Rosman Bin Abdul Hamid v Kirthigan A/L Sangar (DA-12B-64-12/2022)

RUSMINI BINTI IBRAHIM … APPELLANTS

MHD HAFIZ KARAMI BIN MHD ZAIN … RESPONDENTS (In the Sessions Court at Kota Bharu In the State of Kelantan Darul Naim, Malaysia

Rosman bin Abdul Hamid

Rusmini binti Ibrahim … Plaintiffs

Kirthigan A/L Sangar

Mhd Hafiz Karami bin Mhd Zain … Defendants JUDGMENT Introduction [1] For ease of reference the parties will be referred to as they were at the Sessions Court hearing. [2] At the Sessions Court, the decision delivered by the learned Sessions Court Judge (SCJ) was as below: Liability: 50:50 between the parties Quantum on 100% liability: General damages for 1st plaintiff (RM 366,000) a) Spinal Cord Injury - RM 350,000 b) Laceration wound - RM 3,000 c) Abrasion wound - RM 2,000 d) Cerebral concussion - RM 6,000. e) Scarring - RM 5,000 Special damages for the 1st plaintiff a) Medical and specialist reports - RM 7,166.50 b) Family visits - RM 300 c) Physiotherapy - RM 11,560 d) Occupational therapy – RM 11,560 e) Erectile Dysfunction – 107,184 f) Domestic helper – RM 321,600 g) Actual loss of income – RM 99,255 h) Future loss of income – RM 213,780 i) Wheelchair – RM 9,000 j) Shower bench – RM 2,250 k) Medical consultation – RM 3,122 l) Kidney ultrasound, ureter bladder – RM 1,860.80 m) Urodynamic examination – RM 1,000 n) Nutritious food – RM 450 o) Clothes – RM 100 Cost and interest [3] The plaintiff lodged an appeal No: DA-64-12/2022 to the High Court on the issue of liability as well as quantum. Based on the Memorandum of Appeal dated 10.1.2023, the appeal on quantum is on these items: a) The failure to grant any awards for these items: i) Tetraplegic C5 Asia D; ii) Neurogenic Bowel; iii) Neurogenic Bladder; iv) Erectile Dysfunction b) Inordinately low award for mild head injury and scarring; c) disallowing any award for pain and suffering for open reduction and posterior instrumentation from C3 to C5 at neck spine and the difficulty in the continuous need to attend hospital appointments; d) not granting any award for costs of IVF treatment and medicine; e) the inadequate award for the cost of physiotherapy, occupational therapy, erectile dysfunction and medical consultation; f) not allowing the full sum for the cost of a full-time domestic helper and support facilities; g) not granting the full award for pre-trial and post-trial loss of earnings; This Court allowed the appeal only on quantum with an award for the injury in item (c) as regards the plaintiff’s appeal. [4] The defendants also lodged an appeal on liability and quantum in appeal No. DA-12B-63-12/2022. Upon a perusal of the Memorandum of appeal, the items on quantum being appealed against are: a) the excessive award of RM 350,000 for spinal cord injury; b) the manifestly high award of RM 107,184, 000 for treatment of erectile dysfunction; c) the inordinately high award of RM 321,600 for the cost of a domestic helper; d) the failure to consider the issue of life expectancy in granting the awards; e) the inordinately high awards for actual loss and future loss of earnings to the sum of RM 99,255 and RM 213,780. The defendants failed in all aspects of their appeal. [5] The plaintiffs being dissatisfied with the findings of this Court on liability and quantum have filed an appeal to the Court of Appeal. The defendants’ however, have not pursued a further appeal. [6] This court shall now address the decisions made on the issues appealed against by the plaintiffs. Brief facts of the case [7] The accident occurred at about 12.05 am on 15.12.2018 involving 2 motorcars driven by the 1st plaintiff and the 1st defendant. The plaintiff was driving motor vehicle No. WSQ 8523 whilst the 1st defendant was driving motor vehicle No. JFL 4336. [8] In the police report No. 000253/19, the 1st plaintiff narrated that whilst driving his Proton Saga bearing plat no: WSQ 8523 from a futsal arena on his way to Gunung, suddenly the motorcar No: JFL 4336 coming from the front suddenly encroached into his path. Though an attempt to evade was made, the oncoming motorcar crashed into the front right side of his motorcar causing him to lose control and he rammed into a lamp post situated on the left side of his road path. [9] The 1st defendant lodged a report no: 0013118/18, and gave the version that he was driving a Proton Kembara with the plat No: JFL 4336, on his way from Kuala Krai to Bachok with his 4 friends. He was travelling on a straight path when suddenly a Proton Saga using the plat no: WSQ 8523 coming from the opposite direction crashed into the right side of his car causing him to spin to the right and crashed into a ravine with resulting injuries to the 1st defendant and his friends. Governing principles [10] This court would like to revisit the principles of appeals before delving further into the main issues of this appeal. The case of Rasidin bin Partorjo v Frederick Kiai [1976] 2 MLJ 214 has the Federal Court observing that: “A court of appeal always starts with the working presumption that any decision appealed against is right in every aspect. So, to succeed in an appeal the appellant must convince us that the decision appealed from is wrong. If we are not so convinced, the appeal fails.” [11] The Federal Court in the precedent of Mat Shah bin Mohamed & Anor v Foo Say Meng & Ors [1984] 1 MLJ 237 has stated: “The learned Judge in this case had the advantage of seeing and hearing the witnesses which opportunity the appellate court did not enjoy and there was no reason in this case for the appellate court to interfere in the case.” [12] The Court of Appeal case of Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 has enunciated that: “It is trite law that an appellate court will not readily interfere with the findings of fact arrived by the trial court to which the law entrusts the primary task of evaluation of the evidence.” [13] It is apparent from these cases that the court in exercising its appellate jurisdiction should exercise restraint from interfering with the decisions of the court of first instance as the trial judges would have the benefit of seeing the conduct and demeanor of witnesses whilst giving evidence and especially when faced with being interrogated by counsels during cross examination. There must be very substantive misdirection of facts and law before it would merit any such interference from the court sitting on appeal. Deliberations on liability [14] The learned SCJ observes that there are 2 conflicting versions as to how the accident occurred with either party stating that the opposite vehicle having encroached into their path of way. The Investigating officer (I.O) did not give evidence as on the day fixed for the plaintiff to close his case, the I.O wasn’t present with the learned SCJ not accepting the reason for the failure to call the I.O as a witness. [15] Due to the I.O not being present, the sketch plan was not marked as an exhibit. It was found as a fact that a collision did occur between the 2 motorcars and the learned SCJ rejected the defendants’ argument that the plaintiff failed to prove their case by the failure to call the I.O as a witness. The non-calling of his friends as witnesses has also not jeopardised the plaintiff’s case. The fact of whether the 1st plaintiff braked or slowed down his vehicle did not impair the evidence of the plaintiff. [16] However, the learned SCJ found that it was difficult to determine which vehicle was doing the encroaching with no independent witness being available and both versions being probable. Hence, the finding of liability being borne equally by the parties. [17] This Court on appeal observes that the plaintiff’s appeal on liability is centered upon the issue that when faced with 2 conflicting versions, the duty of the trial court would be to decide which version to be inherently probable. Whilst the defendant’s argument is of the onus to prove the claim rests on the plaintiff in presenting the case and in this instance the plaintiff has failed to discharge this burden of proof given the facts and circumstances of the case. [18] At the hearing before the learned SCJ the I.O did not give evidence hence the sketch plan produced by the defendant remained as an ID document. However, it is the observation of this Court that the sketch plan is very much neutral, failing to indicate how the accident occurred. No photographs were shown in court and the 4 friends of the 1st plaintiff did not give evidence. [19] Given such a situation the learned SCJ was left very much with the evidence of the 1st plaintiff and the 1st defendant in determining the liability in this case. The law is trite that an appeal court should defer to the views gathered by the trial judge who has the audio-visual experience of hearing the witnesses giving evidence who have been the subject of being cross examined by the opposing counsels. [20] This Court thus finds that the Court is left very much in doubt as to how the collision occurred with 2 very contrasting versions forwarded to the Court with neither version having any corroboration. The evidence is sketchy on what actually transpired on the day of the accident. No photographs are tendered which could have given a clue as to how the accident occurred and the 4 friends of the plaintiff did not give evidence. [21] In this case what is before the Court is a situation whereby both vehicles are alleging encroachment by the opposing vehicle. This Court finds no reason to disturb the finding made by the learned SCJ during trial with the law being clear that an interference is only made when the trial judge is plainly wrong in arriving at his decision which this Court is satisfied that it is not such a case herein. [22] The authority of Peraganathan a/l Karpaya v Choong Yuk Sang & Anor (1996) 1 CLJ 622 states: “In the instant case, the court is left in doubt as to how or where the accident occurred on the road. Accordingly, the principle in Baker v Harborough Industrial Co-operative Society (1953 1 WLR 1472) applies to this case and parties are equally to be blamed.” [23] Based on those deliberations, this Court decides to maintain the finding of equal apportionment of liability between the parties since it is found that there is no reason to disturb the decision by the learned SCJ given the circumstances of the case. Deliberations on Quantum [24] The principles for overturning awards on quantum are numerous. In the case of Rasidin bin Partorjo v Frederick Kiai (1976) 2 MLJ 214, the Federal Court has observed that: “On an appeal against the damages awarded, the appellant had to convince the appellate court that the learned trial judge had acted on a wrong principle of law or had misapprehended the facts or had for other reasons made a wholly erroneous estimate of the damage suffered.” [25] The Court of Appeal in Hang Jong Juan v Tan Yeo Soon (1986) 2 MLJ 5 held: “In an appeal against the quantum of damages, it is settled law that the onus on the appellant is a heavy one and it must be established plainly that the trial judge’s award was a wholly erroneous estimate.” [26] In Pang Ah Chee v Chong Kwee Sang (1985) 1 MLJ 153, the Federal Court held that: “The finding that a trial judge has erred in the discretion of being too generous would not be itself constitute a matter to be appealed from and the appellate court is always slow to reverse the trial judge’s decision on assessment of damages unless there are strong grounds for interference.” [27] From these precedents, it can be observed that awards on quantum should not be easily interfered with and the Court sitting in an appellate capacity should refrain from being too insistent in deciding to reverse the awards made but the court hearing an appeal has the liberty to vary an award made, if there are clear errors in the decision making arrived at by the trial Judge. [28] This Court shall now examine the headings of injuries as reflected in the Memorandum of Appeal filed by the plaintiffs: Spinal cord Injury [29] The learned SCJ awarded a global sum of RM 350,000 in consideration of the plaintiff having sustained unilateral right facet cervical 4 and cervical 5 (C45) fracture dislocation with incomplete quadriplegia (ASIA C)/Traumatic Spinal Cord Injury – Central Cord Syndrome with disabilities, incomplete tetraplegia – weakness of all 4 limbs, neurogenic bowel and bladder (improved bowel function and was able to control), spasm pain, requiring wheelchair/assistance to walk and for activities of daily living (ADL) and moderate depression/post-traumatic stress disorder as well as erectile dysfunction. [30] The plaintiffs argue that the learned SCJ has erred in the failure to grant any awards for these items: i) Tetraplegic C5 Asia D; ii) Neurogenic Bowel; iii) Neurogenic Bladder; iv) Erectile Dysfunction [31] In order to decide on the extent of these injuries, particular reference is made to the HUSM report of Dr Muhammad Hafiz bin Hanafi. It is pertinent to refer to these observations by the good doctor. At page 11 of his report it is stated: “Thus, it is not surprising to see this patient has improved neurologically from C5 AIS C to C6 AIS D during his visit this time, about 18 months post-accident. This also indicate he is a good candidate to improve further with proper rehabilitation inputs. Based on review article Scivoletto, almost 71-91% of patients with AIS C and less than 50 years old will achieve walking ability after 1 year follow up. As my patient, Mr. Rosman’s injury is initially C5 AIS C and he is only 33 years old at accident, it is expected that he will be able to walk again with proper rehabilitation.” [32] At page 13 of the said report it is observed as below: In summary, functionally, American Board review in Rehabilitation Medicine predicts that for a C6 spinal cord injured patient like Mr. Rosman, if his injury level is not improved, most likely he will be independent for feeding, grooming, bathing, bed mobility, weight shifts, transfer wheelchair propulsion with equipment, independent upper extremities dressing but need assistance on lower extremities dressing, and he will likely be able to drive again with special adapted van. [33] Whilst at page 17 of the same report it is stated: Mr. Rosman is currently able to have sustain erection for proper penetration although he claimed not as strong as before the accident. If he still wants to have children, invitro fertilization with early sperm collection will be needed to increase the chance of successful pregnancy. [34] Based on those observations, this Court views that the learned SCJ has not erred in awarding a global sum of RM 350,000 which is the appropriate award given the injuries sustained. Mild head injury and scarring [35] The learned SCJ granted an award of RM 6,000 for cerebral concussion after taking into consideration the opinions of the plaintiff’s neurorehabilitation specialist (SP5) and SD3 being the defendant’s specialist. [36] This Court is particularly attracted to the observation of Dato Dr Kantha Rasalingam at page 9 of the report under the title of “Opinion” which states: En. Rosman bin Abdul Hamid was allegedly involved in a motor vehicle accident on the 14th of December 2018 at approximately 11 pm. He sustained loss of consciousness however the exact duration is unknown. CT Scan of the brain done did not reveal any intracranial bleed. With the admitting GCS of 15/15 and loss of consciousness, a diagnosis of mild head injury can be made. [37] Based upon that particular paragraph this Court is satisfied that the award of RM 6,000 is the appropriate award under this heading as the head injury can be termed as mild. [38] For the scarring being “midline surgical scar located at the posterior neck measuring 11 cm” which is permanent, this Court is of the considered opinion that the award of RM 5,000 is not inordinately low to warrant appellate intervention. Pain and suffering [39] The plaintiff is appealing against the decision in not granting an award for pain and suffering arising from the procedure of open reduction and posterior instrumentation from C3 to C5 at neck spine. [40] At page 15 of the report by Dr Muhammad Hafiz bin Hanafi it is stated that “chronic pain is one of the most common secondary complications of SCI with most reports estimating that more than 60% of individuals with SCI have chronic pain. [41] This Court is thus satisfied that the learned SCJ has erred in not granting an award for this predicament faced by the 1st plaintiff hence awards the sum of RM 50,000 for this claim. IVF treatment and costs of medicine [42] The learned SCJ did not grant any award under this heading of special damages based upon the reasoning that sperm collection was not pleaded. Furthermore, the plaintiff could ejaculate and have sex with the complaint being on the hardness of his penis. The learned SCJ also observed that no potency/lack of fertility test was conducted on the plaintiff. [43] This Court concurs with the learned SCJ in not making an award under this category of claim. SD3 being the urologist specialist observed that: Mr Rosman is able to ejaculate from his history. There has been no seminal analysis done to indicate he has infertility. Furthermore, spine injuries have no co-relation to cause infertility. [44] It is pertinent to observe that the plaintiff continues to have sexual relations with his wife and there is no conclusive proof that the quantity of his sperm has dissipated after the accident. Hence, the claim is pre-mature and should not be granted. Awards for costs of physiotherapy, occupational therapy, treatment of erectile dysfunction and medical consultation [45] The learned SCJ had made these awards which the plaintiff argues to be inordinately low: i) Physiotherapy - RM 11,560 ii) Occupational therapy – RM 11,560 iii) Erectile Dysfunction – RM 107,184 iv) Medical consultation – RM 3,122 [46] For cost of physiotherapy the learned SCJ observed that it was done at home with the services of a private physio at the rate of RM 120 per session. The learned SCJ views that the treatment could be done at a government hospital at a lower cost. The learned SCJ based his award on 1/3 of the same rate and awards RM 960 for 3 months and RM 10,600 for 265 months totaling RM 11,560. The period of 268 months being based on the life expectancy of 22.33 years which is 1/3 of the life expectancy of 33.5 years. (1/3 being the deduction for contingency). [47] As regards occupational therapy, a rate of 1/3 was used and allows RM 960 per month for 3 months and RM 10,600 for 265 months totaling RM 11,560. [48] For erectile dysfunction treatment, the cost of medication of RM 50 per tablet was used and using the life expectancy of 1/3 of 33.5 years (22.33 years), this formulation was made by the learned SCJ [RM 50 x twice per week x 4 x12 months x 22.33 months] totaling RM 107,184.00. [49] Pertaining to medical consultation, the rate of 1/3 of RM 105 was used given the consideration that it could be obtained for free at a government hospital. This formulation was used by the learned SCJ, RM 1,561 for each specialist (2 specialists required) hence RM 35 per sessions for 2 sessions per year x 2 x 22.3) totaling RM 3,122.00. [50] This Court on appeal has considered whether there should be a deduction for contingency. The life expectancy of the plaintiff is stated as 38.5 years in the report of Dr Muhammad Hafiz bin Hanafi whilst in the report dated 28.4.2021 from Dato Dr Kantha Rasalingam, it is stated as 33.5 years. [51] This Court is of the opinion firstly that an award made should not border on being excessive as the end result of a Court’s award is to compensate rather than to enrich the victim in a particular case. [52] In Muhammad Hanif Ishak v Mohammad Syazwan Mohamad Fuad [2017] MLJU 336 it was observed on a claim for special damages: [20] This court is of the view that claims such as this should require strict proof. The courts especially at the Magistrate and Sessions court level where most of the accident matters are litigated should warn itself from being too lenient in dictating that claims involving earnings would require adequate documentary proof and should not shy away from demanding as such. The production of minimal evidence and purely oral evidence without any form of corroboration should not be easily entertained. It is the responsibility of the courts to ask parties to adhere closely to the strict proof rule and the courts should not be too readily persuaded especially by the element of sympathy to give unsubstantiated awards for earnings loss. [53] In Leng Yang Sua & Anor v Ng Yen Kee & Anor [1986] CLJ 448 it was held that a claim for special damages must be strictly proved and the court should not be left to speculate what would be an appropriate award. [54] The Federal Court decided 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: “It is trite that damages serve as compensation, not reward, less still a punishment (see Ong Ah Long v Dr. S Underwood

2 CLJ 198). In assessing damages, the court should not be motivated by sympathy and award fair compensation based on cogent evidence.” [55] The report of Dato Dr Kantha states that life expectancy of patients enduring the same fate as the plaintiff are actually increasing. Though the 2 doctors differ in their prognosis of life expectancy, no real explanation can be gathered from the 2 reports as to the difference. Hence, this Court maintains life expectancy as 33.5 as decided by the learned SCJ. [56] The law is settled that an appellate court should only interfere with a decision of a trial judge only in the instance of the court of 1st instance being plainly wrong and the appeal court should refrain from granting a different award simply because the appeal court has a different figure in mind to the original award. [57] The 1/3 deduction for contingency has been used by the Court of Appeal in Sulaiman bin Ngarif & 3 Ors v Ahmed Ikhwan bin Ahmed Fauzi [2022] AMEJ 507 in paragraph 91 and also in Hasniyati binti Hassan & Anor v Kerajaan Malaysia [2022] AMEJ 228, by the Penang High Court at paragraphs 38 to 42 of the said case. [58] Bearing in mind these considerations, the decisions of the learned SCJ are maintained as they are not inordinately low or manifestly inadequate. Cost for full time domestic helper [59] The learned SCJ observes that both rehabilitation specialists are in concurrence that the plaintiff requires a domestic helper. The defendant’s specialist had observed that the 1st plaintiff could perform his daily activities of eating, grooming himself, putting on clothes, performing his toilet activities and moving with the aid of a domestic helper. Based on this consideration the sum of RM 321,600 is awarded (RM 1,200 x 268 months). [60] The 1st plaintiff appeals against this decision. However, paragraph 11 of the Memorandum of Appeal is misconceived as it is stated that the Sessions Court failed to grant an award under this heading, yet it most apparent that the learned SCJ did indeed award RM 321,600 to the 1st plaintiff at the end of the trial. [61] Perusing the written submission of the plaintiff dated 5.10.2023 at page 77, it is argued that the award should be RM 693,000.00 on the basis of RM 1,500 per month yet in the plaintiff’s further submission which bears the same date at page 33, it is argued that the award of RM 321,600 is appropriate and should be maintained. There is a clear conflicting stand taken by the 1st plaintiff on this issue. [62] This Court shall revisit this award though the 1st plaintiff has erred in the Memorandum of Appeal and written submissions pertaining to this issue. This Court from a personal knowledge on this issue is aware that a domestic helper can be employed at the rate of RM 800 per month working on a 30 days daily basis. Thus, this Court is satisfied that the rate of RM 1,200 per month as awarded by the learned SCJ is not in error. [63] The multiplier of 22.33 years (33.5 years with the contingency deduction of 1/3) as decided in the above paragraph is maintained and the resulting total of RM 321,600 is also maintained. Pre-trial and post-trial loss [64] For pre-trial loss the learned SCJ based his award on the fact that the plaintiff was earning RM 3,000 per month before the accident and cannot be gainfully employed after the accident. Petrol allowance was deducted reducing the sum to RM 2,545 per month. It is also taken into consideration that the plaintiff received full pay for the first 6 months after the accident then further on half of his pay for the next 6 months. [65] Thus, the calculation used was RM 1,272.50 (half pay) for 6 months, until December 2019 totaling RM 7,635 and RM 2,545 x 12 x 3 years (January 2020 until December 2022) totaling RM 91,620. The combined sum is RM 99,255.00. [66] As regards post-trial loss, with the plaintiff being 33 years old at the time of the accident, the multiplier used is 11 years (55 minus 33 and divide by 2 = 11 years). Hence the post-trial loss is 7 years after taking into consideration the 4 years of pre-trial loss. The award is thus RM 2,545 x 7 x 12 totaling RM 213,780.00. [67] The plaintiff appeals by stating that the full award as entitled to by the 1st plaintiff has not been awarded. [68] It is observed that the accident occurred on 15.12.2018 with the 1st plaintiff obtaining his full pay for the first 6 months after the accident (January 2019 to June 2019). He was then on half pay basis for the next 6 months (July 2019 to December 2019). The 1st plaintiff then no longer have a gainful employment from January 2020 until the decision of the case in the Sessions Court in December 2022. [69] This Court is satisfied that the learned SCJ has grasped the correct issues in arriving at his decision and the decision on pre-trial and post-trial loss to be appropriate and shall not be disturbed. The correct multiplier and multiplicand have been utilised in granting the awards. [70] The plaintiff submits the sum of RM 141,000 for pre-trial loss and RM 369,000 for post-trial loss hence the figures submitted are not so substantially different from the decision of the learned SCJ. Furthermore, the plaintiff is misconceived in their use of 11 years as the multiplier for the post-trial loss as this would be ignoring the multiplier of 4 years used for the pre-trial loss in view of the 1st plaintiff’s age. Thus, the awards granted are not manifestly low in the circumstances herein. Conclusion [71] This court after revisiting the evidence adduced in the case before the learned SCJ decides that liability is maintained as being apportioned equally between the parties. [72] For quantum, only the appeal on the issue of pain and suffering is allowed with the rest of the awards which are the subject of the plaintiff’s appeal are maintained. Dated: 16th December 2024. AZMI BIN ABDULLAH High Court Judge High Court of Malaya, Kota Bharu COUNSELS Counsel for the Plaintiffs: Nur Amalin Aishah binti Arifin @ Mukhtar M/s Zufaidi & Associates Advocates & Solicitors Lot 8015 & 8016, Aras 2, Bandar Satelit Islam, Pasir Tumbuh, 16150 Kota Bharu, Kelantan. Counsel for the Defendants: Suresh Andrew M/s Shan & Su Advocates & Solicitors No. 29-3, Block F, Petaling Jaya Commercial City (PJCC), Jalan PJS 5/30, 46150 Petaling Jaya, Selangor Darul Ehsan.