Lassiter Ann Masters v To Keng Lam (alias Toh Jeanette)

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 20 August 2003
• Neutral Citation: [2003] SGHC 176
• Date: 20 August 2003
• Subject Matter: Whether appeal operates as rehearing,Whether judge has discretion to allow admission of further evidence on appeal,Registrar's Appeals from assessment of damages,Civil Procedure,Appeals,Whether Ladd v Marshall principles apply to Registrar's Appeals relating to assessment of damages
• Docket Number: Suit No 870 of 1997
• Published date: 22 December 2003
• Defendant Counsel: Quentin Loh SC and Anthony Wee (Rajah and Tann)
• Court: High Court (Singapore)
• Plaintiff Counsel: Michael Hwang SC, Ernest Wee (Michael Hwang) and Siva Murugaiyan (Sant Singh Partnership)

The background

1 Ann Masters Lassiter (the plaintiff) is the widow of an American, Henry Adolphus Lassiter (the deceased), who was knocked down at about 6.30am on 9 May 1994, by a car driven by Jeanette Toh (the defendant), resulting in his untimely death at the age of 48.

2 The plaintiff commenced these proceedings in May 1997 on her own behalf and on behalf of the deceased’s dependants (three daughters), pursuant to s 12 of the Civil Law Act (Cap 43). By consent, interlocutory judgment was entered against the defendant on 19 May 1998 with 45% and 55% liability apportioned in favour of the defendant and the deceased respectively.

3 The plaintiff made the following heads of claim for damages pursuant to her notice of assessment filed on 11 December 2001:

(a) loss of inheritance;

(b) loss of dependency; and

(c) cost of administering the estate of the deceased, including the cost of resisting the imposition of tax by the Internal Revenue Service (“IRS”) of the United States of America (“the US”).

4 Assessment of damages for the plaintiff took place before the learned Assistant Registrar Kwek Mean Luck (“Asst Registrar Kwek”) in two tranches, the first between 27 February and 5 March and the second from 20 to 28 June 2002. On 29 June 2002, Asst Registrar Kwek delivered his written judgment wherein he awarded the plaintiff the following amounts:

(a) Non-recurring pre-trial expenses:

(i) bereavement USD10,000.00

(ii) transport of body USD10,918.00

(iii) funeral expenses USD12,014.00

(b) Non-recurring pre-trial loss of support:

(i) Cindy Lassiter’s wedding USD27,803.93

(ii) Christy Lassiter’s education USD77,457.75

(iii) Cheryl Lassiter’s education USD175,572.30

(iv) Automobiles for

1. Christy Lassiter USD22,000.00

2. Cheryl Lassiter USD25,000.00

Subtotal USD327,833.98

(c) Pre-trial loss of support:

(i) multplicand USD130,000.00

(ii) muliplier 8 years

Subtotal USD1,040,000.00

(d) Post-trial non-recurring loss of support:

(i) Christy Lassiter’s wedding USD30,000.00

(ii) Cheryl Lassiter’s wedding USD30,000.00

Subtotal USD60,000.00

Asst Registrar Kwek dismissed the plaintiff’s claims for loss of inheritance and costs of administering the estate of the deceased.

5 The defendant filed Registrar’s Appeal No 600066 of 2003 (“the defendant’s appeal”) against Asst Registrar Kwek’s multiplicand of USD130,000 and against his award of 50% costs (to be taxed) to the plaintiff while the plaintiff filed Registrar’s Appeal No 600067 of 2003 (“the plaintiff’s appeal”) against Asst Registrar Kwek’s entire awards, his dismissals of her claims for loss of inheritance, cost of estate duty administration, certificate for two counsel as well as his costs order. Both the defendant’s and the plaintiff’s appeals were scheduled to be heard together.

6 However, just before the hearing of both appeals, the plaintiff filed two Summonses for Further Directions numbered 600265 of 2003 and 6000278 of 2003 (“the applications”) respectively, praying for leave to adduce further evidence by:

(a) the second and third supplemental Affidavits of Evidence-in-Chief of James M Baker (“Baker”);

(b) the fourth supplemental Affidavit of Evidence-in-Chief of Bruce A Seaman (“Seaman”);

at the hearing of the appeals (hereinafter, the above affidavits will be referred to as the second, third and fourth AEICs of the respective deponents).

7 The applications were scheduled to be dealt with at the hearing of the defendant’s and plaintiff’s appeals. However, in view of the impact my decision on the applications would have on the appeals (and also partly due to time-constraints), I decided to postpone hearing of the appeals proper to a later date, until after I had decided on the applications.

The arguments

The plaintiff’s submissions

8 Mr Hwang, counsel for the plaintiff, pointed out that Registrar’s Appeals are dealt with by way of actual rehearing and the judge treats the matter afresh as though it came before him for the first time. He cited Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] SLR 1234, Augustine v Goh Siam Yong [1992] 1 SLR 767 and Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 2 SLR 233, following the English position in Evans v Bartlam [1937] AC 473. As such, the court has an unfettered discretion to admit further affidavits for the plaintiff’s and the defendant’s appeals. Indeed, in the absence of special reasons, the judge is free to admit fresh evidence and he frequently does so. This principle extends to appeals from the Registrar’s assessment of damages (Chang Ah Lek v Lim Ah Koon [1999] 1 SLR 82). The principles in Ladd v Marshall [1954] 1 WLR 1489 would therefore not apply.

9 Mr Hwang explained he had attempted to put in the additional AEICs for the second tranche of the assessment hearing but the plaintiff’s request was disallowed by Asst Registrar Kwek. He then gave the background leading to the filing of the applications:

(a) Before the first hearing in February 2002, there was a consent order for discovery (made on 15 February 1999) that the plaintiff would give discovery by 1 March 1999, failing which she was barred from adducing documentary evidence at the assessment hearing. The plaintiff failed to comply and accordingly the bar applied.

(b) After the assessment dates had been fixed, the defendant’s solicitors applied for specific discovery in December 2001.

(c) The plaintiff’s case on loss of inheritance (rejected by Asst Registrar Kwek) was based on analysis of the growth of the net wealth of the deceased, through a comparison of the deceased’s Consolidated Financial Statements (“CFS”) over certain years of his lifetime. The deceased’s accountant, Herman Kooymans had exhibited to his affidavit (filed in March 2000) the relevant CFS. Seaman, the plaintiff’s expert witness (an Associate Professor of Economics at Georgia State University) had used the CFS statements as the basis of his first AEIC (sworn on 19 March 2001 and exchanged with the defendant in June 2001) and from there, developed his assessment of the likely growth of the deceased’s net wealth, based on alternative growth rates of 10.75% and 8.6%.

(d) The defendant had responded to the affidavits filed on the
plaintiff’s behalf by filing two AEICs of William Hecht (“Hecht”) on 24 August 2001 and 2 March 2002 (Hecht is a certified public accountant and lawyer whose opinion was sought by the defendant on the disposable income of the deceased between the years 1991–1994, with regards to
the deceased’s reported income (for tax purposes) from two companies, Lassiter Properties Inc (“LPI”) and Micro Design International (“MDI”)).

(e) Although Hecht had seen Seaman’s percentages (of 10.75% and 8.6%) in the latter’s first AEIC, Hecht did not comment on them in either his first or second affidavits; he had merely criticised the tax aspect of Seaman’s views.

(f) Just before the hearing of the first tranche, Seaman revised his affidavit to update his calculations for loss of dependency and to add a third possible growth rate of 4.3%. At the hearing itself, Seaman elaborated orally on his revised affidavit by reference to graphs taken from the data already contained in the plaintiff’s and his first AEIC. As counsel for the defendant indicated he was not ready to cross-examine Seaman in view of what he described as new evidence, counsel obtained leave from court to file affidavits in reply by 14 May 2002, which deadline was subsequently extended to 7 June 2002, as the defendant’s (other) counsel Anthony Wee (“Wee”) could only visit Atlanta at the beginning of May 2002 to obtain documentation from the plaintiff’s American solicitors.

(g) On 7 June 2002, the defendant’s solicitors served on the plaintiff’s solicitor S Murugayian (“SM”) affidavits (with reports) of Hecht and one Carl Bellows (“Bellows”) (Bellows is an American lawyer and expert witness for the defendant, who gave his opinion on Seaman’s testimony that IRS had valued the deceased’s estate as worth USD100m at the time of demise but allowed a “key man” discount to reduce the estate’s value to USD39.1m). Both experts’ reports contained voluminous documents and service was effected just before SM left for England. Although he arranged for the documents to be couriered to his destination, SM did not receive them until 12 June 2002.

(h) Mr Hwang himself left Singapore on 7 June 2002 and for the States on 14 June 2002; he did not see the affidavits of Hecht and Bellows until 14 June. In any case, there was nothing he could do until after the plaintiff or her American lawyer (“JP”) had given their instructions. JP received the aforesaid documents on 11 June 2002 whilst the plaintiff herself received copies a day later.

(i) Baker (an estate agent/broker) who had known the deceased since 1981 was not able to meet up with JP to discuss the defendant’s affidavits and give instructions to prepare an affidavit in reply before he and JP left Atlanta for Singapore on 17 June 2002 for the assessment hearing.

(j) It was after the arrival of Baker and JP in Singapore that the plaintiff’s solicitors decided a reply affidavit was required to answer Hecht’s report and his allegations that:

(i) the transaction concerning the deceased’s family home at Emerald Drive was intended to place the property out of reach of the deceased’s creditors;

(ii) the values attributed to the deceased’s properties in his July 1990 CFS Chapter 11 bankruptcy filings were highly suspect;

(iii) the values of the Orkin transaction in Georgia and the Adirondacks transaction in New York were inflated.

Baker would be the most appropriate person to affirm the reply affidavit as he is an expert in real estate, especially in Georgia, and was personally aware of the transactions, being the deceased’s partner.

(k) However, when the second tranche hearing began on 20 June 2002, Baker’s reply affidavit was not ready as the exhibits had yet to arrive from the US. The...