Lassiter Ann Masters (suing as the widow and dependant of Lassiter Henry Adolphus, deceased) v To Keng Lam (alias Toh Jeanette) (No 2)

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 10 January 2005
• Neutral Citation: [2005] SGHC 4
• Docket Number: Suit No 870 of 1997 (Registrar's Appeals Nos 600066 and 600067 of 2002)
• Date: 10 January 2005
• Year: 2005
• Published date: 12 February 2014
• Plaintiff Counsel: Michael Hwang SC and Ernest Wee (Michael Hwang) and Siva Murugaiyan (Sant Singh Partnership)
• Citation: [2005] SGHC 4
• Defendant Counsel: Quentin Loh SC, Anthony Wee and Teo Guan Kee (Rajah and Tann)
• Court: High Court (Singapore)
• Subject Matter: Defendant partially liable for fatal accident,Plaintiff appealing against quantum of damages for loss of support,Whether plaintiff entitled to claim for professional fees for post-mortem estate planning,Whether deduction for interest earned on capital applicable to quantum,Damages,Plaintiff's claims for loss of inheritance and professional fees for post-mortem estate planning dismissed in assessment of damages hearing before registrar,Whether multiplicand and multiplier for calculation of quantum of loss of support fair,Defendant appealing against decision of registrar,Plaintiff dependant entitled to damages,Whether plaintiff entitled to claim for loss of support,Plaintiff's claim for loss of support allowed in assessment of damages hearing before registrar,Assessment,Whether claim for loss of inheritance maintainable in dependency claim in Singapore

10 January 2005 Judgment reserved.

Woo Bih Li J:

Introduction

1 On 9 May 1994 at about 6.30am, Henry Adolphus Lassiter (“HAL”) was crossing the junction of Stevens Road/Scotts Road from Draycott Drive when a motor vehicle driven by the defendant, To Keng Lam (alias Jeanette Toh) (“the Driver”), collided with him. As a result, HAL was killed. He was 48 years old then. He left behind his widow, Ann Masters Lassiter (“AML”), who was also 48 years old then and four daughters. On 5 May 1997, AML filed an action in the High Court for her own benefit and the benefit of other dependants of HAL. Consent judgment was subsequently entered against the Driver on the basis of 45% liability, with 55% liability attributed to HAL.

2 AML claimed the following:

(a) Loss of inheritance;

(b) Loss of support;

(c) Professional fees for post-mortem estate planning;

(d) Various other items as special damages; and

(e) Damages for loss of bereavement.

3 The assessment of damages was heard before an assistant registrar (“AR”) between 28 February to 28 June 2002. The claims for loss of inheritance and loss of support were restricted by AML to claims for AML alone, ie excluding the daughters. On 29 June 2002, the AR delivered a written judgment. The AR decided as follows:

(a) The claim for loss of inheritance was dismissed;

(b) The claim for loss of support (which the AR referred to as a claim for loss of dependency) was assessed at US$130,000 per annum x eight years = US$1,040,000;

(c) The claim for professional fees for post-mortem estate planning was dismissed;

(d) Most of the various items claimed as special damages were allowed;

(e) The damages for bereavement were allowed at $10,000.

4 The AR also made an award on costs although counsel for both sides had asked him to defer his decision on costs for the time being.

5 The Driver filed an appeal, being Registrar’s Appeal No 600066 of 2002, against the AR’s decision in respect of the loss of support and on costs. AML also filed an appeal, being Registrar’s Appeal No 600067 of 2002 against the AR’s decision in respect of the following:

(a) Loss of inheritance;

(b) Loss of support;

(c) Professional fees for post-mortem estate planning; and

(d) Damages which were not allowed.

6 Both appeals were heard by me and I now set out my decision and reasons. I would also mention that at the outset, Mr Michael Hwang SC, counsel for AML, said that there was no claim for dependency for the daughters under AML’s appeal.

Loss of inheritance

7 As I mentioned, AML made a claim for loss of inheritance. She was the main beneficiary under HAL’s will. HAL was an entrepreneur who, it was alleged, preferred to put most of the profits he made back into his businesses rather than have a higher earned income. Mr Hwang used the term “loss of inheritance” and “loss of savings” interchangeably and Mr Quentin Loh SC, counsel for the Driver, proceeded along those lines as well. It seems to me that “loss of inheritance” is not necessarily the same as “loss of savings” and I shall elaborate on this later. The claim for loss of inheritance was the largest head of claim. It was also the most contentious both on the law and on the facts. I will deal with the law first.

The law

8 Mr Loh submitted that the claim for loss of inheritance was part of a claim for lost years by an estate and that the estate’s claim for lost years was abolished in Singapore in 1987. That was why AML made the claim for loss of inheritance under a dependency claim. Mr Loh also submitted that a claim for loss of inheritance was not maintainable under a dependency claim.

9 Mr Hwang accepted that an estate’s claim for lost years was abolished in Singapore in 1987. However, he submitted that a claim for loss of inheritance was maintainable under a dependency claim in any event.

10 As HAL died on 9 May 1994, the applicable legislation is the Civil Law Act (Cap 43, 1994 Rev Ed) and not the 1999 Revised Edition. The relevant sections are ss 7, 12 and 14, and I set out below the relevant provisions thereof:

7.—(1) Subject to this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person –

(a) shall not include –

(i) any exemplary damages; and

(ii) any damages for loss of income in respect of any period after that person’s death;

(b) …

(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death except that a sum in respect of funeral expenses may be included.

(3) …

(4) The rights conferred by this section for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by section 12 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under that section as applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

(5) …

12.—(1) If death is caused by any wrongful act, neglect or default which is such as would (if death has not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

(2) Subject to section 13(2), every such action shall be for the benefit of the dependants of the person (referred to in this section and in sections 13 and 14 as the deceased) whose death has been so caused.

…

(8) In this section, “dependant” means –

(a) the wife or husband of the deceased;

(b) any parent, grandparent or great-grandparent of the deceased;

(c) any child, grandchild or great-grandchild of the deceased;

(d) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;

(e) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

14.—(1) In every action brought under section 12, the court may award such damages as are proportioned to the losses resulting from the death to the dependants respectively except that in assessing the damages there shall not be taken into account –

(a) any sum paid or payable on the death of the deceased under any contract of assurance or insurance;

(b) any sum payable as a result of the death under the Central Provident Fund Act; or

(c) any pension or gratuity which has been or will or may be paid as a result of the death.

(2) …

(3) In an action brought under section 12 where there fall to be assessed damages payable to a widow in respect of the death of her husband, there shall not be taken into account the remarriage of the widow or her prospect of remarriage.

(4) If the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those expenses.

11 As can be seen, s 7(2)(a)(ii) excludes an estate’s claim for damages for loss of income in respect of any period after the death of the victim. For completeness, I would add that s 8 abolished the right to damages for loss of expectation of life except for one qualification which is unnecessary for me to mention.

12 It is necessary to go into some detail of the history of the legislation and cases of fatal accidents. I will focus first on the English position as Singapore legislation on fatal accidents has followed English legislation closely most of the time.

13 Under the common law, a personal action did not survive a person’s death. This was considered to be unsatisfactory with the industrial revolution and the use of trains and later, motor vehicles. In England in 1846, Lord Campbell’s Act (the Fatal Accidents Act) was passed to allow claims to be made for the death of the victim for the benefit of the wife, husband, parent and child of the victim. Although there was no reference to dependants, Lord Campbell’s Act was considered to be for the benefit of dependants and not the estate. Since then, there have been various legislation affecting such claims, for example, the Fatal Accidents Act 1864, the Fatal Accidents Act 1959 and the Fatal Accidents Act 1976.

14 In the meantime, the Law Reform (Miscellaneous Provisions) Act 1934 was passed in England. It provided that a cause of action survived a person’s death for the benefit of his estate, subject to some exceptions which are immaterial for present purposes.

15 Prior to 1978, where a person’s death was caused by the negligence of another person, the wrongdoer was liable to compensate the deceased’s estate for loss of expectation of life but not for loss of future earnings. Secondly, the wrongdoer was also liable to compensate the dependants of the deceased for their loss of support which was known as a dependency claim or a loss of dependency. This claim would be derived from but was not equivalent to the deceased’s loss of future earnings. Thirdly, the wrongdoer was liable to compensate any person or the deceased’s estate for any additional disbursements incurred on account of the accident. However, the law on this began to change in 1978.

16 In Pickett v British Rail Engineering Ltd [1979] 1 All ER 774 (“Pickett”), a healthy 53-year-old man could have worked all...