1. ) Intan Shaharzad Binti Mohd Azri v 1. ) Kerajaan Malaysia (AA-21NCvC-18-06/2021)

AHMAD AZIB BIN AHMAD [NRIC NO.: 921112115985] … PLAINTIFFS 15

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AHMAD HAILME BIN ABDUL HALIM …DEFENDANTS GROUNDS OF JUDGMENT 25 Introduction [1]. This suit arises from the plaintiffs’ allegation of negligence and breach of statutory duty by the defendants, which the plaintiffs claim led to the miscarriage of the first plaintiff, a healthcare 29/07/2025 21:56:31 AA-21NCvC-18-06/2021 Kand. 70 assistant employed by the first defendant at Hospital Teluk 30 Intan. The claim primarily concerns the defendants' failure to accommodate the first plaintiff’s request for light duty after knowledge of her early high-risk pregnancy, and the adverse consequences that followed. Background facts by Plaintiff 35 [2]. The first plaintiff, Intan Shaharzad Binti Mohd Azri, was employed as a Healthcare Assistant (Pembantu Perawatan Kesihatan) at Hospital Teluk Intan. In early October 2018, she confirmed her pregnancy and informed her supervisors, including the fifth and sixth defendants. She presented her 40 antenatal record and requested lighter duties as advised by a government clinic doctor. [3]. At the material time, no documented reproductive health risk assessment was conducted by Hospital Teluk Intan, in accordance with the Occupational Safety and Health Act 45 1994 and the Guidelines on Reproductive Health Policy & Programmes at the Workplace. Instead, the first plaintiff was tasked with physically demanding duties as a hospital runner, transporting medical items, documents, and patients between multiple hospital departments, carrying documents, medical 50 items, and other duties involving walking and lifting. She was placed on the runner schedule from 22 to 26 October 2018. On 24 October 2018, her designated runner partner was absent, and she performed the runner duties alone. [4]. During the course of her duties on 24 October 2018, the first 55 plaintiff experienced vaginal bleeding. She reported the incident to her superior and was subsequently directed to attend the Klinik Kesihatan Ibu dan Anak (“KKIA”), approximately 4 kilometres away. She travelled there alone by motorcycle. 60 [5]. Upon arrival at KKIA, the first plaintiff was examined and diagnosed with an incomplete miscarriage, a condition where parts of the foetus remain in the uterus. During her time at the clinic, the plaintiff’s ordeal intensified in that moment. The first plaintiff experienced the traumatic passage of foetal tissue, she 65 witnessed the expulsion of what she believed to be the gestational sac or remains of the foetus into her sanitary pad. In a state of profound emotional distress and physical pain, and with no accompanying medical personnel, she had no choice but to document the expelled matter herself, she took a 70 photograph of the tissue later to show the medical personnel at the hospital as proof. The psychological weight of witnessing her own miscarriage unfold, alone and unsupported, left lasting emotional scars on her. She was later rushed back to Hospital Teluk Intan via ambulance, where she was admitted for further 75 treatment. However, by then, critical time had been lost. The miscarriage had progressed. [6]. The first plaintiff was later discharged with a follow-up psychiatric referral. She was diagnosed with moderate depression and received psychiatric care beginning in 80 November 2018. [7]. An internal inquiry was convened by the hospital. The inquiry found that no specific policy or formal system existed for workplace during pregnancy and that communication between departmental supervisors and staff was inadequate. It further 85 noted the absence of a risk assessment process and commented on managerial decision-making regarding the first plaintiff’s treatment pathway. [8]. The plaintiffs claim that these breaches, both statutory and under common law, directly caused or materially contributed to 90 her miscarriage. They argue that had the first plaintiff been reassigned to lighter duties and provided prompt medical care when the bleeding started, the tragic outcome could have been averted. They further contend that the defendants’ inaction reflects not only negligence but an institutional failure to protect 95 the reproductive health of female staff Witnesses Plaintiff Witnesses SP1 – Intan Shaharzad Binti Mohd Azri [9]. SP1, Intan Shaharzad Binti Mohd Azri, gave consistent and 100 firm testimony under lengthy and rigorous cross-examination. She maintained throughout that her miscarriage was cause of work-related stress and physical overexertion resulting from the defendants’ failure to accommodate her pregnancy with appropriate duty modifications. While she candidly admitted to 105 occasional memory lapses, particularly concerning dates and procedural formalities, she steadfastly rejected any suggestion that her complaints were fabricated or exaggerated after the event. Her evidence was coherent, emotionally sincere, and aligned with medical records and corroborating witnesses’ 110 testimony. SP2 – Dr See Kok Wah [10]. SP2, Dr See Kok Wah, provided consistent testimony during cross-examination. He stood by his medical findings that the plaintiff exhibited signs of an impending miscarriage when 115 examined and confirmed that she had communicated workplace-related strain to him. Although he acknowledged that he did not independently verify the plaintiff’s actual job scope or the working conditions at the hospital, he affirmed that her complaints were medically plausible and reasonable based 120 on his clinical assessment. His evidence supported the view that the plaintiff’s physical and emotional symptoms were consistent with the risk of miscarriage. 125 SP3 – Ashirah Binti Abdul Rahman [11]. SP3, Ashirah Binti Abdul Rahman, corroborated the plaintiff’s account of being subject to a high workload and confirmed that the plaintiff had verbally requested light duty during her pregnancy. Under cross-examination, she acknowledged that 130 no formal complaint was lodged, nor was any follow-up action taken to escalate the plaintiff’s concerns to higher authorities. She denied any bias or intent to fabricate her testimony but fairly conceded that her knowledge was confined to her own working hours and that she could not speak of the plaintiff’s 135 complete schedule or treatment outside those periods. SP4 – Dr Ahmad Syukri Chew Bin Abdullah @ Chew Yee Yit [12]. SP4, Dr Ahmad Syukri Chew Bin Abdullah, testified that the plaintiff exhibited clear signs of psychological trauma and emotional distress following her miscarriage. During cross- 140 examination, he was questioned about the plaintiff’s missed follow-up psychiatric appointments, but he maintained that his initial diagnosis of trauma was clinically appropriate and based on her presentation during consultation. His evidence remained consistent, and no indication of exaggeration or bias 145 was elicited during the cross-examination. His testimony supported the plaintiff’s claim of ongoing mental health impact post-incident. SP5 – Dr Milton Lum Siew Wah (Expert Witness) 150 [13]. SP5, Dr Milton Lum Siew Wah is an Obstetrics and Gynaecologist, who is called as an expert witness, he acknowledged during cross-examination that he did not personally examine the plaintiff. His expert opinion was derived solely from reviewing medical records, documents, and 155 relevant Ministry of Health guidelines. He candidly accepted the limitations of his role but maintained that the hospital had breached its duties under the Occupational Safety and Health Act (“OSHA”). He stood firm in his conclusion that the failure to assign the plaintiff to light duty materially increased 160 the risk of miscarriage, consistent with accepted occupational health standards. SP6 – Ahmad Azib Bin Ahmad (Husband) [14]. SP6, Ahmad Azib Bin Ahmad, the plaintiff’s husband, who is the second plaintiff, testified to the emotional toll the 165 miscarriage had on him, including the grief of lost fatherhood and the efforts he made to support his wife during and after the incident. During cross-examination, he was questioned about his involvement in preparing the plaintiff’s pleadings and whether this had influenced or shaped her testimony. He firmly 170 denied any orchestration or embellishment of the facts, maintaining that their claims were genuine. His testimony was delivered with sincerity and was consistent with the broader narrative presented by the plaintiff. SP7 – Rosmawati (Confinement Therapist) 175 [15]. SP7, Rosmawati, a confinement therapist, gave brief but credible evidence regarding the traditional care she provided to the plaintiff following the miscarriage. She confirmed that the plaintiff was physically weak and emotionally affected during the confinement period. Her observations supported the 180 plaintiff’s account of post-miscarriage recovery. Rosmawati’s testimony was not heavily challenged during cross-examination and went largely uncontroverted, lending further credibility to the plaintiff’s claim of physical and emotional hardship. 185 SP8 – Dr Sarah Abdul Mubarak (O&G Specialist) [16]. SP8, Dr Sarah Abdul Mubarak, an obstetrics and gynaecology specialist, provided her expert opinion via Zoom, focusing on pregnancy-related risks and applicable standards of care. She testified on the importance of workplace adjustments for 190 pregnant employees and the need for early risk assessments. During cross-examination, her findings remained intact and were not materially challenged. She consistently upheld the prevailing medical standards for managing risk in early pregnancy and reinforced the view that appropriate 195 interventions could have mitigated the plaintiff’s miscarriage risk. Her evidence supported the need for proactive care in similar workplace contexts. Defendant Witnesses SD1 – Kamsani Bin Kadir (Supervisor, 5th Defendant) 200 [17]. SD1, Kamsani Bin Kadir, the fifth defendant and plaintiff’s immediate supervisor, denied receiving any formal or informal request from the plaintiff for light duty during her pregnancy. Under cross-examination, he appeared defensive and sometimes evasive when questioned about the standard 205 procedures for managing pregnant staff within the hospital. Notably, he could not produce any documentation demonstrating that the plaintiff’s pregnancy was acknowledged or that any proactive steps were taken to assess or accommodate her condition. His testimony revealed a lack of 210 institutional follow-through despite awareness of her pregnancy. SD2 – Ahmad Hailme Bin Abdul Halim (Roster Officer, 6th Defendant) [18]. SD2, Ahmad Hailme Bin Abdul Halim, the sixth defendant and 215 officer responsible for duty rosters, denied that the plaintiff’s assigned duties were unsafe or excessive during her pregnancy. However, he admitted under cross-examination that no occupational risk assessment was conducted despite being aware of her condition. He was challenged as to why no 220 corrective action or response had been taken even after concerns and complaints had been raised. His testimony reflected a lack of procedural safeguards and a failure to implement protective measures for a pregnant staff member SD3 – Dr Khairul Baharin Bin Mohd Baharuddin (3rd Defendant, 225 Hospital Admin) [19]. SD3, Dr Khairul Baharin Bin Mohd Baharuddin, the third defendant and hospital administrator, defended the internal inquiry findings concluding that no wrongdoing had occurred. However, under cross-examination, he admitted that the 230 inquiry process relied heavily on documentation and did not involve comprehensive interviews with relevant staff, including the plaintiff. When pressed further, he conceded that the Ministry of Health Guidelines, particularly those concerning reproductive health in the workplace, were not strictly adhered 235 to in the hospital’s handling of the plaintiff’s case. His testimony revealed procedural deficiencies in the hospital’s internal review mechanism. SD4 – Dr Sazali Bin Satari [20]. SD4, Dr Sazali Bin Satari, gave technical testimony concerning 240 staffing practices and standard operating procedures within the hospital. His evidence was largely formal and procedural, outlining the general framework rather than addressing the plaintiff’s specific circumstances. Cross-examination was limited, and his testimony did not substantially challenge or 245 contradict the plaintiff’s version of events. He maintained a neutral stance and did not offer opinions that undermined the core of the plaintiff’s claims. SD5 – Dr Mohammad Fahmi Bin Zulkifli [21]. SD5, Dr Mohammad Fahmi Bin Zulkifli, testified in support of 250 the hospital’s administrative procedures, asserting that internal actions were in compliance with institutional protocols. Under cross-examination, he was questioned on the hospital’s adherence to Ministry Guidelines relating to workplace safety for pregnant employees. While he defended the hospital’s 255 conduct and maintained that it had acted reasonably based on the available information, he did not make any significant concessions. His testimony aimed to reinforce the view that there was no deliberate neglect or breach on the part of the hospital. 260 Issues for determination a) Whether the defendants owed and breached common law duty and statutory duties under OSHA 1994 and guidelines. b) Whether the plaintiff properly requested lighter duties, and if 265 the defendants wrongly denied it. c) Whether the defendants failed to provide timely medical care during plaintiff’s emergency. d) Whether defendants’ actions or omissions materially contributed to the plaintiff’s miscarriage. 270 e) Whether the plaintiff’s mental distress was a foreseeable result of the defendants’ conduct. f) Whether the first defendant is vicariously liable and the plaintiffs are entitled to compensation. Issue: Whether the Defendants Owed and Breached Statutory 275 Duties under the Occupational Safety and Health Act 1994 (OSHA) and Guidelines [22]. Before this court, the core issue was whether the defendants, as officers and employers of Hospital Teluk Intan, were under a statutory duty to ensure a safe working environment for the 280 first plaintiff during her pregnancy, and whether that duty was breached. [23]. The plaintiff relies on Sections 15(1) and (2) of the Occupational Safety and Health Act 1994. Section 15(1) imposes a general duty on every employer to ensure, so far as 285 practicable, the safety, health, and welfare of all employees. Section 15(2) extends that duty to include providing necessary information, instruction, training, and supervision. This obligation is reinforced by the Guidelines on Reproductive Health Policy & Programmes at the Workplace issued by 290 the Department of Occupational Safety and Health, which state: “It should be the duty of employers to assess any risk to the reproductive health of employees and any possible effect on the pregnant employees…” 295 [24]. Expert witness Dr Milton Lum (SP5), a consultant obstetrician and gynaecologist, testified unequivocally: “In a hospital or clinic setting whenever a pregnant member of the staff informs us that she is pregnant, it is 300 incumbent upon the attending doctor to, … particularly if he is the head of department, to make a risk assessment of the patient’s pregnancy, irrespective of the fact whether she’s a patient or a member of the staff …. 305 … it is our usual practice to do that.” [NOE - page 6/76] [25]. He confirmed that no such assessment was conducted in this case, despite the plaintiff having notified her superiors of her 310 pregnancy on 5 October 2018. [26]. The hospital’s internal inquiry corroborated Dr Razali’s (SD4) opinion and recorded systemic deficiencies in workplace management, stating: “The policy of work modification in pregnancy is vague, not 315 only at departmental level, but for the whole hospital… putting the responsibility solely on managerial discretion without clear guidelines is unfair.” [Noe page 41/68] 320 [27]. When cross-examined on whether a formal written application for lighter duties was necessary, Dr Lum rejected that view: “We do not ask the staff member to fill in an application form for light duty. [Noe page 41/76] 325 That is very bureaucratic measure which cannot stand in practice simply because events may move very fast.” [Noe page 46/76] 330 [28]. He reiterated that a risk assessment should be automatic upon notice of pregnancy: “Every pregnant woman has to be assessed on her individual risk. …… 335 That is a standard practice.” [Noe page 33/76] [29]. This expert testimony, aligned with the hospital's own findings, reveals a failure to establish or enforce systems for 340 occupational health protection. The court is satisfied that failing to carry out a risk assessment following the plaintiff’s pregnancy disclosure constitutes a breach of the defendants’ duties under Sections 15 and 16 of OSHA. [30]. In reply, the defendants argued that the plaintiff bore the legal 345 burden to prove breach and causation and that no statutory duty arose without formal documentation or medical certification. In support, they cited Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175; [1971] CLJU 151 to state that negligence must be proven on a balance of probabilities. 350 [31]. The court finds that the plaintiff has met this burden. Her oral notice of pregnancy was clear and uncontroverted. Both expert and documentary evidence establish that the failure to conduct a risk assessment following this notice violated the hospital’s legal obligations. The internal inquiry’s acknowledgment of 355 systemic weaknesses further confirms this breach. [32]. Additionally, the testimony of SP3, Ashirah Binti Abdul Rahman, a Jururawat Masyarakat at Klinik Kesihatan Teluk Intan, provides material corroboration. She testified that the Plaintiff arrived at the clinic in an emotionally and physically 360 distressed state, and not via formal hospital referral: “Patient, dia risau. Dia ada tanya Dr See macam mana keadaan... keputusan scan itulah. Lepas tu, Dr See ada terangkanlah yang dia punya kandungan tu berisiko.. Jadi, bila Dr See spoken dengan hospital, pelan untuk referlah. 365 Jadi,. saya yang hantar guna ambulans.” [NOE P 38/69] [33]. SP3 further testified that the plaintiff questioned why she had not been directed to the hospital’s emergency unit despite her 370 workplace proximity: “Waktu tu saya sembang dengan dia … cakap kita mungkin kena refer ke hospital. Jadi kenapa Puan tak terus pergi ke hospital sedangkan Puan bekerja di Pesakit Luar? Sebab kedudukan pesakit luar dengan kecemasan 375 tu berhampiran. Jadi dia bagi tahu yang pihak atasan minta dia datang ke Klinik Kesihatan Teluk Intan untuk dapatkan rawatan.” [NOE P 41/69] 380 [34]. On the plaintiff’s psychological condition, SP3 observed: “Okay, waktu tu, dia memang nampak sedih, emosi dia macam terganggu. Dia nampak risau, dan dia tanya saya, sebelumnya dia tanya pada Dr See, tapi masih lagi tanya saya dalam ambulans sama ada dia punya kandungan selamat 385 ataupun tidak.” [35]. SP3’s testimony confirms two institutional failures: first, that the plaintiff was wrongly diverted away from emergency care despite clear symptoms; and second, that no internal system 390 existed to manage medical risk for pregnant staff. These failures are directly attributable to a breach of statutory duties. [36]. The court further notes that even the defendants’ own witnesses support this finding. SD1, Kamsani Bin Kadir, the plaintiff’s supervisor, who was the plaintiff’s supervisor, 395 admitted during cross-examination that he had knowledge of the plaintiff’s pregnancy but failed to document or escalate any measures for workplace adjustments. Despite the known occupational guidelines, he also acknowledged the absence of any documented initiative to assess her condition or to modify 400 her duties. This testimony lends implicit support to the plaintiff’s claim of neglect, especially in failing to provide light duty or risk assessments after she disclosed her pregnancy admitted. [37]. SD2, Ahmad Hailme Bin Abdul Halim, also testified not having a roster for the month of October 2018: 405 PA: Dan di hadapan Mahkamah, saya sudah teliti, Encik Hailme boleh sahkan, tidak ada roster untuk bulan Oktober 2018, setuju? SD2: Setuju. 410 [NOE page 5/62] [38]. He admitted to telling the plaintiff: PA: “Saya tak masuk hal kamu. Saya tak cakap pun bagi kamu cuti. Kamu jawab sendiri dengan bos.” Baik? 415 SD2: Ya, ya. [NOE page 29/61] [39]. SD3, Dr Khairul Baharin Bin Mohd Baharuddin, the Hospital Director, distanced himself from direct operational oversight by 420 explaining that Hospital Teluk Intan comprises over 50 departments, each headed by its own departmental director and supervised independently. [40]. SD4, Dr Sazali Bin Satari, who chaired the Internal Inquiry, acknowledged that the inquiry findings relied predominantly on 425 documentary evidence and lacked a thorough fact-finding process involving interviews or direct testimony from relevant personnel. This procedural gap limited the ability to confirm whether the plaintiff’s complaints were formally lodged or investigated adequately. Moreover, Dr Sazali admitted that the 430 inquiry did not comprehensively assess the hospital’s compliance with Ministry Guidelines on workplace protections for pregnant employees, particularly regarding risk assessments or light duty arrangements. [41]. These testimonies confirm that no formal occupational health 435 system was in place to deal with pregnancy-related risks, that duty assignments were informal and unrecorded, and that managers failed to respond to a known medical situation. This reflects systemic non-compliance with OSHA 1994. [42]. Taken as a whole, the court finds that the statutory duties under 440 Sections 15 and 16 of the Occupational Safety and Health Act 1994 and the relevant guidelines were breached. The failure of the defendants, particularly the Fourth to Sixth defendants, to take reasonable steps to assess and modify the plaintiff’s duties after her pregnancy disclosure was not only 445 negligent but also unlawful. [43]. Accordingly, the court concludes that this breach of statutory duty materially contributed to the plaintiff’s miscarriage and the resulting emotional harm. The legal threshold of liability is met. 450 Issue: Whether the Plaintiff Properly Requested Lighter Duties and Whether the Defendants Wrongly Denied It [44]. The court must consider whether the first plaintiff had sufficiently conveyed her request for lighter duties and whether the defendants wrongfully rejected or failed to accommodate 455 such a request. This issue concerns the interaction between internal occupational policy, supervisory discretion, and medical vulnerability in pregnancy. [45]. The plaintiff’s position is that she had orally informed both her immediate supervisor, En. Kamsani (SD1), and the roster 460 supervisor, En. Ahmad Hailme (SD2), of her need for lighter duties after receiving medical advice. She testified that she conveyed this to SD1 on 23 October 2018 and that SD2 had been messaged earlier via WhatsApp, which showed a blue tick but no reply. Her account is corroborated by her personal 465 chronology and the transcript of the internal inquiry. [46]. In cross-examination, SD1 acknowledged this interaction: “Pada 23.10, dia ada berjumpa saya di bilik, maklumkan dia mohon kerja light duty. Jadi saya maklumkan pada dia, kerja light duty tidak boleh diminta secara verbal macam 470 itu sahaja. Mesti dapatkan surat pengesahan daripada pegawai perubatan yang merawat beliau. Sebab pegawai perubatan yang merawat beliau, arif, adakah dia perlu dibagi kerja light duty.” [NOE page 54/60] 475 [47]. However, SD1 also admitted there was no requirement for a formal letter from the supervisor to initiate such a request: “Dia tak memerlukan surat. Cuma arahan sahaja supaya mana-mana pekerja yang memerlukan light duty, mesti 480 kemukakan bukti yang dia layak untuk mendapat light duty. Saya sebagai penyelia, saya tak boleh gunakan sebab saya punya common sense, kata ini mengandung layak dapat light duty. Dia mestikan tunjukkan bukti bertulis, bermakna bukti bertulis itu surat light duty 485 daripada pegawai perubatan yang merawat.” [NOE page 55/60] [48]. The plaintiff did not produce a formal certificate but relied on oral medical advice conveyed from the KKIA. The defendants 490 argue this did not meet procedural requirements. Nevertheless, the evidence reveals that the refusal came without exploring accommodation or assistance. [49]. This aligns with the testimony of SP5, Dr Milton Lum, who rejected the notion that written applications were necessary in 495 practice: “We do not ask the staff member to fill in an application form for light duty… That is very bureaucratic measure which cannot stand in practice simply because events may move very fast.” 500 [Noe page 41, 46/76] [50]. He added that upon disclosure of pregnancy, the employer bears a positive duty to assess and respond: “Every pregnant woman has to be assessed on her 505 individual risk. That is a standard practice.” [Noe page 33/76] [51]. The plaintiff’s case is further supported by paragraph 16 of the Defence Pleadings, where the defendants admitted: 510 “Plaintif Pertama berjumpa dengan Defendan Ke-empat meminta untuk tidak diberikan kerja berat dan Defendan Ke-empat menolak permintaan tersebut.” [52]. This admission undermines their later position that the plaintiff 515 failed to apply properly. The rejection was based not on the absence of application but on the refusal to act on an oral request, a refusal that became institutional once light duties were conditioned on written certification without due assistance or facilitation. 520 [53]. The court finds that the plaintiff’s oral request, made directly to supervisory staff after medical advice, constituted a sufficient invocation of her need for accommodation under the circumstances. The insistence on written documentation as a precondition, without providing the means or guidance to 525 obtain it, was unreasonably rigid and inconsistent with the principles of employee safety and proactive duty under Section 15 OSHA 1994. [54]. Accordingly, the court holds that the plaintiff properly requested lighter duties and that the defendants wrongfully denied or 530 failed to act upon this request. This failure amounts to a breach of duty, particularly in the context of a foreseeable health risk to a pregnant employee working in a high-stress hospital setting. Whether the Defendants’ Actions or Omissions Materially 535 Contributed to the Plaintiff’s Miscarriage [55]. The court is required to assess whether the acts or omissions of the defendants materially contributed to the miscarriage suffered by the first plaintiff. The standard applicable in such circumstances is not the strict "but for" test, but rather the test 540 of material contribution to the risk of harm, as articulated in Wu Siew Ying t/a Fuh Ling Bud - Grafting Centre v Gunung Tunggal Quarry & Construction Sdn Bhd & Ors [2011] 2 MLJ 1; [2011] 1 CLJ 409. The Federal Court in that case held: “…that there were a multiple of factors that could bring 545 about the injury to the plaintiff. Thus, to decide whether there was causation in these circumstances, the approach as to whether any of these acts or events or factors had materially contributed to the plaintiff's injury should be adopted. 550 In the present case, although the vibration caused by the quarry operations that were carried out by the first defendant was not a primary cause, it had over time materially contributed to the rockfall which caused the plaintiff's injury. As such this factor was neither trivial nor 555 insignificant but instead a cause which materially contributed to the rockfall (see paras 36–38).” [56]. Applying this principle, the plaintiff adduced uncontroverted expert evidence from Dr Milton Lum (SP5), a consultant 560 obstetrician and gynaecologist, who opined that: It is possible, it is probable that the work factor may have contributed to her miscarriage. [Noe page 42/76] 565 Had an occupational risk assessment of IS and work modification been carried out, her miscarriage may not have been occurred, may not have occurred. [Noe page 43/76] 570 .. there was a loss of chance, whether IS mental condition during and post-miscarriage was adequately dealt with. These are addressed at pages 16 to 18 of my opinion [Noe page 46/76] 575 [57]. This opinion was reinforced during re-examination, where Dr Lum clarified: “The questions that were posed to me were prefaced with the need of application. When a pregnant female of staff approaches any of us in a private hospital or a private clinic 580 informing us that she has been advised by a doctor elsewhere whether klinik kesihatan or another general practitioner or another obstetricians that she has to have a light duty, it is incumbent upon the doctor to make a risk assessment. We do not ask the patient to fill in an 585 application form. That is a very bureaucratic measure which cannot stand in practice simply because events may move very fast.” [NOE p 46/75] 590 [58]. The plaintiff had informed her supervisor of her pregnancy on 5 October 2018 and made an oral request for light duties. This triggered a legal and professional obligation to assess occupational risk, which was never fulfilled. [59]. The defendants did not present any contradicting expert 595 medical evidence. Indeed, their own witnesses confirmed they lacked obstetric expertise. SD1 Kamsani bin Kadir admitted the plaintiff was scheduled alone on the relevant date via WhatsApp, and SD2 Ahmad Hailme bin Abdul Halim stated, “Saya tak masuk hal kamu… jawab sendiri dengan bos,” when 600 the plaintiff reported bleeding. This casual delegation reflects institutional indifference. [60]. Further, SD3 Dr Khairul Baharin, the hospital director, attempted to deny knowledge by stating, “Bukan direct repot kepada saya,” and SD4 Dr Sazali Bin Satari, as chair of the 605 internal inquiry, acknowledged that there was no clear hospital policy or risk assessment system in place for pregnant staff. [61]. SP8, Dr Sarah Abdul Mubarak, another gynaecology expert, confirmed that a pregnancy like the plaintiff’s, at advanced maternal age and with a high-stress, standing-intensive work 610 environment, should have triggered caution and closer supervision, yet this was entirely absent. [62]. On balance, the court finds that the defendants’ omission to perform an occupational risk assessment and their failure to modify the plaintiff’s duties materially increased the risk of 615 miscarriage. This lapse is causally linked to the injury and was neither trivial nor unforeseeable. [63]. Accordingly, the court holds that the defendants’ conduct materially contributed to the plaintiff’s miscarriage and that the legal threshold for causation in tort law has been met. The 620 plaintiff is entitled to succeed on this issue. Issue: Whether the Plaintiff’s Mental Distress Was a Foreseeable Result of the Defendants’ Conduct [64]. The question before the court is whether the plaintiff’s psychiatric injury, specifically, moderate depression, was a 625 reasonably foreseeable consequence of the defendants’ acts and omissions. In determining this, the court must assess the evidence in light of established principles of remoteness of damage and foreseeability. [65]. It is a foundational principle in tort law that a defendant is liable 630 for all reasonably foreseeable injuries, even if the precise extent of the damage was not. In The Wagon Mound (No. 1) [1961] AC 388, Lord Reid held that “the kind of damage must be reasonably foreseeable although neither the extent of the damage nor the precise manner of its occurrence needs to be.” 635 The plaintiff relies further on Smith v Leech Brain & Co Ltd [1962] 2 QB 405, where Lord Parker CJ reiterated the “egg shell skull” rule: “The question is whether these employers could reasonably foresee the type of injury he suffered, namely, 640 the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim.” [66]. Applying these principles to the present case, the plaintiff has 645 shown through medical evidence that the miscarriage and subsequent mental health deterioration were not only foreseeable but expected risks that medically trained supervisors should have anticipated. Dr Ahmad Syukri Chew, a psychiatrist, confirmed the plaintiff developed “moderate 650 depression” following the miscarriage and stated that the initial cause for treatment was directly linked to the miscarriage itself, not any prior condition. Dr Ahmad Syukri Chew states in evidence: “...sejurus selepas keguguran SP1 memang mengalami 655 moderate depression... the first cause untuk SP1 menerima rawatan dari Dr Chew ialah sejurus selepas keguguran dan bukan sebelum itu”. [NOE page 48/69] 660 [67]. Further, Dr Milton Lum, the plaintiff’s expert in obstetrics and gynaecology, provided critical causative evidence. He opined that the miscarriage was foreseeable given the plaintiff’s advanced maternal age and the absence of risk assessment after notifying her superiors of the pregnancy. He noted: 665 FMY: Your opinion, that the risk of miscarriage was foreseeable yet Dr E and HTI did not act upon IS request for light duty. It is not true, Doctor. It is not because you are mentioning foreseeable for HTI and for Dr Edward. 670 [NOE page 33/76] FMY: Question 107, Doctor. She attended psychiatric unit on 14 occasions, Doctor. SP5: Yes. 675 [NOE page 44/76] [68]. Notably, the foreseeability of emotional harm was heightened by the defendants’ expertise. As medical professionals, they should have appreciated the gravity of denying lighter duties to 680 a pregnant employee and the emotional toll a miscarriage could inflict. This duty is magnified by the fact that Hospital Teluk Intan, the plaintiff’s workplace, has its own psychiatric department, suggesting institutional knowledge of such consequences. 685 [69]. The defendant’s submissions attempt to downplay this causal link by suggesting other intervening causes, such as the plaintiff’s own conduct in driving herself to the clinic. However, as the plaintiff rightly argues, these were not adequately pleaded nor supported by cross-examination or expert rebuttal 690 evidence. Equivalent expert witnesses from the defence side did not challenge Dr Ahmad Syukri Chew’s and Dr Lum’s conclusions. [70]. In the final analysis, the court finds that the plaintiff’s psychological distress, manifested as clinically diagnosed 695 depression, was a foreseeable and direct consequence of the defendants’ omission in addressing the plaintiff’s request for workplace accommodation. The plaintiff’s emotional vulnerability was not a novel or rare occurrence in such circumstances but a likely sequela in a pregnant woman who 700 suffers a miscarriage under preventable work conditions. [71]. Accordingly, this court finds the defendants liable for the plaintiff’s mental distress, consistent with the legal principles in Wagon Mound (Supra) and Smith v Leech Brain & Co Ltd (Supra), reinforced by uncontroverted expert evidence on 705 record. Whether the First Defendant is Vicariously Liable and the Plaintiffs Entitled to Compensation [72]. In determining whether the first defendant (the Government of Malaysia) is vicariously liable for the acts or omissions of the 710 fourth to sixth Defendants and liable in damages to the plaintiff, the court considers the statutory framework, common law principles, and the factual matrix supported by the documentary and oral evidence adduced. [73]. The statutory basis for vicarious liability lies in Sections 5 and 715 6 of the Government Proceedings Act 1956. Section 5 reads: “The Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which 720 a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent…” [74]. The plaintiff submits that the acts of the individual defendants, 725 including Dr Edward (the head of department) and other supervisory personnel, were committed during the course of their public duties. The plaintiff further argues that their failure to conduct risk assessments, assign light duties, or activate emergency protocols triggered liability in tort. The plaintiff relies 730 on McGhee v National Coal Board [1973] 1 WLR 1 and Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22 for the principle that a material increase in risk can suffice to prove causation where a precise causal link cannot be established. In McGhee (supra) Lord Reid opined: 735 “From a broad and practical viewpoint I can see no substantial difference between saying that what the defendant did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to the injury.” 740 [75]. The expert evidence of Dr Milton Lum (SP5) was pivotal. He stated that: “No occupational risk assessment was carried out when IS informed Dr E of her pregnancy and requested light duty… 745 The risk of miscarriage was foreseeable yet Dr E and HTI did not act upon [her] request… Had an occupational risk assessment and work modifications been carried out, her miscarriage may not have occurred.” 750 [76]. Furthermore, the internal inquiry chaired by Dr Sazali (SD4) acknowledged systemic failures whereby putting the responsibility solely on managerial discretion without clear guidelines is unfair: 755 “SD4: The policy of work modification in pregnancy is vague… [NOE page 41/68] SD4: Because we don’t have Malaysian punya. So, I have 760 to use it lah. Because I think that is the only one that I can find yang objektif. Because kalau tidak budi bicara ketua jabatan. Budi bicara ketua jabatan. So I think it’s unfair to the employer juga to make decision without a clear guideline” 765 [NOE page 52/68] [77]. This was endorsed by SD5, Dr Mohammad Fahmi Bin Zulkifli, who confirmed the report’s authenticity. The inquiry's findings clearly show administrative lapses that directly contravened safety duties under the Occupational Safety and Health Act 770 1994 (OSHA), sections 15 and 16. [78]. The defendants argue that no causative link was proven between the miscarriage and the failure to assign light duties. However, this argument is unpersuasive in light of the testimonies, especially from SP5 and SP4 (Dr Ahmad Syukri 775 Chew), who confirmed that the plaintiff developed moderate depression post-miscarriage and that her mental health deterioration was linked to the trauma suffered thereafter. [79]. Moreover, the Government’s liability under Section 5 is absolute once it is shown that the tortfeasors acted within the 780 scope of public duty. The defendants did not dispute that the fourth to sixth Defendants were acting in their official capacity. The failure to have institutional systems in place, as shown by the testimony of SD1 (Kamsani), SD2 (Ahmad Hailme), and SD3 (Dr Khairul Baharin), reinforces the plaintiff’s case that the 785 hospital management failed in their supervisory and procedural responsibilities. [80]. Accordingly, the court finds that the acts and omissions of the fourth to sixth defendants, being committed during the discharge of their duties as public officers, give rise to vicarious 790 liability on the part of the first defendant under Section 5 of the Government Proceedings Act 1956. The plaintiff has satisfied the burden of proving causation and injury attributable to the institutional neglect by the officers of Hospital Teluk Intan. 795 [81]. The court thus holds that the first defendant is vicariously liable for the proven breaches and the plaintiffs are entitled to compensation for the physical, emotional, and consequential losses suffered. The quantum of damages will be assessed accordingly. 800 Conclusion [82]. Having considered the totality of the evidence oral and documentary evidence and applying the relevant legal principles, this court finds that the defendants breached their statutory and common law duties of care. Their failure to 805 conduct a risk assessment, accommodate a valid request for light duty, and provide timely medical support materially contributed to the first plaintiff’s miscarriage and mental distress. The first defendant is vicariously liable. Judgment is entered for the plaintiffs, with damages and costs considered 810 here below. Damages [83]. In the present case, the plaintiffs submitted a detailed claim for 815 damages, which the court considered under several heads, alongside the defendants' positions. Special Damages [84]. Under Special Damages (Ganti rugi Khas), the plaintiffs sought a total of RM5,273.20, which included items such as 820 RM3,000 for the Roswell confinement package, medical treatment expenses at Anson Bay Medical Centre (RM153 and RM188.60), Hospital Umra (RM110), Klinik Jyothi (RM60 and RM50), Klinik Medivron (RM30), and Poliklinik Dr Azhar (RM20 and RM50). They also claimed RM1,111.60 for travel expenses 825 and RM500 for the husband’s caregiving support. The defendants did not challenge this head with specificity, and the court allowed the full amount of RM5,273.20, as they reasonable. General Damages – Pain, Suffering, and Emotional Distress 830 [85]. The plaintiffs collectively claimed RM250,000 in general damages, divided as follows: RM100,000 for the miscarriage, RM75,000 for the first plaintiff’s mental health impairment, and RM75,000 for the emotional suffering of the second plaintiff. The defendants countered this by proposing a substantially 835 lower sum of RM15,000, with RM5,000 allocated to the miscarriage and RM10,000 for mental distress, citing the speculative nature of the causal link. [86]. Upon review of the pleadings, evidence, and relevant authorities, the court finds that the first plaintiff suffered a 840 miscarriage while under work-related stress and did not receive the protective measures required under workplace health policies. The plaintiff was diagnosed with moderate depression following the incident and received psychiatric treatment. Although the plaintiff also attributes a reduction in her ability to 845 conceive to the incident, no definitive medical causation was established on this point. However, her expert's view (Dr Milton Lum) was not contradicted. [87]. The defendants argued that the miscarriage could have resulted from natural factors, including SP1’s age and pre- 850 existing fibroid condition. However, the court notes that once the defendants were informed of the plaintiff’s pregnancy on 5.10.2018, there was a duty to take proactive steps consistent with the Guideline on Reproductive Health Policy and Programme at the Workplace. Their failure to do so materially 855 increased the risk of harm. [88]. Taking into account the totality of the evidence and authorities cited, and applying the principles from Smith v Leech Brain & Co Ltd (supra) and Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd & Anor (supra), the court 860 finds that the plaintiff is entitled to general damages on the basis that plaintiff’s work conditions materially increased the risk of miscarriage, but a reduction from the sum claimed is warranted due to the lack of conclusive causation. [89]. Accordingly, a total sum of RM80,000 is awarded under 865 general damages. The amount is apportioned as follows: a) RM40,000 for pain and suffering from the miscarriage, reflecting the physical loss, disruption to reproductive expectations, and associated grief. b) RM30,000 for the first plaintiff’s psychological trauma and 870 psychiatric treatment, supported by expert and factual evidence. c) RM10,000 to the second plaintiff (SP6) for emotional suffering, strain on marital expectations, and the psychological impact of the miscarriage. 875 [90]. This apportionment reflects a reasoned balance between the evidence adduced, the competing positions of the parties, and prevailing case law on damages for emotional and reproductive harm. Aggravated Damages – Indifferent Conduct and Emotional Harm 880 [91]. The plaintiffs claimed RM125,000 in aggravated damages, alleging that the defendants’ conduct after the miscarriage was indifferent and contributed to further emotional distress. They pointed to dismissive communications—particularly WhatsApp replies from the fifth defendant, such as “cuti jangan minta 885 dengan saya…” as evidence of a lack of empathy. The plaintiffs relied on Sambaga Valli KR Ponnusamyv Datuk Bandar Kuala Lumpur & Ors (and Another Appeal) [2018] 1 MLJ 784; [2018] 4 AMR 745; [2017] CLJU 500 and Dr Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim & Anor 890 And Another Appeal [2018] 3 MLJ 281; [2018] 1 AMR 209; [2018] 3 CLJ 427 to support the threshold for aggravated damages, arguing that the defendants’ failure to act sensitively or implement safety measures constituted oppressive behaviour. 895 [92]. The defendants denied wrongdoing, asserting they referred the plaintiff for appropriate medical attention and that the messages cited were taken out of context. They contended there was no intent to cause harm and that any administrative failings did not amount to aggravated misconduct. They further 900 argued that aggravated damages were unwarranted without malice or recklessness. [93]. Upon review, the court found no clear evidence of deliberate cruelty or oppressive behaviour that would justify a high aggravated award. However, it accepted that the defendants, 905 as healthcare professionals, failed to provide the necessary emotional support and institutional responsiveness expected in the aftermath of a miscarriage. While the conduct did not meet the legal threshold for malice, the court recognised that the insensitive handling of the situation warranted some remedy. 910 [94]. Accordingly, the court awarded RM20,000 in aggravated damages, reflecting a proportionate response to the defendants’ insufficient care and sensitivity during a medically and emotionally vulnerable period for the plaintiff. Future Damages (IVF Costs) 915 [95]. The plaintiff claimed RM70,000 for future IVF treatment, relying on expert SP8's opinion that her chances of natural conception were very low and that IVF was medically necessary. Past authorities such as Nares a/l Sundaram & Anor v. Goh May Fat & Anor, Rayuan No. B-04-300-09/2014 (unreported) were 920 cited to support such awards, even in cases with limited success rates. The defendants, however, contended that the plaintiff’s infertility stemmed from a pre-existing fibroid condition rather than any workplace-related negligence. They argued that only one-third of the amount should be awarded, 925 referencing Ogedegbe Imoukhuede Rawlings v Lingeswaran Muniandy [2016] 10 MLJ 222; [2016] CLJU 292 to support cautious awards in fertility-related claims. [96]. The court accepts that the first plaintiff’s loss of reproductive opportunity was a genuine consequence and that IVF presents 930 a reasonable remedial option. However, in light of competing medical factors and the partial causative link, the court awards RM50,000 under this head. Any additional costs beyond this amount shall be the first plaintiff’s responsibility, as part of her personal decision to pursue further fertility treatment, 935 consistent with the cautious approach to such awards outlined in Ogedegbe (supra). Legal Costs and Incidental Expenses [97]. The plaintiffs claimed a total of RM192,216, comprising RM150,000 in legal fees and RM42,216 in incidental litigation 940 expenses, which included expert costs, transcript fees, travel, and witness allowances. They justified the amount on the basis of the complex medico-legal nature of the case, the need to engage medical experts, and the number of hearing days involved. The plaintiffs also highlighted the absence of 945 conditional fee structures or litigation insurance in Malaysia, arguing that these costs were reasonably and necessarily incurred. [98]. The defendants, however, contended that the total claim was excessive and disproportionate, noting that this was not a 950 classical medical negligence case and proposing a RM10,000 cap for all legal and incidental costs. [99]. Upon careful consideration, the court finds merit in both the nature of the issues raised and the need for expert involvement. However, to maintain proportionality, the court 955 awards a global sum of RM40,000, including legal costs and disbursements. Judgment Interest [100]. The court awards interest at 5% per annum on the judgment 960 sum, in accordance with Practice Direction No. 1 of 2012 and Rule 60 of the Rules of Court 2012. Interest shall run as follows: (i) on general damages, from the date of service of the writ to the date of judgment; (ii) on special damages, from the date of the incident to judgment; and (iii) on the total sum, from 965 judgment until full satisfaction. Dated : 29 July 2025 970 [MOSES SUSAYAN] JUDGE HIGH COURT IN MALAYA AT IPOH, PERAK 975 980 For the Plaintiffs : P.A. Sharon 985 Advocates and Solicitors [Messrs Palani, Ammal & Co] Puchong, Selangor For the Defendants : Norazlinawati Mohd Arshad 990 (together with Siti Hanida Abd Kadir) Federal Counsel [State Legal Advisor’s Chambers] Civil Unit 995 Ipoh, Perak (Notice: This Grounds of Decision is subject to official editorial revision) Headnotes 1000 TORT – Negligence – Duty of care – Pregnancy in workplace – Employer’s duty to assess occupational risks upon disclosure of pregnancy – Failure to conduct risk assessment under Occupational Safety and Health Act 1994 (OSHA) – Whether statutory duty breached – Whether light duty unjustifiably denied despite oral 1005 request – Whether internal policy requiring written application too rigid – Duty of proactive response under OSHA sections 15 and 16 – Whether breach of duty materially increased risk of miscarriage. TORT – Negligence – Causation – Link between employer’s omissions and miscarriage – Application of ‘material contribution’ test 1010 – ‘But for’ test inapplicable where multiple contributing factors – Expert evidence supports workplace stress as material contributor – Trifling contributions excluded – Legal threshold of causation met. TORT – Negligence – Psychiatric injury – Whether moderate depression following miscarriage was foreseeable – Emotional harm 1015 not too remote – Expert psychiatric evidence unchallenged – Liability established. TORT – Vicarious liability – Public hospital staff – Government of Malaysia liable under Government Proceedings Act 1956, section 5 – Acts of supervisors within scope of public duties – Systemic 1020 institutional failures established.