Fong Khim Ling (administrator of the estate of Fong Ching Pau Lloyd, deceased) v Tan Teck Ann

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 14 May 2013
• Neutral Citation: [2013] SGHC 104
• Court: High Court (Singapore)
• Docket Number: District Court Suit No 1545 of 2010 (Registrar’s Appeal Subordinate Courts No 185 of 2012)
• Published date: 22 May 2013
• Year: 2013
• Hearing Date: 30 January 2013,01 March 2013
• Plaintiff Counsel: Raphael Louis (Teo Keng Siang & Partners)
• Defendant Counsel: Patrick Yeo and Lim Hui Ying (KhattarWong LLP)
• Subject Matter: Damages,assessment,loss of dependency
• Citation: [2013] SGHC 104

Judith Prakash J:

This was an appeal against the decision of the learned District Judge in District Court Suit No 1545 of 2010 setting aside an award of damages for loss of dependency and replacing it with one of lower value. I heard the appeal on 30 January 2013 and dismissed it on 1 March 2013 with costs of the appeal to the respondent. The appellant has filed a further appeal. These are the grounds for my decision.

The appellant, Fong Khim Ling, is the administrator of the estate of Fong Ching Pau, Lloyd, his youngest son, who was killed on 10 December 2008 in a traffic accident involving the deceased’s motorcycle and a bus driven by Tan Teck Ann, the respondent. By consent, on 1 November 2010, the appellant obtained interlocutory judgment for damages to be assessed. Liability was agreed in the ratio 95:5 in favour of the appellant.

On 31 August 2011, the parties signed a memorandum pursuant to s 23 of the Subordinate Courts Act (Cap 321, 2007 Rev Ed) giving the District Court jurisdiction to hear the case notwithstanding that the amount claimed exceeded the District Court limit. The assessment of damages hearing took place on 18 November 2011 and 20-21 February 2012 before District Judge Constance Tay sitting as a Deputy Registrar. The appellant claimed $354,756.48 for the parents’ loss of dependency plus $25,166.85 for special damages, principally bereavement and funeral expenses. The defendant disputed only the claim for dependency. He said that a fair and reasonable amount was $147,600.

On 11 May 2012, the Deputy Registrar awarded the Appellant total damages of $248,260.51 plus interest with costs of the hearing fixed at $25,000. The award for damages was as follows:

Damages for loss of dependency: Multiplicand of $1,640 per month or $820 per parent; Multiplier of 9 years for the father and 15 years for the mother; Sub-total: $236,160

Undisputed amounts: Bereavement: $10,000 Funeral Expenses: $11,894.50 Grant of Letters of Administration: $3,160 Autopsy Report: $112.35 Sub-total: $25,166.85 Total (100%): $261,326.85 Total (95%): $248,260.51

The Deputy Registrar found that based on the figures for wages of a manager found in the Ministry of Manpower’s “Report on Wages in Singapore 2010” (accessed 15 April 2013) (“the MOMRW”) the deceased would have earned an average of $4,670 a month over his working life and that he would have given his parents 35% of that sum, which was $1,640 or $820 to each parent. The father was awarded a multiplier of nine years and the mother 15 years so that the award worked out to be $88,560 for the father and $147,600 for the mother on a 100% basis.

The parties filed cross appeals to a District Judge in chambers. The appellant wanted the award for dependency as well as the costs order increased. The respondent appealed for a reduction in the award for dependency. On 17 October 2012, District Judge Leslie Chew allowed the respondent’s appeal. His assessment (see Fong Khim Ling, the Administrator of the Estate of Fong Ching Pau, Lloyd (Feng Qingbao), deceased v Tan Teck Ann [2012] SGDC 429) differed from that of the Deputy Registrar in three main ways: The District Judge disagreed with the Deputy Registrar’s assumption that the deceased on graduation would have become a manager and earned a manager’s salary. He said that the Graduate Employment Survey (“GES”) was better evidence of the potential income of the deceased. Because there was concrete evidence that the deceased had obtained a place to read business management at the Singapore Management University, the District Judge held that it was more reasonable to use the starting pay of graduates from such a course as the basis for calculating the deceased’s future income. From the GES the District Judge found this starting pay to be $3,200 a month. He then deducted a total of $2,112 for savings, estimated expenses and CPF to arrive at a multiplicand of $1,088 or $544 for each parent. The District Judge also adjusted the multipliers awarded as follows. The father was given 10.05 years, being the expected term of life from the time the deceased would have graduated from university of 15 years discounted by 33% to account for the accelerated payment. The mother’s award was in two tranches. For the first period of six years, the mother would have still been working and therefore her multiplicand was cut to $200 a month. The multiplicand was restored to $544 for the next period of 19 years covering her expected term of life post-retirement. The total multiplier of 25 years was likewise discounted by 33% for accelerated payment for a final figure of 16.75 years, comprising 4.02 years for the first period and 12.73 years for the second.

On these bases the District Judge assessed the total award for loss of dependency at $158,355 calculated on a 100% basis (or about 33% less than the amount awarded by the Deputy Registrar), comprising in round figures $65,606 for the father and $92,749 for the mother. He also affirmed the costs order made by the Deputy Registrar.

Dissatisfied with the District Judge’s judgment, the appellant appealed to the High Court on 29 October 2012 for an increase in the award for loss of dependency and repeated his claim for $354,756.48 on a 100% basis. He again appealed against the costs order that had been made by the Deputy Registrar and affirmed by the District Judge on the ground that it was too low based on recent awards in similar claims for loss of dependency.

Loss of dependency

I deal first with the appeal on the dependency claim. It is settled law that parents may claim damages for loss of dependency from the death of their child even “where there was rarely any actual dependency, so long as there was some basis of fact from which the inference could be drawn that there was a reasonable expectation of pecuniary benefits to the parent, and therefore of prospective loss from the death”: Ng Siew Choo v Tan Kian Choon [1990] 1 SLR(R) 235 (“Ng Siew Choo”) at [15]. In Hanson Ingrid Christina v Tan Puey Tze [2008] 1 SLR(R) 409, I said at [26] that:

The final aim of any court in calculating loss of dependency is to make a direct assessment of the value of the reasonable expectation of pecuniary benefit: Gul Chandiram Mahtani v Chain Singh [1999] 1 SLR(R) 154. This may be done in two ways: (a) the court may simply add together the value of the benefits received by the dependents from the deceased (“traditional method”); or (b) the court may deduct a percentage from the deceased’s net salary consisting of his or her exclusively personal expenditure (“percentage deduction method”).

Where the child has yet to enter the workforce the traditional method is inapplicable so the percentage deduction method should be used. This exercise is necessarily speculative. However the court should not be too cautious but must do its best with the evidence available. In Man Mohan Singh v Zurich Insurance (Singapore) Pte Ltd (now known as QBE Insurance (Singapore) Pte Ltd) and another and another appeal [2008] 3 SLR(R) 735 (“Man Mohan Singh (CA)”) the Court of Appeal noted at [17] that:

When young persons meet with untimely deaths in accidents, any assessment of loss of dependency entails, by its very nature, a measure of estimation. However, this is not a valid reason for applying, in all cases, conservative estimates that would invariably put the defendants in a more advantageous position than the grief-stricken loved ones and future dependants of the victims.

What the court should not do is to have unthinking regard to benchmarks or guidelines supposedly established by the precedents. Each case turns on its own facts. Indeed, the Court of Appeal in Man Mohan Singh (CA) cautioned at [30] that:

We should emphasise that the very unfortunate events that gave rise to the present appeals presented a factual matrix that is uncommon (arguably, even unique). As a result, the considerations which we have taken into account in deciding on the appropriate sums to award the appellants for loss of dependency – including the appellants’ sudden loss of both of their sons in the same accident and the concomitant loss of all prospects of financial support from either of their two children, as well as the highly unlikely prospect of the appellants having another child in the future – are specific to these appeals, and the sums which we have ultimately decided on cannot be regarded as setting new benchmarks for future cases. Indeed, it is clear that, in this particular area of the law, no one decision can, in any event, be generally regarded as setting firm guidelines or benchmarks as every case turns on its facts. (emphasis added)

I agreed with this approach and adopted it in the following analysis.

Multiplicand Prospective earnings

The appellant said that there was sufficient evidence for me to infer that the deceased would have become a manager or at the very least earned an income equivalent to that of a manager. The deceased, who was 21 years old when he died, had distinguished himself in his diploma studies and during National Service as a medic. At Ngee Ann Polytechnic he had won a prize for outstanding performance in the subject of retail management. He had done well enough to obtain a place in Singapore Management University to read business management. He had even been shortlisted for a scholarship offered by the university but had passed away before the first interview. The appellant admitted that there was no concrete evidence of the precise career path of the deceased but given his degree course it was reasonable to assume that he would have become a manager or taken on some other job with an equivalent salary.

The appellant said that the correct basis for assessing his prospective earnings for the purpose of deriving a multiplicand was therefore the statistics for managers’ salaries listed in the MOMRW instead of the GES which listed...