Devarajan A/L Kunasekaran v Leon Ngim Chong (BA-12B-59-09/2023)

This is the Appellant/Plaintiff’s appeal against the decision of the learned Sessions Court Judge (SCJ) on quantum after a full trial.

For ease of reference, parties would be referred to as they were at the Court below.

This appeal arises from a personal injury claim where the Plaintiff, Devarajan a/l Kunasekaran, sought higher compensation for the damages awarded by the learned SCJ in relation to injuries sustained in a road traffic accident. The learned SCJ awarded RM149,000.00 in general damages (subject to a 10% deduction for overlapping injuries) and dismissed certain claims, including loss of consciousness and aspects of special damages. Dissatisfied, the Plaintiff appealed the quantum of damages, contending that the amounts awarded were manifestly inadequate.

The Defendants contended that the awards were reasonable, aligned with legal principles, and substantiated by evidence. After considering the submissions of both parties and examining the evidence in its entirety, this Court finds no error in the Sessions Court’s assessment and therefore dismissed the appeal. My reasons are stated below.

On 17 May 2020, the Plaintiff was involved in a motor vehicle collision caused by the First Defendant, with the Second Defendant being the owner of the vehicle. Liability was agreed at 90% against the Defendants and 10% against the Plaintiff.

The Plaintiff suffered multiple injuries, including: a. Severe head injury with intracranial bleeding and cerebral oedema. b. Multiple facial fractures involving the zygoma, maxilla, mandible, and orbital floor. c. Left lunate dislocation and ulna styloid fracture. d. Lacerations, abrasions, and scarring.

The Plaintiff argued that the amounts awarded for these injuries, as well as his claims for loss of earnings and special damages, were inadequate and failed to consider the full extent of his suffering and economic loss.

I am reminded that an Appellate Court should be slow in interfering with a finding of fact by a trial court (see: Sornaratnam & Anor v Ramalingam [1981] 1 MLJ 24; Privy Council case of Tan Chow Soo v Ratna Ammal [1969] 2 MLJ 49; China Airlines Ltd. v Maltran Air Corp Sdn. Bhd. (formerly known as Maltran Air Services Corp Sdn. Bhd.) and another appeal [1996] 2 MLJ 517; Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209 at 211.

The principles governing the appellate court’s interference with the trial court’s findings as enunciated in Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 is particularly useful here. The Court of Appeal held: “It is trite law that this court will not readily interfere with the findings of fact arrived at by the court of first instance to which the law entrusts the primary task of evaluation of the evidence. But we are under a duty to intervene in a case where, as here, the trial court has so fundamentally misdirected itself, that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. In a case such as this where the task of the court is to determine where the probable truth of the case lies, one can do no better than to recall to mind the words of Viscount Simon (who was in the majority) in The ‘Eurymedon’ (1942) 73 Lloyd LR 217: The appellants, therefore, start in this House under the considerable handicap that there are concurrent findings of fact against them. [Which, we hasten to add, is not the case here.] I am far from saying that in these circumstances the House has no jurisdiction to allow the appeal, but it would need very clear and convincing reasoning to justify us in overthrowing what has already been decided. If it could be shown that the course of events affirmed by the learned judge could not have occurred, that would be an excellent reason for reversing his view – in these mundane happenings there is no more conclusive argument than non est credendum quia impossibile. If the impeached decision were shown to be an unwarranted deduction based on faulty judicial reasoning from admitted or established facts, that might lead to its reversal. If there were so overwhelming a body of valid testimony for the view that has been rejected that a reasonable man would feel bound to accept it, the appeal would succeed.” [emphasis added]

An assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge’s findings on a question of the amount of damages. Before intervening in an award of damages, the Court must be satisfied that the judge has acted on a wrong principle of law, has misapprehended the facts, or has for these other reasons, made a wholly erroneous estimate of the damage suffered.

The legal principles applicable to an appeal against quantum are established in the case of Mahmod Bin Kailan v. Goh Seng Choon & Anor [1976] 2 MLJ 239. The Federal Court stated: “The principle upon which we can interfere with the award has been stated by Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, 616, 617 as follows: “Where the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer L.J. in Flint v. Lovell. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.” [emphasis added]

The Federal Court in Topaiwah v Salleh [1968] 1 MLJ 284 held: “The difficulty of laying down the principles on which damages are awarded has frequently been recognized. However, as Lindley L.J. in Rodocanachi Mibburn Brothers

18 QBD 67 78 stated: – “It must be remembered that the rules as to damages can in a nature of things only be approximately just, and that they have to be worked out, not by mathematicians, but by juries." Or another way of putting it – that it is a matter of assessment but not of calculation. So far as this court is concerned we should, to paraphrase Greer L.J. in Flint Levell [1935] 1 KB 354 360 be disinclined to reverse the finding of a trial judge as to the amount of damages merely because we think that if we had tried the case in the first instance we would have given a lesser sum. To justify reversing him, we should be convinced that he acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate of the damage. The assessments which the courts have made over the years form some guide to the kind of figure which is proper and which the appellate court will follow in the light of the special facts of each particular case. In this case, according to the medical evidence, not only would the plaintiff be unable to work any longer as a coconut plucker, but his knee injury would be permanent, his left arm deformed, and he would from now on walk with difficulty.” [emphasis added]

The trial judge’s findings should not be overturned simply because the appellate court might believe that they would have awarded a lesser amount had they presided over the initial trial. In Goo Sing Kar v Dato’ Lim Ah Chap & Ors. [2013] 3 MLJ 374, the Court of Appeal said that: “… [29] Two preliminary matters require to be stated at the outset. First, the subject matter of the appeal concerned damages and its quantum, and therefore the principle that the court will be disinclined to reverse the finding of the trial judge as to the amount of damages should apply. The findings of the trial judge should not be reversed merely because the appellate court might be of the opinion that if they had tried the case at first instance they would have given a lesser sum. Counsel for the respondents, Dato' Cyrus V Dass, cited the oft-quoted statements of the Federal Court in Topaiwah v Salleh [1968] 1 MLJ 284, reading: In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled. … [32] Thus, for the appellant to succeed he must show either

the trial judge has acted on some wrong principle of law, or (b) the trial judge has made an entirely erroneous estimate of the damages in the sense that it is so extremely high or so very small.” [emphasis added]

The High Court in Kovalan Rajoo v Hanif Muhamad Pauzi [2016] 2 CLJ 965 held that: “[12] In light of the above Federal Court’s decisions, the legal proposition in an appeal against an award for damages could be surmised as follows: i) The onus on an appellant is a heavy one; ii) The appellant must satisfy the appellate court: a. That the trial judge acted on a wrong principle of law; or b. The damages awarded is so extremely high or low to make it an entirely an erroneous estimate of damages, in other words, it is plainly unreasonable; or c. The trial judge omitted to consider some relevant materials or admitted some irrelevant considerations, resulting in the award of damages being wholly inaccurate. In other words, if the trial judge had considered the relevant materials or did not take into consideration the irrelevant considerations, the trial judge would have come to an award entirely different from the one he had awarded. iii) The award of damages in each case stands by itself; iv) It is not enough for the appellant to show there is a balance of opinion or preference. [13] The mere fact that one judge’s award is different from another judge’s award does not form as a basis for an appellate court to disturb the award of damages by the lower court. The award of damages in every case stands by itself – it depends on the age, sex and degree of injury and the chances and degree of recovery as well. Occasionally, it also depends on the available options for medical treatments. [14] A compendium is merely a compilation of information on court awards of damages. The information in the compendium may indicate the trend of the award of damages for similar injuries. Having said that, an award of damages outside the range found in the compendium is not necessarily a reason for the appellate court to disturb the award of damages. The appellate court will only disturb the trial judge’s award of damages if and only if the trial judge’s award of damages is so very wrong or seriously wrong that no reasonable judge would have awarded the amount for the same set of facts. [15] An award of damages leaning to one end of the scale found in a compendium does not tantamount to an award that is very wrong or seriously wrong; it is merely the exercise of the trial judge’s discretion. This does not form a basis for an appellate court to interfere with the discretion of the trial judge. The compendium’s scale should not be used as a basis for an appeal against the exercise of the judge’s discretion in deciding the award for damages. [16] The appellate court should not interfere with the exercise of discretion by the trial judge unless the award of damages is so very wrong or seriously wrong that it is plainly unreasonable. … [27] An appellate court should only entertain an appeal where the appeal is premised on the principles of law for an appeal against the award of damages. It should not be based on what is or is not fair to the party who has appealed against the decision of the trial judge.” [emphasis added]

Therefore, based on the authorities discussed above, it is evident that the Plaintiff bears the burden to satisfy this Court that the learned SCJ had acted on a wrong principle of law, omitted relevant materials, admitted irrelevant considerations, or awarded an amount so extremely low that it constitutes an entirely erroneous estimate of damages.

It is trite law that appellate intervention is warranted if the trial judge failed to evaluate the evidence and issue before him in its entirety and made bare findings of fact with no justifiable reason to substantiate them (MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428). Upon perusal of the Record of Appeals and having considered the written and oral submissions by the parties, I find an appellate intervention is not warranted in this appeal. My reasons are as follows.

I have reviewed the evidence and the written Grounds of Judgment by the learned SCJ and find that the learned SCJ has decided based on the evidence before the Court. The learned SCJ has not acted on a wrong principle of law, has not misapprehended the facts, and neither has he for these other reasons made a wholly erroneous estimate of the damage suffered. Based on the evidence before the Court, I find the damages awarded are reasonable and not too low.

The Plaintiff argued that the learned SCJ erred in dismissing his claim for loss of consciousness. He relied on medical reports from Banting Hospital and the University of Malaya Medical Centre (UMMC) indicating intubation as evidence of unconsciousness. He submitted that intubation is a procedure necessitated by a lack of spontaneous breathing or consciousness. The Plaintiff further asserted that this injury was corroborated by multiple medical reports and should either be separately compensated or included under the severe head injury award. The Plaintiff cited Lee Meng Jun v Abd Rahman bin M Harun & Anor [2022] MLJU 3338, which involved compensation for loss of consciousness.

The Defendants contended that the medical evidence was inconsistent and that unconsciousness was not explicitly documented in the initial reports from Banting and Klang Hospitals. The Defendants highlighted that the learned SCJ had correctly applied the case of Lee Meng Jun v Abd Rahman bin M Harun & Anor (supra) which held that loss of consciousness is not compensable separately when it is part of a head injury.

This Court agrees with the Sessions Court’s dismissal of the claim for loss of consciousness. While intubation is often indicative of unconsciousness, the medical records provided by the Plaintiff lacked consistency. Initial reports from Banting Hospital and Klang Hospital did not confirm unconsciousness, and later reports were speculative.

This Court also agrees that Lee Meng Jun supports the principle that loss of consciousness is not a distinct injury for compensation when it forms part of a head injury. The learned SCJ had correctly incorporated any impact of unconsciousness into the general award for the severe head injury.

The Plaintiff contended that the awards of RM5,000.00 for multiple lacerations and RM2,000.00 for multiple abrasions were inadequate. He emphasised that his injuries included-a. a deep laceration over the right forearm. b. a laceration over the left forehead measuring 3 cm. c. a through-and-through laceration wound over the right mandible.

The Plaintiff relied on precedents amongst others, Yuvendran a/l Saravanan v Mohd Farizad bin Hassan & Anor [2019] 1 PIR [20], where RM8,000.00 was awarded for a single deep laceration, and Nik Shamerul Hafizi bin Nik Mazlan & Anor v Khairulanwar bin Nawi & Anor [2020] MLJU 2331, which involved RM6,000.00 for multiple deep lacerations.

The Defendants argued that the awards were appropriate and consistent with the Revised Compendium of Awards.

The lacerations and abrasions suffered by the Plaintiff, while painful, were appropriately compensated at RM5,000.00 and RM2,000.00 respectively. This Court finds that the said awards were consistent with comparable cases and the Revised Compendium of Awards. The Plaintiff’s cited cases involved more severe injuries or additional factors, making them distinguishable.

The Plaintiff contended that the RM40,000.00 awarded for severe head injury was insufficient, particularly in light of the following: a. He suffered intracranial bleeding and cerebral oedema, with a Glasgow Coma Scale (GCS) score of 8/15. b. Comparable cases, such as Khairulanwar bin Hamid (seorang kanak-kanak yang belum dewasa mendakwa melalui sahabat wakil dan bapanya yang sah iaitu Hamid bin Sukardi) v Ganeswari a/p Muniyandi & Anor [2020] 1 PIR [6], awarded RM120,000.00 for similar injuries. c. The Sessions Court misinterpreted the GCS as evidence of prolonged unconsciousness rather than a numerical system assessing the severity of head injuries.

The Plaintiff submitted for the amount of RM120,000,00 for the severe head injury he had suffered.

The Defendants maintained that RM40,000.00 was appropriate, as the Plaintiff did not suffer residual impairments such as memory loss or personality changes.

Furthermore, the learned SCJ had the opportunity to observe the Plaintiff during his oral testimony personally. It was noted that the Plaintiff responded to all questions posed during the examination with full coherence, demonstrated clear recollection of past events, and was able to narrate them without difficulty.

This Court agrees that the RM40,000.00 award was reasonable, given the absence of residual impairments. The Plaintiff’s reliance on Khairulanwar bin Hamid (seorang kanak-kanak yang belum dewasa mendakwa melalui sahabat wakil dan bapanya yang sah iaitu Hamid bin Sukardi) v Ganeswari a/p Muniyandi & Anor (supra) was misplaced, as the injuries in that case were more severe and included skull fractures.

The Plaintiff claimed that RM60,000.00 was insufficient given the complexity and extent of his facial injuries. He relied on Muhammad Zahier bin Rahmat v Weng Yew Min [2021] 1 PIR [4]. Based on the said authority, the Plaintiff argued that RM100,000.00 be awarded for the said injuries.

The Defendants contended that RM60,000.00 was reasonable, citing cases amongst others, Ridhwan bin Ahmad v Lee Yin Liang & Anor [2022] MLJU 1102, where RM40,000.00 was awarded for multiple facial bone fractures.

This Court finds that the RM60,000.00 award was appropriate and consistent with comparable cases, considering the nature of the injuries and the absence of significant residual deformities.

The Plaintiff sought additional awards for special damages, arguing that the learned SCJ erred in dismissing actual loss of earnings, loss of future earnings and pain and suffering for future treatment.

The Plaintiff contended that the learned SCJ erred in calculating his actual loss of earnings, particularly by failing to include his monthly allowances as part of his salary. He submitted that-a. prior to the accident, he was employed as a supervisor at Sivakumar Transport, earning RM2,200.00 per month, inclusive of allowances. b. due to the accident, he was unable to work from 17 May 2020 until the time of his testimony in February 2023. c. his employer confirmed in evidence that he had not received any wages since the accident and that he was unable to perform his previous job duties. d. the learned SCJ, however, only awarded loss of earnings based on a salary of RM1,700.00 per month, excluding his allowances. e. the Plaintiff maintained that allowances should be considered part of his earnings, as they were consistently paid to him every month. f. he argued that the learned SCJ erred in limiting the period of lost earnings to one month based solely on his medical certificate (MC). He contended that the MC duration should not be the only determining factor, as his injuries prevented him from working for a much longer period. g. he sought a total of RM72,600.00 for actual loss of earnings, calculated as follows: i. RM2,200.00 per month × 33 months (from May 2020 to February 2023) = RM72,600.00.

The Defendants opposed the Plaintiff’s claim for actual loss of earnings, arguing that- a. special damages must be strictly proven, and the Plaintiff failed to produce sufficient evidence to support his claim for RM2,200.00 per month. b. the learned SCJ correctly limited the award to RM1,700.00 per month based on the Plaintiff’s official salary records. c. the Plaintiff failed to provide documentary proof, such as pay slips or employer records, showing that his allowances were consistently part of his monthly income. d. the Court was correct in restricting the award of lost earnings to one month, as this was the only period for which the Plaintiff had an official MC.

This Court finds that the Sessions Court’s award of RM1,700.00 per month was appropriate and justified. The Plaintiff failed to provide sufficient documentary proof that his allowances were an integral part of his fixed salary. Loss of earnings must be strictly proven, and the court was correct in relying on the confirmed salary figure rather than an unverified claim of additional allowances.

Additionally, the Plaintiff’s claim for 33 months of lost earnings is unsustainable. The only medical evidence supporting his incapacity to work was a one-month MC. The burden was on the Plaintiff to provide further medical certification proving that he was unable to work beyond that period. Since he did not do so, the Sessions Court was correct in restricting the award to one month.

The Plaintiff also claimed that he had suffered a loss of future earnings due to his inability to return to his previous job. He argued that-a. his employer (SP1) testified that the Plaintiff could not resume work as a supervisor at Sivakumar Transport because his injuries rendered him physically unfit for the job. b. his job scope involved physical tasks such as refuelling trucks, supervising sand mines, transporting spare parts, and handling driver payments. c. the Specialist Medical Report indicated that he was only suitable for sedentary work, meaning he could not continue working in his previous position. d. the Sessions Court erred in rejecting his claim for future loss of earnings despite clear evidence from his employer that he could no longer work in the same capacity. e. the Plaintiff relied on Irwanbudiana bin Amsah (suing as the administrator of the estate of Muhammad Uwais Bin Irwanbudiana, deceased) v The Government of Malaysia [2022] MLJU 3207, where the court held that unchallenged evidence should be accepted as true. f. based on the testimony of his employer and medical evidence, he sought RM349,800.00 for future loss of earnings, calculated as follows: i. RM2,200.00 per month × 159 months = RM349,800.00 (multiplier: 16).

The Defendants argued that the Plaintiff’s claim for future loss of earnings was speculative and unsubstantiated. They contended that-a. the burden of proving future loss of earnings was on the Plaintiff, but he failed to provide sufficient medical evidence that he was permanently unable to work. b. the Specialist Medical Report only stated that he was fit for sedentary work but did not conclude that he was incapable of gainful employment. c. his employer’s testimony that the Plaintiff could not return to his job was not conclusive, as it only reflected the employer’s personal assessment, not a professional medical evaluation. d. the Defendants referred to the Court of Appeal decision in the case of Sumarni v Yow Bing Kwong & Anor [2008] 1 MLJ 608 whereby it was decided that the Plaintiff must prove that there is real and substantial loss with reasonable certainty that the Plaintiff would be unable to secure a job in the future. In this case, the Plaintiff had failed to prove that the Plaintiff can never be gainfully employed again.

This Court finds that the Plaintiff’s claim for RM349,800.00 in future loss of earnings lacks sufficient supporting evidence. The Specialist Medical Report stated that the Plaintiff was fit for sedentary work, indicating that he was not completely incapacitated.

The employer’s testimony that the Plaintiff could not return to his job does not establish that he was permanently unemployable. The employer’s opinion is not a substitute for medical evidence. There was also no evidence that the Plaintiff had attempted to seek alternative employment within his physical limitations.

For these reasons, I find the Sessions Court was correct in dismissing the claim for future loss of earnings. Pain and suffering for future treatment

The Plaintiff contended that the Sessions Court’s award of RM8,000.00 for pain and suffering associated with future surgery was inadequate. He argued that-a. his injuries required additional medical treatment and corrective surgical procedures, as indicated in his medical reports. b. the Specialist Medical Report recommended follow-up treatments and potential surgical intervention, which would result in additional pain and suffering. c. the Courts have previously awarded higher amounts for pain and suffering linked to future surgeries where medical evidence established the necessity of additional medical intervention.

The Plaintiff sought a higher award, arguing that RM8,000.00 did not adequately reflect the suffering he would endure from future medical procedures.

The Defendants argued that the Sessions Court’s award of RM8,000.00 for pain and suffering for future surgery was reasonable and should not be disturbed. The Sessions Court exercised its discretion judiciously in awarding RM8,000.00, which was a fair and reasonable sum given the lack of conclusive medical evidence supporting the certainty and severity of future surgical intervention.

This Court finds that the learned SCJ was correct in awarding RM8,000.00 for pain and suffering associated with future surgery. The medical report provided some indication that the Plaintiff may require further treatment, but it did not establish with certainty that surgical intervention was necessary. The burden was on the Plaintiff to prove, on a balance of probabilities, that future surgery was inevitable and would cause significant pain and suffering.

While the learned SCJ accepted that some future medical treatment was likely, the learned SCJ exercised its discretion in awarding RM8,000.00, which is a reasonable sum given the evidence presented. The award is consistent with judicial principles requiring compensation to be based on proven injuries and anticipated suffering, rather than mere speculation.

Accordingly, the award of RM8,000.00 is upheld.

I find no error in the findings of the Sessions Court based on the evidence presented at the trial.

As a trial judge the learned SCJ, made the findings based on the evidence before the court. The learned SCJ also explained how he derived the decision, which I find no error in his explanation.

As the trial judge has the benefit of first-hand audio visual of the evidence, demeanour and credibility of the witnesses, the factual findings made by the trial judge should not be disturbed unless there is clear misdirection by the trial judge. Having read the Grounds of the learned SCJ, I find no such misdirection in his evaluation of evidence.

Having considered the evidence in its entirety, I find the learned SCJ had not erred in facts and law in making his findings and decisions on issues raised in this appeal. I find there were no substantial and compelling reasons for this Court to disagree with the said findings.

For the reasons stated above, I, therefore, ordered that the Plaintiff’s appeal be dismissed with costs of RM10,000.00 to the Defendants. Dated: 19 March 2025 -sgd-JAMHIRAH ALI JUDGE High Court of Malaya at Shah Alam (NCvC 1) To the parties’ solicitors: For the Appellant : Dato’ Amarjit Singh (Messrs Darshan Syed Amarjit & Partners) For the Respondents : Giri Raj (Messrs Kalai & Partners)