Aggravated damages have, in the Court of Appeal’s recent observation, “almost become the norm” in Malaysian medical negligence suits. The 2025 decision in Bukit Tinggi Hospital v Navin Sharma [2025] MLJU 3236 called for the Federal Court to clarify the doctrine. Until that clarification arrives, practitioners and the medical profession should understand what the doctrine actually covers and where the boundaries lie.

What aggravated damages are — and are not

Aggravated damages are compensatory damages awarded in addition to ordinary general damages, to reflect additional injury to feelings or dignity caused by the manner of the defendant’s wrong. They differ from:

• Ordinary general damages — compensation for the primary injury (pain, suffering, loss of amenity, future losses)
• Exemplary (punitive) damages — damages aimed at punishing the defendant rather than compensating the claimant; reserved for very limited categories (oppressive government conduct, calculated profit-seeking wrongdoing, statutory authorisation)

Aggravated damages compensate; they do not punish. The distinction matters because the medical negligence context — where conduct is usually neither malicious nor calculated, but rather careless — does not easily fit aggravation as traditionally understood.

When aggravated damages should apply in medical negligence

The doctrine, properly applied, requires conduct by the defendant — not merely a bad outcome — that materially increased the claimant’s emotional injury. In medical negligence, that conduct might include:

• Concealment — the doctor or hospital concealed the negligent act, denying the patient information they needed
• Refusal to acknowledge — sustained denial of error even in the face of clear evidence, requiring the claimant to litigate for vindication
• Falsification of records — alteration of medical records to support a defence
• Public attack on the claimant — public statements impugning the claimant’s truthfulness or motive
• Failure to provide records — wrongful withholding of medical records that would have informed the claim

Outside these conduct-based categories, aggravation pleadings risk being struck out. The bare fact of the underlying negligence — however serious — should not itself give rise to aggravated damages. That is the function of general damages.

The Court of Appeal’s concern

The Court of Appeal’s 2025 observation that aggravated damages have “almost become the norm” reflects two practical patterns:

• Claimants’ pleadings routinely include aggravation as a matter of practice, regardless of whether the conduct elements are made out
• Trial courts have at times awarded aggravation as a top-up to general damages without separate analysis of the conduct that justifies it

The Court called for Federal Court clarification. Pending that, practitioners should expect appellate courts to scrutinise aggravation awards more closely and to set them aside where the conduct foundation is not pleaded and proved separately from the underlying negligence.

For claimants — pleading aggravation properly

1. Plead the underlying negligence claim separately
2. Plead the specific conduct (concealment, denial, falsification, public attack) supporting aggravation
3. Plead the additional injury (emotional distress beyond ordinary suffering) caused by that conduct
4. Quantify the aggravation claim with reference to comparable cases
5. Support with evidence — witness statements, documents, expert reports on the additional psychological harm

For hospital defendants — challenging inflated aggravation pleadings

• Apply to strike out aggravation pleadings that allege outcome without conduct (O.18 r.19 ROC 2012)
• At trial, require the claimant to identify the specific conduct relied on and the specific additional injury
• On appeal, where aggravation has been awarded as a top-up, challenge the absence of separate conduct findings

The pending Federal Court clarification

When the Federal Court addresses the doctrine, the likely directions are: (a) reaffirming that aggravation requires conduct, not outcome; (b) providing guidance on the quantum range; (c) potentially distinguishing between aggravation properly so called and “uplift” damages reflecting the gravity of the injury. Practitioners should prepare for tighter requirements rather than expansion of the doctrine.

See also: Bukit Tinggi Hospital v Navin Sharma — 2025 Damages Recalibration | 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.