Tan Kok Lam (next friend to Teng Eng) v Hong Choon Peng

JudgeChao Hick Tin JA
Judgment Date19 April 2001
Neutral Citation[2001] SGCA 27
Docket NumberCivil Appeal No 83 of 2000
Date19 April 2001
Published date19 September 2003
Plaintiff CounselKang Kim Yang and Aileen Boey (Joseph Tan Jude Benny Anne Choo)
Citation[2001] SGCA 27
Defendant CounselLow Tiang Hock (Chor Pee & Partners )
CourtCourt of Appeal (Singapore)
Subject MatterNegligence,Whether "pain and suffering" and "loss of amenities" under separate heads of damages,Whether unconsciousness prevented victim from claiming substantial damages for loss of amenities,Compensation and damages,Damages,Tort

(delivering the grounds of judgment of the court): On 24 September 1996, Teng Eng (`Teng`), whom the appellant, Tan Kok Lam (`Tan`) is next friend to, was knocked down by a motorcycle driven by the respondent, Hong Choon Peng (`Hong`). Teng was then 67 years of age. A CT brain scan showed a `left frontal brain contusion with fronto-tempero-parietal acute subdural haematoma`. A craniectomy and evacuation of the acute subdural haematoma were undertaken at the Singapore General Hospital.

The evidence showed that Teng was not able to respond to visual and verbal stimulation.
She could respond to pain, but was not aware of it. Her life expectancy was reduced and while she might live beyond five years she will not live up to 10 years. The assistant registrar found Teng to be in a `persistent vegetative state`.

Interlocutory judgment was entered in the High Court against Hong for 50% of the damages to be assessed.
An assessment was duly carried out by the assistant registrar who awarded Tan, among others, $80,000 for the loss of amenities. The assistant registrar felt that the fact that Teng was and is in a persistent vegetative state did not preclude her from making a substantial award for loss of amenities, as opposed to an award for pain and suffering.

Hong appealed against that award to the High Court and the trial judge, being of the view that unconsciousness should preclude the award of a substantial amount for loss of amenities, reduced the amount under this head to $21,000.
He stated that:

I think loss of amenities as a head of damages means loss of the capacity to enjoy the amenities of life. The injured person has been deprived of the means of enjoying life to the full that he would be able to but for the injury or deprivation. With respect, I agree with Lord Devlin in H West & Son Ltd & Anor v Shephard that in assessing damages under this head both the objective and the subjective elements must be considered and that deprivation should be measured mainly by the sense of loss. Where as in this case the injured person is unaware of the loss and is spared the frustration, distress and suffering resulting from an awareness of the loss damages should only be moderate and conventional.

Having heard the appeal on 19 February 2001, we disagreed with the approach taken by the trial judge and restored the award of $80,000 granted by the assistant registrar.
We now give our reasons.

Issues on appeal

The present appeal raised primarily a question of law as to whether our courts should adopt the majority decisions in Wise v Kaye [1962] 1 QB 638 and H West & Son v Shephard [1964] AC 326, where it was held that notwithstanding that the victim had remained unconscious as to his surroundings because he had, due to the accident, been reduced to a persistent vegetative state, he is still entitled to claim for substantial damages in relation to loss of amenities. In the alternative, Hong argued that even if West v Shephard were followed in Singapore, $80,000 was high or excessive. But, it was not seriously contended that it was so high as to be a wholly erroneous estimate necessitating the intervention of this court.

The authorities

We will begin examination of the question with the leading case, Wise v Kaye , where a young woman, aged 20, suffered serious brain injuries from a motor accident. She was hospitalised for 3[half ] years, helpless and unconscious. There was no prospect of recovery and she would never have any knowledge of her condition. Liability in that case was not in question. The trial judge awarded, inter alia, o15,000 as general damages. No claim was made for pain and suffering. The majority of the Court of Appeal held that general damages must be assessed on an objective basis and the fact that the victim was ignorant of the loss suffered was irrelevant and therefore the award of general damages given by the first instance judge at o15,000 was not excessive. Sellers LJ, delivering the main judgment of the majority, said (at p 651):

Unless authority directs, I would be reluctant to apply a standard or basis which required that the happiness of a living person has to be assessed, as it would have to be assessed, to use the common expression, subjectively. I know of no authority which supports this view and have heard no evidence adduced which would in any case permit of its true solution. The head of claim for pain and suffering would come nearer to considerations of happiness - but not, I think, in any deep sense - than would a claim for loss of limbs or faculties.

Sellers LJ distinguished Benham v Gambling [1941] AC 157 on the basis that the latter case was concerned with an action on behalf of a dead child`s estate for the restricted claim for loss of years of life.
Sellers LJ refused to treat an injured party as if the latter were dead and to award compensation only for loss of expectation of life and nothing else by way of general damages. He felt that while in common law pain and suffering and loss of amenities are invariably lumped together, they are distinct and separate heads of claim.

The second member of the quorum, Upjohn LJ also reiterated that damages suffered by a living plaintiff were assessed upon entirely different principles from those applicable to a claim for damages on behalf of a deceased person.
In respect of a claim for a living person, the fact that she was ignorant of the grave loss was irrelevant because `the injury to her has been done; the damage has been suffered`. In this respect, loss of amenities should be distinguished from pain and suffering. He said (at p 660):

If a plaintiff suffers personal injuries from the wrong-doing of another his cause of action accrues though he may be ignorant of the fact that he has been damaged: Cartledge v E Jopling & Sons Ltd. It is difficult to see why, in general, damages for such injury should be affected by ignorance unless the ignorance prevents the head of damage arising as in the case of pain and suffering.

Upjohn LJ also relied upon an earlier Australian case McGrath Trailer Equipment v Smith [1956] VLR 738 to come to the conclusion he did.
In McGrath Trailer , the plaintiff became childlike because of severe brain injury. Herring CJ rejected the subjective test advanced by the defendant and stated (at p 741):

The matter has to be treated objectively - what has the plaintiff lost as a result of his injuries, how great is the diminution of his capacity to enjoy life? ... The measure of his loss is not affected by the fact that he does not now by reason of his injuries realise what he has lost and does not miss his inability to live a normal life. It matters not that he now seems content with the cabbage-like existence, that his injuries have forced upon him, although, in truth, we have no knowledge if this is so in fact.

The majority of the court in Wise v Kaye (supra) also thought it irrelevant the fact that the plaintiff would not be able to use the compensation awarded.

However, the third member of the court, Diplock LJ, felt that the extent to which a particular plaintiff was likely to be deprived of pleasure or happiness, which but for the disability he would have enjoyed, was a matter to be taken into account.
In other words, unconsciousness by the plaintiff of his predicament was a factor which should adversely affect the quantum of damages to be awarded.

The next leading case is West v Shephard (supra), where the plaintiff, aged 41, was knocked down in a motor accident and sustained severe head injuries resulting in cerebral atrophy and paralysis of all four limbs.
Her life expectancy was reduced to five years. She might, to some extent at least, have appreciated the condition which she was in. The trial judge, relying upon the award of o15,000 in Wise v Kaye (supra), awarded general damages at o17,500 as he felt the plaintiff here was worse off than the plaintiff in Wise v Kaye since the plaintiff here must have some knowledge of her own condition. The Court of Appeal, and the House of Lords (by a 3-2 majority), dismissed the...

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2 books & journal articles
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2012, December 2012
    • 1 December 2012
    ...to the unconscious victim. This, according to the judge, was not the correct conclusion from the case of Tan Kok Lam v Hong Choon Peng[2001] 1 SLR(R) 786 in which the Court of Appeal drew a distinction between pain and suffering and loss of amenities. The Court of Appeal was of the opinion ......
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2001, December 2001
    • 1 December 2001
    ...fire had spread as a result of negligence and had caused damage. Damages 19.37 In Tan Kok Lam (next friend to Teng Eng) v Hong Choon Peng[2001] 2 SLR 389, the Court of Appeal clarified the principles behind the award of damages for pain and suffering and damages for loss of amenities. The a......

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