Kerajaan Malaysia & Ors v Norfazlin Binti Zamani (CA)
Medical law – Medical negligence – Quantum of damages – Award of aggravated damages
The key issues in the case of Kerajaan Malaysia & Ors v Norfazlin Binti Zamani (Civil Appeal No.: B-01(NCVC)(W)-556-08/2022) is whether the quantum of damages awarded by the trial judge is fair and reasonable.
Background Facts
The material facts are as follows:
a) The Respondent, a sole doctor running her aesthetic clinic, underwent an emergency caesarean section when her baby had shown signs of foetal distress on 28.8.2016;
b) Khor Xin Yun, a medical officer of two years experience, performed the operation but negligently caused lacerations to the Respondent’s bladder;
c) On 30.8.2016, her bladder injury was finally detected and laparotomy was carried out the next day – the contaminated urine that leaked to the peritoneal cavity over two days caused an inflammation;
d) On 8.9.2016, during a bedside procedure to remove the portex drain, it snapped leaving a 14cm portion of the drain in the Respondent’s abdomen and she had to undergo a relaparotomy to remove the portex drain;
e) The mental strain of her pain and suffering manifested itself soon after;
f) She required 3 months of convalescence during which she was unable to work;
g) During her unexpected pregnancy in 2018, she developed severe antenatal anxiety disorder;
h) The doctors attending to the Respondent managed to stop the Respondent from terminating the pregnancy or causing harm to the baby but was not able to convince her to undergo a bilateral salpingectomy (removal of both the fallopian tubes) to avoid getting pregnant again and repetition of the trauma that she had suffered;
i) She eventually made good recovery from her psychiatric injuries and filed her claims against the Appellant;
j) Liability was admitted by the 1st Appellant after the trial has commenced and after the Respondent’s expert witness provided his evidence. On the same day, the Respondent withdrew her claims against the 2nd to the 20th Appellants;
k) The Appellants have appealed against the whole of the decision on quantum;
l) However, the memorandum of appeal only addresses the following three items:
- General damages for pain and suffering and loss of amenities of life in the sum of RM260,000.00;
- Aggravated damages in the sum of RM150,000.00; and
- Costs in the sum of RM150,000.00.
The law on appellate intervention
An appellate court will not interfere in the trial judge’s exercise in an appeal on damages unless it is satisfied that the judge had erred in principle or had made a wholly erroneous estimate of the damages suffered (see Tan Cheong Poh & Anor v Teoh Ah Keow [1995] 3 MLJ 89).
Pain and suffering
On this point, the Court of Appeal found that the Respondent had to undergo three surgeries after the negligent act and as such affirms the sum of RM260,000.00 given by the Learned Judge. The Court of Appeal was guided by the case of Sheela Christina Nair v Regency Specialist Hospital Sdn Bhd & Ors [2016] 9 CLJ 267 in which the Plaintiff who suffered perforation of her small intestines which required several operations and prolonged period of convalescence was awarded RM240,000.00 (see also Hasniyati binti Hassan & Anor v Kerajaan Malaysia [2022] MLJU 376 in which the Plaintiff who lost her reproductive organs due to a complication during delivery was awarded RM300,000.00)
Aggravated Damages
On this point, the Respondent’s counsel cited the Federal Court case of Dr. Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim & Anor and Another Appeal [2018] 3 CLJ 427, in which the plaintiff suffered injuries and loss of vision on his right eye caused by the negligence of Dr. Hari Krishnan and Dr. Namazie as servant and agent of the hospital and a sum of RM1 million was awarded as aggravated damages.
In the present appeal, the bad conduct was attributed to the delay in dealing with the Respondent’s complaints and delay in admitting liability. Since it is a public hospital catering to public needs and public interests, it cannot be said that there was exceptional and contumelious conduct in committing the wrong. Also, there was no physical injury to the Plaintiff as per the Dr. Hari’s case. As such, the Court of Appeal reduced the award from RM150,000.00 to RM80,000.00.
Getting up fee and out of pocket expenses
On this point, the Respondent claimed for getting up fees of RM200,000 and out of pocket expenses of RM13,175.15. The Appellants argued that the case only proceeded on the issue of damages since liability was admitted. However, the Court of Appeal took cognisance of the fact that the trial on liability had started and the Respondent’s solicitors had procured all the relevant expert witness (see Lee Bang v Nadzri [1965] 2 MLJ 186). As such, the decision of the Learned Judge is affirmed.
Appeal allowed with costs of RM15,000.00 to the Respondent.
Written by
Sandhya Saravanan
Member, Publications Committee
Credit: This case note was also published in the Highlights of the Appellate Court by the Publications Committee of the Malaysian Bar (2024/2025).