Yip Jenn Yeuan v Ng Ah Chen

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 31 January 2005
• Neutral Citation: [2005] SGHC 21
• Court: High Court (Singapore)
• Year: 2005
• Published date: 01 February 2005
• Plaintiff Counsel: Lim Chor Pee (Chor Pee and Partners)
• Defendant Counsel: Chong Pik Wah (Lim Kia Tong and Partners)
• Subject Matter: Contract,Contractual terms,Rules of construction,Whether cause of action could arise from "without prejudice" negotiations between solicitors on behalf of clients,Formation,Whether parties intended to agree on liability and damages together or separately,Whether agreement on liability and/or quantum reached,Tort,Negligence,Damages,Whether plaintiff could pursue assessment of damages as contract claim based on agreement as to liability after tort action became time-barred
• Citation: [2005] SGHC 21

31 January 2005 Judgment reserved.

Choo Han Teck J:

1 This was an action commenced by the plaintiff to enforce a settlement agreement that he alleged had been concluded between his solicitors and the defendant’s solicitors in respect of a previous suit filed as Magistrate’s Court Suit No 14645 of 2002. In that action (“the tort claim”), the plaintiff sued the defendant for damages in negligence arising from a road accident on 27 September 2000. On that day, the plaintiff’s motorcycle collided with the defendant’s car when the defendant’s car emerged from the driveway of a motor car showroom at 911 Bukit Timah Road. The plaintiff, then 28 years old, suffered serious injuries.

2 Eventually, the solicitors agreed on the question of liability, namely, that the defendant would agree to be liable for 90% of the blame and the plaintiff would accept contributory negligence of 10% on his part. There was no agreement on quantum at all. The plaintiff’s Writ expired in the meantime and the action became time-barred on 27 September 2003. The plaintiff then commenced this action (“the contract claim”) on 2 November 2003. It was in the contract claim that the plaintiff sought a summary judgment for damages to be assessed. His application was dismissed by the deputy registrar on 6 May 2004 and he appealed to the district judge, Ms Foo Tuat Yien, who dismissed his appeal on 8 October 2004. The plaintiff then appealed to this court against the District Court’s judgment ([2004] SGDC 281).

3 The events should now be set out in detail in chronological order before the law is considered. The accident on which the tort claim was based occurred on 27 September 2000. On 3 April 2002, the plaintiff’s solicitors wrote to the defendant’s solicitors notifying them that the plaintiff was holding the defendant liable for the accident, and on 4 June 2002, the plaintiff issued the Writ of Summons in the tort claim. The defendant’s solicitors wrote to the plaintiff’s solicitors on 11 June 2002 to say that they had just been briefed and requested the plaintiff “to hold [his] hands in the matter”. That is legal parlance, particularly in tortious actions, which is understood by lawyers to mean that no further steps in the proceedings are to be taken without notifying the other party. The plaintiff’s solicitors replied the following day to say that they had not served the Writ but in any event, the Writ was inadvertently commenced in the Magistrate’s Court instead of the District Court. The letter further stated that the plaintiff would withhold service of the fresh Writ pending the defendant’s reply to the plaintiff’s solicitor’s letter of 3 April 2002 asking if the defendant would admit liability. Negotiations continued and on 14 October 2002, the defendant’s solicitors replied. The relevant portions of the reply state:

We would therefore be grateful if you could persuade/advise your client to reconsider our proposal on liability and revert.

On quantum, please be informed that our clients would like to obtain a 2^nd opinion on the need for the further operations on your client’s left ankle. Kindly let us know if your client has any objection to be re-examined by a specialist appointed by us/our clients.

On your quantification for general damages, please let us know if quantum for pain and suffering can be agreed at $20,000. For the loss of earning capacity and future medical expenses, we will revert with our clients’ instructions on same after we have received our own specialist’s report on your client’s injury.

Please let us have your client[’s] instructions on liability and on our clients’ request for a re-examination.

4 The plaintiff’s solicitors replied on 22 October 2002 to say that the plaintiff did not accept the defendant’s proposals in respect of quantum, and added that “[i]n any event, our client would like to resolve the issue of liability first before considering any reduction in quantum”. The two crucial letters forming the alleged agreement were then exchanged after that. The defendant’s solicitors wrote on 19 November 2002 to say:

We refer to your letter dated 22 October 2002.

We have our clients’ instructions to settle your client’s claim at 90%. Please take your client[’s] instructions.

As regards paragraph 4 of your letter, our clients will bear the costs of the medical re-examination and would pay the usual $50 for your client’s time and transport expenses. Please confirm your client’s agreement before we proceed to make the necessary arrangements. We will give your client at least 7 [days’] notice of the appointment date.

The plaintiff’s response on 20 November 2002 stated:

We refer to the above matter and your letter dated 19 November 2002 on which we have taken our client’s instructions.

Our client is willing purely for the sake of settlement to accept your client’s offer on liability (ie 90%-10% in our client’s favour)

Further, our client is agreeable to the terms of the last paragraph of your letter. Please let us know the appointment date.

5 More letters were subsequently exchanged concerning the medical examination of the plaintiff and, eventually, a proposal by the defendant’s solicitors on the issue of quantum. Their letter of 21 March 2003 proposed as follows:

Subject to our clients’ instructions and for an amicable settlement, we would propose agreeing to quantum on 100% as follows:

a. pain and suffering, loss of amenities … $20,000.00

b. loss of earning capacity … $12,000.00

c. medical expenses (RM310) … $155.00

d. medical expenses … $8,420.88

e. transport expenses … $268.75

f. repair costs (RM744) … $372.00

g. towing expenses … $120.00

h. damaged personal items … $100.00

i. costs and disbursements to be determined/agreed

As for the future medical expenses, we are prepared to advise our clients to follow Dr Ngian’s recommendation and to allow future medical expenses for a Pan Talar Fusion. We would however like to check with the NUH on the costs of a Pan Talar Fusion in that hospital before we revert with our clients’ offer on future medical expenses. We would therefore be grateful if you could arrange for your client to sign the enclosed Consent Form to enable us to obtain the aforesaid information.

6 Reminders were sent by the defendant’s solicitors on 28 April 2003 and 19 May 2003 for the plaintiff’s response. On 27 May 2003, the plaintiff’s solicitors wrote to reject the defendant’s offer and made a counter-offer. The defendant’s solicitors did not respond. In the meantime, the plaintiff’s Writ expired on 4 December 2002 and he had six months from that date to apply for the renewal of the Writ. This was not done, and the cause of action expired on 27 September 2003.

7 On 22 August 2003 and 16 October 2003, the plaintiff’s solicitors wrote to the defendant’s solicitors. The relevant paragraphs of the two letters stated:

We refer to our letter of 27 May 2003.

To date, we have not received any reply from you.

If your clients are not minded to accept our client’s proposal for settlement, we shall proceed with the matter, which will escalate costs.

…

We refer to the above matter and our letters to you dated 22 August 2003 and 27 May 2003 to which we have not received any reply.

As you are aware, liability was agreed 90%:10% in favour of our clients on 20 November 2002, leaving only quantum to be agreed or assessed.

8 On 21 November 2003 the plaintiff filed the contract claim based on the agreement concluded in November 2002 by the letters of 19 and 20 November 2002 of the defendant and the plaintiff respectively. The Statement of Claim in the contract claim pleaded as follows:

9.1 The Defendant admits 90% liability in respect of the said accident with the Plaintiff bearing the remainder 10% of liability.

9.2 The issue of quantum is to be disposed of by mutual agreement of the parties.

9.3 As part of the...