The Court of Appeal decision in Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma A/L Karam Chand & Anor [2025] MLJU 3236 marks a notable shift in the Malaysian judiciary’s approach to the assessment of damages in medical negligence. Two patterns from the decision deserve close attention by practitioners on both sides — claimants and defendant hospitals.
Tighter evidential threshold for dependency claims
The Court of Appeal set aside the High Court’s RM176,280 loss of support award entirely, underscoring the court’s insistence on evidential rigour. The Court characterised dependency claims as akin to claims for special damages — they must be supported by “clear, convincing and compelling” proof, not inferred from generalised family circumstances or anticipated contributions.
The practical consequence: claimants pursuing loss of dependency must now produce documentary evidence of the deceased’s actual financial contributions (bank statements, EPF contributions, tax returns, household expense records) covering a representative period before death. Mere assertion that the deceased “would have” supported the family financially is no longer sufficient.
Concern about aggravated damages becoming the default
The Court of Appeal noted that aggravated damages have “almost become the norm” in Malaysian medical negligence suits — a remark that signals judicial unease with a trend that risks transforming compensatory claims into punitive ones. Aggravated damages, properly understood, are reserved for cases where the defendant’s conduct (concealment, malice, post-injury aggravation) has materially increased the claimant’s harm beyond the original wrong.
The Court called for the Federal Court to clarify the availability of aggravated damages in medical negligence. Until that clarification arrives, claimants should expect closer scrutiny of aggravation pleadings — and should plead conduct, not just outcome.
What this means for medical negligence litigation in Malaysia
- For claimants — document dependency and aggravation with the same rigour applied to special damages. Get the bank statements, the witness affidavits, the contemporaneous records of conduct, before pleading.
- For hospitals and defendant doctors — challenge inflated dependency claims at pleading stage. Strike out aggravation pleadings that allege outcome without conduct.
- For settlement negotiations — recalibrate expected awards downward in dependency-heavy claims. Aggravated damages are no longer a presumed add-on.
The bigger picture
The 2025 recalibration sits alongside other Federal Court guidance on Bolam-Bolitho (Foo Fio Na, Hari Krishnan) and on limitation (Limitation Act 1953). Together they form a tightening framework around medical negligence damages — compassion for victims continues to be balanced against the compensatory (not punitive) purpose of damages. Practitioners should expect the trajectory to continue: more scrutiny, more rigour, more discipline.
See also: Foo Fio Na case comment | Hari Krishnan case comment | Medical Negligence Lawyer in Malaysia
About the author
Dr Chee Hui Bing is a Malaysian Advocate & Solicitor and former medical doctor. Principal of Chris & Partners Advocates & Solicitors, Batu Pahat, Johor. Read full profile.