Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 09 June 2021
• Neutral Citation: [2021] SGCA 59
• Published date: 12 June 2021
• Docket Number: Originating Summons No 9 of 2021
• Year: 2021
• Hearing Date: 19 April 2021
• Plaintiff Counsel: Vijay Kumar Rai and Jasleen Kaur (Arbiters Inc Law Corporation)
• Citation: [2021] SGCA 59
• Defendant Counsel: Kuah Boon Theng SC, Yong Kailun Karen and Samantha Oei Jia Hsia (Legal Clinic LLC)
• Court: Court of Appeal (Singapore)
• Subject Matter: Courts and Jurisdiction,Transfer of cases,Judges

Andrew Phang Boon Leong JCA: Introduction

A little over two centuries since the founding of modern Singapore by the British and slightly over half a century since its establishment as an independent nation state, a profound and momentous change has been made to the Singapore court system. On 2 January 2021, the Appellate Division of the High Court (“the AD”) was established pursuant to the coming into force of the Supreme Court of Judicature (Amendment) Act 2019 (Act 40 of 2019) (“SCJA(A)”). This introduced wide-ranging amendments into the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”).

As a result of this, Singapore now has a court which in some respects is akin to an intermediate appellate court. The Court of Appeal remains the apex court whilst the AD is situated between the Court of Appeal on the one hand and the General Division of the High Court (“Gen Div”) on the other. The Gen Div was formerly known as “the High Court of Singapore” and all legally eligible appeals from it would be heard by the Court of Appeal. At the time of the writing of this judgment, the AD has heard its first appeal case on 28 May 2021, with six more distinct cases scheduled for hearing during the week commencing 12 July 2021.

The reasons for the establishment of the AD have both quantitative as well as qualitative roots, which (as we shall see in a moment) are intertwined and interact to accomplish the wider mission of enhancing the administration of justice in Singapore as well as developing Singapore law in a manner that is indigenously strong yet international in outlook.

From a quantitative perspective, the restructuring of the Singapore court system in the manner just described is both necessary and timely. In particular, the Court of Appeal has experienced an enormous growth in its caseload for both criminal as well as civil matters. For example, in 2013, 314 civil and criminal matters were filed in the Court of Appeal; by 2018 (a mere five years later), the number had increased by 56% to 490. Just as importantly (and from a qualitative perspective), the cases that have come before the Court of Appeal have become increasingly complex. The combination of these factors has stretched the resources of the Court of Appeal. Interim measures such as increasing the number of sitting days for the Court of Appeal, whilst effective in the short term, could not furnish a long-lasting and sustainable solution (see the Second Reading of the Supreme Court of Judicature (Amendment) Bill (Bill No 33/2019), Singapore Parliamentary Debates, Official Report (5 November 2019), vol 94 (Mr Edwin Tong Chun Fai, Senior Minister of State for Law (“Senior Minister of State”)) (“the 2019 Parliamentary Debates”) as well as the Address delivered at the Opening of The Legal Year 2020 on 6 January 2020 by the Honourable the Chief Justice Sundaresh Menon at paras 9−10).

Turning to specific developments proper, under the new regime the AD will hear a portion of the civil appeals from the Gen Div. As already alluded to at the outset of this judgment, all such appeals would have previously been heard by the Court of Appeal as the then sole appellate court. With the present structure, the AD serves the purpose of alleviating the aforementioned growing caseload of the Court of Appeal (from a quantitative perspective) whilst simultaneously permitting the latter to focus its resources on matters which would benefit from its expertise as the apex court of the land (from a qualitative perspective). It should also be noted that the amendments introduced by the SCJA(A) aim to preserve the status quo in so far as the powers and jurisdiction of the Gen Div (ie, the former High Court) are concerned.

It bears mention that whilst in the vast majority of cases, once an appeal has been heard by the AD, the AD will serve as the final appellate court, there is nevertheless provision for a tightly confined and highly limited avenue of appeal to the Court of Appeal. The stringent requirements (which I elaborate upon below at [7], [38] and [61]) are not surprising as a liberal route that frequently bypasses the AD would result in a severe undermining of the rationale for establishing the AD in the first place. That having been said, in the interests of justice, there nevertheless exist provisions that will enable – in rare and exceptional instances – a qualifying appeal to be heard by the Court of Appeal.

In a broad sense, there are two avenues by which cases on the AD’s docket may be heard by the Court of Appeal. The first is where leave to appeal against a decision of the AD is sought and granted by the Court of Appeal pursuant to s 47 of the SCJA. In this situation, it should be noted that the AD has already heard an appeal and delivered its decision. It follows that any further appeal to the Court of Appeal would only be granted in extremely rare situations (which I elaborate upon below at [38]).

The second is where an appeal is transferred from the AD to the Court of Appeal pursuant to s 29D(1)(a) of the SCJA. Unlike the first situation, this particular avenue or route bypasses the AD in so far as the Court of Appeal would hear the appeal instead of the AD; put simply, the appellant concerned “leapfrogs” the AD and goes straight to the Court of Appeal. Indeed, the present application falls within this particular category. More specifically, it is an application by the appellants to transfer their appeal (“the Appeal”) against the decision of the High Court judge (“the Judge”) in Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd and others [2021] SGHC 10 (“the Judgment”) from the AD to the Court of Appeal.

It should also be noted that this application in CA/OS 9/2021 (“OS 9”) is the first contested application to transfer an appeal from the AD to the Court of Appeal. It would therefore be apposite to first elaborate on the background and context of the amendments that brought the AD into operation as well as on the statutory provisions and principles governing the transfer of appeals from the AD to the Court of Appeal. However, before proceeding to do so, I set out the particular facts and background to the present application. In addition to their usual importance, the precise facts and circumstances of the present case are – as we shall see – even more significant, not least because the prior issues relating to the substantive liability of the respondent had, in fact, already been dealt with by the Court of Appeal in prior proceedings (see Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] 1 SLR 834 (“the first CA Judgment”)).

Facts and background

To say that the case has had a long tail is to put it mildly. The genesis of the dispute can be traced to 31 October 2007 when Ms Noor Azlin bte Abdul Rahman (“Ms Azlin”) visited the Accident and Emergency Department of the respondent, Changi General Hospital Pte Ltd (“A&E” and “CGH”, respectively), complaining of lower chest pain and shortness of breath. Ms Azlin subsequently visited CGH three more times (specifically, on 15 November 2007, 29 April 2010 and 31 July 2011). On all four occasions, X-rays and other medical procedures revealed an opacity in Ms Azlin’s lungs. It was only on 16 February 2012 that a biopsy of the growth of abnormal tissues (ie, the nodule) in Ms Azlin’s lungs revealed that the nodule was malignant.

Ms Azlin commenced legal proceedings against CGH on 20 January 2015 in HC/S 59/2015 (“Suit 59”). Her claim was dismissed by the Judge in Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] 3 SLR 1063 (“the first HC Judgment”) after a 28-day trial (“the Original Hearing”). Ms Azlin appealed and her appeal in CA/CA 47/2018 (“the Original Appeal”) was allowed in part by the Court of Appeal in the first CA Judgment.

The most relevant findings in the first CA Judgment can be summarised briefly: First, Ms Azlin had shown, on a balance of probabilities, that she had lung cancer by July 2011 (see the first CA Judgment at [105] and [114]). Second, CGH had breached its duty of care to Ms Azlin by failing to ensure that there was proper follow-up in her case even though the radiological reports from April 2010 and July 2011 recommended follow-up on the opacity in the right mid-zone of her chest. There were also serious inadequacies in CGH’s patient management system (see the first CA Judgment at [96]–[101]). Third, CGH’s negligence caused a delay in diagnosing Ms Azlin with lung cancer (see the first CA Judgment at [116]) which, more likely than not, caused her to suffer from nodal metastasis and all the consequences that may have followed (see the first CA Judgment at [122]). Fourth and finally, the case was remitted back to the Judge to assess and quantify the loss and damage occasioned to Ms Azlin due to the delayed diagnosis of lung cancer (see the first CA Judgment at [124]–[125]).

As will be seen later, it is of particular relevance to OS 9 that Suit 59 was not bifurcated. This meant that while the Original Appeal focussed on the Judge’s finding that CGH was not liable for the losses occasioned to Ms Azlin, a portion of the evidence (albeit somewhat lacking) before the Court of Appeal was relevant to the quantification of her losses.

Ms Azlin passed away on 1 April 2019 from lung cancer, a month after the first CA Judgment was released. After her passing, the second appellant, Mr Azmi bin Abdul Rahman (“Mr Azmi”), her older brother, was added as a party to continue the action in his capacity as executor of her estate (“the Estate”) .

The Judge heard the parties on damages over a 6-day trial in August and September 2020 (“the AOD Hearing”) and released the Judgment on 19 January 2021. She awarded the Estate a sum of $326,620.61. This was broken down as follows: $304,000 in general damages comprising $250,000 for pain and suffering and loss of...