Tan Siew Bin Ronnie v Chin Wee Keong

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 08 October 2007
• Neutral Citation: [2007] SGHC 168
• Date: 08 October 2007
• Subject Matter: Assessment of damages for loss of earning capacity,Tort,Assessment of damages for pain and suffering and loss of amenities,Cut-off date for interest on damages awarded,Approach to assessment,Whiplash injury,Assessment,Interest awarded damages for loss of earning capacity,Negligence,Interest awarded for damages for pain and suffering and loss of amenities,Damages,Interest
• Docket Number: Suit No 1149 of 1999 (Registrar's Appeals Nos 600006 and 600007 of 2007)
• Published date: 18 December 2007
• Defendant Counsel: Fazal Mohamed bin Abdul Karim (B Rao & K S Rajah)
• Court: High Court (Singapore)
• Plaintiff Counsel: Ramasamy Chettiar (ACIES Law Corporation)

8 October 2007

Chan Seng Onn J:

1 The plaintiff sustained whiplash injury as a result of a road traffic accident on 2 September 1996 when the defendant’s lorry loaded with about 500 kg of metal stacked on movable pallets collided with the plaintiff’s car. Interlocutory judgment was entered on 1 February 2000 in favour of the plaintiff. After several days of hearing in 2006, Assistant Registrar Ang Ching Pin (“AR”) delivered her judgment on 3 May 2007, assessing the damages to be as follows:

1)	Special Damages (agreed)	S$4,947.71
2)	General Damages for Pain and Suffering and Loss of Amenities (assessed)	S$24,000.00
3)	Loss of Earning Capacity (assessed)	S$100,000.00
4)	Future Medical Expenses (assessed)	S$6,800.00
5)	Interest on item 2 ($24,000.00) at 5.33%per annum from 12.8.99 (date of service of Writ) to 31.8.03 [1480days]	S$5,186.90
6)	Interest on item 1 ($4,947.71) at 3% per annum from 2.9.96 (date of accident) to 31.08.03 (2544 days)	S$1,034.50
		S$141,969.11

2 The plaintiff appealed against the quantum of damages for items 2 and 3 of the award and the interest rate and the cut-off date for the interest in items 5 and 6 of the award. The defendant appealed against the quantum of damages for items 2 and 3 of the award.

3 I upheld the AR’s assessment but varied the interest rate for item 5 from 5.33% to 6% p.a. The parties have appealed against my decision and I now give my reasons.

4 The AR found that the plaintiff had suffered whiplash injury to the cervical spine with residual disabilities such as frontal headaches, neck stiffness and occasional bouts of vertigo. On occasions, he would experience frontal headaches, spinning sensations and his shoulders would become tight and painful. These symptoms would usually occur during the late afternoons, when he read for a long and continuous period of time or when he handled trials of more than three or four days. On 26 June 1997 and 2 July 1997, he had a significant attack of giddiness. The plaintiff’s wife and ex-colleagues gave evidence on the extent of the debilitating effects on the plaintiff during and outside of work when the symptoms manifested.

5 The doctors called by both parties generally agreed, however, that the plaintiff was pain-free most of the time.

6 At the appeal, both counsel relied extensively on a table summarising the medical evidence which counsel for the defendant had prepared. It would be helpful to reproduce it here, with some corrections made to reflect the correct dates for the various medical reports: see Annex A.

[LawNet Admin Note: Click on the link to the PDF above to see Annex A]

7 Dr Lai Chan See examined the plaintiff in 2001 some four and a half years after the accident. He evaluated the plaintiff’s permanent impairments in accordance with the criteria in the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” (“Guide”) and found as follows:

	Whole Person
Neck extension to 40º	2%
Neck flexion to 45º	1%
Neck rotation 65º to right	1%
Neck rotation 55º to left	1%
Neck lateral flexion 20º to right	2%
Neck lateral flexion 25º to left	1%
Combined neck impairment	8%
Vertigo, where the usual activities of daily living are performed without assistance except for complex activities	9%
Total Combined Impairment	16%[note: 1]

8 Dr Lai opined that the plaintiff had a 16% total combined impairment of his whole person caused by the recurrent vertigo and the limitation in the range of his neck movements. The neck pains and headaches would affect the plaintiff’s mental concentration during pre-trial preparation and his mental agility at trial. His productive working hours would be reduced and stress would aggravate his symptoms. The plaintiff experienced recurrent vertigo, usually brought on by elevating his head after it had been held in a flexed position for some time. On the occasion that it occurred in court, it was a very distressing experience for him. Dr Lai concluded that the permanent impairments had adversely affected the plaintiff’s performance as a litigation lawyer.

9 On re-examination of the plaintiff in 2006, Dr Lai found some improvement in the plaintiff’s condition. Dr Lai reduced the total combined impairment rating to 14%.

10 In view of the supporting medical evidence, I accepted that the accident had caused the plaintiff to suffer from whiplash injury to the cervical spine with residual permanent disabilities, which included frontal headaches, neck pain and stiffness, giddiness and vertigo, although he was pain-free most of the time. I also accepted the evidence that the plaintiff’s residual disabilities adversely affected his work as a litigation lawyer to some degree, especially when the symptoms manifested themselves. However, he has learnt to cope by avoiding certain neck movements which would likely trigger the onset of vertigo. His condition has improved and stabilised since the accident.

11 The main difficulty was to assess the quantum of the damages to be awarded. A sensible way forward would be to examine the awards in other comparable cases and use them as a guide to assess the amounts that should be given in this case. I was fully mindful that each case has to be decided on its own facts.

Pain, suffering and loss of amenities

12 Counsel for the defendant submitted that the amount awarded for pain, suffering and loss of amenities should be about $16,000 whereas counsel for the plaintiff contended that it should be in the region of $35,000.

13 In Kuan Whye Mun v Yeoh Woei Chi Nicholas (DC Suit No 964 of 2003) (“Kuan”), the plaintiff suffered from whiplash injury and was awarded $18,000 for pain and suffering, and $70,000 for loss of earning capacity. She had pain in her neck and back. The medical report of Dr Sayampanathan stated that in between visits to his clinic, her pain was very bad. She required pain killer injections and medication. The frequent injections she received led to the development of inflammation and painful lumps in both her buttocks. Both the neck and back injuries were severe to the extent that there were neurological problems. MRI scans of the cervical spine showed a reversal of the cervical lordosis. There was evidence of damage to the spinal disc at C5/6 level resulting in a small postero-central disc protrusion at the same level. In contrast, the plaintiff in the present case did not have neurological abnormalities or deficits. Dr Ho, the plaintiff’s medical witness, stated that there was no cervical root disease or spinal cord involvement. In my view, the plaintiff in Kuan suffered a greater degree of pain and suffering than the plaintiff in the present case.

14 In Doris Chia Ming Lai v Wendy Woo Siew Mei (DC Suit No 1359 of 1999) (“Doris”), the plaintiff, a lawyer, was awarded $15,000 as general damages and $60,000 for loss of earning capacity after sustaining an extension injury of the neck with residual symptoms, which included giddiness, headaches and neck pain. These residual symptoms were likely to be permanent. The pain was of sufficient severity to interfere with her typing and reading. She complained of constant headaches, which would start at the beginning of the day and worsen as the day progressed. Side-to-side neck movements produced giddiness, and extension of her neck produced extreme giddiness. Her working hours were reduced because of the mental distractions from the constant neck pains and headaches. Using the evaluation criteria in the Guide, Dr Lai Chan See assessed the plaintiff to have a combined neck impairment of 7% and a giddiness impairment of 5%, giving a total combined permanent impairment of 12 %.

15 In the present case, the plaintiff’s headaches normally set in during the late afternoons after he had been concentrating at work. According to Dr Ho’s latest medical report dated 9 February 2006, the plaintiff’s clinical status had improved. His episodes of cervicogenic vertigo had become less frequent. His neck movements also improved, although restricted neck movement to the left remained. Persistent myofascial trigger points in the left neck, shoulder, scalp and jaw, and frequent severe tension-type headaches continued. I accepted that the plaintiff’s total combined permanent impairment, assessed at 16% (and later reduced to 14%) by Dr Lai, was greater than that of the plaintiff in Doris.

16 In Karrupiah Nirmala v Singapore Bus Services Ltd [2002] 3 SLR 415 (“Karrupiah”), the plaintiff sustained hyperextension injury and was awarded $24,000 for pain and suffering and loss of amenities. The doctor explained that the ligament holding the front of the bone was tender and the joints at the back were injured and swollen. The swelling had put pressure on the nerve and caused pain. The plaintiff would have chronic neckache and episodes of radiculopathy. The injury aggravated her cervical spondylosis and accelerated its deterioration and this could, in the long term, lead to sufficient pain or neurological compromise so as to require surgery.

17 In Nirumalan V Kanapathi Pillay v Teo Eng Chuan [2003] 3 SLR 601 (“Nirumalan”), the plaintiff suffered whiplash injury to the spine with posterior disc prolapse at the C5/C6 and C6/C7 levels. His congenitally narrow spinal canal made him susceptible to complete paralysis should he suffer another jolt. His condition would continue to degenerate if there was no surgical intervention. He suffered from weakness in both hands, a stiff neck and frequent headaches. He was awarded $30,000 for pain and suffering. It would appear that the plaintiff in Nirumalan was in a far worse condition than the plaintiff in the present case who did not require any corrective surgery.

18 The AR’s award of $24,000 might appear generous when benchmarked against the $18,000 awarded in Kuan. But assessing the damages de novo on the basis of the evidence before the AR and the AR’s findings (see Teo Seng Kiat...