TWD and another v UQE

• Jurisdiction: Singapore
• Judge: Tan Puay Boon JC
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] SGHCF 21
• Plaintiff Counsel: Viviene Kaur Sandhu and Gabriel Choo (Clifford Law LLP)
• Date: 21 December 2018
• Docket Number: Originating Summons (Family) No 46 of 2016 (Registrar’s Appeal No 13 of 2017)
• Hearing Date: 12 July 2018,08 November 2018
• Subject Matter: Procedure,Family Law
• Published date: 29 December 2018
• Defendant Counsel: Anthony Wee and Manoj Belani (United Legal Alliance LLC),Chia Huai Yuan (Dentons Rodyk & Davidson LLP) as young amicus curiae.
• Court: High Court (Singapore)
• Citation: [2018] SGHCF 21
• Year: 2018

Tan Puay Boon JC:

A person is injured in an accident. Members of his family apply to be appointed as his deputies, on the basis that he lacks capacity in relation to certain matters. The person who is alleged to be liable in tort for causing the accident applies to be joined as a party to the deputy application, in order to adduce evidence on the victim’s capacity. Should the court join the alleged tortfeasor as a party to the deputy application? That is the issue in this appeal.

Facts The parties and the Accident

The appellants are respectively the mother and sister of the person who was alleged to lack capacity in this matter (“P”).¹ P is a male Singaporean who is presently 27 years old.²

The respondent was the driver of a car that collided into P, who was a pedestrian at the material time, in an accident on 3 April 2015.³ At the time of the accident, P was a 23-year-old polytechnic student.⁴ As a result of the accident, P suffered multiple injuries including severe traumatic brain injury.⁵

The Deputy and Joinder Applications

On 2 March 2016, the appellants filed an application in the Family Courts under s 20 of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA”) to be appointed as deputies for P to make decisions on his behalf relating to his personal welfare and property and affairs (“the Deputy Application”).⁶

The Deputy Application was supported by an affidavit of one Dr Chan Lai Gwen (“Dr Chan”), a Consultant in the Department of Psychological Medicine in Tan Tock Seng Hospital,⁷ which enclosed a medical report dated 2 December 2015 (“Dr Chan’s 1st Report”) based on Dr Chan’s examination of P on 20 November 2015.⁸ In the report, Dr Chan stated the following:⁹ P was diagnosed to have “[c]ognitive impairment due to severe Traumatic Brain Injury”. P did not have mental capacity in relation to his personal welfare and property and affairs. However, P was “still recovering neurologically and [was] expected to improve further over the next [two] years”. Further, P was “likely to regain mental capacity”.

By a letter dated 18 March 2016, the respondent’s solicitors (who are also the solicitors for the respondent’s insurers) stated that their clients were an interested party in the Deputy Application and that they would attend a hearing of the same fixed for 22 March 2016.¹⁰

On 22 March 2016, the parties attended a Case Conference for the Deputy Application, where the respondent’s solicitors stated that the respondent intended to apply to be joined as a party to the Deputy Application.¹¹

By a letter dated 22 March 2016, the appellants’ solicitors informed the respondent’s solicitors that they disagreed that the respondent and his insurer were interested parties in the Deputy Application, unless they conceded liability. Nonetheless, for the purposes of resolving the issue of P’s capacity, the appellants’ solicitors were “prepared to take the Court’s suggestion and advise [P] to attend a medical re-examination conducted by [the respondent’s] expert to determine whether [P] lacks mental capacity”.¹²

In reply, the respondent’s solicitors reiterated in a letter dated 25 March 2016 that their clients were interested parties in the Deputy Application. They added they were prepared to arrange for P to be re-examined by their clients’ doctors, but that an application for the respondent to be joined as a party to the Deputy Application was “unavoidable” since “either party [would] be instructed to challenge the outcome of the medical re-examination irrespective of the results”.¹³

On 25 April 2016, the respondent applied to be joined as a party to and be heard in the Deputy Application (“the Joinder Application”).¹⁴ In an affidavit supporting the Joinder Application, his then solicitor stated the following:¹⁵ There was evidence from surveillance carried out on P that raised issues regarding the extent of his incapacity. In this regard, the affidavit enclosed a report dated 27 October 2015 (“the 1st PI Report”) by AJAX Investigation & Security Services Pte Ltd (“AJAX”) detailing surveillance carried out on P from September to October 2015,¹⁶ which was carried out on the instructions of the respondent’s insurers.¹⁷ According to the report, P was able to ambulate without aid, had a good range of movement in respect of his neck, could bend his back and sit without difficulty and could climb and descend stairs with assistance. He was also observed to have been carrying out daily activities accompanied by his family members.¹⁸ If the respondent was not joined as a party to the Deputy Application, he would not be able to adduce evidence that might assist the court in “clarifying the issue of P’s mental incapacity”. In those circumstances, if the court granted the Deputy Application, the respondent would be prejudiced in any subsequent legal action by P or his deputies against him (because the fact that deputies were appointed for P would be evidence of the severity of the injuries suffered by him). If the respondent was joined as a party, he had no objections to his involvement being limited to the issue of P’s mental incapacity.

The second appellant filed an affidavit dated 13 May 2016 in reply to the Joinder Application. In brief, she averred that there was no basis for the respondent to be joined to the Deputy Application and stated the following:¹⁹ Granting the Deputy Application would not prejudice the respondent or his insurers because they would be able to contest the issue of P’s capacity in the civil suit which P intended to commence against the respondent (“the Civil Suit”). Granting the Joinder Application would only increase the costs and delay in relation to the Deputy Application. The 1st PI Report, which was not a medical report, did not raise any issues in relation to P’s mental capacity.

The second appellant’s affidavit exhibited a Financial Counselling Form dated 14 April 2016 (“the Form”) that was signed by P in the presence of his father, to acknowledge that he “[had] undergone financial counselling … and irrevocably agree[d] and under[took] to pay in full the final hospital charges”.²⁰

Procedural history and subsequent events

On 31 May 2016, the District Judge (‘the DJ”) heard the parties on the Joinder Application. The next day, he informed the parties that he would defer his decision on the Joinder Application for four weeks. In the interim, the appellants were to obtain a clarification medical report on P’s capacity, while the respondent was to obtain a separate report on P’s capacity.²¹

On 7 June 2016, the appellants’ solicitors wrote to the court to request further arguments on the DJ’s direction to the respondent to obtain a medical report on P’s capacity. They submitted that the court had effected a “backdoor joinder” in making this direction. The DJ had no jurisdiction to direct P to be examined by a non-party to the proceedings. Instead, the court should first decide whether the respondent should be joined to the Deputy Application. It was only if the respondent was made a party to the Deputy Application that he could then apply for a further medical examination of P. If the court had doubts regarding P’s capacity, it should “direct the necessary questions to P’s doctor(s) and/or appoint a Court expert to assess P’s mental capacity”.²²

From 15 to 23 June 2016, AJAX conducted further surveillance on P on the instructions of the respondent’s insurer,²³ and prepared a further report dated 10 July 2016 (“the 2nd PI Report”). I note the following regarding this report: First, the report contained “video recording printouts” of P in his home.²⁴ Second, the report stated that the investigators had engaged P in a conversation on the pretext of carrying out a “survey” and recorded this conversation. They had gleaned from the conversation that P could recall details regarding his primary school and polytechnic. P had also suggested enhancements to the neighbourhood.²⁵ Third, according to the report, P had commuted on his own by public transport and ascended and descended stairs without difficulty.²⁶

The respondent’s solicitors subsequently applied for the 2nd PI Report to be placed before the court.²⁷

Dr Chan prepared a clarification medical report on P dated 8 July 2016. In this report, Dr Chan stated the following:²⁸ She had reassessed P on 5 July 2016 in an outpatient clinic and interviewed his parents and sister individually. Despite “good recovery of physical abilities”, P continued to suffer from “significant impairments of his behaviour, personality and cognitive functioning”. These impairments were only apparent upon regular interaction with him – they “would not be apparent on distant observation or snapshots taken at a cross-section in time”. They included “poor recall of information, poor recall and understanding of his own medical condition, poor mental arithmetic ability, poor knowledge and understanding of financial management, and lack of insight into his current impairments”. P was also vulnerable to abuse and exploitation: he had authorised transactions of a three-digit sum on two occasions, and could not recall the details of these transactions. Dr Chan reiterated her opinion that P lacked capacity in relation to his personal welfare and his property and affairs.

On 18 July 2016, the DJ heard further arguments (see [14] above) on his earlier directions. He then varied his directions, ordering as follows:²⁹ P was to be examined by an independent doctor appointed by the court (rather than by a doctor appointed by the respondent). Counsel for the appellants and the respondent were to propose doctors whom the court might appoint as an independent expert. The court-appointed doctor was to be given a copy of both the 1st and the 2nd PI Reports (“the PI Reports”) (the appellants had submitted that the 2nd PI Report should not be given to the doctor). The appellants would be...