Singapore Airlines Ltd v Tan Shwu Leng and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 16 October 2001
• Neutral Citation: [2001] SGCA 69
• Citation: [2001] SGCA 69
• Defendant Counsel: Vangadasalam Ramakrishnan (V Ramakrishnan & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: Ashok Kumar (Allen & Gledhill),Tan Shwu Leng and another appeal
• Date: 16 October 2001
• Docket Number: Civil Appeals Nos 600016 and
• Court: Court of Appeal (Singapore)
• Subject Matter: Costs,Role and approach of judge in hearing appeal,Civil Procedure,Whether burden discharged by appellants,Appeal from registrar to High Court,Appeal from registrar to judge-in-chambers,Respondent's pre-trial loss of earnings,Circumstances warranting court's interference,Appeals,Damages,Object of Rules of Court O 22A,Mitigation,O 22A rr 9(3) & 12 Rules of Court,Nature of appeal,Order for costs,O 56 r 1 Rules of Court,Burden of proof,Apellants' offer to settle,Respondent's award of damages marginally higher than offer,Applicability of Powell Duffryn principles,Discretion of court,Whether such appeal an appeal in the true sense

(delivering the grounds of judgment of the court): On 25 November 1994, the plaintiff, Ms Tan Shwu Leng (`Ms Tan`) was serving on board a Singapore Airlines (`SIA`) flight from Singapore to Dhaka as a leading stewardess, when a mid-air incident arose which caused her to suffer a fracture in her left humerus. Due to this fracture she could not be certified fit to carry on her duties as a leading stewardess. She had to be grounded and given other duties.

On 3 November 1997 Ms Tan commenced Civil Suit 1906/97 against SIA claiming damages for negligence, and in the alternative, for breach of statutory duty. Later Airbus Industrie, the manufacturers of the aircraft, were joined as a co-defendant. The defendants admitted liability and, on 19 November 1999, interlocutory judgment was entered against them with damages to be assessed.

An assessment was carried out by the assistant registrar who on 28 September 2000 awarded to Ms Tan the sum of $316,025.81 made up as follows:

(1)	Pain and suffering	$	13,000.00
(2)	Pre-trial loss of earnings	$	77,491.60
(3)	Loss of future earnings	$	225,534.21
Total	$	316,025.81

On this sum, the usual interest was also awarded in respect of the first two items, making a grand total of $331,855.14.

As this sum awarded was less than an offer of $350,000 which the defendants made on 24 January 2000 to settle Ms Tan`s claim under O 22A of the Rules of Court, the assistant registrar ordered that Ms Tan would only be entitled to costs up to the date of the offer and Ms Tan would have to bear the costs of the defendants on the indemnity basis incurred after the offer was made.

Ms Tan appealed against the decision of the assistant registrar. Woo Bih Li JC heard the appeal and he increased the award for loss of pre-trial earnings by adding two sums, $2,736.31 (being excessive deduction for income tax) and $14,700 (this will be elaborated later), back into the computation and those two sums would bear interest at 3%p[thinsp]a from the date of the accident to the date of the assessment of damages as the assistant registrar had ordered in respect of pre-trial loss of earnings. In the light of these variations made by the judge, the total award granted to Ms Tan, including interest, amounted to $352,279.33.

The offer made by the defendants was $350,000. Taking into account the interest which this sum would have earned from the date of the offer up to the date of the assessment by the assistant registrar, it would become $351,809.82. As this sum was still less than the total sum of $352,279.33 awarded, Woo JC also altered the decision below on costs. The defendants were ordered to pay Ms Tan`s costs up to the date of the offer. As for the costs incurred after the offer, Woo JC fixed them at $1,000 payable by the defendants to Ms Tan. As for the costs of the appeal before the High Court, Woo JC also fixed it at $5,000, payable by the defendants to Ms Tan.

Both Ms Tan and the defendants appealed against the decision of the High Court. Ms Tan`s appeal was in respect of the pre-trial earnings and the loss of future earnings as well as the costs, from the date of the offer to the date of the assessment before the assistant registtrar, which was fixed at $1,000. The defendants` appeal was in respect of the judge`s decision to enhance the loss of pre-trial earnings by the sum $14,700 and his decision on costs.

At the conclusion of hearing the parties, we dismissed both the appeals. These grounds are issued in respect of two issues, namely: (1) the defendants` appeal against the High Court`s decision to enhance the loss of pre-trial earnings by $14,700; and (2) the question of costs generally, as both these issues raised some points of law.

The increase by $14,700

The putting back of $2,736.31, being the excessive deduction for income tax, was not challenged by the defendants before us. The challenge was only in respect of the judge putting back the sum of $14,700 which the assistant registrar deducted from what was assessed to be Ms Tan`s loss of pre-trial earnings on account of Ms Tan`s failure to mitigate her loss from January 1999 to the date of assessment. The assistant registrar was of the view that once the plaintiff learned that SIA would not put her back on flying duties then she should have, after the Asian economic crisis had subsided in late 1998 and early 1999, looked for an alternative non-cabin crew job.

However, Woo JC disagreed with that decision and held that the plaintiff had not acted unreasonably in failing to seek alternative employment in a different industry when she was still employed by SIA and earning a decent salary. Furthermore, there was insufficient evidence to show that the plaintiff would have been likely to obtain alternative employment at a higher salary. The determination of the figure of $700 per month was arrived at without any basis. He therefore restored the sum of $14,700 back to the plaintiff.

The appeal

On this appeal before us, the question that arose for consideration in regard to the sum of $14,700 was in relation to the principles applicable to the hearing of an appeal from an assessment made by the assistant registrar to the High Court. This was raised by the first defendant, SIA. Was the hearing before the High Court a hearing de novo? Was the High Court entitled to vary the quantum awarded as it pleased or was it governed by the same principles applicable to an appeal against an award made by the High Court to the Court of Appeal, namely, that the appellate court could only vary the quantum of damages awarded if it were shown that (1) the court below acted on wrong principles, or (2) misapprehended the facts, or (3) had for these or other reasons made a wholly erroneous estimate of the damages: see Davies v Powell Duffryn Associated Collieries [1942] AC 601 per Lord Wright.

The position taken by the first defendant was that the principles applicable to an appeal from the High Court to the Court of Appeal are similarly applicable to an appeal from the Registrar to the High Court. The appellate court, having not seen and heard the witnesses, should be slow to interfere and must be satisfied that the court below was clearly wrong before it should substitute its own decision for that of the court below.

There is no doubt that the principles in Davies v Powell Duffryn (supra) have been accepted and applied by this court in relation to appeals on damages from the High Court to the Court of Appeal, eg Chow Khai Hong v Tham Sek Khow [1992] 1 SLR 4 , Lim Hwee Meng v Citadel Investment [1998] 3 SLR 601 and Peh Eng Leng v Pek Eng Leong [1996] 2 SLR 305 at 310.

What the defendants, however, sought to argue was that the Powell Duffryn principles should also be applicable to an appeal on assessment from the Registrar to the High Court. But in this connection there were two authorities of this court which they had to overcome. The first was Chang Ah Lek v Lim Ah Koon [1999] 1 SLR 82 , and the second Ho Yeow Kim v Lai Hai Kuen [1999] 2 SLR 246 .

Mr Lawrence Teh Kee Wee, counsel for the first defendants, went into a detailed analysis of Chang Ah Lek (supra). He had to do it as this case stared right at him. This was a case where the plaintiff was injured in a motor accident. Liability was determined by the trial judge with assessment of damages being carried out by the assistant registrar who awarded the plaintiff, inter alia, $30,000 for general damages. On appeal, the High Court judge increased the amount to $35,000. On the defendants` further appeal to the Court of Appeal, one of the issues raised was that in enhancing the award for general damages by $5,000, the judge had overlooked the principles in Powell Duffryn .

It is true, as contended by Mr Teh that this court in Chang Ah Lek (supra) did, in fact, find that the assistant registrar had misapprehended the facts and the law and had come to a wholly erroneous estimate of the damages suffered, applying the Powell Duffryn principles. But the parties there did argue that the High Court, on hearing such an appeal, was to apply the same principles and, it was in response to this argument, that the court there proceeded to examine the question and offered its opinion.

The court first referred to s 62(1) of the Supreme Court of Judicature Act (Cap 322) which provided that the Registrar shall have the same powers and jurisdiction as the masters in England. Next, it referred to O 58 r 1 of the English Rules of the Supreme Court 1965 (like our O...