1. ) Jagan Naidu a/l Arumugam v 1. ) Junaidah binti Musa (BA-12B-38-07/2022)

JAGAN NAIDU A/L ARUMUGAM

ARUMUGAM A/L RANGGASAMY (IDENTITY CARD NO. : 511123-02-5043) APPELLANTS

JUNAIDAH BINTI MUSA (Menuntut sebagai isteri (IDENTITY CARD NO. : 860307-23-5868) dan anak yang sah dan orang tanggungan Simati, IZHAM SHAMSUL BIN AZIZAN dan juga untuk kecederaan diri (Plaintif

MUHAMMAD ALIFF RIZQI IZHAM (Menuntut sebagai anak SHAMSUL BIN ABDUL HAQ dan orang tanggungan (IDENTITY CARD NO. : 141203-08-0899) Simati IZHAM SHAMSUL BIN HAZIZAN dan menuntut melalui ibu, JUNAIDAH BINTI MUSA) GROUNDS OF JUDGMENT (Heads and Quantum of Damages)

which held the Defendants 100% liable for negligence in causing a road accident and which awarded various heads of damages in favour of the Plaintiffs, the Defendants have appealed to this Court on liability and quantum issues. 2

In the course of the oral submissions at the hearing of this appeal on 13.12.2022, the counsel has confirmed that the Appellants/Defendants did not pursue the liability appeal anymore (i.e. the percentage of negligence held by the trial judge) and would only pursue their appeal on quantum issues relating to the 1st claim for loss of future earnings, the 1st claim for loss of dependency and the amounts thereof. The counsel also confirmed that except for the abovementioned items of claims for loss of future earnings and loss of dependency, the Appellants/Defendants would not contest the other items of awards by the trial court.

on 13 January 2023 allowed the appeal in respect of only one (1) head of damages.

Unhappy with the said decision, the Respondents/Plaintiffs have in turn appealed further to the Court of Appeal. Law on appellate intervention in award of damages

In an appeal against award of damages or compensation, the appellate court may intervene where it is satisfied that the trial judge has acted on a wrong principle of law, or has misapprehended the facts, or has for other reasons made a wholly erroneous estimate of the damages suffered: House of Lords in Davies v. Powell Duffryn Assoc. Collieries [1942] AC, p. 616-617, followed in Collector of Stamp Duties v. Ng Fah In [1981] 1 LNS 107; [1981] 1 MLJ 288 at p. 292A; or to be a wholly wrong estimate of the damages, the amount awarded must manifestly be either excessively high or excessively low.

An omission on the part of the trial judge to consider some relevant matters or he had admitted for the purpose of assessment some irrelevant considerations or a misdirection of law are examples of having acted on a wrong principle of law or having misapprehended the facts which justifies appellate interference on the award of damages or the quantum of damages: Federal Court in Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 2 MLJ 22; followed by the Court of Appeal in Laksmana Realty Sdn Bhd v. Goh Eng Hwa [2005] 4 CLJ 871; [2006] 1 MLJ 675 at pg. 682 para 3 [16].

The Court of Appeal in the case of Sambaga Valli KR Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors And Other Appeal [2017] 1 LNS 500; [2018] 1 MLJ 784 emphasised regarding appellate intervention in the award of damages that: [8] The Court of Appeal may interfere with the quantum of damages awarded by the judge only if it is shows that the latter:

acted on the wrong principles

misapprehended the facts; and

had for these or other reasons made a wholly erroneous estimate of his damages. 1st claim for loss of future earnings

In the recent case of Kuala Terengganu Specialist Hospital Sdn Bhd & Anor v. Ahmad Thaqif Amzar Huzairi & Other Appeals [2022] 10 CLJ 209 the Court of Appeal held as follows regarding the principle on assessment of damages: Before concluding on SD, we must state that the LJ had correctly adopted the established principle on the assessment of damages that the court must be mindful that damages serve as a compensation and are not meant to unjustly enrich the claimant nor punish the wrongdoer. The damages must be fair, adequate and not excessive based on cogent evidence before the court (see Yang Salbiah & Anor v. Jamil Harun [1981] 1 LNS 106; [1981] 1 MLJ 292; Ong Ah Long v. Dr S Underwood [1983] 2 CLJ 198; [1983] CLJ (Rep) 300; [1983] 2 MLJ 324; Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885). It is important to reiterate that damages for personal injuries are neither intended to be punitive nor a reward but purely compensatory. [54] In our deliberation on all the relevant heads of the damages which are the subject of this appeal, we adopt with approval the judgment of the Court of Appeal in Tetuan Bahari Choy & Nongchik v. Harta Megajaya Sdn Bhd [2019] 7 CLJ 332; [2019] 6 MLJ 491 that: 4 [15] As to damages, it is settled law that in order for a claimant to succeed in its claim the claimant must show that the loss and damages is due to the breach of contract or negligence by the defendant. Once that is established the claimant has the additional burden of proving the damages. [16] Put simply the burden of proof is on the claimant to prove the facts and the amount of damages (Sony Electronics (M) Sdn Bhd v. Direct Interest Sdn Bhd [2007] 1 CLJ 611; [2007] 2 MLJ 229 (CA). Further, the damages must be proved with real or factual evidence. Mere particulars, summaries, estimations or general conclusion will not suffice (Lee Sau Kong v. Leow Cheng Chiang [1960] 1 LNS 56; [1961] 1 MLJ 17 (CA); PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd [2008] 1 LNS 679; [2009] 7 MLJ 681 (CA) at p. 697). ... [18] Having perused the evidence on the record, we are of the view that Megajaya has failed to prove the damages sought. The documents tendered in support of the claim, in particular exhibit P1, P2 and P3 are by themselves insufficient to establish liability against Bahari Choy. P2 is only a projection at best. We do not think that it is sufficient to merely write down the particulars to prove the claim for damages sought. There was no independent documentary or other evidence to support the estimates and

In accordance with the decisions of the appellate courts, loss of future earnings is a claim for special damages, and must be proved by cogent and specific evidence. The plaintiff who claims for loss of future earnings in a road accident case has to prove the causal link between the future loss of earnings and the negligent act in causing the accident. In real terms, the plaintiff in a claim for loss of future earnings has to prove on a balance of probabilities that his/her personal injuries sustained in the road accident has caused hm/her to lose future earnings. This first aspect of proving a claim for special damages is commonly described as proof of causation or causal link between the wrongful act or omission (i.e. breach of duty of care in the context of the tort of negligence) and the head of damages claimed.

The causal link between personal injuries and loss of future earnings is to be established by proving that the personal injuries sustained in the accident has resulted in disability or impairment to him/her which in turn causes him/her to lose future earnings. 5

After the causal link has been proved, the claimant still has to prove the amount of the special damages.

Both the standard of proof of causal link and the amount of special damages is on a balance of probabilities.

The claimant in a case of claim for special damages is only entitled to recover his claim for a head of damages which he has proved the causal link between the breach and that head of damages and for the amount which he has succeeded in proving. If he succeeds in proving the causal link but not the amount of damages, he would be awarded nominal damages for that head of damages.

In our present case, after the accident the 1st Respondent/Plaintiff returned to her same employment and she continued to work there for about one (1) year until May 2021. She then decided to resign and started a food business [Encl.3 page 193], namely KJ Food Empire [Encl. 3 page 194 193], a food stall in a food court and with a hawker licence issued by Shah Alam Municipal Council. Since before the road accident, the 1st Respondent/Plaintiff has been having and taking care of a disabled child (OKU child). The 1st Respondent/Plaintiff has been a holder of Diploma in Hotel Catering and Management.

For about 1 year after the accident, she drove to work at the same employment as before the accident, and there is no evidence of her difficulty in driving. Although she alleged that she had difficulty in driving, there is no medical evidence to support an allegation that she is unable to drive of had difficulty in driving. Under cross-examination, the 1st Respondent/Plaintiff testified that one of her two reasons for opening her own food business was it was easier to take care of her OKU child ( jaga [ see the Appeal Records in Enclosure 2 page 98 S&J 28].

There is also no cogent evidence to show that the 1st Respondent/Plaintiff has made any attempt to find a similar or comparable job at any place nearer to her residential home. If a person has suffered difficulty in driving long distance to her original workplace as a result of his/her injuries caused by a road accident, he/she should make reasonable attempts to find a similar or comparable job at another place which is near his/her residential home before he/she is allowed to claim for loss of future earnings arising from a post-accident change of type of job. 6

The 1st Respondent/Plaintiff was not terminated from her previous employment due to any physical disability or impairment.

There is no medical evidence that she is unable to work in her previous employment due to her physical injury or impairment.

The facts and/or circumstances summarised in paragraphs 10 to 11 have not been considered or appreciated by the trial judge in arriving at the decision to award this head of claim for loss of future earnings.

In the entire circumstances, this Court finds that the trial judge has misapprehended the facts, has failed to take into consideration the relevant factors and/or has erred in principle in her conclusion and award on the claim for loss of future earnings. If the trial judge has properly appreciated the evidence and facts and has taken all the relevant factors into consideration, the trial judge would have come to the conclusion (a) that there is no proof of causal link between the road accident and the change of her work and (b) that she has failed to prove her claim for alleged loss of future earnings on a balance of probabilities.

Further, as far as quantum is concerned, the trial judge erred in relying only on the food business earning of the 1st Respondent/Plaintiff in the month of December as the sole basis for assessing the loss of future earnings. December is the month when many people including employees in the cities and urban areas take leave and/or go for vacation, and this factor has a significant impact of the hawker food business in the city. Here the 1st hawker food business is in the municipality of Shah Alam, and it is unreliable to use the December earning figure as the sole basis for assessing whether or not there was any loss of earnings. The quantum of the alleged loss of earnings in the present case has not been proved on a balance of probabilities by specific and cogent evidence. Re-marriage of the 1st Respondent/Plaintiff and effect on her dependency claim

The Appellants/Defendants argued that by reason of the 1st-marriage sometime after the date of accident, she ceased to have any right to claim for loss of dependency. On the other hand, the Respondents/Plaintiffs argued that re-marriage is not a relevant factor at all in considering a claim 7 the provisions of the Pensions Act to support their contentions.

This Court is of the view that Pensions Act is a special statute dealing specifically with pension rights and benefits, and it is not applicable to cases of dependency claims under the Civil Law Act 1956.

In the circumstances of the present case, this Court does not agree with the Appellants/Defendants on this point. The reasons are set out in the following paragraphs.

In the considered opinion of this Court, re-marriage of a lady to not result in her loss of right to make dependency claim, depending on the particular facts and circumstances of each case. The relevant and material criterion is whether or not there has been any cessation due to the subsequent occurrence of supervening event which terminates the act of dependency. If the claimant has subsequently ceased to be dependent on the deceased independently of the death, then there is a cessation of the right to claim for loss of mes.

In the context of the female claimant who makes a claim for loss of although she remarries subsequently, the cessation of the right to claim for loss of dependency can only occur if her new husband has since been fully supporting her financially after the re-marriage.

In our present case, the evidence shows that the 1st food business and there is no evidence of the new husband having any other substantial source of income or financially supporting her fully. In the circumstances, this Court rejects the

Hence, this Court holds that the 1st in the circumstances of this case entitled to claim for loss of dependency notwithstanding her re-marriage subsequent to the accident.

In the circumstances, this Court does not find any valid or sufficient st 8 Plaintiff/Respondent in the present case is entitled to recover her loss of dependency. Quantum of the 1st and the son 2nd

argued that the quantum of dependency claim awarded by the trial judge is st Plaintiff) should only get a total of RM31,900 for her 29 months of loss of dependency until the date of her re-OKU child (the 2nd Plaintiff) should get RM550/month x 12 x 13.5 = RM89,100 as total loss of dependency.

Plaintiffs sought to increase the quantum of loss of dependency to RM4,000/month x 13.5 x 12.

In terms of procedure, notice of cross-appeal is meant for cases where the respondent wishes to rely on alternative grounds to variation of the terms of award or court order has to file a fresh Notice of Appeal with the result that a separate appeal number would be given to such appeal. With the two separate appeals which are related to each other, either of the parties can apply for them to be heard by the same judge and at the same time.

insofar as it seeks to persuade this appellate court to change or alter the quantum of award made by the trial judge. As such, this Court has no jurisdiction Notice of Cross Appeal.

A helpful reminder can be seen from the following passage of the Court of Appeal in Techcrew Sdn Bhd v. Nurhamizah binti Hamzah & Others [Civil Appeal No. J-02(NCvC)(W)-712-06/2020] wherein Kabushiki Kaisha Ngu v. Leisure Farm Corporation Sdn Bhd & Ors [2016] 8 CLJ 149: -appeal contravened rules 5 9 and 8 of the Rules of the Court of Appeal 1994 and section 69(1), (4) and (5) of CJA 1964 cannot be used to cure the defect in the notice of cross-appeal. Simply put 1st Respondent has failed to appeal against the quantum of the award but only award as to costs in favour of 2nd and 3rd Respondent. In this regard useful reference may be made to the decision of the Federal Court in the case of Kabushiki Kaisha Ngu v. Leisure Farm Corporation Sdn Bhd & Ors [2016] 8 CLJ 149 FC wherein the Court had examined the distinction between a cross-appeal and the need to file a notice of appeal in given circumstances. We should add that as a matter of prudence it is advisable for a party to file a separate notice of appeal if the party wishes to challenge the propriety that could be obtained through a notice of cross-appeal is rather limited. Many had fallen into the mistake of filing a cross-appeal without understanding the purpose and scope of the same, a step taken perhaps as a hedging the bests hoping that the cross-appeal may bring results. Such a practice, akin to taking a gamble many a times, had proven to be disastrous, as gambling does

Even if this Court has jurisdiction to entertain the cross-appeal, this Court would still dismiss the cross-appeal. The reasons include:

-appeal assumes that the deceased during his lifetime gave 100% of his gross take-home income to the wife and OKU;

this assumption is erroneous as the deceased also had personal expenses such as his lunches, motor vehicle expenses, travelling expenses, leisure and entertainment expenses, healthcare expenses, and other miscellaneous personal expenses;

in the absence of cogent and specific documentary evidence, llegation that her late husband used to give her the entirety of his total gross take-home income, or even his total net take-home income, without keeping any money for himself.

In our present case, the trial judge deducted 1/3rd from the deceased monthly salary of RM4,680.00 to arrive at the multiplicand of RM3.120, and then awarded in favour of the Plaintiffs in combination a total amount of RM3,120 x 13.5 x 12 = RM505,440.00 as the total loss of dependency. 10

In the entire circumstances of the case this Court finds no sufficient the total combined loss of dependency of both the 1st Plaintiff and the OKU son (the 2nd Plaintiff).

However, the trial judge erred in principle and in fact in failing to segregate and apportion the award of dependency loss between the 1st-married) and the 2nd

39.

The 1st Plaintiff (re-married wife of the deceased): RM305,440.00; and

The 2nd

reliable body or person.

In the circumstances of this case, this Court also orders that the amount of RM200,000 as dependency loss for the 2nd Plaintiff (the OKU child) shall be deposited with and administered by Amanah Raya Berhad in trust for the 2nd Plaintiff (the OKU child) and is to be disbursed periodically to the OKU child according to his needs from time to time. Liberty to apply to the Sessions Court for directions and guidance on the administration and disbursement of the trust money. Pre-trial interest on loss of future earnings and future loss of dependency

In the appeal, the Appellant also took issue regarding the Sessions and future loss of dependency.

For award of loss of future earnings, future loss of dependency or future expenses, these are in respect of earnings, support or expenses (as the case may be) to be obtained or incurred in future 11 after the date of trial.

In principle it is erroneous to award pre-trial interest for an award of loss of future earnings, future loss of dependency or future expenses.

The trial judge erred in principle in awarding pre-trial interest for loss of future earnings and future loss of dependency here.

In conclusion, this Court on 13 January 2023 held and ordered as follows:

The appeal on liability issues is dismissed;

Part of the appeal on quantum issues is allowed;

The award of loss of future earnings for the 1st Respondent/Plaintiff is set aside;

The quantum of RM505,440.00 awarded for the loss of dependency is segregated into the following amounts to be shared by the respective Respondent/Plaintiff:

The 1st Plaintiff: RM305,440.00;

The 2nd Plaintiff: RM200,000.00.

The 2nd RM200,000.00 as loss of his dependency shall be deposited with Amanah Raya Berhad to be administered and managed as trust money to be disbursed in progressive instalments for the benefit of the disabled/handicapped child, the 2nd Plaintiff, from time to time;

Liberty is given to apply to the Sessions Court for directions and guidance regarding the instalments and disbursements of the trust money of RM200,000;

The award for loss of dependency, as post-trial damages, shall be carry any interest for the period before the date of judgment;

As an ancillary order, an order that the amount of RM243,500.00 which the Appellants/Defendants have paid to the Plaintiffs to or for the benefit of the 1st Plaintiff shall be 12 refunded by or on behalf of the 1st Plaintiff to the Defendants st Plaintiff delays in making the refund, interest at 5% per annum shall be levied on such amount;

Each party to bear its own costs of appeal; dan

The cross-appeal is dismissed with no order as to costs. Dated this : 13th February 2023 Signed TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCvC 10)

For the Appellants : Nor Suhaida binti Ibrahim Messrs Naicker & Associates (Kuala Lumpur)

For the Respondents : Sivaruben a/l R. Balasekaran Messrs Sivaruben & Co. (Kuala Lumpur)