Ang Kim Heok (administratrix of the estate of Toh Hno Soi, deceased) v Ong Heng Guan (AXA Insurance Singapore Pte Ltd, intervener)

• Jurisdiction: Singapore
• Judge: Lim Wen Juin
• Judgment Date: 02 February 2018
• Neutral Citation: [2018] SGDC 31
• Court: District Court (Singapore)
• Docket Number: District Court Assessment of Damages No 383 of 2016 in District Court Suit No 733 of 2016
• Published date: 21 April 2018
• Year: 2018
• Hearing Date: 02 February 2018,01 December 2017
• Plaintiff Counsel: Paul Yap Tai San (Vision Law LLC)
• Defendant Counsel: The defendant unrepresented and absent,Lim Hui Ying and Kenneth Tan (KhattarWong LLP)
• Subject Matter: Damages,Death,Funeral expenses,Cost of publishing obituary,Loss of dependency
• Citation: [2018] SGDC 31

Deputy Registrar Lim Wen Juin:

This is an assessment of damages in an action arising out of a fatal motor accident. The plaintiff is the wife of the deceased, who at the age of 59 passed away at the scene of the accident after his lorry was hit from behind by a car driven by the defendant in the early morning of 23 December 2014. The plaintiff brings this action under s 20 of the Civil Law Act (Cap 43, 1999 Rev Ed) (“the Act”) in her capacity as administrator of the estate of the deceased. She is the only dependant of the deceased for whose benefit the action is brought.

The defendant did not enter an appearance in this action and interlocutory judgment was entered against him with damages to be assessed. He has been absent throughout these proceedings. The insurance policy over the defendant’s car in respect of third-party risks was issued by the intervener. It has fallen to the intervener to challenge the plaintiff’s claim in this action. The intervener’s interest in doing so arises from its obligation under the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) to satisfy any judgment that the plaintiff may obtain against the defendant even though the intervener’s position is that it is entitled to avoid liability under the policy on the basis that the defendant was driving under the influence of drugs at the time of the accident.

The intervener agrees that the plaintiff should receive $15,000 as damages for bereavement pursuant to s 21(4) of the Act, $18,683.50 for funeral and testamentary expenses, and $3,700 for the cost of obtaining letters of administration. But there is no agreement on two issues. The first is whether the cost of publishing obituaries for the deceased in local newspapers should be considered part of the funeral expenses that the plaintiff may recover from the defendant. The second is the quantification of the loss of dependency suffered by the plaintiff as a result of the death of the deceased. The second issue is in monetary terms by far the more significant one, but the applicable legal principles are uncontroversial and it is merely a matter of discerning the appropriate multiplier and multiplicand from the available evidence. In contrast, the first issue appears – surprising as this may seem – to be a novel one.

The claim for the cost of publishing obituaries

Section 22(4) of the Act provides that damages may be awarded in respect of “funeral expenses” that the dependants of the deceased have incurred. The plaintiff says that “funeral expenses” includes the cost of publishing obituaries but the intervener seems to say that it does not. Both parties did not bring to my attention any authority on this point. In the absence of authority to the contrary, I consider that the phrase “funeral expenses” in s 22(4) of the Act is in principle wide enough to include the cost of publishing obituaries. As the plaintiff points out, an obituary notifies the world that the deceased has passed on and that anyone who wishes to may gather at a certain time and place for the funeral. In my understanding the primary purpose of a funeral is to afford the living an opportunity to remember the deceased and commiserate with one another. The presence of the living imparts importance and meaning to the occasion and is thus essential to it. It is generally reasonable to suppose that the publication of an obituary is meant to and does contribute to securing the attendance of the living at the funeral, and to that extent I think that it ordinarily constitutes a necessary step in the organisation of any funeral.

For this reason I consider that the usual starting point is that the cost of publishing an obituary is properly a funeral expense in respect of which damages may be awarded under s 22(4) of the Act. But it remains a plaintiff’s burden to justify the full extent of any claim for the cost of publishing obituaries, and that may entail explaining, for instance, why there was a need for multiple obituaries or why an obituary of a particular size and prominence was required.

In this case the plaintiff claims a sum of $7,405.47 that appears from invoices issued by Singapore Press Holdings Limited to be the total cost of publishing three obituaries. One obituary appeared in a publication abbreviated in the invoices as “WB” on 24 December 2014, another appeared in a publication abbreviated as “ZB” on the same day, and the third appeared in “ZB” on 28 December 2014. The cost of the publishing these obituaries was $2,166.75, $4,622.40 and $616.32 respectively. The documentary material before me suggests that all three obituaries were in Mandarin and identical in content. No evidence was given explaining why the funeral arrangements necessitated publishing the same obituary thrice. In these circumstances I do not think I can award the plaintiff the full cost of publishing three obituaries.

The intervener submits that the plaintiff’s claim in this regard should be entirely disallowed for two reasons that would operate even if in principle some part of the cost of publishing obituaries should be considered a funeral expense. It argues, first, that the cost of publishing obituaries was not pleaded in the statement of claim as a component of special damages. It then argues that having agreed to the sum of $18,683.50 for funeral and testamentary expenses it believed that parties had reached a compromise in respect of those expenses, hence the plaintiff should not be permitted now to renege on that compromise by putting in the cost of publishing obituaries as an additional funeral expense.

I do not accept either of the intervener’s two objections. Although the statement of claim does not refer specifically to the cost of publishing obituaries, the aggregate sum claimed as special damages in relation to funeral and testamentary expenses was $26,678.07. That figure is large enough to encompass both the agreed funeral expenses at $18,683.50 and the plaintiff’s claim of $7,405.47 for publishing the obituaries. Hence I do not think that the plaintiff’s case was so insufficiently pleaded that she should be precluded from recovering the cost of publishing obituaries if she would otherwise be entitled to do so. And I see no basis for the intervener’s assertion that a compromise had been reached in relation to the funeral expenses. In the parties’ joint opening statement the plaintiff clearly indicated that her claim for funeral expenses comprised $18,683.50 plus $7,405.47 being the cost of publishing obituaries, and the intervener’s response was to express agreement with the former sum but object to the latter on the ground that it was unsupported by documentary proof. The inescapable inference that emerges is that the intervener could not have believed that the plaintiff had relinquished or was relinquishing her claim for the cost of publishing obituaries in exchange for its agreement to the sum of $18,683.50 as funeral expenses.

Since the intervener did not suggest that every one of the obituaries was gratuitous or unconnected to the organisation of the funeral for the deceased, I consider that the plaintiff is entitled to recover part of the cost of publishing the obituaries. Given that the parties took all-or-nothing positions there were no submissions on what an appropriate middle ground might be, but I think that a sensible approach is to allow the plaintiff to recover the notional cost of one obituary obtained by calculating the average cost of the two obituaries that were published on 24 December 2014. Adding $2,166.75 and $4,622.40 gives $6,789.15 and dividing by two yields $3,394.58. Rounding this up, I find that the plaintiff is entitled to recover $3,400 in respect of the publication of obituaries. Adding this to the $18,683.50 in agreed funeral expenses, I assess total damages for funeral expenses at $22,083.50.

The claim for loss of dependency

In awarding damages for loss of dependency the aim is to restore to the plaintiff the pecuniary benefit she could reasonably expect to have received from the deceased had his life not been cut short by the defendant’s negligence. There are two methods for assessing that pecuniary benefit, as Judith Prakash J explained in Hanson Ingrid Christina and others v Tan Puey Tze and another appeal [2008] 1 SLR(R) 409 at [26]. One is to add together the value of the benefits received by the dependant from the deceased. The other is to start from the net salary of the deceased and to deduct from that a...