1. ) Meor Yussof Bin Mahadi v Mohd Dali Bin Sheck Dawood (NA-12BNCvC-17-08/2022)

BETWEEN MEOR YUSSOF BIN MAHDI …APPELLANTS

CHAN SOON TRANSPORT & TRADING SDN BHD AND MOHD DALI BIN SHECK DAWOOD …RESPONDENT IN THE SESSIONS COURT AT KUALA PILAH CASE NO: NA-A53KJ-6-01/2021 BETWEEN MOHD DALI BIN SHECK DAWOOD …PLAINTIFF

AND MEOR YUSSOF BIN MAHDI …DEFENDANTS

CHAN SOON TRANSPORT & TRADING SDN BHD JUDGMENT

The plaintiff at the court below was severely injured when the motorcycle he was riding collided with a motor trailer being driven by the first defendant. The motor trailer was registered in the name of the second defendant.

After a full trial of the action, the Sessions Court found the defendant 90% liable for the accident, and the plaintiff contributorily liable for 10%. The learned Sessions judge determined liability on a 100% basis to be RM276,947.20 in general and special damages.

The defendants appealed against both the determination of liability and the awards in respect of certain heads of damages. The parties are referred to here as they were before the court below. 29/05/2023 14:24:12 NA-12BNCvC-17-08/2022 Kand. 23 S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 2

The learned counsel for the defendants sought to assail the finding of fact by the learned judge that 90% of the liability for the accident ought to be apportioned to the defendants. According to counsel, the plaintiff ought to bear 50% of the liability on account of the fact that he was not riding on the left edge of his lane. The court was referred to the Road Traffic Rules 1959, which according to counsel established an obligation for drivers of motorcycles to keep to the left hand side of the left lane.

The evidence of the plaintiff in this case was that the collision had occurred in his lane, because the motor lorry driven by the first defendant had encroached into his lane. At trial, he marked the location of impact with an X in the sketch plan exhibited for the purposes of trial. The material portion of the sketch plan is reproduced below. (The plaintiff was travelling in the direction of Bahau, from the top of the sketch plan to the bottom.) S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 3 6. Rule 3(1) of the Road Transport Rules 1959 provides as follows: 3 Keeping to the left

Every vehicle shall ordinarily be driven on the left hand side of the road, that is to say that part of the road which lies between the centre thereof and the left hand edge of the road; and shall allow all traffic which is proceeding in the opposite direction to pass on the right hand side.

Based on the plain words of rule 3(1), it is clear to me that there is nothing in this provision that requires a motorist to keep to the left side of his lane. All that rule 3(1) provides is the general rule that all motorists are to drive on the left side of the road, leaving on-coming traffic to occupy the opposite side. The clarifying words in the rule is unequivocal that a motorist must keep between the centreline of the road and the left edge of the road. Nowhere does it state that a motorcyclist must keep to the left edge of his or her lane, as suggested by counsel for the defendants.

There is, in the Road Traffic Rules 1959, a requirement for vehicles to keep to the left side of their lane. However, this requirement, contained in rule 4, applies to all slow-moving vehicles, and not just motorcycles. Rule 4 provides as follows: 4 Vehicles driven at slow speed Every vehicle which is being driven at a slow speed shall be driven as close to the left hand side of the road as possible and shall at all times be driven in such manner as not to obstruct other vehicles at a faster speed.

The contention of counsel for the defendants is thus not made out. For the reasons explained above, the appeal on liability must be dismissed.

For completeness, I observe that there was nothing in the evidence before me that warranted appellate intervention regarding the finding of fact by the trial judge that the point of impact was at the location marked X in the sketch plan. Counsel for the defendants sought to argue that the plaintiff had not proven his assertion that the first defendant had attempted to overtake another motorcyclist at the time the accident happened. In my view, whether or not the defendant was attempting to overtake another motorcyclist did not detract from the finding of fact by the trial judge that the defendants’ motor lorry had encroached into the plaintiff’s lane and had thereby caused the accident. S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 4 GENERAL DAMAGES Hemopneumothorax and lung contusion 11. The learned trial judge awarded the following general damages to the plaintiff:

rib fractures: : RM70,000

hemopneumothorax and lung contusion: : RM25,000

The defendants mounted a challenge on the second award. It was argued that the amount awarded for hemopneumothorax and lung contusion was manifestly excessive.

The Revised Compendium of Personal Injury Awards published by the Bar Council suggests an award in the range of RM6,000 to RM7,500 for a hemopneumothorax injury. It can thus be observed that the sum awarded in this case significantly exceeded the maximum range suggested by the Compendium. The question that thus arises is whether there were any circumstances in the present case that justified such a large award?

The learned trial judge relied upon the case of Daniel Joy A Arokiasamy v Umpan Jaya1, where the Sessions Court allowed RM30,000 in damages for a bilateral lung contusion and haemothorax. The grounds of judgment of the Sessions Court in that case stated as follows:

Bilateral lung contusion and haemothorax [25] Peguam plaintif berhujah untuk jumlah RM40,000.00. Manakala peguam defendan berhujah untuk RM15,000.00. Mahkamah ini membenarkan sebanyak RM30,000.00 untuk kecederaan tersebut.

It can thus be seen that there was no cogent explanation given by the court in that case as to why the specific quantum was awarded. No reference was made to the Compendium in respect of this head of injury (although it may be observed that the Revised Compendium had not yet been published at the time of this decision.) 1 [2017] 2 PIR [26] S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 5 16. In that case, the plaintiff had suffered injuries to both lungs. By contrast, the plaintiff in the present case suffered contusion and hemopneumothorax only in his right lung.

It is apposite at this stage to remind ourselves of the principles to be applied in an appeal on the quantum of damages awarded for personal injury claims, mindful that determinations on quantum are findings of fact. In the case of Jamiah Holam v Koon Yin2, Hashim Yeop A. Sani J held as follows: As regards the appeal on quantum it is an established approach for a court exercising appellate jurisdiction to adopt that in an appeal on quantum unless it can be shown to the satisfaction of the Appellate Court that the award is extremely inconsistent with the discernible trend or that the award was made on some misapprehension of facts or on some erroneous assumption of law or fact, the Appellate Court should not interfere. Here there was no evidence to show that the magistrate went beyond the limits of decided authorities in awarding general damages.

In my considered view, in the absence of circumstances establishing the aggravated nature of the injuries, the trial judge ought not have made a determination on quantum that was far beyond the maximum amount suggested by the Compendium.

In the circumstances of the present case, taking into account that the plaintiff has suffered a contusion to the right lung in addition to the hemopneumothorax injury, I am of the view that the amount of RM10,000 would be an appropriate assessment of the damage occasioned to the plaintiff.

The appeal on the hemopneumothorax injury was thus allowed, with the amount assessed reduced from RM95,000 to RM80,000. Loss of earnings capacity 21. The learned Sessions judge had awarded RM50,000 for loss of earnings capacity. The plaintiff had initially claimed for RM100,000.

These losses were assessed as special damages. In my considered view, they ought to have been awarded as general damages instead. The distinction between general and special damages was explained by the Federal Court in the case of Ngooi Ku Siong v Aidi Abdullah3 in the following terms: 2 [1983] 1 MLJ 103 3 [1985] 1 MLJ 30 S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 6 General and Special Damages Distinguished. General damages refer to the damage which the law "implies in wrongs actionable per se" and is averred in general terms in the pleadings without the necessity of quantifying the amount. They include future loss of earnings as well as damages for pain and suffering and loss of amenities. They relate to items of damage whether pecuniary or non-pecuniary. Special damages on the other hand have to be specifically pleaded and strictly proved. They refer to past expenses and loss of earnings. The exact loss must be pleaded where the precise amount of item has become clear before the trial. Loss of future earnings or post-trial loss differs from pre-trial loss which comes under special damages. The reason that special damages have to be specifically pleaded is in order to comply with its object which is to crystallize the issue and to put the defendants on their guard and tell them what they have to meet when the case comes on trial. (See Domsalla v Barr [1969] 1 WLR 630 Phillips v Phillips (1878) 4 QBD 127, 139 and Ong Ah Long v Dr S Underwood [1983] 2

The Federal Court explained in Ngooi Ku Siong v Aidi Abdullah that both loss of future earnings and loss of earning capacity are items of general damages.

Be that as it may, I am of the view that the classification of loss of earnings capacity as special damages by the court below bears no practical consequences on the merits of the present appeal.

It was advanced for the defendants that this award was unjustified as the specialist reports did not state that the plaintiff was incapable of performing any work at all. Specifically, the reports proffered the views that the plaintiff “should be able to perform jobs which light duty in nature”4 and was suitable for “sedentary work only”5. As I understood submissions of counsel for the defendants, they were of the opinion that loss of earnings capacity ought not have been awarded at all.

The test to be applied in determining whether loss of earnings capacity is claimable is explained in the following passage of the decision of the Supreme Court in Yang Yap Fong v Leong Pek Hoon6: The principle applicable to future loss of earning capacity and its distinction with future loss of earnings are explicitly discussed in Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30 by the Federal Court. The proper test to be applied is whether some time in the future, due to the effect of the injuries sustained by him, the plaintiff will face a substantial risk of either losing his job or getting a less paid 4 ROA/146 5 ROA/119 6 [1987] 2 MLJ 201 S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 7 employment. It does not matter whether the plaintiff was in employment or not at the time of the trial so long as the Court is satisfied from evidence that there is a real or substantial risk that his earning capacity will be affected in the future.

The plaintiff in this case had been a restaurant worker. According to the evidence received at trial, his work as a kitchen assistant had comprised primarily of tossing roti canai—a job that I observe requires not inconsiderable skill. He had also been tasked to knead roti canai dough and to fry the roti, as well as to prepare the gravy for rojak The plaintiff attended school only until Form Five. At the time of trial, he was 52 years old. He testified at trial that the only jobs he knew were how make roti canai and rojak.

The specialist reports adduced at trial were in agreement that the plaintiff would not be able to return to his previous job. Indeed, from the time of the accident on 27 July 2000 until the date of trial, the plaintiff had remained unemployed. He testified that he was no longer able to knead dough, that he continued to have difficulties breathing due to his fractured ribs and that his hands shook which made it difficult for him to carry things.

In my judgment, the learned Sessions judge was right to rule that the plaintiff was entitled to loss of earnings capacity. The plaintiff had up until the date of his accident been working in a restaurant making roti canai, and there was uncontroverted evidence that, as a result of the accident, he was longer suited to such work. His age combined with educational background meant that it was unlikely that he would be able to retrain himself for an office or desk job. There was thus a real or substantial risk that his earning capacity will be affected in the future, satisfying the test propounded by the Supreme Court in Yang Yap Fong v Leong Pek Hoon. I am also of the view that the sum of RM50,000 as loss of earnings capacity was not manifestly excessive—although I observe that this was not an argument advanced for the defendants, as counsel for the defendants was of the view that loss of earnings capacity ought not have been awarded at all.

The defendants raised two points of appeal on special damages, relating to loss of earnings and future medical treatment. These are considered in turn in the following paragraphs. S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 8 Loss of actual earnings 31. The trial judge in this case allowed pre-trial loss of earnings in the amount of RM13,600, based on a monthly salary of RM1,700 for a period of eight months. Learned counsel for the defendant argued that:

the period ought only have been for four months, because the medical certificate issued to the plaintiff was only for four months; and

there ought to have been a one-third deduction for living expenses.

The evidence of the plaintiff was that he returned to the restaurant at which he had worked after 8 months following the injury, but discovered that his previous employer had already found a replacement worker. He remained unemployed at trial. His testimony was not challenged.

It was on this basis that the Sessions Court allowed loss of earnings for a period of eight months. The Sessions judge explained in her grounds of judgment: Majikan (SP1) mengatakan bahawa plaintif telah tidak dibayar gaji sepanjang cuti sakit dan kemudiannya dia terpaksa mengambil orang lain bekerja menggantikan plaintif memandangkan plaintif tidak lagi boleh bekeria akibat kemalangan tersebut. Plaintif juga di dalam keterangannya mengatakan bahawa dia ada pergi semula untuk bekerja dengan majikan 8 bulan selepas kemalangan tetapi telah ditolak kerana majikan telah mengambil orang lain menggantikan plaintif. Oleh itu Mahkamah in telah membenarkan RM13,600.00 sebagai kehilangan pendapatan sebenar (RM1,700.00 x 8 bulan).

Learned counsel for the defendant argued that, based on the authority of the High Court of case of Mohd Sabri Syafiq Mohamed Romli lwn Navinkumar Magendran7. In that case, the High Court affirmed the decision of the Sessions Court to award loss of actual earnings for a period of eight months (rather than the 14 months claimed by the plaintiff in that case), because 8 months was the actual period of medical leave that was officially given to the plaintiff by the hospital. The court explained the rationale for this decision in the following terms: [46] Saya tidak setuju dengan hujahan Responden/Plaintif untuk menambah 6 bulan lagi disebablcan Responden/Plaintif tidak bekeria mulai tamat cuti sakit hingga mendapat pekerjaan baru (selama 6 bulan). Ini kerana tempoh cuti sakit adalah 7 [2021] MLRHU 2324 S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 9 tempoh yang diberikan secara rasmi oleh doktor yang terlatih setelah mengambil kira kecederaan yang dialami oleh Responden/Plaintif.

In the present case, however, the plaintiff had been examined by the defendant’s medical expert about a year after the accident, who confirmed not only that the plaintiff remained unemployed but also that it would have been difficult for the plaintiff to return to his previous job. Dr Yeap Joo Seng was a consultant orthopaedic and trauma surgeon attached to the KPJ Seremban Specialist Hospital. He was appointed by the defendants to examine the plaintiff, which he did so on 25 July 2021, almost exactly a year after the accident. Dr Yeap was of the view that: In the longer term, [the plaintiff] may have difficulties returning to his previous work in a restaurant as it involves some heavy work and a lot of movement of the right shoulder and he is right handed. However, he should be able to perform jobs which are light duty in nature without any difficulties.

Here then was the view of a trained medical practitioner who had the advantage of undertaking a physical examination of the plaintiff 12 months after the accident. In his view, even after such period had elapsed, the injuries continued to trouble the plaintiff such that it would have been difficult for him to return to his previous employment.

In these circumstances, there was sufficient evidence before the court to support the finding of the learned Sessions judge that the plaintiff was entitled to eight months of loss of earnings. I do not consider appellate intervention appropriate to disturb the finding in question.

The learned counsel for the defendants further argued that living expenses ought to be deducted from the actual earnings lost. Counsel for the plaintiff referred this court to the Supreme Court case of Marappan Nallan Koundar v Siti Rahmah Ibrahim8 and the Court of Appeal case of Sumarni v Yow Bing Kwong9 for the proposition that no deductions ought to be made for living expenses where no proof was received at trial regarding the living expenses of the plaintiff.

While counsel for the defendant acknowledged that no evidence was led at trial regarding living expenses, he referred the court to the case of Rohani Tangkah v Zainal Lani10 as authority for the proposition that the court ought to 8 [1990] 1 MLJ 99 9 [2008] 1 MLJ 608 10 [2004] 2 CLJ 108 S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 10 adopt the modern trend of deducting a third from the wages as living expenses, without the need to undertake the somewhat laborious process of ascertaining what the actual living expenses were.

I am of the view that the discussion on deduction for living expenses was in fact irrelevant to the issue at hand. Living expenses must by law be deducted where a claim is being made for loss of future earnings, pursuant to the provisions of section 28(2)(c)(iii) of the Civil Law Act 1956. The discussion on deductions for living expenses in both Marappan Nallan Koundar v Siti Rahmah Ibrahim and Sumarni v Yow Bing Kwong were in the context of claims for loss of future earnings. By written law, living expenses must be deducted from such claims, subject to such expenses having been proven at trial.

Rohani Tangkah v Zainal Lani by contrast was a case dealing with a dependency claim under section 7 of the Civil Law Act 1956. Here too, statute requires living expenses of the deceased at the time of his or her death to be deducted in assessing loss of support: see section 7(3)(iv)(c).

There is no similar statutory provision requiring the deduction of living expenses for a claim for actual pre-trial loss of earnings (which is the head of damages under present consideration). Indeed, in my considered view, there would not be any logical reason for living expenses to be deducted, because such living expenses would have to be incurred in any event. By deducting living expenses from the claim for loss of actual earnings, the plaintiff would in fact be penalised: he would still have had to incur his living expenses, but his earnings (in the form of the claim against the defendants) would be deducted by an additional, equivalent amount.

A simple illustration will demonstrate the point. Say a claimant had been earning RM2,000 up to the time of the accident that befell him. He claims for actual pre-trial loss of earnings for five months, bring the total claim to RM10,000. Assume that his monthly living expenses are RM500 per month. This RM500 would continue to be incurred, even after the accident. If RM500/month is deducted from his claim, he would only obtain RM7,500 from the defendant. In the meantime, he would have had to continue to incur RM500/month as living expenses, leaving him with RM5,000 of disposable income for the five months in which he was out of work.

Now, had the accident not occurred, he would have earned RM10,000 for the five-month period, and his total living expenses would be RM2,500 for the period, leaving him with RM7,500 of disposable income. S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 11 45. The object of damages in a tortious claim is to put the plaintiff in so far as it is reasonably possible in the position he would have been had the tort not occurred. For this reason, except where living expenses must be statutorily deducted, there should not be a diminution for living expenses in a common law claim for loss of earnings.

This particular ground of appeal is thus dismissed. Future medical treatment and pain and suffering 47. The court below awarded RM27,713.20 as costs of future treatment, and a further sum of RM5,000 for pain and suffering arising from future surgery.

The breakdown of the awards was as follows:

physiotherapy: : RM1,280.00

manipulation of the right shoulder under anaesthesia : RM1,666.60

non-steroidal anti-inflammatories for the right shoulder : RM12,600.00

subacromial joint injections : RM3,500.00

MRI and surgical decompression and debridement/rotator cuff surgery : RM8,666.60

pain and suffering from future surgery : RM5,000.00

The first five items in the list above have already been adjusted to account for the lower costs of public healthcare.

The first argument raised by counsel for the defendants was that there were no receipts tendered for the treatments that the plaintiff had undergone. The short—but complete—answer to this was these were treatments that were S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 12 to be undertaken in the future. No requirement arose for the plaintiff to provide receipts for treatments that he had yet to undergo.

It was also contended that the specialist appointed by the defendants— Dr Yeap Joo Seng—had not advised of any future surgery. However, Dr Jeyaratnam Satkunasingam, a consultant orthopaedic surgeon at the Mahkota Medical Centre in Melaka did provide a report that addressed future surgery. The trial judge in this case preferred the report prepared by the plaintiff’s expert over that of the defendant’s. In these circumstances, appellate intervention cannot be justified unless it can be shown that the trial judge was plainly wrong in preferring one expert over the other.

The fact that Dr Jeyaratnam’s report suggested that surgical intervention was a possibility—and not a certainty—was not of itself a ground to refuse relief. As explained, the function of assessment proceedings is to estimate damages as would put the plaintiff in the position he would have been had the accident not occurred. This is of course an impossibility, as it is not possible to turn back the clock to undo the accident. The exercise is fraught with uncertainty, as it is never possible to fully predict what medical complications might befall a claimant in the future as a direct result of the accident. The court is nonetheless tasked with the responsibility to provide as far as is possible reasonable compensation to the claimant for the injuries that he has suffered. Where uncertainties arise, I am of the view that a trial judge is wholly entitled to resolve those uncertainties in favour of the claimant. The fundamental fact remains that, had the first defendant not conducted his vehicle negligently, the plaintiff would not be in the position that he is now.

For these reasons, this particular ground of appeal is dismissed.

For the reasons explained in the preceding paragraphs, the defendants’ appeal is allowed in part only. As the defendants’ appeal was substantially dismissed, I direct that the defendants bear costs in the amount of RM5,000, such costs to be subject to an allocatur. 29 May 2023 S/N w/viJHUvwk2PGyfsYY3Kpw Meor Yussof bin Mahdi v Mohd Dali bin Sheck Dawood 13 Azizul Azmi Adnan Judge High Court Seremban For the appellants: Mr Kajendra Balan R Sandrian & Ms Kamini Devi Subramaniam—Messrs VP Nathan & Partners For the respondents: Ms Kavittha Maniam—Kavittha Maniam & Partners S/N w/viJHUvwk2PGyfsYY3Kpw