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2020 MarsdenLR 386
HIGH COURT MALAYA JOHOR BAHRU
MUHAMMAD ZULKARNAIN MOHAMED ROKANI & ORS – Appellant
Versus
PENGARAH HOSPITAL SULTAN ISMAIL JOHOR BAHRU & ORS – Respondent
[Civil Suit No: JA-21NCVC-13-04/2019]
Court determined that defendants' negligence caused the amputations, and the assessment for damages reflects the injuries' severity, irrespective of the plaintiff's illegal act.
Headnote:(A) Road Transport Act 1987 – Section 26 – Evidence Act 1950 – Section 45 – Medical negligence – Assessment of damages for amputations due to the defendant's negligence despite the plaintiff's illegal act of riding without a license – Liability conceded, irrelevant in damage assessment. (Paras 9-12, 15-20)
(B) Aggravated damages – Standard of proof for aggravated damages in cases of contumelious conduct must be substantiated. (Paras 22-26)
(C) Cost of prosthesis – Court must award reasonable and just compensation, considering expert evaluations and financial implications. (Paras 28-60)
Facts of the case: Medical negligence claim by parents of a minor following leg amputations due to complications after a motorcycle accident where the minor was at fault. Trial focused on damages against the government hospital. (Paras 1-6)
Findings of Court: Award of MYR190,000 for pain and suffering; MYR600,000 for prosthesis; MYR150,000 for aggravated damages; and MYR70,000 for legal costs. (Paras 20, 28, 32, 64)
Issues: Whether the plaintiff's illegal act should affect the damage award. The relevance of the plaintiff's age and the hospital's conduct in assessing damages. (Paras 9-14, 22-26)
Ratio Decidendi: Court ruled that the defendant’s negligence, not the plaintiff's illegal act, was the cause of injuries; thus, damages should reflect the severity of the injuries. Compensation must represent the gravity of losses while maintaining equity between the parties. (Paras 12, 22, 48)
Result: Awards granted significantly to the plaintiffs.
JUDGMENT
This Claim
[1] The Second and Third Plaintiffs are parents of the First Plaintiff. The First and 12th Defendants are the director-generals respectively of two public hospitals and, except for the 19th Defendant who is the Government of Malaysia, the remaining Defendants are employed at the two public hospitals.
[2] The Plaintiffs' claim against the Defendants was based on medical negligence when the First Plaintiff had sought treatment for his right leg. The Defendants had, during the trial conceded liability, and as a result thereof, the claim was withdrawn against the First to 18th Defendants. The trial, however, proceeded on the assessment of damages only against the 19th Defendant (referred to as "the Defendant" in this case).
The Brief Facts
[3] On 23 July 2018, the First Plaintiff, who was aged 12 years 5 months at the material time, fell whilst riding (without a valid licence) a motorcycle. He admitted that the accident was due to his own fault.
[4] After the accident, he was sent to the Kota Tinggi Hospital and was diagnosed for 'closed fracture distal end right femur'. On 24 July 2018, he was referred to Hospital Sultan Ismail Johor Bahru, the first public hospital, and on the evening of that day, he underwent closed manual reduction followed by an open reduction with k-wiring for distal femur fracture.
[5] Complications subsequently developed, and on 29 July 2018, at Hospital Sultanah Aminah Johor Bahru, the second public hospital, the First Plaintiff underwent an emergency fasciotomy on his right leg. Two amputations were then performed - the first was 'below knee amputation' on 30 July 2018, and the second was 'above knee amputation' on 12 August 2018. On 19 August 2018, the First Plaintiff was discharged.
[6] The following were called as the Plaintiffs' witnesses:
a) Zaharah binti Johari, the First Plaintiff's mother (SP1)
b) Mohamed Rokani bin Mokmin, the First Plaintiff's father (SP2)
c) Md Zaid bin Basiran, the First Plaintiff's brother (SP3)
d) Mohamed Zulkarnain bin Mohamed Rokani, the First Plaintiff himself (SP4)
e) Choong Yuen Hui, a clinical prosthetist and orthotist (SP5)
f) Ryaliratna Manjari, a psychologist (SP6)
[7] The Defendant's sole witness was Dr Tan Jin Hui, a rehabilitation physician (SD1).
[8] The Plaintiffs' claim for assessment of damages was allowed in some aspects only, based on the following reasons.
Contentions, Evaluation, And Findings
Whether The First Plaintiff's Conduct In Riding Without A Licence Was Relevant
[9] The Defendant argued that the fact that the First Plaintiff was riding the motorcycle without a licence should be considered by this Court in assessing damages, on the ground that the First Plaintiff had committed an illegal act, pursuant to s 26 of the Road Transport Act 1987 ("the Road Transport Act"), which reads:
Section 26 - Driving licences
(1) Except as otherwise provided in this Act, no person shall drive a motor vehicle of any class or description, on a road unless he is the holder of a driving licence authorising him to drive a motor vehicle of that class or description, and no person shall employ or permit another person to drive a motor vehicle on the road unless the person so employed or permitted to drive is the holder of such a driving licence.
(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall on conviction be liable to a fine of not less than three hundred ringgit and not more than two thousand ringgit or to imprisonment for a term not exceeding three months or to both such fine and imprisonment.
...
[10] The Defendant submitted that since it was undisputed that the First Plaintiff had contravened s 26 of the Road Transport Act, he had, therefore, contributed to the negligence, and as such, had not come to Court with clean hands. The Defendant further contended that as a result thereof, only minimal damages should be awarded.
[11] I was unable to agree with the Defendant's contention in view of the fact that liabi
