Liability apportionment in medical negligence must consider contributory negligence, even when parents are not parties to the action.

JUDGMENT

Gunalan Muniandy JCA:

Introduction

[1] These three (3) appeals arise from a medical negligence suit brought by the infant plaintiff/Appellant ("the plaintiff") through his litigation representative (the mother) against the defendants/Respondents ("the defendants"). The plaintiff's appeal against the decision of the Learned High Court Judge ("LJ") made after a full trial is both on liability and quantum. On liability, the appeal is against liability being partly apportioned to the plaintiff's parents to the extent of 30 percent.

[2] Briefly, the LJ's decision was to allow the plaintiff's claim on these terms.

(i) The plaintiff's claim against the 1st and 2nd defendant (D1) and (D2) was allowed with costs of RM75,000.00;

(ii) The plaintiff's claim against the 3rd to 12th defendants (D3-D12) was allowed with costs of RM150,000.00;

(iii) The plaintiff's claim against the 8th defendant (D8) was dismissed with no order as to costs;

(iv) Apportionment of liability as follows:

(a) D1 and D2 - 15%

(b) D3 to D12 (except D8) - 55%

(c) the plaintiff's parents - 30%

(v) Special Damages in the sum of RM222,115.77;

(vi) General Damages (for loss of suffering and loss of comfort of life) in the sum of RM350,000.00;

(vii) Aggravated Damages in the sum of RM100,000.00;

(viii) Future Damages in the sum of RM1,267,900.00; and

(ix) All awards to the plaintiff are subject to a 30% deduction for contributory negligence.

[3] There are three appeals against the decision of the High Court ie:

(1) Appeal No 388: the appeal by D1 and D2 against the whole of the High Court's decision.

(2) Appeal No 403: the appeal by D3-D7 and D9 to D12 against the whole of the High Court's decision.

(3) Appeal No 414: the appeal by the plaintiff against part of the High Court's decision, namely, the finding of contributory negligence of the infant's parents and regarding certain items of damages which were either not awarded or were awarded in insufficient sums.

Background Facts

[4] The plaintiff was born on 18 September 2010 and brought this suit through his mother and litigation representative, Majdah Binti Mohd Yusof.

[5] D1 the Kuala Terengganu Specialist Hospital ("KTS"), a private hospital. D2 was a doctor employed by D1 and who practised in KTS.

[6] At all material times preceding this action, D4 to D12 were doctors practising and serving in Hospital Sultanah Nur Zahirah ("HSNZ"), Kuala Terengganu which was a hospital owned and managed by D3 and providing multi-disciplinary healthcare services.

[7] The plaintiff was a patient of the defendants and each of them and their respective servants and agent.

[8] The plaintiff was first seen in KTS on 30 August 2011 by D2, and was given a history of a high grade fever of 2 days duration, associated with a left neck swelling. The plaintiff was started on medications and sent home.

[9] On 1 September 2011, on a second visit to KTS, the plaintiff was again examined by D2. The plaintiff was noted to be having a fever and increased neck swelling. D2 had advised for the plaintiff to be warded at KTS and referred to the paediatrician/ENT Specialist, but the said admission was refused by the plaintiff's parents who brought him home instead.

[10] Five days later, the mother ("PW1") had brought the plaintiff to Klinik Engku Shaikh where a referral letter was issued to refer the plaintiff to HSNZ.

[11] The chronology of events is as follows:

(a) On 5 September 2011 at 11:15 pm, the plaintiff's parents had brought the plaintiff to HSNZ where the plaintiff was attended by a medical officer at HSNZ at 12:49 am.

(b) At about 1:47 am on 6 September 2011, the plaintiff was seen by the house officer, Dr Zaidatul, (D4). She prescribed medication and noted that his pulse rate was 112 beats per minute.

(c) At about 8:52 am, D4 saw the plaintiff again. The plan was for the plaintiff to undergo an examination of the neck and an X- ray examination.

(d) At about 9:11 am, the plaintiff was seen by yet another house officer Dr Zul Akmar, (D6). She had incorrectly noted th