1. ) KERAJAAN MALAYSIA 2. ) PENGARAH HOSPITAL SULTANAH AMINAH JOHOR BAHRU 3. ) DR ROSLIHA BINTI HUSSIN 4. ) DR SIVAGANESH A/L SIVARAMAN v NIRWANA TAMBA (p)

Case Significance

Illustrates the limited scope for appellate interference with an assessment of damages in a medical-negligence claim, and the principle that a head of damages not clearly pleaded, but raised only in submissions, will not be entertained on appeal.

This High Court decision concerns a cross-appeal on the quantum of damages in a medical-negligence claim arising from a childbirth at a government hospital. The plaintiff, the mother, was admitted to deliver her child, but within less than twelve hours the foetus suffered brain damage from a lack of oxygen (hypoxia), and the baby died four days later, while the mother herself sustained serious injury. The Sessions Court found the defendants, comprising the Government, the hospital director and treating doctors, liable in negligence and awarded the plaintiff damages exceeding RM600,000 together with costs. Both sides originally appealed, the defendants against liability and quantum and the plaintiff by way of cross-appeal on the quantum of certain items only, but the defendants subsequently withdrew their appeal, so that the matter before the court was confined to the plaintiff's cross-appeal seeking to increase the award for specified heads of damages. The court examined the challenged items against the pleadings and the principles governing appellate interference with an award of damages, referring to authorities including Inas Faiqah Mohd Helmi v Kerajaan Malaysia and Sambaga Valli v Datuk Bandar Kuala Lumpur. A recurring difficulty was that certain claims, including one relating to costs, had not been clearly pleaded and were raised only in submissions, which the court held would prejudice the defendants and could not be allowed; without clear pleading, the court would assume only standard costs were sought. The court was satisfied that the general and aggravated damages awarded by the Sessions Court were appropriate and reasonable and reflected the trial court's concern at the negligence that ought not to have occurred. Concluding that there was no basis to increase the award, the court dismissed the plaintiff's cross-appeal without an order as to costs, leaving the Sessions Court's decision undisturbed. The judgment is a useful illustration of the limits on appellate interference with an assessment of damages and of the consequences of failing to plead a head of claim clearly.