21 October 2025

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Introduction
The Court of Appeal, presided by YA Datuk Nantha Balan, YA Datuk Azimah Omar and YA Dato’ Ahmad Kamal in Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma A/L Karam Chand & Anor delivered a significant decision revisiting the principles governing the assessment of damages in medical negligence cases. The judgement provides important guidance on claims for pain and suffering, loss of dependency, and aggravated damages, reinforcing the need for strict evidential proof and adherence to statutory limits under the Civil Law Act 1956 (‘CLA 1956’).

Brief Facts of the Case
The deceased, Suman Rampal, aged 41, was admitted to Bukit Tinggi Medical Centre in May 2019 for severe abdominal pain. She was examined by Dr Prashanth Nambiar, who diagnosed her with a urinary tract infection and a relapse of nephrotic syndrome. She was discharged but later returned in critical condition and passed away the following day due to fulminant septic shock with acute renal failure.

The deceased’s estate and dependents filed a medical negligence action against both the hospital and the attending doctor, alleging a failure to properly diagnose and treat her condition. The High Court found both defendants liable and awarded RM1,083,235.62 in damages, comprising RM700,000 for aggravated damages, RM176,280 for loss of dependency, and RM100,000 for pain and suffering. Both defendants appealed, while the plaintiffs cross-appealed seeking an enhancement of the damages awarded.

Issues before the Court
The primary issues before the Court of Appeal were whether the High Court’s awards for pain and suffering, loss of dependency, and aggravated damages were supported by evidence and properly assessed, and whether aggravated damages are recoverable by an estate under s. 8 of the CLA 1956. The Court was also called to consider whether aggravated damages must be specifically pleaded and particularised.

The Appellate Court’s Decision
The Court of Appeal allowed the defendants’ appeal in part and revised the quantum of damages. In relation to pain and suffering, the Court reduced the award from RM100,000 to RM50,000, holding that while the deceased had suffered considerable pain and distress, the duration of conscious suffering was limited to approximately 24 hours. The award for pain and suffering must, therefore, be proportionate to both the intensity and duration of the pain endured.

The Court further set aside the award of RM176,280 for loss of dependency, finding that there was no evidence to show that the deceased contributed financially to her household. Her husband, who earned RM20,000 per month, was the sole provider. The Court underscored that dependency claims under s. 7(3) of the CLA 1956 must be supported by credible and cogent evidence of actual financial support. The “two-thirds of income” formula, the Court observed, was not a substitute for proof of real pecuniary loss and should not be applied mechanically in the absence of evidence.

The award of RM700,000 for aggravated damages was also set aside. The Court held that aggravated damages must be specifically pleaded, particularised, and proven, and that such damages are not recoverable by an estate under s. 8(2)(a) of the CLA 1956. The Court reaffirmed that aggravated damages are exceptional and compensatory in nature, awarded only where the defendant’s conduct aggravates the injury to the plaintiff’s dignity or emotional well-being. In this case, the plaintiffs had not pleaded nor particularised any facts supporting an aggravated damages claim.

In conclusion, the Court emphasised that damages in tort are compensatory and not punitive. Awards must be based on evidence and legal principle, not sympathy. The Court reiterated that judicial discretion in assessing quantum must remain grounded in statutory provisions and established legal standards.

Key Takeaways
The Court of Appeal’s decision provides detailed guidance on the proper assessment of dependency and aggravated damages. It reaffirms that claims under s. 7(3) of the CLA 1956 require strict proof of actual financial dependency. Courts should not rely on presumptions or formulas but instead assess the evidence presented to determine whether real pecuniary loss has been sustained.

On aggravated damages, the Court laid down several important principles. Firstly, it is imperative and mandatory that any claim for aggravated damages be expressly pleaded and properly particularised. The pleading must set out the facts and circumstances relied upon where the plaintiff asserts that his or her dignity, pride, or feelings have been injured. Secondly, the alleged injury to dignity or feelings must have occurred contemporaneously with the tortious act itself. Events occurring after the tort, including pre-litigation conduct or behaviour during litigation, cannot constitute aggravating circumstances.

Thirdly, while the estate of a deceased person may, in principle, claim aggravated damages, this is confined to conduct that occurred before the deceased’s death and only if the deceased was conscious and capable of perceiving the alleged aggravating behaviour. The estate therefore has no standing to sue for aggravated damages based on events or conduct occurring after death. Fourthly, the negligent act or omission of a tortfeasor must not be conflated with aggravating conduct, although the latter may occur contemporaneously with the negligent act. Conduct by the tortfeasor after the negligent event is irrelevant for the purpose of assessing aggravated damages. Lastly, the manner in which a defendant conducts his or her defence or pursues litigation strategy cannot form the basis for aggravated damages. Such conduct, if abusive, should instead be addressed through the Rules of Court 2012 and the Court’s inherent jurisdiction.

Overall, the Court reaffirmed that damages serve a compensatory, not punitive, purpose. Sympathy-driven awards undermine the integrity of the judicial process.

Author

Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.

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