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
Judge | Sundaresh Menon CJ; Andrew Phang Boon Leong JA; Judith Prakash JA; Tay Yong Kwang JA; Belinda Ang Saw Ean J |
Judgment Date | 26 November 2019 |
Neutral Citation | [2019] SGCA 75 |
Citation | [2019] SGCA 75 |
Defendant Counsel | Prof 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 date | 12 December 2019 |
Hearing Date | 21 January 2019 |
Plaintiff Counsel | Edmund Kronenburg and Crystal Tan (instructed) (Braddell Brothers LLP), Christopher Goh Seng Leong and Seah Wei Jie, Joel (Goh Phai Cheng LLC) |
Docket Number | Civil Appeals Nos 70, 71 and 72 of 2018 |
Court | Court of Appeal (Singapore) |
Date | 26 November 2019 |
Subject Matter | Experts,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 |
In a case we heard barely two years ago,
These cross-appeals are brought against the decision of the High Court judge (“the Judge”) in
As to this last mentioned issue of causation, the Judge appeared to rely on the minority’s decision in
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
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 (
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
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
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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