Selvaraju A/l Ponniah [Membawa Tindakan Ini Di Dalam Kapasiti Diri Sendiri Dan Sebagai Pentadbir Sah Estet Serta Sebagai Tanggungan Jothiletchumy A/p Kani Govindar, Si Mati ("Si Mati")] v Pengarah Hospital Tengku Ampuan Rahimah (BA-21NCvC-47-03/2021)

KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN JUDGMENT Introduction [1] This case stems from a tragic sequence of events, beginning with a devastating road traffic accident that left the Plaintiff’s late wife with life-altering injuries. She sustained multiple fractures that necessitated surgical intervention with implants. Tragically, before the planned 23/04/2025 13:34:42 BA-21NCvC-47-03/2021 Kand. 89 S/N CEomNzgzz0exupnApu4KSA procedure could take place, she succumbed to her condition on 25 March 2018, with her death attributed to Fat Embolism — a complication often linked to traumatic fractures. The Plaintiff’s principal point of contention is that his wife’s untimely death was a direct consequence of the Defendants’ negligence. However, the Defendants have firmly denied any wrongdoing, disputing both negligence and liability in this heartrending matter. The Central Issues [2] In determining whether negligence has been established, the key issues for consideration in this action may be reduced to the following:

Whether there was a delay in treatment to the deceased.

(ii) Whether the delay, if any, caused the death of the deceased.

(iii) Whether the Plaintiff is entitled to the claim for damages under sections 7 and 8 of the Civil Law Act 1956. Salient Background Facts [3] It is not disputed that on 15 March, 2018, the deceased was involved in a road traffic accident. She was brought to the Hospital Tengku Ampuan Rahimah and admitted for treatment. [4] The deceased suffered from the following injuries as a result of that road traffic accident: S/N CEomNzgzz0exupnApu4KSA

Closed fracture distal end radius with distal radius ulna joint disruption and ulnar styloid fracture; and

Closed fracture supracondylar of right femur. [5] The deceased was then advised to undergo surgery as treatment and that the surgery would require surgical implants. The deceased was also then informed that the hospital will be making the application for financial assistance from the Social Security Organisation (“SOCSO”) on her behalf for the surgical implants needed. [6] The application for surgical implants to SOCSO was only made on 22 March, 2018 and full documentation was only given on 24 March, 2018. [7] The deceased died on 25 March, 2018 with the cause of death being attributed to “Fat Embolism”. The Plaintiff’s Claims and Contentions [8] As evident from the opening paragraph, the Plaintiff’s cause of action is premised on negligence, for the death of his late wife, Jothilecthumy A/P Kani Govindar, on 25 March, 2018. [9] The Plaintiff has commenced the present action as the husband of the deceased, in his capacity as the administrator of the deceased’s estate under sections 7 and 8 of the Civil Law Act 1956. The reliefs sought are for general damages, special damages, damages for bereavement, exemplary damages and/or aggravated damages, along with interest and costs. S/N CEomNzgzz0exupnApu4KSA [10] The Plaintiff's action against the Defendants arose from the treatment received by the deceased at Hospital Tengku Ampuan Rahimah (HTAR) for injury resulting from an accident. The Plaintiff essentially claims that the Defendants were negligent in the application process for an implant from SOCSO, which resulted in the deceased's death. [11] It was averred by the Plaintiff that the fractures sustained by the deceased put her at an increased risk of suffering from Fat Embolism. [12] The Plaintiff asserted that since the deceased was in the care of the Defendants from her admission to the hospital on 15 March, 2018 up to her death on 25 March, 2018, by delaying the treatment of the deceased, the Defendants had breached their duty of care. [13] The Plaintiff further alluded to the testimony by the Defendants’ First Witness (DW1) who confirmed that the deceased needed surgery to install the implants to treat the fractures. [14] The Plaintiff’s case is that “there was an unjustifiable delay in the application for financial assistance for the implants required for the surgery”. [15] The Plaintiff pointed out that the application was only made by the Defendants on 22 March, 2018, that is, seven days after his late wife was admitted. In fact, the full documentation for the application was only completed on 24 March, 2018, nine days after his late wife was put under the care of the Defendants (see the Permohonan PERKESO e-Pulih). S/N CEomNzgzz0exupnApu4KSA [16] According to the Plaintiff, the failure by the First and/or Second Defendant to ensure that the application was made promptly was the sole reason for the delay in surgery. It is the Plaintiff’s case that there was no justification for the delay. [17] Considering that the deceased had a higher risk of developing Fat Embolism and that any delay in treatment further increases that risk, the Plaintiff argued that there was a need to ensure that the deceased was treated without undue delay. [18] Citing the cases of McGhee v National Coal Board [1972] 3 All ER 1008 and Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909, the Plaintiff contended that since the delay in surgery increased the risk of developing Fat Embolism, the Defendants “could not now deny that the delay has not caused or materially contributed to the occurrence of fat embolism that led to the demise of the deceased”. The Defendants’ Contentions [19] The Defendants' main argument is that the Plaintiff has failed to prove their claim against the Defendants based on these following reasons:

No evidence was presented by the Plaintiff's witnesses to establish the Plaintiff’s claim;

(ii) There is no delay in operation in this case and there is a scheduling system for operation and it is standard hospital practice; S/N CEomNzgzz0exupnApu4KSA

(iii) Fat Embolism is a well-known medical risk that can arise in Plaintiff’s medical condition irrespective of when or whether the surgery is performed;

(iv) The Plaintiff has not established a direct causal link between the alleged delay and the death;

Treatments were given by Hospital Tengku Ampuan Rahimah to reduce the risk of Fat Embolism: and

(vi) No failure in diagnosis or treatment has been proven. [20] It was also asserted by the Defendants that the Plaintiff has failed to substantiate and specifically prove the alleged negligence against the Defendants by presenting the necessary elements of negligence purportedly committed by the Defendants toward the deceased. [21] Relying on authorities such as Lee Seng Kee v Sukatno (Ong Thean Soo, third party) [2008] 4 AMR 405; [2008] CLJU 226; [2008] 4 MLJ 716; [2008] 5 MLRH 220, Dr Quah Thong Sai v Manonmoney a/p Subramoney & Ors [2012] 4 CLJJ 853; [2012] 3 MLJ 379; [2012] 5 MLRH 472 and Paruwathi Mutaya v Pengarah Hospital Selayang & Ors [2011] 1 LNS 1628; [2011] MLJU 1257; [2011] 13 MLRH 901 and together with sections 45 and 101 of the Evidence Act 1950, it was submitted by the Defendants that the Plaintiff is required to but has failed to present expert evidence that Fat Embolism could have been prevented if surgery had been performed promptly. S/N CEomNzgzz0exupnApu4KSA [22] Regardless of the above submission, the Defendants averred that they have proven that the treatment given was in accordance with accepted medical practice. [23] The Defendants categorically submitted that there was no delay in treatment given to the deceased. The Defendants outlined the events that had taken place from the time the deceased was admitted until the time of her passing and submitted that there was no evidence suggesting negligence. [24] The Defendants further asserted that all necessary medical actions and treatments for the deceased were properly administered in accordance with standard medical practice. [25] With regards to the allegation by the Plaintiff relating to the hospital's failure to supervise and prevent complications from the injury, which allegedly resulted in the death of the deceased due to Fat Embolism, the Defendants strenuously refuted such a claim and stressed that the allegation is unfounded. [26] In response to the Plaintiff’s assertion that timely surgery could have eliminated or reduced the risk of Fat Embolism Syndrome, the Defendants once again produced evidence through their witnesses to refute the Plaintiff’s allegation. [27] The underlying contention by the Defendants is that Fat Embolism Syndrome can still occur despite timely surgery and that the Defendants had adhered to standard medical practices in managing the Plaintiff’s condition and that there was no evidence to suggest that any act or S/N CEomNzgzz0exupnApu4KSA omission on their part directly caused or contributed to the resultant Fat Embolism in the instant case. [28] Concerning the Plaintiff’s assertion that the delay on the part of the Defendants in having the forms submitted to SOCSO and thus preventing the surgical procedure to be carried out timeously, the Defendants’ contention was that even if there was an increased risk for Fat Embolism to occur, “that increased risk does not establish or can be equated as medical negligence”. The Proceedings at the Trial. [29] Two witnesses testified on behalf of the Plaintiff. These two witnesses were (1) Selvaraju a/l Ponniah (PW1) – the Plaintiff in this action and suing in his capacity of the administrator of the deceased’s (his late wife’s) estate; and (2) Sathiyamurithe a/l Subramaniam (PW2) – a childhood friend of the Plaintiff. [30] The Defendants also called two witnesses. The first was Dr Kamarulzaman bin Hj M S Kadir (DW1) – who was as Orthopaedic Specialist at the Hospital Tengku Ampuan Rahimah during the period the deceased was admitted until her untimely death. [31] The second witness who testified on behalf of the Defendants was Dr Haris Ali bin Chemok Ali (DW2) – a Consultant Orthopaedic Surgeon/Specialist at the Serdang Hospital. [32] The trial was conducted over one day, on 26 November, 2024. S/N CEomNzgzz0exupnApu4KSA [33] Upon the completion of trial, this Court issued directions for the parties to file their respective written submissions. The Decision of this Court On Liability [34] This Court will first address the issue of whether the Plaintiff has established a case in negligence against the Defendants. [35] As in all negligence cases — and particularly in cases of medical negligence — the success of the Plaintiff’s claim depends on the strength of the evidence presented. Specifically, the Plaintiff in this case must establish negligence, causation, and a direct link between the Defendants’ actions (or inactions) and the Fat Embolism that resulted in the deceased’s death. [36] It is the duty of this Court to carefully consider the applicable legal principles, thoroughly evaluate the evidence before it, and apply those principles to the facts of this case to determine whether the Defendants are liable for this tragic loss of life. [37] As the deceased had been brought to the First Defendant hospital following the accident and had been admitted for treatment and was under the care of the Second Defendant, it is not in doubt that the Defendants owed a duty of care towards the deceased to exercise a fair and reasonable standard of care and skill of a competent medical practitioner (see, for example, Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 AMR 621; [2007] 1 CLJ 229; [2007] 1 MLJ 593; [2006] 2 MLRA 410 and Kow S/N CEomNzgzz0exupnApu4KSA Nan Seng v Nagamah & Ors [1981] CLJU 208; [1982] 1 MLJ 128; [1981] 1 MLRA 319, on a duty of care owed by a doctor towards his or her patient.) [38] What remains unclear is whether the First and Second Defendants had breached this duty of care. This turns on the question of whether there was a delay on the part of the Defendants in delaying the treatment for the deceased. [39] The evidence revealed that upon arrival at the First Defendant’s Emergency Department at 5:31pm on the date of the accident, the deceased was examined by an emergency medical officer at 6:15pm. The examination revealed that the deceased was conscious, able to speak, not experiencing difficulty in breathing and was hemodynamically stable. A deformity was found in the right knee and right wrist. The medical officer then administered pain relief and ordered further X-ray examinations of the knee and wrist. [40] Later that same day, at 7:05pm, the deceased was re-examined by the emergency medical officer, and the X-ray results revealed fractures in the right knee and right wrist. The treatment plan was to continue pain relief and refer the case to an orthopaedic medical officer. At 8:00pm, the deceased was seen by an orthopaedic medical officer. The examination confirmed that the deceased was stable. [41] Based on the diagnoses, the treatment plan included admission to the ward, applying a backslab to the right arm (“above elbow backslab of right upper limb”), and a backslab to the upper right thigh (“above knee backslab of right lower limb”). S/N CEomNzgzz0exupnApu4KSA [42] In the following day, that is, on 16 March, 2018, the deceased was seen by the Second Defendant and medical officers at 8:30am. The examination and X-ray results indicated that the deceased required surgery with implant equipment. The deceased agreed to undergo surgery and expressed the intention to discuss payment for the implant with family members. [43] At approximately 4:50pm on the same day, the deceased informed the orthopaedic medical officer that she was a SOCSO contributor. Her details were recorded and handed over to the registrar medical officer to verify her SOCSO eligibility through the E-Pulih system. [44] The implant application for the deceased was submitted in the E-Pulih system on March 19, 2018. The attending medical officer then checked the system and found that the deceased's application “was not yet available”. As a result, the officer resubmitted the application in the system on March 22, 2018. [45] Due to a technical ground, the quotation previously provided by Zuellig Pharma Sdn Bhd did not have an expiration date. Therefore, a new quotation was required to be uploaded into the system. [46] The application process was fully completed on March 24, 2018, after obtaining and uploading the new implant quotation into the system. [47] Unfortunately, on 25 March, 2018 at 2:40pm, the deceased experienced respiratory distress. The deceased was treated with CPR by the orthopaedic medical officers and was intubated. After 30 minutes of S/N CEomNzgzz0exupnApu4KSA CPR, the deceased did not respond and was confirmed deceased at 3:30pm. [48] The Defendants categorically submitted that based on the above chronology of events, that is, from the time the deceased was brought to the hospital until the time of the deceased’s passing, there was no delay in treatment given to the deceased. [49] While the entire submission process could have been carried out in a more efficient and expeditious manner, this Court does not find that the Defendants had been guilty of delay in submitting the application to SOCSO. [50] Even if the SOCSO claim had been approved within, say, 24 hours the deceased being admitted, there may still have been a delay for the surgery to be carried out. This is because theatre time largely depends on departmental needs and patients are prioritised based on the severity of their condition, that is, whether the condition is life threatening or not. [51] No matter if there were a delay, it is this Court’s finding that the delay cannot be attributed as the direct cause of death. [52] Based on the available evidence, this Court is also satisfied that the treatment given was in accordance with accepted medical practices. [53] Conscious of the importance of minimizing the release of fat globules into the bloodstream, this Court has asked DW1 about the steps and actions taken to reduce the risk and to manage the symptoms. S/N CEomNzgzz0exupnApu4KSA [54] This Court is satisfied that treatments and measures were taken for early stabilization of fractures and adequate hydration was maintained to stabilize the patient and reduce the risk of fat globule aggregation in the bloodstream. [55] In view of the above findings, this Court is of the considered view that the Plaintiff has failed to prove the death of the deceased was due to the negligence of the Defendants. On Quantum [56] This Court shall now address the claims under sections 7 and 8 of the Civil Law Act 1956. [57] The relevant provisions in Part III of the said Act provide as follows: FATAL ACCIDENTS AND SURVIVAL OF CAUSES OF ACTION Compensation to persons entitled for loss occasioned by death

7.

Whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof , the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to an offence under the Penal Code [Act 574]. S/N CEomNzgzz0exupnApu4KSA

Every such action shall be for the benefit of the wife, husband, parent, child and any person with disabilities under the care, if any, of the person whose death has been so caused and shall be brought by and in the name of the executor of the person deceased.

The damages which the party who shall be liable under subsection (1) to pay to the party for whom and for whose benefit the action is brought shall, subject to this section, be such as will compensate the party for whom and for whose benefit the action is brought for any loss of support suffered together with any reasonable expenses incurred as a result of the wrongful act, neglect or default of the party liable under subsection (1): Provided that —

in assessing the damages there shall not be taken into account —

any sum paid or payable on the death of the person deceased under any contract of assurance or insurance, whether made before or after the coming into force of this Act;

any sum payable, as a result of the death, under any written law relating to employees’ provident fund;

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

(ii) damages may be awarded in respect of the funeral expenses of the person deceased if such expenses have been incurred by the party for whose benefit the action is brought;

(iii) no damages shall be awarded to a parent on the ground only of his having been deprived of the services of a child; and no damages shall be awarded to a husband on the ground only of his having been deprived of the services or society of his wife; and

(iv) in assessing the loss of earnings in respect of any period after the death of a person where such earnings provide for or contribute to the damages under this section the Court shall —

take into account that where the person deceased has attained the age of sixty years at the time of his death, his loss of earnings for any S/N CEomNzgzz0exupnApu4KSA period after his death shall not be taken into consideration; and in the case of any other person deceased, his loss of earnings for any period after his death shall be taken into consideration if it is proved or admitted that the person deceased was receiving earnings by his own labour or other gainful activity prior to his death;

take into account only the amount relating to the earnings as aforesaid and the Court shall not take into account any prospect of the earnings as aforesaid being increased at any period after the person’s death;

take into account any diminution of any such amount as aforesaid by such sum as is proved or admitted to be the living expenses of the person deceased at the time of his death;

take into account that in the case of a person who was of the age of thirty years and below at the time of his death, the number of years’ purchase shall be 16; and in the case of any other person who was of the age range extending between thirty one years and fifty-nine years at the time of his death, the number of years’ purchase shall be calculated by using the figure 60, minus the age of the person at the time of death and dividing the remainder by the figure 2.

Any action under this section may consist of or include a claim for damages for bereavement and, subject to subsection (3D), the sum to be awarded as damages under this subsection shall be thirty thousand ringgit.

A claim for damages for bereavement shall only be for the benefit of —

the spouse of the person deceased;

the child of the person deceased; and

the parents of the person deceased.

Where there is a claim for damages under subsection

(3B), the sum awarded shall be divided equally between them subject to any deduction likely to be made in respect of all costs and expenses including costs not recovered from the defendant.

The Yang di-Pertuan Agong may from time to time by order published in the Gazette vary the sum specified in subsection (3A).

An order made under subsection (3D) shall be published in the Gazette and as soon as possible thereafter, shall be laid before the Dewan Rakyat; and if the Dewan Rakyat passes a resolution annulling the order, it shall be void but without S/N CEomNzgzz0exupnApu4KSA prejudice to the validity of anything previously done thereunder or to the making of a new order as from the date of notification in the Gazette of the passing of the resolution.

The amount, other than the amount awarded under proviso (iii) to subsection (3) and the amount recovered under subsection (3B), so recovered after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them in such shares as the Court by its judgment or decree directs.

Not more than one action shall be brought for and in respect of the same subject matter of complaint, and every such action shall be brought within three years after the death of the person deceased.

In any such action the executor of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by the wrongful act, neglect, or default, which sum when recovered shall be deemed part of the assets of the estate of the deceased.

The plaint or writ or summons in any such action shall give full particulars of the person or persons for whom or on whose behalf the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered. S/N CEomNzgzz0exupnApu4KSA

If there is no executor of the person deceased or there being an executor no action as in this section mentioned has, within six calendar months after the death of the person deceased, been brought by the executor, the action may be brought by all or any of the persons, if more than one, for whose benefit the action would have been brought if it had been brought by the executor, and every action so to be brought shall be for the benefit of the same person or persons and shall be subject to the same procedure as nearly as may be as if it was brought by the executor.

It shall be sufficient for any defendant in any action brought under this section to pay any money, he is advised to pay into Court as a compensation, in one sum to all persons entitled under this section for his wrongful act, neglect or default without specifying the shares into which it is to be divided. Effect of death on certain causes of action

8.

Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery. S/N CEomNzgzz0exupnApu4KSA

Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person —

shall not include any exemplary damages, any damages for bereavement made under subsection 7(3A), any damages for loss of expectation of life and any damages for loss of earnings in respect of any period after that person’s death;

in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; and

where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless proceedings against him in respect of that cause of action either — S/N CEomNzgzz0exupnApu4KSA

were pending at the date of his death; or

are taken not later than six months after his personal representative took out representation.

Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this section, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

The rights conferred by this section for the benefit of the estate of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by section 7 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said section as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this S/N CEomNzgzz0exupnApu4KSA section, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust. [58] The reliefs sought by the Plaintiff are as follows: I. Bereavement As the spouse of the deceased, a claim of RM30,000.00 under section 7(3B)(a) of the Civil Law Act 1956. II. Special Damages (under section 7(3)(ii) of the Civil Law Act 1956) Funeral Costs: RM6,500.00 Costs incurred for the application of the Letters of Administration RM1,500.00 TOTAL RM7,500.00 III. Dependency Claim A claim for RM90,000.00 on the basis that the deceased was earning a salary of RM1,500.00 per month and was contributing RM1,000.00 per month for household expenses. S/N CEomNzgzz0exupnApu4KSA Since the deceased was at the age of 43 at the time of her passing, the figure was derived based om the following: RM12,000 (per annum) x 8.5 = RM90,000.00 IV. General Damages V. Aggravated Damages VI. Interests and Costs [59] The Defendants challenged the relief sought by the Plaintiff under Part II on the basis that there was neither any testimony nor documentary evidence supporting the claim for RM8,000.00. [60] The Defendants drew support from cases such as Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324 and Yeap Cheng Hock v Kajima-Taisei Joint Venture [1973] 1 MLJ 230 for the proposition that special damages must be pleaded and proved. However, the Defendants conceded that the Plaintiff had submitted a receipt of RM2,900.00 for funeral expenses. [61] With regards to the Defendants’ submission on special damages, this Court is mindful of the decisions in cases such as Qi Qiaoxian (Claiming as the Mother and Dependent of Qi Xiangqing, Deceased) & Anor v Sunway Putra Hotel Sdn Bhd [2024] AMEJ 0723; [2024] 5 CLJ 734; [2024] MLJU 732; [2024]4 MLRA 49 (“Qi Qiaoxian”) and Vasantha Kumari Supramaniam & Anor v Dr Pakirisamy Baskaran & Ors [2024] AMEJ 2831; [2024] CLJU 2891; [2024] MLJU 3357; [2025] 2 MLRH 736 (“Vasantha Kumari”). S/N CEomNzgzz0exupnApu4KSA [62] In Qi Qiaoxian, the issue before the Court of Appeal was whether claims for special damages could only be proven by documentary evidence. The Court of Appeal answered the question raised as follows: P. Whether Claim For Special Damages Can Only Be Proven By Documentary Evidence [59] The defendant’s learned counsel had contended that the plaintiffs’ claim for special damages should be dismissed because such a claim was not supported by documentary evidence. This submission found favour with the learned Sessions Court and High Court Judges. [60] With respect to the Sessions Court and the High Court, we are of the view that a claimant can claim for special damages based solely on the credible testimony of a witness. This decision is premised on the following reasons:

there is nothing in the EA which has provided, either expressly or by necessary implication, that special damages can only be proven by way of documentary evidence. In fact, s. 134 of the EA has stated that no particular number of witnesses shall in any case be required for the proof of any fact;

(ii) in the High Court case of Nurul Husna Muhammad Hafiz & Anor v. Kerajaan Malaysia & Ors [2015] 1 CLJ 825, at [39] and [40], Vazeer Alam Mydin Meera JC (as he then was) has decided as follows: [39] Counsel for the defendants whilst agreeing that Nurul Husna may need to be fed special food, vitamins and S/N CEomNzgzz0exupnApu4KSA nutritional supplements, argues that without proper documentary evidence of payment receipts for such purchases, a sum of RM200 per month would be more appropriate. [40] I allowed the sum of RM44,500 as claimed by the plaintiffs as the amount claimed is not farfetched in today’s prices and it would be too much to expect Nurul Husna’s parents to keep documentary proof of expenses incurred for these expenses since her birth. In this regard, I accept the submissions of counsel for the plaintiffs that the evidence was clear that the irreversible injuries and disabilities suffered by Nurul Husna had and continue to have an overwhelming and debilitating effect on her parents and carers. Their resources were centred on first saving her life and next caring for her. In such circumstances it is unreasonable to expect Nurul Husna’s parents to collect bills and receipts and filing them away with a view to bringing a claim especially when the defendants had hidden their culpability in the treatment and management provided to Nurul Husna. (See Overseas Investment Pte Ltd v. Anthony William O’Brien & Anor [1988] 2 CLJ 238; [1988] 2 CLJ (Rep) 82; [1988] 3 MLJ 332). Indeed, if the defendants had candidly acknowledged their negligence earlier, than Nurul Husna’s parents could have taken legal advice much earlier and kept copies of their bills and receipts to support their claim. In this regard, I accept that it would be unrealistic to expect Nurul Husna’s parents have copies of bills and receipts for all of the expenses. (emphasis added); and S/N CEomNzgzz0exupnApu4KSA

(iii) in the Singapore High Court case of STU v. The Comptroller Of Income Tax [1962] CLJU 179; [1962] 1 LNS 179; [1962] 1 MLJ 220, at 221, Tan Ah Tah J gave the following judgment: In this case certain explanations given by the appellant to the officers of the Income Tax Department were rejected on the ground that there was no documentary evidence to support them. No doubt documentary evidence can in many cases be very cogent and convincing. The lack of it however, should not invariably be a reason for rejecting an explanation. Not every transaction is accompanied or supported by documentary evidence. Much depends on the facts and circumstances of the case, but if the person who is giving the explanation appears to be worthy of credit does not reveal any inconsistency and there is nothing improbable in the explanation, it can, in my view, be accepted. (emphasis added) [61] As explained in the above para. 60, the learned Sessions Court and High Court Judges had committed an error of law when they rejected the plaintiffs’ claim for special damages solely on the ground that the plaintiffs had adduced no document in support of such a claim … . [63] In Vasantha Kumari, the High Court addressed the question on special damages in the following terms: Special damages for customary Hindu [funeral] rites [17] According to the grounds of judgment prepared by the learned DR (Enel 113), the reason the learned DR disallowed this claim for S/N CEomNzgzz0exupnApu4KSA RM5,000.00 was because there were no receipts or any documentation produced to prove the expenses. [18] In our mixed cultural nation, it is a well-known norm that different modes of funeral rites would be undertaken in accordance with the religious belief and culture of the deceased and that of his or her family. In this case, it is undisputed that the plaintiffs are Hindus. Thus, I take judicial notice that they would have undertaken a customary Hindu funeral rites for their deceased baby boy. Section 56 of the Evidence Act 1950 provides as follows: "56. Fact judicially noticeable need not be proved No fact of which the court will take judicial notice need be proved." [19] As for the lack of documentary evidence to support the claim for RM5,000.00, His Lordship Quay Chew Soon J in Hasniyati bt Hassan & Anor v. Kerajaan Malaysia [2022] 7 CLJ 565; [2022] 10 MLJ 469; [2022] 3 AMR 726; [2022] 5 MLRH 675 (HC), an authority cited and relied upon by both the parties, at paras 51, 52 and 53 said: "[51] D complains that no documentary evidence was produced to substantiate this claim. But the parents did not and cannot be expected to keep bills and receipts for such expenses. P1 was not in the proper mental state and her husband had to focus on caring for P2 and the rest of the family. P1 testified that she had kept most of the receipts but her maid had disposed of them inadvertently. S/N CEomNzgzz0exupnApu4KSA [52] I accept that a claimant is not expected to behave like a bookkeeper in compiling bills and receipts. The evidence regarding past expenses may be given through documents or the oral testimony of witness. In Rohgetana, the Court of Appeal said (at p 109 (MLJ)): [16] ... the defendants persisted before us that only such expenses incurred as could be supported by receipts (documentary proof) ought to be allowed. We however did not find that the learned judge had misdirected himself on the law when he held that special damages, so long as they were pleaded and particularised, could be proved by oral or documentary evidence... Such claims were to be allowed so long they were within a reasonable sum and justifiable in the circumstances." [53] I am satisfied that the sum pleaded is reasonable and justifiable. There is no need to achieve arithmetical accuracy when calculating the travel and incidental expenses incurred during the special damages period. I therefore allow the pleaded sum of RM14,300 for this item of damages." [20] There is no need to act like a bookkeeper especially when one is suffering from depression over the loss of a baby, and bearing in mind the cultural local context in Malaysia that both the appellants are Hindus, it is more probable than not that they would have undergone such customary rites. Further, with the lapse of time of 23 years between the filing of the Writ in 2001 and the assessment of damages in 2024, it would not be reasonable to expect the appellants to have these pieces of evidence save for a recollection of the same. A refusal of this reasonable S/N CEomNzgzz0exupnApu4KSA claim warrants appellate intervention and for an award for this claim to be made. [64] On the claim under Part III, the Defendants once again raised the point that “the Plaintiff has failed to submit any testimony and document detailing the nature or amount of financial contributions made by the deceased”. [65] The Defendants also argued that the “deceased’s children have already reached the ages of 25, 23, and 17, indicating that they are either independent or close to financial self-sufficiency” and “additionally, the Plaintiff himself admitted under cross-examination that he was the primary provider for the family, not the deceased”. [66] To substantiate their challenge on the claim under Part III, the Defendants referred this Court to cases such as Muhamad Bin Hashim v Teow Teik Chai & Anor [1996] 2 AMR 1594; [1996] 1 CLJ 615; [1996] 4 MLJ 7, Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 AMR 1991; [1994] 3 CLJ 687; [1994] 3 MLJ 233; [1994] 1 MLRA 305 and Jub'li bin Mohamed Taib Taral & Ors v Sunway Lagoon Sdn Bhd [2001] 4 CLJ 599; [2001] 6 MLJ 669. [67] With regards to the claims for general damages and aggravated damages in Parts IV and V respectively, it was the Defendants’ contentions that:

there was “no pain suffered by the deceased before the death”;

“the Plaintiffs are not entitled to exemplary damages based on the provisions of section 8(2)(a) of the Civil Law Act 1956”; and

“no evidence in this case has been proven by the Plaintiffs to entitle them to aggravated damages” (as per the principles and guidelines outlined in Thompson v Commissioner of Police [1997] 2 ALL ER 762, Sambaga Valli a/p K.R Ponnusamy v Datuk Bandar Kuala Lumpur dan 2 yang lain [2018] 1 MLJ 784 and Tan Harry and another v Teo Chee Yeow Aloysius and another [2004] SLR 513. [68] Having considered the evidence before the Court and the authorities cited above, this Court awards the Plaintiff the following reliefs: • Special Damages of RM8,000; • RM30,000.00 for bereavement pursuant to the provisions in section 7(3A) and (3B) of the Civil Law Act 1956; • RM81,600 for loss or earnings (RM9,600.00 (per annum) x 8.5 = RM81,600.00) under section 7(3)(iv)(d) of the Civil Law Act 1956; and • Pre and post judgment interest for the above damages pursuant to section 11 and Order 42 rule 12 of the Civil Law Act 1956 and Rules of Court 2012 at 8% per annum and 5% per annum respectively. [69] The claims for general and aggravated damages are disallowed. S/N CEomNzgzz0exupnApu4KSA [70] In view of this Court’s finding on liability, the Plaintiff’s action is dismissed with costs. [71] The Plaintiff to pay costs of RM10,000.00 to the Defendants. Dated: 1 April, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Zaid bin Abd Malek and Yu Ying Ying for the Plaintiff (Messrs. Daim & Gamany) Shazreen Nadia binti Zulkipli for the Defendants (Jabatan Peguam Negara, Putrajaya)