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SPECIAL DAMAGES (the statute applicable is Civil Law Act)

1) Whether Sally can claim for her medical expenses?

Medical expenses claim is a claim for reasonable expenses incurred for the purpose of treating the
injuries which incurred before the date of trial. A plaintiff has the freedom of choice to go to which hospital and
if the treatment at a government hospital, the full amount expended should be awarded based on Chai Yee
Chong v Lew Thai. S. 28A(1)(a) provides that the court shall not take into account any sum paid or payable
in respect of the personal injury under any contract of assurance or insurance. In WARD v MAS Sdn Bhd, the
insurance was taken by the employer MAS to cover the insurance for their employees. The court said that
there is no difference whether it is plaintiff’s own insurance or provided by employer, the defendant still cannot
take advantage of that.

In this situation, RM 1000 is a medical expense incurred before the date of trial. It can be said as
reasonable with the fact that she has to undergo a hysterectomy and hospitalised for 2 weeks longer than
normal labour as a result of the hospital's negligence itself. As in Ong Ah Long, this has to be specifically
pleaded and strictly proved by Sally. As in Chai Yee Chong, she has the freedom to go to hospital of her
choice. Although her medical expenses are covered by insurance, based on S. 28A(1)(a) and Sin Hock Soon,
the court shall not take it into account as it is non-deductible. Plus, as in the case WARD, the defendant
cannot take advantage of the fact that Sally’s medical is covered by insurance meaning the RM 1000 will still
be included in the claim.

In conclusion, as in Chai Yee Cong, Sally should be successful in her claim of medical expenses and
should be awarded in full of RM 1000 as treatments by government hospital was reasonable and necessary.

2) Whether Sally can claim for medical expenses of Ming?

Law as per issue 1). Plus, in Seah Yit Chen v Singapore Bus Co Ltd, the plaintiff can claim for
reasonable expenses actually incurred and to be incurred by him because of the injury suffered.
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In this situation, Ming has incurred RM 2000 as she has to be hospitalised for 6 months. The medical
expenses incurred due to Ming suffering cerebral injury from the hospital’s negligence itself in conducting the
birth process meaning the damages is not remote. Applying to Seah Yit Chen, the government hospital only
conducts necessary treatment onto its patient which justify that the costs of RM 2000 incurred is already
reasonable to save Ming.

In conclusion, as in Chai Yee Chong, since Sally chose to give birth at a government hospital, she
should be awarded for the full amount of RM 2000 as in Chai Yee Chong.

3) Whether Sally can claim for loss of personal belongings of her gold necklace?

If as a result of the accident, the plaintiff’s belongings are stolen or removed, the lost item can be
claimed. The defendant should not be allowed to contend that such loss was due to the plaintiff’s
carelessness. Based on Parvathy v Liew Yoke Khoon, an Indian woman was injured while on the way to a
wedding, was allowed to recover for the amount of RM 7470 of loss of jewellery and other stolen items from
her at the accident scene. She needed to prove that the items which were subsequently stolen were with her
at the time of the accident to claim. It was held that it was reasonable for an Indian to wear that much
jewellery to a wedding.

In this situation, Sally’s gold necklace is missing at the hospital. Applying to Parvathy, Sally needs to
prove the fact that she is wearing the necklace when she is being admitted to the hospital. It can be argued
that as the necklace is a present by her mother, it is reasonable that Sally will wear it all the time and does not
have time to put it away as she is experiencing abdominal pain when being admitted. Plus, it can be argued
that a woman, who is at the tip of the horn to give birth will worry about herself and baby rather than other
things. The fact that she collapsed due to severe bleeding, she was in a critical condition to even worry about
the necklace.

In conclusion, Sally can claim for the missing of her necklace and the defendant should not be allowed
that the necklace is lost due to Sally’s carelessness based on the argument above.
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4) Whether Sally can claim for travel expenses when her husband visited her and Ming in hospital?

Costs of transport are divided into two categories: incurred by plaintiff himself or his family members.
Generally, costs of transport are recoverable. In Tay Siew Goh v Tay Tian Soo, the court allowed the claim of
travel expenses for the plaintiff's parents and relatives. In Wong Kong v Yee Hup Transport, plaintiff claimed
for wife’s expenses of going to visit him in the hospital while he was bedridden. The court held that the wife’s
visit was necessary as the plaintiff was bedridden which required the assistance to help move his position
during his recovery process. The court also considered the psychological effect of the plaintiff wife’s presence
on him which could help him to get better.

In this situation, Don has visited her for 2 weeks and Ming for 6 months while they were in the hospital.
As in Tay Siew Goh, the travel expenses incurred by family members (Don is her husband) are generally
recoverable. Applying to Wong Kong, Don’s visits are necessary. The fact that she hires a confinement lady
as she was unable to take care of herself, shows that she needs more help to move around, requires her
husband’s assistance in addition to the nurses. Plus, Don’s presence is necessary in helping Sally and Ming
psychologically to get better.

In conclusion, Sally can claim for travel expenses for her husband.

Formula:
Travel expenses per visit x number of visit

Calculation:

RM 50 x 182 days1 = RM 9,100

1
182 days is 6months. Cost of travel expenses for Sally (2 weeks) is included in Ming (6months) because
Don visits them together.
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5) Whether Sally can claim for the cost of jamu as extra nourishing food given by her husband?

To claim for extra nourishing food, the plaintiff must show medical evidence proving that it was
necessary for him to have that special and nourishing food. In Yeap Cheng Hock v Kajima-Taisei Joint
Venture, the plaintiff ordered Brand’s Essence of chicken and drank it and the court held that in absence of
medical evidence that purchasing extra nourishing food was necessary, the court refused to award the claim.
In Norizan Abd Rahman v Dr Arthur Samuel, the plaintiff claimed for RM 1000 for the sum being the cost of
the extra nourishing food to help her recuperate and it is a common practice at times of illness one would
consume nourishing food. The court said the plaintiff need not provide medical evidence to prove that, but the
receipts on the other hand must be produced as proof of purchasing the nourishing food.

In this situation, to be able to claim Sally needs to prove that the jamu is necessary to recover from the
injury suffered due to the hospital’s negligence. As in Yeap Cheng Hock, there is no medical advice proven by
Sally that she should drink jamu to get better from the injury as it was not necessary to recover from the
operation of hysterectomy. Although there is variance of decision as in the case Norizan Abd Rahman where
Sally does not need to provide medical evidence, the jamu is consumed for the purpose of helping her
recuperate from giving birth although is common practice, not due to the injury suffered from hospital’s
negligence in conducting hysterectomy.

In conclusion, Sally cannot claim for costs of jamu as she cannot prove that consuming jamu is
reasonable and necessary for her for the injury caused by hospital.

6) Whether Sally can claim for the RM 10,000 given for the appreciation of her services.

Gratuity is a benefit given by the employer to employees which could be given on employees'
retirement or resignation which may be paid a lump sum termination benefit in respect of his long
period of service.2 S.28A(1)(b) states that any pension or gratuity, which has been or will or may be
paid as a result of the personal injury, shall not be taken into account.

2
Inland Revenue Board of Malaysia, (2016). Retrieved on 28 June 2021 from,
http://phl.hasil.gov.my/pdf/pdfam/PR_09_2016.pdf
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In this situation, Sally has resigned to look after Ming, she is given a cheque amounting to RM
10,000 in appreciation for her service. This is gratuity as it is given by Sally’s employer to her for the
period of 5 years she has worked in that company. As in S.28A(1)(b), the amount of RM 10,000 is
non-deductible and not taken into account.

In conclusion, this amount is non-deductible and shall be awarded to Sally.

7) Whether Sally can claim for Ming’s special clothes and disposable diapers of RM 500?

In Inas Faiqah, due to the negligence to attend to her mother before her birth, she suffered cerebral
palsy. She claimed RM 500 for the costs of special food, wipers and cream. The court awarded RM 140
monthly only for the wipers. The court considered whether the costs for the items claimed are necessary and
relevant to the needs of the plaintiff because there must be evidence to support appellant's claim on the need
for special clothes and the types of cream for the use of the appellant.

In this situation, cerebral injury is a brain damage which can affect her bowel movements3. Due to this,
Ming has to depend on disposable diapers which is necessary and reasonable to be claimed from the type of
injury she suffers. Based on Inas Faiqah, she is able to claim for disposable diapers only because there is no
evidence to show that special clothes are necessary for the injury.

In conclusion, Sally is only entitled to the amount of the diapers and not the full amount of RM 500 as
claimed because special clothes are not relevant. No calculation as fact does not specifically state costs
claimed for diapers.

3
Government of Alberta, (2021). After a Brain Injury: A Guide for Patients and their Families. Retrieved
on 28 June 2021 from,
https://myhealth.alberta.ca/after-brain-injury/changes-after-a-brain-injury/your-body/bowel-and-bladder-ch
anges
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8) Whether Sally can claim for Ming’s wheelchair in future under cost of prosthesis?

The court does allow claims for artificial limbs, maintenance and replacement of spare parts which
includes the cost of a wheelchair. In Kasirin bin Kasmani v The Official Administrator the plaintiff chose to
purchase an expensive wheelchair when he could have purchased a cheaper one. He has an obligation to
mitigate damages and the court only allowed him the agreed three charges of a standard wheelchair for the
lump sum of RM1600 at the present price of RM520 per chair for the duration of his life.

In this situation, Ming needs to use wheelchair when he grows up due to his condition and it costs RM
1000 due to severe birth asphyxia which limits her movement. Kasirin bin Kasmani is an old case in 1991, the
cost of RM 1000 for a wheelchair is reasonable and standard price considering our current economy in 2021.
A wheelchair which has a lifespan of 5 years is a normal manual one, thus what is claimed by Sally is not
excessive4.

In conclusion, the cost is reasonable and necessary due to his condition.

Formula:
Cost of item X 75 - (base age) (2/3)
Lifespan of item

Calculation:
(RM1,000 x 75) - (x) = x - (2/3x) = RM XX
5 years

4
Ultimate Guide to Buying a Wheelchair. Retrieved on 1 July 2021, from,
https://scootaround.com/en/wheelchair-buying-guide
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9) Whether Sally can claim for the cost of nursing care for Ming?

The principle in claiming nursing care is where the plaintiff is unable to perform his daily activities
without assistance, the court would allow a claim for nursing care. The award of damages for this claim would
be allowed depending on the extent of injuries suffered. Plaintiff may claim for nursing care by family members
or private institutions. In Yang Salbiah v Jamil bin Harun, the plaintiff as a result of the accident, suffered
severe brain damaged and became mentally retarded. By the time the case went to Federal court, she was 12
physically but had the mental capacity of a 3 year old. Plaintiff claimed for first, cost of care under special
damages, the court held that this was nothing more than normal situation of a mother taking care of her young
daughter and was rejected. In Inas Faiqah bt Mohd Helmi v Kerajaan Malaysia, the court disallowed the
claim for cost of nursing care provided by appellant’s mother from birth until about 2 years old because the
care would not be different form the care of a normal child eventhough she suffered quadriplegic spastic
cerebral injury. Second, in Yang Salbiah the plaintiff also claimed for future care under general damages
where court said there must be a time where her parents could not look after her physical needs anymore and
would have to call out for outside assistance which would have to be paid for.

In this situation, Ming suffers cerebral injury as the effect of birth asphyxia resulted from hospital’s
negligence. Applying to Yang Salbiah, since Ming is deprived of oxygen, it damages her brain and limits her
participation in daily lives. Proven when she has to depend on wheelchairs and diapers to live, she is unable
to attend to her daily needs like an ordinary person, thus she is justified to get a caregiver. Firstly, Sally has
quit her job to take care of Ming as a mother, this is a claim gratuitous care under special damages, as in
Yang Salbiah, Sally cannot claim because it is normal that a mother will take care of her own child. Similar to
Inas Faiqah, the care for Ming from birth has no difference from the care of a normal baby although Ming
suffers cerebral injury. As it is gratuitous care, Sally’s claim should be rejected. Second, Sally also argues that
in future, Ming will require the assistance of a nurse. This is future care which can be claimed under general
damages. Applying to Yang Salbiah, it can be argued that there will be a time in future where Sally and Don
will not be able to take care of her physical needs anymore and would have to call for outside assistance
which must be paid for. The cost of future care for Ming even though her parents can look after her, they will
have to be compensated for the time and money spent for future care.

In conclusion, Sally can claim for future costs of private institutions caregiver only not gratuitous care.
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Formula:
Multiplier x Multiplicand

[(Cost Of Care x 12 Months) x [(75-base age) (⅔)]

Calculation:
[(RM 1000 x 12) x (75 - x)(⅔)] = RM XX

10) Whether Sally can claim for the cost of confinement lady under traditional treatment?

Maternity Confinement is one of the traditional treatments which has become a tradition for women who
have given birth to a baby to heal and restore energy and health within a specified period of time5. In Seah Yit
Chen, as for the cost of treatment by Chinese physician, the test must be whether it was reasonable for the
plaintiff to seek such traditional medicine and incur the expenses.

In this situation, Sally wants to claim for RM 2000 spent for confinement lady for 40 days, not to heal
from the injury suffered from the operation but for giving birth like any mother in our society would normally do.
Based on Seah Yit Chin, she does not hire the confinement lady based on reliable advice from doctor in Arau
Hospital thus, it is not reasonable to incur such expenses based on her own impulse.

In conclusion, Sally cannot claim for the cost of confinement lady because it is a common practice to
recover from giving birth not from the operation of hysterectomy.

5
Zuraidah Mohd Yusoff, Asmiaty Amat, Darlina Naim and Saad Othman, (2018). Postnatal Care among
the Malays, Chinese and Indians: A Comparison. Retrieved on 29 July from,
https://www.shs-conferences.org/articles/shsconf/pdf/2018/06/shsconf_iclk2018_05002.pdf
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11) Whether Sally can claim for loss of future earnings since she quit her job?

Loss of future earnings is when plaintiff finds that as a result of the accident, he can no longer earn his
pre-accident rate of earnings. After 2019 amendment, requirements to be satisfied in S.28A(2)(c)(i) are he
must be below 60 and receiving earnings before he is injured. In Dirkje Pieternella Halma v Mohd Noor
Baharom, if the plaintiff was not receiving any earnings at that point of time, she does not qualify for any
award of damages for loss of future earnings.

Applying to S.28A(2)(c)(i), Sally fulfills the first requirement as she is 30 years old and contradicting
Dirkje Pieternella, she was receiving earnings but Sally stopped working to look after her daughter not
because she is unable to work due to her injury suffered from negligence. Thus, as she does not fulfil the
requirement, she cannot claim for loss of future earnings.

12) Whether Sally can claim for loss of future earning capacity for Ming?

Loss of earning capacity means the weakening of the plaintiff’s competitive position in the open labour
market, where the competitiveness is reduced because of the injury suffered. Requirement as per 11). In Tan
Kim Chuan v Chandu Nair, the court states that plaintiff must be earning at the time of injury, otherwise
cannot claim for loss of earning capacity.

In this situation, Ming has limited movement from the injury suffered which reduces his competitiveness.
Applying to requirement in S.28A(2)(c)(i), Ming is an infant thus below 60 years old. However, as in Tan Kim
Chuan, Ming is not earning at the time of injury as he is an infant, in conclusion cannot claim for future earning
capacity.
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GENERAL DAMAGES

13) Whether Sally can claim for cerebral injury under pain and suffering on behalf of Ming?

Pain is the physical pain suffered by the plaintiff due to the injury while suffering is the mental element.
In Lim Poh Choo v Camden and Islington AHA, the plaintiff must be conscious and aware in order to claim.
In Wong Li Fatt, William (an infant) v Haidawati bte Bolhen, a 3 years old boy was knocked by a car while
crossing the road and became handicap and unconscious. However, he made sound and occasionally had
seizures which proved that he is conscious. The court decided he can feel pain and awarded pain and
suffering and loss of amenities for RM190,000.

In this situation, cerebral injury is damage to brain which Ming physically suffers. Based on Lim Poh
Choo, to be able to claim it must be proven that Ming is conscious. Applying to Wong Li Fatt, Ming is totally
conscious because although suffers from cerebral injury, we can see that Sally has claimed for prosthesis,
meaning Ming is conscious at the time of claim even though her movement is limited and has to use
wheelchair.

In conclusion, Sally can claim pain and suffering of Ming and shall be granted according to the
compendium although not mandatory to the court, RM 6,0006.

14) Whether Sally can claim for loss of amenities since her uterus was removed?
Loss of amenities are awarded for the deprivation of ordinary experiences and amenities of life,
regardless of whether the plaintiff is aware of it or not. Loss of marriage prospects is a form of amenities. In
Saniah v Abdul Hamid, plaintiff was 19 claimed for the scars on her face and the fact that she is now limping,
chances of her getting married has been reduced, was awarded RM 20,000 considering her appearance is
one factor society look at to marry. In Lau Ee Ee v Tang King Kwong, the court in allowing the claim states
that “her capacity for enjoyment of life in respect thereof has to a certain degree been damaged by her lumbar
injuries. I think this is a factor which I have to take into consideration when attempting to estimate the quantum
of damages loss of amenities.”

6
Malaysian Bar. Revised Conmpendium for Personal Injury Award.
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In this situation, it is irrelevant whether Sally is conscious or not because she will be able to claim for
loss of amenities if it is proven she is deprived. As in Saniah's case, Sally is deprived of ordinary experiences
and enjoyment of life as a woman, to bear children in future as her uterus has been removed is loss of
marriage prospects. Referring to Lau Ee Ee, considering Sally is still young since she is just 30 years old, she
still has the chance to be pregnant if her uterus is not removed. Thus, loss of marriage prospect and her age
are factors to be considered.

In conclusion, Sally can claim for loss of amenities since she is deprived of her ordinary experiences
as a woman.

15) Whether Sally can claim for loss of amenities for Ming?

Law as per issue 14.

In this situation, Ming also does not have to prove that she is conscious to claim for loss of amenities.
As in Lau Ee Ee, since Ming has to use wheelchair for her whole life due to the hospital's negligence, she has
lost enjoyment of life as she cannot go to school, get a degree as a normal kid would because of severe birth
asphyxia she may be intellectually disabled. She is not be able to work since her brain is damaged, her
capacity to walk and move is limited, an employer will refuse to employ her.

In conclusion, Sally can claim for Ming's loss of amenities since she is deprived of her right to live
normally.

(3545 words)
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BIBLIOGRAPHY

1) Inland Revenue Board of Malaysia, (2016). Retrieved on 28 June 2021 from,

2) Government of Alberta, (2021). After a Brain Injury: A Guide for Patients and their
Families. Retrieved on 28 June 2021 from,
https://myhealth.alberta.ca/after-brain-injury/changes-after-a-brain-injury/your-body/bow
el-and-bladder-changes

3) Malaysian Bar. Revised Conmpendium for Personal Injury Award.

4) Ultimate Guide to Buying a Wheelchair. Retrieved on 1 July 2021, from,

5) Zuraidah Mohd Yusoff, Asmiaty Amat, Darlina Naim and Saad Othman, (2018).
Postnatal Care among the Malays, Chinese and Indians: A Comparison. Retrieved on
29 July from,
https://www.shs-conferences.org/articles/shsconf/pdf/2018/06/shsconf_iclk2018_05002.
pdf