Nurul Munirah Binti Abdullah v Shahbadrul Azmi Bin Zulkefli (DA-12B-39-12/2025)

NURUL MUNIRAH BINTI ABDULLAH

MOHAMAD FAIZA BIN DAUD (NO. K/P: 910731-03-5649) … PERAYU-PERAYU DAN SHAHBADRUL AZMI BIN ZULKEFLI (NO. K/P: 010126-03-0117) … RESPONDEN

This appeal arises from a road traffic accident involving the Respondent’s motorcycle and the Appellants’ motor vehicle.

Following a full trial, the learned Sessions Court Judge found the Appellants liable for the accident with contributory negligence assessed at 30% against the Respondent and 70% against the Appellants. The learned Sessions Court Judge subsequently awarded general and special damages to the Respondent.

The present appeal before this Court concerns only the issue of quantum. The Appellants challenge several heads of damages awarded by the learned Sessions Court Judge, namely: - severe traumatic brain injury and skull fracture; - rib fractures; - clavicle fracture; - superficial laceration wounds and abrasions; - scars; - muscle wasting; - future pain and suffering for future surgery; - medication costs; - nursing care; - loss of earnings; and - loss of earning capacity.

The medical evidence establishes that immediately following the accident, the Respondent sustained severe traumatic brain injury with multiple intracranial haemorrhages and cerebral oedema. CT Brain findings revealed bifront parietal extradural haemorrhage and subdural haemorrhage, bilateral frontal lobe intraparenchymal haemorrhage, intraventricular haemorrhage, skull vault fracture and sagittal suture diastasis.

The Respondent’s condition deteriorated significantly whilst under treatment at HUSM, where his Glasgow Coma Scale reading was recorded at E1VtM1. The Respondent underwent bifrontal craniectomy and external ventricular drainage insertion for intracranial pressure monitoring, followed later by bifrontal autologous cranioplasty with titanium plates and screws.

The Respondent subsequently developed post-traumatic epilepsy, headaches, giddiness, memory impairment, behavioural changes and neurocognitive deficits.

The learned Sessions Court Judge awarded damages under the various heads of claim which are now challenged in this appeal.

It is well settled that an appellate court will not readily interfere with a trial court’s assessment of damages unless the award is shown to be based on a wrong principle of law, a misapprehension of the evidence, or is so wholly erroneous as to represent an unjust estimate of the loss suffered.

The Federal Court in Topaiwah v Salleh (1968) 1 LNS 161 articulated the governing test in clear terms: “In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that this court should be convinced either the Judge acted on some wrong principle of law or that the amount awarded was so extremely high or so very small as to it an entirely erroneous estimate of the damage to which the Plaintiff is entitled.”

This principle has been consistently reaffirmed in Malaysian jurisprudence. In Chin Hin Transport Sdn Bhd v Lim Chin Mee [1999] MLJU 388, Richard Malanjum J (as his lordship then was) reiterated that an appellate court may interfere only in limited circumstances: “An appellate court will normally review the assessment of damages by the court of first instance when it finds that the trial judge acted on wrong principles of law or that the amount awarded is an entirely erroneous estimate.”

The threshold for intervention is therefore a high one. An appellate court is not concerned with whether it would have awarded a different figure, but whether the award falls outside the permissible range of judicial discretion.

The issues for determination in this appeal are as follows:

Whether the learned Sessions Court Judge had erred in principle or fact in the assessment of damages under the various heads claimed by the Respondent/Plaintiff; and

Whether the awards granted were excessive or amounted to entirely erroneous estimates warranting appellate intervention; Findings Severe Traumatic Brain Injury and Skull Vault Fracture

The principal complaint of the Appellants concerns the award of RM300,000.00 for severe traumatic brain injury and skull vault fracture. Having considered the evidence in its entirety, I am unable to agree with the Appellants that the award is excessive.

The Respondent sustained extremely serious head injuries involving multiple intracranial haemorrhages and cerebral oedema. The extent of the injuries is severe and this has been proven with the medical evidence before the trial court.

The Respondent’s GCS was recorded at E1VtM1 whilst under treatment at HUSM, demonstrating the severity of the traumatic brain injury. The Respondent subsequently underwent major neurosurgical procedures including bifrontal craniectomy and external ventricular drainage insertion for intracranial pressure monitoring.

The medical evidence further establishes continuing permanent affect. The Respondent suffers recurrent seizures, headaches, giddiness, memory impairment, irritability, behavioural changes, neurocognitive dysfunction and post-traumatic epilepsy. Even the Appellants’ own expert acknowledged the presence of neurological and psychological deficits and recurrent seizures.

Importantly, the learned Sessions Court Judge had expressly considered the issue of overlapping injuries and awarded a global sum rather than separate awards for skull fracture and brain injury.

In the circumstances, I am unable to conclude that the award of RM300,000.00 is manifestly excessive or plainly unreasonable. I find that the award made by the Sessions Court Judge is reasonable and in line with the previously decided cases on similar injury and therefore I do not see any reason to interfere with the award. Rib Fractures, Clavicle Fracture, Laceration Wounds, Abrasions, Scars and Muscle Wasting

I also find no basis to interfere with the awards granted for the rib fractures, clavicle fracture, superficial laceration wounds, abrasions, scars and muscle wasting.

These injuries were medically established and documented in the medical reports. The learned Sessions Court Judge had considered the nature of the injuries, pain suffered, residual scarring and the relevant authorities before arriving at the awards.

The awards granted fall within the permissible range of judicial assessment and no error in principle has been demonstrated.

I now turn to the award for pain and suffering for future surgery. The award was made for pain and suffering arising from a future removal of the right clavicle plate. The learned Sessions Court Judge recorded that the Plaintiff’s orthopaedic expert had stated that: “The right clavicle plate can be removed with a cost of RM8,000.00 at private hospital.”

The learned Sessions Court Judge further noted that counsel for the Plaintiff had submitted for RM10,000.00 for pain and suffering for future surgery by reference to authorities. Having considered that the Plaintiff would undergo the future procedure and would naturally suffer pain and suffering, the learned Sessions Court Judge allowed RM8,000.00 without interest as a reasonable sum.

I agree with the finding of the learned Sessions Court Judge. The award was modest and anchored to the medical evidence that the right clavicle plate may be removed in future, and it was not an award for the cost of surgery itself but for the pain and suffering incidental to that future procedure.

In the circumstances, I am unable to conclude that the learned Sessions Court Judge had acted on a wrong principle, misapprehended the evidence, or awarded a sum that was plainly excessive. The award of RM8,000.00 under this head is therefore affirmed.

I also find no basis to disturb the award for medication and medical expenses. The learned Sessions Court Judge had correctly observed that the Respondent continues to require anti-epileptic medication due to the continuing effects of the traumatic brain injury and post-traumatic seizures.

The medical evidence clearly establishes that the Respondent continues to experience recurrent seizures following the accident.

The Respondent’s neurosurgical expert further confirmed that the Respondent continues to suffer post-traumatic epilepsy and persistent neurological symptoms. The medication expenses claimed were supported by documentary evidence. The Appellants did not meaningfully challenge the documents nor produce any alternative computation.

I agree with the learned Sessions Court Judge that the expenses were reasonably incurred and directly attributable to the injuries sustained in the accident. In the absence of any material error or wrong application principle, there is no basis for appellate interference. The award under this head is therefore affirmed.

Whilst there can be no dispute that the Respondent suffered severe traumatic brain injury with significant neurological complications, the critical question is whether the evidence establishes the necessity for permanent nursing care for the remainder of the Respondent’s life.

Upon perusing the evidence adduced at the trial, I find that the evidence falls short of establishing such necessity. The Respondent’s own expert categorised him under Glasgow Outcome Score (GOS) IV as follows: “Moderate disability: Independent and can resume almost all activities of daily living but disabled and cannot participate in variety of social and work activities.” (emphasis added)

This finding is significant. It demonstrates that notwithstanding the serious injuries suffered, the Respondent remains substantially independent in his daily living activities.

The Appellants’ expert categorised the Respondent under GOS 5 or low disability as follows: “His current condition can be categorized using the Glasgow Outcome Score where he can be categorized as a GOS 5 or low disability, light damage with minor neurological and psychological deficits.”

The medical evidence does not establish that the Respondent is bedridden, incapable of self-care, requires assistance for feeding, bathing or toileting, incapable of independent ambulation, or requires professional nursing supervision on a permanent basis.

At best, the Respondent’s complaints primarily concern episodic headaches and giddiness, seizures, memory impairment, irritability, behavioural symptoms and reduced social interaction. Whilst those symptoms are genuine and compensable, they do not automatically justify a substantial lifelong nursing care award.

At its highest, the evidence only establishes the possibility of occasional domestic assistance or family support. That is materially different from actual nursing care.

In this regard, I find that the learned Sessions Court Judge had erred in principle in allowing a substantial lifelong nursing care award without satisfactory medical evidence establishing the necessity for such care throughout the Respondent’s lifetime. The award therefore became speculative and unsupported by the evidence before the trial Court.

Accordingly, the award of RM136,800.00 for nursing care ought to be set aside.

The learned Sessions Court Judge awarded RM42,000.00 for actual loss of earnings during the period the Respondent was unable to work following the accident. I find no reason to interfere with this award.

The evidence establishes that the Respondent had suffered severe traumatic brain injury requiring prolonged hospitalization, neurosurgical intervention and rehabilitation. The Respondent’s condition immediately after the accident was serious.

The Respondent underwent multiple neurosurgical procedures and continued rehabilitation thereafter. In such circumstances, it was entirely reasonable for the learned Sessions Court Judge to conclude that the Respondent would be unable to work for a substantial period following the accident.

The Respondent had also adduced evidence through witnesses regarding his pre-accident earnings and inability to work during the recovery period. The learned Sessions Court Judge was entitled to accept that evidence.

Importantly, this head concerns actual loss suffered during the recovery period and not future speculative losses. The award was supported by evidence and represented a reasonable estimate by the learned Sessions Court Judge. I therefore affirm the award under this head.

The law draws a clear distinction between loss of future earnings and loss of earning capacity. In Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324, the Federal Court explained as follows: “(4) the general principle is that an injured plaintiff is entitled to damages for the loss of earnings and profits which he has suffered by reason of his injuries up to the date of the trial and for the loss of the prospective earnings and profits of which he is likely to be deprived in the future. There must be evidence on which the court can find that the plaintiff will suffer future loss of earnings, it cannot act on mere speculation. If there is no satisfactory evidence of future loss of earnings but the court is satisfied that the plaintiff has suffered a loss of earning capacity, it will award him damages for his loss of capacity as part of the general damages for disability and not as compensation for future loss of earnings... ……………… ……………... There is a difference between loss of future earnings and loss of earning capacity. The important difference between the two is that compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages...”

Loss of earning capacity therefore compensates not for actual loss of income at the time of trial, but for the diminution of the plaintiff’s ability to compete in the labour market in the future. The Court of Appeal in Sumarni v Yow Bing Kwong & Anor [2008] 1 MLJ 608 emphasised that such an award requires proof of a real or substantial risk affecting future earning ability: “it is explicit that before an award of this nature can be entertained, there must be evidence to show that the plaintiff will face a real or substantial risk in her earning capacity being affected in the future due to the disability she sustained from the motor accident. The medical report did say that the plaintiff will suffer a permanent limp of her left leg which may prevent her from standing and walking for long periods. This would certainly be a handicap but is not a complete impairment to prevent her from performing other tasks. But since her starting job level was only that of a domestic help, the prospect of her getting another job that would pay her the same as what she was earning before the motor accident is low. In my view, her physical shortcoming will expose her to receiving less in the future than what she obtained before the accident…”

Similarly, in Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] 2 MLJ 201, the Federal Court explained the test for an award of loss of earning capacity as follows: “The proper test to be applied (for loss of earning capacity) is whether some time in the future, due to the effect of the injuries sustained by him, the plaintiff will face a substantial risk of either losing his job or getting a less paid employment. It does not matter whether the plaintiff was in employment or not at the time of the trial so long as the Court is satisfied from evidence that there is a real or substantial risk that his earning capacity will be affected in the future.”

Applying the above principles to the present case, there is no doubt that the Respondent sustained serious and permanent neurological injuries arising from the accident. The medical evidence establishes recurrent seizures, post-traumatic epilepsy, memory impairment, cognitive dysfunction, headaches, behavioural symptoms and irritability.

The residual disabilities suffered by the Respondent would undoubtedly affect the Respondent’s future employability and competitiveness in the labour market. However, notwithstanding the above residual symptoms, the evidence falls short of establishing total incapacity from gainful employment.

The Respondent’s own expert categorised him under GOS 4 with “moderate disability: Independent and can resume almost all activities of daily living but disabled and cannot participate in variety of social and work activities.”

The Appellants’ expert further categorised him under GOS 5 with “low disability, light damage with minor neurological and psychological deficits.”

The evidence above establishes reduced earning capacity, but not total unemployability.

With respect, the learned Sessions Court Judge appears to have assessed the claim as though it is a claim for total future loss of earnings by applying the Respondent’s full income through a multiplicand and multiplier approach.

Considering that the Respondent is not totally incapacitated and unable to perform any work, I am of the view that approach was erroneous in principle.

The Respondent cannot simply retreat permanently from the workforce and expect damages to be assessed as though he had entirely lost all his ability to work. The Respondent remains under a continuing duty to mitigate his losses. The Respondent cannot hide behind the accident forever and choose not to be gainfully employed.

The law of damages in personal injury claims is compensatory in nature. Damages awarded must reasonably compensate the innocent party for the injuries, pain, suffering and disadvantages suffered, but cannot be excessive to the extent of unjustly enriching the Respondent.

In the circumstances, whilst an award for loss of earning capacity remains justified due to the Respondent’s permanent neurological deficits, post-traumatic epilepsy and reduced labour market competitiveness, the award of RM200,000.00 was excessive and amounted to an erroneous estimate.

Upon taking into account the Respondent’s continuing residual neurological symptoms and future employment vulnerability whilst recognising that he nevertheless retains residual functional and working capacity, I find that a reasonable award under this head should be reduced from RM200,000.00 to RM80,000.00.

Accordingly, the appeal is allowed in part only upon the following terms:

The award for nursing care of RM136,800.00 is set aside;

The award for loss of earning capacity is reduced from RM200,000.00 to RM80,000.00;

All remaining awards made by the learned Sessions Court Judge are affirmed;

In view of the partial success of the appeal, I make no order as to costs for this appeal. This Grounds of Judgment is dated 20.5.2026 SHAMSUL BAHRIN BIN ABDUL MANAF Pesuruhjaya Kehakiman Mahkamah Tinggi (3) Kota Bharu Kelantan PIHAK-PIHAK: Peguam bagi pihak Perayu-Perayu: Tetuan Kenneth William & Associates Lot No. 5-P-8, 5th Floor, Kota Bharu City Point, 15050 Kota Bharu, Kelantan. Peguam bagi pihak Responden: Tetuan Azhar Fazuny Seksyen 14, Jalan Bayam, 15200 Kota Bharu, Kelantan.