Salleh Abas F.J

(delivering the judgment of the Court): For the purpose of this judgment Respondent No. 2 is referred to as "the respondent", Respondent No. 3 as "Dr. Susila" and Respondent No. 4 as "the Government".

The respondent sustained a comminuted fracture of left tibia and a fracture of left clavicle. These injuries were caused by a road accident between a motor cycle NC 2668 ridden by him and a motor car NG 6322 driven by the appellant. The accident occurred on October 24, 1975 at about 6.30 p.m. near the junction of Jalan Genuang and Jalan Sia Her Yam, Segamat in the State of Johore. He was then immediately taken to Segamat District Hospital, where he was attended to by Dr. Susila. After an x-ray was taken of his left leg a complete plaster cast, known as POP long boot was applied to the leg. During the night he had great pain in the leg and so was given a 75 mg. pathedine injection. Despite the injection the pain did not cease but continued with greater severity. On the next day, i.e. October 25, at about 8.00 a.m. Dr. Susila and Dr. S. Kumarappan, the Consultant Surgeon attached to the Hospital saw the respondent in the ward. The respondent complained of having pain to the two doctors, and except for another 75 mg. pathedine injection nothing was done to the respondent's leg until 4.00 p.m. on that day, when a second x-ray was taken. On the following day, i.e. October 26 Dr. Susila saw the respondent again and on noticing that the POP was a "bit tight", she ordered it to be slit and when she found that the slitting was insufficient to relieve the pressure which had been building up within the plaster cast due to swelling the respondent was taken to the operation theatre to be attended to by Dr. Kumarappan. It was then that Dr. Kumarappan found that the respondent could no longer move his left toe, which was cold and unpulsated. He immediately performed an operation to remove the POP completely. After the removal the respondent was sent on the same day to Malacca General Hospital as an emergency case. At this Hospital another kind of operation known as investigation of arteries was performed on the respondent. After this operation his leg improved slightly but later turned gangrenous and as a result the leg had to be amputated. The amputation was at first done below the knee on November 8, 1975, but due to infection a second amputation above the knee was performed on November 27, 1975. Finally the respondent was discharged from the Hospital on December 24, 1975.

He sued the motor car driver, i.e. the appellant, Dr. Susila and the Government for damages in respect of the initial injuries caused to him in the road accident and the final incapacity resulting from the Hospital treatments given to him. The appellant admitted liability as regards the road accident but denied it as regards the amputations of the respondent's leg. The learned judge absolved Dr. Susila and the Government from any blame and held the appellant to be solely responsible for the misfortune of the respondent. He therefore awarded damages for the respondent solely to be paid by the appellant. Grieved by this decision, the appellant now appeals to us.

The question before us is whether Dr. Susila and the Government, in whose Hospitals the respondent was treated and who employed Dr. Susila were in any way guilty of negligence in applying the POP long boot to the respondent's leg. If so, damages awarded to the respondent must be apportioned between the appellant on the one hand and Dr. Susila and the Government on the other.

The law on medical negligence is clear enough but its application is often difficult as facts and circumstances are not the same in each case and so must vary from case to case. For the purpose of this judgment it is necessary to state, even if briefly, the law on the subject so as to guide us in determining on the facts of this case whether Dr. Susila and the Government are guilty of negligence. A doctor's duty towards his patient