Case Summaries

Yap Boon Fong Yvonne (Ye Wenfeng Yvonne) v Wong Kok Mun Alvin and another and another appeal [2018] SGCA 80

SUPREME COURT OF SINGAPORE

26 November 2018

Case Summary

Yap Boon Fong Yvonne (Ye Wenfeng Yvonne) v Wong Kok Mun Alvin and another and another appeal [2018] SGCA 80
Civil Appeals Nos 33 and 35 of 2018

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Decision of the Court of Appeal (delivered by Judge of Appeal Steven Chong)

CoA allows appeal in part against HC’s assessment of damages; clarifies that our law does not recognise claims in general damages for pre-trial losses of earning capacity, only claims in special damages for pre-trial losses of earnings

Pertinent and significant points of the judgment

  • The court declined to recognise a claim for pre-trial loss of earning capacity. Any loss actually incurred by a plaintiff prior to the date of the trial had to be capable of being proved by the plaintiff as a matter of special damages.

     

Background

1          These cross appeals arose from the High Court’s assessment of damages suffered by Ms Yap Boon Fong Yvonne (“Ms Yap”), the appellant in Civil Appeal No 33 of 2018 (“CA 33”) and respondent in Civil Appeal No 35 of 2018 (“CA 35”), following a road traffic accident between the parties.

The material facts

2          As a result of the accident which took place on 12 July 2011, Ms Yap suffered severe injuries. She was bedridden for a few months and given a total of almost five years of medical leave from the date of the accident to the date of the trial.

3          At the time of the accident, Ms Yap was one of two equity partners in a partnership alongside Mr Wong Kok Mun Alvin (“Mr Wong”), the 1st respondent in CA 33 and 1st appellant in CA 35. She had joined the firm in November 2008. Until 2010, the firm was in the business of providing digital imaging services. In early 2011, just months prior to the accident, the partnership began operating under a different business model and started providing accounting and information technology services instead. Ms Yap handled the accounting, human resource management, sales and business development aspects of the business and was required to travel frequently within Singapore and occasionally overseas.

4          In June 2010, just a month prior to the accident, Ms Yap and Mr Wong had incorporated a separate company. Each of them was a director and 50% shareholder of the company. The company carried on the same business as the partnership (collectively, “the Start-up”). As the company was still in the first month of its operations, Ms Yap and Mr Wong had agreed to draw a nominal monthly salary of $850 each so as to foster the company’s growth and meet staff payroll requirements. Prior to joining the partnership in November 2008, Ms Yap had been employed as a finance manager and had received a fixed monthly salary of $6,300 inclusive of bonuses.

5          Ms Yap commenced the present action against Mr Wong and Mr Lim Chuah Heng, the 2nd respondent in CA 33 and 2nd appellant in CA 35, and interlocutory judgments in default were entered against them. At the trial for assessment of damages, the High Court Judge (“the Judge”) awarded Ms Yap $265,000 for her pre-trial loss of earning capacity, and $80,000 for her post-trial loss of earning capacity. These were the only two heads of loss disputed on appeal.

The court’s decision

6          The court declined to recognise a claim for pre-trial loss of earning capacity. Any loss actually incurred by a plaintiff prior to the date of the trial had to be capable of being proved by the plaintiff. This explained why our courts, in assessing pre-trial loss, had generally only recognised claims for pre-trial loss of earnings, which are treated as claims for special damages which attract the requirement of strict proof. The court also held that a claim for pre-trial loss of earnings could not be treated as a matter of general damages as this would otherwise blur the well-established distinction between general and special damages. For these reasons, the Judge had erred by awarding Ms Yap general damages for her pre-trial loss of earning capacity when our law does not recognise such a claim, and also considering that the claim had not been pleaded or raised during submissions below. The court noted that it is not unduly onerous for plaintiffs who find themselves in exceptional circumstances which make it difficult to precisely prove and quantify loss of earnings, as the courts do not rigidly demand the same type or amount of evidence in every claim for lost earnings, but will instead consider all the circumstances of each case. The court set aside the Judge’s award in general damages for Ms Yap’s pre-trial loss of earning capacity as there was no basis in law for such an award: at [29], [31], [41], [42], [44] and [45].

7          The court affirmed the Judge’s decision to admit Ms Yap’s evidence forecasting the income and profits that the Start-up would have achieved had it not been for the accident, as statements of opinion by a non-expert witness under s 32B(3) of the Evidence Act (Cap 97, 1997 Rev Ed). However, the court also affirmed the Judge’s finding that the forecasts were unreliable as they were built upon assertions that were not supported by the documentary evidence and thus agreed with the Judge’s rejection of the primary method proposed by Ms Yap to calculate her pre-trial loss of earnings: at [55] and [56].

8          The court held that the appropriate award in respect of Ms Yap’s pre-trial loss of earnings was $166,370, being $6,300 per month (plus bonus) less her actual earnings. This was primarily on the basis of the Judge’s finding that Ms Yap would have eventually earned at least $6,300 per month from the Start-up, but also took into account the likelihood that Ms Yap would not have earned more than she actually did in the first two years following the accident given the unprofitability of the Start-up in its early years as well as her decision to draw a salary of only $850 to give the Start-up a financial head-start: at [61], [65] and [67].

9          The court upheld the Judge’s award of $80,000 for Ms Yap’s post-trial loss of earning capacity. There was no reason to disturb the Judge’s findings regarding the extent of Ms Yap’s permanent incapacity, her ability to accommodate her residual disabilities in her work, and the disruptions that would be caused by further surgeries and medical procedures. The court applied the multiplier-multiplicand approach and found that the Judge’s award was reasonable in the circumstances: at [71] and [72].

 

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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