Denis Matthew Harte v Tan Hun Hoe and Another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn JC
• Judgment Date: 31 January 2001
• Neutral Citation: [2001] SGHC 19
• Published date: 26 March 2013
• Court: High Court (Singapore)
• Plaintiff Counsel: Raj Singam and Edmund Kronenburg (Drew & Napier)
• Defendant Counsel: Myint Soe, Mohamed Abdullah and Daniel Xu (Myint Soe Mohamed Yang & Selvaraj),Lek Siang Pheng, Vivienne Lim and Jamie Yup (Helen Yeo & Partners)

JUDGMENT:

Addendum Grounds of Judgment on Costs, Leave to Appeal and Stay of Execution

1. In his statement of claim, the plaintiff, Mr Denis Mathew Harte (Mr Harte), alleged that the 1^st defendant, Dr Tan Hun Hoe (Dr Tan), was negligent and had acted in breach of his duty of care and contractual duties to Mr Harte, when he treated and operated on him for his fertility problem. Gleneagles Hospital Limited (the hospital) was joined as the 2^nd defendants on the basis that Dr Tan was their servant or agent. At the conclusion of a lengthy trial, I decided that Dr Tan was not negligent during Mr Hartes pre-operative consultation. Neither was he negligent when he performed the bilateral varicocelectomy operation on Mr Harte. However, I found that Dr Tan was negligent in his post-operative care and treatment. Accordingly, I assessed the quantum of damages at about S$96,600. Mr Hartes claim against the hospital was dismissed.

2. I then invited the parties to submit on the question of costs. Counsel for Mr Harte argued that Dr Tan should pay not only Mr Hartes costs but also the costs of the hospital. I was urged to impose either a Bullock or Sanderson cost order. Counsel for both defendants opposed this. Counsel for Dr Tan also disclosed that the quantum of damages recovered was less than the two offers to settle made earlier by Dr Tan, initially at S$150,000, and later doubled to S$300,000. Since Mr Harte did not accept the last offer of $300,000, and eventually recovered an amount substantially less, he should pay Dr Tan his costs on an indemnity basis from the date of the 2^nd offer to settle. It was further submitted that Dr Tan succeeded on the substantial issues at the trial that he was not negligent in his pre-operation treatment and surgery, and that Mr Hartes fall from the toilet seat whilst in an unconscious state was the cause of his testicular injury. Hence, a significant part of Mr Hartes costs should be disallowed in any case as those issues, on which Mr Harte failed, had consumed the major part of the trial time. In reply, counsel for Mr Harte contended that both offers to settle were invalid as they did not comply with the requisite Rules of Court (Rules).

3. After hearing the parties, I decided that the offers to settle were not made in compliance with the Rules. As such, the severe consequences provided under the Rules requiring Mr Harte, who lost the gamble so to speak, to indemnify Dr Tan for his further costs from the date of service of the offer could not be imposed. Given the factual circumstances in particular the extraordinary scrotal swelling following Dr Tans surgery and the disastrous results thereafter on the one hand, and on the other, the lack of pain in his scrotum and any obvious signs of scrotal bruising immediately after the fall, I did not think that Mr Harte had put forward an unreasonable or clearly untenable claim that Dr Tan had been negligent in his pre-operative treatment and surgery, and that he had caused Mr Harte to suffer from bilateral testicular atrophy. I was thus not prepared to disallow any part of the usual costs that a successful plaintiff in an action would generally be entitled to, although Mr Harte had failed to make good a substantial part of his claim which was in relation to Dr Tans operation.

4. After considering all the relevant factors including the offer from the 1^st defendant to settle the action, I made the following orders in exercise of my discretion:

I Dr Tan was to pay Mr Hartes costs, to be taxed if not agreed;

II Mr Harte was to pay the hospitals costs, to be taxed if not agreed;

III In view of the complexity of the trial, involving a considerable number of complicated and difficult medical, technical and factual issues particularly in the area of causation, I granted a cost certificate for 2 counsel for all three parties. As I did not think that the amount of damages claimed had been deliberately inflated just so that the matter could be tried in the High Court, I did not order the costs to be assessed on the Subordinate Court scale.

5. I shall now explain the legal basis of my decision.

Bullock and Sanderson orders

6. Paragraph 62/B/124 at p 1222 of the White Book 1999 Edn Vol 1 sets out succinctly the nature of the Bullock and Sanderson orders:

Where a plaintiff sues two defendants, making his claim against them in the alternative, and succeeds only against one of them, the Court in its discretion may order the unsuccessful defendant to pay the successful defendants costs. This may be done either by an order that the unsuccessful defendant pay the successful defendants costs direct to him (known as a "Sanderson Order" from Sanderson v. Blyth Theatre Co. [1903] 2 K.B. 533, CA) or by an order that the plaintiff pay the successful defendants costs to him and recover them from the unsuccessful defendant as part of the plaintiffs costs of the action (known as a "Bullock Order" from Bullock v. London General Omnibus Co. [1907] 1 K.B. 264, CA).

7. In my view, such orders are not limited to the cases where the plaintiffs claim against the defendants is only in the alternative. Where there is no good reason to deprive the successful defendant of his costs, then the principal consideration is whether in all the circumstances of the particular case, it would be fair and reasonable for the unsuccessful defendant (and not the plaintiff) to bear the costs of the successful defendant directly or indirectly. The usual order however is for the plaintiff to pay the costs of the defendant eventually found not liable to him, since he must prima facie be held responsible for his wrong decision to join the successful defendant in the first place. He has to bear the consequence of his own choice of defendants in litigation.

8. In Mulready v Bell Ltd [1953] 2 All ER 215, Lord Goddard stated that a Bullock (or Sanderson) order would not be appropriate where the plaintiff alleges independent causes of action against different defendants, and the respective breaches of duty are in no way connected.

9. In Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal [1996] 2 SLR 505, Yong Pung How CJ stated at p 521E that:

If the plaintiff includes an additional defendant because of his uncertainty of the law rather than the facts, the court will not make either a Bullock or Sanderson order (Poulton v Moore [1913] WN 349).

10. The following paragraph in Poulton v Moore by Lush J at 350 was also quoted by the Chief Justice:

The reason for the order in Bullock v London General Omnibus Co was that as the omnibus company had wrongly thrown the responsibility for the accident to the plaintiff on to the other defendants, they had caused the plaintiff to be in a state of uncertainty on the facts as to who was really liable, and therefore they were responsible for the extra costs he incurred in suing both defendants There is no precedent for such an order being made where the joinder of an additional defendant has resulted from the plaintiff being doubtful as to the law, nor is there any principle that I can see upon which such an order can be justified. It was the fault or misfortune of the plaintiff if he was not satisfied as to his legal rights; it certainly was not the fault of [the defendants].

11. Thus, in determining whether to grant a Bullock or Sanderson order, the following factors are relevant:

(a) What facts are reasonably ascertainable by the plaintiff before the decision is made to join the successful defendant (D1);

(b) Whether the facts themselves are unclear to such an extent that it is necessary to safeguard the plaintiffs position by bringing in D1. Where it is reasonable for the plaintiff to adopt the position that either one or the other or both defendants may be liable and hence prudence dictates that both should be joined, then a Bullock or Sanderson order may be appropriate;

(c) Of considerable importance is whether the unsuccessful defendant (D2) has tried to shift all or some of his liability to D1 or has characterised the facts such that D1 is more blameworthy and should bear a greater proportion of the damages, in which case it may be appropriate to make D2 (and not the plaintiff) shoulder D1s costs because D2 has put the plaintiff in a difficult position, thereby forcing him to join D1.

(d) Whether the plaintiffs claim against D1 and D2 is in reality separate and distinct, in which case it will be inappropriate for D2 to pay D1s costs (See Donovan v. Walters (1926) 135 L.T. 12). Being independent claims, it is unlikely for D1 to have influenced the joinder of D2. Hence, the plaintiff must answer for the costs of D1 himself.

(e) The likelihood of the plaintiff or D2 becoming insolvent may dictate whether a Bullock or Sanderson order should be made. The court has to determine whether it is more equitable to put the risk of non-recovery of D1s costs from D2 on the shoulders of the plaintiff or on D1 himself. Thus the conduct of the plaintiff vis--vis the successful defendant has to be considered.

12. I agreed with counsel for Dr Tan that Mohd bin Sapri should be applicable on the facts of the case here. Mr Hartes decision to join the hospital had been questionable. The hospital had, from the very beginning in its correspondence prior to the commencement of proceedings, rightly disabused Mr Harte of any wrong impression that Dr Tan might have been their employee, servant or agent. Neither was there any representation to that effect by the hospital or by Dr Tan. Mr Harte first sought out Dr Tan in his private clinic for his fertility treatment. Following those consultations, Mr Harte agreed to have Dr Tan perform a bilateral varicocelectomy on him at the hospital. It was at the instructions of Dr Tan that Mr Harte admitted himself into the hospital, which merely accredited Dr Tan, an independent contractor, with the use of the hospital facilities and with admitting privileges for his private patients, of which Mr...