JUDGMENTBY: ABDUL MALEK AHMAD JCA

(delivering the judgment of the court): In his statement of claim filed on 23 December 1981, the plaintiff, through his father and next friend, had asked for special damages of RM46,000 with interest at 8%pa from the date of the writ of summons to the date of realization, general damages inclusive of future loss of earnings and interest thereon from the date of judgment to the date of realization, costs and further or other relief.

He had originally cited the President and General Secretary of the Chinese Maternity Hospital (the hospital) as well but had subsequently withdrawn his claim against them leaving only the present three defendants. The first and second defendants were both consultants attached to the hospital at the material time. His claim against them is for damages for pain and suffering and causing blindness to his eyes due to their negligence when he was under their care.

As for the third defendant, he had pleaded that they were vicariously liable for the negligence of the first and second defendants by virtue of being their employer since the damage for the plaintiffs pain and suffering was due or caused within the scope and during the first and second defendants employment as consultants at the hospital.

The plaintiff was born at 30 weeks old on 28 December 1975 at the hospital. Being premature, he was kept in an incubator and given oxygen therapy from that date to 7 January 1976 and discharged on 6 February 1976. His parents were not told of any defect in the vision of the plaintiffs eyes at the time of discharge. Subsequently in that year, the plaintiffs father and next friend had brought to the second defendants attention as to the defect in the plaintiffs vision but the second defendant did not provide any treatment saying that it would be corrected by itself and that the plaintiffs vision would be normal.

The plaintiff further pleaded that after some time, it was revealed that he was blind and consultations with eye specialists indicated that he was suffering from retrolental fibroplasia (RLF) said to have been caused by excessive oxygen administered immediately after birth and prior to discharge from the hospital, due to the failure of the first and second defendants in not controlling and monitoring the supply of oxygen into the incubator and at the same time not having the plaintiff examined by the ophthalmologist during the period of the oxygen therapy.

We heard five appeals together. The first appeal (W-02-459-1995) is by the second defendant against that part of the decision made on 27 January 1995 that directed him to pay general damages of RM100,000 to the plaintiff with interest and costs as prayed and that he be liable to the extent of 40% in respect of such award.

The second appeal (W-02-398-1995) is also by the second defendant but this time against that part of the decision on 13 February 1995 which gave him a Sanderson order for the costs of the first defendant.

The third appeal (W-02-398-1995) is by the third defendant against that part of the decision ordering that they are 60% liable for the general damages awarded to the plaintiff in the sum of RM100,000 with interest and costs.

The fourth appeal (W-02-461-1995) is by the second defendant against the decision made on 25 March 1995 dismissing with costs his application to set aside the sealed and signed order dated 13 February 1995.

The fifth appeal (W-02-397-1995) is by the third defendant against the decision made on 25 March 1995 dismissing with costs their application to vary the sealed order dated 13 February 1995 and served on them on 23 February 1995.

Encik PS Ranjan of learned counsel for the second defendant started his submissions by saying that the plaintiff was born 69 days too early on 28 December 1975 at 3.25pm and was placed in the incubator following birth. The first defendant had seen him some time after birth at which point the plaintiff was already receiving oxygen at ten