XXXX v Kerajaan Malaysia (KA-21NCvC-7-05/2022)

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DR SHIRLENE YEOH ZHXEM PHING JURURAWAT NOR RAHAYU …DEFENDANTS GROUND OF JUDGMENT (Assessment of Damages) A.

This is an action brought by the Plaintiff against the Defendants seeking various claims for damages. It is essentially a claim of medical negligence. The suit was filed on 10.5.2022. It was initially heard by my predecessor. At that juncture the 1st Defendant the Government of Malaysia (for convenience 09/05/2026 10:41:00 KA-21NCvC-7-05/2022 Kand. 121 S/N 7vT9cwdd80yUnZYwLUwNw hereafter referred to as defendant) as the owner and principal of Sultanah Bahiyah Hospital admitted liability on 11.12.2024 and the suit against the 2nd to 11th Defendant was withdrawn. The trial proceeded on quantum only with witnesses from both sides completed giving evidence. During closing arguments, the learned judge hearing the matter recused himself. In the result this matter came before me. Subsequently there was an application made by the Plaintiff to re-call of some witnesses to give evidence on specific issues which I will discuss further in this judgment.

The medical negligence which became the subject matter of this action relates to the Plaintiff’s birth at Hospital Sultanah Bahiyah, Alor Setar, Kedah, on 15.5.2017.

To go back in time to understand the chronology, it all started on 13.5.2017. On that day the Plaintiff’s mother attended Hospital Sultanah Bahiyah when she had contractions. The long and short of it, she was advised to return when contractions increased. On the next day, 14.5.2017, at approximately 7.45 a.m., the Plaintiff’s mother returned to the Hospital. She was examined. It was found that the cervix to be dilated to 2 cm. A vaginal examination was conducted at 11.30 p.m. after CTG readings indicated Type 1 decelerations between 11.07 p.m. and 11.20 p.m. Subsequently, the Plaintiff’s mother was transferred to the labour room.

On 15.5.2017, at 12.27 a.m., a further vaginal examination revealed cervical dilation of 5 cm. Artificial rupture of membranes was performed, and clear fluid was observed. CTG readings S/N 7vT9cwdd80yUnZYwLUwNw again indicated Type 1 decelerations between 1.51 a.m. and 2.10 a.m. At 2.45 a.m., the Plaintiff’s mother was examined and found to have full cervical dilation, with the foetal head descending to station-1. The foetus was also observed to be in the occipital-posterior position.

The Plaintiff’s mother underwent delivery by means of vacuum-assisted birth. However, during the course of the delivery, five vacuum tractions were performed. The first three tractions were carried out by a medical officer, but the Plaintiff was not delivered, and only minimal descent of the foetal head was achieved. The Plaintiff was eventually delivered after two further tractions by another medical officer at 3.09 a.m. Examination of the Plaintiff revealed an Apgar score of 1 at one minute after birth, 3 at four minutes, and 5 at ten minutes. The Plaintiff’s heart rate had fallen to 60 beats per minute, necessitating resuscitation.

It is not in dispute that as a consequence of the Defendants’ negligence in the management of the Plaintiff’s birth process, the Plaintiff was delivered and subsequently diagnosed with Hypoxic Ischaemic Encephalopathy (HIE) Stage V, amounting to severe brain injury.

The Plaintiff’s counsel characterised the episode as ‘catastrophic injury’ to the Plaintiff (Embun), who sustained severe and irreversible brain damage at birth. S/N 7vT9cwdd80yUnZYwLUwNw

It is not in dispute that Embun’s condition is permanent and that irreversible. Put it simply, she will never recover from her injuries. She has been, and will remain, wholly dependent upon others for every aspect of her daily existence. Nonetheless, there is some scope for improvement in her functional abilities and overall condition. To achieve meaningful improvement, compensation is required to ensure that her carers can provide the necessary care, treatment, and therapies. The claims encompass, among other matters, Embun’s life expectancy and the future care and treatment that she is entitled.

Both parties are on common grounds that the object and that the award of damages must be that which sufficient to meet Embun’s ongoing needs, now and the future.

Before going into the head of damages and giving my anxious consideration to the rival submission it is appropriate at this juncture for me to advert to the issue relating to the Plaintiff’s application for the re-call of witnesses. I am of the considered view that the application meets the requirements of section 138 of the Evidence Act 1950 as it is necessary for the issues to be brought into focus especially in relation to the specificity of the heads of the damages. I had thus allowed to the witnesses to be re-called.

The re-call of witnesses was on two specific issues, namely: - S/N 7vT9cwdd80yUnZYwLUwNw

Embun’s right to receive compensation for private healthcare treatment and rehabilitation;

(ii) and whether Embun should be in the “tube-fed” category or “fed-by-others” category when estimating her life expectancy.

The Plaintiff’s witnesses comprised her mother, Puan Norlina binti Ramlee (PW1), and her expert on quantum, Dr Kavitha Uma Ratnalingam, a consultant rehabilitation physician (PW2). The sole witness for the Defendant was their expert on quantum, Dr Ooi Ai Lee, also a consultant rehabilitation physician (DW1).

Having given this matter my most anxious and careful consideration I awarded special damages and general damages summarised as follows: TABLE OF DAMAGES, COSTS AND INTEREST Item Plaintiff Defendant Court Special Damages (15 May 2017 to 10 May 2022 – 60 months)

the hospital and medical expenses 10,000 Not entitled (Free of charge at the Government Hospital) Not allowed

the travel and other incidental expenses 30,000 708 500 x 60 month S/N 7vT9cwdd80yUnZYwLUwNw (RM 500 per month for 60 months) (Expenses of travelling by train from Alor Setar to Kuala Lumpur) 30,000.00

the cost of purchasing a car 36,000 Not addressed 36,000.00

the value of care provided by family members (RM 2,500 per month for 60 months) 150,000 Not entitled (No documentary evidence) 1,500 x 60 month 90,000.00

the cost of therapies (RM 1,500 per month for 60 months) 90,000 Not entitled. (No documentary evidence) 1,500 x 28 month 42,000.00

the cost of accommodation when travelling for therapies in Penang (RM 1,000 per month for 60 months) 60,000 Not addressed 500 x 28 month 14,000.00

the cost of renovations to the home in Kedah 4,000 Not addressed 4,000.00

the additional cost of holidays 10,000 Not addressed 1,000 x 5 years 5,000.00

the cost of milk formula (RM 700 per month for 60 months) 42,000 12,517-50 (Entitled for cost for 60 months: 11,697-23) (Entitled for cost from May 2022 to May 2025: 50 x 10 = 500 x 60 month = 30,000.00 S/N 7vT9cwdd80yUnZYwLUwNw RM820-27 (Entitled for cost in 2023 which is supported by

the cost of special food, supplements, vitamins, homeopathic medicine, essential oils, massage oils, minyak angin, magnesium spray, and etc (300 per month for 60 months) 18,000 Not entitled (provided for free by Hospital Sultanah Bahiyah) (no recommendation by any expert.) (Plaintiff’s own desire) 18,000.00

the cost of equipment, including rental of a CPAP machine and an air purifier 10,000 8,266.12 (Cost of Wheelchair was covered by Zakat Kedah (refer Q&A No. 42) (Remainder Cost for CPAP Machine was covered by the Government Hospital (refer Bundle D page 177-178) (Plaintiff is only entitled for 350 as to cost for CPAP Machine as co 8,266.12 S/N 7vT9cwdd80yUnZYwLUwNw payer) (Air purifier was not addressed)

the cost of diapers, wipes and other consumables (500 per month for 60 months) 30,000 1,950-64 (Based on receipts given) 500 x 60 month = 30,000.00

the solicitor and client cost of obtaining pre-action discovery of medical records 7,420 7,420 7,420.00 Subtotal 497,420 30,862.26 314,686.12 Pre-Trial Damages (11 May 2022 to date of Judgment, say 25 Feb 2026 – 45 months)

the travel expenses (500 per month for 39 months) 19,500 Not addressed 500 x 45 month 22,500.00

the value of care provided by family members (RM 2,500 per month for 39 months) 97,500 Not addressed 1,500 x 45 month = 67,500.00

the cost of therapies (1,500 per month for 39 months) 58,500 Not entitled 1500 x 45 month = 67,500.00

the cost of the cost of accommodation when travelling for therapies in Penang (1,000 per month for 39 months) 39,000 Not addressed 500 x 45 month = 22,500.00 S/N 7vT9cwdd80yUnZYwLUwNw

the cost of milk formula (RM 700 per month for 39 months) 27,300 Addressed in No.9 500 x 45 month = 22,500.00

the cost of supplements, vitamins, homeopathic medicine, essential oils, massage oils, minyak angin, magnesium spray, and etc (300 per month for 39 months) 11,700 Not entitled 300 x 45 month = 13,500.00

the cost of equipment, including rental of a CPAP machine and an air purifier (200 per month for 39 months) 7,800 Not addressed Not allowed. Given one off at item 11.

the cost of diapers, wipes and other consumables (RM 500 per month for 39 months) 19,500 Not addressed 500 x 45 month = 22,500.00 Subtotal 280,800.00 Not addressed 238,500.00

the pain and suffering and loss of amenities of life 500,000 350,000 400,000.00

Aggravated Damages 400,000 Not entitled. The Plaintiff need to prove in court Not allowed

Life Expectancy 43 years (Life expectancy of 40 years, with 30 years (30 year - estimation of US life expectancy 33 years as suggested by PW2. S/N 7vT9cwdd80yUnZYwLUwNw an additional 3 years following the favourable economics point in Robshaw) based on Table III, and taking into account the different of life expectancy of normal people in

Multiplier 35 years (Plaintiff’s life expectancy of 43 minus her current age of 8) 15 years (30 year – the Plaintiff’s current age of 8 and minus 1/3 for contingencies. (30-8) - (1/3) =15 years) 25 years (33 – 8) Future General Damages (Equipment, Appliances, etc)

the cost of purchasing a double fowler hospital bed 22,000 (5,500 every 10 years with a total of 4 purchases) 11,000 (5,500 every 10 years with total of 2 purchases) 5,500 x 2 purchases = 11,000.00

the cost of purchasing an alternating pressure mattress 17,500 (2,500 every 5 years with a total of 7 Not entitled 2,500.00 every 5 years RM2,500 x 5 S/N 7vT9cwdd80yUnZYwLUwNw purchases) purchases = 12,500.00

the cost of purchasing wedges for lower limb positioning 17,500 (500 every year) 7,500 (500 per year with a total of 15 purchases) 500 x 25 yrs =

the cost of purchasing orthotic device for hands and lower limbs 175,000 (5,000 every year) 75,000 (RM5,000 per year with a total of 15 purchases) 5,500.00 x 12.5 purchase = 62,500.00

the cost of purchasing powered wheelchair tilt-in-space with customized seating system 56,000 (8,000 every 5 years, with a total of 7 purchases) 15,000 (5,000 every 5 years with a total of 3 purchases) 8,000.00 x 5 purchases = 40,000.00

the cost of change of the customized cushion in the wheelchair 14,000 (3,500 every 10 years, with a total of 4 purchases) 3,500 x 2 (2 changes between 5 – 15 yrs) 3,500 x 2 purchases = 7,000.00

the cost of purchasing a mobile electric hoist 40,000 (10,000 every 10 years, with a total of 4 purchases) 12,000 (6,000 every 10 years, with a total of 2 purchases) 6,000 x 2 purchases = 12,000.00 S/N 7vT9cwdd80yUnZYwLUwNw

the cost of purchasing portable ramps 5,600 (800 every 5 years, with a total of 7 purchases) 2,400 (800.00 every 5 years with total of 3 purchases) 800 x 5 purchases = 4,000.00

the cost of purchasing a mobile standing frame (electrically powered) 35,000 (5,000 every 5 years, with a total of 7 purchases) 15,000 (5,000 every 5 years, with a total of 3 purchases) 5000 x 5 purchases = 25,000.00

the cost of purchasing a padded and reclining commode wheelchair / shower trolley 14,000 (2,000 every 5 years, with a total of 7 purchases) 6,000 (2,000 every 5 years, with a total of 3 purchases) 2,000.00 x 5 purchases = 10,000.00

the cost of purchasing a pulse oximeter 2,100 (300 every 5 years, with a total of 7 purchases) 900 (300 every 5 years with a total of 3 purchases) 300 x 5 purchases = 1,500.00

the cost of purchasing a digital blood pressure machine 1,750 (250 every 5 years, with a total of 7 purchases) 750 (250 every 5 years with a total of 3 purchases) 250 x 5 purchases = 1,250.00 S/N 7vT9cwdd80yUnZYwLUwNw

the cost of purchasing a stethoscope 1,750 (RM 250 every 5 years, with a total of 7 purchases) Not entitled and not suitable to be handle by non-medical personal. No award

the cost of purchasing a digital ear thermometer 1,050 (150 every 5 years, with a total of 7 purchases) 450 (150 every 5 years with a total of 3 purchases) 150 x 5 purchases =

750.00 Subtotal 403,250 146,000 200,000.00 Future Damages (Medical, Therapy and Rehabilitation Needs)

the cost of consultation with rehabilitation physician 855,400 (235 twice a week. 470 per week x 52 weeks for 35 years) Not entitled. (Free in Government Hospital) No award

the cost of consultation with a paediatrician (from the age of 8 to 18: 10 years) 9,400 (235 every 3 months. 940 per year for 10 years) Not entitled. (Free in Government Hospital) No award S/N 7vT9cwdd80yUnZYwLUwNw

the cost of consultation with paediatric neurologist (from the age of 8 to 18: 10 years) 4,700 (235 twice a year. 470 for 10 years) Not entitled. (Free in Government Hospital) No award

the cost of consultation with neurologist (from the age of 18 to 43: 25 years) 11,750 (235 twice a year. 470 for 25 years) Not entitled. (Free in Government Hospital) No award

the cost of consultation with an orthopaedic surgeon 2,350 (235 for 10 sessions) Not entitled. (Free in Government Hospital) No award

the cost of consultation with a general surgeon 16,450 (235 twice a year) (470 per year for 35 years) Not entitled. (Free in Government Hospital) No award

the cost of dental consultation 16,450 (235 twice a year) (470 per year for 35 years) Not entitled. (Free in Government Hospital) No award S/N 7vT9cwdd80yUnZYwLUwNw

the cost of consultation with a respiratory physician 16,450 (235 twice a year) (470 per year for 35 years) Not entitled. (Free in Government Hospital) Not allowed

the cost of consultation with a dietician 8,930 (235 twice a year for 3 years (1,410), and then once a year for 32 years (RM 7,520) Not entitled. (Free in Government Hospital) Not allowed

the cost of consultation with an ophthalmologist 8,225 (235 once a year for 35 years) Not entitled (Free in Government Hospital) Not allowed

the cost of consultation with an ENT physician 16,450 (235 twice a year for 35 years) Not entitled (Free in Government Hospital) Not allowed

the cost of physiotherapy 397,800 (150 twice a week from 8 to 16 years old (8 years) = 124,800. 150 once a week from 16 to 43 years old (27 years) = Not entitled (Free in Government Hospital) Not allowed S/N 7vT9cwdd80yUnZYwLUwNw

the cost of occupational therapy 159,600 (150 every week from 8 to 16 years old (8 years) = 62,400.00 150 twice a month from 16 to 43 years old (27 years) = 97,200.00 Not entitled (Free in Government Hospital) Not allowed

the cost of educational toys, games and books 17,500 (counsel proposes) (500 per year for 35 years) Not entitled. Not allowed

the cost of speech and language therapy 30,000 (400 for the initial assessment. + 200 twice a month for 2 years = RM 9,600. + 200 per month from 10 to 12 years old (2 years) = 4,800 Not entitled (Free in Government Hospital) Not allowed S/N 7vT9cwdd80yUnZYwLUwNw + 200 twice a year from 12 to 43 years old (31 years) = 12,400)

the cost of counselling for parents 17,500 (250 twice a year for 35 years) Not entitled (Free in Government Hospital) Not allowed

the cost of hospital admissions 100,000 (calculated at the rate of 10,000-00 per admission, for 10 admissions) Not entitled (Free in Government Hospital as Embun is a OKU card holder.) Not allowed

the cost of yearly x-ray for hip and spine surveillance 1,280 (RM 160 per year from 8 to 16 years old (8 years)) Not entitled (Free in Government Hospital) Not allowed

the cost of surgery for tendon releases or osteotomy for limb contractures 15,000 Not entitled (Free in Government Hospital) Not allowed

the cost of surgery for spine stabilisation for scoliosis 50,000 Not entitled (Free in Government Not allowed S/N 7vT9cwdd80yUnZYwLUwNw

the cost of surgery for hip dislocation 25,000 Not entitled (Free in Government Hospital) Not allowed

the cost of PEG tube insertion 5,500 Not entitled (Free in Government Hospital) Not allowed Subtotal 1,782,935 0 0 Future Damages (Medicine,

the cost of botulinum toxin 210,000 (3,000, twice a year for 35 years) Not entitled Free in Government Hospital if indicated. Not allowed

the cost of oral syrup baclofen 75,110 (2,146 per year for 35 years) Not entitled Free in Government Hospital Not allowed

the cost of syrup lactulose 5,040 (RM 144 per year for 35 Not entitled Free in Government Not allowed S/N 7vT9cwdd80yUnZYwLUwNw years)

the cost of T lansoprazole (gastric medication) 12,775 (365 per year for 35 years) Not entitled Free in Government Hospital Not allowed

the cost of levetiracetam (seizure medication) 19,320 (552 per year for 35 years) Not entitled Free in Government Hospital Not allowed

the cost of domperidone (nausea and vomiting medication) 38,325 (RM 1,095 per year for 35 years) Not entitled Free in Government Hospital Not allowed

the cost of clonazepam (epilepsy medication) 7,175 (RM 205 per year for 35 years) Not entitled Free in Government Hospital Not allowed

the cost of vitamins, such as vitamin C and D3 63,000 (calculated at the rate of 150 per month for 35 years) Not entitled Free in Government Hospital Not allowed

the cost of pneumococcal immunization (1 single dose) 120 (1 single dose) Not entitled If indicated, free in Government Hospital if Not allowed S/N 7vT9cwdd80yUnZYwLUwNw indicated.

the cost of Influenza A immunisation 1,400 (RM 40 per vial, per year for 35 years) Not entitled If indicated, free in Government Hospital. Not allowed

the cost of alternative and complementary medicine, such as essential oils, massage oils, homeopathy medicine, and etc. 105,000 (250 per month for 35 years) Not entitled if not recommended by doctors and Hospital Sultanah Bahiyah Not allowed Subtotal 535,440 0 0

the value of care provided by the Plaintiff’s family members 2,738,400 (6,520 per month for 35 years) Not entitled 1,500 x 291 month = 436,500.00

the additional cost of holidays (e.g. when bringing the Plaintiff on a cruise) 175,000 (RM 5,000 per year for 35 years) Not entitled 1,000.00 x 24.25 month = 24,250.00

the cost of respite care 168,000 (4,800 per year for 35 years) Not entitled Not allowed

the cost of employing 2 full-time maids 6,132,000 306,000 1 maid 1,700 x 12 x 24.25 = S/N 7vT9cwdd80yUnZYwLUwNw (RM20 per hour for 24 hours a day = RM 480 per day for 35 years) (RM 1,700 x 12 months x 15 years = RM 306,000) 494,700.00

the cost of accommodation, utilities, food and other expenses of the maid 210,000 (500 per month for 35 years) Not entitled. Not allowed

the cost of a full-time nurse / trained caregiver 2,738,400 (6,520 per month for 35 years) Redundant with item 76. Redundant. Not allowed

the cost of purchasing a suitable home 500,000 Only entitled for cost of renovation: RM5,000 Awarded in item no. 7.

the cost of renovations and disabled friendly modifications to the home 5,000 Redundant with item 79 Redundant. Not allowed

the cost of home remote monitoring (CCTV) with mobile app monitoring 52,500 (calculated at the rate of 1,500 per year for 35 years) Not addressed Not allowed

the cost of purchasing a disabled friendly multi-purpose vehicle (MPV), and installing the necessary disabled-friendly modifications 800,000 (RM 200,000 every 10 years, with a total of 4 purchases) 200,000 (RM 100,000 every 15 years with a total of 2 purchases) Agreed sum RM200,000.0 0 S/N 7vT9cwdd80yUnZYwLUwNw

the cost of purchasing home rehab equipment 28,000 (4,000 every 5 years with a total of 7 purchases) Not entitled. Not allowed

the cost of milk 340,200 (RM 810 per month for 35 years) 27,000 (RM 150 per month for 15 years) 150 x 291 month = 43,650.00

the cost of purchasing diapers, wipes, creams and other consumables 336,000 (800 per month for 35 years) 27,720 (154 per month for 15 years) 154 x 291 month = 44,814.00

the cost of rental of equipment, such as CPAP machine and air purifier 63,000 (RM 150 per month for 35 years) Not addressed Not allowed

the cost of travel and other incidental expenses 210,000 (500 per month for 35 years) Not addressed 500 x 291 month = 145,500.00 Subtotal 14,096,000-00 565,720 1,389,414.00 Total 18,495,845-00 1,092,582 2,542,600.12 Costs S/N 7vT9cwdd80yUnZYwLUwNw

the getting-up fee for liability proceedings 150,000-00 addressed 50,000.00

the getting-up fee for quantum proceedings 100,000-00 Leave it to the court to order reasonable cost 100,000.00

the out-of-pocket expenses 36,159-72 agreed 36,159.72 Grand Total 18,782,004-72 1,092,582 2,728,759.84

interest on special damages from 15 May 2017 to the date of admission of liability, 11 December 2024 4% 4% 4%

interest on pre-trial damages, general damages for pain and suffering and loss of amenities of life, and aggravated damages from the date of service of the Writ (11 May 2022) up to the date of judgment on liability 11 Dec 2024 8% 8% 8%

interest on the judgment sum (including costs) from the date of judgment on liability 11 Dec 2024 to the date of full payment 5% 5% 5% S/N 7vT9cwdd80yUnZYwLUwNw

Dissatisfied with my decision, both the Plaintiff and the Defendant has since filed their notice of appeal dated 13.03.2026 and 25.03.2026 respectively.

The following are my grounds for arriving at my decision. B.

Damages not a reward or punishment

Before proceeding to analyse the evidence, I wish to remind myself of the following trite principles in the assessment of damages. It is trite law that damages are compensatory, not as a reward, and certainly not as a punishment. In Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 CLJ 885, the Federal Court observed at page 894: [20] It is trite that damages serve as compensation, not a reward, less still a punishment (see Ong Ah Long v. Dr S Underwood [1983] 2 CLJ 198; [1983] CLJ (Rep) 300; [1983] 2 MLJ 324). In assessing damages, the court should not be motivated by sympathy and award fair compensation based on cogent evidence. The court should not descend into a domain of speculation. The evaluation of those evidence, which form the basis of any risk of future damage, must therefore still be undertaken. And the trial judge can only evaluate such evidence based on the recognised balance of probabilities standard. As was stated in Schrump: S/N 7vT9cwdd80yUnZYwLUwNw Thus, future contingencies which are less than probable are regarded as factors to be considered, provided they are shown to be substantial and not speculative. (emphasis added) The qualification as underscored in that sentence is in our considered view, necessary to be proven on a balance of probabilities.

Secondly, damages awarded must be fair, adequate and not excessive. The award of damages is to compensate and not to enrich the claimant. In Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292 at p 293, the Federal Court said: “It must be remembered that the purpose of damages is to try, so far as humanly possible, to put the victim back to the position he would have been in but for the accident The damages must be fair, adequate and not excessive. A reasoned judgment must therefore be given by the judge, following legal principles and precedents. Other awards in other cases should normally be prayed in aid, but consideration must be given where the circumstances differ”.

Once-and-for-all assessment

Thirdly, under the present jurisprudence, damages must be assessed on a once-and-for-all basis. Once the assessment is made, plaintiffs cannot subsequently return to court to claim further damages for their disabilities or future needs. Accordingly, it falls upon the court to determine their likely requirements in the future and to provide for them now by way of an award of damages.

In England and Wales provisional damages were introduced by legislation following the criticisms made in Lim Poh Choo v S/N 7vT9cwdd80yUnZYwLUwNw Camden and Islington Area Health Authority [1979] 2 All ER 910 (see O37 rr 7 to 10 of the Rules of the Supreme Court 1997 of England and Wales). In Lim Poh Choo, the House of Lords observed (at p 914): The course of the litigation illustrates, with devastating clarity, the insuperable problems implicit in a system of compensation for personal injuries which (unless the parties agree otherwise) can yield only a lump sum assessed by the court at the time of judgment. Sooner or later, and too often later rather than sooner, if the parties do not settle, a court (once liability is admitted or proved) has to make an award of damages, The award, which covers past, present and future injury and loss, must, under our law, be of a lump sum assessed at the conclusion of the legal process. The award is final; it is not susceptible to review as the future unfolds, substituting fact for estimate. Knowledge of the future being denied to mankind, so much of the award as is to be attributed to future loss and suffering (in many cases the major part of the award) will almost surely be wrong. There is really only one certainty: the future will prove the award to be either too high or too low.

With those principles in mind I now turn to the evidence. S/N 7vT9cwdd80yUnZYwLUwNw

It is not in dispute that the special damages period will run from the date of incident, i.e., 15 May 2017 until the date of filing of the claim, 10 May 2022 (60 months).

The Plaintiff had pleaded the sum of RM 10,000-00 as hospital and medical expenses. She should be entitled to all medical expenses reasonably incurred as a result of the admitted negligence of the Defendants. Embun’s mother had given evidence in her witness statement regarding such medical expenses. Her evidence as regards such expenses was not challenged.

The Defendant submits that PW1 in her evidence has stated that the Plaintiff only received treatment from Hospital Sultanah Bahiyah which is a government hospital, Significantly PW1 testified that the treatment was given free of charge.

In the light of the above I am in agreement with the Defendant’s submission that the Plaintiff is not entitled to a private hospitalisation cost as she is entitled to the treatment at the government’s hospital free of charge. S/N 7vT9cwdd80yUnZYwLUwNw

Embun had pleaded the sum of RM 30,000-00 as special damages for the travel and other incidental expenses incurred, calculated at the rate of RM 500-00 per month. Embun’s mother had given evidence in her witness statement and at trial of the amount of travelling that was needed to bring Embun for her therapy appointments in Penang and on the frequent visits that she and her husband had to make from Selangor to Kedah to visit Embun. Embun’s parents made the journey from Selangor to Kedah almost every single weekend, and they spent approximately RM 400-00 on travel and other incidental expenses each time they travelled back to Kedah.

The Defendant submits that by cross referencing the receipts issued it is clear that the Plaintiff had not particularised clearly the costs of the travels including non-statement of items such as distance of the travel and the toll payments. Instead, what the Plaintiff had done was merely to produce the train ticket. Taking into account that the Plaintiff resides in Pokok Sena, Kedah whereas PW1 and the Plaintiff’s father resides in di Kuala Lumpur, the travelling claim that should be allowed is limited to that of the train fare between Alor Setar – Kuala Lumpur only. It was accordingly argued that the Plaintiff is entitled to a special damages for travelling in the sum of RM708.00 only based on receipt produced.

I am unable to agree with Defendant’s submission. S/N 7vT9cwdd80yUnZYwLUwNw

I am of the view that a sum of RM500 per month is a reasonable sum for travelling expenses between Pokok Sena, Kedah to Pulau Pinang for physiotherapy. Thus, I award the following namely RM500 x 60 months = RM30,000.00.

I am not persuaded by the Plaintiff’s arguments to the contrary on other travelling expenses. Item no. 3 (The Cost of Purchasing an MPV)

Embun’s mother had given evidence in her witness statement that she and her husband had purchased a 7-seater Nissan Grand Livina in 2021 to accommodate Embun’s equipment and wheelchair and with little space left for anything else.

The Defendant did not submit on this issue.

I have the benefit of the photos and videos tendered in evidence, which show the difficulties that Embun’s grandparents face when bringing Embun out of the house in their Nissan Almera.

The Plaintiff provided receipts as regards the purchase of the MPV. I find that RM36,000.00 claimed for the purchase of 7- seater Nissan Grand Livina as fair and reasonable and allowed this claim in full. S/N 7vT9cwdd80yUnZYwLUwNw Item No. 4 (The value of care provided by Family members)

Embun’s mother had given evidence about the challenges and difficulties that they face in caring for a severely disabled child like Embun, who require assistance in every single aspect of her daily life. Such care was given gratuitously.

Embun’s family members did not have a maid or a trained caregiver to assist them in managing and caring for Embun and her extensive needs. They have most certainly struggled with caring for Embun and should not be compensated less than a skilled worker who have been specially trained to do the very job that they have been undertaking themselves for the last 8 years. According to the Plaintiff they should be adequately compensated for the care that they have provided to Embun. The sum of RM 2,500-00 per month is therefore argued to be reasonable and should be allowed in full. The calculation is as follows:- RM 2,500-00 per month x 60 months = RM 150,000-00.

On this claim the Defendant submits that the Plaintiff is not entitled to it as this claim of RM150,000.00 does not fall within the category of special damages and no receipts were produced.

I find and award the sum of RM1500.00 per month as the value of care provided to Embun on the basis that Embun’s family members did not have a maid or a trained caregiver to assist them in managing and caring for Embun and her extensive needs. The Plaintiff’s grandparents have also assisted with the S/N 7vT9cwdd80yUnZYwLUwNw caregiving, and I find that the reasonable amount to be awarded is a sum of RM1500.00 per month for 60 months which works out to RM90,000.00 Item no 5 (The cost of therapies)

The Plaintiff submits that Embun can properly recover all medical and therapy expenses which have been reasonably incurred in the treatment and management of her injuries, including therapies.

Embun’s mother had given evidence in her witness statement and during the trial that Embun’s family members brought her for ABM therapy in Penang three times a week.

Dr Kavitha (PW2) had given evidence that ABM therapy is a form of physiotherapy.

Embun’s mother had further given evidence that with frequent ABM therapy, she had seen an improvement in Embun’s condition, especially as regards her spasticity and flexibility of her limbs, and her chewing and swallowing abilities.

As regards to the costs of therapies at the rate of RM1500.00 per month for 60 months the Defendant submitted that the Plaintiff is not entitled to the total sum claim i.e. RM90,000.00 as pleaded in the Statement of Claim as the said item was not proved at trial. No receipts were produced. No document was also produced to support this claim. S/N 7vT9cwdd80yUnZYwLUwNw

Having examined the documents from Mano ABM Therapy Centre dated 3.01.2024, it is established that Embun first sought treatment at the Centre from January 2020. I therefore allow the sum of RM1500 from January 2020 up to the date of filing of the summons, on 10 May 2022 (28 months). Thus, a sum of RM42,000.00 is allowed which is based on RM1500 x 28 months. Item no. 6 (The Cost of Accommodation in Penang when travelling for Therapies)

Embun’s mother had given evidence that they would usually book a homestay in Penang, when bringing Embun there for her therapies.

Defendant did not address this issue.

I therefore allow the sum of RM500 per month as costs of accommodation for 28 months which equals to RM14,000.00. Item no. 7 (The cost of renovations to the Home in Kedah)

Embun currently lives in Kedah with her grandparents. Embun’s mother had given evidence that the living room had to be renovated in order to provide a makeshift room where Embun sleeps and where she can be afforded some semblance of privacy.

Embun’s mother had given evidence in her witness statement that the cost of these renovations was approximately RM 4,000-00. S/N 7vT9cwdd80yUnZYwLUwNw The pleaded sum of RM 4,000-00 should therefore be allowed in full according to the Plaintiff.

The Defendant did not address this issue.

I allowed this claim in full as it is fair and reasonable. Item no. 8 (The additional Cost of Holidays)

The Plaintiff submits that it cannot be denied that bringing a disabled child for holidays would be challenging. Not only do Embun’s carers have to make proper travel arrangements, but they would also have to ensure that the hotels or accommodation that they book were disabled friendly. Embun’s mother gave evidence that they are forced to spend additional expenses when bringing Embun for holidays.

The Plaintiff cited the case of Muhammad Yassien Bin Zuliskanfdar (seorang kanak-kanak yang mendakwa melalui bapa dan sahabat wakilnya) v. Kerajaan Malaysia & Anor Rayuan Sivil No. J-01(IM)-119-04/2017, where the Court of Appeal awarded the additional cost of holidays in the sum of RM 1,000-00 per year. The Court of Appeal in Dr Azlina Binti Abdul Azizi & 13 Ors v. Harraz bin Abdul Halim & Anor (Court of Appeal Civil Appeal No. W-01(NCVC)(W)-522-08/2018) upheld the award by the learned trial Judge for the cost of holidays in the sum of RM3,000-00 per year. S/N 7vT9cwdd80yUnZYwLUwNw

The bills and receipts as regard this item of special damages can be found at pages 138 to 159 and 163 to 165 of Bundle D. 332. In the circumstances, counsel proposes that the global figure of RM 10,000-00 for the period of 60 months be awarded as special damages for the additional cost of bringing Embun for holidays.

The Defendant did not address this issue.

I find that SP1’s evidence and the receipts produced have established that the Plaintiff is entitled to a claim under this head. I therefore award a sum of RM1,000.00 per year for 5 years to be fair and reasonable sum. Thus, a sum of RM5,000 is awarded under this item as additional cost of holidays. Item no. 9 (The Cost of Milk)

Embun’s parents had received a one-off contribution from Jabatan Zakat Kedah for a one-year supply of milk for Embun. They are only entitled to such a contribution once and cannot apply for it again.

Embun’s mother had given evidence that each tin of milk costs approximately RM 70-00, and Embun needs around 9 to 10 tins of milk a month.

In the circumstances, the Plaintiff submits that the sum of RM 700-00 per month is reasonable and should be allowed in full. The calculation is as follows: S/N 7vT9cwdd80yUnZYwLUwNw RM 700-00 per month x 60 months = RM 42,000-00.

The Defendant however submitted that based on the evidence produced the Plaintiff is only entitled to a sum of RM11,697.23.

I find that based on the evidence the costs of a can of milk to be between RM46.00 and by rounding up to RM50.00 per can and that Embun requires 10 cans a month the total amount to be awarded is RM30,000 which is calculated as follows RM50 x 10 tin = RM500 x 60 months = RM30,000.00. Item no. 10 (The cost of special food, supplements, vitamins, essential oils and etc)

Embun’s mother had given evidence that she purchased vitamins, supplements, essential oils, homoeopathy medicines and etc for Embun’s daily use. She further stated during trial that the doctors in Hospital Sultanah Bahiyah did not disagree with their purchase of supplements and homeopathy medicines for Embun and that these supplements and homoeopathic medicines were beneficial to Embun.

The bills and receipts as regards this item of special damages can be found at pages 464 to 479 of Bundle C and pages 2 to 3, 10, 31, 51 to 56, 60, 67 to 68, 70, 73, 94, 98 to 99, 103, and 128 of Bundle D. In the circumstances, according to the Plaintiff the sum of RM 300-00 per month for this item of special damages is S/N 7vT9cwdd80yUnZYwLUwNw reasonable and should be allowed in full. The calculation is as RM 300-00 per month x 60 months = RM 18,000-00.

The Defendant vehemently refuted the Plaintiff’s entitlement to this item on the basis that all required supplements and vitamins are supplied by the Hospital.

I find that the vitamins supplements, essential oils, homoeopathy medicines benefit Embun wellbeing and I allowed the claim under this item as submitted which is RM300.00 x 60 month = RM18,000.00. Item no. 11 (The cost of equipment including rental of a CPAP

Embun’s mother had given evidence in her witness statement and during trial that they had purchased several equipment for Embun including, amongst others, a wheelchair and a feeding chair. They had also rented a CPAP machine and an air purifier for Embun.

Embun’s parents did receive assistance in purchasing the wheelchair, but they were still required to pay the sum of RM 500-

The bills and receipts as regards the purchase of these equipment and rental of the CPAP machine and air purifier can be found at pages 481 to 482 and 484 to 486 of Bundle C and pages 4, 7 to 9, 42 to 43, 49, 64, 66, 69, 71, 74, 76, 78 to 90, 104, 123 to 127, and 167 to 178 of Bundle D. S/N 7vT9cwdd80yUnZYwLUwNw

The Plaintiff’s counsel proposes that the global figure of RM 10,000-00 be awarded as damages for this item.

The Defendant, by reference to the receipts produced, submitted that the Plaintiff is entitled only to the sum of RM8,266.12, which includes RM350.00 paid by the Plaintiff towards the purchase of the C-PAP machine. The balance of the purchase price for the C-PAP machine was borne by Hospital Sultanah Bahiyah, while the cost of the wheelchair was covered by Pusat Zakat Kedah. In light of this evidence, the Court accepts that the Plaintiff’s entitlement is limited to the actual expenditure incurred personally, and not to amounts already subsidised or borne by third parties.

I agree with the Defendant and thus award the sum of RM8,266.12 based on the receipts produced. Item no. 12 (The cost of Diapers, Wipes and other

Learned Federal Counsel for the Defendant has proposed the figure of RM 4,466 00 as damages for this item, which comes to the sum of approximately RM 74-00 per month for 60 months. That proposal is unreasonable. Dr Kavitha had recommended the sum of RM 800-00 per month as damages for consumables such as diapers, gloves, lotions, nebulizer masks, and etc.

The pleaded sum of RM 500-00 per month is reasonable and should be allowed in full. The calculation is as follows: S/N 7vT9cwdd80yUnZYwLUwNw RM 500-00 per month x 60 months = RM 30,000-00

I find the sum claimed by the Plaintiff to be reasonable and proved and thus award the sum of RM30,000-00 as pleaded. Item no. 13 (The Solicitor and Client Cost of obtaining pre-action discovery of medical records)

Embun had pleaded the sum of RM 7,420-00 as the solicitor and client costs she incurred in getting pre-action discovery of her and her mother’s medical records in Hospital Sultanah Bahiyah. A copy of the proforma bill in regard to the professional charges for such pre-action discovery was tendered as evidence.

It is trite law that a successful litigant is entitled to recover as damages the costs of his or her pre-action discovery proceedings. and cited the case of Norwich Pharmacal Co and others v. Commissioners of Customs and Excise [1973] 2 All ER and also the case of Devarani a/p Vijiyan v. Dr Daniel Foo Yong Chiang & Anor in the Kuala Lumpur High Court Civil Suit No. 22NCvC-116-03/2015.

The Defendant submitted that the application for discovery is a process provided by law and in accordance with Guideline of the Malaysian Medical Council MMC Guideline 002/2006, Medical Records and Medical reports, of any patient is confidential and could only be disclosed if there is any order made by court through a discovery process. The costs must therefore be borne S/N 7vT9cwdd80yUnZYwLUwNw by the Plaintiff. In the alternative it was submitted that based on the receipts produced the Plaintiff is only entitled to the sum of

I find that the Plaintiff is entitled to costs but is limited to RM7420- 00 as per the receipts produced. D.

The Pre-Trial Damages period will run from the date of filling of action which is 10 May 2022 until the date of judgment 25 February 2026 (45 months). Item no 14 (Travel expenses)

I have awarded the same claim in item no. 2 as such under this item I allowed RM500 per month for 45 months =RM22,500-00. Item no 15 (value of care provided by family members)

I have awarded the same claim in item no. 4 as such under this item I allowed RM1500 per month for 45 months =RM67,500.00. Item no 16 (cost of therapies)

I have awarded the same claim in item no. 5 as such under this item I allowed RM1500 per month for 45 months =RM67,500-00. S/N 7vT9cwdd80yUnZYwLUwNw Item no 17 (cost of accommodation when travelling for therapies in Penang)

I have awarded the same claim in item no. 6 as such under this item I allowed RM500 per month for 45 months =RM22,500.00. Item no 18 (cost of milk formula)

I have awarded the same claim in item no. 9 as such under this item I allowed RM500 per month for 45 months =RM22,500.00. Item no 19 (cost of special food, supplements, vitamins, essential oils and etc)

I have awarded the same claim in item no. 10 as such under this item I allowed RM300 per month for 45 months =RM13,500.00. Item no 20 (The cost of equipment including rental of a CPAP

I have awarded the same claim in item no. 11 as a one off and this claim is not allowed. Item no. 21 (The cost of Diapers, Wipes and other

I have awarded the same claim in item no. 12 as such under this item I allowed RM500 per month for 45 months =RM22,500.00. S/N 7vT9cwdd80yUnZYwLUwNw E. GENERAL DAMAGES – Pain and suffering and loss of amenities

The Plaintiff was diagnosed with moderate neonatal encephalopathy (Moderate HIE), a condition that carries significant long-term neurological and developmental consequences, including heightened risks of cerebral palsy, epilepsy, cognitive impairment, and motor disability.

The Plaintiff is seeking the sum of RM 500,000-00 as general damages for pain and suffering and loss of amenities of life.

It was submitted on behalf of the Plaintiff that this head of damages comprises two distinct components. The first concerns the element of pain and suffering endured by the victim as a consequence of the injuries sustained. This encompasses the pain and suffering presently experienced by Embun and which she will continue to endure for the remainder of her life. Both components of this head of damages are applicable to Embun. As a catastrophically injured child, her pain and suffering are unending, as is her loss of the amenities of life. Given her complications, particularly in relation to her mental and physical disabilities, she is likely to undergo considerable pain and suffering during surgical interventions for her contractures or spinal stabilisation for scoliosis. The table below shows the cases and award that have been made:

Muhammad Fikrey bin Bakhtiar & Ors v Dr Fatin Ahya Zulkeflee & Ors [2019] MLJU 1889 450,000-00 S/N 7vT9cwdd80yUnZYwLUwNw

Farah Ahmed Naji Al-Sahhaf v Dr Lee Weng Seng & Ors [2017] MLJU 1725 400,000-00 3. Harraz bin Abdul Halim & Anor v Dr Azlina binti Abdul Aziz & 13 Ors [2018] 1 LNS 1387 400,000-00 4. Yasmin Nabilah Binti Zulhilmi v Government of Malaysia (Court of Appeal Civil Appeal No.: W-01(NCVC)(W)-50 01/2021) 400,000-00 5. Muhammad Aqil Amsyar bin Mohammad Ameerul & 2 Others v Dr Nurhanim binti Yahya & 16 Others, Kuala Lumpur High Court Civil Suit No. 21NCVC-90-12/2015 400,000-00 6. Fazli bin Suboh & 2 Ors v Dr Fatimah bt Ahmad Fauzi & 4 Ors (Kuala Lumpur High Court Civil Suit No. 21NCVC 88-12/2015) 400,000-00 7. Henry Siang Len v Universiti Kebangsaan Malaysia & 2 Ors (Court of Appeal Civil Appeal No. W-02(NCVC)(W) 349-02/2019) 500,000-00 8. Pantai Medical Centre Sdn Bhd v Fareed Reezal bin Arund (suing through his wife and litigation representative Wan Zafura bt Wan Kassim) and another appeal [2022] 4 MLJ 529 400,000-00 9. Naren a/l Vejayan v the Government of Malaysia (Court of Appeal Civil Suit No.: J-01(NCv)(W)-479-07/2022) 400,000-00 10. Nur Adeena Binti Mohd Syahmir v the Government of Malaysia (Court of Appeal Civil Suit No: W 01(NCVC)(W)-227-04/2023) 400,000-00 11. Lee Seow Chean&Anor v The Government of Malaysia&18 Ors (Kuala Lumpur High Court Civil Suit No.: WA 21NCVC-94-11/2020) 450,000-00 12. The Government of Malaysia v Nur Arissa Naura binti Noor Affrizal & 1 Anor (Court of Appeal Civil Suit No.: W 01(NCvC)(W)-234-05/2023) 500,000-00 13. Thaqif Asyraf bin Khairol Nizam v the Government of Malaysia (Court of Appeal Civil Suit No.: P 01(NCvC)(W)- 400,000-00 S/N 7vT9cwdd80yUnZYwLUwNw 526-10/2023)

Muhammad Qaayed Umar bin Mohammad Shaizzad v Dr Norzaidi bin Zakaria (Shah Alam High Court Civil Suit No.: BA-22NCvC-270-07/2022) 400,000-00 15. Nitin Sharma v the Government of Malaysia&30 Ors (Kuala Lumpur High Court Civil Suit No. WA-21NCvC-8 01/2022) 400,000-00

The Plaintiff further relied on the Bar Council’s Revised Compendium of Personal Injury Awards dated 6 July 2018, which recommends the sum of RM420,000.00 as general damages for pain and suffering in respect of a person who is bedridden yet remains conscious and aware.

The Defendant on the other hand proposed the sum of RM350,000.00 as award for general damages based on the case of Ku Jian Shiuen (an infant suing through her mother and next friend, Tay Pei Hoon) & anor v Government of Malaysia & Ors v [2013] 4 MLJ 108 and Nurul Husna Muhammad Hafiz v. Kerajaan Malaysia & Ors [2015] 1 CLJ 825.

In recent cases, awards for patients suffering from cerebral palsy have ranged between RM350,000.00 and RM500,000.00 as general damages.

Having considered the submissions and the authorities cited, I award Embun the sum of RM400,000.00 as general damages for pain and suffering and for the loss of amenities of life. S/N 7vT9cwdd80yUnZYwLUwNw F.

The Plaintiff submitted that it is trite law that aggravated damages may be awarded as a separate head of damages in medical negligence cases and cited in support the case of Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281.

In Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784, the Court of Appeal held as follows at paragraph 32:- “Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest or personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant.”

The Plaintiff claims that the Defendants’ conduct in this case warrants an award of aggravated damages. The Defendant had blamed “takdir” for her injuries. They had unfortunately used faith to dissuade Embun’s parents from bringing a claim for damages. Yet when the claim was filed, they had no choice but to admit negligence. Embun’s claim was filed on 10 May 2022. The 1st Defendant had filed a Defence dated 29 July 2022 denying liability. An admission of liability only came nearly two and a half years after the claim was filed in Court. S/N 7vT9cwdd80yUnZYwLUwNw

By refusing to be honest and candid about their shortfalls, the Defendants have aggravated the injuries suffered by Embun.

In response, the Defendant relies upon the authority of Thompson v Commissioner of Police [1997] 2 All ER 762, wherein the Court articulated the governing principles on the award of aggravated damages as follows;

compensatory damages are made up of: a) basic damages i.e. degree of harm suffered by Plaintiff; and b) Aggravated damages. They are not intended to punish the defendants

(ii) Aggravated damages are awarded where there are aggravating features that result in the Plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to basic damages

(iii) The Aggravating Features include: a) Humiliating circumstances; b) Conduct of Defendants showing that they behaved in a high handed, malicious or oppressive manner; c) The way the litigation or trial is conducted; d) When considering what are the appropriate damages the conduct caused or contributed to by the Plaintiff must be taken into account.”

The Defendant further contended that although liability has been duly recorded by the parties in this matter, the Plaintiff has nowhere in their statement of claim pleaded any fact or S/N 7vT9cwdd80yUnZYwLUwNw circumstance that would entitle her to an award of aggravated damages. Furthermore, no condition amounting to “aggravating features,” as elucidated in Thompson, is present, for PW1 was properly examined and treated at Hospital Sultanah Bahiyah. The Defendant submits that the duty of healthcare personnel is confined to providing necessary treatment to patients, and not to causing them injury.

The Defendants cited the case of Hasniyati Bt Hassan & Anor v Government of Malaysia [2022] 10 MLJ 469, wherein the High Court of Penang held that: - “My opinion is that aggravated damages are not warranted in the instant case as I find that: a. the issue in this suit was purely one of medical negligence. D/Penang Hospital acted as best as they could at a material time to treat and manage the plaintiffs; b. although the issue of liability in this suit had been recorded, it was an unintentional negligence. The task of treating patients is placed on the shoulders of doctors on duty and employed at the government hospitals. No doctor would want to intentionally injure his patients. Doctors in government hospitals also have no option to reject patients. All patients referred in government hospitals will be treated accordingly based on the diagnosis at the material time. In this regard, it is noteworthy that P1 was turned away by Pantai Hospital and referred to the Penang Hospital; c. there was no exceptional or contumelious behaviour or motive on the part of D/Penang Hospital, there was no element of bad motive or ill conduct on their part when treating the plaintiffs. They had not S/N 7vT9cwdd80yUnZYwLUwNw behaved in a high handed, malicious or oppressive manner toward the plaintiffs; d. I take cognisance of the injured feeling of P1 due to a insensitive remark by a therapist at the Penang Hospital that P2 ‘is slow, cannot do this, cannot do that’. But the said remark was not such as to warrant an award for aggravated damages; and e. based on the overall facts, there were no elements of aggravating features. I believe the plaintiffs have been fairly compensated by way of general and future damages.”.

From PW1’s own admission, I am more persuaded by the Defendant’s submission that Hospital Sultanah Bahiyah had taken all reasonable and appropriate measures to safeguard the Plaintiff. The medical staff conducted proper examinations and proceeded with delivery upon detecting cervical dilation of 8 cm, thereby acting in accordance with accepted medical practice. The conduct of the healthcare personnel reflects diligence and commitment to preserving the life of the unborn Plaintiff, rather than any deliberate intent to inflict harm. While it is acknowledged that the Plaintiff was ultimately born with severe complications, namely Hypoxic Ischaemic Encephalopathy (HIE) Stage V, such outcome does not establish aggravating circumstances. I find that there is no evidence of exceptional or contumelious conduct or motive on part of the medical personnel that could be said to have aggravated the Plaintiff’s injury.

The Defendant further cited the case of Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma a/l Karam Chand & Anor Civil Appeal No: B-02(NCVC)(W)-1482-09/2023, wherein it was S/N 7vT9cwdd80yUnZYwLUwNw succinctly held that a claim for aggravated damages must be specifically pleaded and substantiated by proof of the circumstances alleged to constitute aggravating features, in order to entitle the Plaintiff to such an award. In the present case before this Court, the Plaintiff has neither pleaded, nor established, any event or circumstances that would justify the grant of aggravated damages. Accordingly, the claim under this head must fail. G.

The Plaintiff submits that, in relation to Embun’s estimated life expectancy and the appropriate multiplier to be applied in assessing future damages, the Court is bound to rely solely upon the expert testimony and other evidence adduced at trial. To address the claims under this head of damages, the Plaintiff raised the following separately:-

Embun belongs in the oral feeding or tube feeding category;

Embun’s estimated life expectancy; and

no further judicial deductions can be made to Embun’s estimated life expectancy.

In determining the Plaintiff’s life expectancy, both parties adduced expert testimony from their respective Rehabilitation Specialists. The Plaintiff’s expert report (PW2) is contained in Bundle E, wherein PW2 referred to a study conducted in the United States S/N 7vT9cwdd80yUnZYwLUwNw by Brooks et al. The Defendant’s expert report (DW1) is contained in Bundle G, and DW1 referred to two studies, including the same study cited by PW2 in Bundle E. Based on the expert reports in Bundles E and G, both experts concurred that there are no studies relating to the life expectancy of children with cerebral palsy in Malaysia.

A study in US revealed that the distinction between oral feeding and tube feeding constitutes a significant factor influencing life expectancy a children with Cerebral Palsy (CP) as highlighted in the study by Brooks et al., which examined gross motor function and feeding ability (tube-fed, orally fed by others, or self-fed). Table II at page 16 of Dr. Kavitha’s Specialist Report records that a four-year-old child who “does not lift the head in the prone position” and is “fed orally by others”—reflecting Embun’s condition—has a 73% probability of surviving to age 15 and a 56% probability of surviving to age 20. The following passages are instructive: S/N 7vT9cwdd80yUnZYwLUwNw

The Defendant argued that both PW2 and DW1 agreed that the Plaintiff suffers from Cerebral Palsy with physical impairments classified under the Gross Motor Functional Classification System (GMFCS) Level V, falling within the category of “not able to lift head and chest, not able to sit independently, not able to stand or walk, and/or not able to creep or crawl,” or otherwise described as “dependent in mobility”.

This fact was likewise acknowledged by PW2 during cross-examination. In addition, PW2 admitted under cross-examination that the Plaintiff ought to be on tube-feeding and properly classified as “tube-fed”.

The Defendant further submit that in Bundle E, PW2 referred to “Fed orally by others (FBO)” as the indicator of the Plaintiff’s feeding ability in Table III and estimated that the Plaintiff’s additional life expectancy would be 18 years if she reached the age of 15 (calculated as 15 years + 18 years = 33 years). S/N 7vT9cwdd80yUnZYwLUwNw

PW2 further stated during cross-examination that, in her view, the Plaintiff ought to be fed through a tube in order to meet her needs. As Embun pulled out her feeding tube multiple times her parents started oral feed at home. PW2 was of the opinion that Embun is underweight with only 9.7kg at the time PW2 saw her in 2023 at 6 years old. Embun’s oral feeding needs to be supplemented with tube feeding because a low birth weight does mean a higher mortality for the patient.

In this regard, the Defendant contended that PW2’s reference to the Plaintiff’s feeding ability was inaccurate, as it failed to take into account the Plaintiff’s actual medical needs based on clinical assessments conducted throughout her treatment in hospital.

This conclusion is drawn from the Plaintiff’s medical records during her treatment and subsequent discharge from the hospital, which expressly recorded that she was discharged with the requirement of feeding via a Ryles Tube. Accordingly, the Plaintiff is properly classified as “tube-fed.” This classification is substantiated by documentary evidence contained within her medical records.

The Plaintiff submits that Embun’s life expectancy, as estimated by Dr Kavitha and Dr Ooi, is between 33 years and 40 years. Dr Kavitha had relied on a study of life expectancies of cerebral palsy patients by Brooks et al and had given Embun a life expectancy of 33 years. Dr Ooi had, in her expert report also relied on the study by Brooks et al, and an Australian study by Blair et al. Dr Ooi had cited Blair et al and estimated Embun’s life S/N 7vT9cwdd80yUnZYwLUwNw expectancy to be 34.6 years and made a deduction of 3 years, to account for the lower life expectancy of the average population in Malaysia, as compared to Australia, bringing her life expectancy to 31 years.

However, when she was re-called to give further evidence, Dr Ooi agreed that based on Blair et al, Embun’s life expectancy was estimated to be 40 years.

Embun’s life expectancy should therefore be 43 years, going by Dr Ooi’s estimated life expectancy of 40 years, with an additional 3 years pursuant to the favourable economics point made in Robshaw. Her multiplier should be 35. The calculation is as follows:- Life expectancy of 43 years less Embun’s current age of 8 years = 35 years.

The Defendant submits that taking into account the expert evidence as outlined above the Plaintiff’s Iife expectancy would be arrived at as follows; Life Expectancy 30 years Age during trial 8 years

Life expectancy minus age during trial 22 tahun 1/3 contingencies (1/3 of 22 years) 3 years(round up to 7 years) Life expectancy minus age during trial minus 1/3 “contingencies’ 22 – 7 years Expected lifespan 15 years S/N 7vT9cwdd80yUnZYwLUwNw

The Defendant cited the case of Bujang bin Mat & Anor v. Lai Tzen Hai & Ors [2004] 6 MLJ 376 and the Court of Appeal’s decision in the case of Inas Faiqah Binti Mohd Helmi v. Kerajaan Malaysia & Ors [2015] 3 MLJ 498 on the need to deduct 1/3 as contingencies.

Taking into account the entirety of evidence I agree with the Plaintiff’s expert that Embun’s life expectancy will be 33 years of age and I further find that Embun should be categorised as ‘feed by others’ supplemented with tube-feeding and that based feed by others category, on surviving to age of 15 from Table III : Life expectancy : additional years (standard error) for adolescents and adults with cerebral palsy, with good care and significant setbacks. Thus to reiterate, Embun will likely survive to the age of 33 years old.

In coming to this finding I have not overlooked the evidence of the comparative data from the United States and Western Australia, where the expectation of life for females born in 2017 is 81.1 years in the United States and 84.9 years in Western Australia. In Malaysia, the life expectancy for Bumiputra females born on 15 May 2017 is 76.2 years (Malaysia Life Expectancy [by ethnic group and sex], Life Expectancy System, Department of Statistics Malaysia). This demonstrates a difference of 4.9 to 8.7 years respectively when compared to Malaysia.

I have also considered the submissions on 1/3 contingencies deduction and arrive at the conclusion that the same cannot be applied. I sustain the submissions of the Plaintiff that the point Dr S/N 7vT9cwdd80yUnZYwLUwNw Kavitha had made was that the Brook et al and Blair et al studies had already taken into account the various conditions that cerebral palsy patients would be subjected to, including pneumonia, seizures, etc. These conditions would impact the life expectancy of a cerebral palsy patient. Embun’s life expectancy has already been drastically reduced, when compared to an average Malaysian female. Since these studies have already taken into account various contingencies of life that is specific to cerebral palsy patients such as Embun, there can be no further judicial deductions made to her life expectancy. Following the decision of the Court of Appeal in Pantai Medical Centre Sdn Bhd v. Fareed Reezal bin Arund [2022] 4 MLJ 529. I hold thus that there can no longer be any judicial reduction to the life expectancy if the experts had already taken into account the contingencies and vicissitudes of life when estimating the life expectancy. H. FUTURE GENERAL DAMAGES (Equipment, Appliance, etc)

Recommendation by expert on Equipment, Appliance, etc :

the cost of purchasing a double fowler hospital bed. RM 5,500 every 10 years with a total of 4 purchases. RM5,500 every 10 years with total of 2 purchases.

Item 26: The Court accepts the recommendation of Dr Ooi and awards RM5,500.00, calculated on the basis of two purchases every ten years, given that the Court has determined the S/N 7vT9cwdd80yUnZYwLUwNw Plaintiff’s life expectancy to be 33 years and, after deducting her current age of 8 years, a balance of 25 purchase years remains and amounting to a total of RM11,000.00.

the cost of purchasing an alternating pressure mattress. RM 2,500 every 5 years with a total of 7 purchases. Not entitle.

Item 27: The Court accepts Dr Kavitha’s recommendation and awards the sum of RM2,500.00 every five years over the remaining 25 purchase years, amounting to a total of

the cost of purchasing wedges for lower limb positioning. RM 500 every year. Overlap with item no.

29.

Item 28: The Court accepts the recommendation of Dr Kavitha and awards RM500.00 per year for 25 purchase years, amounting to a total of RM12,500.00.

the cost of purchasing orthotic device for hands and lower limbs. RM 5000 every year. RM 5000 every year with a total of 15 purchases. S/N 7vT9cwdd80yUnZYwLUwNw

Item 29: The Court accepts the recommendations of both experts but decided to award RM62,500, calculated at 12.5 purchase years (25 years / 300 month divide by two = 150 months) = 12.5 years × RM5,000.00 = RM62,500.00).

the cost of purchasing powered wheelchair tilt-in space with customised seating system. RM 8,000 every 5 years, with a total of 7 purchases. RM5000.00 (age 5 – 15 years). RM5000.00 (age 15 to 24 years

Item 30: The Court accepts Dr Kavitha’s recommendation and awards the sum of RM8,000.00 every five years over the remaining 25 purchase years, amounting to a total of

the cost of change of the customised cushion in the wheelchair. 3,500 every 10 years, with a total of 4 purchases. RM3500.00 x 2 (2 changes between 5-15 years).

Item 31: The Court accepts Dr Ooi recommendation and awards the sum of RM3,500.00 with two purchases in 25 years amounting to RM7,000.00. S/N 7vT9cwdd80yUnZYwLUwNw

the cost of purchasing a mobile electric hoist. RM 10,000 every 10 years, with a total of 4 purchases. RM6,000 every 10 years, with a total of 2 purchases.

Item 32: The Court accepts Dr Ooi recommendation and awards the sum of RM6000.00 with two purchases in 25 years amounting to RM12,000.00.

the cost of purchasing portable ramps. RM 800 every 5 years, with a total of 7 purchases. RM800.00 every 5 years with total of 4 purchases.

Item 33: The Court accepts both expert recommendation and awards the sum of RM800.00 with five in 25 years amounting to

the cost of purchasing a mobile standing frame (electrical powered). RM 5,000 every 5 years, with a total of 7 purchases. 5,000 every 5 years, with a total of 4 purchases.

Item 34: The Court accepts both expert recommendation and awards the sum of RM5000.00 with five purchases in 25 years amounting to RM25,000.00. S/N 7vT9cwdd80yUnZYwLUwNw

the cost of purchasing a padded and reclining commode wheelchair / shower trolley. RM 2,000 every 5 years, with a total of 7 purchases. RM2,000 every 5 years, with a total of 4 purchases.

Item 35: The Court accepts both expert recommendation and awards the sum of RM2000.00 with five purchases in 25 years amounting to RM10,000.00.

the cost of purchasing a pulse oximeter. RM 300 every 5 years, with a total of 7 purchases. RM100.00 every 4 years for 4 purchases.

Item 36: The Court accepts Dr Kavitha recommendation and awards the sum of RM300.00 with five purchases in 25 years amounting to RM1,500.00.

the cost of purchasing a digital blood pressure machine. RM 250 every 5 years, with a total of 7 purchases. RM200.00 every 4 years for 4 purchases RM100.00 every 4 years for 4 purchases. S/N 7vT9cwdd80yUnZYwLUwNw

Item 37: The Court accepts Dr Kavitha recommendation and awards the sum of RM250.00 with five purchases in 25 years amounting to RM1,250.

the cost of purchasing a stethoscope. RM 250 every 5 years, with a total of 7 purchases. Not entitled and not suitable to be handle by non-medical personal.

Item 38: The Court agree with Dr Ooi that this item is not suitable to be handled by a non-medical personal. The Court disallowed this claim.

the cost of purchasing a digital ear thermometer. RM 150 every 5 years, with a total of 7 purchases. RM 150 every 5 years, with a total of 3 purchases.

Item 38: The Court accepts both expert recommendation and awards the sum of RM150.00 with five purchases in 25 years amounting to RM750.00. S/N 7vT9cwdd80yUnZYwLUwNw I. FUTURE DAMAGES Item no 40 – 61 : Future Damages (Medical, Therapy and Rehabilitation Needs) Item 62 – 72 : Future Damages (Medicine, Supplements and Additional Immunisation.

The Plaintiff submits that Embun has been receiving treatment and therapy at Hospital Sultanah Bahiyah, the nearest facility to her grandparents’ residence. Her parents reside in Puchong, Selangor, and in due course Embun will inevitably have to live with them. The Defendant has adduced no evidence to establish that Hospital Sultanah Bahiyah is capable of providing all the therapies and follow-up consultations recommended by both their own expert, Dr Ooi, and the Plaintiff’s expert, Dr Kavitha. Despite having undergone treatment at Hospital Sultanah Bahiyah for approximately eight years, Embun has never been scheduled for a consultation with a consultant ENT surgeon, nor has she been given any appointments for speech and language therapy.

Further, Hospital Sultanah Bahiyah has not furnished Embun’s carers with any rehabilitation plan or structured programme. There is no evidence before this Court that the hospital has been, or will be, capable of catering to Embun’s extensive needs or of providing the requisite care, treatment, and rehabilitation as recommended by the experts. This absence of a comprehensive rehabilitation framework underscores the inadequacy of the existing arrangements and reinforces the necessity for alternative S/N 7vT9cwdd80yUnZYwLUwNw provision to ensure that Embun’s long-term medical and therapeutic requirements are properly addressed.

The issue for determination is whether a plaintiff is obliged to rely upon services provided free of charge by the government at taxpayers’ expense, or whether the plaintiff is entitled, as of right, to obtain such services privately. The Plaintiff has cited Peters v East Midlands Strategic Health Authority & Ors [2009] EWCA Civ 145 as authority in which this issue was considered and conclusively determined.

In determining future general damages, and with reference to the case of Kasirin Kasmani v The Official Administrator & Anor [1991] 2 CLJ (Rep) 800, the Defendant contends that the Plaintiff bears a duty to mitigate expenses and may only claim items that are reasonable and necessary in light of the Plaintiff’s circumstances and needs.

The Defendant does not dispute that the Plaintiff’s present condition necessitates treatment and care, including continuous therapy and rehabilitation. The Defendant contends, however, that PW2 in his report expressly stated that the treatments listed in Appendix 1 and the medications in Appendix 2 of Bundle E are provided free of charge at government hospitals and public institutions.

Embun’s mother admits that throughout the course of her medical treatment, the Plaintiff has never been attended to at any private hospital. She has received medical care and supplies exclusively from Hospital Sultanah Bahiyah, a government facility. S/N 7vT9cwdd80yUnZYwLUwNw

Although PW1 in her testimony expressed an intention to have Embun treated at a private hospital, PW1 has, to date, continued to bring her for treatment at Hospital Sultanah Bahiyah. PW1 further acknowledged in her evidence that specialist treatment is superior at government hospitals. Indeed, PW1’s stated reason for considering private treatment was confined merely to issues of waiting time and comfort, and not to the quality of care most appropriate for Embun.

Furthermore, the supply of medication to Embun has been provided according to her needs and dispensed for the period leading up to her next appointment. PW1 also explained that the purchase of medicines not supplied by Hospital Sultanah Bahiyah consisted of drugs chosen by PW1, based on discussions with parents of other children in similar circumstances to the Plaintiff, but not prescribed or recommended by any of the Plaintiff’s treating physicians.

The Defendant refers to the case of Kuala Terengganu Specialist Hospital Sdn Bhd & Anor v Ahmad Thaqif Amzar bin Ahmad Huzairi (claiming through his mother and litigation representative, Majdah bt Mohd Yusof) and other appeals [2023] 1 MLJ 281, in which the Court of Appeal held that: “The trial judge had correctly declined to make any awards for claims related to treatment costs and services in respect of medical/dental consultation, physiotherapy, occupational therapy, speech and language therapy, dietician review, hospital S/N 7vT9cwdd80yUnZYwLUwNw admissions, spine and pelvic Xray, tendon release for contractures and counselling since these treatments/services were available cost-free at government hospitals”.

This Court agrees with the Defendant’s submission that there is no necessity for Embun to obtain treatment at a private hospital, given that equivalent facilities are already available at government hospitals.

In Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885 at page 898-899 Abdull Hamid Embong FCJ in clear terms, has lucidly held that: “[36] In this respect, we are in agreement with the contention of the appellant that the case of Chai Yee Chong is not relevant to the present case. We respectfully say that the Court of Appeal had erred in coming to its conclusion that the award made by the learned trial judge was in line with the current practice on the strength of the decision in Chai Yee Chong, which is a case concerning a claim for past private medical treatment. In determining a claim for future medical treatment, be it at a private, or at a public hospital, the question of reasonableness in making such a claim should always be the paramount consideration. The plaintiff not only needs to justify, for instance, why he chooses treatment at a private hospital over a public one, but he must also shows that the amount claimed for such treatment is reasonable. Of course this can be satisfied by the production of compelling evidence for that purpose. It is to be noted that in claiming for the cost of future damage in Gleneagles, evidence was led as to the cost of rehabilitation care of the first respondent and the costing was obtained from the private hospitals/centres.” [Emphasised added] S/N 7vT9cwdd80yUnZYwLUwNw

Based on the judgement by Abdull Hamid Embong FCJ in Inas Faiqah, in determining a claim for future medical treatment, whether at a private or public hospital, the paramount consideration must always be reasonableness. The Plaintiff is required not only to justify why private treatment is preferred over public facilities, but also to demonstrate that the amount claimed is reasonable. Such justification must be supported by compelling and credible evidence. In the present case, however, no evidence was led regarding the actual cost of rehabilitation care for the Plaintiff, nor was reliable costing obtained from private hospitals or centres. The absence of such proof renders the claim speculative and unsupported.

Accordingly, Item Nos. 40–61: Future Damages (Medical, Therapy and Rehabilitation Needs) and Item Nos. 62–72: Future Damages (Medicine, Supplements and Additional Immunisation) are dismissed. This Court holds that the Plaintiff’s claim for future damages under these heads cannot be sustained, as equivalent facilities, treatment, and supplies are already available at government hospitals. The Court concurs with the Defendant’s submission that the Plaintiff’s needs may be adequately met within the public healthcare system, and that no necessity has been demonstrated for recourse to private institutions, non-prescribed supplements, or additional immunisation. In the absence of compelling medical evidence establishing that such private treatment or supplementation is indispensable, the Plaintiff’s claim under these categories must fail. S/N 7vT9cwdd80yUnZYwLUwNw Item no. 73 – 87 : Future Damages (Others) No. Item Plaintiff Defendant 73. the value of care provided by the Plaintiff’s family members. (RM 6,520 per month for 35 years). Not entitled

Item 73: I have allowed this claim in item 4 and 15 above at RM1,500.00 per month. As such for this heading the same rate is used multiply by 291 month (33 years / 396 month deduct pre-trial 105 months = 291 month) = RM436,500.00 as future damages. No. Item Plaintiff Defendant 74. the additional cost of holidays (e.g. when bringing the Plaintiff on a cruise). 175,000 (RM 5,000 per year for 35 years) Not entitled

Item 74: I have allowed this claim in item 8 above at RM1,000.00 per year. As such for this heading the same rate is use with multiply by 24.25 years (291 month) = RM24,250.00. No. Item Plaintiff Defendant 75. the cost of respite care. 175,000 (RM 4,800 per year for 35 years) Not entitled S/N 7vT9cwdd80yUnZYwLUwNw

Item 75: I disallowed this claim as there is no evidence adduced to proof respite care given to the caregivers. No. Item Plaintiff Defendant 76. the cost of employing 2 full-time maid. 6,132,000 (RM20 per hour for 24 hours a day = RM480 per day for 35 years) 306,000.00 (RM1,700 x 12 month x 15 years)

Item 76: Dr Kavitha testified that Embun will require both a full‑time maid and a full‑time trained caregiver, each with distinct roles. The maid is responsible for domestic chores, while the trained caregiver is equipped to manage the complex needs of a child with cerebral palsy such as Embun. When recalled, Dr Ooi conceded that Embun’s grandparents cannot be expected to care for her indefinitely, that she requires round‑the‑clock attention, and that at least two caregivers will be necessary.

The Defendant does not dispute that the Plaintiff’s request for the services of a caregiver or maid could assist the Plaintiff’s grandparents and/or PW1 in managing the Plaintiff’s affairs. DW1, in her report, also acknowledged that the Plaintiff requires full assistance from a caregiver to carry out her daily activities. However, the Defendants disagree with the claim for two caregivers, namely one full-time caregiver and one part-time maid, as suggested in PW2’s report. The Defendants contend that such a request is excessive and unreasonable, as a single maid would suffice to manage the Plaintiff’s affairs and assist S/N 7vT9cwdd80yUnZYwLUwNw Plaintiff grandparent and Plaintiff mother in caring for the Plaintiff. PW1 herself testified that the primary need for a maid was to assist his mother in managing the Plaintiff. The maid proposed by the Defendant is intended solely to attend to the Plaintiff’s needs, given her complete dependence on others, and not to undertake household tasks for the entire family. Furthermore, PW2 testified that during the Plaintiff’s early years, only one maid was necessary. It is only as the Plaintiff grows older an additional part-time maid may be required, as lifting, turning, and bathing her may become difficult for a single maid to manage.

Having considered the evidence and submissions of the Plaintiff and the Defendant, I am satisfied that the Plaintiff’s daily needs is adequately met with the engagement of a single caregiver, supported if necessary by family members. While expert testimony suggested the appointment of two caregivers, such an arrangement is found to be excessive in the circumstances. The Plaintiff presently resides with her grandparents, and in the future will be cared for directly by her parents. In situations where the caregiver requires assistance in lifting, turning, or bathing the Plaintiff, such tasks can reasonably be undertaken with the support of family members. Accordingly, the Court agrees with the Defendant that Embun is entitled to the engagement of a single maid at the rate of RM1,700.00 per month, applying a multiplier of 291 months, and therefore awards the sum of RM494,700.00 under this head of damages. S/N 7vT9cwdd80yUnZYwLUwNw No. Item Plaintiff Defendant 77. the cost of accommodation, utilities, food and other expenses. 210,000 (RM500 per month for 35 years) Not entitled

Item 77: The Plaintiff submits that, in awarding damages for a maid and a trained caregiver, the Court must also take into account the additional costs of accommodation, food, and utilities that Embun’s parents will incur in providing for them. This Court has already awarded damages for the engagement of a maid. Ordinarily, such a maid would reside with the family and share in the household’s food and utilities. These expenses are incidental to the family’s ordinary living arrangements and do not constitute a separate or compensable head of damages. I therefore find this claim unnecessary. Accordingly, the claim under this item is redundant and is hereby disallowed. No. Item Plaintiff Defendant 78. the cost of a full-time nurse / trained caregiver. 2,738,400 (RM 6,520 per month for 35 years) Redundant with item 76.

Item 78: I find that item under this heading redundant with cost of employing maid at item. As such claim under this item is hereby disallowed. S/N 7vT9cwdd80yUnZYwLUwNw No. Item Plaintiff Defendant 79. the cost of purchasing a suitable home. 500,000 Redundant with item 7.

Item 79: I find that the claim by the Plaintiff under this heading as excessive and unreasonable. Embun will forever be cared by her grandparent and parent. I have awarded renovation cost of RM4,000.00 to the home in Kedah as at item 7 above. As such claim under this item is disallowed. No. Item Plaintiff Defendant 80. the cost of renovations and disabled friendly modifications to the home. 5,000 Redundant with item 79.

Item 80: I find that item under this heading redundant with cost of renovation in item 7 and 79 above. employing maid at item. As such claim under this item is hereby disallowed. No. Item Plaintiff Defendant 81. the cost of home remote monitoring (CCTV) with mobile app monitoring. 52,500 (calculated at the rate of 1,500 per year for 35 years) Not addressed. S/N 7vT9cwdd80yUnZYwLUwNw

Item 81: This Court finds no necessity for the installation of CCTV, as the Plaintiff resides with her grandparents and parents within the family home, where she is constantly under their direct supervision and accessible at all times. The purpose of CCTV is ordinarily to provide monitoring in circumstances where the individual may be left unattended or where surveillance is required for safety. In the present case, such considerations do not arise, given the Plaintiff’s continuous presence in the household and the availability of immediate family oversight. Accordingly, the claim under this item is redundant and is hereby disallowed. No. Item Plaintiff Defendant 82. the cost of purchasing a disabled friendly multi-purpose vehicle (MPV), and installing the necessary disabled-friendly modifications. 800,000 (RM 200,000 every 10 years, with a total of 4 purchases) 200,000 (RM 100,000 every 15 years with a total of 2 purchases)

Item 82: The Plaintiff claims the cost of purchasing a disabled-friendly multi-purpose vehicle (MPV) with the necessary modifications, seeking RM200,000.00 for a spacious MPV every ten years with four purchases in total. I find this claim excessive and extravagant. The Defendant proposes instead RM100,000.00 every fifteen years, amounting to two purchases, which is more reasonable and proportionate to the Plaintiff’s needs. I am persuaded by the Defendant’s proposal, as it sufficiently provides for the Plaintiff’s requirements while avoiding unnecessary luxury. S/N 7vT9cwdd80yUnZYwLUwNw Accordingly, the claim under this item is allowed at RM200,000.00. No. Item Plaintiff Defendant 83. the cost of purchasing home rehab equipment. 28,000 (RM 4,000 every 5 years with a total of 7 purchases) Not entitled.

Item 83: The Plaintiff sought damages for the cost of purchasing home rehabilitation equipment. While the Court acknowledges the Plaintiff’s ongoing need for therapy and rehabilitation, such equipment is already available at government hospitals and public healthcare facilities, where the Plaintiff may access treatment without incurring additional private expense. The claim for home-based equipment would amount to duplication of resources and impose an unnecessary financial burden under this head of damages. In the absence of compelling medical evidence establishing that home rehabilitation equipment is indispensable and cannot be substituted by existing public facilities, the Court finds this claim to be unwarranted. Accordingly, the claim under this item is disallowed. No. Item Plaintiff Defendant 84. the cost of milk. 340,200 (RM 810 per month for 35 years) 27,000 (RM 150 per month for 15 years) S/N 7vT9cwdd80yUnZYwLUwNw

Item 84: Claims under this item concerns the cost of milk. The Plaintiff proposed RM810.00 per month for 35 years, while the Defendant suggested RM150.00 per month for 15 years. I find the Defendant’s proposal as fair and reasonable. Accordingly, the claim under this item is allowed at RM150.00 × 291 months = RM43,650.00. No. Item Plaintiff Defendant 85. the cost of purchasing diapers, wipes, creams and other consumables. 336,000 (RM 800 per month for 35 years) 27,720 (RM 154 per month for 15 years)

Item 85: Claims under this item concerns the cost of purchasing diapers, wipes, creams and other consumables. The Plaintiff proposed RM800.00 per month for 35 years, while the Defendant suggested RM154.00 per month for 15 years. I find the Defendant’s proposal as fair and reasonable. Accordingly, the claim under this item is allowed at RM154.00 × 291 months = RM44,814.00. No. Item Plaintiff Defendant 86. the cost of rental of equipment, such as CPAP machine and air purifier. 63,000 (RM 150 per month for 35 years) Not addressed

Item 86: The Plaintiff has already claimed RM8,266.12 which includes RM350.00 personally paid towards the purchase of the C-PAP machine. The remaining cost of the C-PAP machine was S/N 7vT9cwdd80yUnZYwLUwNw borne by Hospital Sultanah Bahiyah, while the wheelchair was funded by Pusat Zakat Kedah. This Court has allowed that claim under item 11 above. The Plaintiff now seeks future damages for the rental of a C-PAP machine and an air purifier. I find this claim untenable, as it is inconsistent with the earlier claim for purchase under special damages. To permit both would amount to duplication and unjustified double recovery. Accordingly, the claim under this item is disallowed. No. Item Plaintiff Defendant 87. the cost of travel and other incidental expenses. 210,000 (RM 500 per month for 35 years) Not addressed

Item 87: I have allowed this claim in item 2 above at RM500.00 per month. As such for this heading the same rate is use with multiply by 291 months = RM145.500.00. J.

The Plaintiffs seek costs comprising: (a) a getting-up fee of RM150,000.00 for the liability proceedings; (b) a getting-up fee of RM100,000.00 for the quantum proceedings; and

out-of-pocket expenses amounting to RM36,159.72. The Plaintiffs submit that substantive and complex legal issues were raised. The Defendant, however, contends that the Court should award only reasonable costs, without prejudicing the Defendant’s rights in this action, particularly as liability was admitted at the last minute before trial. S/N 7vT9cwdd80yUnZYwLUwNw

I allowed costs for liability and quantum at RM150,000.00 plus out of pocket expenses of RM36,159.72.

I award interest as follows:

4% p.a. on special damages from 15 May 2017 to the date of admission of liability on 11 December 2024;

8% p.a. on pre-trial damages, general damages and loss of amenities of life from the date of service of the writ (11 May 2022) up to the date of judgment on liability on 11 December 2024;

5% p.a. on judgment sum (including cost) from 11 December 2024 (the date of admission of liability) until full payment. The date of judgment pre-trial damages, general damages and loss of amenities of life from the date of service of the writ (11 May 2022) up to the date of judgment on liability on 11

167.

In summary my decision on quantum of damages are as follows:

Special Damages 314,686.12 2. Pre-Trial Damages (11 May 2022 to date of Judgment, 25 Feb 2026 – 45 months 238,500.00 3. General Damages 400,000.00 4. Aggravated Damages No award 5. Life Expectancy 33 years 6. Multiplier 25 years (33 – 8)

Future General Damages 200,000.00 8. Future Damages (Medical, Therapy and Rehabilitation

Future Damages (Medicine, Supplements and Additional

Future Damages (Others) 1,389,414.00 11. Cost 186,159.72 Total 2,735,009.84

For the reasons adumbrated above I allowed the Plaintiff’s claim to the extent set out herein with costs subject to allocatur. Dated: 7 May, 2026 (MOHD AIMI ZAINI BIN MOHD AZHAR) Judicial Commissioner High Court Malaya Alor Setar, Kedah Darul Aman S/N 7vT9cwdd80yUnZYwLUwNw For the Plaintiff: Manmohan Singh Dhillon (together with Desmond Mun and Alicia Chin) Messrs. PS Ranjan & Co For the Defendants: Siti Asmath Binti Che Man Senior Federal Counsel Attorney General Chamber S/N 7vT9cwdd80yUnZYwLUwNw