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

CourtHigh Court (Singapore)
JudgeYap Yew Choh Kenneth AR
Judgment Date17 May 2007
Neutral Citation[2007] SGHC 73
Citation[2007] SGHC 73
Publication Date25 May 2007
Plaintiff CounselRenuka Chettiar (Karuppan Chettiar & Partners)
Defendant CounselRamasamy s/o Karuppan Chettiar and Christopher Fernandez (ACIES Law Corporation)

17 May 2007

AR Yap Yew Choh Kenneth:

Introduction

1 This case for assessment of damages raises a novel head of claim under the law of negligence. It involves the question of whether bereaved parents can claim for the cost of medical expenses incurred in their attempts to conceive again in order to replace their demised children. At stake is the broader issue of whether a tortious wrongdoer should owe a duty of care to secondary victims who are the next of kin of the primary victim, and who incur reasonably foreseeable expenses in finding a substitute for the loss of their loved ones.

2 As can be imagined, this rather unusual claim raises thorny questions of law and policy. It potentially opens the door to a wide scope of liability, which is of understandable concern to motor accident insurers. Yet, to deny the claim would result in bereaved parents having no recourse under such circumstances.

3 I considered the matter at length. I do not believe the loss should lie where it falls. I think this is a case where the boundaries of tort law can be pushed outwards without violating its self-imposed constraints of legal proximity and countervailing policy considerations. The heart of the matter is whether it is reasonable for a negligent driver who takes the lives of primary victims in an accident to contemplate that their parents may be minded to and have reasonable justification for undergoing medical treatment in order to attempt to replace their only offspring. I cannot in good conscience find this proposition to be unreasonable or unfair to the defendant. I therefore allowed the claim by the plaintiffs, and will explain my decision in detail. I will first proceed to lay out the background facts and deal with the traditional heads of claim.

Facts

4 The plaintiffs are the lawful parents of Gurjiv and Pardip Singh (“Gurjiv” and “Pardiv” respectively), both of whom were killed as a result of a road accident on 2nd December 2002 whilst travelling as back seat passengers in a motor car driven by the Defendant. The defendant absconded and it was left to the co-defendant insurer of the motorcar at the relevant time (“the insurer”), to defend the action.

5 Gurjiv and Pardip were the plaintiffs’ only children. The first plaintiff (“the father”) and the second plaintiff (“the mother”) were left childless as a result of the accident at the age of 46 years and 44 years of age respectively. They are now 51 and 48 years old respectively. At the time of their death, Gurjiv was 17 years old and Pardip was 14 years old.

6 The plaintiffs claim 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 plaintiffs’ only two children, and the consequential transport expenses incurred for attending medical appointments at Changi General hospital; and

(5) Cost of fertility treatments undertaken by the mother.

7 I will deal with each of these heads of claim in turn.

Bereavement

8 Pursuant to section 21 of the Civil Law Act (Cap 43), I granted the plaintiffs $20,000 as bereavement for the death of both their sons.

Funeral Expenses

9 There was some dispute as to funeral expenses as the plaintiffs could not produce receipts for all of the expenses incurred. They claimed $10,000 for funeral expenses for both children, representing the cost of customary prayers and cremation.

10 Counsel for the co-defendant insurer, Mr Ramasamy s/o Karuppan Chettiar, dutifully objected to the lack of evidence in this regard. Ms Renuka Chettiar, counsel for the plaintiffs, noted that in Ng Lim Lian v Port of Singapore Authority [1997] SGHC 62, C.R. Rajah JC (as he then was) awarded $8,000 as funeral expenses even though the plaintiffs in that case were not able to produce any accounts or receipts relating to such expenses. Mr Ramasamy pointed out that there was an explanation provided in Ng Lim Lian as to why documents were unavailable, and that no such explanation was forthcoming in the present case.

11 I took note of Mr Ramasamy’s objections. However, it is understandable that in a time of loss, the last concern on the mind of the bereaved would be retaining receipts for the purposes of litigation. I therefore adopted a broad brush approach and granted $10,000 as a reasonable estimate of the funeral expenses of both deceased children.

Loss of Dependency

12 The parties naturally disagreed on the relevant multiplier and multiplicand for the plaintiffs’ dependency claim.

13 Gurjiv and Pardip were both from Kuo Chuan Presbyterian School (“the school”). Both the plaintiffs as well as the teachers from their school were called to give evidence on their academic performance and future earning potential.

14 At the time of his death, Gurjiv was in Secondary 5 (normal stream), and had just completed his G.C.E. ‘O’ Levels examinations a week before his death. Academically, he was an average to below average student, having obtained a Grade 6 or better in only 2 of his 6 subjects at the G.C.E. ‘O’ Levels. However, by all accounts, he had a good attitude, was a reliable and helpful student, and had served as a class monitor. Gurjiv was also particularly interested in and showed an early aptitude for audio visual skills. According to his father, he was sociable, eloquent and also exhibited some potential for disk-jockeying. His geography teacher, Ms Helen Ng, thought that there was a high chance that he would have qualified for the Institute of Technical Education (I.T.E.), although she acknowledged that he would not likely have made it to Polytechnic. Mr Ramasamy pointed out in his submissions that there was no strict proof in this regard. While that may be so, I did not have reason to doubt that, based on his modest academic performance thus far, Gurjiv would more likely than not have entered and graduated from the I.T.E., were he still alive today.

15 Pardip was in Secondary 2 (express stream) at the time of his death. According to his form teacher, Mr Brian Koh, Pardip was an intelligent boy, although he was playful, talkative, and less hardworking. He was very interested in computers and had expressed his interest in computers to his parents. Pardip had passed his Secondary 2 examinations with reasonable grades (he scored an aggregate of 55.2%, although he failed 5 of a total of 10 subjects taken) and was promoted to the Secondary 3 express stream. His form teacher confirmed that all the pupils in Pardip’s class have since finished Secondary 4 and have secured places in Polytechnics or higher institutions of learning. The vice-principal of the school, Mrs Grace Chua, revealed that for the class of 2004, 97.4% of the school’s students were eligible for Polytechnic. To my mind, there was no doubt that Pardip would have in all likelihood qualified for a position in a Polytechnic, and would have pursued a course of his interest, very likely computing.

Plaintiffs’ case for loss of dependency

16 Counsel for the plaintiff submitted that Gurjiv would have earned at least $1,390 per month as his average commencing median salary had he not died, and would have eventually drawn a gross median salary of $2,070 per month. This figure is derived from the Report of Wages 2005, and is based on the assumption that he would have taken on employment in either the clerical, production craftsman or plant/machine operator and assembly work categories. For the sake of clarity, I note that this figure comprises basic salary, fixed allowances, overtime pay and commissioners, but excludes bonuses. Based on the average between the starting and median salaries, the plaintiffs proposed a multiplicand of $1,730 per month. Ms Renuka also submitted that for both deceased, 40% of their monthly salary would be apportioned to the benefit of the plaintiffs, and that a multiplier of 14 years should be adopted.

17 In Pardip’s case, Ms Renuka submitted that he would have been able to secure employment as a Technician or Associate Professional, which provides a commencing gross median salary of $1,975 per month and a gross median salary of $2,850 per month. She then proposed $2,412.50 as the average figure for the purposes of the multiplicand. Applying a similar apportionment percentage of 40% and multiplier of 14 years, the dependency claim by the plaintiffs amounted to $116,256 for Gurjiv and $162,120 for Pardip.

Co-defendants’ case for loss of dependency

18 Mr Ramasamy objected strenuously to the plaintiffs’ measures of assessment. He regarded the dependency claim based on Gurjiv to be in the realm of speculation, as there was no clear evidence that he would enter ITE, nor was there evidence of the course he would have taken, the eventual career he would have pursued or the salary he would have earned. Given these uncertainties, Mr Ramasamy proposed a multiplicand of $1,000 per month, discounted from the median monthly commencing gross wage of production craftsmen, plant and machine operators, and sales and service workers, which stands at $1,232.66. As for the percentage of apportionment, Mr Ramasamy submits that the percentage should be 30%, and that the multiplier for Gurjiv and Pardip should be 7 years and 4 years respectively.

Award on loss of dependency

19 It is axiomatic that each case should be decided on its own facts, and attempts to compare and distinguish authority in such instances should be undertaken with a measure of circumspection. I found it more helpful to start from first principles, and to refer to previous authority to provide a rough indicia of the acceptable ranges or parameters within which an award might be granted in this particular case.

20 I started from the position that the determination of lost income to dependents is not to be premised on mere speculation of pecuniary benefit. The plaintiffs have to show that they have lost a reasonable possibility of pecuniary advantage (see Ng Siew Choo v Tan Kian Choon [1990] SLR 331, at 335...

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