Quek Yen Fei Kenneth (by his litigation representative Pang Choy Chun) v Yeo Chye Huat and another appeal

• Judge: Sundaresh Menon CJ
• Judgment Date: 24 April 2017
• Neutral Citation: [2017] SGCA 29
• Citation: [2017] SGCA 29
• Defendant Counsel: Renuka d/o Karuppan Chettiar (Karuppan Chettiar & Partners)
• Published date: 28 April 2017
• Hearing Date: 23 January 2017
• Plaintiff Counsel: P Padman and Hue Jia Pei (KSCGP Juris LLP)
• Docket Number: Civil Appeals Nos 45 and 52 of 2016
• Court: Court of Appeal (Singapore)
• Date: 24 April 2017
• Subject Matter: Personal injuries cases,Measure of damages,Damages

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

Civil Appeal No 45 of 2016 (“CA 45”) and Civil Appeal No 52 of 2016 (“CA 52”) are, respectively, an appeal (by the plaintiff) and a cross-appeal (by the defendant) against the decision of the High Court Judge (“the Judge”) in Suit No 695 of 2012 (see Quek Yen Fei Kenneth v Yeo Chye Huat [2016] 3 SLR 1106 (“the GD”)). The Judge awarded the plaintiff, Quek Yen Fei Kenneth (“Quek”), damages of $452,509.41 in respect of a motor accident for which the defendant, Yeo Chye Huat (“Yeo”), had been found to be 100% liable. The Judge also awarded Quek costs on a standard basis for the trial on liability up until the date of an offer to settle (“OTS”) made by Yeo on 15 February 2016, and ordered that each party bear his own costs for the assessment of damages hearing.

Background

Quek was born on 17 November 1991, and is 25 years old today. He stopped his studies in March 2007 at 15 years of age, dropping out three months into his repeat year for the Secondary Three Normal (Technical) course. He enlisted for National Service on 4 March 2011.

On 11 August 2011, when Quek was still in National Service, he was riding his motorcycle when a taxi driven by Yeo collided into him (the “Accident”). His right foot was severely mangled and his right leg had to be amputated below the knee. His right collarbone was also fractured.

Quek brought an action in negligence against Yeo. This action was heard by the Judge, who gave judgment in Quek’s favour with damages to be assessed on the basis of 100% liability on the part of Yeo. The reasons for the Judge’s decision on liability are set out in Quek Yen Fei Kenneth v Yeo Chye Huat [2013] SGHC 132. Yeo’s appeal on liability to the Court of Appeal was subsequently withdrawn.

The assessment of damages took place also before the Judge, who gave his decision on 3 March 2016. With the consent of the parties, this decision was subsequently revised at a hearing in chambers before the Judge on 27 April 2016 to reflect the updated prices of an item of future medical expenses (“FME”). Interest and costs were also assessed at this hearing. In the interim, however, both Quek and Yeo filed notices of appeal against the 3 March 2016 decision on the assessment of damages (ie, before the Judge finalised his awards for FME, interest, and costs).

It was agreed before the Judge, and neither party is now disputing, that the two notices of appeal cover all issues in the proceedings, including the orders made at the chambers hearing on 27 April 2016. Further, neither party is taking issue with the fact that the respective notices of appeal were filed before that chambers hearing.

Yeo made two OTSes before the assessment of damages hearing on 16 February 2016, neither of which was accepted by Quek: on 28 January 2016, Yeo made a first OTS for $480,000.00, which remained open for 14 days (until 11 February 2016); and on 15 February 2016, Yeo made a second OTS for $550,000.00, which remained open for 14 days (until 29 February 2016) and included a clause that specifically withdrew the first OTS.

Before us, the parties proceeded on the basis that Quek’s claims for FME, loss of future earnings (“LFE”), and loss of earning capacity (“LEC”), relate only to the period on and after 3 March 2016, which was the date the Judge gave his decision on the assessment of damages. At that time, Quek was 24 years old. Accordingly, we assessed FME, LFE, and LEC only for the period on and after 3 March 2016.

The Judge awarded Quek a total of $452,509.41 in damages, which comprised general damages, special damages, and interest as follows (see the GD at [123]):

General Damages
Pain and suffering	$102,000.00
	Below-knee amputation	$80,000.00
	Right collarbone fracture	$15,000.00
	Multiple scarring	$7,000.00
FME	$106,737.87
	K3 prostheses (@ $3,493.30/year)	$62,879.47
	Medical consultation (@ $92.00/year)	$1,656.00
	Aqua limb (@ $710/year)	$12,780.00
	Additional K4 prosthesis	$7,276.00
	One back-up K3 prosthesis	$6,146.40
	Neuroma surgery (provisional)	$5,000.00
	Collarbone surgery (provisional)	$11,000.00
Future transport expenses	$1,000.00
LEC (@ $750/month over 18 years)	$162,000.00
Total General Damages	$371,737.87
Special Damages
Renovation fee		$10,670.40
Medical expenses		$33,052.87
Transport expenses		$3,000.00
Loss adjuster fees		$279.00
Pre-trial loss of earnings		$14,500.00
Total Special Damages	$61,502.27
Interest
General Damages (pain and suffering) from writ to interim payment of $50,000.00	$5,332.33
General Damages (pain and suffering) from interim payment of $50,000.00 to judgment	$7,077.07
Special Damages (excluding pre-trial loss of earnings)	$5,728.12
Special Damages (pre-trial loss of earnings only)	$1,131.75
Total Interest	$19,269.27
Total Damages	$452,509.41

On the issue of costs, the Judge also ordered Yeo to pay Quek the costs of the trial on liability up until 15 February 2016 (the date of the second OTS) on a standard basis, while the parties were to bear their own costs of the assessment of damages hearing (see the GD at [130]).

Issues before this court

CA 45 and CA 52 concern the Judge’s decision on damages and on costs, and do not involve issues of liability for causing the Accident. The issues in dispute can be categorised as follows: whether, as Yeo argues in CA 52, this court ought to reduce the Judge’s award of $80,000.00 in general damages for pain and suffering for the below-knee amputation; whether this court ought to vary the Judge’s award of $106,737.87 in general damages for FME: as Quek argues in CA 45, to: increase the multiplier for FME from 18 years to 25 years, and, accordingly, the awards for the use and replacement of a K3 prosthesis, the use and replacement of the aqua limb, and the medical consultations; award the costs of the use and replacement of a K4 prosthesis with a multiplier of 18 years; provide for price inflation at a rate of 3% to 5% per annum in the award of FME in respect of the maintenance and replacement of the K3 and K4 prostheses; award the costs of the Neuroma and collarbone surgeries as a lump sum rather than as provisional damages; as Yeo argues in CA 52, to: reduce the Judge’s award in respect of the use and maintenance of a K3 prosthesis on the ground that Quek would need only a K2 prosthesis after 60 years of age; set aside the Judge’s award in respect of an aqua limb; set aside the Judge’s award in respect of the K4 prosthesis purchased by Quek on the ground that an award for the same amount has been made as part of special damages; whether, as Quek argues in CA 45, this court ought to make an award of damages for LFE, and, if so, whether to vary the Judge’s award of $162,000.00 of general damages for LEC; and whether, as Yeo argues in CA 52, this court ought to reduce the Judge’s award of $162,000.00 of general damages for LEC, which was based on a sum of $750.00 per month for 18 years.

In addition, Yeo applies in CA 52 to vary the Judge’s order on costs for Yeo to pay Quek’s costs on a standard basis only up to the date of Yeo’s first OTS on 28 January 2016, rather than up until the date of Yeo’s second OTS on 15 February 2016.

Decision below Pain and suffering

The Judge awarded Quek $80,000.00 for the pain and suffering from the below-knee amputation of his right leg. The Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“Guidelines”) provide a range of $40,000.00 to $70,000.00 for the pain and suffering from a below-knee amputation of one leg. The Judge gave Quek a slight uplift of $10,000.00 for the pain and suffering from his losing of a leg at the relatively young age of 20 years, his undergoing surgery to attempt to salvage the leg, and his continued experiencing of phantom limb pain and pain from a neuroma at the amputation stump even four years after the Accident (see the GD at [14]–[16]).

FME Multiplier

The Judge applied a multiplier of 18 years for FME, based on Quek’s age of 24 years at the date of the trial. He did not grant the 24-year multiplier sought by Quek because it was speculative to determine the extent to which medical advancements would increase the life expectancy of the average male during Quek’s lifetime so as to justify a 24-year multiplier (see the GD at [30]–[32]).

Multiplicand

The Judge found that prostheses ranging from levels K0 to K4 exist and are designed to support increasing intensities of activity. A K4 prosthesis was equipped with a running blade and facilitated a level of ambulation that allowed for the high impact activities (eg, sprinting) typical of an athlete. A K3 prosthesis supported a lower intensity of activity that fulfilled the demands of a typical community ambulator (eg, light jogging and running for the bus) and allowed a user to traverse most environmental barriers as well as engage in exercise. A K2 prosthesis, by contrast, did not admit of such activities, and enabled only such low intensity activities as traversing curbs, stairs, and uneven surfaces (see the GD at [35]).

The Judge found Quek to be an active young man, whose day-to-day needs included light jogging and running for the bus. He thus awarded Quek a lump sum for the costs of the use and replacement of a K3 prosthesis equivalent to the receipt of $3,585.30 per annum (comprising $3,493.30 for the K3 prosthesis itself and $92.00 for the...