TORT LAW- NEGLIGENCE- MEDICAL NEGLIGENCE

Legal Updates from YHA Law Firm

Madam Lim is nine months pregnant and was admitted to the hospital to deliver her baby. She had consulted Dr. Alice regarding the method of delivery, and the doctor advised her to give birth naturally after viewing the report presented by Madam Lim. Unfortunately, Madam Lim had suffered a perineum injury while her baby had suffered a shoulder injury during the delivery due to the mistake in her report. There are other doctors who are obstetricians supporting Dr. Alice’s suggestion given to Madam Lim. Can Madam Lim sue Dr. Alice on the basis that she had negligently given treatment and advice?

Q: What can Madam Lim do to sue Dr. Alice for negligent treatment and advice?

A: There are three elements that she needs to establish to hold Dr. Alice liable for acting negligently.

Alice has a duty of care towards Madam Lim (Duty of care).
Alice has breached her duty of care towards Madam Lim (Breach of duty of care).
Such a breach has caused harm to Madam Lim (Causation).

Q: Does Dr. Alice owe duty of care to Madam Lim (her patient)?

A: Yes. A doctor is a professional who possesses professional skills thus Dr. Alice owes a duty of care to Madam Lim to act carefully and logically when she is treating her. Her conduct will be judged according to a person having the same skills as she is.

Q: If a doctor disagrees with Dr. Alice’s conduct, does it mean that she had breached her duty of care?

A: A doctor will not be considered to have failed to act reasonably merely because she has acted differently from her board of professionals. She will not fail to act with reasonable care if she can provide logical reasonings for her conduct.

Q: After establishing a duty of care and breach of duty of care, what is the next step?

A: Madam Lim must then prove that Dr. Alice has failed to act properly that caused her the harm (the “but-for” test), that is if Dr. Alice has not acted negligently, she would not have suffered the said harm.

Q: In the scenario given above, are there any chances that Madam Lim will win this suit?

A: If Dr. Alice has advised giving birth naturally after relying on the report presented to her by Madam Lim, then she is not to be blamed for the injuries. There is evidence from other doctors to say that they would do the same if they were consulted by Madam Lim. Dr. Alice has not acted negligently, Madam Lim could not sue her.

EMPLOYMENT – RETRENCHMENT – INDUSTRIAL COURT UPHOLDS GLOBAL RESTRUCTURING: REDUNDANCY VALID DESPITE ONGOING WORK OVERSEAS

In Sin Leong v BT Systems (M) Sdn Bhd [2025] 4 ILJ 221, the Industrial Court upheld the employer’s retrenchment exercise following a global restructuring, ruling that the claimant was lawfully dismissed due to genuine redundancy. Although the claimant’s functions continued in India, the Court held that the abolition of the entire Malaysian team sufficed to establish redundancy. The company’s profitability did not negate the restructuring, and the LIFO principle did not apply since the whole department was closed. The decision reinforces that courts will respect managerial prerogative, provided the retrenchment is bona fide and not tainted by mala fide or victimisation.

30 March ,2026 尚無留言

DECREE NISI – ADULTERY AND FRAUD – NOT CONCEAL REMARRIAGE – COLLUSION EVIDENCE

In Kanagasingam a/l Kandiah v Shireen a/p Chelliah Thiruchelvam & Anor [2026] 7 MLJ 494, the High Court set aside spousal maintenance and committal orders after finding that the ex-wife had fraudulently concealed her remarriage, which by law extinguished her entitlement under section 82 of the Law Reform (Marriage and Divorce) Act 1976. The Court held that consent orders obtained through non-disclosure were vitiated by fraud and ordered repayment of RM310,000, together with RM400,000 in aggravated damages and RM300,000 in exemplary damages. The decision underscores that fraud unravels all, even in family proceedings, and that courts will not hesitate to impose punitive consequences for abuse of process.

30 March ,2026 尚無留言

FEDERAL COURT SAVES SECTION 233 CMA: ‘OFFENSIVE’ AND ‘ANNOY’ REMAIN CONSTITUTIONAL

In The Government of Malaysia v Heidy Quah Gaik Li [2026] MLJU 384, the Federal Court overturned the Court of Appeal’s ruling that had struck out the words “offensive” and “annoy” from section 233(1)(a) of the Communications and Multimedia Act 1998. The Court held that these terms, when read together with the requirement of intent to annoy, fall within the permissible restrictions on free speech under Article 10(2)(a) of the Federal Constitution. While the impugned words were upheld as constitutional, the respondent’s acquittal was maintained as her Facebook posts criticising immigration detention conditions did not demonstrate the required intent to annoy or harass.

30 March ,2026 尚無留言

HIGH COURT ORDERS TIKTOK VIDEO TAKEN DOWN: ADVICE ON SECRET CONVERSION OF MINORS VIOLATES CONSTITUTION

In Karnan a/l Rajanthiran & Ors v Firdaus Wong Wai Hung [2025] 9 MLJ 14, the High Court granted a mandatory interim injunction ordering the immediate removal of a viral TikTok video advising how underaged non-Muslim children could be secretly converted to Islam without their parents’ knowledge. The Court held that the advice prima facie breached Article 12(4) of the Federal Constitution, which provides that a minor’s religion must be determined by their parent or guardian. Given the risk of irreparable harm to constitutional rights, the Court found the case “unusually strong and clear” and concluded that justice and the balance of convenience favoured the urgent removal of the video pending trial.

30 March ,2026 尚無留言

MARITIME LAW – CLAUSES 28 AND 29 BARECON 2001 – OWNERS CAN’T PICK ANY PORT: COURT LIMITS ‘CONVENIENCE’ IN VESSEL REPOSSESSION CLAUSE

In Songa Product and Chemical Tankers III AS v Kairos Shipping II LLC [2026] 1 Lloyd’s Rep 100, the Court of Appeal held that a clause allowing owners to repossess a vessel at a location “convenient to them” does not entitle them to demand redelivery at any distant port of their choosing. The Court emphasised that repossession must occur as soon as reasonably practicable, and where the vessel is already at a safe and accessible port, owners cannot require charterers to incur the cost and risk of sailing it across the world. The decision clarifies that charterers, as gratuitous bailees post-termination, are only obliged to preserve the vessel – not to undertake burdensome repositioning for the owners’ convenience.

30 March ,2026 尚無留言

MARINE INSURANCE – FRAUD DOESN’T DEFEAT COVER: COURT UPHOLDS MORTGAGEE’S CLAIM UNDER MII POLICY OF MORTGAGEE’S CLAIM

In Oceanus Capital Sarl v Lloyd’s Insurance Co SA (The “Vyssos”) [2026] 1 Lloyd’s Rep 79, the Commercial Court held that a mortgagee was entitled to recover under a Mortgagee’s Interest Insurance (MII) policy despite a forged war risks cover note and a breach of trading warranties by the shipowner. The Court found that the proximate cause of loss was the mine strike, not the forged insurance, and that the mortgagee was not “privy” to the breach, as its consent had been induced by fraud. The decision reinforces that MII policies are designed to protect lenders from owner misconduct and non-recovery under primary insurance, and that fraud will not defeat cover where the mortgagee acted reasonably.

30 March ,2026 尚無留言