1 The appeal in CA/CA 39/2021 (“CA 39”) was a sequel to the Court of Appeal’s decision in Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] 1 SLR 834 (“the first CA Judgment”) in which it held the respondent, Changi General Hospital Pte Ltd (“CGH”), to be in breach of its duty of care to the first appellant, Ms Noor Azlin bte Abdul Rahman (“Ms Azlin”). CGH’s negligence caused a delay in diagnosing Ms Azlin with lung cancer, resulting in the progression of the cancer from stage I to stage IIA, the growth of the cancerous nodule and the subsequent metastasis of the nodule. The Court of Appeal remitted the question of loss and damage, including the quantum of damages to be awarded (if any), to the High Court judge (“the Judge”) for her determination: at [1].

2 A month after the release of the first CA Judgment, Ms Azlin passed away from cancer. This tragic turn of events fundamentally altered the factual and evidential matrix of Ms Azlin’s case against CGH. This was also, correctly, the basis upon which the Judge assessed Ms Azlin’s claims in Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd and others [2021] SGHC 10 after a six-day trial in 2020 (“the AD Hearing”): at [2]–[3].

3 The Judge found that there was a causal link between CGH’s negligence and Ms Azlin’s death from lung cancer. She awarded the appellants a sum of $326,620.61 in damages and $105,000 in costs. CA 39 concerned only the Judge’s quantification of damages and costs. No challenge was brought against her decision on causation and liability: at [4].

4 Counsel for the appellants, Mr Vijay Kumar Rai submitted that the Judge’s award was manifestly inadequate and averred that the Judge had erred in six main respects: (a) requiring the appellants to prove average life expectancy when this should simply be taken as 86 years; (b) dismissing Ms Azlin’s claim for loss of earnings and Central Provident Fund (“CPF”) contributions during her living years (ie, 2016 to 2018) and lost years (ie, 2019 to 2044); (c) awarding Ms Azlin only $250,000 for pain and suffering and loss of amenity, and disallowing her claim for loss of marriage prospects; (d) disallowing Ms Azlin’s claim for medical expenses, transport expenses as well as expenses for nursing care and a domestic and auxiliary helper from 2015 to 1 April 2019; (e) disallowing Ms Azlin’s claims for punitive and/or aggravated damages which should have been awarded at twice that of general damages awarded; and (f) awarding costs of only $105,000: at [34].

5 Counsel for the respondent, Ms Kuah Boon Theng SC submitted that the Judge was overly generous in her award of damages and costs, but nonetheless aligned herself with the decision of the Judge: at [40].

6 The Court of Appeal allowed CA 39 in part and awarded the appellants a sum of $343,020.61 in damages. It also affirmed the Judge’s award of $105,000 for the costs of the AD Hearing: at [5].

7 As a preliminary point, by virtue of the fact that CGH had not filed any cross-appeal against the Judge’s decision, Ms Kuah was precluded from asking for a reduction of the Judge’s award in CA 39. This was because O 57 r 9A of the ROC only permitted a respondent to mount a case to affirm the ultimate decision of the lower court. The rule did not permit a party to challenge the decision without filing a cross-appeal: at [44].

8 The rule only applied if the purpose of the respondent doing so was to mount a case to affirm the lower court’s ultimate decision (or to vary the decision of the lower court, in the event of a successful appeal). If, however, the respondent was dissatisfied with the lower court’s decision and wished to convince the appellate court that the lower court’s ultimate decision should be overturned in some way or another, then the proper approach would be to file a cross-appeal and to comply with the relevant procedures for doing so. Put another way, O 57 r 9A(5) of the ROC did not permit a party to mount what was essentially a backdoor appeal against the decision of the lower court without following the proper procedure for an appeal: at [51].

9 In so far as the written submissions of CGH suggested that the amounts awarded for (a) pain and suffering from the cancer tumour, treatment and shock and anxiety, (b) loss of amenity, and (c) pain and suffering due to Ms Azlin’s awareness of the reduction in her life expectancy, ought to be reduced, this would constitute an active challenge to reduce the Judge’s ultimate award. This was impermissible given that CGH had not filed any cross-appeal. Order 57 r 9A(5) of the ROC could not assist Ms Kuah because it would apply only if CGH was seeking to affirm the decision of the Judge: at [43] and [54].

10 The appropriate approach for determining Ms Azlin’s life expectancy was by reference to evidence on the average life expectancies for females in Singapore as a proxy per the authorities and the relevant precedents. First, Ms Azlin was a Singapore citizen and none of the parties contended that her life expectancy would have significantly deviated from the norm in Singapore. Second, while the burden laid on the plaintiff to prove, on a balance of probabilities, the facts that he or she wished to rely on, it would be difficult to expect every plaintiff in a personal injury case to be able to adduce expert evidence as to life expectancy (especially for plaintiffs who are of limited means). Singapore’s demographic data and past precedents thus served as a good proxy in the absence of individualised actuarial data. Third, employing Singapore’s demographic data to estimate life expectancy would be in line with the courts’ approach for determining working life expectancy, ie, by using the minimum statutory age of retirement or the mandatory re-employment age in ss 4, 7 and 7A of the Retirement and Re-employment Act (Cap 274A, 2012 Rev Ed) in the absence of any particular characteristics of the claimant and the nature of the work which might cause some deviation from the norm: at [76].

11 Given the Judge’s finding that but for CGH’s breach, Ms Azlin would not have suffered a diminution of her full life expectancy, the Judge ought to have considered Singapore’s demographic data on the average life expectancies of females in Singapore. Data from the Singapore Department of Statistics (“DOS”) showed that Ms Azlin could have expected to live till 85.5 years and would have had a remaining life expectancy of 50.5 years. The data from the DOS were in line with the precedents and could be used to approximate Ms Azlin’s life expectancy: at [77]–[79].

12 But for CGH’s negligence, Ms Azlin’s life expectancy would therefore have been 85.5 years and the court therefore allowed the appellant’s appeal in respect of this issue: at [80].

13 The court granted Ms Azlin a sum of $256,000 for pain and suffering, loss of amenity and loss of marriage prospects: at [81] and [99].

(a) The court affirmed the Judge’s amalgamated award of $140,000 for Ms Azlin’s pain and suffering from the tumour, treatment and shock and anxiety as it was eminently reasonable: at [107]–[120].

(b) The court dismissed the appellant’s appeal in respect of the Judge’s award for Ms Azlin’s pain and suffering due to the awareness of her reduction in life expectancy. In its view, the award of $80,000 was more than generous to the appellants given that (a) pain and suffering due to such awareness was likely to be psychological or psychiatric in nature, but even the most serious psychiatric injuries would attract an award ranging from $25,000 to $55,000 based on the guidelines, and (b) an $80,000 award is far higher than any of the existing awards for pain and suffering due to a plaintiff’s awareness of the reduction in life expectancy. However, as CGH had not brought an appeal in this regard, the court said no more on this matter: at [121]–[139].

(c) The court affirmed the Judge’s award of $30,000 for loss of amenity as it was reasonable: at [140]–[147].

(d) The court allowed the appellant’s appeal on loss of marriage prospects and awarded Ms Azlin $6,000: at [148]–[156].

14 On loss of marriage prospects, the court clarified that the issue of whether marriage was “well in sight” or “on the cards” should be seen as going only to the quantum of damages. This was because a person could lose his or her marriage prospects even if no marriage was planned, and correspondingly, should be compensated for the loss. Conversely, damages should be enhanced if a relationship progressing towards marriage had been derailed due to the plaintiff’s injuries and/or disease, because the loss of the planned marriage would make the loss of marriage prospects all the more painful and would be an added blow to an already suffering plaintiff: at [151].

15 The Judge gave three reasons for finding that Ms Azlin should not be awarded damages for loss of marriage prospects. First, it was not unheard of for couples to tie the knot before one partner dies from a serious illness like cancer. Second, Ms Azlin’s then boyfriend had testified that while Ms Azlin had raised the topic of marriage a few times in 2013 and early 2014, nothing had been planned “because of [the] instability of [his] work”. This rendered Ms Azlin’s situation different from in Poh Huat Heng Corp Pte Ltd and others v Hafizul Islam Kofil Uddin [2012] 3 SLR 1003 (“Poh Huat Heng”) where marriage was clearly “on the cards”. Third, Ms Azlin’s quality of life was sustained by ALK-inhibitors and her degree of disability did not rise to the degree of disability seen in Poh Huat Heng: at [152].

16 However, the court did not think that the Judge’s three reasons precluded an award for loss of marriage prospects in CA 39. While it was not unheard of for people to marry just before a partner dies of a serious medical illness, such cases were exceptional and rare. Taken to its logical conclusion, the Judge’s first reason would mean that so long as there were some cases in which individuals wished to tie the knot with their partners who suffer from serious and debilitating disabilities, injured claimants would not be entitled to damages for loss of marriage prospects. Further, the test was not that there was absolutely no prospect of the plaintiff ever marrying, but whether the plaintiff could prove on a balance of probabilities that he or she had no prospect of ever marrying. The present case was unique. Ms Azlin did not merely “suffer from a serious illness like cancer”; rather, she suffered from a rare genetic mutation and the delay occasioned by CGH’s negligence resulted in stage IV lung cancer which was generally considered to be incurable. Early death was inevitable – much like the plaintiff in Poh Huat Heng (at [37]), any hopes of being able to find someone to marry in such a situation, especially in the last days of Ms Azlin’s life would be no more than “wishful thinking”. The inevitability of Ms Azlin’s early and imminent death when her cancer reached stage IV made it reasonable to say that she had lost all prospects of marriage as a result of CGH’s negligence. The fact that ALK-inhibitors helped Ms Azlin to sustain her quality of life in her dying days did not change the reality that she was dying. As for the Judge’s second reason, the court agreed with the Judge that “marriage was not on the cards”. However, this was a matter that should go towards the quantum of damages to be awarded: at [153]–[155].

17 The court was of the view that an overall award of $256,000 would be a fair and reasonable sum to compensate for Ms Azlin’s pain and suffering, loss of amenity and loss of marriage prospects: at [160]–[161].

18 The court dismissed the appeal in respect of the appellants’ claim for Ms Azlin’s expenses from 2014 to 1 April 2019 (“post-writ claims” or “post-writ expenses”), save for the claim in respect of post-writ transport expenses which the court allowed in part: at [162] and [194].

(a) The court dismissed the appellant’s appeal in respect of Ms Azlin’s post-writ medical expenses. The burden laid upon the appellants to make good their claim for past medical expenses. In circumstances where even the method by which the appellants’ claim was quantified was unclear to the court, their claim had to be dismissed: at [181]–[188].

(b) The court allowed the appellants’ appeal in respect of Ms Azlin’s post-writ transport expenses in part. The Judge had rightly observed that there was no evidence to show that Ms Azlin had incurred the claimed sum of $37,500 in transport expenses from January 2015 to March 2019. That said, logic and common sense would suggest that some transport expenses must have been incurred, and unlike the claims for post-writ medical expenses and post-writ nursing care and domestic and auxiliary helper expenses, the Judge had made unchallenged findings of fact which provide a basis upon which post-writ medical expenses may be calculated. The court therefore awarded Ms Azlin a sum of $10,400 for her transport expenses beginning from October 2016 when the clinical trial ended, till the date of her death on 1 April 2019: at [189]–[191].

(c) The court dismissed the appeal in respect of Ms Azlin’s post-writ expenses for nursing care, domestic and auxiliary helper. This was for the simple reason that they had never been incurred. Mr Rai candidly accepted that no nurse and/or domestic helper had been engaged. Therefore, Ms Azlin had not incurred any proven loss that warranted compensation: at [191]–[192].

19 The court affirmed the Judge’s decision not to award any damages for Ms Azlin’s loss of earnings and CPF contributions from 2016 to 2044: at [195] and [208]–[232].

20 The court affirmed the Judge’s decision on aggravated and punitive damages and declined to award any damages for this to the appellants: at [233] and [279].

(a) While CGH did not contest the availability of aggravated damages in cases of medical negligence, Ms Azlin’s claim for aggravated and/or punitive damages suffered from a number of fundamental difficulties. These included: (a) the statutory bar under s 10(3)(a)(i) of the Civil Law Act (Cap 43, 1999 Rev Ed) in respect of any claim for punitive damages after a claimant’s death; (b) the absence of any pleading in support of a claim for aggravated and/or punitive damages; and (c) the fact that no evidence had ever been led whether at the Original Hearing or at the AD Hearing as to these two heads of claim: at [244].

(b) Chief amongst these various difficulties was the fact that Ms Azlin’s pleadings were bereft of any mention of aggravated and/or punitive damages and therefore provided no indication that a claim quantified at twice the sum of general damages awarded was being brought against CGH. The claim for general damages already stood at $4,471,523.35 – no paltry sum by any measure. It was therefore curious that the claimed sum for aggravated and/or punitive damages, a staggering sum of $8,943,046.70, found no foothold whatsoever in the pleadings: at [245].

21 As a result of this anomalous state of affairs, the question before the court was whether aggravated and punitive damages had to be specifically pleaded in order for them to be claimed and granted. The court answered this question in the affirmative as such a requirement was in line with the general rules concerning the necessity of pleadings, the “exceptional” nature of both forms of damages as well as the purpose and object of pleadings: at [246]–[273].

22 This was, however, subject to the important caveat that the court should not adopt an overly formalistic and inflexibly rule-bound approach which might result in substantive injustice. In cases where no party was taken by surprise and no party would be prejudiced irremediably by the raising of unpleaded claims or arguments, the court may allow the raising of unpleaded claims and arguments. The court reiterated that cases where it was clear that no prejudice would be caused by the reliance on an unpleaded cause of action or issue that has not been examined at the trial were likely to be uncommon. Given the nature of aggravated and punitive damages and the manner in which they were awarded, the threshold that must be crossed before the court was satisfied that it would be permissible to consider such unpleaded and unparticularised claims will be high and would rarely, if ever, be crossed: at [274].

23 Ms Azlin’s claim for aggravated and/or punitive damages failed at the outset for want of pleading. There was no compelling reason that would warrant a departure from the rule that aggravated and punitive damages had to be specifically pleaded and particularised, or for the court to exercise its power under O 33 r 2 of the ROC to broaden the damages assessment inquiry before it to also consider these unpleaded claims: at [275]–[276].

24 Even if aggravated and/or punitive damages were claimable notwithstanding the failure to plead such damages, the claim was bound to fail for the simple reason that CGH’s conduct was self-evidently not “reprehensible”: at [277].

25 The court affirmed the Judge’s costs award for the AD Hearing: at [280]–[283].

26 In conclusion, the court awarded the appellants a combined sum of $343,020.61 in damages and $105,000 in costs for the AD Hearing. The appellants’ appeal was therefore allowed in part: at [284].