Padzul Bin Mohamad v Lai Yew Chuang

• Jurisdiction: Singapore
• Judge: Chiah Kok Khun
• Judgment Date: 25 September 2020
• Neutral Citation: [2020] SGDC 226
• Court: District Court (Singapore)
• Docket Number: Suit No 521 of 2016 (Registrar’s Appeal No 45 of 2020)
• Year: 2020
• Published date: 09 October 2020
• Hearing Date: 13 August 2020,21 September 2020
• Plaintiff Counsel: Sandhu Viviene Kaur and Jasmine Dhanaraj (M/s Clifford Law LLP)
• Defendant Counsel: Yek Nai Hui and Sandra Kang (M/s Lawrence Chua Practice LLC)
• Subject Matter: Civil Procedure,Pleadings,Failure to mitigate damages not pleaded,Damages,Mitigation of damages,Test of reasonableness,Measure of damages,Personal injuries cases,Plaintiff claiming damages for future costs of treatment,Plaintiff delayed pursuing treatment
• Citation: [2020] SGDC 226

District Judge Chiah Kok Khun: Introduction

This is an appeal filed by the plaintiff against the decision of the learned deputy registrar (“the deputy registrar”) made at the assessment of damages of this case. The assessment was in respect of personal injury and property damage suffered by the plaintiff following a road traffic accident involving the plaintiff and the defendant. The appeal is centred on the issue of mitigation of damages. The issue in turn gives rise to the question of when it would be considered reasonable for a plaintiff in a personal injuries case to delay pursuing medical treatment. Medical treatment is one of two areas arising out of personal injuries cases which frequently gives rise to arguments over mitigation of damages, the other being loss of earnings.

The plaintiff was riding a motorcycle when the accident occurred. He was thrown off the motorcycle and suffered a fracture in his right hip and an intra-articular fracture in each of his wrists. The parties reached agreement on all heads of claim for property damage and some heads of claim for personal injury. At 100% liability, the quantum of these agreed heads of claim totalled $97,536.98. The heads of claim that proceeded for assessment of damages were: pain and suffering for the fractures to both wrists; future medical expenses for the fractures to both wrists; and future medical expenses for the hip injury.

The injuries to the wrists and hip were as follows:¹ Left wrist – intra-articular fracture with long segment of comminution over metaphysis and proximal radial shaft. Malunion of the left distal radius joint with osteoarthritis. Right wrist – intra-articular fracture with bone loss and comminution over volar-ulnar aspect of distal radius, with osteoarthritis. Right hip – segmental right femur shaft fracture with right intertrochanteric fracture.

In respect of pain and suffering for the injuries to the wrists, the deputy registrar awarded $15,000.00 for the left wrist and $10,000.00 for the right wrist. The plaintiff appeals this and submits the quantum should be $20,000.00 for each wrist. The deputy registrar awarded $86,570.10 for future medical expenses for the wrists and hip injuries. The plaintiff says on appeal that it should be $144,467.80.

The deputy registrar’s assessment of the damages was underpinned by his finding that the plaintiff has failed to discharge his duty to mitigate his loss by undergoing further surgery in or around November 2015 to remove the implants and reconstruct his wrists. The deputy registrar thus precluded the plaintiff from recovering damages attributable to the period after the projected time of recovery, if he had undergone further treatment. For the claim for future medical expenses, the deputy registrar awarded costs of treatment based on the costs estimated by the plaintiff’s medical expert in 2015. The deputy registrar was of the view that the plaintiff has failed to mitigate his damages by undergoing further surgery earlier. The deputy registrar’s reasons for his decision are set out in his judgment at Padzul bin Mohamad v Lai Yew Chuang [2020] SGDC 145.

The plaintiff disagrees that failure to mitigate damages is a factor in assessing the damages for pain and suffering, or future medical expenses. For the future medical expenses, he submits it should be based on the current estimated costs of the surgeries. Further, the plaintiff submits that the defendant is precluded from raising the failure of the plaintiff to mitigate damages when it is not pleaded in the defence.

Issue to be determined

This appeal turns on the issue of mitigation of damages and its related questions. The issue to be determined by me can be taken in two related parts. They are as follows: Whether the defendant is precluded from raising the failure of the plaintiff to mitigate damages when it is not pleaded in the defence. Whether the plaintiff has failed to mitigate his damages.

The medical evidence

The sequence of medical consultation, treatment and prognosis is relevant, and it is as follows.

The plaintiff first underwent surgery after the accident to re-align the fractured bones in each wrist and implant a metal plate to hold the bones together. For the left wrist, wires were inserted to hold the distal radius ulna (“DRU”) joints together, with further protection provided through a wrist splint.² These procedures were carried out at Khoo Teck Puat Hospital (“KTPH”) where the plaintiff was first treated after the accident. The diagnosis of the fractures in his wrists and right hip at KTPH is set out in a medical report prepared by Dr Jeffery Tan Gek Meng (“Dr Tan”). Dr Tan was the plaintiff’s final treating doctor at KTPH. He was also one of the plaintiff’s expert witnesses at the assessment of damages. The plaintiff’s recovery from surgery was uneventful, and he was discharged from hospital on 30 April 2015.³

Thereafter, the plaintiff consulted a private specialist, Dr Lim Beng Hai (“Dr Lim”) on 5 November 2015. Dr Lim gave expert evidence for the plaintiff in these proceedings. Dr Lim observed that although the wrist fractures had re-united, there were osteoarthritic degenerative changes in both DRU joints as revealed in a radiological scan. The osteoarthritis caused pain whenever the wrists were moved. Dr Lim advised that the plaintiff needed to undergo surgery to remove the wrist implants, address the osteoarthritis, and reconstruct the wrists. Dr Lim provided the estimated costs of the further surgery and the necessary follow-up therapy, which was in the sum of $78,570.10.⁴ The plaintiff however did not proceed for treatment.

On 21 November 2016, the plaintiff was examined by Dr Peter Lee Yew Cheng (“Dr Lee”). Dr Lee was the expert witness for the defendant at the assessment of damages. Dr Lee was of the view that the wrist fractures had re-united with good alignment but that the osteoarthritis would worsen over time. He stated that the wrist fractures had caused some loss of function in the forearm and wrists, which will remain permanent. He too advised further surgeries. He advised that the wrist implants required to be removed. He estimated the costs of the further surgery to do so to be $6,000.00. He estimated the costs of surgery to reconstruct the wrists to alleviate the pain and restore wrist movement to be $20,000.00 to $30,000.00 for each wrist. Dr Lee also advised that the hip implant should be removed. He estimated the costs involved to be $8,000.00.⁵

The plaintiff attended at his final follow-up consultation at KTPH on 12 April 2017. Dr Tan noted that the plaintiff had stiffness and early osteoarthritic degeneration in both DRU joints. Dr Tan estimated the costs of the further surgery to remove the implants to be $6,000.00 to $8,000.00, and the costs of reconstruction to both wrists to be $16,000.00 to $20,000.00.⁶

Finally, on 12 April 2018 Dr Lim reviewed the plaintiff and concluded that the osteoarthritis in the DRU joints had worsened and that there was malunion in the left distal radius bone. He advised the plaintiff to undergo the further surgery to correct the osteoarthritis, particularly in the left wrist. He warned that failure to do so would result in radial carpal osteoarthritis developing. By this time, his estimate of the costs of the further surgery was increased to $86,659.30 for the left wrist and $49,808.50 for the right wrist.⁷

The failure to plead the issue of mitigation

The first question that I will discuss in respect of the issue of mitigation of damages in this case relates to the matter of pleading. The plaintiff submits that the defendant is precluded from raising the failure of the plaintiff to mitigate damages when it is not pleaded in the defence, nor was notice in writing given of the defendant’s intention to rely on such failure. I note at the outset that there is little dispute that mitigation of damages is a matter that ought to have been pleaded by the defendant. The plaintiff referred me to the case of Tan Hun Boon v Rui Fend Travel & anor [2018] 3 SLR 244 (“Tan Hun Boon”). At [100], the High Court held: 100 Thus a defendant wishing to rely on the plaintiff’s failure to mitigate is required to plead the failure, giving sufficient particulars to alert the plaintiff of the nature of the defendant’s case and to avoid surprise. Where no pleadings are filed, the defendant is required to give notice in writing to the plaintiff long enough before the hearing to enable the plaintiff to meet the defendant’s claim of failure to mitigate.

As the issue of mitigation of damages was not pleaded in the defence, nor was any notice in writing of the issue given to the plaintiff, the question is whether the defendant is precluded from raising the failure of the plaintiff to mitigate damages. The deputy registrar takes the position that we cannot be descending blindly into technicalities when assessing the adequacy of pleadings. The deputy registrar referred to the recent decisions in Fu Loong Lithographer Pte Ltd and others v Mok Wing Chong (Tan Keng Lin and others, third parties) [2018] 4 SLR 645 and BOM v BOK and another appeal [2019] 1 SLR 349 (“BOM”).

I agree. In my view, we should not be unduly constrained by pleadings. Pleadings should not be viewed as straitjackets, shackling parties to absolute positions on formalistic and technical grounds. Doing so may hamper the fair disposal of disputes before the courts. In my view, the starting point in the analysis of any issues of pleadings must go back to the function of pleadings. We must bear in mind that one of the primary objectives of pleadings is for a party to inform the other parties of its case, so that no party is taken by surprise or denied the occasion to produce the evidence relevant to the dispute. It is clear to me that the test to be applied when such issues arise is to determine if the other party was taken by surprise by the...