Man Mohan Singh s/o Jothirambal Singh and Another v Dilveer Singh Gill s/o Shokdarchan Singh and Another

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 27 September 2007
• Neutral Citation: [2007] SGHC 149
• Docket Number: Suit No 137 of 2004 (Registrar's Appeals Nos 126 and 127 of 2007)
• Date: 27 September 2007
• Published date: 10 January 2008
• Year: 2007
• Plaintiff Counsel: Renuka d/o Karuppan Chettiar (Karuppan Chettiar & Partners)
• Citation: [2007] SGHC 149
• Defendant Counsel: Ramasamy s/o Karuppan Chettiar (ACIES Law Corporation)
• Court: High Court (Singapore)
• Subject Matter: Parents' only children killed in road accident,Negligence,Whether claim for cost of fertility treatment should be allowed,Whether award for loss of dependency should be adjusted,Damages,Tort,Cross-appeals against award of damages,Measure of damages,Whether claim for nervous shock should be allowed

27 September 2007

1 This judgment relates to cross-appeals with respect to the award of damages by the Assistant Registrar to the parents of two children, Gurjiv Singh (“GS”) and Pardip Singh (“PS”), who were killed in a road accident.

Background

2 On 2 December 2002, GS and PS, the only children of the plaintiffs, Mr Man Mohan Singh s/o Jothirambal Singh and Mdm Jasbir Kaur, went out with their cousin, who had rented a car. Unfortunately, there was an accident during the outing while the rented car was being driven by their cousin’s friend, the first defendant, Mr Dilveer Singh Gill s/o Shokdarchan Singh (“Dilveer”). Both GS, who was then 17 years old, and PS, who was then 14 years old, were killed in the said accident. Dilveer cannot be traced and the co-defendant, Zurich Insurance (Singapore) Pte Ltd (“Zurich Insurance”), the first defendant’s motor insurer, was left to defend the action instituted by the plaintiffs with regard to the loss of their children.

3 The plaintiffs claimed damages and consequential loss under the following heads:

(1) bereavement;

(2) funeral expenses;

(3) loss of dependency;

(4) post-traumatic shock and depression as a result of the loss of their children and consequential transport expenses for medical consultation at Changi General Hospital; and

(5) the cost of fertility treatment undertaken in a failed attempt to conceive another child.

4 The Assistant Registrar awarded the plaintiffs $20,000 for bereavement pursuant to s 21 of the Civil Law Act (Cap 43, 1999 Rev Ed), $10,000 for funeral expenses, $68,508 for loss of dependency with respect to the death of GS and $78,165 for loss of dependency with respect to the death of PS. He also awarded the plaintiffs $32,847.90 for the cost of fertility treatment but rejected their claim for post-traumatic shock or depression: see Man Mohan Singh s/o Jothirambal Singh and anor v Dilveer Singh Gill s/o Shokdarchan Singh and anor [2007] SGHC 73 (“GD”).

5 The plaintiffs and Zurich Insurance appealed against the Assistant Registrar’s decision. In RA No 127 of 2007, the plaintiffs appealed against the Assistant Registrar’s award for loss of dependency and his rejection of their claim for nervous shock.

6 In RA No 126 of 2007, Zurich Insurance appealed against the Assistant Registrar’s award for funeral expenses, loss of dependency and fertility treatment.

7 At the hearing of the appeal, the parties reached a settlement in relation to the award of funeral expenses by agreeing to reduce the amount payable to the plaintiffs for this head of claim from $10,000 to $7,000.

8 I dismissed the plaintiffs’ appeal in RA No 127 of 2007. As for Zurich Insurance’s appeal in RA No 126 of 2007, I dismissed the appeal against the award for loss of dependency and allowed the appeal against the award for the fertility treatment. I now set out the reasons for my decision.

Post-traumatic shock or depression

9 The plaintiffs, who had made a claim for $10,000 for post-traumatic shock or depression and $200 for consequential transport charges, appealed against the Assistant Registrar’s rejection of their claim.

10 In cases such as the present, a person can claim damages for nervous shock only if he or she was present at the accident or at its immediate aftermath. In McLoughlin v O’Brian and others [1983] 1 AC 410 (“McLoughlin”), Lord Wilberforce said that there is a real need for the law to place some limitation on the extent of admissible claims for nervous shock, which is in its nature capable of affecting a wide range of people. His Lordship explained at pp 422 and 423 what must be proven in such a claim in the following terms:

It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused…. As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant’s negligence that must be proved to have caused the “nervous shock”. Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the “aftermath” doctrine, one who, from close proximity, comes very soon upon the scene should not be excluded…. Lastly, as regards communication, there is no case in which the law has compensated shock brought about by communication by a third party…. The shock must come through sight or hearing of the event or of its immediate aftermath.

[emphasis added]

11 Although the parents of GS and PS are within the class of persons who are entitled to make a claim for nervous shock, the Assistant Registrar thought that they did not satisfy the test of physical proximity. He explained in his GD at [32] as follows:

For example, while the plaintiff in McLoughlin was not at the scene of the accident, she succeeded in her claim because she was at the hospital soon after, where she saw her injured husband and her son who was screaming in pain, and where she was told that her youngest daughter had died. In a similar vein, in [Pang] Koi Fa, the plaintiff was present in the hospital as her daughter suffered from the effects of a negligent operation and died after much pain and suffering caused by leaking brain fluid and meningitis. These cases are a far cry from the present facts. The [plaintiffs] had received information that their sons had met with an accident at 8.50 pm and rushed to the hospital soon after. By that time, [PS] had already died and [GS] was pronounced dead soon after at 11 pm. There was no evidence to suggest that the [plaintiffs] saw their mangled bodies, or witnessed their pain and suffering.

12 What appeared to matter in McLoughlin ([10] supra) was that the victims were in the same condition in the hospital as at the accident. They were covered with oil and mud, and distraught with pain. In contrast, in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (“Alcock”), it was held that relatives who did not witness the tragic accident that caused the death of the victims but had merely identified their bodies in the mortuary some nine or more hours after the event were not entitled to damages for nervous shock.

13 In Hevican v Ruane [1991] 3 All ER 65 (“Hevican”), Mantell J held that the plaintiff, whose favourite son was killed when the school minibus that he was in collided with a lorry because of the minibus driver’s negligence, was entitled to damages for continuing reactive depression which prevented him from returning to work even though his son was already dead by the time he reached the mortuary. This case was relied upon by the plaintiffs in the present case but it is not really helpful as both Lord Keith and Lord Ackner said in Alcock ([12] supra) that the decision in Hevican was open to serious doubt.

14 In truth, while the distinction between the claims in McLoughlin ([10] supra) and Alcock ([12] supra) may be defensible, the distinctions in some of the other cases on proximity to the accident are rather unconvincing. It was thus not surprising that in 1998, the English Law Commission recommended in its Report on Liability for Psychiatric Illness (Law Com No 149, 1998) that physical proximity to an accident should no longer have to be proven to succeed in an action for nervous shock. More recently, the English Court of Appeal adopted a less restrictive approach towards the aftermath doctrine in Galli-Atkinson v Seghal [2003] EWCA Civ 697 (“Galli-Atkinson”). In this case, the appellant witnessed a police cordon at the scene of an accident, in which her daughter was killed. She was informed that her daughter had been killed, became hysterical and did not view her daughter’s body at that time. She was still in a state of denial when she visited the mortuary where her daughter’s body was kept around two hours later. She was extremely distraught when she finally saw the disfigured face and upper part of her daughter’s badly injured body and she suffered a psychiatric condition as a result of her daughter’s death. The English Court of Appeal rejected the ruling below that the deceased’s mother had failed to prove that her psychiatric condition had been caused by witnessing the fatal accident or its aftermath. Latham LJ explained that the deceased’s mother’s visit to the mortuary could not be excluded from the events regarded as a part of the aftermath of the accident. These events stretched from “the moment of the accident until the moment [the mother] left the mortuary”. Her visit to the mortuary was distinguished from that of the relatives in Alcock ([12] supra), who had visited the mortuary to identify the bodies of the victims. In Galli-Atkinson, the deceased’s mother was not at the mortuary for the purpose of identifying her daughter’s body but “to complete the story” as she had not wanted to believe that her daughter was dead.

15 In the present case, I would rather not reject the plaintiffs’ claim for damages for nervous shock on the basis of the aftermath doctrine. Instead, their claim may be dismissed on another ground, namely, that they had failed to meet a fundamental requirement for a claim for nervous shock, which is that it must be established that they suffered a recognisable psychiatric illness after the shock. In McLoughlin ([10] supra), Lord Bridge explained at p 431 that “the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness”. He added that the common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured because anxiety and depression are normal human emotions.

16 That grief alone is insufficient for a claim for damages for nervous shock was also stressed in Pang Koi Fa...