Mohamad Foyaz bin Shamsul Alam (menyaman bagi pihak sendiri dan bagi estet Kamaliah Binti Mat Sari, simati) v Kerajaan Malaysia (WA-21NCvC-61-04/2022)

Kerajaan Malaysia 2. Dr Abu Yazid bin Abu Othman 3. Dr Rathimalar a/p Kerisnan 4. Dr Munirah binti Mohd Arif Kor 5. Dr Rohini Velangaya 6. Dr Shahzarul Fazril bin Lin 7. Dr Lavitha Sivapatham 8. Dr Sharmila Saraswathy Shanmugam 9. Dr Muralitharan Ganesalingam 10. Dr Siti Nurliana Osman 11. Dr Puteri Helena Rosli 12. Dr Azreen Zulaikha bt Zulkifli 13. Dr Hamidah binti Ibrahim 14. Dr Tan Kah Loong 15. Dr Emily Christine D’ Silva 16. Dr Wan Shahrul Liza 17. Dr Liyana Mastura bt Azham 18. Dr Farhana Aini binti Ramzah 28/01/2025 17:16:57 WA-21NCvC-61-04/2022 Kand. 49 GUAMAN NO: WA-21NCvC-61-04/2022 19. Dr Maz Airin Bt Abdul Azis 20. Dr Mohd Sany bin Shoib 21. Dr Rosnah binti Ab Latif 22. Dr Fakhirudin bin Mohd Razali 23. Dr Ainun Nadwah binti Abdul Raof 24. Dr Noor Aiman binti Mohd Noor 25. Dr Nabilah binti Sohif 26. Dr Ahmad Rafidi bin Lebai Kamaludin 27. Dr Sri Rahayu binti Mohamed Lokman 28. Dr Amy Anuradah a/p Jaganathan 29. Dr Raziman bin Abdul Razak 30. Dr Nur Salwani binti Alias 31. Dr Kalaivani a/p Manoharan 32. Dr Ikhlas bin Mat Yasin @ Hashim 33. Dr Nur Nadia Idayu bin Abdul Mutalib 34. Dr Norazinizah bt Ahmad Miswan 35. Dr Chung Sein Yen 36. Dr Zahidah Izyan binti Mohamed Munawar 37. Dr Johari Talep 38. Dr Mohd Izzuddin Abu Bakar 39. Dr Geethamalar a/p Ponniah 40. Dr Harin a/l Navalan 41. JT Norfaziedah Mahmood 42. JM Siti Amira Zainal Abidin 43. JM Noor Aini binti Mohamad Din 44. SN Norfaziedah Mahmood 45. SN Nor Afiza Abdullah 46. JT Nor Farhana Mohd Aseri 47. SN Mathavi a/p Superamaniam GUAMAN NO: WA-21NCvC-61-04/2022 48. SN Noorhidayah Abdul Latif 49. JT Rasida Razemin 50. JT Suryani Madzlan 51. SN Muhammad Faizul Rasseli 52. JT Athirah Zahidah binti Zakaria 53. JT Siti Zaharah Miskam 54. JT Nur Aifaa Atiqah Mokhtar 55. JT Nazlia Ishak 56. SN Nurul Eyliana Elias ... Defendan-defendan GROUNDS OF JUDGMENT Introduction [1] The Plaintiff was a Rohingya refugee living in Malaysia under the United Nations High Commissioner for Refugees (UNHCR) program. For the trial of this action, his counsel applied for him to testify from New Zealand via the Zoom internet platform. In his evidence via Zoom, he disclosed that he had received the privilege of resettlement in New Zealand and had in fact moved to Auckland with his daughter Amaliah on 15th July

He further confirmed that they have been given the status of Permanent Resident of New Zealand and have been receiving benefits from the Government of New Zealand. These facts are relevant because he filed this civil suit on 25th April 2022, less than three months before he departed permanently for New Zealand. [2] In April 2022, the Plaintiff had filed this civil suit naming 56 defendants; the 1st Defendant is the Government of Malaysia, the 2nd Defendant to the 40th Defendant are 39 doctors while the remaining 16 defendants are hospital staff, alleging negligence in the medical treatment provided for his wife. [3] Even though the Plaintiff was a Rohingya refugee in Malaysia and the hospital patient who died was a citizen of Indonesia by the name of Kamaliah binti Mat Sari, the learned Senior Federal Counsel who appeared for all 56 defendants acknowledged that the Plaintiff was the husband of the late Kamaliah binti Mat Sari (“Kamaliah”) and also conceded vicarious liability on the part of the 1st Defendant. I found this quite surprising because whilst under cross-examination, the Plaintiff could not even remember the year when he married Kamaliah. His “marriage certificate” showed a date of 10th April 2017 while he said he remembers that he got married in year

In the light of the 1st Defendant’s decision to admit liability, this point is inconsequential. [4] The acknowledgment of liability on the part of the 1st Defendant led to the Plaintiff discontinuing his action against the 2nd Defendant to the 56th Defendant, i.e. against 55 defendants. I therefore made an order striking out the Plaintiff’s claim against those 55 defendants, with no order as to costs. The trial was proceeded with, for the Plaintiff to prove the damages that he was claiming against the 1st Defendant (the Government of Malaysia). [5] After hearing oral evidence and reading the written submissions of both sides, I decided to award the Plaintiff a total judgment sum of RM169,400.50, interest and costs. The details are as follows.

Special Damages of RM25,000.50; and

General Damages of RM144,400.00 comprising of:

RM10,000.00 being the statutory amount fixed for “bereavement” under S.7(3A) of the Civil Law Act 1956 (pre-amendment version as was applicable when the cause of action arose in May 2019);

(ii) RM134,400.00 for loss of support;

Pre-judgment interest was awarded at 4% per annum for Special Damages and 5% per annum on General Damages respectively, from the date of Writ on 25th April 2022 till date of judgment on 1st July 2024, and post-judgment interest at the rate of 5% per annum on the total judgment sum of RM169,400.50 from 1st July 2024 till date of payment.

Costs of RM20,000.00 was awarded to the Plaintiff. The full grounds for my above award are as explained below. Background Facts [6] As mentioned above, the 1st Defendant did not dispute that the Plaintiff is the husband of the late Kamaliah. [7] It is undisputed that the late Kamaliah, who was pregnant in the year 2018, was admitted on 13th April 2019 into a government hospital known as Hospital Ampang. She was discharged and advised to go to the said hospital on 23rd April 2019 to ‘induce labour’ for delivery of her baby. For some unknown reasons, the late Kamaliah failed to turn up and when she turned up on 26th April 2019, she was in ‘active labour’. After delivering her baby, she suffered post-partum haemorrhage (a medical terminology meaning excessive bleeding shortly after delivery) and subsequently passed away. The Plaintiff’s position is that there was medical negligence in failing to stop the bleeding which led to her death. [8] As alluded to above, the Plaintiff and his daughter had been resettled in New Zealand since July 2022, i.e. shortly after the filing of this civil suit. They are now permanent residents of New Zealand and have been receiving monetary and other benefits from the Government of New Zealand, which include free education for Amaliah until the age of 16. These facts were information disclosed by the Plaintiff whilst under cross-examination during the trial. The Plaintiff’s Claim [9] The following items of damages and costs were claimed by the Plaintiff.

RM594,353.76 as “the cost of the Plaintiff caring for his daughter (childcare services) until she reaches adulthood”;

(ii) RM140,799-36 as the “loss of contribution”;

(iii) RM10,000.00 statutory bereavement; and

(iv) RM198,000.00 (at the rate of RM1,500.00 per month for 11 years) being “the value of care and services provided by the Plaintiff to his daughter”. B. Special Damages

RM5,048.50 being hospital and medical expenses;

(vi) RM1,440.00 for funeral expenses;

(vii) RM3312.00 being the cost of baby formula;

(viii) RM10,000.00 being the cost of obtaining pre-action discovery of the medical records; and

(ix) RM95,000.00 being the “value of care and services provided to his daughter at the rate of RM2,500 per month for 38 months (from May 2019 until July 2022)”. Pre-trial Damages a. RM31,500.00 being “the value of care and services provided to Amaliah by Foyaz from August 2022 till May 2024”. Costs claimed by the Plaintiff RM255,778.95 [10] The grand total amount of damages claimed by the Plaintiff is RM1,345,232.12 (before adding interest), as set out in the written submissions of learned counsel for the Plaintiff. [11] Two witnesses testified for the Plaintiff. The first witness was a consultant obstetrician & gynaecologist. His evidence was his professional view on the negligence of the Defendants. The second witness was the Plaintiff himself – as alluded to above, by Zoom platform from New Zealand where he has been a Permanent Resident since July 2022 – on the quantum of damages that he is claiming. The 1st Defendant’s Stand [12] Since liability was admitted, learned Federal Counsel (“FC”), who appeared for the 1st Defendant, decided not to call any witness. Instead, she relied on the pleadings and evidence adduced by the Plaintiff as well as the answers given by the Plaintiff under cross-examination to support her submissions. [13] The learned FC agreed that the Plaintiff is entitled to claim RM10,000.00 for “bereavement” pursuant to the Civil Law Act 1956. [14] It was further submitted by the learned FC, inter alia, that the Plaintiff failed to prove that he had relied on the deceased Kamaliah for any financial support, and that in any event, the Plaintiff had admitted that there is no evidence to support his averment that the late Kamaliah was working and earning. Analysis of the Evidence and Law [15] First, in para 13 and 14 of his submissions, learned counsel for the Plaintiff made it seem as if the learned Federal Counsel had unnecessarily raised an objection about the Plaintiff relying on S.8 of the Civil Law Act

Learned counsel for the Plaintiff submitted that S.8 and letters of administration are irrelevant because the Plaintiff is claiming damages only pursuant to S.7 of the Civil Law Act 1956. In order to verify whether the learned FC was raising an unnecessary objection, I perused the Plaintiff’s Statement of Claim and found that in para 1 thereof, he did plead “termasuk dirinya sendiri, di bawah seksyen 7 dan 8 Akta Undang-undang Sivil 1956.” In fairness to the learned FC, she was justified to raise her objection in light of the Plaintiff’s Statement of Claim referring to S.8 of the Civil Law Act 1956. [16] Since learned counsel for the Plaintiff had, in his submissions, conceded that the Plaintiff did not obtain Letters of Administration for the late Kamaliah’s Estate and was therefore not entitled to claim pursuant to S.8 of the Civil Law Act 1956, the Plaintiff’s claim shall be considered only for “loss of support” under S.7 of the said Act. [17] The intitulement on the Writ filed by the Plaintiff stated that he is suing for himself and for the Estate of Kamaliah binti Mat Sari, deceased. His daughter’s name was not mentioned at all. A screenshot of the intitulement of his Writ (Enclosure 1) is pasted below [18] Even though the Plaintiff’s daughter’s name “Amaliah binti Mohamad Foyaz” is mentioned at para 22.7 of his Statement of Claim, I am bound by S.7(7) of the Civil Law Act 1956 that makes it mandatory for the full particulars of the persons intending to claim in the action and the nature of his/her/their claim to be stated in the Writ. S.7(7) uses the word “shall”, to require that: “The plaint or writ or summons in any such action shall give full particulars of the person or persons for whom or on whose behalf the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered.” (emphasis added) [19] So as to ensure that I have not overlooked any mention of the daughter’s name in the Writ (Enclosure 1), I read the whole Writ, including the endorsement of claim in the Writ (at page 3 of Enclosure1) and found that his daughter’s name was indeed not mentioned at all. The endorsement of claim merely states that the Plaintiff’s claim is for General Damages, Aggravated Damages, Special Damages, interest and costs against the Defendants for negligence and dereliction of other duties. A screenshot of the said endorsement – which does not show any claim being made on behalf of his daughter – is pasted below. [20] Is it mandatory for the Writ to state the full particulars of the daughter and the nature of her claim in respect of which damages are sought to be recovered under S.7 of the Civil Law Act? [21] Based on the authorities, I would answer the above question in the affirmative; Yes, it is mandatory due to two reasons. First, the word “shall” is used in S.7(7) of the Civil Law Act 1956: “the writ … SHALL give full particulars of the person … for whom the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered.” [22] Secondly, the Federal Court had held that a claim under S.7 must be determined strictly within the confines of the statute. In Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) [2018] 3 MLJ 184, the Federal Court (majority judgment) reiterated the words of an earlier Federal Court judgment in Sambu Pernas Construction & Anor v Pitchakkaran [1982] 1 MLJ 269 and explained as follows: “[168] This court in Sambu Pernas Construction & Anor v Pitchakkaran [1982] 1 MLJ 269 (‘Sambu Pernas’) explained the legal position with regard to ss 7 and 8 of the CLA as follows: At common law, the death of a person gives rise to two principles. The first is that the death of any person is not a civil wrong. Therefore, no action can be founded on it although death may result in pecuniary losses or damages to the deceased’s spouse and children. Lord Ellenborough CJ in Baker v Bolton ruled that ‘in a civil court the death of a human being could not be complained of as an injury’. The second principle was that when a person died any cause of action which was vested either in his favour or against him at the time of death was buried with him. In other words, the cause of action did not survive the death: ‘actio personalis moritur cum persona’. … Had it not been for ss 7 and 8 of the Civil Law Act it is clear that the respondent could not have the right to bring the suit, and having acted under these sections and in particular s 7, his case must stand and fall on the basis of these sections.” The Federal Court in Ketua Polis Negara (supra) went on to conclude as follows: “[169] In other words, as the right of the dependants of a deceased person and the estate of a deceased person to claim for damages is conferred by statute, that claim must be determined strictly within the confines of the statute.” (emphasis added) [23] In light of the judgment of the Federal Court in Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar (supra), and the word “shall” in S.7(7) of the Civil Law Act 1956, I am constrained to rule that the Plaintiff’s omission to state the name of his daughter and the nature of her claim in the Writ (Enclosure 1) to be fatal. Even if the nature of the daughter’s claim is not stated, the Plaintiff could have sued as the “father and next friend” of his daughter. He did not do so. S.7(7) is a mandatory statutory provision, the breach of which is fatal. It is not a technical rule of court. Therefore, the Plaintiff is entitled to claim only for his own “loss of support”. [24] Even though the Plaintiff stated “Estet Kamaliah binti Mat Sari” in the intitulement of the Writ, as pointed out earlier above, he cannot claim for the Estate of Kamaliah under S.8 Civil Law Act 1956 because he did not apply for Letters of Administration to be appointed as the administrator of her estate. [25] “Loss of support” had been defined by the Supreme Court in Chan Chin Ming v. Lim Yok Eng [1994] 3 MLJ 233 with the following words: “However, under s 7 of the Civil Law Act 1956, the persons entitled to claim such loss of support in respect of a deceased person are the wife, husband, parent and child only, not including a brother or a sister. …. Further, in our opinion, loss of support is for all practical purposes translated into financial loss sustained by a dependant. Having regard to the class of persons entitled as stated above, it is a logical conclusion to say that a plaintiff can only claim in such a case for financial loss which he sustains as a dependant and not in any other way.” (emphasis added) [26] The principle of law applicable when deciding on damages to be awarded in personal injury cases has been repeated numerous times in illuminating judgments of the superior courts. Forty-five years ago in 1981, the Federal Court in Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292 had stated the principle that damages are intended to serve as compensation, must be fair, adequate but not excessive. The exact words of the Federal Court then are as follows: “It must be remembered that the purpose of damages is to try, so far as humanly possible, to put the victim back to the position he would have been in but for the accident. The damages must be fair, adequate and not excessive.” (emphasis added) [27] Thirty-five years later, the Federal Court issued a ‘reminder’ in Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1 to caution judges against being motivated by sympathy when awarding damages in personal injury case. In other words, a judge’s sympathy for an impoverished or suffering plaintiff must not lead to a higher quantum being awarded. Compensation to be awarded must be based on cogent evidence. The relevant passage of the ‘reminder’ in the judgment of the Federal Court is as follows: “It is trite that damages serve as compensation, not a reward, less still a punishment (see Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324). In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence.” (emphasis added) [28] With respect, I find the Plaintiff’s claim for a sum of RM594,353.76 as “the cost of the Plaintiff caring for his daughter until she reaches adulthood” to be excessive and unsustainable in law and in fact. The Plaintiff is claiming damages of RM594,353-76 (NZ$205,920) for “cost of childcare services” until his daughter reaches the age of 16, i.e. for a period of 11 years. [29] The Plaintiff’s claim for RM594,353-76 is for a period of 11 years, i.e. RM54,032.16 per year, RM4,502.68 per month. To put in perspective, the Plaintiff is asking this Court to order the 1st Defendant (the Government of Malaysia) to pay him RM4,502.68 every month for 11 years to pay the “cost of childcare services” until his daughter reaches the age of 16 in New Zealand. Whilst this Court may be empathetic towards his daughter who lost her mother, I must bear in mind the Federal Court’s reminder in Inas Faiqah bt Mohd Helmi (supra) not to be motivated by sympathy. [30] Empathy does not permit me to turn a blind eye to the reality that childcare services for a child in Malaysia does not cost the average Malaysians RM4,500.00 a month. I take judicial notice that RM4,500.00 a month is at the higher end of household income for 40% of the citizens of Malaysia, classified as the “B40” group. [31] In fact, RM4,500.00 a month is closer to the threshold to be classified in the “M40” group in Malaysia. Here, we have a Rohingya refugee, who was residing here at the benevolence of the Government of Malaysia, seeking more than RM4,500.00 per month for a period of 11 years, purportedly to pay for the “cost of childcare services” until his daughter – who is normal and healthy – reaches the age of 16. The Plaintiff had moved to New Zealand on his own volition, where according to him, it is necessary to pay for childcare services till her daughter is 16 years of age. With respect, this claim is too remote. His claim ought to be considered on the assumption that he ought to be working to support his daughter – as millions of fathers in Malaysia do. [32] The following evidence adduced during the trial convinced me that the Plaintiff’s claim for RM4,502.68 per month for 11 years as “cost of childcare services” was unjustifiable and would result in unjust enrichment to him at the expense of the Government of Malaysia, if it is to be allowed. [33] First, the Plaintiff’s own evidence showed that he was paying only RM400.00 a month to an Indonesian woman who was taking of his daughter 24 hours a day before he moved to New Zealand. The following excerpt from the Notes of Evidence confirmed the amount paid was RM400.00 per month. [34] There is also in evidence that whilst in Malaysia, his daughter was staying with Kamaliah’s friend, one Majidah, all the time, “24 hours” a day after birth and discharge from hospital until the Plaintiff moved to New Zealand. Majidah was the late Kamaliah’s friend, whom the Plaintiff paid only RM400.00 per month. This fact is evident from the Plaintiff’s answer to a question posed by this Court to seek clarification, as follows: [35] By reason of the facts discussed above, I am of the view that an award of RM700.00 per month, from the time of his daughter’s birth in April 2019 until she reaches the age of 16, would be fair and adequate compensation to cover the Plaintiff’s “loss of support” under S.7 of the Civil Law Act 1956 as his cost of caring for his daughter in the absence of his wife. RM700.00 x 12 months x 16 years = RM134,400.00. I bear in mind that the “loss of support” is for the Plaintiff’s loss, not for the daughter as a dependant or for the Estate of Kamaliah. [36] On bereavement, both learned counsel submitted that a sum of RM10,000.00 as damages is provided for statutorily in Section 7(3A) of the Civil Law Act 1956. It is indeed so. Thus, I decided to award the Plaintiff the exact sum of RM10,000.00 for bereavement. [37] Upon considering the evidence and the authorities, this Court decided that the Plaintiff’s claim for RM140,799-36 as the “loss of contribution” from the late Kamaliah ought to be rejected as there was absolutely no evidence of the deceased being employed and having any income. Further, Hospital Ampang had recorded her occupation as “SRT”. “SRT” is an abbreviation for “SuriRumahTangga”, meaning that she declared herself as a housewife in a form that she filled. This is not surprising in the circumstances. What is more pertinent is the complete absence of any evidence to prove the “loss of contribution”. [38] With respect, all the authorities cited by learned counsel for the Plaintiff on the point of evidence to prove income are on significantly different facts, clearly distinguishable from the present case before this Court. Before I move on to discuss Latif Bin Che Ngah & Anor v Maimunah Bt Zakaria [2002] 4 MJ 266, it was a judgment of the High Court – not of the Court of Appeal as erroneously submitted by learned counsel for the Plaintiff. I am regarding this as an innocent error (as could be seen below) on the part of the Plaintiff’s counsel, and not as an attempt to cite it as an authority that is binding on this Court. [39] The facts in Latif Bin Che Ngah (supra), are obviously different from the present case. As narrated in the judgment of the learned judge the plaintiff was able to prove that her late husband was working in Singapore as a plasterer. A plasterer is a skilled worker who performs the task of plastering wet cement on the walls of newly constructed buildings. Since the couple was able to support 6 children, the learned High Court judge held that the trial judge had not erred in finding that the deceased was indeed working in Singapore and had a monthly income of RM2,000.00 to RM2,300.00. The following passage from the judgment of Nik Hashim J (as he then was) distinguishes the facts of Latif Bin Che Ngah (supra) from the present case: “Thus, from the evidence, it is manifestly clear that the deceased was working and earning a living as a plasterer in Singapore for five years before the accident. S$35-40 at 1997 rates would have translated into RM80-92 per day at an exchange rate of RM2.30 to S$1. Assuming the deceased worked only 25 days per month, excluding working overtime, the appellants’ evidence disclosed a monthly income of RM2,000 to RM2,300, out of which the learned judge awarded a sum of RM1,500 as loss of support to the respondent and six children. In this regard, I do not think the learned judge erred in his award.” [40] Pantai Medical Centre Sdn Bhd v Fareed Reezal bin Arund (suing through his wife and litigation representative Wan Zafura bt Wan Kassim) [2022] 4 MLJ 529 is another authority cited by learned counsel for the Plaintiff. In this case, there was evidence to prove that the respondent/plaintiff owns 92% of the company in which he was working for. It was also proven that profits of his company were over RM1.7million a year – which translates to over RM120,000.00 per month. Thus, the Court of Appeal found no difficulty in finding that a sum of RM30,000.00 per month awarded as “loss of earnings” was justified. The following passages from the judgment of the Court of Appeal are relevant: “[45] The company’s accounts ended March 2016 in encl 38/218 at p 221 showed the plaintiff held 92% shareholding. The question is whether this per se entitles him to claim 92% of the profits in the company of RM1,772,802.54 which calculated to RM1,531,595.34 or a monthly sum of RM127,635.95 coupled with the EPF statements. [50] We find that although there were no documents to prove a monthly salary of RM15,500 and allowances, the fact that he was an executive director in Innovative was not disputed. If that be the case, he must surely have been earning a certain amount of salary to support and sustain a family and maintain a station in life as befits an executive director. [51] We find the sum of RM30,000 per month as loss of earnings awarded by the HCJ to be appropriate as a nominal sum under the circumstances.” [41] Having considered the evidence and the authorities, I had to dismiss the Plaintiff’s claim for “loss of contribution” from the late Kamaliah as there was absolutely no evidence of the deceased being employed or having any regular income to justify even a fraction of the sum of RM140,799-36 claimed by the Plaintiff. [42] Next item to be discussed is the Plaintiff’s claim for RM198,000.00 being “the value of care” for 11 years at the rate of RM1,500.00 per month. I am aware that this Court has the power to make an award for the “value of care provided by a family member”, and indeed such an award has been made in cases decided by the courts in Malaysia, following the UK case of Totham v King’s College Hospital NHS Foundation Trust [2015] EWHC 97 (QB). However, I have noted that in cases where an award for “value of care provided by a family member” has been made in Malaysia, it was usually a situation of the plaintiff having suffered serious injuries, usually brain injuries that left the person a paraplegic or quadriplegic, that cause him or her to require several hours of special care daily. One example of such a case was Pantai Medical Centre Sdn Bhd (supra) where it is necessary to spend an average of three hours a day caring for the ‘vegetative’ patient, touching, talking and checking to ensure that his well-being is being taken care of, such as ensuring that feeding, medication and injection are given on time. Those facts could be seen from the passages of that judgment set out below: “[2] The plaintiff was 44 years old when he suffered serious brain injury in D1’s hospital on 19 May 2015. This resulted in him being in a persistent vegetative state (PVS).” [75] In her Q&A 49 SP2 described her involvement in the plaintiff’s care in ensuring that his wellbeing is taken (care) of such as feeding and medication and injection is on time and in Q&A 50 she spends on an average three hours a day caring for him which is more on touching, talking and check…”. [43] The Plaintiff’s daughter in this present case was, thankfully, born normal. She does not require any nursing care or any special attention over and above that is required for a normal child of her age. Thus, based on my analysis of the law as stated above, I am of the view that it would amount to over-compensating and unjustly enriching the Plaintiff in New Zealand if he is to be awarded any compensation for “value of care provided by a family member”. [44] Further, as the Plaintiff’s claim under S.7 of the Civil Law Act 1956 is for “loss of support” that he allegedly suffers, and not for any claim by his daughter or by the estate of Kamaliah under S.8 of the said Act, I am of the view that this Court is constrained to dismiss the Plaintiff’s claim for “value of care” provided by him as a father. [45] Even though there was no receipt adduced as evidence for each item, I decided to allow most of the items claimed as Special Damages, including RM5,048.50 for hospital expenses and medication fees, costs of burial of RM1,440.00, transport expenses of RM500.00 to visit the late Kamaliah in hospital, RM3,312.00 claimed as costs of formula milk powder for 24 months, RM15,200.00 claimed as the sum paid to Majidah, at RM400.00 per month from 1-5-2019 to 31-7-2022 when the Plaintiff and his daughter moved to New Zealand, i.e. for 38 months, which added up to Special Damages of RM25,000.50 being allowed by this Court. [46] The Plaintiff’s claim for RM10,000.00 being “legal fees” for pre-action discovery was not allowed because it was admitted that there was no such payment made by the Plaintiff. There was no evidence adduced as to the Plaintiff’s agreement with his counsel for legal fees. [47] As pointed out in para [34] above, the Plaintiff admitted that his daughter was staying with Kamaliah’s friend, one Majidah, all the time, 24 hours a day during that period. This Court has awarded him RM15,200.00 as the sum paid to Majidah, at RM400.00 per month from 1st May 2019 to 31st July 2022 under his claim for Special Damages. [48] Based on the facts stated in para [47] above and the same reasons as explained in para [42], [43] and [44] above, I find that the Plaintiff’s similar claim for RM95,000.00 being the “value of care and services provided by him” to his daughter at the rate of RM2,500 per month, for 38 months from May 2019 until July 2022” is also unjustified. [49] It was also admitted by the Plaintiff when giving evidence, that the Government of New Zealand paid for, and is still paying for his daughter to attend a childcare centre in Auckland. The Plaintiff was given free English language tuition and other benefits. [50] As for the Plaintiff’s attempt to claim RM31,500.00 as “Pre-trial Damages” being “the value of care and services provided by him” to his daughter from August 2022 till May 2024, I noted that he appeared to be unaware that he was making such a claim. The following excerpts from the Notes of Evidence, whilst under cross-examination by the learned FC, are self-explanatory: [51] I hold that the reasons stated in para [42], [43] and [44] above, for dismissing the Plaintiff’s claim for future “value of care” that he will be providing his daughter, are also applicable here. Further, the fact that he was unaware of such a claim for the period of August 2022 till May 2024 being mounted on his behalf, and more importantly, having no evidence to support such a claim, convinced me that his claim for RM31,500.00 as “Pre-trial Damages” being “the value of care and services” provided to his daughter from August 2022 till May 2024, ought to be dismissed. [52] There would clearly be duplicity of award and unjust enrichment if the Plaintiff’s claim of RM324,500.00 (RM198,000.00 + RM95,000.00 + RM31,500.00) as the “value of care” provided by a father to his normal and healthy daughter, is to be allowed by this Court. Counsel for the Plaintiff: Karthi Kanthabalan (Ahimsya Karunananthan with him) SOLICITORS FOR THE PLAINTIFF: MESSRS P S RANJAN & CO Advocates & Solicitors 17th Floor Wisma Lee Rubber, Jalan Melaka, City Centre, 50100 Kuala Lumpur Counsel for the Defendant: Pn. Fariza Amira Binti Azman (FC) SOLICITORS FOR THE DEFENDANT: JABATAN PEGUAM NEGARA MALAYSIA (Attorney-General’s Chambers, Malaysia) Bahagian Guaman, (Civil Division) No 45, Persiaran Perdana, Presint 4, 62100 PUTRAJAYA

Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) [2018] 3 MLJ 184.

Sambu Pernas Construction & Anor v Pitchakkaran [1982] 1 MLJ

269.

Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292.

Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1.

Latif Bin Che Ngah & Anor v Maimunah Bt Zakaria [2002] 4 MJ 266.

Pantai Medical Centre Sdn Bhd v Fareed Reezal bin Arund (suing through his wife and litigation representative Wan Zafura bt Wan Kassim) [2022] 4 MLJ 529.

Totham v King’s College Hospital NHS Foundation Trust [2015] EWHC 97 (QB).

Section 7 Civil Law Act 1956.

Section 8 Civil Law Act 1956.