Noorasmawati Binti Abu Othman v 1. Kerajaan Malaysia (BA-22NCVC-620-12/2018)

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DR MOHD FARID BIN SOFIAN 20 @ RIDZWAN

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JURURAWAT SITI NOOR FARIDAH ABDUL

JURURAWAT NURUL ELLMIE MOHD JAMIL 25

JURURAWAT ARBATON ADAUWIAH

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JURURAWAT IZZATI AKMAL ABDUL 30

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JURURAWAT NOR SUHAILA ABD KADIR 2

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JURURAWAT UMI RABBIYATUL

JURURAWAT WAN TATTY ANIZA WAN MOHD 5 …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT 10

This is the Plaintiff’s claim against the Defendants and each of them for negligence and breach of statutory, contractual and/or other duties. On the 29th of January 2020, liability was admitted by the 1st, 4th and 6th 15 Defendants and the claim was discontinued against the other Defendants. The trial proceeded only on the issue of damages. CAUSE PAPERS 20

The relevant cause papers pertaining to this suit are as follows - Enclosure No. Document Type 1 Writ Saman 3 Pernyataan Tuntutan 8 Pembelaan 3 9 Ikatan Pliding 10 Senarai Saksi 11 Ringkasan Kes 12 Fakta Yang Dipersetujui 13 Ikatan Dokumen Bersama (Common Bundle) 16 Isu-Isu untuk Dibicarakan 17 Pernyataan Tuntutan Terpinda 21 & 23 Pembelaan Terpinda 25 Ringkasan Kes 30 Ikatan Pliding Terpinda 31 Senarai Saksi Terpinda 32, 33, 38

The Plaintiff had called three (3) witnesses, namely:

PW1 : Professor Dr Lydia Abdul Latif 5

(ii) PW2 : Noorasmawati Binti Abu Othman

(iii) PW3 : Rahim bin Ali

The Defendants had called one (1) witness, namely: 10

DW1 : Dr Norzalilah binti Abdul Majid BRIEF FACTS 15 5. The facts are as gathered from the submissions of parties. I respectfully adopt them subject to some modifications. 4

This is a medical negligence case concerning the Plaintiff, a 40-year-old housewife at the time of the incident.

The 2nd to 7th Defendants were doctors whilst the 8th to 18th Defendants were nurses employed in a government hospital known as “Hospital 5 Selayang” which is owned and managed by the 1st Defendant.

The Plaintiff was admitted to Hospital Selayang on the 12th of December 2015 for a catheter-related blood stream infection. On the 13th of December 2015, the Plaintiff was treated for fast atrial fibrillation with Noradrenaline 10 and Amiodarone which were given intravenously through her right hand.

On the 14th of December 2015, the first signs of arterial compromise in the Plaintiff’s right hand had been detected when she developed signs and symptoms of right-hand thrombophlebitis at the site of cannulation on the 15 dorsum of her right hand.

About two days later, radiological investigations were undertaken and the Defendants had thereafter purportedly concluded that the Plaintiff’s right hand was not salvageable.

On the 21st of December 2015, the Plaintiff underwent trans-humeral amputation of the right limb at Hospital Kuala Lumpur.

The Plaintiff has suffered catastrophic injuries and is now dependant on her 25 family members, especially her husband, a lorry driver, for some of her activities of daily living and also for undertaking her household responsibilities.

Thereafter, the Plaintiff initiated a legal suit against the Defendants and 30 claims general damages, aggravated damages, special damages, interests and costs. 35 5

In dealing with the issue of quantum of damages, I shall refer to some established legal principles. The standard of proof as regards to future damages is stated in the case of Schrump et al v Koot et al (1977) 82 5 DLR (3d) 553 where it was held that: - “In this area of the law relating to the assessment of damages for physical injury, one must appreciate that though it may be necessary for a Plaintiff to prove, on the balance of probabilities, that the tortious act or omission was the effective cause of the harm suffered, it is not necessary for him to prove, on the balance of probabilities, that future loss or damage will occur, but only that there is a reasonable chance of such loss or damage occurring … … 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 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 than 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.”

The Federal Court in the case of Inas Faiqah bt Mohd Helmi (an infant 10 suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1 held as follows: - 6 “[20] 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. The Court should not descend into a domain of speculation. The evaluation of those evidence, which form the basis of any risk of future damage, must therefore still be undertaken. And the trial judge can only evaluate such evidence based on the recognised balance of probability standard.”

In addition, the law on damages in general was very well expounded by James Foong FCJ in the Federal Court decision of Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors 5 [2009] 4 MLJ 610 at 665 as follows (the (earned Judge citing from McGregor on Damages (16th ed. at page 236): “A Plaintiff claiming damages must prove his case. To justify an award of substantial damages he must satisfy the Court both as to the fact of damage and as to its amount, if he satisfies the Court on neither, his action will fail, or at the most he will be awarded nominal damages where a right has been infringed. If the fact of damage is shown but no evidence is given as to its amount so that it is virtually impossible to assess damages, this will generally permit only an award of nominal damages; this situation is illustrated by Dixon v Deveridge [1825] 2 C & P 109 and Twyman v Knowles [1853] 13 CB 222.”. 10 7

The trial on quantum of damages took place on the 28th of September

Upon hearing the witnesses and scrutinizing the evidence adduced during the trial and hearing the submission of both counsels, I find that the 5 Plaintiff has managed to prove the following damages as prayed for in the Plaintiff’s Statement of Claim. A. General Damages 10

As enunciated in the case of Shen & Sons Sdn Bhd v Jutawarna Development Sdn Bhd & Ors [2016] 7 MLJ 183, general damages are damages which the law presumes to flow from, and as if it were the natural 15 and probable consequence of the Defendants’ act. Therefore, the general damages need not be pleaded specifically nor need any evidence be produced to prove them as such. In the case before this Court, the Plaintiff endured pain and suffering and loss of amenities of life as the consequence of the 1st, 4th and 6th Defendants’ action.

The pertinent part of the incident was when the Plaintiff ‘s long delayed transfer to Vascular Unit at the Hospital Kuala Lumpur on the 16th of December 2015. The Plaintiff was informed that she had simply come too late and nothing could be done to save her right arm. The Plaintiff then 25 underwent surgery to amputate her arm on the same day.

Further, Plaintiff’s counsel summarised their evidence in respect of the lifestyle changes that the Plaintiff had to endure. The Plaintiff was an independent woman and her life has drastically changed following the 30 above-elbow amputation of her dominant arm. The Plaintiff also was referred to psychological treatment and counselling as DW1 had noted that Plaintiff was depressed. 8

I am of the view that the compensation for pain and suffering of the Plaintiff must consider the physical injuries suffered by the Plaintiff, the amenities of the Plaintiff’s life that she continues to lose to this day as well as the mental distress that was caused to the Plaintiff. I agree with the submissions of the Plaintiff’s counsel that these injuries are highly debilitating and have 5 affected the Plaintiff’s quality of life. The chronic pain she suffers is very much a daily feature of her life. She is unable to perform daily chores as usual and her personal and family life too has suffered setbacks.

The Plaintiff’s counsel has classified the pain and suffering and loss of 10 amenities into four (4) categories and submitted the following amount respectively:- a) The pain and suffering due to the extravasation of the drug; 15 b) The pain and suffering and loss of amenities of life due to the loss of the dominant arm: c) The pain and suffering due to the phantom pain; and 20 d) The pain and suffering due to the deformity and scarring.

The case referred to are : 25

Lee Yaw Long v Dr Ganapathi Pillai and 3 Others, Kuala Lumpur High Court Civil Suit No. 22-299-2003, for injuries to the small bowel/intestine that led to multiple operations, the Court awarded the sum of RM 250,000.00. 30

Punnithawatty a/p Kumarasamy and 2 others v Dr Norhayati binti Hamid and 7 others, Kuala Lumpur High Court Civil Suit No. 21NCVC-59-08/2013, the Court awarded the sum of RM 300,000.00 for pain and suffering and loss of amenities of life for a 9 deceased patient who had endure painful invasive and surgical procedures throughout a period of 3 years, including insertion and removal of tracheostomy tubes (through an opening in the throat), gastrostomy tubes (through an opening in the stomach), and chest tubes (to drain out fluid in the lungs).

Sheela Christina Nair v Regency Specialist Hospital Sdn Bhd & Ors [2016] 9 CLJ 267 (PBOA), the Court awarded the sum of RM 240,000.00 as general damages for pain and suffering to the Plaintiff who had undergo one negligent operation undertaken by the 10 Defendant’s doctor and two corrective operations.

Chai Beng Hock v Sabah Medical Centre Sdn Bhd & 2 Ors [2011] 2 AMR 741, the Court awarded the sum of RM 250,000.00 for pain and suffering and loss of amenities of life for a total knee 15 replacement surgery that was negligently performed which led to the Plaintiff suffering frequent pain at his knee.

On the other hand, the Defendants’ counsel suggested a sum of RM 150,000.00 ought to be awarded to the Plaintiff. The Defendants’ counsel 20 relied on the case of Mohd Zulkarnain bin Mohamed Rokani & Ors v Pengarah Hospital Sultan Ismail Johor Bahru & Ors [2020] MLJU 1338 whereby, the Court awarded the sum of RM 190,000.00 as general damages for pain and suffering and the loss of amenities of life.

However, both the counsels agreed in their submissions that in order to avoid risk of any overlapping between the head of injuries, the Court ought to award a lump sum award. The Plaintiff’s counsel submitted that the total sum of RM 370,000.00 to be reduced to lump sum of RM 335,000.00. In the circumstances, I find that the sum of RM 260,000.00 (The total sum of 30 370,000 submitted by the Plaintiff to be deducted by 30%) would be a reasonable sum in the circumstances as general damages for pain and suffering and loss of amenities of life, including for the rest of his life. The 10 30% deduction is due to the fact that the injuries are all concentrated on one part of the body, namely, the right arm of the Plaintiff.

In respect of the special damages, it is a trite law that the special damages if pleaded, have to be specifically proven by the claimant. In the case of Ong Ah Long v Dr S. Underwood [1983] 2 MLJ 324, the Federal Court held that: 10 “...it is a well-established principle that special damages in contrast to general damages, have to be specifically pleaded and strictly proved.”.

Further the Federal Court in the case of Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 reiterated that principle and held that: 15 “It is to be observed that the law in regard to a claim for special damages is clear law in that it must not only be pleaded but proved.”.

In terms of special damages, I find that the Plaintiff had succeeded in proving the following special damages: 20 11

I find that the Plaintiff had successfully proved that she had incurred the medical expenses in the sum of RM 947.00 based on the hospital bill produced which is found at page 670 and 671 of Bundle D3. 5

The Court award the sum of RM 40.00 as there is no objection from the Defendants and based on receipts produced by the Plaintiff. 10

At the outset, I find that the application for pre-action discovery of the Plaintiff ‘s medical records and other documents was necessary, as both 15 the Hospital Selayang and Hospital Kuala Lumpur took the position they would only disclose the medical reports if there is a Court’s order.

I note that the sum of RM 7,420.00 had been pleaded in the Statement of Claim and the Plaintiff herself had testified that said sum was the legal cost 20 for application to obtain the Order for pre-action discovery. It has been highlighted by the Plaintiff’s counsel that the Defendants’ counsel had not challenged the Plaintiff or her husband when both of them gave their testimonies in Court.

Thus, I am inclined to agree with the submission of the Plaintiff’s counsel that in the absence of any challenged made by the Defendants’ counsel to the said cost during the trial, the evidence ought to be taken as true by the Court. Further, I find that the sum of RM 7,420.00 is a reasonable sum for application for pre-trial discovery of medical reports as can be seen from 30 the case of Nur Syarafina Saariv. Kerajaan Malaysia & Ors (2019) 9 CLJ 246 where a sum of RM 10,000.00 was held by the Court to be a reasonable estimate of solicitor’s and client’s costs for a similar application. 12

The Plaintiff argued that the Plaintiff is entitled in law to claim damages the gratuitous cost of care by her husband. On this, the Plaintiff referred the Court of Appeal decision in the case of Donnelly v Joyce [1974] QB 454 5 which held as follows :- “We do not agree with the proposition … that the Plaintiff’s claim, in circumstances such as the present, is properly to be regarded as being … ”in relation to someone else’s loss.” merely because someone else had provided to, or for the benefit of, the Plaintiff – the injured person – the money, or the services to be valued as money, to provide for needs of the Plaintiff directly caused by the Defendant’s wrongdoing. The loss is the Plaintiff’s loss. The question from what source the Plaintiff’s need have been met, the question who has paid the money or given the services, the question whether or not the Plaintiff is or is not under a legal or moral liability to repay, are, so far as the Defendant and his liability are concerned, all irrelevant. The Plaintiff’s loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages – for the purpose of the ascertainment of the amount of his loss – is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the Defendant is concerned, the loss is not someone else’s loss. It is the Plaintiff’s loss (emphasis supplied).” .

The Defendants’ counsel argued basically, that it is the duty of the family 10 members to take care of the members of the household when they fall ills. 13 Further, the Defendants’ counsel argued that the Plaintiff is not in a vegetative state and there is no evidence that the Plaintiff requires assistance for her daily activities.

I find that the Defendants’ argument very difficult to accept as this clearly 5 contradict the evidence of both Plaintiff’s expert and Defendants’ expert testimony. Both the experts agreed that the Plaintiff requires assistance in her daily activities

At page 8 and 9 of the Notes of Proceeding, Professor Lydia (PW1) testified 10 that she noted that the Plaintiff has got difficulty in her personal and domestic activities of daily living. “MSD : Doctor, you have mentioned in your Expert Report that the Plaintiff will need assistance for some activities of daily living. Why do you say so? PW1 : Like I said, our speciality is assessing physical functioning of a patient. So, that is part of what we assess when we see the patient. So, during our history taking as well as clinical examination, we ask patient how she perform her day-to-day function. This is a routine assessment that we do in our assessment. So, she volunteers the fact that she has got difficulty in performing personal activities of daily living. But nevertheless, she has learned to adapt and modify. So, that is how I derived my findings. And then, based on clinical examination, we assess her physical findings and her functional assessment, we noted that she also has got difficulty in personal and domestic activities of daily living. (emphasis supplied)” 15 14

At page 65 of the Notes of Proceeding, Dr Norzalilah (DW1) testified as follows :- “MSD : Doktor juga setuju dengan Dr Lydia bahawa pesakit perlu bantuan bagi some activities of daily living? DW1 : Ya, setuju (emphasis supplied)”

It must be noted that the Defendants’ counsel, as in the alternative, has offered a sum of RM 18,000.00 for the value of care at the rate of RM

500.00 per month for the period of thirty-six (36) months. The Plaintiff’s counsel subsequently, agreed to this offer of RM 500.00 per month, instead of RM 3,000.00 per month as claimed by the Plaintiff initially.

In light of the aforesaid, the Court award a sum of RM 18,000.00 for the value of care by the Plaintiff’s husband during the said period of thirty-six

months. 15 C. Pre-Trial Damages

With similar reasons as above, the Court award the sum of RM 12,000.00 for the value of care, RM 500.00 per month calculated from 10th December to 10th December – a period of twenty-four (24) months). 20

In assessing damages for personal injuries, the award may cover not only all injuries suffered and disabilities proved as of the date of trial. The risk or 25 likelihood of future developments attributable to such injuries must also be considered. 15

As stated in the case of Schrump ([1977] 82 DLR (3d) 553), the future contingencies which are less than probable are regarded as factors to be considered, provided they are shown to be substantial and not speculative.

With the existence of expert witnesses and in assessing the damages, this 5 Court will have to look far into the future and speculate the Plaintiff’s needs arising from the condition of the Plaintiff. In respect future damages, the Plaintiff is claiming for the following costs: - a) The cost of engaging the services of maid; 10 b) The cost of alternative prosthesis and replacement; c) The cost of therapies and consultation; 15 d) The cost of medical consultation; and e) The cost of occupational therapy.

The Plaintiff’s counsel referred the Court to the Department of Statistic Malaysia, Press Release Abridged Life Table Malaysia, 2018 - 2020 and invited the Court to take judicial notice of the fact that the life expectancy of a Malay female in Malaysia is 76.3 years.

In calculating the multiplier, deductions are made to the life expectancy. The Plaintiff’s counsel urged the Court to take a bold and logical step of departing from the 30% or 1/3 deduction that has been applied by our Court and apply a lesser deduction of 15%. It was argued by the Plaintiff’s 30 counsel that in England, the Court has taken an active role in revising the discount rate to be used by taking into account the current economic conditions and the banking/deposit rates. 16

Further, the Plaintiff had highlighted that the High Court in two cases involving brain-damaged adults, had applied 15% discount rate for the purpose of calculating the multiplier. (see case of Fareed Reezal bin Arund v Pantai Medical Centre Sdn Bhd & 4 Ors (Kuala Lumpur High Court Civil Suit No. WA-22NCVC-33-01/2016) and case of Mariesosela 5 a/p Anthony v. Kerajaan of Malaysia & 6 Ors (Kuala Lumpur High Court Civil Suit No. WA-21NCVC-24-05/2019).

Accordingly, the Plaintiff proposed a multiplier to be applied is as follow:- 10 “Life expectancy

76.3 years Less current age (45 years) Less 15% for contingencies (4.70 years) Multipier 26.60 = 27 years

On the other hand, the Defendants’ counsel submitted that based on the decision of the Court of Appeal in the case of Inas Faiqah v. Kerajaan Malaysia (2015) 3 CLJ 153 which decision was accepted by the Federal 15 Court, the multiplier to be applied is calculated as follows :- 77 (jangkahayat) – 45 (umur sekarang) = 32 Less 1/3 contigency 32/3 = 10.6 32 – 11 = 21 Multiplier untuk masa hadapan adalah 21 Tolakan contingency yang menjadi amalan Mahkamah adalah sebanyak sepertiga.” 17

For a simple reason that this Court is bound by the decision of Court of Appeal in the case of Inas Faiqah as submitted by the Defendants’ counsel, the Court adopts and agrees with the calculation submitted by the Defendants and hereby fixed a multiplier of 21 years. In other words, the Court deduct 1/3 for contingencies and vicissitudes of life. 5 Cost of engaging the services of a maid

I find that there is a sufficient evidence to show that the Plaintiff requires the services of a maid in assisting her for some activities of daily living in the 10 future. The evidence not only comes from the Plaintiff’s expert witness (Professor Lydia-PW1) but also from the Defendants’ own witness (Dr Nurzaililah-DW2), lending support that the Plaintiff requires assistance for some activities of daily living. 15

The Plaintiff relied on the report made by Professor Lydia (PW1) in which stated that the estimated initial processing fees to obtain a maid is about RM 10,000.00 and the estimated monthly cost of employing a maid is about

The Defendants’ counsel argued that the monthly sum of RM 2,000.00 stated or estimated in the report made by Professor Lydia is rather high. Further, the Defendants’ counsel argued that Professor Lydia is not qualified to give evidence on this matter as it is not within her expertise.

Despite the said argument put forth, there is no evidence presented by the Defendants to challenge or rebut the said estimation made by Professor Lydia in her said report.

In the absence of any evidence by the Defendant to rebut the said monthly 30 cost RM 2,000.00, I accept the estimate given by PW1 as being a reasonable amount. Accordingly, the full cost of obtaining and engaging a maid to be awarded is as follows :- 18 “The initial Processing fees of RM 10,000.00 + Monthly cost of RM 2,000.00 per month x Multiplier of 21 years = RM 514,000.00“

Professor Lydia (PW1) in her report recommended an alternative 5 osteointegration prosthesis for the Plaintiff and from a rehabilitation perspective, found that the Plaintiff to be suitable candidate for the same. The cost of such alternative prosthesis is said to be about RM 250,000.00. and the cost of replacement is an equal like sum per placement. She recommended two placements for the Plaintiff. On the hand, there is no 10 evidence by the Defendants’ expert witness, Dr Norzalilah (DW1) to say that the said alternative Osteointegration is not necessary or suitable for the Plaintiff. In other words, there is evidence by the Defendants which contradict or rebut Professor Lydia’s said recommendation. Instead, Dr Norzalilah (DW1) agreed that the Plaintiff is not a suitable candidate for a 15 conventional prosthesis.

In light of the evidence of Professor Lydia above which was left unrebutted or challenged, the Court award the cost of alternative prosthesis and two placement, as per the Plaintiff’s calculation as follows :- 20 “ RM 25,000.00 for first prosthesis + RM 25,000.00 x 2 placements = RM 750,000.00” 19 Cost of medical consultation/cost of physiotherapy/cost of occupational therapy

It is Professor Lydia’s (PW1) recommendation that the Plaintiff should undergo medical consultation, physiotherapy and occupational therapy. As 5 pointed out by the Plaintiff’s counsel that there was no challenge from the Defendants’ counsel in respect of PW1’s recommendation of treatment at private hospital. Further, PW1 gave evidence on the cost involved for the said medical consultation, physiotherapy and occupational therapy. Thus, I would allow the award for these costs which is calculated as follows : 10 i. Cost of Medical Consultation RM 250.00 per visit x 3 visits per year x multiplier of 21 years = RM 15,750.00. 15 ii. Cost of Physio Therapy RM 150.00 per visit x 2 visits per week x 13 weeks in 3 months = RM 3,750. 00. RM 150.00 per visit x 1 visit per week x13 weeks in 3 months 20 = RM 1,950,00.00. Total = RM 5,700.00 Cost of Occupational Therapy RM 150.00 per visit x 2 visits per week x 13 weeks in 3 months = RM 3,750.00. 25 RM 150.00 per visit x 1 visit per week x 13 weeks in 3 months = RM 1,950.00. Total = RM 5,700.00 30

The Plaintiff’s counsel submitted that the Defendants have aggravated the damage and harm suffered by the Plaintiff, by their conduct, namely:- 20 a. It took the Attorney General about nineteen (19) months after the Order for Pre-Action discovery was obtained, to disclose an External Inquiry Report to the Plaintiff. It was also highlighted to the Court that several internal inquiry reports were actually part of the appendices to the External Inquiry Report. The Plaintiff argued that 5 if all the reports were disclosed earlier, the case could have been resolved earlier and the cost incurred would be much lesser. b. The Plaintiff was never informed of the shortfall of her treatment despite the External Inquiry Committee had noted the same. It was 10 argued that the Defendants owed a duty of candour and good faith. Thus, the Defendants had aggravated the harm by hiding the truth from her. c. Despite the External Inquiry Report having noted the shortfall 15 treatment given to the Plaintiff, the Defendants had filed a Defence denying liability and it took the Defendants over a year after the commencement of proceedings to admit liability. d. Despite the Plaintiff had depressive symptoms (based on the 20 Defendants’ own expert witness (DW1)), the Plaintiff was not sent for psychiatric treatment and management. Further, based on DW1’s evidence, the Defendants should have referred the Plaintiff to a rehabilitation specialist for treatment. 25

The Plaintiff’s counsel had highlighted several precedents/cases where the Court had awarded aggravated damages in medical negligence cases. This Court note that, the aggravated damages awarded range is from RM 1,000,000.00 to RM 75,000.00. One particular case relied by the Plaintiff is the case of Ahmad Radhiq Arbee bin Ahmad Rejal Arbee (as a husband 30 and dependant of Sharifah Shalihah bt Sayed Abdullah, deceased) & Ors v Kerajaan Malaysia & Ors [2020] 20 MLJ 459 whereby the Court awarded aggravated damages due to the fact that the Defendants had 21 sought to defend an indefensible claim. The Defendants admitted liability only after the matter was set down for trial.

In the case of Ahmad Radhiq Arbee above, Gunalan Muniandy J, held amongst others, the way the litigation and trial are conducted can constitute 5 an aggravating factor. :- “Aggravating features can also include the way the litigation and trial are conducted. [25] Among the chief reasons why the Courts are inclined to award AD is when the Defendants refuse to admit liability in clear cases as in this instance and instead file their defence and cause the matter to be set down for trial and protracted. {26] The Plaintiffs in paras 7.6, 7.7, 7.8 and 7.9 of their first submission submitted the following factors to support and establish their claim for AD: [2020] 10 MLJ 459 at 469

the findings in the Defendant’s hospital internal inquiry report i.e. paras 6.2.1–6.3.2.5 which speaks for themselves;

the Defendant’s hospital failed to give a proper explanation with regards to the deceased’s condition prior to and after her death; and

neither did the Defendant contact the Plaintiffs to offer any explanation after the completion of their internal inquiry. [28] Having considered the overall evidence, the surrounding circumstances relating to the manner the deceased met her death and the parties’ contentions, I was satisfied 22 that the established factors for awarding AD had been fulfilled by the Plaintiffs on the present facts. (emphasis and underlining supplied)”

In Ahmad Radhiq Arbee ‘s case, the Court had awarded the sum of RM 300,000.00 as aggravated damages.

On the other hand, the Defendants submitted that the aggravated damages should not be awarded as there was no element of bad motive or ill conduct on the part the Defendants.

In the House of Lords case of Ashley v Chief Constable of Sussex 10 Police [2008] 2 WLR 975 at p 1006 Lord Neuberger of Abbotsbury observed :- “Aggravated damages are awarded for feelings of distress or outrage as a result of the particularly egregious way of circumstances in which the tort was committed, or in which its aftermath was subsequently handled by the Defendant.”.

Having considered the overall conducts of the Defendants in respect of the treatment given to the Plaintiff and also the Defendants’ conduct in handling the litigation in the present case as can be seen at paragraph 59 (a) to (d) above and having considered the legal authorities cited by both counsels for the Plaintiff and the Defendants, I am inclined to agree with the Plaintiff’s 20 contention that the Defendants have aggravated the damage and harm 23 suffered by the Plaintiff by their conduct. Thus, this Court award the sum of RM 80,000.00 as aggravated damages to the Plaintiff in this present case.

The relevant law and provision pertaining to the computation of interest to be awarded on damages is stated in Section 11 of the Civil Law Act 1956. Section 11 stipulates as follows :- “11. In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in this section -

shall authorize the giving of interest upon interest;

shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or

shall affect the damages recoverable for the dishonour of a bill of exchange.”. 10

As for the pre-judgment interest, this Court makes a reference to the Order 42 Rule 12 of the Rules of Court 2012 whereby :-

“Interest on judgment debts (O. 42, r. 12) Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment debt shall carry interest at such rate as the Chief Justice may from time to time determine or at such 24 other rate not exceeding the rate aforesaid as the Court determines, such interest to be calculated from the date of judgment until the judgment is satisfied.”.

Further, Practice Direction No 1 of 2012 also specifically states that :- ARAHAN AMALAN KETUA HAKIM NEGARA BIL 1 TAHUN 2012 ARAHAN PENENTUAN KADAR BUNGA, DI BAWAH KAEDAH-KAEDAH MAHKAMAH 2012 Bagi menjalankan kuasa-kuasa yang diberikan kepada saya di bawah Aturan 30, kaedah 6(2); Aturan 42, kaedah 12 Aturan 44, kaedah 18(1Xb) & (2); dan Aturan 44, kaedah 19, Kaedah-Kaedah Mahkamah 2012, saya dengan ini mengarahkan kadar bunga di bawah peruntukan-peruntukan di atas ditentukan pada kadar 5 % setahun. 5

This Court award an interest as follows :- i. Interest on Special Damages and Pre-Trial Damages - 4% 10 ii. Interest on General Damages for pain and suffering and loss of amenities of life and Aggravated Damages from the date of writ 12th December 2018 to date of judgment on liability - 8% iii. Interest on judgment sum from date of judgment - 5% Interest:

interest on special damages and pre-trial damages at the rate of 4% per annum from the elate of first incident (13th of 25 December 2015) up to the date of judgment (29th of January 2020);

(ii) interest on general damages in respect of pain and suffering and loss of amenities of life and aggravated damages at the 5 rate of 8% per annum from the date of service of the Writ (12th of December 2018) to the date of Judgment (29th of January 2020); and

(iii) interest on the judgment sum (including costs) at the rate of 10 5% per annum from the date of judgment (29th of January 2020) to the date of full payment.

In light of the aforesaid reasons, the damages and costs to be awarded to the Plaintiff are as follows :- 15 a. General Damages: i. Pain and suffering and loss of amenities of life - RM 260,000.00 20 b. Special Damages (calculated from 13 December 2015 to 10 December 2018, period of 36 months): i. Hospital and medical expenses – RM 947.00. 25 ii. Fees for medical reports – RM 40.00. iii Cost of obtaining and order for pre-action discovery - RM 7,420.00. iv. Value of care (at the rate of RM500 per month for 36 months) – RM 18,000.00. 30 c. Pre-Trial Damages (calculated from 10th of December 2018 to 10th of December 2020, a period of 24 months): 26 i. Value of care (at the rate of RM500 per month for 24 months) – RM 12,000.00. ii. Expectancy: Multiplier - 21 years d. Future General Damages: 5 i. Cost of engaging the services of a maid - RM 514,000.00. ii. Cost of Alternative Prosthesis and Replacement-RM 750,000.00. iii. Cost of Medical Consultation – RM 15,750.00. iv. Cost of Physiotherapy – RM 5,700.00. 10 v. Cost of Occupational Therapy – RM 5,700.00. vi. Aggravated Damages: RM 80,000/- Grand Total: RM 1,674,057.00 15 e. Costs: i. Getting up fee for liability and quantum proceedings – RM 90,000.00. ii. Out of pocket expenses - RM 11,040.60. 20 Dated 15th of October 2021 25 signed (KHAIRIL AZMI BIN HAJI MOHAMAD HASBIE) Judicial Commissioner High Court 30 Shah Alam 27 For the Plaintiffs : Encik Manmohan Singh Dhillon (Messrs PS Ranjan & Co.) For the Defendants : Puan Natrah Binti Mazman 5 (Unit Guaman Selangor Kamar Penasihat Undang-Undang Negeri Selangor) CASE REFERENCE 10

Schrump et al v Koot et al (1977) 82 DLR (3d) 553.

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 15 1; (2015) 3 CLJ 153.

Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610.

Shen & Sons Sdn Bhd v Jutawarna Development Sdn Bhd & Ors [2016] 7

Lee Yaw Long v Dr Ganapathi Pillai and 3 Others, Kuala Lumpur High Court Civil Suit No. 22-299-2003.

Punnithawatty a/p Kumarasamy and 2 others v Dr Norhayati binti Hamid and 7 others, Kuala Lumpur High Court Civil Suit No. 21NCVC-59-08/2013.

Sheela Christina Nair v Regency Specialist Hospital Sdn Bhd & Ors [2016]

Chai Beng Hock v Sabah Medical Centre Sdn Bhd & 2 Ors [2011] 2 AMR

28

Mohd Zulkarnain bin Mohamed Rokani & Ors v Pengarah Hospital Sultan Ismail Johor Bahru & Ors [2020] MLJU 1338.

Ong Ah Long v Dr S. Underwood [1983] 2 MLJ 324.

Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22.

Nur Syarafina Saariv. Kerajaan Malaysia & Ors (2019) 9 CLJ 246.

Donnelly v Joyce [1974] QB 454.

Fareed Reezal bin Arund v Pantai Medical Centre Sdn Bhd & 4 Ors (Kuala Lumpur High Court Civil Suit No. WA-22NCVC-33-01/2016).

Mariesosela a/p Anthony v. Kerajaan of Malaysia & 6 Ors (Kuala Lumpur 15 High Court Civil Suit No. WA-21NCVC-24-05/2019).

Ahmad Radhiq Arbee bin Ahmad Rejal Arbee (as a husband and dependant of Sharifah Shalihah bt Sayed Abdullah, deceased) & Ors v Kerajaan Malaysia & Ors [2020] 20 MLJ 459.

Ashley v Chief Constable of Sussex Police [2008] 2 WLR 975 at p 1006. STATUTE 25

Section 11 of the Civil Law Act 1956.

Order 42 Rule 12 of the Rules of Court 2012.

Practice Direction No 1 of 2012.