Muamal Shafiq Bin Rahatan v Muhammad Fauzi Bin Arshad (JB-12B-2-07/2025)

MUAMAL SHAFIQ BIN RAHATAN [NO. K/P: 921101-01-6869]

C T HO TRANSPORT SDN BHD [NO. SYARIKAT: 337694-K] … PERAYU/DEFENDAN DAN MUHAMMAD FAUZI BIN ARSHAD [NO. K/P: 980414-01-6907] … RESPONDEN/PLAINTIF DALAM MAHKAMAH SESYEN DI SEGAMAT DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN SIVIL NO.: JD-A53KJ-22-04/2024 ANTARA MUHAMMAD FAUZI BIN ARSHAD [NO. K/P: 980414-01-6907] … PLAINTIF

MUAMAL SHAFIQ BIN RAHATAN [NO. K/P: 921101-01-6869]

C T HO TRANSPORT SDN BHD [NO. SYARIKAT: 337694-K] … DEFENDAN-DEFENDAN

This is an appeal by the Appellants (Defendants in the Court below) against the decision of the Learned Sessions Court Judge (SCJ) on the assessment of quantum arising from a road accident on 7.9.2022 at KM 190, Jalan Johor Bahru-Seremban, involving the Respondent (Plaintiff in the Court below) who was riding a motorcycle No JKV 4587 and the 1st Defendant who was driving a motor lorry No BKT 5688 owned by the 2nd Defendant.

The Sessions Court Judge, after a full trial, delivered the following judgment: -

Liability - 100% against the Defendants.

Quantum.

General damages: - RM 67 000.00

(ii) Special damages: - RM 239,392.71

Based on the Memorandum of Appeal, the Defendants are appealing the following items: - a) General Damages ITEM PLAINTIFF SUBMISSIONS DEFENDANTS SUBMISSIONS AWARD BY THE LEARNED SESSIONS COURT

Open fracture midshaft left tibia and fibula RM 50,000.00

RM 40,000.00 Deep laceration wound over the left leg

RM 7,000.00 Scars - Surgical scar left knee, 4 x 1 cm - Hypertrophic surgical scar at left shin, 19 x 3 cm - Surgical scar at medial aspect of eft shin, 8 x 1 cm - Two pin site scar at proximal left shin, 1 x 1cm - Five pin site scar at distal left shin, 1 x 1cm each RM 20,000.00

RM 15,000.00 Muscle wasting RM 7,000.00 RM 3,000.00 RM 5,000.00 b) Special damages ITEM HUJAHAN PLAINTIF HUJAHAN DEFENDAN AWAD HAKIM

SESYEN Cost of physiotherapy

To be dismissed RM 3,600.00 Cost of travelling expenses

To be dismissed RM 800.00 Loss of earning capacity RM 179,000.00 To be dismissed RM 179,000.00 The principles governing the appellate Court’s intervention on quantum: -

The law is trite that this Honourable Court in exercising its appellate jurisdiction would not readily interfere with the findings of facts of the trial judge who had the audio-visual advantage of the witnesses unless it can be shown that the decision of the trial judge was plainly wrong. See: Sivalingam all Periasamy v Periasamy & Anor [1995] 3 MLJ 395.

Similarly, an appellate court will not readily interfere with an award of damages unless it is satisfied that the judge had acted on a wrong principle of law, or has misapprehended the facts, or for some reason or other made a wholly erroneous estimate of the damages or the amount awarded so excessive or insufficient as to lead to the conclusion that some error in principle must have taken place. See: Rasidin Binpartorjo v Frederick Kiai [1976] 2 MLJ 214.

In Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22, the Federal Court held that- “Now, in an appeal on quantum of damages it is essential in order to come to a conclusion to bear in mind certain principles which are well established. The appeal court is slow, disinclined to interfere with the Judge’s finding merely because the appeal court thinks that if the case had been before it in the first instance a lesser sum would have been awarded. Azmi, C.J. (Malaya) (as he then was) giving the Judgment of the Federal Court in Topaiwah v Salleh [1968) 1 MLJ 284, 285 said that: “...So far as this court is concerned we should, to paraphrase Greer L.J. in Flint v. Lovell be disinclined to reverse the finding of a trial judge as to the amount of damages merely because we think that if we had tried the case in the first instance we would have given a lesser sum. To justify reversing him, we should be convinced that he acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate of the damage. The assessments which the courts have made over the years form some guide to the kind of figure which is proper and which the appellate court will follow in the light of the special facts of each particular case.”

Based on the above principles of law, it is incumbent upon the Appellants to show that the SCJ had acted upon some wrong principle of law and/or that the amount awarded was so extremely high, contrary to the evidence presented before the Court.

Based on the grounds of the decision of the Sessions Court Judge (enclosure 5, pages 5 to 27), she has taken the following factors in arriving at her decision: - a) The guidance derived from the Federal Court decision of lnas Faiqah Bt Mohd Helmi v Kerajaan Malaysia & ORS [2016] 2 MLJ 1, where it was decided that it is trite law that damages serve as compensation, not a reward, let alone a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. b) All medical reports tendered to the court, including the latest medical report that is available. c) The revised Compendium of Personal Injury Awards (Compendium) dated 6.7.2018 and based on the decision of Justice S Nantha Balan in the case of Abdul Wahubbi & Anor v AK Nazaruddin Ahmad [2017] 5 LNS 52, where it was stated as follows: - “It is axiomatic and imperative that when awarding damages for pain and suffering for personal injuries, the court must endeavor to ensure that the sum awarded falls within the range stipulated in the Compendium and it would be wrong for trial courts to ignore the range of damages as recommended in the Compendium and to pluck a quantum from the air and make an award for a particular injury which does not resonate with the range in the Compendium.” d) As for special damages, it follows the Federal Court decision in Ong Ah Long v Dr. S Underwood [1983] CLJ (REP) 300, where it must be specifically pleaded and strictly proved.

Further, an award for an injury must be adjusted upward to account for inflation and fall in the value of money. In Zamri Md Som & Anor v Nurul Fitriyaton ldawiyah Nahrawi [2002] 1CLJ 309, Low Hop Bing J (as he then was), held that: - “From the comparative studies above, it is noteworthy that the awards referred to were for the respective injuries sustained by the injured parties some eight to ten years ago. It is therefore necessary to take into account the fall in the value of money, as a direct impact of inflation the effect of which is pervasive. Hence, in Liong Thoo vs Sawiyah & Ors [1981] CLJ 126; CLJ (Rep) 171 Chan, J (later JCA) stated: - Awards tend to increase in value in recent years. This is because judges have taken into account the fall in the value of money.” In Chu Kim Sing & Anor Vs Abd Razak Amin [1999] 4 CLJ 448, 496, Abdul Malik Ishak, J stated: - “The time has come for the courts to be magnanimous in its awards for running down cases. Old comparables must continue to be used but the quantum must rise and commensurate with the times.”

Similarly, in Lim Sil Hao v Selvarajah a/l Perumal [2022] 8 MLJ 479, it was held that: - “[10] In determining the appropriate quantum, the courts have been guided by precedents in comparable cases. The amounts awarded in past cases, which bear reasonable comparison with the case under review, would serve as useful guides. However, previous awards would have to be adjusted upwards to take into consideration the fall in the value of money as a result of inflation.”

As for the cost for removal of implants, the cost of Nonsteroidal anti-inflammatory drugs (NSAIDs), and the cost of physiotherapy, these treatments are recommended by Dr Thinesh Varan Subramaniam, and the Appellants are deemed to have agreed pursuant to Order 34 rule 1O (b) Rules of Court 2012 since they did not refer to any other specialist.

In the case of Majuikan Sdn Bhd v Barclays Bank Pie [2015] 1 MLJ 171, the Court of Appeal had held that: - “Where there are conflicting expert opinions, the trial judge is entitled to bring to bear his own judicial appreciation of the matter, and choose one over the other, but where there is only one expert opinion, he should not as a rule reject that opinion outright without judiciously considering whether it is obviously indefensible and unsupported by the basic facts of the case.”

Based on the unrebutted medical evidence, the Plaintiff was admitted for 6 days at Hospital Segamat and he attended 3 follow-up treatment at Hospital Segamat. The Plaintiff also attended Dr. Thinesh Varan’s examination at Sehat Healthcare Centre, Seremban on 3/3/2024.

Although, there was no formal receipt, it is not unreasonable for the Plaintiff and/or his family to have incurred such expenses and the SCJ could have taken judicial notice to award a reasonable sum for travelling expenses.

For instance, in Kasirin Kasmani v The Official Administrator & Anor [1991] 2 CLJ (Rep) 800, [1991] 1 MLRH 325, the High Court had allowed the claim for travelling expenses although there was no formal receipt and held that: - “As to the claims for the items of special damages not agreed upon, in the absence of any proof of actual expenditure in the form of receipts, I would award the sum of RM560 at the rate of RM20 per day for the wife’s transport and living expenses for the 28 days she had to reside in Johore Bahru in order to visit the Plaintiff at Hospital Sultanah Aminah in Johore Bahru. This sum will bear interest at the rate of 4% per annum from the date of the accident. Again, in the absence of actual proof, I would award the sum of RM400 for her transport expenses for her visits to the plaintiff at Hospital Daerah Banting which is near the kampong where she lived. This sum will also bear interest at the rate of 4% per annum from the date of the accident.”

Therefore, the sum of RM800.00 allowed by the SCJ is not unjustified and it is wholly unreasonable for the Appellants to appeal on this amount.

What is obvious from the cross examination is that the testimony of SP2 that the Plaintiff’s performance at work after the accident had reduced and/or affected was not challenged by the Appellants.

In Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31, the Court of Appeal held that: - “... His evidence was never cross-examined (see p 159. appeal record). Thus it must be accepted that the failure to cross-examine the defendants on important aspects of their evidence must be treated as acceptance of those part of their evidence ...”

Consistent with the unchallenged testimony of SP2 and the Plaintiff, Dr. Thinesh Varan Subramaniam had diagnosed the Plaintiff with the following residuals/disabilities: - Present status & affected activities of Daily Living • Residual pain at left leg • Unable to squat • Unable to run and participate in sports activities • Unable to perform prayers - pray in sitting position • Discomfort upon prolonged standing and walking

As a helper at a catering business, it is imaginable that the Plaintiff (who was 24 years old at the time of the accident) would require unrestricted movements and the ability to lift up heavy loads such as trays, containers, cooking materials, utensils and most importantly to stand for long hours. These abilities have been diminished due to the injuries sustained by the Plaintiff.

The only reason why the Plaintiff was still employed by SP2 after the accident is because of his previous work performance which SP2 described as “pekerja yang baik”. But the evidence clearly shows that there is a substantial risk of either losing his job or getting a less paid employment.

In Mohd Nasri Adam & Satu Lagi lwn. Chong Wen Fatt [2016] MLRHU 578, the High Court in maintaining the Trial Judge’s award for loss of future earnings, held that: - “[37] Seterusnya pihak defendan juga telah merayu terhadap award sebanyak RM309,000.00 sebagai kos kehilangan pendapatan (post-trial loss) walaupun laporan pakar menyatakan plaintif masih boleh bekerja. Hakim Mahkamah Sesyen telah membenarkan award sebanyak RM1,800.00 untuk 172 bulan yang berjumlah RM309,000.00. [42] Hakim Mahkamah Sesyen telah merujuk kepada laporan pakar plaintif dan laporan pakar defendan seperti berikut: - “Dr Peraba dalam laporan pakarnya menyatakan bahawa plaintif menghadapi pelbagai kesan sampingan akibat kecederaan yang dialaminya. Antaranya ialah: - - Not able to stand unsupported on either lower limb - Weakness of both lower limbs - Able to walk short distance only with the aid - Not able to squat Doktor pakar pilihan defendan, Dr Chee Chia Sing (sila rujuk ms 3 lkatan Dokumen Defendan) juga menyokong kecacatan yang dialami oleh plaintif dan menyatakan: - ‘he is not fit to perform jobs or activities that require squatting, running, climbing, heavy lifting, prolonged walking or standing due to his residual disabilities’…”

In Ngooi Ku Siong v Aidi Abdullah [1985] 1 MLJ 30, Syed Agil Barakbah FCJ held that: - “There is also a difference between loss of future earnings and loss of earning capacity although both items are under general damages. Future loss of earnings or loss of prospective earnings are awarded for real assessable loss ie loss that is capable of assessment at the date of the trial. It must be proved by evidence and not by mere speculation. In the absence of such evidence if the court is satisfied that the plaintiff has suffered a loss of earning capacity, he will be awarded a sum as part of the general damages for his disability suffered as a result of the injuries sustained, instead of compensation for loss of future earnings. It arises where there is a residual risk that the plaintiff might be thrown out of work altogether at some future date. The risk must be real and not speculative or fanciful.”

Consistent with the above authorities and the case of Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786, the SCJ was satisfied that based on the medical evidence and the testimony of SP2 and the Plaintif, he has proven that there is a substantial risk of him earning a lesser sum in the future due to the disabilities sustained by him.

There is nothing to show that the SCJ had acted on a wrong principle of law in awarding the sum of RM179,000.00 [RM1,000 x 179 months (16 years - 13 months actual loss)] for loss of earning capacity.

Based on the above principles, the Sessions Court Judge arrived at her decision on quantum, and this Court finds that there are no errors of law or facts committed by the Learned Judge. In conclusion, this is not a case that warrants an appellate court’s intervention. Hence, the appeal by the Appellants on quantum is dismissed with costs of RM 5000.00. Dated 14th January 2026 t.t. KALYANA KUMAR SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellants : Vijaya Tharanee a/p Anbalakan Messrs Suat Lim & Co. For the Respondent : Gobi a/l Velusamy