Delivering the unanimous decision of a three-member panel, Justice S Nantha Balan said it was “imperative and mandatory” for claims of aggravated damages to be expressly pleaded and properly particularised.
He stressed that the statement of claim must set out the facts and circumstances relied upon to show injury to the plaintiff’s pride, feelings, or dignity.
“The injury to the pride, feelings or dignity must have occurred at the same time as the occurrence of the tort.
“Events occurring after the occurrence of the tort, including pre-litigation conduct or conduct during litigation, are not aggravating circumstances,” he said in allowing Bukit Tinggi Hospital’s appeal.
Nantha Balan clarified that the estate of a deceased person may seek aggravated damages, but only for events that occurred prior to death.
However, such a claim is contingent on the deceased having been conscious or sentient at the time, and able to feel or perceive the alleged aggravating conduct of the tortfeasor, the judge added.
In this case, Nantha Balan said, the estate had no standing to sue for aggravated damages as the events and conduct relied upon occurred after the woman’s death.
The judge also cautioned against conflating negligent acts or omissions with aggravating conduct, even if they occurred contemporaneously.
Nantha Balan, who retired on Thursday after 13 years on the bench, further noted that the manner in which a tortfeasor conducts their defence or litigation strategy cannot form the basis for aggravated damages.
“Rather, such abusive conduct must be dealt with within the confines of the Rules of Court 2012 and the court’s inherent jurisdiction,” he said in an 80-page judgment released earlier this month.
The deceased, Suman Rampal, 41, was admitted to the hospital on May 13, 2019, for severe abdominal pain and was examined by a doctor who diagnosed her with a urinary tract infection and a relapse of nephrotic syndrome.
She was discharged but later returned in critical condition and passed away the following day due to fulminant septic shock with acute renal failure.
Suman’s estate and dependents filed a medical negligence action against the hospital and the attending doctor, alleging a failure to properly diagnose and treat her condition.
The High Court found both defendants liable and awarded around RM1.08 million in damages, including RM700,000 for aggravated damages, RM176,280 for loss of dependency, and RM100,000 for pain and suffering.
The defendants appealed, while the plaintiffs, K Navin Sharma and H Saroop Rampal, cross-appealed seeking a higher award of damages.
The bench, which included Justices Azimah Omar and Ahmad Kamal Shahid, also set aside the loss of dependency award, ruling there was no evidence the deceased had contributed anything towards household expenses.
Instead, Nantha Balan said the evidence showed that the requisite financial support was provided for by the deceased’s husband.
For such claims, there must be actual loss, the judge said, adding that monies kept aside or saved cannot be taken into account when computing loss of dependency.
Nantha Balan urged trial courts to be vigilant and astute in detecting exaggerated claims for loss of dependency, saying the compensation awarded must be based on evidence rather than sympathy.
The bench also reduced the RM100,000 damages awarded for pain and suffering to RM50,000.
Nantha Balan noted that the patient died after being in the hospital for about 24 hours.
With the aggravated and dependency awards struck out, the total award payable was reduced to about RM200,000.
Lawyers Amos Siew and Nicole Bor appeared for the hospital while counsel Manmohan Singh Dhillon, Karthi Kanthabalan and Navpreet Kaur acted for the estate and the dependants of the deceased.