Kung Siew Peng v Esvaran A/L Sivaguru (JA-12B-21-06/2022)

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SIVAGURU A/L MUNIANDY ...RESPONDEN-RESPONDEN (DALAM PERKARA MENGENAI MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN NO: JA-B53KJ-120-07/2019

SIVAGURU A/L MUNIANDY …PLAINTIF-PLAINTIF DAN KUNG SIEW PENG …DEFENDAN) GROUNDS OF JUDGMENT Background [1] This is an appeal by the Defendant against the decision of the learned Session Court Judge only on quantum given after a full trial. The trial court recorded contributory negligence on the part of the respondent/appellants by assessing liability against Plaintiff and Defendants to be 5:95 as agreed by parties when they appeared before the Court. This, a slight deviation from what parties have agreed on liability being 10:90 in their submission at the court below. The appeal, however proceeded on quantum only. [2] Arising from this accident, the Plaintiff was on medical leave until 30.1.2019. For completeness, a bit on what transpired on the road at that material night. The 1st Respondent was the motorcyclist of motorcycle number JSH 6854 and the 2nd Respondent being the owner. The appellant Defendant was the driver of car number JFK 2153. The collision occurred on 28.5.2018 at about 9.30pm when the 1st Respondent who was on Jalan Titiwangsa 2 and the Defendant coming from the opposite road and without giving any signal indication, made a sudden turn into the junction at Jalan Titiwangsa 2, Taman Tampoi Indah, Johor Bahru causing the 1st Respondent to collide into the car of the appellant at the yellow box. The 1st Respondent was unconscious after the accident until his admission to the Hospital. The issues on appeal [3] The appeal centered on the complaint that the amount awarded for the injuries being ‘bilateral open fracture tibia and fibula’, ‘muscle wasting’ and ‘scarring’ were beyond the normal trend. The memorandum of appeal in addition, said the award on ‘muscle wasting’ to be an error as it was pronounced as a separate award instead of being considered cumulatively together with those injuries. [4] The appellant said further that awards for physiotherapy and future surgery ought not to have been given, relying on the expert Doctor of the appellant who said the 1st Respondent did not need them. Arising from this error, ‘pain and suffering’ was awarded for future surgery. Other points on appeal relate to loss of earning, said given in absence of proof of employment and loss of earning capacity, given despite both expert Doctors for the appellant and Respondent said the 1st Respondent was able to go back to work. The finding by this Court [5] This Court, relying on the medical report by Dr. Muhammad Syukree of Hospital Sultan Aminah, agreed there were 2 separate injuries suffered by the Plaintiff Respondent and they were injuries of open fractures of the midshafts of the left tibia and fibula, and open fractures of the midshafts of the right tibia and fibula. The trial Court had awarded the Plaintiff by categorization of injury to left and right tibia with a sum of RM50,000.00. This sum was found to be fair by the learned trial Judge, guided by the Compendium of Personal Injury Awards 16/10/2018 and case authority where a lesser sum of RM35,000.00 was awarded but only for left lateral tibial plateau. [6] Similarly, an award of RM30,000.00 was given for the open fracture midshaft right fibula and left fibula, guided by the Compendium which gave a figure of RM12,000.00 to RM14,500.00 for injury to a fibula. Case authority on the other hand was referred where RM20,000.00 was awarded for closed fracture proximal 1/3 of the right fibula, alone. Rightly so, with injuries to the right and left fibula, the sum awarded would have to be slightly higher. [7] With scarring, this Court was of the view that the award of RM8,000.00 given was within the perimeters of the awards in the Compendium and permitted to be treated and compensated, it being a distinct injury from the fracture. A further sum of RM5,000.00 awarded for muscle wasting and this Court found these awards are fair and justified to be awarded, as they were accumulated from the injuries. One injury but not a replicate of the other. Loss of earnings [8] On the loss of earnings, the complaint by the Defendant appellant was said to be absence of proof of the Plaintiff’s earning. Plaintiff had in fact called his employer to testify and had produced his pay slips (see: enclosure 4 at page 110 CMS on pdf). He was employed as a subcontractor on a contract basis just recently after sitting for his SPM the year before and had produced the pay slips for the month of February, March, April and May. [9] Although there was a disparity in the evidence of the Plaintiff when he agreed the salary amount would differ based on the days he came to work monthly, this being contrary to the pay slips presented showing a consistent figure of RM2,100.00 and therefore the pay slips would be untrue. The Plaintiff’s answer, however arose from cross-examination questions suggesting that if the Plaintiff was present at work, then he would be paid that said amount similar to his petrol allowance which he would be deprived of if absence. [10] There was no suggestion that the Plaintiff, apart from the MC given by the Hospital arising from the accident, had been away from work for certain number of days. The employer maintained the working days to be 21 days with a pay of RM100.00 a day and allowance RM250.00. The Plaintiff would be paid for his attendance. The pay slips confirmed the amount of pay received by the Plaintiff. The employer in his testimonies went on to explain the kind of technician job that the Plaintiff was tasked to do including to help in doing the cutting, to help seal the wiring on the wall and to drill holes but not wiring work of grade A technician per se. If required, Plaintiff’s job may involve using the ladder to reach these spots and the wires. [11] The fact that the trial Court had awarded the Plaintiff with the loss of earnings would mean the trial Court was satisfied with the testimonies of both the employer and the Plaintiff. More so, the employer said the Plaintiff would only be paid if he turned up for work, hence both their testimonies support one another. As found by this Court, the testimonies were nothing of too highly improbable to be rejected as the nature of work of the Plaintiff was more of hard labor rather than for professional work of an electrician. [12] The Plaintiff was on MC from 29.5.2018 until 30.01.2019. As such, the amount of loss of earnings as calculated by the trial Judge was: RM2,100.00 + RM250.00 = RM2,350.00 x 1/3 being deduction for daily expenses (RM7,050.00) = RM14,100.00 This is a reasonable sum to compensate the Plaintiff for the 9 months he was on MC. Loss of earning capacity [13] For the Plaintiffs’ partial loss of earning capacity, the trial Judge awarded RM140,300.00, by taking the low basic salary policy of the government to be RM1,200.00. The multiplier of purchase years of 16 is stipulated by section 28 Civil Law Act, deducting the 9 months MC, making a total of 183 months. This was allowed having considered the Plaintiff was on a long rest away from his contractual work by virtue of his MC for 9 months, was not considered back to work with his former employer. The formula relied by the trial Judge to be as follows: RM2,350.00 - RM1,200.00 = RM1,150.00 x 183 months = RM210,450.00 - 1/3 daily expenses (RM70,150.00) = RM140,300.00 [14] The figure RM1,200.00 is a fair estimation and calculation, applying the basic minimal salary amount and the deduction of the 9 months MC that was already captured in the loss of earning calculation, would ensure no double reward given. [15] The case of Ngooi Ku Siong & Anor v. Aidi Abdullah [1984] 2 CLJ 163 serves as a guide to this Court when in dealing with claim for loss of future earning or loss of earning capacity, the Court emphasized the test and said as follows: “[2] The respondent, however, was not entitled to recover damages for loss of future earnings. For the loss of future earnings there must be evidence of a real and substantial loss, which must [not] be remote and speculative. [3] Neither was he entitled to recover damages for loss of earning capacity. The claim for loss of earning capacity is generally available when the plaintiff is in employment at the time of the trial. Though the respondent was not in employment at the time of the trial, there was no substantial risk that he would not get employment again in the future. [4] The claim for loss of earnings under special damages pleaded as at RM400.00 per month for 17 months must be dismissed. The respondent had himself to blame for not making any attempt to seek another employment or to return to his former employment much earlier”. [16] The employer had clearly said he did not offer the Plaintiff to work with him again after the Plaintiff’s 9 months MC was over as he had engaged a new employee as substitute to replace the Plaintiff during the Plaintiff’s absence. There was also no other job the employer intended to offer to the plaintiff. In addition to this, the Plaintiff said he had attempted to apply for a security guard post but was rejected arising from his unstable walking due to the pressure on the knees. This fact of being unemployed can be seen in the expert report by Dr. Jeyaratnam dated 30.5.2019 (see: enclosure 4 at page 75 on CMS pdf). [17] The recovery but with some knee disabilities with frequent breaks or stops required after 10-15 minutes of walk, was noted by Dr. Jeyaratnam. This explain why the Plaintiff’s attempt to secure a job as a security officer failed. However, when he was re-examined by the Defendant’s expert Dr. Yeoh on 18.10.2019 (see: enclosure 4 at page 152 on CMS pdf) he was said to be working at a shop preparing materials for prayer. This, hence justify the trial Judge’s award for loss of earning capacity as the Plaintiff did put his attempt to mitigate the loss, albeit even if working with a lesser income. Dr. Yeoh did not testify neither was this put to the Plaintiff, that he was employed subsequently. Other awards [18] Awards for physiotherapy and future surgery contended by the Defendant ought not to have been given, relying on the expert Doctor Yeoh who said the 1st Respondent did not need them. Arising from this error, ‘pain and suffering’ was awarded for future surgery. This Court had perused the expert report of Dr. Yeoh and found as follows: a) Plaintiff had poor muscle tone in the lower limb; b) Does not require multiple weekly sessions of intensive physiotherapy for multiple months for stiffness or weakness of the joints of the lower limbs; c) He does not require intensive physiotherapy in the toes of his feet; [19] With the conclusion by Dr. Yeoh that “he (Plaintiff) will not have any permanent physical disabilities and will be able to go back to all physical activities”. The question this Court observes is ‘when’ this future event or happening will take place. As far as this Court’s deduction from the above findings, Dr. Yeoh having admitted some disability of poor muscle tone in the lower limb, did not deny that the Plaintiff was still in need of some form of physiotherapy. It must be remembered, Dr. Yeoh did not testify. [20] The learned trial Judge would have been made aware of this fact and moved him to award a minimal sum of RM800.00. This is a reasonable sum to cover the necessary physiotherapy. As to the pain and suffering arising from future surgery to remove the implant, which a sum of RM5,000.00 awarded, there are two different views. Dr. Jeya said it is required whilst Dr. Yeoh disagreed stating it to be unethical to offer removal of implants as it involves risk. The article referred to by Dr. Yeoh however, did not discount an option for surgery as per Dr. Jeya’s advice. [21] The trial Judge accepted the view by Dr. Jeya as it was an advice presented by Dr. Jeya as an option offered to the Plaintiff with reasons for his advice, substantiated in the report. It is up to the Plaintiff if he would want to act on the said advice. As it appears, the Plaintiff sought for this claim in his suit, hence the trial Judge had acted with the view that the Plaintiff would seek for this surgery in future. Thus, he must claim for that award now and not make the claim later, when action have been closed and decided. [22] For all these reasons, the appeal by the appellant is dismissed. The order of the learned trial Judge is maintained. Signed (NURULHUDA NUR’AINI BTE MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 11.03.2025 COUNSEL For the Appellant: Samreet Singh Sagoo Messrs. Lovelace & Hastings Advocates & Solicitors Unit 5-2 Tkt 5 Wisma Bandar No. 18 Jln Tuanku Abdul Rahman 50100 Kuala Lumpur For the Respondent: Subashini Balaskanda Messrs. Zaman & Associates Advocates & Solicitors Suite 12-01 & 12-02 Level 12, Menara TJB