Yap Chwee Khim v American Home Assurance Co and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 09 April 2001
• Neutral Citation: [2001] SGCA 22
• Docket Number: Civil Appeal No 108 of 2000
• Date: 09 April 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Edmond Pereira and Tan Yew Cheng (Edmond Pereira & Partners)
• Citation: [2001] SGCA 22
• Defendant Counsel: Lek Siang Pheng and Vivienne Lim (Helen Yeo & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether judge has power to investigate issues not raised in pleadings,Evidence,s 167 Evidence Act (Cap 97, 1997 Ed),Whether judge has power of interrogation and investigation,Pleadings,Principles,Functions of judge,Civil Procedure,Limits of power

(delivering the grounds of judgment of the court):

Introduction

On 2 June 1997, a 60-year-old Singaporean, Mr Lim Mah Chan (`the deceased`) was found dead in a bathtub of water in a hotel in Phnom Penh, Cambodia. He was then insured under eight insurance policies with six different insurance companies, with the proceeds payable to the appellant, Madam Yap Chwee Kim (`Madam Yap`). When Madam Yap attempted to claim the insured sums, only one insurance company paid her the sum insured under the policy. The other five insurance companies, the respondents in this appeal (`the respondents`), refused to make any payment to her under their respective policies. In consequence, Madam Yap brought an action against the respondents claiming under the respective policies. The sums insured under these seven policies amounted to a total sum of $827,000. Her case was that the insured peril under each policy had occurred, and the deceased had died by accidental drowning. She failed in her action at first instance before Tay Yong Kwang JC, and she appealed. We dismissed her appeal and now give our reasons.

The facts

At the time of his death, the deceased was on a five-day package tour to Phnom Penh. His travelling companion was Madam Yap`s ex-husband, Mr Lim Chok Young (`Mr Lim`). Madam Yap and Mr Lim were married in 1979, but in 1994 they divorced. However, they have since reconciled and intend to re-marry. They have a daughter, who is now 14 years old.

At the trial, Madam Yap and Mr Lim initially testified that they were all the family that the deceased had. They said that they had been living with the deceased and taking care of him for over ten years. Madam Yap said that she was the deceased`s goddaughter. Mr Lim said that the deceased was his father`s brother, and thus his uncle by blood. He told the court that he and the deceased were as close as father and son. However, in the course of the trial, it emerged from the evidence adduced by the respondents that the deceased was not related by blood to Mr Lim or Mr Lim`s father after all. This came to light when two real relatives of the deceased, who were alerted by the publicity of the case, came forward to testify on behalf of the respondents. They told the court that Mr Lim`s father was not the deceased`s brother, and Mr Lim was not the deceased`s real nephew. Thereafter, Mr Lim told the court that he had just discovered that the deceased was his father`s sworn brother.

Mr Lim gave the following account of the history between the deceased and himself. Before he and the deceased became close, he had met the deceased on a few occasions. One of those occasions was his father`s funeral, at which the deceased introduced himself to Mr Lim as an uncle. Subsequently, in the late 1980s, the deceased started visiting Mr Lim and Madam Yap at their flat in Hougang (`the Hougang flat`). Mr Lim learnt that the deceased was staying with friends, but was not happy. He invited the deceased to move in with his family.

Madam Yap`s evidence was that the deceased moved in with them sometime in the late 1980s. She had not objected to this arrangement, for she found the deceased to be a simple, understanding and quiet man. His only vice was smoking. She got on well with the deceased. She always assumed that the deceased was Mr Lim`s uncle. According to her, about seven or eight years ago (around 1992 or 1993), the deceased was advised by a Taoist deity to adopt a godchild and he asked her to become his goddaughter. She agreed, and a simple tea ceremony was held to solemnise the relationship. That was how she became his goddaughter.

According to Madam Yap and Mr Lim, their marriage subsequently deteriorated. In or around May 1994, Madam Yap petitioned for a divorce from Mr Lim on the ground that the marriage had irretrievably broken down. In her petition she alleged that Mr Lim had behaved in such a way that she could not reasonably be expected to live with him. The divorce was not contested and the decree nisi was granted in August 1994, which was subsequently made absolute.

Notwithstanding the divorce, Mr Lim and Madam Yap remained in close contact with each other. In the division of matrimonial property, Madam Yap`s share or interest in the Hougang flat was transferred to Mr Lim in consideration of his paying her all the moneys (together with interests) withdrawn from her account in the Central Provident Fund Board, for the purchase of the flat. She subsequently purchased a flat in Woodlands in her own name (`the Woodlands flat`) and moved there. Apparently, the couple did not live separately for long. They said that they had organised their living arrangements around the needs of their daughter. As for the deceased, he continued to stay with Mr Lim after the latter`s divorce from Madam Yap. Occasionally, he also stayed at Madam Yap`s Woodlands flat. In early 1996, Mr Lim sold the Hougang flat and purchased a flat in Yishun (`the Yishun flat`).

In January 1996, a life policy for $7,000 and a personal accident policy for $20,000 were bought for the deceased from the second respondent. The premium for these policies were paid by Mr Lim. The particulars of the two insurance policies are as follows:

Second respondent	Personal accident	22 January 1996, renewed on 27 December 1996	$39/annum	$20,000
Second respondent	Life	25 January 1996	$121.35/every three months	$7,000

Insurance company Type of policy/relevant coverage Date of issue Premium Assured sum In late 1996, Mr Lim helped the deceased to purchase a flat at Petir Road (`the Petir Road flat`) in the latter`s sole name. The deposit for the flat was paid by Mr Lim. After the purchase, one of the bedrooms of the flat was rented out, and the deceased used the other one. But he would still stay with either Mr Lim or Madam Yap every now and then.

In November 1996, Mr Lim and Madam Yap converted to Christianity and were baptized at St Andrew`s Cathedral. After attending instruction and counselling classes together at the Cathedral, their relationship improved vastly. Around that time, Mr Lim moved into Madam Yap`s flat in Woodlands and stayed with her and their daughter. They were almost reconciled and lived as husband and wife.

On 22 February 1997, a will was made by the deceased by which he bequeathed all his assets to Madam Yap. Mr Lim brought the deceased to a lawyer`s office to have the will made.

Thereafter, Mr Lim and the deceased started to make frequent trips together. According to Mr Lim, these trips came about after the deceased won several thousand dollars in the lottery. He was jobless at that time and kept asking Mr Lim to go on trips with him. At that time, Mr Lim was a container truck driver for the Ministry of Environment, earning a monthly salary of $1,600. He was able to travel frequently with the deceased as he had accumulated his `time-offs` and had medical and annual leave entitlements. Between February 1997 and May 1997, the two of them made three trips together, namely to Malaysia, Thailand and Indonesia respectively. Madam Yap and her daughter did not go on any of those trips.

On 21 April 1997, Mr Lim and the deceased booked a five-day packaged tour to Phnom Penh covering the period from 30 May 1997 to 3 June 1997. The cost of the trip was $588 per person, with an initial deposit of $200 each. Having booked the trip, Mr Lim said that they began to worry about the unstable social and political situation in Cambodia, as well as the danger of landmines. At one point, they contemplated cancelling the trip. In the end, they decided not to do so as they did not want to lose their deposits. Instead, they went out and bought extensive insurance coverage for the trip.

The insurance policies

The tour was booked on 21 April 1997, and the departure date was 30 May 1997. Between these two dates, the deceased, with Mr Lim`s help, bought six travel and personal accident insurance policies covering himself for, inter alia, death and personal injury resulting from accidental causes. The particulars of these six travel and personal accident policies are as follows:

First Respondent	Travel/death and personal injury from accident	21 April 1997	$79	$200,000
Second Respondent	Travel/death and personal injury from accident or violent causes	27 May 1997	$60	$200,000
Third Respondent	Travel/death and personal injury from accident	27 May 1997	$35	$100,000
Fourth Respondent	Travel/death and personal injury from accident	15 May 1997	$65	$200,000
Fifth Respondent	Travel/death and personal injury from accident	23 May 1997	$36	$100,000
Great Eastern Life Assurance Co Ltd (not a party)	Travel/death and personal injury from accident or violent causes	20 May 1997	$10.82/month	$100,000

Insurance company Type of policy/relevant coverage Date of issue Premium Assured sum The total amount of premiums for these six policies came to $285.82. He was already covered by two other policies, which had been taken out earlier in 1996. In total, he was covered by eight insurance policies and the assured sums under all these policies came to a total of $927,000.

In addition to these policies, he also applied for three other travel policies from another insurance company, namely, American International Assurance Co Ltd (`AIA`), and paid a total of $764.32 as premium or deposit. These three applications were still pending at the time of his death, and were rejected by AIA on 10 June 1997. The particulars of these three policies, if approved and issued by AIA, would be as follows:

AIA (not a party)	Personal accident and health	26 May 1997	$60.15/semi-annually	$5,000
AIA	Personal accident and health	26 May 1997	$60.15/semi-annually	$5,000
AIA (not a party)	Personal accident and health	26 May 1997	$644.02/semi-annually

...