Rajendran a/l Palany v Drill-Quip Asia Pacific Pte Ltd
[2004] SGHC 100

11        Counsel for the appellant submitted that the assistant registrar had erred in her award for general damages for pain and suffering. The appellant relied on the evidence of his expert, Dr Pillay, who concluded that there was recurrence of the PID of the L4–L5 disc. In addition, Dr Pillay had also observed that there was degeneration of the L1–L2 disc.

12        In my view, a fair summary of the evidence led on behalf of the appellant on the issues of pain and suffering may be stated within a reasonably brief compass. The evidence supported the decisions of the assistant registrar. On the question of the recurrence of the PID, Prof Tay said in evidence that the appellant did not have recurrent PID. What the appellant had was “residual backache from the accident”. Prof Tay examined the appellant in July 2001. He formed the view that the appellant did not need another back operation.

13        After the appellant was discharged from routine care in August 1999, he was again medically examined in May 2000. Dr Mitra thought it was a back strain. Dr Mitra was specifically asked about Dr Pillay’s opinion that there was recurrent PID. Dr Mitra was of the view that there was none when he last saw the appellant in May 2000. With regard to the view of Dr Pillay that the appellant should have another operation to fuse the lumbar vertebrae, Dr Mitra explained that it was common to have backache after spine surgery. The treatment was usually conservative and surgery was not resorted to. If another operation was carried out, there would be further backache. He explained that fusion was only for the situation where the spine was unstable. That was not the situation in the case of the appellant.

Facetal osteoarthritis and spondylosis

14        With regard facetal osteoarthritis, Dr Mitra opined that the appellant has degenerative disc and this would usually develop into osteoarthritis in the long run. He did not think there was malalignment. Where there was degenerative disc, in which case the water content of the disc would disappear, the height of the disc would decrease and the disc would be less able to absorb shock. In this case, the degeneration was caused by the prolapsed disc and manual work. Dr Mitra stated that ageing causes degeneration as well.

15        In relation to spondylosis at L4–L5, there was no evidence proving that the appellant was suffering from this disability. As for the degeneration of the L1–L2 disc, there was no evidence that this was caused by the accident. There was no causal link to the PID which occurred at L4–L5, another part of the spine.

16        The appellant relied on Teng Kui Thai v Goh Chwee Kim [1996] SGHC 219 where there was an award of $20,000 for pain and suffering for back injuries resulting from a degeneration of three lumbar discs. The case of Lim Ai Geok v Ang Gim Choon [1999] Mallal’s Digest 1231, was also relied on. The sum of $22,000 was awarded for PID leading to severe disc degeneration in the lower four discs. There was difficulty in flexion of the spine. I agreed with the assistant registrar that the award for PID must reflect the differences which were due to the more severe injuries recorded in the two cases.

17        The assistant registrar awarded $13,000 for the perforated duodenal ulcer. There was no merit in the appellant’s submissions that the injuries in terms of pain and suffering were more serious than those suffered in Tan Guat Chye v SBS (1978) Ltd (District Court Suit No 1946 of 1997). There were no authorities dealing with an operation for perforated ulcer. Some guidance may be gleaned from the case of Ho Kiat v Ngo Siong Hong [1986] 1 MLJ xcii, where an award of $12,000 was given for an operation to the abdomen, involving perforation of a part of the duodenum, tears to the colon and adhesion of the anterior part of the stomach.

Future surgery and medication

18        I now turn to the claims for future medical surgery and future medication. On the evidence recited, I agreed with the finding of the assistant registrar that the appellant had not shown, on a balance of probabilities, that he required another back operation.

19        However, I was persuaded that on the evidence of Dr Pillay, the appellant was entitled to an award for future medication for the treatment of his backache. That there was backache was common ground and, on the evidence, the appellant needed medication to relieve the backache.

Loss of future earnings

20        The most substantial claim was for loss of future earnings. The assistant registrar rejected the multiplicand of $2,000 per month as this was almost double the basic pay of the appellant when he was at his best earning capacity. She also rejected the multiplier of 13. The reasons were as follows. The appellant had not lost his job at the time of the assessment.

21        At the time of the assessment, the appellant was just under 38 years of age. He had been in the employ of the respondent since 1994. He was able to carry out light work but he pretended that he could not do even light semi-skilled work.

22        The assistant registrar found that the appellant was a malingerer. There was ample evidence to support this finding. The appellant took rather extended medical leave: in year 2000, he took 83.5 days and in the following year he took a total of 176.5 days of medical leave; in the year 2002 he was on medical leave for a total period of 175 days. How did he obtain so much leave? The appellant “shopped around for doctors and medical leave”, as submitted by counsel for the respondent. In Johor Bahru, where he was living at the time of the assessment, he consulted the doctors in ten different clinics. In Parit Buntar, Perak, Malaysia, where he visited his family, he consulted the doctors in 13 different clinics. He took care not to consult the same doctor on consecutive visits to them. He gave the lame excuse that the preceding clinic, coincidentally, was always closed.

23        At every consultation, the appellant failed to inform the examining doctor that he had seen another doctor and was taking medicine prescribed by the other doctor. He also did not disclose the medicine that he had taken.

24        Prof Tay was told of the appellant’s claim that it hurt whenever he turned his body at the waist and whenever he bent backwards slightly. Prof Tay said he was surprised. He had carried out a test which did not support the appellant’s claims. The professor opined that the appellant suffered “at most bearable pain” whenever he bent forward to touch his knees.

25        Mr Harrison testified that the appellant pretended that he was unable to do light semi-skilled work at the respondent’s factory and warehouse. He was assigned the jobs of cleaning and helping with pressure testing. From the end of 1998 to the year 1999, the respondent’s business dropped and overtime and salary were frozen.

26        I refer to Leong Mei Li Janice v Low Mun Seng (District Court Suit No 3408 of 1997). In this case, a 25-year-old flight stewardess suffered a PID. The pain associated with this injury was more severe than the pain caused by scolosis. There was likelihood of future deterioration. She was working as a leading stewardess at the time of the assessment. She was awarded $12,000 for loss of earning capacity. She was not awarded any general damages for loss of future earnings.

27        I need also to refer to Teng Kui Thai v Goh Chwee Kim ([16] supra). The plaintiff, a 26-year-old female at the time of the traffic accident, suffered a lumbar injury and was unable to practise her occupation as a seamstress. She was working as a production operator at the time of the assessment. She was awarded $73,000 (in round figures) for loss of future earnings; the multiplicand on the facts was $511 per month and the multiplier was 12. The appellant in the present case could have continued to work in light semi-skilled work and upgraded himself to ISO certification level. He malingered instead.

28        I was of the view that the assistant registrar was amply justified in refusing to award general damages for any loss of future earnings. Malingerers cannot expect to have a free ride.

Loss of earning capacity

29        It was common ground that the appellant would no longer be able to carry out heavy semi-skilled manual work. But he could have done light semi-skilled manual work. He was not an unskilled manual worker. The appellant could have upgraded himself to fall in line with the programme of the respondent to obtain ISO certification. His colleagues succeeded. But for his malingering attitude, he could have earned more. I was of the view that the award of $20,000 as general damages was reasonable.

Special damages for loss of earning capacity

30        The assistant registrar decided to award the appellant damages under this head from the time of the accident until the end of 1999, a period of 19 months. His average overtime pay was $1,082 per month for the period for the whole of 1997 and four and a half months in the year 1998. The assistant registrar accepted the evidence of Mr Harrison and found that from the year 2000 the appellant was seldom offered overtime because he “simply was not around”. He was a malingerer. The award was therefore ($1,082 x 19) = $20,558.00. There was, in my view, no reason to interfere with this assessment.