The Eye Appeal: RM1 Million in Aggravated Damages and a Hospital’s Own Duty

An award of RM1,000,000 in aggravated damages, five times the general damages in the same case, is what the Federal Court left undisturbed on 14 December 2017 in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal, sometimes called the Eye Appeal. With the Court of Appeal upholding one aggravated award in March 2026 and setting aside another in 2025, the case remains the reference point for how far such damages can go.

A second operation that ended in blindness

The patient had a retinal detachment in his right eye and was operated on by a consultant ophthalmologist. After he reported problems following that operation, a second operation was advised and performed. According to one published case note, he had asked for a particular anaesthetist, but a different anaesthetist was assigned.

During the second operation, while the surgeon was working on the retina, the patient came out of anaesthesia and made the sudden movement known as bucking. A supra-choroidal haemorrhage, bleeding within the wall of the eye, followed, and he permanently lost the sight of his right eye.

He sued the surgeon, the anaesthetist and the private hospital. After a lengthy trial the High Court found all three liable, including for failing to warn him of the risks of bucking and of blindness. The Court of Appeal affirmed. One complication was that the trial judge’s grounds were said to be a non-speaking judgment, meaning one that does not adequately explain the reasons for its conclusions.

Four issues on appeal

The Federal Court had to decide four things. Does a non-speaking judgment automatically require a retrial? Which test governs the standard of care: Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, which defers to responsible medical opinion, or Rogers v Whitaker (1992) 175 CLR 479, under which the court decides? Can aggravated damages be awarded for medical negligence? And is a private hospital liable for doctors who are independent contractors rather than employees?

How the Federal Court ruled

A five-member panel unanimously dismissed all the appeals, with the judgment delivered by Raus Sharif CJ.

No automatic retrial. Where the appellate court can make its own findings from the record, a non-speaking judgment does not by itself require the case to be tried again.

Standard of care. The court affirmed its decision, less than five months earlier, in Zulhasnimar [2017] 5 MLJ 438. Bolam, as qualified by Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, governs diagnosis and treatment. Rogers v Whitaker, adopted in Foo Fio Na [2007] 1 MLJ 593, governs the disclosure of risks. Both doctors had failed to warn the patient, and the consent form contained only general wording.

Aggravated damages. These compensate for injury to a claimant’s feelings, pride or dignity, and are distinct from exemplary damages, which punish. The court held that they may be awarded as a separate head of damages in medical negligence involving real bodily injury. It upheld the award of RM1,000,000, alongside general damages of RM200,000 and special damages of RM8,014.

The hospital. Applying Dr Kok Choong Seng [2018] 1 MLJ 685 and Woodland v Swimming Teachers Association [2014] AC 537, the court held that the hospital owed a non-delegable duty in respect of anaesthetic services. The patient had no say in who the anaesthetist would be and no control over how the hospital provided that service.

Sources describe this last holding in slightly different words. Most published commentary says the doctors were independent contractors, so that the hospital was not vicariously liable but was liable for breach of its own non-delegable duty. One headnote summary speaks of vicarious liability based on non-delegable duty principles. This article follows the first description. The accounts relied on here discuss the hospital’s liability only in relation to the anaesthetist.

Aggravated damages since 2017: upheld in one case, set aside in another

Two later Court of Appeal decisions show both the reach and the limits of this head of damages. On 12 March 2026, as reported by Malay Mail, the Court of Appeal dismissed an ophthalmologist’s appeal in another eye-injury case and upheld an award that included RM500,000 in aggravated damages.

In Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma a/l Karam Chand & Anor, reported in October 2025, the Court of Appeal set aside aggravated damages of RM700,000 in a claim brought after a patient’s death. It held that the injury to feelings must be contemporaneous with the wrong and cannot arise from a defendant’s conduct after the patient has died. Whether any further appeal was pursued in either case could not be confirmed as at 19 September 2026.

Lessons for patients, doctors and private hospitals

• Patients: a consent form with general wording does not prove that a specific risk was explained to you.

• Doctors: record the specific risks discussed. Anaesthetists have their own, separate duty to warn.

• Doctors: conduct towards the patient, including the accuracy of records and the manner of the defence, can affect the size of an award.

• Private hospitals: the hospital may answer for a clinician it assigns and the patient did not choose, whatever that clinician’s contract says.

Authorities and sources

• Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281; [2018] 3 CLJ 427; [2018] 1 MLRA 535 (Federal Court, 14 December 2017)

• Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 (Federal Court)

• Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685; [2017] 10 CLJ 529 (Federal Court)

• Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 (Federal Court)

• Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma a/l Karam Chand & Anor (Court of Appeal, 2025)

• Bolam [1957] 2 All ER 118; Bolitho [1997] 4 All ER 771; Rogers v Whitaker (1992) 175 CLR 479; Woodland [2014] AC 537

• Malaysian Bar CPD website, commentary on the Eye Appeal; Medical Journal of Malaysia 2025;80(3):277–281; Free Malaysia Today, 25 October 2025; Malay Mail, 12 March 2026; published law-firm case notes (secondary material)

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors