TAN KHAR ENG (Mendakwa Sebagai Pentadbir Estet Chow Soek See, Si Mati) 1. ) Metro Kurnia Sdn Bhd 2. ) Dr Yeap Poay Wan 3. ) Cheong Kim Leong

TAN KHAR ENG (Mendakwa Sebagai Pentadbir Estet Chow Soek See, Si Mati) 1. ) Metro Kurnia Sdn Bhd 2. ) Dr Yeap Poay Wan 3. ) Cheong Kim Leong

The 2nd Defendant, having admitted liability by consent and failing to discharge the burden of disassociating subsequent complications from his admitted negligent act, is fully liable for all direct and natural consequences of the bowel perforation caused during surgery; no offset for the 1st Defendant's ex gratia payment or the discontinuance as to the 3rd Defendant is warranted absent evidence of settlement attributable to compensatory loss.

Citation
KA-22NCvC-98-12/2019 (Mahkamah Tinggi)
Parties
Plaintiff: Victor Jansz; 1st Defendant: Metro Kurnia Sdn Bhd; 2nd Defendant: Dr. Yeap Poay Wan; 3rd Defendant: Dr. Cheong Kim Leong
Court
High Court
Jurisdiction
Malaysia
Judgment Date
17 May 2023
Case Number
KA-22NCvC-98-12/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Tort — Medical Negligence (claim in Negligence, Statutory and Contractual Duties) / Judgment on Quantum (assessment of Damages) Following Consent Judgment Admitting Liability by 2nd Defendant; Prior Consent/discontinuance of Other Defendants
Outcome
Judgment in part for Plaintiff on quantum against 2nd Defendant (liability admitted by consent); claims against 1st Defendant settled ex gratia; claim against 3rd Defendant discontinued.
Legal Topics
Informed Consent, Causation, Apportionment and Double Recovery, Aggravated Damages, Consent Judgment
Source Language
Malay/English
Medical Negligence Tort Law Civil Procedure Damages Assessment Informed Consent Causation Apportionment and Double Recovery Aggravated Damages +1 more

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Parties

Victor Jansz

Plaintiff

Metro Kurnia Sdn Bhd

1st Defendant

Dr. Yeap Poay Wan

2nd Defendant

Dr. Cheong Kim Leong

3rd Defendant

Procedural Posture

Civil Tort — Medical Negligence (claim in Negligence, Statutory and Contractual Duties) / Judgment on Quantum (assessment of Damages) Following Consent Judgment Admitting Liability by 2nd Defendant; Prior Consent/discontinuance of Other Defendants

Legal Issues

  1. 1 Whether 2nd Defendant is liable for all direct and natural consequences of the intra‑operative bowel perforation
  2. 2 Whether subsequent complications and death can be causally attributed to the 2nd Defendant's admitted negligence
  3. 3 Whether payments by other parties (ex gratia or discontinuance) reduce or offset liability of the 2nd Defendant

Ratio Decidendi

The 2nd Defendant, having admitted liability by consent and failing to discharge the burden of disassociating subsequent complications from his admitted negligent act, is fully liable for all direct and natural consequences of the bowel perforation caused during surgery; no offset for the 1st Defendant's ex gratia payment or the discontinuance as to the 3rd Defendant is warranted absent evidence of settlement attributable to compensatory loss.

Court Disposition

Judgment in part for Plaintiff on quantum against 2nd Defendant (liability admitted by consent); claims against 1st Defendant settled ex gratia; claim against 3rd Defendant discontinued.

Orders

  • 2nd Defendant to pay special damages RM156,678.35
  • 2nd Defendant to pay general damages RM50,000.00 for pain and suffering