Ain Nabila Binti MD Yusof v Mazrina Hanim Binti Othman Basir (AB-12B-2-11/2023)

UMI SURAYA BINTI DZUERWAN … PERAYU-PERAYU …RESPONDEN Didengar bersama DALAM MAHKAMAH TINGGI MALAYA DI TAIPING DALAM NEGERI PERAK DARUL RIDZWAN, MALAYSIA RAYUAN SIVIL NO.: AB-12BNCVC-2-11/2023 …PERAYU

UMI SURAYA BINTI DZUERWAN …RESPONDEN-RESPONDEN (DI DALAM PERKARA MAHKAMAH SESYEN DI KUALA KANGSAR GUAMAN NO.: AG-B53KJ-4-12/2021) …PLAINTIF

UMI SURAYA BINTI DZUERWAN …DEFENDAN-DEFENDAN (DI DALAM PERKARA MAHKAMAH SESYEN DI KUALA KANGSAR GUAMAN NO.: AG-B53KJ-4-12/2021) …PLAINTIF

UMI SURAYA BINTI DZUERWAN …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT INTRODUCTION [1] The Appellants in this appeal were the Defendants in Civil Suit No. AG-B53KJ-4-12/2021 at the Sessions Court in Kuala Kangsar wherein on 20.10.2023, the Sessions Court Judge (SCJ) had found them to be 100% liable pursuant to the accident that happened on 19.7.2020 at 12.00pm between them and the Respondent (the Plaintiff in the suit) who was riding a motorcycle at KM 55 of Jalan Ipoh – Gerik near the Lawin traffic lights junction. [2] In Appeal No. AB-12BNCVC-2-11/2023, the Respondent filed a Notice of Appeal dated 31.10.2023 in regard to the quantum awarded and against the decision of the SCJ who ordered that the payment in the amount of RM505,000.00 for the purchase of a prosthetic limb for her to be paid to Lazcorp Holdings Sdn. Bhd. in accordance with its lifespan. The Appellants in their cross-appeal had filed a Notice of Appeal dated 8.12.2023 against an interest of 2.5% awarded by the SCJ for the future award comprising the purchase of the prosthetic limb for a period of 53. I will refer to Appeal No. 2-11/2023 as Appeal No. 1. Meanwhile, in Appeal No. AB-12BNCVC-12-11/2023, the Appellants filed a Notice of Appeal dated 2.11.2023 against liability only. Therefore, I will refer to Appeal No. 12-11/2023 as Appeal No. 2. And for ease of reference, the parties will be referred to as they were at the Sessions Court. [3] The appeals were heard before me on 7.8.2024 and my decision was delivered on 27.9.2024. The SCJ had produced a comprehensive grounds of judgment and I had agreed with most of her findings, except on one issue in regard to the SCJ’s knowledge of the area where the acciden happened, where she had “applied” it to this case. Nevertheless, my conclusion was similar to the SCJ’s conclusion and therefore, I did not interfere with the decision of the SCJ. For convenience, as the appeals arose from the same accident, I have prepared only 1 Grounds of Judgment for both appeals. FACTS OF THE CASE [4] The witnesses who testified at the trial before the SCJ were as follows: SP1 - Sjn Khaidzir bin Khalid, Investigating Officer SP2 - Tang Hui May, Plaintiff’s employer SP3 - Anis Natasha binti Md Yusof, Plaintiff’s sister SP4 - Ain Nabila binti Md Yusof, Plaintiff SP5 - Dr. Thaveethu Moses, Orthopedic specialist SP6 - Nadzirah binti Abdul Razak, Prosthetist and Orthotist SD1 – Haider Ali Khan, Prosthetist and Orthotist SD2 - Umi Suraya binti Zuerwan, Second Defendant SD3 - Akmar Faris bin Mohd Hisham, independent witness. [5] The Plaintiff was riding a motorcycle bearing registration number RX 6852 and the Second Defendant (D2) was driving the motorcar bearing registration number PJG 4985 on that fateful day where the First Defendant (D1) was the registered owner of the motorcar. The Plaintiff was 25 years’ old at the material time and lived in Seberang Perai Selatan. She worked as a full-time rider (food delivery) at Hungry BMBW for almost a year prior to the accident. The Plaintiff had been unemployed at the time of trial. D2 was 18 years and 9 months at that time and unemployed. [6] On 19.7.2020 at about noon, the Plaintiff arrived from Pulau Pinang and headed towards Kuala Kangsar after exiting the Kuala Kangsar Toll Plaza. She reached the Lawin traffic lights and it was green. The Plaintiff then followed another motorcycle in front of her and crossed the junction at a speed of 30 km/hour towards the right (Kuala Kangsar direction) when suddenly a car came straight from her right and crashed into her motorcycle. The impact of the crash caused the Plaintiff to be thrown off her motorcycle and she was flung a distance. The Plaintiff felt dizzy but she did not lose consciousness. She was sent to the Kuala Kangsar Hospital in an ambulance. The Plaintiff was admitted there and later transferred to Taiping Hospital as she suffered serious injuries and had to be on medical leave for 3 months. Among the multiple injuries sustained, unfortunately, one was a permanent injury wherein the Plaintiff’s right lower limb had to be amputated due to the accident. The Plaintiff lodged a police report on 18.9.2020, two months thereafter. [7] D2’s version of the accident was that she was traveling from Taman Talang (Kuala Kangsar) heading towards Taiping. As she reached KM 55 of Jalan Ipoh – Gerik, the traffic light on her side was green and therefore she proceeded to cross the junction. Out of a sudden, a motorcycle from the direction of Kuala Kangsar collided into the front right part of the motorcar. She lodged a police report about 1.5 hours later on the same day where she stated the direction she was going to as “... dari Taman Talang hendak ke Taiping.”. She had obtained her driving licence less than a year prior to the accident. [8] It was against these versions that the SCJ had to make a decision on who was liable for the accident. Obviously, the traffic light cannot be green at the same time (both litigant claimed it was green on her side). So who was not telling the truth in Court? EVALUATION AND FINDINGS OF THE COURT [9] There was a Preliminary Objection (Encl. 10) raised by the Plaintiff regarding the Defendants filing a Notis Rayuan Balas in respect of the interest of 2.5% awarded by the SCJ for the future award comprising the purchase of the prosthetic limb for thePlaintiff. It was the Plaintiff’s contention that the Defendants attempted to circumvent their failure to file a Notis Rayuan against the SCJ’s decision within the time frame allowed by the Rules of Court 2012 by filing the Notis Rayuan Balas instead. It was also contended that this issue was not raised in the Defendants’ pleadings. After hearing the parties’ submission on 7.5.2024, the Preliminary Objection was dismissed with no order as to costs as this issue could be ventilated at the substantive hearing of the appeal. Parties then prepared for the substantive hearing of the appeal. A. On the issue of liability [10] It is trite law that an appellate court would be slow to disturb the findings of the trial court unless it is convinced that there have been substantial misdirection of facts and law which merited appellate intervention. The appellate court will determine whether or not the trial court arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. It will examine the process of evaluation of the evidence by the trial court. A decision arrived at by a trial court without or insufficient judicial appreciation of the evidence may be set aside on appeal. This is consistent with the established “plainly wrong” test: Gan Yook Chin & Ors v Lee Ing Chin & Ors [2004] CLJ 309 (FC). Hence, regardless of any number of grounds raised in the Memorandum of Appeal, the duty of the appellate court in a civil appeal is to determine whether the appellant has proved his case on a balance of probabilities. [11] The trier of fact would have had the benefit and advantage of seeing and hearing the witnesses and the opportunity to assess their demeanour: Rasidin Bin Partojo v Frederick Kiai [1976] 2 MLJ 214. He or she would have had first-hand opportunity to evaluate and appraise the evidence of the witnesses. The appellate court would seldom interfere with the factual findings of the trial judge, and on demeanour of witnesses, unless it was “plainly wrong” in the sense that it could not reasonably be explained or justified and one which no reasonable judge could have reached: Tengku Dato Ibrahim Petra Tengku Indra Petra v Petra Perdana Berhad & Anor Appeal [2018] 2 CLJ 641. [12] The burden of proof lies on the Plaintiff to prove her case: Ng Chui Sia v. Maimon Bt Ali [1983] 1 MLJ 110. The court’s duty is to determine which version is more inherently probable based on available evidence: Noorianti bte Zainol Abidin & Ors v Tang Lei Nge [1990] 2 MLJ 242. [13] From the Memorandum of Appeal, I may summarise the appeal on liability (by the Defendants) to these 3 issues for the Court to decide as follows: i. directions of travel of the parties; ii. whether D2 encroached into path of the Plaintiff or vice versa; and iii. whether there was contributory negligence on the part of the Plaintiff. [14] I will address the more pertinent points of these appeals below, but before that just on one point that I mentioned earlier. have perused the Records of Appeal and grounds of judgment of the SCJ to determine whether she has made any error of fact or law such or judicial misappreciation of the facts such that this Court has to interfere in her decision. However, I did not find any serious error in the grounds of judgment of the SCJ. There was an irregularity though, but it my opinon, it did not occassion a miscarriage of justice on the part of the Defendants. This was in regard to paragraph 24 of the SCJ’s grounds of judgment which I have reproduced for ease of reference: “[24] Saya telah melihat sendiri kawasan persimpangan lampu isyarat ini kerana ia adalah laluan biasa saya dari rumah ke tempat kerja. Pemerhatian saya kawasan persimpangan lampu isyarat ini bukanlah kawasan yang luas. Jika kenderaan datang dari arah Plaza tol, kita akan dapat melihat dengan jelas kenderaan yang datang dari kanan. Turutan lampu isyarat bertukar hijau pula adalah seperti berikut:

Dari Gerik

Dari Kuala Kangsar

Dari plaza tolI [25] Ini bermaksud apabila lampu isyarat bertukar merah di laluan dari Kuala Kangsar barulah lampu isyarat bertukar hijau di laluan dari plaza tol. Laluan dari Kuala Kangsar adalah digunakan untuk kenderaan yang akan membelok ke kiri iaitu menghala ke Gerik. Laluan yang sepatutnya diikuti sekiranya hendak menghala ke Taiping adalah laluan bawah. Sekiranya terlepas atau tersilap laluan, kenderaan dari arah Kuala Kangsar hendaklah samada berpatah balik ke Kuala Kangsar atau masuk ke Ialuan Gerik dan membuat pusingan.”. [15] I have brought up this point when I delivered my decision earlier because it was also raised by the Defendants. The grounds of judgment of the SCJ was written in 2023 whereas the accident happened in 2020. The SCJ’s observation on the order of flow for the traffic lights may not be relevant given the effluxion of time and their order of flow (of the traffic lights) may well have changed. However, I was of the view that her final conclusion in finding that the Defendants (particularly the driver D2) were 100% liable was not flawed because there was enough evidence from the silent evidence that I had seen, and supported by the testimonies of the witnesses from both sides to enable me to come to the same conclusion. In the Privy Council case of Yahaya Bin Mohamad v Chin Tuan Nam [1975] 2 MLJ 117, it was held that when there is conflicting evidence, then the Court will have to rely on the other evidence i.e. silent evidence. [16] From my perusal of the Notes of Evidence and witness statements filed in court, it could be seen that the Plaintiff’s evidence was consistent throughout despite the lengthy cross-examination by the Defendants’ counsel. The Plaintiff was adamant that the traffic light on her side was green and which was why she had proceeded to cross the junction when suddenly the car driven by D2 hit the motorcycle on the right side. If we look at the photographs of the 2 vehicles (please refer to Encl. 9 at pages 647 and 648 of RR for Appeal No. 2), it could be seen that it was consistent with the Investigating Officer’s (SP1) testimony that the motorcycle’s handle had twisted to the left (refer to Encl. 6 at page 46 of RR for Appeal No. 2). This showed that the vehicle that hit the motorcycle was driven at a high speed and caused the handle of the motorcycle to twist to the left upon impact. The Plaintiff was thrown off a distance, due to the high velocity of the impact and possible landed at ‘D’ in the sketch plan where SP1 had marked it as bloodstains which he believed came from the Plaintiff. From his investigation, he concluded that the possible point of impact was at the point marked “B” in the sketch plan (refer to Encl. 9 at page 637 of RR for Appeal No. 2) marked as P3. He stated that there was no independent witness when he investigated the case. He also told the court that D2 had changed her story because her police report (page 636 of Encl. 9) stated her direction was from Taman Talang (Kuala Kangsar) towards Taiping. This police report was made very near after the accident. SP1’s investigation was not thorough as he did not send the vehicles for inspection or forensic investigation. [17] In the evidence of D2, she stated that she told the police that she was actually heading to Taiping from Taman Seroja (in the direction from Gerik) which was situated to the left of the sketch plan P3 (left to bottom) and not from the direction of Kuala Kangsar (top to bottom). This statement clearly departed from what she had reported in the police report Kuala Kangsar 1235/20. D2 also told the court that she did not mention any independent witness because she could not focus at that time. In her cross-examination, D2 admitted that she was with a few people in the car (friends) but none of them were called to corroborate her evidence in court. D2 denied that she was an incompetent driver (due to the fact that she had just obtained her driving licence and her young age). D2 also denied that she was speeding to beat the traffic light that was going to change to red. It was suggested to D2 that she need not have been on the ramp on that road if she was from Kuala Kangsar to Taiping (traffic can use the road below the ramp straight on to Taiping) as what she stated in the police report. D2 disagreed with counsel’s question. If it was true that D2 was traveling from the left to bottom and the motorcycle hit her car as she claimed in her version of events, in my opinion, the damages to the motorcycle would have been concentrated on the front part of the machine rather than “Handle bengkok, cover meter pecah, kerangka pemijak kaki sisi kanan belakang patah, ekzos patah”. The handle had twisted to the left according to SP1. The crush injury to the Plaintiff’s right leg was also consistent with the Plaintff’s version that D2’s vehicle hit her rather than the other way round. Therefore I agreed with the SCJ’s conclusion on the point of impact and that the Plaintiff’s version was more probable than D2’s version. [18] The police report lodged by D2 stated that the traffic light was green to support her contention that it was the motorcyclist who was speeding. However, her own documentary evidence contradicted her testimony in court and I can safely say that it had demolisher her defence. I could not accept her explanation and neither did the SCJ, i.e. that she panicked etc. In my view, it was highly probable that the mention of the green traffic light on D2’s side was a concoction but the direction where D2 came from was the truth. I refer to the case of Ong Cheng Wah & Anor v Supramaniam A/L Arjunan [2001] MLJU 291 where the High Court in Taiping held that: “This court find that the plaintiff's evidence in court was a complete deviation as to how the accident occurred when compared to his police report exhibit P4 and that his evidence in court is highly suspect and requires satisfactory explanation for this material contradictions before the court could have accepted his evidence in his favour. There is no doubt that his evidence in court was an afterthought attempt and to exculpate himself from being responsible for the accident. On this ground alone the learned Sessions Court Judge should have dismissed the plaintiff's claim…”. [19] I now turn to the evidence of a purported eyewitness who was called by D2 to support her version of how the accident occurred. D2 never mentioned about this independent witness in her police report nor in her witness statement filed in court (refer to the Notes of Evidence at page 307 of RR of Appeal No. 2). But in cross-examination, she agreed that the independent witness was an important witness to her claim that she did not cause the accident. In re-examination, D2 explained the inconsistency was because “Sewaktu tu, saya masih berumur 18 tahun. Selepas kejadian tu saya panik dan terus demam. Bila masuk ke dalam untuk berjumpa dan beri keterangan, saya menggeletar dan tidak dapat fokus dengan apa yang saya beri.”. [20] In Gunalan Ramachandran & Ors v PP [2006] 2 MLJ 197; [2006] 1 CLJ 857; [2006] 2 AMR 465 the Federal Court held: “What need to be considered is whether the discrepancies relate to material aspects of the case or otherwise. As stated in Sarkar on Evidence 15th edn. p. 112: Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence (Sidhan v. State of Kerala [1986] Cri LJ 470, 473 (Ker)). But discrepancies in the statements of witnesses on material points should not be lightly passed over, as they seriously affect the value of their testimony (Brij Lal v. Kunwar, 36 A 187:18 CWN 649: A 1914 PC 38). The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant as pects there of...” [21] The evidence of SD3 was that he was in a van traveling behind D2’s car. At that time, his father and brother were also in the vehicle. They were coming from Lubuk Merbau (from the direction of Gerik). On his role on 19.7.2020, SD3 stated the following: “Saya turun dan menenangkan mangsa kemalangan iaitu penunggang motorsikal dan dia meminta bantuan saya untuk menelefon ayahnya menggunakan telefon bimbit mangsa. ... Saya tidak membuat laporan polis kerana saya kesuntukan masa untuk pulang ke rumah kerana penat setelah berniaga di pasar pagi dan pedu membuat persiapan untuk pasar malam di kawasan rumah. ... Saya ada meminta Umi Suraya (Defendan Pertama) untuk tunggu di kawasan itu sehingga pihak polis sampai dan saya ada memberikan nombor telefon saya kepada Umi Suraya sekiranya ada perkara berbangkit di kemudian hari. [22] My assessment of SD3’s credibility was that he was not “independent” or “truthful” as he claimed to be. He was evasive and would not answer a simple question directly. The pertinent parts of his evidence in cross-examination are reproduced below for ease of reference as follows (page 322 of the Notes of Evidence): “ENH Ya, apa yang Encik cakap tadi? Ok sejujurnya, saya tidak tahu Taman Talang tu dekat bahagian mana. Saya tidak tahu. Encik, tadi Cik Umi sendiri telah bagi keterangan kata arah Taman Talang tu adalah di Kuala Kangsar. Versi Encik di Mahkamah, Encik bagi tahu hari ni, kenderaan Cik Umi, versi Encik kenderaan Cik Umi daripada kiri nak ke bawah. Ok. So kalau ikut versi Encik di Mahkamah dan versi Cik Umi, adalah terdapat dua percanggahan arah perjalanan. Encik setuju? Saya tak setuju. Saya tak setuju lah, saya tak setuju. Sebab saya … Kamu kata kamu nampak bagaimana kemalangan berlaku, tapi kamu tak buat report. Kamu setuju ke tak setuju? Tak setuju. Jadi saya katakan bahawa sebabkan kamu tak buat report, so kamu memang tak nampak lah bagaimana kemalangan berlaku? Saya nampak. Tapi kamu tak buat report. Kamu setuju? Tak setuju juga. Saya tak setuju. Dan saya katakan kepada kamu, kamu sebenarnya hadir pada hari ini ke Mahkamah, kamu bagi keterangan. Tapi tak ada satu dokumen pun yang boleh menyokong kamu, keterangan kamu di Mahkamah pada hari ini. Setuju. Saya setuju. ... Maksud saya, saya rujuk berdasarkan kepada repot, bukan di luar konteks repot. Rujuk kepada repot Umi Suraya, langsung tidak dinyatakan atau sebut ada saksi bebas dalam repot beliau. Encik setuju ke tak setuju? Saya tak setuju. ... Saya katakan kepada Encik, ikut keterangan Sarjan, pegawai penyiasat yang siasat kes ini juga, tak ada sebut pun ada saksi bebas dan memang saksi bebas tak wujud. Setuju dengan saya? Tak setuju. ... Saya katakan bahawa keterangan kamu yang mengatakan kamu telefon ayah Plaintif adalah tidak benar. Setuju? Tak setuju. Dan soalan ini tak pernah ditanya pun atau dibangkitkan oleh Plaintif semasa bagi keterangan sebelum ini. Kamu setuju? Tak, saya tak setuju. ... Dan setuju dengan saya bahawa Umi Suraya tak bagi nombor kamu kepada polis sebabkan saksi bebas itu tak wujud pun. Kamu setuju? Tak setuju. Kalau kata saksi bebas wujud, mesti dia akan bagi nombor kamu kepada pihak polis dan pihak polis akan hubungi kamu. Kamu setuju? Ulang sekali lagi. Kalau kata Umi Suraya bagi nombor kamu kepada pihak polis. Ok. Ok? Sudah tentu pihak polis akan hubungi kamu. Ok, setuju. Saya setuju.”. [Emphasis added] [23] The SCJ made the following observation in her grounds of judgment: [32] Selain itu, pihak Defendan juga mengemukakan saksi bebas iaitu SD3. Maklumat berkenaan saksi bebas SD3 ini hanya timbul pada saat saat akhir perbicaraan. Di dalam laporan polis Defendan Pertama tidak ada dinyatakan tentang saksi bebas ini. Semasa rakaman percakapan oleh pegawai penyiasat juga tidak dimaklumkan. Di dalam mana-mana kertas kausa yang difailkan oleh pihak defendan juga tidak timbul fakta berkenaan saksi bebas ini. Malah di dalam penyata saksi Defendan Pertama (PSD 2) dan juga semasa pemeriksaan utama oleh peguam Defendan juga tidak dimaklumkan tentang adanya saksi bebas ini. [33] Peguam Plaintif hanya mengetahui tentang saksi bebas ini semasa perbicaraan kes defendan. Apabila peguam defendan bertanya kepada Defendan Pertama kenapa tidak maklumkan tentang saksi bebas kepada pegawai penyiasat, jawapan Defendan pertama adalah kerana dia tidak boleh fokus pada masa itu kerana dia tidak sihat dan demam. ... [34] Daripada keterangan lisan saksi saksi yang telah mahkamah dengar, mahkamah juga berpeluang melihat sendiri demeanour saksi saksi. Pegawai Penyiasat adalah saksi yang berkecuali, beliau tidak mempunyai apa-apa kepentingan di dałam kes ini dan juga tidak mengenali Plaintif dan Defendan Pertama. Beliau menjalankan tanggungjawabnya sebagai pegawai penyiasat apabila ada laporan dibuat berkaitan sebuah kemalangan yang berlaku. Pegawai penyiasat melaporkan kepada mahkamah apa yang beliau saksikan di tempat kejadian, mengambil gambar kenderaan dan kawasan kemalangan yang terlibat untuk rujukan semua pihak di mahkamah. Pegawai penyiasat juga merakamkan keterangan pihak yang terlibat dan saksi lain sekiranya berkaitan. Mahkamah berpendapat pegawai penyiasat adalah saksi yang credible. Tidak ada apa-apa keterangan beliau yang menunjukkan beliau membuat siasatan yang tidak adil atau berpihak kepada mana-mana pihak. Cuma mahkamah berharap pegawai penyiasat sepatutnya. membuat siasatan yang lebih teliti dan mendalam dengan merakamkan kêterangan penumpang di dalam kereta Defendan Pertama kerana Defendan Pertama mengatakan beliau membawa penumpang. [35] Melihat pula kepada keterangan Plaintif, mahkamah juga mendapati tidak ada keraguan atau percanggahan yang melampau di dalam keterangan Plaintif dan keterangan pegawai penyiasat. Pegawai penyiasat juga mengesahkan bahawa keterangan Plaintif semasa rakaman percakapan adalah konsisten dengan laporan polis beliau. Mahkamah juga dapat menilai sendiri demeanour Plaintif semasa beliau memberi keterangan. Plaintif adalah pihak yang telah dilanggar dan mengalami kecederaan akibat kemalangan itu. Disebabkan beliau berhadapan dengan situasi itu sendiri maka Plaintif dapat memberi keterangan dengan yakin, kukuh dan tidak goyah walaupun apabila disoal balas oleh peguam defendan. Plaintif juga dapat menceritakan kronologi kejadian dengan baik dan apabila mahkamah meneliti keterangan senyap yang Iain, ia juga konsisten dengan keterangan Plaintif. Mahkamah juga tidak nampak bahawa beliau cuba mereka-reka cerita atau mengubah versi kemalangan supaya memihak kepada dirinya. Oleh itu mahkamah berpendapat Plaintif telah memberikan keterangan yang benar di Mahkamah. [36] Mahkamah ingin merujuk kepada prinsip yang dibincangkan di dalam kes Pannir Salvam a/l Sinnaiyah & Anor v Tan Chia Foo Ors [2021] 7 MLJ 384 yang mana YA Mahkamah Tinggi di dalam kes ini membincangkan berkenaan isu kredibiliti seseorang saksi: The credibility of SP1, SP2 and SD1 [93] It is trite law that, apart from applying the standard of proof required by law, a trier of fact, in order to arrive at a decision according to law must judicially appreciate the evidence led before him upon the issue called for resolution. A decision arrived in the absence of a judicial appreciation of evidence is liable to appellate correction. Judicial appreciation is concerned with the process of evaluating the evidence for the purpose of discovering where the truth lies in a particular case. It includes, but is not limited to, identifying the nature and quality of the evidence, assigning such weight to it as the trier of fact, deems appropriate, testing the credibility of oral evidence against contemporaneous documents as well as the probabilities of the case and assessing the demeanour of witnesses: per Gopal Sri Ram JCA (as he then was) in Boonsom Boonyanit v Adorna Properties Sdn Bhd [1997] 2 MLJ 62. [94] With regard to the credibility of witnesses, reference is made to s 146 of the Evidence Act which reads: Section 146 - Questions lawful in cross-examination When a witness may be cross-examfned, may, in addition to the questions hereinbefore refered to, be asked any questions which tend –

to test his accuracy, veracity or credibility;

to discover who he is and what is his position in life; or

to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. [95] Credibility concems the opportunities for a power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers: Kwang Boon Keong Peter v Public Prosecutor [1998] 2 SLR

[96] I also find instructive the words of Gillen J in Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB [2021] 7 MLJ 384 at 4094 which was & adopted in McAllister v Campbell [2014] NIQB 24: [12] Credibility of a witness embraces not only the concept of his truthfulness ie whether the evidence of the witness is to be believed but also the objective reliability of the withess ie his ability to observed or remember facts and events about which the witness is giving evidence. [13] In assessing credibility the court must pay attention to a number of factors which, inter alia, include the following: • The inherent probability or improbability of representations of fact • The presence of independent evidence tending to corroborate or undermine any given statement of fact • The presence of contemporaneous records • The demeanour of witnesses e.g does he equivocate in cross examination • The frailty of the population at large in accurately recollecting and describing events in the distant past. • Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication • Does the witness have a motive for misleading the court • Weigh up one witness against another ... [42] Mahkamah mengatakan bahawa sekiranya mahkamah dengan mudah menerima seseorang yang datang ke mahkamah dan mengaku sebagai saksi kejadian, tanpa dikemukakan sebarang bukti kewujudan mereka di situ, maka pihak-pihak yang berkepentingan akan mengambil kesempatan dan menjadikan keputusan ini satu ikutan dengan mengupah atau mencari seseorang sebagai saksi bagi tujuan untuk menang di dalam tuntutan mereka. Setiap tuntutan dan kenyataan yang dikemukakan di mahkamah hendaklah dibuktikan dan tidak boleh sewenang-wenangnya dibawa ke mahkamah. Dengan itu mahkamah dengan ini menolak keterangan saksi bebas yang dibawa oleh pihak defendan. Mahkamah juga memutuskan. Defendan Pertama bukanlah seorang saksi yang mempunyai credibility sebagai seorang yang memberi keterangan yang jujur disebabkan keterangan-keterangan yang tidak konsisten berkaitan kemalangan ini. [43] Dengan dapatan tersebut, keterangan berkenaan bagaimana kemalangan berlaku hanyalah dari keterangan Defendan Pertama sahaja. ...”. [Emphasis added] [24] The Court referred to the judgment of Gopal Sri Ram JCA (as His Lordship then was) in Lee Ing Chin v Gan Yook Chin [2003] 2 MLJ 97 where it was stated: “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. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. 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. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same.” [Emphasis added] [25] I am mindful of the principle abovementioned that a judge who makes findings 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. Nevertheless, in my assessment of the SCJ’s grounds of judgment, the SCJ had scrutinised all the relevant evidence, particularly the silent evidence, in arriving at her decision that D2 caused the accident to happen and was wholly to blame. There was no apportionment of liability to the Plaintiff as the SCJ found that she was not to be faulted for the accident. In my view, the SCJ did not rely solely on the demeanour of witnesses when she made the findings of facts in the case before the court. Therefore, I could not find any error made by the SCJ on this particular point of demeanour of witnesses. [26] What is important for the Court to determine when there are two versions of an accident is which party’s evidence is more probable: Mohd Yusof Bin Abdul Ghani v Tee Song Kee & Anor [1995] MLJU 344. In that case, reference was made to Ajaib Singh J., (as his Lordship then was) in Public Prosecutor v. Bhandulananda Jayatilake [1981] CLJ 43 where his Lordship spoke of the importance of telling the truth in a Court of law. There, his Lordship said this: " Witnesses giving evidence in Court must never underrate the importance of speaking the truth. A Court of Justice is the sanctuary of truth where serious issues of law and fact are heard and determined. The law prescribes that witnesses on oath must tell the truth, the whole truth and nothing but the truth. True testimony alone would assist the Court in arriving at a true verdict. It is most important therefore that people who appear as witnesses in Court should never deviate from the truth for otherwise they would be polluting the administration of justice and thus committing a serious wrong to the Court and to society. The obligation imposed on a witness to speak the truth under oath has the sanction of law. And very likely of religion as well. An oath which a witness takes in Court is a solemn declaration by which the witness may well be invoking the wrath and vengeance of God in addition to any punishment which may be inflicted on him under the laws of the land if he does not speak the truth. " B. On the issue of quantum [27] The civil suit was to claim for the injuries that the Plaintiff suffered as stated in the the medical report of the Emergency & Surgery Department of Kuala Kangsar Hospital (refer to page 652 of Encl. 9) and Taiping Hospital (refer to page 655 of Encl. 9). The diagnosis was “1. Close segmented fracture of right femur; 2. Mangled limb over right leg.”. The Plaintiff was amputated on the right leg below the knee. It was a permanent injury and she had lost the use of her right leg. The Court was also referred to the medical report of Dr T Moses from Orthopaedic Specialist Sdn. Bhd. (page 677 of Encl. 9) and a few quotations from prosthetist companies. [28] As can be seen in the medical reports, the injuries suffered were horrifying and the permanent loss of limb would have to be redressed. The Plaintiff wanted a bionic prosthetist, hoding on to the belief that it was the best option and she complained that the present prosthetist supplied by SOCSO was unsuitable as she sweated a lot at her knee and would become wet outside. The principle is to put the Plaintiff in the position as far as possible as if the injury never happened. The Plaintiff also has a duty to mitigate her losses. Hence, the claims were very important to enable the Plaintiff to be able to return to her normal life in some aspects at least if not all. [29] The SCJ awarded the Plaintiff general damages of RM135,000.00, special damages of RM583,157.00 including a Category 3 bionic prosthetist for a period of 53 years and interests of 5% and 2.5%, respectively. The Defendants disagreed that a future costs for the prosthetist should be given interest whereas the Plaintiff was unhappy that the bulk of the moneys for special damages, particularly the costs for the purchase of the bionoc prosthetist would be paid to the supplier. The Plaintiff’s concern was, understandably, in case something happened to the supplier company within the time span of 53 years. [30] it is trite that compensation must be fair, reasonable and adequate but not excessive: Yang Salbiah & Anor v Jamil Bin Harun [1981] 1 MLJ 292; Inas Faiqah Mohd Helmi (a child suing through her father and next friend: Mohd Helmi Abdul Aziz v Kerajaan Malaysia & Ors [2016] 2 CLJ 885; Wong Li Fatt William (an infant) v Haidawati Binti Boihen & Anor [1994] 2 MLJ 497. [31] In the case of Laksamana Realty sdn Bhd [2005] 4 CLJ 871, the court there referred to Tan Kuan Yau v Suhindrimani Angasamy [1985] 1 CLJ 429 where the Federal Court held: "The principle that could guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case, in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that either there was an omission on the part of the Judge to consider some relevant materials or he had admitted for purposes of assessment some irrelevant considerations. If the court is satisfied or convinced that the Judge has acted upon wrong principles of law then it is justified in reversing; indeed it is its duty to reverse the finding of the trial Judge." [Emphasis added] [32] I refer to a recent case in Civil Appeal No.: B-01(NCVC)(W)-556- 08/2022 in Kerajaan Malaysia v Nor Fazlin Zamani, where the Court of Appeal stated: [34] An appellate court will not interfere in the trial judge's exercise in an appeal on damages unless it is satisfied that the judge had erred in principle or had made a wholly erroneous estimate of the damage suffered. This principle was reiterated by the Court of Appeal in Tan Cheong Poh & Anor v. Teoh Ah Keow [1995] 3 MLJ 89 where VC George JCA (as he then was) delivering the judgment of the Court said as follows: “The court was advised that the amount being awarded to quadraplegic plaintiffs for pain and suffering and loss of amenities had gone up to some RM180,000 and on that basis, it was submitted that the instant plaintiff should have been awarded between RM140,000 and RM150,000. While we are prepared to say that the RM100,000 awarded under this head was perhaps on the low side, we do not think that it should have been anywhere near RM140,000. However, we also do not think that the RM100,000 was so manifestly low that this court should increase the amount. It is trite that the appellate court should not give preference to its own figure simply because they disagree with the figure arrived at by the trial judge; it will only interfere if it is satisfied that the judge has acted on a wrong principle of law or has for other reasons made a wholly erroneous estimate of the damage suffered - see Mallal's Supreme Court Practice (2nd Ed) para 57/1113. Applying that test in the instant appeal, in our judgment this court should not interfere with the trial judge's award of RM100,000 for pain and suffering and loss of amenities (emphasis added)”. [33] In Lechemanavasagar S Karuppiah v Dr Thomas Yau Pak Chenk & Anor [2008] 3 CLJ; [2008] 1 AMR 833 the court stated: “Memang tidak dapat dinafikan bahawa seseorang itu berhak untuk mendapatkan sesuatu yang pada asalnya pernah dinikmatinya, iaitu sepasang kaki yang sempurna dan paling kurang adalah yang terdekat kepada keadaan asal, iaitu dengan mendapatkan gantian kaki palsu.’ Namun pada masa yang sama bukan isu kos yang perlu dijadikan perbandingan. Apa yang sewajarnya adalah fungsi dan sifat/character kaki palsu yang hendak dibenarkan adalah bersesuaian dan padan dengan hal keadaan Plaintif.”. [34] The Plaintiff wanted an Endolite prosthetist that would cost RM1,335,175.00. On the correctness of the SCJ’s decision not to allow the Plaintiff’s claim for the more expensive Endolite bionic prosthetic leg, this Court agreed with her rationale and the following Court of Appeal case of Chua Kay Hock & Anor v Lee Hoon Poi [2022] 6 MLJ 88 where it was stated: “[40] In our considered view, it was not erroneous or baseless for the LJC to hold that if a bionic prosthesis were to be allowed together with loss of future earnings, it would unreasonably set a precedent for all plaintiffs in similar circumstances to claim for a bionic prosthesis instead of a medium, reasonably-priced hydraulic prosthesis leg. It would be fair for us to observe that the much more reasonably priced mechanical prosthesis had for generations been awarded as compensation for amputation cases. As highlighted by the respondent to us and taken into account by the LJC, the hydraulic leg is used widely in the public service/government sector and known to be popular in Malaysia over the years. More importantly, the sophisticated state of the art bionic leg is not widely used in the country and known to lack facilities for after-sales service or repair if it breaks down. Additionally, it is trite principle that a plaintiff seeking compensatory damages is required to mitigate his loss and is entitled only to reasonable compensation and not exorbitant awards save on grounds of necessity in exceptional circumstances when a reasonable alternative is wholly unavailable or inappropriate. There must be sufficient justification shown by the victim for the award of compensation for well above the trend of contemporary awards. … [46] Premised on the foregoing grounds, we would conclude that the appellant had failed to demonstrate to us that the LJC had failed to judicially appreciate the totality of the evidence or correctly apply the principles applicable to award to damages in negligence actions for personal injuries and related losses. In our considered view and judgment, the LJC had not arrived at a decision that was erroneous in principle or fact to warrant appellate interference in this instance as relevant considerations and factors had been taken into account in arriving at the said decision. [47] We, therefore, hold that this appeal is clearly devoid of merits, and baseless in law and fact. Accordingly, we dismiss this appeal and affirm the decision of the LJC. As the appellant was an accident victim who had suffered serious injuries, we exercised our discretion to order the parties to bear their own costs despite the appellant having lost this appeal.”. [35] Coming back to the present appeals, the SCJ in her grounds of judgment in paragraphs 45 onwards discussed the issue of quantum. Upon perusal of her grounds of judgment, I found that the SCJ had taken the correct approach in dealing with the issue of quantum and compensation as well as applied the right case laws and also guided by the 2018 Revised Compendium of Personal Injuries. The SCJ had also followed current trends as decided by other courts of coordinate jurisdiction and the superior courts and I see no reason to disturb her findings and reasons why she awarded such amounts. Therefore, this Court would not interfere on the amount of damages awarded and the SCJ’s decision to award her the Category 3 bionic prosthetist supplied by Lazcorp Holdings Sdn Bhd. [36] I refer particularly to paragraph 61, the SCJ gave her reasons for deciding that the moneys for the prosthetist was to be paid to the said supplier and not to the Plaintiff or her solicitors. The SCJ stated: [61] Peguam Defendan juga telah memohon agar wang untuk pembelian prosthesis dibayar terus kepada syarikat Lazcorp Holdings iaitu pakar prosthesis pilihan Defendan. Mahkamah telah bersetuju dan mahkamah perintahkan bahawa wang tersebut akan hanya digunakan bagi tujuan pembelian kaki palsu dan akan dibayar kepada syarikat Lazcorp Holdings Sdn Bhd mengikut keperluan lifespan. Mahkamah membuat keputusan ini kerana peguam Plaintif sendiri memohon gantirugi bagi pembelian kaki palsu atas alasan kaki palsu yang dibekalkan oleh pihak SOCSO secara percuma tidak sesuai untuk digunakan oleh Plaintif. Oleh itu pihak Plaintif perlu jujur dengan tindakan mereka dan membelanjakan wang yang diawardkan mengikut keperluan yang telah dipohon di mahkamah. Merujuk kepada kes Khairun Nizad Bin Daud v Juprin Paul [2018] MLJU 176, Mahkamah Tinggi di dalam kes tersebut telah telah memutuskan seperti berikut: “There is a high likelihood that the amount awarded to the Plaintiff for the purchase of a prosthesis may not be utilized for the purpose intended by the award; In that sense, the Court must remain vigilant as to what goes on in the running down practice so as not to invite, condone and engender abuse in the way of manipulating of claims, which js not what damages are for and-will be to the detriment of the industry as a whole. Once an award has been finalised, there is a weakness in the system in being able to monitor, contol or dictate whether the sum awarded will be directed to the purpose intended. Apart from the question of whether the Respondent would really use the award allowed for prosthesis to buy one costing so much. Again, as there does not appear to be any regulatory mechanism or any monitoring of compliance, there is no assurance that any award for prosthesis will be channelled specifically for that purpose and for the same type as per the quotation. The Appellants have canvassed the possibility of the award for prosthesis being deposited with Amanah Raya Berhad to be released to the Respondent only upon purchase. This was the mechanism seemingly allowed in another case. If an award had been made for purchase of the prosthesis as per quotations and invoices tendered in court, let the funds be for those purpose, and not to supplement other purposes. The award of damages in a personal injury case is to compensate the victim in the manner it is supposed to, and should not be a tactical manipulation of the system to squeeze as much out as possible.”. [37] The SCJ was being prudent but I allowed the Plaintiff’s appeal only to the extent that the RM505,000.00 was to be paid to the Plaintiff’s solicitors’ client account Lazcorp Holding Sdn Bhd. due to their concerns on the financial stability of the company and that the Plaintiff was an adult of sound mind. I may have decided differently if the SCJ had ordered the moneys to be paid into Amanah Raya Berhad on trust and to be taken out only for the purchase of the prosthetist at the appropriate time: Khairun Nizad’s Case (supra). [38] The Court has taken into consideration the Defendants’ submissions on their appeal against liability but did not agree with them. Instead the Court found that the SCJ’s decision was prudent, fair, reasonable and adequate to compensate the Plaintiff for her injuries, and to provide sufficient compensation for her losses and future expenses. In respect of the Defendants’ appeal on the interest of 2.5% awarded, the Court was referred to Murtadza Bin Mohamed Hassan v. Chong Swee Pian [1979] CLJU 57 (FC). [39] However, I agreed with the Plaintiff’s submissions that the cross-appeal on this issue was wrongly filed and the Defendants could only appeal to have it varied: O.55 r.8 of the ROC. They cannot appeal against the interest being awarded because that was a discretion of the SCJ to award interest at 2.5% for special damages, including the purchase of the prosthetist for the Plaintiff. CONCLUSION [40] Premised upon the above considerations, the Court allowed the Plaintiff’s appeal in part with costs and dismissed the Defendants’ appeal on liability and cross-appeal on interest. Dated 12 December 2024 Sgd. NOOR RUWENA BINTI MD NURDIN Judge High Court of Malaya, Taiping For the Plaintiff: Ms. Narinder Kaur with Ms. Eda Nurul Hanani Binti Md Daud Messrs. Sudesh Narinder and Partners, Parit Buntar For the Defendants: Mr. Gurmeet Singh Messrs. Sabaruddin Othman & Ho, Kuala Lumpur