DR HARI KRISHNAN & ANOR v. MEGAT NOOR ISHAK MEGAT IBRAHIM & ANOR AND ANOTHER APPEAL

[2018] 1 MLRA 535

DR HARI KRISHNAN & ANOR v. MEGAT NOOR ISHAK MEGAT IBRAHIM & ANOR AND ANOTHER APPEAL
Federal Court, Putrajaya
Raus Sharif CJ, Ahmad Maarop CJM, Zainun Ali, A Samah Nordin, Ramly Ali FFCJ
[Civil Appeal Nos: 02-21-03-2015(W) & 02-26-04-2015(W)]
14 December 2017

JUDGMENT

Raus Sharif CJ:

[1] These two appeals are against the decision of the Court of Appeal, which affirmed the decision of the High Court in allowing the claim in medical negligence brought by Megat Noor Ishak Megat Ibrahim (the plaintiff). The plaintiff's claim was brought against the 1st defendant, ophthalmologist Dr Hari Krishnan (Dr Hari), the 2nd defendant, anaesthetist Dr Mohamed Namazie (Dr Namazie), and the 3rd defendant, the Tun Hussein Onn National Eye Hospital (the Hospital).

[2] Appeal No: 02(f)-21-03-2015 (Doctors' Appeal) was filed by Dr Hari and Dr Namazie. In the Doctors' Appeal, this court granted leave for the following two questions:-

"(i) Whether it is the Bolam test or the test in the Australian case of Rogers v. Whitaker [1993] 4 Med LR 79 which should be applied to the standard of care in medical negligence, following, after the decision of Federal Court in Foo Fio Na v. Dr Soo Fook Mun & Anor [2006] 2 MLRA 410; [2007] 1 MLJ 593; [2007] 1 CLJ 229; [2002] 2 AMR 1524, conflicting decisions of the Court of Appeal of Malaysia, conflicting decisions of the High Court in Malaysia, and the legislative changes in Australia, including the re-introduction there of a modified Bolam test"; and

(ii) Whether aggravating factors should be compensated for as general damages, therefore rendering a separate award of aggravated damages unnecessary, as decided by the English Court of Appeal in Richardson v. Howie [2004] EWCA Civ 1127 and explained in Michael Jones' Medical Negligence, 4th edn 2008, para 12-011."

[3] Appeal No 02(f)-26-04-2015 (Hospital's Appeal) was filed by the Hospital. The sole leave question in the Hospital's Appeal reads as follows:-

"Where the doctors are qualified professionals in a private hospital and working as independent contractors by virtue of a contract between the private hospital and the doctor, can the private hospital be held vicariously liable for the sole negligence of the doctors?"

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