1.CHANDRAN A/L Narunan v 1.POON Weng San (A53KJ-596-08/2016)

CHANDRAN A/L NARUNAN (Plaintif pertama adalah orang ketidakupayaan mendakwa melalui isteri yang sah menurut hukum dan wakil litigasi iaitu plaintif kedua)

CHENDRAKALA A/P APPALANIDO …PLAINTIFFS

CONTROL TECHNICAL ENGINEERING SDN BHD …DEFENDANTS GROUNDS OF JUDGMENT Introduction 2 [1] This action was brought in relation to a motor vehicle accident (“accident”) involving the first plaintiff (“plaintiff”) and the defendants, where the plaintiff is claiming general and special damages. The accident in question occurred on 13 May 2013 at the junction of Jalan Intan, Puchong, Selangor between a motorcycle (license plate number BKT4701) ridden by the plaintiff and a van (license plate number WSA9932) driven by the first defendant. [2] While it was agreed that a collision indeed took place on the aforementioned date, there was significant conflict between the testimonies of the plaintiff and the defendant in relation to the circumstances of the crash. [3] It therefore fell to the court to determine the liability and quantum of damages arising thereof on balance of probability by parsing through the conflicting testimonies. [4] During the trial, the plaintiff called eight witnesses to attest in support of his account, namely: Shamini Ramachandra (SP1), Md Nizam Md Anwar (SP2), Sargeant Mohd Razlin Daini (SP3), Wong Hwa Swee (SP4), Choo Leong Lai (SP5), Merinda Chua (SP6) Tharma Ro Chandran (SP7), Chendrakala Appalanidoo (SP8) and Chandran Narunan (SP9). 3 [5] Poon Weng San (DW1) testified as the defendant in this case. [6] Having heard from all witnesses and considered the submissions from both parties, the court decided on balance of probability that 100% of liability for the accident accrued to the defendant. General damages and special damages therefore were awarded to the plaintiff. [7] Dissatisfied with the decision by the court, the defendant filed an appeal to the High Court on the whole of the decision by the court. [8] The following are my grounds on the issues of liability and quantum. LIABILITY Plaintiff’s account of the accident [9] According to the police report lodged by the first plaintiff, it was alleged that at the time of the accident the first plaintiff was riding his motorcycle. Upon reaching the junction of Jalan Intan 1, Puchong, Selangor, he momentarily stopped to ensure that the traffic was clear before making a turn. While the first plaintiff was still stationary on his motorcycle, a motor van with the license plate WSA9932 suddenly emerged from the junction at Jalan 4 Intan 1/3, careened out of control and entered first plaintiff’s lane – thus colliding with the first plaintiff. [10] Shamini Ramachandra (SP1) is an independent eyewitness who purported to have witnessed the accident as it occurred, but only reported it to the police four years later i.e. in 2017 after meeting the first and second plaintiffs in an ice cream shop, which jogged PW1’s memory and made her realize that she had in fact witnessed the accident involving the first plaintiff. [11] SP1 testified that she only lodged a police report four years after the accident because she did not know what to do at that time. However, by sheer chance she bumped into the first and second plaintiffs in an ice cream shop where she recognised the first plaintiff. [12] It was during a conversation at that time that the second plaintiff realised that SP1 had witnessed her husband’s accident. The second plaintiff informed SP1 that the matter was the subject of a court proceeding at that juncture, after which SP1 decided to lodge a police report and narrated her eyewitness account as documented in her police report (exhibit P2). [13] According to SP1’s testimony, she was at the material time standing under a tree between Jalan Intan 1/3 and Jalan Intan 1/1, talking on her 5 mobile phone while facing Jalan Intan 1/3. She testified that she saw the defendant driving out of Jalan Intan 1/3 without stopping at the junction, after which the defendant lost control of the van and rammed into the plaintiff who was waiting on his motorcycle at the spot marked by “Z” in sketch plan labelled as exhibit P4. [14] SP1 further testified that she saw how the accident occurred, and that she heard a loud bang during the collision between the plaintiff and the van driven by the defendant. SP1 also confirmed that there were blood stains on the road after the accident. I also note that said blood stains as well as the tree under which SP1 was standing at the material time were both not marked on the sketch plan - exhibit P4. The account of the investigation officer [15] Sergeant Mohd Razlin bin Daini (SP3), the investigation officer of this case (“IO”), testified that the first police report was lodged by the 1st defendant on 13 May 2013, which is the day of the accident, less than an hour after the accident. The plaintiff filed his own report on 11 July 2013 after he had been discharged from the hospital. 6 [16] The IO testified that after receiving the police report from both the defendant and the plaintiff, he went to visit the scene of the accident on 18 July 2013. He testified that he did not immediately visit the scene of the accident as he claimed that he was busy with many cases. [17] After visiting the accident scene, he then concluded his inquiry and classified the case as RTM (Refer to Magistrate). [18] Four years later, on 11 March 2017, the IO testified that he received the report lodged by the independent eyewitness SP1. Upon receiving the report, the IO then re-opened his investigation papers and proceeded to recall the defendant and took further statements. [19] He further testified that he subsequently issued a summons against the defendant under Rule 3(2)(b)LN 166/5. The account of the defendant [20] The defendant’s police report, lodged on the same day as the accident (i.e. 13 May 2013) contains several key differences from the plaintiff’s. [20] In his report, the defendant stated that he was driving along Jalan Puchong Intan at the material time. Upon reaching a three-way junction, the plaintiff’s motorcycle suddenly darted out of the left junction and executed a 7 right turn into the path of the defendant – thus causing a collision between the motorcycle and the van. [21] The defendant alleged that he did not see the plaintiff before the collision but only noticed him after the accident. The defendant further confirmed that the damage to his van was confined to the left front side of the vehicle. [22] I note at this juncture that the spot where the defendant purported the accident to have occurred (Jalan Puchong Intan) is different from the spot cited by the plaintiff and SP1 in their testimonies. In particular, the defendant alleged that the actual collision took place on the main road, while the plaintiff contended that it occurred at an inner junction. [23] To resolve these conflicting testimonies, reference was made to a set of photographs taken by Tharma Ro Chandran (SP7), also the son of the plaintiff which depicted the scene of the accident (taken approximately four hours after the crash) and the defendant’s motor van (taken six days after the crash). [24] SP7 testified that the white marks that can been seen in the photograph were blood stains which were covered with salt spread by SP7 at that time 8 because he did not want dogs to lick his father’s blood. I note that SP7 had informed the police about the photographs he had taken, but the location of the blood stains were not recorded in SP7’s police report. [25] Nevertheless, when the photographs were put to the defendant, he agreed to said photographs and confirmed that the location where the accident took place was at an inner junction (as per the plaintiff’s testimony) and not on the main road as he initially alleged. In particular, during re-examination, the defendant agreed that the blood stains photographed were inside the junction and that damage was confined to the front left side of his motor van. Decision Of The Court Liability [26] In the plaintiff’s police report, he alleged that while riding his motorcycle on 13 May 2013 he stopped at the junction of Jalan Intan, Puchong to ensure clear passage before turning. While the plaintiff’s motorcycle was still stationary, a motor van with the license plate WSA9932 (driven by the defendant) suddenly emerged from the junction of Jalan Intan 9 1/3 before losing control, barging into the first plaintiff’s lane and colliding with his motorcycle. [27] On the other hand, in the defendant’s police report1, the defendant stated that he was driving along Jalan Puchong Intan at the material time. Upon reaching a three-way junction, the plaintiff’s motorcycle suddenly darted out of the left junction and executed a right turn into the path of the defendant – thus causing a collision between the plaintiff’s motorcycle and the defendant’s van. [28] In the case of Noorianti binti Zainol Abidin v Tang Lei Nge [1990] 2 MLJ 243 it was stated: It has also been said in the event of two conflicting stories the trial judge should not approach the case upon the basis of considering which of the two conflicting stories he should believe but rather on the basis of considering which version is inherently probable or improbable – see for instance Koay Teik Choo v R (1956) MLJ 52. [29] As I face two conflicting accounts of the accident, I must now determine based on the evidence available which version is most probable. 10 In doing this I note the concerns raised by the defendant on the case put forth by the plaintiff. [30] First, the defendant questioned whether the testimony by independent eyewitness PW1 is reliable as she only lodged a police report on the accident she witnessed four years after it occurred, following a chance meeting with the plaintiffs in an ice cream shop. [31] Defendant submitted that how convenient it is for the plaintiff who, after a series hearing dates, conveniently had an independent witness who alleged to have been at the scene of the accident and witnesses the accident, appeared out of the blue. [32] Therefore, the defendant invite the court to view the sudden appearance of Shamini as an independent witness with suspicion, circumspect, not genuine and shall have little weight to her evidence. [33] To me, the issue of utmost primacy was whether SP1 was indeed at the scene of the accident. Although SP1 admitted that the vehicle registration numbers were supplied to her (rather than recalled from memory), this in itself does not disqualify her testimony from being valid. 11 [34] Having evaluated the witnesses’ testimonies, I accept SP1 as an independent witness who had actually witnessed the accident because she was standing on the left side of the road on the spot marked as “X”. [35] During cross examination, SP1 was rigorously questioned as to her credibility as a witness. From my assessment, her demeanour as well as her answers attested to the fact that she was indeed present at the scene of the accident and witnessed what had transpired at the material time. [36] For example, SP1 had clearly stated in her testimony that the accident happened on a Monday, which is subsequently proven true according to the calendar. Despite the defence counsel’s attempt to introduce a red herring by suggesting that the accident occurred on a Wednesday, PW1 remained steadfast and insisted that it happened on a Monday, as she specifically recalled working a night shift on that day. [37] Moreover, I am satisfied that SP1’s three-year delay in lodging a police report was indeed due to her ignorance of the need to report witnessing an accident, particularly as there was no request from the plaintiff, the defendant or the police for her to do so. 12 [38] SP1 also stated that she was ignorant of that provision of the law until her chance encounter with the plaintiffs at an ice cream shop led her to realise the importance of lodging a police report upon witnessing an accident. This realisation led her to lodge a police report in order to relay her eyewitness account to facilitate the investigation. [39] In this case, the fact that the eyewitness took three years to lodge a police report is not disputed by the plaintiffs; it is my view that notwithstanding the delay, the eyewitness has proven herself credible and I rule that her testimony is therefore admissible. [40] The defendant also raised the issue that initially, the IO who classified the case as RTM (Refer To Magistrate), only went to inspect the location two months after the accident, i.e. after receiving the plaintiff’s police report. The IO did not bring the defendant to said location although the defendant had lodged a police report on the very day of the accident. [41] Moreover, despite not acting further on the case in 2013, the IO decided to issue a summon against the defendant after receiving the report lodged by SP1 in 2017, whose credibility is questioned by the defendant, given that she only acted four years after the accident. The defendant therefore questioned the credibility of the findings of the IO. 13 [42] In this regard, I do not have doubt that the IO had undertaken the investigation in an independent and impartial manner. In 2013, the IO would have performed his inquiry based on all the information available to him at that time, i.e. the reports lodged by the defendant and plaintiff respectively, and on that basis concluded the case as RTM. [43] However, upon receiving new evidence in the form of the report lodged by the independent eyewitness SP1 on 11 March 2017, it was natural for the IO to reopen his investigation papers and summon the defendant for further statements as SP1’s report would have shed further light on the matter at hand and enhanced the information available to the IO such that there was now sufficient grounds to pursue the case. [44] In this case, with the privilege of all the reports and photographs before him, he then made his conclusion and proceeded to issue summon against the defendant under Rule 3(2)(b)LN 166/5. [45] The defendant further stated that in the absence of reliable testimonies, the court has to rely on the defendant’s police report and the silent evidence available to the court, i.e. police photographs of the accident scene and damage to the vehicles as well as sketch plans and other similar evidence. 14 [46] In this regard, the defendant contended that there were gaps in said evidence. For example, the defendant claimed that photographs of the accident scene taken by the plaintiff’s son, SP7, were undated and there was no photograph of the motorcycle involved. The defendant also claimed that there was no contemporaneous evidence adduced to prove that the white patches shown in the photographs were indeed blood covered with salt. Given such holes in the evidence, would they be sufficient to establish the point of impact and negligence on the part of the defendant? [47] In evaluating this, I note that the photographs produced by SP7, i.e. the plaintiff’s son, were actually taken four hours after the accident, making them a more timely source of evidence then photographs taken by the IO, which were only shot two months later. [48] In particular, SP7’s photographs not only provided more clarity in establishing the point of the collision but also illustrated the extent of the damage to the motor van driven by the defendant. [49] From the photographs, it can be clearly seen that the blood stains were on the road at an inner junction. Having assessed the points marked by the defendant and the independent eyewitness SP1 respectively as the point of impact, I determined on balance of probability that the collision indeed took 15 place on the inner junction as put forth by the plaintiff, rather than on the main road as per the defendant’s allegation. [50] In his evidence, the defendant also testified that he did not see the plaintiff before the collision. However, the defendant also testified at he was driving his van at a speed of approximately 40-50km/h at the material time, and that the road where the accident allegedly took place was 21 feet wide. [51] At such a low speed and on such a wide road, it seemed improbable that the defendant was unable to either see the plaintiff’s approach or avoid colliding with the motorcycle. It is therefore more likely that, on balance of probability, the accident actually happened because the defendant himself had lost control of the motor van he was driving – as per the independent eyewitness account – and collided into the plaintiff, who was stationary at the material time. This would explain why the defendant neither sighted the plaintiff before the accident nor managed to perform an evasive manoeuvre to avoid hitting his motorcycle. [52] Moreover, the evidence adduced show that the injuries suffered by the plaintiff and the impact of the collision on the motorcycle were sustained on the right-hand side, with no injury or damage on the left. Damage to the defendant’s motor van was also confined to the left front side of the vehicle. 16 These observations support the plaintiff’s contention that the defendant’s motor van impacted the plaintiff and his motorcycle from the right – which is consistent with the plaintiff’s attestation that the crash occurred on an inner junction rather than the main road – and not a collision from the rear as claimed by the defendant. [53] In determining liability, I also note that Wong Hwa Swee (SP4) – who is the defendant’s employer – admitted to paying a sum of RM10,000 to SP7, i.e. the plaintiff’s son, for the plaintiff’s medical costs. SP7 also testified that he did not put pressure on SP4 to pay said sum to cover his father’s medical bills. [54] If the defendant was indeed not liable for the accident, it would be most extraordinary for SP4 to voluntarily offer a large sum of money to assist a complete stranger, particularly in the absence of any coercion by SP7. With this in mind, I am inclined to believe that SP4 had known that the defendant, i.e. his employee, was indeed guilty of causing the accident and therefore offered the money with the hope of achieving an amicable resolution to the matter. [55] Having evaluated all the evidence adduced before me, the court therefore determines that the defendant is 100% liable for the accident as he 17 had careened out of control at the junction of Jalan Intan 1/3, which caused his motor van to collide into the plaintiff who was waiting on a stationary motorcycle at the mouth of that junction. Quantum – General Damages [56] It must be noted before awarding damages that the plaintiff was 53 years old when he met with the accident. He was 58 years old when he testified in court. The plaintiff was working as ice cream seller at the time of the accident. Closed comminuted and displaced fractures of right radius and ulnar [57] The plaintiff submitted for RM33,000.00 for the above injuries while the defendant submitted for RM20,000. [58] According to the Revised Compendium of Personal Injury Awards (“the Compendium”) the quantum for fracture of radius and ulnar is between RM19,500.00 to RM33,000.00. [59] In the case of Nadarajah a/l Seenivasan v Premnat a/l Ponchanu [2016] 2 PIR 23 the court awarded the sum of RM20,000.00 for open fracture distal end of the left radius and fracture proximal of the left ulna. 18 [60] In Amanah Raya Berhad, Pentadbir Harta Pusaka Hashin bin Mat, Si Mati v Cheng Feng Marketing [2016] 1 PIR [30] the court awarded RM25,000.00 for closed fracture of the left radius and ulna. However, it should be noted that the plaintiff therein suffered residuals or disabilities, namely a malunion fracture, deformity of the left wrist, Grade 4+ reduced left hand grip power and reduced left wrist extension. [61] In this case, the court therefore awards RM25,000. Comminuted inter trochanteric fracture of the proximal right femur and comminuted and displaced fractures of mid-shaft of right femur [62] Based on the Compendium, the injury for femur is quantified from RM19,500.00 to 44,000.00. The plaintiff requested RM30,000 for comminuted inter trochanteric fracture of the proximal right femur and RM25,000 for comminuted united and displaced fracture of shaft right femur. [63] Thus, the plaintiff requested RM55,000 for the above two injuries at the same spot of the same function, while the defendant submitted for RM25,000 for the above injuries. [64] In Mohd Safri Amirus bin AB Karim v Rosli bin Mohd Idris [2014] 2 PIR [83] the court awarded RM35,000.00 for comminuted fracture of the lower 19 third of the right femur. In this case the plaintiff suffered disabilities where, inter alia, there was a 0.24cm shortening of the right femur, 17 cm x 1 surgical scar over the right thigh, inability to stand for long periods, play games and squat, limitation of the right knee, hip movements, pain during strenuous activities and cold weather as well as pain in the right hip and knee joint. [65] In Chia Choon Seng v Ashwindran a/l Vijayakumaran [2014] 2 PIR [112] the court awarded the sum of RM40,000.00 for closed fracture of the right intertrochanteric femur and closed segmental fracture shaft of the right femur. The disabilities suffered by the plaintiff in that case, among others, are muscle wasting, reduced muscle power of 4+/5 of the right hip and knee extensor and flexor, limitation of movement of the right hip especially on rotation and a limp. [66] Based on the first specialist report, the plaintiff had recovered fully with no residuals or disabilities other than muscle wasting. [67] In this case, the court therefore awards RM40,000 for the above two injuries despite RM55,000 requested by the plaintiff. 20 Fracture of right lateral tibial extending to medial tibial plateau associated with fracture of proximal left fibula. Open Grade 3 fracture. [68] Under the Compendium, the quantum for fractures for tibia and fibula without shortening is between RM19,500.00 to RM38,500.00. [69] The plaintiff requested for RM35,000 while the defendant submitted for RM25,000.00. According to Tan Chin Chye v Tan Chee Yew [2015] 1 PIR [70] the court awarded RM26,000.00 for open fracture of the right tibia and fibula. In Lim Kok Wa v Wong Kien Chun [2016] 1 PIR [52] the court awarded RM30,000.00 for open fracture of the right tibia and fibula shaft. [70] In this case, the court agrees with the plaintiff and awards RM35,000. Fracture of right maxilla and fracture of right zygomatic arc [71] The plaintiff submitted for RM20,000 and another RM10,000 for fracture of right zygomatic arch. Thus the plaintiff requested for RM30,000 for the above two injuries. [72] The defendant submitted for RM20,000 for the above two injuries. [73] The court hereby awards RM30,000. 21 Scars and keloid scars [74] The plaintiff submitted that multiple scarring and keloid scars are present all over his body, based on the plaintiff’s medical report. As such, the plaintiff requested for RM40,000. [75] As the amount requested by the plaintiff is highly excessive, the court awards RM10,000.00 only. Wasting of right calf muscle and right thigh [76] Wasting of right calf is about 1 cm and right thigh muscle is about 3cm. Thus the plaintiff requested for RM5,000 as the usual sum. [77] The court agrees to award RM5,000 for muscle wasting. Traumatic severe brain injury with diffuse axonal injury [78] The severe head injuries suffered by the plaintiff during the accident have resulted in cognitive deficits affecting his memory, language functions, executive functions and permanent impairment of behaviour. A psychiatric report from Sunway Healthcare dated 19 October 2015 confirms the same. The plaintiff therefore requested for RM250,000. 22 [79] The plaintiff referred to the case of John Andrew Malthouse v Cyril Steven & Ors (2014) 8 CLJ 462 where the court had granted RM300,000 for traumatic brain injury. [80] The defendant submitted for RM30,000. [81] As the amount requested by the plaintiff is excessively high and the amount submitted by the defendant is excessively low, the court agrees to award RM100,000. Fracture of ninth rib [82] The plaintiff requested RM5,000.00 for the above probable said fracture. [83] The court agrees to award RM3,500 only. Quantum - Special Damages Medical bills [84] The court allowed 1/3 of RM15,005.05 as submitted by the defendant for medical bills. Thus, RM5,000 is allowed for medical bills. Acre Pharmacy 23 [85] The court agrees with the submission by the defendant and allows RM12,222. Arise Pharmacy [86] The court agrees with the submission by the defendant and allows RM2,900. Future medicine [87] The first plaintiff requires Zyprexa for the rest of his natural life. The court agrees with the submission by the defendant and allows RM49,336 for future medication. Loss of income for first plaintiff [88] SP8, spouse of the plaintiff and also herself the second plaintiff, testified that the plaintiff used to run an ice cream business before he was involved in the accident, with SP8 merely helping out at said shop. [89] SP8 testified that she would receive RM2,500 per month for assisting at the shop but no salary slip was issued as the business was run by her husband. SP8 further testified that she was forced to resign from the ice 24 cream shop after the accident to provide her husband with round-the-clock care on a full-time basis. [90] The plaintiff referred me to the case of Sumayah v The Selangor Omnibus Co Bhd (2011) 5 CLJ 7 whereby it was stated that when the plaintiff’s husband resigned from his job to care for the plaintiff, he was not mitigating the cost of nursing care but in fact occurring a higher opportunity cost in terms of lost income. [91] It was submitted by the plaintiff that in the present case before me, the second plaintiff had stopped working in their ice cream shop and is currently providing full-time round-the-clock nursing care to the first plaintiff due to his physical and mental condition. [92] Thus, both the first and second plaintiffs are currently not engaged in any employment. The first plaintiff was 53 years old and the second plaintiff was 48 years old at the time of the accident. [93] While no documentary evidence was produced in relation to their salaries, the plaintiffs had presented to the court Registrar of Business documents to prove that they ran an ice cream shop. The plaintiffs therefore urged the court to take judicial notice of the loss of income for both plaintiffs 25 (see Balakrishnan Kunjamboo Nair v Savastine Anthony Francis (1991) 2 CLJ). [94] While the court accepts that the plaintiff derived an income from operating an ice cream shop prior to the accident, as evidenced by the Registrar of Business documents, the court also agrees with the defendant that that there is no documentary evidence to demonstrate the plaintiff’s monthly earnings. [95] For the purpose of loss of income for the plaintiff, the court decided to fix a lower amount of RM1,200 per month which the court think is reasonable. Furthermore the amount is on the lower side. The calculation is as follows: (55-53 years)/2 = 12 months x RM1,200 per month = RM 14,400 [96] Thus, the court awards RM14,400 for loss of income for the plaintiff. Nursing care [97] The court agrees with the defendant that the first plaintiff requires no nursing care. Interest and costs 26 [98] 2.5% per annum on special damages from the date of accident until the date of judgment. 5% per annum on general damages from the date of service of summons until the date of judgment, as well as 5% per annum on total judgment sum from the date of judgment until the date of full settlement. Dated this 29 March, 2018 sgd (ISHAK BIN BAKRI) Judge Sessions Court Shah Alam Selangor Solicitors: Patminder Singh (Omar Gill & Partners) for the plaintiff Razlan Hadri Zulkifli (Gan,Ho & Radzlan Hadri) for the defendant 27