Compensation for pain and suffering must reflect the totality of loss experienced, regardless of the unawareness or unconsciousness of the claimant.

The deceased was admitted into the Hospital Sultanah Aminah Johor Bahru on 10.10.2007 to undergo surgery. The surgery was performed on 11.10.2007. The date of the incident to which the defendants have admitted liability is 28.10.2007. The deceased passed away on 10.10.2009.

The plaintiff called 7 witnesses and the defendants called the 10th defendant herself. The following awards in respect of Special Damages and General Damages have been made after considering the evidence adduced, the written submissions and oral submissions of learned counsel of the parties herein.

The award for pain and suffering is often treated together with the loss of amenities. Learned counsel for the plaintiff submitted that RM250,000.00 should be awarded for pain and suffering and loss of amenities ( Jennifer Anne Harper v. Timothy Theseira ; Bujang Bin Mat & Anor v. Lai Tzen Hal & Anor , ; Wong Li Faff William (an infant) v. Haidawati Bte Bolhen & Anor ; Azim Muzzammil Iman Bin Ruslan v. Kerajaan Malaysia , Civil Summons No. S7-21-246-2003 (unreported); A'aliyah Binti Syarhril, an infant suing by her mother and next friend Khairul Bahyah Binti Samah v. Government of Malaysia Civil Summons No. S3-21 -293-2005 (unreported)). In reply, learned Federal counsel argued that RM17,500.00 should be awarded (Yang Salbiah & Anor v. Jamil bin Harun[1980] 1 MLRA 716; Wong Li Faff William, supra ; Jonathan Immanual s/o Vimalkumar & Anor v. Jukri bin Jukrana & 3 Ors ; Raja Gupal Ramasamy v. Sagaran Pakiam ; [1998] 5 CLJ 656; [1999] 2 AMR 2464; Chin Jenn Hae v. Lakshamanan a/I Gangaish & 3 Ors; Bujang Mat, supra ).

Pain and suffering covers the physical pain of the injury and includes past and prospective pain including pain from medical treatment. It encompasses the medical treatment, the length of hospital stay, the number of operations, the loss or partial loss of use of the affected parts of the body after the incident, the element of depression and the reduction of the expectation of life. Loss of amenities includes loss of body faculties, deprivation of ordinary experiences, sexual impotence and loss of marriage prospects (objective elements); personal sense of loss (subjective element). It has been established that the fact that the plaintiff was unconscious of the pain and suffering does not eliminate the loss of the ordinary experience and amenities of life - the loss of amenities of his good and useful life. In such cases, damages for loss of amenities instead of pain and suffering can be awarded ( Lim Poh Choo v. Camden Health Authority [1980] AC 174).

Subsequent to the incident on 28.10.2007 until his demise on 10.11.2009, the deceased was in a state of coma; he was unaware of his surroundings and the people around him. He was not emote; he could not speak, smile or feed himself. This fact is borne out by the evidence adduced at the trial. In fact the deceased was unconscious throughout the entire 743 days. The authorities cited by the plaintiff involved more serious and varied injuries, greater appreciatbn of pain and suffering and loss of amenities. Except for Jennifer Anne Harper, supra all the other victims had a comparatively longer life span and correspondingly longer period of pain and suffering and loss of amenities. The Court agrees with learned counsel for the plaintiff that a mathematical approach in computing the award is inappropriate. Instead, the award should be reflective of all the surrounding circumstances of the case. If damages are awarded on a correct basis, it is of no concern to the Court to consider any question as to the use that may be made of the money awarded; as damages are first and foremost for replacing with the deceased had lost (Yang Salbiah, supra ). As in Lim Poh Choo' s case, the award for loss of amenities must consider the fact that the fact of deprivation is a substantial loss regardless of whether the deceased is aware of it or not.

The deceased was unconscious throughout the period in question. Be that as it ma

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