Teo Ai Ling (by her next friend Chua Wee Bee) v Koh Chai Kwang

• Jurisdiction: Singapore
• Judge: Steven Chong JC
• Judgment Date: 12 February 2010
• Neutral Citation: [2010] SGHC 54
• Date: 12 February 2010
• Docket Number: Suit No 421 of 2007 (Registrar’s Appeal Nos 383 and 385 of 2009)
• Published date: 24 February 2010
• Plaintiff Counsel: Tang Gee Ni and Chris Chng (GN Tang & Co)
• Hearing Date: 16 November 2009
• Defendant Counsel: Madan Assomull and R Radikamalar d/o Rada Krishnan (Assomull & Partners)
• Court: High Court (Singapore)
• Subject Matter: Assessment,Damages

Steven Chong JC: Introduction

Both appeals before me are appeals against damages awarded by the Assistant Registrar (“the AR”) to the plaintiff. The plaintiff was crossing Woodlands Avenue 3 when she was struck and knocked down by the defendant riding motorcycle No AX 7777H along the same road towards Bukit Timah Expressway on 12 July 2004. At the time of the accident, the plaintiff was 17 years old. The issue of liability for the accident was settled between the parties and by consent, interlocutory judgment was entered at 60% in favour of the plaintiff on 27 November 2007.

The appeals raised interesting questions, in particular, whether the plaintiff who was a student at the time of the accident and the assessment should be limited to a claim for loss of earning capacity instead of loss of future earnings.

Damages were assessed by the AR on 6 October 2009. The AR awarded general damages of $286,000 on a 100% basis, broken down as follows: $70,000.00 for pain and suffering for her physical head injuries; $25,000.00 for her cognitive injuries; $5,000 for hearing loss; $8,000 for fracture of right clavicle; $32,000 for eye injuries; $12,000 for pelvic fractures; $14,000 for open fracture of left tibia; and $120,000 for loss of earning capacity.

In addition, the AR awarded special damages of $16,563.14 for medical bills and expenses, $345.20 for transport and $534.10 for tuition fee paid to Ngee Ann Polytechnic. As liability was agreed at 60%, the general damages and special damages awarded to the plaintiff were $171,600 (60% of $286,000) and $10,465.46 (60% of $17,442.44) respectively totalling $182,065.46. Interest at half of 5.33% from date of service of writ to date of judgment was awarded for the special damages while interest at 5.33% was awarded from date of service of writ to date of judgment for the damages for pain and suffering.

In Registrar’s Appeal No 383 of 2009, the plaintiff’s appeal was for an increase in the award for pain and suffering for the head and cognitive injuries, and for an award based on loss of future earnings instead of loss of earning capacity or alternatively for an increase in the award for loss of earning capacity. Registrar’s Appeal No 385 of 2009 is the defendant’s appeal against the quantum awarded for all the heads of damages awarded by the AR. The defendant submitted that the total amount awarded was too high and should be reduced to $135,442.47. This is even lower than the amount of $185,442.47 submitted by the defendant before the AR. This becomes even more apparent when the individual heads for pain and suffering are examined below. It is not good practice for counsel to submit a sum which is substantially lower than that submitted in the court below unless there is some compelling and good reason to do so. No explanation was provided by the defendant’s counsel for the lower figure in the appeal before me. I should add that the chances of succeeding in the appeal or resisting a cross-appeal are not improved by adopting such a position.

Background Facts

The plaintiff achieved good academic results in her primary education and scored 243 in her Primary School Leaving Examinations (“PSLE”) in 1999. She then achieved seven ‘O’ level passes in her GCE ‘O’ Level Examination in 2003. At the time of the accident, the plaintiff was a first year student at Ngee Ann Polytechnic and was pursuing a Diploma in Business Studies. After the accident, Ngee Ann Polytechnic allowed her to defer her studies. She was permitted to resume her education almost 3 years later in April 2007.

After the accident, the plaintiff was admitted to National University Hospital (“NUH”) where she remained warded until 17 August 2004. She was subsequently transferred to Tan Tock Seng Rehabilitation Centre and was discharged on 6 October 2004. Therefore, she spent a total of 36 days in hospital and 51 days in rehabilitation. Thereafter, she was on hospitalisation leave until 13 August 2005.

For the assessment, the plaintiff called two witnesses of fact, the plaintiff and her mother, and six medical experts. They were Dr Yeo Seng Beng (“Dr Yeo”), Dr Chong Piang Ngok (“Dr Chong”), Dr Chou Ning (“Dr Chou”), Dr Stephen Teoh Charn Beng (“Dr Teoh”), Ms Elizabeth Pang Peck Hia (“Ms Elizabeth Pang”) and Dr Lim Yun Chin (“Dr Lim”). The defendant only called one witness, Dr Calvin Fones Soon Leong (“Dr Fones”), as an expert witness. In respect of the defendant’s other expert witness, Dr W C Chang, the parties had agreed to the admission of his reports, dispensing with his attendance in court.

Extent of the plaintiff’s injuries

Dr Chou is Head of Neurosurgery Division and Senior Consultant Neurosurgeon at NUH and Alexandra Hospital and a Clinical Senior Lecturer at the National University of Singapore. According to Dr Chou, the plaintiff’s Glasgow Coma Score when she was first admitted to NUH on 12 July 2004 was 10. She was immediately intubated and ventilated. X-Rays revealed that she had a fractured right clavicle, pelvic fracture and an open left tibia fracture. She was bleeding from both nose and ears. There was a scalp haematoma over the right occipital region and a cerebral oedema with a base of skull fracture. She had to undergo an insertion of intra-cranial pressure monitor and an external fixation of her left tibia and pelvis. She also underwent a craniectomy with an evacuation of clot for a large extradural haematoma. Post-operatively, she underwent ventilation and sedation. A tracheostomy was carried out for bronchial toilet and airway control.

The plaintiff was warded at NUH until 17 August 2004 when she was transferred to Tan Tock Seng Hospital (“TTSH”) where she required ophthalmic and ENT care. According to Dr Teoh, an Associate Consultant in the Department of Ophthalmology at TTSH, the plaintiff suffered a left traumatic facial nerve palsy complicated by lagophthalmos, vitreous haemorrhage to left eye, right corneal scar secondary to exposure keratopahthy and traumatic right optic neuropathy. She is now blind in the right eye.

According to Dr Yeo, who is a Senior Consultant in the Department of Otolaryngology at TTSH, the plaintiff was diagnosed with left facial weakness from traumatic seventh cranial nerve palsy and bilateral conductive hearing loss from the temporal bone fractures. She required left ear surgery on 28 April 2005 and right eye surgery on 13 October 2005 to correct these problems.

Dr Chong is a consultant neurologist and physician with P N Chong Neurology Clinic at Mount Elizabeth Medical Centre. Dr Lim is a consultant in psychological medicine at Raffles Hospital. Ms Elizabeth Pang is a consultant clinical psychologist with the Raffles Counselling Centre at the Raffles Hospital. Their expert evidence was primarily in the area of the cognitive injuries suffered by the plaintiff.

Dr Chong conducted an examination of the plaintiff on 10 April 2008. He was of the opinion that although blindness in the eye is a serious handicap, the more serious problems related to her cognitive dysfunction. The cognitive deficits will affect most jobs which require mental judgment. Her bad mood can affect relationship in working places.

According to Dr Lim, who conducted a mental state examination of the plaintiff with reference to the reports prepared by Dr Yeo, Dr Teoh, Dr Chou and Dr Chong, there was a deterioration of the plaintiff’s intellectual functioning from her pre-accident state. Her memory impairment appeared to be more severely affected even with her current low level intellectual functioning. According to Dr Lim, apart from cognitive disability, her social competence would also be impaired because of her emotional instability as well as her understandable reluctance to engage in social interaction.

Ms Elizabeth Pang examined the plaintiff on 11 and 14 June 2008 some four years after the accident. She conducted a number of tests to determine the plaintiff’s intellectual functioning. According to Ms Elizabeth Pang, the plaintiff’s overall current functioning was within the Low Average intellectual range. This was likely to be a deterioration from her estimated pre-morbid level of functioning. She had greater difficulty in retaining complex visual material. Based on her pre-morbid academic functioning, it was estimated that the plaintiff would have to be functioning at least within the average range in order to attain her academic qualifications. There had been an overall deterioration in her memory functioning. In respect of her memory, the plaintiff was performing at a level that was lower than expected given her current intellectual functioning. All of the memory indices, except for one, were within the extremely low to borderline range. According to Ms Elizabeth Pang, the greatest cognitive gains would have been achieved within the first six months after the onset of an acute non-progressive brain condition. The patient’s functioning would have stabilized somewhat by the third year after the accident. Since it had already been four years after the accident, Ms Elizabeth Pang opined that it was unlikely that the plaintiff would demonstrate further substantial improvement in her cognitive functioning. The defendant’s expert shared the same view that the plaintiff’s cognitive condition was unlikely to improve after all these years.

Dr Calvin Fones is a Consultant Psychiatrist in private practice. He is also an Adjunct Associate Professor with the Centre for Biomedical Ethic & Department of Pyschological Medicine at the Yong Loo Lin School of Medicine, NUS. Dr Fones examined the plaintiff on 4 August 2008. He also had copies of the inpatient discharge summary from TTSH, as well as the reports from Dr Yeo, Dr Teoh, Dr Chou Ning, Dr Chong, Ms Elizabeth Pang and Dr Lim.

Dr Fones came to the conclusion that the plaintiff probably suffered from traumatic brain injury with cognitive deficits and personality change....