Jahn Kassim, Puteri Nemie and Rosli, Muhammad Noor Firdaus (2026) Awarding aggravated damages in medical negligence cases: harmonising the aggravating circumstances. In: The 9th International Conference on Law and Society - Navigating Justice in the AI-Driven Society Through Harmonisation of Laws, 22 - 24 September 2026, Kuala Lumpur.
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Abstract
Aggravated Damages have been classified as a species of compensatory damages, which are awarded as an additional compensation where there has been injury to the plaintiff’s dignity, self-respect, or emotional well-being. The trend of awarding Aggravated Damages in High court decisions involving medical negligence cases has become common since the Federal Court judgment in Dr Hari Krishnan v Megat Noor Ishak [2018] 3 MLJ 28. However, throughout the judicial decisions since 2018, the aggravating circumstances that permit such award to be given in medical negligence cases have not just been confined to circumstances affecting distress, anguish, misery and hurt to the feelings of the plaintiff but has also include “motives and conduct of the defendant where they aggravate the injury done to the plaintiff” as well as “the way the litigation and trial are conducted”. This has led to the award of aggravated damages to be confused at times with Exemplary Damages which characteristics are not compensatory but punitive in nature. Therefore, there is a need to clarify and harmonise the aggravating circumstances that permit the court to award Aggravated Damages in medical negligence cases in Malaysia. These pertinent issues have also been highlighted in the recent Court of Appeal case of Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma a/l Karam Chand & Anor and another appeal [2026] 1 MLJ 172. By employing one of the qualitative research methods namely, Doctrinal Analysis, this paper will (i) discuss the development of the nature and prevalence of aggravating circumstances that have led to the award of Aggravated Damages in medical negligence cases in Malaysia since 2018; (ii) analyse the existence of confusion with the characteristics of Exemplary Damages and (iii) propose the need to clarify and harmonise the prevalent aggravating circumstances to ensure that the objectives and characteristics of Aggravated Damages are preserved and remain as compensatory in nature.
| Item Type: | Proceeding Paper (Other) |
|---|---|
| Uncontrolled Keywords: | Monetary Compensation; Tort Law, Aggravated Damages, Exemplary Damages, Medical Negligence |
| Subjects: | K Law > K Law (General) |
| Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button): | Ahmad Ibrahim Kulliyyah of Laws |
| Depositing User: | Professor Dr Puteri Nemie Jahn Kassim |
| Date Deposited: | 06 Oct 2026 16:00 |
| Last Update: | 06 Oct 2026 16:00 |
| Queue Number: | 2026-10-Q5461 |
| URI: | http://irep.iium.edu.my/id/eprint/131574 |
| Indexed In: | UNSPECIFIED |
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