Introduction
As established in Rookes v. Barnard [1964] AC 1129, aggravated damages may be awarded when the manner of tort results in injury to the plaintiff’s dignity, self-respect, or emotional well-being, particularly considering the motive or conduct of the tortfeasor. In the context of medical negligence, the Federal Court’s decision in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281 (‘Dr Hari Krishnan’) established that aggravated damages constitute a separate head of damage, distinct from general damages. This was further reinforced in Dr Chandran a/l Gnanappah v Gan See Joe (suing as the administrator of the estate of Gan Hong Wee, deceased) & Anor and another appeal [2025] 5 MLJ 216 (‘Dr Chandran’), where the Court of Appeal distinguished aggravated damages from exemplary damages. In summary, aggravated damages operate as a separate compensatory head of damage in tort.
In Dr Chandran, the Court of Appeal elaborated on the court’s discretionary power to grant such awards:
“…the court can only exercise its discretion to grant aggravated damages when a defendant has been guilty of malicious, contumelious, offensive, outrageous and/or ‘exceptional’ behavior or conduct which had caused distress, anguish, misery, hurt and/or injury to the feelings of the plaintiff…”
Significantly, the Court of Appeal noted that the assessment of the quantum of aggravated damages is an exercise of judicial discretion based on the specific facts of each case. Therefore, decisions regarding quantum do not constitute binding legal precedents under the doctrine of stare decisis.
Consequently, the question that arises is: what are the common aggravating factors that may lead a court to award aggravated damages?
Dr Chandran a/l Gnanappah v Gan See Joe (suing as the administrator of the estate of Gan Hong Wee, deceased) & Anor and another appeal [2025] 5 MLJ 216
In Dr Chandran, the deceased suffered from pansinusitis and meningitis. The deceased was referred to the 1st Defendant, an Ear, Nose and Throat Consultant (‘ENT Consultant’), who advised the deceased’s parents to consent to undergo sinus surgery. The High Court found that the 1st Defendant had failed to provide adequate information regarding the purpose, risks, and benefits of the sinus surgery, as well as the available alternative treatment options.
The High Court initially found both the doctor and the hospital liable for “contumelious” conduct and awarded RM350,000 in aggravated damages. On appeal, the Court of Appeal set aside the award against the 2nd Defendant (i.e. the Hospital) as the Court found there were no personal aggravating circumstances on the part of the Hospital. However, the Court of Appeal upheld the RM350,000 award against the 1st Defendant, identifying the following aggravating factors:
- the concealment in the 1st Defendant’s guarantee letter request form;
- the 1st Defendant’s misrepresentation to the deceased’s parents, which had induced the giving of an invalid consent;
- the embellishment of the 1st Defendant’s notes; and
- the use of false expert evidence to unlawfully bolster the defence.
Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma a/l Karam Chand (suing as administrator of the estate of Suman Rampal a/p Hardyal Rampal, deceased) & Anor and another appeal [2026] 1 MLJ 172 (‘Bukit Tinggi Hospital’)
On the other hand, in Bukit Tinggi Hospital, the deceased was sent to the hospital for severe abdominal pain. The deceased was attended by the 2nd Defendant, a medical officer in the Accident and Emergency Department. The deceased was misdiagnosed by the 2nd Defendant with a urinary tract infection when she had a ruptured ovarian cyst. She was discharged but returned hours later and died of septicaemia.
The High Court found the Defendants liable for negligence and awarded RM700,000 in aggravated damages to the Plaintiffs on the basis that the Defendants have acted unprofessionally and had caused the loss of the patient’s life.
However, the Court of Appeal set aside the award, finding that there was no clear and convincing evidence of any high-handed, oppressive, insulting, or contumelious behaviour by the 2nd Defendant (i.e. the Hospital) or its doctors. The Court emphasised that clinical negligence must not be conflated with aggravating conduct, the latter requiring something over and above the breach of duty. Furthermore, the Court held that injury to the pride, feelings, or dignity must occur at the same time as the tort. Plaintiffs cannot consider any conduct by the tortfeasor after the occurrence of the tort as aggravating circumstances. As such, estates are not entitled to aggravated damages arising from the tortfeasor’s conduct after the death of the deceased.
Further, the Court of Appeal highlighted that a claim for aggravated damages must be expressly pleaded and properly particularised, stating the facts and circumstances relied upon. In this case, the Court found that there was no causal connection between the respondent’s post-trial submissions and the particulars of aggravated damages pleaded in the Statement of Claim. Therefore, the Court was of the view that, on the pleadings alone, the claim for aggravated damages ought to have been rejected.
Ahmad Faizal bin Mohamad Ali & Ors v Jay Shree LC Doshi (secara sendiri dan sebagai wasi dan pemegang amanah estet Vinayak Prabhakar Pradhan) [2026] MLJU 447 (‘Ahmad Faizal’)
In Ahmad Faizal, the deceased suffered horrific full thickness burns to his chest after the 1st Defendant (i.e. an interventional radiologist) performed a Radiofrequency Ablation (‘RFA’) procedure. The 1st Defendant had ignored a multidisciplinary board’s recommendation for cryoablation and failed to inform the family of the alternative procedure.
The High Court awarded RM500,000 in aggravated damages, citing the doctor’s “lack of compassion”, “lackadaisical attitude”, and “nonchalant” response to the injury. The Court took into account the doctor’s demeanour during the trial, noting he showed no remorse and displayed an “over-smart” attitude when answering questions.
While the Court of Appeal affirmed the High Court’s award of RM500,000 in aggravated damages, it clarified that aggravated damages are not a ‘punishment’, but a means to compensate for the additional psychological and emotional distress caused by the defendant’s exceptional conduct. Be that as it may, we note that pursuant to the Bukit Tinggi Hospital’s case, any conduct by the tortfeasor after the occurrence of the tort should not be considered as aggravating circumstances. As such, the 1st Defendant’s demeanour during the trial may not be considered as an aggravating circumstance in light of the principles in Bukit Tinggi Hospital.
Conclusion
In conclusion, the awarding of aggravated damages is a fact-sensitive exercise of judicial discretion. As observed in Ahmad Faizal’s case, there is no mathematical formula in determining the appropriate quantum for aggravated damages, the award serves as a “solatium” for the additional layer of emotional harm that exceeds ordinary pain and suffering.
The courts have emphasised the need to distinguish between mere negligence and aggravating circumstances, cautioning against conflating the two. The absence of such a distinction risks transforming aggravated damages into a routine adjunct to general damages, which is not the intention of the law. Claimants must meet the evidential threshold and specifically plead the particulars of the conduct relied upon to successfully claim aggravated damages.