Li Siu Lun v Looi Kok Poh and another

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 29 May 2015
• Neutral Citation: [2015] SGHC 149
• Plaintiff Counsel: Roderick Edward Martin SC, Eugene Nai, Ooi Jian Yuan (Martin & Partners) instructed by Tan-Goh Song Gek Alice (A C Fergusson Law Corporation)
• Docket Number: Suit No 245 of 2009 (Registrar’s Appeal No 390 of 2013 and Registrar’s Appeal No 391 of 2013)
• Date: 29 May 2015
• Hearing Date: 06 March 2014,16 January 2015,29 August 2014,29 October 2014
• Subject Matter: Conspiracy,Aggravation,Damages,Assessment,Tort
• Year: 2015
• Citation: [2015] SGHC 149
• Defendant Counsel: Lek Siang Pheng, Audrey Chiang, June Hong (Rodyk & Davidson LLP)
• Court: High Court (Singapore)
• Published date: 06 June 2015

Belinda Ang Saw Ean J: Introduction

The plaintiff, Mr Li Siu Lun (“Mr Li”), is a British citizen who resides in Hong Kong. He is self-employed and trades in property and stocks. The second defendant, Gleneagles Hospital (“Gleneagles”), is a well-known private hospital in Singapore and is owned by Parkway Hospitals Singapore Pte Ltd.

Sometime in April 2006, Mr Li consulted the first defendant, Dr Looi Kok Poh (“Dr Looi”), at his clinic in the Gleneagles Medical Centre in relation to stiffness in his right hand and wrist. Dr Looi performed surgery on Mr Li’s right hand and wrist on 26 April 2006. Unfortunately, the surgery was unsuccessful. Mr Li subsequently sued Dr Looi and Gleneagles for the botched surgery on 16 March 2009.

In the course of the proceedings, Dr Looi, on 21 June 2010, withdrew his Defence to Mr Li’s action in negligence and for trespass to person (ie, battery) in connection with a second procedure that was performed on Mr Li’s right hand and wrist without his prior consent. Dr Looi concurrently consented to Mr Li entering interlocutory judgment with damages to be assessed. Dr Looi has since settled Mr Li’s consent judgment at $160,000 plus costs.¹ The taxation of Mr Li’s bill of costs of the action against Dr Looi was also settled by consent at a global figure of $102,000 vide Order of Court dated 18 March 2014.²

Gleneagles, on the other hand, continued to resist Mr Li’s action until the third day fixed for the trial. By then, Mr Li’s pleaded case against Gleneagles consisted of various causes of action which included the tort of conspiracy to injure by unlawful means. The conspiracy claim against Gleneagles concerned an addition of a second procedure made to Mr Li’s consent form post-surgery by a nurse in the employ of the hospital. On 14 September 2011, with the consent of Gleneagles, interlocutory judgment with damages to be assessed was entered in favour of Mr Li in respect of all causes of action brought against the hospital (“the 2011 Consent Judgment”).

Mr Li elected to have his damages assessed for conspiracy to injure by unlawful means. The assessment of damages hearing before the Assistant Registrar (“the AR”) took four days from 25 to 30 September 2013. Mr Li does not speak English and gave his testimony in Cantonese with the aid of an interpreter in the assessment hearing.

The AR awarded $250,000 as damages for unlawful means conspiracy. He awarded compensatory damages in the sum of $10,000 for the time and effort spent by Mr Li in pursuing his claim against Gleneagles. The bulk of the award in the sum of $240,000 was for aggravated damages for distress.

Gleneagles appealed against the AR’s decision on damages in RA 390 of 2013 (“RA 390”). Mr Li cross-appealed vide RA 391 of 2013 (“RA 391”). Mr Li’s appeal alleged, amongst other things, that the amount of the award for compensatory damages should be higher than $10,000; that higher aggravated damages should have been awarded; and that punitive damages should have been allowed. Gleneagles cross-appealed against the quantum of the AR’s award and costs. Gleneagles argued that the AR should not have awarded any damages (general and aggravated damages) in the absence of supporting evidence as to the amount of Mr Li’s claim for damages.

At this juncture, I hasten to add that the quantification of Mr Li’s pecuniary loss was not so straightforward. One area of concern was how Mr Li’s pecuniary loss was to be measured or quantified. Another area of concern, amongst others, was whether Mr Li should only get nominal damages, having not led any evidence as to the amount of the fact of damage in relation to his cause of action in conspiracy by unlawful means for which liability was established by virtue of the 2011 Consent Judgment. In addition, I note that the AR awarded $240,000 as aggravated damages for distress, treating it as a free-standing and distinct head of loss. This judgment will determine some issues of principle in relation to the claim for aggravated damages for conspiracy. They are: Whether aggravated damages are recoverable in the tort of conspiracy by unlawful means; Whether it is permissible in law to award aggravated damages for distress as a free-standing head of loss, or is such compensation simply given to augment general damages awarded under other heads of claim; and Whether the principle of proportionality ought to apply in assessing an award of aggravated damages for distress.

As many of these issues of principle were not well-ventilated in the parties’ submissions, I directed the parties to submit on, inter alia, the above issues on 9 January 2015. The parties submitted their responses on 16 January 2015.

I should also at the outset point out that the parties cited numerous authorities and raised a number of subsidiary points in their submissions. I have not found it necessary to refer to all of them in this judgment.

Background facts

I need only summarise the relevant background facts which are as follows.

As stated, Mr Li was a patient of Dr Looi. The surgery took place on 26 April 2006 at Gleneagles. Unfortunately, Mr Li’s condition worsened after surgery. He was unable to stretch out or straighten his little finger. During further consultations with Dr Looi and other doctors, who were consulted for a second opinion, Mr Li suspected that Dr Looi might have botched up the surgery since it had gravely affected the functioning of his right hand. This spurred Mr Li to obtain a copy of his operation report, which was released to him by Gleneagles on 11 August 2006. A few days later on 25 August 2006, Mr Li requested a copy of his operation consent form. Gleneagles’ staff then sought Dr Looi’s permission (an administrative step that was required under the hospital’s procedure) before the release of a copy of Mr Li’s operation consent form to him. However, Dr Looi did not give his permission and Mr Li left the hospital empty-handed. I will now elaborate on the operation consent form that was central to the current proceedings.

Prior to the surgery, Mr Li had signed a document entitled “Consent for Operation or Procedure form” (“the Consent Form”) that was completed by Ms Chew Soo San (“Nurse Chew”), a senior staff nurse of Gleneagles. At that stage, Mr Li’s express consent given prior to surgery related only to a single procedure to treat “Tenolysis of the right hand”. Mr Li’s complaint against Dr Looi and Gleneagles was that no prior consent was given for the other procedure that was performed on him, namely, “Ulnar Neurolysis and Repair” (“the second procedure”).

It subsequently transpired that Nurse Chew had, at the request of Dr Looi, added the second procedure to the Consent Form post-surgery. Between July and August 2006, Dr Looi contacted Nurse Chew to get her to make the addition to the Consent Form. Even though she was initially reluctant to do what Dr Looi had wanted, Nurse Chew allegedly relented after Dr Looi gave his assurance that he had carried out the second procedure and that he had also explained the second procedure to Mr Li. Nurse Chew then wrote the words “and Ulnar Neurolysis and Repair” (ie, the second procedure) on the Consent Form using a pen with the same ink colour.

On 28 August 2006, Dr Looi gave his permission to Gleneagles to release a copy of the Consent Form to Mr Li. Gleneagles then contacted Mr Li twice between August 2006 and May 2007 to collect his copy of the Consent Form. Eventually, Mr Li collected his copy of the Consent Form on 8 May 2007. Mr Li also sighted the original Consent Form on 8 August 2007.³

Mr Li was certain that he had not consented to the second procedure.⁴ He suspected that the words “and Ulnar Neurolysis and Repair” had been added to the Consent Form. Around July or August 2007, Mr Li alerted Gleneagles that the Consent Form could have been tampered with.

As mentioned, Mr Li sued Dr Looi and Gleneagles on 16 March 2009. In December 2009, Mr Li served Interrogatories on Nurse Chew, and in January 2010, Nurse Chew answered the Interrogatories. She admitted that she amended the Consent Form by adding the words “and Ulnar Neurolysis and Repair” at the request of Dr Looi sometime in July or August 2006.

Nurse Chew’s answers to the Interrogatories were filed on 4 January 2010. Several months later, Dr Looi withdrew his Defence and consented to judgment being entered against himself on 21 June 2010. As stated, Dr Looi has since settled Mr Li’s claim against him for $160,000 and costs at $102,000 (at [3] above).

In relation to his case against Gleneagles, Mr Li amended his Statement of Claim twice after Nurse Chew answered the Interrogatories. The amendment to the Statement of Claim on 5 February 2010 (ie, Amendment No 2) elaborated on the claim for breach of contract by Gleneagles in failing, amongst other things, to furnish Mr Li with an accurate set of medical records documenting his consent, allowing the alteration/amendment of his medical records without his knowledge and consent, and failing to inform him of the amendment/alteration. The next amendment to the Statement of Claim (ie, Amendment No 3) was filed on 26 July 2010. Mr Li introduced two additional causes of action: (a) breach of statutory duty to keep and maintain proper and accurate medical records, and (b) conspiracy to injure Mr Li by unlawful means. There were two further amendments to the Statement of Claim. The amendments filed on 18 July 2011 (ie, Amendment No 4) were: (a) to introduce claims in negligence and for breach of fiduciary duty, and (b) to advance Mr Li’s claim for aggravated and punitive damages.

For completeness, I should mention that the final amendment to the Statement of Claim on 14 August 2013 (ie, Amendment No 5) was made post the 2011 Consent Judgment. The amendment was to clarify that the claim for loss of accurate records and consequential financial loss were claims in general and special...