XXXX v 1. ) Kerajaan Malaysia (WA-21NCvC-7-01/2023)

Kerajaan Malaysia

Dr Soo Mun Yee

Dr Tan Chong Seong

Dato’ Dr Ravindran Jegasothy

Dr Firdaus bin Abd Halim

Dr Eyrique Goh Boay Heong

Dr Goh Chong Tien

Dr Neoh Siew Hong

Dr Farah Inaz ...Defendan-defendan GROUNDS OF JUDGMENT Introduction 1. The Plaintiff in this case was born in Hospital Kuala Lumpur on 11th February 2010. This action was filed through his mother and litigation representative on 11th January 2023.

In his Amended Statement of Claim, the Plaintiff alleged professional medical negligence on the part of the Defendants as the cause of his having suffered severe brain damage. 06/09/2025 00:45:09 WA-21NCvC-7-01/2023 Kand. 69 S/N 9yt8xZ7frkuujRfJbUMxiQ GUAMAN SIVIL NO.: WA-21NCvC-7-01/2023 3. The Defendants are represented by the Attorney General of Malaysia, whose chambers filed their Statement of Defence and sent a Federal Counsel to appear for them during the trial of this action.

Learned counsel for the Plaintiff conceded that the 5th to 9th Defendants should not be held liable.

On the issue of liability of the remaining defendants, the Plaintiff called a senior obstetrics and gynaecology (O&G) consultant (Dr.Milton Lum) to give expert evidence.

For the Defendants, only the 3rd Defendant, namely Dr Tan Chong Seong, testified as a witness of facts on the issue of liability. The 4th Defendant Dato’ Dr Ravindran Jegasothy did not attend court to give evidence. No expert was called by the Defendant to testify on the issue of liability. The Defendants did call an expert witness to give evidence on the issue of life expectancy and quantum.

In fairness to the 3rd and 4th Defendants respectively, I ought to mention two facts about them at the outset. First, the 3rd Defendant was a young medical officer in the Obstetrics and Gynaecology (O&G) Department in Hospital Kuala Lumpur at the material time in February 2010. He was not a surgeon then but managed to perform an emergency surgery known as Lower Section Caesarean Section on the Plaintiff’s mother to deliver the Plaintiff into this world. Secondly, the 3rd Defendant testified that the 4th Defendant – who was the Head of the O&G Department at the material time – was S/N 9yt8xZ7frkuujRfJbUMxiQ unable to attend Court to testify at the trial of this action because he had to undergo brain surgery recently to remove a brain tumour.

The 2nd Defendant was only a houseman at the material time. There is no evidence of any negligence on the part of the 2nd Defendant. On a balance of probabilities, I find that the Plaintiff has proven that the 3rd Defendant and 4th Defendant were negligent on 11th February

Since two doctors who were serving in a government hospital are found liable, this Court holds the Government of Malaysia (the 1st Defendant) vicariously liable.

As there is no appeal filed by the Defendants, I shall not discuss the issue of liability in great detail. Instead, I shall explain in detail my reasons for accepting the Defendants’ expert evidence that, based on her clinical experience as well as medical literature, the maximum life expectancy of the Plaintiff is 29 years.

Each side had called an expert witness to testify on the life expectancy of the Plaintiff and the amenities that he will require in the future. A table showing the items and quantum claimed by the Plaintiff’s learned counsel and the learned Federal Counsel’s response respectively shall be attached hereto. The amount that this Court is awarding as well as my reasons for arriving at the respective amount or for awarding a lesser amount or declining to make an award, are stated in the first column on the right of the table.

There are many items for which this Court is awarding as claimed by the Plaintiff. However, some of the items claimed are, with S/N 9yt8xZ7frkuujRfJbUMxiQ respect, unjustified and/or exaggerated. Thus, this Court is constrained to either refuse to award or reduce the quantum to be awarded. The Plaintiff’s Claim 12. On the issue of liability, the Plaintiff’s main contention that the period known as Decision-to-Delivery Interval should be within 30 minutes. The Plaintiff contends that there were negligent delays in delivering him, which delays were caused as a result of both human errors and systems failure after cardiotocography (“CTG”) monitoring of the Plaintiff’s mother had revealed an abnormal tracing. In short, learned counsel for the Plaintiff contends that a baby must be delivered with a 30 minutes time frame, from the time it is decided that an emergency Lower Section Caesarean Section (“emergency LSCS”) is required to take the baby out surgically, commonly known in layman terms as “Caesarean Operation”, and the delay in delivering the Plaintiff had caused him to suffer irreversible cerebral palsy.

In this case, the 3rd Defendant who was the medical officer on duty then, decided at 2.20pm that an emergency LSCS was required. However, it took him longer than 30 minutes to perform the surgery as he completed delivery of the Plaintiff at 3.29pm.

The Plaintiff’s learned counsel contends that the Plaintiff’s life expectancy is 44, based on medical literature and the report of the Plaintiff’s expert. By using a multiplier of 30, i.e. claiming future damages for the next 30 years, he worked out a massive claim as damages; for the past 14 years and for the next 30 years. S/N 9yt8xZ7frkuujRfJbUMxiQ The Defendants’ Defence 15. In his evidence, the 3rd Defendant testified that placental separation in utero was suffered by the Plaintiff’s mother, i.e. whilst the Plaintiff was still in his mother’s womb, and that completing the LSCS surgery within 30 minutes would have made no difference. He explained that severe placental separation had resulted in massive bleeding, and therefore irreversible brain damage to the Plaintiff in utero.

On the issue of life expectancy and quantum of damages, as mentioned above, the Defendants’ expert opined, based on her clinical experience as well as medical literature, that the life expectancy of the Plaintiff is 25, and the maximum is 29. As for the multiplier, she opines that a multiplier of 8 would be fair because a discount of 1/3 would be justified, as was upheld by the Court of Appeal in Inas Faiqah v Kerajaan Malaysia [2015] 3 MLJ 498 to factor in contingencies which can reduce the life expectancy of the Plaintiff.

The reasons and figures on quantum of damages submitted by the learned Federal Counsel are also stated in the aforesaid table which is attached hereto below. Finding on Liability 18. As mentioned above, the 4th Defendant – who was the Head of the O&G Department at the material time – was unable to attend Court to testify at the trial of this action because he had to undergo brain surgery recently to remove a brain tumour. I had no reason to doubt this fact. Be that as it may, the evidence of the 3rd Defendant is that S/N 9yt8xZ7frkuujRfJbUMxiQ he – who was a young medical officer then – had to ‘hold the fort’ on that fateful day in February 2010 without any O&G consultant being present. The 3rd Defendant testified that he had to run up the stairs to the 4th Defendant’s office on the fourth floor to brief him and obtain the green light for him to perform an emergency LSCS on the Plaintiff’s mother.

Even though the 3rd Defendant managed to perform the emergency LSCS successfully to deliver the Plaintiff into this world, it was pointed out by the Plaintiff’s expert witness (Dr.Milton Lum) that the 3rd Defendant took much longer than 30 minutes.

I find that there is no strict rule requiring the period known as Decision-to-Delivery Interval (“DDI”) to be within 30 minutes. It is a timeframe guideline recommended based on the opinion of experts and is also dependent on hospital feasibility. I take judicial notice that several professional bodies, such as the American College of Obstetricians and Gynecologists and Royal College of Obstetricians and Gynaecologists, recommend that 30 minutes timeframe guideline in urgent cases.

Whilst there is no doubt that generally the quicker a distressed baby in his/her mother’s womb is delivered via an emergency LSCS surgery, the better it should be for both the mother and the baby, the neonatal outcome depends on multiple clinical factors. A distressed baby delivered within a 30 minutes DDI may still suffer brain damages while another distressed baby delivered after 30 minutes may turn out fine. S/N 9yt8xZ7frkuujRfJbUMxiQ GUAMAN SIVIL NO.: WA-21NCvC-7-01/2023 22. The Court of Appeal in its very recent judgment in Dr Jerilee Mariam Khong & Ors v. Yusnita Johari 2025] CLJU 1819 summed up the law on medical negligence in Malaysia. By applying Dr Jerilee Mariam Khong (supra) and the earlier authorities discussed therein to our present case, I find that the 3rd and 4th Defendants ought to be held liable due to the following reasons. First, the 3rd Defendant was aware from the medical records that the Plaintiff’s mother was suffering from pregnancy-induced hypertension and was therefore a high-risk patient for abruptio placenta. This view is as expressed by the Plaintiff’s expert Dr.Lum during examination-in-chief. A screenshot from the Notes of Evidence is pasted below:

The Plaintiff’s expert (Dr. Milton Lum), who is an experienced O&G consultant, had himself served at the O&G Department of Hospital Kuala Lumpur in the past, further confirmed that given the clinical S/N 9yt8xZ7frkuujRfJbUMxiQ findings then, it was necessary to perform an emergency LSCS surgery in any event unless the cervix is already opened for vaginal delivery to be performed. The said expert’s evidence was as follows:

The following part of the evidence of the Plaintiff’s expert (Dr. Milton Lum) further convinced me that it was feasible to perform an emergency LSCS surgery within 30 minutes at the material time as the Operating Theatre was adjacent to the Labour Ward. Thus, when considered with other evidence regarding the Plaintiff’s mother’s hypertension, CTG data, etcetera, on a balance of probabilities, the 3rd Defendant ought to be held liable for negligence. A screenshot of the expert’s evidence is pasted below: S/N 9yt8xZ7frkuujRfJbUMxiQ

From 3rd Defendant’s evidence of having to run to the top floor to obtain the approval of the Head of Department, i.e. the 4th Defendant, it is safe to infer that the 4th Defendant was on duty at the material time. Unfortunately, he did not deem it necessary to rush down to the 1st floor together with the 3rd Defendant – who was a young medical officer in February 2010 – to attend to the Plaintiff’s mother.

As mentioned above, on liability and causation, I concluded that the 3rd Defendant and 4th Defendant are to be held liable. Finding on Life Expectancy 27. The “life expectancy” of the Plaintiff is a key issue in the determination of the quantum of future damages because that figure will determine the multiplier to be used in computing future damages.

This all-important issue of life expectancy of the Plaintiff was dealt with in the testimony of the Plaintiff’s expert witness Dr.Aishah binti Ahmad Fauzi as well as in the testimony of the Defendant’s expert S/N 9yt8xZ7frkuujRfJbUMxiQ witness Dr. Ainilhawa binti Ibrahim. Both ladies have affirmed affidavits to exhibit their respective reports respectively.

Both experts are specialists in Rehabilitation Medicine. The Plaintiff’s expert Dr.Aishah currently works with a private company by the name of Daehan Rehabilitation Services Sdn Bhd. Her clinic is located in Hospital Putrajaya.

As for the Defendant’s expert Dr.Ainilhawa, she has been serving in the Department of Rehabilitation Medicine, Hospital Tengku Ampuan Rahimah, Klang since March 2017.

A clinical system known as the Gross Motor Function Classification System (“GMFCS”) is a widely used five-level clinical system to classify the gross motor function of children and youth with cerebral palsy. Both experts agree that the Plaintiff is categorised as a Level 5 GMFCS cerebral palsy patient, i.e. the most severe category as he is unable to do anything on his own; unable even to just lift his head on a prone position (when laid on his chest) and has to be tube-fed.

An excerpt from the Plaintiff’s expert’s report on life expectancy of the Plaintiff is stated verbatim below so that I may explain why this Court is constrained to reject the second part of Dr.Aishah’s opinion about the Plaintiff’s life expectancy of “44 years old”: “2.2 Life expectancy Thus far, there are no studies available to investigate the survival trend and life expectancy of children with CP in Malaysia.” Factors that significantly related to life expectancy in CP are: S/N 9yt8xZ7frkuujRfJbUMxiQ

Gross motor function / ambulation function

Feeding status (tube feed, feed by others or self-feed) FM’s mobility and motor function are consistent with GMFCS V, in which he is total dependency on others for mobility even to turn himself. He need assistant in transfers and all aspects of activities of daily livings (ADLs). Based on the available study by Brooks et.al on life expectancy for children with CP at 4 years old, a CP child who does not lift head in prone position and tube fed, has the probability of 58% to survive up until 15 years old and 26% to survive up to 30 years old (Figure 3 – Table 11). FM is now 13 years old 5 months, which in less than 2 years will reach 15 years old. Once he reaches 15 years old, his life expectancy would be up to 29 years (cannot lift head and TF – additional 14 years). Once he reaches, 30 years old, his life expectancy would be up to 44 years old (additional 14 years) (Figure 4 – Table III). Although this study population on CP survival was based in California, the healthcare provided for individuals with CP includes all medically indicated care and long-term services (housing, physical and occupational therapy, speech and language therapy) regardless of personal or family income. …” (emphasis added)

Dr.Ainilhawa (the Defendant’s expert) also referred to the same medical literature “Brooks et. al. Recent trends in cerebral palsy survival. Part II: individual survival prognosis. Developmental Medicine & Child Neurology 2014, 56: 1065-1071. DOI:

10.1111/dmcn.12519” to support her professional assessment of S/N 9yt8xZ7frkuujRfJbUMxiQ the Plaintiff. The critical part of the Defendant’s expert evidence is as follows: “In another study by Brooks, it was found that children who are tube fed and who did not lift their heads when in the prone position (i.e. children with the most severe disability in GMFCS level V), the adjusted-to-2010 survival probabilities to ages 10, 20 and 30 years were 75%, 41%, and 26% and the median age at death is 17.1 years. It is thought that general life expectancy changes should not be used in most severe cases and no current justification for adding future life expectancy changes as they will mostly continue to apply to infancy and those over 40 years and far less in between. Based on current literature, latest assessment, my clinical knowledge and experience, I think this patient will likely survive up to the age of 25 years old.”

Both experts relied heavily on research data from USA published by Jordan C Brooks et al which was based on data collected over a 28- year period in California. However, the excerpts from the publication shown in the Plaintiff’s expert’s report is not clearly legible. The copy of the said publication filed by the Plaintiff’s solicitors (Enclosure 29 in the e-filing system) is also barely legible, as shown in the screenshot below: S/N 9yt8xZ7frkuujRfJbUMxiQ GUAMAN SIVIL NO.: WA-21NCvC-7-01/2023 35. Thus, I had to look up the source of the said publication for a clearly legible copy to ensure a clear understanding of the same. Fortunately, in this day and age, it is possible to look up scientific publications online. After finding it published online in https://pubmed.ncbi.nlm.nih.gov/25041081/ which is the archive for National Library of Medicine, I checked the contents to ensure that it is indeed the same article cited by both experts, bearing the title: “Recent trends in cerebral palsy survival. Part II: individual survival prognosis”. The researchers are Jordan C Brooks, David J Strauss, Robert M Shavelle, Linh M Tran, Lewis Rosenbloom and Yvonne W Wu, which were stated as “Brooks et al.” meaning Brooks and others. A complete copy of their paper (referred to by both experts (hereinafter referred to as “the Brooks Study”) may be seen online by using this link: https://onlinelibrary.wiley.com/doi/10.1111/dmcn.12519

For convenient reference, I shall paste screenshots of the relevant passages and tables from the Brooks Study, which is a report based on data collected over a 28-year period of children and youth with cerebral palsy (“CP”) based in California, USA. At this juncture, it is pertinent to point out that the Brooks Study show that the life expectancy of the general population in the state of California is 80 years old, as shown in the screenshot below:

This Court takes judicial notice that the life expectancy of the general population in Malaysia is significantly lower than that of the general population of California, as could be seen in the following S/N 9yt8xZ7frkuujRfJbUMxiQ screenshot from the Department of Statistics of Malaysia. It shows that the life expectancy of those born in Malaysia in year 2012 is only 74.4 (versus 80 for the general population in California where the Brooks Study was conducted).

The use of the GMFCS for classification in the said study is seen in the following passage of the Brooks Study: S/N 9yt8xZ7frkuujRfJbUMxiQ “The severity of motor disability was recorded for the following motor skills: head-lifting in the prone position, rolling, sitting, crawling, and walking. Using this motor function data, we classified individuals into one of five levels on the Gross Motor

It is pertinent to note that the Brooks Study shows that the median age at death in tube-fed children who did not lift their heads in the prone position is 17.1 years. The median age before adjustment (as pointed out in the Brooks Study) was only 14.6 years. The Plaintiff is clearly in this category as he is tube-fed and unable to lift his head in the prone position, i.e. when laid on his chest). It is be noted that the Brooks Study mentions adjusted survival probability which has been increased in California where the life expectancy is higher than in Malaysia. A screenshot of the relevant passage is pasted below:

Next, it is noted that only 41% of the children with CP who are tube-fed and do not lift their head in the prone position survive to the age of 20 years old. This is in the following passage which explains Table 2 in the Brooks Study: S/N 9yt8xZ7frkuujRfJbUMxiQ

The Plaintiff is in the same category as those children with CP who are tube-fed and do not lift their head in the prone position. As pointed out above, only 41% of them survive to the age of 20 years old; less than 50% meaning that more than half of them would have passed away before the age of 20.

Table 2 also shows the probabilities of children with CP who are tube-fed and do not lift their head in the prone position, i.e. the same as the Plaintiff, surviving to 15 years old is 58%, i.e. more than 50% chance.

Since Table 2 shows the probabilities of surviving till the age of 15 is 58%, i.e. more than 50%, meaning that it is more likely than not. Hence, it is not surprising that the Plaintiff is alive at the age of 15. S/N 9yt8xZ7frkuujRfJbUMxiQ However, it is noted that the chances of his surviving to the age of 20 is only 41%, and to the age of 30 is only 26%, far below 50%.

Learned counsel for the Plaintiff has relied on Table 3 in the Brooks Report to submit that there is a fair chance of the Plaintiff surviving to the age of 44. A screenshot of the whole Table 3 is pasted below:

The abbreviations: TF means “Tube-fed”, “FBO” means “Fed by Others” while “SF” means “Self-Fed” which refer to CP children S/N 9yt8xZ7frkuujRfJbUMxiQ which are not in such severe condition as the Plaintiff here. “TF” is applicable to the Plaintiff.

As the above screenshot of Table 3 is legible but also contains data about CP children who are in better condition; who can lift their head or chest, roll and sit, and also those who can walk unaided, a clear legible screenshot of the relevant part of the said Table 3, i.e. the part referring to Male CP at the age of 15 who cannot lift head and are tube-fed, is pasted below for easier reference: S/N 9yt8xZ7frkuujRfJbUMxiQ GUAMAN SIVIL NO.: WA-21NCvC-7-01/2023 47. As mentioned above, “TF” is applicable to the Plaintiff as he is tube-fed and cannot lift his head. All that Table 3 shows is that the Plaintiff, at the age of 15, has a chance of surviving for another 14 years, i.e. till the age of 29.

With respect, the data in Table 3 does NOT allow the reader to extrapolate to add another 14 years after 30 years old, and to conclude that the Plaintiff has a life expectancy of 44.

To recapitulate (see para 32 above), the Plaintiff’s expert had opined: “Once he reaches 15 years old, his life expectancy would be up to 29 years (cannot lift head and TF – additional 14 years). Once he reaches, 30 years old, his life expectancy would be up to 44 years old (additional 14 years).”

This Court may and will accept the first statement in the Plaintiff’s expert report as quoted above: “Once he reaches 15 years old, his life expectancy would be up to 29 years (cannot lift head and TF – additional 14 years)” because he was almost 15 years old at the date of the trial in 2024 – and therefore the reference to a CP person who is 15 years old is applicable to him. This statement is consistent with the opinion of the Defendant’s expert witness (Dr.Ainilhawa).

However, with respect, the Plaintiff’s expert’s second statement is unsupported by her reference to the Brooks Study, when she attempted to extrapolate by stating: “Once he reaches 30 years old, his life expectancy would be up to 44 years old (additional 14 years).” This statement will be valid if she is assessing a patient who S/N 9yt8xZ7frkuujRfJbUMxiQ is already 29 years old. In our present case, the Plaintiff was barely reaching the age of 15 during the trial. He had the odds of 58% for him to survive past the age of 15 – which has been proven accurate. However, the odds of him now surviving till the age of 20 is only 41%. The probabilities of him surviving to the age of 29 is only 26%.

Therefore, with respect, the Plaintiff’s expert has erred in relying on the Brooks Study to extrapolate further to say: “Once he reaches 30 years old, his life expectancy would be up to 44 years old” because the probability of him surviving till 29 years old is only 26%.

When the Plaintiff was brought to Court in a pram during the trial, most of those present in Court, including me who was sitting as the trial judge, could not help feeling sad for him. I have no doubt that both experts felt sympathy for the Plaintiff too. However, with respect, it is incumbent upon us to detach ourselves emotionally when it comes to professional evaluation of this case. I bear in mind that damages to be awarded to the Plaintiff must be in accordance with legal principles and not sympathy. There should be no unjust enrichment of the Plaintiff at the expense of taxpayers of Malaysia. After reading both reports and poring through the Brooks Study – which was heavily relied on by both experts – I am constrained to rule that there is no basis whatsoever to support an extrapolation beyond 29 years as the life expectancy of the Plaintiff here. My reasons are as explained above.

Learned counsel for the Plaintiff has submitted that there had been cases where other learned judges had agreed with some experts’ S/N 9yt8xZ7frkuujRfJbUMxiQ reports, which were also based on the said Brooks Study, and decided that the plaintiffs there had a much higher life expectancy. On this point, I respectfully state that it could have been because the facts of those cases were different or because clear legible excerpts from the Brooks Study had not been made available to the court. As pointed out above in para 35, I had to search online for a clear legible copy of the whole Brooks Study.

On the Plaintiff’s life expectancy issue, I wish to add that Dr.Ainilhawa had, based on her clinical experience and physical examination of the Plaintiff and the data in Brooks Study, formed her professional opinion that the Plaintiff’s life expectancy is 25 years. She did testify that the very maximum is 29. I have no doubt that she had considered the factors that could reduce the life expectancy of the Plaintiff, such as epilepsy, risk of respiratory or lungs infections, etcetera.

I would therefore humbly stand by my analysis of the facts and evidence, and accept the expert report tendered by the Defendant’s expert Dr.Ainilhawa as the cogent one to assist me in deciding the life expectancy issue.

However, this Court will not apply the one-third (1/3) deduction proposed by the Defendant’s expert in deciding on the multiplier. It is my judgment that this Court ought to use 29 years as the life expectancy of the Plaintiff and a multiplier of 14 for the calculation of future damages – as shown in the table of damages below. S/N 9yt8xZ7frkuujRfJbUMxiQ Damages 58. The Plaintiff’s learned counsel submitted that besides Pre-trial Damages, Special Damages, General Damages and Future Damages, Aggravated Damages should also be allowed.

It was held in Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur [2018] 1 MLJ 784 that for aggravated damages to be justified – which is a species of compensatory damages awarded as additional compensation – there must have been intangible injuries to the interest or personality of the plaintiff exacerbated by the exceptional conduct of the defendant.

I find that in this case, there is no evidence to support the Plaintiff’s plea for aggravated damages. As a matter of fact, the Plaintiff waited more than 12 years to sue the Defendants. Surely, the Defendants would require time to dig up their old records and to contact the doctors who attended to the Plaintiff’s mother 12 long years ago. The Plaintiff ought to be thankful that the Defendants did not plead/pursue a statutory defence of limitation. Hence, this Court will reject the Plaintiff’s claim for aggravated damages. Conclusion 61. The itemised details of damages awarded and brief reasons are stated in the table attached hereinbelow, which also shows that this Court has decided to award General Damages of RM300,000.00, Special Damages of RM458,400.00, Pre-trial Damages of RM51,300.00 and Future General Damages of RM1,476,790.00. The grand total of damages awarded is RM2,286,490.00. S/N 9yt8xZ7frkuujRfJbUMxiQ

As for interest, I am of the view that interest at 5% per annum ought to be awarded on the General Damages from the date of the of the incident on 11th February 2010 till the date of payment because pain, suffering and loss of amenities of life were suffered by the Plaintiff from the time of the incident. As for Special Damages which were incurred over a period of time prior to the late filing of the Writ on 11th January 2023, interest at 5% per annum ought to be awarded from the date of the Writ to the date of payment.

The Plaintiff shall be receiving the judgment sum of RM1,476,790.00 awarded as Future General Damages many years earlier than when payments would be incurred by the Plaintiff (if at all). Thus, I am of the view that if interest is to be awarded from an earlier date on this sum of RM1,476,790.00, it would lead to unjust enrichment of the Plaintiff at the expense of taxpayers of Malaysia. Therefore, this Court should not award interest on Future General Damages from the date of the Writ as prayed by the Plaintiff’s learned counsel. This Court will therefore award interest at 5% per annum on Pre-trial Damages and Future General Damages from the date of judgment, to be calculated till the date of payment. Date of Decision: 6th May 2025. ………………………… Gan Techiong Judicial Commissioner High Court of Malaya at Kuala Lumpur (NCvC9) 23 S/N 9yt8xZ7frkuujRfJbUMxiQ Table of Damages, Costs & Interests Awarded Item Plaintiff Defendants Judgment & Reasons for disputed items

General damages for pain and suffering and the loss of amenities of life 500,000-00 300,000-00 300,000.00 2. Aggravated damages 1,000,000-00 Not entitled It was held in Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur [2018] 1 MLJ 784 that for aggravated damages to be justified – which is a species of compensatory damages awarded as additional compensation – there must have been intangible injuries to the interest or personality of the plaintiff exacerbated by the exceptional conduct of the defendant. There is no evidence to support the Plaintiff’s plea for aggravated damages. As a matter of fact, the Plaintiff waited 11 years to sue the Defendants. Surely, the Defendants would require time to dig up and peruse their old records after 11 years. The Defendants did not plead/pursue a statutory defence of limitation. There is no basis to claim aggravated damages. Hence, this Court disallowed the claim for aggravated damages. Total General Damages RM300,000.00 awarded S/N 9yt8xZ7frkuujRfJbUMxiQ B. Special Damages from the date of the incident, 11 February 2010 until the date of filing of the claim, 11 January 2023 (12 years 10 months = 154 months)

the cost of hospital and medical expenses 105,600-00 Not entitled This Court awarded only RM5,000 as nominal damages because the Plaintiff failed to adduce evidence to prove. As the Plaintiff’s mother is working in Hospital Kuala Lumpur, the Plaintiff (as an OKU) has been receiving free treatment at government hospitals most of the time. Hence, nominal damages of RM5,000.00 should be more than sufficient to cover those odd occasions when payments were required.

the cost of travel expenses 213,600-00 Not entitled Not justified/proven. Special Damages must be specifically proved. There was no evidence adduced by the Plaintiff to prove this claim of RM213,600-00 as “cost of travel expenses”. It is also not justified to claim cost of travel expenses which are expenses that everybody bringing a child to hospital will incur.

the cost of purchasing a suitable vehicle 109,244-00 Not entitled Not justified/proven. The Plaintiff’s father’s car was used for himself as well as for his whole family. Special Damages must be specifically proved. There was no evidence adduced by the Plaintiff to prove this claim. S/N 9yt8xZ7frkuujRfJbUMxiQ

the cost of purchasing suitable accommodation 586,686-00 Not entitled Not justified/proven. In any event, the Plaintiff’s family required accommodation to live in. Special Damages must be specifically proved. There was no evidence adduced by the Plaintiff to prove this claim.

the cost of modifications to accommodation 13,100-00 Not entitled Not justified/proven. Special Damages must be specifically proved. There was no evidence adduced by the Plaintiff to prove this claim.

the cost of equipment and appliances 112,590-00 Not entitled Not justified/proven. Special Damages must be specifically proved. There was no evidence adduced by the Plaintiff to prove this claim.

the cost of special food, vitamins and nutritional supplements 200,200-00 Not entitled RM118,000.00 was awarded, i.e. for 118 months. The Plaintiff did not have any “special food”. The same expenses would have been payable, in any event, even if the Plaintiff was a normal baby, for at least 36 months. Hence, 154months less 36 months x RM1,000 per month: 118 months x 1,000 = RM118,000

the cost of daily necessities such as diapers, wipes, creams, feeding tubes, syringes, etc 261,800-00 Not entitled RM94,400 was awarded, i.e. for 118 months. The same expenses would have been payable, in any event, even if the Plaintiff was a normal baby, for at least 36 months. Hence, 154months less 36 months x RM800 per month: 118 months x 800 = RM94,400 S/N 9yt8xZ7frkuujRfJbUMxiQ

the cost of vacations 95,000-00 Not entitled Not Justified. Vacations are not a birth right in Malaysia.

the cost of value of care provided to the Plaintiff by his family members and others 462,000-00 Not entitled RM231,000.00 was awarded for the whole 154 months. 154months x RM1,500 per month: = RM231,000.00 Evidence shows that the Plaintiff was cared for by his maternal grandparents. RM1,500 per month solely for this item is fair.

the cost of obtaining an order for pre-action discovery of medical records 10,000-00 Not entitled RM10,000.00 was allowed as claimed. Total Special Damages - RM458,400.00 awarded S/N 9yt8xZ7frkuujRfJbUMxiQ Item Plaintiff Defendants Judgment& Reasons for disputed items C. Pre-trial Damages (from the date of the filing of the claim, 11 January 2023 to the Plaintiff’s 15th birthday on 11 February 2025 (25 months)

the cost of hospital and medical expenses 11,500-00 Not entitled Not proven. The Plaintiff failed to adduce evidence to prove. As the Plaintiff’s mother is working in Hospital Kuala Lumpur, the Plaintiff (as an OKU) has been receiving free treatment at government hospitals most of the time.

the cost of travel expenses 6,900-00 Not entitled Not proven. The Plaintiff failed to adduce evidence to prove. After writ filed, such claims should be strictly proved.

the cost of equipment and appliances 4,600-00 Not entitled Not proven. The Plaintiff failed to adduce evidence to prove. After writ filed, such claims should be strictly proved.

the cost of special food, vitamins and nutritional supplements 2,300-00 Not entitled RM2,300.00 was allowed as claimed.

the cost of daily necessities such as diapers, wipes, creams, feeding tubes, syringes, etc 11,500-00 Not entitled RM11,500.00 was allowed as claimed. S/N 9yt8xZ7frkuujRfJbUMxiQ

the value of care provided to the Plaintiff by his family members and others 69,000 Not entitled RM37,500.00 was allowed for the whole 25 months. RM1,500 per month solely for this item is fair. RM1,500 x 25 months = RM37,500.00 Total Pre-trial Damages – 51,300.00 Future General Damages Item Plaintiff Defendants Judgment& Reasons for Disputed Items Life Expectancy of the Plaintiff 44 25 Please refer to the paragraphs above for my reasons in ruling that this Court ought to assume that the Plaintiff will live till the age of 29. Multiplier 30 (calculated based on a life expectancy of 44, minus the Plaintiff’s current age of 14) 8 (calculated based on a life expectancy of 25, minus the Plaintiff’s current age of 14, minus 1/3 for contingencies) 14 (calculated based on life expectancy of 29 minus the Plaintiff’s current age of 15) No deduction was made for contingencies. Item Plaintiff Defendants Judgment & Reasons for Disputed Items S/N 9yt8xZ7frkuujRfJbUMxiQ D. Future General Damages (Medical and Rehabilitation)

the cost of consultation with rehabilitation physician 22,500-00 (250-00 per visit, 3 times per year for 30 years) Not entitled (alternatively, 30% deduction from the Plaintiff’s proposal) 10,500.00 The Plaintiff is 15 years old and there was no claim made for this item earlier, neither under Special Damages nor under Pre-trial Damages. That was, on a balance of probabilities because the reality is that there is no need for such consultation with any “rehabilitation physician”. Even if there is/was such a need, the Plaintiff is entitled to free consultation in government hospitals. Be that as it may, this Court decided to give the Plaintiff the benefit of the doubt and awarded RM250 per visit, thrice a year for 14 years. (RM250 x 3 x 14 = RM10,500.00 21. the cost of consultation with paediatric neurologist 30,000-00 (250-00 per visit, 4 times per year for 30 years) Not entitled (alternatively, 30% deduction from the Plaintiff’s proposal) 10,500.00 The Plaintiff is 15 years old and there was no claim made for this item earlier, neither under Special Damages nor under Pre-trial Damages. There is no future need for consultation with any “paediatric neurologist” as he has passed the age of seeing child specialists. Even if there is/was such a need, the Plaintiff is entitled to free consultation in government hospitals. Be that as it may, this Court decided to give the Plaintiff the benefit of the doubt and awarded RM250 per visit, thrice a year for 14 years (RM250 x 3 x 14 = RM10,500.00 S/N 9yt8xZ7frkuujRfJbUMxiQ

the cost of consultation with paediatric orthopaedic surgeon 22,500-00 (250-00 per visit, 3 times per year for 30 years) Not entitled (alternatively, 30% deduction from the Plaintiff’s proposal) 10,500.00 The Plaintiff has passed the age of seeing child specialists. Be that as it may, this Court decided to give the Plaintiff the benefit of the doubt and awarded RM250 per visit, thrice a year for 14 years (RM250 x 3 x 14 = RM10,500.00

the cost of dental consultation with special needs dentistry 18,000-00 (300-00 per visit, 2 times per year for 30 years) Not entitled (alternatively, 30% deduction from the Plaintiff’s proposal) With respect, not entitled. The Plaintiff does not use his teeth or mouth to eat. In any event, he is entitled to receive free treatment in Government dental clinics.

the cost of physiotherapy 2,400-00 (200-00 per visit, 3 times per week for the first month) Then 72,000-00 (200-00 per visit, once a month for 30 years) Not entitled (alternatively, 30% deduction from the Plaintiff’s proposal) Not entitled In any event, the Plaintiff is entitled to receive free treatment in Government hospitals as a Orang Kurang Upaya.

the cost of home visits – occupational therapist 6,000-00 (200-00 per visit, once a year for 30 years) Not entitled Not required as the Plaintiff is unable to perform any physical activities S/N 9yt8xZ7frkuujRfJbUMxiQ

the cost of dietitian 12,000-00 (200-00 per visit, 2 times per year for 30 years) Not entitled Not necessary. It is in evidence that the Plaintiff’s diet is milk (Pediasure), for which this Court decided to award a sum of nearly RM300,000, based on RM1,760.00 a month for the next 14 years, to be paid upfront to the Plaintiff.

the cost of hospital admission 10,000-00 Not entitled Not entitled. Plaintiff is entitled to free treatment in government hospitals as has been the case all these years.

the cost of spine orthopaedic surgeon for scoliosis surveillance 15,000-00 (250-00 per visit, 2 times per year for 30 years) Not entitled Not entitled. Plaintiff entitled to free treatment in government hospitals as has been the case all these years.

the cost of surgical needs: Tendon releases or osteotomy for limb contracture - Spine stabilization for scoliosis 20,000-00 100,000-00 Not entitled RM20,000.00. RM20,000.00 may be payable for such implant in a Government Hospital. Even though such implant may not be necessary, this Court is giving the Plaintiff the benefit of doubt by awarding it. S/N 9yt8xZ7frkuujRfJbUMxiQ E. Future General Damages (Medicines)

Botolinum toxin (botox) 270,000-00 (1,500-00 per vial, 3 vials per injection, 2 times per year for 30 years) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

Oral Paracetamol (1g PRN) 6,552-00 (4-20 per week for 30 years) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

Vitamin C (500 mg) 16,380-00 (546-00 per year for 30 years) Not entitled RM2,555.00 0.50 per day 182.50 per year x 14 = 2,555.00 Vitamin C (500mg per day) does not need to cost RN.050 per day. Be that as it may, this Court decided to give the Plaintiff the benefit of the doubt and awarded it.

Vitamin D3 (1000 iu) 21,600-00 (720-00 per year for 30 years) Not entitled Award for Calcium is allowed. Common for Calcium supplements to include Vitamin D3 S/N 9yt8xZ7frkuujRfJbUMxiQ

Calcium 45,000-00 (1,500-00 per year for 30 years) Not entitled RM2,555.00 Calcium + Vit D3 0.50 per day 182.50 per year x 14 = 2,555.00

Pneumococcal (single dose) 120-00 Not entitled It is provided free of charge in Government hospitals for the Plaintiff who is a OKU.

Influenza A 1062-00 (35-40 per vial, once every year for 30 years) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

Syrup Epilim (300mg) 720,000-00 (2,000.00 per month for 30 years) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

Syrup Chloral hydrate (300mg) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a S/N 9yt8xZ7frkuujRfJbUMxiQ

T. Nitrazepam (2.5mg) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

T. Benzhexol (4mg) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

Scopolamine patch 1 patch every 48 hrs Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

T. Baclofen (10mg) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

Syrup lactulose (10mls) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

Ravin enema Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

O.Omeprazole (20mg) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a

Domperidone (10mg) 720,000-00 (2,000-00 per month for 30 years) Not entitled If this is necessary, it is provided free of charge in Government hospitals for the Plaintiff who is a S/N 9yt8xZ7frkuujRfJbUMxiQ F. Future General Damages (Care and Assistance)

the cost of respite care 144,000-00 (4,800-00 per month for 30 years) (5,000-00 once every 2 years) RM67,200.00 Once a year for 14 years 4,800 x 14 = 67,200.00

the cost of hiring one nurse calculated at the rate of RM25 per hour for 8 hours per day 2,184,000-00 (1,400-00 per week x 52 weeks for 30 years) Not entitled Alternatively, the cost of hiring one maid (2000-00 per month) RM 537,600.00 RM 20/hour x 8 hours x 5 days = RM 3,200 per month x 14years = 537,600.00 50. the cost of hiring a maid 900,000-00 (2,500-00 per month for 30 years) Not entitled RM168,000.00 (2,000 x 12 x 14years = 336,000.00) 50% is allowed because the maid will serve the whole family of 4 persons, not just the Plaintiff. 336,000.00 x ½ = RM168,000.00 S/N 9yt8xZ7frkuujRfJbUMxiQ

Add: the cost of maid agency fees and other expenses i.e, immigration charges and levies, medical examination fees, processing fees, including stamping fee, airport clearance fee, etc 300,000-00 (20,000-00 per year for 15 years) Not entitled Not entitled and unjustified because the maid will serve the whole family. The Plaintiff’s claim is for RM20,000.00 per year. Every household in Malaysia who wishes to hire a maid would have to pay maid agency fees. It is not an expense specially for the Plaintiff.

the accommodation and living expenses and utilities for carers 270,000-00 (750-00 per month for 30 years) - Not entitled. Every household in Malaysia who wishes to hire a maid would have to provide the maid with accommodation within the house.

the accommodation and living expenses for the Plaintiff after attaining the age of majority of 18 years 780,000-00 (2,500-00 per month for 26 years) Not entitled Not entitled. Plaintiff will continue staying with his parents. It is common in Malaysia for children who are single to continue living with their parents

the cost of counseling for parents 7,500-00 (250-00 per session per year for 30 years) Not entitled No evidence of any counselling being required over the past 15 years for the parents who had gone on to have a second child after the Plaintiff was born. S/N 9yt8xZ7frkuujRfJbUMxiQ G. Future General Damages (Equipment)

the cost of purchasing Hi-Lo Double Fowler hospital bed 16,500-00 (5,500-00 x 3 purchases) 4000-00 once every 5 years RM16,500.00 (Allowed as claimed)

the cost of purchasing table for placement of medications 1,800-00 (300-00 x 6 replacements) Not entitled RM900.00 (300 x 3)

the cost of purchasing positioning wedges 3,000-00 (300-00 x 10 replacements) 300-00 once every 3 years RM1,500.00 5 replacements should be more than sufficient over the next 14 years (300 x 5 replacements)

the cost of purchasing orthotic device 3,000-00 (200-00 x 15 replacements) Alternatively, 35,000-00 (3,500-00 x 10 replacements) 200-00 once every 2 years RM1,400.00 7 replacements should be more than sufficient over the next 14 years (200 x 7)

the cost of purchasing exercise mat 6,000-00 (1,000-00 x 6 replacements) 1,000-00 once every 5 years RM3,000.00 An exercise mat does not cost as much as RM1,000. Even if it does, 3 replacements are more than sufficient over the next 14 years S/N 9yt8xZ7frkuujRfJbUMxiQ (1,000 x 3)

the cost of purchasing tilt-in-space customized seating system wheelchair 36,000-00 (6,000-00 x 6 replacements) 4,000-00 once every 5 years RM12,000.00 (4,000 x 3) A wheel chair (even a tilt-in-space one) does not cost as much as RM4,000. Even if it does, 3 replacements should be more than sufficient over the next 14 years

the cost of purchasing portable ramps 4,500-00 (1,500-00 x 3 replacements) 1,000-00 once every 5 years RM3,000.00 Portable ramp does not cost as much as RM1,000. Even if it does, 3 replacements should be more than sufficient over the next 14 years (1,000 x 3 = RM3,000)

the cost of purchasing powered tilt table 36,000-00 (12,000-00 x 3 replacements) Not entitled RM24,000.00 A powered tilt table is actually not necessary as the Plaintiff does not sit up to eat. Further, it does not cost as much as RM12,000. Even if it does, 2 replacements should be more than sufficient over the next 14 years (12,000 x 2 = RM24,000)

the cost of purchasing electric hoist 78,000-00 (13,000-00 x 6 replacements) 10,000-00 once every 10 years RM20,000.00 A simple electric hoist does not cost RM13,000. The Defendant’s figure of RM10,000 is more reasonable. 2 replacements should be more than sufficient over the next 14 years (10,000 x 2 = 20,000) S/N 9yt8xZ7frkuujRfJbUMxiQ

the cost of purchasing reclining shower chair 18,000-00 (1,800-00 x 10 replacements) 18,000-00 (1,800-00 x 10 replacements) RM9,000.00 Assuming that a shower chair costs RM1,800.00, 5 replacements should be more than sufficient over the next 14 years (1,800 x 5)

the cost of purchasing alternating pressure mattress 6,000-00 (600-00 x 10 replacements) 6,000-00 (600-00 x 10 replacements) RM3,000.00 Assuming that such a mattress costs RM600.00, 5 replacements should be more than sufficient over the next 14 years (600 x 5)

the cost of purchasing consumables for personal hygiene care (gloves, emollients, electric toothbrush, clean sheets, hypafix, diapers) 540,000-00 (1,500-00 per month for 30 years) 400-00 once every month RM134,400.00 The Plaintiff’s claim for RM1,500 per months is grossly excessive. Hypafix is just a plaster. RM800 per month would be more than sufficient. There was no evidence of the Plaintiff having spent so much per month over the past 15 years. (800 x 12 x 14years = RM134,400.00)

the cost of purchasing consumables for PEG Tube (Mic-key gastrostomy feeding 114,000-00 RM56,000.00 (1,000 x 4 x 14) S/N 9yt8xZ7frkuujRfJbUMxiQ tube) with extensions and dressing sets (3,800-00 per year for 30 years) 1,000-00 once every 6 months 68. the cost of purchasing milk (pediasure) 633,600-00 (1,760-00 per month for 30 years) 4 cans per month (RM 90 x 4) = 360 once every month RM295,680.00 (1760 x 12 x 14)

the cost of purchasing suction machine 30,000-00 (1,000-00 per year for 30 years) 500-00 once every year RM7,000.00 Such a suction machine is just a simple pump with rubber hose. Figure of RM500 suggested by the Defendant is more reasonable. If to change every year for 14 years = 500 x 14= RM7,000

the cost of purchasing digital ear thermometer 1,600-00 (200-00 x 8 replacements) 200-00 once every 5 years Not entitled. Every family with a child will have to buy such a thermometer.

the cost of purchasing pulse oximeter 2,800-00 (350-00 x 8 replacements) 350-00 once every 5 years Not entitled. It is common for families with children or old folks to buy such an oximeter. S/N 9yt8xZ7frkuujRfJbUMxiQ

the cost of purchasing digital blood pressure machine 2,400-00 (300-00 x 8 replacements) 300-00 once every 5 years Not entitled. It is common for families to buy such a blood pressure meter H. Future General Damages (Others)

the cost of purchasing disabled-friendly MPV Modified MPV 450,000-00 (150,000-00 x 3 replacements) Wheelchair Lift and Anchoring System 90,000-00 (30,000 x 3 replacements) Not entitled Alternatively, 100,000-00 (one-time purchase) RM60,000.00 (30,000 x 2 for wheelchair lift & Anchoring System) There is no evidence of the Plaintiff’s family having incurred such expenses over the past 15 years. S/N 9yt8xZ7frkuujRfJbUMxiQ

the cost of purchasing disabled friendly home 413,344-00 Not entitled Not entitled. The Plaintiff’s parents, just as any other Malaysian couples, have to provide a home for themselves. The Plaintiff’s parents have a home for them, the Plaintiff and his younger brother.

additional cost of holidays 150,000-00 (5,000-00 per year for 30 years) Not entitled Holidays are not part of the birth rights of Malaysians. Therefore, not entitled.

the value of care provided by Fawwaz’s family members 720,000-00 (2,000-00 per month for 30 years) Not entitled Not entitled. There will be duplicity if to be allowed because an award of RM 537,600.00 nursing care has been allowed for 8 hours a day have been allowed. Over and above that, an award of RM168,000.00 is also allowed to hire a fulltime maid. Total Future General Damages 1,476,790.00 TOTAL DAMAGES AWARDED: RM2,286,490.00 S/N 9yt8xZ7frkuujRfJbUMxiQ Item Plaintiff Defendants Court

getting-up fee for the liability and quantum proceedings 350,000-00 80,000-00 100,000.00 77. out-of-pocket expenses 26,429-95 26,429.95

interest on special damages from the date of the incident, 11 February 2010 to the date of decision 5% Not entitled 5% interest on Special Damages from the date of the writ, 11 January 2023 to the date of payment 79. interest on general damages for pain and suffering and loss of amenities of life and on aggravated damages from the date of service of the writ, 11 January 2023 to the date of decision; and 8% Not entitled 5% interest on General Damages for pain and suffering and loss of amenities of life from the date of the of the incident, 11 February 2010 to the date of payment S/N 9yt8xZ7frkuujRfJbUMxiQ

interest on the judgment sum, including costs and pre-judgment interest, from the date of judgment to the date of payment. 5% Not entitled 5% interest on Pre-trial Damages & Future General Damages from the date of judgment 6th May 2025 to the date of payment S/N 9yt8xZ7frkuujRfJbUMxiQ Counsel for the Plaintiff: Karhti Kanthabalan (Abigail Sarah Kumar with him) SOLICITORS FOR THE PLAINTIFF: MESSRS P S RANJAN & CO. Advocates & Solicitors Tingkat 17, Wisma Lee Rubber, No. 1, Jalan Melaka 50100 KUALA LUMPUR. Counsel for the Defendants: Masriwani binti Mahmud (SFC) SOLICITORS FOR THE DEFENDANTS: PEGUAM KANAN PERSEKUTUAN Jabatan Peguam Negara, Aras 6, Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, Pusat Pentadbiran Kerajaan Persekutuan, 62100 PUTRAJAYA. S/N 9yt8xZ7frkuujRfJbUMxiQ

Inas Faiqah v Kerajaan Malaysia [2015] 3 MLJ 498.

Dr Jerilee Mariam Khong & Ors v. Yusnita Johari 2025] CLJU

1819.

Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur [2018] 1 MLJ 784.

https://pubmed.ncbi.nlm.nih.gov/25041081/ “Recent trends in cerebral palsy survival. Part II: individual survival prognosis” by Jordan C Brooks et al. S/N 9yt8xZ7frkuujRfJbUMxiQ