Damages in medical negligence cases must serve as compensation, not punishment, and require strict proof of claims.

Gunalan Muniandy J:

[1] To give a brief background, the Plaintiffs are the dependants' of one Sharifah Shalihah binti Sayed Abdillah, deceased. The deceased was admitted to the Defendant's Hospital in Shah Alam on 10 April 2017 to deliver her third child. The deceased died on 12 April 2017 after delivery of her third child due to postpartum hemorrhage. Sometime after the death of the deceased on 12 April 2017, the deceased's first child, Ahmad Abbas Arbee bin Ahmad Radhiq Arbee died on 27 September 2017 due to a tragic accident.

[2] This claim is against the Defendant/Government of Malaysia for vicarious liability for the alleged negligence of the medical officers at the Shah Alam Hospital who had treated and managed the deceased prior to her demise post delivery.

[3] The 1st Plaintiff is the deceased's husband. The 2nd Plaintiff is the deceased's mother. The 3rd Plaintiff is the deceased's second child while the 4th Plaintiff is the deceased's third child.

Liability

(1) This was not in issue at the trial as the Defendant conceded on liability but only after this matter was fixed for full trial from 5th to 7 August 2019.

(2) Judgment on liability was recorded on 24 June 2019 with costs of the claim to be determined at the end of the case.

(3) Damages were ordered to be assessed and costs for the assessment of damages were also to be determined thereafter.

Quantum

[4] The dispute between the parties on the quantum to be awarded for the claim was centred mostly on the claims under General Damages (GD) and Aggravated Damages (AD). The GD claim was made under the following heads:

(1) Loss of Contribution to the Plaintiffs under ss 7 & 8, Civil Law Act 1956 (' CLA ');

(2) Loss of Services and Society as mother of deceased's children;

(3) Statutory Bereavement under s 7(3A), CLA ; and

(4) Pain and suffering before death of deceased.

[5] AD was claimed in this case on the ground that the aggravating factors in our present case led to the death of the deceased, thus, depriving the deceased's three children of their mother and depriving the 1st Plaintiff of his wife and life partner. The Defendant's hospital was alleged to have been negligent in not treating the deceased properly and with urgency as well as in not providing a proper explanation to her family when she was in a critical condition.

[6] Special Damages(SD) was claimed for the following items:

(1) Hospital expenses and medication for the sum RM837.00;

(2) Travelling expenses for members of the deceased's family in the sum of RM1,250.00;

(3) Funeral expenses in the sum of RM7,000.00;

(4) Cost of RM7,879.00 for Discovery proceedings to obtain medical records.

Principles Applicable To Assessment Of Damages

[7] Both parties referred to several important authorities on the correct approach that the Court should adopt in deciding on the entitlement to damages claimed and the right amount or quantum to be awarded.

[8] In Inas Faiqah bt Mohd Helmi v. Kerajaan Malayia & OrsCourt; [2016] 2 MLJ (ms 10-11), [2016] 2 CLJ 885 it was laid down that:

"It is trite that damages serve as a compensation, not a reward, less still a punishment. 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."

[9] In Yang Salbiah & Anor v. Jamil bin Harun, 1981 MarsdenLR 383 (Tab 2), Raja Azlan Shah, CJ (Malaya) (as he then was) remarked:

At paragraph G, p 293:

"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 before the accident. The damages must be fair, adequate and not excessive..."

[10] Similarly, in Ong Ah Long v. Dr S Underwood, [1983] 2 MLJ 324; [1983] CLJ (Rep) 300 (Tab 3), Syed Agil Barakhbah, FJ reminded at paragraph G, p 334:

"... It has to be borne in mind that damages for personal injuries are not punitive and still less a reward. They are simply compensation that will give the injured