Rahman Lutfar v Scanpile Constructors Pte Ltd and another

• Jurisdiction: Singapore
• Judge: Aedit Abdullah JC
• Judgment Date: 17 March 2016
• Neutral Citation: [2016] SGHC 41
• Court: High Court (Singapore)
• Docket Number: Suit No 776 of 2013
• Year: 2016
• Published date: 11 May 2016
• Hearing Date: 26 August 2015,09 November 2015,27 August 2015,25 August 2015
• Plaintiff Counsel: Bhaskaran Shamkumar (APAC Law Corporation)
• Defendant Counsel: Anparasan S/O Kamachi, Lin Hui Yin, Sharon and Wong Jing Ying Audrey (Khattarwong LLP)
• Citation: [2016] SGHC 41

Aedit Abdullah JC: Introduction

This was a trial on quantum of damages. In the present case, the plaintiff, Mr Rahman Lutfar (“the Plaintiff”) was a Bangladeshi national who worked in Singapore at the time of the accident. He was employed by the 1st defendant, Scanpile Constructors Pte Ltd (“the 1st Defendant”), a subcontractor of a road works project in which the 2nd defendant, Or Kim Peow Contractors (Private) Limited (“the 2nd Defendant”) was the main contractor (collectively “the Defendants”). The Plaintiff had been run over by a heavy piece of machinery while working at the project site of the Defendants. As a result of the accident, the Plaintiff’s right leg had to be amputated, leaving a stump around where his right knee was. His left leg was crushed as well leaving him with various injuries on that limb. The Plaintiff sued his employer, the 1st Defendant as well as the main contractor, the 2nd Defendant. Interlocutory judgment was entered against the Defendants by consent at 95%. The quantum of damages claimed by the Plaintiff was about $1.06 million but the Defendants argued that only about $137,000 should be awarded. After considering the evidence as to the injuries suffered, including the loss of the leg, the pain the Plaintiff continued to suffer, and the difficulties faced by him back in Bangladesh because of those injuries and pain, I awarded the Plaintiff $426,437.90. The Defendants, being dissatisfied with my decision, have appealed.

Background

The Plaintiff was employed by the 1st Defendant, who was the subcontractor for a road widening project at old Chua Chu Kang Road. He was earning about $1,100 per month. The 2nd Defendant was the main contractor of the project. It would appear that the Plaintiff in his work would be directed by either the 1st or 2nd Defendant.

In April 2012, when he was 36 years old, the Plaintiff got into an accident and suffered injuries at the work site. On the day of the incident, the Plaintiff had been carrying out his work as a signalman performing lifting work for either the 1st or 2nd Defendant. The Plaintiff and his co-workers were assigned to carry out a lifting operation to remove a steel casing of about 15m from a stationary hydraulic boring rig. Upon completing the lifting operation, the Plaintiff stood behind the stationary boring rig. Sometime later, the stationary boring rig was moved to make room for a truck. At this point, the tracks of the rig hit and ran over the Plaintiff, crushing his legs.

Due to the injuries suffered, the Plaintiff was admitted into the National University of Singapore Hospital (“NUH”) for about 2 months. He was subsequently admitted into West Point Hospital for care and treatment. His injuries were reviewed at NUH in July, August and October 2012. He was also seen at Tan Tock Seng Hospital for rehabilitation. Approximately 8 months after the accident, the Plaintiff consulted Dr Tan Mak Yong (“Dr MY Tan”) and Dr Lim Boon Leong (“Dr Lim”) for the preparation of specialist medical reports.

On 28 December 2012, the Plaintiff was sent back to Bangladesh. A sum of $25,000 was paid as interim payment to the Plaintiff on 20 February 2014.

The Plaintiff’s Case

The Plaintiff claimed for various injuries and losses following on from the accident, covering: the various injuries he suffered, especially of course the amputation of the right leg, and injuries to the left leg; depression; loss of various amenities, including prayers, additional marriage prospects, and conjugal relations; loss of earnings, both pre-trial and post-trial; future medical expenses, including modification of his home and an orthopaedic bed; transportation costs; and other additional expenses in Bangladesh relating to the injury.

In all, the Plaintiff claimed, at 95% liability, a sum of about $1.06 million, excluding legal costs.

The Plaintiff’s medical witnesses included rehabilitative medicine physicians, an orthopaedic expert, and psychiatrists. Their evidence was based on his condition shortly after the accident, and more recently ahead of the trial. The Plaintiff argued that the medical evidence showed that he suffered from various injuries and pain, and that much of this would continue to the future.

The Defendants’ Case

The Defendants argued in essence that while the Plaintiff did suffer injuries to his legs, the aftermath was not as bad as the Plaintiff had made it out to be. They argued that his claim for pain and discomfort arising from the injuries was not supported by the Defendants’ medical evidence, which was to be preferred and pointed out that the Plaintiff’s own medical evidence did not support his contentions. Examples of this included the medical evidence in respect of osteoarthritis, the use of a prosthetic for his right leg, depression and scarring.

The Defendants also argued that the Plaintiff did not adduce sufficient evidence to support his claim for various losses, including loss of marriage prospects, nursing, reconstruction of the house, and treatment of and support for the various injuries suffered, especially in Bangladesh. They also submitted that the Plaintiff’s loss of earnings both in Singapore and in Bangladesh was not as great as he made them out to be. Thus, the evidence showed that the award should be more modest than he claimed.

The Decision

I concluded that a number of the claims made by the Plaintiff were indeed not substantiated sufficiently and thus were not appropriate for an award. As for the amounts for claims that were substantiated, a number of these were only made out to a lesser extent, considering both the evidence and case law. But in respect of the medical evidence as to the continued and future effect of the injuries suffered, I generally preferred the evidence of the Plaintiff’s medical witnesses. Having considered both the case authorities and the facts in this case, several adjustments were made to the amounts claimed. In most instances, the amounts awarded matched neither the Plaintiff’s nor Defendants’ quantification.

Analysis Difficulties in the case

The evidence adduced by the Plaintiff was wanting in several respects. Firstly, there was little adduced about various costs incurred or to be incurred in Bangladesh: there were no quotations from suppliers of goods or services for instance, or receipts for expenses incurred in the meantime. On several occasions, this meant that I could not give any award at all. However, on other occasions, while the evidence was somewhat lacking, an award was still made bearing in mind the probabilities of the situation, particularly where I found that injuries had indeed been suffered. In those instances, the Plaintiff was entitled to damages to address these injuries, including treatment and other compensation, such as costs of renovation of the home. The difficulty did still remain that there was no clear indicator of the amount that should be awarded. As I had found that there was loss suffered, I quantified it as best as I could, taking guidance from decided cases, what evidence there was about the likely costs in Singapore and whatever else I could draw on. In respect of these claims, the lack of evidence was not such that I could find that no award at all or only a nominal award should be made as there was some evidence of loss and its extent. Ultimately, in some instances a broad brush had to be applied. To my mind, this approach adhered with that in personal injury cases generally: the claim was proven, and assessment of quantification proceeded as best as could be done. In other words, in several instances, despite the dearth of evidence, I found that on the balance of probabilities, some loss arose and compensation should be made. The Defendants relied on Jet Holdings and Ors v Cooper Cameron (Singapore) Pte Ltd and other appeals [2006] 3 SLR(R) 769 (“Jet Holdings”) at [21], for the proposition that only nominal damages would be awarded where damages are not proven. That proposition does not preclude the Court finding that on what was before it, the evidence thin as it is, may sufficiently indicate that the harm suffered could be quantified as some amount beyond a nominal sum.

The other issue concerned the relative cost of items in Bangladesh as compared to Singapore. There was, as I had noted above, lack of evidence adduced by the Plaintiff about the cost of items or services in Bangladesh. On occasion, the Plaintiff referred to costs in Singapore, essentially relying on the point that this was the best that could be adduced. The Defendants however contended that there should be a discount as costs in Bangladesh were generally lower. In general, I accepted the Defendants’ argument that costs would be lower in Bangladesh. However, I did not find that such a discount to Singapore prices should be applied across the board. In some instances, I was not persuaded that the cost in Bangladesh would indeed be lower. In these instances, I took the Singapore costs as the cost to be awarded.

There was also an issue with the division of heads between general and special damages. The general damages in this case are the claims for which the damages remain at large, as exact quantification would not be possible. This category encompasses pecuniary damages, primarily future earning loses, and non-pecuniary losses, consisting of loss of amenities as well as pain and suffering. Special damages would cover the pecuniary losses actually suffered, or expenses that had been incurred. There may be some authorities that seem to suggest that strict proof is applied to special damages: see Wee Sia Tian v Long Thik Boon [1996] SLR(R) 420 at [15]. This is not necessarily so. Although the Plaintiff as the claimant would have to bear the legal burden of proving his case, this did not translate into any greater obligation in respect of special damages. The real distinction between special and general damages is that...