Foo Swee Peng v Amar Amily Bin Yuzelan (BA-12B-27-04/2025)

learned SCJ dated 25.3.2025 after a full trial. The SCJ had allowed the claim.

I dismissed the appeal. Here are the grounds of my decision. The parties shall be referred to as they were in the court below. Where the Appellant was the Defendant D s were the Plaintiffs. Background facts S/N yexBdsocUWd2iguQpMhw

This appeal arises from a motor vehicle accident that occurred on 26.3.2021. The accident involved a motorcycle ridden by the 1st Plaintiff and pillion by the 2nd Plaintiff P2 ), and a motorcar driven and owned by D.

Following the accident, both Plaintiffs sought general and special damages against D. At the trial, a total of 9 witnesses were called. They were :

PW 1 - Insp. Zharif bin Zakaria, investigating officer.

PW 2 - Dr. Raja Juanita binti Raja Lope, paediatrician.

PW 3 - Dr. Benedict Marius Selladurai, neurosurgeon.

PW 4 - P1.

PW 5 - Suhaidaa binti Ahmed, aunt of P2.

PW 6 - Dara @ Zainab binti Abdul Hamid, grandmother of P2.

PW 7 - Suhaizaa binti Ahmed, mother of P2.

DW 1 - Dr. Mohaneswary Sandrajagran, rehabilitation specialist.

DW 2 - Dr. Ravi a/l Krishnapillai, neurosurgeon.

The SCJ held D wholly liable for the accident and awarded damages in the sum of RM 97,258 to the 1st Plaintiff and RM 675,545 to P2. The detailed breakdown of the award is as follows: DAN ADA LAH DI HAKIMI BAHAWA di atas dasar 100 % liabiliti, tuntutan Plaintif Pertama untuk gantiriugi am dan khas di benarkan dan di taksirkan sebanyak RM 97,258.00 dibenarkan di mana pecahan awad ada lah seperti berikut :

Bagi tuntutan Gantirugi Am, sejumlah RM 96,800.00 di benarkan : 1 Retrograde amnesia and loss of consciousness (RM 8,000 - 15 %) RM 6,800 2 Mild head injury (RM 80,000 - 15 %) RM 68,000 S/N yexBdsocUWd2iguQpMhw 3 Abrasion wounds over left temporal region (1 x 1 cm), left forearm (19 x 5 cm) and left arm (10 x 8 cm), right hand, right toes (1 x 1 cm) 4 Deep laceration wound over left knee (5 x 5 cm) RM 6,000 5 Loculated left lung pneumothorax with left lower lobe lung contusion

Bagi tuntutan Gantirugi Khas, sejumlah RM 458.00 di benarkan : 1 Kos elaun pengangkutan ahli keluarga bagi setiap lawatan di Hospital RM 200 2 Kos rawatan di Hospital Selayang RM 258 3 Kos penjagaan Di tolak DAN ADA LAH JUGA DI HAKIMI bahawa di atas dasar 100 % liabiliti, tuntutan Plaintif Kedua untuk gantirugi am dan khas di benarkan dan di taksirkan sebanyak RM 675,545.00 di benarkan di mana pecahan awad adalah seperti berikut :

Bagi tuntutan Gantirugi Am, sejumlah RM 209,000.00 di benarkan : 1 Moderate Traumatic Brain Injury (RM 160,000 - 15 %) RM 136,000 2 Comminuted fracture of the right frantoparietal bone extending to temporal bone and body of sphenoid bone with depressed RM 30,000 3 Craniotomy surgery (right hemi coronnal & temporoparietal) RM 20,000 4 Kidney contusion 5 Pancreatic injury / contusion S/N yexBdsocUWd2iguQpMhw 6 Multiple abrasion wounds 7 Multiple laceration wounds

Bagi tuntutan Gantrugi Khas, sejumlah RM 466,545.00 di benarkan : 1 Kos elaun pengangkutan pesakit luar RM 500 2 Kos elaun pengangkutan ahli keluarga bagi setiap lawatan di hospital RM 500 3 Kos penjagaan Di tolak 4 Kos rawatan di Regen Rehab Hospital RM 545 5 Kos penjagaan sehingga 18 tahun (RM 1000.00 x 12 bulan x 9 tahun) RM108,000 6 Kos penjagaan selepas 18 tahun (RM 500.00 x 12 bulan x 57 tahun) RM 342,000 7 Kos rawatan dan terapi masa hadapan Di tolak a. Rawatan susulan pakar pediatrik di tolak. b. Rawatan susulan pakar neurologi di tolak. c. Terapi pekerjaan di tolak. d. Terapi pertuturan di tolak. e. Penilaian psikologi & psikiatri di tolak. f. Terapi tingkan laku kognitif di tolak. g. Ubat - ubatan ADHD di tolak. h. Ubat - ubatan untuk epilepsi di tolak. 8 Kos Pendidikan dan pembelajaran RM 15,000 a. Bahan pendidikan khas di tolak. b. Komputer riba sepanjang hayat sebanyak RM 15,000.00. c. Program pemulihan kognitif di tolak. d. Tuisyen khas untuk disleksia dan literasi di tolak. e. Pendidikan khas swasta atau sekolah rumah di tolak. f. Tuisyen akademik khas jangka panjang di tolak. S/N yexBdsocUWd2iguQpMhw

Given that P2 was a minor aged 11 years at the time of trial (born on 4.3.2014), suing through his mother as litigation representative, the SCJ directed, pursuant to Order 76 rule 12 of the Rules of Court 2012, that a portion of the award i.e. a sum of RM 100,000, be deposited into a BSN trust account in P2 attaining the age of majority (18 years).

D has appealed against the decision of the SCJ, challenging only the quantum of damages awarded to P2. As set out in the amended memorandum of a aspects :

Cost of care / supervision up to age 18 amounting to RM 108,000 (RM 1,000 x 9 years);

Cost of care / supervision post - 18 amounting to RM 342,000 (RM 500 x 57 years);

In awarding the cost of care / supervision, the SCJ did not make a one - third deduction for contingencies;

award for cost of care / supervision be deposited with Amanah Raya Bhd was disallowed. Law on appeal

An appellate court will not generally interfere with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its premised on whether there had been no or insufficient judicial appreciation of evidence by the trial court. S/N yexBdsocUWd2iguQpMhw

In Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) [2020] 12 MLJ 67 at 89, the Federal Court said : The Malaysian position has always been that, a decision that is arrived at, due to a lack of judicial appreciation of evidence is plainly wrong. The Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin plainly

In UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 at 800, the Federal Court said : Thus, the prime issue in respect of Questions 1 to 3 is whether the Court of Appeal had erred in interfering with the findings of facts of the trial judge. It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence

In Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 at 12, the Federal Court said : The law on appellate intervention on findings of fact by a trial Judge is trite. In this context it may be useful to refer to the case of Multar v Lim Kim Chet and Anor [1982] 1 MLJ 184; [1982] CLJ 107 (FC), wherein it was held that an appellate court will interfere and disturb the finding of fact by the trial judge if crucial evidence had been misconstrued resulting in the uncertainty on one part - being disregarded. In the Privy Council case of Choo Kok Beng v Choo Kok Hoe and Ors [1984] 2 MLJ 165 it was held that when a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him, it is the plain duty of the appellate court to intervene and correct the error lest otherwise the S/N yexBdsocUWd2iguQpMhw

In MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2015] MLJU 1282, the Court of Appeal said (at page 4 of 15) : appellate court is not at liberty to reverse or interfere in the finding of a trial judge even if the appellate court is clearly of the view that it would not have reached the conclusion the trial judge did on the evidence so long as the findings of the trial judge are plausible on the evidence on record, there is no room for interference merely on the grounds that the appellate court forms a different opinion on the same evidence. [16] There is, however, little room for variation in the application of the principle of intervention when the trial judge is plainly wrong. Appellant courts ought to be consistent in ensuring that appellate intervention only comes about when a trial judge reaches a conclusion which no reasonable judge could have reached. A lack of such consistency in approach would give rise to considerable uncertainty in the practice and

No doubt an appeal is a continuation of the original proceedings by way of a re - hearing. And the appellate court retains the power to scrutinise and re - evaluate the evidence presented at the trial. Nevertheless, an appellate court will not disturb the findings of fact of the trial judge unless it is shown that the judge erred in law, made findings not supported by the evidence adduced, or so fundamentally misdirected himself that no reasonable court, properly directing itself and asking the correct questions, could have arrived at the same conclusion.

In S Quarry Sdn Bhd v Desaru Development Corporation Sdn Bhd & Ors [2019] CLJU 93, the Court of Appeal articulated the S/N yexBdsocUWd2iguQpMhw erroneous or perverse. Namely where the judge :- (a) misdirected himself on the evidence; (b) failed to judicially appreciate the evidence; (c) failed to consider material evidence; (d) acted on irrelevant evidence so as to render the decision wholly erroneous; (e) drew inferences not justified by the facts; (f) misapprehended the facts; or (g) gave reasons that were wholly unsatisfactory or internally contradictory.

Bearing these legal principles in mind, I find that D has failed to satisfy the legal threshold which warrants appellate intervention. In my opinion, the SCJ is not plainly wrong. She had given sufficient judicial appreciation towards the evidence and testimonies adduced during the trial. Thus, I considered appellate intervention to be unwarranted. My reasons are as follows. 1st issue : cost of care prior to age 18

As pleaded in paragraph 1 of the amended memorandum of appeal, D ground concerns the award of care expenses at RM 1,000 per month for 9 years, amounting to RM 108,000, until P2 reaches majority at 18 years. D contends that the SCJ erred in making such an award, alleging that it was contrary to expert evidence and based merely on an unreasonable estimate.

I disagree. D himself had advanced before the SCJ that, should care expenses be allowed, the appropriate sum would be RM 500 per month for 9 years. This submission fortifies that the SCJ a proper evidential basis. As such, the issue of entitlement to cost of S/N yexBdsocUWd2iguQpMhw care / supervision prior to age 18 has effectively been conceded by

The issue, rather, is whether the multiplicand fixed by the SCJ at RM 1,000 per month is reasonable. Or whether the lower figure of RM 500 suggested by D should be adopted.

The evidence of PW5 and PW6 supports the higher figure. PW5 testified that she must care for P2 daily in the evenings and nights after her working hours. PW6 corroborated that P2 remains unable to manage his personal hygiene, engages in hazardous conduct such as playing with fire and knives, and is difficult to pacify during tantrums. These facts demonstrate that the burden of care is substantial, intensive and continuous, far exceeding mere casual supervision.

The courts have recognised the compensable value of care provided by family members to a disabled individual. In Tan Cheong Poh & Anor v. Teow Ah Keow [1996] 3 CLJ 665; [1995] 3 MLJ 89, the Court of Appeal upheld a claim for care expenses by a mother caring for her disabled child. It was held that compensation must reflect the actual value of the services rendered, notwithstanding that they were provided gratuitously.

The Court of Appeal said : mother has been providing her services free of charge to her handicapped daughter but the Courts have always compensated plaintiffs for the true value of the services that the plaintiff . S/N yexBdsocUWd2iguQpMhw

Similarly, in Azizah Abdul Manan & Ors v Dr Norlelawati Ab Latip & Ors [2014] 2 CLJ 44; [2013] MLJU 1614, the High Court affirmed that care provided by family members constitutes a compensable head of damages. The High Court further observed that the cost of employing a domestic helper was approximately RM 1,200 per month (as at more than twelve years ago). This figure was adopted as the benchmark in assessing the appropriate compensation for care expenses.

The High Court said : It is now trite law that damages can be given for services rendered gratuitously by family members like parents or the surviving spouse. A value can be attached to the services and awarded as damages : Marappan Nallan Koundar & Anor v. Siti Rahmah Ibrahim [1990] 1 CLJ 32; [1990] 1 CLJ (Rep) 174; [1990] 1 MLJ 99; Devadass Raju v. Tham Soon Kum [2013] 7 CLJ 178; [2013] 1 MLJ 700. In this regard I agree with learned counsel for the plaintiffs that the court can take judicial notice of the fact that currently the cost of employing a maid including the agency deposit and expenses et cetera can reach RM 1,200 a month. As for the multiplier, the Supreme Court in Chong Pik Sing & Anor v. Ng Mun Bee (supra) held that the mother s services would reasonably be required until the children reach 18 years and this was the basis for arriving at post -

At the time of the accident, P2 was 7 years old and in Standard 1. While PW5 estimated that the financial cost of caring for P2 was approximately RM 500 per month, this figure does not reflect the full extent of the burden. The court would also take into account the expenditure of time, energy and constant supervision. As well as the emotional strain and safety risks occasioned by the moderate traumatic brain injury sustained by P2. S/N yexBdsocUWd2iguQpMhw

It is noteworthy that the statutory minimum wage in Malaysia has risen from RM 1,500 to RM 1,700. Possibly with further increases over the 9 years during which care and supervision expenses have been awarded until P2 attains the age of majority.

In these circumstances, I consider that the multiplicand of RM 1,000 per month fixed by the SCJ is reasonable. It the practical realities of care costs in society. It cannot be described as excessive or unfounded. There is therefore no basis to allege that the SCJ misdirected herself or failed to judicially appreciate the evidence. D has failed to show how the award of RM 1,000 per month constitutes an error warranting reduction to RM 500 per month. 2nd issue : cost of care post - 18

The second ground advanced by D relates to the award of care and supervision expenses in the sum of RM 500 per month for 57 years, totalling RM 342,000, after P2 attains the age of majority. As set out in the amended memorandum of appeal, D canvassed the following arguments :

The SCJ erred in finding that P2 would continue to require care and supervision beyond the age of 18, in alleged contradiction to the available evidence, including the testimony of D rehabilitation expert (DW1). It is argued that the SCJ accorded greater weight to the evidence of the Plaintiffs W2) over the more recent report of DW1.

The SCJ was further (PW6) testimony regarding the need for supervision after bowel S/N yexBdsocUWd2iguQpMhw movements, such evidence being said to conflict with the opinion of P W2). D also submits that the testimony of PW5 and PW6 could only properly support an award of care expenses up to the age of 18 and should not have been relied upon to justify lifelong care.

The SCJ failed to give due consideration to P2 report dated 29.1.2025, which reflected positive academic development and an improved sense of responsibility. D argues this demonstrates that P2 would not require care after reaching 18 years.

The real issue for determination here is whether, on a balance of probabilities, P2 will require lifelong care and supervision notwithstanding his attainment of adulthood. The Federal Court in Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Government of Malaysia & Ors [2016] 2 MLJ 1 held that in assessing prospective or future loss, the applicable standard is the balance of probabilities, albeit at a lower threshold of certainty. The Federal Court remarked that the prospect of future loss must amount to a substantial probability, and not mere speculation.

The following observation by the Federal Court is instructive : standard of proof with regard to the assessment of future loss or damage was on the balance of probabilities but with a lower degree of certainty as to the occurrence of such loss or damage in the future. From the authorities, one could say such a lower degree to be attached semantics, they must also essentially be a substantial one and not S/N yexBdsocUWd2iguQpMhw

In the present case, the evidence of PW2 (paediatrician) and DW1 (rehabilitation specialist) establishes that the moderate traumatic brain injury sustained by P2 has resulted in substantial impairment of cognitive function, communication, and learning capacity. Both experts concurred that P2 presently suffers from intellectual deficits, comparable to that of a much younger child. He is unable to learn at the same level as his peers, thereby necessitating more intensive special education.

Furthermore, both experts confirmed the continuing need for regular speech therapy, occupational therapy and cognitive rehabilitation to address the long - term sequelae of the brain injury. Although such services are available at government hospitals, the frequency of sessions offered is inadequate to achieve optimal recovery. PW2 further highlighted the significant risk of P2 developing seizures (epilepsy) and ADHD, conditions requiring ongoing monitoring by both neurologists and psychiatrists.

As reflected at paragraph 20 of the SCJ grounds of judgment, she found that P2 would continue to require supervision after the age of 18, particularly in matters of financial management and daily living. This finding was grounded in PW 2 inability to read or write.

the SCJ had failed to consider the rehabilitation expert report by DW1 is inaccurate. At paragraph 21 of her grounds of judgment, the SCJ referred to and took into account the evidence of DW1, who likewise confirmed that P2 was at high risk of developing ADHD, which could impair his ability to make independent decisions S/N yexBdsocUWd2iguQpMhw and to maintain consistent employment. The SCJ further emphasised that even after reaching the age of 18, P2 would still require regular medical monitoring to assess his condition and to obtain further treatment as necessary.

in his report stated : need continued paediatric with neuropsychiatry care. As discussed above, children with traumatic brain injury may experience age - related changes and health conditions at an earlier stage of life compared to the general population. This may result in reduced function, decrease in quality of life and increased burden in providing care for his. These changes will need to be monitored and to adjust the rehabilitation program depending on his evolving needs

The evidence of DW1 during cross - examination corroborates the testimony of PW2, in confirming that P2 will continue to require supervision and care beyond the age of 18. : Okay. So, the traumatic brain injury may affect his school performance in near future and also career or job prospects in long run. Correct? Ya. Okay. So, and the person like Qayyum also at risk of having Yes. Okay. According to the Doctor Juanita the risk is about 10 times higher than normal person. Correct? Okay. Do you agree with that? Can be. It s a percentage, yes. Okay. When we mentioned about ADHD, the common scenario is they unable to make a good decision for themselves like Correct? ADHD is more of an attention problem or hyper activeness, yes. They are unable to. So, usually in long run in an adult they were show those who can sustain job in a continuous proper position, S/N yexBdsocUWd2iguQpMhw keep changing switching job that's a common thing that we see in the future. Okay. So, even when the patient have reach his age of majority, I mean more than 18 years old with this kind of condition, I mean that moderate traumatic brain injury with underlying learning disabilities is important even when he reach 18 years old, important to have like schedule appointment to monitor his condition from time to time. Correct? Hmm ... require any medications or medical supervision when he reach 18 years old. Correct? Ya. That's what I mentioned according to the time to monitor the progress.

It seems to me that DW that P2 is capable of living independently after the age of 18. On the contrary, DW1 acknowledged the risks of ADHD, P2 making financial decisions, his inability to sustain consistent employment, and his need for regular medical monitoring. These admissions demonstrate that the SCJ did not misdirect herself. Rather, her findings were consistent with the expert evidence that, on a balance of probabilities, P2 will continue to require special care and supervision into adulthood, as compared to his peers.

Beyond the expert testimony of PW2 and DW1, there was also corroborative evidence from P2 (PW5) and grandmother (PW6), both of whom reinforced PW relation to the need for constant and close supervision.

PW evidence confirms that P2 repeated Standard 2 twice in succession. Behaviourally, he frequently throws tantrums when his wishes are not fulfilled. Although he can sometimes be S/N yexBdsocUWd2iguQpMhw pacified, there are other occasions where he is extremely difficult to calm. This behavioural pattern is indicative of significant cognitive and emotional deficits which necessitate continuous supervision, far beyond the light monitoring suggested by D.

Likewise, PW evidence supports the SCJ finding that P2 requires close supervision notwithstanding his ability to feed himself. PW6 was adamant that P2 is not capable of full self - care. On the contrary, he often engages in hazardous conduct such as playing with fire, knives and kitchen utensils, conduct which plainly demands constant adult supervision. PW6 also testified to the physical and emotional toll of caring for P2 and the safety risks borne by the household. These are material factors which the SCJ properly took into account in making the award for care expenses.

The evidence of PW5 and PW6 establishes that the supervision required for P2 extends beyond daytime hours, continuing into the evening after PW 2 condition necessitates special and continuous care and supervision.

the SCJ ought to have preferred DW report, merely on the basis that it was more recent than PW , is baseless. The Federal Court in Dr Shanmuganathan v Periasamy Sithambaram Pillai [1997] 2 CLJ 153 reiterated that the role of expert evidence is to assist the court in arriving at its own judgment. But the ultimate decision - maker remains the court, not the expert. The court is entitled to assess the reasons advanced by an expert, to reject or accept such views, and ultimately to rely upon the evidence which, in its judicial assessment, is more cogent and defensible on the facts. S/N yexBdsocUWd2iguQpMhw

The Federal Court said : Court to form its own opinion. An expert should give his reasons. The Court is the final arbiter and not the experts or eye - witnesses. Despite the wealth of authorities available on this subject, the errors that appear

To my mind, the SCJ did not err in according greater weight to the evidence of PW2 than that of DW1. PW comprehensive, consistent with the underlying facts and further corroborated by the daily caregivers of P2, namely PW5 (his aunt) and PW6 (his grandmother).

at the SCJ erred by failing to consider P2 progress report dated 29.1.2024 is equally baseless. The report in question, marked as IDD - 12 , was never admitted as evidence at the trial. Accordingly, it carries no probative value, being a document for identification purposes only and not one capable of proving the truth of its contents.

In this regard, the Federal Court in Live Capital Sdn Bhd v Pioneer Conglomerate Sdn Bhd [2025] 6 CLJ 855 reaffirmed the fundamental evidential principle that a document must first be admitted in evidence before its contents may be considered or accorded weight by the court. The Federal Court stressed that a document marked solely for identification cannot be given probative force until the maker of the document is called and the truth of its contents established in court.

The Federal Court said : S/N yexBdsocUWd2iguQpMhw Did the learned JC follow the correct procedure in admitting and marking the two vouchers as exhibits? We think not. The proper procedure was for him to postpone the marking of IDP1 and IDP2 as exhibits P1 and P2 until after the maker or makers of the documents were called to give evidence, which was never done. Until then, the two vouchers should remain as IDP1 and IDP2, i.e. for identification purposes only and not for the purpose of proving the truth of their contents as they were disputed both as to authenticity and contents. But to be fair to the learned JC, having converted IDP1 and IDP2 to exhibits P1 and P2, he did give learned counsel for the appellant the right to documents and to submit on tampering. [30] and P2 which he made clear the respondent still needed to prove although the two documents had been marked as exhibits. But that goes more to the issue of weight rather than to the issue of admissibility. For any weight to be attached to the contents of the documents, the documents must first of all be documents that had properly been admitted in evidence

IDD - 12 school report provides no valid basis to impugn the SCJ The SCJ was correct in assigning no probative weight to that report since it was never admitted into

If D believed that IDD - 12 school report carried material probative value, the proper course was to call its maker as a witness. In the absence of such testimony, the report cannot in law be afforded any weight. In any event, the contents of IDD - 12 do not assist D. While the report indicates that P2 attained TP 2 / TP 6 and TP 4 / TP 6 in certain areas, these levels remain low compared with the maximum TP 6 standard. It bears emphasis that at 10 years old, P2 was still in Standard 2, significantly behind his peers. S/N yexBdsocUWd2iguQpMhw

More importantly, the results in IDD - 12 were assessed within the Special Education Integration Programme (PPKI) framework. They cannot be equated with the achievements of mainstream students. It TP 3 or TP 4 attainment as equivalent to the same levels in the mainstream stream. Were they truly comparable, there would be no rationale for segregating students under PPKI. Accordingly, IDD - 12 does not displace the SCJ 2 continues to require care post - 18.

I accept that P2 ury is permanent, not temporary, with long - term consequences for his cognitive, emotional and social functioning. The risks of seizures, ADHD and severe intellectual limitations establish that he cannot live independently like a normal adult, even after reaching majority. The SCJ 500 per month for 57 years is therefore reasonable, as it reflects P2 lifelong care needs.

In summary, D has failed to show that the award of RM 500 per month for 57 years was a misdirection or excessive. The SCJ supported by both expert and factual witnesses and were reached on a proper balance of probabilities, not speculation.

The settled principle is that appellate intervention is warranted only where there is a misdirection in law, a factual finding unsupported by evidence, a wrong inference drawn from facts, or a conclusion that is unreasonable and unsustainable. None of those elements are present here. No expert has contradicted the need for lifelong care, W expert appeal is thus unmeritorious. S/N yexBdsocUWd2iguQpMhw

The SCJ 2 requires supervision and care beyond 18 is supported by the expert evidence (PW2 and DW1) and family testimony (PW5 and PW6), all pointing to real risks including ADHD, inability to read or write, and impaired daily functioning. This meets the threshold in Inas Faiqah (supra), which requires proof of a real and substantial probability of future loss, not mere speculation.

Accordingly, I conclude that the SCJ - 18 care expenses is proper and consistent with Inas Faiqah (supra). appeal should therefore be dismissed. 3rd issue : Failure to deduct one - third from the cost of care for contingencies

D takes issue with the SCJ - year multiplier, contending that it lacked proper basis. D further complains that no one - third deduction for contingencies of life was applied, which they argue is the usual practice in future heads of claim.

In Bujang bin Mat & Anor v Lai Tzen Hai & Anor [2004] 6 MLJ 376, the High Court outlined five approaches adopted by the courts in determining the appropriate multiplier for future claims. Namely :

A fixed multiplier of 16 years (Marappan & Anor v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99);

A direct multiplier without the 16 - year cap (Zamri Md Som & Anor v Nurul Fitriyaton Idawiyah Nahrawi [2002] 1 CLJ 309); S/N yexBdsocUWd2iguQpMhw

Life expectancy minus age at the time of accident, applied directly as multiplier (Tan Ah Kan v The Government of Malaysia [1997] 2 AMR 1382; Ng Chun Loi v Hadzir & Ors [1993] 1 CLJ 323);

Life expectancy minus age at the time of accident, less one - third for contingencies (Chandra Sekaran a/l Krishnan Nair v Ayub bin Mohamed [1994] MLJU 82); and

Life expectancy minus age at the time of accident, applying annuity tables without any deduction for contingencies (Yu Mea Lian v Government of Terengganu [1997] MLJU 252).

In the present case, the SCJ adopted the third approach. I agree that this was the most appropriate on the facts, namely life expectancy minus the age at the time of the accident, applying a direct multiplier. This is justified as there is no evidence to suggest that P2 expectancy would be diminished.

A deduction for contingencies is also unwarranted, as the practical reality is that the costs of care and living expenses will only increase over time. The value of RM 500 today will not equate to its value in in full to reflect future inflationary pressures.

The SCJ addressed this issue at paragraph 27 of her grounds of judgment, noting that a one - third deduction for contingencies is not appropriate in certain categories of future damages such as S/N yexBdsocUWd2iguQpMhw continuing care. On this aspect, the SCJ relied on Intan Nirwana & Anor v Srimahendran Lingam Maniam [2011] 1 LNS 1698, which

As such, D contention that the SCJ erred in law by omitting a one - third deduction is unsustainable. Both precedent and practice empower the court to adopt the direct multiplier approach without applying a contingency deduction where the factual circumstances warrant it, as here. 4th issue : Application to appoint Amanah Raya Bhd

D argues that the sum of RM 450,000 awarded for care expenses ought to be held by Amanah Raya Bhd. This was on the ground that the litigation representative (P2 was allegedly incapable of properly managing the judgment sum. I consider this reason inadequate.

The litigation representative remains legally valid until there is a court order removing her appointment. In MMIP Services Sdn Bhd v Karthik & Anor [2022] 1 LNS 1135, the High Court emphasised that the appointment of Amanah Raya Bhd can only be considered if there is judgment monies. Such circumstances are absent in this case, more so since P2 supported by his grandmother and aunt (PW5 and PW6). S/N yexBdsocUWd2iguQpMhw

Furthermore, D ter from Messrs Anad Noraini & Co dated 9.6.2025, D % (RM the balance may be released to the Plaintiffs. Among other things, the letter stated - % of the cost of care (RM 450,000 x 30 %) = RM 135,000 will be kept in the stakeholder pending our appeal. The us, this application is misplaced. The principle of approbate and reprobate prevents D from taking contradictory positions merely to serve their own interest.

The Federal Court in Boustead Trading (1985) Sdn Bhd v Arab - Malaysian Merchant Bank Bhd [1995] 4 CLJ 283; [1995] 1 MLRA 738 affirmed that a party who has accepted benefits or made payment under certain terms is bound by its representation, and cannot subsequently adopt a contrary position. This principle applies here.

Accordingly, D the SCJ erred in not directing the judgment sum to be deposited with Amanah Raya Bhd is unfounded. The application ought to be dismissed.

I refer to Muhammad Azham Mohd Rozik v Mohd Fauzi Mustafa & Anor [2025] CLJU 1205. In that case, the High Court upheld the costs be held in the p s client account. The court dismissed both the p the d lication for the monies to be deposited with Amanah Raya Bhd. The court stressed that such an order was a form S/N yexBdsocUWd2iguQpMhw of judicial discretion under Order 94 rule 2 of the Rules of Court 2012 to ensure that the award was properly applied for its intended purpose. However, the court did not direct that the monies be kept with Amanah Raya Bhd.

The High Court said : [63] After considering both parties submissions on this matter, I maintained the order of the SCJ as I believe she had exercised her discretion under O.94 r.2 of the Rules of Court 2012; an order which this Court too would make to ensure that the moneys disbursed would not be diverted for other unrelated purposes. I agreed with the submissions of the Defendants that the award is to be used specifically for the purpose of obtaining, renewals and maintaining the prosthesis limb for the Plaintiff for the remaining period of his life: Khairun Nizad Bin Daud & Anor v. Jurin Paul [2018] MLRHU 120. However, I maintained the order of the SCJ because the Plaintiff is now an adult and it may not be suitable to deposit the amount awarded for the prosthesis with the

While the facts of Muhammad Azham (supra) are distinguishable as they concerned an adult rather than a minor, the underlying principle remains the same. The trial court retains a broad discretion in determining the manner in which judgment sums are to be preserved, provided always that the order safeguards the welfare of the protected party.

In the present case, the SCJ exercised that discretion pursuant to Order 76 of the Rules of Court 2012 by directing that a portion of the award, namely RM 100,000, be placed into a BSN trust account in P2 S/N yexBdsocUWd2iguQpMhw

This order is consistent with the approach endorsed in Muhammad Azham (supra). Which is to ensure that the award serves its intended welfare purpose without the necessity of transferring the entirety of the sum to Amanah Raya Bhd. The SCJ

Accordingly, D J ought to have directed deposit of the judgment sum with Amanah Raya Bhd is without merit. The SCJ properly exercised her judicial discretion in accordance with law and in line with contemporary practice.

At the appeal before me, D filed a notice of application vide Enclosure 3 dated 21.4.2025. D sought for a similar order that the judgment sum be placed into Amanah Raya Bhd. D says that the SCJ has no jurisdiction to order that the judgment sum be placed into Amanah Raya Bhd.

Nevertheless, for the same reasons as above, I dismissed Enclosure

I also took into account that the fees, costs and expenses of Amanah Raya Bhd would be deducted from the judgment monies and ultimately borne by P2, as reflected in prayer 4 of Enclosure 3. That would be prejudicial to P2. Respondents cross - appeal

Separately, as per the notice of cross - appeal vide Enclosure 8 dated 13.5.2025, the Plaintiffs have cross - appealed against the SCJ s decision in rejecting P2 expenses. S/N yexBdsocUWd2iguQpMhw

D raised a preliminary objection to the filing of the cross - appeal. position is that the notice of appeal was filed only in relation to the issue of supervision and care costs. However, the Plaintiffs raised in the cross - appeal issues unrelated to D . To wit, rehabilitation costs, which have no connection with the care cost issue.

I agree with D and struck out the cross - appeal. In doing so, I rely on the Federal Court case of Kabushiki Kaisha Ngu v Leisure Farm Corp Sdn Bhd & Ors [2016] 5 MLJ 557, and the Court of Appeal case of Tetuan Khana & Co (sued as a firm) v Saling bin Lau Bee Chiang & other appeals [2019] 3 MLJ 1.

In conclusion, D has failed to demonstrate that the SCJ was plainly wrong in arriving at her decision warranting appellate intervention. I therefore dismissed the appeal. I made no order as to costs, in view that the - appeal were both unsuccessful. Dated 17 November 2025 QUAY CHEW SOON Judge High Court of Malaya Shah Alam, Selangor Civil Division NCvC 11 S/N yexBdsocUWd2iguQpMhw Counsel for the Appellant : Visvanathan a/l S. Somasundaram (Messrs Anad & Noraini) Counsel for the Respondents : Md Sofie bin Teguh (Messrs G Dorai & Co.)

Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased [2020] 12 MLJ 67 2. UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 3. Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 4. MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2015] MLJU 1282 5. S Quarry Sdn Bhd v Desaru Development Corporation Sdn Bhd & Ors [2019] CLJU 93 6. Tan Cheong Poh & Anor v. Teow Ah Keow [1996] 3 CLJ 665; [1995] 3 MLJ 89 7. Azizah Abdul Manan & Ors v Dr Norlelawati Ab Latip & Ors [2014] 2 CLJ 44; [2013] MLJU 1614 8. Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Government of Malaysia & Ors [2016] 2 MLJ 1 9.

Dr Shanmuganathan v Periasamy Sithambaram Pillai [1997] 2 CLJ 153

Live Capital Sdn Bhd v Pioneer Conglomerate Sdn Bhd [2025] 6 CLJ 855 Bujang bin Mat & Anor v Lai Tzen Hai & Anor [2004] 6 MLJ 376

Marappan & Anor v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99

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

Tan Ah Kan v The Government of Malaysia [1997] 2 AMR 1382; Ng Chun Loi v

Hadzir & Ors [1993] 1 CLJ 323

Chandra Sekaran a/l Krishnan Nair v Ayub bin Mohamed [1994] MLJU 82

Yu Mea Lian v Government of Terengganu [1997] MLJU 252

Intan Nirwana & Anor v Srimahendran Lingam Maniam [2011] 1 LNS 1698

MMIP Services Sdn Bhd v Karthik & Anor [2022] 1 LNS 1135 Boustead Trading (1985) Sdn Bhd v Arab - Malaysian Merchant Bank Bhd [1995] 4 CLJ 283; [1995] 1 MLRA 738 S/N yexBdsocUWd2iguQpMhw

Muhammad Azham Mohd Rozik v Mohd Fauzi Mustafa & Anor [2025] CLJU 1205

Kabushiki Kaisha Ngu v Leisure Farm Corp Sdn Bhd & Ors [2016] 5 MLJ 557

Tetuan Khana & Co (sued as a firm) v Saling bin Lau Bee Chiang & other appeals [2019] 3 MLJ 1

Order 76 rule 12 and Order 94 rule 2 of the Rules of Court 2012 S/N yexBdsocUWd2iguQpMhw