1. Soo Hon Chiew v 1. Tan Chun Han (JA-12B-63-12/2019)

1.

LIM KOK YAH ...APPELLANTS

1.

ELITE AIRCONDITIONING & ENGINEERING PTE LTD (NO. SYARIKAT: 200813679H) …. RESPONDENTS [DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR, MALAYSIA GUAMAN NO.JA-A53KJ-375-06-TAHUN 2018 ANTARA 1) TAN CHUN HAN 2) ELITE AIRCONDITIONING & ENGINEERING PTE LTD (NO SYARIKAT: 200813679H) … PLAINTIFFS DAN 1) SOO HON CHIEW 2) LIM KOK YAH … DEFENDANTS] GROUNDS OF JUDGMENT 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 2 Introduction [1] This appeal and cross-appeal by the Appellants and Respondents respectively are against the decision of the learned Sessions Court Judge (“SCJ”) on 12 December 2019, on the issue of quantum only. For ease of reference, the Appellants and Respondents will be referred to respectively as the Defendants and Plaintiffs. [2] I dismissed the Defendants’ appeal but allowed the Plaintiffs’ cross-appeal on one item only. The following are my reasons. The background facts [3] The appeal and cross-appeal arose from proceedings in the Sessions Court pursuant to an accident that occurred on 19 June 2017, involving a motorcycle ridden by the First Plaintiff and a motorcar driven by the First Defendant. The learned SCJ apportioned liability at 10:90 to the Plaintiffs: Defendants. [4] To summarise the Defendants’ appeal and Plaintiffs’ cross-appeal, as well as the award granted by the learned SCJ, the following Table A is produced for ease of reference: 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 3 Table A No. Injuries Amount (MYR) awarded by SCJ Amount (MYR) claimed by Defendants in appeal Amount (MYR) claimed by Plaintiffs in cross-appeal 1 Subluxation of first to fourth metatarsal joints 36,000 13,000 - 2 Extensor tendon cut of second and fourth toes 18,000 9,000 45,000 3 NSAIDS 6,000 0 - 4 Osteoarthritis 0 0 20,000 5 Actual loss of earnings 7,344 0 - 6 Loss of earning capacity 248,400 0 937,917 [5] The Defendants’ appealed against items 1 to 6 above, whilst the Plaintiffs cross-appealed against items 2, 4, and 6. The applicable law [6] It is trite law that this Court should be slow and disinclined to interfere with the finding of the learned SCJ merely because this Court thinks that a different sum would have been awarded if the case had been 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 4 before it in the first instance: Topaiwah v. Salleh [1968] 1 LNS 161, FC; and Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22. In the latter case, it was stated by Abdul Hamid Omar CJ, in the following passage: Now, in an appeal on quantum of damages, it is essential in order to come to a conclusion, to bear in mind certain principles which are well established. The appeal court is slow, indeed, disinclined to interfere with the judge's finding merely because the appeal court thinks that if the case had been before it in the first instance a lesser sum would have been awarded. Azmi CJ (Malaya) (as he then was) giving the judgment of the Federal Court in Topaiwah v. Salleh [1968] 1 LNS 161; [1968] 1 MLJ 284 said that: 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 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 entirely an erroneous estimate of the damages to which the plaintiff is entitled (see Flint v. Lovell [1935] 1 KB 354). The principle that should guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that, either there was an omission on the part of the judge to consider some relevant materials, or he had admitted for purpose of assessment some irrelevant considerations. If the court is satisfied or convinced that the judge had acted upon wrong principle of law then it is justified in reversing; indeed, it is the duty to reverse the finding of the trial judge. [7] Guidance on the law governing appeals may also be extracted from the Federal Court case of Rasidin Binpartorjo v Frederick Kiai [1976] 2 MLJ 214, [1976] 1 LNS 123, where Wan Suleiman FCJ held that: The principle upon which an appellate court will interfere with an award of damages made by a judge sitting alone has been stated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd (2) at pp 616-617 as follows: 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 5 Where the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v. Lovell. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court to interfere, whether on the ground of excess or insufficiency. Thus the appellant here has to convince us that the learned trial judge has acted on a wrong principle of law, or has misapprehended the facts, or has for other reasons made a wholly erroneous estimate of the damage suffered. [8] To justify reversing the decision of the learned SCJ, therefore, I have to be convinced that he acted upon some wrong principle of law, or that the amount awarded was at either end of the spectrum, as to make it an entirely erroneous estimate of the damages. [9] Reference is made also to Kovalan Rajoo v. Hanif Muhamad Pauzi [2016] 2 CLJ 965, where the legal principles pertaining to an appeal against an award for damages, were distilled as follows:

The onus on an appellant is a heavy one;

(ii) The appellant must satisfy the Appellate Court: a. That the trial judge acted on a wrong principle of law; or b. The damages awarded was so extremely high or low to make it entirely an erroneous estimate of damages, or in other words, it is plainly unreasonable; or c. The trial judge omitted to consider some relevant materials or admitted some irrelevant considerations, 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 6 resulting in the award of damages being wholly inaccurate. In other words, if the trial judge had considered the relevant materials or did not take into consideration the irrelevant considerations, the trial judge would have come to an award entirely different from what he had awarded.

(iii) The award of damages in each case stands by itself;

(iv) It is not enough for the Appellant to show there is a balance of opinion or preference. [10] In United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] 1 LNS 164, Gill FJ (as he then was) put it very aptly when he applied, what I would refer to as, the “goodness gracious” test: The general principle is that an appellate court can only interfere with an assessment if it is considered inordinately low or inordinately high as to make the court exclaim, 'Good gracious, is that the sum which has been awarded that sum must be altered', or it is so much out of line with the discernible trend or pattern of awards is reasonably comparable cases that it must be regarded as a wholly erroneous estimate. [Emphasis added.] Contentions, evaluation and findings Subluxation of first to fourth metatarsal joints [11] The learned SCJ awarded MYR36,000 for subluxation of first to fourth metatarsal joints, with MYR9,000 for each joint subluxation, which the 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 7 Defendants contended was too high, and submitted that a total amount of MYR13,000 instead, would be reasonable. [12] The Compendium of Minimum and Maximum Awards for Personal Injury Claims (“the Compendium”) prescribes an amount between MYR7,000-00 and MYR12,000 for one fracture of metatarsal. Reference may also be made to Cheng Hock San v Omar Khata b SA Syed Khan & Anor [2013] 2 PIR [45], where the Court had granted an award in the amount of MYR10,000 for each subluxation. [13] In this case, the First Plaintiff suffered subluxation to four metatarsals, and the learned SCJ awarded MYR9,000 for each. In my view, there was no basis to intervene, as the total amount of MYR36,000 was not excessively high. As such, the Defendants’ appeal on this ground failed. Extensor tendon cut of second and fourth toes [14] The learned SCJ in relying on the Compendium, had awarded damages for tendon/ muscle cut in the amount of MYR18,000 (MYR9,000 for each cut). The Defendants, relying on Harnek Singh Argit lwn Kofmehl Rolf Huga (Wakil Diri Kepada Harta Pusaka) & Anor [2017] MLRSU 158, submitted that MYR9,000 would have been reasonable, whilst the Plaintiffs, on the basis of Wyishnu Jerome Raveenderen v Perbadanan Pengurusan Twin Towers [2018] 2 PIR [21], cross-appealed against the award granted by the learned SCJ, contending that MYR45,000 should have been granted instead. 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 8 [15] The Defendants further contended that the learned SCJ had in effect awarded a total amount of MYR54,000 for both subluxation of first to fourth metatarsal joints, and extensor tendon cut of second and fourth toes, and this amounted to overlapping of claims, which should be avoided. The Plaintiffs, on the other hand, submitted that this argument should be disregarded as it was not canvassed in the Sessions Court. [16] I am inclined to agree with the Plaintiffs as a perusal of the Defendants’ submission at the Sessions Court revealed that the Defendants had referred to the issue of overlapping claims only generally, and not in specific reference to both subluxation of first to fourth metatarsal joints, and extensor tendon cut of second and fourth toes. [17] In any event, I am mindful of the Court of Appeal case of Tan Cheong Poh & Anor v Teoh Ah Keow [1996] 3 CLJ 665, which prescribes granting one award for injuries that are centred at the same place, rather than to itemise it into ‘injuries and disabilities.’ However, it must be remembered that that case was decided before the Compendium became a staple of personal injury claims. [18] Although first tabulated in 2007 by the Kuala Lumpur Bar, it was only in January 2011 that the Compendium was in place. The principles in Tan Cheong Poh & Anor v Teoh Ah Keow should, therefore, be adopted contextually rather than inflexibly. [19] Although the Compendium is a mere guide and is not cast in stone, it is undoubtedly a useful gauge for the awards prescribed for personal 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 9 injury claims, as was stated by S Nantha Balan J (now JCA), in Abdul Waffiy Wahubbi & Anor v. AK Nazaruddin Ahmad [2017] 5 LNS 52: It is axiomatic and imperative that when awarding damages for pain and suffering for personal injuries, the court must endeavour to ensure that the sum awarded falls within the range as stipulated in the Compendium and it would be wrong for trial courts to ignore the range of damages as recommended in the Compendium and to pluck a quantum from the air and make an award for a particular injury which does not resonate with the range in the Compendium. [20] In any event, even proceeding on the basis of Tan Cheong Poh & Anor v Teoh Ah Keow that a global sum should have been awarded, in my view, the total sum of MYR54,000, although awarded separately by the learned SCJ, was a fair and reasonable sum granted for the combined effect of both subluxation of first to fourth metatarsal joints and extensor tendon cut of second and fourth toes. [21] There is, therefore, no basis for interfering with such award, in view of the fact that both the Defendants and Plaintifs had failed to convince the Court that the amount awarded by the learned SCJ was either excessively high or low. Cost of NSAIDS [22] The Defendants submitted that the learned SCJ had erred in awarding an amount of MYR6,000 for the costs of nonsteroidal anti-inflammatory drugs (“NSAIDS”). A perusal of the grounds of judgment of the learned SCJ indicated that he had relied on the evidence of the orthopedic specialist, Dr Jeyaratnam. In my view, the learned SCJ was in the best 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 10 position as the trial judge to decide which evidence to rely on and as such, there was no appealable error made by him on this point. Osteoarthritis [23] At the Sessions Court, the Plaintiffs had submitted on both osteoarthritis and osteophytes. The learned SCJ granted an award in the sum of MYR5,000 for osteophytes but had not addressed osteoarthritis, and no reasons were given for such omission. The Defendants contended that MYR5,000 was the correct amount awarded for osteoarthritis. [24] Osteophytes and osteoarthritis, the former being a feature of the latter, were two separate items claimed by the Plaintiffs. In light of that, I was of the view that the amount of MYR20,000 for osteoarthritis was not unreasonable, based on authorities such as Rugber Kaur a/p Ajaib Singh v Ho Shee Fun & Anor [2011] 2 PIR [26] and Paramasivan a/l Savy Peruman v Ibrahim b Mohd Amin & Anor [2008] 2 PIR [10]. Actual loss of earnings [25] The learned SCJ had awarded actual loss of earnings in the amount of MYR7,344. The Defendants argued that he had erred in reaching this amount as there was no proof that the First Plaintiff had actually suffered such loss. My perusal of the notes of evidence indicated that there was proper reliance on the medical certificate, and payslips, which parties had agreed to mark as Part B of the Bundle of the Documents, as well as the oral evidence of SP2, the Assisant Manager of the First Plaintiff’s employer. 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 11 [26] In any event, medical certificates and payslips are admissible pursuant to sections 32(1)(b), 73A(1) and 73A(2) of the Evidence Act 1950. I, therefore, fail to see any appealable error made by the learned SCJ on this point. Loss of earning capacity [27] The Defendants contended that the learned SCJ erred in granting an award for loss of earning capacity, bearing in mind that there was no proof of such, as the First Plaintiff had returned to work. In my view, this argument is misconceived as there is a difference between future loss of earnings and loss of earning capacity. This was expounded by the Federal Court in Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30, where it was stated by Syed Agil Barakbah FJ in the following passage: There is also a difference between loss of future earnings and loss of earnings capacity although both items are under general damages. Future loss of earnings or loss of prospective earnings are awarded for real assessable loss, i.e. loss that is capable of assessment at the date of the trial. It must be proved by evidence and not by mere speculation. In the absence of such evidence if the court is satisfied that the plaintiff has suffered a loss of earnings capacity, he will be awarded a sum as part of the general damages for his disability suffered as a result of the injuries sustained, instead of compensation for loss of future earnings. It arises where there is a residual risk that the plaintiff might be thrown out of work altogether at some future date It is therefore immaterial whether the plaintiff was in or out of employment at the time of the trial so long as the Court is satisfied there is substantial or real risk that he will some time at the end of his working life lose his job or get a less paid employment because of the effect of the injuries sustained. (See Denning MR in Cook v. Consolidated Fisheries Ltd. (supra) p. 639). 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 12 [Emphasis added.] [28] Reference is made also to Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] 1 CLJ 377, where the Supreme Court, in adopting Ngooi Ku Siong & Anor v Aidi Abdullah, stated, through Syed Agil Barakbah SCJ, as follows: The proper test to be applied 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. The principle applicable to future loss of earning capacity and its distinction with future loss of earnings are explicitly discussed in Ngooi Ku Siong & Anor v Aidi Abdullah (1984) 1 CLJ (Rep) 294 by the Federal Court. The proper test to be applied 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 Court is satisfied from evidence that there is a real or substantial risk that his earning capacity will be effected in the future. Moeliker v A. Reyrolle & Co. Ltd (1977) 1 All ER 9 and Cook v. Consolidated Fisheries Ltd. (1977) 1 CR 635, 639 are some of the cases in which a claim for loss of earnings was allowed to plaintiffs who were in employment and whose earnings not affected at the material time. [Emphasis added.] [29] The Plaintiffs, in their cross-appeal, contended that although the learned SCJ was correct in awarding damages for loss of earning capacity, he erred in granting the amount of MYR248,400. The Plaintiffs submitted that the correct calculation was the one prescribed in the case of Sivakumar a/l Avolasamy v. Chan Hoong Kok [2012] 1 LNS 52, where the multiplier should be half of the number of years, 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 13 after minusing the First Plaintiff’s age from 55; and the multiplicand should be half of the First Plaintiff’s salary, as explained by Vernon Ong Lam Kiat J (now FCJ) in the following passage: In this case, the specialist reports of the Plaintiff and the Defendant confirm that due to his injuries, the Plaintiff will no longer be able to work as a fitter at a shipyard and only suitable for sedentary work. Plaintiff is unlikely to find an equally well paid job. There was firm evidence of the earnings of the Plaintiff, the correct method of assessing the loss is the multiplier – multiplicand method. The starting point should be the amount the Plaintiff was earning at the time of the accident and the multiplier. As the Plaintiff was 32 years of age at the time of the accident, the multiplier applicable is 11.5 years. At the material time, the Plaintiff was earning RM

96.00 per day ; taking in account off days, it is reasonable to estimate that the Plaintiff’s earnings per month is RM 96.00 x 23.95 = RM2,300.00. The SCJ awarded RM 66,000.00. The award made by tha SCJ is so extremely small as to make it an entirely erroneous estimate of the damage. In the circumstances of this case, the award for loss of earning capacity should be RM 1,000.00 x 11.5 x 12 = RM138,000.00. Accordingly, the award of RM 66,000.00 is substituted with an award of RM 138,000.00. [30] The Plaintiffs argued that, using the formula prescribed by Sivakumar a/l Avolasamy v. Chan Hoong Kok, the award for loss of earning capacity should be in the total amount of MYR937,917, calculated as follows: 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 14 SGD2265 (50% of the monthly average income of the First Plaintiff) x 12 months x 11.5 years ((55-32) x ½) [31] I am unable to agree with the Plaintiffs, in view of the fact that in Sivakumar a/l Avolasamy v. Chan Hoong Kok, the learned High Court judge had disagreed with the trial judge on the basis that the latter had awarded an amount of only MYR66,000, which the learned High Court judge said was ‘so extremely small as to make it an entirely erroneous estimate of the damage.’ In this case, the learned SCJ had awarded MYR248,400, which in my view, was reasonable and just. [32] Furthermore, the Sivakumar principle is not a hard and fast rule, but merely a guide prescribed for trial judges to gauge what amount would be reasonable and just. Non-compliance with the Sivakumar principle did not automatically render the error (if at all), an appealable one. Conclusion [33] In the upshot, therefore, based on the aforesaid reasons, and after careful scrutiny and consideration of all the evidence before this Court, including the written and oral submissions of both parties, and the grounds of judgment of the learned SCJ, the Defendants’ appeal was dismissed, whilst the Plaintiffs’ cross-appeal was allowed only with regard to the award for osteosarthritis; and with costs to the Plaintiffs in the amount of MYR3,000 (subject to allocatur fees). 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 15 Dated: 15 December 2020 ……………..SIGNED……………… (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel: For the Appellants/ Defendants – D Sakila; Messrs Othman Hashim & Co For the Respondents/ Plaintiffs – M Saralathevi; Messrs Teo & Associates Cases referred to: ➢ Abdul Waffiy Wahubbi & Anor v. AK Nazaruddin Ahmad [2017] 5 LNS 52 ➢ Cheng Hock San v Omar Khata b SA Syed Khan & Anor [2013] 2 PIR [45] ➢ Harnek Singh Argit lwn Kofmehl Rolf Huga (Wakil Diri Kepada Harta Pusaka) & Anor [2017] MLRSU 158 ➢ Kovalan Rajoo v. Hanif Muhamad Pauzi [2016] 2 CLJ 965 ➢ Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30 ➢ Paramasivan a/l Savy Peruman v Ibrahim b Mohd Amin & Anor [2008] 2 PIR [10] 15 December 2020 …………………………………………………………………………………………………………………………………………………………… --------------------------------------------------------------------------------------------------------------------------------------- 16 ➢ Rasidin Binpartorjo v Frederick Kiai [1976] 2 MLJ 214, [1976] 1 LNS 123 ➢ Rugber Kaur a/p Ajaib Singh v Ho Shee Fun & Anor [2011] 2 PIR [26] ➢ Sivakumar a/l Avolasamy v. Chan Hoong Kok [2012] 1 LNS 52 ➢ Tan Cheong Poh & Anor v Teoh Ah Keow [1996] 3 CLJ 665 ➢ Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 ➢ Topaiwah v. Salleh [1968] 1 LNS 161 ➢ United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] 1 LNS 164 ➢ Wyishnu Jerome Raveenderen v Perbadanan Pengurusan Twin Towers [2018] 2 PIR [21], ➢ Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] 1 CLJ 377 Legislation reffered to: Evidence Act 1950, sections 32(1)(b), 73A(1) and section 73A(2) of the Other sources referred to: ➢ Compendium of Minimum and Maximum Awards for Personal Injury