L/Kpl Naraayanan Nair A/L Subramaniam 1. ) Kerajaan Malaysia 2. ) Pengarah Hospital Changkat Melintang 3. ) Pengarah Hospital Raja Permaisuri Bainun 4. ) Dr Mohamad Fuad Shah bin Mohd. Damanhuri Shah 5. ) Dr Kamarul Hatem bin Muhammad 6. )

AA-21NCvC-5-01/2021 Kand. 78 14/01/2025 11:34:04 5 IN THE HIGH COURT IN MALAYA AT IPOH IN THE STATE OF PERAK DARUL RIDZUAN SUIT NO. : AA-21NCVC-5-01/2021 BETWEEN 10 L/KPL NARAAYANAN NAIR A/L SUBRAMANIAM …PLAINTIFF [NRIC NO.: 940318-04-5285] AND 15 1. KERAJAAN MALAYSIA 2. PENGARAH HOSPITAL CHANGKAT MELINTANG 3. PENGARAH HOSPITAL RAJA PERMAISURI BAINUN 4. DR MOHAMAD FUAD SHAH BIN MOHD. DAMANHURI SHAH 5. DR KAMARUL HATEM BIN MUHAMMAD 20 6. DR RISHOTHARAN A/L M.R. MANIKEWASU 7. DR CHAN PEI FONG 8. DR RAJA NURUL AIN BINTI RAJA BADIUZZAMAN 9. DR MOHD ZAILANI BIN ABD SHARIFF 10. DR MOHAMMAD HISYAM BIN SIDIK 25 11. DR YAN YANG WAI …DEFENDANTS GROUNDS OF JUDGMENT Background [1]. The plaintiff, Naraayanan Nair a/l Subramaniam, suffered a severe injury resulting in the amputation of his left arm. The injury was 30 sustained during an incident on March 13, 2018. Subsequently, the plaintiff filed a claim for damages against the defendants, alleging 1 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal negligence and seeking compensation under various heads including general damages, special damages, aggravated damages, future general damages, costs, and interest. On 14 35 October 2021 liability was admitted by the 1st defendant (the Government of Malaysia), and the claim was discontinued against all other defendants. Witnesses [2]. For the Plaintiff: 40 a) Dr. Kavitha Uma Ratnalingam (PW1) - Consultant Rehabilitation Physician, expert witness on the quantum of damages. b) Puan Nadzirah Abdul Razak (PW2) - Certified Prosthetist and Orthotist (CPO), expert witness on the quantum of damages. 45 c) Mr. Ravi s/o Ayavoo (PW3) - The plaintiff’s uncle. d) The Plaintiff (PW4) - Naraayanan Nair a/l Subramaniam. [3]. For the 1st Defendant: a) Dr. Abdul Rahman bin Ab Hamid (DW1) - Rehabilitation 50 Physician, expert witness on the quantum of damages. Pain and Suffering and Loss of Amenities of Life [4]. The plaintiff seeks substantial general damages for pain and suffering and loss of amenities of life (PSLA), emphasising significant physical injuries, particularly the amputation of his left 2 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 arm, resulting in ongoing pain, loss of daily functions, and considerable mental distress from negligent treatment. The plaintiff references McGregor on Damages to support a compensation claim of RM300,000.00. Conversely, the 1st defendant proposes a lower compensation of RM100,000.00, citing the Revised Compendium of 60 Personal Injuries Award, which benchmarks RM71,500.00 to RM84,000.00 for similar injuries. The 1st defendant also points to an ex-gratia payment of RM100,000.00 received by the plaintiff, ongoing monthly aid, and precedent cases, such as Siti Nora Ashikin and Muhammad Zulkarnain, to argue that the current 65 compensation is adequate. While the plaintiff refers to the severe impact and ongoing distress, the 1st defendant suggests existing compensations mitigate the need for higher damages. General Damages: Pain and suffering and loss of amenities of life 70 [5]. The plaintiff’s submission on pain and suffering and loss of amenities of life illustrates the significant physical, emotional, and mental distress endured due to the amputation of his left arm following medical negligence. The plaintiff experiences ongoing stump pain, phantom sensations, and severe emotional distress, 75 including the impact on his career, social life, and daily activities. His evidence, supported by expert witnesses, highlights that these effects have significantly diminished his quality of life. [6]. In contrast, the 1st defendant proposes an award of RM100,000, relying on the "Compendium of Personal Injuries Award 2018," 3 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 which suggests a range between RM71,500 and RM84,000 for a mid-upper arm amputation and cites cases like Siti Nora Ashikin bt Mohd Nawi lwn Mohd Badrul Hisham bin Mohd Yaacob dan satu lagi [2021] MLJU 1545; [2021] AMEJ 1304, where RM70,000 was awarded for a permanent left-hand paralysis. However, 85 considering precedents involving upper limb amputations, such as Noorasmawati bt Abu Othman v. Kerajaan Malaysia & Ors [2021] MLJU 2439; [2021] CLJU 2028, where a 40-year-old woman with an above-elbow amputation received RM260,000 and Hasniyati bt Hassan & Anor v Kerajaan Malaysia [2022] 10 MLJ 90 469; [2022] 7 CLJ 565; [2022] 3 AMR 726, where RM350,000 was awarded to a child for an upper limb auto-amputation, a sum of RM150,000 for the plaintiff’s case is reasonable and fair. This is because the plaintiff was young (24 years old at the time of the incident) with a promising career in the police force, suffered 95 ongoing severe pain and emotional trauma, and experienced additional surgeries. [7]. The 1st defendant’s proposed sum does not adequately account for the plaintiff's continued suffering, loss of lifestyle, and the lasting impact on his physical and mental health. Awarding RM150,000 100 aligns with the principles in the cited cases, recognising the severity and lifelong consequences of the plaintiff's injuries while being proportionate and reasonable. Aggravated Damages: [8]. The plaintiff’s submission on aggravated damages argues that the 105 negligent conduct of the defendants caused not just physical harm 4 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal but also emotional distress and psychological impact on the plaintiff’s dignity and well-being. The plaintiff endured a prolonged period of suffering, including delays in obtaining crucial medical treatment and a lack of empathy in the handling of his case, which 110 contributed to his mental anguish. Evidence presented shows that the plaintiff attempted to access his medical records, but the defendants initially refused to provide them, adding to his frustration and distress. Citing the Court of Appeal’s decision in Sambaga Valli a/p K.R. Ponnusamy v Datuk Bandar Kuala Lumpur & Ors 115 [2018] 1 MLJ 784; [2018] 3 MLRA 488; [2018] 4 AMR 745; [2017] CLJU 500 (refd), the plaintiff submits that aggravated damages are warranted when there is an intangible injury to the plaintiff's personality due to the defendants’ conduct. The plaintiff highlights that his sense of injury was exacerbated by the defendants’ failure 120 to act promptly and professionally, furthering his mental distress. Additionally, the defendants’ refusal to make a voluntary disclosure of medical records without a court order, despite established legal principles advocating for patient rights, serves as an aggravating factor. 125 [9]. The defendants, however, counter that aggravated damages are not warranted, arguing that the conduct involved in this case does not amount to exceptional or contumelious behaviour. The 1st defendant cites Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 CLJ 825; [2014] MLJU 1922; [2015] 1 MLRH 234; 130 [2015] 1 PIR 2, where despite the non-disclosure of medical records, the High Court did not award aggravated damages. The 1st defendant further submits that its admission of liability occurred within a reasonable timeframe and that the failure to disclose 5 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal records was neither intentional nor malicious, suggesting that the 135 plaintiff was adequately compensated through general and special damages. Additionally, the 1st defendant references Hasniyati bt Hassan v Kerajaan Malaysia (supra), where the court found no basis for aggravated damages due to the absence of elements like malice, insensitivity, or exceptional conduct. 140 [10]. However, the plaintiff's case stands on different grounds. Unlike Nurul Husna or Hasniyati (supra), the plaintiff here suffered an extraordinary level of distress resulting not just from the physical injury but also from the negligence in the treatment process and the defendants' conduct post-incident. The prolonged delay in medical 145 intervention, the plaintiff’s subsequent attempts to retrieve his medical records, and the defendants' refusal to voluntarily disclose these records contributed to his suffering. Furthermore, the plaintiff was not only denied prompt medical care but was subjected to a lack of transparency, which deepened his mental anguish and 150 eroded trust in the healthcare system. The plaintiff’s reliance on Sambaga Valli (supra) is pertinent as it emphasises that aggravated damages are meant to address the intangible injuries and aggravate the sense of loss caused by a defendants’ exceptional conduct. In Dr Hari Krishnan & Anor v Megat Noor 155 Ishak bin Megat Ibrahim & Anor [2018] 3 MLJ 281; [2018] 1 MLRA 535; [2018] 3 CLJ 427; [2018] 1 AMR 209 (refd), the Federal Court affirmed that aggravated damages are appropriate where the conduct of the defendant worsens the injury experienced by the plaintiff. The plaintiff’s sense of injury was undeniably 160 exacerbated by the lack of proper care, transparency, and the resulting distress. 6 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal [11]. Thus, awarding a sum of RM200,000 in aggravated damages is reasonable given the unique factors in this case. The plaintiff endured a compounded sense of suffering due to the negligent 165 actions and omissions of the defendants. This award would serve not only to compensate the plaintiff for the intangible injuries he suffered but also to acknowledge the impact of the defendants' conduct on his dignity and mental health. In light of Sambaga Valli (supra) and Dr Hari Krishnan (supra), the plaintiff's experience 170 aligns with scenarios where courts have found it just to award aggravated damages. Therefore, the proposed sum of RM200,000 is justified, as it appropriately reflects the seriousness of the defendants’ actions and their consequences on the plaintiff’s life. Special Damages: 175 [12]. The principles of special damages require the plaintiff to prove actual pecuniary loss incurred due to the defendants’ actions. However, the courts recognise that plaintiff is not expected to keep detailed records of every expense. Both documentary and oral evidence can be used to substantiate these claims, as outlined in 180 Section 3 of the Evidence Act 1950. In Rohgetana a/p Mayathevan v Dr Navin Kumar & Ors [2017] 4 MLJ 102; [2017] 3 MLRA 53; [2017] 3 CLJ 311, the Court of Appeal affirmed that special damages, once pleaded and particularised, can be proven by oral or documentary evidence, as long as the sums claimed are 185 reasonable and justifiable. This principle was further reinforced in Nurul Husna (supra), where the court acknowledged that the absence of receipts does not necessarily negate a claim for special damages. 7 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal [13]. Furthermore, the courts emphasise the importance of 190 reasonableness in assessing the amounts claimed. For instance, expenses such as travel costs, medical supplies, or care provided by family members can be awarded based on credible testimony alone if the sums claimed are within reasonable limits. The absence of challenge by the 1st defendant to the plaintiff's oral evidence is 195 determinative, allowing the court to accept the claims as truthful; Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395, [1995] 2 MLRA 432; [1996] 4 CLJ 545; [1996] 3 AMR 3506. Therefore, the 1st defendant's mere objection based on the lack of receipts, without questioning the credibility of the plaintiff’s 200 testimony, is insufficient to disallow a claim for special damages. Hence, as long as the plaintiff provides credible evidence, the claim should be awarded in full. Hospital and medical expenses [14]. The plaintiff claims RM1,185.00 for hospital and medical expenses, 205 which includes costs incurred at various stages of treatment. The plaintiff argues that these expenses are recoverable if substantiated with receipts or credible testimony. The 1st defendant disputes the claim due to a lack of documentary evidence. However, in Qi Qiaoxian and Anor v Sunway Putra Hotel Sdn Bhd, Court of 210 Appeal Civil Appeal No. W-04(NCVC)(W)-330-07/2022 held that special damages can be awarded based on credible testimony alone. If the plaintiff provides evidence, such as receipts or oral testimony, the full sum of RM1,185.00 should be awarded. 8 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal 215 Travelling and accommodation expenses [15]. The plaintiff claims travelling and accommodation expenses, including trips to hospitals and clinics, calculated based on mileage incurred during treatment. The 1st defendant disputes the claim due to the absence of receipts. However, under Qi Qiaoxian v Sunway 220 Putra Hotel Sdn Bhd (supra), the Court of Appeal held that special damages could be awarded based solely on credible oral testimony. The plaintiff's detailed account of the trips and the reasonable sums claimed provides sufficient proof. Therefore, a fair award of RM3,000 for travelling and accommodation expenses should be 225 granted, recognising the practical difficulties in retaining every receipt. Value of care by family members [16]. The plaintiff claims for the "value of care by family members" at RM18,000 (quantified based on commercial caregiver rates). The 230 1st defendant disputes this, arguing that the plaintiff was not bedridden and could care for himself. However, the plaintiff has shown that he required extensive assistance during the initial six months post-amputation, including daily activities like dressing, toileting, and cleaning. In Nurul Husna Muhammad Hafiz & Anor 235 v Kerajaan Malaysia & Ors (supra), the High Court recognised that special damages for care provided by family members could be compensated even without precise receipts. Thus, given the extensive nature of care, a reasonable award of RM6,000 is justified. 240 9 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal Cost of vitamins, nutritional supplements, and extra-nourishing food [17]. The plaintiff claims the cost of vitamins, nutritional supplements, and extra-nourishing food, essential for recovery post-amputation. The 1st defendant disputes this due to the lack of receipts and medical 245 prescriptions. However, in Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors (supra), the High Court awarded damages for similar costs, recognising that such expenses are common and reasonable for recovery, even without strict documentary evidence. Given the plaintiff's situation and recovery 250 needs, a reasonable sum of RM1,000 should be awarded for these costs. Cost of medical equipment and supplies [18]. The plaintiff claims RM581.50 for the cost of medical equipment and supplies, substantiated with receipts. The 1st defendant challenges 255 this claim, focusing on the necessity and reasonableness of these expenses. However, in Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors (supra), the High Court recognised that special damages for actual out-of-pocket expenses should be awarded when supported by receipts. Therefore, since the plaintiff 260 has provided the necessary documentation, the full sum of RM581.50 should be granted. Deposit and instalment payments for Perodua Myvi vehicle [19]. The plaintiff claims deposit and instalment payments for the Perodua Myvi vehicle, arguing that it was essential for mobility post- 265 amputation. The 1st defendant disputes this claim, suggesting that 10 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal the purchase occurred two years after the injury and that the plaintiff could have opted for a more affordable, disabled-friendly motorcycle. However, the plaintiff provided evidence showing that the vehicle was necessary for his day-to-day activities and to 270 accommodate his disability. In Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors (supra), the High Court acknowledged that expenses for mobility and transportation post- injury are recoverable as special damages if necessary and reasonable. The plaintiff's evidence indicates that the Myvi vehicle 275 was used primarily to meet his mobility needs, not for luxury or profit. Therefore, based on the necessity of maintaining his independence and daily activities, the plaintiff should be awarded this claim, taking into account reasonable costs RM5,035.70 (downpayment) + [RM611.00 x 5 (instalment payment for 5 months)] = RM8,090.70. 280 Laundrette charges [20]. The plaintiff claims laundrette charges due to his inability to manage personal laundry post-amputation. The 1st defendant disputes this claim, arguing the lack of specific receipts. However, in Qi Qiaoxian v Sunway Putra Hotel Sdn Bhd (supra), the Court of Appeal held 285 that special damages could be awarded based on credible oral testimony, even without documentary evidence. Given the plaintiff's limitations during recovery and the reasonable nature of the claim, a sum of RM400.00 for laundrette charges should be awarded. 290 11 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal Cost of obtaining a medical report [21]. The plaintiff’s claim for this expenses is allowed as receipts are provided for the sum of RM164.80. Costs of obtaining pre-action discovery of medical records 295 [22]. The plaintiff claims costs for obtaining pre-action discovery of medical records. The 1st defendant disputes this claim. However, in Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors (supra), the court affirmed that such costs are recoverable when necessary to pursue the claim. Therefore, the plaintiff is 300 awarded the sum of RM6,459.50, which was offered by the 1st defendant and is deemed reasonable. Pre-trial Damages [23]. The plaintiff claims pre-trial instalment payments for a Perodua Myvi vehicle, arguing it was necessary for daily mobility post-amputation. 305 The 1st defendant disputes this, suggesting the purchase was unnecessary and could have been replaced by a more affordable mode of transport. However, the plaintiff's evidence shows that the car was essential to accommodate his disability. In Qi Qiaoxian v Sunway Putra Hotel Sdn Bhd (supra), the Court of Appeal 310 affirmed that credible oral testimony could support such claims for special damages. Thus, the sum for the vehicle's pre-trial instalment payments should be reasonably awarded based on the plaintiff’s needs. 12 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal [24]. The plaintiff claims pre-trial instalment payments for a Perodua Myvi 315 vehicle are necessary for mobility post-amputation. The 1st defendant disputes this, suggesting the purchase was unnecessary and could have been replaced by a more affordable mode of transport. By reference to the hire purchase agreement, the plaintiff is to pay 108 instalments of RM611.00 per month. Citing Qi 320 Qiaoxian v Sunway Putra Hotel Sdn Bhd (supra), where credible oral testimony supported special damages, a sum which is a round figure of RM24,000.00 should be awarded based on this necessity. Future General Damages [25]. The law on future general damages requires assessing a plaintiff's 325 future needs at the time of the judgment, as damages are awarded on a once-and-for-all basis. Courts must predict future needs without the possibility of reassessment, often resulting in either over-compensation or under-compensation. The benefit of the doubt should lean toward the plaintiff, the victim of the tort. Future 330 damages are based on a balance of probabilities but do not require the plaintiff to prove certainty of future loss; a substantial chance or possibility is sufficient. [26]. Future damages in personal injury cases can include costs for medical care, therapies, aid devices, and prostheses. The courts 335 focus on reasonableness, considering both public and private treatment rates. Courts are not bound to limit damages to government-provided healthcare; the plaintiff is entitled to opt for private treatment. In awarding future damages, courts also take into account life expectancy and apply a discount rate to avoid 13 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal 340 overcompensation, considering factors such as inflation and the plaintiff's ability to invest the lump-sum payment. [27]. The recent case of Pantai Medical Centre Sdn Bhd v Fareed Reezal Arund & Another Appeal [2022] 4 MLJ 529; [2022] 2 MLRA 592; [2022] 2 CLJ 173; [2022] 1 AMR 837 (refd) indicates 345 that the discount rate is not fixed, allowing flexibility in its application. A lower discount rate (e.g., 15%) is recommended in cases with a long-life expectancy, considering prevailing economic conditions. PROSTHESIS Plaintiff’s Submission 350 [28]. The plaintiff was presented with several prosthetic options for his upper limb amputation. These included a fully body-powered (mechanical) prosthesis, which uses the patient’s muscles to move the prosthetic components through a series of cables. Another option was a hybrid prosthesis, which consists of a mechanical 355 elbow paired with a myoelectric hand. This hybrid prosthesis uses electronic signals generated by the patient’s muscles to control the movement of the prosthetic hand. The most advanced option was a myoelectric-bionic prosthesis featuring both a myoelectric elbow and a bionic hand. This type of prosthesis offers more complex 360 functionality, including individual finger movements, providing the closest experience to a natural limb. [29]. Dr. Kavitha, the plaintiff’s rehabilitation expert, recommended a dual prosthesis approach. She advised the plaintiff to use a fully body- 14 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal powered prosthesis for situations that might expose the prosthesis 365 to elements like water or dirt, such as hiking. The mechanical prosthesis is durable and does not require the delicate handling for myoelectric components. For finer motor functions, such as those required in office settings, Dr. Kavitha recommended a hybrid prosthesis, specifically with a mechanical elbow and a myoelectric 370 or bionic hand. This recommendation was based on her assessment of the plaintiff’s daily activities and the need for functionality and durability in different scenarios. [30]. The recommended myoelectric prosthesis has both advantages and disadvantages. It allows for smoother and more natural movements 375 compared to a fully mechanical prosthesis and requires less physical effort. However, it demands significant training to use effectively, and it cannot be exposed to water or extreme environmental elements. Additionally, the myoelectric prosthesis comes with a higher cost. Despite these drawbacks, the bionic 380 components, especially the hand, can significantly improve the Plaintiff's ability to perform daily tasks. Dr. Kavitha emphasised the need for comprehensive training, which the plaintiff has expressed willingness to undergo. The cost considerations for acquiring the prosthesis include the initial purchase, potential repairs, and the 385 need for replacements every few years to maintain functionality. [31]. The plaintiff's prosthetic options come with varying costs, largely dependent on the complexity and type of the prosthesis. The fully body-powered (mechanical) prosthesis is estimated to cost around RM15,000, with a replacement rate every three years. This 390 prosthesis is more durable and suitable for physical activities but 15 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal offers limited functionality. Dr. Kavitha, the plaintiff's expert, recommended including this mechanical prosthesis in a dual approach because of its suitability for outdoor and rugged use. Given the once-and-for-all system of assessing damages, 395 Dr. Kavitha suggested adopting a three-year replacement cycle, resulting in an estimated lifetime cost of RM180,000 (including initial purchase and replacements over the plaintiff's estimated life expectancy). [32]. The myoelectric-bionic prosthesis offers advanced functionality with 400 a myoelectric elbow and bionic hand and comes at a significantly higher cost. The detailed breakdown provided by the plaintiff's prosthetic expert, Puan Nadzirah, estimated a lifetime cost of RM5,580,301.07 over a period of 44.7 years. However, considering the passage of time since the estimate was made, this amount was 405 revised to an average annual cost of RM124,838.95. With the proposed multiplier of 36 years, the estimated lifetime cost for the myoelectric-bionic prosthesis is approximately RM4,494,202.20. This cost includes the purchase, periodic replacements, and training required for the use of the advanced prosthetic components. 410 Dr. Kavitha and other experts agree that the higher cost is justified by the transformative impact the prosthesis would have on the plaintiff’s quality of life and functionality, particularly given his young age and long-term needs. Defendant’s Submission 415 [33]. The 1st defendant disagrees with the plaintiff's proposal for a myoelectric-bionic prosthesis, viewing it as an unnecessary and 16 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal excessive expense. They argue that the plaintiff is attempting to secure a more advanced and costly prosthetic device than what is reasonably required to address his functional needs. The 420 1st defendant emphasise that damages in personal injury cases are to provide fair compensation, not to enrich the plaintiff. They contend that the plaintiff should be restored to a condition closely resembling his state before the injury without resulting a financially advantageous outcome. 425 [34]. Furthermore, the 1st defendant argues that a mechanical prosthesis, which is less complex and more affordable than the myoelectric- bionic alternative, would suffice to address the plaintiff’s daily activities and mobility requirements. They question the necessity of the more sophisticated myoelectric-bionic components, suggesting 430 that the plaintiff can adapt to a simpler prosthetic. The 1st defendant also implies that the costs associated with training to use a myoelectric-bionic prosthesis, along with regular maintenance and replacements would be disproportionate. [35]. Further, the 1st defendant raises concerns about the plaintiff’s duty 435 to mitigate damages. They argue that the plaintiff should seek the most cost-effective solution that meets his basic needs rather than opting for an expensive option that exceeds what is reasonably necessary. By proposing a mechanical prosthesis as an alternative, the 1st defendant asserts that the plaintiff could achieve functional 440 restoration without imposing an excessive financial burden on the 1st defendant. 17 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal [36]. The 1st defendant further questions the plaintiff's interest and commitment to using a prosthesis, referencing his past behaviour. They note that the plaintiff did not demonstrate a keen interest in 445 utilising the previously provided prothesis, suggesting that his desire for a more sophisticated prosthetic might not align with his actual usage habits. The 1st defendant implies that providing a costly myoelectric-bionic prosthesis may not be practical if the plaintiff is not committed to using it regularly, raising concerns about whether 450 such an expense would be justified. [37]. Moreover, the 1st defendant argues that a myoelectric-bionic prosthesis comes with many limitations and restrictions that could impede its practicality. For example, they point out that the bionic hand is sensitive to environmental factors; it cannot be exposed to 455 water, fire, or extreme conditions, limiting its use in everyday activities. The 1st defendant suggests that, given these constraints, the mechanical prosthesis would be a more durable and functional choice for the plaintiff's lifestyle, particularly for activities where exposure to water or rugged environments is a possibility. This 460 reinforces their stance that the proposed myoelectric-bionic prosthesis is not a reasonable expense, as the more straightforward mechanical option would meet the plaintiff's needs without imposing an excessive financial burden. 465 18 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal Findings by the Court on Prosthesis Dual Prosthesis [38]. The necessity for dual prostheses, involving both a mechanical and 470 an electrically powered prosthesis, has been acknowledged by expert witnesses representing both the plaintiff and the 1st defendant. This agreement reflects a comprehensive approach to addressing the plaintiff's functional limitations following the amputation of his left upper limb. The mechanical prosthesis, often 475 lighter and more durable, serves as a reliable option for high- demand tasks, while the electrically powered prosthesis, equipped with advanced motorised functionality, ensures precision and enhanced mobility for intricate movements. Such a combination maximises the plaintiff’s ability to regain independence in daily 480 activities and aligns with rehabilitation goals that prioritise both utility and comfort. This dual prostheses approach was awarded in Hasniyati bt Hassan (supra), where the court acknowledged the necessity of dual prostheses to address the functional requirements of an amputee adequately. 485 [39]. The cost of a mechanical prosthesis, as estimated by Dr. Kavitha, is RM15,000 per unit, with a replacement required every 3 years. Using a multiplier of 36 years, the plaintiff would require 11 replacements, resulting in a total lifetime cost of RM180,000. This calculation emphasises the necessity of providing fair compensation 490 for the plaintiff's dual prostheses, ensuring his quality of life and ability to reintegrate socially and professionally while effectively meeting occupational and lifestyle demands. 19 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal Electrically Powered Prosthesis [40]. The court carefully reviewed both parties' submissions regarding an 495 electrically powered prosthesis. The plaintiff argued for a myoelectric-bionic prosthesis, which he believes would best restore his ability to function normally. However, the 1st defendant viewed this option as excessive and unnecessary, highlighting its high cost and the plaintiff’s inconsistent use of prostheses in the past. 500 [41]. Considering the plaintiff’s challenges in adapting to past prosthetic devices, the court found that awarding damages for the sophisticated myoelectric-bionic prosthesis would not be practical. Instead, the 1st defendant's proposal for a less advanced yet functional prosthesis costing RM118,980, with replacements every 505 three years (totalling RM1,784,700 over 43 years), was deemed more appropriate. [42]. The court awards the plaintiff damages for dual prostheses comprising a mechanical prosthesis at RM15,000 per unit, with replacements every three years, amounting to RM180,000 over 36 510 years. For the electrically powered prosthesis, the court adopts the 1st defendant’s proposal of a prosthesis costing RM118,980, with replacements every three years, totalling RM1,784,700 over the plaintiff’s 43-year life expectancy. This decision ensures practical solutions balancing functionality and cost while effectively 515 addressing the plaintiff’s needs. 20 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal Future medical and therapy needs [43]. The plaintiff claims a total sum for future medical and therapy needs, 520 including medical consultations, psychology consultations, physiotherapy, and occupational therapy, as outlined in Dr. Kavitha's expert report. The plaintiff’s counsel adopted the upper limit of the estimated costs, arguing that the benefit of the doubt should be given to the plaintiff as the victim. However, the 525 1st defendant contests some of these claims, arguing that they are excessive. [44]. For example, regarding the medication Celebrex 200 mg, the 1st defendant points out that the prescription is on a “when needed” basis. They argue it is unreasonable for the plaintiff to claim a 530 lifetime cost, as Dr. Kavitha confirmed that the plaintiff currently does not need Celebrex. Similarly, for the steroid injections prescribed for joint osteoarthritis, the defendants propose a reasonable sum of RM900.00, as the prescription notes indicate a maximum of three injections per joint. Balancing these 535 considerations, a reasonable sum of RM10,000 is awarded for the plaintiff's medical and therapy needs, taking into account both the necessity of future treatments and cost limitations. Orthotics, vehicle modifications, one-handed aids, and home equipment. 540 [45]. The plaintiff claims costs for orthotics, vehicle modifications, one- handed aids, and home equipment to support his daily activities post-injury. The 1st defendant, however, argues that the plaintiff is not currently using any orthotics (splints), and Dr. Kavitha (PW1) 21 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal agreed that if needed, the splints could be obtained through the 545 Public Services Department as the plaintiff is a public servant. Therefore, the 1st defendant submits that this claim should be rejected. Regarding other aids and home equipment such as a washing machine, dryer, dishwasher, food processor, and electronic bidet toilet seat, the 1st defendant contends that the plaintiff failed to 550 provide receipts proving the costs and argues that these items are standard in most households. The plaintiff currently resides with his mother, suggesting there is no need to claim these costs as they could be used by other family members. [46]. Despite the 1st defendant's arguments, it is essential to consider the 555 plaintiff’s need for adaptive equipment to facilitate his daily living and independence. Therefore, a reasonable sum of RM5,000 should be awarded to the plaintiff to cover the essential modifications and equipment that support his physical limitations, ensuring a basic level of independence. 560 Cost of hiring part-time and full-time maids [47]. The plaintiff claims the cost of hiring part-time and full-time maids to assist with daily activities, arguing that this would alleviate the burden on his family members. However, the 1st defendant submits that this claim should be rejected as PW1 failed to provide any 565 invoices or quotations to support the cost of hiring maids. Additionally, PW3's statement indicates a desire for a maid to help not just the plaintiff but also his family, which implies that the maid’s services would benefit others in the household, not solely the plaintiff. The 1st defendant argues that it is unreasonable for them to 22 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal 570 bear the cost of a maid used by the entire family, making the claim excessive and unjustifiable. [48]. The 1st defendant refers to Hasniyati bt Hassan & Anor v. Kerajaan Malaysia (supra), where the High Court in Penang rejected the claim for the future cost of maids, deeming it 575 unreasonable and not proven on a balance of probabilities. The court, in that case, emphasised that an award for the cost of maids should not be excessive. Based on this precedent and the lack of detailed evidence specifying the maid's tasks solely for the plaintiff’s benefit, the claim for maid costs is not reasonable. Therefore, the 580 court favours the 1st defendant’s submission and rejects this claim. Costs [49]. The plaintiff seeks an award for the getting-up fee for liability and quantum proceedings, along with out-of-pocket expenses incurred during the litigation. The plaintiff argues that these costs are 585 necessary due to the extensive preparation required to handle the case, which involved multiple witnesses and significant effort. A sum of RM208,594.14 is requested to fairly compensate for the work undertaken in pursuing justice. [50]. The 1st defendant, however, proposes that a reasonable amount for 590 the total costs, including out-of-pocket expenses and getting-up fees, should be RM60,000. In support, the 1st defendant cites Elisabeth Sugirthamalar Alfred (Administratrix of the estate of Lilian Nesamalar Alfred) v Tau Jiu Ee (t/a JS Tan & Co) [1997] 2 MLJ 208; [1996] CLJU 124; [1996] 4 MLRH 32, which emphasises 595 that costs should not be excessive and should only cover what is 23 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal necessary for conducting the litigation. Extravagant or non-essential expenses should not be passed on to the losing party. After considering both submissions and the court's discretion to determine costs without needing a detailed assessment, which can 600 save time and resources, I award costs in the amount of RM70,000. Interest [51]. Therefore, considering the submissions and established legal principles, it is just to award interest at the following rates: 4% per annum on special damages from 13 March 2018 to judgment, 8% 605 per annum on general and aggravated damages from the writ’s service date to judgment, and 5% per annum on the judgment sum until full payment. Allocator fee is not payable. Date : 9 January 2025 610 Moses Susayan MOSES SUSAYAN 615 Judicial Commissioner High Court in Malaya at Ipoh, Perak 620 625 24 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: 630 For the plaintiff : Khabir Dhillon together with [Ramakrishna Tharini & Dev Sundram] Advocates and Solicitors Messrs Ram & Low Kuala Lumpur 635 For the defendants : Zulyana binti Zollkapli Senior Federal Counsel Civil Division Government Contract and Medical 640 Negligence Unit Attorney of General Chambers Putrajaya (Notice: This Grounds of Decision is subject to official editorial revision) 645 25 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal 650 Table of Award by Court: No. Item Award by Court (RM) a. General Damages 1 Pain and suffering and loss of amenities of 150,000.00 life b. Aggravated Damages 1 Aggravated Damages 200,000.00 c. Special Damages 1 Hospital and medical expenses 1185.00 2 Travelling and accommodation expenses 3,000.00 3 Value of care by family members 6,000.00 4 Cost of vitamins, nutritional supplements, 1,000.00 and extra-nourishing food 5 Cost of medical equipment and supplies 581.00 6 Deposit and installment payments for 8,090.70 Perodua MyVi vehicle 7 Laundrette charges 400.00 8 Cost of obtaining medical reports 164.80 9 Costs of obtaining pre-action discovery of 6,459.50 medical records d. Pre-trial Damages 1 Instalment payments for vehicle 24,000.00 e. Future General Damages 1 prosthesis limb (mechanical) 180,000.00 2 prosthesis limb (myoelectric) 1,787,700.00 3 Medical consultations Item 3-8= 4 Psychologist consultations 10,000.00 5 Physiotherapy 6 Occupational therapy 7 Celebrex (pain medication) 8 Steroid injections 9 Orthotics Item 9 to 14 10 Modifications to car for one-handed 5,000.00 driving 11 One-handed aids 12 Home appliances 13 Electronic bidet toilet 14 Home modifications 15 Cost of full-time maid Nil 16 Cost of part-time maid Nil f. Costs 1 Getting-up fee for liability and quantum Item 1-2 proceedings 70,000.00 2 Out-of-pocket expenses g. Interest 26 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Interest on Special Damages and Pre-Trial 4% Damages from date of incident to date of judgment 2 Interest on General Damages for Pain and 8% Suffering and Loss of Amenities of Life and Aggravated Damages from date of service of Writ to date of judgment 3 Interest on judgment sum from date of 5% judgment up to date of full payment Headnotes 655 Damages — Assessment — Negligence resulting in amputation — Compensation sought for various heads of damages — Defendant admitted liability — Court determined quantum of damages based on evidence and precedents. Damages — General damages — Pain and suffering — Amputation of left arm — Impact on daily life and mental well-being — award of RM150,000 granted based on expert opinions 660 and precedents. Damages — Aggravated damages — Emotional and psychological distress — Delay in treatment and refusal to disclose medical records — Unique factors justified RM200,000 award. Damages — Special damages — Medical expenses, travel, and prosthetic costs — Claims 665 supported by credible testimony and receipts — Reasonable sums awarded for substantiated claims. Damages — Future medical expenses — Rehabilitation and prosthetic replacements — Dual prosthesis approach recognised — Award RM180,00.00 (mechanical prosthesis limb) and RM1,787,700.00 (myoelectric prosthesis limb) — ensures practical solutions by balancing 670 functionality of the prosthesis limb and cost while considering the plaintiff’s needs. 27 S/N bn4rl00gZEW1x3j1Z1i5rw **Note : Serial number will be used to verify the originality of this document via eFILING portal