The Singapore Law Gazette

Demystifying the Assessment of Damages for Personal Injury Claims

The general purpose of awarding damages in personal injury cases is to compensate the victim¹TV Media Pte Ltd v De Cruz Andrea Heidi and another appeal (2004) 3 SLR(R) 543; (2004) SGCA 29 (TV Media) at (165)., ie, to restore him to his pre-injury position.²Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong (2019) 1 SLR 145; (2018) SGCA 74 (Lua Bee Kiang) at (9). But how are subjective losses such as pain and suffering assessed? Similarly, how are “forward-looking” losses assessed, such as loss of amenities, loss of future earnings, loss of earning capacity and future expenses? The Court’s answer is that personal injury awards should be “reasonable and just” and “fair” compensation, not “absolute” or “perfect”.³Lua Bee Kiang at (9). In this article, the author seeks to demystify the assessment of damages on these heads of claim, with the latest updates on case law.

Pain and Suffering

When a claimant suffers bodily or psychiatric injury, the proper terminology is a claim for the “pain and suffering” from the injury. The focus is on the physical and psychological pain that the claimant has already endured and what he will have to endure in the future.⁴Lua Bee Kiang at (48) and TV Media at (166).

Bluntly put, every injury has a “price tag”, which varies depending on its nature. The relevant factors include the injury’s location, size, severity, recovery period, how much it affects the claimant’s everyday life and whether there is any disability or long-term effects. The injury is quantified based on case precedents, ie, the Court will look at how much previous cases have awarded for an injury of a similar nature, and apply an uplift or discount depending on whether the injury in question is more or less severe. An uplift may also be applied if the case precedent is “outdated”, to take into account changes in purchasing power since the date of the decision.⁵Quek Yen Fei Kenneth (by his litigation representative Pang Choy Chun) v Yeo Chye Huat and another appeal (2017) 2 SLR 229; (2017) SGCA 29 (Quek Kenneth) at (41).

However, finding the perfect case precedent with factually analogous injury is often like finding Nemo. Thankfully, legal practitioners are assisted by the following publications which contain useful compilations of personal injury case precedents:

1. Guideline for the Assessment of General Damages in Personal Injury Cases, Academy Publishing, 2010, by the Subordinate Courts (as it was then called). It provides a range of amounts for each category of injuries, grouped according to location and severity. However, it does not go into details of each case precedent, and it is thus for broad-brush assessment.
2. Practitioners’ Library, Assessment of Damages: Personal Injuries and Fatal Accidents (Third Edition), LexisNexis, 2017, by the State Courts. It gives a summary of the various areas of law and procedure for personal injury claims, and a compilation of case summaries of the various awards for different types of injury of varying severity. As the publication has specific case precedents for comparison, it enables a finer assessment than the first publication above. The case summaries also contain awards for more complicated heads of claim, such as loss of amenities, loss of future earnings and loss of earning capacity.
3. Personal Injury: Quantum, Cases and Materials, Singapore, LexisNexis, 2014. This is similar to the second compilation above as it provides specific case precedents for various injuries, but the decisions may be slightly more dated.
4. A Guide to the Assessment of Traumatic Injuries and Occupational Disease for Work Injury Compensation (5^th Edition), compiled by the Work Injury Compensation Medical Board, Ministry of Manpower. This is useful for comparison when assessing the severity of a disability.
5. Personal Injury Tables Singapore 2015 (Tables for Calculation of Damages), Sweet & Maxwell Asia, 2014. This provides useful actuarial data in Singapore for calculation of multipliers for loss of future earnings.

Where the claimant suffered multiple injuries, the Court applies a two-stage analysis:⁶Lua Bee Kiang at (13) to (18).

1. First is the “component method”, where the loss arising from each distinct injury is accounted for and quantified. At this stage, the Court may refer to case precedents (such as the above publications) as non-binding guidelines.
2. Second is the “global method”, where the overall award must be adjusted to be reasonable and not excessive nor inadequate, by (1) accounting for “overlapping” injuries which either together resulted in pain that would not have been differentially felt by the claimant, or together gave rise to only a single disability, and (2) considering the relevant precedents to reach a fair estimate and to ensure that like cases are treated alike.

Where the injury has a possible future onset of a medical condition (eg, arthritis, dementia, muscular dystrophy, etc.), the test for proving such future loss is not on a “balance of probabilities” (because it is not possible to prove a future event as true) but whether there is an “appreciable risk”. If such a risk exists, the Court evaluates it by beginning with an award for the full extent of that future loss, and then applying a discount to take into account the remoteness of that possibility and the chance that factors unconnected with the defendant’s conduct might have contributed to bringing about that future loss. The Court is not fixated with a precise percentage for the discount because the exercise is inherently imprecise. Instead, the Court seeks to achieve fair compensation by bearing in mind that the opposing probabilities must be weighed with sympathy and with fairness for the interests of all concerned and at all times with a sense of proportion.⁷Lua Bee Kiang at (65), (66), (72) and (78).

Loss of Amenities

Loss of amenities is a distinct claim from pain and suffering: the Court is not concerned with physical and psychological pain per se, but whether the injury in issue has left the claimant any residual disability,⁸Lua Bee Kiang at (48). which reduces his enjoyment of life⁹Toon Chee Meng Eddie v Yeap Chin Hon (1993) 1 SLR(R) 407; (1993) SGHC 56 at (21). or quality of life.

This award is claimable even if the claimant is in a vegetative state, unlike pain and suffering;¹⁰Tan Kok Lam (next friend to Teng Eng) v Hong Choon Peng (2001) 1 SLR(R) 786; (2001) SGCA 27 at (28). in fact, being put into a vegetative state has been opined to be the greatest loss of amenities.¹¹Tan Juay Mui (by his next friend Chew Chwee Kim) v Sher Kuan Hock and Ors (2012) 3 SLR 496; (2012) SGHC 100 at (30). Some other examples of loss of amenities include: loss of marriage prospect;¹²Au Yeong Wing Loong v Chew Hai Ban and another (1993) 2 SLR(R) 290; (1993) SGHC 139. partial penile impotence and impaired libido;¹³Award in Tan Hun Hoe v Harte Denis Mathew (2001) 3 SLR(R) 414; (2001) SGCA 68 and the various case precedents mentioned in (60) therein. lower limb paralysis with loss of sexual function, bladder and bowel dysfunction;¹⁴Award in Lim Yee Ming v Ubin Lagoon Resort Pte Ltd and Others (Adventure Training Systems Pty Ltd, Third Party) (2003) SGHC 134 and the case precedents mentioned in (79) therein for paralysis. liver transplant patient with lower immune system, risk of renal failure and skin cancer and pregnancy risks;¹⁵TV Media at (169). being blind, wheelchair-bound and unable to speak;¹⁶Chen Qingrui v Phua Geok Leng (2001) SGHC 64. and loss of ability to pray or perform religious rituals.¹⁷Rahman Lutfar v Scanpile Constructors Pte Ltd and another (2016) SGHC 41. However, it is not necessary that the Court will invariably award a separate quantum for loss of amenities; the Court may instead award loss of amenities together with pain and suffering in a single award by increasing its quantum.

Preamble to Loss of Future Earnings and Loss of Earning Capacity

If the personal injury results in disability which affects the claimant’s ability to work, there are three types of “loss of earnings” that may be claimable, which are independent from each other:

1. The first is pre-trial loss of earnings, which compensates the actual loss of earnings suffered by the victim from the date when the defendant’s tortious act or breach occurred (Incident) from which the claimant’s cause of action accrued, to the date of the Court’s assessment of damages. This is relatively less difficult to compute as the loss must have crystallised and proven by evidence at the time of assessment.
2. The second is loss of future earnings, which compensates the difference between post-Incident and pre-Incident income or rate of income caused by the personal injury from the Incident.¹⁸Chai Kang Wei Samuel v Shaw Linda Gillian (2010) 3 SLR 587; (2010) SGCA 22 (Chai Samuel) at (20).
3. The third is loss of earning capacity, which compensates the risk or disadvantage which the claimant would suffer in the event that he loses his current job, in securing an equivalent job in the open employment market.¹⁹Chai Samuel at (20). This is separate and distinct from loss of future earnings, and both heads of claim are claimable.²⁰Chai Samuel and Quek Kenneth, where both awards were considered.

Loss of Future Earnings

The calculation method is the “multiplier-multiplicand” approach.

The multiplicand is the reduction of earnings that the claimant is expected to suffer at periodic intervals in the future. ²¹Quek Kenneth at (42). This is usually the average monthly income the claimant would have been expected to receive if the Incident had not occurred, from the Incident date to the rest of his remaining working years, minus his actual post-Incident income.

The multiplier is the mathematical tool used to calculate the lump-sum present value of the stream of future periodic losses across the claimant’s remaining working years.²²Ibid. The remaining working years is the prevailing statutory retirement age minus Incident age.²³Quek Kenneth at (52). Thereafter, the multiplier is derived by applying a discount on the remaining working years. The discount is to take into account the accelerated receipt of monies and contingencies including mortality and other vicissitudes of life.²⁴This is because a lump sum award for loss of future earnings is in effect the present value of an annuity offering a rate of return that the claimant is assumed to be able to achieve by investing the lump sum, which is traditionally assumed to be rates of 4% to 5% per annum; but the Court is not precluded from adopting a lower or higher discount rate where appropriate: see Quek Kenneth at (44) and (57) to (67). Calculating the appropriate multiplier is a difficult task, and the Court uses case precedents as well as financial and actuarial data.²⁵Quek Kenneth at (62) and (67). Where case precedents are used, the discount rate should be compared rather than the discount amount or multiplier awarded (see special formula in the case precedent in footnote).²⁶Quek Kenneth at (60) to (62) for the rationale of using discount rate, (72) for the suggested formula to calculate discount rate, which is a non-exclusive calculation method per (75), and (98) on how to apply the discount rates from case precedents to the case at hand. A larger discount rate is applied in cases of long remaining working years, whereas a low or even zero discount rate is applied for very short remaining working years.²⁷Quek Kenneth at (64), that a long expected period of future loss allows the claimant to be more well placed to ride out the short-term volatility of higher-yield investments of the lump sum award and to avail himself of increases in interest rates in the future, as compared to very short expected period of future loss where there is less scope for investment in riskier assets or for drastic changes in interest rates.

For reference, a sampling of case precedents examined by the Court²⁸Quek Kenneth at (98). is set out below:

Remaining Working Life	Multiplier for Loss of Future Earnings / Loss of Earning Capacity	Discount Amount	Discount Rate (Annual)
43 years	20 years	53%	4.27%
42 years	20 years	52%	4.21%
36 years	17 years	53%	5.00%
34 years	18 years	47%	4.35%

The Court may split the multiplier period and apply a different multiplicand to each multiplier period to take into account the different key junctures of the claimant’s career where he may be expected to receive a significant increase in salary or career advancement had the Incident not occurred.²⁹For example: Ho Yiu v Lim Peng Seng (2004) 4 SLR(R) 675; Tan Shwu Leng v Singapore Airlines Ltd & Anor (2001) SGHC 51; and Lai Wai Keong Eugene v Loo Wei Yen (2014) 3 SLR 702. However, this is not invariably done, and instead, the Court may also apply a single multiplicand but give an uplift on the amount to take into account the expected average income across the entire multiplier period.³⁰Toh Wai Sie and another v Ranjendran s/o G Selamuthu (2012) SGHC 33.

Compensation for loss of future earnings is awarded for “real assessable loss proved by evidence”.³¹Teo Sing Keng and another v Sim Ban Kiat (1994) 1 SLR(R) 340; (1994) SGCA 20 (Teo Sing Keng) at (36). Hence, if no or insufficient evidence is adduced, no award will be granted. However, even if the claimant is a young child or student who has yet to enter the labour market, the Court may still be able to derive a multiplicand if there is sufficient objective facts or evidence to enable it to reasonably assess,³²Koh Chai Kwang v Teo Ai Ling (by her next friend, Chua Wee Bee) (2011) 3 SLR 610 at (38). in particular, there must be a stream of future income that the claimant had a reasonable expectation of earning, for example, he must demonstrate that he had in fact been preparing to embark on a career.³³In Quek Kenneth at (104) and (105), the Court was unable to calculate the multiplicand because the claimant had dropped out of school without completing Secondary Three and he had a very sketch employment history – he did not demonstrate a sustained interest in or aptitude for any trade, having been dismissed on grounds of tardiness from his employment. In contrast, in AOD (a minor suing by his litigation representative) v AOE (2016) 1 SLR 217 (AOD v AOE), it was undisputed that the 9-year-old claimant would have started work at 22 years old, and the Court calculated the multiplicand by pegging it to the national averages (by averaging the commencing salaries across the eight broad occupational groups in the Ministry of Manpower tables on median gross monthly income from full-time employment).

Deductions for income tax will be made because the claimant would have had to pay for income tax even if the Incident had not occurred.³⁴Teo Sing Keng at (34).

Loss of Earning Capacity

Traditionally, even if the claimant would be disadvantaged in finding a similar paying job because of the injury and residual disability, this was insufficient to warrant awarding loss of earning capacity, unless there is a substantial or real risk that the claimant could lose his present job at some time before the estimated end of his or her working life and that the claimant will, because of the injury, be at a disadvantage in the open employment market, which are a cumulative test.³⁵Chai Samuel at (36). However, in recent times, case law appears to have loosen this requirement, and have held that the question is not whether the claimant is at risk of losing his current, post-Incident employment, but whether he has been prevented from competing in the market for his pre-Incident job.³⁶Lua Bee Kiang at (50).

The Court looks at the claimant’s weaknesses “in the round”.³⁷Chang Ah Lek and others v Lim Ah Koon (1998) 3 SLR(R) 551; (1998) SGCA 61 at (31). Some cases have interpreted this to mean that the “multiplier-multiplicand” approach (used for loss of future earnings) should not be used³⁸As was suggested in Pierre Gupson v Wong Kok Huay (2014) SGHCR 9 at (53), and Zhu You Gang v China Construction (South Pacific) Development Co. Pte Ltd Trading as China Construction Kay Lim JV and Another (2008) SGDC 33 at (15)., and instead, the Court merely undertakes a qualitative global assessment to award a lump sum amount, which would practically often result in a more conservative amount. However, there are also case precedents³⁹Quek Kenneth at (42) where the Court noted that the “the multiplier-multiplicand approach formed the basis of the assessment of damages for FME and LFE/LEC for non-fatal personal injuries in Singapore”, and subsequently applied this approach at (110) and (112) for loss of earning capacity. However, the issue of assessing it “in the round” and the cases in ibid were not raised to the Court, and thus it may be said that this issue is still be open for argument. suggesting that the “multiplier-multiplicand” approach may nevertheless be applied, but presumably, the values for the multiplicand and the multiplier are assessed “in the round”. In either method of assessment, the award for loss of earning capacity is usually lower than loss of future earnings.

No income tax deductions are applied because an award for loss of earning capacity is meant to compensate loss of a capital asset which is non-taxable.⁴⁰Teo Sing Keng at (35).

Future Expenses

Future expenses, including future medical treatment, caregiver and transport, are also claimable if there is sufficient medical evidence to prove that the claimant requires them as a result of the Incident. The challenge is often on the reasonableness of the type of expenses (eg, whether surgery or medication alone is sufficient, or whether claimant requires domestic maid or nurse, etc.) and the quantum (eg, even if the claimant requires a nurse, what is the appropriate price for nursing services).

The calculation method is the “multiplier-multiplicand” approach used above. However, for the multiplier, instead of using the “remaining working years”, the “remaining life expectancy” is used, which is pegged to the average life expectancy in Singapore⁴¹Quek Kenneth at (52) at (68). (instead of retirement age), because the expenses are required for the rest of the claimant’s life and not just his working life. However, the appropriate discount rate must still be applied on the remaining life expectancy.

For reference, a sampling of case precedents examined by the Court⁴²Quek Kenneth at (72). is set out below:

Remaining Life Expectancy	Multiplier for Future Medical expenses	Discount Amount	Discount Rate (Annual)
53 years	20 years	62%	4.8%
51 years	17 years	67%	5.89%
35 years	17 years	51%	5.10%
34 years	18 years	47%	4.51%
32 years	17 years	47%	4.78%
30 years	15 years	50%	5.72%
27 years	14 years	48%	6.00%

For long-term nursing and caring services, the claimant is entitled to claim for such expenses even if he relies on a gratuitous caregiver (ie, family members) rather than a professional caregiver (eg, nurse). Quantum is calculated by reference to the gratuitous caregiver’s loss of income and/or the commercial rates of professional caregivers with a suitable discount to be applied.⁴³Lee Wei Kong (by his litigation representative Lee Swee Chit) v Ng Siok Tong (2012) 2 SLR 85, and AOD v AOE. The Court may find that costs of a domestic helper is a more appropriate than a private nurse,⁴⁴Toon Chee Meng Eddie v Yeap Chin Hon (1993) 1 SLR(R) 407. or that the claimant requires more than one care-giver.⁴⁵AOD v AOE.

Interest Rates

Interest rate computation for personal injury damages is rather unique because different rates and accrual periods apply for different components of the award:

1. Special damages: interest rate at half of 5.33 per cent per annum from injury date to judgment date.⁴⁶Tan Hun Boon v Rui Feng Travel Pte Ltd and another (2018) 3 SLR 244; (2017) SGHC 189 at (151), following Teo Sing Keng at (50) to (55).
2. General damages: interest rate at 5.33 per cent per annum from Writ date to the judgment date, but no interest is payable on loss for future earnings and loss of earning capacity.⁴⁷Ibid.
3. Post-judgment interest: interest on judgment sum (excluding interest) at 5.33 per cent per annum from judgment dated to full payment date.⁴⁸Order 42 rule 12 of the Rules of Court, and Supreme Court Practice Directions No. 1 of 2007.

Conclusion

Assessment of damages for personal injury is not an exact science. It requires the Court to apply its mind and heart to achieve a reasonable, just and fair compensation of the total loss suffered by the claimant, as far as money allows. This requires a “human touch” that is irreplaceable by artificial intelligence, which puts our legal profession in good stead to assist.