Mohd Fahmi bin Mohd Hata v Bandar Baru Klang Specialist Hospital Sdn Bhd (BL-22NCvC-9-04/2021)

Bandar Baru Klang Specialist Hospital Sdn. Bhd. (Company No: 1669930 - W)

Dr. Syed Ahmad Faisal bin Syed Kamaruddin 3. Dr. Oommen George A/L T.O. George … Defendants JUDGMENT Introduction [1] The trial in this case proceeded only on the issue of damages to be awarded to the plaintiff since the parties reached an amicable settlement pertaining to liability which was recorded as below: i) 65% on the 2nd defendant ii) 35% on the 3rd defendant. 30/12/2024 10:42:50 BL-22NCvC-9-04/2021 Kand. 111 [2] As regards the 1st defendant, an ex gratia payment was agreed to be paid to the plaintiff to the sum of RM 20,000 with Consent Judgment being recorded on a without admission of liability basis. Brief facts of the case [3] The plaintiff had a motorcycle accident on 29 April 2015 on his way back from work whereby his motorcycle skidded resulting in his right arm hitting a metal rail along the road before he fell into a drain. He was taken to Serdang Hospital, the nearest government hospital where he was diagnosed to have sustained an open fracture of his right humerus and fractures of the base of the 3rd and 4th metacarpal bones. He was told that his employer, CIMB Bank Berhad will bear the treatment costs at private hospitals hence he chose to be transferred to KPJ Klang, the place being near his home. [4] The referral letter from Serdang Hospital to KPJ Klang mentioned that the plaintiff did not have a wrist drop. On arrival at KPJ Klang the 2nd defendant diagnosed Fahmi to have sustained an open fracture of his right humerus Gustilo Type 3B and fracture of 2 metacarpal bones in his right hand. It is the plaintiff’s case that the open fractures required early (within 24 hours) surgical intervention. [5] The 2nd defendant performed the surgery the next day, being 44 hours after the surgery. The wound became infected and 3 wound debridement surgeries were undertaken by the 2nd defendant on the 3rd, 5th and 8th May of 2015. The soft tissue coverage (flap surgery) for the grade 3B open fracture was done by the 3rd defendant on 22nd May 2015, though there was infection whereas the plaintiff’s position is that it should have been done within 72 hours of the injury. About 2 months after the flap surgery it was noted by the 2nd defendant that the plaintiff suffers from a right wrist drop. [6] Some 5 months after the injury there was still no union of the humeral bone with infection still being present. The 2nd defendant decided to undertake bone grafting surgery but it failed with the non-union and infection still being present. 3 months after that, a bone reconstructive surgery was undertaken but this also failed. The plaintiff then had further 11 wound debridement surgeries because of the unresolved infection. 17 months later the 2nd defendant performed another surgery to remove the screws and the dead part of the bone at the humerus but the infection was not eradicated. [7] Further wound debridement surgeries were performed on the plaintiff before his last out patient follow up with the 2nd defendant with the plaintiff on the last follow up date suffering from iatrogenic radial nerve palsy. [8] The plaintiff consulted Dr Suntharalingam at Pantai Hospital Cheras just before his last outpatient consultation with the 2nd defendant, who then performed a radial nerve exploration and wound debridement surgery in March 2017 attempting to reverse the nerve palsy but to no avail. The same doctor then removed the infective bone and bone graft using antibiotic cement and this managed to successfully control the infection but an attempt to lengthen the femoral bone failed to be achieved. Plaintiff’s current condition [9] He has a flail arm and a severely disabled right hand which is very much functionless. This being due to the fact that a length of 13.5 cm of the middle part of his right arm has been surgically removed. A permanent radial nerve palsy is suffered by the plaintiff with the wrist being in a persistent drop position. [10] The plaintiff however can twist the throttle of his motorbike by flexing his right thumb and fingers. He needs to lift his right arm and place his right hand on the throttle, with this being achieved by using his left hand. There is no power or manual dexterity in his right upper limb, he has sensation on his right upper limb but no control over it. [11] Due to his academic qualifications, the only job possible for him is as a clerk but then he is unable to type, carry files or other tasks requiring the use of both hands. Damages awarded (on 100% liability basis) [12] The assessment of damages proceeded with the testimony of: Plaintiff’s case: i) The plaintiff himself as PW1 ii) Dr Benjamin George as PW2 iii) Dr Mohamed Noortheen as PW3 2nd defendant’s case: i) Dato Dr K. S. Sivananthan as DW1 [13] This Court then made these awards: General damages Pain and suffering from the injuries and loss of amenities of life - RM200,000. Aggravated damages i) Against the 2nd defendant - RM 50,000 ii) Against the 3rd defendant - RM 80,000 Special damages Hospital and medical expenses The sum of RM 511,066.86 as claimed by the plaintiff is awarded. Travel and other incidental expenses An award of RM 10,000 was granted. Costs – RM 70,000 Appeals pursued [14] Based on the Notice of Appeal filed by the plaintiff, these items are being appealed against: a) the general damages of RM 200,000; b) the 2 awards for aggravated damages; c) there being no awards for future loss for: i) tendon transfer ii) equipments iii) therapies iv) care and services of the family members v) earning capacity d) non-award for medical records e) costs of RM 70,000 [15] The appeal of the 2nd defendant is against all the awards made to the plaintiff. [16] Whilst the 3rd defendant feeling aggrieved by the decision of the High Court now appeals against: a) general damages of RM 200,000 b) aggravated damages of RM 80,000 c) Hospital and medical expenses of RM 511,066.86 d) travel and incidental expenses – RM 10,000. Governing principles [17] It is the position of the law here that the only remedy that the Court can order is damages and it is to be in monetary terms. As stated in Nurul Husna binti Muhammad Hafiz & Anor v the Government of Malaysia & Ors [2015] 1 CLJ 825: “I will now move on the issues of the future needs of Nurul Husna. The award of future damages or cost of future care in Malaysia is done on a once-and-for-all assessment basis, unlike in England where damages may be assessed periodically, following judgment on liability. Thus, in Malaysia the victim cannot return to Court in the future to claim more damages because his or her injuries have worsened, or if unexpectedly the victim has more needs and the original award had proved inadequate. “Thus, in making this once and for all assessment, courts are invariably guided by the opinions of experts and in this regard the court must see that the expert opinion is reasonable, responsible and respectable; and that it stands to a logical analysis. (see: Bolitho v City Hackney Health Authority [1997] 4 All ER 771). The future exigencies of the plaintiff’s needs are best determined by educated and well-informed surmises and postulations by experts in that field. The Courts have had regard to well established principles in trying to make a reasoned and well-informed award of future damages. The standard of proof regarding future damages is not on the balance of probabilities but the possibility of danger of some adverse future developments. See Hawkins v New Mendip Engineering Ltd [1996] 3 All ER 228 [RBoA]; and in Schrump Et Al v Koot Et Al Lexsee [1977] 18 OR (2d) 337). [28] …It is trite that in a negligence claim, the court can award damages only in monetary terms. The Court cannot make an award for any specific relief against the defendants in a tortious claim for damages., for example, to order the tortfeasor to undertake repairs, provide medical treatment, supply goods and services.” Deliberations of the Court [18] This Court shall now deal with the issues in the appeals pursued by the respective parties in this suit: Pain and suffering and loss of amenities of life [19] The plaintiff met with the accident aged 30 with him now being 38. The infection finally settled in May 2017 with the resulting effect of the humerus fracture not united and there being 13.5 cm of humerul bone missing. The iatrogenic injury to the radial nerve has caused a wrist drop. [20] The plaintiff submits the sum of RM 475,000 as damages for this injury and alternatively RM 525,000 if the cost of tendon transfer is not allowed. The 2nd defendant submits the global sum of RM 105,000 under this heading with the 3rd defendant submitting the sum of RM 65,000. This Court awards RM 200,000 to the plaintiff with the award being appealed against by the plaintiff who feels aggrieved by the decision and feels that the award is inadequate whilst the 2nd and 3rd defendants are of the opinion that the award is excessive. [21] The plaintiff stresses on the right arm being useless. However, it is observed that he is able to carry out his tasks as a messenger which involves the use of his motorcycle which is in its original unmodified condition. The plaintiff does not attend physiotherapy and does not even remember the last occasion that he did so. The plaintiff does not obtain an arm splint from the government hospital, rarely wears an arm sling and does not wear a wrist brace for his wrist drop when he attended his assessment with PW3. [22] He experiences occasional mild pain, very much independent when he attended the assessment with DW1, still smokes cigarettes and able to get married and have children after the accident. This leads the Court to the conclusion that the arm is not useless. His motorcycle remained unmodified and the plaintiff could still accelerate when riding his bike. His task as a messenger has not been impaired with him obtaining salary increments in the said job. He was never demoted or given a lower position and the benefits that he enjoys from his employer has not been affected. He still works daily from 8.45 am to 5.45 pm as the sole breadwinner in the family since his wife is a homemaker. [23] His sex life cannot be deemed to have been affected as he was unmarried at the time of the accident and the marriage still produced 3 children thereafter. [24] As regards the authorities used as comparables by the plaintiff, the authority of Aznor Hassan bin Zakariah v Dr Khairul Nizam bin Rozali & Anor (Kuala Lumpur High Court Civil Suit No: WA-22NCVC-124- 03/2018) cannot be utilised by this Court as the full judgment has not been put forth to the Court to enable this Court to discern the full facts of the case. [25] The cases of Noorasmawati bt Abu Othman v Kerajaan Malaysia & Ors [2021] MLJU 2493 and Hasniyati Bt Hassan & Anor v Kerajaan Malaysia [2022] 10 MLJ 469 involves limb amputation which is not sustained by the plaintiff herein. [26] The case of Devarani A/P Vijayan v Dr Daniel Foo Yong Chiang & Ors (Kuala Lumpur High Court Civil Suit No: WA-22 NCVC-116-03/2015) relates to the situation whereby the plaintiff therein was 21 years old when he acquired MRSA infection from the hospital, had only 1 kidney, sepsis, severe damage to the liver and sole kidney, an exposed bone and further given non-steroidal inflammatory medication which had potent toxic effects to the kidney. [27] The plaintiff therein also is not able to write, continue his studies in school, required pain killers for the rest of his life, mental distress, unable to get married, underwent 8 dialysis treatments and all these led to the award of RM 300,000. [28] Based on all these considerations, this Court has formed the opinion that though the plaintiff herein sustained serious injuries yet they are not as severe as the plaintiff is attempting to make out. Thus, this Court decides that the sum of RM 200,000 is the appropriate award under this heading of the claim. Tendon transfer procedure [29] This Court did not grant an award for this claim hence resulting in the plaintiff making this issue as part of his appeal. [30] This Court has considered the experts being PW3 and DW1, from whose evidence it can be gathered that such procedure is not necessary. PW3 being the plaintiff’s expert confirmed that the tendon transfer is not warranted to improve the plaintiff’s condition since it is very much optional given that the plaintiff may opt for a splint instead. [31] DW1 also confirmed that the tendon transfer procedure is not required to improve the plaintiff’s prognosis. Hence to award under this category would see the Court venturing into the realm of being speculative. DW1 further stated that since the plaintiff has poor muscles in his forearm thus the tendon transfer if performed would be unsuccessful. [32] PW3 confirmed during cross examination that he is agreeable with DW1 that a reconstruction operation to achieve bone union in the right humerus will pose further morbidity and a successful result cannot be expected. [33] This Court finds the evidence of DW1 to be more reliable herein as he had conducted an imaging during assessment which PW3 did not do. This imaging procedure has confirmed that there was a marked weakness and the tendon transfer procedure would then not be suitable. [34] In order to undergo the tendon transfer procedure, the plaintiff would have to undergo intense therapy as preparation. The plaintiff’s own evidence discloses he does not attend such sessions and couldn’t recall the last time he did so. Hence the plaintiff does not have the profile of someone who would be fit to pursue this procedure. [35] Given the fact that the plaintiff continues to use his motorbike and able to accelerate using his right hand, this Court is of the view that this claim is not warranted and would not be necessary. Aggravated damages [36] The plaintiff claims aggravated damages of RM 300,000 against the 2nd defendant and RM 400,000 against the 3rd defendant. As part of the plaintiff’s submission it is averred that the 3rd defendant had engaged Dr Benjamin George as his expert witness with the 3rd defendant not giving evidence and there exists what amounts to a “collusion” between the 2 doctors as the 3rd defendant had given evidence for Dr Benjamin George in another medical negligence case: Dayalan A/L Sathamutty v Gleneagles Hospital Sdn Bhd & 2 Ors (Kuala Lumpur Civil Suit No: WA-22NCVC- 128-03/2021). It is the plaintiff’s position that what the 2 doctors are doing is akin to “scratching each other’s back” as they would be defending each other’s position in this case and Dayalan’s case. [37] The plaintiff asks for the substantial damages under this heading on the basis of delayed admission of guilt on the part of the 2nd and 3rd defendants and for attempting to shift the blame to the plaintiff himself by stating that the plaintiff has a low threshold to pain. [38] These issues are of consideration under this topic: a) Issue of “collusion” [39] This Court finds that the plaintiff has failed to produce any evidence to confirm that there are elements of bias and/or collusion pertaining to the conduct of the 3rd defendant and Dr Benjamin George. Dr Benjamin George confirmed under cross examination that: a) he only knows the 3rd defendant in a professional capacity; b) there are 2 associations of plastic surgeons in Malaysia and he and the 3rd defendant belong in different associations; c) they do not walk in the same circle at all; d) they belong in different Christian communities and go to different churches; e) Dr Benjamin George did not choose the 3rd defendant to give evidence in his legal suit as the choice was made by his lawyers; f) the 3rd defendant’s lawyers had approached him to provide expert report in this matter; g) he based his expert report completely on medical records provided to him; [40] Furthermore, in Bundle I at page 2 the 3rd defendant’s lawyers had informed the plaintiff’s lawyers that Dr Benjamin George has been contacted without informing the 3rd defendant and the 3rd defendant was not aware of Dr Benjamin George’s appointment until after the fact. [41] It is further observed that the 2 doctors belong in the same limited fraternity of plastic reconstructive surgeons hence their paths will cross along the way but this alone cannot be proof of bias or collusion on their parts. It is presumptuous to make such a finding based on the mere fact that they have given evidence in court in each other’s cases. This Court is satisfied that nothing sinister exists in the relationship between the 2 doctors. b) Damages [42] The law in the United Kingdom which has been adopted here in Malaysia for the plaintiff to be entitled to aggravated damages is a consideration of whether there is: a) exceptional or contumelious motive; b) when committing the wrong (negligence) or in certain circumstances subsequent to the wrong (negligence); c) which caused the plaintiff some form of mental distress. [43] As decided in Clinton v Chief Constable [1999] NICA 5 it was held as follows: The Law Commission at para [2.4] laid down two basic preconditions for an award of aggravated damages:

exceptional or contumelious conduct or motive on the part of a defendant in committing the wrong, or, in certain circumstances, subsequent to the wrong; and

mental distress sustained by the plaintiff as a result. [44] The decision in Ahmad Thaqif Amzar bin Ahmad Huzairi (claiming through his mother and legal representative, Majdah bt Mohd Yusof) v Kuala Terengganu Specialist Hospital Sdn Bhd & Ors [2021] 9 MLJ 10 involve the suppression of medical records as grounds for awarding aggravated damages whilst in Li Siu Lun v Looi Kok Poh and another [2015] SGHC 149; [2015] 4 SLR 667, the Court found the conduct of the hospital in tampering with the Consent Form and concealing the said tampering from the plaintiff was exceptional conduct warranting an award for aggravated damages. [45] This Court observes that to warrant a large sum of aggravated damages to be awarded then there must be an active conduct on the defendant’s part which is extreme and/or despicable. The facts relied upon to support a claim for aggravated damages should be specifically pleaded as quoted in Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] SGCA 111. [46] In the case herein the defendants have at the outset of the case admitted liability on their parts and this Court, as such rejects the argument that the defendants had delayed in admitting guilt. As regards the argument of the defendants shifting the blame to the plaintiff for his low tolerance of pain, this is an opinion of the expert called to give evidence and should not willy nilly be defined as such by the plaintiff. [47] This Court finds no contumelious or sinister acts have been done by the 2nd and 3rd defendants as in the cases above cited but aggravated damages should still be awarded for the sheer negligence in their actions which have caused serious repercussions to the plaintiff hence the awards of RM 50,000 against the 2nd defendant and RM 80,000 against the 3rd defendant. Cost of therapies and equipment [48] This Court did not grant any awards under these 2 categories as they are speculative and would be on a demand basis and/or on need basis. PW3 confirmed during cross examination that the forms of therapy would depend on the outcome of surgery and recovery that the plaintiff has to undergo. Since this Court is of the opinion that the tendon transfer is not required thus the associated therapies and equipment would not come into the equation. [49] PW3 gave this evidence: i. the list of equipment mentioned in his report is on a need basis; ii. not all equipment are required and would be prescribed by a physio; iii. the resting splint is on a need basis; iv. long term rehabilitation is not prescribed but on a need basis; v. it is the plaintiff’s choice whether to attend the therapies; vi. the occupational therapy is on a demand basis. [50] The plaintiff’s own evidence showcases that he has no interest in attending such sessions and has not been to the government hospital for his splint. This suggests that therapy or splint is not required or sought by the plaintiff to improve his condition. [51] DW1 during cross examination stated that due to the severe malunion fracture of the humerus and abnormal mobility in the humerus, physiotherapy would not be helpful or useful. [52] 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 it was held: “…Speculative and fanciful possibilities unsupported by expert or other cogent evidence can be removed from the consideration of the trier of fact and should be ignored, whereas substantial possibilities based on such expert or cogent evidence must be considered in the assessment of damages for personal injuries in civil litigation. This principle applies regardless of the percentage of in a proper possibility, as long as it is a substantial one, and regardless of whether the possibility is favourable or unfavourable. Thus, future contingencies which are less probable are regarded as factors to be considered, provided they are shown to be substantial and not speculative: they may tend to increase or reduce the award in a proper case…” [53] As the claim under these 2 headings would be only arise if the plaintiff desires it and not mandatory in nature with the plaintiff not having the attitude of going through with such sessions, this Court is of the considered opinion that the claim does not warrant for awards to be granted. Care and services of family members [54] The Court did not grant any award under this claim with the plaintiff appealing against the said decision. The 3rd defendant meanwhile, in his Notice of Appeal states that an appeal is pursued against the award of RM 10,000 under this heading which is clearly misconceived as no award was made under this claim by the plaintiff. [55] The reason for the Court not granting any award is due to there being no evidence presented during trial of the plaintiff being cared for by his family members. This differs from the decision in Yusnita bt Johari (suing through her husband and litigation representative Khairil Faiz bin Rahamat) v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629, in which an award of RM 32,150 was made based on the evidence of the plaintiff’s sister in law, mother in law, mother and elder sister to provide proof for this claim. In the case herein no family members were called as witnesses as per the case of Yusnita bt Johari. [56] Based on the evidence adduced during the assessment for damages, it can be concluded that the plaintiff is very much independent and does not require assistance from family members as he is still able to ride his motorcycle (which is not modified to suit his need), resume his previous job as a messenger, does not attend physiotherapy and does not even obtain a splint from the government hospital. [57] The plaintiff’s own expert confirmed that the plaintiff would not require assistance from a full time carer for the injuries sustained and the same specialist did not state that such assistance has been given by the family members of the plaintiff. Loss of earning capacity [58] This Court did not order any award under this claim resulting in the appeal by the plaintiff. [59] The plaintiff avers that besides his work as a messenger for CIMB, he was also earning part time at a road side stall but this averment was never corroborated during trial. If at all he was working part-time then surely a co-worker or the owner of the stall could have been called to vouch for this averment but none was forthcoming. [60] In Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] CLJ (Rep) 419 it was decided: “…the proper test to be applied is whether some time in the future, due to the effect of the injuries sustained by him, the plaintiff will face substantial risk of either losing his job or getting a less paid employment. It does not matter whether the plaintiff was in employment or not at the time of the trial so long as Court is satisfied from evidence that there is a real or substantial risk that his earning capacity will be affected in the future… [61] The plaintiff thus has the burden to prove that there is a real/substantial risk that he may lose his job and that his earning capacity would be affected in the future. This Court finds that no such evidence was put forth to the Court during the assessment of damages to show he faces a real/substantial risk of losing his job as a result of the mistreatment and negligent care rendered by the defendants. [62] The plaintiff has returned to work with CIMB and has the same job as pre-accident, he still receives the same medical benefits and no show-cause letter has been received indicating his employment has been affected. The plaintiff has not been demoted or given a lower position. In fact, he confirmed to have received salary increments with him now getting a pay of RM 3,700 per month, an upgrade on his salary before the accident. [63] As regards the injuries, the plaintiff rarely wears an arm splint, only experiences occasional pain, able to use the motorcycle as a messenger without having it modified, does not attend physio sessions that he could not even recall his last session and was not wearing a wrist brace when he saw PW3 for assessment of his injury. [64] His immediate officer in charge was not called to give evidence reflecting that his career was at risk. Thus, there is no evidence of any loss of the plaintiff’s capacity to earn, no evidence of any residual risk that the plaintiff might lose his job or being demoted or that his injuries are so severe that his earning capacity has been or will be affected. [65] In Mohd Sabri bin Mohammad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443 it was decided: “Having considered the arguments of both counsels, I am in agreement with learned counsel for the 1st defendant, in that there is no compelling evidence showing that the plaintiff is at any residual risk of being thrown out of work altogether at some future date. In fact, the evidence adduced showed that the plaintiff’s employer had been very accommodating and had allowed the plaintiff to carry on his employment without any demotion. There is no evidence that the plaintiff is in any danger of losing his earning capacity.” [66] Based on all those considerations, this Court has decided to not give any award for loss of earning capacity to the plaintiff. Cost of obtaining pre-action discovery of medical records [67] The plaintiff claims RM 10,000 under this heading which the Court dismisses. It is observed that the application for discovery was filed against the 1st defendant and the defendant doctors have no authority on their own volition to release the medical records. Only the 1st defendant has such power to release with the application itself being filed against them. [68] It is further observed that the plaintiff had entered into a Consent Judgment for the said application against the 1st defendant, with the application not being contested and costs being waived. Hence this Court decides not to grant this heading of the plaintiff’s claim. Hospital and medical expenses [69] The parties have agreed that the total sum of hospital and medical expenses incurred at both KPJ Klang and Pantai Hospital Cheras is the sum of RM 511,066.86. There is no dispute that the bulk of this sum was paid by the employer of the plaintiff, being CIMB. The defendants in essence object to the plaintiff being entitled to this claim due to the fact that CIMB has settled this sum and the plaintiff himself never had to part with his own money to effect payment of this substantial sum. [70] This Court places reliance on the Federal court decision in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 in arriving at its decision, with the decision stating that the hospital and medical expenses incurred by the victim of the tort but was paid by others (the insurer, employer or other party) cannot be deducted from the damages liable to be paid by the tortfeasor. [71] The decision touched on the effect of section 28A of the Civil Law Act 1956 which states:

(a) any sum paid or payable in respect of the personal injury under any contract of assurance or insurance, whether made before or after the coming into force of this act. [72] It was held therein as below in interpreting section 28A of the Civil Law Act 1956: “[151] The purpose of the section, in line with its plain and natural meaning, was to exclude ‘any sum paid or payable in respect of the personal injury under any contract of assurance or insurance’ from being taken into account in the assessment of damages for personal injury or resulting in death. On both literal and purposeful interpretations, we are of the view that s 28A(1)(a) applies in this case. Since the sum paid by the insurer for the plaintiff’s medical expenses is a sum paid in respect of personal injury under a contract of insurance, it cannot be taken into account in assessing damages awarded to the plaintiff. [73] Based on this Federal Court decision which is obviously binding on this Court, the full sum of RM 511,066.86 should be and is awarded to the plaintiff notwithstanding the fact that it was paid by CIMB pursuant to a contract of insurance through his employment and for the plaintiff to be entitled to the claim herein does not have the effect of the plaintiff profiting from double compensation. Travel and incidental expenses [74] The 2nd and 3rd defendants are appealing against the decision of the Court to award RM 10,000 to the plaintiff for this claim for special damages. [75] The plaintiff submits the sum of RM 20,000 to cover for the period between the initial treatment at KPJ Klang until the end of treatment at Pantai Hospital Cheras and then the continuing follow-up consultations thereafter at Pantai Hospital Cheras, HKL and University of Malaya Specialist Centre as well as rehabilitation and therapies. [76] However, this Court observes that during cross examination the plaintiff had confirmed that the travelling expenses incurred were for visits from his home in Shah Alam to KPJ Klang only. The distance between the 2 places would be approximately 10 km. [77] He was unmarried at the time and no evidence have been put forth that his family members had attended KPJ Klang together with the plaintiff during his visits. Furthermore, the plaintiff failed to justify his travel expenditure for rehabilitation and therapies as he confirmed in his evidence that he does not attend physiotherapy sessions and could not even remember the last time that he did so. [78] Since this comes under special damages claim then strict proof is required. This Court is convinced that there has been expenditure for travel and incidental expenses yet this Court views that RM 10,000 is sufficient and appropriate to be awarded under this claim. Costs [79] Costs for the action is very much a discretion of the Court based upon considerations of factors, amongst others being, the length of trial, the complexity of the case/multiplicity of documents involved and novel points involved. This case did not go through the full length of trial as the liability issue was agreed upon by the parties at the outset of the case. [80] As such the case proceeded for hearing only on the assessment of damages with 3 specialist doctors giving evidence besides the plaintiff himself and the hearing went for a duration of 3 days (albeit not full days of sitting for each trial date). [81] It is the argument of the plaintiff that the case being a medical negligence claim involves complex issues with the case being handled by Mr. Karthi Kanthabalan, a specialist counsel in this field of work who has handled various medical negligence claims in the immediate past. [82] With all due respect to this argument by the plaintiff, this very argument has actually worked against the plaintiff as the learned counsel being vastly experienced and of such high caliber would be completely familiar with the topic and complexity involved and thus would not find the subject at all daunting. [83] This Court also finds that the case does not involve any real complex or novel points that would require extensive additional research in the area of medical negligence litigation, furthermore the case proceeded for trial only on the issue of quantum by way of assessment of damages. Hence this Court feels that the award of RM 70,000 as costs is befitting the circumstances of the case. Dated: 20th December 2024. AZMI BIN ABDULLAH High Court Judge High Court of Malaya, Klang COUNSELS Counsel for the Plaintiff: Karthi Kanthabalan/Abdul Azeem Ambalam M/s P.S Ranjan & Co Advocates and Solicitors 17th Floor, Wisma Lee Rubber, No. 1, Jalan Melaka, 50100 Kuala Lumpur. Counsel for the 2nd Defendant: Datin Anit Kaur Randhawa/Joanna Chiew M/s Asbir, Hira Singh & Co Advocates & Solicitors Suite 25-15-A, 25th Floor, Tower A, Menara UOA Bangsar, 5 Jalan Bangsar Utama 1 59000 Kuala Lumpur. Counsel for the 3rd Defendant: Harikannan A/L Ragavan M/s Jayadeep Hari & Jamil, Advocates & Solicitors Suite 2.03, 2nd Floor, Block A, No. 45, Medan Setia Satu, Plaza Damansara, Bukit Damansara, 50490 Kuala Lumpur.