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2018 MarsdenLR 391
COURT OF APPEAL PUTRAJAYA
MUHAMMAD YASSEIN ZULISKANDAR – Appellant
Versus
KERAJAAN MALAYSIA & ORS – Respondent
[Civil Appeal No: J-01(IM)-119-04-2017]
Court upheld the reasonableness standard for private healthcare claims and affirmed partial damages based on specific case circumstances.
Headnote:In considering the appeal, the court analyzed the principles of medical negligence and damages calculation as established in prior case law. The plaintiffs filed a suit alleging negligence resulting in severe birth injuries to the 1st plaintiff, seeking various damages pertaining to future expenses. Findings affirmed past awards but allowed adjustments for claims, noting substantial compliance with reasonableness standards. The court framed issues on damages claims and adjusted rulings based on established precedent and the unique circumstances of the case. The final outcome adjusted specific damage claims and refused costs increase motions.
| Table of Content |
|---|
| 1. appeal against liability and damages assessed. (Para 1 , 2 , 3) |
| 2. overview of the appeal's history and medical negligence claim. (Para 5 , 6) |
| 3. particular claims for damages contested. (Para 7 , 19) |
| 4. concluding decisions and adjustments to awarded claims. (Para 8) |
| 5. application of the one-third rule in assessing private healthcare claims. (Para 9 , 12 , 15) |
| 6. reasonableness in claims emphasized. (Para 10 , 18) |
| 7. court's rationale on entitlements affirmed. (Para 11 , 16 , 21) |
| 8. court's analysis on justifying medical expenses for private healthcare. (Para 20) |
| 9. discussion on various claims for expenses and court's justifications. (Para 22 , 28 , 31) |
| 10. final determinations and adjustments rendered. (Para 26 , 30) |
[1] This is an appeal arising out of a decision by the High Court at Johor Bahru given on 2 March 2017. The plaintiffs in the High Court had filed a suit alleging medical negligence on the part of the defendants. On 30 November 2010, the High Court found liability against the defendants and ordered damages to be assessed by the Deputy Registrar of the High Court ("DR").
[2] The assessment was undertaken by the learned DR who made awards of RM2,005,248.24 in damages and RM100,000.00 as costs together with interest at the rate of 4% per annum on both general and special damages. Against this decision, the plaintiffs appealed to the High Court Judge. On 2 March 2017, the learned judge dismissed the plaintiffs' appeal save for increasing the amount of the medical expenses to RM7,353.81 and increasing the postjudgment interest to 8% per annum.
[3] The 1st plaintiff and the defendants appealed against the order of the High Court Judge. The appeal by the defendants was discontinued prior to the hearing of this appeal. This appeal is therefore an appeal by the 1st plaintiff against quantum only.
[4] The appeal was heard on 11 April 2018 and adjourned to a date for decision. This is now our decision. For convenience, the parties will be referred to as they were in the High Court. This appeal is by the 1st plaintiff through his father and for convenience will be referred to, for the most part, as the appeal by the plaintiff.
Brief Background
[5] The 1st plaintiff, Muhammad Yassien bin Zuliskandar, suffered brain damage during his birth on 8 October 2007 at Hospital Sultanah Aminah, Johor Bahru. In medical terms, his case was diagnosed as severe spastic quadriplegia cerebral palsy with cognitive motor, speech and vision impairments. He has been and will remain completely dependent on carers throughout his life for all aspects of daily living. The 2nd and 3rd plaintiffs are the mother and father respectively of the 1st plaintiff.
[6] A medical negligence suit was filed by the plaintiffs in 2008. After a lengthy trial, liability was pronounced against the defendants with damages to be assessed. An appeal against liability was initially filed by the defendants but later withdrawn. An assessment of damages was then undertaken by the learned DR from 18 July 2013 to 21 May 2014 and awards were made as mentioned earlier. On appeal, the learned judge on 2 March 2017 dismissed the plaintiffs' appeal save for the matters stated earlier.
The Appeal
[7] Before us, the plaintiff's appeal was confined to the following matters:
(a) that a "one-third practice" and the case of Sathisvaran Chandrasegaran v. Agilan Vanmugelan & Anor, ("Sathisvaran") were wrongly applied in respect of various items of damages;
(b) that the plaintiff should be awarded damages for the cost of future living expenses after he attains the age of 18 years;
(c) that the plaintiff should be awarded damages for future pain and suffering arising out of future surgery;
(d) that the plaintiff should be awarded damages for the cost of future respite care; and
(e) that the plaintiff should be awarded damages for the additional cost of holidays.
Our Decision
[8] In respect of the claims which are the subject-matter of this appeal, it may be convenient to set out in tabular fo
