XXXX v Gombak Medical Centre Sdn. Bhd. (W-02(NCvC)(W)-1327-08/2024)

DAN GOMBAK MEDICAL CENTRE SDN BHD …RESPONDEN-RESPONDEN

DR ZANA ZALINDA BINTI S MOHD GHAZALI DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA SAMAN NO: WA-22NCVC-1011-02/2019 ANTARA NUR FUZIATUN BINTI MOHD FADZLI (menyaman melalui bapa dan wakil litigasi, MOHD FADZLI BIN JAMIL) …PLAINTIF

DAN GOMBAK MEDICAL CENTRE SDN BHD …DEFENDAN-DEFENDAN

DR ZANA ZALINDA BINTI S MOHD GHAZALI 12/12/2025 10:26:52 W-02(NCvC)(W)-1327-08/2024 Kand. 73 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 2 CORAM HAJJAH AZIZAH NAWAWI JCA AZIZUL AZMI ADNAN JCA FAIZAH JAMALUDIN JCA JUDGMENT OF THE COURT INTRODUCTION [1] The appellant plaintiff, Nur Fuziatun Mohd Fadzli, is a minor. She claimed to have suffered brain injury arising from the circumstances of her birth, 5 resulting in cerebral palsy. It is a permanent and life-long condition. Through her father and litigation representative, she sued the three respondent defendants. [2] For the purposes of this judgment, the parties are referred to here as they were at the court below. [3] Gombak Medical Centre Sdn Bhd, the first defendant, was the private 10 medical facility where the plaintiff was delivered. It is no longer in operation. [4] The second defendant, Dr Noor Fidak Samsudin was the “person in charge” of the Gombak Medical Centre within the meaning of section 32 of the Private Healthcare Facilities and Service Act 1998. She was also the head of the Obstetrics and Gynaecology Department of the first defendant. 15 [5] The third defendant Dr Zana Zalinda S Mohd Ghazali was the doctor who undertook delivery of the plaintiff. Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 3 [6] The plaintiff initially claimed against two other defendants, but these actions were subsequently discontinued. The first defendant issued a notice of contribution and indemnity against the second and third defendants. The Plaintiff’s Claims [7] The plaintiff claimed that the defendants were negligent in providing 5 medical care to the plaintiff and her mother and in attending to her birth. There were a long list of allegations of negligence, which included the failure to have an adequate system of referrals, in having appropriately qualified specialists available on standby, in the failure to properly diagnose fetal distress and in negligently undertaking a vacuum extraction. 10 At the High Court [8] The High Court found that the case against the third defendant Dr Zana Zalinda failed on account that the plaintiff failed to establish causation: that the plaintiff’s condition was brought about by the negligence of Dr Zana Zalinda in carrying out the delivery. Specifically, the High Court found:

the absence of complete cardiotocography records precluded the court from finding that Dr Zana had in any way acted negligently in attending to the birth of the plaintiff;

the light meconium-stained liquor does not provide conclusive proof that a foetus is in distress;

that plaintiff’s own expert, Dr Ong, agreed that in 85-90% of cases, cerebral palsy developed in utero and only in the remainder of cases that the condition arose as a result of the acts of doctors; and Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 4

on the contention that Dr Zana had incorrectly carried out the vacuum extraction delivery, the court found that the delivery had been carried out in accordance with the procedures recommended in a publication entitled Vacuum Extraction published by the US National Library of Medicine1. 5 [9] As a result of these findings, the High Court was of the view that the issues relating to the liabilities of the first and second defendants also fell away. The grounds of judgment stated: [81] Sehubungan itu, mahkamah ini mendapati bahawa tiada pelanggaran kewajipan duty of care oleh D3 terhadap Plaintif dan/atau ibu Plaintif. Dalam 10 keadaan sedemikian, isu-isu berkenaan:  kuantum ganti rugi;  liabiliti Gombak Medical Centre;  liabiliti D2; kini menjadi akademik. Apabila D3 didapati tidak bertanggungjawab atas dakwaan 15 tort kecuaian perubatan, soal liabiliti di pihak Hospital (sebagai penyedia perkhidmatan kesihatan) dan D2 (sebagai orang yang bertanggungjawab di Hospital) tidak timbul, apatah lagi isu ganti rugi. Begitu juga, Notis Indemniti dalam Lampiran 27 bukan lagi isu dan tidak memerlukan analisa lanjut daripada mahkamah ini. [10] The High Court dismissed the plaintiff’s claim and struck out the notice of 20 contribution. The parties were directed to bear their own costs. Summary of this Court’s Decision [11] The following paragraphs summarise our findings in this case: 1 Tonismae T, Canela CD, Gossman W. Vacuum Extraction. [Updated 2023 Jul 29]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2025 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK459234/ Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 5

there existed a general duty on the part of the second defendant Dr Noor Fidak, as the person in charge of the first defendant Gombak Medical Centre, to take reasonable care in the running of the hospital facilities to protect its patients from harm, and that this duty was owed to the plaintiff;

at common law, a duty arose on the part of the first and second defendants to ensure that there would be timely access to all medical experts (including specialists in anaesthesiology and neo-natal care) as would be necessary to deal with complications that could reasonably be expected to arise in childbirth;

the first and second defendants breached this duty of care by failing to make available a paediatrician specialising in neo-natal care whether on-call or for consultation at the time the delivery of the plaintiff was undertaken;

there had been an unacceptable delay in transferring the plaintiff to a 15 hospital that had neo-natal intensive care facilities and that this delay breached the duty of care that was owed by the first and second defendants to the plaintiff. In the case of Dr Zana Zalinda the third defendant, we are satisfied that she had done all that she could have in the circumstances to ensure that the plaintiff received the 20 appropriate care in a timely manner;

there was no negligence on the part of Dr Zana Zalinda either in diagnosing fetal distress or in the manner she had undertaken the delivery of the plaintiff; Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 6

the finding of fact by the trial judge that causation has not been proven was plainly wrong, as there were critical items of evidence that were not taken into account in the analysis of the facts in the grounds of judgment of the High Court:

the low Apgar score established that the baby suffered from 5 respiratory issues, and hypoxia is one of the causes for cerebral palsy;

(ii) neither the plaintiff nor her mother possessed any of the risk factors that indicated congenital cerebral palsy; and

(iii) the unanimous view of both the experts was that the plaintiff’s 10 cerebral palsy developed as a result of the complications at birth. The High Court could not have come to a contrary finding without concluding that those opinions were obviously indefensible and unsupported by the basic facts of the case; and

the breach of duty on the part of the first and second defendants to 15 provide timely access to neo-natal intensive care facilities materially and adversely contributed to the plaintiff’s condition. THE PRINCIPLES OF NEGLIGENCE GENERALLY [12] At the outset, it may be observed that the High Court committed a fundamental error when it dismissed the plaintiff’s claims against the first and 20 second defendants consequent upon the finding that Dr Zana had not acted negligently in undertaking the delivery. The plaintiff claimed to have direct causes of action in negligence against the Gombak Medical Centre and Dr Noor Fidak. Some of the contentions of negligence were independent of the actions Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 7 alleged to have been committed by Dr Zana. For example, it was alleged that the Gombak Medical Centre was under an obligation to have an anaesthetist and a paediatrician available during delivery. If indeed such obligation existed and it was established that the first defendant had failed to provide for a paediatrician to be available on standby, then this breach would have established liability 5 against the first defendant independently of the contentions of negligence against Dr Zana. [13] Similarly, it was alleged that there was a delay in transferring the plaintiff to a hospital with neonatal intensive care facilities. Liability for this delay would have been independent of any contention of negligence during delivery. Put 10 another way, the doctor undertaking delivery may well be blame free, but there may have been subsequent delay in ensuring that a patient is given adequate follow-up care, and this delay, if it materially and adversely contributes to the damage or injury suffered, may establish liability on the part of the hospital even in the absence of negligent conduct in undertaking the delivery. 15 [14] As a consequence of the misdirection by the court below on the question of the incidence of liability, it will be necessary for this court to consider afresh the scope and extent of the duties that are owed by the defendants to the plaintiff. The Elements of Negligence 20 [15] In a claim for negligence, a plaintiff will need to establish the existence of a duty of care owed by the defendant to the plaintiff, he must prove that there was a breach of that duty of care, and that the breach had caused damage to the plaintiff, and finally it must be shown that the damage claimed was not too remote, in that it was a reasonably foreseeable consequence of the breach. 25 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 8 [16] The principles relating to the duty of care of medical practitioners have been explained in the Federal Court case of Zulhasnimar Hasan Basri v Dr Kuppu Velumani P2. They may be summarised as follows.

A medical practitioner will owe a duty of care to his or her patient when advising, diagnosing and treating that patient.

When considering whether there has been a breach of the duty to advise the patient, it is for the court to decide whether the patient has been properly advised: Foo Fio Na v Dr Soo Fook Mun3.

By contrast, in connection with the duty to diagnose and treat the patient, the court will have regard to the practice accepted as proper 10 by a responsible body of practitioners skilled in that particular art: Bolam v Friern Hospital Management Committee4.

The court may, however, adopt a view that departs from the standards of the body of practitioners if those standards do not withstand logical analysis: Bolitho v City & Hackney Health Authority5. 15 [17] The accepted standards of medical practice can be established either through the publications of medical societies or by the opinion evidence of medical experts. [18] As explained, in determining the applicable standard of care of the third defendant in undertaking delivery with a vacuum extractor, the High Court had 20 made reference to a publication entitled Vacuum Extraction by the US National 2 [2017] 8 CLJ 605 3 [2007] 1 CLJ 229 4 [1957] 2 All ER 118 5 [1997] 3 WLR 1151 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 9 Library of Medicine. This document was not included in the trial bundles, not referred to by the medical experts or other witnesses and was also not referred by the parties in their submissions. We are of the view that the court below was perfectly entitled to refer to this publication, by reason of the proper application of section 57(2) of the Evidence Act 1950. 5 [19] As an exception to the general rule that facts must be proven by evidence, certain facts need not be proven if the court may take judicial notice of them. This is provided for in Chapter III of the Evidence Act 1950, section 56 of which states precisely that. Section 57(1) provides for a list of facts of which the court must take judicial notice. These include matters such as laws and regulations 10 having the force of law. the course of proceedings in Parliament and the meaning of Malay and English words. In respect of those matters listed in section 57(1), the court may make reference to appropriate books or other documents of reference. Crucially, the court may also refer to books and documents of reference in relation to matters of “public history, literature, science or art”. This 15 is expressly provided for in section 57(2), which reads as follows:

In all these cases, and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference. [20] The observant reader will appreciate that there is an ellipsis in the drafting 20 of section 57(2). By necessary implication, section 57(2) provides for the power of the court to take judicial notice of matters relating to public history, literature, science and art. However, unlike section 57(1), there is no duty on the court to take judicial notice of such matters; it is a matter of the discretion of the court. [21] Part III of the Evidence Act 1950 does not oust the common law rules of 25 evidence for the courts to take judicial notice of facts. Thus, the court may take Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 10 judicial notice of facts that are common and general knowledge that are sufficient notorious that it would be proper to assume its existence without proof. [22] The principles explained in the preceding paragraphs find support in the following dicta of the Supreme Court in Pembangunan Maha Murni v Jururus 5 Ladang6: Now, the general rule is that all facts in issue and relevant facts must be proved by evidence. There are, however, two classes of facts which need not be proved, viz. (a) facts judicially noticed and (b) facts admitted. The exceptions are dealt with by sections 56, 57 and 58 of the Evidence Act 1950 under the title "Facts which need not 10 be proved." In so far as judicial notice is concerned, the provisions of section 57 subsection (1) makes it mandatory for the Court to take judicial notice of all laws and regulations having the force of law, public Acts passed by Parliament, the course of parliamentary proceedings and other matters that are enumerated in subsection (1)

to (o) of the section. The list however is not exhaustive since it is impossible to 15 make a really complete list although a long list of facts which the English courts take judicial notice has been prepared. The important point to note is that section 57 does not prohibit the courts from taking judicial notice of other facts not mentioned therein. The matter which the Court will take judicial notice must be the subject of common and general knowledge and its existence or operation is accepted by the 20 public without qualification or contention. The test is that the facts involved must be so sufficiently notorious that it becomes proper to assume its existence without proof. The opponent, however, is not prevented from disputing the matter by adducing evidence if he disputes it. (See Sarkar on Evidence, 13th Edn. paras. 606- 609). Judicial knowledge is continually extended to keep pace with the advance of 25 art, science and general knowledge. Subsections (2) and (3) of section 57 provide discretionary power to the Court to resort to the aid of appropriate books or documents of reference in all matters of public history, literature, science or art. [23] Even though the appellant has not sought to raise as a point of appeal the fact that the High Court referred to a document that had not been referred to 30 by the parties in argument, we consider it appropriate for this issue to be addressed here, as it a point of law that may have an import outside of the scope of the present dispute. 6 [1986] 2 MLJ 30 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 11 THE EXISTENCE OF A DUTY OF CARE [24] That the first and third defendants owed a duty of care to the plaintiff was not in material dispute. The second defendant, however, contended that no such duty of care was owed by her, as the person in charge of the Gombak Medical Centre. 5 The Duty of Care of the Second Defendant [25] A private healthcare facility such as the first defendants requires a licence to operate. This licence is issued under the Private Healthcare Facilities and Services Act 1998. Once licensed, the private healthcare facility must ensure that its facilities and services are maintained or operated by a “person in charge”: 10 section 31(1)(a) of the Act. The definition of the expression “person in charge” makes it abundantly clear as to scope of responsibilities of the person in charge, which is to be responsible for the management and control of the private healthcare facility: “person in charge” means a person possessing such qualification, training and 15 experience as may be prescribed and who shall be responsible for the management and control of the private healthcare facility or service to which a licence or registration relates; [26] The key question for the court is whether, as the person in charge of a private healthcare facility providing obstetrical and gynaecological care and who 20 has the statutory duty to manage and control the facility, Dr Noor Fidak the second defendant directly owes a tortious duty of care to patients of the facility? [27] Three ingredients must be fulfilled in order to establish the existence of a duty of care:

the injury suffered by the plaintiff must have been reasonably 25 foreseeable; Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 12

there must have been a relationship of proximity between the parties; and

it must be just, fair and reasonable to impose a duty of care on the defendant in question. [28] The above is a distillation of the dicta of Lord Bridge in the decision of the 5 House of Lords in Caparo Industries plc v Dickman7, where it was held: [I]n addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the 10 court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. [29] The observation may be made that the question of foreseeability of damage is considered twice in negligence cases: first when considering the existence of a duty of care, and again when considering the remoteness of 15 damage. [30] It is well settled in law that the director of a public hospital, as the head of the hospital, would directly owe a duty of care to the patients of the hospital: Pengarah Hospital Selayang v Ahmad Azizi Abdullah James8. [31] We see no reason why this same conclusion ought not apply to a person 20 who has been charged with the responsibility to operate and maintain a private healthcare facility. In this case, the injury to the plaintiff is of a nature that would have been reasonably foreseeable given the nature of the services provided by the first defendant. It would be reasonably foreseeable that a patient or 7 [1990] 2 AC 205 8 [2012] 5 MLJ 679, [2013] 3 CLJ 833 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 13 customer of the first defendant would be injured if the second defendant fails to ensure that certain aspects of the operations of the first defendant is not up to the accepted standard. We are satisfied that, as between the plaintiff (as a patient of the first defendant) and the second defendant, there existed sufficient proximity between them as to give rise to a duty of care owed by the second 5 defendant to the plaintiff. It has to be remembered that not only was the Dr Noor Fidak the person in charge of the Gombak Medical Centre (and hence bore the statutory duty under the Private Healthcare Facilities and Services Act 1998 and the Private Healthcare Facilities and Services (Private Hospitals and other Private Healthcare Facilities) Regulations 2006), but she was also the head of the 10 Obstetrics and Gynaecology Department. This, in our considered view, made the proximity between the plaintiff and her all the closer. Finally, we are of the view that it would be just, fair and reasonable for a duty of care to be imposed on the facts of the present case. This is so because it is settled law that a duty would have been imposed by common law on a person holding an analogous position 15 in a public hospital. [32] In summary, we are of the view that there existed a general duty on the part of the Dr Noor Fidak, as the person in charge of the Gombak Medical Centre, to take reasonable care in the running of the hospital facilities to prevent its patients from harm. 20 The Duty to Make Available Paediatric Care [33] While the first and third defendants did not dispute that they owed a general duty of care to the plaintiff, they (and the second defendant) disputed that this duty of care extended to ensuring that there was a duly qualified paediatrician available on standby when deliveries were being undertaken. 25 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 14 [34] The plaintiff alleged that the failure to have a paediatrician available on standby breached the duty of care that was owed by the defendants to the plaintiff. The main retort of the defence was that there was no such requirement imposed on the first defendant, and hence there was no breach of the duty of care that was owed to the plaintiff. 5 [35] The evidence that was relied upon to establish that there was no such duty on the first defendant was the licence issued by the Ministry of Health to the first defendant (see E13/2287 of the record of appeal) under the Private Healthcare Facilities and Services Act 1998 for the period 13 January 2014 until 12 January 2016. It contained no requirement relating to paediatric care. 10 [36] By contrast, the licence issued subsequently, for the period 31 October 2016 until 30 October 2018 contained an express term requiring a paediatrician and anaesthetist to be available at all times: Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 15 [37] It was advanced for the defendants that, since the requirement for a specialist anaesthetist and paediatrician to be available at all times was only imposed after 31 October 2016, the contended absence of a paediatrician at the time of the incident (18 June 2014), even if true, did not constitute breach of the duty of care owed to the plaintiff. 5 [38] In our considered view, even if there did not exist at the time of the incident a statutory duty on the first defendant to ensure that a specialist paediatrician was available at all times, at common law, a duty arose to ensure that there would be timely access to all medical experts (including specialists in anaesthesiology and neo-natal care) as would be necessary to deal with 10 complications that could reasonably be expected to arise in childbirth. [39] For the reasons previously explained, the proximity between the parties is not in issue. The question, in our considered view, is whether the complications that can reasonably be expected to arise as a natural consequence of childbirth require a medical facility providing obstetrics and gynaecology 15 services to have a paediatrician specialising in neo-natal care to be, if not present, then available on standby. The only reasonable and logical answer is in the affirmative. The imposition of such a duty is, in our view, fair, just and reasonable. [40] Surely the defendants were not advancing the argument that all 20 childbirths would be without complications, even if their facility only accepted low-risk patients. There would be myriad of reasons giving rise to complications that could not be anticipated from pre-natal examinations alone. It would be entirely foreseeable that a baby would be delivered with, say, respiratory issues, requiring proper diagnosis and care. 25 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 16 [41] Accordingly, we are of the view that there existed a duty on the first and second defendants to ensure that there would be timely access to all medical experts (including specialists in anaesthesiology and neo-natal care) as would be necessary to deal with complications that could reasonably be expected to arise in childbirth. This was not, however, a duty that was extended to the third 5 defendant, as the physician undertaking the delivery of the baby. BREACH OF THE DUTY OF CARE [42] The contentions of breach, in so far as they were material to the appeal before us, were as follows:

as against the all the defendants:

the failure to procure the availability of a paediatric doctor to either be present, on standby or for consultation during or immediately after delivery; and

(ii) the delay in transferring the plaintiff to a hospital that had neonatal intensive care facilities; and 15

as against Dr Zana Zalinda the third defendant specifically, that the manner in which the delivery was undertaken had breached the applicable standard of care, in particular relating to:

the contended failure to undertake adequate cardiotocography readings;

(ii) the contended failure to correctly diagnose that the baby was in distress; Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 17

(iii) the contended failure to undertake caesarean section delivery as a result of that failure to properly diagnose that the baby was in distress; and

(iv) the allegedly improper technique employed during the vacuum extraction delivery. 5 [43] Each of these contentions of breaches are addressed in turn in the following paragraphs. Failure to Make a Paediatrician Available [44] The evidence showed that there was in fact no paediatrician consulted at the material time. 10 [45] In our view, this was a fact within the particular knowledge of the defendants and they would have borne the evidential burden in accordance with section 106 of the Evidence Act 1950. [46] The pleaded defence initially identified Dr Mohamed Najib Mohamed Unni as the consultant paediatrician available on standby. However, he not only 15 turned out to be out of the country at the material time, but also had never been, at any time, engaged as a paediatric consultant to be available on-call for emergency cases at the Gombak Medical Centre. Dr Zana Zalinda stated at trial that she consulted one of two other paediatricians but could not remember which, and had admitted that she had made no attempt to contact them for the 20 purposes of trial. [47] In our considered view, the defendants failed to discharge their evidential burden to show that they indeed had a paediatrician specialising in neo-natal Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 18 care available whether on-call or for consultation at the time the delivery of the plaintiff was undertaken. This, in our view, constituted a breach by the first and second defendants of their duty of care to the plaintiff. [48] As explained, the court below made no finding on this point, except to state that the issue was academic because of the failure to prove causation. 5 The Contended Delay to Transfer [49] It was advanced for the plaintiff that the delay in transferring the plaintiff to a hospital that had appropriate neo-natal intensive care facilities constituted a breach of the duty that was owed by the defendants to the plaintiff. [50] The plaintiff was born at midnight on 17 June 2014. Her Apgar score was 10 3 at 1 minute after birth, 5 at 3 minutes and 6 at 10 minutes. She was recorded to be tachypnoeic (breathing rapidly) at 1.30am and had developed grunting by 3.00am. [51] She was only transferred to Hospital Pusrawi at 6am. [52] Both the experts in this case concurred that there was a delay on the part 15 of the defendants to refer the plaintiff to a facility that had a neo-natal intensive care unit, or at least to have the plaintiff to be monitored, assessed and managed by a paediatrician within the first six hours of birth. [53] This was the view expressed by the plaintiff’s expert, Dr Ong Hean Choon: In my opinion, in the absence of a paediatrician or neonatal paediatrician to care for 20 the moderate to severely asphyxiated baby, and absence of an in-house NICU Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 19 (neonatal intensive care unit ), the baby should have been referred out much earlier by the doctors at GMC.9 [54] Dr Roslan’s, the third defendant’s expert, stated the following in his expert report:

Foetal outcome 5 The baby was delivered in poor condition with an Apgar score of 3/5/6 and developed compromised respiratory / breathing function. The baby was attended to by the obstetrician and was never seen or assessed by a paediatrician. The baby was only later referred to a hospital with a paediatrician at 6 hours of birth. My primary concern was how the baby was monitored and managed without a paediatrician and 10 proper NICU care in the period before the referral.

Conclusion It is my speculation that the insult to the baby occurred during the traumatic delivery and inadequate neonatal management, which was the delayed attention by a paediatrician.10 15 [55] In cross-examination, Dr Zana Zalinda explained that she had started calling tertiary hospitals at around 2.30am and was unable to get a government hospital which would accept the plaintiff. It was only after she obtained the agreement of the father to ask a private hospital that she was able to secure a place at Pusrawi at about 5.00 am in the morning11. Even after that there was 20 difficulty in securing an ambulance, such that the patient only arrived at Pusrawi an hour later, at 6.00am in the morning. [56] In our considered judgment, the version of events painted by Dr Zana may well have indicated that she had tried all she could have to secure a place for the plaintiff at a properly-equipped facility, but the fact that there did not appear to 25 have pre-arranged procedures (for example Dr Zana testified that she had to hunt down mobile numbers of the medical officers of the neonatal intensive care 9 See E57/78 10 E57/91 11 E9/980 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 20 units at the receiving hospitals) indicated that there was a system failure at the Gombak Medical Centre. Dr Zana testified: At that time, I dah hilang tak tahu mana lagi nak tanya, then I consulted the father, I have to cari private hospital. Dia cakap okay for that. [57] The situation should never arise that the attending physician “tak tahu 5 mana lagi nak tanya”. There should be documented procedures for escalation if public hospitals are unable to accept a patient. A doctor should not be at wits end, as suggested by the testimony of the third defendant Dr Zana Zalinda. [58] Counsel for Dr Noor Fidak made the point that none of the plaintiff’s experts were experts in neo-natal care, implying somehow that the value of their 10 testimonies was accordingly limited. We could not agree, as the point of contention was not the applicable standard of care to be discharged in providing neo-natal care to the plaintiff, but rather whether access to such care had been provided in a reasonably timely manner. [59] We are of the view that there had been an unacceptable delay in 15 transferring the plaintiff to a hospital that had neo-natal intensive care facilities and that this delay breached the duty of care that was owed by the first and second defendants to the plaintiff. In as far as Dr Zana Zalinda the third defendant, we are satisfied that she had done all that she could have in the circumstances to ensure that the plaintiff received the appropriate care in a 20 timely manner. The Contended Failure to Diagnose Fetal Distress: Cardiotocography & Meconium Stain [60] A cardiotocogram allows the heart rate of the fetus to be recorded over a period of time. By contrast, a doppler fetal heat rate monitor (such as a Daptone 25 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 21 device) only provides a snapshot of the current heart rate, and does not offer the ability to chart the heart rate for analysis. [61] It was advanced for the plaintiff that there had not been adequate cardiotocography readings taken to monitor fetal heart rate, in particular after light meconium-stained liquor was detected. Criticism was also levelled at the 5 doctor’s notes, which was said to record the expression “CTG slight acceptable”. The plaintiff’s mother was placed in the left lateral position at about 8.00pm and 9.15pm on 17 June 2014—counsel for the plaintiff suggested that this would only have been done had fetal distress been detected. [62] We are of the view that the criticism of the third defendant on the use of 10 cardiotocography readings was misplaced. It has been held in the case of A Minor v Pengarah Hospital Tuanku Ja’afar12 that the guidelines applicable to government hospitals only require a cardiotocography trace to be recorded for 20 minutes on admission of the patient, and that doppler fetal heart rate readings may be taken thereafter. We see no reason why a higher standard 15 should apply to private hospitals such as that operated by the first defendant. [63] Dr Zana the third defendant explained at trial that she had not recorded “CTG slight acceptable” in the doctors notes, but instead “CTG still acceptable”. It appeared that the doctor’s notes had been transcribed before it was sent to the Dr Ong, the plaintiff’s expert. 20 [64] Having examined the doctor’s notes at E19/1402 of the record of appeal, we would agree with Dr Zana. She had recorded “CTG still acceptable”, and there must have been a transcription error when the doctor’s notes were typed out: 12 [2024] 10 CLJ 22, [2025] 7 MLJ 422 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 22 [65] In any event, the fact that Dr Zana recorded that the cardiotocography readings were still acceptable showed that the heart rate of the baby was still being monitored throughout the second stage of labour via a cardiotocogram. We are of the further view that, while the detection of light meconium stained 5 liquor may be one of the indications of fetal distress, based on the evidence received at trial it is not definitive and may even be present in a normal pregnancy. In addition, there is no applicable guideline that suggests that an emergency caesarean section ought to be carried out where light meconium stain is detected. On the contrary, in the Handbook of Obstetrics Guideline 10 issued by the Ministry of Health13, surgical intervention is suggested in cases of moderate and thick meconium stained liquor. [66] In as far as the fact that the mother had been placed in the left lateral position was concerned: it was never the plaintiff’s case that the third defendant had in fact detected fetal distress but had failed to take the appropriate steps. 15 The plaintiff’s position had always been that Dr Zana had failed to detect fetal distress in the plaintiff. The plaintiff ought not be permitted to advance, in the appeal before us, an argument premised upon an unpleaded case. Caesarean Section [67] For the same reasons explained in the preceding paragraphs, the 20 contention that the third defendant ought to have made a decision to undertake a caesarean section to deliver the baby was not made out on the evidence, as 13ttps://www.moh.gov.my/moh/resources/Penerbitan/Perkhidmatan%20OnG%20&%20Ped/O%20&%20G/FIN AL_DRAF_LAYOUT_Handbook_of_Obstetrics_Guideline_PDF.pdf Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 23 there was nothing to suggest that surgical intervention was necessary in the circumstances of this case. The fact that the third defendant had not proceeded with a caesarean section delivery did not constitute a breach of the duty of care owed by her to the plaintiff. Vacuum Extraction 5 [68] Much was made in the submissions as to whether the third defendant had twice attempted vacuum extraction, or whether she had to reattach the suction cup of the vacuum extractor but had in fact only attempted vacuum extraction once. For her part, Dr Zana Zalinda testified that she had attached the suction cup twice, but only pulled once. 10 [69] The trial judge was of the view—and we agree—that the dispute of fact was academic, because either way, there would not have been breach of the applicable standard of care. [70] The publication entitled Vacuum Extraction published by the US National Library of Medicine14 recommends no more than three set of pulls, and no more 15 than three cup detachments or pop-offs, with total vacuum application time limited to 30 minutes. The relevant passage states: Clinical Significance The decision to continue with operative vaginal delivery should continuously be re-evaluated during the delivery progresses. If there is no descent, further attempts 20 should be discontinued and cesarean section considered. Rocking motions and applying torque to achieve rotation should be avoided. The maximum time to safely complete a vacuum extraction and the acceptable number of detachments are unknown. It is recommended that vacuum-assisted deliveries be achieved with no more than three sets of pulls and a maximum of two 25 14 See footnote 1, ante Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 24 to three cup detachments or pop-offs. The total vacuum application time should be limited to 20 to 30 minutes. Sequential application of the vacuum and the forceps or vice versa is discouraged due to a higher risk of fetal and maternal injury. [71] We conclude that there was no negligence on the part of Dr Zana Zalinda 5 in undertaking the delivery of the plaintiff. CAUSATION [72] The High Court dismissed the entire claim on the premise that the condition of the plaintiff was not caused by the negligence of the third defendant. As explained, this did not deal with the entire pleaded case, as clearly 10 both the first and second defendants owed duties of care to the plaintiff and her mother. Thus, if there was a material contribution of the injuries suffered by reason of the delay in procuring the appropriate post-natal care, there would have been an actionable breach. [73] The fact that cerebral palsy develops in utero in 85-90% of cases due to 15 congenital factors appeared to have weighed heavily in the mind of the learned judge in the court below. There were, however, critical items of evidence that did not appear to be considered by the High Court:

the low Apgar score established that the baby suffered from respiratory issues, and hypoxia is one of the causes for cerebral palsy;

neither the plaintiff’s mother nor the plaintiff herself possessed any of the risk factors that indicated congenital cerebral palsy; and

the unanimous view of both the experts was that the plaintiff’s cerebral palsy developed as a result of the complications at birth. Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 25 [74] Taken together, these factors establish that the cerebral palsy suffered by the plaintiff was not congenital, and had in fact arisen due to hypoxia in the course of birth. We have seen that the evidence showed that, on balance, that Dr Zana Zalinda the third defendant had not breached her duty of care to the plaintiff. That of itself would not be sufficient to absolve the first and second 5 defendants of liability in this case. We are of the view that, their failure to provide timely access to paediatric care materially and adversely contributed to the plaintiff’s condition. [75] This conclusion is explained in the paragraphs [80] to [95] below. Causation and the But For Test 10 [76] The case of Bonnington Castings v Wardlaw15 provides authority for the proposition that, where the act of a defendant was a material contributing cause to the injury suffered by the complainant, the defendant could be made liable for his tortious acts, even though it could not be said that the defendant’s actions was the sole cause of the injury. 15 [77] Bonnington Castings was considered and applied in the Federal Court decision of Wong Siew Ying v Gunung Tunggal Quarry & Construction16. I can do no better than to reproduce the relevant passages from the judgment of Richard Malanjum CJ (Sabah & Sarawak): [30] For the plaintiff to succeed in a claim for negligence, it is essential for him to 20 prove among others that the injury caused to him was due to the defendant's negligence. There must be link between the wrongdoing and the damage caused. The burden of proving this link is upon the plaintiff — see Bonnington Casting Ltd v Wardlaw. In establishing this link between wrongdoing with injury there can be other possible causes. In such a situation, some courts have adopted the 'but for' test. Here 25 the approach is not to identify all of the possible causes of a particular incident but 15 [1956] 1 All ER 615 16 [2011] 2 MLJ 1 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 26 focus on the effective cause of the resulting damage in order to assign responsibility for that damage caused. As confirmed by the authoritative text of Clerk & Lindsell on Tort (17th Ed) at paras 2–12, in majority of the cases this 'but for' test in practice operates well. But in situations where there are combined causes or several causes contributing to the wrongdoing then this 'but for' test may not be a satisfactory 5 approach to determine causation. To deal with this, Lord Reid in Bonnington Casting Ltd v Wardlaw enunciated: It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is material contribution must be a question 10 of degree. A contribution which comes within the exception de minimis non curat lex (the law does not concerns itself with trifles) is not material, but I think that any contribution which does not fall within that exception must be material. [31] This statement is made in the light of these facts: The plaintiff had worked for 15 eight years in a foundry producing steel castings. He contacted pneumoconiosis through inhaling the air in the foundry which contained silica dust. A source of the dust came from pneumatic hammers, one which was operated by the plaintiff. The defendant did not provide any protection to the plaintiff against this. But there were also dust which polluted the factory coming from operations conducted at swing 20 grinders in the foundry. The ducts of the dust-extraction plant for these grinders were not kept free from obstruction as required by a statutory regulation. The defendant admitted that they were in breach of this regulation but maintained that there was no evidence adduced by the plaintiff to show that the noxious dust in the general atmosphere of the foundry came more from the pneumatic hammers than the swing 25 grinders. [78] After explaining the scope of the principle of causation in Bonnington Castings, the Federal Court explained that where there were multiple factors contributing to the injury suffered, the Bonnington Castings test would be more appropriate than the “but for” test: 30 [36] In the light to these authorities, we are of the view that the 'but for' test is not the exclusive test to be applied to determine causation of the injury. It can still be applied but not in circumstance when there are two or more acts or events or factors that could or contribute to the injury of the plaintiff. This instant case is a case in point where evidence is established that there are a multiple of factors that could 35 bring about the injury to the plaintiff. And to decide whether there is causation in these circumstances the approach of Lord Reid in Bonnington Casting Ltd v Wardlaw: whether any of these acts or events or factors has materially contributed to the plaintiff's injury should be adopted. What is a material contribution must be a question of degree. This is for the court to decide but certainly anything that is trifle 40 is not material. As Lord Reid in the same case expounded: 'contribution which comes Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 27 within the exception of de minimis non curat lex (the law does not concerns itself with trifles) is not material.' [79] The discussion in the preceding paragraphs are pertinent in the context of the present case, because it shows that even if the event that precipitated the injury arose through no fault of the defendants, the failures by one or more of 5 the defendants to properly address the situation subsequently may still establish liability on their part, if those failures materially contributed to the plaintiff’s condition. The Failure to Account for the Apgar Score [80] The Apgar score for the plaintiff was 3-5-6 at one, five and ten minutes 10 after birth respectively, which the experts agreed was poor. The poor Apgar score meant that the baby suffered from respiratory issues at the time of birth, suggesting that there was hypoxia from the circumstances of the delivery. Thus, the poor Apgar score indicated delivery trauma. The existence of delivery trauma would have been a material consideration in determining whether the 15 cerebral palsy and hypoxic ischaemic encephalopathy suffered by the plaintiff happened in the course of delivery. This was not taken into account by the court below in its analysis of causation, and is, in our view, an appealable error. [81] Put another way, the statistics may well indicate that cerebral palsy develops from congenital factors in 85-90% of cases. However, in the present 20 case, it was established that the plaintiff had respiratory distress syndrome, due to the uncontroverted evidence of the low Apgar score. This, in our view, supported the conclusion that the condition from which the plaintiff suffers was not congenital, but acquired in the course of delivery due to deprivation of oxygen. 25 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 28 [82] The fact that a baby may be born with a low Apgar score does not mean that he or she is certain to suffer from brain damage—much depends on the steps that are immediately taken after birth. Congenital vs Acquired Cerebral Palsy [83] At trial, a document entitled Causes and Risk Factors of Cerebral Palsy 5 published by the Centers for Disease Control and Prevention was adduced by the first defendant. This document lists the risk factors for congenital cerebral palsy. They include: low birthweight, premature birth, multiple babies being carried at the same time, fertility treatment, in utero infections and medical conditions of the mother such as thyroid problems, intellectual disability and seizures. None 10 of these apply to the plaintiff or her mother. [84] This fact supports the conclusion that the cerebral palsy of the plaintiff had not developed in utero but rather arose from the circumstances of her birth. Consensus of the Experts [85] The medical experts were in consensus that the cerebral palsy suffered by 15 the plaintiff was caused by the circumstances of her delivery and the delay in providing adequate neonatal intensive care. [86] Dr Roslan, the third defendant’s expert, agreed that insult to the baby occurred during traumatic delivery. In his expert report (see E19/1365), he stated: 20 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 29 [87] He uses the word “speculation” in his report, and under-cross-examination, he explained that he meant “guess”. Now, the role of an expert is to provide his professional opinion based on the established facts. Given that he has found it fit to include this sentence in the concluding section of his report, the court can only conclude that this was an expression of his professional 5 opinion. [88] The use of the word “insult” also connotes that there was injury to the plaintiff as a result of the delivery. Its meaning, as used in medicine, is defined in the Shorter Oxford Dictionary to mean “an action or process causing injury to the body or disturbance of its normal functions; the injury or disturbance so 10 caused; trauma”. This effectively precludes the cause of the plaintiff’s condition being the result of a congenital defect. [89] Dr Ong’s report explained his analysis of the low Apgar score in the following manner: After delivery, the baby was thus subjected to prolonged asphyxia, leading to 15 prolonged partial hypoxia, or intermittent hypoxia, both of which have been known to result in cerebral damage and cerebral palsy. [90] In these circumstances, we consider that it would not have been open to the High Court to depart from the concurring views of the medical experts, without explaining the reasons for doing so. 20 [91] The existence of unchallenged medical opinions does not mean that a trial court is bound to accept the expert evidence of the medical practitioners. A court may still make a finding that is contrary to unchallenged medical opinions, if there are other facts that would entitle it to do so. Wee Chong Jin CJ in the Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 30 Singapore Court of Appeal case of Sek Kim Wah v PP17, referred to the decision of R v Byrne18 and stated as follows: Thus, the verdict as to abnormality of mind is plainly a finding of fact which must be founded on all the evidence which evidence of course includes medical opinion. Even where such medical opinion is unchallenged, the trial Judges would be perfectly 5 entitled to reject or differ from the opinions of the medical men, if there are other facts on which they could do so. [92] This principle in Sek Kim Wah was cited with approval by the Malaysian Court of Appeal in PP v Muhamad Suhaimi Abdul Aziz19. [93] While a court may depart from the unchallenged evidence of experts, such 10 a departure must be based on sound grounds: see Dr. Lo Sook Ling Adela v Au Mei Yin Christina & Anor20 where the Singapore Court of Appeal in discussing the evidence of a professor of botany on the age of a belimbing tree in a dispute involving a claim of adverse possession stated: It was true that the age of the Belimbing tree, being 20 years old, was only an 15 estimate. Because it was an estimate, the trial judge could not accept the evidence of Prof Rao. In law, while a judge is not obliged to accept the opinion of an expert, even in a situation where there is no contrary expert evidence, such rejection must be based on sound grounds: see Saeng-Un Udom v PP [2001] 3 SLR 1 at 8-9. We did not think just because the age given was an estimate, that that in itself was a good 20 ground to reject the expert opinion. In the realm of expert evidence, it invariably involves a matter of judgment. This was a scientific issue outside the learning of a judge. [Emphasis added] [94] The Court of Appeal in Malaysia in the case of Majuikan Sdn Bhd v Barclays 25 Bank plc21 cited with approval the passage from Dr Lo Sook Ling Adela v Au Mei 17 [1988] 1 MLJ 348 18 [1960] 44 Criminal Appeal Rep. 19 [2004] 1 CLJ 378 20 [2002] 1 SLR 408 21 [2015] 1 MLJ 171, [2014] 9 CLJ 337 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 31 Yin Christina above, and formulated the applicable principles in the following manner: We are in agreement with these principles and in our view, a judge who is not an expert himself, should defer to expert opinion unless that evidence is obviously indefensible and is not supported by the basic facts of the case. Where there are 5 conflicting expert opinions, the judge is of course entitled to bring to bear his own judicial appreciation of the matter, and choose one over the other, but where there is only one expert opinion, he should not as a rule reject that opinion outright without judiciously considering whether it is obviously indefensible and unsupported by the basic facts of the case. 10 [95] We are thus constrained to find that the finding of fact by the trial judge that causation has not been proven was plainly wrong, as these critical items of evidence were not taken into account in the analysis of the facts in the grounds of judgment of the High Court:

the low Apgar score established that the baby suffered from 15 respiratory issues, and hypoxia is one of the causes for cerebral palsy;

neither the plaintiff nor her mother possessed any of the risk factors that indicated congenital cerebral palsy; and

the unanimous view of both the experts was that the plaintiff’s cerebral palsy developed as a result of the complications at birth. The 20 High Court could not have come to a contrary finding without concluding that those opinions were obviously indefensible and unsupported by the basic facts of the case. [96] In our considered judgment, the breach of duty on the part of the first and second defendants to provide timely access to neo-natal intensive care facilities 25 materially and adversely contributed to the plaintiff’s condition. As explained, this was the unanimous view of the experts who testified in this case. Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 32

[97] For the reasons explained in this judgment, there is judgment as follows:

we allow the plaintiff’s appeal against the first and second defendants;

the plaintiff’s appeal against the third defendant is dismissed;

we direct that the case be sent back to the High Court for assessment 5 of damages, to be heard before another judge of the High Court;

the liability of the first and second defendant for damages and interest on any such award of damages to the plaintiff is joint and several;

the first and second defendants shall pay pre-judgment interest on the principal sum of damages assessed at a rate of 5% per annum from 7 10 February 2020 until the date of the order of the High Court ascertaining the damages payable;

the first and second defendants shall pay post-judgment interest at a rate of 5% per annum on the sum of:

the principal sum of damages ascertained; and 15

(ii) the pre-judgment interest, from the date of the order of the High Court ascertaining damages until full satisfaction;

the first and second defendants shall pay to the plaintiff costs here and below of RM100,000 (liability for such costs to be joint and several); 20 Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 33

the plaintiff shall pay to the third defendant costs of this appeal in the amount of RM40,000; and

all such costs shall be subject to an allocatur. [98] The order of the High Court is accordingly set aside to the extent above. [99] The liability of the first defendant Gombak Medical Centre to the plaintiff 5 are in respect of duties that the first defendant owed directly to the plaintiff. As a consequence, the notice of contribution and indemnity by the first defendant against the second and third defendant is dismissed. 12 November 2025 10 Azizul A Adnan Judge of the Court of Appeal Malaysia 15 For the appellant: Mr Manmohan S Dhillon, Ms Aaika Zulaikha Mohd Yusop & Ms Abigail Sarah Kumar—Messrs PS Ranjan & Co For the first respondent: Mr Harjinder Singh Sandhu & Ms Izzah Shakirah Mohd Sukor—Messrs Akberdin & Co For the second respondent: Ms Chrishanthini AR Sebastiampillai & Mr Narandra Kangatharan—Messrs S Chrishanthini & Co Nur Fuziatun Mohd Fadzli v Gombak Medical Centre 34 For the third respondent: En Riza Makhzan Arifin—Messrs Sharifah & Associates