Toh Wai Sie and another v Ranjendran s/o G Selamuthu

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 10 February 2012
• Neutral Citation: [2012] SGHC 33
• Docket Number: Suit No 324 of 2010 (Registrar’s Appeal No 334 of 2011)
• Published date: 14 February 2012
• Court: High Court (Singapore)
• Plaintiff Counsel: Leslie Yeo Choon Hsien (Sterling Law Corporation)
• Defendant Counsel: Anparasan K and Sharon Lim (KhattarWong LLP) and William Chai (William Chai Sunforester LLC)
• Subject Matter: Damages

Tay Yong Kwang J: Introduction

This appeal concerns the assessment of damages by an Assistant Registrar (“the AR”) arising from a road accident which caused injuries to a lady named Toh Wai Yee (“Wai Yee”). The defendant appealed against the decision of the AR in respect of various heads of damages awarded to the plaintiffs.

I varied the AR’s decision. Both parties have appealed to the Court of Appeal against my decision.

Background

The facts of this case are not in dispute. On 14 July 2008, Wai Yee was crossing MacPherson Road when she was knocked down by the defendant who was driving vehicle no. SGW 4425C. She was rendered unconscious and suffered fractures to her skull. She was warded at Tan Tock Seng Hospital. After her discharge from the hospital, she was looked after at home by a maid. As and when Wai Yee required medical attention, she would be brought to Changi General Hospital which was near her home at Block 1 Simei Street 3 #03-56 East Point Green, Singapore.

Subsequently, Wai Yee’s family and the maid found it increasingly harder to handle her condition and it became clear that she would require long term nursing care. Wai Yee was then moved to Orange Valley Nursing Home (“Orange Valley”) around 29 May 2009. At present, she is still in Orange Valley and remains in a persistent vegetative state (“PVS”). The plaintiffs representing Wai Yee in this action are her sister and her mother.

On 23 June 2010, this writ of summons was filed and interlocutory judgment was entered by consent on 9 September 2010 for the plaintiffs, with 80% liability to be borne by the defendant. The assessment of damages took place on 7, 8 and 30 June 2011, with the plaintiffs claiming under 4 heads: (1) pre-trial loss (medical and transportation), (2) general damages for pain and suffering, (3) recurring monthly expenses and (4) loss of future earnings. Only the latter two categories were in dispute as the parties had agreed on the sums of $114,117.58 for pre-trial loss and $100,000.00 for pain and suffering.

The AR’s decision

The AR awarded damages amounting to $2,451,274.84 (on an 80% liability basis), with interest at half of 5.33% on special damages from the date of service of writ to the date of judgment amounting to $85,528.96 and interest at 5.33% on general damages for pain and suffering from the date of service of writ to the date of judgment amounting to $5,771.00. Costs to the plaintiff were fixed at $120,000.00 plus disbursements agreed at $12,245.76.

The sum of $2,451,274.84 was derived as follows:

S/No	Item	Amount Allowed (S$)	Remarks
1	Pre-trial loss (medical and transport expenses)	114,117.58	Agreed
2	Pain and Suffering	100,000.00	Agreed
3	Nursing care costs at Orange Valley	345,452.04	Multiplicand: $3,198.63 Multiplier: 9 years
4	Preventive Physiotherapy	41,040.00	Multiplicand: $380.00 Multiplier: 9 years
5	Expenses at Changi General Hospital	32,400.00	Multiplicand: $300.00 Multiplier: 9 years
6	Loss of Future Earnings	2,113,986.04	Base salary: $6,000.00 Multiplier: 15 years Rate of salary increment: 9% per annum
7	Employers’ CPF Contribution	317,097.90	Rate of 15%
	TOTAL	3,064,093.56
	At 80% liability	2,451,274.84

The defendant’s case

The defendant appealed against the AR’s decision with respect to the following (items 3-7 of the table above) and the interest awarded: Nursing care costs; Preventive Physiotherapy; Expenses at Changi General Hospital; Loss of Future Earnings; Employers’ CPF Contribution;

Loss of future earnings and CPF contribution

While both the defendant and the plaintiffs accepted that Wai Yee’s last salary was $6000.00 per month, the defendant submitted that the AR erred in setting the projected increase in the base salary amount at 9% per annum and the multiplier at 15 years.

Projected increase in the base salary at the rate of 9% per annum

The defendant argued that the rate of 9% per annum as decided by the AR was too high for the following reasons: Wai Yee was still on 6 months’ probation in her job as a Group Financial Controller with Crystal Time (Singapore) Pte Ltd (“Crystal Time”) which employed her on 12 May 2008. There was no evidence adduced from her employers regarding her work performance nor was there any indication given as to whether she would be confirmed at the end of the 6-month probation period. The probation period could also have been extended beyond the 6-month duration. During the period of probation, she was paid $5,800pm and upon confirmation, she would receive $6,000pm. There was no evidence from Wai Yee’s employers that a person of her position and job scope would necessarily receive a 9% increase yearly. Since she was working in the private sector, her pay structure was harder to predict as much depended on the economy and her own performance. It was not shown how the plaintiffs derived the rate of increase of salary at 9% per annum. The figures for the projected salary were derived from the Financial & Accounting Asia Pacific Salary Guide 2010/2011 prepared by Robert Half Finance & Accounting in partnership with the Institute of Certified Public Accountants of Singapore (“ICPAS salary guide”) but there was no expert witness from either institute to confirm or comment on: the job title that Wai Yee would fall under, and the category which Crystal Time would fall under (small, medium or large companies). The range of salary would depend on the size of the company in question.

Additionally, the AR also failed to consider that Wai Yee’s earnings had taken a 40% dip over the past 4 years (2005-2008) prior to the accident.

Multiplier of 15 years too long

The defendant submitted that the AR’s decision to adopt 15 years as the multiplier was not supported by case authority. The AR had to consider that Wai Yee was 46 at the time of assessment and the prevailing retirement age was 62.

Further, the defendant argued that a reasonable deduction must be made for Wai Yee’s income tax liability on her future earnings, in reliance on Teo Sing King v Sim Ban Kiat [1994] 1 SLR(R) 340. It was submitted that Wai Yee, after claiming all relevant reliefs for income tax, would have to pay about 2.14% of her annual income as tax based on the rates applicable for the year of assessment 2011. The defendant therefore suggested that a 2% deduction from the award for future earnings would be reasonable. Hence the defendant’s computation for the loss of future earnings was:

Annual income ($6,000x12)	$72,000.00
Less: Income tax (2% on 80% of $72,000.00)	-($1,152.00)
Plus 15% CPF (capped at $675.00 per month)	$8,100.00
Multiplicand	$78,948.00
Multiplier	x 7 years
Loss of future earnings (inclusive of employer’s CPF contribution at 15%)	$552,636.00

I note at this juncture that tax was computed on the basis of 80% liability while the rest of the figures were calculated on the basis of 100% liability. If the tax was based on $72,000, 2% would have worked out to $1,440. Future maid care in place of nursing care

The defendant submitted that the AR erred in concluding that a domestic caregiver would not be sufficient to meet Wai Yee’s needs and that she needed the full services of a nursing home. The plaintiffs’ expert witness, Professor Ong Peck Leong (“Prof Ong”), stated that the care process could be carried out by family members if they followed the proper techniques and that this was a decision to be made by the family members. Also, the defendant’s expert witness Dr Ho King Hee (“Dr Ho”) specifically stated that there was “no need for her to be in a nursing home from a medical point of view”. Both agreed that the most critical point of Wai Yee’s recovery was the first year, in which she was adequately cared for by a domestic caregiver for 7 months, and that further affirmed the sufficiency of such help.

The defendant suggested that it was the family’s reluctance to care for Wai Yee at home that led them to prefer the nursing care option as opposed to any genuine concern for her. A competent and trained domestic caregiver would be able to attend fully to Wai Yee’s needs. The defendant therefore submitted that a multiplicand of $350.00 per month and a multiplier of 9 years be used to arrive at the sum of $37,800.00 which would be for the costs of having a domestic caregiver.

Cost of future nursing care

However if the court were to rule in favour of nursing care, the defendant submitted an amount of $2,850.95 as the average monthly cost of nursing care, based on the past invoices from Orange Valley from 1 July 2009 to 1 May 2011. In Toon Chee Meng Eddie v Yeap Chin Hon [1993] 2 SLR 536 it was held that food and lodging made up 60% of the costs of private institutional care, the other 40% being nursing care itself. Applying a discount of 60% to reflect the domestic element, the multiplicand ought to be $1,140.38 (i.e. 40% x $2,850.95). Using a multiplier of 9 years, the total costs for nursing care would be $123,161.04.

Cost of preventive physiotherapy

The defendant also submitted that preventive physiotherapy was not necessary, contrary to the AR’s decision. Dr Ho gave evidence to the effect that a domestic caregiver would be capable of providing such physiotherapy, negating the need to engage a qualified physiotherapist. In view of the cost of a domestic caregiver or of nursing care already being awarded, there was no need for this separate head of claim.

Future medical expenses at Changi General Hospital

This head of claim was factored in to account for the possibility that Wai Yee might seek occasional treatment at a hospital if she were to be cared for at home. However, in the event that the court awards the cost of future...