JAY SHREE L. C. DOSHI (secara sendiri dan sebagai Wasi dan Pemegang Amanah Estet Vinayak Prabhakar Pradhan) v 1. ) AHMAD FAIZAL BIN MOHAMAD ALI (WA-21NCvC-126-12/2020)

1.

2.

KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN JUDGMENT 09/09/2024 23:34:10 WA-21NCvC-126-12/2020 Kand. 229 S/N yNkkn61wNkObfrg4FOPQUg

This is a medical negligence suit brought by the Plaintiff for herself and as the executrix of the estate of her deceased husband (“the deceased”) against Ahmad Faizal bin Mohammad Ali (“1st Defendant”), Normala Bt Haji Basiron (“2nd Defendant”) and the Government of Malaysia (“the 3rd Defendant”).

The case proceeded to a full trial for both liability and quantum. Both parties had filed the bundle of pleadings, agreed facts, issues to be tried and Bundle of Documents on the directives of Court. All these formed part of the proceedings.

Besides the documents both parties called witnesses to adduce oral evidence. The Plaintiff called 4 witnesses i.e. the Plaintiff herself (SP1), Dr Oomen George a/l TO George (SP2), Dato’ Lim Chee Wee (SP3) and Dr Steven Bandula (SP4).

The Defendants called 5 witnesses i.e. the 1st Defendant (SD1), the 2nd Defendant (SD2), Dr Fong Chin Heng (SD3) , Dr Chooi Lai Kuan (SD4) and Dr Hasliza binti Md Shahir (SD5). Agreed facts

Amongst the agreed facts are that at the material time the 1st Defendant was an interventional radiologist at the Institut Kanser Negara (“IKN”), Putrajaya and the 2nd Defendant was a plastic surgeon at the Kuala Lumpur General Hospital (“HKL”). Both were the employees of the 3rd Defendant. S/N yNkkn61wNkObfrg4FOPQUg

The deceased suffered thymic neuroendocrine tumor (the tumor”) wherein he had undergone surgery in 1998 and 2004. On 21/9/2017 the deceased was referred to IKN for the recurrence of the tumor. It was discovered that the tumor had spread and enlarged to the chest area of the deceased.

On 9/10/2017 the discovery of the enlarged tumor of the deceased was discussed at the multidisciplinary meeting (TBMM) at IKN attended by various doctors of different discipline including the 1st Defendant. It was decided at the meeting the tumor near the chest referred to as primary mediastinal lesion be treated by localized ablation therapy by way of cyroablation to shrink the size of the tumor.

For the purpose of the ablation of the tumor the deceased was treated by the 1st Defendant. Between 29/11/2017 and 5/12/2017 after discussion with the Plaintiff and the deceased it was decided by the 1st Defendant that the RFA procedure will be adopted to debulk the tumor at the left chest area. The deceased underwent the RFA procedure on 21/12/2017. Issues to be tried

Against the 1st Defendant the agreed issues to be tried was whether the 1st Defendant qualified to carry out the RFA procedure, whether the RFA was a suitable procedure to ablate the tumor, whether the risk of carrying out the RFA procedure properly explained to the Plaintiff and the deceased and whether S/N yNkkn61wNkObfrg4FOPQUg the 1st Defendant had caused trespass to person and battery against the deceased.

Against both the 1st and 2nd Defendant the additional issue was whether they had acted in the manner of the standard of care required from them, whether both the Defendants had acted in the best interest of the deceased.

Against all the Defendants the further issue was whether there was a breach of statutory or fiduciary duty in treating the deceased. Additional issue against the 3rd Defendant was the issue of vicarious liability in the event negligence is proven against the 1st and 2nd Defendants.

The final issue was whether the Plaintiffs entitled to the relief asked for. Burden and standard of proof

The burden of proof is upon the Plaintiff to prove negligence against the 1st and 2nd Defendant. This is clear from the provisions of the Evidence Act 1950. The relevant provisions are reproduced here for ease of reference.

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of S/N yNkkn61wNkObfrg4FOPQUg facts which he asserts, must prove that those facts exist.

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

A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts. Section 102 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. S/N yNkkn61wNkObfrg4FOPQUg If no evidence were given on either side, B would be entitled to his possession. Therefore the burden of proof is on A.

A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by Section 103 The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.

B wishes the court to believe that at the time in question he was elsewhere. He must prove it.

The standard of proof as in all civil case is a proof on a balance of probabilities. Whether this standard has been achieved will be determined by the Court after evaluating the entire evidence adduced by the parties. S/N yNkkn61wNkObfrg4FOPQUg

In a medical negligence the evaluation by the Court includes the evidence of experts in line with section 45 of the Evidence Act 1950

When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

Such persons are called experts.

The question is whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.

The question is whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether symptoms exhibited by A commonly show S/N yNkkn61wNkObfrg4FOPQUg unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do or of knowing that what they do is either wrong or contrary to law, are relevant.

The question is whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons are relevant. Duty of care

It is a general principle in a negligence claim that there must be a relation between the parties to give rise to a duty of care. In this case there was such a relationship, the deceased being the patient who was treated both by the 1st and 2nd Defendants. Lord Hewart in R V Bateman [1925] 94 LBKB 79 has aptly described duty of care as follows: If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, S/N yNkkn61wNkObfrg4FOPQUg care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward. Standard of care

In the case of Foo Fio Na V Dr Soo Fook Mun [2007] 1 CLJ 229 the Federal Court stated thus: [39] That said, we are of the opinion that the Bolam test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment. The practitioner is duty bound by law to inform his patient who is capable of understanding and appreciating such information of the risks involved in any proposed treatment so as to enable the patient to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment.

The Federal Court in the case of Zulhasminar & Anor. V Dr Kuppu Velumani &Ors [2017] 8 CLJ 605 after discussing all the authorities on standard of care concluded “[97] Based on the foregoing, we will answer question 1 in the following manner. The test propounded by the Australian case in Rogers v. Whitaker and followed by this court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with S/N yNkkn61wNkObfrg4FOPQUg any proposed treatment and does not extend to diagnosis or treatment. With regard to the standard of care for diagnosis or treatment, the Bolam test still applies, subject to qualifications as decided by the House of Lords in Bolitho.

With regards to Bolan test the Federal court decided “[95] Given the fact that there are genuine differences in opinion in diagnosis and treatment, it is therefore not a matter that the court can, or is, equipped to resolve. It is in this context that the Bolam test makes good sense. It requires the court to accept, not just the views of medical experts simpliciter, but the views of a responsible body of men skilled in that particular discipline. It removes from the courts the responsibility of resolving a dispute that is not equipped to resolve.

With regards to Roger V Whittaker the Federal Court stated thus: “[96] On the other hand, different consideration ought to apply to the duty to advise of risks as opposed to diagnosis and treatment. That duty is said to be noted in the right of self-determination. As decided by the Australian High Court in Rogers v. Whitaker and followed by this court in Foo Fio Na, it is now the courts' (rather than a body of respected medical practitioners) which will decide whether a patient has been properly advised of the risks associated with a proposed treatment. The courts would no longer look to what a body of respectable members of the medical profession would do as S/N yNkkn61wNkObfrg4FOPQUg the yardstick to govern the standard of care expected in respect of the duty to advise.

Guided by the above principles the Court proceeded to evaluate the evidence adduced by both parties in this case. Claim against 1st Defendant i) Advise given to the Plaintiff and the deceased

In the Court’s view in determining whether proper advise and information was given to the deceased and the Plaintiff before the RFA procedure was undertaken, only the testimony of the Plaintiff and the 1st Defendant is relevant as they are the only persons having personal knowledge of what transpired before the surgery was done. The opinion of others including experts cannot be taken into account as they are merely testifying from records given to them.

It is the contention of the Plaintiff that the 1st Defendant had failed to inform her or the deceased that the TBMM had recommended cyroablation. The Plaintiff only found out about this after the death of the deceased when she received the medical report of the deceased dated 24/8/2020 from IKN.

The Plaintiff also alleges that the 1st Defendant had failed to explain the risk of the burn injury using the RFA procedure especially since the procedure was done close to the skin. S/N yNkkn61wNkObfrg4FOPQUg

The 1st Defendant had also failed to inform the Plaintiff or the deceased of the exact area where the RFA procedure would be done. The deceased and the Plaintiff were under the impression that the procedure was debulk the medistainal lesion and not the subdermal tumor.

The 1st Defendant in his testimony did not respond to the contention that he had not informed the recommendation of the TBMM to the Plaintiff and the deceased. Instead in his witness statement the 1st Defendant contended that the TBMM had recommended both cyroablation and RFA.

The 1st Defendant denied that he had not explained the risk involved in carrying out the RFA procedure. The 1st Defendant also testified that he had explained that the RFA procedure was to ablate the tumour.

After considering the testimony of this 2 witnesses the Court decided that whatever was decided at the TBMM was an important information to be conveyed to the Plaintiff and the deceased. This is despite the fact that the Plaintiff and the deceased did not attend the meeting although they were invited to do so. By not challenging the Plaintiff’s contention that she was not informed of the decision of the TBMM the 1st Defendant has admitted that he did not so inform.

Even more pertinent is the fact that at the TBMM concerns were raised as to further treat the tumour as the tumour was close to the S/N yNkkn61wNkObfrg4FOPQUg heart of the deceased. This was the reason why the medical officers present were reluctant to carry out further treatment. The 1st Defendant then volunteered to attempt the treatment.

The reluctance of the doctors attending the TBMM and the concerns of the risks of further treatment is in the Court’s view an important information to be conveyed to the Plaintiff. The 1st Defendant on the converse informed the deceased and the Plaintiff that the RFA procedure carried a minimal risk. This induced the deceased and the Plaintiff to agree to the RFA procedure.

In the Court’s view if the deceased or the Plaintiff had a slightest inkling of any potential risk or were informed of the concerns raised at the TBMM, they would have sought a second opinion both in Malaysia and abroad. They had the ability and capability to do so.

An imminent risk in the RFA procedure as testified by the Plaintiff’s expert is a burn injury to the skin as the procedure was conducted close to the skin. The 1st Defendant on the other hand was of the opinion that burn risk was minimal and rare. Having such an opinion it goes without saying that the risk of the burn injury was not informed to the Plaintiff.

On the imminent danger of burn injury to the skin, the Court accepts the opinion of the Plaintiff’s expert. As such the risk of burn injury to the skin was a vital information to be conveyed to the Plaintiff and the deceased.

The Court also finds that no proper plan of the RFA procedure to be undertaken was discussed with the Plaintiff or the deceased. S/N yNkkn61wNkObfrg4FOPQUg The 1st Defendant only informed the Plaintiff and the deceased that the objective of the procedure was to ablate the tumour. No details of the location and the manner the procedure was to be undertaken was explained to the Plaintiff or the deceased.

It is also questionable whether the 1st Defendant had prepared a detailed surgery plan. The non-preparation of such a plan was maybe the reason why the Plaintiff and the deceased were in the dark of the actual objective of the procedure.

Taking all this factors into consideration the Court rules that the 1st Defendant had breached the duty of care expected from him in securing a proper consent from the Plaintiff and the deceased before carrying out the RFA procedure. RFA a suitable procedure?

In this case it was agreed by all the experts at the TBMM, even the expert called by the Plaintiff that ablation of the tumour was the best way forward in the treatment of the tumour.

The medical officers present at the TBMM which included the 1st Defendant decided that the cyroablation method of ablation was the more suitable in this case. This agreement at the meeting was noted in the minutes and the minutes are adduced in Court as evidence. The Plaintiff’s expert is also of the same opinion and stated in his opinion cyroablation was more suitable especially noting the proximity of the tumour to the surface of the chest. S/N yNkkn61wNkObfrg4FOPQUg

The 1st Defendant’s had a different view and opinion and after examining the deceased, had determined the RFA procedure to more suitable. The Plaintiff’s expert in his testimony did not entirely disagree with the 1st Defendant’s opinion. The Plaintiff’s expert admitted that RFA was a recognised method and in fact was gaining momentum as a procedure to ablate a tumour. In short the Plaintiff’s expert did not dismiss the 1st Defendant’s opinion outright.

Differences in opinion amongst experts is normal in any field and this diverse views cannot be a basis to determine the negligence of the 1st Defendant. The Court ruled that the 1st Defendant did not breach his duty of care in using the RFA procedure.

Further the expert called by the Defendants Dr Fong Chin Heng confirmed that the RFA procedure conducted on the deceased had met its objectives in reducing the size of the tumour by 20 to 25%

In Bolan’s case on the duty and standard of care of a doctor vis a vis a patient, McNair J made this pronouncement: “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.” S/N yNkkn61wNkObfrg4FOPQUg

As the RFA procedure is ruled as suitable in this case the 1st Defendant could not have said to be liable for trespass and battery upon the deceased. Manner the RFA was done

The location and the type of the tumour is undisputed and is clearly shown in the photographs and diagrams tendered in Court. It is clear the 1st Defendant’s plan was to ablate the part of tumour near the skin.

In his evidence the Plaintiff’s expert certain added precautions have to be undertaken to lessen the risk of burn injury to the skin. This includes selection of an appropriate thermal ablative modality, monitoring thermal dissipation to the skin and other protective measures.

There is no evidence in this case whether the 1st Defendant had undertaken the appropriate precautions to prevent burnt injury to the skin. In the Court’s view the 1st Defendant had not done since in his mind burn injury to the skin was minimal and rare.

The only precaution the 1st Defendant took was to place a cooling liquid bottle on the chest. This is shown in the diagram tendered in

The Plaintiff’s expert had expressed his opinion that this placing the bottle on the chest is not a proper method to prevent burn injury. The more appropriate measure would be for chilled saline S/N yNkkn61wNkObfrg4FOPQUg pumped through the chamber shaft of the needle preventing overheating. This according to the expert was now the standard approach in RFA procedure. This was not done in this case by the 1st Defendant.

The Court view accepted the testimony of the Plaintiff’s expert that the pumping of the cooling saline should have been adopted by the 1st Defendant instead of just putting the cold bottle on the chest.

Taking into account the testimony of the Plaintiff’s expert the Court will go as far to say that the 1st Defendant was not qualified to carry out the RFA procedure in a proper manner in this case. His volunteering to do the procedure although laudable was improper and reckless.

The Court is of the view that the 1st Defendant’s duty of care extends beyond just carrying out the RFA procedure. It also includes aftercare of the patient. Before carrying out the procedure the 1st Defendant had assured the deceased and the Plaintiff that the deceased would recover and could even be discharged the next day.

The deceased not only could not be discharged early but he suffered such a horrific burn that it did not heal even after months of treatment. The 1st Defendant was informed of the burn injury by the Plaintiff in a series of messages yet the 1st Defendant’s reaction and response was nonchalant and devoid of any concern. S/N yNkkn61wNkObfrg4FOPQUg He was more anxious to attend to attend a friend’s party and rushed off after carrying out the procedure.

The 1st Defendant was duty bound to do a follow up treatment and visit the deceased. All he did was to inform the Plaintiff to inform the nurse to give strong pain killer. The nurse in turn informed the Plaintiff she had no access to a strong painkiller. Practically the 1st Defendant had let the Plaintiff and the deceased to fend on their own despite assuring the Plaintiff and the deceased that the RFA procedure was minimal invasive procedure with no risk.

Based on all the factors above the Court concludes that the Plaintiff has discharged the burden of proof placed upon them in proving on the balance of probabilities the claim of negligence against the 1st Defendant. Claim against the 2nd Defendant

The evidence shows that the 2nd Defendant was the Head of Department of the Plastic and Reconstructive Department (“the Department”) of HKL. The deceased was referred to the Department on 26/12/2017 and was examined by Dr. Salmi binti Mohammed and Dr Mior Faik. The deceased then attended for a follow up and was again examined by Dr. Salmi on 29/12/2017 and 2/1/2018.

The 2nd Defendant met the deceased for the 1st time on 8/1/2018 and according to the 2nd Defendant the condition of the deceased was good and he could communicate well and had no fever. The S/N yNkkn61wNkObfrg4FOPQUg 2nd Defendant referred the deceased for a CT scan of neck and thorax which was fixed on 11/1/2018.

On looking at the CT scan the 2nd Defendant after a discussion with the HKL Thoracic surgery team decided that resection of the residual tumour together with unhealthy necrotic tissue and wound coverage was required but it carried a high risk of morbidity and mortality.

The 2nd Defendant had explained the risk of the procedure to the deceased. The deceased did not return for the follow up and the 2nd Defendant was not informed of the reason. This was also the reason why plastic surgery or any other surgery could not be done.

A witness called by the Plaintiff Dr Oomen George examined the deceased at KPJ Damansara Specialist Hospital where he dressed the wound of the deceased after the deceased did not go for follow up in HKL. This doctor was later informed by the deceased in March that he had undergone 3 debridement in Singapore.

In the Court’s view the Plaintiff and the deceased had exercised their right to a follow up treatment in Singapore. Whatever treatment done in Singapore cannot be used as a yardstick to determine or proof negligence of the 2nd Defendant.

The 2nd Defendant’s owed a duty of care towards the deceased only from the date when she first saw the deceased on the 8/1/2018. Before that the deceased was examined and treated by S/N yNkkn61wNkObfrg4FOPQUg other doctors. The 2nd Defendant could not be said to have any duty of care or even be vicariously liable for the treatment carried out by other medical officers despite being the head of the Department.

The 2nd Defendant’s direction to conduct the CT scan was appropriate and could not be seen to be any breach of duty of care and in fact it was consistent with the duty of care owed. The treatment by the 2nd Defendant to dress the wound was also appropriate as no infection was detected. In fact Dr Oomen George a witness called by the Plaintiff also just dressed the burn injury when the deceased was referred to him.

The decision of the deceased and the Plaintiff not to go for a follow up at HKL was their own decision. The 2nd Defendant therefore cannot be blamed for not further treating the deceased.

In short the Court rules that the Plaintiff has failed to prove any negligence against the 2nd Defendant. Vicarious liability of the 3rd Defendant

It is an undisputed fact that the 1st Defendant is an employee of the 3rd Defendant and as such the 3rd defendant is vicariously liable for the negligence of the 1st Defendant. There are a plethora of cases which the Court do not wish to delve in here, which has attributed vicarious liability upon the employer for the negligence of an employee. S/N yNkkn61wNkObfrg4FOPQUg

In their submission the Plaintiff have submitted unwittingly against vicarious liability by alleging that the 1st Defendant acted on the frolic of his own in undertaking the RFA procedure instead of cyroablation.

However since the Court has decided that RFA is an acceptable medical procedure undertaken by the 1st Defendant, the 1st Defendant could not be said to acting on the frolic of his own. Therefore the Court rules that the 3rd Defendant is vicariously liable for the negligence of the 1st Defendant.

The Plaintiff has brought this action both on her own behalf and the estate of the deceased under section 7 and section 8 of the Civil Law Act 1956.

Section 7(1) of the Civil Law act provides as follows: 1) Whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to an offence under the Penal Code [Act 574]. S/N yNkkn61wNkObfrg4FOPQUg

In this case the Court is of the view that the death of the deceased was inevitable sooner or later taking into account the recurrent tumour and the complications thereof suffered by the deceased. The cause of death cannot be attributed to the negligence of the 1st Defendant.

However what could have been avoided is the pain and suffering of the deceased as well as that of the Plaintiff, who the Court accepted as evidence, devoted her entire time after the surgery done by the 1st Defendant to take care of the deceased.

The proper provision that is applicable in the Court’s view in this case is section 8 of the Civil Law Act 1956 which states:

Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery.

Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person - S/N yNkkn61wNkObfrg4FOPQUg

shall not include any exemplary damages, any damages for bereavement made under subsection 7(3A), any damages for loss of expectation of life and any damages for loss of earnings in respect of any period after that person's death; [(a) Am. Act A602:s.3]

in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; and

where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless proceedings against him in respect of that cause of action either -

were pending at the date of his death; or S/N yNkkn61wNkObfrg4FOPQUg

are taken not later than six months after his personal representative took out representation.

Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this section, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

The rights conferred by this section for the benefit of the estate of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by section 7 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said section as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of S/N yNkkn61wNkObfrg4FOPQUg unliquidated damages arising otherwise than by a contract, promise or breach of trust.

In awarding damages the Court in this case considered the fact that before the RFA procedure the deceased was a healthy person living a full life and also enjoying outdoor family vacations. After the surgery the deceased was bedridden and suffered excruciating pain and had to undergo various medical procedures especially in Singapore. The Plaintiff was dragged in with the task of taking full time care of the deceased.

The principle in awarding damages is to compensate both the deceased and the family for the pain and suffering resulting from the negligence of the 1st Defendant. However the Court is also mindful of the fact that the damages awarded must not be so exorbitant as to generate a profit to the affected persons.

The Plaintiff and the deceased are eligible to be awarded both special and general damages. In this case in their submissions the Plaintiff had specified the expenses that they had incurred supported by documents tendered in Court. The Court allowed the special damages as specified in paragraphs 137.1 to 137.4 of the written submissions filed by the Plaintiff but disallows legal cost of taking out the grant of probate.

For general damages the Court allows a sum of RM800,000 to both the deceased and the Plaintiff for the pain and suffering. S/N yNkkn61wNkObfrg4FOPQUg

Apart from general and special damages in this case the Court also allows aggravated damages of RM500, 000. The aggravated damages is awarded as a punishment to the 1st Defendant who showed no compassion even after being notified of the horrific burns suffered by the deceased. The 1st Defendant also took a lackadaisical attitude in responding to the distress of the Plaintiff and the deceased. Even while testifying in court the 1st Defendant did not show any remorse for the pain and suffering he had caused and instead showed an over smart attitude in answering questions posed by the counsels.

Finally the Court awarded a cost of RM250, 000 to the Plaintiff against the 1st and 3rd Defendants and a cost of RM 30,000 to the 2nd Defendant against the Plaintiff. Dated: 5.9.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur

Lord Hewart in R V Bateman [1925] 94 LBKB 79; S/N yNkkn61wNkObfrg4FOPQUg

Foo Fio Na V Dr Soo Fook Mun [2007] 1 CLJ 229;

Zulhasminar & Anor. V Dr Kuppu Velumani &Ors [2017] 8 CLJ

PARTIES For the Plaintiff: Nama Peguamcara: Ambiga; James Khong; Edwin Lim Tetuan James Khong A3-2-8, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 Kuala Lumpur. For the Defendant: Nama Peguamcara: Saravanan a/l Kuppusamy; Noorul Fhaiez Jabatan Peguam Negara, Putrajaya Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. S/N yNkkn61wNkObfrg4FOPQUg