Nik Muhammad Haziq Bin Nik Hatim v Lim Zi Hwei (BA-12B-11-01/2024)

NIK MUHAMMAD HAZIQ BIN NIK HATIM (No. K/P.: 950123-10-5013)

ROKEI BIN SAFI-IN (No. K/P.: 820702-03-5229) …APPELLANTS AND LIM ZI HWEI …RESPONDENT (No. KP.: 810711-08-6280) [IN THE SESSIONS COURT AT BANDAR BARU BANGI IN SELANGOR DARUL EHSAN, MALAYSIA SUIT NO. BI-A53KL-106-03/2020 BETWEEN LIM ZI HWEI (No. KP.: 810711-08-6280) …PLAINTIFF

NIK MUHAMMAD HAZIQ BIN NIK HATIM (No. K/P: 950123-10-5013)

ROKEI BIN SAFI-IN (No. K/P: 820702-03-5229) …DEFENDANTS] GROUNDS OF JUDGMENT

This is an appeal by the Appellants/Defendants against part of the decision of the learned Sessions Court Judge (SCJ) following a full trial in a road traffic accident claim.

Liability was not in dispute. The appeal concerns solely the quantum of general damages awarded for three injuries, namely cerebral concussion (head injury), waist/pelvis injury, and stomach/abdominal injury.

The Appellants contended that the awards were excessive and unsupported by the medical evidence, whereas the Respondent/Plaintiff maintained that the awards were fair and justified.

After considering the parties’ written and oral submissions, this Court allowed the appeal on quantum for the reasons set out below.

This appeal arises from a road traffic accident that occurred on 30 March 2014 at about 5.00 pm on Persiaran Jaya, Bandar Baru Bangi.

At the material time, the Respondent was driving her vehicle, no. WUC 1107, and was stationary at a traffic light when her vehicle was struck from behind by the vehicle no. AFN 9283, driven by the First Appellant, resulting in a chain collision.

The matter proceeded to a full trial before the Sessions Court at Bandar Baru Bangi. At the conclusion of the trial, the learned SCJ found the Appellants 90% liable for the accident.

The Sessions Court awarded the Respondent general damages of RM58,000.00 for the following injuries: a. eye injury – RM3,000.00. b. cerebral concussion (head injury) - RM20,000.00. c. waist/pelvis injury - RM25,000.00. d. stomach/abdominal injury - RM10,000.00.

The Sessions Court also awarded special damages of RM18,342.80, which were not the subject of this appeal.

The Appellants were dissatisfied with the quantum of general damages awarded for three injuries, namely to the head, waist and stomach. Hence, this appeal concerns only those three items of general damages awarded.

I am reminded that an Appellate Court should be slow in interfering with a finding of fact by a trial court (see: Sornaratnam & Anor v Ramalingam [1981] 1 MLJ 24; Privy Council case of Tan Chow Soo v Ratna Ammal [1969] 2 MLJ 49; China Airlines Ltd. v Maltran Air Corp Sdn. Bhd. (formerly known as Maltran Air Services Corp Sdn. Bhd.) and another appeal [1996] 2 MLJ 517; Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209 at 211.

As explained in Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395, an appellate court will intervene only where the trial court has acted on faulty judicial reasoning, misdirected itself on the facts or the law, or reached a conclusion that is plainly unsustainable. A mere difference of opinion is insufficient.

An assessment of damages is more akin to an exercise of discretion than to an ordinary act of decision. The appellate court is particularly slow to reverse the trial judge’s findings on the amount of damages. Before intervening in an award of damages, the Court must be satisfied that the judge has acted on a wrong principle of law, has misapprehended the facts, or has, for other reasons, made a wholly erroneous estimate of the damage suffered.

The principles governing an appellate court’s interference with an award of damages are well established. In Mahmod bin Kailan v Goh Seng Choon & Anor [1976] 2 MLJ 239, the Federal Court, adopting the approach in Davies v Powell Duffryn Associated Collieries Ltd and Flint v Lovell, held that the assessment of damages is essentially an exercise of judicial discretion. Consequently, an appellate court is particularly slow to interfere with a trial judge’s award on quantum. Interference is justified only where it is shown that the trial judge acted on a wrong principle of law, misapprehended the facts, or, for those or other reasons, made a wholly erroneous estimate of the damages. It is not sufficient that the appellate court might have preferred a different figure; the scale must weigh heavily against the impugned award before interference is warranted.

This position was reaffirmed by the Federal Court in Topaiwah v Salleh [1968] 1 MLJ 284, where it was emphasised that damages are a matter of assessment, not calculation. An appellate court should not disturb an award merely because it would have awarded a lesser or greater sum, and may do so only if the amount awarded is so extremely high or so very low as to amount to an entirely erroneous estimate of the damage suffered.

In more recent authority, the Federal Court in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 clarified that a decision may be regarded as “plainly wrong” where there was no or insufficient judicial appreciation of the evidence; a demonstrable misunderstanding of the evidence; a failure to consider relevant evidence; or a material error of law, such that the decision could not reasonably be explained or justified.

Upon perusal of the Record of Appeals and having considered the parties' written and oral submissions, I find that an appellate intervention is warranted in this appeal. My reasons are set out below.

I have reviewed the evidence and the learned SCJ's written Grounds of Judgment and find that the learned SCJ has failed to decide the case on the evidence before the Court. The learned SCJ has misapprehended the facts and made a wholly erroneous estimate of the damage suffered. Based on the evidence before the Court, I find that the damages awarded are not reasonable, unjustified and excessive for head, waist and stomach injuries.

The Respondent’s case was that she sustained a cerebral concussion as a result of the accident, supported by medical reports from Gleneagles Hospital and the testimony of the treating doctor.

The learned SCJ had awarded a sum of RM20,000.00 for the head injury described as cerebral concussion.

The Appellants did not dispute that a cerebral concussion had occurred or that the Respondent had suffered loss of consciousness. The dispute concerned only the severity and the appropriate quantum.

The medical report prepared by Dato’ Dr Jagdeep Nanra, Consultant Neurosurgeon, recorded that upon examination, the Respondent had a full Glasgow Coma Scale (GCS) score of 15/15. The report further confirmed that the Respondent was haemodynamically stable, with equal and reactive pupils, a normal neurological examination, and only a 1.5 cm laceration scar over the right supra-orbital region. Importantly, the MRI scan of the brain revealed no evidence of intracranial injury. There was also no indication of any neurological deficit or residual disability arising from the accident.

While the Respondent relied on the evidence of SP3 and contended that the diagnosis of cerebral concussion was not challenged at trial, this Court noted that the existence of a diagnosis alone is not determinative of quantum. The assessment must ultimately be grounded in the severity of the injury, the objective medical findings, and the presence or absence of lasting effects. In the present case, no specialist neurological report was adduced to show any lasting impairment, nor was there evidence that the Respondent suffered any residual disability following the accident.

This Court noted, however, that although the Sessions Court stated that it had considered the authorities, no reasons were given for why the sum of RM20,000.00 was appropriate in light of the Respondent’s actual medical condition.

Importantly, the Sessions Court did not explain why the Respondent’s injury warranted an award significantly higher than the figure suggested in the Compendium of Personal Injury Awards (Revised as at 17 April 2014), or how the medical findings justified a departure from awards in comparable cases cited by the Appellants.

This Court finds merit in the Appellant’s reliance on comparable authorities. In Thineshwaran a/l Ramesh v Yushaini bin Abd Rahni & Anor [2023] 2 PIR 49, the Sessions Court awarded RM6,000.00 for loss of consciousness. Similarly, in Ismail bin Daud v Muhammad Syafiq bin Abd Jalil [2023] 2 PIR 32, the High Court awarded RM5,000.00 for cerebral concussion. In Muhammad Nur Hafiz Fahim bin Rahim v Mat Saad bin Haron & Anor [2023] 2 PIR 34, the High Court awarded RM6,000.00 for cerebral concussion with loss of consciousness. These cases involved injuries of a comparable nature and provided a more appropriate benchmark.

The cases cited by the Respondent, including Idris bin Adam v Felcra Bhd [2014] 7 MLJ 629 and the other authorities relied upon by the Respondent, were noted by the Court to involve additional features, such as frontal intraparenchymal bleeding with memory impairment (in the case of Mohd Bakren Bin Dolah Sajit v Amirul Affendy Bin Azman & Anor [2022] MLJU 1702), head injury with disability (in the case of Seeni Ibrahim Naina Mohamed & Satu Lagi v Mohd Fazli Sulaiman [2016] 1 LNS 1181), or head injury and retrograde amnesia (in the case of Windah Permatasari bt Imran & Satu Lagi v Law Chee Soon & Satu Lagi [2020] MLJU 2632). Such features were absent in the present case. The medical evidence before the Court did not show any complication, permanent impairment, or lasting neurological consequence arising from the head injury.

Having regard to the objective medical evidence, the absence of intracranial injury, the full GCS score, and the lack of residual disability, and guided by the range provided in the Compendium of Personal Injury Awards, this Court is satisfied that the award of RM20,000.00 was not adequately justified and was manifestly excessive. A sum of RM6,000.00 was fair, reasonable, and proportionate to the injury suffered and consistent with decided cases.

Accordingly, the award for cerebral concussion was set aside and substituted with RM6,000.00.

The learned SCJ awarded RM25,000.00 for what was described as a waist, pelvis, or hip injury. After considering the Record of Appeal, the medical evidence, and the submissions of both parties, this Court was satisfied that the evidence did not support the award and that it could not be sustained.

The Appellant submitted that the award was manifestly excessive and unjustifiable, as there was no medical evidence establishing that the Respondent had suffered any waist injury or “kecederaan pinggang”.

This Court noted that none of the three (3) medical reports tendered by the Respondent recorded any diagnosis or finding of a waist, pelvis, or hip injury. The alleged injury appeared only in the Respondent’s Statement of Claim, without any corresponding medical confirmation.

The Appellant further submitted that the Respondent had failed to adduce evidence to show that she suffered a waist injury that necessitated physiotherapy. In this regard, it is material that, during oral submissions before this Court, learned counsel for the Respondent admitted that there was no medical record evidencing a waist or pelvic injury, save for the physiotherapy bills relied upon by the Respondent. No specialist report, radiological investigation, or contemporaneous medical note was produced to identify or substantiate the alleged injury.

The Respondent contended that she had suffered a lower back injury requiring physiotherapy and relied on her testimony that her “pinggang belakang” was injured. The Respondent also argued that the referral for physiotherapy by Dato’ Dr Jagdeep Nanra supported the existence of the injury, and that the Appellant’s failure to cross-examine her on this issue amounted to an acceptance of her evidence, relying on Griffiths v TUI UK Ltd. [2024] 2 All ER 185.

This Court was not persuaded. While the Respondent’s testimony and the fact of physiotherapy were not in dispute, physiotherapy bills alone, without an underlying medical diagnosis or clinical findings, were insufficient to establish a compensable waist or pelvic injury. The mere fact of referral for physiotherapy, without a medical report identifying the nature and extent of the injury treated, did not discharge the Respondent’s burden of proof.

I agree with the Appellant’s contention that the failure to cross-examine a witness on a particular issue does not displace the fundamental burden of proof, which rests on the party asserting the injury. The principle articulated in Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 makes clear that non-cross-examination goes to credibility. It does not cure an absence of evidence. In the present case, the issue is not credibility but the absence of medical proof of the alleged injury.

It is trite that damages are compensatory, not punitive, and are not intended to enrich a plaintiff unjustly. The principles set out in Appalasamy a/l Bodoyah v Lee Mon Seng [1996] 3 CLJ 71 and Ong Ah Long v Dr S Underwood [1983] 2 CLJ 198 emphasise that an award of damages must be fair and reasonable, reflecting only the injury proven and the loss sustained.

Therefore, in the absence of proof of a waist or pelvic injury, the award made by the learned SCJ could not be justified.

The authorities relied upon by the Respondent, including Azmah Sulaiman & Satu Lagi v Kim Fu Kheang & Satu Lagi [2010] PILRU 20 and Hashim Ali v Yahya Abdullah [016] 1 LNS 767, were distinguishable, as those cases involved injuries that were medically identified and supported by evidence. No such evidential foundation existed in the present case.

This Court further observed that the learned SCJ did not provide any explanation or reasons for awarding general damages in relation to the alleged waist injury, despite the absence of medical evidence establishing that injury. This omission further undermined the basis for the awards.

In the circumstances, this Court finds that the Respondent has failed to prove, on a balance of probabilities, that she suffered a compensable injury to the waist, pelvis, or hip arising from the accident. The award of RM25,000.00 is therefore unjustifiable, manifestly excessive, and unsustainable.

Accordingly, the appeal on this issue was allowed, and the award of RM25,000.00 for a waist/pelvis/hip injury is set aside in its entirety.

The learned SCJ awarded RM10,000.00 for stomach or abdominal injury. Having considered the Record of Appeal, the medical evidence, and the submissions of both parties, this Court is satisfied that the evidence did not support the award and that it could not be sustained.

The Appellant submitted that the Respondent had complained only of epigastric pain and persistent nausea, and that there was no medical document establishing any specific stomach or abdominal injury, nor any residual injury.

The Appellant relied on Lim Kee Thiam v Rashid bin Sunggoh [2023] 2 PIR 6, in which RM2,500.00 was awarded for a proven intra-abdominal injury, and submitted that the RM10,000.00 award in the present case was excessive.

The Respondent relied on her testimony and the fact that she underwent an oesophago-gastro-duodenoscopy (gastroscopy) performed by Dr Yunus Gul, a gastrointestinal surgeon, as reflected in the gastrointestinal surgeon’s charges and the charges for the use of equipment for the procedure (gastroscopy bills) in the Record of Appeal. The Respondent argued that it would not have been reasonable for the doctors to subject her to such a procedure if there had been no indication of injury, and further contended that her evidence was not challenged during cross-examination.

This Court is not persuaded. Although it is not disputed that the Respondent complained of epigastric pain and underwent a gastroscopy, no medical report or findings from that procedure were produced. Significantly, during oral submissions before this Court, learned counsel for the Respondent admitted that no medical report was tendered to show the outcome or findings of the gastroscopy, and that the Respondent relied only on the gastroscopy bills.

The mere fact that a diagnostic procedure was undertaken does not, without more, establish the existence of a stomach or abdominal injury. In the absence of a medical report recording the findings of the gastroscopy or a diagnosis of injury, there is no objective medical evidence to support the claim under this head that the injury was caused by the accident. If the Respondent had indeed undergone treatment under a gastrointestinal specialist, a medical report on the findings would reasonably be expected. The absence of such a report was fatal to the claim.

The Appellant also stated that the gastroscopy bills had already been awarded as special damages, which is not the subject of this appeal. In these circumstances, the award of general damages for stomach injury, in the absence of proof of injury, could not be justified.

The Respondent’s reliance on authorities and on the principle that the trial court had observed the witnesses did not assist her. The difficulty in the present case did not lie in credibility but in the absence of medical evidence establishing that a stomach or abdominal injury was sustained as a result of the accident. Without proof of injury, considerations of inflation or comparative quantum did not arise.

Once again, the learned SCJ did not explain how the sum of RM10,000.00 was arrived at in the absence of such evidence.

In the circumstances, this Court finds that the Respondent has failed to prove, on a balance of probabilities, that she suffered a compensable stomach or abdominal injury arising from the accident. The award of RM10,000.00 was therefore unjustifiable, excessive and unsustainable.

Accordingly, the appeal on this issue was allowed, and the award of RM10,000.00 for stomach/abdominal injury was set aside.

It was also noted that, during oral submissions before this Court, when the Court requested the Respondent to identify the relevant cross-examination conducted at the trial, learned counsel for the Respondent realised that the Notes of Evidence had not been included in the Record of Appeal. The Respondent subsequently argued that this omission was fatal to the appeal and that the Respondent was prejudiced as a result.

The Appellant candidly admitted that the omission of the Notes of Evidence was due to their oversight. However, the Appellant maintained that any injury claimed must be strictly proved by medical evidence, and that it was not the Appellant’s burden to prove what was merely pleaded in the Statement of Claim. The burden of proof remained on the Respondent.

Having considered these submissions, this Court is of the view that, although it was indeed the Appellant’s duty to ensure that the Notes of Evidence were included in the Record of Appeal, the omission was never raised or objected to by the Respondent at the outset. It was neither raised in the written submissions nor during the oral submissions until the matter was specifically queried by the Court. In fact, learned counsel for the Respondent only became aware of the omission when prompted by the Court. This clearly indicated that the Respondent had not taken any objection to the omission earlier. In these circumstances, the Court was unable to see how the Respondent had suffered any real prejudice.

In any event, this Court is of the view that, regardless of whether the Notes of Evidence were included, the decisive issue remained whether the medical reports proved the alleged waist and stomach injuries. On this point, learned counsel for the Respondent admitted that there were no medical reports establishing either injury, and that reliance was placed solely on bills for procedures allegedly undertaken.

As stated earlier, bills alone, or the fact that witnesses were not cross-examined, are insufficient to prove the existence of an injury. The law requires that personal injuries be established by medical evidence, which was not produced in this case. Accordingly, the absence of the Notes of Evidence was irrelevant to the determination of this issue; therefore, whether the Notes of Evidence were included or otherwise would not have altered the outcome.

For the reasons stated above, I therefore order that the appeal be allowed. The general damages for the head injury are reduced to RM6,000.00, and the damages awarded for the waist and stomach injuries are set aside. The Respondent is to pay the costs of RM5,000.00. Dated 29 December 2025 -SGD-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Appellants : Esther Ong (Messrs V P Nathan & Partners) For the Respondent : Lim Meng Guan and Aisya (Messrs Zi & Associates)