2026 MarsdenLR 1829

HIGH COURT MALAYA JOHOR BAHRU
NORADURA HAMZAH, JC
MUHAMMAD ALIFF IKHMAL JEFFRY – Appellant
Versus
PENGARAH HOSPITAL KOTA TINGGI JOHOR BAHRU & ORS – Respondent
[Civil Suit No: JA-21NCvC-5-02/2021]

A defendant cannot raise an unpleaded defence of res judicata in closing submissions. Furthermore, separate tortfeasors are not protected by prior settlements between the plaintiff and other parties, and a defendant cannot use the consequences of its own failure to provide protocol-mandated rehabilitation to diminish damages for prosthetic support.

Headnote:(A) Rules of Court 2012 - Order 18 Rule 8(1) - Medical negligence - Quantum of damages - Res judicata and estoppel - The principle of pleading; party seeking to rely on estoppel must specifically plead facts giving rise to it - Failure to plead an affirmative defence in pleadings creates a fatal procedural irregularity. (Paras 14, 15)

(B) Civil Law Act 1956 - Section 10 - Apportionment of liability - Double recovery - Principle against double recovery does not operate as a blanket bar to a subsequent action for distinct causes of action arising from different tortious acts, provided that compensation already received for overlapping heads of damage is deducted. (Paras 16, 17, 23)

(C) Medical Negligence - Assessment of damages - Prosthetic devices - Where the failure to adapt to a prosthetic limb is a direct result of the lack of mandatory, standard-protocol rehabilitation care, a defendant may not rely on the plaintiff's non-adaptation to minimize the quantum of damages for a more appropriate device. (Paras 49, 52, 54)

Facts of the case:
A plaintiff initiated a claim for medical negligence after suffering a limb amputation due to a failure to diagnose and treat a vascular injury. The defendants sought to invoke the principle of res judicata, arguing that a prior settlement regarding the accident that caused the initial injury acted as a bar to the present medical negligence claim. Evidence further showed that the plaintiff was not referred to critical follow-up rehabilitation following the amputation, which impacted the plaintiff's ability to utilize prosthetic technology.

Findings of Court:
The court held that the defendants' failure to plead res judicata in their defence prevented them from raising it at the stage of closing submissions. Furthermore, the court found the doctrine inapplicable as the parties and causes of action were distinct. The court awarded damages for pain and suffering based on the current judicial trend and allowed the cost of a high-tech prosthetic system, holding that the institution's failure to provide rehab could not be used to justify a lower-tier device for the plaintiff.

Issues: Whether a prior consent judgment in an accident claim acts as a bar to a subsequent medical negligence claim against different parties; whether an unpleaded defence can be raised in closing submissions; and the appropriate quantum of damages for a young amputee, specifically regarding prosthetic selection.

Ratio Decidendi: The court affirmed that parties are strictly bound by their pleadings and cannot introduce unpleaded defences late in proceedings. On the merits, distinct torts involving different parties do not trigger cause of action estoppel. Damages for medical negligence must be assessed based on established trends, and a defendant cannot rely on the consequences of its own systemic negligence (failure to rehabilitate) to limit the quality of assistive devices provided to the plaintiff.

Result: Judgment for the plaintiff in the sum of RM1,967,082.55.