MUHAMMAD NAFIS BIN JOHARI (sebagai orang ketidakupayaan yang mendakwa melalui wakil litigasi JOHARI BIN SAAD) v MOHD FAIZAL BIN ROMLI (KA-12B-7-04/2025)

Before this Court are two consolidated appeals arising from a tragic motor vehicle accident that left the First Appellant, who was then a 16-year-old student with a promising future, with devastating and permanent neurocognitive and physical disabilities.

The first appeal (Civil Appeal No. KA-12B-7-04/2025) is brought against the decision of the learned Sessions Court Judge concerning the quantum of damages. In this main appeal, the …page 3 Appellants fundamentally challenge the lower court's reliance on an impermissible "global award" approach for distinct injuries, as well as its failure to adequately evaluate uncontested expert medical evidence regarding the First Appellant's lifelong institutional nursing care.

The second appeal (Civil Appeal No. KA-12ANCvC-5-08/2025) is an interlocutory appeal challenging a subsequent decision by the Sessions Court Deputy Registrar. This secondary appeal raises a critical procedural issue: whether the learned Deputy Registrar possessed the jurisdiction to allow a post-judgment amendment that fundamentally altered and reduced a perfected, sealed order on legal costs after the court had become functus officio. As both appeals stem from the same factual matrix and are closely intertwined, they were consolidated and heard together by this Court. Facts and Background 4. The First Plaintiff was a victim of a motor vehicle collision that occurred on 10 January 2016 along Jalan Jitra—Sungai Korok, involving a motorcycle ridden by the First Plaintiff and a lorry driven by the First Defendant. On the same day, following the accident, the First Plaintiff (then 16 years old) was admitted to the Emergency and Trauma Department of Sungai Bakap Hospital in a critical condition with a Glasgow Coma Scale (GCS) score of 8/15, signifying a severe traumatic brain injury. …page 4

In the following six days, the First Plaintiff was intubated and placed under sedation in the Intensive Care Unit (ICU). On 18 January 2016, due to oxygen desaturation and high-grade fever, he was re-intubated and returned to the ICU. On 22 January 2016, he was extubated but remained profoundly incapacitated upon eventual discharge, requiring Ryle’s tube feeding, lacking speech, and being unable to obey commands. He spent 15 days at Medina Home Care, where he was wheelchair-bound and entirely dependent on others for his activities of daily living.

On 27 February 2016, he was rushed back to the Emergency Department due to severe breathing difficulties and was readmitted to the ICU. A CT scan on 1 March 2016 revealed tracheal stenosis, leading to interventions including direct laryngoscopy, bronchoscopy, and tracheal dilation. On 3 April 2016, he underwent major invasive surgery for an open tracheostomy and the insertion of a T-tube to manage his airway. On 27 October 2021, he underwent further surgeries, including direct laryngoscopy, tracheostomy dilation, tracheocutaneous fistula closure, and steroid injections. His latest scheduled surgery on 6 November 2024 involved further ENT dilation and T-tube insertion due to recurring narrowing of his airway. At the time of the trial, the First Plaintiff remained entirely incapacitated and fully dependent on others for daily living. Decision at the Sessions Court …page 5

The apportionment of liability was agreed and was recorded at the Sessions Court on 26 February 2024. The parties agreed to an apportionment of 70% liability against the Defendants and 30% liability against the First Plaintiff.

Therefore, the only remaining issue is the quantum of damages liable for the Defendants to pay to the Plaintiffs.

In the grounds of judgment, the learned Sessions judge awarded the following to the Appellants as compensation for injuries:

(i). RM3,000.00 for loss of consciousness;

(ii). RM25,000.00 for right occipital bone fracture or skull fracture;

(iii). RM300,000.00 for severe head injury. This award included the head of damages for major neurocognitive disorders due to traumatic brain injury with behavioural disturbance and physical impairment;

(iv). RM100,000.00 for tracheostomy and tracheostomy site complications, including subglottic stenosis, tracheocutaneous fistula;

(v). RM10,000.00 for multiple lacerations; …page 6

(vi). RM10,000.00 for nosocomial pneumonia with type 1 respiratory failure;

(vii). RM5,000.00 for right upper limb cellulitis;

(viii). RM10,000.00 for periorbital hematoma and conjunctiva chemosis;

(ix). RM5,000.00 for bilateral nosebleed and left ear bleeding;

(x). RM3,000.00 for soft tissue injury;

(xi). RM5,000.00 for multiple abrasions;

(xii). RM2,000.00 for trachea-cutaneous fistula scar lower neck;

(xiii). RM15,000.00 for multiple scars. The learned Sessions judge considered the Respondents’ submissions on whether it is a keloid scar; and

(xiv). RM30,000.00 for loss of prospect of marriage.

The Sessions Court declined an award for anosmia (loss of smell) as there was no evidence from ENT specialists for this injury. The …page 7 court also declined to grant an award for pain and suffering, loss of amenities, as he was of the opinion that it was already compensated under the head of damages for severe head injury. The court further declined to award damages for loss of future income on the sole ground that the First Plaintiff was a student at the material time and was not generating an active income.

For the Second Plaintiff, the Sessions Court dismissed the claim for burnout syndrome due to a lack of evidence, medical reports, and the existence of a caretaker.

The parties also claimed for special damages. The Sessions Court considered and awarded the following:

(i). Under the heading of costs of RM40,000.00 for:

police reports, photos of the incident, sketch, and decision of the case, the JPJ search;

medical reports from the Sultanah Bahiyah Hospital Emergency and Trauma Department, Neurosurgery Department, Psychiatry and Mental Health Department, Ophthalmology, Oral and Maxillofacial Department; and

medical reports from Gleneagles Hospital and J. Rajah Specialist Clinic. …page 8

(ii). Agreed sum of RM4,566.50 and RM500.00 for medical expenses incurred at Hospital Putra Medical Centre and Hospital Sultanah Bahiyah;

(iii). RM1,830.00 for family visitation costs of 61 days at Hospital Sultanah Bahiyah;

(iv). RM660.00 for follow-up treatment at Hospital Sultanah Bahiyah;

(v). RM1,862.00 for expenses incurred at Medina Home Care;

(vi). RM320.00 for the purchase of a wheelchair at Hucare Pharmacy;

(vii). RM635,600.00 (RM2,800 × 227 months) as nursing care costs at Regen Rehabilitation Hospital, based on a quotation from the Plaintiff’s psychiatrist; and

(viii). RM218,000.00 (RM2,000 × 109 months) as caretaking costs by family members.

Further claims for caretaking costs by the Second Plaintiff of RM3,000.00 per month for 9 years, totalling RM327,300.00, were dismissed because he was of the opinion that this head was already …page 9 sufficiently covered under the allocation for family caretaking costs awarded to the First Plaintiff.

The only claim allowed for the Second Plaintiff was for assistive devices amounting to RM4,375.00.

The remaining claims by the Plaintiffs—comprising caretaking and multi-disciplinary rehabilitation costs at Regen Rehab Hospital, travel costs for a psychiatrist, occupational therapy expenses, and long-term medical costs over 32 years—were summarily dismissed on the premise that these services and facilities are available at public healthcare institutions. The Appeal and Decision of this Court 16. Unsatisfied with the quantum, the Appellants appealed the decision of the Sessions Court. Chiefly, the appeal challenges the global approach adopted by the learned Sessions Court Judge in collectively awarding a single sum for a severe head injury, major neurocognitive disorder, and physical impairment. The Appellants further appeal twelve distinct heads of quantum, contending that they were either inadequately compensated or erroneously dismissed below.

Having comprehensively considered evidence presented during trial and having read both parties’ written submissions and heard the oral …page 10 submissions, this Court allows the Plaintiffs’ appeal.

Jurisdiction to Amend a Perfected and Sealed Order 18. Before addressing the substantive issues of quantum, this Court must first determine the preliminary issue raised in Civil Appeal No. KA-12ANCvC-5-08/2025: whether a sealed and perfected judgment can be materially amended by a Registrar.

The original judgment awarded RM40,000.00 for legal costs and RM40,000.00 for professional fees (totalling RM80,000.00), which order was duly sealed on 23 May 2025. However, on 14 August 2025, the learned Deputy Registrar allowed the Respondents’ application to amend the sealed order, collapsing the separate allocations into a single, global cost item of RM40,000.00.

The Appellants submit that the Sessions Court was functus officio because the Notice of Appeal had already been filed on 28 March 2025, thereby divesting the subordinate court of jurisdiction and transferring it to the appellate court. They further contend that a Registrar's powers are fundamentally procedural and interlocutory; altering a sealed judgment on costs falls outside this remit and is therefore ultra vires.

Costs awarded by the Sessions Court are governed by Order 59 Rule 23 of the Rules of Court 2012, which is reproduced below for …page 11 ease of reference: "Scale of costs for trial in the Subordinate Courts (O. 59 r. 23) [….] Judgment Sum: Exceeds RM500,000 Suing/Defending Advocacy: Discretionary but shall not exceed RM40,000"

The sum of RM40,000.00 represents the statutory cap in the Subordinate Courts for suing and advocacy costs prior to the Rules of Court (Amendment) 2025 [PU(A) 265/2025], which subsequently increased the discretionary range to between RM20,000.00 and RM50,000.00. Because this amendment came into force on 22 August 2025—after the date of the impugned alteration—this Court will apply the earlier, unamended version.

The Appellants rightly argue that the learned Deputy Registrar, in allowing the amendment, exercised powers exceeding those provided under the Subordinate Courts Act 1948 and the Rules of Court 2012. On a proper construction of Order 59 Rule 23, the RM40,000.00 discretionary cap applies specifically to advocacy costs alongside suing or defending costs. This is clear from the phraseology “suing/defending costs” and “advocacy” in the …page 12 Schedule, which materialise as entitlements of the prevailing party at the conclusion of a trial. The word “shall” followed by “be paid fixed costs” mandates that the purpose of the costs is explicitly partitioned. Consequently, the original judgment was correct in law in awarding separate costs for legal and professional fees.

The pivotal issue is whether the Sessions Court Registrar possessed the requisite jurisdiction to materially amend the costs after the order had been perfected. The material chronology shows that the Notice of Appeal was filed on 28 March 2025, thus invoking the appellate process. Once the Notice of Appeal was filed, the Sessions Court became functus officio in respect of the core judgment, and no officer of that court retained the jurisdiction to amend the sealed order.

Furthermore, the Registrar's actions were ultra vires the governing statutes. Under Section 19 of the Subordinate Courts Act 1948, any power to vary a judgment must be exercised strictly within the boundaries and manner prescribed by the Rules of Court. A Registrar's powers under Order 32 Rule 9 are strictly procedural and interlocutory; they do not extend to the final determination of substantive rights or the alteration of a perfected judgment. Had there been a genuine issue regarding the interpretation or modification of the judgment, Order 32 Rule 10 expressly required the Registrar to refer the matter back to the learned Sessions Court Judge—a course of action she failed to take. …page 13

The Registrar also breached procedural fairness by invoking Order 14A while refusing the Appellants an opportunity to file an Affidavit in Reply or to be heard, deciding the matter summarily in chambers.

Even assuming jurisdiction existed, the amendment is substantively erroneous in law as it contravenes the strict procedural limits of Order 59 Rule 23 of the Rules of Court 2012. Order 59 Rule 23 must be read conjunctively with the Schedule to the Rules, which clearly differentiates between "Costs of Suing" (“Kos Guaman/Dakwaan”) and "Advocacy/Professional Fees" (“Kos Kepeguaman”). The structure of the Schedule does not state that the RM40,000.00 figure is a combined ceiling; rather, it prescribes distinct maximum limits for each separate head of cost. By collapsing these two distinct heads into a single global figure, the Registrar acted outside the prescribed Schedule.

It is trite law that a court has no jurisdiction to alter or amend its own perfected order. A perfected order of a court cannot be set aside or altered except under narrow, specific exceptions—primarily to prevent a defect of justice or an abuse of the court's process—but never to substantively alter the determined rights of the parties. The court's inherent jurisdiction to rectify a sealed order is strictly confined to correcting clerical errors or ensuring the order accurately "reflects what was actually pronounced" (see the Federal Court decisions in Badiaddin bin Mohd Mahidin v Arab Malaysian Finance Bhd [1998] 1 MLJ 393; 2 CLJ 75 and Sang Lee Company Sdn Bhd & Ors v Munusamy Karuppiah [2010] 5 CLJ 229 (both are cited by the authorities quoted by the parties).) …page 14

Applying these established principles to the present case, the learned Registrar’s amendment falls far outside this narrow exception. The original award of separate costs was not a clerical error, nor was the amendment made to reflect what was actually pronounced. While the learned Registrar allowed the amendment on the premise that the original award was an "oversight," this assumption is entirely unsupported by the Court's minutes. By treating this substantive alteration as a mere "issue of law" in chambers without affording the Appellants a right to be heard, the Registrar acted in breach of natural justice and procedural rules, rendering the amendment a nullity.

Accordingly, I find that the Sessions Court was functus officio. The learned Deputy Registrar’s amendment is set aside, and the original sealed order awarding RM40,000.00 for legal costs and RM40,000.00 for professional fees individually is hereby reinstated.

The ‘global’ versus ‘component’ approach 31. Having dealt with the issue of amendment, this Court will now deal with the issue of quantum as appealed in KA-12B-7-04/2025. The Appellants argue that the Sessions judge had erred in awarding a consolidated, global award for three distinct injuries: (1) severe traumatic brain injury, (2) major neurocognitive disorders due to traumatic brain injury with behavioural disturbance and (3) physical impairment. …page 15

They argued that the approach of awarding a consolidated award runs contrary to established appellate precedents, where it dictates that courts must grant separate, distinct awards for separate injuries, or what is known as the component award approach.

33.

Having taken consideration of both parties’ submissions, this court finds that the question to be answered here is not the sum of the award per se, but whether the approach taken was appropriate under the law.

The Appellants relied on multiple cases at the appellate level to support their contention. In Yang Salbiah & Anor v. Jamil Harun [1981] CLJU 106; [1981] 1 MLJ 292, the Federal Court explicitly discouraged the practice of bundling distinct injuries into global awards because it obscures the underlying judicial rationale. One reason, as explained in the judgment, is that it does not reveal the reasoning behind the award of a certain amount in damages. Hence, the parties or the court above it cannot ascertain whether the amount is excessive or inadequate.

The Appellants illustrated that the practice of awarding global awards has been a discouraged practice at least from the time of Yang Salbiah. An example can be observed in the Court of Appeal …page 16 judgment in Siti Athirah Mohd Sapuan v. Razanatul Ain Hassan & Anor [2015] 6 CLJ 295, where the Court of Appeal held that the High Court had erred by granting a global award for all injuries and substituted it with distinct component awards for the fracture, scarring, and skin grafting. The same can also be seen in Kovalan Rajoo v. Hanif Muhamad Pauzi [2016] 2 CLJ 965, where at the High Court, Choo Kah Sing JC (now JCA) observed that granting a global award for separate pelvic fractures was inappropriate, as it risked setting an unhealthy precedent that ignores the specific gravity of distinct anatomical injuries. The decision in Yang Salbiah was cited as authority for discouraging the practice of awarding global costs.

In the Republic of Singapore, the Court of Appeal in Chai Kang Wei Samuel v Shaw Linda Gillian [2010] SGCA 22; [2010] 3 SLR 587 adopted a stance consistent with the principles articulated in Yang Salbiah. Although the judgment also made reference to the English decision of Moeliker v A Reyrolle and Co Ltd [1977] 1 All ER 9, where the English Court of Appeal indicated a global award is appropriate in the situation where the use of formulas, such as multiplicand methods, is not suitable, e.g., in loss of future earning capacity. Back to Malaysia, the Respondents submit that the Court of Appeal in Tan Cheong Poh & Anor v Teoh Ah Keow (1995) 3 MLJ 89 decided that a global award can be awarded where the injuries stem from one injury, the extent of overlap will be such that there would be a merger and allowance for overlapping in computing the award for pain and suffering and loss of amenities. However, given that these authorities are several decades old, they are largely …page 17 distinguishable from modern judicial trends and misaligned with current macroeconomic realities in personal injury valuation.

Thus, from the multitude of authorities across the decades and in three jurisdictions, at the very least, it is clear that the use of global awards has been judicially discouraged consistently. The Sessions court erred in awarding a global sum for three separate components of injury, thereby risking inadequate compensation. This Court finds that this case warrants appellate intervention, considering the judgment of the court below is plainly wrong in law.

Therefore, the global award of RM300,000.00 is inappropriately assessed and inadequately compensated; and thus, this Court substitutes the global award for separate heads of damages with RM150,000.00 for severe traumatic brain injury, RM150,000.00 for major neurocognitive disorder, and RM50,000.00 for physical impairment, totalling RM350,000.00. Each award will be elaborated in the following section.

The Quantum of Damages 40. In total, there are 13 heads of damages under appeal, including the three separate components of the severe head injury previously awarded a global sum. As the Sessions Court did not assess the 3 separate heads of damages for severe head injury individually, this Court will undergo the necessary evidential evaluation to determine the appropriate award. The remaining 10 heads would be evaluated …page 18 under appellate principles.

3.1. Severe traumatic brain injury 41. Medical reports show that the First Appellant suffered severe traumatic brain injury (TBI) with a Glasgow Coma Scale (GCS) score of 8/15, indicating the severity of the trauma. Further, the First Appellant sustained multiple intracranial injuries, including left frontal punctate haemorrhage, right lateral ventricle interventricular haemorrhage, left basal ganglia and right thalamus contusion, blood within the interpeduncular cistern, and right parietal scalp haematoma. This, in turn, causes the First Appellant to suffer from audio-visual hallucinations, severe memory impairment, lack of awareness of surroundings, uncooperative behaviour and significant cognitive impairment.

In Liong Thoo v. Sawiyah Hj. In Sirat & Ors [1981] CLJ Rep 171, the High Court was of the opinion that an award of damages for pain and suffering depends on the plaintiff's personal awareness of the said pain and suffering. Unconsciousness or vegetative states attract lower awards than severe brain damage cases.

The Appellants submitted that more recent case laws have supported that even conservative awards for severe TBI reach up to RM120,00.00 as illustrated at the Court of Appeal in Mohd Farhan bin Mohd Idris v Mohd Hishamuddin bin Harun (K- 04(W)-371-07/2019) and Mohamad Nasaruddin bin Mohd Nuri v …page 19 Mohd Firdaus Bin Mohd Isa and Fatimah binti Mat Isa (Appeal No.: K-04 (NCVC)(W)-339-06/2019).

The Respondents referred to Lee Eng Kiang v Kumareshannath a/l Doraisamy (2014) PILRU 57 and Kalairasan T Sukumaran v Khor Lye Choon [2010] MLRU 222 to support their contention that RM350,000.00 should be awarded collectively with other neurocognitive disorders.

This Court does not see any significant departure of the amount pleaded by the Appellants from the case laws referred by the Respondents, save for the fact that it was awarded collectively with neurocognitive disorders. In alignment with recent appellate trends, an assessment of RM150,000.00 is sustained for the severe traumatic brain injury.

3.2. Major neurocognitive disorders due to traumatic brain injury with behavioural disturbance 46. The Appellants submitted that RM200,000.00 is appropriate for this injury and further submitted that the First Appellant currently suffers from severe and permanent neuropsychiatric injuries and has been under continuous follow-up treatment at the Psychiatry Department of Hospital Sultanah Bahiyah. This is supported by several medical reports indicating as much. The Respondents maintain their prior argument that major neurocognitive disorders should be awarded collectively with severe TBI for RM300,000.00. …page 20

Applying the identical principles and comparative parameters discussed above, this Court assesses damages for the major neurocognitive disorder at RM150,000.00.

3.3. Physical impairment.

The First Appellant currently suffers from permanent physical impairment. This was submitted, but ought to have been assessed separately.

Specialists from both parties agree and confirm that the First Appellant suffers from a multitude of physical impairments including right hand finger past pointing; poor static and dynamic standing balance; power in right shoulder; elbow and hand reduced to 4/5 scale; poor grip strength and hand manipulation; poor coordination on finger-to-nose testing; poor trunk proprioception with swaying when standing; requires assistance when walking outdoors; frequent falls and poor walking endurance; abnormal, slow gait with narrowed strides; breathlessness after walking 20 metres; requires assistance to climb or descend stairs; and Berg Balance Score of 10/56, indicating severe balance impairment.

The Appellants seek an award of RM100,000.00 under this head of damages. In support, they referred to Azman Sulaiman v Muhammad Aqil Afdhal Ruslan & Anor [2017] MLRHU 1058, in which the High Court awarded RM180,000.00 for decreased dexterity of the right hand, right-sided weakness, gait abnormalities, …page 21 and inability to run smoothly. In contrast, the Respondents argued that physical injury was correctly subsumed under the award for severe head injury.

Taking into consideration the cases referred to, and that the physical impairments are partially contributed to by the cognitive impairment suffered and partially arising from the collision involving the First Appellant; accordingly, this Court determines that a sum of RM50,000.00 is a fair and reasonable valuation for the permanent physical impairment.

3.4. Right occipital skull fracture 52. The LSCJ awarded RM25,000.00 for the right occipital skull fracture. Taking into account current appellate trends for severe skull fractures associated with intracranial bleeding and loss of consciousness, this figure is manifestly inordinately low.

The Appellants relied on Rosniza Mohamad v. Halijah Abd Mansor & Another Case [2023] MLRHU 1961 and Mohd Farhan bin Mohd Idris v. Mohd Hishamuddin bin Harun (K-04(W)-371- 07/2019) to support this amount. The Respondents argue that the award does not warrant appellate intervention, as there are reported cases awarding the same RM25,000.00 at the Sessions Court, such as Muhammad Zairul bin Yahya v Zail bin Badarol Hisham & 2 Ors [2024] 1 PIR 28. …page 22

The reasoning for the award was not written down in the grounds of judgment. Considering that the authorities relied upon by the Appellants are at the appellate level, the amount of RM50,000.00 can be considered the current trend for skull fractures. Thus, the amount of RM25,000.00 is inordinately low. Accordingly, this Court substitutes the award with RM50,000.00 for the right occipital skull fracture.

3.5. Anosmia 55. The Sessions judge dismissed the injury as he agreed with the Respondents that there was no evidence in the ENT medical report that the First Appellant suffered it.

The Appellants submitted that two other specialists gave evidence that the First Appellant suffered from anosmia, i.e., the Appellants’ rehabilitation specialist and the Defendants’ neurosurgery specialist, who are both qualified medical practitioners involved in the assessment and management of traumatic brain injury and its neurological sequelae. This was uncontested by the Respondents.

They refer to Idris Yaacob v Boon Jong Fook [2020] PILRU 4 and Muhd Sabri Syafiq Mohamed Romli v Navinkumar Magendran [2021] MLRHU 2324 to support their claim for RM45,000.00.

The LSCJ misdirected himself in fact and law by completely dismissing this claim, despite clear, uncontested medical evidence …page 23 proving the First Appellant suffers from permanent anosmia. Dismissing a proven injury is a material misdirection of fact and law and thus warrants appellate intervention. Relying on the comparative trends for established anosmia, the dismissal below is set aside and replaced with an allocation of RM30,000.00.

3.6. Pain and suffering and loss of amenities (PSLA)

The LSCJ did not hand down a separate award for this head of injury, stating that this is already covered under the global award for severe head injury.

The Appellants submit that PSLA ought to be awarded separately from the award for the severe head injury per se. They argued that the award for severe head injury only compensates for the structural damage to the brain, not the lifelong experiential suffering, loss of dignity, or the continuing anguish of repeated surgeries.

They highlighted that the Plaintiff was a normal, academically active 16-year-old before the accident. Post-accident, his life is characterised by cognitive devastation, total physical dependency, and extreme pain and suffering from repeated invasive airway surgeries.

The Appellants relied on Jackson Rechikadas v. Lau Ah Piau [2020] 3 MLRH 173 to support their contention that loss of amenities may be awarded separately. The claim that the LSCJ had erred in …page 24 not doing so, as an award under this heading, would compensate for the deprivation of the ability to live a normal life, enjoy ordinary pleasures, and enjoy independence, dignity, and social interaction. However, I find that the authority does not support the Appellant’s contention. It is a trite law that pain and suffering are included in general damages. The only exception is when pain and suffering are not compensable, but loss of amenities is, such as in the case where the plaintiff is unconscious. This principle was laid down by the House of Lords in Lim Poh Choo v. Camden and Islington Area Health Authority [1979] 2 All ER 910.

It is settled law that damages awarded for specific physical and psychiatric injuries inherently compensate for the pain, suffering, and loss of amenities flowing directly from those injuries. Granting a massive, separate blanket award under this head would amount to double recovery. Therefore, I find that the Sessions judge did not err in law in awarding PSLA inclusively with general damages for severe head injury to avoid double compensation. The only error was awarding it as a global award. Thus, this Court maintains that PSLA is already sufficiently compensated in the substituted award of RM150,000.00 for severe traumatic brain injury, RM150,000.00 for major neurocognitive disorder, and RM50,000.00 for physical impairment, totalling RM350,000.00.

3.7. Loss of earning capacity 64. The Appellants submit that the LSCJ had erred by denying this claim simply because the 16-year-old Plaintiff was a student at the …page 25 material time and thus did not generate any income.

The Appellants further submit that this is a departure from the law as stated in Ngooi Ku Siong & Anor v. Aidi Abdullah [1984] 1 MLRA 200, where loss of future earnings or loss of earning capacity may be awarded regardless of whether the plaintiff was employed at the time of the accident or trial. This is provided the court is satisfied that there exists a real or substantial risk that the plaintiff’s earning capacity will be adversely affected in the future.

The Respondents, of course, agree with the LSCJ’s findings that the lack of income should be a factor in considering the appropriateness of an award. They further submit that the Supreme Court in Tan Kim Chuan v Chandu Nair [1991] 2 MLJ 42 held that section 28A(2)(c)(i) and (ii) of the Civil Law Act 1956 precludes and bars an award for prospective loss of future earnings if the plaintiff was unemployed and school-going and thus, was not receiving earnings by his own labour.

From a perusal of further case laws, this position of refusing loss of future earnings for a school-going student is an anomaly and not adopted across the board. Decisions at the Federal Court in Yang Salbiah and at the Supreme Court in Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] 2 MLJ 201 had agreed, independently in the former and explicitly in the latter, with the approach taken in Ngooi Ku Siong that unemployment due to a school-going or tender age does not preclude an award from loss of …page 26 future earnings.

This Court also echoes the sentiments of the perennial luminaries of the time in both Yang Salbiah and Yap Yang Fong, where there is no doubt that had the First Appellant not been injured, he would undoubtedly have made an income for himself upon completing his studies. It would be unjust and cruel to the First Appellant, as the victim of this whole ordeal, to deny this fact.

The correct test is thus whether there exists a real or substantial risk that the Plaintiff's future earning capacity will be adversely affected. Given the undisputed medical consensus that the Plaintiff suffers from a major neurocognitive disorder and is permanently unemployable, this Court allows this appeal and awards RM150,000.00 for this heading.

3.8. Loss of consciousness 70. In addition to the general principles of appellate intervention where there is a clear and material error of law or principle, in cases involving personal injury claims, appellate intervention also applies when the award is manifestly inordinately low or a wholly erroneous estimate of the loss.

At the court below, an award of RM3,000.00 was granted for this head of damages. The Appellants submit that the appropriate award is RM6,000.00, as supported by the authorities cited. Although the …page 27 Appellants were correct to submit that the Sessions judge did not disclose the reasoning for this amount, this Court does not find it inordinately low. This Court upholds the amount awarded by the Sessions Court 3.9. Tracheostomy and site complications 72. The Appellant submitted that the Sessions Court had erred in awarding a sum of RM100,000.00 for tracheostomy and the complications arising from it due to its invasive nature, duration, severity, and life-threatening risks associated with the procedure.

The Appellants further submit that RM300,000.00 is the appropriate award for this injury according to authorities. The Respondents submit that this award is, instead, inordinately high, and authorities have cited awards of RM10,000.00 for the procedure.

The Respondents' contention is well-founded to the extent that the tracheostomy procedure, viewed in isolation, does not justify an award of RM100,000.00. However, taking into consideration the multiple complications arising from the procedure and the extended, chronic consequences of those complications, this Court finds that RM100,000.00 is a reasonable sum and was not wholly erroneous. Thus, this Court declines to interfere with the award under this heading. …page 28

3.10. Facial fractures 75. The LSCJ awarded a sum of RM40,000.00 for the First Appellant’s left maxillary wall fracture, right supraorbital fracture, and zygomatic fracture. The Appellants submit that this was in error and argue that the correct sum lies between RM42,000.00 and RM50,000.00, citing the authorities.

This Court does not find the award wholly erroneous or inordinately low. Appellate intervention is not warranted simply because one prefers a slightly higher sum. Thus, again, this Court declines to interfere with the award under this heading.

3.11. Cellulitis 77. An award of RM5,000.00 was handed down for this injury by the Sessions Court. The Appellants argue that this was wholly erroneous and that it should be substituted with RM10,000.00 based on a single authority.

Again, this court does not find the award wholly erroneous or inordinately low. Appellate intervention is not warranted simply because one prefers a slightly higher sum. Thus, this Court declines to interfere with the award under this heading. …page 29

3.12. Periorbital hematoma 79. The LSCJ awarded RM10,000.00 for this injury. The Appellants submit that this was in error and that the appropriate award is RM15,000.00, in accordance with prevailing judicial standards.

Notably, the range provided by the Appellants’ authorities is RM10,000.00 to RM15,000.00. The Appellants argue that there was an added injury of conjunctival chemosis to aggravate the injury.

I disagree. This Court does not find the award wholly erroneous or inordinately low. Again, appellate intervention is not warranted simply because one prefers a slightly higher sum. Thus, this Court declines to interfere.

3.13. Tracheocutaneous fistula scar 82. With respect to tracheocutaneous fistula scar, the LSCJ awarded RM2,000.00, which the Appellants submitted was inordinately low and made in error.

Based on the Defendant's own rehabilitation specialist, the First Plaintiff suffers from permanent scarring at the tracheostomy site. Considering the severity of the scarring, the Appellants correctly submitted that RM2,000.00 is inordinately low. While this Court declines to interfere with the majority of the minor and secondary …page 30 injury awards (such as loss of consciousness, tracheostomy, and facial fractures) as they were not wholly erroneous estimates, the award of RM2,000.00 for the visible tracheocutaneous fistula scar at the lower neck is manifestly low. This Court substitutes it with an award of RM5,000.00.

Correctness of special damages 84. This Court will now move on to the special damages as awarded by the LSCJ. Under this, there are three separate headings: future nursing care, multidisciplinary team treatment, and medication costs for psychiatric medication.

4.1. Future nursing care 85. The LSCJ awarded RM2,800.00 per month for a duration of 227 months. This decision must be set aside as it was based on an obsolete, unpleaded quotation for a defunct facility (Nature's Care Nursing Home). The Appellant had formally amended their Statement of Claim via Enclosure 27 to explicitly plead the proven cost of RM21,000.00 per month for institutional care at Regen Rehabilitation Hospital. Furthermore, limiting the care duration to 227 months directly contradicted the undisputed consensus of the medical experts from both sides, who agreed that the First Plaintiff’s remaining life expectancy extended for 40 years, equivalent to 372 months at the date of assessment. …page 31

It is plain that the maker of the report that the LSCJ relied on to award the sum gave evidence that Nature’s Care Nursing Home, which he quoted from, was no longer operational. Although this was in the Appellants’ original statement of claims, it has since been amended following confirmation from the report's maker. A fresh report was obtained from Regen Rehabilitation Hospital, which cited RM21,000.00 per month.

Further, the LSCJ did not provide a basis for the duration of 227 months. This runs contrary to evidence from medical experts indicating that the First Appellants’ life expectancy was 40 years, or 372 months. This was agreed by both expert witnesses.

The LSCJ provided no reasons to justify ignoring the expert consensus on lifespan, nor did he explain how RM2,800.00 could fund the required care at Regen Rehabilitation Hospital. As emphasised by the Federal Court in Dr Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim & Anor [2017] 1 LNS 2112, a trial judge has a duty to clearly state the reasons for their findings. The failure to do so renders this a "non-speaking decision." In cases of misapprehension of the facts, appellate intervention is required. Accordingly, I substitute the award with RM21,000.00 per month for the proven duration of 372 months.

4.2. Multidisciplinary team treatment (MDT)

The LSCJ erred in refusing the costs for MDT treatment at Regen …page 32 Rehab on the premise that government hospitals provide such care for free.

This Court finds merit in the Appellants' submission that the right to claim private medical expenses cannot be restricted or defeated purely on the abstract availability of parallel public welfare facilities. The Court of Appeal judgment in Muhammad Yassein Zuliskandar (a child suing through his father and next friend, Zuliskandar Md Pechor) v Kerajaan Malaysia & Ors [2019] 4 CLJ 289 explains the test to determine whether medical costs and expenses incurred in a private hospital claimed by plaintiff is through the test of reasonableness as affirmed in the Federal Court in Inas Faiqah Mohd Helmi (a child suing through her father and next friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885; [2016] 2 MLJ 1.

In Muhammad Yassein Zuliskandar, the Court of Appeal further elucidated the test of reasonableness. [12]….First, the plaintiff must justify why he chooses treatment at a private hospital over a public hospital. Secondly, the plaintiff must show that the cost of treatment at a private hospital was reasonable. In determining whether it is, or was, reasonable or justifiable in resorting to treatment at a private hospital, there can be no fixed or inflexible rules simply because of the myriad of reasons or circumstances why treatment is sought or intended to be sought at a private hospital.

In this case, there was unchallenged expert evidence showing that …page 33 government hospitals cannot meet the Plaintiff’s structured, home-based therapeutic needs. This Court also finds it reasonable in the Appellant’s reasoning that, if such treatment were available at government facilities, the First Appellant would have received referrals over the entire seven years. Further, as elderly parents, it would be unreasonable for them to repeatedly transport the First Appellant to Hospital Sultanah Bahiyah if such treatment is available at government facilities.

It is therefore crystal clear that the LSCJ erred in refusing the costs for MDT treatment on the premise that government hospitals provide such care for free. Private medical expenses cannot be denied purely on the abstract availability of public facilities, particularly where—as in the present case—the Respondents' own expert conceded during cross-examination that public hospitals cannot adequately provide the structured, home-based therapeutic regimen required by the victim. Accordingly, the full pleaded sum of RM51,985.00 for future MDT treatment is hereby allowed.

4.3. Medication costs for psychiatric treatment 94. The LSCJ misdirected himself in fact by dismissing the RM101,948.15 claim for psychiatric medication on the basis that it was not pleaded.

A review of the records reveals this is factually incorrect; it was explicitly pleaded under "Kos perubatan" (item 31, Statement of …page 34 Claims) and supported by undisputed expert testimony. The amount claimed is wholly substantiated by evidence and expert testimony, including SP-3, for a life expectancy of approximately 31 years. The claim consists of long-term medication for psychiatric disorders, namely Epilim (2 doses) and Olanzapine (single dose), which are sold at RM1.17 and RM6.67, respectively. Through a multiplier of 31 years, the Appellant arrived at the figure of RM101,948.15. This Court therefore sets aside the summary dismissal ordered by the Sessions Court and orders that the sum of RM101,948.15 be paid under this specific head.

Correctness of interest rates 96. The last point of appeal is the correctness of awarding a 2.5% per annum interest rate for special damages from the date of the accident until the date of the judgment. There was no explanation from the LSCJ for awarding such an irregular rate, as other interest rates were awarded at the usual 5% per annum.

According to Arahan Amalan Ketua Hakim Negara Bilangan 1 Tahun 2013, the interest rates of judgments are fixed at 5% per annum.

In the Court of Appeal decision of Metro Gain Sdn Bhd v Commerce Assurance Bhd [2014] 3 CLJ 482, the Court of Appeal had made it clear that fixing an interest rate at 5% per annum is guidance that ought to be followed and thus, is the standard rate for …page 35 awards and judgment sums. This Court concurs with the Appellants' submissions that adherence to this rate is essential to maintain structural uniformity and commercial certainty across judicial awards.

Thus, this Court concurs with the Appellants that this deviates without valid justification from the Chief Justice’s Practice Direction and binding appellate authorities, which mandate a standard 5% interest rate for judgment sums. This Court therefore varies the interest rate to 5% per annum from the date of the accident until the date of full settlement.

Conclusion Upon careful consideration of the memorandum and records of appeal, as well as submissions both oral and written, this Court finds that this case warrants appellate intervention. This Court accordingly allows this appeal and orders the following —

(i). Substitute the global award of RM300,000.00 for severe head injury with RM150,000.00 for severe traumatic brain injury, RM150,000.00 for major neurocognitive disorder, and RM50,000.00 for physical impairment;

(ii). Set aside the dismissal for anosmia and award RM30,000.00; …page 36

(iii). Uphold dismissal for pain and suffering and loss of amenities;

(iv). Set aside the dismissal for loss of earning capacity and award RM150,000.00;

(v). Uphold and maintain awards for loss of consciousness, tracheostomy and other complications, facial fractures, cellulitis, and periorbital hematoma;

(vi). Substitute the award for Trachea cutaneous fistula scar from RM2,000.00 to RM5,000.00;

(vii). Substitute the award for future nursing care from RM2,800.00 per month for 227 months to RM21,000.00 per month for 372 months;

(viii). Set aside the dismissal for MDT costs and award RM51,985.00 for future MDT treatment;

(ix). Set aside the dismissal for psychiatric medication required for the First Plaintiff and award RM101,948.15;

(x). Substitute 2.5% to 5% special damages as the rate of receipt. Dated 27th May, 2026 …page 37 ..................................................................................... YA Dr Hj. John Lee Kien How @ Mohd Johan Lee Judge High Court of Malaya Alor Setar For the Plaintiffs: Saravana Kumar Messrs. Jega Kumar & Partners, Advocates & Solicitors For the Defendants: Justin Tay Messrs. Shan & Su Advocates & Solicitors …page 38 Authorities Cases Azman Sulaiman v. Muhammad Aqil Afdhal Ruslan & Anor [2017] MLRHU 1058 Chai Kang Wei Samuel v. Shaw Linda Gillian [2010] 3 SLR 587 Dr Hari Krishnan & Anor v. Megat Noor Ishak Megat Ibrahim & Anor And Another Appeal [2017] 1 LNS 2112; [2018] 3 CLJ 427 Gee Eng Wah v. Teoh Eng Keong & Anor [2020] 1 MLRA 22 Idris Yaacob v. Boon Jong Fook [2020] PILRU 4 Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 1 MLRA 647; [2016] 2 CLJ 885; [2016] 2 MLJ 1 Kalairasan T Sukumaran v. Khor Lye Choon [2010] MLRU 222 Khairul Anuar Bin Mohamad Nordin & 2 Ors v. Muhammad Syamsul Amin Bin Syafawi & Anor [2024] AMEJ 2121 Kovalan Rajoo v. Hanif Muhamad Pauzi [2016] 2 CLJ 965 Lee Eng Kiang v. Kumareshannath a/l Doraisamy [2014] PILRU 57 Liong Thoo v. Sawiyah Hj. In Sirat & Ors [1981] CLJ Rep 171 Metro Gain Sdn Bhd v. Commerce Assurance Bhd [2014] 3 CLJ 482 Mohamad Nasarudin Bin Mohd Nuri v. Mohd Firdaus Bin Mohd Isa dan Lain-lain (2019) Appeal No. K-04(NCVC)(W)-340-06/2019 Mohd Farhan Bin Mohd Idris sebagai Orang Ketidakupayaan yang mendakwa melalui Litigasi Azizah Binti Yusof v. Mohd Hishamuddin Bin Harun (2019) Appeal No. K-04(W)-371-07/2019 Muhammad Yassein Zuliskandar (A Child Suing Through His Father And Next Friend; Zuliskandar Md Pechor) v. Kerajaan Malaysia & Ors [2019] 4 CLJ 289; [2019] 1 MLRA 566 Muhammad Zairul bin Yahya v. Zail bin Badarol Hisham & 2 Ors [2024] 1 PIR 28 Muhd Sabri Syafiq Mohamed Romli v. Navinkumar Magendran [2021] MLRHU 2324 Ngooi Ku Siong & Anor v. Aidi Abdullah [1984] 1 MLRA 200; [1985] 1 MLJ 30 Rosniza Binti Mohamad v. Halijah Binti Abd Mansor [2023] AMEJ 2453 Saifudeen Apandi & Anor v. Lenggang Nuing [2011] PILRU 109 Sang Lee Company Sdn Bhd & Ors v. Munusamy Karuppiah [2010] 5 CLJ 229 Siti Athirah Mohd Sapuan v. Razanatul Ain Hassan & Anor [2015] 6 CLJ 295 …page 39 Syed Abu Bakar Ahmad v. Public Prosecutor [1984] 1 CLJ Rep 368 Tan Yu Min Winston (by his next friend Tan Cheng Tong) v. Uni-Fruitveg Pte Ltd [2008] 4 SLR 825 Thrimalai Palamiappan & Anor v. Mohd Masry Tukimin [1986] 1 MLRH 272 Yang Salbiah & Anor v. Jamil Harun [1981] 1 LNS 106 Yang Yap Fong & Anor v. Leong Pek Hoon & Anor [1987] 1 MLRA 187; [1987] 2 MLJ 201