1. ) Khairul Anuar Bin Mohamad Nordin v 1. ) Muhamad Syamsul Amin Bin Syafawi (AA-12B-15-06/2023)

KHAIRUL ANUAR BIN MOHAMAD NORDIN [NO. K/P: 860715-08-5133] 10

KETUA SETIAUSAHA KEMENTERIAN PELAJARAN

KERAJAAN MALAYSIA … APPELLANTS 15

MUHAMMAD SYAMSUL AMIN BIN SYAFAWI [NO. K/P: 010408-08-1019] 20

SYAFAWI BIN ISMAIL [NP. K/P: 740627-08-6885] … RESPONDENTS IN SESSIONS COURT AT BATU GAJAH 25 IN THE STATE OF PERAK DARUL RIDZUAN

MUHAMMAD SYAMSUL AMIN BIN SYAFAWI 30 [NO. K/P: 010408-08-1019]

SYAFAWI BIN ISMAIL [NP. K/P: 740627-08-6885] … PLAINTIFFS 35 AND S/N gnXtrynpNEuJ71wwAzGw

KHAIRUL ANUAR BIN MOHAMAD NORDIN [NO. K/P: 860715-08-5133]

KETUA SETIAUSAHA KEMENTERIAN PELAJARAN

KERAJAAN MALAYSIA … DEFENDANTS 45 JUDGMENT Introduction [1] This is an appeal by Defendants from the judgment of the Sessions Court on the quantum of general damages awarded for various 50 injuries sustained by the 1st Respondent/1st Plaintiff in a motor vehicle accident. The 2nd Respondent/2nd Plaintiff is the biological father of the 1st Plaintiff. For ease of reference, the parties will be referred to by their original status, i.e., the Appellants as the ‘Defendants’ and the Respondents as the ‘Plaintiffs’. 55 The facts leading to the appeal [2] The 1st Plaintiff was involved in a motor vehicle accident involving a motorcycle ridden by the 1st Plaintiff and a motorbus driven by the 1st Defendant. The 2nd and 3rd Defendants, a government agency and the government respectively, are vicariously liable for the 1st 60 Defendant. The collision resulted in significant damages and injuries to the 1st Plaintiff. This suit was filed to determine liability and damages. S/N gnXtrynpNEuJ71wwAzGw [3] On April 13, 2023, both parties reached an agreement regarding the apportionment of liability. It was determined that the Defendants are 65 90% liable for the accident, while the Plaintiffs are 10% contributorily negligent. [4] In addition to the liability agreement, the parties also agreed on the special damages incurred by the Plaintiffs. These special damages, including medical expenses, repair costs, and other out-of-pocket 70 expenditures directly resulting from the accident, amounted to RM3,240.45. This sum was agreed upon on a 100% liability basis. [5] The dispute on the quantum of general damages was heard and decided by the Sessions Court, who awarded a total of RM192,000.00 for general damages (on 100% liability basis), they 75 are broken down as follows:- a) Intracranial bleeding - mild head injury with multiple bone fractures and severe cerebral concussion: RM 90,000.00; b) Left eye traumatic optic neuropathy - total blindness of the left eye: RM 90,000.00; 80 c) Multiple abrasion wounds: RM 5,000.00; d) Nose bleed: RM 2,000.00; e) Permanent scar: RM 5,000.00 S/N gnXtrynpNEuJ71wwAzGw Appeal on Quantum 85 [6] Generally, in appeals relating to quantum of damages, it is well established that courts will hesitate to interfere with the trial judge’s finding unless it is convinced that the trial judge had applied a wrong principle of law or awarded amounts that is extremely high or low, making it entirely erroneous. This is pointed out in the case of Tan 90 Kuan Yau v. Suhindrimani [1985] 2 MLJ 22. The court's objective is to provide monetary compensation, to restore the Plaintiffs to their pre-accident position, to ensure that the award is fair and not excessive. It must also avoid punishing the Defendant with having to pay high compensation and requires the Plaintiffs to mitigate 95 damages. These principles are provided in cases such as Rasidin bin Partorjo v. Frederick Kiai [1976] 2 MLJ 214; [1976] 1 LNS 123 and Yang Salbiah & Anor v. Jamil Harun [1981] 1 MLJ 292, where compensations are based on evidence and not speculation. The appellate court's role, is highlighted in Kanagesh Kumar 100 Mahendran v. Sadiah Muhammad Taib [2022] MLJU 23. It provides that the Defendants must demonstrate that the judge's award was wholly erroneous to justify reversing the decision. Appeal by Defendants [7] The Defendants appealed against the general damages awarded 105 for "intracranial bleeding – mild head injury with multiple bone fractures (left frontal bone fracture with pneumocranium, left medial orbital fracture, base of skull fracture), left periorbital hematoma (left periorbital swelling) with severe cerebral concussion, loss of consciousness, and retrograde amnesia." They argue that the 110 S/N gnXtrynpNEuJ71wwAzGw Sessions Court Judge had awarded an excessively high amount of RM90,000.00, they propose RM60,000.00. [8] The Appellants/Defendants proposed a reduction in the award to RM60,000.00, distributed as follows: a) Left Eye Periorbital Hematoma: RM3,000.00; 115 b) Left Medial Orbital Fracture: RM7,000.00; c) Mild Head Injury with Intracranial Bleeding, Severe Cerebral Concussion, Loss of Consciousness, and Retrograde Amnesia: RM40,000.00; and d) Frontal bone fracture with pneumocranium RM10,000.00. 120 [9] The Appellants/Defendants referenced several cases to support this proposal, including: • Subramaniam a/l K Muthiah v Lee Foo Chee [2016] 2 PIR [12] • Muhammad bin Hassan v Lam Ngit Choi & Anor [2017] 1 PIR [40] 125 • Abdul Hadi bin Abd Rozak v Mohamad Asyraf bin Mat Radzi [2018] 2 PIR [23] • Kaveta a/p Muniandy & Anor v Uthiya Kumar a/l Ramaiyah & amp; Anor (selaku pentadbir Malaysian Motor Insurance Pool) [2018] 2 PIR [15] 130 • Abdul Rashid bin Mohamed Hussain y Zulkifli bin Othman [2016] 1 PIR [29] S/N gnXtrynpNEuJ71wwAzGw [10] The Appellants/Defendants argued that these cases involved similar injuries, yet the awards were lower, justifying a reduction in the 135 current award. However, I noticed that the cases relied on by the Appellants/Defendants are between the year 2016 to 2018. In my view, they do not depict the current trend of awards for the injuries sustained. Appeal by Plaintiffs 140 [11] The Plaintiffs’ cross appeal is against the damages awarded. The Plaintiffs argue that the Sessions Court Judge erred in law and fact by combining the injuries of intracranial bleeding, multiple bone fractures, loss of consciousness, and retrograde amnesia into giving a global award of RM90,000. The Plaintiffs contend that each injury 145 should have been awarded separately. This is relying on the case of Seah Yit Chen v. Singapore Bus Service (1978) Ltd & Ors [1990] 1 LNS 56; [1990] 3 CLJ (Rep) 965, which states: “In my opinion, which approach is to be followed in each case must necessarily depend on the facts of the case, bearing in mind the 150 need to avoid overlapping. When the injuries sustained are related to the same part or function of the body, there should only be one award of damages, without any risk of overlapping: where the injuries sustained are to different parts of the body and affect different functions, as in the instant case where the plaintiff has 155 sustained injuries to the knee and to the spine, it would be appropriate to make a separate award for each head of damage.” S/N gnXtrynpNEuJ71wwAzGw [12] I agree with awarding separate awards for separate injuries as they are different body parts with distinct functions, necessitating a 160 separate assessment and award for each injury. [13] In respect of Intracranial Bleeding – GCS 11/15, Mild Head Injury with residual disabilities and cognitive impairment and severe cerebral concussion, the Plaintiffs propose on appeal, the sum of RM200,000.00, which is excessive. The cases cited by the Plaintiffs 165 are pertaining to severe head injuries, whereas the 1st Plaintiff suffered only a mild head injury. The GCS score of 11/15, based on the Hospital Permaisuri Bainun report, reflects the 1st Plaintiff’s condition a day after the accident, with the diagnosis being a mild head injury, not severe. Further, Dr. Fadzli Cheah's report indicates 170 a full GCS score of 15/15 during a later examination, with no significant intra-cranial abnormalities on the MRI. The reported injuries included a cerebral concussion with associated skull and orbital fractures, not a severe head injury. The medical reports classify the head injury as mild, due to transient loss of 175 consciousness and normal GCS scores. The Plaintiffs’ claim of severe head injury is erroneous. Therefore, I am not inclined to hold that the injury to the head was severe. Nevertheless, this court does take into consideration the comment by neurosurgeon Dr. Fadzly Cheah, who said this:- 180 “31. In this case, the cerebral concussion could be considered as severe as it was also associated with skull & amp; orbital fractures.

However, since the alleged motor vehicle accident, Encik Syamsul Amin continued to complain of forgetfulness, headache & dizziness and impaired vision of the left eye.” 185 S/N gnXtrynpNEuJ71wwAzGw [14] Therefore, I would award a sum of RM40,000.00 for Intracranial Bleeding – GCS 11/15, Mild Head Injury with residual disabilities and cognitive impairment and severe cerebral concussion. I rely on the case of Muhammad bin Hassan v Lam Ngit Choi & Anor 190 [2017] 1 PIR [40]. Though this is an old case but it is the closest resembling the injury sustained in the present case to award as a separate injury. [15] In respect of Loss of Consciousness, I award the sum of RM10,000.00 and I rely on the case of Wan Khizan Wan Ahmad & 195 Mohd Daud Abd Halim v. Haizan & 4 Ors [2023] 1 LNS 320. [16] In respect of Retrograde amnesia, I award the sum of RM5,000.00. I rely on the case of Mohamed Bin A Ismail & 2 Ors V Wong Wei Kiat [2022] 2 PIR [55]. [17] In respect of the injury to the right eye optic atrophy secondary to 200 optic neuropathy, resulting in total blindness of the right eye the award of RM90,000.00 by the Sessions Court is reasonable and appropriate and should be maintained. In support of the awarded sum, I rely on the case of Kanagesh Kumar A/L Mahendran V Sadiah Bt Muhammad Taib (2022) 1 PIR [42]. 205 [18] In respect of Multiple Bone Fracture – Left Frontal Bone Fracture With Pneumocranium, Left Medial Orbital Fracture, Base of Skull Fracture. Left Medial Orbital Fracture, I am fortified that this injury should be awarded separately and therefore according, l award the sum of RM100,000.00 based on the case of Muhammad Zahier 210 Bin Rahmat V. Weng Yew Min [2021] 1 PIR 4. S/N gnXtrynpNEuJ71wwAzGw [19] For the nose bleed, the Sessions Court awarded RM 2,000.00. I agree that this amount is reasonable and appropriate and should be maintained. [20] Lastly, in respect of a healed 2 cm scar over the left forehead. The 215 Sessions Court awarded RM 5,000.00 for this permanent scar, this award too, this court is of the view that it is reasonable and appropriate and should be maintained. Conclusion 220 [21] In conclusion, it is appropriate to award separate compensation for distinct injuries affecting different body parts, as they necessitate separate assessments. For the intracranial bleeding, mild head injury with residual disabilities, and cerebral concussion, his injuries were mild, not severe, as evidenced by medical reports. However, 225 the awards for multiple bone fractures should be separated and reasonably adjusted, which I have. The rest of the injury I do not see it fit to interfere as they are not too excessive or too low. Overall, the proposed reductions and separate awards is in accordance with decided case and ensure a fair assessment of the injuries sustained. 230 235 240 S/N gnXtrynpNEuJ71wwAzGw Date : 23 September 2024 Moses Susayan 245 MOSES SUSAYAN Judicial Commissioner High Court in Malaya at Ipoh, Perak 250 Counsel : 255 For the Appellants : Siti Hanida binti Abdul Kadir Federal Counsel [Civil Unit] Perak Legal Advisor Offices, Ipoh, Perak 260 For the Respondents : Anis Sabrina binti Mokhtar Advocates and Solicitor [Messrs The Chamber of Intan Ridzuwan] Sri Manjung, Perak 265 (Notice: This Grounds of Decision is subject to official editorial revision) 270 275 S/N gnXtrynpNEuJ71wwAzGw Headnotes Appeal on the global award for multiple injuries — whether separate awards are proper for distinct injuries such as intracranial bleeding, mild head injury, retrograde amnesia, and multiple fractures — distinct injuries 280 to different body parts necessitate individual assessments. Awards for the injuries are RM40,000 for intracranial bleeding, RM10,000 for loss of consciousness, RM5,000 for amnesia, and RM100,000 for multiple fractures of Left Frontal Bone fracture with Pneumocranium, Left Medial Orbital fracture, Base of Skull fracture, Left Medial Orbital fracture. 285 S/N gnXtrynpNEuJ71wwAzGw