As a result of a car accident involving the respondent and the appellant, the respondent suffered injuries, property damage and consequential loss and expense. The respondent, through her solicitors, claimed against the appellant for property damage and loss of use. A settlement for the respondent’s claim was reached with the appellant’s insurers with no mention of the respondent’s injuries. The respondent’s solicitors also returned the appellant’s insurers’ standard Discharge Voucher (“DV”) duly signed by a workshop employee on behalf of the respondent. The DV stated, inter alia, that the payment was “in full and final settlement of all claims we/I have or may have” in respect of the accident and that it constituted a full discharge on those terms.

The respondent subsequently brought an action against the appellant and the appellant’s insurers for her personal injury claims. The appellant’s insurers, represented by Anthony and Waltan, contested the claim on the basis that the DV had compromised the respondent’s personal injury claim. The respondent and her lawyers contended that the DV only referred to the workshop claim and could not include a discharge for the personal injury claim.

The district judge agreed with the respondent’s lawyers and ruled that the DV was simply a receipt. The settlement was limited to property damage claims as there was no mention of the respondent’s personal injuries in the correspondence in relation to the settlement.
The appellant’s insurers appealed. Anthony and Waltan submitted that the DV discharged the appellant and the appellant’s insurers from all claims which the respondent had or may have had.

The decision
The court allowed the appeal for the following reasons:-

(a) A DV is not merely an acknowledgement of the receipt of a sum of money. The DV in this case set out clearly and unambiguously that the payment was a full and final settlement of and full discharge from all claims that the respondent had or may have had from the appellant and the appellant’s insurers. This referred to existing claims and claims that might arise in the future. The fact that the correspondence between the respondent’s lawyers and the appellant’s insurers only mentioned property damage and loss of use was not enough to displace the clear meaning of the words “all claims we/I have or may have in respect of the incident” in the DV.

(b) The practice of obtaining DVs recording full and final settlement and obtaining a full discharge and indemnity has been around for at least half a century. The longstanding use of such words in settlement agreements have acquired a settled meaning over the years as they have been endorsed by the courts. Indeed, during the trial, Anthony and Waltan established that the respondent’s solicitors’ regular practice was to have their clients sign DVs and to reserve the rights of their clients with respect to personal injury claims if such claims were to be made. The respondent’s lawyers had slipped up in reserving the respondent’s personal injury claims. This compromised the respondent’s right to make the same.

(c) Additionally, it was also established during the trial that signing a DV on such terms was accepted by the respondent’s solicitors as a “market practice”. There thus could not be a claim for rectification.

Chua Ah Beng (“Chua”) was employed by C&P Holding Pte Ltd (“C&P”), as a Kalmar crane operator. On 17 March 2000, Chua was checking the hydraulic oil pipes of the crane when he lost his balance and fell from the elevated platform of the crane, about 1.76m high. He was sent to hospital where it was confirmed that he had fractured C5 and C6 of his spinal cord. As a result of the injuries, he suffered from impaired sensation below the C5 level and has no control over his bowels.

Chua lodged a claim under the Workmen’s Compensation Act (“WCA”). On 7 July 2000, the Commissioner for Labour (“Commissioner”) assessed compensation under the WCA at $139,650.00 (based on 95% permanent incapacity).

Chua lodged an objection against the Commissioner’s assessment and commenced common law proceedings seeking damages totalling $900,000.00 plus interest and costs.

His common law claim was dismissed by the High Court and Court of Appeal. He then reverted to the Commissioner for Labour for compensation under the WCA. The Commissioner for Labour refused to assess the claim as it was made more than 1 year after the accident and the newly lodged claim was therefore time-barred.

The matter went up before the High Court and Judicial Commissioner Tay Yong Kwang (as he then was) directed the Commissioner for Labour to exercise his discretion under section 11(4) of the WCA.

The Commissioner for Labour exercised his discretion in favour of the Chua as he felt that there was reasonable cause for the delay in lodging the fresh claim since Chua had commenced the common law claim within 1 year of the accident but was unsuccessful in the common law claim. He then assessed the compensation at $139,650.00.

The Respondent (Plaintiff) was an Australian national who was in Singapore on vacation. On 6 December 2003, the Appellant (Defendant) lost control of his car and collided with a number of people, including the Respondent who was waiting at the pavement to cross the road. The Respondent sustained serious injury from the accident, including a fracture at the base of her skull which led to traumatic brain injury. As a result, the Respondent suffered muscular weakness on the right side of her body, weakness in her tongue and throat muscles, vocal cord paralysis, amnesia, and cognitive impairments. Liability was conceded in full by the Appellant, leaving damages to be assessed. Prior to the accident, the Respondent was employed as a full-time physiotherapist at a hospital in Adelaide, and also a self-employed physiotherapist contracted to another health care provider. Following the accident, and while on medical leave, the Respondent performed some data entry and analysis work for a few months towards the end of 2004, and pursued a full-time bachelor of health science degree course at the University of South Australia. In March 2006, following the completion of her degree course and the expiry of her medical leave, the Respondent returned to work at her former workplace in the hospital on a part-time basis where she only performed light duties. On 2 January 2007, the Respondent returned to full-time work at the hospital. Subsequently, she found that she was not able to perform her duties as well as she could before the accident, and also found that her work was too painful and exhausting to cope with. As a result, on 4 February 2007, the Respondent resigned from her full-time work at the hospital. From 5 February 2007 onwards, the Respondent joined a private outpatient physiotherapy practice. There, she initially worked on a casual basis for up to five hours a day for three days a week. Over time, she increased her working hours and was also paid a higher rate per hour of work. On 25 June 2007, the Respondent rejoined the hospital on a part-time basis. At the time of the assessment of damages proceedings, the Respondent held two part-time jobs. At first instance, the Assistant Registrar awarded the Respondent, amongst other things, the following:
(a) S$135,000 for pain, suffering and loss of amenities;
(b) A$209,078.66 for pre-trial loss of earnings;
(c) A$305,195.04 for loss of future earnings; and
(d) A$15,000 for loss of earning capacity;

On appeal, the High Court judge, inter alia, reduced the quantum awarded for pre-trial loss of earnings to A$202,061.08, increased the amount awarded for pain, suffering and loss of amenities to $200,000, and increased the quantum awarded for loss of earning capacity to A$50,000. The main issues raised before the Court of Appeal included:
(a)     whether the quantum awarded for pain, suffering and loss of amenities arising from the Respondent’s head injuries was excessive;
(b)     whether the quantum awarded for loss of future earnings was correct in law; and
(c)     whether the quantum awarded for loss of earning capacity was excessive, when loss of future earnings was also awarded.

(1) The lack of evidence to substantiate a claim for loss of future earnings cannot, by itself, convert a claim for loss of future earnings into a claim for loss of earning capacity. If a plaintiff should fail to provide sufficient evidence of loss of future earnings, his or her claim for loss of future earnings cannot succeed.
The two heads of damages were meant to compensate for different losses. Accordingly, there was no basis for the court to only award a nominal sum for loss of earning capacity when a substantial award had been made for loss of future earnings if it could not be shown that there was any overlapping compensatory factor between the two heads of damages. It was a matter of evidence which would determine whether the court should, upon refusing to grant an award based on loss of future earnings, additionally grant an award based on loss of earning capacity.

(2) The Respondent’s loss of future earnings arose from the difference between her post-accident earnings and the earnings she would have made at the time of the assessment of damages proceedings, but for the accident. Because the Respondent was paid at an hourly rate, her income was adversely affected by the decreased number of hours she could work as a result of the accident. Whether a court should simply compare the absolute figures of what a victim earned pre-accident and post-accident depended on the facts of the case. On the facts of this case, it was inequitable to make such a comparison.

(3) Loss of earning capacity can only be awarded if there is a substantial or real risk that the plaintiff could lose his or her present job at some time before the estimated end of his or her working life and that the plaintiff will, because of the injuries, be at a disadvantage in the open employment market. It is a cumulative test. In this case, a conservative amount should have been awarded for the Respondent’s loss of earning capacity since there was an appreciably lower risk that she would be unable to get another job. There was no justifiable basis for the Judge to increase the amount awarded.

(4) There was no real basis for the Judge to increase the amount awarded for pain, suffering and loss of amenities pertaining to the Respondent’s head injuries. Although the Judge appeared to have increased the award to reflect the seriousness of the injuries suffered by the Respondent, insufficient consideration was given to the significant recovery made by her.

The Court of Appeal observed that there was nothing in principle which barred a plaintiff from being entitled to claim for both loss of future earnings and loss of earning capacity, provided that the necessary evidence was present.

The respondent (plaintiff) Menjit Singh (“Mr. Singh”) who was a teacher and Head of Humanities Department claimed that he suffered a whiplash injury as a result of a minor road traffic accident in a HDB car-park. Mr. Singh claimed that he was so physically disabled by the accident that he could no longer work as a teacher. Mr. Singh did not return to work after the accident and was eventually medically boarded out of service with the Ministry of Education. The Assistant Registrar of the High Court (“AR”) found that Mr Singh could in all likelihood have continued his work as a teacher, with perhaps some adjustments to his work environment. In spite of her finding, she upheld Mr Singh’s claim for damages for loss of pre-trial and future earnings, which formed the bulk of the damages of well in excess of $1m claimed by Mr Singh. The appellant (defendant) Mdm. Ong (“Mdm Ong”) appealed against the AR’s decision on the alleged loss of pre-trial and future earnings of Mr Singh as a teacher. Mdm Ong contended that Mr Singh should not have been awarded damages for loss of pre-trial and future earnings as he could have continued to work as a teacher if he had wanted to. This appeal depended on whether the alleged residual disabilities, pain and discomfort. Mr Singh complained of prevented him from continuing to work as a teacher or Head of Department.

Main Issue
(i) Whether or not Mr Singh’s alleged residual disabilities, pain and discomfort prevented him from working as a teacher or Head of Department? In other words, was Mr Singh entitled to damages for loss of pre-trial and future earnings as a result of his whiplash injury?

The law
The general rule is that the plaintiff has to prove the damage he claims to have suffered as a result of the defendant’s actions and the “but-for” test is applicable. In Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782, VK Rajah JA explained that one should, in order to determine whether an act or omission was a cause of the loss, eliminate the act or omission mentally and consider whether or not the loss would still have occurred. If the loss would not have occurred, the act or omission is a condicio sine qua non for the loss. If the loss would still have occurred, then, the loss has not been caused by this act or omission. However, if the loss would not have occurred but for the defendant’s act or omission, it merely qualifies the act or omission as a possible or sufficient cause of the loss. It must then pass an additional test of remoteness. Where the “but for” test does not produce a just result, other approaches are available. Sunny Metal concerns the burden of proof. The court may also adopt a commonsensical approach to causation. Another approach relates to a loss of chance, which requires the causal link to be viewed on the basis of proportionate loss and the plaintiff’s damage is “effectively re-categorised as the chance of obtaining a benefit or avoiding a loss, rather than the loss itself.”

The High Court was of the view that the speed in which the defendant’s vehicle reversed at about 15 to 20 km/h could have caused Mr Singh to suffer some injury apart from whiplash. While Mr. Singh cited 23 symptoms from his alleged whiplash injury, the High Court found him to be prone to exaggeration. Even Mr Singh’s treating doctor contradicted his testimony. The High Court found that there was a lack of objective medical tests applied by Mr Singh’s doctors.  In summing up the entire evidence, the High Court stated the following:  “A victim who suffers from chronic whiplash injury after a motor accident should be awarded an appropriate amount of damages for the injury. However, as chronic whiplash injury can be easily faked, there must be adequate proof of such an injury. Where possible, objective medical tests must be conducted by the doctor to test the veracity of an accident victim’s complaint of chronic whiplash injury. A doctor should not rely primarily on what an accident victim claims are his symptoms of chronic whiplash injury to form an opinion that the victim can no longer work otherwise, the door will be open to anyone involved in a minor accident to mount frivolous claims for damages for such injury, and especially so when many people whom have not been involved in road accidents also suffer from neck and shoulder pain, which are two of Mr. Singh’s main complaints. If caution is not exercised, the general public will have to bear the burden of higher premiums on their motor policies”.

The High Court held that since it was not established that Mr Singh could no longer work as a teacher or Head of Department as a result of the accident, the award of damages for loss of earnings and loss of pre-trial and future earnings is set aside”.

The Plaintiff, having suffered work injuries on 8 November 2008, filed a claim under the Workmen’s Injury and Compensation Act (the “Act”). A Notice of Assessment (“NOA”) of compensation amounting to $19,800 was issued on 1 Feb 2010. The Plaintiff did not immediately object to the NOA but instead proceeded to instruct solicitors to initiate proceedings at common law.
By S 33(2)(a) of the Act, the Plaintiff had the right to withdraw the claim under the Act within 28 days from the receipt of the NOA, which was by 1 March 2010. The Plaintiff however, only notified the Commissioner of the withdrawal of his claim under the Act on 16 March 2011, well after the 28-day limit had expired.

The Defendant therefore filed an application to strike out the Plaintiff’s action based on O18 r19 of the Rules of Court. The Defendant’s position was that the Act has laid down clearly in s 33(2(a) that the claimant under the Act cannot maintain an action in court if he ‘does not withdraw his claim within a period of 28 days after the service of the notice of assessment of compensation in respect of that claim’. Since the Plaintiff had already made a claim for his injuries under the Act, he was therefore debarred from maintaining an action at common law for the same injuries.

The Plaintiff, by maintaining the action at common law, took the position that he was nevertheless entitled to withdraw his claim under the Act and opt to institute an action for damages in court, because there has been no Order made by the Commissioner in respect of Compensation at the time he notified the Commissioner of his withdrawal of the claim on 16 Mar 2011.
The Defendant’s application was dismissed by the Deputy Registrar. The Defendant appealed the decision.

The literal meaning of S 33(2)(a) is to be preferred as it promotes the intention of Parliament to provide a timeframe within which a claimant under the Act must opt to either maintain his claim under the Act or in court. Accordingly, the Act made it clear that an injured workman cannot maintain a common law claim if he did not withdraw his claim within 28 days under the Act after the service of a NOA of compensation.

Therefore, permitting the Plaintiff to go forward with the action would be an abuse of the court’s processes. The action was struck out under O18 r19 of the Rules of Court and under the inherent jurisdiction of the Court.

In a road accident that occurred on 14th December 2009, the plaintiff was a pillion rider on a motorcycle ridden by the 1st defendant who was the motorcyclist. The 1st defendant was travelling straight along International Road and stated that the traffic lights turned green in his favour as he approached the junction of Jalan Boon Lay. The 2nd defendant driving a motorcar was travelling along International Road from the opposite direction and was making a right turn at the junction leading to Jalan Boon Lay. According to the 2nd defendant, he claimed that the right turn arrow was showing green in his favour at that time and as a result both vehicles collided in the junction. The 2nd defendant was charged by the Traffic Police for inconsiderate driving and he paid a composition fine. As a result of the accident, the 1st defendant filed a claim against the 2nd defendant in District Court Suit No 3018 of 2010. The 1st defendant claim proceeded for Court Dispute Resolution at the Subordinate Court. An indication of liability was made by the settlement judge in the proportion of 80% liability against the 2nd defendant. The 1st defendant however compromised his claim at 60% and consented to interlocutory judgment as against the driver and for damages to be assessed. Subsequently, in the ongoing suit between the plaintiff and the 1st and 2nd defendant, the plaintiff claimed for injuries sustained from the same accident as a pillion rider. The issue before the High Court was whether the consent judgment in respect of liability recorded between the 1st defendant (who was the plaintiff in the earlier suit) and the 2nd defendant at the Subordinate Court is res judicata in the current action by the plaintiff against the 1st and 2nd defendant as a result of the same accident. The 2nd defendant’s stand was since there is a consent interlocutory judgment in the previous suit between the 1st defendant in respect of liability, the issue of liability for the plaintiff is res judicata. The plaintiff was of the opposing view that res judicata does not apply in the present action.

The High Court (after considering all the facts and the legal position) held that res judicata applies in the current action and judgment should be entered to reflect the consent interlocutory judgment entered in District Court Suit No 3018 of 2010.

The High Court went on further to state the legal position as follows:

“The relevant principle of res judicata here is issue estoppels, a principle which prevents the re-litigation of issue that have already been litigated and decided on the merits. In Lee Tat Development Pte Ltd v MCST Plan No 301 [2005] 3 SLR(R) 157 (“Lee Tat”) at [14] – [15], the Court of Appeal held that the following requirements are necessary to establish issue estoppels:

  1. there must be a final and conclusive judgment on the merits;
  2. the judgment must be by a court of competent jurisdiction;
  3. there must be identity between the parties to the two actions that are being compared; and
  4. there must be identity of the subject matter in the two proceedings.

The High Court in its final analysis of the entire matter stated the following:

“In the present case, it is clear that the consent interlocutory judgment is final as there remains nothing more to be decided in relation to the principal parties’ liabilities arising from the accident.”

United Legal Alliance was appointed by Liberty Insurance Pte Ltd (“Liberty Insurance”), the insurers for 1st Defendant in this matter. This was an appeal by the 2nd Defendant’s insurers against the Court’s dismissal of their application to stay the main action under the inherent jurisdiction of the Court. Briefly, the main action pertains to the claim by the Plaintiff for damages arising out of a chain collision of three Lamborghinis along the North South Highway of West Malaysia. The 2nd Defendant’s insurers had applied for the stay of the main action on the basis that there was a Market Agreement (Barometer of Liability) signed by the General Insurance Association of Singapore and various insurers (“Market Agreement”). Under the Market Agreement, the GIA Panel of Adjudicators can make a decision on whether Liberty Insurance was bound by the Market Agreement to pay the Plaintiff’s claim in full. Pending such decision, the 2nd Defendants applied for a stay. The Court dismissed the 2nd Defendants application. In doing so, the Court examined the test to be applied for a stay of proceedings under the Court’s inherent jurisdiction. After a review of case law, the Court found that a stay of proceedings under the Court’s inherent jurisdiction would rarely be granted and would only be granted if the interests of justice warrants such an order. The Court stated that the main question in granting the stay was whether the decision by the GIA Panel of Adjudicators would resolve the Plaintiff’s claim in its entirety. In this regard, the Court was unable to agree with the 2nd Defendant’s position. The Court stated that even if the Market Agreement was applicable, it would only be binding between Liberty Insurance and the 2nd Defendant’s insurers. In such case, even if the GIA Panel of Adjudicators were to find that Liberty Insurance was to pay all of the Plaintiff’s claim, the Plaintiff’s claim against the 1st Defendant would still have to proceed. The Court further rejected the 2nd Defendant’s argument that a stay of the main action would lead to the saving of legal cost. The Court stated that such argument assumes that 1st Defendant would not continue to contest the Plaintiff’s claim. Secondly, if the GIA Panel of Adjudicators eventually finds in favour of the 2nd Defendant’s insurers, the 2nd Defendant could attempt to claim from the 1st Defendant the additional costs that the 2nd Defendant would not have otherwise incurred if Liberty Insurance had agreed to the Market Agreement from the start. The Court was of the view that the 2nd Defendant’s argument about savings of costs was not a strong one. In light of the above, the Court found no merit in the 2nd Defendant’s application for stay of proceedings and dismissed the 2nd Defendant’s appeal.

Extensively re-evaluates the common law duties of employers in negligence

The appellant (plaintiff) Chandran a/l Subbiah (“Mr Chandran”) worked for the respondents (defendants) Dockers Marine Pte Ltd (“Dockers Marine”) as a stevedore to move cargo containers on board a vessel. Prior to the commencement of work, no safety inspection or safety briefing was carried out by the supervisor of Dockers Marine. In addition, no safety equipment was supplied to Mr Chandran even though he was required to work from heights. During the course of loading and unloading containers, a ladder which Mr Chandran was standing on turned out to be defective and suddenly detached from the hull of the vessel. This caused Mr Chandran to fall about 10 metres onto the top of a cargo container in the hold of the vessel. As a result, Mr Chandran sustained severe head injuries, the long-term effects of which included visual defects, cognitive impairment and headaches. Consequently, Mr Chandran started proceedings to recover damages for personal injuries and consequential loss from Dockers Marine.

The decision of the High Court
Mr Chandran’s claim was based on three causes of action: (a) Dockers Marine had breached its common law duty of care as an employer; (b) Dockers Marine had breached its common law duty of care as an occupier of the vessel and (c) Dockers Marine had breached its statutory duty under the Factories Act.
The High Court dismissed Mr Chandran’s claim and rejected all three causes of action.

Common law duty of care as an employer
With regard to the common law duty of care as an employer, the High Court, following the Court of Appeal decision of Parno v SC Marine Pte Ltd [1999] 3 SLR(R) 377 (“Parno”), noted that the common law duty of an employer with respect to its employee was generally divided into three categories: to provide a competent staff of men, adequate material, and a proper system of work and effective supervision.
Mr Chandran argued that Dockers Marine had breached their duty to provide a safe system of work by failing to provide adequate equipment for him to enter the hatch. However, the High Court, distinguishing a safe system of work from a safe place of work, held that Dockers Marine had not breached their duty to provide a safe system of work because the means of entry to the premises cannot constitute the system of work and there was also no evidence of any industry practice suggesting that harnesses or other safety equipment should have been used in the course of moving in and out of the hatch.

Mr Chandran argued that Dockers Marine had breached their duty to provide a safe place of work by failing to conduct a proper inspection of the premises. However, the High Court held that, aside from apparent and obvious defects, a master stevedore does not have a duty to inspect a vessel owned by a third party before allowing the workers to perform the task of loading and unloading, following the Scottish cases of Thomson v Cremin [1956] 1 WLR 103 (“Cremin”) and William Durie v Andrew Main & Sons [1958] SC 48 (“Durie”). The High Court distinguished and chose not to apply Marney v Scott [1899] 1 Q.B. 986 and McDermid v Nash Dredging & Reclamation Co Ltd [1987] A.C. 906, both of which supported the notion of a broader duty being imposed on master stevedores. On the facts, there was no evidence of any circumstance which would have given rise to any ground of suspicion prior to the commencement of work by Mr Chandran and his co-workers.

Common law duty of care as an occupier of the vessel
The High Court held that Dockers Marine had exercised no control over the vessel, and so had not been a legal ‘occupier’.

Statutory duty under the Factories Act
The High Court held that the vessel’s hold, where the accident occurred, did not constitute ‘premises’ for the purposes of the Factories Act.

The decision of the Court of Appeal
Mr Chandran appealed to the Court of Appeal. The Court of Appeal focused only the first cause of action – that relating to the common law duty of care owed by employers. The Court of Appeal found in favour of Mr Chandran on this point and allowed the appeal.
The Court of Appeal found that the High Court had erred on the point relating to the common law duty of care owed by employers. The Court of Appeal found that the High Court’s decision with regard to the duty to provide a safe place of work was premised primarily on rather dated Scottish legal precedents which the Court of Appeal cautioned against placing undue reliance on. The Court of Appeal opined that the law of employer responsibility (or the lack thereof) evident in older English authorities are a historic legacy of the “unholy trinity” of employer-friendly defences (common employment, voluntary assumption of risks and contributory negligence) and stemmed from the former judicial aversion towards extending employer responsibility for the welfare of workers. Conversely, the law on employer responsibilities have progressively evolved with the increase in knowledge of prevention or reduction of risks of injury to workmen. In Singapore, present day community attitudes towards worker safety have also undergone a sea change in keeping with the progressive evolution of work-related behavioural norms and societal expectations.

The golden rule
Employers essentially owe a “single overarching duty” to take reasonable care for the safety of their employees in all circumstances, by weighing the likelihood that particular risks might lead to injury and taking effective, practicable and proportionate precautions against these risks. This golden rule was recognised locally in Araveanthan v Nippon Pigment (S) Pte Ltd [1992] 1 SLR(R) 167.

Scope of the golden rule
The Court of Appeal highlighted the personal and non-delegable nature of the employer’s duty of care to his employees. An employer cannot wash his hands off all responsibility for the safety of his employees simply because the employees are sent to work at a site controlled by others. The law continues to place on an employer an obligation to take reasonable care for its employees’ safety.

Since the golden rule calls for an employer to take reasonable care to prevent harm from befalling its workers, it is a logical and reasonable extension to expect an employer to undertake a preliminary risk assessment before allowing its employees to commence work. Thus, all employers, involved in work that might give rise to safety concerns are generally expected to undertake a pre-work assessment of the risks present at the locations where its employees perform their work. However, this does not mean that the duty to assess risks is absolute; there might be circumstances where compliance with the golden rule will not require the performance of such a preliminary risk assessment, and there might be instances where it would be unreasonable to undertake such an exercise such as in the case of Cook v Square D Ltd [1992] ICR 262 where the electronics engineer who was employed by a company based in the United Kingdom was dispatched to do largely sedentary work in the Saudi Arabia.

Standard of care
In the context of employer’s liability, the golden rule demands from any particular employer what a reasonable employer in that specific industry would have observed. The Parno categories (to provide a competent staff of men, adequate material, and a proper system of work and effective supervision) are useful guides in fleshing out the standard of care ordinarily expected from employers in most situations but the function of such categories should not be overstated and mechanically applied. Ultimately, these categories are not distinct duties of care owed by employers but a single overarching duty of care encapsulated by the golden rule.

On the facts, the Court of Appeal held that Dockers Marine had owed their employees, including Mr Chandran, a duty to undertake a risk assessment of the immediate area in which they were deployed, and that Dockers Marine had been negligent both in failing to carry this out and in failing to take reasonable measures to minimise the risk of workers falling from heights by the provision of safety belts and harnesses. The Court of Appeal rejected as inappropriate for Singapore the narrow duty placed on master stevedores in Cremin and Durie (the cases relied on by the High Court), and instead applied a broader approach.

Sets out the applicable test for ascertaining whether a duty of care exists vis-à-vis cases involving psychiatric illness or nervous shock.

The respondent (second defendant) Lim Chiew Hock (“Mr Lim”) was the driver of a taxi. The first appellant (first plaintiff) Ngiam Kong Seng (“Mr Ngiam”) was riding his motorcycle when a collision occurred with Mr Lim’s taxi. While Mr Ngiam lay injured on the road after the accident, Mr Lim approached him. Thinking that Mr Lim was a passer-by, Mr Ngiam asked Mr Lim to contact the second appellant (second plaintiff) Quek Sai Wah (“Ms Quek”) who was Mr Ngiam’s wife, and inform her of the accident. Mr Lim did so and then contacted Ms Quek again. Mr Lim also gave Ms Quek a lift to the hospital. All along Mr Lim never disclosed that he was the driver of the car that had collided with Mr Ngiam. Over the next two days, Mr Lim continued to interact with Ms Quek and tried to find out what she had told the police. Several months later, during investigations by Mr Ngiam’s solicitors, Ms Quek discovered that Mr Lim was the driver of the vehicle that had injured her husband. Her reaction was one of shock at what she perceived to be a betrayal; she suffered memory loss less than two weeks later and was treated for major depression within a month. Mr Ngiam alleged that the collision was solely caused by the negligence of Mr Lim. On the other hand, Ms Quek alleged that Mr Lim’s failure to inform her of his involvement in the accident and making her believe he was a helpful bystander caused her to suffer from clinical depression.

The decision of the High Court
The claims of both Mr Ngiam and Ms Quek were dismissed with costs to Mr Lim.

Mr Ngiam’s claim
The High Court found that Mr Lim was not negligent in his driving of the taxi and the taxi did not hit or rear-end the motorcycle. Mr Ngiam fell onto the road of his own accord when the motorcycle skidded after he lost control. The motorcycle then hit the taxi on the taxi’s left side before it fell onto its right side.

Ms Quek’s claim
As Mr Ngiam had failed in his claim against Mr Lim, Ms Quek’s claim (which hinged on that of Mr Ngiam) failed in limine.
Even if Mr Ngiam’s claim did not fail, Ms Quek’s claim would have been dismissed for having no basis in law and being too remote.
In order to succeed in her claim, Ms Quek had to satisfy the three elements laid down by Lord Wilberforce in McLoughlin v O’Brien [1983] AC 410 (“McLoughlin”), reiterated by the House of Lords in Alcock & Others v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and followed by the Singapore High Court in Pang Koi Fa v Lim Djoe Phing [1993] 2 SLR(R) 366:

(a) the class of persons, whose claims ought to be recognised;
(b) the proximity of such persons to the accident; and
(c) the means, by which the psychiatric illness was caused.

In relation to the first element, the relationship between the claimant and the injured person/victim must be sufficiently proximate, viz either parent and child or husband and wife. While Ms Quek satisfied the first element (Ms Quek was the wife of Mr Ngiam), she failed on the second and third criteria because a claim for damages for nervous shock is not actionable unless the nervous shock had been caused by the claimant actually seeing or hearing the relevant event or its immediate aftermath.

The decision of the Court of Appeal
On appeal by Mr Ngiam and Ms Quek, the Court of Appeal held that the High Court did not err in arriving in its decision that Mr Lim was not responsible for Mr Ngiam’s injuries. The Court of Appeal also found that Mr Lim owed no duty of care to Ms Quek. The appeal was thus dismissed. The test under Singapore law for determining the existence of a duty of care in the context of claims in negligence of psychiatric harm is the same two-stage test that was laid down by the Court of Appeal in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”) which follows the two-stage test laid down in Anns v Merton London Borough Council [1978] AC 728: “First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise…”

Recognisable Psychiatric Illness (Threshold requirement)
As an extremely important threshold requirement in proving liability for negligence in psychiatric harm, the claimant must prove that he or she suffered a “recognisable psychiatric illness”. Psychiatric illness must be distinguished from sorrow and grief (no matter how severe), for the latter are considered as constituting part of the vicissitudes of life.

Factual Foreseeability of Damage (Threshold requirement)
Reasonable foreseeability, in the factual sense, of the damage or injury suffered is a preliminary threshold requirement which a claimant in a negligence action must satisfy. On the facts, this requirement was not satisfied in relation to Ms Quek. To hold that it is reasonably foreseeable that the mere communication of the information in question without more could result in harm to a party boggles the imagination and stretches the realms of reality. Although it is acknowledged that information communication might result in foreseeable harm in certain situations, this was not such a case.

Legal Proximity (first stage of the Spandeck two-stage test)
On the assumption that Ms Quek suffered a recognisable psychiatric illness and established the requisite factual foreseeability, the Court of Appeal considered the issue of legal proximity, which constitutes the first stage of the two-stage approach adopted in Spandeck.
The Court of Appeal was of the view that the test for proximity incorporates the three elements set out by Lord Wilberforce in McLoughlin.

(a) The class of persons whose claims should be recognised (circumstantial / relational proximity)
The Court of Appeal found that the requisite relational proximity existed on the facts of the present appeal. The spousal relationship between Mr Ngiam and Ms Quek supported the view that Mr Lim did owe Ms Quek a duty of care.
(b) Proximity to the accident / tortious event (physical proximity)

Whilst, in general, claims in negligence for damages for psychiatric harm usually arise in accident situations (ie, an accident is said to be the tortious event which caused the claimant to suffer psychiatric harm), in the present appeal, the tortious event was the communication of information from Mr Lim to Ms Quek, and not the accident itself. If the tortious event was the accident itself, then Ms Quek would clearly not be physically proximate to the alleged tortious event. (c) The means by which psychiatric harm is caused (causal / perceptional proximity) The traditional view in relation to the means by which psychiatric harm is caused was stated by Lord Wilberforce in McLoughlin as follows: “[T]here is no case in which the law has compensated shock brought about by communication by a third party … The shock must come through sight or hearing of the event or of its immediate aftermath.” The traditional focus of the common law on direct physical perception is also reflected in the following statement of Windeyer J in the Australian High Court decision of Mount Isa Mines Limited v Pusey (1970) 125 CLR 383: “If the sole cause of shock be what is told or read of some happening then I think it is correctly said that, unless there be an intention to cause a nervous shock, no action lies against either the bearer of bad tidings or the person who caused the event of which [he] tell[s]. There is no duty in law to break bad news gently or to do nothing which creates bad news.” The court then considered cases where the courts have departed from the traditional view vis-à-vis situations where the communication of information led to psychiatric harm. One case cited was Wilkinson v Downton [1897] 2 QB 57 (“Wilkinson”) where the defendant falsely and maliciously represented to the plaintiff that the plaintiff’s husband had been seriously injured. The plaintiff developed psychiatric harm and sued for damages for the injury to her health. Wilkinson is authority for the principle that wilfully communicating false information is actionable if it causes physical, including psychiatric, harm. In the present case, however, there was no intention to cause harm, much less the type of harm that Ms Quek complained of. Thus, Ms Quek did not satisfy the requirement of legal proximity which constitutes the first stage of the two-stage approach adopted in Spandeck.

Public Policy Considerations (second stage of the Spandeck two-stage test)
Having regard to the Court of Appeal’s conclusion in relation to the issue of legal proximity on the facts of the present appeal, it was unnecessary for the Court of Appeal to proceed to consider the second stage of the two-stage test laid down in Spandeck. However, the Court of Appeal proceeded to consider the second-stage to underscore the conclusion that was reached at the first stage. Considerations of public policy militate against the finding of a duty of care where communication of information is concerned, even assuming that legal proximity can be established at the first stage of the Spandeck two-stage test, except in situations where a “malign intention” on the part of the person communicating the information is present (Tame v New South Wales (2002) 211 CLR 317).

This is a personal injuries and dependency claim arising from a road traffic accident. Interlocutory judgement was entered by consent in the Plaintiffs’ favour at 95%. Amongst other things, the Plaintiffs sought to recover over S$3.87 million by way of dependency claims. The Assessment of Damages hearing before the Assistant Registrar (“AR”) took place over a period of 22 days.

On 3 January 2008, at about 10.15pm, Mdm Law was driving the Deceased’s car, with her son Michael as front passenger, along the PIE. An engine problem developed and Mdm Law stopped the car along the road shoulder before contacting the deceased to inform him of the problem. The deceased arrived at the scene shortly thereafter in a taxi. The taxi had stopped in front of the deceased’s car. As the deceased was walking towards the front of his car, a prime mover driven by the Defendant collided onto the rear of the car at high speed. The impact caused the car to surge forward and hit the deceased, resulting in him being flung towards a nearby tree and hitting his head against the railings. The incident was witnessed by Mdm Law and Michael who were standing along the side of the road near the railings at the material time. The deceased was sent to the hospital at around 11pm. He succumbed to his injuries and passed away on 4 January 2008.

The deceased was 47 years of age at the time of the accident. He left behind a wife, Mdm Law, and 3 children, Michael (19 years old), Sally (17 years old), and Tracy (13 years old) at the time of his demise.  The deceased married Mdm Law in 1989. Mdm Law stopped work after the birth of Michael and became fully dependent on the deceased for financial support.
The deceased was a self-made man who started off as a clothes hawker in the clothing retail line before moving on to the business of trading in cooking oil where he made his fortune. He started the cooking oil trading business where he formed the company Ko Sing Trading Pte Ltd with a friend. Around 1990, the deceased started his own company Wing Hing Trading Ltd (“WHTL”), also in the cooking oil trading business. About 2 years later, he formed another company, Wing Hing Trading development Ltd (“WHTDL”) with his 2 younger brothers. WHTDL flourished and by 1996/1997 was reportedly able to generate a turnover of HK$1 billion and millions of dollars in profit. Around 1997, WHTDL diversified its business into property. The diversification did not yield immediate result and WHTDL was eventually wound up in late 2000. The deceased decided to come to Singapore to explore opportunities in 2002. His family joined him from Hong Kong in 2003 and subsequently became permanent residents in Singapore.

The major head of claim was with respect to the issue of dependency. This claim comprised the following:

Mdm Law Pre-trial $851,866.40
Post-trial (the Deceased’s working years) $1,044,463.35
Post-trial (the Deceased’s retirement years) $176,400.00
Michael $250,350.60
Sally $633,475.65 / $457,675.65
Tracy $458,829.10

Loss of dependency can be calculated using the multiplier-multiplicand approach. The multiplicand may be determined: (a) by adding the value of the benefits received by the dependants from the deceased (“traditional method”); or (b) by deducting a percentage from the deceased’s income which forms the deceased’s personal expenditure (“the percentage deduction method”). The balance is then assumed to be for the benefit of the dependants: Hanson Ingrid Christina and others v Tan Puey Tze and another appeal [2008] 1 SLR(R) 409 at [26].
The Plaintiffs’ expert, Mr Sharma, adopted both methods in calculating the quantum for dependency loss. The traditional method was used to determine the multiplicand as the deceased was not a salaried employee and his income was derived mainly from the rental proceeds and capital appreciation of his properties. He summed up the expenses of the entire family (the deceased being the sole breadwinner) and deducted a portion (20%) which would have been attributable to the deceased. Mr Sharma did not consider the deceased’s income as he was instructed that the supporting documents relating to the deceased’s income were incomplete. According to Mr Sharma, from calculations based on documentary records available, the family’s known expenses had exceeded the deceased’s estimated income in 2008.
Referring to the passage in McGregor on Damages:

[Where] the deceased’s sole property consist of unearned income out of which he supported the dependent, and the whole estate from which he derived his income passes to the dependent, it is strongly arguable that the dependant’s claim fails on the ground that there is no pecuniary loss. All that the dependant could lose was the support from that income, and since the death he has the income himself and citing Hanson Ingrid, the AR noted that the aim of a dependency award is to compensate for loss which the dependent has incurred as a result of the death. Where no loss can be proved, the dependency claim cannot be sustained.

There was no evidence that at the time of his demise, the deceased had any other source of income besides those derived from his assets. The deceased may have been able to meet the dependants’ expenses based on income generated from his existing assets, be it rental, dividends or capital appreciation. These assets and the corresponding income generated would, however, have been inherited by the dependants. The Plaintiffs would not, as such, have suffered any loss as this income would have continued to accrue after the deceased’s death.

The Plaintiffs cited the case of Tan Harry v Teo Chee Yeow Aloysius [2004] 1 SLR(R) 513 at [97] to support their contention that a deduction for inheritance is never made where the parents pre-decease the children.

The AR noted that the case involved a claim for dependency by the aged parents of the deceased. In Tan Harry, Justice Woo was dealing specifically with the issue of whether any deduction should be made for inheritance in a dependency claim. The comment that in a situation where the dependants were younger than the deceased, no deduction should be made for assets which the dependants would ultimately inherit should therefore be understood in that context. The issue of whether a deduction should be made is different from that of ascertaining whether there is in fact any loss of dependency. Not every asset or sum received from the deceased’s estate must be deducted. Justice Woo clearly acknowledged the principle that where the dependant’s benefit was derived solely from existing assets, there would have been no dependency loss incurred since the assets would have passed on to the dependant.

The AR was therefore unable to agree with the Plaintiffs’ first method of calculating the quantum for dependency loss based solely on the existing expenditure pattern of the dependants.

Method 2 - Cape Distribution Ltd v O’Loughlin
The Plaintiffs adopted a 2nd method of calculation with a view to verifying the calculations using the traditional method. This 2nd method of calculation was based on the approach adopted in the case of Cape Distribution Ltd v O’Loughlin [2001] EWCA Civ 178. In that case, the deceased did not earn a fixed salary, but managed a portfolio of properties which gained him income with which he supported the dependants. The court awarded the dependency claim based on the cost of replacing the deceased’s skills as a property manager.

The AR found this method of calculation problematic as one needed to assess the value of the deceased’s skills in managing and developing his assets and therefore one needed to ascertain the replacement cost for the deceased’s skills and experience.

On the evidence available, the AR was not convinced by either Mr Sharma’s assessment that the deceased’s experience and competence was comparable to that of a professional property and asset manager with 10 to 15 years of experience, or the Defendant’s counter proposal of calculation based on the salary of a property and asset manager of 3 to 5 years.

He was also doubtful whether it was appropriate to use the salary of a professional property and asset manager as a benchmark for calculating replacement cost in the present case. Information such as the size of the deceased’s portfolio of assets and the time and effort required in the management of such a portfolio were necessary in order to make a proper assessment. However, such information was not available from the evidence adduced.

It would therefore be impossible, without venturing into the domain of speculation, to quantify the value of the deceased’s skills in managing and developing his assets.

In the light of the above, it was held that there should be no award for dependency in this case.

In this case, the plaintiff was the 2nd defendant in another suit where they were found liable to contribute to payment of damages for breach of care in fabricating a standby slip-joint for a drill ship. Following the judgment in the main action, the plaintiff in the current action took out an Origination Summons (“OS”) against the defendant, First Capital Insurance Pte Ltd.

The plaintiff company was established in Singapore in 1978 namely a specialist service engineering company and they were a subsidiary of an international multi-industry Dutch group known as Stork NV up till April 2001. The plaintiff business is to service, repair and recondition equipment used in the oil and gas industry including high pressure drill floor equipment such as manifolds, spools, valves, BOPs and mud pump modules.

In 2002 before the commencement of the Suit, the plaintiff’s managing director received a letter dated 18th July 2002 from an English Law firm who were based here in Singapore. The law firm was representing the owners, charterers and managers of a vessel. The letter essentially was a notice stating “catastrophic failure” of the standby slip joint on 16th March 2001. On 11th September 2002, the plaintiff was served with papers for pre-action interrogatories by local counsel instructed by the English Law Firm.

The plaintiff’s representative, a financial controller, wrote to McLarens Singapore Pte Ltd (“McLarens”) and sought confirmation that Zurich Insurance (Singapore) Pte Ltd (“Zurich”) would indemnify the plaintiff under the relevant policy. The representative wrote to the wrong insurers. Despite the wrong insurers, the plaintiff after repeated querying received a reply from Zurich that “it was not at risk at the main action”. The defendant solicitors on the other hand sent a fax repudiating liability under the relevant insurance policy.

The only issue for determination before the High Court in the OS was whether the defendant was entitled to require strict compliance of the notice provision by the plaintiff and repudiate liability since the Policy contained inter alia Condition 3 which stated that the plaintiff had to give “immediate notice” to the defendant in the event of “any occurrence which may give rise to a claim under the Policy and under Condition 10 where “due observance and fulfillment of the terms of the Policy shall be a condition precedent to any liability of the defendant”. The defendant’s position was that the plaintiff had failed to comply with the notice provision with regards to the English Law Firm’s letter and interrogatories application.

The High Court dismissed the plaintiff application and stated that the defendant was not aware of the existence of the letter from the English Law Firm until 18 September 2002 and saw the letter for the first time on 10th August 2004 and in this regard the defendant had not waived compliance of the notice provision vis-à-vis the said letter.

Further, the High held that there was no ambiguity in any of the terms, conditions or exclusions in the Policy and a notice prejudice rule like the notice provision was specifically put into insurance policies to protect the insurer and not the insured as the insurer is the ultimate pay master in the usual course of events. It was for the insurer, not the insured, to determine the issue of liability, in the giving of notice.

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