Hanson Ingrid Christina and Others v Tan Puey Tze and Another Appeal
[2007] SGHC 203

Case Number	:	Suit 681/2005, RA 160/2007, 169/ 2007
Decision Date	:	28 November 2007
Tribunal/Court	:	High Court
Coram	:	Judith Prakash J
Counsel Name(s)	:	Lok Vi Ming SC, Edric Pan and Loh Jen Wei (Rodyk & Davidson) for the plaintiffs; Abdul Rashid bin Abdul Gani and Sharanjit Kaur (KhattarWong) for the defendant
Parties	:	Hanson Ingrid Christina; Eu Zai De Alexander III; Eu Zai Feng Elliot — Tan Puey Tze

28 November 2007

Judgment reserved.

Judith Prakash J

1       At about 3.45 am on 18 December 2004, the late Mr Alexander Yee-Kui Eu Jr @ Sandy Eu (“Sandy Eu”) was a passenger in a car that collided with a stationary motor lorry along the North-South Highway in Malaya. The car was driven by Tan Puey Tze, the defendant. Sandy Eu passed away shortly after the accident.

2       At the time of his death, Sandy Eu had 3 dependents and they are the plaintiffs in the present action. The first plaintiff, Ingrid Christina Hanson (“Ingrid Hanson”), was Sandy Eu’s wife and is presently 47 years old. The second and third plaintiffs, Eu Zai De Alexander III (“Alexander”) and Eu Zai Feng Elliot (“Elliot”), are the sons of Sandy Eu and Ingrid Hanson, and are now 19 and 18 years old respectively.

3       Pursuant to ss 20 and 21 of the Civil Law Act (Cap 43, 1999 Rev Ed) (the “Act”), the plaintiffs commenced the present action claiming dependency and damages for bereavement.

4       The facts of this case are somewhat novel in the sense that although the marriage of Sandy Eu and Ingrid Hanson had broken down and a decree nisi had been granted in 2002, at the time of the accident, the decree absolute had not been issued. This raised an interesting legal issue as to whether Ingrid Hanson was entitled to sustain her claim for dependency as Sandy Eu’s wife.

5       Soon after the plaintiffs commenced proceedings, the defendant applied (vide SUM 6185/2005) to strike out Ingrid Hanson’s claim on the basis that she was not Sandy Eu’s lawful wife at the time of his death and therefore not a dependent. The assistant registrar, Dorcas Quek (the “AR”), dismissed the defendant’s application and held that as the decree absolute had not been issued, the legal form of the marriage remained intact. Ingrid Hanson was therefore still considered Sandy Eu’s wife and could maintain her claim. The defendant did not appeal against this decision.

6       In February 2006, by consent, interlocutory judgment was entered for the plaintiffs against the defendant, with general and special damages, including pre-trial and post-trial dependency, to be assessed by the Registrar. The hearing was held before the AR who subsequently awarded a total sum of S$1,223,200 + US$160,000 + A$293,356.51 to the plaintiffs with interest of 3% to run on the loss of dependency from the date of death to the date of trial. The breakdown of the final sums allowed is set out in the following summary found in the AR’s grounds of decision:

Party	Multiplicand	Multiplier	Other expenses	Time	Calculation of dependency	Value dependency
Ingrid Hanson	$4,200	4 years	Nil	Dec 2004 to Dec 2008	$4,200 x 48	S$201,600
			Bereavement			S$10,000 TOTAL: S$211,600
Alexander	$5,900	7 years		Dec 2004 to Dec 2011	$5,900 x 84	S$495,600
			Singapore American School Fee	2005 Spring semester	S$12,000	$12,000
			Undergraduate tuition fees at US University (4 years)	2007 to 2011	US$160,000 (based on average fee of US$40,000 per year)	US$160,000
						TOTAL: S$507,600 + US$160,000
Elliot	$4,200	10 years		Dec 2004 to Dec 2014	$4,200 x 120	S$504,000
			College fees for foundation year in Australia	2005 – 2006	A$16,004 (allowed in full because Sandy Eu would not have been funding Elliot’s university education at this moment	A$16,004
			English for Introductory Academic Programme (before Undergraduate studies in Australia	2006	A$2,435.51	A$2,435.51
			Undergraduate tuition fees at Monash University (6 years)	2006-2012	Year 1: A$38,000; Years 2-6: A$236,917	A$274,917
						TOTAL: S$504,000 + A$293,356.51
GRAND TOTAL						S$1,223,200 + US$160,000 + A$293,356.51

Issues

7       Both parties appealed against the awards and the issues that arise from these appeals can be summarised as follows:

(a)    Sandy Eu’s income – What was Sandy Eu’s income at the time of his death? What would his likely income be had it not been for the accident?

(b)    Appropriate multiplicands ­– Are maintenance orders relevant to the calculation of the loss of dependency? What are the appropriate multiplicands for the plaintiffs? Can the court take into account income derived from assets and capital (besides earned income) when assessing dependency?

(c)    Appropriate multipliers – What are the appropriate multipliers for the plaintiffs?

Sandy Eu’s income

8       The most contentious issue before the AR was what Sandy Eu’s income would have been had he lived. The AR held that after 2004, he would have earned a maximum of $300,000 per annum and would also have had unearned or investment income of $100,000 per annum. In total therefore, she considered that his annual estimated projected income would have been $400,000. On the appeal, the plaintiffs contended that the minimum sum Sandy Eu would have earned would have been $450,000 from employment and $100,000 from income but that if the court accepted that he had a chance of becoming a private banker or investment banker from 2005 onwards, his total annual income would have been between $700,000 and $1.1m. The defendant, on the other hand, contended that the AR had been too generous to the plaintiffs and that not only should she not have taken the investment income into account but also that she should have assessed his annual income at the level of only $91,000 per year. This issue therefore was a highly contentious one on the appeal as well. It has to be dealt with first because the determination of the projected income would have an impact on the dependency claims.

9       There were two main difficulties with the issue. First, the determination of Sandy Eu’s income at the time of his death was problematic because evidence was given that Sandy Eu had been trying to lower his income and conceal his assets as a result of the matrimonial proceedings. It was therefore unclear whether his declared income at that point in time was also his true income. Second, the court was also asked to engage in conjecture as to whether Sandy Eu would have become a private banker in today’s burgeoning economy, and if so, what his income would have been.

10     As to Sandy Eu’s income at the time of his death, the AR declined to find that Sandy Eu was actually earning more than he declared. The AR also held that it was uncertain whether Sandy Eu would have been employed as a private banker, and even so, whether he would have been a successful private banker. The AR however found that Sandy Eu would probably have remained in the financial industry and on that basis would have earned $300,000 per annum. She also carried out a detailed review of Sandy Eu’s investments and came to the conclusion that a figure of $100,000 per year was reasonable for this item.

11     The evidence in relation to this issue, which is wholly factual, can be summarised as follows. Richard Hoon (“Mr Hoon”), the head of an international executive search consultancy, testified that Sandy Eu had intended to be a private banker as Mr Hoon had interviewed Sandy Eu in 2002 with a view to placing him as a private banker. Further, Mr Hoon gave evidence that in his personal experience, Sandy Eu’s strong networking abilities, good relationship skills and knowledge of financial products put him in good stead to be a highly sought-after and successful private banker. Counsel for the plaintiffs also argued that Mr Hoon was in an ideal position to assess Sandy Eu’s abilities as Mr Hoon had known Sandy Eu personally since 1985.

Sandy Eu’s strong networking ability

12     Counsel for the plaintiffs argued that Sandy Eu was very skilled at networking and had a huge pool of friends and contacts. Sandy Eu was a grandson of the late Mr Eu Tong Sen and many of his friends and business contacts were high net-worth individuals who held senior positions in large corporations and organisations. Sandy Eu was also actively involved in the Young President’s Organisation, the membership of which consisted of corporate executives, entrepreneurs and persons holding head managerial roles in companies.

Sandy Eu’s good relationship skills

13     To be a successful private banker, it is undisputed that good relationship skills are necessary. High net-worth individuals, or for that matter any individual, would be hesitant to entrust their wealth to somebody whom they did not trust or have confidence in. In this regard, the plaintiffs’ witnesses had testified that as Sandy Eu possessed a charismatic personality and a likeable disposition, he would have had no difficulty in converting his contacts into clients.

Sandy Eu’s knowledge of financial products

14     Sandy Eu had a degree in economics and a master’s degree in commerce. He was also a chartered accountant and a qualified dealer. The plaintiffs further argued that as Sandy Eu had been involved in the financial and banking industry for at least 20 years prior to his death, he possessed the requisite knowledge to be a private banker. In this respect, there is no doubt that Sandy Eu had an impressive pedigree in the banking industry having been the Managing Director and Country Head at Lehman Brothers, Regional Director of Salomon Brothers, General Manager and Executive Director at Eu Yan Sang (HK) Ltd, Managing Director and Executive Director at DBS Securities Singapore, and Managing Director of DBS Group Global Private Banking.

15     Sandy Eu had, however, never been employed as a private banker. While he had worked briefly in DBS Group Global Private Banking from 1999 to 2000, he was not employed as a private banker but instead as a manager of the private banking sector. Mr Hoon and Mr Patrick Teo, a former Managing Director of Rothschilds Singapore, did not think that this lack of experience would have been a handicap had Sandy Eu wanted to go into private banking. They testified that many of Sandy Eu’s previous jobs entailed private banking functions, i.e. building up client relationships and servicing private clients and therefore he was qualified to make the change to this type of banking.

16     Further evidence was given by experts from both parties that the private banking industry has been booming since 2005 and that currently there is an acute shortage of qualified bankers to meet the high demand. The plaintiffs argued that in today’s financial climate, Sandy Eu would have been “snapped up” by a prospective employer at the earliest opportunity. The defendant, on the other hand, argued that it was unlikely that Sandy Eu would be so employed as private banking was a career for young people. In response, Mr Hoon opined that the reason why private bankers in Singapore were young was not that they were sought after because of their age, but was that there were not enough senior personnel available to do the job.

17     By dint of the above, the plaintiffs argued that there was more than sufficient evidence for the court to find that Sandy Eu would have found placement as a private banker from 2004 onwards.

18     The difficulty of assessing a person’s future income has been made more acute in this case because Sandy Eu did not have a stable career at the time of his death and he was also, at that time, deliberately downplaying and reducing his income. To make matters more complicated, the plaintiffs have invited this court to infer, from Sandy Eu’s skill sets and character, that he would have: (a) sought employment as a private banker; (b) gained such employment; (c) been a very successful private banker; and (d) stayed in the industry for at least another 25 years (per Ingrid Hanson’s claim), when hitherto he had never been employed as a private banker.

19     There was no direct evidence that indicated that Sandy Eu was aiming to become a private banker after his divorce had been settled. At the time of his death, he was working part-time as a consultant with a company called SAE Consultants Pte Ltd which he himself controlled. Although his income from that business was not very high, he had the skills to improve the business and thus his income had he wanted to. He had also taken up a course in financial planning in 2002 and the knowledge acquired from this course could have been used to improve the return from his business. Mr Hoon, the main witness for the proposition that Sandy Eu would have taken up employment as a private banker, could not support his assertion of such an intention by reference to any contemporaneous documentary evidence. The only document which indicated Sandy Eu’s employment intentions was an e-mail which Mr Hoon had sent Sandy Eu on 19 December 2002. At that time, Mr Hoon stated that he had not been able to find any employment opportunities for Sandy Eu and said “[i]t is especially more difficult for senior management appointment as well as those who are above 50 years old”. It appeared therefore, that at that stage, Sandy Eu was seeking employment as a senior manager in a bank rather than as a private banker. Sandy Eu had set up his own business after this failure to find paid employment elsewhere and there was no clear evidence that after the divorce was settled, he would have closed down that business and worked for a third party instead.

20     On the other hand, the business earned only $216,000 in 2004 (and from that amount, Sandy Eu claimed he had been paid a salary of $91,000 only) and by the end of that year, it was clear from the orders made by the Family Court that Sandy Eu would have to pay out at least $171,600 in maintenance annually for Ingrid Hanson and their sons. He would not have been able to support such a level of maintenance payment plus his own fairly expensive lifestyle (the evidence of his friend Mr Teo was that even in the days when he was working part time and his income was at his lowest, he had not cut back on his expenditure) from his business alone had he kept it at the level at which it was then running. Sandy Eu would, therefore, have had to decide either to devote much more time to his business or to seek paid employment in the banking industry. It is my view that if he had gone into the banking industry, he was likely to have found work as a private banker or as senior management in view of the upturn in the industry after 2004. There was no doubt that he was a highly qualified man in relation to that industry and that he had a likable personality. I think that there was sufficient evidence to show that he would have been able to find employment in the industry at a fairly high level. Whilst the AR was not very optimistic as to Sandy Eu’s earning ability, she too concluded that the evidence indicated that he would have remained in the banking industry. I think that that was the correct conclusion but that she did not give enough consideration to the substantial upturn in the industry that took place after 2004 and the increased demand for experienced personnel.

21     The defendant’s expert, Mr Basu, testified that an investment banker in today’s environment could earn $500,000 or more annually. He confirmed that Sandy Eu, from the information he had been given about the latter, was an experienced investment banker and was a good rainmaker for investment banks. He also testified that an investment banker could earn as much as or more than a private banker. The evidence given for the plaintiffs was that a successful private banker earned between $600,000 and $1m a year. The AR thought that there was doubt as to whether Sandy Eu would have been recruited as a private banker in view of his age and lack of direct experience in that area and, even if he were recruited, it was unclear how long he would have stayed in the private banking industry. She was not inclined to accept Mr Basu’s figures but preferred to assess Sandy Eu’s future income on the basis of his prior earnings. In this respect, she asserted that his income had never exceeded $500,000 per annum prior to 2003 and therefore she could not conclude that he would have easily earned $500,000 after 2004. There was, however, evidence that before the year 2000, Sandy Eu’s income was between S$414,000 and $619,000 per annum (excluding investment income). In the light of all the evidence, I agree with the plaintiffs’ submission that the finding on Sandy Eu’s income earning ability was overly pessimistic and did not give sufficient weight to the expert evidence in relation to his income earning ability and the vastly improved economic climate today.

22     Having said that, I do not think that the plaintiffs have been able to establish that Sandy Eu would have earned a salary of between $600,000 and $1m a year, even as a private banker. He was in his fifties and this may have presented some handicap especially if he moved into a relatively new field. Mr Hoon had to concede on the stand that he had had difficulty in placing older persons in the private banking industry. In this respect, I think it is safer to rely on Mr Basu’s figures as to what an investment banker could earn and to put a slightly conservative spin on this because Sandy Eu was out of the banking industry for a couple of years. I therefore consider that it is reasonable to put Sandy Eu’s projected employment income at $450,000 a year. With regards to his investment and rental income, I find no reason to disturb the AR’s finding. Thus, I hold that Sandy Eu’s estimated total projected income would be approximately $550,000 per annum.

Appropriate multiplicands

23     Before assessing the appropriate multiplicands for each plaintiff, I must address the issue of whether maintenance orders are relevant to the calculations of loss of dependency.

24     On 13 September 2004, the Family Court made an ancillary order that, with effect from 1 October 2004, Sandy Eu was to pay a monthly maintenance of $4,200 to Ingrid Hanson, $5,900 to Alexander and $4,200 to Elliot. The plaintiffs sought to use these amounts as indicators of their dependency claims. The AR agreed and held that maintenance orders were good starting points to assess the dependants’ expectations of pecuniary benefits. This was because the Family Court, in assessing maintenance, considered very similar factors (viz, the wife’s financial needs and the husband’s financial capacity) that the court typically considers in awarding dependency claims. The AR, however, emphasised that maintenance orders were merely starting points from which the court may depart according to the circumstances.

25     On appeal, the defendant argued that the AR had erred because she failed to give due consideration to the nature and effect of maintenance orders. As maintenance orders were not final and were open to variation by either party, the defendant contended that it was “highly speculative” for the AR to use the maintenance order made in respect of the plaintiffs as a basis for calculating loss of dependency.

26     I consider that the AR was correct to take the maintenance orders as a starting point. The final aim of any court in calculating loss of dependency is to make a direct assessment of the value of the reasonable expectation of pecuniary benefit: Gul Chandiram Mahtani & Anor v Chain Singh & Anor [1996] 1 SLR 154. This may be done in two ways – (a) the court may simply add together the value of the benefits received by the dependents from the deceased (“traditional method”); or (b) the court may deduct a percentage from the deceased’s net salary consisting of his or her exclusively personal expenditure (“percentage deduction method”). On the appeal, the defendant contended vigorously that the second method should be applied to this case. The percentage deduction method is, however, not suitable in all cases. While it is a good guide when a stable pattern has been established in a marriage and virtually all net earnings are spent on living expenses, it would not be appropriate where, for example, the dependant is a young childless widow, or the husband is a high earner who may well spend a higher proportion on himself: Owen v Martin [1992] PIQR Q151. On the facts of this case, the percentage deduction method would be inappropriate in view of Sandy Eu’s fluctuating earnings coupled with the fact that he was purposely underutilising his established income-earning skills. This leaves the court to assess dependency on the traditional method.

27     The manner in which a court assesses dependency under the traditional method is similar to how the Family Court assesses maintenance. In both cases, the court will take into account the claimant’s needs and consider whether the deceased or respondent is able to meet those needs. The maintenance sum is thus a good starting point in assessing dependency and saves the court dealing with the dependency claim valuable time by negating the need for a thorough examination of each head of claim.

28     There is, however, a slight difference between maintenance orders and dependency claims. As the defendant pointed out, maintenance claims may be subject to future variation, whereas dependency claims are not. Thus, a maintenance order granted at the time when a child dependent was in primary school would be woefully inadequate when the child later embarks on tertiary education. Such a maintenance order may be varied upwards when the time comes. Dependency claims, however, suffer from a lack of such flexibility – the courts which assess dependency today will thus have to additionally take into account the needs of the dependent tomorrow and in such situations it would be wrong to blindly adopt the maintenance orders as the basis of the dependency claim.

(i) Ingrid Hanson

29     At the hearing of the ancillary matters, the court ordered that Sandy Eu was to pay Ingrid Hanson a monthly maintenance of $4,200. On the facts, there is no reason to believe that Sandy Eu would not have been able to afford to pay this sum from his income had he survived. As Ingrid Hanson was not a beneficiary under Sandy Eu’s will, the issue of whether she would be doubly compensated does not arise. I find no reason to depart from the sum of $4,200 per month as the multiplicand for Ingrid Hanson.

(ii) Alexander and Elliot

Preliminary issue: earned income or other income?

30     Alexander and Elliot are the sole beneficiaries of Sandy Eu’s will. The defendant has therefore raised the issue as to whether the court can take into account income derived from assets and capital (besides earned income) when assessing dependency. In this respect, the defendant relies on the following passage in McGregor on Damages (2003, 17^th Ed), which states at para 36-112:

[W]here the deceased’s sole property consists 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 the dependant could lose was the support from that income and since the death he has the income himself.

31     This proposition, taken by itself, is unobjectionable. 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: Auty v National Coal Board [1985] 1 WLR 784. Thus, in Pym v The Great Northern Rail Company (1863) 4 B&S 392, the deceased left a widow and nine children, the whole family being dependent on substantial income from settled property. On the deceased’s death, the eldest son became entitled to the property, though some provision was made under the settlement for the widow and younger children. It was not disputed that as the eldest son had inherited the property, he had not suffered any pecuniary loss.

32     It is, however, also important to understand that where there is clearly established a loss from one source, the fact that it may be made good from another by using a benefit received from the estate is beside the point: Wood v Bentall Simplex Ltd [1992] PIQR 332 (“Bentall Simplex”). In a case where the deceased’s income is in part derived from labour and in part from capital, the court has to ascertain how much loss has arisen because the deceased is no longer alive and able to work, and how much income was derived solely from capital which the dependants have inherited. To the extent that the dependants were maintained with income from capital, they could not be said to have suffered a loss. Thus, in Bentall Simplex itself, the dependant widow and sons had enjoyed income derived in part from the deceased husband’s labour on the farm and in part from capital. The defendant unsuccessfully contended that the dependants had suffered no loss of dependency because their enjoyment of the income had not ceased on the death of the deceased. It was found that since the sums which the widow and sons were receiving before the death could have been largely attributable to the deceased’s work on the farm rather than from a return on the capital invested, a loss of dependency had been shown.

33     On the facts of this case, I find that the defendant’s objections fail for three reasons. Firstly, as the AR found, there was insufficient evidence that in the normal course Sandy Eu had been paying for the plaintiffs’ expenses primarily through income obtained from his assets. While this may have been the case in 2003 and 2004, the state of affairs in those two years was probably, because of the matrimonial proceedings, a deviation from the norm. There is no doubt that Sandy Eu’s earned income in 1999 to 2002 would have been more than sufficient to support the plaintiffs at the level of the maintenance ordered by the court.

34     Secondly, the income that had been earned from investments could largely be attributed to Sandy Eu’s skills and business acumen in taking advantage of investment opportunities. Now that he was no longer able to utilise those skills, the income would in all probability diminish.

35     Finally, evidence was given that Alexander and Elliot had not received any income from Sandy Eu’s assets after his death and that the estate had a negative cash flow. This was attributed in part to the fact that Sandy Eu had been concealing his assets at the time of his death. If this is the true state of affairs, (and the defendants were unable to proffer any evidence that contradicted this position) then any argument that Alexander and Elliot, as beneficiaries under Sandy Eu’s will, suffered no loss must necessarily fail.

Multiplicands for Alexander and Elliot

36     Before the AR, the following expenses were claimed by Alexander and Elliot:

ALEXANDER

	Item	Amount
(a)	Singapore American School Fee, 2005 Spring Semester	S$12,000.00
(b)	Singapore American School Interim Semester Programme – Habitat for Humanity	S$3,000.00
(c)	National Outdoor Leadership School Fee, Summer 2005	US$4,938.85 Airfare: S$1,400.00
(d)	2nd National Outdoor Leadership School Fee, 2008, Semester in New Zealand	US$13,650.00 Airfare: S$2,400.00
(e)	National Outdoor Leadership School Fee – US College Credit	US$330.00
(f)	Private Pilot Course	US$7,800.00
(g)	Driving Lessons (30 sessions)	S$2,386.65
(h)	Semester at Sea	US$18,125.00
(i)	Cost of travelling: from US to Singapore and return during the holidays (3 times a year x 4 years) to Singapore to the US and return during holidays (3 times a year x 2 years)	S$36,528.00   S$18,264.00
(j)	Maintenance Order (S$5,900.00 a month) (December 2004 – September 2007)	S$209,582.75
(k)	College Application Fees	US$5,000.00
(l)	Undergraduate Tuition Fees at US University	US$177,597.72
(m)	Living Expenses in the US for Undergraduate Studies Accommodation Board Car Computer Transport/Parking/Insurance Allowance Books	US$33,041.39 US$25,416.45 US$30,000.00 US$6,000.00 US$5,083.29 US$36,599.69 US$2,033.32
(n)	Post-graduate Tuition Fees at US University	US$160,745.00
(o)	Living expenses in the US for Post-graduate Studies: Accommodation Board Computer Transport/Parking/Insurance Allowance Books	US$31,360.55 US$24,123.48 US$2,000.00 US$4,824.70 US$34,737.83 US$1,929.87
(p)	Future Wedding Expenses	S$50,000.00
	Total: S$335,561.40 + US$624,007.56

ELLIOT

	Item	Amount
(a)	Taylor’s Colleges Fees Accommodation: Taylors on A’Beckett	A$16,004.00 A$14,291.20
(b)	Living expenses in Australia for Foundation year	A$30,000.00
(c)	National Outdoor Leadership School Fee	US$5,888.75 Airfare: A$1,800.00 US$2,918.00
(d)	Private Pilot Course	US$7,800.00
(e)	Driving Lessons (30 sessions)	S$2,386.65
(f)	Wilderness Medicine Institute of NOLS Australia	A$1,125.00
(g)	Semester at Sea	US$18,125.00
(h)	Cost of travelling from: Singapore to Australia and return (3 times) to US to visit grandparents and return during holidays	S$21,024.00 A$13,314.00
(i)	Maintenance Order (December 2004 – January 2005)	S$8,610.00
(j)	Maintenance Order during NS (2011 – 2012)	S$145,381.62
(k)	English for Introductory Academic Program	A$2,435.51
(l)	Undergraduate Tuition Fees at Monash University – Year 1	A$38,000.00
(m)	Undergraduate Tuition Fees at Monash University – Year 2-6	A$236,917.00
(n)	Expenses in Australia for Undergraduate Studies – Year 1: Accommodation Meals Application fee/Building & Amenities fee Allowance Health Insurance Premium Computer Books Medical check-up expenses	A$28,303.00 A$5,300.00 A$683.70 A$7,632.00 A$329.00 A$2,500.00 S$198.30 A$420.00
(o)	Living expenses in Australia for Undergraduate Studies: Accommodation Meals Computer Books Car Transport/Parking/Insurance Allowance OSHC/Amenities fee	A$169,119.44 A$31,669.19 A$5,000.00 A$1,646.01 A$25,000.00 A$3,015.84 A$45,603.63 A$4,722.00
(p)	Other Academic Expenses Laboratory expenses Examination fees	A$50,000.00
(q)	Future wedding expenses	S$50,000.00
	Total: S$230,036.08 + US$34,931.75 + A$734.195.01

37     The AR used a multiplier of seven years for Alexander. She awarded him $5,900 per month for that period and, in addition, $12,000 for his Spring semester at the Singapore American School and US$160,000 for his undergraduate tuition fees at a United States’ university. In respect of Elliot, the AR applied a multiplier of ten years. She awarded him the sum of $4,200 a month for that period, A$16,004 in respect of his foundation year fees in Australia, A$2,435.51 for the English introductory programme and A$274,917 for his undergraduate tuition fees in Australia. In respect of both boys, the AR disallowed sums claimed for “non-essential” or “optional” expenses such as fees for the private pilot course, driving lessons and the semester at sea. The basis of the decision was that using her projection of his income, Sandy Eu would not have been able to afford to pay these optional expenses or educational expenses apart from those she had provided for.

38     On the appeal, the defendant put forward various arguments to support a reduction in the sums awarded. The plaintiffs, on the other hand, argued that the award should be increased and in particular, awards should have been made to cover the boys’ post-graduate education expenses and wedding expenses.

39     The awards made by the AR for living expenses were based on the terms of the maintenance order in that the same required Sandy Eu to pay Alexander and Elliot the monthly sums of $5,900 and $4,200 respectively. Whilst the amount awarded in a maintenance order constitutes a good starting point for a court in calculating dependency, it should only be used as the basis of the dependency claim as long as the circumstances of the dependants remain roughly the same as at the time the maintenance order was awarded. In this case, at the time the order was made, Alexander was studying at the Singapore American School and Elliot was studying at ACS (Independent). Since that time, Alexander has entered university in the United States (with effect from September 2007) and Elliot has been studying in Australia (first at Taylor’s College in 2005 and thereafter, from 2006 onwards, at Monash University where he is pursuing a medical course). The issue is whether the court should vary the multiplicand to take into account these changes in circumstance. In my judgment, this question must be answered in the affirmative because once Alexander and Elliot completed their Singapore schooling, their expenses changed a great deal and it would be correct to reflect those changes in the dependency claims instead of relying on a court order the rationale for which has been superseded by events.

40     In assessing dependency, there is no need to show that the dependant was receiving pecuniary benefit at the time of the death; a purely prospective loss is sufficient: McGregor on Damages (17^th Ed, 2003) at para 36-029. A mere speculative possibility of receipt is, however, insufficient: Franklin v The South Eastern Railway Co (1858) 3 H&N 211 at 214. The task for the court is thus to sort out the genuine pecuniary losses from the speculative losses and then to determine whether the deceased would have been able to meet those expenses.

41     The AR accepted, and I agree, that there was sufficient evidence that Sandy Eu had intended to fund Alexander’s and Elliot’s tertiary education. The following pointed to such an intention: (a) Alexander and Elliot testified that Sandy Eu had indicated that he would like them to pursue their education overseas; (b) Sandy Eu had taken the family to New York in 2001 to find out more about the curriculum; (c) Sandy Eu took Elliot to visit various universities in Australia in early December 2004; (d) Sandy Eu had then enrolled Elliot in a foundation course conducted by Taylor’s College, Australia as a preparatory step for entry to Monash University; (e) Sandy Eu received a letter dated 29 October 2004 from Overseas Academic Link Pte Ltd stating the estimated costs of a foundation year in Taylor’s College and thereafter, a medical degree in Monash University; and (f) Mr Shannon Wong testified that Sandy Eu had told him in 2003 that he intended to provide for his children’s education. Based on the evidence, I consider that the amount awarded should include, insofar as Sandy Eu had sufficient income, both the university tuition fees and living expenses for both his sons.

42     The position in relation to the expenses claimed for Alexander’s post-graduate education is, however, different. While there is no doubt that Alexander desires or intends to pursue post-graduate studies, there is scant evidence to show that Sandy Eu intended to fund such education. The only evidence was Alexander’s testimony and that was uncorroborated. On the other hand, Mr Shannon Wong testified that Sandy Eu had planned to set aside funds to provide for Alexander and Elliot’s education for a period of 4 years (i.e. undergraduate education). In addition, the AR had also found that it was premature, at this stage, to infer that Alexander would have been able to enrol for post-graduate degrees. I agree with the AR that the claim for post-graduate education expenses should not be allowed.

43     Having laid out the principles, I must consider each of the sons separately. Alexander remained in Singapore between January 2005 and 9 September 2007 when he completed national service. For the period that he was still in the Singapore American School, say up to July 2005 approximately, his expenses would have remained at the level awarded in the maintenance order as they would have included his school fees. For the first seven months of July therefore, it was reasonable to calculate his dependency at $5,900 per month. Thereafter, he would have entered national service and his expenses would have been reduced by approximately $3,300 a month (taking into account the fact that school fees, school bus fees, school equipment expenses, school uniform expenses, annual school trip fees and tuition classes for various subjects would no longer be required). Therefore, from August 2005 to August 2007, his dependency would have been reduced to $2,600 a month. During this period, Alexander also incurred some extra expenses relating to education and development:

(a)    Singapore American School Interim Semester Programme – habitat for Humanity - $3,000; and

(b)    National Outdoor Leadership School Fee, Summer 2005 – US$4,938.85 and air fare of $1,400.

These additional expenses will be awarded.

44     In September 2007, Alexander entered university in the United States. His estimate of his expenses for the four years of his university education is set out in items (i), (k), (l) and (m) in the table at [36] above.

45     Alexander claimed US$177,597.72 as undergraduate tuition fees at a US university. The AR awarded him US$160,000 for his undergraduate tuition fees. It is a pity that there is no information as to which university Alexander has enrolled in. In his evidence, he presented a table of universities that he was interested in applying to and indicated the fees charged by those institutions. According to the table, the annual academic fees of the various universities ranged between US$21,198 and US$33,740 whilst the living expenses ranged between US$10,965 and US$19,775 per academic year. The most expensive university, Harvard, charged US$50,000 for fees and accommodation and board whilst the cheaper universities charged approximately US$38,000 for the same items. The AR’s figure of US$160,000 must therefore have been an estimation of these expenses. The amount claimed by Alexander works out to US$44,399.43 per year which is about the amount he would have to pay if he went to a university like Boston University (US$45,000) or New York University (US$45,470). I think it fair therefore to estimate Alexander’s annual university fees at the amount of US$44,399.43 claimed by him.

46     As for Alexander’s other expenses during his 4-year university education, there seems to have been some amount of double counting as he has claimed approximately US$33,000 for accommodation as well as US$30,000 for a car. If Alexander stayed on campus, as is usually the case for undergraduates in US universities, then his accommodation and part of his board would be covered by the fees paid to the university and there would hardly be a need for a car. Taking out those items and halving his board to US$12,500, Alexander’s other expenses as claimed (college application fees, computer, transport, allowance and books) would total approximately US$67,216.30 for four years. Alexander should also be allowed the cost of travelling from the US to Singapore and returning during the holidays. The air fares would amount to $6,088 per year (for two trips) on the basis of two semesters per year. This adds up to $24,352 for four years. These figures do not include Alexander’s expenses when he is in Singapore and I would provide a further $3,000 a year for this ($1,000 a month for the three months when he is on holiday in Singapore). This would amount to $12,000 for four years. Totalling up the figures, Alexander’s expenses for the four years of his university education will amount to US$244,814.02 + $36,352. This is approximately $403,573.03 (using S$1.50 = US$1). Alexander’s total yearly expenditure during his university years therefore amounts to $100,893.26.

47     Elliot started attending Taylor’s College in early 2005. His fees and accommodation amounted to A$30,295.20 for that year. He also claimed A$30,000 for his living expenses but since accommodation had already been provided for, I think that that figure should be reduced to A$5,500 in accordance with the estimate given by Overseas Academic Link Pte Ltd (“OAL”), the organisation that was arranging for his entry to the college. In addition, there was the cost of his travel between Singapore and Australia and to the United States to visit his grandparents claimed at $3,504 (3 trips) and A$2,219 (1 trip) per year respectively. If the Australian expenses, which would be incurred for 40 weeks, are converted into Singapore dollars at A$1=S$1.3, then for these items, his total expenses in 2005 would be $52,922.46 and if you add to that another $1,000 a month for 3 months for expenses when in Singapore, then the final total would be $55,922,46 for 2005.

48     In 2006, Elliot started medical school at Monash University. He lived on campus at Richardson Hall. He had to pay A$2,435.51 for an introductory academic program and tuition fees of A$38,000 for his first year at medical school. The other expenses he claimed are set out in item (n) of the table at [36] above. Most of those items (excluding accommodation) totalling A$16,864.70 + $198.30, are unexceptional and reasonable. The claim of A$28,303 for accommodation, however, is excessive for a room provided in a hall of residence in campus. I would allow a maximum of A$10,000 for that. As the university has only two semesters, he would be entitled to two trips home costing a total of $2,336 and one trip to the United States costing A$2,219. On the above basis, his total expenses in 2006 would be A$69,519.21 + $2,534.30. This is approximately $92,909.27 (using S$1.30 = A$1). I would award a further $2,000 for expenses while Elliot was on holiday in Singapore. These expenses are awarded at $1,000 for two months on the basis that the holidays for medical students would generally be short. In total, Elliot’s annual expenses for 2006 would be $94,909.27.

49     Items (m) and (o) of the table at [36] set out Elliot’s expenses for the second to sixth years of his undergraduate education. He calculated the tuition fees as totalling A$236,917 on the basis of a letter from OAL which provided for the fees to increase from A$38,000 in 2006 to A$53,060 in 2011. This estimate contrasted with an earlier letter in which OAL had estimated the tuition fees as being A$34,000 per year for each of the six years. In fact, the evidence showed that the first year fee was A$38,000 as claimed. On that basis, I accept the second letter and the total fees. However, again, the cost of living expenses claimed seems far too high. I would allow A$5,500 per year for food and A$10,000 a year for accommodation. His other expenses would be allowed as claimed. This included the cost of a car which was stated by OAL to be required from his second year onwards so that he could visit clinics and other places in the state of Victoria for the purposes of the course. Elliot would also be entitled to two trips home per year costing a total of $2,336 per year and one trip to the United States per year costing A$2,219. The sum of A$50,000 for other academic fees would not, however, be allowed as there was no document substantiating it. Over the five years, Elliot’s total expenses in Australia would amount to A$410,499.48 + $11,680. I would also award a further S$10,000 for expenses while Elliot was on holiday in Singapore ($1,000 a month for 2 months a year and calculating for five years). In total, Elliot would be entitled to A$410,499.48 + $21,680 for years two to six of his medical studies. This amounts to $555,329.32 (using S$1.30 = A$1) in total and $111,065.86 a year.

50     As for the remaining items claimed (e.g. Semester at Sea fees, National Outdoor Leadership School fees, private pilot course, driving lessons, Wilderness Medicine Institute), the defendant’s position appeared to be that Sandy Eu would not have been able to afford these items (except through using income from his assets, in which case it should not be taken into account in assessing dependency). The defendant did not contend therefore that these items were not reasonable expectations of pecuniary benefits from Sandy Eu, if he could afford them. The inquiry should now turn to whether Sandy Eu would have been able to meet the expenses claimed i.e. both those which I have calculated as being reasonable and the remaining items claimed.

Sandy Eu’s ability to meet expenses claimed

51     As discussed above, a good approximation of what Sandy Eu would have earned after 2004 is S$550,000 per annum. The AR assumed that Sandy Eu’s expenses would have amounted to S$100,000 annually. That was on the low side in view of the evidence of his lifestyle and also the increase in his tax liability that would have followed an increase in income. Even if I estimate his personal expenses at $200,000, however, that would still leave him with $350,000 to maintain the family.

52     Under the maintenance order, Sandy Eu would have to pay Ingrid Hanson $50,400 a year. If the sons’ expenses are calculated in the manner indicated by me above, then at the most, he would have to pay $111,065.86 per year for Elliot and $100,893.26 per year for Alexander. In the most expensive years, therefore, the total maintenance payable would be $262,359.12. The sum of $350,000 would more than cover this and the remaining $87,640.88 would be sufficient to pay for the driving lessons taken by the two boys. The claims for driving lessons are reasonable and, in my view, in the modern context, learning to drive can be regarded as a normal part of the education of middle class children. These expenses should be allowed. I do not think, however, that the claims for the Semester at Sea by each son should be included as dependency because there is no evidence that such course was required as part of the sons’ education. As for the claim by Alexander for the second course with the National Outdoor Leadership School, again there is no evidence how this course in New Zealand would complement or be required in connection with his undergraduate education in the United States. It is disallowed. Also, the claims for the private pilot course undertaken by each boy should be disallowed as that was an optional expense. Finally, as regards the claims for wedding expenses, there is no evidence that such expenses would be met from income rather than from savings. As his sons have inherited Sandy Eu’s capital, they have suffered no loss on this account.

Appropriate multipliers

53     The plaintiffs have appealed against the multiplier applied to Ingrid Hanson (4 years) and the defendant has appealed against the multipliers applied to Alexander and Elliot (7 and 10 years respectively).

(i) Ingrid Hanson

54     Ingrid Hanson stopped working after she married Sandy Eu in 1985. Sandy Eu was the sole breadwinner of the family. Having left the workforce for so long (22 years), it is the plaintiffs’ case that Ingrid Hanson can no longer find gainful employment and should be maintained for the rest of her life (calculated at 25 years).

55     The AR declined to fix the multiplier suggested by the plaintiffs. While the AR found that Ingrid Hanson was entitled, as Sandy Eu’s wife, to sustain a dependency claim under the Civil Law Act, she fixed the multiplier at a mere 4 years. This was because the AR was of the view that Ingrid Hanson should be compensated only for the loss as a wife until the point when her marriage would have been finally dissolved, and this was estimated at about 4 years.

56     I take a different view. Even after the decree absolute had been granted, Ingrid Hanson would have continued receiving maintenance payments from Sandy Eu. These would be over and above the matrimonial assets she received in the division. The critical point to note is that the court, in assessing dependency, inquires into the likely pecuniary support that the deceased would have provided for the dependent if he/she had remained alive. If Sandy Eu had remained alive, Ingrid Hanson would reasonably have expected to be maintained for the rest of Sandy Eu’s life (subject to any material change of circumstances that might have occurred). It was thus erroneous for the AR to calculate dependency only until the estimated date of grant of decree absolute.

57     At this juncture, it should be pointed out that a gaping lacuna exists in the current statutory provisions. Presently, the definition of “dependent” in s 20(8) of the Act does not include a former wife – s 20(8)(a) provides that only the wife or husband of the deceased falls within the definition. This precludes a dependency claim by former wives who may have a subsisting maintenance order against their former husbands and are, in the natural sense of the word, still “dependent” on the latter. There is no rational basis to exclude their claim. The problem posed by this lacuna is magnified on the facts of this case – had Sandy Eu passed away just after the decree absolute had been granted, his former wife, Ingrid Hanson, would not be entitled to anything, whereas since he died just before the decree absolute was granted, Ingrid Hanson remained entitled to maintain a full dependency claim. This gives rise to an inequitable state of affairs – whether a wife or former wife is entitled to maintain a dependency claim cannot hinge on a matter as fortuitous as the date and time of her husband’s death. A claimant who can demonstrate legal dependency must be allowed to maintain her claim.

58     The British Parliament has amended the equivalent UK statutory provisions to cater for a much wider class of dependents. Among the persons defined as dependants under s 1(3) and 1(4) of the Fatal Accidents Act 1976 are “the wife or husband or former wife or husband of the deceased”. A similar amendment to our legislation would solve the existing predicament of ex-wives in Singapore. Any fear that an amendment of this nature to the Act this would open the floodgates would, in my view, be unfounded because the courts will still have to assess the extent of the dependency. Such an assessment would prevent claims by former wives who had not been maintained by their husbands and who were not dependent on their husbands.

59     In the present case, the AR had found in SIC 6185/2005 that Ingrid Hanson was entitled to maintain a dependency claim as Sandy Eu’s wife. The defendant did not appeal from that decision and thus the problem stated above does not arise. Ingrid Hanson’s dependency should then be calculated as that of a wife who was about to be divorced but was expecting to be maintained by her former husband for the rest of his working life. I would use the deceased’s working life rather than the natural life because in dependency cases the loss to the dependents is based on what the deceased would have given them out of his earned income and not out of his capital. Whilst Sandy Eu was a healthy man, it is unrealistic to expect that he would continue, or be able to continue, working into his seventies. It is more probable that Sandy Eu would have stopped work at the age of 65 by which time Elliot would have been qualified as a doctor for two years and Alexander also would have completed his education. That calculation would give Ingrid Hanson a maximum period of dependency of 12 years. This must be discounted to take into account the acceleration of the payment, inflation and other contingencies. I have therefore concluded that the multiplier for Ingrid Hanson should be assessed at 9 years. This would make the total amount awarded to her $453,600.

(ii) Alexander and Elliot

60     The AR awarded a multiplier of 7 to Alexander on the basis that he would have completed his undergraduate studies in 7 years’ time from Sandy Eu’s demise. She awarded a multiplier of 10 to Elliot on the basis that he would complete his medical studies in 8 years’ time and be required to serve national service for 2 years. The AR, however, did not discount the figures assessed to take into account the acceleration of payment, inflation or contingencies. As discussed above, the sons’ dependency figures vary from year to year so it is not appropriate to apply one figure to any multiplier chosen.

61     I award Alexander support for six and a half years and Elliot support for seven years, on the basis that his studies in Australia would take a total of seven years and thereafter, any dependency during housemanship or national service would be partial, at the most, since as a qualified doctor, he would receive income from these activities.

Summary

62     The following table summarises the awards made in respect of all the plaintiffs:

Party	Multiplicand/ Expenses awarded		Multiplier/ Time Period	Calculation of dependency	Value of dependency
Ingrid Hanson	$4,200 per month		9 years	$4,200 x 108	S$453,600
	Bereavement	$10,000	-	$10,000	S$10,000
	TOTAL (INGRID HANSON): S$463,600
Alexander	$5,900 per month		Jan 2005 to July 2005	$5,900 x 7 = S$41,300	S$41,300
	Singapore American School Interim Semester Programme- Habitat for Humanity	$3,000	Aug 2005	$3,000	S$3,000
	National Outdoor Leadership School Fee (Summer 2005)   Airfare	US$4,938.85           S$1,400	Summer 2005	US$4,938.85 + S$1,400	US$4,938.85 + S$1,400
	$2,600 per month		Aug 2005 to Aug 2007	$2,600 x 24	S$62,400
	Undergraduate Fees at United States University (includes accommodation and part of board)	US$44,399.43 per year	Sept 2007 to June 2011	US$44,399.43 x 4 = US$177,597.72	US$177,597.72 + US$12,500 + US$6,000 + US$5,083.29 + US$36,599.69 + US$2,033.32 + US$5,000 + S$24,352 + S$12,000
	Board	US$12,500		US$12,500
	Computer	US$6,000		US$6,000
	Transport/ Insurance	US$5,083.29		US$5,083.29
	Allowance	US$36,599.69		US$36,599.69
	Books	US$2,033.32		US$2,033.32
	College Application Fees	US$5,000		US$5,000
	Airfare from US to Singapore and return during holidays (2 times a year)	S$6,088 per year		S$6,088 x 4 = S$24,352
	Expenses in Singapore	S$3,000 a year (S$1,000 a month for 3 months)		S$3,000 x 4 = S$12,000
	Sub-total for expenses for undergraduate studies: US$244,814.02 + S$36,352
	Driving Lessons	$2,386.65	-	S$2,386.65	S$2,386.65
	TOTAL (ALEXANDER): S$146,838.65 + US$249,752.87
Elliot	Taylor’s College Fees	A$16,004	2005	A$16,004	A$16,004 + A$14,291.20 + A$5,500 + S$3,504 + A$2,219 + S$3,000
	Accommodation	A$14,291.20		A$14,291.20
	Living Expenses (for 40 weeks)	A$5,500		A$5,500
	Airfare for Singapore to Australia and return (3 trips)	S$3,504 (S$1,168 per trip; 3 trips)		S$1,168 x 3 = S$3,504
	Airfare for Singapore to United States and return	A$2,219		A$2,219
	Expenses in Singapore	S$3,000 (S$1,000 a month for 3 months)		S$1,000 x 3 = S$3,000
	Sub-total for expenses for 2005: A$38,014.20 + S$6,504
	English for Introductory Academic Programme	A$2,435.51	2006	A$2,435.51	A$2,435.51 + A$38,000 + A$10,000 + A$5,300 + A$683.70 + A$7,632 + A$329 + A$2,500 + S$198.30 + A$420 + S$2,336 + A$2,219 + S$2,000
	Undergraduate Tuition Fees for Year 1	A$38,000		A$38,000
	Accommodation	A$10,000		A$10,000
	Meals	A$5,300		A$5,300
	Application Fee/ Building & Amenities Fee	A$683.70		A$683.70
	Allowance	A$7,632		A$7,632
	Health Insurance Premium	A$329		A$329
	Computer	A$2,500		A$2,500
	Books	S$198.30		S$198.30
	Medical Check-up expenses	A$420		A$420
	Air-fare from Singapore to Australia and return (2 trips)	S$2,336		S$2,336
	Air-fare from Singapore to US and return (1 trip)	A$2,219		A$2,219
	Expenses in Singapore	S$2,000 (S$1,000 a month for 2 months)		S$1,000 x 2 = S$2,000
	Sub-total for expenses for 2006: A$69,519.21 + S$4,534.30
	Undergraduate Tuition Fees for Years 2 to 6	A$236,917	2007 up to and including 2011	A$236,917	A$236,917 + A$50,000 + A$27,500 + A$5,000 + A$1,646.01 + A$25,000 + A$3,015.84 + A$45,603.63 + A$4,722 + S$11,680 + A$11,095 + S$10,000
	Accommodation	A$10,000 per year		A$10,000 x 5 = A$50,000
	Meals	A$5,500 per year		A$5,500 x 5 = A$27,500
	Computer	A$5,000		A$5,000
	Books	A$1,646.01		A$1,646.01
	Car	A$25,000		A$25,000
	Transport/ Parking/ Insurance	A$3,015.84		A$3,015.84
	Allowance	A$45,603.63		A$45,603.63
	OSHC/ Amenities Fee	A$4,722		A$4,722
	Airfare from Singapore to Australia and return (2 trips per year)	S$2,336 per year		S$2,336 x 5 = S$11,680
	Airfare from Singapore to US and return (1 trip per year)	A$2,219 per year		A$2,219 x 5 = A$11,095
	Clothes and Singapore expenses	S$2,000 per year (S$1,000 a month for 2 months)		S$2,000 x 5 = S$10,000
	Sub-total for Years 2 to 6 of undergraduate studies: A$410,499.48 + S$21,680
	Driving Lessons	S$2,386.65	-	S$2,386.65	S$2,386.65
	TOTAL (ELLIOT): A$518,032.89 + S$35,104.95
GRAND TOTAL: $645,543.60 + US$249,752.87+ A$518,032.89 Converted to SGD at S$1.3 = A$1 and S$1.5 = US$1  »  $1,693,615.66

Conclusion

63     In the result, apart from the award for bereavement, the awards below are set aside. Instead the plaintiffs are awarded a total of $1,693,615.66 with interest at 3% per annum to run on the loss of the dependency from the date of death to the date of the trial. As both parties have been partially successful in their respective appeals, I will hear the parties on costs.