Kanagesh Kumar A/L Mahendran v Sadiah Binti Muhammad Taib (JA-12B-103-12/2020)

This was an appeal (“this Appeal”) against the decision of the learned Sessions Court Judge (“SCJ”) on 15 December 2020 on the issues of both liability and quantum. For ease of reference, the Appellant and Respondent will be referred to respectively as the Plaintiff and Defendant. The factual background [2] This Appeal arose from proceedings in the Sessions Court pursuant to an accident that occurred on 5 June 2018, involving two motorcycles ridden respectively by the Plaintiff, and allegedly the Defendant.

The Plaintiff had lodged a police report on 13 June 2018, some eight days after the accident.

The learned SCJ had dismissed the Plaintiff’s claim on the basis that he had failed to prove it. The Plaintiff appealed against both liability and quantum. This Appeal was allowed with regard to liability only, for the following reasons. Contentions, evaluation, and findings on liability

At the outset, it was imperative to state that I am mindful of the presumption that the decision of the trial court that is appealed against was correct in every respect. Therefore, to succeed in an appeal, the Plaintiff in this case must convince this Court that the decision 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 3 appealed against was wrong; and if this Court was not so convinced, the Appeal should fail. This is based on the premise that the findings of the trial judge who had the advantage of seeing, hearing, assessing and evaluating the witnesses, must be respected: Yahaya bin Mohamed v. Chin Tuan Nam [1975] 1 LNS 195; [1975] 2 MLJ 117. An appellate court, therefore, should be cautious of upsetting the findings of the trial judge.

This, however, does not mean that the hands of the appellate court are tied. The exception to the general rule mentioned above is when the findings were clearly wrong: China Airlines Ltd v Maltan Air Corp Sdn Bhd [1996] 3 CLJ 163; [1996] 2 MLJ 517; or where crucial evidence had been misconstrued, or disregarded: Multar Masngud v. Lim Kim Chet & Anor [1982] CLJ Rep 237; or if the trial judge was shown to have misdirected herself on the evidence, or to have rejected evidence for a wrong reason, or to have drawn an inference from evidence which was equally capable of supporting a different inference, it then may be the duty of an appellate court to interfere: Woon Ngee Yew and Others v. Ng Yoon Thai and Others [1940] 1 LNS 119; [1941] 10 MLJ (F.M.S.R) 37.

Guidance may also be obtained from the case of Paya Terubong Estates Sdn Bhd v. Pusaka Warisan Sdn Bhd [1998] 2 CLJ 909; [1998] 2 MLJ 463, in the words of Gopal Sri Ram JCA (as he then was): One can, of course, quite well appreciate an appellate court's reluctance to disturb the primary exercise of discretion. This is because a court of appeal in a matter such as the present does not possess an original discretion, its initial function being one of review only. However, where, as in the present instance, it is amply demonstrated that the judge in whom the primary discretion is vested has failed to take into account relevant considerations 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 4 it is the duty of this court to say so and to intervene and set matters right by an exercise of its own discretion. [Emphasis added.]

The Plaintiff contended that the learned SCJ had failed to consider the evidence of the uncle of the Plaintiff, one Sashigaran a/l Poovan (“SP2”). SP2 who had arrived at the scene of the accident some 15 minutes later, had adduced photographs he had taken and statements made by bystanders. He testified that he was informed by the bystanders that the Defendant riding motorcycle JST 2994 was involved in the accident, and that she had taken the Plaintiff to the hospital. SP2 had then taken photographs of the motorcycle ridden by the Defendant. The learned SCJ however, ruled that such evidence was inadmissible as the bystanders were not called to give evidence and as a result thereof, such evidence amounted to hearsay by virtue of the Privy Council case of Subramaniam v PP [1956] MLJ 220.

In my view, although the bystanders were not called as witness, the learned SCJ should have considered if their statements formed part of the res gestae as provided for in section 6 of the Evidence Act 1950 (“the Evidence Act”). Section 6 reads: Facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places. 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 5 [10] A clarification of the section may be found in the Illustrations to section 6 of the Evidence Act. In Illustration (a), it is stated: A is accused of murder of B by beating him. Whatever said or done by A or B or by the bystanders at the beating or so shortly before or after it as to form part of the transaction is a relevant fact.

Although no specific reference to res gestae is found in section 6 of the Evidence Act, the connection between the section and the common law rule was made by the High Court in Kok Ho Leng v PP [1941] 1 MLJ 143, where it was explained by Murray-Aynsley J: …[section] 6 is the section which deals with what is known as res gestae in England. I think that a telephone message has some analogy to the shouting of the bystanders.

The same association was made by Justice Mookerjee in the Indian case of Chotka v State AIR 1958 Cal 482: …section 6 embodies the rule of admission of evidence relating to what is commonly known as res gestae. Acts or declarations accompanying or explaining the transaction or the facts in issue are treated as part of the res gestae and admitted as evidence. They are, roughly speaking, exceptions to the hearsay rule … The obvious ground of admission of such evidence as is referred to in section 6 is the spontaneity and immediacy of the act or declaration in question. The facts deposed to must form part of the transaction. The requirement is that the statement sought to be admitted must have been made contemporaneously with the act or immediately after it and not at such an interval of time from it as to allow fabrication or to reduce the statement to a mere narrative of past events. [Emphasis added.] 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 6 [13] The statements made by the bystanders were so connected to the accident that they formed part of the same transaction, and were, therefore, relevant. However, the learned SCJ had not applied the res gestae exception to the statements made by the bystanders. In my view, there was no reason not to accept such statements which were adduced by SP2.

Furthermore, the statements of the bystanders were corroborated by the evidence of the photographs taken by SP2. The Defendant contended that these photographs did not point directly to her liability and were therefore inadmissible. In my view, although the photographs were not direct evidence of the accident itself, they were circumstantial evidence, as they pointed to the Defendant’s motorcycle at the scene of the accident, and viewed holistically and contextually, they were indicative of the liability of the Defendant, as averred by the bystanders.

In my view, circumstantial evidence is just as reliable and credible as direct evidence provided that, in its totality, it reaches the threshold of proof. I found instructive the case of Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131, where Raja Azlan Shah FCJ (as he then was) clarified the nature of circumstantial evidence in a civil case: In a civil case one needs only circumstances raising a more probable inference in favour of what is alleged. An inference from an actual fact that is proved is just as much part of the evidence as the fact itself. Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture (see Richard Evans & Co Ltd v Astley [1911] AC 674,687. By more probable is meant no more 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 7 than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. It is to be noted that once the right principle has been applied the appellate court has said over and over again than this type of case becomes a matter of fact for the learned trial judge. [Emphasis added.] Whether the learned SCJ erred in failing to consider the Affidavit of Non-Service [16] A pertinent issue in the present case was the admissibility of the Affidavit of Non-Service dated 9 July 2020, affirmed by the process server, one Mohd Fadzrul bin Salem (“Mohd Fazrul”). The learned SCJ had discounted this document on the basis that the maker had not been called to give evidence on the same, and that had rendered the contents of such affidavit hearsay evidence.

I was unable to agree with the learned SCJ for the following reasons. First and foremost, it is germane to note that the Evidence Act does not apply to affidavits by virtue of section 2 of the Evidence Act, which reads: Section 2 – Extent This Act shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator. [Emphasis added.] 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 8 [18] The non-applicability of section 2 has been explained in a plethora of cases including Ching Yew Chye & Ors v Pavitar Singh Manjeet Singh & Anor [2017] 1 LNS 1700.

However, even if the Evidence Act applied, it was germane to note that the Affidavit of Non-Service was still admissible pursuant to the exception to the hearsay rule, namely section 32(1)(b) of the Evidence Act, which reads: Section 32 – Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases: …

when the statement was made by any such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him; [20] The Affidavit of Non-Service was affirmed before a Commissioner for Oaths in the discharge of the professional duty of Mohd Fadzrul as a process server. As such, the Affidavit of Non-Service should have been admitted under section 32(1)(b) of the Evidence Act. 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 9 [21] At this juncture, it is important to bear in mind that besides section 32(1)(b) of the Evidence Act, the learned SCJ should have also considered section 73A(1) of the Evidence Act, which deals specifically with documentary evidence in civil cases. The provision reads: Section 73A - Admissibility of documentary evidence in civil cases, etc.

Notwithstanding anything contained in this Chapter, in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

if the maker of the statement either—

had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have had, personal knowledge of those matters; and

if the maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. [22] A perusal of section 73A of the Evidence Act indicates that even if the unavailability of Mohd Fadzrul had not been established, the learned SCJ had the discretion to dispense with his presence pursuant to section 73A(2) of the Evidence Act, which allows the judge to exercise 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 10 her discretion to dispense with the maker of the document if she was satisfied that undue delay or expense would otherwise be caused. Section 73A(2) of the Evidence Act reads: Section 73A - Admissibility of documentary evidence in civil cases, etc.

In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence –

notwithstanding that the maker of the statement is available but is not called as a witness; and

notwithstanding that the original document is not produced, if, in lieu thereof, there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be. [Emphasis added.] [23] On the interpretation of section 73A(2) of the Evidence Act, it was stated by Abdul Hamid J (as he then was) in Arab-Malaysian Merchant Bank Bhd v Chong On Foh Medical Hall and Liquor Dealers [1997] 4 MLJ 532, as follows: Under the section, a statement is admissible under three circumstances: 1) where the maker is called to give evidence - sec. 73A(1)(b); 2) where the maker is not available but proviso to sub-s. (1) of that section is satisfied; and 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 11 3) where the maker is available but not called as a witness, under circumstances provided by sub-s. 2 of that section. It should be understood that sub-s (2) is separate from sub-s. (1). Under subs. (1) the statement is not admissible unless:

the maker himself gives evidence; or

the proviso applies The proviso is a proviso to sub-s. (1), and not to sub-s. (2). So if the statement is not admissible under sub-s. (1), the learned magistrate should have considered whether it was admissible under sub-s. (2). Under sub-s.

(2), the statement is admissible if the Court is satisfied that undue delay or expense would be caused in order to call the maker to give evidence. [24] See also Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474; and Kubota Agricultural Machinery Sdn Bhd v. Sharizan Sdn Bhd & Anor; Sharizan Sdn Bhd & Ors (Third Parties) [2001] 6 CLJ 104. [25] In my view, therefore, the learned SCJ should have considered exercising her discretion to admit the Affidavit of Non-Service. After all, an affidavit of non-service is a legal statement sworn before a Commissioner for Oaths, indicating that the process server was unable to serve a legal document. Whether the learned SCJ erred in invoking adverse inference for non-production of the Investigating Officer [26] One of the issues that influenced the decision of the learned SCJ was the failure of the Plaintiff to call the Investigating Officer, one Sergeant 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 12 Abdul Jalal Idris (“Sergeant Abdul Jalal”), and that such failure resulted in an adverse inference being drawn against the Plaintiff. [27] Before making an adverse inference, it is important for the court to ensure that the withholding of the evidence is deliberate. Thus, in Adel Muhd El Dabbah v AG of Palestine [1944] AC 156, it was held that an adverse inference should not be drawn unless it was shown that the party had an oblique motive. [28] Likewise, in Murugan v Lew Chu Cheong [1980] 2 MLJ 139, it was held that although a potential witness was not present in court to give evidence, the inference was not drawn, as the absence of that person had been explained, since his address was unknown. Other cases in which this condition was emphasised are Udhaya Kumar a/l Karuppusamy v Penguasa Hospital Daerah Pontian [2004] 2 MLJ 66, Malaysian Bar v Dato’ Kanagalingam a/l Veluppillai [2004] 4 MLJ 153, ABN-AMRO Bank Bhd v Ismail bin Mydinsah (t/a Ismy Classic) [2004] 7 MLJ 30, Yong Chou Chuen v Ling Ming Sing [2004] 7 MLJ 551, and Koay Cheng Eng v Linda Herawati Santoso [2004] 6 MLJ 395. [29] In the present case, the Plaintiff had applied for a subpoena to be issued to Sergeant Abdul Jalal to attend as a witness and to adduce the relevant documents. The Plaintiff had also made reference to the Affidavit of Non-Service, wherein the reasons for failing to serve the subpoena were referred to. The Plaintiff had also contended that Whatsapp messages were sent to Sergeant Abdul Jalal to inform him, but that such messages were not considered by the learned SCJ. 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 13 [30] Since it was my finding that there was no basis for rejecting the Affidavit of Non-Service in which the reasons for the non-production of Sergeant Abdul Jalal was provided for, there was, therefore, no justification for invoking an adverse inference against the Plaintiff, as efforts had been made by the Plaintiff to secure Sergeant Abdul Jalal’s attendance. [31] In any event, it was also crucial to note that an adverse inference pursuant to section 114(g) of the Evidence Act should be invoked only when there is no other evidence that was relied upon by the party. In the present case, there was other evidence adduced by the Plaintiff as alluded to earlier, namely the evidence of the Plaintiff himself and that of SP2. Whether the learned SCJ had erred in concluding that Plaintiff had failed to prove his claim [32] The learned SCJ concluded that the Defendant’s failure to adduce any evidence whatsoever was not fatal to her case as it was the Plaintiff who bore the burden to prove the case, and without having discharged that legal burden of proof, the Defendant was under no obligation to adduce any evidence. [33] In my view, it is trite law that the Plaintiff had the legal burden of proof, as prescribed by section 101 of the Evidence Act which reads: Section 101 – Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 14

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. [34] This reminder was also administered by the Federal Court in Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151 in the words of Ong CJ: In a negligence action the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence. The plaintiff cannot succeed without proof of the defendant's negligence. Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, may result in proof, but it is not necessarily proof of itself. [35] The standard of proof on the Plaintiff to prove his claim was on a balance of probabilities. The term ‘balance of probabilities’ was described in Miller v Minister of Pensions [1947] 2 All ER 372 by Denning J (as he then was) as ‘more probable than not’ and which is ‘not so high as required in a criminal case…but if the probabilities are equal, it is not discharged’. Miller v Minister of Pensions has been assimilated into Malaysian jurisprudence through several cases including Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1. [36] The ‘balance of probabilities’ standard had been explained by Abang Iskandar Abang Hashim JCA (now CJSS), in Unsung Rasad v. PP [2019] 1 LNS 662, where his Lordship adopted the English case of Re B [2008] UKHL 35: In the celebrated case of Miller v. Minister of Pensions [1947] 2 All ER 372, Denning J (as he then was) said: 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 15 If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal, it is not. [17] That would invariably require that party involved having to lead or adduce affirmative evidence to prove his case, as the court shall presume the absence of those circumstances, to reach a level of proof of at least 51% probability against his adverse party. We would cite the English case of Re B [2008] UKHL 35, where Lord Hoffman had used a mathematical analogy to illustrate what needed to be proven by a party desirous of having judgement entered in his favour, like so: If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened. [Emphasis added.] [37] Although the Plaintiff had to discharge his burden of proof on a balance of probabilities, this did not mean that the Defendant could afford to do nothing. In fact, the Defendant had the evidential burden to raise sufficient evidence to ensure that the probabilities were equal. In the present case, the Defendant had not discharged such evidential burden. A perusal of the notes of evidence indicated that the Defendant had not even challenged the evidence of the Plaintiff, and as such, following the case of Jaafar Shaari & Anor v Tan Lip Eng & Anor [1997] 3 MLJ 693, once the Defendant elected not to call evidence, then all the evidence led by the Plaintiff must be assumed to be true. In fact, if 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 16 at all an adverse inference was made, it should have been invoked against the Defendant for failing to call any witness. [38] Furthermore, the Plaintiff had lodged a police report after the accident. This brought to the forefront, section 157 of the Evidence Act 1950 (“Evidence Act”) which reads: Section 157 – Former statements of witness may be proved to corroborate later testimony as to same fact In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. [Emphasis added.] [39] Although the Plaintiff had lodged the police report eight days after the incident, the words ‘at or about the time when the fact took place’ in section 157 of the Evidence Act refer to the first reasonable opportunity. Therefore, regardless of the eight-day delay, the Plaintiff’s police report corroborated his version of the accident. On this note, I found instructive the case of Dewaramah v Ibrahim bin Abdul Haris [1989] 1 CLJ 18. [40] Bearing in mind that the Defendant had failed to provide any other version, the Plaintiff’s evidence remained unchallenged. [41] It was my view, therefore, that the Plaintiff had in fact reached the threshold of proving his case on a balance of probabilities, but that the 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 17 Defendant had not even discharged her evidential burden of raising sufficient evidence to reach even the minimum threshold of ensuring that the probabilities were equal. Contentions, evaluation, and findings on quantum [42] With regard to quantum, the Plaintiff appealed against the awards for general damages granted by the learned SCJ, enumerated as follows in Table A: Table A No. Injuries Amount (in MYR) awarded by SCJ 1 Right eye optic atrophy secondary to optic neuropathy (blind eye) 90,000 2 Resolved periorbital haematoma 3,000 3 Mild head injury with skull fracture and intracranial bleeding of subdural types 30,000 4 Multiple facial bone fractures 50,000 5 Left eye with mild refractive error None 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 18 [43] The Plaintiff contended that the general damages awarded in accordance with Table A were particularly low, and as such, appellate interference was warranted. [44] With regard to general damages awarded, this Court should be slow and disinclined to interfere with the finding of the learned SCJ merely because this Court thinks that if the case had been before it in the first instance, a different sum would have been awarded: Topaiwah v. Salleh [1968] 1 LNS 161 and Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22, wherein Abdul Hamid Omar CJ (Malaya) (as he then was) stated: Now, in an 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. Azmi 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 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 entirely an erroneous estimate of the damages to which the plaintiff 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 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 19 principle of law then it is justified in reversing; indeed, it is the duty to reverse the finding of the trial judge. [45] I also found instructive the Federal Court case of Rasidin Binpartorjo v Frederick Kiai [1976] 2 MLJ 214, [1976] 1 LNS 123, where it was stated by Wan Suleiman FCJ in the following passages: 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 4will 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. [Emphasis added.] [46] To justify reversing the decision of the learned SCJ, this Court has to be convinced that the learned SCJ had acted upon some wrong principle of law, or that the amount awarded was at either end of the 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 20 spectrum of damages, as to make it an entirely erroneous estimate of the damages. [47] The legal proposition in an appeal against an award for damages was summarised aptly in Kovalan Rajoo v. Hanif Muhamad Pauzi [2016] 2 CLJ 965, where it was stated:

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 was so extremely high or low to make it an entirely an erroneous estimate of damages, or 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 what 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 was a difference of opinion or preference. 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 21 [48] In United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] 1 LNS 164, Gill FJ (as he then was) put it very aptly when he applied what I would refer to as the “goodness gracious” test: The general principle is that an appellate court can only interfere with an assessment if it is considered inordinately low or inordinately high as to make the court exclaim, 'Goodness gracious, is that the sum which has been awarded that sum must be altered', or it is so much out of line with the discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as a wholly erroneous estimate. [49] I am mindful that the Compendium of Minimum and Maximum Awards for Personal Injury Claims (“the Compendium”) is a useful gauge for the awards prescribed for personal injury claims, as was stated by S Nantha Balan J (as he then was) in Abdul Waffiy Wahubbi & Anor v. AK Nazaruddin Ahmad [2017] 5 LNS 52: It is axiomatic and imperative that when awarding damages for pain and suffering for personal injuries, the court must endeavour to ensure that the sum awarded falls within the range as stipulated in the Compendium and it would be wrong for trial courts to ignore the range of damages as recommended in the Compendium and to pluck a quantum from the air and make an award for a particular injury which does not resonate with the range in the Compendium. [50] However, at the same time, it must also be noted that the Compendium is not cast in stone. The fact that it is revised from time to time is also an indication that it is not a static guide. The rationale for the Compendium may be obtained from the following paragraph of the Malaysian Bar Circular No 255/2018: We wish to highlight to Members that the Compendium is merely a guideline, intended as a guide reference for judges and lawyers. The 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 22 Compendium is not meant to stifle the rights of the parties to submit below or above the stipulated quantum, nor is it meant to fetter the discretion of the court. Judges and lawyers are at liberty to depart from the Compendium if case law or factual circumstances so dictate. [Emphasis added.] [51] Bearing in mind the fluidity of the Compendium, some latitude, therefore, must be given to the trial judge to decide the amount based on the facts of each case. [52] There is no doubt of the existence of case authorities that support the Plaintiff’s argument in increasing the sum awarded by the learned SCJ. However, unless Counsel for the Plaintiff could convince this Court that the learned SCJ was manifestly wrong, her awards for general damages must be maintained. [53] With regards to items 1 to 4 in Table A, the awards granted by the learned SCJ were reasonable and fair and did not warrant appellate interference. As far as item 5 was concerned, the learned SCJ explained that she had not granted any award as the injury was not proved to have been caused by the accident. I, therefore, did not see any reason to interfere with her finding. [54] Put it simply, with regard to the general damages awarded by the learned SCJ, the Plaintiff had failed the ‘goodness gracious’ test prescribed by Gill FJ in United Plywood & Sawmill Ltd v. Lock Ngan Loi. As such, there was no basis that warranted interference. 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 23 Conclusion [55] In the upshot, therefore, based on the aforesaid reasons, and after careful scrutiny and consideration of all the evidence before this Court, including the written and oral submissions of both parties, and the grounds of judgment of the learned SCJ, this Appeal was allowed with costs, with regard to liability only. Dated: 13 January 2022 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel: For the Appellant/ Plaintiff – S Nithiyawathi and M Elakiyah; Messrs SN Wathi Chambers For the Respondent/ Defendant – Mohd Tahril Jamia’an; Messrs VM Kumaran & Co 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 24 Cases referred to: ➢ Abdul Waffiy Wahubbi & Anor v. AK Nazaruddin Ahmad [2017] 5 LNS 52 ➢ ABN-AMRO Bank Bhd v Ismail bin Mydinsah (t/a Ismy Classic) [2004] 7 MLJ 30 ➢ Adel Muhd El Dabbah v AG of Palestine [1944] AC 156 ➢ Arab-Malaysian Merchant Bank Bhd v Chong On Foh Medical Hall and Liquor Dealers [1997] 4 MLJ 532 ➢ Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474 ➢ China Airlines Ltd v Maltan Air Corp Sdn Bhd [1996] 3 CLJ 163; [1996] 2 MLJ 517 ➢ Ching Yew Chye & Ors v Pavitar Singh Manjeet Singh & Anor [2017] 1 LNS 1700 ➢ Chotka v State AIR 1958 Cal 482 ➢ Dewaramah v Ibrahim bin Abdul Haris [1989] 1 CLJ 18. ➢ Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1 ➢ Jaafar Shaari & Anor v Tan Lip Eng & Anor [1997] 3 MLJ 693 ➢ Koay Cheng Eng v Linda Herawati Santoso [2004] 6 MLJ 395 ➢ Kok Ho Leng v PP [1941] 1 MLJ 143 ➢ Kovalan Rajoo v. Hanif Muhamad Pauzi [2016] 2 CLJ 965 ➢ Kubota Agricultural Machinery Sdn Bhd v. Sharizan Sdn Bhd & Anor; Sharizan Sdn Bhd & Ors (Third Parties) [2001] 6 CLJ 104. ➢ Malaysian Bar v Dato’ Kanagalingam a/l Veluppillai [2004] 4 MLJ 153 ➢ Miller v Minister of Pensions [1947] 2 All ER 372 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 25 ➢ Multar Masngud v. Lim Kim Chet & Anor [1982] CLJ Rep 237 ➢ Paya Terubong Estates Sdn Bhd v. Pusaka Warisan Sdn Bhd [1998] 2 CLJ 909; [1998] 2 MLJ 463 ➢ Rasidin Binpartorjo v Frederick Kiai [1976] 2 MLJ 214, [1976] 1 LNS 123 ➢ Subramaniam v PP [1956] MLJ 220 ➢ Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 ➢ Topaiwah v. Salleh [1968] 1 LNS 161 ➢ Udhaya Kumar a/l Karuppusamy v Penguasa Hospital Daerah Pontian [2004] 2 MLJ 66 ➢ United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] 1 LNS 164 ➢ Unsung Rasad v. PP [2019] 1 LNS 662 ➢ Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151 ➢ Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 ➢ Woon Ngee Yew and Others v. Ng Yoon Thai and Others [1940] 1 LNS 119; [1941] 10 MLJ (F.M.S.R) 37 ➢ Yahaya bin Mohamed v. Chin Tuan Nam [1975] 1 LNS 195; [1975] 2 MLJ 117 ➢ Yong Chou Chuen v Ling Ming Sing [2004] 7 MLJ 551 Legislation referred to: ➢ Evidence Act 1950 – sections 2, 6, 32(1)(b), 73A(1)(2), 101, 114(g), 157 ➢ Malaysian Bar Circular No 255/2018 13 January 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 26 Other sources referred to: ➢ Compendium of Minimum and Maximum Awards for Personal Injury Claims