Roey Vibishanan a/l Nagalingam v Ooi Kwan Yih (BA-12B-39-04/2024)

ROEY VIBISHANAN A/L NAGALINGAM (NO. K/P: 930923-08-5315) …PERAYU PERTAMA

GRAND MILLENIUM MANAGEMENT (NO. PERNIAGAAN: SA0182204-A) …PERAYU KEDUA DAN OOI KWAN YIH (NO. K/P: 940620-10-5015) …RESPONDEN [Dalam Mahkamah Sesyen Di Petaling Jaya Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman Sivil No: BB-B53KJ-14-05/2022 Antara Ooi Kwan Yih (No. K/P: 940620-10-5015) …Plaintif

Roey Vibishanan a/l Nagalingam (No. K/P: 930923-08-5315) …Defendan Pertama

Grand Millenium Management (No. Perniagaan: SA0182204-A) …Defendan Kedua] S/N 7duy9wzbnEGf6Ip21lH5Tg JUDGMENT Introduction [1] This appeal arises from a running down action that has left both parties dissatisfied with the outcome at the Sessions Court. The Appellants/Defendants challenge the decision of the learned Sessions Court Judge, who found the First Appellant/Defendant 100% liable and awarded RM507,984.00 to the Respondent/Plaintiff for loss of future earnings. Meanwhile, the Respondent/Plaintiff has filed a cross-appeal, disputing the award of RM40,000.00 in general damages for severe traumatic brain injury, arguing that it fails to reflect the gravity of the injury sustained. This appeal, therefore, revolves around contested findings of liability and the adequacy of damages awarded. The Overarching Issues [2] The first issue for this Court’s consideration is whether the learned Sessions Court Judge erred in law or fact in finding the First Appellant 100% liable for the accident. [3] The second issue is whether the Sessions Court correctly awarded RM507,984.00 to the Respondent/Plaintiff for loss of future earnings. [4] The third and final issue concerns the quantum of damages awarded for the injury suffered by the Respondent/Plaintiff. S/N 7duy9wzbnEGf6Ip21lH5Tg The Parties’ Respective Contentions on the Issue of Liability [5] According to the Respondent/Plaintiff, on 22 May, 2017 at approximately 11.30pm, he was was driving a motorcar with registration number WPD 8908 on his way from Damansara to his home in Subang via the NKVE Highway. The Respondent/Plaintiff went on to assert that upon reaching the turnoff (at Exit 104) to the Subang Toll Plaza, he continued to travel in the left lane of the road and but due to the negligence and/or breach of duty on the part of the First Appellant/Defendant who was driving a lorry with registration number BPA 5113, which was travelling in the same direction as the Respondent/Plaintiff but was at the right lane, suddenly changed course and entered into the path of the Respondent/Plaintiff's motorcar thereby causing the accident. [6] In their Defence, the Appellants/Defendants denied that an accident had happened between the lorry BPA 5113 driven by the First Appellant/Defendant and the motorcar WPD 8908 driven by the Respondent/Plaintiff. The Appellants/Defendants claimed that the Plaintiff’s motorcar had collided into the “back left” of the First Appellant/Defendant’s lorry. In the alternative, the Appellants/Defendants’ case was that in the event that an accident had occurred, the accident was due to the sole negligence of the Respondent/Plaintiff and/or there was substantial contributory negligence on the part of the Respondent/Plaintiff. The Findings of the Sessions Court on the Issue of Liability [7] As noted, the learned Sessions Court Judge attributed 100% liability to the First Appellant/Defendant. S/N 7duy9wzbnEGf6Ip21lH5Tg [8] The learned Sessions Court Judge based her findings primarily on the testimony and evidence presented by SP1, the Investigating Officer. The investigations by SP1 revealed that the accident was between the motorcar driven by the Respondent/Plaintiff and the lorry driven by the First Appellant/Defendant. Photos of the damage to the vehicles were also tendered and the Sessions Court took cognizance of the fact that a summons was issued to the First Appellant/Defendant. [9] Based on the investigations by the Investigating Officer and the evidence before the court, the Sessions Court accepted the Respondent/Plaintiff's version that the First Appellant/Defendant had changed lane in a sudden manner and caused the accident. The Parties’ Respective Arguments on Quantum for Loss of Future Earnings [10] It was the Appellants/Defendants’ submission that the Sessions Court had erred in awarding RM507,984.00 to the Respondent/Plaintiff for loss of future earnings. [11] The Appellants/Defendants’ case on this issue is premised on the ground that the Respondent/Plaintiff was a student at the time of the accident. [12] The Respondent/Plaintiff argued that as the sole proprietor of a restaurant – Michu Restaurant – his annual salary for 2017 was RM31,749.00, as evidenced from the Income Tax Returns for Year of Assessment 2017. Hence, it was contended by the Respondent/Plaintiff S/N 7duy9wzbnEGf6Ip21lH5Tg that the Sessions Court did not make any appealable error in making the said award for loss of future earnings. The Decision of the Sessions Court on Loss of Future Earnings [13] The learned Sessions Court Judge’s reasons for making the award for loss of future earnings are outlined in paragraphs [39] – [53] of her Grounds of Judgment. [14] Based on the findings that the Respondent/Plaintiff will no longer be able to work and an annual income of RM31,749.00 at the time of the accident, the learned Judge used a multiplier of 16 and awarded the Respondent/Plaintiff RM507,984.00 for loss of future earnings. The Parties’ Respective Submissions on Quantum for Severe Traumatic Brain Injury [15] The Respondent/Plaintiff argued that the quantum of RM40,000.00 awarded by the Sessions Court for the severe traumatic brain injury is insufficient and in his cross-appeal the Respondent/Plaintiff is seeking for an increased amount of compensation for this injury. [16] The Respondent/Plaintiff referred to the case of Erma Rahayu bt Abd Razak (seorang kurang upaya dan membawa tindakan ini melalui suami yang sah serta sahabat wakilnya iaitu plaintif ketiga) dan lain-lain lwn Muhamad Danish Hariri bin Azuan (seorang di bawah umur dan disaman melalui ibu yang sah iaitu defendan kedua) dan satu lagi [2021] MLJU 1552 (“Erma Rahayu”), where the plaintiff was awarded a sum of RM400,000.00 for severe traumatic brain injury. S/N 7duy9wzbnEGf6Ip21lH5Tg [17] The Respondent/Plaintiff further highlighted the fact that he has suffered “Permanent Memory Impairment, Permanent Impaired Concentration, Permanent Personality Changes and Permanent Impaired Social Interaction”. [18] In response, the Appellants/Defendants cited the case of Mohamad Amyrul Aiman Abd Ghani v Muhamad Zulkhairi Che Mat Zain [2023] AMEJ 2565; [2023] CLJU 2525; [2023] MLJU 2794; [2023] MLRHU 2051 (“Mohamad Amyrul Aiman”) where the High Court had made an award of RM40,000.00 for severe traumatic brain injury with left frontal contusion left temporal extradural haemorrhage and left frontoparietal subdural. Based on this case, the Appellants/Defendants averred that the award of RM40,000.00 in the present case was “cukup munasabah”. The Findings of the Sessions Court on Quantum for Severe Traumatic Brain Injury [19] The Sessions Court awarded the Respondent/Plaintiff RM40,000.00 for the severe traumatic brain injury. [20] The learned Judge made reference to the expert reports submitted by the opposing parties and the case of Mohamad Amyrul Aiman in reaching her decision on RM40,000 as the award for severe traumatic brain injury. The Decision of this Court [21] The principles governing appellate intervention—whether on issues of liability or quantum—are well-established and require no further restatement. S/N 7duy9wzbnEGf6Ip21lH5Tg [22] Having considered the evidence before the Sessions Court and the submissions of the parties, the decision of this Court in this appeal are as follows. On the Issue of Liability [23] This Court is of the considered view that the learned Sessions Court Judge had not erred in law and/or in fact in finding the First Appellant/Defendant 100% liable for the accident. The conclusion reached by the learned Sessions Court Judge is supported by the investigations and testimony of the Investigating Officer and consistent with the photos showing the damage to the vehicles and the sketch plan. [24] Where there are two versions of event leading to an accident, as is always the case in an accident claim, this Court agrees with the Sessions Court on the need to take into account the neutral evidence, which in this case include the sketch plan, photographs and the actual damage to the vehicles to decide which version is more probable. (See Hua Marketing Sdn Bhd and Anor v Jelias Anak Nyotet [2007] CLJU 423; [2007] MLJU 501; [2007] 5 MLRH 452) [25] The decision of the Sessions Court in finding the First Appellant/Defendant to be wholly liable is affirmed. On the Quantum for Loss of Future Earnings [26] The law and principles governing the award for loss of future earnings are uncontroversial. S/N 7duy9wzbnEGf6Ip21lH5Tg [27] Reference may be made to section 28A(2)(c) and section 28A(2)(d)(i) of the Civil Law Act 1956. [28] The former deals with aspects to be considered when awarding damages for loss of future earnings and the latter states the multiplier to be utilised and these provisions provide as follows: Damages in respect of personal injury 28A (2) In assessing damages under this section— …

in awarding damages for loss of future earnings the Court shall take into account —

that in the case of a plaintiff who has attained the age of sixty years or above at the time when he was injured, no damages for such loss shall be awarded; and in any other case, damages for such loss shall not be awarded unless it is proved or admitted that the plaintiff was receiving earnings by his own labour or other gainful activity before he was injured;

(ii) only the amount relating to his earnings as aforesaid at the time when he was injured and the Court shall not take into account any S/N 7duy9wzbnEGf6Ip21lH5Tg prospect of the earnings as aforesaid being increased at some time in the future;

(iii) any diminution of any such amount as aforesaid by such sum as is proved or admitted to be the living expenses of the plaintiff at the time when he was injured;

in assessing damages for loss of future earnings the Court shall take into account that —

in the case of a person who was of the age of thirty years or below at the time when he was injured, the number of years’ purchase shall be 16; and … [29] The pertinent cases, as cited by the Sessions Court, include Lizawati bt Said & Anor v Abdul Halim bin Ishak [2020] MLJU 309 and Sumarni v Yow Bing Kwong & Anor [2008] 1 AMR 259; [2008] 3 CLJ 489; [2008] 1 MLJ 608; [2007] 3 MLRA 504. [30] The contentious point relates to the requirement that it must “be proved or admitted that the plaintiff was receiving earnings by his own labour or other gainful activity before he was injured”. [31] It was the Appellants/Defendants’ contention that the earnings from the restaurant could not be attributed to the Respondent/Plaintiff’s as he S/N 7duy9wzbnEGf6Ip21lH5Tg was a student at the time of the accident. The Appellants/Defendants also averred that it was the Respondent/Plaintiff’s father who was running the restaurant. [32] In response to the above assertions, the Respondent/Plaintiff argued that the evidence — specifically the income tax returns and the fact that he was the sole proprietor of the business — substantiated the Sessions Court’s award for loss of future earnings. [33] Herein lies the question of burden and onus of proof. The observations by the Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan & Anor v Secure Plantation Sdn Bhd [2017] 3 AMR 625; [2017] 5 CLJ 418; [2017] 4 MLJ 697; [2017] 3 MLRA 501 is instructive. The Federal Court explained as follows: [51] ‘There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts’ (Addagada Raghavamma And Anr v Addagada Chenchamma And Anr 1964 SCR (2) 933). [52] The ‘burden of proof’ in s 101 is the burden to establish a case which rests throughout on the party who asserts the affirmative of the issue. The ‘burden of proof’ in s 102 is the burden to adduce evidence, to make out or rebut the claim. The ‘burden of proof’ in s 102 shifts from one side to the other according to the weight of the evidence. To differentiate the sense used, the ‘burden of proof’ in s 101 is ‘burden of proof’, while the ‘burden of proof’ in ss 102 and 103 is dubbed ‘onus of proof’. In some jurisdictions, the s 101 ‘burden of proof’ is labelled ‘legal burden’ while the s 102 burden of proof’ is referred to as ‘evidential burden’. S/N 7duy9wzbnEGf6Ip21lH5Tg … [54] Section 101(1) provides that ‘Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist’. ‘Section 101 states that the initial burden of proving a prima facie case in his favour is cast on the plaintiff …’ (Woodroffe and Amir Ali, Law of Evidence (19th Ed Vol 3) at p 3194). Illustration (b) to s 101 puts it beyond doubt that the ‘burden of proof’ rests throughout on the plaintiff. Section 102 provides that ‘The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side’. ‘The initial onus of proving the case is always on the plaintiff’ (Sarkar Law of Evidence 16th Ed at p 1593). Illustration (a) to s 102 puts it beyond doubt that a plaintiff has the initial onus of proof. [55] But ‘when (the plaintiff) gives such evidence as will support a prima facie case, the onus shifts on to the defendant, to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage, in the course of the evidence, the onus shifts from one side to the other. When after the entire evidence has been adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden, but if it has, on the evidence, no difficulty arriving at a definite conclusion, then the burden of proof on the pleading recedes into the background’ (Woodroffe and Amir Ali, at p 3194; see also Abrath v The North Eastern Railway Company at p 452). ‘… the onus of proof may shift … but the question must ultimately arise whether the person who is bound to prove the affirmative of the issue … has discharged … that burden’ (Jane Wakelin v The London and South Western Railway Company (1886) 12 App Cas 41 per Lord Halsbury LC) S/N 7duy9wzbnEGf6Ip21lH5Tg or proved ‘his case sufficiently to justify a judgment in his favour’ (Stoney v Eastbourne Rural District Council [1927] 1 Ch 367 at p 397 per Lord Hanworth MR). [56] Thus, a plaintiff has both the burden of proof as well as the initial onus of proof. … [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190–3191). [58] ‘The party on whom the onus probandi lies … must begin’ (Woodroffe and Amir Ali, Vol 3 at p 3192). ‘The strict meaning of the term onus probandi is this: that if no evidence is given by the party on whom the burden is cast, the issue must be found against him’ (Woodroffe and Amir Ali, Vol 3 at p 3189). ‘The principle that the party who asserts the affirmative in any controversy ought to prove his assertion, and that he who only denies an allegation may rest on his denial, until, at least, the probable truth of the matter asserted has been established, is one which has received the widest recognition. The reason is obvious: to all propositions, which are neither the subject of intuitive or sensitive S/N 7duy9wzbnEGf6Ip21lH5Tg knowledge or probabilised by experience, the mind suspends its assent until proof of them is adduced or as it has been said: ‘Words are but the expression of fact; and therefore, when nothing can be said to be proved’; which is found is probably what is meant by the maxim per rerum naturam, factum negantis probatio nulla est’ (Woodroffe and Amir Ali, Vol 3 at pp 3190–3191). [34] Based on the evidence before the Sessions Court, this Court finds that the Sessions Court has not made any appealable error in making the award for loss of future earnings. On the Quantum for Severe Traumatic Brain Injury [35] In relation to quantum, this Court is heedful of the authorities such as Topaiwah v Salleh [1968] CLJU 161; [1968] 1 MLJ 284; [1968] 1 MLRA 580 (an appellate court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because it thinks that if it had tried the case in the first instance it would have given a lesser sum), United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] CLJU 164; [1970] 2 MLJ 237; [1970] 1 MLRA 57 (which propounded the “good gracious test”), Jamiah bt Holam v Koon Yin [1982] CLJU 89; [1983] 1 MLJ 103; [1982] 1 MLRH 775 (in an appeal on quantum, unless it can be shown to the satisfaction of the appellate court that the award is extremely inconsistent with the discernible trend or that the award was made on some misapprehension of facts or some erroneous assumption of law or fact, the appellate court should not interfere) and Meccilect Sdn Bhd v Petrosab Petroleum Engineering Sdn Bhd & Anor [2022] AMEJ 1890; [20223] 2 CLJ 255; [2023] 2 MLJ 208; [2023] 3 MLRA 111 (which states the qualification to the principle of non-intervention). S/N 7duy9wzbnEGf6Ip21lH5Tg [36] With the principles as enunciated by the above authorities in mind, this Court has considered the submissions by the parties and the authorities cited. [37] This Court acknowledges counsel for the Respondent/Plaintiff for highlighting that, although the Respondent/Plaintiff relied on the case of Erma Rahayu, the facts of that case are distinguishable, and the circumstances of the present appeal do not justify an award of RM400,000.00 as granted in Erma Rahayu. Nonetheless, counsel contended that an award in the range of RM200,000.00 to RM250,000.00 would be reasonable and fair. [38] Having considered the experts reports, the authorities and the submissions by the parties, this Court finds that the award of RM40,000.00 is unreasonably inadequate and awards the Respondent/Plaintiff RM80,000 for severe traumatic brain injury. Costs [39] The Respondent/Plaintiff is entitled to costs of RM5,000.00. Dated: 12 February, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam S/N 7duy9wzbnEGf6Ip21lH5Tg Counsel: Navaseelan a/l Suppiah for the Appellants (Messrs. Athi & Seelan) Ravinder Singh Sodhi a/l Manmohan Singh Sodhi for the Respondent (Messrs. Gurmit Chambers) S/N 7duy9wzbnEGf6Ip21lH5Tg