IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA

( Appellate Jurisdiction )
Civil Appeal No. :P-02(W)-2-10/2023

BETWEEN
TAN JOO TUAN (MENDAKWA SEBAGAI WAKIL KEPADA
THAI BEE LAN (SI MATI) …APPELLANT
AND
TEOH MEI SHI …RESPONDENT

IN THE MATTER OF CIVIL SUIT NO : PA-23NCVC-10-06/2022

IN THE HIGH COURT OF MALAYA AT GEORGETOWN

BETWEEN
TAN JOO TUAN (MENDAKWA SEBAGAI WAKIL KEPADA
THAI BEE LAN (SI MATI) …PLAINTIFF

AND
TEOH MEI SHI …DEFENDANT

RESPONDENT’S WRITTEN SUBMISSION

Solicitor’s for the Respondent:

Messr. Zaaim & Partners
30, Jalan Angsana 1,
Taman Bukit Angsana Cheras,
56000 Cheras,
Wilayah Persekutuan Kuala Lumpur.
TABLE OF CONTENT
A. PRELIMINARIES................................................................................................................ 4
B. INTRODUCTION................................................................................................................. 4
C. BACKGROUND OF THE CASE......................................................................................... 5
E. SUBMISSION OF THE RESPONDENT............................................................................ 10
(1) FIRST MAIN ISSUE: WHETHER THE HIGH COURT JUDGE WAS CORRECT IN
DECIDING THAT THE RESPONDENT HAD NOT BREACHED HER DUTY AS A DOCTOR
AND WAS CLEARLY NOT NEGLIGENT ON THE BASIS THAT THE RESPONDENT’S
CONDUCT OF HAVING A CONSULTATION WITH THE APPELLANT AND FILLING THE
PRE-AUTHORISATION FORM IS IN ACCORDANCE WITH STANDARD PROCEDURE OF
THE MEDICAL PRACTITIONER?........................................................................................ 10
I-1ST SUB-ISSUE: WHETHER THE RESPONDENT’S CONDUCT IS IN LINE WITH THE
STANDARD OF CARE OF MEDICAL PRACTITIONERS AS ENVISAGED IN THE CASE
OF BOLAM V FRIEM HOSPITAL MANAGEMENT COMMITTEE GIVEN THAT THE
RESPONDENT HAD DISCHARGED HER DUTY BY CONDUCTING A FRESH PHYSICAL
EXAMINATION OF THE APPELLANT AFTER THE APPELLANT REFERRED TO THE
RESPONDENT?.................................................................................................................... 11
II-2ND SUB-ISSUE: WHETHER THE RESPONDENT HAS DISCHARGED HER DUTY OF
CARE AS A MEDICAL PRACTITIONER THROUGH ADEQUATELY FILING IN THE
PRE-AUTHORISATION FORM DESPITE THE APPELLANT'S FAILURE TO ATTEND THE
SUBSEQUENT APPOINTMENT?......................................................................................... 17
III- 3RD SUB-ISSUE: WHETHER, CONSIDERING THE APPELLANT IS STILL IN THE
PRELIMINARY STAGE PRIOR TO THE TREATMENT, THE RESPONDENT HAD
SUFFICIENTLY DISCHARGED HER DUTY TO DIAGNOSE BY GIVING SUFFICIENT
NOTICE OF THE LUMP IN THE APPELLANT’S BREAST AND ALSO UPCOMING TEST?.
21
2) SECOND MAIN ISSUE: WHETHER THE INJURY SUFFERED BY THE APPELLANT
WAS NOT DUE TO THE RESPONDENT’S CONDUCT BUT DUE TO THE DECLINATION
OF HER INSURANCE COVERAGE AND DUE TO THE APPELLANT’S OWN CONDUCT
BY CANCELLING THE APPOINTMENT ARRANGED BY THE RESPONDENT FOR
FURTHER TEST?..................................................................................................................27
I-1ST SUB-ISSUE: WHETHER THE INJURY SUFFERED BY THE APPELLANT WAS NOT
FACTUALLY CAUSED BY THE RESPONDENT’S ACT PURSUANT TO “BUT FOR” AND
“MATERIAL CONTRIBUTION” TEST?................................................................................ 28
II-2ND SUB-ISSUE: WHETHER OR NOT, AS FAR AS CAUSATION IN LAW IS
CONCERNED, IT IS REASONABLY FORESEEABLE THAT THE DECLINATION OF THE
INSURANCE COVERAGE WILL RESULT IN DAMAGE TO THE APPELLANT BY USING
THE “REASONABLE FORESIGHT” TEST?........................................................................ 32
III-3RD SUB-ISSUE: WHETHER OR NOT THERE IS A BREAK IN THE CHAIN OF
CAUSATION DUE TO THE APPELLANT’S OWN CONDUCT OF CANCELLING HER
APPOINTMENT ARRANGED BY THE RESPONDENT AND FAILURE OF THE
APPELLANT TO OBTAIN TREATMENT IN DUE TIME?..................................................... 36
(3) THIRD MAIN ISSUE: WHETHER, AS A RESULT OF NON-BREACH BY THE
RESPONDENT OF HER DUTY OF CARE AND BREAK IN THE CHAIN OF CAUSATION
(IN CASE) THE COURT FIND THERE IS A BREACH, THE APPELLANT IS NOT
ENTITLED TO DAMAGES?.................................................................................................. 42
F. PRAYERS OF RELIEF.......................................................................................................44

1
 INDEX OF AUTHORITIES

Cases

Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors

[2017] 5 MLJ 438 …………………………………………………………………………..11

Bolitho Appellant and City and Hackney Health Authority Respondents

[1998] A.C. 232……………………………………………………………………………..11

Rogers v Whitaker [1992] 109 ALR 625…………………………………………………12

Bolam v Friern Hospital Management Committee [1957] 2 AII 118…………………..12

Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as

University Hospital) & Anor [2016] 3 MLJ 742 …………………………………………13

Dr Premitha Damodaran v GTK (a child suing through her father and litigation
representative, Taranjeet Singh a/l Bhagwan Singh) & Anor and another appeal
[2022] 3 MLJ 484…………………………………………………………………………..14

Dr Wan Himratul Azna bt Wan Harun v Dato’ Dr Rohan Malek Johan & Ors [2017] 3
MLJ 82………………………………………………………………………………………15

Abdul Ghafur bin Mohd Ibrahim v Pengarah, Hospital Kepala Batas & Anor [2010] 6
MLJ 181……………………………………………………………………………………..17

Ku Jia Shiuen (an infant suing through her mother and next friend, Tay Pei Hoon) &
Anor v Government of Malaysia & Ors [2013] 4 MLJ 108 …………………………….19

Sanmarkan a/l Ganapathy & Anor (as administrators of the estate of Saradhamani
a/p Doraisamy Gopal, the deceased) v Dato’ Dr V Thuraisingham & Ors [2012] 3
MLJ 817……………………………………………………………………………………..20

Chin Keow v Government of Malaysia [1967] 1 WLR 813…………………………….23

Dr Noor Aini binti Haji Sa’ari v Sa-Art Sae Lee & Anor [2016] 1 MLJ 317…………..27

2
Elizabeth Chin Yew Kim & Anor v Dato’ Ong Gim Huat (sued as public officer of
Hospital Lam Wah Ee) and other appeals [2017] 1 MLJ 328…………………………28

Wilsher v Essex Area Health Authority [1988] 1 All ER 871…………………………. 29

McGhee v National Coal Board [1973] 1 WLR 1……………………………………… 30

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon

Mound (No 1) [1961] AC 338……………………………………………………………. 33

Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443……. 34

Emeh V. Kensington And Chelsea And Westminster Area Health Authority And

Others [1979 E. No. 446] [1985] Q.B. 1012…………………………………………….37

Lai Ping Alias Lai Wai Ping v Dr Lim Tye Ling & Ors [2014] MLJU 94………………38

Lian Meng Wah v Uma Parvathy Thothathri [2012] MLJU 1688……………………..40

Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd

Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1…………………..42

Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292 …………………………..43

Textbook

Bailey & Love’s Short Practise Surgery written by Norman S. Williams, P. Ronan

O’Connel and Andrew W. McCaskie ……………………………………………………24

Article

Estimating tumor growth rates in vivo by Anne Talkington and Rick Durrett………...14

Medical Negligence Concept in Malaysia: A Legal Study by Poppy Putri Hidayani,

Muhammad Hatta,Sumiadi and Zulfan…………………………………………………..33

Intervening Causation Law In A Medical Context

by Professor Douglas Hodgson…………………………………………………………..36

3
PENGHUJAHAN BERTULIS PIHAK RESPONDEN

Dengan segala hormat bagi Yang Arif, Hakim Mahkamah Rayuan. Pihak Responden

di sini memohon kebenaran Mahkamah yang mulia ini bagi meneruskan

penghujahan-penghujahan Responden dengan menggunakan Bahasa Inggeris.

May it please you, my Lord.

A. PRELIMINARIES

[1] This is the Respondent’s written submission filed in support of the

Respondent’s case, and in reply to the Appellant’s written submission in respect of

Appellant’s appeal against the decision to the learned High Court judge in

Georgetown dated 20th October 2023.

[2] The present proceedings concerns with the appeal filed by the Appellant

against the decision pronounced by the learned High Court judge, whereby the

Appellant was dissatisfied with the decision of the High Court in Georgetown date

20th October 2023 dismissing the Appellant’s case seeking damages for medical

negligence.

[3] The Respondent in the current proceedings is represented by counsels,

Ahmad Idham Baihaqi bin Md Azmai, Ahmad Zaim Suhail bin Ahmad Mujahid and

Amir Hafiz bin Azizan Baqi, respectively from Messrs. Zaaim & Partners.

B. INTRODUCTION

[4] It is of the Respondent contention that the learned High Court judge was

correct in dismissing the Appellant’s case and was not erred in deciding that there

was no negligent on the part of the Respondent.

4
[5] The Respondent humbly submit to this Honourable Court that the Respondent

shall not be made liable for medical negligence on the grounds and on basis of

submission made herein.

[6] The Appellant, with due respect, failed to establish its case on the grounds

submitted herein.

C. BACKGROUND OF THE CASE

THE RESPONDENT’S CASE

[7] The Respondent is a Consultant Breast & Endocrine Surgeon at Loh Guan

Lye Specialist Centre, Penang while the Appellant is her patient who suffers from

breast cancer. The Appellant consulted the Respondent about a lump in the

Appellant’s right breast after the Appellant was referred to the Respondent by her

first doctor.

[8] After the Appellant was referred to the Respondent, the Respondent inquired

into the medical history of the Appellant’s complaints of the said lump. The

Respondent asked the Appellant when the Appellant first discovered any symptoms

or noticed any early breast changes and the Appellant answered that she noticed the

changes about a year ago.

[9] Those responses were accordingly recorded in the Respondent’s Electronic

Medical Record (“EMR”). The Respondent then conducted a physical examination

on the Appellant and it was found out that the Appellant was diagnosed with a large

breast mass of 12 cm which was suspected to be malignant.

[10] The Respondent insisted the Appellant undergo further tests and an

appointment was scheduled on 21st October 2020 (five days after the first

consultation with the Respondent). In anticipation of the Appellant undergoing the

5
tests on 21st October 2020, the Respondent also completed the Pre-Authorisation

Form to enable the Appellant to be covered by her insurance policy.

[11] The Respondent filled in the form according to the answers given by the

Appellant and she wrote “Oct 2019” for the question asking the information as to

when the symptoms first appeared. However, the Appellant cancelled the

appointment to undergo the further test and never consulted with the Respondent

again. Subsequently, after four months of consultation with the Respondent, the

Appellant later visited Penang Adventist Hospital for further consultation and

treatment from the hospital.

[12] The Appellant received an email from MXM International Sdn Bhd (a

third-party administrator appointed by Lonpac Insurance Bhd) informing her that the

company declined the coverage of the Appellant’s insurance. During that period

when the Appellant’s insurance coverage was declined, she had been receiving

treatment from the hospital nonetheless.

THE APPELLANT’S CASE

[13] The Appellant believes that the Respondent had breached her duty as a

medical practitioner by failing to take proactive steps to disclose the risk of

malignancy towards the Appellant and failure to fill the Pre-Authorisation Form

properly.

[14] The Appellant submitted that not only, the Respondent had breach the duty to

diagnose, the Respondent also had breach the duty to treat and the duty to inform

stating the Respondent’s conduct was not in accordance with standard of care

expected as a medical practitioner.

6
[15] The Appellant contended that the Respondent who is a specialist in breast

cancer acknowledged one of the side effect of malignant was related with the

cognitive impairment.

[16] The declination of the insurance impacted the Appellants’ treatment which

later caused hardships and hindrance to her well-being.

[17] The Appellant believes that she is entitled to damages due injury suffered

from the conduct of the Respondent.

[18] However, the Respondent believed and strongly contended that Appellant’s

contention is of without any basis consideration of law and the Appeal should not be

allowed on the grounds which would be mentioned in the subsequent paragraphs.

D. RESPONDENT LEGAL ISSUES

1) Whether the High Court Judge was correct in deciding that the Respondent

had not breached her duty as a doctor and was clearly not negligent on the

basis that the Respondent’s conduct of having a consultation with the

Appellant and filling the Pre-Authorisation form is in accordance with the

standard procedure of medical practitioner?

[19] The issue seeks the court to consider whether the decision made by the High

Court Judge was indeed correct in deciding that the Respondent did not violate her

duties as a doctor and was not negligent towards the Appellant. It is proven that the

Respondent’s conduct towards the Appellant was in accordance with the standard of

duty expected from a medical practitioner thus the Respondent cannot be said to be

acting in negligence. There is also an intervening conduct on the part of the

Appellant which makes the claim for negligence failed. This main legal issue

comprises of three sub-legal issues which are;

7
1.1 Whether the Respondent’s conduct is in line with the standard of care of

medical practitioners as envisaged in the case of Bolam v Friem Hospital

Management Committee given that the Respondent had discharged her duty by

conducting a fresh physical examination of the Appellant after the Appellant referred

to the Respondent?

1.2 Whether the Respondent has discharged her duty of care as a medical

practitioner through adequately filing in the Pre-Authorisation Form despite the

Appellant’s failure to attend the subsequent appointment?

1.3 Whether, considering the Appellant is still in the preliminary stage prior to the

treatment, the Respondent had sufficiently discharged her duty to diagnose by giving

sufficient notice of the lump in the Appellant’s breast and also upcoming test?

2) Whether the Appellant’s injury was caused by the declination of her

insurance coverage and her own actions in cancelling the appointment

scheduled by the Respondent for further testing, rather than the conduct of

the Respondent?

[20] This is to determine whether the Respondent’s actions caused injury to the

Appellant and we seek the court to take into account that the Appellant did not fulfil

the elements to establish causation. Hence, there are three sub-issues to prove in

order to justify there is no causation as follows;

2.1 Whether the injury suffered by the Appellant was not factually caused by the

Respondent’s act pursuant to “but for” and “material contribution” test?

8
2.2 Whether or not, as far as causation in law is concerned, is it reasonably

foreseeable that the declination of the insurance coverage will result in damage to

the Appellant by using the “reasonable foresight” test?

2.3 Whether or not there is a break in the chain of causation due to the

Appellant’s own conduct of cancelling her appointment arranged by the Respondent

consequently failure of the Appellant to obtain treatment in due time?

3) Whether, as a result of non-breach by the Respondent of her duty of care

and break in the chain of causation (in case) the Court find there is a breach,

the Appellant is not entitled to damages?

[21] This issue is to determine whether or not the Appellant is still entitled to

damages even if there is non-breach by the Respondent of her duty of care and

there is break in the chain of causation.

9
E. SUBMISSION OF THE RESPONDENT

(1) FIRST MAIN ISSUE: WHETHER THE HIGH COURT JUDGE WAS CORRECT

IN DECIDING THAT THE RESPONDENT HAD NOT BREACHED HER DUTY AS A

DOCTOR AND WAS CLEARLY NOT NEGLIGENT ON THE BASIS THAT THE

RESPONDENT’S CONDUCT OF HAVING A CONSULTATION WITH THE

APPELLANT AND FILLING THE PRE-AUTHORISATION FORM IS IN

ACCORDANCE WITH STANDARD PROCEDURE OF THE MEDICAL

PRACTITIONER?

[22] Yang Arif, as far as the first issue concerned, it is mainly submitted that the

Respondent’s conduct was correct and she had not breach her duty as a doctor. This

is because the Respondent conducted the consultation and filled in the

Pre-Authorisation form in accordance with the practise of the medical practitioner.

Thus, Respondent’s conduct cannot constitute negligence towards the Appellant

because there are some elements of medical negligence that are not fulfilled which

is breach of duty.

[23] For the purpose of in-depth analysis of the first issue, the counsel categorised

it into three sub-issues as follow;

[24] Whether the Respondent’s conduct is in line with the standard of care of

medical practitioners as envisaged in the case of Bolam v Friem Hospital

Management Committee given that the Respondent had discharged her duty by

conducting a fresh physical examination of the Appellant after the Appellant referred

to the Respondent?

10
[25] Whether the Respondent has discharged her duty of care as a medical

practitioner through adequately filing in the Pre-Authorisation Form despite the

Appellant's failure to attend the subsequent appointment?

[26] Whether, considering the Appellant is still in the preliminary stage prior to the

treatment, the Respondent had sufficiently discharged her duty to diagnose by giving

sufficient notice of the lump in the Appellant’s breast and also upcoming test?

I-1ST SUB-ISSUE: WHETHER THE RESPONDENT’S CONDUCT IS IN LINE WITH

THE STANDARD OF CARE OF MEDICAL PRACTITIONERS AS ENVISAGED IN

THE CASE OF BOLAM V FRIEM HOSPITAL MANAGEMENT COMMITTEE GIVEN

THAT THE RESPONDENT HAD DISCHARGED HER DUTY BY CONDUCTING A

FRESH PHYSICAL EXAMINATION OF THE APPELLANT AFTER THE

APPELLANT REFERRED TO THE RESPONDENT?

[27] The respondent contended that the learned High Court judge was correct in

fact and precise in deciding that the Respondent conduct was in line with the

standard of care of medical practitioners. In view of the decision of Federal Court in

Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ

438 (Tagged as C1 page 28 of the Respondent’s Bundle of Authorities), the

current applicable tests for medical negligence in Malaysia can be summarised

where the Bolam Test is the applicable test by Malaysian courts in relation to the

standard of care expected of medical practitioners in relation to any diagnosis or

treatment, subject to the qualification in the decision of House of Lords in Bolitho

Appellant and City and Hackney Health Authority Respondents [1998] A.C. 232

(Tagged as C2 page 37 of the Respondent’s Bundle of Authorities), namely that

the body of medical opinion needs to withstand logical analysis. Whether there is a

11
breach of the standard of care of medical practitioners in this respect will generally

be determined in reference to the standards of such medical practitioners.

[28] Meanwhile, in relation to the duty of a medical practitioner to advise patients

of risks associated with their treatment, the applicable test is the test laid down in

Rogers v Whitaker [1992] 109 ALR 625 (Tagged as C3 page 47 of the

Respondent’s Bundle of Authorities) where the High Court of Australia decided

that patients have the right to be informed of material risks involved in the proposed

medical treatment or procedure. There is a material risk if a reasonable person in the

patient’s position, if warned of the risk, would be likely to attach significance to it, or if

the medical practitioner is or should be reasonably aware that the particular patient

when warned of the risk, would be likely to attach significance to it.The principle of

the case has been adopted by the Federal Court in Foo Fio Na v Dr Soo Fook Mun

& Anor [2007] 1 MLJ 593. This effectively means that it is the Courts which will

decide whether a patient has been properly advised of the risks associated with a

proposed treatment.

[29] So, with regard to the current situation, the test to determine what is the

standard of care demanded of a doctor was established by McNair J. in Bolam v

Friern Hospital Management Committee [1957] 2 AII 118 (Tagged as C4 page

53-54 of the Respondent’s Bundle of Authorities), “the test is the standard of the

ordinary skilled man exercising and professing to have that special skill. It is well

established law that it is sufficient if he exercises the ordinary skill of an ordinary

competent man exercising that particular art. In the case of a medical man,

negligence means failure to act in accordance with the standards of reasonably

competent medical men at the time. I myself would prefer to put it this way, that he is

12
not guilty of negligence if he has acted in accordance with a practice accepted as

proper by a responsible body of medical men skilled in that particular art. Putting it

the other way round, a man is not negligent, if he is acting in accordance with such a

practice, merely because there is a body of opinion that would take a contrary view.”

[30] Next, in the Court of Appeal case of Shalini a/p Kanagaratnam v Pusat

Perubatan Universiti Malaya (formerly known as University Hospital) & Anor

[2016] 3 MLJ 742 (Tagged as C5 page 69 - 71 of the Respondent’s Bundle of

Authorities), where in this case the appellant was diagnosed with immature

teratoma which categorised as malignant tumour by the second respondent.

Consequently, the second respondent conducted an operation to remove the left

ovary of the appellant. As a result of the ovary excision, the appellant was rendered

permanently incapable of giving. The appellant contended that she had been

wrongly diagnosed by the second respondent and claimed for medical negligence.

The court held that “in cases of professional negligence and/or medical negligence,

the plaintiff has to prove four elements. They are (i) duty of care; (ii) breach of

standard of care; (iii) breach of duty care; and (iv) caused damages.” In dismissing

the appeal, the court held that the plaintiff must establish the appropriate standard of

care and demonstrate that the standard of care has been breached, with expert

evidence and that the respondent had proven that he had acted in accordance with

the accepted and standard medical practice.

[31] Applying the precedent case to the current situation, the respondent has

indeed acted in accordance with the standard of care of medical practitioner when

the Respondent had enquired into the history of the said lump by the Appellant, the

health condition of the Appellant and did a physical examination on the said lump.

13
The counsel invites the Honourable Court to consider the authority of Court of

Appeal in the case of Dr Premitha Damodaran v GTK (a child suing through her

father and litigation representative, Taranjeet Singh a/l Bhagwan Singh) & Anor

and another appeal [2022] 3 MLJ 484 (Tagged as C6 page 98 of the

Respondent’s Bundle of Authorities), on the issue of enquiries from the patient’s

previous doctors or hospitals on medical history, the court held that “No useful

purpose in imposing a general duty on a doctor to make any enquiries from the

patient’s previous doctors or hospitals… Such a burden, if imposed, would also

mean that doctors would be unable to safely rely on the oral history given by a

patient, even if they are properly documented and no matter how clear and

exhaustive.” Applying the above mentioned cases in the current circumstances, it is

submitted that the Respondent did not refer to the referral letter as the Appellant was

physically present in front of the Respondent and the Respondent had the benefit of

hearing first-hand from her and physically examining her. This is to prove that the

Respondent conduct had in fact in line with the medical practitioner and the conduct

by the Respondent had also been accepted by the Appellant own witness, that the

Respondent conduct can be regarded as a good medical practice since she do her

own fresh examination and assessment of the patient and not rely on any notes

prepared by any doctor. Besides, it is reasonable to believe that the Appellant

formed the malignant tumour a year prior to the consultation between Appellant and

Respondent as in “Oct 2019” because to-date, there is no scientific evidence on the

rate of growth of tumour and sizes of tumour as per duration of formation of tumour.

This can be evident via a journal article Estimating tumor growth rates in vivo by

Anne Talkington and Rick Durrett (Tagged as A1 page 365-366 of the

Respondent’s Bundle of Authorities), it can be summarised that determining the

14
exact time when cancer formed based solely on the size of a tumour is challenging.

The growth rate of tumours can vary significantly among individuals and even within

the same type of cancer. Additionally, tumours can be present for a considerable

period before they become detectable or symptomatic.

[32] Medical professionals often use imaging techniques, such as CT scans or

MRIs, to estimate the size of a tumour. However, these methods do not provide a

precise timeline of when the cancer initially formed. Tumour growth is influenced by

various factors, including the type of cancer, its biological characteristics, and the

individual’s overall health. Hence, it was reasonable for the Respondent to believe

the information provided by the patient due to the above rationale and the fact the

two people who accompanied her did not object or interrupt as the Appellant

provided the said information.

[33] The counsel wishes to refer Yang Arif to the decision of Court of Appeal in the

case of Dr Wan Himratul Azna bt Wan Harun v Dato’ Dr Rohan Malek Johan &

Ors [2017] 3 MLJ 82 (Tagged as C7 page 122 and 125 of the Respondent’s

Bundle of Authorities). In this case the plaintiff, a senior pathologist, sought

medical help at Serdang Hospital in April 2007 for painful menses who was

diagnosed with possible endometriosis and scheduled a diagnostic laparoscopy.

However, the plaintiff missed the appointment and returned in July 2008 for the same

issue. Again, a laparoscopy was suggested, but the plaintiff opted for stronger pain

medication. Eventually, a private consultant found an ovarian cyst, and the plaintiff

underwent joint surgery by two specialists in August 2011, resolving her pain issues.

The plaintiff sued the first and third defendants for medical negligence and the

second defendant as their employer, alleging direct liability for organizational failures.

15
In dismissing the appeal, the court affirmed the decision of the High Court with

respect to the standard of care and skill required of a medical practitioner in the

treatment of a patient. It was to be a fair and reasonable standard commensurate

with the skill expected to be exercised and not a very high standard. In relation to the

treatment accorded to the plaintiff at Serdang Hospital and the third defendant, it was

the plaintiff’s choice not to undergo the diagnostic laparoscopy suggested.

[34] Applying the precedent case in the current case where the factual matrix of

both cases is materially similar in the sense that it was the Appellant’s own conduct

and inaction to not undergo the test as has been suggested by the Respondent. In

the current scenario, the Respondent had scheduled an appointment for the

Appellant five days after their physical examination to undergo further tests and

commence treatment. It must be highlighted that Respondent stressed out the

importance of the further test to the Appellant in which it was agreed by the Appellant

to attend to the said date but for reasons unknown, the Appellant cancelled the

appointment and never consulted the Respondent again.

[35] In addition, it must be noted that the Respondent indeed took extra

reasonable care by enquiring about the Appellant from her first doctor. This indeed

exemplifies her caring and meticulous nature despite her humongous workload as a

specialist in the hospital.The Respondent cannot be said to have breached her duty

merely because she did not inquire about the reason why the Appellant cancelled

the appointment since it is not against the Medical Practice. Therefore, the

Respondent’s conduct is in line with the standard of care of a medical practitioner in

line with the Bolam principle considering that the respondent had fulfilled her duty by

16
performing a new physical examination of the appellant following the appellant’s

referral to the respondent.

II-2ND SUB-ISSUE: WHETHER THE RESPONDENT HAS DISCHARGED HER

DUTY OF CARE AS A MEDICAL PRACTITIONER THROUGH ADEQUATELY

FILING IN THE PRE-AUTHORISATION FORM DESPITE THE APPELLANT'S

FAILURE TO ATTEND THE SUBSEQUENT APPOINTMENT?

[36] Yang Arif, the Appellant highlighted the notion duty to treat, however we need

to emphasize to the court, based on the material facts of the case, that no treatment

has started or commenced yet since the Respondent had only done the physical

examination and had scheduled and explained the importance of further test to the

Appellant but as facts displays the Appellant cancelled the appointment. Therefore,

the accurate duty that could be imposed is either duty to diagnose or duty to inform

the risk whereby in our facts it concerns with duty to diagnose. Our second

sub-issue, pertaining to the Respondent conduct indeed had already discharged her

duty of care by adequately filing the Pre-Authorisation form despite the Appellant’s

failure to attend subsequent appointments. In the context of medical practice, the

duty to diagnose refers to the responsibility of a medical practitioner to take

reasonable care in diagnosing a patient’s condition. This includes taking a proper

medical history, investigating the patient’s symptoms, making proper differential

diagnoses, and referring the patient to specialists when needed.

[37] The counsel wishes to refer Yang-Arif to the judgement in the High Court case

of Abdul Ghafur bin Mohd Ibrahim v Pengarah, Hospital Kepala Batas & Anor

[2010] 6 MLJ 181 (Tagged as C8 page 140 of the Respondent’s Bundle of

17
Authorities), where in this case the plaintiff’s wife died as a result of subarachnoid

haemorrhage (‘SAH’) due to the rupture of an aneurysm, a rare condition with a high

mortality rate. The plaintiff claimed that negligence by the defendants’ medical

officers led to his wife’s death and raised several grounds of negligence. In

discussing the issue on whether the Doctor negligent in failing to make a diagnosis

of SAH when deceased presented herself at Kepala Batas Hospital and was

examined by her at 2.15pm on 10 October 2006, the court is of the view that the

actions taken by Doctor was reasonable of a competent or skilled medical officer and

her failure to diagnose the deceased with SAH at 2.15pm on 10 October 2006 is

reasonable and not an act of negligence. From the referral letter P2 from Klinik

Bersatu, the doctor who referred the deceased similarly did not diagnose the

deceased to have SAH although the symptoms of severe headache and vomiting

were present. Therefore, to admit, observe and conduct further tests on the

deceased would seem a reasonable course of action before the diagnosis, which the

Doctor had done. This court finds that there is no breach of the duty of care by the

defendants’ servants or agents.

[38] Although in this case the High Court decision was to use the approach by

Roger v Whitaker [1992] 109 ALR 625 in resolving the issue pertaining the issue of

diagnose which was no longer relevant in the current days as provided in

Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ

438 (Tagged as C1 page 28 of the Respondent’s Bundle of Authorities) whereby

the test in Rogers v Whitaker is restricted only to the duty to advise of risks,

whereas the Bolam test applies to the standard of care for diagnosis or treatment,

the counsel would like to argue that this case is still relevant to be used even using

the Bolam principle since if we look at the facts of the case Dr Suhaila conduct had

18
in fact in line with the medical practitioner supported with the expert witness by

showing that although Dr Suhaila did not list down the causes of warning headache,

she has nevertheless recognised the fact that the deceased might have a serious

condition or a headache that required medical attention. She had admitted the

deceased, assessed and treated the deceased with infusion fluid, carried out blood

investigations and monitored the deceased’s GCS score. The various actions taken

by Dr Suhaila indicate that she did not ignore the earlier history of the deceased at

Klinik Bersatu which was narrated in the referral letter although the deceased did not

advance similar earlier complaints at 2.15pm at Kepala Batas Hospital.

[39] In Ku Jia Shiuen (an infant suing through her mother and next friend,

Tay Pei Hoon) & Anor v Government of Malaysia & Ors [2013] 4 MLJ 108

(Tagged as C9 page 166 of the Respondent’s Bundle of Authorities), where the

High Court highlighted that Medical records and reports that are well kept are the

hallmark of a good medical practice. Such records should be accurate, legible,

comprehensive and up-to-date, and contribute to easy recall of patient information

for continuity and follow-up of patients, as well as for future reference. This well

settled principle governing medical practitioners is encapsulated in a booklet entitled

‘Good Medical Practice’ issued by the Malaysian Medical Council (‘MMC’). It serves

as a guide to the medical practitioners to meet the standard of case professionalism

and professional obligations expected of medical practitioners as set out by the

MMC.

[40] During the course of the said consultation with the Respondent, the

Respondent stated that she had inquired into the history of the Appellant complaints

of the said lump including the time when she first discovered any symptoms or

19
noticed any early breast changes. According to the Respondent, the response from

the Appellant was that the said lump was noticed about a year ago. In anticipation of

the Appellant to undergo the test scheduled by the Respondent, the Respondent had

discharged her duty by recording statement by the Appellant in her Electronic

Medical Record (“EMR”) and filled the form based on the evidence given by the

Appellant during the physical examination in which the Appellant discovered the

symptoms first appeared in ‘Oct 2019’ and the evidence had been well recorded.

The Respondent had discharged her duty to fill in the relevant information in the pre

authorisation form in order for the said form to be submitted for insurance coverage

for the upcoming tests and treatments in which from the facts it was indeed had been

submitted by the hospital to Lonpac Insurance Bhd. In fact, the Respondent had also

maintained the above fact in her medical report and her letter.

[41] In the case of Sanmarkan a/l Ganapathy & Anor (as administrators of the

estate of Saradhamani a/p Doraisamy Gopal, the deceased) v Dato’ Dr V

Thuraisingham & Ors [2012] 3 MLJ 817 (Tagged as C10 page 192 of the

Respondent’s Bundle of Authorities), where the High Court allowing the plaintiff

claim that the deceased could have been diagnosed as suffering from colon cancer

much earlier given her medical history. In contrast with this case, the Respondent

has yet to specifically diagnose the Appellant let alone start any further treatment as

the Appellant did not attend the appointment even though the importance of the test

has been explained by the Respondent and the lump that was suffered by the

Appellant was malignant.

[42] On the other hand, the Appellant had failed to particularize in what manner

the Respondent was negligent in recording the date symptoms first appeared on

20
whether the Respondent recorded the wrong date despite being told a different date

or whether a date was recorded without the Respondent being asked the same.

Furthermore, the Appellant on the balance of probabilities failed to prove that she did

not get any treatment during the interim period when the Appellant insurance claim

was declined because the Appellant did receive treatment at the Penang Adventist

Hospital approximately four months after the said consultation with the Respondent .

It was the Appellant’s choice to cancel the appointment and never consulted with the

Respondent again. Therefore, the Respondent has discharged her duty of care as a

medical practitioner through adequately filing in the Pre-Authorisation Form despite

the Appellant’s failure to attend the subsequent appointment.

III- 3RD SUB-ISSUE: WHETHER, CONSIDERING THE APPELLANT IS STILL IN

THE PRELIMINARY STAGE PRIOR TO THE TREATMENT, THE RESPONDENT

HAD SUFFICIENTLY DISCHARGED HER DUTY TO DIAGNOSE BY GIVING

SUFFICIENT NOTICE OF THE LUMP IN THE APPELLANT’S BREAST AND

ALSO UPCOMING TEST?

[43] Yang Arif, we humbly submit to the honourable court that the Respondent has

exercised reasonable care in making diagnosis to the Appellant. A high standard of

care is imposed on a professional like a doctor. Thus, a doctor is required by the law

to exercise reasonable care and skill in making a diagnosis. A wrong diagnosis does

not itself amount to negligence if the doctor has observed the required standard of

care unless the patient can establish that the doctor failed to carry out an

examination or a test which the patient’s symptoms called for or his conclusion was

one that was not reasonable. In order to determine whether the Respondent had

sufficiently discharged her duty to diagnose, the counsel will use the “Bolam Bolitho

21
Standard”. Therefore, the counsel wishes to refer Yang Arif to the case of Bolam v

Friern Hospital Management Committee [1957] 2 AII 118 (Tagged as C4 page 53

of the Respondent’s Bundle of Authorities), “The test is the standard of the

ordinary skilled man exercising and professing to have that special skill. It is well

established law that it is sufficient if he exercises the ordinary skill of an ordinary

competent man exercising that particular art. In the case of a medical man,

negligence means failure to act in accordance with the standards of reasonably

competent medical men at the time. I myself would prefer to put it this way, that he is

not guilty of negligence if he has acted in accordance with a practice accepted as

proper by a responsible body of medical men skilled in that particular art. Putting it

the other way round, a man is not negligent, if he is acting in accordance with such a

practice, merely because there is a body of opinion that would take a contrary view.”

Next, in the case of Bolitho Appellant and City and Hackney Health Authority

Respondents [1998] A.C. 232, in the House of Lords (Tagged as C2 page 37 of

the Respondent’s Bundle of Authorities), it was held that “In cases of diagnosis

and treatment there are cases where, despite a body of professional opinion

sanctioning the defendant's conduct, the defendant can properly be held liable for

negligence (I am not here considering questions of disclosure of risk). In my

judgement that is because, in some cases, it cannot be demonstrated to the judge's

satisfaction that the body of opinion relied upon is reasonable or responsible.” The

‘Bolam Bolitho Standard’ was applicable in Malaysia. In the case of Zulhasnimar bt

Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438, in the

Federal Court, (Tagged as C1 page 28 of the Respondent’s Bundle of

Authorities), the court held that “The test propounded by the Australian case in

Rogers v Whitaker and followed by this court in Foo Fio Na in regard to standard of

22
care in medical negligence is restricted only to the duty to advise of risks associated

with any proposed treatment and does not extend to diagnosis or treatment. With

regard to the standard of care for diagnosis or treatment, the Bolam test still applies,

subject to qualifications as decided by the House of Lords in Bolitho.” Therefore,

from the above cases, the present essentials elements that need to be fulfilled in

order to discharge the duty to treat are the doctor must have acted in accordance

with accepted medical practise, the accepted medical practise must be regarded as

proper by a responsible body of medical men skilled in the art and the court will

decide which medical opinion reaches up to a logical analysis.

[44] Next, in the case of Chin Keow v Government of Malaysia [1967] 1 WLR

813 in the Privy Council (Tagged as C11 page 199 of the Respondent’s Bundle

of Authorities), the deceased died within an hour after a doctor gave her penicillin.

The appellant mother claimed damages against the respondents, the Government,

and the doctor, alleging negligence as the doctor failed to inquire or to carry out any

tests to ascertain whether the deceased was allergic to penicillin before prescribing

the injection. The trial judge found that the respondents were liable for negligence

and awarded damages. On appeal, the Federal Court of Malaysia rejected the

finding of negligence and dismissed the action. The appellant appealed. The Privy

Council, allowing the appeal, held that on the evidence before the trial judge, the

doctor failed to exercise the ordinary professional skill. The fact that he gave similar

treatment on the average to a large number of patients each day did not exempt him

from the duty of care, which a doctor owed to every patient. The Federal Court was

wrong in rejecting the finding of the judge and substituting conclusions of its own.

Next, the counsel which to refer Yang Arif to the case of Sanmarkan a/l Ganapathy

& Anor (as administrators of the estate of Saradhamani a/p Doraisamy Gopal,

23
the deceased) v Dato’ Dr V Thuraisingham & Ors [2012] 3 MLJ 817 (Tagged as

C10 page 192 of the Respondent’s Bundle of Authorities), where the High Court

allowing the plaintiff claim that the deceased could have been diagnosed as suffering

from colon cancer much earlier given her medical history. The judge further ruled

that “if the first and second defendants had carried out or ordered the basic and/or

necessary investigation on the deceased's condition, it would most probably be that

colon cancer could have been detected earlier and the deceased would have the

better prospect of recovery. Consequently, I hold on a balance of probabilities that

the failure of or the omission by the first and second defendants to investigate further

on the deceased's signs and symptoms which were of similar nature prior to 15

December 2000 and which can be construed as recurring and to diagnose her colon

cancer earlier constitutes a breach of the standard of care and negligence on their

part.”

[45] In a medical textbook, Bailey & Love’s Short Practise Surgery written by

Norman S. Williams, P. Ronan O’Connel and Andrew W. McCaskie (Tagged as

T1 page 357 and 358 of the Respondent’s Bundle of Authorities), in order to

investigate the breast symptoms, there are numbers of investigations that can assist

in the diagnosis of any breast disease. Among the methods to diagnose are through

mammography, ultrasound, and needle biopsy.

[46] Applying the ‘Bolam Bolitho Standard’ to the current situation, the Respondent

had indeed acted in accordance with the accepted medical practise. The Appellant’s

argument that the Respondent did not take serious steps to diagnose and help the

respondent are baseless. Supposedly, the Appellant has to take into consideration

that the Respondent on the day of the consultation conducts a physical examination.

24
Distinguishing the case of Chin Keow v Government of Malaysia [1967] 1 WLR

813, the Respondent has exercised her duty to diagnose the Appellant by

considering the Appellant’s medical history and pre-existing illness. The Respondent

had conducted a fresh physical examination to the Appellant and not referred to the

letter from Dr Por Poe Loon from the Union Clinic. When the Appellant was referred

to the Respondent who is a consultant Breast and Endocrine Surgeon, the

Respondent had enquired into the history of the Appellant’s breast lump including

the time when the Appellant was first discovered or noticed any breast changes.

[47] Distinguishing the case of Sanmarkan a/l Ganapathy & Anor (as

administrators of the estate of Saradhamani a/p Doraisamy Gopal, the

deceased) v Dato’ Dr V Thuraisingham & Ors [2012] 3 MLJ 817 (Tagged as C10

page 192 of the Respondent’s Bundle of Authorities), the Respondent has yet to

to specifically diagnose the Appellant. However, the Respondent conducted a

physical examination, which is one of the substantial steps to diagnose a person with

a lump in a breast to the Appellant. Based on the symptoms that appeared that there

was a lump in the right breast of the Appellant, the Appellant was clinically

diagnosed with a large breast mass of 12 cm and it is sufficient for the Respondent

to suspect that the said lump is malignant. Here, the term ‘malignant’ described by

the Respondent is sufficient to prove that there was presence of cancerous cells. In

addition, the Respondent had proposed to conduct tests on the Appellant but the

Appellant is the one who cancelled the appointment and never consulted the

Respondent again. Therefore, having a physical examination is a substantial step of

the early detection in order to determine the most accurate diagnosis for the said

lump.

25
[48] On the other hand, the Respondent proposed to undergo certain tests and the

Respondent had explained the needs of tests. Among the tests are Repeated Breast

Ultrasound, Mammogram and Core biopsy of the right breast mass. By referring to

the Bailey & Love’s Short Practise Surgery written by Norman S. Williams, P.

Ronan O’Connel and Andrew W. McCaskie, all of the tests proposed to be

conducted by the Respondent is the essential procedure in order to determine the

most accurate diagnosis of the said lump. Therefore, it can be proven that the

Respondent has acted in accordance with the accepted medical practice.

[49] In addition, the medical procedure performed by the Respondent during

consultation with the Appellant on 16th of October 2020 can be regarded as proper

and in accordance with the medical practise This is based on the evidence of Dr. Lim

Soo Soo during cross-examination where she confirmed and accepted that the

medical procedure performed by the Respondent by doing her own physical

examination and assessment of the Appellant.

[50] Next, I would like to affirm the decision of the learned High Court judge where

the judge had no hesitation in concluding that the Respondent had acted in

accordance with the medical practice at all material times and was not negligent.

Therefore, it can be inferred that the judge had decided that the medical opinion

provided by Dr Lim Soo Soo reaches up to the logical analysis and the Respondent

had performed her duty in accordance with the standard of care required for a

medical practitioner.

26
2) SECOND MAIN ISSUE: WHETHER THE INJURY SUFFERED BY THE

APPELLANT WAS NOT DUE TO THE RESPONDENT’S CONDUCT BUT DUE TO

THE DECLINATION OF HER INSURANCE COVERAGE AND DUE TO THE

APPELLANT’S OWN CONDUCT BY CANCELLING THE APPOINTMENT

ARRANGED BY THE RESPONDENT FOR FURTHER TEST?

[51] Yang Arif, as far as the second issue is concerned, it is mainly submitted that

the injury suffered by the Appellant was not due to the Respondent’s conduct but due

to the declination of the Appellant’s insurance and her own conduct by cancelling the

appointment arranged by the Respondent. Due to these, the Respondent is said to

be not liable for negligence on the basis that the injury suffered by the Appellant was

not because of the Respondent’s conduct thus there is a break in the chain of

causation.

[52] For the information of the court, the second issue would be primarily dealing

with the related issues regarding causation and therefore, it is submitted that within

this issue, the counsel design three comprehensive sub-issues which are:

[53] Whether the injury suffered by the Appellant was not factually caused by the

Respondent’s act pursuant to “but for” and “material contribution” test?

[54] Whether or not, as far as causation in law is concerned, it is reasonably

foreseeable that the declination of the insurance coverage will result in damage to

the Appellant by using the “reasonable foresight” test?

27
[55] Whether or not there is a break in the chain of causation due to the

Appellant’s own conduct of cancelling her appointment arranged by the Respondent

and failure of the Appellant to obtain treatment in due time?

I-1ST SUB-ISSUE: WHETHER THE INJURY SUFFERED BY THE APPELLANT

WAS NOT FACTUALLY CAUSED BY THE RESPONDENT’S ACT PURSUANT TO

“BUT FOR” AND “MATERIAL CONTRIBUTION” TEST?

[56] Yang Arif, the first sub-issue for the second main issue, is regarding whether

the Respondent’s conduct has in fact caused the injury suffered by the Respondent.

The test used is the ‘but for test’. As propounded in the case of Dr Noor Aini binti

Haji Sa’ari v Sa-Art Sae Lee & Anor [2016] 1 MLJ 317, in the Court of Appeal

(Tagged as C12 page 209 of the Respondent’s Bundle of Authorities), the first

plaintiff had been pregnant with twins, one of whom was the second plaintiff. There

were a number of complications and one of the twins died in utero.This led to

Caesarean section to deliver the second plaintiff. When the second plaintiff

subsequently developed Cerebral Palsy (CP), it was contended that this had been

caused by the defendant’s doctor’s negligence, including failing to detect the death

of the other twin sooner. The plaintiff contended that ‘but for’ the defendant doctor’s

negligence to detect the death of one of the twins, the second plaintiff suffered

cerebral palsy. The court held that there was no evidential basis for a finding that the

second respondent’s ‘neurological damage in-utero’ or the CP, was probably caused

by ‘… the in-utero foetal demise of the co-twin which led to the feto-foetal TTTS

between the surviving twin and the demised twin’, as stated by the learned Judicial

Commissioner. Even if the CP were indeed caused by feto-foetal transfusion as the

Judicial Commissioner held, early detection would have made no difference. There is

28
therefore nothing one can do to avoid the CP in the circumstances. Early detection of

the death of the co-twin would make no difference, as there is no causal link

between early detection and the CP.

[57] Next, in the case of Elizabeth Chin Yew Kim & Anor v Dato’ Ong Gim Huat

(sued as public officer of Hospital Lam Wah Ee) and other appeals [2017] 1

MLJ 328, in the Court of Appeal (Tagged as C13 page 217 of the Respondent’s

Bundle of Authorities), “the courts often look to the test of causation commonly

known as the ‘but for’ test. It simply means that ‘but for’ the defendant’s negligent

act, the injury would not have occurred. It is in essence a factual inquiry and in

medical negligence cases it is often resolved through expert evidence.”

[58] Applying the precedent case to the current situation, the injury suffered by the

Appellant was not ‘but for’ the Respondent’s negligence conduct. The Appellant’s

argument that the Respondent was negligent in her notation in the Pre-Authorisation

form which caused the Appellant’s insurance coverage to be declined and therefore,

delayed the Appellant’s treatment is irrelevant. Supposedly, the Appellant has to

consider the fact that the Appellant had another treatment in Penang Adventist

Hospital during the interim period. On the other hand, I would like to affirm the

decision of the High Court which provides that even if the Appellant has any financial

constraints, she could have gone to Penang Government Hospital to get any

necessary tests or treatment. Therefore, it can be proven that the Respondent’s

conduct has not in fact caused the death towards the Appellant.

[59] The second test that will be used in determining the issue of factual causation

is the material contribution test. The plaintiff has to show on the balance of

probabilities that the defendant’s negligence materially contributed to the end of the

29
injury. Where there are two or more contributing factors, only one which is the

defendant’s negligence, it is sufficient for the plaintiff to establish that the negligent

act of the plaintiff is a necessary part of the totality of the damage.

[60] The counsel wishes to refer Yang Arif to the case of Wilsher v Essex Area

Health Authority [1988] 1 All ER 871, in the House of Lords (Tagged as C14

page 221 of the Respondent’s Bundle of Authorities), the facts were that the

infant plaintiff was born prematurely suffering from various illnesses including oxygen

deficiency. The plaintiff was later discovered to be suffering from an incurable

condition of the retina resulting in near blindness. The plaintiff’s retinal condition

could have been caused by excess oxygen but it also occurred in premature babies

who were not given oxygen but who suffered from five other conditions common in

premature babies and all of which had afflicted the plaintiff. At the trial, the medical

evidence was inconclusive, whether the excess had caused or materially contributed

to the plaintiff's retinal condition. It was held that “where a plaintiff’s injury was

attributable to a number of possible causes, one of which was the defendant’s

negligence, the combination of the defendant’s breach of duty and the plaintiff's

injury did not give rise to a presumption that the defendant had caused the injury.

Instead, the burden remained on the plaintiff to prove the causative link between the

defendant’s negligence and his injury, although that link could legitimately be inferred

from the evidence. Since the plaintiff’s retinal condition could have been caused by

any one of a number of different agents and it had not been proved that it was

caused by the failure to prevent excess oxygen being given to him, the plaintiff had

not discharged the burden of proof as to causation.” Next, in the case of McGhee v

National Coal Board [1973] 1 WLR 1, in the House of Lords (Tagged as C15

page 235 and 236 of the Respondent’s Bundle of Authorities), where the court

30
held that “it has often been said that the legal concept of causation is not based on

logic or philosophy. It is based on the practical way in which the ordinary man's mind

works in the everyday affairs of life. From a broad and practical viewpoint I can see

no substantial difference between saying that what the defender did materially

increased the risk of injury to the pursuer and saying that what the defender did

made a material contribution to his injury. I would therefore allow this appeal.

[61] Applying the case of Wilsher v Essex Area Health Authority [1988] 1 All

ER 871, the Appellant failed on the balance of probabilities to prove that the injury

suffered by the appellant was factually caused by the Respondent’s act pursuant to

the ‘material contribution test’. Here, I would like to affirm the decision of the learned

High Court judge that the evidence produced by the Appellant was unreliable and

inconsistent.

[62] Distinguishing the case of McGhee v National Coal Board [1973] 1 WLR 1

to the current situation, the actions taken by the Respondent indeed do not materially

contribute to the injury suffered by the Appellant. The Appellant’s argument that due

to lack of proactive measures on the Respondent’s part for not contacting or making

follow-up with Appellant and her husband and did not elaborate in detail about

‘malignant’ had materially contributed to the injury are totally not accurate. On the

day where the Appellant met the Respondent for the consultation, the Respondent

was conducting thorough physical examination on the Appellant in which the

Appellant was clinically diagnosed with a large breast mass of 12 cm which the

Respondent suspected was malignant. In this situation, the Respondent has taken

sufficient steps in accordance with the medical practice conduct by informing the

Appellant that she suspected the 12 cm breast was malignant. The term ‘malignant’

31
refers to the presence of cancerous cells that have the ability to spread and to

destroy tissue. On the other hand, Oxford Dictionary defines Malignant as a tumour

or a disease that cannot be controlled and is likely to cause death. Any reasonable

man would know that the word malignant is sufficient enough to describe that it is

something that is serious and may cause death if it is not treated.

[63] On the other hand, the Respondent has taken sufficient steps to mitigate the

injury suffered by the Appellant where she has proposed to conduct certain tests and

she has well explained the need for further tests to the Appellant. In addition, the

Appellant has agreed and consented to undergo certain tests on 21st October 2020,

four days after the Appellant met the Respondent for consultation. However, the

Appellant was the one who cancelled the appointment and never consulted the

Respondent again. Same goes with the circumstance where the insurance coverage

of the Appellant has been declined, if the ‘material contribution’ test is applied, the

result will still be in favour of the Respondent. Therefore, the Respondent has taken

proactive steps and didn’t materially contribute to the injury suffered by the

Appellant.

II-2ND SUB-ISSUE: WHETHER OR NOT, AS FAR AS CAUSATION IN LAW IS

CONCERNED, IT IS REASONABLY FORESEEABLE THAT THE DECLINATION

OF THE INSURANCE COVERAGE WILL RESULT IN DAMAGE TO THE

APPELLANT BY USING THE “REASONABLE FORESIGHT” TEST?

[64] Yang Arif, the second sub-issue for the second main issue, is regarding

whether or not there is a break in the chain of causation of law between the

Respondent’s conduct and the injury suffered by the Appellant.

32
[65] The second element of causation that must be proven to establish negligence

is causation in law which requires the Appellant to demonstrate whether the injury

suffered is one which is recoverable in negligence and not too remote. This issue

has been rarely raised in cases of medical negligence since the rules of remoteness

of damage deal with the damage that occurs in an exceptional and unusual fashion

and not outcomes that are frequently predictable. Nevertheless, it warrants a

reiteration that the rules of remoteness of damage is also vital in the current case to

support the submission that there is indeed a break in the chain of causation.

[66] The “reasonable foresight test” will be applied to determine whether or not

causation of law is fulfilled. Under this test, the query that needs to be asked is does

the tortfeasor reasonably foresee that his conduct will result in the damage to the

claimant? The Respondent is said not to be in negligence if the injury suffered by the

Appellant is an injury that is not reasonably foreseeable by the Respondent. The

injury sustained by the Appellant is deemed to be too remote to establish negligence

on the part of the Respondent.

[67] Yang-Arif, the counsel wishes to refer to the judgement in the case of

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon

Mound (No 1) [1961] AC 338 in the Privy Council (Tagged as C16 page 243 of

the Respondent’s Bundle of Authorities) explaining the meaning of reasonably

foreseeable the damage. In the precedent case, the Appellant claimed compensation

for the damage of the wharf done by the Respondent due to furnace oil being set on

fire and spread on water. It was held by the Privy Council that: “on the footing that

the damage was the direct result of the escape of the oil, that, applying the test of

foreseeability, the appellant who, as found by the trial judge, could not reasonably be

expected to have known that the oil would catch fire, were not liable for the damage.”

33
Moreover, according to Medical Negligence Concept in Malaysia: A Legal Study

by Poppy Putri Hidayani, Muhammad Hatta,Sumiadi and Zulfan (Tagged as A2

page 392 of the Respondent’s Bundle of Authorities ) also highlighted the

principles in The Wagon Mound’s case. “In the case of The Wagon Mound, it is

mentioned that the plaintiff’s loss must be directly attributable to the act of the

physician who cared for it. If there is any other cause then the doctor is not liable

for the loss of the plaintiff. Doctors cannot be prosecuted because the harm

received by the patient is not caused by the negligence performed by the doctor

during the course of surgery or medical treatment.”

[68] Applying the precedent case in the current case, the Respondent’s conduct of

causing the declination of the coverage insurance and the injury suffered by the

Appellant is said to be too remote on the basis that Respondent could not foresee

the injury suffered by using the “reasonable foresight test”. It could not reasonably be

expected that because of the declination of the coverage insurance, the Appellant

could not get any treatment at all in a hospital which later caused the injury suffered

by her. This is because the Appellant still can get her necessary treatment in the

government hospital even if the Appellant was having financial constraints. In

addition, it can be proven based on the medical fees that during the period when the

Appellant insurance coverage was declined, the Appellant in fact already received

treatment in Penang Adventist Hospital. Thus, it is not correct to say that the

Respondent's conduct is the main reason the Appellant suffered such injury because

the injury was not directly attributable to the conduct of the Respondent but due to

other factors.

[69] The counsel would also invite the court to follow the case of Mohd Sabri bin

Mohamad Zin v Dr M Nachiappan & Anor [2017] MLJU 2443 in the High Court

34
of Malacca (Tagged as C17 page 288 of the Respondent’s Bundle of

Authorities). The aforementioned case is relating to professional medical

negligence where the Plaintiff claimed damages from the 1st Defendant due to

negligently performing the surgery known as anterior cervical discectomy with

rhyzolysis and cage insertion. The High Court judge emphasised the principle of

causation in this case in which Vazeer Alam Mydin Meera J stated: “As for

remoteness of damage, the law is well settled, in cases of medical negligence where

it is foreseeable that the negligence of a medical practitioner would cause the patient

to suffer injury, liability will follow. Jackson & Powell on Professional Negligence, Fifth

Edition (2002) Sweet & Maxwell, on the question of foreseeability of damage states

that principle as follows; In the majority of medical negligence cases, the injury of

which the claimant complains is either the continuance of some illness which ought

to have been cured or prevented or else the infliction of some new injury in the

course of treatment. In practice the injury is normally “foreseeable”, whether the

contractual or tortious test is applied. Since the defendant is a medical man, he is

well placed to foresee the consequence, of his own mistakes.” The judge further

decided that the kind of damage suffered by the Plaintiff is one that the 1st

Defendant would reasonably have foreseen flowing from the Surgery and agreed

that the requirement of “reasonable foreseeability” has been satisfied.

[70] Distinguishing the precedent case with the current case, it can be observed

that the injury suffered by the Appellant is not the kind of injury that the Respondent

would reasonably have foreseen. Any medical practitioner would not have

reasonably foreseen that due to the decline of insurance, the Appellant could not

receive any treatment because there are other options for the Appellant to receive

treatment which is by going to the government hospital. In accordance with the

35
principles referenced in Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor

[2017] MLJU 2443, since it is not foreseeable that the negligence of the Respondent

would cause the Appellant to suffer such injury, the Respondent is not be liable for

medical negligence.

[71] Therefore, the Respondent reaffirmed that the learned High Court judge was

correct in fact and in law in deciding that the Appellant failed to prove or substantiate

the damage she alleged to have suffered.

III-3RD SUB-ISSUE: WHETHER OR NOT THERE IS A BREAK IN THE CHAIN OF

CAUSATION DUE TO THE APPELLANT’S OWN CONDUCT OF CANCELLING

HER APPOINTMENT ARRANGED BY THE RESPONDENT AND FAILURE OF

THE APPELLANT TO OBTAIN TREATMENT IN DUE TIME?

[72] Yang Arif, the third issue is relating to the legal maxim of novus actus

interveniens to prove to the Court that Respondent should not be held liable because

the injury suffered by the Appellant is due to her own conduct. It is submitted that the

Appellant’s claim in causation will fail when the act of the Appellant herself

intervened between the Respondent’s negligence and damage suffered by the

Appellant. In medical negligence cases, the patient's own conduct may break the

chain of causation in which to determine whether the act of the patient is capable to

break it or not, the Court will consider the reasonableness of the patient’s conduct.

[73] According to Intervening Causation Law In A Medical Context by

Professor Douglas Hodgson (Tagged as A3 page 395 and 396 of the

Respondent’s Bundle of Authorities) which stated that: “the question arises as to

whether the proper judicial approach should be one of intervening causation analysis

or the failure of the plaintiff to mitigate his or her damage. In relation to the latter, the

36
so-called common law doctrine of failure to mitigate is based on the notion that a

victim of negligence must take reasonable steps to minimise the loss suffered as a

result of that negligence, effectively providing the victim with an incentive to engage

in self-help.In the clinical negligence context, a plaintiff may unreasonably fail to

mitigate his or her loss by failing or refusing to seek timely medical treatment or

procedures to prevent the tortiously caused injury from getting worse and which

would have enabled him or her to return to work sooner, thereby reducing his or her

loss of income. If the plaintiff fails to take reasonable steps to reduce the effects of

the loss, and the medical treatment or procedures would have had a beneficial effect

prior to the trial, compensatory damages will be reduced from that date to

acknowledge the diminished injury the plaintiff would have sustained if treatment had

been sought and effectively provided.”

[74] The counsel wishes to refer Yang Arif to the case of Emeh V. Kensington

And Chelsea And Westminster Area Health Authority And Others [1979 E. No.

446] [1985] Q.B. 1012 in the Court of Appeal (Tagged as C18 page 302 of the

Respondent’s Bundle of Authorities) which is the landmark case in regards to the

doctrine of novus actus interveniens. In this case, the Plaintiff gave birth to a child

with congenital abnormalities despite the fact that she had purportedly been

sterilized by the Defendants and the Plaintiff sued for damages for the upkeep of

bringing up a handicapped child. The Defendant contended there was novus actus

interveniens on the part of the Plaintiff since she was the one who did not want to

abort the child. It was held by the Court of Appeal that :

“In my opinion, on the findings of the judge, even as they were, I would be disposed

to say that this conduct on the part of the plaintiff was not so unreasonable as to

eclipse the defendants’ wrongdoing. But when there is taken into account, first of all

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the judge’s misunderstanding of the earlier part of the plaintiff’s evidence concerning

dates, when she was in fact entirely truthful; and secondly when one sees no

reference was made by the judge to the difference between a 20-week pregnancy

and eight-week pregnancy, it would seem that when the plaintiff decided to have the

baby and, having made that decision, she then decided to sue the defendants, her

conduct could not be described as utterly unreasonable. Especially when one bears

in mind that she had an argument with her husband about it - he apparently wanted

her to have an abortion; and the judge accepted that evidence - that makes her

decision all the more understandable. I would therefore come to the conclusion that

that finding of the judge, namely her failure to undergo an abortion was so

unreasonable as to eclipse the defendants' wrongdoing, is incorrect, and that the

plea of novus actus, or the failure to take steps to minimise the damage - in whatever

way the matter is put - fails.”

[75] Distinguishing the precedent case with the current case, it can be submitted

that the conduct of the Appellant had indeed intervened between the Respondent’s

negligence and injury suffered by the Appellant. This is because the Appellant

suffered the injury not because of the Respondent’s conduct but it is due to the

Appellant’s own conduct for cancelling her appointment arranged by the Respondent

without informing any valid reasons. Moreover, the fact that the Appellant did not

take any action to treat the said lump for more than 4 months is also proof to say that

Appellant was the one who made her own condition worse. Based on the facts of the

case, there is no valid reason for the Appellant to not get her treatment immediately

thus the Appellant’s conduct of delaying her treatment was said to be unreasonable.

[76] Next, the counsel invite the Court attention to the case of Lai Ping Alias Lai

Wai Ping v Dr Lim Tye Ling & Ors [2014] MLJU 94 in the High Court of Kuala

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Lumpur (Tagged as C19 page 322 of the Respondent’s Bundle of Authorities). In

this case, the Plaintiff sued the 2nd Defendant for negligence in which the 2nd

Defendant had caused blindness to the eyes of the Plaintiff. However, the 2nd

Defendant relied on the defence of novus actus interveniens based on the treatment

given by Dr Seshan Lim to the Plaintiff at Tung Shing Hospital. It was held by the

Court of Kuala Lumpur that the 2nd Defendant could not rely on novus actus

interveniens because there was no credible evidence adduced to suggest that Dr

Seshan Lim was responsible for the Plaintiff's blindness. SM Komathy Suppiah JC

stated that:

“Reference was made to Clerk & Lindsell on Torts, 17th edition @ 2-24, 2- 26 on

the concept of novus actus interveniens. ‘This concept of novus actus interveniens

acts in this manner:If a particular consequence of the defendant's wrongdoing is

attributable to some independent act or event which supersedes the effect of the

initial tortious conduct, then the defendant's responsibilities may not extend to the

consequences of the supervening event. In short, if there is a break in the chain of

causation then the original wrongdoer is not liable for starting the wrong.’ It was

stressed by the 2nd Defendant that the Plaintiff’s left eye had perception of light at

the time when she first went to Tung Shin Hospital on 24.7.2006, and that hypotony

developed only after the procedures carried out by Dr Seshan Lim. As the Plaintiff

subsequently lost her vision in the left eye in June 2007, it was submitted that there

was a break in the chain of causation.”

[77] Distinguishing the precedent case with the current case, the Respondent can

rely on the doctrine of novus actus interveniens. This is because there is a break in

the chain of causation which make the Respondent not liable for negligence. In the

current case, the injury suffered by the Appellant was not due to the Respondent’s

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conduct of causing the declination of the insurance but it is due to the Appellant’s

own conduct of cancelling her appointment and did not get treatment in due time.

Moreover, the Respondent’s conduct to diagnose was only in preliminary stages thus

it is impossible for the Respondent to identify the exact condition of the Appellant

without doing any further test. This indicates the importance of undergoing the test in

which the Appellant herself cancelled the appointment without telling the Respondent

any valid reasons.

[78] Moreover, the counsel reaffirm the case that was used by the judge of the

High Court of Georgetown which is the case of Lian Meng Wah v Uma Parvathy

Thothathri [2012] MLJU 1688 in the High Court of Kuala Lumpur (Tagged as C20

page 328 of the Respondent’s Bundle of Authorities). The purpose of referring

this case to the current case is to highlight the unreasonableness of the Plaintiff

conduct and not to determine whether or not the Respondent had acted in

accordance with accepted medical practitioner. In this case, the Plaintiff sued the

Defendant who was his solicitor because of breach of duty to assist and attend the

Plaintiff to the management of his legal matters relating to the IDT. It was held by the

High Court of Kuala Lumpur that the appeal made by the plaintiff should be

dismissed and Dato’ Nik Hasmat Binti Nik Mohamad PK stated that:

“It is clear to the court that based on the conduct of the Plaintiff, the Plaintiff had

acted unreasonably in his immediate and urgent demand for the return of ‘the said

IDT’ from the Defendant. The Defendant had earlier requested the Plaintiff to collect

his documents including the IDT from the Defendant’s office which were kept for a

period of one year. The Plaintiff had however deliberately ignored, failed and

neglected to collect the IDT despite the repeated requests of the Defendant for the

collection of Plaintiff’s documents. The court therefore viewed Plaintiff’s sudden

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interest and urgent demand for the return of the misplaced IDT within the seven day

timeline and Plaintiff’s immediate commencement of this court proceeding within a

month period from the Defendant’s letter dated 22.6.2005 as unreasonable and

unjustifiable. It is clear that the Plaintiff as confirmed in court, had not informed the

Defendant of Plaintiff’s need for the IDT for the purpose of the sale and further, the

Plaintiff had hitherto clearly displayed an air of indifference to the importance of his

documents which had been kept into Defendant's custody on plaintiff’s own accord.”

[79] Applying the precedent case in the current case, it can be proven that the

Appellant’s conduct is said to be unreasonable. In this case, the Appellant had

indeed acted unreasonably in which she cancelled her appointment arranged by the

Respondent without any reasons and the Appellant delayed her treatment to cure

the cancer for a period more than 4 months when she was diagnosed with it. Even if

the Appellant contended that the Respondent supposedly took proactive measure

such as not contacting the Appellant, it is not necessary for the Respondent to take

such measures since she already acted in accordance with standard of care of the

medical practitioner based on the case of Bolam v Friem Hospital Management

Committee. It is unreasonable for a doctor to contact every each one of their

patients asking the reasons they cancelled their appointment since the choices is

given to the patients not to the doctor.

[80] Thus, the Respondent contended that the learned High Court judge was

correct in fact and in law in concluding that the Respondent was clearly not negligent

but it was the Appellant’s own conduct that caused her loss. This is supported by

several legal propositions established in several authorities.

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(3) THIRD MAIN ISSUE: WHETHER, AS A RESULT OF NON-BREACH BY THE

RESPONDENT OF HER DUTY OF CARE AND BREAK IN THE CHAIN OF

CAUSATION (IN CASE) THE COURT FIND THERE IS A BREACH, THE

APPELLANT IS NOT ENTITLED TO DAMAGES?

[81] Yang Arif, as far as the third main issue is concerned, it is submitted that the

Appellant is not entitled to damages on the basis there is no breach of duty done by

the Respondent and there was a break in the chain of causation due to the

Appellant’s own conduct. The purpose of awarding damages is to compensate the

victim who suffered injury due to the wrongdoer’s negligence. In our current case,

the damage suffered by the Appellant is not due to Respondent’s conduct but it is

due to the Appellant’s own conduct. We humbly seek the Honourable Court to not

award damages to the Appellant based on sympathy only as it is the Appellant’s fault

in the first place to cancel her appointment without giving any reasons to the

Respondent. The Appellant also failed to obtain treatment in due time since she was

the one who delayed the treatment for more than 4 months.

[82] The counsel invite the Court attention to the case of Inas Faiqah bt Mohd

Helmi (an infant suing through her father and next friend, Mohd Helmi bin

Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1 in the Federal Court

(Tagged as C21 page 340 of the Respondent’s Bundle of Authorities). It was

held by the Federal Court that: “It is trite that damages serve as compensation, not a

reward, less still a punishment (see Ong Ah Long v Dr S Underwood [1983] 2 MLJ

324). In assessing damages, the courts should not be motivated by sympathy and

award fair compensation based on cogent evidence. The court should not descend

into a domain of speculation. The evaluation of that evidence, which forms the basis

of any risk of future damage, must therefore still be undertaken. And the trial judge

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can only evaluate such evidence based on the recognised balance of probability

standard.”

[83] Applying the precedent case in the current case, the counsel humbly seek the

Court to not award damages to the Appellant based on sympathy. This is because

sympathy towards the Appellant was not sufficient for the Appellant to be entitled for

damages. The Appellant was also in such a sympathetic situation due to her own

conduct for cancelling the appointment arranged by the Respondent and failure to

obtain treatment in due time. If the Appellant had indeed received her treatment as

soon as possible, it is possible for the doctors to take actions to cure her cancer.

[84] Next, the counsel wishes to refer to the case of Yang Salbiah & Anor v Jamil

bin Harun [1981] 1 MLJ 292 in the Federal Court (Tagged as C22 page 352 of the

Respondent’s Bundle of Authorities). In this case, it was stated by Raja Azlan

Shah Cj (Malaya): “It must be remembered that the purpose of damages is to try, so

far as humanly possible, to put the victim back to the position he would have been in

but for the accident. The damages must be fair, adequate and not excessive. A

reasoned judgment must therefore be given by the judge, following legal principles

and precedents. Other awards in other cases should normally be prayed in aid, but

consideration must be given where the circumstances differ.”

[85] Applying the precedent case in the current case, the counsel submitted that

since the purpose of damages is to put the victim back to the position he would have

been in but for the accident, the Appellant is not entitled for damages. This is

because the Respondent did not act negligently towards the Appellant as there is no

breach of duty and there is a break in the chain of causation. Thus, the Appellant is

not entitled to claim for damages since there is no negligence in the first place.

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F. PRAYERS OF RELIEF

[86] Yang Arif, premised on our submission, the Respondent humbly pray to the

Court, to affirm the decision of the learned judge of High Court, and dismiss the

Appellant’s appeal on the following grounds and reason:

1. The Respondent’s conduct is in line with the standard of care of medical

practitioners as envisaged in the case of Bolam v Friem Hospital

Management Committee given that the Respondent had discharged her duty

by conducting a fresh physical examination of the Appellant after the

Appellant referred to the Respondent.

2. The injury suffered by the Appellant was not due to the Respondent’s conduct

but due to the declination of her insurance coverage and due to the

Appellant’s own conduct by cancelling the appointment arranged by the

Respondent for further test

3. As a result of non-breach by the Respondent of her duty of care and break in

the chain of causation (in case) the court find there is a breach, the Appellant

is not entitled to damages

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Dated this 29th Day of December 2023.

…………………………………………..

Solicitors on behalf of the Respondent

Zaaim & Partners (Advocate & Solicitors)

This Respondent Written Submission is filed by Zaaim & Partners (Advocate &

Solicitors), solicitors for the Respondent above named with an address for service at

30, Jalan Angsana 1, Taman Bukit Angsana Cheras, 56000, Cheras, Wilayah

Persekutuan Kuala Lumpur

Tel: 03-60282676 | E-mail: zaaimcolaws@gmail.com

Ref: P-02(W)-2-10/2023

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