De Cruz Andrea Heidi v Guangzhou Yuzhitang Health Products Co Ltd and Others

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 03 October 2003
• Neutral Citation: [2003] SGHC 229
• Date: 04 October 2003
• Docket Number: Suit No 731 of 2002
• Year: 2003
• Published date: 16 October 2003
• Plaintiff Counsel: Raj Singam, Wendell Wong and Tan Siu-Lin (Drew & Napier LLC)
• Citation: [2003] SGHC 229
• Defendant Counsel: Lok Vi Ming and Kelvin Poon (Rodyk & Davidson),B Rao and G Hardial Singh (B Rao & KS Rajah),Simon Tan and Philip Lam (Attorneys Inc LLC)
• Court: High Court (Singapore)
• Subject Matter: Negligence,Relevance of defendant making secret profit or commission from plaintiff,Directors,Causation,Liabilities,Whether break in chain of causation when the plaintiff obtained the pills from non-official retail sources,Whether wholesaler of slimming pills in breach of duty of care for placing blind faith in the importer and distributor,Tort,Whether there was intention to create legal relations in situation where defendant doing plaintiff a favour,Whether director of company personally liable for torts committed by the company,Companies,Damages,Whether duty of care extended to conducting "due diligence" check on the manufacturer,Multiplier for annual medical expenses,General damages for pain and suffering,Types of damages claimable by plaintiff,Multiplicand and multiplier to be used,Whether circumstantial evidence proved on a balance of probabilities that slimming pills had caused the plaintiff's liver failure,Loss of earning capacity in entertainment industry,Breach of duty,Duty of care,Quantum,Whether wholesaler of slimming pills owed duty to consumers to exercise reasonable care in promotion, endorsement and advertisement of the pills,Whether plaintiff obliged to mitigate loss by having liver transplant operation done at National University Hospital instead of Gleneagles Hospital,Intention to create legal relations,Whether importer and distributor of slimming pills owed duty of care to customers,Whether award of $250,000 for general damages too high,Whether importer and distributor of slimming pills in breach of duty of care for failing to keep proper records of consignments of pills and to do proper batch tests,Contract

1 This is an action by the plaintiff for damages suffered by her as a result of consuming a slimming drug known as Slim 10. Her liver failed and she had to undergo a living donor liver transplant in May 2002.

The plaintiff’s case

3 The plaintiff graduated with a degree in Clinical Psychology from the University of San Francisco in 1997. She returned to Singapore in 1998 and worked as a Clinical Psychologist in a clinic for about a year. She then joined Television Corporation of Singapore, the predecessor company of MediaCorp, and has been working there for the last five years. She did mostly hosting assignments and also acted in movies and dramas. In 2001, she had her big break when she was cast in the Chinese drama series ‘No Problem’ as the Chinese language entertainment market was much bigger than the English language one.

4 She led a very hectic but happy life. When she was not filming, she would often be at the gymnasium participating in all sorts of exercise classes. She and her fiancé, Pierre Png, loved outdoor activities and would frequently go to the beach, cycle, swim and go for joy rides on his motorcycle.

5 Sometime in December 2001, she got to know the fifth defendant and his wife, Chen Liping, also a MediaCorp artiste, when they were all cast together in ‘No Problem’. The plaintiff was cast as the fifth defendant’s wife and therefore spent a lot of time together during filming. It was also during this period that the plaintiff saw the fourth defendant’s television commercials on Slim 10 which featured Chen Liping who was known to be having problems with her weight.

6 The commercials showed ‘before and after’ pictures of the artiste and the difference was astounding to the plaintiff. Although the plaintiff did not normally pay much attention to nor believe advertisements relating to slimming, those commercials made an impact on her because Chen Liping ‘was well known for having been pudgy and here she was in the advertisements looking so slim’. The thirty-second commercial in the Chinese and the English versions was played in Court. The commercials were ‘informercials’ which were not ordinary advertisements but were much longer and full of information. They represented that Chen Liping had tried the pills which were completely herbal. They featured the fourth defendant’s name at the end and stressed that the company was the distributor of Slim 10.

7 The plaintiff also saw life-sized cardboard cutouts of Chen Liping and huge posters of her advertising Slim 10 at the fourth defendant’s retail outlet in Beach Road. She knew the fourth defendant was a large and reputable company. Her family had bought products from the company before. She had also seen its advertisements in the United States of America while she was studying there. She therefore believed that the fourth defendant would have made the necessary checks before endorsing and pushing the slimming product so aggressively and that Slim 10 was safe for consumption.

8 She continued to see the advertisements aired over various television channels here until late March 2002 when she went to Bangkok to visit her fiancé who was doing some filming there.

9 For the plaintiff, health supplements had a lot to do with reputation, reliability and credibility of the product. She would not have bought Slim 10 from the fifth defendant had it been marketed by the first, the second or the third defendants as she knew nothing about them and they had no reputation here.

10 During one of the filming sessions for ‘No Problem’ in December 2001, the plaintiff commented to the fifth defendant that she had seen the Slim 10 advertisements and complimented him on how much weight his wife had lost. The fifth defendant replied that the pills really worked. She then said she had not been going to the gymnasium recently due to an operation to remove a lump from her left breast in November that year after which she was advised to reduce physical exertion. As a result of that and the erratic meal times caused by filming, she was gaining weight and was concerned. The fifth defendant told her she should take Slim 10 to help maintain her weight.

11 A few days later, the fifth defendant asked her in the film studio whether she wanted the Slim 10 pills as he had some in his car. He offered them to her at $130 per bottle of 120 capsules which was cheaper than the $149.90 in the retail outlets. The plaintiff decided to buy two bottles and was given two clear, unmarked test tubes of the capsules later that day. Before she took them from him, she asked him if there would be any side effects and was told she might suffer insomnia, feel a little bit cold and her calves might hurt a little. Other than those, he said the pills were definitely safe as they were all natural and contained only Chinese herbs. She paid him $260 in cash.

12 The plaintiff had no doubt that she was given the Slim 10 advertised by the fourth defendant as Chen Liping, the wife of the fifth defendant, was the spokesperson or poster girl and the fifth defendant’s description of the product was the same as that given in the advertisements. The transparent test tubes and the white or off-white colour of the capsules were also like those shown in the advertisements.

13 As filming was still ongoing then, the plaintiff decided not to start taking the pills. She was already having a hard time trying to memorise the script in Chinese and did not want her performance to be affected by insomnia. She only started consuming Slim 10 in late January or early February 2002 when filming was completed for the series. She recalled in Court it was close to Chinese New Year which fell on 12 and 13 February 2002. Four capsules were to be taken three times a day and each set of 120 capsules would therefore last 10 days. When she first started consuming the pills, she followed the recommended dosage. She felt some of the side effects mentioned by the fifth defendant. She also experienced palpitations. After a while, she decided to reduce the intake to four-four-two per day as she wanted to minimize any disruption to her sleep. During filming, she could have skipped some dosages because of the irregular filming hours.

14 On 12 February 2002, the plaintiff sent the following text message by mobile phone via the Short Message Service (‘SMS’) to the fifth defendant:

‘Hi, wishing u, Li Ping & baby gd health & prosperity this CNY!

Luv Andrea’.

On 15 February 2002, she sent another message to him as follows:

‘Gd morning Mr Extremly Naughty, did Cai Shen bring u a

lot of wealth this CNY? Anyway i hv run out of skinny pills.

Will u be around mcs 2day?’

These messages were retrieved by the fifth defendant from his mobile phone..

15 Sometime on 18 February 2002, the fifth defendant handed her the second batch comprising another two sets of 120 pills each. Before she could even ask him why those two sets were packed in aluminium foil, he told her he had asked the Slim 10 ‘lao ban’ (meaning ‘boss’) to pack them that way as he always kept the pills in his car which was often parked in the open and did not want them to be affected by the heat. For the same reasons stated earlier, she had no reason to doubt that the pills were Slim 10. She did not ask him why the pills were kept in his car. She paid him $260 by way of a cheque dated 18 February 2002.

16 The plaintiff started consuming the second batch sometime in early to mid March 2002 after finishing the first batch of two test tubes. During cross examination, she mentioned that she had in fact one more test tube of pills left in the refrigerator which she had overlooked when she ordered the second batch.

17 On 29 March 2002, she travelled to Bangkok to visit Pierre Png who was filming there. She brought along what was left of the second batch of Slim 10 and finished them there according to her usual dosage pattern.

18 On 11 April 2002, she returned to Singapore. As she had no more Slim 10 pills, she sent a text message to the fifth defendant to order some more. She could not recall the words of that message and the fifth defendant was not able to retrieve that message. He left two bottles of the pills in her pigeon hole at MediaCorp which she picked up sometime between 12 and 15 April 2002 when she sent Pierre to the studio. She did not have a chance to pay the fifth defendant for this third batch of pills as she was hospitalised soon thereafter.

19 On Sunday, 14 April 2002, the plaintiff, her family and Pierre went to church together. At lunch later, her sister commented that the plaintiff’s eyes looked very yellow and jaundiced. It was decided that she should seek medical attention.

20 Accordingly, the next day, Pierre accompanied the plaintiff to see their regular general practitioner doctor in her clinic. The doctor told them the plaintiff’s liver was inflamed and her eyes were very jaundiced and suggested that she be admitted into hospital immediately. The couple went home to pack some personal effects and then left for Changi General Hospital. There, it was confirmed that the plaintiff’s liver was inflamed and she had to be hospitalised. Unfortunately, the hospital did not have any single-bed rooms available. The plaintiff was then referred to Mount Alvernia Hospital. She arrived there in the early hours of 16 April 2002.

21 Dr Chia Siew Cheng was the doctor in charge of her throughout her stay at Mount Alvernia Hospital. Despite undergoing many medical tests, the hospital was none the wiser about her ailment. The plaintiff’s gums bled every morning when she brushed her teeth and the bleeding continued throughout the day because there was something wrong with her blood clotting mechanism. She also had bruises all over her body caused by the drawing of blood for the various tests.

22 Sometime in the second week of her hospitalisation, she had to undergo a liver biopsy. The pain was excruciating and her body went into shock, shaking and trembling uncontrollably. After...