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1. Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443
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 MOHD SABRI BIN MOHAMAD ZIN v DR M NACHIAPPAN & ANOR
CaseAnalysis
| [2017] MLJU 2443

Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443
Malayan Law Journal Unreported

HIGH COURT (MELAKA)

VAZEER ALAM MYDIN MEERA, J
GUAMAN SIVIL NO.: 22NCVC-69-12/2014
1 November 2017

M.S Dhillon (P S Ranjan & Co) for the Plaintiff.

Maidzuara Mohamed bersama Charlaine Chin (Raja, Darryl & Loh) for the Defendant.

Vazeer Alam Mydin Meera J:

ALASAN PENGHAKIMAN

[1]This is a claim for professional medical negligence. The 1st Defendant was at the material time, a Consultant
Neurosurgeon with a practice at Hospital Pantai Ayer Keroh, Melaka (“Hospital”). The 2nd Defendant owns and
manages the Hospital, At the material time, the Plaintiff was a patient of the 1st Defendant.

[2]On 1.10.2015, i.e. the first day of trial:

(a) a Consent Judgment as per draft in enclosure 42 was recorded between the Plaintiff and the 2nd Defendant
wherein the 2nd Defendant agreed to make an ex-gratia payment in the sum of RM35,000.00 to the
Plaintiff; and
(b) the 1st Defendant admitted liability on the claim and thus judgment on liability was recorded against the 1st
Defendant and the trial proceeded only on quantum of damages and cost.

[3]The facts giving rise to the claim are briefly as follows:

[a] The Plaintiff, a certified professional engineer employed as Development Lead Manager by Dyson
Malaysia, a British company involved in the design and manufacture of household electrical products, was
on 5.12.2011 admitted into the Hospital under the care of one Dr Tay Mok Heang, a Consultant Physician
and Cardiologist, with a practice at the Hospital. The Plaintiff had complained of upper back pain as well as
pain and numbness in the left upper limbs for about two weeks.
[b] On 6.12,2011, Dr Tay Mok Heang referred the Plaintiff to the 1st Defendant. The Plaintiff informed the 1st
Defendant that he lifted a heavy object two (2) weeks before and since then he developed pain in his left
shoulder and left arm as well as numbness and weakness in his left hand.
[c] The 1st Defendant clinically examined the Plaintiff and noted that the MRI report of the scan of the Plaintiff’s
cervical spine carried out on 5.12.2011 showed cervical disc prolapse at level C6/7. This prolapsed disc
was compressing the left aspect of the spinal cord and causing left foot exit foraminal and left foot canal
stenosis (narrowing of the cervical disc space).
[d] Given the MRI report and the 1st Defendant’s clinical examination of the Plaintiff, the 1st Defendant advised
the Plaintiff to undergo a surgical procedure known as anterior cervical discectomy with rhyzolysis and
cage insertion (“Surgery”) to relieve him of the symptoms in the left upper limb that he complained of.
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Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

[e] An anterior cervical discectomy surgery involves removal of the intervertebral disc and fusion between the
cervical vertebrae, in this case it meant the removal of the intervertebral disc between C6 and C7 and the
fusion of the C6 and C7 vertebrae.
[f] Access to these spinal vertebrae is obtained by making an incision at the front of the neck. The location of
the incision and the means of obtaining access to the vertebrae means that there is a risk of causing injury
to the nerve which supplies the vocal cords, and hence the possibility of vocal cord paralysis.
[g] On 7.12.2011, the 1st Defendant advised the Plaintiff that the risks associated with the Surgery include,
among others, paralysis, infection, post-operative bleeding and vocal cord palsy in up to 5% of cases. The
Plaintiff agreed to undergo the Surgery and signed a Consent Form. The Plaintiff underwent the Surgery
on 8.12.2011, which was undertaken by the 1st Defendant in the 2nd Defendant’s Hospital.
[h] In the immediate period following the Surgery, the Plaintiff noticed that he had developed hoarseness of
voice. Soon after, he also had pain in his upper back and neck.
[i] As a result of the symptoms he was experiencing, the Plaintiff went on to consult Dr Ahmad Khan (PW3) at
Johor Specialist Hospital. After ordering an MRI investigation and reviewing the results of the same, PW3
informed the Plaintiff that the cervical fusion surgery was not performed at the C5-C6 levels, but was
instead performed one level below, which was at the C7-T1 levels.
[j] Obviously, the 1st Defendant had carried out the surgical procedure at the wrong level of the spinal
vertebrae and the Plaintiff had not given his consent to an operation at the C7-T1 spine levels,
[k] PW3 had also referred the Plaintiff to a consultant ear, nose and throat (ENT) surgeon, Dr Mohd Ridzo,
who informed the Plaintiff that his hoarseness of voice was a result of paralysis of his right vocal cord and
that this was caused by the Surgery performed by the 1st Defendant.
[l] The Plaintiff was examined by Dr Kuldeep Singh Dhillon, consultant orthopaedic surgeon, who was
engaged by the Plaintiff as expert to give evidence at trial, Dr Dhillon (PW6) in his expert report, had
mentioned that the fusion operation was performed at levels G7-T1 and that a partial discectomy was
performed at level C6-C7. This is not disputed by the 1st Defendant. Dr Dhillon’s criticism of the 1st
Defendant in regard to the Surgery is two-fold. Firstly, Dr Dhillon was of the opinion that the Surgery (i.e.
the anterior cervical discectomy at levels C6-C7) as advised and performed by the 1st Defendant was
unnecessary in the circumstance. Secondly, a partial discectomy should not have been performed at level
C6-C7, and, even if done, the procedure should have been completed with a fusion procedure.

[4]The Plaintiff complains that as a result of the Surgery he has been suffering pain in the upper back and neck,
which he describes as persistent aching. According to the Plaintiff the pain is continuous and the severity varies
from time to time depending on the Plaintiff’s work schedule. The pain is aggravated by prolonged sitting and
driving. The Plaintiff also complains of:
i. Radiating pain from the neck down to the right arm, with some associated numbness. This pain is episodic
and has a burning quality.
ii. Intermittent choking sensation with difficulty in breathing since July 2015, with resultant inability to speak
for prolonged periods.
iii. Uncontrolled finger movement and weakness in left arm.

[5]Post-surgery clinical examination of the Plaintiff showed that he had:

i. Stiffness of neck muscles, with reduction in range of motion in all directions.
ii. Tenderness upon palpation of the lower neck segment (C5-C7) and the upper interscapular region.
iii. Symmetrical reduction in muscle strength of the upper limbs (Grade 4).
iv. Symmetrical impairment of sensory function (reduction to touch and pinprick sensation) in the upper limbs.
v. Right vocal cord palsy (as visualised on flexible endoscopic examination).

Post-surgery, the Plaintiff had to be hospitalised several times to attend to the above complaints, and in particular to
address the consistent pain that he suffered. The Plaintiff states that he continues to need physiotherapy, speech
therapy, pain therapy and psychological counselling. The Plaintiff claims that his work performance and promotion
have been adversely affected by the physiological and psychological impairments that he has suffered as a result of
the Surgery. Wherefore, the Plaintiff claims damages.
 Page 3 of 15
Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

[5]The damages claimed by the Plaintiff comprise the following:

(a) Special damages - ie for damages incurred up to the time of the filing of the Statement of Claim i.e. from
8.12.2011 to 23.12.2014, which comprise primarily:
i. medical expenses incurred at various hospitals;
ii. travelling expenses; and
iii. costs of obtaining
(b) General damages which comprise:
i. Pre-trial damages - ie damages incurred between the fifing of the Statement of Claim and the trial i.e.
from 24.12.2014 to 13.3.2017;
ii. Future damages - ie damages incurred from 13.3.2017 onwards; and
iii. Pain, suffering and loss of amenities.

[6]The law on damages in general was very well expounded by James Foong FCJ in the Federal Court decision of
Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610 at 665
as follows (the (earned Judge citing from McGregor on Damages (16th ed. at page 236):

A plaintiff claiming damages must prove his case. To justify an award of substantial damages he must satisfy the court
both as to the fact of damage and as to its amount, if he satisfies the court on neither, his action will fail, or at the most he
will be awarded nominal damages where a right has been infringed. If the fact of damage is shown but no evidence is
given as to its amount so that it is virtually impossible to assess damages, this will generally permit only an award of
nominal damages; this situation is illustrated by Dixon v Deveridge [1825] 2 C & P 109 and Twyman v Knowles [1853] 13
CB 222.

And in respect of special damages, it is trite law that special damages if pleaded, have to be specifically proven
by the claimant. In Ong Ah Long v Dr S. Underwood [1983] 2 MLJ 324, the Federal Court held that:

...it is a well-established principle that special damages in contrast to general damages, have to be specifically pleaded
and strictly proved.

Further the Federal Court in Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 reiterated that principle and held that:

It is to be observed that the law in regard to a claim for special damages is clear law in that it must not only be pleaded but
proved. Diplock, LJ (as he then was) in Ilkiw v Samuels clearly expressed the view that:

“... it is plain law - so plain that there appears to be no direct authority, because everyone has accepted it as being the
law over the last hundred years - that one can recover in an action only special damage which has been pleaded, and
of course, proved.”

[7]Therefore, as a start, the Plaintiff would have to prove the fact of damage and the quantum. The fact of damage
would include establishing the causal link between the defendant’s wrongdoing and the injury or damage sustained
by the plaintiff. In the present case, despite admitting liability for negligently rendered treatment to the Plaintiff, the
1st Defendant disputes the causal link between Surgery and the Plaintiffs current medical complaints and
complications arising therefrom. The 1st Defendant contends that the Plaintiffs current symptoms were due to the
natural progression of his preexisting degenerative condition in his cervical spine, i.e. cervical spondylosis, and had
nothing to do with the negligently-performed surgery by the 1st Defendant.

[8]During cross-examination of the Plaintiff’s expert witness DR Dhillon (PW6), learned counsel for the 1st
Defendant had suggested that, considering the Plaintiff’s original problem had been at levels C6-C7, and that since
the time of the surgery in 2011, there had been abnormal changes involving multiple levels of the cervical spine,
 Page 4 of 15
Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

this a natural progression of the pre-existing degenerative condition in his cervical spine and that it had nothing to
do with the Surgery, It was-also suggested to PW6 that, prior to the operation, the Plaintiff had pain in his left upper
limb, and that, following the operation, he had developed pain in the right upper limb, thereby appearing to imply
that the pain in the right upper limb had nothing to do with the negligently-performed operation.

[9]In support of this contention, learned counsel for the 1st Defendant relies on the 1st Defendant’s expert witness
Datuk Dr Johari (DW2) who opined that the cause of the Plaintiff’s current pain in the neck (including the
interscapular) and pain in the right upper limb are due to the “degenerative disease involving the joint”.

[10]The Plaintiff, on the other hand, contends that the wrongly fused level, i.e. C7/T1, had “worsened the Plaintiff’s
degenerative spinal condition”. However, Datuk Dr Johari (DW2) explained that the fusion at C7/T1 level does not
cause any problem because C7/T1 level is a non-moveable part of the spine. Hence, contrary to the Plaintiff’s
contention, Datuk Dr Johari (DW2) testified that the Surgery did not have any “impact” on the Plaintiff’s current
complaints. In support of that opinion Datuk Dr Johari (DW2) refers to the Plaintiff’s contemporaneous medical
records, particularly the post-surgery MRI scans, and states that they do not show any nerve root impingement on
the right side (to explain the pain in the right upper limb).

[11]In the circumstance, learned counsel for the 1st Defendant submits that there is no medical basis for the
Plaintiff to assert that the Surgery caused or materially contributed to the Plaintiff’s current complaints.

[12]Learned counsel for the Plaintiff joins issue with this contention and submits that there is sufficient evidence of
causal link between the Surgery and the Plaintiff’s current complaints. In this regard, learned counsel for the Plaintiff
refers to the two expert reports of Dr Dhillon (PW6) where PW6 had unequivocally stated that the partial discectorny
performed at level C6-C7 (which, in Dr Dhillon’s unchallenged opinion, should never have been performed), would
produce further instability at the C6-C7 levels and iead to further degeneration of the cervical level. Particularly in
his second expert report, Dr Dhillon had stated that a partial discectomy “can further destablise the segment leading
to progressive degeneration and nerve root impingement”. During examination-in-chief, Dr Dhillon expanded on his
comments set out in his reports by stating that if a partial discectomy was to be done, the procedure should have
been completed with a fusion so that no movement could occur at that level. Dr Dhillon went on to add that if fusion
was not undertaken, the level of instability would increase, leading to “further problems, further degeneration and
nerve root compression and sometimes spinal cord compression”.

[13]Under cross-examination by learned counsel for the 1st Defendant, Dr Dhillon said that the partial discectomy
performed by the 1st Defendant was at least a contributing factor to the progression of the degenerative changes to
multiple levels in the Plaintiff’s cervical spine. According to PW6, in addition to the partial discectomy, the fusion
surgery performed at levels C7-T1 had aiso worsened the Plaintiff’s degenerative spinal condition. This was
confirmed by the 1st Defendant’s own expert, Dr Johari (DW2), where he had stated as follows in his report:

“...The fusion had caused the range of motion of the neck to be marginally limited as under normal condition, movement at
C7-T1 vertebral segments occurred minimally.

It had also caused the naturally occurring spinal degenerative process at C6-7 vertebral segment to be worsen and
advanced to included the C5-6 vertebral segment.

The clinical effect of the fusion and advancement of the degenerative process on En Mohd Safari includes:-
Limitation of the neck movement
Recurrence and worsening of his neck pain complaints
Progression of the neck pain complaints, spreading down to the interscapular region and to both the shoulders

Mechanical or motion related neck and right hand pain...”

When referred to Dr Johari’s (DW2) comments as regards the role of the fusion surgery at levels C7-T1 in
contributing towards the worsening of the Plaintiff’s degenerative condition during examination in chief, Dr Dhillon
(PW6) had said the following:

“The movement in the cervical spine occur at multiple levels which mean when you move forward, backward the whole
spine is moving at Individual levels. When you fuse one level the stresses become increased on the level above, the fused
level. So if you fuse two levels the level above will become more degenerated.”
 Page 5 of 15
Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

In evidence-in-chief, Dr Johari (DW2) was more equivocal about the impact of the fusion and the partial discectomy
on the Plaintiff’s current symptoms by stating that the fusion and partial discectomy may or may not have caused or
contributed to the Plaintiff’s current symptoms. However, Dr Johari (DW2) conceded under cross-examination:
(a) that both the naturally occurring degeneration and the fusion operation had caused the Plaintiff’s condition
to worsen; and
(b) that both the natural degenerative process and the fusion operation were “ significant causes of the
Plaintiff’s current condition.

Thus, I find that both Dr Dhillon and Dr Johari were in agreement that the Surgery had caused or materially
contributed to the injuries suffered by the Plaintiff and the medical complaints associated thereto. In this respect, Dr
Dhillon’s interpretation of the X-ray film states the following:

“Cervical spondylosis from C4 to C7. The degenerative changes were most marked at C5-C8 and C6-C7...”

Similarly, the radiological report on the MRI image taken at Hospital Sultanah Aminah, Johor Bharu on 26.8.2015 as
part of Dr Johari’s assessment states the following:

“Prolapsed intervertebral disc at G5/C8 and C8/C7 levels with possible impingement onto the left C6 and C7 exiting
nerves.”

The fact that the degenerative changes are worst at levels C5-C6 and C6-C7 fits in with Dr Dhillon’s opinion that the
partial discectomy and fusion had contributed to the worsening of the Plaintiff’s condition. It also fits in with Dr
Johari’s opinion that the fusion surgery had caused the naturally occurring degenerative spinal condition to worsen.

[14]The suggestion made by learned counsel for the 1st Defendant that the presence of symptoms in the right upper
limb (as opposed to the left upper limb) is suggestive of an absence of a causative link between the Surgery and
the Plaintiff’s current symptoms is not supported by evidence. Dr Dhiffon had very comprehensively addressed this
issue in evidence when he stated that sometimes findings on clinical examination may not necessarily correlate with
findings on an MRI image. Thus, i agree with submissions of learned counsel for the Plaintiff that the mere fact that
the MRI images do not show impingement of the right nerve roots at levels C5-C6 and C6-C7 cannot be taken as
sufficient evidence that there is no impingement of the said nerve roots.

[15]Dr Dhillon’s opinion on the causal link between the Surgery and the Plaintiff’s current condition is supported by
Professor Ramani (PW8), who testified that the Surgery had contributed materially to the pain which the Plaintiff is
suffering from. Despite being challenged on this point by learned counsel for the 1st Defendant, Professor Ramani
(PW8) did not alter her opinion.

[16]The law on causation is well settled - material contribution to an indivisible injury is sufficient. To satisfy the
requirement of causation, all that the Plaintiff needs to show is that his indivisible injury was caused or materially
contributed to by one, some or all of the negligent acts or omissions of 1st Defendant. See Wu Slew Ying t/a Fuh Lin
Bud-Grafting Centre v Gunung Tunggal Quarry & Construction Sdn Bhd & Anor [2011] 2 MLJ 1, where the Federal
Court held that:

... where evidence is established that there are a multiple of factors that could bring about the injury to the plaintiff. And to
decide whether there is causation in these circumstances the approach of Lord Reid in Borinington Casting Ltd v Wardlaw:
whether any of these acts or events or factors has materially contributed to the plaintiffs injury should be adopted. What is a
material contribution must be a question of degree. This is for the court to decide but certainly anything that is trifle is not
material. As Lord Reid in the same case expounded: ‘contribution which comes within the exception of de minimis non curat
lex (the law does not concern itself with trifles) is not material.’

Thus, a material contribution is a non-negligible, non-trivial contribution to the injury. It is not de minimis. Even a
minor cause can be a significant contribution. A contribution can be material even though it would need to be
combined with another cause so as to lead to damage. And the Federal Court in the earlier case of Majlis
Perbandaran Ampang Jaya v Stephen Phoa Cheng Loon & Ors [2006] 2 MLJ 389;; [2006] 2 CLJ 1 held that:
 Page 6 of 15
Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

Causation is a matter to be determined by common sense and what the law regards as fair, just and reasonable in the
circumstances of a particular case (see Fairchild (suing on her behalf) etc v Gienhaven Funeral Services Ltd & Ors, etc
[2002] 3 WLR 89; March v E & MH Stramare Pty Ltd & Anor (1991) 99 ALR 423 at p 429). The relevant question is
whether the acts and/or omissions of a particular defendant made a material contribution to the harm suffered by the
plaintiff (see Bonnington Casting Ltd v Wardlaw [1958] AC 613 at pp 620623.; Nicholsons & Ors v Atlas Steel Foundry &
Engineering Co Ltd [1957] 1 WLR 631 at p 624; Fairchild (suing on her behalf) etc v Glenhaven Funeral Services Ltd &
Ors, etc; Chappel v Hart (1998) 156 ALR 517 at pp 524-524).

In Athey v Leonati [1999] Lloyd’s Law Reports Med 458 the British Columbia Court of Appeal held that:

As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough
to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants
remain liable for ail injuries caused or contributed to by their negligence.

Thus, in Athey v Leonati a 25% contribution to the injury led to a finding of 100% liability. The court held that where
there is single indivisible injury, any defendant found to have negligently caused or materially contributed to the
injury will be fully liable. The preexisting disposition may have aggravated the Plaintiff’s injuries, but the 1st
Defendant must take the Plaintiff as he finds him, i.e. the thin skull rufe applies. And in this regard if the 1st
Defendant thinks that there is some other cause for the Plaintiff’s injuries, then it is incumbent upon the 1st
Defendant to plead his case on causation. He has not done so. See Patrick Curran on Personal Injury Pleadings,
para F7-0G4.

[17]Hence, ail that the Plaintiff needs to show, on a balance of probabilities, is that the negligence of the 1st
Defendant had caused or materially contributed to his injuries. See Guan Soon Tin Mining Co. v Wong Fook Kum
[1969] 1 MLJ 99 FC. In this regard, I note that there is no discernable break in the chain of events between the
negligent act of the 1st Defendant and the current medical complaint of the Plaintiff.

[18]Taking the evidence in its totality, I find that the Plaintiff has established a compelling case in proving that the
Surgery had on the balance of probabilities caused or materially contributed to the current symptoms and
impairments that the Plaintiff is suffering from. The findings of both the Plaintiff’s and 1st Defendant’s experts, as
discussed above, indicate that a combination of the Plaintiff’s pre-existing condition (and the natural degeneration of
that condition) and the injuries sustained as a result of the Surgery that had caused the Plaintiff’s current medical
complaints. However, since the impairment from the Surgery was a material and significant contributor to the
Plaintiff’s current complaints and ailments, the 1st Defendant would be fully liable for damages flowing from it,
notwithstanding the Plaintiff’s pre-existing condition and the natural degeneration of that condition are also
contributory factors.

[19]As for remoteness of damage, the law is well settled, in cases of medical negligence where it is foreseeable
that the negligence of a medical practitioner would cause the patient to suffer injury, liability will follow. Jackson &
Powell on Professional Negligence, Fifth Edition (2002) Sweet & Maxwell, on the question of foreseeability of
damage states that principle as follows;

In the majority of medical negligence cases, the injury of which the claimant complains is either the continuance of some
illness which ought to have been cured or prevented or else the infliction of some new injury in the course of treatment. In
practice the injury is normally “foreseeable”, whether the contractual or tortious test is applied. Since the defendant is a
medical man, he is well placed to foresee the consequence, of his own mistakes.

The test of foreseeability is “damage which should have been foreseeable in general outline”. It is not necessary
that the quality and extent of the damage should be foreseeable. See Jaswant Singh v Central Electricity Board &
Anor [1967] 1 MLJ 272.

[20]The Privy Council in The Wagon Mound (No. 2) [1966] 2 All ER 709 at p 719(d) held in regard to a reasonable
foreseeable risk of damage, that it is:

... one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would
 Page 7 of 15
Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

not brush aside as far-fetched...

That observation of the Privy Council in The Wagon Mound (No. 2) was followed by the Federal Court in Pacific Tin
Consolidated Corporation v Hoon Wee Thim [1967] 2 MLJ 35. See also Ang Chai Ha & Ors v Sri Jaya Transport
Co. (P. T.M.) Bhd. [1974] 1 MLJ 87.

[21]In applying the principles enunciated in these high authorities, I find that the kind of damage suffered by the
Plaintiff is one that the 1st Defendant would reasonably have foreseen flowing from the Surgery. Thus, I agree with
submissions of learned counsel for the Plaintiff that the requirement of “reasonable foreseeability” has been
satisfied.

[22]Now I move on to the issue of quantum of damages. The first category is special damages, i.e. toss and
damage incurred from the date of occurrence of the negligent act, i.e. 8.12.2011, up to the delivery of the statement
of claim, i.e. 23.12.2014.

[23]Learned counsel for the 1st Defendant submits that each and every item of expense claimed as special
damage must be strictly proved, meaning that it must be supported by documentary evidence of the expense being
incurred. In this regard, learned counsel for the 1st Defendant relies on the dicta of the Federal Court in Ong Ah
Long v Dr S. Underwood [1983] 2 MLJ 324 and Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22, where it was
reiterated that the law in regard to special damages is clear in that it must not only be pleaded but proved. Though
that is the genera] principle, courts have accepted that a claimant is not expected to behave like a book-keeper in
compiling bills and receipts, and meticulously keep a record of his expenses and the supporting documents. Thus,
the Court of Appeal in Rohgetana Mayathevan v Dr Navin Kumar & Ors and Other Appeals [2017] 3 CLJ 311 held
that special damages, so long as they were pleaded and particularised, could be proved by oral or documentary
evidence. See also Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 CLJ 825 ; ABDA Air
Freight Sdn Bhd v Sistem Penerbangan Malaysia Bhd [2001] 3 MLJ 641; Kasirin bin Kasmani [1991] 2 CLJ (Rep)
800. Thus, I have in considering the claim for special damages taken these pronouncements into account, and
where I find the expenses unsupported by documentary evidence are nevertheless reasonable, I have allowed
them.

Special Damage - Medical expenses incurred at various hospitals.

[24]The Plaintiff claims the sum RM50,486.63 for medical expenses incurred and has produced supporting
documents in the form of bills and receipts in the sum of RM44.464.04. The Plaintiff had explained at great length
in his witness statement in regard to the various specialist doctors and therapists he had consulted in Malaysia and
in Singapore, as well as the hospital admissions he had to undergo, in his quest to seek treatment for the neck and
back pain and for the hoarseness of voice he experienced after the operation.

[25]Learned counsel for the 1st Defendant submits that since ail these medical expenses were borne and paid by
the Plaintiff’s employer, the Plaintiff should not be allowed any claim under this head for reasons that:
i. the Plaintiff did not incur these expenses personally;
ii. an award of these damages to the Plaintiff would result in unjust enrichment; and
iii. the right to claim these damages lies with the Plaintiff’s employer who paid the premium and that the
Plaintiff himself has no standing to claim these damages.

[28]If is not disputed that these medical payments were made by the Plaintiff’s employer’s insurer as part of its
employee’s insurance scheme. The expenses were not incurred by the Plaintiff personally, and thus, learned
counsel for the 1st Defendant submits that an award of these expenses as special damages would result in unjust
enrichment. Learned counsel for the Plaintiff on the other hand argues that by virtue of the provisions of section
28A(1 )(a) of the Civil Law Act 1958, payments made by an insurer in respect of any personal injury under a policy
of insurance cannot be deducted when quantum of damages is assessed. Section 28A(1)(a) of the Civil Law Act
1958 reads:
(1) In assessing damages recoverable in respect of personal injury which does not result in death, there shall
not be taken into account-
(a) any sum paid or payable in respect of the personal injury under any contract of assurance or
insurance, whether made before or after the coming into force of this Act
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Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

[27]The Supreme Court in Ward v Malaysian Airlines System Bhd [1991] 3 MLJ 317 had held that insurance
benefits were not deductible under section 28A(1 )(a) of the Civil Law Act 1956 and the common law. Mohamed
Azmi SCJ speaking for the Supreme Court held that:

...Parliament in its wisdom has made it crystal clear that any sum paid or payable in respect of personal injury which does
not result in death ‘under any contract of assurance or insurance’ shall not be taken into account in assessing damages. By
providing no exception, the effect would be to eliminate altogether deductibility even in border line situations although the
injured person has not directly contributed to the insurance scheme.

For the above reasons, it is our opinion that having regard to the nature of the scheme of the policy, the insurance benefits
in this case are not deductible both under s 28A(1)(a) and the common law itself.

[25]That principle was applied by the High Court in Jennifer Anne Harper (sued in her own capacity and as ex
ecutrix of the estate of Bernard Alfred Harper, deceased) v Timothy Theseira [2009] 7 MLJ 711 where Balia Yusof
J (as he then was) held as follows:

This court was further referred to the case of Sin Hock Soon Transport Sdn Bhd & A nor v Low King Ban [2006] 3 MLJ
174;; [2006] 5 CLJ 265 which dealt with the issue of whether medical expenses duly paid by the insurer were claimable by
the insured. The High Court in that case applied the principles in Ward v Malaysia Airlines System Bhd [1991] 3 MLJ 317
and held that the fact that the insurer had paid for such medical expenses were irrelevant and that the insured was
accordingly entitled to be compensated by the defendant therein. The court went on to say that the insured should not be
penalised for his prudence and foresight in taking out an insurance policy to protect his own life, permanent disability or
medical expenses as a result of an accident.

[26]In a departure from the above cases, the Court of Appeal in Sathisvaran Chandrasegaran v Agilan Vanmugelan
& Anor [2012] 4 MLJ 548 had decided that medical expenses paid by an insurer were not recoverable by the
victim of the tort. The Court of Appeal was of the opinion that in a claim for special damages, the test to apply
would be whether the claimant had incurred that expense or had paid an amount, which was a loss to him. The
undisputed facts revealed that the medical expenses were paid by the insurer and that they did not come from the
pocket of the claimant. The Court of Appeal was of the view that only medical expenses incurred by the plaintiff, i.e.
out of pocket expenses by the plaintiff, would come under the category of special damages. As such, the Court of
Appeal held that the claimant had not suffered loss and was not entitled to such claim. The Court of Appeal in that
case had distinguished Ward v Malaysian Airlines System Bhd and refused to follow Sin Hock Soon Transport Sdn
Bhd & Anor v Low King Ban. And instead the Court of Appeal followed the High Court decision in Khairul Sham
Ahmad & Anor v Yesudas Michaelsamy [2005] 2 CLJ 195;; [2005] 2 MLJ 679, where the learned judge opined
that:

... special damages means ‘out of pocket expenses’ which consists of money incurred or paid by the plaintiff which
amounts to a ‘loss’ to the plaintiff... The plaintiff admitted during examination-in-chief that his insurer paid for his medical
bill. He did not pay the bill himself. He incurred no expenses with respect to the medical bill. Therefore, he has no right to
be compensated for the said bill..

[27]This was in keeping of the pronouncement of the House of Lords in British Transport Commission v Gourley
[1956] AC 185 where it was held that:

In an action for personal injuries, the damages are always divided into two main parts. First, that is what is referred to as
special damage, which has to be specifically pleaded and proved. This consists of out of pocket expenses and loss of
earnings incurred down to the date of trial, and is generally capable of substantial exact calculation..... The basic principle
so far as loss of earnings and out of pockets expenses are concerned is that the injured person should be placed in the
same financial position, so far as can be done by an award of money, as he would have been had the accident not
happened....
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Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

Thus, in these cases it was held that medical expenses relating to personal injury cases which are paid by the
insurer cannot be claimed by the insured from the tortfeasor. This was premised on the principle that recovery of
damages cannot be used as a mechanism for unjust enrichment, as the claimant would be paid for an expense that
was not incurred out of his own pockets.

[28]However, in the later case of Soo Cheng Lin v Dr Kok Choong Seng & Anor and Another Appeal [2016] 8 CLJ
368, the Court of Appeal decided not to follow Sathisvaran Chandrasegaran v Agilan Vanmugelan & Anor, but
instead applied the interpretation given to s. 28A(1 )(a) by the Supreme Court in Ward v Malaysian Airlines System
Bhd, i.e. by interpreting s. 28A(1 )(a) in such a way as to give effect to its plain and ordinary meaning and
concluded that medical expenses incurred by the claimant and paid by the insurer are claimable as special
damages, notwithstanding that the claimant did not personally pay these expenses. In doing so, the Court of
Appeal held that in a claim for personal injury, medical expenses paid by the plaintiff’s insurer falls within the
meaning of “any sum paid or payable in respect of the personal injury under any contract of assurance or
insurance” as stated in s. 28A(1 )(a), and is therefore not deductible from the damages recoverable by the plaintiff.
The Court of Appeal in Soo Cheng Lin was of the view that there was no unjust enrichment in such cases and that
the plaintiff out not to be penalized for his wisdom in taking out a private insurance and had paid the necessary
premium to be covered, This the Court of Appeal found was a contractual arrangement between the insurer and
insured, which is independent of the the negligent act of the tortfeasor; and that the tortfeasor ought not to benefit
from the policy of insurance and the premium paid by his victim.

[29]At the time of closing arguments and before delivery of judgment, I was informed by counsel that the decision in
Soo Cheng Lin was pending appeal at the Federal Court, after leave to appeal by the respondents therein was
allowed by consent of parties on several points of law including the question as regards the issue of the proper
statutory construction of s. 28A(1 )(a) when medical expenses are paid by the insurer and not the claimant.
However, pending resolution of this issue by the apex court, I proceeded to determine the matter by reference to
the existing case law. In that regard, this court is faced with two conflicting decisions of the Court of Appeal.

[30]As a matter of law, when the High Court is faced with two conflicting decisions of the Court of Appeal, it is
entitled to chose either of that decision. This was the advice of the Federal Court in Dailp Bhagwan Singh v. Public
Prosecutor [1997] 4 MLJ 845;; [1997] 4 CLJ 645:

The doctrine of stare decisis or the rule of judicial precedent dictates that a court other than the highest court is obliged
generally to follow the decisions of the courts at a higher or the same level in the court structure subject to certain
exceptions affecting especially the Court of Appeal.

The said exceptions are as decided in Young v. Bristol Aeroplane Co. Lid [1944] KB 718. The part of the decision in Young
v, Bristol Aeroplane in regard to the said exceptions to the rule of judicial precedent ought to be accepted by us as part of
the common law applicable by virtue of Civil Law Act 1956, vide its s. 3.

To recap, the relevant ratio decidendi in Young v. Bristol Aeroplane’s case is that there are 3 exceptions to the general rule
that the Court of Appeal is bound by its own decisions or by decision of courts of co-ordinate jurisdiction such as the Court
of Exchequer Chamber. The three exceptions are first, a decision of Court of Appeal given per incuriam need not be
followed, secondly, when faced with a conflict of past decisions of Court of Appeal, or a court of co-ordinate jurisdiction, it
may choose which to follow irrespective of whether either of the conflicting decisions is an earlier case or a later one,
thirdly, it ought not to follow its own previous decision when it is expressly or by necessary implication, overruled by the
House of Lords, or it cannot stand with a decision of the House of Lords. There are of course further possible exceptions in
addition to the three exceptions in Young v. Bristol Aeroplane when there may be cases the circumstances of which cry out
for such new exceptions so long as they are not inconsistent with the 3 exceptions in Young v. Bristol Aeroplane.

.......

In our local context, the Federal Court is to be substituted for the House of lords with regard to the matter under discussion.

In this connection, it is interesting to refer to Cassell & Co. v. Broome [1972] AC 1027, 1054. it was held that courts in the
lower tiers below the Court of Appeal could not rely on the per incuriam rule applied by Court of Appeal for itself, but could
choose between two conflicting decisions. We may add that they may so choose, whatever the dates of the conflicting
decisions, as such dates do not matter to the Court of Appeal itself. [Emphasis added]
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Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

[31]In this regard, I have chosen to follow the later decision of Court of Appeal in Soo Cheng Lin for the following
reason:
(a) the construction given to s 28A(1 )(a) of the Civil Law Act 1956 by the Supreme Court in Ward v Malaysian
Airlines System Bhd is compelling and binding on this court;
(b) Soo Cheng Lin had followed the same reasoning of the Supreme Court in Ward v Malaysian Airlines
System Bhd in coming to its decision;
(c) the maxim “res inter alios acta” namely that a wrongdoer should not reap the benefit of the generosity of
others applies here. The insurance policy taken by the Plaintiff’s employer is a part of the Plaintiff’s contract
of employment or a perk that is given to the Plaintiff out of the employer’s generosity. Hence, there is no
compelling reason for the 1st Defendant, as tortfeasor, to reap the benefit of that contractual entitlement or
employer’s generosity. See Lim Kiat oon & Ors v Lim Seu Kong & Anor [1980] 2 MLJ 39, where Mohamed
Azmi J (as he then was) held that:

... the proposition that there should be no reduction where the money is given gratuitously or advanced by a
sympathetic employer is based on the principle that the generosity of others is res inter alios acta and not
something from which the wrongdoer should reap the benefit.

Indeed, if the 1st Defendant were entitled to deduct what the Plaintiff was entitled to under the policy of
insurance, that would in effect be depriving the Plaintiff from benefits that flow from the policy and the
premiums paid to the insurer, and instead the 1st Defendant would be appropriating to himself the
benefits of the insurance policy for which he did not pay anything at all. See Parry v Cleaver [1969] 1
All ER 555.

(d) the argument of the 1st Defendant’s learned counsel that the Plaintiff himself has no standing to claim these
damages because the right to claim these damages lies with the Plaintiff’s employer or the insurer by
virtue of the subrogation of rights has been considered and dismissed by the courts in other case. In
Jennifer Anne Harper (sued in her own capacity and as executrix of the estate of Bernard Alfred Harper;
deceased) v Timothy Theseira [2009] 7 MLJ 711 a similar argument was raised and in dismissing it, the
learned judge held as follows:

... In the case of Morley v Moore [1936] 2 KB 359 the Court of Appeal held that the plaintiff therein was
entitled to claim for the whole amount of damages notwithstanding that a portion thereof had been settled by
the plaintiffs insurers and notwithstanding the fact that the insurer had requested the plaintiff not to institute
proceedings against the defendant for the recovery of such portion of damages settled by the insurers. The
court further held that the plaintiff would hold the amount to the extent of the sum received from the insurers
as trustee for them, they being subrogated to his rights.

Therefore, the issue of subrogation is one between the insurer and insured. If indeed the insured had subrogated
his rights, then any money he receives from the tortfeasor would be held on trust for the insurer. That, however,
does not mean that the insured would be deprived from ever making a claim against the tortfeasor for medical
expenses arising from the tortfeasor’s wrongdoing and paid by the insurer.

Pre-action and Pre-trial Special Damages

[32]In light of the above, I allowed the Plaintiff’s special damages claim of:
i. RM50,486.63 for hospital and medical expenses, and the sum of RM8,276.80 for travel expenses for the
pre-action period; and
ii. RM47,175.31 for hospital and medical expenses, RM3,200.00 for chiropractic treatment and RM7,761.00
as loss of earnings for the pre-trial period;

as they were in large measure supported by bills and receipts. As for the portion of the claim that was unsupported
by documents, I found the oral evidence of the Plaintiff and his witnesses compelling and these claims are
reasonable to have been incurred. In Kasirin Kasmani v The Official Administrator & Anor [1991] 2 CLJ (Rep) 800,
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Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

the court allowed travelling and living expenses incurred by the plaintiff’s wife in traveling from her home to the
hospital where the plaintiff was admitted, although no receipts were produced.

Post Judgment Decision of the Federal Court

[33]After delivery of judgment, the Federal Court in Dr Kok Choong Seng & Anor v Soo Chen Lin (and Another
Appeal) [2017] 6 AMR 609 had reaffirmed the decision of the Court of Appeal in Soo Cheng Lin v Dr Kok Choong
Seng & Anor and Another Appeal, Therefore, the law is now settled in that, notwithstanding that the insurer paid for
the Plaintiff’s medical expenses, the Plaintiff still retains the right to claim the same from the 1st Defendant as
special damages, both in common law and under s 28A(1 )(a) of the Civil Law Act 1956.

General DamagesLoss of Earning Capacity

[34]Damages for loss of earning capacity is awarded where the claimant’s earning capacity is diminished by the
injuries suffered. In Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] CLJ (Rep) 419. Syed Akil Barakbah
SCJ, explained the test for awarding loss of earning capacity as follows:

... the proper test to be applied is whether some time in the future, due to the effect of the injuries sustained by him, the
plaintiff will face substantial risk of either losing his job or getting a less paid employment. It does not matter whether the
plaintiff was in employment or not at the time of the trial so long as Court is satisfied from evidence that there is a real or
substantial risk that his earning capacity will be affected in the future....

And prior to that the Federal Court in Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30 held in respect of
awarding damages for loss of earning capacity that:

... It arises where there is a residual risk that the plaintiff might be thrown out of work altogether at some future date. The
risk must be real and not speculative or fanciful.

Similarly, in Sumarni v Vow Bing Kwong [2008] 1 MLJ 608, James Foong JCA (as he then was) had said at
paragraph 26 that:

From the above authorities, it is explicit that before an award of this nature can be entertained, there must be evidence to
show that the plaintiff will face a real or substantial risk in her earning capacity being affected in the future due to the
disability she sustained from the motor accident.

Thus, it is clear that an award for loss of earning capacity will depend on the severity of the injury and its
ramifications to a claimant’s ability to undertake the employment that he used to do before the injury.

[35]Learned counsel for the Plaintiff submits that the Plaintiff should be awarded the sum of RM250,000-00 as
general damages for the loss of earning capacity because the Plaintiff is no longer able to perform many of his
work-related tasks as a result of his injuries and that he is at substantial risk of being subjected to termination of
employment, or at the-very least being subjected to accepting a lower salary and on less favourable employment
terms (i.e. on a contractual basis). Learned counsel further submits that given his debilitating injuries, and the
vagaries of the job market owing to the current economic situation, the Plaintiff is unlikely to find employment with a
salary and benefits commensurate with his current earnings, in the event his current employment is terminated.

[36]On the other hand, learned counsel for the 1st Defendant submits that the Plaintiff should not be awarded any
damages loss of earning capacity for the following reasons:
i. there is no evidence of any loss of his capacity to earn;
ii. there is no evidence of any “residual risk that the Plaintiff might be thrown out of work altogether at some
future date”;
iii. the Plaintiff failed to mitigate his losses and significantly contributed to his current complaints by (a)
following the Surgery, refusing to undergo any remedial surgery and (b) refusing to enroll into a pain
management programme to address his chronic pain; and
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Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

iv. there is unchallenged expert testimony from Dr Cardosa (DW3) that the Plaintiff’s chronic pain is likely to
be controlled in the event he underwent a pain management programme.

[37]Having considered the arguments of both counsel, 1 am in agreement with learned counsel for the 1st
Defendant, in that there is no compelling evidence showing that the Plaintiff is at any residual risk of being thrown
out of work altogether at some future date. In fact, the evidence adduced showed that the Plaintiff’s employer had
been very accommodating and had allowed the Plaintiff to carry on in his employment without any demotion. There
is no evidence that the Plaintiff is in any danger of losing his earning capacity.

Pain Management Programme

[38]It is common ground between the Plaintiff’s experts (Professor Ramani and Dr izmi) and the 1st Defendant’s
expert (Dr Cardosa) that the Plaintiff would benefit from undergoing a pain management programme in view of his
chronic pain. A pain management program is a holistic mufti-disciplinary program to help patients with chronic pain
manage and cope with their pain. Patients in such a program would be evaluated by a multi-disciplinary team
consisting of pain specialists, clinical psychologists, physiotherapists, occupational therapists and social workers,
amongst others.

[39]The evidence is clear that there is a need for the Plaintiff to undergo a pain management programme. The
Plaintiff claims the sum of RM38,911.00 to eroff in such a programme in Singapore. However, the same programme
is available at Seiayang Hospital, Kuala Lumpur, at a cost of RM1,200.00 (RM800.00 for the course plus RM400.00
for travel). I am in agreement with submissions of counsel for the 1st Defendant that a one off enrollment in the pain
management programme in Selayang Hospital is reasonable for the following reasons:
i. the pain management programme at Selayang Hospital is the most comprehensive programme in
Malaysia;
ii. it is not challenged that the pain management programme at Selayang Hospital is on par with pain
management programmes in other countries such as Singapore;
iii. Dr Cardosa (DW3) testified that the team from Singapore came to learn from the Fain Medicine
Subspecialty at Selayang Hospital; and
iv. the pain management programme at Selayang Hospital is conducted over a period of only 2 weeks (with
the weekends off) which will enable the Plaintiff to spend the weekends with his family and with minimal
travel.

Hence, I allowed the sum of RM1,200.00 for the pain management programme.

Cost of Future surgery (Cervical Spine)

[40]It is common ground between the Plaintiff’s expert (Dr Dhiilon) and the 1st Defendant’s expert (Dr Johari) that
there is a significant possibility of the Plaintiff requiring some form of surgical intervention in his cervical spine in the
future as a result of his current condition. Dr KS Dhiilon (PW6), the Plaintiff’s expert, testified that the cost of
undergoing a surgery on the cervical spine at a private hospital is approximately RM15,000.00 to RM20,000.00.
Thus, the Plaintiff claims the sum of RM20,000.00 for the costs of future cervical spine surgery.

[41]In Inas Faiqah binti Mohd Helmi v Government of Malaysis & 2 Ors [2016] 2 MLJ 1, the Federal Court awarded
one-third of the amount claimed by the appellant in respect of the cost of future medical treatment at a private
hospital on the basis that it was “fair and reasonable” to do so. Thus, taking this formula, I have awarded
RM14.000.00 as cost of future cervical spine surgery.

Pain and suffering and loss of amenities of life - future cervical spine surgery

[42]Plaintiff is likely to experience some amount of pain and suffering for the future cervical spine surgery and the
rehabilitation treatment and therapy that he will require after such surgery. The Plaintiff claims the sum of
RM30,000.00. I awarded the sum of RM25.000.00 under this head of general damages as being fair and
reasonable and in keeping with the trend of awards for damages of this nature.

Cost of equipment, future consultations and rehabilitation therapy

[43]In his expert report, in order to address the Plaintiff’s current medical condition, the Plaintiff’s rehabilitation
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Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

expert Dr Izmi (PW7) had recommended various types of equipment, rehabilitation treatment and professional
consultations as part of the Plaintiff’s future care regime. The total sum claimed by the Plaintiff under this head is
RM99,115.00. However, after having considered each and every item of claim under this head of damages, I
disaifowed two of them, i.e. the cost of the cervical traction device at RM30,150.00 and also the TENS device at
RM1,300.00. The remaining items of claim under cost of equipment, future consultations and rehabilitation therapy
was allowed totaling the sum of RM67.665.00, as there was no credible challenge to these by [earned counsel for
the 1st Defendant.

General Damages for Pain and Suffering and Loss of Amenities of Life

[44]The Plaintiff claims the sum of RM220.000.00 for pain, suffering and loss of amenities, comprising:
i. for injury to the vocal cord and its sequelae RM30,000-00
ii. for scarring from the operation RM15,000-00
iii. for injury to the cervical spine and its sequelae arising from the Surgery RM175,000-00

Total

RM220,000-00

There are not many decisions on the quantum of awards for pain and suffering and loss of amenities of life for the
type of injuries suffered by the Plaintiff, and I agree with submissions of [earned counsel for the 1st Defendant that
none of the case authorities referred to by learned counsel for the Plaintiff are in relation to surgery conducted on
the cervical spine.

[45]However, the following cases may be useful guide in deciding this issue. In Chai Beng Hock vs Sabah Medical
Centre Sdn Bhd & 2 Ors [2011] 2 AMR 741, Rahman Sebli J (as he then was) awarded the sum of RM250,000-00
for pain and suffering and loss of amenities of life for a total knee replacement surgery that was negligently
performed, which led to the plaintiff suffering frequent pain at his knee. In Mohd Fared bin Ishak v Dato Dr Abdul
Kadir Mohd Salleeh & Anor , Johor Babru High Court Civil Suit No. MT4-22-203-2009, Teo Say Eng JC (as he then
was) awarded the sum of RM 120,000-00 for pain and suffering and loss of amenities of fife for injuries to the bile
duct and blood vessel which led to prolonged hospitalisation. In Ramanaidu a/l C Simansalon v Government of
Malaysia and 6 Others [2011] MLJU 1199], Vernon Ong J (as he then was) awarded the sum of RM 100,000-00 as
pain and suffering and loss of amenities of fife for a negligently performed total knee replacement operation which
caused functional disability and pain to the plaintiff. In Yap Kim Hock v 0810* Dr K Selva Kumar and Anor , Kuala
Lumpur Civil Appeal No. 12B-858-10/2011, Abang Iskandar J (as he then was) increased the award of pain and
suffering and loss of amenities of life from the sum of RM60.000-00 to the sum of RM110,000-00 for a negligently
performed hip replacement operation which required remedial operations.

[46]The injuries suffered by the Plaintiff appears to be serious, considering that his condition has continued to
worsen from the time of the Surgery. This is evidenced by the fact that the Plaintiff has required frequent hospital
admissions and the fact that he has developed debilitating chronic pain since the time of the Surgery in December
2011.

[47]The Surgery was unnecessary and not indicated according to the Plaintiff’s expert witness Dr Dhillon. And as a
result of this avoidable surgery, he is left with a permanent scar of 7.5cm on his neck. The injuries suffered by the
Plaintiff have caused him to suffer chronic pain in the neck, upper back and right arm. The injury to his vocal cord
has also left him unable to speak for prolonged periods and has resulted in him suffering from intermittent choking
sensation.

[48]I agree with submissions of learned counsel for the Plaintiff that these injuries are highly debilitating and have
affected the Plaintiff’s quality of life. The chronic pain he suffers is very much a daily feature of his life. He is unable
to perform various work-related tasks which he was able to do in the past and he is unable to drive for long
distances. His personal and family life too has suffered setbacks.

[49]The Plaintiff’s pain and suffering has been aggravated by the lack of candour on the part of the 1st Defendant in
failing to inform him during his follow-up consultations that he, the 1st Defendant, had performed the operation at the
wrong level, Instead, the Plaintiff had to find out from Dr Ahmad Khan that the operation had been performed at the
wrong level The Plaintiff’s testimony in this regard was not challenged.
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Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443

[50]In the circumstances, I find that the sum of RM130,000-00 would be a reasonable sum as general damages for
pain and suffering and loss of amenities of life, including for the rest of his life. The damages for pain and suffering
and loss of amenities of life can be sub-divided as follows:
i. for injury to the vocal cord and its sequelae; RM15,000-00
ii. for scarring from the operation; RM15,000-00
iii. for injury to the cervical spine, and its sequelae arising from the Surgery RM100/000-00

Total

RM130,000-00

Cost

[51]Learned counsel for the Plaintiff submitted that cost for getting up be fixed at RM250.000.00, i.e. the sum of
RM120.000.00 as cost for proceedings in respect of liability and the sum of RM130,000.00 as cost for proceedings
in respect of quantum of damages. Counsel for the Plaintiff further submitted that it is a well-recognised fact that
medical negligence litigation is very expensive. I agree that legal costs in a medical negligence claim can be
considerable compared to the value of the claim. Medical negligence litigation is difficult, complex, time-consuming
and often involves novel questions of law and fact.

[52]Although liability was conceded by the 1st Defendant just before commencement of trial, learned counsel for the
Plaintiff submits that the Plaintiff is nevertheless entitled to getting up fees on the issue of liability as the Plaintiff’s
solicitors had undertaken substantial preparation for a trial on liability, including instructing Dr Dhillon (PW6), the
Plaintiff’s expert on liability. Dr Dhillon’s expert report on liability was finalised on 14,9.2015. The Plaintiff’s solicitors
had to analyse Dr Dhillon’s report in detail and review it against the Plaintiff’s medical records and reports. The 1st
Defendant had admitted liability only on 1,10.2015, well after Dr Dhillon had prepared his expert report, and on the
very morning of the trial’s commencement. The Plaintiff’s solicitors had therefore undertaken sufficient getting up to
be ready for a trial on liability. Thus, I find that it is only reasonable that the Plaintiff is awarded getting-up fee for the
preparations made by his solicitors in respect of trial on liability.

[53]In respect of cost for the proceedings on the award of damages and its quantum, the trial went on for 5 days.
There were a total of 14 witnesses, including expert witnesses, namely consultant orthopaedic surgeon, Dr Kuldeep
Singh Dhillon (PW6), consultant rehabilitation physician Dr Mohd Izmi bin Ahmad (PW7), consultant
anaesthesiologist and pain management specialist Professor Ramani Vijayan (PW8), consultant neurosurgeon Dr
Johari Siregar bin Adnan (DW2), and consultant anaesthesiologist and pain management specialist Dr Mary Suma
Cardosa (DW3). Expert and factual evidence was led as regards the condition and prognosis of the Plaintiff’s
injuries and his future care and needs.

[54]The following decided cases may be of assistance to the court in fixing the cost for the proceedings on
damages. In Thivy a Ruban s/o Thyagarajan v Government of Malaysia in Shah Alam High Court Suit No. 21-170-
2005 (Unreported), Hadhariah binti Syed Ismail J allowed to the sum of RM100,000.00 as getting up fee for the
quantum proceedings. In Hariesh Kumar s/o Muthragi v. Kerajaan Malaysia & Ors in the Johor Bahru High Court
(Unreported), Abdul Rahman Sebli J (as he then was) awarded the sum of RM120,000-00 as getting up fee for the
assessment of damages proceedings that took 5 days to complete. In Nurul Husna Muhammad Hafiz & Anor v
Kerajaan Malaysia & Ors [2015] 1 CLJ 825, I had awarded the sum of RM200,000-00 as getting up fee for both the
liability and quantum proceedings and allowed in full the out-of-pocket expenses. In that case the defendants
admitted liability before trial and the quantum proceedings took 3 days to complete.

[53]Having considered the submissions of counsel and having had regard to peculiar facts of the case and its
complexity and time taken, I awarded the sum of RM200,000.00 as cost for both liability and quantum. The out-of-
pocket expenses are to be assessed and fixed by the Deputy Registrar.

Interest

[54]As for interest, I ordered that the 1st Defendant pay interest on the judgment sum and cost as follows:
i. on special damages at 4% per annum from 8.12.2011 till date of judgment (1.8.2017);
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ii. on general damages at 4% per annum-from date of service of Writ (23.12.2014) till date of judgment
(1.8.2017);
iii. on pre-trial damages at 4% per annum from date of service of Writ (23.12.2014) till date of judgment
(1.8.2017);
iv. on the judgment sum, including cost at 5% per annum from date of judgment (1.8.2017) till date of full
settlement.

Orders accordingly.

End of Document