Ng Hock Heng v Looi Kok Poh and Another

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 16 February 2007
• Neutral Citation: [2007] SGHC 25
• Docket Number: Suit No 453 of 2006 (Registrar's Appeal Nos 267 and 268 of 2006)
• Date: 16 February 2007
• Published date: 22 February 2007
• Year: 2007
• Plaintiff Counsel: Palaniappan Sundarajaj (Straits Law Practice LLC)
• Citation: [2007] SGHC 25
• Defendant Counsel: Kuah Boon Theng and Karie Goh (Legal Clinic LLC),Suresh Nair Sukumaran and Victoria Xue (Allen & Gledhill)
• Court: High Court (Singapore)
• Subject Matter: Whether workman precluded from recovering damages from doctor and hospital,Compensation and damages,Workman claiming damages against doctor and hospital for worsening of injuries,Injury worsening after surgery,Sections 3(1), 18(a) Workmen's Compensation Act (Cap 354, 1998 Rev Ed),Damages,Workman already receiving compensation from employer's insurer for injuries suffered from fall,Workman falling at place of work and suffering injuries,Workman undergoing surgery for injuries at hospital

16 February 2007 Judgment reserved.

Lee Seiu Kin J:

1 These are two appeals from the decision of the Assistant Registrar in Summons Nos. 4041 and 4050 of 2006 (“the applications to strike out”) taken out by the first and second defendant respectively. The Assistant Registrar had allowed the two defendants’ applications, and struck out the plaintiff’s Writ of Summons and Statement of Claim on the basis that they did not disclose a reasonable cause of action. After hearing the parties, I allowed the plaintiff’s appeals, and set aside the Assistant Registrar’s orders. Both defendants have, with my leave, filed appeals to the Court of Appeal. I now give the grounds for my decision.

2 The plaintiff was a senior foreman in Poh Tiong Choon Logistics Ltd (“the employer”). On 29 March 2003, the plaintiff fell at his place of work and sustained injuries to his left hand and back. He became a patient of the second defendant (“NUH”) from April 2003 and was treated by the first defendant, an Orthopaedic Consultant, for his wrist injuries.

3 Initially the plaintiff’s wrist injury was treated conservatively but it did not improve. On 17 July 2003 the first defendant carried out a surgical procedure known as therapeutic arthroscopy on the plaintiff’s left wrist. After the arthroscopy, the plaintiff continued to experience pain in his left arm and was subsequently diagnosed with Reflex Sympathetic Dystrophy (“RSD”). The plaintiff commenced this suit on 14 July 2006, alleging that the defendants had breached their duty of care to him by: (a) failing to obtain his consent to conduct a therapeutic, as opposed to diagnostic, arthroscopy on his left wrist; (b) failing to obtain his consent to insert two prosthesis (“the Kirschner wires”) into his wrist as part of the arthroscopy; and (c) failing to adequately inform him of the known complications arising from diagnostic and/or therapeutic arthroscopy.

4 The statement of claim pleaded the following facts. Sometime in June 2003 the first defendant advised the plaintiff to undergo the wrist arthroscopy in order to diagnose the cause of his continuing wrist pain. When the plaintiff told the first defendant that he was averse to surgery, the latter assured him that the procedure was safe and risk-free. However the plaintiff did not make a decision until he next saw the first defendant on 14 July 2003. On that occasion the first defendant told the plaintiff that the arthroscopy only involved two small holes on the wrist to introduce some instruments to find out the cause of the continuing wrist pain, and that it was a simple and risk-free procedure. Upon this assurance the plaintiff consented to the arthroscopy. At no point up to the surgery was the plaintiff informed by the first defendant or any other employee of the NUH that the wrist arthroscopy procedure was therapeutic as opposed to diagnostic, or about the use of any prosthesis, including the use of Kirschner Wires. The wrist arthroscopy was carried out by the first defendant on 17 July 2003 during which two Kirschner Wires were inserted. After the surgery the plaintiff continued to suffer wrist pain which was sometimes worse than before. His wrist was often swollen. As a result of this, the doctors at the NUH decided to remove the Kirscher Wires earlier than the normal period. This was done on 12 August 2003. However the pain in the plaintiff’s left hand became unbearable and crippling and he was diagnosed by the doctors at the NUH to be suffering from RSD attributable to injury to the superficial radial nerve which runs along the wrist. This injury was inflicted either during the wrist arthroscopy or during the removal of the Kirschner Wires. In addition, one of the tendons in his left wrist, the extensor pollicis longus was also severed during the arthroscopy or during the removal of the Kirschner Wires. As a consequence, the plaintiff suffered and continues to suffer from almost complete loss of use of his left hand and perpetual pain and discomfort.

5 The plaintiff seeks, inter alia, special, general and provisional damages, claiming that he had completely lost the use of his left hand as a result of the arthroscopy and was no longer able to discharge his duties as a senior foreman.

6 On 30 August 2004, two years before this suit was commenced, the plaintiff obtained an award under the Workman’s Compensation Act in the amount of $64,680 from the employer’s insurer (“the compensation award”). The quantum of this award had been based on a medical report prepared by Dr Alphonsus Chong on 3 June 2004 (“the assessment report”). It should be noted that this assessment was done almost a year after the arthroscopy had been performed. The assessment report had recommended a consolidated award of 44% for permanent incapacity. The defendants argued that since the report was based on the plaintiff’s injuries as they presented themselves at that date, ie, 3 June 2004, the injuries identified therein necessarily included the complications he had suffered from the arthroscopy.

7 The defendants contend that the plaintiff is precluded by s 18 of the Workmen’s Compensation Act (Cap 354 1998 Rev Ed) (“the Act”) from claiming damages from the defendants in the present suit as he had already recovered compensation under the Act in respect of the same injuries. Therefore the plaintiff’s Writ of Summons and Statement of Claim ought to be struck out for disclosing no reasonable cause of action under O 18 r 19(1)(a) of the Rules of Court (R5, 2006 Rev Ed) (“the Rules”).

8 The plaintiff contended that at the present stage of the proceedings, it could not be established with certainty that the award related to both the initial injuries from his fall in March 2003, as well as the injuries caused by his wrist arthroscopy. The assessment report identified the plaintiff’s injuries as being in the nature of “left wrist injury with scapholunate dissociation & lumbar spondylosis superimposed injury”. According to the plaintiff, these were the injuries which he had been diagnosed with prior to the arthroscopy. The report did not take into account the injuries to his radial nerve and EPL tendon which had been caused by the arthroscopy, nor did it refer to his current affliction with RSD.

9 In the alternative, the plaintiff averred that even if the compensation award extended to the injuries from his arthroscopy, s 18(a) of the Act did not preclude him from filing this suit. In his submission, the statutory preclusion under s 18(a) only extends to injuries compensable under the Act. However s 3(1) of the Act relates to injury the result of an accident arising out of and in the course of employment. According to the plaintiff, the injuries which were the subject of this suit are separate and distinct from the initial injuries which he had sustained during the accident “arising out of and in the course of [his] employment”. These more recent injuries to his radial nerve and EPL tendon arose independently as a consequence of the arthroscopic procedure. The defendants’ conduct of the arthroscopy amounted to novus actus interveniens which severed the chain of causation flowing from the plaintiff’s initial injury at his workplace. The injuries which the plaintiff sustained subsequent to and as a result of the surgery therefore could not be said to be injuries “arising out of and in the course of employment” and accordingly fell outside the statutory bar in s 18(a) of the Act.

10 The Assistant Registrar allowed the defendants’ applications and struck out the writ. In her opinion, it was clear that the compensation award had been based on the plaintiff’s condition as at 2004, when the assessment report was made. The plaintiff had therefore been compensated for his affliction with RSD, and was precluded by s 18(a) of the Act from attempting to recover damages from the defendants in respect of the same injury. In addition, the Assistant Registrar found that the plaintiff’s argument regarding s 3(1) of the Act was unmeritorious. Even if there had been novus actus interveniens, the fact remained that the employer’s insurer had already paid for the injury resulting from the...