Pollmann, Christian Joachim v Ye Xianrong

• Jurisdiction: Singapore
• Judge: Vinodh Coomaraswamy J
• Judgment Date: 26 April 2021
• Court: High Court (Singapore)
• Docket Number: Suit No 908 of 2015 (Assessment of Damages No 1 of 2020)

Pollmann, Christian Joachim

and

Ye Xianrong

[2021] SGHC 77

Vinodh Coomaraswamy J

Suit No 908 of 2015 (Assessment of Damages No 1 of 2020)

General Division of the High Court

Damages — Measure of damages — Personal injuries cases — Losses extending into the future being assessed — Whether relaxed standard of proof applied to assessment of future losses

Damages — Measure of damages — Personal injuries cases — Parties referring to actuarial tables found in WS Chan, FWH Chan & JSH Li, Personal Injuries Tables Singapore 2015 (Sweet & Maxwell, 2015) (“Singapore Tables”) — Whether use of Singapore Tables could be endorsed as principle of law

Damages — Measure of damages — Personal injuries cases — Plaintiff arguing that judicial notice should be taken of rates of return of various financial instruments as stated in public documents — Whether judicial notice could and should be taken of such financial and economic information

Held, assessing the damages payable by the defendant to the plaintiff to be $13,660,183.05 :

(1) The damages for a particular head of future loss had traditionally been calculated using the multiplier-multiplicand approach. In determining the multiplier, in the absence of authoritative actuarial tables for Singapore lives, and in the absence of any formula fixed by legislation, the precedent approach (which drew analogy with past precedents) and the arithmetic approach (which used the arithmetic formula to determine the net present value of a future stream of payments) were to be preferred in Singapore. These two approaches were to be used independently, with the precedent approach used to cross-check the result obtained by the arithmetic approach so as to ensure consistency with past awards in like cases: at [9] and [16].

Loss of future earnings

(2) The use of the actuarial tables found in WS Chan, FWH Chan & JSH Li, Personal Injuries Tables Singapore 2015 (Sweet & Maxwell, 2015) (“Singapore Tables”) could not be endorsed as a principle of law. The Singapore Tables had not attained the status of authoritativeness, and were based on outdated life expectancy data. Any reliance on the Singapore Tables would be done in addition to, and not in replacement of, the arithmetic and precedent approaches: at [31] and [32].

(3) In determining the discount rate, judicial notice could be taken of the rates of return of deposits and various financial instruments, as asserted in certain public documents, if such public documents amounted to “authoritative sources”. Authoritative sources included, but were not limited to, an official publication by an arm of the Government which asserted a fact within the purview of that arm of Government. However, that judicial notice could be taken of such facts did not invariably mean that judicial notice would be taken. The court retained a discretion to take judicial notice of certain facts, and this discretion might turn on whether that fact was merely by way of background, or was critical to the outcome of the case. In any event, even if judicial notice was taken of the rates of return, there was nevertheless insufficient evidential basis to justify selecting a discount rate beyond the lower end of the conventional range, as argued by the plaintiff: at [46] to [68].

(4) Applying a discount rate of 4.25%, and a number of periods (comprised in the duration of the plaintiff's loss of earnings) of 21 years, the multiplier on the arithmetic approach was 13.71. This was consistent with precedents, and the actuarial data from the Singapore Tables: at [78] to [81].

(5) In determining the multiplicand, the burden of proof rested with the plaintiff, and the standard of proof was on a balance of probabilities. However, in relation to the assessment of future losses (which included both loss of income and future medical expenses), the plaintiff needed only show that he had an appreciable chance of avoiding this loss, as opposed to showing on the balance of probabilities that he would have avoided this loss. Even then, in so far as there was a lower standard of proof in claims for future losses, that lower standard applied only to events which were beyond the plaintiff's control: at [86] to [90].

(6) Applying this lower standard of proof, the plaintiff discharged the burden of showing that he would have become a “Managing Director Senior Advisor”, but for the accident. On that basis, the plaintiff's projected annual average post-tax net income was $658,967.24. A further lump-sum award of $100,000 was also appropriate, to take into account any post-retirement income the plaintiff could have obtained: at [156] to [159].

(7) Applying the multiplier and multiplicand, the award for loss of future earnings was $9,235,541: at [133].

Recurring medical expenses

(8) The applicable principles for determining the multiplier, as canvassed in the context of loss of future earnings, applied equally to assessing the award for the plaintiff's future medical expenses. Applying the principles, the appropriate multiplier was 18: at [134] and [149].

(9) In relation to the multiplicand, a plaintiff was entitled to recover damages from the defendant only for the cost of future medical expenses which the plaintiff would reasonably incur by reason of the defendant's tort. The requirement of reasonableness arose because medical expenses, properly analysed, were steps which the plaintiff took to alleviate the loss and damage which a plaintiff suffered by reason of the tort. The requirement of reasonableness was simply an aspect of the plaintiff's so-called “duty” to mitigate his loss. However, there was no further requirement that the plaintiff could recover damages for the cost of a particular medical treatment only to the extent that such treatment was medically necessary and effective. That being said, necessity and effectiveness (or the lack thereof) were relevant factors in considering whether a medical treatment was reasonable, which in turn impinged upon mitigation: at [150] to [153].

(10) Applying the principles, the appropriate multiplicand was $50,684 per annum. The plaintiff's award for future medical expenses (excluding psychiatric treatment) was therefore $912,312. The plaintiff's award for psychiatric treatment was $181,900, and the total award for recurring medical expenses was $1,094,212: at [187] to [191].

One-off future medical expenses

(11) Much like recurring medical expenses, one-off medical expenses were recoverable in so far that they were reasonable. Whether the treatment was necessary and effective were relevant factors when determining whether the medical treatment was reasonable. Applying the principles, the award for one-off future medical expenses was $694,422: at [192] and [242].

Pre-trial loss of earnings

(12) The plaintiff's pre-trial loss of earnings was calculated for the period from 2015 to 2019, both years inclusive. The calculation would begin with an assessment of the sum which the plaintiff would have earned during this period but for the accident, from which his actual earnings during this period would be deducted to arrive at his net loss of earnings during this period. The calculations yielded a figure of $1,543,968: at [243] and [248].

(13) The pre-trial loss of earnings for the plaintiff's wife was not recoverable as such in an action by the plaintiff. While it was conceivable that the plaintiff's wife might in principle have a cause of action against the defendant in tort on the basis that the defendant owed her a duty of care not to injure her husband, no such claim was asserted by the wife. The only legal route for the plaintiff to recover his wife's loss was therefore to recharacterise her loss as his loss. The loss which the defendant's tort inflicted upon the plaintiff was the need for care. The measure of damages for this loss was the proper and reasonable costs of meeting the plaintiff's need for care. Therefore, the income which the plaintiff's wife gave up the opportunity to earn in order to look after the plaintiff ought to be only a starting point in assessing the monetary value of plaintiff's loss. If it was reasonable to secure care for the plaintiff at a cost below the income which his wife lost, the defendant was not liable for the cost of providing care measured by the plaintiff's wife's lost income. On that basis, the reasonable cost of care which the plaintiff could recover for the care which his wife gave him was $59,000: at [253] to [259].

Pre-trial special damages

(14) Travelling expenses incurred by a member of a plaintiff's family were not recoverable unless the visits by or the company of the plaintiff's family members were important elements in aiding his recovery, because the test was of “the necessity for the visits and thus the expenditure”. Applying this test, the travel costs incurred by the plaintiff's wife was limited to the price of economy class tickets from Singapore to Zurich and back: at [273] and [277].

(15) The costs of cancelling flights booked before the accident was not too remote. The test for remoteness in the tort of negligence was the same as that in the law of contract, ie, that of reasonable foreseeability. It is no defence for the defendant to say that he did not know that the plaintiff was someone who had booked multiple flights on business and first class that he would have to cancel. That being said, the plaintiff had not discharged his burden of proving this head of claim: at [286] and [287].

(16) The total award for pre-trial special damages was $643,040.05: at [288].

Total award

(17) The total award was $13,660,183.05: at [290].

Case(s) referred to

Arpad, The [1934] P 189 (refd)

Asia Hotel Investments Ltd v Starwood Asia Pacific Management Pte Ltd [2007] SGHC 50 (refd)

Chan Pak Ting v Chan Chi Kuen (No 2) [2013] 2 HKLRD 1 (refd)

Donnelly v Joyce [1974] QB 454 (refd)

Hauque Enamul v China Taiping Insurance (Singapore) Pte Ltd [2018] 5 SLR 485 (refd)

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