In the recent case of Nur Arissa Naura bt Noor Affrizal & Anor v Dr Abirami Kunaseelan & Ors [2023] 5 CLJ 793, a consent judgment was recorded where the Government of Malaysia admitted liability with damages and costs to be assessed by the Court. After assessment of damages, the High Court awarded damages of approximately RM8 million, together with interests and costs. This is one of the highest quantum of damages awarded by the Malaysian Courts in a medical negligence case.
 
BRIEF FACTS
 
It was originally intended for the second plaintiff, who had a history of high-risk pregnancies, to have an emergency lower section caesarean section on 18 March 2019 to deliver the first plaintiff. By 8.00 p.m. on 17 March 2019, the first plaintiff in utero showed signs and symptoms of bradycardia. Despite detecting this, a delayed decision was only made at 9.20 p.m. for the second plaintiff to undergo an emergency caesarean. Further delay followed before the first plaintiff was delivered at 10.14 p.m.
 
The first plaintiff suffered spastic quadriplegic cerebral palsy secondary to hypoxic-ischemic encephalopathy with a developmental milestone of less than three months old as a result of negligence due to the various delays.
 
The first plaintiff, now aged four: 

Hence, the plaintiffs commenced a suit, at the High Court, against the Government of Malaysia and the medical officers and staff of Hospital Selayang. The claim against the medical officers and staff of Hospital Selayang was withdrawn after the Government of Malaysia admitted liability.
 
RELIEFS SOUGHT BY THE PLAINTIFFS
 
The plaintiffs claimed for, inter alia: 

THE DECISION OF THE HIGH COURT
 
The main categories of damages awarded by the Courts in a medical negligence case are typically, special damages, general damages, and aggravated damages. We shall consider the High Court’s decision for each category of damages.
 
Special damages
 
Special damages are the actual expenses incurred by the plaintiffs which must be pleaded with particularity. Notwithstanding that the receipts in this case for expenses were not in order, the High Court awarded a total amount of RM209,172 of special damages to the plaintiffs. The High Court viewed that given the circumstances, the plaintiffs were not expected to be able to produce every single receipt. At the same time, the High Court was satisfied that such costs were incurred to care for the first plaintiff and provided for by the second plaintiff and her husband.
 
General damages
 
General damages are awarded for losses suffered as a direct natural or probable consequence of the negligence. The High Court awarded RM500,000 for pain and suffering and loss of amenities of life to the first plaintiff as well as RM114,000 to the second plaintiff which includes the cost of future psychiatric treatments to improve her symptoms and minimise the impact of depression in her daily life. In terms of future general damages, the High Court awarded RM6,954,156 to the first plaintiff.
 
Aggravated damages
 
Aggravated damages are additional compensation awarded for injury to the plaintiffs’ feelings and dignity when there are aggravating circumstances that result in the plaintiffs not receiving sufficient compensation. The High Court awarded RM350,000 to the plaintiffs. The aggravating factors in this case are the issue of delay featured from the point where the second plaintiff needed urgent medical attention, to the admission of liability when knowledge on the part of the defendant was apparent pursuant to the conclusion of the internal findings, to the provision of medical records for discovery, and the way assessment for damages was conducted.
 
COMMENTS
 
There are two notable awards in Nur Arissa’s Case. The first is the sum of RM350,000 as aggravated damages. Looking at the present trend of awards, the aggravated damages awarded in this case is higher than the average sum awarded by the trial courts in medical negligence cases.
 
In Suzilawati bt Ali (suing in her personal capacity, as lawful mother and dependant for Child A, a minor (deceased)) & Anor v Dr Alif Al Ain bin Mohd Fathilah & Ors [2023] 8 MLJ 110, the High Court only awarded RM100,000 as aggravated damages for the 5-year-old child who passed away due to the negligence and/or breach of contractual duty of the defendants in failing to use reasonable care and skill in the diagnosis, management, care and treatment of the child’s illness while he was under their care and in failing to properly advice the plaintiffs as to what plan of action was best for the child.
 
Whereas in Irwanbudiana bin Amsah (suing as the administrator of the estate of Child M, deceased) v The Government of Malaysia [2023] 10 MLJ 633, the High Court awarded RM300,000 as aggravated damages for the 5-year-old child who passed away due to severe brain damage (cerebral palsy) after his delivery. In Yap Sao Leong & Anor (both suing as administrators to the estate of Yap Yi Hong, deceased) v Kerajaan Malaysia & Ors [2021] MLJU 86, the High Court also awarded RM300,000 as aggravated damages for the 2-year-old child who passed away due to aspiration pneumonia with underlying cerebral palsy.
 
The second notable award is the sum of approximately RM7 million as future general damages awarded to the first plaintiff. It is important to first understand that unlike in England where damages may be assessed periodically following judgment on liability, in Malaysia future general damages are assessed on a once-and-for-all basis to cover the costs of the patient’s needs for the remainder of his life (see Nurul Husna binti Muhammad Hafiz & Anor v the Government of Malaysia & Ors [2015] 1 CLJ 825, High Court.)
 
The High Court in Nur Arissa’s Case had listed in detail the heads of future general damages which could be granted in a medical negligence case, namely: 

It is interesting to note that in arriving at the sum of RM7 million as future general damages, the High Court in Nur Arissa’s Case took the life expectancy of 44 years old for the first plaintiff and minus her current age of 4 years to come to the multiplier of 40 years. The High Court did not follow the one-third rule which is to deduct one-third from the multiplier for contingencies as a matter of normal and recognised approach originating from common law. Instead, the High Court relied on the recent Court of Appeal decision of Pantai Medical Centre Sdn Bhd v Fareed Reezal bin Arund (suing through his wife and litigation representative Wan Zafura bt Wan Kassim) and another appeal [2022] 4 MLJ 529 which held as follows:
That said, the High Court in Nur Arissa’s Case had come to a whopping sum of approximately RM8 million damages against the defendant.
 
Nur Arissa’s Case is pending appeal in the Court of Appeal.¹ It will be interesting to see whether the appellate court will view the damages awarded by the High Court, in particular the awards for aggravated damages and future general damages, as excessive or proportionate, given the injuries suffered by the first plaintiff, her relatively young age, the rising cost of medical care and the fact that future general damages are awarded on a once-and-for-all basis in Malaysia. The trend of awards in medical negligence cases is crucial as it serves as a guideline for future medical negligence cases when it comes to the quantum of damages, be it general damages or aggravated damages.
 
Case commentary by Loo Peh Fern (Partner) of the Dispute Resolution (Medical Negligence) Practice of Skrine.
 

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