Imam Nawawi Bin Sukadi v LIM Chee Kong (BA-11B-61-08/2016)

This is an appeal by the Appellant (the Defendant) against the decision of the learned Magistrate of Bandar Baru Bangi involving a road accident which allowed for the Respondent’s (Plaintiff) claim for general damages. The appeal herein is on quantum.

On liability, the parties have agreed to record that the Appellant is 70% liable to have caused the accident and the Respondent, at 10%.

I allow the appeal heard on 12.9.2017 and my full grounds now follow. In this judgment, the parties will be known as they were in the Magistrates Court.

On 6.7.2009, a road accident occurred at the junction of Jalan ½ Bandar Teknologi Kajang at about 6:45pm involving a motorcycle ridden by the Plaintiff bearing registration number BFR 6303 and a motorcycle ridden by the Defendant bearing registration number NAW 4536. 3

The learned Magistrate awarded the Plaintiff as follows:- i. close fracture mid-shaft left clavicle - RM23,000.00 ii. close fracture left acromion - RM18,000.00 iii. close fracture left 6th rib - RM3,500.00 iv. muscle wasting - RM2,000.00

The learned counsel for the Plaintiff submitted to this Court that the amount awarded is reasonable and falls within the range stipulated in the Compendium of Personal Injury Award and made reference to three different medical reports, namely: i. Clarification report dated 27.6.2016 from Klinik Pakar Ortopedik Liew Sdn Bhd (page 26 of Appeal Record) ii. Specialist Medical Report dated 23.8.2014 from Manu Orthopaedic & Trauma Clinic (page 29-33 of Appeal Record) iii. Medical Report dated 10.2.2010 from Klinik Pakar Ortopedik Liew Sdn Bhd (page 39 of Appeal Record)

It was submitted that there was bony deformity over the left clavicle and 0.5 shortening of the left clavicle. It was further affirmed by the Defendant’s expert medical report at paragraph 3.2 (page 30 of Appeal Record) that there was bony deformity over the left clavicle. 4

On the injury close fracture of 6th rib, the Counsel for the Plaintiff has referred to the Plaintiff’s Specialist at page 39 of Appeal Record whom examined the Plaintiff and the clarification report dated 27.6.2016 (page 26 of Appeal Record). It is further submitted that the doctor should or must have gone through with x-ray to report that there was a close fracture midshaft left clavicle, close fracture left acromion and thirdly close fracture left 6th rib. The counsel for the Plaintiff highlighted that the Plaintiff was last seen by the doctor on 13.8.2009 and was found that the fractures had united and the left shoulder motion have improved (page 39 of Appeal Record).

The counsel for the Plaintiff emphasized that close fracture mid-shaft left clavicle and close fracture left 6th rib are two separate and different injuries and urged this Court to maintain the amount of each awards.

The learned Counsel for the Defendant averred that, relying on the three different medical reports, there was an error in awarding the quantum to the Plaintiff: i. The Plaintiff’s early medical report from Klinik Pakar Ortopedik Liew dated 10.2.2010 (page 39 of Appeal Record); ii. The Plaintiff’s specialist medical report from Manu Orthopaedic & Trauma Clinic dated 23.8.2014 (pages 29 - 33 of Appeal Record); 5 iii. The Defendant’s specialist report from Dr. Manmohan Singh, Kuala Lumpur dated 11.9.2015 (pages 1 - 7 of Supplementary Appeal Record (2));

The counsel for the Defendant referred to the Plaintiff’s medical report from Manu Orthopaedic & Trauma Clinic dated 23.8.2014 which showed that the shoulder injury was not mentioned earlier. It is submitted that, on the other hand, a thorough reading of the Defendant’s medical report from Dr Manmohan Singh, Kuala Lumpur dated 11.9.2015(pages 1 - 7 of Supplementary Appeal Record (2)), the Plaintiff has suffered from close fracture midshaft left clavicle and close fracture left acromion. The Defendant’s counsel pointed to the Court that, that is the latest medical report as compared to the 23.8.2014’s medical report.

It was further submitted by the learned Counsel for Defendant that there was no muscle wasting over the left shoulder girdle. The doctor has made an assessment to the Plaintiff’s muscle power at paragraph 3.5 where it was discovered that the left supraspinatus, left subscapularis and left infraspinatus muscle power were all in their fullest powers having a reading of MRC 5/5 in each assessment.

The learned counsel for Defendant emphasized that the Plaintiff had gone through six (6) special tests of the shoulder namely; Hawkins Test, Neer Sign, Paxinos Test, Jobe’s Test, Napolean Test, and Resisted External Rotation Test, all of which led to the finding that there is no evidence of left shoulder acromioclavicular joint disfunction. 6

It was agreed by the Plaintiff’s counsel that based on the same medical report, there was a 0.5 cm shortening of the left clavicle (page 5 of Supplementary Appeal Record (2)). The Defendant’s counsel pointed out that, however, the final opinion of Dr Manmohan’s report should be taken into consideration where it was suggested that this permanent cosmetic disability, if at all, does not harm the Plaintiff and in respect of its functionality, the Plaintiff has no limitation with his left shoulder where he could carry on with his daily activities (page 7 of Supplementary Appeal Record (2)).

Regarding close fracture left acromion, the Counsel for Defendant relied on the same report from Dr Manmohan dated 11.9.2015(page 3 of Supplementary Appeal Record (2)) which stated that the fracture of the clavicle and acromion has united and suggested that the amount should be reduced from RM18,000.00 to RM15,000.00, a fair and reasonable award.

In relation to the fracture of 6th rib, it is submitted by the counsel for the Defendant that the doctor has no reference as to whether x-ray was taken on the Plaintiff or otherwise. The counsel for the Defendant has referred to a Memo from Klinik Pakar Ortopedik Liew (page 39 of Appeal Record) who had examined the Plaintiff. In addition, based on the Plaintiff’s specialist report at page 29 of Appeal Record particularly at page 32, it is stated that there appeared to be a fracture of the left 6th rib which had united. It is submitted that this is further supported at page 33, paragraph 8, where the injury not stated in the initial report, should be clarified by reviewing the initial X-rays. [17] It was brought to this Court’s attention that, in the Plaintiff’s review medical report (page 26 of Appeal Record), Dr Liew has made no reference 7 to do the X-ray. The Defendant’s counsel pointed out that the injury as to the fracture of 6th rib was not raised. The Defendant’s counsel averred that the counsel for the Plaintiff has promised to provide the Defendant with Clarification Report for this injury, however, to date, up till filling the written submissions at the Magistrates Court, they have failed to provide one.

The counsel for Defendant also raised the issue of overlapping by referring to the case of Chong Chee Kong & Anor v Ng Yeow Hin [1997] 4 CLJ Supp 7which referred to the Federal Court case of Tay Tong Chew & Anor v Abdul Rahman Bin Haji Ahmad [1985] 1 MLJ 50 at page 25, “overlapping is to be considered where there are multiple injuries became the general handicapped, discomfort, pain and suffering would be common to any or all of the injuries. In this case, the Counsel for Defendant suggested the calculation of RM 18,000 for close fracture mid-shaft left clavicle, RM15,000.00 for the close fracture left acromion and RM2,000.00 for muscle wasting amounting to total award of RM 32,000.00 being a fair and reasonable amount.”

The counsel for the Plaintiff chose to reply to the Defendant’s counsel’s contention in relation to the Clarification Report. It is submitted that the Clarification Report was only submitted after the written submissions filed by both counsels and therefore, the issue of absence of Clarification Report is baseless. THE COURT’S FINDING 8

It is trite law that it would be undesirable for the factual findings of the trial judge be disturbed by the Appellate Court unless it appears that those findings are clearly wrong in law. In the case of Ming Holdings (M) Sdn Bhd v Syed Azhari Nor Shahabudin & Anor [2010] 4 MLJ 577, where the Federal Court held that, “A trial judge has the advantage over the appellate Court in hearing the witness and observing his demeanor. Unless the trial Judge is plainly wrong in his finding, the Appellate Court should not reserve a finding of committed by the Court of Appeal regarding the admission of certain evidence, the other reasons advanced were no more than just substituting one’s discretion for that of another with no benefit and privilege as the trial Judge had in seeing and hearing the witnesses. The findings of the trial judge are supported by cogent evidence and there is no reason why the Court of Appeal should reserve them”.

In the case of quantum, before this Court could intervene, it must be satisfied that the trial judge was plainly wrong, that the trial judge had acted on the wrong principle of law or misapprehended the facts or has made a wholly erroneous estimate of the damage, based on the above Federal Court case of Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1 that was recently referred in the Court of Appeal’s decision of Lay Hong Food Corporation Sdn Bhd v Tiong Nam Logistics Solutions Sdn Bhd [2017] 1 LNS 708 which also made reference to the English case of Davies v Powell Duffyn Associated Collieries Ltd [1942] AC 601.This Court also rely on the Federal Court case of Inas Faiqah [2016]which held that in assessing damages, it must be based on cogent evidence. 9

This suit was brought by the Plaintiff and the burden to prove rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as extensively deliberated by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan (as executor to S L Alameloo Achialias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697. Based on the Letchumanan Chettiar Alagappan (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue.

The main ground of appeal advanced by the Defendants’ counsel is that the learned Magistrate had erred in granting the award without any evidence (paragraphs 1-5, Memorandum of Appeal, page 20-21 of Appeal Record Lampiran 2). This Court viewed that based on the facts and evidence, there was a clear misdirection of law and findings by the trial judge and it would be incumbent upon this Court to exercise its duty to intervene and correct the findings: Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323.

The crux of the matter in this instant appeal is the claim for the injuries suffered by the Plaintiff namely, close fracture mid-shaft left clavicle, close fracture left acromion, close fracture left 6th rib and muscle wasting and I refer to the case of Yii Chee Wee & Anor v Boon Chin Fatt [2013] PIR [67] and 10 the case of Mohammad Fatimi Bin Rejab v Saw Eng Keong [2015] 1 PIR [512].

In relation to the injuries close fracture mid-shaft left clavicle and close fracture left acromion, I rely on the case of Chong Chee Khong & Anor v Ng Yeow Hin [1997] 4 CLJ (Supp) 17 where the issue of overlapping was decided. This Court viewed that the trial judge must take into consideration of the same body parts injury. In this instant appeal, the injuries suffered by the Plaintiff relates to the upper left limb which are the left clavicle and left acromion and I viewed that the amount of RM23,000.00 for left clavicle fracture and RM18,000.00 for fracture of left acromion are grossly excessive.

While acknowledging that the Magistrate had failed to consider that there was an overlapping injury which is the left clavicle and the left acromion, I viewed that a global award should be given based on the case of Chong Chee Khong & Anor (supra), the Court of Appeal case of Sukatno, Rayuan Sivil No.: A-04-76-2008 and the Federal Court case of Tay Tong Chew & Anor (supra), in the amount of RM32,000.00, also taking into consideration the medical report evidence that the fracture had united and with no disabilities (Dr. Manmohan Singh specialist report of 11.9.2015, paragraph 3.3.1). [27] Regarding injury fracture of 6th rib, based on the Plaintiff’s medical report and as admitted by the Plaintiff’s counsel, this Court observed that if the X-ray was carried out, it would have reported the injury. Therefore, I am urged to set aside the RM3,500.00 awarded by the Magistrate for the fracture of left 6th rib injury on the ground that there is no evidence of such injury, the Magistrate had failed to consider the fact that the Plaintiff who bears the 11 burden to prove, failed to prove that the fracture 6th rib was caused by the road accident.

Based on the foregoing, I allow the appeal with costs. Dated: 22 July 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT R. KAMALANATHAN Messrs Vinod Kamalanathan & Associates Suite 501, 5th Floor Loke Yew Building 12 4, Jalan Mahkamah Persekutuan 50050 Kuala Lumpur [Ref: VKA/L/1723/P&O/2015/es(1)] Tel: 03-2691 8501 Fax: 03-2691 3501 COUNSEL FOR THE RESPONDENT M. KALIPARUMAL Messrs Kali & Associates Level 3B, Wisma Harwant No. 106, Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur [Ref: KKA/MK/116/09(K6) ] Tel: 03-2691 2775 / 5277 Fax: 03-2693 2776