Zuasnita Binti Baharudin v Dr. Jovan Foo Loke Hon (AA-21NCvC-15-05/2021)

ZUASNITA BINTI BAHARUDIN 10 [NRIC NO.: 800306-04-5304]

HISHAMUDDIN BIN SHAHARUM [K/P. NO: 670203-08-5319] Kedua-duanya mendakwa sebagai ibu sah dan ayah sah dan 15 orang tanggungan sah bagi HIEJJAZ FADZLIE BIN HISHAMUDDIN (MY KID No. 170616-08-0451) Seorang kanak-kanak (“simati”) … PLAINTIFFS 20 AND GOVERNMENT OF MALAYSIA & ORS … DEFENDANTS GROUNDS OF JUDGMENT 25 INTRODUCTION [1]. This is a claim by the plaintiffs against the defendants for damages arising out of medical negligence at Hospital Raja Permaisuri Bainun, Ipoh, which led to the death of the deceased child, Hiejjaz Fadzlie Bin Hishamuddin, on 21 May 2018. The plaintiffs seek general damages, 30 24/04/2025 15:11:36 AA-21NCvC-15-05/2021 Kand. 84 S/N fZcqnOUB8EW22cMqdzo14g special damages, aggravated damages, vindicatory and exemplary damages. Background facts [2]. The deceased, an 11-month-old child, was taken to the hospital on 5 April 2018 with symptoms of fever, cough, and difficulty breathing. 35 Despite clear signs of respiratory distress, there were delays in medical intervention. The treatment administered was inadequate and lacked proper escalation to a specialist facility. The child suffered for over a month with multiple complications before succumbing to septic shock and passed away on 21 May 2018. 40 [3]. The defendants have admitted liability in this matter, and the current proceedings concern only on assessment of damages. [4]. I will address the assessment of damages in the following sequence: a) Special damages; b) General damages; 45 c) Aggravated damages d) Exemplary damages; and e) Interest and Costs Special Damages [5]. The principles governing special damages require the plaintiffs to 50 establish actual pecuniary loss resulting from the defendants’ actions. In Jub’li Mohamed Taib Taral & Ors v. Sunway Lagoon Sdn Bhd [2001] S/N fZcqnOUB8EW22cMqdzo14g 4 CLJ 599; [2001] 6 MLJ 669, the High Court held that a plaintiff cannot merely enumerate damages but must substantiate them with evidence. Similarly, the Federal Court in Sam Wun Hoang v. Kader Ibramshah 55 [1981] 1 MLJ 295; [1980] 1 MLRA 712; [1981] CLJU 103, reaffirmed that special damages must be quantifiable, such as medical bills or lost earnings. [6]. However, the courts recognise that a plaintiff is not expected to maintain detailed records of every expenditure. Both documentary and 60 oral evidence can be relied upon to substantiate such claims, as provided under Section 3 of the Evidence Act 1950. In Rohgetana Mayathevan v. Dr Navin Kumar & Ors and Other Appeals[2017] 4 MLJ 102; [2017] 3 MLRA 53; [2017] 3 CLJ 311, the Court of Appeal confirmed that once special damages are pleaded and particularised, they may be proven 65 through oral or documentary evidence, provided the amounts claimed are reasonable and justifiable. This principle was reinforced in Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 CLJ 825; [2014] MLJU 1922; [2015] 1 MLRH 234; [2014] AMEJ 1460; [2015] 1 PIR 2, where the court held that the absence of receipts does not 70 automatically negate a claim for special damages. [7]. Furthermore, courts emphasise the principle of reasonableness when assessing such claims. Expenses, including travel costs, medical supplies, and caregiving by family members, may be awarded based on credible testimony alone if the sums claimed are reasonable. In 75 Sivalingam a/l Periasamy v. Periasamy & Anor [1995] 3 MLJ 395; [1995] 2 MLRA 432; [1996] 4 CLJ 545; [1996] 3 AMR 3506, the court found that the absence of challenge by the 1st defendant to the plaintiff’s oral evidence was determinative, permitting the court to accept the claims S/N fZcqnOUB8EW22cMqdzo14g as truthful. Therefore, an objection based solely on the lack of receipts, 80 without disputing the plaintiff’s credibility, is insufficient to reject a claim for special damages. Accordingly, as long as the plaintiff provides credible evidence, the claim should be awarded in full. [8]. The plaintiffs have claimed the following special damages: a) Fee for specialist opinion: RM 4,000.00 85 b) Fee for court appearances of specialists: RM 3,500.00 c) Funeral expenses: RM 4,680.00 d) Bereavement under the Civil Law Act 1956: RM 10,000.00 [9]. The defendants submitted that the plaintiffs’ claim for the specialist 90 opinion fee and bereavement claim was reasonable but objected to the funeral expenses due to the lack of receipts and contested the expert witness’ court appearance fee. However, the court finds these objections to be without merit for the following reasons: a) The plaintiffs were reasonably entitled to call an expert 95 witness to support their case, particularly given the complexity of the medical issues involved. In Pyu Pyu Ma v. Dr Lim Soo How & Ors [2019] MLRHU 1774; [2019] 11 MLJ 628 ; [2024] MLRHU 1867; [2019] 2 PIR 44, the court recognised the necessity of expert testimony in medical negligence cases. 100 The expert witness testified that his court attendance fee was RM 3,500.00, and there was no direct challenge by the defendants to this evidence. Furthermore, I find the amount to S/N fZcqnOUB8EW22cMqdzo14g be reasonable and justified; therefore, RM 3,500.00 is allowed as part of special damages. 105 b) The 1st plaintiff, in the witness statement, initially stated RM5,000 for funeral expenses but later in the supplementary witness statement clarified that the actual amount spent was RM4,680, covering transportation, burial, religious rites, and a gravestone. The 2nd plaintiff confirmed these expenses. In 110 Pang Ah Chee v. Chong Kwee Sang [1985] 1 MLJ 153; [1985] 2 CLJ 221; [1984] 1 MLRA 483, the court recognised oral testimony in funeral expense claims. The defendant’s challenge, suggesting RM 1,000.00 due to a lack of receipts, is unreasonable given current funeral costs, which the court 115 can take judicial notice of, whether for Malay, Chinese, or Indian funerals. Accordingly, RM4,680.00 is deemed fair and should be awarded. [10]. Accordingly, the special damages awarded amount to 120 RM22,180.00. General Damages [11]. General damages are awarded to compensate a plaintiff for non-pecuniary losses, such as pain, suffering, hardship, discomfort, mental distress, and loss of amenities of life. Unlike special damages, which 125 require precise quantification, general damages are assessed based on judicial discretion, fairness, and reasonableness, considering the circumstances of each case. S/N fZcqnOUB8EW22cMqdzo14g [12]. The principles of negligence in medical malpractice cases differ from those in ordinary negligence claims. In Dato’ Dr Thuraisingam & 130 Anor v. Sanmarkan Ganapathy & Anor [2015] 6 MLRA 261; [2016] 3 MLJ 227; [2015] 8 CLJ 248; [2015] 6 AMR 417 (refd), the Court of Appeal held: “(3) The principles of negligence related to medical negligence are not based on the same criteria as ordinary negligence 135 cases. This distinction must be kept in mind to appreciate the distinction, approach and compromises case laws from time to time advances in relation to medical negligence jurisprudence” 140 [13]. While courts may refer to the Compendium of Personal Injury Awards 2018 as a guideline, it does not restrict judicial discretion. Judges retain the authority to depart from the compendium when case law or factual circumstances warrant a higher or lower award. This ensures that damages remain fair and just, reflecting the unique impact of injuries on 145 individual plaintiffs. [14]. The assessment of general damages must consider the decline in the purchasing power of money and the increasing cost of living. In Phuah Jee Suan v. Nila Vasu Pillai [1973] CLJU 110; [1973] 1 MLJ 186, Justice Choor Singh of the Court of Appeal in Singapore held that courts should 150 account for permanent changes in the real value of money when awarding compensation. His Lordship referred to Wharton v. Sweeney 105 Sol Jo 887, where the court emphasised that past awards must be adjusted to reflect economic realities, ensuring that plaintiffs receive just compensation. These were the words of Justice Choor Singh: 155 S/N fZcqnOUB8EW22cMqdzo14g “The other matter which requires consideration is the question of changes in the value of money which has been often termed as the decrease in the purchasing power of the dollar or the increase in the cost of living over the years. Leaving authority aside, both principle and common sense require that the 160 Courts, when they assess an award of money, which is to compensate a plaintiff for the damage caused to him by his injuries, should take into account large and comparatively permanent changes in the real value, i e in the purchasing power, of money. If one tries to assess an award for personal 165 injuries today, and looks for guidance to an award made twenty years ago in a comparable case, the decline in the real value of money must be taken into account. The matter does not rest only on common sense and principle. There is considerable authority for this proposition. In Wharton v. Sweeney 105 Sol 170 Jo 887, Ormerod LJ referred to the question in these words: It is well that there should be some consistency, and the amounts awarded in the past are a useful and general guide - bearing in mind the variation of 175 circumstances and bearing in mind too - and this is important - the changes in the value of money over the years. And in Aikan v. Port of London Authority [1963] 1 Lloyd's Rep 180 44, Willmer LJ said: Our attention was drawn to other cases where this Court has had to deal with similar injuries sustained. They were mostly cases decided some ten or twelve 185 years ago... As was pointed out by Mr. Marven Everett, some allowance has to be made for the fall S/N fZcqnOUB8EW22cMqdzo14g in the value of money since these cases were decided. He might, I think, have gone on to observe that in any damages awarded now allowance 190 should be made for the possibility that the value of money may continue to fall in the future. In Sands v. Devan 1945 SC 380, Lord Normand said, 'Since we must perforce measure the damage in money, we must, I think, 195 take account of large and relatively permanent variations in the value of money.' And Lord Moncriff added, 'As regards what falls to be paid in money the Court must take note of changes in the value of money.' 200 [15]. The assessment of general damages must be guided by fairness and reasonableness rather than an arbitrary balancing between plaintiffs and defendants. In Lim Eng Kay v. Jaafar Mohamed Said [1982] 1 MLRA 71; [1982] 2 MLJ 156; [1982] CLJ (Rep) 190 (refd), the Federal Court rejected the argument that high awards should be limited due to 205 public policy concerns, such as increased insurance premiums. The court ruled that damages must be assessed based on the plaintiff’s suffering rather than external economic factors. His Lordship Salleh Abas FJ said: [8] …Counsel for the appellant submitted that this amount is excessive and too over-generous to be a fair sum to 210 compensate the respondent for the injuries he received… he contended that the award cannot stand because it is not consistent with public policy in that insurance companies who have to bear the burden of high awards may eventually pass this liability to the general public by increasing rates of 215 insurance premium. … … S/N fZcqnOUB8EW22cMqdzo14g [12] We accept the speech of Lord Scarman to be the law governing the appellant's submission in that public policy consideration is not a relevant matter which a Judge should 220 take into account when making an assessment of damages. Public policy is always double edged. If high awards would lead to increase in rates of insurance premium and so are against public policy, surely high rates of premium may also promote good and careful driving, not to mention the probability of 225 decrease in the number of people owning cars and also the probability of decrease in road accidents. Are these not for the benefit of the public? [16]. The Privy Council, in Attorney General of St Helena v. AB & Ors 230 (St Helena) [2020] UKPC 1, reaffirmed that fairness to defendants does not require an artificial reduction in damages, as compensation should reflect the actual harm suffered. Lord Briggs states this: “32. There were veiled suggestions in the submissions of Miss Harrison for the Attorney General that the Board should have 235 regard to the fact that a rise in the level of PSLA (pain & suffering & loss of amenities) damages awarded against the Government of St Helena might lead to a corresponding scarcity in its resources for provision of its other services and activities on the island.

In the Board’s view this particular contest misses the point. Fairness or justice to defendants is not about an individual defendant, but about defendants as a whole. They may be governmental, they may be multinational corporations or private 245 individuals, insured or uninsured, rich or poor, solvent or insolvent. The cost to society of a fault-based system of defendant liability for causing pain and suffering may well have S/N fZcqnOUB8EW22cMqdzo14g a bearing upon the level of compensation for PSLA which society may regard as fair, just and reasonable, but the concept 250 of fairness to defendants does not require a form of equitable balancing of the type contended for by the Attorney General in his written submissions. This is an aspect of pure common law, in which equity plays no part. 255 [17]. In the present case, the plaintiffs seek general damages for pain, suffering, and loss of amenities suffered by the deceased. The Court of Appeal in Sambaga Valli a/p K.R. Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors [2018] 3 MLRA 488; [2018] 1 MLJ 784; [2018] 4 AMR 745; [2017] 1 LNS 500, emphasised that general damages should 260 consider the impact of injury on the plaintiff’s lifestyle, medical and psychological effects, and the level of pain endured. His Lordship Justice Mohd Zawawi Salleh JCA states: “[14] It is trite that a person injured by another’s wrong is entitled to general damages for non-pecuniary such as his pain and 265 suffering, hardship, discomfort, mental distress or loss of amenities of life. There is no standard rule to measure the damage in such cases. The courts usually determine the amount based on a fair and reasonable standards, free from fanciful standards based upon evidence adduced. The court 270 should also consider the age, health condition of the injured party pre-injury as compared with his condition after the injury. The court also consider the need for medical, psychological or physical symptoms and the impact on the Plaintiff’s conduct and lifestyle before apportioning the amount of damages.” 275 [18]. The defendants argue that the case of Ku Jia Shiuen (an infant suing through her mother and next friend, Tay Pei Hoon) & Anor v. S/N fZcqnOUB8EW22cMqdzo14g Government of Malaysia & Ors, [2013] 4 MLJ 108; [2013] 9 CLJ 489; [2013] 1 PIR 47 referred to by the plaintiff involving a cerebral palsy 280 diagnosis, differs from the present facts. However, this distinction does not do away with the principle that courts must assess the actual pain and suffering endured by a plaintiff, regardless of the nature of the injury. The High Court in Dato’ Stanley Issacs v. The Government of Malaysia & Ors [2019] 8 MLJ 331; [2019] 1 CLJ 626; [2018] MLRHU 1385 (folld) 285 awarded RM 100,000 for pain and suffering, while the High Court in Suzilawati Ali & Anor v. Dr Alif Al Ain Mohd Fathilah & Ors [2023] 8 MLJ 110; [2023] 1 CLJ 959; [2022] AMEJ 1687, awarded RM 150,000 for similar claims. [19]. Considering the severe pain and prolonged suffering endured by the 290 deceased before his passing, a higher quantum of damages is warranted. The defendants propose RM150,000.00 relying on past cases. However, given the duration of suffering (over one month) and the extent of medical complications append below from the submission of the plaintiff the record of daily suffering of the child from the 1st day to the of his passing: 295 a. DAY 1: Suprastemal and subcostal recessions, and bilateral lung crepitations, then diagnosed to have bronchopneumonia; b. DAY 2: Intubated, a right chest tube was then inserted to relieve the right pleural effusion, there was the presence of pus along the tubing 300 meaning the pleural effusion was stage 2 empyema/ parapneumonic effusion, a bubbling chest tube was already a sign of the presence of pneumothorax, was in acute respiratory failure requiring mechanical ventilator; 305 S/N fZcqnOUB8EW22cMqdzo14g c. DAY 3: ECG recorded showed supraventricular tachycardia (SVT); Femoral central line (CVL) was attempted many times by Dr Loo (MO), Dr Ho (MO) and Dr Too (paediatrician). But all attempts were unsuccessful, therefore he was re-intubated, Dr Too inserted the right internal jugular catheter (IJC), accumulation of fluid in the right pleural 310 space due to the clamped right chest tube eventually led to right pneumothorax; d. DAY 5: Chest tube was "bubbling" and a right bronchopleural fistula was suspected. The pneumothorax had not seen improvement, the 315 onset of the right bronchopleural fistula started between 8 to 10 / 04 / 2018; e. DAY 6: Diagnosed to have left tension pneumothorax, and left chest tube was inserted, the pneumothorax at the left was a consequence of 320 the use of a mechanical ventilator with a high ventilator pressure setting which affected the normal left lung and became tension pneumothorax; f. DAY 9: Hiejjaz desaturated down to 50%, a larger size (12F) chest tube was inserted over the same opening on the right chest tube, right 325 femoral CVL was inserted to remove right IJC due to unresolved fever, persistent right skied pneumothorax, new infection; g. DAY 15: Hiejjaz had multiple episodes of desaturations, chest radiography revealed a right tension pneumothorax, emergency 330 second chest tube insertion, pus was noted after the insertion, kidney impairment with Oliguria and generalised oedema; h. DAY 27: Hiejjaz was noted to have an occipital pressure sore; 335 i. DAY 32: Hiejjaz showed respiratory acidosis, urgent CXR revealed a left-sided pneumothorax, an indication for another left chest tube (16Fr) S/N fZcqnOUB8EW22cMqdzo14g insertion procedure, but the procedure was complicated with bleeding estimated at around 150cc, and the packed cell was transfused to replace the blood loss; 340 j. DAY 39: Hiejjaz's condition deteriorated further, developed pulmonary haemorrhage with hypotension, and later also developed haematoma over the left iliac fossa (left trunk), Hiejjaz became persistently hypotensive requiring three inotropic supports. Hiejjaz was in terminal 345 illness due to worsening sepsis with coagulopathy, and eventually succumbed to his death. [20]. Considering the traumatic ordeal endured by the deceased, which ultimately led to his death, I am of the view that a fair and just award must 350 be significantly higher. Taking into account, the severity of the plaintiff’s suffering, the prolonged period of distress, and the current economic landscape, I therefore award RM300,000.00, reflecting the gravity of the plaintiff’s experience and the impact of inflation. Aggravated Damages 355 [21]. Aggravated damages are awarded as additional compensation where a plaintiff has suffered intangible harm due to the exceptional conduct of the defendant. Unlike general damages, which compensate for direct physical injury, aggravated damages are intended to address emotional distress, humiliation, and increased suffering caused by the 360 reckless, oppressive, or high-handed actions of the defendant. [22]. The legal principle governing aggravated damages was established in Rookes v. Barnard [1964] AC 1129, where Lord Devlin held that aggravated damages may be awarded when the manner in which the S/N fZcqnOUB8EW22cMqdzo14g wrong was committed resulted in injury to the plaintiff’s dignity, self- 365 respect, or emotional well-being. The essential elements that justify an award of aggravated damages include: a) Exceptional conduct by the defendant that exceeds ordinary negligence. b) Intangible loss suffered by the plaintiff, including distress, 370 humiliation, or psychological suffering. c) A compensatory purpose, rather than punitive, focused on redressing the plaintiff’s increased suffering. [23]. In Sambaga Valli a/p K.R. Ponnusamy v. Datuk Bandar Kuala 375 Lumpur & Ors [2018] 3 MLRA 488, the Court of Appeal classified aggravated damages as a distinct class of compensatory damages that address intangible injuries affecting the plaintiff’s dignity and personal well-being. The court held: “Now, aggravated damages are classified as a species of 380 compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant.” 385 [24]. This principle highlights that aggravated damages are not punitive but serve to redress the heightened pain, suffering, or distress endured by the plaintiff due to the defendant’s wrongful actions. S/N fZcqnOUB8EW22cMqdzo14g [25]. In Ahmad Thaqif Amzar Ahmad Huzairi v. Kuala Terengganu 390 Specialist Hospital Sdn Bhd & Ors [2020] MLRHU 1973; [2020] MLRHU 1973; [2021] 9 MLJ 10; [2021] 3 CLJ 389, establishes that suppression of medical records and refusal to admit liability despite overwhelming evidence of negligence constitute exceptional conduct warranting aggravated damages. His Lordship Abdul Wahab Mohamed J 395 held that such actions caused unnecessary distress to the plaintiff and his family. [26]. To justify aggravated damages, the conduct of the defendant must go beyond mere negligence. In medical negligence cases, this may involve deliberate disregard of a patient’s suffering, failure to provide 400 critical information, or dismissive behaviour towards a patient's concerns. The Federal Court in Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors [2017] 5 MLRA 399; [2017] 5 MLJ 438; [2017] 8 CLJ 605, distinguished between different standards of duty in medical negligence, particularly the duty to advise on risks versus the duty of 405 diagnosis and treatment. The manner in which medical professionals communicate or respond to patient distress may contribute to a claim for aggravated damages if it exacerbates suffering. [27]. Courts exercise discretion in determining the quantum of aggravated damages by considering: 410 a) The degree of mental distress suffered by the plaintiff. b) The nature and severity of the defendant’s conduct. c) Whether the harm was prolonged or avoidable. d) The impact of the defendant’s behaviour on the plaintiff’s dignity and emotional well-being. 415 S/N fZcqnOUB8EW22cMqdzo14g Since aggravated damages are compensatory rather than punitive, they are assessed based on fairness and proportionality to the harm suffered. [28]. The defendants' conduct in this case meets the legal threshold for aggravated damages, as established in Sambaga Valli, Thompson (supra), and Ahmad Thaqif Amzar (supra). The evidence demonstrates 420 exceptional neglect, inaction, and failure to provide adequate care, leading to prolonged and avoidable suffering for the deceased child and significant emotional distress for the plaintiffs. The following are the evidence considered by the court: a) Prolonged suffering and neglect: The child was left under the 425 care of medical officers only, without proper specialist intervention, despite clear signs of deterioration. b) Failure to formulate a treatment plan: There was no structured medical plan by any of the 44 defendants to stabilise and manage the child's condition effectively. 430 c) Lack of urgency in transferring the child: No records indicate how the caregivers attempted to stabilise the child for transfer to a better-equipped facility from day one. d) Absence of specialist-to-specialist communication: Despite the child's worsening condition, there was no documented 435 discussion between specialists regarding stabilising and transferring the child. e) Missed opportunities for transfer: The child could have been transferred earlier, but crucial opportunities were disregarded. The first transfer discussion only occurred on day 14, by which 440 time the child's condition had deteriorated beyond recovery. S/N fZcqnOUB8EW22cMqdzo14g f) Failure to inform the parents: The Plaintiffs were kept in the dark about the child's deteriorating condition and the need for a transfer until two weeks after admission. g) Inordinate delay in attending to the child in the Yellow Zone: 445 The child remained in a critical state without timely escalation of care, causing unnecessary distress to both the child and the parents. [29]. The testimony of Professor Madya Dr. Gan Chin Seng, who is the 450 plaintiffs' expert witness, confirms there were severe deficiencies in the care provided to the child. During cross-examination, he stated: "The case from the beginning wasn’t a complicated one until it progressed beyond what the team could handle. Early referrals could have been done to change the outcome. The failure to 455 make an early referral allowed complications to develop beyond the team's capability to handle, resulting in the child’s unnecessary suffering." [30]. His expert opinion highlights that the defendants' inaction, lack of a 460 structured plan, and failure to escalate care directly contributed to the child's avoidable suffering. [31]. Additionally, the plaintiffs are entitled to aggravated damages for the emotional trauma of witnessing their child's suffering. In Ketua Polis Negara & Ors v. Nurasmira Maulat Jaffar & Ors [2018] 3 MLJ 184; 465 [2018] 1 CLJ 585; [2017] 8AMR 829, the Federal Court recognised that courts should consider the psychological impact on family members who witness the suffering of a loved one due to negligence. Here, the plaintiffs S/N fZcqnOUB8EW22cMqdzo14g helplessly watched their child deteriorate while the defendants failed to act promptly, exacerbating their emotional distress. 470 [32]. Given the exceptional and high-handed conduct of the defendants, the prolonged suffering inflicted on the deceased, and the reckless disregard for human life and dignity, this Court finds that an award of aggravated damages is warranted. The defendants failed to take timely action, neglected to implement a proper treatment plan, withheld critical 475 medical records, and unnecessarily prolonged the litigation process, all of which meet the legal threshold for aggravated damages. [33]. In summary, the plaintiff claims a total of RM2,500,000.00 in aggravated damages this includes what was discussed above for the deceased child’s suffering due to inadequate diagnosis, poor 480 management, and delayed treatment the sum of RM700,000.00 and a further sum of RM700,000.00 sought for failure to advise of risks, to the parents about the severity of the situation. Separate claim for the parents, the plaintiff claims RM400,000.00 for emotional and psychological distress, as they helplessly watched their child endure unnecessary 485 suffering. RM200,000.00 is claimed for the suppression of medical records, which forced the parents to seek legal action to obtain vital information. Lastly, RM 500,000.00 is claimed for breach of contract, as the hospital failed to provide a proper system for emergency care, stabilisation, and transfer, leading to avoidable complications and 490 untimely death of the child. [34]. Having considered the above for the claim for aggravated damages as discussed for the various factors, this Court awards a single sum of RM300,000.00 in aggravated damages. S/N fZcqnOUB8EW22cMqdzo14g Exemplary Damages 495 [35]. The plaintiffs seek exemplary damages due to the severe distress suffered by the parents as a result of the gross negligence of the defendants. Exemplary damages are intended to punish and deter conduct that is oppressive, arbitrary, or unconstitutional. The plaintiffs seek exemplary damages due to the defendants’ alleged disrespectful 500 and negligent treatment, not only toward the deceased child but also toward the plaintiffs as grieving parents. [36]. However, exemplary damages are discretionary and typically awarded only in cases of egregious misconduct. While the court does not find sufficient evidence of oppressive behaviour, it acknowledges the 505 gross negligence of the defendants. In line with the Federal Court’s decision in Koperal Zainal Mohd Ali & Ors v. Selvi Narayan & Anor [2021] 4 AMR 529; [2021] 3 MLRA 424; [2021] 3 MLJ 365; [2021] 6 CLJ 157, the court substitutes exemplary damages with an additional RM200,000.00 under aggravated damages, increasing the total 510 aggravated damages award to RM500,000.00. Vindicatory and Exemplary Damages [37]. The plaintiffs’ claim for vindicatory and exemplary damages is disallowed, as it fails to meet the required legal threshold of proving that the defendants' conduct was outrageous, oppressive, malicious, or 515 unconstitutional. Such damages are reserved for exceptional cases where the wrongdoing is deliberate and egregious, aimed at punishing and deterring similar misconduct. In the present case, while the defendants’ negligence is acknowledged, there is no evidence that their actions were S/N fZcqnOUB8EW22cMqdzo14g motivated by malice, oppression, or a wilful disregard for the deceased 520 child’s rights or those of the plaintiffs. [38]. The defendants have demonstrated that the deceased received continuous medical attention, though errors in treatment and delays in escalation of care contributed to the deterioration of the child’s condition. Prof. Dr. Gan’s expert testimony highlights multiple missteps in treatment, 525 but these do not rise to the level of intentional misconduct necessary to justify vindicatory or exemplary damages. The defendants’ conduct, while negligent, does not reflect the outrageous or arbitrary behaviour required to impose punitive measures. [39]. Furthermore, awarding vindicatory or exemplary damages in 530 medical negligence cases without clear evidence of bad faith or oppressive conduct would set a problematic precedent. Such damages are not designed to penalise errors in medical judgment unless accompanied by deliberate wrongdoing. The evidence presented does not support a finding that the medical staff acted intentionally to cause 535 harm, nor did they engage in conduct so egregious that it warrants punitive measures. [40]. The prolonged mismanagement of the deceased’s condition constitutes a serious failure in the duty of care, beyond ordinary negligence. However, aggravated damages are sufficient to reflect the 540 gravity of this failure and compensate the plaintiffs for their suffering and distress. As there is no intentional harm, oppressive behaviour, or malice, I find that vindicatory and exemplary damages are not warranted in this case. S/N fZcqnOUB8EW22cMqdzo14g [41]. Accordingly, the plaintiffs’ claim for vindicatory and exemplary 545 damages is dismissed. Costs [42]. The plaintiffs seek an award for getting-up fees for liability and quantum proceedings, along with out-of-pocket expenses incurred during litigation. The plaintiffs claim RM 350,000.00 for getting-up fees, asserting 550 that the complexity of the case, the number of witnesses, and the extensive preparation justify the amount sought. [43]. The defendants, however, contend that costs should be reasonable and proportionate, covering only necessary litigation expenses. In Elisabeth Sugirthamalar Alfred (Administratrix of the estate of Lilian 555 Nesamalar Alfred) v Tau Jiu Ee (t/a JS Tan & Co) [1997] 2 MLJ 208; [1996] CLJU 124; [1996] 4 MLRH 32, the court emphasised that costs should not be excessive and must be limited to what is reasonably necessary for conducting litigation. Extravagant or non-essential expenses should not be passed on to the losing party. 560 [44]. Applying this principle, I find the RM350,000.00 claimed for getting-up fees excessive and unjustified. Instead, a reasonable sum of RM80,000.00 is allowed for getting-up fees, along with out-of-pocket expenses of RM21,333.85, bringing the total costs awarded to RM101,333.85. 565 [45]. Accordingly, the plaintiffs are awarded costs in the sum of RM101,333.85. S/N fZcqnOUB8EW22cMqdzo14g Interest [46]. Considering the established legal principles and the circumstances 570 of this case, it is appropriate to award interest as follows:

Interest on special damages at the rate of 4% per annum from 5 April 2018 (the date of filing of writ) up to the date of judgment;

Interest on general damages and aggravated damages, at the 575 rate of 8% per annum from 6 May 2021 (the date of service of the Writ) until the date of judgment; and

Interest on the total judgment sum, including costs, at the rate of 5% per annum from the date of judgment until full payment. [47]. The allocator fee is not payable. 580 Date: 24 April 2025 Moses Susayan 585 MOSES SUSAYAN Judicial Commissioner High Court in Malaya at Ipoh, Perak 590 S/N fZcqnOUB8EW22cMqdzo14g Counsel: For the Plaintiff: Ranjit Singh (together with Harveynder Singh Tyndall) 595 Advocates and Solicitors [Messrs Ranjit Singh & Co.] Ipoh, Perak For the defendant: 600 Masriwani binti Mahmud @ Mamat Senior Federal Counsel Litigation Sector, Civil Division Government Contract and Medical Negligence Unit [Attorney General’s Chamber] 605 Putrajaya (Notice: This Grounds of Decision is subject to official editorial revision) 610 Headnotes Damages — Assessment — Medical negligence — Failure to diagnose and treat respiratory distress — Delayed medical intervention — Child suffered prolonged complications before passing away — Defendants admitted liability — Quantum of damages to be determined 615 S/N fZcqnOUB8EW22cMqdzo14g Damages — Special damages — Fees for specialist opinion, court appearances, and funeral expenses — Claims supported by evidence — Court allowed full claim of RM 22,180.00 Damages — General damages — Pain and suffering of the deceased — Prolonged distress due to inadequate medical care — Court awarded 620 RM 300,000.00 Damages — Aggravated damages — Exceptional negligence by defendants — Failure to escalate care and delayed transfer — Emotional distress of parents — Suppression of medical records — Breach of contract — Award of RM 500,000.00 granted 625 Damages — Exemplary and vindicatory damages — Claim dismissed — No evidence of malicious, oppressive, or unconstitutional conduct by defendants Costs — Plaintiffs sought RM 350,000.00 for getting-up fees — Court found claim excessive — Reasonable sum of RM 80,000.00 allowed, 630 plus RM 21,333.85 for out-of-pocket expenses — Total costs awarded RM 101,333.85. Interest — 4% per annum on special damages from 5 April 2018 to judgment — 8% per annum on general and aggravated damages from 6 May 2021 to judgment — 5% per annum on total judgment sum until full 635 payment — Allocator fee not payable S/N fZcqnOUB8EW22cMqdzo14g