Man Mohan Singh s/o Jothirambal Singh and Another v Zurich Insurance (Singapore) Pte Ltd (now known as QBE Insurance (Singapore) Pte Ltd) and Another and Another Appeal

• Court: Court of Appeal (Singapore)
• Judge: Chan Sek Keong CJ
• Judgment Date: 30 May 2008
• Neutral Citation: [2008] SGCA 24
• Citation: [2008] SGCA 24
• Defendant Counsel: Ramasamy K Chettiar and Christopher Fernandez (Acies Law Corporation)
• Plaintiff Counsel: Renuka Chettiar, Ganesh S Ramanathan and Andy Chiok (Karuppan Chettiar & Partners)
• Published date: 10 June 2008
• Docket Number: Civil Appeals Nos 85 and 86 of 2007
• Date: 30 May 2008
• Subject Matter: Loss of dependency award,Whether grief and depression were recognisable psychiatric illnesses,Tort,Risk of double recovery if tortious damages awarded for grief,Whether sufficient legal proximity between driver and victims' parents,Section 21(4) Civil Law Act (Cap 43, 1999 Rev Ed),Damages,Whether longer life expectancy justifying higher multiplier than past analogous cases,Whether factually foreseeable that driver's negligence would lead to victims' parents undergoing fertility treatment in attempt to conceive another child,Negligence,Whether negligent driver owing duty of care to victims' parents to avoid causing them to lose all their children in resulting accident,Duty of care,Policy concerns about imposing liability on driver for parents' cost of fertility treatment,Claim for post-traumatic stress and depression

30 May 2008 Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):

Introduction

1 On the evening of 2 December 2002, a tragic accident caused by a negligent driver, who was the second respondent in Civil Appeal No 85 of 2007 (“CA 85/2007”), robbed two loving parents – the appellants in CA 85/2007 (“the appellants”) – of their only children, two teenage sons. Overnight, the appellants’ close-knit family was torn apart and the appellants found themselves childless. They sued the second respondent in CA 85/2007 (“the second respondent”) for:

(a) bereavement;

(b) funeral expenses;

(c) loss of dependency;

(d) damages for post-traumatic shock and depression; and

(e) the cost of fertility treatment undertaken in their attempts (which were ultimately unsuccessful) to conceive another child.

The first respondent in CA 85/2007 (“the first respondent”) was joined as a co-defendant to the appellants’ suit only at a later stage (see [4] below).

2 Being dissatisfied with various aspects of the decision made by the assistant registrar (“the AR”) (see Man Mohan Singh s/o Jothirambal Singh v Dilveer Singh Gill s/o Shokdarchan Singh [2007] SGHC 73 (“the AR’s GD”)) and affirmed in part by the High Court judge (“the Judge”) on appeal (see Man Mohan Singh s/o Jothirambal Singh v Dilveer Singh Gill s/o Shokdarchan Singh [2007] 4 SLR 843 (“the Judge’s GD”)), the appellants appealed to this court via CA 85/2007. The first respondent also filed a cross-appeal to this court (via Civil Appeal No 86 of 2007 (“CA 86/2007”)) against part of the Judge’s decision.

The facts

3 The appellants are Mr Man Mohan Singh s/o Jothirambal Singh (“the first appellant”) and his wife, Mdm Jasbir Kaur (“the second appellant”). They are the lawful parents of Gurjiv Singh (“Gurjiv”) and Pardip Singh (“Pardip”). On 2 December 2002, Gurjiv and Pardip went out with their cousin, who had rented a car bearing the registration number SZA 7159 S. Sometime after 6.00pm on the same day, Gurjiv and Pardip were travelling as back-seat passengers in the car, which was then being driven by the second respondent, a friend of the cousin. The second respondent lost control of the car, which skidded and hit a tree along Changi Village Road. Gurjiv and Pardip died as a result of the accident. They were 17 years old and 14 years old, respectively, at that time.

4 The second respondent left the country after the accident and did not defend the appellants’ action against him. Interlocutory judgment in default of appearance was entered against him on 26 April 2004. The second respondent likewise did not appear before the AR at the assessment of damages, or before the Judge or this court in the ensuing appeals. The first respondent, which was the insurer of the car at the material time, included itself as a party to the action after interlocutory judgment against the second respondent was entered so as to defend the quantum of the awards made to the appellants in respect of the deaths of Gurjiv and Pardip.

The decisions below

5 As provided for under s 21(4) of the Civil Law Act (Cap 43, 1999 Rev Ed), the AR awarded the appellants a total of $20,000 for bereavement. He also awarded the appellants a sum of $10,000 for funeral expenses (the parties later agreed on a sum of $7,000 for this particular item). For the dependency claims, the AR awarded $68,508 and $78,165 for loss of dependency arising from the deaths of Gurjiv and Pardip, respectively. The appellants’ claim for a sum of $10,000 for post-traumatic shock and depression, plus $200 for the cost of transport to Changi General Hospital (“CGH”) to attend grief therapy was denied by the AR.

6 The Judge did not disturb the above aspects of the AR’s decision. However, he overruled the AR in respect of the appellants’ claim for the cost of fertility treatment undertaken in their attempts, following the deaths of Gurjiv and Pardip, to have another child after natural means of procreation did not succeed. The AR had awarded the sum of $32,847.90 for this head of claim on the basis that it was reasonably foreseeable to persons in the position of the second respondent that their negligence could cause persons such as the appellants to lose the sum total of their offspring in the resulting accident. The Judge considered the expenses incurred by the appellants for the purposes of fertility treatment to be a loss that was too remote and that the first respondent and the second respondent (referred to collectively as “the respondents”) should therefore not be held liable for.

The issues on appeal

7 Before us, the appellants argued (in CA 85/2007) for:

(a) an increase in the awards for loss of dependency;

(b) damages for post-traumatic shock and depression; and

(c) the cost of the fertility treatment which they went through.

The first respondent cross-appealed (in CA 86/2007) on the quantum of the awards for loss of dependency. We shall now proceed to deal with each of these issues seriatim.

The awards for loss of dependency

8 The breakdown of the AR’s awards for loss of dependency arising from Gurjiv’s and Pardip’s deaths, respectively, is as follows:

	Gurjiv	Pardip
Projected median monthly; gross salary	$1,730	$2,412.50
Percentage of prospective; salary apportioned to the; appellants	30%	30%
Multiplicand	$519; (ie, 30% of $1,730)	$723.75; (ie, 30% of $2,412.50)
Multiplier	11 years	9 years
Total sum awarded	$68,508	$78,165

The Judge upheld the AR’s awards.

9 It should be noted that the AR arrived at the above figures for Gurjiv’s and Pardip’s respective prospective earnings based on the method of calculation submitted by the appellants. In essence, he derived the projected median monthly gross salary for each of the deceased sons by taking the average of:

(a) the average median monthly commencement salary of each son; and

(b) the average median monthly salary which that son would have earned (“average median monthly salary”).

The figures for both the average median monthly commencement salary and the average median monthly salary were derived from the Ministry of Manpower’s “Report on Wages in Singapore, 2005” publish/etc/medialib/mom_library/mrsd/files.Par.35700.File.tmp/mrsd_2005
ROW> (accessed 14 May 2008) (“the MOM Report”), which both parties had accepted as the basis for computing Gurjiv’s and Pardip’s projected earnings.

10 In CA 85/2007, the appellants sought to raise the proportion of the projected earnings that Gurjiv and Pardip (had they not died in the accident) would have contributed to them from 30% to 40%, and argued that the multiplier should be increased to 13 years in respect of Gurjiv’s death and 11 years in respect of Pardip’s death. On its part, the first respondent cross-appealed (in CA 86/2007) for a reduction in the multiplicand and the multiplier which would lower the awards for loss of dependency to $25,200 and $17,280 with regard to Gurjiv and Pardip, respectively.

11 Before dealing with the first respondent’s specific objections to the AR’s awards for loss of dependency, we shall first address its argument that the AR’s awards meant that Gurjiv and Pardip would have been expected to contribute a total of $1,242.75 to the appellants every month and that this was “not realistic”.[note: 1] The first respondent submitted that the combined multiplicand for both Gurjiv and Pardip should instead be $660 per month, comprising a monthly contribution of $300 from Gurjiv and $360 from Pardip. This “total contribution” argument is untenable. In Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] 1 MLJ 325, a Singapore decision that went on appeal before the Judicial Committee of the Privy Council, it was stated (at 326, per Lord Fraser of Tullybelton) – which position we affirm – that:

[T]he only proper way of deciding whether the global award is too low or too high is by assessing the separate items and arriving at a fair total.

Multiplicand

Prospective earnings

12 The first respondent contended that the AR had pitched Gurjiv’s and Pardip’s employment prospects at a level “much higher than what the evidence show[ed]”.[note: 2] In this regard, the first respondent compared the factual matrix of the present appeals with that in Ho Yeow Kim v Lim Hai Kuen [1999] 2 SLR 246 (“Ho Yeow Kim”), where the deceased son (a 17-year-old accident victim) had already been in the final stages of his mechatronics engineering course at the Institute of Technical Education (“ITE”) when he died, such that his employment prospects were less speculative than those of Gurjiv and Pardip at the time of their deaths. The first respondent did not dispute before this court the finding of fact (based on the evidence of the appellants as well as the vice-principal and teachers of Kuo Chuan Presbyterian Secondary School, where Gurjiv and Pardip had been studying at the time of the accident) that Gurjiv and Pardip would likely have attended the ITE and a polytechnic, respectively. However, the first respondent argued that even if Gurjiv and Pardip would have attended these institutions had they lived, there was inconclusive evidence as to what courses they would have pursued. It also took issue with the fact that the appellants did not call any representative from the ITE or a polytechnic to give evidence at the assessment of damages before the AR. We do not give credence to these arguments. The testimony of representatives from the ITE or a polytechnic, who would not have known Gurjiv or Pardip, would not necessarily have been more helpful than the written and oral testimonies of the above-mentioned vice-principal and teachers of Kuo Chuan Presbyterian Secondary School. If the first respondent had wished to adduce contradictory evidence at the assessment of damages before the AR, it should have summoned the appropriate witnesses at that hearing (which it did not do).

13 The first respondent argued that the AR had erred in accepting the appellants’ calculations of Gurjiv’s...