The Bolam Test applies as a measure of medical negligence, balancing professional standards with judicial oversight in determining liability.

[1] The appellants (1st and 2nd defendants) appeal against the decision of the learned High Court Judge who found them liable in respect of a claim anchored by the respondents (plaintiffs) in medical negligence. The respondents also have a cross-appeal relating to quantum only.

[2] It was submitted by learned counsel for the appellants, the standard of care and the test applicable in relation to diagnosis or treatment is still the Bolam Test and that test is dependent on the view of a responsible body of medical practitioners. The appellants relied heavily on the Court of Appeals decision of Dr Soo Fook Mun v. Foo Fio Na & Anor And Another Appeal, 2002 MarsdenLR 1600 . (See Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118). The proposition stated by the learned counsel in the first instance did not subscribe to the development of case laws in England, Malaysia, Australia, etc. (See Bolitho v. City and Hackney Health Authority [1997] 3 WLR 1151 and Foo Fio Na v. Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593 (Foo Fio Na)). The learned counsel also argues that the Federal Courts decision in the Foo Fio Nas case will not be applicable in this case and says it is related to medical advice. The learned counsel makes a distinction by saying Bolams case is related to diagnosis and treatment and the case of Rogers v. Whitaker [1992] 175 CLR 479 relates to advice or information to patient. And asserts that the fact of the instant case relates to diagnosis and treatment and in consequence the Bolam Test must be made applicable.

[3] After having heard the submission of the parties, we reserved judgment. My learned sister Badariah Sahamid JCA and learned brother Prasad Sandosham Abraham JCA have read the judgment and approved the same. This is our judgment.

Brief Facts And Submission

[4] The respondents are the administrators of the estate of Saradhamani (deceased) who was treated for colon cancer and passed away on 8 February 2005. The 1st and 2nd appellants are consultant physicians who had treated the deceased for minor ailment relating to food poisoning and gastroenteritis during a period of about 20 years from 7 January 1980 to 15 December 2000. On 15 December 2000, the deceased was investigated by the 1st appellant who discovered her colon cancer. The 2nd appellant had last attended to the deceased on 7 May 1997 and in consequence says the writ which was filed on 12 January 2006 was time-barred. However, the learned trial judge had taken the view that the action was not time-barred as the cause of action accrued upon the discovery of colon cancer and not on the last date the 2nd defendant treated her for food poisoning. The learned trial judges reason at pp 426-427 of the judgment reads as follows:

"From the medical record of this case, it is an undenied fact that the 2nd defendant had seen the deceased for three occasions, the last of which was on 7 May 1997. The plaintiffs suit was filed on 12 January 2006. Section 6 of the Limitation Act 1953 (Act 254) provides:

6. (1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:

(a) actions founded on a contract or on tort;

..."

The cause of action accrued on the fact and evidence of this case is on or about 15 December 2000 when the deceased was confirmed to have suffered from colon cancer. Calculating six years from 15 December 2000, the limitation would be on or about 15 December 20