In medical negligence claims, damages must be substantiated with evidence; courts have discretion to award based on fairness, reasonableness, and the impact of negligence on the injured party.

Introduction

[1] This is a claim by the plaintiffs against the defendants for damages arising out of medical negligence at Hospital Raja Permaisuri Bainun, Ipoh, which led to the death of the deceased child, Hiejjaz Fadzlie Bin 30 Hishamuddin, on 21 May 2018. The plaintiffs seek general damages, special damages, aggravated damages, vindicatory and exemplary damages.

Background facts

[2] The deceased, an 11-month-old child, was taken to the hospital on 5 April 2018 with symptoms of fever, cough, and difficulty breathing. Despite clear signs of respiratory distress, there were delays in medical intervention. The treatment administered was inadequate and lacked proper escalation to a specialist facility. The child suffered for over a month with multiple complications before succumbing to septic shock and 40 passed away on 21 May 2018.

[3] The defendants have admitted liability in this matter, and the current proceedings concern only on assessment of damages.

[4] I will address the assessment of damages in the following sequence:

a) Special damages;

b) General damages;

c) Aggravated damages

d) Exemplary damages; and

e) Interest and Costs.

Special Damages

[5] The principles governing special damages require the plaintiffs to establish actual pecuniary loss resulting from the defendants' actions. In Jub'li Mohamed Taib Taral & Ors v. Sunway Lagoon Sdn Bhd 2001 MarsdenLR 353 ; 2001 MarsdenLR 1716 ; , the High Court held that a plaintiff cannot merely enumerate damages but must substantiate them with evidence. Similarly, the Federal Court in Sam Wun Hoong v. Kader Ibramshah [1980] 1 MLRA 712 ; 1981 MarsdenLR 386 , reaffirmed that special damages must be quantifiable, such as medical bills or lost earnings.

[6] However, the courts recognise that a plaintiff is not expected to maintain detailed records of every expenditure. Both documentary and oral evidence can be relied upon to substantiate such claims, as provided under s 3 of the Evidence Act 1950 . In Rohgetana Mayathevan v. Dr Navin Kumar & Ors and Other Appeals 2017 MarsdenLR 1076 ; ; , the Court of Appeal confirmed that once special damages are pleaded and particularised, they may be proven through oral or documentary evidence, provided the amounts claimed are reasonable and justifiable. This principle was reinforced in Nurul Husna Muhammad Hafiz & Anor v. Kerajaan Malaysia & Ors [2015] 1 MLRH 234; [2015] 1 CLJ 825; [2015] 1 PIR 2, where the Court held that the absence of receipts does not automatically negate a claim for special damages.

[7] Furthermore, courts emphasise the principle of reasonableness when assessing such claims Expenses, including travel costs, medical supplies, and caregiving by family members, may be awarded based on credible testimony alone if the sums claimed are reasonable. In Sivalingam Periasamy v. Periasamy & Anor [1995] 2 MLRA 432; [1995] 3 MLJ 395; [1996] 4 CLJ 545; [1996] 3 AMR 3506, the Court found that the absence of challenge by the 1st defendant to the plaintiff's oral evidence was determinative, permitting the Court to accept the claims as truthful. Therefore, an obj