Seok Heng Yew v Jeya Ganesh A/L Mohan (JA-12B-64-10/2025)

SEOK HENG YEW [NRIC NO. : 800825-01-5203]

M/S KHAILEE ENGINEERING SDN BHD [COMPANY NO. : 254684-W] ...APPELLANTS AND JEYA GANESH A/L MOHAN [NRIC NO. : 780429-01-5839] ...RESPONDENT IN THE SESSIONS COURT AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM MALAYSIA CIVIL ACTION NO. : JA-B53KJ-129-09/2023 BETWEEN JEYA GANESH A/L MOHAN [NRIC NO. : 780429-01-5839] ...PLAINTIFF

SEOK HENG YEW [NRIC NO. : 800825-01-5203]

M/S KHAILEE ENGINEERING SDN BHD [COMPANY NO. : 254684-W] ...DEFENDANTS GROUNDS OF JUDGMENT

This is an appeal by the Appellants (“Defendants") against part of the decision of the learned Sessions Court Judge ("SCJ") on the issue of quantum only. The decision on liability, wherein the Defendants were found 100% negligent with no contributory negligence on the part of the Respondent ("Plaintiff"), is not challenged and stands.

For ease of reference parties in this appeal will be referred to as they were at the Sessions Court.

Parties filed in their written submissions and bundle of authorities and orally submitted before this Court. The Court now delivers its decision.

The underlying claim arises from a road traffic accident on 12 December 2019 at approximately 7.00 p.m. at Jalan Kempas Lama-Seelong, Johor, involving the Plaintiff's motorcycle (No. : JTP 6793) and a motor lorry (No. : JFL 8392) driven by the 1st Defendant and owned by the 2nd Defendant. 4 5. The Plaintiff sustained the following injuries –

(a) deep laceration wound on the left forearm with extensor muscle cut;

(b) closed fracture of the left 4th to 8th ribs;

(c) left frontal scalp hematoma with laceration wound; and

(d) multiple scars.

The learned SCJ made the following awards on quantum (on a 100% basis) – A. General Damages –

(i) Deep laceration wound left forearm with extensor muscle cut 10,000.00

(i) Medical bills (Columbia Asia Hospital) 30,577.87

RM40/day)

(v) Loss of earning capacity 50,000.00

The learned SCJ also rejected several claims, including minimal invasive spine treatment, scar revision, physiotherapy, future surgery pain and suffering, KWSP loss, caretaker costs and motorcycle repair costs.

In their Memorandum of Appeal, the Defendants challenge the quantum on the following grounds –

(a) The learned SCJ erred in taking into account a pre-existing scar when assessing the award for "Multiple Scars";

(b) The learned SCJ erred in awarding the full medical bills of RM30,577.87 from Columbia Asia Hospital when 1/3 should have been deducted;

(c) The learned SCJ erred in awarding RM15,055.22 as loss of actual earnings during medical leave; and

(d) The learned SCJ erred in awarding RM50,000.00 as loss of earning capacity. COURT’S ANALYSIS

It is trite law that an appellate court should be slow to interfere with the assessment of damages by a trial judge. In order to justify reversing a trial judge on quantum, the appellate court must be convinced either that the judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate of the damages. [See : Topaiwah v Salleh [1968] 1 MLJ 284; Soton bin Bili & Anor v Khajijah binti Led & Ors [2008] 8 MLJ 521; Fadzly bin Nor Rahim & Anor v Chang Foh Chin [2007] 6 MLJ 419].

The Federal Court in United Plywood and Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ 237 held that the general principle is that an appellate court can only interfere with an assessment if it is considered so inordinately low or inordinately high as to make the court exclaim that the sum awarded must be altered, or if it is so much out of line with the discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as a wholly erroneous estimate.

With these principles firmly in mind, I now proceed to consider each ground of appeal. Issue 1 : General Damages For Scars (RM7,000.00)

The Defendants contend that the award of RM7,000.00 for scars is excessive. They argue that the learned SCJ took into account a pre-existing scar, namely a 4cm hyperpigmented scar over the anterior aspect of the right knee which resulted from a burn injury when the Plaintiff was 5 years old.

I have carefully perused the Grounds of Judgment of the learned SCJ. At pages 16-17 of the Grounds, the learned SCJ specifically identified and listed all scars, including the pre-existing burn scar on the right knee. In fact, the learned SCJ expressly noted that this particular scar was "a 4cm hyperpigmented scar over the anterior aspect of the right knees - burnt injury when he was 5 years old". It is therefore clear from the Grounds that the learned SCJ was fully aware of and identified the pre-existing scar.

I also observed that the award of RM7,000.00 was made for the three accident-related scars only, namely –

(a) a 2cm hypertrophic scar over the forehead;

(b) a 1cm hypertrophic scar over the left cheek; and

(c) an 11cm hypertrophic scar over the dorsal aspect of the left forearm.

I also observed that two of these scars are on highly visible areas of the body (the forehead and left cheek) and the third is a substantial scar of 11cm on the forearm.

Based to the Revised Compendium of Personal Injury Awards 2018, the range for scarring (single to multiple lacerations) is between RM2,500.00 to RM9,500.00. Thus, the award of RM7,000.00 for three scars, including two on visible areas, falls well within this range and is consistent with the principle in Abdul Waffiy Wahubbi & Anor v. AK Nazaruddin Ahmad [2017] 1 LNS 2296 that awards must fall within the range stipulated in the Compendium.

Meanwhile, the Defendants have not demonstrated that the learned SCJ acted on any wrong principle of law. The bare assertion that the amount is "excessive" without more does not meet the threshold for appellate intervention.

I also find that the Defendants' reliance on Danaletchemy Munusamy v. Munish Pamakaliah [2025] MLRHU 3400 and H West & Son Ltd v Shepard [1963] 2 All ER 625 in their Reply Submission is misplaced. Those cases concerned the broader approach to damages for loss of amenity, not a proposition that scars are only compensable upon proof of consequential difficulties in daily life. Scars are compensable for disfigurement in themselves.

Accordingly, I find no basis to disturb the learned SCJ's award of RM7,000.00 for scars. This ground of appeal is dismissed. Issue 2 : Medical Bills - Columbia Asia Hospital (RM30,577.87)

The Defendants submit that the learned SCJ erred in awarding the full medical bills of RM30,577.87 from Columbia Asia Hospital. They contend that the Plaintiff discharged himself at own risk from Hospital Sultanah Aminah (a government hospital) and chose treatment at Columbia Asia, a private hospital. The Defendants argue that 1/3 of the bills should have been awarded, relying on the well-established principle in Chai Yee Chong v. Lew Thai [2004] 2 CLJ 321.

The Plaintiff counters by relying on the Court of Appeal decision in Soo Cheng Lin v. Dr Kok Choong Seng & Anor and Another Appeal [2016] 8 CLJ 368 to argue that the full medical bills should be awarded as the Plaintiff had paid insurance premiums. The Plaintiff invokes section 28(1)(a) of the Civil Law Act 1956 [Act 67] and the principle that insurance monies should not be deducted from damages, citing Parry v Cleaver [1969] 1 All ER 555.

I have considered the submissions of both parties carefully. In my view, there are two distinct legal issues at play which must not be conflated. The first is whether insurance payments received by the Plaintiff should be deducted from the damages awarded. The second is whether the quantum of medical bills claimed is reasonable, having regard to the Plaintiff's choice to seek treatment at a private hospital when government hospital treatment was available.

On the first issue, the Plaintiff's reliance on section 28A(1)(a) of Act 67 and Soo Cheng Lin is correct as a matter of principle. Insurance monies paid under a contract of insurance taken out by the plaintiff should not be deducted from damages.

However, the second issue is separate and distinct. It concerns the reasonableness of the Plaintiff's choice to seek treatment at a private hospital. On this point, the Court of Appeal in Chai Yee Chong v. Lew Thai [2004] 2 CLJ 321 established that if the court is not satisfied that a plaintiff is justified in seeking treatment at a private hospital, then depending on the facts and circumstances, the court should either dismiss the claim or award an amount not exceeding one-third of the expenses. This principle has been consistently applied and was recently affirmed by the Court of Appeal in Kuala Terengganu Specialist Hospital Sdn Bhd & Anor v Ahmad Thaqif Amzar bin Ahmad Huzairi (claiming through mother and her litigation representative, Majdah bt Mohd Yusof) and other appeals [2023] 1 MLJ 281, where the court stated that it is now settled law that in personal injury claims where treatment readily available at a public hospital is sought at a private facility, the court in normal cases would only grant 1/3 of the private hospital cost as appropriate compensation.

The test of reasonableness, as elucidated in Muhammad Yassein Zuliskandar (A Child Suing Through His Father And Next Friend; Zuliskandar Md Pechor) v. Kerajaan Malaysia & Ors [2019] 4 CLJ 11 289, applies in two ways: first, the plaintiff must justify why he chose treatment at a private hospital over a public hospital and second, the plaintiff must show that the cost of treatment was reasonable.

In the present case, the evidence shows that the Plaintiff was initially brought to Hospital Sultanah Aminah, a government hospital, after the accident. He thereafter discharged himself at his own risk and sought treatment at Columbia Asia Hospital. The injuries sustained are readily available at government hospitals. The Plaintiff has not adduced evidence to show that such treatment was unavailable at the government hospital or that there were special circumstances necessitating private hospital treatment.

I observed that the learned SCJ appears to have relied primarily on Soo Cheng Lin in awarding the full amount of the medical bills. However, Soo Cheng Lin dealt specifically with the non-deductibility of insurance payments. It is a different question from the reasonableness of choosing private over public hospital treatment. The Chai Yee Chong line of authorities on the 1/3 principle, which addresses the latter question, does not appear to have been considered. Therefore, in my respectful view, this amounts to an error of principle.

I also observed that the Defendants also raised the issue of adverse inference under section 114(g) of the Evidence Act 1950 [Act 56] for the Plaintiff's failure to produce the Hospital Sultanah Aminah medical report. While there may be some force in this argument, it is not necessary for me to decide this point given my finding on the 1/3 principle above.

Accordingly, I find that the learned SCJ erred in principle in awarding the full amount of the medical bills without applying the reasonableness test under the Chai Yee Chong line of authorities. The award for medical bills is hereby varied from RM30,577.87 to 1/3 thereof, being RM10,192.62. Issue 3 : Loss Of Actual Earnings (RM15,055.22)

The Defendants contend that the learned SCJ erred in awarding RM15,055.22 as loss of actual earnings during the Plaintiff's 5 months medical leave. The Defendants assert that the Plaintiff's own solicitors had indicated the loss was RM10,884.85 which the Plaintiff’s counsel denied.

The learned SCJ's computation, as set out in the Grounds of Judgment, is as follows – Monthly salary 5,452.74 Less 1/3 living expenses (-) 1,817.58 Net monthly loss 3,635.16 × 5 months medical leave 18,175.80 Less amount received during sick leave (-) 3,120.48 TOTAL 15,055.22

I note that the components of the learned SCJ's computation yield RM15,055.32, a difference of ten cents from the figure of RM15,055.22 stated and awarded. The discrepancy is de minimis and I do not disturb the sum awarded.

I have reviewed the following evidence –

(a) the Plaintiff was employed as a senior production supervisor at NSL Eastern Pretech, earning RM5,452.74 per month;

(b) he was on medical leave from 14 December 2019 until 16 May 2020; and

(c) during this period, his employer paid him RM19,446.15 but subsequently required the return of RM16,325.67. It means that the Plaintiff effectively retained only RM3,120.48 during the entire 5-month period.

I also consider that the evidence of the Plaintiff's employment and earnings was corroborated by the employer who testified in court. The Plaintiff's pay slips were exhibited as evidence. Therefore, I am satisfied that learned SCJ's computation is logical and supported by the evidence before her.

On the other hand, the Defendants' alternative computation of RM10,884.85 appears to apply the 1/3 deduction for living expenses differently.

However, the learned SCJ's approach is a recognised method of computation. The Defendants have not shown that the learned SCJ's computation is based on any wrong principle of law. If anything, the application of the 1/3 deduction for living expenses to actual loss of earnings during a defined medical leave period (as opposed to future loss of earnings) is arguably generous to the Defendants, as the conventional approach for actual loss of earnings is simply the difference between what the plaintiff would have earned and what he actually received, without any deduction for living expenses.

Accordingly, I find no basis to disturb the learned SCJ’s award of RM15,055.22 for loss of actual earnings. This ground of appeal is dismissed. Issue 4 : Loss of Earning Capacity (RM50,000.00)

The Defendants' primary argument on this head is twofold. First, they contend there is no real or substantial risk that the Plaintiff would lose his present employment. Second, they argue that the Plaintiff's current limitations are attributable to pre-existing spinal degeneration and not to the accident injuries. The Defendants rely on the evidence of their expert, Dr. Peraba, who testified that the Plaintiff's injuries have healed and that the spinal condition is anatomically separate from the rib fracture site.

The Plaintiff contends that the evidence establishes that the Plaintiff was fit, healthy and able to work overtime before the accident, but following the accident, he suffers from pain in his hand, ribs and back which makes it difficult for him to work long hours. The Plaintiff relies on the evidence of Dr. Jeyaratnam, who confirmed the Plaintiff can return to work but at a reduced level of activity and productivity and assessed the Plaintiff's Whole Person Impairment (WPI) at 4% according to the American Medical Association guidelines, which are also followed by SOCSO in Malaysia.

At the outset, I observe that the SCJ did not award loss of earning capacity on the basis of any spinal injury. She expressly found that the spinal condition was not caused by the accident and, on that footing, rejected the claims for minimal invasive spine treatment and physiotherapy. The Plaintiff neither pleaded nor claimed damages for any spinal injury. The award of RM50,000.00 was made on the injuries and disabilities the learned SCJ accepted as caused by the accident, the deep laceration and extensor muscle cut to the left forearm and the fracture of five ribs and their effect on the Plaintiff's capacity to perform his work. I approach this ground on that same basis.

The evidence before the SCJ also established that –

(a) the Plaintiff was placed on light duty from 17 May 2020 until 17 September 2020, during which his salary was reduced to RM4,000.00 per month;

(b) even after light duty ended, the Plaintiff was unable to work as effectively as before the accident;

(c) the Plaintiff could no longer work overtime due to pain; and

(d) the employer's evidence corroborated the Plaintiff's reduced capacity. These are objective indicators of a genuine reduction in earning capacity, not mere speculation.

To the extent the parties joined issue on the Plaintiff's back pain, I note Dr. Jeyaratnam's evidence that the blunt trauma to the rib cage, given its proximity to the spine, may have rendered a pre-existing and asymptomatic degenerative condition symptomatic, which would explain why pain emerged only after the accident and that Dr. Peraba maintained the degeneration was pre-existing and unrelated. It is unnecessary for me to resolve that controversy, or to disturb the learned SCJ's finding that the spinal condition itself was not caused by the accident, because the award for loss of earning capacity is sustainable on the accepted accident injuries and their established effect on the Plaintiff's working capacity, irrespective of the back pain.

Loss of earning capacity is distinct from loss of future earnings. It compensates for the disadvantage the plaintiff suffers in the labour market. The learned SCJ correctly identified that the Plaintiff can still work but not as effectively as before the accident. Given the Plaintiff's age (41 at the time of the accident), the physically demanding nature of his work as a senior production supervisor requiring standing and walking for up to 12 hours, climbing lorries, driving forklifts and doing manual casting of concrete, the 4% WPI and the demonstrable reduction in his working hours and overtime capacity, the award of RM50,000.00 is neither manifestly excessive nor based on any wrong principle of law.

The Defendants' submission that the Plaintiff has done some overtime after the accident (as shown in pay slips) does not negate the finding of reduced capacity. It merely shows the Plaintiff attempted to continue working despite his limitations, which is commendable rather than a basis for denying compensation.

I add that no award was made for any psychiatric condition and the award for loss of earning capacity does not rest on one. The Defendants' contention that the Plaintiff's psychiatric complaints were pre-existing and unrelated to the accident therefore does not assist them on this ground.

Accordingly, I find no basis to disturb the learned SCJ's award of RM50,000.00 for loss of earning capacity. This ground of appeal is dismissed. Submissions Beyond the Memorandum Of Appeal

I also observed that the Defendants' Written Submission raises additional issues beyond those pleaded in the Memorandum of Appeal, including submissions on physiotherapy, future surgery, scar revision, partial loss of earnings and overlapping of 10% on general damages. These items were in fact already rejected by the learned SCJ in favour of the Defendants. As there is no cross-appeal by the Plaintiff, these additional submissions are beyond the scope of the present appeal and I decline to consider them.

For the reasons stated above, the appeal is partially allowed. Specifically –

(a) The ground of appeal on the award for scars (RM7,000.00) is dismissed;

(b) The ground of appeal on medical bills is allowed. The award for medical bills from Columbia Asia Hospital is varied from RM30,577.87 to RM10,192.62 (being 1/3 thereof);

(c) The ground of appeal on the award for loss of actual earnings (RM15,055.22) is dismissed; and

(d) The ground of appeal on the award for loss of earning capacity (RM50,000.00) is dismissed.

All other orders of the learned SCJ, including the orders on interest and costs of the trial below, shall remain undisturbed.

Given the mixed outcome of this appeal, where the Defendants have succeeded on one ground but failed on the remaining grounds, I order that each party shall bear their own costs for this appeal. Dated : 26 February 2026 -signed-YA Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Appellants/Defendants : : Kala Lakshmi A/P Annamalai Messrs. Othman Hashim & Co. (Johor Bahru) Solicitor for the Respondent/Plaintiff : : Subashini Balaskanda Messrs. Zaman & Associates