Case study: Aggravated damages in medical negligence

Aggravated damages refer to a specific type of compensation awarded in civil claims when the Defendant’s conduct goes beyond mere negligence or breach of duty of care and is found to be particularly egregious. These damages are meant to compensate the Plaintiff for emotional distress, humiliation, or injury to their feelings caused by the Defendant’s actions.

Aggravated damages are awarded “… where the defendant has acted, either in committing the tort or thereafter, with contumelious disregard of the plaintiff’s rights, in any insulting or high-handed way or with malice.”1

In medical negligence claims, aggravated damages are typically awarded in situations where the medical professional’s behaviour was deliberate, malicious, or demonstrated a lack of remorse. For example, if a doctor knowingly provided substandard care, or if their actions involved deceit, disregard for patient safety, or perverts the course of justice, the Court may decide that aggravated damages should be awarded.

If awarded, aggravated damages are considered alongside other types of compensatory damages (such for pain and suffering, medical expenses and loss of earning capacity) and can increase the overall award given to the Plaintiff if the Defendant’s actions are found to be particularly reprehensible.

Unlike general damages, which compensate for physical pain or loss of function, aggravated damages focus on the emotional and psychological impact of the Defendant’s conduct. They are not automatically awarded and must be justified by evidence of the Defendant’s behaviour and the suffering it caused.

Awards for aggravated damages in medical negligence cases remain limited and uncertain in Australia. While it is presumed that aggravated damages can be awarded in Victoria, other states like Queensland and New South Wales have enacted legislation abolishing such damages in personal injury cases. However, international jurisdictions, such as Malaysia, offer valuable insight into how aggravated damages are applied, as demonstrated in the cases of Lim Hoke Yar v Prince Court Medical Centre and Others and the Appeal case in Dr Hari Krishnan & Anor v Megat Noor Ishak Bin, Megat Ibrahim and Anor.

Lim Hoke Yar v Prince Court Medical Centre and Others

The case of Lim Hoke Yar involved the medical treatment of Lim, a 75-year-old woman who in 2018, suffered a fall at home and was brought to Prince Court Medical Centre in Kuala Lumpur (the Hospital), where she was diagnosed with dengue fever. Despite being identified as a high falls risk by staff, on the day Lim was due to be discharged, she fell from her hospital bed resulting in a right sided intracerebral bleed. As a consequence of the fall, Lim was left in a persistent vegetative state and subsequently brought a medical negligence claim against the Hospital.

The Court awarded aggravated damages in Lim’s case after it became clear that the Hospital:

tried to blame Lim for her fall and relied on a lie which was exposed in Court during cross-examination;

• deliberately did not disclose material evidence including the incident report prepared by the nurses on duty and the nursing review conducted into the fall;
• deliberately failed to produce the incident report when ordered by the Court;
• supressed evidence and knowledge of the cause of the fall; and
• failed to report Lim’s fall within 24 hours or immediately after the fall to avoid a statutory inquiry into the fall.

Dr Hari Krishnan & Anor v Megat Noor Ishak Bin, Megat Ibrahim and Anor

Aggravated damages were also awarded in the Malaysian Appeal case of Dr Hari Krishnan. In this case, the Plaintiff had suffered a large retinal tear with detachment in his right eye and sought treatment from the Surgeon, Dr Hari at his private clinic. The Surgeon advised the Plaintiff that immediate surgery was necessary to correct the retinal detachment and performed the operation. Following the operation, the Plaintiff complained of pain and swelling in his eye, prompting the Surgeon to inform the Plaintiff that the retina in his right eye had folded outward and therefore required urgent repair through a second operation. Despite the Plaintiff’s request for a scan to confirm this, the Surgeon assured him that it was unnecessary.

The Plaintiff underwent the second retinal detachment surgery however, the Anaesthetist failed to administer adequate anaesthesia, causing the Plaintiff to jolt during the procedure. As a result, the Plaintiff suffered a Supra-Choroidal Haemorrhage (SCH), a severe haemorrhage with significant bleeding in his right eye

The Court found that that the Surgeon was negligent in failing to properly inform the Plaintiff of the risks associated with the second operation, including the potential for jolting and blindness. Furthermore, contemporaneous notes revealed that there was no retinal detachment, meaning second operation was unnecessary. The Court also determined that the Anaesthetist failed to administer sufficient anaesthesia, resulting in the Plaintiff’s movement during the procedure.

Regarding the conduct of the doctors, the Plaintiff was misled by the Surgeon and Anaesthetist into believing that his eyesight would return. The Plaintiff was given false hope when they assured him that if he remained in hospital and sat upright, the blood would subside from his eye and his vision would return.

The Plaintiff was awarded $1 million Ringgits (about $360,000 AUD) in aggravated damages. The Court found that the Plaintiff should have been informed at the earliest opportunity that his sight was beyond salvation. Due to the doctors’ negligence, the Plaintiff suffered a nervous shock injury and brought a medical negligence claim against the Surgeon, the Anaesthetist and the Hospital. In awarding aggravated damages, the Court took into account the doctors’ conduct as well as the Plaintiff’s resultant injury. The Court found that the Plaintiff endured embarrassment, humiliation and discomfort in the workplace and in public from his lack of movement and vision in the right eye.

While it seems unlikely that Australia will adopt the same approach to aggravated damages as seen in Malaysia, the use of such awards in medical negligence cases overseas underscores their potential to address the intangible harm suffered by Plaintiffs, particularly when a Defendant’s conduct during the legal process is deliberately vexatious or exceptionally egregious.

Understanding your legal options after a medical negligence event is important. Contact our medical negligence lawyers at Brave Legal for guidance on the next steps.