Tan Ah Tah J (with whom Wee Chong Jin CJ and Buttrose J agreed):

On 5 August 1961 the plaintiff, who was a Government employee, was riding his bicycle along Bukit Timah Road when he was involved in a collision with a motor-car driven by the defendant. He sustained injuries as a result of the collision and brought an action against the defendant in the High Court claiming damages for negligence. At the conclusion of the trial on 6 November 1962 the learned trial Judge found that the defendant was solely to blame for the accident and awarded the plaintiff the sum of $9,794.85 by way of damages. The plaintiff had been boarded out on medical grounds with effect from 7 July 1962 and was thereafter in receipt of a pension from the Government. In assessing the damages the learned trial Judge did not take the plaintiff's pension into account. It is important to note that the reason why he did not do so was because Counsel on both sides agreed that the pension was not to be taken into account in assessing the damages.

On 20 November 1962 the case of Browning v. War Office [1962] 3 All ER 1089) was decided by the English Court of Appeal. The judgments delivered in that case caused Counsel for the defendant to think that he had been in error in agreeing to the damages being assessed in the manner indicated. The defendant now appeals to this Court and contends that by reason of the decision in Browning's case, supra, the pension receivable by the plaintiff from the time of his retirement ought to be taken into consideration in reduction of the quantum of damages awarded to him.

Counsel for the defendant stated that in agreeing to the method whereby the damages were assessed he was relying on the decision of the English Court of Appeal in Payne v. Railway Executive [1951] 2 All ER 910 the headnote of which reads as follows:

The plaintiff, while serving in the Royal Navy, was seriously injured in a railway accident for which the defendants admitted liability. He was invalided from the service and was awarded a disability pension in assessing the amount of which the Minister of Pensions had power to take into account the amount of compensation awarded to the plaintiff aliunde. Later the plaintiff sued the defendants for damages for negligence and was awarded STG3,000 for the loss of future earnings and STG2,500 for pain and suffering.

Held: in assessing damages attributable to loss of earnings the amount of the disability pension must be disregarded.

In Browning's case, supra, the English Court of Appeal came to the conclusion, by a majority, that Payne's case, supra, should not be followed. The disability pension known as veteran's benefit to which the plaintiff in Browning's case was entitled as of right was therefore taken into account and credit was given for it in assessing the pecuniary loss for which the plaintiff was to be compensated.

It now becomes necessary to consider the legal position at the time of the trial in the Court below. Payne's case, supra, was not a binding authority in Singapore. Moreover, the question whether or not pensions were to be taken into account in assessing damages was, to say the least, an arguable one. That this was so is borne out by the judgments in Browning's case, supra. However, in spite of the fact that the point was an arguable one, Counsel for the defendant made no attempt to argue it; instead, he chose to agree that the damages should be assessed on the basis that the pension received and receivable by the plaintiff from the time of his retirement should not be taken into account. The damages were accordingly assessed by the learned trial Judge on that basis. In the circumstances of this particular case, having regard to what transpired in the Court below, it would not be right, in my opinion, to allow the point to be argued in this Court.

In view of the conclusion which I have reached, it is unnecessary to express any opinion as to whether Payne's case, supra, or Browning's case