BUKIT TINGGI HOSPITAL SDN BHD & ANOR v. NAVIN SHARMA KARAM CHAND & ANOR AND ANOTHER APPEAL
COURT OF APPEAL, PUTRAJAYA
S NANTHA BALAN JCA
AZIMAH OMAR JCA
AHMAD KAMAL MD SHAHID JCA
[CIVIL APPEAL NOS: B-02(NCvC)(W)-1482-09-2023 & B-02(NCvC)(W)-1483-09-2023]
23 SEPTEMBER 2025
[2025] CLJ JT (14)

Abstract – (i) Aggravated damages are a compensatory remedy for non-pecuniary injuries, such as emotional distress, humiliation or injury to feelings, suffered by a living claimant that are exacerbated by the tortfeasor's outrageous or oppressive conduct. Since these feelings cease on death, the claim cannot logically and legally survive for the benefit of the estate. The proper remedy for a tortfeasor's reprehensible or oppressive conduct after the death of the deceased, including litigation misbehaviour, is an award of substantial costs, not aggravated damages; (ii) The approach of calculating loss of dependency, by automatically deducting 1/3 from the net income and treating the remaining balance, ie, 2/3, as 'loss of dependency', is fundamentally flawed, especially when a household may have more than one member earning and capable of supporting the dependents; (iii) The income of the deceased that was not used to pay for household expenses or for the dependents' direct benefit 'at the time of the death', but was saved for a future use, cannot be computed as 'loss of support' under s. 7(3) of the Civil Law Act 1956. Such a claim is based on surmise and speculation.

TORT: Negligence – Medical negligence – Misdiagnosis resulted in death of deceased – Claim by estate of deceased against hospital and attending doctor – Hospital and doctor admitted liability – Appeal by parties against quantum of damages and costs awarded by High Court

DAMAGES: Negligence – Medical negligence – Medical/hospital expenses – Misdiagnosis resulted in death of deceased – Claim by estate of deceased against hospital and attending doctor – Whether medical/hospital expenses constituted reasonable expenses incurred as result of wrongful act, neglect or default of alleged tortfeasors – Civil Law Act 1956, s. 7(3)

DAMAGES: General damages – Pain and suffering – Loss of amenities – Quantum of damages – Misdiagnosis resulted in death of deceased – Claim by estate of deceased against hospital and attending doctor – Deceased suffered tremendous pain and was conscious for about 24 hours and went through rounds of trauma associated with invasive procedures prior to death – Whether circumstances of case necessitated award of pain and suffering and loss of amenities – Appropriateness of quantum

DAMAGES: Negligence – Medical negligence – Loss of dependency – Quantum of damages – Misdiagnosis resulted in death of deceased – Claim by estate of deceased against hospital and attending doctor – Method of determining loss of dependency by taking off 1/3 from net income of deceased and treating 2/3 balance as 'surplus income' as loss of dependency – Whether method flawed – Proof of contribution – Whether unutilised savings recoverable

DAMAGES: Aggravated damages – Claim – Misdiagnosis resulted in death of deceased – Hospital and doctor admitted liability – Appeal by hospital and doctor against aggravated damages awarded to estate of deceased by High Court – Appropriateness of award and quantum – Whether excessive – Whether aggravated damages recoverable by estate of deceased – Proper remedy for post-death oppressive conduct

CIVIL PROCEDURE: Costs – Appeal against trial costs – Medical negligence – Misdiagnosis resulted in death of deceased – Claim by estate of deceased against hospital and attending doctor – Trial took two days and claimants testified on factual matters and called medical expert – Whether costs awarded by High Court grossly inadequate – Fair and reasonable amount to be awarded