Soon Pook Seng Arthur v Oceaneering International Sdn Bhd

• Jurisdiction: Singapore
• Judgment Date: 10 June 1995
• Date: 10 June 1995
• Docket Number: Suit No 1937 of 1989
• Court: High Court (Singapore)

Soon Pook Seng Arthur

Plaintiff

and

Oceaneering International Sdn Bhd

Defendant

[1995] SGHC 146

Warren L H Khoo J

Suit No 1937 of 1989

High Court

Damages–Assessment–Appeals–When appellate court should interfere with lower court's award of damages–Applicable principles–Damages–Measure of damages–Personal injuries cases–Assessment–Post-trial losses–Approach of court when dealing with possibility of future event occurring–Appropriate multiplier to apply

The plaintiff was injured in the course of his employment as a commercial diver and had to give up his occupation. The defendant, his employer, was found wholly liable for his losses and judgment was given for damages to be assessed. On the date of the assessment, the plaintiff was 39 years old and he claimed that, but for the accident, he would have worked until he was at least 50 years old and that he would probably have eventually become a diving supervisor. The defendant argued that the retirement age of divers rarely exceeded 40 years and that it was unlikely that the plaintiff would become a supervisor. The assistant registrar awarded damages to the plaintiff on a multiplier of two years. The plaintiff appealed.

The questions raised in the appeal were: firstly, whether in the circumstances of this case, the multiplier that was used for the post-trial loss was too short; and, secondly, whether the assistant registrar was right in deciding that the plaintiff could never have become a supervisor either during the pre-trial or the post-trial period.

Held, allowing the plaintiff's appeal:

(1) The court, before it interfered with an award of damages, should be satisfied that the judge had acted on a wrong principle of law, or had misapprehended the facts, or had for these or other reasons made a wholly erroneous estimate of the damage suffered: at [44].

(2) The assistant registrar had failed to consider the totality of the evidence, and had given undue weight to the evidence of the defence witnesses and no or insufficient weight to the evidence of the plaintiff's witnesses: at [45].

(3) In relation to the retirement age of divers, the assistant registrar relied on British statistical studies without giving enough allowance for the difference in the diving conditions in the tropics and in temperate countries. The evidence all pointed to the fact that working life in Britain was significantly harder than that locally. Furthermore, unlike divers working in Britain who were able to draw their pensions, freelance divers in Singapore did not have any CPF funds to draw on. This difference tended to encourage divers in Singapore to carry on working longer: at [46].

(4) As for the plaintiff's chances of becoming a supervisor, the matter should not have been dealt with as if it involved a determination of fact. So long as there was a fair possibility, as opposed to a mere fanciful speculation, that an event would have happened, that possibility must be taken into account, with due allowance made for the possibility that the event might not have happened: at [58].

(5) The assessment should have been on the basis that but for the accident the plaintiff would have had a chance of continuing to dive for a period, and then going on to some diving-related occupation, such as an air diving supervisor or a barge operator, giving due allowance for the possibility of any of these ceasing or not occurring at all for some reason or other. The starting point was to take a multiplier appropriate to a person of the plaintiff's age and fitness, but allowances should be made for the particular hazards of his occupation. In this case, a reasonable multiplier would be about ten: at [61].

Davies (suing as widow and administratrix of the estate of Davies) v Taylor [1974] AC 207; [1972] 3 All ER 836 (folld)

Davies v Powell Duffryn Associated Collieries, Limited (No 2) [1942] AC 601 (refd)

Mallett v McMonagle [1970] AC 166; [1969] 2 All ER 178 (folld)

Owen v Sykes [1936] 1 KB 192 (refd)

Pritchard v J H Cobden Ltd [1988] Fam 22 (refd)

Underwood v Ong Ah Long [1986] 2 MLJ 246 (folld)

Evidence Act (Cap 97,1990 Rev Ed)s 32 (b)

Nathan Isaac, Abdul Rohim Sarip and D S Kanangara (Nathan Isaac & Co) for the plaintiff

Govintharasa (Gurbani & Co) for the defendant.

Judgment reserved.

Warren L H Khoo J

1 The plaintiff was a commercial diver. Unlike someone diving for recreation, a commercial diver does it for a living. He is usually employed by a diving contractor, and is sent offshore to do any of a variety of work underwater for the contractor's client, such as surveying the sea bed or grouting a pipeline, to take just two examples from the plaintiff's own logbook.

2 The plaintiff had been diving since 1975, mostly with a company called Comex. In the diving industry, you seldom find a diver on the permanent establishment of one employer. The norm is to work freelance, going from one employer to another. The reason is that employers do not always have enough jobs to keep a diver on diving work on a continuous basis. They would not pay a diver the full diving rate when he is not diving. A diver would earn more if he moves from one employer to another in accordance with the demand for his services. Sometimes, employers contract with divers in anticipation of diving jobs coming their way so that they do not have to scurry to get divers at the last minute, and rates for diving and non-diving days are agreed. In the plaintiff's case, he worked as a salaried diver with Comex from 1975 to 1978. From 1978 onwards, he worked freelance. However, he had frequent repeat engagements with Comex.

3 In April 1987, the plaintiff was taken on by the defendants. He had not worked for them before. It was part of the contract with the defendants that during periods when he was not undertaking diving assignments, he was to work in the workshop on a non-diving rate. As it happened, he was not assigned any diving duties from the date he joined the defendants up to the date of the accident which gave rise to the claim in this suit.

4 On the day of the accident, 5 July 1987, he was instructed by his supervisor to move a heavy steel cabinet from the workshop to an area outside. He was doing this with three other men, using two wooden trolleys. They managed to move it until they came to a turning, when a wheel of one of the trolleys got stuck in a hole in the ground and they could not move on. While trying to set it right, one or more of the other workers let go of their hold on the cabinet. The plaintiff tried to hold on but the weight of the cabinet proved to be too much, and it toppled and fell on top of him. He sustained a wedge compression fracture of the 12th thoracic vertebra, as a result of which he had to give up his occupation as a commercial diver. After working on a few odd jobs, he settled down to a job described as a project coordinator for a contractor doing upgrading work at Marine Parade. He started that in November 1993.

5 In July 1993, G P Selvam J (seeSoon Pook Seng Arthur v Oceaneering International Sdn Bhd [1993] 2 SLR (R) 518), who tried the case, found the defendants wholly liable, and gave the plaintiff judgment for damages to be assessed.

6 At the conclusion of the damages assessment, the learned assistant registrar on 15 June 1994 awarded the plaintiff a total of $301,368.71 made up as follows:

(1) General damages for pain and suffering	-	S$	18,000.00
(2) Transport expenses	-	S$	400.00
(3) Pre-trial loss of earnings	-	S$	229,785.40
(4) Post-trial loss of earnings	-	S$	53,183.31
Total:	-	S$	301,368.71

7 The learned assistant registrar's assessment of pre-trial loss was based on loss over a net period of six years 8 months. Although the period that elapsed between the date of the accident and the date of assessment was nearly seven years, she took into account the fact that there was a slump in 1987 and found that the plaintiff could have worked about 2 months in total for that year. That, as I take it, plus about 6 years from January 1988 to the date of assessment, accounts for the six years 8 months that was used for the pre-trial loss. As for the post-trial loss, she used a multiplier of only two years, accepting the defendants' submission that only a small percentage of divers continued diving beyond the age of 40, and only rarely would any diver go beyond the age of 45.

8 In Pritchard v J H Cobden Ltd [1988] Fam 22, the Court of Appeal of England upheld the practice in the case of a living plaintiff of ascertaining pre-trial loss of earnings as special damages, and of ascertaining post-trial loss of earnings as general damages, in the latter case by the application of a multiplier to a multiplicand. Their Lordships stated that only in relation to the latter has the use of a multiplier and multiplicand any relevance. Their Lordships also held that the delay between the date of the accident and the date of the trial is not a reason for selecting a multiplier from the date of the accident, as opposed to the date of trial; the plaintiff should not be deprived of his proper compensation because of the delay. This practice is generally followed here, and was followed in this case.

9 The plaintiff was born in February 1955. That makes him 32 at the time of the accident and 39 at the date of the assessment of damages.

10 The questions raised are, firstly, whether in the circumstances of this case, the multiplier that was used for the post-trial loss was too short, and, secondly, whether the learned assistant [registrar] was right in deciding that the plaintiff could never have become a supervisor either during the pre-trial or the post-trial period.

Different forms of diving

11 Before I go further, I should say a few words about the different forms of diving which a commercial diver engages in. It is only a...