Nurul Husna Muhammad Hafiz &

[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 825

A NURUL HUSNA MUHAMMAD HAFIZ & ANOR v.

KERAJAAN MALAYSIA & ORS
HIGH COURT MALAYA, KUALA LUMPUR
VAZEER ALAM MYDIN MEERA JC
[SUIT NO: 21NCVC-266-12-2012]
B
28 AUGUST 2014

CIVIL PROCEDURE: Discovery – Inspection of documents – Rights of patient to

obtain copies of medical records – Whether physician or hospital may refuse to
disclose medical records to patient – Whether patient must first obtain court order
C to get access to medical records
TORT: Negligence – Damages – Whether court can only award damages in
monetary terms – Whether quantum of damages can be reduced based on tortfeasor’s
promise to provide free medical treatment for victim – Whether quantum of damages
can be reduced where victim is entitled to free medical care
D
TORT: Negligence – Medical negligence – Plaintiff suffering irreversible brain
damage at birth due to negligence of medical staff – Damages – Whether plaintiff
must produce complete set of bills and receipts to claim special damages – Claim for
special food and nutritional supplements – Claim for diapers – Claim for traditional
E massage therapy – Claim for gratuitous care by family members – Determining
multiplier and multiplicand for future cost of care – Claim for maid, multi-purpose
vehicle and disabled-friendly home
The first plaintiff (‘Nurul Husna’) suffered severe and irreversible brain
damage at birth on 22 July 2005 at the Selayang Hospital, owned and
F operated by the Government of Malaysia (‘the first defendant’) through the
Ministry of Health. The second plaintiff was the mother of Nurul Husna, a
radiologist employed by the Malaysian government. The plaintiffs claimed
that the severe and irreversible brain damage of the first plaintiff was caused
by the negligence of the second to the 30th defendants (the doctors and nurses
G who attended to the delivery of the first plaintiff and post natal care of the
plaintiffs) and that the first defendant was vicariously liable. The plaintiff
alleged that as a result of the severe and irreversible brain damage, the first
plaintiff was suffering from spastic quadriplegia, cerebral palsy and profound
global development delay. At the outset, the defendants denied liability. The
defendants also refused to produce the medical records even though the
H
plaintiffs’ solicitors had written to Selayang Hospital requesting for copies of
the same. The plaintiffs’ application for an order for discovery and
production of a copy of an internal inquiry report was allowed. Following
the order of discovery and the production of the internal inquiry report, the
defendants had elected to not dispute liability but refused to record a formal
I admission of liability. As a result, the court allowed the plaintiffs’
application pursuant to O. 27 r. 3 of the Rules of Court 2012 for judgment
to be pronounced against the defendants in respect of liability and for
826 Current Law Journal [2015] 1 CLJ

damages to be assessed. Nurul Husna’s physical and mental condition meant A

that she will not be employable. Her parents will therefore have to continue
to provide for her throughout her life.
Held:
(1) The ownership of a patient’s medical record vests with the physician B
or hospital as the case may be. However, the physician or hospital
must deal with the medical records in the best interest of the patient.
The patient has an innominate and qualified right of access to his
medical records and there is a corresponding general duty on the part
of the physician or hospital to disclose the patient’s medical records C
to the patient, his agents, medical advisers or legal advisers. The
physician or hospital may refuse to disclose partly or wholly the
medical records to the patient in certain limited circumstances, such
as, but not limited to, situations when such disclosure would be
detrimental or prejudicial to the patient’s health in that the
D
information is likely to cause serious harm to the physical or mental
health of the patient or of any other individual contained in the
medical records; or when such disclosure would divulge information
relating to or provided by an individual, other than the patient, who
could be identified from that information. When the circumstances
giving rise to such qualification for refusal to disclose does not present E
itself, and when the request for disclosure is reasonable, having regard
to all the circumstances, the physician or hospital shall give copies of
the medical records to the patient upon payment of reasonable copying
charges. (para 21)
F
(2) Reliance of private healthcare operators on reg. 44(2) of the Private
Healthcare Facilities and Services (Private Hospital and Other Private
Healthcare Facilities) Regulations 2006 to withhold patient’s access to
medical records until the patient obtains a court order is entirely
misconceived. There is no requirement in law that the patient first
obtain a court order to get access to his medical records. (para 22) G

(3) It is trite that in a negligence claim, the court can award damages only
in monetary terms. The court cannot make an award for any specific
relief against the defendants in a tortious claim for damages, for
example, to order the tortfeasor to undertake repairs, provide medical
treatment, supply goods and services. (para 28) H

(4) A reduction in the quantum of damage based on the promise from the
tortfeasor to provide free medical treatment to the victim of the tort
is contrary to legal principle. Nor should damages be reduced by
virtue of any statutory duty of the government to provide medical care
I
to the first plaintiff by virtue of her incapacity. The first plaintiff’s
entitlement to compensatory damages for the negligence of the
defendants could not be reduced or diminished even though the second
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 827

A plaintiff, and the first plaintiff as child and dependent of the second
plaintiff, were entitled to free medical care by virtue of the second
plaintiff’s contract of employment with the government and/or by
virtue of the first plaintiff’s status as a disabled person (‘orang kurang
upaya’) who is afforded free medical care in government hospitals.
B (para 29)
(5) Nurul Husna’s food had to be specially prepared. In addition, Nurul
Husna needed to be given vitamins and nutritional supplements to
increase her resistance to diseases. A sum of RM44,500 was allowed
for this head of claim. It was unreasonable to expect the plaintiffs to
C collect bills and receipts and filing them away with a view to bringing
a claim especially when the defendants had hidden their culpability in
the treatment and management provided to Nurul Husna. (para 38)
(6) Nurul Husna was both bowel and bladder incontinent and required
about 10-15 diapers a day in addition to wipes and creams. This claim
D
was supported by some bills and receipts, though not complete. The
sum claimed was reasonable. The fact that the plaintiffs could not give
a complete set of bills and receipts for this item could not be a reason
to lower the claim. (para 43)
(7) Nurul Husna was taken for traditional massage therapy. Associate
E
Professor Dr Lydia (PW3) had mentioned in her expert report that
complementary and alternative medical therapy brings benefit to
persons suffering from cerebral palsy. The claim of RM5,340 under
this head was thus reasonable. (para 46)
F (8) Gratuitous care of disabled persons by family members can be
quantified on a commercial basis and compensated in damages.
Besides Nurul Husna’s parents, other family members such as her
grandparents also provide care. A sum of RM500 a month was
reasonable for this head of claim; (Tan Cheong Poh & Anor v. Teoh Ah
Keow, refd). (para 54)
G
(9) The multiplier for future costs of care was derived by having regard
to the life expectancy of Nurul Husna. Nurul Husna’s life expectancy
was estimated to be 35 years. Thus, the calculation of the multiplier
would be: 35 (life expectancy) – 8 (current age) - 1/3 for contingencies
H = 18 years. (paras 88 & 89)
(10) The plaintiffs should not be left stranded if a single maid resigns,
absconds or falls ill. Nurul Husna’s parents should be freed of this
burden so as to allow them to concentrate on their respective careers
and on their other child. It would also be best that two maids take care
I of Nurul Husna on a roster basis so that it does not become too
strenuous for the maids. This would also eliminate short turnover of
maids or the incidence of them absconding; (Raja Zam Zam v.
Vaithiyanathan, refd). (para 96)
828 Current Law Journal [2015] 1 CLJ

(11) Nurul Husna would require a multi-purpose vehicle that had been A
modified to accommodate Nurul Husna in her wheelchair and for her
carers to be seated as well. The cost of this specialised vehicle with
three renewals was allowed but with a 1/3 deduction as the renewals
would result in the previous vehicle having a trade-in residual value.
(para 101) B

(12) Nurul Husna would need a disabled-friendly home. The plaintiffs’

apartment could be renovated at a cost of RM100,000 to make it
wheel chair and disable friendly for Nurul Husna’s everyday needs. A
sum of RM100,000 was allowed under this head. (para 106)
C
Case(s) referred to:
ABDA Airfreight Sdn Bhd v. Sistem Penerbangan Malaysia Bhd [2001] 8 CLJ 1 HC (refd)
B A Rao & Ors v. Sapuran Kaur & Anor [1978] 1 LNS 14 FC (refd)
Bolitho v. City Hackney Health Authority [1997] 4 All ER 771 (refd)
Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin & Ors And Another Appeal [2013]
8 CLJ 449 CA (foll) D
Hawkins v. New Mendip Engineering Ltd [1966] 3 All ER 228 CA (refd)
Jag Singh v. Toong Fong Omnibus Co Ltd [1964] 1 LNS 50 (refd)
Lim Poh Choo v. Camden and Islington Area Health Authority [1979] 2 All ER 910 (refd)
McInerney v. MacDonald [1990] 66 DLR (4th) 736 (refd)
Overseas Investment Pte Ltd v. Anthony William O’Brien & Anor [1988] 2 CLJ 238; [1988]
2 CLJ (Rep) 82 HC (refd) E
Peters v. East Midlands Strategic Health Authority And Others [2009] LS Law Med 229
(refd)
Raja Zam Zam v. Vaithiyanathan [1965] 1 LNS 145 HC (refd)
Regina v. Mid Glamorgan Family Health Services Authority and Another [1995] 1 WLR 110
(refd)
F
Schrump Et Al v. Koot Et Al Lexsee (1977) 18 OR (2d) 337 (refd)
Takong Tabari v. Government of Sarawak & Ors & Another Appeal [1998] 4 CLJ 589 CA
(refd)
Tan Cheong Poh & Anor v. Teoh Ah Keow [1996] 3 CLJ 665 CA (refd)
Yang Salbiah & Anor v. Jamil Harun [1981] 1 LNS 106 FC (foll)

Legislation referred to: G

Evidence Act 1950, s. 123
Private Healthcare Facilities and Services (Private Hospital and Other Private
Healthcare Facilities) Regulations 2006, reg. 44(2)
Rules of Court 2012, O. 24 r. 7A, O. 27 r. 3

Access to Health Records Act 1990 [UK], ss. 3, 4, 5 H

For the plaintiffs - MS Dhillon (KB Karthi with him); M/s PS Ranjan & Co
For the defendants - Zaliha Mohd Janis (Najiah Zaimah Aris with her); AG’s Chambers

Reported by Amutha Suppayah

I
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 829

A JUDGMENT
Vazeer Alam Mydin Meera JC:
[1] The first plaintiff (Nurul Husna binti Muhammad Hafiz) suffered
severe and irreversible brain damage at birth on 22 July 2005 at the Selayang
B Hospital, owned an operated by the Government of Malaysia (‘the first
defendant’) through the Ministry of Health. The second plaintiff is the
mother of Nurul Husna.
[2] The plaintiffs’ claim that the severe and irreversible brain damage
of the first plaintiff was caused by the negligence of the second to the
C 30th defendants (the doctors and nurses who attended to the delivery of the
first plaintiff and post natal care of the plaintiffs) and that the first defendant
was vicariously liable. The plaintiffs allege that as a result of the severe and
irreversible brain damage, the first plaintiff is suffering from spastic
quadriplegia, cerebral palsy and profound global development delay. In the
D premise, the plaintiffs’ claim damages, interest and cost.
[3] At the outset the defendants denied liability and filed defence
challenging the plaintiffs’ claim.
[4] The defendants also refused to produce the plaintiffs’ medical records
even though the plaintiffs’ solicitors had first written to Selayang Hospital on
E
24 November 2011 requesting for copies of the same.
[5] The plaintiffs then filed a notice of application (encl. 8) seeking an
order for discovery and production of a copy of an internal inquiry report
referred to in para. 3 of the defence together with the notes of proceedings
F of the inquiry. The plaintiffs also sought an order that the defendants within
seven days of the order serve on the plaintiffs’ list of documents, an affidavit
verifying list of documents and copies of the documents referred to in the list
of documents.
[6] The defendants vehemently objected to encl. 8 primarily on grounds
G of affairs of state privilege as provided in s. 123 of the Evidence Act. Counsel
for the plaintiffs argued on strength of the pronouncement of the Federal
Court in BA Rao & Ors v. Sapuran Kaur & Anor [1978] 1 LNS 14 that the
internal inquiry report and all other medical records of the plaintiffs ought
to be produced by the defendants as these documents do not have any
H connection with affairs of the state and as such the privilege from disclosure
under s. 123 of the Evidence Act does not arise.
[7] After having heard full arguments, I accepted the submissions of
counsel of the plaintiffs and allowed the plaintiffs’ aforesaid application in
encl. 8 on 19 April 2013 and ordered production of the internal inquiry
I report and the plaintiffs’ medical records and further ordered that the
defendants file an affidavit verifying the documents.
830 Current Law Journal [2015] 1 CLJ

[8] Following that order of discovery, the defendants produced and served A
copies of the plaintiffs’ medical records as well as a copy of a Ministry of
Health inquiry report relating to the first plaintiff’s birth at the Selayang
Hospital on 22 July 2005 and her subsequent medical care at the Selayang
Hospital. This report entitled “Independent Inquiry Committee Report”
contains the following conclusion: B
Conclusion
The members of the external board of inquiry found that there was
substandard care in the management of second stage of labour. There was
a delay in the delivery of the baby; due to inability to appreciate the
severity of the problem because the Medical Officer did not review the C
CTG. Therefore the decision of mode of delivery was not decided and
the intervention was not initiated. The injury to the baby was probably
contributed by poor management of patient intrapartum as there was
failure to review patient and failure of detection of abnormal CTG.
[9] It is worth noting that despite this conclusion on the defendants’ D
culpability by the Health Ministry’s external board of inquiry, the defendants
denied liability in their defence and there was an attempt by the defendants’
to exculpate themselves through a rather contradictory and self-serving
medical report dated 15 October 2012 prepared by one Dr Mohamed Roslan
Abd Halim the head of obstetrics and gynaecology of Selayang Hospital E
where he concludes as follows:
Conclusion
The poor outcome of the baby was unpredictable and unexpected. The
management during the antenatal period and during the intrapartum were
within the standard practice. F

[10] In any event, following the order of discovery and the production of
the damning internal inquiry report, the learned Senior Federal Counsel
appearing for the defendants informed the court on 26 July 2013 that the
defendants had elected to not dispute liability in respect of the plaintiffs’
claim of negligence. However, the learned Senior Federal Counsel refused to G
record a formal admission of liability.
[11] As a result of that, the plaintiffs filed an application (encl. 21) pursuant
to O. 27 r. 3 of the Rules of Court 2012 (‘ROC’) for judgment to be
pronounced against the defendants in respect of liability and for damages to
H
be assessed. I granted order in terms of encl. 21 on 11 October 2013 and
judgment on liability was entered against the defendants with an order for
damages to be assessed.
The Patient’s Rights Of Access To Medical Records
[12] Before I deal with the issue of quantum of damages, I would like to I
briefly touch on the issue of a patient’s right of access to his medical records,
which was the subject matter of encl. 8. Of late, there has been a marked
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 831

A increase in the number of suits or applications filed by patients for access to

their medical records. In the present case the defendants too had refused to
make pre-action discovery of the plaintiffs’ medical records.
[13] The prevalent common practice among medical professionals and
hospitals is to refuse to give copies of patient’s medical records unless
B
ordered by the court to do so. This has necessitated the filing of applications by
patients seeking court’s intervention to order production of the medical records.
In most cases, when the application comes for hearing, the respondent throws
in the towel and agrees to produce copies of the medical records sought. In
a handful of cases, there is resistance and the court determines the issue to
C order production. This guarded conduct of the medical professionals and
hospitals has caused patients to incur avoidable costs and delays by filing
originating processes for an order for discovery of their medical records.
[14] This may be an opportune moment for me to revisit and reiterate the
principles governing the rights of a patient to access his medical records. The
D
Malaysian Medical Council (‘MMC’), the statutory body corporate
established under the Medical Act 1971 to regulate the medical profession,
recognises that patients have a right of access to their medical records. This
recognition is embodied in the guideline of the Malaysian Medical Council,
MMC guideline 002/2006 – medical records and medical reports
E (‘the guideline’). The foreword to the guideline penned by Tan Sri Datuk Dr
Hj Mohamed Ismail Merican, the then President of the MMC, states that:
The guidelines are designed to complement, and should be read in
conjunction with, the Medical Act and Regulations, Code of Professional
Conduct of the Malaysian Medical Council and other guidelines issued
F by the Council or any related organisations, as well as any statute or
statutory provisions in force and all related statutory instruments or
orders made pursuant thereto.
This guideline on the medical records and medical reports has been
prepared with careful attention to details, cognisant of the current
G international stand on the subject. The draft has been reviewed numerous
times by the Malaysian Medical Council and includes invaluable
responses from individuals, organisations and professional bodies in the
country, before formal adoption by the Council.
[15] It is evident that the guideline was formulated after an extensive
H
consultation process involving a broad spectrum of stakeholders in the
medical services sector. And though the guideline may not have the force of
law in that these are not regulations made pursuant to the Medical Act, 1971,
it nevertheless has high persuasive authority in that the guideline was adopted
by the MMC on 14 November 2006 as general guidance for its members “on
matters of professional ethics, codes of professional conduct and medical
I
practice in general”. In effect the guideline is a guide by peers for peers and
a code of ethics and conduct. Since the guideline forms part of professional
832 Current Law Journal [2015] 1 CLJ

ethics and conduct of medical professionals, the breach of the guideline and A
any unreasonable denial of a patient’s right of access to his medical records
may be subject to disciplinary sanction by the MMC.
[16] There are several clauses in the guideline that needs particular
attention. Clause 1.7 of the guideline relates to the patient’s right to medical
B
records and states that:
1.7. Patient’s Expectations and Rights to Medical Records
It is generally accepted that the patient should:
(i) Have access to records containing information about his/her
medical condition for legitimate purpose and in good faith; C

(ii) Know what personal information is recorded,

(iii) Expect the records are accurate, and
(iv) Know who has access to his/her personal information.
D
There is evidence that increased access to medical records has provided
patients with better understanding of their illness as well as having a
positive impact on patient-doctor relationship.
While patients have right of such access to their medical records, they may
be permitted to inform the practitioner of any factual errors in the personal
patient information. They should not seek to change any entries made by E
the practitioner in the course of consultation, diagnosis and management
as these are made by the practitioner based on his clinical judgment.
[17] And cl. 1.15 of the guidelines on access to medical records provides that:
1.15. Access to Medical Records
F
The patient may be entitled to access medical records as part of the
contract between him/her and the medical practitioner, for various
purposes, ranging from need to seek second opinion, to seek further
treatment elsewhere, or for litigation. This privilege is also extended with
the patient’s consent to the patient’s appointed agents.
G
Normally, medical practitioners and persons in charge of healthcare
facilities and services should not object to the release of results and
reports of the patient’s laboratory investigations, X-rays and scans, and
other such diagnostic tools, which the patient would have paid for
personally or through insurance.
H
Medical practitioners and persons in charge of healthcare facilities and
services are generally expected to cooperate and release all parts of the
medical records, or certified true copies of the records, when so requested
by the patient.
If the patient’s or agents’ request for access is refused after all other
avenues have been explored, a patient may then resort to civil action. I
Legal proceedings are commenced by issuing a writ to permit the process
of ‘order of discovery’ to proceed after which documents maybe
subpoenaed.
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 833

A When medical records are taken out from the private healthcare facility
or service whether by a court order, or mutual consent, a copy of the
records shall be retained by the private healthcare facility or service and
the original records shall be returned to the private healthcare facility or
service at the end of the proceedings for which the records were directed
to be procured.
B
The patient, and/or his appointed agent/officer, on written request, is
entitled to a written report on the care given to the patient as recorded
in the medical record, and relevant copies of their medical records. The
healthcare facility is not liable for any interpretation or analysis of the
medical record made by a third party.
C
The withholding of information of the care, diagnosis, treatment and
advice given to the patient, and relevant copies of the medical records, is
unethical.
[18] Further, cl. 1.17 of the guideline deals with instances where the
practitioner may deny disclosure of the medical records and it states that:
D
1.17. Denial of Disclosure
The practitioner may deny disclosure of the contents of the medical
record, if in his considered opinion, the contents if released may be
detrimental or disparaging to the patient, or any other individual, or liable
E
to cause serious harm to the patient's mental or physical health or
endanger his life. The practitioner may also deny disclosure particularly if
the patient is deceased. In such instances, the practitioner should be able
to justify his decision to deny disclosure.
The practitioner may deny disclosure if there is no written consent from
the patient, or his legal next-of-kin or guardian, for release of the contents
F of the Medical Record to a third party.
[19] When the guideline is scrutinised the position adopted therein by the
MMC is similar to the common law position in England and Wales prior to
the coming into force of the Access to Health Act 1990. The common law
recognised the patient’s general right of access to medical records. However,
G
that right is not absolute. The courts whilst recognising this general right have
also recognised circumstances when the doctor or hospital may refuse to
disclose the medical records. Thus, in common law exceptions for non-
disclosure are set out rather than exceptions for disclosure, underscoring that
the right of patients and their agents to access medical records is innominate
H in nature. This principle was well stated by the English Court of Appeal in
Regina v. Mid Glamorgan Family Health Services Authority and Another [1995]
1 WLR 110 where Evans LJ held as follows:
In my judgment, there is no good reason for doubting either that a right
of access does exist or that it is qualified to that extent at least. The record
I is made for two purposes which are relevant here: first, to provide part of
the medical history of the patient, for the benefit of the same doctor or
his successors in the future; and, secondly, to provide a record of diagnosis
and treatment in case of future inquiry or dispute. Those purposes would be
834 Current Law Journal [2015] 1 CLJ

frustrated if there was no duty to disclose the records to medical advisers or to the A
patient himself, or his legal advisers, if they were required in connection with a later
claim. Nor can the duty to disclose for medical purposes be limited, in my
judgment, to future medical advisers. There could well be a case where
the patient called for them in order to be able to give them to a future
doctor as yet unidentified, eg. in case of accident whilst travelling abroad.
B
(emphasis added)
And Sir Roger Parker added:
(1) I regard as untenable the proposition that, at common law, a doctor or health
authority has an absolute property in medical records of a patient, if this means,
which it appears to do, that either could make what use of them he or it chose. C
Information given to a doctor by a patient or a third party is given in
confidence and the absolute property rights are therefore necessarily
qualified by the obligations arising out of that situation. (2) I regard as
equally untenable the proposition that by reason of a "right of self-determination" a
patient has an unfettered right of access to his medical records at all times and
in all circumstances; indeed it is accepted for the applicant that this cannot be so. D
(3) In my view the circumstances in which a patient or former patient is entitled to
demand access to his medical history as set out in the records will be infinitely
various, and it is neither desirable nor possible for this or any court to attempt to
set out the scope of the duty to afford access or, its obverse, the scope of the patient's
rights to demand access. Each case must depend on its own facts. (4) There can,
E
I think, be no doubt, for example, that a doctor should, if requested by
the patient, or perhaps by a patient's doctor for the time being, afford
access to such doctor but not necessarily to the entire contents of the
records. There may, however, be circumstances when direct access to the
records or some part of them should be given to the patient himself. If,
for example, he is about to emigrate and his condition is such that he might F
need treatment before he can nominate a successor doctor, it would, it
seems to me, be probable that the doctor with the records would be
obliged either to give access to the records or to provide his departing
patient with a letter giving the information necessary to enable a doctor,
faced with his collapse, eg, on board ship, to treat him properly.
(emphasis added) G

In England, that common law innominate right is now statutorily embodied

in the Access to Health Records Act 1990. Section 3 of that Act gives the
patient or his agent a prima facie right of access to medical records whilst s. 4
and s. 5 provide for situations where the right of access may be wholly or
H
partially excluded.
[20] In Canada the position is not too dissimilar to that of the English
common law. The New Brunswick Court of Appeal in McInerney v.
MacDonald [1990] 66 DLR (4th) 736 at 744 held that:
The physician-patient relationship also gives rise to the physician’s duty I
to make proper disclosure of information to the patient ... The appellant
concedes that a patient has a right to be advised about the information
concerning his or her health in the physician’s medical record. In my view
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 835

A however, the fiducial qualities of the relationship extend the physician’s duty beyond
this to include the obligation to grant access to the information the doctor uses in
administering treatment. This approach has been taken by one stream of
American cases. In Emmet v. Eastern Dispensary and Casualty Hospital, 396
F2d 931 (DC Cir 1967) Robinson J held, at p. 935, that the fiducial
qualities of the physician-patient relationship imposes a duty on the
B physician “to reveal to the patient that which in his best interests it is
important that he should know”. Thus, in that case, the decedent
patient’s son was entitled to inspect the decedent’s medical records.
Similarly, in Cannell v. Medical and Surgical Clinic, 315 NE2d 278 (Ill App
Ct 1974), the court, having referred to the decision in Emmet, held that
the fiducial qualities of the physician-patient relationship require the
C
disclosure of medical data to a patient or agent upon request, and that
the patient need not engage in legal proceedings to obtain that
information.
(emphasis added)

D That principle establishing the patient’s right of access to medical records

based on the fiduciary relationship between the patient and the doctor is
equally applicable in Malaysia. In fact the MMC’s Code of Medical Ethics
2002 enjoins that physicians should make decisions which are always in the
best interest of the patient. Thus, reiterating the fiducial nature of the patient-
physician relationship.
E
[21] Based on the legal duties and rights that arise from the physician-
patient fiducial relationship, and further having regard to the provisions in
the guideline and the common law principles, the legal position in Malaysia
vis-à-vis the patient’s right of access to medical records can be summarised as
F follows:
(a) The ownership of a patient’s medical record vests with the physician or
hospital as the case may be. However, the physician or hospital must
deal with the medical records in the best interest of the patient;
(b) The patient has an innominate and qualified right of access to his
G
medical records and there is a corresponding general duty on the part of
the physician or hospital to disclose the patient’s medical records to the
patient, his agents, medical advisers or legal advisers;
(c) The physician or hospital may refuse to disclose partly or wholly the
H
medical records to the patient in certain limited circumstances, such as,
but not limited to, situations when such disclosure would be detrimental
or prejudicial to the patient’s health in that the information is likely to
cause serious harm to the physical or mental health of the patient or of
any other individual contained in the medical records; or when such
disclosure would divulge information relating to or provided by an
I
individual, other than the patient, who could be identified from that
information;
836 Current Law Journal [2015] 1 CLJ

(d) When the circumstances giving rise to such qualification for refusal to A
disclose does not present itself, and when the request for disclosure is
reasonable, having regard to all the circumstances, the physician or
hospital shall give copies of the medical records to the patient upon
payment of reasonable copying charges.
B
[22] At times arguments have been forwarded by some private hospitals
that they would disclose the patient’s medical records only after the patient
has obtained a court order. This argument is premised on reg. 44(2) of the
Private Healthcare Facilities and Services (Private Hospital and Other
Private Healthcare Facilities) Regulations 2006 that provides:
C
No patient’s medical record shall be taken out from the private healthcare
facility or service except under a court order and when taken out from the
private healthcare facility or service under a court order, a copy of the records
shall be retained by the private healthcare facility or service and the
original records shall be returned to the private healthcare facility or
service at the end of the proceedings for which the records were directed D
to be procured.
A careful reading of reg. 44(2) shows that the intent of that regulation is to
ensure that original copies of medical records are always secured safely
within the premises of the private healthcare facility. In this regard, reg. 44(2)
provides that the original medical records cannot be removed from the E
private healthcare facility unless with a court order and even in such
circumstance a copy is to be kept at the said private healthcare facility and
the original returned promptly. It is clear that reg. 44(2) does not primarily
deal with the patient’s right of access to medical records. It deals with the
security of the original medical records. Regulation 44(2) does not stipulate F
that whenever a patient wishes to have access to his medical records, he must
get a court order. Therefore the reliance of private healthcare operators on
reg. 44(2) to withhold patient’s access to medical records until the patient
obtains a court order is entirely misconceived. There is no requirement in
law that the patient first obtains a court order to get access to his medical records.
G
[23] Physicians and hospitals would be well advised to grant access to
patient’s medical records unless there were circumstances warranting the
withholding of the same for reasons discussed earlier. If access is withheld
unreasonably and the patient is to put to cost and expense to procure a court
order to compel production of the medical records, for instance under the H
provisions of O. 24 r. 7A of the Rules of Court 2012, then the patient would
in such circumstance be entitled to cost on a solicitor-client basis.
Trial And Assessment On Quantum Of Damages
[24] At the trial on quantum of damages the following witnesses gave
evidence for Nurul: I

(i) The mother, the second plaintiff Dr Nor Azalina binti Mohd Songib
(PW1);
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 837

A (ii) The father, Mr Muhammad Hafiz bin Abd Wasit (PW2);

(iii) Consultant rehabilitation physician, Associate Professor Dr Lydia
Abdul Latif (PW3); and
(iv) Consultant physiotherapist, Dato’ Dr Balwant Singh Bains (PW4).
B [25] The defendants’ sole witness was rehabilitation physician Dr Sharon
Anne Khor Keat Sim (DW1).
[26] The evidence shows that the first plaintiff, Nurul Husna, suffers from
severe cerebral palsy resulting in her being totally dependent on others for
her care and needs. Both her parents (PW1 and PW2) had testified on the
C
difficulties faced by them in caring for Nurul Husna to the extent that it had
affected adversely their marital life and has put a heavy strain on their family
life. It was very evident that caring for Nurul Husna was extremely time-
consuming and stressful. Nurul Husna’s physical and mental condition meant
that she will not be employable. Her parents will therefore have to continue
D to provide for her throughout her life. Counsel for the plaintiffs concedes that
Nurul Husna is not entitled to make a claim for loss of earnings.
[27] Nurul Husna’s mother, the second plaintiff, is a medical doctor who
qualified as a radiologist in 2012. She is employed by the Malaysian
Government and is stationed at the Johor Bahru Hospital. The second plaintiff
E
testified that she has plans to go into private practice, which is more lucrative
and would give her more flexibility in scheduling her working hours in order
to provide better care to Nurul Husna. Nurul’s father who works in Kuala
Lumpur as an information technology officer commutes to Johor Bahru on
the weekends, where the second plaintiff resides with Nurul Husna and her
F other child. The second plaintiff further testified that the reason she had
moved to Johor Bahru was to get support from her aged parents in taking care
of Nurul Husna.
[28] In regard to Nurul Husna’s past, present and future needs counsel for
the plaintiffs has referred to the factual and expert evidence adduced in court
G
and the relevant principles of law regarding compensation in cases of this
nature. It is trite that in a negligence claim, the court can award damages only
in monetary terms (see Jag Singh v. Toong Fong Omnibus Co Ltd [1964] 1 LNS
50; [1964] 30 MLJ 463). The court cannot make an award for any specific
relief against the defendants in a tortious claim for damages, for example, to
H order the tortfeasor to undertake repairs, provide medical treatment, supply
goods and services.
[29] I accept the plaintiffs’ counsel’s contention that a reduction in the
quantum of damages based on the promise from the tortfeasor to provide free
medical treatment to the victim of the tort is contrary to legal principle nor
I
would the contractual obligations (arising from the second plaintiff’s
employment by the first defendant) be a ground to reduce damages. Nor
should damages be reduced by virtue of any statutory duty of the government
to provide medical care to the first plaintiff by virtue of her incapacity.
838 Current Law Journal [2015] 1 CLJ

[30] In Peters v. East Midlands Strategic Health Authority And Others [2009] A
LS Law Med 229 defendants therein argued that since the local council had
a statutory duty under subsisting legislation to provide care, damages ought
to be reduced to reflect that duty. The English Court of Appeal in rejecting
that argument held that:
Having reviewed these authorities, we can now express our conclusion on B
this issue. We can see no reason in policy or principle which requires us to hold
that a claimant who wishes to opt for self-funding and damages in preference to
reliance on the statutory obligations of a public authority should not be entitled to
do so as a matter of right. The claimant has suffered loss which has been caused
by the wrongdoing of the defendants. She is entitled to have that loss made good,
C
so far as this is possible, by the provision of accommodation and care.
... provided there was no risk of double recovery, there was no reason in
policy or principle why the claimant should give up her right to damages
rather than become dependent on the state.
... D
It was reasonable for the claimant to opt for self-funding in preference to
reliance on the statutory obligation of the Council as the local authority.
... Nor was there any reason why the claimant should take the risk that
further legislative changes might remove the disregard of damages for
personal injury from those in receipt of public funding.
E
(emphasis added)
[31] Likewise, here, the first plaintiff’s entitlement to compensatory
damages for the negligence of the defendants cannot be reduced or
diminished even though the second plaintiff, and the first plaintiff as child
and dependent of the second plaintiff, are entitled to free medical care by F
virtue of the second plaintiff’s contract of employment with the government
and/or by virtue of the first plaintiff’s status as a disable person (‘orang
kurang upaya’) who is afforded free medical care in the government hospitals
under the existing policies of the current government. The contractual rights
flowing from the second plaintiff’s contract of employment is not permanent G
and if that contract were to be terminated by any party then the contractual
right to free medical care is extinguished. In any event the second plaintiff
cannot be curtailed of her right to leave her government employment in the
future and be tied down. Likewise, government policies are not permanent
in nature. The provision of free medical care in government healthcare
H
facilities for disable persons may change in the future, as all government
policies are susceptible to change from time to time.
[32] In Malaysia, the provision of healthcare by the government is not a
matter regulated by statute. It is a matter of mere policy. A public officer
who causes loss through his or her unlawful conduct has no right to receive I
a subsidy from the taxpayer. The victims of negligence caused by a public
officer have no statutory right of assistance from the state. These victims
would have to institute civil proceedings against the tortfeasors and seek
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 839

A compensation in the form of damages. If the government is vicariously

ordered to pay such damages then it may subject the wrongdoer to a
surcharge action under the general orders. That is entirely between the
government and the public officer.
[33] The general overriding principle governing the award of damages for
B
injury arising from negligence was well stated by Raja Azlan Shah CJ (as His
Royal Highness then was) in Yang Salbiah & Anor v. Jamil Harun [1981] 1
LNS 106; [1981] 1 MLJ 292 FC. Nurul Husna is entitled to special damages,
pre-trial damages, general damages for pain and suffering and the loss of the
amenities of life, and cost of future care.
C
Special Damages
[34] Special damages are awarded for the plaintiffs’ actual pecuniary
damage or loss suffered between the date of negligent act and the date when
court delivers judgment. Special damages must be pleaded and particularised
D and must be proved by either oral or documentary evidence. See ABDA
Airfreight Sdn Bhd v. Sistem Penerbangan Malaysia Bhd [2001] 8 CLJ 1; [2001]
3 MLJ 64.
[35] Special damages have been divided into two periods of claim. The first
is from the date of negligence to the date of filing the writ and the second
E is the pre-trial losses.
(i) Special Damages For The First Period
[36] The special damages for the first period are from the date of incident
on 22 July 2005 to the date of the statement of claim 27 December 2012,
F ie, a period of 89 months. The expenses claimed are as follows.
Medical Treatment And Hospital Admissions
[37] The amount claimed is RM2,500 and the counsel for the defendants
has agreed to this sum. Therefore, I allowed the sum of RM2,500 for medical
treatment and hospital admissions.
G
Special Food, Vitamins And Nutritional Supplements
[38] PW1 testified that Nurul Husna’s food has to be specially prepared.
She cannot eat the food that is prepared for the rest of her family members.
This is evidence found in answers to Q 78 and 79 of the witness statement
H of Dr Nor Azalina Binti Mohd Songib (pp. 15, 49 and 51 of bundle B). In
addition to the specially prepared food, Nurul Husna needs to been given
vitamins and nutritional supplements such as Scott’s Emulsion, Delima Plus
and Habbatus Sauda to increase her resistance to diseases. (See answer to Q
88 of witness statement of Dr Nor Azalina Binti Mohd Songib). Nurul
I Husna’s mother had testified that she spends the sum of about RM500 per
month for Nurul Husna’s special food, vitamins and nutritional supplements.
See answer to Q 90 of witness statement of Nor Azalina Binti Mohd Songib.
840 Current Law Journal [2015] 1 CLJ

As such, counsel for the plaintiffs submits that the sum of RM500 per month A
x 89 months = RM44,500 claimed under this head is reasonable in the
circumstance.
[39] Counsel for the defendants whilst agreeing that Nurul Husna may need
to be fed special food, vitamins and nutritional supplements, argues that
B
without proper documentary evidence of payment receipts for such
purchases, a sum of RM200 per month would be more appropriate.
[40] I allowed the sum of RM44,500 as claimed by the plaintiffs as the
amount claimed is not farfetched in today’s prices and it would be too much
to expect Nurul Husna’s parents to keep documentary proof of expenses C
incurred for these expenses since her birth. In this regard, I accept the
submissions of counsel for the plaintiffs that the evidence was clear that the
irreversible injuries and disabilities suffered by Nurul Husna had and
continue to have an overwhelming and debilitating effect on her parents and
carers. Their resources were centred on first saving her life and next caring
D
for her. In such circumstances it is unreasonable to expect Nurul Husna’s
parents to collect bills and receipts and filing them away with a view to
bringing a claim especially when the defendants had hidden their culpability
in the treatment and management provided to Nurul Husna. (See Overseas
Investment Pte Ltd v. Anthony William O’Brien & Anor [1988] 2 CLJ 238;
[1988] 2 CLJ (Rep) 82; [1988] 3 MLJ 332). Indeed, if the defendants had E
candidly acknowledged their negligence earlier, than Nurul Husna’s parents
could have taken legal advice much earlier and kept copies of their bills and
receipts to support their claim. In this regard, I accept that it would be
unrealistic to expect Nurul Husna’s parents have copies of bills and receipts
for all of the expenses. F

Mechanical Aids And Appliances

[41] Nurul Husna’s mother had testified that she had purchased certain
mechanical aids and appliances for Nurul Husna. These equipment include
the customised tilt-in-space wheelchair, feeding chair, standing frame, ankle
G
foot orthosis, leg gaiter, toys for therapy, and therapy balls. See answer to
Q 99 of witness statement of Dr Nor Azalina Binti Mohd Songib. The
plaintiffs had pleaded the sum of RM5,000 for this head of damages and
counsel for the plaintiffs submits that this sum should be awarded in full.
[42] Counsel for the defendants do not deny that this sum of RM5,000 is H
claimable as special damages. However, counsel contends that the second
plaintiff can claim reimbursement of the cost of some of these mechanical
aids and appliances under her terms of employment with the government.
Though the defendants’ witness, Dr Sharon Anne Khor (DW1), said that she
had supported the approval the application for purchase of some of these
I
mechanical aid, up to conclusion of the trial no evidence was adduced
regarding the government’s intention to refund the expenses incurred. In any
event, if I were to allow this head of claim, the second plaintiff would be
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 841

A precluded from making a double claim to the government under her

employment perks. The government would have to pay this sum in any
which way. Therefore, I allowed the sum of RM5,000 under this head of claim.
Diapers, Wipes And Creams
B [43] Nurul Husna’s mother had testified that Nurul Husna is both bowel
and bladder incontinent and that Nurul Husna requires about 10-15 diapers
a day in addition to wipes and creams. PW1 said that she spends the sum
of RM500 per month on such expenses. (See answers to Q 93, 96, 97 and
98 of witness statement of Dr Nor Azalina Binti Mohd Songib). This claim
C
is supported by some bills and receipts, though not complete. The total claim
under this head would be RM500 per month x 89 months = RM 44,500.
[44] Counsel for the defendants submits that any child, whether normal or
disabled such as Nurul Husna would need diapers, wipes and creams only
up till three years old. I cannot accept that contention. It is evident from
D evidence adduced that Nurul Husna who is now eight years old is still both
bowel and urine incontinent and thus she would require diapers and wipes
and cream. This is a necessary expense and would have been incurred.
Counsel for the defendants further states that since there is no complete
evidence in support of this claim, a sum of RM300 per month would be more
appropriate. Having considered the evidence, I was of the opinion that the
E
sum claimed by the first plaintiff was reasonable in the circumstance. For
reasons stated earlier, the fact that the plaintiffs could not give a complete
set of bills and receipts for this item cannot be a reason to lower the claim.
The court would have to assess what would have been the reasonable needs
of the first plaintiff. In this regard I find that the claim for RM44,500 is
F
reasonable and so I awarded the same.
Medicines, Syringes And Gauze
[45] Nurul Husna’s parents had incurred expenses in purchasing gauze,
plasters, creams, gastrostomy feeding tubes and syringes. The pleaded sum
G under this head of damages is RM300 per month and the total works out to
be RM300 per month x 89 months = RM26,700. Counsel for the plaintiffs
submits that this sum is reasonable. However, counsel for the defendants
whilst conceding that such expenses would have been incurred, submits that
the amount of RM100 per month is more reasonable. However, defendants’
H counsel has not proffered any cogent reason as to why the sum claimed
should be reduced to RM100 a month. As such, I allowed the claim of
RM26,700 under this head.
Traditional Massage Therapy
[46] Nurul Husna’s parents gave unchallenged evidence of taking her for
I
traditional massage therapy. Associate Professor Dr Lydia (PW3) had
mentioned in her expert report that complementary and alternative medical
therapy brings benefit to persons suffering from cerebral palsy. PW1 stated
842 Current Law Journal [2015] 1 CLJ

that these therapies cost RM60 per month. The total claimed under this head A
is RM60 x 89 months = RM5,340. Counsel for the defendants submits that
there ought to be a 1/3 deduction for this head of claim. However, no reason
is given as to why there should be this 1/3 deduction. In the premise, I find that
the claim of RM5,340 under this head is reasonable and I allowed the same.
B
Travelling Expenses
[47] There is uncontroverted evidence that following her birth Nurul
Husna first lived in the Klang Valley with her parents. Following transfer of
her mother to Johor Bahru Hospital in January 2012, Nurul Husna lives with
her mother in her grandparents’ home in Johor whilst her father stays in C
Kuala Lumpur and commutes to Johor the weekends. From time to time her
parents had to travel long distances so that the family could be together.
[48] It is not denied that Nurul Husna had to travel to hospitals, private
therapy centres, Pusat Dalam Komuniti (PDK) Centres, the Johor Spastic
Centre and traditional massage therapy centres for her treatment and D
rehabilitation. Her parents had to travel to various places to purchase various
items for Nurul Husna for example to purchase medicines, appliances and
equipment, diapers, wipes and creams. Her parents had to travel to
employment agencies for the purposes of employing maids. Nurul Husna’s
mother had prepared a table regarding the travel undertaken which was
E
marked as exh. “P5”.
[49] Counsel for the plaintiffs submits that taking into consideration the
amount of travelling undertaken it would be reasonable to estimate the cost
of travelling to be in the sum of RM500 per month, which over a period of
89 months would work out to a total of RM44,500. F
[50] Counsel for the defendants submits that there ought to be a 1/3
deduction as these travel expenses would not be solely incurred for Nurul
Husna or her needs. Having considered the evidence in particular the chart
prepared by PW1 and marked as exh. “P5”, I was of the view that these travel
expenses were for Nurul Husna and therefore I allowed the total claim of G
RM44,500 in full.
Cost Of Care By Maid
[51] Nurul Husna’s family had always employed a foreign maid to care for
her since shortly after her birth, beginning December 2005. About five H
different maids had looked after her for different periods up to trial. These
foreign maids are not trained and do not look forward to taking care of
cerebral palsy children, like Nurul Husna. Often enough foreign maids
abscond for various reasons, including the stress of work. Nurul Husna’s
mother had testified on the difficulties faced in caring for Nurul Husna and
I
that both she and the maid are extremely tired at night. (See answer to Q 34
of witness statement of Nor Azalina Binti Mohd Songib.) Further, Nurul
Husna’s parents have to pay the maid agency fees, government levies and
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 843

A foreign agency recruitment fee in addition to the salary of the foreign maid.
Nurul Husna’s parents will also have to bear the cost of providing food,
accommodation, travel expenses, and medical care to the maid.
[52] Counsel for plaintiffs submits that it would therefore be reasonable to
estimate the cost of employing a maid to be in the sum of RM1,350 per
B
month. Therefore from December 2005 till filing of the writ that would work
out to RM1,350 per month x 85 months = RM114,750.
[53] Counsel for the defendants on the other hand estimates that the
monthly cost of employing a maid would be about RM1,000 a month.
C
Counsel further submits that the maid would not be solely looking after
Nurul Husna and that she would have also been required to do other
household duties. As such counsel argues that there ought to be a deduction
of 1/4 from the total amount. Thus, counsel for the defendants proposes the
sum under this head be RM1,000 x 108 months x 1/4 = RM27,000. Having
considered both arguments, and based on the documentary evidence at pp. 47,
D
49, 51 and 55 of bundle B and the oral evidence of PW1 and PW2, I am
satisfied that the monthly cost of employing a maid is more in the region of
RM1,350 as submitted and I am also convinced that the maid was used solely
for the benefit of Nurul Husna. In fact the reason why PW1 shifted to Johor
Bahru and live in her parents low cost home was so that she could get
E extended family support in taking care of Nurul Husna. Therefore, it is clear
that the support of this maid alone was not sufficient to take care of Nurul
Husna. Therefore, I find that the suggestion that the maid must have
necessarily done work for other members of the family that warrants this 1/4
deduction is without merit. In the circumstance I allowed the sum of
F RM114,750 claimed under this head.
Cost Of Care By Family Members
[54] The principle that gratuitous care of disable persons by family
members can be quantified on a commercial basis and compensated in
damages was reiterated by VC George JCA in Tan Cheong Poh & Anor v. Teoh
G
Ah Keow [1996] 3 CLJ 665 at p. 682; [1995] 3 MLJ 89 p. 102 where he had
said as follows:
No doubt the plaintiff’s mother has been providing her services free of
charge to her handicapped daughter but the courts have always
compensated plaintiffs for the true value of the services that the plaintiff
H
needs even though it is provided by a parent or other relative.
[55] Nurul Husna’s mother had testified in detail as to the nature and extent
regarding the care that she provides to Nurul Husna. The following evidence
of Nurul Husna’s mother in her witness statement (PWS1) is very telling and
I
relevant:
Q28: Has Nurul Husna’s condition affected your career? If yes, how?
- Yes
844 Current Law Journal [2015] 1 CLJ

- Less sleep at night causing sleepiness and tiredness, affects A

performance at work.
- Have to use time off from work two to four times in a month
for three hours each time to bring Husna to therapy and
appointment. Has to come back and work during lunch or
weekends to settle my works. B
- Also have to use my rest leave for Husna’s hospital
appointment or if Husna or her carer is sick. No daycare willing
to take care of Husna if the carer is sick. My parents cannot carry
Husna as they are not quite well and Husna is quite heavy.
- My mother is totally blind complicated by brain tumour and my C
father has underlying medical problem.
Q31: Does your husband help you in taking care of Nurul Husna?
Yes. When I was staying in KL, my husband and I take turn
to take leave or time off from work to bring Husna for hospital
appointment or therapy. D

Now that we are separated, Husna is totally handled by me in

JB. My husband comes back one to two times per months, on
weekend, spend time with us and gives us support and he will
never miss to bring Husna for outdoor activity.
E
Q34: Are you satisfied with the current arrangement?
- No
- For now, we only have one carer, she does get tired taking care
of Husna all day alone. And night time, we both tired as Husna
cannot sleep well. F
- I need to use my leave and working time for Husna’s therapy
as no weekend therapy provided by government.
- I have to handle Husna alone in JB as to follow my employer’s
order despite having special needs kid.
G
Q40: How many times have you taken leave or time off for Nurul
Husna’s purposes?
- For 2013:
- Leave for Husna’s purposes: 17 days
- Time-off for Husna’s purposes: 12 days H

*time off taken if there’s some one can cover me once I'm
away. Otherwise I have to take leave.
- Unpaid/Half pay leave:
2005 - 3 months. Husna just born. No carer willing to take care. I
2009 - 4 months. Husna underwent surgery for dislocated hip.
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 845

A [56] There is evidence that besides Nurul Husna’s parents, other family
members such as Nurul Husna’s maternal grandparents also provide care to
Nurul Husna. Despite the fact that Nurul Husna has a full time maid to take
care of her, the experts agree that the parents would remain Nurul Husna’s
principal carers. This puts added strain on them.
B
[57] Counsel for the plaintiffs submits that the estimated value of the cost
of care provided by family members is RM1,000 per month, which over a
period of 89 months works out to RM89,000.
[58] Counsel for the defendants argue that there should not be any award
C
of damages under this head because there is no evidence that Nurul Husna’
grandparents had actively taken care of her.
[59] In considering both these argument, I am minded to observe that this
head of claim is not confined to the care given by Nurul Husna’ grandparents,
who admittedly are aged and ill with disabilities of their own. This head of
D claim also relates to the care given by Nurul Husna’s parents particularly her
mother who has to sacrifice her time and take leave from work to attend to
the needs of Nurul Husna. In this regard, I was of the opinion that the sum
of RM500 a month is reasonable. Thus, I allowed the sum of RM44,500
under this head of claim as being reasonable under the circumstance.
E Cost Of Airfare Of Maids
[60] There is evidence that Nurul Husna’s parents had incurred the sum of
RM741.90 on airfare for the foreign maids (see pp. 71, 78 and 79 of bundle
B). Counsel for the plaintiffs submits that this sum of RM741.90 should be
allowed in full. Whilst, counsel for the defendants argues that there ought to
F be a 1/4 deduction on grounds that the maids would not have solely attended
to the needs of Nurul Husna. For reasons discussed earlier, I did not accept this
argument and thus allowed the full sum of RM741.90 claimed under this head.
Additional Cost Of Holidays
G [61] Nurul Husna’s parents had testified as regards the additional expenses
incurred in taking Nurul Husna for holidays. This would include additional
work in preparing Nurul Husna’s dietary requirements, in taking along
Nurul Husna’s equipment and appliances, and in getting additional hotel
room for Nurul Husna’s carers. (See answer to Q 128 of witness statement
H of Dr Nor Azalina Binti Mohd Songib). The following evidence of Nurul
Husna’s mother in her witness statement (PWS1) is relevant:
Q68: What preparations need to be made for Nurul Husna's travelling
needs?
- Proper arrangement, chosen place must be disabled friendly.
I
- If requires flight, need to get disabled friendly facility with extra
cost.
- Extra room for carers.
846 Current Law Journal [2015] 1 CLJ

Q69: What items do you bring along when travelling with Nurul Husna? A

- Blended diets.
- A lot of clothes, handkerchief, wipes, creams, diapers.
- Numerous medicines.
- Porridge, milk, nestum. B

- Feeding tube and feeding equipments.

- Blender to blend porridge.
- In space tilt wheelchair.
C
- Feeding chair.
If requires night stay, we also needs to bring:
- cooker, rice and sometimes raw food to cook.
- syringes for feeding and medicines."
D
[62] Counsel for the plaintiffs argues that this is a well-recognised item of
damages and submits that the pleaded sum of RM3,000 per year as the
additional cost of holidays would be a reasonable. Thus, counsel submits that
the total sum under this head would be RM3,000 per year x 7 years =
RM21,000. Counsel for the defendants’ whilst conceding in principle, E
submits that the amount of RM150 a year be allowed. I was of the view that
the amount of RM150 was far too low and I allowed the sum of RM1,000
per year for a total of RM7,000, as being more reasonable.
Cost Of Air Conditioning, Special Clothes And Bed
[63] Nurul Husna’s parents had to buy special clothes, including bibs and F
napkins, and a bed and mattress for her. They had to fit an air-conditioner
in her room. Some of the bills and receipts for such claims are at pp. 46 to
56, and 62 of bundle B. Counsel for the plaintiffs submits that the pleaded
lump sum of RM5,000 would be reasonable for such expenses to be incurred
over a period of 89 months. Counsel for the defendants on the other and G
argues that no such award be allowed for lack of supporting evidence. I found
that there was some evidence in support of this claim, particularly at pp. 46
to 56, and 62 of bundle B. Therefore, I allowed the sum of RM5,000 as
claimed under this head.
[64] When these items of claim for special damages in the first period are H
totalled it works out to a total sum of RM345,031.90.
(ii) Special Damages For The Second Period (Pre-trial)
[65] The pre-trial period would cover the period from the date of the
statement of claim ie, 27 December 2012, to the date of judgment on I
assessment of damages on 27 April 2014, that is a period of 15 months. It
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 847

A was evident that in giving continued care to Nurul Husna her parents had
continued to incur expenses during the pre-trial period. Most of the heads of
claim are similar to that of the first period of claim and they include:
Medical Treatment And Hospital Admissions
B [66] There was evidence adduced that during the pre-trial period, Nurul
Husna continued to go to clinics and hospitals for treatment. Counsel for the
plaintiffs submits that a lump sum of RM3,000 would be appropriate for in-
patient admissions to hospitals and out-patient visits to general practitioner
clinics. This would be for a period of 15 months. Counsel for the defendants
C
argued that this sum ought not to be allowed. Having considered both
arguments, I was of the view that there indeed instances of Nurul Husna’s
parents incurring medical cost for in-patient and out-patient treatment and
the lump sum of RM5,000 claimed would be reasonable in the circumstance.
Thus, I allowed this claim for RM5,000.
D Special Food, Vitamins And Nutritional Supplements
[67] Based on the same earlier reasoning, where I awarded the sum of
RM500 a month under this head during the first period. I similarly awarded
the sum of RM500 per month for 15 months for a total sum of RM7,500.
Diapers, Wipes And Creams
E
[68] Based on the same reasoning that I had adopted for the first period of
assessment, I awarded the sum of RM500 per month for diapers, wipes and
creams over 15 months for a total of RM7,500.
Medicines, Syringes And Gauze
F
[69] Based on the same reasoning that I had adopted for the first period of
assessment, I awarded the sum of RM300 per month for 15 months for a total
of RM4,500.
Traditional Massage Therapy
G
[70] Based on the same reasoning that I had adopted for the first period of
assessment, I awarded the sum of RM60 per month for 15 months for a total
of RM900.
Travelling Expenses
H [71] Based on the same reasoning that I had adopted for the first period of
assessment, I awarded the sum of RM500 per month for 15 months for a total
of RM7,500.
Cost Of Care By Maid

I [72] Based on the same reasoning that I had adopted for the first period of
assessment, I awarded the sum of RM1350 per month for 15 months for a
total of RM20,250.
848 Current Law Journal [2015] 1 CLJ

Cost Of Care By Family Members A

[73] Based on the same reasoning that I had adopted for the first period of
assessment, I awarded the sum of RM500 per month for 15 months for a total
of RM7,500.
Additional Cost Of Holidays B
[74] Based on the same reasoning that I had adopted for the first period of
assessment, I awarded the sum of RM1,000.
Cost Of Purchase Of A Toyota Estima Motor Vehicle
[75] Nurul Husna’s parents had given evidence that they had purchased a C
second hand Toyota Estima for the purpose of Nurul Husna’s travelling
needs, including for her therapy sessions and follow-up consultations, and to
PDK and Johor Spastic Centre. The car that they had then was insufficient
to cater to the needs of Nurul Husna’s travels. Nurul Husna’s mother testified
that she had purchased the Toyota Estima so as to accommodate Nurul D
Husna’s wheelchair and to have enough room for Nurul Husna’s maid to
accompany her. Counsel for the plaintiffs acknowledge that Nurul Husna’s
mother also has use of the car, which according to counsel is incidental.
However, in this regards, counsel proposed that a one-half deduction be
made from the purchase price of the Toyota Estima to take into account the
E
use by Nurul Husna’s mother. Thus, the plaintiffs’ claim under this head was
RM180,000 x 1/2 = RM90,000. This I found it to be reasonable and I
allowed the sum of RM90,000.
[76] Counsel for the plaintiffs also submitted that following Nurul Husna’s
mother’s transfer to Johor Bahru in January 2012, the travelling expenses for F
Nurul Husna have increased. The following travelling was undertaken for
Nurul Husna’s needs:
Distance
(two-way)
40.1. Follow-up consultation at G
Hospital Sultanah Aminah 50 km
40.2. Rehabilitation consultation at
Hospital Sultan Ismail 20 km
40.3. Traditional massage in Johor Bahru 50 km
H
40.4. Rehabilitation at Johor Bahru
Spastic Centre 50 km
40.5. Private physiotherapy at
GreatlifePhysio 100 km
[77] Counsel submitted that Nurul Husna should be awarded the further I
sum of RM800 per month as the cost of petrol, insurance, road tax, toll and
parking charges, and wear and tear and repairs of the car. I did not allow this
claim as I had already awarded the sum of RM500 as cost of transport and
travel.
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 849

A Cost Of Private Physiotherapy

[78] The evidence shows that beginning March 2013 Nurul Husna has been
attending physiotherapy, occupational therapy and speech therapy at Johor
Bahru Spastic Centre at the cost of RM40 per month and that over a period
of 12 months works out to RM480. Nurul Husna’s mother had also testified
B
that she was taking Nurul Husna to a private therapy centre called Greatlife
Physio every weekend at the cost of RM300 per month beginning November
2013 which over a period of four months totals RM1,200. These additional
therapy sessions were warranted and were beneficial to Nurul Husna. Thus,
I allowed both these claims for the total sum of RM1,680.
C
[79] When all these items of claim for pre-trial damages are added up they
total to RM151,330.
(iii) General Damages – Pain And Suffering Pain And The Loss Of Amenities Of Life
[80] The medical reports found in the bundles set out the following
D regarding Nurul Husna’s health:
(i) Severe metabolic acidosis at birth;
(ii) Intractable seizures at 15 hours of life;
(iii) Lumbar puncture done on day three of life;
E
(iv) Admitted to NICU for 26 days;
(v) Feeding by Ryles tube;
(vi) Infantile epilepsy requiring anti convulsant medication;
F (vii) Cortical visual impairment;
(viii) Gastrostomy operation done for insertion of feeding tube into the
stomach at nine months of life;
(ix) Revised operation with button gastrostomy at three years of life;
G (x) Severe gastroesophageal reflux problem requiring anti-reflux
medication;
(xi) Frequent constipation due to gastrostomy feeding requiring ravin
enema for voiding of bowel;
H (xii) Recurrent myoclonic seizures;
(xiii) Irreversible spastic quadriplegic, cerebral palsy and global
developmental delay; and
(xiv) Hip dislocation and its subsequent replacement surgery.
I [81] Nurul Husna is alive to her surroundings but her body and mind are
trapped as a result of the severe and irreversible brain damage. She is totally
dependent on others for her everyday needs.
850 Current Law Journal [2015] 1 CLJ

[82] In Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin & Ors And Another A
Appeal [2013] 8 CLJ 449 the sum of RM350,000 was awarded for such head
of damages. In the draft Revised Compendium of Personal Injuries Awards
prepared by the Bar Council the sum of RM385,000 has been proposed for
such award. In this regard, counsel for the plaintiffs propose that the sum of
RM400,000 would be a reasonable and realistic sum to award for such B
damage. Counsel for the defendants submit that the sum of RM350,000
awarded in Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin & Ors And
Another Appeal would be the proper benchmark. Having considered the
factual circumstance and the law, I agreed with submissions of counsel for
the defendants and had decided to follow the precedent in Gleneagles Hospital C
(KL) Sdn Bhd v. Chung Chu Yin & Ors And Another Appeal. Thus, I awarded
the sum of RM350,000 as general damages for pain and suffering and loss
of amenities of life.
(iv) General Damages – Cost of Future Care
D
[83] I will now move on to the issue of the future needs of Nurul Husna.
The award of future damages or cost of future care in Malaysia is done on
a once-and-for-all assessment basis, unlike in England where damages may
be assessed periodically, following judgment on liability. Thus, in Malaysia
the victim cannot return to court in the future to claim more damages because
his or her injuries have worsened, or if unexpectedly the victim has more E
needs and the original award had proved inadequate.
[84] In Lim Poh Choo v. Camden and Islington Area Health Authority [1979]
2 All ER 910 at p. 914 Lord Scarman when commenting on the practice of
assessing damages on a once-and-for-all basis made a very telling observation
F
in the following words:
There is really only one certainty: the future will prove the award to be
either too high or too low.
[85] Thus, in making this once and for all assessment, courts are invariably
guided by the opinions of experts and in this regard the court must see that G
the expert opinion is reasonable, responsible and respectable; and that it
stands up to a logical analysis. (See Bolitho v. City Hackney Health Authority
[1997] 4 All ER 771). The future exigencies of the plaintiff’s needs are best
determined by educated and well informed surmises and postulations by
experts in that field. The courts have had regard to well established principles H
in trying to make a reasoned and well informed award of future damages. The
standard of proof regarding future damages is not the balance of probabilities
but the possibility or danger of some adverse future developments. See
Hawkins v. New Mendip Engineering Ltd [1966] 3 All ER 228, CA; and
Schrump Et Al v. Koot Et Al Lexsee [1977] 18 OR (2d) 337, where the Canadian
I
Court of Appeal said as follows:
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 851

A ... In assessing damages for personal injuries the award may cover not
only all injuries actually suffered and disabilities proved as of the date of
trial, but also the “risk” of “likehood” of future developments attributable
to such injuries. It is not the law that a plaintiff must prove on a balance
of probabilities the probability of future damage: he may be compensated
if he proves in accordance with the degree of proof required in civil
B matters that there is a possibility or a danger of some adverse future
development.
[86] Now, having settled the general principles of assessment of future
damages, I will move on to the assessment proper. In determining the cost
of Nurul Husna’s future needs, the court must take into account that there
C are likely to be various changes in Nurul Husna’s life, including in regard
to her carers and surroundings. It is a given that Nurul Husna’s parents are
likely to move from one place of residence to another as and when there are
changes in their careers or when the circumstance demands it. Whatever
changes to their lifestyles would be subject to Nurul Husna’s condition and
D special needs.
[87] To assist the court in making this onerous determination, the plaintiffs
have called two independent experts. They are Associate Professor Dr Lydia
Abdul Latif (PW3), a consultant rehabilitation physician from the University
of Malaya and Dato’ Dr Balwant Singh Bains (PW4) private consultant
E physiotherapist. The defendants on the other hand called Dr Sharon Anne
Khor Keat Sim (DW1) a consultant rehabilitation physician from the Johor
Bahru Hospital as their expert witness.
Determination Of The Multiplier
F [88] The multiplier is a crucial component in determining the amount of
damages to be awarded as future cost of care. The multiplier is derived by
having regard to the life expectancy of Nurul Husna. Associate Professor Dr
Lydia Abdul Latif (PW3) had estimated Nurul Husna’s life expectancy to be
between 30 to 40 years but in cross-examination said that she was willing to
G accept as a compromise a life expectancy of 35 years. PW3 had in the course
of her evidence stated that she has seen one patient of similar disability to
that of Nurul Husna living to the age of 59. I accept that with better access
to medical care and improvements in the care of patients such as Nurul
Husna it is more probable than not that the life expectancy of such persons
would be far more than what it used to be.
H
[89] Counsel for the plaintiffs submits the court should give to Nurul
Husna’s the benefit of any doubt regarding her life expectancy. Counsel had
based that submissions on the fact that in Malaysia where damages are
assessed on a once-and-for-all basis Nurul Husna cannot return later to seek
I more damages if time proves the award to be too low by reason of her longer
than expected life expectancy. Therefore, counsel argues that applying the
principles in Lim Poh Choo and Schrump et al, the court should take the higher
estimated life expectancy in deciding on the multiplier. Counsel further
852 Current Law Journal [2015] 1 CLJ

submits that since only time will tell if too much or too little is given it would A
be prudent to accept a life expectancy of 40 years, which would give a
multiplier of 22 years calculated as follows:
40 (life expectancy) – 8 (current age) – 1/3 for contingencies = 21.333 years
~22 years B
[90] Counsel for the defendants on the other hand suggests that a life
expectancy of 30 years be taken as their expert had stated in her witness
statement that Nurul Husna has a 25% probability of surviving to age 30 and
her prognosis was guarded because in her observation:
... the first plaintiff did not achieve basic developmental milestones of C
lifting her in prone, in addition to having risk factors associated with poor
survival such as seizures, need for feeding tube, dysphagia, visual impairment,
cognitive impairment, gastrointestinal complications such as gastroesophageal
reflux disease, bowel incontinence, balder incontinence and scoliosis.
Therefore, counsel for the defendants submits that the multiplier ought be 15 D
by taking into account a life expectancy of 30 years, calculated as follows:
30 (life expectancy) – 8 (current age) – 1/3 for contingencies = 14.66 years
~15 years
[91] Both counsel are agreed on the 1/3 deduction for contingencies as E
settled by the Court of Appeal in Takong Tabari v. Government of Sarawak &
Ors & Another Appeal [1998] 4 CLJ 589; [1998] 4 MLJ 512 CA. I agree with
submissions of counsel for the plaintiffs that since a one-third deduction has
been made for contingencies in deriving the multiplier, no further deduction
should be made when assessing the damages to be awarded to Nurul Husna. F
[92] Having considered the arguments and the evidence and opinion of the
experts, I find that the median between 30 years and 40 years, ie, 35 years
would be a good postulation to make in respect of Nurul Husna’s life
expectancy. That would be fair and reasonable. In fact PW3 Dr Lydia had
agreed that though she thought that Nurul Husna can live for up to 40 years, G
she would be prepared to settle for 35 years. Thus the calculation of the
multiplier would be as follows:
35 (life expectancy) – 8 (current age) – 1/3 for contingencies = 18 years
(v) General Damages – Cost Of Future Care H
[93] The awards for future general damages sought are categorised under
the following heads:
(a) Cost of two carers – maids;
(b) Cost of care provided by family members; I
(c) Cost of travelling on a modified disabled friendly vehicle;
(d) Cost of a disabled friendly home;
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 853

A (e) Cost of diapers, wipes and creams;

(f) Cost of nutrition, food and supplements;
(g) Cost of machines, appliances and equipment;
(h) Cost of medication, syringes and gauze;
B
(i) Cost of physiotherapy;
(j) Cost of occupational therapy;
(k) Cost of speech therapy;
C (l) Cost of botox injections;
(m) Cost of medical treatment and hospital admissions;
(n) Additional cost of holidays and respite care;
(o) Cost of education of carers;
D
(p) Cost of future surgery;
(q) Damages for future pain and suffering from such surgery;
(r) Cost of education to train for living skills; and

E (t) Cost of future accommodation and living expenses for Nurul in

adulthood.
Cost Of Two Carers
[94] Nurul Husna’s mother during her testimony explained the difficulties
faced by one maid in attending to Nurul Husna’s special needs and expressed
F
her need for two maids. The following evidence of Nurul Husna’s mother in
her witness statement (PWS1) is relevant:
Q34: Are you satisfied with the current arrangement?
- No
G
- For now, we only have one carer, she does tired taking care
of Husna all day alone. And night time, we both tired as Husna
cannot sleep well.
- I need to use my leave and working time for Husna’s therapy
as no weekend therapy provided by government.
H
- I have to handle Husna alone in JB as to follow my employer’s
order despite having special needs kid.
Q37: Is one carer enough?
No.
I
Q38: Please explain.
Husna must have two carers at one time because
854 Current Law Journal [2015] 1 CLJ

- She requires full attention due to spasm and reflux that she A
has. At night, she cannot sleep well. One carer to handle the
24 hours job is tiring. This is admitted by few of Husna’s
previous carers. With two carers, they can take turn alternate
day which will reduce their stress.
- Husna will need one person attended to her specifically for B
therapy every day. 1 carer tend to do other things rather than
concentrate on Husna although we told them not to. Sitting
and doing same thing for 24 hours and 360 days per year is so
stressful and boring.
- More than one person required to accompany Husna in the car
C
while I’m driving.
- Two person required to lift up the tilt in space wheelchair into
the car and to bring it out of the car while another person need
to taking care of Husna in the car.
[95] From the evidence adduced it was clear that taking care of Nurul D
Husna is exhausting, stressful and depressing. Her carers are likely to suffer
from carer fatigue. Nurul Husna’s mother had testified that her career has
been adversely affected as a result of caring for Nurul Husna. Nurul Husna’s
mother had also complained of feeling sleepy and tired at work whenever she
had to stay up late at night to attend to Nurul Husna. (See: answer to Q 28
E
of witness statement of Dr Nor Azalina Binti Mohd Songib).
[96] Counsel for the plaintiffs further submits that it is also not denied that
the maids employed to take care of Nurul Husna will have to be trained and
retrained. The evidence adduced does indicate that it would be difficult to
get a single maid who is willing to undertake the task of caring for a severely F
brain-damaged child. I accept the contention that Nurul Husna and her
parents should not be left stranded if a single maid resigns, absconds or falls
ill. Nurul Husna’s parents should be freed of this burden so as to allow them
to concentrate on their respective careers and on their other child.
[97] There is legal precedent for the award of two maids when the G
circumstance requires or permits it. In Raja Zam Zam v. Vaithiyanathan
[1965] 1 LNS 145; [1965] 2 MLJ 252 Azlan Shah J (as His Royal Highness
then was) awarded the claimant the cost of engaging two maids following
injuries suffered by the claimant.
[98] Counsel for the plaintiffs concedes that the second maid is also likely H
to undertake incidental work not related to Nurul Husna. Therefore, counsel
suggests that Nurul Husna should be awarded the full cost of one maid and
one-third cost of the second maid. Counsel submits that if this formula is
allowed then the cost of the first maidwould be RM1,350 per month x 264
months (multiplier of 22 years) = RM356,400 and the cost of the second I
maid would be one-third cost of the first maid which would amount to
RM356,400 x 1/3 = RM118,800.
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 855

A [99] Counsel for the defendants submits that in this case one carer is good
enough if that maid is confined solely for Nurul Husna’s needs. Counsel
suggests that the maid can be relieved to take rest by Nurul Husna’s parents.
Therefore, counsel submits that the cost of one carer should be RM800 a
month x 180 months (multiplier of 15 years) = RM144,000.
B
[100] Since I have already found that the reasonable cost of a maid is
RM1,350, I would have to disagree with the submissions of counsel for the
defendants that RM800 would be the cost of a maid. Further, in deciding the
rate to be used, no allowance is made for any increase in wages for the future.
I would have to agree with submissions of counsel for the plaintiffs that a fair
C and reasonable monthly cost of a maid is RM1,350. Further, I have also
fixed the multiplier at 18 years of purchase. The only remaining issue is
whether Nurul Husna’s needs and the needs of her parents in taking care of
her would be best served by one or two maids. In considering this issue, I
am minded of the fact that Nurul Husna’s parents find it extremely difficult
D to take care of Nurul Husna. The difficulties, trials and tribulations presented
by Nurul Husna as she grows older would increase and would pose a great
challenge to her carers and parents. At the same time, Nurul Husna’s parents
should also be allowed to live as a normal a life as they can and to prosper
in their career. They should be allowed time for themselves and to get some
E
respite from the trials and tribulations that they encounter in the care of
Nurul Husna. The parents should also be given the opportunity to devote
time and care to their other child. Therefore, when all these factors are
considered, I found that it would be best that two maids take care of Nurul
Husna on a roster basis so that it does not become too strenuous for the
maids. This would also eliminate short turnover of maids or the incidence
F
of them absconding. Quick turn over of the maids would mean the training
and retraining of new maids which would pose an added strain on Nurul
Husna as well as her parents. I also accept the concession by counsel of the
plaintiffs that only 1/3 of the cost of the second maid be allowed as the
second maid would also be doing other household chores when not taking
G care of Nurul Husna. In this regard, my calculation of the cost of these two
maids would be:
(a) Cost of the first maid:
RM1,350 per month x 216 months = RM291,600; and
H (b) Cost of the second maid:
RM291,600 x 1/3 = RM97,200.
The total cost of these two maids would thus be RM291,600 + RM97,200
= RM388,800.
I
856 Current Law Journal [2015] 1 CLJ

Cost Of Disabled-Friendly Motor Vehicle A

[101] Nurul Husna’s mother had given unchallenged evidence that the
Toyota Estima she had purchased and used for Nurul Husna’s travel is not
suitable to be fitted with a chairlift and ramp recommended by the experts
so as to be able to push the wheelchair into the car with Nurul Husna sitting
B
in it. All the expert witnesses were of the view that Nurul Husna will require
a multi-purpose vehicle that has been modified to accommodate Nurul
Husna in her wheelchair and for her carers to be seated as well.
[102] Associate Professor Dr Lydia (PW3) had given the cost of such
vehicle at RM140,000 inclusive of modifications. Dato’ Dr Bains (PW4) had C
estimated the cost of such vehicle to be between RM130,000 and RM180,000
and valued the cost of modifications at RM30,000 with its yearly maintenance
cost of RM500. Dr Sharon Anne Khor (DW1) the defendants’ expert suggests
that a Toyota Hiace can be used with the appropriate modification. The estimate
of her cost for such a vehicle is also in the region of RM140,000.
D
[103] The plaintiffs counsel submits that the cost of such a vehicle be fixed
at RM150,000 with three renewals totalling RM450,000.
[104] From the arguments, I found cogent reasons for me to allow the cost
of this specialised vehicle at the price of RM150,000 with three renewals.
However, in doing so I made a 1/3 deduction as the renewals would result E
in the previous vehicle having a trade-in residual value. Therefore, I allowed
the sum of RM300,000 under this head.
Cost Of Care Provided By Family Members
[105] Nurul Husna’s mother will remain her principal carer irrespective of F
the employment of two maids. There would be continued care provided by
other members of the family. I have decided earlier to allow the sum of
RM500 as the cost of care provided by family members. Therefore, over the
18 years multiplier that would amount to RM500 per month x 216 months
= RM108,000. I allowed this sum of RM108,000 under this head.
G
Cost Of Renovations For Disable-friendly Home
[106] The defendants do not dispute the fact that Nurul Husna would need
a disabled-friendly home. The defendants’ counsel submits that the sum of
RM50,000 would suffice to adequately modify and renovate Nurul Husna’
parents’ home to make it disable-friendly. H

[107] Counsel for the plaintiffs, on the other hand, submits that Nurul
Husna’s parents will have to purchase a house at their own cost and expense
and then renovate it to make it disable-friendly. Dato’ Dr Bains (PW4) had
given an estimate of RM150,000 to RM200,000 for the cost of such
I
renovations. Counsel for the plaintiffs submits that the sum of RM200,000
would be reasonable.
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 857

A [108] Evidence was adduced by PW1 and PW2 that they owned an
apartment in Kuala Lumpur. This high rise apartment is serviced by
elevators and has adequate space for Nurul Husna and her immediate family
to reside. I find that this apartment can be renovated at a cost of RM100,000
to make it wheelchair and disable friendly for Nurul Husna’s everyday
B needs. Therefore, I allowed the sum of RM100,000 under this head.
Diapers, Wipes And Creams
[109] The need for Nurul Husna to use diapers, wipes and creams her
entire life cannot be denied. As she grows older I recognise that she will need
C
adult diapers, which are more expensive. Both counsel propose the monthly
sum of RM500 under this cost item. As I had earlier allowed the sum of
RM500 per month for this head of damages, I allowed the sum of
RM108,000 under this head, being RM500 per month x 216 months, ie, over
a period of 18 years of purchase.
D Special Food, Vitamins And Nutritional Supplements
[110] Counsel for the defendants concedes that Nurul Husna will always
need specially prepared food, vitamins and other supplements. Defendants’
counsel has proposed a monthly sum of RM500 and the plaintiffs’ counsel
has also proposed the sum of RM500 per month. Their total sum differs
E because of the different multiplier. I have accepted the sum of RM500 per
month as being reasonable and awarded it for 18 years. Therefore the total
amount under this head would be RM500 x 216 months = RM108,000.
Machines, Appliances And Equipment

F [111] Counsel for the plaintiffs submits that the experts had proposed a
range of equipment for Nurul’s needs. These equipment will have to be
serviced, repaired and where necessary replaced. The requirement for such
machines, appliances and equipment will vary from time to time. Given
below is the table of the proposals made by each expert:
G Associate Professor Dr Lydia
Category Items Estimated Product Life Number of
Cost (RM) span (years) Renewals
Positioning Positioning 5,000 10 3
seating devices
H system Seating system 5,000 5 5
Wheelchair Tilt in space 6,000 5 5
and Wheelchair 1,000 2 11
accessories inserts
Orthotic Bilateral ankle 800 2 11
I foot arthosis
858 Current Law Journal [2015] 1 CLJ

Activities of Shower/commode 400 5 5 A

daily living chair
aids Hoist 5,000 10 3
Therapy aids Exercise ball 500 2 11
Exercise mats 500 5 5
Swings 1,000 5 5 B
Toys and tools 500 - -
Total (inclusive of renewals) 120,300

Dato’ Dr Bains
C
Category Items Estimated Product Life Number of
Cost (RM) span (years) Renewals
Home therapy Reclining 4,000 4 6
and positioning wheelchair
Commode seat 4,500 5 5
D
Bolster & Foam 2,500 5 5
Wedges
Therapy ball 2,500 5 5
Floor seat 4,500 5 5
Snoezelen Maintenance: 80,000 Once in - E
therapy and RM2,000 Life Time
special therapy per year
area for home
therapy
Mobile Hoist Hoist 15,000 7 4
(when Nurul Cradle cloth 450 2 11 F
turns 25 kg)
Standers Standers 7,500 Once in -
Life Time
Valcro straps 350 3 8
Tilt Table Table 15,000 Once in - G
Life Time
Velcro 500 3 8
Walker 9,000 7 4
Foot orthosis Per Pair 1,500 5 5
H
Contractures Ankle support 750 2 11
splints (per pair)
(Life Long) Wrist support 700 2 11
(per pair)
Dynamic 12,000 5 5
Movement I
Orthosis
(DMO)
Total (inclusive of renewals) 387,700
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 859

A Dr Khor
Category Items Estimated Product Life Number of
Cost (RM) span (years) Renewals
Tilt in space Seating system 3,750 5 5
wheelchair inclusive of head,
B
trunk and pelvic
support with
butterfly harness
Standing
frame 3,700 5-10 5
C
Positioning Wedges, rolls 5,000 10 3
devices and mats
Bilateral
ankle 1,300 2 11
foot orthosis
D
Shower/ 3,000 5 5
Commode
chair
Total (inclusive of renewals) 81,550
E
[112] There is some overlap between the rehabilitation machines,
appliances and equipment recommended by Associate Professor Dr Lydia
(PW3) and Dato’ Dr Bains (PW4). Counsel for the plaintiffs submits that
Associate Professor Dr Lydia’s (PW3) and Dato’ Dr Bain’s (PW4) as shown
in the merged Table 1 below should be allowed:
F
Table 1
Category Items Estimated Product Life Number of
Cost (RM) span (years) Renewals
Positioning Positioning device 5,000 10 3
G seating Seating system 5,000 5 5
system Floor seat 4,500 5 5
Wheelchair Tilt in space 6,000 5 5
and Wheelchair 1,000 2 11
accessories inserts
H
Orthotic Bilateral ankle 800 2 11
foot orthosis
Contractures Ankle support 750 2 11
splints (per pair)
Wrist support 700 2 11
I
(per pair)
Activities of Shower/commode 400 5 5
daily living chair
aids Hoist 5,000 10 3
860 Current Law Journal [2015] 1 CLJ

Standers 7,500 Once a - A

life time
Velcro straps 350 3 8
Tilt table 15,000 Once a -
life time
Velcro 500 3 8
B
Walker 9,000 7 4
Therapy Exercise balls 500 2 11
aids
Exercise mats 500 5 5
Swings 1,000 5 5 C
Toys and Tools 500 Once a -
life time
Bolster & Form 2,500 5 5
wedges
Snoezelen therapy 80,000 Once a - D
life time
Dynamic Movement Orthosis 12,000 5 5
(DMO)
Total (inclusive of renewals) 376,550
E

[113] Based on the above, counsel for the plaintiffs submits that Nurul
Husna should therefore be awarded the sum of RM376,550 under this head
of damages.
[114] Counsel for the defendants submits that Nurul Husna being a child F
of a government employee (PW1), is entitled to free medical equipment
when they are recommended by a government doctor. Counsel for the
defendant submits that PW1 can buy the equipment first and then seek
reimbursement of the cost from the government. Thus, defendants’ counsel
submits that under this head of claim, the equipment recommended by Dr
G
Sharon Anne Khor can be bought by PW1 and then a claim for reimbursement
be made to the government. Therefore, counsel of the defendants submits
that there should be no sum awarded under this head.
[115] For reasons discussed much earlier, I am unable to accept that
contention. The fact that PW1 may be entitled under the terms of her service H
of employment with the government for free medical equipment approved by
a government doctor would not exclude the rights of the first plaintiff from
seeking compensation in this action. Whether the government pays the cost
of the equipment now or later is of no consequence to the present
determination, the bottom line is still that the government being vicariously
I
liable for the tortfeasors will have to pay for it. So long as there are safeguards
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 861

A against double claim, the issue that remains to be determined is the type and
quantity of equipment that is to be allowed. In this regard, I allowed all the
cost of the equipment in Table 1 above with the exception of the following items:
(i) Tilt table;
B (ii) Velcro;
(iii) Walker;
(iv) Snoezelen Therapy; and
(v) Dynamic Movement Orthosis.
C
[116] The result of this is that the total cost of equipment and its renewal
that was allowed came to the sum of RM260,050.
Medication, Syringes And Gauze
[117] Nurul Husna will continue to require feeding via the gastrostomy
D tube and will incur the sum of RM300 per month for the feeding tubes,
syringes and gauze. Therefore I allowed the sum of RM64,800 calculated
based on RM300 per month x 18 years = RM 64,800.
Physiotherapy, Speech And Occupational Therapy
E [118] Counsel for the defendant recognises that Nurul Husna will need
physiotherapy, speech therapy, occupational therapy and neuro-development
therapy. Nurul Husna’s mother has given unchallenged evidence of her
difficulties in getting such therapy in government hospitals. In fact Dr Sharon
Khor (DW1) admitted in court that despite Nurul Husna attending therapy
F
at Hospital Sultan Ismail for more than two years now, a therapy plan has
yet to be prepared to Nurul Husna. Therefore, counsel suggests that it is
easier to schedule such therapy sessions in private therapy centres to suit the
convenience of Nurul Husna’s parents and carers. Nurul Husna’s mother has
been taking her to a private physiotherapy centre in Ulu Tiram which is able
to provide therapy on weekends unlike the government centres.
G
[119] The following rates have been proposed as the cost of such therapy
by Dr Lydia (PW3) and Dato’ Dr Bains (PW4):
No. Dr Lydia Dato’ Dr Bains Duration/
(RM/visit) (RM/visit) Frequency
H
135.1 Physiotherapy
- Clinic visit 60 to 100 150 Once a week
- Home visit 350 Once a month
135.2 Occupational 60 to 100 200 to 500 Once a week
I therapy
135.3 Speech therapy 80 to 160 300 to 500 Once a month
862 Current Law Journal [2015] 1 CLJ

[120] In the circumstance, counsel for the plaintiffs submits that the A
following sums should be awarded for therapies:
RM
a. Physiotherapy
RM150 per visit x once a week x 22 years 158,400 B

b. Home visit by physiotherapist

RM350 per visit x once a month x 22 years 92,400
c. Occupational therapy
C
RM200 per visit x once a week x 22 years 211,200
d. Speech therapy
RM300 per visit x once a month x 22 years 79,200
Total 541,200 D

[121] Counsel for the defendants submits that the rates given by Dr Lydia
are more reasonable. As such I have adopted the rates proposed by Dr Lydia
and allowed the following claims under this head:
RM E
a. Physiotherapy
RM100 per visit x once a week x 18 years 93,600
b. Home visit by physiotherapist
F
RM200 per visit x once a month x 18 years 43,200
c. Occupational therapy
RM100 per visit x once a week x 18 years 93,600
d. Speech therapy G
RM160 per visit x once a month x 18 years 34,560
Total 264,960
Botox Injections
[122] It is not denied that Nurul Husna had in the past received botox H
injections to reduce the spasticity of her muscles. Counsel for the plaintiffs
submits that the cost of future Botox injections should be allowed and
included as a part of the award of damages for future medical treatment and
hospital admissions. Counsel for the defendants on the other hand argues that
no such expense be allowed as this treatment is available free of charge at I
government hospitals. I would not, for reasons discussed earlier, be able to
 Nurul Husna Muhammad Hafiz &
[2015] 1 CLJ Anor v. Kerajaan Malaysia & Ors 863

A accept defendants’ counsel’s contention. In this regard I would allow this

claim as part of the lump sum award for cost of future medical treatment and
hospital admissions.
Medical Treatment And Hospital Admissions
B [123] Once again counsel for the defendants submits that no award of
damages be made under this head as Nurul Husna can obtain treatment in the
government hospitals free of charge. Again for reasons that I have discussed
above, I accept the arguments of counsel for the plaintiffs that provisions for
Nurul Husna’s future medical needs ought not be hinged onto her mother’s
C
present contract of employment with the government nor to the prevailing
policies of the government or the vicissitudes of policy changes and the
charity of others. The experts recognise that Nurul Husna will need regular
and frequent multi-disciplinary out-patient consultations. She is readily
susceptible to infection. Counsel for the plaintiffs proposes a sum of
RM7,000 per year as reasonable estimate under this head of damages.
D
Whilst recognising that these are reasonably foreseeable expenses, I have
reduced the amount claimed to RM5,000 a year for 18 years of purchase,
thus totalling RM90,000. I also allowed the sum of RM30,000 as cost of
future surgery as there is evidence showing that there is great likelihood of
Nurul Husna needing surgical intervention for her hip dislocation and
E muscular contractures. Thus the total award under this head is RM120,000.
Additional Cost Of Holidays
[124] I have earlier recognised and allowed the sum of RM1,000 per year
for additional cost of holidays that would be occasioned for various reasons
F discussed earlier. Again I allowed this head of claim for 18 years for a total
of RM18,000.
Other Heads Of Claim
[125] The other heads of claims for cost of respite care, education of
caregivers, future pain and suffering, Nurul Husna’s education,
G
accommodation and living expenses in adulthood, and financial planning
services were disallowed.
[126] Thus the total award of damages would be as follows:
(i) Special damages RM345,031.90
H
(ii) Pre-trial damages RM151,330
(iii) General damages pain & suffering RM350,000
(iv) General damages – future care RM1,840,610
I Total RM2,686,971.90
864 Current Law Journal [2015] 1 CLJ

Interest and cost A

[127] Interest on the various heads of damages was awarded as follows:

(a) Interest on the special damages was fixed at 4% per annum from date
of incident;
(b) Interest on pre-trial damages was at the rate of 5% per annum from date B
of filing of the writ;
(c) Interest on damages for pain and suffering was fixed at 5% per annum
from date of writ; and
(d) Post-judgment interest from the date of admission and recording of C
liability was fixed at the rate of 5% per annum.
After hearing submissions on cost, I fixed cost at RM213,864.
[128] I further ordered that by virtue of provisions being made in the
judgment for Nurul Husna’s cost of future care, the second plaintiff would D
be precluded from making any claims for medical treatment or equipment for
Nurul Husna from the government by virtue of her terms of employment. I
also ordered that the award of damages, interest and cost be paid to Nurul
Husna’s parents as trustees for Nurul Husna.
E