TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………………1

INDEX OF AUTHORITIES………………………………………………………2, 3, 4, 5

TORT PROBLEM BASED LEARNING: QUESTION………………..…………………6

PLEADINGS OF THE APPELLANT

I. DR.HARIS WAS NEGLIGENT FOR NOT SUSPECTING A TESTICULAR

TORSION AND REFERING AMIN TO AN UROLOGIST, RESULTING IN

HIS DEATH………………………………………………………………………7

A. Dr. Haris owed Amin a duty of care as his doctor……………………..7

B. Dr.Haris breached that duty of care owed to Amin……………………8

1. The standard of care owed by a General Practitioner ..………………..8

2. Dr.Haris has Breached that Standard of Care ………………………...10

C. The breach of that duty of care by Dr.Haris resulted in Amin’s

death..........................................................................................................11

1. Causation in Fact ……………………………………………………..11

2. The death of Amin was reasonably foreseeable ……………………...12

3. Egg-Shell Rule ……………………………………………………….13

4. The defence of contributory negligence can’t be used by Dr.Haris ….14

D. Compensation…………………………………………………………...15

PLEADINGS OF THE RESPONDENT

I. DR. HARIS WAS NOT NEGLIGENT FOR NOT DIAGNOSING

TESTICULAR TORSION……………………………………………………..16

A. Dr. Haris owed Amin a duty of care as a doctor, general practitioner

B. Dr. Haris did not breach the standard of care………………………...16

1. Dr Haris acted in accordance to accepted current medical practice ….16

2. Dr Haris did not breach the standard of care in duty to diagnose and

treat…………………………………………………………………...17

C. Amin’s death was not caused by the misdiagnosis of Dr.Haris…...…18

1. Lack of Causation in Fact …………………………………………….18

(i) Low probability of testicular torsion causing death to a person

in a short period of time……………………………………...19

2. There is a break in the chain of causation by Amin and Puan Julia ….20

3. The death of Amin due to testicular torsion is not reasonably

foreseeable by Dr Harris……………………………………………...21

II. ALTERNATIVE ARGUMENT: AMIN HAS CONTRIBUTED

PARTIALLY TO HIS OWN DEATH DUE TO HIS NEGLIGENT ACT….23

A. Law of contributory negligence as defence in Malaysia………….......23

B. Elements of contributory negligence…………………………………..23

1. Claimant’s ‘negligence’ must be a contributory factor ………….24

2. The loss suffered by Amin is reasonably foreseeable …………...25

BIBLIOGRAPHY………………………………………………………………..27, 28, 29

ANNEX I (APPELLANT)

ANNEX II (RESPONDENT)

2

INDEX OF AUTHORITIES

STATUTES

Civil Law Act 1956………………………………………………………………………23

CASES

Anns and Others v London Borough of Merton [1978] AC 728……………………….…7

Barnett v Chealse & Kensington Hospital Management Committee [1969] 1 QB 428….11

Bolam v Friern Hospital Management Committee [1957] 2 ALL ER 118……………..8, 9

Bolitho v City & Hackney Health Authority (1997) 4 All ER 771………………………16

Bradford v Robinson Rentals Ltd [1967] 1 All ER 267………………………………….13

Caparo Industries v Dickman and others [1990] 1 All ER 568……………………………7

Capps v Miller [1989] 2 All ER 333…………………………………………………......24

Chelliah A/L Manickam & Anor v Kerajaan Malaysia (1997) 2 AMR 1856……………7

Chin Keow v Government of Malaysia & Anor [1967] 2 MLJ 45……………………8, 17

Cork v Kirby Maclean Ltd [1952] 2 All ER 402…………………………………….11, 19

Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291……………………………...14

Defreitas v O’Brien and Connolly (1995) 6 Med LR.108 page 115……………………..16

Donoghue v Stevenson [1932] AC 562……………………………………………………7

Doughty v. Turner Manufacturing Co. Ltd [1964] I QB 518…………………………….22

Dulieu v White & Sons. Divisional Court, [1901] 2 KB 669……………………………14

3

Elizabeth Choo v Government of Malaysia & Anor [1970] 2 MLJ 171…………………..9

Estate of Jeannette Tranor v Bloomsburg Hospital, 913 F.Supp. 388…………………...10

F v R [1983] 33 SASR 189………………………………………………………………..9

Foo Fio Na v Dr. Soo Fook Mun [2007] 1 MLJ 593……………………………….…9, 16

Froom v Butcher [1976] QB 286………………………………………………………...24

Gordon v Wilson (1992) 3 Med LR401………………………………………………….18

Government of Malaysia & Ors v Jumat Bin Mahmud & Anor [1977] 2 MLJ 103……13

Hunter v Hanley (1955) SLT 213………………………………………………………...17

Hutchinson v. Leeds Health Authority (2000) unreported……………………………….22

Jaswant Singh v Central Electricity Board and Anor [1967] 1 MLJ 272………………...13

Jones v Livox Quarries LD [1952] 2 QB 608……………………………………14, 23, 25

Kamalam a/p Raman & Ors v Eastern Plantation Agency Sdn Bhd & Anor [1996] 4 MLJ

674…………………………………………………………………………………………9

Kow Nan Seng v Nagamah & Ors [1982] 1 MLJ 128…………………………………….9

Maynard v West Midlands Regional Health Authority [1984]1 WLR 634……………...17

Mohd Zukhairi Abd Ghapor v Quek Chiam Kee [2004] 1 MLJ 6……………………….23

O’Connell v Jackson [1972] 1 QB 270…………………………………………………24

Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Co Ltd, [1961] AC

388................................................................................................................................13, 21

R v Bateman (1925) All ER Rep 45…………………………………………………...8, 164

R v Blaue [1975] 3 All ER 446…………………………………………………………..14

Re Polemis (1921) 3 KB 560…………………………………………………………….21

Robitaille v Vancouver Hockey Club Ltd (1981) 124 D.L.R.(3d) 228…………………..23

Roe v Minister of Health & Anor (1954) 2 All ER 131……………………………….…16

Rogers v Whitaker [1992] 175 CLR 479………………………………………………….9

Sadler v Henry (1954) 1 BMJ 1331……………………………………………………...18

Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER………………………….9

Sivakumaran & Ors v Yu Pan & Anor [1995] 1 MLJ 12…………………………….13, 14

Smith v Leech Brain & Co., LTD and Anor., [1962] 2 QB 405…………………………14

Swamy v Mathews (1968) 1 MLJ 138…………………………………………………...18

The Oropesa (1943) P32………………………………………………………………….20

Uniphone Sdn Bhd v Chin Boon Lit & Anor [1998] 6 MLJ 441………………………….7

Whitehouse v Jordan [1980] 1 All ER 650………………………………………………..8

Wilsher v Essex Area Health Authority [1988] AC 1074……………………………......19

5

TORT PROBLEM BASED LEARNING: THE QUESTION

Amin was playing with his friends at the football field on one Sunday evening. During the

play, he suffered pains at his groin in an attempt to intercept the ball. He went home

limping in agony. His mother, Pn. Julia took him to the hospital immediately and was

attended by Dr Harris, a general practitioner. He applied some ointment on his stomach

and groin and assured Amin and his mother that it is just a slight bruise caused by the

ball. They went home with some antibiotics and ointment to be applied on the concerned

area.

Next day, Amin felt fine and went to the park to play football with his friends. The same

night, Amin complained of severe pain in his testicle to Pn Julia. She found that the bruise

has subsided and there was no further injury or bruise found anywhere else. She gave

Amin a warm bath and his condition changed for the worse. Amin died soon after. It was

found that Amin had a twised testicle also known as testicle torsion caused by the

incident in the football field. Puan Julia planned to sue Dr Harris.

6

PLEADINGS FOR CLAIMANT

I. DR.HARIS WAS NEGLIGENT FOR NOT SUSPECTING A TESTICULAR

TORSION AND REFERING AMIN TO AN UROLOGIST, RESULTING IN HIS

DEATH.

A. Dr. Haris owed Amin a duty of care as his doctor.

The existence of duty of care was previously determined using the ‘neighbour

principle’ 1 and the ‘Ann’s Test’,2 but finally the ‘Caparo’s Test’ 3 was used as the

determining test for the existence of duty of care. In Malaysia, the test used is the

‘Caparo’s Test’ as stated by Kamalanathan Ratnam J. in the case of Uniphone Sdn

Bhd v Chin Boon Lit & Anor.4 In our case, Dr. Haris is a professional (general

practitioner) while Amin was his patient. When a doctor is consulted by a patient, the

doctor automatically assumes a duty of care.5 It goes without saying that general

practitioners (hereinafter referred to as GP) owe a duty of care to everyone on their

patience list.6 Amin and Dr.Haris shared a direct and close relationship of proximity

which was a doctor-patient relationship.7 Therefore it can be concluded clearly, that a

1Donoghue v Stevenson [1932] AC 562, House of Lords, per Lord Atkin, “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”2 Anns and others v London Borough of Merton [1978] AC 728, House of Lords, per Lord Wilberforce, “ 1. There was sufficient relationship of proximity between plaintiff and defendant and, 2. Court has to examine whether the consideration raised would reduce the scope of duty.”3 Caparo Industries v Dickman and others [1990] 1 All ER 568, House of Lords, per Lord Bridge, “3 elements need to be proven: (1) damage caused was reasonably forseeable, (2) the plaintiff and defendant has a close and direct relationship of proximity, and (3) it is just and reasonable to impose a duty of care.”4 [1998] 6 MLJ 441, High Court, para 19, “In Caparo Industries Plc v Dickman & Ors [1990] 2 AC 605 , the House of Lords distilled the essence obtained from the earlier cited cases to establish a duty of care by interlocking three criteria for the court to consider…”5 Michael Drury, Clinical Negligence in General Practice, Radcliffe Publishing, 2000, p.185.6 Ibid.7 Chelliah A/L Manickam & Anor v Kerajaan Malaysia (1997) 2 AMR 1856, High Court, per Jeffrey Tan J., p.1859, “Doctors and members of other professions and callings must, therefore, exercise the standard of skill which is usual in their profession or calling, and it is no defence that they acted to the best of their skill if that falls below the required standard.”

7

professional does owe a duty of care to his patient, as per Lord Hewart CJ in R v

Bateman.8

B. Dr.Haris breached that duty of care owed to Amin

1. The standard of care owed by a General Practitioner

The standard of care that is demanded from a professional individual is higher

than the ordinary man on the street.9 The primary question is whether in all circumstances

the defendant acted with the skill and competence to be expected from a person

undertaking his particular activity and professing his specific skill.10

The precedent case for medical negligence is Bolam v Friern Hospital

Management Committee11. Mc Nair J in his directing to the jury stated that if a medical

man who has taken step as what a reasonable competent medical man will take at the

time, he will not be held liable for any mishaps.12 This principle was approved in the case

of Whitehouse v Jordan13 where it was held that the doctor was not liable based on the

opinion of other competent medical men.14

The Bolam’s test was followed in Malaysian cases as well. In the case of Chin

Keow v Government of Malaysia & Anor,15 the Privy Council agreed with the trial judge

8 (1925) All ER Rep 45, “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 patient to use due caution in undertaking the treatment.”9Norchaya Talib, Law of Torts in Malaysia, 3rd edition, Sweet & Maxwell Asia, 2003, p.149.10 John Murphy, Street on Torts, 12th edition, Oxford University Press, 2007, p.115,116.11 [1957] 2 ALL ER 118, Queen’s Bench Division, McNair J.12 Ibid, p.121, “In the case of a medical man negligence means failure to act in accordance with the standards of a reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent.”13 [1980] 1 All ER 650, Court of Appeal, Civil Division.14 Ibid, per Lord Denning MR, “The great preponderance of opinion is that neither Mr Jordan nor the hospital were guilty of any negligence. Professor L B Strang (London), Professor J P M Tizard (Oxford), Dame Josephine Barnes

(Charing Cross Hospital) and Professor Sir John Dewhurst (London) all say so.” 15 [1967] 2 MLJ 45, Privy Council.

8

in adopting the test propounded by McNair J. in the Bolam case.16 In the case of Elizabeth

Choo v Government of Malaysia & Anor,17 Raja Azlan Shah J. applied the bolam’s test

when he stated that a professional will not be deemed to be negligent if he has taken steps

that would normally be taken by others who are in the same position.18 It was also

applied in the case of Kow Nan Seng v Nagamah & Ors.19 However, there was another

case with a different view which mostly affected the standard of care of doctors in regards

to providing information to patients rather than the treatment and diagnosing aspect. In

Rogers v Whitaker,20 the court agreed with King CJ in F v R21 and Lord Scarman in the

case of Sidaway v Bethlem Royal Hospital Governors22 and laid down the principle that a

professionals conduct must conform to the standard of reasonable care demanded by the

law, which is a question to be decided by the courts.23 This also includes diagnosis and

treatment by doctors, which the court said must be provided according to the

professional’s skill or level.24 This case was applied in Kamalam a/p Raman & Ors v

Eastern Plantation Agency Sdn Bhd & Anor,25 where Richard Talalla J. stated that

although evidence from medical experts will be taken into consideration, the courts are

not bound by them.26 This was further affirmed in the case of Foo Fio Na v Dr. Soo Fook

16 Ibid, per Sir Hugh Wooding, para 6, “ For this purpose he adopted the test, in their Lordships' opinion quite rightly, which was propounded by McNair J. in Bolam v Friern Hospital Management Committee.”17 [1970] 2 MLJ 171, OCJ Kuala Lumpur.18 Ibid, para 6.19 [1982] 1 MLJ 128, Federal Court, Salleh Abas J., para 10, “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, Bolam v Frien Hospital Committee [1957] 2 All ER 118 and Elizabeth Choo v Government of Malaysia & Anor [1970] 2 MLJ 171 .”20 [1992] 175 CLR 479, High Court of Australia.21[1983] 33 SASR 189, Supreme Court of South Australia, p.194, “The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.”22 [1985] 1 All ER 643, House of Lords, p.645-655.23 Supra, Note 20, Mason CJ.24 Ibid, “In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill.”25 [1996] 4 MLJ 674, High Court Muar.26 Ibid, p.686, “I should emphasize that while due regards will be given 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 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.”

9

Mun27, but the Federal Court also mentioned the importance of medical opinions in

deciding a medical negligence case.28

In this case, Dr.Haris is a GP and therefore the standard of care owed by him is a

standard of care owed by a reasonable competent GP. GP’s must differentiate on clinical

evidence and in the absence of full investigations those patients who may be safely

treated at home from those who need referral for secondary care.29 They undertake initial

investigations and refer those whom are in need of specialist attention.30 They must also

provide competent and appropriate advice.31 A GP can also be liable when he has failed to

refer a patient to the correct specialist.32 Testicular torsion is a surgical emergency and it

occurs mostly in adolescent boys.33 Symptoms of testicular torsion includes sudden or

severe pain in one testicle, swelling of the scrotum, nausea and vomiting, abdominal pain,

a testicle that’s positioned higher than normal or at an odd angle or sudden testicle pain

that goes away without treatment.34 Unless the clinician is 100% sure it not testicular

torsion, it should be considered an emergency and arrangements for a surgical exploration

should be made.35.

27 [2007] 1 MLJ 593, Federal Court, per Siti Norma Yaakob J., p.612, “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 Bolam Test.”28 Ibid, “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 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.”29 John Garfield and Christopher J. Earl, Medical Negligence: The Cranium, Spine and Nervous System, Wiley-Blackwell, 1999, p.66.30 Medical Case Notes Assessment Ltd, Medical Negligence Expert Reports for the UK and Ireland, Kent, http://www.medicalcasenotes.co.uk/General_Practice.htm.31 Michael Drury, Clinical Negligence in General Practice, Radcliffe Publishing, 2000, p.185.32 F of Jeannette Tranor v Bloomsburg Hospital, 913 F.Supp. 388 (M.D. PA. March 15, 1999), District Court, McClure District Judge.33 Dr.Damian C . Crowther, General Practice Notebook, The Cambridge Institute of Medical Research, Cambridge.34 Erik P Castle M.D, Mayo Foundation for Medical Education and Research.35 Kaplan, Kaplan Medical USMLE Step 3 Qbook, Kaplan Publishing, 4th edition, 2008, p.592.

10

2. Dr.Haris has Breached that Standard of Care.

Delay in diagnosis of a serious condition and referral to a specialist is one of the

most common clinical areas leading to a claim of negligence.36 A GP should consider the

possibility of torsion in any adolescent with a painful or swollen scrotum.37 Amin had two

of the symptoms which are pain at the groin and at the abdomen. Dr.Haris should have

immediately referred Amin to an urologist for confirmation and an emergency operation.

However he failed that standard of care by treating it as a normal bruise.

C. The breach of that duty of care by Dr.Haris resulted in Amin’s death.

1. Causation in Fact.

A ‘But for test’ of "BUT FOR the existence of A, would B have occurred?" can be

carried out to justify Dr. Harris’s actions. This test can be first seen in the case of Cork v

Kirby Maclean Ltd.38 It was then applied in Barnett v Chelsea & Kensington Hospital

Management Committee,39 where it was held that the deceased would have died even if

the defendant’s did not commit negligence.40

Testicular torsion is a surgical emergency which needs immediate attention.41 If

Amin was treated within 6 hours, he would have a 90% chance to save his testicles.42

However if it left to a period of above 24 hours, the chances of saving the testicles is next

to none.43 When a patient presents himself with abdominal pain only and not scrotal pain,

36 Medical Case Notes Assessment Ltd, Medical Negligence Expert Reports for the UK and Ireland, Kent, http://www.medicalcasenotes.co.uk/General_Practice.htm.37 Sara Bird, Medicolegal Adviser at MDA National, Australian Family Physician, Volume 32, No.7, 2003, p.527.38 [1952] 2 All ER 402, Court of Appeal, Lord Denning, “If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage.”39 [1969] 1 QB 428, Queen’s Bench Division.40 Ibid, per Nield J., “For these reasons, I find that the plaintiff has failed to establish, on the grounds of probability, that

the defendants' negligence caused the death of the deceased.”41 Wampler SM, Llanes M, Common Scrotal and Testicular Problems, Prim Care 2010, Department of Family Medicine, University of Michigan; Timothy J Rupp (MD, FACEP, FAAEM), Testicular Torsion in Emergency Medicine, Southwestern Medical Centre, University of Texas.42 Ibid.43 Ibid.

11

then delay and consequent orchidectomy44 are likely. It is essential that general

practitioners know that patients with testicular torsion may have no scrotal pain at all, but

only pain in the abdomen. There had been many cases in which one feels abdominal pain

initially but no scrotal pain but later develops testicular torsion and in cases like this,

patients normally ends up having the said testicle excised.45 Williamson46 reported that

11% of patients had no scrotal pain, 39% had some pain in the lower abdomen and 19%

experienced inguinal pain. Cass47 stated that 12.5% of 49 patients experienced only

abdominal or inguinal pain and 52.5% had scrotal pain with some radiation to these

regions. Pain initially confined to the abdomen was noted by Greaney48 in 11% of 19

cases. Although testicular torsion occurs in all age groups, torsion is most common in

adolescents. Testicular torsion causes a massive loss of blood flow to the testicle.49 When

blood flow to an internal organ is cut off, it can cause internal gangrene.50 In a study of

testicular torsion, all the patients who were presented beyond 48 hours of onset of

symptoms had their affected testicles non-viable and 58 of those patients who were

presented, 20(34.5%) had gangrenous testicles.51 Gangrene is serious and potentially life

threatening condition that arises when a considerable mass of body tissues dies.52

Amin had already seeked medical advice from Dr. Harris after he felt pains to his

groin area but yet Dr.Haris did not take extra measures to detect the possibility of

testicular torsion. If Dr. Haris had done his job and referred Amin to a specialist, an

emergency surgery could have been done to save his testicle. This in turn would have

44 The removal of the testicles. The penis and the scrotum, the pouch of skin that holds the testicles, are left intact.45 C.R.R. Corbett, St.Baer, B.M. Grimmett, Journal of the Royal College of General Practitioners, January 1986.46 Williamson RCN, Torsion of the Testis and Allied Conditions, British Journal of Surgery, 1976, Volume 63, Issue 6, p.465-476.47 Cass AS, Cass BP, Veeraraghavan K, Immediate Exploration of the Unilateral Acute Scrotum in Young Male Subjects, J Urol 1980, 124: 829-832.48 Greaney MG, Torsion of the Testis: A Review of 22 cases, British Journal of Surgey, 1975, Volume 62, Issue 1, p.57-58.49 Clifford Spanierman MD, Testicular Torsion, 2007, Lutheral General Hospital of Oak Brook.50 Causes of Gangrene, Mayo Clinic Staff, Mayo Clinic.51Ibingira C B R., Makerere Management of Testicular Torsion in Mulago Hospital over a 5-Year Period, University Medical School, Uganda.52 Carol Porth, Essentials of Pathophysiology, Lippincott Williams & Wilkins, 2007, p.41.

12

prevented any sort of infection and saved Amin’s life. Amin would not have passed away

but for Dr.Haris’s negligence.

2. The death of Amin was reasonably foreseeable.

A defendant will only be liable if it is reasonably foreseeable that his conduct will

result in some damage to the plaintiff. There have been two competing views of the test

of remoteness.53 The test being used now was formulated in The Wagon Mound,54 where

the test used was the reasonable foresight test.55 The test in The Wagon Mound is a new

approach to issue of remoteness. This test was approved and used in Malaysia in the case

of Jaswant Singh v Central Electricity Board and Anor56 and Government of Malaysia &

Ors v Jumat Bin Mahmud & Anor57. What must be foreseeable is the type of damage, not

the nature of the damage,58 or even the extent of the damage.59

The risk of Amin contacting a testicular torsion is rather high as it occurs mostly

in adolescents. As said earlier, GP’s should know that a patient with testicular torsion

may have no scrotal pain at all, but only pain in the abdomen.60 Based on the medical

opinions and statistics given earlier, there is high chance that the testicle will die if

surgery is not done within 12 hours. The consequence of Amin suffering a testicular

53 Sir Henry Percy Winfield, John Anthony Jolowicz, Tom Ellis Lewis, Winfield on Tort, 7th edition, Sweet and Maxwell, p.207.54 Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Co Ltd, [1961] AC 388, Judicial Committee.55 Ibid, per Viscount Simonds, “ But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done…”56 [1967] 1 MLJ 272, OCJ Kuala Lumpur, Gill J., “The last question which I have to consider is whether the damage suffered by the plaintiff was a reasonably foreseeable consequence of the defendants' negligence.”57 [1977] 2 MLJ 103, Federal Court, Raja Azlan Shah J., “Since that case the principle that the damage sustained must not only be caused by the wrongful act, but must be damage of a class or character reasonably foreseeable as a possible result of that act is now firmly established.”58 Bradford v Robinson Rentals Ltd, [1967] 1 All ER 267, Devon Assizes, per Rees J., “The question which I have to consider is whether the plaintiff has established that the injury to his health by "frostbite" (and I use the lay term for convenience), which is admittedly unusual in this country, is nevertheless of the type and kind of injury which was reasonably foreseeable. The law does not require that the precise nature of the injury must be reasonably foreseeable before liability for its consequences is attributed.”59 Sivakumaran & Ors v Yu Pan & Anor, [1995] 1 MLJ 12, High Court Shah Alam, KC Vohrah J., quoting The Wagon

Mound, “The Judicial Committee were not, I think, saying that a man is only liable for the extent of damage which he could anticipate, always assuming the type of injury could have been anticipated.”60 C.R.R. Corbett, St.Baer, B.M. Grimmett, Journal of the Royal College of General Practitioners, January 1986.

13

torsion is reasonably foreseeable to any doctor. The fact that it lead to his death is

irrelevant as the type of damage was foreseeable.

3. Egg-Shell Rule

If one does something tortuous that results in another’s injury, then this rule is

applied. The general maxim is that the defendant must "take their victims as they find

them". Like for example if one is stabbed and refused to partake in blood transfusion and

dies, the assailant would still be held liable.61 Also if an employee comes into contact with

a dangerous molten metal and dies soon after, the employers would be held liable as long

as the initial injury was foreseeable.62 Foresee ability of the action is important as for

example, committing suicide after suffering injuries from an accident is said to be

unforeseeable.63 If one suffers from nervous shock because a vehicle crashes through the

wall of the premise then the driver of the vehicle will be held liable.64

In this case, Amin came to Dr.Haris with a testicular torsion. His failure to refer

Amin to specialist resulted in Amin’s death due to the testicular torsion not being treated

immediately. Therefore Dr.Haris is still liable for the full extent of the damage.

4. The defence of contributory negligence can’t be used by Dr.Haris.

Contributory negligence requires the element of fault65 and a standard of care.

According to the case of Jones v Livox Quarries LD66, the Court of Appeal held that the

plaintiff had a standard of care that he should have followed if he wanted to prevent the

61 R v Blaue, [1975] 3 All ER 446.62 Smith v Leech Brain & Co., LTD and Anor., [1962] 2 QB 405, Queens Bench Division.63 Sivakumaran & Ors v Yu Pan & Anor, [1995] 1 MLJ 12.64 Dulieu v White & Sons. Divisional Court, [1901] 2 KB 669, Kennedy J, “It may be admitted that the plaintiff in this American case…. if she had not been pregnant at the time; …. But what does that fact matter? If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.”65 Davies v Swan Motor Co (Swansea) Ltd, [1949] 2 KB 291 Court of Appeal, Bucknill LJ, “The doctrine of contributory negligence cannot… be based upon a breach of duty to the negligent defendant. It is difficult to suppose that a person owes a duty to anyone to preserve his own property. He may not recover if he could reasonably have avoided the consequences of the defendant's negligence."66[1952] 2 QB 608, Court of Appeal.

14

eventual death. 67 So the act of riding upon one of these vehicles at the risk of a man

falling off, or the danger of his becoming trapped in some part of the machine was clearly

prohibited by the employers in the first place shows the lack of care.68 With that it should

be made clear that both Amin and Pn. Julia had no part in contributing to Amin’s death.

Pn. Julia’s action of giving Amin a warm bath or Amin’s action of playing football after

consulting the doctor cannot be said to have contributed to the death as they lack the

elements of fault and standard of care. Since Dr.Haris advised them it was only a bruise,

giving a warm bath and playing football are normal acts if someone suffered a bruise.

They could have contributed to the damage only if Dr.Haris had not been negligent and

informed Amin on the true nature of his injury, but unfortunately this was not the case.

D. Compensation.

The best compensation for a case of tort involving testicular torsion would be of

monetary and could rise to an amount of £13,000 in damages if it involves excision of

testicle.69. In some cases, if the general practitioner had failed to refer the patient to an

urologist that could have helped salvage the testis, the general practitioner would be

charged with $50,000 Australian Dollars worth of damages inclusive of legal costs.70 So if

death were to occur instead of an excision of testicle then the damages that would be

faced by Dr. Haris, who was the general practitioner that failed to refer Amin to an

urologist for treatment, would be much higher than the amounts mentioned above. The

Claimant submits that the honorable court orders the Respondent to pay the Claimant RM

1,000,000 as monetary compensation for the death of Amin.

67 Ibid, per Denning LJ, “If a man carelessly rides on a vehicle in a dangerous position, and subsequently there is a collision in which his injuries are made worse by reason of his position than they otherwise would have been, then his damage… and the damages recoverable by him fall to be reduced accordingly.”68 Ibid, per Singleton LJ, “It was submitted to us that the prohibition against riding upon one of these vehicles… The plaintiff, in riding on the traxcavator, was disobeying the orders of his employers. In so doing he was exposing himself to danger.”69 JMW: Manchester Solicitors; Testicular Torsion in Compensation.70 Australian Family Physician, Vol. 32, No. 7, July 2003, Pg 528.

15

PLEADINGS FOR RESPONDENT

I DR. HARIS WAS NOT NEGLIGENT FOR NOT DIAGNOSING

TESTICULAR TORSION

A. Dr. Haris owed Amin a duty of care as a doctor, general practitioner.

Referring to R v Bateman71, per Lord Hewart CJ,

"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 patient to use due caution in undertaking the treatment.”.

Thus Dr. Haris concedes that Dr. Haris owes Amin a duty of care as a doctor.

B. Dr. Haris did not breach the standard of care72.

1. Dr Haris acted in accordance to accepted current 73 medical practice.

Accepted practice in this context means a practice accepted as proper by a responsible

body of medical opinion74. If the doctor complied, there is strong evidence that the doctor

71 (1925) All ER Rep 4572 Foo Fio Na v Dr Soo Fook Mun & Assunta Hospital (2007) 1 MLJ 593, Bolam v Friern Hospital Management Committee (1957) 2 All ER 11873 Roe v Minister of Health & Anor (1954) 2 All ER 131Denning LJ,

“We must not look at the 1947 incident with 1954 spectacles.”74 Defreitas v O’Brien and Connolly (1995) 6 Med LR.108 page 115Otton LJ,

16

is not negligent regardless of whether there is more than one accepted practice by other

bodies of opinion. However, the judges may scrutinise medical opinions75 and medical

expert evidence may be rejected by the courts if they do not stand up to analysis76.

There are multiple reasons for acute testicular pain including inflammatory reasons

due to trauma. The first cause of trauma is aggression with projectiles and forceful

objects.77 Dr. Haris is a general practitioner78 and when attending to Amin he was

informed of the incident with the ball. Thus, Dr.Haris applying ointment to the stomach

and groin of Amin is a reasonable action taking into account the circumstances of

occurrence.

“ There was evidence…. That a small number of tertiary specialist could constitute a responsible body of medical opinion… The issue whether or not to operate could not be determined by counting heads… a small number of specialist (could constitute) a responsible body (which in fact found)…the defendant’s decision justified.”75 F v R (1982) 33 SASR 189 (S.C of South Australia), page 194King CJ,

“…professions may adopt unreasonable practices… The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by law….. The ultimate questions, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.76 Bolitho v City & Hackney Health Authority (1997) 4 All ER 771, page 778Lord Browne-Wilkinson,

… 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 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 have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.

Lord Woolf MR, page 46“the judge had to make his own findings on balance of probabilities on this issue of fact in order to proceed to

the next step in answering the question of negligence or no negligence

Applied in Malaysia in the case of, Kamalam a/p Raman & Ors v Eatern Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estate Ulu Tiram, Johore & Anor (1996) 4MLJ 674Richard Talalla J,

“…. I should emphasize that while due regard will be had to the evidence of medical experts, I do not accept myslf as being restricted by the establishment in evidence of a practice accepted as proper by a responsible body of medical men skilled in that particular art to finding a doctor is not guilty of negligence if he acted in accordance with that practice. In short, I am not bound by the Bolam principle….”77 Jeanette M Potts, Genitourinary pain and inflammation : Diagnosis and Management, 2008, Humana Press, Page14578 Bent Guttorm Bentzen, Charles Bridges-Webb, Lynn Carmichael, Julio Ceitlin, Richard Feinbloom, David Metcaalf, Ian McWhinney, Kumar Rajakumar, The Role of the General Practitioner/Family Physician in Health Care Systems : A Statement from WONCA, 1991. The general practitioner functions as a generalist who accepts everyone seeking care, whereas other health providers limit, access to their services on the basis of age, sex, and/or diagnosis.

17

2. Dr Haris did not breach the standard of care in duty to diagnose and treat

A doctor is required by law to exercise the reasonable care and skill in making a

diagnosis however, a wrong diagnosis does not itself amount to negligence79 if the doctor

has observed the required standard.80

Dr. Haris had made an error of diagnosis, not amounting to negligence. There are

basic duties the doctor must execute before a reaching a final diagnosis. First, consider

the patient’s medical history and give full consideration81. Second, ask the patient relevant

questions and listen to the account of the illness. Third, in cases of doubtful diagnosis, it

is good practice to refer the patients to a specialist for further consideration.82 83

In this case, Dr Haris a general practitioner, did know of the account of the illness

as Dr.Haris assured Amin that the pain was a bruise caused by the ball. Dr.Haris did not

diagnose testicular torsion as Amin did not present the symptoms of testicular torsion84.

Amin felt uneasiness at his groin after the ball struck him whereas testicular torsion

presents itself as sudden onset of pain, waking the patient from sleep.85 Dr Haris’s

diagnosis of a slight bruise caused by the ball is based on the fact that bruises are the

effects of external violence applied to the body86 causing pain.

79 Maynard v West Midlands Regional Health Authority [1984]1 WLR 634Lord Scarman,

80 Hunter v Hanley (1955) SLT 213 page 217Lord Clyde,

“in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man is clearly not negligent merely because his conclusions differs from that of other professional men.”81 Chin Keow v Government of Malaysia (1967) 2 MLJ 4582 Gordon v Wilson (1992) 3 Med LR40183 Mason, JK & Smith M, Law and Medical Ethics, London : Buttersworth, 1994, page 20484 Nathan W Mick, Jessica Radin Peters, Daniel Egan, Eric S. Nadel, Blueprints Emergency Medicine, page 148

Common signs of testicular torsion are testicular enlargement and tenderness, erythema and swelling of scrotum, horizontal lie instead of the normal vertical orientation, elevated high-riding testis in the scrotum due to twisting and shortening of spermatic cord, ipsilateral loss of cremasteric reflex with torsion.85 John Reynard, Simon Brewster, Suzanne Biers, Oxford Handbook of Urology, 2006, Oxford University Press, University of Oxford, page 2686 Spencer Thomson, Dictionary of Domestic Medicine and Household Surgery, page 75

18

Diagnosis is the identification of a disease by means of its symptoms.87 Thus, as Amin

did not display the symptoms of testicular torsion, it is impossible for Dr. Haris to

diagnose testicular torsion. Where symptoms do not indicate the illness from which the

patient is in fact suffering, the doctor cannot be blamed for failing to identify the specific

illness.88 Hence, it is not a case of doubtful diagnosis but misdiagnosis due to lack of

symptoms.

C. Amin’s death was not caused by the misdiagnosis of Dr.Haris

1. Lack of Causation in Fact

Establishing causation is concerned with the physical connection between the

defendant’s negligence and the plaintiff’s damage.89 The plaintiff has to show that the

damage he suffered was caused by the defendant’s negligence and that in the absence of

the breach, he would not have suffered the injury.90 In medical malpractice context, the

patient must demonstrate that there was a reasonable medical probability91 that the

doctor’s negligence cause the patient’s injuries.

For Puan Julia to successfully sue Dr Harris in an action of medical negligence,

the onus is on her92 to prove that there is a factual causation between Dr Harris’s failure to

suspect testicular torsion on Amin and Amin’s death.

87 Swamy v Mathews (1968) 1 MLJ 138, page142Ong FJ,

“Diagnosis is the identification of a disease by means of its symptoms. It is apodeictic that the disease or diseases affecting a patient should be identifiable before the nature of the treatment therefore can be properly considered. “88 Sadler v Henry (1954) 1 BMJ 133189 Jones, M.A, Medical Negligence, London:Sweet & Maxwell, 1991, page 16390 Logie, JG, Proof of Causation in Medical Negligence Cases, 1988 (SLT), page 2591 Perrochet, L, Smith SJ & Colella U, Lost Chance Recovery and the Folly of Expanding Medical Malpractice Liability (1992), VolXXVII, No 3, Torts & Insurance Law Journal, page 615Reasonable medical probability means more than 50 percent chance that the negligence caused the injury.92 Wilsher v Essex Area Health Authority, [1988] AC 1074, para 7, page 12, Lord Bridge of Harwich,

“The conclusion I draw from these passages is that McGhee v. National Coal Board [1973] 1 W.L.R. 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff.”

19

To establish factual causation between Dr Harris’s alleged negligence in failing to

suspect testicular torsion during the first consult with Amin, subsequently causing his

death the next day, the ‘but for’ test93 must be applied: but for Dr Harris’s failure to

suspect testicular torsion to be suffered by Amin and referred him to a specialist

accordingly, would Amin have died the next day? The answer is no. The reasoning of this

answer is as follows.

(i) Low probability of testicular torsion causing death to a person in a short

period of time

It is absurd to say that the misdiagnosis of Dr Haris resulted in Amin’s death, as

delay in treating testicular torsion results in the loss of testicular function.94 It is highly

unlikely that testicular torsion can cause the death of a person in less than 48 hours.95

Hence, even if Dr Harris failed to suspect a case of testicular torsion early, this has no

link with Amin’s death as testicular torsion itself is not lethal in a short period of time.

Without a conclusive post mortem report presented by the appellant, it is prejudicial to Dr

Harris to conclude that Amin’s death is caused by testicular torsion which is highly

improbable in nature.

2. There is a break in the chain of causation by Amin and Puan Julia

Where the act of another person or even the plaintiff himself without which the

damage would not have occurred, intervenes between the defendant’s negligence and the

plaintiff’s damage, the court must decide whether the defendant is responsible or whether

93 Cork v Kirby Maclean, [1952] 2 All ER 402, para 3, page 6, Lord Denning,

“… we recognize that there may be many causes of a damage, and we ask: what were the causes of it? What faults were there which caused the damage?”94 American Academy of Pediatric, American College of Emergency Physicisians, APLS : Pediatric Emergency Medicine, 2007, Jones and Bartlett Publishers, United States, Page 38995 Graham, Sam D.; Keane, Thomas E; Glenn’s Urologic Surgery, p 448, 451; Puri, Prem; Hollwart, Michael; Pediatric Surgery: Diagnosis and Management, p 932;

20

the intervening act constitutes novus actus interveniens96.97 The intervening act here was

by Puan Julia, the plaintiff.

A plaintiff’s conduct if based on religious, moral, social, economic, emotional or

economic factors will not be regarded as unreasonable so as to break the chain of

causation. It must be cases of obvious disregard of care by the plaintiff that would amount

to a novus actus interveniens98.

In the present case, Amin was taken by Puan Julia to the hospital as she found him

in seething pain after being struck by the ball. He has been treated by Dr.Haris and was

sent home with the ointment and antibiotics. The next day, Amin had gone to the park to

play football with his friends again. That same night, Amin was in severe pain again and

instead of taking Amin to the hospital, she gave him a warm bath.

The law imposes obligations upon parents to secure medical treatment for their

child.99 Puan Julia failed as a parent to provide appropriate health care, for Amin. Puan

Julia did not take Amin to the hospital for the second time when he was screaming in pain

but instead Puan Julia only gave him a warm bath. This caused adverse effect on Amin

and subsequently his death.

3. The death of Amin due to testicular torsion is not reasonably foreseeable by Dr

Haris.

The principle on remoteness of damage, deals with harm which occurs in some

weird or unpredictable situations. In a system of fault liability, holding a person liable for

the unpredictable and freakish consequences of his negligence may seems unfair because

of a sense of disproportion between the fault and the harm. Other than that, in this system,

96 The Oropesa (1943) P32, page 39Lord Reid,

“….. a new cause which disturds the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.”97 Jones, M.A, Medical Negligence, page 42598 Dr. Puteri Nemie Jahn Kassim, Medical Negligence Law in Malaysia, 2003, ILBS, Malaysia page 118.99 Jo Bridgeman, Parental Responsibility, Young Children and Healthcare Law, 2007, Cambridge University Press,UK, page 91

21

which depends upon foreseeability of the damage as a test of the defendant’s breach of

duty, it may seem unfair to hold the defendant responsibility for all the damage that his

negligence has caused, even where the damage is of a different type or occurred in a

different manner from that which would normally be expected.

There are two broad approaches to the issue of remoteness. Firstly, a defendant is

liable for all direct consequences of his negligence, no matter how unusual or

unexpected.100 This approach was held to be wrong subsequently. The second approach

holds that a person is only responsible for the consequences that could reasonably have

been anticipated, even where he has undoubtedly caused the damage in question.101

Theoretically, the test of remoteness in the tort of negligence is the foreseeability

of the harm; if the damage was unforeseeable, it is too remote. The court must determine

precisely what it is that has to be foreseen, and decisions about what falls within the

realms of the foreseeable and what may legitimately be ignored in the sequence of events

have a vital bearing upon the application of the rules on remoteness. 102

The damage would have been considered to be too remote is illustrated by the

decision of the Court of Appeal in Doughty v. Turner Manufacturing Co. Ltd103. The

damage will be too remote if it is not of the same type or kind as the harm that could have

been foreseen like in the case of Hutchinson v. Leeds Health Authority104.

In this case, Dr.Haris carried out his responsibility as a general practitioner to

diagnose, treat Amin’s injuries and prescribed the medication necessary for it according

100 Re Polemis (1921) 3 KB 560101 Wagon Mound (No 1) (1961) AC 388102 Jones, Micheal,” Medical Negligence”, Sweet & Maxwell, 2003,p 436-437.103 [1964] I QB 518Fact: in which an asbestos cover was knocked into a bath of molten liquid. Shortly after, due to a chemical reaction between the asbestos and the liquid which was unforeseeable at the time, there was an eruption of the liquid which burned the claimant who was standing nearby. It was held that burning by an unforeseeable chemical eruption was not a variant of burning by splashing, which was within the foreseeable risk created by knocking the cover into the liquid.104 (2000) unreported Bennett J held that, it would also be an affront to common sense if, having established that the defendants were in breach of duty in falling to call in the surgical team to investigate a highly abnormal bowel function in a patient who was very ill, the claimant’s action failed because it was not foreseeable that the bowel perforation might occur in the posterior rectal wall rather than in some other part of the bowel.

22

to the presenting symptoms. Although Dr.Haris had misdiagnosed Amin, the diagnosis

was based on the symptoms presented. Hence, the damages are too remote by virtue that

Dr Haris cannot reasonably foresee the possibility of Amin’s death.

II ALTERNATIVE ARGUMENT: AMIN HAS CONTRIBUTED

PARTIALLY TO HIS OWN DEATH DUE TO HIS NEGLIGENT

ACT

Assuming that Dr.Harris is still found to be liable in causing Amin’s death, this

defence shall be pleaded accordingly. Contributory negligence means the failure by a

person to use reasonable care for his safety of himself or his property so that he

becomes the author of his own wrong.105

A. Law of contributory negligence as defence in Malaysia

The law providing for contributory negligence in Malaysia is as per section 12(1)

of Civil Law Act 1956106. Accordingly, this section does not absolve the defendant

from the liability of negligence completely. It merely attempt to reduce the extent of

damages that the defendant has to bear due to not only his own negligence, but also

some extent of negligence on the part of the plaintiff as well.

B. Elements of contributory negligence

In short, the gist of contributory negligence is therefore the unreasonable behavior

of the claimant with regard to his own safety which results in foreseeable damage to

himself.107 This principle can be seen in the case of Jones v Livox Quarries Ltd.108

105 Mohd Zukhairi Abd Ghapor v Quek Chiam Kee [2004] 1 MLJ 6, para 14. Per Seah SCJ 106 Section 12(1): “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court think just and equitable having regard to the Claimant’s share in responsibility for the damage.”107 Foong Nan v Sagadevan [1971] 1 MLJ 24108 [1952] 2 QB 608. Facts : Claimant disobeyed his employer’s instructions by riding on the back of a traxcavator, that was hit at the back by another vehicle causing the claimant to be injured.

23

In the case of Robitaille v Vancouver Hockey Club Ltd109, the plaintiff was a

hockey player under the club. As part of the services, the club provides medical care

to their employment and in fact players were discouraged from consulting their own

doctors. After plaintiff had suffered a minor spinal contusion, during a game, his

complaints were ignored. Had reasonable attention to be paid to his own welfare, he

would have a full medication examination immediately, his injuries would have

recovered, and he would not have played in a game in a week later in which the injury

was severely aggravated, resulting in permanent disability. Plaintiff sued hockey club,

alleging that the disability was caused by the neglect of the club to obtain proper care

and medical treatment for him. However, it was held that plaintiff was contributory

negligent to the extent of 20% in not acting reasonably to protect his own health and

well-being.

With regards of the cases illustrated, the following elements have to be proven by

the respondent in order for the defence to succeed:

1. Claimant’s ‘negligence’ must be a contributory factor 110

It is necessary for the respondent to prove that the applicant had committed a

negligent act that has contributed to his damage or injuries.111 This has always been a

factual argument, not a legal one.112 The defense will succeed if the damage sustained

by the claimant had been totally constituted by the risk he exposed himself into by

virtue of his negligent conduct.113 Examples of clear cases that used the defense of

contributory negligence include the following: a moped driver who does not wear a

crash helmet114, or simply fails to fasten it securely115, and a car passenger who does

not wear a seatbelt116.

109 (1981) 124 D.L.R.(3d) 228110John Murphy, Streets on Torts, 12th Edition, 2007, Oxford University Press, page 172111 The Liability of Railway Companies For Negligence Towards Passengers (1893) by Parsons, Albert112 John Murphy, Streets on Torts, 12th Edition, 2007, Oxford University Press, page 172113 [1952] 2 QB 608. 114 O’Connell v Jackson [1972] 1 QB 270115 Capps v Miller [1989] 2 All ER 333116 Froom v Butcher [1976] QB 286

24

Therefore, looking into the facts of the case again, Amin, have he had taken

reasonable care of himself after the accident and examination by Dr. Haris, he would

have avoided the seriousness of the condition the next day. Amin did not take another

reasonable step which is to go for further examination after the complaint. Instead,

Amin went on to play football with his friends in the park. Without proper care and

rest, his conditions worsen and lead to his death.

2. The loss suffered by Amin is reasonably foreseeable.

It is essential that the claimant’s lack of care should be a contributory factor to his

damage, and this means not only that his fault should be a cause in fact of his loss, but

that the loss is within the broad scope of the risk created by his fault.117 The case of

Jones v Livox Quarries Ltd118 illustrates this point of risk. It was held that the claimant

was contributory negligent, and affirmed that contributory negligence was applicable

to injury that was reasonably foreseeable as a consequence of the claimant’s behavior.

Thus, relating back to the case, it is reasonably foreseeable if Amin returned to the

field the next day to play right after the treatment, an injury is highly likely to be

incurred upon him. Here, the extent of the damage is irrelevant and all it has to be

proven is that some sort of injury will be the outcome of the plaintiff’s act.119 With

this, this element is proven accordingly.

Conclusively, with both elements of the defence of contributory negligence

satisfied, it can be used accordingly to reduce the amount of damages or

compensation imposed upon Dr.Harris.

Medical care to their employment and in fact players were discouraged from

consulting their own doctors. After plaintiff had suffered a minor spinal contusion,

during a game, his complaints were ignored. Had reasonable attention to be paid to his

own welfare, he would have a full medication examination immediately, his injuries

117 TORT, 18th Edition by Winfield and Jolowicz, page 368118 [1952] 2 QB 608119 Ibid

25

would have recovered, and he would not have played in a game in a week later in

which the injury was severely aggravated, resulting in permanent disability. Plaintiff

sued hockey club, alleging that the disability was caused by the neglect of the club to

obtain proper care and medical treatment for him. However, it was held that plaintiff

was contributory negligent to the extent of 20% in not acting reasonably to protect his

own health and well-being.

Relating the same principle from this case to the current case, Amin who did not

go to seek for further examination when he complained of the severe pain the next

day has contributed to his damage and injury, in this case his death. Therefore it is

proven that Dr. Haris cannot be fully liable of the damages.

26

Total Number of Words of Substance for BOTH pleadings: 4645 words

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