LIM Choon Kit v Woo Zhong Min (BA-12B-74-07/2024)

WOO KWONG SHOON …PERAYU-PERAYU

LIM MEI HSIA ...RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI PETALING JAYA DALAM NEGERI SELANGOR, DARUL EHSAN

WOO KWONG SHOON …PLAINTIF-PLAINTIF

LIM MEI HSIA ...DEFENDAN-DEDENDAN) DIDENGAR BERSAMA DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA

LIM MEI HSIA

WOO KWONG SHOON …RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI PETALING JAYA DALAM NEGERI SELANGOR, DARUL EHSAN

WOO KWONG SHOON …PLAINTIF-PLAINTIF

LIM MEI HSIA ...DEFENDAN-DEDENDAN)

These are two appeals heard together, Appeal No. BA-12B-73- 07/2024 (Appeal 73) and Appeal No. BA-12B-74-07/2024 (Appeal 74). They arise from the same Sessions Court decision delivered after a full trial.

Parties are referred to as they were at the lower Court.

In Appeal 73, the Plaintiffs challenge the dismissal of their liability claim, and they also challenge the Sessions Court’s rejection of the First Plaintiff’s claim for loss of earnings. In Appeal 74, the Defendants challenge the Sessions Court’s assessment of quantum.

After considering the appeal record, the Grounds of Judgment of the Sessions Court Judge (SCJ), and the parties’ written submissions, I allow Appeal 73 on a limited legal basis. I am of the view that the SCJ dismissed liability primarily on a pleading point, without determining the real dispute that was fully ventilated at trial. That approach discloses a misdirection in principle and justifies appellate intervention. My intervention is confined to that legal misdirection. I do not reassess the evidence to make fresh findings on negligence, contributory negligence, or apportionment of liability. I also do not disturb the SCJ’s findings on quantum, including the rejection of loss of earnings. I dismiss Appeal 74, as the Defendants have not shown any error of principle warranting appellate interference with the discretionary assessment of damages.

The Defendants now appeal to the Court of Appeal, and below are my grounds of judgment.

The First Plaintiff was involved in a road traffic accident involving a motor vehicle (VE 1515) driven by the First Defendant. The accident resulted in serious injuries to the First Plaintiff, who is a person with disability (OKU). The Second and Third Plaintiffs are his parents.

The Plaintiffs commenced proceedings in the Sessions Court alleging that the negligence of the First Defendant caused the accident. In the Statement of Claim, the Plaintiffs pleaded that the First Plaintiff was walking along the road shoulder at the time of the accident. The Defence denied negligence and pleaded, in the alternative, contributory negligence on the part of the First Plaintiff. The Defence alleged that the First Plaintiff crossed the road without due care.

At trial, evidence was led by both parties. The Plaintiffs’ witnesses, including an independent eyewitness, gave evidence that the First Plaintiff was crossing the road at the time of the accident. Evidence was also adduced regarding the surrounding area, described as a residential area with traffic, as well as the damage to the Defendant’s vehicle and the position where the vehicle came to a stop after the collision. The Defendants maintained that the First Defendant was driving within the speed limit and that the accident occurred suddenly when the First Plaintiff crossed the road.

After the close of evidence, the Plaintiffs applied to amend their Statement of Claim (Enclosure 69) to align the pleadings with the evidence led at trial, namely that the First Plaintiff was crossing the road. The SCJ dismissed that application.

Upon conclusion of the trial, the SCJ subsequently dismissed the Plaintiffs’ claim on liability. The SCJ held that the Plaintiffs were bound by their pleadings and that the variance between the pleaded case and the evidence was material and fatal. The SCJ also rejected the Plaintiffs’ claim for loss of earnings on the basis that it was not sufficiently proven. The Court proceeded to assess other heads of damages.

The Plaintiffs appealed against the dismissal on liability and against the rejection of loss of earnings in Appeal 73. The Defendants appealed against the assessment of quantum in Appeal 74.

The SCJ dismissed the Plaintiffs’ claim on liability.

The SCJ found that the Plaintiffs’ pleaded case was that the First Plaintiff was walking along the road shoulder at the time of the accident. However, the evidence led at trial was that the First Plaintiff was crossing the road. The SCJ treated this inconsistency as material.

The SCJ held that the Court was bound to decide the case based on the pleadings and that evidence which departed from the pleaded case could not be relied upon. On that basis, the SCJ concluded that the Plaintiffs had failed to prove negligence as pleaded.

The SCJ dismissed the Plaintiffs’ application to amend the Statement of Claim to align the pleadings with the evidence led at trial. Following the refusal of the amendment, the SCJ treated the variance between pleadings and evidence as fatal to the Plaintiffs’ claim.

In light of the dismissal on liability, the SCJ rejected the Plaintiffs’ claim for loss of earnings. The SCJ found that the Plaintiffs had not adduced sufficient evidence to prove actual or future loss of earnings on a balance of probabilities.

The SCJ nevertheless proceeded to assess other heads of damages, which formed the subject of the Defendants’ appeal on quantum.

Based on the parties’ written submissions, the issues raised for determination in these appeals are as follows.

Whether the SCJ erred in law by dismissing the Plaintiffs’ claim on liability solely on the basis of a variance between the pleadings and the evidence led at trial, without determining the real dispute that was fully ventilated between the parties.

Whether the SCJ misdirected himself in refusing the Plaintiffs’ application to amend the Statement of Claim and in treating that refusal as fatal to the entire claim, without considering prejudice or the interests of justice.

Whether the SCJ failed to evaluate the evidence as a whole by focusing narrowly on pleading inconsistency.

Whether the SCJ erred in rejecting the Plaintiffs’ claim for loss of earnings on the ground that it was not sufficiently proven.

Whether the SCJ’s assessment of damages was based on wrong principles or was manifestly excessive to justify appellate interference, as contended by the Defendants in Appeal 74.

Whether the alleged errors, taken individually or cumulatively, justify appellate intervention. Submissions of the Parties Plaintiffs’ Submissions

The Plaintiffs submit that the SCJ erred in law by dismissing the claim on liability solely based on a variance between the pleadings and the evidence, without determining the real dispute that was fully ventilated at trial.

They contend that although the Statement of Claim pleaded that the First Plaintiff was walking along the road shoulder, the entire trial proceeded on the basis that the First Plaintiff was crossing the road. They emphasize that the Defence itself pleaded contributory negligence on the footing that the First Plaintiff was crossing the road.

The Plaintiffs submit that in these circumstances, the Defendants were not taken by surprise and suffered no prejudice. They argue that the SCJ placed undue emphasis on pleading form and elevated technical non-compliance over substantive justice.

The Plaintiffs further submit that the SCJ misdirected himself in refusing the application to amend the Statement of Claim and in treating that refusal as fatal to the claim, without considering whether the amendment was necessary to determine the real issues in controversy.

They argue that the SCJ failed to evaluate the evidence as a whole, including independent eyewitness testimony, evidence from the surrounding area, and circumstantial evidence relied on to infer negligence.

In Appeal 73, the Plaintiffs submit that the SCJ erred in rejecting the First Plaintiff’s claim for loss of earnings. They contend that the evidence, including witness testimony and rehabilitation reports, was sufficient to establish a modest monthly income on a balance of probabilities.

In response to Appeal 74, the Plaintiffs submit that the SCJ’s assessment of damages was a proper exercise of judicial discretion. They argue that the Defendants have not shown any error of principle or that the awards were manifestly excessive, and that mere disagreement with the quantum awarded does not justify appellate interference. Defendants’ Submissions

The Defendants submit that the SCJ made no appealable error and correctly dismissed the Plaintiffs’ claim on liability. They argue that the Plaintiffs are bound by their pleadings, and that the variance between the pleaded case and the evidence led at trial was material and fatal.

They contend that the Court cannot decide a case on an unpleaded version of facts, and that to do so would prejudice the Defendants and offend principles of a fair trial. They rely on authorities emphasizing strict adherence to pleadings.

The Defendants further submit that the SCJ was entitled to refuse the Plaintiffs’ late application to amend the Statement of Claim, and that no sufficient justification was shown for allowing the amendment at that stage of the proceedings.

They argue that, following the rejection of the amendment, the SCJ was correct to decide the case on the pleaded version, which the Plaintiffs failed to prove.

The Defendants submit that the SCJ did evaluate the evidence and found the Plaintiffs’ witnesses to be inconsistent and unreliable. They contend that these are findings of fact which an appellate court should be slow to disturb.

On loss of earnings in Appeal 73, the Defendants submit that the SCJ correctly rejected the claim for want of proof. They argue that loss of earnings must be strictly proven and that the Plaintiffs failed to discharge that burden.

In Appeal 74, the Defendants submit that the Sessions Court’s awards were excessive and not supported by comparable authorities. They argue that the Court failed to properly align the quantum awarded with decided cases and that appellate interference is therefore justified. Analysis and Findings Appellate approach and scope of intervention

These are appeals from a decision after a full trial. I accept the general principle relied upon by the parties that findings on liability are findings of fact, and an appellate court should not interfere merely because it may have reached a different view on the evidence (see Sivalingam Periasamy v Periasamy & Anor [1995] 2 MLRA 432).

The Defendant emphasize that the burden remains on the Plaintiffs to prove negligence as pleaded (Wong Thin Yit v Mohamed Ali [1971] 1 MLRA 483).

In the Federal Court case of Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors [2020] 6 MLRA 193, Zabariah Mohd Yusof FCJ had explained that an appellate panel can only set aside a trial court’s factual finding which is a “plain” factual error as understood in the following two cumulative circumstances:

the learned trial court’s finding of fact cannot be reasonably explained or justified; and

no reasonable trial judge could have arrived at the factual finding.

In the present case, I am of the opinion that where the trial court disposes of the claim on a wrong principle, or adopts an approach that prevents a proper determination of the real dispute ventilated at trial, appellate intervention is justified.

I refer to the Federal Court case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 1 MLRA 95, where it was held that a trial judge is required to perform a proper “judicial appreciation” of the evidence, which involves assessing, weighing, and providing reasons for accepting or rejecting evidence. If a trial court fails to conduct such an appreciation, thereby adopting an approach that fails to determine the real dispute, the decision is “plainly wrong” and justifies intervention.

In this appeal, the central question is not whether this Court prefers one witness over another. The question is whether the SCJ dismissed the claim on an incorrect pleading approach in circumstances where the parties had, in substance, tried the case on a different factual footing without surprise or prejudice. Pleadings versus evidence, and whether the variance was fatal

The SCJ dismissed liability primarily because the Plaintiffs pleaded that the First Plaintiff was walking along the road shoulder. Still, the evidence led at trial was that he was crossing the road. The Defendants support that approach and rely on the pleading “gold standard” line of authorities, namely that the Court should not displace the case pleaded and decide the matter on an unpleaded case. The Defendants cited, among others, Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152 (Supreme Court) as the “gold standard”, and cases such as Janagi v Ong Boon Kiat [1971] 2 MLJ 196 (Federal Court) and Recaliva Design & Steel (M) Sdn Bhd v Vista Access Sdn Bhd [2009] 6 MLJ 1 (Federal Court).

I agree with the Defendants that, as a general rule, parties are bound by their pleadings and the trial should be confined to the pleaded issues. The Defendants also cited Tan Sri Norian Mai & Anor v Suzana Md Aris [2015] 6 MLJ 685 (Federal Court), which adopts the same principle and refers to Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 (House of Lords) on fairness and natural justice in pleading discipline.

However, those principles do not operate in a vacuum. They serve a specific rationale: to prevent surprise, prejudice, embarrassment, or a party from being misled by evidence that departs from pleaded material facts.

The Plaintiffs rely on Superintendent of Lands and Surveys, 4th Division v Hamit b Matusin & Ors [1994] 3 MLJ 185 (Supreme Court) for the proposition that if a party is truly taken by surprise, it must object when the evidence emerges, and the Court will then uphold such a timely objection. Where a party fails to object, the circumstances may indicate there is no surprise.

Critically, the Plaintiffs’ supplementary submissions place strong reliance on Siti Aisha bte Ibrahim v Goh Cheng Hwai [1982] 2 MLJ 124 (Federal Court). They say the facts are closely analogous: the Plaintiff pleaded she was walking along the proper side of the road, but gave evidence she was crossing the road, and the Defendant was not misled because, from the outset, it was the Defendant's case that she was crossing. They also rely on Ang Koon Kau & Anor v Lau Piang Ngong [1981] 1 MLJ 183 (Federal Court), applying the principle that evidence at trial can, in appropriate circumstances, overcome defects in pleadings if it prevents surprise.

On the record before me, this is the decisive point. The Plaintiffs submit, and the record supports, that the trial was conducted on the basis that the First Plaintiff was crossing the road. The Plaintiffs highlight that the Defence itself pleaded contributory negligence premised on crossing. In that setting, the pleaded variance did not operate in the usual way, because the Defendants themselves were not taken by surprise, and the very factual premise criticized by the SCJ was already embedded in the Defence case theory.

I therefore find that the SCJ misdirected himself by treating the variance as automatically fatal, without first addressing the controlling question on which both sides’ authorities turn, namely, whether the Defendants were misled or prejudiced, and whether the case was in substance fully tried on the “crossing” version. The amendment application and the Sessions Court’s approach

The Plaintiffs filed an application to amend the Statement of Claim to align the pleadings with the evidence that the First Plaintiff was crossing the road. The Plaintiffs argue that the SCJ did not give reasons in its Grounds of Judgment for refusing the amendment, and they characterize this as a non-speaking judgment.

The Defendants oppose the amendment and submit that late amendments require strong justification, and delay is a relevant and serious factor. They cite authorities including Abu Bakar bin Mohamed Zain v Mohamed Zain bin Hassan & Ors [1998] 5 MLJ 501 (Federal Court) and stress that the Court will be reluctant to allow amendments at a late stage unless there is strong justification. They also rely on authorities emphasizing case management objectives and the need for just and expeditious disposal, and point to cases where late amendments were refused due to prejudice and disruption, including Dr Thiagarajah Retnasamy & Anor v Vijayakanchan & Ors [2003] 2 MLJ 291 (Federal Court) and Christopher ak Bandi v Public Prosecutor [2018] 3 MLJ 65 (Federal Court).

I accept the Defendants’ legal propositions on late amendments as general principles. Nevertheless, the difficulty in this case is not that the SCJ refused an amendment. The difficulty is what the SCJ did next.

Once the amendment was refused, the SCJ treated that refusal as dispositive of liability without engaging with whether the Defendants were in fact misled or prejudiced, and without resolving the real dispute that had been litigated throughout the trial. The Plaintiffs' authorities, especially Siti Aisha and Ang Koon Kau, address precisely this type of circumstance where the defence case proceeds on the same factual footing as the evidence, such that the pleaded defect does not create surprise or unfairness.

In my view, this is where the SCJ's approach became legally unsafe. Pleading discipline is a tool of fairness. Where the trial has proceeded on the same factual premise, and the Defence itself has pleaded that premise, a mechanical reliance on the Plaintiffs’ pleading to dismiss liability risks elevating form over substance in a way that defeats the underlying rationale of the rules. This constitutes a misdirection in principle.

In support of the above, I refer to the case of The Carbon Company Sdn Bhd v Ng Lee Hoon [2017] 3 MLRA 650, where the Court of Appeal explicitly stated that “As pleading rules were one relating to fairness, the court should at all times maintain the fairness process.” While this case emphasizes that parties should generally be held to their pleadings to ensure fairness, it establishes the underlying rationale that the rules exist to prevent surprise and prejudice, not to be used as a mechanical trap.

More so, in a Federal Court case of Melawangi Sdn Bhd v Tiow Weng Theong [2020] 2 MLRA 391, it was held that pleadings must be looked at as a whole and in their proper perspective. The Court refused to dismiss a claim on a narrow pleading point because the “defendant was not caught off guard on this issue and was evidently not prejudiced.” This supports my view that if the Defence itself pleaded the same factual premise, they cannot claim to be “caught off guard” by a slight variance in the Plaintiff’s pleading. Evaluation of evidence, and whether the SCJ failed to decide the real dispute

The Plaintiffs submit that the SCJ failed to assess the evidence holistically because it stopped at the pleading point. The Plaintiff rely on evidence and matters such as the severity of vehicle damage, the allegation of excessive speed, and the evidence of the MBPJ witness that a collision could have been avoided if the vehicle had been travelling at 50 km/h. They also cite George Lai Weng Kee @ George Lai Weng Kee v Aryal Tek Raj [2017] MLRHU 1615, in which the High Court considered damage and surrounding circumstances to support findings on speed and, separately, on contributory negligence where a pedestrian did not use a designated crossing.

The Defendants reply that the SCJ did assess evidence and gave reasons why it rejected the Plaintiffs’ case, including the weaknesses and contradictions in SP1’s evidence. They also address SP6 and contend that his evidence does not support the Plaintiffs’ theory, including admissions that there was no zebra crossing or speed breaker at the location and that priority is generally to motor vehicles.

I do not resolve these evidential disputes myself. I refer to them for a different reason. They demonstrate that the trial involved real and contested issues on negligence and contributory negligence. The Plaintiffs’ case on crossing was not a peripheral detail. It was the heart of how both sides conducted the trial. That is precisely why disposing of the claim on a narrow pleading mismatch, without first addressing prejudice and without determining the dispute as tried, is a misdirection. The consequence of the misdirection and the limits of this Court’s intervention

The Plaintiffs urged this Court to allow the appeal and to interfere with the SCJ’s dismissal of liability. The Defendants urged this Court to uphold the SCJ’s “finding of fact” and to treat the pleading point as fatal.

I allow Appeal 73 on the limited legal basis explained above. My intervention is grounded on a legal misdirection, not a reassessment of facts. I do not substitute my own factual findings for those of the SCJ. My intervention is confined to removing the legally flawed basis on which the claim on liability was dismissed.

This clarification is important because counsel pressed for a binary answer on ‘100% liability’. That is not what I decided, on the record. A finding of 100% liability would require a fresh evaluation of evidence, credibility, and contributory negligence. My decision does not do so. Any question as to the extent of liability would necessarily depend on factual findings on negligence and contributory negligence, which were not undertaken by this Court. To the extent counsel sought to characterize the consequence of this decision as one of ‘100% liability’, that characterization does not reflect the basis or scope of my decision, which is confined to correcting a legal misdirection. Loss of earnings in Appeal 73

The Plaintiffs appeal against the SCJ’s rejection of loss of earnings and rely on evidence and rehabilitation reports suggesting a monthly income of RM600. The Defendants submit that there was no error in rejecting that claim and rely on negligence authorities emphasizing that the onus is on the Plaintiff to prove negligence, and by analogy, the burden remains on the claimant to prove the head of loss.

I do not disturb the SCJ’s findings on quantum, including the rejection of loss of earnings. That is consistent with the limited legal basis of my intervention. I therefore do not substitute fact-sensitive assessments of income and loss, which are matters properly within the province of the trial court that had the advantage of assessing the evidence firsthand. Appeal 74 on quantum

Appeal 74 is the Defendants’ appeal on quantum. The Plaintiffs’ position, as adopted by reference to their trial submissions, is that the SCJ’s assessment should be maintained. The legal threshold for appellate interference on quantum is high because the assessment of damages is a discretionary exercise. The Defendants must show wrong principle, irrelevant considerations, failure to consider relevant considerations, or that the award is manifestly excessive or clearly erroneous.

On the materials before me, the Defendants have not demonstrated that the SCJ’s discretionary assessment of damages meets that threshold. Mere disagreement with the amount is insufficient. I refer to the case of Kovalan Rajoo v Hanif Muhamad Pauzi [2015] MLRHU 938, where the High Court specifically addressed the issue of “mere disagreement,” stating: “A preference or an opinion of what would be a fair amount for an award of damages that were not in sync with the trial Judge’s award of damages could not be a ground for an appellate Court to reverse the trial Judge’s decision... The appellate Court should only entertain an appeal that was premised on the principles of law... and not one that was based on what was or was not fair to the party appealing.”

I therefore dismiss Appeal 74.

Before concluding, I should address a matter of clarification. On the day the decision was delivered orally, there was some confusion arising from the exchange with counsel as to the consequence of allowing Appeal 73, in particular, whether it amounted to a final finding of liability against the Defendants. I therefore take this opportunity to state my findings clearly and in structured terms.

First, Appeal 73 is allowed on a limited legal basis. I find that the SCJ misdirected himself in law by dismissing the Plaintiffs’ claim on liability solely on a pleading variance, without determining the real dispute that was fully ventilated at trial and without addressing the question of prejudice. That legal misdirection justifies appellate intervention.

Second, my intervention is confined to correcting that legal error. I do not reassess the evidence, I do not substitute findings of fact made by the Sessions Court, and I do not make any final finding on negligence, contributory negligence, or apportionment of liability.

Third, the findings of the SCJ on quantum are not disturbed. This includes the rejection of the Plaintiffs’ claim for loss of earnings. Those findings remain intact, consistent with the limited scope of my intervention.

Fourth, Appeal 74 is dismissed. The Defendants have not shown that the SCJ’s assessment of damages was based on a wrong principle or that the awards were manifestly excessive or clearly erroneous. Mere disagreement with the quantum awarded is insufficient to justify appellate interference.

In summary, Appeal 73 is allowed on the limited legal basis identified, Appeal 74 is dismissed, and no remittal or substitution of factual findings is made.

For the reasons stated above, Appeal 73 is allowed in part. The decision of the SCJ dismissing the Plaintiff’s claim on liability is set aside. However, the appeal is dismissed in respect of quantum, and the findings of the SCJ on quantum remain undisturbed. Appeal 74 is dismissed in its entirety.

Costs in the sum of RM5,000.00 are awarded to the Plaintiffs for both appeals, subject to allocator. Dated this: 26th March 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Appelants :