This article first appeared in the Summer 2009 issue of the Expert Witness.
At the end of February of this year, I testified in a personal injury case in Singapore. I thought our readers would be interested in hearing about my experience.
One of the aspects of the case that made it especially interesting – and challenging – from my point of view is that there are no case-law precedents for the use of economic experts in personal-injury cases in Singapore. In order to accept my evidence, the court would potentially be opening the door to the use of economists or similar experts in future cases. While it is not completely clear to me why there is no history of using economists in Singapore, it appears that the cost of hiring experts is a significant barrier to plaintiffs there. I was advised that for personal injury claims in Singapore, plaintiff lawyers are not allowed to charge any fees until the case is settled. Their ultimate fee is decided by the court and based on what the lawyers submit and the complexity of the case. The lawyers are not allowed to negotiate a contingency fee arrangement. Clearly this imposes a substantial financial barrier for most plaintiffs, since few would have the resources to fund a complex personal injury case in which experts are needed. For the case I worked on, I was hired by the plaintiff side, and the plaintiff did indeed have the financial resources needed to fund the case.
While I will not reveal too many details of the case here, it is sufficient to know that the plaintiff was a young man who was injured at the beginning of a career which would eventually yield a high income. In addition, his father was well-established in the same career, and the son would possibly eventually join in his father’s business. The plaintiff was seriously injured in a motor vehicle accident, but was able to resume his career, albeit with a short delay (less than a year) and with ongoing residual deficits. Due to the nature of his career, if his residual deficits impair his on-the-job productivity, then his income will also be reduced. However, due to the stage he is at in his career, his reduced capacity has not had an appreciable impact on earnings so far. Because of the age of the plaintiff, and his high potential future income without- and with-accident, even a modest ongoing reduction in his annual income would yield a large present value of his future loss.
Liability was already established. The defendant argued that the residual deficits would not impair the plaintiff’s ability to do his job, and his loss was limited to the period of the delay, immediately following the accident. If the plaintiff-side was correct, the loss could be millions, while if the defendant was correct, the loss would be negligible. The case hinged on the medical/vocational evidence (concerning the impact of the plaintiff’s injuries on his job performance) and the economic evidence (concerning the impact of reduced on-the-job performance on his earning capacity).
While personal injury litigation in Singapore has much in common with that that in Canada, one notable difference is that expert witnesses are not used to provide evidence concerning a plaintiff’s loss of income. Instead, the courts rely on tables of multipliers to determine a person’s total loss, given findings concerning the annual loss. This approach can be satisfactory in many cases, but often not in cases when a plaintiff’s income path is expected to experience substantial growth, and/or when a plaintiff’s career paths has been delayed as a result of an injury, and/or when an injury will cause earlier retirement. In the case for which I testified, all of these were factors.
My colleague Laura Weir and I prepared a report for the plaintiff. We never received any written rebuttal responses from the defendant. Arrangements were made for me to travel to Singapore to testify at the end of February, though I expected the case would settle beforehand. It did not, and I made the long journey to Singapore.
I was called to give evidence on a Friday morning. There was no direct examination by the plaintiff’s lawyer – my report was to stand alone as my direct evidence. All questions concerning my evidence were asked by the defence lawyer and the judge. In my case there was no opposing expert evidence, though I presumed that the defence lawyers would be well-briefed by someone who could identify the most important weaknesses in my report. While the defendant was reluctant to have me offer evidence at all, the judge decided that he would hear my evidence and later decide whether or not to use it.
There were several things that were unusual concerning my courtroom experience, compared to my experience with the courts in Alberta. First, the plaintiff was not allowed to be in the courtroom to hear the evidence that I gave. While I testified, the only occupants of the courtroom were myself, two lawyers for the plaintiff, two for the defendant, and the judge. And it was the judge himself who maintained the written transcript of the proceedings. He typed at his computer, recording a nearly verbatim version of what was said by all of us, and his transcript was displayed in front of each of us on computer monitors. I found this to be helpful, because it provided me with a written version of all questions posed to me, and also enabled me to read back my own responses which helped in deciding whether or not I was satisfied with my response.
Another unusual part of my courtroom experience was the number of questions the judge asked. I think he asked nearly as many questions as the defence lawyer. Some of his questions seemed to be attempts to clarify my evidence, but others were more probing, consistent with what one would expect from opposing counsel. Apparently the extent of his questioning was not typical of the Singapore Courts.
The judge and defence lawyer were also interested in the calculations that were the basis of my evidence. I was advised the day before I testified that the court would ask me to describe my calculations in detail and provide electronic copies. At the end of my first day of testimony I took the court through my calculations. For me, this was probably the most interesting part of my testimony, and being a computer enthusiast, I was in my comfort zone. I sat beside the judge, and using his mouse and keyboard, we went through the calculations together, with the screen output directed to monitors that also appeared in front of plaintiff counsel and defence.
Fortunately, the judge was quite technically oriented and easily followed along with all of my Excel calculations. And also fortunately (for me), the defence lawyer seemed to be less technically inclined and asked few questions. At the end of my first day of testimony (8:00 pm on a Friday!) we distributed electronic copies of the calculations to the lawyers for their review that evening. The next morning (yes, Saturday), we were back in court and no one had any significant questions regarding the calculations.
The second day’s testimony was much shorter than the first – only about four hours with two short breaks – and things continued to go smoothly for me. In total, I testified for about 11 hours, which is far longer than any of my previous efforts.
I returned to Canada and nervously awaited to see if I would be part of a landmark Singapore judgment. Unfortunately, no. After 16 days of hearing (12 days after my evidence), the case settled out of court, shortly before the plaintiff was about to testify. Based on the amount of the settlement, I believe it was a very favourable result for the plaintiff and suggests to me that the defendant believed there was a high probability that my evidence would have been largely accepted. It is possible that the defendant insurers settled in order to avoid the risk that my economic evidence would have been accepted, creating a precedent for allowing similar evidence in future cases.