Tan Hun Boon v Rui Feng Travel Pte Ltd and another

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Pang Khang Chau JC
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] SGHC 189
• Citation: [2017] SGHC 189
• Defendant Counsel: Loh Kia Meng and Toh Key Boon Kelvin (Dentons Rodyk & Davidson LLP)
• Hearing Date: 21 September 2016,22 September 2016,09 November 2016,23 September 2016
• Subject Matter: Personal injuries cases,Damages,Measure of damages
• Docket Number: Suit No 662 of 2014
• Plaintiff Counsel: Lim Hui Ying and Chiam Daomin Mike (KhattarWong LLP)
• Date: 31 July 2017
• Published date: 08 August 2017

Pang Khang Chau JC: Introduction

On 23 June 2011, the Plaintiff stopped his car along the road shoulder of Ayer Rajah Expressway (“AYE”) to render assistance to a distressed vehicle. After helping to change a flat tyre on the distressed vehicle, the Plaintiff walked back towards his car, which was parked in front of the distressed vehicle. At that moment, a bus owned by the 1st Defendant and driven by its employee, the 2nd Defendant collided into the EMAS truck parked behind the distressed vehicle, causing the EMAS truck to collide into the distressed vehicle and the distressed vehicle to collide into the Plaintiff.

As a result of the collision, the Plaintiff suffered multiple fractures on his left leg as well as a fractured left hip. The injuries to the Plaintiff’s left leg were such that he had to undergo an above-knee amputation. After the amputation, the Plaintiff developed severe phantom limb pain.

As the Defendants did not dispute liability, interlocutory judgment was entered by consent on 10 September 2014 at 100% in the Plaintiff’s favour with damages to be assessed. The trial on quantum was heard before me from 21 to 23 September 2016. The amount of damages claimed by the Plaintiff is in the region of $2.2 million while the Defendants took the position that the Plaintiff is entitled to just over half a million in damages.

Undisputed items of damages

At the commencement of the trial, parties informed the Court that they had reached agreement on the following items: General damages for future medical expenses in relation to medical consultations and pain medication at $137,352.00; General damages for future costs of waterproof prosthesis at $49,700.00; Special damages for pre-trial medical expenses at $12,026.05.

Further, there was agreement between parties in their written closing submissions for the award of special damages for pre-trial counselling expenses at $1,000.00.

The amount agreed at [4(a)] above does not include the Plaintiff’s claim for an item of future medical treatment known as “spinal cord stimulation”. This item is explained at [26] below.

Disputed items of damages

The following are the heads of claim in dispute: General Damages: pain and suffering (inclusive of loss of amenities); future costs of spinal cord stimulation treatment; future costs of everyday prosthesis; future transport expenses for follow up treatment; loss of future earnings / loss of earning capacity; Special Damages: Pre-trial loss of earnings; Pre-trial transport expenses; Loss of personal effects.

Pain and suffering

The Plaintiff claims $130,000 for his left lower leg injuries and $25,000 for his left hip / upper left leg injury. The Defendants submit that a global award of $120,000 should be made for the injuries to the left leg and hip. In addition, the Plaintiff claims $2,000 for abdominal injury. The Defendant’s position is that no separate award should be made for abdominal injury.

Injuries to the left leg and left hip

The Plaintiff sustained the following injuries to his left leg and hip: comminuted proximal tibial fracture; displaced transverse proximal fibular fracture; displaced foreshortened transverse facture of the left femur at the mid shaft; and left incomplete acetabular fracture. The first two items were classified by the Plaintiff as part of the lower left leg injuries while the latter two items were classified by the Plaintiff as part of the left hip / upper left leg injury.

On arrival at the National University Hospital (“NUH”), the Plaintiff was observed to have sustained a near complete amputation of his left lower limb below the knee. He went into emergency surgery where a left above-knee amputation was performed because the doctors were not able to detect blood flow to the left foot. A subsequent surgery was performed three days later for wound exploration and debridement of the stump wound.

The Plaintiff was discharged after staying in the hospital for 11 days. He was fitted with a prosthesis only in May 2012 (almost a year after his injury), after his hip fracture has healed. Prior to that, he had to ambulate with crutches. He also underwent 27 sessions of physiotherapy from 19 August 2011 to 1 July 2013. A stump revision surgery was carried out in 2013 due to bone spur affecting the fit of his prosthesis. He then underwent a replacement of the socket of his prosthesis.

Relying on the prosthesis, the Plaintiff now walks with a noticeable limp. The Plaintiff’s evidence is that he is not able to run, squat or kneel at all. As the prosthesis is attached to his left hip, he would develop pain in the lower back and left groin if he walks for long distances. He would also develop pain in the right knee occasionally from compensating for the lost left limb.

Following the above-knee amputation, the Plaintiff developed severe phantom limb pain. He requires high doses of pain medication to make it through the day. But the medication does not take the pain completely away. The constant dull pain (even under medication) combined with the effect of the pain medication, affects the Plaintiff’s concentration and causes him to be easily fatigued. The pain also affects his sleep at night.

According to the Defendants’ medical expert, the orthopaedic specialist Dr Sarbjit Singh, the Plaintiff has already developed moderate osteoarthritis in his left hip and the osteoarthritis is likely to get worse over time. He noted that any fracture involving the hip joint predisposes the joint to osteoarthritis and that the resting of the body’s weight on the prosthesis through the left hip will aggravate the osteoarthritis over time.

The Defendants arrive at the global quantification of $120,000 by allowing: $80,000 for injuries to the lower-left limb leading to the above-knee amputation; $18,000 for injury to the left hip subject to an adjustment for inflation at the rate of 3% per year in light of the age of the authority relied on – Fadhil bin Kassim v Lau Cheong Wai (DC Suit No 1576 of 1995) cited in Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (the “Guidelines”) at p 45, fn 93; $5,000 for the early onset of osteoarthritis, based on the award Zakaria bin Putra Ali v Low Keng Huat Construction Co (S) Pte Ltd [1993] SGHC 277 (“Zakaria”).

In coming up with the $80,000 figure at [15(a)] above, the Defendants rely on the damages award of $80,000 in Rahmam Lutfar v Scanpile Construction Pte Ltd and anor [2016] SGHC 41 (“Rahman Lutfar”) and Quek Yen Fei Kenneth v Yeo Chye Huat [2017] SGCA 29 (“Kenneth Quek”).

The Plaintiff similarly relies on Rahman Lutfar and Kenneth Quek as the starting point for the damages for the injuries to the Plaintiff’s lower-left limb. The Plaintiff notes that Rahman Lutfar concerned an above-knee amputation without the complication of phantom limb pain while Kenneth Quek concerned a below-knee amputation with phantom limb pain.

Dr Sarbjit Singh’s evidence is that a below-knee amputation disables the patient to a lesser extent than an above-knee amputation because a patient with a below-knee amputation still has his knee and can bend the knee for various activities when fitted with a prosthesis. Similarly, the evidence of the Plaintiff’s prosthetist, Mr Trevor Binedell is that the prosthetic needs of a patient with below-knee amputation is simpler because he can control his walking gait with his knee and residual calf stump.

The Plaintiff therefore submits that an appropriate award for the lower-limb injury must be above $80,000 in order to take into account both the above-knee amputation and the phantom limb pain. In this regard, the Plaintiff highlights that the Guidelines provides a range of $20,000 to $35,000 for severe chronic pain syndrome.

The Plaintiff next refers to the case of Mei Yue Lan Margaret v Raffles City (Pte) Ltd [2005] SGHC 168 (“Mei Yue Lan Margaret”) in which $100,000 was awarded for pain and suffering to a victim who sustained a deep and traumatic laceration to her right ankle with reflex sympathetic dystrophy. She suffered persistent and excruciating pain for several years after the accident, during which she underwent 10 surgeries including one for trial implantation of a spinal cord simulator and one for permanent spinal cord simulator implantation. Woo Bih Li J observed at that, even though the victim’s injury “was not life-threatening and she did not lose her right foot, the pain and suffering she had to go through was more severe and for a longer period than an amputee’s” (at [54]). The Plaintiff therefore submits that there should be a composite award comprising $100,000 for pain and suffering for the injury resulting in amputation and a separate amount of $30,000 for the resultant phantom limb pain.

While I agree with the Plaintiff’s submission at [19] above that an award of $80,000 for the lower limb injuries would be inadequate, I cannot accept the logic of the Plaintiff’s submission at [20] above. The award of $100,000 in Mei Yue Lan Margaret already takes into account the severe chronic pain suffered by the victim. It would therefore be double-counting to add another $30,000 on top of that for phantom limb pain.

The correct approach is to use the award of $80,000 in Rahman Lutfar (a case concerning above-knee amputation) as the starting point and add another $20,000 to $35,000 to account for the severe phantom limb pain suffered by the Plaintiff. In other words, the appropriate award for pain and suffering for the left lower limb injury should range from $100,000 to $115,000.

With regard to the left hip / upper leg injury, the Plaintiff relies on the same authorities cited by the Defendants at [15] above ($18,000 for injury to the left hip and $5,000 for early onset of osteoarthritis), as well as the award of $13,000 in Rahman Lutfar for the risk of developing osteoarthritis to justify an...