Muhammad Aiman Bin Mohd Hisham v Kerajaan Malaysia & Ors

Appellant(s): Xxxx

Respondent(s):

• Kerajaan Malaysia
• Dr Cimmeran Kaur Sindhu A/p Jaggit Singh
• Dr Che Muzaini Che Muda
• Dr Maheran Binti Rodzali
• Dr Joy Peripooranam Poore
• Dr Haliza Binti Ghazali
• Dato' Dr Mohamed Rouse Bin A.majid
• Dr Najahah Binti Ahmad Tajudin
• Dr Moganadass A/l Arumugam
• Dr Chong Soon Eu
• Dr Tan Chyi Shyang
• Dr Mohd Rafeek Bin Mohd Ismail
• Dr Timothy Lee Chin Ren
• Dr Logandran Vijaya Kumar
• Dr Muzaimi Bin Mustapa
• Siti Sarah Jan Mohhamed
• Habibah Hashim
• Siti Aminah Ahmad
• Jamaliah Abd Karim
• Nalena a/p Muniapa
• Noraniza Roslaini
• Noor Hayati Abd Rashid
• Hadibah binti Ismail
• Jusnani Hashim
• Zainab binti Yunus
• Sharifah Fatimah Al Junid
• Senthil a/l Arumugam
• Kamala Felecia a/p Samuel
• Hazlinda Zainal
• Heng Yen Lin
• Parvinder Kaur
• Tan Chew Ean
• Sharifah Mashitah Syed Sheh
• Zaitol Salleh
• Gunawathy a/p Periasamy
• Wan Zuriati Wan Zakaria
• Suryati Abd Karim
• Norhizan Baharin

• YA Datuk Supang Lian
• YA Datuk Dr Shahnaz Binti Sulaiman
• YA Dato' Ahmad Shahrir B. Mohd Salleh

• The appellant, a child suing through his mother, sued the Government and numerous doctors and nurses for medical negligence in the management of his mother's obstetric care and his own neonatal care at a government hospital, alleging this caused his severe cerebral palsy and brain damage.
• The respondents' defence was that the brain injury pre-dated their involvement, having occurred antenatally between 24-32 weeks' gestation due to antepartum haemorrhage and intra-uterine growth restriction before the mother came under their care.
• The High Court dismissed the claim on liability and, having found against the appellant, did not go on to assess damages.

• Whether the trial judge erred by applying a standard of proof higher than the balance of probabilities (using language such as "conclusive, strict and affirmative" proof and a "high degree of probability") in a medical negligence case.
• Whether the trial judge erred in drawing an adverse inference under section 114(g) of the Evidence Act 1950 against the appellant for alleged non-disclosure of antenatal records, particularly where this issue was never pleaded, cross-examined on, or raised with the parties before judgment.
• Whether the evidence, including unchallenged admissions of the respondents' own witnesses and experts on breach of hospital protocols, contemporaneous medical records, and objective imaging, established negligence and causation on the material contribution test, and whether the trial judge was obliged to assess damages provisionally notwithstanding the dismissal on liability.

• The Court held that the trial judge fundamentally misdirected himself by applying a standard of proof exceeding the balance of probabilities, relying on an outdated Court of Appeal formulation from Whitehouse v Jordan that was not endorsed by the House of Lords, and this alone vitiated the findings on liability.
• The Court found the adverse inference against the appellant was wrongly drawn (as the relevant records had in fact been disclosed and the issue was never raised at trial, breaching natural justice), whereas an adverse inference ought instead to have been drawn against the respondents for their unexplained non-disclosure of two material culture and sensitivity test results.
• The Court held that unchallenged admissions of the respondents' own witnesses and experts (breach of the Kedah O&G Protocol on prophylactic antibiotics, sub-optimal Calcium Gluconate dosing, failure to conduct an EEG) and objective imaging evidence established that these breaches materially contributed to the appellant's brain injury; the appeal was allowed, liability reversed, and the matter remitted to the High Court before a different judge for assessment of damages, with costs of RM130,000 awarded to the appellant.