AHMAD FAIZAL BIN MOHAMAD ALI v JAY SHREE L. C. DOSHI (secara sendiri dan sebagai Wasi dan Pemegang Amanah Estet Vinayak Prabhakar Pradhan) (W-01(NCvC)(W)-440-07/2024)

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KERAJAAN MALAYSIA … PERAYU-PERAYU DAN JAY SHREE L.C. DOSHI (secara sendiri dan sebagai Wasi dan Pemegang Amanah Estet Vinayak Prabhakar Pradhan) …RESPONDEN Dalam Mahkamah Tinggi di Kuala Lumpur (Bahagian Sivil) Guaman Sivil No: WA-21NCVC-126-12/2020 ANTARA JAY SHREE L.C. DOSHI (secara sendiri dan sebagai Wasi dan Pemegang Amanah Estet Vinayak Prabhakar Pradhan) …PLAINTIF DAN 11/02/2026 15:36:52 W-01(NCvC)(W)-440-07/2024 Kand. 71 S/N fbv1V8qaBUudy4jeldKRVg

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KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN CORAM SUPANG LIAN, JCA SHAHNAZ BINT SULAIMAN, JCA MOHD RADZI BIN HARUN, HCJ

The appeal before us arises from a medical negligence claim concerning the treatment of the late Vinayak Prabhakar Pradhan ("the Deceased") for a recurrent neuroendocrine tumour. At the High Court, the crux of the case revolved around a Radiofrequency Ablation (RFA) procedure performed by the First Appellant, Dr. Ahmad Faizal bin Mohamad Ali on 21 December 2017. This RFA procedure departed from a multidisciplinary tumour board's recommendation for cryoablation, resulting in a severe and deep burn injury to the Deceased's chest. The Respondent (the Deceased's widow and estate executrix) successfully established that the First Appellant was negligent in obtaining informed consent, in the execution of the procedure, and in post-operative aftercare. The High Court awarded the Respondent substantial damages totalling RM1,553,760.17, comprising general, aggravated, and special damages, plus costs. S/N fbv1V8qaBUudy4jeldKRVg

Aggrieved by this award, the Appellants (Dr. Ahmad Faizal, Dr. Normala binti Haji Basiron, and the Government of Malaysia) filed Appeal No. W-01(NCVC)(W)-440-07/2024, contending that the quantum of damages awarded is manifestly excessive and should be drastically reduced or set aside.

There is also a cross-appeal by the Respondent in Appeal No. W- 01(NCVC)(W)-440-07/2024, whereby the Respondent seeks to vary the award of general damages and aggravated damages to a higher sum.

Concurrently, the Respondent filed an Appeal (Appeal No. W- 01(NCVC)(W)-441-07/2024) challenging the High Court's dismissal of her claims against the Second and Third Appellants. However, on 11 November 2025, the Respondent formally withdrew this Appeal, and it was struck out by this Court with an agreed cost of RM7,000.00 to the Second and Third Appellants subject to allocatur fee.

Therefore, the sole substantive matter before us now is Appeal No. 440, where the Appellants seek a review and reduction of the damages awarded by the High Court. The Respondent resists the appeal and by way of her own cross-appeal within Appeal 440, seeks an increase in the general and aggravated damages.

The Respondent, Jayshree L.C. Doshi initiated this medical negligence suit in a dual capacity: personally, and as the executrix of the estate of her late husband, Vinayak Prabhakar Pradhan. The S/N fbv1V8qaBUudy4jeldKRVg Appellants are Dr. Ahmad Faizal bin Mohamad Ali (First Appellant), an interventional radiologist; Dr. Normala binti Haji Basiron (Second Appellant), a plastic surgeon; and the Government of Malaysia (Third Appellant), their employer.

The Deceased had a recurrent and metastatic thymic neuroendocrine tumor (NET). A multidisciplinary tumor board meeting (TBMM) at the Institut Kanser Negara (IKN) was held on 9 October 2017 to discuss the Deceased’s enlarged tumor. The First Appellant was present at the TBMM. Notably, due to the tumor's perilous proximity to the heart, the medical officers present at the TBMM were reluctant to undertake treatment. The First Appellant volunteered to attempt it. The TBMM’s consensus recommended treatment for the primary mediastinal lesion that was situated near the Deceased’s chest to be treated by localized ablation therapy via cryoablation to shrink the size of the tumor.

Despite the recommendation of the TBMM, the First Appellant, after discussions with the Respondent and the Deceased between 29 November and 5 December 2017, decided to proceed with an RFA procedure instead. Crucially, he did not inform the Respondent and/or the Deceased of the TBMM's recommendation for cryoablation, nor of the other doctors' reluctance to perform the RFA due to its known risks particularly taking into account the Deceased’s condition. He instead informed them the RFA carried a "minimal risk," an opinion he held as he considered a burn injury "minimal and rare." Consequently, the risk of a severe burn was not disclosed. Furthermore, no detailed surgical plan was discussed about the procedure's precise objective and scope. The Respondent only S/N fbv1V8qaBUudy4jeldKRVg discovered about the risk after her husband's death from a later medical report.

The First Appellant performed the RFA procedure on 21 December 2017 and resulted in a severe and full-thickness burn injury to the Deceased's chest at the treatment site. This injury destroyed skin, fat, and the pectoralis major muscle down to the sternum, leaving a gaping wound and failed to heal over subsequent months. A day after the procedure (22 December 2017), the Deceased was discharged from IKN with a referral to Kuala Lumpur General Hospital (HKL) for what the First Appellant erroneously described in a memo as a "superficial erythematous skin burn wound injury".

On 8 January 2018, the Respondent and the Deceased was referred to the Second Appellant's department at Kuala Lumpur General Hospital (HKL) for wound management. After assessments and a CT scan, the Second Appellant confirmed that wound healing required resection of the residual tumor together with the necrotic tissue. However, a thoracic surgeon at HKL found the tumor to be unresectable and deemed such surgery to carry a "VERY HIGH risk of morbidity and mortality." Effectively, HKL presented no viable plan for closing the wound.

However, the Deceased and Respondent opted not to pursue this treatment at HKL. The Deceased and Respondent opted to seek further treatment at private healthcare institutions. The Deceased did not attend his follow-up appointment at HKL on 17 January 2018 and did not inform the HKL team of this decision. S/N fbv1V8qaBUudy4jeldKRVg

The Deceased subsequently underwent a series of extensive treatments at private institutions. The first pivotal intervention occurred at Cardiac Vascular Sentral Kuala Lumpur (“CVS”), where the Deceased was admitted. The primary treatment at CVS was a course of intravenous (IV) antibiotic therapy, administered over 7 days. This, according to the Respondent’s Reply Submission, was a measure to combat the severe infection raging in the deep, necrotic burn wound, which posed an imminent risk of fatal sepsis. The severity of the Deceased condition necessitated a further, prolonged course of IV antibiotics for 42 days starting in March 2018, which was managed partly at CVS and partly at home.

Concurrently, the Deceased sought surgical evaluation at KPJ Specialist Hospital Damansara (“KPJ”). The Deceased underwent a wound exploration procedure performed by Tan Sri Dr. Yahya and Dr. Oommen. This procedure was a step to physically assess the full extent of the damage beneath the wound by removing further dead tissue, and determine the feasibility of future reconstructive surgery. It represented a proactive attempt to find a surgical solution after HKL had effectively declared none was possible due to the high risks involved.

The Deceased then progressed to Singapore at Mount Elizabeth Novena Hospital (“Novena”) and Thoracic Surgery of Mount Elizabeth Medical Centre (“Mount Elizabeth”). The treatment in Singapore involved two advanced stages.

The first stage in Singapore involved Vacuum-Assisted Closure (VAC) therapy, administered at Novena Hospital in February 2018. S/N fbv1V8qaBUudy4jeldKRVg This specialized treatment uses controlled suction to draw the edges of a wound together, remove infectious fluids, and promote the growth of new tissue. It was a preparatory step to stabilize the wound bed and make it viable for the major reconstructive surgery that was still deemed necessary but highly complex.

The culmination of the Deceased’s treatment was an eight-hour major surgery on 9 May 2018 at Mount Elizabeth Hospital. This procedure was exceptionally extensive due to the depth of the damage. Surgeons had to remove the remaining necrotic tissue and also extensive infected and damaged anatomical structures, including skin, subcutaneous tissue, chest muscles, parts of the sternum, several costal cartilages, a portion of the pericardium (the sac around the heart), and a wedge of his right lung. Subsequently, to cover this defect, a second major surgery was performed where a latissimus dorsi (LD) muscle flap was harvested from his back and rotated to his chest to provide viable tissue coverage. Furthermore, this surgical intervention also addressed the resection of the NET in the mediastinum, the very tumor the initial RFA procedure had failed to ablate and which was compressing his heart.

The Deceased ultimately passed away from complications related to his underlying cancer, not directly from the burn injury. The High Court specifically found that "the cause of death cannot be attributed to the negligence of the First Defendant". S/N fbv1V8qaBUudy4jeldKRVg

The learned High Court Judge framed the agreed issues for trial, which centered on establishing negligence and liability. Against the First Appellant, the issues considered are: a. Whether the First Appellant was qualified to carry out the RFA and the suitability of RFA for this specific tumor. b. Whether the RFA was a suitable procedure to ablate the tumor. c. Whether the risk of carrying out the RFA procedure properly explained to the Respondent and the Deceased. d. Whether the First Appellant had caused trespass to person and battery against the Deceased.

Against both the First and Second Appellants (First and Second Defendant) the additional issue was whether they had acted in the manner of the standard of care required from them, whether both the First and Second Appellants (First and Second Defendant) had acted in the best interest of the Deceased.

Against all the Appellants was whether there was a breach of statutory or fiduciary duty in treating the Deceased.

Additional issue against the Third Appellant was the issue of vicarious liability in the event negligence is proven against the First and Second Appellants.

Finally, whether the Respondents (Plaintiffs) are entitled to the relief sought for. S/N fbv1V8qaBUudy4jeldKRVg

Claim Against the First Appellant (First Defendant)

The learned High Court Judge found the Respondent had successfully established that the First Appellant breached his duty of care on multiple grounds, establishing liability for medical negligence. On breach of the duty to secure informed consent, the learned High Court Judge held that the First Appellant failed in his fundamental duty to provide adequate information for proper consent, a duty governed by the patient’s right to self-determination as outlined in Foo Fio Na v Dr Soo Fook Mun [2007] 1 CLJ 229 and Rogers v Whitaker (1992) 175 CLR 479.

The First Appellant failed to inform the Respondent or the Deceased that the TBMM had specifically recommended cryoablation, not RFA. The learned High Court Judge treated the First Appellant’s failure to challenge the Respondent's testimony on this point as an admission of this concealment. The First Appellant withheld the critical context that other doctors at the TBMM were reluctant to treat due to the tumor's proximity to the heart. Instead of conveying these concerns, he informed the patient and family that the RFA procedure carried only a "minimal risk," a serious misrepresentation that induced their consent.

The learned High Court Judge accepted the expert evidence from the Respondent’s expert witness, Dr. Steven Bandula (SP4) that severe burn injury was an "imminent risk" due to the tumour's proximity to the skin. The High Court found the First Appellant, who considered the risk "minimal and rare," had consequently not explained this vital S/N fbv1V8qaBUudy4jeldKRVg hazard, depriving the patient of the opportunity to make an informed choice.

The High Court noted that no detailed surgical plan covering the exact location and method was ever discussed, leaving the Respondent and the Deceased "in the dark" about the procedure’s objective and scope. Based on these cumulative failures, the High Court ruled the First Appellant breached his duty of care in securing valid consent.

On breach in the standard of care for treatment, the learned High Court Judge applied the Bolam test as affirmed in Zulhasnimar v Dr Kuppu Velumani, [2017] 8 CLJ 605 to distinguish between the choice of procedure and its execution.

The High Court found that selecting RFA over cryoablation was not, in itself, a breach of the standard of care. The Respondent’s own expert witness acknowledged RFA was a recognized and increasingly used ablation method. The existence of a responsible body of medical opinion preferring a different method did not render the Appellant’s choice a breach of duty. Therefore, the claim in trespass and battery failed

However, the High Court found the manner of execution in which the RFA was performed fell below the acceptable standard. The learned High Court Judge accepted expert testimony that standard protective measures, such as pumping chilled saline perfusion through the needle’s chamber shaft to prevent skin burns, were not used. The Appellant’s sole precaution of placing a cooling bottle on the chest of the deceased was deemed wholly inadequate. The learned High S/N fbv1V8qaBUudy4jeldKRVg Court Judge concluded the First Appellant was "not qualified to carry out the RFA procedure in a proper manner in this case" and that his volunteering, while initially laudable, became "improper and reckless".

On breach of duty in aftercare, the High Court held that the duty of care extended to post-operative management. The learned High Court Judge found the First Appellant’s response upon being informed of the severe burn injury was "nonchalant" and "devoid of any concern." He failed to conduct proper follow-up, offering only inadequate advice via text message, thereby leaving the patient and family to manage the catastrophic complications alone, in breach of his continuing duty.

(ii) Claim against the Second Appellant (Second Defendant)

Additionally, the High Court found the Respondent failed to prove any negligence against the Second Appellant. The learned High Court Judge held that the Second Appellant’s duty of care commenced only upon her first personal consultation with the deceased on 8 January 2018.

Her clinical actions, ordering a CT scan and, based on its results, recommending a surgical plan while frankly explaining its high risks, were found to be appropriate and within acceptable standards.

The High Court ruled that the Deceased’s own decision not to proceed with the recommended surgery or further follow-up at her hospital absolved her of liability for any subsequent deterioration. She S/N fbv1V8qaBUudy4jeldKRVg could not be held liable for treatments by other doctors in her department prior to that date.

(iii) Vicarious Liability of the Third Appellant (Third Defendant)

On the vicarious liability of the Third Appellant (Government), the court held the Third Appellant vicariously liable for the negligence of its employee, the First Appellant. The learned High Court Judge rejected the argument that the First Appellant was "on a frolic of his own," as the choice of RFA was an accepted medical procedure undertaken in his capacity as a hospital radiologist. Therefore, his negligent acts were committed in the course of employment.

(iv) Damages

Lastly, in awarding compensation under Section 8 of the Civil Law Act 1956, the court distinguished between causing death and causing injury. It found the Deceased’s death was due to his underlying cancer, not the Appellant’s negligence. However, the negligence directly caused significant pain, suffering, and additional medical burdens. The High Court awarded the following damages: a. General Damages: Awarded RM800,000 for the pain and suffering endured by the deceased (who went from an active life to being bedridden) and the Respondent (who provided full-time care). b. Aggravated Damages: Awarded RM500,000 specifically against the First Appellant. This punitive award was made due to his demonstrated lack of compassion, failure to show remorse, and "over smart attitude" during trial. S/N fbv1V8qaBUudy4jeldKRVg c. Special Damages: Allowed for specifically pleaded and documented expenses, excluding probate costs. d. Costs: Awarded RM250,000 to the Respondent payable by the First and Third Appellants; and RM30,000 to the Second Appellant payable by the Respondent.

Aggrieved by the decision of the learned High Court Judge, the Appellants filed the present appeal against the entirety of the damages award. They contend that the learned High Court Judge erred in law and fact by awarding damages that were manifestly excessive, unreasonable, and unsupported by evidence. The appeal memorandum raises four main issues: a. Whether the RM800,000.00 general damages award for pain and suffering is manifestly excessive. b. Whether the awards for special damages (medical and travel expenses in Malaysia and Singapore) were erroneous due to lack of proof and because the treatments were elective. c. Whether the award of RM500,000.00 in aggravated damages was unjustified. d. Whether the costs award of RM250,000.00 is excessive.

We will proceed to consider the main issues in this appeal.

General Damages for Pain and Suffering (RM 800,000.00)

The Appellants contend that the award of RM800,000.00 as general damages is wholly disproportionate and must be significantly S/N fbv1V8qaBUudy4jeldKRVg reduced. The Appellants argue that the Deceased’s death was certified as due to a "cancer neuroendocrine tumour," a finding corroborated by the Respondent’s own testimony and explicitly affirmed by the learned Judge, who held that "the cause of death cannot be attributed to the negligence of the First Defendant".

According to the Appellants, the injury is a 4cm x 3cm full-thickness burn and is minor in the context of personal injury jurisprudence as it falls far below the 30% Total Body Surface Area threshold for severe burns. As per the Bar Council’s Compendium, the suggested range is between RM3,000 to RM45,000.

In support of this contention, the Appellants made reference to the case of Punniyamoothy a/l Perumal & Anor v. Mohd Syahir bin Azhar [2016] MLJU 1175, where RM40,000 was awarded for a 4% of Total Body Surface Area (TBSA).

Moreover, it was argued by the Appellants that the Deceased’s pre-existing Type 2 Diabetes Mellitus and prior radiotherapy history significantly impaired his wound-healing capacity. This is a fact acknowledged by the Respondent’s own expert witness. The period of suffering directly attributable to the Appellants’ alleged negligence, it was argued, is confined to less than one month from the RFA procedure on 21 December 2017 until the deceased ceased follow-up at HKL on 17 January 2018. Any subsequent pain and suffering resulted from the Deceased’s own election to seek treatment at private hospitals in Malaysia and Singapore. S/N fbv1V8qaBUudy4jeldKRVg

Hence, based on these facts, the Appellants submitted that an award of RM800,000.00 for a minor burn injury sustained over such a brief period by a patient who succumbed to an unrelated terminal condition is a wholly erroneous estimate. Instead, the Appellants submitted that a fair and compensatory award, considering all circumstances, would be in the region of RM150,000.00.

In response to the Appellants arguments, the Respondent argued that the Appellants’ attempt to confine compensable pain and suffering to the period of treatment at IKN and HKL. The Respondent argues that the chain of causation originated from the First Appellant’s negligence, namely, causing a severe burn injury and failing to ablate the primary mediastinal neuroendocrine tumor, which compelled the Deceased to seek subsequent, life-saving treatments at private institutions in Malaysia and Singapore (KPJ, CVS, Novena, Mount Elizabeth). Consequently, the Respondent submitted that the associated pain and suffering from these necessary treatments are recoverable.

The Respondent refutes the Appellants’ argument that the Deceased's Type 2 diabetes mellitus and prior radiotherapy contributed to prolonged recovery. The Appellants provided no direct evidence linking these conditions to the burn injury's complications. Their expert witnesses, Dr. Fong Chin Heng and Dr. Hazliza Binti Md Shahir, conceded under cross-examination that their opinions on this point were assumptions without specific documentary support for this patient. S/N fbv1V8qaBUudy4jeldKRVg

In this regard, the Respondent invokes the "eggshell skull" principle, asserting that a negligent defendant must take the victim as found. As the First Appellant was aware of the Deceased's diabetes and radiotherapy history, the Appellants thus cannot now rely on these conditions to reduce liability (See: Azizi bin Amran v Hizzam bin Che Hassan [2006] 4 MLJ 555, Thirukumaran a/l Shanmugam v Nyana Prakash a/l Sepiah [2023] MLJU 1014, and Dr Jerilee Marian Khong & Ors v Yusnita Bt Johari [2025] MLJU 2274).

Pertaining to the Appellants’ proposed reduction of general damages to RM150,000 (RM50,000 for burn injury, RM100,000 for pain and suffering), the Respondent contended this is based on an overly simplistic assessment ignoring the injury's severity. It was argued that the burn sustained by the Deceased was a "full thickness" injury (4x3cm) that destroyed skin, fat, muscle, and extended to the sternum.

Moreover, the Respondent submitted that the Appellants’ reliance on comparative cases (Punniyamoothy, Sugumaran, Kee Thuan Hin, Nirmala Bonat) is misplaced, as those involved less severe burns such as friction or deep dermal burns not comparable to the Deceased's full-thickness burn leading to extensive tissue and organ loss, multiple surgeries, infections, VAC therapy, and permanent disfigurement. The Respondent contends no valid basis exists to disturb the High Court's award.

Hence, the Respondent submitted that the High Court award of RM800,000.00 in general damages is not excessive but modest. This amount is justified by the severity of the injury, a full-thickness burn S/N fbv1V8qaBUudy4jeldKRVg destroying tissue down to the sternum, causing excruciating pain, which is far more severe than the superficial burns cited by the Appellants.

In awarding general damages, the learned High Court Judge had at paragraph [76] of His Lordship’s Grounds of Judgement, stated the following: “76. For general damages the Court allows a sum of RM800,000.00 to both the deceased and the Plaintiff for the pain and suffering.”.

In relation to general damages, the principles in awarding general damages can be ascertained from case law authorities. In this regard, we are guided by the case of Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292 where the His Lordship Raja Azlan Shah stated: “It must be remembered that the purpose of damages is to try, so far as humanly possible, to put the victim back to the position he would have been in before the accident. The damages must be fair, adequate and not excessive”

General damages are intended to compensate for the human and personal consequences of injury rather than quantifiable financial loss. They recognise the real impact of harm on an individual’s physical comfort, emotional wellbeing, and overall quality of life. Such damages are awarded for non-pecuniary losses that arise naturally from the injury, even where they cannot be proven by invoices, receipts, or other documentary evidence. S/N fbv1V8qaBUudy4jeldKRVg

General damages commonly encompass pain and suffering, loss of the amenities of life, referring to the inability to enjoy normal activities, hobbies, or aspects of daily living that were previously part of the claimant’s life, emotional distress and psychological harm, including anxiety, depression, trauma, or other mental and emotional consequences flowing from the injury; and the value of care and assistance reasonably provided by family members, acknowledging the support, time, and effort contributed by loved ones to meet the claimant’s needs as a direct consequence of the injury. General damages aim to provide fair and reasonable compensation for the non-financial burdens imposed by injury, recognising that such losses, though intangible, are often profound and enduring.

The court in awarding the damages, determines the appropriate quantum of general damages by undertaking a holistic assessment of all the evidence before it. This includes contemporaneous medical records, expert opinions, oral testimony, and comparative guidance drawn from awards made in analogous cases. The exercise is not a matter of applying a rigid or mathematical formula. Rather, it is a principled and fact-sensitive evaluation aimed at capturing the real impact of the injury on the patient’s life, including the nature and extent of the harm suffered, its consequences over time, and the degree to which the injury has altered the patient’s physical condition, emotional well-being, and day-to-day functioning.

It cannot be denied that the Deceased suffered excruciating pain as a result of the severe burn injury. It was a full-thickness burn that caused excruciating pain, assessed at 9 out of 10 on the pain scale. The injury resulted in an open wound that could not be closed at HKL, S/N fbv1V8qaBUudy4jeldKRVg and it was not the type of burn that could be readily treated or resolved through simple skin grafting.

The burn injury the Deceased suffered as a result of the First Appellant’s negligence was extremely severe, destroying the skin, fat, and muscle down to the bone or sternum, and its seriousness was underscored by evidence emphasising the critical importance of wound depth in assessing the injury.

Due to the burn injury, the Deceased was required to undergo debridement and dressing of the wound. This procedure added to the pain and suffering faced by the Deceased. Moreover, the Deceased withstood the debridement of necrotic skin and tissue and dressing of the deep wound for no less than 5 times.

Other treatments, among others, the Deceased underwent the intravenous antibiotic treatment for 7 days at CVS beginning from 19 January 2018, VAC therapy at Novena in February 2018, intravenous antibiotic treatment for 42 days at CVS and at home beginning from March 2018 and an eight-hour major surgery on 9 May 2018, during which extensive infected and damaged tissues, had to be surgically removed due to the severe burn injury and resulting infection.

We find that the Deceased had to endure pain and suffering as a result of the RFA procedure undertaken by the First Appellant. This is evident from the evidence before this court as summarized in the preceding paragraphs. We find the amount awarded by the learned High Court Judge not to be excessive, and therefore we dismiss the appeal by the Appellants. Pertaining to the cross-appeal by the S/N fbv1V8qaBUudy4jeldKRVg Respondent, we find the award for general damages by the learned High Court Judge to be reasonable. We dismiss the cross-appeal of the Respondent. The award of the High Court is affirmed.

(ii) Special Damages (Medical and Travel Expenses - RM58,760.17 and SGD196,597.79)

The Appellants submit that the awards for special damages, totalling RM58,760.17 and SGD196,597.79 for expenses in Malaysia and Singapore respectively, must be set aside. The fundamental principle governing special damages is that they must be specifically pleaded and strictly proved. More critically, a plaintiff cannot recover costs for losses voluntarily incurred outside the chain of causation. The Appellants contend that the Respondent failed to discharge her legal burden of proving that the claimed expenses were reasonable, necessary, and a direct consequence of the Appellants’ negligence.

According to the Appellants, the decisive factor is that the Deceased and the Respondent had consciously chosen to abandon the treatment plan at HKL—where the Second Appellant was found not to be negligent—and instead sought extensive private treatment. This constituted a novus actus interveniens.

At the High Court, evidence from both parties’ experts was unanimous in that all treatments subsequently received in Singapore were available within Malaysia. Moreover, a significant portion of the Singapore treatment was for the excision of the recurrent neuroendocrine tumour and subsequent reconstruction, procedures S/N fbv1V8qaBUudy4jeldKRVg aimed at the Deceased’s underlying terminal cancer rather than the burn injury itself.

Founded on this, the Appellants contended that the awards for medical and travel expenses to Malaysia and Singapore are unsustainable in law and fact. They were incurred by the voluntary choice of the Deceased/Respondent, for treatments that were available locally and which addressed conditions beyond the scope of the Appellants' liability. These awards must be vacated in their entirety.

The Respondent, on the other hand, asserts that the awards for special damages are correct and proven. The Respondent had provided invoices and receipts totalling the awarded sums, and the learned High Court Judge correctly exercised his discretion in accepting this evidence.

According to the Respondent, the argument that the Deceased "chose" expensive treatment is disingenuous. The necessity to seek treatment abroad was a direct consequence of the Appellants’ negligence. The First Appellant caused a horrific burn, and the Second Appellant at HKL failed to provide a viable treatment plan, telling the deceased "there was nothing further that could be done". It was argued that a life-preserving treatment when the primary hospital declares itself unable to help. Furthermore, the inclusion of costs for the NET resection in Singapore is proper. S/N fbv1V8qaBUudy4jeldKRVg

The Respondent argued that IKN could not treat the burn and referred the Deceased to HKL. At HKL, the Second Appellant’s evidence confirmed that wound healing required resection of the residual tumor and necrotic tissue, but the thoracic surgeon deemed the tumor unresectable and the surgery prohibitively high-risk.

Faced with an open, gaping chest wound for 27 days and no viable closure plan from HKL, the Deceased acted out of urgent necessity. Subsequent consultations and treatments—including intravenous antibiotics, VAC therapy, and ultimately two major surgeries in Singapore—were neither advised nor available at HKL. (See: Sheela Christina Nair v Regency Specialist Hospital Sdn Bhd & Ors [2016] MLJU 1899 and Gurisha Tranjeet Kaur v Dr Premitha Damodaran & Anor [2020] 9 MLJ 409).

The Respondent insists that the resection of the NET in Singapore was directly necessitated by the First Appellant’s failure to ablate it during the initial RFA. This procedure was integral to addressing the life-threatening complication (tumour compression on the heart) and was part of the necessary remedial treatment for the consequences of the negligence

Therefore, the Respondent submits that the entire purpose of the initial planned cryoablation was to debulk the tumour for future resection. The First Appellant’s negligent RFA both failed to ablate that NET and caused the burn injury. The subsequent surgery in Singapore, therefore, efficiently addressed both consequences of the Appellants’ negligence in one necessary procedure. S/N fbv1V8qaBUudy4jeldKRVg

It is trite for a claim in special damages, such claims must be accompanied by invoices and receipts in order to prove the amount expended by the patient. This, in turn will allow the trial judge to allow the claim for special damages based on the invoices and receipt produced before the High Court Judge. In this way, it could be argued that the learned High Court Judge has correctly allowed the Respondent’s claim for special damages based on the invoices and receipts produced before the court. As a consequence, the Appellants’ appeal on special damages would appear to be unsustainable.

Nonetheless, in this appeal, the facts before us are that the claim for special damages at a private hospital in Kuala Lumpur and subsequently in Singapore was at the behest of the Deceased and the Respondent. The issue before this court therefore, is whether special damages can be awarded when the patient, on his or her own accord, decided to seek treatment elsewhere. In this appeal, the undisputed facts are that the Deceased and the Respondent had opted not to proceed with the course of treatment at HKL. It is not in dispute that the Deceased did not attend his follow up appointment at HKL and that the Second Appellant and the team at HKL were not informed of the Deceased’s decision not to continue treatment at

In this regard, the Appellant contended that the treatment the Deceased received in Singapore is available in Malaysia. This is apparent from the consistent statements taken from the expert witnesses, SP2, Dr. Oomen George (RR pg. 313, Volume 1); the S/N fbv1V8qaBUudy4jeldKRVg Respondent’s Expert Report SD3 and SD5 (RR, Pg. 2002, Volume 2I) during the trial at the High Court.

Having so decided to seek treatment at CVS and KPJ in Malaysia and Novena and Mount Elizabeth hospitals in Singapore, the Respondent then sought special damages from the Appellants for the expenses incurred for the treatments obtained at these private hospitals including travel expenses.

In considering whether or not the Respondent is allowed to seek special damages for the medical treatment received at CVS, KPJ and Mount Elizabeth Medical Centre (Singapore), we are guided by the case of Chai Yee Chong v Lew Thai [2004] 2 MLJ 465 as follows: “[108] No one can question a person’s right to spend money as he pleases to repair an injury done to him by another, but when it comes to claiming from the other the expenses incurred, what is permissible is only what is reasonable in the circumstances. The judge in that case, relying on the right, overlooked the principle of reasonableness and did not consider the question of reasonableness. That is why I say that the decision was reached on the wrong principle. [109] I ought to mention that the judge had earlier said (p 417 c) that as regards the medical expenses there were two issues before the court: ‘(a) whether the plaintiff is entitled to medical treatment in a private hospital; and (b) if he is entitled, can he be treated in a hospital in Singapore’. It is to be observed that even the manner in which the issues were framed was apt to produce a decision on a wrong principle. The S/N fbv1V8qaBUudy4jeldKRVg decision that I have set out was the decision on the first issue. As the issue was framed, of course the answer would be in the affirmative. A person is indeed entitled to treatment in a private hospital. The issues should have been framed: ‘(a) whether in the circumstances it was reasonable for the plaintiff to seek treatment in a private hospital; and (b) if it was reasonable, whether it was reasonable for the plaintiff to seek treatment in a private hospital in Singapore’ [110] Since the decision as to treatment in a private hospital proceeded on the wrong principle and for that reason cannot stand, it follows that the decision on the second question as to treatment in a private hospital in Singapore also cannot stand even though the judge relied on an additional factor to justify the claim for the medical expenses in Singapore. He said that even though he was unable to confirm whether the quality of medical treatment in Singapore was better than that in Johor, he was of opinion that it would not be unreasonable for a person injured in Johor in a road accident to seek medical treatment in Singapore, and the reason he gave was the proximity and linkage of Johor to Singapore, so that a private hospital in Singapore should be treated like any other private hospital in Malaysia. [111] Now, where it has arisen, the question of the reasonableness of seeking or receiving treatment in a private hospital has arisen as a contrast to seeking or receiving medical treatment in a government hospital, and it has so arisen on the basis of the commonly-known or assumed fact that, thus far, treatment in a government hospital is either free or far cheaper than treatment in any private hospital without the quality of treatment, generally speaking, being inferior to that in a private S/N fbv1V8qaBUudy4jeldKRVg hospital. The question of seeking medical treatment in a private hospital in Singapore arose, where it has arisen, on the basis of the widely-known fact or widely-held belief that medical treatment in a private hospital in Singapore has so far been significantly more expensive than in Malaysia. In Chong Kam Siong it must have been on that basis that the question of reasonableness of seeking treatment in a private hospital in Singapore, as opposed to a private hospital in Johor or elsewhere in Malaysia, arose. The judge, in my view, was wrong when, in deciding that it was reasonable to seek medical treatment in Singapore, he relied on the consideration of proximity and linkage and entirely overlooked the obvious economic consideration of expense.”

Additionally, the Court of Appeal in the case of Chai Yee Chong (Supra), has addressed the two-stage test of justification and reasonableness for claiming private medical expenses as damages. This was referred by both parties as follows: “[59] To summarize my view on the issue, every person has a right to seek medical treatment at a hospital of his choice be it at a government hospital or at a private hospital. But, when it comes to awarding damages for such treatment, if the treatment is sought at a government hospital, the full amount expended and paid by the person should be awarded. But, if he seeks treatment at a private hospital, he has to prove, first that he is justified to seek treatment at a private hospital and, secondly, the amount incurred is reasonable. Regarding the first hurdle that he has to cross: S/N fbv1V8qaBUudy4jeldKRVg

He must prove that that particular treatment is not available at the government hospital either due to the unavailability of the necessary equipment or qualified doctors or other sufficient reasons; or

He must prove that though the treatment is available at a general hospital, it is not available within a reasonable period considering the urgency of the treatment. This may be due to the congestion at the government hospital or for other sufficient reasons; or

He must prove that that the treatment at the government hospital though available, is grossly inadequate. This may be due to lack of trained doctors in that particular field or for some other good reasons. As pointed out by Kamalanathan Ratnam JC in Chong Chee Kong with whom I agree, we are concerned with treatment, not accommodation. [60] If the court is not satisfied that the plaintiff is justified to seek treatment at a private hospital then, depending on the facts and the circumstances of each case, the court should either dismiss the claim altogether as was done by the Supreme Court in Pengarah Institut Perubatan & Anor and by this court in Hj Ariffin Hj Ismail or award an amount not exceeding one-third of the expenses as was done by the Supreme Court in Tang Sia Bak. It must be noted that the one third is nowhere fixed by any written law. It is a matter of practice. If it is shown that in a particular case, even one third is excessive, considering the expenses that otherwise would have been incurred in a government hospital, an amount less than one-third may be awarded. S/N fbv1V8qaBUudy4jeldKRVg [61] Now, assuming that the plaintiff has crossed the first hurdle and the court is satisfied that the plaintiff is justified in seeking medical treatment at a private hospital, the plaintiff must prove that the expenses incurred and the amount claimed is reasonable taking into consideration normal charges at other local private hospitals. The court may award what it considers to be a reasonable amount which may even be the full amount claimed. … [67] During his stay at the Ipoh General Hospital of 73 days, no operation was done to his leg. Instead, he was discharged to follow up weekly at the clinic only for wound inspection. [68] So, there is ample evidence that he was justified in seeking further treatment at the Fatimah Hospital after his discharge from the General Hospital. Regarding the amount, it was agreed by both parties. In the circumstances, had liability been found in the respondent’s favour, he should have been awarded the full amount of RM15,028 for medical expenses. (emphasis added)”

In this regard, we are guided by the principles established in Chai Yee Chong (Supra) that provide for the definitive legal framework for assessing the recoverability of private medical expenses. The first hurdle requires the Respondent to prove justification for eschewing government hospital care. The grounds are conjunctive: unavailability, unreasonable delay, or gross inadequacy of treatment at a government facility.

On the facts of the present appeal, after the negligence occurred at IKN, the Deceased was referred to HKL. There, the Second S/N fbv1V8qaBUudy4jeldKRVg Appellant's team concluded the necessary surgery carried a "VERY HIGH risk of morbidity and mortality" and deemed the tumor "unresectable." This effectively constituted a declaration that HKL, the premier public hospital, could not offer a viable, actionable treatment plan to close the life-threatening wound. In this context, the government hospital's treatment could be viewed as "grossly inadequate" for the emergency at hand, thereby justifying the search for an alternative.

In our view, even if justification for some private treatment is found, the Respondent must also prove the reasonableness of the amount, particularly for overseas care. Chai Yee Chong (Supra) is explicit that is, for treatment at a private hospital abroad (Singapore), the plaintiff must prove the treatment was not available locally in private hospitals, or that local private care was inadequate.

The evidence, as highlighted by the Appellants, indicates that expert witnesses agreed the treatments received in Singapore were available in Malaysia. The Respondent has the burden to prove the contrary that the specific, complex reconstructive surgery was unavailable locally within a reasonable time.

We have considered the arguments put forth by both the Appellants and the Respondent on the claim for special damages. We find no rationale or justification for the Deceased to seek treatment at CVS, KPJ and subsequently at Mount Elizabeth Medical Centre particularly when the same treatment is available in Malaysia. The fact that the treatment is available in Malaysia and that there are medical specialists and consultants to conduct the treatment is not in dispute. S/N fbv1V8qaBUudy4jeldKRVg Hence, for this reason we find it incomprehensible that the Appellants are required to reimburse the Respondent wholly by way of special damages for expenses incurred by the Deceased and the Respondent on their own volition.

It was argued by the Respondent that the treatment sought by the Deceased at KPJ and Mount Elizabeth Hospital was necessitated due to the negligence of the First Appellant which resulted in the burn injury to the Deceased’s chest. In order to treat this wound and the Deceased’s NET, the Deceased and the Respondent made the decision to seek medical treatment at CVS, KPJ and Mount Elizabeth Medical Centre.

It is not in dispute that the RFA treatment by the First Appellant had eventually led to a burn injury in the chest of the Deceased. However, the learned High Court Judge found that the First Appellant had not breached his duty of care in using the RFA Procedure. This is seen in paragraphs 39 to 41 of the learned High Court Judge’s Grounds of Judgment, as reproduced below: “ 39. The 1st Defendant’s had a different view and opinion and after examining the deceased, had determined the RFA procedure to [be] more suitable. The Plaintiff’s expert in his testimony did not entirely disagree with the 1st Defendant’s opinion. The Plaintiff’s expert admitted that the RFA was a recognized method and in fact was gaining momentum as a procedure to ablate a tumour. In short the Plaintiff’s expert did not dismiss the 1st Defendant’s opinion outright. S/N fbv1V8qaBUudy4jeldKRVg

Differences in opinion amongst experts is normal in any field and this diverse views cannot be a basis to determine the negligence of the 1st Defendant. The Court ruled that the 1st Defendant did not breach his duty of care in using the RFA procedure.

Further the expert called by the Defendants Dr Fong Chin Heng confirmed that the RFA procedure conducted on the deceased had met its objectives in reducing the size of the tumour by 20 to 25%.”

It must be emphasized that the treatment the Deceased received in Singapore was not merely for the burn injury as a result of the RFA treatment conducted by the First Appellant but for the recurrent NET tumour too.

In allowing the claim for special damages at the private hospitals in Singapore, the learned High Court Judge had allowed the claim for treatment of the Deceased’s recurrent NET tumour. The recurrent NET tumour, in our view, was already present when the Deceased sought medical treatment at IKN which resulted in the First Appellant conducting the RFA procedure on the Deceased.

It cannot be over emphasized that the expert witnesses of the Appellant and the Respondent were unanimous that the treatment the Deceased received in Singapore were available here in Malaysia. Moreover, the decision to not attend the follow up appointment at HKL with the Second Appellant was the Deceased’s and Respondent’s own. Having decided to seek medical treatment elsewhere, for S/N fbv1V8qaBUudy4jeldKRVg whatever reason, the Deceased and the Respondent cannot now expect the Appellant to pay for a decision they made on their own without consulting or even informing the Appellants.

The case of Chai Yee Chong (Supra) acknowledges that even where a plaintiff's actions in seeking private care are not fully justified, it may be unfair to deny all recovery. The court established the practice of awarding "an amount not exceeding one-third of the expenses." This is not a rigid rule but a discretionary tool to achieve fairness where the plaintiff's conduct is partly reasonable. Given the mixed facts of this present appeal, that is the HKL's inability to provide a safe solution versus the Respondent's failure to exhaust local private options, the case is a prime candidate for this moderated approach. The court could find that seeking private treatment was partially justified by the negligence of the First Appellant but unreasonable in opting for the most expensive overseas option without proof of local unavailability. We also took into account that in allowing the special damages the learned High Court Judge had allowed the claim for treatment of the Deceased’s recurrent NET tumour.

For the abovementioned reasons we partly allow the Appellants’ appeal for special damages and award a portion of one-third of the private treatment costs in Malaysia and one-third of the treatment costs in Singapore. This resulted in total of RM19,586.72 for the treatment cost in Malaysia and SGD 65,532.60 for the treatment cost in Singapore. S/N fbv1V8qaBUudy4jeldKRVg

(iii) Aggravated Damages (RM500,000.00)

Regarding the third issue, the Appellants submit that the award of RM500,000.00 in aggravated damages is unprecedented and erroneous in a medical negligence case against government medical officers. Aggravated damages are compensatory in nature, awarded for intangible injury to a plaintiff’s dignity exacerbated by "high-handed, malicious, insulting or oppressive conduct" by the Appellant, as established in Thompson v Commissioner of Police [1997] 2 All ER 762. The Appellants contend there is a complete absence of such conduct in this case. The learned Judge’s own findings indicate that the First Appellant volunteered to perform a difficult procedure for a patient other doctors were reluctant to treat, an act of professional dedication, not malice.

Therefore, the Appellants submit that there are no grounds exist to support an award for aggravated damages. The conduct of the Appellants was at all times within the bounds of professional medical practice, albeit found to be negligent in standard. The Appellants argued this award constitutes a clear error in principle and prayed for this award to be set aside.

In reply, the Respondent strenuously opposed the Appellants’ characterisation of the First Appellant’s conduct as "noble”. The Respondent points to unchallenged evidence of callous and dishonest conduct such as causing the injury, failing to fully report on the procedure, misleading the family about the tumour's ablation, showing apathy towards the severe wound, and failing to find a solution to the problem he created. S/N fbv1V8qaBUudy4jeldKRVg

This conduct, the Respondent argued, meets the threshold for aggravated damages as compensatory for the injury's aggravation, contrary to the High Court's characterisation of such damages as punitive (See: Dr Chandran Gnanappah v Gan See Joe [2025] CLJU 1144, Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma Karam Chand [2025] CLJU 2571, and Lee Kok Chian v Cheok Lam Chuan [2025] CLJU 1818).

The learned High Court Judge allowed aggravated damages amounting to RM 500,000.00 on the basis that it is a punishment for the First Appellant who, in the words of the learned High Court Judge “showed no compassion even after being notified of the horrific burns suffered by the deceased.” The learned High Court Judge at paragraph 77 of His Lordship’s Grounds of Judgement went on to state: “…The 1st Defendant also took a lackadaisical attitude in responding to the distress of the Plaintiff and the deceased. Even while testifying in court the 1st defendant did not show any remorse for the pain and suffering he had cause and instead showed an over smart attitude in answering questions posed by the counsels.”

Pertaining to aggravated damages, the legal principles was established in the case of Rookes v. Barnard [1964] AC 1129, [1964] AC 1129, [1964] 1 All ER 367, [1964] 2 WLR 269, [1964] 1 Lloyd's Rep 28, where Lord Devlin held that aggravated damages may be awarded when the manner in which the wrong was committed S/N fbv1V8qaBUudy4jeldKRVg resulted in injury to the plaintiff’s dignity, self-respect, or emotional well-being. The relevant passage is reproduced below: “Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride.”

In the Court of Appeal case of Dr. Chandran Gnanappah v. Gan See Joe (Suing As The Administrator Of The Estate Of Gan Hong Wee, Deceased) And Anor [2025] CLJU 1144, [2025] AMEJ 1196, Wong Kian Kheong JCA had condensed the principles pertaining to aggravated damages in professional negligence cases. His Lordship said: “N(3). Aggravated damages (RM350,000.00)

Firstly, in Dr. Hari Krishnan, at [2(ii)], [98] and [99], our Federal Court has recognized that the court may grant aggravated damages in professional medical negligence cases: "[2] Appeal No 02(f)-21-03 of 2015 ('the doctors' appeal') was filed by Dr Hari and Dr Namazie. In the doctors' appeal, this court granted leave for the following two questions: ... S/N fbv1V8qaBUudy4jeldKRVg

(ii) Whether aggravating factors should be compensated for as general damages, therefore rendering a separate award of aggravated damages unnecessary, as decided by the English Court of Appeal in Richardson v. Howie [2004] EWCA Civ 1127 and explained in Michael Jones' Medical Negligence (4th Ed, 2008), para 12-011. ... [98] Aggravated damages have in fact been awarded as a separate head of damages by Malaysian courts. In the recent decision of this court in Mohd Ridzwan bin Abdul Razak v. Asmah bt Hj Mohd Nor [2016] 6 CLJ 346; [2016] 4 MLJ 282, the High Court's award of aggravated damages was upheld.... [99] It can be seen from the above cases that aggravated damages can be and have been awarded as a separate head of damage in tort. For example, aggravated damages are frequently awarded in defamation cases for injury to a person's reputation. There is no reason to exclude this kind of damages from medical negligence cases, which involve real injury to a person's body. In the circumstances, we answer the second question in the negative. As such, the doctors' appeal on quantum is dismissed." (emphasis added).

Secondly, contrary to Mr. Felix Raj's submission, aggravated damages are to be distinguished from exemplary damages. Such a distinction had been explained by Zawawi Salleh JCA (as he then S/N fbv1V8qaBUudy4jeldKRVg was) in the Court of Appeal case of Sambaga Valli a/p KR Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors and another appeal [2017] CLJU 500; [2018] 1 MLJ 784, at [32] and [33] as follows: "[32] Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant. [33] The exemplary damages or punitive damages - the two terms now regarded as interchangeable - are additional damages awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant's tortious act, and to punish the defendant. Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a "contumelious disregard" for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may also have an important function in vindicating the rights of the plaintiff. (See Rookes v. Barnard [1964] 1 All E R 347; A B v. Southwest Water Services [1993] All E R 609 Broome v. Cassell & Co [1971] 2 Q B 354, Laksamana Realty Sdn. Bhd. v. Goh Eng Hwa and Another Appeal [2006] 1 MLJ 675)" (emphasis added). S/N fbv1V8qaBUudy4jeldKRVg Furthermore, according to s. 8(2)(a) CLA, exemplary damages cannot be claimed in an Estate/Dependency suit. There is however nothing in ss. 7 and 8 CLA which prevents the court from awarding aggravated damages in an Estate/Dependency suit.

Thirdly, with regard to the question of whether there should be any proportionality between the amounts of general damages and aggravated damages, the following judgment in Sambaga Valli, at [40] and [41], is relevant: "[40] So too in [UK]. In Thompson v. Commissioner of Police of Metropolis [1997] 2 All ER 782, Lord Woolf observed:- "...We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravate damages because the circumstances will vary from case to case. In the ordinary way, however, we should not expect the aggravated damages to be as such as twice the basic damage except perhaps where, on the particular facts, the basic damage are modest". [41] In the same vein, the Singapore Court of Appeal in Koh Sin Chong Freddie v. Chan Cheng Wah Enterprise [2012] 4 SLR 129 stated at page 652 - ... we are nonetheless of the view that there should be some semblance of proportionality between the quantum of damages and aggravated damages awarded..."; and... Aggravated damages are meant to compensate for the S/N fbv1V8qaBUudy4jeldKRVg aggravation of the injury; they are not an arbitrary top-up unrelated to the desire of the court to compensate the plaintiff for the aggravation (emphasis added).

We express the following view regarding the court's discretionary power to award aggravated damages:

firstly, the court can only exercise its discretion to grant aggravated damages when a defendant has been guilty of malicious, contumelious, offensive, outrageous and/or "exceptional" behavior or conduct which had caused distress, anguish, misery, hurt and/or injury to the feelings of the plaintiff (Aggravating Circumstances);

even though an award of aggravated damages is a form of compensation to a plaintiff, in view of the requirement for the plaintiff to prove the existence of Aggravating Circumstances (so as to claim aggravated damages), the court should consider an award of aggravated damages separately from the court's assessment of special and general damages - please refer to Dr. Hari Krishnan, at [99];

if the court is satisfied of the existence of Aggravating Circumstances, the court will then exercise its discretion to assess a just, appropriate and reasonable sum of aggravated damages [Quantum (Aggravated Damages) ]. In deciding the Quantum (Aggravated Damages), the court should take into account the following factors (which are not exhaustive) - S/N fbv1V8qaBUudy4jeldKRVg

the nature and prevalence of the Aggravating

the nature and extent of the distress, anguish, misery, hurt and/or injury to the feelings of the plaintiff;

the court should ensure that a plaintiff is not unjustly enriched or overcompensated by the Quantum (Aggravated Damages) and at the same time, the court should prevent a defendant from being financially ruined in an unjust manner (2 Considerations) - please refer to Motordata Research Consortium Sdn Bhd v. Ahmad Shahril bin Abdullah & Ors [2017] CLJU 1142; [2017] 7 AMR 560, at [75(2)]. These 2 Considerations are more important than any mathematical comparison between the quantum of aggravated damages and the total sum of general damages (as contended by the 1st Defendant); and

if the Quantum (Aggravated Damages) -

exceeds the total amount of general and special damages [Total Sum (General/Special Damages) ]; or

(ii) constitutes a high percentage of the Total Sum (General/Special Damages) - the court should give reasons for the Quantum (Aggravated Damages). Only by giving reasons for the Quantum (Aggravated S/N fbv1V8qaBUudy4jeldKRVg Damages), can the court be said to have exercised its discretion judicially in the assessment of the Quantum (Aggravated Damages); and

from the viewpoint of the stare decisis doctrine, the Quantum (Aggravated Damages) decided in a particular case, is an exercise of the court's discretion based on the particular facts of the case. Hence, cases regarding the Quantum (Aggravated Damages) do not constitute binding legal precedents.”

As elucidated above, an award of aggravated damages can be considered separately from the court's assessment of special and general damages. However, there is no mathematical formula in determining the amount to be awarded for aggravated damages, suffice to say, the amount of award will depend on the facts of each case, which will vary.

Moreover, it must be stated that from the perspective of the doctrine of stare decisis, the quantum of aggravated damages awarded in any given case represents an exercise of judicial discretion grounded in the specific facts of that case. Consequently, decisions concerning the quantum of aggravated damages do not constitute binding legal precedents.

In determining whether aggravated damages should be allowed, the court will consider the character and degree of the aggravating circumstances; the nature and severity of the distress, anguish, suffering, hurt, and/or injury to the plaintiff’s feelings; and the need for the court to strike a fair balance by ensuring that the S/N fbv1V8qaBUudy4jeldKRVg plaintiff is not unjustly enriched or overcompensated by the quantum of aggravated damages, while simultaneously guarding against the defendant being subjected to unjust financial ruin.

However, before the court exercises its discretion to grant aggravated damages decides on the quantum of the aggravated damages, the first step is that a court must decide is the defendant has been guilty of malicious, contumelious, offensive, outrageous and/or "exceptional" behavior or conduct which had caused distress, anguish, misery, hurt and/or injury to the feelings of the plaintiff (Aggravating Circumstances).

The learned High Court Judge in awarding aggravated damages, had at paragraph 77 of His Lordship’s Grounds of Judgment stated the following: “[77]…The aggravated damages is awarded as a punishment to the 1st Defendant who showed no compassion even after being notified of the horrific burns suffered by the deceased. The 1st Defendant also took a lackadaisical attitude in responding to the distress of the Plaintiff and the deceased. Even while testifying in court the 1st Defendant did not show any remorse for the pain and suffering he had caused and instead showed an over smart attitude in answering questions posed by the counsels.”

It is clear from the paragraph reproduced above that the learned High Court Judge had awarded aggravated damages to the Respondent as a punishment for the First Appellant. The learned High Court Judge then went on to describe the attitude and disposition of the S/N fbv1V8qaBUudy4jeldKRVg First Defendant to justify the punishment of the First Defendant by way of aggravated damages.

With respect, we disagree with the learned High Court Judge to the extent that aggravated damages are awarded as a “punishment” to the First Appellant. Aggravated damages may be awarded where the court finds that the harm suffered by the patient was made worse, emotionally or psychologically, by the defendant’s conduct.

Cases have illustrated that aggravated damages are not awarded merely for the underlying medical negligence, but also for the manner in which the patient was treated as a person before, during, and after the harm occurred. The court will consider whether the defendant’s conduct exacerbated the injury or caused an additional layer of emotional or psychological distress. [See: Dato’ Stanley Isaacs v Government of Malaysia & Ors [2019] 8 MLJ 331; Loganathan a/l Thiagarajan v Dr Lee Mun Toong [2025] MLJU 922; and Nur Syarafina binti Sa’ari v Kerajaan Malaysia & Ors [2019] 9 CLJ 246]

Thus, based on the cases cited above, we will consider the conduct of the First Appellant in order to determine whether aggravated damages should be awarded to the Respondent.

It is not disputed that the First Appellant had departed from the recommendation of the TBMM of cryoablation treatment. The First Appellant had instead approached the Deceased and the Respondent suggesting the RFA procedure. In proposing the RFA procedure, the First Appellant had disregarded the recommendation of the TBMM. S/N fbv1V8qaBUudy4jeldKRVg

The decision of the TBMM to conduct a cryoablation was not made known to the Deceased and the Respondent. The fact that cryoablation was an available option to treat the Deceased’s condition was not disclosed to the Deceased and the Respondent. Instead, the First Appellant informed the Deceased and the Respondent that the RFA procedure was the treatment for the recurrent NET tumour. After the RFA procedure, the Deceased was left with a horrific burn and was in excruciating pain. While the Deceased’s pain was brought to the attention of the First Appellant, he did not find the Deceased’s condition an urgent one. Consequentially, the First Appellant did not visit the Deceased post RFA. The behavior and demeanour of the First Appellant, in our view, seems callous and unsympathetic.

Four days after his discharge from IKN, on the 26 December 2017, the Deceased went to HKL on the referral of the First Appellant for consultation of the burn wound on the Deceased’s chest.

Due to the burn injury as a result of the RFA procedure performed by the First Appellant, there was nothing more the Deceased could do to address the NET that recurred after repairing the burn injury caused by the First Appellant.

As a result of the horrific burn injury, the Deceased and the Respondent, as well as the other members of their family, were miserable and despondent. S/N fbv1V8qaBUudy4jeldKRVg

Grounded on the principles established by case law pertaining to aggravated damages, and applying the same to the facts of this case, we are of the considered view that the learned High Court Judge had not erred when His Lordship awarded aggravated damages to the Respondent. We find no reason to disturb the award of RM 500,000.00 for aggravated damages to the Respondent.

(iv) Costs (RM250,000.00)

On the issue of costs, the Appellants argue that the costs award of RM250,000.00 for an 8-day trial is manifestly excessive and does not represent a judicial exercise of discretion. The purpose of party-and-party costs is to indemnify, not to punish or provide full reimbursement, and such awards must be proportionate and necessary (See: Elisabeth Sugirthamalar Alfred v. Tan Jiu See [1997]

The Appellants highlight that the Respondent’s decision to engage a specialist from the United Kingdom was a luxury of her own choosing, not a necessity for the litigation, as a local expert could have been engaged at a fraction of the cost. Comparable cases involving trials on both liability and quantum have resulted in significantly lower costs awards, such as RM10,000 in Navin Sharma Karam Chand (menyaman sebagai suatu pentadbir harta pesaka Suman Rampal a/p Hardyal Rampal, si mati) & 1 lagi v Bukit Tinggi Hospital Sdn Bhd & 1 lagi [2023] 1 LNS 2099. Accordingly, the Appellants pray for the costs award to be reduced to a sum that is fair and proportionate to the litigation. S/N fbv1V8qaBUudy4jeldKRVg

The Respondent argued that the costs award is also justified. The trial was factually and technically complex, involving 8 trial days, 9 witnesses (including 4 experts), and necessitated the engagement of a UK-based expert. The engagement of senior counsel was reasonable given the stakes and complexity.

In determining an appropriate award of costs, the courts take into account a broad range of considerations. These include the complexity and gravity of the issues in dispute, the level of skill, time, and responsibility required of counsel in conducting the case, and the volume as well as the significance of the documents that had to be reviewed, prepared, or tendered in evidence. The courts also consider whether the matter necessitated the engagement of specialist or senior counsel, and the overall importance of the proceedings to the parties concerned.

In the context of medical negligence litigation, costs are frequently higher than those incurred in ordinary commercial disputes. This is attributable to the extensive medical records involved, the need to engage multiple expert witnesses, and the heightened evidentiary and procedural requirements that typically arise in such cases. The courts have recognised these inherent demands and, where appropriate, have been prepared to award higher costs to reflect the true nature and burden of the litigation. While the winning party is entitled to the costs of incurred expenses in pursuing a meritorious claim, such costs must be reasonable.

In this appeal, the trial went on for 8 days with three senior counsels and two junior counsels on the Respondent’s side. A total of nine S/N fbv1V8qaBUudy4jeldKRVg witnesses were called, out of which three were the Appellants’ expert witness while the Respondent had one expert witness who was engaged from the United Kingdom.

There were four expert reports detailing the technical and specialized issues pertaining to medical areas of oncology, interventional radiology, ablative treatments and wound management.

Learned Senior Federal Counsel for the Appellants submitted the case of Bukit Tinggi (Supra) where the costs awarded by the High Court Judge was RM10,000.00 and sought us to reduce the amount of costs awarded to the Respondent.

In the case of Bukit Tinggi (Supra), trial was over two days. On appeal, the Court of Appeal found the amount of RM 10,000.00 to be inadequate and increase the costs to RM75,000.00. The Court of Appeal viewed as fair and reasonable as trial costs payable to the Plaintiffs.

In this appeal, the trial proceeded for 8 days. If the case of Bukit Tinggi (Supra) is a guide, the costs of RM 250,000.00 for 8 days trial would be fair and reasonable. We are of the view that the costs awarded by the learned High Court Judge, taking into consideration the complexity of the case, the number of expert witnesses called, the number of days the trial took and the expertise from the United Kingdom, is reasonable. We therefore dismiss the Appellants appeal on costs. The award of the learned High Court Judge on costs is affirmed. S/N fbv1V8qaBUudy4jeldKRVg

In conclusion, we summarise our decision below: a. General Damages RM800,000.00 – the appeal of the Appellant and the cross-appeal of the Respondent are dismissed. The award of the learned High Court Judge is affirmed. b. Special Damages – RM19,586.72 for the treatment cost in Malaysia and SGD 65,532.60 for the treatment cost in Singapore. c. Aggravated Damages RM500,000.00 - the appeal of the Appellant and the cross-appeal of the Respondent are dismissed. The award of the learned High Court Judge is affirmed. d. Costs RM250,000.00 - the appeal of the Appellant is dismissed. The award of the learned High Court Judge is affirmed. e. Interest at the rate of 4% per annum on the special damages from the date of service of the Writ to the date of Judgment and at 5% per annum from the date of the Judgment to the date of full and final satisfaction; f. Interest at the rate of 5% per annum on the general damages from the date of Judgment to the date of full and final satisfaction.

The cost of this appeal is RM50,000.00 to be paid by the Appellants to the Respondent. S/N fbv1V8qaBUudy4jeldKRVg

A draft copy of this Judgment had been previously forwarded to Justice Supang Lian, JCA, and Justice Mohd Radzi Bin Harun, HCJ. Both my learned sister and brother had agreed with the Judgment. Dated: 30 January 2026 SGD (SHAHNAZ BINTI SULAIMAN) Judge Court of Appeal Malaysia Putrajaya For the Appellant : SFC Zetty Zurina Kamaruddin SFC Shazreen Nadia binti Zulkipli FC Barath a/l Manian (Attorney General's Chambers of Malaysia, Putrajaya) For the Respondent : Ambiga Screenevasan James Khong Janini Rajeswaran YC Chang (Messrs. James Khong) S/N fbv1V8qaBUudy4jeldKRVg