CLEMENT A/L MARIADASS v 1. ) Kerajaan Malaysia (BL-12B-25-12/2024)

HOSPITAL TENGKU AMPUAN JEMAAH DALAM MAHKAMAH SESYEN DI KLANG DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN NO.: BD-A53KP-2-10/2022 ANTARA CLEMENT A/L MARIADASS (NO. K/P:990714-36-5075) ...PLAINTIF

DR. UMMI SAKINAH BINTI ABDUL KADIR ...DEFENDAN-DEFENDAN] GROUNDS OF JUDGMENT Introduction [1] This is an appeal filed by the Appellant against the decision of the Sessions Court Judge ("SCJ") on 13.12.2024 regarding the quantum of general damages given by the SCJ and dismissal of the SCJ on aggravated damages. [2] As a brief background, after a full trial, the learned SCJ found that all Respondents jointly liable in medical negligence for breaches of duty concerning the diagnosis, treatment and medical advice provided to the Appellant. As a result, the Appellant sustained a permanent loss of his right testis. The role of the appellate court on appeal on quantum of damages [3] It is trite that an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. Abdul Hamid Omar LP laid a key principle on the position of an appellate court in dealing with an appeal on quantum of damages in Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 2 MLJ 22 where the Lordship said- "Now, in appeal on quantum of damages, it is essential in order to come to a conclusion, to bear in mind certain principles which are well established. The appeal court is slow, indeed, disinclined to interfere with the judge's finding merely because the appeal court thinks that if the case had been before it in the first instance a lesser sum would have been awarded. Asmi CJ (Malaya) (as he then was) giving the judgment of the Federal Court in Topaiwah v. Salleh [1968] 1 LNS 161; [1968] 1 MLJ 284 said that: In order to justify reversing the trial judge on the question of the amount damages it will generally be necessary that this court should be convinced either that the judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it entirely an erroneous estimate of the damages to which the Perayu is entitled (see Flint v. Lovell [1935] 1 KB 354). The principle that should guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that, either there was an omission on the part of the judge to consider some relevant materials, or he had admitted for purpose of assessment some irrelevant considerations. If the court is satisfied or convinced that the judge had acted upon wrong principle of law then it is justified in reversing; indeed it is the duty to reverse the finding of the trial judge." [4] In Mokhtaruddin Abdullah & Anor v Norizan Rosdi & Ors [1998] 1 LNS 248 Abdul Wahab Patail J (as he then was) held that-A long line of binding authority has established that an appellate Court would be slow to interfere with the award. In Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 1 CLJ 429; [1985] 2 MLJ 22 SC, applying Greenfield v. London and North Eastern Railway Company [1945] KB 89, which held that the principle is not whether the appellate Court might have given rather more or rather less, but only if the trial judge had omitted some relevant consideration or admitted some irrelevant consideration or if the amount is so excessive or insufficient as to be plainly unreasonable. [5] In Rasidin Bin Partorjo v. Frederick Kiai [1976] 1 LNS 123 Wan Suleiman FCJ when delivering the court decision had said this-The principle upon which an appellate court will interfere with an award of damages made by a judge sitting alone has been stated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd (2) at pp 616-617 as follows: Where the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v. Lovell. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court to interfere, whether on the ground of excess or insufficiency. Thus the appellant here has to convince us that the learned trial judge has acted on a wrong principle of law, or has misapprehended the facts, or has for other reasons made a wholly erroneous estimate of the damage suffered. [6] In Amar Singh v. Chin Kiew [1960] 1 LNS 5; [1960] 26 MLJ 77, Thompson CJ (as he then was) held- "...The fixation of damages is so largely a matter of opinion or of impression that differences of calculation or assessment are to be expected. It is an exercise of judicial discretion. Merely disagree with the figure arrived at by the trial judge is no ground for interference unless it is wholly erroneous estimate..." [7] In light of the above, it is incumbent upon this Court, as an appellate court to evaluate whether the appellant have succeeded in establishing that the learned SCJ was plainly wrong in assessing the quantum of damages. Claim for transportation expenses [8] According to the Memorandum of Appeal, the Appellant avers that the learned SCJ erred in failing to allow the full claim of RM500.00 for family transportation. It is submitted by the Appellant that such amount is entirely reasonable and not excessive. [9] In his ground of judgment, the learned SCJ referred to the case of Yeap Cheng Hock v. Kajima Taisei Joint Venture [1971] CLJU 155; [1971] 1 LNS 155 [1973] 1 MLJ 230 where it was held that the claim for special damages must be strictly proved. Since no receipt was produced by the Plaintiff, the said claim was rejected. [10] Regarding this issue, while it is trite that special damages must be both specifically pleaded and strictly proven (see MGG Pillai v. Tan Sri Dato Vincent Tan Chee Yioun & Other Appeals [1995] 2 CLJ 912; [1995] 2 MLJ 493; Sunlite Textile Sdn Bhd v. Motilal Realty Sdn Bhd (Part 2) [2008] 7 CLJ 97; [2007] 5 MLJ 640; Cheong Fatt Tze Mansion Sdn Bhd v. Hotel Continental Sdn Bhd (Hong Hing Thai Enterprise Sdn Bhd, third party) [2010] 1 LNS 980; [2011] 4 MLJ 354), I find that transportation expenses warrant a distinct approach. First, it is an established cultural norm in Malaysia for family members to visit hospitalised relatives. Second, it is unreasonable to expect grieving or distressed relatives to keep meticulous documentary proof of transport expenses incurred during such a critical and difficult period. [11] In view of the above, I allow a global sum of RM250.00 for transportation expenses, calculated reasonably at RM25.00 per trip for a total of 10 trips. Award for loss of a testis [12] The Appellant contends that the learned SCJ's assessment of RM28,000.00 for the loss of the right testis is erroneously low and fails to reflect the current judicial trends. The Appellant draws support from the case of Muhamad Mustaqim Jidin v. Mohd Zulfadhli Radzali & Ors [2017] CLJU 919 where the High Court recognized the gravity of such an injury by granting an award of RM100,000.00. [13] The learned SCJ in his grounds of judgment stated that his assessment was anchored on the Revised Compendium of Personal Injury Awards 2018 which stipulates a guideline range between RM18,000.00 and RM30,000.00 for the loss of a single testis. [14] On this issue, upon reviewing Muhamad Mustaqim Jidin (supra), I note that the plaintiff there was subjected to assault, battery and physical abuse at the Royal Malaysian Air Force (RMAF) Kuching Bachelors' Quarters (Berek Bujang), enduring strikes and kicks across his entire body. Consequently, the plaintiff sustained grievous personal injuries and was diagnosed with post-traumatic testicular hematoma. He subsequently underwent a left orchidectomy due to a testicular neoplasm, resulting in the surgical removal of his left testis. In light of those extensive injuries, the High Court awarded a global sum of RM100,000.00 for general damages, which explicitly encompassed pain and suffering alongside post-traumatic stress disorder (PTSD). [15] In my view, Muhamad Mustaqim Jidin (supra) cannot serve as a reliable guide for the present appeal. The case before this Court does not involve elements of assault, battery or even physical abuse. Rather, it concerns an error in diagnosis that ultimately resulted in the surgical loss of the Appellant's testis. Furthermore, the underlying clinical injury has since resolved following subsequent medical treatment provided by the Respondents. [16] Guidance can be instructively drawn from the case of Abu Hassan bin Ali v. Lee Peng Kong [1977] CLJU 4; [1977] 1 LNS 4; [1977] 1 MLRH 253, where the court awarded a sum of RM28,700.00 to a plaintiff who sustained the following extensive injuries:

laceration over the scrotum and perineum;

complete avulsion of the right testis;

exposure and laceration of the left testis;

avulsion of the right spermatic cord; and

partial severing of the left spermatic cord vessels, leaving the cord intact; and

partial amputation of the penis [17] In light of the above, I find that the award of RM20,000.00 allowed by the learned SCJ is reasonable. Award for aggravated damages [18] The Appellant contends that the learned SCJ is plainly wrong in dismissing the claim for aggravated damages. The Appellant submits that he satisfies the threshold for an award of aggravated damages on the following grounds, inter alia:

profound psychological impact - the Appellant has suffered lifelong emotional distress and mental trauma stemming from the permanent loss of his testis an injury that was entirely preventable had the Respondents adhered to an acceptable standard of care when diagnosing his condition;

evidentiary oversight - the Respondents failed to conduct a standard diagnostic ultrasound examination, which would have ensured an accurate clinical assessment of the Appellant's condition;

failure to escalate care - the Respondents failed to seek a second opinion or consult with more experienced medical practitioners prior to commencing treatment on the Appellant; and

conduct obstructing justice - the Respondents persistently refused to admit liability or acknowledge their clinical errors despite clear and demonstrable negligence, thereby unnecessarily exposing the Appellant to protracted litigation. [19] In rejecting the claim for aggravated damages, the learned SCJ observed that such awards are reserved strictly for exceptional circumstances specifically where there is clear evidence of oppressive, high-handed or insulting conduct. To support this position, the learned SCJ relied on the authoritative precedents of Ahmad Azhar Othman v. Rozana Misbun [2020] 6 CLJ 314 and Chua Chin Soon v. Wong Yew Choong [2025] CLJU 101; [2025] MLJU 120; [2025] 3 MLRH 363. [20] Regarding this issue, the Federal Court through Raus Sharif CJ in Dr Hari Krishnan & Anor v. Megat Noor Ishak Megat Ibrahim & Anor And Another Appeal [2018] 3 CLJ 427; [2018] 3 MLJ 281 gave a guideline when aggravated damages are awarded. The lordship stated- [98] Aggravated damages have in fact been awarded as a separate head of damages by Malaysian courts. In the recent decision of this court in Mohd Ridzwan bin Abdul Razak v. Asmah bt Hj Mohd Nor [2016] 6 CLJ 346; [2016] 4 MLJ 282, the High Court's award of aggravated damages was upheld. This court held that: In appropriate cases, substantial damages may be awarded for any indignity, discomfort or inconvenience suffered; even aggravated damages may be awarded in light of the motive or conduct of the tortfeasor (Rookes v. Barnard [1964] AC 1129(HL) at pp. 1121-1123; W v. Meah [1986] 1 All ER 935). As an analogy, in Appleton v. Garrett [1996] PIQR P 1 aggravated damages were given to patients of a dentist for injury to feelings, mental distress, anger and indignation upon learning that much of the dental treatment given to them was unnecessary and to a large extent performed on healthy teeth. The dentist had deliberately and in bad faith concealed from them the true condition of their teeth so that he could carry out dental work for profit. In the circumstances of this case it was reasonable for the High Court to grant the general and aggravated damages for the proven tort of sexual harassment. [21] In Nur Syarafina Sa'ari v. Kerajaan Malaysia & Ors [2019] 9 CLJ 246, Faizah Jamaludin JC (now JCA) awarded aggravated damages due to the defendants' conduct, specifically their inordinate delay in supplying the plaintiff's medical report. [22] Similarly in Yap Sao Leong & Anor v. Kerajaan Malaysia & Ors [2021] CLJU 33 where See Mee Chun J (as she then was) granted aggravated damages due to the defendants' egregious conduct. This included shifting blame onto the victim's mother, concealing material facts, obstructing justice, pleading false facts, delaying their admission of liability and unnecessarily subjecting the plaintiffs to a protracted trial. [23] A synthesis of the relevant authorities reveals that an award for aggravated damages is contingent upon proof of mala fide or exceptional high-handedness by the defendant. In the absence of such malicious or oppressive intent, a claim for aggravated damages cannot be sustained. [24] On this note, I agree with the learned SCJ that aggravated damages are strictly reserved for exceptional cases. In the present appeal, there is an absolute dearth of evidence to suggest that the Respondents' conduct was marked by exceptional highhandedness, malice, oppression or insult. Rather, this matter arises from an unfortunate misdiagnosis, for which the Appellant has already been adequately compensated by the learned SCJ. Consequently, I find no appealable error on the part of the learned SCJ that warrants appellate intervention. Appeal on interest of 4% [25] The Appellant also appeals against the learned SCJ's decision to disallow interest on special damages. Nevertheless, during the oral hearing of this appeal, the Respondents explicitly indicated that they have no objection to this claim. Consequently, this aspect of the appeal is allowed by consent and interest is hereby awarded on the special damages at the rate of 4% per annum. Conclusion [26] In conclusion, the Appellant's appeal is allowed in part on the following terms:

the award for transportation costs is varied to a global sum of RM250.00;

interest is awarded on the special damages at the rate of 4% per annum from the date of filing of the writ until full settlement; and

there shall be no order as to costs. (SHAMSULBAHRI BIN HAJI IBRAHIM) JUDGE, HIGH COURT OF MALAYA, KLANG SELANGOR Counsel for the Vivekanandan AMS. Periasamy Appellant : Counsel for the FC Sheryn Yong Shi Yee (Messrs. Selvam, Nanda and Partners)