Ho Wah Nam v Tan Kim Siang Luke

Tan Teck Ping Karen AR:

[1] The Plaintiff is a retiree and suffers a hearing ailment.

[2] On or about 4 June 2008, the Plaintiff consulted the 1 Defendant, a Ear Nose and Throat Consultant, in respect of the hearing ailment. The 1 Defendant examined the Plaintiff and advised him to undergo a stapedectomy (“the procedure”).

[3] The Plaintiff agreed to undergo the procedure and the procedure was scheduled for 5 August 2008 at the 3 Defendant’s hospital. The 2 Defendant was the anaesthetist who assisted in the procedure.

[4] The Plaintiff went into cardiac arrest during the procedure and the procedure was aborted. The Plaintiff was resuscitated and was discharged from the 3 Defendant’s hospital on 14 August 2008.

[5] The Assessment of Damages was held pursuant to an Order of Court dated 1 December 2010, ordering that “[the] amount of damages to be awarded to the Plaintiff against any or all of the Defendants in this action at trial, be determined at trial before a Registrar pursuant to Order 36 Rule 1 of the Rules of Court without any finding of liability against any or all of the Defendants”.

[6] Therefore, the role of the court in this assessment of damages is limited to the determination of the amount of damages to be awarded to the Plaintiff against any or all of the Defendants. It is not the role of this court to make any determination on the issue of liability.

[7] The Plaintiff’s claim was for “... pain, trauma and suffering as a consequence and been put to loss and expense [sic]. He has also suffered irreparable and permanent damage to his heart.

[8] It was the Defendants’ case that the Plaintiff has not proven his case in damages, on a balance of probabilities, or at all.

[9] It is trite law that the burden of proof lies with the Plaintiff to provide evidence that will support his claim for damages.

[10] In Cheong Ghim Fah and another v Murugian s/o Rangasamy [2004] 1 SLR(R) 628 (“Cheong Ghim Fah”) at [30], V K Rajah JC (as he was then) said:

[11] The only witness called to give evidence on behalf of the Plaintiff was the Plaintiff himself. None of the doctors who examined the Plaintiff were called to give evidence on the Plaintiff’s behalf, though their medical reports were included in the agreed bundle of documents.

[12] In Jet Holdings Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals [2006] 3 SLR(R) 769 (“Jet Holdings”) it was held by the Court of Appeal at [44] :

[13] The Court of Appeal in Jet Holdings went on to observe at [51] that:

[14] It was clearly established during the hearing of the assessment of damages that there was no agreement between parties to dispense with the attendance of Plaintiff’s doctors. The solicitors for the 1 and 2 Defendants clearly stated that the medical reports of the doctors that had examined the Plaintiff had been agreed to only in respect of authenticity. There was no agreement as to the content of the medical reports. This point was brought to the attention of the Plaintiff’s solicitor during the hearing:

[15] Since the Defendants had raised an objection at the time the documents were marked and admitted into evidence, it is clear that the truth of the contents of the medical reports will have to be proved by the Plaintiff. However, the Defendants have accepted that, insofar as their expert, Dr Lim Yean Teng, had relied on parts of the medical records and reports of the other doctors, in forming his expert opinion, and any other medical records and reports relied on by the Defendants in their submission, there was no dispute on the contents, and there was no need for the Plaintiff to prove its contents, subject to the Plaintiff accepting Dr Lim Yean Teng’s reading of the report and the conclusions drawn by Dr Lim Yean Teng and the submissions made by the Defendants.

[16] At the close of the Plaintiff’s case, the Defendants withdrew the Affidavits of Evidence-in-Chief of the 1 and 2 Defendants as well as Dr Cheok Cheng Soon Christopher, Senior Consultant Psychiatrist and Head of Department for Psychological Medicine at Khoo Teck Puat Hospital. The only witnesses that gave evidence on behalf of the Defendants were:

(a) Dr Lim Yean Teng, Senior Consultant in Cardiology Associates Pte Ltd and a Visiting Consultant to National University Hospital; and

(b) Mr Tan Keng Chew, a private investigator.

[17] The Plaintiff asked the Court to draw an adverse inference against the 1 and 2 Defendants for failing to give evidence or subject themselves to cross-examination after filing their affidavits of evidence-in-chief.

[18] I wish to emphasise that the decision by the 1 and 2 Defendants not to give evidence does not in any way reduce the burden on the plaintiff to prove his case.

[19] The principles to be considered in drawing an adverse inference were set out by the High Court in Cheong Ghim Fah at [42]. The High Court agreed with the English principles to be considered in drawing an adverse inference as follows:

[20] At the close of the Plaintiff’s case, the 1 and 2 Defendants took the position that, since the Plaintiff had not produced any evidence relating to the cardiac arrest and resuscitation, the 1 and 2 Defendants did not have to give evidence as there was nothing for them to rebut in terms of factual evidence. This was a legitimate reason for not calling the evidence of the 1 and 2 Defendants and I find that no adverse inference should be drawn against the 1 and 2 Defendants.

[21] I now turn to consider the heads of damage that have been claimed by the Plaintiff.

[22] The Plaintiff’s claim for general damages was for:

(a) the cardiac arrest and damage to his heart;

(b) Mild post traumatic stress disorder;

(c) Aches, pains and headaches;

(d) Anxiety and Depression; and

(e) Brain injury.

[23] It is not disputed that the Plaintiff suffered a cardiac arrest during the procedure. The 1 and 2 Defendants, however, take the position that save for the particulars of general damages that has been stated in paragraph 8 above, the Plaintiff is not entitled to any award of damages which has not been specifically pleaded. Therefore, since the Plaintiff did not provided particulars of the cardiac arrest, resuscitation and subsequence recovery, the 1 and 2 Defendants submitted that no award should be made in respect of this item.

[24] The Plaintiff has pleaded that he “has had to endure pain, trauma and suffering as a consequence and been put to loss and expense [sic]” as a consequence of the Defendants’ negligence and breach of duty of care. Since the cardiac arrest, resuscitation and subsequent recovery were consequences arising from the alleged negligence and breach of duty of care, I am of the view that there was no need to plead full particulars of these heads of damage.

[25] However, the Plaintiff’s evidence in his affidavit of evidence-in-chief and which he confirmed during cross examination was that he had no recollection of the events that he had gone through during the procedure. Since the Plaintiff had no awareness of the cardiac arrest and subsequent resuscitation, no award is made in respect of this item. See H.West & Son Ltd and Another v Shepherd [1964] AC 326.

[26] However, I do accept that the Plaintiff would have suffered some pain and suffering during the recovery period arising from the cardiac arrest and resuscitation.

[27] The authority relied on by the Plaintiff in quantifying his claim for damages is the Australian case of Dobler v Kenneth Halverson and Ors [2007] NSWCA 335 (“Dobler”) in which the Plaintiff, a boy of 18 years old, suffered a cardiac arrest and hypoxic brain damage and was left with catastrophic injuries. The Australian courts awarded the sum of AUD$8,086,000. While the Plaintiff conceded that this case is significantly different from the present case as the Plaintiff was 18 years ago and suffered irreversible brain damage, the Plaintiff argued that this case may be relied on as the common fact was that both Plaintiffs suffered a cardiac arrest through no fault or contribution of their own. Based on this common fact, the Plaintiff submitted that “it would not be unreasonable to seek compensation for a sum of S$1 million for the cardiac arrest, Post Traumatic Stress Disorder, Brain Injury, headaches, aches and pains and the anxiety and depression.” The Plaintiff also submitted that “the Court should also take note that [the father of the Plaintiff in Dobler] received $550,000.00 (Australian) for nervous shock alone. Mr Ho (the Plaintiff) suffered much more than nervous shock and as such should be awarded much more.”.

[28] With respect, I fail to see how Dobler assists the Plaintiff in any way in his claim. It is a flying leap of logic to claim that the Plaintiff should be awarded the sum of S$1 million for the alleged damages that he has suffered just because the Plaintiff suffered the cardiac arrest through no fault of his. There is also no basis for saying that, since the father of the Plaintiff in Dobler was awarded AUS$550,000 for nervous shock, the Plaintiff here should be awarded much more. There is no evidence before this court that the Plaintiff here suffered nervous shock or that he “suffered much more than nervous shock”.

[29] The Defendants submitted that a reasonable award for this item would be the sum of $3,000. This is consistent with the Guidelines for Assessment of General Damages in Personal Injury Cases (Subordinate Courts and Academy Publishing 2010) where it is stated at p 40 that “[g]enerally, $2,000 per rib although overlapping must be taken into consideration, adding $3,000 - $4,000 for pneumo-thorax or haemo-thoraz (where the rib bone pierces the lung or heart)” in cases involving “[b]ruises and fractures of ribs, causing serious pain and disability over a period of weeks but there are no lasting disabilities. Prognosis is good and full recovery is achieved in a few weeks.”.

[30] While I do not have any medical evidence of the Plaintiff’s condition during the recovery period following the cardiac arrest and resuscitation, I am of the view that it would be reasonable to award some damages on the basis that there was probably some bruising and tenderness of the chest following the cardiac arrest and the resuscitation. Therefore, I award the sum of $4,000 for the pain and suffering consequent to the cardiac arrest and resuscitation.

[31] The Plaintiff claimed that he suffered permanent and irreversible damage to his heart as a result of the procedure.

[32] At this point, I would emphasis again that the burden of proof is on the Plaintiff to adduce medical evidence that he has suffered permanent and irreversible damage to his heart caused by the cardiac arrest. Since the Plaintiff has not called any doctor to give evidence on his behalf, the only evidence before this court was the evidence of Dr Lim Yean Teng.

[33] Dr Lim Yean Teng’s evidence was that “the clinical findings [at the review on 22 February 2012] indicated that the patient did not have signs of enlarged heart or heart-pump failure, which are some of the common physical findings in a patient with significant heart muscle damage from a heart attack.”.

[34] The Plaintiff had produced medical reports diagnosing triple vessel coronary artery disease (CAD). Dr Lim Yean Teng’s expert opinion was that the CAD pre-existed the procedure. Dr Lim Yean Teng explained that “whilst heart attack, which is due to sudden formation of a occlusive blood clot, may occur suddenly and in minutes, antherosclerotic plaques (or atheromas), may require 10-15 years for full development and hence, significant blockage in heart arteries is not a condition that can develop in weeks or months.”.

[35] It was also Dr Lim Yean Teng’s expert opinion that the CAD was not worsened by the cardiac arrest.

[36] I have no reason to doubt Dr Lim Yean Teng’s evidence and accept that there was no significant heart damage arising from the cardiac arrest and that the CAD was a pre-existing condition that was not caused by the cardiac arrest. Therefore, no award is made for the Plaintiff’s claim for permanent and irreversible damage to his heart.

[37] In the written submissions, the Plaintiff made a claim for mild post traumatic stress disorder, anxiety and depression. In the pleadings, the Plaintiff pleaded that he suffers from fear and trauma of any kind of surgical procedure or intervention and that he is mentally traumatized.

[38] The Plaintiff did not call any medical experts to give evidence on his behalf to substantiate the above claims.

[39] The Defendants had initially filed the Affidavit of Evidence-in-Chief of Dr Cheok Cheng Soon Christopher but this was subsequently withdrawn. Therefore, Dr Cheok Cheng Soon Christopher’s evidence was not before me and the court will not take cognisance of his medical evidence as urged by the Plaintiff in his written submissions. At this point, I would also add that if the Plaintiff had wanted to rely on Dr Cheok Cheng Soon Christopher’s evidence, it was open to the Plaintiff to subpoena Dr Cheok Cheng Soon Christopher to give evidence on the Plaintiff’s psychiatric conditions. Having not done so, the Plaintiff cannot now argue that the Court should rely on Dr Cheok Cheng Soon Christopher’s evidence, which was withdrawn.

[40] Since there is no evidence before this court that the Plaintiff suffered from any psychiatric illness, no award is made for this item.

[41] The Plaintiff faced a similar problem with his claim for aches, pains and headaches. There was no medical evidence that these were caused by or arose from the procedure.

[42] While Dr Lim Yean Teng did confirm that the Plaintiff complained of pain and headaches when he was examined. Dr Lim Yean Teng’s evidence is that the chest pain is not exertion related and is due to breathing in. Dr Lim Yean Teng also stated that he was not in the position to assess the headaches.

[43] In fact, the Plaintiff’s solicitor acknowledged in his submissions that the source of the pain could not be determined with accuracy.

[44] Since there is no evidence that the pain and headaches were caused by or arose due to the procedure, no award is made for this item.

[45] The Plaintiff made a claim for brain injury in his written submissions. However, the Plaintiff did not include a claim for this nor has he provided any particulars for brain injury in his pleadings. The Plaintiff has also not led any evidence of this during the hearing. Therefore, the claim in respect of this item is not allowed.

[46] The Plaintiff has included a claim for future medical care and expense under his claim for General Damages. However, no evidence was produced by the Plaintiff as to the future medical care and expenses that may be incurred. In addition, it appeared from the Plaintiff’s written submissions that he was not pursuing this claim as this claim was not included in the heads of general damages in the submissions.

[47] I would also add that the medical evidence from Dr Lim Yean Teng was that any medical expenses incurred after 17 September 2008 was not related to the procedure.

[48] Therefore, there is no award for future medical care and expenses.

[49] The Plaintiff’s claim for special damages as pleaded in the Statement of Claim is as follows:

[50] The Defendants have agreed to items (a), (c) and (d). In respect of item (b), there have been no invoices or documents in support of the same. Therefore, the claim in respect of item (b) is not allowed.

[51] On 19 April, 2012, the Plaintiff wrote to the Defendants setting out further special damages as follows:

[52] The items claimed in the above paragraph were not pleaded as special damages in the pleadings and, therefore, should not be allowed. However, since the Defendants are agreeable to items 1 to 3, 7 and 8, I will allow these items. No award is made in respect of the balance of the items in the above table.

[53] Therefore, the total amount awarded for special damages is $2,708.55.

[54] In conclusion, the amount awarded is as follows:

(a) General Damages - $4,000.

(b) Special Damages - $2,708.55.

(c) Interest at half of 5.33% on special damages from the date of service of the writ to the date of judgment and interest at 5.33% on general damages for pain and suffering from the date of the service of the writ to the date of judgment.

(d) Costs on the Magistrates’ Court scale to be agreed or taxed.

(e) The usual consequential orders to apply.