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

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 29 November 2021
• Neutral Citation: [2021] SGCA 111
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 39 of 2021
• Year: 2021
• Published date: 02 December 2021
• Hearing Date: 12 August 2021
• Plaintiff Counsel: Vijay Kumar Rai and Jasleen Kaur (Arbiters Inc Law Corporation)
• Defendant Counsel: Kuah Boon Theng SC, Yong Kailun Karen and Samantha Oei Jia Hsia (Legal Clinic LLC)
• Subject Matter: Damages,Assessment,Quantum,Measure of damages,Personal injuries cases,Life expectancy,Pain and suffering damages,Loss of earnings,Aggravated and punitive damages
• Citation: [2021] SGCA 111

Andrew Phang Boon Leong JCA (delivering the judgment of the court):

The appeal before us in CA/CA 39/2021 (“CA 39”) is a sequel to our decision in Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] 1 SLR 834 (“the first CA Judgment”) in which we held the respondent, Changi General Hospital Pte Ltd (“CGH”), to be in breach of its duty of care to the first appellant, Ms Noor Azlin bte Abdul Rahman (“Ms Azlin”). CGH’s negligence caused a delay in diagnosing Ms Azlin with lung cancer, resulting in the progression of the cancer from stage I to stage IIA, the growth of the cancerous nodule and the subsequent metastasis of the nodule (at [96]–[101] and [115]–[123]). We remitted the question of loss and damage, including the quantum of damages to be awarded (if any), to the High Court judge (“the Judge”) for her determination (at [125]).

A month after the release of the first CA Judgment, Ms Azlin passed away from cancer. Her brother, the second appellant, Mr Azmi bin Abdul Rahman (“Mr Azmi”), was added as a party to the proceedings to continue with the action in his capacity as the executor of Ms Azlin’s estate. Mr Azmi does not pursue any separate causes of action in his own right against CGH.

As will become evident in the course of our judgment, this tragic turn of events fundamentally altered the factual and evidential matrix of Ms Azlin’s case against CGH. This was also, correctly, the basis upon which the Judge assessed Ms Azlin’s claims in Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd and others [2021] SGHC 10 (“the Judgment”) after a six-day trial in 2020 (“the AD Hearing”).

By way of a breviloquent overview, the Judge found that there was a causal link between CGH’s negligence and Ms Azlin’s death from lung cancer (see the Judgment at [89]). She awarded the appellants a sum of $326,620.61 in damages and $105,000 in costs (see the Judgment at [218] and [224]). CA 39 concerns only the Judge’s quantification of damages and costs. No challenge is brought against her decision on causation and liability.

After carefully considering the parties’ written as well as oral submissions, we allow CA 39 in part and award the appellants a sum of $343,020.61 in damages. We affirm the Judge’s award of $105,000 for the costs of the AD Hearing. We provide a breakdown of our award in the table below. The sections in blue reflect the areas in which no appeal is brought against the Judge’s decision.

In coming to our decision, we are deeply cognisant of the enormity of the loss and suffering caused to Ms Azlin and her loved ones. We are further aware that our award may seem inadequate when juxtaposed against the tragic and irreversible consequences of CGH’s negligence. That said, it is axiomatic that the court is bound to adjudicate on the basis of the pleaded claims before it and the evidence adduced in respect of the same. In almost all instances, the burden of proof necessarily lies on the party seeking to vindicate his claim.

In this case, our award has been limited, not by the merits of Ms Azlin’s case, but by the way in which her case has been advanced. As the Judge had observed at [6] and [94] of the Judgment, there exist various failures to adduce the requisite evidence necessary to support otherwise viable claims and to plead a number of the claims being advanced in submissions. Quite inexplicably, Ms Azlin’s case before the Judge and on appeal is being advanced on the basis that she is alive. Consequently, the appellants have not sought leave to amend their pleadings to reflect the heads of claim that are consonant with Ms Azlin’s death (namely, a claim for loss of inheritance). Furthermore, despite our express order in the first CA Judgment that “the issue of loss and damage, including quantification (if any), be remitted to the Judge with leave for the parties to refine or revise their evidence” [emphasis added] (at [125]), the appellants confirmed that they would not need to call any witnesses to give evidence on the quantification of damages during the AD Hearing.

It bears noting that these deficiencies were made known to counsel for the appellants, Mr Vijay Kumar Rai (“Mr Rai”), a year prior to the start of the AD Hearing on 24 August 2020. At the hearing of the appellants’ application for interim payment in HC/SUM 1204/2019 (“SUM 1204”) on 20 August 2019 and 21 August 2019, counsel for CGH, Ms Kuah Boon Theng SC (“Ms Kuah”), alerted Mr Rai to the fact that: some of the evidence at the Original Hearing (as defined at [17] below) was insufficient to support Ms Azlin’s pleaded heads of claims (for example, to show that out-of-pocket expenses for medical treatments and transport were incurred up to the time of Ms Azlin’s death); some of Ms Azlin’s claims would have to be amended in the light of her passing on 1 April 2019 (for example, the claims for loss of future earnings and CPF contributions); and no claim for aggravated damages had ever featured in Ms Azlin’s pleadings.

Ms Kuah reiterated her general concern with the state of the appellants’ pleadings at the Judge-led Pre-Trial Conference (“the JPTC”) on 4 November 2019. In particular, she also made known her disagreement with Mr Rai’s position that aggravated and punitive damages did not have to be pleaded. As will be seen during the course of our judgment, the failure to remedy the above points meant that a significant proportion of Ms Azlin’s losses could not be proved, pursued, and therefore compensated.

The facts and background

The legal battle surrounding Ms Azlin’s claim has been an acrimonious and lengthy one which began in 2015. This appeal is the fourth time that Ms Azlin’s claim has come before this court, and its factual background has been well-summarised in a slew of judgments, most recently in Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] 2 SLR 440 (“the Transfer Judgment”). We lay out only the most relevant facts.

The genesis of the dispute can be traced to 31 October 2007 when Ms Azlin visited the Accident and Emergency Department of CGH (“A&E department”), complaining of lower chest pain and shortness of breath. A chest X-ray was ordered (“the October 2007 X-ray”) and an opacity in the right mid-zone of her chest was noted. Ms Azlin subsequently visited CGH three more times (see the Judgment at [10]–[13]): On 15 November 2007, Ms Azlin went to CGH’s Specialist Outpatient Clinic (“SOC”) and two chest X-rays were ordered for her by Dr Imran bin Mohamed Noor (respectively, “the November 2007 X-rays” and “Dr Imran”). Dr Imran assessed that the opacity noted in the October 2007 X-ray was resolving or had resolved on its own and gave Ms Azlin an open date for her follow-up appointment. On 29 April 2010, Ms Azlin went back to CGH’s A&E department complaining of right lower chest pain. An X-ray and an electrocardiogram (“the April 2010 X-ray” and “ECG”, respectively) were ordered by Dr Yap Hsiang (“Dr Yap”). Dr Yap deemed the opacity found in the right mid-zone of her lungs to be an “incidental finding” (ie, a finding that was not related to the patient’s presenting symptoms) as its size had remained more or less the same. Dr Yap ordered that the April 2010 X-ray be reported upon and requested specifically that Ms Azlin be called back after the radiological report was out, if necessary. A radiological report was prepared and sent to the A&E department for follow-up. On 31 July 2011, Ms Azlin went back to CGH’s A&E department complaining of intermittent left lower ribcage pain. Dr Soh Wei Wen Jason (“Dr Soh”) ordered two chest X-rays (“the July 2011 X-rays”) and an ECG. Dr Soh and his supervising consultant took the view that Ms Azlin had costochondritis, a condition which is of musculoskeletal origin. Ms Azlin was discharged with analgesics. The July 2011 X-rays were sent for reporting and the report recommended a follow-up of the opacity.

On 28 November 2011, Ms Azlin went to the Raffles Medical Clinic complaining of cough, breathlessness, and blood in the sputum. On 1 December 2011, Ms Azlin returned for an X-ray (“the December 2011 X-ray”) which showed a lesion in the right mid-zone of the lung. Ms Azlin was referred to a respiratory physician at CGH’s SOC and was seen by Adjunct Assistant Professor Sridhar Venkateswaran (“Prof Sridhar”) on 15 December 2011. Among other things, Prof Sridhar ordered a Computed Tomography (“CT”) scan of Ms Azlin’s chest, which revealed a nodule (see the Judgment at [16]–[17]).

The biopsy of the nodule was conducted on 16 February 2012 by Dr Andrew Tan (“Dr Tan”). This confirmed that the nodule was malignant and that Ms Azlin had cancer originating from it. The stage of the lung cancer was not yet known at that point in time (see the Judgment at [18]).

On 1 March 2012, Prof Sridhar explained to Ms Azlin that there was a good chance that she could have a complete cure with a lobectomy. Ms Azlin was clinically staged as having stage I lung cancer. On 29 March 2012, she underwent a lobectomy and one-third of her right lung was resected. The tumour measured 3.0cm and was pathologically diagnosed as stage IIA non-small cell lung cancer. Ms Azlin underwent four rounds of adjuvant chemotherapy for about three months and CT scans every four months (see the Judgment at [19]).

In August 2014, a recurrence of Ms Azlin’s lung cancer occurred. This was discovered on a CT scan dated 26 August 2014. A biopsy confirmed that the lung cancer had progressed to stage IV. In December 2014, an analysis of the tumour that was resected via lobectomy in March 2012 was done to determine its mutation type. The resected tumour from 2012 was retrospectively found to be positive for a rare ALK-gene arrangement and Ms Azlin was retrospectively diagnosed in 2014 to have been suffering from ALK-positive lung cancer in 2012 (see the Judgment at [20]).

From 22 January 2015 to 8...