Poh Huat Heng Corporation Pte Ltd v Hafizul Islam Kofil Uddin

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 25 June 2012
• Neutral Citation: [2012] SGCA 31
• Published date: 05 July 2012
• Date: 25 June 2012
• Year: 2012
• Hearing Date: 16 January 2012,28 July 2011
• Plaintiff Counsel: Eu Hai Meng (United Legal Alliance LLC)
• Citation: [2012] SGCA 31
• Defendant Counsel: Mohamed Mohideen and Cheah Saing Chong (Yeo Perumal Mohideen Law Corporation)
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 28 of 2011

Chao Hick Tin JA (delivering the judgment of the court): Introduction

This is an appeal against the decision of the High Court in Registrar’s Appeal No 260 of 2010 (“RA 260/2010”), where the judge (“the Judge”) dismissed the appeal by the appellants (“the Appellants”) against the award made by an assistant registrar (“the AR”) following an assessment of damages for the injuries sustained by the respondent (“the Respondent”) as a result of an industrial accident which occurred on 21 August 2008 (“the Accident”). For convenience, the assessment of damages before the AR will hereafter be referred to as “the assessment hearing”.

Background

The Respondent, Hafizul Islam Kofil Uddin, is a Bangladeshi national.⁰ The first appellant, Poh Huat Heng Corporation Pte Ltd, is the Respondent’s employer.¹ Although the exact relationship between the Respondent and the second and third appellants (Hua Liong Machinery & Trading Pte Ltd and Viscas Engineering Singapore Pte Ltd respectively) is far from clear, it is not material and nothing turns on it as the Appellants consented to an interlocutory judgment in favour of the Respondent for damages to be assessed with liability apportioned at 90% against the Appellants and 10% against the Respondent. Furthermore, the consent interlocutory judgment ordered that the liability of the Appellants was to be joint and several.²

On 21 August 2008, the Respondent was laying cables at a Mass Rapid Transit worksite at Woodlands Avenue 3, Singapore, when a bag of cement fell on his back. As a result, he suffered an injury to his spine which resulted in paraplegia.³ At the time of the Accident, the Respondent was 27 years of age (having been born on 2 June 1981).

The Respondent now suffers from the following permanent disabilities:⁴ paralysis of his lower limbs, with the effect that he is permanently wheelchair-bound; absence of sensation below the groin and absence of control over his bowels and bladder (which necessitates catheterisation several times a day for urination); erectile dysfunction; and infertility.

After a period of hospitalisation and treatment in Singapore, on 17 January 2009, the Respondent returned to Bangladesh.⁵ He remained home-bound until 2 November 2009, when he enrolled himself in a nursing home in Dhaka, Bangladesh.⁶

The Respondent’s pleaded claims in damages

On 19 March 2009, the Respondent commenced an action against the Appellants claiming damages on account of the injuries which he had suffered. In the action, he claimed the following:⁷ Special damages: loss of earnings at $874 per month from 21 August 2008 to 20 December 2008 and continuing thereafter at $874 per month up to the date of the trial; cost of wheelchairs and various aids and appliances up to the date of the trial; and medical and transport expenses up to the date of the trial.⁸ General damages: damages for pain and suffering and loss of amenities; loss of future earnings and/or future earning capacity; cost of future medical expenses; and cost of future transport expenses.

The award made by the AR

As liability was agreed and interlocutory judgment entered (see [2] above), an assessment of damages (viz, the assessment hearing as defined at [1] above) was carried out by the AR, who rendered a total award of $1,001,750.80 (based on 100% liability before apportionment), consisting of the following:⁹ Special damages (by consent) of $26,268.30 (comprising $10,868.95 for pre-trial medical expenses and $15,399.35 for pre-trial loss of income). General damages for the following: $166,000 for pain and suffering and loss of amenities (comprising $160,000 for pain and suffering, and $6,000 for loss of marriage prospects); $127,200 for loss of future income; $32,400 for future transport costs; $212,150.88 for future nursing care and nursing home expenses; $47,731.68 for future expenses on diapers and catheters; and $390,000 for future medical expenses. We should add here that the AR’s award for future medical expenses was in respect of the Respondent’s future medical expenses in Bangladesh as the Respondent has returned to that country and is now living there. The references hereafter to the Respondent’s claim for future medical expenses and the award for this item should thus be understood in this light.

Both the Appellants and the Respondent appealed against the AR’s award (via RA 260/2010 and Registrar’s Appeal No 263 of 2010 (“RA 263/2010”) respectively).¹⁰ The Judge dismissed both appeals and did not issue any written grounds.

The arguments raised on appeal

Before us now is an appeal by the Appellants against the Judge’s decision in RA 260/2010. The Appellants have essentially raised two main lines of argument. First, they contend that the Judge erred in taking the view that he could only intervene if the AR was shown to have erred in law.¹¹ Second, the Appellants challenge the general damages assessed by the AR in respect of the following heads of claim (“the disputed heads of claim”):¹² pain and suffering and loss of amenities; loss of future earnings; future medical expenses; and future transport expenses, future nursing care and nursing home expenses as well as future expenses on diapers and catheters (referred to hereafter as “future transport and care expenses” for short).

The Respondent submits that the Judge did not err in his approach.¹³ He also seeks to support each of the awards made by the AR in respect of the disputed heads of claim. In this regard, the Respondent has highlighted the fact that some of these awards were premised on an agreement between the parties following concessions or suggestions made by the Appellants’ counsel at the assessment hearing.

We heard oral arguments for the appeal on 28 July 2011. The hearing was then adjourned for the parties to file further submissions on various issues.

On 19 September 2011, the Respondent filed Summons No 4149 of 2011 (“SUM 4149/2011”) for leave to bring a cross-appeal out of time against the award made in respect of special damages, which (as noted at [7(a)] above) had been made by consent, and the award made in respect of general damages. We heard SUM 4149/2011 on 16 January 2012 and dismissed it with costs fixed at $500 to be paid by the Respondent to the Appellants.

The issues before this court

In the present appeal, the following issues arise for this court’s consideration: Did the Judge err in the approach which he adopted in dealing with the Appellants’ appeal in RA 260/2010 (“Issue 1”)? Can the Appellants make submissions which are inconsistent with an agreement reached before the AR on certain facts which were to be used as the basis for assessing damages (“Issue 2”)? Should any of the awards made by the AR in respect of the disputed heads of claim (as set out above at [9]) be varied (“Issue 3”)? We will address each of these issues in turn in the discussion which follows.

Our decision Issue 1: Did the Judge err in the approach which he adopted in RA 260/2010?

With regard to Issue 1, the applicable law was pronounced by this court in Chang Ah Lek and others v Lim Ah Koon [1998] 3 SLR(R) 551 at [14] and [20]–[21], where it held that a High Court judge hearing an appeal against an assistant registrar’s decision on an assessment of damages: was not limited by the rule that appellate interference was only warranted where the assistant registrar had erred on a matter of principle, had misapprehended the facts or had, for other reasons, made a wholly erroneous estimate of the damages; and was entitled to vary the assistant registrar’s award as he deemed fair and just. Reference may also be made to Ho Yeow Kim v Lai Hai Kuen [1999] 1 SLR(R) 1068 (where this court held that the position of a High Court judge hearing an appeal against an assistant registrar’s award of damages “[was] not like that of an appellate court hearing an appeal from a decision of a trial judge” [emphasis added] (at [14]), in that the High Court judge “deal[t] with [the] appeal from the [assistant] registrar ‘as though the matter came before him for the first time’” (at [15])) and Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 439 at [24] (where this court held that the High Court judge was entitled to enhance the assistant registrar’s award for pre-trial loss of earnings).

As noted above at [8], the Judge did not issue any written grounds of decision in respect of RA 260/2010 and RA 263/2010. We note that in the certified transcript of the hearing notes for these two appeals, the Judge merely recorded the Appellants’ counsel as having submitted on two occasions that he was not arguing that the AR had erred in law.¹⁴ On the face of the certified transcript, the Judge did not indicate that the reason for his dismissal of both appeals was his belief that the AR had not erred in law. The certified transcript only attributes the Judge as having said:¹⁵ CT: Both appeals dismissed.

No order as to costs.

Nothing was indicated as to the approach which the Judge took. In the circumstances, it is not possible for this court to determine whether the Judge did in fact adopt an incorrect approach in reaching his decision. Therefore, we are unable to agree with the Appellants that a wrong approach had in fact been taken by the Judge in RA 260/2010.

We note that this court in Thong Ah Fat v Public Prosecutor [2012] 1 SLR 676 expounded on the judicial duty to give reasons (reference may also be made to Loh Sioh Hon (administratrix of the estate of Chiam Heok Yong, deceased) v Loh Siok Moey [2012] SGCA 14 at [15]). The Appellants did not, however, argue that the Judge’s decision in RA 260/2010 should be set aside on the ground that the Judge did not provide his reasons for dismissing the appeal.

Issue 2: Can the Appellants make submissions which are inconsistent with an agreement reached before the AR on certain facts which were...