Thiru Kumar a/l Thanamalai v Ng Khim Han Calvin

• Jurisdiction: Singapore
• Judge: Hairul Hakkim
• Judgment Date: 16 March 2021
• Neutral Citation: [2021] SGDC 47
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 3753 of 2013, Assessment of Damages No 433 of 2018
• Published date: 06 April 2021
• Year: 2021
• Hearing Date: 25 February 2021,20 August 2020,03 November 2020,11 October 2019,06 February 2020,12 January 2021,07 December 2020,04 September 2019
• Plaintiff Counsel: Ram Chandra Ramesh (C Ramesh Law Practice)
• Defendant Counsel: Mahendra Prasad Rai and Dean Salleh (Cooma & Rai)
• Subject Matter: Damages,Assessment,Expert evidence,Failure to call expert witness,Effect on admissibility of medical report,Measure of damages,Personal injuries cases
• Citation: [2021] SGDC 47

Deputy Registrar Hairul Hakkim: Introduction

The plaintiff was involved in a road traffic accident (“the Accident”) on 25 May 2012, when the defendant’s motorcar collided into the rear of the plaintiff’s motorcycle at a road traffic junction along Jalan Ahmad Ibrahim, Singapore.

Interlocutory judgment in default of defence was entered against the defendant on 24 January 2015 with the issue of damages to be assessed and costs and interests to be reserved to the registrar hearing the assessment (“the AD Hearing”).

After I delivered my oral judgment following the AD Hearing, the defendant filed an appeal against my decision on 9 March 2021. I therefore pen these written grounds to provide my reasons for my decision.

Procedural history

I conducted the AD Hearing over four half-day tranches on 4 September 2019, 11 October 2019 and 6 February 2020 (hearing the plaintiff’s evidence) and on 7 December 2020 (hearing the plaintiff’s sole expert, Dr Tan Mak Yong (“Dr Tan”) from MY Orthopaedic Clinic). While the plaintiff had initially indicated that he had three expert witnesses as listed in DC/ORC 2640/2018 and the defendant had indicated to cross-examine all three experts, the plaintiff elected not to call two of these experts from National University Hospital (“NUH”), namely Dr Joel Louis Lim and Assistant Professor Gabriel Liu.

At this point, it is necessary to set out a brief chronology of events that preceded the plaintiff’s election not to call these two experts from NUH. After the completion of the plaintiff’s evidence at the third tranche, I convened a pre-trial conference (“PTC”) on 20 March 2020 to seek parties’ available dates for the examination of the three experts. However, counsel for the plaintiff was not ready to take the dates at that time and the PTC was then adjourned to 3 April 2020. At the adjourned PTC, the plaintiff’s counsel was still unable to take further AD dates and given the delay in the matter, I directed for a further tranche of the AD hearing to be fixed on 20 August 2020.

On 20 August 2020, the plaintiff’s counsel was likewise unable to proceed with the hearing because he was unsuccessful in securing the attendance of any of his experts due to the plaintiff’s alleged inability to pay the fees for their attendance. He accordingly requested for a final adjournment to get at least one of his expert doctors to attend for the AD Hearing. I granted this final adjournment in the interests of justice, coupled with an unless order, and with costs on an indemnity basis to be paid by the plaintiff to the defendant. The final tranche for the AD Hearing was eventually concluded on 7 December 2020 when Dr Tan gave his evidence as the sole expert witness for the plaintiff.

With the above background and before I deal with the plaintiff’s claim, I make some preliminary remarks on the parties’ conduct of their respective cases.

Preliminary remarks on the conduct of cases by parties

First, the plaintiff’s election not to call the two experts from NUH for cross-examination by the defendant had pertinent legal consequences. The legal effect of this election was that I was precluded from relying on the contents of their respective medical reports in arriving at my decision. These reports were, simply put, inadmissible hearsay evidence. If the plaintiff was still allowed to rely on the NUH medical reports at the AD Hearing to prove the severity of his injuries without allowing the defendant the opportunity to cross-examine these experts, the plaintiff would effectively be shielding these experts from cross-examination (see also Grant v The Queen [2007] 1 AC 1 at [14]). That could not be right as the plaintiff would be seeking to rely on the truth of what was being said in these medical reports (see Saga Foodstuffs Manufacturing (Pte) Ltd v Best Food Pte Ltd [1994] 3 SLR(R) 1013 at [11]). I should also add at this juncture that the plaintiff’s counsel was made aware of this consequence on 20 August 2020 when I was prepared to proceed with the matter with closing submissions without reliance on any medical evidence.

Second and related to my first observation, insofar as Dr Tan had relied on the NUH medical reports in formulating his opinion on the plaintiff’s extent of his injuries, I disregarded this aspect of his opinion as these medical reports had not been admitted in evidence. In this regard, the “basis rule” for expert witnesses necessitated that the “factual basis for the expert’s opinion must itself be established on admissible evidence and not on hearsay” (per Sundaresh Menon CJ in Anita Damu v Public Prosecutor [2020] 3 SLR 825 at [30]). The same observation was eloquently expressed by Heydon J in Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [90] (also cited in Anita Damu at [30]) as follows:

Opinion evidence is a bridge between data in the form of primary evidence and a conclusion which cannot be reached without the application of expertise. The bridge cannot stand if the primary evidence end of it does not exist. The expert opinion is then only a misleading jumble, uselessly cluttering up the evidentiary scene.

For clarity, I should state that insofar as Dr Tan’s medical opinions were based on his own physical examination conducted on the plaintiff on 18 March 2015 and/or the various reports of the magnetic resonance imaging (“MRIs”) conducted on the plaintiff, these were admissible in evidence.

My third preliminary observation stems from the defendant’s decision not to call any experts of his own (despite this not being a simplified trial but rather a District Court matter). As noted by the Court of Appeal in Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1 at [26], quoting from the Halsbury’s Law of Singapore vol 10 (Butterworths, 2000) at para 120.257:

…The court should not, when confronted with expert evidence which is unopposed and appears not to be obviously lacking in defensibility, reject it nevertheless and prefer to draw its own inferences. While the court is not obliged to accept expert evidence by reason only that it is unchallenged, if the court finds that the evidence is based on sound grounds and supported by the basic facts, it can do little else than to accept the evidence. [emphasis in original omitted; emphasis added in italics]

More recently, the Court of Appeal reiterated the point in Armstrong, Carol Ann (executrix of the estate of Peter Traynor, deceased, and on behalf of the dependents of Peter Traynor, deceased) v Quest Laboratories Pte Ltd and another and other appeals [2020] 1 SLR 133 (“Armstrong”) at [90]:

…

As this court had observed in Saeng-Un Udom, a court is not bound to accept an expert’s opinion merely because it is uncontroverted. However, a court may find that it should accept uncontroverted expert evidence if the opinion was grounded on a sound basis. Hence, it appears to us that the question of whether to accept or reject an expert’s evidence is ultimately not a question of whether and how the evidence is controverted, but whether any eventual view arrived at is supportable in logic and evidence. The court’s determination as to whether it should accept parts of an expert’s evidence (and if so which parts) is guided by considerations of consistency, logic and coherence (see Sakthivel Punithavathi v PP [2007] 2 SLR(R) 983 at [75]–[76]). This requires a scrutiny of the expert’s methodology and the objective facts he had based his opinion upon (see the High Court decision of PP v Choo Peng Kuen [2018] SGHC 230 at [64]). [emphasis in original]

With these preliminary remarks in mind, I turn now to deal with the plaintiff’s claims.

Plaintiff’s claims

The plaintiff claimed to have suffered the following injuries to his back arising from the Accident: intervertebral disc disease at L3/4 and L4/5; prolapsed intervertebral disc left L5/S1; loss of lumbar lordosis; posterior annular tear at L4/L5 vertebrae; diffuse bulging with superimposed protrusion; and radicular pain due to impingement of nerve.

Arising from the above, the plaintiff claimed the following damages: General damages: Pain and suffering for back injury: $20,000; Future medical expenses: $45,000; Loss of future earnings: $30,000; Special damages: Medical expenses: $1,101.04; Transport expenses: $300; and Pre-trial loss of earnings: $6,000.

I turn now to deal with each of his claims in turn.

General damages Pain and suffering for back injury

For the pain and suffering for the injury to his back, the plaintiff submitted for $20,000. The defendant submitted that no award should be made for this injury and in the alternative that a sum of $2,000 would be reasonable compensation.¹ In this regard, I took reference from Charlene Chee et al, Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”), and reproduce the extracts of the relevant ranges below (at pp 23–24):

Description (Severity of Injury)	Range of awards
(b) Moderate … (ii) Cases in this category include severe strain of the back ligaments and/or muscles giving rise to backaches, soft tissue injuries resulting in exacerbation of existing back condition or prolapsed discs and/or permanent or chronic disability. However, the injured person is able to cope with the activities of daily life although he may have some difficulty performing his job at the pre-trauma capacity especially if it is a labour-intensive job although substantial recovery in the long term can be achieved.	$10,000 to $17,000
(c) Minor Strains, sprains, disc prolapses, soft tissue injuries with full recovery: (i) within about five years An award in the higher range is appropriate where there is an increased vulnerability to future trauma due to the weakened lumbar spine. (ii) within about two years	$2,000 to $10,000 $2,000 or less

I turn now to...