The plaintiff (the natural mother of a minor) filed a claim against the defendant, to undergo a DNA test to determine the paternity of the minor. The defendant had denied that he was the father of the minor and refused to undergo the DNA test. Having no specific statute to order DNA testing, the court referred to the United Nations Convention on the Rights of the Child (`CRC') and the Federal Constitution. The issues raised were, inter alia, (i) whether the DNA test should be ordered to resolve the issue of paternity in the absence of any specific statute; and (ii) whether it would constitute hurt if the defendant was compelled to give blood samples for the DNA test.

Held (allowing plaintiff's claim with costs):

(1) Having no specific provision of statute to order DNA testing, the court exercised its judicial discretion and gave regard to art. 3 of the CRC. It was in the best interest of the minor that the defendant be ordered to undergo DNA testing to determine the paternity of the minor. Once the status of the defendant was determined, the interest of the minor would be secured and protected directly and indirectly. (paras 12 & 34)

(2) The minor was entitled to equal protection pursuant to art. 8 of the Federal Constitution and therefore had a right to know the identity of his biological father. This could only be confirmed if the defendant was ordered to undergo a DNA test to confirm the same. (para 37)

(3) Pursuant to s. 319 of the Penal Code, an order for DNA should not be construed as `hurt' because the mens rea or objective behind the DNA test was to determine the paternity of the minor. (para 16)

(4) Article 7 of the CRC was very much in conformity with the Federal Constitution, national laws and national policies of the Government of Malaysia. Therefore, it should be invoked and rendered applicable. (para 41)

Case(s) referred to:

Lai Meng v. Toh Chew Lian [2012] 10 CLJ 479 (foll)

Lau Zhen Chen (An Infant by His Mother and Next Friend Lau Fatt Wan (f)) v. Makoto Togase & 2 Ors [1995] 1 CLJ 841 HC (refd)

Noorfadilla Ahmad Saikin v. Chayed Basirun & Ors [2012] 1 CLJ 769 HC (refd)

Peter James Binsted v. Jevencia Autor Partosa [2000] 2 CLJ 906 HC (dist)

Re L [1968] 1 All ER 20 (refd)

Legislation referred to:

Federal Constitution, art. 8(1), (2)

Penal Code, s. 319

Counsel:

For the plaintiff - T Tharumarajah; M/s T Tharumarajah & Assocs

For the defendant - Alan Lim Wei Lun; M/s Gan Teik Chee & Ho

Reported by Sandra Gabriel

This was a medical negligence suit by the plaintiff for damages against the defendants for causing the death of his wife (`the patient'). The first defendant (`Dr Badrul'), a colo rectal surgeon, was the doctor in charge of the patient. The second and third defendants were consultant anaesthetists and the fifth defendant was a medical officer who had assisted the second and third defendants while surgery was performed on the patient by Dr Badrul. The first, second, third and fifth defendants were employed by the fourth defendant at the Hospital Kuala Lumpur (`HKL'). The fourth defendant was sued for being vicariously liable for the negligence of the other defendants. The patient, aged 71, was initially admitted to the government hospital in Temerloh, Pahang, complaining of abdominal pain and vomiting. Since her condition did not improve after a week the plaintiff had her transferred to HKL to be under the care of Dr Badrul whom the plaintiff knew personally. For the two days following the patient's admission, Dr Badrul was away attending a conference but he instructed his surgical trainee (`Dr Leong') to, among other things, insert a Ryle's tube into the patient's stomach via her nose to pump out the build-up of stomach fluid caused by intestinal obstruction which was proved by a CT scan to be the patient's ailment. On the night his conference ended Dr Badrul decided the patient required urgent surgery the following day and he instructed Dr Leong to get the patient to sign the consent papers for surgery. Since he had been informed by his staff that the patient had refused to have the Ryle's tube inserted as it caused her discomfort and made her vomit, Dr Badrul requested the second defendant to attend to the insertion of the tube before performing surgery on the following morning. The second defendant was, however, unable to attend to the matter as she was called away to attend to another emergency case and she left the patient in the third defendant's care. On the morning before the surgery, Dr Badrul informed the patient of the immediate need for surgery. He also spoke to the plaintiff on the telephone about it and got his consent to proceed. Despite being strongly advised by the surgical team that she had to have the Ryle's tube inserted before anaesthesia was administered to prevent stomach contents from regurgitating and getting into her lungs, the patient adamantly refused the tube. The team finally decided to administer anaesthesia and insert the tube after she had passed out. However, while anaesthesia was being administered the patient regurgitated a large volume of stomach fluid which entered into her lungs causing respiratory failure that led to her death from aspiration pneumonia the following day. Inter alia, the plaintiff's case was that the relevant defendants: (i) failed to act in accordance with the standard of care expected of them by proceeding to administer anaesthesia without the Ryle's tube being in place despite being fully aware of the risks of doing so; and (ii) breached their duty of care owed to both the patient and the plaintiff by failing to explain to them before their consent was obtained, the risks associated with the surgery and anaesthesia particularly the risk of death due to aspiration of regurgitated stomach contents if the Ryle's tube was not inserted. The plaintiff contended that Dr Badrul, being the doctor in charge of the patient, should have himself attempted to insert the Ryle's tube instead of leaving that task to the nurses and his surgical trainee and that he should not have instructed Dr Leong to obtain the patient's consent to the surgery as there was no evidence that the trainee had properly advised her of the risks involved. The plaintiff also contended that Dr Badrul knew fully well that the plaintiff made the decisions with regards to the patient's medical treatment and therefore Dr Badrul should have informed him of her refusal to have the Ryle's tube inserted and the attendant risks involved so that he could have persuaded her to have the procedure done or even have called off the surgery. The defendants contended that they did their best to advise and persuade the patient to have the Ryle's tube inserted and when all attempts failed they took the precautionary measures of administering anaesthesia using the Rapid Sequence Induction (RSI) technique while a trained nurse applied cricoid pressure on the patient to prevent or arrest regurgitation.

Held (allowing claim with costs against first, third, fourth and fifth defendants and dismissing claim against second defendant):

(1) The failure to stop the regurgitation of the stomach fluid did not mean the third and fifth defendants were negligent in their care or that they had not provided the necessary and acceptable standard of professional care. Based on the expert medical testimony, regurgitation and aspiration could occur especially in cases of intestinal obstruction whether or not a Ryle's tube was inserted or cricoid pressure applied. (para 32)

(2) The medical experts agreed that while insertion of the Ryle's tube could mitigate against the risk of aspiration of stomach contents by removing some amount of it before surgery, the presence of a Ryle's tube was not mandatory prior to the induction of anaesthesia and its presence did not guarantee an empty stomach nor did it eliminate the risk of aspiration altogether. (paras 17 & 33)

(3) In the light of the evidence and current medical practice, non-insertion of the Ryle's tube prior to induction of anaesthesia was acceptable medical practice so long as the medical team was prepared for the eventuality of aspiration as was the case here. The third and fifth defendants had taken all necessary precaution and preparation to anticipate regurgitation. They had used the RSI technique for anesthesia while a trained anesthetic nurse applied cricoid pressure. (paras 36 & 31)

(4) The first, third and fifth defendants breached their duty of care to the patient in failing to inform and advise her adequately and sufficiently of the inherent and material risks - particularly of death due to aspiration - of proceeding with the surgery and anaesthesia without insertion of the Ryle's tube. The patient had consented to the surgery and anaesthesia without having appreciated the grave risks involved. (para 44)

(5) Even though the consent form did not require the plaintiff's consent to the surgery, the factual matrix of the case indicated that the first defendant had a duty to inform the plaintiff of the nature of the surgery and the inherent and material risks of the procedure especially in view of the patient's refusal to have the Ryle's tube inserted. It was clear from the evidence that the patient depended on the plaintiff to make the decision to proceed with immediate surgery. (para 46)

(6) There was insufficient evidence to establish negligence against the second defendant. She had a very limited role in the care of the patient and in the medical decisions that were taken. The plaintiff had proved negligence against the first, third and fifth defendants and, by virtue of that, the fourth defendant was vicariously liable for their negligence. (paras 47 & 49)

Case(s) referred to:

Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 (refd)

Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229 FC (refd)

Gurmit Kaur Jaswant Singh v. Tung Shin Hospital & Anor [2013] 1 CLJ 699 HC (foll)

Mathew Scott Oakley & Ors v. Dr George Varughese & Anor [2010] 10 CLJ 322 HC (refd)

Roe v. Minister of Health [1954] 2 QB 66 (refd)

Rogers v. Whitaker [1992] 175 CLR 479 (refd)

Wu Siew Yong v. Pulau Pinang Clinic Sdn Bhd & Anor [2011] 1 CLJ 255 HC (refd)

Whitaker [1992] 175 CLR 479 (refd)

Wu Siew Yong v. Pulau Pinang Clinic Sdn Bhd & Anor [2011] 1 CLJ 255 HC (refd)

Counsel:

For the plaintiff - Ambiga Sreenevasan (James Khong & Joanne Leong with her); M/s James Khong

For the defendants - Lee Boon Koon; FC

Reported by Ashok Kumar

Tuntutan plaintif berbangkit daripada kejadian di mana beliau terlanggar lubang di tengah jalan raya yang menyebabkan beliau gagal mengawal motorsikalnya lalu terjatuh ke atas jalan. Oleh itu, plaintif telah mengalami kecederaan. Hasil siasatan menunjukkan kewujudan lubang di atas jalan. Semasa memberi keterangan, saksi pihak defendan, iaitu juruteknik Jabatan Kerja Raya Kota Setar (`SD1'), telah menyatakan bahawa beliau merupakan ketua pasukan yang membuat pemantauan kerosakan jalan untuk dibuat pembaikan dan penyelenggaraan. Namun, SD1 tidak dapat mengesahkan sama ada lubang di tempat kejadian adalah lubang yang dibaiki oleh beliau. Dengan itu, adalah hujahan pihak defendan bahawa mereka diberi perlindungan di bawah
s. 7 Akta Prosiding Kerajaan 1956 (`Akta') di mana liabiliti kerajaan dalam hal penyelenggaraan jalan raya hanya dihadkan kepada jalan yang sedang diselenggara sahaja. Sebaliknya, pihak plaintif berhujah bahawa pihak defendan gagal untuk melaksanakan tanggungjawab kewajipan untuk melakukan kerja-kerja menyelenggara jalan di tempat kejadian.

Diputuskan (menolak tuntutan plaintif):

(1) Penyelenggaraan dan pembaikan jalan adalah termasuk di dalam tugasan awam pihak kerajaan seperti dinyatakan di dalam s. 7(2)(a) Akta. Namun, dengan merujuk kepada fakta kes di sini, tiada sebarang keterangan daripada pihak plaintif yang menyatakan bahawa terdapat kerja-kerja penyelenggaraan atau pembinaan sedang dilakukan di tempat tersebut semasa kemalangan berlaku. Perkara ini perlu dibuktikan pada peringkat kes plaintif. Bukanlah menjadi beban pihak defendan untuk membuktikan tiada sebarang kerja penyelenggaraan atau pembinaan sedang dijalankan di tempat tersebut. (perenggan 14)

(2) Seksyen 7(3) Akta tidak terpakai disebabkan kegagalan plaintif untuk membuktikan wujudnya kerja-kerja penyelenggaraan atau pembinaan di tempat kemalangan pada masa kejadian. Sebaliknya, s. 7(1) Akta adalah terpakai di dalam situasi sebegini. (perenggan 15)

(3) Sekiranya berlaku kemalangan akibat keadaan jalan raya yang tidak diselenggara dan mendatangkan kecederaan kepada pengguna jalan raya tersebut, maka prinsip "nonfeasance" terpakai. Prinsip ini terpakai apabila tidak ada kerja-kerja pembaikan atau penyelenggaraan jalan sedang dilakukan di tempat berlakunya kemalangan tersebut. Maka, tiada liabiliti dapat diletakkan terhadap kerajaan atau mana-mana badan kerajaan yang bertanggungjawab. Dengan itu, plaintif gagal membuktikan intipati s. 7(3) Akta dan ini memudaratkan tuntutan plaintif. (perenggan 17 & 18)

Kes-kes yang dirujuk:

Renugavathi Chinatamby lwn. Belati Wangsa (M) Sdn Bhd [2010] 6 CLJ 820 HC (dirujuk)

Swee Hong Investment Pte Ltd v. Swee Hong Exim Pte Ltd & Anor
(Kiaw Aik Hang Land Pte Ltd & Anor, Third Parties) and Another Appeal [1994] 3 SLR 320 (dirujuk)

Perundangan yang dirujuk:

Government Proceedings Act 1956, ss. 7(1), (2)(a), (3)

Kaunsel:

Bagi pihak plaintif - Salasiah Hamzah; T/n Vazeer, Akhbar, Majid & Co

Bagi pihak defendan - Masri Azizan; FC

Dilaporkan oleh Kumitha Abd Majid