Tan Harry and Another v Teo Chee Yeow Aloysius and Another

• Judge: Woo Bih Li J
• Judgment Date: 04 November 2003
• Neutral Citation: [2003] SGHC 275
• Citation: [2003] SGHC 275
• Defendant Counsel: Myint Soe and Deepak Raja (MyintSoe Mohamed Yang and Selvaraj),Christopher Chong (Rodyk and Davidson)
• Published date: 26 November 2003
• Plaintiff Counsel: Daniel John and Marc Wang (John, Tan and Chan)
• Date: 07 November 2003
• Docket Number: Suit No 814 of 2001 (Registrar's Appeals Nos 162, 164 and 165 of 2003)
• Court: High Court (Singapore)
• Subject Matter: Damages,Whether multiplicand and multiplier should be increased,Appeals,Whether plaintiffs should be entitled to claim special damages,Special damages not pleaded,Role of appellate judge,Rules in awarding,Appeal from registrar to judge,Multiple defendants who advanced different grounds of appeal in respective Notices of Appeal,Special damages,Tort,Courts and Jurisdiction,Measure of damages,Whether any benefit accruing to dependant by reason of deceased's death must be deducted from dependency claim,Negligence,Whether aggravated damages should be awarded,Whether one defendant should have benefit of success of appeal of other defendant,Deceased died after anaesthetic procedure,Liability conceded by defendant anaesthetist and defendant hospital,Whether plaintiffs' costs in respect of Coroner's Inquiry into death of deceased claimable as special damages,Whether damages awarded to plaintiffs as dependants should be increased,Aggravation,Exclusions,Whether award for pain and suffering should be increased

Introduction

1 The first and second plaintiffs, Harry Tan ("Mr Tan") and Veronica Yeo Kwee Cheng ("Mdm Yeo"), were the father and mother respectively of one Philip Tan Kok Leong (“Philip”). He died intestate on 1 October 1999 at the hospital of the second defendant Gleneagles Hospital Limited (“Gleneagles”) after an anaesthetic procedure administered by the first defendant, an anaesthetist by the name of Aloysius Teo Chee Yeow (“the Anaesthetist”). Philip was 35 years of age when he died. Mr Tan was 73 and Mdm Yeo was 60 at the time of his death.

2 The Plaintiffs issued the present Writ of Summons claiming damages, both as dependants as well as administrators of Philip’s estate, for negligence against the Anaesthetist and Gleneagles.

3 Liability was conceded by the Defendants and on 4 January 2002, interlocutory judgment was entered on the basis of 100% liability against the Defendants. Interest and costs were reserved to the Registrar conducting the hearing for assessment of damages.

4 After hearing evidence and submissions, an Assistant Registrar (“AR”) made the following orders on 26 May 2003:

1. The 1st and 2nd Defendants pay the Plaintiffs the dependency claim amounting to S$180,580.80;

2. The 1st and 2nd Defendants pay the Plaintiffs the estate claim of S$54,252.86, derived as follows:-

(a) Special Damages amounting to S$37,513.90;

(b) Interest on Special Damages at 3% p.a. from the date of death to date of trial, amounting to $3,938.96;

(c) Pain and suffering amounting to $2,500;

(d) Interest on General Damages at 6% p.a. from the date of Writ to date of trial, amounting to $300;

(e) Bereavement amounting to S$10,000.

3. The Plaintiffs pay costs to the 1st and 2nd Defendants on an indemnity basis from 5 March 2003 to be agreed or taxed save that the 1st and 2nd Defendants are to pay the costs of the half-day hearing on 26th May 2003 fixed at $3,000; and

4. The 1st and 2nd Defendants are to pay the Plaintiffs’ costs of these proceedings up to and including 4 March 2003 on a standard basis to be agreed or taxed.

5 Each of the different sides was dissatisfied with a certain aspect or aspects of the order and three appeals were filed.

6 The Plaintiffs’ appeal covered various aspects:

(a) that the damages awarded to them as dependants should be increased,

(b) that the special damages awarded to the estate should be increased,

(c) that the amount awarded for pain and suffering should be increased,

(d) that aggravated damages should have been awarded,

(e) that the costs order in favour of both the Defendants should be reversed in favour of the Plaintiffs. However, this would only apply if the Plaintiffs succeeded on various items to the extent that the damages awarded to them exceeded the sum mentioned in a joint offer to settle.

7 The Anaesthetist’s appeal was in respect of one point ie that certain assets inherited by the Plaintiffs should be deducted from the damages awarded to them as dependants.

8 Gleneagles’ appeal was also in respect of one item only ie that the special damages should be reduced by $20,000 being a sum which the AR had allowed as part of the Plaintiffs’ costs in respect of a Coroner’s Inquiry (“CI”) into the cause of Philip’s death.

9 After hearing submissions, I dismissed the appeal of the Plaintiffs and allowed the appeals of the Anaesthetist and Gleneagles respectively.

The arguments and my reasons

Whether the award of damages to the Plaintiffs as dependants should have been increased

10 The Plaintiffs were represented by two counsel in the appeals before me. They were Mr Daniel John and Mr Marc Wang, both of whom advanced arguments as to why the damages awarded to the dependants should be increased, that is:

(a) the multiplicand should be increased,

(b) the multiplier should also be increased.

11 They also argued that the apportionment between Mr Tan and Mdm Yeo of whatever was awarded to the Plaintiffs should be varied from 40:60 respectively to 30:70 respectively.

The Multiplicand

12 On the multiplicand, the AR concluded that the annual salary of Philip would be calculated as follows:

(a) Philip’s last drawn salary x 12 (less 20% for CPF)

(b) Add one month’s salary (less 20% for CPF) as ex gratia bonus

(c) Add carpark allowance

(d) Add average dividends from Philip’s stocks and shares

(e) Add back 10% of CPF (from employee and employer). Since the CPF contributions from employee and employer are credited into Philip's account with the Central Provident Fund, I will refer to such contributions as "Philip's CPF".

The aggregate was about $66,390 per annum.

13 Plaintiffs’ Counsel submitted that the multiplicand should be increased for post-trial damages and on this point raised many arguments.

14 First, Plaintiffs’ Counsel submitted that account should be taken of the likelihood of an increase each year in Philip’s salary. Using past increases as a guide, as well as market surveys, Plaintiffs’ Counsel submitted that a median salary of $6,350 per month, instead of the last drawn salary of $5,850 per month, should have been used.

15 In Ho Yeow Kim v Lai Hai Kuen & Anor [1999] 2 SLR 246, the Court of Appeal relied on evidence from the Institute of Technical Education (“ITE”) to estimate the deceased’s future income. This evidence was in turn based on a survey. While Plaintiffs’ Counsel relied heavily on this case, I was of the view that there was one significant difference between that case and the one before me. There, the deceased was still a student in ITE and had undergone about three months of his course in ITE before he was killed. Therefore, he was not earning an income at the time of his death. In such a situation, it was understandable why a court should rely on a survey of income which he might have earned. In the present case, Philip was already earning an income with KPMG as a tax manager and Mrs Helen Chiang, a representative from KPMG had given evidence. In such a situation, I was of the view that market surveys were irrelevant.

16 While it was true that Philip had enjoyed some increases in the three years he had been with KPMG before he died, and while it would not be illogical per se to take into account future increases to derive a median salary which would be higher than the last drawn salary, I was mindful of the point that it is all too easy to assume that salaries would always increase. The past few years of financial turmoil have showed otherwise. Not only have salaries not increased, they have in many instances decreased and in some cases, jobs have been lost. To be fair, there was no evidence about a decrease in salaries for KPMG or a loss of jobs although bonus for 2002 had been reduced from two months to one month for an above average performer. However, on the other hand, Helen Chiang of KPMG was not inclined to be dogmatic about the likelihood of salary increases. She would say only that “the salary increment here is also very dependent on the economic situation and results of the firm” (NE 83).

17 In addition, I accepted the argument of Counsel for the Anaesthetist, Mr Deepak Raja, and for Gleneagles, Mr Christopher Chong, that an increase in salary did not necessarily mean an increase in the amount given to or spent on the Plaintiffs. In Ang Song Huay v Chu Yong Thiam (Suit No 196 of 1993), Chao Hick Tin J (as he then was) said that, “It would have been quite natural that if the deceased earned more he would contribute more”. With respect, I agree, but the dependants there were the wife and two children. The same would not necessarily apply to aged parents. It all depends on the particular circumstances of the case.

18 In the present case, Philip had worked for about eight years as a tax/audit assistant and then was promoted eventually to the post of manager with Ng Lee & Associates-DFK. On 19 May 1997, he joined KPMG as a Tax Supervisor and was then promoted to a Tax Manager. However, there was no real evidence that the amounts he had given to or spent on the Plaintiffs correspondingly increased, especially in the context of the last few years of his life. There was only a bare assertion by the Plaintiffs that as his income increased, his financial support would also have increased and a bare assertion about how his contributions to the Plaintiffs or for household expenses increased from $400 or $500 per month to $2,500 per month. Moreover, it was not as though the Plaintiffs were without any income. Mr Tan, the father, was drawing a pension of between $800 to $900 per month. In addition, apparently the eldest son Bernard was giving them $200 a month.

19 In view of the absence of a positive assertion by KPMG about salary increases and more concrete evidence from the Plaintiffs of an increase in what they were receiving from Philip over the years and bearing in mind that the burden of proof was on the Plaintiffs, I declined to adopt a median figure to calculate the multiplicand. I was of the view that the AR was correct in using Philip’s last drawn salary as the basis for such a calculation.

20 However, Plaintiffs’ Counsel sought to increase the multiplicand in other ways:

(a) By taking into account the value of alleged services provided by Philip for the Plaintiffs,

(b) By taking into account 50% of Philip’s savings in addition to 10% of Philip’s CPF which had already been allowed by the AR, and

(c) By taking into account Philip’s contributions to renovations of the terrace house he and the Plaintiffs were living in at 5 Libra Drive, Singapore.

21 On the question of Philip’s services, it was submitted that they amounted to $2,000 per annum for driving the Plaintiffs around especially on week-ends and $1,000 per annum as he had managed the house and handled the household finances including preparing tax returns, Mr Tan's CPF account, arranging for repairs and maintenance, re-financing loans to get the best interest rate, insurance policies and investments. On this point, Plaintiffs’ Counsel relied on, inter alia, Butterworths Personal...