CATASTROPHIC SPINAL CORD INJURIES BABY A v GOVERNMENT OF MALAYSIA
Baby A was delivered on 15 May 2020 following an emergency lower segment Caesarean section undertaken at Selayang Hospital. The doctor who had delivered Baby A had failed to take sufficient and adequate precautions not to injure her spinal cord when undertaking the breech extraction during the Caesarean section.
The spinal cord injuries caused oedema of her spinal cord at levels C4 to C6 and which caused Baby A to be paralysed from her nipples downwards. She has to breathe with the assistance of a tracheostomy.
The claim in medical negligence was filed on 15 September 2021. The Government of Malaysia had admitted liability on 26 July 2022 and in exchange Baby A dropped her claim against the 18 doctors who had been named as Defendants. Baby A had named the doctors as Defendants because the Government had successfully argued in the Federal Court in Lay Kee Tee dan lain-lain lwn Kerajaan Malaysia dan lain-lain [2005] 3 MLJ 576 that the public officers tortfeasors must be named as defendants before a claim in negligence may be brought against the Government.
Following a trial on quantum the learned High Court Judge had awarded the sum of RM 5,467,387.91 as special, general and future damages and the sum of RM 150,000.00 as party and party costs.
The Government had appealed to the Court of Appeal to reduce the award of damages and Baby A had appealed to the Court of Appeal to increase the award of damages.
The Court of Appeal heard both appeals on 5 February 2024 and reserved its decision and on 24 March 2024 delivered its decision to dismiss the Government’s appeal and to allow in-part Baby A’s appeal. The Court of Appeal had increased the award of damages from RM 5,467,387.91 to RM 8,492,587.91 and increased the award of costs from RM 150,000.00 to RM 200,000.00. The usual awards for interest were also made by both the High Court and the Court of Appeal.
The Government did not seek leave to appeal to the Federal Court. The High Court Judge had delivered written grounds of judgment (see Nur Adeena bt Mohd Syahmir v Kerajaan Malaysia & Ors [2023] 10 MLJ 580) but the Court Appeal did not deliver any written grounds of judgment.
The various heads of damages awarded to Baby A were supported by the expert evidence and the law. Baby A was awarded damages for a multiplier of 21 and her life expectancy was also estimated to be for a further 21 years. Only time will tell if Baby A has been awarded too little or too much damages. The award of damages however pales in comparison with the harm caused to Baby A and her family.
Both the High Court and the Court of Appeal had made no judicial deductions for contingencies when calculating the multiplier because the experts had already made a deduction for contingencies when estimating Baby A’s life expectancy. A judicial deduction would have resulted in a double deduction when calculating the multiplier.
Both Courts had rejected the Government’s arguments that Baby A should receive a reduced sum of damages for future healthcare and therapies because the same was available for free in Government hospitals. Both Courts had cognizance of the fact that damages in money was the only relief or remedy that could be awarded in a personal injury claim.
