Judgment

KOH GET KEE and TAN JOU SIM,

Administrators of the Estate of TAN AH HOCK, deceased

V. LOW BENG HAI AND ANOR

Headnotes:

--

1. Anns v Merton London Borough Council < 1978 > AC 728.
2. Hill v Chief Constable for West Yorkshire < 1989 > AC 53.
3. Bolton v Stone < 1951 > AC 850.
4. McKew v Holland & Hannen & Cubbits < 1969 > 3 AER 1621.
5. Re Polemis & Furness Withy & Co Ltd < 1921 > 3 KB 560.
6. The Wagon Mound No.1 < 1961 > AC 388.
7. Keppel Bus Co Ltd v Sa'ad bin Ahmad < 1974 > 1 MLJ 191.
8. Marshall v Osmond < 1983 > 2 AER 225.
9. Murphy v Brentwood District Council < 1990 > 2 AER 908.
10. Donoghue v Stevenson < 1932 > AC 562.
11. Ilkiw v Samuels < 1963 > 2 AER 879.
12. Lloyd v Grace Smith & Co < 1912 > AC 736.
13. Ancell & Anor v McDermott < 1993 > 4 AER 355.
14. Canadian Pacific Railway Co v Lockhart < 1942 > AC 591.
15. Rigby v Chief Constable of Northamptonshire < 1985 > 2AER 985.
16. Loke Yoke Ying v Sim Kok Lee < 1991 > 2 MLJ 104.
17. Jeya v Lui Yew Kee < 1992 > 1 SLR 534.
18. Lee Ngiap Hoon v Teo Sin < 1992 > 1 SLR 831.
19. Cookson v Knowles < 1978 > 2 AER 604.
20. Chan Heng Wah v Peh Thiam Choh < 1988 > 1 MLJ 74.
21. Lim Fook Lau v Kepdrill International Incorporated SA < 1993 > 1 SLR 917.
22. Teo Sing Keng & Anor v Sim Ban Kiat (unreported).
23. Salmond on Torts 20 ed p 457.

Judgment:

Cur Adv Vult

JUDGMENT

The facts

In 1985 Tan Ah Hock (the deceased) was an insurance agent with Prudential Assurance Singapore Pte Ltd (Prudential) married to the first plaintiff Koh Get Kee with three children. At the material time the first defendant (Low) was a detective sergeant attached to Queenstown Police Station (the station) and was in charge of the interrogation team.

On 23 September 1985 Low reported for work as usual. After completing his duties for the day he decided he would keep a pre- arranged appointment he had made with some friends. He therefore proceeded to Campbell NiteClub (the Club) at Middle Road at between 7-8pm where he met amongst other friends his girlfriend Issa Chin (Issa) who was an employee of the Club. Low stayed at the Club consuming brandy with water until about 10pm. He then decided to go for dinner and as he was leaving Issa said she would join him. The couple proceeded to Orchard Towers and after they had had dinner at a restaurant there they went to a nightclub in the building called Peyton Place. At Peyton Place they met the deceased who was Low's schoolmate. The deceased joined Low and Issa at their table, drinking beer. Low then suggested to the deceased that they should go and listen to a singer at the Mandarin Hotel (the Hotel) at Orchard Road so the three of them left for the Hotel in the deceased's car.

At the Hotel they went to the lobby bar called Act 1. There, Low and the deceased drank whisky with water and listened to the singer that Low had recommended. At about 1.00am Low left the Hotel with the deceased. Issa declined first Low's and then the deceased's offer, to send her home. Both Low and Issa declined the deceased's invitation to go for supper. The deceased offered to send Low home so both he and Low walked towards the carpark at Orchard Link, holding onto each other with one person's arm around the other's shoulder.

At the carpark the deceased could not find his car and became very excited, Low suggested that they look for the car together. When they arrived at the end of the service road leading to Orchard Link, they stopped. Low then felt that his left leg to which he had strapped his service revolver (a Smith & Wesson), had a lighter weight. He looked down, saw his revolver on the road and bent to retrieve it. As he was straightening up with the revolver in his right hand, the deceased who had been standing in front of him, came forward and held Low's right hand with his own. Low attempted to pull back his hand. At that moment a shot rang out and the deceased collapsed in front of Low. The deceased died instantly from that gunshot wound which bullet according to the subsequent post mortem done by the department of pathology, penetrated his skull.

Low was remanded, charged with murder under s 302 of the Penal Code and was tried but was acquitted of the offence in criminal case no 23 of 1987 (the criminal trial) in September 1988. He was reinstated to his position in the police force from which post he had been suspended pending the outcome of the criminal trial.

The claim On 29 October 1987 whilst Low was still under remand at Queenstown Remand Prison pending the criminal trial, the plaintiffs commenced this action for damages under ss 8 and 12 of the Civil Law Act, on behalf of the estate and dependents of the deceased. In the statement of claim, the plaintiffs alleged that the deceased was killed due to the negligence of Low and the second defendant, the former being the servant or agent of the second defendant by virtue of his employment with the Singapore Police Force. Against Low such negligence was particularised inter alia as follows: 1. having a loaded service revolver, a dangerous firearm, whilst he was off duty and on a drinking spree; 2. failing to take any or any reasonable precaution to observe the safety procedures in the handling and use of the firearm; 3. failing to take any or any reasonable precaution to see that the firearm was on a 'safe' position or otherwise to ensure that it would not discharge accidentally; 4. strapping his holster to his lower leg and placing his firearm in it; 5. taking or allowing the firearm to fall out of the holster instead of ensuring that it was secured; 6. failing to take his finger out of the trigger guard of the firearm and or otherwise handling the firearm incorrectly; 7. unloading the firearm whilst under the influence of alcohol; 8. pointing the firearm in the direction of the deceased; 9. squeezing the trigger thereby discharging a shot which killed the deceased.

The particulars of negligence alleged against the second defendant were as follows: a. failing to provide any measures to ensure that the first defendant would not be in possession of a dangerous firearm whilst he was off duty; b. allowing the first defendant to be in possession of a dangerous firearm whilst off duty; c. failing to ensure that police officers do not carry dangerous firearms whilst off duty and whilst under the influence of alcohol; d. failing to provide any or adequate safety rules or regulations to police officers in possession of dangerous firearms whilst off duty; e. failing to ensure that police officers comply with the rules or regulations as to the prescribed mode or manner of carrying dangerous firearms; f. failing to provide any or any adequate enforcement measures to ensure that all rules or regulations relating to dangerous firearms are complied with.

In the alternative the plaintiffs alleged that the second defendant is liable at law for the fatal shooting of the deceased by Low: (i) as the second defendant knew or ought to have known that there was a risk or danger to the lives of ordinary members of the public by allowing police officers in particular Low to be armed with a dangerous firearm whilst off duty and or under the influence of alcohol; (ii) under the provisions of ss 3(1)(c)(iv) and 30 of the Arms and Explosives Act Cap 13; (iii) under the provisions of ss 5 and 14 of the Government Proceedings Act Cap 121.

The plaintiffs contended that as a result of the fatal shooting the deceased lost his normal expectation of life and his estate and dependants thereby suffered loss and damage.

In his (amended) defence Low 1. denied that the death of the deceased was caused by any negligence on his part; 2. contended that the discharge from his service revolver was caused solely alternatively contributed to by the rash and or negligent act of the deceased particularised inter alia as follows; a. reaching out for the service revolver, attempting to remove it from Low's lawful possession; b. resisting Low's attempts to retain possession of the revolver; c. failing to release or keep away from the said revolver knowing that the same was only meant for use by Low in the course of his employment as a police officer; d. placing his finger in the trigger guard of the revolver; e. squeezing the trigger thereby discharging a shot. 3. asserted in the further alternative that the deceased whilst under the influence of alcohol and with full knowledge of the risk, voluntarily consented to and accepted the risk of injury and damage to himself and waived any claim occasioned thereby.

In his (amended) defence the second defendant: a. denied that the death of the deceased was caused or contributed to by the negligence of the government, its servants or agents as alleged; b. if, which was not admitted, Low did commit the acts alleged and particularised by the plaintiffs, he was acting outside the scope of his employment as a police officer; c. denied that the government was negligent in allowing Low to carry a firearm whilst off duty. In the interest of public safety and the maintenance of public order all police detectives like Low are empowered to carry firearms at all times to enable them to respond effectively should a breach of public safety/order occur; d. averred that the conduct of all police officers including Low's is governed by regulations promulgated by the Commissioner of Police referred to as Police General Orders (PGO) which regulations must be strictly complied with by all police officers and breach of which constitute a disciplinary offence and in certain cases criminal offences. There are numerous provisions in the PGO relating to the carrying and use of firearms which are designed to ensure personal responsibility on the part of the user of the firearm so as to protect the public and the integrity and reputation of the Singapore Police Force; e. to date there has been no incident or occurrence which gives the government reason to believe that the provisions of the PGO relating to the carrying or use of firearms by police officers would not be adequate to achieve the purposes for which they were designed; f. Low was fully aware of the provisions of the PGO and that he was under a duty to comply with them; g. up to the material time Low had no record of having committed any misdemeanour during his career as a police officer. There was therefore no reason for the government to believe or suspect that Low would while under the influence of alcohol breach the PGO such as would result in the death of the deceased.

At the commencement of the trial the court was informed by counsel for the plaintiffs that the parties had reached agreement on the claim for (i) funeral expenses ($3,000), (ii) for extracting grant of probate ($1,521) and (iii) for loss of expectation of life ($7,500). The issues for the court's determination therefore relate to liability and the quantum for, general damages.

The evidence The witnesses called by the parties were in the main those who had given evidence at the criminal trial.

I shall first review the evidence relating to liability. One of the plaintiffs' witnesses was Dr Chong Yoon Yee (PW2). Dr Chong at the material time was a medical officer who was on duty at the Accident & Emergency unit of Tan Tock Seng Hospital to which unit Low was brought after the shooting. Dr Chong said:- a. he examined Low at about 2.42am on 24 September 1985 to determine his alcohol level; b. he found Low's speech to be co-ordinated and his gait to be steady although Low smelled heavily of alcohol; c. when he took Low's blood alcohol content it was 198 mg per 100 ml of blood; d. in his medical report dated 25 October 1985 he described Low as 'flushed' with blood-shot eyes and the blood vessels of his skin were dilated; e. he was surprised to find that Low showed no symptoms of lack of co-ordination with the amount of alcohol in his blood stream, he surmised that Low had a high tolerance of alcohol as the average person and even chronic alcoholics, would have passed out with 198 mg alcohol in the blood level -- he had expected Low's blood alcohol content to be only 100-120 mg; f. he concluded that Low's blood alcohol level at the time of the shooting (which was about one hour 45 minutes earlier) would have been higher at around 225 mg as, detoxification would have started at about 1.04am after Low's last drink; g. he agreed that he could not say with a blood alcohol level at 225 mg at 1.04am, whether Low then had a slurred speech and unsteady gait.

Asp Boey Hun Chooi (PW6) with 28 years of experience with the Force Armament Branch of the Singapore police force gave evidence which being material should be set out in some detail, he said: 1. the ankle holster worn by Low has never been issued by the Singapore police force; the force issues hip or shoulder holsters. Therefore police officers who wish to use ankle holsters have to purchase their own. He is aware that ankle holsters are quite widely used by police officers. To his knowledge the force does not issue a revolver to an officer without a holster; 2. he is aware of PGO D34 (exh P2) on the general safety precautions to be observed by every police officer in the handling of firearms. He is also aware of PGO C10 which makes every police officer responsible for personal issue weapons; 3. loading and unloading a weapon is done at a loading or unloading bay which is found in every police station in Singapore. Unloading of a weapon should not be done in a public place unless there is reason to do so but he could not think of any circumstance where a police officer would have to do so. To unload a weapon in a public place all that is required is to swing out the cylinder, there is no need to load or unload the weapon to check; breaking a gun is a split second action that can be done with only one hand; 4. he himself did not find it necessary to carry his personal issue every day and he kept his weapon at his branch. Equally it is not compulsory for officers to deposit their personal issue weapons at the armoury every day after their assigned duties unless they are on vacation, away from Singapore or attending courses. Under no circumstances must a police officer lose possession of his personal issue revolver to any unauthorised person; 5. it is an accepted safety precaution that the trigger/index finger should not be placed inside the trigger guard unless one intends to discharge the weapon; 6. Low's gun which he examined at the criminal trial showed no external damage -- neither were there noticeable scratch marks; this was probably because the ankle holster was very low being about 6 inches from the ground; 7. para 19 of exh P2 sets out the 3 ways in which a police officer may not must, carry a weapon; 8. to discharge a shot a minimum pressure of 13 lbs must be applied to the trigger; 9. if an ankle holster is in good condition it is unlikely to become unsecured or unbuttoned by the action of one leg brushing against the other in the process of walking, it requires considerable force to undo the snap-on button but a revolver may fall out if the ankle holster is not buttoned; 10. if the deceased had grabbed Low's weapon with both hands and had clasped the cylinder with his fingers, the trigger could not have been pulled as the cylinder cannot rotate. If a shot had nonetheless been discharged, there should normally be powder marks on the deceased's hands; 11. generally alcohol and firearms do not mix but it does not mean that an officer who goes drinking will get drunk and that he cannot keep his personal issue revolver; 12. at the criminal trial he had informed the court that he had not known of any case where a Smith & Wesson revolver like Low's had been accidentally discharged by falling to the ground or otherwise.

Dsp Lim Kwang Meng (Lim) who was also a witness at the criminal trial was an inspector with CID in 1985 and in charge of investigating Low's case. He was of the view that if he was a member of an interrogation team he would carry his weapon even if he was off duty as a police officer is supposed to be ready and prepared at all times.

I next turn to the evidence of Low who was the only witness for his own defence. He said: 1. before the deceased was shot, he was not trying to unload his revolver as Sergeant Heng (PW3) had told the court he was doing. If that was what he had said to Sergeant Heng it was said when he was not in a proper state of mind as he was in a turmoil, his good friend the deceased had been injured and he was handcuffed when the sergeant asked him what had happened. In any case there was no reason for him to unload the revolver; 2. when he felt the revolver had fallen to the ground, his first reaction was to retrieve it and he used his right hand to pick up the gun by the butt. When the deceased came near to him, he pushed him away before bending to pick up the gun. In that split second when he was trying to pull his right hand away from the deceased's grip and move away he felt a jerk and a shot rang out; 3. during the process of picking up the gun it did not occur to him to unload the weapon. In any event when the deceased grabbed his hand there was no time for him to push out the gun's thumb piece and cylinder and the deceased's hands also obstructed him; his hand was not in the trigger guard; 4. he did not know how, why or when the button came off but he did not unbutton the ankle holster at all that night. Before that, there was one occasion some 5-6 months earlier, when his revolver dropped off from the same holster, this was at the station when he was either going up or coming down the stairs, he discovered that the holster was unbuttoned; 5. he was issued the revolver by the CID in 1978 but he was not issued a holster, neither was he told to get his own holster. He obtained an ankle holster because he had tried other methods including the hip holster, and he found the ankle holster the most suitable way for carrying as well as for drawing the gun. There are other plain clothes detectives who use ankle holsters like the one he was using. He did not receive specific orders not to use an ankle holster to carry his revolver.

Under cross-examination by state counsel Low said that (i) checking that the gun was not loaded every time he picked it up had become second nature to him because it had been drilled into him by his police training and he felt his responsibility to the gun was heavier than to his own family; (ii) he could not recall whether he had received a booklet similar to exh P2 but he was aware of the basic requirements for safety of a gun; (iii) before his being charged for the deceased's death he had had no adverse reports made against his record with the police department save for a previous warning for slow action on some investigation files; (iv) there may have been occasions where he consumed large amounts of alcohol but even then he was able to take care of himself; (v) his duties at the station required him to be on standby for certain operations but he was not on standby on the evening of 23 September 1985; (vi) at 1.00am on 24 September 1985 he was not drunk or incapable of taking care of himself, he could comprehend what the deceased was saying to him but he could not say whether the deceased was drunk or tipsy.

Plaintiffs' counsel adduced the following testimony from Low: 1. he disagreed with Asp Boey's statement that alcohol and firearms do not mix as he had been in possession of a revolver when drinking and he was able to take care of himself -- he had seen other police officers doing likewise. He further disagreed with Asp Boey's statement that it was not necessary for a police officer to have a personal issue revolver with him all the time; 2. he started drinking in middle/late 1970 after joining the police force. He had no fixed pattern but he would go out 3-4 times a week to drink, he would normally drink beer but would switch to other drinks such as whisky and brandy when he was with friends. His peers and subordinates were aware of his visits to pubs and lounges; 3. he agreed that one is not supposed to drink while on active duty and that drinks impair faculties and one's judgment;

4. he confirmed that when he interrogates suspects or accused he is not supposed to have his gun with him, he would keep his revolver under lock and key for his own as well as the safety of those interrogated; 5. since knowing Issa in April/May 1985 he had visited the Club once or twice every week during which visits he preferred to drink brandy rather than beer as it was cheaper to order brandy by the half or full bottle than to order beer by the glass; 6. although he was going to the Club to drink with friends that night, it did not occur to him to leave his revolver at the station armoury because it was not necessary. Further on the following morning he had arranged to meet one of his detectives at the Singapore Boys' Home to escort remanded juveniles either to court or to the station. He acknowledged that there would have been no difficulty in keeping his revolver at the armoury and in retrieving it before proceeding to the Home; 7. he disagreed that on hindsight it would have been more prudent for him to have left his revolver at the station's armoury even if he had known beforehand (which he did not), that he was going pub crawling. He was not going to drink to such an extent that he could not control himself. Unless he was on leave he would not allow himself to drink to such a state; 8. he conceded he had drunk heavily on 23/24 September 1985 and that he had mixed his drinks; 9. it did not occur to him to ask for a police issue holster. He did not tell his superiors that he had an ankle holster and he could not say whether they knew he had one. He was also not queried why he did not obtain a police issue holster; 10. he denied that he was 'a bit high' that night and that was why he was unable to say how or why his revolver fell out; 11. he felt the effects of alcohol after he left Peyton Place (at about 11pm), he felt 'slightly tipsy and a bit of warmness' but he was still in control and his degree of consciousness was still good; 12. he denied that the reason he did not notice where the deceased had parked his car at the Hotel was because of the effects of alcohol -- he was not paying attention as they were conversing; 13. he and the deceased were holding each other and were 'toing and froing' because they wanted to be together and not on account of the effects of alcohol; 14. he did not want to release his hold on the deceased who was attempting to pull away and a scuffle could then have ensued; 15. he could not say whether in a normal situation without the consumption of liquor he would not have done what he did on 24 September 1985; 16. he denied that his finger not the deceased's must have been in the trigger guard when the shot went off but conceded that if, as he said, the barrel had been pointing to the ground instead of at the deceased, the gunshot would not have hit the deceased.

Dr Wee Keng Poh (DW2) who had done the autopsy on the deceased testified that there were no injuries on the deceased's hands but he took swaps from the hands to ascertain whether there were traces of gunpowder (which are invisible to the naked eye); he handed the swaps to the investigating officer for submission to the department of scientific services. If traces of gunpowder were found, a possible conclusion would be that the deceased's hands were in close proximity to the gun when it was discharged. Powder tattooing would have been present on the skin of the deceased's hands if the range of fire had been about one foot and the area affected would have been in front of the barrel surrounding the entry of the bullet wound, outside that range there would only have been traces of gunpowder. There would only have been burnt marks if the deceased had been directly holding the barrel of the gun.

Dsp Lim on his recall to the witness stand told the court that the swaps taken from the deceased's hands were sent to the department of scientific services but he was told by their officer that the same were not suitable for analysis and tests would not reveal any specific results. In the event no tests were done on the swaps taken.

The second defendant called several witnesses from the police force. One of them was police superintendent Heng Chee How (Heng) who is also the director of manpower (since 1 September 1992), he said: 1. Low had no adverse reports made against his force record; 2. Low is not permitted to get drunk in a public place to such an extent as to be incapable of taking care of himself. Should Low be convicted of an offence under s 18 of the Miscellaneous Offences (Public Order and Nuisance) Act he may be dismissed under s 32 of the Police Force Act; 3. the police force takes a serious view of any breach of the orders it makes and a police officer is subject to disciplinary proceedings and is liable to be dismissed for loss of firearms.

Under cross-examination by counsel for the plaintiffs Heng (DW3) a. agreed that in emergency cases the police force can respond in a matter of minutes without having to call for assistance from off duty police officers, the fact that he has no weapon with him does not mean that an off duty officer cannot intervene where a situation calls for him to do so and he can always call for assistance if need be; b. said he was aware that members of the police force used ankle holsters; c. said that the police force does not prohibit drinking of alcohol per se but only that an officer should not drink to the extent that he cannot take care of himself or of his weapon but it is impossible for the force to ensure that none of its officers ever get drunk or to check on an officer continuously. Another witness for the second defendant was Dsp Yeo Poh Teck (Yeo), the head of investigation of the station between August 1981-July 1982. He countersigned the staff confidential report of Low which stated that the latter's performance was generally good. Apart from one occasion when he issued a warning letter to Low for late submission of investigation papers Yeo (DW4) had no complaints about Low who he considered to be one of the better officers under his supervision. Yeo was aware from official functions and occasional dinners that Low consumed alcohol but he had never seen Low drink to the extent of being incapable of taking care of himself. He agreed that he would not permit an officer who had gone on a pub crawl to interrogate a suspect if the person cannot take care of himself or to drive a vehicle and that alcohol and firearms do not mix. He himself did not carry his personal issue everyday, he carried it (in the pocket or in a hip holster) only when he went out on raids or had to do escort duty. The armoury at the station is open 24 hours a day for the purpose of withdrawing or depositing arms. He knew that there were officers who carried their personal issue revolvers in ankle holsters. One possible reason why Low's kit card (exh 2D1) did not show that a holster had been issued to him could be because there was no personal issue of holsters to junior officers at that point in time. On re-examination Yeo said that if an off duty officer who had been drinking is recalled for duty he would assess whether the officer is drunk or is capable of taking care of himself before he decides whether to assign the person any duty; it was not so much the amount of alcohol that an officer had consumed that would be the determining factor as the person's tolerance to alcohol.

Low's other superior who was the head of investigations at the station from 1982-85 namely acting Dsp Syed Abdul Kadir Alsree (Alsree) also testified to Low's good character saying he signed the staff confidential report (2DB8) on Low describing him as a responsible, reliable and diligent worker and an asset to the police force. He had no reason to suspect/believe Low was not capable of handling or taking care of firearms or that Low would indulge in alcohol to the extent that he would be rendered so incapable. Under cross-examination Alsree (DW5) said a. he used a pocket holster (not a police issue) for his revolver; b. he had seen Low at official functions and was aware that Low consumed alcohol but not the extent of Low's drinking; c. he was not surprised that Low although a detective had never attended a detective ('J') course as most of his investigating officers at that time did not attend the course.

Another witness for the second defendant was Inspector Koh Beng Geok (Koh) who is and has been in charge of the field training of police trainees and officers since 1975. Koh (DW6) testified that Low like all police officers must undergo and pass a basic training course which course includes practice as well as lectures on the handling of firearms. Further all police officers are required to go for annual shooting tests at the Police Academy and it is drilled into them that when they draw a weapon their fingers must be placed outside the trigger guard until they are ready to fire. An officer who does not comply with safety procedures or is unable to handle a firearm safely will be reported to his superiors. In Low's case the records showed that he had attended all his annual shooting tests since 1975 until his arrest but he had failed 3 times. He explained that the Academy's instructors do not use exh P2 to teach firearms training to recruits --- the manual that they use deals mainly with the techniques of weapon handling, safety rules, range discipline and firing stances. An officer who is under the influence of alcohol would be disciplined and would not be allowed to shoot but he had never encountered a case where an officer who came for a shoot smelt of alcohol. He left his revolver at the Academy's armoury before he went off duty everyday. When he carried it he used a hip holster issued by the police force.

Under cross-examination Koh confirmed that for unloading purposes there is a loading/unloading bay at every station and when unloading, the barrel of the gun should be pointed towards the ground at an angle of 45~. Koh opined that when retrieving a gun (by the butt) the first consideration is the safety of the owner followed by the safety of the gun.

Teo Hong Guan (Teo) a deputy assistant commissioner of police testified that although an ankle holster is not a police issue police detectives including Low are allowed to carry their revolvers in ankle holsters as long as the same are adequate and can safely secure the weapons. There was no reason for the police force to suspect or believe that ankle holsters of the type used by Low were not suitable or were unsafe. Teo (DW7) confirmed that the police force authorised a police detective like Low to carry his personal issue revolver when he was off duty as long as he could take proper care of the weapon. Detectives are a special breed of people and it is left to them to look after the safety and security of the firearms issued to them. Similarly it is left to the discretion of a police officer who has consumed alcohol whether he can take care of his firearm and how he carries the firearm; in his case he carried his revolver in a clutch bag. He agreed that an officer should not bring his gun with him when he goes drinking as even in an emergency the off duty officer can call for assistance without direct intervention.

Finally there is the evidence of Lim Soo Gee (Lim) another assistant commissioner of police in charge of special operations whose responsibility covers formulation of arms policy. His evidence in the main supported that of Teo. Lim (DW8) clarified that police sergeants like Low would not have attended the "J' course as it is meant for constables or detective constables. He

a. confirmed that there was nothing in the PGO or Force Orders that was similar to s 70 of the Road Traffic Act so as to prohibit an officer from drinking and driving or from carrying a revolver and drinking; b. said that he himself used an ankle holster for his revolver although at times he carried the same in his pocket. When he was off duty he left his revolver at the armoury; c. agreed that every drunkard says he can handle himself and that alcohol and firearms do not mix; d. agreed that it was strange that for 8-9 years Low's holster had not be checked and that Low had never been told that he could deposit his revolver in the armoury; e. disagreed that there were no adequate safeguards in the PGO to protect the public against officers who drink in excess and possess firearms. PGO are voluminous documents which deal with general matters and would not cover areas which are of common knowledge to officers such as what is illegal or covered by other areas of the law.

The submissions I shall now review the submissions tendered by the parties on the issue of liability. For Low his counsel submitted: 1. there is no express prohibition against Low carrying his revolver when he is off duty. This is supported by the evidence of the various representatives of the police force namely Boey, Heng, Lim and Teo. Further the nature of Low's work requires him to carry the revolver with him at all times as if he fails to respond to an emergency outside his assigned hours of duty he will be subject to disciplinary action; 2. as Low did not breach any rule or regulation or law in having his revolver with him that night/morning he did not owe a duty to the deceased or to members of the public not to have a revolver on him when he was off duty. Low was therefore not negligent as what he did was (i) permissible (ii) necessary in the course of his duty (iii) done by other police officers/detectives and (iv) customary to him;

3. in the event that the court held that there was a duty of care owed by Low to the deceased, there were special policy factors which negated such duty as stated by Lord Wilberforce in Anns v Merton London Borough Council < 1978 > AC 728. The scope of the duty of care is limited if there are policy considerations (see House of Lords' decision in Hill v Chief Constable for West Yorkshire < 1989 > AC 53). In this case public policy demands that plainclothes detectives be permitted to be armed whilst off duty, if harm ensued as a consequence liability on the part of the detectives should be negated; 4. Low was never instructed and there is no directive, that police officers who go on a drinking spree cannot carry their weapons, neither does the police force specifically disallow drinking. Therefore Low was not negligent in having his gun with him when he went drinking on 23 September 1985; 5. Low had a high tolerance to alcohol and he was not drunk that night despite the amount of alcohol he had consumed; 6. Low was never issued a holster for his revolver and this is supported by his kit card (exh 2D1) entries. He used an ankle holster because he found it to be the most suitable, ankle holsters were widely used by police officers notwithstanding they were not a police issue. As ankle holsters were not disallowed Low was not negligent in carrying his revolver in such a holster; 7. even if there was a duty owed by Low to the deceased there was no breach of that duty as Low had behaved reasonably. There is no concrete evidence that Low unloaded the revolver that night and Low had denied that he did even if as was alleged, he said so to Sergeant Heng in his trauma after the shooting; 8. there is no evidence that Low allowed his revolver to fall out - he had no explanation why it fell out but that is not tantamount to negligence. Once the revolver fell out, there was nothing else for Low to do but to pick it up and his reaction in picking up the revolver by the butt as he had been trained to do, was not affected by his alcohol consumption. He did not 'break' the gun in the process because he had not been trained to do so, it was also not necessary as he neither expected nor anticipated that the deceased would grab the gun or lunge at him -- neither was he trained to cover the trigger guard with his palms whilst retrieving. No other avoiding action could have been taken by Low under the circumstances as there was no time; 9. Low's gun was pointed at the deceased as a result of the deceased trying to grab the gun, there is no evidence that Low squeezed the trigger. It was the deceased who had his thumb in the trigger guard and squeezed the trigger when the deceased grabbed Low's hand, Low's evidence is corroborated by Dr Wee and Asp Boey. There is no conclusive evidence of the presence or absence of gunpowder from the deceased's hands since no tests were done on the swabs taken therefrom; 10. where there is only a remote possibility of injury no precaution would be taken for one must guard against reasonable probabilities not fantastic possibilities, if the risk is slight Low may have acted reasonably although he did nothing to prevent the harm (see Bolton v Stone < 1951 > AC 850). There is no evidence that harm or injury had resulted to members of the public as a result of police officers being armed whilst off duty and on drinking sprees; 11. the deceased's own conduct was the decisive cause of the injury as 'but for' the deceased grabbing Low's hand which held the revolver no shot would have been fired; 12. even if Low was negligent the acts of the deceased interposed between such negligence and the injury which he sustained so as to break the chain of causation (McKew v Holland & Hannen & Cubbits < 1969 > 3 AER 1621); 13. the deceased had assumed the legal risk of Low's acts under the maxim 'volenti non fit injuria'-- he had consumed a substantial amount of alcohol that night although Low could not say that he was drunk; 14. even if the court held that there was a duty owed by Low to the deceased and there was a breach of that duty which resulted in the latter's demise, there was contributory negligence on the part of the deceased in his interfering with and attempting to remove the gun from, Low. On apportionment of liability, the deceased was 80% liable and damages awarded to the plaintiffs should be accordingly reduced.

I next turn to the second defendant's submissions on liability. State Counsel contended: 1. the plaintiffs had offered no evidence on what happened after the revolver was out of Low's holster, the only evidence came from Low himself who claimed that the deceased came towards him and grabbed the gun. This is consistent with Dr Wee's evidence that the gun was fired at close range, hence there was no powder tattooing on the deceased's hands. The fact that the tip of the muzzle was only one foot away from the deceased's head corroborates Low's evidence that it was the deceased who went for his gun; 2. whilst it is not disputed that Low had a great deal to drink that night, his drinking was spread over six (6) hours from 7pm - 1am and in between he had dinner. Therefore he was not drunk or incapable of taking care of himself. On the other hand the deceased who according to Dr Wee had a blood alcohol level of 182 mg could have been intoxicated enough to have had his judgment impaired which rendered him unable to control himself; 3. the plaintiffs' evidence in respect of the second defendant's alleged negligence came solely from Asp Boey. On the other hand Inspector Koh and Assistant Commissioner Teoh testified to the training that the police force gave to all its police officers together with the appropriate directives and PGOs non compliance of which may subject the police officer concerned to disciplinary proceedings; 4. Low had a duty to ensure the safety and proper care of his personal issue revolver as otherwise he will be subjected to disciplinary proceedings under s 27 or even a criminal charge under s 30, of the Police Force Act; 5. the police force had no reason to believe or suspect that Low was at any time incapable of handling or taking care of firearms, as testified to by his various superiors. Low had an unblemished service record. Whilst his superiors knew Low consumed alcohol from time to time they had on no occasion seen him consume liquor to the extent that he was incapable of taking care of himself; 6. whilst an ankle holster is not a police issue and it is not one of the 3 ways listed in para 19 of exh P2 to carry a gun, it did not mean that police officers cannot carry their revolvers in ankle holsters, they are allowed to do so as long as the same are adequate and safely secure the revolvers. Low's ankle holster which was produced at the criminal trial was said by Asp Boey to be adequate for the purpose; 7. it was the deceased's act that caused the shot to be discharged from Low's revolver by his attempt to grab the weapon. Even if Low was negligent in carrying the gun that night and then dropping it, that negligent act did not cause the discharge. Low did not expect his old schoolmate to go for his gun; 8. even if Low caused the death of the deceased, it was not reasonably foreseeable that Low's negligent act would result in what happened, the English Court of Appeal decision in Re Polemis & Furness Withy & Co Ltd < 1921 > 3 KB 560 that the defendant was responsible for all the consequences of his negligent act whether reasonably foreseeable or not had been held by the House of Lords in The Wagon Mound No 1 < 1961 > AC 388 to be not good law; 9. it cannot be said that the deceased did not know that a gun was dangerous, if he chose to make a grab for it he had voluntarily exposed himself to the risk of injury; 10. alternatively even if Low was to some extent liable in negligence, the deceased's fault contributed to his death to the extent of 90% (s 3 of the Contributory Negligence & Personal Injuries Act); 11. the plaintiffs had alleged (paras 5 and 6 (a) of the statement of claim) that the firearms policy of the police force was negligent in arming Low. The formulation of the arms policy is one for the police force to make which it did in the exercise of the powers granted to it under the Police Force Act. Such policies may be articulated in PGOs, Force Orders or Standing Orders. The policy of empowering off duty police detectives to carry their personal issue firearms is found in Force Order 39/59. The police force's witnesses have testified that they believed that this policy was essential and effective. The plaintiffs must prove the lack of bona fides in the formulation of this policy for them to succeed in their complaint, they have not even pleaded that the police commissioner in promulgating this policy failed to exercise it in good faith, and in any case the second defendant contended that the police force had acted bona fide within the limits of its discretion. Evidence was adduced that the nature of their work justifies detectives carrying firearms even when they are off duty; 12. public policy is another ground why the police force cannot be held liable in respect of the formulation of its arms policy. If the court were to hold that the police force is liable for any negligent consequences flowing from the formulation of this policy, it may drive the police to formulating overly conservative policies which may work to the detriment of law and order; 13. if Low was negligent in carrying the gun with him that night, it was an act outside the scope of his employment and the government is not vicariously liable as he was on a frolic of his own (see Keppel Bus Co Ltd v Sa'ad bin Ahmad < 1974 > 1 MLJ 191).

The plaintiffs countered the defendants' submissions as follows:- 1. Low undoubtedly owed a duty of care to the deceased (Hill v Chief Constable of West Yorkshire (supra)) as the deceased was in Low's company when the latter was armed. 2. The fact that the police are engaged in 'policing' activities does not exempt them from ordinary duties of care. These duties of care are not 'negatived' just because the police are engaged in difficult or dangerous work but the nature of such work is taken into account in assessing the applicable 'standard of care' (see Marshall v Osmond < 1983 > 2 AER 225). 3. The 'two stage' test laid down by Lord Wilberforce in Anns v Merton London Borough Council (supra) has been called into question in subsequent cases and is no longer good law. Murphy v Brentwood District Council < 1990 > 2 AER 908 disapproved of Lord Wilberforce's approach. 4. Foreseeability of likely harm is not of itself a sufficient test of liability in negligence as there must also exist the 'neighbour' principle propounded by Lord Atkin in Donoghue v Stevenson < 1932 > AC 562. Low was on a drinking spree and he ought reasonably to have had the deceased and or others in contemplation as being 'so closely and directly affected by his act' (per Lord Atkin at p 580 of Donoghue v Stevenson). 5. The standard of care expected of Low is that of a reasonable police officer. Low at the material time was a detective sergeant who was authorised to be in possession of his service revolver even when off duty, it was left to Low's discretion whether to carry his revolver with him when off duty and Low was negligent in that he failed to exercise his discretion and not carry his revolver as an ordinary prudent officer would have done. The evidence showed that Low's appointment at the Club was pre-arranged and he should have deposited his revolver in the armoury for safekeeping. Further he frequented the Club once or twice a week to drink, sometimes heavily. 6. Low knew or ought to have known that if he had been out drinking there would have been little he could have done or would have been expected to do if he had been recalled for active duty because of his drinking, hence there was no need for him to carry his revolver. This had been confirmed by his two superior officers Dsp Yeo and Dsp Alsree and even by the deputy assistant commissioner of police Teo. Low kept the revolver with him for his own convenience and without regard for the safety of others; he therefore failed to act in a prudent manner. 7. Low's ankle holster was not a police issue and was not one of the three ways specified under para 19 of exh P2 to carry a weapon. Notwithstanding that the revolver had fallen out once before Low took no remedial measures to check if his holster was safe to use. 8. Contrary to Low's contention that the revolver was pointing downwards at an angle of 45~ when he picked it up, the autopsy report and Dr Wee's evidence showed that the revolver was pointing in the direction of the deceased. Low was negligent in failing to adhere to the safety precautions set out in exh P2. 9. Contrary to the safety precaution set out in para 32(g) of exh P2 Low had his finger in the trigger guard of the firearm. In his statement recorded some 5 hours after the shooting pursuant to the then s 121(b) of the Criminal Procedure Code which forms part of the agreed evidence, Low had not said the deceased's finger or thumb was in the trigger guard as he asserted at the trial. The conclusion must be that Low's finger, not the deceased's, was in the trigger guard of the revolver when the shot was discharged. 10. Low was negligent in the handling of the revolver as he failed to 'break' the gun and or to cover the trigger guard, both split second actions. 11. The fact that Low negligently caused the deceased's death did not take him outside the scope of the second defendant's employment, the court must determine whether Low was doing an authorised act when he carried his revolver with him on 23 and 24 September 1985. In doing so the court should not dissect the employee's tasks into component parts but should look at the matter broadly (Ilkiw v Samuels < 1963 > 2 AER 879), the term 'course of employment' ought to be liberally construed (Lloyd v Grace Smith & Co < 1912 > AC 736). Low had a discretion to leave his revolver in the station's armoury for safekeeping but he chose not to do so which exercise of discretion is within Low's scope of employment. Therefore Low's negligence in handling and or retrieving his revolver on 24 September 1985 was a bona fide exercise of this authorised discretion, the mishandling of the revolver only goes towards the mode of carrying the revolver. Low carried the revolver whilst off duty in the interest of the second defendant in case he needs to be unexpectedly recalled. Therefore the second defendant is vicariously liable for Low's negligence. 12. the police force owes a duty of care to each individual citizen to ensure that i. the officers it arms receive thorough training in the handling of firearms and ii. there are sufficient rules and regulations with regard to the carrying out of their policing duties. The police force was negligent in failing to set down sufficient guidelines and enforcement procedures reasonably expected of an enforcement agency with armed personnel. As a gun is a dangerous weapon the police forces owes a duty of care to the public as it arms all police detectives and gazetted officers 24 hours. 13. Para 14 of PGO C10 'officers with personal issue weapons are responsible for the safety and proper care of the weapon issued to them' has been proved to be too general and insufficient a guideline. Assistant commissioner of police Lim (DW8) had admitted that there were no rules and regulations as regards a police officer drinking when carrying a revolver. From the evidence of deputy assistant commissioner of police Teo (DW7) the checks and balances which the police carried out were insufficient, it was left to a detective to ensure that he does not negligently handle a firearm. The police force was negligent as it failed to ensure that off duty officers did not carry firearms whilst under the influence of alcohol. 14. The police force was negligent in failing to ensure that police officers comply with the prescribed mode of carrying firearms set out under para 19 of exh P2. Low was not even issued with a holster and he was never asked what type of holster he used to carry his revolver. The stance of the police force with regard to the use of ankle holsters is negligent. 15. There was conflicting testimony as to whether detectives were required to undergo the 'J' course. It must follow that the police force was indifferent as to whether its officers are trained for detective duties before their appointment.

The findings I would first of all make the following observations about Low's evidence: 1. he had since joining the police force been a consistent and heavy drinker and had thereby acquired an above average tolerance to alcohol; 2. his superiors knew he was in the habit of carrying the revolver with him when he went off duty. The police force left it very much to the discretion of the individual officer whether to deposit a personal issue revolver in a station's armoury when he went off duty. In Low's case he said it was his normal practice to carry the revolver with him when he left the office; 3. there was no doubt that he and the deceased were tipsy or high when they left Act 1 at about 1.00am on 24 September 1985. Despite Low's denials, their action of holding onto each other and 'toing and froing' can only be because both were unsteady after the amount of alcohol they had consumed even if as in Low's case, he apparently had a greater capacity for liqour than the deceased, as evidenced by his subsequent blood alcohol content. Obviously Low and the deceased were trying to hold each other steady. 4. as a yardstick for comparison, under s 70 of the Road Traffic Act a person with 80 mg of alcohol in 100 ml of blood is presumed to be incapable of having proper control of a motor vehicle. Low's blood alcohol level at 1am that morning apparently would have been in the region of 225 mg to 100 ml of blood as against 185 mg in the deceased. That being the case and despite his above average tolerance for liquor I am certain (based on Dr Chong's testimony), that Low's reflexes must have been affected and slowed by the effects of alcohol even if his gait was steady and he was coherent in speech some 1 3/4 hours after the shooting; 5. Sergeant Heng (PW3) in his evidence said he concluded that Low was 'a bit high' because Low kept on repeating 'this is my schoolmate, this is my schoolmate; 6. his testimony differed materially from the statement (which formed part of the agreed evidence) which he gave to Dsp Lim soon after the shooting (see 2AB75), in particular Low had there stated that the deceased pushed him away, he grabbed the deceased and a scuffle ensued during which his revolver dropped to the ground, he pushed the deceased away, retrieved the revolver with his right hand, the deceased lunged at him and a shot was fired;

7. PC Low Mong Nguang's evidence at the criminal trial (which also formed part of the agreed evidence for this case, see 3AB3) was that when he took custody of Low and placed him in his petrol car after the shooting, he observed that Low's face was flushed and Low smelt of alcohol; 8. I do not believe Low's evidence nor do I accept his counsel's submission that it was the deceased and not Low who squeezed the trigger and fired the fatal shot. It is to be borne in mind that no tests were done on the swabs taken for the deceased's hands not that there was no powder tatooing (which cannot be seen by the naked eye) of his hands. Neither would it have been possible that the gun was pointing towards the ground (be it at an angle of 45~ or even 26+~) as if that had been the case the deceased would not have been shot. The gun quite obviously must have been pointed at some part of the deceased's body.

On the part of the police force I formed the following conclusions from the evidence of their witnesses:- 1 Low's superiors knew about Low's drinking habits; 2. although an ankle holster was/is not a police issue and is not one of the 3 ways to carry a firearm set out in para 19 of exh P2, the police force was well aware that police officers like Low used ankle holsters. There was tacit approval of the use of ankle and other non-issue holsters so long as the same were safe and adequately secured the owners' weapons. Indeed Low's superior Alsree used a pocket holster whilst deputy assistant commissioner Teo carried his firearm in a clutch bag and assistant commissioner Lim used an ankle holster; the guidelines set out in exh P2 were merely prescriptive not mandatory; 3. there are no guidelines in any PGOs or Force Orders or in the manual (exh P2) to warn off duty police officers of the consequences of drinking especially drinking heavily whilst carrying firearms; 4. drinking per se is not disallowed by the police force, the police force left it to other areas of the law to take care of police officers who drank in excess so as to render them incapable of taking care of themselves although such officers are liable to disciplinary proceedings under the Police Force Act; 5. it was left entirely to the discretion of the individual police officer whether he should or should not deposit his firearm in his station or department's armoury when he went off duty; 6. whilst technically every police officer is deemed to be on duty 24 hours, when he is off duty the fact that an officer may not be armed does not mean he cannot intervene in emergency situations as there are various ways to intervene other than by resorting to the use of his weapon; 7. unlike the maxim 'drinking and driving don't mix' which prohibition is embodied in s 70 of the Road Traffic Act, there is no equivalent provision in the Police Force Act or other legislation pertaining to police officers to cover the maxim 'firearms and alcohol don't mix'; 8. the training and practice provided to police officers and detectives at the Police Academy did not place great emphasis on the manual (exh P2) although certain safeguards such as the importance and the method of, retrieving firearms was drilled into them. Neither was PGO C10 and in particular para 14 explained nor was it brought specifically to police officers' attention at the courses, training and shooting practices they underwent at the Academy; 9. it was assumed that detectives being a special breed would know how to handle their weapons responsibly in situations which arose.

Apart from Low whose version of the event I view with considerable circumspection (as it was discredited to a large extent under cross-examination) the person who could have enlightened the court as to what happened that fateful morning would have been the deceased. Only the deceased could have explained why, as Low asserted, he lunged at Low and attempted to grab Low's gun. Was it because (as counsel for the plaintiffs contended) the deceased thought that Low was aiming the weapon at him and he did it in self defence or was it because the deceased due to his intoxicated state was irrational and just wanted the gun?

It would be fair to say that the tragedy would not have occurred had Low like the police witnesses who testified, deposited his revolver at the station's armoury before he left for the Club the previous evening; there was no necessity for him to carry the weapon when off duty. Unfortunately he did not because, firstly, he was in the habit of carrying his weapon on previous off duty drinking sessions and secondly, he had to do escort duty early the following morning. As for the first reason, I would say that while it may have been a common enough practice for Low and other police officers to carry firearms when they go drinking, it was not a prudent practice. No less a person than Suptd Heng himself had testified that off duty police officers can still intervene in emergency situations without the need for firearms. Even if he had been recalled for duty, Low's immediate superiors (Dsps Yeo and Alsree) would have had to assess his condition before allowing him to drive let alone participate in whatever operation it was that necessitated his recall, he could then retrieve his firearm if he had deposited it at the armoury. As for the second reason I agree with the submission of counsel for the plaintiffs that Low carried the revolver for his own convenience -- he could have and indeed should have deposited the gun at the station's armoury in the evening of 23 September 1985 and retrieved it the following morning before proceeding on escort duty.

I turn to the events that fateful morning. I have no doubt that Low's revolver fell to the ground not inexplicably as he claimed but because of and during, the scuffle he had with the deceased, as recorded in his statement to Dsp Lim under the then s 121(6) of the Criminal Procedure Code. It is not known who started the scuffle but suffice it to say the scuffle would likely not have taken place between two schoolmates who had not quarrelled, had their judgment not been impaired by their previous and heavy consumption of alcohol where drinks were mixed. Some force must also have been exerted by one or both protagonists as Asp Boey said that a pressure of 13lbs is required to discharge a shot. Whilst Low may not have been drunk or incapable of taking care of himself that morning as he contended (undisputedly this would be the thinking of every drunkard) his senses must have been dulled, otherwise he would have reacted differently or at least quicker, to the deceased's actions -- the same is probably true of the deceased. It is to be noted that Dr Chong's examination of Low was 1 3/4 hours after the event and cannot be an indication of Low's physical or mental state at 1am. Both PC Low Mong Nguang and Dr Chong had testified that Low smelt of alcohol (Dr Chong said Low smelt heavily of alcohol). Contrary to Low's denial, I accept Sergeant Heng's evidence that Low told him he wanted to unload the revolver after it fell to the ground. Even in his then confused state I cannot imagine that Low would have told the sergeant after the shooting that he was unloading the weapon unless it was true.

I find that Low was negligent as: 1. he had his revolver with him when he was off duty, he well knew that he would be going drinking; 2. he then had too much to drink; 3. thereafter he did not observe the safety procedures he had been taught in the handling of firearms in that (i) he unloaded a firearm in a public place; (ii) he had his finger in the trigger guard; (iii)he failed to 'break' and or to make safe, the weapon when the deceased grabbed it; (iv) the revolver was pointed in the direction of the deceased; 4. he had been with the police force since 11 January 1971 (see his service record card at 2DB14) and prior to 1985 he had gone for annual shooting tests since 1975. With his experience/practice he could have dealt with the deceased's attempt to grab his revolver better if he had not been tipsy.

The next point to consider is whether Low owed a duty of care to the deceased. In this regard I reject his counsel's submission that Low for policy considerations either owed no duty to the deceased or had such duty negated. On 'the neighbour principle' propounded by Lord Atkin in Donoghue v Stevenson I am of the view that Low did owe a duty to the deceased and that he breached that duty. Lord Wilberforce's dictum in Anns v Merton London Borough Council (at p 751) cannot be taken out of its context. Indeed even under the two stage test that his lordship enunciated Low would still owe a duty of care to the deceased. Low's conduct fell short of that to be expected of a reasonable police officer.

The issue then to be considered is whether the maxim 'volenti non fit injuria' should apply to the deceased as contended by both defendants. I say the maxim does not apply, in the case of the second defendant this defence was not even pleaded. The evidence does not suggest that the deceased even knew that Low was carrying a gun before it fell on the ground. I further reject the contention that the act of the deceased in lunging forward was the 'novus actus intervenus' which broke the chain of causation.

I agree however with the other submission of Low's counsel that there was contributory negligence on the part of the deceased (although not to the extent alleged of 80%). The facts show clearly that the deceased was partly to be blamed for what happened. Apart from the suggestion made by plaintiffs' counsel, there was nothing said by the deceased at or prior to the shooting to indicate that he grabbed the weapon in self defence because he was afraid that Low was going to turn the revolver on him. There was no reason for the deceased to interfere with Low's retrieval of the revolver save for his intoxicated state -- the deceased was equally to blame for his own death. Again, this defence was not pleaded by the second defendant.

As to whether the second defendant is vicariously liable for Low's shooting of the deceased, the facts show that the police force knew that some off duty police officers carried their personal issue firearms when they went drinking. Drinking per se when off duty was not disallowed. The force did not issue guidelines vis a vis drinking or drinking whilst armed. It was left to the sole discretion of the officer concerned how he carried his personal issue and whether he should deposit his revolver in the armoury of his unit when he went off duty. Indeed it was the common view of the witnesses from the police force that the nature of their work justified off duty police detectives being armed. Therefore it cannot be said that by being armed when he went drinking on 23 September 1985 Low was on a frolic of his own. The decision in Keppel Bus Co Ltd v Sa'ad bin Ahmad (supra) turned very much on the facts of the case.

The oft-quoted and well known passage from Salmond on Torts (20 ed at p 457) which was approved by the Privy Council in Keppel Bus Co Ltd v Sa'ad bin Ahmad reads as follows: But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes -- although improper modes -- of doing them. In other words a master is responsible not merely for what he authorises his servant to do but also for the way in which he does it....On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside it.

Applying that passage from Salmond to the facts I find it difficult to arrive at other than the conclusion that Low was armed on the evening of 23 September 1985 as he was empowered to do, in the interests of the police force to meet any breach of public safety or order that may occur, as pleaded in para 6 of the second defendant's defence. Low was not prohibited from drinking nor from carrying arms, when off duty. Therefore in carrying his weapon in an ankle holster on the night of 23 September 1985 so as to be prepared for any eventuality, Low was acting 'in the course of his employment.' He may have discharged his duty in an improper manner by attempting to unload his revolver in a publice place, even so his employer the police force is still liable.

There is no doubt that the police force owes a duty to members of the public to ensure that its officers who are armed are fully aware of the risks involved and that there are sufficient rules and regulations in place to safeguard citizens. In Ancell & Anor v McDermott < 1993 > 4 AER 355 the court had to determine whether a police constable owed a duty to others to protect them or warn them against hazards created by others in the road. The Court of Appeal answered the question in the negative. Applying the reasoning of the appellate court to this case, I would say that the police force owes a duty to protect members of the public including the deceased as it created the hazard so to speak, in arming detectives like Low and failed in that duty by not ensuring that Low acted responsibly with regard to his personal issue. To leave it entirely to the discretion of an individual officer whether to leave his personal issue at the armoury when he went off duty and in particular when he went drinking off duty, on pain of disciplinary proceedings and possibly dismissal under the Police Force Act should he exercise that discretion wrongly, without more, is not an adequate discharge of that duty.

I do not propose to review the many authorities cited by the parties to support their respective positions. Suffice it to say that I have considered them. Ultimately as was said by Lord Thankerton (at p 599) in Canadian Pacific Railway Co v Lockhart < 1942 > AC 591 each case will depend for its decision on its own facts. The general principles ruling a case of this nature are well known and are not disputed. I would say however that the South African cases cited by counsel for the plaintiffs are helpful. I accept Taylor J's dicta (at p 995) in Rigby v Chief Contable of Northamptonshire < 1985 > 2 AER 985 that whether or not a defendent had been negligent must be viewed at the time of the alleged negligence and in Low's case this would be when he left the station at which time he should have but did not, deposit his revolver at the armoury.

The quantum of damages Evidence on the loss of dependency had been given by the deceased's widow (the first plaintiff) and by the deceased's manager who also assisted the court on the possible loss to the deceased's estate. The first plaintiff (PW1) said the deceased (who was 33 at the time he died) used to give her $1,400 - $1,500 for household expenses from his monthly salary of about $2,000 when he worked as an operations manager at a company called Marcom Offshore Pte Ltd (Marcom). The deceased's IR8A form for 1985 (AB43) from Marcom showed that he was paid a monthly salary of $1,750 ($7,000 for 4 months until his resignation on 30 April 1985) which together with his bonus from the company ($1,750) plus commission from Prudential gave him a gross income of $18,520.55 for year of assessment 1985.

According to Benny Tay Yew Lin (Tay) a senior agency manager with Prudential, the deceased who started off as a part- time agent only became a full-time agent with Prudential on 1 May 1985. For the period 1 January to 24 September 1985 the commission paid to the deceased was $9,770.55 or an average of $2,339.44 per month. Between September and December 1985 the first plaintiff was paid commission due to the deceased amounting to $10,816.56. Tay (PW5) had said that the deceased's earnings were 'fairly decent and pretty good' for the 5 months that he was a full-time agent. Tay described the deceased as a very dedicated agent who had a lot of potential either as an agent or as an agency manager. He assessed the deceased's earning potential as an agency leader at between $250,000 - $300,000 per annum, a median figure based on what young managers and agents in their early 30's would be grossing after having been in the business for 6-7 years. Tay said that past experience showed that an agent would do 35% of the annual volume of sales in November-December of every year although he did not know the reasons therefor. Current earnings of contemporaries of the deceased varied from those earning $60,000- $120,000 per annum to those grossing $250,000 - $600,000. Out of the gross earnings about 35-40% would be spent on expenses.

Counsel for the plaintiffs quantified their clients' claim as follows: a. Loss of pre-trial dependency $184,184.00 b. Loss of post-trial dependency 252,252.00 c. Loss of future earnings 768,000.00 d. Loss of expectation of life 7,500.00 e. Funeral expenses 3,000.00 f. Interest at 6% for loss of expectation of life ($1.20 per day) g. Interest at 6% for funeral expenses ($0.50 per day) h. Interest at 3% for pre-trial loss of support ($15.00 per day)

Item a, was based on $1,600 per month adjusted for a deduction of $200 per month for the deceased's and his parents' meals. Between the date of the death (24 September 1985) and the trial (June 1993) approximately 92 months (7+ years) had elapsed. Allowance was made for an increase in the deceased's earnings and the multiplicand to which the multiplier of 92 months was applied was increased by 43% to $2,002 per month. For the post-trial period a multiplier of 7 was applied relying on Loke Yoke Ying v Sim Kok Lee < 1991 > 2 MLJ 104 Jeya v Lui Yew Kee <1992> 1 SLR 534 and Lee Ngiap Hoon v Teo Sin < 1992 > 1 SLR 831) in line with the House of Lords decision in Cookson v Knowles < 1978 > 2 AER 604.

For item b, the multiplicand for post-trial loss of earnings was further increased to $3,003.00 per month calculated over 7 years. For loss of future earnings, the multiplicand used was $120,000 based on the deceased's average salary of $2,500 per month and the greatest possible salary the plaintiffs' counsel said he would have attained, namely $210,000. The available surplus after expenses was taken to be 40% of $120,000 or $48,000. Applying a multiplier of 16 the total loss of future earnings was $768,000.

As for interest the plaintiffs submitted that the court has a discretion to award interest under s 9 of the Civil Law Act. They claimed interest at 6% for special damages and for loss of expectation of life and at 3% on damages for pre-trial loss of support.

The plaintiffs' figures were criticised by both defendants' counsel who contended (i) in calculating pre-trial loss of earnings a more reasonable figure for the deceased's last drawn salary should be $2,000 (based on his widow's evidence) instead of $2,500 per month as suggested by the plaintiffs' counsel. The monthly average of $2,339.44 put forward as the deceased's earnings is inaccurate as it was based on commission earned by the deceased as a part-time agent. The deceased had not been in the insurance field long enough to establish a track record; (ii) the multiplier was agreed at 12 (at the pre-trial confernce on 12 September 1992 -- this was disputed by counsel for the plaintiffs); (iii)the plaintiffs' multiplicand of $120,000 per annum is excessive. Even if he had become an agency leader, to say that the deceased would have grossed $250,00 - $300,000 per annum (less 30% expenses) is too speculative (Chan Heng Wah v Peh Thiam Choh < 1988 > 1 MLJ 74). Assuming the deceased had stayed on in the industry a more reasonable figure for his annual earnings would be as an agent and not as a leader. The average earnings of the deceased would have been either $102,000 or $87,000 (according to Low's counsel) or $42,000 per annum taking the median of $24,000 (based on $2,000 per month) and $60,000 (according to state counsel for the second defendant); (iv) allowance has to be made for living expenses (see Chan Heng Wah) and 60% should be deducted to leave available 40% as the deceased's net prospective earnings. If there are no CPF contributions then again following Chan Heng Wah the available surplus should be less than 40%. In the deceased's case as he would have no CPF contributions the available surplus should be 35% following Lim Fook Lau v Kepdrill International Incorporated SA < 1993 > 1 SLR 917; (v) while an allowance must be given for an increase in the deceased's earnings the plaintiffs' proposal of 43% increase is manifestly excessive, the increase should be 20%; (vi) the deceased could not have given to the first plaintiff $1,600 per month, rather the figure should be $1,200 - $1,300 as otherwise he only had $400 for his own expenses which would be wholly inadequate. Further, deductions have to be made for his meals ($50) at home as well as the meals of his parents ($200).

Low's counsel contended that the dependency claim should be $187,200 as follows: Pre-trial loss of dependency $141,960.00 Post-trial loss of dependency 45,240.00

For the estate claim counsel said the figure should be $173,135.99 apportioned as to $96,346.87 for the pre-trial and as to $76,789.12 for the post-trial, periods. For the pre-trial period she suggested a multiplicand of $33,605 ($36,000 less income tax of $2,395) for 6 years and for the post-trial period also of 6 years she suggested a multiplicand of $48,755 ($54,000 less income tax of $5,245). Both multiplicands had to be reduced by 65% for living expenses and for the lack of CPF savings to give an available surplus of 35%.

State counsel submitted that the dependency claim should be $164,160 made up as follows: Pre-trial loss of dependency $103,740 Post-trial loss of dependency $60,420 The computations were based on the first plaintiif receiving from the deceased gross and net monthly sums of $1,200 and $950 respectively, the latter discounting for the deceased's and his parents' meals at home. 20% was then added to $950 to allow for an increase in the deceased's salary to give a multiplicand of $1,140 x 12 years x 12 months.

For the estate claim, state counsel said the figure should be $129,213 based on Gross prospective earnings $42,000 Less: tax reliefs 8,000 Taxable income 34,000 Less income tax 3,235 Net prospective earnings per year $30,765 35% available surplus $10,767.75 x 12 years = $129,213

Having considered the plaintiffs' figures and the defendants' objections to the same as well as the common authorities cited by all parties, I have arrived at the following figures: 1. in calculating pre-trial loss of earnings it would be more reasonable to use as the median for the deceased's last drawn salary $2,000 instead of $2,500 -- the commission that he earned as a part-time agent should be discounted. Accepting that he gave the first plaintiff an average of $1,500 per month and less a deduction of $200 for his and his parents' meals, that would leave a net figure of $1,300 as the loss of dependency. For the pre-trial period (92 months) the loss of dependency is therefore $1,300 x 92 = $119,600. 2. the multiplier was indeed agreed at 12 years at the pre- trial conference on 12 September 1992 and I therefore reject the plaintiffs' figure of 14+ years for the combined pre and post-trial periods. The post-trial loss of dependency is therefore 12 x 12 months - 92 = 52 months. Whilst an increase in the deceased's salary is to be expected the plaintiffs' figure of 43% is excessive. I agree with state counsel's submission that the increase should only be 20%. Therefore the loss of dependency is revised from $1,300 to $1,560 per month for the post-trial period which for 52 months is $81,120; 3. the plaintiffs' multiplicand of $120,000 per annum as the deceased's possible earning capacity (based on the minimum annual income of $30,000 and the maximum he would have earned of $210,000) is also excessive. The defendants' contention that the deceased was not long enough in the insurance field to have established a track record is a valid objection. Despite Tay's optimistic appraisal of the deceased's potential, it would be highly speculative and far too remote to say that the deceased would have attained the status of an agency leader even if he had stayed on in the industry. At best one can be certain that he would have become a very successful agent and would thereby be earning in the region of $60,000 - $120,000 per annum. Taking $100,000 rather than the median of $90,000 in place of the lowest figure of $60,000 but less expenses, tax and the CPF element, for which I would deduct 65%, the deceased's net earnings would have been $35,000 which calculated over 12 years would be $420,000. By not taking the lowest figure I have in fact erred on the generous side as it is unlikely that the deceased would have averaged $100,000 as his gross annual earnings for the first few years that he was a full time agent; 4. I allow the plaintiffs' claim for interest at 3% on pre- trial loss of dependency as it is in line with authorities and recently reaffirmed by the Court of Appeal in Teo Sing Keng & Anor v Sim Ban Kiat (unreported - Civil Appeal No 21 of 1993).

The total claim due to the plaintiffs for dependency is therefore $200,720 ($119,600 + $81,120) not including interest at 3% on $119,600 from the date of death until judgment.

The total estate claim is $432,021 made up as follows: 1. Funeral expenses (agreed) $3,000.00 2. Loss of expectation of life (agreed)7,500.00 3. Grant of probate (agreed) 1,521.00 4. Loss of future earnings 420,000.00 $432,021.00

As the dependents and the beneficiaries of the estate are the same and the estate claim exceeds the dependency claim, the latter merges with the former so that the plaintiffs are only entitled to the estate claim of $432,021. Taking into account the deceased's contributory negligence of 50% the estate claim is thereby reduced to $216,010.50.

There will therefore be judgment for the plaintiffs in the sum of $216,010.50 with interest on the special damages ($7,500 plus $3,000 and $1,521) at 6% per annum from the date of writ to judgment. As the only defence that succeeded is that of contributory negligence, I award the plaintiffs 80% of the costs (one set) but with full disbursements against both defendants, to be taxed unless otherwise agreed.