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The Judgment of the Federal Court in Foo Fio Na v Dr Soo Fook Mun and Assunta Hospital [2007] 1 MLJ 593

The Federal Court in Foo Fio Na v Dr Soo Fook Mun and Assunta Hospital [2007] 1 MLJ 593 reversed the decision of the Court of Appeal. When doing so, it set out what it said were “facts … not disputed”. The true position is that the appeal was allowed on the basis of facts which were actually in dispute or in respect of which there was no evidence. Furthermore, the plaintiff had departed from her pleaded case that she had suffered spinal cord injuries in a motor vehicle accident after which she suffered paralysis. At trial, she alleged that her paralysis was caused by compression of the spinal cord by a surgical wire inserted by Dr Soo Fook Mun. That allegation was not pleaded. Even her own expert who was a consultant neurosurgeon did not support her allegation. Neither did other witnesses, medical or expert.

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The Right of Cross-Examination of an Adverse Party : When is a Party an Adverse Party to Another Party?

Sections 137 and 138 of the Evidence Act 1950 provide for “cross-examination” of a witness by “the adverse party”. These sections and other relevant sections of the Act apply to both criminal and civil cases.

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In 1954 John Hector Bolam who was suffering from mental illness was advised to undergo electro-convulsive therapy. He signed a consent form but was not advised of a one in 10,000 risk of fractures. No relaxant drugs were given and no manual control, save for support of his lower jaw was used. A male nurse had stood on each side of the treatment couch. In the course of his treatment Bolam suffered dislocation of both hips and fractures of the pelvis on both sides.

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