Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66; [2024] 4 CLJ 173
We have corresponded with the Editor of the Malayan Law Journal with our comments on the standard of its reporting in Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66.
Set out below are the content of our letter dated 27 May 2024 (with an editorial and the correction): -
“We refer to your abovementioned report regarding an appeal to the Federal Court in which we act for the appellant.
There are errors in and omissions from the report.
It appears that you had relied upon the dissenting judgment so as to omit the name of leading counsel for our client, Mr P S Ranjan, and also the names of the following counsel, all of which names appear in the judgment of the majority: -
- Mr Malik Imtiaz Sarwar (Mr Felix Raj; Mr Khoo Suk Chyi and Mr Joseph Lum with him) as amici curiae for the Association of Private Hospitals of Malaysia; and
- Mr Gurdial Singh Nijar (Ms Jessica Ram Binwani and Mr Abraham Au Tian Hui with him) as amici curiae for the Consumers Association of Penang.
The respective solicitors to the two Associations, whose names too have been omitted from the report, are: -
- Messrs Felix Raj Chambers; and
- Messrs. Kanesh Sundrum & Co.
The catchwords refer to only one point, that is about the liability arising from a breach of the non-delegable duty of care of the owners and managers of a hospital (and not the complex of buildings making up the hospital, and none of which buildings has any legal personality and therefore was not sued).
There should have been catchwords regarding each of the following material points: -
- damages, particularly regarding directors’ fees and allowances; and the computation of the multiplicands and the multipliers;
- statutory interpretation, particularly regarding the phrase “earnings by his own labour or other gainful activity” in section 28A(2)(c)(i) of the Civil Law Act 1956;
- civil procedure, particularly regarding the respondent’s contention that there was no appeal as regards quantum and regarding the respondent’s claim against D2 for an indemnity (we cannot understand why the abbreviation “CA” was used in the catchwords); and regarding the appellant’s appeal regarding the rate of interest; and
- words and phrases, particularly in regard to the phrase “earnings by his own labour or other gainful activity”.
The inadequate catchwords only serve to make it more difficult when undertaking legal research to detect and understand the pronouncements made by the Court.
It is vital to have sufficiently brief yet adequate catchwords so as to read and understand the holdings by reference to the catchwords. A more detailed set of catchwords would have shown the broad extent to which this case applies. Unfortunately, vital points have been lost in editing.
There has been insufficient regard in the headnote to the need to distinguish between the issues (such as those as set out in the catchwords); the holdings; the rationes decidendi; the obiter dicta; and the observations made by the judges.
There was no mention in the passage before the passage in which the holdings appear that the appeal also concerned: -
- the respondent’s contention that there was no appeal regarding quantum;
the appellant’s appeal regarding inclusion of the director’s fees and allowances as part of the lost earnings; - his appeal regarding the multiplicand and the multiplier applicable to certain items of damages concerning the lost director’s fees and allowances;
- his appeal regarding the rate of interest of 4% per annum ordered on the various awards of damages; and
- the respondent’s claim for an indemnity from D2.
It is not right to tuck them into the holdings which had to appear further down (but with the inappropriate use of phrases such as “this court”, as if the reporter was speaking for the Court).
There appears to be an obiter dictum that the questions posed when leave to appeal was granted need not be specifically answered following the hearing of the appeal and the giving of grounds for the decision. It has a material bearing on many civil appeals to the Federal Court. However, you did not mention this important point in the headnote.
The holdings are unnecessarily wordy and are not confined to the legal principles underlying each holding. With sufficient catchwords; sufficient mention of the facts; and sufficient mention of the issues raised (but all of them briefly enough), the decision in brief and the holdings could then follow as set out below: -
“Held (Zabariah Yusof FCJ dissenting), allowing the appeal; increasing the award of damages; and rejecting the respondent’s claim for a contribution or an indemnity from D2: -
- as a provider of healthcare, the respondent was in breach of its non-delegable duty of care so as to make it liable in negligence;
- that the appellant’s director’s fees and allowances were “earnings by his own labour or other gainful activity” within the meaning of s 28A(2)(c)(i) of the Civil Law Act 1956;
- that different multiplicands had been applied in error when a constant and higher multiplicand had to be applied, along with the multiplier contended for the appellant, in regard to the lost director’s fees and allowances, whether as special damages; pre-trial damages; or post-judgment damages;
- that there was no reason to disturb the award, in the exercise of the discretion of the courts below, of interest at the rate of 4% per annum; and
- that the respondent’s claim for an indemnity could not stand as D2 was not a party to the appeal to the Federal Court and as there was a personal liability on the respondent.”
We believe that the holdings as reported should not have been stuffed with the reasons for the holdings. The holdings are meant to be “signposts” and to assist the reader to focus on the legal principles underlying the decision.
There is the use of the phrase “referred” in regard to judgments in other cases in the report. We cannot remember the use in your recent reports of judgments of such phrases as “followed”; “not followed”; “overruled”; “approved”; “disapproved”; “distinguished”; “explained”; and “doubted”. The appropriate use of such phrases in the reports would assist the reader in understanding a judgment. It would require more work and a higher level of ability, of course, but would lead to a better quality of law reporting.
You had mentioned in the headnotes the appellant’s case which was also founded upon breaches of contractual and statutory duties. The Federal Court did not address our client’s case based on a breach of the contractual duty of care. That omission could have been mentioned in an editorial note in the style of the All England Reports. While there was also a pleaded case of the tort of breach of statutory duties the Court, having referred in detail to the various statutory provisions, fashioned a non-delegable duty of care in the separate tort of negligence by reference, inter alia, to those provisions.
While the majority in the Court had decided that there was no need to answer the questions specifically (actually there were questions which were answered and others which were not), we believe that readers would have been interested in seeing in the headnotes the questions on which the Court had granted leave to appeal and had heard counsel during the hearing of the appeal. Mentioning the questions in the headnotes to a case in which two lengthy judgments were delivered would have helped to focus early attention on the issues.
The editors of Lloyd’s Law Reports include in their Medical Law series, at the end of reported judgments, commentaries on the judgments by distinguished barristers. Such a practice would mean more work and a higher level of ability but again would serve to improve the quality of the reports.
While due regard must be given to the dissenting judgment in the report in this case, we cannot understand why you had chosen to refer to it first and in such great detail in the holdings when the reader would have been anxious to grasp without delay the holdings pronounced by the majority.
From a long time ago, we had taken up with the editors of local law reports our concerns regarding the poor quality of law reporting. It is not right to take, as appears to have been the case here, the approach of a law student who is summarising the contents of a judgment. Law reporting is very different. In the United Kingdom, King’s Counsel and senior and experienced barristers undertake law reporting. We do not see in Malaysia anything near an equivalent standard.
It would not be enough to publish a corrigendum in this case. We ask that the report be re-published with the necessary changes made. If you wish to publish this letter, please let us know early so that we may, before publication, review what we have written here.
We had undertaken law reporting for the Malayan Law Journal and the Singapore Law Reports and are grateful to their editors of earlier times for all that they had taught us. Something that we had learnt was to seek clarification from judges of the contents of their judgments, if the need for it arose.
Attached is our note on this case which we had posted on our website.”
Our note mentioned above is already on our website. The link is –
https://www.psranco.com/index.php?type=articles&act=details&ref=16
The only substantive reply (if at all) from the MLJ is an email dated 18 July 2024, the contents of which are set out below: -
“P S Ranjan & Co.
Advocates & Solicitors
17th Floor, Wisma Lee Rubber No 1, Jalan Melaka
50100 Kuala Lumpur 18 July 2024
Dear Sir,
Re Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66
We refer to your letters dated 27 May 2024, 30 May 2024 and 21 June 2024.
Upon review, we have corrected the counsel names in the reported case to ensure accuracy and completeness.
We have also conducted an independent check of the catchwords and headnotes and stand by the integrity of our original work. Our team, including a senior reporter, has re-evaluated the judgment and concluded that the headnotes capture the essence of the case in alignment with our reporting style and format.
We value your feedback as it provides us with an opportunity to reassess our work and continually improve.
Should you have any further queries, please do not hesitate to contact the undersigned.
Thank you.
Yours sincerely,
Shalini Sunderajan
Head of Asia Pacific Case Law Editorial Operations LexisNexis Malaysia Sdn Bhd”
