Tan Shi Lin v Poh Che Thiam

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu SJ
• Judgment Date: 07 September 2017
• Neutral Citation: [2017] SGHC 219
• Citation: [2017] SGHC 219
• Court: High Court (Singapore)
• Published date: 17 April 2018
• Docket Number: Suit No 109 of 2014
• Plaintiff Counsel: Tan Seng Chew Richard and Koh Keh Jang Fendrick (Tan Chin Hoe & Co)
• Defendant Counsel: Yeo Kim Hai Patrick and Neo Eng Hong (KhattarWong LLP)
• Subject Matter: Damages,Measure of damages,Personal injuries cases
• Hearing Date: 18 January 2017,19 January 2017,20 January 2017,17 January 2017,11 April 2017

Lai Siu Chiu SJ: Introduction

This suit arose out of a road accident that took place on 26 December 2012 (“the accident”). The accident involved a then 32 year old female motorcyclist Tan Shi Lin (“the plaintiff”) and Poh Che Thiam (“the defendant”) who was then driving motor bus no. CB 6780X (“the bus”). The bus slammed into the left side of the plaintiff’s body causing her to fall off her motorcycle after which a wheel of the bus ran over her left foot.

In regard to the plaintiff’s injuries, I can do no better than to quote the following extracts from the medical report of the plaintiff’s orthopaedic surgeon Dr David Paul Bell (“Dr Bell”) dated 24 February 2015 (“Dr Bell’s first report”) which was written in comprehensible English free from medical jargon unfamiliar to the average layman:¹

[The plaintiff] sustained the following injuries: 1. Near amputation of the left big toe. 2. Open dislocation of the left second toe interphalangeal joint. 3. Degloving injury to the skin on the medial [ie, inner] aspect of the left foot, involving the dorsal and plantar surfaces of the foot.

…

[The plaintiff] underwent multiple surgeries to her left foot, including amputation of the left big toe following unsuccessful revascularization of the toe. She also underwent disarticulation of the second toe at the metatarsophalangeal joint subsequently.

Definitive soft tissue coverage was achieved with a free flap, transferring skin and muscle from her left thigh to cover the defect. She subsequently underwent flap debulking and scar excision in May 2013.

The plaintiff was hospitalised twice. On the first occasion she was warded from 26 December 2012 to 2 February 2013.² Together with her second stay (30 May 2013 to 4 June 2013),³ she spent a total of 42 days in the hospital. There were occasions when the plaintiff suffered from skin graft donor site and wound infections.⁴ She was either on crutches or in a wheelchair for about six months after her discharge from hospital in February 2013 due to delays in her healing process.

Aside from the main degloving injury and the two amputations, the plaintiff suffered and still suffers from: (i) chronic/permanent pain in her left foot; (ii) compensatory pain in her right foot; (iii) adaptive/compensatory low back pain; (iv) a decreased range of motion and stiffness in her left ankle and (v) supraspinatus tendonitis in her left shoulder. She also claimed that there is a likelihood of the early onset of arthritis in her left foot and ankle as well as the development of lumbar spondylosis.

In addition to those physical injuries, the plaintiff claimed that she suffers from Post-Traumatic Stress Disorder (“PTSD”). She has stopped riding a motorcycle since the accident, allegedly because she has developed a phobia towards it. In her affidavit of evidence-in-chief (“AEIC”), the plaintiff deposed that seeing a bus or a cross-junction (where the accident happened) reminded her of the accident. She claimed that she would hide her physical disfigurement by wearing trousers and has had to come to terms with her amputation injuries. Her injuries have also affected her relationship with her boyfriend.

Despite sustaining these serious injuries, the plaintiff – who at the material time worked as a physiotherapist at Khoo Teck Puat Hospital (“KTP Hospital”) – commendably pursued and excelled in, further studies from January 2014 to July 2014. She obtained a first class honours degree in physiotherapy from Trinity College Dublin, School of Medicine, on 26 June 2014.

The plaintiff commenced this suit in January 2014, which action the defendant initially resisted. However, on 21 October 2014, the defendant consented to interlocutory judgment being entered against him on the basis he was 100% liable for the accident with damages, interest and costs reserved to the court assessing the damages.

The trial that took place before this court therefore was to determine the quantum of damages due and payable to the plaintiff arising from the injuries she sustained in the accident.

The plaintiff’s claims for general damages totalled $725,826.72. This comprised:⁵ $281,500 for pain and suffering and loss of amenities; $75,000 for loss of earning capacity; $346,968 for loss of future earnings; $21,105.39 for future medical expenses; and $1,253.33 for future transport expenses.

The plaintiff’s claims for special damages totalled $50,972.37. This comprised:⁶ $1,605 for the cost of repair of the plaintiff’s motorcycle; $90 for the loss of use of the plaintiff’s motorcycle; $9,408.88 for pre-trial medical expenses; $415.49 for pre-trial transport expenses and $39,453 for pre-trial loss of earnings. It should be noted that parties had reached agreement on items (a) to (d) above, and informed the court of the same at trial. These four items totalled to $11,519.37.

The defendant’s closing submissions argued that the plaintiff should only be entitled to an award of $152,826.87 in respect of both general and special damages,⁷ a figure which reflects a complete lack of sympathy for the plaintiff’s unfortunate circumstances.

The evidence

For the assessment hearing, the plaintiff called a number of medical professionals as her witnesses, namely: Dr David Tan Meng Kiat (“Dr Tan”), a consultant at the Department of Hand and Reconstructive Microsurgery at National University Hospital (“NUH”) who had operated on the plaintiff immediately after the accident; Dr Rathi Mahendran (“Dr Rathi”), a senior consultant psychiatrist at the Department of Psychological Medicine at NUH; Dr Lim John Wah (“Dr Lim”), a consultant at the Department of Family & Community Medicine at KTP Hospital; Mr Adriaan Erasmus, the principal podiatrist at NUH; Ms Rie Nagai (“Ms Nagai”), a senior prosthetist and orthortist at Tan Tock Seng Hospital (“TTSH”); and Ms Pow Siok Kee (“Ms Pow”), a senior occupational therapist at NUH.

In addition to the above, the plaintiff called the human resources manager of KTP Hospital, Ms Nya Lee Hoon (“Ms Nya”).

The defendant’s medical expert was Dr Lim Yun Chun (“Dr LYC”), a consultant psychiatrist at Raffles Hospital.

The defendant agreed to dispense with the attendance of the plaintiff’s three other medical witnesses, namely: Associate Professor Peter George Manning, a consultant at NUH who was on duty as the senior emergency physician when the plaintiff arrived at NUH on the evening of 26 December 2012 after the accident; Ms Kate Frances Carter, a senior podiatrist at the Rehabilitation Centre at NUH; and Mr Trevor Bindell, the Assistant Head of Service of Prosthetics and Orthotics Department at TTSH. Consequently, the reports of these three witnesses were accepted without the need for cross-examination.

Due to the defendant’s agreement to accept items (a), (b) and (d) listed in [10] above, the court was also able to dispense with the evidence of Phoon Siew Kook from the workshop that repaired the plaintiff’s motorcycle as well as that of the automobile appraiser Looi Eng Chai who had appraised the damaged motorcycle and estimated its cost of repair to be $1,500.

The plaintiff had similarly agreed to dispense with the attendance of Dr Bell as a witness. Dr Bell’s first report as well as his second report dated 3 January 2017 (“Dr Bell’s second report”) were put in as evidence without the need for cross-examination. I shall return to Dr Bell’s reports later.

The claims for general damages

I shall first deal with the items of general damages under the separate heads claimed by the plaintiff.

Pain and suffering and loss of amenities

The plaintiff claimed in respect of the following injuries:⁸ Degloving injury to left foot; Big toe amputation; Second toe amputation; Chronic/permanent left foot pain; Compensatory right foot pain; Adaptive/compensatory low back pain; Left shoulder contusion/supraspinatus tendonitis; Decreased range of motion/stiffness of ankle in left foot; Surgical scars; Possible early onset of arthritis for the left foot and ankle; Possible development of lumbar spondylosis; and PTSD. It should be noted that the plaintiff had initially claimed in respect of a ganglion cyst on her left wrist.⁹ However, she eventually withdrew this item of claim based on Dr Bell’s second report that it was improbable it was caused by the foot injury.¹⁰

Undoubtedly, the plaintiff suffered horrific injuries as a result of the accident. The resultant amputation of her left big and second toes affected the plaintiff’s work as a physiotherapist. The injuries also left the plaintiff with unsightly scars and keloid formations due to the skin grafts she had undergone, not to mention the constant pain she must endure daily from her left foot as well the compensatory pain she suffers from her right foot and lower back.

I will deal with each item in the order set out above, grouping them together where appropriate.

(a): Degloving injury to left foot

Both Dr Tay and Dr Bell referred to the Ministry of Manpower’s Guide to the Assessment of Traumatic Injuries and Occupational Diseases for Work Injury Compensation (“GATOD”) for their assessments of the plaintiff’s disability at 33% and 37% respectively.¹¹

Counsel for both parties equally relied on GATOD but arrived at different conclusions. The plaintiff’s counsel submitted that for the pain and suffering and loss of amenities that the plaintiff endured and continues to endure for the degloving injury to her left foot, a sum of $90,000 should be awarded. In support, the plaintiff cited Ng Chee Wee v Tan Chin Seng [2013] SGHC 54 (“Ng Chee Wee”). The plaintiff there claimed against the defendant for injuries he suffered when the defendant’s lorry collided into the plaintiff’s motorcycle. The plaintiff suffered, amongst other injuries, a degloving injury to his right foot. The judge affirmed the figure of $90,000 awarded by the...