Radhakrishnan Naidu s/o Balram v Esa'ri bin Samad

• Court: District Court (Singapore)
• Judge: Chua Wei Yuan
• Judgment Date: 14 May 2021
• Neutral Citation: [2021] SGDC 103
• Citation: [2021] SGDC 103
• Docket Number: District Court Suit No 1265 of 2011 (NA 2511/2011)
• Hearing Date: 20 August 2019,09 June 2020,28 November 2018,22 February 2019,18 July 2018,08 October 2019,12 May 2020,28 March 2020,09 January 2020
• Plaintiff Counsel: Viviene Kaur Sandhu and Jasmine Dhanaraj (Clifford Law LLP)
• Defendant Counsel: Willy Tay Boon Chong (Willy Tay's Chambers)
• Subject Matter: Damages,Assessment
• Published date: 15 June 2021

Deputy Registrar Chua Wei Yuan: Brief facts

This is an assessment of damages (“AD”).

On 17 Dec 2010, the plaintiff (“P”) (a male navy serviceman, then aged 41) was injured in an accident. Both P and the defendant (“D”) were riding motorcycles. P was riding on the extreme left lane when D came from P’s right side, and attempted to turn left at a junction ahead of both of them. This resulted in P colliding into D’s left side, falling off, and suffering injuries for which he now sues.

P commenced proceedings in April 2011 and, in May 2011, interlocutory judgment (“IJ”) was entered for 100% of damages to be assessed.

At the AD be me, the following persons testified: P; P’s wife; LTC Alan Tan, P’s superior for the period 2011–2017; Dr Kannan Kaliyaperumal, P’s orthopaedic specialist; and Dr Chang Wei Chun, D’s orthopaedic specialist.

In closing, P claimed the following heads of damages. P’s and D’s final submissions, and my decision thereon, are as follows:

	Injury	P’s Submission	D’s Submission	Decision
General damages for pain and suffering
1.	Left ankle injuries: i. Comminuted fracture of left navicular bone with displacement and intra-articular step ii. Periarticular soft tissue swelling over left ankle iii. Tenderness, swelling over medial aspect of left ankle iv. Left foot post-injury scarring and sensory disturbance (permanent soft tissue scarring, muscle loss, sensory deficit, cosmetic deformity/discolouration)	45,000.00	20,000.00	48,000.00
v. Post-traumatic osteoarthritis to foot/talonavicular joint and (potentially) ankle	10,000.00
vi. Scarring and discolouration of left foot	10,000.00	8,000.00
2.	Complex regional pain syndrome (“CRPS”)	60,000.00	15,000.00
3.	Aggravation of pre-existing degeneration of L5S1 spine, and abnormal gait	8,000.00	–	5,000.00
4.	Left wrist injury/triangular fibrocartilage complex (“TFCC”) injury	7,000.00	–	2,000.00
5.	Small abrasions over left elbow	2,000.00	1,000.00	1,000.00
6.	Dysthymia	25,000.00	3,000.00	9,000.00
Medical/Transport-related losses
7.	Pre-AD Medical expenses	8,202.67	8,202.67	8,202.67
8.	Pre-AD Transport expenses	3,480.00	3,480.00	3,480.00
9.	Future medical expenses (“FME”):
i. Revision of fusion surgery	16,000.00	–	16,000.00
ii. Ankle surgery	9,000.00	–	–
iii. Orthopaedic/pain follow-up and medication:
a. Lifelong physiotherapy to left lower limb	7,800.00	468.00	2,212.32
b. Lifelong medical follow-up consultation	3,900.00	–	2,253.80
c. Lifelong cartilage supplements and painkillers	25,350.00	532.00	4,376.13
d. Desensitisation therapy	15,600.00	–	–
e. Pain management therapy	2,925.00	–	799.11
iv. Psychological treatment	566.85	566.85	566.85
v. Psychiatric treatment	963.00	–	–
Income-related losses
10.	Pre-AD loss of shipboard earnings	21,250.00	–	18,300.00
11.	Future loss of shipboard earnings	16,800.00	–	16,893.84
12.	Pre-AD loss of income	46,230.00	–	8,717.06
13.	Loss of earning capacity (“LEC”)	150,000.00	10,000.00	43,948.30
Property damage
14.	Cost of repairs	729.50	–	250.00
15.	Loss of use	30.00	30.00	30.00
Total	495,827.02	47,249.52	214,030.08

General damages for pain and suffering

As a general point, I will adjust the awards posited in the Guidelines upwards by approximately 15% to account for inflation in the 10 years since the Guidelines were published.

Left foot/ankle injuries

P seeks damages of $65,000.00 for pain and suffering for his left foot injury, comprising: $45,000.00 for the foot/ankle injury generally; $10,000.00 for post-traumatic osteoarthritis in the left foot and ankle; and $10,000.00 for permanent scarring/discolouration of the left foot.

D, on the other hand, submits that $20,000.00 is a fair and reasonable assessment.¹

I award P: $48,000.00 for the comminuted navicular fracture, (including actual foot post-traumatic osteoarthritis and the risk of ankle post-traumatic osteoarthritis); and $8,000.00 for the scarring.

Medical evidence

A broad account of P’s injuries

In relation to the foot injury, P claims he suffered the following: comminuted fracture of the left navicular bone with displacement and intra-articular step; periarticular soft tissue swelling over the left ankle; tenderness and swelling over medial aspect of the left foot; left foot post-injury scarring (with permanent soft tissue scarring, muscle loss, sensory deficit and cosmetic deformity); post-traumatic (osteo)arthritis of the talonavicular (“TN”) joint and left foot; and risk of post-traumatic osteoarthritis to the left ankle.

P presented to the emergency department with tenderness and swelling over the medial aspect of his left foot. An X-ray showed that P had a navicular fracture (which turned out to be comminuted). This would eventually lead to treatment which broadly included 7 surgeries by the time of the AD, medication/injections, and physiotherapy.

P’s first surgery was scheduled on 6 January 2011, or about 2 weeks post-accident. It involved an open reduction and internal fixation of the navicular fracture and a debridement of the callus, for which P was hospitalised 3 days. On 11 February 2011, or about 1 month later, P underwent a second surgery, a wound debridement and excision of the stitch sinus abscess, further to a superficial wound infection.

P’s fracture had healed² (ie, united)³ by mid-May 2011. However, in September 2011, P complained of persistent aching, difficulty running, and an irritable talonavicular joint.⁴ His permanent disability was assessed at 9%.

Through a CT scan in May 2012, P was found to have mild hallux valgus in his left big toe, with degenerative changes of the 1st metatarsophalangeal joint. Among the observations was a bony deformity of the navicular and a small bony defect of about 2mm at the lateral aspect of the navicular, extending to the articular surfaces. The TN joint had narrowed with irregularity of the articular surfaces, osteophytes and subchondral sclerosis, which the radiologist concluded was likely due to osteoarthritis of the TN joint, and might need further action.

In August 2012, P still complained of persistent pain, which Dr David Su—then one of his treating physicians—concluded was likely due to osteoarthritis of the TN joint. He recommended a removal of the implants and fusion of the joint. Even so, Dr Su thought that this would not completely remove P’s residual disability, and that P would have difficulty working due to restricted movement. P was, in early October 2012, excused prolong standing and walking for 6 months pending investigations as to the cause of his pain.⁵ (In April 2013, P was then excused restrictive footwear.)⁶

On 25 October 2012, P underwent his third surgery, a left foot hallus surgery to correct prominent medical eminence of the left big toe; and a removal of the navicular screws. On 1 December 2012, P underwent a fourth surgery for multiple sinus excision, wound debridement, and drainage of the abscess, further to a wound infection.

In early 2013, Dr Su ordered P to undergo physiotherapy.

In May 2013, P continued complaining of TN joint pain. The podiatrist found discomfort upon both static and dynamic weight bearing, which was exacerbated by uneven terrain and unsuitable footwear. There was also reduced sensory perception in the first 3 toes. The podiatrist suggested lifelong use of custom orthotics and a silicone bunion pad to stabilise the feet and manage the pain.

In August 2013, Dr Chang examined P, who reported chronic pain in his left foot, aggravated by carrying loads or standing/walking for over 1 hour. At this point in time, he was taking pain medication on and off. Dr Chang examined P to have a very stiff foot. P’s dorsiflexion was 0–10°/0–20°, plantar flexion was 0–25°/0–45°, with zero inversion and eversion (which should be 25° and 20° usually). P’s left foot had slightly reduced (ie, 4/5) power, with loss of sensation over the dorsal area of the 1st and 2nd toes. Dr Chang—who turned out to have the most optimistic opinion—thought that P might not be able to resume shipboard duties, and would have difficulty walking on uneven terrain. At this point, P started to complain of lower back pain, which (as I discuss later) I find to be secondary to the poor gait that the injury left P with.

Through 2014, P continued to complain of severe pain on the medial aspect of the left foot. This was thought to be secondary to neural damage or trauma. A repeat CT scan now showed both TN and cuneonavicular (“CN”) degenerative changes.⁷ By late 2014, P had sleep difficulties. The fusion surgery that had been contemplated was postponed to deal with P’s psychiatric issues.

In February 2015, P had his fifth surgery, a fusion of the TN and CN joints subsequent to developing arthritis of the TN joint. As the fusion went into non-union, P underwent a sixth surgery in July 2015 to repair the fusion with plates, screws and a bone graft.

P continued to report pain in 2016. He walked with a limp, and was unable to walk for more than 20 minutes without left midfoot and forefoot pain and swelling, or climb more than 5–6 steps without unbearable pain. He was also unable to squat fully or pivot on his left foot. P also experienced sudden, sharp, debilitating pains. The range of motion of P’s foot remained equally...