Tan Harry and Another v Teo Chee Yeow Aloysius and Another

[1] The first and second plaintiffs, Harry Tan ("Mr Tan") and Veronica Yeo Kwee Cheng ("Mdm Yeo"), were the father and mother respectively of one Philip Tan Kok Leong (“Philip”). He died intestate on 1 October 1999 at the hospital of the second defendant Gleneagles Hospital Limited (“Gleneagles”) after an anaesthetic procedure administered by the first defendant, an anaesthetist by the name of Aloysius Teo Chee Yeow (“the Anaesthetist”). Philip was 35 years of age when he died. Mr Tan was 73 and Mdm Yeo was 60 at the time of his death.

[2] The Plaintiffs issued the present Writ of Summons claiming damages, both as dependants as well as administrators of Philip’s estate, for negligence against the Anaesthetist and Gleneagles.

[4] After hearing evidence and submissions, an Assistant Registrar (“AR”) made the following orders on 26 May 2003:

[5] Each of the different sides was dissatisfied with a certain aspect or aspects of the order and three appeals were filed.

[6] The Plaintiffs’ appeal covered various aspects:

[7] The Anaesthetist’s appeal was in respect of one point ie that certain assets inherited by the Plaintiffs should be deducted from the damages awarded to them as dependants.

[9] After hearing submissions, I dismissed the appeal of the Plaintiffs and allowed the appeals of the Anaesthetist and Gleneagles respectively.

[10] The Plaintiffs were represented by two counsel in the appeals before me. They were Mr Daniel John and Mr Marc Wang, both of whom advanced arguments as to why the damages awarded to the dependants should be increased, that is:

[11] They also argued that the apportionment between Mr Tan and Mdm Yeo of whatever was awarded to the Plaintiffs should be varied from 40:60 respectively to 30:70 respectively.

[12] On the multiplicand, the AR concluded that the annual salary of Philip would be calculated as follows:

The aggregate was about $66,390 per annum.

[13] Plaintiffs’ Counsel submitted that the multiplicand should be increased for post-trial damages and on this point raised many arguments.

[14] First, Plaintiffs’ Counsel submitted that account should be taken of the likelihood of an increase each year in Philip’s salary. Using past increases as a guide, as well as market surveys, Plaintiffs’ Counsel submitted that a median salary of $6,350 per month, instead of the last drawn salary of $5,850 per month, should have been used.

[15] In Ho Yeow Kim v Lai Hai Kuen & Anor [1999] 2 SLR 246, the Court of Appeal relied on evidence from the Institute of Technical Education (“ITE”) to estimate the deceased’s future income. This evidence was in turn based on a survey. While Plaintiffs’ Counsel relied heavily on this case, I was of the view that there was one significant difference between that case and the one before me. There, the deceased was still a student in ITE and had undergone about three months of his course in ITE before he was killed. Therefore, he was not earning an income at the time of his death. In such a situation, it was understandable why a court should rely on a survey of income which he might have earned. In the present case, Philip was already earning an income with KPMG as a tax manager and Mrs Helen Chiang, a representative from KPMG had given evidence. In such a situation, I was of the view that market surveys were irrelevant.

[16] While it was true that Philip had enjoyed some increases in the three years he had been with KPMG before he died, and while it would not be illogical per se to take into account future increases to derive a median salary which would be higher than the last drawn salary, I was mindful of the point that it is all too easy to assume that salaries would always increase. The past few years of financial turmoil have showed otherwise. Not only have salaries not increased, they have in many instances decreased and in some cases, jobs have been lost. To be fair, there was no evidence about a decrease in salaries for KPMG or a loss of jobs although bonus for 2002 had been reduced from two months to one month for an above average performer. However, on the other hand, Helen Chiang of KPMG was not inclined to be dogmatic about the likelihood of salary increases. She would say only that “the salary increment here is also very dependent on the economic situation and results of the firm” (NE 83).

[17] In addition, I accepted the argument of Counsel for the Anaesthetist, Mr Deepak Raja, and for Gleneagles, Mr Christopher Chong, that an increase in salary did not necessarily mean an increase in the amount given to or spent on the Plaintiffs. In Ang Song Huay v Chu Yong Thiam (Suit No 196 of 1993), Chao Hick Tin J (as he then was) said that, “It would have been quite natural that if the deceased earned more he would contribute more”. With respect, I agree, but the dependants there were the wife and two children. The same would not necessarily apply to aged parents. It all depends on the particular circumstances of the case.

[18] In the present case, Philip had worked for about eight years as a tax/audit assistant and then was promoted eventually to the post of manager with Ng Lee & Associates-DFK. On 19 May 1997, he joined KPMG as a Tax Supervisor and was then promoted to a Tax Manager. However, there was no real evidence that the amounts he had given to or spent on the Plaintiffs correspondingly increased, especially in the context of the last few years of his life. There was only a bare assertion by the Plaintiffs that as his income increased, his financial support would also have increased and a bare assertion about how his contributions to the Plaintiffs or for household expenses increased from $400 or $500 per month to $2,500 per month. Moreover, it was not as though the Plaintiffs were without any income. Mr Tan, the father, was drawing a pension of between $800 to $900 per month. In addition, apparently the eldest son Bernard was giving them $200 a month.

[19] In view of the absence of a positive assertion by KPMG about salary increases and more concrete evidence from the Plaintiffs of an increase in what they were receiving from Philip over the years and bearing in mind that the burden of proof was on the Plaintiffs, I declined to adopt a median figure to calculate the multiplicand. I was of the view that the AR was correct in using Philip’s last drawn salary as the basis for such a calculation.

[20] However, Plaintiffs’ Counsel sought to increase the multiplicand in other ways:

[21] On the question of Philip’s services, it was submitted that they amounted to $2,000 per annum for driving the Plaintiffs around especially on week-ends and $1,000 per annum as he had managed the house and handled the household finances including preparing tax returns, Mr Tan's CPF account, arranging for repairs and maintenance, re-financing loans to get the best interest rate, insurance policies and investments. On this point, Plaintiffs’ Counsel relied on, inter alia, Butterworths Personal Injury Litigation Service, at page II/101 which states:

[22] Plaintiffs’ Counsel also relied on Ng Siew Choo v Tan Kim Choon [1990] SLR 331. In that case, Yong Pung How J (as he then was) allowed the claim of the deceased’s mother in respect of her reasonable expectation of pecuniary benefit from her deceased son. However, the deceased there had been helping his mother to run an ice-water stall which appeared to have been a fairly successful business.

[23] On the evidence before me, Philip had driven the Plaintiffs to fish farms on week-ends but it was his hobby to rear fish, in particular, koi. He also brought the Plaintiffs to restaurants and to buy grocery.

[24] As for the allegation that Philip had been handling the household finances and preparing tax returns etc, the evidence on this was scanty. He had contributed to household expenses but there was hardly any evidence that he had managed them or did all the other work alleged for the benefit of the Plaintiffs. Philip had issued a cheque for Mr Tan's CPF account but that was probably a gift by Philip. In any event, I did not think that he was rendering a service for which a claim could be made when he wrote the cheque. I accepted Mr Chong’s argument that Plaintiffs’ Counsel were trying to extend the scope of Philip’s services from this one act.

[25] I was prepared to accept that Philip had helped out a little bit around the house. For example, he did help to paint the house on which I will say more later. However, this was not the kind of service for which the Plaintiffs were claiming. Besides, in the two joint affidavits of evidence-in-chief of the Plaintiffs, they themselves did not assert that they had enjoyed any of the alleged services mentioned in paragraphs 23 to 25 herein, such as to have a reasonable expectation of pecuniary benefit therefrom.

[26] Accordingly, I declined to add anything to the multiplicand for the alleged services rendered by Philip.

[27] As for taking into account Philip’s savings in addition to his CPF, Plaintiffs’ Counsel relied on, inter alia, Personal Injury Litigation Service, p 134:

[28] However, it must be borne in mind that in Taylor v O’Connor, the dependants were the deceased’s wife, who was one year younger than him, and his daughter who was 18 years of age at the time of his death. The House of Lords was therefore prepared to take into account the savings of the deceased because the savings would ultimately have gone to the wife and the daughter. For example, at p 477, Lord Reid said:

At p 488, Lord Pearson said:

[29] As regards Philip's CPF, Plaintiffs’ Counsel relied on two cases. The first was Singapore Bus Service (1978) Ltd v Lim Soon Tong [1985] 1 WLR 1075, but there again the dependants were the deceased’s younger wife and children. There the Court of Appeal said:

[30] On further appeal, the Privy Council said:

[31] The second case was Tay Say Moi & Ors v Mua Hin Poultry Farm Pte Ltd (Suit No 558 of 1989), an unreported decision of Lim Teong Qwee JC. There again, the dependants were the deceased’s wife, who was of the same age as him, and a daughter who was only three years of age at the time of his death. Furthermore, it appears that it was undisputed there that the contributions to the deceased’s CPF account should be taken into account in the dependants’ claim.

[32] In the case before me, the dependants were aged parents of Philip. But for the incident at Gleneagles, Philip would have probably out-lived them and this was accepted by Mr Tan. Philip’s savings then would probably have gone to his siblings or sibling instead. Mdm Yeo had two daughters from an earlier marriage and three sons from her marriage with Mr Tan. I have already referred to Bernard as the eldest son. Philip was the second son and Cornelius was the youngest.

[33] Indeed, Plaintiffs’ Counsel acknowledged in their written submissions that Philip would have probably out-lived the Plaintiffs. Hence, they did not claim 100% of his savings or of the CPF contributions he would have acquired (see Amended Annex A, para 6, of their Submissions).

[34] The AR took into account 10% of Philip's CPF but nothing for the savings. As I have said, Plaintiffs’ Counsel sought 50% from the savings in addition to the 10% from Philip's CPF already awarded. The reason from Plaintiffs’ Counsel for the differentiation between 50% and 10% was that Philip's CPF would not be available whereas the savings would be. However, this reasoning was not correct because on the death of Philip, his CPF would be immediately available. Accordingly, I did not see why there should be a difference between his savings and CPF. In principle, if a percentage is allowed, the same percentage should apply to each.

[35] Mr Chong had submitted that the Practitioners’ Library, Assessment of Damages, Personal Injuries & Fatal Accidents, did not suggest that savings be taken into account. However, neither did it assert that savings be excluded.

[36] It seemed to me that savings is generally not mentioned as a factor to be taken into account in dependency claims because the usual approach is to split the deceased’s income into what he would have spent on himself and on his dependants ie a two-way split instead of a three-way split which would then include savings. Indeed the Practitioners’ Library recognises the two-way split as the alternative approach to adding up all the benefits received by dependants (see p 708). However, in the case before me, the AR had split Philip’s income three ways including savings and the parties had proceeded on a three-way split.

[37] So, coming back to savings, as well as Philip's CPF, one could argue that nothing should be added to increase the multiplicand since in all likelihood, Philip would have outlived the Plaintiffs, but for the incident. On the other hand, it could also be argued that they should be given something, although much less than 50% to reflect that there was some likelihood of their surviving him, even though such a likelihood was slim. In other words, it should not be nil or zero since he could have died from an illness before his parents passed away. However, if I were to attribute, say, a 5% figure for this slim chance then conversely, where the dependant is a younger spouse, I might have to attribute, say, 10% to 25% for the chance that she might not in fact survive the deceased. In the latter situation, 10% to 25% of the inherited assets might then have to be deducted from the dependency claim, unless excluded by legislation or the case-law. I will say more later on the question of deducting assets inherited, outside of an estate claim, from a dependency claim.

[38] After some reflection, I decided not to allow even a small percentage for the possibility that the Plaintiffs might have outlived Philip in the absence of the incident. The assessment of damages is complex enough without such fine and arbitrary distinctions being made. I would also not have increased the multiplicand by adding anything from Philip's CPF. However, as neither Defendant appealed against the AR’s decision to do so nor sought that item to be excluded, that item remains.

[39] I now come to the point about renovations. As I have said, Plaintiffs’ Counsel argued that the multiplicand should be increased because Philip had paid for renovation expenses. The Plaintiffs had also claimed that Philip had discussed with them about future renovations.

[41] As for future renovations, I accepted Mr Chong’s argument that Mr Tan’s evidence had shifted. In para 23 of the Plaintiffs’ first joint AEIC, it was asserted that in or around 1997, Philip had discussed his plans to repair the roof and renovate the backyard and a quotation of around $60,000 was obtained. However, the quotation was not adduced in evidence and in cross-examination, Mr Tan said he received a quotation for $360,000 instead.

[42] To reinforce the point that Mr Tan was not credible, Mr Chong also drew my attention to another aspect of Mr Tan’s evidence. When Mr Tan was asked whether Cornelius was staying in a hostel, Mr Tan denied this. Yet in the joint AEIC, a bill from NTU demonstrated that hostel charges were being billed for Cornelius. When this was drawn to Mr Tan’s attention, he said the hostel charges were actually for Cornelius’ friend whose name he did not know (NE 40).

[43] In the circumstances, I was not minded to accept that Philip's alleged contributions to renovations should increase the multiplicand.

[44] The next argument of Plaintiffs’ Counsel was that the AR was wrong in attributing 40% of Philip’s aggregate annual income as surplus available to the Plaintiffs, with 33% being spent on himself and 26% being saved by Philip.

[45] Plaintiffs’ Counsel submitted that the percentage should be more ie 65% instead of 40% because of the following special circumstances:

[46] On this point, Mr Raja submitted that there was no case in which parents as dependants had received more than 40%. In Ho’s case, the dependent parents received 40%.

[47] Mr Raja also argued that the alleged bond and the allegation that Philip was unlikely to get married had to be translated into something concrete.

[48] I noted that the initial evidence of the Plaintiffs was that Philip had supported them with an average monthly sum of $2,500 ie $1,200 per month for Mr Tan and $1,300 per month for Mdm Yeo. Therefore, even if it was true that there was a special bond between Philip and the Plaintiffs, especially Mdm Yeo, this would already be factored into the Plaintiffs' assertion of $1,200 and $1,300 per month for Mr Tan and Mdm Yeo respectively. Furthermore, the $2,500 per month was about 49% of Philip’s take-home pay, including one month’s bonus ie (80% of $5,850) x 13 months ÷ 12 = $5,070 per month ie $2,500 is about 49% of $5,070. Although this calculation excluded car park allowance, it also excluded income tax. According to Mr Chong, the Plaintiffs’ appeal for 65% was an attempt to ask for more than the $2,500 per month they had initially alluded to. I agreed.

[49] I was also of the view that the Plaintiffs’ assertion that Philip had contributed an average of $2,500 per month was itself suspect, to put it mildly. The evidence from Philip’s bank accounts did not support a regular withdrawal of any sum, whether it be $2,500 or smaller sums if he was contributing at shorter intervals than a month. The evidence from his bank accounts was too vague. Significantly, there was also no evidence from the Plaintiffs’ bank accounts to support their assertion.

[50] On this point, I digress to mention that the Plaintiffs had sought to introduce further evidence on some bank accounts for pre-1999 during submissions after evidence had been given, but the attempt was rightly rejected by the AR. I also rejected the admissibility of such evidence when the same attempt was made before me.

[51] I would add that Mr Tan had also given a list of expenses which Philip had purportedly paid for. Even if this approach was to be taken, instead of using a percentage of Philip’s income to determine his contribution to the Plaintiffs, I was of the view that much of the expenses was exaggerated or not applicable for the detailed reasons advanced by Mr Chong. I need not say more on this as neither side was really relying on this approach.

[52] As for the unlikelihood of Philip getting married, this was only an unlikelihood and not a certainty. Besides, as Mr Chong had submitted, the unlikelihood of marriage would not increase the amount Philip would have provided the Plaintiffs. He was already single. While the prospect of marriage, if likely, would reduce the amount he was providing the Plaintiffs, the converse did not apply.

[53] As for Philip’s frugality, I accepted Mr Chong’s argument that this frugality worked against, rather than for, the Plaintiffs. It meant that Philip’s regular contributions to them would then be less, not more. Whether part of his savings should be taken into account to increase the multiplicand was a separate matter which I have already dealt with above.

[54] There is one other observation I wish to make. The AR had included dividends from Philip’s shares and stocks in his calculation of the multiplicand. As the shares and stocks would be inherited by the Plaintiffs, they would get the dividends directly. Accordingly, the dividends should not have been included in the calculation of the multiplicand. However, the dividends were not the subject of appeal or argument by either of the Defendants.

[55] In summary, I did not think that the multiplicand should be increased.

[56] On the multiplier, Plaintiffs’ Counsel suggested that this should start from the date of assessment of the damages in respect of post-trial damages, relying on Gul Chandiram Mahtani v Chain Singh [1995] 1 SLR 155. There the court said, at para 28 of the judgment, that the multiplier to be used in assessing the post-trial damages was to be applied from the date of trial, meaning the date of assessment. Plaintiffs’ Counsel were claiming 5½ years for Mr Tan and 19½ years for Mdm Yeo from the date of assessment. As the assessment was some three and a half years after the date of Philip’s death, Plaintiffs’ Counsel were effectively seeking 9 and 23 years respectively from the date of death.

[57] The AR had awarded five years and eight years to Mr Tan and Mdm Yeo respectively from the date of death.

[58] Mr Raja submitted that the multiplier should be computed from the date of death as stated in Muthan Sinnathambi v Puran Singh [1992] 2 SLR 103 at p 107 at F where Yong Pung How CJ followed the House of Lords’ decision in Cookson v Knowles [1979] AC 556. Mr Raja distinguished Gul Chandiram on the basis that no pre-trial damages were awarded there. Mr Raja also said that Muthan Sinnathambi was cited in the Practitioners’ Library at p 710 for the proposition that the calculation of a multiplier is from the date of death.

[59] Plaintiffs’ Counsel also submitted that some reliance should be placed on actuarial tables as suggested in Wells v Wells [1999] AC 345. Counsel then referred to tables recommended by the UK Law Commission in Report No 263. For Singapore, they relied on a Straits Times article dated 15 April 2000 entitled “Longer life, healthier life”. However, that was not an actuarial table as such. Plaintiffs’ Counsel also conceded that, so far, Singapore courts had not relied on actuarial tables although they submitted that there was no express rejection of actuarial tables either.

[60] Plaintiffs’ Counsel then sought to rely on the same factors ie the alleged close bond between Philip and his mother and the unlikelihood of his marrying to increase the multiplier.

[61] Mr Raja submitted that UK actuarial tables were not applicable to Singapore. As for the Straits Times article, he submitted that the author was not called and that in any event the life expectancies mentioned therein were based on those taking hormone supplements.

[62] On his part, Mr Chong relied on statistics from the Ministry of Health to counter the Straits Times article. He also submitted that based on a number of past local precedents, the AR’s multiplier of five years and eight years for the father and mother respectively were fair. He stressed that Plaintiffs’ Counsel had not produced any local precedent different from his precedents.

[63] I noted that the approach of using the date of death for the multiplier has been criticised. Butterworths Personal Injury Litigation Service states, at p II/403 to 404:

[64] Although there was some force in the criticisms of the conventional approach, I was of the view that it was too well-entrenched for the High Court to depart from it. Accordingly, the multiplier was to be from the date of death.

[65] I would add that if the multiplier was to be computed from the date of assessment, then the multiplier would probably be reduced although, even with the reduction, the Plaintiffs would probably still have gotten more after taking into account the pre-trial damages.

[66] As for actuarial tables, Singapore courts have not relied on such tables as recognised by Plaintiffs’ Counsel. Aside from the vagaries or contingencies of life which the House of Lords in Wells v Wells has criticised as a factor having to be taken into account, there is also the question of accelerated payment in one lump sum. In any event, as the Plaintiffs had not proved the actuarial tables applicable for Singapore, it was not necessary for me to decide whether to adopt the same.

[67] As for the alleged special bond and unlikelihood of marriage, I was of the view that these factors were irrelevant to the multiplier.

[68] In view of the local precedents cited by Mr Chong, I was of the view that the AR’s multiplier for each of the Plaintiffs was fair, if not a bit generous.

[69] As I have mentioned, the AR had apportioned the multiplicand 40:60 between Mr Tan and Mdm Yeo respectively. However, Plaintiffs’ Counsel sought the apportionment to be 30:70 respectively. In view of the fact that the Plaintiffs themselves had asserted that Philip had contributed $1,200 to Mr Tan and $1,300 to Mdm Yeo monthly, there was clearly no basis for their Counsel to seek a 30:70 apportionment. This submission was made only because the multiplier for Mdm Yeo was higher than for Mr Tan.

[72] Mr Chong pointed out that in so far as Plaintiffs’ Counsel were relying on the unreported judgment of the High Court in Chong Khin Ngen & another as administrator/administratrix respectively of the Estate of Chong Yun Jing, deceased v Lim Djoe Phing, Suit 791 of 1987, in which the High Court allowed a claim for Counsel’s fees for attendance at the CI, the defendant in that case was not present before the court and hence no argument to the contrary was presented. There Amarjeet Singh JC said:

Mr Chong also relied on Carpenter v Beck 145 DLR (4) 574, where the Manitoba Court of Appeal disallowed a claim for Counsel’s costs in attending an inquest into the death of the victim. Mr Chong also submitted that neither the Anaesthetist nor Gleneagles were named as potential defendants. Thirdly, the Coroner’s findings did not attribute any negligence to either the Anaesthetist or Gleneagles.

[76] There was some unchallenged evidence that Philip was in tears at some point in time during the day before he died although he was supposed to be comatose. The AR awarded $2,500 for pain and suffering while the Plaintiffs had sought and continued to seek $25,000.

[77] Plaintiffs’ Counsel relied heavily on Thangavelu v Chia Kok Bin [1981] 2 MLJ 277 where $20,000 was awarded for pain and suffering. However, as Mr Raja pointed out, the victim there had responded to stimuli for one year before he died. Mr Raja then relied on See Ah Hwa & anor v Ong Hock Thian [1985] 2 MLJ 7 in which the victim lived for a day before he died. There, the award for pain and suffering was reduced from $3,000 to $1,000.

[78] In the circumstances, I was of the view that the AR’s award of $2,500 for pain and suffering was not too low.

[79] In the appeal before me, the Plaintiffs claimed $20,000 as aggravated damages. Mr Chong resisted this claim on various grounds.

[80] First, neither this item nor the grounds for claiming it was pleaded. Bullen & Leake & Jacob’s Precedents of Pleadings, Fourteenth Edition, 2001, states at para 2-07, “If the claimant wishes to claim aggravated or exemplary damages the Particulars of Claim must include a statement to that effect and the grounds for making those claims”.

[81] Secondly, aggravated damages were claimable in instances of assault, false imprisonment, malicious prosecution, libel and slander and trespass but not in negligence. Hence, while Plaintiffs’ Counsel relied on Appleton & others v Grant 34 BMLR 23, the question of such damages was considered there in the context of trespass to the person and not negligence. Indeed, in that case, Dyson J said:

[82] Thirdly, Dyson J also said:

[83] According to Mr Chong, there was no evidence of such conduct or motive on the part of either of the Defendants. I agreed. I also did not accept that actions or omissions per se on the part of the Anaesthetist and/or the staff of Gleneagles constituted such conduct. Accordingly, the omissions to insert a laryngeal mask airway, called an “LMA”, and to use a fresh tracheotomy tube did not amount to arrogance. Also, the argument that Philip had put his absolute trust in the Anaesthetist had nothing to do with the Anaesthetist’s conduct. In view of the absence of evidence as well as the point that this claim and its grounds were not pleaded, I did not allow the Plaintiffs’ claim for aggravated damages. Accordingly, it was also not necessary for me to decide whether a claim for such damages was allowable in principle in respect of a negligence claim.

Whether certain assets inherited by the Plaintiffs, outside of an estate claim in court, should be deducted from their dependency claim

[84] As Philip had died intestate and had no spouse and children, his parents were his sole beneficiaries. They inherited the following:

[85] Dr Myint Soe, who presented arguments on this issue for the Anaesthetist accepted that by statute, assets (a) to (c) were not deductible. However, he argued that assets (d) to (g) were deductible. Assets (d) to (g) totalled $194,770.37. This issue was the most significant to the dependency claim. It was not disputed that, where the beneficiaries are the same, amounts received as general damages under an estate claim in court would be deducted from the dependency claim. However assets (d) to (g) were not part of an estate claim by the Plaintiffs.

[86] In Davies v Powell Duffryn Associated Collieries Limited [1942] AC 601, Lord Russell said, at p 606:

[87] The AR did not agree that Davies v Powell was authority for the proposition that any pecuniary benefit must be deducted from the dependency claim, without more. He cited from the judgment of Lord Macmillan, at p 609 of Davies v Powell:

[88] In the AR’s view, a benefit “in consequence of the death of the deceased” meant a benefit payable on a claim because of the tort and not an inheritance outside of a claim.

[89] The AR also said:

[90] The AR was also of the view that when, in England, the Administration of Justice Act 1982 abolished the estate claim for lost years, there was a quid pro quo, because s 4 of that Act specifically excluded “the deduction of such a claim from the dependant’s claim”. However, he recognised that in Singapore, the estate claim for lost years was abolished by an amending legislation in 1987 but Singapore did not adopt s 4 of the Administration of Justice Act 1982. Notwithstanding that Singapore had not adopted s 4, the AR said he would not draw any inference from this omission.

[91] I would add that in Davies v Powell, the issue was actually whether damages under the Law Reform Act in respect of an estate claim would have to be taken into account in assessing damages for a dependency claim under the Fatal Accidents Acts. The question was not whether an inheritance would have to be taken into account in assessing a dependency claim. Notwithstanding that, Davies v Powell appears to have been considered to be of a much wider application than the AR favoured. That is why over the years judicial and legislative intervention came into play. If it was of the limited application favoured by the AR, such intervention would have been unnecessary.

[92] For example, McGregor on Damages, Sixteenth Edition, 1997, states at para 1816 to 1818:

[93] Similarly, p 151 and 152 of Damages for Personal Injuries and Death by John Munkman, Tenth Edition, 1996, states:

[94] I digress to mention that according to McGregor on Damages, Fourteenth Edition, 1980, at paras 1328 and 1329, s 4 of the Fatal Accidents Act 1976 excluded only four categories of benefits ie insurance money, benefit under enactments relating to social security, pension or gratuity paid or to be paid as a result of death. This appears to be borne out upon a consideration of s 4 of the 1976 Act. Accordingly, s 4 of the Administration of Justice Act 1982 was not merely a re-enactment of s 4 of the Fatal Accidents Act 1976.

[95] In any event, s 4 of the Administration of Justice Act 1982 was not confined to the exclusion of a claim for lost years. In my view, it was not a quid pro quo for the abolition of the estate claim for lost years. Once the claim for lost years was abolished, there was no need to deduct it from a dependency claim. Moreover, s 4 of the Administration of Justice Act 1982 effectively excludes all benefits which have accrued or will accrue to any person from a deceased’s estate or otherwise as a result of his death in assessing damages under that Act. Furthermore the history of the amendments to our Civil Law Act in respect of assessment of damages for death suggests that often we had followed amendments in English legislation but not in respect of s 4 of the Administration of Justice Act.

[96] I was of the view that the AR had erred when he effectively adopted s 4 of the Administration of Justice Act 1982 when our Parliament had not done so. As our Civil Law Act stood at the material time and still stands, only the following are not to be taken into account in assessing general damages on a dependency claim:

[97] The question therefore was whether the common law excluded assets like (d) to (g) from deduction. The AR was concerned that if inherited assets were to be deducted from a dependency claim, dependants of a deceased with deep pockets would always be deprived of their dependency claim. However, I was of the view that he had not distinguished between dependants who were older and those who were younger than the deceased. In the latter situation, no deduction should be made because the dependants would in any event ultimately inherit the assets, although at a later time. Whether there should be a deduction for acceleration of benefit would be a different question. This was answered in the negative by the Privy Council in Kassam v Kampala Aerated Water Co Ltd [1965] 2 All ER 875 which was cited with approval by Choor Singh J in Ng Siew Cho v Tan Kian Choon [1990] SLR 331.

[98] The case for dependants who are aged parents is not necessarily the same as that for younger dependants. Hence, Dr Myint Soe relied, inter alia, on para of 1255 of McGregor on Damages, Thirteenth Edition, 1972. That passage is reiterated in its Fourteenth Edition, 1980, at para 1347 and it states:

[99] However, Plaintiffs’ Counsel sought to rely on the next para which states:

[100] In my view, the last clause of para 1348 of McGregor does not contradict or subvert para 1347. What I believe it means is that not every asset or sum received from the deceased’s estate must be deducted.

[101] As Munkman has mentioned, assets like a family home have been judicially excluded. Hence cases like Heatley v Steel Co of Wales [1953] 1 All ER 489, Daniels v Jones [1961] 3 All ER 24 and Neo Sun Thun & Anor v Ng Peng Hui [1975-1977] SLR 345 did not really advance the Plaintiffs’ case. In the first and third cases, the question was whether a family home should be deducted. In any event, in all the three cases, the dependants were not aged parents.

[102] In so far as the AR had sought to rely on Ng Siew Cho v Tan Kian Choon [1990] SLR 331 and Hongkong Bank Trustees (Singapore) Ltd v Rajinder Singh for his conclusion, those two cases did not actually deal with the question of deducting inherited assets from a dependency claim where the assets were outside of an estate claim in court.

[103] With respect, I also did not agree with the AR’s view that it would be quite absurd for a tortfeasor’s liability to vary depending on whether the deceased happened to have willed his estate to someone other than the dependant. The very nature of a dependency claim is such that a tortfeasor’s liability and the extent thereof are dependent on many fortuitous circumstances, for example,

[104] So, here, in the present case before me, the dependants were aged parents who in all probability would have pre-deceased Philip but for his untimely death. Secondly, assets (d) to (g) were not the family home, although asset (f) was a car which had been excluded before, according to Munkman. I was of the view that, in principle, para 1347 of McGregor should apply. There was no reason in principle why monies received on an estate claim in court should be deducted from a dependency claim where the beneficiary of both was the same but monies, or assets, received through inheritance but outside of an estate claim in court should not be deducted from a dependency claim. This was subject to the qualification mentioned above ie no such deduction should be made where the dependants would eventually have received the monies or assets anyway, for example, where the dependants were a younger spouse and children.

[105] As for the car, no authority was cited in Munkman for excluding the car from deduction. In any event, it seemed to me that the reference to a car “already enjoyed” was probably to a family car ie one used frequently, if not daily, for the benefit of the deceased and his immediate family. In the case before me, the car was mainly used by Philip. His parents had a limited enjoyment of the car when he brought them to fish farms on week-ends or to restaurants or to buy grocery. After Philip’s death, they were not using the car and could sell it. If they wanted to allow any of the other children to use the car, that would be a different matter but the Defendants should not have to pay for their generosity. In the circumstances, I was of the view that the value of Philip’s car should in principle also be deducted from the dependency claim.

[106] As the dependency claim is less in value than assets (d) to (g) inherited, the end result is a nil amount for the general damages under the dependency claim.

[107] In summary,

[108] Subsequent to my oral decisions on the various appeals, Counsel for each Defendant took the position that each Defendant was entitled to the benefit of the other's successful appeal.

[110] Mr Raja relied on Mallal's Digest of Malaysian and Singapore Case Law Fourth Edition 2001 Reissue Volume 2(1) Civil Procedure which refers to MBA Life Assurance v Yeo Hua San & Ors Civil Suit No. D5-22-380-91. At page 141 it states:

[111] In my view, paragraph (1) of the holding, which Mr Raja relied on, did not help the Defendants.

[112] The fact that an appeal from a registrar operated as a rehearing did not necessarily mean that a party should be allowed to argue against that part of the registrar's decision which he was dissatisfied with, without filing a Notice of Appeal. Accordingly, Mr Raja's reliance on other cases for the general proposition that the hearing before me was a rehearing did not advance the matter any further.

[113] However, Mr Raja also relied on Singapore Civil Procedure 2003 at para 56/1/3 which states:

[114] This passage appears to have been adopted from the English The Supreme Court Practice 1997 Vol. 1 at para 58/1/2.

[115] The Times Law Reports of 25 November 1991, in referring to Europa Property, states:

[116] Mr Raja submitted that the approach in Europa Property had been followed in other cases.

[117] In Silverlink (Hong Kong) Finance Ltd v Zhang Sabine Soi Fan (1999) 85 HKCU 1, the plaintiff's claim was for non-payment of a cheque drawn by the defendant for HK$38,434,600. On the plaintiff's application for summary judgment, the Master ordered judgment to be entered for HK$7 million and gave unconditional leave to the defendant to defend the balance. The defendant appealed contending that the unconditional leave should have applied to the whole claim. The defendant's Notice of Appeal was filed apparently within the prescribed time-frame. The plaintiff did not file any Notice of Appeal but by a letter some three weeks after the defendant had filed the Notice of Appeal, informed the defendant's solicitors that since the appeal was a complete rehearing, the plaintiff would be seeking judgment for the full sum claimed at the hearing of the appeal.

[118] Suffiad J mentioned Europa Property with approval and, after taking into account the letter from the plaintiff, said that the defendant was not taken by surprise or prejudiced and he would treat the plaintiff 's submissions as a cross-appeal for judgment for the full sum. However, his conclusion was to allow the defendant unconditional leave to defend the entire claim.

[119] In Shade v Compton Partnership (2000) PNLR 218, the plaintiff had issued a writ against his former solicitors for negligence. The defendants then applied to strike out the statement of claim on various grounds. The Master made an order striking out paragraphs 7 and 8 of the prayer on the basis of time-bar. Some eight and a half months later, the plaintiff filed an appeal against the Master's decision. Instead of objecting, the defendants sought to rely on Europa Property. The judge before whom the appeal was heard found that the defendants had given notice to the plaintiff that if he pursued his appeal, they would seek to persuade the judge to strike out the entire claim. The judge dismissed the plaintiff's appeal and struck out the entire claim. The plaintiff was granted leave to appeal to the Court of Appeal.

[120] The Court of Appeal cited Europa Property with approval. Robert Walker LJ said that the defendants had assumed that their letter would be accepted as sufficient notice of cross-appeal and therefore did not oppose the plaintiff's appeal on the basis of long delay. He also said that the judge below was well within his case management powers in treating the letter as an informal notice of cross-appeal. The plaintiff was not ambushed at all. Brookes LJ said that Balcombe LJ's decision in Europa Property was not confined to an Order 14 application. In the view of Brookes LJ, when the plaintiff filed his appeal, "he threw open for consideration by the judge in chambers to whom he was appealing the whole of the issues which were raised on that part of the summons".

[121] I must say that I was surprised by the passage from Singapore Civil Procedure which was cited by Mr Raja and the cases he referred to.

[122] As Mr Raja conceded, it has not been the practice of Singapore courts in civil proceedings to adopt an approach similar to the one in Europa Property. I was not quite sure what was meant therein by there being no provision for a formal notice of cross-appeal. If that meant that the other party could not subsequently file a cross-appeal out of time in response to the first notice of appeal filed, that is also the position in Singapore. However, if that meant that an unsuccessful plaintiff could not file a notice of appeal to the judge-in-chambers in an O.14 application, that is not the position in Singapore.

[123] In Singapore, an unsuccessful litigant, whether plaintiff or defendant, may file an appeal to the judge-in-chambers from a decision of a registrar. This applies generally and is not confined to O.14 applications.

[124] If an unsuccessful plaintiff does not file an appeal, then, as far as I am aware, he is precluded from raising any argument before the judge-in-chambers which would effectively allow him to appeal out of time. A letter sent out of time will not, generally speaking, suffice to constitute as an appeal filed within time. To allow the letter to constitute such an appeal would be to allow the litigant to circumvent the time-frame for filing the appropriate Notice of Appeal.

[125] In Shade, the Court of Appeal was prepared to treat the defendants' letter as sufficient notice of appeal because the plaintiffs' own notice of appeal was filed out of time.

[126] Although there was no prejudice to the Plaintiffs in the sense that Plaintiffs' Counsel did have the opportunity to and did address the arguments raised in respect of each of the Defendant's appeals, this did not mean that there would be no prejudice to the Plaintiffs whatsoever if I were to allow one Defendant to have the benefit of the success of the appeal of the other Defendant. Obviously there would be prejudice to the Plaintiffs if I were to do so. For example, if Gleneagles was not entitled to the benefit of the Anaesthetist's appeal, Gleneagles would still be liable to pay the dependency claim of the Plaintiffs. Likewise, the Anaesthetist would still be liable to pay the Plaintiffs the $20,000 in respect of the CI.

[128] Thirdly, each of the Defendants did in fact file a Notice of Appeal. Each had elected to confine his/its Notice of Appeal to a particular item, leaving aside the point that the Notice of Appeal of the Anaesthetist was not well-drafted in the first place.

[129] Fourthly, in the course of arguments before me, each Counsel had kept to the ambit of the Notice of Appeal of his client.

[130] As for Mr Chong, he argued that since the liability of the Defendants under the interlocutory judgment was effectively joint and several, each must be entitled to the benefit of the other's successful appeal. Otherwise the liability of each would be several and not joint, in so far as he/it was not given the benefit of the other's success. In my view, while it was true that the liability of both Defendants under the interlocutory judgment was intended to be joint and several (although not specifically stated as such), the ultimate liability for various sums would still depend on what transpired at the assessment of damages and any appeal therefrom. In the circumstances, I was of the view that the Defendants should not be allowed to use the interlocutory judgment as an excuse to get what they did not seek in their respective Notices of Appeal.

[131] Mr Chong also submitted that paragraphs 6 and 7 of the judgment of the Court of Appeal in Chang Ah Lek suggested that the High Court had, in that case, allowed a claim for future medical expenses even though this was not part of an appeal. However, it was not clear to me whether this was in fact the case. Moreover, it appeared that the point was not in issue before the High Court or the Court of Appeal in that case.

[132] In the circumstances, I was not minded to allow one Defendant to have the benefit of the success of the appeal of the other Defendant and I ruled accordingly.