Yap Boon Fong Yvonne v Wong Kok Mun Alvin and another

• Jurisdiction: Singapore
• Judge: Andrew Ang SJ
• Judgment Date: 01 February 2018
• Neutral Citation: [2018] SGHC 26
• Court: High Court (Singapore)
• Docket Number: Suit No 265 of 2014
• Year: 2018
• Published date: 12 December 2018
• Hearing Date: 31 March 2017,30 March 2017,28 March 2017,31 July 2017,05 April 2017,29 March 2017
• Plaintiff Counsel: Neo Kee Heng (Hoh Law Corporation)
• Defendant Counsel: Narayanan Ramasamy and Daniel Cheong (Tan Kok Quan Partnership)
• Subject Matter: Damages,Measure of damages,Personal injuries cases
• Citation: [2018] SGHC 26

Andrew Ang SJ: Introduction

This suit arose out of a road traffic accident that took place on 12 July 2011 at the T-junction of Woodlands Avenue 12 and Woodlands Avenue 5. The accident involved (a) the first defendant Wong Kok Mun Alvin (“Wong”), who was then riding motorcycle no. FT2921C, (b) the plaintiff (“the Plaintiff”), who was then riding pillion on the motorcycle, and (c) the second defendant, who was then driving motor lorry no. YK9094R. The lorry was travelling in the opposite direction of the motorcycle and collided into it while making a right turn into Woodlands Avenue 5.

As a result of the accident, the Plaintiff suffered a fracture dislocation of her right elbow, a fractured right patella, fractured radius and ulna, and a comminuted segmental fracture of her right tibia. She was bedridden for the first few months following the accident.¹ While her upper limb injuries healed without complications, the Plaintiff continued to have problems with her tibia, which required bone grafting.² On 24 April 2013, the Plaintiff underwent examination and it was found that she had 20 degrees of external rotation and 20mm of shortening of her right tibia. The Plaintiff opted for reconstructive surgery using an Ilizarov frame. One of the Plaintiff’s medical experts, Dr Chang Haw Chong (“Dr Chang”), described the Ilizarov procedure as follows:³

It involves putting wires, metal rings around the outside of the leg for a long period of time and stretching the---the two rings ... [by] four turns a day. Each turn is a quarter of a millimetre. So you are basically pulling your leg longer every day by 1 millimetre.

The reconstructive surgery was undertaken on 13 August 2013. This was but the first step in a long process. The Plaintiff subsequently went through several more surgical procedures related to the Ilizarov procedure and also to treat site infections, including one to remove three Ilizarov pins on 16 January 2014 and another to remove the Ilizarov frame and to apply a plaster cast on 15 July 2014.⁴ While the procedure succeeded in achieving equalisation of her right lower leg length and correction of the external rotation, there was a setback when the Plaintiff’s right tibia fractured two weeks after the frame was removed. Her right tibia was re-cast and she was required to use a wheelchair and crutches to get around.⁵ Since then, fortunately, the Plaintiff’s condition has improved. She no longer requires a wheelchair for travelling short distances even when she is outdoors, although she uses a walking stick occasionally.⁶ She still experiences pain if she walks for a prolonged duration.

As can be seen, the Plaintiff endured a long and painful recuperation period. She was given a total of 1,310 days of medical leave from the date of the accident until 13 January 2015, the date of her first affidavit of evidence-in-chief.⁷ Thereafter, she obtained further medical leave for the period spanning February 2015 to June 2016.⁸

The Plaintiff filed her writ of summons on 10 March 2014. Wong did not enter appearance and thus on 2 June 2014, interlocutory judgment in default of appearance under O 13 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules”) was entered against him in favour of the Plaintiff with damages to be assessed.⁹ On the same day, interlocutory judgment in default of defence under O 19 of the Rules was entered against the second defendant in favour of the Plaintiff with damages to be assessed.¹⁰

The trial on quantum was heard before me on 28–31 March and 5 April 2017.

The Plaintiff relied on the evidence of three medical experts: Dr Chang, a Consultant Orthopaedic Surgeon at HC Chang Orthopaedic Surgery Pte Ltd at Gleneagles Medical Centre; Dr Jeffrey Tan Gek Meng (“Dr Tan”), a Senior Consultant in the Department of Orthopaedic Surgery at Khoo Teck Puat Hospital; and Dr Chong Si Jack (“Dr Chong”), an Associate Consultant in the Department of Plastic, Reconstructive & Aesthetic Surgery at Singapore General Hospital.

The defendants called only one expert witness – Dr Sarbjit Singh (“Dr Singh”), a Consultant Orthopaedic Surgeon with the Centre for Advanced Orthopaedics: Limb Reconstruction & Lengthening at Mount Elizabeth Medical Centre.

Undisputed items of damages

The parties reached agreement on the following items: General damages for pain and suffering (inclusive of interest) at $108,000; Special damages for medical expenses at $18,941.85; and Special damages for transport for medical treatment at $2,000.

Disputed items of damages

The following are the items in dispute: General damages: Future medical expenses and future transport for medical treatment; Loss of future earnings and/or loss of earning capacity; Special damages: Domestic helper expenses; and Pre-trial loss of earnings.

I will deal with the heads of claim relating to future medical expenses and related transport expenses, and domestic helper expenses in that order.

Future medical expenses and future transport for medical treatment

The Plaintiff claimed a total of $102,980 under this head of claim, as per the following breakdown:

	Description	Amount
(a)	Intra-articular visco-supplementation or steroid injection	$480
(b)	Right ankle supramalleolar/tibia realignment osteotomy (inclusive of hospital charges)	$10,000
(c)	Ankle fusion (inclusive of implants and hospital charges)	$12,000
(d)	Total ankle replacement (inclusive of implants and hospital charges)	$20,000
(e)	Scar excisions and fat grafting	$20,000
(f)	Tissue expansion surgery	$30,000
(g)	Follow-up reviews and treatments/medication (estimated)	$10,000
(h)	Future transport for medical treatment	$500

The defendants, on the other hand, submitted that the Plaintiff was at best entitled to $13,400. The defendants’ case was essentially that the Plaintiff did not require the ankle-related procedures listed at (a) to (d) in [12]; instead, the Plaintiff’s ankle stiffness could be resolved by one round of Botox and physiotherapy.¹¹ As for the future cosmetic procedures listed at (e) and (f) in [12], the defendants disputed the Plaintiff’s suitability for those procedures.¹² The defendants thus submitted that the Plaintiff was entitled only to: $2,400 for Botox and ten sessions of physiotherapy for her ankle stiffness/pain; $10,000 for scar excisions and fat grafting only if this court were to find that the Plaintiff has discharged her burden of proof that she is suitable to undergo the procedures recommended by Dr Chong; and $1,000 for follow-up reviews and future transport for medical treatment (estimated).

I will deal first with the ankle-related procedures.

Ankle-related procedures

The Plaintiff relied on Dr Chang and Dr Tan’s evidence to support her submissions that the Plaintiff may be required to undergo supramalleolar osteotomy in the event of the onset of early osteoarthritis, and that the Plaintiff may require ankle fusion in light of the pain from osteoarthritis.¹³ The Plaintiff also relied on Dr Tan’s report dated 18 July 2016 to argue that the Plaintiff may require intra-articular visco-supplementation injections for temporary pain relief before ankle fusion.¹⁴ Finally, the Plaintiff relied on Dr Tan’s oral testimony that the Plaintiff may require total ankle replacement once she reaches 60 or 65 and her ankle osteoarthritis worsens.¹⁵

As can be seen, the Plaintiff’s claims were premised on (a) the Plaintiff having developed or having a pre-disposition to early ankle osteoarthritis and (b) continuing to suffer from ankle pain as a result. The defendants disputed both premises. Both sides’ experts also proposed different treatments to treat the Plaintiff’s ankle pain.

I will first set out the parties’ cases relating to the issue of ankle osteoarthritis. In Dr Chang’s report dated 16 July 2015, he observed that the Plaintiff’s right ankle oblique joint line together with the diffuse chondral thinning pre-disposed the Plaintiff to early osteoarthritis of that joint because it caused excessive asymmetrical loading to the lateral aspect of her right ankle joint. In court, Dr Chang clarified his view that the thinning of the cartilage was itself evidence that ankle osteoarthritis had already set in.¹⁶

Dr Tan also testified that there was evidence of early ankle osteoarthritis. He pointed to the fact that both X-ray examination and the magnetic resonance imaging (“MRI”) results showed degenerative changes to the Plaintiff’s right ankle.¹⁷ Dr Tan also pointed out that even Dr Singh had in his clarification medical report dated 9 March 2017 agreed that the X-rays showed “mild degenerative changes in the ankle joint”.¹⁸

On the other hand, according to Dr Singh, the Plaintiff did not have a predisposition to ankle arthritis.¹⁹ Dr Singh testified that in his view, the Plaintiff presently displayed no features of ankle osteoarthritis, and that the probability of her developing ankle osteoarthritis in the future was “less than 50%”.²⁰ In response to the MRI report which showed thinning of cartilage on the Plaintiff’s right ankle, Dr Singh said that the thinning of cartilage was not a known factor indicating pre-disposition for ankle osteoarthritis and in any event, the thinning in the present case was observed below the ankle joint.²¹ Dr Singh further emphasised that the radiologist who had performed the MRI, an independent and experienced expert in this specific field, did not diagnose the Plaintiff with ankle osteoarthritis.²² Accordingly, in his view, there was no need for the Plaintiff to undergo supramalleolar osteotomy or ankle fusion as recommended by Dr Chang and Dr Tan.²³

I next set out the parties’ cases relating to the ankle pain suffered by the Plaintiff. According to Dr Singh, the Plaintiff’s ankle stiffness and pain were...