Zhu Xiu Chun v Rockwills Trustee Ltd

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Chao Hick Tin JA,Andrew Phang Boon Leong JA
• Judgment Date: 01 September 2016
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals Nos 127, 131 and 132 of 2015 and Summons No 318 of 2015
• Date: 01 September 2016

Zhu Xiu Chun (alias Myint Myint Kyi)

and

Rockwills Trustee Ltd (administrators of the estate of and on behalf of the dependants of Heng Ang Tee Franklin, deceased) and other appeals

[2016] SGCA 52

Sundaresh Menon CJ, Chao Hick Tin JA and Andrew Phang Boon Leong JA

Civil Appeals Nos 127, 131 and 132 of 2015 and Summons No 318 of 2015

Court of Appeal

Damages — Measure of damages — Personal injuries cases — Negligently conducted liposuction surgery leading to death — Appropriate methodology for computing loss of inheritance

Damages — Measure of damages — Personal injuries cases — Negligently conducted liposuction surgery leading to death — Whether coroner's inquiry fees claimable

Facts

Civil Appeals Nos 127, 131 and 132 of 2015 arose out of a negligently conducted liposuction surgery which resulted in the demise of one Heng Ang Tee, Franklin (‘the Deceased’) at the age of 44 years. The administrator of the Deceased's estate (‘the Administrator’) commenced proceedings for damages against the doctors and the clinic responsible for the debacle. The Administrator acted on behalf of the estate of the Deceased as well as the Deceased's dependants, who comprised the Deceased's mother, his former wife (‘Ms Quek’) and his two children, Jo-Ann and Ryan (‘the Children’).

In the proceedings below, the two doctors who were involved in the surgery, Dr Zhu Xiu Chun (alias Myint Myint Kyi) (‘Dr Zhu’) and Dr Wong Meng Hang (‘Dr Wong’), admitted liability for negligence whereas interlocutory judgment was entered against Reves Clinic Pte Ltd in default of appearance. The High Court judge (‘the Judge’) awarded a total sum of $5,260,653.58 to the Deceased's estate and dependants. Of relevance in the appeals were the following heads of damages which were awarded by the Judge: (a) $190,513.05 for the Coroner's inquiry fees; (b) $302,400 for Ms Quek's dependency claim; (c) a total of $814,500 for the Children's dependency claims; and (d) a total of $3,883,005 for the Children's loss of inheritance claims.

Dissatisfied with the awards rendered, the Administrator, Dr Zhu and Dr Wong each commenced appeals against the Judge's decision. As part of its appeal, the Administrator also filed Summons No 318 of 2015 (‘SUM 318/2015’) to adduce further evidence which pertained to the published fee schedules of (a) three driving schools for driving lessons in Singapore; (b) various undergraduate degree programmes at three local universities; and (c) residential colleges and/or hostels/halls or residences of the National University of Singapore and the Nanyang Technological University.

Held, dismissing SUM 318/2015 and allowing CA 127/2015, CA 131/2015 and CA 132/2015 in part:

(1) For further evidence to be adduced at the appellate stage pursuant to s 37(4) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) and O 57 r 13(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), there had to be ‘special grounds’ which justified the introduction of such evidence. To establish that special grounds existed, the applicant had to satisfy the three conditions laid down in Ladd v MarshallWLR[1954] 1 WLR 1489 and the conditions had to be applied strictly. As there was no change which substantially affected a basic assumption made at trial, there was no reason to justify the relaxation of the Ladd v MarshallENR conditions: at [54], [58] and [60].

(2) The Administrator was denied leave to adduce the further evidence as the first Ladd v Marshall condition was not satisfied; the evidence could have been adduced at trial with reasonable diligence. There were no exceptional circumstances or improprieties in the nature of fraud for the court to overlook the Administrator's failure to satisfy the first Ladd v MarshallENR condition: at [61] and [66].

(3) The Administrator was entitled to claim for the coroner's inquiry fees so long as they were proven to be reasonably incurred: at [78].

(4) As a general proposition, it would be in line with reason and logic that the longer the dependency period the higher should be the rate of discount. This was because, where the dependency period was longer, there would be greater uncertainties as far as vicissitudes of life were concerned. However, a longer dependency period would not always result in a higher discount rate; each case had to be determined on its unique circumstances. Parties should not merely rely on the multipliers set out in previous cases but should also seek to assist the court further by providing relevant actuarial data to justify the discounts which they were advocating for. In the present case, the discount rate of 40% applied by the Judge for Ms Quek's dependency claim was not one which deviated significantly, if at all, from the general trend of discounts which courts had applied in previous cases. Accordingly, the multiplier of 12.6 years applied by the Judge was not so excessive as to warrant appellate intervention: at [85] to [87].

(5) When dealing with any dependency claim, including the claim of a ‘former wife’, the principle of a ‘reasonable expectation of pecuniary benefit’ was fundamental to the inquiry (as it was in any other dependency claim). The focus was not placed on the need, but on the reasonable expectation of the dependant. At the time the maintenance order was agreed upon, Ms Quek was already generating an income of approximately US$10,000 a month. This showed that the Deceased, being an individual of significant earning power, was content to pay a maintenance sum of $9,000 a month despite Ms Quek's ability to earn a substantial income of her own and despite the fact that Ms Quek was given a share of the properties under the divorce proceedings which amounted to about $500,000. Therefore, Ms Quek had a reasonable expectation of receiving this maintenance sum for the rest of the Deceased's working life: at [91]

(6) With respect to Ryan's dependency claim, prior to his demise, the Deceased was already providing a sum of $3,500 a month as maintenance to meet each child's expenses. This sum was agreed upon, notwithstanding that Ms Quek had an earning capacity of her own. Therefore, Ryan could reasonably expect to continue receiving the sum of $3,500 to meet his expenses up till the end of his tertiary education. The earning capacity of Ms Quek should not affect this conclusion: at [96] and [98].

(7) With respect to the Children's claim for the costs of vacation and similar expenses (which would include the costs of gifts, computers and school trips), it would suffice to show that there was some basis of fact from which the inference could be drawn that there was a reasonable expectation of pecuniary benefit. On the present facts, an inference could be drawn from the evidence that the Deceased would have catered for such expenses. The same could also be said of the driving lesson fees of the Children: at [102] and [106].

(8) As for the university fees of the Children, the increase in $500 per month which the Judge awarded to reflect the higher fees in a university education appeared to be insufficient. Given the Deceased's commitment to taking care of the Children, the court had no reason to doubt that he would have made provision for the Children's increased expenses and that they could reasonably expect to receive such a benefit. Accordingly, an additional increase of $500 a month was awarded to the Children during their university years: at [107] and [108].

(9) The conventional multiplier-multiplicand approach was relevant in quantifying a loss of inheritance claim. The court had reservations that there should be an additional step where compound interest from the savings during the multiplier period would be factored in. While an assessment of damages was necessarily an exercise which involved an element of prediction and often required the courts to grapple with various imponderables, to factor in the potential returns that a deceased could generate if he decided to invest his notional annual savings would be delving a step too far into the realm of speculation. Even if the assumption could be made that a deceased would invest his notional annual savings, factoring in compound interest assumed further that he would generate a steady rate of returns on this investment. Factoring in compound interest would add a further layer of uncertainty to what was already an imprecise methodology and the court was not prepared do so: at [115], [119] and [121].

(10) While the general methodology for computing a loss of inheritance claim was similar to the computation of a loss of dependency claim, there was an additional factor which had to be taken into account and which was unique to a loss of inheritance claim – the post-retirement expenditure of the deceased. To summarise, when computing a loss of inheritance claim, the following three steps should be applied: (a) first, an appropriate multiplicand should be derived which would reflect the savings of the deceased per annum; (b) second, this multiplicand should be multiplied by an appropriate multiplier which would be discounted for accelerated receipt and vicissitudes of life, along with an adjustment to reflect the post-retirement expenses of the deceased; and (c) third, an appropriate percentage of this inheritance should be attributed to the dependant: at [123] and [125].

(11) The Judge had erred in applying the same 40% discount as he did for Ms Quek's dependency claim to the Children's loss of inheritance claim. This was so for several reasons. First, the discount that was applied to a dependency claim was based on both uncertainties in the future (due to vicissitudes of life) and accelerated receipt of a lump sum payment. While the uncertainty with respect to the Deceased's ability to earn the same income during his working years (ie, up to the age of 65 years old) was similar for both Ms Quek's dependency claim and the Children's loss of inheritance claim, the accelerated receipt component was not the same. By applying...