Widow wins appeal in medical lab negligence case, top court rules for reassessing $1.2 million award

The Appeal Court urged all parties to explore the possibility of arriving at a settlement on the damages issue in the interests of "effecting closure as well as the saving of costs". ST PHOTO: KUA CHEE SIONG

SINGAPORE - The Court of Appeal has ordered the High Court to redetermine an award of more than $1.2 million to a widow who sued a medical lab and its medical director for failing to detect cancer in her husband's skin sample.

The five-judge court allowed the appeal of Carol Ann Armstrong, 53, that the medical negligence caused her husband, Peter Traynor, to lose his full life expectancy instead of the four years held in the judgment of the High Court last year.

The Court of Appeal affirmed the High Court's finding that Quest Laboratories and its director, Dr Tan Hong Wui, had failed to spot the skin cancer in a skin sample from Mr Traynor in 2009. Mr Traynor, a Singapore-based information technology specialist, died in 2013 at the age of 49. The Canadian couple have two daughters aged 10 and 12.

Judge of Appeal Andrew Phang in decision grounds on Tuesday (Nov 26) said: "It is difficult to understate the significance of the Respondents' breach... lives depend upon accurate diagnoses by pathologists, and diagnoses had therefore to be undertaken with due diligence."

"In the present case, Dr Tan not only failed to state that he could not rule out melanoma, he also delivered a report indicating the exact opposite - that there was no malignancy. Put simply, Dr Tan intended to convey, and did convey, that the lesion was benign," wrote Justice Phang on the court's behalf.

Both parties' appeals on the calculation of damages were partially allowed and the case is to be remitted to the High Court to revise the sum payable based on the parameters provided by the Court of Appeal.

The High Court last year found that the defendants' breach was "straightforward and obvious" and rejected their claim that Mr Traynor's fate was biologically determined and he would have died from his cancer anyway. But the High Court judge had then also rejected Ms Armstrong's claim that her husband could have been cured, finding instead that he would have lived only for four more years.

The judge, in assessing the sums payable last year, awarded the widow $1,241,334 in damages, comprising $346,677 on the grounds of dependency and $894,657 for the loss of inheritance.

Ms Armstrong appealed to the apex court and the defendants also cross-appealed.

Her lawyers led by Edmund Kronenburg and Christopher Goh argued that the damages should have been awarded based on Mr Traynor's full life expectancy of up to the age of 82.

The respondents' team of lawyers led by Senior Counsel Kuah Boon Theng and lawyer Eric Tin submitted that the High Court erred in finding their clients liable for breach of duty. Among other things, they urged the court to reduce the damages payable in relation to Mr Traynor's estimated income.

The Appeal Court comprising Chief Justice Sundaresh Menon, Judges of Appeal Andrew Phang, Judith Prakash and Tay Yong Kwang as well as Justice Belinda Ang, heard the case in January and reserved judgment and affirmed the respondents' misdiagnosis was a straightforward breach.

The court found that the sole cause of Mr Traynor's death was the melanoma that had spread through his bloodstream from his infected lymph nodes after 2009, and the breach by Quest Lab and Dr Tan led to a delay in diagnosis which allowed the cancer to grow in his lymph nodes.

The Appeal Court revised the High Court's finding of Mr Traynor's annual income from $450,000 to $308,386 but affirmed the majority of the judge's assessments on the pre-trial dependency and the loss of inheritance claims.

It also allowed Ms Armstrong's appeal in relation to the post-trial loss of inheritance claim.

This would now depend on the judge's determination and the multiplier-multiplicand to be applied. The judge would also have to assess, among other things, Mr Traynor's retirement age, the educational expenses for his daughters beyond four years and savings in deriving the appropriate sum.

"Accordingly, we remit these issues to the judge for him to reach the appropriate sum for the post-trial loss of inheritance," said the Appeal Court.

The Appeal Court said that in the context of a dependency claim, the multiplier is the number of years for which a dependent can claim for his or her loss, with a discount for accelerated receipt of funds and the vicissitudes of life. The multiplicand is the annual value of the dependency.

However, in the context of a loss of inheritance claim, the multiplier must also be adjusted to reflect the post-retirement expenses of the deceased. The multiplicand is the savings of the deceased per annum.

The widow in her initial statement of claim in January last year sought more than $10 million.

The Appeal Court urged all parties to explore the possibility of arriving at a settlement on the damages issue in the interests of "effecting closure as well as the saving of costs".

Quest Lab and Dr Tan were ordered to pay $75,000 to Ms Armstrong for the cost of appeal.

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