A five-judge Court of Appeal has handed down a landmark decision on Tuesday (26th November), which upheld the High Court’s ruling at 46-year-old pathologist Dr Tan Hong Wui and his medical lab, Quest Laboratories Pte Ltd, were liable in negligence in failing to detect the presence of malignant cancerous cells in Mr Peter Traynor’s skin sample in 2009.
The apex court, however, disagreed with Justice Choo Han Teck’s ruling below that Mr Traynor would only have lived for four more years as a result of Dr Tan’s negligence; and instead held that such negligence has caused Mr Traynor to lose his full life expectancy.
As a result, the damages payable to Mr Traynor’s widow, 53-year-old Ms Carol Ann Armstrong, and his dependants, which were assessed on the former basis, will have to be re-assessed by the High Court again. The Court of Appeal expressed their view that it would be in the interest of the parties to explore the possibility of a settlement in relation to damages, both for the purposes of effecting closure and to save costs.
The appeals between Dr Tan and Quest Laboratories on the one hand and Ms Armstrong on the other, which raises several difficult questions of principle and law, were heard in January this year and judgment was reserved.
Judge of Appeal Andrew Phang, in penning the written judgment for the court, explained that the legal test used to determine whether a practitioner has met the general professional standard, was not applicable to determining questions of causation, i.e. whether the negligence had caused any loss.
The court also remarked that it would be good practice for the parties’ lawyers and experts to also make available the supporting literature and source material, apart from just reports and slides, and to carefully cite it in context. This way, the court could then test the accuracy, veracity, methodological rigour, logic, and explanatory force of the experts’ opinions.
As Ms Armstrong had succeeded on the point that Dr Tan’s negligence had caused Mr Traynor’s death, the controversial legal question as to whether negligence resulting in loss of chance of survival can form a basis for claiming damages, was left to be answered on another occasion.
The panel hearing the appeals included Chief Justice Sundaresh Menon, Judges of Appeal Judith Prakash and Tay Yong Kwang, as well as Justice Belinda Ang. Dr Tan and Quest Laboratories were represented by Senior Counsel Kuah Boon Theng while Ms Armstrong was represented by Mr Edmund Kronenburg.