1. ) Mohammad Aswat Ikram Bin Hat v 1. ) Sunway International Hotels & Resorts Sdn. Bhd. (WA-23NCvC-18-03/2020)

MOHAMMAD ASWAT IKRAM BIN HAT

RINI SUNARTI BINTE AB RASHID (SINGAPORE NRIC NO.: S7826115C) ... PLAINTIFFS

SUNWAY INTERNATIONAL HOTELS & RESORTS SDN. BHD (Registration No.: 199701015157)(430654-V)

SUNWAY PUTRA HOTEL SDN. BHD (Registration No.: 201101010136)(938275-T) ... DEFENDANTS GROUNDS OF JUDGMENT [After Full Trial]

The Plaintiffs filed this suit against the Defendants for breach of contract and/or negligence. 14/08/2025 13:30:06

After a careful consideration and on the balance of probabilities, I find that the Plaintiffs have successfully established their case against the Defendants. I therefore decided in favour of the Plaintiff. However, I have awarded only a part of the damages they sought. This is the ground for this decision. i. Background Facts 3. The Plaintiffs are a married couple. They are Singaporean nationals living in Johor Bahru. They had two sons, Adel (“the Deceased”) and Aneeq.

The 1st Plaintiff is a Baggage Handler with Singapore Air Terminal Services Ltd while the 2nd Plaintiff works as a Call Centre Executive at Sengkang Hospital.

The 1st Defendant is a company incorporated in Malaysia and engages in the business of providing management, advisory, supervisory and other related services for the operation and management of hotels.

The 2nd Defendant is and was at all material times the operator of the Sunway Putra Hotel (“the Hotel”) located at Sunway Putra Plance, No. 100 Jalan Putra, Chow Kit, 50350 Kuala Lumpur, Wilayah Persekutuan, Kuala Lumpur, Malaysia. The Hotel is owned by the 1st Defendant.

On 18.08.2018, the Plaintiffs together with their family checked into the Hotel. On the last day of their trip i.e., 21.08.2018, the Deceased together with his younger brother and cousin left for the pool accompanied by their two respective domestic helpers.

The pool area was under the watch of the Defendants’ employees.

Unfortunately, while the Deceased was enjoying himself in the Jacuzzi, he was suddenly sucked, immersed and stuck under the water. The domestic helpers started shouting for help whereupon the Defendants’ employees rushed to the Jacuzzi to try to pull the Deceased out from the bottom. However, they were unable to pull the Deceased out from the water because he was stuck underneath as a result of some form of suction. One of the domestic helpers went up to the Plaintiffs’ room to inform them of the unfortunate incident that happened to the Deceased. Upon hearing this, the Plaintiffs rushed down to the pool area where they noticed that the Deceased was floating with his face down in the Jacuzzi.

The 1st Plaintiff immediately rushed into the Jacuzzi to pull the Deceased out. The Deceased was visibly turning blue, bloated and unconscious.

The 1st Plaintiff then began administering CPR to try to revive the Deceased and at some point, afterward, one of the Defendants’ employees rendered assistance to the 1st Plaintiff by administering CPR to the Deceased.

The Deceased was later conveyed to the hospital however he was still blue and unconscious at that time. Upon arriving at the hospital, the Deceased was immediately placed in the ICU with multiple intubations for respiratory aid. Regretfully, the doctor informed the Plaintiffs that although the Deceased was still breathing, he was brain dead with no prospect of being resuscitated. At that point, the Plaintiffs made the heart wrenching decision which was to pull the plug to release the Deceased from further agony.

Even though Five (5) years have passed since the tragic incident, the 2nd Plaintiff still suffers from severe PTSD and Major Depressive Disorder for which she requires regular medical treatment. The 2nd Plaintiff has been receiving continuous treatment at Sengkang Hospital, the same hospital where she has been working.

Following the above unfortunate incident, the Plaintiffs filed this action against the Defendants for breach of contract and/or negligence. ii. The Trial 15. During the trial, the Plaintiffs and the Defendants each called four (4) witnesses as follows: PW1 2nd Plaintiff PW2 1st Plaintiff PW3 Dr. Brian Yeo Kah Loke PW4 Rinadia bte Ab. Rashid DW1 Sangkar A/L Rajoo DW2 Norhisham bin Bujang DW3 Mohd. Asraf bin Ibrahim DW4 Dr. Mohammad Fitri bin Zainuddin iii. Issued to be Tried 16. Before the Trial, the Parties had agreed on the issues to be tried as follows: - - Whether the 1st and/or 2nd Defendants as owner and/or operator of the Hotel owed a duty of care to the Plaintiffs and their family members as paying guests of the Hotel, to exercise reasonable care and skill to ensure that the Hotel premises and facilities available for use by paying guests, are in good and serviceable condition, fit and safe for use by paying guests including the Plaintiffs and their family members. - Whether it was reasonably foreseeable on the part of the 1st and/or 2nd Defendant that if the Hotel premises or any part thereof or any of its facilities are defective and/or unsafe for use, the Plaintiffs and paying guests lawfully on the Hotel premises would be exposed to risks of injury and/or death. - Whether the 1st and/or 2nd Defendants were in breach of contract and/or negligent in failing to exercise reasonable care and skill to ensure that the Hotel facilities, in particular, the Jacuzzi was in a fit and safe condition to be used by the Plaintiffs and their family members and whether sufficient notice and/or warning was given by the Hotel’s staff regarding the restriction of usage of the Jacuzzi for guests below 18 years of age. - Whether the Jacuzzi at the Hotel’s premises was defective and unsafe for use in that the round-metal anti-vortex cover of the Jacuzzi pool was faulty and malfunctioned as it was not locked or held in place so as to prevent suction which caused the Deceased to be drowned in the Jacuzzi and/or pool. - Whether the death of the Deceased was wholly and/or substantially caused by and/or contributed by his own negligence and/or by the negligence, failures and omissions of the 1st and/or 2nd Plaintiffs. - Whether the Plaintiffs suffered loss and damage including aggravated damages by reason of the death of the Deceased due to the breach or breaches of contract and/or duty or negligence on the part of the 1st and/or 2nd Defendants, and if so, what should be the reasonable quantum of damages to be awarded to the Plaintiffs.

The Plaintiffs claimed that the Defendants owed duties to the Plaintiffs in contract and torts. It is my finding that the Plaintiffs had successfully proved and established their claim on the balance of probabilities. I shall address the issues in turn.

The law is trite that the Plaintiffs bear the burden of proof to prove their claim against the Defendant. I refer to Section 101(1) and 103 of the Evidence Act 1950 as follows: “101. Burden of proof

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

In the Federal Court case of Inas Faiqah Helmi (A Child Suing Through Her Father and Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885, Abdul Hamid Embong FCJ (as he then was) in delivering the judgment of the court held: “The standard of proof in civil cases is the legal standard to which a party is required to prove its case, namely on a balance of probabilities. In civil litigation, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not.”. Whether the Defendants owed duties in tort and contract towards the Hotel Guests

In this case, the Plaintiffs’ claim against the Defendants is founded on both contract and torts. The Plaintiffs referred to the case of Heng Lee Suan v YTC Hotels Ltd (trading as Paramount Hotel) SGHC 111 where a duty is explained as follows: “The plaintiff’s claim was based on contract (as a paying guest of the Hotel) and in tort (as an invitee of the defendant who owed her a duty of care since she was an occupier of the Hotel). There can be no dispute that the defendant’s obligations to the plaintiff as their contractual entrant was to take reasonable care to ensure that the Hotel’s premises were safe for her and the purposes of its other guests.”.

The Plaintiffs further referred to the case of Projek Lebuhraya Utara-Selatan Bhd v. Kim Seng Enterprises (Kedah) Sdn Bhd [2013] 5 MLJ 360 as follows: “Negligence is a tort and three things must be proved to support the claimant’s claim: a) that the defendant owes the claimant plaintiff a duty of care; b) that the defendant is in breach of that duty of care; and c) that the claimant plaintiff suffers damage as a result of that breach of duty and that damage is not too remote.”.

Based on the above, the Plaintiffs submitted that the duty is therefore a specific application of the general duty of care test.

The Plaintiffs further submitted that ensuring that a Jacuzzi is safe for guests to use falls within the duty of care. It is plainly apparent that the danger from the suction power of the Jacuzzi is an unusual danger which a notional, reasonable person would not be aware of. The hotel guest would only see that the Jacuzzi is working and open for use. One would then just step into the Jacuzzi to enjoy it. One would not be aware of the hidden danger within and beneath the water, neither would one suspect that there is a hidden danger beneath the water.

The Plaintiffs further referred to the Federal Court case of Lee Lau & Sons Realty Sdn Bhd v. Tan Yah & Ors [1983] 2 MLJ 51 where the Federal Court held: “And with respect to such a visitor at least, we consider it is settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damages for unusual danger which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact...".

The Plaintiff submitted that the obligation of the Defendants as the hotel operator to take reasonable care and skill for the safety of the guests surely must extend to preventing the guests from being exposed to such hidden and unusual dangers.

I agree with the Plaintiffs on this. The Defendants as the hotel operator owed contractual duties and responsibilities to the Plaintiffs as well as common law duty of care. Whether there was a breach of contract and/or negligence on part of the Defendants that led to the death of the Deceased

The Plaintiffs submitted that the Deceased’s drowning in the Jacuzzi was caused by the breach of contract and/or duty and/or negligence of the Defendants.

Firstly, the Plaintiffs submitted that the suction hole in the Jacuzzi was covered and locked with the round anti-vortex cover which had to remain secured at all times. This was confirmed by DWS1 during the cross examination as follows: “PC …the cover is fixed to the suction hole with the four screws. Yes, sure. … The four screws are tighten to make sure that the cover is firmly in place, correct? Correct Sir. And these cover at the suction hole is supposed to be firmly emplace during at all times, right? Yes sir.” [Refer Notes of Evidence, Page 901, Line 1 – 11]

DW1 also confirmed the consequences if the cover of the suction hole was removed or dislodged from the suction hole as follows: “PC But if the cover is loose or if it is removed, … Then suction hole become exposed? Yes. And when the suction hole is exposed, right that’s when the pressure from the suction hole were then pull then victim down and then he got stuck to the suction hole. Would that be accurate? Yes Sir, confirm. PC So this pressure in the suction hole is very strong, that’s why you keep it covered, correct? Yes, of course.” [Refer Notes of Proceedings, Page 863,

DW1 further confirmed the cause of drowning as follows: “PC So, did you then find out what was the cause of this person suffering the drowning in the jacuzzi. Did you find out? DW1 Yes, based on the suction pressure of jacuzzi. That is the one of the main reason.” [Refer Notes of Proceedings, Page 854,

Based on the above, I find it is undeniable that the Deceased’s drowning was caused directly by the defect in the Jacuzzi at which the anti-vortex cover was removed or dislodged from the suction hole.

The Jacuzzi was under the direct control of the Defendants. It was therefore the Defendants’ responsibility to ensure that the Jacuzzi was safe and fit for use by the hotel guests.

The Defendants on the other hand alleged that they had undertaken regular maintenance work. The Defendants also alleged that the Deceased himself was the one who removed the vortex cover. Therefore, the blame cannot be put solely on the Defendants. Rather, the Defendants invoked a contributory negligence which led to the Deceased’s death.

I will now look into the Defendants’ allegations critically. Firstly, the regular maintenance work as alleged by the Defendants. The Defendants relied on a Testing and Commissioning Report by Vinfaat Sdn Bhd (“the Testing Report”).

A careful perusal of the Testing Report would show that it was issued in November 2017 i.e., 9 months before the drowning incident happened. Apart from that, I find that the Testing Report was not for the regular maintenance work. Moreover, the Testing Report did not indicated any maintenance or inspection work done on the anti-vortex cover of the Jacuzzi.

There was a clear admission by DW1 during the cross examination as follows: “PC Ok, so this document you therefore agree that does not contain any work in respect of checking on maintenance of cover of the suction hole of the jacuzzi, correct? DW1 Yes, this one. The Vinfaat will check all the system, the piping system plus the pump system. I understand but they don’t do maintenance work on the cover of the suction hole into jacuzzi, right? No.” [Refer Notes of Proceedings, Page 846,

The Defendants further referred to maintenance records of the swimming pool and Jacuzzi (“the Maintenance Records”).

However, the Plaintiffs submitted that the Maintenance Records did not showed any maintenance or inspection work done on the anti-vortex cover of the Jacuzzi. Instead, the Maintenance Records set out generic and routine work done months on end without dealing with the issue of the defective anti-vortex cover.

DW1 testified during the cross examination as follows: “PC Well, so Mr Sangkar. Can I just ask you to confirm, if you look at all these maintenance record which you have produced, we don’t see any entry in here which says that certain maintenance or repair work had been done to the cover of the suction hole at the jacuzzi, correct? Yes” [Refer Notes of Proceedings, Page 851,

Based on the above, DW1 agreed that if the maintenance or repair work was conducted on the anti-vortex cover, it would have been reflected in the Maintenance Records. However, it is my finding that there was nothing in the Maintenance Records that showed a maintenance or repair work had been conducted on the anti-vortex cover.

The Defendants further alleged that a daily inspection was conducted by the maintenance department on all the system and facilities, and it was done at the beginning of the three daily shifts.

However, not a single shred of evidence was produced on the alleged daily inspection. Therefore, the Court has no other option but to reject such allegation.

Based on the above, I find that the Defendants had failed to conduct regular maintenance on the Jacuzzi especially on the anti-vortex cover to ensure that the Jacuzzi was safe to use for the Hotel guests including the Plaintiffs and the Deceased.

Having found that the defective anti-vortex covers directly caused the Deceased to be struck and drown in the Jacuzzi, I will now look in the allegations by the Plaintiffs that the Defendants had failed to take preventive measures to prevent the Deceased from further drowning.

The Plaintiffs submitted that when the Deceased was sucked under the Jacuzzi, it created an emergency situation. The immediate response that should be taken by the Defendants’ employees was to switch off the Jacuzzi. This would have immediately deactivated the pressure from the suction hole which would probably have prevented his drowning.

During the cross examination, DW1 and DW3 admitted that the immediate step to be taken during the emergency was to switch off the Jacuzzi. This can be seen as follows: Mr. Sangkar, when an emergency happens in the jacuzzi while in operation that some one gets sucked to the bottom, right would you agree that the first thing to do would be to switch off the jacuzzi to stop the operation of the jacuzzi. So that the suction will also stop? Correct? Yes Sir, sure must be.” [Refer Notes of Proceedings, Page 940, Line 2 – 6] “PC So kalau kita ambil ini dulu, respond to all situation safely and promptly, this would require Encik at the emergency, when the emergency happened at the jacuzzi, to promptly switch off the switch. Betul tak? This is to promptly respond to that situation, betul? Setuju.” [Refer Notes of Proceedings, Page 1104,

Further, DW3 also testified that the switch was located very close to the Jacuzzi: “PC So can you tell his Lordship where is the switch of this jacuzzi? Beside the jacuzzi. Beside means where, it is not on the jacuzzi? DW3 No. Outside, just nearby. Sebelah jacuzzi. Beside of jacuzzi. Ok, so it is very easy to just go and switch it off right, correct Encik Asraf? Betul, easy.” [Refer Notes of Proceedings, Page 1093 – 1094, Line 19 & 6 respectively]

As this matter is highly pertinent, I further clarified with DW3 on the location of the switch as follows: “Court Jakuzi tu, suis dia ni jenis suis yang tepi dia ataupun jauh daripada, makna dia tepi dia sebab ada hotel ni, jakuzi dia suis dia adalah kita, kalau kita nak pakai, kita tekan baru dia fungsi. Adakah ini jenis yang macam tu ataupun ini suis dia berada di satu tempat macam suis lampu bilik macam tu? DW3 Untuk suis jakuzi macam Yang Arif beritahu tadi, iaitu yang nombor dua, di mana hotel Sunway Putra yang pakai sekarang, suis dia berasingan tetapi berdekatan dengan jakuzi. Court Berapa jauh daripada jakuzi, kalau kata berdekatan, berapa dekat tu? Dalam anggaran meter ke? DW3 Kalau satu depa, anggaran saya lebih kurang dalam satu depa.” [Refer Notes of Proceedings, Page 1117,

The Plaintiffs then referred this Court to the Job Descriptions issued by Sunway Putra Hotel which can be found in Defendants’ Supplementary Bundle of Documents (II) at page 2 – 4 which stated that emergency response is part of the operational duties of DW3 as a pool attendant.

The Plaintiffs submitted that DW3 had failed to comply with the operational duties, specifically emergency response. If DW3 had done so, the Deceased’s drowning would have probably been averted.

The Plaintiffs further referred this Court to the Police Report dated 21.08.2018 by DW3 where DWS3 said he and Aidil struggled for almost 10 minutes to try to pull the Deceased out of the water.

Based on the earlier testimony by DW1, the pressure from the suction hole was so strong that the suction hole must be covered. Should the Jacuzzi have been immediately switched off, the pressure at the suction hole would be deactivated and the Deceased would not have remained stuck at the suction hole underneath the water.

The fact that DW3 was struggling for almost 10 minutes and did not switch the Jacuzzi off clearly indicated that the Defendants’ pool attendants had failed to discharge their responsibility in effecting the emergency response, resulting in the death of the Deceased.

All of the above indicated that the Defendants had no safe system, and their employees were not familiar with the emergency procedures. Therefore, I found that the liability has been clearly established against the Defendants for breach of contract and negligence.

Next, the Defendants in their defence relied on rules and regulations placed on signboards which they characterized as warning signs.

I shall first discuss the contents of the signboard. Refer to page 1 of the Defendants’ Bundle of Documents, there was indeed such a signboard for swimming pool that states, among others, “No Lifeguard on Duty”.

As for the Jacuzzi, there was no clear image of the notice provided by the Defendants. However, the Defendants in their defence pleaded that there is such a notice saying that persons under the age of 18 were prohibited from using the Jacuzzi.

Clearly, the Defendants were trying to escape liability by placing the warning sign. However, for the Defendants to be able to do so, the warning sign must be clear and explicit.

This is governed by the contra proferentum rule. I refer to the Federal Court case of Malaysian Motor Insurance Pool v. Tirumeniyal a/l Singara Veloo [2020] 1 MLJ 440 that held that: “Coming to the contra proferentum rule, it provides that where a term is ambiguous, such ambiguity ought to be construed against the party who prepared it. In general contracts, common law courts have been quick to apply against ‘unfair terms’ like exclusion or exemption clauses. But the rule sees particular application in insurance contracts. This point is aptly summarized in Mac Gillvray on Insurance Law (12th Ed), at pp 317 – 318: The common law rule of construction, that verba chartarum forties accipiuntur contra proferentum, means that ambiguity in the wording in a policy, or slip, is to be resolved against the party who prepared it. It has been said that a party who proffers an instrument cannot be permitted to use ambiguous words in the hopes that the other party understand them in a particular sense and that the court which has to construe them will give them a different meaning, but the ambiguity usually arises inadvertently from including conflicting standard printed clauses in the same policy.” [Emphasis added]

I also refer to the case of Chin Hooi Nan v. Comprehensive Auto Restoration Services Sdn Bhd [1995] 2 MLJ 100 where the appellant in that case left his car to be waxed and polished by the respondents and was given a receipt to claim for his car. At the back of the receipt, a clause provided as follows: “the company is not liable for any loss or damage whatsoever of or to the vehicle, its accessories, or contents. Vehicles and goods are at owner’s risk”. The car was damaged while being driven by an employee of the second respondent. The Magistrate held that the exclusion clause exonerated the respondents. On appeal, the High Court allowed the appellant’s appeal and held that an exclusion clause, however wide and general, did not exonerate the respondents from the burden of proving that the damage caused to the car was not due to their negligence and misconduct.

In the case of Premier Hotel Sdn Bhd v. Tang Ling Seng [1995] 4 MLJ 229, the respondent stayed at the hotel owned by the appellant. One afternoon he left his room key with the receptionist who gave it to an unknown person. Upon the respondent’s claim for the loss of his personal belongings, the appellant relied on an exclusion clause which states that “the Hotel will not assume responsibility for valuables or money lost from the room”. The Court held that these general words would not ordinarily protect a party from liability for negligence. To be effective, the words must be sufficiently clear, either by referring to negligence or by using some other expression such as “however caused”.

After a careful consideration of the evidence presented before me, I find that the Defendants have failed to prove that the singborad for the Jacuzzi has indeed stated what they had pleaded since the photograph of the signboard tendered by the Defendants was blurry.

Next, the Defendants also failed to prove that the Jacuzzi signboard was prominently placed at or near the Jacuzzi area so that guests using the Jacuzzi would not have overlooked it. The photograph of the signboard once again failed to show or specify the exact location of the signboard.

Furthermore, the Defendants had never stopped or prohibited the Deceased from using the Jacuzzi at that time if truly persons below 18 were prohibited from using the Jacuzzi.

Based on the CCTV clips, it did not show that any of the Defendants’ employees spoke with the Deceased or the domestic helpers when he was in the Jacuzzi.

DW3 also did not state in his police report that he had warned the Deceased not to use the Jacuzzi as it was against the rule. If the Jacuzzi signboard was meant to be a strict policy for an exclusion of liability notice, it would be very important for DW3 to specifically point this out when making a formal statement in a police report.

Based on the above, I find that the Defendants could not be excluded from liability and the defence based on the signboard must fail.

In conclusion, I find that the Plaintiffs have proved their case against the Defendants. Therefore, the Defendants are liable on a 100% liability.

Having proved that the Defendants were liable, the Plaintiffs submitted that they were entitled to general damages for pain and suffering for the deep-seated mental trauma with symptoms of PTSD and major depressive disorder.

The Plaintiffs referred to the House of Lords case of Alcock & Ors v. Chief Constable of South Yorkshire Police [1991] 4 All ER 90 where the House of Lords set out a three-limb test in order to establish a claim for damages for pain and suffering from nervous shock as follows: “…Accordingly, the plaintiff could only recover if (i) his relationship to the primary victim was sufficiently close that it was reasonably foreseeable that he might sustain nervous shock if he apprehended that the primary victim had been or might be injured, (ii) his proximity to the accident in which the primary victim was involved or its immediate aftermath was sufficiently close both in time and space and (iii) he suffered nervous shock through seeing or hearing the accident or its immediate aftermath…”.

To summarize, a nervous shock claim is permitted if there is a proximity between the plaintiff and the victim in as many dimensions as possible.

The Plaintiffs submitted that they had fulfilled the first limb of the test in which there was a relationship between the Plaintiffs and the Deceased as parents and child.

The Plaintiffs further submitted that there was a proximity of the Plaintiffs to the incident at the time of occurrence as well as its immediate aftermath.

The 1st Plaintiff saw the Deceased floating in the Jacuzzi. He then immediately rushed in to lift the Deceased out of the water in the Jacuzzi. He then frantically administering CPR to try to revive the Deceased. The 1st Plaintiff was therefore as close to the incident as he could possibly be.

As for the 2nd Plaintiff, she was at the scene experiencing the whole tragic incident firsthand. Her emotions fluctuated from hope to despair and from fear to anxiety. She then had to suffer the trauma of waiting at the hospital again with hope and despair and only to be told that she should let her son go. Again, her proximity to the Deceased’s demise was as pronounced as it could possibly be.

Based on the evidence presented before this me, the 1st Plaintiff suffered mental trauma due to the tragic death of his son and the profound effect that it had on him.

On the other hand, the 2nd Plaintiff suffered Major Depressive Disorder with the deep-seated and persistent symptoms which the medical experts characterized as treatment-resistant, along with PTSD.

By relying on cases quoted by the Plaintiff, Siew Pick Chiang v Hyundai Engineering and Construction Co Ltd and another [2016] SGHC 266 [Tab L, PBOA] (RM281,600.00), Muhamad Mustagim bin Jidin v Mohd Zulfadhli bin Radzali & Ors [2017] MLJU 862 [TAB M, PBOA] (RM100,000.00), and Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 [TAB N, PBOA] (RM105,600.00). I find no reason to deprive Plaintiff of this. For the above, I grant the general damages for pain and suffering to the 1st Plaintiff of RM30,000.00 and RM100,000.00 to the 2nd Plaintiff. Bereavement 79. The Plaintiffs claim for bereavement was made under Section 7 of the Civil Law Act 1956. However, since the unfortunate incident occurred on 18.08.2018, the pre-amendment version of the Civil Law Act 1956 shall apply.

Section 7(3A) of the Civil Law Act 1956 states that a claim for damages for bereavement shall be ten thousand ringgit.

Section 7 (3C) of the Civil Law Act 1956 further states that where there is a claim for damages under paragraph (3B)(b) for the benefit of the parents of the deceased, the sum awarded shall be divided equally between them.

Therefore, I award the 1st Plaintiff RM5,000.00 for bereavement. Equally, I award the 2nd Plaintiff RM5,000.00 for bereavement. Damages for Loss of Enjoyment of Holiday 83. The Plaintiffs were also claiming for damages of RM500,000.00 for loss of enjoyment of the holiday. For this, I do not find any needs for this particular instance due to the obvious reason that the incident happened at the end of their holiday.

Therefore, the Plaintiffs’ claim for damages for loss of enjoyment of holiday is dismissed. Medical Expenses 85. The Plaintiffs submitted that as the claim for the medical treatment expenses were all properly and adequately supported, the claim should be allowed. The Plaintiffs claimed SGD 27,871.32 (RM98,107.00) for pre-trial medical expenses despite the facts that all payments were paid by 2nd Plaintiff’s employer, government subsidies, and the insurer.

The Defendants argued that the Plaintiffs did not incur the expenses for they were paid by government subsidies and insurance. They also distinguished Dr. Kok Choong Seng & Anor v. Soo Cheng Lin and another appeal [2018] 1 MLJ 685 and Eng Beng vLo Kok Jong [2023] SGHC 63 quoted by the Plaintiffs.

In fact, in the case of Eng Beng, there was an order made by the High Court for the Appellant to return the subsidies and grants recovered from the Respondent to the relevant authorities to demolish the argument that the Appellant would enjoy double recovery.

I agree with the Defendants on this due to the facts that the payment for the invoices were subsidized. As argued by the Defendants since there is no such indication by the Plaintiffs to return the subsidies should there be any award by this Court on this, no award would be granted for all subsidized payment.

A small fraction of the bills was indeed paid by the Medisave. However, as the Defendants put it, the Plaintiffs have not called anyone from the employer to verify the apportionment of contribution to the Medisave between the 2nd Plaintiff and her employer to this Medisave.

Thus, for this heading, the sum to be awarded to the 1st Plaintiff is SGD913.78 while the sum to be awarded to the 2nd Plaintiff is SGD26,383.05. Future Medical Expenses 91. Plaintiffs also claimed SGD 420,000.00 based on Dr Kwok's report, citing severe and treatment-resistant Major Depressive Disorder and PTSD.

The Defendants reminded this Court that Dr. Kwok was not called to testify. This has deprived this Court of the chance to listen directly from him as to the need for future medical treatment. They also cited DW4's testimony and claimed that the appropriate treatment is available in Malaysia. Thus, they argued that the award should be calculated based on Malaysian market rate.

While I agree that treatment must be done in Singapore for the convenience of the 2nd Plaintiff, I do not have any liberty of getting the details from the treatment doctor, Dr Kwok who was of the view that it would take up to 5 years and cost SGD390,000 for the treatment of the 2nd Plaintiff. Dr Kwok was never called as a witness. I thus, adopt the view of PW3 and DW4 that the actual treatment needs not go that long. I reduce it to 3 years treatment of SGD78,000 per year. As for the devices for nasal therapy, since this would be covered by subsidies, I see no reason to award this. Pre-Trial Loss of Earnings 94. The Plaintiffs claimed SGD 133,385.00, citing medical leaves and a monthly salary of SGD 3,700.00. However, I agree with the Defendants’ submission that the Plaintiffs did not prove the loss, citing a lack of pay slips and the contractual arrangement with the hospital she was working at. Loss of Earning Capacity 95. The Plaintiffs also sought compensation for loss of earning capacity, citing persistent symptoms and the inability to perform work. The Defendants argued that Plaintiffs did not establish a real risk of losing their job or getting a less-paid employment. They drew a distinction between loss of future earnings and loss of capacity. I agree with the Defendants on this. In fact, as submitted by the Defendants, there is no proof whatsoever tendered to support this loss of earning capacity. Hence, I dismiss the claim under this heading. Aggravated Damages 96. Plaintiffs sought RM400,000.00 for this by citing the Defendants' exceptional conduct. They cited M Badiuzzaman and others v Salma Islam and others [2023] SGHC 311 [TAB KK, PBOA] as their support.

The Defendants argued that aggravated damages are not intended to punish the Defendants. They cited Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 [TAB LL, PBOA] for the principle of general damages for the injured feeling, stress, anxiety, or disappointment. I agree with the Defendants that there is no justifiable reason to award aggravated damages in this case. Thus, I make no award under this. C. Conclusion

To sum up, this Court finds that the Plaintiffs have proved to this Court on the balance of probabilities that the Defendants are in breach of contract and/or negligence.

For purpose of currency exchange, I agree with the Defendants that the currency exchange applicable for the claim for pre-trial medical expenses ought to be the currency exchange at the time the cost was incurred and not the present currency exchange rates. Looking at the historical records of the currency exchange rates, I find that the rate of SGD1=RM3.30 would be reasonable for all expenses incurred pre-trial. As for the future expenses, I have adopted the rate of SGD1 = RM3.60 for all future expenses.

Therefore, I award the following damages to the Plaintiffs: a) The sum of RM30,000.00 only to the 1st Plaintiff as general damages for pain and suffering; b) The sum of RM100,000.00 only to the 2nd Plaintiff as general damages for pain and suffering; c) The sum of RM5,000 only to the 1st Plaintiff as bereavement pursuant to Section 7 of Civil Law Act 1956; d) The sum of RM5,000 only to the 2nd Plaintiff as bereavement pursuant to Section 7 of Civil Law Act 1956; e) The sum of SGD913.78 only to the 1st Plaintiff with the currency exchange rate of SGD1=RM3.30, for pre-trial medical expenses; f) The sum of SGD26,383.05 only to the 2nd Plaintiff with the currency exchange rate of SGD1=RM3.30, for pre-trial medical expenses; g) The sum of SGD234,000.00 only to the 2nd Plaintiff, with the currency exchange rate of SGD1=RM3.60, for future medical expenses; h) Interest; and i) Cost of RM70,000.00 to be paid by the Defendants to the Plaintiffs. Dated: 12th August, 2024 --------------------------------------------------------- YA DR. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For The Plaintiffs : Liew Teck Huat, Lim Qi Si, Ong Kang Nyong & Kathleen Samantha George Messrs Zaid Ibrahim Suflan T H Liew & Partners For The Defendants : Ho Kee Tong &Sukhdeep Singh Messrs Gan, Ho & Razlan Hadri Table of Authorities Cases Alcock & Ors v. Chief Constable of South Yorkshire Police [1991] 4 All ER 90 Chin Hooi Nan v. Comprehensive Auto Restoration Services Sdn Bhd [1995] 2 MLJ 100 cited M Badiuzzaman and others v Salma Islam and others [2023] SGHC 311 Dr Kok Choong Seng, and Ward v Malaysian Airlines System Berhad [1991] 3 MLJ 317 Dr. Kok Choong Seng & Anor v. Soo Cheng Lin and another appeal [2018] 1 MLJ 685 Eng Beng v Lo Kok Jong [2023] SGHC 63 Heng Lee Suan v YTC Hotels Ltd (trading as Paramount Hotel) SGHC 111 Hussain v New Taplow Paper Mills Ltd [1988] AC 514 Inas Faiqah Helmi (A Child Suing Through Her Father and Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885 Lee Lau & Sons Realty Sdn Bhd v. Tan Yah & Ors [1983] 2 MLJ 51 Malaysian Motor Insurance Pool v. Tirumeniyal a/l Singara Veloo [2020] 1 MLJ 440 Muhamad Mustagim bin Jidin v Mohd Zulfadhli bin Radzali & Ors [2017] MLJU 862 Ngooi Ku Siong and Another v Adi Abdullah [1985] 1 MLJ 30 Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 Premier Hotel Sdn Bhd v. Tang Ling Seng [1995] 4 MLJ 229 Projek Lebuhraya Utara-Selatan Bhd v. Kim Seng Enterprises (Kedah) Sdn Bhd [2013] 5 MLJ 360 Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 Sarawak Shell Bhd v The Owners or other persons interested in The Ship or Vessel The 'Red Gold' and another action [2011] 1 MLJ 239 Shearman v Folland [1950] 2 KB 43 Siew Pick Chiang v Hyundai Engineering and Construction Co Ltd and another [2016] SGHC 266