Tan Shwu Leng v Singapore Airlines Limited and Another

• Jurisdiction: Singapore
• Judge: Woo Bih Li JC
• Judgment Date: 20 March 2001
• Neutral Citation: [2001] SGHC 51
• Court: High Court (Singapore)
• Published date: 27 March 2013
• Year: 2001
• Plaintiff Counsel: V Ramakrishnan (V Ramakrishnan & Co)
• Defendant Counsel: Lawrence Teh (Rodyk & Davidson),Ashok Kumar (Allen & Gledhill)
• Citation: [2001] SGHC 51

JUDGMENT:

Grounds of Decision On Assessment of Damages

1. The background of this action and assessment of damages is set out in the Grounds of Decision (Grounds) of the Assistant Registrar Tan Wen Shan dated 19 October 2000.

2. This action arose from a mid-air incident on board flight SQ 420 from Singapore to Dhaka on 25 November 1994, as a result of which the plaintiff Tan Shwu Leng (Ms Tan) was injured. Her main injury was a fracture of the left humerus as a result of which she was grounded instead of undertaking cabin crew duty with its various benefits. At the material time, she was employed by Singapore Airlines Limited (SIA), the owners of the aircraft, as a Leading Stewardess (LSS). On 3 November 1997, Ms Tan commenced the present action against SIA for damages for negligence and alternatively breach of statutory duty. Airbus Industrie, the manufacturers of the aircraft, were subsequently joined as co-defendants. Interlocutory judgment was entered against both Defendants on 19 September 1999 for damages to be assessed.

3. At the end of four and a half days of assessment, AR Tan awarded Ms Tan $13,000 for pain and suffering, $77,491.60 for loss of pre-trial earnings, and $225,534.21 for loss of future earnings.

4. The total amount payable to Ms Tan including interest pursuant to AR Tans assessment was less than $350,000.

5. On 24 January 2000, an offer to settle Ms Tans claim at $350,000 had been made by the Defendants (the Offer), but the Offer was not accepted.

6. In the circumstances, AR Tan ordered that:

(a) Ms Tan be entitled to costs on a standard basis up to the date of the Offer but AR Tan limited such costs to costs in respect of work done in the matter only,

(b) The Defendants be entitled to costs on an indemnity basis from the date of the Offer onwards.

7. It was not clear what costs in respect of work in the matter only meant.

8. Mr Lawrence Teh for SIA submitted that it was limited to work done for liability only as that was his argument which AR Tan appeared to have accepted.

9. The appeal before me proceeded on the basis of this interpretation.

10. After hearing arguments, I made the following order:

(a) For pain and suffering, no change.

(b) For loss of pre-trial earnings, to add $2,736.31 and $14,700 back to the sum awarded by AR Tan with interest at 3% per annum from date of the accident to date of AR Tans decision.

(c) For loss of future earnings, no change.

11. I would add that I also disallowed Ms Tans claim for alleged medical expenses ($125) and alleged transport expenses ($1,652) as there was no documentary evidence before AR Tan on these items. I disallowed an attempt by Mr V Ramakrishnan for Ms Tan to adduce documentary evidence of the same at the appeal before me.

12. In the light of my order as set out in para 10 above, I was informed that the total amount payable to Ms Tan would then be $352,279.33 including interest (according to Defendants Joint Submission on Costs, para 10).

13. The quantum of damages and interest for the purpose of assessing the Offer was $351,809.82 (according to Defendants Joint Submission on Costs, para 11).

14. In the circumstances, I rescinded the order of AR Tan on costs and ordered that:

(a) The Defendants pay the costs of Ms Tan up to the date of the Offer and this would include getting up on quantum, in addition to liability.

(b) Costs thereafter, up to the date of the decision of AR Tan, was fixed at $1,000 to be paid by the Defendants to Ms Tan.

15. As for costs of the appeal before me, I ordered that the Defendants pay Ms Tan such costs fixed at $5,000.

16. The parties have appealed against different parts of my main order as well as in respect of my order on costs.

MS TANS APPEAL TO THE COURT OF APPEAL

17. I will deal with Ms Tans appeal first. It is against that part of my order:

(a) in respect of pre-trial earnings,

(b) in respect of loss of future earnings,

(c) in respect of costs from the date of the Offer to the date of the decision by AR Tan.

18. In other words, Ms Tan has not appealed against my decision in respect of pain and suffering or in respect of her claim for medical and transport expenses.

Loss of Pre-Trial Earnings

19. As regards Ms Tans appeal to the Court of Appeal in respect of pre-trial earnings, Ms Tan is claiming that the $91,302.12 deducted by AR Tan as work expenses should be added back entirely or partially to her pre-trial earnings.

20. Ms Tan had been claiming various allowances which she would have earned as a cabin crew but for the injury.

21. However AR Tan had decided that expenses which Ms Tan would have incurred in earning the lost income had to be deducted relying on Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 at 191. Such expenses would be for, inter alia, meals and transport while Ms Tan was not in Singapore, had she still been a cabin crew.

22. Before me, Mr Ramakrishnan argued that such a deduction should not have been made.

23. As a matter of law, he relied on Lim Poh Choos case (cited above) and Dews v National Coal Board [1988] 1 AC 1.

24. However, Lim Poh Choos case did not assist Mr Ramakrishnan. It is authority for the principle that expenses incurred in earning income may be deducted from damages to be awarded to avoid over-compensating a plaintiff. While expenses which Ms Tan would have incurred are not literally spent to earn the income, they had to be deducted to avoid over-compensating Ms Tan.

25. The case of Dews also did not assist Mr Ramakrishnan. The passage he cited, at p 13 states:

One is, however, left with the fact that wherever a man lives he is likely to incur some travelling expenses to work which will be saved during his period of incapacity, and they are strictly expenses necessarily incurred for the purpose of earning his living. It would, however, be intolerable in every personal injury action to have an inquiry into travelling expenses to determine that part necessarily attributable to a chosen life-style. I know of no case in which travelling expenses to work have been deducted from a weekly wage, and although the point does not fall for decision, I do not encourage any insurer or employer to seek to do so.

26. However, the passage goes on to say:

I can, however, envisage a case where travelling expenses loom as so large an element in the damage that further consideration of the question would be justified as, for example, in the case of a wealthy man who commuted daily by helicopter from the Channel Islands of London. I have only touched on the question of travelling expenses to show that in the field of damages for personal injury principles must sometimes yield to common sense, and to acknowledge the force of Mr. Alexanders submission that the calculation of loss in personal injury cases should be kept simple as a matter of policy, particularly where the sums involved do not justify the costs likely to be incurred by elaborate investigations.

27. Therefore, usually the travelling expenses of a plaintiff are too small to be inquired into.

28. However the situation before me was different. Ms Tan was claiming allowances which she would have earned if she had not been injured but, at the same time, she would have incurred various expenses if she had not been injured.

29. Mr Ramakrishnan also cited another passage from Dews at p 14:

In respect of this part of his earnings the object of which is to provide income available for current expenditure the tortfeasor is, subject to sums necessarily spent to earn the income, entitled to no credit for expenditure saved as a result of the injury; the principle that it is no concern of the tortfeasor how the plaintiff chooses to spend his income applies.

30. In my view, this passage did not assist him and, on the contrary, supported the Defendants position. It reflected the same principle as Lim Poh Choos case.

31. Mr Ramakrishnan also cited the following passage from the judgment of Selvam JC, as he then was, in Balasubramaniam s/o Rajoo a minor suing by his father v Singapore Airlines Limited and another (apparently unreported) which said:

Laundry and incentive allowance were given only for full attendance. However, there was no suggestion that the plaintiff was prone to absenteeism. Accordingly it should be included in the salary.

32. It was clear from the passage cited that it was in respect of different facts.

33. Furthermore, Ms Tan had conceded in her evidence that any damages for loss of earnings should take into account expenses normally incurred whilst flying (see NE of 31 July 2000 at p 6D).

34. On this point, evidence had been given by one Peter Chong, Assistant Manager (Check/Training), Crew Performance Department, for SIA, that cabin crew spend about 40% of their (entire) monthly allowances on such expenses.

35. The $91,302.12 deducted by AR Tan represents the 40% deduction in the assessment of loss of pre-trial earnings.

36. Mr Ramakrishnan then argued that the 40% deduction should not apply to the Inflight Allowance as it was more of an incentive allowance and not a reimbursement for expenses to be incurred. He also pointed out that Mr Tehs Closing Submission at p 13 para 43 admitted that it should be excluded. Following this line of argument, he also argued that the 40% deduction should not apply to Turnaround Allowance.

37. Mr Ramakrishnan also argued that a deduction of 40% was excessive because:

(a) Crew meals are provided on most flights;

(b) Options to have meals consumed outside crews hotel, eg. eateries in Chinatown, fast food outlets and take aways and etc would result in lower costs than dining via room-service or in-house restaurants and cafeteria and crews hotels during overseas layover;

(c) Options for laundry done at home instead of sending to a launderette;

(d) Option to travel by bus and MRT to get to and from the airport instead of relying on taxi for turnaround flights.

38. In addition, he also argued that Ms Tan would...