AB (Seorang kanak - kanak yang membawa tindakan ini melalui wakil litigasinya SUHAIMAY BIN ISMAIL) v Ilham Fitri Bin Murad (KA-23NCvC-1-01/2023)

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NAZALI BIN MALIK DR. ASRI BIN ABDUL AZIZ [MMC No: 97954]

POLIKLINIK IHSAN [Registration No: 230223-02023-11] …DEFENDANTS GROUNDS OF JUDGMENT (After Full Trial)

This medical negligence action presents a fundamental procedural anomaly: an attempt by the Plaintiff to establish clinical breach and causation in the absolute absence of expert medical testimony. Inevitably, the Plaintiff failed to establish a prima facie case, prompting the Defendants to elect to submit no case to answer upon the close of the Plaintiff’s case. This litigation serves as a stark 06/07/2026 16:19:23 Kand. 40 …page 2 reminder that the cardinal maxim “ei incumbit probatio qui dicit, non qui negat”—he who alleges must prove—remains an immutable threshold that must be crossed before any claim can command the assistance of the Court. Facts and Background 2. On 30 November 2019, the Plaintiff, then a nine-year-old boy, attended Poliklinik Ihsan (the 4th Defendant) to undergo a ritual circumcision. The procedure was carried out by the 1st and 2nd Defendants, who are medical assistants. Following the procedure, the Plaintiff experienced persistent bleeding, pain, and difficulty passing urine.

The Plaintiff returned to the 4th Defendant’s clinic on multiple occasions for follow-up care:

(i). 13 December 2019: The Plaintiff presented with bleeding and pain. He was attended to by the 3rd Defendant, who performed wound dressing and prescribed medication.

On 10 February 2020, the 3rd Defendant issued a referral letter for the Plaintiff to see a urologist. Independent of this, on 13 February 2020, the Plaintiff’s school also issued a referral letter to Hospital Sultanah Bahiyah (HSB) following the Plaintiff's ongoing complaints of pain.

The Plaintiff subsequently attended HSB on 17 February 2020 for further management. Medical records from HSB dated 5 July 2020 indicate that the circumcision wound had successfully healed and that the Plaintiff was able to pass urine well. The trial and parties’ submissions

During the trial, the Plaintiff called two witnesses:

(i). The Plaintiff’s father and legal representative, SP1, who is a …page 4 contract manual labourer by trade; and

As the Defendants elected for a submission of no case to answer, no witnesses were called.

The Plaintiff contends that the ritual circumcision performed on 30 November 2019 was executed with gross medical negligence involving improper surgical techniques and unsterile instruments. The Plaintiff’s submission emphasises that the 1st and 2nd Defendants were unauthorised and unqualified to perform the procedure in that specific setting, acting outside their professional scope. They argue that the subsequent development of a fibrous layer over the glans penis, which obstructed urinary flow and caused prolonged suffering, was a direct consequence of substandard surgical execution and a failure by the 3rd Defendant to provide a timely specialist referral. The Plaintiff invoked the doctrine of res ipsa loquitur, alleging that these complications speak for themselves, despite the absence of an independent medical expert. In relief, the Plaintiff sought significant damages, including RM35,000 for future aesthetic corrective surgery.

Conversely, the Defendants have moved for a submission of no case to answer, arguing that the Plaintiff’s failure to call a medical expert witness is fatal to a claim involving technical issues of …page 5 diagnosis and treatment. They submit that the 1st and 2nd Defendants were fully qualified and registered professionals and that the clinical reality as documented by Hospital Sultanah Bahiyah is that the Plaintiff’s wound had already healed with no permanent functional impairment. Furthermore, the Defendants argue that the chain of causation was broken by contributory negligence, noting that the Plaintiff's father delayed a specialist referral by 72 days despite multiple recommendations from the 3rd Defendant. Finally, they highlight that the Plaintiff himself admitted in his oral testimony that he is now healthy and active in sports, thereby undermining the claim for permanent disability or the necessity of future corrective surgery. Decision of this Court 10. Having heard witnesses and evidence submitted after a full trial, and considered submissions both oral and written, this Court dismissed the Plaintiff’s claims in limine. The following are my reasons.

A submission of no case to answer precludes the defendant from the opportunity of adducing evidence at trial through a witness. Before a judge may accept this submission, he must warn the counsel of its consequences and confirm whether they have conferred with their client before making the election, as counsel’s election is the client’s election. A counsel familiar with the evidentiary burden of adducing and explaining evidence during trial will appreciate the benefits of having a witness on the stand to support their case. It could also greatly disadvantage the defendant on appeal if the trial results in the plaintiff being found to have proved their case. Consequently, such an election by counsel represents a stark binary: it is either an exercise in profound procedural temerity or a manifestation of strategic virtuosity, leaving no analytical middle ground.

In the Federal Court decision of Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609, Ramly Ali FCJ referred to the decision of Suriyadi JCA (as he then was) to describe two circumstances that arise when a defendant submits that he has no case to answer:

(i). First, when even after accepting the plaintiff’s evidence at face value, no case has been established in law; or

More recently, in Empire Holdings Ltd v Ithmaar Development Co Ltd & Ors [2025] 1 MLJ 192, the Court of Appeal affirmed and declared that the two circumstances above are trite law and are considered as categories and limbs in a submission of a no case to answer by a defendant electing so.

From the above authorities, it can be distilled that what determines whether a defendant is successful in electing to submit a no case to answer is a question of whether the evidence adduced by the plaintiff ex facie establishes both a case in law and discharges the burden of proof.

During oral submissions, the counsel for the Plaintiff erroneously submitted that for a 'no case to answer' submission to succeed, there must be 'absolutely no evidence whatsoever' before the Court. I must correct this fundamental misconception of the law. As clarified by the Court of Appeal in Empire Holdings (supra), the first limb of a 'no case to answer' submission is whether 'no case has been established in law'. It is not a question of whether any evidence exists, but whether the evidence adduced is legally sufficient to establish the elements of the tort. While the Plaintiff did adduce evidence in the form of photographs and layperson testimonies, such evidence is legally insufficient to establish a breach of the standard of care in a complex medical negligence claim without corroboration from an independent medical expert.

Applying the principles laid down in Empire Holdings (supra), I find …page 8 that the Plaintiff's case collapses under the first limb, namely that 'no case has been established in law'. The tort of medical negligence requires the Plaintiff to establish the duty of care, the breach of the standard of care, and causation. Without adducing any independent medical expert evidence to establish the requisite benchmark for the standard of care, the Plaintiff has failed to establish the foundational legal elements of their claim.

2.1. Standard of care was not established 19. The fatal flaw in the Plaintiff’s case is the failure to call any independent medical expert witness to testify. In the realm of medical negligence, the law is well-settled. As established by the Federal Court in Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438, the standard of care and causation in diagnosis and treatment must be evaluated against the Bolam test, which requires the views of a responsible body of …page 9 medical professionals.

The Court cannot single-handedly determine the standard of care or make clinical conclusions based merely on photographs and the lay opinions of SP1. I have discussed this principle in my judgment in the case of Mohd Saufi bin Saman v Dato' Dr Ahmad Murtazam & Ors [2024] CLJU 259, where the failure to produce medical expert evidence resulted in the dismissal of the claim in limine.

It is a foundational tenet of judicial prudence that a court must not arrogate to itself an unearned expertise in highly specialised non-legal disciplines, aside from the reading of the law, to form an objective opinion of the required standard of care in a case of professional negligence. Only a fellow professional of the same discipline can be objectively considered a peer capable of forming an opinion to guide a judge on the standard of care expected of him as a professional in a discipline, and whether such a standard was breached by a defendant. This line of caution forms part of the judgment enunciated by the Federal Court in Zulhasnimar bt Hasan Basri and is sound advice to any judge and legal practitioner.

In the case before this Court, the counsel for the Plaintiff attempted to play the role of the medical expert. He moved this Court to accept that there is no need for a medical expert witness to testify to the standard of care of a routine circumcision surgery, as he considers the incident “straightforward and uncomplicated”. With due respect, …page 10 there is only so much recognition of experience that can be afforded to a counsel—even as senior as the Plaintiff’s counsel—who undoubtedly may have tried numerous cases on medical negligence to be able to converse the language of medical professionals. Be that as it may, extensive trial experience on the subject does not equate to and cannot substitute for first-hand medical knowledge and expertise. The law under section 45 of the Evidence Act 1950 recognises the opinions of third parties only when they are experts in the relevant science or skill. The opinions of counsel on the subject do not fulfil that requirement to be considered relevant and admissible, as he is not a medical expert under the law.

The Plaintiff's failure to call any independent medical expert to testify on the acceptable standard of care is not merely a gap in evidence; it triggers a statutory presumption against the Plaintiff. This Court finds it appropriate to invoke Section 114(g) of the Evidence Act

The Court presumes that the evidence of an independent medical expert, which could and should have been produced by the Plaintiff to discharge his burden of proof, would have been unfavourable to the Plaintiff's case had it been produced.

While this Court appreciates the extent of research conducted by both counsels to establish the standard of care, the Bolam test unequivocally requires the standard of care to be established through the views of a responsible body of medical professionals. This, the Plaintiff, has unequivocally failed to do so in their failure to call an expert witness to testify on the standard of care. The Court is sympathetic to the Plaintiff’s financial difficulty in procuring an …page 11 expert witness with an affordable fee; however, it does not detract from the Plaintiff’s burden of proof as required of him.

The Plaintiff extensively relied on the decision of the Court of Appeal in the case of Mohamad Rafiq Faudzil v Dr Adzleen Mahmood & Ors [2023] 2 MLRA 370 to show to this Court that a finding of medical negligence can be made without calling an expert witness to testify in the trial. I am of the opinion that the case does not assist the Plaintiff as the facts are greatly distinguishable. In Mohamad Rafiq Faudzil, Suraya Othman JCA found that the plaintiff was not obliged to call expert evidence if documentary evidence is sufficient to prove the claim. This was in reliance on yet another Court of Appeal decision in the case of Loo Chooi Gaik v. Dr Loh Lay Soon [2019] 4 CLJ 281.

In Mohamad Rafiq Faudzil (supra), the treating doctor stated in her report that the defendant was suffering from a corneal ulcer. However, the defendant themselves adduced evidence from other medical practitioners that the corneal ulcer should not have been treated with the medication prescribed by the defendant. Whereas in Loo Chooi Gaik (supra), there was a subsequent specialist diagnosis that the prescribed antibiotics by the defendant were ineffective and, as a result, the plaintiff suffered from the effects of not being able to combat the nosocomial infection, leading to permanent aesthetic injury.

There is a common thread between the decisions in Mohamad …page 12 Rafiq Faudzil and Loo Chooi Gaik. It can be observed in both cases that the defendants themselves provided documentary evidence from other medical practitioners that the prescribed medication or treatment was incorrect and directly contributed to the plaintiff's injury. Therefore, the judgments do not entirely depart from the required standard of proof of the Plaintiff for medical negligence. The onus remains on the Plaintiff to establish the standard of care through the views of medical practitioners.

In the case before me, the Plaintiff did not adduce any contemporaneous documentary evidence that showed the treatment or diagnosis of the Defendants was inherently incorrect and caused the injury suffered. The Plaintiff painted a series of events as evidentiary: beginning from the Plaintiff claiming to have suffered from pain and difficulty passing urine, followed by the 3rd Defendant’s diagnosis of a thick fibrous tissue layer overlying the glans penis and that there was delayed healing, before being referred to Hospital Sultanah Bahiyah for further medical management where the evidence showed that the injury healed completely and the Plaintiff no longer suffered from difficulty passing urine. Instead, it showed a sequence of events in which the Defendants acted appropriately by recognising that there was indeed delayed healing, treating it, and referring it to a hospital, which led to a full recovery without any lasting injury.

The Plaintiff also did not adduce any documentary evidence to show that other medical practitioners were of the view that the surgical procedure of the Plaintiff’s circumcision breached medical …page 13 standards. The only evidence relied on by the Plaintiff was newspaper clippings warning parents against doctors untrained in circumcision procedures and to bring their children to registered facilities—the Defendant’s facilities are in fact registered—to perform circumcision. Not only is there an absence of any documentary evidence to show the procedure was improper, but the contemporaneous documents contained in the agreed Common Bundles, coupled with the admissions elicited during the cross-examination of SP1, clearly showed that the 1st and 2nd Defendants were certified and trained to perform circumcisions.

Thus, I am unable to accept the contention of the Plaintiff that the principles in Mohamad Rafiq Faudzil and Loo Chooi Gaik are applicable in this case. There was no documentary evidence from other medical practitioners indicating negligence by the Defendants in failing to replace expert evidence in establishing the standard of care.

2.2. Res ipsa loquitur is not applicable 31. In the alternative, the Plaintiff attempted to rely on the doctrine of res ipsa loquitur by asserting that the complications, such as the fibrous layer, imply inherent negligence.

The principles and limitations of res ipsa loquitur were discussed concisely in Ahmad Jaafar Abdul Latiff v. Dato’ Bandar Kuala Lumpur [2014] 9 CLJ 861, where the Federal Court in Pengarah …page 14 Hospital Gua Musang & Ors v Abdullah Mat [2017] 5 CLJ 335 cited the judgment of Raus Shariff PCA (later, CJ). Fundamentally, res ipsa loquitur is a principle of evidence and not a substantive law. Its purpose is to infer that negligence had occurred, but it does not, by itself, prove negligence. The plaintiff must still prove that the defendant has exclusive control over the property or object that caused the damage or injury. A plaintiff must show that the type of injury suffered would not ordinarily occur unless the defendant was negligent. Accordingly, presenting evidence of the adverse medical outcome or mishap itself is insufficient to invoke the maxim. The doctrine of res ipsa loquitur does not shift the legal burden of proof, which remains squarely on the Plaintiff throughout under Section 101 of the Evidence Act 1950; it merely assists the Plaintiff in discharging their evidential burden by permitting the Court to draw a common-sense inference of negligence from the mere happening of the event.

The Plaintiff attempted to utilise res ipsa loquitur as a means to jump the conclusion of negligence. While I am acutely aware that Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 1 MLRA 605 sets out that once a defendant submits a no case to answer, all the evidence led by the plaintiff is assumed to be true, this does not, as shall be established later in this judgment, automatically mean the evidence automatically fulfils the burden of proof for the Plaintiff in our present case.

Furthermore, the Court of Appeal in Shalini Kanagaratnam v Pusat Perubatan Universiti Malaya & Anor 6 CLJ 227 established …page 15 that the doctrine of res ipsa loquitur will not ordinarily apply in cases of medical negligence, as the plaintiff must discharge the legal burden to demonstrate that the appropriate standard of care has been breached via expert evidence.

Even if this Court were to entertain the application of res ipsa loquitur, the presumption of negligence is completely shattered by the undisputed factual matrix of this case. The evidence on record revealed that on the very same day, two of the Plaintiff's cousins underwent the exact same circumcision procedure, performed by the same 1st and 2nd Defendants, at the exact same premises, utilising the same set of tools. Crucially, both cousins healed perfectly without any complications. If the premises or tools were inherently unsterile or unsafe, or if the Defendants' methods were fundamentally negligent as alleged by the Plaintiff, all three boys would have logically suffered similar adverse outcomes. The fact that only the Plaintiff developed a fibrous layer points to an isolated biological reaction rather than systemic negligence, thereby entirely displacing the maxim of res ipsa loquitur.

Counsel for the Plaintiff, during oral submissions, attempted to rebut this 'two cousins' factual matrix by raising an analogy of three bypass surgeries, where one patient dies, and two survive, arguing that the survival of the two does not negate negligence towards the deceased.

As a general proposition of the law of torts, the Plaintiff's counsel is …page 16 undoubtedly correct that a successful outcome in one patient does not automatically absolve a medical practitioner of negligence in respect of another. Clinical negligence is inherently case-specific, and a practitioner may exercise proper care in one procedure while failing to do so in another. However, this theoretical principle must be applied contextually to the specific pleadings and the nature of the allegations on the record. In this regard, a critical distinction must be drawn between allegations of systemic or environmental negligence and allegations of individual technical negligence.

The Plaintiff’s res ipsa loquitur argument in the present case was heavily premised on the physical environment and facilities— namely, that the clinic’s location was inherently unsterile and that the surgical instruments used were contaminated or unsafe. For this category of complaint, which asserts a generalised environmental breach, the undisputed fact that two other boys were circumcised simultaneously at the same premises, using the exact same facilities and tools, without suffering any complications or infections, is highly relevant. It completely destroys any circumstantial presumption that the environment, premises, or instruments were inherently unsterile or hazardous.

Conversely, to the extent that the Plaintiff alleges individual technical negligence—such as an improper surgical cut or substandard suturing technique specific to his procedure—the successful outcomes of his cousins are indeed not dispositive. However, such technical surgical allegations are highly complex, clinical matters concerning human pathology, biological tissue …page 17 response, and surgical methodology. It is settled law that such technical clinical questions fall squarely within the realm of medicine and cannot be resolved by common sense or layperson speculation under the guise of res ipsa loquitur. Under the Bolam test, as reaffirmed by the Federal Court in Zulhasnimar, the Plaintiff was strictly required to adduce independent medical expert evidence to establish the clinical standard of care and prove a technical breach. In the absolute absence of such expert testimony, this Court cannot speculate on technical errors, and the Plaintiff's technical case on liability collapses at the threshold.

As discussed above, the Plaintiff did not adduce evidence to show that there was in fact a negligent act that breached the standard of care. There were indeed photos shown of the fibrous layer of the penis, but there was no explanation of whether the condition of the penis as shown in these photos was considered medically abnormal by a person competent to explain it. Thus, the principle in Jaafar Shaari is of no assistance to the Plaintiff, even when the adduced evidence is accepted as true, it does not prove their case.

Having found that the Plaintiff has failed to establish a prima facie case of medical negligence against the 1st and 2nd Defendants, the Plaintiff's claims against the 3rd Defendant (Dr Asri) and the 4th Defendant (Poliklinik Ihsan) must invariably suffer the same fate. The Plaintiff sought to hold the 3rd and 4th Defendants liable under the doctrines of vicarious liability and non-delegable duty of care. However, as established by the Federal Court in Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 4 CLJ 173, for the principle of non- …page 18 delegable duty to have any relevance or impact, the plaintiff must first establish negligence by the primary tortfeasors. Because the Plaintiff has failed to prove that the 1st and 2nd Defendants breached their duty of care, the foundational requirement for vicarious liability and non-delegable duty is absent. Accordingly, the claims against the 3rd and 4th Defendants collapse entirely.

To further compound the weakness of the Plaintiff's factual narrative regarding the allegedly unsterile tools and unsafe premises, SP1 made a crucial concession during cross-examination. SP1 admitted that despite being present and observing the preparations and the procedure itself, at no point did he ever instruct the 1st and 2nd Defendants to stop the circumcision. If the tools were visibly unsterile or the Defendants' methods were as grossly negligent as the Plaintiff now alleges, it defies logic and common sense that a concerned father would remain completely silent and allow the procedure to continue to completion. This post-facto allegation is clearly inconsistent with his contemporaneous conduct.

2.3 Unpleaded Regulatory and Administrative Issues as Impermissible Afterthoughts 43. Also, the Plaintiff attempted to introduce entirely new narratives during the oral submissions, prominently arguing that the 1st and 2nd Defendants were government servants acting in breach of Regulation 5 of the General Orders (Public Officers). The Plaintiff alleged a 'conflict of interest' in which the Defendants purportedly …page 19 lured patients from the government hospital to their private clinic for profit.

During oral submissions, the Plaintiff's counsel attempted to justify the introduction of the unpleaded 'conflict of interest' and 'General Orders' issues by arguing that points of law can be raised at any stage of the proceedings, even without being pleaded.

I cannot accept this submission. Whether the Defendants had permission to practice outside their government employment or breached administrative regulations is not a pure question of law; it is a mixed question of fact and law which requires a factual foundation to be properly pleaded. As emphasised by the Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667 and The Chartered Bank v. Yong Chan [1974] 1 MLJ 157, where a vital issue is not raised in the pleadings, a party cannot be allowed to argue it at the submission stage. A party must stand and fall on his/ her pleaded case, and the Court will not entertain an ambush by way of unpleaded factual allegations.

This Court agrees with the Defendants' rebuttal that these allegations are an impermissible afterthought. It is a cardinal rule of civil litigation that parties are strictly bound by their pleadings. As established by the Federal Court in Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944; [2015] 6 MLJ 1, a party must stand and fall on his/ her pleaded case and cannot subsequently put forward an unpleaded case to ambush the opposing party. The …page 20 issues of conflict of interest, lack of departmental authorisation, or the lack of insurance indemnities were never pleaded in the Plaintiff's Statement of Claim. Accordingly, this Court will not entertain these unpleaded issues. Even if they were considered, the Plaintiff failed to show any medical nexus between administrative breaches (such as lacking a supervisor's permission to moonlight) and the clinical formation of a fibrous layer on the Plaintiff's anatomy.

2.4 The Plaintiff's Contradictory Stance on Clinical Qualifications and Competency 47. Even if these issues were considered as part of their pleadings, I am of the opinion that the Plaintiff failed to show any nexus between the lack of departmental authorisation or insurance and the negligence sought to be proven. It is established through the agreed Common Bundle of Documents (Enclosure 12) and the Additional Common Bundle of Documents (Enclosure 24)—which form part of the trial record—that the 1st and 2nd Defendants were, in fact, registered Medical Assistants possessing valid annual practising certificates and certified privileging credentials from Hospital Sultanah Bahiyah to perform core circumcision procedures. To my mind, those are the only necessary qualifications that matter in this case and relate to the dispute. The question of whether there is a lack of administrative authority from the 1st and 2nd Defendants’ supervisor is irrelevant to determining the issue of clinical negligence—it does not undermine their medical ability to perform the circumcision safely. This fact was candidly admitted by SP1 (the Plaintiff's father) under …page 21 cross-examination at Page 11 of the Notes of Proceedings (Enclosure 27), specifically paragraphs 249 to 250, when he acknowledged that he knew the Defendants were qualified, and the issue was subsequently formally conceded on the record as a non-issue by the Plaintiff’s own counsel during the trial.

This finding of clinical competence is further fortified by SP1’s own devastating admissions under cross-examination, which completely hollowed out the Plaintiff's factual narrative of a haphazard, unsterile, and negligent procedure. In his witness statement (specifically at paragraph 9), SP1 had boldly asserted that the Defendants failed to inspect the minor Plaintiff’s anatomy prior to injecting the anaesthetic. However, when confronted under cross-examination at Page 17 of the Notes of Proceedings (Enclosure 27), specifically paragraphs 404 to 417, SP1 conceded that the Defendants did indeed hold and thoroughly clean the minor’s genitals, and carried out proper clinical preparations before administering the injection. Furthermore, despite now alleging that the clinic was unsafe and the tools were unsterile, SP1 admitted at Page 18 of the Notes of Proceedings (Enclosure 27), specifically paragraphs 418 to 422, that he stood by and observed the entire procedure without once instructing the Defendants to stop or expressing any contemporaneous objection. It is a settled principle of evidence that a party's post-facto allegations of negligence cannot stand when contradicted by their own contemporaneous conduct and admissions on the stand. These major factual inconsistencies demonstrate that the Plaintiff's allegations of clinical negligence are a mere afterthought, wholly unsupported by the …page 22 objective reality of the trial record.

Furthermore, any lingering aspersions cast by the Plaintiff during submissions regarding the clinical competency and qualifications of the 1st and 2nd Defendants are wholly unmeritorious and contradicted by their own admissions in Court. The “Notes of Proceedings” explicitly record that during the trial, upon being presented with the Ministry certificates and privileging documents, Lead Counsel for the Plaintiff candidly conceded that, 'now that they have produced the certificates, that is no longer an issue... as to their qualifications' (See Notes of Proceedings (Enclosure 27), paragraph 257). Although the Plaintiff's counsel subsequently attempted to qualify this concession by stating they were, 'only admitting to the fact that the certificates are exhibited, nothing else' (paragraph 260), such a tactical limitation is of no legal efficacy.

The primary witness of fact and litigation representative, SP1, had already categorically admitted on the stand, 'Saya tahu aaa aaa mereka berkelayakan' (paragraph 250) and further agreed that these official government documents confirmed that the 1st Defendant was indeed qualified and competent to perform circumcisions (paragraphs 297–298). Once the authenticity and contents of these public documents—namely the Ministry's Registration Certificates and the Alor Setar Sultanah Bahiyah Hospital Privileging Certificates—are formally admitted on the record, they speak for themselves. The Plaintiff’s attempt to backtrack and restrict their admission in paragraph 260 is a highly artificial procedural manoeuvre. The Plaintiff cannot be permitted to …page 23 play fast and loose with the Court, nor can they approbate and reprobate by conceding a fundamental factual issue on the record only to resurrect it as a live dispute during submissions or on appeal.

2.5. The Unpleaded Issue of Informed Consent and the Misapplication of Section 114(g)

The Plaintiff in their submissions also attempted to invoke an adverse inference under Section 114(g) of the Evidence Act 1950 against the Defendants for their failure to adduce the written consent forms and pre-procedural assessment records during the trial, alleging a lack of informed consent. Again, this Court finds no merit in this submission. As rightly pointed out by the Defendants, the cause of action regarding a 'lack of informed consent' was never pleaded in the Plaintiff's Statement of Claim. Crucially, this issue was also completely omitted from the agreed “Issues to be Tried” (Enclosure 14) jointly formulated and filed by the parties, meaning it was never a live dispute before this Court at any point during the trial. It is trite that parties are bound by their pleadings. The Defendants were under no legal obligation to adduce evidence to rebut an issue that was never pleaded against them, nor formally framed as a triable issue on the record. Therefore, the failure to produce the consent form cannot be construed as a deliberate withholding of evidence under Section 114(g), but rather a strict adherence to the pleaded case.

2.6. Conclusion on Negligence and Liability …page 24

For the reasons elaborated above, the Plaintiff has failed to establish even a prima facie case of clinical negligence on liability against any of the Defendants. There is a complete absence of expert evidence to establish either a breach of the standard of care or medical causation. Consequently, the Plaintiff’s claim on liability collapses at the threshold, and it is on this ground alone sufficient for me to dismiss the Plaintiff’s case in limine.

The pivotal factual issue of whether and when the 3rd Defendant had advised and suggested a hospital referral for the minor Plaintiff has, however, been conclusively stated in Paragraph 12 of the Statement of Agreed Facts, which was e-filed by the Plaintiff as Enclosure 13. Specifically, Paragraph 12 records that the 3rd Defendant had recommended referring the minor Plaintiff to a hospital on three separate dates, namely 4 January 2020, 21 January 2020, and 23 January 2020. …page 25

It is immutable that the party who e-filed this Statement of Agreed Facts (Enclosure 13) was the Plaintiff’s own solicitors, as confirmed by the electronic filing metadata and signature block. Having systematically introduced this document into the trial record without contemporaneous objection, the Plaintiff is strictly estopped from unilaterally retracting these formal admissions or reframing the document as an uncompleted draft at the submission stage.

Under Section 58(1) of the Evidence Act 1950, once facts are formally admitted in writing under the hands of the parties or their solicitors, they are deemed proven and are completely dispensed from the requirement of further proof. This statutory principle was reinforced by the Court of Appeal in Siemens Industry Software Inc v. KB Engineering Coatings Sdn Bhd [2025] 5 CLJ 853, the Court of Appeal affirmed that an agreed fact under section 58 of the Evidence Act 1950 is an exception to the general rule to prove a certain fact and therefore need not be proved.

It can be observed that there were several annotations by the Defendants to the Statement of Agreed Facts in Enclosure 13:

(i). Insertion that the diagnosis of the Plaintiff by the 3rd Defendant was a fibrous layer from the genital ring/sulcus to 1/3 proximal glans;

Firstly, the timeline was agreed by the Plaintiff at the time it was sent to the Plaintiff by the Defendants. The Defendants’ annotations, in their present form, were clearly visible and already in place when the time for filing came. It cannot now be said that the Plaintiff never agreed to the changes. If the changes were genuinely detrimental to the case, the Plaintiff’s solicitors could have objected when they received the annotated copy of the statement, but evidently they did not, and this version came through.

Thus, under section 58(1) of the Evidence Act 1950, the dates are supposed to be true. Now, taking that into account, the 3rd Defendant has first made suggestions for a referral as early as 4 January 2020 and as late as 9 February 2020.

The Plaintiff first went to HSB for treatment on 17 February 2020. Medical records from HSB confirm that 17 February 2020 was the date of the first treatment at the hospital. During this initial visit, the Plaintiff was examined and subsequently referred to the Klinik …page 27 Kesihatan for daily wound dressing.

If we were to take the gap between the first referral on 4 January 2020 and 17 February 2020, there is a 44-day gap between the 3rd Defendant’s referral and the Plaintiff acting on the referral. The Defendants correctly submit that the Plaintiff's protracted inaction in responding to the referral constituted a novus actus interveniens, thereby severing the chain of causation.

Even if the Plaintiff’s case is to be taken at its highest level and if it is presumed that the referral to HSB was only made on 10 February 2020 when the 3rd Defendant wrote the referral; the period of time in between the first time it was advised on 4 January 2020, and 10 February 2020 was marked with an additional four visitations to the 3rd Defendant’s clinic.

During those visits, not only did the 3rd Defendant advise the Plaintiff’s father to bring him to the hospital another two times on 21 and 23 January 2020, but he also performed wound dressing and clinically observed the Plaintiff’s condition as improving before performing wound debridement at the Plaintiff’s father's request on 23 January 2020, and the bleeding had stopped on 28 January 2020 but with a wet wound.

It is this Court’s opinion that it is unfair to put the burden solely on the 3rd Defendant, claiming it to be “unduly conservative”, when he had made suggestions multiple times to the Plaintiff’s father to go to …page 28 the hospital. In my mind, this is not a case where the Plaintiff, as a patient, would not have been seen without a referral. The Plaintiff’s father is at perfect liberty to see a doctor at a hospital to treat the wet wounds. The gravity, or lack thereof, of the situation is evident in HSB’s doctor prescribing a wound dressing at the Klinik Kesihatan, suggesting that this is a case that can be handled in an outpatient facility rather than the comprehensive medical facilities of a hospital.

The Plaintiff further submitted that because the Defendants elected not to call any witnesses, the Defendants had failed to provide an 'alternative documented cause' for the formation of the fibrous layer. Relying on this absence, the Plaintiff urged this Court to draw an automatic inference that the circumcision procedure was the direct cause of the complication.

This Court finds this argument entirely legally flawed. The legal burden of proving causation rests squarely on the Plaintiff. I am guided by the decision in Payremalu Veerappan v. Dr Amarjeet Kaur & Ors [2001] 4 CLJ 380, which held that defendants cannot be found responsible merely because they failed to rule out certain possible causes in the course of the trial. The Defendants are under no legal obligation to prove an alternative medical cause when the Plaintiff has utterly failed to adduce expert evidence to establish a prima facie case of negligence against them. The failure of the Plaintiff's case cannot be cured by the Defendants' silence. …page 29

Therefore, it is the Court’s finding that there is a break in the chain of causation that dispels the nexus between the 3rd Defendant’s diagnosis and prescription and the supposed injury of the Plaintiff.

The lack of credibility in the Plaintiff's case is further exposed by a stark, irreconcilable contradiction between the testimonies of SP1 and SP2 regarding the photographic evidence of the alleged fibrous layer. When asked during his examination-in-chief as to when the photographs in the Additional Common Bundle were taken, SP1 (the father) insisted that they were taken contemporaneously during the material time of the initial healing process (See Notes of Proceedings (Enclosure 27), paragraph 200). However, during cross-examination, the minor Plaintiff himself, SP2, candidly admitted that these photographs were actually brand new, having been taken only at the end of the year 2025 (paragraphs 827–830).

This admission is fatal to the weight of the photographic evidence. The circumcision was performed on 30 November 2019. If these photographs were taken in late 2025, they represent the child's anatomy nearly six years post-procedure. This timeline directly contradicts the Plaintiff's own pleaded case and SP2’s solemn declaration in his Witness Statement (PSP2, Question 39) that he had fully recovered and healed within four months of the procedure, specifically by 30 March 2020. It is procedurally unacceptable and highly disingenuous for the Plaintiff to present photographs taken in late 2025 as contemporaneous evidence of a clinical injury allegedly sustained in 2019, long after he had admittedly recovered. In the absence of any medical expert to explain the clinical relevance of …page 30 these late-stage photographs, they are completely devoid of evidentiary weight and fail to establish any nexus to the Defendants' actions.

(i). RM100,000.00 for pain and suffering;

It is trite law that pain and suffering as general damages, special damages, and aggravated damages may only be awarded if there is a proven legal wrong. As discussed above, the Plaintiff's claim fails as a matter of liability.

Even if liability had been established, this Court agrees with the Defendants' submission that the Plaintiff’s claim for RM300,000.00 …page 31 in aggravated damages must fail in limine as it was never pleaded in the Statement of Claim. As established by the High Court in Gurmit Kaur Jaswant Singh v. Tung Shin Hospital & Anor [2013] 1 CLJ 699, the failure to plead aggravated damages is fatal to such a claim. Furthermore, following the English Court of Appeal in Richardson v Howie [2004] EWCA Civ 1127, in cases of medical negligence, courts should not ordinarily award a separate head of aggravated damages; any aggravating factors should simply be taken into account when assessing general damages.

As to the costs of future aesthetic corrective surgery, the Plaintiff submitted that the Defendants had failed to cross-examine the Plaintiff’s witnesses and thus it is now admitted as undisputed.

The Defendants contend that there was no need to delve deeper into the question of the said surgery as both SP1 and SP2 did not possess personal knowledge of the claim. SP1, when questioned by the Defendants’ counsel, admitted that he did not know what the aesthetic surgery was for. It was not a defensive answer premised on his lack of medical knowledge, which could have been explainable, but an outright denial. SP2 admitted that he was only following his father's (SP1’s) idea and did not even understand what the surgery was for.

It is this Court’s opinion that the Defendants were correct on this point. There was no benefit to cross-examine either witness further, as they would not have been able to provide any elaboration. This …page 32 is further supplemented by the Plaintiff’s failure to produce receipts, official quotations, or specialist recommendations for the RM35,000 aesthetic surgery claim. Such a failure is fatal to the Plaintiff’s claims as the burden to prove the fact and amount remains on the Plaintiff’s shoulders (see Court of Appeal decision in Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 1 CLJ 611).

Furthermore, from an evidentiary standpoint, the Plaintiff failed to call the maker of the quotation or medical report regarding this RM35,000 aesthetic surgery to testify. I am guided by the Court of Appeal's decision in Sony Electronics (supra), which held that the mere fact that documents are marked as exhibits does not formalise their existence in the absence of correct and proper tendering by the maker. Without the maker to explain the necessity, the medical basis, and the calculation of the RM35,000 sum, the Plaintiff’s claim for these special damages remains obscure, unacceptable, and consequently inadmissible in law.

In conclusion, the Plaintiff failed to prove their entitlement to the damages sought. Conclusion 78. In summary, the ultimate findings of this Court are as follows:

(i). The Plaintiff failed to establish the standard of care required …page 33 of the Defendants through expert evidence as is required by the Bolam test for medical negligence claims. Hence, there is inadequate evidence to establish whether the Defendants breached the duty of care under a tort of negligence.

For the above reasons, this Court dismisses the Plaintiff’s claims in their entirety.

Following the dismissal of the Plaintiff's claim, I turn to the issue of costs. Counsel for the Defendants submitted for costs in the sum of RM20,000.00. In evaluating this quantum, I take into account that although the Plaintiff failed to call a medical expert, the Defendants were nonetheless forced to conduct extensive preparations for a full trial. This included the drafting of comprehensive pleadings, compiling the Bundles of Documents, researching complex medical literature and authorities to rebut the Plaintiff's unpleaded issues, and preparing for the cross-examination of the Plaintiff's witnesses. …page 34 Guided by the principle that costs should follow the event, and considering the time, effort, and complexity of the medical and legal issues navigated by the defence, I find the sum of RM20,000.00 to be fair and reasonable.

Accordingly, the Plaintiff's claim is dismissed in its entirety. Costs are awarded to the Defendants in the fixed sum of RM20,000.00, subject to the payment of the prescribed allocatur fees. Dated 6th July, 2026 ..................................................................................... YA Dr. Hj. John Lee Kien How @ Mohd Johan Lee Judge High Court of Malaya Alor Setar For the Plaintiff: Brijnandan Singh Bhar A/L Gurcharan Singh Messrs. Brijnandan Singh Bhar & Co. Advocates & Solicitors For the Defendants: Muhamad Aiman Bin Mohd Nahzeri Messrs. Omayah Nawal & Partners Advocates & Solicitors …page 35 Legislation referred to: Sections 45, 58(1) of the Evidence Act 1950 Cases referred to: Ahmad Jaafar Abdul Latiff v. Dato’ Bandar Kuala Lumpur [2014] 9 CLJ 861 Empire Holdings Ltd v Ithmaar Development Co Ltd & Ors [2025] 1 MLJ 192 Gurmit Kaur Jaswant Singh v. Tung Shin Hospital & Anor [2013] 1 CLJ 699 Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 1 MLRA 605 Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667 Loo Chooi Gaik v. Dr Loh Lay Soon [2019] 4 CLJ 281 Mohamad Rafiq Faudzil v Dr Adzleen Mahmood & Ors [2023] 2 MLRA 370 Mohd Saufi bin Saman v Dato' Dr Ahmad Murtazam & Ors [2024] CLJU 259 Payremalu Veerappan v. Dr Amarjeet Kaur & Ors [2001] 4 CLJ 380 Pengarah Hospital Gua Musang & Ors v Abdullah Mat [2017] 5 CLJ 335 Richardson v Howie [2004] EWCA Civ 1127 Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944; [2015] 6 MLJ 1 Shalini Kanagaratnam v Pusat Perubatan Universiti Malaya & Anor 6 CLJ 227 Siemens Industry Software Inc v. KB Engineering Coatings Sdn Bhd [2025] 5 CLJ 853 Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 4 CLJ 173 Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 1 CLJ 611 Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609 The Chartered Bank v. Yong Chan [1974] 1 MLJ 157 Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017]