Amar Hoseen Mohammed Revai v Singapore Airlines Ltd

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 20 August 1994
• Neutral Citation: [1994] SGHC 213
• Docket Number: Suit No 2321 of 1993
• Date: 20 August 1994
• Published date: 19 September 2003
• Year: 1994
• Plaintiff Counsel: Surian Sidambaram and Gurdeep Singh (KS Chia Gurdeep & Param)
• Citation: [1994] SGHC 213
• Defendant Counsel: Tan Joo Thye (Rodyk & Davidson)
• Court: High Court (Singapore)
• Subject Matter: Security for costs,Costs,Plaintiff not ordinarily resident in Singapore -Discretionary power of court to order security for costs,Air law,International Law,Grounds upon which court isto exercise discretion,arts 7, 28(1) & (2) Carriage of Air Act (Cap 32A, 1989 Ed),0 23 r 1(1) Rules of the Supreme Court 1990,Applicability of international conventions,Civil Procedure

Cur Adv Vult

There were two appeals filed by the plaintiff against the decisions of the learned assistant registrar:

(1) ordering the plaintiff to give security for costs of $15,000;

(2) giving the defendants leave to amend the defence.

I set aside the order of the learned assistant registrar ordering the plaintiff to provide security for costs of $15,000 and dismissed the appeal granting leave to amend the defence.

The defendants are now only appealing against the order I made on security for costs.

The question was whether the plaintiff, a foreigner not ordinarily resident in Singapore, should be ordered to give security for costs.

The plaintiff is a businessman carrying on business in Jordan. The defendants are an international air carrier incorporated in the Republic of Singapore, with branch offices worldwide.

The defendants had agreed to fly the plaintiff from Singapore to Sydney under a contract of carriage dated 17 February 1992. It was an implied term of the contract of carriage that the defendants would fly the plaintiff safely to his destination.

Background - plaintiff`s case

The plaintiff boarded the defendants flight number SQ221 in Singapore for Sydney on the 20 February 1992. Whilst the aircraft was in flight, the plaintiff was walking in the aisle of the aircraft when he slipped and fell, and suffered injuries to his head and neck because of a piece of butter which had been negligently dropped and allowed to remain on the floor of the aisle by the defendants` servants and or agents on board the aircraft.

The plaintiff was attended to by a doctor on board and given oxygen by the cabin crew. He was subsequently taken to St George`s Hospital in Sydney on 21 February 1992 in an ambulance. The plaintiff complained of blurred vision and dizziness. The doctor found sub-occipital tenderness but the x-rays taken of the skull and neck were normal. The plaintiff was discharged with his neck in a support collar.

Dr TK Tse examined the plaintiff in Australia on 24 February 1992 and expressed the opinion that the plaintiff was suffering from head injury. The plaintiff was warned of signs of severe headaches, vomiting and drowsiness and to seek immediate medical attention when they occur. He was told that if the giddiness persists, a CT scan may be called for.

Dr TK Tse examined the plaintiff again on 2 March 1992, after the plaintiff complained of pain in the neck and giddiness and was treated with a collar support.

Dr Said M Abderahman, a consultant neurosurgeon in Jordan, examined the plaintiff and expressed the opinion that the plaintiff was suffering from head injury post-concussional syndrome on 10 March 1991. The plaintiff was told to continue with conservative treatment and home rest and to see the consultant again two weeks after 10 March 1991. The examination on 10 March 1991 showed that the movements of the neck were limited in all directions and there was tenderness along the back of the neck and an area of tenderness on the superior aspect of his skull but no abnormal neurological signs were detected.

In his medical report of 12 April 1992, Dr Ali Hussein Qasem has said that he examined the plaintiff and that on examination, the movements of the neck were limited in all directions and that there was tenderness along the back of the neck. The plaintiff was treated conservatively with a support collar. Dr Ali Hussein Qasem visited the plaintiff everyday during the period 12 March 1992 to 12 April 1992 when the plaintiff was resting.

Dr AA Abu Farheh is a neuropsychiatrist in Jordan. In his report dated 13 May 1992, the doctor reported that he reviewed the medical reports and found that the plaintiff had a head injury on 20 February 1992. The plaintiff`s assistant, wife and sister-in-law confirmed the plaintiff`s complaints of nervousness, bad memory and drowsiness. Dr Abu Farheh found the plaintiff to be in an anxious mood, irritable and with decreased concentration. He was of the opinion that the plaintiff was suffering from a post head injury neurosis. His diagnosis was that the plaintiff had neurotic disability and that neurotic disability may last long and that a final report about the plaintiff`s condition needs close follow-up for a period of 18 months. The plaintiff was recommended to do an EEG, to take prescribed drug medication, not to travel alone or make serious decisions on his own.

Dr Rawya Borno is a consultant psychiatrist in Jordan and in his report dated 13 July 1992, he has stated that there was firm evidence that the plaintiff had improved during the last two months and that the symptoms were expected to improve and the treatment required was symptomatic in nature. Follow-up was required but the duration of it was difficult to predict. The prognosis of the case was good because the plaintiff had shown improvement.

The plaintiff alleged that the defendants had acted in breach of the contract of carriage and that the plaintiff had suffered loss and damage. The plaintiff relies on art 17 of the Warsaw Convention as enacted in the Carriage of Air Act (Cap 32A, 1989 Ed) which provides:

The carrier is liable for damage sustained in the event of death or wounding of a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any operations of embarking or disembarking.

The plaintiff alleges negligence on the part of the defendants in:

(1) failing to ensure that the common aisle on board on which passengers were expected to walk was safe and free from slippery materials;

(2) dropping or allowing a piece of butter to remain on the cabin floor aisle during the flight;

(3) failing to warn or in any manner alert the plaintiff of the slippery material condition of the aisle;

(4) failing to take reasonable measures to prevent accidents of the type that occurred to the plaintiff from happening.

Defence

The defendants, inter alia, rely on art 20(1) of the Warsaw Convention as amended by the Hague Protocol (the Amended Warsaw Convention) and say that they are not liable for the damage suffered by the plaintiff as the act was caused wholly or contributed to by the negligence of the plaintiff in:

(1) his failing to keep a proper lookout and to notice the presence of the alleged butter (if any);

(2) failing to observe where he was going while walking along the aisle;

(3) stepping on the alleged butter when it was dangerous and unsafe to do so; and

(iv) failing to take any steps to avoid the alleged fall.

Security for costs

On 11 April 1994, the defendants applied that the plaintiff, within 21 days, give security for the defendants` costs in the sum of $40,000 by payment into court and for the plaintiff`s proceedings to be stayed pending provision of such security. The defendants` solicitor filed an affidavit in support of the application on behalf of the defendants and relied on the fact that the plaintiff was ordinarily a resident out of the jurisdiction of the court.

The defendants want a medical specialist in Singapore nominated by them to examine the plaintiff. The cost of the examination will be borne by the insurers of the defendants. The estimated total cost for air passage, accommodation and medical fee is between $5,000 and $10,000. The defendants submitted that $40,000 was a reasonable sum for the estimated costs incurred so far and prayed for an order that pending provision of such security, the plaintiff`s action be stayed.

Initially, the only basis for the application for security for costs was because the plaintiff was ordinarily resident out of jurisdiction. It took on a different aspect later.

Cabin crew voyage report

The extract of the cabin crew voyage report for flight SQ221, Singapore to Sydney, on 20 February 1992 reads:

1 Thirty minutes prior to arrival into Sydney, Mr A Revai who was seated at 67G, had a fall and fainted on the cabin floor.

2 Apparently the passenger stepped on a butter pad and slipped, causing his head to hit the seat arm rest.

3 Mr Revai was then given oxygen for recovery and claimed he suffered pain in his back and on his head.

4 On arrival in Sydney, the passenger required medical attention.

Appeal

Counsel for the plaintiff argued that the defendants are liable for the plaintiff`s injuries. The defendants have not denied that the plaintiff had fallen during the flight. The injuries sustained are substantiated by medical reports.

The plaintiff argued that the application for security for costs in the sum of $40,000 was oppressive and was bound to stifle the plaintiff`s claim. The exorbitant sum was arbitrarily calculated and made the plaintiff`s attempts to negotiate a settlement unsuccessful. Documents were not being made available to support the estimated figure of $5,000 to $10,000 for medical costs. The medical examination and subsequent reports by a medical specialist in Singapore would only be relevant in ascertaining the quantum of damages to be awarded to the plaintiff, and not to determine the question of liability. The plaintiff was prepared to make himself available for medical examination in Singapore, but the security asked for was oppressive and the plaintiff would not be able to proceed with this claim.

The defendants` solicitor, who filed the affidavit, deposed that the defendants would show at the trial that the plaintiff never had a fall in the aircraft...