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HIGH COURT MALAYA KUALA LUMPUR
JAYSHREE LC DOSHI – Appellant
Versus
AHMAD FAIZAL MOHAMAD ALI & ORS – Respondent
[Civil Suit No: WA-21NCvC-126-12/2020]
The provided court judgment does not explicitly include the phrase "mere oversight or employment does not automatically impose personal liability." However, the court's reasoning indicates that the employer (the 3rd Defendant) was held vicariously liable for the negligence of the employee (the 1st Defendant), based on the fact that the 1st Defendant was acting within the scope of his employment when performing the RFA procedure (!) (!) .
The court clarified that since the procedure was deemed acceptable and the 1st Defendant was an employee of the employer, the employer’s liability was vicarious, and the employee's conduct did not constitute acting on a "frolic of his own." This suggests that the court did not view employment status alone as imposing personal liability on the employee, especially if the act was within the scope of employment and accepted practice.
Therefore, the concept that "mere oversight or employment does not automatically impose personal liability" aligns with the court's reasoning, which emphasizes that liability depends on whether the employee was acting within the scope of their employment and whether the conduct was acceptable within the responsibilities assigned, rather than simply on employment status alone.
JUDGMENT
Introduction
[1] This is a medical negligence suit brought by the Plaintiff for herself and as the executrix of the estate of her deceased husband ("the deceased") against Ahmad Faizal bin Mohammad Ali ("1st Defendant"), Normala Bt Haji Basiron ("2nd Defendant") and the Government of Malaysia ("the 3rd Defendant").
[2] The case proceeded to a full trial for both liability and quantum. Both parties had filed the bundle of pleadings, agreed facts, issues to be tried and Bundle of Documents on the directives of Court . All these formed part of the proceedings.
[3] Besides the documents both parties called witnesses to adduce oral evidence. The Plaintiff called 4 witnesses ie the Plaintiff herself (SP1), Dr Oomen George a/l TO George (SP2), Dato' Lim Chee Wee (SP3) and Dr Steven Bandula (SP4).
[4] The Defendants called 5 witnesses ie the 1st Defendant (SD1), the 2nd Defendant (SD2), Dr Fong Chin Heng (SD3), Dr Chooi Lai Kuan (SD4) and Dr Hasliza binti Md Shahir (SD5).
Agreed Facts
[5] Amongst the agreed facts are that at the material time the 1st Defendant was an interventional radiologist at the Institut Kanser Negara ("IKN"), Putrajaya and the 2nd Defendant was a plastic surgeon at the Kuala Lumpur General Hospital ("HKL"). Both were the employees of the 3rd Defendant.
[6] The deceased suffered thymic neuroendocrine tumor (the tumor") wherein he had undergone surgery in 1998 and 2004. On 21 September 2017 the deceased was referred to IKN for the recurrence of the tumor. It was discovered that the tumor had spread and enlarged to the chest area of the deceased.
[7] On 9 October 2017 the discovery of the enlarged tumor of the deceased was discussed at the multidisciplinary meeting (TBMM) at IKN attended by various doctors of different discipline including the 1st Defendant. It was decided at the meeting the tumor near the chest referred to as primary mediastinal lesion be treated by localized ablation therapy by way of cyroablation to shrink the size of the tumor.
[8] For the purpose of the ablation of the tumor the deceased was treated by the 1st Defendant. Between 29 November 2017 and 5 December 2017 after discussion with the Plaintiff and the deceased it was decided by the 1st Defendant that the RFA procedure will be adopted to debulk the tumor at the left chest area. The deceased underwent the RFA procedure on 21 December 2017.
Issues To Be Tried
[9] Against the 1st Defendant the agreed issues to be tried was whether the 1st Defendant qualified to carry out the RFA procedure, whether the RFA was a suitable procedure to ablate the tumor, whether the risk of carrying out the RFA procedure properly explained to the Plaintiff and the deceased and whether the 1st Defendant had caused trespass to person and battery against the deceased.
[10] Against both the 1st and 2nd Defendant the additional issue was whether they had acted in the manner of the standard of care required from them, whether both the Defendants had acted in the best interest of the deceased.
[11] Against all the Defendants the further issue was whether there was a breach of statutory or fiduciary duty in treating the deceased. Additional issue against the 3rd Defendant was the issue of vicarious liability in the event negligence is proven against the 1st and 2nd Defendants.
[12] The final issue was whether the Plaintiffs entitled to the relief asked for.
Burden And Standard Of Proof
[13] The burden of proof is upon the Plaintiff to prove negligence against the 1st and 2nd Defendant. This is clear from the provisions of the Evidence Act 1950. The relevant provisions are reproduced here for ease of reference:
Section 101
(1) Whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a) A desires a Court to give judgment t
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