Tan Kwee Hwang v Lim Yik Yi and another

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 31 May 2023
• Neutral Citation: [2023] SGDC 107
• Court: District Court (Singapore)
• Docket Number: DC/RA 30/2023, DC/S 835/2018
• Hearing Date: 05 May 2023,31 May 2023
• Citation: [2023] SGDC 107
• Year: 2023
• Plaintiff Counsel: Renuka d/o Karuppan Chettiar (Karuppan Chettiar & Partners)
• Defendant Counsel: Respondents absent.
• Subject Matter: Damages,Assessment,Personal injuries cases,Loss of earning capacity,Considerations for award,Accident victim continued to be employed by the same employer after traffic accident,Whether requirements for awarding loss of earning capacity have been met
• Published date: 09 June 2023

District Judge Kow Keng Siong: Introduction

In 2021, Mdm Tan Kwee Hwang (“Appellant”) obtained interim judgment in default of appearance against Lim Yik Yi and David Chau (“Respondents”). This is in connection with a road traffic accident which left the Appellant with multiple injuries, including head injuries and pelvic fractures.

At the end of an assessment of damages hearing in April 2023 (“AD hearing”), a Deputy Registrar (“DR”) made the following orders: An award totalling $208,453.47 in favour of the Appellant. This consisted of (i) $170,283.30 as damages for her personal injuries and consequential losses from the accident, and (ii) a further $38,170.17 as interests on the judgement sum. A dismissal of the Appellant’s claim for $50,000.00 as damages for loss of earning capacity (“LEC”). A rejection of the Appellant’s claim for $40,000.00 (excluding disbursements) as party-and-party costs. The DR awarded costs at $15,000.00 (excluding disbursements) instead. Disbursements were fixed at $9,746.02.

The appeal

The Appellant appealed against (a) the DR’s refusal to award LEC (“LEC appeal”) and (b) the DR’s costs order (“costs order appeal”).

Having heard the appeal, I dismissed the LEC appeal and partially allowed the costs order appeal. These are the reasons for my decision.

My decision Loss of earning capacity

I begin with the LEC appeal. It is settled law that the purpose of damages for LEC is to compensate a plaintiff for the competitive disadvantage that he will suffer, because of his injury, should he need to enter the job market.

Where a plaintiff continues to be engaged by the same employer after the accident (as in the present case), then it is well established that he must meet two requirements before such damages will be awarded. First, the plaintiff must show that there is a real or substantial risk that he may lose his current employment before the estimated end of his working life (“threshold requirement”). Second, the plaintiff must prove that should he lose his current employment, his injury would place him at a disadvantage in getting another comparable job (“disadvantage requirement”). See Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Chai Kang Wei”) at [36] and [37]; Teo Sing Keng v Sim Ban Kiat [1994] 1 SLR(R) 340 at [40]; Islam Mohammad Rakibul v Masud and another [2022] SGDC 270 (“Islam Mohammad Rakibul”) at [73], [74] and [89]; Asher David De Laure v Norhazlina Binte Md Yusop [2020] SGDC 72 (“Asher David”) at [67(d)] to [67(f)], [78(b)] and [88]; Clark Jonathan Michael v Lee Khee Chung [2010] 1 SLR 209 (“Michael Clark”) at [77] and [82]; Lim Yuen Li Eugene v Singapore Shuttle Bus Service Pte Ltd and Another [2005] SGHC 189 (“Eugene Lim”) at [43]; Radhakrishnan Naidu s/o Balram v Esa’ri bin Samad [2021] SGDC 246 (“Radhakrishnan”) at [73]; Quek Yen Fei (by his litigation representative Pang Choy Chun v Yeo Chye Huat and another appeal [2017] 2 SLR 229 (“Quek Yen Fei (CA)”) at [109]; Winston Tan at [38] and Muhamad Ilyas Bin Mirza Abdul Hamid v Kwek Khim Hui [2004] SGHC 12 (“Ilyas”) at [37]. I will now elaborate on these two requirements.

Threshold requirement

To satisfy the threshold requirement, the plaintiff must show that he faces a real or substantial risk – not a speculative or fanciful one – of losing his current employment. The plaintiff does not need to show that this risk is imminent: Chai Kang Wei at [37].

One obvious example where the threshold requirement will be established is where a plaintiff can show that his employer is dissatisfied with his poor work performance after the accident. The dissatisfaction can be manifested in different ways, such as a reduction in the plaintiff’s salary or being placed on a performance improvement plan. Regardless of how the dissatisfaction is manifested, there should be a causal link between the plaintiff’s poor performance, his disabilities, and the accident. (The employer’s dissatisfaction must not be due to other reasons such as the plaintiff’s poor work attitude.) Examples where such a causal link has been established include the following: Where the plaintiff’s disabilities have rendered him unable to work at the same intensity or level as before: Chai Kang Wei at [37]; Mohamed Faizal bin Mohamed Zain v Wong Siew Teng [2019] SGMC 57 (“Mohamed Faizal”) at [23(b)]. Where the plaintiff’s disabilities have restricted the range of work that he could take up: Quek Yen Fei (CA) at [109] and [111]; Mohammad Fadhil at [78]; Ong Zern Chern Philip v Wong Siang Meng [2004] SGHC 256 at [24].

Even if there is no evidence that the employer is currently dissatisfied with the plaintiff’s work performance, this does not necessarily mean that the plaintiff has failed to meet the threshold requirement. In assessing whether there is a real or significant risk that a plaintiff may lose his current employment, I agree with the following observations in Asher David: 90 … the truth is, an employer is always entitled to change his/her mind. And though the employer does not express any reservations about employing the Plaintiff now, that state of affairs may change in the future. The key question then, is not so much whether the employer is presently dissatisfied/uncomfortable employing the Plaintiff, but what is the probability that the employer would terminate the Plaintiff’s employment at some point, on account of his disabilities. That is the true test. …

[emphasis in original text]

In line with the above, circumstances where the threshold requirement can be met include the following: Where the nature of the plaintiff’s current employment is precarious, such that there is real uncertainty as to whether he can continue with his employment because of his injury/disability caused by the accident. Here are a few examples of this: Where the employment is on a part-time or contract basis: Chai Kang Wei at [37]; Tan Teck Boon v Lee Gim Siong [2011] SGHC 169 (“Tan Teck Boon”) at [46]. Where the plaintiff (1) is on probation, (2) is new to the work, or (3) is not a long-standing part-time employee: Mohammad Fadhil at [64]; Pawel Gajewski v Lee Tong Lynn [2019] SGDC 153 at [57]; Chai Kang Wei at [37]. Where there is a real risk that the plaintiff’s employer will scale down or cease operations because of the nature of the business or industry (e.g., a sunset industry). In Moeliker v A Reyrolle and Co Ltd [1977] 1 All ER 9, cited with approval in Chai Kang Wei, the English Court of Appeal included this consideration in their non-exhaustive list of factors that a court would have to consider in deciding whether there was a “substantial or real risk” of loss of employment:

In deciding this question all sorts of factors will have to be taken into account, varying almost infinitely with the facts of particular cases. For example, the nature and prospects of the employers' business; the plaintiff's age and qualifications; his length of service; his remaining length of working life; the nature of his disabilities; and any undertaking or statement of intention by his employers as to his future employment. If the court comes to the conclusion that there is no " substantial" or " real" risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.

[emphasis added]

Where the plaintiff’s disabilities have made it difficult, or will make it difficult, for his employer to deploy him in future: Tan Teck Boon at [46]; Chai Kang Wei at [37].

At this juncture, it bears re-iterating that the plaintiff has the burden to prove that he faces a real risk of losing his current employment. Examples where a plaintiff has failed to discharge this burden include the following: Where the plaintiff fails to show how his injury will affect his work abilities in the future: Su Changhong v Huang Weiren [2017] SGDC 228 (“Su Changhong”) at [26(c)]; Mohamed Faizal at [23(c)] and [23(d)]. Where the plaintiff’s injury in fact will not affect his current and future work performance given the nature of his work: Ho Yung Peng v Tan Say Tiong [2021] SGDC 141 (“Ho Yung Peng”) at [36] – [40]. Where the plaintiff has been continuously employed for several years by the same employer up to the time damages are assessed. In Thiru Kumar a/l Thanamalai v Ng Khim Han Calvin [2021] SGDC 47 (“Thiru Kumar”) at [33(e)], the court held, among other reasons, that the threshold requirement had not been met because the plaintiff was continuously employed for more than four years up to the date of the first tranche of the assessment of damages hearing, and had not shown that the accident had caused him any difficulties with that job. Where the plaintiff has received an increase in salary: Su Changhong at [26(a)] and [26(b)]; Mohamed Faizal at [23(a)]. In Ho Yung Peng at [38], the court relied on, among others, the fact that the plaintiff had received a promotion after the accident in finding that there was little risk of him losing his employment. Where despite his disabilities, the plaintiff continues to be a valued worker because of his experience and skill. This can happen, for instance, where the plaintiff works in a field that has a dearth of experienced workers such as himself: Seow Hwa Chuan v Ong Wah Chuan [2016] SGHC 146 (“Seow Hwa Chuan”) at [13].

Disadvantage requirement

In addition to the threshold requirement, the plaintiff must show that should he lose his current employment, he will face competitive disadvantage in the job market because of his disability: Chai Kang Wei at [36].

To digress, the disadvantage requirement is incidentally the sole test to be met for a plaintiff who has lost his employment after the accident: Mykytowych, Pamela Jane v V I P Hotel [2016] 4 SLR 829 at [139]. The reason for this requirement being the sole test is easy to understand – a plaintiff who is left unemployed after an accident is...