1. ) LIM Jun Wu v 1. ) Tinah Binti Osman (JA-12B-10-04/2024)

1.

LIM JUN WU YEOH HOCK KOON … APPELLANTS

1.

TINAH BIN OSMAN NORFAIZAN BINTI KARIM …RESPONDENTS (IN THE SESSION COURT IN JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA

1.

TINAH BIN OSMAN NORFAIZAN BINTI KARIM

1.

LIM JUN WU YEOH HOCK KOON ...DEFENDANTS GROUNDS OF JUDGMENT S/N wxstn9nEUu4wdyBG1pn8g

This is an appeal by the Appellants against the quantum in accordance with the Order of the Session Court Judge (“SCJ”) dated 28.03.2024.

After having read the grounds of the judgment of the SCJ, the Appeal records and Parties’ written submissions, I dismissed the Appeal with the costs of RM5,000.00 subject to allocator fees, to be paid by the Appellants to the Respondents within fourteen (14) days from the date of the Order.

Below are the grounds of my decision.

The First Respondent (“R1”) at the material time was the rider of a motorcycle bearing registration No: JGY 7483 and Second Respondent (“R2”) is the daughter of R1 who has taken care of R1 after the accident. The First Appellant (“A1”) was the rider of a motorcycle bearing registration No: JJN 8616 at the material time and the Second Appellant (“A2”) is the registered owner of the said motorcycle.

The case involves a road accident between the two (2) motorcycles that took place on 28.11.2018. As a result of the accident, R1 suffered severe injuries.

The Parties have reached an agreement in respect of the issue of liability where both parties will bear the liability of 50% respectively. S/N wxstn9nEUu4wdyBG1pn8g

The SCJ had delivered her decision on 28.03.2024 and has awarded quantum on 100% as follows (see pages 6-9 of the Supplemental

RM241,500.00 awarded as General Damages;

RM48,535.00 awarded as Special Damages;

RM537,913.90 awarded for Cost of Care;

RM6,720.00 for loss of EPF contribution by the employer;

RM24,200.00 for Actual Loss of Earnings;

RM41,800.00 for Future Loss of Earnings;

RM1,066.66 for cost of Physiotherapy;

RM31,666.66 for Cost of Future Surgeries;

RM36,820.00 for Cost of Future Medications:

RM25,000.00 for Pain and Suffering (Past Surgeries);

RM20,000.00 for Pain and Suffering (Future Surgeries);

RM96,000 for Actual Loss of Earnings by the R2;

RM25,415.10 as cost of this action;

Interest rate of 5% per annum on General Damages;

Interest rate of 2.5% per annum on Special Damages; and

Interest rate of 5% per annum on the Judgment Sum.

Dissatified with the quantum awarded by the SCJ, the Appellants filed notice of appeal to appeal against the amount of the awards, in particular general damages and special damages.

During the hearing of the appeal on 04.09.2025, the Appellants’ solicitor did not attend the Court with the excuse that they have overlooked the date of hearing. I have proceeded the hearing on 04.09.2025 with the presence of the Respondents’ solicitor. I have S/N wxstn9nEUu4wdyBG1pn8g considered both parties’ written submissions and dismissed the Appellants’ appeal with costs.

The issues for the determination of this Court is whether the amount of quantum awarded against the Appellants is manifestly excessive.

The Court of Appeal in the case of Sivalingam s/o Periasamy v. Periasamy & Anor [1995] 3 MLJ 395 when stating the principles governing appeal has held that— “It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the trial court to which the law entrusts the primary task of evaluation of the evidence. However, the appellate court has a duty to intervene where a trial court has so fundamentally misdirected itself, that one may say that no reasonable court which had properly directed itself and asked the correct question would have arrived at the same conclusion.”. [Emphasis added]

Further, I referred to the case of UMW Toyota Motor Sdn. Bhd. V Allan Chong Teck Khin & Anor. [2021] 5 CLJ 193 where the Court of Appeal has reiterated the principles of appellate intervention where it stated as follows: “Principles Of Appellate Intervention [28] Foremost on our minds are the two tests, namely, “plainly wrong” test S/N wxstn9nEUu4wdyBG1pn8g and “insufficient judicial appreciation of evidence” test for appellate interference in a subordinate court’s finding. In respect of the two tests, the Court of Appeal held as follows in Lee Ing Chin Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97 at pp. 98 to 99:

Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of the evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. Where contemporaneous documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against these. He must also test the evidence of a witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence may be set aside on appeal …”. [Emphasis added]

Based on the principles laid down above, it is trite law that the Court will be slow in interfering the findings made by the lower court and will only interfere if the trial judge acted on a wrong principle of law or has insufficient appreciation of the evidence before them.

For this purpose, I have to examine the evidence and exhibits presented during the trial and also the grounds of judgment of the SCJ. S/N wxstn9nEUu4wdyBG1pn8g Whether the amount of quantum awarded against the Appellants is manifestly excessive

Generally, an appellate court would only intervene on issues of quantum when it is found that the award is given on the wrong principle or is given under “misapprehension of fact” or incorrect estimate.

In the case of Rasidin bin Partorjo v. Frederick Kiai [1976] 1 LNS 123, t he Federal Court ruled that— “The principle upon which an appellant court will interfere with an award of damages made by a judge sitting alone has been stated by Lord Wright in Davies v Powell Associated Collieries Ltd. At pages 616-7 as follows: “Where an award is that of the judges alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on the question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer J in Flint v Lovell. In effect the court, before it interferes with an award of damage, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons, made wholly erroneous estimate of damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked of the appellant court is to interfere, whether on the ground of excess or insufficiency.” S/N wxstn9nEUu4wdyBG1pn8g Thus the appellant here has to convince us that the learned trial judge had acted on a wrong principle of law or had misapprehended the facts or had for other reasons made a wholly erroneous estimate of the damage suffered.". [Emphasis added]

In the case of Hang Jong Juan v. Tan Yeo Soon [1986] 2 MLJ 5 where the Court of Appeal held that— "In an appeal against the quantum of damages, it is settled law that the onus on the appellant is a heavy one and it must be established plainly that the trial judge's award was a wholly erroneous estimate.". [Emphasis added]

Based on the principles laid down in the above cases, the Court will interfere with the award of damages if it is proven that the SCJ has acted on wrong principles of law or has misapprehended the facts. The burden is on the Appellants to prove the award by the SCJ has been erroneously estimated.

The Appellants submitted the general damages awarded by the SCJ for the injuries suffered by R1 was manisfestly excessive for the following injuries:

Post traumatic osteoarthritis on right and left wrist joint

The Appellants submitted that there shall be no award on this injury based on the specialist report prepared by Datuk Dr. Preba dated 16.06.2022 that the risk of osteoarthritis at the wrist would be reduced if R1 undergoes the corrective osteotomy surgery. However, the R1 S/N wxstn9nEUu4wdyBG1pn8g informed that she did not want to undergo such procedure. The said specialist report also stated the osteoarthritis at the knee is a pre-existing condition.

The Respondents on the other hand argued that none of the initial medical report stated R1 has refused any form of treatment i.e. the corrective osteotomy surgery. R1 has adhered to every single treatment suggested by the doctors in Hospital Sultan Ismail, Johor Bahru after the accident. Further, this issue was never raised by the Appellants during the trial.

According to the SCJ on page 7 of SROA that she has considered R1 suffered osteoarthritis on her left knee and osteoarthritis at both of her wrist and thus awarded damages of RM10,000.00. The award was based on the compendium which suggested RM5,000.00 for osteoarthritis.

In this regard, I agree with the Respondents’ that the although the osteoarthritis on her left knee is a pre-existing condition, the injuries sustained by R1 after the accident has caused the osteoarthritis on her left knee to be accelerated and aggravated. This has been causing more pain and suffering to R1. This is supported by the opinion of Dr. Khoo Shaw Ming which stated in page 170 of Record of Appeal Second Jilid (“2nd ROA”) as follows: “... The accident and injuries have aggravated the osteoarthritis at her left knee with persistent pain and restricted range of motion. She need regular medication for her left knee OA...”.

Therefore, I find the award of RM10,000.00 by the SCJ is fair, S/N wxstn9nEUu4wdyBG1pn8g reasonable and in accordance to the current trend for awarding damages for osteoarthritis.

(ii) Multiple Pelvic Fracture And Right Acetabulum Fracture

The Appellants submitted that the SCJ has erred in law in awarding RM80,000.00 for multiple pelvic fracture and RM30,000.00 for right acetabulum fracture as the SCJ should not award separate award for overlapping injuries. It is trite law there should be one award of damages for overlapping injuries.

The Appellants argued that the acetabulum is part of the pelvis and thus, there shall be one global award for multiple pelvic fracture and right acetabulum fracture. Hence, the Appellants submitted that the sum of RM80,000.00 for both multiple pelvic fracture and right acetabulum fracture is fair and reasonable,

The Respondents argued that the fracture of right acetabulum separately from the multiple pelvic fracture as the multiple pelvic fractures involving a list of other fractures which are supported by the case laws that are specific and similar to the injuries.

The Respondents further submitted these injuries should be awarded separately based on the permanent disabilities and also to show the level of severity.

I find that the award RM80,000.00 for multiple pelvic fracture and RM30,000.00 for right acetabulum fracture by the SCJ are to reflect the level of severity for each injury suffered by R1. If all the injuries were to be considered as one award, the amount of the damages would be higher than the amount awarded by the SCJ. Therefore, I S/N wxstn9nEUu4wdyBG1pn8g rule that the amount of the award is fair and reasonable and there is no necessity to revise such amount.

(iii) Cost of Care

The SCJ has awarded the sum of RM537,913.90 as the cost of care (home care with domestic helper). The calculation of the award is stated in page 10 of SROA.

The Appellants submitted that there is no need for a domestic helper in the present case based on the following reasons:

according to the Appellants' specialist, the R1 has improved substantially;

the Barthel Index Score of the R1 has increased from 65/100 to 76/100;

the Appellants' specialist stated that the R1 does not need a domestic helper; and

R2 has returned to work as R1 has improved and R1 does not need full-time care anymore.

Alternatively, the Appellants argued that if the Court rules that R1 needs a domestic helper, then a part-time domestic helper is sufficient and thus, the Appellants suggested the sum of RM173,304.63 being 1/3 of the sum awarded by the SCJ.

The Respondents argued that R1 needs the help of R2 and her husband to perform her daily activities such as going to the washroom, moving from one place to another within the house due to S/N wxstn9nEUu4wdyBG1pn8g permanent disabilities of her both hands. This is supported by the specialist report prepared by Dr. Ramnan Jeyasingam in pages 173- 174 of 2nd ROA.

I have considered the disabilities of R1 where she needs a full time domestic helper for her daily activites and not part-time domestic helper. She needs to perform the daily activites with the aid of the full time domestic helper such as going to washroom and bathing from time to time. I have taken into account that R2 needs to return to work and her husband is getting older and no longer capable to take care of R1, thus a full time domestic helper would help to lift their burdens.

I find that the SCJ has considered all those factors in awarding such damages and I rule that the award of of RM537,913.90 is not manisfestly excessive and it is reasonable.

(iv) Future Medical Expenses

The SCJ has awarded total sum of RM69,5553.32 for future medical expenses as follows:

1/3 of the sum of RM95,000.00, which is RM31,666.66 as the costs for future surgery;

1/3 of the sum of RM110,460.00, which is RM36,820.00 as the costs for future medication; and

1/3 of the sum of RM3,200.00, which is RM1,066.66 as the costs of physiotherapy.

The Appellants argued that the award for future medical expenses should not be allowed as R1 has received treatment at Hospital Sultan Ismail and is entitled to the free treatment or minimum treatment costs S/N wxstn9nEUu4wdyBG1pn8g as she holds OKU card. Further, there is no evidence produced to show that those treatments are not available in the government hospital.

The Appellants further argued that the SCJ has failed to considered those factors and has decided the amount of damages based on the quotation provided by the private hospital.

The Respondent submitted that the future surgeries and medications were suggested by Dr. Khoo Shaw Ming, the Consultant Orthopaedic and Trauma Surgeon from KPJ Pasir Gudang Specialist Hospital as stated in pages 168 to 170 of the 2nd ROA.

The Respondent further submitted the Appellants’ specialist suggested that R1 should undergo corrective osteotormy surgery. Such treatments were not provided by the Hospital Sultan Ismail. Therefore, it is justifiable for R1 to claim those future medical expenses as suggested by the Dr. Khoo from the private hospital.

With regards to physiotherapy, I find that R1 had given her evidence in Session Court that she has attended 41 times of physiotherapy at Hospital Sultan Ismail and is still going for this treatment at the said hospital. She informed that it can be dangerous for her to perform these therapy workouts without any supervision (see page 85 of the 2nd. ROA).

Regarding the claim for cost of future surgeries, I refer to High Court decision in the case of Hasniyati Hassan & Anor v Keraiaan Malaysia [2022] 1 CLJ 5 where it was decided that— S/N wxstn9nEUu4wdyBG1pn8g “D submitted that the Plaintiffs could get free healthcare by virtue of P2's orang kurang upaya status. But D did not bring any evidence to show that the Government will guarantee free treatment and services in terms of quality, quantity and intensity, to P2, as recommended by the experts. My view is this, there is no legislation compelling the Government to provide public healthcare. Neither is the policy of Government-funded healthcare cast in stone. When even legislation may be amended, what more mere policy? The victim of a tort should not be subject to uncertainty about the future of his or her treatment and rehabilitation. The issue of resorting to public healthcare is an issue of mitigation of damages. The burden is on the tortfeasor to prove what funding the victim can reliably obtain from the government...". [Emphasis added]

Further, I refer to the case of Court of Appeal in Pantai Medical Centre Sdn. Bhd. v Fareed Reezal Arund & Another Appeal [2022] 4 MLJ 529 where it was held that— “[35] We considered too that damages are assessed on a once and for all basis. As stated in Nurul Husna Muhammad Hafiz & Anor v. Kerajaan Malaysia & Ors [2015] 1 CU 825, 850: …The award of future damages or cost of future care in Malaysia is done on once and for all assessment basis, unlike in England where damages may be assessed periodically, following judgment on liability. Thus in Malaysia the victim cannot return to Court in the future to claim more damages because his or her injuries have worsened, or if unexpectedly the victim has more needs and the original award had proved inadequate…”. [Emphasis added]

Based on the evidence presented during the trial and the authorities above, I find that R1 is free to seek the future treatment in the private hospital. R1 is not allowed to claim those future expenses after the S/N wxstn9nEUu4wdyBG1pn8g decision made in this suit. Hence, it would be fair for the R1 be awarded those future expenses. I find the awards by SCJ for the future medical expenses is fair, not wrong and in accordance with the current award trend.

Based on the above findings, I rule that the award of damages given by the SCJ is fair and reasonable. Hence, I rule that the awards decided by the learned SCJ remain the same.

I then dismissed the appeal filed by the Appellants with the costs of RM5,000.00 subject to the allocator fees, to be paid by the Appellants to the Respondents within fourteen (14) days from the date of the Order. Dated 20 October 2025. Signed by: SGD ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Appellant: Mr. Mohd. Apandi Messrs. Gan, Ho &Razlan Hadri Counsel/Solicitor For the Respondent: Mr. P. Chindaya Messrs Chindaya P. & Associates S/N wxstn9nEUu4wdyBG1pn8g