Aini binti Abdullah v Nathan a/l Athimoolam (BA-12B-47-07/2022)

AINI BINTI ABDULLAH ….. APPELLANT [IDENTITY CARD NO. : 680106-05-5467]

NATHAN A/L ATHIMOOLAM ….. RESPONDENT [IDENTITY CARD NO. : 751026-01-5700] In the Session Court of Sepang In the State of Selangor, Malaysia Civil Suit No. : S2-BK-A53KJ-282-10-2019 Between Nanthan a/l Athimoolam [Identity Card No. : 680106-05-5467] ….. Plaintiff and Aini binti Abdullah [Identity Card No. : 751026-01-5700] ….. Defendant GROUNDS OF JUDGMENT (Appeal on Damages and Quantum)

The Sessions Court awarded various heads of damages in favour of the Plaintiff in this accident case.

Dissatisfied with the said decision, the Defendant has appealed to this Court on the issues of damages and quantum thereof.

After having read the parties' written submissions and having heard the parties' respective counsel, this Court on 21 August 2023 allowed parts of the Appellant/Defendant's appeal on the amounts 2 of three (3) heads of damages and dismissed the appeal which relates to the other heads of damages.

Dissatisfied with the decision, both the Appellant/Defendant and the Respondent/Plaintiff have filed separate notices of appeal to appeal against the respective parts of the decision which are not favourable to them respectively. Principles on appellate intervention

In an appeal against award of damages or compensation, the appellate court may intervene where it is satisfied that the trial judge has acted on a wrong principle of law, or has misapprehended the facts, or has for other reasons made a wholly erroneous estimate of the damages suffered: House of Lords in Davies v. Powell Duffryn Assoc. Collieries [1942] AC, p. 616-617, followed in Collector of Stamp Duties v. Ng Fah In [1981] 1 LNS 107; [1981] 1 MLJ 288 at p. 292A; or to be a wholly wrong estimate of the damages, the amount awarded must manifestly be either excessively high or excessively low.

An omission on the part of the trial judge to consider some relevant matters or he had admitted for the purpose of assessment some irrelevant considerations or a misdirection of law are examples of having acted on a wrong principle of law or having misapprehended the facts which justifies appellate interference on the award of damages or the quantum of damages: Supreme Court in Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 2 MLJ 22 followed by the Court of Appeal in Laksmana Realty Sdn Bhd v. Goh Eng Hwa [2005] 4 CLJ 871; [2006] 1 MLJ 675 at pg. para [16].

The Court of Appeal in the case of Sambaga Valli KR Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors And Other Appeal [2017] 1 LNS 500; [2018] 1 MLJ 784 emphasised regarding appellate intervention in the award of damages that: ‘[8] The Court of Appeal may interfere with the quantum of damages awarded by the judge only if it is shows that the latter:

acted on the wrong principles

misapprehended the facts; and 3

had for these or other reasons made a wholly erroneous estimate of his damages.’;

In Aziz bin Zakaria & Anor v Rusli bin Ijam [2022] MLJU 1651 the High Court summarised the principles and the approach in the following words: ‘[6] The principles which allow an appellate court to interfere with an award of damages are well established. The appellate court will interfere where the court below has: (i) acted on a wrong principle of law or has misapprehended the facts; and (ii) made a wholly erroneous estimate of the damages either by taking into account irrelevant considerations or omitting to take into account relevant considerations or making an award that is so inordinately low or manifestly excessive or making an award that is so much out of line with the discernible trend of awards in reasonably comparable cases, (see Rasidin bin Partojo v Frederick Kiai [1976] 2 MLJ 214, Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ Rep 323 and United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ 237). [7] The governing principle when awarding general damages is to compensate the injured person for the pain and suffering and loss of amenities. It should not be a reward and less still punishment. The compensation awarded must be fair, adequate and not excessive. The purpose is to give reparation for the wrongful act and for all the natural and direct consequences for the wrongful act as far as money can compensate, (see Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292 and Ong Ah Long v Or S Underwood [1983] 2 MLJ 324). [8] In deciding the measure of damages or size of the award for a bodily injury the principle applied by our courts is to look at amounts awarded in past cases, which bear reasonable comparison with the case under review (United Plywood & Sawmill Ltd, supra). The guiding principle as to which previously decided case is be taken was established in Jag Singh v Toong Fong Omnibus [1964] MLJ 463 in the following words: it is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any 4 comparison between the award in the respective cases can fairly or profitably be made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. [9] The learned Judge was generally guided by the Revised Compendium of Personal Injury Awards 2018 which reflect reasonable comparables from a low range to a high range depending on the gravity of the injury and disabilities. The defendants’ complaint was that the awards made for the injuries were manifestly excessive. Guidance when facing such a complaint is well settled. In United Plywood & Sawmill Ltd (supra) it was said that the appellate court can interfere with an assessment if it is considered so inordinately low or inordinately high as to make the court exclaim, ‘Good gracious, is that the sum which has been awarded - that sum must be altered’, or 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.’;

In Abdul Waffiy Wahubbi & Anor v. Nazaruddin Ahmad [2017] 1 LNS 2296 S Nantha Balan J. (now JCA) held as follows: “[39] It is axiomatic and imperative that when awarding damages for pain and suffering for personal injuries, the court must endeavour to ensure that the sum awarded falls within the range as stipulated in the Compendium and it would be wrong for trial courts to ignore the range of damages as recommended in the Compendium and to pluck a quantum from the air and make an award for a particular injury which does not resonate with the range in the Compendium.” Rotator cuff tear with biceps tendinosis and impingement left shoulder injuries (RM30,000 awarded by trial judge):

In the present appeal, the traffic accident occurred on 28.7.2017. The Respondent/Plaintiff’s argument was that the Plaintiff suffered rotator cuff tear with biceps tendinosis and impingement left shoulder injuries which were caused by the road accident on 28.7.2017. The Appellant/Defendant’s argument was that the Plaintiff failed to prove that these alleged shoulder injuries were 5 caused by the accident and alternatively that the quantum awarded was grossly excessive.

The trial judge’s findings on causal link and his reasons are set out in paragraphs [20] to [38] of his Grounds of Judgment [Appeal Records Tambahan in Enclosure 12].

The relevant parts of the trial judge’s findings and this Court’s comments and analyses are summarised below:

The trial judge’s 1st reason: “[21] First, the way in which the accident occurred. The Plaintiff’s evidence indicates that the collision hit the left side of the plaintiff’s body.” This Court’s comments and analysis: This is a relevant factor which to a little extent tends to support the plaintiff’s case of causal link. However, this factor cannot be viewed in isolation. Whether or not the plaintiff has proven his case of causal link between the rotator cuff tear and the accident of 28.7.2017 must be considered and analysed from the totality of the circumstances between the date of accident and some pre-action period of time after establishing the proof of the existence of the rotator cuff tear. This consideration and analysis is done in a later part of this summary of judgment. Such consideration and analysis is to be done in accordance with the legal principles and cannot be made by merely referring to one or two isolated items of evidence.

The trial judge’s 2nd reason: “[22] Second, the plaintiff was adamant on the witness stand testifying that he was not involved in any other accidents than the accident.” This Court’s comments and analysis: This is not a relevant factor which renders the plaintiff’s oral testimony inherently probable or more probable. The Court of Appeal in Lee Ing Chin @ Lee Teck Seng & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97, [2003] 2 AMR 357 held that: "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 6 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. There are a number of important and leading cases in which the point has been considered." (emphasis added) The Court of Appeal referred to the Federal Court's decisions and the Privy Council's decision before coming to such conclusion”. In dealing with conflicting evidence the duty of the Court is explained by the Court of Appeal in Guan Teik Sdn Bhd v. Haji Mohd Noor bin Haji Yakob & Ors [2000] 4 CLJ 324 as follows: " In cases where conflicting evidence are presented before a court, it is the duty of the court not only to weigh such evidence on a balance of probabilities but it is also incumbent upon the court to look at all the surrounding factors and to weigh and evaluate contemporaneous documents that may tend to establish the truth or otherwise of a given fact. In this instance the learned trial judge discredited the evidence of the appellant, accepted the evidence of the respondents wholeheartedly and disregarded the contemporaneous documents totally. We say that he had erred as he had failed to direct his mind as to the probative effect of the contemporaneous documents. He should, after accepting the respondents' evidence, weighed it against the contemporaneous documents and evaluate whether such documents support the respondents' oral testimony. We say that this evaluation exercise is most crucial for it must be remembered that the respondents were testifying to events that happened eighteen years ago whilst the contemporaneous documents speak of matters then existing at the time such documents, were issued." (emphasis added)

The trial judge’s 2nd reason: “[23] The plaintiff was cross-examined at length, from which he came out unscathed, and his evidence remains unrefuted.” 7 This Court’s comments and analysis: This is not a relevant factor which renders the plaintiff’s oral testimony inherently probable or more probable. This Court’s comments in respect of the trial judge’s 2nd reason are also applicable here.

The trial judge’s 3rd reason: “[24] Third, the evidence indicates that the plaintiff was given medical certificates, Exhibit P13, for the period beginning 28.7.2017 until 26.1.2018 (approximately six months), during which he was off work and put on medical leave. As is apparent, he went to receive a subsequent medical assessment at the MIOT International Hospital when he was still within the medical leave period.” This Court’s comments and analysis: This is not a relevant factor which renders the plaintiff’s oral testimony inherently probable or more probable. The medical leave was given by Dr Maidin bin Sarman (“Dr. Maidin”) of NSCMH for the fractures in the phalanges, radius and ulna and other injuries and in all the medical records and reports of Dr. Maidin there was no mention whatsoever of rotator cuff tear at all. There was no reference or recommendation by any Malaysian doctor for the plaintiff to go to India for medical treatment or diagnosis. Therefore, the trial judge erred in principle and in fact in purporting to find that Dr. Maidin’s medical leave to the plaintiff was allegedly by reason of the rotator cuff tear – an alleged injury which Dr. Maidin did not know about nor mention at all. There is also is no documentary evidence to prove that the plaintiff booked any air ticket or made a trip to India.

The trial judge’s 4th reason: “[25] Fourth, the plaintiff’s evidence indicates that he had persistent pain in his shoulder, which led him to seek subsequent medical assessment at the MIOT International Hospital.” This Court’s comments and analysis: This is not a relevant factor which renders the plaintiff’s oral testimony inherently probable or more probable. The medical leave was given by Dr Maidin bin Sarman (“Dr. Maidin”) of NSCMH for the fractures in the phalanges and radius and ulna and other injuries -- and in all the medical records and reports of Dr. Maidin there was no mention whatsoever of rotator cuff tear at all. There was no reference or recommendation by any Malaysian doctor for the plaintiff to go to India for medical treatment or diagnosis. There 8 is also is no documentary evidence to prove that the plaintiff booked any air ticket or made a trip to India.

The trial judge’s 5th reason: “[26] Fifth, the consistency of the plaintiff’s pattern of complaints regarding the pain in his upper limb.” This Court’s comments and analysis: The allegation of consistency of the plaintiff’s pattern of complaints regarding pain is to be considered and analysed from the totality of the contemporaneous documentary evidence and not merely by one or two isolated medical reports. This consideration and analysis will be done in a later part of this summary of judgment.

The trial judge’s 6th reason: “[27] Sixth, upon weighing the former specialist reports, it remains clear that the former reports were made sans the benefit of magnetic resonance imaging (the MRI). “ This Court’s comments and analysis: Magnetic resonance imaging (MRI) can show whether or not there exists a tear to rotator cuff, but it does not explain or constitute evidence of causal link between the rotator cuff tear and the road accident of 28.7.2017. The question of whether or not there is a causal link must be considered and analysed from the totality of the circumstances between the date of accident and some pre-action period of time after establishing the proof of the existence of the rotator cuff tear. This consideration and analysis will be done in a later part of this summary of judgment.

The trial judge’s 7th reason: “[28] Seventh, the plaintiff’s claim under the present heading is not sans credible evidential backing.” This Court’s comments and analysis: The question whether or not the plaintiff’s allegation of sustaining the rotator cuff tear during the road accident of 28.7.2017 must be considered and analysed from the totality of the circumstances between the date of accident and some pre-action period of time after establishing the proof of the existence of the rotator cuff tear. This consideration and analysis is done in a later part of this summary of judgment. Such consideration and analysis are to 9 be done in accordance with the legal principles and cannot be made by merely referring to one or two isolated items of evidence.

The trial judge’s 8th reason: “[29] Eight, no doubt mindful of the approximately four-month gap between the accident date and the MIOT International Medical Reports, I nonetheless respectfully find that the preceding gap does not ipso factor trigger automatic disconnect regarding the left shoulder injuries and the accident.” This Court’s comments and analysis: The lapse of 4 months between the accident date and the MIOT International Medical Reports cannot be a factor which leans in favour of the plaintiff’s version here. Whether or not such lapse of 4 months is a neutral factor or a factor which leans in favour of the defendant’s case here is to considered and analysed from the totality of the circumstances between the date of accident and some pre-action period of time after establishing the proof of the existence of the rotator cuff tear. This consideration and analysis is done in a later part of this summary of judgment. Such consideration and analysis is to be done in accordance with the legal principles and cannot be made by merely referring to one or two isolated items of evidence.

The trial judge’s 9th reason: “[30] Ninth, there was no evidence led in court in the form of any medical records showing that the left shoulder injuries were due to any other accidents, and neither was there any work history records showing that the respective injury was due to any workplace incidents.” This Court’s comments and analysis: This is not a relevant factor to be considered as leaning against the defendant’s defence. A claimant who comes to court has the propensity to omit evidence which is clearly adverse to him. In cases of medical history of a plaintiff, the defendant has no means of obtaining the plaintiff’s past medical records because there are many hospitals in the country, the defendant does not which hospital(s) the plaintiff has visited in the past, and even if the defendant knows, the hospitals are bound by duty of privacy and confidentiality not to disclose it to another person. As such, if a plaintiff wants to prove that the injury complained of did not exist prior to the road accident, he/she should produce his/her past medical records to prove it. In the present case, the plaintiff did not produce any past medical record of his in respect of 10 period before the date of accident. Also, when assessing and deciding whether or not the plaintiff has proved his case on causation, the onus of proof is upon the plaintiff. The trial judge’s reliance on this factor has the effect of shifting the onus of proof to the defendant and is therefore erroneous in principle. In any event, even if the plaintiff were to produce his past medical records to prove the absence of such injury before the date of accident, it still does not prove that he did not sustain the injury in another incident subsequent to the date of accident. Such question of causal link has to be considered and analysed from the totality of the circumstances between the date of accident and some pre-action period of time after establishing the proof of the existence of the rotator cuff tear. This consideration and analysis is done in a later part of this summary of judgment. Such consideration and analysis are to be done in accordance with the legal principles and cannot be made by merely referring to one or two isolated items of evidence.

The trial judge’s 10th reason: “[31] Tenth, there was no evidence led in court indicating the plaintiff’s involvement in any other accidents at the material time.” This Court’s comments and analysis: Accident is not the only possible cause of rotator cuff tear. There can be many other possible causes of rotator cuff tear, including a fall, a hard knock, over-exertion, excessive pressure exerted by a machine or equipment, etc. The absence of evidence of another accident is basically a neutral factor which does not lean against the plaintiff’s case of causal link. Whether or not it is a factor which leans in favour of the plaintiff’s case of causal link has to be considered and analysed from the totality of the circumstances between the date of accident and some pre-action period of time after establishing the proof of the existence of the rotator cuff tear. This consideration and analysis is done in a later part of this summary of judgment. Such consideration and analysis are to be done in accordance with the legal principles and cannot be made by merely referring to one or two isolated items of evidence.

The trial judge’s 11th reason: “[32] Eleventh, there was no evidence led in court indicating that the left shoulder injuries were documented previously by any medical records prior to the accident: the injury was neither pre-existing nor old.” 11 This Court’s comments and analysis: As regards previously documented medical records, this Court’s comments in respect of the trial judge’s 9th reason are also applicable here. As regards the purported finding that the injury was neither pre-existing nor old, there is no medical report to specifically diagnose and conclude the age of the rotator cuff tear, nor any clinical explanation or basis for coming to an opinion on the age of the rotator cuff tear. The trial judge erred in making such finding in the absence of medical evidence to that specific effect or disclosure of any clinical basis for making such medical opinion.

The trial judge’s 12th reason: “[33] Twelfth, there was no evidence led in court indicating that the left shoulder injuries were recent in nature (unrelated to the accident).” This Court’s comments and analysis: When assessing and deciding whether or not the plaintiff has proved his case on causation, the onus of proof is upon the plaintiff. The trial judge’s reliance on this factor has the effect of shifting the onus of proof to the defendant and is therefore erroneous in principle. In the present case, there is no specific medical evidence that the rotator cuff tear was recent in nature or was an old injury or the age of the injury. The absence of evidence either way is a neutral factor and cannot form a reason for the trial judge’s finding in favour of or against either party here. Therefore, the trial judge erred in principle and in fact in using it as one of the reasons for his finding of causal link in favour of the plaintiff and against the defendant here.

From the above comments and analysis, this Court has made the conclusion that the trial judge erred in principle and in fact and/or has failed to consider and scrutinise the evidence and facts in accordance with the correct principles. In the premises, this is a proper case for appellate intervention on the question of causation or causal link.

In the premises, this Court will now consider, analyse and scrutinise the entirety of the facts and circumstances pertaining to the question of causal link in order to find and conclude whether or not the plaintiff here has proven his case of causal link between the rotator cuff tear and the accident of 28.7.2017. 12

The items of documentary evidence relevant to this head of claim and the question of causal link in chronological sequence are as follows:

28.7.2017: Plaintiff was admitted to Putrajaya Hospital; he discharged the same date as he wanted to be treated at NSCMH due to logistic reason; in the medical report, no mention of any rotator cuff tear nor complaint of pain in shoulder [Appeal Records Volume 1 pages 129 – 130 in Enclosure 4 ] :

28.7.2017 at 6.29 p.m.: Admitted to NSCMH Medical Centre of Seremban [Appeal Records Volume 1 page 143], underwent a number of medical treatments, and was discharged on 1.8.2017. No mention of any rotator cuff tear nor complaint of pain in shoulder [pages 143 – 145, 109]. The relevant item of recorded complaint was “ Pain and bleeding wound at left hand, left abdomen and left calf/foot. Pain and bleeding at left finger. No loss of consciousness. No shortness of breath. No ENT bleed” [page 109]

3.8.2017: attended to by doctor in NSCMH Medical Centre of Seremban the 2nd time for medication and medical supplies: [Appeal Records Volume 1 pages 146 - 147]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

11.8.2017: attended to by doctor in NSCMH Medical Centre of Seremban the 3rd time for follow-up, medication and medical supplies: [Appeal Records Volume 1 pages 149 - 150]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

21.8.2017: Plaintiff was discharged from the hospital: Appeal Records Volume 1 page 109.

01.09.2017: NSCMH Dr Maidin’s Medical report: RR Volume 1 pages 109 – 112. No mention of rotator cuff tear nor any complaint of pain in shoulder.

14.9.2017: visited NSCMH Medical Centre of Seremban the 4th time for physiotherapy procedures: [Appeal Records Volume 1 page 152]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

18.9.2017: visited NSCMH Medical Centre of Seremban the 5th time for obtaining Dr Maidin’s medical report: [Appeal Records 13 Volume 1 page 153]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

25.9.2017: visited NSCMH Medical Centre of Seremban the 6th time for physiotherapy procedures and initial consultation as outpatient: [Appeal Records Volume 1 pages 157 and 159]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

4.10.2017: visited NSCMH Medical Centre of Seremban the 7th time for physiotherapy procedures: [Appeal Records Volume 1 pages 157 and 159]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

11.10.2017: visited NSCMH Medical Centre of Seremban the 8th time for physiotherapy procedures: [Appeal Records Volume 1 page 163]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

19.10.2017: visited NSCMH Medical Centre of Seremban the 9th time for physiotherapy procedures: [Appeal Records Volume 1 page 165]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

25.10.2017: visited NSCMH Medical Centre of Seremban the 10th time for initial consultation as outpatient (7.00 a.m. – 5.00 p.m.), X-ray and physiotherapy procedures: [Appeal Records Volume 1 page 169 - 171]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

01.11.2017: visited NSCMH Medical Centre of Seremban the 11th time for physiotherapy procedures: [Appeal Records Volume 1 page 173]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

09.11.2017: visited NSCMH Medical Centre of Seremban the 12th time for physiotherapy procedures: [Appeal Records Volume 1 page 175]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

24.11.2017: visited NSCMH Medical Centre of Seremban the 13th time and paid RM401.65 to the hospital: [Appeal Records Volume 1 page 177]. No medical report provided. 14 06/12/2017: MIOT International (India) report: with the word “International” superimposed on the date 06/12/2017: For the 1st time “Rotator cuff tear and biceps tendinosis & impingement left shoulder” was mentioned.

27.12.2017: visited NSCMH Medical Centre of Seremban the 14th time for follow-up consultation as outpatient: [Appeal Records Volume 1 page 178]. No mention of rotator cuff tear nor any complaint of pain in shoulder.

10.01.2018: visited NSCMH Medical Centre of Seremban the 15th time and paid RM308.35 to the hospital: [Appeal Records Volume 1 page 179]. Obtained medical report dated 10.01.2018 of Dr Maidin: pages 113 – 114. No mention of rotator cuff tear nor any complaint of pain in shoulder. What was recorded was “Currently he still having pain on and off over his both knees, left foot and left hand. He is advised not to lift any heavy stuff and any contact sports (light duty) started from 27th January 2018 until 20th June 2018.”[page 113].

22.03.2018: Dr Phang’s medical report: This Dr Phang’s report dated 22.3.2018 was referred to in Dr Dhillon’s report dated 14.11.2018 [page 394], but no copy of Dr Phang’s medical report dated 22.3.2018 was produced.

03.04.2018: NSCMH Medical Centre of Seremban via Consultant Radiologist Dr Rosie Fasuha Sulaiman’s Report recorded, among others, the following item after MRI left shoulder: “Findings: ROTATOR CUFF and ASSOCIATED STRUCTURES Hyperintense signal noted within the supraspinatus tendon, SST close to its insertion site with peritendinous fluid suggestive of partial tear. No supraspinatus muscle atrophy. The subscapularis tendon appears thickened with intermediate signal suggestive of strain of partial tear. The infraspinatus and teres minor tendons return normal signal. The rotator cuff muscle bulk is preserved. No abnormal signal seen. Mild acromioclavicular joint arthropathy. Type II acromion process. [Appeal Records Volume 1 page 195; Enclosure 4 pdf page 217] 15

23.4.2018: visited NSCMH Medical Centre of Seremban the 16th time and paid RM84.80 to the hospital for medical report: [Appeal Records Volume 1 page 180 & 181]. No medical report attached.

30.5.2018: medical report of NSCMH Medical Centre of Seremban which recorded inter alia that “Currently he still having pain on and off over his both knees, left foot and left hand. He is advised not to lift any heavy stuff and any contact sports (light duty) started from 27th January 2018 until 20th June 2018.” [page 185].

25.9.2018: medical report of NSCMH Medical Centre of Seremban which recorded inter alia that “Currently he still having pain on and off over his both knees, left foot and left hand. He is advised not to lift any heavy stuff and any contact sports and light duty for life” [page 185].

14.11.2018: medical report of Dr Dhillon of KPJ Shah Alam: which recorded inter alia that: “Present complaints:

Pain left foot on walking; 2. Unable to wear shoe left foot; 3. Swelling left hand on lifting heavy object. Physical examination: A. Upper limb: ….

The shoulder movements were full. The abduction and flexion was 180o on both sides, external rotation 45o, internal rotation 90o and extension 50o on both sides He has no shoulder pain. The movements of the shoulder are full. The impingement sign is negative. He had no injury to his left shoulder. He will not need surgery for his left shoulder”. [Appeal Records, pages 394 – 395, 397]

14.02.2019: medical report by Dr Phang of Phang Orthopaedic and Trauma Clinic: which recorded inter alia as follows: “In my report, I did not mention following finding but Dr. Dhillon mentioned:

“No wasting of the thigh and leg” (page 3 last paragraph)

“He will not, need surgery for his left shoulder”. (Page 4 last paragraph). This patient did not sustained [sic] any injuries to left shoulder and any of his lower limbs. The comments from Dr. Dhillon is unnecessary” [see pages 190 – 191].

20.02.2020: Dr. KS Dhillon’s comments (pages 400 – 401) on Dr Phang’s new report: item g at page 401: 16 “g. He will not need surgery for the left shoulder I was provided with a report by Dr Ramu who had advised surgery for the patient’s left surgery. Hence, my comments that he had no injury to the left shoulder on 28/07/17” Attached thereto is a lengthy article intituled “Osteoarthritis – What’s new? Debunking pervasive dogmatic myths” written by Dr. KS Dhillon [pages 402 – 447].

From the abovementioned chronological summary of the events from the contemporaneous documents, the following facts and circumstances are established:

Between 28.7.2017 (the date of the accident) and 10.01.2018, the Plaintiff visited and/or was attended by doctor in NSCMH 15 times for medical treatments, follow-up, consultation and physiotherapy;

Of these visits and attendances, there were 8 times the Plaintiff went through physiotherapy procedures at NSCMH;

During these visits and attendances, there was no mention of rotator cuff tear;

In the medical records for these visits and attendances, there was not even a single record of any complaint by the Plaintiff of pain in shoulder;

MIOT International (India)’s report dated 06.12.2017 was the first time the rotator cuff tear was ever mentioned;

MIOT International (India)’s report did not give any opinion as to the age of the rotator cuff tear (i.e. whether it was recent or old) and also did not state the likely cause of the rotator cuff tear;

There is no referral or recommendation by any Malaysian doctor for the Plaintiff to go to India or to MIOT International (India);

The Plaintiff has not produced any documentary of his air ticket and trip to India; 17

There is no expert evidence here as to the possible or likely causes of tendinosis mentioned in MIOT’s report;

There is no expert evidence here as to the possible or likely causes of impingement mentioned in MIOT’s report;

On 27.12.2017, the Plaintiff visited NSCMH again for follow-up and consultation. There was no mention of rotator cuff tear or complaint of pain in shoulder;

On 10.01.2018, the Plaintiff obtained medical report dated 10.01.2018 of Dr Maidin: pages 113 – 114. No mention of rotator cuff tear nor any complaint of pain in shoulder. What was recorded was “Currently he still having pain on and off over his both knees, left foot and left hand. He is advised not to lift any heavy stuff and any contact sports (light duty) started from 27th January 2018 until 20th June 2018.”[page 113]

Medical report dated 14.11.2018 of Dr Dhillon of KPJ Shah Alam recorded inter alia that: “Present complaints: 1. Pain left foot on walking; 2. Unable to wear shoe left foot; 3. Swelling left hand on lifting heavy object. Physical examination: A. Upper limb: …. 2. The shoulder movements were full. The abduction and flexion was 180o on both sides, external rotation 45o, internal rotation 90o and extension 50o on both sides He has no shoulder pain. The movements of the shoulder are full. The impingement sign is negative. He had no injury to his left shoulder. He will not need surgery for his left shoulder”. [Appeal Records, pages 394 – 395, 397]

In Dr Phang’s medical report dated 14.02.2019, Dr Phang stated that the Plaintiff did not sustain any shoulder injury.

In addition to the facts and circumstances, the Court also has to consider the following factors:

as the rotator cuff tear injury of the nature and extent described in MIOT International’s report would have caused 18 pain to the shoulder, it is improbable that an accident victim would not have promptly complained of shoulder pain to the doctor or the hospital who attended to and medically treated him a multiple of times; and

as the Plaintiff went through physiotherapy procedures at NSCMH 8 times between 28.7.2017 (the date of the accident) and 10.01.2018 to address and treat muscle wasting of his left hand, it is highly improbable that he would have not promptly complained of left shoulder pain (if any) to the hospital, the doctor or staff during the physiotherapy procedures for treating the muscle wasting of his left hand.

In Armiina Sdn Bhd v. Gerry Ho & Ors [2023] 7 CLJ 349 the Federal Court reversed the concurrent findings and decisions of the High Court and the Court of Appeal and held inter alia as follows: “[51] ……………….. This finding we find, is against the weight of evidence as discussed earlier. [52] In the circumstances, we find that there was insufficient judicial appreciation of the evidence by both the High Court and the Court of Appeal which amount to a plainly wrong decision that warrants the intervention of this court. (see Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Administrator Of The Estates Of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1; Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1 (FC))”

Likewise, this Court finds that there was insufficient judicial appreciation of the evidence on the question of causation by the trial court, and that the decision made therefore constitutes a plainly wrong decision which warrants an appellate intervention.

Upon analysis and scrutiny of the entire facts and circumstances relevant to the question of causal link, this Court finds that a reasonable trial judge should have made the conclusion that the Plaintiff has failed to prove the causal link between the 28.7.2017 accident and the rotator cuff tear on a balance of probabilities.

The trial judge has failed to appreciate the relevant evidence here, and his purported finding of causal link is against the weight of evidence. 19

In the premises this Court has held that the Plaintiff has failed to prove the causal link between the 28.7.2017 accident and the rotator cuff tear on a balance of probabilities. On this ground, the Plaintiff’s claim for damages for rotator cuff tear should be dismissed.

In the premises, the trial judge’s award of the damages for rotator cuff tear is set aside. Quantum of general damages for rotator cuff tear and associated injuries:

On the quantum of general damages for rotator cuff tear and associated injuries, the trial judge held as follows: “ [47] Assessing the award to the granted, I take cognisance that the left shoulder injury directly in concern involves several features, including: (i) rotator cuff tear; (ii) biceps tendinosis and impingement; (iii) partial tear of subscapularis tendon; (iv) bone bruise posterior aspect of humeral head; and (v) superior labral tear (see paragraph [28] of this judgment). And so far as concerns the Compendium, I find myself agreeing with the stance taken by learned counsel for the plaintiff that as there was no specific range of awards set out therein for the injuries under the present heading, reliance may be attached on the range of awards for clavicle and tendon injuries (see paragraph (18) of this judgment). The Compendium provides: Injury Low High Clavicle 13,000 28,000 Tendon/muscle 8,000 10,000 Considering the preceding arguments, the medical reports, the range of awards in the Compendium, the comparison of compensation awarded in cases of comparable injuries, the plaintiff’s age, the recovery progress upon continuous treatment, the accompanying residual disabilities as well as the facts and circumstantial peculiarities of the case in their entirety, I award RM30,000.00 for the rotator cuff tear with biceps tendinosis and impingement left shoulder injuries.”

In essence, the injuries of (i) rotator cuff tear; (ii) biceps tendinosis and impingement; (iii) partial tear of subscapularis tendon; and (iv) 20 superior labral tear are tear and/or partial tear of the 4 muscles at the shoulder joint. Such injuries on tear to muscles are less serious than a fracture of clavicle, the collar bone. It is likely that a fracture of the clavicle would usually also cause tear of one or more of the muscles around the clavicle.

In the premises, the quantum of general damages for injuries (i) rotator cuff tear; (ii) biceps tendinosis and impingement; (iii) partial tear of subscapularis tendon; and (iv) superior labral tear should not exceed the mid-range of the quantum for fracture of clavicle.

In the circumstances, this Court finds that if causal link were proven, the reasonable quantum for the combined injuries of (i) rotator cuff tear; (ii) biceps tendinosis and impingement; (iii) partial tear of subscapularis tendon; (iv) bone bruise posterior aspect of humeral head; and (v) superior labral tear should be RM20,000. Multiple fractures of phalanx, namely, (i) closed chip fracture of distal phalanx of left thumb (RM14,000), (ii) closed fracture middle phalanx of the left index finger (RM10,000), (iii) closed fracture middle phalanx of the left middle finger (RM10,000),

(iv) closed fracture middle phalanx of the left ring finger (RM10,000), (v) closed fracture of proximal phalanx of the left middle finger with extensor tendon cut (RM20,000),

In the present case the trial judge summarised the injuries to the Plaintiff’s left hand and the parties’ respective submissions in paragraphs [48] and [49] of his Grounds of Judgment as follows: “[48] Learned counsel for the plaintiff submitted that the plaintiff suffered a closed chip fracture distal phalanx of the left thumb arising out of the accident. He submitted an amount of RM20,000.00. the comparable awards relied upon were the cases of Leenesh a/l Vijaya & Anor v. Yap Chiew Sun [2017] MLJU 2060; [2017] 1 LNS 2213, wherein the High Court awarded RM8,000.00 for closed fracture left 4th distal phalanx and Abdul Hanim b Abdul Malek v. Mohd Hanif bin Ramli [2012] 2 PIR [29], wherein the Sessions Court granted RM7,000.00 for fracture of distal phalanx of the right ring finger. Further, he placed reliance on the cases of Rubhendran a/l Danapal v. Chin Chun Swee & Rodzi Kayu Kayan Sdn Bhd & Anor [2020] 1 PIR [29], Wan Widad Aufa bt Wan Halim v. Venu a/l Sivasamy & 2 Ors [2020] 1 PIR [10] and Abdul Waffiy bin Wahubbin & Anor v. AK Nazaruddin bin Ahmad 21 [2017] MLJU 761; [2017] 2 PIR [1] to support the plaintiff’s stance for a higher award granted for a chip fracture. [49] Learned counsel for the defendant submitted a global amount of RM20,000 for multiplex phalanx injuries, namely: (i) closed chip fracture distal phalanx of left thumb; (ii) closed fracture middle phalanx of the left index finger; (iii) closed fracture middle phalanx of the left middle finger; (iv) closed fracture middle phalanx of the left ring finger; and (v) closed fracture proximal phalanx of the left little finger with extensor tendon cut. The comparable awards relied upon were the case of Mohd Shukri bin Yang v. Mohd Hazwan bin Hamidan [2020] 1 PIR [36], wherein the Sessions Court awarded RM12,000,00 for united open fracture distal phalanx of the left ring finger and middle phalanx and distal phalanx of the left middle finger, Suhairi bin Isap & Anor v. Wong Yin Theng & Anor [2019] 2 PIR [20], wherein the Sessions Court awarded RM13,000.00 for open fracture proximal phalanx base of the left middle finger and head of the 4th metacarpal bone and Mohammad Nazirul Ikhwan bin Izzadi v. Ain Wahidah binti Wahidah binti Abdullah & 2 Ors [2021] 2 PIR [6], wherein the court awarded RM5,000 for multiple extensor tendon cut of the left index, middle ring fingers.”

The Sessions Court awarded a total of RM64,000 for these hand injuries by arithmetically adding up the 5 figures for the 5 items (i) to

(v).

On appeal, the main complaint of the Appellant/Defendant is that RM64,000 for these hand injuries is more than the maximum award of RM60,000 for amputation through elbow joint which is stated in the Compendium of Personal Injury Awards 2018, and it is therefore erroneous in principle and/or grossly excessive.

In the Compendium it is stated that “in any event, as a rule of thumb, no award should be made which would exceed an award for an amputation except in exceptional circumstances where the disabilities are so severe as to be worse than an amputation in terms of mobility and function”.

It is indisputable that a permanent disability is more serious than a temporary disability, a total disability is more serious than a partial disability, and an amputation of a hand is more serious than fractures of some bones in the hand which have since united. 22

It is also the settled legal principle that the quantum of general damages for pain and suffering for a more serious injury should be higher than the quantum of general damages for pain and suffering for a less serious injury of the same type or category.

In the present appeal, the fractures of some bones with partial disabilities after the union of the bones were significantly less serious than the amputation of the hand at the elbow, irrespective of whether the Plaintiff’s expert’s reports or the Defendant’s expert’s report is to be accepted. In such situation, it is erroneous in principle to award a total amount of general damages for fractures of some bones in the hand and the residual partial disabilities by arithmetically adding up the figures for all the items of bone fractures in the hand which results in a total award for fractures of some hand bones a sum which is more than the awarded amount for amputation of the hand at elbow.

Moreover, when awarding general damages for multiple fractures of bones in the same arm or hand of a plaintiff, the Court in principle should take into consideration the overlapping factor and therefore give a reduction factor after arithmetically adding up the figures for all the fractures of the bines in the same arm or hand. This is decided in case authorities including Keh Yong Siang v. Oh Chi Yit (Ng Chee Kien, Pihak Ketiga) [2012] 9 MLJ 44, Tan Cheong Poh v. Teoh Ah Kiew [1995] 3 MLJ 89 and Chong Chee Khong v. Ng Yeow Hin [1997] 5 MLJ 786.

This Court does not agree with the trial judge’s attempt to split hairs in paragraph [132] of his Grounds of Judgment where he stated that there should be no overlapping between the fractures on different fingers. In the considered opinion of this Court, the fingers on the same hand are sufficiently proximate to each other that the fractures at the fingers of the same hand are to be considered as overlapping for the purposes of awarding general damages for pain and suffering for these injuries.

There are 14 bones in the 5 fingers of a hand. If the trial judge’s hair-splitting exercise in the award of general damages for fractures of 5 finger bones on the same hand were to be upheld, then a situation of fractures to all 14 bones in the same hand would give a total award of more than RM100,000 – a figure which is erroneously and ridiculously higher than the quantum award for amputation of the entire arm through shoulder (RM94,000 recommended in the Compendium) and for amputation of the lower arm and hand 23 through elbow (RM60,000 recommended by the Compendium).

In the Compendium of Personal Injury Awards 2018, a maximum of RM60,000 was recommended for amputation below elbow joint. Here the trial judge awarded a total of RM64,000 for fractures of 5 phalanges (finger bones) which united with some partial disabilities.

In the premises, this Court holds that the trial judge has erred in principle and/or has awarded a grossly excessive amount when he awarded RM64,000 for the Plaintiff’s fractures of 5 phalanges (finger bones) which united with some partial disabilities – an amount which exceed the trend of awards of up to a maximum of RM60,000 for amputation through elbow, a much more serious injury which involves total permanent loss of the lower arm and the hand including all the bones in the lower arm and the hand (which include radius and ulna bones, carpal bones, metacarpal bone and all 14 phalanges.

Therefore, this is a proper case for appellate intervention on the quantum of award for the fractures of 5 phalanges and the residual partial disabilities.

Taking all factors and circumstances into account, this Court finds that a total amount of RM30,000 should be the reasonable quantum for the general damages in respect of the Plaintiff’s fractures of 5 phalanges, which took several months to unite, and the residual partial disabilities arising therefrom. Closed fracture left triquetrum (RM10,000)

Here, RM10,000 was awarded by the Sessions Court for closed fracture left triquetrum.

In Nguyen Thi Ha v. Song Ah Seng [2016] 2 PIR [41], the Sessions Court awarded RM12,000 for fractures of 3 carpal bones (hamate, capitates and trapezoid).

In the considered view of this Court, the Sessions Court in Nguyen Thi Ha v. Song Ah Seng case has probably taken into consideration the overlapping factor as the 3 carpal bones are on the same hand. 24

Taking into consideration that triquetrum is a bone in the wrist joint whereas carpal bones are bone in the palm and also the fact that the Plaintiff here had to undergo medical treatment for the injuries to his left hand for several months, this Court finds that the trial judge’s award of RM10,000 for fracture of the triquetrum in the particular circumstances of the present case is not erroneous in principle and is also not grossly excessive.

As such, there is no sufficient justification for an appellate intervention in the award of quantum for fracture of triquetrum here. Closed fracture left ulna styloid and closed fracture distal radius with radial styloid fracture

Here, the Sessions Court awarded RM15,000 + RM30,000 = RM45,000 in total for these two injuries.

In the present case the trial judge summarised the injuries to the Plaintiff’s left hand and the parties’ respective submissions in paragraphs [84] and [85] of his Grounds of Judgment as follows: “[84] Learned counsel for the plaintiff submitted that the plaintiff suffered a closed fracture of the left ulna styloid arising out of the accident. He submitted an amount of RM30,000.00. The comparable award relied upon was the case of Ganison a/l Krishnasamy v. Kong Sii Cheng & Anor [2015] 7 MLJ 535; [2014] 7 CLJ 88, wherein the High Court affirmed the award of RM20,000.00 granted by the Sessions Court for closed fracture of left ulna styloid. [85] Learned counsel for the defendant submitted a global amount of RM18,000.00 for closed fracture of left ulna styloid and closed fracture distal end of left radius with radial styloid fracture. The comparable awards relied upon were the cases of Chong Kiat Mian v. Tan Kuan She & 2 Ors [2021] 1 PIR [46], wherein the court awarded a global amount of RM36,000.00 for fractures of the lower ends of and left radius and ulnar styloid and Woon Kim Leong v. Muniady a/l Gopal [2019] 2 PIR [40], wherein the court awarded a global award of RM20,000.00 for open fracture distal 3rd of the right radius/ulna.”

In our present case there is no medical opinion to state that the closed fracture left ulna styloid and closed fracture distal radius with 25 radial styloid fracture suffered by the Plaintiff here is significantly more serious than the “fractures of the lower ends of and left radius and ulnar styloid” in the case of Chong Kiat Mian v. Tan Kuan She & 2 Ors [2021] 1 PIR [46].

Bearing in mind that both the radius and ulna are bones in the same left lower arm of the Plaintiff and that there is no medical opinion to state that the closed fracture left ulna styloid and closed fracture distal radius with radial styloid fracture suffered by the Plaintiff here is significantly more serious than the fractures of the lower ends of and left radius and ulnar styloid in the case of Chong Kiat Mian v. Tan Kuan She & 2 Ors [2021] 1 PIR [46], this Court holds that the quantum awarded in in the case of Chong Kiat Mian v. Tan Kuan She & 2 Ors [2021] 1 PIR [46] is consistent with the trend of awards and is also consistent the legal principle that overlapping factors should be considered by the Court in awarding general damages for personal injuries.

In the premises this Court finds that the trial judge in our present case erred in principle and has departed from the trend of awards by arithmetically adding the 2 amounts for fractures of ulna and radius in the same arm without taking into consideration the overlapping factor and by awarding an amount significantly higher than the awarded amount in 2021 in the case of Chong Kiat Mian v. Tan Kuan She & 2 Ors.

In the premises, the total combined amount awarded for the Plaintiff’s closed fracture left ulna styloid and closed fracture distal radius with radial styloid fracture in the present case should be revised to RM36,000, the same amount awarded in in 2021 in the case of Chong Kiat Mian v. Tan Kuan She & 2 Ors (supra). Muscle wasting

RM10,000 was awarded by the Sessions Court here for muscle wasting.

In the present case, the Appellant/Defendant relied on the High Court’s decision in Lim Kok Wa v. Wong Kien Chun [2016] 1 PIR 48 which held that no separate award for muscle wasting as medical evidence shows no significant wasting or osteoarthritis, and in any event, these disabilities arise from and are thus connected to the 26 main injury of the fracture of the tibia and fibula which justified the granting of a global award.

In the considered opinion of this Court, the question whether or not muscle wasting should be awarded as a separate item depends on the injuries and residual effects of the injuries in each case. There are some decided cases which awarded muscle wasting as a separate item, and there are also decided cases which did not award muscle wasting as a separate item.

In our present case, the Plaintiff had to attend no less than 8 sessions of physiotherapy treatments at NSCMH over a period of several months, indicative of the extent and seriousness of muscle wasting he suffered. In such exceptional circumstances, this Court does not find any sufficient justification for intervening in the trial judge’s award of RM10,000 for muscle wasting as a separate item to the Plaintiff in the particular circumstances of this case.

Here, RM15,000 was awarded by Sessions Court here for scarring.

Having considered the trial judge’s findings and reasons and also the range of awards for multiple scars in the Compendium, this Court do not find that the quantum awarded by the trial judge here is grossly excessive, though it may be argued as rather on the high side as compared with some past decided cases.

In the premises, there is no sufficient justification for an appellate intervention in the quantum of general damages awarded for the Plaintiff’s multiple scars here.

In the present case, the Plaintiff went through 8 times of physiotherapy procedures at the NSCMH in the past. As from the date of accident, the Plaintiff chose to be treated at NSCMH instead of Putrajaya Hospital by reason of logistics and NSCMH was near his place of residence.

Since the Plaintiff received medical treatments at NSCMH since the date of accident and continued to be treated there for several 27 months and his medical records on the injuries are kept by NSCMH, it is unreasonable to expect the Plaintiff to switch to a government hospital, which does not have his medical records on the past treatments, for future medical treatment after the Plaintiff’s injuries with multiple fractures have been successfully treated at NSCMH with only minor residual partial disabilities left.

In the circumstances, this Court agrees with the trial judge that the Plaintiff in the present case has given sufficient justification for seeking future medical treatments in a private hospital and to recover the costs of such future medical treatments in a private hospital.

In the circumstances, there is no sufficient justification for an appellate intervention in the award and quantum of special damages awarded for the Plaintiff’s future medical treatments in a private hospital. Loss of earnings

In the present case the Plaintiff was given medical leave for many months by the doctor in NSCMH.

Here, the trial judge awarded a total of RM79,963.19 as the pre-trial loss of earnings, being the loss of income from September 2017 until September 2020.

This Court agrees with the trial judge’s findings that the pre-trial loss of earnings is supported by documentary evidence and have been proved on a balance of probabilities. There is no error in principle when the trial judge made such findings on pre-trial loss of earnings and the amount awarded is not grossly excessive.

In the circumstances, there is no sufficient justification for an appellate intervention in the award and quantum of special damages awarded for the Plaintiff’s pre-trial loss of earnings.

As regards loss of future earnings and/or loss of earning capacity, the trial judge awarded RM83,160.00 as loss of future earnings and thereafter found no necessity to consider the claim for loss of earning capacity. The amount of RM83,160.00 was 1 ½ years of purchase at monthly amount of RM4,620.00 computed in 28 accordance with the relevant section of the Civil Law Act, as the Plaintiff was 52 years as at September 2020.

Prior to the accident, the Plaintiff worked as a technician. PW2 testified that the Plaintiff’s duties as a technician involved repair of heavy machinery, carrying heavy machinery, removal and replacement of parts in machinery dan other components of heavy machinery. According to PW2, the Plaintiff required us of enough force to carry out his works as a technician. As a result of the injuries suffered in the accident, the doctor in NSCMH has recommended that the Plaintiff be given only light duty and avoid heavy work or work involving use of force for the rest of his life. The trial judge accepted PW2’s evidence. As from 20.7. 2020, SOCSO (Perkeso) approved the Plaintiff’s invalidity pension. There is a letter from the Plaintiff’s employer that the disability rendered the Plaintiff unable to carry out his duties as a technician and he was advised to apply for invalidity pension. The Plaintiff’s monthly income of RM4,620.00 from his employer prior to the date of accident is well-documented by contemporaneous evidence.

In the circumstances, this Court agrees with the trial judge that the Plaintiff in the present case has proved his loss of future earnings on a balance of probabilities.

In the circumstances, there is no sufficient justification for an appellate intervention in the award and quantum of special damages awarded for the Plaintiff’s loss of future earnings.

In conclusion, this Court on 21 August 2023 allowed the Appellant/Defendant’s appeal in part and held that the decision and order dated 6 July 2022 of the Sessions Court in the present case shall be varied as follows:

the award of RM30,000.00 for rotator cuff tear with biceps tendinosis and impingement left shoulder (item 1 of general damages) is set aside;

items 2 to 6 of the General Damages (phalanges in left hand) should be awarded as a single combined item, and the total combined award for the fractures of five (5) phalanges is 29 reduced from the combined total of RM64,000.00 (the sum total of items 2 to 6) to RM30,000.00;

items 8 and 9 of the General Damages (ulna styloid and radius styloid of the left lower arm) should be awarded as a single combined item, and the total combined award for the fractures of the two bones in the left lower arm is reduced from the combined total of RM45,000.00 (the sum total of items 8 and 9) to RM36,000.00; The appeal against the other items of the damages are dismissed.

As a result of subparagraphs 60(a) to 60(c) above, the total quantum of general damages on 100% liability basis is reduced from RM203,000.00 to RM203,000.00 – RM30,000.00 – RM34,000.00 – RM9,000.00 = RM130,000.00.

In the premises, the Appellant/Plaintiff’s appeal is partly allowed with costs of RM3,000, subject to allocator. Dated this : 12th September 2023 Signed ….............................................................. TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Appellant : Samreet Messrs Lovelace & Hastings (Kuala Lumpur)

For the Respondent : Nur Nadiah binti Thamby Subyr Messrs Morthi Segaran & Co. (Seremban)