Nurul Iman binti Abu Mansor v 1. ) Gleneagles Hospital (Kuala Lumpur) Sdn Bhd (WA-22NCvC-457-08/2022)

Gleneagles Hospital Kuala Lumpur Sdn. Bhd. (No. Syarikat: 198498-T)

Dato’ Sri Dr Zulkharnain Ismail ...Defendan-Defendan GROUNDS OF JUDGMENT (After full trial) INTRODUCTION [1] Nurul Iman (Plaintiff) is suing the 1st Defendant, Gleneagles Hospital Kuala Lumpur Sdn. Bhd. (D1) for breach of non-delegable duty of care and vicariously liable for the negligence of the 2nd Defendant (D2) who had negligently injured her right median nerve during an operation 23/09/2024 11:50:02 WA-22NCvC-457-08/2022 Kand. 102 S/N gz8815g3keii9kDBrHJQ and had delayed in providing necessary surgical and medical treatment to treat the complications of the median nerve injury. [2] The Plaintiff claims general damages, special damages, interest and costs in respect of the injuries and losses suffered. [3] At the end of the trial, this Court allowed the Plaintiff's claim as deliberated. BRIEF FACTS [4] The brief facts were gathered from the pleadings and parties’ submissions. [5] The Plaintiff was born on 26.11.2001 and at the time of the alleged negligence, was 17 years old and a student. [6] D1 is a company incorporated in Malaysia which owns and manages a private hospital known as ‘Gleneagles Hospital Kuala Lumpur’. [7] D2 is a Consultant Orthopaedic and Trauma Surgeon practicing at D1. S/N gz8815g3keii9kDBrHJQ [8] The Plaintiff was a patient of the Defendants. [9] The Plaintiff suffered pain and persistent numbness of her right hand since before December 2017, and was diagnosed to have right carpal tunnel syndrome. [10] The Plaintiff was seen by D2 at D1 and was advised to undergo surgery to address her carpal tunnel syndrome so as to improve the function of her right hand. D2 had advised the Plaintiff that the surgery would be a minor surgery. [11] D2 undertook the surgery on the Plaintiff at D1 on or around January 2018 (First Surgery). Following the First Surgery, the Plaintiff experienced more pain at her right hand than before the surgery. [12] The Plaintiff continued to experience this pain during various follow-up visits following the First Surgery. D2 advised the Plaintiff to undergo a second surgery, which was carried out on or around June 2018 (Second Surgery). [13] Following the Second Surgery, the Plaintiff experienced even more pain than after the First Surgery, and did not have any feeling in three (3) S/N gz8815g3keii9kDBrHJQ of her fingers. [14] The Plaintiff underwent follow-up and weekly physiotherapy at D1 for about two months, but still experienced the pain in her right hand. The Plaintiff subsequently went to Subang Jaya Medical Centre and was seen by Dr Lau Tze Hau, who carried out tests on the Plaintiff who later informed the Plaintiff that the problems she faced in respect of her three

fingers were as a result of problems with her median nerve, and advised corrective surgery. [15] The Plaintiff subsequently underwent corrective surgery which was carried out on 8 April 2019 by Dr Jamari bin Sapuan, a hand and micro surgeon at Universiti Kebangsaan Malaysia Specialist Centre (UKMSC). [16] Following the corrective surgery, Dr Jamari advised the Plaintiff that he discovered that around five (5) centimetres of the Plaintiff's median nerve had been resected. [17] Dr Jamari advised further corrective surgery, which was undertaken on 16 April 2019. During this surgery, a left sural graft was used as a cable graft to repair the five (5) centimetres loss of the median nerve. [18] Another corrective surgery was undertaken by Dr Jamari in March S/N gz8815g3keii9kDBrHJQ

[19] Notwithstanding the corrective surgeries, the Plaintiff continues to suffer from median nerve palsy and is unable to properly utilise her right hand to carry out activities of daily living. [20] The Plaintiff avers that her median nerve had been resected during surgery carried out by D2 and claims relief against the Defendants for negligence and breach of contractual, statutory and other duties, including of candour and good faith and to act in the best interests of the Plaintiff, which caused or materially contributed to the loss and damage suffered by the Plaintiff. [21] Apart from the negligence contention, the Plaintiff contended that the Defendants had failed to obtain her informed consent and that she was not advised of the risks and complications of the carpal tunnel release operation. [22] The Plaintiff had also contended that D2 had negligently injured her right median nerve during the operation and had delayed in providing necessary surgical and medical treatment to treat the complications and sequalae of the median nerve injury. S/N gz8815g3keii9kDBrHJQ [23] As a result, the Plaintiff suffered a serious and irreversible nerve injury to her right hand and will need lifelong physiotherapy, pain relief medicines, psychiatric treatment and assistance in daily living whenever she needs to use her right hand. [24] D1 denies all particulars of breach of duties and/or negligence. [25] D1 had also filed a Notice for Contribution and Indemnity (Enclosure 9) against D2 in the event D1 is found liable as a result of D2’s negligence. D1 seeks a contribution and/or indemnity to the full extent against D2 pursuant to common law, contract and/or the provisions under the Civil Law Act 1956. [26] D2 denies the Plaintiff’s claim. In his defence, he stated that he has acted in the best interest of his patients including the Plaintiff and has provided sufficient information and advice on the condition of the Plaintiff. [27] During the trial, the Plaintiff had demonstrated to the Court the difficulties that she faced in using her right hand. [28] In gist, the Plaintiff's case is as follows-S/N gz8815g3keii9kDBrHJQ

The Plaintiff had at first complained of pain in her left hand.

D2 had attended to her and advised her to undergo surgical removal of ganglions in her left hand. The Plaintiff has no complaint regarding that operation.

The Plaintiff had on 19 January 2018 consulted D2 and complained of pain, swelling and numbness over her right wrist.

D2 advised her that she had a ganglion cyst and advised her to undergo surgical removal of the ganglion cyst and undergo “prophylactic carpal tunnel release”.

The Plaintiff was, however, advised that she had developed carpal tunnel syndrome and not that she was at risk of developing carpal tunnel syndrome.

A prophylactic operation would have been necessary only if she was at risk of developing the syndrome. S/N gz8815g3keii9kDBrHJQ

The consent taken for the operation was for “carpal tunnel release and excise of ganglion @ right hand/wrist”.

D2’s pleaded case that he had undertaken prophylactic carpal tunnel release was inconsistent with his evidence at trial that the Plaintiff had suffered carpal tunnel syndrome.

Complications and risks of the operation were not mentioned in the consent form and were not recorded in the medical records. THE TRIAL [29] During trial, parties called the following witnesses-PW1 Dr Mohamed Faizal bin Hj Sikkandar (‘Dr Faizal’) Plaintiff’s Expert witness on liability PW2 Dr Lydia (Consultant Rehabilitation Physician) Plaintiff’s Expert witness on quantum PW3 Dr Siti Nur Zahirah Jailani (Medical Officer) Subpoena witness of fact PW4 Abu Mansor (Plaintiff’s father) Witness of fact PW5 Prof. Dr Jamari Subpoena witness of fact PW6 Nurul Iman Plaintiff DW1 Dato’ Dr Sivananthan a/l Shanmugam (Consultant Orthopaedic & Trauma Surgeon) D2’s Expert Witness on liability and quantum DW2 Dato’ Sri Zulkharnain Ismail D2 DW3 Dr Sundar Raj a/l Silvaraja D1’s representative S/N gz8815g3keii9kDBrHJQ [30] There were four (4) expert reports filed by way of an affidavit under Order 40A of the Rules of Court 2012 (ROC 2012) as follows-Plaintiff’s Expert Report

Expert Report on liability of Dr. Mohamed Faizal bin

(ii) Expert Report on quantum of Datin Dr. Lydia Abdul Latif; D2’s Expert Reports

(iii) Expert Report on liability of Dato’ Dr. K.S. Sivananthan;

(iv) Expert Report on quantum of Dato’ Dr. K.S. Sivananthan. ISSUES [31] This Court finds that the central issue in this case is whether the Defendants had breached their duty of care/standard of care including breach of non-delegable duty of care and whether such breach had caused damage and injuries as alleged by the Plaintiff. ANALYSIS AND FINDINGS LIABILITY S/N gz8815g3keii9kDBrHJQ Burden of proof [32] It is trite that the onus lies on the Plaintiff to prove the elements of negligence in order to succeed in her claim against the Defendants pursuant to sections 101 and 102 of the Evidence Act 1950. (See Datuk Mohd Ali bin Hj Abdul Majid & Anor v. Public Bank Berhad [2014] 4 MLRA 397; [2014] 4 MLJ 465; [2014] 6 CLJ 269; [2014] 4 AMR 301 and Tenaga Nasional Berhad (Formerly Lembaga Letrik Negara Tanah Melayu) v. Perwaja Steel Sdn Bhd (Formerly Perwaja Terengganu Sdn Bhd) [1995] 3 MLRH 196; [1995] 4 MLJ 673; [1995] 4 CLJ 670). [33] In a claim for tort of negligence, the Plaintiff must prove that the Defendants owe a duty of care, that duty was breached and caused damage to the Plaintiff. The Court of Appeal case of Shalini Kanagaratnam v. Pusat Perubatan Universiti Malaya & Anor [2016] 5 MLRA 67; [2016] 3 MLJ 742; [2016] 6 CLJ 225; [2016] 3 AMR 625, enunciated the four (4) elements that a Plaintiff has to prove in cases of medical negligence- "[9] In cases of professional negligence and/or medical negligence, the plaintiff has to prove four elements. They are: (i) duty of care; (ii) breach of standard of care; (iii) breach of duty of care; (iv) caused damages. In consequence, the plaintiff has to lead evidence to show the standard of care has been breached. The doctrine of res ipsa S/N gz8815g3keii9kDBrHJQ loquitur will not ordinarily apply as the plaintiff will have to discharge the legal burden and only after the legal burden has been discharged, the defendant has to satisfy that legal duty was not breached." [34] Further, in the case of Muthu A/L Subramaniam v. Dr Wan Hazmy Che Hon [2018] MLJU 1567; [2018] MLRHU 1291 Justice Abu Bakar Jais (now FCJ) held that the burden to prove negligence lies on the plaintiff and it is not the obligation of the Defendant to disprove the allegations of negligence and held- "[34] It is trite that the burden of proof in cases of medical negligence such as this is on the Plaintiff. It is the Plaintiff's burden to prove negligence against the FD on the basis that what was done was what a reasonably competent practitioner skilled in that particular act would or would not have done. The FD has no obligation to disprove the allegations of negligence in the statement of claim. (See the cases Wu Siew Wong v. Pulau Pinang Clinic Sdn Bhd & Anor [2010] 1 MLRH 956; [2011] 3 MLJ 506; [2011] 1 CLJ 229 Mathew Scott Oakley & 2 Ors v. Dr. George Varughese & Anor [2009] 5 MLRH 93; [2020] 10 CLJ 322 and Payremalu Veerappan v. Dr Amarjeet Kaur & Ors [2001] 2 MLRH 101; [2001] 3 MLJ 725; [2001] 4 CLJ 380).” [35] Thus, the burden lies on the Plaintiff to prove on balance of probabilities, that the Defendants or any of the Defendants had committed the act of negligence. It must also be proven by the Plaintiff the causation link between the act of negligence and the injuries suffered by the Plaintiff. S/N gz8815g3keii9kDBrHJQ Liability of D1 [36] The core business of D1 can only be rendered through healthcare professionals such as D2, the medical officer and the nurses. In the instant Suit, under such circumstances, D1 owes a duty of care to the clients or patients with whom D1 accepts and agrees to provide healthcare. [37] In Regulation 11(4) of the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 (P.U.(A) 138/2006) under Part III - Organization And Management Of Private Healthcare Facilities Or Services, a doctor is part of the organisation of the hospital. Regulation 11 provides-Regulation 11. Plan of organization.

All private healthcare facilities or services shall have a plan of organization, which shall include an organizational chart that shall be exhibited in a conspicuous part of the private healthcare facilities or services.

The plan of organization shall be in writing and made available upon inspection.

The plan of organization shall specify the authority, responsibility, and functions of each category of staff.

All registered medical practitioners or registered dental practitioners privileged to practise in the private healthcare facilities or services shall be considered as part of the organization.

Any person who contravenes sub-regulation (1) commits an offence. (Emphasis Added) S/N gz8815g3keii9kDBrHJQ [38] In Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685, the Federal Court had rejected the argument that private hospitals are mere providers of facilities and not medical treatment. The Federal Court held- “[59] We were also referred to reg 14(1) of the Regulations, which provides that: "A patient admitted in a private healthcare facility or service shall be under:

the professional care or treatment of a registered medical practitioner while a patient admitted for dental care or treatment shall be under the professional care or treatment of a registered dental practitioner; and

the direct care or treatment of a healthcare professional." [60] This is preceded by reg 11(4) of the Regulations, which reads: "All registered medical practitioners or registered dental practitioners privileged to practise in the private healthcare facilities or services shall be considered as part of the organization." [61] Read in their entirety, we do not consider that the relevant legislation warrants the interpretation that private hospitals are mere providers of facilities and not medical treatment. On the contrary, the legislative scheme clearly envisages that the function of private hospitals includes generally the 'treatment and care of persons who require medical treatment or suffer from any disease', and considers the services of medical practitioners as part of that function. The notion that the duty of a hospital is confined only to its facilities and staff selection has long been rejected in the common law. Such a notion is also incongruent with societal expectations of private hospitals as healthcare service providers; most patients do not perceive hospitals as providers of all the utilities and backup services except medical treatment. Adopting Lord Greene's formulation, it is precisely medical treatment that patients expect when they knock on the door of the hospital.” S/N gz8815g3keii9kDBrHJQ [39] Regarding the non-delegable duty of care of a person providing services, whether as an employer or otherwise, in Woodland v Essex County Council [2014] 1 All ER 482, it was held- “[23] Recognising the principle of non-delegable duty as expounded by Lord Greene in Gold v. Essex County Council [1942] 2 KB 293 and Denning LJ in Cassidy v. Ministry of Health (Dr. Fahrni, Third Party) [1951] 2 KB 343, Lord Sumption identified five defining features of the second category in a passage reproduced in full below: If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features:

The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself,

which places the claimant in the actual custody, charge or care of the defendant, and

(ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of school children. S/N gz8815g3keii9kDBrHJQ

The claimant has no control over how the defendant chooses to perform those obligations, ie whether personally or through employees or through third parties.

The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him. (emphasis added) [40] Woodland (supra) was also referred by the Federal Court in Siow

Ching Yee v. Columbia Asia Sdn Bhd [2024] 3 MLJ 66; [2024] 3 MLRA This Court finds that the five defining features in Woodland are fulfilled in this Suit-

The first factor “patient” must include anyone receiving treatment. The Plaintiff is receiving treatment and a patient.

The second factor an antecedent relationship between the Plaintiff and D1.

the third and fourth factor the Plaintiff had no control over how D1 chose to perform its obligations, whether personally or through employees or third parties and in this case through D2. D1 as a provider of S/N gz8815g3keii9kDBrHJQ healthcare for the performance of its duty of care, had delegated to D2, who in turn was negligent in the performance of what was his, and also essentially D1’s, duty.

the fifth factor D1 was negligent in the performance of its function of rendering proper emergency and treatment of the Plaintiff [41] With all the five factors satisfied, it is clear that D1 had assumed a non-delegable duty of care that it owed personally to the Plaintiff, a patient that was admitted for its services. The Plaintiff is indeed in a vulnerable position and is totally reliant on the Defendants for her care and treatment. Liability of D2 [42] The expert evidence given by D2’s witness, shown that the median nerve had been cut during the operation undertaken by D2 on 23 January 2018. [43] The Plaintiff contended that D2 pleaded “prophylactic carpal tunnel release” but had advised the Plaintiff and her father that she had developed carpal tunnel syndrome and needed an operation to treat the same. S/N gz8815g3keii9kDBrHJQ [44] “Prophylactic” means “Pertaining to the prevention of the development of a disease”. In this context it means that the Plaintiff had yet to develop carpal tunnel syndrome (Butterworth Medical Dictionary, Second Edition, 1978). No record of advised risk/ Informed Consent [45] In Montgomery (Appellant) v Lanarkshire Health Board [2015] 2 All ER 1031 it was held that “The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” [46] Montgomery (supra) was also applied by the Federal Court in Zulhasnimar binti Hasan Basri and Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438. [47] D2 had breached his duty of care to provide advice and information when he had failed to advise the Plaintiff and her father of the risk of suffering a median nerve injury. S/N gz8815g3keii9kDBrHJQ [48] The Plaintiff contended that the complications and risks of the operation were not mentioned in the consent form and were not recorded anywhere in the medical records. Accordingly, the Plaintiff and her father had testified that they were told that it was a simple operation and that no risks were mentioned to them. [49] In terms of the Expert evidence, this Court is inclined to the evidence given by Prof Dr Jamari, supported by Dr Faizal, in regards to the findings of Prof Dr Jamari that “part of the nerve was cut” (total transection of the median nerve with a 5cm nerve gap). [50] Applying Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, this Court is of the view that the expert opinion given by Prof Dr Jamari is reasonable, respectable and responsible and stands up to logical analysis. [51] On balance of probabilities, this Court finds that the median nerve had been negligently cut during the operation undertaken on 23 January 2018 and that there was a delay in identifying the cut injury and providing corrective treatment. It is indisputable that the median nerve cut injury was caused or materially contributed by the negligence of the Defendants. S/N gz8815g3keii9kDBrHJQ [52] This can be seen from the medical evidence, including the expert evidence of D2, which show that the median nerve had been cut during the operation undertaken by the 2nd Defendant on 23 January 2018. [53] Furthermore, D2’s expert, had properly conceded, that weight should be given to the findings made by Professor Dr Jamari bin Sapuan when he operated on the Plaintiff on 8 April 2019. [54] Apart from negligence and breach of contract, there is the tort of breach of statutory duty, a duty owed directly by the Defendants. Statutory duties regarding safety created for, instance, in such fields as employment and now in healthcare, exist for the public benefit (Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor [1993] 2 MLJ 234, SC). [55] In terms of indemnity or Notice Claiming Contribution (Enclosure 9), this Court is guided by the case of Siow Ching Yee (supra). Thus, Enclosure 9 is dismissed accordingly. In Siow Ching Yee (supra), the Federal Court held- “[94] Finally, a note on indemnity. The respondent has invited this Court to order that the second defendant indemnify the respondent in the event that it is found liable. I do not find this to be right or available in law. S/N gz8815g3keii9kDBrHJQ [95] First, the 2nd defendant is not a party to this appeal. More importantly, it flies in the face of the earlier findings that the respondent owes a non-delegable duty of care and it remains liable regardless to whom it may have employed or engaged to carry out that duty of care. The principle imposes a personal liability on the respondent, over and above that against the tortfeasor.”. (Emphasis Added) Conclusion [56] Accordingly, on balance of probabilities, this Court finds that the Plaintiff has succeeded to prove her case. This Court is satisfied that the Defendants are liable based on the above deliberations. Consequently, Enclosure 9 is also dismissed with cost. QUANTUM [57] The Plaintiff is entitled to recover the damages reasonably incurred provided that it can be shown that the loss and damage was either caused or materially contributed by the negligence of the Defendants and each of them (See Wu Siew Ying t/a Fuh Lin Bud-Grafting Centre v Gunung Tunggal Quarry & Construction Sdn. Bhd. & Anor [2011] 2 MLJ 1.) [58] It is indisputable that the median nerve cut injury was caused or materially contributed by the negligence of the Defendants. S/N gz8815g3keii9kDBrHJQ [59] The Plaintiff was 17 years old when she suffered catastrophic injuries to her right hand. Since 2017, the Plaintiff has had to undergo a total of eight (8) operations on her right hand, including two (2) at D1 and six (6) further operations at UKMSC. [60] The trauma and disabilities had also caused the Plaintiff to suffer psychiatric injury. She had to engage in self-help and had sought treatment at UKMSC where Professor Dr Jamari had diagnosed the cut injury to her right median nerve and undertook surgical and medical treatment over a period of 4 years and 2 months. [61] She is now 22 years old. As a result of the negligence of the Defendants, the Plaintiff is unable to use her right hand which is her dominant right hand. She has difficulties in doing activities requiring right hand and bimanual hand function. She needs assistance in her daily living activities. [62] Therefore, the Plaintiff seeks the sum of RM175,000 as general damages for pain and suffering and loss of amenities of life including for the additional six (6) operations that she had to undergo over a period of 4 years and 2 months, general damages for psychiatric injuries of S/N gz8815g3keii9kDBrHJQ RM75,000 and aggravated damages of RM300,000. Hence, the Plaintiff submitted the following cases-

Aznor Hassan bin Zakariah v Dr Khairul Nizam bin Rozali & Anor in Kuala Lumpur High Court Civil Suit No. WA-22NCVC-124- 03/2018: the High Court awarded the sum of RM 250,000 as general damages for pain and suffering and loss of amenities of life the negligence of the orthopaedic surgeon defendant in delaying the initial surgery and the insufficient treatment undertaken to clear the infection led to the plaintiff suffering osteomyelitis at his fractured right leg. The plaintiff underwent 6 surgical procedures before making a reasonable recovery.

Devarani a/p Vijayan v. Dr. Daniel Foo Yong Chiang dan satu lagi [2017] MLJU 2444: the High Court awarded the sum of RM 300,000- 00 as general damages for pain and suffering and loss of amenities of life to a young plaintiff who had suffered infection to her arm following a negligent surgery to correct a fracture at her elbow. The prolonged infection resulted in a deformity of her elbow.

Hasniyati Bt Hassan & Anor v Kerajaan Malaysia [2022] 10 MLJ 469: the High Court awarded the sum of RM 350,000 as general damages for pain and suffering and loss of amenities of life to a 4 year old plaintiff who had suffered auto-amputation of his right arm (above the elbow) at day 52 of life. The plaintiff who was born prematurely at 27 weeks of gestation required intravenous fluids in the NICU. The admitted negligence of the nurses in failing to remove the IV line which was blocked, led to the arm becoming gangrenous. Aggravated Damages S/N gz8815g3keii9kDBrHJQ [63] In Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784, the Court of Appeal held- "Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest or personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant (emphasis supplied)." Future general damages [64] The award for future general damages takes into account the pain and suffering endured by the Plaintiff which she will continue to suffer as a result of her injuries for the rest of her life including the loss of the amenities of life which refers to the Plaintiff’s inability to lead a normal lifestyle and to undertake the simplest of things in life. [65] In Hawkins v. New Mendip Engineering, Ltd. [1966] 3 All E.R. 228 (CA), it was held- “The problem in this case is to forecast what is likely to happen in the future. For it has now transpired as the result of medical examination, and as a result of the analysis by doctors of certain symptoms which this young man subsequently developed, that he is at present suffering from what is called temporal lobe epilepsy. That is, as I understand it, a relatively minor form of epilepsy, but there is a risk (and a serious S/N gz8815g3keii9kDBrHJQ risk) that at some time in the future, necessarily an uncertain future time, this young man may develop major epilepsy. If he did so, of course, it would necessarily alter the whole tenor of his life. It might affect his ability to earn his living, at any rate in doing any such job as he is doing at present, and inevitably it would grievously affect his social and domestic life and everything that goes to make up the amenities of life. The doctors in their evidence were unanimously of the view that in a case of this sort it is virtually impossible to tell within the first five years of the accident what the future is likely to be. The position, therefore, was that the learned judge had the difficult, and one might say the almost impossible, task of putting into pounds, shillings and pence what might be the effect of a wholly uncertain future. That is the result of our procedure, which requires the court to award a sum of damages now, once-and-for-all, which is sufficient to take care of likely future possibilities. It was in those circumstances that the learned judge came to award this very considerable sum of £8,000 for general damages (emphasis supplied).” … …I agree, and I agree with the reasoning of Willmer L.J.’s judgment. In my opinion, if the learned judge had awarded any appreciably smaller sum in this case, he would have been taking an unjustifiable gamble with the future of this young man (emphasis supplied).” [66] Hawkins (supra) was also referred to in Inas Faiqa bt Mohd Helmi v Government of Malaysia & Ors [2016] 2 MLJ 1; [2016] 2 CLJ 885 where the Federal Court held- “with the above proposition, we are of the view that the standard of proof with regard to the assessment of future loss or damage is on the balance of probabilities, but with a lower degree of certainty as to the occurrence of such loss or damage in the future. From the authorities, one can say that such a lower degree to be attached is best termed by the S/N gz8815g3keii9kDBrHJQ word “possibility”, “chance”, “risk”, “danger” or “likelihood” of the future damage is still, in our opinion, on a balance of probabilities (emphasis supplied).” [67] Therefore, the standard of proof of future damage is on the balance of probabilities, but with a lower degree of certainty which can be described as a ‘possibility’, ‘chance’, ‘risk’, ‘danger’ or ‘likelihood’. Cost of adaptive aids [68] Based on the facts and evidence, the Plaintiff is unable to use her right hand to write, eat, cook and dress. She had also given up on her favourite hobbies such as playing the guitar and badminton due to her injuries. [69] Dr Lydia (PW2) had recommended certain adaptive aids to assist the Plaintiff with her daily activities. These items will aid the Plaintiff with her right-hand motor function. She is unable to grip and optimise her right hand as explained by Dr Lydia. Hospital and Medical Expenses [70] The hospital and medical expenses were paid by the Plaintiff’s father’s employer. Dr Kok Choong Seng & Anor v Soo Cheng Lin and S/N gz8815g3keii9kDBrHJQ another appeal [2018] 1 MLJ 685, had decided that the medical expenses paid by a third party, for example, an insurer or an employer, can be recovered by the Plaintiff. [71] Furthermore, section 28A (1)(a) of the Civil Law Act 1956 provides- “28A. (1) In assessing damages recoverable in respect of personal injury which does not result in death, there shall not be taken into account: -

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;

any pension or gratuity, which has been or will or may be paid as a result of the personal injury; or

any sum which has been or will or may be paid under any written law relating to the payment of any benefit or compensation whatsoever in respect of the personal injury.” Conclusion [72] A summary of the Award of this Court is as reflected in the table below-ANNEXURE 1 TABLE OF DAMAGES, COSTS AND INTERESTS AWARDED Item Award of the Court (RM) General Damages S/N gz8815g3keii9kDBrHJQ General Damages for pain and suffering and loss of amenities of life; 175,000-00 General Damages for psychiatric injuries; 75,000-00 Aggravated Damages; 300,000-00 Sub-Total 550,000-00 Life Expectancy of the Plaintiff 74 years old Multiplier 52 Future General Damages the cost of splints; Global sum of 2,200-00 the cost of adaptive aids, namely; ergonomic keyboards; 4,400-00 ergonomic mouse; 3,300-00 writing aids; 1,800-00 jar opener for weak hand; 1,600-00 semilunar knife; 1,600-00 enlarge holder-tubing; and 1,600-00 pump container 1,600-00 the cost of medicines, investigations and consultations; Pregablin; 93,600-00 Paracetamol; 18,720-00 medical consultation; and 11,340-00 (RM105-00 x 4 times a year for the first 2 years, then RM105-00 for twice a year for 50 years) medical investigation 9,720-00 S/N gz8815g3keii9kDBrHJQ (RM180-00 every 6 months for 2 years then as needed) the cost of rehabilitation; physiotherapy; 11,520-00 (RM 160 per visit, 24 visits a year for 3 years) occupational therapy; and 23,040-00 (RM 160 per visit, 48 visits a year for 3 years) clinical psychologist consultation 1,080-00 (RM180 per visit x 6 sessions) the cost of future travel expenses; 8,400-00 (RM140-00 per month for 5 years) the value of care and services provided by family members 187,200-00 (RM 300-00 per month for 52 years) the cost of future tendon transfer surgery 30,000-00 Sub-Total 412,720-00 Hospital and medical expenses; 99,253-93 Travel expenses; 5,000-00 (RM140-00 per month for 3 years) the cost of pre-action discovery; 10,000-00 S/N gz8815g3keii9kDBrHJQ the loss of earning capacity; 20,000-00 Sub-Total 134,253-93 Travel expenses; 1,000-00 Value of care provided by family members; 9,000-00 (RM500 per month) Sub-Total 10,000-00 Grand-Total 1,106,973-93 Costs out-of-pocket expenses; 22,282-15 party and party costs; 150,000-00 Interest interest on special damages from the date of incident, 23 January 2018 to the date of judgment; 4% interest on pre-trial damages, general damages for pain and suffering and loss of amenities of life and psychiatric injuries and aggravated damages from the date of service of writ, 22 August 2022 to the date of judgment; and 5% interest on the judgment sum including costs and pre-judgment interest, from the date of judgment to the date of full payment. 5% -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court NCVC 1 Kuala Lumpur Court. Dated: 23 September 2024 S/N gz8815g3keii9kDBrHJQ COUNSELS FOR THE PLAINTIFF Messrs. P S Ranjan & Co. 17th Floor, Wisma Lee Rubber No. 1, Jalan Melaka 50100 Kuala Lumpur. FOR THE DEFENDANTS 1ST DEFENDANT Messrs. Chan Ban Eng & Co No. 7, Church Street Ghaut 10300 Pulau Pinang. 2ND DEFENDANT Messrs. Law Chambers of Vin Sa & Ian Unit 13-07 & 08, Oval Damansara Jalan Damansara, Taman Tun Dr Ismail 60000 Wilayah Persekutuan Kuala Lumpur. S/N gz8815g3keii9kDBrHJQ