1. Dr. Abdul Aziz Bin Haji Yahya v Chandran A/L Nagappan (PA-12B-48-06/2018)

KERAJAAN MALAYSIA … RESPONDENTS CIVIL APPEAL NO: PA – 12B – 48 – 06/2018

KERAJAAN MALAYSIA … APPELLANTS 2 (suing as personal representative for LOGANATHAN A/L CHANDRAN, deceased) … RESPONDENT (In the matter of Sessions Court, Butterworth In the State of Penang, Malaysia. Summons No: PB – B53KP – 01 – 07/2017 (suing as personal representative for LOGANATHAN A/L CHANDRAN, deceased) … PLAINTIFF

KERAJAAN MALAYSIA … DEFENDANTS) JUDGMENT Introduction [1] The plaintiff is the father and personal representative of Loganathan a/l Chandran, the deceased. The deceased was 3 involved in a motor vehicle accident and was admitted to the Seberang Jaya Hospital. The deceased passed on allegedly as a result of negligence. The plaintiff commenced an action against the defendants for negligence in the treatment and care of the deceased and claimed for general damages, exemplary damages, aggravated damages and special damages. At the conclusion of the trial, the learned Sessions Court Judge made a finding of negligence against the 2nd and 3rd defendants. The learned Sessions Court Judge gave judgment in favour of the plaintiff but disallowed the plaintiff’s claim for general damages, aggravated damages and exemplary damages. The plaintiff’s claims for loss of support was also not allowed. [2] Both parties are not satisfied with the decision of the learned Sessions Court Judge. The plaintiff appeals against quantum and the defendants appeal against liability. In this judgment, the parties are referred to as they were at the lower court. 4 Brief facts [3] The deceased was involved in an alleged motor vehicle accident. On 02.07.2014 at about 9:30am, the deceased was brought by ambulance to the Emergency Unit of the Seberang Jaya Hospital. On preliminary examination, the deceased was diagnosed as suffering from —

open fracture of mid shaft left femur; and

closed comminute fracture of left tibia, and was treated with wound irrigation, antibiotics and tetanus toxoid injection. A dosage of 75mg of voltaren was administered and the Orthopaedic Medical Officer who was on the on-call duty was informed of the deceased’s condition. Directions were issued for the deceased to be admitted to ward. The deceased was admitted to ward on 03.07.2014 at 5:20am. Examinations at 9:00am revealed that the deceased’s vital signs were stable. 5 [4] The Specialist Consultant Orthopaedic, Mr. Nordin bin Ahmad (DW3), said that he discussed the deceased’s condition with the deceased and his family. The family of the deceased made a request for the deceased to be transferred to the Taiping Hospital. However, DW3 advised them against it and explained the risk that the deceased may develop “fat embolism syndrome” at the material time if the deceased were to be transferred. DW3 advised the deceased and his family that the deceased must first undergo a surgery to fix a plating of the left femur and an interlocking fix of the left tibia. DW3 also said that if however the family insisted on the transfer despite his advise, they will have to bear their own risk. For the purposes of the surgery, DW3 informed the deceased and his family that if they agree, payments for the implants must be made before the surgery is carried out. Later, at about 2:00pm, DW3 said that the family of the deceased agreed with the proposed plan for the surgery and agreed to make payment for the implants. They also agreed not to have the deceased transferred to the Taiping Hospital. 6 [5] At 2:00pm, the scheduled surgery was postponed because payments for the implants have not been received. At about 2:30pm, the deceased experienced an episode of shortness of breath (SOB) and he was managed with oxygen via the nasal prong. The deceased was then transferred to a room to loosen the patella tendon bearing (PTB) cast. At 3:00pm, the deceased was examined by Dr. Hwang Puoh Xieh (DW5). According to DW5, he found the deceased to be stable, alert and conscious. There were no signs suggestive of respiratory distress or fat embolism syndrome. Eventually at 4:10pm, the payments for the implants were received. [6] On 04.07.2014 at 12:00am, it was noted that the deceased became agitated and aggressive, moving his upper limbs restlessly. The deceased’s Glasgow Coma Scale was at 100/60 and his heart rate had accelerated. The deceased also had fever and there were signs of respiratory distress. The arterial blood gas (ABG) showed metabolic acidosis with respiratory distress. The clinical impression showed that the 7 deceased was suffering from complication of fat embolism syndrome. The deceased was then referred to elective intubation and care at the intensive care unit (ICU). At 3:45am, the deceased was incubated and transferred to ICU. At 6:40am, the deceased suffered cardiac arrest and cardiopulmonary resuscitation (CPR) as administered to revive him. The family members of the deceased were then briefed of the deceased’s condition and asked to sign the dead-in-line (DIL) form. At 8:00am the deceased was in critical condition. At 9:40am the deceased was in a systole condition and CPR was administered. At 11:50am, the deceased died. The post mortem revealed the cause of death as “fat embolism syndrome secondary to long bone fracture secondary to motor vehicle accident”. [7] The plaintiff as the father and personal representative of the deceased commenced an action against the defendants for negligence and claimed for the following reliefs: 8

general damages, exemplary damages and aggravated damages to be assessed;

loss of income for the deceased in the sum of RM2,000.00 per month commencing from 25.06.2013;

special damages in the sum of RM388,058.00;

interest;

cost; and

such other reliefs as the honourable Court deems fit. Decision of the trial court [8] The learned Sessions Court Judge found in favour of the plaintiff and but did not allow any general, exemplary damages or aggravated damages on the grounds that the plaintiff is not entitled to one by virtue of section 7 of the Civil Law Act 1957 because the plaintiff’s claim is a dependency claim. The learned 9 Sessions Court Judge also did not allow any claim for loss of support as the plaintiff had failed to prove it on the balance of probabilities. In finding liability against the defendants, the learned Sessions Court Judge’s findings may be summarized as follows:

that the family of the deceased made the payment for the implant on 03.07.2014 but the hospital did not proceed with the surgery on the deceased. The hospital had insisted on the payments to be made first and did not take any steps to proceed with the surgery even after the procedure had been earlier agreed upon;

that based on the clinical notes and the chronology of events during the admission of the deceased to the hospital, the deceased was left unattended on many occasions for many hours and there was no early and 10 immediate immobilization of the fracture site upon arrival of the deceased to the emergency ward;

that there were no steps taken to stabilize the factures other than the proposed treatment apparent in the clinical notes. Skin traction was not even initiated from the night of 02.07.2014 when the deceased was admitted until the next day;

that the deceased was not given due care and treatment as expeditiously as it should be;

all the doctors who attended the deceased were very much aware that there was a high risk that the deceased could develop fat embolism syndrome as can be seen from the clinical notes. Other than administering oxygen via nasal prong and the loosening up of the patella tendon bearing (PTB) cast, nothing was done to expedite the surgery to be carried 11 out on 03.07.2014 although the deceased had suffered an episode of shortness of breath. Had the deceased been closely monitored, he could have been saved from the complication of the fat embolism syndrome;

that between 12:00am and 3:45am on 04.07.2014, there was no record of any constructive treatment being done other than the intubation and the transfer to the ICU some 3 hours later;

that the risk of fat embolism syndrome can be significantly reduced by early immobilization of the fractures especially by means of an early corrective surgery. Although fat embolism syndrome could still occur even if the fractures were immobilized, the fact that the deceased’s injury was not expeditiously managed and to wait for the occurrence of another minor symptom is quite unnecessary because the deceased had experienced an episode of shortness of 12 breath. The doctors knew that the risk of fat embolism syndrome was real and they had to be vigilant about it;

that it defies the Hippocratic oath for treatment to be delayed on account of payments for the implant yet to be received and the defendants had unduly placed the importance of payment over treatment to the deceased;

that the manifestation of the fat embolism syndrome could have been overcome if the defendants had carried out the surgery; and

that the plaintiff had, on the balance of probabilities, proved the essential elements of the claim for negligence against the 2nd and 3rd defendants. 13 Brief deliberations Contention of the defendants [9] The learned Senior Federal Counsel argued that the learned Sessions Court Judge erred in her findings. In support of the appeal, the contention of the Senior Federal Counsel may be summarized as follows:

(a)

the learned Sessions Court Judge erred in law when she attributed liability on the part of the 2nd defendant because the 2nd defendant was only involved in the administration of the hospital and not of the care and treatment of deceased;

the learned Sessions Court Judge erred in law when she attributed liability to the 2nd and 3rd defendant 14 because there was no evidence to show that the 2nd defendant had provided medical treatment to the deceased;

there were delays in the treatment of the deceased which was occasioned by the delay in payment for the implant and the request from the family of the deceased to have the deceased transferred to the Taiping Hospital. These has caused a delay in the scheduled surgery of the deceased because when the payment was eventually made, there were other emergency cases which also require surgery and use of the operation theatre;

the implant was not available at the Seberang Jaya Hospital and it was only provided by the registered supplier; and 15

failure of the plaintiff to call the deceased’s brother is fatal because the plaintiff’s brother was the one who provided the consent for the deceased to be operated on. Contention of the plaintiff [10] The learned counsel for the plaintiff contends that the findings on liability made by the learned Sessions Court Judge has been correctly made but in respect of the issue on quantum, the learned counsel for the plaintiff concedes that there was no evidence to prove it. The contention of the learned counsel for the plaintiff in respect of liability may be summarized as follows:

that the 2nd and 3rd defendants are under a duty to provide proper and immediate medical treatment to the deceased taking into account the extent of injuries sustained by the deceased; 16

that based on the clinical notes and the evidence adduced by the defendants, the deceased was not given early immobilization of the fractures to prevent him from developing complications attributed to the fat embolism syndrome;

that there was a delay to stabilize the deceased from the injuries he suffered;

that the deceased went to a government hospital because he was needy. A patient should not be left untreated and deprived of the necessary medical attention and treatment just because some payment was not made;

that the defendants were negligent and failed to provide immediate medical attention and treatment to the deceased right from the onset and placed payments for the implants as a priority over treatment 17 of the deceased resulting in the demise of the deceased;

that the 2nd defendant should be vicariously liable for all the acts and omissions as well as the delay in providing the deceased with immediate medical attention and treatment;

that the defendants failed to display reasonable skills, care and management and failed to ensure the appropriate use of all required and crucial medical equipment. Analysis and decision [11] The basis of the allegation of negligence as pleaded by the plaintiff against the 1st defendant and that of vicarious liability of the 2nd and 3rd defendants can be seen from the statement of claim itself. In the statement of claim, the relevant 18 paragraphs whereby the plaintiff pleads the occurrence of liability of the respective defendants are as follows: “3. Defendan Pertama merupakan seorang pakar bedah dan juga pakar ortopedik yang bekerja di Hospital Seberang Jaya yang pada masa yang material bertanggungjawab untuk merawat dan membuat pembedahan ke atas si mati Loganathan A/L Chandran.

Defendan Kedua merupakan pengarah kepada sebuah hospital iaitu Hospital Seberang Jaya, Pulau Pinang yang pada masa yang material bertanggungjawab untuk mengawas dan menyelia semua pakar perubatan, pegawai perubatan dan kakitangan yang bertugas di Hospital Seberang Jaya termasuk Defendan Pertama dalam melaksanakan tugas dan tanggungjawab. 19

Defendan Ketiga ialah Kerajaan Malaysia dan pada setiap masa material, majikan dan/atau principal kepada Defendan Pertama dan Defendan Kedua.

Defendan Ketiga adalah bertanggungjawab dan bertanggungan liability secara vikarius (vicariously liable) atas semua tindakan dan peninggalan (omissions) Defendan Pertama dan Defendan Kedua dalam tindakan ini.

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Suatu pembedahan sepatutnya dijalankan segera ke atas si mati tetapi Defendan Pertama tidak mengaturkan sebarang pembedahan ke atas si mati dan Defendan Kedua dan Ketiga secara tidak 20 langsung turut tidak memastikan suatu pembedahan segera dijalankan.

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Kematian si mati adalah disebabkan kecuaian Defendan Pertama dan kecuaian sertaan Defendan Kedua.

Keluarga si mati dilarang memindahkan si mati ke Hospital Taiping untuk mendapatkan 21 rawatan lanjut atas alasan lemak boleh tersekat di jantung yang mengancam nyawa.

Tiada pembedahan ke atas si mati akan dilakukan sepanjang keluarga si mati tidak membayar rawatan pembedahan.

Tiada pembedahan ke atas si mati dilakukan segera walaupun RM950 telah dibayar seperti yang diberitahu doktor bertugas.

Si mati hanya diletakkan dalam senarai menunggu pembedahan walaupun kemungkinan lemak boleh menyekat jantung diketahui doktor.

Doktor bertugas hanya mengambil ringan situasi si mati dalam kesakitan yang teruk 22 walaupun pada asalnya stabil dan normal dengan memberi beberapa pil sahaja.

Kegagalan pihak hospital menjalankan pembedahan segera menyebabkan si mati menderita kesakitan yang teramat teruk sehingga terpaksa dipegang doktor-doktor dan kaki tangan diikat.

Kegagalan pihak hospital memberikan bekalan oksigen yang sempurna kepada si mati akibat kekurangan bekalan oksigen automatik selama hampir 2 jam.

Pihak hospital tidak menyegerakan kemasukan si mati ke wad ICU walaupun jelas tekanan darah dan denyutan jantung si mati semakin rendah.”. 23 [12] Although according to the plaintiff’s pleaded case it was the 1st defendant who was responsible to provide the medical treatment and carry out the surgery on the deceased, the evidence elicited during trial did not point to this fact. On the contrary, it shows that the doctor who attended the deceased was not the 1st defendant. It is also pertinent to note that in the particulars of negligence contained in the statement of claim, there was no specific allegation of negligence made by the plaintiff against the 1st defendant. As far as the 1st defendant is concerned, the alleged occurrences of negligence as particularized by the plaintiff merely refer to the “doctor in-charge” instead of specifically referring to the 1st defendant as the very foundation of the plaintiff’s claim for negligence. [13] I am of the considered view that the plaintiff has failed to name the primary tortfeasor in respect of the alleged negligence. Dr. Abdul Aziz bin Haji Yahaya (DW15) who is named as the 1st defendant in the suit was not the doctor who had attended the clinical and surgical management of the 24 deceased. This is clear from the evidence of DW15 and there was no challenge of this evidence by the learned counsel for the plaintiff in cross-examination relating to the role of DW15 as the 1st defendant vis-à-vis the treatment of the deceased as a patient at the hospital. In his witness statement (D15) marked as part of the evidence in-chief, DW15 said — “Question: Mr. Abdul Aziz, can you tell the Court your current workplace and what is your current occupation? Answer: I’m currently working at Hospital Seberang Jaya as Orthopaedic Consultant and Head of Department of Orthopaedic and Traumatology, Seberang Jaya Hospital. Question: During July 2014, what was your occupation? Answer: I was the Orthopaedic Specialist at Department of Orthopaedic and Traumatology, Seberang Jaya Hospital. 25 Question: Can Mr. Abdul Aziz tell the Court briefly what are the work scopes of Orthopaedic Specialist at Department of Orthopaedic and Traumatology, Seberang Jaya Hospital? Answer: Briefly, supervising clinical and surgical management of patients in designated wards, preparing medical reports and specialist medical reports. Question: Was Mr. Abdul Aziz involved with a patient by the name of Loganathan A/L Chandran during his admission at Seberang Jaya Hospital? Answer: I was not involved with clinical and surgical management of this patient. For this patient, Senior Consultant Orthopaedic in-charge was Mr. Nordin and specialist in-charge of Intensive Care Unit was Mr. Ong Teng Khiam. However, on 5 July 2014, I was instructed to prepare a chronology of case from admission 26 until the pronouncement of death regarding this patient. Question: Other than the chronology of case, did Mr. Abdul Aziz prepare any other documents? Answer: Yes. I did prepare medical reports dated 11 July 2014 and also 21 July 2014 which are at page 21 and 16 of Ikatan Dokumen Bersama. Question: Can Mr. Abdul Aziz explain regarding these medical reports? Answer: For 11 July 2014 medical report, it was initial draft which was prepared with references to medical notes and documents. However, this initial draft has been override by the final medical report dated 21 July 2014. The final report stated in details regarding the management and progress from 2 July 2014 until 4 July 2014 of the patient. 27 Question: Mr. Abdul Aziz, can you tell the court what was your further action after you had prepared the two medical reports? Answer: After I’ve endorsed the medical report dated 21 July 2014, I handed over to Medical Record Unit for their further action. Question: After Mr. Abdul Aziz prepared the medical reports, did you attend this patient at any time? Answer: No.”. [Emphasis added]. In fact, in certain parts of the cross-examination, the learned counsel for the plaintiff further confirmed that the 1st defendant (DW15) was not the one who treated the deceased but the deceased was instead treated by other doctors. In the relevant parts of the cross-examination, DW15 said — 28 “Question: How many doctors or specialist who actually manage this patient from the time he was brought to ward? I mean casualty was the (10:31:13 inaudible), from then onwards. How many doctors who actually managed it? Sorry we might take a bit but I think it’s important for me to know. Answer: Ya. Because I think you need to refer to the original, because some of the ….. some of the ….. doctors names are not clear here. Question: From whatever is in this report, you have free. Judge: You have the original? Plaintiff’s Counsel: Yes. May I? Judge: Yes. 29 Answer: So, Dr. Don is at the casualty. Dr. Sham Suhana. She’s the housemen, who clerk at the yellow zone, the emergency department. And then in the ward Dr. Aruna Nilini. Dr. Nadya binti Mohammad Rasyid is also a houseman. Dr. Fahmi is a Senior MO, Medical Officer. Mr. Nordin, Dr. Ainul Arina, Dr. Nur Rasidah, Dr. Wong Yu Cong, housemen.”. [14] On the basis of stare decisis which must be loyally followed to preserve a certain degree of certitude in judicial decisions (see: Anchorage Mall Sdn Bhd v. Irama Team (M) Sdn Bhd & Anor [2001] 7 CLJ 313; [2001] 2 MLJ 520; [2001] 3 MLRH 100), this Court is bound by the decision of the apex Court in Kerajaan Malaysia & Ors v. Lay Kee Tee & Ors [2009] 1 CLJ 663 FC; [2009] 1 MLJ 1; [2008] 2 MLRA 735; [2009] 1 AMR 509 in construing sections 5 and 6 of the Government Proceedings Act 1956. In the absence of any 30 finding of liability on the primary tortfeasor (which is not DW15 who was named as the 1st defendant), and without the public officer alleged to be the primary tortfeasor being made a party to the suit, there can be no finding of vicarious liability on the 2nd and 3rd defendants. In delivering the judgment of the Federal Court, His Lordship Nik Hashim FCJ (as His Lordship then was) said — “[16] Thus, I entirely agree with the views expressed by Abdul Aziz J (later FJ) in Haji Abdul Rahman, supra. Contrary to the finding of the Court of Appeal, Haji Abdul Rahman was correctly decided and should be upheld. Therefore, on the proper construction of ss. 5 and 6 of Act 359, in any claim in tort against the Government, the officer of the Government who was responsible for the alleged tortious act must be made a party and his liability be established before the Government can be made liable vicariously as principal. It would be insufficient to merely identify the officer without joining the officer as a party because liability by evidence 31 needs to be established. It is only upon a successful claim against the officer personally can a claim be laid against the Government.”. [Emphasis added]. [15] In the present appeal, rightly, the learned Sessions Court Judge did not make a finding of negligence on the part of the 1st defendant and I am of the considered view that this is attributed to the evidence thus presented which shows that the 1st defendant was only involved in preparing the medical reports but not in the care and treatment of the deceased as a patient of Hospital Seberang Jaya. [16] However, with respect, when she attached liability only against the 2nd and 3rd defendants the learned Sessions Court Judge did not deal with the basis of her findings. The 2nd defendant is the administrator for the hospital and the 3rd defendant, as its name suggests, is the ultimate employer. In what sense exactly could liability be said to have arisen 32 vicariously if there was no evidence which could distinctly identify the primary tortfeasor as the basis to attach the vicarious liability of the 2nd and 3rd defendants? Could the liability against the 2nd and 3rd defendants not be one which is vicarious in nature? Obviously, these questions must be answered in the negative. [17] For completeness sake, there are no findings of liability made against the 1st defendant and surely, being the person responsible only for the medical reports in the present appeal, the 1st defendant could not be the primary tortfeasor. I am of the considered view that the primary tortfeasor is not identified as a party to the suit and there is no finding of negligence made by the learned Sessions Court Judge against the 1st defendant being the alleged the primary tortfeasor. In the circumstances, there can be no liability attached to the 2nd and 3rd defendant vicariously. 33 [18] In respect of damages, although the learned counsel for the plaintiff concedes that there was no sufficient evidence adduced to support its claim for damages, I must venture to add that upon perusal of the record of appeal, the refusal of the learned Sessions Court Judge to make the award of damages is not without basis. Conclusion [19] On the premise as aforesaid, I hereby allow the appeal by the defendants and dismiss the appeal by the plaintiff. The decision of the learned Sessions Court Judge is hereby set aside. There shall be no order as to cost. Dated 31 July 2019. Sgd AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMISSIONER HIGH COURT PENANG. 34 (Civil Appeal No. PA – 12B – 46 – 06/2018) For the appellant/respondent: Parthipan K. Vairavan (Messrs. V. Parthipan & Co.) (Civil Appeal No. PA – 12B – 48 – 06/2018) For the respondent/appellant: SFC Husni Fairoz bin Ramly Attorney General’s Chambers.