Armstrong, Carol Ann (executrix of the estate of Peter Traynor, deceased and on behalf of the dependents of Peter Traynor, deceased) v Quest Laboratories Pte Ltd and another and other appeals

JudgeSundaresh Menon CJ; Andrew Phang Boon Leong JA; Judith Prakash JA; Tay Yong Kwang JA; Belinda Ang Saw Ean J
Judgment Date26 November 2019
Neutral Citation[2019] SGCA 75
Citation[2019] SGCA 75
Defendant CounselProf Gary Chan Kok Yew (School of Law, Singapore Management University) as amicus curiae.,Kuah Boon Theng SC and Vanessa Yong (instructed) (Legal Clinic LLC), Eric Tin, Kang Yixian, Emily Su Xianhui and Kenneth Tan (Donaldson & Burkinshaw LLP)
Published date12 December 2019
Hearing Date21 January 2019
Plaintiff CounselEdmund Kronenburg and Crystal Tan (instructed) (Braddell Brothers LLP), Christopher Goh Seng Leong and Seah Wei Jie, Joel (Goh Phai Cheng LLC)
Docket NumberCivil Appeals Nos 70, 71 and 72 of 2018
CourtCourt of Appeal (Singapore)
Date26 November 2019
Subject MatterExperts,Measure of damages,Civil Procedure,Causation,Damages,Statistical and probabilistic evidence,Tort,Breach of duty,Multiplier-multiplicand,Presentation tools,Dependency,Duty of care,Tests for causation,Interpretation,Negligence,Evidence
Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

In a case we heard barely two years ago, ACB v Thomson Medical [2017] 1 SLR 918 (“Thomson Medical”), we were concerned with assisted reproduction and medicine’s ability to help bring life into the world. In these appeals, we are concerned with medicine’s ability to detect cancer, and which the appellant (“the Appellant”) contends would have averted death. Scientific advances can ameliorate illness and even extend life when it was heretofore impossible, but by that same token medicine’s promise of health and healing can amount to nought if we fail to capitalise on it. As has been aptly observed: “The paradox at the heart of [modern] medical care is that it works so well, and yet never well enough” (see Dr Atul Gawande, Better: A Surgeon’s Notes on Performance (Picador, 2007), at p 105).

These cross-appeals are brought against the decision of the High Court judge (“the Judge”) in Armstrong, Carol Ann (executrix of the estate of Peter Traynor, deceased and on behalf of the dependents of Peter Traynor , deceased) v Quest Laboratories Pte Ltd and another [2018] SGHC 66 (“the Judgment”). The Appellant, Ms Carol Ann Armstrong, as executrix of the estate of her husband, Mr Peter Traynor (“Mr Traynor”) and his dependents, has sued the respondents, Quest Laboratories Pte Ltd (“Quest”) and Dr Tan Hong Wui (“Dr Tan”) (collectively, “the Respondents”), in the tort of negligence, alleging a misdiagnosis of Mr Traynor, who ultimately died from melanoma. The next issue which arises is whether such negligence caused damage to Mr Traynor.

As to this last mentioned issue of causation, the Judge appeared to rely on the minority’s decision in Gregg v Scott [2005] 2 AC 176 (“Gregg v Scott”), where the House of Lords by a majority of three to two held that a claim for damages in clinical negligence would be resolved on a balance of probabilities that the defendant’s breach was not the cause of the adverse consequences. Conversely, the minority of Law Lords were prepared to have recourse to the “loss of a chance” doctrine, and to hold that the alleged negligence resulted in the reduced prospects for treatment.

The Appellant has two legal strings to her bow. The first (and primary) string is that she is entitled to damages because the alleged negligence of the doctor resulted (on a balance of probabilities) in the loss of a complete cure for Mr Traynor. This resulted in his death. Her position was also that since Mr Traynor’s initial prospects had been reduced from 77 per cent (above 50 per cent) to effectively zero, this should be regarded on a balance of probabilities as amounting to a complete cure, thus justifying a full award. The Appellant’s second (and fall-back) position is that the alleged negligence resulted in the reduced prospects of a cure. The Appellant sought a proportionate award of this reduction in prospects. The Respondents, on the other hand, submitted that a reduction in prospects is not a recognisable head of damage in the law of negligence.

Brief overview

In September 2009, Mr Traynor discovered a bloodstain on his shirt while changing. Mr Traynor consulted his general practitioner, who undertook a shave biopsy of a mole on Mr Traynor’s back. The specimen was sent to the Respondents who returned a pathological report indicating that this was an “[u]lcerated intradermal naevus” and concluding that “[t]here is no malignancy”. It transpired that the mole on Mr Traynor’s back was, in fact, a malignant melanoma. Shortly after Christmas in 2011, Mr Traynor discovered a lump under his right armpit while getting dressed. A biopsy of his lymph nodes under his right armpit (ie, his axillary lymph nodes) revealed metastatic melanoma. Despite repeated medical procedures and multiple rounds of chemotherapy, Mr Traynor passed away from metastatic melanoma in December 2013 at the age of 49. Mr Traynor left behind his wife, the Appellant, Ms Armstrong, and their daughters, Kate and Emily, who were aged 10 and 12, respectively, at the time of their father’s death.

The parties’ cases and the decision below

The Appellant claims that the Respondents had breached their respective duties of care in misdiagnosing her husband’s malignant melanoma in September 2009 (“the Breach Question”). The Appellant further claims that the Respondents’ alleged breach ultimately caused Mr Traynor to pass away from metastatic cancer at the age of 49, when he would have otherwise lived to the age of 82 (“the Causation Question”).

The Judge considered the answer to the Breach Question “straightforward and obvious”. He was unquestioningly of the view that the Respondents had breached their respective duties of care. The Judge held that the Respondents had simply been negligent in sending a pathology report indicating a clean bill of health to Mr Traynor when the circumstances required at least further examination on their part (see the Judgment at [8]).

However, the Judge’s answer to the Causation Question was more complex. The Respondents claimed that even prior to September 2009, Mr Traynor’s fate was “biologically determined” as melanoma had already seeded into his distant organs via his bloodstream. The Judge rejected the Respondents’ explanation, which explanation was, however (and as we shall see), pursued vigorously in the appeal before this court.

On the other hand, the Appellant suggested that Mr Traynor would have availed of surgical treatment that would have cured him. In the alternative, she presented statistical evidence suggesting that at the point of the Respondents’ alleged misdiagnosis in September 2009, Mr Traynor’s melanoma would have been what is known in the large scale studies as “Stage IIIB”. The Appellant contended that patients with Stage IIIB melanoma would have a 77 per cent chance of surviving ten years, which she claimed the law should treat as “equivalent to a cure”. In this regard, the Judge appears to have rejected the Appellant’s claim for a cure. As the Judge put it, Mr Traynor “might have been among the minority in the data. In other words, no one can be sure that Peter Traynor was not the black swan of melanoma” (see the Judgment at [15]).

The Judge declined to follow the majority’s ruling in Gregg v Scott and held that “if this case should indeed turn on the law”, he was emphatically on the side of the minority Law Lords in Gregg v Scott (comprising Lord Hope of Craighead and Lord Nicholls of Birkenhead) and that he would “leap an evidentiary gap when overall fairness plainly so requires” (see the Judgment at [16]).

Although he was of the view that the Respondents’ alleged breach had caused Mr Traynor to “lose a fighting chance”, the Judge declined to accept statistical evidence that Mr Traynor would have an at least 68 per cent chance of surviving 10 years. Instead, following from the minority’s judgment in Gregg v Scott, he opted to “leap where Lord Nicholls had leapt” and estimated that if not for the said breach, Mr Traynor would have lived for four more years from 2013. In so doing, the Judge remarked that the present case had a stronger claim based on the “lost years” argument as presented in Gregg v Scott. The Judge considered that the “lost years” were four years’ worth of Mr Traynor’s life expectancy (see the Judgment at [19]). At this juncture, we would note that even though the Judge had recourse to the reasoning of Lord Nicholls and Lord Hope in Gregg v Scott, the award that he had made was couched in terms of the number of years lost (ie, four years of Mr Traynor’s life expectancy). It is therefore, with respect, not entirely clear to us if the basis of the Judge’s award as to these “lost years” was predicated on the loss of a chance doctrine, or on a claim for a loss of expectation of life (as a matter of loss of income) under section 11 of the Civil Law Act (Cap 43, 1999 Rev Ed).

Having considered that causation was established in the manner set out above, the Judge proceeded to consider the amount of the award (“the Damages Question”). The Appellant had claimed under a Dependency Claim for benefits the dependents would have received from Mr Traynor, a Loss of Inheritance Claim for the sums she would have inherited from Mr Traynor, a Loss of Appreciation Claim for the decline in value to the Traynor family’s home, and the Estate Claim for medical, funerary, out of pocket, grant of probate expenses as well as damages for bereavement, pain and suffering. The Appellant suggested that Mr Traynor’s annual income would have been $450,000.

Conversely, the Respondents had submitted that if causation was proved, there should be a discount rate applied to the multiplier-multiplicand. They also submitted, among other things, that the Dependency Claim and Inheritance Claim should be calculated together, and that Mr Traynor’s annual income would not have been $450,000.

The Judge rejected the Respondents’ submissions that the multiplier-multiplicand for the Dependency and Inheritance Claims should be determined together, and that Mr Traynor’s annual income would have been lower than $450,000 (see the Judgment at [23] and [35]). He also held that as Mr Traynor would not have lived to his full life expectancy, but would instead have lived four more years, this would have brought the claim exactly to the date of trial. As such, it was not necessary to make a finding on the multiplier-multiplicand and he also dismissed the Loss of Appreciation and the Estate Claims.

In so far as the Dependency and the Loss of Inheritance Claims were concerned, the Judge accepted the amounts claimed by the Appellant up to four years’ worth for each Claim, but held that the Appellant had failed to prove that the value of the benefits to herself and her daughters out of the Traynor family’s annual expenses were of the conventional percentages laid down in precedents and therefore removed this...

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