Shaw Linda Gillian v Chai Kang Wei Samuel

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 19 August 2009
• Neutral Citation: [2009] SGHC 187
• Plaintiff Counsel: P E Ashokan (KhattarWong)
• Published date: 26 August 2009
• Court: High Court (Singapore)
• Defendant Counsel: Anthony Wee (United Legal Alliance LLC)
• Subject Matter: Damages

19 August 2009 Judgment reserved.

Chan Seng Onn J:

Brief Facts

1 The plaintiff sustained severe multiple traumatic injury with residual disabilities as a result of a road traffic accident on 6 December 2003. After the accident, the plaintiff pursued a full time degree course in the University of South Australia and obtained an Honours Degree in Health Science. After graduation, the plaintiff was unable to cope with full-time work at ACHA Health Inc (“ACHA”) and obtained alternative part-time work in physiotherapy at PhysiOne instead.

2 Interlocutory judgment was entered in favour of the plaintiff. At the hearing for the assessment of damages, the plaintiff was awarded, inter alia, (a) S$135,000.00 as general damages for pain and suffering and loss of amenities; (b) A$209,078.66 for pre-trial loss of earnings; (c) A$305,715.04 for loss of future earnings; (d) A$15,000.00 for loss of earning capacity; (e) A$49,346.70 for cost of future medical expenses; and (f) A$91,804.99 for loss of annual leave. The plaintiff appealed against the quantum awarded for (a) to (e) and sought further relief for transport expenses in Singapore and Australia and expenses incurred by her parents and relatives during her recovery. The defendant sought to set aside the award for loss of future earnings, and appealed against the quantum awarded for (b), (d) and (f).

General Damages

Pain, suffering and loss of amenities

3 After careful evaluation of the evidence, I increased the damages for pain, suffering and loss of amenities by S$65,000 to a total of S$200,000 for the reasons stated below. For clarity, I had considered and included the damages for future pain and suffering arising from future medical treatment and knee replacement surgery under this same head of general damages. This is separate from the future cost of medical treatment and knee replacement surgery.

Head Injury

4 The Assistant Registrar (“AR”) adopted a component approach under structural, psychological and cognitive domains in the assessment of the damages under the above head of claim. I agree with that approach.

(1) Structural head damage

5 In the award for structural head damage, the AR found that the plaintiff had sustained a fracture of the base of skull, traumatic brain injury (“TBI”), a right parietal scalp haematoma and a 3 cm long indentation on the right side of her head, and ordered a composite sum of S$29,000.

6 Broadly, I agree that the above injuries have been classified correctly under the structural domain.

7 The plaintiff sought a much higher composite award of S$108,000 claiming S$25,000 for base of skull fracture, S$75,000 for TBI, and a further S$4,000 each for right parietal scalp haematoma and right head indentation respectively.

8 In arriving at the proper award under this claim, I have given due consideration to the fact that the severe TBI sustained by the plaintiff did result in a total loss of consciousness with a GCS score of 3/15 (which I understand is the lowest possible). It was indeed so severe that she was rendered unable to sustain her own breathing and required life-saving emergency intubation and she had to rely on external ventilation from 6 December 2003 to 13 December 2003 to stay alive. She suffered traumatic subdural and subarachnoid haemorrhage, developed such significant cerebral oedema as to require invasive monitoring of her intracranial pressure.

9 In my view, a higher award should be given in the light of the extensive structural head damage and I therefore raised the award to S$54,000.

(2) Psychological damage

10 In the award for psychological damage, the AR found that the plaintiff had suffered depression, emotional lability and amnesia and awarded a composite sum of S$10,000.

11 Again, I agree that the above injuries have been correctly classified under the psychological domain. The plaintiff sought to increase the composite award to S$40,000.00.

12 In arriving at the proper quantum under this head, special consideration was given to the psychologist’s evidence that the plaintiff was still suffering from depression and this was further complicated by denial 5.5 years after the accident. I accept the psychologist’s testimony that denial can exist in depressed patients as a coping strategy and its existence makes further psychological treatment difficult. I therefore find that the plaintiff’s non-compliance with psychological therapy as a result of her denial of her depression cannot be taken against her. Further consideration was given to the expert’s assessment that her depressive symptoms would likely continue to have a significant impact on her daily life (see p1570 ABOD).

13 In view of the prolonged suffering and the high likelihood that this depression would continue into the future, I shall increase the award to S$25,000.

(3) Cognitive damage

14 In the award for cognitive damage, the AR found that the plaintiff had recovered well from her injuries. Any residual disability in this regard is likely to be mild and is unlikely to extensively affect all or even most of her cognitive abilities. After the injury, she further completed an honours degree in the university, albeit with some difficulty. I accept the psychologist’s finding that there remain residual cognitive difficulties, with moderate impairment in information processing and mild impairments in verbal abstract reasoning, new learning, memory and verbal fluency. However, it is also the plaintiff’s own expert witness’s assessment that her cognitive impairments do not appear to have a significant impact on her daily life. Finally, due regard was also given to the expert’s evidence that it was in fact her depressive symptoms, and not cognitive impairments that would continue to have a significant impact on her daily life.

15 Looking at the totality of the evidence before me, I am of the view that the quantum of the award under cognitive damage should reflect its relative contribution to the impact on her daily life. This being less than that of depression, I find the AR’s award of S$10,000 reasonable and shall not disturb it.

Laxity of right anterior cruciate ligament and meniscal injury

16 I agree with the AR’s finding that the injuries to the right anterior cruciate ligament (“ACL”) and meniscus had in fact resulted from the accident. In her appeal, the plaintiff sought to increase the AR’s award of S$5,000 to S$20,000 by submitting that the injuries were serious and would thus affect the stability of the right knee joint. Anatomically, the stability of the knee joint is contributed by the strength of the muscles around the knee (chief of which include the quadriceps femoris anteriorly and the hamstring muscles posteriorly), its associated ligaments (the ACL, posterior cruciate ligament and the medial and lateral collateral ligaments) and the two menisci. Dr A Pohl’s evidence was that the plaintiff had sustained quadriceps wasting, laxity of the anterior cruciate ligament and an associated meniscal injury. Functionally, the plaintiff had also sustained a loss of ten degrees of flexion in that knee. I accept Dr Pohl’s evidence that the ACL injury and its associated meniscal injury would predispose the plaintiff to early or accelerated degeneration of the right knee, which may necessitate total knee replacement and even a further revision surgery in future. In the presence of muscular (i.e. quadriceps wasting), ligamentous (i.e. ACL laxity), and meniscal injury, it would not be unreasonable to accept that the stability of the right knee joint would be affected. This is consistent with the ample documentation of residual functional impairment and weakness of the right lower limb. I accept Dr Pohl’s evidence on cross-examination that there was in fact instability to the right knee as a result of the injury. The defence has also not produced any evidence to the contrary.

17 On the other hand, I must emphasise that Dr Pohl had only pointed to a laxity but not an overt tear of the right ACL. Dr Pohl had also not recommended that the patient undergo any procedures to reconstruct the damaged ligament. Furthermore, his own assessment of the other ligaments that support and contribute to the stability of the right knee joint, namely the posterior cruciate, medial and lateral collateral ligaments was that these were all stable and strong. Moreover, Dr Pohl’s evidence on cross examination was that an operation to excise the torn meniscus (i.e. meniscectomy) would in fact help to increase the stability of the right knee joint. The plaintiff had already been separately awarded the full sum for such treatment.

18 I thus arrived at my conclusion that although there was instability resulting from the accident, such instability is not likely to be so extensive that it would warrant an award to the full quantum that was submitted by the plaintiff. However, as the award by the AR was on the low side, I shall increase the award to S$10,000.

Foot injuries

19 The plaintiff suffered a severe degloving injury to the right foot and the right ankle (see p369 PCBD). This was further complicated by the development of Pseudomonas and methicillin resistant Staphylococcus aureus wound infections of her right foot wound which necessitated prolonged treatment with intravenous antibiotics, repeated operations for wound debridement, application and re-applications of Vacuum Assisted Closure suction dressing. As a result of the injury, she required a split skin graft of tissue harvested from her right thigh for closure of a tissue defect in the right foot. The plaintiff further sustained a 4x15 cm scar around the sides and bottom of the right foot. She further developed muscle wasting in her right foot and mild flexion contractures of four of the toes in her right foot.

20 The AR awarded S$12,000.00 for the pain and suffering caused by the degloving injury and the scar. This award includes pain and suffering caused by the initial injury and its associated treatment. The...