is, S$11,000 minus S$7,300).

The Court in Masterfox recognised at [15] that “the normal measure of damages [for goods or property] is the amount by which the value of the goods damaged has been diminished” and that repair cost was the “correct measure of the claimant’s loss”. However, there is a qualification to the above, that is (at [16]) – the cost of repair is appropriate as a measure of loss only if in the circumstances, it is reasonable for the claimant to repair. It would be different if it was cheaper to buy a replacement on the market and sell the damaged property for what it will fetch – see MrGregor, supra at paragraph 32-004.

(Emphasis added.)

In stating the issue, the Court there had confined it to the case before it. It stated the issue as follows: In the circumstances of this case, was it reasonable for the Plaintiffs to repair the vehicle at the cost of $24,000/- and then claim that amount from the Defendants as the loss the Plaintiffs suffered?” (At [17].) (Emphasis added.)

From the finding of the facts of Masterfox, the Court held that it was not reasonable of the plaintiffs to repair their vehicle and then claim the repair cost from the defendant “where the cost of repair far exceeds the replacement cost of the Plaintiffs’ vehicle”. In the same paragraph at [20], the Court then went on to discuss the principle of mitigation. As mentioned, the principle of mitigation would be irrelevant for our purposes since it was not specifically pleaded in our case.

Quite obviously though, underlying the Court’s finding in Masterfox is very much the principle of mitigation. The Court also made it clear that whether repairing...