Damages for personal injuries must be compensatory, reflecting actual suffering and loss, not punitive or excessive, with appellate courts slow to disturb trial court assessments.

JUDGMENT

Hashim Hamzah JCA:

Introduction

[1] This is our decision on the Appellants' appeal and the Respondent's cross-appeal against the learned Judicial Commissioner's ("JC") decision on the quantum of damages awarded in a medical negligence claim.

Brief Facts

[2] The learned JC had extensively set out the facts of the case in her grounds of judgment. For this appeal, the pertinent facts can be summarised as follows.

[3] On 2 May 2017, the Respondent was admitted to Taiping Hospital ("the Hospital") for suspected "leaking liquor" or leaking of amniotic fluid, which is one of the signs of labour.

[4] On 3 May 2017, at around 3.10pm., the Respondent gave birth to a healthy baby weighing 3.65 kg. However, it was later discovered that the Respondent had suffered a third-degree perineal tear, resulting in a sphincter injury. This is also commonly referred to as obstetric anal sphincter injury ("OASI").

[5] On 4 May 2017, surgery was performed to repair the tear. The Respondent was put on antibiotics for two weeks and laxative syrup to prevent wound breakdown.

[6] On 5 May 2017, the Respondent complained of loose anal stools and inability to control motion. A rectal examination revealed a lax anal tone, and therefore, the laxative syrup was stopped. The Respondent was discharged with medications on the same day.

[7] On 16 May 2017, the Respondent was referred to the Hospital by Columbia Asia Hospital due to a wound breakdown. Perineal examination revealed that the whole length of the sutures had opened up until the anal sphincter. The anal sphincter was also found to be laxed.

[8] A consultant and colorectal surgeon then reviewed the Respondent's case. A decision was made that an operation to redo the anal sphincter injury repair within two weeks from the first operation was not advisable. The Respondent was told that she might need to undergo an examination under anaesthesia to check the degree of the tear and may need a defunctioning sigmoid colostomy to be done.

[9] On 18 May 2017, the examination under anaesthesia and defunctioning colostomy was done. As a result, a decision was made by the consultant surgeon to perform a defunctioning stoma on the Respondent.

[10] On 21 May 2017, the Respondent was allowed to be discharged. A follow-up appointment was fixed at Sultanah Bahiyah Hospital, Alor Setar, on 23 May 2017.

[11] During the follow-up session, the Respondent was told to delay the sphincter injury repair and to continue with conservative management, plus the management of the stoma bags.

[12] The Respondent sought second opinions and went for a few follow-ups at other specialist hospitals.

[13] On 14 September 2017, at Pusat Perubatan Universiti Malaya ("PPUM"), an endoanal ultrasound was conducted on the Respondent. It was found that there was a 90-degree loss of the internal sphincter (10 to 2 o'clock), which was in keeping with the mixed injury, where the functional loss was more predominant than the anatomical loss. It was suspected that there was an element of traction injury to the pudendal nerve at the time of OASI, causing a neurogenic predominant loss of function.

[14] On 4 December 2017, the Respondent was offered to undergo a graciloplasty or sacral neuromodulation ("SN") procedure by the PPUM Plastic and Colorectal team. The Respondent was told that the SN device would cost her around RM65,000.00 minus the surgery.

[15] On 21 June 2018, the PPUM Plastic Surgery team performed graciloplasty on the Respondent because of failed overlapping repair due to severe external anal sphincter injuries and associated nerve injury. The procedure was claimed to have not improved the Respondent's condition.

[16] The Respondent claimed that the Appellants' negligence in her management had caused the injury and all the complications that she had suffered. The Respondent proceeded to file this action against the Appellants sometime in April 2020 at the High Court.

[17] On 23 March 2021, a consent judgment was recorded by the parties in which the Ap