Li Siu Lun v Looi Kok Poh and another

Jordan Tan AR:

[1] The 2 defendant, Gleneagles Hospital (“Gleneagles”), consented to an interlocutory judgment entered in favour of the plaintiff, Mr Li Siu Lun (“Mr Li”), for a claim in the tort of conspiracy. The proceedings before me were for the assessment of damages between Mr Li and Gleneagles. The claim between Mr Li and the 1 defendant, Dr Looi Kok Poh (“Dr Looi”) has been settled.

[2] Mr Li is a British citizen but is resident in Hong Kong. He speaks no English and gave his testimony in Cantonese with the aid of an interpreter. He is self-employed and trades in property and stocks. He had sought treatment from Dr Looi who was operating a clinic at Gleneagles. He had consented to a single surgical procedure, namely, “tenolysis of the right hand”. On the day of the surgery, 26 April 2006, however, another procedure, namely, “ulnar neurolysis and repair”, was performed in addition to the original procedure Mr Li had consented to. His consent form was also doctored to add the words “and ulnar neurolysis and repair” even though he had given no consent to such a surgery. He emerged from the procedure with his hand in a worse condition: post-surgery he could not even straighten his little finger.

[3] Mr Li filed a suit against Dr Looi and Gleneagles. He did not know for certain at the time what had transpired but he suspected that his consent form had been doctored. Even though he could not read English, he surmised that the consent form had been altered because of the additional words.

[4] Both defendants resisted the suit. Mr Li sought to find out the truth by making an application to the court for a Gleneagles nurse, Ms Chew Soo San (“Ms Chew”), to answer various questions. The defendants resisted that application. Mr Li succeeded and the truth emerged from Ms Chew’s answer to the interrogatories. Ms Chew had altered the consent form without Mr Li’s knowledge but she had done so under the instruction of Dr Looi.

[5] In the light of this, Dr Looi applied for judgment to be entered against himself and the claim between Mr Li and Dr Looi was settled. Gleneagles, however, persisted in its defence. The evidence showed that Gleneagles had conducted an investigation sometime after the surgery. Although not much has been revealed about the investigation, a Gleneagles Group Senior Manager, Mrs Ruth Quek had sent an internal email dated 27 August 2007 to other staff stating that:

[6] Therefore, it is a reasonable inference that Gleneagles was already aware of the fact that the consent form had been altered by the end of August 2007 and as Mr Roderick Martin SC, counsel for the Mr Li, put it, even if the investigations are still on-going to-date, a position Gleneagles takes, it would have known that the consent form had been altered at the time this email had been drafted and certainly at the time when this action was initiated. In cross-examining the Gleneagles representatives, Mr Martin had sought to pursue a line of questioning to find out if the lawyers for Gleneagles also knew the truth when Gleneagles had filed its defence and resisted the application for interrogatories to be served on Ms Chew. I disallowed this line of questioning as the communications between Gleneagles and its lawyers are privileged.

[7] I should also note that although Gleneagles had persisted in its defence, at the trial, it consented in September 2011 to interlocutory judgment being entered against it. I turn now to set out my decision on the assessment of damages.

[10] Mr Li had also argued that the assessment of damages proceedings should be construed as “other proceedings”. In making this argument, he relies on the following passage in Garnesan Carlose at [19]:

[13] Before the trial judge, Gleneagles and Mr Li consented to an interlocutory judgment which stated as follows:

[18] Mr Li had sought to ground this head of damages on an alleged breach of a common law right of access to medical records fortified by Regulation 12 of the Private Hospital and Medical Clinics Regulations which imposes on the hospital a duty of maintaining proper medical records. Gleneagles argues in its written submissions that this claim was never pleaded. I agree with Mr Li that this claim was pleaded in paragraph 62 and 64(a) of the statement of claim (amendment no 5). For example, paragraph 62 provided as follows:

[21] Mr Li claims aggravated damages of $200,000 or more. To claim aggravated damages, the plaintiff needs to show that there is contumelious or exceptional conduct or motive on the part of the defendant and that the plaintiff suffered an intangible loss, injury to personality or mental distress as the case may be (see Tan Harry v Teo Chee Yeow Aloysius [2004] 1 SLR(R) 513 at [82]). Generally, in actions in tort, where damages are at large, aggravated damages may be awarded (see Andrew Tettenborn, The Law of Damages (London: LexisNexis UK, 2010 at [2.22]).

[22] I accept Mr Li’s argument that Gleneagles’ act of giving him the consent form without informing him that it had been altered as well as failing to reveal the truth to him all the way up to the point in time of the entering of the interlocutory judgment is an exceptional act which justifies the granting of aggravated damages. Although Mr Li also relied on Gleneagles’ conduct in the assessment of damages subsequent to the entering of the consent interlocutory judgment, there is nothing to this. After Gleneagles admitted liability, I found that there was nothing aggravating in its conduct in the assessment of damages proceedings before me. Gleneagles through its representatives simply maintained that it did not reveal the truth to Mr Li because the matter had been referred to the legal department which then dictated the actions and the position the hospital had to take. The cross-examination of Mr Li was also hardly as relentless as counsel for Mr Li had suggested. A perusal of the transcript will show this. Therefore, the basis of my granting of aggravated damages lies on the acts which precede the entering of the interlocutory judgment.

[23] As for Mr Li’s mental distress and anguish, it may be summarised in the following way. Mr Li’s appreciation of Singapore’s reputation was such that he had taken the propriety and transparency of one of Singapore’s premier private hospitals as a given. He had expected the same high standards of its doctors. After he had undergone the botched surgery and had suspected that the consent form was altered, he had expected the hospital to come clean with the truth. Instead, the hospital handed him an altered consent form without telling him that it had been altered. The hospital continued to hide the truth from Mr Li for the years following the operation up to the bringing of the action. Even after the action was brought, the hospital still did not reveal the truth and in fact resisted Mr Li’s attempts to uncover the truth by resisting Mr Li’s application for interrogatories to be served on Ms Chew. In this entire process, Mr Li had tried to confide in his friends who instead laughed at him and exclaimed that such a cover-up was not possible in Singapore. The entire episode made Mr Li become more withdrawn. He could not believe that this was happening to him. He started to distrust doctors and hospitals. He persisted in bringing the action because he wanted the truth to be uncovered. He also wanted the hospital to be accountable and to prevent this from happening to another person.

[25] Whether Mr Li will donate the damages he recovers to charity or not is irrelevant to me in the making of my decision. But his statements and the sincerity of his testimony in totality convinced me that he had truly suffered great mental anguish and distress and for a protracted period of time from June 2007 to the time when the consent interlocutory judgment was entered. That is approximately 4 years. It is important to note that despite the differences in the views of the expert witnesses hired by the parties as to Mr Li’s mental state, both doctors agreed that Mr Li had a form of reactive depression.

[26] I award Mr Li $240,000 in aggravated damages for his mental distress. It is difficult to compare Mr Li’s case with the plethora of defamation cases referred to by counsel in which aggravated damages were granted. Instead, I found the case of Kay Swee Pin v Singapore Island Country Club [2008] SGHC 143 (“Kay Swee Pin”) more appropriate for comparison. In that case, the plaintiff was wrongfully suspended as member of the Singapore Island Country Club for one year on the ground that she had falsely declared one Mr Ng Yong Yeam as her husband and so afforded him the privilege of using club facilities even before 2005 when they did not have a marriage certificate. The notice of her suspension was posted all over the club premises for the full year. She was eventually vindicated in court and was awarded $40,000 for the mental distress suffered for the events leading up to and including the one year in which her membership at the Singapore Island Country Club was wrongfully suspended. Although she was awarded $40,000 as damages for mental distress and not aggravated damages per se, I found the sense of injustice visited upon her and the consequent mental distress to be, while not perfectly commensurate with that experienced by Mr Li, at least within the same spectrum of comparison and certainly a better yardstick than the defamation cases referred to by counsel. As I had stated, as compared to the plaintiff in Kay Swee Pin, Mr Li had suffered even greater anguish and for a more protracted period from 2007 until the interlocutory judgment was entered in September 2011. Furthermore, unlike in Kay Swee Pin where there was not enough evidence of the plaintiff’s mental distress, I found it abundant in the present case (and I have summarised the account given by Mr Li which I had accepted above at [23]-[25]).

[27] In the circumstances, I award Mr Li $240,000 for aggravated damages which works out to approximately $60,000 per year in which he had to bear the anguish of trying to uncover the truth. Of course, the complexion and the intensity of his mental distress and anguish will vary within that time period but the damages for the totality of his mental distress and anguish I found it appropriate to quantify at $240,000.

[28] Mr Li seeks punitive damages of $500,000. Mr Li relies on the decision of the House of Lords in Rookes v Barnard [1964] AC 1129 (“Rookes”) which laid out the three categories of cases for which punitive damages may be granted: first, oppressive, arbitrary or unconstitutional action by servants of the government; second, wrongful conduct which has been calculated by the defendant to make a profit for himself which may exceed the compensation payable to the plaintiff; and where punitive awards are expressly authorised by statute. Counsel for Mr Li pointed out that Prakash J in Afro-Asia Shipping Company (Pte) Ltd v Da Zhong Investment Pte Ltd [2004] 2 SLR(R) 117 opined that Rookes is good law in Singapore. However, counsel also conceded that the Court of Appeal more recently has left open the position on punitive damages in MFM Restaurants Pte Ltd and another v Fish & Co Restaurants Pte Ltd and another appeal [2011] 1 SLR 150 (“MFM Restaurants”).

[29] In MFM Restaurants, the Court of Appeal repeated (at [53]) the following observations of the High Court in CHS CPO GmbH v Vikas Goel [2005] 3 SLR(R) 202 (“Vikas Goel”):

[30] The Court of Appeal in MFM Restaurants left open the position on punitive damages because no arguments were made in the appeal on punitive damages (see MFM Restaurants at [52]). Likewise, the High Court in Vikas Goel did not make a determination on the issue because it was not before the court.

[31] In this case, not only were arguments made on punitive damages, Mr Li is expressly making a claim for such damages. Although the law on punitive damages is in a state of flux and while the position is more suitable to be determined by the superior courts, as the superior courts have not had the occasion to make a pronouncement on the position and as it is in issue before me, it falls to this court to determine the applicable position in the ebb and flow of the law to dispose of this claim.

[32] The issues of whether punitive damages should even be recognised and the applicable guiding principles on the scope of its application and the extent of the damages to be awarded rest on policy considerations. A perusal of the arguments for and against punitive damages in the decisions of the House of Lords in the aforementioned cases (referred to in the passage above at [29]) and the English Law Commission's Report on Aggravated, Exemplary and Restitutionary Damages make it clear that the position is not one which may be determined by the ascertainment of rules already laid down as if there exists a firm position which simply needed to be uncovered through a reading of the cases or the synthesis of existing rules. It is a policy decision in the sense that the court needs to choose between competing rationales, in particular, whether damages should be compensatory or whether it could serve other functions.

[33] In the present case, although it falls on this court to determine the position on punitive damages, because of the way in which Mr Li had argued his claim for such damages, this court need only decide the position in a limited sense, namely, whether to accept an expanded version of Rookes. Mr Li’s argument is as follows. Mr Li relies on the first and second categories in Rookes. With regard to the first category, Mr Li has argued that that category was widened in Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 (“Kuddus”) by Lord Nicholls who expressed the following view at [66]:

In this passage, Lord Nicholls expresses his support for an extension of the first category in Rookes.

[34] As for the second category in Rookes, Mr Li says that Gleneagles’ actions were calculated to maintain their good reputation and the profitable business relationship with Dr Looi. While this may well be the general motivation of Gleneagles for its actions, I do not see how it fits within the second category in Rookes which requires, in a sense, a cynical calculation by the defendant that in perpetuating a wrong, it would still come out the better because the consequences of that wrong would be outweighed by the benefits it would bring. Mr Li’s argument would require an extension of the position in Rookes. I note that in Kuddus, Lord Nicholls had opined (at [67]) that for the second category, it should be extended to malicious motives and not simply motives calculated to profit the defendant.

[35] To allow the claim for punitive damages, I would have to accept Mr Li’s argument on the expansion of the categories in Rookes. I am reluctant to do so. The reason for my reluctance to accept Mr Li’s contention for an expanded reading of Rookes is as follows. The determination of the position on punitive damages has important rule of law implications. All power has legal limits (see the legality principle enunciated by the Court of Appeal in Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [15]). Although the legality principle was pronounced with the legislative and executive power in mind, it applies to the judicial power which is also bounded by law. For example, the avenue of the exercise of judicial power restricts the use of that power. A court may only exercise the judicial power where it is seized of jurisdiction and the nature of the power which may be exercised varies depending on the type of jurisdiction. Apart from the avenue of the exercise of judicial power, the nature of the power is likewise restrained by written law.

[36] The recognition of punitive damages, the determination of its scope and the extent of the quantum which may be awarded have rule of law implications. The recognition of punitive damages affords the court an expansive mode of imposing liability without reference to a particular loss suffered by the innocent party or profit made by the wrongdoer (save perhaps for the cases which fall in the second category of Rookes or for which the principles in Attorney General v Blake (Jonathan Cape Ltd Third Party) [2001] 1 AC 268 apply so that the quantification of damages may be made with reference to the outstanding benefit retained by the wrongdoer). This point of reference which furnishes a key legal restraint on the exercise of judicial power in deciding liability in civil cases is absent where punitive damages are concerned. While one may instinctively point to proportionality as a form of legal restraint in the sense that the award of punitive damages has to be proportionate to the reference act of wrongdoing, this is very much an elastic limitation as it depends on the characterisation of the egregiousness of the reference act and proportionality furnishes no guidance on such characterisation.

[37] It is this inherent lack of legal restraint in the award of punitive damages that creates the tension with the rule of law. Of course, this tension may well be diffused by crafting a narrow scope for the award of such damages (as is arguably the case in Rookes with its limited three categories) or by Parliament creating a legislative limit on the quantum which may be awarded for punitive damages, as has been done in certain jurisdictions.

[38] Furthermore, while punitive damages may seem to be handy as a remedy to right certain wrongs, it is to be remembered that apart from punitive damages and other civil remedies, there could be other legal responses found beyond the civil law. When viewed through the lenses of a civil suit, certain wrongs may seem to go without remedy if the suite of civil remedies is inadequate and so there is some attractiveness to punitive damages as a sort of residual civil remedy for egregious wrongs, but when one considers the entire system of law, not just civil law, there could be other modes of dealing with such wrongs which would put in perspective (and thus diminish) the attractiveness of punitive damages, especially given its tensions with the rule of law.

[39] I am reluctant for the foregoing reasons to accept the expanded version of Rookes argued for by Mr Li. I am therefore rejecting Mr Li’s claim for punitive damages based on this expanded version of Rookes. There is no need for me to go beyond what I need to consider by examining whether the position in Rookes itself represents the entirety of the position on punitive damages in Singapore. I have no doubt this issue will be taken up another day in a more appropriate case.

[40] I award the plaintiff $10,000 in compensatory damages and $240,000 in aggravated damages.