Case Details
- Citation: [2016] SGCA 44
- Case Number: Civil Appeal No 125 of 2015; Summons No 279 of 2015
- Decision Date: 14 July 2016
- Court: Court of Appeal of the Republic of Singapore
- Coram: Sundaresh Menon CJ and Chao Hick Tin JA
- Judgment Delivered By: Chao Hick Tin JA (delivering the judgment of the court)
- Appellant(s): Pamela Jane Mykytowych
- Respondent(s): V I P Hotel
- Counsel for Appellant: Salem bin Mohamed Ibrahim, Ismail bin Atan and Lam Zhenjie Jeriel (Salem Ibrahim LLC)
- Counsel for Respondent: Ramesh Appoo and Rajashree Rajan (Just Law LLC)
- Legal Areas: Damages; Assessment; Evidence; Admissibility of evidence
- Statutes Referenced: Evidence Act (Cap 97, 1997 Rev Ed)
- Key Provisions: Evidence Act (Cap 97, 1997 Rev Ed), s 116, Illustration (g)
- Disposition: Appeal allowed in part; the Court of Appeal adjusted the quantum of awards given by the High Court and made awards for certain heads of claim which the High Court had rejected, resulting in a final sum of $56,605.53 due to the Appellant after 50% liability apportionment.
- Reported Related Decisions: Mykytowych, Pamela Jane v V I P Hotel [2015] SGHC 113
Summary
This appeal concerned the assessment of damages following a slip-and-fall accident at a hotel reception area. The appellant, Ms Pamela Jane Mykytowych, sustained a non-displaced fracture to her left kneecap and a strained ankle. Liability for the accident was fixed at 50% for each party by consent, leaving only the quantum of damages in dispute. The appellant's primary claim was that, despite recovering from her initial physical injuries, she developed chronic pain conditions, specifically Complex Regional Pain Syndrome (CRPS) and fibromyalgia, which allegedly caused severe ongoing pain, suffering, and a complete inability to continue working in her company, Care and Performance Limited (CPL), leading to substantial financial losses.
The Court of Appeal also considered the appellant's application to adduce further evidence on appeal, applying the stringent criteria under the Ladd v Marshall test. The court largely rejected the additional evidence, finding that it did not meet the necessary thresholds for admission at the appellate stage. On the substantive appeal, the Court of Appeal allowed the appeal in part. It found that while the appellant did suffer from CRPS, its severity and debilitating effect were not as extensive as she claimed, particularly in light of objective evidence such as surveillance footage and social media posts. The court also found that the appellant had failed to prove she suffered from fibromyalgia.
Consequently, the Court of Appeal adjusted the High Court's awards. It increased the awards for pain and suffering (both for CRPS and physical injuries), loss of amenities, pre-trial medical expenses, pre-trial costs of medical equipment, pre-trial transportation costs, and the difference in business class air ticket costs. Crucially, it also made an award for loss of future earning capacity, which the High Court had rejected, and for future costs of engaging a domestic helper. However, the court upheld the High Court's rejection of claims for pre-trial and future loss of earnings, loss of a chance to sell CPL, husband's loss of income, and future medical expenses, finding these claims to be either unproven, speculative, or lacking sufficient causal nexus. The total damages awarded on appeal amounted to $113,211.06, resulting in a final sum of $56,605.53 due to the appellant after the agreed 50% liability apportionment.
Timeline of Events
- 6 April 2011: The Appellant and her husband arrive in Singapore and begin staying at the Respondent hotel.
- 7 May 2011: The Appellant slips on a puddle of water at the hotel's reception area, sustaining a non-displaced fracture of her left patella and a strained ankle.
- 10 October 2011: The Appellant commences proceedings against the Respondent in the State Courts.
- 16 November 2011: Dr Nicholas Chua assesses the Appellant's symptoms as consistent with a diagnosis of Type I CRPS.
- 23 August 2012: The suit is transferred from the State Courts to the High Court.
- 2 August 2013: The parties enter into an interlocutory judgment by consent, agreeing to bear 50% of the liability each, with damages to be assessed.
- 23 July 2013: Dr Bernard Lee examines the Appellant and diagnoses her with both CRPS and fibromyalgia.
- 11–13 February 2015: The assessment of damages hearing takes place before the High Court Judge.
- [2015] SGHC 113: The High Court Judge delivers the decision on the assessment of damages.
- 3 November 2015: The appeal hearing, including Summons No 279 of 2015 for leave to adduce further evidence, is heard before the Court of Appeal.
- 14 July 2016: The Court of Appeal delivers its judgment, allowing the Appellant's appeal in part.
What Were the Facts of This Case?
The appellant, Ms Pamela Jane Mykytowych, was a 52-year-old British citizen with a strong academic and professional background, including degrees in social administration and business. Prior to the accident, she was highly active in motorsports, having competed in long-distance endurance car races, and owned Care and Performance Limited (CPL), a company providing consultancy services in the health and social sectors. She had moved to Singapore in April 2011 with her husband, who was posted there for work, and was staying at the respondent hotel.
On 7 May 2011, while walking in flat rubber sole sandals at the hotel's reception area, the appellant slipped on a puddle of water and fell. She was taken to Tan Tock Seng Hospital (TTSH) where she was diagnosed with a non-displaced fracture of her left patella (kneecap) and a strained ankle. She received conservative treatment, including analgesia and immobilisation with a plaster cast, and was discharged the same day with pain medication and crutches. Liability for the accident was subsequently apportioned equally between the parties by consent.
Over the following months, the appellant attended follow-up appointments and physiotherapy. While initial reports from her orthopaedic specialist, Dr Ganesan Naidu, indicated good callus formation and healing of the fracture, and physiotherapy notes suggested functional improvement, the appellant continued to report significant pain. In November 2011, she was referred to pain specialists, and Dr Nicholas Chua, Head of the Acute Pain Service at TTSH, assessed her symptoms as consistent with Type I Complex Regional Pain Syndrome (CRPS).
Later, in July 2013, Dr Bernard Lee, a consultant pain specialist engaged for litigation purposes, diagnosed the appellant with both CRPS and fibromyalgia. The appellant's case at trial and on appeal was that these chronic pain conditions were directly caused by the accident, leading to severe ongoing pain, functional disability, and, crucially, her inability to continue working in CPL. This alleged inability formed the basis for substantial claims for pre-trial and future loss of earnings, loss of future earning capacity, and loss of a chance to profit from the sale of CPL.
The respondent, V I P Hotel, contended that the appellant had exaggerated her injuries and that her physical injuries had fully recovered. They disputed the causal link between the accident and the alleged chronic conditions, particularly fibromyalgia, and argued that the extent of CRPS was not as debilitating as claimed. The respondent relied on evidence such as the appellant's part-time teaching activities at MDIS, video surveillance footage showing her shopping and taking long walks, and posts from her Twitter account detailing outings and overseas trips, to suggest that she was able to lead a relatively normal life, thereby undermining her claims of severe incapacity and significant financial losses.
What Were the Key Legal Issues?
The principal legal issues before the Court of Appeal, following the High Court's assessment of damages, revolved around the quantum of compensation for personal injury, particularly in the context of alleged chronic pain conditions and their impact on the appellant's life and earning capacity. These issues were:
- Causation and Proof of Chronic Conditions: Whether the appellant's alleged chronic medical conditions, specifically Complex Regional Pain Syndrome (CRPS) and fibromyalgia, were causally linked to the slip-and-fall accident and whether their existence and debilitating extent were sufficiently proven by the evidence.
- Quantification of Economic Losses: Whether the appellant's extensive claims for financial losses, including pre-trial and future loss of earnings, loss of future earning capacity, and the loss of a chance to profit from the sale of her company (CPL), were adequately substantiated by evidence and directly attributable to the accident-related conditions.
- Admissibility of Further Evidence on Appeal: Whether the appellant's application to adduce additional medical evidence for the purposes of the appeal met the stringent criteria for admitting new evidence at the appellate stage, particularly the principles laid down in Ladd v Marshall.
- Appellate Review of Damages Assessment: Whether the High Court Judge's assessment of damages contained errors of law or principle, or was plainly wrong in its factual findings regarding the extent of the appellant's injuries and their impact, thereby warranting intervention by the Court of Appeal.
How Did the Court Analyse the Issues?
The Court of Appeal framed the dispute as being solely confined to the quantum of damages, given that liability had been fixed at 50% by consent. The court's task was to meticulously scrutinise the evidential foundation for each of the appellant's claimed heads of loss and to determine whether the High Court's assessment properly reflected the proven consequences of the accident, with a particular focus on causation and the sufficiency of proof for contested medical diagnoses and financial losses.
First, the court addressed the appellant's application to adduce further evidence on appeal (Summons No 279 of 2015). It applied the well-established Ladd v Marshall test, which requires that the evidence could not have been obtained with reasonable diligence for use at trial, is relevant, credible, and would likely have an important influence on the outcome. The court refused to admit Dr Tay's medical report, finding that the conditions of the test were not satisfied and that litigation privilege had not been waived. Other pieces of further evidence were also rejected on similar grounds, underscoring the high bar for admitting new evidence at the appellate stage.
On the medical conditions, the court distinguished between CRPS and fibromyalgia. It found that the appellant had failed to prove she suffered from fibromyalgia, noting that only Dr Lee had diagnosed it, and his evidence was not corroborated by other treating physicians. For CRPS, the court accepted that the appellant did suffer from Type I CRPS, based on diagnoses from Dr Chua and Dr Lee. However, a critical aspect of the court's analysis was its finding that "the Appellant’s CRPS is not as severe as she claims it to be" ([144]). This conclusion was drawn after considering the medical timeline, objective findings, and, significantly, the surveillance footage recorded by the respondent's private investigator and the appellant's own Twitter posts, which depicted her engaging in activities inconsistent with her claims of severe disability.
The court then proceeded to analyse each head of claim in detail. For pain and suffering arising from CRPS and loss of amenities, which the High Court had awarded $0, the Court of Appeal awarded $30,000 for each. This acknowledged the existence of CRPS and its impact on her active lifestyle, but tempered the award to reflect the court's finding that the condition was not as debilitating as exaggerated. Similarly, the award for pain and suffering for physical injuries was increased from $12,000 to $16,000, and various pre-trial expenses (medical, equipment, transportation) were increased based on a more thorough review of the evidence.
A notable adjustment was the award of $4,472.80 for the difference between business class and economy class air tickets, which the High Court had rejected. The Court of Appeal accepted that the appellant's concern about deep-vein thrombosis risk, though later ruled out, justified the business class travel at the time. However, the court maintained the High Court's rejection of claims for pre-trial and future loss of earnings, and the highly speculative claim for loss of a chance to sell CPL. It found insufficient evidence to prove that the appellant's inability to work was solely due to the accident or that CPL was profitable to the extent claimed. The court also rejected the claim for the husband's loss of income, finding no causal nexus to the appellant's condition.
Significantly, the Court of Appeal awarded $25,000 for loss of future earning capacity, which the High Court had denied. While acknowledging that the appellant, despite her CRPS, retained the ability to work and possessed qualifications for other fields (e.g., as an MDIS lecturer), the court accepted that "the Appellant may not be able to work at the same intensity or level as before due to the bouts of pain and discomfort that she may suffer as a result of her CRPS" ([142]). This disadvantage in the open employment market warranted a "rough and ready" global sum, as per authorities like Clark Jonathan Michael v Lee Khee Chung [2010] 1 SLR 209. Finally, for future costs of employing a domestic helper, the court awarded $20,000, accepting the need for occasional help with household chores due to limited mobility, but rejecting the claim for a full-time helper. The claim for future medical expenses was entirely rejected due to the appellant's failure to provide sufficient corroborating evidence, particularly regarding costs in the UK where she resided.
What Was the Outcome?
The Court of Appeal allowed the appellant’s appeal in part. The court adjusted the quantum of awards made by the High Court and made awards for certain heads of claim which the High Court had rejected. The total damages awarded on appeal amounted to $113,211.06. In light of the agreed 50% apportionment of liability, the final sum due to the Appellant was $56,605.53.
In conclusion, we allow the Appellant’s appeal in part as we have adjusted the quantum of the awards given by the Judge as well as made awards for certain heads of claim which he rejected. We set out in the table below the differences between the awards made by this court and those made by the Judge: No Head of claim Amount awarded by the Judge Amount awarded on appeal [...] Total $18,010.23 $113,211.06. (Paragraph 156)
Why Does This Case Matter?
This case is a significant authority for personal injury litigation in Singapore, particularly concerning claims involving chronic pain conditions and the evidential burden placed on claimants. The Court of Appeal's decision underscores that while a diagnosis of a chronic condition like CRPS may be accepted, the claimant must provide robust and consistent medical and objective evidence to establish both the existence and, crucially, the extent of the condition, its causal link to the accident, and the resulting functional incapacity and economic losses. The court's willingness to scrutinise claims for exaggeration, especially when contradicted by objective evidence such as surveillance footage and social media posts, serves as a critical reminder to practitioners.
The judgment also reinforces the strict application of the Ladd v Marshall test for admitting new evidence on appeal. It highlights the importance of thorough pre-trial preparation and the adduction of all relevant evidence at the initial hearing, as appellate courts will rarely permit the introduction of new material unless the stringent criteria are met. This aspect of the decision provides clear guidance on procedural diligence for litigators.
Furthermore, the case offers valuable insights into the appellate review of damages assessments. It demonstrates that while appellate courts generally defer to a trial judge's findings on quantum, they will intervene to correct errors of law, principle, or demonstrable factual misdirections that lead to an unsound award. The detailed breakdown of the adjustments to various heads of damages, including the "rough and ready" approach to loss of future earning capacity, provides practical guidance for both assessing and challenging damages awards in personal injury matters. For practitioners, this case is a touchstone for understanding the high evidential bar for complex personal injury claims and the strategic considerations in presenting and defending such cases.
Practice Pointers
- Robust Evidential Strategy for Chronic Pain Claims: For claimants alleging chronic pain conditions (e.g., CRPS, fibromyalgia), ensure comprehensive and consistent medical evidence from multiple specialists, corroborated by objective findings. A single specialist's diagnosis, especially if obtained solely for litigation, may be insufficient if not supported by the overall medical history and other treating physicians.
- Anticipate Scrutiny of Exaggeration: Advise clients that defendants will actively seek evidence (e.g., surveillance footage, social media posts, contemporaneous activities) to challenge the claimed extent of disability or pain. Inconsistent conduct or statements can severely undermine credibility and the entire claim. Ensure the client's narrative aligns with all available objective evidence.
- Meticulous Quantification of Economic Loss: Claims for loss of earnings or earning capacity require more than mere assertions. Provide robust financial evidence demonstrating a clear causal link between the injury and the inability to work. Be prepared to show how the alleged incapacity translates into measurable loss, considering the claimant's work history, business operations, and contemporaneous circumstances.
- Strict Adherence to Appellate Evidence Rules: The Ladd v Marshall test for admitting further evidence on appeal is strictly applied. Ensure all relevant and available evidence is adduced at trial. New evidence will generally only be admitted if it could not have been obtained with reasonable diligence for trial and would likely have an important influence on the outcome.
- Plead All Heads of Claim with Specificity: While some flexibility exists, it is prudent to plead all heads of claim and their estimated quantum with as much specificity as possible from the outset. Significant deviations or new claims introduced late in proceedings may face resistance or require formal amendment.
- Causal Nexus for Ancillary Claims: For claims such as "difference between business class and economy class air tickets" or "future costs of engaging a domestic helper," establish a clear and medically supported causal nexus to the injury, demonstrating necessity rather than mere convenience. The court will scrutinise whether such expenses are truly necessitated by the injury.
- Comprehensive Proof for Future Medical Expenses: Claims for future medical expenses require detailed and corroborated evidence of the necessity, type, frequency, and cost of treatments. This is particularly crucial if the claimant resides in a different jurisdiction with a different healthcare system (e.g., UK NHS). Generic or tentative expert opinions without specific costings or corroboration will likely be rejected.
Subsequent Treatment
As a decision of the Court of Appeal, Mykytowych, Pamela Jane v V I P Hotel [2016] SGCA 44 is binding on all lower courts in Singapore. It serves as a significant precedent for the assessment of damages in personal injury cases, particularly those involving chronic pain conditions and claims for substantial economic losses. The case codifies and reinforces the stringent evidential requirements for proving the existence and extent of such conditions, their causal link to the accident, and the precise quantification of resulting losses.
This judgment is frequently cited for its detailed application of the Ladd v Marshall test for admitting further evidence on appeal, providing clear guidance on the high threshold that must be met. It also stands as authority for the court's approach to scrutinising claims of exaggeration, especially when contradicted by objective evidence. While the specific quantum of damages will always be fact-dependent, the principles articulated regarding causation, proof, and the "rough and ready" assessment of loss of future earning capacity are regularly applied in subsequent personal injury cases in Singapore.
Legislation Referenced
- Evidence Act (Cap 97, 1997 Rev Ed), s 116, Illustration (g)
Cases Cited
- Mykytowych, Pamela Jane v V I P Hotel [2015] SGHC 113: The High Court decision from which the appeal was brought.
- Ladd v Marshall [1954] 1 WLR 1489: Cited for the three-stage test for admitting further evidence on appeal.
- Smith v Manchester Corporation [1974] 17 KIR 1: Cited for the proposition that an award for loss of future earning capacity is a form of general damages.
- Fairley v John Thompson (Design & Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40: Cited for the proposition that an award for loss of future earnings is a form of special damages.
- Moeliker v A Reyrolle and Co Ltd [1977] 1 All ER 9: Cited for the principle that the multiplicand and multiplier method is not appropriate for calculating awards for loss of future earning capacity.
- Clark Jonathan Michael v Lee Khee Chung [2010] 1 SLR 209: Cited for the "rough and ready" approach to assessing damages for loss of future earning capacity.
- Chai Kang Wei v Tay Kah Chuan [2012] 2 SLR 1133: Cited for the distinction between awards for loss of future earning capacity and loss of future earnings.