[2024] 3 MLRA 208

Federal Court, Putrajaya
Mohamad Zabidin Mohd Diah CJM, Abdul Rahman Sebli CJSS, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan FCJJ
[Civil Appeal No: 02(f)-12-02-2023(B)]
23 February 2024


Mary Lim Thiam Suan FCJ (Majority):

[1] This is the majority decision of the Court. My learned brothers, Mohamad Zabidin bin Mohd Diah, CJM and Abdul Rahman bin Sebli, CJSS, and my learned sister Hasnah binti Mohammed Hashim, FCJ have read this judgment in draft and have agreed with the said draft.

[2] The appellant instituted a claim through his wife as he had suffered severe brain damage as a result of treatment rendered by the 1st and 2nd defendants, medical specialists who practised at a hospital managed or operated by the respondent, the 3rd defendant at the High Court. After a full trial, the claim against the 2nd defendant was allowed while the claims against the 1st and 3rd defendants were dismissed. That decision on liability was sustained on appeal although appeal on quantum was allowed and the amount was varied to some extent by the Court of Appeal. Being dissatisfied, the appellant sought leave to appeal.

[3] On 14 February 2023, leave was granted on the following seven questions of law:

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 & Another Appeal [2017] 6 MLRA 367; [2018] 1 MLJ 685; [2017] 10 CLJ 529; [2017] 6 AMR 609 case of Hughes v. Rattan [2022] EWCA Civ 107?

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?

3. Whether the owner and manager of a private hospital is 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?

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