Suffian LP:

The plaintiff, a motor cyclist, was injured when a taxi knocked him down and won judgment against the taxi driver and against the taxi owner.

He was awarded damages for three items as follows:

(1) $1,474 special damages;

(2) $35,000 for pain and suffering and for loss of amenities; and

(3) $12,000 for loss of earning capacity.

In this appeal, Mr. Tay argues on his behalf that the quantum should be more. He does not criticize items (1) and (2), but only item (3).

Loss of earnings is of two kinds:

(1) loss of past earnings; and

(2) loss of future earnings or loss of prospective earnings.

Mr Tay says that what the learned trial Judge has done is to make an award for loss of future earnings, but nothing at all for loss of past earnings. It is urged on us that the learned Judge should have awarded -

(a) for loss of past earnings $33,500 if the plaintiff had been making about $450 pm or $14,800 if $200 to $300 pm; and

(b)about $22,500 for loss of future earnings

The principle upon which we can interfere with the award has been stated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. [1942] AC 601, 616 617 as follows:

Where the award is that of the Judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate Court is particularly slow to reverse the trial Judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v. Lovell . In effect the Court, before it interferes with an award of damages, should be satisfied that the Judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate Court is to interfere, whether on the ground of excess or insufficiency.

The questions here therefore are - has the learned trial Judge acted on a wrong principle of law or has he misapprehended the facts or has he made a wholly erroneous estimate of the damage suffered?

At the outset I should say at once that I do not agree that he has awarded nothing for loss of past earnings. He said in his written judgment -

the plaintiff had failed to prove the amount of his loss in respect of past or future earnings and taking into consideration all the circumstances of this case I was of the view that a sum total of $12,000 by way of loss of earnings and earning capacity would be fair and reasonable.

In my view it is clear that the word underlined was used by the learned Judge to mean past earnings in contrast to the next three following words which meant loss of future earnings.

So the next question that arises is: has the learned Judge misapprehended the facts when he awarded only $12,000 for these two items?

Mr Tay says yes. The plaintiff was a labour subcontractor, ie he found labour for a contractor, and he produced a letter written on 17 August 1973, by Heng Lee Construction Co. to his solicitor saying that he was the company's labour subcontractor and that his average monthly income as labour subcontractor was about $450 during the previous 6 to 12 months. At the trial Mr. Tay tried to have this letter admitted in evidence under s. 73A(1) of the Evidence Act, ie without calling anybody from the company to give evidence. Mr. Tay called as witness a clerk of the plaintiff's solicitor who said that he went to the company's premises on 11 July 1975, but found its sign-board missing and was told by some people on the first floor that the company had shifted but nobody knew where to and that he could not find the company's address in the phone book eith