Zhu Xiu Chun (alias Myint Myint Kyi) v Rockwills Trustee Ltd (administrators of the estate of and on behalf of the dependants of Heng Ang Tee Franklin, deceased) and other appeals [2016] SGCA 52

Introduction

The present appeals arise from an unfortunate incident. Due to a negligently conducted liposuction surgery, one Heng Ang Tee, Franklin (“the Deceased”) met his demise. The Deceased died on the day the surgery was carried out, ie, 30 December 2009. He was then 44 years old. The administrator of his estate brought the present proceeding for damages against the doctors and the clinic responsible for the debacle. In Rockwills Trustee Ltd (administrators of the estate of and on behalf of the dependants of Heng Ang Tee Franklin, deceased) v Wong Meng Hang and others [2015] 4 SLR 239 (“the Judgment”), the High Court judge (“the Judge”) awarded a total sum of $5,260,653.58 to the Deceased’s estate and dependants. Dissatisfied with the sum awarded, the administrator of the Deceased’s estate, as well as the two doctors who performed the surgery, has appealed against the Judge’s award, with the administrator contending that the sum awarded is inadequate and the doctors arguing that it is excessive. These are the first appeals in which this court has had to consider a claim for loss of inheritance pursuant to s 22(1A) of the Civil Law Act (Cap 43, 1999 Rev Ed).

Facts

Parties to the dispute

The doctors who performed the liposuction surgery are Dr Zhu Xiu Chun @ Myint Myint Kyi (“Dr Zhu”) and Dr Wong Meng Hang (“Dr Wong”). They are the appellants in Civil Appeal No 127 of 2015 (“CA 127/2015”) and Civil Appeal No 132 of 2015 (“CA 132/2015”), respectively. Along with Reves Clinic Pte Ltd, the two doctors are the respondents in Civil Appeal No 131 of 2015 (“CA 131/2015”). We will refer to these parties collectively as “the Defendants”. The appellant in CA 131/2015 is Rockwills Trustee Ltd, the administrator of the Deceased’s estate (“the Administrator”). Reves Clinic Pte Ltd does not play a substantial part in any of the present appeals.

The Administrator acts on behalf of both the estate of the Deceased as well as the Deceased’s dependants. The Deceased’s dependants comprise the following persons:

Jo-Ann was born on 9 June 1996; she was 13 years old at the time of the Deceased’s demise and she turned 19 years old in the year in which the Judgment was rendered. Ryan was born on 19 May 1999; he was 10 years old at the time of the Deceased’s demise and he turned 16 years old in the year the Judgment was delivered. Collectively, Jo-Ann and Ryan will be referred to as “the Children”.

With respect to the relationship between the Deceased and Ms Quek, a decree nisi for divorce was obtained on 23 February 2006. Prior to his death, the Deceased was paying a maintenance sum of $9,000 a month to Ms Quek and the Children. Since the decree nisi, the Deceased has had a relationship with his live-in girlfriend, Ms Mabel Leong (“Ms Leong”).

Prior to his demise, the Deceased was the Chief Executive Officer of YTL Starhill Global REIT Management Limited, a property management firm. The Deceased was then also the owner of three properties – a property at Marigold Drive, a property at Duchess Avenue and a property at Tanglin View.

Background to the dispute

Following the death of the Deceased on 30 December 2009, the Administrator commenced Suit No 165 of 2011 against the Defendants on 11 March 2011, alleging that the Deceased’s death was caused by their negligence. A coroner’s inquiry was carried out over 15 days. The coroner issued his report on 4 January 2012 and in it he concluded that:

Interlocutory judgment was entered against Reves Clinic Pte Ltd in default of appearance on 30 March 2011. Liability was admitted by Dr Wong and Dr Zhu on 15 August 2012. Therefore, the only issue that the Judge had to determine was the quantum of damages to be awarded.

Summary of the Pleadings

The different heads of claim, as well as the quantum that each party alleged should be awarded by the court for each head of claim, were summarised as follows at the hearing below:

The items highlighted in bold are those which form the subject-matter of the present appeals.

There were also further heads of claim such as funeral expenses, legal fees and disbursements incurred for obtaining Letters of Administration, and damages for bereavement which were undisputed by the parties.

Decision Below

The Judge granted an award of damages in favour of the Deceased’s estate and dependants as follows (the Judgment at [29]):

As indicated above, the four main heads of claim which are being contested by the parties in the appeals are first, the coroner’s inquiry fees, secondly, the dependency claim of Ms Quek, thirdly, the dependency claim of the Children, and fourthly, the loss of inheritance claim of the Children.

With respect to the coroner’s inquiry fees, the Judge found that the professional fees charged by the Administrator’s counsel, Ms Kuah Boon Theng, were clearly set out in an invoice dated 12 September 2012 and were reasonably incurred. The Judge therefore awarded the Administrator’s claim of $190,513.05 for the coroner’s inquiry fees.

As for the dependency claim of Ms Quek, the Judge accepted that she would set aside approximately $2,000 of the $9,000 under the maintenance order for herself, leaving $3,500 for each child. This led the Judge to use $2,000 as the multiplicand for Ms Quek’s dependency claim. The Judge further found that the Deceased would most probably have continued to work until the age of 65 years but for his death and hence arrived at a multiplier of 21. The Judge then applied a 40% discount to fix the discounted multiplier at 12.6. Applying this multiplier to the multiplicand of $2,000, the Judge awarded a total sum of $302,400 to Ms Quek for her dependency claim.

With respect to the dependency claim of the Children, the Judge rejected Ms Quek’s and the Children’s averments that on top of the maintenance which was paid, the Deceased had also paid $20,000 a year to cover additional expenses such as gifts, computers and school trips. He therefore only used the $3,500 maintenance amount as the multiplicand for each child’s dependency claim.

The Judge adopted a multiplier of ten years for Jo-Ann since she was 13 years old at the time of the Deceased’s demise and would be 23 years old when she completed her tertiary education. As for Ryan, the Judge adopted a multiplier of 15 years as he would complete his tertiary education at the age of 25 years. The Judge then applied a 25% discount to reach a discounted multiplier of 7.5 years and 11.25 years for Jo-Ann and Ryan respectively.

Additionally, the Judge decided that a higher multiplicand of $4,000 (ie, an additional $500) would be appropriate for three years to reflect the higher amount of maintenance needed for the Children during their years of tertiary education. The Judge, however, found that there was insufficient evidence to show that the Deceased had intended to send the Children overseas for tertiary education.

As a result, he awarded a total sum of $328,500 for Jo-Ann’s dependency claim (ie, $4,000 per month for three years, and $3,500 a month for seven years, with a discount of 25%) and awarded a total sum of $486,000 for Ryan’s dependency claim (ie, $4,000 per month for three years, and $3,500 per month for 12 years, with a discount of 25%).

As regards the loss of inheritance claim, the Judge reviewed the respective methodologies for quantifying the lump sum award as advanced by the Administrator’s expert, Mr Keoy Soo Earn, and the Defendants’ expert, Mr Yin Kum Choy. The Judge was also assisted by the views of the court assessor, Mr Harsha Basnayake.

The Judge took the view that a balanced approach would be to calculate the amount of wealth that the Deceased would have accumulated, but for his death. By utilising the information from both experts’ reports and after making certain adjustments, the Judge came to a range of $524,000 to $650,000 of savings per annum and took the average of the two sums to reach a figure of $587,000 worth of savings per annum. He used this figure as the multiplicand.

The Judge applied a discount rate of 40%, as he did with the dependency claim of Ms Quek, to the multiplier of 21 years (ie¸ the remaining working life of the Deceased) and multiplied this sum by $587,000 per annum to come to a total figure of $7,396,200. The Judge then applied 52.5% to this figure as the Deceased had intended, under the will which he had executed prior to his death, to give the Children 52.5% of his estate. Accordingly, the Judge awarded the sum of $3,883,005 as the loss of inheritance of the Children.

The Appeals

As noted above, the appeals have been brought to challenge the quantum of damages awarded by the Judge in respect of several heads of claim:

(a) In CA 127/2015, Dr Zhu is seeking a reduction of the amount awarded for:

(i) the coroner’s inquiry fees;

(ii) the dependency claim of Ms Quek;

(iii) the dependency claim of the Children; and

(iv) the loss of inheritance claim of the Children.

(b) In CA 131/2015, the Administrator is seeking an increase of the amount awarded for:

(i) the dependency claim of the Children; and

(ii) the loss of inheritance claim of the Children.

(c) In CA 132/2015, Dr Wong is seeking a reduction of the amount awarded for:

(i) the dependency claim of Ms Quek;

(ii) the dependency claim of the Children; and

(iii) the loss of inheritance claim of the Children.

As part of CA 131/2015, the Administrator has also filed Summons No 318 of 2015 (“SUM 318/2015”) seeking leave to adduce certain documents for the purposes of the appeal. These documents are published information relating to fee schedules for tuition and university accommodation fees of local tertiary institutions and the fee schedules of driving schools in Singapore which are meant to substantiate a greater sum to be awarded for the dependency claim of the Children.

Defendants’ Cases / Administrator’s Case

Dr Zhu’s Case

Adducing of further evidence

Dr Zhu objects to the adducing of the further evidence and has indicated via a letter to the Registrar of the Supreme Court that they will be relying on the submissions of Dr Wong in this regard (see below at [32]).

Coroner inquiry fees

Dr Zhu first argues that based on s 10(1) of the Civil Law Act, there must be a subsisting cause of action for there to be a claim for such fees. Since there was no such subsisting cause of action at the time of the coroner’s inquiry, the Administrator has to bear such expenses itself.

Dr Zhu further contends that, in any event, the fees charged by the Administrator’s solicitors are excessive.

Dependency claim for Ms Quek

Dr Zhu avers that although the Civil Law Act regards a former wife as a dependant, Ms Quek should not be paid the same amount until the end of the normal working life of the Deceased. As Ms Quek was earning $21,000 a month at the time of the suit and was given a significant amount of assets from the divorce, it would be appropriate for Ms Quek to be paid another $24,000 as maintenance for only one year as a dependant.

Dependency claim for the Children

With respect to the dependency claim for Ryan, Dr Zhu argues that since Ms Quek is earning a substantial amount, the Judge should have applied a further discount of 20% to reflect Ms Quek’s share in contributing to his expenses. Finally, the court should also consider that Ryan would be receiving a substantial sum for his loss of inheritance. Accordingly, the award for Ryan’s dependency claim should be reduced to $384,000.

Dr Zhu is not appealing against the sum awarded for Jo-Ann’s dependency claim.

Loss of inheritance

Dr Zhu submits that the Judge had erred in failing to take into account the fact that the Children would not remain as dependants for very much longer and that if the Deceased had passed away at the end of his natural life, the Children would not even be entitled to make a dependency claim. Dr Zhu therefore argues that a reduction should be made to the sum awarded by the Judge.

With respect to Mr Keoy’s expert evidence, Dr Zhu contends that Mr Keoy had reached his proposed figure on the basis of several erroneous assumptions and conjectures:

(a) First, he had wrongly assumed that certain bonus figures would be paid to the Deceased until the latter attained the age of 65. Instead, the bonuses were one-time payments due to transfers of ownership in 2005 and 2009.

(b) Secondly, he had wrongly assumed that the Deceased would be receiving a salary of $57,200 per month till he turned 65.

(c) Thirdly, he did not take into account the personal expenses of Ms Leong.

(d) Fourthly, post-retirement expenses had not been taken into account.

Therefore, the Judge should not have relied on Mr Keoy’s projections.

Dr Wong’s Case

Adducing of further evidence

Dr Wong argues that leave should not be granted to adduce the further evidence as first, the evidence could have been obtained with reasonable diligence at trial, and secondly, the evidence would not likely have had an important influence on the outcome of the action.

Dependency claim for Ms Quek

Dr Wong argues that, based on a correct application of case precedents, the appropriate multiplier for Ms Quek’s dependency claim should be ten instead of 12.6 (ie, a discount rate of 52% instead of the 40% applied by the Judge).

Dependency claim for the Children

On the same basis that the case precedents had been applied incorrectly, Dr Wong contends that the appropriate multiplier for Ryan’s dependency claim should be ten instead of 11.25.

Loss of inheritance

Dr Wong submits that the sum awarded for loss of inheritance was erroneously inflated for the following reasons:

(a) First, the Judge had failed to factor in the post-retirement expenses of the Deceased which would include maintaining both himself and Ms Leong. The Deceased’s expenditure during retirement should be assumed as being the same as before retirement.

(b) Secondly, although the Judge stated that a discount rate of 4% should be applied to determine the Deceased’s wealth, this discount rate did not feature any further in the Judgment.

(c) Thirdly, the Judge should not have used the bonuses received by the Deceased in the four years preceding his demise as a benchmark for the bonuses he would receive in the subsequent years. This is because the bonuses which the Deceased received during that period were illegitimate as they were not authorised by any board resolution. The appropriate multiplicand should therefore have only been $299,116.

(d) Fourthly, the Judge had erred in applying a multiplier of 12.6 years; an appropriate multiplier would be eight years as there should be an adjustment downwards to take into account the fact that the Deceased would have had to maintain Ms Leong as well.

After making the necessary adjustments, Dr Wong contends that the Children should only inherit a total of $525,127.58.

The Administrator’s Case

Adducing of further evidence

The Administrator argues that there has been a material change in the factual circumstances since the time of the trial as Jo-Ann has decided to commence her university education locally. The conditions in Ladd v Marshall [1954] 1 WLR 1489 therefore should not be applied strictly.

The Administrator also submits that, in any event, the Ladd v Marshall conditions are met. Further, it is necessary in the interests of justice for this evidence to be admitted as it is relevant and accurate information.

Coroner’s inquiry fees

With respect to Dr Zhu’s objections to the coroner’s inquiry fees, the Administrator argues that the authority of Chong Khin Ngen and another v Lim Djoe Phing [1993] SGHC 154 (“Chong Khin Ngen”), which was also relied upon by Dr Zhu, stands for the proposition that such fees are recoverable.

As for the quantum which was awarded by the Judge, the Administrator submits that it was a reasonable amount as its counsel had played a significant role in the coroner’s inquiry.

Dependency claim for the Children

The Administrator argues that the Judge had applied a correct multiplier – the discount rates derived by Dr Wong from the precedents are erroneous.

As for the multiplicand, the Administrator submits that the sum of $3,500 per month for each child is inadequate. The Judge failed to adequately consider the evidence relating to other additional expenses incurred by the Children that were not part of this monthly maintenance sum. Given the generosity of the Deceased, the Children should be entitled to the following increases in the sum awarded:

(a) an additional sum of $7,000 per child per annum for costs of vacation and similar expenses;

(b) an additional one-off sum of $3,000 per child for the cost of driving lessons;

(c) an additional sum of $15,000 per annum for each child for their university tuition fees; and

(d) an additional sum of $6,000 per annum for each child for their accommodation during university.

The Administrator also argues that the Judge had erred in providing for only three years for the Children to obtain a university degree as a good number of undergraduate degree courses in Singapore take at least four years to complete.

Dependency claim for Ms Quek

The Administrator argues the sum of $302,400 awarded to Ms Quek as dependency claim was appropriate. The evidence showed that the Deceased had a strong commitment to provide for Ms Quek even after their divorce.

Further, the Administrator contends that the discount rates proffered by Dr Wong based on precedents are erroneous. The Administrator also emphasises that it is not desirable for courts to blindly adhere to the multipliers adopted in previous cases. Rather, the court should focus on the individual facts of each case.

Loss of inheritance

With respect to both Dr Zhu’s and Dr Wong’s submissions that the sum awarded for loss of inheritance should be reduced, the Administrator responds as follows:

(a) It is irrelevant that the Children would no longer be dependants prior to the end of the natural death of the Deceased when computing the loss of inheritance.

(b) The Judge did take into account what the Deceased was capable of earning after his official retirement and was satisfied that he would be able to meet his expenses and even earn income.

(c) Ms Leong’s expenditure was taken into account as it was subsumed under the Deceased’s own expenditure.

(d) The bonuses received by the Deceased in the four years preceding his demise were not illegitimate.

The Administrator argues that the sum awarded should instead be increased for the following reasons:

(a) In relation to the loss of inheritance, the Judge should have adopted Mr Keoy’s multiplicand value of $592,957.24 per annum as he was the more credible expert witness.

(b) The Judge should have applied a compounded interest rate of 4% per annum over the multiplier of 21 years to reflect the future value of an annuity.

Taking all these adjustments into account, the Children should be awarded a total of $5,971,256.53.

Issues before this Court

The main issue in contention from the three appeals is whether the sums awarded under the following heads are appropriate:

(a) the coroner’s inquiry fees;

(b) the dependency claim of Ms Quek;

(c) the dependency claim of the Children; and

(d) the loss of inheritance claim of the Children.

An ancillary issue which also arises from CA 131/2015 is whether the Administrator should be allowed to adduce further evidence for the purposes of the appeals (ie, SUM 318/2015).

Our Decision

As our determination of SUM 318/2015 may have a bearing on the analysis of the appropriateness of the various awards, we first address this application.

Whether leave should be granted for further evidence to be adduced

The further evidence which the Administrator is seeking to adduce comprises the following:

(a) the published fee schedules of three driving schools for driving lessons in Singapore;

(b) the published fee schedules for various undergraduate degree programmes at three local universities; and

(c) the published fee schedules for the residential colleges and/or hostels/halls of residences of the National University of Singapore and the Nanyang Technological University.

For further evidence to be adduced at the appellate stage pursuant to s 37(4) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) and O 57 r 13(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), there must be “special grounds” which justify the introduction of such evidence. To establish that special grounds exist, the applicant must satisfy the three conditions laid down in Ladd v Marshall and the conditions are to be applied strictly (see Singapore Civil Procedure 2015: Volume I (G P Selvam gen ed) (Sweet & Maxwell, 2015) (“Singapore Civil Procedure”) at para 57/13/11). The Administrator has sought to rely on the decision of the Court of Appeal in Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 (“Yeo Chong Lin”) to argue that where the further evidence relates to matters which have occurred after the date of the decision from which the appeal is brought, the satisfaction of special grounds is not required for such evidence to be admitted. According to the Administrator, the further evidence sought to be adduced relates to Jo-Ann’s decision to pursue her university education locally, a decision which was only made after the date of the Judgment.

In our view, the Administrator’s reliance on Yeo Chong Lin is misplaced. In that case, the judge who heard the matter at first instance had to decide the question of who had beneficial ownership over certain shares (ie, the father or the daughters) to determine whether these shares should be included in the pool of matrimonial assets. Although it was known to the judge that the daughters were alleging that they were the owners of the shares and that they intended to challenge their father’s act in taking away their ownership of the shares, no suit had been commenced by the daughters at that time. Subsequently, after the judgment of the High Court was delivered, the daughters commenced a suit in the High Court to claim for these shares. The fresh evidence sought to be admitted on appeal related to the new action that was instituted by the daughters.

In allowing the evidence to be admitted, the Court of Appeal made the following observations (Yeo Chong Lin at [11]–[13]):

From the above, it is evident that in Yeo Chong Lin, the event which arose after the judgment was delivered was the commencement of the new suit by the daughters. Significantly, this meant that the further documents sought to be adduced on appeal were documents which could not have been produced to the judge below. This is a factor which is absent from the facts of the present case since the documents which the Administrator is seeking to adduce could have been produced at the trial below.

It should also be emphasised that the justification behind admitting further evidence as to matters occurring after the date of the judgment is that the further evidence “materially affects the basis of the earlier decision” and “the change must substantially affect a basic assumption made at the trial” (see Singapore Civil Procedure at para 57/13/16).

The Administrator argues that the fact that Jo-Ann has now chosen to pursue her education locally instead of overseas is a material change in the factual circumstances. We do not see how this can be so. In the present case, in arriving at his decision, the Judge did not make any assumptions as to whether the Children would be pursuing their university education locally or overseas when awarding the quantum for their dependency claims – rather, the Judge’s focus was on whether the Deceased intended to send the Children abroad for their tertiary education and to fund the same and he found that no such intention had been proven. Whether Jo-Ann eventually chose to study locally or overseas was irrelevant to the inquiry.

It should also be emphasised that with respect to the fee schedules for the driving schools, there is no explanation as to how any event which arose after the Judge’s decision would be relevant to justify the relaxation of the Ladd v Marshall conditions.

Applying the Ladd v Marshall conditions, in our judgment, the first condition is not satisfied. The evidence could have been adduced at trial with reasonable diligence. By Ms Quek’s own averments in her supporting affidavit dated 6 November 2015 for this application, “[t]he documents … were also all easily obtained from the internet and are publicly available” (at para 10).

The Administrator argues that because it was Dr Zhu and Dr Wong who were contending that the Children could complete their education locally instead of overseas, the onus should have been on them to adduce the evidence pertaining to the fees charged by local tertiary education institutions. We disagree with this assertion. It was the Administrator, as plaintiff, who was claiming for the tertiary school fees of the Children. Accordingly, it was open to the Administrator, and indeed incumbent upon it, to produce fees relating to both overseas and local tertiary education institutions to support its claim. By choosing to hang its hat on a successful claim for the former, and therefore omitting to adduce the fee schedules of local universities, the Administrator has to bear the consequences of its litigation strategy or oversight.

The Administrator has also sought to rely on the cases of Cheng-Wong Mei Ling Theresa v Oei Hong Leong [2006] 2 SLR(R) 637 (“Oei Hong Leong”) and Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673 (“Su Sh-Hysu”) to argue that the Ladd v Marshall conditions should not always be applied rigidly in all circumstances and that the court should allow the introduction of the evidence as it is in the interests of justice to do so. In our judgment, the authorities do not support the Administrator’s contention.

Although the Court of Appeal held in Oei Hong Leong (at [39]) that the rule in Ladd v Marshall is “not a statutory provision to be applied rigidly in all circumstances”, there are no exceptional circumstances in the present case to justify adopting a relaxed approach to the Ladd v Marshall conditions. In Oei Hong Leong, the plaintiff was seeking to adduce evidence which showed that the Singapore Improvement Trust (the predecessor of the Housing and Development Board) had approved the development of certain houses in 1956. At the trial below, both the plaintiff and defendant assumed that the houses which had been erected were authorised which explained why the defendant did not raise any objection in this respect. The judge below, however, took a stricter stance and found that although the subdivision plan showed the existing houses, it did not show that permission was granted for their actual development. This point was only brought up for the first time in the grounds of decision of the judge. Therefore, the Court of Appeal found that because the judge had taken up a new point which the parties had not raised, and did not give notice of this new point to the parties, evidence should be allowed in the appeal to show that approval had been obtained. It was found (at [43]) that “[h]ad the point been brought up during the hearing, the plaintiff could easily have brought in the new evidence to seal the point”.

As for Su Sh-Hysu, the Court of Appeal allowed the further evidence to be adduced, notwithstanding that the first condition of the Ladd v Marshall test was not satisfied, on the basis that the fresh evidence uncovered the fraud and deception of the other party and such fraud struck at the very root of the litigation. In that case, the appellant was seeking leave to adduce an expert report to corroborate her account of events. The Court of Appeal held that although, at the time of trial, the appellant did have testimonies which supported her case, she should still have gone ahead to obtain the expert report as she had a duty to obtain the best evidence in support of her case. She should not have assumed that the judge would wholly accept her version of the facts and the Court of Appeal therefore found that she had failed the first Ladd v Marshall condition. However, due to the fraud that was present in Su Sh-Hysu, the Court of Appeal allowed the admission of the expert report notwithstanding the appellant’s failure to fulfil the first Ladd v Marshall condition.

In our view, an analogy may indeed be drawn between the present case and that of Su Sh-Hysu, but to the Administrator’s detriment. The Administrator had assumed that the Judge would simply allow the claim for the overseas university expenses and had therefore omitted to produce the fee schedules of the local universities at the trial below. This is precisely why the Administrator cannot legitimately say that the first Ladd v Marshall condition has been satisfied. In the present case, however, we cannot overlook the failure to meet this condition as there are no exceptional circumstances or improprieties in the nature of fraud to justify a similar result as in Su Sh-Hysu.

Accordingly, we dismiss SUM 318/2015 and refuse leave for the Administrator to adduce the further evidence.

Whether the sum awarded for the coroner’s inquiry fees is appropriate

We turn now to consider the main issues in the appeals, beginning first with a consideration of the sum awarded for the coroner’s inquiry fees.

It appears to us that while there is support for the view that such fees should be claimable, our courts have not spoken consistently with one voice on this issue. In Chong Khin Ngen, the High Court allowed a claim for counsel’s fees in connection with a coroner’s inquiry. There, Amarjeet Singh JC noted that:

In reaching his conclusion, Woo J also observed (at [72]) that the defendant in Chong Khin Ngen had not been present before the court and therefore no argument to object to the claiming of such fees had been presented to the court.

Therefore, while previous decisions of the High Court have allowed plaintiffs to recover such fees, their determinations had been made without the benefit of any objections being raised by the defendants in those cases. Having considered the matter, we see no reason, and Dr Zhu has raised no valid objection, for us to conclude that such fees cannot be claimed.

Similarly, O 59 r 2(2) of the Rules of Court provides that:

We therefore find that the coroner’s inquiry fees are claimable by the Administrator. The key question which arises then is whether the amount awarded is reasonable and proportionate. On the facts of the present case, and based on the submissions before us, we find that there is insufficient evidence to make a determination one way or the other. Dr Zhu has sought to argue that the amount of $190,513.05 awarded for a 15-day coroner’s inquiry was excessive by reference to Chong Khin Ngen, wherein a sum of $50,914.20 was awarded for a 36-day coroner’s inquiry. However, we do not think that a simple comparison may be made between the cases based purely on the number of days that the inquiries had spanned. The scope of work undertaken in that case and the present one may have been significantly different. As was emphasised by the Administrator, at the coroner’s inquiry, the Senior State Counsel requested and/or allowed the Administrator’s counsel to lead evidence from various important witnesses called by the State and the time allowed for the Administrator’s counsel to question each of the witnesses was often equal to, if not more than, the time taken by the State Counsel.

Therefore, in the circumstances here, we find that the Administrator is entitled to claim for the coroner’s inquiry fees so long as they are proven to be reasonably incurred. The parties will be allowed to tax the amount being claimed for that purpose.

Whether the sum awarded for the dependency claim of Ms Quek is appropriate

As noted above (at [14]), the Judge had awarded a sum of $302,400 to Ms Quek for her dependency claim. This amount was calculated by using $2,000 a month as the multiplicand, with a multiplier of 12.6 years on the basis of a remaining working life of 21 years (ie, with a 40% discount).

The parties do not dispute the multiplicand applied by the Judge. Dr Wong, however, argues that the Judge should have applied a discount of 52% which would amount to a multiplier of ten years. Dr Wong relies on the following case authorities to support his point:

Case

Dependency Period

Discount

Multiplier

Hanson Ingrid Christina and others v Tan Puey Tze and another appeal [2008] 1 SLR(R) 409 (“Hanson”)

12

25%

9

Cheong Gim Fah and another v Murugian s/o Rangasamy [2004] SGHC 93 (“Cheong”)

16

50%

8

The present case

21

40%

12.6

Lassiter Ann Masters (suing as the widow and dependant of Lassiter Henry Adolphus, deceased) v To Keng Lam (alias Toh Jeanette) [2005] 2 SLR(R) 8 (“Lassiter”)

22

54%

10

Zhang Xiao Ling (personal representative of the Estate of Chan Tak Man, deceased) v Er Swee Poo and Another [2004] SGHC 21 (“Zhang”)

33

57%

14

A closer perusal of the above cases, however, shows that some of the discount rates reflected in the table are inaccurate.

In Cheong, contrary to Dr Wong’s submissions, the discount rate applied was not 50%. This is because the retirement age at that time was set at 62 years, and not 65 years. This meant that the deceased in that case, having passed away at the age of 49 years, had a remaining working life of 13 years. The assistant registrar had also demarcated the pre-trial and post-trial dependency claims of the wife and thereafter applied a multiplier of eight years for the post-trial dependency claim alone. It should be noted that the remaining work life of the deceased in relation to the post-trial dependency claim was approximately only 11 years, and the multiplier of eight years therefore meant that the assistant registrar had applied a discount rate of approximately 27.3%.

With respect to Zhang, this was also a case decided when the retirement age was 62 years. The deceased in that case passed away at the age of 32 years. The deceased’s remaining working life amounted to 30 years, and by eventually applying a multiplier of 14 years, the assistant registrar therefore applied a discount of approximately 53%.

A more accurate representation of the discounts awarded in the various case authorities cited would therefore be as follows:

Case

Dependency period

Discount

Multiplier

Hanson

12

25%

9

Cheong

11

27.3%

8

The present case

21

40%

12.6

Lassiter

22

54%

10

Zhang

30

53%

14

From the above, the precedents show that a longer dependency period will not always result in a higher discount rate. For example, although the dependency period in Zhang was eight years longer than in Lassiter, a greater discount was awarded in Lassiter. Such occurrences reflect the principle that each case must be determined on its unique circumstances and this dovetails with the observations of the Court of Appeal in Poh Huat Heng Corp Pte Ltd and others v Hafizul Islam Kofil Uddin [2012] 3 SLR 1003 (“Hafizul”) (at [54]) that:

In the more recent decision of Lai Wai Keong Eugene v Loo Wei Yen [2014] 3 SLR 702 (“Lai Wai Keong”), the Court of Appeal had further opined (at [38]) that whilst it would have been inappropriate to effect a radical and sweeping revision of the discount rate embedded in the multipliers used under the conventional approach, this would not preclude courts from adopting a lower or higher discount rate, and thereby departing from the trend of multipliers in previous cases, if the court found it appropriate to do so on the facts of the particular case before it. In this regard, we emphasise that parties should not merely rely on the multipliers set out in previous cases but should also seek to assist the court further by providing relevant actuarial data to justify the discounts which they are advocating for.

Having said that, and as a general proposition, we would agree that it would be in line with reason and logic that the longer the dependency period the higher should be the rate of discount. This is because, where the dependency period is longer, there would be greater uncertainties as far as vicissitudes of life are concerned. In our judgment, the discount rate of 40% applied by the Judge is not one which deviates significantly, if at all, from the general trend of discounts which courts have applied in previous cases. Accordingly, we do not think that the multiplier of 12.6 years is so excessive as to warrant appellate intervention.

Dr Zhu has raised a further argument that because Ms Quek is a high-earning individual, a lump sum of $24,000 would suffice for the purpose of her dependency claim. Dr Zhu relies heavily on the fact that during the parliamentary debates for the amendments to the Civil Law Act which expanded the scope of “dependants” to include a former wife, the Senior Minister of State moving the bill stated as follows (Singapore Parliamentary Debates, Official Report (19 January 2009) vol 85 at col 1139 (Assoc Prof Ho Peng Kee, Senior Minister of State for Law)):

According to Dr Zhu, the use of the phrase “at least for some time” shows that the legislature never intended for a surviving ex-wife to be paid the same amount until the end of the normal working life of the deceased ex-husband.

In our judgment, Dr Zhu’s reliance on the above excerpt from the parliamentary debates is misconceived and should not be read out of context. The genesis of the amendment to include a former wife as a “dependant” stemmed from the suggestions in the report of the Law Reform Committee (“the Committee”) where reference was made to the decision of Hanson, which was decided at a time when ex-wives did not fall within the ambit of a “dependant” under the Civil Law Act (see Law Reform Committee, Singapore Academy of Law, Loss of Inheritance or Savings: A Proposal for Law Reform (April 2008) (Authors: Michael Hwang SC and Fong Lee Cheng) (“the Committee Report”)). In Hanson, at the time of the husband’s demise, a decree nisi had been issued but not the decree absolute. This led the court to conclude that since the legal form of the marriage was still intact, the deceased’s “former” wife was still considered his wife and could therefore maintain her claim as a dependant. In its report, the Committee considered the case of Hanson and stated (at para 29) that:

From the above, it is clear that the intention behind the proposal was to ensure that former wives would be able to claim for dependency under the Civil Law Act, even where the divorce has been rendered absolute, just as the “former” wife in Hanson was able to do. It is therefore instructive to look at what was awarded to the “former” wife in Hanson. There, prior to his demise, the deceased had been ordered to pay a monthly maintenance of $4,200 to his “former” wife. In ordering that the defendant had to pay a total of $453,600 to the “former” wife (ie, $4,200 per month over nine years), Judith Prakash J (as she then was) noted (at [54]–[56]) that:

From the above, it is clear, and indeed trite, that when dealing with any dependency claim, including the claim of a “former wife”, the principle of a “reasonable expectation of pecuniary benefit” is fundamental to the inquiry (as it is in any other dependency claim) (see Gul Chandiram Mahtani and another (administrators of the estate of Harbajan Kaur, deceased) v Chain Singh and another [1998] 2 SLR(R) 801 at [17]–[18] (“Gul Chandiram Mahtani”)). The focus is not placed on the need, but on the reasonable expectation of the dependant. In the present case, at the time the maintenance order was agreed upon, Ms Quek was already generating an income of approximately US$10,000 a month. This goes to show that the Deceased, being an individual of significant earning power, was content to pay a maintenance sum of $9,000 a month despite Ms Quek’s ability to earn a substantial income of her own and despite the fact that Ms Quek was given a share of the properties under the divorce proceedings which amounted to about $500,000. In our judgment, Ms Quek has a reasonable expectation of receiving this maintenance sum for the rest of the Deceased’s working life.

Accordingly, we decline to vary the Judge’s award of $302,400 for Ms Quek’s dependency claim.

Whether the sum awarded for the dependency claim for the Children is appropriate

The appropriateness of the sum awarded for the Children’s dependency claim is a point of contention in all three appeals. Dr Zhu and Dr Wong submit that the total sum of $814,500 awarded for the Children’s dependency claim is excessive and should be reduced. On the other hand, the Administrator argues that this sum is inadequate and should be increased. We will consider each of these contentions in turn.

Whether the sums awarded should be reduced

Dr Zhu and Dr Wong do not seek to disturb the Judge’s award of $328,500 for Jo-Ann’s dependency claim; their main submission is that the sum of $486,000 which was awarded for Ryan’s claim is excessive.

Dr Zhu argues that the Judge should have applied a further 20% discount to reflect Ms Quek’s share in contributing to Ryan’s expenses and places heavy reliance on the decision of Cheong where a discount of 23% was applied in the light of the mother’s ability to contribute to the children’s expenses.

Dr Zhu has failed, however, to appreciate that the factual matrix in Cheong was materially distinct from the present case. In Cheong, the assistant registrar applied the discount on the basis that the expenses of the children would not have been solely borne by the deceased father and therefore legitimately took into account the earning capacity of the mother to ascertain what would have been her contribution to such expenses. In the present case, however, prior to his demise, the Deceased was already providing for a sum of $3,500 a month as maintenance to meet each child’s expenses. This sum was agreed upon, notwithstanding that Ms Quek had an earning capacity of her own. The starting points of Cheong and the present case are therefore markedly different.

As already noted above, the focus must be placed on a “reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of life” (see Gul Chandiram Mahtani at [17]). This principle was central, and indeed correctly so, to the Judge’s mind when he rejected Dr Zhu’s submission in the suit below. He concluded (at [23] of the Judgment) that:

In our judgment, there is nothing erroneous about the approach taken by the Judge.

In the present case, Ryan reasonably expected to continue to receiving this sum of $3,500 to meet his expenses up till the end of his tertiary education. The earning capacity of Ms Quek should not affect this conclusion.

As for Dr Wong, he relies on the same precedent table referred to above (at [80]) to argue that a greater discount should have been applied to the multiplier for Ryan’s dependency claim. However, as already noted, Dr Wong’s analysis of the precedents was inaccurate. By applying the revised table as set out at [84] above, with a dependency period of 14 years, the discount of 25% cannot be regarded as being excessive so as to warrant appellate intervention. We therefore conclude that the sums awarded for the Children’s dependency claims should not be reduced.

Whether the sums awarded should be increased

(1) Costs of vacation and similar expenses

As was held in Ng Siew Choo v Tan Kian Choon [1990] 1 SLR(R) 235 (at [15]), there does not have to be “distinct evidence of pecuniary advantage in existence prior to or at the time of death”. Rather, it would suffice to show that there is “some basis of fact from which the inference could be drawn that there was a reasonable expectation of pecuniary benefit”. In our judgment, an inference could be drawn from the evidence before us that the Deceased would have catered for such expenses.

Quite apart from the fact that Ms Quek and the Children have consistently attested to the fact that the Deceased was a generous father who would pay for the Children’s holiday trips and shower gifts on them, even his own lawyer, Ms Foo Siew Fong, who represented him during the divorce proceedings, attested to his generosity. We reproduce relevant excepts of Ms Foo’s affidavit:

It must be emphasised that Ms Foo is an independent party in the proceedings and would have no interest in vouching for the generosity of the Deceased. The Deceased’s girlfriend, Ms Leong, who is also an independent party to the proceedings, similarly attested to the generosity of the Deceased. She noted that “[the Deceased] remained committed to looking after … his children … financially, as he felt it was his responsibility” and that “[h]e took pride in looking after the people around him … [and] [h]is children were, of course his first priority”.

(2) Driving lessons

As for the driving lesson fees, we similarly take the view that this should have been allowed by the Judge. As was held by Prakash J in Hanson (at [52]), “in the modern context, learning to drive can be regarded as a normal part of the education of middle-class children [and] [t]hese expenses should be allowed”. Prakash J then proceeded to award a sum of $2,386.65 for each child’s driving lessons. Using that figure as a benchmark and taking into account that the fees would have increased since that time, in our judgment, a one-off sum of $2,500 for each child for their driving lessons would be appropriate.

(3) University fees

Accordingly, we adjust the award given by the Judge such that there would be an additional increase of $500 per month for the Children during their university years. This would result in them receiving $4,500 per month during that period of time.

At this juncture, it is necessary to address an inconsistency in the Judgement vis-à-vis the age at which the Children would complete their tertiary education. The Judge indicated that Jo-Ann and Ryan would be 23 years old and 25 years old respectively when they complete their tertiary education and this was evidently on the basis of a three-year university degree course. However, on the premise of a three-year university education, Jo-Ann would in fact be 22 years old when she completes her degree and Ryan would be 24 years old. In our judgment, quite apart from the above miscalculation, the Judge should have taken into account the fact that many undergraduate degree courses take four years to complete (eg, degrees with honours). At the time of the trial, both Jo-Ann and Ryan were doing well in school and it would be reasonable, in our view, for them to receive financial support for a four-year university education. The result of this is that the Judge’s conclusion that Jo-Ann and Ryan would be 23 years old and 25 years old respectively when they complete their tertiary education remains unchanged.

Therefore after making the necessary adjustments, the Children should be awarded the following amounts for their respective dependency claims:

(a) Jo-Ann – [(($7,000 x ten years) + ($3,500 x 12 x six years) + ($4,500 x 12 x four years)) x 75%] + $2,500 = $406,000

(b) Ryan – [(($7,000 x 15 years) + ($3,500 x 12 x 11 years) + ($4,500 x 12 x four years)) x 75%] + $2,500 = $589,750

It should be noted that we do not apply a 25% discount to the $2,500 which we award for the Children’s driving lessons since that sum is a one off expense not subject to any multiplier.

Whether the sum awarded for loss of inheritance is appropriate

As the parties have highlighted, this is the first time in which this court has had to consider a claim for loss of inheritance pursuant to s 22(1A) of the Civil Law Act. Section 22(1A) was enacted in 2009 and provides as follows:

The impetus for such a legislative change also stemmed from the recommendations of the Committee Report as evidenced by the parliamentary debates surrounding the enactment of this new provision (see Singapore Parliamentary Debates, Official Report (19 January 2009) vol 85 at col 1138–1139 (Assoc Prof Ho Peng Kee, Senior Minister of State for Law)):

Given that there has hitherto not been any case which has invoked s 22(1A), we take this opportunity to express our views on the appropriate methodology that should be applied in the computation of a loss of inheritance claim.

The appropriate methodology

The Judge took the view that a balanced approach would be to calculate the amount of wealth which the Deceased would have accumulated, but for his death. He sought to do so by applying the conventional multiplier-multiplicand approach which essentially consists of three steps:

(a) First, select an appropriate multiplicand which represents the savings of the Deceased per annum.

(b) Second, multiply that by an appropriate multiplier which would be discounted for accelerated receipt and vicissitudes of life.

(c) Third, take into account the appropriate percentage of this inheritance which should be attributed to the dependant. In this case, the Judge applied a percentage of 52.5% as the Deceased had indicated in his will that he intended to leave that percentage of his estate to the Children.

The Administrator and Dr Wong have not objected to this general approach which was taken by the Judge. Dr Zhu has, however, raised concerns over this approach on the basis that it ignores the possibility that the Children may cease to be dependants well before the end of the Deceased’s natural life. Dr Zhu’s objections will be considered at a later part of this judgment (see below at [142]–[150]).

As a matter of general methodology, we agree with the Judge that the conventional multiplier-multiplicand approach would be relevant in quantifying a loss of inheritance claim. It is apposite to note that in the Committee Report, three possible methods for computing such claims were recommended, of which two were based on the application of the conventional multiplier-multiplicand approach. These two methods were described in the following terms (at p 49–50):

In our view, there is merit in adopting the multiplier-multiplicand approach which is in line with the way loss of Central Provident Funds (“CPF”) contributions are computed since, as was noted in the Committee Report (at para 84), “normal savings should be treated similarly to CPF, as there is no logical distinction between the two”.

Adopting this approach would also dovetail with the Court of Appeal’s recent endorsement of the continued application of the conventional multiplier-multiplicand approach when quantifying loss of future earnings. In Lai Wai Keong, the Court of Appeal was asked to address the question as to whether it should depart from the conventional approach when assessing the loss of future earnings for a tort victim who was injured in an accident in the light of changes to the statutory minimum retirement age and the prevailing real interest rates. The Court of Appeal saw no reason to depart from the conventional approach and it observed (at [18] and [20]) that:

While Lai Wai Leong dealt with the loss of future earnings for a personal injury case and not a loss of inheritance claim as part of a dependency claim, the observations with respect to the familiarity of the courts in applying the conventional multiplier-multiplicand approach applies with equal force in the present context.

According to the Administrator, however, there is an important distinction between a loss of inheritance claim as compared to a loss of future earnings claim which would impact the methodology of quantifying such claims. When calculating loss of inheritance, the court is determining the future value of an annuity; in other words, the future value of a recurring amount of savings that can be invested or can generate interest. Such a consideration does not arise in the usual loss of support or loss of future earnings claims as those claims are concerned with the present value of an annuity. According to the Administrator, this distinction means that there should be an extra step to the conventional multiplier-multiplicand methodology – factoring in compounded interest from the savings during the multiplier period. We have reservations that such an additional step should feature in the analysis.

The Administrator has sought to justify the incorporation of this additional step on the basis that factoring in compounded interest is “a paired assumption” with the discount which courts award for accelerated receipt of a lump sum payment. As is well-established, an appropriate discount must be made to account for possible investment gains that a dependant would be expected to make as a result of the accelerated receipt of a lifetime payment (see, eg, Hafizul at [57]). According to the Administrator, “if the Courts are to assume that claimants are to invest money at a rate of 4% per annum, a paired and corresponding assumption must follow: The Deceased too could have invested the money to obtain returns at the rate of 4% per annum”. In our judgment, this submission is misconceived. It should be noted that the reason the courts apply a discount for accelerated receipt is due to the fact that a dependant is receiving a lifetime payment earlier. The discount is therefore meant to account for the dependant having immediate access to these monies which he could use to generate returns on. The court is not making any assumption as to whether the dependant would, as a matter of fact or even as a matter of likelihood, be applying the monies in a manner that would generate returns; rather, the discount is awarded to reflect that this could be done.

This is wholly different from adding compounded interest to the annual savings of a deceased which assumes, as a matter of fact, that the deceased would, or would more likely than not, invest his savings in a manner that would generate a steady rate of returns. In our view, while an assessment of damages is necessarily an exercise which involves an element of prediction and often requires the courts to grapple with various imponderables, to factor in the potential returns that a deceased could generate if he decided to invest his notional annual savings would be delving a step too far into the realm of speculation. It should be noted that even if the assumption could be made that a deceased would invest his notional annual savings, factoring in compound interest assumes further that he would generate a steady rate of returns on this investment. It should go without saying that this is highly speculative – it is first uncertain how a deceased would choose to invest his savings and it is equally likely that if a deceased had made investments, it could have resulted in a reduction, instead of an increase, in his overall wealth. In our judgment, factoring in compound interest would add a further layer of uncertainty to what is already an imprecise methodology and we are not prepared do so. This is not to say, however, that should the evidence establish that a deceased was an investor who generated a consistent rate of returns on his investments, this will not be taken into account. This would be factored in when the court considers what the appropriate multiplicand should be as his investment returns would form part of his annual earnings (and his savings as well). However, we cannot accept the Administrator’s suggestion that when computing a loss of inheritance claim, compounded interest should be taken into account, as a matter of course, such that there should be an extra step added to the multiplier-multiplicand approach.

Indeed, the Administrator has been unable to point us to any authorities where such a step had been applied. As is evident from the Committee Report (which was the impetus for the legislative change), the learned authors had never considered that it would be appropriate for such a methodology to be utilised. As noted above, the Committee had proposed two different methods for calculating the loss of inheritance which are essentially based on the multiplier-multiplicand approach. Neither of these proposed methods accommodate, nor do they contemplate, the taking of an additional step based on the income which could potentially be generated from a deceased’s future savings. In our judgment, this must be correct.

Therefore, the conventional multiplier-multiplicand approach is the appropriate methodology to be applied when computing a loss of inheritance claim. It must be noted, however, that while the general methodology is similar to the computation of a loss of dependency claim, there is an additional factor which must be taken into account and which is unique to a loss of inheritance claim – the post-retirement expenditure of the deceased. In this regard, we found the observations of the Hong Kong Court of Final Appeal in Lam Pak Chiu and another v Tsang Mei Ying and another [2001] HKCFA 28 to be particular instructive (at [34]–[35]):

While we note that the above observations were made in the context of an estate claim for loss of accumulation of wealth (as compared to a dependency claim for loss of inheritance), it was suggested in the Committee Report (at p 57) that the above framework would be “a useful reference for our courts if an award is made for loss of inheritance/savings in a dependency claim”. We find it to be so. What this means is that when adjustments are made at the second stage of the multiplier-multiplicand approach, the court must be alive to the fact that post-retirement expenses may result in a decrease, an increase or no change in the notional wealth of the deceased as reckoned from the time of his notional retirement up to the time of his notional death.

To summarise, when computing a loss of inheritance claim, the following three steps should be applied:

(a) First, an appropriate multiplicand should be derived which would reflect the savings of the deceased per annum.

(b) Second, this multiplicand should be multiplied by an appropriate multiplier which would be discounted for accelerated receipt and vicissitudes of life, along with an adjustment to reflect the post-retirement expenses of the deceased.

(c) Third, an appropriate percentage of this inheritance should be attributed to the dependant.

We turn now to apply these three steps to the present case.

Stage 1: Ascertaining the multiplicand

The Judge had derived the average savings per annum of the Deceased on the basis of the court assessor’s report, which was produced after studying both the reports of Mr Keoy and Mr Yin, and after conducting three rounds of discussions with the two experts. This led the Judge to adopt the figure of $587,000 per annum as the multiplicand for the loss of inheritance claim.

Although the figures used by the Judge were taken from the court assessor’s report, the court assessor had used Mr Keoy’s report as a base for his calculations. This is evident from p 13 of the court assessor’s report, which states:

Therefore, it would be apposite to address some of the objections raised by Dr Zhu and Dr Wong against the findings of Mr Keoy as they did have a bearing on the eventual figures relied upon by the Judge. The salient issues raised are as follows:

(a) whether it was correct to assume that the Deceased would be paid a monthly salary of $57,200 per month and whether he would receive the same bonus figures from the four years preceding his death annually until he turned 65; and

(b) whether Ms Leong’s expenditure had been taken into account.

Each of these objections will be addressed in turn.

Monthly salary and bonus payments

We reject Dr Zhu’s argument that there is no basis to show that the Deceased would have continued earning the same monthly income and receive the same annual bonus payments if he had not met his premature demise. As it stands, the monthly salary which the Deceased was drawing prior to his demise represents the most viable and reliable basis upon which to calculate the Deceased’s monthly salary. Dr Zhu has suggested no other alternative method of computation. Additionally, the risk that the Deceased could lose his job would be accounted for by the discount which is applied at the end of the computation and should not affect the multiplicand to be applied.

As for the bonus payments, it should be emphasised that even the Defendants’ own expert (ie, Mr Yin) had accepted the legitimacy of these bonuses and used them as a basis for his own financial projections. It was for that reason that the values derived by both experts vis-à-vis the deceased’s average net operating cash flow per annum were relatively similar. Although Dr Wong is now asserting that these bonuses should not have been included into the computation, there has not been sufficient evidence brought to our attention to find that these bonuses were illegitimate in nature.

Ms Leong’s personal expenditure

In our view, Ms Leong’s personal expenses had been sufficiently taken into account as part of the Deceased’s own expenses in the computation. Ms Leong had been the Deceased’s partner since his divorce in 2006 which coincided with the start of the four-year review period which was utilised by both Mr Keoy and the court assessor to calculate the Deceased’s financial arrangements and obligations. In his report, Mr Keoy considered all credit card charges, cash withdrawals, personal purchases, utility bill payments and others as part of the Deceased’s “personal expenses”. These “personal expenses” would have logically included the amounts he was spending on Ms Leong, especially considering that she was his live-in partner. This conclusion is further buttressed by para 7.2 of his report where he states that:

It is evident that Mr Keoy did not leave Ms Leong out of consideration when computing the Deceased’s expenses. Therefore, the projection of the Deceased’s expenses would have included Ms Leong’s expenses as well.

Accordingly, we find that the Judge was justified in using the figure of $587,000 per annum as the multiplicand for the loss of inheritance claim.

Stage 2: Factoring in the multiplier

However, in our judgment, the 40% discount applied by the Judge (to reach a multiplier of 12.6 years) was insufficient. Before detailing our reasons for so finding, we address a few contentions made by Dr Wong which are, in our judgment, unmeritorious.

First, we reject Dr Wong’s submission that there should have been a smaller multiplier applied due to the expenses of Ms Leong. As we have noted above, Ms Leong’s expenses had already been included as part of the computation of the multiplicand. Such expenses should not affect the multiplier.

Further, contrary to what was submitted by Dr Wong, the Judge’s observation that a discount rate of 4% per annum better reflects the risk attached to the cash flows as compared to Mr Keoy’s suggested rate of 1.1% did not mean that he intended to apply a further discount on top of the overall 40% discount to the global sum. We disagree with Dr Wong’s submission that the Judge may have muddled the 4% discount rate which is meant to reflect future cash flows with the 40% discount which is meant to account for vicissitudes of life and a lump sum payment. Rather, the 4% discount rate was the basis on which the 40% discount was derived as it is precisely the fact that there is such a discount rate at play which justifies an overall discount being applied to reflect the accelerated receipt of such monies and other vicissitudes of life. This point was also made in the Court of Appeal decision of Lai Wai Keong where it was observed (at [28]) that “the cases indicate that the multipliers used under the conventional approach have been based on the assumption that the lump sum award can be invested to achieve real rates of return of 4–5%”.

In the present case, the Judge was applying the conventional multiplier-multiplicand approach and therefore his reference to the 4% discount rate per annum was simply an explanation as to why he had applied an overall 40% discount, which is in line with the discounts applied in the precedents (see above at [84]). Dr Wong is therefore incorrect in asserting that, based on a 4% discount rate, a further discount has to be applied.

However, as noted above, we are of the view that the Judge had erred in applying the same discount (ie, 40%) as he did for Ms Quek’s dependency claim to the Children’s loss of inheritance claim. This is so for several reasons.

First, it should be noted that the discount that is applied to a dependency claim is based both on uncertainties in the future (due to vicissitudes of life) and for accelerated receipt of a lump sum payment (see Lai Wee Lian v Singapore Bus Service (1978) Ltd [1983-1984] SLR(R) 388 at [20]). While the uncertainty with respect to the Deceased’s ability to earn the same income during his working years (ie¸ up to the age of 65 years old) is similar for both Ms Quek’s dependency claim and the Children’s loss of inheritance claim, the accelerated receipt component is not the same. This is because the Children are only expected to receive their inheritance at the time of the Deceased’s notional death, which as accepted by the Judge, would be when he reached the age of 80 years. By being awarded a lump sum now, the Children are effectively receiving their inheritance 36 years earlier than they would have if the Deceased had not met a premature demise. This must be contrasted with the multiplier which was applied to Ms Quek’s dependency claim which was based only on the remainder of the Deceased’s income earning years (ie, 21 years). By applying the same 40% discount, the Judge failed to take into account the additional 15 years acceleration (ie¸ from the date of the Deceased’s notional retirement at 65 years old to the date of his notional death at 80 years old) which the Children would benefit from by receiving a lump sum award.

Second, in our judgment, further adjustments had to be made to account for the post-retirement expenses of the Deceased. We note that the Judge did not expressly direct his mind to this issue. The Administrator contends, however, that it was implicit in the Judge’s conclusion that he had found that the Deceased was capable of generating funds even after his official retirement and was satisfied that the Deceased would be able to meet his expenses and even earn surplus income. In this regard, the Administrator points out that the Deceased would have continued to receive rental income, post-retirement, from the Tanglin View and Duchess Avenue properties to meet his future expenses. While it may be the case that the Deceased would have received such rental income, we do not think that it would have been sufficient to match the post-retirement expenditure of the Deceased. It should be emphasised that the Deceased was also responsible for meeting the expenses of Ms Leong and this was likely to be the case even post-retirement. Therefore, in our view, a further discount has to be made to reflect the diminishment of the Deceased’s notional wealth during his post-retirement years.

In the light of the need to take the above two factors into consideration, and following the observations made above at [86], we would have been better assisted by parties if actuarial data had been furnished to enable us to determine the additional discount which should be adopted on account of accelerated receipt and also if expert evidence had been provided to project the post-retirement expenses of the Deceased.

Be that as it may, notwithstanding the limited evidence available to us, we are of the view that a total discount of 70% would be appropriate. By applying this discount to the sum of $587,000 per annum multiplied by 21 years (ie, $12,327,000), the figure which we derive at the end of Stage 2 is $3,698,100. We countercheck the reasonableness of applying this 70% discount on the basis that by applying a more conservative rate of return of 3% per annum (as compared to the 4% suggested by the court assessor), the future value of $3,698,100 after 36 years would amount to approximately $10,720,000. While this is a smaller figure than $12,327,000 which is the notional wealth of the Deceased at the end of his working life, as noted above, a discount has to be applied to account for the vicissitudes of life and the fact that his notional wealth would likely, to an extent, be diminished by his post-retirement expenses. It is our hope that in future cases parties would heed this call for better evidence and place the same before the court to enable it to arrive at a more objective and reasoned determination of the discount that should be adopted.

Stage 3: Apportioning the savings to the dependant

Both Dr Wong and the Administrator do not contest the Judge’s decision to attribute 52.5% of the calculated savings to the Children based on what was reflected in the Deceased’s last known will. Dr Zhu, however, raises a conceptual objection on the basis that the court should take into account the fact that although the Children may be dependants now, they may no longer be dependants at the end of the Deceased’s notional natural life.

Dr Zhu argues that as the law reforms were proposed with the decision of Lassiter in mind, no consideration was given to a case where a child may be a dependant now, but would no longer be a dependant at the end of the deceased’s natural life. In this respect, Dr Zhu relies heavily on the observations of Woo J in Lassiter (at [74]–[75]):

While Lassiter does call into focus some difficulties with a loss of inheritance claim, it is imperative to note that Woo J expressed the view that ultimately these complexities would be for Parliament to resolve. In response to this decision, s 22(1A) of the Civil Law Act was enacted. This provides the clearest indication that Parliament did not think that the complexities which Woo J foresaw should bar a dependant from claiming for a loss of inheritance. More importantly, it is also telling that Parliament did not see the need to place a cap on the quantum which may be recovered as was tentatively suggested by Woo J.

The fact that Woo J expressly detailed these concerns also militates against Dr Zhu’s objections that when the new sub-section was proposed by the Committee, it was done without consideration being given to the situation of a child-dependant who may no longer be a dependant at the end of the Deceased’s natural life. To the contrary, such a consideration was, in our view, very much alive in the Committee’s mind when proposing the amendments to the Civil Law Act. Quite apart from the fact that the proposals were made to specifically respond to the decision of Lassiter, which meant that Woo J’s observations must have been taken into account, several of the case authorities relied upon in the Committee Report involved factual matrixes where there was a child-dependant who might not be dependant for much longer.

For example, in the House of Lords’ decision of Taylor v O’Connor [1971] AC 115, a claim for loss of inheritance was allowed for a wife and a daughter who was 18 years old at the time when her father passed away at the age of 53 years. In this respect, Lord Reid noted (at 128) that:

Such an approach would also be consistent with the way that our courts have quantified claims relating to loss of CPF contributions, which as noted above, should be viewed similarly to a loss of inheritance claim. In Assessment of Damages: Personal Injuries and Fatal Accidents (LexisNexis, 2nd Ed, 2015), the learned authors noted that (at para 9-46):

Therefore, with respect to claiming for loss of CPF contributions, the fact that the dependants would cease to be dependants at the time when the monies could actually be withdrawn is not fatal to the claim. This should similarly be the case for a claim for loss of inheritance. This factor would only be relevant insofar as it affects the reasonable expectation of the dependant to receive the monies at the end of the deceased’s natural life. This was precisely the case in Gul Chandiram Mahtani where the court refused the daughter’s claim for loss of CPF contributions. In Gul Chandiram Mahtani, after considering all the circumstances, S Rajendran J concluded (at [32]–[33]) that:

From the above, it can be seen that the focus is still entirely on the “reasonable expectation” of the dependant and the fact that the child would no longer have been dependent on the deceased mother by the time she could have withdrawn her CPF monies was only one factor which the court took into account. It was also relevant in that case that the deceased hardly had any savings to begin with, which evidenced that it was unlikely that her CPF monies would constitute part of her estate.

The same cannot be said about the present case where the Deceased was an individual of substantial means and would have left a sum for the Children to inherit at the time of his death despite the fact that they may be financially independent by that time. We therefore agree with the Judge’s decision to award 52.5% of the Deceased’s accumulated savings for the Children’s loss of inheritance claim.

By applying 52.5% to the sum of $3,698,100 (see above at [141]), the Children are to receive $1,941,502.50 for their loss of inheritance claim.

Conclusion

In the light of the above reasons, we allow CA 127/2015 and CA 132/2015 in part by reducing the sum awarded for the Children’s loss of inheritance claim and by directing that the coroner’s inquiry fees be taxed. We also allow CA 131/2015 in part by increasing the sum awarded for the Children’s dependency claims. To summarise, the sums to be awarded to the respective dependants are as follows:

(a) Dependency claim of Ms Quek: $302,400.

(b) Dependency claim of the Children: $406,000 for Jo-Ann and $589,750 for Ryan.

(c) Loss of inheritance claim of the Children: $1,941,502.50.

Sundaresh Menon Chao Hick Tin Andrew Phang Boon Leong Chief Justice Judge of Appeal Judge of Appeal