Moorthy A/L Muniandy v Nithyanantan A/L Yasudaber (BA-12B-12-02/2025)

This is an appeal against the quantum of damages awarded by the learned Sessions Court Judge in Civil Suit No. BA-B52- 1342-11/2023, where the Appellant was awarded a total sum of RM272,600 following a motor vehicle collision. Liability was assessed at 100% in favour of the Appellant, and no appeal lies against that finding.

The present appeal concerns only the quantum, specifically whether certain heads of damages relating to neurological injury, orthopaedic injury, physiotherapy expenses, and future medication (Arcoxia) were properly assessed. S/N 9lU41KlzlkG3isrqbs0p7A

Having examined the Record of Appeal, the Grounds of Judgment, the medical reports, and the respective submissions, this Court finds the Sessions Court’s overall assessment to be generally sound and supported by evidence. However, two heads of general damages warrant limited appellate adjustment.

The Court also notes that the cases cited by the parties will be considered. B.

The Appellant was riding his motorcycle along Persiaran Tengku Ampuan Rahimah when the Respondent’s Toyota Hilux collided into the rear of his motorcycle. He was thrown forward and lost consciousness.

He sustained: i) Right Shoulder Impingement Syndrome, which required surgery and prolonged physiotherapy; ii) Loss of consciousness with retrograde amnesia; iii) Soft tissue injuries; iv) Muscle wasting and residual limitation of abduction in the dominant arm. S/N 9lU41KlzlkG3isrqbs0p7A

He was initially treated at HTAR, and subsequently by Dr. Liau Kang Ming, orthopaedic surgeon, who confirmed persistent pain, impingement signs, and functional limitations.

The Appellant was unable to work for several months. He claimed medical expenses, physiotherapy costs, and future medication.

The Sessions Court accepted liability and awarded damages under multiple heads, amounting to RM272,600. The Appellant appeals only on quantum. C.

Learned counsel for the Appellant submitted that the Sessions Court undervalued two main heads of general damages:

Loss of Consciousness with Retrograde Amnesia

Counsel argued that RM5,000 was manifestly low, given the neurological impairment suffered. Reliance was placed on cases cited in the submissions, including: i) Khairul Anuar v Muhammad Syamsul [2024] MLJU 2375 – RM7,000 for brief Loss of Consciousness. ii) Rosila Hussin v MADA [2024] PILRU 45 – RM10,000 for concussion with memory loss. S/N 9lU41KlzlkG3isrqbs0p7A

(ii) Right Shoulder Impingement Syndrome

The Appellant relied on medical reports confirming persistent limitation, pain on abduction, and reduced functional capacity. Counsel cited Aini bte Abdullah v Nathan a/l Athimoolan [2023] 2 PIR 31– RM30–35k range.

It was argued that RM20,000 awarded by the Sessions Court did not reflect the severity or longevity of the impairment.

(iii) Physiotherapy (Special Damages)

The Appellant claimed RM7,200 for 24 weeks (3 sessions/week). Although receipts were incomplete, counsel argued the necessity was proven through medical prescription. Authorities relied upon: i) Ariff Muzani v Nurulhuda [2021] MLJU 1565 – physiotherapy costs recoverable when prescribed. ii) Veerasingam v Zamzuri Jais [2022] 5 LNS 119 – private therapy allowed when public facilities insufficient.

Counsel submitted that the Sessions Court’s reduction to RM2,400 (⅓) was arbitrary. S/N 9lU41KlzlkG3isrqbs0p7A

(iv) Arcoxia Medication

The Appellant contended that long-term pain management required Arcoxia, and RM111,600 was justified based on medical needs.

Counsel argued the Sessions Court failed to consider the chronic nature of shoulder impingement.

Legal Principles on Appellate Interference

Appellant cited: i) Mahmod Kailan v Goh Seng Choon [1976] 2 MLJ 239 appellate correction when award is manifestly low. ii) Mat Shah Mohamed v Foo Say Meng [1983] CLJ (Rep) 254 – award must reflect injuries suffered. iii) Foo Lan Foow v Kamisah binti Othman [2004] 1 LNS 121 – medical necessity determines compensability. D.

Learned counsel for the Respondent submitted that the Sessions Court’s findings were within the discretionary range and supported by evidence. S/N 9lU41KlzlkG3isrqbs0p7A

Strict Proof of Special Damages

The Respondent relied heavily on Thrimalai v Mohamed Masry [1987] 1 MLJ 153 – special damages must be strictly proved.

As receipts were incomplete, the physiotherapy award of RM2,400 was said to be appropriate.

(ii) Reasonableness & Mitigation (Arcoxia & Physiotherapy)

Respondent submitted the Appellant, as ex-army, had access to government facilities. A claimant is under a duty to mitigate loss, and cannot recover expenses which are unreasonable or unnecessarily incurred. On that basis, it was argued that the Appellant could not insist on luxury private treatment when reasonable public alternatives were available.

Arcoxia was unproven, speculative, and unsupported by medical evidence.

(iii) Quantum for Mild Injuries

The Respondent submitted that awards for mild head injuries involving brief loss of consciousness, without long-term neurological deficit, are conventionally modest, and that the Sessions Court’s assessment was consistent with the established range of damages for such injuries. S/N 9lU41KlzlkG3isrqbs0p7A

Thus, the Sessions Court’s RM5,000 and RM20,000 awards were consistent.

(iv) Appellate Restraint

The Respondent emphasised that an appellate court should exercise restraint when invited to interfere with a trial court’s assessment of quantum. Reliance was placed on Mahmod bin Kailan v Goh Seng Choon & Anor [1976] 2 MLJ 239 (Federal Court), where the Federal Court held that the discretion of the trial judge in assessing damages must be respected, and appellate intervention is justified only where the award is based on a wrong principle or constitutes an entirely erroneous estimate. The Respondent submitted that the Sessions Court had carefully considered the medical evidence, the nature of the injuries, and comparable awards, and that its assessment of damages therefore fell squarely within the permissible range of judicial discretion contemplated in Mahmod bin Kailan [supra]. Accordingly, there was no basis for appellate interference merely because another court might have arrived at a different figure. E.

From the submissions and the Record, the following issues arise for consideration: S/N 9lU41KlzlkG3isrqbs0p7A

Whether the award of RM5,000 for Loss of Consciousness with Retrograde Amnesia was manifestly low.

Whether the award of RM20,000 for Right Shoulder Impingement Syndrome adequately reflected pain, suffering, and functional impairment.

Whether the Sessions Court erred in allowing RM2,400 for physiotherapy instead of RM7,200.

Whether the Sessions Court was correct in dismissing the Arcoxia medication claim (RM111,600).

Whether the total award of RM272,600 warrants appellate interference based on the principles governing such review. F. APPLICABLE PRINCIPLES FOR APPELLATE

The principles guiding an appellate court in reviewing quantum are well-established in Malaysian jurisprudence. Parties themselves relied on key authorities. S/N 9lU41KlzlkG3isrqbs0p7A

In Teo Sing Keng v Sim Ban Kiat [1995] 3 MLJ 263, the Court of Appeal held that appellate courts should not interfere unless the award is: i) based on a wrong principle, ii) misapprehends material evidence, or iii) is so inordinately high or low as to represent an erroneous estimate.

In Mahmod Kailan v Goh Seng Choon [1976] 2 MLJ 171, relied on by both parties, the Federal Court reiterated that the appellate function is corrective, not substitutionary, and intervention is warranted only where injustice would otherwise result.

The Appellant invoked Mat Shah Mohamed v Foo Say Meng

(1983), where the court emphasised consistency with comparable awards. This principle is accepted but must be applied with caution, as no two injuries are identical.

With these principles as the framework, I now turn to the issues raised. G. ANALYSIS OF GENERAL DAMAGES Issue 1: Loss of Consciousness with Retrograde Amnesia (Sessions Court: RM5,000 - On Appeal: RM7,000)

The Appellant suffered a brief period of unconsciousness followed by short-term retrograde amnesia. The medical S/N 9lU41KlzlkG3isrqbs0p7A evidence describes this as mild traumatic brain injury, with disorientation and memory loss resolving over the initial recovery period.

The Appellant relied on two cases: i) Khairul Anuar v Muhammad Syamsul [2024] MLJU 2375 : Appellant pointed out that RM7,000 was awarded for brief loss of consciousness with no permanent deficit. ii) Rosila Hussin v MADA [2024] PILRU 45 : RM10,000 awarded for concussion with extended cognitive symptoms.

The Respondent countered arguing that awards for minor head injuries and brief loss of consciousness are conventionally modest, with courts typically awarding around RM5,000 for injuries of this nature.

Having compared the evidence and authorities, I find: i) The injury here is more serious than trivial soft tissue injury, ii) But less severe than cases involving prolonged dizziness or cognitive impairment.

The Sessions Court’s award of RM5,000 falls below the comparable range in Khairul Anuar [supra] and Rosila Hussin [supra], both cited by the Appellant. Since the Sessions Court did not address these authorities, the omission constitutes a degree of undervaluation. S/N 9lU41KlzlkG3isrqbs0p7A

I am satisfied that a modest enhancement is justified. Award enhanced to RM7,000. Issue 2: Right Shoulder Impingement Syndrome (Sessions Court: RM20,000 - On Appeal: RM30,000)

The Appellant’s primary injury was Right Shoulder Impingement Syndrome. Medical findings by Dr. Liau Kang Ming include: i) Limited abduction due to pain, ii) Muscle wasting from disuse, iii) Residual functional deficit despite therapy, iv) Impact on activities of daily living and overhead tasks.

The Appellant relied heavily on Aini bte Abdullah v Nathan a/l Athimoolan [2023] 2 PIR 31– RM30,000+ for similar shoulder injuries.

The Respondent cited Piona Abdul Latif v Government of Malaysia [2018] 1 LNS 668, noting that soft-tissue shoulder injuries are usually awarded lower sums.

The Sessions Court accepted the injury but did not engage with the range of comparative awards. In Aini [supra], particularly, the court considered exactly the combination of pain, limited range, and residual weakness as seen here. S/N 9lU41KlzlkG3isrqbs0p7A

The Appellant’s condition is not permanently disabling, but the chronic nature of impingement and the need for long-term strengthening justify a higher award.

I am persuaded that the award of RM20,000 underestimates the real impact of the injury.Award enhanced to RM30,000. H. DISCUSSION OF LEGAL PRINCIPLES APPLIED TO

The cases relied upon by the Appellant reflect the comparative method, long accepted in personal injury assessments.

The Respondent, conversely, stressed the need to respect the trial court’s discretion, unless the award is wholly erroneous.

In this appeal, the enhancements are modest and justified by: i) clear medical evidence, ii) established comparables actually cited by the parties, and iii) the Sessions Court’s omission to properly situate its award within the relevant range.

Importantly, this Court does not substitute wholesale its own assessment. Instead, consistent with Mahmod Kailan [supra], it intervenes only where the trial judge’s figure is demonstrably low against the spectrum of awards in cases expressly cited by counsel. S/N 9lU41KlzlkG3isrqbs0p7A I.

Special damages, unlike general damages, must be specifically pleaded and strictly proved. This principle was repeatedly emphasised by the Respondent, relying on Thrimalai v Mohamed Masry [1987] 1 MLJ 153.

The Appellant accepted this principle but argued that where medical necessity is established, and receipts exist for part of the expenditure, the Court may allow a reasonable proportion if the treatment is proven essential.

The Appellant cited authorities such as: i) Ariff Muzani v Nurulhuda [2021] MLJU 1565 ii) R. Veerasingam v Zamzuri Jais [2022] 5 LNS 119 to demonstrate that physiotherapy prescribed by a specialist should generally be compensated.

The Respondent further assert the duty to mitigate loss and to utilise government healthcare facilities when available.

With these competing frameworks in mind, I now address each head. J. PHYSIOTHERAPY EXPENSES – RM1,600 (AFFIRMED) S/N 9lU41KlzlkG3isrqbs0p7A (Sessions Court: RM1,600 - On Appeal: Maintain RM1,600)

The Appellant claimed RM7,200 for physiotherapy, based on: i) 3 sessions per week ii) 24 weeks iii) RM100 per session

Receipts produced covered only part of the treatment. While the Appellant explained that not all receipts were available due to staggered visits and payments, the Sessions Court was entitled to weigh the documentary evidence.

The Sessions Court accepted the medical necessity of physiotherapy but allowed RM1,600, supported by receipts.

The Appellant relied on: i) Ariff Muzani v Nurulhuda [2021] MLJU 1565 ii) Veerasingam v Zamzuri Jais [2022] 5 LNS 119. to argue that full medical-prescribed therapy should be awarded. In those cases, the therapy was supported by full documentation and unchallenged evidence of necessity.

The Respondent countered, citing Thrimalai [supra], that strict proof is required and incomplete receipts justify downward adjustment. S/N 9lU41KlzlkG3isrqbs0p7A

I accept that physiotherapy was medically necessary - this much is undisputed. However, special damages cannot be presumed; they require evidence.

The Sessions Court award of RM1,600, being the amount strictly proved by receipts, accords with the principles in Thrimalai [supra].

The Appellant failed to demonstrate that the learned Judge misdirected herself in applying the strict proof requirement.The physiotherapy award of RM1,600 is affirmed. K. ARCOXIA MEDICATION – RM111,600 CLAIM DISMISSED

The Appellant claimed RM111,600 for Arcoxia (RM310 per month × 30 years).

The Sessions Court rejected the claim for want of: i) receipts, ii) proof of long-term medical necessity, and iii) any expert opinion supporting a lifetime prescription.

The Respondent argued this claim was speculative, relying on the strict proof doctrine.

The Appellant produced no clinical evidence stating that Arcoxia must be taken for life. Nor was any projection from a specialist produced. S/N 9lU41KlzlkG3isrqbs0p7A

Under Thrimalai [supra], speculative estimates cannot form the basis of special damages.

The Respondent submits on the duty to mitigate loss, arguing that cheaper, equivalent medication is available through government facilities.

I find no error in the Sessions Court’s rejection of the claim. The figure of RM111,600 is wholly unsupported by evidence, lacks receipts, and contradicts medical testimony which did not certify long-term dependency. Arcoxia claim dismissed in full. L.

The Appellant did not actively appeal the calculation of loss of income, but it remains part of the overall quantum requiring review.

The Sessions Court applied: i) Monthly income: RM3,500 ii) Multiplier: 6.5 years iii) Deduction for living expenses: one-third

This resulted in a total of RM179,400, which neither party substantively challenged on appeal.

The Respondent argued the multiplier and deductions were properly justified and consistent with comparable assessments. S/N 9lU41KlzlkG3isrqbs0p7A

The Appellant did not provide any contrary authority or calculation to challenge the one-third deduction.

As such, this Court finds no basis for appellate interference.

Other special damages such as medical reports, transport, and attendant charges were fully supported by receipts and accepted by both parties. All these components are affirmed. M.

The Respondent’s submissions emphasised the mitigation principle, arguing the Appellant could obtain treatment through government facilities at lower cost.

While the Appellant, as a retired army personnel, does have such access, I note that: i) Physiotherapy was medically prescribed by specialists, ii) Private treatment may be reasonable when immediate rehabilitation is required, iii) But reimbursement is limited to receipted amounts, consistent with Thrimalai [supra].

Thus, mitigation is relevant to disallowing speculative future costs (Arcoxia), but not a basis to deny physiotherapy that has been proven with receipts.

The Sessions Court correctly navigated this balance. S/N 9lU41KlzlkG3isrqbs0p7A N.

After evaluating the Record of Appeal, medical evidence, parties’ submissions, and authorities cited, this Court makes the following determinations: General Damages 1. Loss of Consciousness with Retrograde Amnesia i) Sessions Court: RM5,000 ii) On Appeal: Enhanced to RM7,000 (+RM2,000) iii) Reason: Comparable cases cited by the Appellant (Khairul Anuar[supra], Rosila Hussin [supra]) place the injury in a slightly higher bracket. Sessions Court undervalued this head by not engaging with these cases.

Right Shoulder Impingement Syndrome iv) Sessions Court: RM20,000 v) On Appeal: Enhanced to RM30,000 (+RM10,000) vi) Reason: Medical evidence confirms significant functional impact. Appellant’s authorities (Aini [supra]), consistently award RM30,000–RM35,000 for similar disability. Enhancement required to reflect actual pain and long-term limitation.

Special Damages Physiotherapy i) Sessions Court: RM1,600 (proven by receipts) ii) On Appeal: Affirmed S/N 9lU41KlzlkG3isrqbs0p7A iii) Reason: Strict proof principle (Thrimalai [supra]) applies; only receipted amount compensable. Medical necessity accepted, but not all claimed sessions substantiated.

Arcoxia Medication iv) Sessions Court: RM0 v) On Appeal: Affirmed vi) Reason: Claim for RM111,600 speculative and unsupported by receipts or medical testimony. Dismissal consistent with Thrimalai [supra] and mitigation principles.

Other Components vii) Sessions Court awards for fracture of the humerus, muscle wasting, scarring, medical expenses, attendant charges, transport, and loss of income are affirmed. viii) No misdirection or manifest inadequacy shown. O.

The final quantum is calculated as follows: Head of Damage Sessions Court (RM) High Court Difference Loss of Consciousness + Retrograde Amnesia 5,000 7,000 +2,000 Right Shoulder Impingement Syndrome 20,000 30,000 +10,000 S/N 9lU41KlzlkG3isrqbs0p7A Head of Damage Sessions Court (RM) High Court Difference Physiotherapy 1,600 1,600 — Arcoxia — — — Other General & Special Damages 246,000 246,000 — TOTAL 272,600 284,600 +12,000

The enhancement of RM12,000 reflects limited appellate intervention, proportionate to the undervaluation identified in two heads of general damages. P.

This Court reiterates the caution in that appellate interference is not to be undertaken lightly. The Sessions Court’s discretion remains the primary assessment unless the award is wholly wrong or manifestly inadequate.

Here, the injuries for which enhancement was granted - neurological trauma and shoulder impingement were assessed below the spectrum of awards in Khairul Anuar, Rosila Hussin and Aini [supra], all of which were submitted by the Appellant. S/N 9lU41KlzlkG3isrqbs0p7A

The trial court’s award was not manifestly erroneous but required modest upward correction to maintain consistency with the authorities the Appellant himself relied upon.

Conversely, the Appellant failed to prove the physiotherapy and Arcoxia claims in full. Applying Thrimalai [supra] and mitigation principles,the Sessions Court properly confined compensation to proven expenses.

The Respondent is justified in relying on the strict proof doctrine, but the modest enhancements do not prejudice this principle; they relate solely to general damages, which are inherently discretionary and supported by medical evidence. Q.

For the reasons stated above, this Court finds that: I) The Sessions Court’s findings on liability and most heads of damages were sound, II) Two heads of general damages were undervalued, III) Special damages were correctly approached using strict proof, IV) The appeal warrants only limited intervention, consistent with Mahmod Kailan [supra] and Teo Sing Keng [supra]. S/N 9lU41KlzlkG3isrqbs0p7A

The Sessions Court’s judgment is therefore affirmed in substance, subject to the following enhancements: I) Loss of Consciousness with Retrograde Amnesia - RM7,000 II) Right Shoulder Impingement Syndrome - RM30,000

The total quantum of damages is accordingly revised to RM284,600 (Ringgit Malaysia: Two Hundred Eighty-Four Thousand Six Hundred Only). Dated this 29th December 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Appellant : Mr. K. Saravana Kumar Messrs. Jega Kumar & Partners Counsel for Respondent : Ms. Suganthy Kunasekaran Messrs. Kanaga, Suresh & Co. S/N 9lU41KlzlkG3isrqbs0p7A