Du Zhao Di (Suing as Committee of the Person and Estate of Jiang Hui Ping) v Lee Chee Yian (Mayban General Assurance, intervener)

• Jurisdiction: Singapore
• Judge: Mohamed Faizal AR
• Judgment Date: 30 May 2007
• Neutral Citation: [2007] SGHC 88
• Published date: 05 June 2007
• Court: High Court (Singapore)
• Plaintiff Counsel: Magdelene Loh (Characterist LLC)
• Defendant Counsel: Defendant / Respondent absent,Rai Mahendran Prasad (Comma & Rai)

30 May 2007

Assistant Registrar Mr Mohamed Faizal:

Introduction

1 The matter that was before me had been in relation to an application for an interim payment of $100,000 that had been taken out by one Ms Du Zhao Di (“the applicant”), under Order 29, Rule 11(1)(c) of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“the Rules”), acting qua Committee of the Person and Estate of her husband, one Mr Jiang Hui Ping (“Jiang”), a 41-year-old Chinese National who had, till he met with an untimely accident on 23 December 2006, been working in Singapore as a construction worker.

2 The relevant parts of O 29 r 11 of the Rules reads as follows:

11. — (1) If…the Court is satisfied —

…

(c) that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are 2 or more defendants, against any one or more of them,

the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely.

(2) No order shall be made under paragraph (1) in an action for personal injuries if it appears to the Court that the defendant is not a person falling within one of the following categories:

(a) a person who is insured in respect of the plaintiff’s claim; or

(b) a person whose means and resources are such as to enable him to make the interim payment.

3 At the conclusion of the proceedings before me, I allowed the application for an interim payment to be made against the defendant. Given that a considerable number of issues in relation to the interpretation of O 29 r 11 of the Rules had been canvassed during the course of the proceedings that took place before me, issues that do not, at first blush, appear to have been determined hitherto in a domestic forum, it would be of some utility to articulate in writing the considerations that I had in making the above order.

4 Nonetheless, before considering the substantive legal issues that arose for consideration in this application, so as to put such ensuing discussion in its appropriate context, it would be useful to preface such analysis with an articulation of the series of events that led to this application. It is therefore to this I first turn.

The facts

5 Given the very nature of the subject matter that it deals with, it should be of little surprise that tort law has, since time immemorial, enjoyed a lore-encrusted reputation for tossing up depressing and distressing accounts of human fragility, pain and suffering. This has invariably meant that arbiters of such matters are often necessarily forced to determine and interpret the applicability of the law against an extremely gloomy backdrop of sad and unfortunate events.

6 The facts that formed the foundation of the application that was before me here, unfortunately, did not represent any exception. That said, the facts were relatively straight-forward and can be gleaned from the police report dated 24 December 2006 (“the police report”) that had been filed by Mr Lee Chee Yian (“the defendant”). According to the police report, the defendant had been travelling in his motor vehicle (“the car”) along Hougang Avenue 3, at or about 2000 hrs on the evening on 23 December 2006, when he realised that he had lost his way. He then decided to stop at a bus stop near Defu Lane to seek assistance. As the bus stop was located on the passenger’s side of the car, the defendant opened the driver’s car door so as to exit the vehicle to approach the persons at the bus stop to seek directions. Unbeknownst to the defendant, however, Jiang was cycling along the said road behind the defendant’s car and collided into the open door of the car, with the impact of the collision causing Jiang to be flung off his bicycle and losing consciousness. An ambulance that arrived some time later conveyed him to Changi General Hospital.

7 According to a letter tendered into evidence that had been written by Dr Charles Seah (“Dr Seah”), a Senior Registrar (Neurosurgeon) in the Department of Surgery at Changi General Hospital, two operations were conducted on Jiang to stabilise his condition. It would be unnecessary to traverse in full, the operations that were conducted on him: suffice it to say that though the operations saved his life, they did little to improve Jiang’s medical condition given the severe brain damage that he suffered as a result of the collision. As such, not only does Jiang remain in a vegetative state, but Dr Seah was of the opinion that even if he recovered, he would be bed-ridden for the rest of his life and would require a permanent care-taker to meet his daily needs. To exacerbate matters, Jiang was also diagnosed with having an unsound mind and would therefore be permanently unable to handle work.

8 Sometime early this year, the applicant obtained the leave of the High Court to be appointed as Jiang’s Committee of Person and Estate. The applicant then commenced an action against the defendant in relation to the accident, qua Committee, claiming damages of some $386,000 (“the substantive action”). In the interest of completeness, I should add that the claim in the substantive action can be conveniently broken down into the following constituents: general damages for injuries (at $180,000), loss of earnings (at $80,000), cost of domestic care ($66,000) and cost of future medical expenses ($60,000).

9 As is common practice in relation to such claims, Mayban General Assurance Berhad (“the insurers”), who, at the time, had a third-party motor-vehicle insurance policy (“the insurance policy”) with the defendant that would indemnify him vis-à-vis any claim by Jiang in relation to injuries sustained as a result of the accident, proceeded to enter an appearance on behalf of the defendant (in accordance with the terms of the insurance policy) so as to conduct his defence in the substantive action. In the interim, motivated no doubt by the pressing need for funds to continue Jiang’s treatment (he was lying comatose in the hospital) and to cover the family’s living expenses that would have to be expanded before the conclusion of the substantive action, the applicant filed this application to seek an interim payment of $100,000 to tide the family over and to engage domestic care on his behalf.

10 That however, does not constitute the end of this story: symbolic of the characteristic mid-story twist that is invariably omnipresent in any tragedy, when I first heard the application on 30 April 2007, I was informed by the insurers that they had repudiated liability on the insurance policy three days earlier (i.e. 27 April 2007) due to the defendant’s non-cooperation in the preparation to the defence of this application and the substantive action. According to counsel for the insurers, Mr Mahendran Prasad Rai (“Mr Rai”), they had been forced to take such a draconian step as they had been unable to competently prepare for his defence as he had been completely uncontactable for an extended period of time. Though he was not able to confirm this, Mr Rai informed me that whatever precious little he knew of the defendant’s whereabouts was that he appeared to be overseas on work-related matters.

11 In light of the above events, Mr Rai took the view that he was no longer in a position to act on behalf of the defendant. I was in full agreement with Mr Rai – he had, after all, been instructed by the insurers in the matter. Upon the insurers’ repudiation of the insurance contract (though I stress I make no determinative finding as to the efficacy of such repudiation in law), the insurers, and by extension, Mr Rai, had no duty, nor indeed legal right in the absence of a retainer with the defendant, to represent the defendant (and/or to negotiate any settlement) in either the application before me or the substantive matter: see United Oriental Assurance Sdn Bhd v Ng King See [1987] 2 MLJ 264 at 265 – 266.

12 In this connection, while counsel for the applicant, Ms Magdelene Loh (“Ms Loh”), accepted that the insurer could no longer act for the defendant, she was of the view that the matter should not be adjourned at that juncture given that she had complied with all the procedural requirements in her client’s application for an interim payment in that the application had been served on the counsel on record for the defendant at the time of such service (namely Mr Rai). While I fully appreciated her motivations in canvassing such an argument (in the light of her client’s need for an expeditious conclusion to this application), I was nonetheless not prepared to continue hearing the matter at that stage as I harboured considerable doubts as to the propriety of continuing with the hearing there and then, in the absence of giving the defendant an opportunity to be heard. So as to ensure that any further actions that I took in relation to the matter would not be perfunctory, I adjourned the matter so as to facilitate for the effecting of the service of the summons on the defendant in his personal capacity. Numerous adjournments followed, before the matter was eventually heard again by me on 22 May 2007.

13 When the application came before me again on 22 May 2007, the defendant was once again absent, though Ms Loh informed me that service of the necessary documents had, by then, been effected on him and that all the necessary procedural requirements had been adhered to. Notwithstanding his absence, however, the application on 22 May 2007 did not proceed unopposed: instead, before the commencement of the hearing on 22 May 2007, the insurers applied, via another summons, to, inter alia, be added as interveners to the action under O 15 r 6(2) of the...