Ong Zern Chern Philip v Wong Siang Meng

• Judge: Gillian Koh Tan AR
• Judgment Date: 12 November 2004
• Neutral Citation: [2004] SGHC 256
• Citation: [2004] SGHC 256
• Court: High Court (Singapore)
• Plaintiff Counsel: Andrew Hanam (Attorneys Inc)
• Defendant Counsel: Nagaraja S Maniam (Just Law LLC)
• Published date: 26 November 2004

12 November 2004 Judgment reserved.

AR Gillian Koh Tan:

1 The plaintiff, a tank commander in the Singapore Armed Forces (“the SAF”), is presently 26 years old. The plaintiff was injured in a road traffic accident on 28 March 2001 when a car collided into his motorcycle while he was riding along the Pan Island Expressway. The car was driven by the defendant and the plaintiff brought the present suit against the defendant, claiming damages arising from the accident. Interlocutory judgment was entered against the defendant on 16 April 2004.

Agreed claims

2 In the course of the assessment proceedings, the parties agreed upon the following items that were claimed by the plaintiff:

General damages

Retrograde amnesia with headaches	$5,000.00
Right temporal bone fracture	$18,000.00
Abrasion over the back of the upper right arm	$1,500.00
Right clavicular fracture	$12,000.00
Bruise over left knee and torn posterior cruciate ligament	$10,000.00
Neck pain with residual symptoms	$1,500.00
Scarring	$4,000.00
Early osteoarthritis of the left ankle and knee	$5,000.00

Special damages

Pre-trial medical expenses	$1,625.10
Pre-trial transportation expenses	$314.70
Damaged handphone	$246.39
Damaged motor cycle gloves	$280.00

Disputed claims

3 A number of claims remained in dispute, including loss of future earnings and loss of earning capacity. In addition, the defendant disputed three heads of special damages involving certain sums payable to the SAF upon the termination of the plaintiff’s employment.

Background facts

4 It was undisputed that the plaintiff had enlisted in the SAF under the Joint Polytechnic-Singapore Armed Forces Diploma Scheme (“the JPSD Scheme”). Under the terms of the JPSDS Scheme, the SAF paid the plaintiff’s diploma course fees and provided the plaintiff with a monthly allowance while he was a student at the Nanyang Polytechnic. In consideration of this, the plaintiff covenanted to work with the SAF for a period of six years. The plaintiff graduated with a Diploma in Information Technology in May 1999 and commenced employment with the SAF on 31 May 1999. His bond period will therefore expire on 31 May 2005.

5 Prior to the accident, the plaintiff was a tank commander. The plaintiff’s Physical Employment Status (“PES”) was PES B and he was therefore classified as “fit for most vocations”.

6 As a result of the accident on 28 March 2001, the plaintiff suffered a disruption of the left ankle syndesmosis and a fracture of the right clavicle. He also sustained a torn posterior cruciate ligament in his left knee. The plaintiff’s medical expert, Dr Yeo Khee Quan (“Dr Yeo”), an orthopaedic surgeon in private practice, testified that the plaintiff suffered from neck pain whenever he remained in a sitting position for more than 20 minutes. Dr Yeo further noted that the plaintiff’s complaints of neck pain were supported by objective clinical evidence such as muscle spasms. Dr Yeo also confirmed that the plaintiff had difficulty squatting, running and jumping, and was unable to carry weights of more than 10kg as a result of the accident.

7 Due to these injuries, the plaintiff was downgraded to PES E9L9 and classified “unfit for any form of physical activities” and “suitable for sedentary duties at bases” in February 2003. Following this, the plaintiff was given a one-year reprieve from termination in the hope that his medical condition would improve. His PES was, however, revalidated by the SAF on 26 April 2004.

8 I should point out that the plaintiff was involved in a second road traffic accident on 20 March 2004. However, Dr Yeo testified that this second accident did not in any way affect the injuries to the plaintiff’s ankle, shoulder and collarbone caused by the first accident. I also noted that the defence did not submit that certain injuries should be disregarded for the purposes of the assessment due to the second accident.

The plaintiff’s claim for loss of future earnings and loss of earning capacity

9 The plaintiff’s claim for loss of future earnings was in respect of a gratuity of $31,716.92 payable under the SAF’s Specialist Account to Reward Ten Years Engagement (“START”) scheme. In support of this claim, the plaintiff led evidence from Major Lai Wing Chong (“Major Lai”), Head (Career Planning) in the SAF, who testified that the START scheme formed part of the plaintiff’s benefit package as a military warrant officer and specialist. Major Lai confirmed that the plaintiff would be entitled to the gratuity on the completion of ten years’ employment with the SAF, i.e. on 31 May 2009.

10 The plaintiff also sought an award for loss of earning capacity. Counsel for the plaintiff submitted that the plaintiff had a long working life ahead of him and highlighted the fact that the plaintiff’s vocational training as a tank commander had been rendered useless by the accident. Looking forward, the plaintiff would not be able to work in jobs which were physically demanding or which would require him to sit for long periods of time, as Dr Yeo had indicated in his evidence.

11 Counsel for the plaintiff also submitted that while the plaintiff had a Diploma in Information Technology, the plaintiff was unlikely to earn more than $1,600 per month if he worked as a computer technician. This estimate was based on the Ministry of Manpower’s figure for the median monthly gross wage for a computer technician as of June 2003, which was $1,917. In respect of the appropriate quantum to award for loss of earning capacity, counsel for the plaintiff urged me to adopt the multiplier/multiplicand approach that is generally used in loss of future earnings cases. It was argued that an appropriate multiplicand was $12,000 (based on the plaintiff earning $1,000 less than his present salary of $2,800 each month) and that an appropriate multiplier was 18. Counsel therefore submitted that an award of between $216,000 to $224,000 for loss of earning capacity should be made.

12 At this juncture, I should point out that at the time of the assessment of damages hearing, the plaintiff was still employed by the SAF. The defendant highlighted this and submitted that the plaintiff had not shown that there was a real and substantial risk that the plaintiff’s contract of employment would be terminated. The defendant therefore urged me to make nil awards for loss of future earnings and loss of earning capacity. The defendant submitted, in the alternative, that if an award for loss of earning capacity was to be made, an appropriate award would be $72,000, based on Mukhtiar Singh v Belwyndarjeet Singh [1993] 3 SLR 741 which the defendant submitted was “in pari materia” with the present facts.

13 I now turn to the disputed issue of whether there was a real and substantial risk that the plaintiff’s contract of employment would be terminated.

Whether there was a real and substantial risk that the plaintiff’s contract of employment would be terminated

14 In assessing the arguments raised by both parties on this point, I was guided by the following passage from Warren Khoo J’s judgment in Soon Pook Seng Arthur v Oceaneering International Sdn Bhd [1995] 3 SLR 531; [1995] SGHC 146 at [58]:

The only thing certain about the future is that it is fraught with uncertainties. One cannot deal with it on the basis of a finding, based on one’s view as to what would be or what would have been likely. So long as there is or was a fair possibility, as opposed to a mere fanciful speculation, that something will or would have happened, that possibility must be taken into account, with due allowance made for the possibility that it might not happen or that it might not have happened. There need not be an ‘all or nothing’ sort of dilemma. A solution can and should be found somewhere in between. [Emphasis added]

15 Applying these principles to the present case, I was of the view that the evidence revealed that it was highly likely and indeed almost certain, that the plaintiff’s employment with the SAF would be terminated. In this regard, I took into account Major Lai’s evidence that the SAF had already begun to process the termination of the plaintiff’s employment. Specifically, Major Lai explained that a joint decision had been made by the SAF’s Career Planning Department and the plaintiff’s parent unit to adopt a particular termination approach. This was likely to lead up to the giving of notice to the plaintiff on 1 November 2004.

16 I further noted Major Lai’s testimony that, barring any “compelling reasons”, the plaintiff’s employment would be terminated in January 2005. When asked by counsel for the plaintiff to elaborate on this, Major Lai said that while it would be possible for the plaintiff to appeal against the SAF’s decision to terminate, he could not see, “from the SAF’s viewpoint”, any compelling reason to extend the plaintiff’s employment. I also noted the evidence given by Major Lai in cross-examination:

DC: Is there any possibility in your opinion that the SAF is prepared to extend the period of termination?

PW3: I cannot see any compelling reason to keep him in service. The SAF has already given him a reprieve period and taken into account his absence from work where he continued to draw a regular combat pay. Looking at his medical status, I could not find any compelling reason why we should extend.

DC: It is not that the plaintiff cannot work in an administrative job, for example. It is that he cannot remain in the job vocation he was recruited under?

PW3: He was recruited under the vocation of Tank Leader. That is his primary duty. He has not been able to fulfil his primary duty. Because of his medical status, he is excused from all physical activities, so there are no compelling reasons to keep him in the SAF further.

DC: Did the plaintiff approach SAF to ask for SAF to revocationalise him?

PW3: There is no record that the plaintiff has officially approached SAF. However, at E9L9...