A.Aidip Bin A.Zaidi v Zarif Zahiruddin Bin Zali (TA-12B-14-11/2024)

ZARIF ZAHIRUDDIN BIN ZALI (No. K/P: 990210-11-6657)

ZAITON BINTI ISMAIL (No. K/P: 680916-03-5054) … RESPONDENTS In the Matter of the Sessions Court at Kemaman In the State of Terengganu Darul Iman, Malaysia

ZARIF ZAHIRUDDIN BIN ZALI (No. K/P: 990210-11-6657)

ZAITON BINTI ISMAIL S/N MtRbadSyPEaro853gfS3tQ (No. K/P: 680916-03-5054) … PLAINTIFFS AND A. AIDIP BIN A. ZAIDI (NRIC No.: 001015-06-0159) …DEFENDANT GROUNDS OF JUDGMENT

This appeal arises from the decision of the learned Sessions Court Judge (“SCJ”) delivered on 3 November 2024 concerning quantum of damages awarded to the Respondents following a road traffic accident. The parties had agreed upon liability at a ratio of 90% against the Appellant (“Defendant”) and 10% against the Respondents (“Plaintiffs”). Both the Defendant's appeal and the Plaintiffs' cross-appeal challenge specific aspects of the quantum assessment.

The Defendant seeks to reduce various awards for general and special damages, contending that the Sessions Court made awards that are manifestly excessive and inconsistent with established legal principles and comparable authorities. The Plaintiffs, through their cross-appeal, seek enhancement of the award for scarring and inclusion of damages for alleged spinal injury which the learned SCJ had dismissed.

Having carefully considered the written submissions from both parties, examined the extensive record of appeal including medical reports and expert testimony, and analyzed the authorities cited, this Court now delivers its decision.

The First Plaintiff, Zarif Zahiruddin Bin Zali, was involved in a road traffic accident on 1 August 2020 while riding motorcycle TBY

The accident occurred when his motorcycle collided with motorcycle JTJ 4356 ridden by the Defendant. At the time of the accident, the First Plaintiff was only 21 years old, a young man whose promising future was significantly impacted by the injuries sustained.

The First Plaintiff suffered a fracture of the distal right clavicle with coraco-acromio-clavicular joint disruption, which became S/N MtRbadSyPEaro853gfS3tQ complicated by multiple episodes of wound dehiscence. The initial surgical intervention on 19 August 2020 involved open reduction and locking plate fixation of the right clavicle. However, the wound healing process became severely complicated. On 24 August 2020, just days after the first physiotherapy session, wound dehiscence was noted. This necessitated a second surgical procedure on 23 September 2020 for wound debridement and secondary suturing.

The complications continued unabated. On 21 November 2020, the First Plaintiff presented with redness over the right shoulder wound, requiring a third surgical intervention on 25 November 2020 for wound debridement and removal of the implant. Even after implant removal, wound breakdown occurred again, necessitating admission from 30 November 2020 to 8 December 2020 for wound management and dressing. The First Plaintiff thus endured three separate surgical procedures and multiple hospital admissions over a period of approximately four months.

The long-term consequences have been significant and permanent. Medical evidence establishes that the First Plaintiff suffers from a malunited fracture of the lateral third of the right clavicle, limited range of motion of the right shoulder joint described as moderate in severity, hypersensitive scarring measuring 10-11 centimeters in length, and chronic neuropathic pain requiring long-term medication. His ability to perform heavy S/N MtRbadSyPEaro853gfS3tQ work or strenuous activities involving the right upper limb has been permanently compromised.

Liability was agreed between the parties at 90% against the Defendant and 10% contributory negligence on the part of the Plaintiffs. The dispute before this Court concerns solely the quantum of damages assessed by the learned SCJ.

The learned SCJ, after hearing evidence from medical experts and examining the First Plaintiff in court, awarded the following damages on a 100% liability basis:

General Damages:

Abrasions: RM10,000.00;

(ii) Fractured right radial head and right ulna joint dislocation with limited ROM: RM70,000.00;

(iii) Scars: RM20,000.00;

Special Damages:

Mobile phone: RM1,699.00;

(ii) JPJ, police and medical reports: RM620.00; S/N MtRbadSyPEaro853gfS3tQ

(iii) Specialist reports: RM5,090.00;

(iv) Orthotics report: RM3,000.00;

Various medical expenses: RM4,341.70;

(vi) Pregabalin neuropathic pain tablets: RM44,096.00;

(vii) Nutritious food and medicines: RM15,003.00;

(viii) Physiotherapy: RM1,500.00;

(ix) Shoulder brace: RM135,000.00;

Repair to vehicle (Second Plaintiff): RM840.00.

The Defendant challenges six specific items from these awards, while the Plaintiffs seek enhancement of the scarring award and inclusion of RM100,000.00 for spinal injury.

The following issues arise for determination in this appeal:

Whether the award of RM70,000.00 for fractured right clavicle with complications is excessive and should be reduced;

(ii) Whether the award of RM10,000.00 for abrasions is manifestly excessive; S/N MtRbadSyPEaro853gfS3tQ

(iii) Whether the award of RM20,000.00 for scarring should be maintained, reduced, or enhanced as sought in the cross-appeal;

(iv) Whether the award of RM135,000.00 for a shoulder brace is justified by the medical evidence;

Whether the award of RM44,096.00 for lifelong Pregabalin medication is supported by evidence;

(vi) Whether the award of RM15,003.00 for nutritious food, medicines, and laser therapy is warranted; and

(vii) Whether the cross-appeal for RM100,000.00 for spinal injury should be allowed following issues arise for determination: APPLICABLE LEGAL PRINCIPLES

Before addressing the specific contentions, it is essential to establish the legal framework governing appellate intervention in quantum assessments. The principles are well-settled but bear repetition given their fundamental importance.

The seminal authority remains the Federal Court decision in United Plywood and Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ 237 (FC), where Gill FJ articulated the general principle that an appellate court can only interfere with an assessment if it is considered so inordinately low or so inordinately high as to make the court exclaim "Good gracious, is that the sum which has been awarded - that sum 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.

This principle was affirmed and elaborated in Rasidin bin Partojo v Frederick Kiai [1976] 2 MLJ 214 (FC), where the Federal Court held that on an appeal against damages awarded, the appellant must convince the appellate court that the learned trial judge had acted on a wrong principle of law, had misapprehended the facts, or had for other reasons made a wholly erroneous estimate of the damage suffered.

In Tan Kuan Yau v Suhindrimani [1985] CLJ Rep 323 (FC), the Federal Court emphasized that what is required is for the appellate court to consider whether, in light of the circumstances of the case, there is an erroneous estimate of the amount of damage either because there was an omission to consider relevant materials or because irrelevant considerations were admitted for purposes of assessment.

In Abdul Waffiy bin Wahubbi & Anor v A K Nazaruddin bin Ahmad [2017] MLJU 761 (HC), Nantha Balan J (as his Lordship then was) observed that it is axiomatic and imperative that when awarding damages for pain and suffering for personal injuries, the court must endeavor 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.

However, the learned judge properly noted that the Compendium is not a statutory code but only a guideline which does not fetter the court's discretion, and that the court is, subject to exceptional factual circumstances, at liberty to depart from the Compendium, though it would take compelling and extenuating facts supported by medical evidence to persuade a court to do so.

The governing principle when awarding general damages, as stated in Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292 (FC) per Raja Azlan Shah CJ (Malaya) (as His Lordship then was), is to compensate the injured person for pain and suffering and loss of amenities. The award should not be a reward and less still a punishment. The compensation must be fair, adequate, and not excessive, serving to give reparation for the wrongful act and S/N MtRbadSyPEaro853gfS3tQ its natural and direct consequences insofar as money can compensate.

With these principles firmly in mind, this Court now turns to examine each contested item.

Defendant’s Contentions

Learned counsel for the Defendant advances several grounds challenging the quantum assessed by the learned SCJ. Counsel submits that the learned SCJ was swayed more by sympathy for the First Plaintiff's plight than by objective assessment of the medical evidence and comparable authorities. Counsel argues that several awards are manifestly excessive and inconsistent with the established range in the Compendium and recent comparable cases.

Specifically, regarding the award of RM70,000.00 for the clavicle fracture, the counsel for the defendant contends there has been confusion about the actual injury suffered. Counsel points out that in their submissions before the Sessions Court, they argued S/N MtRbadSyPEaro853gfS3tQ against an award for "fractured right radial head (radius) and right ulna joint dislocation with limited ROM", when in fact the First Plaintiff never suffered this injury. The actual injury was a fractured distal right clavicle. Counsel suggests this confusion undermines the entire assessment.

Counsel further submits that comparable cases involving malunited clavicle fractures with shortening attract awards in the range of RM28,000.00 to RM35,000.00. Cases cited include Rameshbabu a/l Narayanan v Tan Soon Bee [2022] 12 PIR [8] 108 (Sess Ct) (RM28,000.00 for malunited comminuted fracture of left clavicle with 1.52cm shortening) and Rugayah bt Mamat v Xavier a/l Thamboo [2022] 1 PIR [9] 111 (Sess Ct) (RM28,000.00 for malunited fracture midshaft of left clavicle with 1cm permanent shortening, deformity and reduced range of motion).

Counsel argues that while the principles in cases such as Zamri Md Som & Anor v Nurul Fitriyaton Idawiyah Nahrawi [2002] 1 CLJ 309 (HC) allow for consideration of inflation and economic changes, these principles relate to overlapping of damages rather than justifying awards substantially beyond the established range for similar injuries.

Regarding the shoulder brace costing RM135,000.00, the learned counsel for the Defendant submits this award is wholly unjustified. Counsel points to evidence that the First Plaintiff admitted he never S/N MtRbadSyPEaro853gfS3tQ used a shoulder brace in the five years since the accident and has been conducting his daily life normally without one. The most recent medical report from Hospital Kemaman dated 9 February 2023 states that the patient is able to perform range of motion of the right shoulder and does not recommend use of a shoulder brace. The Defendant’s orthopedic expert, Dr. Vivek Ajit Singh, testified that there is no indication for use of a shoulder brace as the shoulder is stable, the fracture has united, and the AC joint is intact. Shoulder braces are indicated for shoulder instability or during the healing process of a fracture, neither of which applies to the First Plaintiff’s current condition.

Concerning the Pregabalin medication awarded at RM44,096.00 for alleged lifelong use, counsel contends there is no evidence the First Plaintiff has been taking this medication since the accident. The Defendant’s expert recommended use for only 6 to 12 months, which at RM8 per day would total RM2,920.00 for one year. Counsel argues that speculative future medication over 53 years without evidence of actual need or usage is unjustified.

For the award of RM15,003.00 for nutritious food, medicines, and laser therapy, counsel submits this is unsupported by medical necessity. The latest Hospital Kemaman report shows the First Plaintiff can perform full range of motion, contrary to the Plaintiffs' plastic surgery expert's recommendations for intervention. The Defendant's expert opined that surgical intervention would not S/N MtRbadSyPEaro853gfS3tQ improve the outcome significantly as the scar is permanent, mature, soft and supple.

On the general damages for abrasions (RM10,000.00) and scarring (RM20,000.00), counsel submits these awards are manifestly high compared to recent authorities. For multiple abrasion wounds, recent cases award RM4,000.00 to RM5,000.00. For extensive scarring, recent cases such as Muniandie a/l Krisnan v Tan Kian Koon [2022] 1 PIR [7] 105 (Sess Ct) awarded RM10,000.00.

Counsel for the Defendant concludes that the learned SCJ, despite acknowledging that comparable cases awarded RM28,000.00 to RM35,000.00 for similar clavicle injuries, proceeded to award RM70,000.00 based primarily on sympathy after observing the First Plaintiff’s limited shoulder movement in court, rather than on objective medical evidence and established legal principles.

(ii) Plaintiffs’ Contentions

Learned counsel for the Plaintiffs robustly defend the awards made by the learned SCJ and advance compelling arguments why this Court should not interfere with the assessment. Counsel submits that the learned SCJ properly considered all evidence, S/N MtRbadSyPEaro853gfS3tQ applied correct legal principles, and importantly, had the advantage of observing the First Plaintiff personally during trial when he demonstrated his severe limitations.

Counsel emphasize a critical point that the Defendant has fundamentally misidentified the injury. Counsel points out that throughout the proceedings below, the Defendant argued against an award for "fractured right radial head (radius) and right ulna joint dislocation with limited ROM" when the First Plaintiff never suffered this injury. This confusion was specifically noted by the learned SCJ in her grounds of judgment. The actual injury suffered was a fractured distal right clavicle with coraco-acromio-clavicular joint disruption, complicated by multiple episodes of wound dehiscence.

Counsel submits that the nature and severity of the First Plaintiff’s injury places it in a different category from the simple malunited fractures cited by the Defendant. The medical evidence from Exhibit P-3 (detailed Hospital Kemaman report) documents the extraordinary complications: three separate surgical procedures, multiple episodes of wound dehiscence requiring repeated admissions, removal of implant due to infection, hypersensitive scarring, and permanent functional impairment. This is not a straightforward malunited fracture that healed without incident.

Counsel relies heavily on the learned SCJ’s factual findings based on personal observation. At pages 24-25 of the Supplementary Record of Appeal, the learned judge recorded: "Mahkamah ini akur dengan dapatan kes diatas namun dalam hal ini pihak-pihak tidak memanggil pakar tersebut dan bersandarkan kepada laporan pakar sahaja namun Mahkamah ini cenderung kepada pandangan pakar Plaintif dengan mengambil kira peluang dan ruang mahkamah ini melihat kepada keadaan Plaintif yang mana sewaktu diminta mengangkat sumpah menggunakan tangan kanan, Plaintif tidak mampu mengangkat tangan dan hanya mengangkat tangan sehingga ke paras dada sahaja yang mana itu adalah keadaan terkini Plaintif.”

Similarly, at page 28 of the Supplementary Record of Appeal, the learned judge stated: "…Mahkamah ini atas kesempatan melihat sendiri keadaan pada hari bicara sewaktu SP3 memberi keterangan, Mahkamah ini agak gusar untuk menerima secara terus pendapat pakar Defendan. Melihat betapa sukarnya hidup anak muda yang sepatutnya cerah masa depan namun disuramkan dengan kecelakaan yang berlaku menyebabkan sebahagian besar kegunaan tangan kanannya.”

Counsel argues these are findings of fact based on direct observation which an appellate court should be slow to disturb. It is argued that the learned SCJ saw firsthand the severe functional impairment suffered by this young man and properly took this into account in her assessment.

Regarding the shoulder brace, Counsel submits that the First Plaintiff's orthopedic specialist, Dr. Mohd Nasiruddin Johari, in his testimony at pages 67-70 of the Supplementary Record of Appeal, explained in detail why the shoulder brace is necessary. The doctor testified that the need for the shoulder brace arises from the condition of the First Plaintiff’s shoulder itself, particularly the scarring adhered to the clavicle bone causing severe pain, the surrounding soft tissue scarring, weakness of the muscles, and limited movement. The First Plaintiff requires the shoulder brace when performing activities, when walking, and even when sleeping because any contact causes pain that disturbs his sleep.

Counsel points out that even the Defendant's expert, Dr. Vivek Ajit Singh, conceded at page 101 of the Supplementary Record of Appeal that the First Plaintiff has not fully recovered yet and that a different orthopedic specialist could have a different opinion on the usage of a shoulder brace. The doctor also confirmed at pages 100, 102, and 108 of the Supplementary Record of Appeal that the First Plaintiff has limitations on doing strenuous and overhead activities and carrying things with the upper right limb, which supports the need for assistance.

Counsel explains that the First Plaintiff has not purchased the shoulder brace precisely because he cannot afford it due to its high cost of RM135,000.00, and stated he will purchase it when he receives compensation after the case concludes. It is therefore S/N MtRbadSyPEaro853gfS3tQ argued that this is entirely reasonable and does not indicate lack of need.

Concerning Pregabalin, counsel rely on Dr. Mohd Nasiruddin Johari's evidence at pages 68-69 of the Supplementary Record of Appeal, where he explained that Pregabalin is a special medication for controlling pain originating from nerves, called neuropathic pain. The doctor testified that the First Plaintiff requires this medication to reduce the pain he experiences. When asked how long the medication is needed, the doctor stated: "Keperluan beliau untuk ubat ini pada purata pada penapat saya sekali atau dua kali seminggu … tetapi adalah untuk sepanjang hayat”.

Counsel calculated the award based on RM8 per capsule, taken twice weekly (RM16 per week), for 52 weeks per year (RM832 per year), over 53 years (the First Plaintiff's remaining life expectancy from age 21 to 74 years), totaling RM44,096.00. Counsel submits this is reasonable compensation for lifelong medication necessitated by the Defendant's negligence.

Counsel elaborate that the learned SCJ specifically addressed this issue at page 22 of the Supplementary Record of Appeal, noting that both experts agreed the First Plaintiff requires Pregabalin for neuropathic pain, differing only on duration. The Defendant’s expert did not explain in his report why the First Plaintiff would S/N MtRbadSyPEaro853gfS3tQ require Pregabalin for only 6 to 12 months. Since there is no evidence that the neuropathic pain will disappear or heal completely, the First Plaintiff will suffer this pain for life, justifying the award.

For the nutritious food and medicines totaling RM15,003.00, learned counsel for the Plaintiffs explain this comprises RM3.00 for medication from Kemaman Wang Pharmacy (Exhibit P-29) and RM15,000.00 for intralesional injection of triamcinolone and laser therapy. The plastic surgery expert, Dr. Yap Chung Mui, recommended six sessions of this treatment for the severe scarring at RM2,500.00 per session, totaling RM15,000.00. This is not reconstructive surgery as mischaracterized by the Defendant, but rather treatment to improve the appearance and reduce the itchiness of the keloid scarring, which has an 80% response rate.

On the cross-appeal for enhanced scarring award, counsel submits that RM20,000.00 is too low given the nature of the scarring. The medical evidence describes an ugly, flat, pigmented, hypersensitive, itchy keloid surgical scar measuring 11 centimeters in length with width ranging from 1-2 centimeters and maximum thickness of 0.5 centimeters. The scar is adhered to the underlying bone and severely tender on palpation. Photographs in the record at pages 152-164 and 175-188 document the extensive and disfiguring nature of the scarring on this young man's shoulder.

Counsel cites Tay Mook Seng & Anor v Entulu anak Anil & Anor [2014] 2 PIR [121] 897 (Sess Ct) (RM30,000.00 for multiple scars), Muhammad bin Hassan v Lam Ngit Choi & Anor [2017] 1 PIR [40] 324 (Sess Ct) (RM35,000.00 for multiple scars), and Simon Raj a/l Thevadas Anbalagan v Haikal Akmal b Salihin [2022] 1 PIR [34] 467 (Sess Ct) (RM30,000.00 for multiple scars). Applying the principles for inflation and economic changes, counsel submits RM40,000.00 is appropriate for the severe, permanent, and disfiguring scarring suffered by the First Plaintiff.

Regarding the cross-appeal for spinal injury, counsel submits that the MRI findings documented in Dr. Mohd Nasiruddin Johari's report (Exhibit P-8) at pages 146-149 of the Record of Appeal show desiccation of C5/6, disc herniation of C3/4, C4/5, C5/6 and C6/7, and circumferential disc protrusion of L4/5 and L5/S1 with bilateral lateral recesses and spinal stenosis of L4/5. The doctor testified at pages 69-70 of the Supplementary Record of Appeal that he decided to examine the spine because the level of pain in that area was quite strong or severe compared to the original injury of the fractured clavicle, and several injuries were found in the spine area, especially in the cervical spine region. Although not critical, it could be caused by the injury that occurred during the accident, and the position of the cervical spine is close to the shoulder area.

Counsel cites Theeban Vengadesh a/l Govintarau v Shanmugam a/l Adiyapan & 5 Ors [2015] 2 PIR [14] 134 (Sess Ct) (RM80,000.00 for burst fracture of L1 vertebra with neurological deficit and post-surgery complications with infection) and Guo Feng Ting v Ta Yang Agricode Sdn Bhd [2015] 2 PIR [27] 241 (Sess Ct) (RM80,000.00 for fracture dislocation of L4 vertebra). Considering these authorities and applying inflationary principles, counsel submits RM100,000.00 is reasonable for the spinal injuries causing pain and permanent disability requiring Pregabalin medication.

Learned counsel for the Plaintiffs concludes by submitting that the learned SCJ properly applied all relevant legal principles, carefully considered all medical evidence, and made factual findings based on personal observation of the First Plaintiff's condition. It is therefore argued that there is no basis for appellate interference, and the awards should be maintained. Counsel further argues that the cross-appeal should be allowed to enhance the scarring award and include compensation for spinal injury.

Having carefully considered the submissions of both parties, examined the extensive medical evidence, and analyzed the S/N MtRbadSyPEaro853gfS3tQ authorities cited, this Court makes the following findings on each contested item.

Fractured Distal Right Clavicle - RM70,000.00

This item requires particularly careful analysis given the confusion that has permeated the proceedings regarding the actual injury suffered. The Court notes that throughout the Defendant's submissions before the Sessions Court arguments were advanced regarding "fractured right radial head (radius) and right ulna joint dislocation with limited ROM." This was specifically noted by the learned SCJ in the second paragraph at page 31 of the Supplementary Record of Appeal.

The Court must state unequivocally: the First Plaintiff never suffered a fractured right radial head or right ulna joint dislocation. The actual injury, as clearly documented in Exhibits P-1, P-2, P-3, P-7 and P-8, was a fractured distal right clavicle with coraco-acromio-clavicular joint disruption, complicated by multiple episodes of wound dehiscence.

This Court must therefore approach the assessment by examining the true nature and extent of the First Plaintiff's injury. The medical evidence establishes the following chronology and complications:

On 1 August 2020, the First Plaintiff sustained a closed fracture of the lateral third of the right clavicle with coraco-acromio-clavicular joint disruption. Physical examination showed swelling, tenderness over bony palpation of the clavicle, with limited abduction, adduction, flexion and extension of the right shoulder. This is evidenced in Exhibit P-1 at pages 79-80 of the Record of Appeal.

The initial surgical intervention on 19 August 2020 involved open reduction and locking plate fixation of the right clavicle. However, as documented in Exhibit P-3 (the detailed Hospital Kemaman report at pages 191-193 of the Record of Appeal), the healing process became severely complicated. On 14 September 2020, minimal wound dehiscence was noted over the right shoulder. Significantly, this wound dehiscence started after the first session of physiotherapy on 24 August 2020.

By 22 September 2020, wound breakdown had occurred, necessitating a second surgical procedure on 23 September 2020 for wound debridement and secondary suturing. The wound was reviewed on 12 October 2020, 27 October 2020, and 10 November

On 21st November 2020, the First Plaintiff complained of redness over the right shoulder wound. A third surgical intervention was required on 25 November 2020 for wound debridement and removal of implant. Even after implant removal, wound breakdown occurred again from 30 November 2020, S/N MtRbadSyPEaro853gfS3tQ requiring admission until 8 December 2020 for wound management and dressing. Wound reviews were conducted on 22 December 2020 and 2 February 2021.

On 27 July 2021, the First Plaintiff complained of hypersensitive scar. The follow-up examination on 29 January 2023 revealed a well-healed hypertrophic scar measuring 10 centimeters in length and 1.5 to 2 centimeters in width, noted to be hypersensitive compared to surrounding skin. X-ray showed united fracture with acceptable alignment. However, the progress notes indicate hypersensitive scar and pain upon heavy lifting at the right shoulder, with these complications causing discomfort while using his right upper limb and affecting his living.

The current permanent condition, as documented in Exhibit P-7 (Dr. Mohd Nasiruddin Johari's report at pages 81-83 of the Record of Appeal), includes: malunited fracture lateral third of right clavicle (moderate), limited range of motion of right shoulder joint (moderate), an ugly flat pigmented scar overlying right clavicle 11 centimeters by 3 centimeters adhered to the underlying bone and severely tender on palpation. The doctor opined that the First Plaintiff's ability to do any heavy works or strenuous activities involving his right upper limb will be limited permanently.

This Court must now consider whether the award of RM70,000.00 for this injury falls within the permissible range or constitutes a S/N MtRbadSyPEaro853gfS3tQ wholly erroneous estimate. The Defendant has cited several authorities for simple malunited clavicle fractures: Rameshbabu a/l Narayanan v Tan Soon Bee (supra) awarded RM28,000.00 for malunited comminuted fracture of left clavicle with 1.52cm shortening; Rugayah bt Mamat v Xavier a/l Thamboo (supra) awarded RM28,000.00 for malunited fracture midshaft of left clavicle with 1cm permanent shortening, deformity and reduced range of motion; and Radzali bin Mat Bidin & Anor v Wakil Bagi Harta Pusaka Si Mati Mohd Said bin Hosnar [2020] 2 PIR [51] 533 (Mag Ct) awarded RM35,000.00 for closed fracture of the right clavicle.

However, this Court finds that the First Plaintiff’s injury is materially different and more severe than the injuries in the cases cited by the Defendant. Those cases involved straightforward fractures that healed, albeit with malunion or shortening. The First Plaintiff's case involves not merely a malunited fracture, but a fracture complicated by: (i) coraco-acromio-clavicular joint disruption; (ii) multiple episodes of wound dehiscence requiring three separate surgical procedures over four months; (iii) infection necessitating removal of the implant; (iv) extensive hypersensitive scarring; (v) moderate limitation of range of motion; and (vi) permanent inability to perform heavy work or strenuous activities with the right upper limb.

The distinction is critical. The cases cited by the Defendant concerned uncomplicated malunion. The First Plaintiff endured a prolonged and traumatic healing process with repeated surgical interventions, infections, and ultimately a more compromised functional outcome. This is not a case where the fracture healed smoothly but with some shortening; it is a case where the healing process itself became a source of severe additional suffering and permanent impairment.

Nevertheless, this Court must also consider whether RM70,000.00 represents such an excessive departure from the established range that it constitutes a wholly erroneous estimate. The authorities establish that for uncomplicated malunited clavicle fractures with shortening and reduced range of motion, the current range is RM28,000.00 to RM35,000.00. Even accounting for the multiple complications suffered by the First Plaintiff, an award of RM70,000.00 - exactly double the highest comparable award - strikes this Court as excessive.

This Court has given careful consideration to the principles enunciated in Zamri Md Som & Anor v Nurul Fitriyaton Idawiyah Nahrawi [2002] 1 CLJ 309 (HC), Chu Kim Sing & Anor v Abd Razak Amin [1999] 4 CLJ 449 (HC), and Raji Transport Sdn Bhd & Anor v Idayu Zulkafli [2004] 5 CLJ 479 (HC) regarding inflation and economic changes. However, these principles cannot justify an award so far removed from the S/N MtRbadSyPEaro853gfS3tQ established range for comparable injuries that it loses all moorings to the authorities.

This Court acknowledges and gives due weight to the learned SCJ’s observations of the First Plaintiff during trial, particularly her finding that when asked to lift his right hand, the First Plaintiff could only raise it to chest level. These are valuable findings of fact by a judge who had the advantage of seeing the First Plaintiff’s condition firsthand. However, as stated in Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend) v Kerajaan Malaysia & Ors [2016] 2 CLJ 885 (FC), the court should not be motivated purely by sympathy and must award fair compensation based on cogent evidence, not speculation.

Balancing all these considerations - the severity of the complications, the multiple surgical procedures, the permanent functional impairment, the inflation since the cited authorities (most from 2020-2022), and the need to maintain consistency with comparable awards - this Court concludes that an appropriate award for this injury is RM40,000.00. This represents a reduction from the Sessions Court's award of RM70,000.00, but properly reflects the additional complications and severity beyond a simple malunited fracture, while maintaining reasonable consistency with the established range.

(ii) Abrasions - RM10,000.00 S/N MtRbadSyPEaro853gfS3tQ

The medical evidence in Exhibit P-1 at page 80 of the Record of Appeal describes "abrasion wound over lateral side 3x3 cm." The Defendant submits that RM10,000.00 is manifestly excessive for this injury, citing recent authorities where awards for multiple abrasion wounds ranged from RM4,000.00 to RM7,000.00.

The Plaintiffs cited Abdul Razak bin Bazheer Ahamed & Anor v Ng Kuang Yew & Anor [2017] 1 PIR [59] 500 (Sess Ct) where RM7,000.00 was awarded for "3cm x 5cm and 3cm x 4cm abrasion wounds over bilateral elbow and swollen and tender right elbow", and Papathi v Ahmad Alkiff Hafizi bin Abd Wahab [2018] 2 PIR [30] 289 (Sess Ct) where RM10,000.00 was awarded for "abrasion wounds over right forearm, right flank, right iliac fossa, right shin and left knee."

The Defendant cited more recent authorities: Aini binti Abdullah v Nathan a/l Athimoolam [2023] 2 PIR [31] 349 (HC) where RM5,000.00 was awarded for "multiple deep abrasion wounds over the left abdomen, leg, forearm and hand, and laceration wound over the dorsum of the left little finger"; Eswaran a/l P Nagalingam v Hew Heng Yi & Anor [2023] 1 PIR [2] 3 (Sess Ct) where RM5,000.00 was awarded for "multiple abrasion wounds over the right upper and lower limbs (3cm × 3cm abrasion wounds over the midthigh and leg and 4cm × 3cm large superficial abrasion wound)"; and Ramasamy a/l Kuppusamy v Sukhandar S/N MtRbadSyPEaro853gfS3tQ Singh a/l Hari Singh & Anor [2023] 1 PIR [26] 262 (Sess Ct) where RM4,000.00 was awarded for "multiple abrasions."

This Court finds merit in the Defendant's submission. The First Plaintiff suffered a single 3cm x 3cm abrasion wound. While any injury is regrettable, the award must be proportionate to the injury and consistent with the discernible trend. The recent authorities from 2023 consistently award RM4,000.00 to RM5,000.00 for multiple abrasion wounds, which are objectively more extensive than a single 3cm x 3cm abrasion. An award of RM10,000.00 for a single, relatively small abrasion is out of line with current trends and must be considered excessive. This Court reduces the award to RM5,000.00.

(iii) Scarring - RM20,000.00 and Cross-Appeal

This item is contested by both parties. The Defendant seeks to reduce the award of RM20,000.00, while the Plaintiffs in their cross-appeal seek to enhance it to RM40,000.00.

The medical evidence regarding the scarring must be carefully examined. The most recent report from Hospital Kemaman dated 9 February 2023 (Exhibit P-3 at page 192 of the Record of Appeal) describes "a well healed hypertrophic scar measuring 10cm in length and 1.5cm to 2cm in width approximately" which is "noted hypersensitive in comparison with surrounding skin." Dr. Mohd S/N MtRbadSyPEaro853gfS3tQ Nasiruddin Johari's reports (Exhibits P-7 and P-8 at pages 82 and 145 of the Record of Appeal) describe "an ugly flat pigmented scar overlying right clavicle 11cm by 3cm, seemed adhered to the underlying bone. Severely tender on palpation."

The plastic surgery expert, Dr. Yap Chung Mui (Exhibit P-35 at page 173 of the Record of Appeal), described "a long patch of ugly pigmented itchy keloid (severe from excessive abnormal scarring) - surgical scarring on the front of the right shoulder measuring 11cm in length with a width ranging from 1cm to 2cm, and with maximum thickness of 0.5cm." The photographs in evidence at pages 152-164 and 175-188 of the Record of Appeal document the visible nature of this scarring.

The Defendant cited cases where awards for extensive or multiple scars ranged from RM8,000.00 to RM10,000.00: Muniandie a/l Krisnan v Tan Kian Koon (supra) (RM10,000.00 for extensive scarring); Satishkumar a/l Punusamy v Ahmad Naimullah bin Rozliat [2022] 2 PIR [36] 370 (Sess Ct) (RM8,000.00 for multiple hyperpigmented scars); and Mohd Ridzuan bin Che Omar v Boo Siow Lean & Anor [2022] 2 PIR [32] 341 (Sess Ct) (RM8,000.00 for multiple scars).

The Plaintiffs cited cases with higher awards: Tay Mook Seng & Anor v Entulu anak Anil & Anor (supra) (RM30,000.00 for multiple scars); Muhammad bin Hassan v Lam Ngit Choi & Anor S/N MtRbadSyPEaro853gfS3tQ (supra) (RM35,000.00 for multiple scars); and Simon Raj a/l Thevadas Anbalagan v Haikal Akmal b Salihin (supra) (RM30,000.00 for multiple scars).

This Court notes that in Lim Wen Seong lwn Yageswaran k Nagathevan [2013] 1 LNS 1166 (HC), the court emphasized that when multiple medical reports are submitted, the court should give consideration to the most recent report as it reflects the current condition after the healing process has taken time to progress. The most recent independent report from Hospital Kemaman describes the scar as "well healed" though hypersensitive.

However, this Court must also consider the objective characteristics of the scarring: it is 10 to 11 centimeters in length,

1.5 to 2 centimeters in width, ugly in appearance, pigmented, hypersensitive, itchy, keloid in nature, and adhered to the underlying bone causing tenderness. For a 21-year-old young man, such visible scarring on the shoulder represents a permanent disfigurement that will affect him throughout his life.

Comparing the authorities cited, this Court finds that the more recent cases from 2022 tend toward lower awards (RM8,000.00 to RM10,000.00) while cases from 2014-2017 awarded higher sums (RM30,000.00 to RM35,000.00). The case of Simon Raj from 2022 awarded RM30,000.00 for multiple scars, suggesting that where S/N MtRbadSyPEaro853gfS3tQ the scarring is particularly extensive or severe, awards at the higher end remain appropriate even in recent years.

Taking into account the nature, extent, location and permanent character of the scarring, balanced against the need for consistency with recent awards, this Court finds that the Sessions Court's award of RM20,000.00 falls at the lower end of what would be appropriate. However, the Plaintiffs' sought enhancement to RM40,000.00 would be excessive. A moderate increase is warranted. This Court enhances the award to RM25,000.00, thereby allowing the cross-appeal in part on this item.

(iv) Shoulder Brace - RM135,000.00

This is perhaps the most contentious item in the appeal, with the Defendant mounting a sustained challenge to what it characterizes as an award based on sympathy rather than medical necessity.

The evidence regarding the shoulder brace must be examined comprehensively. The Plaintiffs’ orthopedic expert, Dr. Mohd Nasiruddin Johari, recommended use of a stabilizing shoulder brace in his report (Exhibit P-7 at page 83 of the Record of Appeal). In his testimony at pages 67-70 of the Supplementary Record of Appeal, the doctor explained that the need for the shoulder brace arises from the condition of the First Plaintiff's shoulder, particularly: (i) scarring that adheres to the clavicle bone causing S/N MtRbadSyPEaro853gfS3tQ severe pain; (ii) scarring of surrounding soft tissue; (iii) weakness of muscles; (iv) limited movement; and (v) pain from any contact with objects. The doctor testified the First Plaintiff needs the shoulder brace when performing activities, when walking, and even when sleeping because contact causes pain that disturbs his sleep.

The orthotic assessment report by Mr. Santosh Kumar Prasad (Exhibit P-4 at pages 129-143 of the Record of Appeal) recommended a specialized shoulder brace costing

In contrast, the Defendant’s expert, Dr. Vivek Ajit Singh, testified at page 60 of the Record of Appeal that there is no indication for use of a shoulder brace as "the shoulder is stable and the fracture has united. A shoulder brace is used during the healing process of the fracture or when there is shoulder instability. In this case, the fracture has united, and the shoulder is stable, and the AC joint is intact."

The Defendant points to several critical facts: (i) the First Plaintiff admitted he has never used a shoulder brace in the five years since the accident; (ii) the First Plaintiff has been conducting his daily life and working normally without a shoulder brace; (iii) the most recent Hospital Kemaman report states the patient is able to perform range of motion over the right shoulder and does not S/N MtRbadSyPEaro853gfS3tQ recommend a shoulder brace; (iv) the First Plaintiff is left-hand dominant, reducing the impact of right shoulder limitations; and (v) documents describing indications for shoulder braces (at page 213 of the Record of Appeal) show they are indicated for shoulder instability and soft tissue strains/ruptures, not for the First Plaintiff's condition.

The First Plaintiff’s explanation for not having used a shoulder brace - that he could not afford it and will purchase it when he receives compensation - while understandable from a financial perspective, does not address the medical question of whether it is actually necessary. Five years is a substantial period. If the shoulder brace were truly essential for daily activities, walking, and sleeping as suggested, one would expect the First Plaintiff would have obtained at least a basic supportive device, even if not the specialized model costing RM135,000.00.

This Court notes that even the Defendant's expert conceded that "a different orthopedic specialist could have a different opinion on the usage of a shoulder brace" (page 101 of the Supplementary Record of Appeal). This acknowledgment of legitimate differences in clinical opinion among specialists is important. However, where experts differ, the court must examine the entirety of the evidence to determine which opinion is more consistent with the objective facts.

The objective facts here are compelling: (i) the most recent independent medical report from Hospital Kemaman, which has no partisan interest, makes no recommendation for a shoulder brace; (ii) the Defendant's expert, an experienced orthopedic surgeon, sees no indication for it; (iii) the First Plaintiff has functioned for five years without one; (iv) the fracture has united and the shoulder is stable; and (v) there is no evidence of shoulder instability, which is the primary indication for such a device.

The learned SCJ stated at page 28 of the Supplementary Record of Appeal that she was hesitant to accept directly the opinion of the Defendant's expert after seeing how the First Plaintiff struggled to lift his right hand during trial. While this Court respects the learned judge's observations, the inability to achieve full range of motion due to scarring, pain, and muscle weakness does not necessarily indicate a need for a shoulder brace costing RM135,000.00. The medical evidence suggests the limitations are due to the malunited fracture, adhesions, and scarring - conditions that a shoulder brace cannot remedy.

Furthermore, this Court is guided by the principle articulated in Inas Faiqah Mohd Helmi (supra) that damages serve as compensation, not reward, and the court should not descend into speculation. The evaluation of evidence of future need must be undertaken on the balance of probabilities, and future S/N MtRbadSyPEaro853gfS3tQ contingencies must be shown to be substantial and not speculative.

On balance, this Court finds that the award of RM135,000.00 for a shoulder brace is not supported by cogent medical evidence. The weight of medical opinion, including the most recent independent report, does not establish that a shoulder brace is medically necessary for the First Plaintiff's current condition. This Court disallows this claim in its entirety.

Pregabalin Medication - RM44,096.00

The First Plaintiff claims RM44,096.00 for Pregabalin neuropathic pain medication calculated as RM8 per capsule, taken twice weekly, for 52 weeks per year, over 53 years (from age 21 to average life expectancy of 74 years).

The Plaintiffs' expert, Dr. Mohd Nasiruddin Johari, recommended in his report (Exhibit P-8 at page 147 of the Record of Appeal) that the First Plaintiff "needs to take medication called pregabalin 75mg at night to help reduce the neuropathic pain." In his testimony at pages 68-69 of the Supplementary Record of Appeal, when asked how long the medication is needed, he explained that the medication is needed once or twice a week on average, and is a lifelong necessity.

The Defendant’s expert, Dr. Vivek Ajit Singh, opined in his report at page 209 of the Record of Appeal that the First Plaintiff "would benefit from pregabalin to reduce neuropathic pain caused by the AC joint injury for 6 months to 1 year."

The Defendant argues that there is no evidence the First Plaintiff has been taking this medication since the accident, the Hospital Kemaman report mentions only oral and intravenous antibiotics and analgesia without reference to Pregabalin, and therefore an award for speculative future medication over 53 years is unjustified.

Both experts agree the First Plaintiff suffers from neuropathic pain and would benefit from Pregabalin. They differ only on duration. The critical question is: which opinion is more consistent with the medical evidence and established on the balance of probabilities?

This Court notes that neither expert provided detailed explanation for their respective recommendations regarding duration. The Defendant’s expert did not explain why the neuropathic pain would resolve after 6-12 months when the underlying conditions (malunited fracture, adhesions, limited range of motion) are permanent. The Plaintiffs' expert recommended lifelong use but based this on the nature of the pain and underlying condition rather than on evidence that the First Plaintiff has consistently required this medication.

The learned SCJ at page 22 of the Supplementary Record of Appeal reasoned that since there is no evidence the neuropathic pain will disappear or heal completely, the First Plaintiff will suffer this pain throughout his life. This reasoning has some merit, as permanent physical conditions often generate chronic pain.

However, this Court must also consider the principle in Jitweer Singh Ojagar Singh v PP [2017] 2 CLJ 561 (CA) that when there is conflicting expert opinion, a judge must test it against the background of all other evidence available, including direct evidence and overall circumstances. The version more consistent with these ought to be accepted as more trustworthy and reliable.

The absence of any evidence that the First Plaintiff has been taking Pregabalin regularly (or at all) in the more than four years since the accident is significant. The latest Hospital Kemaman report does not mention ongoing Pregabalin use. The First Plaintiff's own evidence does not establish a pattern of Pregabalin use. While he may not have been able to afford it initially, if the neuropathic pain were truly severe and ongoing, one would expect some evidence of attempts to obtain and use this medication, particularly given its relatively modest cost of RM8 per capsule taken only 1-2 times weekly.

This Court finds itself in a difficult position. On one hand, neuropathic pain associated with nerve damage can be chronic and long-lasting. On the other hand, an award for medication over 53 years based purely on expert recommendation, without any evidence of actual use or ongoing need, ventures into the realm of speculation.

A middle path is warranted. This Court accepts that the First Plaintiff likely requires Pregabalin for pain management in the shorter term, but finds insufficient evidence to support an award for lifelong use. This Court allows the claim for one year at RM8 per day (taken daily rather than twice weekly, as the Plaintiffs' calculation appears to have erred on the conservative side), totaling RM2,920.00. If the First Plaintiff's pain continues beyond this period, he may take such other legal recourse as may be available to him.

(vi) Nutritious Food and Medicines - RM15,003.00

This item comprises RM3.00 for medication from Kemaman Wang Pharmacy (Exhibit P-29) and RM15,000.00 for intralesional injection of triamcinolone and laser therapy (six sessions at RM2,500.00 per session) recommended by Dr. Yap Chung Mui in her report (Exhibit P-35 at page 174 of the Record of Appeal).

The Defendant challenges this award on multiple grounds: first, that the Hospital Kemaman report shows the First Plaintiff can perform full range of motion, contradicting the need for additional treatment; second, that the Defendant's expert opined that surgical intervention would not improve the outcome significantly as the scar is permanent, mature, soft and supple; and third, that there is insufficient evidence establishing the medical necessity of this treatment.

The Plaintiffs argue that the recommended treatment is not surgical intervention but rather specialized injection and laser therapy to improve the appearance and reduce the itchiness of the keloid scarring, with an 80% response rate.

This Court must first address a mischaracterization in the Defendant's submissions. The recommended treatment is not "plastic and reconstructive surgery" but rather intralesional injection of triamcinolone combined with laser therapy. These are non-surgical treatments specifically designed to reduce keloid scarring, improve appearance, and reduce symptoms such as itchiness and pain.

However, the critical issue is whether this treatment is sufficiently supported by medical evidence as being medically necessary for the First Plaintiff's condition. The medical evidence reveals significant contradictions regarding the need for this intervention.

The most recent medical report from Hospital Kemaman dated 9 February 2023 (Exhibit P-3 at pages 191-193) describes the First Plaintiff as being able to perform range of motion over right shoulder, with the limitation being the hypersensitive scar and pain upon heavy lifting. Importantly, this independent hospital report, which has no partisan interest, makes no recommendation for laser therapy or injections. The report describes the scar as "well healed" albeit hypersensitive.

The Defendant’s expert, Dr. Kuladeva Ratnam, opined at page 201 of the Record of Appeal that "The scar is permanent, mature, soft and supple. Surgical intervention may not improve the outcome significantly." While the Plaintiffs correctly point out that the recommended treatment is non-surgical, the principle remains relevant: if intervention would not significantly improve the outcome, the expenditure cannot be justified as medically necessary.

Furthermore, this Court must draw a careful distinction between treatment that is medically necessary and treatment that is primarily cosmetic or for enhancement purposes. The keloid scarring, while permanent and cosmetically undesirable, has been described as "mature" and "well healed." The proposed injections and laser therapy are aimed at improving appearance and reducing symptoms such as itchiness, but these fall more into the S/N MtRbadSyPEaro853gfS3tQ category of ameliorative or cosmetic treatment rather than medical necessity.

Significantly, there is no evidence that the First Plaintiff has sought or undertaken any such treatment in the four years since the accident, despite the recommendations. There is no evidence of ongoing attempts to access this treatment or of medical urgency requiring it. The absence of any demonstrated pattern of seeking this treatment undermines the claim that it is medically necessary.

The learned SCJ at pages 24-25 of the Supplementary Record of Appeal noted her observation of the First Plaintiff's condition during trial and accepted the need for this treatment. However, as stated in Inas Faiqah Mohd Helmi (supra), the court must not be motivated purely by sympathy and must award compensation based on cogent evidence establishing medical necessity, not speculation about possible future treatments.

This Court recognizes that the keloid scarring causes discomfort including hypersensitivity and pain on palpation. However, these symptoms have already been compensated through the enhanced award for scarring itself (increased from RM20,000.00 to RM25,000.00). To award additional compensation for treatment of the same scarring would risk double compensation for the same injury.

Moreover, the evidence regarding the nutritious food and medicines (beyond the RM3.00 pharmacy receipt) is insufficiently particularized. The claim for RM15,000.00 for laser therapy is based solely on the plastic surgery expert's recommendation without evidence that such treatment has been or will be undertaken, that it is medically necessary rather than optional, or that the cost is reasonable and necessary.

The Defendant’s expert evidence, supported by the independent Hospital Kemaman report, establishes that intervention would not significantly improve the outcome. The scar is mature and stable. While the recommended treatment might provide some cosmetic improvement and symptomatic relief, this does not establish medical necessity sufficient to justify an award of damages

In light of these considerations, this Court finds that the First Plaintiff has failed to establish, on cogent medical evidence, that the claimed expenditure is medically necessary. The claim appears to be speculative and ventures into the realm of optional cosmetic enhancement rather than necessary medical treatment. This Court therefore disallows this claim in its entirety.

(vii) Cross-Appeal - Spinal Injury RM100,000.00

The Plaintiffs' cross-appeal seeks RM100,000.00 for alleged spinal injury consisting of desiccation of C5/6, disc herniation of S/N MtRbadSyPEaro853gfS3tQ C3/4, C4/5, C5/6 and C6/7, and circumferential disc protrusion of L4/5 and L5/S1 with bilateral lateral recesses and spinal stenosis of L4/5.

These findings appear in Dr. Mohd Nasiruddin Johari's report (Exhibit P-8) dated 28 April 2022, based on MRI examination. The doctor's radiology report at pages 148-149 of the Record of Appeal documents these spinal findings. In his testimony at pages 69-70 of the Supplementary Record of Appeal, the doctor explained that he decided to examine the spine because the level of pain in that area was quite strong or severe compared to the original clavicle injury, and the position of the cervical spine is close to the shoulder area.

The Defendant points to several critical deficiencies in this claim:

the MRI findings first appeared in a report dated 28 April 2022, nearly two years after the accident; (ii) the initial medical reports from Hospital Kemaman immediately after the accident make no mention of spinal injury; (iii) the Defendant's expert examined the cervical spine and found it to be normal, with radiographs showing a normal cervical spine; (iv) the Defendant's expert found normal alignment of the spine, normal gait, able to squat, full range of motion of lumbar spine, full range of motion of cervical spine, and no neurological deficits in the lower limbs; and (v) the Plaintiffs' own expert conceded there were no photographs from the radiograph record showing the cervical spine injury.

The learned SCJ dismissed this claim, stating at page 35 of the Supplementary Record of Appeal: "Mahkamah ini setelah meneliti Ikatan D dan Ikatan H, menimbang dengan sewajarnya Seterus meneliti laporan awalan daripada hospital Kemaman mendapati tidak wujud kecederaan spine tulang belakang tersebut. Justeru Mahkamah menolak item ini”

This Court agrees with the learned SCJ's assessment. The fundamental problem with this claim is the absence of any contemporaneous evidence of spinal injury. The initial medical reports and examinations from Hospital Kemaman, which were conducted immediately after the accident when any traumatic spinal injury would have been apparent, make no mention whatsoever of spinal injury. No spinal X-rays were taken at that time. No complaints of back or neck pain were recorded.

The MRI findings emerged nearly two years post-accident. While Dr. Mohd Nasiruddin Johari opined that the disc changes could be caused by the accident, the doctor also acknowledged in his report that disc degeneration is a common age-related change. The critical question is causation: were these spinal findings caused by the accident, or are they pre-existing or age-related changes that S/N MtRbadSyPEaro853gfS3tQ happen to have been discovered during investigation of the First Plaintiff's shoulder pain?

The burden of proof rests on the First Plaintiff to establish, on the balance of probabilities, that the spinal findings are causally related to the accident. The absence of any contemporaneous evidence of spinal trauma, the normal initial examinations, the delayed emergence of the findings two years later, and the Defendant’s expert's assessment of a normal cervical spine all point away from causation.

Furthermore, as the Defendant correctly points out, the Plaintiffs' own expert conceded there were no radiographic images showing the cervical spine injury. The MRI report describes degenerative changes and disc findings, but these must be distinguished from traumatic injury directly caused by the accident.

In Inas Faiqah Mohd Helmi (supra), the court emphasized that damages must be based on cogent evidence, not speculation, and future contingencies must be proven to be substantial rather than speculative. The same principle applies to proving causation of alleged injuries.

This Court finds that the First Plaintiff has failed to establish, on the balance of probabilities, that the spinal findings documented in the MRI report were caused by the accident rather than S/N MtRbadSyPEaro853gfS3tQ representing pre-existing or age-related degenerative changes. The cross-appeal on this item is therefore dismissed.

After careful consideration of all submissions, evidence, and authorities, this Court makes the following orders:

General Damages (on 100% liability basis): Item Sessions Court Award High Court Award Fractured Distal Right Clavicle with Complications RM70,000.00 RM40,000.00 Abrasions RM10,000.00 RM5,000.00 Scarring RM20,000.00 RM25,000.00 Total General Damages RM100,000.00 RM70,000.00

Special Damages (on 100% liability basis): Item Sessions Court Award High Court Award Shoulder Brace RM135,000.00 RM0.00 Pregabalin RM44,096.00 RM2,920.00 Nutritious Food and Medicines RM15,003.00

All other items of special damages not challenged in this appeal remain as awarded by the Sessions Court.

After application of the agreed 90% contributory negligence:

General Damages Payable: RM63,000.00;

Special Damages to be recalculated accordingly by the Sessions Court based on the High Court's adjustments and the undisputed items.

The Defendant's Appeal is Allowed in Part.

The Plaintiffs' Cross-Appeal is Allowed in Part (enhancement of scarring award from RM20,000.00 to RM25,000.00) and Dismissed in Part (claim for spinal injury).

There shall be no order as to costs, given that both parties have succeeded in part and failed in part in their respective appeals. S/N MtRbadSyPEaro853gfS3tQ

This Court has carefully weighed the competing considerations in this matter. On one hand, there is the real and substantial suffering of a young man whose life trajectory has been permanently altered by this accident. The First Plaintiff endured multiple surgical procedures, prolonged healing complications, permanent functional impairment, and disfiguring scarring. The learned SCJ had the advantage of observing the First Plaintiff’s condition firsthand and was clearly moved by his circumstances.

On the other hand, the law requires that damages be assessed objectively, based on cogent evidence, and with consistency to established authorities. Awards must compensate fairly without being excessive, must be proportionate to the injuries sustained, and must not be based on sympathy or speculation.

This Court has endeavored to strike an appropriate balance. The Court has reduced certain awards where they exceeded the discernible trend in comparable cases, particularly the awards for the clavicle injury (from RM70,000.00 to RM40,000.00), abrasions (from RM10,000.00 to RM5,000.00), shoulder brace (from RM135,000.00 to nil), Pregabalin (from RM44,096.00 to RM2,920.00), and nutritious food/medicines (from RM15,003.00 to nil). The Court has enhanced the scarring award from RM20,000.00 to RM25,000.00, recognizing that the Sessions S/N MtRbadSyPEaro853gfS3tQ Court's award was at the lower end of what would be appropriate for such severe and permanent scarring on a young person. The cross-appeal for spinal injury is dismissed due to insufficient evidence of causation.

The final quantum, after these adjustments, represents fair and adequate compensation for the injuries proven to have been caused by the accident, while maintaining reasonable consistency with established legal principles and comparable authorities. This balance serves the interests of justice for both parties. Dated: 11th January 2026 Yusrin Faidz Bin Yusoff Judicial Commissioner High Court of Malaya Kuala Terengganu S/N MtRbadSyPEaro853gfS3tQ Counsel for the Plaintiff: Rajakumaran A/L Muthusamy Messrs Ram Yogan Sivam No. 1, Tingkat 2, Lorong 8/1D, Seksyen 8, 46050 Petaling Jaya, Selangor Darul Ehsan. Counsel for the Respondent: Harinder Singh A/L Kartar Singh Messrs. Ravi Moorthi Noriza Mala & Partners No. A-3, 1st Floor, Lorong Tun Ismail 10, Jalan Tun Ismail, 25000 Kuantan, Pahang Darul Makmur.

United Plywood and Sawmill Ltd v Lock Ngan Loi [1970] 2

Rasidin bin Partojo v Frederick Kiai [1976] 2 MLJ 214 (FC).

Tan Kuan Yau v Suhindrimani [1985] CLJ Rep 323 (FC).

Abdul Waffiy bin Wahubbi & Anor v A K Nazaruddin bin Ahmad [2017] MLJU 761 (HC).

Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292

Rameshbabu a/l Narayanan v Tan Soon Bee [2022] 12 PIR [8] 108 (Sess Ct).

Rugayah bt Mamat v Xavier a/l Thamboo [2022] 1 PIR [9] 111 (Sess Ct).

Zamri Md Som & Anor v Nurul Fitriyaton Idawiyah Nahrawi [2002] 1 CLJ 309 (HC).

Muniandie a/l Krisnan v Tan Kian Koon [2022] 1 PIR [7] 105 (Sess Ct).

Tay Mook Seng & Anor v Entulu anak Anil & Anor [2014] 2 PIR [121] 897 (Sess Ct).

Muhammad bin Hassan v Lam Ngit Choi & Anor [2017] 1 PIR [40] 324 (Sess Ct).

Simon Raj a/l Thevadas Anbalagan v Haikal Akmal b Salihin [2022] 1 PIR [34] 467 (Sess Ct).

Theeban Vengadesh a/l Govintarau v Shanmugam a/l Adiyapan & 5 Ors [2015] 2 PIR [14] 134 (Sess Ct).

Guo Feng Ting v Ta Yang Agricode Sdn Bhd [2015] 2 PIR [27] 241 (Sess Ct).

Radzali bin Mat Bidin & Anor v Wakil Bagi Harta Pusaka Si Mati Mohd Said bin Hosnar [2020] 2 PIR [51] 533 (Mag Ct).

Zamri Md Som & Anor v Nurul Fitriyaton Idawiyah Nahrawi [2002] 1 CLJ 309 (HC).

Chu Kim Sing & Anor v Abd Razak Amin [1999] 4 CLJ 449

Raji Transport Sdn Bhd & Anor v Idayu Zulkafli [2004] 5 CLJ

Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend) v Kerajaan Malaysia & Ors [2016] 2 CLJ 885

Abdul Razak bin Bazheer Ahamed & Anor v Ng Kuang Yew & Anor [2017] 1 PIR [59] 500 (Sess Ct).

Papathi v Ahmad Alkiff Hafizi bin Abd Wahab [2018] 2 PIR [30] 289 (Sess Ct).

Aini binti Abdullah v Nathan a/l Athimoolam [2023] 2 PIR [31]

Eswaran a/l P Nagalingam v Hew Heng Yi & Anor [2023] 1 PIR [2] 3 (Sess Ct).

Ramasamy a/l Kuppusamy v Sukhandar Singh a/l Hari Singh & Anor [2023] 1 PIR [26] 262 (Sess Ct).

Satishkumar a/l Punusamy v Ahmad Naimullah bin Rozliat [2022] 2 PIR [36] 370 (Sess Ct).

Mohd Ridzuan bin Che Omar v Boo Siow Lean & Anor [2022] 2 PIR [32] 341 (Sess Ct).

Lim Wen Seong lwn Yageswaran k Nagathevan [2013] 1 LNS

Jitweer Singh Ojagar Singh v PP [2017] 2 CLJ 561 (CA).