The standard of proof for future damage in civil cases is on a balance of probabilities, allowing compensation based on reasonable possibilities, not mere speculation.

[1] The appellant was born on 14 May 2007 at Sungai Buloh Hospital, which is owned and operated by the 1st respondent. The 2nd and 3rd respondents are obstetrics and gynaecology medical offier and consultant paediatrician respectively, who were alleged to have been negligent in the delivery of the appellant and in the proper attending of the appellant and her mother before, during and after the appellant's birth.

[2] The appellant, who was suing through her father as her next friend, claimed negligence on the part of the respondents in attending to the appellant's mother's pregnancy which led to the birth of the appellant and in the care and treatment given to the appellant following her birth. The appellant alleged that as a result of the negligence, the appellant was severely and irreversibly braindamaged and has now suffered from Quadriplegic Spastic Cerebral Palsy.

[3] On the date this matter was set for trial at the High Court, liability was agreed between the parties and the trial proceeded only on the issue of damages. At the end of the trial, the learned High Court Judge awarded a total sum of RM1,193,442.39 as damages together with interest and costs.

[4] Being dissatisfid with the quantum of damages awarded by the High Court, the appellant lodged an appeal to the Court of Appeal. On 24 February 2014, the Court of Appeal dismissed the appellant's appeal and affimed the award of damages made by the High Court.

The Question

[5] The appellant applied to this Court for leave to appeal against the decision of the Court of Appeal, which was granted on 18 August 2014 on the following sole question of law:

"Whether the standard of proof for future damage is proof of a possible likelihood as decided by the Courts of Appeal of England and Canada in Hawkins v. New Mendip Engineering Ltd [1966] 3 All ER 228 and Schrump et al v. Koot et al Lexsee 18 OR (2D) 337 respectively or on strict proof as decided by the learned trial judge and accepted by the Court of Appeal?"

The Submissions

[6] The appellant argued that the learned trial judge had allowed only some items of damages, all of them in sums lower than what were awarded in other comparable cases and rejected completely the claim regarding some other items, even though such items had been allowed in other like cases, including in the Court of Appeal.

[7] With regard to the claim for future loss and damage, it was argued for the appellant that the learned trial judge had wrongly decided that the standard of proof for such claim was strict proof or specifi proof. This, according to the appellant, had resulted in the failure on the part of the learned trial judge to give a proper regard on the evidence available before her and further, resulted in a huge reduction in compensation for future loss and damage in the present case.

[8] It was contended by the appellant that the correct standard of proof as regards future damage is as that stated in Schrump v. Koot [1977] 82 DLR (3d) 553 and Hawkins v. New Mendip Engineering Ltd [1966] 3 All ER 228. It was argued that in Schrump, the Court held that the standard of proof was "that there is a reasonable chance of such loss or damage occurring". It was further submitted that a similar approach was also used in Hawkins whereby the Court used words and phrases such as "a real and substantial possibility or risk", "likely future possibilities", "possibilities that might occur" and other similar terms to denote the possible occurrence of future uncertain events as regards the standard of proof required in a claim for future damage.

[9] Apart fro