Sharma Gautam v Soh Cheow Tiong

• Jurisdiction: Singapore
• Judge: Tan May Tee
• Judgment Date: 25 June 2018
• Neutral Citation: [2018] SGDC 175
• Court: District Court (Singapore)
• Hearing Date: 25 June 2018
• Docket Number: District Court Suit No. 2211 of 2014, Registrar’s Appeal No. 4 of 2017
• Plaintiff Counsel: Mr Havinderjit Singh Bath (Hoh Law Corporation)
• Defendant Counsel: Mr Sham Chee Keat (Ramdas & Wong)
• Subject Matter: Tort,Damages,Assessment,Personal injuries
• Published date: 06 November 2018

District Judge Tan May Tee: Introduction

This is the Plaintiff’s appeal against the awards made by a deputy registrar (“DR”) in the assessment of damages arising from injuries which he sustained in a road traffic accident.

Background

The Plaintiff is an Indian national who came to Singapore in 2012 to work. He was issued an S-Pass for employment as a logistics officer for a company called Transnational Supply Chain Logistics Pte Ltd carrying out the duties of essentially a despatch rider. On 13 September 2013, the Plaintiff was injured in the course of work when the motorcycle that he was riding on was collided into by the Defendant who was driving his motor taxi out from a car park lot.

The Plaintiff was conveyed to the Singapore General Hospital (“SGH”) where he underwent various procedures described as a right knee arthrotomy, a washout, removal of foreign body and debridement. He was discharged on 15 September 2013 and followed up subsequently at SGH’s specialist outpatient clinic. Although he went back to work after the expiry of his medical leave, he continued to experience pain and discomfort. He sought further medical treatment and on 30 January 2015, further surgery was performed on his right knee in the form of a double bundle anterior cruciate ligament (“ACL”) reconstruction as well as a partial meniscectomy. He did not return to work as a logistics officer thereafter as he was on continuous medical leave from 30 January 2015. His employer terminated his employment in July 2015 on account of his medical condition.

The Plaintiff commenced proceedings on 22 July 2014. Interlocutory judgment was entered by consent in the Plaintiff’s favour at 80% on 12 November 2014 with damages to be assessed. The assessment of damages before the DR took place over several tranches of hearing in 2016 during which the court heard the testimonies of five witnesses, namely the Plaintiff himself and four medical specialists including one called by the insurer for the Defendant.

The DR’s decision

The DR delivered her decision on 10 January 2017 as follows:

General damages
(1)	Tear of the right knee anterior cruciate ligament (ACL) and medial meniscus	$15,000.00
(2)	Partially cut (20%) of the right patellar tendon	$3,000.00
(3)	Right knee swelling	$1,000.00
(4)	Wasting in right quadriceps and calf muscles	$2,000.00
(5)	Multiple scars and abrasions	$2,000.00
(6)	Loss of future earnings	No award
(7)	Loss of earning capacity	No award
(8)	Future medical expenses	$700.00
Special Damages
(9)	Medical expenses (No award for the sums of $4,928.10 and $16,402.31 which had been paid by the Plaintiff’s former employer.)	$2,505.04 (agreed)
(10)	Transport expenses	$86.15
(11)	Pre-trial loss of earnings (Calculated based on Plaintiff’s average monthly income in 2014 at $3,063.32 x 4 months)	$12,253.28
(12)	Cost of repairs to motorcycle	$650.00
(13)	Loss of use	$60.00
Total damages (on 100% basis)	$39,254.47

At 80% liability, the Plaintiff obtained final judgment in the sum of $31,403.58 with interest at 5.33% p.a. from the date of the writ to date of judgment with costs to be taxed if not agreed.

The Plaintiff’s appeal

The Plaintiff, being dissatisfied with the DR’s decision, filed an appeal against all the awards enumerated in [5] above save for the cost of repairs to his motorcycle of $650.00. A summary of the awards contended for by the Plaintiff is tabulated below:

General damages
	Head of claim	DR’s award	Plaintiff’s contention
(1)	Tear of the right knee anterior cruciate ligament (ACL) and medial meniscus	$15,000.00	$20,000.00
(2)	Partially cut (20%) of the right patellar tendon	$3,000.00	$5,000.00
(3)	Right knee swelling	$1,000.00	$2,000.00
(4)	Wasting in right quadriceps and calf muscles	$2,000.00	$4,000.00
(5)	Multiple scars and abrasions	$2,000.00	$4,000.00
(6)	Loss of future earnings	No award	$552,780.00
(7)	Loss of earning capacity	No award	(no separate claim)
(8)	Future medical expenses	$700.00	$10,000.00
Special Damages
	Head of claim
(9)	Medical expenses	$2,505.04 (agreed)	$23,911.05
(10)	Transport expenses	$86.15	$200.00
(11)	Pre-trial loss of earnings	$12,253.28	$63,988.06
(12)	Loss of use	$60.00	$140.00
Total	$39,254.47	$686,019.11

As the parties had not signed any memorandum under s 23 State Courts Act, counsel for the Plaintiff informed me that any award made by the Court would be limited to the District Court limit of $250,000.00 as laid down in Keppel Singmarine Dockyard Pte Ltd v Ng Chan Teng [2008] SGCA 12.

Principles for review of a DR’s decision by a judge in chambers

Although an appeal operates as a rehearing, in dealing with the awards and findings made by the DR, I am mindful of the Court of Appeal decision in Tan Boon Heng v Lau Pang Cheng David [2013] 4 SLR 718 which sets out the principles for the review by a judge in chambers of a registrar’s decision on an assessment of damages, namely, the judge’s discretion is unfettered by the exercise of the registrar’s discretion below, although due weight should be given to the latter’s decision. A registrar’s findings of fact based solely on oral evidence may only be overturned if those findings were plainly wrong or against the weight of the evidence. Where the registrar’s findings of fact are based on affidavit and documentary evidence, the judge is entitled to make his own findings on the admitted documentary and affidavit evidence as well as the registrar’s notes of hearing. Where the registrar’s findings of fact are based partly on oral evidence and partly on affidavit and documentary evidence, the judge may overturn the findings only where there was sufficient evidence to show that, more likely than not, the findings were not warranted on the evidence

Issues

Based on the contentions of the Plaintiff on appeal, the issues which I had to decide were: What is the appropriate award for the injuries sustained by the Plaintiff, namely: tear of his right knee anterior cruciate ligament (ACL) and medial meniscus, partially cut (20%) right patellar tendon. right knee swelling, wasting in right quadriceps and calf muscles, and multiple scars and abrasions. Is the Plaintiff entitled to any loss of future earnings and/or loss of earning capacity? Is the Plaintiff entitled to any future medical expenses, and if so, what is the amount to be awarded? What is the amount of the loss of earnings that the Plaintiff has proven up to the assessment hearing (i.e. pre-trial loss of earnings)? What is the amount of medical expenses incurred by the Plaintiff that should be awarded? What is the amount of transport expenses incurred by the Plaintiff that should be awarded? What is the amount that should be awarded to the Plaintiff for the loss of use of his motorcycle that was damaged as a result of the Defendant’s negligence?

A primary issue in the assessment hearing was whether the injury sustained to the ACL and the medial meniscus of the Plaintiff’s right knee was a result of the accident caused by the Defendant. The DR had found on the evidence adduced that causation for this injury was established and that finding has not been challenged by the Defendant. I would add that the DR’s analysis on this issue is sound and I am in absolute agreement with her finding.

What is the appropriate award to the Plaintiff for: (i) tear of right knee anterior cruciate ligament (ACL) and medial meniscus

The DR had awarded $15,000 following the case of Tan Kok Hian v Tian Seow Liang DC Suit No 971 of 1998; RA Nos 300243 of 1999 and 300249 of 1999, (“Tan Kok Hian”) which concerned an injury of this type. In Tan Kok Hian, a global award of $15,000 was made for a 50% tear of the ACL and a torn lateral meniscus.

The Plaintiff contended that the award should be increased to $20,000 on the basis that Tan Kok Hian is antiquated being a decision made in 1999. A global award of $15,000 was made in Tan Kok Hian for a 50% tear of the ACL and a torn lateral meniscus. Instead, the more appropriate case to follow is Pandian Marimuthu v Guan Leong Construction Pte Ltd [2002] SGDC 189 (“Pandian Marimuthu”) where the Court had awarded $20,000 for a complete tear of the ACL and $10,000 for a tear of the lateral and medial meniscus with a discount for the overlap.

The Defendant submitted that the DR’s award of $15,000 should not be disturbed and also disputed that there should be any revision upwards to take into account inflation.

Having compared the Plaintiff’s injuries to those documented in Tan Kok Hian and Pandian Marimuthu, it appears to me that the Plaintiff had suffered a more serious injury which merited an increase of the DR’s award of $15,000. The Plaintiff was found to have a tear to the ACL in his right knee as well as a tear of the medial meniscus. He had to undergo surgical procedures known as a right knee double bundle reconstruction and a partial meniscectomy.

When he was seen by Dr James Lee about 6 months after the surgery, the Plaintiff was found to have a restricted range of movement in the flexion of his right knee of 110o as compared to 140o on the left¹. The patellae were tilted laterally and the patella grinding test was positive. There was right knee swelling and wasting of the right quadriceps and calf muscles.

In contrast, the plaintiff in Tan Kok Hian² did not have a reconstruction but only a trimming of his ACL and a partial lateral meniscectomy. This could...