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[2000] Part 3 Case 3 [HCM] |
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[2000] Part 3 Case 3 [HCM] |
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HIGH COURT OF MALAYA |
Romuloo Appalasamy
-
vs -
Tan
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Coram SULONG
MATJERAIE JC |
4
FEBRUARY 2000 |
Judgment
Sulong
Matjeraie JC
This
is an appeal against the decision of the learned Session Court Judge by the
appellant / defendant (appellant).
BACKGROUND
The
respondent / plaintiff, Tan Seng Kee (respondent) and another were involved
in a road accident on June 8, 1992. Injuries suffered by the respondent
include the following:-
Head
injury - with fracture of frontal bone of skull;
Injuries
and fracture of left leg that resulted in high knee amputation of left
leg with the fibula completely removed. Walks with prosthesis;
Comminuted
fracture and dislocation of left radius and wrist;
Severe
abdominal injuries with damaged intestines;
Scaring.
Consequent
to the accident the respondent was initially admitted to Hospital Sultanah
Aminah Johor Bahru and then transferred to the Johor Specialist Hospital
where he received treatment from June 8, 1992 to July 10, 1992. On July 10,
1992 the respondent was transferred to Mount Elizabeth Medical Centre,
Singapore and was receiving treatment until September 16, 1992 (for two
months seven days).
Expenses
incurred by the first respondent are as follows:-
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1. |
Medical expenses in Malaysia ........... |
RM |
70,168.00 |
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2. |
Medical expenses in Singapore (S$79,368.70) ......... |
RM |
138,895.22 |
Although
in the memorandum of appeal the appellant appeals against the medical
expenses incurred in both Malaysia and Singapore, at the hearing learned
counsel for the appellant notified this court that the appellant is only
challenging the medical expenses incurred in Singapore amounting to
S$79,368.70.
ARGUMENTS FOR THE APPELLANT
Learned
counsel M Nathan, for the appellant argued that the learned Session Court
Judge erred in concluding that the respondent should be fully compensated
for the medical expenses incurred in Singapore contrary to the evidence
available before the court as well as the authorities on this issue.
During an examination-in-chief on SD1, Dr Lee Thian Chai (SD1) (pp 77 and 78 appeal record) the witness, a graduate of University of London in 1982, Master of Medicine from University of Singapore 1986, MRCP London (1987), Fellow of Chest Physician USA and a member of Academy of Medicine Malaysia (1996) and a Fellow of Royal College of Edinburgh, Scotland (FRCES), said that Johor Specialist Hospital have adequate facilities to treat the respondent. Further SD1 said
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from my perspective we would be able to give the same treatment as Mount Elizabeth Hospital Singapore. |
All
major treatment, surgery and haemodialysis were done at Johor Specialist
(Hospital) said SD1. Although SD1 did not ask the respondent to seek
treatment at Mount Elizabeth Hospital he gave a reference letter so that the
first respondent can go to Singapore as it would not be right for him to
refuse giving such letter once a transfer is requested.
At p 80 of the appeal record SD1 said -
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we arranged (agreed) to their request in the interest of patient because of the proximate (sic) with Singapore. This is common phenomena with Johorean. We cannot stop them. |
It
is the contention of the appellant that the learned Session Court Judge
erred on the premise on which the decision was based. From pp 77 to 80 of
the appeal record, Johor Specialist Hospital has adequate facilities to
treat the respondent. Therefore the suggestion made by the learned Session
Court Judge that the respondent was sent to Singapore on the advice of Johor
Specialist Hospital is obviously incorrect, contends the appellant.
ABSENCE OF EVIDENCE OF GROSSLY INADEQUATE TREATMENT AND ATTENTION
At
p 17 of the additional appeal record, SD1 in his letter dated June 29, 1992
said that the respondent was admitted hypotensive with multiple injuries
under Dr Ahmad Khan (Consultant Neurosurgeon), Dr Zulrani Dato Shaari
(Consultant Orthopaedic Surgeon), Dr Ismail Abdullah (Consultant Surgeon
& Gastroenterolegist) and Dr Peter Tan (Consultant Anaesthesiologist).
The appellant is asking whether all the above-mentioned consultants have
given 'grossly inadequate treatment and attention'? He submits that this was
incorrect and there was no evidence to support this.
Further,
SD1 at p 77 of the appeal record confirmed that the Johor Specialist
Hospital have adequate facilities to treat the respondent.
To
support his argument, learned counsel for the appellant referred to the
following cases :-
Tang
Sia Bak v Mooi Kim Ming (Jan
89) BLD 85; (Supreme Court Civil Appeal No 249-87) Decision of the
Supreme Court. Only one third of the medical expenses incurred at the
private hospital was allowed. Their Lordships held that it was
unreasonable on the part of second respondent to discharge himself from
the general hospital where he was first admitted to seek similar
treatment at the private hospital.
Ng Aik Kian v Sia Loh Sia [1997] 2 AMR 1996, High Court, Johor Bahru. Here it was held at p 1998 line 40 that:
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In the absence of evidence to show that treatment in the government hospital was inadequate as compared to the private hospitals, the first plaintiff is entitled to one third of the sum incurred by him at the private hospital. |
Peraganathan Karpaya v Choong Yak Sang [1996] 1 CLJ 622, High Court lpoh, where it was held, inter alia, that:
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When the court is called upon to determine whether or not the expenses incurred in a private hospital should be allowed in such cases, it should not rely on medical advice solely as such, but whether in the circumstances of this case, the hospital concerned is ready and able to provide adequate facilities, expertise and treatment to the patient. In the instant case, it turned out that there was no necessity to have the plaintiff's leg amputated and the plaintiff had not produced any evidence to satisfy the court that the state of affairs existed in Teluk Intan District Hospital then to give rise to such apprehension. Therefore the claim of RM11,629.90 is reduced to RM4,000. |
Harcharan Singh Saudagar Singh v Hassan Ariffin [1990] 2 CLJ 393 High Court lpoh. Here it was held that:
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As for medical expenses, since the plaintiff had transferred himself from the General Hospital to a private hospital on his own accord, the award must be reduced and only two third of the amount claimed be allowed. |
Chong Chee Khong v Ng Yeow Hin [1997] 4 CLJ Supp 17, High Court Kuala Lumpur where it was decided at p 26 that:
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the reason the first plaintiff went the Tawakal Hospital where he expended a sum of RM15,429 was because the University Hospital did not attend to an injury to his right leg. Yet, he did not provided any report or letter from Tawakal Hospital to show that such was indeed the case. A mere assertion without documentary evidence must result in this court rejecting this claim totally. |
Tajuddin Sheikh Daud v Wong Kim Yin [1989] 2 CLJ 237 High Court, Ipoh where it was decided that:
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Because of the grossly inadequate attention and rather inadequate treatment, coupled with a great deal of apprehension as to the possible amputation of his right leg which Dr. Matthews had told him in General Hospital, the plaintiff was simply quite entitled to try to seek greater recovery from his injuries and reduced his residual disabilities by discharging himself from General Hospital and admitting himself to the Hospital Fatimah. |
In this case DW1, a medical officer (not a specialist surgeon) at that time had 250 orthopaedic patients to look after and he agreed that there was a shortage of doctors. He, and another medical officer (also not a specialist) performed the operation on the plaintiff in the General Hospital. Plaintiff's claim for $19,840.10 was allowed.
Chong Kam Siong v Herman Baharuddin [1995] 2 CLJ 413 High Court Johor where it was held that:
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Because of the proximity and the linkage to Singapore, any person who suffers injuries as a result of a road accident in the State of Johor is not unreasonable in seeking medical treatment in Singapore. The hospital in Singapore should be treated like any other private hospital in Malaysia and therefore if the patients has a choice to any private hospital in Malaysia, similarly he should be entitled to seek treatment at a hospital in Singapore. Based on the aforesaid the plaintiff's claim for medical expenses amounting to RM43,037 is allowed. |
Yeap Cheng Hock v Kajima-Taisei Joint Venture [1973] 1 MLJ 230 where Justice Syed Agil Barakbah (as his Lordship then was) said on the question of the air passage from Kuala Lumpur to London and back and expenses incurred there,
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the question is whether the trip to London was indeed necessary when it is known that there are adequate medical facilities in this country to deal with the matter. The plaintiff said he went to Roehampton on medical advice but no proof was available to substantiate it. In the absence of any medical evidence that local facilities are not available or, if available, are inferior to those in Roehampton, and if so whether the London trip was necessary, instead or ordering it for application here, I am not prepared to allow the plaintiffs claim on the two items. |
In
summary it is the contention of the appellant that the respondent has failed
to produce evidence that the Johor Specialist Hospital has no facilities and
expertise that made it necessary for the respondent to be transferred to
Mount Elizabeth Hospital Singapore. The contrary seems to be true. Further
there was no evidence adduced by the respondent to say that Johor Specialist
has no medical doctor that could treat the respondent. The appellant also
submitted that there was nothing to show that the respondent received
"grossly inadequate treatment and attention" in Johor Specialist
Hospital and that the decision to go to Mount Elizabeth Hospital Singapore
was at the instance of the respondent and not on the advice of medical
specialist from the Johor Specialist Hospital.
It
was also contended by the appellant that all the important treatments were
done in Johor Specialist Hospital and not in Singapore. As such only one
third of the total medical expenses incurred by the respondent be allowed.
The appellant therefore prays that the decision of the learned Session Court
Judge be set aside and only one-third of the total medical expenses in
Singapore be allowed.
ARGUMENTS OF THE RESPONDENT
Learned counsel for the respondent, Mr. T Balaskanda, (Encik Khutubul Zaman Bukhari with him) informed this court that initially the appellant, at a hearing on February 7, 1996 that the bills from Mount Elizabeth Hospital, Singapore amounting to S$84,063.70 be paid by them and this could be seen at p 59 of the appeal record. The conversion rate agreed was 1.75 and therefore in term of Malaysian Ringgit it would be RM147,100.95. This agreement was however withdrawn later.
There
is one issue, suggests learned counsel for the respondent, to be resolved,
that is to say, whether the amount of RM138,895.22 is reasonable to be
awarded to the respondent.
It
was suggested by the learned counsel that from the evidence of SD1 appearing
at pp 77 to 82 appeal record and additional appeal record, there appears to
have been discussions between doctors, consultants initiated by the family
of the respondent. The respondent was in the Johor Specialist Hospital for
32 days and at p 80 of the appeal record, SD1 said the respondent has not
regained consciousness after one month. Further the respondent was
quadriplegic and his condition remains critical.
After
discussing with the relatives of the respondent, it was in the opinion of
SD1 that it was in the best interest of the respondent that he be treated at
Mount Elizabeth Hospital, Singapore. Since the relative did not know the
doctor at Mount Elizabeth Hospital, SD1 and his colleagues recommended Dr
Akira Wu, whom SD1 knows will get the best team of consultants to treat the
respondent.
The letter from SD1 at p 16 of the additional appeal record confirmed at paragraph 2 therein in that the respondent was
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still critically ill and underwent numerous surgeries and developed acute renal failure as a complication of the accident and wound sepsis. |
Hence, after discussing with the relatives of the respondent and in view of the respondent's critical and complicated situation, a second opinion was sought. Dr Akira Wu was consulted and it was decided in the best interest of the patient that he be transferred to MEH (Mount Elizabeth Hospital) under Dr Akira Wu's, management.
Another important matter brought to the attention to this court by learned counsel was that the respondent was referred to Dr Akira Wu because
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we have confident (sic) in him and because we cannot treat patient with renal wound: see p 81 of the appeal record. |
Further,
the respondent was continuously sick.
The evidence of SD1 was supported by a letter at pp 17 and 18 of the additional appeal record, which stated inter alia, that the respondent
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was ventilated for 14 days but he went into acute renal shut down (details refer to enclosed investigation chart) on June 12, 1992. |
At
the end of his letter SD1 said the condition of the respondent "remains
critical".
It
was suggested by learned counsel that acute renal shut down means that the
kidney does not work and the patient can die despite daily dialysis done:
see also p 2 of the additional appeal record.
When
the respondent was examined on the day of admission on July 10, 1992 he was
conscious but aphasic: see p 8 of the additional appeal record. All the four
limbs were not moving.
The consultant resolved the renal failure as seen as paragraph 5 of p 9 of the additional appeal record which says
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Four session of hemodialysis using the subdavian dialysis catheter were required before his acute non-oliguric renal failure resolved. |
At
the time of discharge from the hospital on September 16, 1992 the respondent
remained non-ambulant. It therefore suggests that the respondent's action
was reasonable.
The
attention of this court was also drawn to p 13 of the additional appeal
record where a letter from Raj Orthopaedic Surgery says the respondent was
"fortunate to have survived to his present level disabilities." It
was only after spending 32 days in Johor that the respondent went to
Singapore. It was therefore submitted that the facts in this instant case
are different from the facts of the authorities offered by learned counsel
for the appellant.
Learned
counsel for the respondent quoted the article of Mr. S Gunasegaran that
appeared in [1998] 2 MLJ xxv at p xxvii where the author said in the case of
Tang Sia Bak v Mooi Kim Ming (Supreme Court Civil Appeal
No. 249-87) the trial Judge's award of RM5,576.30 was reduced to RM1,500.
Unfortunately, as the Supreme Court did not give a written judgment in this
case, we are at a loss to understand why the award was so reduced. In
Mooi Kim Ming v Tang Sia Bak [1988] 2 CLJ 797 the plaintiff
discharged himself to get better treatment at another hospital, the trial
Judge ruled that the plaintiff was entitled to claim for the expenses
thereby incurred. At the Supreme Court the appeal against liability was
dismissed but the appeal against quantum was allowed and varied. The other
cases offered as authorities by learned counsel for the respondent were Yaakub
Foong v Lai Mun Keong [1986] 2 MLJ 317 and Tajuddin Sheikh
Daud v Wong Kim Yin (supra) and these were noted by this court.
Another
case brought to the attention of this Court was Chong Kam Siong v Heraman
Baharuddin [1995] 2 CLJ 413. In the said case, the learned James Foong
Cheng Yuen J, held, inter alia, that any ordinary citizen has
a right to choose medical treatment for his injuries and illness from
whoever and from wherever and because of the proximity and the linkage to
Singapore it is not unreasonable for any injured person from the State of
Johor to seek medical treatment in Singapore. The case of Lew That v Chai
Yee Chong [1997] 2 AMR 1316 was also quoted before this court.
It
was suggested by learned counsel that there are two tests as follows:-
Reasonable
test; and
Freedom
of choice.
It
was submitted that on reasonableness, the action of the respondent's wife
and that of his family was reasonable. Anyone, suggested learned counsel, in
that position would have taken the patient to Singapore. As a comparison the
total number of days the respondent spent at Specialist Hospital Johor was
32 days and the total amount that must be paid was RM70,168 and on the
average the daily expenses was RM2,192.75. The respondent was at Mount
Elizabeth was for 67 days and the total expenses incurred was an amount
equivalent to RM138,895.22 and the average daily expenses was only
RM2,073.06. Therefore the cost incurred per day at Singapore is lower than
that incurred in Johor. This argument is difficult to accept as the cost of
medicine and other variable factors may not be the same in the two places
despite their proximity.
Learned counsel then tried to distinguish the various cases of Ng Aik Kian v Sia Loh Sia (supra), Appalasamy Bodoyah v Lee Mon Seng [1996] 3 CLJ 71, Harcharan Singh Saudagar Singh v Hassan Ariffin (supra) and Chong Chee Khong v Ng Yeow Hin (supra) with this instant case. The learned RK Nathan JC (as he was then) said in Chong Chee Khong that the reason why the plaintiff went to the Tawakal Hospital was because the University Hospital did not attend to his injury, yet no report or letter from Tawakal Hospital to show that such was the case and as such
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a mere assertion without documentary evidence must result in this court rejecting this claim totally. [p 26-d] |
The
decision of the Supreme Court in Pengarah Institut Penyelidikan Perubatan v Inthra Devi
[1988] 1 MLJ 19 was quoted by
learned counsel and this was accordingly noted by this court.
It
is therefore the submission of the respondent that there are ample medical
evidence to show that the respondent must go to Singapore. The doctor said
they cannot treat him and as such the entire sum of RM138,895.22 be allowed
as the sum was genuinely expended by him and therefore the respondent is
entitled to it.
In his reply to the submission made by learned counsel for the respondent, Mr. M Nathan drew the attention of this court to the fact that the decision for the respondent to go to Singapore was, after some discussion, initiated by the relative of the respondent. SD1, the witness for the appellant, said during cross-examination that, the respondent was unconscious after one month; see p 80 of the appeal record. However, upon admission to Mount Elizabeth Hospital, the respondent was "conscious but aphasic" (p 8 of the additional appeal record). Therefore there was some measure of recovery, submits learned counsel. It was further submitted that the report made by Dr Akira Wu (Nephrolegist and Physician) at p 9 of the additional appeal record which says;
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Four sessions of haemodialysis using the subclavian dialysis catheter were required before his acute non-oliguric renal failure resolved |
should
be taken together with the rest of the evidence where it was stated that
"we cannot treat patient with renal wound" at p 81-D of the appeal
record. This court could not accede to the request by learned counsel to
have the part ("we cannot treat patient with renal wound") of the
evidence be struck off for being inconsistent with the rest of the evidence,
as the record of evidence should stay as this court has no power to change
it. Further SD1 was the witness of the appellant and he was the medical
officer who treated the respondent.
This
court also considered the submission of learned counsel for the appellant
that in the case of Tajuddin Sheikh Daud v Wong Kim KM [1989] 2 CLJ
237 where there was a great deal of fear and apprehension as to the possible
amputation of his right leg. Further the crucial issue was the question of
grossly inadequate attention and rather inadequate treatment. Learned
counsel suggested that while the case of Appalasamy Bodoyah v Lee Mon
Seng was not relevant, the case of Chong Kam Siong v Herman
Baharuddin should not be followed. He urged that this court should only
follow the award of one-third of the expenses incurred in Singapore. This
was the amount that the appellant was prepared to pay.
FACTS FOUND IN THE APPEAL RECORD AND THE ADDITIONAL APPEAL RECORD
The report made by Dr Lee Thian Chai, Consultant Physician with the Johor Specialist Hospital (SD1) on the respondent dated June 29, 1992 stated that the respondent was admitted on June 8, 1992 following a collision between two lorries and upon admission he was hypotensive with multiple injuries. The respondent was ventilated for 14 days but he went into acute renal shutdown on June 12, 1992. Acute haemodialysis via femoral catheter was commenced. However over the next 17 days the respondent required almost daily dialysis because of acidosis and uraemia. 25 units of blood transfused and four units FFB given. The respondent was
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prescribed almost daily dialysis to get rid of uraemia and acidosis. His condition remains critical. [p 18 of the additional appeal record] |
The letter from Dr Lee Thian Chai (SD1) to Dr Akira Wu, the Consultant Nephrologist of Mount Elizabeth Hospital, Singapore on July 10, 1992 showed in no uncertain term the condition of the respondent on the date of the transfer. The letter stated that
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this patient has acute renal failure, abdominal wound sepsis, flaccid quadriplegia, (L) below knee amputation and fracture (L) forearm. |
The
letter at p 18 of the additional appeal record said: "His (the
respondent) condition remains critical." The letter at p 16 confirmed
it when SD1 said that the respondent was still critically ill and underwent
numerous surgeries and developed acute renal failure as a complication of
the accident and wound sepsis.
On admission to Mount Elizabeth Hospital Singapore, Dr Akira Wu examined the respondent and in his medical report on the respondent dated November 25, 1992 he said:
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when I examined him on the day of admission, he was conscious but aphasic ... Flaccidity was noted in all limbs. His immediate problem then were acute renal failure, infected abdominal wound and exclusion of cervical cord lesion. [p 8 of the additional appeal record] |
In
his evidence before the Session Court, SD1 said the respondent was admitted
on June 8, 1992 until July 10, 1992. He said further, that after one month
the respondent did not regain his consciousness (p 80 of the appeal record).
It was also recorded at p 79 of the appeal record that it was within the
knowledge of SD1 that there was a specialist Nephrologist at the General
Hospital in the person of Dr Hooi Lai Seong but at p 81 of the appeal record
SD1 said that the respondent was not sent to the said Nephrologist because
the General Hospital "did not have machine."
Further,
and more importantly SD1 at p 81 of the appeal record stated that "we
cannot treat patient with renal wound".
THE LAW
Mr. S Gunasegaran wrote an enlightening article entitled "Claiming medical expenses incurred in private hospitals in personal injury litigation" and this appeared in The Malayan Law Journal [1998] 2 MLJ xxv. He suggested that the case law on this subject shows the existence of two schools of thought. The learned James Foong J opined that:
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any ordinary citizen of this country has a right to choose medical treatment for his injuries and illness from whoever and from wherever. The only limitation to this freedom are economic and availability factors |
and
as such expenses should be allowed (see Chong Kam Siong v Herman
Baharuddin (supra). The decisions in Tajuddin Sheikh Daud v
Wong Kim Yin (supra) and Ng Aik Kian v Sia Loh Sia (supra)
suggest that such expenses are recoverable in full only if the plaintiff can
satisfy the court that it was reasonable for him to seek treatment in the
private hospital. Lack of proper care and attention in the government
hospital where the plaintiff was admitted and the availability of better
facilities and expertise in the private hospital may constitute reasonable
grounds for seeking treatment in the private sector.
On
the issue as to whether the respondent could be treated in a hospital in
Singapore, the learned James Foong J observed in Chong Kam Siong v Herman
Baharuddin (supra) that the problem was unique to the state of
Johor because of its proximity and linkage to Singapore and his Lordship
made a finding that it is not unreasonable for any person who suffers
injuries as a result of a road accident in Johor in seeking medical
treatment in Singapore. His Lordship said further that the hospitals in
Singapore should be treated like any private hospitals in Malaysia and
therefore if a patient has a choice to go to any other private hospitals in
Malaysia, similarly he should be entitled to seek treatment at a hospital in
Singapore [1995] 2 MLJ at p 418-d.
Haidar J (as he was then ) had earlier on adopted a liberal approach regarding the costs of medical treatment in Singapore in an unreported case (JBHC CS No 23-151-1993) between Chin Lin Soon v Mat Daud Mat Zain when his Lordship said:
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... Mengenai kos perubatan di Singapura pula saya berpendapat bahawa SP1 berhak mendapat rawatan yang sebaik-baiknya bagi kecederaan yang dialami oleh beliau dan memandangkan bahawa Singapura adalah berdekatan dengan Johor, saya berpendapat kos perubatannya di Singapura boleh dituntut oleh SP1. Tuntutan yang dibuat itu adalah munasabah dan disokong oleh dokumen-dokumen (lihat P2A). Dengan demikian saya awardkan S$38,974.95 sebagai kos perubatan di Singapura. [Translation:[a] ... Regarding the medical costs incurred in Singapore I am of the opinion that SP1 is entitled to receive the best treatment for the injury he suffered and considering that Singapore is close to Johor, I am of the view that SP1 can claim the medical costs he incurred in Singapore. The claim is reasonable and supported by documents (see P2A). Therefore I award S$38,974.95 as his medical costs in Singapore.] |
It
appears that his Lordship felt that it is within the right of an injured
person to seek the best treatment for injuries suffered and because of its
proximity to Johor, medical expenses, incurred in Singapore may reasonably
be claimed when it is supported by documents.
In this instant case, the respondent was hypotensive with multiple injuries upon admission on June 8, 1992. He then went into acute renal shut down on June 12, 1992. When he left Johor Specialist Hospital for Singapore his condition remains critical as he had acute renal failure, abdominal wound sepsis, flaccid quadriplegia, (L) below knee amputation and fracture (L) forearm. It has to be noted that although the respondent have spent 32 days in Johor Specialist Hospital his condition was still critical. When the respondent was admitted to the Mount Elizabeth Hospital in Singapore he was examined and the examining consultant said that although the respondent was conscious he was aphasic and his immediate problem then were acute renal failure and infected abdominal wound and exclusion of cervical cord lesion.
Although
there was a gazetted Nephrologist at the General Hospital Johor, the
respondent was not sent there as the General Hospital "did not have
machines". Furthermore the Johor Specialist Hospital cannot treat
patient with renal wound. In the circumstances it is only reasonable that
the respondent be sent to Mount Elizabeth Hospital, Singapore where there
was a Consultant Nephrologist who is known to SD1 and whom SD1 has
confidence in. Further as SD1 knew him, the said consultant would, in the
opinion of SD1, get the best team of consultants to treat the respondent.
Another
important factor that needs to be highlighted is the fact that the
respondent did not stay at Mount Elizabeth Hospital for any longer period
than necessary. The respondent remained non-ambulant at the time of
discharge from the hospital on September 16, 1992. This court views this as
another act of reasonableness on the part of the respondent.
This
court must look at the facts and circumstances of this case. There are
documentary proofs, as shown earlier, that the respondent was critically
ill. Having spent 32 days at the Johor Specialist Hospital and the
respondent was, among others still aphasic and has acute renal failure,
quadriplegic and with his left leg (below the knee) being amputated and
staying at a place where they cannot treat a patient with renal wound, would
it not be reasonable for him to look for a better place to seek for
treatment? The respondent was fighting for his dear life! Is it not the
fundamental right of the respondent not to be deprived of his life? The
respondent was quite entitled to seek for recovery for his injuries and
should therefore be allowed to secure better treatment elsewhere. This is a
basic constitutional right of every citizen of this country.
Applying
the authorities herein before provided by the judgments of the learned James
Foong J in Chong Kam Siong v Herman Baharuddin and the unreported
case of Chin Lin Soon v Mat Daud Mat Zain (JBHC CS No
23-151-1993) as decided by Haidar, J (as he was then), which with respect
this court prefers to follow, the respondent should be given the opportunity
to get the best medical treatment available. This is his basic right and
because of the proximity of Singapore to Johor it is therefor not
unreasonable for the respondent to go to Mount Elizabeth Singapore to seek
treatment. He has produced the necessary invoices for the expenses incurred,
which again are also not unreasonable and such should be fully paid by the
appellant.
Even
applying solely the principle of reasonableness on the claim of medical
expenses incurred in private hospital, this court is of the view that as the
Johor Specialist Hospital cannot treat patient with renal wound and although
the General Hospital may have a gazetted Nephrolegist but as it did not have
the necessary machine, it is only reasonable for the respondent to go to
Mount Elizabeth Hospital Singapore, where they have the necessary expertise
and facilities. Further, the fact that the respondent was unconscious for
more than 30 days at the Johor Specialist Hospital and for the other reasons
outlined above it is only reasonable that he be allowed to go to Mount
Elizabeth Hospital, Singapore.
In
the circumstances it is the finding of this court that the respondent is
entitled to the full claim of RM138,895.22 for the medical expenses incurred
in Singapore and as such this appeal is dismissed with costs.
Cases
Chin Lin Soon v Mat Daud Mat Zain JBHC CS No. 23-151-1993
(unreported);
Chong Kam Siong v Herman Baharuddin [1995] 2 CLJ 413;
Authors
and other
references
S
Gunasegaran, Claiming medical expenses incurred in private hospitals in
personal injury litigation, [1998] 2 MLJ xxv
Representation
Nathan
Maharajah (L Pereira & Associates) for Respondent
Balaskanda (Zaman & Associates) for Appellant
Notes:
This decision is also reported at [2000] 2 AMR 1601
[a]Translation into English texts is not a part of the original judgment.
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