RECOVERING THE COST OF VISITING AN INJURED PLAINTIFF

• Citation: (1993) 5 SAcLJ 254
• Date: 01 December 1993
• Published date: 01 December 1993

A person who is hospitalized for injuries caused by an accident will probably be visited by members of his family during the period he is in hospital. Can the transport expenses incurred by the injured party’s family members be recovered from the tortfeasor responsible for the accident?

At first blush, the answer would appear to be “No”. The expenses are incurred by the injured party’s family, and not the injured party himself. It is not the injured party’s loss. Nor are the expenses incurred on the injured party’s behalf.

However, the question was answered in the affirmative by K S Rajah JC recently in his judgment in Leong Kwong Sun @ Leong Kong Sun v Teng Ching Sin & Singapore Bus Service (1978) Limited1 (Suit No. 2543 of 1988) (hereafter referred to as “Leong Kwong Sun”) delivered on 8 February 1993. There, the plaintiff was allowed to recover as special damages the transport expenses incurred by his family in visiting him in hospital.

In so deciding, the Judicial Commissioner is not unsupported by authority. In Malaysia, for instance, the reported cases appear to be unanimous in deciding that such claims are recoverable. But the decision in Leong Kwong Sun does mark a departure from at least 3 Singapore High Court decisions where similar claims were disallowed.2

What then is the position in Singapore today as regards the recoverability of transport expenses incurred by the injured party’s family members?

FIRST PRINCIPLES

Before dealing with the cases, it would be useful to consider whether, on first principles, claims for transport expenses incurred by the injured party’s family members should be recoverable.

It is quite clear that the members of the injured party’s family have no cause of action against the tortfeasor so as to enable them to recover the transport expenses which they have incurred. The tortfeasor owes no duty to the

injured party’s family members. The decision of Lai Chi Kay & Ors v Lee Kuo Shin3 illustrates this point.

The first plaintiff came from Hong Kong and was studying in Singapore on a scholarship when he was knocked down by the defendant’s car. The third plaintiff was the first plaintiff’s mother. On being told of the accident, she flew from Hong Kong to Singapore to be with her son. She claimed special damages suffered by her for air fares, accommodation and food, taxi fares and loss of earnings.

The defendant submitted that the mother’s claim was not recoverable in law. The argument was that the defendant owed a duty only to other persons who are using the road on which he is driving and those whose property may be on or adjoining the road and no other persons. This contention was accepted by F A Chua J, who said:

“The law as regards the claim of a third party for loss of expense incurred as a result of injury to another person is this. At one time, there was considerable support for the view that a person could sue if he had necessarily incurred expense as a result of the defendant’s negligence. So, a parent could sue for expense he had incurred through injuries caused to his child by the defendant’s negligence. Following the decision in Receiver for the Metropolitan Police District v Croydon Corporation4 the earlier view must be considered erroneous and those cases in support of it wrongly decided. Therefore, in the normal run of cases, a third party will have no direct remedy against the wrong-doer.”5

This is reinforced by the decision of the majority of the Court of Appeal in Ang Eng Lee & Anor v Lim Lye Soon.6 The first plaintiff, an eight year old infant, was knocked down and injured by a lorry driven by the defendant. Suing by his father and next friend, he brought this action against the defendant claiming damages for negligence. Joined as the second plaintiff was his father, who claimed damages for loss and expenses incurred on account of the injuries sustained by the first plaintiff. L P Thean J, who delivered the judgment of the majority of the Court of Appeal, said:

“The second plaintiff claimed against the defendant the sum of $1,453 as special damages incurred on account of the injuries sustained by the 1st plaintiff. These are loss and expenses of the first plaintiff and not the second plaintiff. The second plaintiff has no cause of action against the defendant. …

[T]he loss and expenses set out in the statement of claim, if proved, are those of the first plaintiff and he is entitled to recover them in this

action; they arose out of his need for the services which in this case were paid for by the second plaintiff. But the second plaintiff has no cause of action against the defendant and ought not to have been joined in the first place.”7

If the family members of the injured party are unable to sue the tortfeasor directly for the expenses which they have incurred, it would seem anomalous that they should be able to recover the same sums by the back door through the injured party. The anomaly is compounded by the fact that the transport expenses are incurred not by the injured party but by his family members. There is no pecuniary loss incurred by the injured party.

Of course, if the injured party is the sole breadwinner, the transport expenses incurred during the visits by his wife and children are arguably the injured party’s loss, since he is the provider of the funds. But apart from this exceptional situation, it is difficult to fathom how the transport expenses incurred by the injured party’s family members can be construed as an item of special damage suffered by the injured party.

Nevertheless, there is a considerable amount of authority for saying that a plaintiff may recover as special damages the transport expenses incurred by his family in visiting him in hospital. The author proposes to deal with the position in England, Australia and Malaysia before discussing the local cases.

THE ENGLISH POSITION

The English practitioner’s textbook Kemp & Kemp8 states: “The reasonable cost of visits to a plaintiff in hospital will usually be recovered.”9 It cites as authority Kirkham v Boughey10 and Olsen v Demolition Co Ltd.11

Kirkham v Boughey deserves some detailed discussion as K S Rajah JC quoted extensively from it in Leong Kwong Sun. This will be done in the course of the discussion on Leong Kwong Sun. For the present purposes, it suffices to note that Diplock J said in Kirkham v Boughey:

“Visits by a spouse may well be a factor in the recovery of a patient, and a visit to a wife in hospital may thus be a proper step in mitigating the damage sustained by loss of consortium by reducing the period during which the consortium is lost. But if the sole justification for the visit is the comfort or pleasure which it gives to the wife, then I think it is not recoverable.”12

Diplock J’s comments must be read in their context. The statements were made in response to the submission that “husbands are frequently awarded, as part of their damages for injuries to their wives, the cost of visiting the wife in hospital”. The damages in respect of transport expenses are awarded to the husband, not the injured wife, in respect of his claim for the wrong done to his quasi-proprietary interest in the consortium of his wife.

Nevertheless, in Olsen v Demolition Co Ltd, Ashworth J, after quoting Diplock J’s statement that “Visits by a spouse may well be a factor in the recovery of a patient,” said:

“I have no doubt that Mrs Olsen’s visits to the plaintiff were an important element in his recovery, which would have been very much slower in their absence. I regard the cost as an expense reasonably incurred by him in the process of recovery and as such the items can properly be claimed from the defendants. Although the point was not argued, it may be that these expenses could properly be regarded as necessaries for which the plaintiff was prima facie responsible.”13

Another case which should be considered is that of Donnelly v Joyce.14 The plaintiff was an infant suing by his father and next friend. The special damages claimed comprised 3 items:

1. 1. travelling expenses of his parents to and from hospital;

2. 2. cost of special socks and boots made necessary by his injuries; and

3. 3. 2 years’ loss of wages incurred by his mother while caring for him.

The trial judge awarded damages in respect of all 3 items. The defendant appealed against the award in respect of the third item.

The English Court of Appeal held that the third item was the plaintiff’s loss, and that the plaintiff was entitled to recover that loss. In delivering the judgment of the Court of Appeal, Megaw LJ said:

“The defendant has not … challenged the validity of, or the entitlement of the plaintiff to recover in this action, the first two items of the particulars of special damage … The defendant, indeed, agreed the amount on both those heads, assuming … that the defendant was liable at all. Yet these amounts both represent payments made by the father or mother, or both, out of their own pockets, for the benefit of the infant, rendered necessary by the defendant’s fault. In what relevant respect do these items of special damage differ, so far as concerns the right of the plaintiff

to recover them in this action in which he alone is the plaintiff, from the item of money lost by the mother in order to give nursing attention to her infant son necessitated by the defendant’s wrongdoing? If the defendant is right in contending that this latter item is not recoverable in this action because the mother has not been joined as a plaintiff, how are the first two items recoverable? The suggested principle applies equally to all the items. The mother’s loss of wages can properly be treated, for the purpose of the principle now in issue, as though it were of an identical nature with the payments covered by the other two items.

We do not agree with the proposition … that the plaintiff’s claim … is properly to be regarded as being …“in relation to someone...