1. Omar Bin Rasol v Rajendran A/L Ponnusamy (12B-254-06/2013)

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OMAR BIN RASOL SRI PAGOH TRADING & TRANSPORT SDN BHD … PERAYU-PERAYU/ DEFENDAN-DEFENDAN DAN RAJENDRAN A/L PONNUSAMY … RESPONDEN / PLAINTIF (Dalam Mahkamah Sesyen Di Sepang Dalam Negeri Selangor Darul Ehsan, Malaysia Saman No: 53-529-11/2011 (Dahulunya Mahkamah Sesyen Klang Saman No: 4-53-1298-2008) Antara Rajendran A/L Ponnusamy … Plaintif

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Omar Bin Rasol Sri Pagoh Trading & Transport Sdn Bhd … Defendan-Defendan) 2 GROUND OF JUDGMENT Introduction [1] The Appellants who are the 1st and 2nd Defendants, appealed on the Session Judge’s decision on quantum which allowed the Respondent’s (Plaintiff) claims in a road accident case. [2] In this judgment, the parties will be known as they were in the Sessions Court. The 1st and 2nd Defendants will be referred to as ‘the Defendants’. Brief Facts [3] The accident involves two lorries, one driven by the Plaintiff bearing registration number BEA 7003 and the 1st Defendant was driving the lorry owned by the 2nd Defendant, bearing registration number NAT 1817 on 9.6.2008. The collision occurred at the traffic lights junction Kuala Selangor at KM 32 Jalan Kuala Selangor – Kuala Lumpur where the 1st Defendant failed to stop it’s lorry at the red traffic lights and hit the Plaintiff. [4] The Plaintiff was 47 years old at the time of the accident. The Session Judge found that the Defendants are liable at 85% and the Plaintiff was negligent at 15%. 3 [5] The Defendants appealed on the award granted by the Session Judge (written judgment of the Session Judge is at pages 3-7 of the Supplementary Appeal Record (2)) as follows: “(i) Awad RM50,000.00 untuk “Fracture of femur 3cm shortening”; (Bukan femur yang shortened);

(ii) Awad RM30,000.00 untuk “Fracture of the right tibia and fibula”;

(iii) Awad RM28,000.00 untuk “Fracture right tibia plateau and neck fibula”;

(iv) Awad RM 28,000.00 untuk “Fracture of the left tibia and fibula”:

Awad RM35,000.00 untuk “Fracture of knee” (Patella);

(vi) Awad RM30,000.00 untuk “Fracture of trimalleolar ankle”;

(vii) Awad RM15,000.00 untuk “Scars”;

(viii) Isu Penindihan;

(ix) RM30,000.00 untuk “Kos pembedahan”;

Awad RM367,200.00 sebagai kehilangan keupayaan pendapatan.

(xi) Awad RM29,600.00 untuk membeli kasut khas tanpa mengeluarkan 1/3 langsung.” Defendants’ case [6] The learned counsel for the Defendants submitted that the award RM50,000.00 for right limb by the Session Judge was wrong and excessive as the shortening was 3cm of left tibia (Defendants’ specialist report dated 16.8.2011 at pages 469 - 471 of Appeal Record (Jilid II) and 4 page 192 of Appeal Record (Jilid II)). Based on the reports, the counsel for the Defendants submitted RM18,000.00 as the appropriate award. [7] On the award for right leg of fracture of right tibia and fracture right tibia plateau and neck fibula, the award were RM30,000.00 and RM28,000.00 respectively. The Defendants’ counsel submitted that it is of the same part of the leg (page 463 of Appeal Record (Jilid II)) and pointed to this Court that the Session Judge failed to provide an explanation as to the double award. The counsel submitted RM30,000.00 as a global award. [8] In relation to the fracture of left tibia and fibula, the Session Judge awarded RM28,000.00 to which the Defendants counsel averred that the sum is reasonable as there was only a 3cm shortening of the tibia. For the injury fracture of patella, the counsel for the Defendants asserted that the award should be based on the Compendium which is at the range of RM12,000 – RM15,000 and relying the case of Mohd Faizal B Abdul Rahman v Abdul Rahman B Ibrahim [2011] 1 PIR 335. [9] The Defendants’ counsel raised the issue of overlapping as a point of law where a deduction must be made and submitted that in this case if should be of 20% deduction. In relation to future cost of surgery where the Session Judge awarded RM30,000.00, it is submitted that future cost is special damages category and must be strictly proven. The counsel averred that the surgery may be needed in the future and could be carried out in a Government hospital, taking into account the 1/3 deduction. 5 [10] The Defendants’ counsel submitted that on bone grafting, the Session Judge failed to consider the medical report (page 465 of Appeal Record (Jilid II)) which stated, “He does not require ilizarov external fixation of his right and left tibia as the fracture have united. Bone grafting is also not necessary”. It was submitted that the medical report was accepted by both parties and after deducting 1/3, the amount should be RM8,300.00. Loss of Earnings [11] The Defendants’ counsel objected to the rate of RM5,000.00 per month and 108 months as submitted by the Plaintiff’s counsel. The Defendants’ counsel asserted that the Plaintiff’s employer was never called to testify and the Plaintiff only called the Manager, SP2 who is Plaintiff’s relative. It was testified that the payment vouchers (pages 42- 64 of Appeal Record (Jilid 1) are kept by the Plaintiff but were not produced at the Sessions Court. The Defendants’ counsel submitted that upon checking the amount of the salary, it was found that only 1-2 months reached RM5,000.00 and therefore the salary cannot be at the rate of RM5,000.00 per month. The Defendants’ counsel submitted that the medical leave is actually for 17 months and not 24 months although the Plaintiff did not come to work for 2 years. The Manager SP2 testified that the Plaintiff did not come back to work and no EPF slip was given, nor any documents as proof. The Defendants counsel submitted that the average rate is RM3,400.00 and must be divided by two (2). [12] The Defendants’ counsel averred that there was no evidence adduced that the Plaintiff is unable to work and yet the Session Judge had given the full amount for loss of earnings. In relation to the special 6 shoes, the amount RM29,000.00 is without deduction and therefore there should be a deduction of one third (1/3). Plaintiff’s case [13] The learned counsel for the Plaintiff submitted several arguments. It was submitted that the Plaintiff’s current life expectancy as a Malaysian Indian man is 75 years and will live for an average period of 27 years with all the inconveniences including the pain and suffering and loss of amenities. The Plaintiff’s counsel conceded that RM50,000.00 is on the right side but the 3cm shortening is on the left, based on the specialist report dated 20.4.2010 (pages 460-464 of Appeal Record (Jilid 2) and the Plaintiff’s counsel proposed for RM35,000.00. [14] The Plaintiff’s counsel submitted that its specialist report (page 187-200 at Appeal Record (Jilid II)) dated 12.6.2011 reported the x-ray conducted on the malunited fracture of right tibia and fibula (page 196 Appeal Record (Jilid II) where there is fracture of the middle bone which are two different fractures. It is submitted that based on the Compendium which provides the range between RM33,000 – RM55,000, for tibia and fibula, the award should be RM30,000.00. [15] The Plaintiff’s counsel agreed that for closed fracture be maintained at RM28,000. In relation to the fracture of patella, the Plaintiff’s counsel referred to page 463 of Appeal Record (Jilid II) that there is malunited. For fracture of Trimalleolar (right) ankle, there was no diagnosis in Plaintiff’s medical report but in the Defendants’ latest medical report confirmed the fracture and deformed. It was submitted 7 that as the Session Judge awarded RM30,000.00, requested for this Court to have it retained. [16] The counsel for the Plaintiff submitted that for the scars, there are 22 scars in total, especially on Plaintiff’s lower limb and that award of RM15,000 by Session Judge should be maintained (the list of scars at page 470 Appeal Record (Jilid II) of Defendant’s medical report). On overlapping, the counsel submitted that the 10% deduction for overlapping be retained (page 903 of Appeal Report (Jilid I)). For cost of surgery, the counsel submitted at the Sessions Court for RM55,000.00 but Session Judge gave RM30,000.00 without any 1/3 deduction. Loss of Earnings [17] The Plaintiff’s counsel averred that the Session Judge fell into error, on the calculation of multiplier where the multiplicand should be RM5,000.00 based on Plaintiff’s three witnesses where 2 managers and the brother-in law (SP3) testified that the Plaintiff also does freelance other than being a lorry driver which makes up the RM5,000.00. [18] On the special shoes, it was submitted that there ought to be no deduction of 1/3 for the special shoes and relied on the Court of Appeal case of Seeni Ibrahim Naina Mohamed & Usman bin N M Sickander v Mohd Fazli bin Sulaiman [2016] 1 LNS which affirmed the decision of no 1/3 deduction. 8 Defendants In Reply [19] The Defendants’ counsel in reply, submitted additional arguments and facts finding to the injuries. For fracture of femur 3cm shortening, there was no evidence to state that there is disability. It was further averred that the counsel for Plaintiff did not submit cases to prove that it should be at the amount of RM35,000.00 and there is no cross-appeal from the Plaintiff. [20] In relation to the fracture of right tibia and fibula, counsel for the Defendants pointed out at page 196 of Appeal Record (Jilid II) that there is only fracture of the same bone and there is no shortening and invited this Court to refer the range of RM16,000 – RM22,000 and counsel submitted that RM30,000.00 is appropriate in comparison to RM58,000.00. [21] For the fracture of patella, the counsel for the Defendants submitted that this Court should refer the Compendium which provides the range between RM12,000.00 – RM15,000.00. In relation to the fracture of Trimalleolar (right) ankle, it was not reflected on Plaintiff’s medical report and therefore it should not be RM30,000.00, to which Defendants’ counsel submitted that it should be RM20,000.00. [22] In relation to the scars, it was submitted by Defendants’ counsel that the Plaintiff himself had said that the first 4 scars are surgical (page 461 of Appeal Record (Jilid 2)). The counsel reiterate that for overlapping, the it should be at least 20% and not 10% deduction and for future surgery, 1/3 deduction can be allowed and RM8,300.00 is a fair amount. 9 [23] In relation to loss of earnings, the Defendants’ counsel submitted that the suggestion by the Plaintiff that the rate of RM3,400 be increased to RM5,000.00 cannot be allowed as there is no cross-appeal by the Plaintiff. APPEAL [24] The heart of the matter involves damages and before this Court can interfere with an award of damages, this Court must be satisfied, based on the principle in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 as referred by the Court of Appeal in Lay Hong Food Corporation Sdn Bhd v Tiong Nam Logistics Solutions Sdn Bhd [2017] 1 LNS 708, that the trial Judge had acted on the wrong principle of law or has misapprehended the facts or made wholly erroneous estimate of the damage suffered. [25] This is as decided by the Federal Court in the case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 1 PIR [16]; [2016] 2 CLJ 885 where YA Abdull Hamid Embong FCJ (as he then was), had occasion to say, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of 10 any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future.” [26] The burden to proof damages lies with the Plaintiff. This suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. [27] Upon careful perusal of the medical report of 12.6.2011 (page 192 of Appeal Record (Jilid II)) and the latest dated 16.8.2011 (pages 469 – 473 of Appeal Record (Jilid II), it is this Court’s finding that there is 3cm shortening of the lower limb. This Court finds that the award was wrongly placed by the Session Judge (page 3 of Supplementary Appeal Record

(2)) and based on the evidence, the sum of RM50,000.00 for the 3cm shortening of the lower limb is excessive. I must disregard the Plaintiff’s counsel’s proposal of RM35,000.00 as there was no cross-appeal by the Plaintiff. Based on the case laws submitted by the Defendants’ counsel which provides the range between RM15, 000.00 in year 2011 and the sum at RM20,000.00 in year 2012, I am of the view that the sum of RM18,000.00 is reasonable. [28] For the injury fracture of right tibia and fibula and right tibia plateau and neck fibula, this Court viewed that the courts have taken judicial notice that the injury in the same part of the body should be based on a 11 global award. In this case, this Court considered that for the fracture of right tibula and fibula and right tibia plateau and neck fibula, the global sum of RM30,000.00 is most appropriate. [29] This Court finds that the award for fracture of left tibia at RM28,000.00 by the Session Judge is not wholly erroneous and this Court agree that such award be retained at RM28,000.00. [30] For the injury fracture of knee patella, this Court agree with the proposed range of sum submitted by the Defendants which is in reference to the Compendium, the range between RM12,000.00 – RM15,000.00. This Court sought clarification on Plaintiff’s specialist report as to whether Plaintiff still suffers from the injury and Plaintiff’s counsel prompted at page 194 Appeal Record (Jilid 2) that the Plaintiff still have a malunited fracture. This Court is of the view that based on the case of Mohd Faizal B Abdul Rahman v Abdul Rahman B Ibrahim [2011] 1 PIR 335, the award given was for ‘closed fracture of the left patella with disabilities’ whereas in this case it is reported without disabilities. This Court viewed that the award of RM15,000.00 is reasonable. [31] For the injury of fracture of Trimalleolar (r) ankle, this Court viewed that the award RM30,000.00 is excessive as the fracture is without residual and therefore this Court viewed that the sum of RM10,000.00 is reasonable. [32] There are decided cases on the reasonable sum for scars ranging between RM 8,000.00 to RM5,000.00 particularly taking into account factors for instance the victim’s gender, age, whether it is multiple scars 12 and whether it is permanent scars: Teo Peik Ngee v Saidi B. Muda [2010] 1 PIR (10); Teoh Kin Theong v Abdul Razab Bin Yahaya [2013] 2 PIR 290. For permanent scars, in the case of Ong Chun Long v Gunasegaran a/l Govinda & Anor [2013] PIR 30 awarded RM10,000.00. Unlike in this instant case where they are not all permanent scars, mostly are in the body and legs area except for three on the right eye brow, chin and right side neck (pages 470-471 of Appeal Record (Jilid II)), this Court holds the view that RM8,000.00 is a reasonable figure. [33] As decided in the case of Mohamad Khirul Mizan Bin Shafie & Anor v Yue Ah Kai [2002] 6 MLJ 471 attributed by the Defendants’ counsel, taking the injuries as a whole, the 10% deduction for overlapping is retained. This Court viewed that an element of overlapping is invariably persist when two of more injuries are suffered simultaneously: Ng Aik Kian & Anor v Sia Loh Sia [1997] 2 CLJ Supp 218. [34] For the cost of surgery, this Court viewed that it must be with one third (1/3) deduction taking into consideration that this will be an accelerated payment and that the surgery could be carried out in Government hospitals. Upon careful perusal of the medical reports by Defendants’ specialist (pages 465 - 466, 472 of Appeal Record (Jilid II) where only the removal of nail requires surgery whereas for knee replacement and for fusion for right ankle, both are not confirmed, and bone grafting is not required. This Court finds that the amount of RM8,300.00 after deduction 1/3 is reasonable. 13 Loss of Earnings [35] It was brought to this Court’s attention that the Plaintiff submitted 24 months of medical leave and submitted another 24 months for future loss of earnings based on the calculation of employment age minus age at the time of accident, totalling 48 months. This Court holds the view that there are a number of cases which explained the accurate calculation for loss of earnings. Based on the case of Kanan Subramaniam & Satu Lagi v Aman Syah Abadzyuid [2002] 6 CLJ 34 the calculation is based on the employment age of 55 years minus the age of the Plaintiff at the time of accident in accordance with section 28A(2)(c)(ii) of the Civil Law Act 1956. [36] Claims for loss of earnings and loss of future earnings had been extensively discussed in many great decisions and I rely on the case decided by the Federal Court in Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ 294 which was referred by the Court of Appeal in its extensive deliberation in the case of Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489. Loss of earning is normally considered as a pre-trial loss, it is an actual amount of earnings lost by a plaintiff as a result of an accident caused by the defendant. [37] Based on the case of Ngooi Ku Siong (supra), Sumarni (supra) and in the Supreme Court case of Yang Yap Foong v Leong Pek Hoon [1987] 2 MLJ 201, there are elements to be proven if the claimant cannot go back to work completely or that there is a risk of getting less paid job. The Plaintiff is 47 years old and for him to decide that he will not work in the future is a speculation. The medical report of 16.8.2011 reported that the Plaintiff cannot drive a lorry and “is suitable for 14 sedentary jobs” (page 473 of Appeal Record (Jilid II)), nowhere in the medical reports stated that the Plaintiff is unable to work and no evidence was adduced by Plaintiff that he looked for employment. I must disregard Plaintiff’s counsel’s averment that the burden shifted to the Defendants to demonstrate the ‘different forms of alternative employment that are available which is suitable to the Plaintiff…’ (paragraph 41 of Plaintiff’s counsel’s written submission, page 11). [38] Based on the calculation as in section 28A(2)(c)(ii) of the Civil Law Act 1956 and the case law of Ngooi Ku Siong (supra), this Court viewed that the Session Judge’s award of RM367,200.00 for loss of earning capacity is wholly erroneous and should be set aside: Wong Khang Jong v Ali [1970] 1 MLJ 56; Kanan Subramaniam (supra) case. [39] In view of the salary received minus the living expenses which is the rate of RM3,400 is reasonable, therefore the rate RM3,400 x 48 months divide by two, amounts to RM81,600.00. I disallow for loss of future earnings as there is no evidence adduced by the Plaintiff to prove that he was employed, that is back at work after the accident and no proof that he is unable to work in the future. Special shoes [40] This Court allowed for the deduction be imposed for the special shoes. It is trite law that for shoes or prosthesis, there must be deduction of one third (1/3). This Court is guided by the Court of Appeal case which referred to the Supreme Court decision of Chan Chin Min & Anor v Lim Yok Eng [1994] 1 MLRA 305 in the case of Court of Appeal in 15 Cheng Bee Teik & Ors v Peter Selvaraj & Anor [2005] 1 MLRA 350 where at pages 353-354, it was held that the Court has the right to make deductions for contingencies and other vicissitudes of life and also taking into account the accelerated payment. This Court is also of the view that it is reasonable to allow for discount for contingencies at 1/3 as to ensure that the Plaintiff is neither over-compensation nor under compensation as this is the recognized approach originating from common law as decided in authorities based on the case of Wong Kuan Kay & Anor v Rohaizad Othman & Anor, Majlis Perbandaran Johor Bahru Tengah (Third Party) [2014] MLRA 483 and in reference to the authority by S. Santhana, ‘Ultimate Guide for Quantum Evaluation – An Insurance Perspective’, April 2015, Palace of Justice, Putrajaya. [41] There must be a deduction of one third (1/3) which means at the rate of RM29,600.00 with the one third (1/3) deduction amounts to RM19,800.00. No interest shall accrue on the items of loss of earnings, cost of future surgery and the special shoes. In light of the above reasons, the appeal is allowed with substitution as above, with cost. Dated: 21 December 2017 (ZALITA BINTI DATO’ ZAIDAN ) Judicial Commissioner Shah Alam High Court 16 COUNSEL FOR THE APPELLANTS/DEFENDANTS

GIRI RAJ Tetuan Kalai & Partners Peguambela & Peguamcara No. 14A – 3, 2nd Floor Jalan 14/20 46100 Petaling Jaya Selangor Darul Ehsan [Ref: K/P&O/4180/08] Tel: 03-7955 2335 Fax:03-7957 6917 COUNSEL FOR THE RESPONDENT/PLAINTIFF KHAIRUL AIMAN BIN KAMAR ROZAMAN Tetuan G. Dorai & Associates Peguambela & Peguamcara 7, Jalan Mawar 1, Taman Mawar 48000 Rawang Selangor Darul Ehsan [Ref: PGD/RWG/2393/08/INS/Sh]