AB (Seorang kanak - kanak yang membawa tindakan ini melalui wakil litigasinya SUHAIMAY BIN ISMAIL) v 1. ) Ilham Fitri Bin Murad 2. ) Nazali Bin Malik 3. ) Dr Asri Bin Abdul Aziz 4. ) Poliklinik Ihsan

ka-23ncvc-1-01-2023 High Court (Mahkamah Tinggi) 25 April 2026 • KA-23NCvC-1-01/2023 • 35 min read
16 cases cited (0 SG, 16 foreign)

Catchwords

TORT: Negligence — Medical negligence — Clinical negligence — Ritual circumcision — Procedure performed by qualified Medical Assistants (1st and 2nd Defendants) — Post-operative development of fibrous layer over glans penis — Submission of no case to answer by Defendants at close of Plaintiff's case — First and second limbs of no case to answer — Standard of care and clinical causation in diagnosis and treatment — Whether independent expert medical evidence is mandatory to define standard of care and prove breach — Application of Bolam test and Bolitho logical qualification — Doctrine of res ipsa loquitur — Whether applicable to complex clinical surgical procedures — Presumption of environmental and systemic negligence refuted by undisputed successful surgical outcomes of two cousins undergoing same procedure simultaneously with same instruments and facilities — Physical clinical credentials and competency of practitioners — Failure of Plaintiff to call any medical expert witness — Whether Plaintiff established a prima facie case of negligence — Dismissal of action in limine EVIDENCE: Burden of proof — Standard of proof — Civil trial — Submission of no case to answer — Defendants electing not to call evidence — Effect of election on burden of proof — Whether truth of Plaintiff’s evidence presumed under the Jaafar Shaari rule — Whether Plaintiff absolved from discharging legal burden of proof on a balance of probabilities — Adverse inference — Section 114(g) of the Evidence Act 1950 — Plaintiff's failure to produce an independent medical expert to testify on clinical standard of care and causation — Whether adverse inference arises against Plaintiff — Attempt by Plaintiff to invoke adverse inference against Defendants for non-production of written consent forms — Whether Defendants under a legal obligation to adduce evidence to rebut unpleaded allegations — Fact admitted — Section 58(1) of the Evidence Act 1950 — Signed Statement of Agreed Facts (Enclosure 13) — Binding effect of formal admissions on agreed post-procedural clinic visit dates and referral timeline — Expert opinion — Section 45 of the Evidence Act 1950 — Submissions and opinions of counsel — Whether layperson testimony or legal submissions of counsel can substitute for expert medical evidence on technical clinical matters CIVIL PROCEDURE: Pleadings — Statement of Claim — Parties bound by pleadings — Attempt by Plaintiff to raise unpleaded issues during submissions — Alleged lack of departmental leave and administrative authorisation under Regulation 5 of the General Orders (Public Officers) — Alleged lack of professional indemnity insurance — Alleged lack of informed consent — Whether administrative compliance shares a clinical nexus with clinical negligence [255–257] — Whether unpleaded regulatory issues constitute impermissible afterthoughts — Role of trial court in adversarial system — Strict confinement to issues raised on the record — Issues to be tried — Enclosure 14 — Complete omission of informed consent or lack of written consent from agreed Issues to be Tried — Whether Plaintiff procedurally barred from raising unpleaded issues DAMAGES: Personal injury — Special damages — Claim of RM35,000 for future aesthetic and reconstructive surgery — Admissibility of clinical quotation — Failure to call the clinical author of the quotation — Whether the contents of a document are proved merely by marking it as an exhibit — General damages — Claims for permanent anatomical deformity, scarring, and urinary obstruction — Rebuttal of claims by contemporary medical records from Hospital Sultanah Bahiyah documenting a completely healed wound and normal voiding — Aggravated damages — Belated unpleaded claim for aggravated damages — Whether separate awards for aggravated damages are permissible in personal injury negligence claims

Judges (1)

John Lee Kien How @ Mohammad Johan Lee Delivered

Counsel (4)

Brijnandan Singh Bhar & Co. Firm Omayah Nawal & Partners Firm Brijnandan Singh Bhar A/L Gurcharan Singh Counsel Plaintiff Muhamad Aiman Bin Mohd Nahzeri Counsel Defendant

Parties (4)

Dr Asri bin Abdul Aziz Defendant Ilham Fitri bin Murad Defendant Nazali bin Malik Defendant Poliklinik Ihsan Defendant

Statutes Cited

Evidence Act 1950 (Cap 56)
s 45 s 58 s 58(1)

Cases Cited (16)

UK (1)
[2004] EWCA Civ 1127
MY (15)
[1974] 1 MLJ 157 [1991] 1 CLJ 667 [2001] 4 CLJ 380 [2007] 1 CLJ 611 [2013] 1 CLJ 699 [2014] 9 CLJ 861 [2015] 3 MLJ 609 [2015] 6 MLJ 1 [2015] 8 CLJ 944 [2017] 5 CLJ 335 [2017] 5 MLJ 438 [2019] 4 CLJ 281 [2024] 4 CLJ 173 [2025] 1 MLJ 192 [2025] 5 CLJ 853

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (ka-23ncvc-1-01-2023)