8 March 2024
Siow Ching Yee v Columbia Asia Sdn Bhd: The Plaintiff succeeds in the Federal Court in a Medical Negligence Case against a Private Hospital after Failing in both the Courts below
Introduction
On 23 February 2024, in Federal Court Civil Appeal No. 02(f)-12-02/2023(B), the Court, by a majority of 4 to 1, reversed the respective decisions of the High Court and the Court of Appeal which had rejected a medical negligence claim brought against Columbia Asia Hospital - Puchong.
The claim was brought in the High Court against the Hospital, an ear, nose and throat surgeon, and an anaesthetist by a plaintiff suing by his wife and litigation representative. In 2010, the plaintiff had suffered massive brain damage and consequently permanent physical and mental disabilities in an anaesthetic accident in the Hospital before he was to undergo surgery.
The High Court had found negligence against the anaesthetist Dr Noor Asilah binti Abdul Rahman but dismissed the respective claims against the surgeon and the Hospital.
The Court of Appeal in a unanimous decision dismissed the plaintiff’s appeal as against the Hospital but allowed in part his appeal on quantum. There was no appeal pursued as against the surgeon.
Dr Asilah’s appeal was dismissed. Her expert’s opinion which was disclosed to the High Court and the other parties was not supportive of her defence. She did not call the expert to give evidence at trial.
The Court of Appeal did not deliver any grounds of judgment.
Quantum – Director’s Fees and Allowances as Earnings
As regards a certain component of quantum, the plaintiff had failed in both the Court of Appeal and the High Court but had succeeded in the Federal Court.
The High Court and the Court of Appeal had decided that the fees and allowances which the plaintiff could have received as a director of a company if not for the accident were not earnings in respect of which loss he could claim compensation despite evidence that the fees and allowances were declared as income to the Director General of Inland Revenue and were taxed.
Disagreeing, the Federal Court allowed the claim regarding the director’s fees and allowances. Regarding loss of earnings, the High Court had allowed only the claim concerning the plaintiff’s salary and the provident fund contributions as he was an employee of the companies concerned. In addition, the multiplicands concerned for computing earnings were increased by the Federal Court.
The Judgment Sum
Following the judgment of the Federal Court, the judgment sum, including costs, is now RM 4.5 million. There is also interest chargeable for various periods on various items of damages and the costs.
The Questions
Earlier, a total of seven questions were included in the order of the Federal Court when granting leave to appeal.
The Decision as Regards the Questions
In paragraph 96 of the judgment of the majority in the Federal Court, it was stated that there was no “need to specifically answer the questions as posed” in the light of “the deliberations as set out above.”
Set out below are the questions and in brackets the answers sought by the plaintiff: -
Question 1
Whether the owner and manager of a hospital is in law a provider of healthcare and owes a non-delegable duty of care to patients as stated by the English Court of Appeal in the post-Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 case of Hughes v Rattan [2022] EWCA Civ 107.
(“yes”)
Question 2
Whether the judgment of the Federal Court in Dr Kok Choong Seng regarding the tort of negligence in a private hospital applies where the owner and manager of the hospital owes separately duties of care in contract and by statute.
(“no”)
Question 3
Whether the owner and manager of a private hospital would be liable to patients under a non-delegable duty of care when a doctor practising in the hospital as an independent contractor has insufficient professional indemnity for malpractice.
(“yes”)
Question 4
If the answer is “yes”, whether the owner and manager, as a provider of healthcare, may escape liability for a breach of such duty of care committed by a doctor because the doctor is an independent contractor who has been engaged to practise in the hospital.
(“no”)
Question 5
Whether there is a statutory duty of care, independent of a duty in negligence or contract, owed by the owner and manager of a private hospital under the Private Healthcare Facilities and Services Act 1998 and the subsidiary legislation made thereunder?
(“yes”)
Question 6
Whether the fees received by a director of a company from the company are “earnings by his own labour or other gainful activity” under s. 28A(2)(c)(i) of the Civil Law Act 1956?
(“yes”)
Question 7
In light of the post-Dr Kok Choong Seng case of Armes v Nottinghamshire County Council [2018] 1 All ER 1 decided by the Supreme Court of the United Kingdom, whether after applying the 5-feature test in Woodland v Essex County Council [2014] 1 All ER 482, a Court must additionally apply the test of whether it is fair, just and reasonable to impose a non-delegable duty of care in the circumstances of the case?
(“no”)
Some Questions Appeared in Effect to Have Been Answered by the Majority
It appears from the judgment of the majority: -
- that question no. 1 was answered in the affirmative;
- that question no.2 was answered partly in the negative in that there was decided that there was a statutory non-delegable duty of care imposed upon the Hospital (a point which was not raised and was not addressed in Dr Kok Choong Seng);
- that question no. 3 was not addressed and was not answered;
- consequently, that question no. 4 was not addressed and was not answered;
- that question no. 5 was answered in the affirmative;
- that question no. 6 was answered in the affirmative; and
- that question no. 7 was answered in the negative.
The Answers in the Dissenting Judgment
The learned dissenting Judge declined to answer questions no. 1 to 4 and 6; answered question no. 5 in the negative; and answered question no. 6 in the affirmative.
Rejection of Hospital’s Claim for an Indemnity against Dr Asilah
The majority in the Court also rejected the Hospital’s claim for an indemnity against Dr Asilah. The two reasons given for rejecting it were: -
- that Dr Asilah was not a party to the appeal; and
- that the Hospital “owes a non-delegable duty of care and it remains liable regardless to whom it may have employed or engaged to carry out that duty of care”; and that “the principle imposes a personal liability on the respondent, over and above that against the tortfeasor.”
The learned dissenting Judge did not address the Hospital’s claim for an indemnity.
Counsel and Solicitors
The following were the counsel and solicitors involved in the appeal to the Federal Court:-
- P S Ranjan (Manmohan Singh Dhillon, Karthi Kanthabalan and Desmond Mun with him) for the plaintiff, the Appellant
Solicitors: P S Ranjan & Co.; - Ambiga Sreenevasan (T. Tharumarajah, Janini a/p P R. Rajeswaran, Amos Siew Yin Jhien and Anishaa Sundramoorthy with her) for the Hospital, the Respondent
Solicitors: Azim, Tunku Farik & Wong; - Malik Imtiaz Sarwar (Felix Raj, Joseph Lum and Khoo Suk Chye with him), as amici curiae for the Association of Private Hospitals of Malaysia
Solicitors: Felix Raj Chambers; and - Gurdial Singh Nijar (Jessica Ram Binwani and Abraham Au Tian Hui with him), as amici curiae for the Consumers Association of Penang
Solicitors: Kanesh Sundrum & Co.
More to Come
A more detailed analysis of the case is planned.
