Teo Sing Keng and Another v Sim Ban Kiat

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeGoh Joon Seng J
Judgment Date18 Feb 1994
Neutral Citation[1994] SGCA 20
Citation[1994] SGCA 20
SubjectAppropriate rate and period of interest,Pain, suffering and loss of amenities,Interest,Measure of damages,Personal injuries cases,Loss of earning capacity,Distinct from loss of earnings,Loss of earnings,Whether interest to be awarded,Damages,Loss of earnings and agreed special damages,Whether court should deduct income tax payable by plaintiff when assessing damages
Defendant CounselCharles Mendis (Charles N Mendis & Pnrs)
Plaintiff CounselNK Pillai (Harry Elias & Pnrs)
Docket NumberCivil Appeal No 21 of 1993
Publication Date29 Dec 2003

[Please note that this case has not been edited in accordance with current Singapore Law Reports house style.]

Goh Joon Seng J (delivering the judgment of the court):

1 In this appeal the appellants who were the defendants in the court below appeal against the quantum of pre-trial and post-trial loss of earnings and interest awarded by the learned judicial commissioner Mr KS Rajah. In the court below damages were awarded to the respondent in respect of personal injuries suffered by him in an accident caused by the negligence of the first appellant as the servant in the course of employment of the second appellant. [See [1993] 2 SLR 155.] At the trial, no issue arose as to liability, the parties having agreed that the appellants would assume liability to the extent of 90%. The parties also agreed to a sum of $85,000 in respect of general damages for pain and suffering and a further sum of $8,227.25 as special damages, excluding pre-trial loss of earnings. In the circumstances, the only issues in dispute before the learned judicial commissioner related to the respondent’s claim for pre-trial and post-trial loss of earnings.

The facts

2 On 13 January 1990 at about 11.30pm, the respondent was riding a motorcycle No FD 6391 P along New Bridge Road from the direction of Jalan Bukit Merah and proceeding in the direction of Eu Tong Sen Street when the said motor cycle was involved in a collision with motor bus SBS 4747D. The said motor bus driven by the first appellant had come from the opposite direction and made a right turn across the path of the said motor cycle thereby causing the said collision. Following the said collision the plaintiff was admitted to the Singapore General Hospital where he was noted to have sustained the following injuries:

(1) cervical cord contusion with sensory level C5 tetraparesis and a neurogenic bladder and bowel;

(2) fracture of the right first rib;

(3) open fracture of the right tibia and fibula — where an open reduction and fixation was done;

(4) laceration of the liver — laparatomy drainage and suture was done;

(5) stable closed head injury with cerebral oedema — treated conservatively.

3 On 6 March 1990, the respondent was transferred to the spinal rehabilitation department at Tan Tock Seng Hospital. In his report dated 4 October 1990, Dr EB Menon, the registrar of the department of rehabilitation medicine at Tan Tock Seng Hospital, stated:

He was subsequently transferred to our spinal rehabilitation department TTSH on 6 March 1990. Here he was taught walking exercises, feeding, dressing, and management of activities of daily living. He was bladder and bowel trained and taught to empty and void four hourly with tapping and compression.

He progressively improved, learnt to be independent with minimal assistance in self-care. He was able to ambulate short distances with the help of two quad sticks but requires assistance in walking long distances and climbing stairs.

He is permanently disabled, still a tetraparetic with power in his limbs grade 4, proximal stronger than distal and the weakest being his hands. He is unable to grasp, write clearly or support himself. He has significant muscle spasms and will require medication for at least two years. He will not be able to work presently and is dependent upon his parents for assistance in walking, dressing and in all activities of daily living. His bladder and bowel dysfunction are permanent and will require medication to void and defaecate permanently.

He was discharged on 11 August 1990 and is still on follow-up at our spinal clinic.

4 Dr ES Tan, physician and head of rehabilitation medicine at Tan Tock Seng Hospital, gave evidence for the respondent at the trial. Dr Tan testified that he had examined the respondent on 12 June 1990, 26 December 1990 and 1 July 1992. He found that the small muscles of the respondent’s hands were still paralysed and wasted, resulting in a functionless pair of hands which could not grip. The respondent also had a drop foot in his right foot due to paralysis of his dorsiflexors and was only able to walk short distances at a slow pace with the aid of elbow crutches. Dr Tan was of the opinion that the respondent would not be able to sustain a long walk, for example, 1km. The respondent’s paralysis is from the waist downwards, both his lower limbs are spastic, one ankle is without any power and he walks with a calliper to prevent the right foot from dropping down. He also noted that the nerve supply to the respondent’s bladder and bowel had been injured. He said that the respondent could not control a full bladder but had been trained to pass urine every three to four hours to prevent seeping when full. Although the respondent had responded well to earlier treatment, Dr Tan was of the view that there was not likely to be any further significant improvement to the respondent’s condition. He accordingly concluded that the respondent was left with the following permanent residual disabilities:

(1) neurogenic bladder and bowel;

(2) paralysed, functionless hands;

(3) drop foot affecting his right foot;

(4) spastic lower limbs which impede walking normally without the aid of bilateral elbow crutches; and

(5) dexterity with his bare hands is not possible for a pincer grip.

5 In so far as the respondent’s employment prospects are concerned, Dr Tan was of the view that the respondent was ‘not totally unemployable’ and that, with a hand splint, the respondent could work as a lift attendant or telephone operator. He said that training for the respondent could be done at Centre Biz-Link in Jalan Eunos, a centre for training young handicapped persons. However, prior to admission to the centre, the respondent would be subjected to an assessment for suitability to undergo the necessary training program. If accepted, the plaintiff would have to undergo training for a period of time and thereafter be assessed as to whether he was suitable for work. There was no guarantee that the respondent would be employed after the training program. Costs of training would have to be incurred.

6 The respondent testified that he left school some time in 1979 at the age of 15 or 16 years and started work as an odd job labourer, later becoming a painter and welder. His earnings ranged from $1,200 to $1,900 a month. There were periods when he earned only $500 to $700 a month and some periods when he was unemployed. He said that at the time of the accident he was working as a daily rated welding subcontractor with Boon Tong Ship Repairs, earning an average of $45 per day. There were times when he earned between $1,800 and $1,900 a month but it was with overtime. However, he admitted he ‘seldom’ earned this amount. The respondent did not work on Sundays, rainy days and occasional off days, for which he received no pay. The respondent testified that prior to the accident, although he had a bank pass book, he did not pay his monthly earnings into his bank account. After making contributions towards household expenses, he spent the balance of his earnings and did not accumulate any savings. He also testified that he made CPF contributions but not much, and did not pay any income tax. Hence, his inability to adduce any bank, CPF or income tax statements evidencing his monthly earnings.

7 Mr Tan Kim Hong, a manager of Boon Tong Ship Repairs at the time the respondent was working there, gave evidence on the respondent’s earnings at the time of the accident. He confirmed that the respondent was a self-employed welding sub-contractor and was not paid CPF owing to his status as a subcontractor. His firm issued a letter dated 11 February 1991 stating that the respondent’s average earnings while working with Boon Tong Ship Repairs was $1,350 per month. He said that this was an approximate figure calculated on the basis of the number of metres of welding works completed by the respondent and the amount payable per metre. Depending on the nature of the welding work, the respondent was paid either $1, $2 or $3 per metre of welding. His experience indicated that daily-rated welders earned between $30 and $50 a day. Qualified welders with the necessary experience could earn about $100 per day. This aspect of the income of the respondent was subjected to detailed cross-examination, reference being made to the respondent’s failure to produce any CPF statement, bank pass book or income tax statements, from which his earnings could be deduced.

8 At the hearing in the court below, the issues were:

(1) whether deduction for income tax should be made from the damages due to the respondent for both his pre-trial and post-trial loss of earnings;

(2) whether the respondent had failed to mitigate his loss;

(3) whether there was sufficient evidence to substantiate the respondent’s claim for pre-trial loss of earnings at $1,200 per month; and

(4) the proper multiplicand for the respondent’s claim for loss of future earnings, the multiplier having been agreed at 15.

The decision below

9 With respect to the income tax issue, the learned judicial commissioner noted that the House of Lords had decided in British Transport Commission v Gourley that, in assessing damages in respect of loss of earnings, an appropriate deduction should be made for the income tax that the plaintiff would have had to pay on the earnings which his injuries had deprived him of.

10 KS Rajah JC, however, went on to note that both the Supreme Court of Canada, in The Queen in the Right of the Province of Ontario v Jennings, and the High Court of Australia, in Atlas Tiles Ltd v Briers, rejected the rule in Gourley’s case.1 After reviewing the reasoning in each of these cases, he referred to various Malaysian decisions and observed that he did not have the benefit of arguments by counsel on whether the rule in Gourley’s case1 applied in Singapore notwithstanding the provisions of the Income Tax Act (Cap 134). The learned judicial commissioner, accordingly, concluded as follows:

I...

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