Foo Fio Na v.

[2007] 1 CLJ Dr Soo Fook Mun & Anor 229

A FOO FIO NA

v.

DR SOO FOOK MUN & ANOR

B FEDERAL COURT, PUTRAJAYA
MOHAMED DZAIDDIN CJ
AHMAD FAIRUZ CJ (MALAYA)
SITI NORMA YAAKOB FCJ
[CIVIL APPEAL NO: 02-20-2001(W)]
C 29 DECEMBER 2006

TORT: Negligence - Medical negligence - Skilled medical practitioner -

Standard of care - Whether a matter of medical judgment - Whether must
accord with standard of reasonableness imposed by law - Whether could
D still be negligent even if conduct was in accord with practice accepted as
proper by a body of medical men - Bolam principle - Whether not
applicable to all aspects of medical negligence - Rogers v. Whitaker,
consideration of

The appellant became totally paralysed after undergoing surgery for

E
neck injuries (dislocated vertebrae) at the second respondent
hospital. The appellant alleged that the paralysis was caused by
the treatment procedure adopted by the 1st respondent, an
orthopaedic surgeon at the hospital, and in the circumstances sued
the respondents for medical negligence. At the trial, the High
F
Court judge found for the appellant, ruling: (i) that, while the
appellant might have consented to the operation, she was not told
of the risk of paralysis coming from the operation; and (ii) that the
1st respondent was negligent in that, in seeking to correct the
dislocation, he had put in place a wire loop which had compressed
G
the spinal cord and caused the paralysis.

It was not disputed that, in deliberating on the issue of the scope

of a doctor’s duty of care, and concluding that the first
respondent was negligent in administering a course of treatment
H that led to the appellant’s paralysis, the learned judge had declined
to apply the so-called ‘Bolam test’ or ‘Bolam principle’ – ie, the
principle that a doctor is not guilty of negligence if he has acted
in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that medical act, even if there exists
I another like body professing and subscribing a differing opinion –
notwithstanding that such principle has been applied in a multitude
230 Current Law Journal [2007] 1 CLJ

of English and commonwealth cases. Be that as it may, the A

respondents appealed whereof the Court of Appeal, whilst steering
clear of commenting on the Bolam principle, nonetheless allowed
the appeals on the ground that there was no evidence to establish
that it was the surgery performed by the first respondent that
caused the paralysis. Upon the obtaining circumstances, the B
appellant applied for and obtained leave to appeal to the Federal
Court, and following that posed the following question of law for
the determination of the apex court, namely: “whether the Bolam
test as enunciated in Bolam v. Friern Hospital Management Committee
[1957] 2 All ER 118 in the area of medical negligence should C
apply in relation to all aspects of medical negligence”.

Held (answering question in the negative)

Per Siti Norma Yaakob FCJ delivering the judgment of the
court pursuant to s. 78 Courts of Judicature Act 1964: D

(1) The facts of the instant appeal differ vastly from the facts in
Bolam case. In any case, the issue here is not so much on
the consents given for the operations but on the risks
involved and whether the appellant was warned of such
E
risks. (paras 33 & 38)

(2) The finding by the High Court that the 1st respondent had
failed to exercise the care and skill of an ordinary competent
practitioner in his profession, is a finding of fact and the law
on appellate interference against findings of facts is well F
settled as to deter us from upsetting such a finding.
Moreover, there is sufficient evidence before the trial court
to justify it in concluding as it did. (paras 35-37)

(2a) That said, we are of the opinion that the Bolam test has no G
relevance to the duty and standard of care of a medical
practitioner in providing advice to a patient on the inherent
and material risks of the proposed treatment. The
practitioner is duty bound by law to inform his patient who
is capable of understanding and appreciating such information H
of the risks involved in any proposed treatment so as to
enable the patient to make an election of whether to
proceed with the proposed treatment with knowledge of the
risks involved or decline to be subjected to such treatment.
(para 39) I
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 231

A (3) While the majority of the English cases followed the Bolam
principle, the legal position has somewhat changed with the
House of Lord’s decision in Bolitho (administratrix of the estate
of Bolitho (deceased) v. City and Hackney Health Authority.
Likewise, there were case law in commonwealth jurisdictions
B that declined to follow the Bolam test, such as Rogers v.
Whitaker, F v. R and Naxakis v. Western General Hospital &
Another, among other cases. (paras 47, 52 & 55)

(3a) In Rogers v. Whitaker it was said that “in Australia, it has

C been accepted that the standard of care to be observed by
a person with some special skill or competence is that of the
ordinary skilled person exercising and professing to have that
special skill. But, that standard is not determined solely or
even mainly by reference to the practice followed or
D supported by a responsible body of opinion in the relevant
profession or trade … in the field of non-disclosure of risk
and the provision of advice and information, the Bolam
principle has been discarded and, instead, the courts have
adopted the principle that, while evidence of acceptable
E medical practice is a useful guide for the courts, it is for the
courts to adjudicate on what is the appropriate standard of
care”; and in Naxakis that “the test for medical negligence
is not what other doctors say they would do or would not
have done on the same or similar circumstances…” and that
F “in Rogers v. Whitaker, this court (Australian High Court) had
rejected the Bolam test and held that a finding of medical
negligence may be made even though the conduct of the
defendant was in accord with a practice accepted at that
time as proper by a responsible body of medical opinion”;
G and further in F v. R that “but professions may adopt
unreasonable practices. Practices may develop as to
disclosure, not because they serve the interests of clients,
but because they protect the interests or convenience of
members of the profession. The court has an obligation to
H scrutinise professional practices to ensure that they accord
with the standard of reasonableness imposed by the law”.
(paras 52, 54, 57 & 58)

(3b) In Malaysia, conflicting judgments had been delivered over

the preference and application of the Rogers v. Whitaker test
I
to the Bolam test. Nonetheless, Rogers v. Whitaker test was
fully endorsed in Kamalam a/p Raman & Ors v. Eastern
232 Current Law Journal [2007] 1 CLJ

Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estet, Ulu Tiram A
& Anor and subsequently in Tan Ah Kau v. The Government
of Malaysia. As the learned judge in Kamalam said “while due
regards will be had to the evidence of medical experts, I do
not accept myself as being restricted by the establishment in
evidence of a practice accepted as proper by a responsible B
body of medical men skilled in that particular art to finding a
doctor is not guilty of negligence if he has acted in
accordance with that practice. In short I am not bound by
the Bolam principle”. (paras 68 & 71)
C
(4) Bearing in mind the authorities, there is a need for members
of the medical profession to stand up to the wrong doings,
if any, as is the case of professionals in other professions. In
so doing, people involved in the medical negligence cases
would be able to obtain better professional advice and that D
the courts would be appraised with evidence that would
assist them in deliberations. On this basis, we are of the view
that Rogers v. Whitaker test would be a more appropriate
and a viable test of this millennium than the Bolam test.
(para 78) E

(4a) In the circumstances, the court would answer the question

posed in the negative. Accordingly, this appeal is allowed
with costs here, in the court of Appeal and the High Court
to be borne by the respondents. Likewise, the orders of the
F
High Court on quantum are restored and the deposit
returned to the appellant. (para 79)

Bahasa Malaysia translation of headnotes

Perayu menjadi lumpuh sepenuhnya setelah menjalani pembedahan G

di hospital responden kedua kerana kecederaan tengkok (terkehel
vertebra). Perayu mendakwa bahawa kelumpuhan adalah
disebabkan oleh prosedur rawatan responden pertama, seorang
pakar bedah ortopedik di hospital tersebut, dan dengan itu telah
memfail tuntutan kecuaian perubatan terhadap responden- H
responden. Di perbicaraan, hakim Mahkamah Tinggi membenarkan
tuntutan perayu atas alasan: (i) bahawa, walaupun perayu mungkin
telah mengizinkan pembedahan, beliau tidak diberitahu tentang
risiko mengalami lumpuh akibat dari pembedahan tersebut; dan (ii)
bahawa responden pertama telah cuai apabila, dalam usaha untuk I
membetulkan kedudukan vertebra, beliau telah memasukkan seutas
dawai yang telah menekan tulang belakang perayu sekaligus
menyebabkan kelumpuhannya.
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 233

A Tidak dinafikan bahawa yang arif hakim, dalam mentelaah isu

berkaitan tanggungjawab berjaga-jaga seorang doktor, serta dalam
memutuskan bahawa responden pertama cuai kerana memberi
rawatan yang berakhir dengan kelumpuhan perayu, telah enggan
menggunapakai apa yang dipanggilkan ‘ujian Bolam’ atau ‘prinsip
B Bolam’ – iaitu prinsip yang menyatakan bahawa seorang doktor
tidak melakukan kecuaian jika ia bertindak selaras dengan amalan
yang dianggap sebagai teratur oleh segolongan doktor yang
bertanggungjawab yang mempunyai kepakaran yang sama, tanpa
mengira sama ada terdapat segolongan doktor lain yang
C beranggapan sebaliknya – walaupun prinsip tersebut digunapakai
dalam banyak kes-kes Inggeris dan komanwel. Apapun, responden-
responden telah merayu dan Mahkamah Rayuan, sementara
mengelak dari membuat komen mengenai prinsip Bolam,
membenarkan rayuan atas alasan bahawa tidak terdapat bukti
D bahawa pembedahan yang dilakukan responden pertama adalah
penyebab kepada kelumpuhan. Dalam halkeadaan yang wujud,
perayu memohon dan memperoleh izin untuk merayu ke
Mahkamah Persekutuan, dan berikutnya telah mengemukakan
soalan undang-undang berikut untuk pemutusan mahkamah
E tertinggi, iaitu: “sama ada ujian Bolam seperti yang diutarakan di
dalam Bolam v. Friern Hospital Management Committee [1957] 2 All
ER 118 dalam bidang kecuaian perubatan harus dipakai kepada
semua aspek kecuaian perubatan”.

F Diputuskan (menjawab soalan secara negatif)

Oleh Siti Norma Yaakob menyampaikan penghakiman
mahkamah di bawah s. 78 Akta Mahkamah Kehakiman 1964:

(1) Fakta kes semasa berbeza dengan sangat ketara dari kes
Bolam. Apapun, isu di sini bukanlah sangat mengenai
G
keizinan yang diberi untuk pembedahan tetapi adalah
berkaitan risiko yang ditanggung dan sama ada perayu telah
diberi amaran tentangnya.

(2) Dapatan Mahkamah Tinggi bahawa responden pertama gagal

H menunjukkan keberjagaan dan kepakaran seperti seorang
pengamal biasa dalam profesionnya yang mempunyai
kebolehan yang serupa, adalah satu dapatan fakta dan
undang-undang mengenai campur tangan panel rayuan
terhadapnya adalah jelas sekaligus mengekang kami dari
I mengganggu dapatan tersebut. Lagipun, terdapat keterangan
mencukupi di hadapan mahkamah bicara untuk mencapai
rumusan yang dibuatnya itu.
234 Current Law Journal [2007] 1 CLJ

(2a) Selebihnya, kami berpendapat bahawa ujian Bolam tidak A

mempunyai kaitan dengan tanggungjawab untuk berjaga-jaga
seorang pengamal perubatan dalam memberi nasihat kepada
pesakit tentang risiko material dan inheren rawatan yang
dicadangkan. Pengamal tersebut bertanggungjawab di sisi
undang-undang untuk memberitahu pesakit yang berupaya B
memahami maklumat sedemikian tentang risiko-risiko yang
diambil pada rawatan yang dicadangkan, supaya, dengan itu,
pesakit boleh membuat pilihan sama ada untuk meneruskan
dengan rawatan yang dicadangkan dengan mengetahui
tentang risikonya ataupun menolak rawatan tersebut. C

(3) Sementara kebanyakan kes Inggeris mengikuti prinsip Bolam,

kedudukan undang-undang agak berubah dengan keputusan
House of Lords di dalam Bolitho (administratrix of the estate of
Bolitho (deceased) v. City and Hackney Health Authority. Begitu D
juga, undang-undang kes dalam bidangkuasa-bidangkuasa
komanwel telah enggan mengikuti prinsip Bolam, seperti yang
terserlah di dalam Rogers v. Whitaker, F v. R dan Naxakis v.
Western General Hospital & Another umpamanya.
E
(3a) Di dalam Rogers v. Whitaker ianya dikatakan bahawa “Di
Australia, telah diterima bahawa standard berjaga-berjaga yang
perlu ditunjukkan oleh seorang yang mempunyai kepakaran
atau kebolehan pakar adalah standard orang biasa yang
mempunyai kepakaran yang sama dan mengakui mempunyai
F
kepakaran dan kebolehan tersebut. Apapun, standard itu
tidak ditentukan sepenuhnya mahupun sebahagian besarnya
oleh rujukan kepada amalan yang diikuti atau disokong oleh
segolongan orang yang berada dalam profesion atau amalan
tersebut. … dalam kes-kes berkaitan kegagalan mendedah
G
risiko dan pemberian nasihat dan maklumat, prinsip Bolam
telah ditolak, dan mahkamah sebaliknya menggunapakai
prinsip bahawa, sementara keterangan amalan perubatan yang
sudah diterimapakai boleh diguna sebagai panduan berguna
bagi mahkamah, mahkamah harus menentukan sendiri apakah
H
standard berjaga-jaga yang sesuai”; dan di dalam Naxakis
bahawa “ujian bagi kecuaian perubatan tidak bergantung
kepada apa yang doktor-doktor lain kata apa yang mereka
akan atau sepatutnya buat dalam keadaan yang sama atau
serupa” dan bahawa “di dalam Rogers v. Whitaker, mahkamah
I
ini (Mahkamah Tinggi Australia) telah menolak ujian Bolam
dan memutuskan bahawa dapatan kecuaian perubatan boleh
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 235

A dibuat walaupun tingkah laku defendan selaras dengan

amalan yang diterima waktu itu sebagai teratur oleh
segolongan pengamal perubatan”; dan selanjutnya di
dalam F v. R bahawa “tetapi profesion mungkin
menerimapakai amalan-amalan yang tidak munasabah. Amalan-
B amalan mungkin diwujudkan berhubung pendedahan, bukan
kerana ia memenuhi kepentingan pelanggan, tetapi kerana ia
melindungi kepentingan atau kemaslahatan anggota-anggota
profesion. Mahkamah mempunyai obligasi untuk meneliti
amalan-amalan profesional demi mempastikan ianya menepati
C standard kemunasabahan yang ditetapkan oleh undang-
undang”.

(3b) Di Malaysia, penghakiman-penghakiman yang diputuskan

tidak menunjukkan keseragaman sama ada untuk memakai
D ujian Rogers v. Whitaker ataupun ujian Bolam. Walaupun
begitu, ujian Rogers v. Whitaker telah diterimapakai
sepenuhnya di dalam Kamalam a/p Raman & Ors v. Eastern
Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estet, Ulu Tiram
& Anor, dan selepas itu oleh Tan Ah Kau v. Government of
E Malaysia. Seperti yang dikatakan oleh yang arif hakim di
dalam Kamalam “sementara pertimbangan harus diberi kepada
keterangan pakar perubatan, saya tidak menganggap diri saya
sebagai dikongkong oleh pembuktian dalam keterangan
mengenai kewujudan amalan yang diterima sebagai teratur oleh
F segolongan badan perubatan yang bertanggungjawab yang
mempunyai kepakaran yang sama bagi mendorong saya untuk
mendapati seseorang doktor sebagai tidak bersalah jika ia
bertindak selaras dengan amalan tersebut. Dengan kata lain,
saya tidak terikat dengan prinsip Bolam”.
G
(4) Mengambilkira autoriti-autoriti, terdapat keperluan di pihak
pengamal-pengamal profesion perubatan untuk bertanggungjawab
atas kesilapan-kesilapan mereka, jika ia berlaku, sepertimana
halnya dengan profesion-profesion lain. Dengan berbuat
demikian, orang ramai yang terlibat dengan kes-kes kecuaian
H
perubatan boleh mendapat nasihat profesional yang lebih baik
dan keterangan-keterangan boleh dikemukakan yang dapat
membantu mahkamah dalam pertimbangannya. Atas dasar ini,
kami berpendapat bahawa dalam milenia ini ujian Rogers v.
Whitaker berupaya menjadi ujian yang lebih viable dan sesuai
I
berbanding ujian Bolam.
236 Current Law Journal [2007] 1 CLJ

(4a) Dengan demikian, mahkamah menjawab soalan yang A

dikemukakan secara negatif. Berikutnya, rayuan dibenarkan
dengan kos di sini, di Mahkamah Rayuan dan di Mahkamah
Tinggi ditanggung oleh responden-responden. Begitu juga,
perintah-perintah Mahkamah Tinggi mengenai kuantum
dikekalkan dan deposit dikembalikan kepada perayu. B

Case(s) referred to:

Asiah Kamsah v. Dr Rajinder Singh & Ors [2001] 4 CLJ 269 HC (refd)
Battersby v. Tottman [1984] 35 SASR 577 (refd)
Best v. Wellcome Foundation Ltd [1994] 5 Med LR 81 (refd)
C
Blenkiron v. Great Central Gas Consumers’ Co [1860] 2 F & F 437 (refd)
Bolitho (administratix of the estate of Bolitho (deceased) v. City and Hackney
Health Authority [1997] 4 All ER 771 (foll)
Chin Keow v. Government of Malaysia & Anor [1967] 2 MLJ 45 (refd)
China Airlines Ltd v. Maltran Air Corp Sdn Bhd & Another Appeal [1996] 3
CLJ 163 FC (refd) D
Elizabeth Choo v. Government of Malaysia [1970] 2 MLJ 171 (refd)
F v. R [1983] 33 SASR 189 (foll)
Foo Fio Na v. Dr Soo Fook Mun & Anor [2002] 2 CLJ 11 FC (refd)
Gascoine v. Ian Sheridan & Co [1994] 5 Med LR 437 (refd)
Hajgato v. London Health Association [1982] 36 OR (2d) 669 (refd)
E
Har Sai Hong & Anor v. University Hospital & Anor [2001] 8 CLJ 208 HC
(refd)
Hucks v. Cole [1993] 4 MED LR 393 (refd)
Joyce v. Wandworth Health Authority [1995] 6 Med LR 60 (refd)
Kamalam Raman & Ors v. Eastern Plantation Agency (Johore) Sdn Bhd Ulu
Tiram Estate, Ulu Tiram, Johore & Anor [1997] 5 CLJ 250 HC (refd) F
Kow Nam Seng v. Nagamah & Ors [1982] 1 MLJ 128 (refd)
Liew Sin Kiong v. Dr Sharon DM Paulraj [1996] 2 CLJ 995 HC (refd)
Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635
(refd)
Naxakis v. Western General Hospital & Another [1999] HCA 22 1 (foll)
G
R Bateman [1925] 94 LBKB 79 (refd)
Renal Link (KL) Sdn Bhd v. Dato’ Dr Harnam Singh [1997] 3 CLJ 225
CA (refd)
Rogers v. Whitaker [1992] 175 CLR 479 (foll)
Sidaway v. Board of Governors of the Bethlem Royal Hospital and the
Maudsley Hospital & Ors [1985] 1 AC 871 (refd) H
Swamy v. Matthews [1967] 1 MLJ 142 (refd)
Tan Ah Kau v. The Government of Malaysia [1997] 2 CLJ Supp 168 HC
(refd)

I
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 237

A Legislation referred to:

Courts of Judicature Act 1964, s. 78(1)

Other source(s) referred to:

Michael Jones, Medical Negligence, [1996] edn, p 95

B For the appellant - Loh Siew Cheang (Rajashree Suppiah & Lee Sing Teong
with him); M/s Cheang & Ariff
For the 1st respondent - PS Ranjan (MS Dhillon with him); M/s PS Ranjan
& Co
For the 2nd respondent - GL Ambrose (AY Varughese with him); M/s Chooi
& Co
C
[Appeal from Court of Appeal, Civil Appeal No: W-02-281-1999]

Reported by WA Sharif

D
JUDGMENT

Siti Norma Yaakob FCJ:

[1] The question of law that is posed to us in this appeal is
E
couched in the following words.
Whether the “BolamTest” as enunciated in Bolam v. Friern Hospital
Management Committee [1957] 2 All ER 118 in the area of medical
negligence should apply in relation to all aspects of medical
F negligence.

[2] To appreciate the “Bolam Test” which is the touchstone of

liability for medical negligence in England, it is necessary that we
first consider the facts of the case itself.
G [3] The plaintiff in Bolam’s case, one John Hector Bolam, a
salesman, was admitted to Friern Hospital suffering from the after
effects of a mental illness of the depressive type. He was examined
by the consultant psychiatrist attached to the hospital and was
advised to undergo electro-convulsive therapy which was carried
H out by placing electrodes on the head to allow an electric current
from a machine to pass through the brain. One of the results of
the treatment was to cause convulsion in the nature of a fit. The
consultant psychiatrist did not warn Bolam of the risks involved,
one of which was the risk of fracture.
I
238 Current Law Journal [2007] 1 CLJ

[4] Bolam signed a form consenting to the treatment and A

nothing untoward happened to him when he received the
treatment for the first time. However on the second occasion the
treatment was administered by Dr. C. Allfrey, a senior registrar at
the hospital. An initial shock was passed through Bolam’s brain for
approximately one second and was followed within approximately B
four seconds by a succession of five momentary shocks
administered for the purpose of damping the amplitude of the
jerking movements of Bolam’s body. No further shocks were
administered and the convulsion was not unusually violent. The
voltage of the current was 150 volts, the frequency fifty cycles per C
second.

[5] During this treatment Bolam lay in a supine position with a

pillow placed under his back and his lower jaw was supported by
a mouth gag. Otherwise he was not restrained in any way, D
although a male nurse stood at each side of him in case he should
fall from his bed. No relaxant drugs were administered to Bolam
prior to the treatment.

[6] In the course of this treatment, Bolam sustained severe

E
physical injuries consisting in the dislocation of both hip joints with
fractures of the pelvis on each side which were caused by the
head of the femur on each side being driven through the
acetabulum or cup of the pelvis.

[7] In claiming damages for his injuries against the management F

of the Hospital, Bolam contended that the hospital was vicariously
negligent in permitting Dr. Allfrey to administer electro-convulsive
therapy without the previous administration of a relaxant drug
which would have excluded the risk of fracture altogether or
without restaining his convulsive movements by manual control G
and in failing to warn him of the risk he was taking in consenting
to have the treatment.

[8] The medical evidence at the trial showed that competent

doctors held divergent views on the desirability of using relaxant H
drugs and restraining the patient’s body by manual control and
also on the question of warning a patient of the risks of electro-
convulsive therapy. The other medical evidence that was most
significant was that the risk of fracture was 1 in 10,000.
I
[9] In the course of his summing up to the jury, the trial judge,
McNair J, made the following remarks on the standard of proof in
a medical negligence suit.
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 239

A But where you get a situation which involves the use of some
special skill or competence, then the test whether there has been
negligence or not is not the the test of the man on the top of a
Clapham omnibus, because he has not got this special skill. The
test is the standard of the ordinary skilled man exercising and
professing to have that special skill.
B
[10] Later when analyzing that standard of proof the learned
judge made the following conclusive statement regarding a doctor’s
duty of care.

C A doctor is not guilty of negligence if he has acted in accordance

with a practice accepted as proper by a responsible body of
medical men skilled in that medical act … Putting it the other way
round, a doctor is not negligent, if he is acting in accordance with
such practice, merely because there is a body of opinion that
takes a contrary view.
D
Relying on that direction which is now accepted as the Bolam test
or Bolam principle and the divergent medical evidence, the jury
found that the hospital was not negligent.

E [11] There are two limbs to the Bolam test. The first is the
requirement of a professional person in this case a doctor, to
exercise reasonable care in undertaking the task associated with
his particular professional calling. The second being commonly
invoked, is the assertion that a defendant doctor will not be liable
F under the first limb if he has complied with a responsible
professional practice, allowing for the possibility that there may be
more than one such practice.

[12] The legal position as enunciated by McNair J therefore

contains the important elements that the doctor must have acted
G
in accordance with an “accepted medical practice”; and that the
accepted practice must be regarded as proper by “a responsible
body of medical men” in that art.

[13] Bolam’s case is distinguishable from the following factors.

H
(1) The medical evidence showed that the risk of fracture was 1
in 10,000.

(2) Electro-convulsive therapy was a break through in the

treatment of a person suffering from a particular type of
I
disorder where before such a person had little or no hope of
recovery whatsoever. Today he has a real chance of recovery.
240 Current Law Journal [2007] 1 CLJ

(3) The hospital’s alleged negligence can be summarized into the A

following 3 categories.

(i) Failure to give Bolam a warning of the risks involved in

electro-convulsive therapy so that he might have had a
chance to decide whether he was going to take those risks B
or not.

(ii) Failure to use any relevant drugs which, if used, could

have excluded the risk of fracture altogether.

(iii) That if relevant drugs were not used then at least some C
form of manual control beyond shoulder control, support
of the chin and placing a pillow under the back should
have been used.
[14] Bolam testified he was not given any warning as to risks, nor D
asked whether he would not undergo treatment as there is a one
in 10,000 risk involved.

[15] In the instant appeal the facts insofar as they were not
disputed happened in the following manner.
E
[16] The appellant was a front seat passenger in a motor car that
crashed into a tree on the night of 11 July 1982. The car was
driven by her boyfriend and there were two other passengers in
the back seat. The accident happened near Assunta Hospital
(“the hospital”) where the appellant and her two companions were F
brought to and where the appellant was subsequently warded for
the following injuries.

(1) Bruises on the lower abdominal wall.

G
(2) Bruises on the right breast.

(3) Bruises on both anterior iliac spine areas.

(4) Closed dislocation C4 and C5 vetebrae with bilaterally locked
facets. H

[17] Injury No. (4), the most serious of her injuries caused much
pain to her neck each time she moved her head. Dr. Celine
Pereira, the doctor on duty, prescribed the initial treatment by
having X-rays taken of her neck and placing a cervical collar I
around it. Dr. Celine Pereira then contacted the orthopaedic
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 241

A surgeon on duty Dr. Soo Fook Mun, the 1st respondent, who was
at home at that time and she was advised that the collar should
remain and the appellant stablised by keeping her in bed and
placing sand-bags on either side of her head to prevent her from
moving her head and to reduce the risk of paralysis. This was
B accordingly done.

[18] The 1st respondent saw the appellant for the first time the
following morning and after examining her, prescribed the first
treatment by placing her on traction with weights in a further
C attempt to reduce the dislocated cervical vertebrae. This proved
to be unsuccessful and on 14 July 1982, the 1st respondent
performed a manipulation or closed reduction procedure under
general anaesthetic to unlock the locked facet joint. Despite three
attempts the 1st respondent failed to reduce the dislocated cervical
D vertebrae and on 19 July 1982, the 1st respondent performed the
first of two operations to place the dislocated vertebrae into their
original positions. This involved an open reduction whereby the
nape of the appellant’s neck was surgically opened and the
dislocated vertebrae moved to their normal positions and secured
E by bone grafting and the insertion of a loop of wire to stabilise
the spinal cord. X-rays were taken after the surgery.

[19] Unfortunately this procedure too failed as the appellant

became paralysed the day after the operation. Suspecting that the
paralysis might be due to vascular infarction ie, when blood supply
F
to the spinal cord is interrupted and cutoff, the 1st respondent
prescribed a course of medication to the appellant by the injection
of Dexamethasone for over four days. When the appellant’s
condition showed no signs of improvement the 1st respondent
called in a neurosurgeon, Dr. Mohandas, to examine the appellant.
G
Following his examination, Dr. Mohandas did a myelogram test on
her on 5 August 1982 and he found that the wire loop which was
placed to correct the dislocation of C4 and C5 vertebrae during
the first operation was pressuring the spinal cord and that was the
cause of the total paralysis. As a result of this the 1st respondent
H
performed a second operation on the appellant on the same day
whereby he removed the wire loop. But this treatment too did not
remove the paralysis and the appellant continued to be confined
to a wheel chair to this very day.
I
242 Current Law Journal [2007] 1 CLJ

[20] In her medical negligence suit filed against the 1st and 2nd A
respondents in January 1987, the appellant succeded in proving
that:

(1) her paralysis was caused by the first operation performed by

the 1st respondent and was not due to the motor car B
accident.

(2) the 1st respondent was negligent in tying the wire loop which
compressed the spinal cord and which led to the paralysis.

(3) the 1st respondent was also negligent in not doing anything C
immediately after the discovery of the paralysis to remedy it.
(4) that the 1st respondent was negligent when he performed the
second operation in the absence of Dr. Mohandas who
pointed out the cause of the paralysis. D

[21] As for the 2nd respondent, since it was proven that the 1st
respondent was at all material times its servant or agent, the 2nd
respondent was held vicariously liable for the negligent acts of the
1st respondent.
E
[22] Pursuant to the finding of fault on the part of both
respondents and the award of damages against them separate
notices of appeal were filed by the 1st respondent against the
appellant and 2nd respondent and by the 2nd respondent against
the appellant and 1st respondent to the Court of Appeal. F

[23] Both appeals were heard together at the end of which the
Court of Appeal allowed both appeals, set aside the orders of the
High Court and ordered that appellant bear the costs of both
appeals as well as the trial. G

[24] Following this, the appellant successfully applied for and

obtained leave to appeal to this court to determine the question
of law which is already stated at the beginning of this judgment.

[25] In granting such leave, Steve Shim CJ (Sabah & Sarawak), H

Abdul Malek and Mokhtar Abullah, FCJJ, have in their unanimous

judgment reported at [2002] 2 CLJ 11, confined that question of
law to the “particular aspect of medical negligence [that] relates
more specifically to the duty and standard of care of a medical
practitioner in providing advice to a patient on the inherent or I

material risks of the proposed treatment.”

 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 243

A [26] At common law the duty of care owed by a doctor arises

out of his relationship with his patient. Without the doctor and
patient relationship, there is no duty on the part of the doctor to
diagnose, advice and treat his patient.

B [27] That duty of care has been aptly described by Lord Hewart
CJ in R. Bateman [1925] 94 LBKB 79 to be as follows.
If a person holds himself out as possessing special skill and
knowledge and he is consulted, as possessing such skill and
knowledge by or on behalf of a patient, he owes a duty to the
C patient to use due caution in undertaking the treatment and the
patient submits to his direction and treatment accordingly, he owes
a duty to the patient to use diligence, care, knowledge, skill and
caution in administering the treatment. No contractual relation is
necessary, nor is it necessary that the service be rendered for
D reward.

[28] However in the exercise of his duty of care, the doctor is

expected to maintain a standard which under the common law is
achieved by the standard satisfied by the hypothetical reasonable
man. However case law has redefined that standard to be that of
E
the Bolam principle which in substance restrains the courts from
scrutinizing and evaluating the professional conduct of a doctor
possessed of a special skill and competence and that he is not
negligent if he has acted within a practice accepted as proper by
a body of his own peers who possess similar skill and competence
F
as the doctor in question. It matters not that there exists another
body with a differing opinion that does not accept the action
taken by the doctor. It is enough that he had acted in accordance
with one of the bodies of opinion and the courts can never
declare his action to be in any way negligent. This over protective
G
and deferential approach perhaps conform to the well known
phrase that “A doctor knows best.”

[29] In the instant appeal, the trial judge did not apply the Bolam
principle, preferring instead to question, analyze and conclude that
H on the evidence before him, the 1st respondent was negligent in
administering a cause of treatment that led to the appellant’s
paralysis. The Court of Appeal whilst steering clear of making any
pronouncement on the Bolam principle nonetheless disagreed with
the High Court and concluded there was no evidence to establish
I with certainty that it was the first surgery performed by the 1st
respondent that caused the paralysis and freed the 1st respondent
of any liability for the appellant’s misfortunes.
244 Current Law Journal [2007] 1 CLJ

[30] It cannot be disputed that the 1st respondent was under a A

duty to advise the appellant on the course of treatment to be
undertaken and the risks involved and the issue is whether there
has been a breach of that duty.

[31] It is the 1st respondent’s case that the neck injuries suffered B
by the appellant were as a result of the motor car accident and if
left unattended would lead to paralysis sooner or later. It was
under these circumstances that when the conservative treatment
proved to be negative that the first operation was performed and
when that proved unsuccessful the second operation was C
undertaken and on both occasions the 1st respondent had the
expressed consents of the appellant to perform both operations.

[32] The expressed consents refer to two consent forms executed

by the appellant. The first was signed by her at the time of her
D
admission when it was not even contemplated that surgery was
necessary. The second consent form showed her thumb print on
the form and bearing a date after the first operation. The trial
judge questioned the voluntariness of the thumb print as it was
not executed in the presence of a witness as by that time she had
E
lost all sensation to her limbs.

[33] But the issue here is not so much on the consents given for
the two operations but on the risks involved and whether the
appellant was warned of such risks. She had testified that had she
been warned of the risks involved she would not have readily F
agreed to undergo the first operation.

[34] There was conflicting evidence on this and the trial judge
made the following finding when dealing with the appellant’s first
expressed consent. G

It would also be concluded that at the time when that consent

was signed both defendants did not know whether the plaintiff
really needed the operation. As such I am of the view that it
would not be possible for the 2nd defendant to explain the
procedure and the risks of the operation when the consent in the H
above-stated form was given or signed. For that reason I believe
the plaintiff when she said that the 2nd defendant told her that
the 1st operation (open reduction) which took place on 19.7.1982
was a minor operation to correct the little problem of the neck
that she was suffering. In other words she was not told of the I
risk of paralysis coming from that operation.
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 245

A [35] It must also be remembered that the appellant suffered total

paralysis after the first operation and it was to correct this
situation that the second operation was performed. In this respect
the trial judge made the following observations.

B As to the 1st operation, it is clear to me that the 2nd defendant

had done something which caused the paralysis. I am satisfied
that the paralysis was caused by the wire loop compressing the
spinal cord and when the wire loop was removed during the 2nd
operation the plaintiff was able to move her upper limbs. It does
not matter what explanation the 2nd defendant gave for removing
C the wire loop because the fact remained that the plaintiff recovered
the use of her upper limbs after the removal of the wire loop.
The wire loop inserted by the 2nd defendant during the 1st
operation was the cause of the paralysis. The 2nd defendant was
again negligent when he did not take any step to remedy the
D paralysis immediately. Instead he waited for two weeks to do the
remedial operation and all that time he kept on assuring the
plaintiff that she would recover from the paralysis which was only
temporary in nature. In my view the above shows that the 2nd
defendant failed to exercise the care and skill of an ordinary
competent practitioner in that profession as stated by the Federal
E Court in the case of Kow Nan Seng v. Nagamah & Ors. [1982] 1
MLJ 128.

[36] The 2nd defendant referred to by the High Court is the 1st
respondent before us.
F
[37] This is a finding of fact and the law on appellate interference
against findings of facts is well settled as to deter us from upsetting
such a finding. Moreover there is sufficient evidence before the
court to justify it in concluding as it did. See the cases of (1)
Renal Link (KL) Sdn. Bhd. v. Dato’ Dr Harnam Singh [1997] 3 CLJ
G
225, (2) China Airlines Ltd. v. Maltran Air Corp Sdn. Bhd. and
Another Appeal [1996] 3 CLJ 163 and (3) Maynard v. West
Midlands Regional Health Authority [1985] 1 All ER 635.

[38] More importantly, the facts of the instant appeal differ vastly
H with the facts in Bolam case in that:

(1) Bolam was a mental patient, and unlike the appellant, who has
been described as “a bright young lady” by the Court of
Appeal, it is doubtful whether he was in a position to give any
I consent to any treatment to be given to him.
246 Current Law Journal [2007] 1 CLJ

(2) had a warning of risk been communicated to him, it is also A

doubtful whether he was in a position to comprehend the true
nature of the risks involved.

(3) the risk of injury in the nature of a fracture to Bolam was one
in ten thousand. The same cannot be attributed to the B
appellant as the risk of paralysis was present and real.

(4) unlike Bolam’s case there is no conflicting body of medical

opinion adduced in the instant appeal to establish whether the
appellant should or should not be warned of the risks of
C
paralysis.

[39] That said, we are of the opinion that the Bolam test has no
relevance to the duty and standard of care of a medical
practitioner in providing advice to a patient on the inherent and
material risks of the proposed treatment. The practitioner is duty D
bound by law to inform his patient who is capable of
understanding and appreciating such information of the risks
involved in any proposed treatment so as to enable the patient to
make an election of whether to proceed with the proposed
treatment with knowledge of the risks involved or decline to be E
subjected to such treatment.
[40] Case law on this aspect of medical negligence has not been
consistent in the application of the Bolam principle by the English
courts. F

[41] One such case relates to the House of Lords’ dissenting

judgment of Lord Scarman in Sidaway v. Board of Governors of the
Bethlem Royal Hospital and the Maudsley Hospital and Others [1985]
1 AC 871. The learned judge expressed his observations in the
G
following manner.
In my view the question whether or not the omission to warn
constitutes a breach of the doctor’s duty of care towards his
patient is to be determined not exclusively by reference to the
current state of responsible and competent professional opinion and H
practice at the time, though both are, of course, relevant
considerations, but by the court’s view as to whether the doctor
in advising his patient gave the consideration which the law
requires him to give to the right of the patient to make up her
own mind in the light of the relevant information whether or not
I
she will accept the treatment which he proposes.
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 247

A [42] In that case, Mrs. Sidaway suffered personal injuries as a

result of a surgical operation done by a neuro-surgeon, Mr.
Falconer who died five years before the trial of her action. She
did not allege negligence on the performance of the operation but
rested her case on the failure of Mr. Falconer to inform her of
B the risk inherent on the operation for had she been so warned she
would not have consented to the operation.

[43] The case of Hucks v. Cole [1993] 4 MED LR 393, suggests

a shift in attitude when determining a doctor’s liability in a given
C case. The judges in that case adopted a pragmatic approach to
this issue and held that it was appropriate for the judges to reject
medical expert evidence if they do not really stand up to analysis.
The defendant in that case was a general practitioner in Somerset
who possessed a diploma in obstetrics. Mrs. Hucks had been one
D of the patients in a maternity hospital and after giving birth to her
child, suffered from fulminating septicaemia, which caused various
sores and yellow sports on her fingers and toes. Dr Cole put the
patient on a five-day course of antibiotics known as tetracycline
and it was taken off as the sores were improving. The next day
E Mrs Huck contracted septicemia, puerperal fever. She sued Dr
Cole for negligence, alleging that he should have treated her with
penicillin. The defendant contended that he had acted in
accordance with the reasonable practice of other doctors with
obstetric experience.
F
[44] At the trial, Lawton J found Dr Cole to have been negligent
and the Court of Appeal upheld his finding. Though the court
understood Dr Cole’s action couched with a sense of security, the
court was willing to apply the test of reasonable care, as to
whether the defendant had acted in accordance with approved
G
practice. Based on the evidence, Dr Cole was found to be
negligent because he did not take “every precaution” to prevent
the outbreak of puerperal fever and it mattered not if other
doctors would have acted as he did.
H [45] On appeal Sach LJ opined that “when risks of greater danger
are knowingly taken as a matter of professional practice then,
however small the risks, the court must carefully examine the
practice, particularly where the risks can be easily and
inexpensively avoided”.
I
248 Current Law Journal [2007] 1 CLJ

[46] The decision in Hucks was followed in Gascoine v. Ian A

Sheridan & Co [1994] 5 Med LR 437 and in another case, Joyce
v. Wandworth Health Authority [1995] 6 Med LR 60 where
Overend J commented that “the medical practice must stand up
to analysis and be unreasonable in the light of medical knowledge
at that time”. B

[47] However, a majority of the cases followed the principles set

out in Sidaway in which the courts have effectively allowed a
doctor’s liability to be determined by medical judgment.
Nevertheless the legal position has somewhat changed with the C
House of Lords’ decision in Bolitho (administratix of the estate of
Bolitho (deceased) v. City and Hackney Health Authority [1997] 4 All
ER 771.

[48] In that case, the plaintiff a two year old boy, who has a past
D
history of hospital treatment for croup, was readmitted to hospital
under the case of Dr H and Dr R. On the following day the
plaintiff had two episodes during which he turned white and
clearly had difficulty in breathing. Dr H was called in the first
instance and she delegated Dr R to attend in the second instance
E
but neither attended the plaintiff. At about 2.30pm, the plaintiff
suffered total respiratory failure and a cardiac arrest resulting in
severe brain damage and subsequently died. The mother continued
his proceedings for medical negligence as the administratrix of his
estate. The defendant accepted that Dr H had acted in breach of
F
her duty of care to the plaintiff but contended that the cardiac
arrest would not have been avoided if Dr H or some other
suitable deputy had attended.

[49] Lord Browne-Wilkinson delivering the judgment of the House

of Lords expressed his findings at p. 778 of the report as follows. G

… In my view the court is not bound to hold that a defendant

doctor escapes liability for negligent treatment or diagnosis just
because he leads evidence from a number of medical experts who
are genuinely of opinion that the defendant’s treatment or
H
diagnosis accorded with sound medical practice.

… In particular, in cases involving, as they so often do, the

weighing of risks against benefits, the judge before accepting a
body of opinion as being responsible, reasonable or respectable,
will need to be satisfied that, in forming their views, the experts I
have directed their minds to the question of comparative risks and
benefits and have reached a defensible conclusion on the matter.
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 249

A [50] In the course of his speech and after discussing some

decided cases, the learned judge also made the following pertinent
remarks.
These decisions demonstrate that in cases of diagnosis and
B
treatment there are cases where, despite a body of professional
opinion sanctioning the defendant’s conduct, the defendant can
properly be held liable for negligence (I am not here considering
questions of disclosure of risk). In my judgment that is because,
in some cases, it cannot be demonstrated to the judge’s
satisfaction that the body of opinion relied on is reasonable or
C responsible. In the vast majority of cases the fact that
distinguished experts in the field are of a particular opinion will
demonstrate the reasonableness of that opinion. In particular,
where there are questions of assessment of the relative risks and
benefits of adopting a particular medical practice, a reasonable view
D
necessarily presupposes that the relative risks and benefits have
been weighed by the experts in forming their opinions. But if, in
a rare case, it can be demonstrated that the professional opinion
is not capable of withstanding logical analysis, the judge is entitled
to hold that the body of opinion is not reasonable or responsible.

E [51] It would appear that Bolitho decided that if it can be shown

that the professional opinion relied upon was not capable of
withstanding logical analysis, the judge is entitled to hold that the
body of opinion was not reasonable or responsible.

F
[52] Commonwealth jurisdictions have also declined to follow the
Bolam test. One such case is the Australian case of Rogers v.
Whitaker [1992] 175 CLR 479, where the facts disclose that
Whitaker who was almost totally blind in the right eye consulted
Rogers, an ophthalmic surgeon. The latter advised her that an
G
operation on her right eye would not only improve its appearance
but would probably restore significant sight to it. Whitaker agreed
to undergo surgery but it did nothing to her right eye but
developed inflammation to her left eye and this led to the loss of
sight of that good eye. In the Supreme Court of New South
H
Wales Rogers was held liable in that he had failed to warn
Whitaker that as a result of the surgery, she might develop a
condition known as sympathetic opthalmia in her left eye. Rogers’
appeal to the Court of Appeal was dismissed and in affirming that
decision and following Lord Scarman’s ruling in Sidaway, the High
I
Court made the following pronouncements.
250 Current Law Journal [2007] 1 CLJ

In Australia, it has been accepted that the standard of care to be A

observed by a person with some special skill or competence is
that of the ordinary skilled person exercising and professing to
have that special skill. But, that standard is not determined solely
or even primarily by reference to the practice followed or
supported by a responsible body of opinion in the relevant
B
profession or trade. Even in the sphere of diagnosis and
treatment, the heartland of the skilled medical practitioner, the
Bolam principle has not always been applied. Further, and more
importantly, particularly in the field of non-disclosure of risk and
the provision of advice and information, the Bolam principle has
been discarded and, instead, the courts have adopted the principle C
that, while evidence of acceptable medical practice is a useful guide
for the courts, it is for the courts to adjudicate on what is the
appropriate standard of care after giving weight to “the paramount
consideration that a person is entitled to make his own decisions
about his life.”
D
[53] The decision in Rogers was followed by the Supreme Court
of South Australia in the case of F v. R [1983] 33 S.A.S.R. 189
and Battersby v. Tottman [1984] 35 S.A.S.R. 577, 582 which
rejected the notion that the court is automatically bound by
evidence as to the practice of the medical profession. The court E
has an obligation to question and scrutinize the professional
practice, to ensure that the standard set by law is attained. In F
v. R [1983] 33 S.A.S.R. 189 at p. 191 King CJ outlined the scope
of the duty to disclose in the following manner.
F
Determination of the scope of the doctor’s duty to disclose
involves consideration of two values which are sometimes in
conflict, namely the duty of the doctor to act in what he conceives
to be the best interests of his patient and the right of the patient
to control his own life and to have the information necessary to
G
do so.

What is in question is the scope of the doctor’s duty of care. He

is required to act reasonably, not only in his actual treatment of
the patient, but also in relation to the disclosure of information.
In Chatterton v. Gerson Bristow J. held that it is “the duty of a H
doctor to explain what he intends to do, and its implications, in
the way a careful and responsible doctor in similar circumstances
would have done”. It is my opinion that that is a correct
statement of the law, and that the duty extends, not only to the
disclosure of real risks of misfortune inherent in the treatment, but
also any real risk that the treatment, especially if it involves major I
surgery, may prove ineffective.
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 251

A What a careful and responsible doctor would disclose depends

upon the circumstances. The relevant circumstances include the
nature of the matter to be disclosed, the nature of the treatment,
the desire of the patient for information, the temperament and
health of the patient, and the general surrounding circumstances.
B
[54] This is followed by the following warning from the learned
judge as to the reality of the situation.
But professions may adopt unreasonable practices. Practices may
develop in professions, particularly as to disclosure, not because
C they serve the interest of the clients, but because they protect the
interests or convenience of members of the profession. The court
has an obligation to scrutinise professional practices to ensure that
they accord with the standard of reasonableness imposed by the
law.

D [55] In the realm of diagnosis, treatment and the duty to warn,

the ruling of the High Court of Australia in Naxakis v. Western
General Hospital & Another [1999] HCA 22 1 was able to settle
the ongoing doubt which existed in Rogers v. Whitaker, as to,
whether Rogers was restricted to cases relating to negligent advice
E only.
[56] In Naxakis, a 12 year old boy, Paraskevas Naxakis was
struck on the head by his schoolmate’s school bag. He collapsed
and was admitted by a general practitioner to the Western General
F Hospital for head injury. At the hospital the appellant fell into
unarousable unconsciousness for five minutes and was
unresponsive to painful stimuli. A preliminary diagnosis was made
of a subarachnoid (traumatically caused) haemorrhage caused by
the blow to the head. He remained in hospital for nine days under
G the supervision of the second respondent, Mr. Jensen, a senior
neurosurgeon at the hospital. A CAT scan was carried out which
indicated that he was suffering from subarachnoid (traumatically
caused) haemorrhage. However his condition improved and the
appellant was discharged. Two days later the appellant collapsed
H and was taken to the Royal Children’s Hospital where he was
attended to by Mr Klug, director of neurosurgery. An angiogram
conducted revealed that the appellant suffered a major intracranial
bleed from a burst aneurysm. An operation was performed to
insert a ventricular peritoneal shunt to drain cerebrospinal fluid
I and a craniotomy was performed to clip the aneurysm. The
appellant brought an action in the Supreme Court of Victoria
252 Current Law Journal [2007] 1 CLJ

against the Senior neurosurgeon and the hospital for failure to A

properly diagnose and that his negligence had led him to suffer
serious and permanent physical and intellectual impairment. The
trial judge accepted a no case to answer. The appellant’s appeal
was unsuccessful when the Court of Appeal held that there was
no basis for the claim that the neurosurgeon failed to consider the B
possibility of an aneurysm.

[57] Gaudron J, speaking for the High Court of Australia

reaffirmed the rejection of the Bolam test with the following
remarks at p. 4 of the report. C

… it is important to bear in mind that the test for medical

negligence is not what other doctors say they would or would not
have done in the same or similar circumstances …

To treat what other doctors do or do not do as decisive is to D

adopt a variant to the direction given to the jury in Bolam v. Friern
Hospital Management Committee (“the Bolam rule”) ...

The Bolam rule, which allows that the standard of care owed by
a doctor to his or her patient is “a matter of medical judgment”,
was rejected by this Court in Rogers v. Whitaker”. E

[58] McHugh J, another member of the panel expressed the

same sentiments at p. 12 of the report.
In my opinion, that evidence of Mr Klug was sufficient to get the
plaintiff’s case to the jury, irrespective of whether Mr. Jensen did F
or did not consider performing an angiogram. … If there is
evidence upon which the jury could reasonably find negligence on
the part of a doctor, the issue is for them to decide irrespective
of how many doctors think that the defendant was not negligent
or careless. Nor is it to the point that this evidence of Mr. Klug G
also shows that a respectable body of medical opinion would not
have performed an angiogram in the circumstances of this case.
To allow that body of opinion to be decisive would re-introduce
the Bolam test into Australian law. In Rogers v. Whitaker, this
Court rejected the Bolam test and held that a finding of medical
negligence may be made even though the conduct of the defendant H
was in accord with a practice accepted at that time as proper by
a responsible body of medical opinion.

I
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 253

A [59] The question before the High Court of Australia was not
whether the defendant’s conduct accorded with the practice of
the medical profession or some parts of it, but whether it
conformed to the standard of reasonable care demanded by the
law. That was the question for the court, and the duty of deciding
B it could not be delegated to any profession or group in the
community.

[60] In Malaysia, the Bolam principle has been applied extensively

by the courts in medical negligent cases when determining the
C standard of care. Such cases include:

(1) Swamy v. Matthews [1967] 1 MLJ 142 and [1968] 1 MLJ

138.

(2) Chin Keow v. Government of Malaysia and Another [1967] 2 MLJ

D 45.
(3) Elizabeth Choo v. Government of Malaysia [1970] 2 MLJ 171.

(4) Kow Nam Seng v. Nagamah & Ors [1982] 1 MLJ 128.
E [61] In the last mentioned case, the appellant applied a complete
plaster case to the leg of the 2nd respondent and due to lack of
proper skill and care in the application of the cast, caused
inadequate blood circulation to the leg, that led to gangrene,
necessitating the amputation of the 2nd respondent’s leg. The 2nd
F respondent claimed damages against the appellant, 3rd respondent
and the Government. The appellant admitted liability as regards
the road accident but denied it as regards the amputation. The
trial judge absolved the medical officer and the Government from
any blame and held the appellant solely to blame. Salleh Abas FJ
G in delivering judgment for the Federal Court said at p. 130:
There may be differences of opinion as to the types of plaster
casts to be applied in the treatment of the type of injuries
sustained by the respondent, but the choice of a treatment which
is the standard medical practice is not by itself a negligence,
H
Bolam v. Friern Hospital Management Committee [1957]2 All ER
118 and Elizabeth Choo v. Government of Malaysia [1970] 2 MLJ
171.

I
254 Current Law Journal [2007] 1 CLJ

[62] In Asiah bte Kamsah v. Dr Rajinder Singh & Ors [2001] 4 A

CLJ 269, the plaintiff delivered her second child on 10 October
1988 at the Telok Intan District Hospital. Due to suspicion of
foetus distress, she underwent a lower section caesarian operation
done under general anaesthesia. Unfortunately she did not recover
from the operation and suffered permanent irreversible brain B
damage. The plaintiff claimed damages against the defendants. In
deciding whether the doctor and the anaesthetist were negligent,
the court relied on the Bolam principle. James Foong J (as he then
was) concluded as follows at p. 272 of the report.
C
… I find no evidence to support a finding that this doctor was
negligent in this surgery going by the test set out in the
established case of Bolam v. Friern Hospital Management Committee
[1957] 2 All ER 118. …

[63] Later at p. 278 of the same report, the learned judge made D
the following finding as against the second doctor sued in that
action.
… I find the second defendant is guilty of negligence since he did
not act in accordance with the practice accepted as proper by a E
responsible body of medical men skilled in this particular art – a
test as set forth in Bolam’s case.

[64] Later in the same year, the court in Har Sai Hong & Anor
v. University Hospital & Anor [2001] 8 CLJ 208, applied the Bolam
principle in deciding whether the doctor was negligent in handling F
the birth of the 2nd plaintiff’s child.

[65] Following the decision of the Rogers’ case in 1992,

conflicting judgments have been delivered in our courts over the
preference and application of the Rogers v. Whitaker test to the G
Bolam test.

[66] In Liew Sin Kiong v. Dr Sharon DM Paulraj [1996] 2 CLJ

995 the plaintiff sued the defendant for aggravated or punitive
damages for negligence pertaining to the operation of his right eye
H
which was lost to post-operative infection. The plaintiff also alleged
that a Seton procedure, which the plaintiff’s 1st doctor had
recommended should have been carried out, and not a repeat
trabeculectomy which the defendant had performed.
I
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 255

A [67] Ian Chin J followed Sidaway and found that the plaintiff had
failed to prove that the defendant had not acted in accordance
with the standards of a competent ophthalmologist. The defendant
was held not liable and in so deciding, the learned judge made the
following remarks at pp. 1011-1012 of the report.
B
I am of the view that the defendant had treaded on well trodden
path and she cannot be said to be guilty of negligence (Bolam v.
Friern Hospital Management Committee [1957] 2 All ER 118, HL).
Put in another way, the plaintiff has failed to prove that the
defendant did what no skilled ophthalmologist would do (Hunter
C v. Hanley [1955] SC 20, Elizabeth Choo v. Government of Malaysia
& Anor [1970] 2 MLJ 171.

[68] The Rogers v. Whitaker test was fully endorsed in Malaysia

for the first time in the case of Kamalam a/p Raman & Ors v.
D Eastern Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estate, Ulu
Tiram, Johore & Anor [1997] 5 CLJ 250. The brief facts in this
case are that the the late Mr Dinasan a/l Padmanbathan, the
deceased, who was employed by the 1st defendant at the time of
his death, was suffering from hypertension. He complained of
E giddiness and fits and fainted at work. He was then attended by
the defendant’s doctor who examined him and prescribed
medication and subsequently discharged him. He was further
examined by the defendant’s doctor on two other occasions. A
day after his last examination the deceased was admitted to the
F Kluang Hospital as a result of giddiness and fits. The deceased
died at the Kluang Hospital the day after.

[69] Richard Talalla J, at p. 261 of his judgment had this to say.

The law applicable in this case and which binds me is to be
G found in the majority decision of Barakbah LP in the Federal
Court case of Swamy v. Matthews & Anor [1968] 1 MLJ 138 at
pp 139 and 140 where it was stated:

A man or a woman who practices a profession is bound to

exercise the care and skill of an ordinary competent
H practitioner in that profession – be it the profession of an
accountant, a banker, a doctor, a solicitor or otherwise.

[70] Further at p. 263 His Lordship went on to say:

... that the current state of the law, by way of elaboration may
I
be found in the decision of the High Court of Australia given in
Christoper Rogers v. Whitaker [1992] 175 CLR 479.
256 Current Law Journal [2007] 1 CLJ

[71] Finally at p. 267 His Lordship concluded as follows. A

For my part I see Bolam’s case and that of Elizabeth Choo being
referred to by the learned judge not for a proposition that there
being differences of opinion as to treatment, choice of a treatment
which is the standard medical practice is not itself negligence. I
B
do not see the learned judge as having addressed himself to the
Bolam principle and upon doing so applying it. Accordingly I do
not find myself by reference to Kow’s case being fettered by the
Bolam principle but on the contrary bound by the ruling of Salleh
Abas FJ, set out above which ruling corresponds with the ruling
by the then Lord President in Swamy’s case and I propose to C
adopt by way of elaboration of those rulings the abovementioned
dicta extracted from the decision in the Rogers’ case. I should
emphazise that while due regards will be had to the evidence of
medical experts, I do not accept myself as being restricted by the
establishment in evidence of a practice accepted as proper by a
D
responsible body of medical men skilled in that particular art to
finding a doctor is not guilty of negligence if he has acted in
accordance with that practice. In short I am not bound by the
Bolam principle. Rather do I see the judicial function in this case
as one to be exercised as in any other case of negligence,
unshackled, on the ordinary principles of the law of negligence E
and the overall evidence.

[72] Rogers v. Whitaker was again applied in the case of Tan Ah

Kau v. The Government of Malaysia [1997] 2 CLJ Supp 168. In
this case, the servant and/or agent of the defendant carried out a
F
surgical operation on the plaintiff who had a history of an injury
to his back caused by a piece of wood. The provisional diagnosis
was that of a prolapsed disc. An orthopedic surgeon examined the
plaintiff and made a provisional diagnosis of intra spinal tumor at
the level of the thoracic vertebra D11 and D12. After numerous
G
tests the cause of the tumor was ascertained as low grade
astrocytoma. He was completely paralysed waist down. The
plaintiff sought damages from the defendant for the alleged
negligence and/or breach of professional duties.

[73] In applying the Rogers v. Whitaker test, Low Hop Bing, J (as H
he then was) arrived at the following conclusion at p. 187 of his
judgment.

I
 Foo Fio Na v.
[2007] 1 CLJ Dr Soo Fook Mun & Anor 257

A In the instant case, where the risk of paralysis was very real,
more so than the tumor was intramedullary, it was absolutely
essential for the attending surgeon such as DW1 or any doctor
assisting him to warn the patient of the foreseeable risk of even a
finding of intramedullary tumor.
B
[74] Finally we make reference to Michael Jones’ book on Medical
Negligence [1996] edition at p. 95 that seems to suggest that there
is a distinction between the test of negligence based on the
reasonable competent man and that of the ordinary skilled man.
The former makes it clear that negligence is concerned with the
C
departures from what ought to have been done in the
circumstances which is measured by reference to a hypothetical
‘reasonable doctor’ and the latter places considerable emphasis on
the standards which are in fact adopted by the profession. He
emphasizes that the point is for the court to determine what the
D
reasonable doctor would have done, not the profession. What the
profession does in a given situation will be an important indicator
of what ought to have been done, but it should not necessarily
be determinative. In the final analysis the court should set the
standard of care in negligence, drawing upon the evidence
E
presented. The Bolam test fails to make this important distinction
between the reasonable competent doctor and the ordinary skilled
doctor.

[75] In Blenkiron v. Great Central Gas Consumers’ Co [1860] 2 F

F & F 437, Cockburn CJ, said.
General practice has always been taken into account in determining
the standard of care, but it is not conclusive because ‘no one can
claim to be excused for want of care because others are careless
as himself’. … Indeed it is not so much the universal behaviour
G of mankind in a particular field to which the law gives weight, as
the standard of conduct whether uniformly followed or not, which
is generally accepted as correct.

[76] In Hajgato v. London Health Association [1982] 36 OR (2d)

H 669, an action in negligence in respect of personal injuries
sustained during post-operative case, Callaghan J, at p. 693 of his
judgment expressed his concern in the following manner.

I
258 Current Law Journal [2007] 1 CLJ

In my view however, a court has a right to strike down A

substandard approved practices when common sense dictates such
a result. No profession is above the law and the courts on behalf
of the public have a critical role to play in monitoring and
precipitating changes where required in professional standards.
B
[77] In the Irish case of Best v. Wellcome Foundation Ltd [1994] 5
Med LR 81, Finlay CJ expressed the same concern and defined
the “function which a Court can and must perform in the trial of
a case in order to acquire a just result, is to apply common sense
and a careful understanding of the logical and likelihood of events
C
to conflicting opinions and conflicting theories concerning a matter
of this kind”.

[78] Therefore there is a need for members of the medical

profession to stand up to the wrong doings, if any, as is the case
of professionals in other professions. In so doing people involved D
in medical negligence cases would be able to obtain better
professional advice and that the courts would be appraised with
evidence that would assist them in their deliberations. On this
basis we are of the view that the Rogers v. Whitaker test would
be a more appropriate and a viable test of this millennium then the E
Bolam test. To borrow a quote from Lord Woolfe’s inaugural
lecture in the new Provost Series, delivered in London in 2001,
the phrase “Doctor knows best” should now be followed by the
qualifying words “if he acts reasonably and logically and gets his
facts right”. F

[79] On that finding we answer the question posed to us in the

negative and order that this appeal is allowed with costs here, in
the Court of Appeal and in the High Court to be borne by the
respondents and the orders of the High Court on quantum are to G
be restored. The deposit is to be refunded to the appellant.
[80] Finally we wish to add that this judgment is delivered
pursuant to s. 78(1) of the Courts of Judicature Act 1964 as the
Chairman of the panel has since retired.
H