Balanalagirisamy Gowri Rajeswari and another (administrators of the estate of Radhakrishnan Hari Babu, deceased) v Wong Si Wah

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 15 October 2008
• Neutral Citation: [2008] SGHC 174
• Docket Number: Suit No 448 of 2006 (Registrar's Appeal Nos 113 and 116 of 2008)
• Date: 15 October 2008
• Year: 2008
• Published date: 20 October 2008
• Plaintiff Counsel: Gurdeep Singh Sekhon (K S Chia Gurdeep & Param)
• Citation: [2008] SGHC 174
• Defendant Counsel: Pateloo E Ashokan (KhattarWong)
• Court: High Court (Singapore)
• Subject Matter: Central Provident Fund contributions,Quantum,Factors involved in determination of multiplier,Factors involved in determination of multiplicand,Deduction made for deceased's own use,Measure of damages,Overtime pay,Assessment,Use of different multiplicands,Allowances,Vicissitudes of life,Lump sum payment,Determination of multiplier,Net income per annum,Computation,Considerations and factors,Damages,Multiplicand,Death,Basic salary,Income tax contributions,Dependency claim,Bonuses,Compensation and damages

15 October 2008

Andrew Ang J:

1 The deceased in the present case (“the Deceased”) passed away on 30 November 2005 after having been severely injured in an accident. He had been struck by a car driven by the defendant when crossing a road at a pedestrian crossing. The first plaintiff (the widow) and the second plaintiff (the father of the Deceased) were granted Letters of Administration on 3 July 2006 and they were named the administratrix and co-administrator, respectively, of the Deceased’s estate.

2 The plaintiffs subsequently sued the defendant for damages arising out of the death. The trial on the issue of liability was heard from 16 to 18 April 2007. Interlocutory judgment was delivered by Kan Ting Chiu J on 20 July 2007. In his judgment, by reason of the Deceased’s contributory negligence, Kan J found the defendant to be liable to the plaintiffs for one-third of the damages.

3 The assessment of damages hearing took place before an assistant registrar (“AR”) over a span of three days. The AR delivered her judgment on 18 March 2008. She assessed the damages (at 100%) as follows:

(a) Pain and suffering	$ 5,000.00
(b) Special damages (agreed)	$ 30,747.15
(c) Special damages (disputed)	$ 1,768.46
(d) Loss of dependency	$375,000.00

4 The plaintiffs and the defendant appealed against the decision of the AR. The sole issue on appeal was the quantum of the award for loss of dependency. The AR’s award for loss of dependency was based on a multiplier of 15 years and a multiplicand of $25,000. This resulted in an award of $125,000 (at 33%). At the end of the hearing, I ordered that the appeal be allowed and the award for dependency be increased to $238,000 (at 33%). While drafting my Grounds of Decision, I came to the conclusion that $231,000 is the appropriate amount (at 33%) to be awarded for dependency for the reasons which follow.

Background facts

5 The Deceased was an Indian national who was 35 years old at the time of his death. He was the sole breadwinner for his family. His dependants consisted of his widow (who was 31 years old at the time of his death) and his son (who was two years old at the time of his death).

6 The Deceased obtained a first-class honours degree in mechanical engineering from Periyar University in India. In addition, he had obtained qualifications in boiler operations and was also qualified in programming and operations. His academic record showed a consistently high level of achievement. Since his arrival in Singapore, he had been in the employ of only one company – Eco Special Waste Management Pte Ltd (“Eco”) – as a co-generation plant engineer. He worked with Eco from 1 November 2004 until the time of his death.

The multiplier

7 The AR, as mentioned earlier (see [4] above), was of the view that the multiplier should be 15 years. Before me, the defendant accepted that this was correct vis-à-vis the widow but (apparently) not the son (ie, the Deceased’s second dependant).

8 In his Written Submissions, counsel for the defendant had allowed that the son’s dependency would be until he attained the age of 23 to 25 years and that, in arriving at the multiplier, this period ought to be subject to reduction. However, for the sake of simplicity he submitted that a multiplier of 14 years for both dependants would be reasonable. At the hearing, counsel for the defendant decided not to challenge the multiplier of 15 years adopted by the AR. Curiously, he nevertheless submitted before me that the multiplier for the son should be arrived at using the same percentage reduction as for the widow. I therefore took the defendant’s position to be that the agreement to the 15-year multiplier applied only to the widow.

9 On the basis of a period of dependency until the son attained the age of 24 years (the mean of 23 and 25 years), the period of dependency of the son from the time of death of the Deceased would be about 22 years. The remaining working life of the Deceased, had he not suffered the accident and had worked on until 65 years of age, is 30 years. (I rejected the plaintiffs’ view that the retirement age should be taken as 67 years. However, it was not unreasonable to adopt a retirement age of 65 years in view of the Government’s bias in favour of later retirement as a consequence of demographic changes pointing towards an aging population.) On the basis of the agreed multiplier for the widow’s dependency being 15 years, there is implied a discount of 50%. If the same percentage reduction were applied to the son, the multiplier for the son would be 11 years.

10 However, I did not think that the same percentage reduction should apply. It is axiomatic that the longer the period of dependency, the greater would be the percentage reduction. This follows from two factors:

(a) The first would be future contingencies (“the vicissitudes of life”). Where one is looking at a period of dependency of 30 years or more, it is quite understandable that a significant discount has to be applied to factor in the vicissitudes of life with respect to both the Deceased and to the dependants over such a long period. Where, however, the dependency period is shorter (as in the case of the son), it would be unduly pessimistic to apply the same percentage reduction. The longer the period, the greater the uncertainty. Moreover, the risks of death and disease would ordinarily be greater amongst those senior in years.

(b) The second would be the investment value of receiving a lump sum payment in an award. The greater the number of years by which payment of damages is advanced, the greater the potential for investment gains thereon, assuming prudent investment of course. In simple terms, money which is paid 30 years in advance would earn more interest or other gains than a similar amount paid 22 years in advance. It is important, however, not to exaggerate the advantage of receiving a payment in advance. Interest rates for fixed deposits, for one, have been low for many years now, as many of us are only too painfully aware. Although fixed deposits would not be the only way to earn a return, alternative modes of investments carry with them a higher risk of loss of one’s capital. Anecdotal accounts of ill-fated investments in the current economic turmoil bear testament to the truth of this observation.

For the above reasons, I was of the view that instead of a reduction by 50% to arrive at a multiplier of 11 years, I should fix the multiplier at 13 years applying a discount of about 41%.

The multiplicand

11 The plaintiffs submitted that instead of using only one multiplicand for the entire period of the multiplier, the multiplier should be split into three equal periods with a different multiplicand for each period. This submission was based on the assumption that there would only be one multiplier, viz, 15 years. While I was of the opinion that there should be two multipliers, viz, 15 years for the widow and 13 years for the son, I agreed with the plaintiffs that three multiplicands should be used.

12 The use of different multiplicands is not unprecedented. In See Soon Soon v Goh Yong Kwang [1992] 2 SLR 242 (“See Soon Soon”), Chan Sek Keong J split the multiplier of 15 years into one period of five years and one period of 10 years and applied a different multiplicand for each period (at [35]). For the first period of five years, he applied the mean of $3,000 and $6,700, ie, $4,850 (id at [36]). For the second period of five years, he applied the median of $20,000 and $30,000, ie, $15,000 (id at [36]). The multiplicand for the second period was based on evidence of what the deceased, who was a medical officer, would have earned if he was promoted and was able to enhance his earnings from consultancy work (id at [33]–[34]).

13 The approach in See Soon Soon was applied by Judith Prakash JC in the case of Lim Fook Lau v Kepdrill International Incorporated SA [1993] 1 SLR 917. In that case, Prakash JC similarly applied two multiplicands. In doing so, she stated (id at [11]):

See Soon Soon’s case makes clear that because of the guess work involved in estimating the probable earnings of a young deceased for the next 30 years, it is appropriate to split up the agreed multiplier for the assessment of lost years into more than one period.

She then observed that this approach would also be consistent with dicta by Lord Fraser of Tullybelton in Cookson v Knowles [1979] AC 556. His lordship had stated the following (at 575):

The court has to make the best estimates that it can having regard to the deceased’s age and state of health and to his actual earnings immediately before his death, as well as to the prospects of any increases in his earnings due to promotion or other reasons.

14 In the recent case of Ramesh s/o Ayakanno v Chua Gim Hock [2008] SGHC 33, Kan J upheld the decision of the assistant registrar to apply three separate multiplicands over three different periods. In doing so, he stated (at [43]):

There is no reason in principle to restrict the multiplicand to the plaintiff’s earnings at the time of the accident. The evidence was that if he had continued working, his earnings would have increased.

15 Taking into account the circumstances of the present case, I agreed with the plaintiffs’ proposal for three different multiplicands to be applied. In my view, the use of three multiplicands would allow for the factoring in of the Deceased’s prospects of increases in earnings and yield a figure likely to be closer to what he would have earned than if one multiplicand was used. It would not be correct to freeze the multiplicand at the level of the Deceased’s earnings at the time of the accident, as the evidence adduced before the AR indicated clearly that the Deceased was a hardworking and capable worker with prospects of promotion. Mr Ng Kin Hong (“Ng”) (the Senior Plant Manager in Eco) for one, described the Deceased in his affidavit as a “good worker” (affidavit-of-evidence in chief...