Sivakami d/o Sivanantham v Attorney-General

• Jurisdiction: Singapore
• Judge: Tan Sze Yao AR
• Judgment Date: 01 June 2012
• Neutral Citation: [2012] SGHCR 5
• Court: High Court (Singapore)
• Docket Number: Suit No. 992 of 2009/F—NA 2 of 2012
• Year: 2012
• Published date: 11 June 2012
• Hearing Date: 10 April 2012,12 April 2012,26 January 2012,11 April 2012
• Plaintiff Counsel: Perumal Athitham and Seenivasan Lalita (Yeo Perumal Mohideen Law Corporation)
• Defendant Counsel: Lee Hui Shan, Genevieve and Denise Wong (Attorney-General's Chambers)
• Subject Matter: Damages,Assessment
• Citation: [2012] SGHCR 5

AR Tan Sze Yao: Introduction

On Saturday 11 February 2006, the plaintiff, a school teacher, went to Zhangde Primary School to do some work and to prepare her classroom for the following week. Leaving her handbag in the teachers’ staff room on the second storey, she remained in the classroom until after 12:30 pm. She then found that the roller shutters to the staff room and the ground floor exits of the staircases were all locked. Her mobile phone was in her handbag, so she tried instead to shout for help. Unfortunately, this was to no avail. In the event, the plaintiff climbed out of a ventilation gap at a staircase and jumped down some 3.7 metres. She injured her right ankle and had to be hospitalised as a result. The plaintiff later brought this claim for damages against the defendant. Interlocutory judgment by consent was subsequently entered on 31 January 2011 for 70% of the overall damages to be assessed to be paid for by the defendant.

The present proceedings for assessment of damages raise three interesting issues. First, to what extent should an award of damages for pain and suffering be qualified by a plaintiff’s understandable but subjective reluctance to follow the advice of her doctors to undergo a particular course of necessary medical treatment? Second, how authoritative should a government officer’s Current Estimated Potential grading be in assessing that officer’s loss of future earnings? And third, how should a court view a claim for prospective damages that is premised upon a contingency entirely within the plaintiff’s control? These issues will be dealt with as they come up under the pain and suffering, loss of future earnings and future medical expenses heads of damages respectively.

The plaintiff and the defendant have taken largely contrasting positions in terms of the proposed damages to be awarded. These are set out in the following table:

(a)	General Damages	Plaintiff	Defendant
	(i)	Pain, suffering and loss of amenities Orthopaedic injuries Psychiatric disorders	Unclear: either $130,000.00 or $203,000.00 - Unclear: either $80,000.00 or $153,000.00 - $50,000.00	$34,000.00 - $30,000.00 - $4,000.00
	(ii)	Loss of future earnings and/or earning capacity Loss of future earnings for the next 10 years (“Stage I”) Loss of future earnings after 10 years up to retirement age (“Stage II”)	$1,688,400.00 - $487,200.00 - $1,201,200.00	Nil - Nil - Nil
	(iii)	Future medical expenses	$147,200.00	$35,800.00
	(iv)	Future transport expenses	$27,000.00	$11,000.00
		Subtotal	$2,065,600.00	$80,800.00
(b)	Special damages	Plaintiff	Defendant
	(i)	Pre-trial medical expenses	$6,688.48	$6,688.48
	(ii)	Pre-trial transport expenses	$10,560.00	$4,806.50
	(iii)	Pre-trial loss of earnings	$2,540.00	$2,540.00
	(iv)	Miscellaneous expenses (ambulance service etc.)	$640.00	$640.00
		Subtotal	$20,428.48	$14,674.98
		Total	$2,086,028.48	$95,474.98

*Since there is some discrepancy between the figures submitted by plaintiff’s counsel at the close of hearing and in their subsequent written submissions, I have taken the figures stated in the written submissions to be authoritative. From the above, it may be seen that apart from agreement on three out of four items coming under special damages – specifically, pre-trial medical expenses, pre-trial loss of earnings and miscellaneous expenditures – parties are in great disagreement on the correct amount of damages to be awarded. I will now go through each of the heads of damages in turn. Pain, suffering and loss of amenities

This head of damages is made up of two distinct components in the instant case: (a) damages for pain and suffering in respect of the plaintiff’s orthopaedic injuries and the subsequent loss of amenity resulting therefrom; and (b) damages for pain and suffering in respect of the plaintiff’s psychiatric disorders borne out of the accident, including but not limited to post-traumatic stress disorder (“PTSD”).

Both the plaintiff and the defendant appear to be agreeable to considering the claim for loss of amenities together with the claim for pain and suffering arising out of the plaintiff’s orthopaedic injuries (viz, component (a) in paragraph 4 above). In any case, even though pain and suffering and the loss of amenities are two distinct heads of damages, it is not unusual to see pain and suffering and loss of amenities being quantified together and a single award made, largely because it is difficult, as a matter of practice, to separate the two: see Au Yeong Wing Loong v Chew Hai Ban & Anor t/a Kian Heng Hiring Equipments Co [1993] 3 SLR 355. The courts will usually only make two distinct awards in extreme cases, such as where the plaintiff has been rendered blind, paraplegic or sexually incapable: see, for example, Denis Matthew Harte v Dr Tan Hun Hoe & Anor [2000] SGHC 248.

Separately, it would be best at this juncture to note that the exact amount claimed by the plaintiff for pain, suffering and loss of amenities is unclear. It appears from the plaintiff’s submissions that two claim quanta are possible: a flat sum of $80,000.00 as noted at paragraph 28, or a compound sum of $153,000.00 arrived at by adding $80,000.00 to three other sub-heads of claim for an open fracture to the plaintiff’s right ankle ($40,000.00), scarring ($15,000.00) and osteoarthritis ($18,000.00).

Damages for pain, suffering and loss of amenities in respect of orthopaedic injuries

The plaintiff was first advised in 2009 by Dr Wee Teck Huat Andy to undergo ankle fusion surgery if her symptoms worsened. Later, in September/October 2011, the plaintiff was advised by her own expert witness and attending physician, Dr Inderjeet Singh Rikhraj, to undergo ankle fusion surgery to overcome her pain. Dr Singh had then advised the plaintiff that because of her prior history of infection arising from the various operations that took place immediately after the accident in 2006, there would be a 20% risk of complications arising from non-union and infection, and a risk of the development of subtalar and midfoot arthritis as a result of the ankle fusion surgery. However, Dr Singh himself noted that the risk of an infection was an anticipated complication of surgery that could, for most part, be managed with antibiotics. The defendant’s expert witness, Professor Shamal Das De, opined that while the risk of infection in the plaintiff’s case would be higher than 1%, it was very unlikely for such an infection risk to reach 20% in the case of a fusion operation.

When the plaintiff was cross-examined on her doctors’ recommendations to undergo ankle fusion surgery, she conceded that the surgery was necessary but that it was her intention to postpone the surgery for “as long as I can” because she was afraid of post-surgical infection and that her ankle would be “fixed” – that is to say, that her ankle would have a restricted range of motion due to fusion of the ankle joints. The following extract is instructive: DC: Can I confirm that you’ve been offered ankle fusion surgery since 2009? P: Yes. DC: And your doctors have explained that this surgery will help overcome your pain. P: Yes. DC: You have been refusing to accept the surgery, according to your doctors and lawyers? P: Not refusing. Just postponing as long as I can. I have gone through a previous infection the last time. It was very traumatic for me. I don’t want to go through that again, at least until I really cannot take it anymore. DC: You’ve experienced pain since 2009? P: Before that. Since the accident. The pain has been getting worse and worse. DC: So why are you waiting? P: Buying time. The surgery is necessary, but the thought of going through everything again is just unbearable to me. DC: You have been advised of the benefits? P: It would alleviate the pain. But the chances of infection are there. And it is not a cure. My leg is not going to go back to its original state. Even if I go for surgery, the ankle will be “fixed”. That will put more strain when I am walking. Not going to get any better. It’s going to be worse. DC: But it will address the pain, which is your chief concern? P: It’s the strain on both legs. My other leg is also suffering. DC: I think you need to be very clear to the court. What is it that causes you to refuse the surgery? Risk of infection? Or the fact that your ankle will be “fixed”? P: Both. DC: And so you are putting this off indefinitely and waiting to see how it goes. P: Yes. DC: The risks of surgery are 20%, according to Dr Inderjeet Singh. So when you say you are afraid of surgery complications, what I want to understand is what exactly are you afraid of? P: Pain from post-surgery complications. It was indescribable pain. You will never imagine it possible. Even with painkillers it was not coming down at all. Wriggling in pain. And the doctors could not do anything for me. My fever was up most of the time. I would just lie there so helpless and my hospital stay was so long, I had to bear with it for so long. It just got worse and worse. I really don’t want to go through that again. DC: Are you okay? P: Yes. DC: Have your doctors told you your risk of infection would change in the future? P: Not that I know of. DC: So the probability of success remains at about 80%. P: Yes. DC: But notwithstanding this, for the reasons you’ve shared, you’re still hesitant and not...