On April 24, 1978 one Cheah Soi Moi (hereafter referred to as the deceased) was involved in a fatal accident. The motorcycle which he was riding was knocked into by a motorcar and he was killed.

On July 17, 1979 M/s Tan and Tan acting for the mother of the deceased filed an action in the Sessions Court on behalf of the mother of the deceased. She sued the car driver as an administratrix of the deceased's estate and on her own behalf as a dependant for damages under sections 7 and 8 of the Civil Law Act 1956.

The Summons was served on July 28, 1979. The case was first mentioned on August 16, 1979. By the second mention date on August 30, 1979 no defence had been filed and an Order was made precluding the defendant from defending the action.

Thereafter the case was fixed for hearing to assess the damages to be paid.

However, the case was not proceeded with on October 4, 1979 because plaintiff had gone to Canada. It was adjourned to February 7, 1980. On that day Mr. Matthew Varughese appeared for the defendant.

The case was postponed to February 28, 1980 and thereafter there were 6 further postponements before the trial actually began on November 6, 1980, with Mr. Tan Hock Kim as plaintiff's counsel.

In the interim, on or about March 11, 1980, plaintiff's solicitors made their first amendment to the Statement of Claim. The funeral expenses were increased from $1,000/- to $2,545.25.

On July 20, 1980, a second amendment was made. This time the name of the deceased's father was struck out from the Statement of Claim as being one of the dependants for the purposes of the claim under section 7 of the Civil Law Act 1956.

About this time it seems that solicitors representing the parties had some discussion about a proposed Agreed Bundle of Documents which was to be used at the trial.

On July 16, 1980, plaintiff's solicitors Tan and Tan sent a letter to the defendant's solicitors Varughese & Co. A conversation was referred to on July 15, 1980 regarding an Agreed Bundle of Documents and a reference was made to a stack of documents handed to the defendant's solicitors on June 26, 1980 seeking the agreement of the defendant's solicitors for their inclusion in the Agreed Bundle. This letter was tendered in evidence in the court below and marked Exhibit P9.

A reply was sent by the defendant's solicitors dated July 23, 1980. The letter stated:

"We have no objection to the inclusion of the documents mentioned in paragraph 2 of your letter of the 16th instant".

But the letter also contained an offer to agree the funeral expenses at a sum stated. Most importantly the letter was marked "Without Prejudice".

The subsequent history of this matter quite clearly suggests that the parties did not put up an Agreed Bundle of Documents nor was there any agreement as to the funeral expenses or for that matter any other damage, general or special, claimed by the plaintiff. So when the trial began on November 6, 1980 the entire question of the damages to which the plaintiff was entitled was wide open.

The hearing was continued on November 15, 1980. There were a number of postponements after that and further hearing took place on June 9, 1981. On that day the plaintiff's counsel closed his case.

The parties put in written submissions and judgment was delivered on November 12, 1981. The learned president granted $4,000/- by way of damages for loss of expectation of life of which $2,000/- went to the deceased's father and the remainder merged with the dependency claim of the mother. She was awarded $3,800/- under this head from the date of the accident to the date of judgment, future dependency of $7,920/- and special damages of $2,780/- which included funeral expenses of $2,000/- $400/- for repairs to the motorcycle, and $380/- for administrative and other expenses.

It is against this award that the defendant now appeals.

Quite simply the defendant's counsel argues that the plaintiff simply did not prove her case. He relies on the well known case of D