Chia Kim Huay (litigation representative of the estate of Chua Chye Hee, deceased) v Saw Shu Mawa Min Min and another

• Court: High Court (Singapore)
• Judge: Chan Seng Onn J
• Judgment Date: 27 August 2012
• Neutral Citation: [2012] SGHC 172
• Citation: [2012] SGHC 172
• Hearing Date: 26 June 2012,26 March 2012,30 April 2012
• Published date: 29 August 2012
• Docket Number: Suit No 704 of 2010/V (Summons No 5809 of 2011/Z and Summons No 135 of 2012/Q)
• Plaintiff Counsel: Paul Yap Tai San (Vision Law LLC)
• Defendant Counsel: Niru Pillai (Global Law Alliance LLC)
• Subject Matter: Civil procedure,offer to settle,service,Contract,formation,acceptance,offer,termination

Chan Seng Onn J: Introduction

The purpose of the offer to settle mechanism prescribed under Order 22A of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), which is derived from rule 49 of the Rules of Civil Procedure, Ontario RRO 1990, Reg 194, is to “encourage termination of litigation by the agreement of the parties — more speedily and less expensively than by judgment of the court at the end of the trial”: per Morden ACJO in Data General (Canada) Ltd v Molnar Systems Group (1991) 85 DLR (4th) 392 at 398. Ironically, it was the construction of an offer to settle under Order 22A that lay at the heart of the dispute in the present matter.

This matter raises the interesting question of whether and, if so, to what extent, do ordinary contractual principles of offer and acceptance apply to the statutory regime of offers to settle under Order 22A. The theoretical answer to the question must be that ordinary contractual principles apply to the extent that they are not inconsistent with what the Rules of Court expressly provide. However, as will be seen in the present case, the application of theory to practice is not as straightforward as it seems.

The facts Background

On 15 April 2009, Chua Chye Hee (“the Plaintiff”) was involved in a motor accident with Saw Shu Mawa Min Min (“the 1st Defendant”). As a result of the accident, the Plaintiff was rendered tetraplegic. At the material time of the accident, the First Defendant was an employee of GEA Westfelia Separator (SEA) Pte Ltd (“the 2nd Defendant”).

On 15 September 2010, the Plaintiff commenced Suit No 704 of 2010 against both the 1st and 2nd Defendants, with liability and damages to be determined in two separate tranches. On 10 February 2011, interlocutory judgment on the issue of liability was entered by consent against the 1st and 2nd Defendants for 100%, with the Plaintiff’s damages to be assessed and with interest and costs reserved.

After determining the issue of liability, the 2nd Defendant’s insurer, Allianz Global Corporate and Specialty AG, Singapore Branch stepped in to defend the suit on behalf of the 1st and 2nd Defendants. For convenience, I shall refer to the insurer as “the Defendant”, since it was the party who made the relevant offer to settle to the Plaintiff in this suit.

The Defendant’s first offer to settle

On 9 March 2011, the Defendant made an offer to settle under Order 22A to the Plaintiff at $352,316.08, representing the estimated loss of the Plaintiff’s earnings calculated based on a 3 year multiplier.

The Plaintiff’s first offer to settle

On 21 March 2011, the Plaintiff made an offer to settle under Order 22A to the Defendant at the sum of $594,954.60, representing the estimated loss of his earnings calculated based on a higher multiplier of 5.75 years. The Plaintiff also gave the Defendant full access to his medical records. On 3 May 2011, the Defendant’s medical expert conducted an independent examination of the Plaintiff.

The Defendant’s second offer to settle

On 17 June 2011, based on the medical examination and their first offer to settle, the Defendant made a second offer to settle under Order 22A to the Plaintiff at $435,000.00. The Defendant wrote a letter to the Plaintiff in Form 33, stating:

OFFER TO SETTLE

The Defendants offer to settle the proceedings under Order 22A by paying the Plaintiff the following:

1. The sum of S$435,000.00 as damages and interests. 2. Costs of the action and reasonable disbursements to be agreed or otherwise taxed.

Dated this 17th day of June 2011

[Signed]

The figure of $435,000.00 is an intermediate figure between the Defendant’s first offer to settle at $352,316.08; and the Plaintiff’s first offer to settle at $594,954.60. Attached to this second offer to settle is another letter which set out the following table:

Item	Plaintiff’s quantification of 2.9.10	Plaintiff’s quantification of 21.3.11	Our clients’ quantification
Pain and suffering	S$280,000.00	S$225,000.00	S$180,000.00
Future medical expenses	S$30,000.00	S$30,000.00	S$30,000.00
Future employment of maid	S$48,960.00 ($510 X 12 mths X 8 yrs)	S$48,300.00 ($700 X 12 mths X 5.75 yrs)	S$35,190.00 ($510 X 12 mths X 3 yrs)
Future costs of diapers/pads	S$20,263.67 ($211.08 X 12 mths X 8 yrs)	S$14,564.52 ($211.08 X 12 mths X 5.75 yrs)	S$14,564.52 ($211.08 X 12 mths X 5.75 yrs)
Costs of future additional utility	S$13,498.56 ($140.61 X 12 mths X 8 yrs)	S$9,702.09 ($140.61 X 12 mths X 5.75 yrs)	S$9,702.09 ($140.61 X 12 mths X 5.75 yrs)
Costs of future medical equipment	S$15,000.00	S$48,300.00 ($700 X 12 mths X 5.75 yrs)	S$15,000.00
Future transport expenses	S$5,000.00	S$12,000.00	S$5,000.00
Loss of future earnings	S$188,488.00 ($23,561 X 8 yrs)	S$135,475.75 ($23,561 X 5.75 yrs)	S$70,683.00 ($23,561 X 3 yrs)
Medical expenses	S$22,741.82	S$22,741.82	S$22,741.82
Transport expenses	S$3,000.00	S$3,000.00	S$3,000.00
Costs of employing maid	S$7,650.00	S$7,650.00	S$7,650.00
Cost of diapers/pads	S$2,533.00	S$2,533.00	S$2,533.00
Additional utility expenses	S$1,687.32	S$1,687.32	S$1,687.32
Loss of earnings	Not stated	S$34,000.00 (17 mths X $2,000)	S$33,505.58 (17 mths X $1,970.92)
Cost of repairs	Reserved	Reserved	–
Loss of use	Reserved	Reserved	–

The dispute in the present case is whether or not this second offer to settle from the Defendant dated 17 June 2011 (“the Defendant’s second offer to settle”) had been validly accepted by the Plaintiff.

The Plaintiff’s second offer to settle

On 23 August 2011, the Plaintiff made a second offer to settle to the Defendant at $600,000, inclusive of all interim payments. However, the Defendant did not accept this offer to settle and nothing in this case turns on this second offer to settle made by the Plaintiff.

In summary, the Plaintiff and the Defendant each made two offers to settle pursuant to Order 22A. However, as will be seen, this case turns solely upon whether the Defendant’s second offer to settle was validly accepted.

The Plaintiff’s 1st and 2nd Acceptances

On 27 August 2011, which was a Saturday, the Plaintiff’s counsel accepted the Defendant’s second offer to settle via two modes: by sending a facsimile in Form 35 at 6.26 pm to the Defendant’s counsel, (“the 1st Acceptance”); and by personally posting an acceptance in Form 35 to the address of the Defendant’s counsel at about 6.45 pm (“the 2nd Acceptance”).¹

The 1st and 2nd Acceptances were similarly worded:

PLAINTIFF’S ACCEPTANCE OF DEFENDANTS’ OFFER TO SETTLE

The Plaintiff accepts the Defendants’ Offer to Settle dated the 17th day of June 2011 on the terms stated therein. Dated this 27th August 2011

[Signed]

Mr Chua Chean Veen, the Senior Executive Claims of the Defendant, stated in his affidavit that he was advised by his counsel that: the 1st Acceptance was received by facsimile on Monday, 29 August 2011; and the 2nd Acceptance was received by post on Wednesday, 31 August 2011.²

The parties seemed to dispute the exact timing when the Defendant’s counsel received the 2nd Acceptance. I note that the Plaintiff produced a copy of the 2nd Acceptance with a stamp at the bottom right hand corner which stated:

This document served on us at 2.09 pm on 31/8/11.

[Signed]

GLOBAL LAW ALLIANCE LLC

As the authenticity of this document or the stamp therein was not disputed, I therefore found that the earliest time that Defendant’s counsel had been physically served the 2nd Acceptance was 2.09 pm on 31 August 2011.

Death of the Plaintiff

At 11.06 am on 29 August 2011, the Plaintiff passed away. Although the Plaintiff’s counsel had posted the 2nd Acceptance two days prior to the Plaintiff’s death, the 2nd Acceptance was however received by the Defendant’s counsel two days after the Plaintiff’s death.

The 3rd Acceptance

After the Plaintiff passed away, both the Plaintiff’s and the Defendant’s counsel wrote to each other disputing whether or not the Plaintiff had validly accepted the Defendant’s second offer to settle via either the 1st Acceptance or the 2nd Acceptance. In the meantime, the Defendant’s counsel did not withdraw the Defendant’s second offer to settle.

On 8 December 2011, on the instructions of Chia Kim Huay, the litigation representative of the estate of the Plaintiff (hereinafter also referred to as the “Plaintiff” where the context applies), the Plaintiff’s counsel served another acceptance in Form 35 (“the 3rd Acceptance”) on the Defendant’s counsel accepting the Defendant’s second offer to settle, which the Defendant’s counsel took no steps to withdraw despite knowing full well that the Plaintiff had already passed away more than three months ago. The service and receipt of the 3rd Acceptance was not disputed. The Defendant’s second offer to settle was finally withdrawn by Defendant’s counsel on 13 January 2012 using Form 34.

The Plaintiff’s Summons No 5809 of 2011

On 23 December 2011, the Plaintiff filed Summons No 5809 of 2011 praying for judgment to be entered for the Plaintiff on the terms of the Defendant’s second offer to settle, which the Plaintiff contended had been validly accepted. In response, the Defendant filed Summons No 135 of 2012 on 10 January 2012 seeking the following declaratory relief: a declaration that the Defendant’s second offer to settle was not validly accepted by the Plaintiff before he passed away on 29 August...