1. Teo Voon Loon v Hairuddin Bin MD Jinal (BA-12B-50-03/2016)

WONG SOON FATT … PERAYU-PERAYU DAN HAIRUDDIN BIN MD JINAL … RESPONDEN [Dalam Perkara Mengenai Mahkamah Sesyen di Shah Alam Saman No: A53KJ-409-6/2015 ANTARA HAIRUDDIN BIN MD JINAL … PLAINTIF

WONG SOON FATT … DEFENDAN-DEFENDAN] 2 GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellants (Defendants) against the decision of the Session Judge after a full trial involving an accident case, on quantum only for general damages, special damages and cost. [2] The Respondent (Plaintiff) cross-appeal on the Session Judge’s decision for quantum against the three award on the grounds as follows:

the award for posterior dislocation of right hip was too low;

there was no award for the injury ‘mild para-spinal tenderness over lower back region’ and

the award for bills and receipts from Hospital Pusat Perubatan Universiti Malaya were too low. [3] In this judgment the Parties will be known as they were in the Sessions Court. Brief Facts [4] The factual background giving rise to this appeal had been elucidated by the Session Judge in his written judgment (pages 13 – 20 of Supplementary Appeal Record). 3 Defendants’ case [5] Briefly, the learned counsel for the Defendant advanced the grounds of appeal on the award for the loss of earnings with multiplier 16 years and 3 months that would exceed the multiplier stipulated under section 28A(2)(d)(i) of Civil Law Act 1956 and the medication cost amounting to RM55,200.00 which was without any support of evidence. [6] The Defendant’s counsel submitted that the Plaintiff had only suffered one injury which is a moderate injury, that is the posterior dislocation of right hip with no shortening where the award should be RM12,000.00. The Defendants’ counsel averred that although the Session Judge awarded RM15,000.00 as minimal and Defendant’s appeal is not on general damages, the award for the said injury is relevant towards special damages that includes cost for future medication and loss of earnings that are linked to the moderate injury suffered by the Plaintiff. [7] The Defendant’s counsel averred that the award by the Session Judge is inconsistent with the award of special damages that are excessive for loss of actual earnings of RM9,500.00, loss of earnings RM76,800.00 and medication amounting to RM55,200.00. [8] The counsel for the Defendant averred that the loss of earnings awarded for 3 months and 16 years would exceed the 16 years as allowed under section 28A(2)(d)(i) of Civil Law Act 1956 (Act 67) where the multiplier for the victim age 30 years is 16 years and not 16 years and 3 months which is a fundamental error on the part of the Session Judge. 4 [9] It is the contention of the Defendants’ counsel on Plaintiff’s awards as Plaintiff’s own specialist reported with positive comments that Plaintiff “ambulated normally” (page 43 Supplementary Appeal Record and page 35 of Appeal Record) and there was no mentioned that the Plaintiff requires medication of NSAID for 46 years amounting to RM55,200.00 as Plaintiff is recovering. [10] Regarding special damages, the Defendants’ counsel averred that it must be strictly proven and relied on the authorities, to name a few: Thirimalai Palamiappan & Anor v Mohd Masry Tukiman [1986] CLJ 756 and Yeap Cheng Hock v Kajima Taisei Joint Venture [1991] 1 LNS 155. It was brought to this Court’s attention that the counsel for the Defendants had objected to the three months’ salary slips of the Plaintiff which was accepted by the Sessions Court as the salary slips were only produced at the trial (page 31 of Supplementary Appeal Record). The counsel for the Defendants submitted that the Session Judge erred in law and facts in allowing the overtime rate for the 3 months which is RM2,100 prior to the accident totaling RM6,300.00 and the difference between the overtime rate and salary before and after the accident for 8 months: RM2,100.00 – RM1,700.00 x 8 = RM3,200.00 which amounts in total RM9,500.00 which the Defendant’s counsel had objected. [11] It was submitted that the case referred Renhome Bricks Factory Sdn Bhd & Anor v Watah Umpin [2009] 9 CLJ 494 would differ from this instant case as the trial judge had allowed Defendant’s counsel’ objection whereas in that Renhome (supra) case, the court accepted the evidence of the plaintiff without the supporting documents of income tax and EPF. The 5 Defendants’ counsel contended that the calculation exceeded the multiplier of 16 years as at the time of the accident, the Plaintiff was 26 years of age and further argued that based on Plaintiff’s own specialist, there was no indication that Plaintiff’s injury has any effect on Plaintiff’s career performance. [12] In relation to the medication cost awarded of RM55,200.00, the Session Judge had erred by deciding that the Plaintiff requires the medication until the age of 72 by calculating on the basis, 72-26 x 12 x RM100, totaling RM55,200.00 when the specialist did not indicate as such. Plaintiff’s case [13] The learned counsel for the Plaintiff submitted in relation to the award for the Plaintiff’s injury that the Defendant’s counsel did not challenge the specialist report. The Plaintiff’s counsel submitted that the statement that the medicine is available at Government hospital was not put to the specialist. It is averred that the Plaintiff’s specialist had stated that the treatments are needed (page 40 of Appeal Record). [14] It was submitted that the difference in the case submitted by the Defendant, the case of Thirimalai Palamiappan (supra) case and the current case is that there is a failure to cross-examine which means that the Defendant had accepted the facts by the Plaintiff. [15] In relation to loss of earnings, the Plaintiff’s counsel submitted that no influence incurred as the salary slips had been served before the hearing. 6 The question about the reduction based on overtime was not asked against the employer of the Plaintiff by the Defendant’s counsel and there was only one question asked to the Plaintiff and not to the employer. It was also submitted that the payment salary was confirmed by the employer. [16] The Plaintiff’s counsel argued on the two cases submitted by Defendant’s counsel that is Thirimalai Palamiapp (supra) case and Yeap Cheng Hong (supra) case where judicial notice can be taken that the Plaintiff is working and sustained loss of overtime. In addition, it was submitted that the Plaintiff is claiming for RM400 only and not the whole sum and that the Defendant’s counsel failed to ask the Plaintiff where he was working prior to the accident. Cross-appeal [17] The Plaintiff’s counsel submitted that there are two injuries and not one where the doctor said that Plaintiff suffered mild para-spinal tenderness over the lower back region which was not awarded by the Sessions Court (page 44 of Appeal Record). The Plaintiff seek for RM40,000 for the hip injury as the RM12,000 is too low. Defendant’s reply [18] The Defendant’s counsel averred that the Plaintiff could not show any documents that there was a reduction of overtime as testified by his employer whom testified that the overtime was reduced. In relation to the medical specialist report, the Defendant’s counsel submitted that it was 7 agreed by both parties that the mild para-spinal tenderness over the lower back region is not an injury. Decision of the Sessions Court [19] The Session Judge’s decision can be found at pages 13-20 of Supplementary Appeal Record. Some of the written judgement is reproduced here for ease of reference: “Gantirugi Am ……

Posterior dislocation of right hip [5] Pihak Plaintiff telah mencadangkan RM45,000 manakala, Defendan mencadangkan RM12,000. Mahkamah mendapati RM15,000 adalah suai manfaat dan munasabah dengan mengambilkira keilatan-keilatan yang dialami oleh Plaintif akibat kecederaan ini. Oleh itu, amaun tersebut telah dibenarkan.

Mild para-spinal tenderness over lower back region [6] Award untuk kecederaan ini tidak dibenarkan kerana tidak dibuktikan. Kecederaan ini juga tidak dinyatakan dalam laporan pakar Plaintif. ii) Gantirugi Khas …. 8 [14] Walaupun saksi yang menyediakan P15 itu hadir di Mahkamah dan memberi keterangan, pihak Defendan langsung tidak mencabar fakta tersebut secara pemeriksaan balas dan lantaran itu, fakta itu hendaklah dianggap sebagai diterima oleh pihak Defendan. Adalah satu hujahan yang tidak bermerit untuk pihak Defendan berhujah bahawa item ini tidak dibuktikan. Mahkamah telah membenarkan amaun RM60 bagi 3 sesi seminggu untuk tempoh 16 minggu (4 bulan) yang berjumlah RM2,880 tanpa faedah. …. ….” APPEAL [20] The legal position is clear and can be found in a number of great authorities that an appellate court should but rarely interfere with conclusion arrived at by the trial judge who has had the advantage of hearing the witnesses unless it is satisfied that the judge has acted on a wrong principle of law or has made a wholly erroneous estimate of damage suffered. On the point of appellate intervention, the Plaintiff’s counsel submitted the Federal Court case of Rasidin bin Partojo v Frederick Kiai [1976] 2 MLJ 214 and the Defendant’s counsel submitted the case of Hamri bin Noorsae & Anor v Mas Robil bin Buang & 3 Ors [1995] 4 CLJ 589. [21] This Court refers to the Federal Court case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 where the test is the ‘plainly wrong test’ by the trial judge to warrant the appellate 9 court to interfere. It is trite law that the fact finder’s decision cannot be disturbed on appeal unless the trial judge was plainly wrong. [22] The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd [2017] 4 MLJ 697. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [23] The heart of the matter involves damages where damages must be proven and the plaintiff bears the burden to prove. Before this Court can interfere with an award of damages, this Court must be satisfied, based on the principle in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 and the Federal Court case of Gan Yook Chin (supra) as referred by the Court of Appeal in Lay Hong Food Corporation Sdn Bhd v Tiong Nam Logistics Solutions Sdn Bhd [2017] 1 LNS 708, that the trial Judge had acted on the wrong principle of law or has misapprehended the facts or made wholly erroneous estimate of the damage suffered. [24] The claim for damages must be based on evidence and the standard is balance of probabilities. This is as decided by the Federal Court in the case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors 10 [2016] 1 PIR [16]; [2016] 2 CLJ 885 where YA Abdull Hamid Embong FCJ (as he then was), had occasion to say, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future.” [25] The claims for loss of earnings and loss of future earnings had been extensively discussed in many great decisions and I rely on the case decided by the Federal Court in Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ 294 which was referred by the Court of Appeal in the case of Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489. Loss of earning is normally considered as a pre-trial loss, it is an actual amount of earnings lost by a plaintiff as a result of an accident caused by the defendant. [26] Based on the facts and evidence before this Court, I find that the evidence adduced by the Plaintiff that is the salary slip had been objected by the Defendant and the objection was accepted by the Session Judge (page 31 of Supplementary Appeal Record). The objection towards the salary slips by the Defendant’s counsel and posing questions relating to SOCSO and EPF that were not produced (page 40 of Supplementary 11 Appeal Record) is a form of technical challenge and need no further explanation by this Court. [27] The Session Judge may however have accepted the evidence of the Plaintiff’s employer on the Plaintiff’s salary by relying on the case of Renhome Bricks Factory Sdn Bhd & Anor v Watah Umpin [2009] 9 CLJ 494 (paragraph 19, page 18 of Supplementary Appeal Record). Pertaining to the calculation for loss of actual earnings, the Session Judge had used the multiplier of 16 as the Plaintiff was at the age of below 30 at the time of accident which is in accordance with section 28A(2)(d)(i) of Civil Law Act 1956. The Session Judge decided (paragraph 17, page 17 of Supplementary Appeal Record) as follows: “[17] Adalah keterangan mantap bahawa Plaintiff tidak dibayar gaji lebih masa untuk 3 bulan dari tarikh kemalangan. Gaji lebih masa untuk sebulan ialah RM2,100. Amaun ini langsung tidak dicabar oleh pihak Defendan dalam pemeriksaan balas SP4. Maka gaji lebih masa untuk 3 bulan ialah RM6, 300. Menurut SP4 dan Plaintif, selepas kemalangan wujud penurunan dalam gaji lebih masa sebanyak RM400. Maka, perbezaan gaji lebih masa sebelum dan selepas kemalangan untuk 8 bulan ialah RM3,200. Sejumlah RM9,500 telah dibenarkan sebagai kehilangan pendapatan sebenar.” [28] This Court also finds that the salary slips had been identified as ID 5 A-C for the purpose of examination during testimony (page 32 of Supplementary Appeal Record) and the Defendant did challenge on the 12 salary and the overtime work (pages 34-35 of Supplementary Appeal Record). [29] Briefly, this Court viewed that the Plaintiff’s employer’s testimony that the Plaintiff was working prior to the accident was accepted by the Session Judge. This Court however cannot allow the overtime rate as claimed by the Plaintiff as the Plaintiff could not have worked over time when the Plaintiff is not working. It is plainly wrong to allow for overtime claim when the Plaintiff was not working for the 3 months after the accident. Furthermore, although the Plaintiff was not at work for 3 months, the Plaintiff was paid with his basic salary (page 33 of Supplementary Appeal Record). In addition, the difference based on the reduced overtime rate after the accident could not be claimed without any evidence adduced. This Court takes the view that based on the legal authority of Ngooi Ku Siong (supra) case, loss of actual earnings must be proven by evidence and therefore the overtime claims which is the 3 months during medical leave and the 8 months after the accident that is the sum of RM 9,500.00 is to be set aside. [30] In relation to the medication cost, the medical specialist report speaks that the Plaintiff will recover and therefore the award of RM55,200.00 based on the 72 years as life span can only be granted based on evidence of medical specialist with the discretion of deduction of 1/3 considering it would be accelerated payment and the uncertainty of living until the age of 72 years: Kanan Subramaniam & Satu Lagi v Aman Shah Abadzyuid [2002] 6 CLJ 34. 13 [31] Upon careful perusal of the medical specialist report (pages 40-41 of Appeal Record) of the Plaintiff’s, “The patient can be treated with analgesic, physiotherapy (RM60 per session at 3 weekly sessions for a period of 3 to 4 months) and NSAIDs (RM100 a month). He is expected to improve over time.” This Court finds that nowhere in the medical specialist report stated that the Plaintiff will require such treatment for 42 years or until the age of 72. The medical specialist report clearly stated that the Plaintiff will “improve over time” and therefore the sum of RM55,200.00 on the basis of 42 years be reduced to 2 years amounting to RM2,400.00. Cross-appeal [32] Regarding award of RM15,000 for the injury of dislocated hip, this Court viewed that the Session Judge had evaluated based on the medical specialist report, the compendium for personal injury and the case laws. This Court viewed that the Session Judge was not wrong in law in awarding RM15,000.00 and viewed that the award be sustained. In relation to the claim of mild para-spinal tenderness over lower back region, there is no evidence adduced as it is not reported in the medical specialist report and is thereby dismissed. This Court viewed that the Session Judge allowed the award for the bills and receipts from Hospital Pusat Perubatan Universiti Malaya according to the bills and receipts as submitted. The cross-appeal is hereby dismissed. 14 In the light of the above reasons, I allow for partial appeal with cost at RM2,000.00. Dated: 26 January 2018 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 15 COUNSEL FOR APPELLANT: S. SIVAKUMARESAN Tetuan Naicker & Associates Peguambela dan Peguamcara No. 33 (2nd Floor) Jalan Desan, Taman Desa 58100 Kuala Lumpur Tel : 03-7981 7329 Fax : 03-7981 8729 [Ref: NA/AXA-198/BI/Appeal/i] COUNSEL FOR THE DEFENDANT DHAYALINI A/P P. G. DORAISAMY Tetuan G. Dorai & Co. Peguambela dan Peguamcara No. 13A, Jalan Cempedak Off Jalan Kovil Hilir 51100 Sentul Kuala Lumpur Tel : 03- 4050 9101 Fax : 03- 4050 3425 [Ref: PGD/B/5124/14/ins/ina]