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Re Compensation Fund established under s 75 of the Legal Profession Act
(Cap 161, 2000 Ed) [2001] 4 SLR 633
High Court - Originating Summons No 601132 of 2001
Tay Yong Kwang JC
15, 22 October 2001
Compensation Fund - Application of moneys in fund - Use of fund to pay off building loan for Law Society - Whether building loan was for purposes of fund - Whether application should be allowed - Legal Profession Act (Cap 161, 2000 Ed) s 75(9)(d)
Andrew Chan (Allen & Gledhill) for the applicant.
N Sreenivasan (Derrick Ravi Partnership), Treasurer of the Law Society of
Singapore.
The Law Society of Singapore sought essentially the following orders: (1) a declaration that the Law Society may under s 75(9)(d) of the Legal Profession Act (Cap 161, 2000 Ed) ('LPA') apply or otherwise credit moneys, investments or other property in the Compensation Fund that is administered by the Law Society pursuant to s 75 of the LPA in accordance with the scheme set out in the Schedule annexed to the originating summons; and/or (2) an order under s 56 of the Trustees Act (Cap 337, 1999 Ed) ('TA') conferring power on the Law Society to apply or otherwise credit moneys, investments or property in the Compensation Fund in accordance with the said scheme.
Held, declaring that s 75(9)(d) of the LPA did not permit the Law Society to put the proposed scheme into effect and sanctioning the proposed scheme pursuant to s 56 of the TA, with conditions:
Section 75 of the LPA (and its predecessor) is meant to govern the
Compensation Fund only and is not a general provision on the financial powers of
the Law Society. Paragraphs (a), (c), (e) and (f) of s 75(9) all have specific
reference to the Compensation Fund. Even para (b), which, when read cursorily,
could be said to have extended the use of the Compensation Fund for purposes
unconnected with it, is in fact related to the Council's powers under s 75(11)
to satisfy itself that there has been dishonesty which has caused loss. Read in
the context in which
s 75(9)(d) appears, it is plain that the 'moneys borrowed' must be those
envisaged in s 75(6) and (8)(d) and must be for the purposes of the Compensation
Fund. It cannot be that the Compensation Fund may be depleted by borrowings for
other purposes.
It was accepted that the loan for the purchase of the Law Society's building was not one for the purposes of the Compensation Fund and therefore could not be repaid out of the Compensation Fund.
Being a trustee by implication of law, the Law Society was entitled to make an application to sanction the proposed scheme under s 56 of the TA. The proposed scheme fell within the terms 'investment' or 'other transaction' in this section.
The LPA did not expressly prohibit the Law Society from doing what it proposed to do through the scheme. It made no difference that the Law Society would also benefit from the savings in interest payments. This additional benefit was not at the expense of the Compensation Fund. The Law Society was not making a profit for itself; it was merely seeking to spend less on interest payments while at the same time ensuring a higher and more assured yield for the Compensation Fund. Clearly, therefore, the scheme was expedient for the Compensation Fund and should be sanctioned by the court.
Madiaalakan s/o Muthusamy v Public Prosecutor [2001] 4 SLR 618
High Court - Magistrate's Appeal No 53 of 2001
Yong Pung How CJ
16, 31 October 2001
Failure to provide breath specimen - Reasonable excuse - Accused suffered from Chronic Obstructive Lung Disease - Whether a reasonable excuse - Elements - Road Traffic Act (Cap 276, 1997 Ed) s 70(4)(a)
Sentencing - Failure to provide breath specimen - Enhanced penalties - Whether conviction under Road Traffic Act (Cap 276, 1997 Ed) s 70(4)(a) to be treated as substantive conviction under s 67 - Accused had prior conviction under s 67 - Whether present conviction under s 70(4)(a) to be treated as second conviction under s 67 thereby attracting enhanced penalties - Road Traffic Act (Cap 276, 1997 Ed) ss 67 & 70(4)(a)
S Kumar (SK Kumar & Associates) for the appellant/respondent.
Anandan Bala and Chng Hwee Chin (Deputy Public Prosecutors) for the
respondent/appellant.
On 11 February 2000, the appellant, on a motorcycle, failed to obey a red light signal at the junction of Clementi Avenue 6 and Jalan Lempang. He was stopped by police officers, who conducted a breathalyser test on him. He failed to provide a sufficient breath specimen and was arrested. At the police station, he failed again to provide a sufficient breath specimen for a Breath Evidentiary Analyser test.
The appellant was shown to have Chronic Obstructive Lung Disease. He claimed that he could not provide a sufficient breath specimen as a result. He claimed also to have informed an officer that he had experienced chest pains during the test.
The appellant was convicted of an offence under s 70(4)(a) of the Road Traffic Act (Cap 276, 1997 Ed) for failing to provide a breath specimen, fined $2,500 and disqualified from driving all classes of vehicles for two years. The appellant appealed against conviction. The respondent cross-appealed against sentence, claiming that this should have been deemed the appellant's second conviction under s 67 of the same Act.
Held, dismissing the appeal and allowing the cross-appeal:
One had a 'reasonable excuse' within the meaning of s 70(4)(a) of the Road Traffic Act if one was physically or mentally unable to provide a breath specimen, or the provision of the specimen would entail a substantial risk to one's health; R v Lennard [1973] 2 All ER 831; [1973] 1 WLR 483 followed. An example of one's physical or mental inability to provide a breath specimen arose where one had tried his best, but still failed; Cotgrove v Cooney [1987] RTR 124 followed.
The appellant did not have a reasonable excuse. Although he had Chronic Obstructive Lung Disease, the medical evidence showed that he would still have been able to give a sufficient breath specimen. Hence he had not tried his best.
Even if the appellant had a reasonable excuse, the prosecution had negatived it. The appellant did not tell the police officers about his condition when asked.
Parliament had clearly intended to deter repeat offenders and to ensure that they did not escape the enhanced penalties by depriving the prosecution of evidence necessary for a subsequent conviction.
The problem with equating a failure to provide a breath or blood sample with an act of drink driving was that an omission was treated as a culpable act. This, however, is but one example of a legal presumption intended to level the field, in a situation where it is much easier for an accused person to prove his innocence than for the prosecution to prove his guilt.
A conviction under s 70(4)(a) should be treated as a substantive conviction under s 67.
TORT
Yeo Peng Hock Henry v Pai Lily [2001] 4 SLR 571
Court of Appeal - Civil Appeal No 600048 of 2001
Yong Pung How CJ, LP Thean and Chao Hick Tin JJA
20 August, 26 October 2001
Negligence - Medical negligence - General medical practitioner's failure to advise patient to seek immediate specialist consultation - Whether general medical practitioner negligent and/or in breach of duty
Negligence - Medical negligence - Causation - General medical practitioner's failure to advise patient to seek immediate specialist consultation - Resultant delay in diagnosis and treatment of patient's medical problem leading to loss of vision in left eye - Whether general medical practitioner's negligence and/or breach of duty caused or materially contributed to patient's loss
Quek Mong Hua and Adeline Foo (Lee & Lee) for the appellant.
Harpreet Singh Nehal, Edmund Kronenburg and Shirin Tang (Drew & Napier LLC)
for the respondent.
The appellant ('Dr Yeo') was a general medical practitioner of more than
20 years' experience. The respondent ('Ms Pai') was his patient and had been
consulting with him in respect of general medical problems since February 1992.
On 18 and 19 December 1996, Ms Pai saw Dr Yeo with complaints of fever, cough
and cold. At 2pm on 23 December 1996, she consulted him again with a new symptom
of blurred vision and spots in her left eye. Dr Yeo then suspected that she had
a detached retina as well as a urinary tract infection. It was disputed whether
Dr Yeo actually advised Ms Pai to go immediately to see an eye specialist. Dr
Yeo claimed that he did do so, but as Ms Pai had refused to accede to his
instruction, he accordingly told her to see a doctor should her symptoms persist
or worsen. Ms Pai, however, maintained that Dr Yeo had never told her to consult
an eye specialist immediately. In any case, Ms Pai only went to the Accident
& Emergency ('A&E') Unit of the Singapore General Hospital at 3.20pm on
24 December 1996. She was subsequently diagnosed as having a liver and blood
infection from the very rare but virulent bacteria called Klebsiella. Her eye
infection worsened after showing some initial improvements, and she eventually
lost the vision of her left eye in January 1997.
Ms Pai brought an action against Dr Yeo claiming damages for negligence and/or breach of duty on the consultations of 19 December and 23 December 1996. The trial judge dismissed the claim based on the 19 December 1996 consultation, finding that there was nothing to indicate a urinary tract infection and that Dr Yeo was accordingly not negligent. The trial judge, however, found that as regards the 23 December 1996 consultation, Dr Yeo had failed to advise her to go immediately to see an eye specialist and that in not doing so, Dr Yeo had fallen short of the standard of care required of him as a general practitioner. The judge next found that on the question of causation, Ms Pai would have gone to the A&E Unit immediately if so instructed by Dr Yeo. He also found that if Ms Pai had so reported to the A&E Unit on the evening of 23 December 1996, as opposed to the afternoon of 24 December 1996, her eye would probably have been saved. Accordingly, he found Dr Yeo liable for negligence and/or breach of duty.
Dr Yeo appealed on three main grounds. Firstly, he submitted that the trial judge erred in finding him in breach of the standard of care in failing to advise Ms Pai to seek urgent consultation with an eye specialist. Secondly, he contended that even if he was in breach, his breach was not the cause of Ms Pai's loss of vision in her left eye. Thirdly, he argued that, again assuming he was in breach of duty, the loss sustained by Ms Pai was not foreseeable as a direct consequence of such breach of duty.
Held, allowing the appeal:
The trial judge was fully justified in arriving at the finding that Dr Yeo did not advise Ms Pai to go to the hospital or consult an eye specialist immediately. There was ample evidence to support this finding.
It was accepted by Dr Yeo that a detached retina was an emergency and any competent general practitioner would have advised a patient with a detached retina to go immediately to a hospital or consult an eye specialist. Thus, Dr Yeo by not advising Ms Pai to go immediately to the hospital or to consult an eye specialist, fell short of that standard of care.
With regards to causation, the first question was whether, if Ms Pai had been properly advised by Dr Yeo, she would have gone immediately to the hospital. The trial judge found that Ms Pai would have done so, and he was clearly right in this finding.
The second question relating to causation was whether Ms Pai's eye would have been saved had she consulted at the A&E Unit on the evening of 23 December 1996. On the totality of the evidence, Ms Pai had not discharged her burden of proving, on a balance of probabilities, that Dr Yeo's negligence and/or breach of duty caused or materially contributed to the loss of her vision in the left eye. On this ground, her claim could not succeed.
Re Compensation Fund established under s 75 of the Legal Profession Act
(Cap 161, 2000 Ed) [2001] 4 SLR 633
High Court - Originating Summons No 601132 of 2001
Tay Yong Kwang JC
15, 22 October 2001
Trust property - Investment or other transaction - Whether s 56(1) of Trustees Act (Cap 337, 1999 Ed) could be invoked for court to sanction applicant's loan scheme - Whether scheme an 'investment' or 'other transaction' - Whether scheme expedient - Trustees Act (Cap 337, 1999 Ed) s 56(1)
See LEGAL PROFESSION.