KESAVAN A/L KOPALA KRISHNAN (Mendakwa melalui ibu dan sahabat wakilnya Batmah a/p Thangaveloo) v SARASWATHY A/P KANDASAMY (BA-12B-15-02/2023)

1.

VIKNESH A/L ARIVANANDAR RESPONDEN-RESPONDEN [DALAM MAHKAMAH SESYEN DI SEPANG DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO: S1-BK-A53KJ-301-10/2019 ANTARA KESAVAN A/L KOPALA KRISHNAN (Mendakwa melalui ibu dan sahabat wakilnya BATMAH A/P TANGAVELOO) PLAINTIF

1.

VIKNESH A/L ARIVANANDAR DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] This matter came before me as an appeal by the Appellant/Plaintiff against the judgment of the Sessions Court dated 7-2-2023 on assessment of the quantum of damages recoverable in a running down case after liability was agreed to by the parties at 90:10 with the Respondents/Defendants being liable for 90% of the damages. [2] Referring to the parties as they were at the Sessions Court in this judgment, the Plaintiff was at the time of the accident on 12-10-2018, a 16-year old boy. He was riding a motorcycle and was involved in an accident with a car driven by the 1st Defendant and owned by the 2nd Defendant. [3] The Sessions Court had assessed and awarded the following sums as damages (before apportioning): Items Quantum (RM) General damages Femur fracture 40,000.00 Tibia & Fibula facture 40,000.00 Scars & Skin graft 20,000.00 Cost of insole 126,000.00 Cost of future surgery 9,333.00 Special damages JPJ Search 10.00 Medical report of Hospital Banting 40.00 Medical report of Tengku Ampuan

Medical report of PPUM 00 Specialist report 1,670.00 Hospital bills of Tengku Ampuan Rahimah Hospital 197.00 Quotation from Teh Lin Prosthetic 200.00 [4] After hearing submissions and reviewing the records of appeal, I allowed the appeal in part. The grounds for my decision are as follows. Analysis and Findings Pain and suffering for injuries [5] The sums awarded by the Sessions Court for pain and suffering and loss of amenities in respect of the injuries suffered by the Plaintiff were based on the medical reports, the compendium and case law on similar injuries. [6] The Plaintiff sought to claim for additional aspects of the injury, namely lacerations and muscle wasting. Based on the authorities cited by the Sessions Court, these components of injury were accounted for in the open fractures to the femur, tibia and fibula. [7] The guiding principle for appeals on quantum of damages is expressed by the Federal Court in United Plywood and Sawmill Ltd v. Lock Ngan Loi [1970] CLJU 164; [1970] 1 LNS 164 as follows: This Court normally does not interfere with an assessment of damages even where the award seemed much too high, so long as there has not been any error of principle discerned in the judgment or the sum manifestly excessive. [8] As the Plaintiff failed to demonstrate any error in principle nor was it demonstrated that the quantum awarded was manifestly low, I dismissed the appeal on this head of loss. Cost of future surgeries [9] Although it was not raised as an issue, this Court highlighted the distinction between special and general damages, and why therefore the estimated future costs and other such claims that have yet to materialize are general damages. [10] According to the Federal Court in Sam Wun Hoong v Kader Ibramshah [1981] CLJU 103; [1981] 1 LNS 103: .....Special damage consists of out of pocket expenses, such as hospital bills and actual loss of earning during period of total incapacity, and is generally capable of substantially exact calculation. General damage comprises damage for pain and suffering, loss of amenities and the like which the law implies, and in certain cases where the injuries suffered are such as to lead to continuing or permanent disability, it includes future loss of earnings and loss of [11] In respect of the cost of future surgeries as general damages, both disabilities and cost of care, Dr. Haji Mohd Noor Manukaran (for the Plaintiff) and Dr. Rajesh Rampal (for the Defendant) had expressed the same opinion that the Plaintiff would require future surgeries. [12] In similar terms, the future surgeries were recommended to correct the equinus deformity of his left ankle (RM10,000.00 to RM15,000.00), remove implants in the left femur and tibia (RM14,000.00) and address non-union of the left femur and shortening of left lower limb by cancellous bone grafting of the fracture site (RM9,000.00). [13] Dr. Rajesh Rampal had recommended that the last two mentioned surgeries be undertaken in the same sitting and gave no cost estimate for the bone grafting procedure. Despite this, there was agreement that the estimated total costs of all three surgeries would be RM38,000.00 if undertaken in a private hospital and that it should be reduced to a third if they were conducted in a public hospital. [14] In assessing this category of damages at RM9,333.00, it appeared that there may have been a mathematical error in excluding the cost of bone grafting. Accordingly, I substituted the RM9,333.00 awarded with RM12,666.67. Pain and suffering from future surgeries [15] The claim for associated pain and suffering for each surgery was not seriously contested. As the surgeries were recommended, there was no reason why the claim for RM5,000.00 per surgery was denied. For this reason, I also allowed an additional RM15,000.00. Long term nursing care [16] After pleadings closed, the Plaintiff filed another expert medical report by one Dr. Ramnan Jeyasingam, General Manager & Resident Medical Officer, Columbia Asia Extended Care Hospital dated 26-3-2022 ( ). His role was to assess the Plaintiff and to give his professional opinion on estimating the cost of his long term care. [17] As noted, the Plaintiff had already filed an earlier expert report by Dr. Haji Mohd Noor Manukaran on disabilities following his injuries. [18] On 19-5-2022, after submissions on the matter, the Sessions Court Judge it was prepared after pleadings closed. [19] Dr. Ramnan Jeyasingam was then subpoenaed by the Plaintiff and a witness statement was prepared which substantially reproduced the opinions expressed in his report. In response to objections from the Defendants, the Sessions Court Judge also excluded large portions of his witness statement and proceeded to find that there was no evidence to prove that the Plaintiff required long term nursing care. [20] As there was no substantive reason for excluding the witness statement evidence of Dr. Ramnan Jeyasingam, I disagreed with the reasons given for excluding Dr. Ramnan Jeyasingam evidence at the trial. Even though his medical report was expunged for procedural non-compliance, he was competent to testify to the same matters in the report based on his knowledge having examined the Plaintiff on 25-3-2022. [21] Relevant oral evidence may be taken from a witness even if his written report is not in evidence. If the witness has personal knowledge and his expressed opinions are relevant, justice would be served if the evidence had been dealt with on merits. After all, the Court is not bound to accept expert evidence uncritically. [22] In this case, there were already two expert reports disabilities tendered by the parties respectively. There was also other evidence evidencing the extent of disabilities. [23] I reviewed all the other expert medical reports tendered at the trial:

Dr. Norhidayu binti Ibrahim, Orthopedics Department, Hospital

Dr. Muhammad Firdaus bin Mohd Fauzi/Dr. Mohd Khairizam bin Mohd Yusoff Emergency Department, Hospital Tengku

Dr. Mohd Rusdi bin Draman @ Yusof, Surgical Orthopedics Department, Pusat Perubatan Universiti Malaya 28-1-2019

Dr. Kong Chee Kwan, Consultant Plastic Surgeon, Pusat Perubatan Universiti Malaya 4-2-2019 And in particular, those of

Dr. Haji Mohd Noor Manukaran - Manu Orthopaedic & Trauma

Dr Rajesh Rampal - Life Care Diagnostic Centre 15-10-2020 whose opinions were summarized as follows: Dr. Haji Mohd Noor Manukaran Dr Rajesh Rampal [24] There is no doubt that the Plaintiff suffered severe injuries to his legs, especially his left thigh. The description of Plaintiff immediately following his discharge from hospital warranted care and assistance from his family members. However, he was not paralysed and is ambulating on a wheelchair independently. [25] At the trial some 4 years after the accident, the Plaintiff himself testified that he had not fully recovered and was still using a wheelchair. His evidence was that he still felt pain, cannot stand for long periods, cannot walk far, cannot squat, cannot carry heavy weights, have difficulty going up and down stairs and some wounds have not healed. [26] Consistent with the and the improvement reported over time from 2019 to 2022, none of the experts other than Dr. Ramnan Jeyasingam have recommended long-term full-time nursing care for the Plaintiff. [27] Both Dr. Rajesh Rampal and Dr. Haji Mohd Noor Manukaran mention that the Plaintiff was advised to undertake physiotherapy, wheelchair mobilization and crutch walking. Dr. Rajesh Rampal also noted that the wasting of left lower limb was due to prolonged immobilization and disuse of the left lower limb may improve with physiotherapy. [28] Further, this Court also noted that the Plaintiff has not pursued claims for the cost of wheelchairs, crutches or for long term replacement of the same and have instead, claimed for leg lifts to improve his walking gait, which was awarded. [29] For all of the above reasons, this Court agreed with the assessment of the Sessions Court that while the Plaintiff may need assistance in some activities of his daily living, the extent of his disabilities were not such that a long-term full-time nursing care was required. Loss of earnings [30] The Plaintiff testified that he was employed as a handphone salesman at a phone shop for four months before the accident, since July 2018. employer also testified. They produced what was said to be pay-slips for RM1,400.00 per month for the months July 2018, August 2018 and September 2018. [31] According to the evidence, the Plaintiff was paid in cash and had no EPF or SOCSO accounts. There was accordingly a paucity of corroborating evidence. Evidence of the Plaintiff was challenged as the pay-slips were dated a year after the accident in July 2019, August 2019 and September 2019. [32] This Court noted that the central criterion is deference to the trier of fact as a rule unless the findings are plainly wrong (See Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Administrator Of The Estates Of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1). On this head of loss, the Sessions Court Judge who had the advantage of seeing and hearing the witnesses did not believe either the Plaintiff or the witness identified as his employer, that the Plaintiff was in fact employed and received monthly earnings before the accident. [33] In Ahmad Zulfendi Anuar v. Mohd Shahril Abdul Rahman [2022] 9 CLJ 307, the Court of Appeal also considered a case where loss of future earnings was denied in the absence of credible evidence that the appellant was actually working at the time of the accident, notwithstanding the We observed that notwithstanding the appellant's employer's testimony in court, the appellant failed to recall the name of his employer despite having him as the one and only other person working together with him; failed to properly describe the place of his employment where his evidence contradicts that of his employer's; admitted that he had never been issued any pay slips; denied the signature on the pay slips which was purported to be his as tendered; and testified that he was paid by cash and banked in parts of his salary but never produced his bank statements despite being requested to do so during the trial. There was also no EPF and SOCSO contributions made for the appellant and no income tax return for the business furnished by the appellant's employer. [24] Evidence before the trial court could not have established that the appellant was gainfully employed at the time of the accident or was receiving earnings by his own labour or other gainful activity before he was injured as required under s. 28A(2)(c)(i) and (ii) of the Civil Law Act 1956. [25] The High Court in our view correctly arrived at the determination that the claim of the appellant that he was employed, and at a salary as he alleged, to have been lacking in credibility and patently insufficiently substantiated. The appellant could have easily adduced his bank statements but he did not. The learned JC was correct in holding that an adverse inference under s. 114(g) of the Evidence Act 1950 ought to have been drawn against the [34] In this case, the Sessions Court found that the Plaintiff had failed to satisfactorily prove his claim for loss of employment based on the inconsistent date on the pay-slips adduced and the oral testimony of witnesses that she heard. In the circumstances, I have no good reason to disturb the finding. Loss of Future Earnings [35] The legal basis for this head of loss is section 28A of the Civil Law Act 1956 which provides as follows in subsection (2)(d)(i): for loss of future earnings the Court shall take into account that in the case of a person who was of the age of thirty years or below at the time when he was injured, the number of years' purchase [36] The following observations by the Federal Court in Ngooi Ku Siong & Anor. v. Aidi Abdullah [1984] 2 CLJ 163; [1984] 1 CLJ (Rep) 294 are also instructive: Future loss of earnings or loss of prospective earnings are awarded for real assessable loss i.e., loss that is capable of assessment at the date of the trial. It must be proved by evidence and not by mere speculation... there must be evidence of a real and substantial loss which must not be remote and speculative . [37] Since pre-trial loss of earnings was not proved, the Sessions Court found that loss of future earnings based on his alleged employment prior to the accident also failed and awarded no damages under this head. However, this Court noted that evidence was led at the trial without any objections that the Plaintiff was unable to work due to his disabilities after the accident. It could not also personal circumstances had drastically changed as a result of the accident. [38] The expert opinions of both Dr. Haji Mohd Noor Manukaran and Dr. Rajesh Rampal were that the Plaintiff was unable to work, and the to go back to work but his employer did not want to re-employ him on seeing him using a cane (tongkat). He tried to find other work after the accident but was unsuccessful. [39] Before the accident, the Plaintiff was not schooling as he had stopped schooling after standard 6. He was in good health. He was just about to turn 17 years old at the time of the accident. For someone in his position who is now further handicapped with a physical disability, it is not fanciful or far-fetched to find that he suffered a loss of earning capacity. [40] For the above reasons, this Court finds that the Sessions Court Judge had failed to take into consideration that the evidence supported a claim for the loss of earning capacity as a result of his injury. Although this was not specifically pleaded, it was open to the Court in rejecting the evidence of his loss of earning capacity which was led without objection. [41] In Ahmad Zulfendi Anuar v. Mohd Shahril Abdul Rahman [2022] 9 CLJ 307, the Court of Appeal distinguished between future loss of earnings and loss of earning capacity. The Appellant was awarded for the latter even though he failed to establish the case that he was employed at the time of the accident: The evidence before the trial court could not have established that the appellant was gainfully employed at the time of the accident or was receiving earnings by his own labour or other gainful activity before he was injured as required under s. 28A(2)(c)(i) and (ii) of the Civil Law Act 1956. The claim of the appellant that he was employed, and at a salary as alleged by him, was lacking in credibility and insufficiently substantiated. An adverse inference under s. 114(g) of the Evidence Act 1950 ought to have been drawn against the appellant. The appellant's income was, at best, very sketchy and lacking in consistency such that the decision of the award of the trial court on loss of future earnings should be set aside altogether. (paras 24-26)

In respect of loss of earning capacity, there was no evidence that the appellant could not return to normal work considering that the persons with such disability and even with prosthetic legs are able to return to semblance of normal life and work. Granted however, that the appellant may need to adjust to his disability and endure some pain before returning to his new normal, a lump sum of RM50,000 was awarded as loss of earning capacity based on a 100% liability and interest. The rest of the appellant's appeal on [42] Considering the above, I awarded a lump sum of RM50,000.00 in general damages for loss of earning capacity. UMMC medical bills [43] On 13-10-2018, the Plaintiff was moved from Hospital Banting to Hospital Tengku Ampuan Rahimah ( ). According to the UMMC medical report in evidence, the Plaintiff discharged himself from HTAR and was re-admitted to Banting Hospital where he spent another 12 days. He had infections and according to the Plaintiff, he was advised to amputate, a prospect which he was strongly opposed to. [44] Fearing amputation, the Plaintiff was admitted to UMMC on 26-10- 2018 and was warded for 16 days where he certainly received treatment including intravenous antibiotic therapy, multiple wound debridements, removal of external fixator, split skin grafting and left femur interlocking nail. [45] Considering the above facts, this Court disagreed with the decision of the Sessions Court Judge to deny recovery of the cost of his treatment behalf. In the same way that receipt of insurance proceeds do not absolve a tortfeasor from wrongdoing, there was no valid reason for disallowing treatment. Travel costs [46] It is trite that special damages must be proven but the production of bank statements and receipts are not required in all cases. In this case, there is no reason to doubt that the Plaintiff travelled from his home to hospital for follow-up as evidenced by the information on his hospital appointment card. Oral evidence as to the frequency and means of travel is also acceptable evidence. [47] The Plaintiff claimed RM150.00 per trip for 22 trips totaling RM3,300.00. It was not put to the Plaintiff that he did not make those trips or that the cost was excessive. I therefore allowed this head of loss and s to the hospital. Conclusions [48] On the quantum of damages claimed (and disallowed by the Sessions Court) for the following appeal and awarded: Items Quantum (RM) General damages Future surgeries 12,666.67 Pain and suffering from future surgeries 15,000.00 Loss of earning capacity 50,000.00 Special damages 3,300.00 UMMC medical bills 10,833.70 I affirmed the Sessions Court decision and disallowed the appeal on the quantum of damages claimed (and disallowed by the Sessions Court) for: Items Quantum (RM) General damages Fracture of left fibula 30,000.00 Laceration wound - left thigh 5,000.00 Laceration wound - posterior 5,000.00 Muscle wasting left thigh/calf 5,000.00 Long term nursing care 1,445,184.00 Loss of future earnings 201,600.00 Special damages Loss of earnings 67,200.00 3,400.00 [49] I made no order as to costs. Bertarikh : 22 Januari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu : Darshan Singh, Messrs Darshan, Syed, Amarjit & Partners (Ipoh) Untuk Responden-Responden: Lim Qi Si (with Sufiah Yusoff) Messrs Zaid Ibrahim Suflan T H Liew & Partners (Kuala Lumpur)