12B-150-07/2015
High Court of Malaysia5 Apr 2017
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“r Bakery on Plaintiff’s salary. [15] In relation to the submission that Plaintiff failed to call a witness in charge of his salary to testify, the Defendant’s counsel asserted that section 114(g) of Evidence Act 1950 on the principle of adverse inference be invoked against the Plaintiff and that both witnesses were wor”
“of the matter involves damages and 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 as referred by the Court of Appeal in Lay Hong Food Corporation Sdn Bhd v Tiong Nam Logistics Solutions Sdn”
“e medical report, shows that the Plaintiff will face a substantial risk of either losing her job or getting a less paid employment in future and relied on Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] CLJ 419. [12] In relation to loss of earnings, Plaintiff’s counsel submitted in its written submission that the P”
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1 DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN SIVIL NO.: 12B-150-07/2015 ANTARA …PERAYU-PERAYU DAN MUHAMMAD FARIZ HARRAZ BIN HASHIM …RESPONDEN DALAM MAHKAMAH MAJISTRET DI BANDAR BARU BANGI DALAM NEGERI SELANGOR DARUL EHSAN SAMAN NO.: A73KJ-318-6/2014 ANTARA MUHAMMAD FARIZ HARRAZ BIN HASHIM …PLAINTIF DAN …DEFENDAN-DEFENDAN
3
2 GROUND OF JUDGMENT Introduction [1] This appeal by the Appellants on the Sessions Court’s decision, derived from a road accident matter. The Appellants who are the Defendants, are appealing only for the award of loss of earnings and loss of earning capacity where the Sessions Court had allowed for the Respondent, the Plaintiff. The Sessions Court decided that the liability is 90% on the Defendants and 10% on the Plaintiff. [2] The parties, in this judgment, will be known as they were in the Sessions Court. Facts [3] The Defendants’ grounds of appeal as in the Amended Memorandum of Appeal dated 26.11.2015 are as follows: “1. Hakim Mahkamah Sesyen telah terkhilaf apabila mengawadkan sejumlah RM9,600.00 bagi kehilangan pendapatan walaupun Plaintif gagal membuktikan pekerjaan sahihnya sebelum kemalangan dan jumlah pendapatannya adalah setinggi itu. 3 memberikan keterangan mengenai pekerjaan ataupun pendapatan Plaintif sebelum kemalangan mahupun selepas kemalangan.
4
Hakim Mahkamah Sesyen telah terkhilaf apabila gagal mempertimbangkan hujahan Defendan untuk menolak keterangan saksi SP-1 dan SP-2 keseluruhan atas isu dokumen berkaitan tuntutan bagi kehilangan pendapatan dan kehilangan keupayaan pendapatan masa hadapan yang difailkan oleh Plaintif adalah diragui serta dipertikaikan ketika pemeriksaan balas SP-1 dan SP-2.” [4] The Plaintiff claimed that he suffered a very serious injury to his leg and knee where he had to be on medical leave for two years after the accident and for 22 months he was unable to walk. [5] The Plaintiff stated that he works for Meor Bakery as a driver and was working at the day of accident. As a driver, he is to deliver bread and cake baked by Meor Bakery to the shops at the higher institutions for instance UM and UKM. The Plaintiff claimed that his basic salary is RM800 and his attendance allowance is RM100 and is paid commission at RM0.01 cent per bread sold and his monthly commission would be RM 250.00. [6] The Plaintiff did not return to work after the accident and has not been receiving any salary. The Plaintiff’s employment, Meor Bakery had 4 ceased operation in March 2014 due to financial woes and the Plaintiff claimed that all company records other than those submitted at Sessions Court were lost or misplaced. [7] The Sessions Court allowed for Loss of Earnings of RM9,600 for the 24 months Plaintiff was on medical leave and for Loss of Earning Capacity of lump sum RM80,000.00. Plaintiff’s case [8] Based on Plaintiff’s counsel’s written submission at pages 3-4, it was submitted that the Plaintiff’s oral evidence at the Sessions Court were supported by the original documents as exhibits, among others: “(i) Sijil Cuti Sakit Hospital Ampang dari tarikh kemalangan 11/7/2013 sehingga tarikh bicara 11/5/2015;(kesemuanya dipersetujui) M/S 60-82, 156-157, 160-161 Rekod Rayuan)
II
(ii) Surat Tawaran Perlantikan Kerja (Eksibit P-1 M/S 84-88 Rekod Rayuan)
III
(iii) Sijil Pendaftaran Peniagaan Meor Bakery (Ekshibit P-2 M/S 83 Rekod Rayuan)
IV
(iv) Sijil Pendaftaran Perniagaan Meor Bakery 2013 sehingga 2017 (Ekshibit P-3 M/S 102 Rekod Rayuan) 5 …..
VII
(vii) Surat pengesahan Pekerjaan (Ekshibit P-6 M/s 89 Rekod Rayuan) (Majikan telah mengesahkan terdapat kesilapan menaip di mana tarikh akhir pekerjaan Plaintif adalah pada 31 Mac 2014 bukan 31 Mac 2013…..” [9] It was submitted in reference to the specialist report of the Plaintiff at page 56 of Appeal Record, and the Defendant’s, where the specialist for the Plaintiff stated, “He is unable to go back to pre-injury occupation due to stiffness at the ankle. There is surgical site dan possible deep tissue infection that will recover long term antibiotic with possible additional surgery for eradication. This necessitates long follow up with inability to return work for the foreseeable medium time frame” (emphasised by Plaintiff’s counsel)
Preamble
Whereas the Defendant’s specialist (page 99 of Appeal Record) stated, “At this point I believe that he is still on medical leave from his attending doctor but there is no reason why he should not be able to go back to his previous occupation and all other physical activities in the next 3-4 months” (emphasised by Plaintiff’s counsel) 6 [10] The Plaintiff’s counsel in his written submission submitted that the Defendant’s specialist’s report was in January 2015 and the Plaintiff who came to Sessions Court on 11.5.2015 to testify was unable to walk and was on medical leave and had been classified as a disabled person, a ‘OKU’. The counsel submitted that the Plaintiff is unable to work and would not be able to work in the near future and relied on a number of authorities, to name a few, the case of Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489; Tan Swee Tiong v Khor Chin Hau [2002] 1 CLJ 486; Fadzly Nor Rahim & Anor v Chang Foh Chin [2007] 10 CLJ 233; Lee Chong Keong v Cheong Kok Weng [1995] 1 LNS 107. [11] The Plaintiff’s counsel at paragraph 2.17 of his written submission relied on the High Court case of Abdul Aziz Ahmad & Anor v Sharifah Nor Hafizah Syed Abd Rahman [2009] 1 LNS 1615 where the Plaintiff returned to his work after 2 years after the accident and was awarded RM40,000 for loss of earning capacity based on the medical report although the said medical report does not support the conclusion that plaintiff is incapable of earning a living. It was submitted that the Plaintiff’s disability as evidenced in the medical report, shows that the Plaintiff will face a substantial risk of either losing her job or getting a less paid employment in future and relied on Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] CLJ 419. [12] In relation to loss of earnings, Plaintiff’s counsel submitted in its written submission that the Plaintiff is of 21 years of age and the lump sum of RM80,000.00 be retained, relying on the authority Abdul Aziz Ahmad (supra) case, 7 “Plaintif berumur 21 tahun pada waktu kemalangan Multiplier untuk kehilangan Pendapatan Masa Depan adalah 16 tahun (Akta Sivil 1956) Pendapatan Sebelum Perbicaraan Awad RM9,600.00 yang dibenarkan wajar dikekalkan Pendapatan Selepas Perbicaraan Adalah menjadi hujahan pihak Plaintif abahwa untuk awad ini, awad loss of earning capacity harus dikekalkan kepara Plaintif sememangnya tidak boleh bekerja untuk masa terdekat dan terdapat bahawa beliau tidak boleh mendapat pekerjaan yang sama dan telah diklasifikasikan sebagai OKU (“Orang Kurang Upaya”)(Ruk: Ekshibit P-8 M/S 59 Rekod Rayuan) …..” Defendant’s case [13] The learned counsel for the Defendant advanced several grounds for this appeal and averred that for the award of RM9,600 for loss of earnings, it should not be allowed based on the discrepancy of facts and evidence of the Plaintiff. The main arguments meted out are, briefly, as follows: 8
a
The Plaintiff had stopped working at Meor Bakery in March 2013, 4 months before the accident (see page 4 of Defendant’s counsel’s written submission). It was submitted that any oral evidence of SP2 and SP1 on the salary which was given without the support of documentation must not be considered as it would be a hearsay.
b
The Plaintiff’s witness, Encik Meor Ammar, SP1 whom testified in Court was not the Director in charge of salary and welfare of workers of Meor Bakery but was only ‘Pengarah Operasi’. The Director in charge of salary is one Nurulhuda whom the Plaintiff did not call as witness and SP1 admitted that he need not prepare the contract of employment as it will be prepared by Nurulhuda.
c
The company Meor Bakery had ceased operation on 31.3.2014. The Defendant’s counsel brought to this Court’s attention that the Plaintiff’s witness, SP1, wanted to amend his letter of 23.11.2014 (page 89 of Appeal Record) that was issued on Plaintiff’s employment upon Plaintiff’s request, after the company Meor Bakery had ceased operation and without any supporting documents.
d
The contract of employment of 8.10.2012 (pages 84-88 of Appeal Record) did not show the signature of the Plaintiff to proof that Plaintiff is employed by Meor Bakery. The Bill Book 9 (exhibit P7) shown by SP1 did not reflect Plaintiff’s attendance nor Plaintiff’s signature of the deliveries made.
e
The contract of employment’s terms do not show the working hours of the Plaintiff. The salary scale provided only mentioned RM800.00 as basic salary with RM100.00 as attendance allowance if Plaintiff is a permanent driver. [14] The counsel for the Defendant averred that SP2’s and SP1’s evidence, in totality, is doubtful and raises the question as to whether SP1 testified in court as Plaintiff’s employer or Plaintiff’s friend. It was also submitted in writing that the Plaintiff testified that upon receiving his salary, he will sign a salary voucher but none of the salary vouchers were produced in court nor was there any document from Meor Bakery on Plaintiff’s salary. [15] In relation to the submission that Plaintiff failed to call a witness in charge of his salary to testify, the Defendant’s counsel asserted that section 114(g) of Evidence Act 1950 on the principle of adverse inference be invoked against the Plaintiff and that both witnesses were worried that the truth will be revealed that at the time of the accident, the Plaintiff no longer works for Meor Bakery as Meor Bakery had ceased operation. [16] It was contended by the Defendant’s counsel in his written submission (pages 6-10 of HUJAHAN BERTULIS PERAYU DEFENDAN) that the Plaintiff is not entitled to award for loss of earning capacity of RM80,000.00 as this would connote that his injury was very serious and the 10 award was excessive. In addition, the counsel submitted that based on the specialist report which should be considered as evidence, in particular at page 99 of the Appeal Record, the Plaintiff failed to prove that he is entitled for loss of earning capacity. The Sessions Court’s Decision [17] Some of the Sessions Court’s decision is found in Supplementary Appeal Record and reproduced here in parts, for ease of reference: “…. Walaubagaimana pun Mahkamah membuat keputusan sedemikian setelah berpuas hati dan bersetuju dengan hujahan Plaintif bahawa Plaintif bekerja sebelum kemalangan berlaku. Ini berdasarkan keterangan yang diberikan oleh saksi-saksi Plaintif iaitu SP2 (Plaintif sendiri) dan SP1 (wakil Majikan) yang mengesahkan tentang isu tersebut. Mahkamah merujuk kepada kes yang sama dirujuk oleh peguamcara Plaintif iaitu Sumarni v Yow Being Kweng & Anor [2008] 1 MLJ 608. …… Oleh itu Mahkamah berpendapat Plaintif memang layak mendapat pampasan bagi tuntutan ini setelah merujuk kepada keterangan beliau di Mahkamah yang beliau bekerja sebagai pemandu van menghantar roti dan disokong pula dengan keterangan wakil majikan iaitu SP1 serta dokumen kontrak lantikan bekerja yang ditandakan sebagai ekhibit di Mahkamah. 11 ….. Oleh yang demikian berdasarkan alasan di atas maka Mahkamah berpendapat bahawa tuntutan Plaintif bagi kehilangan keupayaan pendapatan masa hadapan patut dan munasabah serta setimpal dengan bukti serta keterangan yang dikemukakan di Mahkamah dan setelah mengambil kira faktor umur Plaintif yang masih muda iaitu hanya 21 tahun pada masa kejadian berlaku, serta setelah mengambil kira faktor ekonomi semasa, maka Mahkamah sekali lagi menegaskan bahawa awad yang dibenarkan adalah sama sekali tidak eksesif sebagaimana yang didakwa oleh peguamcara Defendan. Ini kerana ia dibuat setelah mengambil semua fakta kes sebagaimana keterangan lisan serta dokumen berkaitan yang dikemukakan oleh Plaintif di Mahkamah. [ii] Gantirugi Khas oleh Plaintif: (atas dasar 100%) a. Item (n) Kehilangan pendapatan sebenar-RM400.00 x 24 bulan = RM9,600.00 ….. Setelah menilai hujahan kedua-dua pihak Mahkamah berpendapat cadangan awad yang dicadangkan Plaintif adalah terlalu eksesif serta lumayan manakala cadangan Defendan pula difikirkan terlalu rendah dan tidak berpatutan. Maka Mahkamah telah mengambil 12 pendekatan dengan membuat keputusan dengan membenarkan awad sebanyak RM9,600.00 berdasarkan kiraan seperti berikut; (RM400.00 x 24 = RM9,600.00) Mahkamah berpendapat bahawa jumlah RM400.00 sebulan bagi tempoh 24 bulan wajar diberikan bagi tuntutan ini. Jumlah RM400.00 sebulan dikira setelah mengambil kira gaji Plaintif sebanyak RM1,150.00 sebulan dan ditolak dengan perbelanjaan petrol dan makan minum Plaintif semasa bekerja. Berdasarkan perkiraan dan alasan tersebut Mahkamah berpendapat awad bagi tuntutan ini adalah suatu awad yang sesuia dan munsabah dan sama sekali tidak terlalu lumayan dan tinggi.” THE COURT’S FINDING [18] I will start of by saying that the Plaintiff’s counsel did not attend this hearing due to his mistaken belief on the date of hearing before this Court. Based on Order 55 rule 10 (2) of the Rules of Court 2012, where the appellant appears but the respondent fails to appear either in person or by a solicitor, the appeal shall proceed in the absence of such respondent. I do not see any reason to adjourn the hearing as both counsels had submitted their written submissions and I have read them prior to the hearing of this appeal. [19] Reverting to the facts and evidence of this case, it is the Plaintiff who brought this suit for a road accident case and the Defendant appealed on 13 the award, only for loss of earnings and loss of future earnings. 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 No. 02-78- 10/2014. 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. [20] The heart of the matter involves damages and 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 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. [21] 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 [2016] 1 PIR [16]; [2016] 2 CLJ 885 where YA Abdull Hamid Embong FCJ (as he then was), had occasion to say, 14 “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.” Loss of Earnings [22] Claims for loss of earnings had been extensively discussed in may great authorities 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 that, loss of earning is 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. [23] Based on the evidence of the medical certificates from Hospital Ampang where Plaintiff was hospitalized and was treated (pages 60-82 and pages 160-161 of Appeal Record) after the accident since 12.7.2013 until 11.5.2015, this Court finds that the medical certificates were never challenged by the Defendant’s counsel (pages 8 and 107 of Second Supplementary Appeal Record where the medical certificates by Government hospital were agreed). I viewed that the medical certificates 15 were issued for the purpose of informing or stating that the Plaintiff is on medical leave, unfit to attend work due to the accident. [24] Upon careful perusal of the factual evidence, based on the notes of evidence of SP1 (Second Supplementary Appeal Record), whom testified as representative of Meor Bakery, is one of the shareholders of Meor Bakery (page 20 of the Second Supplementary Appeal Record), and as partners with his own sister and brother-in-law. It was testified that the company Meor Bakery was in operation since 2011 but the premise licensed exhibited due to moving premise was from 2012 until 2014 (page 19 of Second Supplementary Appeal Record). SP1 testified that the Plaintiff was employed since 2012 (page 16 of Second Supplementary Appeal Record). SP2 admitted the mistake on the date of employment which should have been 31 March 2014 as the date of ceased operation of Meor Bakery (pages 21-22 of Second Supplementary Appeal Record). [25] I viewed that it is the duty of the Court to evaluate the facts and the evidence before arriving at a decision whether to allow or dismiss a claim for damages for loss. I am also mindful that the trial judge had the opportunity to examine the demeanour of the witnesses in assessing the genuineness of their claims and testimony. Following the authority of Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19, Justice Gopal Sri Ram (as he then was) at page 33 had remarked that the trial judge must test the oral evidence of the witness against the evidence placed before him: 16 “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. …If there are contemporary documents, then he must test the oral evidence of a witness against these. …. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. …” [26] Therefore, based on the medical certificates of the Plaintiff and the testimony of SP1 and the Plaintiff’s, where Plaintiff verified that he worked as a driver and has to deliver the bread as early as 6am (page 77 and page 105 of the Second Supplementary Appeal Record), admitting that he was on probation, this Court viewed that, on the balance of probability, the Plaintiff was in employment at the time of the accident. [27] At the Sessions Court, both counsels submitted the proposed award for loss of earnings. The Session Judge found that the proposed award by Plaintiff’s counsel was excessive, whereas the Defendant’s proposed award based on RM260 per month after deducting meals and transport petrol, is way too low. Considering the Session Judge’s decision based on the rate at RM400.00 per month, based on salary of RM1,150.00, multiplied with the 24 months period of medical leave, I viewed that the Session Judge’s award for loss of earnings at RM9,600.00 is reasonable. 17 Loss of Earning Capacity [28] Having found the Plaintiff worked prior to the accident, based on the cases Ngooi Ku Siong (supra) and Sumarni (supra), there are elements to be proven if the claimant cannot go back to work completely. The Plaintiff is 21 years of age and I viewed that for him to decide that he will not work in the future is too early to be determined and thus would fall under the category of speculation. In order to determine that he will have a diminished earning capacity, it must be based on evidence. This Court holds the view that there is evidence that the Plaintiff will be able to work and should be able to find employment. This is corroborated by the latest specialist report which is by the Defendant’s specialist report of 20.1.2015 (page 92-96 of Appeal Record) and specialist letter of 4 February 2015 (page 99 of Appeal Record), which in the latter, stated, “….I have stated my opinion that the fractures have healed and he should be started on walking without crutches. At this point in time I believe he is still on medical leave from his attending doctor but there is no reason why he should not be able to go back to his previous occupation and all other physical activities in the next 3-4 months.” [29] Although the Plaintiff contended that he was still in pain and could not at the time of trial resume work, it does not give a blanket conclusion that he is unable to work completely. I hold the view that based on the latest specialist report of 20.1.2015 and 4.2.2015, to which the Session Judge may have inadvertently overlooked, I conclude that there is no real and substantial risk of diminished earning capacity in the Plaintiff’s future. 18 [30] In relation to the case referred of Abdul Azizi Ahmad (supra), I find that, as correctly pointed out by the Defendant’s counsel, the High Court in that case allowed the appeal “only to the extent of substituting the award for loss of future earnings with an award of earning capacity in the sum of RM40,000.00.” and therefore I viewed that case should be distinguished from the current case. [31] In light of the above reasons, I partially allow the appeal, that is the award for loss of earnings of RM9,600.00 is retained and the award for loss of earning capacity is dismissed. The appeal deposit be refunded to the Defendant. Dated: 30 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 19 COUNSEL FOR THE APPELLANT/DEFENDANT T. ARCHANA DEVI Tetuan Viknes Ratna & Co Advocates and Solicitors 1-5-10, Tingkat 5, Blok C, Jalan 1/50, Diamond Square, Off Jalan Gombak, 53100 Kuala Lumpur. [Ref: SO/KL/L/P/2934/13] Tel: 03-4025 2461 Fax: 03-4025 4460 COUNSEL FOR THE RESPONDENT/PLAINTIFF PREMJIT SINGH Tetuan Sabarudin Othman & Ho Advocates & Solicitors No. 12 Jalan Yap Kwan Seng 50450 Kuala Lumpur [Ref: VRC/1335/3/041/ACC/14/a]
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