Pusat Pakar Tawakal Sdn. Bhd. . v Datin Nor Rizam Bt Mohd Kenali (Menyaman Sebagai Pentadbir Estet Dato' Ir Zainudin Bin A Kadir) (W-02(NCvC)(W)-903-05/2024)

DR ZULKIFLI BIN MOHAMED HARIS HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELATE JURISDICTION) CIVIL APPEAL NO: W-02(NCvC)(W)-932-06/2024

PUSAT PAKAR TAWAKAL SDN BHD [COMPANY NO:116066-D]

DR ZULKIFLI BIN MOHAMED HARIS HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELATE JURISDICTION) CIVIL APPEAL NO: W-02(NCvC)(W)-933-06/2024

PUSAT PAKAR TAWAKAL SDN BHD [COMPANY NO:116066-D]

DATO' DR HAJI MOHD SOLAHUDDIN BIN MOHD KENALI [Dalam Perkara Guaman No. WA22NCVC-606-08/2019 Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Antara Datin Nor Rizam Bt Abdul Wahab (menyaman sebagai pentadbir estet Dato' Ir Zainudin bin A Kadir, Si Mati) ... Plaintif Dan

Pusat Tawakal Sdn Bhd [No. Syarikat: 116066-D]

Dato' Dr Haji Mohd Solahuddin bin Mohd Kenali

Dr Zulkifli bin Mohamed Haris

Dr Sappany a/l Arnachalam ... Defendan-Defendan] CORAM: RAVINTHRAN N. PARAMAGURU AZHAHARI KAMAL BIN RAMLI AHMAD FAIRUZ BIN ZAINOL ABIDIN GROUNDS OF DECISION Introduction

The patient, the late Dato Ir Zainuddin bin A Kadir (the patient), sought treatment at Pusat Rawatan Tawakal Sdn Bhd for his sinusitis, deviated nasal septum, and enlarged turbinates. He underwent an elective bilateral functional endoscopic sinus operation with septoplasty and turbinoplasty for the treatment. The operation was conducted at Pusat Rawatan Tawakal Sdn Bhd. Due to some post-surgery complications, he suffered permanent brain damage on 26.2.2016. Unfortunately, he died on 20.10.2021

The patient filed a writ action for negligence against Pusat Rawatan Tawakal Sdn Bhd and two (2) of its doctors. After a full trial, the learned HCJ found them liable and entered judgment both for liability and damages.

Dissatisfied with the decision, all three defendants appealed.

There are three (3) appeals before us, namely:

(i) Appeal no W-02(NCvC) (W)-903-05/2024 (Appeal R10/903) This is an appeal by Pusat Rawatan Tawakal Sdn Bhd (the first defendant in the High Court) against the whole of the decision of the learned High Court Judge dated 3.5.2024 in finding the hospital liable in a medical negligence suit brought by the patient against the hospital and two doctors. In appeal R10/903, the plaintiff also filed a cross-appeal on the issue of the quantum of damages.

In this judgment, the parties will be referred to as they were in the court below. Facts of the case.

The facts of the case have been neatly summarised by the learned HCJ in his grounds of decision. We would adopt them with some minor modifications.

The patient, a former CEO of Prolintas (one of the highway operators in Malaysia), had long suffered from vertigo, fever, and flu since 2012. He was treated conservatively by his physician, Dr Abdul Shukor, but the symptom persisted.

In February 2016, he was referred to Dato Dr Haji Mohamamd Solahuddin bin Mohd Kenali (the $ 2^{\mathrm{nd}} $ defendant), an ENT specialist who advised him to undergo bilateral functional endoscopic sinus surgery with septoplasty and turbinoplasty.

The patient consented to the surgery, as seen in the consent form executed by him dated 24.2.2016. In the said form, it appears that the patient was advised as to the nature of the effects of the operation. The patient had also agreed to any further or alternative operative measures that may be found necessary during the operation. This includes any local or general anaesthesia necessary to be utilized for the said operation.

The patient had also executed a consent form for the anaesthesia drugs to be administered during the operation. The risks and effects of the said drugs were recorded to have been explained and understood by him, as seen in the consent form dated 25.2.2016. The explanation was made by Dr Sappany a/l Amachalam.

However, the action against Dr Sappany a/l Amachalam was discontinued by the patient before the trial commenced. Dr Sappany a/l Amachalam did not act as the anaesthesiologist, and he was replaced by Dr Zulkifli bin Mohd Haris (the third defendant).

The surgery was performed on 26.2.2016 from 5.45 pm to 8.05 pm.

After surgery, the patient was taken to the recovery room. Despite still being drowsy and recording a pain score of 8/10, he was discharged to the ward about 30 minutes after reversal agents were given, instead of being kept under longer observation or monitored in the ICU/HDU.

At about 9.30 pm, while in the ward, the patient developed cyanosis (bluish skin due to low oxygen). His son, who is also a doctor, alerted the Hospital's staff. Code Blue (indicating a critical, life-threatening emergency, most commonly a patient experiencing cardiac or respiratory arrest) was activated.

The second and third defendants attempted to resuscitate the patient. It was subsequently discovered that the second defendant had wrongly intubated the patient. Even though the patient was eventually intubated correctly, he had already sustained brain damage due to oxygen deprivation. He was then transferred to the ICU.

Subsequent CT scan confirmed that the patient suffered from hypoxic ischemic encephalopathy. He underwent tracheostomy and tube feeding procedures. He was discharged on 11.4.2016 in a vegetative state.

On 26.8.2019, the patient (through his wife and litigation representative) commenced the writ action against the three defendants, claiming premature discharge, failure to monitor, and lack of proper emergency facilities.

The patient passed away on 20.10.2021, when the trial was still on going. The plaintiff i.e. the wife of the patient obtained a letter of administration for his estate, a substitution order dated 18.5.2022 and subsequently amended the writ and statement of claim.

On 3.5.2024 the learned HCJ delivered his decision. Summary of the decision of the learned HCJ

The learned HCJ held that although the second defendant's notes are sparse, the evidence shows that he did inform the patient about the conservative treatment options and the risks of the surgery. This was further confirmed by the consent form, which stated that the risk of the surgery was explained. Hence, the learned HCJ found that there was no breach of duty in pre-operative advice or in the conduct of the surgery itself.

From the evidence, the learned HCJ opined that the patient was discharged from the recovery room only 30 minutes after the reversal agent was administered, despite the patient's complaint of drowsiness and a pain score of 8/10. There was no discussion between the nurses and the second or third defendant on this score. Be that as it may, the third defendant admitted during cross-examination that the nurses did not explain to him about the patient's score. In this regard, the expert witnesses of the plaintiff (Dr Chan and Dr Jeevanan) had confirmed that a longer observation period (of at least one (1) hour) was necessary, given the risks of anaesthesia in airway surgery. Hence, it was the finding of the learned HCJ that the decision to prematurely discharge the patient was negligent. In this respect, both the first and second defendants had failed to monitor the patient, causing his asphyxiation.

The learned HCJ also found that during resuscitation, the second defendant had failed to intubate the patient correctly, inserting the tube into the oesophagus instead of into the trachea. In this regard, it was also the finding of the learned HCJ that the hospital ward also lacked an oxygen adapter for the ambu bag (a handheld device used in emergency and clinical settings to provide positive-pressure ventilation to patients with inadequate or no breathing), thereby delaying proper oxygenation. According to the learned HCJ, even though the third defendant had eventually intubated the patient successfully, the delay had caused hypoxic brain damage to the patient. On this point, the learned HCJ found the second defendant negligent in failing to intubate the patient, and the hospital was negligent in failing to provide necessary emergency equipment.

In so far as the hospital is concerned, the learned HCJ recognised that the first defendant owed a non-delegable duty to ensure a safe system of care and adequate emergency equipment. The failure on the part of the first defendant to have the oxygen adapter ready is a breach of this duty and has materially contributed to the patient's injury. Hence, the learned HCJ held that the hospital was negligent and liable alongside the doctors (i.e., the second and third defendants).

The learned HCJ also found that both the second and the third defendants had failed to keep proper records of the incident, including the missing oxygen connector and the timing of its recovery. The hospital also had failed to maintain a Code Blue Form, which the expert witnesses agreed should have been done. Such omissions could mislead the factual record, even though the truth was clarified through oral evidence. Most importantly, the hospital did not call the nurses who assisted during the Code Blue, nor did it explain their absence. In this regard, the learned HCJ drew an adverse inference under section 114 illustration (g) of the Evidence Act 1950, holding that the nurses' testimony would likely have been unfavourable to the defendants, particularly the first defendant.

With regard to the issue of causation, the learned HCJ found that the actions of the defendants were inextricably linked, and that the damage suffered by the patient arose from the wrongful conduct of all the defendants. The sequence of events - beginning with the premature discharge of the patient from the recovery room and culminating in the mishandling of the Code Blue in the ward constituted an unbroken chain of events that led to the patient's hypoxic brain injury and eventual death. The learned HCJ held that liability could not be placed solely on the second defendant, as each defendant's conduct had contributed to the outcome. Accordingly, the defendants were held jointly and severally liable for the loss suffered. Analysis and our findings.

At the outset, we would address the preliminary issue raised by the second defendant in this appeal. It was submitted that contended that the notice of cross appeal of the plaintiff seeks to vary the decision of the learned HCJ pertaining to issues on hospital and medical expenses, costs of physiotherapy, costs of purchasing special assistive equipment, pre-trial damages, aggravated damages, out of pocket expenses and interest. All these issues are not part of the decision appealed against by the second defendant through the notice of appeal dated 30.5.2024. In this regard, the plaintiff's cross appeal dated 5.8.2024 dealt with the issues of quantum that were beyond the ambit of the Notice of Appeal. Hence, the second defendant submitted that the notice of cross-appeal cannot be sustained because it was not founded within the ambit of the Notice of Appeal. The case of Kabushiki Kaisa Ngu v Leisure Farm Corporation Sdn Bhd & Ors [2016] 8 CLJ 149 was cited to support the proposition that the Notice of Cross Appeal would have to be limited to issues contained within the Notice of Appeal.

It is trite law that any cross-appeal must relate directly to the appeal brought by the appellant; otherwise, there ought to be a separate notice of appeal filed. A cross-appeal which is clearly unconnected with the substance of the appeal is fatally flawed (see Pengerusi Suruhanjaya Pilihanraya Malaysia v See Chee How & Anor [2015] 8 CLJ 367). Where the respondent seeks to overturn or set aside part of a finding, decision or judgment of the lower court which was not appealed in the appellant's Notice of Appeal, it is incumbent on the respondent to file an independent and separate Notice of Appeal, rather than a notice of cross-appeal (see Majlis Peguam v Cecil Wilbert Mohanraj Abraham [2019] 5 MLJ 159).

We disagree with the appellant on this issue. As we have shown in paragraph 4 (i) to (iii) above, the first and second appellants are appealing against the whole decision of the learned HCJ dated 3.5.2024. This would necessary means that the appellants are appealing against both the finding of liability and damages awarded to the respondent. Whereas the third defendant appealed against part of the award of damages. In the circumstances, we are of the considered view, the cross-appeal filed by the plaintiff is connected with the notices of appeal filed by the three defendants. As such, the preliminary objection is unmeritorious.

We will now deliberate on the issue of liability. This would necessitate the discussion on the issue of standard of care. In the case of Dr Esa Kamaruzaman v Dr Neville Anak Michael Gomis (mendakwa dengan sendirinya dan sebagai pentadbir estet Maisarah binti Repin, simati & ors [2025] 2 MLJ 513, it was stated that: [48] We shall start by reminding ourselves of the law regarding the applicable standard of care for a doctor, as the 3rd defendant in this appeal. In the case of Zulhasnimar binti Hasan Basri & Anor v Dr Kuppu Velumani P & 2 Ors [2017] 5 MLJ 438, Raus Sharif JCA (as he then was) on behalf of the Federal Court opines that the "reasonable prudent patient" test propounded by the Australian case of Rogers v Whitaker which was adopted by the Federal Court case of Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 is only restricted to the determination of the standard of care for a doctor's duty to advice or provide information of risks in relation to any proposed treatment. The "reasonable prudent patient test" is not applicable in determining the standard with regard to a doctor's duty to diagnose and treat. Hence, in determining the standard of care for diagnosis and treatment, the Bolam test still applies, subject to the qualifications decided by the House of Lords in Bolitho v City & Hackney Health Authority [1997] 4 All ER 771. [49] The Bolam test was introduced in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, which states: ...A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view...The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. [50] The "qualifications" in the applicability of Bolam test is proposed by Lord Browne-Wilkinson in Bolitho v City & Hackney Health Authority (supra) which held that the court is not bound to hold that a defendant doctor escape liability for negligent treatment or diagnose just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment and diagnose accorded with sound medical practice. The court also held that before the judge can accept the body of opinion as being "responsible", the judge will have to be satisfied that "...in forming their views, the experts have directed their minds to the question of comparative risks and benefit and have reached a defensible conclusion on the matter." If it can be demonstrated that the expert medical opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not responsible. In essence, the court states: "A doctor could be liable for negligence in respect of a diagnosis and treatment despite a body of professional opinion sanctioning his conduct but where his professional opinion was not capable of withstanding logical analysis. In such situation, the court is entitled to hold that the body of opinion was not reasonable or responsible"

On the issue of liability of the medical centre, the court further stated: [51] It is to be reiterated that the 1 $ ^{1 s t} $ defendant is not appealing against the decision of the learned HCJ on the issue of vicarious liability and non-delegable duty of care. However, for completeness, this doctrine provides that all healthcare providers will be vicariously liable for the acts and conducts of their employees such as doctors, nurses and medical attendants, provided that the employee was acting "in the course of employment" (see Cassidy v Ministry of Health [1951] 2 KB 343). On the other hand, non-delegable duty of care concerns a primary liability imputed to a party not just to take responsible care but to ensure that reasonable care is taken. In the case of Dr Kok Choong Seng & Anor v Soo Cheng Lin [2018] 1 MLJ 685, the Federal Court held that the doctrine of non-delegable duty of care as expounded in the case of Woodland v Swimming Teachers Association and others [2014] AC 537 could extend to private health care institutions such as the hospital in relation to doctors, who is independent contractors, performs medical treatment within its facilities (see also Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66)."

With the above principle of law in mind, we will now examine the evidence which was adduced during the trial.

We would start by examining the expert report prepared by a SP1 (Dato Dr Gurdeep Singh a/l B. Mahinder Singh), a Consultant ENT Surgeon, who had observed that the patient had suffered hypoxic encephalopathic damage with neurological deficit. In layman's terms, it is a serious brain injury caused by a lack of oxygen to the brain, which leads to permanent damage, dysfunction, and long-term impairments. The important part of SP1's report states:

(i) The patient was then seen by Dato Dr Mohd Solahuddin bin Mohd Kenali, consultant ENT surgeon, on 23 February 2016, and some history was taken then. Subsequently, a decision to perform surgery was made. No attempt of conservative management appears to have been discussed. Surgery (Septoplasty/FESS) was done on 26 February 2016 around 6.00 pm. This, in my opinion, is a very late time to undergo an elective procedure. Surgery performed at night/after-hours is associated with a higher post-operative risk of death than surgery performed during the day. (1)

Meanwhile, SP2 (Dr Chan Yoo Kuan), a Consultant Anaesthesiologist, also prepared an expert report, and the important part of his report stated:

He came out to the recovery area at 2045 hr and was sent back to the ward at 2105 hr (i.e., 20 minutes), presumably with an Aldrete score of 10 (Tawakal pg 113). However, when he arrived in the ward at 2110, the nurse said he was drowsy (Tawakal pg 38), responding to the call by opening his eyes. His Aldrete score on arrival in the ward was definitely not 10; by extension of this reasoning, his Aldrete score on discharge from the recovery area was unlikely to have been at 10 (see Yeganeh Target controlled infusion anaesthesia with propofol and remifentanil compared with manually controlled infusion anaesthesia in mastoidectomy surgeries where the post anaesthesia recovery stay time to reach Aldrete Score of 10 averaged 42.8 +/- 8 minutes for TCI group). This patient was discharged at the end of only 20 minutes in the recovery room, which is less than half the time Yeganeh's patients took to reach an Aldrete Score of 10.

Recovery from General Anesthesia follows a sequence where patients gain control of the airway, breathing, and circulation, passing through periods of deep sedation, moderate sedation, and then into mild sedation (see Guideline for Sedation by non-Anesthesiologist article). A patient is safe for discharge from anesthesia care only if he is in mild or light sedation and can control his airway and breathing. Recovery from the TCI remains exactly like that for any general anesthesia. If remifentanil is used as part of the regime, the intraoperative and postoperative period can be complicated by respiratory depression or decreased breathing which can be a life-threatening even of concern to care providers (see Kim Anesthetic management with propofol/remifentanil target controlled infusion for awake craniotomy - a case report-the patient had apnoea insite of good oxygen saturation during awake craniotomy; Liu Factors affecting recovery from anesthesia with propofol-remifentanil target-control infusion in laparoscopic surgery where the author advises care providers to monitor patient closely to avoid low ventilation, respiratory depression and other sleep induced complications; Nimmo AAGBI and SIVA - Total intravenous anesthesia: guidelines for safe practice-which advises users of TIVA to be mindful of inter-individual differences and concomitant use of other agents as there is synergy between propofol and opioids) and this respiratory depression or inability to breathe well must be monitored for. The minimum that should be done is to have respiratory rate monitoring (Creitkos-respiratory rate - the neglected sign; Liu Factors affecting recovery from anesthesia with propofol - remifentanil target-controlled infusion in laparoscopic surgery) on the patient - this was not done in the recovery period, and neither was it done in the ward for this patient. In respiratory depression from narcotics, the respiratory rate goes down, and ventilation is compromised to a level that can threaten life, and indeed it happened to Datuk Ir. Zainuddin Kadir (ventilation was not monitored).

This patient also had bilateral FESS, septoplasty, and turbinoplasty, which prevents him from having a good airflow passage through both his nostrils. He had to rely on his mouth to breathe. Being drowsy and still experiencing the residual effects of the anesthesia, he failed to properly breathe (Nimmo-TIVA guidelines) through his mouth. If providers determine he is not breathing well through the mouth, they should insert an oropharyngeal airway. This was not done in the patient, and it was not written in the notes that they had specifically determined the patient's control of the airway and ventilation. The providers have supposedly passed him on the Aldrete score, giving him a score of 10 at the time of discharge from the recovery area, when his conscious level sub-score when he left the recovery area was unlikely to be 2. He was noted to open his eyes only when called back by nurses, which yields a sub-score of 1 for that parameter upon return to the ward. The providers have failed to realize that they had used extremely powerful sedative and anesthetic agents, narcotics, and a hefty dose of muscle relaxants, the effects of which will carry on into the post-operative period. They had discharged him prematurely when the airway and respiratory control were still inadequate and failed to properly monitor the patient and ensure his breathing passage, either through the nose or the mouth, was patent in light of his operation and his drowsy state. When respiratory depression occurred, it was not detected unless it was picked up by the son. The arrest could have occurred for a while before it was detected.

There were very few details to work on regarding what was done and the drug administered during the respiratory arrest, except that he was intubated and administered 15 litres of oxygen. We are not sure whether a self-ventilating bag or a Mapleson circuit was used after the intubation. There were no details about the duration of the respiratory arrest and how long the patient had been hypoxic. There was also no arterial blood gas sampling at the time immediately around the situation to give us an idea of how long the arrest had been and how bad the tissue hypoxia was. We do know, however, that the arrest was long enough to have made the patient sustain the brain damage that he ended up with. The respiratory depression could have been picked up earlier if the providers had retained him longer in the recovery area and monitored closely his ability to cough (sign of good control of his airway) and if he had also closely monitored his respiratory rate (his ability to breathe or ventilate) or his capnography in the postoperative period/ward (which measures how he was breathing through monitoring of carbon dioxide output with each breathe).

In the ICU although the providers had plans to provide cerebral protection, their ventilation strategies were not in keeping with their plans. They allowed the patient to be hyperventilated until the $ \mathrm{P a C O{2}} $ was too low to optimize whatever brain ischemia (see Go Should $ \mathrm{P a C O{2}} $ be tightly controlled for patients with brain injuries) the patient had as a result of the respiratory arrest.

SP2 concluded his report by stating:

The patient had been sent prematurely back to the ward after a 2-hour surgery when he had not completely recovered from the anesthesia.

The providers had failed to monitor his control of the airway and his ventilatory ability, and whether he had a return of his ability to breathe adequately after the general anesthesia. Both his nostrils were operated on, and so these were no longer normal passages he could use to breathe, and he had to rely on passage through the mouth as the alternative option. The providers had failed to ensure that the patient could use the alternate passage through the mouth during his drowsy state or that he was assisted in doing so if he was unable to do so for himself.

Being drowsy, his control of the airway and ventilation was still inadequate, especially having had 7.5 mg midazolam as premedication and additional drugs in the form of propofol, rocuronium (muscle relaxant), Remifentanil (narcotic), and Dynastat (intravenous non-steroidal anti-inflammatory drug for pain) intraoperatively.

The care in the ICU, especially their ventilation strategies, did not match the patient's requirement for cerebral protection post respiratory arrest. Premature discharge from the recovery bay

From the two reports prepared by SP 2 and SP 3, it is obvious that the main contributing factor to the injuries suffered by the patient was the lack of oxygen to the patient's brain. This condition needs to be considered in view of the fact that the patient had been given "extremely powerful sedative and anaesthetic agents, narcotic and a hefty dose of muscle relaxants" during the surgery. In this respect, the SP3 opined that it is imperative for the defendants "to monitor patients closely to avoid low ventilation, respiratory depression and other sleep-induced complications." It was also the opinion of SP3 that the "respiratory depression or inability to breathe well must be monitored for". Another aspect of SP3's opinion was that the effect of an extremely high dosage of sedative on the patient would carry on into the post-operative period. As the patient was feeling "drowsy and still experiencing the residual effect of the anaesthesia, he had failed to properly breathe".

Notwithstanding the post-operative condition of the deceased, the SP3 identified that there was no close monitoring of the patient's ability to breathe well. No respiratory rate monitoring was done on the patient during the recovery period, nor was it done in the ward. As a result, the respiratory rate went down, and ventilation was compromised to a life-threatening level. It was also noted that the doctors and nurses had failed to discover the cessation in respiration; it was the patient's son who had noticed the patient's severe condition.

In this regard, the witness had made a specific finding that: "They had discharged him prematurely when the airway and respiratory control were still inadequate and failed to properly monitor the patient and ensure his breathing passage, either through the nose or the mouth, was patent in the light of his operation and drowsy state"

The opinion of the plaintiff's expert had made a specific finding that the patient had been prematurely discharged from the recovery bay and sent to the ward. Based on the evidence, the patient was brought to the recovery bay at about 8.45 pm. He was already in the ward at 9.10 pm. He spent about 25 minutes in the observation bay. The question now is whether 25 minutes was sufficient for the second defendant to observe the condition of the patient and make the decision to transfer him to the ward?

In this respect, the Aldrette Scoring System maintained by the first defendant clearly stated that one of the discharge criteria for the patient was: "5. Observe for 1 hour after the last admission of antagonist (reversal agent)."

Obviously, the second defendant has failed to comply with the first defendant's own protocol. Instead of observing the condition of the patient for one hour, the second defendant had authorised the discharge of the patient from the recovery bay after only 25 minutes. Most importantly, there was no record that the doctors or nurses had determined the patient's control of the airway and ventilation post-surgery.

We have also referred to expert evidence of the second defendant and the third defendant. On the issue of premature discharge from the recovery bay, Dr Jeevanan Jahendran (SD 4) (for the second defendant) opined as follows: "In summary, this is an unfortunate incident that has resulted in the current debilitating state of the patient. No single factor can be pointed out for the adverse outcome in this case but it's usually a sequence of events and compounding factors that led to this outcome. Any surgery carries both surgical and anaesthetic risks, in addition to patient and disease factors. In sinus surgery, the shared airway brings inter-disciplinary cooperation between surgeon and anaesthetist. However there can be complications that can occur that has no causal relationship to the surgery performed. As far as the second defendant is concerned, based purely on the medical records given, he has advised and performed to the best of his abilities as a surgeon and his actions following the adverse event conforms to current medical practice standards. As to the probable cause in this case, the age, atherosclerosis, hypercholesterolemia and drug effects are one of many possibilities that could have contributed to the hypoxic event."

The third defendant was relying on the expert opinion of Dr Syed Rozaidi Wafa bin Syed Hussain Wafa (DW6). The important finding of DW 6 is as follows:

(v) Whether the Plaintiff should be monitored in the ICU for the first 24 hours after the operation before transferring to recovery bay or ward. From the records, there was no indication or risk that required the patient to be monitored in the ICU in the post-operative period. Other than hypercholesterolemia for which he has been treated, there was no need for close or added monitoring above the normal post-operative monitoring in this case.

Unlike SP2 and SP3, the expert witnesses called by the second defendant and the third defendant did not attribute any liabilities to them. There are inconsistent findings made by the experts.

The law is settled law that, when confronted with conflicting expert opinion, the court has the power to accept one expert opinion and reject the opinion of the other expert. In the case of Collector of Land Revenue v Allagapa Chettiar [1971] 1 MLJ 43, the Privy Council stated that: "...a finding that the opinion of one expert witness is to be preferred to that of another is also one which is not lightly disturbed by an appellate court unless it can be demonstrated that the judge who heard and saw them giving their evidence has misunderstood it or that the reasons for preferring one to the other are clearly unsound."

In Guan Teik Sdn Bhd v Haji Mohd Noor bin Haji Yakob & Ors [2000] 4 MLJ 433 at 439; [2000] 4 CLJ 324; [2000] 1 MLRA 617 it was held: "In cases where conflicting evidence is presented before the court, it is the duty of the court not only to weigh such evidence on a balance of probabilities, but it is also incumbent upon the court to look at all surrounding factors and to weigh and evaluate contemporaneous documents that may tend to establish the truth or otherwise of a given fact...He should after accepting the respondent's evidence, weigh it against the contemporaneous documents and evaluate whether such documents support the respondent's oral testimony"

In this regard, the learned HCJ had preferred the evidence of SP2 and SP3 over that of SD 4 and SD 5. We find that the learned HCJ did not err on this issue. The report prepared by SP2 and SP3 had referred to the records kept by the first defendant and had made comprehensive reports on their findings based on the terms of reference of their appointment as expert witnesses. With respect, the report prepared by the expert witnesses for the second and third defendants is too general and appears to shift the blame to the other defendant.

The learned HCJ had preferred the expert opinion of SP2 and SP3. Based on the reasons above, we see no reason to disagree with him. The learned HCJ cannot be faulted in accepting the evidence of the plaintiff's experts. Delay in administering oxygen

Back to the expert evidence of SP2 and SP3. SP3 makes a specific reference that the care in the ICU, especially its ventilation strategies, did not meet the patient's requirement for cerebral protection postrespiratory arrest.

In this respect, there are few incidences that show the defendants had breached their duty of care when attending to the patient.

Firstly, the evidence shows that the nurses who had attended to the patient at the recovery bay had failed to inform the third defendant that the patient had complaints of drowsiness when he was at the recovery bay. In this regard, the third defendant testified that if he had been informed by the nurses about it, he would have returned to reassess the patient to see whether he was fit to be discharged from the recovery bay.

Secondly, the first defendant had failed to ensure proper medical facilities were available at the ward. It was proven that when the patient was found to be cyanosed, and the Code Blue was activated, an oxygen adapter was found missing and had to be sourced elsewhere. This was confirmed by the patient's son, who happened to be a doctor, who testified that the oxygen adapter was not available when he had assisted the second defendant in providing cardiopulmonary resuscitation to the patient. This had delayed the supply of oxygen to the patient at the earliest possible opportunity and had resulted in the patient suffering from hypoxia. Even the third defendant testified that he had oxygenated the patient with an Ambubag connected to the oxygen cylinder that was obtained later before the patient was sent to the ICU.

Thirdly, there was evidence that the second defendant had attempted intubation but failed. It was shown in evidence that instead of intubating the patient in the trachea, the second defendant had intubated the patient in the oesophagus. It was later, when the third arrived at the ward, that he realised the error and had correctly intubated the patient in the trachea. The gravity of this error was explained by the third defendant in his cross-examination as follows: "FR: And what is the effect of it being in the oesophagus as opposed to the trachea? DW5: The effect would be quite bad because if you are ambubagging the tube which is in the oesophagus, then you are basically giving oxygen bypassing the lung completely, you're just giving the oxygen to the stomach actually. So the patient would not have got any oxygen at all during that period. FR: So the endotracheal tube has to be inserted into the trachea for oxygen to then go to the lungs of the patient? DW5: That's right."

Fourthly, the medical record of the patient was incomplete. Among others:

(i) There was no record of the discussion between the anaesthetist and the surgeon with the patient regarding his post-operation management.

(v) There were very few details to work on regarding what was done and the drug administered during the respiratory arrest, except that the patient was intubated and administered 15 litres of oxygen. There was no record of whether, after the intubation, a self-ventilating bag was used or a Mapleson circuit was used. There were no details about the duration of the respiratory arrest and how long the patient had been hypoxic.

Fifthly, the surgery on the patient, which was categorised as an elective surgery, was conducted late in the evening. This decision was criticized by SP2 because the surgery ended at the nurses' handover time, when reports need to be handed over to the nurses from the next shift, causing nursing care to be compromised. The risk of having the surgery late in the evening is apparent when the cessation in the patient's respiration was not detected by the nurses or doctor but by the patient's son.

Sixthly, the Aldrete Score was wrongly assessed by the nurses. Despite complaining of drowsiness and responding to the call by merely opening his eyes, his Aldrete Score was 10. Also, his Aldrete Score on discharge from the recovery bay was unlikely to have been 10 since he only spent about 20 minutes at the recovery bay.

From the above observation, and in view of the expert reports, we are of the considered opinion that the conduct of the second and third defendant fell short of a practice accepted as proper by a responsible body of medical men skilled in that particular art.

The third defendant had wrongly evaluated the patient's condition when he authorised the patient's transfer from the recovery bay to the ward less than the one-hour requirement that has been the accepted recovery time in post-operative treatment of patients undergoing surgery. The second defendant had failed to conduct a correct intubation on the patient, causing further delay in supplying oxygen to the lung, a vital respiratory organ of the patient.

In so far as the first defendant is concerned, it is obvious that it owed a non-delegable duty of care to the patient. The first defendant is responsible for ensuring that the hospital has sufficient equipment for use during an emergency. The first defendant must also be held liable for the failure of the nurses to maintain a proper medical record for the patient. As far as the second and third defendants are concerned, despite claiming that the second and third defendants are its 'independent contractors', undeniably, the first defendant had benefited from the services of the two doctors. The first defendant must have benefited financially from the services of the second and third defendants. Hence, the first defendant should not be dissolved from any liability arising from the negligent act of the doctors. (see Vincent Manikam s/o David & ors v Dr S Hari Rajah & Anor [2018] 2 MLJ 497).

In the circumstances, we are of the view that there are no plain errors committed by the learned HCJ on the issue of liability warranting appellate intervention.

The breakdown of the quantum of damages awarded by the learned HCJ is as follows: QUANTUM (Based on the High Court's Grounds of Judgment) NO.PARTICULARSAMOUNT AWARDEDPARAGRAPHS IN HC GOJA. SPECIAL DAMAGES1.Hospitalisation & Medical expensesNot awarded[128]2.Travel expensesRM 3,000-003.Costs of Physiotherapy (after deducting the amount paid by PNB)RM 6,480-004.Claim for the special assistive equipmentNot awarded[129]5.Costs of ambulance services.RM 2,850-006.Costs of supplements.RM 11,524-00 NO.PARTICULARSAMOUNT AWARDEDPARAGRAPHS IN HC GOJ7.Costs of Personal Care items.RM 5,829.718.Costs of nutritional care items.RM 15,205.509.Costs of Discovery of the deceased medical records.RM 16,639.0010.Costs of holidays for carersNot awarded11.Costs of the disabled vehicle.RM 133,049.0012.Costs of maid. Maid RM 3,500 x 36 months (additional maid due to the incident - this court does not allow the costs of the existing maid that the family had before the incident)RM 126,000.0013.Caregivers RM 3,500 x 41 monthsRM 143,500.00SUB-TOTALRM 464,077.21B. PRE-TRIAL DAMAGES14.Travel expensesNot awarded15.Costs of Physiotherapy16.Claim for the special assistive equipment17.Costs of ambulance services.18.Costs of supplements.19.Costs of Personal Care items.20.Costs of nutritional care items.21.Costs of maid and caregivers.22.Costs of obtaining the Grant of Letters of Administration. (reasonable expense without which the Plaintiff will have difficulties in starting proceedings against the Defendants).RM 16,960.0023.Funeral Expenses.RM 5,000.0024.The value of care by family. (RM 1000 x 67 months) See Hasniyati bt Hassan v Kerajaan Malaysia [2022] MLJU 376 - but this Court increased the amount due to the type of injury and difficulties faced by the wife and family.RM 67,000.00SUB-TOTALRM 88,960.00C. GENERAL DAMAGES NO.PARTICULARSAMOUNT AWARDEDPARAGRAPHS IN HC GOJ25.General Damages for pain and suffering and loss of life.RM 500,000.00[130]26.Aggravated DamagesNot awarded[131]SUB-TOTALRM 500,000.00D. STATUTORY BEREAVEMENT UNDER SECTION 7 (3A) OF THE CIVIL LAW ACT 1956 & LOSS OF EARNINGStatutory bereavement under section 7 (3A) of the Civil Law Act 1956.RM 30,000.00Loss of earnings - RM 65000.00 x 63 months (from the date of the termination of his contract to his death)RM 4,095,000.00[132]SUB-TOTALRM 4,125,000.00E. COSTS27.i) Against 1st Defendant; ii) Against 2nd Defendant; iii) Against 3rd DefendantRM 210,000 (RM 70,000 each Defendant)[136]28.Out-of-pocket expensesNot awardedTOTAL A+B+C+D+E5,388,037-21

The defendants are appealing against the award of damages under the following items:

(i) Loss of earning capacity.

(v) Pre-trial damages for the cost of obtaining letters of administration.

However, it must be noted that the first defendant did not appeal for item (vi), whereas the second defendant did not appeal under items (iv) and (v).

It is settled law that the aim in awarding damages is to put the injured party, as close as possible, in the same position as he would have been if he had not suffered the injuries. In the case of Dr Kok Choong Seng & Anor v Soo Cheng Lin & Another Appeal [2017] 10 CLJ 529, Md Raus Sharif CJ held: "[105] It is trite that damages in tort are compensatory in nature. The tortfeasor is liable for all natural and direct consequences flowing from the wrongful act. The damages awarded for such consequences include special damages for those items, and general damages for those items not capable of exact calculation such as pain and suffering or future loss. [106] The general rule in awarding damages is to put the injured party in the same position as he would have been in if he had not sustained the wrong. The injured party is prima facie entitled to be compensated for his nett loss; financial benefits accruing to him which he would not have received but for the tort should be taken into account and set off against the claim for damages (Halsbury's Law of England, $ 5^{\mathrm{th}} $ reprint at paras 341-347)” Loss of Earnings

It was submitted for the defendants that the plaintiff is not entitled to loss of earnings as it is contrary to section 28A of the Civil Law Act, which provides that no damages for loss of future earnings shall be awarded in the case of a plaintiff who has attained the age of fifty-five years or above at the time he was injured. It is not disputed that at the material time, the patient was fifty-six years old, hence, the plaintiff is not entitled to claim for the loss of future earnings.

It was submitted before us by learned counsel for the plaintiff that the plaintiff is in fact claiming for the loss of earnings capacity for the period of 63 months from the date of the injury to the date of his demise. It was further submitted that the claim for the loss of earnings capacity is a common law remedy which is permissible pursuant to section 3(1)(a) of the Civil Law Act 1956. In this respect, the case of Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] 2 MLJ 201 was cited, where it was stated that: "The principle applicable to future loss of earning capacity and its distinction with future loss of earnings are explicitly discussed in Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30 by the Federal Court. The proper test to be applied is whether some time in the future, due to the effect of the injuries sustained by him, the plaintiff will face a substantial risk of either losing his job or getting a less paid employment. It does not matter whether the plaintiff was in employment or not at the time of the trial so long as the Court is satisfied from evidence that there is a real risk or substantial risk that his earning capacity will be affected in the future. Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9 and Cook v Consolidated Fisheries Ltd [1977] ICR 635-639 are some of the cases in which a claim for loss of earning capacity was allowed to plaintiffs who were in employment and whose earnings were not affected at the material time."

Section 28A (2) (c) (i) of the Civil Law Act 1956 provides for the formula in ascertaining the award of loss of future earnings. It provides: "28A (1) ...

(c) In awarding damages for loss of future earnings the Court shall take into account-

(i) That in the case of a plaintiff who has attain the age of sixty years or above at the time when he was injured, no damages for such loss shall be awarded; and in any case, damages for such loss shall not be awarded unless it is proof or admitted that the plaintiff was receiving earnings by his own labour or other gainful activity before he was injured."

Section 28A had been amended by the Civil Law (Amendment) Act 2019. It is pertinent to note that section 5 of the Amendment Act had amended section 28A (2) (c) (i) by substituting for the words "fifty-five years" the words "sixty years" and also by deleting the words "was in good health but for the injury and".

Pursuant to the amendment, the age limit for the purposes of assessing the loss of future earnings is extended from fifty-five years to sixty years. It has the effect of increasing the upper limit of the multiplier for the purposes of assessing the loss of future earnings from fifty-five to sixty. The amendment took effect on 1.9.2019. However, the plaintiff filed the action in August 2019, a month before the coming into force of the amendment act. In this respect, the saving provision under section 6 of the Amendment Act provides: "Saving

(1) Any actions or proceedings under section 7 and 28A of the principal Act and matters relating to such action or proceeding commenced or pending immediately before the date of coming into operation of the Act shall, on the date of coming into operation of this Act shall, be continued as if the principal Act had not been amended by this Act."

By this saving provision, if an action or proceeding under section 28A was commenced or pending immediately before 1.9.2019, the action or proceeding shall be continued under the pre-amendment provisions of section 28A, as if the said provision had not been amended. In the context of the present appeal, the action was filed before the amendment came into effect. Hence, the pre-amended section 28A is applicable.

In this respect, the plaintiff was fifty-six years old at the time of commencement of the action. This fact is not disputed. Hence, under the pre-amended section 28A, the plaintiff is precluded from claiming the loss of future earnings.

Be that as it may, it was contended by the plaintiff that they are also claiming common law loss of future earning capacity. In essence, loss of earning capacity relates to the reduced ability of the plaintiff to earn due to the injury suffered. It is about the impairment on the future employability, promotion, or job opportunity, or the overall diminishment in earning potential. A loss of earning capacity results from a loss of the potential to earn income. Put in another way, due to the injuries sustained, what are the plaintiff's chances of obtaining comparable employment in the open labour market.

In the case of Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 2 CLJ 163, the Federal Court stated that: "Loss of future earnings and loss of earning capacity distinguished. There is also a difference between loss of future earnings and loss of earning capacity although both items are under general damages. Future loss of earnings or loss of prospective earnings are awarded for real assessable loss i.e. loss that is capable of assessment at the date of the trial. It must be proved by evidence and not by mere speculation. In the absence of such evidence if the court is satisfied that the plaintiff has suffered a loss of earning capacity, he will be awarded a sum as part of the general damages for his disability suffered as a result of the injuries sustained, instead of compensation for loss of future earnings. It arises where there is a residual risk that the plaintiff might be thrown out of work altogether at some future date. The risk must be real and not speculative or fanciful. Any loss of money is relevant, whether the money is properly described as "earnings" or not, provided that the money is more than a "mere possible contingency." Thus, loss of possible contract as opposed to loss of probable contract is not recoverable. (See Kemp and Kemp on the Quantum of Damages, vol. 1, 4th edn on pp. 122 and 123). Generally both items need not be specifically pleaded as in the case of special damages but averred in general terms in the pleadings. (see also Hj Ariffin Hj Ismail v Mohamaad Noor Mohammad [2001] 2 CLJ 609)”

Is trite that to qualify for the loss of earning capacity, there must be evidence that due to the injury, the plaintiff can no longer do his usual work but some less strenuous or less demanding work. This requirement was set out in the case of Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324; [1983] 1 MLRA 154. In that case, the plaintiff was a plastic surgeon. He suffered injuries due to the negligent driving by the defendant, which grazed against the plaintiff's left arm. As a result of the accident, he was unable to work for two months, and for the duration of twenty weeks after that, he suffered partial disability. He claimed that his left arm became weak and unsteady after the accident, and in spite of regular exercise and physiotherapy treatment, the hand still remained weak, coupled with tremors. As a result, he was unable to carry out operations in plastic surgery for which he claimed to be specifically trained. In respect of the claim for loss of earning capacity, the Federal Court through held: "(4) the general principle is that an injured plaintiff is entitled to damages for the loss of earnings and profits which he has suffered by reason of his injuries up to the date of trial and for the loss of prospective earnings and profits of which he is likely to be deprived in the future. There must be evidence on which the court can find that the plaintiff will suffer future loss of earnings, it cannot act on mere speculation. If there is no satisfactory evidence of loss of future earnings but the court is satisfied that the plaintiff has suffered a loss of earning capacity, it will award him damages for his loss of capacity as part of the general damages for disability and not as compensation for future loss of earnings. In this case the respondent has not shown that he has lost any future earnings but has only shown a diminished earning capacity."

Unfortunately, in this case, the plaintiff did not survive the injuries sustained during the surgery. He fell into a vegetative state after the surgery. He died in the midst of trial on 20.10.2021 Consequently, there is no basis for the claim for the loss of earning capacity as there could be no evidence, and there can be no evidence of his ability to undertake alternative employment in the future. As stated earlier, a claim for loss of earning capacity may be awarded if there is evidence to support the claim; mere speculation is not sufficient. Hence, we are of the considered view that this claim should fail. Costs and expenses of employing maids and caregivers

Under this head of damages, the plaintiff was awarded the sum of RM 126,000.00 for costs of maid and RM 143,500.00 for costs of caregiver. It was submitted that the plaintiff was not entitled to claim for the costs of employment of maids, as the plaintiff already had two maids employed prior to the injury suffered by the patient.

During the trial, the plaintiff had testified that the patient was fully reliant on others for all activities and that he required 24-hour care for changing of diapers, feeding, performing physiotherapy, cleaning, and performing suction to prevent pneumonia, among others. It must be noted that the patient had been bedridden since the incident; hence, the costs for a maid and a caregiver to take care of the patient were reasonable.

We are of the view that the plaintiff is entitled to be compensated for these expenses. Cost of care from family members

The learned HCJ awarded RM 67,000.00 for the value of care by family. It was submitted that this sum awarded is excessive, in view of the fact that the plaintiff had also claimed and was awarded the costs for hiring a maid and a caregiver.

Under this head of damages, the learned HCJ cited the case of Hasniyati bt Hassan v Kerajaan Malaysia [2022] MLJU 376 and awarded RM 67,000.00 due to the type of injury and the difficulties faced by the wife and family members.

We agree with the learned HCJ on this issue. From the evidence, it is reasonable to infer that the family members had also contributed to care for the patient up to the date of his death. We are of the view that the amount awarded is reasonable and we find no appealable error. General Damages

The learned HCJ awarded RM 500,000.00 for general damages for pain and suffering and loss of life. It was submitted by the learned counsel for the second defendant that this award was excessive. It was suggested that the sum of RM 300,000.00 is a reasonable amount.

In awarding general damages for pain and suffering, the learned HCJ considered the fact that the patient had suffered permanent brain damage which eventually led to his death. The patient had also enjoyed an active lifestyle at work and domestically during his lifetime, and that his estate should be compensated for what he had to endure during the events at the hospital, but also for what he had to endure till to his death.

It was proven during trial that the patient was, among others, bound to his bed, attached to a tracheostomy tube on his neck and fed through a PEG tube attached to his abdomen. Obviously, he had suffered pain and suffering, as well as loss of amenities of life. In this regard, learned counsel for the plaintiff had cited the case of Prince Court Medical Centre Sdn Bhd v Lim Yoke Har (suing through his son and litigation representative, Goh Seng Cha) & Ors and another suit [2025] 8 MLJ 105 to support his contention that the sum awarded under this head of damages is not excessive.

Considering the condition of the patient and that he had to live in that condition for more than 5 years, we agree with the learned HCJ that RM 500,000.00 is a reasonable sum of damages for pain and suffering. Special damages for the cost of obtaining an order for the pre-action discovery of the medical records

It was submitted for the defendant that the award under this head of damages is exorbitant and not supported by any documentation. It was also submitted that since the order of disclosure of the medical records was made with no order as to party to party costs, hence the plaintiff should not be entitled to claim damages for the costs of obtaining the order.

Learned counsel for the plaintiff cited the High Court case of Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 CLJ 825 where it was held that: "[23] Physicians and hospitals would be well advised to grant access to patient's medical records unless there were circumstances warranting the withholding of the same for reasons discussed earlier...If access is withheld unreasonably and the patient is to put to costs and expense to procure a court order to compel production of the medical records, for instance under the provisions of O.24 r.7A of the Rules of Court 2012, then the patient would in such circumstances be entitled to costs on a solicitor-client basis."

We agree with the learned JC's (as he then was) observation in Nurul Husna Muhammad Hafiz (supra) on the need to have access to the medical report of the patient in a negligence suit. There is a need for transparency in the management of negligence suits, and, subject to reasonable circumstances, unnecessary bureaucracy should be avoided to prevent the patient from being deprived of the right to speedy disposal of his claim.

In this regard, we are of the considered opinion that the sum of RM 16,639.00 is reasonable. Pre-trial damages for the cost of obtaining Letters of Administration/ order for Appointment of Committee of the Person and Estate of the Person.

It was submitted by learned counsel for the plaintiff that following the patient's brain damage, the patient's wife had to make an application to the High Court to obtain an order for the management of his estate and other matters by way of appointment of a Committee of the person and estate of the person. In this respect, the invoice for the solicitor and client costs issued by Messrs Kesavan was listed in part B document, and the plaintiff testified that she had to incur such legal expenses.

In this respect, it was admitted by learned counsel that they have inadvertently made an erroneous submission at trial pertaining to the claim of obtaining a Letter of Administration, whereas the sum quoted, i.e., RM 16,960.00 was the costs for obtaining the Order for Appointment of Committee of the Person and Estate of the Person. It was further submitted that the plaintiff will not claim the cost of obtaining the Letter of Administration.

We accepted the learned counsel's explanation for this mix-up. We have examined the evidence of SP1 (the plaintiff) and are of the view that the plaintiff did incur this expense, which is necessary for the commencement of the plaintiff's claim. We allow the plaintiff's claim under this head of damages. Statutory bereavement.

It was submitted by the second and third defendants that the learned HCJ had erred in awarding RM 30,000.00 to the plaintiff for bereavement. It was contended for the defendant that the cause of action in this case had accrued on 26.2.2016 hence, the preamendment provision of section 7 of the Civil Law Act 1956 should apply, and the plaintiff is only entitled to RM 10,000.00 for bereavement.

It is not in dispute that section 7 (3A) came into effect on 1.9.2019, which had increased the damages for bereavement from RM10,000.00 to RM 30,000.00.

It was submitted that the patient had died on 20.10.2021, long after the amendment came into force. In this respect, it must be observed that the plaintiff had amended the Statement of Claim on 26.4.2022, whereby she had claimed for bereavement. In view of the amendment and the fact that the patient had died long after the amendment to section 7 of the Civil Law Act, we are of the opinion that the plaintiff is entitled to RM 30,000.00 as damages for bereavement. We find no appealable error on this issue.

The plaintiff's cross-appeal is on quantum of damages under the following head of damages:

(i) Special damages for:

(a) The hospital and medical expenses;

(b) The costs of physiotherapy;

(c) Costs of special equipment.

(a) The travel expenses;

(b) The costs of physiotherapy;

(c) The costs of special equipment;

(d) The costs of ambulance services;

(e) The costs of supplements;

(f) The costs of personal care items;

(g) The costs of nutritional foods;

(h) The costs of hiring maids.

(v) Interest. Special damages for the hospital and medical expenses

The learned HCJ dismissed this head of damages on the ground that those costs were paid by the patient's previous employers. Under this head of damages, the plaintiff is claiming RM 504,527.69 for hospital and medical expenses, which were partly paid by the patient and partly by his employer. The patient's employer partly paid RM392,216.21, not the full sum of RM504,527.69.

Having considered section 28A of the Civil Law Act and the decision in Dr Kok Choong Seng (supra) and Ward v Malaysian Airlines System Bhd [1991] 3 MLJ 317, we are of the opinion that the plaintiff is not unjustly enriched by claiming the full costs of hospital and medical expenses when the patient's employer had partly paid the costs. We are of the view that the defendants should not benefit from the patient's medical coverage under his previous employment, given that they are responsible for the loss suffered by the patient.

We are of the view that the learned HCJ had erred in dismissing this claim. The plaintiff should be compensated in the sum of RM 504,527.69.

Applying the same reason above, we are of the view that the plaintiff should be compensated for the following claim:

(i) costs of physiotherapy; and

The learned HCJ had refused to award pre-trial damages. Under this head of damages, the plaintiff is claiming, among others, costs of physiotherapy, costs of special equipment, and costs of hiring maids. These expenses had been awarded by the learned HCJ, which can be seen at paragraph 126 of the grounds of judgment, hence, we find no appealable error committed by the learned HCJ. Aggravated damages

In the case of Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor (and Another Appeal) [2018] 3 MLJ 281, the Federal Court states that there is no reason to exclude aggravated damages from medical negligence cases, as such cases involve real injury to a person's body.

Generally, aggravated damages are awarded to compensate the plaintiff for the increased mental distress, humiliation or injury to dignity caused by a defendant's high-handed, malicious or outrageous conduct.

However, in the case of Bukit Tinggi Hospital Sdn Bhd v Navin Sharma a/l Karam Chand & Anor [2025] MLJU 3236, the Court of Appeal held that aggravated damages require a living claimant who has suffered worsened emotional injury due to the defendant's conduct. Therefore, when the person dies, the claim dies with them. The estate cannot claim aggravated damages for conduct that may cause distress to those near and dear to the deceased.

In the present case, while the defendants were negligent, there is no evidence to suggest that the defendant's conduct was malicious, contumelious or outrageous. The third defendant's decision to discharge the patient to the ward was based on his assessment of the patient at that particular time. Furthermore, the third defendant immediately attended to the patient when a Code Blue was alerted. As for the second defendant, his failure to intubate the patient correctly may be due to his inefficiency in emergency situations. However, there is no evidence to show that his conduct was malicious or contumelious. Furthermore, following Bukit Tinggi Hospital Sdn Bhd (supra), aggravated damages should not be allowed in cases where the victim had passed away.

We find no appealable error committed by the learned HCJ on this issue. Out-of-pocket expenses

The plaintiff is claiming RM 59,291.08 as out-of-pocket expenses. The learned HCJ did not make any order on out-of-pocket expenses.

It was submitted that the plaintiff has been awarded costs of RM70,000.00 from each defendant (total costs of RM 210,000.00); hence, this amount must have included out-of-pocket expenses.

In our view, costs should not be excessive and should only cover what is necessary to cover the necessary costs of litigation. As such, out-of-pocket expenses should be included in the total costs awarded by the learned HCJ. The learned HCJ is not plainly wrong in not making any order regarding out-of-pocket expenses. Interest

The learned HCJ did not make any order on pre-judgment interest. Under section 11 of the Civil Law Act, the learned HCJ has the discretion to award pre-trial interest if he thinks fit. While the learned HCJ did not give reasons for refusing to allow prejudgment interest, we are of the view that the decision was made in the exercise of his discretion. In this appeal, we will not disturb the learned HCJ's exercise of discretion. Conclusion

Based on the above reasons, our decision is as follows:

(a) Appeal no W-02(NCvC)(W)-903-05/2024 (Appeal R10/903) We dismiss the appeal, we affirm the decision of the learned HCJ with costs of RM50,000.00, subject to allocatur.

(b) Appeal no W-02(NCvC)(W)-932-06/2024 (Appeal R11/932) We dismiss the appeal, the decision of the learned HCJ is hereby affirmed. Costs of RM50,000.00 subject to allocatur.

(c) Appeal no W-02(NCvC) (W)-933-06/2024 (Appeal R12/933) We dismissed the appeal. We affirmed the decision of the learned HCJ with costs of RM50,000.00, subject to allocatur.

(d) The plaintiff's cross appeal We allow the cross-appeal in part as follows: Special damages for the hospital and medical expenses We allow the appeal. The award of the learned HCJ is hereby varied. Pre-trial damages We disallow this head of damages, the appeal is hereby dismissed Aggravated damages We disallow this head of damages, the appeal is hereby dismissed. Out-of-pocket expenses We disallow this head of damages, the appeal is hereby dismissed Interest We disallow this head of damages, the appeal is hereby dismissed. Dated: 12 February 2026 (Azhahari Kamal bin Ramli) Judge of the Court of Appeal APPEAL NO.: W-02(NCvC) (W)-903-05/2024 Counsel for The Appellant :

Felix Raj

Ahmad Aizek Busu [FELIX RAJ CHAMBERS] Counsel for The Respondents: 1 $ ^{1 \mathrm{ST}} $ RESPONDENT:

Manmohan S Dhillon

Aaika Zulaika Mohd Yusop

Muhammad Luqman Firdaus Md

Adrian Ashwin V Balasagaran

Navamalar Ganesan

Leena Subramaniam [ANAD & NORAINI]

Barvina Punnusamy

David Timothy APPEAL NO.: W-02(NCVC)(W)-932-06/2024 Counsel for The Appellant

Navamalar Ganesan

Leena Subramaniam [ANAD & NORAINI] Counsel for The Respondents: 1$^{ST}$ RESPONDENT:

Manmohan S Dhillon

Aaika Zulaika Mohd Yusop

Muhammad Luqman Firdaus Md

Adrian Ashwin V Balasagaran

Felix Raj

Ahmad Aizek Busu [FELIX RAJ CHAMBERS]

Barvina Punnusamy

David Timothy APPEAL NO.: W-02(NCVC)(W)-933-06/2024 Counsel for The Appellant

Barvina Punnusamy

David Timothy Counsel for The Respondents: 1 $ ^{1 \mathrm{ST}} $ RESPONDENT:

Manmohan S Dhillon

Aaika Zulaika Mohd Yusop

Muhammad Luqman Firdaus Md

Adrian Ashwin V Balasagaran

Felix Raj

Ahmad Aizek Busu

Navamalar Ganesan

Leena Subramaniam