Muhammad Aliff Ikhmal Bin Jessry v Pengarah Hospital Kota Tinggi Johor Bahru (JA-21NCvC-5-02/2021)

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KERAJAAN MALAYSIA ...DEFENDANTS 30/03/2026 01:49:25 JA-21NCvC-5-02/2021 Kand. 80 GROUNDS OF JUDGMENT Introduction

This is a civil action for damages arising from medical negligence. Liability has been admitted by the Defendants. The sole matter for the court's determination is the quantum of damages to be awarded to the Plaintiff.

The trial began on 23.09.2024 and 17.01.2025 before Justice Nurulhuda Noraini binti Mohd Nor, with PW1 and proceeded before me upon her Ladyship transferred to Kuala Lumpur High Court. I concluded the trial on 11 and 12.12.2025 with PW2 and Defendants witness. In total 3 witnesses testified for the parties as follows –

(a) Plaintiff’s witnesses NAME DESIGNATION PW1 Muhammad Sobedron Bin Jaafar Prosthetist and Orthotist PW2 Muhammad Aliff Ikhmal Bin Jessry Plaintiff

(b) Defendants’ witness NAME DESIGNATION DW1 Dr Saári Bin Mohamad Yatim Rehabilitation Specialist

Parties filed in written submissions and bundle of authorities and relied solely to the submissions. The Court now delivers its decision based to the cause papers, record of proceedings, CRT and parties’ submissions and bundle of authorities. Backgrounds

The Plaintiff, Muhammad Aliff Ikhmal bin Jeffry, was 19 years of age at the material time. He was a national-level cricket athlete, having been selected to represent Malaysia and trained at Sekolah Sukan Bukit Jalil, one of the nation's premier sports schools. The Plaintiff now stands before this court at the age of 26, having lost his right leg above the knee as a direct consequence of the medical negligence of the Defendants.

The Defendants are the Directors of Hospital Kota Tinggi (D1) and Hospital Sultanah Aminah (D3); the treating doctors Dr Muhammad Feroz bin Hassan (D2) and Dr Faisal bin Arshad (D4); the surgeon Dr Gunaseelan a/l Ponnusamy (D5); and the Government of Malaysia (D6). 4 6. On 22 February 2018, the Plaintiff was involved in a motorcycle accident and was brought to the Accident and Emergency Department of Hospital Kota Tinggi (HKT). He presented with severe right leg pain. D2 examined the Plaintiff, ordered an X-ray which showed no fracture, diagnosed soft tissue injury and discharged the Plaintiff with two days' medical leave.

On 24 February 2018, the Plaintiff returned to HKT with worsening pain and swelling. Clinical examination revealed absent dorsalis pedis and posterior tibial pulses, capillary refill time of 3 seconds and cold peripheries, classic signs of acute limb ischaemia. He was referred urgently to Hospital Sultan Ismail, where Doppler ultrasound and CT angiogram confirmed thrombosis of the distal right femoral and popliteal arteries. The Plaintiff was subsequently transferred to Hospital Sultanah Aminah (HSA).

At HSA, the Plaintiff underwent emergency arterial repair with graft, fasciotomy and external fixation. Despite these interventions, gangrene developed and on 7 March 2018, the Plaintiff underwent right above-knee amputation.

A further critical failure was identified at trial. Following the amputation, the Plaintiff was never referred to the Rehabilitation Department at HSA or HSI. The Defendants' own expert, DW1, confirmed under cross-examination that the standard protocol requires immediate inpatient referral to the rehabilitation specialist following above-knee amputation. He acknowledged that in this case, such referral appears to have been overlooked ("mungkin terlepas pandang"). The Plaintiff attended only one follow-up at HSA on 15 August 2018.

As a direct consequence, the Plaintiff, now six years post-amputation, has not fully adapted to a prosthetic limb. He remains unemployed. His national sporting career has ended. At the age of 26, he attributes difficulty in personal relationships to his sense of physical inadequacy. Preliminary Issues

The Defendants raise, in their written submissions, the argument that the entire claim is barred by res judicata and/or estoppel by reason of a Consent Judgment recorded in Sessions Court Kota Tinggi, Case No. : JH-A53KJ-138-11/2018 (the "MSKT suit"), in which the Plaintiff settled his claim against the driver of the vehicle that caused the accident on 28 August 2019 for RM120,000.00 as full and final settlement.

The Defendants contend that because the Plaintiff had pleaded the same injuries, including the above-knee amputation and prosthesis costs in the MSKT suit, the present claim is barred. They rely on Sri Tharan a/l Ganesan v Mohd Shahreen bin Mohd Jaar & Ors [2018] MLJU 857, Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] MLJU 243, Kow Nan Seng v Nagamah & Ors [1982] 1 MLJ 128 and Wee You Kheong v Hasbullah bin Azhar & Ors [2025]

This Court rejects the res judicata argument as a complete bar to this action for the following reasons.

First, and most significantly, the Defendants did not formally plead estoppel or res judicata as a defence in their pleadings, nor did they file any application to strike out the claim during the course of proceedings. The argument is raised for the first time in closing written submissions, after a full trial on quantum has been conducted.

This procedural irregularity is fatal. It is well established that a party who wishes to rely on estoppel must specifically plead the facts giving rise to it. Order 18 Rule 8(1) of the Rules of Court 2012 ("ROC 2012") expressly provides that a party shall in any pleading subsequent to a statement of claim plead specifically any matter which, if not specifically pleaded, might take the opposite party by surprise. The principle that parties are bound by their pleadings applies equally to defences as it does to causes of action. In Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292, the Federal Court held at paragraph [27] that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded and that a decision based on an issue which was not raised by the parties in their pleadings is liable to be set aside. The Defendants, having chosen not to plead res judicata or estoppel in their defence, cannot now raise it for the first time in closing submissions after a full trial on quantum has been conducted. The Plaintiff was not afforded the opportunity to direct his evidence specifically to rebut a plea of estoppel. It would be unjust to give effect to an unpleaded defence at this stage.

Second, and in any event, the argument fails on its merits. The doctrine of res judicata in its narrow sense, namely cause of action estoppel, operates where a cause of action between the same parties has been determined by a final judgment of a court of competent jurisdiction, such that the cause of action merges into the judgment and may not be relitigated (see Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189). Here, none of the essential elements is present. The parties are different, the causes of action are different and the MSKT consent judgment did not determine the merits of any claim against the present Defendants.

The MSKT suit was brought against the driver of the vehicle who caused the road accident. The present action is brought against the government doctors and hospitals whose negligence in failing to diagnose and treat the resulting vascular injury led to the above-knee amputation. The parties are different. The duties of care are different. The legal relationships are entirely different. The driver owed a duty of care on the road; the Defendants owed a duty of care in the diagnosis and treatment of the Plaintiff's injuries. The MSKT suit concerned the negligence that caused the initial injury; this suit concerns the negligence that caused the loss of the Plaintiff's leg, which need not have occurred had the vascular injury been competently diagnosed and treated.

Nor does the wider principle in Henderson v Henderson (1843) 3 Hare 100 assist the Defendants. That principle, as adopted in Malaysia Supreme Court in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd, assist the Defendants. That principle requires that a matter "could and should" have been raised in the earlier proceedings. However, the Henderson principle presupposes that the earlier proceedings were between the same parties or their privies. The hospital Defendants were not parties to the MSKT suit, nor were they privies to the driver. The Plaintiff could not have joined the hospital Defendants in the Sessions Court road accident claim, which was founded on an entirely separate cause of action arising from a different tortious act.

In any event, even if the Henderson principle were capable of applying, the Federal Court has made clear that a broad, merits-based approach must be taken. In Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346, the Court of Appeal held that since the doctrine of res judicata is designed to achieve justice, a court may decline to apply it where to do so would lead to an unjust result. To bar a young plaintiff who has lost his leg through medical negligence from claiming the cost of a prosthesis, merely because he had settled a road accident claim against a different tortfeasor for a modest sum, would be manifestly unjust.

This Court has also considered the Defendants' reliance on Lim Soon Seng v Dee Eng Seng [2021] MLJU 1653 and Kembang Serantau Sdn Bhd v Perbadanan Putrajaya and another appeal [2024] MLJU 945 on the finality of consent judgments. In Lim Soon Seng, the High Court held that a consent judgment is for all intents and purposes a final order of the court settling the rights and liabilities of the parties and bears sanctity in the eyes of law. This Court does not dispute that principle. However, Lim Soon Seng concerned a dispute between the same two partners who had entered into the consent judgment. The question was whether the court could prescribe a time period in that very consent judgment. It did not address and cannot be authority for, the proposition that a consent judgment between a plaintiff and one tortfeasor operates as a bar against a separate action by that plaintiff against entirely different defendants arising from a distinct cause of action. The MSKT consent judgment is final and binding as between the Plaintiff and the driver of the vehicle. It does not extinguish the Plaintiff's separate cause of action in medical negligence against the present Defendants, who were not parties to and had no involvement in the MSKT suit.

Further, this Court would add that the authorities relied upon by the Defendants do not support the proposition for which they are cited. Kow Nan Seng is a case on apportionment of liability between joint tortfeasors under section 10 of the Civil Law Act 1956 [Act 67]. Far from supporting a bar on the present action, it affirms the right of an injured party to pursue successive tortfeasors, subject only to the principle against double recovery. Sri Tharan a/l Ganesan is distinguishable on its facts, as it concerned the same parties relitigating the same contractual cause of action. As for Wee You Kheong, that case does not address the issue of res judicata or cause of action estoppel at all. It is concerned with the assessment of damages in a combined road traffic accident and medical negligence claim where all defendants were sued in a single action.

This Court notes further that the Plaintiff has appropriately confined his claim in the present action to the consequences of the medical negligence. He has voluntarily conceded that he does not seek to re-claim for compartment syndrome pain and suffering in this action, having received settlement for the initial injury in the MSKT suit. This conduct is consistent with the principle against double recovery and negates any suggestion of abuse of process.

However, whilst this Court rejects res judicata as a complete bar, this Court accepts that the principle against double recovery is legitimate and relevant. The RM120,000.00 settlement in the MSKT suit undoubtedly covered some of the same documentary items now claimed, specifically medical receipts and transport expenses incurred between February and August 2019. Rather than a blanket disallowance of all special damages, the appropriate approach is to examine each head of special damages individually and deduct any item that is demonstrably referable to a loss already compensated in the MSKT settlement. A global set-off of the entire RM120,000.00 against the present claim would be neither principled nor just, as the MSKT settlement plainly encompassed heads of damage, such as pain and suffering for the road accident injuries, that are not claimed in the present action. Court’s Analysis

(a) General Damages

(i) Pain, Suffering and Loss of Amenities as a result of Above-Knee Amputation

The Plaintiff claims RM160,000.00 for pain, suffering and loss of amenities arising from the right above-knee amputation. The Defendants propose RM100,000.00 - RM120,000.00.

It is well established that awards for pain and suffering and loss of amenities should be in line with a discernible trend or pattern of awards in reasonably comparable cases. In Chin Boon Keng v Sri Jaya Transport Co. (P.T.M.) Ltd. & Anor. [1965] 2 MLJ 239, the Federal Court increased the general damages for a 13-year-old schoolboy's above-knee amputation, holding that the original award was not in line with the discernible trend in comparable cases. This principle was reaffirmed by the Federal Court in Tay Tong Chew & Anor. v Abdul Rahman bin Haji Ahmad [1985] 1 MLJ 50, where Mohamed Azmi FJ conducted an extensive review of awards for leg amputation above the knee and emphasised that the trend of awards should be maintained so that insurance companies and practitioners have some idea as to how these cases will ultimately be dealt with, facilitating out-of-court settlement and benefiting accident victims (citing see Nivasan & Anor. v Lim Yew Seng [1961] MLJ 22).

With this guiding principle in mind, this Court has traced the trend of awards for above-knee amputation. In Tay Tong Chew, Mohamed Azmi FJ canvassed the following authorities for above-knee amputation – CASE Teh Hwa Seong v Chop Lim Chin Moh & Anor. [1981] 2 MLJ 341 20,000.00 Abdul Wahab bin Kachi Mydin v Gan Ah Hoe [1978] 1 MLJ 186 21,000.00 Mahmod bin Kailan v Goh Seng Choon & Anor. [1976] 2 MLJ 239 35,000.00 Marie Decruz (Widow) v Loo Siew Kong (KS Dass on Quantum Vol. 2, p.354) 36,000.00 Elangovan v Lee Yew Kow & Anor. [1977] 1 MLJ lxxx 38,000.00 Yen Kwai Lan (M.W.) v Lim Eng Hing (KS Dass on Quantum Vol. 2, p.267) 45,632.00 Ibrahim bin Samsudin v Kong Pak Kooi (KS Dass on Quantum Vol. 2, p.266) 46,500.00

The Federal Court in Tay Tong Chew observed that at the time of that decision, no court in Malaysia had awarded more than RM50,000.00 for total loss of one leg. Awards for injuries falling short of amputation were accordingly to be assessed below that ceiling.

In Azizi bin Amran v Hizzam bin Che Hassan [2006] 4 MLJ 555, the Court of Appeal drew an important distinction between amputation and non-amputation cases. In referring to Azman Kasri & Anor. V. Md. Isa Endut & Govt. of Malaysia [1988] 2 CLJ 743 where RM45,000.00 was awarded for above-knee amputation together with RM12,000.00 for pain and suffering prior to the amputation, the Court of Appeal observed that in an amputation case, the pain from the original injury is resolved and the plaintiff is able to use a prosthesis, but the permanent loss of the limb and its impact on the plaintiff's quality of life endures. This distinction is important because it establishes that amputation cases occupy the apex of leg injury awards, a principle which the converse also supports - where an actual above-knee amputation has occurred, the award should properly reflect its position at the top of the range.

In Mohamad Shahnny bin Rahaman @ Zainal v Orathai @ Fatimah binti Abdullah [2009] MLJU 556, the High Court applied the Federal Court's reasoning in Tay Tong Chew and held that awards for non-amputation leg injuries should not exceed the trend for amputation cases. In that case, the defendant cited Abdul Rashid bin Ahmad [2007] 1 PIR (40) where RM65,000.00 was awarded for injury to the right knee and above-knee amputation. This figure, decided in 2007, represented a significant increase from the 1980s trend of RM45,000.00 - 46,500.00.

Moving to the cases cited by the parties before this Court, the trend continues its upward trajectory. For the awards for above-knee amputation, the Plaintiff cites the following cases – CASES Mohamad Hamzi lwn. Zakaria Omar Kamarudin Wan [2014] PILRU 73 90,000.00 Hairul Azwan Ahamad & Yang Lain lwn. Mohd Norhidayat Mohd Nor [2024] PILRU 42 160,000.00 Azmadarmawi Saupi lwn. Mohd Zamri Abu Bakar dan Satu Lagi [2020] PILRU 21 100,000.00 Ajaib Lal lwn. Wakil Peribadi Kepada Dhasarathan Yakaparam & Yang Lain [2022] PILRU 65 110,000.00

Additionally, in Sukhandar Singh a/l Hari Singh & Anor v Ramasamy a/l Kuppusamy and another case [2022] MLJU 3495, the Sessions Court awarded RM111,000.00 as general damages for above-knee amputation of the left lower limb together with related injuries and the High Court affirmed this award on appeal, finding no error in law in the quantum assessed.

Similarly, in Tan Yee Seong (Berniaga sebagai Tan Yee Seong Enterprise) lwn Mohd Husaini bin Abu Hassan [2025] MLJU 1999, the High Court affirmed the Sessions Court award of RM130,000.00 for femur fracture with crush injury left leg (above-knee amputation together with muscle wasting).

In summary, the full progression of awards may therefore be summarised as follows – PERIOD RANGE 1960s - 1970s 21,000.00 - 46,500.00 1980s 45,000.00 2007 65,000.00 2014 90,000.00 2020 100,000.00 2022 110,000.00 - RM111,000.00 2024 160,000.00 2025 130,000.00

The discernible trend is clear. The current range for above-knee amputation awards is between RM111,000.00 and RM160,000.00. Where an award falls within that range depends on the particular circumstances of each case.

This Court observed that the award in Tan Yee Seong at RM130,000.00 involved a road traffic accident victim who was a driver by occupation. The award in Sukhandar Singh at RM111,000.00 similarly involved a road traffic accident. These cases, while confirming the upward trend, involved plaintiffs whose loss of amenities, though undeniably significant, did not carry the additional dimension present in this case. The Plaintiff before me was 19 years old at the time of amputation and was a national cricket athlete representing Malaysia. His entire sporting career and his professional trajectory as a sports educator have been permanently extinguished. The loss of amenities in such circumstances is qualitatively different from, and greater than, that suffered by a plaintiff of ordinary occupation.

In Tay Tong Chew & Anor. v Abdul Rahman bin Haji Ahmad [1985] 1 MLJ 50, the Federal Court recognised that the respondent's active involvement in sports prior to the accident, i.e. rugby and swimming at MARA College, was a significant factor in the assessment of loss of amenities. The Plaintiff before me was not merely recreationally active. He was a competitive national athlete whose identity and livelihood were built around his physical ability.

In addition, the following factors further distinguish this case and support an award at the upper end of the current range –

(a) the Plaintiff suffers ongoing phantom limb pain since the day of amputation;

(b) he has endured four stump infections and subsequent surgeries, constituting repeated episodes of pain and suffering beyond the initial amputation;

(c) the psychological impact, expressed as a sense of physical inadequacy affecting his personal and social life, is real and substantial; and

(d) this is a case of medical negligence, not a road traffic accident. The Plaintiff was admitted to a government hospital for treatment and emerged with an avoidable amputation. The particular breach of trust inherent in receiving hospital care is a factor which this Court considers relevant in situating the award within the range of comparable authorities.

The Plaintiff's reliance on Mohamad Hamzi v Zakaria Omar (2014) at RM90,000.00 is noted, but that authority is now over a decade old and falls well below the current trend line. Even Tan Yee Seong

As for the Defendants' argument that phantom limb pain should not be separately awarded, this Court accepts that submission to the extent that I do not make a separate head of claim for it. However, phantom limb pain is a recognised and documented consequence of above-knee amputation, well supported by the medical evidence in this case and is properly reflected in the global pain and suffering award.

This Court is satisfied that the discernible trend of awards supports an award in the range of RM111,000.00 to RM160,000.00 for above-knee amputation at the present time and that the particular circumstances of this young national athlete's case the severity of loss of amenities, the ongoing complications and the medical negligence context, place this case squarely at the upper end of that range. The award of RM160,000.00 cited in Hairul Azwan Ahamad is the most directly comparable, given the recency of the decision and the current trajectory of awards.

Accordingly, this Court awards RM160,000.00 under this head.

This is the central financial issue in this case. The parties position are differ on this head, with the difference between the positions exceeds RM3,000,000.00.

The Plaintiff claims a microprocessor-controlled knee prosthesis (C-Leg 4 / Otto Bock system), with a lifetime cost of RM3,639,110.00 based on the 2024 Lazcorp Rehabilitation Sdn Bhd quotation (11 units over 64 years at RM283,310.00 per unit with accessories).

On the other hand, the Defendants propose a mechanical hydraulic knee prosthesis (3R60 system, HASBA Medik Sdn Bhd), at RM69,980.00 per unit with a lifetime total of RM567,980.00 (7 units based on life expectancy of 69.3 years (current age 26), 6-year replacement cycle).

Both parties called expert witnesses. From the Court’s observation, the Defendants' expert, DW1, a rehabilitation specialist from Hospital Serdang and the Plaintiff's expert PW1, both agreed that the functional outcome is broadly comparable between the mechanical and microprocessor devices. The distinguishing factor is the mechanism of operation, i.e. the microprocessor knee uses computer-assisted technology to detect and respond to the user's gait pattern, reducing stumbling and fall risk and better accommodating varied terrain and activity levels.

The critical exchange in this case occurred when DW1 was cross-examined on the suitability of the microprocessor prosthesis for this specific Plaintiff. PL : "Taking into consideration training atau rawatan rehabilitasi untuk pengunaan kaki, satu kaki microprocessor adalah lebih sesuai untuk khususnya pesakit ini memandangkan dia masih lagi umur muda dan adalah lebih aktif. Berbanding dengan mechanical". DW1 : "Sekiranya dilatih". PL : "Lebih sesuai ya"? DW1 : "Sekiranya dilatih".

The Defendants' own expert therefore conceded, under oath that the microprocessor knee is more suitable for this Plaintiff, a young, formerly active individual, subject to the condition of proper training and rehabilitation.

The Defendants sought to capitalise on the fact that the Plaintiff, at the time of DW1's assessment, was not wearing his existing prosthesis and had not fully adapted to prosthetic use in the six years since the amputation. This, they argued, suggested that awarding an expensive microprocessor prosthesis would be speculative.

This Court rejects this argument entirely. It is clear that DW1 himself confirmed that standard protocol following above-knee amputation requires immediate inpatient referral to the Rehabilitation Department. He stated : "Biasanya selepas pembedahan, amputasi, selepas amputasi, immediately mereka akan dirujuk kepada pakar rehab di hospital secara inpatient".

He further acknowledged that in this case, that referral did not happen and it appears to have been overlooked. In his own words : "mungkin terlepas pandang".

The Plaintiff received only one follow-up at HSA on 15 August 2018, with no structured rehabilitation programme thereafter. He was discharged into the community following a life-changing amputation without any meaningful rehabilitation support.

Therefore, this Court is of the view that the Defendant cannot rely, as a basis for reducing the quantum of damages, on consequences that are themselves the product of the defendant's own negligence or failure of duty. The failure to adapt to prosthetic use is a direct consequence of the hospital system's failure to provide the rehabilitation that was its standard protocol obligation. To use that failure against the Plaintiff when assessing which prosthesis he is entitled to would be to allow the Defendants to benefit from their own wrong.

The Defendants place great reliance on Wee You Kheong v Hasbullah bin Azhar & Ors [2025] MLJU 1372, in which the High Court rejected the microprocessor prosthesis claim and awarded the mechanical 3R60 hydraulic system at RM80,000.00 per unit.

This Court distinguishes Wee You Kheong on two material grounds. First, in that case there was no concession by the defendants' own expert that the microprocessor was more suitable for the plaintiff. In the present case, DW1 conceded precisely that under cross-examination. Second and more fundamentally, in Wee You Kheong the court's rejection of the microprocessor was based on the plaintiff's own unfamiliarity with the system and the absence of evidence of purchase intent, matters within the plaintiff's own control. In the present case, the Plaintiff's failure to adapt to prosthetic use is directly and entirely attributable to the hospital's own failure to refer him to rehabilitation following amputation, as confirmed by DW1 himself. A defendant cannot rely on the consequences of its own breach of duty to diminish the Plaintiff's entitlement to the prosthesis most suitable for him.

Having found that the microprocessor prosthesis is the more appropriate device for this Plaintiff, this Court turns to the lifetime quantum.

The Plaintiff's full claim of RM3,639,110.00 is based on an 11-unit replacement cycle over 64 years. This Court finds this calculation unsatisfactory for the following reasons.

(a) it is based on a 5-year replacement cycle applied over a period stretching to age 90, using 2024 pricing without any methodology for price escalation; and

(b) no actuarial or present value discount has been applied to the lump sum award for the accelerated receipt of future expenditure.

In contrast, this Court applies the following principled calculation – PARAMETER VALUE Life expectancy (as agreed by parties)

69.3 years Current age 26 years Remaining years 43.3 years Replacement cycle (manufacturer guidance) 5 years Number of units 43.3 divided by 5 years = approx 8 units Unit cost (based on 2024 Lazcorp quotation) RM283,310.00 Sub-total (8 units) RM2,266,480.00 Accessories and components (quotation allowance) RM350,000.00 Gross total RM2,616,480.00 Less : 35% actuarial discount (lump sum) (RM915,768.00) NET AWARD

This award is grounded in the expert evidence, reflects the followings–

(a) DW1 concession on suitability;

(b) properly accounts for the rehabilitation failure that explains the Plaintiff's non-adaptation; and

(c) applying a principled actuarial discount for the accelerated receipt of a lump sum representing 43 years of future expenditure.

The Plaintiff is currently unemployed. His last employment was as a worker at a prosthetic shop in 2019, earning approximately RM1,000.00 per month for a period of approximately 2 - 6 months. Prior to the accident, he was enrolled at Sekolah Sukan Bukit Jalil with a realistic aspiration of qualifying as a sports teacher or national sports coach, a career trajectory foreclosed by his amputation.

The Plaintiff has not pursued tertiary education. The UPU application window has closed. However, other routes to professional qualification remain available. The Defendants are correct that minimum wage (currently RM1,700.00 per month) is achievable in various occupations regardless of OKU status. The claim is therefore properly characterised as one for loss of earning capacity, i.e. the diminution in the Plaintiff's capacity to earn what he could have earned but for the negligence, rather than a straightforward multiplier calculation.

Taking into account the Plaintiff's age, his former athletic career, his SPM qualifications (all credits), the realistic but now-disrupted pathway to a sports education career and his current earning capacity, this Court is of the view that it is appropriate to give a global award.

In arriving at a global award under this head, this Court takes into account the following considerations –

(a) this Court takes a judicial notice that a qualified sports teacher or coach in the government sector would realistically earn in the range of RM2,500.00 to RM3,500.00 per month, a career the Plaintiff was actively pursuing at the time of the negligence;

(b) against this, this Court accepts that the Plaintiff retains some residual earning capacity. He is educated to SPM level with full credits, is not cognitively impaired and minimum wage employment is available to him as a person with OKU status; and

(c) the differential between his projected career earnings and his current earning capacity, discounted for the uncertainties of what he would have achieved and the accelerated receipt of a lump sum, supports a global award in the region of RM90,000.00.

This Court is also guided by the Federal Court in Tay Tong Chew & Anor v Abdul Rahman bin Haji Ahmad [1985] 1 MLJ 50, where it held – "It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages".

The Federal Court further confirmed that the fact that a plaintiff is a non-wage-earner or unemployed at the time of injury does not preclude an award, holding that "merely because an injured child or adolescent is a non-wage-earner it does not mean that he can never be entitled to damages for loss of earning capacity".

Taking into account all past and future contingencies, this Court awards RM 90,000.00 for loss of earning capacity.

(b) Special Damages

In assessing special damages, this Court is mindful of the MSKT Consent Judgment. The settlement of RM120,000.00 was paid on 28 August 2019 as full and final settlement for all claims in the MSKT suit. Several of the items now claimed in this suit, including medical receipts and transport expenses were also filed in the MSKT suit. Hence, rather than disallowing all special damages, this Court disallows items that demonstrably duplicate the MSKT claim and allows items that are genuinely additional.

(i) Medical and Hospital Expenses

The Defendants have produced a document-by-document comparative table demonstrating that the medical and hospital receipts filed in this action are the same receipts filed in the MSKT suit. This Court accepts this evidence. These items are disallowed as they fall within the scope of the RM120,000.00 MSKT settlement.

The same reasoning applies. No fresh receipts for transport expenses post-dating the MSKT settlement have been produced. This item is disallowed.

The Plaintiff gave evidence that his mother cared for him from the time of the accident until approximately 2019, when she resumed employment. While no salary evidence was adduced, this head of claim is not entirely duplicative. The caregiving obligation arose from and continued after the amputation. This Court makes a modest global assessment for the value of gratuitous care provided between March 2018 and August 2019 (approximately 17 months), at RM800.00 per month. Accordingly, this Court awarded RM13,600.00 under this head.

The Plaintiff confirmed –

(a) he has not undergone any surgery since 24 August 2018 and has no anticipated future surgical costs;

(b) he is not currently undertaking any physiotherapy and gave no evidence of expenditure thereon;

(c) he attended no vocational rehabilitation classes and proved no expenditure; and

(d) he confirmed under cross-examination that he drives his own car and does not require OKU vehicle adaptation.

In conclusion, these claims are unsupported by the evidence. Accordingly, this Court disallows this claim.

(v) Surgical Report Costs

These are proper legal costs of litigation and are allowed at the claimed amount. Accordingly this Court allows RM2,770.55. The calculation is as follows – DETAILS REFERENCE AMOUNT Official receipt issued on 06.06.2018 by Hospital Kota Tinggi for medical report page 386, Enclosure 17 40.00 Official receipt issued on 25.06.2018 by Hospital Sultan Ismail, Johor Bahru for medical report page 387, Enclosure 17 40.00 Official receipt issued on 26.04.2018 & 29.04.2018 by Hospital Sultanah Aminah, Johor Bahru for medical reports page 388, Enclosure 17 80.00 Original receipt issued on 07.09.2021 by KPJ Selangor Specialist Hospital for expert opinion report page 22, Enclosure 35 2,610.55 TOTAL 2,770.55

(c) Aggravated And Exemplary Damages

The Plaintiff claims RM500,000.00 as aggravated damages and RM1,000,000.00 as exemplary/punitive damages.

(i) Aggravated Damages

The governing authority on aggravated damages in medical negligence is the recent Court of Appeal decision of Bukit Tinggi Hospital Sdn Bhd & Anor v. Navin Sharma Karam Chand & Anor and Another Appeal [2025] 10 CLJ 574. The Court of Appeal held that aggravated damages in medical negligence cases require proof of malicious, contumelious, offensive, outrageous or exceptional behaviour. Mere negligence, even serious or consequentially devastating negligence, does not suffice. The Court of Appeal explained that aggravated damages are generally inappropriate in medical negligence cases, following the English position in Kralj v McGrath [1986] 1 All ER 54.

This Court has carefully considered whether the facts of this case cross the threshold. The original negligence by D2 was a misdiagnosis, a failure to investigate a vascular emergency adequately. When the Plaintiff returned two days later, D2 immediately and appropriately referred him for urgent specialist care. There is no evidence of malice, high-handedness or deliberate disregard of the Plaintiff's welfare. The clinical error, however consequentially devastating, appears to have been made in good faith.

This Court has also considered the failure to refer the Plaintiff to rehabilitation following amputation. While this is a serious systemic failure that has materially worsened the Plaintiff's situation, I cannot characterise it as contumelious or outrageous conduct within the meaning of Bukit Tinggi Hospital Sdn Bhd. It appears to be institutional oversight rather than deliberate indifference.

Accordingly, this Court declines to award aggravated damages.

It is well established that exemplary damages require proof of vindictiveness, malice, or contumelious disregard of the Plaintiff's rights. Unfortunately, no such conduct has been pleaded or established on the evidence. Hence, exemplary damages are not warranted. Court’s Decision

The summary of award considered are as follows – HEAD OF DAMAGE Pain, Suffering & Loss of Amenities 160,000.00 Prosthesis (Lifetime, Microprocessor, 8 units) 1,700,712.00 Loss of Earning Capacity 90,000.00 Family Caregiving (17 months × RM800) 13,600.00 Surgical Report Costs 2,770.55 Medical Expenses disallowed - MSKT duplicity Transport Expenses disallowed - MSKT duplicity Future Physiotherapy / Surgery / OKU Vehicle NIL Aggravated Damages disallowed Exemplary Damages disallowed TOTAL 1,967,082.55

Accordingly, this Court makes the following orders –

(a) Judgment is therefore entered for the Plaintiff in the sum of RM1,967,082.55 together with interest thereon at the rate of 5% per annum from the date of service of the Writ to the date of judgment and at the rate of 5% per annum on the judgment sum from the date of judgment until full settlement; and

(c) Costs of RM80,000.00 are awarded to the Plaintiff, subject to the allocator fee. Dated : 25 February 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Sivil 2 Johor Bahru Solicitor for the Plaintiff : : Hardeep Singh Mann Messrs N.M. Tiong & Co Solicitor for the First Defendants : : Suhana Sabil together with Nur Najihah Hamidi Senior Federal Counsel (on behalf of the Attorney General)