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2021 MarsdenLR 2514
COURT OF APPEAL PUTRAJAYA
PANTAI MEDICAL CENTRE SDN BHD – Appellant
Versus
FAREED REEZAL ARUND & ANOTHER APPEAL – Respondent
[Civil Appeal Nos: W-02(NCVC)(W)-566-04-2020 & W-02(NCVC)(W)-572-04-2020]
The Court emphasized that life expectancy estimates must be based on relevant medical literature, confirming a 16-year multiplier for damages without discounting for contingencies.
Headnote:(A) Civil Law Act 1956 – Section 28A(2)(d)(ii) – Medical negligence – Appeal regarding quantum of damages based on life expectancy and loss of earnings – Life expectancy assessed at 16 years for a plaintiff in Persistent Vegetative State (PVS) – Importance of relevant medical literature (Graf and Zasler) in estimating life expectancy – No deduction for contingencies as factors had already been considered – Damages assessed on once-and-for-all basis. (Paras 25, 55)
(B) Multiplier for loss of earnings – Court rejected argument for pre-trial and post-trial distinctions for loss of future earnings, applying the statutory formula instead. (Paras 53, 54)
(C) Calculation of damages awarded for loss of earnings and future medical expenses confirmed with adjustments for appropriate durations rather than document evidence alone. (Paras 69, 93)
Introduction
[1] There are two appeals before us heard together, both on the issue of quantum. They arise from the same medical negligence action. In Appeal 566 the appellant is Pantai Medical Centre (D1). In Appeal 572 the appellant is Fareed Reezal bin Arund suing by his wife and litigation representative (Plaintiff).
[2] The plaintiff was 44 years old when he suffered serious brain injury in D1's hospital on 19 May 2015. This resulted in him being in a Persistent Vegetative State (PVS). He was born on 2 December 1970 and turns 55 on 2 December 2025. The judgment of the High Court was delivered on 6 March 2020.
Life Expectancy
[3] We deal first with the issue of life expectancy as that will set the multiplier for various heads of damages.
[4] It is not disputed that PVS is a condition described as "a clinical condition whereby the patient is not aroused and not aware of the surrounding and the cause of it is a brain injury". It is also not disputed that the PVS resulted from a non-traumatic injury as opposed to traumatic.
[5] Both the parties' quantum experts differed on the life expectancy of the plaintiff. The plaintiff's expert Dr Fazah Akhtar Hanapiah (SP1) gave it as 9 to 20 years. D1's expert (Dr Lydia Abdul Latif, SD8) gave it as 5 to 7 years and revised to 9 to 12 years.
[6] SP1 had relied on two medical literature for deriving a life expectancy of 9 to 20 years. The first was Zasler et al 2007 (Zasler) where a person with PVS in the age group of 40 years may live for another nine years (encl 9/117). The second literature relied on was a study by Jurgen Graf et al 2008 (Graf) which looked at the long term survival of patients following intensive care unit admission after cardiac arrest and estimated to live for another 20 years (encl 9/117).
[7] The expert report of SD8 stated that the life expectancy of PVS based on literature is 5 to 7 years from the event and less than 20% chance to live beyond 10 years. Her personal clinical experience of managing patients with disordered consciousness is between the range of 5 to 12 years. Refer to encl 9/194. She concluded by stating "life expectancy 5 to 7 years (50%)" (encl 9/195).
[8] The learned High Court Judge (HCJ) gave life expectancy to be 10 years and stated as follows:
"I am taking a more conservative view derived from Prof Fazah's view of 16 years. (16-4)-15%:10.2 (rounded up to 10)."
The reference to Prof Fazah was to SP1 who gave a life expectancy of 9 to 20 years where the 20 years was derived from Graf. The HCJ took 16 years to be SP1's view and deducted four years. This was attributed to a more conservative view.
[9] Putting that reasoning aside for the moment, we considered the submission by DTs counsel that the reliance on Graf was flawed as that study was based on patients without severe neurological disabilities.
[10] Graf stated:
"... We believe our study is the first to demonstrate that patients who leave the hospital following cardiac arrest without severe neurological disabilities may expect fair long term survival and quality of life for reasonable expenses to the health care system."
(encl 12/76).
On the face of it, this was therefore a study based on patients without severe neurological disabilities unlike the plaintiff who has PVS.
[11] When it was asked of SP1 if she would agree that the study had an express exclusion it was not dealing with those with severe neurological conditions she replied as follows:
"A: The reason why they stated it specifically in their literature is because those with severe neurological conditions cannot answer their quality of life questionnaire. So they can only have the answers from patients who are cognitively alert to answer those questionnaire and that's the only reason why they excluded that out.
Q: But that's a fundamental issue within this literature itself, Doctor. Surely you agree with that.
A: Of course."
(encl 7/60).
[12] She had earlier on, when asked if that was the key distinction that the plaintiff had
