Kerajaan Malaysia & Anor v NRAR [2024] 5 MLRA 703

Court of Appeal

Tort – Negligence – Medical Negligence – Quantum of Damages

1.    The Respondent filed a medical negligence claim against the Appellants for injuries sustained during childbirth at Taiping Hospital on 3 May 2017.  She suffered a third-degree perineal tear, resulting in an obstetric anal sphincter injury.  Surgery to repair the tear was performed the next day and she was discharged on 5 May 2017.

2.    On 16 May 2017, she returned to the hospital due to wound complications.  A perineal examination revealed that the sutures had completely opened. A consultant surgeon performed a defunctioning stoma, and the Respondent was advised to delay further sphincter repair and manage her condition conservatively with stoma bags.

3.    Seeking further opinions, she underwent a graciloplasty/sacral neuromodulation procedure (SN procedure) at Pusat Perubatan Universiti Malaya (PPUM) due to the failure of the initial repair caused by severe sphincter and nerve injuries. Unfortunately, her condition did not improve.  She alleged her injuries and complications were due to the Appellants’ negligence in managing her conditions.

4.    The Appellants admitted liability, leading to a consent judgment with damages assessed by the Judicial Commissioner (JC).  The awards included-

(a)   RM1,000,000.00 for general damages (pain, suffering, and loss of amenities);

(b)   RM100,000.00 for future medical treatment (including the SN procedure and pacemaker testing);

(c)   RM300,000.00 for aggravated damages (emotional distress);

(d)   RM7,500.00 for counsel appearance costs at the High Court; and

(e)   RM50,000.00 for advocacy costs.

5.    The Appellants appealed against the decision, while the Respondent cross-appealed for additional awards, including-

(a)   RM6,000.00 for the stoma reversal surgery (linked to the SN procedure);

(b)   RM3,600.00 for the cost of stoma bags until the pacemaker implant; and

(c)   RM4,000.00 for special damages related to travel expenses for hospital visits.

Whether the awards given by the High Court requires appellate intervention.

1.    General Damages

(a)         In this case, the Respondent was awarded RM1,000,000.00 as general damages for pain, suffering and loss of amenities.  The Counsel representing the Appellants argued that the award was excessively high and constituted a wholly erroneous estimation of the damages suffered by the Respondent.  Meanwhile, the Respondent’s Counsel maintained that the award was fair and reasonable, considering the overall facts and circumstances of the case.

(b)         In the case of Sam Wun Hoong v Kader Ibramshah [1980] 1 MLRA 712, the Federal Court held that-

“General damage comprises damage for pain and suffering, loss of amenities and the like which the law implies, and in certain cases, where the injuries suffered are such as to lead to continuing or permanent disability, it includes future loss of earnings and loss of earning capacity. Under the heading of pain and suffering and loss of amenities, the quantum is mainly assessed on the nature of injuries sustained and the period of hospitalization, and in arriving at a figure, the court is guided by previous awards in cases involving similar type of injuries with allowances being given as to the plaintiff’s

age, marital status, his special position socially or in business, depreciation or appreciation of money value and other relevant circumstances.”

(c)         In the present case, it was held that the Court of Appeal had agreed with the factors considered by the learned JC in awarding the general damages.  However, the amount awarded was extremely high.

(d)         This is due to the fact that the injuries suffered by the Respondent are substantially similar to those suffered by the Plaintiff in the case of Nur Syarafina Sa’ari v Kerajaan Malaysia & Ors [2018] MLRHU 1949 in which the general damages awarded by the learned JC was a global sum of RM80,000.00.

(e)         It was later held that a fair and reasonable amount of general damages for pain, suffering and loss of amenities to life suffered by the Respondent was RM300,000.00  as the previous award is excessively high, making it appear less like compensation for the Respondent’s injuries and more like a reward to the Respondent and a punishment for the Appellants.

2.    Costs for Counsel’s Appearance

(a)          Previously, a sum of RM7,500.00 was awarded as costs for the Respondent’s counsel appearance at the High Court.

(b)          However, the Appellant’s counsel argued that such amount was too excessive considering that the Respondent’s counsel had attended the court proceeding physically for only three (3) days.

(c)          The Court of Appeal held that such award to be reduced to RM3,000.00.

The Respondent’s Cross-Appeal

1.    Cost for future damages – Costs for the reversal of the stoma operation and costs for stoma bags pending the implant of the pacemaker

(a)          The Respondent was dissatisfied with the RM6,000.00 award allowed by the learned JC and contended that as part of the SN procedure and pacemaker usage, the Respondent needed surgery to reverse the stoma and such operation would require RM12,000.00 to RM15,000.00.

(b)          The reason the learned JC awarded only RM6,000.00 was due to the fact that such procedure could be performed at government hospitals.  This award was affirmed by the Court of Appeal.

(c)          Regarding the costs for future treatment, the learned JC awarded RM3,600.00 for the expenses of stoma bags which calculated at RM300.00 per month for 12 months.  The Respondent’s counsel argued that this amount was insufficient, as the Respondent had been using stoma bags since 18 May 2017.

(d)          However, the Court of Appeal held that the Respondent’s counsel’s submission is misguided because such cost was specifically intended to cover expenses pending the implantation of the pacemaker, which had not yet occurred.  Further, the Respondent never pleaded a claim for the costs of using stoma bags since 18 May 2017, thus she cannot raise this claim at this stage.

2.    Special damages

(a)          The learned JC awarded RM4,000.00 as special damages to cover the Respondent’s travel expenses to various hospitals.

(b)          However, the Respondent claim a total of RM 8,852.84 as her travel expenses from her home to the respective hospitals to seek treatment.

(c)          Since the Respondent failed to prove this claim, the Court of Appeal affirmed the award of RM 4,000.00 as one of the special damages.

1.    At the outset, it is a well-established law that the awarding of damages is based on assessment rather than calculation.  It is also a settled principle that an appellate court should be cautious in altering the damages awarded by a trial court unless it can be proven that the trial court has applied an incorrect legal principle, misunderstood the facts, or awarded an amount so excessively high or low that it constitutes a wholly erroneous estimation of the damages.

2.    This present case demonstrates the approach to assessing damages in medical negligence claims which includes-

(a)         General damages – For pain, suffering, and loss of amenities;

(b)         Special damages – For specific financial losses, such as medical expenses and travel costs;

(c)         Aggravated damages – For emotional distress and severe impact on the plaintiff’s quality of life.