Li Siu Lun v Looi Kok Poh and another

1. Belinda Ang Saw Ean J:

2. Introduction

3. [1]

   [1] The plaintiff, Mr Li Siu Lun (“Mr Li”), is a British citizen who resides in Hong Kong. He is self-employed and trades in property and stocks. The second defendant, Gleneagles Hospital (“Gleneagles”), is a well-known private hospital in Singapore and is owned by Parkway Hospitals Singapore Pte Ltd.

4. [2]

   [2] Sometime in April 2006, Mr Li consulted the first defendant, Dr Looi Kok Poh (“Dr Looi”), at his clinic in the Gleneagles Medical Centre in relation to stiffness in his right hand and wrist. Dr Looi performed surgery on Mr Li’s right hand and wrist on 26 April 2006. Unfortunately, the surgery was unsuccessful. Mr Li subsequently sued Dr Looi and Gleneagles for the botched surgery on 16 March 2009.

5. [4]

   [4] Gleneagles, on the other hand, continued to resist Mr Li’s action until the third day fixed for the trial. By then, Mr Li’s pleaded case against Gleneagles consisted of various causes of action which included the tort of conspiracy to injure by unlawful means. The conspiracy claim against Gleneagles concerned an addition of a second procedure made to Mr Li’s consent form post-surgery by a nurse in the employ of the hospital. On 14 September 2011, with the consent of Gleneagles, interlocutory judgment with damages to be assessed was entered in favour of Mr Li in respect of all causes of action brought against the hospital (“the 2011 Consent Judgment”).

6. [5]

   [5] Mr Li elected to have his damages assessed for conspiracy to injure by unlawful means. The assessment of damages hearing before the Assistant Registrar (“the AR”) took four days from 25 to 30 September 2013. Mr Li does not speak English and gave his testimony in Cantonese with the aid of an interpreter in the assessment hearing.

7. [6]

   [6] The AR awarded $250,000 as damages for unlawful means conspiracy. He awarded compensatory damages in the sum of $10,000 for the time and effort spent by Mr Li in pursuing his claim against Gleneagles. The bulk of the award in the sum of $240,000 was for aggravated damages for distress.

8. [8]

   [8] At this juncture, I hasten to add that the quantification of Mr Li’s pecuniary loss was not so straightforward. One area of concern was how Mr Li’s pecuniary loss was to be measured or quantified. Another area of concern, amongst others, was whether Mr Li should only get nominal damages, having not led any evidence as to the amount of the fact of damage in relation to his cause of action in conspiracy by unlawful means for which liability was established by virtue of the 2011 Consent Judgment. In addition, I note that the AR awarded $240,000 as aggravated damages for distress, treating it as a free-standing and distinct head of loss. This judgment will determine some issues of principle in relation to the claim for aggravated damages for conspiracy. They are:

9. (a) Whether aggravated damages are recoverable in the tort of conspiracy by unlawful means;

10. (b) Whether it is permissible in law to award aggravated damages for distress as a free-standing head of loss, or is such compensation simply given to augment general damages awarded under other heads of claim; and

11. (c) Whether the principle of proportionality ought to apply in assessing an award of aggravated damages for distress.

12. [9]

    [9] As many of these issues of principle were not well-ventilated in the parties’ submissions, I directed the parties to submit on, inter alia, the above issues on 9 January 2015. The parties submitted their responses on 16 January 2015.

13. [10]

    [10] I should also at the outset point out that the parties cited numerous authorities and raised a number of subsidiary points in their submissions. I have not found it necessary to refer to all of them in this judgment.

14. Background facts

15. [11]

    [11] I need only summarise the relevant background facts which are as follows.

16. [12]

    [12] As stated, Mr Li was a patient of Dr Looi. The surgery took place on 26 April 2006 at Gleneagles. Unfortunately, Mr Li’s condition worsened after surgery. He was unable to stretch out or straighten his little finger. During further consultations with Dr Looi and other doctors, who were consulted for a second opinion, Mr Li suspected that Dr Looi might have botched up the surgery since it had gravely affected the functioning of his right hand. This spurred Mr Li to obtain a copy of his operation report, which was released to him by Gleneagles on 11 August 2006. A few days later on 25 August 2006, Mr Li requested a copy of his operation consent form. Gleneagles’ staff then sought Dr Looi’s permission (an administrative step that was required under the hospital’s procedure) before the release of a copy of Mr Li’s operation consent form to him. However, Dr Looi did not give his permission and Mr Li left the hospital empty-handed. I will now elaborate on the operation consent form that was central to the current proceedings.

17. [13]

    [13] Prior to the surgery, Mr Li had signed a document entitled “Consent for Operation or Procedure form” (“the Consent Form”) that was completed by Ms Chew Soo San (“Nurse Chew”), a senior staff nurse of Gleneagles. At that stage, Mr Li’s express consent given prior to surgery related only to a single procedure to treat “Tenolysis of the right hand”. Mr Li’s complaint against Dr Looi and Gleneagles was that no prior consent was given for the other procedure that was performed on him, namely, “Ulnar Neurolysis and Repair” (“the second procedure”).

18. [14]

    [14] It subsequently transpired that Nurse Chew had, at the request of Dr Looi, added the second procedure to the Consent Form post-surgery. Between July and August 2006, Dr Looi contacted Nurse Chew to get her to make the addition to the Consent Form. Even though she was initially reluctant to do what Dr Looi had wanted, Nurse Chew allegedly relented after Dr Looi gave his assurance that he had carried out the second procedure and that he had also explained the second procedure to Mr Li. Nurse Chew then wrote the words “and Ulnar Neurolysis and Repair” (ie, the second procedure) on the Consent Form using a pen with the same ink colour.

19. [15]

    [15] On 28 August 2006, Dr Looi gave his permission to Gleneagles to release a copy of the Consent Form to Mr Li. Gleneagles then contacted Mr Li twice between August 2006 and May 2007 to collect his copy of the Consent Form. Eventually, Mr Li collected his copy of the Consent Form on 8 May 2007. Mr Li also sighted the original Consent Form on 8 August 2007.

20. [16]

    [16] Mr Li was certain that he had not consented to the second procedure. He suspected that the words “and Ulnar Neurolysis and Repair” had been added to the Consent Form. Around July or August 2007, Mr Li alerted Gleneagles that the Consent Form could have been tampered with.

21. [17]

    [17] As mentioned, Mr Li sued Dr Looi and Gleneagles on 16 March 2009. In December 2009, Mr Li served Interrogatories on Nurse Chew, and in January 2010, Nurse Chew answered the Interrogatories. She admitted that she amended the Consent Form by adding the words “and Ulnar Neurolysis and Repair” at the request of Dr Looi sometime in July or August 2006.

22. [19]

    [19] In relation to his case against Gleneagles, Mr Li amended his Statement of Claim twice after Nurse Chew answered the Interrogatories. The amendment to the Statement of Claim on 5 February 2010 (ie, Amendment No 2) elaborated on the claim for breach of contract by Gleneagles in failing, amongst other things, to furnish Mr Li with an accurate set of medical records documenting his consent, allowing the alteration/amendment of his medical records without his knowledge and consent, and failing to inform him of the amendment/alteration. The next amendment to the Statement of Claim (ie, Amendment No 3) was filed on 26 July 2010. Mr Li introduced two additional causes of action: (a) breach of statutory duty to keep and maintain proper and accurate medical records, and (b) conspiracy to injure Mr Li by unlawful means. There were two further amendments to the Statement of Claim. The amendments filed on 18 July 2011 (ie, Amendment No 4) were: (a) to introduce claims in negligence and for breach of fiduciary duty, and (b) to advance Mr Li’s claim for aggravated and punitive damages.

23. Assessment of damages by the AR

24. [21]

    [21] Mr Li made the following claims:

25. (a) Damages comprising the legal costs which Mr Li had incurred in relation to the application for Interrogatories under O 26A of the Rules of Court (Cap 322, R5, Rev Ed 2014) (“the ROC”) filed against Nurse Chew (“the Interrogatories Application”), a non-party in his proceedings against Dr Looi and Gleneagles;

26. (b) Damages for loss of Mr Li’s right to an accurate and proper set of medical records and Gleneagles’ failure to inform him of the unlawful alteration;

27. (c) Aggravated damages for the mental distress, anguish and depression suffered by Mr Li because of the aggravation caused by Gleneagles’ contumelious or reprehensible conduct in the commission of the wrong and its subsequent conduct; and

28. (d) Punitive damages for Gleneagles’ reprehensible conduct.

29. [23]

    [23] To avoid repetition, I will discuss the AR’s reasoning for his decision on quantum when I consider in turn each head of claim. Suffice to say for now, the AR’s Award (ie, heads of claim (a) and (b)) were looked upon as two separate heads of claim because of the way counsel conducted the assessment. In my view, the AR’s heads of claim (a) and (b) (at [21] above) should have been grouped together as a claim for damages in connection with investigating and uncovering the conspiracy including minimising the effect of the conspiracy (see [66] below). I propose to adopt this approach in the appeals.

30. Observations in relation to the 2011 Consent Judgment

31. [24]

    [24] Before moving on to discuss the various heads of claim in the appeals, it is necessary to touch on the effect of the 2011 Consent Judgment on the assessment of damages, in particular, the amount of damages that is recoverable in principle, subject to proof of causation and quantification.

32. [25]

    [25] A convenient starting point is Mr Li’s pleaded case in Statement of Claim (Amendment No 5). The plea there related to Gleneagles’ breach of statutory duty under Regulation 12(1) of the Private Hospitals and Medical Clinics Regulations (Cap 248, Rg 1) enacted under the Private Hospitals and Medical Clinics Act (Cap 248, 1999 Rev Ed) (“the Act”). As for the conspiracy claim, para 61of the Statement of Claim (Amendment No 5) reads:

33. [26]

    [26] Paragraph 62 (e) of the Statement of Claim (Amendment No 5) reads:

34. [27]

    [27] The terms of the 2011 Consent Judgment admitted to the following matters:

35. [28]

    [28] It was also agreed in a signed note relating to the 2011 Consent Judgment that:

36. [29]

    [29] It is necessary to bear in mind the upshot of the 2011 Consent Judgment in light of Mr Li’s election to have his damages assessed for unlawful means conspiracy. First, the addition of the second procedure to the Consent Form post-surgery was in itself unlawful viz, in breach of the Act, without reference to the conspiracy (see [25] above). Second, the matters set out at [27] above were the overt acts committed by the hospital in the conspiracy. Third, the overt acts were executed in combination with Dr Looi to further the ends of Dr Looi, which was to protect the latter’s interests in the medical negligence action at the expense of his patient’s right to seek a redress for the civil wrong. Fourth, the overt acts were the unlawful means pursued to intentionally deceive Mr Li to defeat his claim against Dr Looi in the medical negligence action. Fifth, the fact of damage was conceded. Unlawful means conspiracy is an economic tort that is actionable only on proof of damage (see EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR 860 at [112]; Quinn v Leatham [1901] AC 495 (“Quinn v Leatham”) at 510, Lonrho v Shell (No 2) [1982] AC 173 at 188; Lonrho Plc. And Others v. Fayed And Others (No. 5) [1993] 1 WLR 1489 at 1494 (“Lonrho (No 5)”); and William v Hussey [1959] 103 CLR 30 at 122), and by the 2011 Consent Judgment, Gleneagles conceded to Mr Li’s pleaded case of damage suffered as a result of the conspiracy.

37. [30]

    [30] Gleneagles’ counsel, Mr Lek Siang Pheng (“Mr Lek”), raised in defence the absence of any causal link between the conduct complained of (ie, the overt acts - the addition of the second procedure to the Consent Form post-surgery and the failure to inform Mr Li about the addition) and Mr Li’s loss. He argued that Mr Li would have suffered the same loss anyway because Gleneagles committed the overt acts post-surgery. I disagree with Mr Lek’s argument for the reasons explained above (at [29] above). Besides, his contention is a one-sided consideration of the overt acts taken in isolation without regard to the actual events brought about by the overt acts, as understood and examined in the context of the entire pleaded case of conspiracy. Plainly, the nexus between the damage suffered and the overt acts in pursuance of the combination in question was established by the 2011 Consent Judgment.

38. [31]

    [31] In summary, by the 2011 Consent Judgment, Gleneagles’ liability for the tort of conspiracy by unlawful means was made out in that the 2011 Consent Judgment had the overall effect of establishing and satisfying all the elements that were needed to complete the cause of action in conspiracy by unlawful means. Hence, Mr Li admittedly suffered the form of pecuniary loss particularised in the Statement of Claim (Amendment No 4), leaving the amount of damages that is recoverable in principle subject to proof of causation and quantification to assessment by the court. In this case, the pecuniary loss suffered was broadly argued under the AR’s heads of claim (a) and (b) (at [21] above).

39. [32]

    [32] I digress for a moment to make a side comment. If Gleneagles had followed through with the trial, the outcome of the pleaded case in conspiracy would depend on the evidence and cross-examination, in particular, for supporting the allegation of conspiracy to injure Mr Li at the time the addition of the second procedure was made to the Consent Form. I am referring to Nurse Chew’s answer to Interrogatories in which she said that she made the addition because she was assured by Dr Looi that the prior consent of Mr Li had been obtained. In contrast, her Affidavit of Evidence-in-Chief filed for the assessment of damages hearing omitted mention of Dr Looi’s assurance that the patient’s consent was given. I was informed by counsel for Mr Li, Mr Roderick Martin (“Mr Martin”), that Nurse Chew admitted that she and Dr Looi did not talk about the patient’s consent. The success of the conspiracy claim would have ultimately depended on evidence of an intention to harm Mr Li. Given the 2011 Consent Judgment, all of this is water under the bridge.

40. [33]

    [33] Returning to para 64 of Statement of Claim (Amendment No 5), the loss pleaded as “general and/or special damages” was particularised as follows:

41. [34]

    [34] Mr Li’s claim for aggravated and punitive damages is set out in para 73 of Statement of Claim (Amendment No 5) in the following manner:

42. Mr Li’s successful recovery against Dr Looi

43. Relevant principles on quantification of damages at large in conspiracy

44. [38]

    [38] The problem in the appeal and the cross-appeal is one of quantification of the pecuniary loss. Gleneagles adopted the position that Mr Li had not adduced evidence as to the amount of the damages recoverable and, as such, Mr Li should be awarded nominal damages at the most. The contention is that even though the fact of damage was conceded in the 2011 Consent Judgment, and thus shown, no actual evidence of the amount of the pecuniary loss was given to assist the court to assess damages.

45. [39]

    [39] In this case, the two related issues of principle touching on the question of quantum of damages are as follows:

46. (a) Can substantial damages be awarded despite uncertainty of proof of quantum?

47. (b) Whether it was open to the court to award more than a nominal sum by way of general damages by reasonably inferring evidence of quantum from the existence of the damage since damages are at large in conspiracy?

48. [40]

    [40] The answers to the two questions in the round are as follows. Generally, substantial damages will not be awarded where the plaintiff adduces no evidence to support the amount of his claim, and nominal damages may be awarded instead. Whether a plaintiff has proved the amount of his loss with sufficient certainty is a question of fact. In some cases, recovery is not denied despite uncertainty of proof of loss, and this might happen in cases where damage is the gist of the cause of action. When this essential element of the tort is proved, the plaintiff would have satisfied the court that he has suffered some pecuniary loss and would be entitled to more than nominal damages. In such cases, it would be reasonable for the court to infer evidence of quantum from the existence of the damage and take into consideration all the circumstances of the case to award a sum as damages. It is important to note that Gleneagles conceded by virtue of the 2011 Consent Judgment to the fact of damage and the amount of the damages will have to be assessed by the court based on whatever the facts permit.

49. [41]

    [41] I will now elaborate on the answers outlined at [40] above. In an assessment of damages, the plaintiff would typically propose an appropriate measure of damages to adopt as a yardstick to arrive at a monetary figure to award as damages. This approach enables damages to be assessed with a reasonable degree of certainty alongside principles such as remoteness and the duty to mitigate. But the fact that damages cannot be assessed with certainty because of the nature of the damage and the circumstances giving rise to the damage, does not mean that the wrongdoer is relieved from paying damages. As highlighted by the Court of Appeal in Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd [2008] 2 SLR(R) 623 (“Robertson Quay”) at [30] (citing Biggin v Permanite [1951] 1 KB 422 at 438) “the court [will] do the best it can” on the evidence available. Experience Hendrix LLC v Times Newspapers Ltd [2010] EWHC 1986 (Ch) (“Experience Hendrix LLC”) is a good illustration of the court’s resolve to “do the best it can” to assess damages. In that case, a newspaper publisher infringed the rights of two United States companies in the performance and recording of a London concert by the Jimi Hendrix Experience in 1969, by giving away to purchasers of its newspapers free CDs containing songs from that concert. The plaintiff claimed damages on the basis that the infringement had delayed the launch of their own project relating to a film of that concert by one year. Though the judge found it exacting to forecast the loss, he expressed the view (at [204]) that the great uncertainty should not mean that the judge should award no damages on the basis that the plaintiff suffered no loss. The judge therefore sought out a basis upon which he could “anchor” the assessment of damages (at [205]-[206]) and decided to refer to a distribution agreement with another company and a rival offer made for some of the performance rights.

50. [42]

    [42] All said, I note that the observations in Robertson Quay at [27] and [32] were not, strictly speaking, made in the context of analysing causes of action where damages were at large. In this case, Mr Li had elected to have his damages assessed for conspiracy to injure by unlawful means, and it is settled law that damages are at large for the tort of conspiracy.

51. [43]

    [43] As stated earlier (at [29]), the tort of conspiracy by unlawful means requires proof of pecuniary damage for the tort to be actionable. A plaintiff who shows that some pecuniary loss has been suffered by him (without the need to precisely prove that loss) ought to be able to rely on the existence of the damage (ie, pecuniary loss) to provide by inference evidence of quantum. Andrew Burrows in Remedies for Torts and Breach of Contract (Oxford University Press, 3rd Ed, 2004) helpfully amplifies the application of the proof of loss principle in the context of a cause of action in injurious falsehood with his illustration and explanation at p 62 that “proof of general loss of business is sufficient and the plaintiff is not required to prove the loss of any particular customer or contract”. The same sentiments have been expressed by the other courts in cases like R+V Versicherung AG v Risk Insurance and Reinsurance Solutions SA & Others [2006] EWHC 42 (“R+V Versicherung AG”) where Gloster J said in a striking out application at [60]:

52. [44]

    [44] It is convenient at this juncture to draw attention to the distinction between proof of damage and proof of quantum. I have thus far discussed damages at large in the context of proof of damage. The principle of damages at large also extends to proof of quantum. In short, the principle of damages at large is applicable across proof of damage to establish the gist of the action and proof of quantum in assessing damages for the tort of conspiracy.

53. [45]

    [45] I now refer to some cases from common law jurisdictions where the principle of damages at large was invoked in the context of proof of quantum. I begin with a local case. GP Selvam J in Dootson Investment Corporation & Anor v Highway Video Pte Ltd [1997] 3 SLR(R) 823 (“Dootson”) held that the principle of damages at large (in a tort where it is applicable) would extend to the assessment of damages. Quoting the authors of an earlier edition of McGregor on Damages (see [48] below), Selvam J said (at [7]):

54. [46]

    [46] Damages at large were also assessed in relation to the tort of conspiracy in the decision of the English High Court in Noble Resources SA v Gross [2009] EWHC 1435 (Comm). In that case, the employees of the plaintiff engaged in a conspiracy to hide certain losses arising from the speculative trading of aluminium futures from the plaintiff. In assessing the quantum of damages claimable, the court held (at [223]):

55. [47]

    [47] Finally, the British Columbia Supreme Court in Howard v Madill [2010] BCJ No 698, noted at [89], inter alia, that assessing damages at large “are a matter of discretion for the trial judge and are more a ‘matter of impression and not addition’.”

56. [48]

    [48] It is clear that the quotations from the three cases are a variant of the statement of principle that in the context of quantification of damages, the court can still award damages even when there is no appropriate measure of damages. As McGregor on Damages (Harvey McGregor eds) (Sweet & Maxwell, 19th Ed, 2015) (“McGregor on Damages”) at para 10-008 stated, damages are at large “when the judge cannot point out to any measure by which they are to be assessed, except the opinion and judgment of a ‘reasonable man’” (hereafter referred to in this Judgment as the “yardstick of the reasonable man”). I will elaborate on this later. It is sufficient to note for now that this yardstick is used to assist the court in deriving the quantum of damages to award.

57. [49]

    [49] Further, besides the yardstick of the reasonable man, the court may equally rely (either separately or in combination) on evidence of proof of damage as evidence to support its quantification of losses. The analysis in McGregor on Damages at para 10-002 supports the proposition that the presence of evidence of damage could provide adequate data for calculating its amount. The same point is made in cases like Quinn v Leathem and Lonrho (No 5).

58. [50]

    [50] Quinn v Leathem showed that the plaintiff must prove damage, as economic torts are actionable only on proof of actual pecuniary loss. Lonrho (No 5) highlights that once some pecuniary loss for maintaining the action in conspiracy is established, damages at large are referable to the act causing the pecuniary loss which constitutes the tort (at 1505). The court in assessing the amount of damages in such a context is not constrained by a precise calculation of the amount of the actual pecuniary loss actually proved or inferred and may take into consideration all the circumstances of the wrong to award a sum. To illustrate, in Quinn v Leathem, a case on conspiracy, the following passage from the trial judge’s notes of evidence said (at 498):

59. [51]

    [51] I now come to the yardstick of the reasonable man as espoused in Dootson and McGregor on Damages for a tort where damages are at large and damage forms the gist of the cause of action. In such cases, the yardstick of a reasonable man assists in deriving the quantum of damages. Let me elaborate.

60. [52]

    [52] Let us first take the case where the court is satisfied that the plaintiff has suffered some damage but cannot point to any measure at all by which the damages are to be assessed because there is no known or practicable method of quantifying the loss. The “reasonable man” (personified by the court) steps in to analyse all the circumstances of the case in order to work out a quantum of damages that is reasonable. The rationale for invoking the yardstick of the reasonable man is because once liability is established for an action where damages form the gist of the cause of action, the court is satisfied that some pecuniary loss has been suffered by the plaintiff and it would be unsatisfactory to award only nominal damages, which is only awarded when the court finds that there is no pecuniary loss occasioned by the plaintiff despite an infringement of his legal rights.

61. [53]

    [53] A fortiori even when a court is able to find a clear measure to assess the damages, the “reasonable man” still has a role in quantification in cases where the evidence to ascertain the quantum of damages is limited, absent or can only be derived and/or inferred from the fact of damage that was established to complete the cause of action (ie establish liability). This proposition is undergirded by the same rationale viz, the court is satisfied that the plaintiff has suffered some pecuniary loss and finds it unsatisfactory to award nominal damages. In such situations, the “reasonable man” would not demand that the plaintiff give precise figures to prove quantum; instead, the assessment would be based on what is considered a sum which is reasonable having regard to all the circumstances of the case. Naturally, where the evidence is limited or can only be derived from an analysis of the facts or inferred from the proof of the fact of damage, the court can (and will) only award a modest sum as damages because it cannot possibly be reasonable for an award of substantial damages to be made in the absence of proper evidence to support the assessment.

62. [54]

    [54] It is important to note that Gleneagles conceded to the fact of damage by virtue of the 2011 Consent Judgment, and the amount of the damages will have to be assessed by the court based on whatever the facts permit as an award. I am mindful that Mr Li was not required by the signed note (at [28] above) to prove the fact of damage at the assessment of damages hearing.

63. [55]

    [55] As stated, the court has recourse to the yardstick of the reasonable man where a measure of damages cannot be identified. However, I note that this question does not strictly arise in the present case as there are measures by which the loss occasioned by Mr Li may be based upon.

64. [57]

    [57] I note that expenses incurred in investigations have been recognised as an appropriate measure of damages upon which the court may ground its assessment in the tort of conspiracy. Therefore, expenses resulting from the tort of conspiracy including investigatory expenses are, in principle, recoverable as a pecuniary loss in the tort of conspiracy. Clerk and Lindsell on Torts (Michael A Jones gen ed) (Sweet & Maxwell, 21st Ed, 2014) at para 24-114 citing British Motor Trade Association v Salvadori [1949] Ch 556 (“British Motor Trade Association”) offers the following view:

65. [58]

    [58] The English court of Appeal in Lonrho (No 5) also approved British Motor Trade Association where Dillon LJ at 1497 accepted that time spent detecting, investigating, countering and minimising the effect of a conspiracy was recoverable in principle in the following manner:

66. [59]

    [59] In a similar vein, Gloster J in R+V Versicherung AG, a case concerning a conspiracy relating to reinsurance, explained at [65] that by allowing the claim for staff time spent in investigating and minimising the effect of the conspiracy to be maintained in the pleadings, the appellate court in Lonrho (No 5) was approving in principle the correctness of the proposition that damage could be shown in such circumstances. And at [77], Gloster J restated that the expenses relating to managerial and staff time spent in investigating the conspiracy and handling claims that were directly attributable to the conspiracy were recoverable without the need to show any specific loss of profit.

67. [60]

    [60] To summarise, where evidence as to the amount of the pecuniary loss is missing or inadequate, compensatory damages may still be awarded for the general pecuniary loss occasioned especially in a case where damage as a constituent of the cause of action had been established. In my view, any evidential uncertainty in computing losses does not mean that the court must not award damages on the basis that the plaintiff had not proved the quantum of damages. This would be an unsatisfactory outcome especially in a case where damage as a constituent of the cause of action had been established. Any court called upon to consider what damages are recoverable in conspiracy would have to do its best in assessing damages from inferring evidence of quantum from the existence of the damage. This exercise, as noted above, is conducted with reference to the yardstick of the reasonable man.

68. [61]

    [61] Indeed, as damages are at large, the court adopts the yardstick of the reasonable man taking into consideration all the circumstances of the case including the conduct of the parties to arrive at a quantum of general damages based on the measure of damages it has selected. From this perspective, the court is using its common sense to achieve justice, not only to the plaintiff but the defendant, and if applicable, among the defendants (per Stuart-Smith LJ in Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 at [20]).

69. [62]

    [62] As to what guides the court when adopting the yardstick of the reasonable man to arrive at a monetary figure as general damages for conspiracy, Brooking J in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636 at 645 (citing FitzGibbon LJ directions to the jury which were approved by the House of Lords in Quinn v Leatham at 498) said that the court would “take all the circumstances of the case including the conduct of the defendant, reasonably into account.” (See also JN Dairies Limited v Johal Dairies Limited [2010] EWHC 1689 (Ch) at [21].)

70. [63]

    [63] Other factors to consider (and this is by no means exhaustive) in this case are as follows: (a) credit must be given for benefits received from the settlement with Dr Looi; and (b) the court must take care not to include sums for consequences which may be due to Mr Li’s own unreasonable actions. In the final analysis, the court must adopt a balanced approach that provides Mr Li with compensation and redress, and at the same time, the court must make sure that this amount does not turn into an unfair windfall.

71. [64]

    [64] With these principles set out above in mind, I now turn to the appeals proper.

72. The general approach to the assessment of damages in the appeal and the cross-appeal

73. [65]

    [65] Both sides were unhappy with the amounts of damages awarded by the AR. Mr Li and/or Gleneagles have appealed/cross-appealed every aspect of the AR’s decision (noted at [22] above).

74. The evidence of investigation to uncover the conspiracy

75. [67]

    [67] With the approach outlined above in mind, I go next to the overall evidence that is necessary for the assessment of damages under heads of claim (a) and (b) at [21] above.

76. [68]

    [68] As mentioned, Mr Li commenced his action against Dr Looi and Gleneagles on 16 March 2009. Before that, Mr Li had to obtain a copy of his operation report which was released to him by Gleneagles on 11 August 2006. A few days later on 25 August 2006, Mr Li requested a copy of the Consent Form. At that stage, Dr Looi did not give his permission and Mr Li’s request that he be given a copy of the Consent Form was refused. It was after Nurse Chew made the addition of the second procedure to the Consent Form post-surgery that Dr Looi gave his permission to Gleneagles to provide Mr Li with a copy of the Consent Form. This was on 28 August 2006. Mr Li collected his copy of the Consent Form on 8 May 2007. Mr Li also sighted the original Consent Form on 8 August 2007.

77. [69]

    [69] It is common ground that Mr Li went to Gleneagles to get copies of his medical records including the Consent Form. It was Mr Li who alerted Gleneagles about the tampering after he was given a copy of the Consent Form.

78. [70]

    [70] Gleneagles then launched an internal investigation in relation to the addition of the second procedure made to the Consent Form. By 27 August 2007, Gleneagles learnt that Dr Looi had taken the Consent Form to Nurse Chew to amend. Gleneagles’ Senior Manager, Mrs Ruth Quek wrote in her e-mail of 27 August 2007 as follows:

79. [71]

    [71] On 13 September 2007, Mr Li wrote to inquire about the outcome of the investigation into “the nurse who added …on [the Consent Form]”. Instead of notifying him of the outcome of the investigation, Mr Li was shunted to another department: Safety and Risk Management Unit.

80. [72]

    [72] Gleneagles eventually wrote to Mr Li on 26 October 2007. It said:

81. [73]

    [73] As can be seen, Gleneagles did not directly answer Mr Li’s request that he be given the name of the nurse who added the second procedure on the Consent Form post-surgery. Mr Lek confirmed that the hospital knew of the name of the nurse who made the addition in October 2007. Yet, the hospital chose not to reveal that its employee was involved in the addition of the second procedure to the Consent Form even after Mr Li commenced litigation. Mr Li was left in the dark as to who actually amended the Consent Form. He did not know if the amendment was done by an employee of the hospital or by Dr Looi’s clinic nurse.

82. [74]

    [74] Notwithstanding Mr Lek’s confirmation that Gleneagles knew that it was Nurse Chew who had amended the Consent Form, Gleneagles pleaded defence did not reveal who had amended the Consent Form. The defence pleaded that Mr Li had signed the Consent Form to undergo the operation/procedure of “Tenolysis Right Wrist” prior to the operation and that the second procedure was added to the Consent Form which impliedly meant that the addition of the words “ulnar neurolysis and repair” (ie, the second procedure) was after the operation; the Defence was silent as to the identity of the person who amended the Consent Form.

83. [75]

    [75] In its Defence, Gleneagles pleaded that “[Mr Li’s] consent to the Tenolysis Right Wrist and Ulnar Neurolysis and Repair procedures had been obtained in accordance with the protocols/in-house rules established by [Gleneagles]”. As regards the specific averment in the hospital’s Defence that Mr Li’s consent to both surgeries was obtained in accordance with the hospital’s protocols, Mr Martin pointed out that this averment was intended to convey the impression that the consent was obtained prior to the operation. This was because the protocols only permitted amendments to an operation consent form before surgery and when the amendment was countersigned by the patient. Such an averment obfuscates matters as other paragraphs in the Defence read together seemed to infer that the second procedure was added to the Consent Form post-surgery.

84. [76]

    [76] Mr Martin drew my attention to Dr Looi’s position taken prior to the withdrawal of his Defence and at the hearing of an interlocutory application for: (a) Further and Better Particulars and (b) leave to administer Interrogatories. At that hearing, Dr Looi’s counsel denied that the Consent Form was amended. The same denial was echoed by counsel for Gleneagles despite its pleaded case to the contrary. To elaborate, the Notes of Arguments of the hearing for both Further and Better Particulars and leave to administer Interrogatories on 18 December 2009 recorded counsel for Gleneagles as follows:

85. [77]

    [77] Mr Martin submitted, and rightly so, that both defendants “closed ranks there”. In relation to the pleadings between Mr Li and Dr Looi, the latter’s pleaded case was that the two procedures were done with the consent of Mr Li. Presumably the addition of the second procedure to the Consent Form was to make explicit what Dr Looi said in his pleadings which was that Mr Li had given implied consent to the second procedure.

86. [78]

    [78] As for the reference to “Notice to Admit Facts” in the Notes of Argument, I should explain that Mr Li served a Notice to Admit Facts (under O27 r 2 of the ROC) which sought an admission that there was an alteration to the Consent Form and that it was done by Nurse Chew. From the Notes of Arguments, Gleneagles had not only strenuously objected to Mr Li’s applications for Further and Better Particulars, it vigorously objected to Mr Li’s application to serve Interrogatories on Nurse Chew.

87. [79]

    [79] The tort of conspiracy by unlawful means was introduced as a cause of action after Nurse Chew answered the Interrogatories in January 2010. Mr Li also introduced the cause of action of breach of statutory duty to keep and maintain proper and accurate medical records (see [19] above).

88. Compensatory damages constituted by the time and money expended in investigating and uncovering the conspiracy

89. Before action commenced

90. [80]

    [80] On the evidence, Mr Li had expended time and effort to uncover the conspiracy, and this was clearly the case before commencing the action in March 2009. It is also clear that the specific Interrogatories Application against Nurse Chew who was not a party to the action against Dr Looi and Gleneagles (like Mr Li’s expenditure of time and effort to uncover the conspiracy before litigation) was a natural and probable consequence of Gleneagles’ wrong. Indeed, both matters may be characterised as the time and expenses expended in investigating and uncovering the conspiracy. In the context of Mr Li’s pecuniary loss, Mr Martin stated in written submissions:

91. [83]

    [83] Mr Martin submitted generally that the award of $10,000 by the AR for the time, effort, inconvenience and additional expense incurred was paltry and “completely out of sync with the evidence of what [Mr Li] had to go through because of [Gleneagles] and was therefore manifestly inadequate.” Mr Lek, on the other hand, argued that the AR’s award of $10,000 was objectionable in principle because every plaintiff in legal proceedings would expend “time and effort and inconvenience” in pursuing the claim against his opponent. Mr Lek further argued that no evidence was adduced as to the amount of time Mr Li had expended in uncovering the truth. He made the same point as regards the claim of $25,000 as damages. He concluded that no damages should be awarded in the absence of evidence of quantum. However, if the court was minded to give Mr Li something, then nominal damages should be awarded.

92. [84]

    [84] It is not disputed that Mr Li had not turned his mind to maintaining a record of his time spent and personal expenses. Nevertheless, the court was invited to infer some expenditure of time and money on his part.

93. [85]

    [85] I agree with Mr Lek that it is incumbent on a litigant to adduce evidence of quantum; otherwise, he is at risk of a finding that no evidence is given as to its amount. However, it is not always the case that the court will award nil or nominal damages where actual evidence of quantum from the litigant is missing or insufficient. Oftentimes “the court does the best it can” on whatever evidence that is available before the court. The same resolve must be adopted (as seen from the cases) especially where damage is the gist of the cause of action. Let me elaborate.

94. [86]

    [86] In this case, there is a factual basis (no doubt conceded by virtue of the 2011 Consent Judgment) for some compensation to be awarded and the court is under a duty to assess damages at that point. It would be incorrect to award nil or nominal damages since some harm had been established. Damages, which are at large in the present case, are to compensate Mr Li for the consequences of the conspiracy. In my view, evidence of quantum may be inferred from the existence of the damage to enable the court to assess damages as best as it can.

95. [87]

    [87] As the evidence set out above fully establishes, Gleneagles was effectively stonewalling Mr Li, and Mr Li has diverted his time to investigate Gleneagles’ wrong before litigation commenced. There was no uncertainty as to the cause of the damages sought for the time and effort made to investigate and uncover the conspiracy. And whilst Mr Li adduced no evidence of his actual expenditure and of the duration of time he actually spent to uncover Gleneagles’ wrong, these matters alone (as stated in [86] above) are not a reason for awarding either nil or nominal damages.

96. [88]

    [88] The AR arrived at the figure of $10,000 based on $2,500 for each year expended by Mr Li from 2007 to the time the 2011 Consent Judgment was entered into to uncover the conspiracy in September 2011. Is the sum of $10,000 a fair compensation bearing in mind the principle that damages in the tort of conspiracy are at large? Would a reasonable man (personified by the court) ascribe compensation at a level that is less than or the same as $10,000 or higher at $20,000 as submitted by Mr Martin?

97. [89]

    [89] I find that the evidence supported four visits to Gleneagles’ office to retrieve, amongst other things, his medical records, and bearing in mind that, at all material times, Mr Li lived in Hong Kong and was self-employed, his attendances at Gleneagles in person on four occasions necessarily involved travelling to and staying over at Singapore. In this way, and looking at the evidence in the context of the overall case, he would have incurred expenditure in time and money in coming to Singapore in an effort to uncover and expose Gleneagles’ wrong.

98. [90]

    [90] It is true that Mr Li did not provide actual figures to assist the court in assessing his time spent including related personal expenses incurred before litigation commenced, but that omission would impinge on the quantum of the amount to be awarded in the sense that whilst an award of substantial damages is not possible, the court must do its best to come up with some kind of value for the time and effort by reference to tangibles such as air fares, accommodation and personal expenses that would have been expended in investigating and uncovering the conspiracy. In these circumstances, the amount of damages would be modest.

99. After commencement of action

100. [94]

     [94] The Interrogatories Application was filed pursuant to O 26A r 1(2) of the ROC. Order 26A r 1 sets out the procedure that a party would have to comply with in order to seek interrogatories against a non-party before and after an action has commenced. Rule 1 states:

101. [95]

     [95] Order 26A r 1(5) stipulates that this sub-rule is to enable the plaintiff to seek information for the purpose of identifying the person who may be liable to him.

102. [97]

     [97] From AR Ng’s relevant Notes of Arguments, Gleneagles had not only strenuously objected to Mr Li’s applications for Further and Better Particulars, it had also vigorously objected to Mr Li’s application to administer Interrogatories on Nurse Chew. Gleneagles was privy to the information that the addition was made by Nurse Chew way back in August 2007. Gleneagles, however, did not disclose Nurse Chew’s involvement as an employee of the hospital to Mr Li who had to administer interrogatories on Nurse Chew to find out the truth.

103. [99]

     [99] I should mention for completeness that after the 2011 Consent Judgment, para 64(b) was further amended vide Statement of Claim (Amendment No 5) before the assessment of damages hearing to provide, inter alia, the figure of $25,000 being the legal fees of Mr Li’s lawyers (see [33] above).

104. [101]

     [101] I agree with Mr Martin that on the evidence, Mr Li was only able to ascertain that the Consent Form was amended by Nurse Chew as a result of her answers to the Interrogatories. As stated earlier, Gleneagles was privy to the information that it was Nurse Chew who had made the addition. Gleneagles, however, did not disclose Nurse Chew’s involvement to Mr Li who had to administer Interrogatories on Nurse Chew to find out the truth. As I see it, Mr Li is entitled to damages on the footing that if Gleneagles had disclosed the truth about Nurse Chew’s involvement in the amendment, he would have been able to prove his case against Dr Looi without the investigations into the conspiracy post action, in particular administering Interrogatories on Nurse Chew.

105. Other consequential losses arising from the amendment to the Consent Form

106. [105]

     [105] Mr Li also claimed damages in relation to his loss of access to accurate medical records and for not having been informed of the unlawful alteration (see [33] above for para 64(a) of Statement of Claim (Amendment No 5). According to Mr Martin, Mr Li is claiming consequential losses arising from the amended Consent Form. The amendment was committed in breach of Gleneagles’ common law duty to keep and maintain proper medical records (see R v Mid Glamorgan Family Health Services [1995] 1 All ER 356 at 365 on the common law right to access and duty to disclose) and statutory duty to inform Mr Li of the alteration of the Consent Form (see Regulation 12 of the Private Hospital and Medical Clinics Regulations (Cap 248, Rg 1)).

107. [107]

     [107] It is now convenient to quote the relevant paragraph of Mr Martin’s submissions that explained the basis of his proposed quantification of $30,000. He wrote (at para 101):

108. [111]

     [111] Above all, I am not persuaded that the amended Consent Form made the case against Dr Looi more complicated. At this point, I need only caution that the court must take care not to include sums as damages for consequences which may be due to Mr Li’s own unreasonable actions (ie, Dr Sammut’s involvement) vis-à-vis Gleneagles. I will elaborate on this at [112] below. Finally, the quantification of damages in respect of the liability for conspiracy is far from straightforward by reason of Dr Looi’s settlement in that “credit” must be given for payments received in settlement. In theory, the settlement amounts paid by Dr Looi could have the consequential effect of extinguishing or reducing Mr Li’s loss by reason of the conspiracy.

109. [112]

     [112] As stated above, the amended Consent Form was plainly intertwined with the claim in battery against Dr Looi - the tampered Consent Form was the necessary circumstance for the battery charge against Dr Looi. The tampered Consent Form was also central to the negligence allegation against Dr Looi from an evidential perspective so as to have a significant impact on his defence. After all, the amended Consent Form would cast doubts as to the accuracy of other entries in medical records. The alteration of the Consent Form would create a prima facie case of negligence and battery.

110. [114]

     [114] Therefore, I agree with the AR (albeit for different reasons) that the claim amount of $30,000 for expenses is unsustainable and is therefore rejected.

111. Observations on recovering legal costs as damages

112. [118]

     [118] The correctness of Mr Martin’s submissions turned on whether the principle in Hammond v Bussey is good law in Singapore. In contrast, Mr Lek urged this court to follow the decision of the High Court in Then Khek Koon and another v Arjun Permanand Samtani and another and other suits [2014] 1 SLR 245 where the court there opined (at [228]) that “the distinction between [a same-party case] and [a third-party case] is too fragile and unprincipled a basis to justify one rule applying in the former and the entirely opposite rule applying in the latter.” That view was recently accepted on appeal by the Court of Appeal in Maryani Sadeli at [48].

113. [120]

     [120] Returning to Maryani v Sadeli, Andrew Phang JA, delivering the judgment of the Court of Appeal, opined at [46] that there was no reason why a third-party case should be treated any differently from a same-party case simply because the plaintiffs could point to another party who was ultimately responsible for the state of affairs which resulted in litigation. Commenting further on Hammond and Ganeson Carlose, Phang JA said at [58]:

114. [123]

     [123] Phang JA then summarised the legal position in Singapore (at [59]):

The judgment continues past this page. Read the rest at eLitigation.