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2021 MarsdenLR 400
COURT OF APPEAL PUTRAJAYA
NUR FARZANA AIDA FAIZAL & ORS – Appellant
Versus
KERAJAAN MALAYSIA – Respondent
[Civil Appeal No: P-01(NCVC)(W)-153-03/2020]
Damages awarded for negligence must reflect reasonable expectations based on cogent evidence and not be influenced by sympathy, with adjustments made in light of expert testimony on life expectancy.
Headnote:(A) Civil Law Act 1956 – Assessment of Damages – Claim for special and general damages due to medical negligence – The High Court awarded a total of RM1,253,208.00, with 5% interest from the date of judgment – Plaintiffs contended the calculations for life expectancy and special damages were undervalued – Court ruled that damages serve as compensation rather than punishment – Further, it held that the life expectancy multiplier should reasonably reflect the median expert predictions, resulting in an adjustment from 23 to 25 years (Paras 6, 19, 56).
Facts of the case: The Plaintiff, diagnosed with spastic quadriplegic cerebral palsy, sought compensation for medical negligence resulting in significant life impairment and ongoing care costs (Para 4).
Findings of Court: The appeal was allowed in part, specifically modifying the multiplier for future loss (Paras 56).
Issues: Main issues included the calculation of life expectancy and appropriateness of damages awarded (Para 15).
Ratio Decidendi: The court emphasized that damages must be reasonably based on cogent evidence without being influenced by sympathy (Paras 19).
Result: Appeal partially allowed with adjustments to the calculation methods and interest rates.
Introduction
[1] This is the Appellants' appeal against the decision of the High Court after a full trial on quantum and cost whereby the High Court had made the following order to the Appellants:
"(a) Prayer (i) gantirugi am diluluskan sebanyak RM1,253,208.00;
(b) Prayer (ii) diluluskan atas kadar 5% setahun mulai dari hari ini (14 Februari 2020) sehingga penyelesaian penuh;
(c) Prayer (iii) gantirugi khas diluluskan sebanyak RM16,243.00;
(d) Prayer (iv) diluluskan atas kadar 4% setahun mulai dari hari ini (14 Februari 2020) sehingga penyelesaian penuh;
(e) Prayer (v), (vi), (vii) tidak diluluskan; dan
(f) Kos tindakan ini diluluskan sebanyak RM80,000.00"
[2] For ease of reference, parties will be referred to as they were in the proceedings before the High Court namely the Appellants as Plaintiffs and the Respondents as Defendants.
[3] Having considered the appeal records and the submissions of the parties, it is our unanimous decision that the appeal is allowed in part with cost subject to allocator. We now give our reasons for the same.
Background Facts
[4] The Plaintiffs' claim against the Defendants jointly and severally for medical negligence. First Plaintiff ("Farzana") was born at the Seberang Jaya Hospital, Penang on 5 May 2015 and was diagnosed with spastic quadriplegic cerebral palsy with physical impairments of Grass Motor Function Classification System (GMFCS) Level 15 with profound global developmental as a result of the negligence of the Defendants.
[5] A Consent Judgment was recorded on liability on 31 May 2019 against the First Defendant. Consequently, the Plaintiffs have withdrawn their claim against the Second to Fifteenth Defendants.
[6] The High Court proceeded with the trial on quantum of damages whereby the Plaintiffs in their Statement of Claims at para 55 claimed the followings against the Defendants:
"55. Oleh itu, Plaintif-Plaintif menuntut terhadap Defendan-Defendan dan setiap daripada mereka untuk:
(i) Gantirugi Am dan perbelanjaan keperluan-keperluan masa hadapan untuk Plaintif-Plaintif;
(ii) faedah-faedah ke atasnya yang dikira pada kadar 8% setahun daripada tarikh penyampaian proses sehingga tarikh penghakiman;
(iii) Gantirugi Khas dalam RM 136,262.91;
(iv) faedah ke atasnya yang dikira pada kadar 4% setahun dari 5 Mei 2015 sehingga tarikh penghakiman;
(v) Gantirugi Tambahan dalam RM1,000,000.00;
(vi) Gantirugi Teladan dalam RM1,000,000.00;
(vii) faedah ke atas jumlah penghakiman pada kadar statutori yang diterima pakai daripada tarikh penghakiman sehingga tarikh pembayaran; dan
(viii) relif lanjut yang dianggap sesuai."
[7] The Plaintiffs' claim are based on the following:
(a) Life Expectancy - Plaintiff's Expert submitted Farzana's life expectancy of 53 years while Defendant's Expert submitted the 38 years. Considering the 15-years difference between the two views of the experts, Plaintiffs' counsel submitted that it is certainly reasonable if the Court accept 45 years as a life expectancy ie 'median difference between the two experts'. Furthermore, in cases of cerebral palsy in Malaysia, mostly children were found to have a life expectancy within that age.
(b) General Damages - Courts in many decided cases has taken into account the degree of injury and diagnosis the condition of the patient as well as the burden on the family in taking care of them. Defendant's Expert had admitted that at the time of Farzana's birth, she has suffered such injuries and he also admitted Farzana's current condition is very bad. Therefore, the Plaintiffs submitted that Farzana will suffer and experience great state of 'pain and suffering and loss of amenity'. That is the reason why the Plaintiffs claim for the general damages at the amount of RM400,000.00.
(c) Special damages - The Plaintiffs had submitted in detail the amount that had to be spent to this day for Farzana's care since born until now as in Annexure P1A which was marked together with the 3rd Plaintiff's Witness Statement.
(d) Future
