Liaw Yee Wan v 1. ) Phua Han Shin (BL-A53KJ-44-01/2024)

This case concerns a collision at a four-way traffic-light junction between a motorcycle and a car, with conflicting versions surrounding the incident calling for judicial determination.

Having evaluated the totality of the evidence before me, I find on a balance of probabilities that the Plaintiff has established his claim against the Defendants. I, therefore, allow the Plaintiff’s claim with costs.

My reasons for so finding are set out in the analysis that follows.

At all material times, the parties were as follows:

Liaw Yee Wan was the rider and lawful owner of the motorcycle bearing registration number BMR 7956 (the

(ii) Phua Han Shin was the driver of the car bearing registration number BJN 4597 (the First Defendant)

(iii) Saw Siew Bee was the registered owner of the car bearing registration number BJN 4597 (the Second Defendant) MATTERS IN DISPUTE AND EVIDENTIARY SOURCES

The accident occurred at about 1.30 a.m. on 11.1.2023 at the four-way traffic-light junction along Jalan Chan Ah Choo, Pandamaran, Klang. It involved the Plaintiff, who was riding the motorcycle No. BMR 7956 (the motorcycle), and the car No. BJN 4597 (the car) driven by the First Defendant. The collision occurred within the junction, and the sequence of the traffic lights together with the manner in which each vehicle entered it lie at the centre of the dispute.

The parties have presented conflicting versions of how the collision unfolded, with each side attributing fault to the other. These conflicting versions will be examined in a later segment of this judgment.

The twin issues at the heart of this dispute are liability and quantum, the contest turning on who must bear the blame and what award may reasonably be recovered.

In support of his claim, the Plaintiff testified and called the following witnesses:

Sarjan Heaby Alfian bin Rijuan, the Investigating Officer, who provided the investigative foundation of the case (PW1).

(ii) Leo Chui Nie, a clerk from New Victory Zink Works, who appeared as the representative of the Plaintiff’s employer (PW2).

The First Defendant also gave evidence.

It is necessary at this juncture to set out the parties’ conflicting versions as derived from the pleadings, for they serve to frame the central dispute in this action and to illuminate the factual terrain over which the parties are at odds, as follows: The Plaintiff's version

The Plaintiff’s version is that the First Defendant entered the junction against a red light and collided with his motorcycle, which was proceeding lawfully on a green signal. It runs as follows: "5… BUTIR-BUTIR KECUAIAN DEFENDAN PERTAMA. … d. melanggar Plaintif dari arah bertentangan apabila melanggar lampu isyarat merah terhadapnya; … g. memandu dengan sikap cuai dan merbahaya tanpa berhenti di lampu isyarat merah dan perhatian yang baik sehingga melanggar Plaintif dan m/sikal No. BMR 7956; … i. Memandu m/kar No. BJN 4597 tanpa kemahiran yang diperlukan untuk berada di atas jalan raya dan melanggari isyarat lampu merah terhadapnya; …” (See: Paragraph 5 of the Plaintiff’s Statement of Claim) The Defendants’ version

The Defendants’ version is that the Plaintiff entered the junction against a red light, failed to stop his motorcycle when the signal turned red for his lane, and collided with the First Defendant’s car which was turning right on a green light. It runs as follows: “5… BUTIR-BUTIR KECUAIAN PENUNGGANG MOTORSIKAL BMR 7956/ PLAINTIF” …

gagal untuk memerhatikan lampu isyarat yang menunjukkan lampu merah di jalan tersebut;

gagal memperlahankan dan memberhentikan motorsikal BMR 7956 apabila lampu isyarat menunjukkan merah untuk laluannya;

masih menunggang motosikal tanpa mempedulikan tanda lampu isyarat yang menunjukkan merah untuk laluannya dan melanggar motokar BJN 4597 yang ingin membuat pusingan ke kanan setelah lampu isyarat menunjukkan hijau untuknya; …

gagal memberikan motorkar BJN 4597 hak perjalanannya apabila melanggar lampu isyarat merah; …” (See: Paragraph 5 of the Defendants’ Statement of Defence) LEGAL POSITION ON THE BURDEN OF PROOF Statutory provisions Evidence Act 1950 (the Act). Section 101 of the Act reads: “101 Burden of proof “102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

And Section 103 of the Act reads: “103 Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” Precedents Ong CJ (Malaya) in the case of Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151; [1971] 2 MLJ 175 observed: “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.”; see 15 Halsbury (3rd Edn.) p. 260.” (later JCA) in the case of Krishna Murthey & Anor. v. Law Lye Chua [1992] 2 CLJ Rep 668, wherein His Lordship cited Ng Chui Sai v. Maimon Bt. Ali [1983] 1 MLJ 110 and observed: “The onus is not on the defendant to prove that he was not negligent. As was succinctly pointed out by Hashim Yeop A. Sani J (as he then was) in Ng Chui Sai …: In an action for negligence the onus of proving the allegation of negligence rests on the person who makes it unless there are disclosed facts which raise a presumption in favour of the plaintiff. The plaintiff must show affirmatively that there has been a breach of a specific or genuine duty by the defendant and this resulted in the damage to the plaintiff. If he fails to prove this the action must fail.” Seah [1992] 2 CLJ Rep 601, wherein His Lordship observed: “In my view it was unjustified for the Judge to put liability at all on the defendant when the plaintiff had not discharged the onus of proof on him on balance of probabilities that the accident was caused by the negligence of the defendant either wholly or partially and I therefore allowed the appeal of the defendant with costs.” Act were referred to in MGI Securities Sdn Bhd v. Teong Teck Leng & Ors [2000] 5 CLJ 163; [2000] 1 MLJ 354 by K L Rekhraj J wherein His Lordship observed: “...sections 101 and 102 of the Evidence Act 1950 require 'whosoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove those facts do exist'; and here the plaintiff having chosen and elected not to lead the evidence of the oral agreements through its witnesses, the court could only hold that there was no evidence of the plaintiff's before the court to adjudicate upon; and accordingly dismissed the plaintiff's claim with costs.” Court case of U Television Sdn Bhd & Anor v. Comintel Sdn Bhd [2017] 10 CLJ 580; [2017] 5 MLJ 292, wherein it was observed: “35. On the meaning and application of the term "burden of proof" s. 101 of the Evidence Act 1950 ("the Act") states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The "burden of proof" in s. 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The "burden of proof" in s. 102 of the Act shifts from one side to the other according to the weight of the evidence." ARGUMENT ON LIABILITY FIRST ISSUE: WHETHER THE PLAINTIFF HAD DISCHARGED THE BURDEN OF PROOF ON THE BALANCE OF PROBABILITIES PROVING THAT THE ACCIDENT WAS CAUSED BY THE NEGLIGENCE OF THE FIRST DEFENDANT - ASSESSING THE MORE

Having set out the competing versions, I now return to the central issue of liability. As is trite, the Court must consider the evidence as a whole, not simply in terms of assertion, but of substance tested against careful scrutiny.

Learned counsel for the Plaintiff submitted that the Plaintiff had discharged the burden of proof on the balance of probabilities, establishing that the accident was caused by the negligence of the First Defendant.

Opposing the preceding argument, learned counsel for the Defendants submitted that the Plaintiff had failed to discharge the burden of proof on the balance of probabilities. Arguing further, he stated that the Defendants relied on the defence of inevitable accident, contending that the collision was unavoidable and that he ought not to be blamed. Legal framework

I find it apt to note, by way of a curtain-raiser, the observation on the duty of the court to assess the inherent probability or improbability of a version from a set of facts by FA Chua J in the Chua Chong Cher v. Teo Lang Keow & Ors[1970] 2 MLJ 27; [1970] 1 LNS 18, wherein His Lordship observed: “As often happens, a Court on the evidence before it, has to decide which of two conflicting versions is the version to accept. In such a case, a Court in considering which is the more probable one, ought to try and derive what assistance it can get from undisputed facts, if any, which are relevant for the purpose. A Court also ought to consider, from undisputed facts, whether a version put forward as evidence is one which is inherently improbable or not.” (Emphasis added) Chong Seaw Oon (suing The Administrator of The Estate of Wong Kooi Tai @ Wong Foo Keak-Deceased v. Shaari Yaacob) [1988] 1 CLJ 325, wherein His Lordship observed: "… the function of the trial court is to carry out a searching evaluation and assessment of the totality of the oral and documentary evidence in order to determine the truth. In the final analysis, it is not merely a question of whom to believe but rather whose version is more inherently probable which is that prime conclusion.” (Emphasis added) Analysis Jeganarh Samikanu advanced the position that the case disclosed a single version of events. Upon clarification in the course of proceedings, he accepted that two competing versions fall for the Court’s consideration.

I therefore proceed on the footing that the evidence discloses two competing versions, namely:

The Plaintiff’s version - the First Defendant ran a red light and collided with his motorcycle, which was lawfully proceeding on green.

(ii) The Defendants’ version - the Plaintiff ran a red light, failed to stop his motorcycle, and collided with their car turning right on green. (See: Tabarani Mohd Arshad & Anor v. Chan Tenn Yeu [1999] MLJU 126; [1999] 3 CLJ 188; and Boxioni Anak Lubong & Anor v. Rodrick Anak Ale [2025] CLJU 2178).

Considered in light of the afore-cited observations, and weighing them with the factual scores and circumstantial peculiarities of the present case, I respectfully find that the cumulative force of the evidence establishes on the balance of probabilities that the Plaintiff’s version is more inherently probable than that of the Defendants’.

My reasons are these.

The Investigating Officer’s Testimony and the Weight of Neutral

Evidence of Sarjan Heaby Alfian bin Rijuan, who testified in his capacity as the Investigating Officer (PW1), stands at the centre of the evidentiary matrix. As I assess the evidence, it is apparent to me that PW1 undertook a comprehensive investigation covering all relevant aspects, including visiting the collision scene, preparing a sketch plan (Exhibit P 1), assessing contemporaneous reports (Exhibits P7 and D10) and relevant statements, and photographing the relevant photographs (Exhibit P2A-E), the entirety of which demonstrates that the investigation was both thorough and methodical, as reflected in his investigative findings (PW1’s investigative findings).

From that investigation, a clear picture of the incident emerges. The findings are consistent and supported by objective evidence, forming a reliable basis for this Court’s assessment of liability. The investigative findings show:

The traffic signal governing the Plaintiff’s lane was green.

The traffic signal governing the First Defendant’s lane was red.

The First Defendant drove his car in disregard of that red signal and proceeded to execute a right turn.

PW1 rejected the suggestion that the signal on the First Defendant’s lane was yellow at the material time. He was firm that it was red when the collision occurred.

PW1 issued the Outcome of Case Investigation (Exhibit P3).

The First Defendant was found to have contravened Rule 17 of the Traffic Rules (LN 166/59).

PW1 issued a traffic summons to the First Defendant.

In view of the preceding investigative findings, it is appropriate to note the observations of Wong Kian Kheong J (now JCA) in Lim Jeh Haur v Nicholas Thomas Philip & Anor [2019] MLJU 1016; [2019] 1 LNS 1351, wherein His Lordship addressed the important role of an investigating officer’s evidence in reconstructing the sequence and cause of a collision, wherein His Lordship observed: “23. Firstly, a police officer investigating a road accident may give evidence regarding the result of his or her investigation, such as (which are not exhaustive)- IO's knowledge of the accident is derived solely from the results of the IO's investigation … and Opinions of experts 45(1). When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts."(emphasis added).

What I find particularly significant is that PW1, as the Investigating Officer with no personal stake in the outcome of this case, presented an account that accords with the Plaintiff’s version. His findings were not shaped by personal recollection or influenced by emotion, but stemmed from his objective and professional assessment of the scene and related materials. In the words of Lim Beng Choo J (later JCA) in Chan Sau Chuan v. Choi Kong Chaw & Yap Yun Chan [1990] MLJU 9; [1991] 2 CLJ Rep 394: “… although … not an expert witness in the strict sense of the words nevertheless he is more than competent to give his views because of his experience as an investigation officer in traffic accidents and the quality of the evidence he gave in this trial.”

Having had the advantage of observing the trial first-hand, I find that PW1’s evidence remained consistent and measured throughout cross-examination and withstood scrutiny. I therefore regard him as a credible witness whose evidence may safely be accepted. 257; [1962] 1 MLRH 79, where His Lordship stated: "When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If he says he saw a cow jumping over the moon his evidence is, of course, not to be accepted, but if he says he saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of thing we all see every day of our lives) there is not the slightest justification for refusing to believe him. Of course, if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a Police witness or not, who gives evidence on affirmation, should normally be accepted." (Emphasis added)

In the present case, the principle enunciated by Thomson CJ remains apt. PW1’s account was neither improbable nor contradicted by credible evidence. It rested on a coherent evidential foundation, was duly tested in cross-examination, and stood firm, justifying reliance.

Thus, when a neutral investigator independently reaches a conclusion that corresponds with one of two competing versions, that version necessarily gains added probability. Given that both parties drew upon the same investigative material, the fact that PW1’s professional conclusion aligns with the Plaintiff’s version lends it persuasive weight and renders it the more probable account.

(ii) The First Defendant’s Own Admission and the Inference of Negligence

From the cross-examination, the First Defendant admitted that he continued his turn even after observing that the traffic signal had turned yellow and shortly thereafter red (See also: Paragraphs 11 and 20 of the Defendants’ Written Submission). He was aware that the traffic light had turned yellow and thereafter red as he proceeded, but nevertheless chose to continue, thereby breaching his duty of care by failing to stop and to ensure that it was safe to turn. He also accepted that it is a traffic offence to make a turn once the signal turns red. This admission, coming from the First Defendant himself, bears significant probative value. It is an admission that speaks directly to his state of mind and the manner in which he approached the junction.

As I assess it, this admission clearly points to a lack of due care on his part in the prevailing traffic situation. His decision to move ahead despite knowing that the light had changed reflects a conscious disregard for road safety and the degree of care expected of a reasonable driver. From this admission, I draw the clear inference that the collision was precipitated by his own negligence. His own words, in my view, fortifies the Plaintiff’s version and renders it inherently more probable.

The legal position is equally well settled. A plaintiff is allowed to rely on the evidences given by a defendant in proving his claim. This principle was aptly stated by Lim Beng Choon J in Chong Keow v Shaari Yaacob [1988] 1 CLJ Rep 463, adopting the observations of FA Chua J in Sim Guan Soon & Anor v Khoo Ting Hong & Anor [1968] CLJU 138, wherein His Lordship observed: “Be that as it may, as the present proceeding involves a civil action and not a criminal prosecution, the plaintiff can rely on the evidence of the defence to establish his case …”

The same principle was reaffirmed by Gopal Sri Ram JCA (later FCJ) in Tan Kah Khiam v Liew Chin Chuan & Anor [2006] 4 CLJ 715, citing with approval the observations by Hashim Yeop A Sani SCJ in M Mahadevan v S Lourdenadin [1988] 1 CLJ 601, wherein His Lordship stated: “In a civil case, one party's evidence is the other's as well. So, a plaintiff may rely on the defendant's evidence to prove his or her case. The converse is also true.”

Taking these authorities together, I am satisfied that the First Defendant’s admission is not a mere slip of language but a substantive piece of evidence bearing directly on liability. It corroborates the Plaintiff’s account and demonstrates that the collision arose from the First Defendant’s own lack of care and disregard for the governing signal, thereby bolstering the probability of the Plaintiff’s version.

(iii) The Summons and Its Bearing on the Issue of Fault

The summons issued against the First Defendant captures the official record of the incident and highlights the aspects of conduct that drew the attention of traffic enforcement authorities. From this, I draw the following findings:

While the outcome of a police investigation is not determinative of civil liability, it remains a material consideration within the overall evidentiary framework. In this case, PW1’s Outcome of Case Investigation (Exhibit P3) concluded that the First Defendant was at fault for failing to obey the red traffic signal governing his lane, thereby causing the collision.

Though not binding upon me, Exhibit P3 provides valuable context to the contemporaneous understanding of the incident. It reflects the factual assessment reached by the investigating authority at the time which, when read together with the independent evidence before me, aids the Court in determining the circumstances and cause of the collision.

As respects the issuance of the summons, it is well-settled that such issuance does not, by itself, establish liability. That position is affirmed in Mohd Salleh Samad v. Zainuddin Dongking [2001] MLJU 623; [2002] 1 CLJ 139 and Rozita Ahmad & Ors v. Mohd Yusof Saidin & Anor [2015] MLJU 1265; [2015] 1 LNS 1289.

Be that as it may, the issuance of a summons remains a relevant and telling fact that the Court may properly consider. It forms part of the evidentiary landscape to be weighed in determining liability (Bong Chee Min v. Jacknoris Golinjun [2020] MLJU 151; [2020] 1 LNS 120).

PW1’s conclusion that the First Defendant was the offending driver was not conjectural but grounded in objective and verifiable indicators. To avoid misapprehension, I make it plain that the ultimate finding on negligence rests solely with this Court. My conclusion is not drawn from the police report in isolation but from the totality of the evidence adduced. When viewed in that light, PW1’s investigative findings assume persuasive significance, being consistent with the broader factual narrative.

Given PW1’s position as an Investigating Officer in the Traffic Division of the Royal Malaysia Police and his professional competence in the enforcement of traffic regulations, I attach considerable institutional weight to his testimony. Although this is a civil action in tort rather than a criminal prosecution, the factual substratum remains relevant to the Court’s evaluative process. PW1’s evidence, standing unchallenged and supported by his institutional capacity, corroborates the finding that the Defendant’s failure to heed the governing signal was the operative cause of the collision and aligns with the Plaintiff’s version.

(vi) Evidentiary Assessment of the Consistency Between the Plaintiff’s Police Report, Pleadings, and the Broader Evidentiary Matrix

As a starting point, the Plaintiff’s Police Report (Exhibit P7) serves as the First Information Report which lays the foundational narrative of the accident from his perspective and predates any investigative influence. The fact, as it stands, denotes that the accident occurred at approximately 1.30 a.m. on 11.1.2023. The Plaintiff lodged his report at 8.01 a.m. on 17.1.2023. There was a gap of six days in reporting, explained by the Plaintiff’s serious injuries and the medical advice that he remain under rest for recovery.

As I see it, the contents of Exhibit P7 are, in substance, consistent with the material averments in the Plaintiff’s Statement of Claim. Both assert that the Plaintiff entered the junction lawfully while the traffic signal remained green, and that the collision occurred when the First Defendant’s car, approaching from the opposite direction, proceeded against the red light. This alignment between the contemporaneous report and the pleaded case demonstrates a level of internal consistency.

The same narrative coherence is discernible within the broader evidentiary framework. PW1’s investigative findings collectively depict a sequence consistent with the Plaintiff’s narrative of events. Viewed in their entirety, these findings form a coherent evidentiary chain that strengthens the overall probability of the Plaintiff’s version throughout the proceedings.

Be that as it may, such coherence cannot be ascribed to the Defendants’ version. The First Defendant’s police report (Exhibit D10) states that while he was turning into the junction, a motorcycle suddenly approached from the left and collided with his vehicle. No doubt mindful of the trite position affirmed in the Federal Court decision of Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209; [1969] CLJU 52, where it was observed that a police report “is not an encyclopaedia” and “is not the beginning and ending of every case”, Exhibit D10 is conspicuously silent on the presence and condition of the traffic lights at that material moment.

It is only in their Statement of Defence that the Defendants introduce, for the first time, a reference to the traffic lights and their condition. They assert that the Plaintiff entered the junction against a red signal, failed to stop his motorcycle, and struck the First Defendant’s vehicle which was, according to them, turning right on a green light.

However, as the trial progressed, the Defendants’ stance shifted once more. It was then contended that the traffic light had turned yellow as the First Defendant approached the junction, and that he proceeded to turn just as it changed to red, at which point the Plaintiff’s motorcycle struck his car. This evolution in their narrative, reflected in paragraphs 11 and 20 of the Defendants’ Written Submissions, further unsettles the coherence of their account and undermines its overall probability.

Taking these strands of evidence together, I am persuaded that the Plaintiff’s version bears the greater probability. It is anchored in contemporaneous documentation, corroborated by objective material, and remains internally consistent across all stages of the proceedings.

Having considered all the evidence, I find on the balance of probabilities that the Plaintiff’s version represents the more probable version of how the accident occurred. The First Defendant entered the junction against a red light and collided with the Plaintiff’s motorcycle, which was at the material time proceeding lawfully on a green signal.

I shall now take a brief segue to address the defence of inevitable accident advanced by the First Defendant. The central question is whether the accident was inevitable despite the First Defendant exercising reasonable care.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Defendants’ Statement of Defence states: “11. Defendan-Defendan juga menyatakan bahawa kemalangan tersebut adalah sesuatu kemalangan yang tidak dapat dielakkan (inevitable accident) dan Defendan Pertama tidah harus/ wajar dipersalahkan.” (Emphasis added)

(ii) Although the plea was formally raised, I find a complete absence of evidential basis to sustain it. Nothing in the record suggests that the collision occurred despite due caution. From the testimony of the witnesses relevant to the issue, no credible factual substratum emerges to support the claim that the accident was beyond prevention.

(iii) It is well settled that where the Defendant relies on defence of inevitable accident, the burden of proving its inevitability rests squarely upon him (see: Thangachimmah & Anor v. Flower [1968] CLJU 159; [1968] 2 MLJ 248). On that premise, the First Defendant must establish both the actual cause of the collision and that such cause rendered it unavoidable even with the exercise of reasonable care.

(iv) Having scrutinised the evidence in its entirety, I find no indication of any sudden emergency, mechanical failure, or external factor beyond the First Defendant’s control. The traffic lights at the junction were functioning properly. There was no obstruction or unforeseen event that would have prevented him from taking reasonable steps to avert the collision.

It is worth restating that the First Defendant was aware that the traffic light had turned yellow but nevertheless chose to proceed on red, thereby breaching his duty of care by failing to halt and to ensure that it was safe to turn. There is equally no evidence of any circumstance that could have impeded timely braking once the yellow light appeared.

(vi) In my judgment, the opportunity to take reasonable precaution was plainly available, and a reasonable driver would have done so. A driver in the First Defendant’s position, upon seeing the light turn yellow, ought to have anticipated its imminent change to red. His omission to do so stemmed not from necessity but from disregard of due care.

(vii) The collision was, therefore, not an inevitable accident. It ensued from the First Defendant’s failure to heed the governing traffic signal. Proceeding on yellow, rather than preparing to stop, demonstrates a want of ordinary care and makes the accident the direct product of negligence, not inevitability. The First Defendant, in the circumstances, cannot be said to have exercised reasonable care.

(viii) I therefore hold that the First Defendant has failed to discharge the onus of showing that the cause of the collision was beyond his control and unavoidable. The defence of inevitable accident is accordingly not made out. The collision was clearly preventable with the exercise of reasonable care, and I reject the plea in its entirety.

(ix) I find the submission advanced for the Defendants that the Court in Thangachimmah accepted the doctrine of inevitable accident because the Defendant had demonstrated that the collision arose from circumstances which could not have been avoided even with the exercise of due care and skill, to be misplaced. In Thangachimmah, the Court held that the defendant "had failed to discharge the onus placed upon him to show that the cause of the accident was a cause not produced by him and the result of which he could not avoid." Summing-up

On the whole, I accept the Plaintiff’s submission that the Defendants’ defence of inevitable accident is unsustainable.

Learned counsel for the Plaintiff submitted that the collision arose solely from the negligence of the First Defendant, with no evidence of any fault on the Plaintiff.

Rebutting the preceding argument, learned counsel for the Defendants contended that the Plaintiff contributed to the accident through his own conduct at the junction.

I find it apposite to state, at this outset, a succinct and concise summation of the law by Faizah Jamaludin J (now JCA) concerning the authoritative precedents on contributory negligence in the High Court case of Gurisha Taranjeet Kaur & Anor v. Dr Premitha Damodaran & Anor [2020] 9 MLJ 409; [2020] 6 CLJ 446, wherein Her Ladyship observed: “[122] What is contributory negligence and what is the test to determine whether there was contributory negligence? Clerk & Lindsell on Torts, 12th edn., Sweet & Maxwell, referring to Ellerman Lines Ltd v. H & G Grayson Ltd [1919] 2 KB 514 at 535; and [1920] AC 466 at 477; Lewis & Denye [1939] 1 KB 540 at 544; Davies v. Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 309; Jones v. Livox Quarries Ltd [1952] 2 QB 608 at 615 states that: Contributory negligence does not mean that claimant commits a breach of duty towards the defendant,... it means that the claimant failed to use reasonable care for his own safety and so contributed to his own damage. [123] The Federal Court in Ong Ah Long v. Dr. S Underwood [1983] CLJ (Rep) 330; [1983] 2 MLJ 324 held that the learned High Court Judge had applied the correct test in determining whether there was contributory negligence. Syed Agil Barakbah FJ at p. 304 (CLJ); p. 327 (MLJ) held: The learned Judge applied the correct test in that the appellant had failed to prove that the respondent did not on his own interest take reasonable care of himself and contributed by that want of care to his own injury. [Lewis v. Denyé [1939] 1 All ER 310]. The test for contributory negligence in the case of a pedestrian is not whether he is under a duty of care towards the defendant, but whether he was acting as a reasonable man and with reasonable care. (Per Denning LJ in Davies v. Swan Motor Co [1949] 1 All ER 620.) (emphasis added) [124] In Ong Ah Long, the Federal Court referred to an English Court of Appeal case of Lewis v. Denyé [1939] 1 All ER 310, where the court held: In order to establish the defence of contributory negligence, the defendant must prove (i) that the Plaintiff failed to take "ordinary care for himself," or, in other words, such care as a reasonable man would take for his own safety, and (ii) that his failure to take care was a contributory cause of the accident. The doctrine of contributory negligence "cannot be based upon a breach of duty to the negligent defendant": Craze v. Meyer - Dumore Bottlers' Equipment Co Ltd, Salmond on Torts, 9th Edn, at pp 472, 473, and Grayson (H & C) v. Ellerman Line Ltd, per Atkin LJ, at pp 535, [125] In Jones v. Livox Quarries LD [1952] 2 QB 608, Lord Denning said the following as regards contributory negligence: Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for the consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is: What faults were there which caused the damage? Was his fault one of them? (emphasis added) [126] The test in Jones v. Livox Quarries LD, was adopted by Lamin Yunos J (as he then was) in Ruhani Mohiat & Anor v. Abdul Karim

Mat Ali & Anor [1993] 3 CLJ 524; [1993] 2 AMR 1339; [1993] MLJU ” “[127] It is clear from these aforementioned cases that contributory negligence is not based on the claimant's duty of care to the negligent defendant. It is dependent on whether the claimant ought to have reasonably foreseen the harm to himself if he failed to take reasonable care of himself. A person is contributory negligent for the harm caused to himself if he ought reasonably to have foreseen the injury and he did not take reasonable care of himself.”

Having examined the totality of the evidence, I find no basis to attribute any contributory negligence to the Plaintiff. On the contrary, the evidence shows that he exercised the care a reasonable person would take for his own safety. The collision was wholly precipitated by the conduct of the First Defendant. In my judgment, the Plaintiff is not contributorily negligent for the harm caused to himself, for, in the circumstances, he could not reasonably have foreseen the injury and had taken reasonable care for his own safety.

What follows is my analysis of the principal factors that, in my view, demonstrate the Plaintiff’s absence of contributory negligence:

No Evidential Basis for Attributing Contributory Negligence

Having found on the balance of probabilities that the Plaintiff’s version, namely that the First Defendant entered the junction against a red light and collided with his motorcycle which was proceeding lawfully on a green signal, is the more probable account, I am satisfied that the Plaintiff was riding in a proper and lawful manner. His conduct reflected that of a reasonable motorist, and in my view there is nothing in the evidence to suggest that his manner of riding contributed in any way to the collision. Viewed through the factual lens, the danger arose suddenly and could not reasonably have been foreseen, and the Plaintiff had taken the reasonable precautions to his safety. I therefore find no basis to attribute any share of fault to him at this preliminary stage of analysis.

(ii) Agony of the Moment

Turning to the nature of the hazard confronted by the Plaintiff, I find that it arose suddenly, unexpectedly, and without warning. The law recognises that a motorist cannot reasonably be held liable for failing to avoid a danger that manifests in such a manner, particularly when the circumstances render it unavoidable. The hazard in this instance arose from the First Defendant’s own conduct. By proceeding on yellow instead of preparing to stop, and by continuing across the junction after the light had turned red, he demonstrated a want of ordinary care. The situation was not one introduced externally or unforeseeable, but one entirely of his own making. This scenario strongly militates against any inference of contributory negligence, as the danger arose entirely outside the Plaintiff’s control. 1 LNS 45: “To my mind, when a plaintiff is perplexed or agitated when exposed to danger by the wrongful act of a defendant, it is sufficient if he shows as much judgment and control in attempting to avoid the accident as may reasonably be expected of him in the circumstances. … What is done or omitted to be done in the agony of the moment cannot be fairly treated as negligence.”

This principle resonates with the present case. The Plaintiff faced a sudden and unlawful hazard, which afforded no reasonable opportunity to react with precision. It would be neither fair nor legally sound to hold him to a standard of perfection in such a moment. On the evidence, no reasonable course of action was available to avoid the collision, and I am unable to find any fault in his conduct.

(iii) Absence of Contributory Negligence and the Plaintiff’s Reasonable Care for Safety

I find the submission advanced for the Defendants at paragraphs 26 and 28 of the Defendants’ Written Submission that: (i) the Plaintiff bore the burden of ensuring the junction was completely safe before proceeding, and his failure to do so caused the accident, and (ii) a motorist, even when the traffic light is in his favour, remains under a legal duty to ensure safety before entering a junction to avoid endangering other road users, to be unsustainable.

In evaluating this contention, I do not accept the premise that the Plaintiff in the circumstances was required to anticipate negligence on the part of others. The duty of care imposed by law does not oblige one to foresee every conceivable lapse by another road user. It requires reasonable vigilance, not excessive caution. The Plaintiff, having the green light in his favour, could not have reasonably foreseen any risk of personal harm and was entitled to proceed on the assumption that other motorists would obey the traffic signals and act lawfully. And the Federal Court in Ong Ah Long v. Dr. S Underwood [1983] CLJ (Rep) 330; [1983] 2 MLJ 324 makes apparent that contributory negligence does not import a breach of duty toward the First Defendant but arises only where the Plaintiff fails to take reasonable care for his own safety and thereby contributes to his injury. Defendants, such conduct would have placed him in danger from vehicles approaching from behind. His conduct was, in my view, entirely consistent with that of a reasonable and cautious road user. The law assesses human behaviour by the standard of reasonableness, not perfection. It imposes only a duty to act as a reasonable person would under similar circumstances. The Plaintiff fulfilled that duty, and I am satisfied that he was under no obligation to take extraordinary or speculative measures beyond what the objective “reasonable man” test demands (See: Ong Ah Long v. Dr. S Underwood [1983] CLJ (Rep) 330; [1983] 2 MLJ 324).

I now turn to consider the two authorities cited by learned counsel for the Defendants, each dating back more than half a century, in support of his submission.

Radburn v. Kemp [1971] 1 WLR 1502 I find that Radburn, properly understood, does not assist the Defendants but reinforces the Plaintiff’s case. In Radburn, the defendant motorist was held negligent for entering a junction although the lights were in his favour, having failed to ensure it was safe to proceed, while the plaintiff cyclist was found free of contributory fault. Applying that reasoning here, the First Defendant entered the junction without ensuring that the path was clear. Compounding the situation, he did so with full awareness that the light had turned yellow and then proceeded through on red in clear disregard of the duty of care owed to other road users. By the force of Radburn, the First Defendant failed to discharge his duty to exercise reasonable care in navigating the junction, and no part of the blame can properly rest with the Plaintiff. The principle established in Radburn aligns with my finding that the First Defendant’s conduct fell short of the standard of care expected of a reasonable motorist at the junction.

Gan Soo Swee & Anor v. Ramoo [1968] CLJU 42 In Ramoo, the appeal succeeded because the plaintiff failed to establish actionable negligence, and the trial Judge had wrongly inferred that the first defendant knew of the traffic light defect. The present case differs in that it does not involve defective traffic lights, while in the same breath, the Federal Court’s reasoning in Ramoo reinforces the Plaintiff’s position, stating that “The law in relation to junctions controlled by traffic lights is clear. The driver of a motor vehicle entering a cross-roads junction when the lights are green in his favour is entitled to assume that the traffic approaching the junction from his left or right would obey the red signal light prohibiting such traffic from entering the junction.” The Plaintiff, having the green light, was therefore entitled to assume that the First Defendant would comply with the red signal, and any collision resulting from the First Defendant’s breach cannot be attributed to him. Summing up

Weighing the whole compass of the evidence, I find that the Defendants failed to prove that: (i) the Plaintiff failed to take ordinary care for himself; and (ii) that his failure to take care was a contributory cause of the accident, as required by the principles laid in Ong Ah Long. Accordingly, I find that there was no contributory negligence attributable to the Plaintiff. The cumulative weight of the evidence points to the First Defendant as the sole cause of the collision, on the balance of probabilities. ARGUMENT ON QUANTUM GENERAL DAMAGES Medical and Specialist Reports Reports. These describe the injuries sustained by the Plaintiff in the accident. The parties have agreed to their admissibility for this purpose, subject to submission, namely:

Medical Report dated 14.2.2023 prepared by Dr. Santhia Sundar of the Accident and Emergency Department, Pantai Hospital Klang.

(ii) Medical Report dated 12.5.2023 prepared by Dato’ Dr. Siva Kumar Ariaratnam of Subang Jaya Medical Centre.

(iii) Medical Report dated 14.2.2023 prepared by Dr. Sathesh Balasundram of Subang Jaya Medical Centre.

(iv) Medical Report dated 9.5.2023 prepared by Dr. V. Ulagantheran A/L R. Viswanathan of Subang Jaya Medical Centre.

Medical Report dated 7.8.2023 prepared by Dr. S. Sendrew Lavinash of Subang Jaya Medical Centre.

(vi) Clarification Medical Report dated 2.5.2023 prepared by Dr. Sathesh Balasundram of Subang Jaya Medical Centre together with accompanying scan reports.

(vii) Orthopaedic Specialist Medical Report (the Plaintiff’s choice) dated 11.1.2024 prepared by Dr. Suntharalingam of Pantai Hospital, Cheras.

(viii) Oral and Maxillofacial Surgery Specialist Medical Report (the Plaintiff’s choice) dated 20.12.2023 prepared by Professor Dr. Firdaus Hariri of Universiti Malaya Specialist Centre.

(ix) Clarification Medical Report dated 25.3.2024 prepared by Dr. Sathesh Balasundram of Subang Jaya Medical Centre.

Clarification Medical Report dated 27.8.2024 prepared by Dr. S. Sendrew Lavinash of Subang Jaya Medical Centre.

(xi) Orthopaedic Specialist Medical Report (the Defendants’ choice) dated 19.7.2024 prepared by Dr. Gayathri P. Arumugam of Columbia Asia, Petaling Jaya.

(xii) Oral and Maxillofacial Surgery Specialist Medical Report (the Defendants’ choice) dated 19.7.2024 prepared by Datuk Dr. Kathiravan Purmal of Klinik Pergigian Katte. CONFLICTING SPECIALIST REPORTS [2017] 2 CLJ 561; [2016] 4 MLJ 525, where His Lordship addressed with utmost clarity the manner in which conflicting expert medical opinions to be evaluated, that merit quotation in full: “[43] It is trite law that a judge must not consider expert evidence in a vacuum in the sense that the same should not be artificially separated from the rest of the evidence. When there is conflicting expert opinion, a judge should test it against the background of all the other evidence available in that particular case in order to decide which expert evidence is to be preferred. In particular, a judge must have regard to the direct evidence, whether in the form of oral evidence or contemporaneous documents, and the overall circumstances material to the issue at hand. The version more consistent with these ought to be accepted as being more trustworthy and reliable. [44] The Supreme Court of India in Piara Singh and Ors v. State of Punjab 1977 AIR 2274 laid down the approach to be adopted when the opinion of one expert differs from another as follows: What has happened is that two experts, namely, Dr Jatinder Singh and Dr Paramjit Singh had differed in their opinions. The High Court rightly observed that in view, of the difference of opinion between the two experts the evidence of Dr Jatinder Singh must be preferred as it is supported by the evidence of the eye-witnesses whose evidence is both reliable and trustworthy and is also supported by other circumstances proved in the case. It seems to us that where there is a conflict between the opinion of two experts the Court should normally accept the evidence of the expert whose evidence is corroborated by direct evidence of the case which according to the Court is reliable. [45] It is also trite that a trial judge should not be quick to reject evidence of an expert whose findings are based on reports of facts unless the judge is satisfied that the inference or opinion derived from the said reports of facts is unsound. In evaluating the conflicting experts' evidence the approach ought to be to examine the scientific grounds and bases on which they rely (Singapore Finance Ltd v. Lim Kah Ngam (S'pore) Pte Ltd & Eugene HL Chan Associates (Third Party) [1984] 1 LNS 3; [1984] 2 MLJ 202).” (Emphasis added) APPROACHING THE CLAIM HEADINGS

In assessing the damages, I have weighed the Medical and Specialist Reports, the guidance of the Compendium, the comparative levels of compensation in cognate cases, the residual disabilities and the particular circumstances which give this case its distinct character.

Upon that canvas, I now turn to my assessment of damages.

Head Injury: Cerebral Concussion Causing Loss of consciousness, retrograde amnesia and loss of lordosis

Learned counsel for the Plaintiff submitted an amount of RM20,000.00. The comparable awards relied upon were the cases of Chandramogan Manogaran & Anor v. Kong Wai Seng & Ors [2021] MLRHU 249, wherein the High Court awarded RM16,000.00 and Rosila Hussin lwn. Pengerusi Lebaga Kemajuan Pertanian Muda (MADA) & Yang Lain [2024] PILRU 45, wherein the court awarded RM15,000.00 for loss of consciousness and retrograde amnesia

79.

The Compendium states that compensation for:

cerebral concussion - loss of consciousness stands at RM6,000.00

retrograde amnesia ranges from RM1,000.00 to RM3,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The Plaintiff sustained a cerebral concussion as a result of the trauma and impact of the accident. While often associated with loss of consciousness, the two are not identical. Loss of consciousness is a symptom arising from the concussion rather than the concussion itself.

The Plaintiff also suffered retrograde amnesia, involving the loss of memory of events preceding the accident.

The Plaintiff sustained loss of lordosis, indicating a spinal abnormality or alteration in the natural curvature of the vertebrae, as evidenced in the Cervical Spine CT scan report at page 18 of Bundle B.

The Plaintiff’s Specialist, upon his examination, observed that the Plaintiff experienced weakness of memory and concentration attributable to post-concussional syndrome. He expressed his opinion in the following terms: “He has poor memory and concentration due to post-concussional syndrome ……” The Plaintiff suffered not only a cerebral concussion, manifested by loss of consciousness and retrograde amnesia, but also a distinct spinal injury evidenced by loss of lordosis.

While the Compendium provides defined ranges for cerebral concussion - loss of consciousness and retrograde amnesia, my assessment must extend also to the loss of lordosis as an accompanying injury, for this condition reflects a structural abnormality of the spine rather than a neurological effect of the concussion.

Addressing the submission advanced for the Defendants at paras 37 and 38 of the Defendants’ Written Submission concerning the proposed quantum for the head injury, I find that such a figure is wholly inadequate, as it fails to account for the retrograde amnesia and the loss of cervical lordosis suffered by the Plaintiff. These are not minor sequelae but significant indicators of the gravity of the trauma sustained.

I, therefore, award RM15,000.00 under this head of injury.

(ii) Right Condylar Neck and Right Parasymphysis/ Symphysis of Mandible Fracture

Learned counsel for the Plaintiff submitted an amount of RM35,000.00. The comparable awards relied upon were the cases of Ahmad Hidayat Taufiq Mokhtar lwn. Kevinraj Jayakumar & Satu Lagi [2022] PILRU 60, wherein the Court awarded RM30,000.00 for right body and left parasymphysis of mandible fracture, and Long Abdul Rahman Mohd Fauzi lwn. Mohd Elmi Ismail dan Satu Lagi [2018] PILRU 52, wherein the Court awarded RM30,000.00 for left parasymphysis and right angle of mandible.

84.

The Compendium states that compensation for mandible fracture ranges from RM14,500.00 to RM30,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The Plaintiff sustained two separate injuries:

a right condylar neck fracture, being a break in the neck of the condyle, the upper, rounded portion of the mandible connecting to the temporomandibular joint; and

(ii) a right parasymphysis/symphysis fracture of the mandible, being a break in the front or lateral region of the jaw. While they are both mandibular fractures, they are anatomically and functionally distinct.

The Plaintiff’s Specialist Report states: “Maximum mouth opening is 28 mm (reference: tooth #23 and tooth #33) and was limited due to pain at bilateral temporomandibular joint region Currently, Mr Liaw Yee Wan’s maximum mouth opening can only reach to approximately 28mm and is limited due to pain at the TMJ region. This will contribute to difficulty in masticatory function.”

Addressing the Defendants’ submission at paragraphs 39 and 43 concerning the proposed quantum for multiple facial fractures, I find the global amount of RM15,000.00 to be manifestly inadequate for the following reasons:

The preceding submission disregards the number, nature, and distribution of the fractures, each affecting a distinct facial region. While the principles in Tay Tong Chew & Anor v Abdul Rahman bin Haji Ahmad [1985] 1 MLJ 50 & Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786 favour a global assessment, I find that the distinct character of the injuries in this case warrants a more individualized evaluation.

(ii) The Compendium specifies distinct ranges of compensation for each facial structure. Guided by this, and recognising the individual character of the fractures, I treat each as falling within its respective range rather than merging them into a single award.

(iii) The medical evidence, supported by the facial anatomical illustration in the Plaintiff’s written submission, demonstrates the separateness of the affected bony structures, reinforcing the conclusion that each fracture constitutes a distinct head of injury for the purpose of assessment.

I, therefore, award RM30,000.00 under this head of injury.

(iii) Right maxillary fracture involving all walls of the Maxillary Sinus

Learned counsel for the Plaintiff submitted an amount of RM40,000.00. The comparable awards relied upon were the cases of Razali @ Mohd Leey Subeh lwn. Safwa Global Venture (M) Sdn Bhd & Satu Lagi [2024] PILRU 22, wherein the Court awarded RM40,000.00 for fractures over anterior, lateral and posterior wall of right ancillary sinus with intrasinus hematoma which according to him mirrors the present injury, and Selvam a/l Muthoo v Juniza binti Jubri [2012] 2 PIR [23] SC, where the Court awarded RM20,000.00 for fracture of the only right maxillary bone.

89.

The Compendium states that compensation for a maxilla bone ranges from RM14,500.00 to RM28,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The Plaintiff sustained a right maxillary fracture involving all walls of the maxillary sinus, namely the anterior, posterior, superior, and medial walls. I take the view that a fracture confined to a single wall would indicate lesser anatomical severity and a lower quantum of damages. Whereas, involvement of multiple or all walls demonstrates far greater severity and justifies a higher award.

Clarification Medical Report states: “Right maxillary facture involving all walls of the maxillary sinus”

I reiterate my earlier finding declining to adopt the global sum of RM15,000.00 for the multiple facial fractures advanced for the Plaintiff, and I apply the same reasoning here.

I, therefore, award RM30,000.00 under this head of injury.

(iv) Right Zygomatic Arch Fracture

Learned counsel for the Plaintiff submitted an amount of RM20,000.00. The comparable awards relied upon were the cases of Suresh a/l Suppiah lwn Abdul Mutalib B Naina Mohamad [2012] 1 PIR [50], wherein the Court awarded RM20,000.00 fracture of left zygomatic, and Tee Chin Kuee & 2 Ors v. Mohd Fauzi B Desa [2012] 2 PIR [35], wherein the Court awarded RM20,000.00 for fracture of left zygomatic bone.

94.

The Compendium states that compensation for fracture of zygomatic bone ranges from RM9,000.00 to RM12,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The figure advanced for the Plaintiff is supported by established precedents.

I reiterate my earlier finding declining to adopt the global sum of RM15,000.00 for the multiple facial fractures advanced for the Plaintiff, and I apply the same reasoning here.

I, therefore, award RM20,000.00 under this head of injury.

Right lateral and medial pterygoid fracture

Learned counsel for the Plaintiff submitted an amount of RM30,000.00. The comparable awards relied upon were the cases of Razali @ Mohd Leey Subeh lwn. Safwa Global Venture (M) Sdn Bhd & Satu Lagi [2024] PILRU 22, wherein the Court awarded RM40,000.00 for fracture over medial and lateral process of right pterygoid bone and right frontal bone, and R Zakariya R Abdul Hamid v Ruthven Theodore Bowman & Anor [2018] PILRU 15, wherein the Court awarded RM20,000.00 for medial and lateral pterygoid fracture.

99.

The Compendium states that compensation for base of skull fracture ranges from RM12,000.00 to RM18,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The figure advanced for the Plaintiff is supported by established precedents.

The Plaintiff sustained fractures of the right lateral and medial pterygoid. I take the view that a fracture confined to a single bony structure would indicate lesser anatomical severity and warrant a lower quantum of damages. By contrast, involvement of two or more structures demonstrates far greater severity and justifies a higher award.

I reiterate my earlier finding declining to adopt the global sum of RM15,000.00 for the multiple facial fractures advanced for the Plaintiff, and I apply the same reasoning here.

I, therefore, award RM20,000.00 under this head of injury.

(vi) Multiple teeth loss and comminuted fracture of Alveolar Bone

Learned counsel for the Plaintiff submitted an amount of RM40,000.00 for the loss of all eleven teeth. The comparable awards relied upon were from the case of Harun B Saaid & Anor v Chong Sing Choy [2010] 1 PIR [12], wherein the Court awarded RM12,000.00 for the fracture of four teeth, with each fracture valued at RM3,000.00.

Whereas, learned counsel for the Defendants submitted an amount of RM33,000.00. The comparable awards relied upon were the cases of Mohd Rashidi b Abdul Rahman & 3 Ors v. Mohamad Tarmizi b Zahari [2021] 1 PIR [57], wherein the Court awarded RM8,000.00 for four teeth, and Koogeleswaran a/l A Soundarajan (seorang kurang upaya yang menuntut melalui ibunya, Kalaiveni a/p Thangiah sebagai wakil litigasi beliau) v. Norzarina bt Roslan & Anor [2023] 2 PIR [16], wherein the Court awarded RM20,000.00 for five teeth.

The Compendium states that compensation for ten to twenty affected teeth ranges from RM21,500.00 to RM36,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff sustained the loss of eleven teeth in total, affecting both the upper and lower sets, a permanent deprivation with no prospect of natural regrowth.

The injury involved not only the loss of eleven teeth but also damage to two additional teeth, namely the impacted and erupted lower wisdom teeth, showing that the trauma extended across both dental arches and affected the overall structural integrity of the mouth.

Addressing the submission advanced for the Defendants at paras 54 and 57 of the Defendants’ Written Submission concerning the proposed quantum for the multiple teeth loss, I find the amount of RM33,000.00 to be inadequate. To my mind, the Defendants failed to consider the consequential impact on the remaining teeth and dental structure, which would undoubtedly have been affected even if not completely lost. The injury goes beyond the mere number of missing teeth, but concerns the Plaintiff’s overall oral function and appearance, both of which have been materially impaired.

I, therefore, award RM40,000.00 under this head of injury.

(vii) Bilateral Periorbital Hematoma with Chemosis, Right Subconjunctival Haemorrhage and Floor Orbital Bone Fracture

Learned counsel for the Plaintiff submitted an amount of RM25,000.00. The comparable awards relied upon were the cases of Zamri Md abd Ghani & Anor v. Ho Ch’ng Chuan [2018] 1 LNS 1262, wherein the Court awarded RM10,000.00 for orbital wall, Zainal Abidin Ismail lwn. Nor Padilah Awang [2024] MLRHU 105, wherein the High Court awarded RM8,000.00 for periorbital hematoma with chemosis, and Kumaran a/l Pannerselvam & Anor v. Ng Wee Khim & Anor [2011] 2 PIR [34], wherein the Court awarded RM5,000.00 for periorbital hematoma.

Whereas, learned counsel for the Defendants submitted an amount of RM8,500.00. The comparable awards relied upon were the cases of Nur Alia Mohamad Radzhi (seorang budak dan pendakwaan dibuat oleh bapa angkat dan wakil litigasi Mohamad Radzhi hin Hasan) v Fazilah binti Abdul Aziz (Mohd Radzhi bin Hasan & Anor – Third Parties) [2022] 1 PIR [14], wherein the Court awarded RM9,000.00 for bilateral eyes periorbital haematoma, chemosis of both eyes and left eye traumatic mydriasis and Safarizuan bin Mustafa v. Leizaini binti Abd Gani [2018] 2 PIR [52], where the Court awarded RM8,000.00 for left periorbital hematoma with chemosis.

The Compendium states that compensation for:

an orbital bone injury ranges from RM7,000.00 to RM9,500.00.

a hematoma in one eye ranges from RM3,000.00 to RM4,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The specialist findings reveal that the Plaintiff sustained bilateral periorbital hematoma with chemosis, right subconjunctival haemorrhage, and floor orbital bone fracture. The periorbital hematoma, being bilateral and accompanied by chemosis, demonstrates that the trauma was neither superficial nor minor but significant, affecting both ocular regions. In addition, the right subconjunctival haemorrhage and orbital bone fracture further attest to the severity of the injury, involving both soft tissue and bony structures.

Having considered the Defendants’ submission at paragraphs 48 to 50 of their Written Submission, together with the Plaintiff’s evidence and the medical reports, I find the proposed sum of RM8,500.00 inadequate.

I take the view that an injury confined to a single orbital or periorbital structure would indicate lesser anatomical severity and warrant a lower quantum of damages. By contrast, the involvement of multiple structures, as in this case, demonstrates far greater severity and justifies a higher award.

I, therefore, award RM20,000.00 under this head of injury.

(viii) Soft Tissues Injury, Multiple Laceration and Abrasion Wounds

Learned counsel for the Plaintiff submitted an amount of RM15,000.00. The comparable awards relied upon were the cases of Chin Kong Kau Toh Tong Temple Kluang & Anor v Abdul Aziz Long [2021] 1 LNS 1494, wherein the High Court awarded RM10,000.00 for laceration wound, and Suhaila Deraman & Satu Lagi lwn. Goh Kee Sen & Satu Lagi [2014] PILRU 150, wherein the Court awarded RM10,000.00 for deep laceration over the upper lip, chin and inside of the mouth.

Whereas, learned counsel for the Defendants submitted an amount of RM2,000.00, relying on the comparable award in cases of Kalimuthu a/l Govanasamy v Abdul Hadi b Abdullah & Anor [2024] 2 PIR [24], wherein the Court awarded RM2,000.00 for multiple laceration wounds, and Noor Nabillah binti Mohd Salleh v. Rofisah binti Othman & Anor [2019] 2 PIR [26], wherein the Court awarded RM2,000.00 for multiple laceration wounds over the left knee.

As for the soft tissue injuries, learned counsel for the Defendants submitted an amount of RM3,000.00, relying on the comparable award in cases of Latipah binti Omar v Mohammad Izzat b Che Ab Aziz & Anor [2025] 1 PIR [5] and Muhammad Aiman b Azizan & Anor v Leong Sow Kwan [2025] 1 PIR [6], wherein the Court awarded RM3,000.00 for soft tissue injuries.

The Compendium states that compensation for lacerations (single to multiple) ranges from RM2,500.00 to RM9,500.00, and for a lip laceration ranges from RM1,000.00 to RM3,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The Plaintiff sustained multiple soft tissue injuries comprising distinct and varied wounds, including lacerations and abrasions. The character and variation of these injuries reflect the operation of multiple traumatic forces rather than a single impact, indicating that the harm was neither simple nor minor.

Addressing the submission advanced for the Defendants at paragraphs 44 to 47 and 58 to 59 of the Defendants’ Written Submission concerning the proposed quantum for multiple lacerations and soft tissue injuries, I find the amount of RM2,000.00 and RM3,000.00 to be unjustifiably low. To my mind, the Defendants have failed to appreciate both the number of injuries and their location, being on the facial region of the Plaintiff. The authorities cited for the Defendants are distinguishable on the facts, as the injuries in those cases were of a different nature and not comparable in extent or location.

I, therefore, award RM10,000.00 under this head of injury.

(ix) Fracture of Clavicle

Learned counsel for the Plaintiff submitted an amount of RM30,000.00. The comparable award relied upon was the case of Manjeet Singh a/l Sundav Singh v Muhammad Yusuf bin Mahazer & Anor [2011] 2 PIR [7], wherein the court awarded RM30,000.00 for clavicle fracture.

Whereas, learned counsel for the Defendants submitted an amount of RM16,000.00. The comparable awards relied upon were the cases of Phadung Sak a/l Put v. Dato’ Haji Adib Azhari b Daud & 4 Ors [2023] 1 PIR [25], wherein the court awarded RM16,000.00 for closed fracture of the right clavicle, and Nora Bt Samion (menuntut untuk diri sendiri dan menuntut sebagai ibu dan/atau wakil litigasi sah kepada Plaintif Kedua) & Anor v Sahar Azmi bin Yusof & Anor [2025] 1 PIR [9], wherein the Court awarded RM25,000.00 for closed fracture of the left shaft clavicle.

The Compendium states that compensation for clavicle fracture ranges from RM13,000.00 to RM28,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff sustained a fracture of the clavicle which required surgical intervention with the insertion of an implant. The gravity of the fracture and the necessity of operative fixation demonstrate that the injury was of considerable severity and entailed substantial structural compromise.

The Plaintiff’s Specialist Report sets out the residual disabilities attributable to the clavicle fracture, which include the following: (i) there is limitation of movements of left shoulder; (ii) tenderness and deformity of the left clavicle; (iii) there is restriction of rotation movements of the left shoulder; and (iv) stiffness of the left shoulder. The Plaintiff’s Specialist Report further states that the Plaintiff will have difficulties in undertaking jobs and activities that require prolonged use of left upper limb and carrying of heavy objects.

The Defendants’ Specialist Report sets out the following observations in relation to the clavicle fracture, which include:

the range of movement of the left shoulder is reduced; (ii) anteroposterior and lateral view of the left shoulder show malunited fracture of the clavicle; and (iii) the Plaintiff’s complain of occasional discomfort over the left shoulder on exertion.

Based on the findings of both Specialists, it is evident that the Plaintiff suffers from residual disabilities and reduced functional capacity of the left shoulder resulting from the left clavicle fracture sustained in the accident.

Addressing the submission advanced for the Defendants at paragraphs 51 to 53 of the Defendants’ Written Submission concerning the proposed quantum for the fracture of the left clavicle, I find the amount of RM16,000.00 to be low. To my mind, the Defendants have disregarded the residual disabilities arising out of the injury and the persistent limitation in shoulder movement.

I, therefore, award RM30,000.00 under this head of injury.

Multiple Scarring

Learned counsel for the Plaintiff submitted an amount of RM20,000.00. The comparable awards relied upon were the cases of Norashikin Bt Baharim & Anor v. Jamil B Taib & Anor [2010] 1 PIR [5], wherein the court awarded RM30,000.00 for multiple facial scarring, and Mohd Yunan B Che Ya v Azami B Ahmad & Anor [2009] 2 PIR [50], wherein the court awarded RM20,000.00 for 9 cm scar over medial malleolus, 11 cm curvilinear scar over the anterior aspect left knee and 14 cm scar over the lateral aspect lower third of left leg.

Whereas, learned counsel for the Defendants submitted an amount of RM3,500.00. The comparable awards relied upon were the cases of Bala a/l Arumugam v. Pon Siew May & Anor [2023] 2 PIR [14], wherein the Court awarded RM3,000.00 for multiple scars and Yugentrean a/l Suresh & Anor v. Chin Wai Loon & Anor [2023] 1 PIR [9], wherein the Court awarded RM4,000.00 for multiple scars.

The Compendium states that compensation ranges from RM6,000.00 to RM36,500.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist Report (Orthopaedic Specialist) states:

“10cm x 1cm hypertrophic scar on the left clavicle”;

(ii) “3cm x 1cm scar on the face”;

(iii) “Multiple small scars on the face”; and

(iv) “2cm x 1cm scar on the left eyebrow.” Photographic evidence in the report highlights the respective scars. According to the Plaintiff’s Specialist, the scars are hypertrophic in nature.

The Plaintiff’s Specialist Report (Oral and Maxillofacial Surgery Specialist) states: “Facial scars of concerned following the accident: a. Right retromandibular area (Fig. 4a) b. Chin region (Fig. 4b) c. Lateral to right eye brow region (Fig. 4c)” Photographic evidence in the report highlights the respective scars.

The Defendants’ Specialist Report (Orthopaedic Specialist) states: “Scars: Healed scar over the right eyebrow measuring 2 cm. Healed scar over the face measuring 3 cm. Healed scar over the left shoulder measuring 10 cm.”

The Defendants’ Specialist (Oral and Maxillofacial Surgery Specialist) confirms the presence of the scars. Photographic evidence in the report highlights the respective scars.

There was no dispute that the Plaintiff sustained not solitary scars but multiple, openly visible marks resulting from the injuries, particularly on exposed areas, leaving clear and permanent cosmetic consequences.

Addressing the submission advanced for the Defendants at paragraphs 60 to 63 of the Defendants’ Written Submission concerning the proposed quantum for multiple scars , I find the amount of RM3,000.00 to be unrealistically low, given that the scars remain visibly disfiguring on the facial region of a young Plaintiff. The passage of time has not diminished their prominence, and the psychological impact of such visible scars cannot be understated. The Court must therefore consider the Plaintiff’s age, the visibility of the scars, and their permanent nature.

I, therefore, award RM20,000.00 under this head of injury.

(xi) Wasting of Muscles

Learned counsel for the Plaintiff submitted an amount of RM10,000.00. The comparable award relied upon were the case of Khairul Amri B Subri & Anor v. Mohd Sofi B Saad & 2 Ors [2008] 1 PIR [65], wherein the court awarded RM10,000.00 for 2.5 cm muscles wasting on two parts of the body.

Whereas, learned counsel for the Defendants submitted an amount of RM3,000.00. The comparable awards relied upon were the cases of Mohamad Syazwan b Badrul Hisham & Anor v Muhammad Fikri b Mohd Kudus & Anor [2021] 2 PIR [47] and Eswaran a/l Nagalingam v Hew Heng Yi & Anor [2023] 1 PIR [2], wherein the Court awarded RM3,000.00 for muscle wasting of right tight and calf.

The Compendium states that compensation for muscle wasting ranges from RM3,000.00 to RM5,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff exhibited muscle wasting on both sides of the left arm and forearm, indicating a loss of muscle mass consistent with disuse and post-traumatic impairment.

Addressing the submission advanced for the Defendants at paragraphs 64 to 67 of the Defendants’ Written Submission concerning the proposed quantum for muscles wasting, I find it to be unreasonably low and not reflective of the overall impairment proved on the evidence. The Plaintiff’s condition affected not one but two regions, namely the arm and the forearm. The broader area of involvement necessarily reflects a higher degree of functional loss and discomfort.

I, therefore, award RM10,000.00 under this head of injury.

(xii) Post-Traumatic Sympathetic Dystrophy

Learned counsel for the Plaintiff submitted an amount of RM10,000.00. The comparable awards relied upon were the cases of Tan Chit Cuang & Satu Lagi lwn Chua Chu Hua [2015] 1 LNS 1302 and Gunalan Chandakesan & Anor Tamil Arusu Velu [2014] 1 LNS 928, wherein the High Court affirmed the amount RM10,000.00 awarded by the Sessions Court for Posttraumatic Sympathetic Dystrophy.

Whereas learned counsel for the Defendants submitted that the Plaintiff’s claim under this head ought to be rejected. He contended that the diagnosis of Post-Traumatic Sympathetic Dystrophy rested solely upon the Plaintiff’s subjective complaints, unsupported by any objective clinical tests. In his view, there was therefore no reliable medical basis to sustain the claim.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff expressly pleaded Post-Traumatic Sympathetic Dystrophy in his statement of claim under “BUTIR-BUTIR KECEDERAAN PLAINTIF” (See: Paragraph 7 of the Plaintiff’s Statement of Claim).

The Plaintiff led unchallenged evidence that the discomfort in his left shoulder intensified during cold conditions (See:

The Defendants did not impugn the accuracy or credibility of the preceding testimony. The uncontradicted evidence carries considerable weight and supports a finding that the pain experienced by the Plaintiff was genuine, enduring, and materially disruptive to his daily activities.

The Plaintiff’s Specialist, giving evidence in his capacity as an Orthopaedic Specialist, concluded that the Plaintiff had sustained post-traumatic sympathetic dystrophy. His report states “The numbness on the left clavicle worst during the cold weather is due to Posttraumatic Sympathetic Dystrophy (a nervous response to injury resulting in pain and swelling exaggerated in the cold). This condition is usually permanent.” To argue that there was no reliable medical basis to sustain the claim is, in my view, unsustainable, having regard to the clear explanation provided in the preceding report.

The Defendants offered no express contradictory finding negating the conclusions of the Plaintiff’s Specialist. To my mind, the absence of such a finding does not diminish the credibility or weight of the Plaintiff’s evidence. This is especially so when considered alongside the Plaintiff’s unchallenged testimony regarding the exacerbation of his condition during cold weather.

Applying the principle established in Jitweer Singh, I test the conflicting Specialists’ Reports concerning the Post-Traumatic Sympathetic Dystrophy against the totality of reliable evidence and the overall circumstances. Having done so, I find the Plaintiff’s Specialist’s Report to be more consistent with the evidential matrix and therefore the more trustworthy and reliable.

I, therefore, award RM10,000.00 under this head of injury.

(xiii) Pain and Suffering for the bone grafting surgery

Learned counsel for the Plaintiff submitted that the Plaintiff ‘s Specialist recommended two future surgeries, namely: (i) removal of the plate and screw on the left clavicle; and (ii) bone grafting for the upper and lower arch. He submitted an amount of RM10,000.00 for each surgery, totalling RM20,000.00. The comparable awards relied upon was the cases of Fazinu Maryamin Mohamed v. See Pay Ling [2015] 5 LNS 10 wherein the Court awarded RM20,000.00 for pain and suffering arising out of the bone grafting surgery, and Ahmad Basit Suri lwn. Muhamad Hafizul Abdul Safari & Satu Lagi [2016] 5 LNS 44 in which the Court awarded RM10,000.00 for pain and suffering for future surgeries. Arguing further, he submitted that the Plaintiff had, in any event, undergone the surgical procedure to remove the plate and screw from the left clavicle.

Whereas learned counsel for the Defendants submitted that the appropriate amount should be RM5,000.00, on the basis that the claim related solely to a single surgical procedure for dental implants.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

I tethered reliance to the High Court case of Shanmugam Gopal, where Mohd Noor Abdullah J (later JCA) reversed the Sessions Court Judge’s decision in not granting the award for pain and suffering for future operation wherein it was observed: “The next issue raised by the appellant's counsel was with regard to the failure of the Sessions Court judge to make an award for pain and suffering for the future operation which the plaintiff had to undergo for the removal of the plate and screws. Undoubtedly, no person likes to undergo an operation. The anxiety caused is terrible. The plaintiff will have to travel back and forth from the hospital for dressing of the surgical wound and the removal of stitches. General damages which are awarded for a tortuous act committed against a person or his property is a civil remedy which has as its aim to put the injured party back as it were, as far as possible to his original position maintained by him prior to the tortuous act which resulted in injury or damage…. Although this is a future operation, the award for pain and suffering has to be made at the date of the decision so as to bring about the finality of the claim.”

I, therefore, award the sum of RM10,000.00 for the pain and suffering of the bone grafting surgery.

The Plaintiff’s Family’s Travelling Expenses to Visit the Plaintiff

Learned counsel for the Plaintiff submitted an amount of RM280.00 for the Plaintiff’s family’s travelling expenses to visit the Plaintiff whilst he was in the hospital.

Whereas, learned counsel for the Defendants submitted that as the claim was not supported by evidence, a reasonable global sum of RM300.00 would be appropriate for the Plaintiff’s family’s travel expenses in visiting him during his hospitalisation, as well as for the Plaintiff’s own travel costs for outpatient treatments.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff expressly pleaded the Plaintiff’s family’s travelling expenses to visit the Plaintiff whilst he was in the hospital in paragraph 7(a) under “BUTIR-BUTIR GANTIRUGI KHAS PLAINTIF” of his statement of claim, constituting part of the special damages.

The Plaintiff led unchallenged evidence in court indicating that his family members visited him whilst he was in the hospital.

Given the factual canvas of the present case, it requires little imagination to accept that the Plaintiff, a 23-year-old confined to hospital by injury, would be visited by his family. Such visits are the natural and foreseeable response to his condition, and they inevitably attracted costs, which were properly pleaded and substantiated by direct testimony in court.

Addressing the submission advanced for the Defendants at paragraphs 72 to 76 of their Written Submission, I am guided by the settled principle that the Court may take judicial notice of the Plaintiff’s and his family’s travel, considering both the distance and the frequency of such journeys.

L C Vohrah J in Kasirin Kasmani v. The Official Administrator & Anor [1991] 1 MLRH 325; [1991] 2 CLJ 800 observed: “As to the claims for the items of special damages not agreed upon, in the absence of any proof of actual expenditure in the form of receipts I would award the sum of RM560 at the rate of RM20 per day for the wife's transport and living expenses for the 28 days she had to reside in Johore Bahru in order to visit the plaintiff at Hospital Sultanah Aminah in Johore Bahru…. Again in the absence of actual proof, I would award the sum of RM400 for her transport expenses for her visits to the plaintiff at Hospital Daerah Banting which is near the kampong where she lived.”

Also, I subscribe to the observation by Yusof Abdul Rashid J in Chan Kim Hee, wherein His Lordship observed: “The court was of the view that the taxi fare to and from Malacca General Hospital was about $20. It was reasonable for the members of the plaintiff's family to visit him while the plaintiff was hospitalised. According to the plaintiff, the family visited him sometimes twice a week. The court found that it was reasonable for the members of the family to have made 10 trips and so awarded a sum of $200 under this item.”

I, therefore, award the sum of RM280.00 under this head of claim.

(ii) The Plaintiff’s Travelling Costs – outpatient treatments

Learned counsel for the Plaintiff submitted an amount of RM665.00 for the Plaintiff’s travelling costs for outpatient treatments.

Whereas, learned counsel for Defendant submitted that as the claim was not supported by evidence, a reasonable global sum of RM300.00 would be appropriate for the Plaintiff’s family’s travel expenses in visiting him during his hospitalisation, as well as for the Plaintiff’s own travel costs for outpatient treatments.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff expressly pleaded travelling expenses for such visits in paragraph 7(b) under “BUTIR-BUTIR GANTIRUGI KHAS PLAINTIF” of the statement of claim, forming part of the special damages.

The Plaintiff led evidence in court indicating that he sought outpatient treatment.

Outpatient treatment necessarily entails both travel and attendant cost.

I, therefore, award the sum of RM665.00 under this head of claim.

(iii) Claim for loss of clothing, wristwatch, cash, jewellery, laptop and mobile phone

Learned counsel for the Plaintiff submitted that the Plaintiff has withdrawn the claim under this head of claim.

In view of the Plaintiff’s express withdrawal, this head of claim stands formally withdrawn from further consideration.

(iv) Hospital Bills and Treatment Costs

Learned counsel for the Plaintiff submitted an amount RM70,788.50 under this head of claim.

Whereas, learned counsel for the Defendants submitted that the Plaintiff had failed to demonstrate that the treatment required could not have been obtained from a Government Hospital. Arguing further, he stated that a personal preference for private treatment does not serve as a basis for a full award of private hospital costs. Concluding his submission, he proposed an award of one-third of RM70,788.50, amounting to RM23,596.16.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff sustained serious injuries to the head, eye, face, mouth, and clavicle. In view of the gravity of those injuries, he received urgent medical attention under an emergency situation.

The Plaintiff was admitted to Pantai Hospital Klang, where he was advised to transfer to another facility due to the absence of the neurosurgeon and OMFS specialist. The Medical Report from Pantai Hospital Klang states: “Case was referred to Dr. Lam (surgeon on call) who advised for transfer out the patient to nearest available health facility as neurosurgeon as well as OMFS surgeon was on leave on 11th January 2023. Patient’s family opted to transfer out to SJMC, case was then referred to SR DNA Greta from SJMC where case was accepted by Dr. Sathesh (OMFS surgeon on call SJMC). Patient was then transferred out via ambulance accompanied by me to SJMC.”

The Medical Report from Pantai Hospital Klang demonstrates that the Plaintiff’s condition at the time was critical and required the immediate intervention of neurosurgical and OMFS specialists.

The Plaintiff led unchallenged evidence that the transfer to another hospital was necessitated by the unavailability of doctors at the respective hospital at the material time.

I recognise the force of the argument advanced for the Plaintiff that in such an emergency, any family concerned for the well-being of a loved one would naturally seek transfer to the best available medical facility without delay. In that moment, their instinct of care and urgency would prevail over any inquiry as to whether another government hospital might be ready to receive and treat the Plaintiff. Given the circumstances, I agree that the Plaintiff’s transfer to Subang Jaya Medical Centre was both reasonable and justified.

The law recognises that a plaintiff who possesses the means is entitled to seek the most competent medical care, for confidence in the attending specialists forms an integral part of the healing process (See: Fu Yik Teck lwn. Chai Sou Lan & Satu Lain [2016] CLJU 197).

The Plaintiff’s treatment and surgery at Subang Jaya Medical Centre amounted to RM 69,705.10, as evidenced by the Patient Bill at page 63 of Bundle of Documents B, agreed upon by the parties.

The Guarantee Letter Coverage Note from AIA Health Services Sdn Bhd, at pages 33 to 33B of Bundle of Documents B, confirms that AIA undertook to cover RM 69,415.10 of these costs, with the balance of RM 290.00 borne by the Plaintiff.

The outpatient treatment expenses of RM 1,083.40 were incurred, supported by bills and receipts at pages 64 to 82 of Bundle of Documents B.

The Federal Court, in Dr Kok Choong Seng & Anor v Soo Cheng Lin & Anor [2017] 10 CLJ 529, observed that a person’s contract with an insurer is a collateral and extraneous matter, and does not impinge on his claim against a tortfeasor for damages suffered as a direct consequence of the tort. It was observed: “[152] It remains to be addressed the suggestion that the plaintiff would be unjustly enriched if, having had the medical expenses paid for by the insurer, he is allowed to claim the same expenses from the surgeon. At the outset, we agree with the Court of Appeal that unjust enrichment cannot be used to diminish the operation of s. 28A(1)(a) which caters for specific circumstances such as the present case, for, equitable principles cannot operate to defeat clear statutory provisions (see the decision of this court in Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor [2016] 7 CLJ 823; [2016] 5 MLJ 1). [153] In any event, it is evident that the ingredients of unjust enrichment have not been made out by the plaintiff. The four requirements as expounded by this court in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453; [2015] 2 MLJ 441 to establish unjust enrichment are: "the plaintiff has been enriched, that this enrichment was gained at the defendant's expense, that the plaintiff's enrichment at the defendant's expense was unjust, and whether there are any special defences to the claim". On the present facts, the insurance cover for the medical expenses was not gained by at Dr Kok's expense, but at the expense of the plaintiff himself. The plaintiff's entitlement to the insurance benefit under his contractual bargain is not unjust; neither is it unjust for Dr Kok to be liable to pay damages for the medical expenses arising from the personal injury, caused as a direct and natural result of Dr Kok's negligence. [154] It is undisputed that the medical expenses in question were incurred for the treatment of personal injuries caused to the plaintiff by Dr Kok's negligence. In the circumstances, the tortfeasor is in no position to assert unjust enrichment in order to deprive the plaintiff of the benefit of his insurance arrangements and premium paid to cater for the event of a contingency, and appropriate such benefit for himself.” (Emphasis added) (See also: Muhd Sabri Syafiq Mohamed Romli lwn.

So far as concerns the costs for the treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885; [2016] MLJU 02. The Plaintiff, therefore, bore the duty to adduce compelling evidence demonstrating the reasonableness of the amount claimed. As noted above, the Plaintiff was in genuine need of the surgery and had indeed undergone the procedure. The sum of RM70,788.50 represents the actual costs spent. It is clear, therefore, that the claim is not conjured from imagination, but supported by credible and concrete evidence.

As for the Defendants’ contention that the Plaintiff failed to demonstrate that the treatment required could not have been obtained from a Government Hospital, I am not persuaded. Chong Kam Siong v. Herman Baharuddin [1995] 2 CLJ 413 makes clear: “[2] The yardstick to determine whether a claimant was entitled to medical expenses expended by him in a private hospital of his choice rather than seeking treatment from a government hospital where it is practically free, is not on whether the government hospital at that material time could or could not provide adequate care and attention to him. It is most unfair for this Court to determine which hospital is more efficient. In the Court's opinion any ordinary citizen of this country has a right to choose medical treatment for his injuries and illness from whoever and from wherever.” (Emphasis added)

The evidence establishes that the Plaintiff’s family acted on the advice of Dr. Lam, the surgeon on call at Pantai Hospital Klang, who recommended transfer to the nearest facility, as both a neurosurgeon and an OMFS surgeon were unavailable at the relevant time. Given the backdrop, I find that the private treatment at Subang Jaya Medical Centre was both reasonable and justified, and the availability of a Government Hospital does not in the circumstances detract from the reasonableness of the claim.

As for the one-third reduction, I find it to be unwarranted in the present circumstances. I acknowledge the force of the Defendants’ reliance on the case of Muhammad Yassein Zuliskandar regarding the twofold test of reasonableness applicable in determining whether a claimant is entitled to recover the full sum of private healthcare medical expenses. Be that as it may, I am unable to agree with the Defendants’ conclusion that the Plaintiff failed to meet the respective test. For the reasons stated above, I am satisfied that the Plaintiff has duly satisfied it. Indeed, the factual complexion of this case bears close resemblance to one of the instances contemplated in Muhammad Yassein Zuliskandar: “[14] There may also be a case where a plaintiff is seriously injured and his only concern is to seek quick and effective treatment which he or she thinks is available at the private hospital only. At that moment, the plaintiff is hardly in a position to undertake a cost-benefit analysis of any potential claim against possible tortfeasors. In those circumstances, it may be reasonable to allow such claims.” In my view, this passage captures precisely the Plaintiff’s position here, where immediate access to treatment, not financial calculation, governed the decision. The claim, therefore, stands as a reasonable and justifiable recourse, and I accordingly find no basis for any one-third reduction. I shall address this matter in full at a later segment of this judgment.

I am therefore satisfied that the Plaintiff has, on a balance of probabilities, established that he is entitled to claim the full cost of medical treatment at Subang Jaya Medical Centre. Accordingly, the total medical costs reasonably incurred at SJMC as a result of the accident amount to RM 70,788.50.

Medical Report, Specialist Report, Police Report, JPJ Reports, Adjuster Report, Chemist Report et cetera

Learned counsel for the Plaintiff submitted that the amount to be assessed under the costs.

Whereas, learned counsel for the Defendants submitted that based on the receipts contained in the Bundle of Documents, the total cost amounted to RM3,855.00.

I order the claim under this heading to be assessed under the costs.

(vi) Future surgeries

Removal of the plate and screw on the left clavicle

Learned counsel for the Plaintiff submitted that the Plaintiff has withdrawn the claim under this head, having already undergone the relevant surgery.

In view of the Plaintiff’s express withdrawal, this head of claim stands formally withdrawn from further consideration.

Physiotherapy

Learned counsel for the Plaintiff submitted an amount RM2,400.00 under this head of claim.

Whereas, learned counsel for the Defendants submitted that an amount of RM2,880.00, subject to a one-third reduction resulting in a sum of RM960.00, if the Court were minded to allow the claim under this head.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist expressly confirmed the Plaintiff’s need for physiotherapy treatment at a total cost of RM2,400.00. The Plaintiff’s Specialist Report states: “The pain on the left clavicle worst on exertion is due to the wasting of the left arm, forearm muscles, deformed clavicle and plate. He will require … physiotherapy to … improve muscle function respectively… The cost of each physiotherapy session is RM 200.00. He will require about twelve sessions.”

(ii) The Plaintiff led unchallenged evidence regarding his intention to undergo physiotherapy treatment based on the recommendation given by his Specialist. (See: Answers to Questions 34 and 37 of the Plaintiff’s Witness Statement)

(iii) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount RM2,400.00 for the costs of the physiotherapy treatment. To my mind, the amounts so posited are not without evidential support. Indeed, they derive from the figures stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Orthopaedic Specialist at Pantai Hospital. Stated differently, the sum was not conjured in vacuo but rests upon an authoritative foundation.

(iv) The Defendants’ Specialist recommended that the Plaintiff undergo physiotherapy treatment at a government hospital at the cost of RM5.00 or at a private facility at RM80.00. Be that as it may, the Defendants’ Specialist had not served at the government hospital to substantiate the figure advanced, did not identify the private facility in question, nor provided any reference to the cost of treatment at her own institution, Columbia Asia Petaling. The estimate is therefore speculative and lacks any convincing foundation.

Even if the Defendants’ Specialist’s speculative figure is taken at its highest, it does not, in my considered view, dislodge the reasonableness of the figure advanced by the Plaintiff’s Specialist. From my standpoint, the mere fact that the quantum estimated by the Plaintiff’s Specialist surpasses that estimated by the Defendants’ is, in the circumstances, insufficient to render it unreasonable.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for physiotherapy treatment as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for physiotherapy treatment and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount RM2,400.00 for the physiotherapy.

Analgesia

Learned counsel for the Plaintiff submitted an amount RM840.00 under this head of claim.

Whereas, learned counsel for the Defendants submitted that the claim under this heading should be dismissed, as the Defendants’ Specialist stated that the Plaintiff only complained occasionally of pain in the left shoulder when performing heavy work. Arguing further, learned counsel contended that since the Plaintiff had not been taking the prescribed analgesics for the past four months, there was no necessity for the said claim.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist Report states: “The pain on the left clavicle worst on exertion is due to the wasting of the left arm, forearm muscles, deformed clavicle and plate. He will require regular analgesia … to alleviate the pain …. The cost of analgesia is RM 140.00 a week he will require to take the analgesia for six weeks.

(ii) The Plaintiff’s Specialist’s Report explains the purpose of the analgesia, noting that it “helps him to recover from the pain after physiotherapy.” To my mind, that justifies the clinical justification for analgesia.

(iii) The Plaintiff led unchallenged evidence regarding his intention to take the analgesia regularly, based on the recommendation given by his Specialist. (See: Answers to Questions 34 and 37 of the Plaintiff’s Witness Statement)

(iv) Applying the principle established in Jitweer Singh, I test the conflicting Specialists’ Reports concerning the Plaintiff’s need for analgesia against the totality of reliable evidence and the overall circumstances. Having done so, I find the Plaintiff’s Specialist’s Report to be more consistent with the evidential matrix and therefore the more trustworthy and reliable.

The Defendants’ Specialist noted that the Plaintiff was not using any analgesia, despite reporting discomfort in the left shoulder, and concluded that there was no clinical indication for analgesics. During testimony in Court, however, the Plaintiff explained that he was experiencing genuine pain in the left shoulder, which cannot be characterised as mere discomfort as suggested by the Defendants’ Specialist. That, in my view, establishes a reasonable ground entitling the Plaintiff to appropriate treatment.

(vi) While the Defendants’ Specialist noted that the Plaintiff reported only occasional pain in the left shoulder during heavy work, I do not consider such intermittent discomfort sufficient to negate the need for analgesia. Pain, even if episodic, may still cause functional limitation and justify medical management. In my judgment, the Plaintiff’s complaints, coupled with the specialist assessment, support the continued need for appropriate analgesic treatment.

(vii) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount RM840.00 for analgesia. To my mind, the amount so posited is not without evidential support. Indeed, they derive from the figure stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Consultant Orthopaedic and Trauma Surgeon at Pantai Hospital. Simply put, the sum is neither hypothetical nor unfounded but is firmly anchored in credible basis.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for analgesia as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for analgesia and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount RM840.00 for the analgesia.

Bone grafting and dental implant surgeries

Learned counsel for the Plaintiff submitted an amount RM65,900.00 under the head of claim.

Whereas, learned counsel for the Defendants submitted that the appropriate amount is RM39,900.00, subject to a one-third reduction, resulting in a sum of RM13,300.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist Report states: “Recommendation: Upper arch: Bone grafting + 4 dental implants (#12 and #22 with bridge, #13 and #15 with 3-unit bridge) Lower arch: Bone grafting + 2 dental implants (#32 and #42) followed unit bridge + vestibuloplasty Maintenance phase annually (check-up, x-ray and scaling) for 3 years. … Estimated cost: Bone grafting for upper and lower arch: RM 5,000 Lower arch vestibuloplasty: RM 1,500 Upper arch rehabilitation: - RM 7,500 for single implant × 4 units = RM 30,000 - 7-unit bridge in two sections (approx. RM 1,200 per unit): RM 8,400 Lower arch rehabilitation: - RM 7,500 for single implant × 2 units = RM 15,000 - 4-unit bridge (approx. RM 1,200 per unit): RM 4,800 Maintenance: RM 400 per visit × 3 years = RM 1,200 Total = RM 65,900”

(ii) The Plaintiff led unchallenged evidence regarding his intention to undergo the respective surgery, based on the recommendation given by his Specialist. (See: Answers to Questions 36 and 37 of the Plaintiff’s Witness Statement)

(iii) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount RM69,500.00 for bone grafting and dental implant surgeries. To my mind, the amount so posited is not without evidential support. Indeed, they derive from the figure stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Oral and Maxillofacial Surgery Specialist at Universiti Malaya Specialist Centre. In other words, the amount is not arbitrary but supported by a clear and verifiable foundation.

(iv) The Defendants’ Specialist recommended that the Plaintiff undergo the respective treatment at a government hospital or at a private facility offering lower costs than those estimated by the Plaintiff’s Specialist. However, the Defendants’ Specialist had not served at the government hospital to substantiate his assertion, did not identify the private facility in question, nor provided any reference to the cost of treatment at his own institution, Klinik Pergigian Katte. The estimate is therefore speculative and lacks any convincing foundation.

The Defendants’ Specialist’s suggestion of lower costs at either institution, even if taken at their highest, does not, in my considered view, undermine the reasonableness of the figure advanced by the Plaintiff’s Specialist. From my standpoint, the mere fact that the quantum estimated by the Plaintiff’s Specialist exceeds that proposed by the Defendants is, in the circumstances, insufficient to render it unreasonable.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for the bone grafting and dental implant surgeries as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for respective treatment and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount RM65,900.00 for the bone grafting and dental implant surgeries.

Oral Physiotherapy

Learned counsel for the Plaintiff submitted an amount RM2,900.00 under this head of claim.

Whereas, learned counsel for the Defendants submitted that the claim under this head should be dismissed, as the Defendants’ Specialist stated that the Plaintiff did not experience any pain or limitation in mouth opening, and therefore the proposed treatment was unnecessary.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist Report states: “Recommendation: Non-surgical intervention via oral physiotherapy regime by oral maxillofacial specialist which include jaw exercise, oral appliance, soft diet and heat therapy. Estimated cost: RM 300 specialist physiotherapy per session per month for 6 months = RM 1,800 Oral appliance = RM 500 RM 200 review per session for subsequent 3 months = RM 600 Total = RM 2,900”

(ii) The Plaintiff led unchallenged evidence regarding his intention to undergo oral physiotherapy treatment based on the recommendation given by his Specialist. (See: Answers to Questions 36 and 37 of the Plaintiff’s Witness Statement)

(iii) Applying the principle established in Jitweer Singh, I test the conflicting Specialists’ Reports concerning the Plaintiff’s need for oral physiotherapy against the totality of reliable evidence and the overall circumstances. Having done so, I find the Plaintiff’s Specialist’s Report to be more consistent with the evidential matrix and therefore the more trustworthy and reliable.

(iv) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount RM2,900.00 for oral physiotherapy treatment. To my mind, the amount so posited is not without evidential support. Indeed, it derive from the figure stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Senior Consultant Oral and Maxillofacial Surgeon at University of Malaya Specialist Centre. In other words, the figure did not emerge in abstraction but finds its basis in established authority.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for the oral physiotherapy treatment as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for respective treatment and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount RM2,900.00 for the oral physiotherapy treatment.

Facial Scar Treatment

Learned counsel for the Plaintiff submitted an amount RM4,000.00 under the head of claim.

Whereas, learned counsel for the Defendant made no submission on this head of claim. However, the Defendants’ Specialists indicated an estimated cost of RM3,000.00 at a private clinic and RM1,000.00 at a government hospital.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist Report states: “Recommendation: - Intervention such as laser therapy, cryosurgery or surgical revision can be considered followed by post-procedural care. - Estimated costs: RM3,000.00 to RM4,000.00 …”

(ii) The Plaintiff led unchallenged evidence regarding his intention to undergo facial scar treatment based on the recommendation given by his Specialist. (See: Answers to Questions 36 and 37 of the Plaintiff’s Witness Statement)

(iii) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount RM4,000.00 for facial scar treatment. To my mind, the amount so posited is not without evidential support. Indeed, it derive from the figure stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Senior Consultant Oral and Maxillofacial Surgeon at University of Malaya Specialist Centre. Simply put, the sum was not arbitrarily conceived but rests upon a credible basis.

(iv) The Defendants’ Specialist neither provided service at a government hospital to substantiate the figure he advanced, nor identified the private facility in question, nor referenced the costs of treatment at the institution where he practised, Klinik Pergigian Katte. The estimate thus appears speculative and lacking in any convincing foundation.

Even if the Defendants’ Specialist’s speculative figure is taken at its highest, it does not, in my considered view, dislodge the reasonableness of the figure advanced by the Plaintiff’s Specialist. From my standpoint, the mere fact that the quantum estimated by the Plaintiff’s Specialist surpasses that estimated by the Defendants is, in the circumstances, insufficient to render it unreasonable.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for the facial scar treatment as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for respective treatment and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount RM4,000.00 for the facial scar treatment. One-third reduction

As regards the one-third reduction argument advanced for the Defendants concerning the Plaintiff’s claims for future physiotherapy, bone grafting and dental implant surgeries, as well as the hospital bills and treatment costs already incurred, I note the following observations:

I acknowledge the reliance placed by learned counsel for the Defendants on Hong Teng Yong v. Khaw Kim Seng & Anor [2011] 3 CLJ 401 and Shatis Nair Ravindran Nair lwn. Nesaselvam Muthusamy [2024] CLJU 893 which in turn cited with approval the Court of Appeal decision in Chai Yee Chong v. Lew Thai [2004] 2 CLJ 321; [2004] 2 MLJ 465 in support of the argument for a one-third reduction. I am alive to these authorities and the principles they endorse. In the same vein, I would draw attention to a clarificatory authority, discussed below, which squarely addressed this very proposition and clarified the approach to the one-third reduction.

(ii) The governing principle is, and remains, that claims for private healthcare expenses must be determined by reference to the standard of reasonableness, not confined by any mechanical or arithmetical rule of one-third reduction. In that regard, I find persuasive the lucid reasoning of Harminder Singh Dhaliwal JCA (later FCJ) in the Court of Appeal case of Muhammad Yassein Zuliskandar, where His Lordship, having cited the Federal Court case of Inas Faiqah clarified that Chai Yee Chong laid down no fixed one-third rule but reaffirmed reasonableness as the governing test in assessing such claims: "[9] This issue concerns the application of the so-called "one-third rule" whereby medical costs and expenses incurred in a private hospital claimed by plaintiff would not be allowed in full if it can be shown that such treatment was available at government hospitals. In this context, it was submitted by the plaintiff that the learned DR has misunderstood the decisions of this court in Chai Yee Chong v. Lew Thai [2004] 2 CLJ 321; [2004] 2 MLJ 465 ("Chai Yee Chong") and Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin & Ors And Another Appeal [2013] 8 CLJ 449; [2013] 4 MLJ 785 ("Gleneagles Hospital") to mean that a claimant can recover only one-third of the cost of private healthcare medical expenses. [10] In this regard, we agree that in Chai Yee Chong, no such "one-third principle" was set out. Indeed, as was pointed out in the case itself, no such principle is provided under any written law. It has only become a matter of practice through the adoption of case precedents. Instead, it was decided that the test of reasonableness should be applied in deciding whether the claimant is entitled to recover the full sum of the private healthcare medical expenses. [12] In other words, the test of reasonableness applies in two ways. First, the plaintiff must justify why he chooses treatment at a private hospital over a public hospital. Secondly, the plaintiff must show that the cost of treatment at a private hospital was reasonable. In determining whether it is, or was, reasonable or justifiable in resorting to treatment at a private hospital, there can be no fixed or inflexible rules simply because of the myriad of reasons or circumstances why treatment is sought or intended to be sought at a private hospital. … [15] In the end, there can be no fixed rule. It really depends on the peculiar circumstances of each case. With the Inas Faiqah decision, a claim instituted now for medical expenses cannot be denied purely on the ground that the particular treatment was available at a government hospital. A holistic consideration of the question of reasonableness is imperative before any decision can be made on whether such claims for private medical expenses can be allowed…” (see also: Rohgetana Mayathevan v. Dr Navin Kumar & Ors And Other Appeals [2017] 3 CLJ 311; [2017] 4 MLJ 102).

(iii) As alluded to earlier in this judgment, I have found that the Plaintiff has justified his choice of treatments at a private hospital and has demonstrated that the cost of such private hospital treatment is reasonable. Having considered the authorities relied upon by the Defendants and the legal position clarified in Muhammad Yassein Zuliskandar, I find that the one-third reduction is not applicable given the factual matrix of the present case.

(iv) It is apparent to me that the Plaintiff’s recourse to private medical facilities was necessitated by the urgency and specialised nature of the care required. A mechanical or arithmetical application of a one-third reduction does not fully reflect the practical realities of timely access to treatment, the availability of qualified specialists, and the need for continuity of care. These considerations are integral to any assessment of reasonableness in claims for medical expenditure and cannot be disregarded merely because alternative public options exist.

On the cumulative whole, I find that the Plaintiff has satisfied the twofold test of reasonableness and is entitled to the full amount for the respective claims without any reduction.

(vii) Motorcycle Repair Costs

Learned counsel for the Plaintiff submitted that the Plaintiff has withdrawn the claim under this head of claim.

In view of the Plaintiff’s express withdrawal, this head of claim stands formally withdrawn from further consideration.

(viii) Claim for loss of use of the motorcycle

Learned counsel for the Plaintiff submitted that the Plaintiff has withdrawn the claim under this head of claim.

In view of the Plaintiff’s express withdrawal, this head of claim stands formally withdrawn from further consideration.

(ix) Loss of Earnings

Learned counsel for the Plaintiff submitted that an amount of RM88,000.00 under this head of claim. He submitted that the Plaintiff’s loss of earnings should be assessed at RM4,000.00 per month for twenty-two months, yielding a total of RM88,000.00.

Whereas, learned counsel for the Defendant submitted that the appropriate amount is RM18,839.20 (being RM3,523.35 with a one-third reduction for personal expenses × 8 months).

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows: Hehehe.

From the conspectus of evidence led at the trial, the following material facts become evident:

At the time of the accident, the Plaintiff was employed as a plumber with New Victory Zink Works since 1.2.2022.

(ii) The Plaintiff earned a monthly income of RM4,000.00 as of September 2022 (See: Employment Confirmation Letter dated 25.8.2022 - Exhibit P5 at page 1 of Bundle F)

(iii) The Plaintiff contributed to the Employees Provident Fund (EPF) and the Social Security Organisation (SOCSO) during his employment. (See: Employment Confirmation Letter dated 25.8.2022 - Exhibit P5 at page 1 of Bundle F and Salary Slips - Exhibits P6A to P6F at pages 2–7 of Bundle F)

(iv) PW2, the representative of the Plaintiff’s former employer, testified that the Plaintiff’s duties involved installing and repairing pipes. The work was physically demanding. Following the accident and during his medical leave, the Plaintiff was unable to perform such work.

The Plaintiff was on medical leave from 11.1.2023 to 17.5.2023. (See: Medical Certificates at pages 27–31 of

(vi) The Light-Duty Certificate shows that the Plaintiff was advised to perform only light duties for six months, until 2.11.2023. (See: Light-Duty Certificate at page 32 of Bundle B.)

(vii) The Plaintiff was unable to resume his work as a plumber and earned no income during this period.

(viii) The Plaintiff’s employment was terminated with effect from 31.1.2023. The 2023 Member Statement (Exhibit P9(B)) shows that the last contribution was made for February 2023. (See: 2023 Annual Member Statement at page 9 of Bundle F.)

(ix) The Plaintiff lost income from March 2023 to December 2024, a period of twenty-two months, until he secured new employment as a car spray painter.

It is therefore my findings that:

The Plaintiff was unable to perform his duties as a plumber for a continuous period following the accident, resulting in a total loss of earnings.

(ii) The loss of earnings arose directly from the Plaintiff’s physical inability to work caused by the accident, and not from any intervening factor or omission on his part.

(iii) The duration of the Plaintiff’s inability to work is supported by contemporaneous medical records and corroborated by PW2 i.e. the employer’s testimony, both of which I find credible and consistent.

(iv) The evidence, taken as a whole, establishes a cogent link between the Plaintiff’s medical condition and his inability to work due to the injury during the relevant period.

Addressing the submission advanced by the Defendants in paragraphs 104 to 110 of their Written Submission that the Plaintiff’s loss should be confined to the duration of his medical leave is, in my respectful view, untenable. The reasons are these:

It is apparent from the Plaintiff’s testimony that he was unable to secure new employment until January 2025, despite genuine efforts on his part. Such inability was attributable to his physical condition resulting from the injuries sustained in the accident. It therefore follows that the Plaintiff’s actual loss of income spans from March 2023 until December 2024, covering a period of twenty-two months.

(ii) I find no evidence that the Plaintiff’s physical condition, which led to his inability to resume work at the material time, was due to any cause independent of the accident.

(iii) While the Plaintiff has since managed to obtain work as a spray painter, that does not in any way affect or diminish the period of twenty-two months during which he had no earnings. The amount of RM4,000 per month, as advanced by the Plaintiff, was not arrived at without evidential foundation and is firmly supported by the evidence adduced.

(iv) As for the reliance placed by learned counsel for the Defendants on the Sepang Sessions Court case of Ibrahim Muhamad & Anor v. Nor Asma Ab Razak & Ors [2024] 2 SMC 12, I find it misplaced. In that case, Azrol Abdullah SJ drawing from Marappan Nallan Koundar & Anor v. Siti Rahmah Ibrahim [1990] 1 CLJ 32; [1990] 1 CLJ (Rep) 174; [1990] 1 MLJ 99 and Rohani Tengkak v. Zainal Lani & Anor [2004] 2 CLJ 108, adopted what was described as a modern approach, allowing a one-third deduction from the deceased’s monthly income. The present case, however, stands on a distinct footing, for it concerns a claim for loss of earnings, not a dependency claim. The rationale underlying the one-third deduction in that context bears no relevance here.

It further appears to me that the preceding submission has conflated distinct heads of loss, namely loss of earnings during period of incapacity, future loss future earnings, and future loss of earning capacity. The distinction was lucidly explained by Mohamed Azmi J in Sam Wun Hoong v. Kader Ibramshah [1981] 1 MLJ 295; [1981] CLJU 103; [1981] 1 LNS 103, where His Lordship, delivering the judgment of the Federal Court, observed: "In an action for personal injuries, there are two classes for damages which have to be considered special damage which has to be specially pleaded and general damage which need not be specially pleaded. In both classes of damages, the burden of proof based on the balance of probabilities in the evidence, lies on the plaintiff. 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 earning capacity... As regards loss of future earning and future loss of earning capacity, although such loss can be implied in appropriate cases, the award should be a nominal one, unless the plaintiff can prove such future loss is in fact sufficiently severe to warrant a substantial award. Further, such implied loss can be rebutted by the evidence, and if the evidence does in fact disclose or sufficiently disclose no future loss of earning or loss of earning capacity, no award need be given under these headings.” (Emphasis added)

Considering the preceding argument, the prevailing evidence, judicial precedent, the facts and circumstantial peculiarities of the case in its entirety, I award the sum of RM4,000.00 for loss of earnings per month, totalling RM88,000.00 for twenty-two months.

Costs of Care

Learned counsel for the Plaintiff submitted that an amount of RM5,000.00 under this head of claim.

Whereas learned counsel for the Defendants submitted that the claim under this head should be dismissed as the Plaintiff had failed to prove it.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff expressly pleaded costs of care in his statement of claim under “BUTIR-BUTIR GANTIRUGI KHAS PLAINTIF” (See: Paragraph 8 of the Plaintiff’s Statement of Claim).

(ii) The Plaintiff was granted medical leave from 11.1.2023 to 17.5.2023, a period of approximately five months, further highlighting the serious and prolonged nature of his recovery.

(iii) The Plaintiff disagreed with the suggestion put to him by learned counsel for the Defendants during cross-examination that he was capable of taking care of himself at the material time and was therefore not in need of any costs of care.

(iv) It is well settled that the costs of care and nursing are fully justifiable and should not be reduced simply because the Plaintiff was attended to at home rather than in an institution. The law recognises that compensation may be awarded in monetary terms (See: Marappan Nallan Koundar & Anor v. Siti Rahmah Ibrahim [1990] 1 CLJ Rep 174; and Mohamad Zulkefli Hamzah & Satu Lagi lwn. Fatimah Sham [2016] CLJU 1226)

I, therefore, award RM5,000.00 under this head of injury.

In summation, the findings I draw crystallise into the following:

I allow the Plaintiff’s claim with costs.

(ii) I award the above damages, on a 100% liability basis, together with interests and costs.

(iii) For the interest, I order as follows:

interest at the rate of 5% per annum for the general damages from the date of the service of the writ of summons until the date of the decision;

interest at 2.5% per annum for the special damages from the date of the accident to the date of decision (no interest for future treatments); and

interest at the rate of 5% per annum for all damages from the date of the decision until the date of the full and final settlement.

(iv) And for the costs, I order the costs according to the scale as set out in the Rules of Court 2012. Signed (NOORHISHAM MOHD JAAFAR) Judge Sessions Court Klang, Selangor Dated: 7 November 2025 PARTIES Counsel for the Plaintiff : JEGANARTH SAMIKANU Solicitors for the Plaintiff Tetuan P S Sohanpal & Sidhu Peguambela dan Peguamcara No 15A, Tingkat 1 Jalan Seri Sarawak 20B Taman Sri Andalas 41200 Klang Selangor Counsel for the Defendants : ARRWIN GANESH SAYGARAN Solicitors for the Defendants : Tetuan Francis Pereira & Shan Unit 8A Wisma TCT, 516 / 1 3rd Mile, Jalan Ipoh, 51200, Kuala Lumpur