Lim Fook Lau and Another v Kepdrill International Incorporated SA and Others

• Jurisdiction: Singapore
• Judge: Judith Prakash JC
• Judgment Date: 27 October 1992
• Neutral Citation: [1992] SGHC 272
• Date: 27 October 1992
• Subject Matter: Damages,When appellate court will interfere,Whether appropriate percentage of available surplus applied,Assessment of damages,Civil Procedure,Estate claim,Whether award of interest justified,Whether appropriate multiplier and multiplicand applied,Death,Interest on lost years earnings,Dependency claim,Available surplus,Grounds for awarding,Appeals,Lost years earnings
• Docket Number: Suit No 975 of 1986
• Published date: 19 September 2003
• Defendant Counsel: Karuppan Chettiar (Murphy & Dunbar)
• Court: High Court (Singapore)
• Plaintiff Counsel: Joseph Ang (Lee & Lee)

Cur Adv Vult

This is an appeal by the defendants against two items forming part of the award made by the learned senior assistant registrar in respect of damages arising from the death of Aileen Wong Foong Oi. The items appealed against are as follows:

I Estate claim (lost years earnings)

(i) (a) Pre-trial loss of earnings $ 171,400

(b) Post-trial loss of earnings $ 648,600

(ii) Interest on pre-trial loss $ 14,676

II Dependency claim by Madam Lim

(a) Pre-trial loss of dependency $ 54,000

(b) Post-trial loss of dependency $ 6,000

The facts of the case are set out with admirable clarity in the grounds of decision of the learned senior assistant registrar. There is no need to repeat them in detail here. It suffices to say that the deceased was nearly 30 years old when she was killed in the collision between the vessel Eniwetok and the Sentosa cable car line. She was a qualified doctor and was working as a locum prior to setting up her own clinic in Bedok New Town.

Lost years earnings

The award to the estate of the deceased in respect of her lost years earnings has been challenged on the following grounds:

(1) It was computed on the basis of a total of almost 21 years whereas the correct multiplier should have been 13.

(2) According to the defendants, the multiplicand applied was an average monthly income of the deceased of $14,250 which they submitted was astronomically high.

(3) The percentage of available surplus applied to the case should have been 30% instead of the 40% adopted by the learned senior assistant registrar.

(4) The award of interest on the pre-trial portion of the claim was wrong in law.

Counsel for the plaintiffs/respondents laid great emphasis on the limited role of an appeal judge when sitting on appeal against an award of damages. The long established principle both in England and in Singapore is that the appeal court will only interfere with an award of damages when it is convinced either that the trial judge acted upon some wrong principle of law or secondly, that the amount awarded is so manifestly high or low as to have been a wholly erroneous estimate of the damage: see Davies & Anor v Powell Duffryn Associated Collieries Ltd [1942] AC 601 Taylor v O`Connor [1971] AC 115[1970] 1 All ER 365[1970] 2 WLR 472 Chan Heng Wah & Anor v Peh Thiam Choh & Anor [1988] 1 MLJ 74 and Peh Diana & Anor v Tan Miang Lee [1991] 3 MLJ 375

In respect of the lost years earnings awards there was an error in principle in that having assessed the loss of earnings for the period from the date of death until the date of trial, the learned senior assistant registrar then went on to decide on a multiplier for the future loss of earnings based on the age of the deceased as it would have been at the date of trial. The decision of the House of Lords in Graham v Dodds [1983] 2 All ER 953[1983] 1 WLR 808 is clear: in a fatal accident case the multiplier must be calculated from the date of death and not from the date of the trial. Lord Bridge in his judgment (with which all the other law lords agreed) specifically approved the following passage of Lord Fraser`s judgment in Cookson v Knowles [1978] 2 All ER 604[1979] AC 556[1978] 2 WLR 978 which read:

... in the present claim under the Fatal Accidents Acts ... different considerations apply. In a personal injury case, if the injured person has survived until the date of trial, that is a known fact and the multiplier appropriate to the length of his future working life has to be ascertained as at the date of trial. But in a fatal accident case the multiplier must be selected once and for all as at the date of death, because everything that might have happened to the deceased after that date remains uncertain. Accordingly having taken a multiplier of 11 as at the date of death, and having used 21U2 in respect of the period up to the trial, it is in my opinion correct to take 81U2 for the period after the date of trial.

As the learned senior assistant registrar did not apply this rule, I have now to adjust the award on the basis of the correct multiplier.

The defendants/appellants contended that on the basis of previous cases, the facts here indicate that the applicable multiplier would normally have been 15. They cited Chan Heng Wah [1988] 1 MLJ 74 See Soon Soon v Goh Yong Kwang & Anor [1992] 2 SLR 242 Lai Chi Kay & Ors v Lee Kuo Shin [1981] 2 MLJ 167 Peh Diana [1991] 3 MLJ 375 Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] 1 MLJ 325 and Tay Cheng Yan v Tock Hua Bin & Anor [1992] 1 SLR 761 all of which had taken a multiplier of 15 years in respect of injured/deceased persons aged between 20 to 28 years old. They further argued that in the instant case, the multiplier should be reduced to 13 years because the deceased might not have worked consistently had she lived since she would have had to look after her sick husband and her child.

I have come to the conclusion that the correct multiplier to be applied in this case should be 16 years. In so doing I have been guided by the following cogent passage from Kemp & Kemp The Quantum of Damages para 21-002:

Although the multiplier has to be taken as from the deceased`s death, the court cannot ignore the relevance of the period which has expired between the death and the date of the trial. In the case of a live plaintiff a substantial discount is made because the award gives him a present lump sum as compensation for a stream of future losses or expenses. In a Fatal Accidents Act claim, if a substantial number of years has expired between the death and the trial, only part of the lump sum will represent compensation for future losses or expenses and therefore a smaller discount should be made to take account of the receipt of the lump sum. The purpose of taking the multiplier as from the death is to take account of the contingencies which might have arisen between the death and the trial. But in most cases, certainly in most cases where the deceased is comparatively young, those contingencies count for less than the fact that a considerable part of the lump sum award represents past loss and does not need to be discounted. Thus, one finds that the multipliers in a Fatal Accidents Act claim, taken from the date of death tend to be rather larger in the case of a deceased than the multiplier, taken from the date of the trial, in the case of a live plaintiff of the same age. On the other hand, if in both cases the multipliers were taken from the date of the trial, the multiplier in the case of a Fatal Accidents Act claim would be rather lower since contingencies affecting two or more lives have to be taken into account. In the case of a live plaintiff, it is only the contingencies affecting him that are relevant. In the case of a Fatal Accidents claim, the contingencies affecting the deceased and all the dependants have to be taken into account.

I agree with the learned senior assistant registrar`s finding that the deceased, as a doctor in private practice would have been able to work till 60 years of age but for the accident. In fact this was a conservative estimate. There is no compulsory retirement age for private medical practitioners and provided she was in good health the deceased could probably have worked till her late 60s. She would therefore have had a further working life of between 30-35 years had it not been for the accident. I accept the learned senior assistant registrar`s finding that the deceased had she lived would have set up a clinic in Bedok New Town and would have worked consistently thereat. This finding was amply supported by the evidence. Further, while she might have taken some time off because of her husband`s illness, this would be minimal because on a long term basis she would be the sole bread winner (her husband being terminally ill) and further she would not have had any income at all during the periods when she was not working as a locum would have been employed to run the clinic in her absence. I do not agree that she would have stopped work to take care of her child. Quite apart from the fact that the evidence showed that her mother was willing and able to look after the deceased`s son, alternative child care possibilities would readily be available in Singapore for a person with the deceased`s earning capacity.

I note that in Peh Diana `s case,4 the assistant registrar originally applied a multiplier of 16 years which was reduced to 15 years by the judge on appeal. Peh Diana `s case4 was, however, a personal injury case and therefore the multiplier...