I. INTRODUCTION

[1] The complexity of this civil action is unfolded by lay and medical witnesses who testified in these protracted proceedings. The evaluation of their evidence is no doubt time consuming. The consideration and analysis of medical evidence and literature is equally formidable.

II. PLAINTIFFS' CLAIM

[2] The plaintiffs' action against the first and second defendants is based on medical negligence. The first plaintiff ("the baby") sues by his father who is the second plaintiff (SP1) ("the father"). The baby's mother is the third plaintiff ("the mother").

[3] The crux of the plaintiffs' statement of claim is that the the baby was not a healthy normal baby at birth, but with defects, caused by the negligence of the defendants, as a result of which the baby had suffered severe brain damage which three doctors later diagnosed as "Hypoxic Ischaemic Encephalopathy (H.I.E.) with developmental delay". The three doctors are :

(1) SP2 (Dr. Soh Chau Peng) a paediatrician in the Melaka Hospital at the material time, and subsequently in private practice attached to the Kluang Utama Specialist Centre;

(2) SPG (Dr. Kuan Geok Lan) a consultant paediatrician attached to the Melaka Hospital; and

(3) SP5 (Dr. Mohd Khairi b Mat Aris) a consultant paediatrician based in the Johor Specialist Hospital.

III. BURDEN OF PROOF

[4] The burden is on the plaintiffs to prove that the defendants had acted in breach of their duty of care, thereby causing damage to the baby in particular and the other plaintiffs in general; and that the damage was reasonably foreseeable.

[5] I shall now consider the issue pertaining to the defendants' failure to call witnesses, as this issue is closely connected with the burden of proof.

IV. FAILURE TO CALL WITNESSES

[6] Plaintiffs' learned counsel Mr. Sri Murugan raised the issue of the defendants' duty to call two material witnesses viz. Dr. V Manon Mani of Jabatan Rawatan Perubatan Utama Hospital University and Dato Dr. K Nagaratnam of Asia Clinic. The plaintiffs argued that Dr. Mahendran has referred the baby to Dr. V. Manon Mani, while Dato Dr. K Nagaratnam could verify as to whether Dr. Mahendran is indeed a partner in Asia Clinic, because Dr. Mahendran is a bankrupt. He urged the Court to draw adverse inference against the defendants under s. 114(g) of the Evidence Act 1950.

[7] The response of the defendants' learned counsel Mr. PS Ranjan (assisted by Mr. MS Dhillon) is that s. 114(g) is inapplicable as the burden is on the plaintiff to prove their case against the defendants.

[8] In my judgment s. 114(g), where relevant, merits reproduction as follows :

"114. Court may presume existence of certain fact

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

ILLUSTRATIONS

(g): that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;"

[9] Lest it be misunderstood, I find it necessary to reaffirm the law contained in s. 114(g). I shall enumerate the relevant principles as follows :

(1) The single most important word therein is "withholds";

(2) The adverse inference thereunder is not mandatory but discretionary, having regard to the relevancy and materiality of a particular witness : see Lau Song Seng & Ors v. Public Prosecutor [1998] 1 SLR 663 Singapore CA; and

(3) Withholding or suppression of material evidence is a sine qua non; a mere failure or non- production per se is insufficient: see eg, Munusamy v. PUBLIC PROSECUTOR [1987] 1 MLJ 492, 494 SC per Mohamed Azmi SCJ (as he then was); and Pekan Nenas Industries Sdn Bhd v. Chang Ching Chuen [1998] 1 MLJ 465 FC per Edgar Joseph Jr FCJ (as he then was);

[10] In the absence of defendants' withholding or suppression of evidence, no adverse presumption may be drawn against the defendants under s. 114(g).

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