Harta Pesaka Mohammad Shazrin Bin Hassan v 1. ) XXXX (BL-12B-15-08/2024)

SARANYA A/P MAHENDRAN (Seorang di bawah umur dan membawa tindakan ini melalui ibu yang sah serta sahabat wakil iaitu Plaintif Kedua)

NAGA CHITTRA A/P RAJAGOPAL ...RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI KLANG DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN NO. BL-A53KJ-120-03/2018

SARANYA A/P MAHENDRAN (Seorang dibawah umur dan membawa tindakan ini melalui ibu yang sah serta sahabat wakil iaitu Plaintif Kedua)

NAGA CHITTRA A/P RAJAGOPAL ...PLAINTIF-PLAINTIF

KAPAR FLORIST ENTERPRISE ...DEFENDAN-DEFENDAN) GROUNDS OF JUDGMENT INTRODUCTION [1] For ease of reference of this appeal, parties will be referred to as they were in the proceedings before the Sessions Court. [2] This is an appeal filed by the $ 1^{\mathrm{st}} $ Defendant against the decision of the Sessions Court Judge ("SCJ") on 30.7.2024 in allowing the Plaintiffs' claim with costs. Nevertheless, the appeal is only on the quantum of damages. [3] As a brief background, on 5.8.2014, a road accident occurred near Persiaran Hamzah Alang, Klang, Selangor involving three vehicles-

motorcycle No. ACH 9710 ridden by Mahendran a/l Narasimaloo ("Mahendran");

motorcycle No. BMN 6259, owned and driven by the $ 1^{\mathrm{st}} $ Defendant; and

lorry No. BMF 8278 driven by the $ 2^{n d} $ Defendant and owned by the $ 3^{r d} $ Defendant. [4] At all material times, the $ 1^{\mathrm{st}} $ Plaintiff was a pillion rider on the motorcycle ridden by her father, Mahendran. [5] As a direct result of the accident, the $ 1^{\mathrm{st}} $ Plaintiff sustained severe bodily injuries. [6] On 30.8.2023, the parties agreed to a liability apportionment of 90% against the 1 $ ^{st} $ Defendant and 10% against the 2 $ ^{nd} $ and 3 $ ^{rd} $ Defendants. This agreement adopts the liability findings from the related dependency claim in Suit No. A53KJ-120-03/2016 which were affirmed by the Court of Appeal on 7.4.2021 upholding the Klang Sessions Court's decision on liability. Concurrently, the Plaintiffs entered a consent order with the 2 $ ^{nd} $ and 3 $ ^{rd} $ Defendants where the latter agreed to pay a global sum of RM800,000.00 representing their 10% liability. [7] On 30.7.2024, the learned SCJ awarded damages to the Plaintiffs at '100% liability' as follows:

RM210,000.00 for general damages; and

RM6,912,460.00 for special damages. THE ROLE OF THE APPELLATE COURT IN HEARING AN APPEAL [8] In the oft-quoted case of Goh Bak Ming v. Yeoh Eng Kong & Other Appeals [2019] 1 CLJ 461; [2019] 3 MLRA 56, Vernon Ong Lam Kiat JCA (as he then was) speaking for the Court of Appeal held that the appellate court should not interfere with the finding of the court below unless that court is shown to be plainly wrong in arriving at its decision or there has been no or insufficient judicial appreciation of the evidence (see also Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857 and Lee Ing Chin v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97). [9] In Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court vide Azahar Mohamed FCJ (later CJM) reiterated the principle on appellate intervention as follows at p.476: [60] It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 2 MLJ 1 (at p.10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p.800: 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. (See Chow Yee Wah & Anor v. Choo Ah Pat [1978] 1 LNS 32; Watt v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309). [10] In light of the above, it is incumbent upon this Court, as an appellate court to evaluate whether the $ 1^{\mathrm{st}} $ Defendant has succeeded in establishing that the SCJ was plainly wrong in arriving at her decision. THE APPEAL [11] In the notice of appeal, the $ 1^{\mathrm{st}} $ Defendant submits that the SCJ's decision on quantum of damages must be set aside on the following grounds:

the learned SCJ erred in law by awarding the cost of a medical device known as Myoelectric powered Orthosis 2 ("MyoPro2") notwithstanding that the device is unregistered under the Medical Device Act 2012 ("MDA") thereby rendering its use unlawful; and

the learned SCJ erred in awarding damages for scarring, brachial plexus injury and trauma as the sums granted are excessive and significantly "exceed established judicial precedents". AWARD FOR SPECIAL DAMAGES purchase cost of the MyoPro2 device [12] In the Memorandum of Appeal, the $ 1^{\mathrm{st}} $ Defendant avers that the learned SCJ erred in law by awarding the cost of RM6,906,760.00 for the MyoPro2 device despite the device is unregistered under s. 5 of the MDA read together with para 3 of the Medical Device (Exemption) Order 2024 ("2024 Exemption Order"). [13] The 1st Defendant contends that even if the MyoPro2 device is qualified for an exemption for the 1st Plaintiff's personal use, the Plaintiffs failed to obtain such exemption from the Medical Device Authority. The 1st Defendant submits that under para 3(2)(b) of the 2024 Exemption Order, securing an official exemption is a strict statutory condition precedent before any claim for procurement costs can be legally sustained. Consequently, the court ought not to have allowed the claim for the MyoPro2 device as the Court cannot be party or pari delicto to an illegality. By awarding the purchase cost of the MyoPro2 device despite the Plaintiffs' total noncompliance with the mandatory statutory framework, the learned SCJ fell into plain wrong. [14] The $ 1^{\mathrm{st}} $ Defendant further relies on the case of Mohd Azzeli Bin Hussain v. Tan Chee Chuan Fruits Supply & 2 Ors. [2023] CLJU 1519 [2023] 1 LNS 1519 where the similar issue was deliberated. In that case Leong Wai Hong JC (as he then was) dismissed the claim for the cost of purchasing a Genium X3 prosthetic device on the ground that it was not approved and registered under the MDA. [15] The Plaintiffs, conversely, refer to the landmark decision of the Federal Court in AmGeneral Insurance Bhd v. Sa'amran Atan [2022] 8 CLJ 175; [2022] 5 MLJ 825; [2022] 6 AMR 1, where the apex court held that ss. 91(3) and 96(1) of the Road Transport Act 1987 ("RTA") impose a statutory duty on the insurer to satisfy any judgment or order granted by the court. [16] Consequently, the Plaintiffs assert that by virtue of ss. 91(3) and 96(1) of the RTA, compliance with the MDA is irrelevant and unnecessary to the insurer's liability to bear the cost of the MyoPro2 device as ordered by the SCJ. The Plaintiffs further submit that the court is duty-bound to determine what is necessary for the $ ^{1st} $ Plaintiff's well-being under the RTA without being hindered by the MDA regulations. [17] The Plaintiffs also cite the case of Mohd Sidik bin Muhanad Ketar v. Zainal Hazril bin Zainal Mokhtar & Anor [2022] CLJU 1248; [2022] MLJU 1186 where Muniandy Kannyappan J (now JCA) allowed the cost of purchasing a Myopro2 device on the ground that the device was medically proven to be suitable and befitting for the plaintiff to return to his normal life. [18] On the requirement of exemption under the MDA, the Plaintiffs contend that the MyoPro2 device qualifies for an exemption under the 2024 Exemption Order as the device was endorsed by Ashutosh Gewande ("SP2") who is a qualified prosthetist and orthotist. Thus, the MyoPro2 device satisfies the requirement under para 3 of the 2024 Exemption Order concerning medical devices for personal use. Thus, there is no statutory requirement for the $ ^{1st} $ Plaintiff to obtain an exemption under the MDA to purchase the MyoPro2 device for her personal use. [19] As for the learned SCJ, she was of the view that the RTA provisions take precedence over the administrative requirements and regulatory frameworks of the MDA. Furthermore, she opined that the MDA applies exclusively to manufacturers and wholesalers engaged in import, export or distribution of medical devices and excludes individual users like the $ 1^{\mathrm{st}} $ Plaintiff. Hence, individual users may import or purchase a medical device under the personal use framework. [20] At this junction, there are two issues to be decided-

whether the Plaintiffs have to secure an official exemption under the MDA before claim for procurement of the MyoPro2 device can be allowed; and

whether provisions in the RTA take precedence over the provisions in the MDA. [21] To begin with, I have gone through the two cases referred to by the 1 $ ^{st} $ Defendant and the Plaintiffs and find that neither case addresses the core issue at hand. In Mohd Azzeli bin Hussain (supra), I find that while the court addresses the mandatory registration of medical devices under the MDA, it offers no deliberation on the exemption mechanisms pursuant to any Medical Device (Exemption) Order. [22] Similarly, in Mohd Sidik bin Muhanad Ketar (supra), the court there did not determine whether the MyoPro2 fell within any specific statutory exemption order. Instead, that decision to award procurement costs turned strictly on a factual and medical nexus, focusing on evidence that the device was medically proven to suit and befit the plaintiff's rehabilitation back to normal life. [23] Consequently, it is my considered view that both authorities are distinguishable. Neither case addresses the central issue before this court - whether the 1 $ ^{1 \mathrm{st}} $ Plaintiff must first secure a statutory exemption from the Medical Device Authority for her personal use of the Myopro2 device as a mandatory condition precedent before the court can legally award its procurement costs. [24] S. 5 of the MDA reads-Requirement for registration of medical device

(1) No medical device shall be imported, exported or placed to in the market unless the medical device is registered under this Act.

Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both. While para 3 of the 2024 Exemption Order states-Exemption from registration of medical devices

(1) The Minister exempts any medical device from the registration under section 5 of the Act if the medical device is —

for the purposes of personal use;

for the purposes of demonstration for marketing;

for the purposes of education;

for the purposes of clinical research;

for the purposes of performance evaluation of medical device;

for the purposes of export only;

for the purposes of import for re-export;

a custom-made medical device;

a special access medical device;

an orphaned medical device;

an obsolete medical device; or

a discontinued medical device.

The exemption under subparagraph (1) is subject to the following conditions:

any person who imports, exports, manufactures or place in the market any medical device under subsubparagraph (1)(b), (c), (d), (e), (f), (g), (h) or (i) shall make an application for an exemption to the Authority in the form and manner as determined by the Authority;

the exempted medical devices under subsubparagraphs (1)(a), (j), (k) and (l) shall be dealt in the form and manner as determined by the Authority. [25] Upon a careful perusal of the notes of proceedings, it is noted that this action was instituted in March 2018 while the 2024 Exemption Order came into operation on 6.3.2024. As the judgment on the quantum was pronounced on 30.7.2024, $ 1^{\mathrm{st}} $ Defendant argues that the claim for the MyoPro2 device should not have been allowed since the $ 1^{\mathrm{st}} $ Plaintiff failed to secure the exemption as required under the 2024 Exemption Order. [26] On the 1 $ ^{st} $ Defendant argument above, it is my view that the 2024 Exemption Order cannot apply retrospectively to this matter. Despite the judgment being rendered after the introduction of that exemption order, the dispute and its subsequent trial occurred entirely under the previous regime. Accordingly, I find that the applicable law at the material time was the Medical Device (Exemption) Order 2016 ("2016 Exemption Order"). [27] Pursuant to the 2016 Exemption Order, any medical device intended for personal use is granted an absolute exemption from the mandatory registration requirement under s. 5 of the MDA. Para 3 of the 2016 Exemption Order provides-Exemption from registration of medical devices

(1) The Minister exempts any medical device from section 5 of the Act if the medical device is —

for the purposes of personal use;

for the purposes of demonstration for marketing;

for the purposes of education;

for the purposes of clinical research or performance evaluation of medical device;

a custom-made medical device; or

a special access medical device;

A person who imports or manufactures any medical device under subparagraph (1)(b), (c), (d), (e) or (f) shall notify the Authority in writing of the exemption. [28] Para 2 of the 2016 Exemption Order defines "personal use" as follows: "personal use" means a medical device which is brought into Malaysia for the use of a particular individual only and not to be placed in the market;'. [29] In light of the foregoing, it is no doubt that at the time of the filing of this action there was no statutory requirement under the MDA for the 1 $ ^{st} $ Plaintiff to secure a prior or formal exemption from any regulatory authority to procure the MyoPro2 device. Given the governing 2016 Exemption Order provided an automatic and absolute exemption for personal-use medical devices, the 1 $ ^{st} $ Defendant's contention that the 1 $ ^{st} $ Plaintiff was legally required to obtain a formal exemption from the Medical Device Authority is completely untenable. [30] Be that as it may, even assuming arguendo that the 2024 Exemption Order governs the present case, the legal effect remains unchanged. It is axiomatic from the plain reading of the provisions in the 2024 Exemption Order that all medical devices for personal use are exempt from the registration requirements stipulated under s.5 of the MDA. [31] It is worthy of emphasis that it was never the legislative intent of the MDA to mandate the registration of medical devices intended for personal use. This is clearly reflected in the parliamentary debates during the second and third readings of the Medical Device Bill on 3.10.2011. Addressing the Dewan Rakyat, the then Minister of Health, Dato' Seri Liow Tiong Lai, clarified that: "... 6.48 ptg Menteri Kesihatan (Dato' Seri Liow Tiong Lai): Terima kasih Ahli-ahli Yang Berhormat kerana prihatin dengan standard yang kita hendak wujudkan dalam negara kita. Memastikan bahawa badan-badan penilai Rantau ini di tahap dan juga kualitinya dan juga tidak ada personal interest dalam melaksanakan penilaian-penilaian tersebut. Saya hendak tegaskan di sini bahawa penilaian pemantauan (monitoring assessment) adalah dibuat di tempat pembuatan, di manufacturing site. Kalau di manufacture di oversea, ia memang di sana dan bukan di sini. Kita membuat pendaftaran alat-alat peranti ini juga kita tidak minta the retailer, pengguna untuk daftar. Yang daftar hanya manufacturer or wholeseller yang bawa masuk, dia kena daftar. So, kita tidak akan menyusahkan orang ramai yang menggunakan alat seperti pengguna. Saya membeli alat peranti, bukan saya yang bertanggungjawab mendaftar. Memang dari segi manufacturer dan juda the wholeseller. [32] On the second issue - whether provisions in the RTA take precedence over the provisions in the MDA, ss. 91(3) and 96(1) of the RTA read as follows: Requirements in respect of policies

(1) ...

...

Notwithstanding anything in any written law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or class of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or class of persons. Duty of insurers to satisfy judgements against persons insured in respect of third-party risks

(1) If, after a certificate of insurance has been delivered under subsection 91(4) to the person by whom a policy has been effected, judgement in respect of any such liability as is required to be covered by a policy under paragraph 91(1)(b) (being a liability covered by the terms of the policy) is given against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgement any sum payable in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgements. [33] The duty of the insurer to satisfy any judgment granted by the court has been distilled by Abdul Rahman Sebli FCJ in AmGeneral Insurance Bhd (supra) where the lordship held- [217] There can be no dispute that the default judgment obtained by the respondent from the Shah Alam Sessions Court was a regular and enforceable judgment, which has not been set aside nor appealed against. Under s. 96(1) of the RTA the appellant is bound to pay the judgment sum to the respondent. The appellant can only refuse to pay the judgment sum in the following circumstances, none of which applies in its favour:

If no notice of proceedings under s.96(2) had been given by the respondent;

(ii) If policy for the vehicle had been cancelled prior to the accident;

(iii) If the judgment was not served on the appellant;

(iv) If there was a stay pending appeal or if the judgment had been set aside, irregular or that the trial court had no jurisdiction to pass the judgment. [34] In light of the above, I agree with the learned SCJ's finding that the RTA is the primary legislation governing third-party insurance claim in Malaysia. Hence, its provisions take precedence over any administrative requirements under the MDA. Further, pursuant to ss. 91(3) and 96(1) of the RTA, insurers bear a statutory mandate to satisfy judgments, thereby protecting third-party claimants from procedural impediments to compensation. Hence, the $ 1^{\mathrm{st}} $ Defendant's reliance on the MDA to evade liability is legally flawed, as it seeks to subordinate an explicit statutory duty under the RTA to a separate administrative scheme. It is my view that questions of regulatory compliance under the MDA, including registration or exemption protocols, fall within the distinct jurisdiction of the relevant administrative bodies. Thus, these collateral issues must be pursued independently and subsequent to the satisfaction of the judgment. [35] For the reasons stated above, I find no error in the learned SCJ's decision to award the purchase costs of the MyoPro2 to the Plaintiffs. GENERAL DAMAGES Award for multiple scarring [36] Before I delve into the quantum of general damages awarded by the learned SCJ, it is apt to highlight the position of an appellate court in dealing with an appeal on quantum of damages. In the celebrated case of Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 2 MLJ 22 Abdul Hamid Omar CJM (as he then was) when delivering the decision of the Federal Court held- "Now, in appeal on quantum of damages, it is essential in order to come to a conclusion, to bear in mind certain principles which are well established. The appeal court is slow, indeed, disinclined to interfere with the judge's finding merely because the appeal court thinks that if the case had been before it in the first instance a lesser sum would have been awarded. Asmi CJ (Malaya) (as he then was) giving the judgment of the Federal Court in Topaiwah v. Salleh [1968] 1 LNS 161; [1968] 1 MLJ 284 said that: In order to justify reversing the trial judge on the question of the amount 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 entirely an erroneous estimate of the damages to which the Perayu is entitled (see Flint v. Lovell [1935] 1 KB 354). The principle that should guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that, either there was an omission on the part of the judge to consider some relevant materials, or he had admitted for purpose of assessment some irrelevant considerations. If the court is satisfied or convinced that the judge had acted upon wrong principle of law then it is justified in reversing; indeed it is the duty to reverse the finding of the trial judge.". [37] In Mokhtaruddin Abdullah & Anor v Norizan Rosdi & Ors [1998] 1 LNS 248 Abdul Wahab Patail J (as he then was) held that-A long line of binding authority has established that an appellate Court would be slow to interfere with the award. In Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 1 CLJ 429; [1985] 2 MLJ 22 SC, applying Greenfield v. London and North Eastern Railway Company [1945] KB 89, which held that the principle is not whether the appellate Court might have given rather more or rather less, but only if the trial judge had omitted some relevant consideration or admitted some irrelevant consideration or if the amount is so excessive or insufficient as to be plainly unreasonable. [38] In Rasidin Bin Partorjo v. Frederick Kiai [1976] 1 LNS 123 Wan Suleiman FCJ when delivering the Federal Court decision had this to say-The principle upon which an appellate court will interfere with an award of damages made by a judge sitting alone has been stated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd (2) at pp 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 LJ 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 or 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 to interfere, whether on the ground of excess or insufficiency. Thus the appellant here has to convince us that the learned 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 damage suffered. [39] In Amar Singh v. Chin Kiew [1960] 1 LNS 5; [1960] 26 MLJ 77, Thompson CJ (as he then was) held- "...The fixation of damages is so largely a matter of opinion or of impression that differences of calculation or assessment are to be expected. It is an exercise of judicial discretion. Merely disagree with the figure arrived at by the trial judge is no ground for interference unless it is wholly erroneous estimate..." [40] Back to the award of RM25,000.00 for multiple scarring, the $ ^{1 \mathrm{st}} $ Defendant avers that a sum in the range of RM8,000.00 to RM10,000.00 is reasonable and sufficient as the scars suffered by the $ ^{1 \mathrm{st}} $ Plaintiff can be easily concealed with a long-sleeved shirt or dress rendering it non-visible in ordinary social and professional settings. [41] In her judgment, the learned SCJ noted that the $ ^{1st} $ Plaintiff suffered scars across her body, specifically on her left arm, elbow, thigh and leg. The learned SCJ also referred to the Compendium of Personal Injury Award 2018 which states that the award for each scar is between RM9,500.00 to RM18,000.00. Then, the learned SCJ decided to allow a global award of RM25,000.00 for the scars taking into consideration that the scars are not only disfiguring and permanent but give psychological impacts to the young girl. In view of this, I find that the learned SCJ's award is justified and should not be disturbed. Award for skin grafting [42] The $ 1^{\mathrm{st}} $ Defendant contends that the award of RM25,000.00 for skin grafting is excessive. The $ 1^{\mathrm{st}} $ Plaintiff has been awarded a substantial sum for the multiple scars. Hence, the $ 1^{\mathrm{st}} $ Defendant submits that a sum of RM10,000.00 is reasonable. [43] Regarding this issue, the learned SCJ observed that the 1 $ ^{st} $ Plaintiff underwent extensive skin grafting at three sites, measuring approximately the length is 30 cm x 13 cm each which resulted in keloid formation. Based on the Compendium of Personal Injury Award 2018, the award for skin grafting is between RM12,000.00 to RM30,000.00. Thus, the award of RM25,000.00 allowed by the learned SCJ, in my view, is reasonable. Award for laceration left antecubital fossa [44] On the award of RM20,000.00 for laceration left antecubital fossa, the $ 1^{\mathrm{st}} $ Defendant avers that the award is excessive. [45] On this award, I find that the learned SCJ again referred to the medical report prepared by Dr Phung Sy Thung of Hospital Tengku Ampuan Rahimah which states that the $ ^{1st} $ Plaintiff sustained laceration left antecubital fossa with degloving injury. The Compendium of Personal Injury Award 2018 states that the range for the injuries of this type is between RM12,000.00 and RM30,000.00. Thus, I find that the award of RM20,000.00 given by the learned SCJ is reasonable. - Award for open fracture left humerus and left brachial plexus injury with ulna and radial nerve palsy [46] For the award of RM75,000.00, the 1st Defendant contends that in Lariman Niuk v. Mohd Helmieza Suhaimi [2020] CLJU 1602; [2020] 1 LNS 1602 the High Court awarded a sum of RM50,000.00 for just the brachial plexus injury. As the left humerus injury and nerve palsy is related to the brachial plexus injury, the 1st Defendant submits that a sum of RM60,000.00 is reasonable. [47] The learned SCJ awarded RM75,000.00 on the basis that the Compendium of Personal Injury Awards 2018 establishes a guideline range of RM50,000.00 to RM80,000.00 for brachial plexus injuries. Hence, the learned SCJ awarded the $ 1^{\mathrm{st}} $ Plaintiff RM75,000.00 taking into account her severe condition which renders her permanently disabled and reliance on an orthosis for life. In view of this, I find the learned SCJ's award is justified and reasonable. Award for mild head injury with right temporal bone fracture [48] The 1 $ ^{st} $ Defendant contends that the 1 $ ^{st} $ Plaintiff is currently studying law and took stand and testified providing details from memory. This demonstrates that she is not suffering from any disability. The 1 $ ^{st} $ Defendant also refers to the case of Zainal bin Abd Ghani) & 2 Ors v. Mohd Nasriq bin Roslan (Zainal bin Abd Ghani - Third Party) [2008] 1 PIR 7 where the amount of RM10,000.00 was awarded for severe head injuries with multiple fractures of the head. Thus, the 1 $ ^{st} $ Defendant submits that the award of RM45,000.00 given by the learned SCJ to the 1 $ ^{st} $ Plaintiff for mild head injury with right temporal bone fracture, is excessive. [49] From the grounds of judgment, in awarding RM45,000.00, the learned SCJ relied on the case of Khairul Anuar v. Muhammad Syamsul [2024] MLJU 2375 where an award of RM40,000.00 was given for mild head injury with residual disabilities and cognitive impairment. However, in the present appeal, the $ 1^{\mathrm{st}} $ Plaintiff was not only diagnosed with mild head injury with right temporal EDH, but she also suffered left temporal bone fracture, minimal subdural bleed in the left fronto-parietal region and interior interhemispheric fissure and right tentorium cerebelli bleed. These factors demonstrate that the injuries sustained by the $ 1^{\mathrm{st}} $ Plaintiff are significantly more severe than those in Khairul Anuar (supra). Accordingly, the learned SCJ awarded RM45,000.00. [50] I find that the above quantum assessed by the learned SCJ is wellgrounded in fact and entirely reasonable. CONCLUSION [51] For the reasons set out above, the 1 $ ^{st} $ Defendant has failed to demonstrate any appealable error in the decision of the learned SCJ. In the upshot, the appeal is dismissed with costs. (SHAMSULBAHRI BIN HAJI IBRAHIM) JUDGE, HIGH COURT OF MALAYA, KLANG SELANGOR Vinod Kamalanathan Counsel for the Appellant: (Messrs. Vinod Kamalanathan & Associates) Counsels for the Respondents: R Kameswary GK Ganesan KN Geetha JN Lheela, TP Vaani Lydia Jaynthi (Messrs. Kames & Associates)