LIM Cheng Ling v Uda Holdings Berhad (WA-23NCvC-81-10/2022)

UDA HOLDINGS BERHAD [NO. PENDAFTARAN: 199501018305 (347508-T)]

PERBADANAN PENGURUSAN KOMPLEKS PERTAMA …DEFENDAN-DEFENDAN DAN BAKAT GEMILANG SDN BHD (No Syarikat: 299732-P) …PIHAK KETIGA Grounds of Judgment [1] The Plaintiff hails from Kota Kinabalu. A visit to his tailor at the Pertama Complex in Kuala Lumpur proved to be a painful experience for the Plaintiff. As a result of the accident on 3rd November 2019, he was hospitalised for 16 days, underwent surgery to save his right leg, and suffers permanent disabilities. [2] The accident occurred when the Plaintiff stepped onto an escalator in the commercial building known as Pertama Complex. To his horror, the surface of the moving escalator collapsed under his feet, causing his right leg to fall into the gap, i.e. the space beneath it. Thankfully for the Plaintiff, he had his pistol in his trouser pocket, 22/07/2026 15:18:08 WA-23NCvC-81-10/2022 Kand. 168 and it blocked the metal part of the moving escalator from severing his leg arteries. Had he not had his pistol in his pocket, the sharp metal edge of the metal part would have caused even more extensive injuries, and possibly death from bleeding from severed arteries. This was obvious from the fact that the 2nd Defendant’s employees failed to rescue him immediately and had left him trapped in that position for about 45 minutes. [3] The Plaintiff had originally named UDA Holdings Bhd as the 1st Defendant and Perbadanan Pengurusan Kompleks Pertama, i.e. the management corporation of the building, as the 2nd Defendant. A few weeks after the writ was issued, the Plaintiff discontinued his claim against the 1st Defendant, leaving the 2nd Defendant as the sole defendant. [4] The 2nd Defendant commenced Third Party proceedings, naming Bakat Gemilang Sdn Bhd as the Third Party in this civil suit because it transpired from the evidence adduced by the 2nd Defendant that the Third Party was the contractor in charge of the maintenance of the escalators in the building. The Third Party failed to enter appearance and took no action to resist the 2nd Defendant’s claim for indemnity. This means that the 2nd Defendant is entitled to seek indemnity payment from the Third Party, which would be after paying the Plaintiff the judgment sum, interest and costs ordered by this Court. [5] A total of 7 witnesses, including the Plaintiff himself, testified for the Plaintiff. A total of 52 exhibits were admitted in evidence for the Plaintiff’s case, marked as exhibits “P1” to “P52” respectively. Based on the law on occupier’s liability and the facts of this case, this Court was constrained to find the 2nd Defendant 100% liable for the pain and suffering caused by the personal injuries suffered by the Plaintiff, which had resulted in permanent disabilities. Background Facts [6] As narrated above, the Plaintiff hails from Kota Kinabalu. He is a director of a company that had construction projects in Peninsula Malaysia. He is also a director of other companies that do various businesses. [7] On the morning of 3rd November 2019, the Plaintiff made a trip to his tailor at Pertama Complex in Kuala Lumpur – which unfortunately turned out to be a most painful event for him with lifelong consequences. [8] The Plaintiff’s evidence was that after visiting his tailor in the building, he stepped onto an escalator to descend to the floor below and was utterly shocked when the surface of the moving escalator collapsed under his feet, causing his right leg to fall into the gap, i.e. the space beneath it. As he had his pistol in his trouser pocket at the time, it blocked the metal part of the moving escalator from severing his arteries in his groin area. [9] The photographs published in the media, which were adduced as evidence during the trial, show the Plaintiff with his right leg fully trapped inside the gap, up to his groin. Unfortunately for the Plaintiff, the security guards in the said building did not know how to extricate and rescue him, and knew only to call the Police, Fire & Rescue Department, Civil Defence Force and for an ambulance. [10] After being trapped for about 45 minutes, he was finally rescued and sent to Hospital Kuala Lumpur in an ambulance, where he received treatment and surgery. He was discharged after 16 days, on 19th November 2019, requiring further treatment and, unfortunately for him, ended up with lifelong disabilities that affected and are still affecting his life and that of his wife. Analysis of the Law on Liability [11] Our law in Malaysia on occupiers’ liability was derived from the common law in England. However, whilst the British had deemed it necessary to enact an Act of Parliament, i.e. the Occupiers' Liability Act 1957, to restate and amend the common law on the extent of an occupier's ordinary duty of care, Malaysia did not follow suit with a similar statute. Thus, in Malaysia, we still apply the law on occupiers’ liability as expounded by our superior courts, which drew wisdom from the common law. [12] For analysis purpose, it is noted that s.2 of the Occupiers' Liability Act 1957 in the United Kingdom states that an occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. The “common duty of care” is expressly defined in the said Act as a duty to take such care, as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. [13] Interestingly and noteworthy, as the issue of duty of care owed to persons other than visitors (referring generally to trespassers) often arose and had caused confusion, the Parliament in the United Kingdom passed the Occupiers' Liability Act 1984, which expressly states that it is to determine, in place of the rules of the common law, “(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

if so, what that duty is.” [14] Reverting to the law on occupiers’ liability in Malaysia, I find that the facts of this case bear close resemblance to those facts of Datuk Bandar Dewan Bandaraya Kuala Lumpur v. Ong Kok Peng [1993] 3 CLJ 205, a judgment of the Supreme Court (equivalent to our current Federal Court). [15] In Datuk Bandar DBKL v. Ong Kok Peng (supra), the plaintiff had saw a lift door open partly for about one foot wide on the 5th floor of a building belonging to DBKL. In the words of Peh Swee Chin SCJ (as he then was): “There were lights at the staircase but none at that lift about 12 feet away from the staircase and it was bright enough to see the lift door. He opened the lift door and stepped in and fell straight down the shaft, there was no lift inside the door. There was no warning sign of any sort or any guard or barricade put up then at the lift door about the lift being out of order.” In our present case, there was also no warning sign of any sort or any guard or barricade put up at the top of the escalator about the escalator being out of order. Just as the plaintiff in Datuk Bandar DBKL v. Ong Kok Peng (supra), the Plaintiff in our present case was seriously injured. [16] In the United Kingdom, an occupier of premises owes the same duty of care to all his visitors. This is stated in the United Kingdom Occupiers' Liability Act 1957. However, in Malaysia, the duty of care varies for different groups of visitors because our Supreme Court in Datuk Bandar DBKL v. Ong Kok Peng (supra) applied the common law applicable prior to the United Kingdom Occupiers' Liability Act 1957. Since there is no subsequent Federal Court judgment that held otherwise, this Court is bound by the doctrine of stare decisis to follow Datuk Bandar DBKL v. Ong Kok Peng (supra). [17] I therefore find that the Plaintiff was a licensee of the 2nd Defendant in the said commercial building at the material time when he was using the faulty escalator and that the 2nd Defendant owed the Plaintiff a duty not to expose him to hidden perils, and to warn him of existing traps or concealed danger. The relevant passages in Datuk Bandar DBKL v. Ong Kok Peng (supra) that explain the duty of care owed to a licensee are as follows: “Speaking of plaintiffs entering premises, the liability of occupiers of such premises to take care exists but it depends on the character in which they have entered them. First, we have people who enter them by virtue of a contract, such as a guest in a hotel, secondly we have people who enter them on business of interest, both to such persons as well as the occupiers, e.g. a customer going into a shop to view the goods, they are the invitees; … In the order we have mentioned such persons, the duty of care is cast in a descending scale, the highest duty of care being towards persons who enter the premises by virtue of a contract down and not so high in the case of invitees and so on. Such duty of care has been spelt out at common law in each case. The plaintiff entered the lift not at all on business of common interest to the Datuk Bandar, viz. the defendant and to himself, but definitely with implied permission from the defendant. It must be borne in mind that he was injured at the lift or rather in the shaft of the lift, the lift being under the occupation or possession legally of the defendant, maintained or controlled by the defendant for the benefit of the tenants of the flats there, who when using the lifts, were invitees of the defendant, the plaintiff was a licensee of the defendant, at the lift and its immediate vicinity. Thus, a lodger staying with a tenant was held to be an invitee of the tenant but a licensee of the landlord in Fairman v. Perpetual Building Society [1923] AC 74.” What then is the standard of such duty of care owed to a licensee? A licensee must take the premises as he finds them, and the duty owed is not to expose him to hidden perils, and to warn him of existing traps or concealed danger, Fairman supra. A trap, as stated by Hamilton, LJ in Latham v. Johnson [1913] 1 KB 399 is something which sometimes involves "the appearance of safety under circumstances cloaking a reality of danger". [18] In our present case, the 2nd Defendant attempted to disclaim liability by shifting the blame to the contractor responsible for the maintenance of the escalators, i.e. the Third Party in this case. The facts of Datuk Bandar DBKL v. Ong Kok Peng (supra) disclosed that a similar issue. The Supreme Court held that the defendant there had a non-delegable duty to ensure that the duty of care was exercised, whether by his contractor or not, and that otherwise, he would be equally liable as the contractor. For clarity, I am quoting the following passages therefrom: “While the rule that an employer of an independent contractor is not liable for the default or negligence of such contractor no doubt exists, there are exceptions, and it is outside the province of this judgment to elaborate all the exceptions but only briefly to deal with them except those which are directly concerned with the instant case. First exception is where an employer has not exercised care in selecting a competent contractor as was much pressed in argument in the present case. Second exception is a group of cases or situations when the duty to take care is said to be "non-delegable". A non-delegable duty to take care means, in effect, that the employer would have to see to it that such duty of care is exercised, whether by his contractor or not; otherwise, he would be equally liable as the contractor, in addition, in most cases, to the liability of his contractor. Such non-delegable duty exists in the case of work causing withdrawal of support to neighbour's land, see Bower v. Peat [1876] 1 QBD 321; work done on a highway, see Tarry v. Ashton [1876] 1 QBD 314; cases of a master's duties for his servant's safety at common law, see Wilsons & Clyde Coal Co. v. English [1930] AC 57; cases of strict liability and finally cases of statutory duty imposed on certain categories of persons. The last two mentioned exceptions require elaboration as they have considerable relevance to our instant case. The exception in regard to cases of strict liability above mentioned refers to cases of such strict liability at common law, such as the rule in Rylands v. Fletcher. The exception covers, inter alia, all cases involving extra hazardous acts or omissions, or situations created by them, which all involve special danger to others, please see the reference to them e.g. in Salsbury v. Woodland [1970] 1 QB 324, such as damage by fire, see Honeywill Stein Ltd. v. Larkin Brothers Ltd. [1934] 1 KB 191 so that an employer of an independent contractor, to repeat, cannot escape liability by delegating the work to such independent contractor.” (emphasis added) [19] It was expressly held by the Supreme Court in Datuk Bandar DBKL v. Ong Kok Peng (supra) that for the defendant there to have allowed the creation of such an extra hazardous omission involving special danger to users of that lift, the defendant must not be allowed to escape liability by entrusting the duty to a third party. The exact words of the Supreme Court are as follows: “In our view, the situation described earlier as facing the plaintiff was a situation created by such an extra hazardous act or omission involving special danger to such users of that lift. The defendant could not escape such liability entrusted to or by entrusting to the third party. That is why we confirmed the judgment of the High Court against the defendant in favour of the plaintiff for this reason alone.” [20] Analogously, I find that in our present case, the 2nd Defendant had allowed the creation of “such an extra hazardous omission involving special danger to users” of that escalator. [21] The Supreme Court in Datuk Bandar DBKL v. Ong Kok Peng (supra) had indeed dealt comprehensively with all issues that were raised as it was also held that, in any event, the defendant there could not escape liability due to a statutory duty. It was held: “The defendant would also be liable in any event, for a different reason, that the last-mentioned exception about statutory duty applied to this case. The maintenance of lift was also a statutory duty imposed on defendant by the Factory and Machinery Act

The defendant cannot also for the reason escape liability by delegating it to the third party, his independent contractor. Please see, e.g. ss. 14, 15 and 21 of this Act. The breach of duty of not exposing the plaintiff to and of failure to warn the plaintiff of the concealed danger or trap in the instant case was specifically the failure by the third party and also by the defendant for seeing to it that there was no such failure, to give any warning signs in respect of the defective lift.” [22] On this point of law regarding the statutory duty, there is no doubt that escalators in shopping malls were within the purview of the Factories and Machinery Act 1967 when the unfortunate incident severely injured the Plaintiff on 3rd November 2019. S.21 of the said Act imposes a statutory duty on the occupier, i.e. the 2nd Defendant, to maintain the escalator. The very wide definition of “machinery” in the said Act leaves no room for doubt that elevators (lifts) and escalators are machinery that require certification and maintenance by the occupier. Ss.14 and 21 read as follows: “All machinery and every part thereof including all fittings and attachments shall be of sound construction and sound material free from defect and suitable for the purpose and shall be properly maintained.” “The occupier shall at all times maintain all safety appliances and machinery.” [23] For the avoidance of doubt, it is apt for me to conclude on this point by pointing out that even though the Occupational Safety and Health Act 1994 was enacted years earlier, the Factories and Machinery Act 1967 had remained in force until it was repealed by the Factories and Machinery (Repeal) Act 2022, i.e. after another amending Act amended the Occupational Safety and Health Act 1994 comprehensively to cover all the areas previously dealt with by the Factories and Machinery Act 1967. [24] It was undisputed that the Plaintiff was a customer of one of the shops within the building – which is a commercial building that houses numerous shops – and he was on his way down to a lower floor after patronising his tailor’s shop. He was a licensee of the 2nd Defendant. I find that the 2nd Defendant had a non-delegable common law duty as well as a statutory duty to maintain the escalators. An escalator that was not fit for use ought to have been turned off and with barriers blocking access to it – instead of being turned on and left moving as if it was safe and fit for use by visitors to the said building. [25] In conclusion on the issue of an occupier’s liability, it is quite plain from the law and the undisputed facts of this case that the 2nd Defendant, i.e. the management corporation of the building, must be held wholly liable. The Plaintiff’s Injuries and Medical Treatment [26] As narrated above, the Plaintiff suffered serious injuries on 3rd November 2019. Dr. Khairul Adli bin Salim (PW2), who was from Hospital Kuala Lumpur, testified about the Plaintiff’s injuries. As learned counsel for the 2nd Defendant declined to cross-examine him, he was released soon after examination-in-chief was completed. Since there was no evidence in rebuttal, this Court must therefore assume that the evidence of this medical doctor – which was unchallenged – was true and accurate. [27] According to Dr. Khairul (PW2) who prepared a medical report (adduced as evidence), the Plaintiff was admitted into Hospital Kuala Lumpur for 16 days from 3rd November 2019, where he received treatment and surgery. He was discharged on 19th November 2019. The general injuries suffered by the Plaintiff were described as follows:

Laceration wound at right inguinal size 3cm x 1cm;

Puncture Wound over right gluteal (buttock) size 1cm x 1cm;

Laceration wound over right mid shin;

Right popliteal artery, PTA and DPA pulses not palpable. Signal biphasic;

Coolish right foot up to mid shin, CRT 2 seconds;

CTA lower limb, with fracture of the posterior cortex of proximal right femur. [28] The major diagnosis was that the Plaintiff suffered crush injury over the right proximal thigh with tractional injury to femoral nerve and Sartorius muscle cut. As he was still bleeding upon arrival in hospital, he had to undergo an operation for “wound debridement and wound exploration” to secure the bleeding, and a washout on the same day of his admission. Surgery to repair his right thigh muscles was performed by an orthopaedic surgical team. [29] At the time of accident in 2019, the Plaintiff was 49 years old, still in his prime. In his witness statement, his description of his injuries is quite similar to those described by Dr. Khairul (PW2). The Plaintiff’s description of his injuries are as follows:

Bruising over the right thigh;

(ii) Laceration wound over the inguinal region with a puncture wound on the right buttocks;

(iii) Bleeding from the right gluteal region;

(iv) Laceration injury to the Sartorius muscle;

Laceration wound over the right mid-shin;

(vi) Fracture of the right proximal femur; and

(vii) Crush injury over the right proximal thigh with fractional injury to the femoral nerve and Sartorius muscle cut. [30] On the day of his discharge from Hospital Kuala Lumpur on 19th November 2019, the Plaintiff was issued a “Refer for Continuation of Care” letter stating that he had to undergo follow-up Orthopaedic and Rehabilitation treatment upon his return to his home in Kota Kinabalu, Sabah. [31] Given the gravity of his nerve and muscle injuries, the Plaintiff had to see several specialists. The evidence adduced showed that he was treated in Kota Kinabalu, inter alia, at the Neurophysiology Unit, Medical Department of Hospital Queen Elizabeth II by Datuk Dr. Pulivendhan Sellamuthu and at KPJ Sabah Specialist Hospital by Neurology Specialist, Dr. Chia Yuen Kang. [32] Due to the serious nerve and muscle injuries in his groin area caused by the incident on 3rd November 2019, the Plaintiff suffers erectile dysfunction from the age of only 49. [33] Sometime in January 2020, about 2 months after the unfortunate incident, the Plaintiff travelled to Taiwan to seek nerve rehabilitation treatment. He testified of having heard that Chang Gung Medical Centre in Taipei, Taiwan, has advanced technology for nerve rehabilitation. In his words: “At that time, I was in extreme pain and was desperate, forcing me to seek treatment in Taipei, Taiwan, as my career, quality of life, and my family’s well-being depended on my health.” [34] Another noteworthy fact is that the Plaintiff’s injuries compelled him to give up the game of golf – which he testified to have been an essential activity for him to meet other businessmen to secure contracts and projects for those companies in which he is a director. [35] Evidence was also adduced to prove that the Plaintiff suffers from Post-Traumatic Stress Disorder as he had suffered debilitating injuries and was trapped for over 45 minutes before being rescued. He testified that he has sleeping difficulties and problems communicating with his wife, caused by the trauma, severe nerve injuries to his groin and his erectile dysfunction respectively. Damages to be allowed [36] Generally, damages for personal injuries causing pain, suffering and loss of amenities are awarded as General Damages, based on the facts of each case and guided by previous awards made by the courts. The Malaysian Bar compiled a table of such awards and issued a REVISED COMPENDIUM OF PERSONAL INJURY AWARDS in October 2018 (“the said Compendium”). In its circular, the Bar made it clear that the said Compendium is merely a guideline, intended as a quick reference for judges and lawyers, and is neither meant to stifle the parties’ rights to submit for amounts below or above the stipulated quantum, nor to fetter the court’s discretion. “Judges and lawyers are at liberty to depart from the (said) Compendium if case law or factual circumstances so dictate.” [37] Besides General Damages, those who suffer personal injuries and other losses as a result of some acts of negligence or breach of statutory duties are also entitled to claim Special Damages (including damages for future loss of earnings), Aggravated Damages and Exemplary Damages if warranted by the facts of the case. [38] In Ahmad Faizal bin Mohamad Ali & 2 Ors v. Jay Shree Doshi [2026] CLJU 327, the Court of Appeal held that for Aggravated Damages to be awarded, there must be evidence of a defendant having been guilty of malicious, contumelious, offensive, outrageous and/or "exceptional" behaviour or conduct which had caused distress, anguish, misery, hurt and/or injury to the feelings of the plaintiff – which the court described as “aggravating circumstances”. Without such aggravating circumstances, an award of Aggravated Damages would be unjustified and erroneous. [39] Guided by Ahmad Faizal bin Mohamad Ali & 2 Ors v. Jay Shree Doshi (supra), I find that there were no “aggravating circumstances” in this case which would justify an award of Aggravated Damages. Thus, the Plaintiff’s claim for Aggravated Damages and Exemplary Damages ought to be dismissed. Further, I find that based on the facts of this case, instead of ordering Aggravated Damages or Exemplary Damages, this Court should just award adequate General Damages and Special Damages based on the evidence adduced by the Plaintiff. Quantum of General Damages Crush Injury & Fracture of Posterior Cortex of Proximal Right Femur [40] The first item for deliberation for General Damages is what was described collectively as “Crush injury over right proximal thigh and fracture of Posterior Cortex of Proximal Right Femur”. A crush injury is said to occur when “significant external force or pressure is applied over a prolonged period to a body part, causing deep tissue, muscle, nerve, and blood vessel damage”. In this case, the “prolonged period” was for over 45 minutes. Even though 45 minutes would feel like a short period when one is watching a movie, every minute of being trapped inside a gap in the escalator – while being crushed at the groin and bleeding – must have felt like an hour long for the Plaintiff who narrated his agonising experience during the trial. The permanent damage suffered is evidence of the severity of the Plaintiff’s injuries. [41] Further, this Court may take judicial notice that a fracture of Posterior Cortex of Proximal Right Femur could cause the leg to be unstable and to suffer a permanent limp – as suffered by the Plaintiff. This because the posterior cortex of the proximal right femur is the back outer layer of the thigh bone just below the hip joint. Anatomically, this area serves as “critical anchor points for the hip joint capsule and major muscles like the gluteus maximus and quadratus femoris”. [42] I have noted from the said Compendium which was compiled in year 2018 that the awards for fractures of the femur had been up to RM48,500. As the Plaintiff is getting compensated only in the year 2026, there is therefore a need to adjust upward for inflation. Another significant point in this case is the position of the fracture on the femur; the fracture suffered by the Plaintiff was at the posterior cortex of the proximal right femur just below the hip joint, i.e. at the critical anchor points for the hip joint capsule and major muscles like the gluteus maximus and quadratus femoris. The pain and suffering of injuries at the joints are more substantial because joints have moving parts. The motion of fractured and misaligned bones inevitably increases the pain and lengthens the healing period. [43] To recapitulate, the crush injury was over the right proximal thigh with tractional injury to the femoral nerve and Sartorius muscle cut, the Plaintiff was not rescued immediately, and his right leg up to the groin area was left trapped in the escalator for over 45 minutes – worsening the chances of recovery of his severed femoral nerves and Sartorius muscles. I bear in mind that the escalator was still on, i.e. pushing to move, when the Plaintiff’s right limb was trapped inside the gap, meaning that he was being crushed and ‘wrung’ by the moving metal panels of the escalator. Having his pistol in his trousers pocket was the ‘saving grace’ which blocked the crush injury from causing even more severe injuries and damage. [44] As narrated above, the Plaintiff had to undergo an operation for “wound debridement and wound exploration”, to secure the bleeding, washout on the same day of his admission, surgery to repair his right thigh muscles and also had to travel to a nerve specialist hospital in Taiwan to seek treatment with the hope of being able to walk normally again. [45] Having considered all the above facts, I am of the view that a global award of RM200,000 would be a fair compensation for the “Crush Injury over the Plaintiff’s right proximal thigh and fracture of Posterior Cortex of Proximal Right Femur”. Multiple laceration and puncture wounds [46] Since the Plaintiff also suffered puncture wounds at his groin, thigh, shin, gluteal region as a result of being ‘stabbed’ by the pointed edges of the escalator panel, I hold that an award of RM15,000 would be a fair award under the head of “multiple laceration and puncture wounds at his groin, thigh, shin and gluteal region. Pain, Suffering and Loss of Amenities [47] The 45-minute ordeal of having a right limb trapped and crushed at his groin in an escalator was just the beginning of the torture that he had to suffer and is still suffering. His ordeal was different from the case of a heavy object dropping on one’s foot, which was removed immediately and given prompt treatment. The Plaintiff was crushed at his groin and bleeding for over 45 minutes. After surgeries in Hospital Kuala Lumpur and hospitalisation there for 16 days, the Plaintiff’s recovery ordeal was just beginning. [48] After the incident, the Plaintiff suffered pain whenever his right limb was moved and had to use a wheelchair for approximately 9 months. However, even after that, his mobility remained limited. He had to undergo daily physiotherapy sessions until he could walk, but to this day, he still walks with a limp. This is not surprising due to two reasons; firstly, his sartorius muscles were cut and had to be repaired by a team of orthopaedic surgeons in Hospital Kuala Lumpur and secondly, the fracture that he suffered was at the posterior cortex of the proximal right femur just below the hip joint, i.e. at the critical anchor points for the hip joint capsule and major muscles that enable a human being to walk. The Plaintiff has become a weak legged man who walks with a limp – a total change from his pre-incident self of a good golfer who did business at golf clubs. [49] This Court must also consider the undisputed fact that the Plaintiff was suffering so much pain from his nerve injuries that he had to travel to a renowned hospital in Taiwan which has advanced technology for nerve rehabilitation to seek treatment there. [50] Even after suffering the agony of requiring treatment and physiotherapy for a long period, the Plaintiff suffers permanent disabilities, including deficits in his motor and sensory systems of the Sciatic Nerve. An excerpt from the medical report by Dr.Dharmalingam Muthiah who is a consultant orthopaedic surgeon, is shown below: [51] I take judicial notice that a positive Romberg Test means that there is loss of sensory function. The specialist’s finding that the Plaintiff suffers permanent deficit in his Sciatic Nerve was undisputed. At this juncture, it is relevant to point out that the Plaintiff had given full cooperation to the 2nd Defendant, including his attending an examination by a doctor appointed by the 2nd Defendant. [52] By reason of the facts as analysed above, and after considering the awards for Pain, Suffering and Loss of Amenities that have been awarded by the courts in the past, I bear in mind that the law requires each case to be decided based on its own facts, albeit guided by past awards. In my humble view, based on the facts of this case, an award of RM200,000 would be fair under the head of Pain, Suffering and Loss of Amenities for General Damages. Post-Traumatic Stress Disorder [53] A consultant psychiatrist, one Dr. Kumarswami Kannan from Gleneagles Hospital Kota Kinabalu, who treated the Plaintiff confirmed that he suffers Post-Traumatic Stress Disorder (“PTSD”). It is not surprising at all that the Plaintiff suffered PTSD as he was crushed at his groin and trapped for over 45 minutes before being rescued. He testified that he had sleeping difficulties, frequent nightmares, “low mood”, insomnia, anxiety attacks, and “flashbacks” of being trapped inside the escalator. [54] I take the view that the mental agony of a PTSD patient is as torturous as pain caused by nerves that are severely injured. Since the PTSD suffered by the Plaintiff has been confirmed by a consultant psychiatrist and was not seriously challenged by the 2nd Defendant, this Court will award a sum of RM50,000 for PTSD. Erectile Dysfunction [55] For any man, especially a married man, being impotent is a serious disability. It is a serious loss of manhood, more than just being unable to have/maintain an erection. From the evidence, I find that the groin injuries, which included nerves that were severely injured and muscles that were almost severed, are consistent with the Plaintiff suffering erectile dysfunction. He was only 49 years old when it happened. [56] Further, the Plaintiff’s wife (PW7) testified as follows regarding her loss of intimacy with her husband due to his erectile dysfunction: [57] In Rozlan bin Ramli lwn Muhammad Keiezzrie Nazrullah bin Che Hamid dan lain-lain [2026] MLJU 2627, the Sessions Court had awarded RM50,000 for erectile dysfunction. However, on appeal, the High Court increased the award to RM80,000 as the plaintiff was only 40 years old at the material time. In our present case, the Plaintiff was 49. Thus, I am of the view that an award of RM50,000 for erectile dysfunction would be adequate compensation. [58] For convenient reference, General Damages which this Court are awarding to the Plaintiff, are summed up in the following table: No Injuries Award (RM) 1 Crush injury over right proximal thigh and Unicortical fracture of Posterior Cortex of Proximal Right Femur 200,000.00 2 Multiple laceration and puncture wounds (groin, thigh, shin, gluteal region) 15,000.00 3 Pain, Suffering and Loss of Amenities 200,000.00 4 Post-Traumatic Stress Disorder (PTSD) 50,000.00 5 Sexual dysfunction 50,000.00 Total General Damages 515,000.00 Special Damages [59] I find that the Plaintiff adduced sufficient evidence, both documentary and oral, to justify most of his claim for Special Damages. As mentioned above, there were a total 52 exhibits admitted in evidence for the Plaintiff’s case, marked as exhibits “P1” to “P52” respectively. [60] The Plaintiff, whose life was severely afflicted by those injuries, was certainly justified in incurring medical expenses, which included for follow-up treatment and rehabilitation. Those medical expenses incurred in KPJ Sabah Specialist Hospital, Columbia Asia Hospital, Gleneagles Hospital Kuala Lumpur, Gleneagles Hospital Kota Kinabalu and Chang Gung Memorial Hospital, Taiwan respectively were proven, and were in fact of reasonable quantum. I also find that the Plaintiff was well justified in travelling to Chang Gung Memorial Hospital in Taiwan – which is equipped with advanced technology for nerve rehabilitation – to seek nerve rehabilitation treatment. [61] Another item of expenses which merits an explanation is that for acupuncture services. I take the view that in this day and age, this Court should take judicial notice that acupuncture has been proven to be effective in treating patients who have suffered strokes and other forms of muscle and nerve injuries. The Plaintiff’s medical reports, which were issued by medical specialists, mentioned a femoral nerve and Sartorius muscle cut. [62] In Rohgetana a/p Mayathevan (an infant suing through his father and litigation representative, Mayathevan a/l Mayandi) v Dr Navin Kumar & Ors [2017] 4 MLJ 102, the Court of Appeal upheld an award for Ayurvedic complementary medical treatment made by the High Court. It was held that such claims were to be allowed so long as they were within a reasonable sum and justifiable in the circumstances. I also take the view that medical expenses that may be claimed as Special Damages should not be limited to Allopathic medical treatment. [63] The Court of Appeal in Rohgetana a/p Mayathevan (supra) also ruled that Special Damages could be proven by oral evidence if documentary evidence is not available, and went on to rule that such claims were to be allowed so long as they were within a reasonable sum and justifiable in the circumstances. The relevant passage from the judgment of the Court of Appeal is as follows: “[16] In respect of Therapies (Spastic Centre) and Complimentary medicine (Ayurvedic), the defendants persisted before us that only such expenses incurred as could be supported by receipts (documentary proof) ought to be allowed. We however did not find that the learned judge had misdirected himself on the law when he held that special damages, so long as they were pleaded and particularised, could be proved by oral or documentary evidence (ABDA Airfreight Sdn Bhd v Sistem Penerbangan Malaysia Bhd [2001] 3 MLJ 641; [2001] 8 CLJ 1). Such claims were to be allowed so long they were within a reasonable sum and justifiable in the circumstances. Like the learned judge, we therefore did not find any reason to interfere with the award of the learned deputy registrar in respect of these two items.” [64] In a recent case of Prince Court Medical Centre Sdn Bhd v. Lim Yoke Har [2025] CLJU 3489, Justice Leong Wai Hong reiterated the point that evidence of expenses incurred may be proven through documentary evidence or oral evidence. His Lordship held: “[91] The evidence regarding expenses incurred may be given through documents or the oral testimony of the witnesses or both. The absence of documentary evidence is not fatal. The Court can accept the oral testimony of the plaintiff or a witness that a particular expense has indeed been incurred based on common sense. As example would be the plaintiff can produce a record of a visit to the doctor but can't produce the taxi receipt. A quantum will be allowed based on a reasonable sum and justifiable in the circumstances.” [65] In my humble view, it is up to the trial judge to assess the oral evidence on its own facts. In the present case before me, the Plaintiff – who was an active and healthy businessman before the accident – was well justified in seeking various treatments with the hope of a full recovery. Even though it is no pleasure to be pricked by multiple needles repeatedly, it was reasonable in the circumstances to opt for acupuncture treatment for his injured nerves and muscles. The sum of RM6,500 claimed for acupuncture treatment was proven by the Plaintiff’s testimony as well as the evidence of Phuah Wei Yaw (PW4) who works with Meridian Acupuncture & Stroke Centre Sdn Bhd in Kuala Lumpur. I find PW4 to be an honest witness who confirmed that the Plaintiff did indeed receive acupuncture treatment at Meridian Acupuncture & Stroke Centre and paid RM6,500 for the services. Loss of Income [66] Loss of income is certainly one of the heads of damages that could be awarded to a plaintiff such as the Plaintiff in this case, if there is evidence to prove the same. The issue is whether he has suffered loss of income as a result of those injuries being inflicted upon him. The evidence shows that the Plaintiff was at the material time a director of several companies, including Pembinaan Cekap Prestasi Sdn Bhd, Jawat Johan Sdn Bhd, etcetera. Pembinaan Cekap Prestasi Sdn Bhd is a building contractor while Jawat Johan Sdn Bhd is in the business of supplying medical equipment, However, as the Plaintiff has adduced evidence only regarding his loss of income from Pembinaan Cekap Prestasi Sdn Bhd, this Court shall consider only his claim for loss of income based on his evidence of income from the said company. [67] I find that the Plaintiff has proven that as a director of Pembinaan Cekap Prestasi Sdn Bhd, he is entitled to receive director fees annually based on the value of the contracts that he brought in for the company. The evidence shows that prior to the accident, the Plaintiff received a salary of RM30,000 per month and on 4th July 2019, he received director fees of RM515,000, i.e. just four months before the accident. His evidence is that he received such substantial director fees annually. [68] The staff in charge of the accounts at Pembinaan Cekap Prestasi Sdn Bhd, namely Norlaili binti Mohd Nawi (PW6) testified that for about 17 months after the accident, the Plaintiff continued to be paid a salary of RM30,000 per month until the end of April 2021. However, as the Plaintiff was unable to work, his salary was reduced in May 2021 to RM15,000 per month. A month later, starting from June 2021, the Plaintiff’s salary was further reduced to only RM5,000 per month. In support of this oral evidence, the forms filed with the Employees Provident Fund and also Income Tax Forms EA to prove that the Plaintiff’s salary was indeed RM30,000 prior to the accident and also his receipt of the director fees of RM515,000 in 2019, were adduced as evidence during the trial. [69] According to PW6, she was instructed by the Managing Director of Pembinaan Cekap Prestasi Sdn Bhd, namely Mr.Chan Yee Fatt, regarding the reduction of the Plaintiff’s salary. I find the Plaintiff’s evidence and also PW6’s evidence to be credible as the company had maintained the Plaintiff’s salary at RM30,000 per month for about 17 months even though he was receiving medical treatment and rehabilitation, and obviously unable to work as usual. Further, I find that the EPF forms and Form EA were contemporaneous documents that ought, on a balance of probabilities, to be accepted by this Court. [70] Learned counsel for the Defendant submits that the Plaintiff could not have obtained construction contracts during the lockdown period in the year 2020. On this point, I accept the Plaintiff’s evidence that he could have continued working in the years 2020 and 2021 if he had not been severely injured at the 2nd Defendant’s premises because the construction industry was exempted from the Covid-19 lockdown movement control order. As a matter of fact, Pembinaan Cekap Prestasi Sdn Bhd is in the construction industry. [71] The quantum of loss of income claimed by the Plaintiff was more than RM1million. However, this Court finds that a lower sum of RM785,000 ought to be awarded. Even though the Plaintiff received RM515,000 as director fees in the year 2019, it could lead to unjust enrichment if this Court is to award him RM500,000 per annum as the director fees that he had lost. This Court finds that a sum of about half the sum of RM515,000 per annum, i.e. RM260,000 per annum, for a period of two years would be fair and adequate compensation for his loss of director fees for the years 2020 and 2021 – when he was crippled by the injuries and unable to work as he used to do for two years. This works out to RM520,000. [72] The full particulars for this award of RM785,000 as loss of income are as follows: Salary for month of May 2021: RM15,000. Reduction in salary in May 2021: RM30,000 less RM15,000 = RM15,000. Salary from June 2021 till 31st March 2022: RM5,000 per month Reduction in salary for the period of 10 months: RM25,000 x 10 = RM250,000. Loss of director fees for year 2020 and 2021: RM260,000 x 2 = RM520,000. Total loss of income: RM15,000 + RM250,000 + RM520,000 = RM785,000. Other Items of Special Damages [73] The Plaintiff’s claim for RM11,300 being the sum that he incurred to buy an electrical bed and a medical mattress is well-justified, given that he lost the use of his right leg for over a year while undergoing treatment and rehabilitation. [74] A private nurse, one Miss Oon Lay Teng (PW3), who holds a Diploma in Nursing and is registered with the Nursing Board of Malaysia testified that she was hired to provide the Plaintiff with caregiving and nursing services from January 2020 till 1st March 2022, and that the Plaintiff paid her RM4,800 per month. Cash vouchers which were signed by PW3 to acknowledge receipt of her salary were adduced in evidence and marked as Exhibit “P31”. For this claim, this Court finds that a claim for nursing care for a period of 18 months in Kuala Lumpur was justified as the Plaintiff’s home is in Sabah, and he had to travel to Kuala Lumpur to receive specialised rehabilitation treatment over a period of nearly 2 years. A sum of RM86,400 (RM4,800 x18) should be allowed for caregiver and nursing care. [75] Likewise, I find that the Plaintiff’s claim for rental of an apartment in Kuala Lumpur, for which he paid RM67,200 as rent, and the hiring of a driver whilst in Kuala Lumpur to drive him to the hospitals and acupuncture centre are well justified too. It would be unreasonable to expect the Plaintiff, who was wheelchair bound for over a year, to be calling a taxi every time he needed to go for physiotherapy or acupuncture – which had to be performed regularly. His tenancy agreement dated 1st January 2020 was adduced as evidence (exhibit “P33”). Further, the driver whom he hired, one Mr. Lim Teh Shen (PW5) confirmed that he received RM3,500 per month as salary from the Plaintiff during his tenure as his driver. Payment vouchers were duly adduced as evidence. Thus, this Court ought to allow the rentals and salary paid by the Plaintiff to his landlord and driver respectively. [76] The Plaintiff’s claim for travelling expenses to Kuala Lumpur from Kota Kinabalu, should be allowed as it would be unreasonable to expect him to remain in Kuala Lumpur for a whole year and not to see his family members who are residing in Sabah. His travelling expenses to Taiwan for medical treatment ought to be allowed too. [77] Lastly, based on the medical reports adduced in evidence – which were not challenged – I find that it is necessary for the Plaintiff to continue to undergo physiotherapy regularly in the future. Looking at the cost of physiotherapy from the bills adduced in evidence, this Court finds that the Plaintiff’s claim for RM50,000 as Future Physiotherapy Costs to be reasonable. [78] Under the general head of Special Damages, the items and quantum which this Court will allow are as set out in the table below: No. Claims Allowed Amount (RM) A1 KPJ Sabah Specialist Hospital 756.10 A2 Chang Gung Memorial Hospital, Taiwan 1,040.43 A3 Columbia Asia Hospital (follow-up treatment & rehabilitation) 23,866.70 A4 Gleneagles Hospital Kuala Lumpur 5,706.00 A5 Gleneagles Hospital Kota Kinabalu 251.00 B Rehabilitation & Acupuncture 6,500.00 C Loss of Income 785,000.00 D Electric Bed & Medical Mattress 11,300.00 E Caregiver cum Nursing Care 86,400.00 F Driver in Kuala Lumpur 34,300.00 G Accommodation in Kuala Lumpur 67,200.00 Counsel for the Plaintiff: Mansonia Kaur A/P Mundeep Singh SOLICITORS FOR THE PLAINTIFF: MESSRS MORTHI SEGARAN & CO. Advocates & Solicitors No. 5-1, Tingkat Satu, Jalan S2 C1, Sports Complex Square, Seremban 2, 70300 SEREMBAN, NEGERI SEMBILAN. Counsel for the Defendants: Dalveena Jit Kaur Korotana A/P Malkit Singh SOLICITORS FOR THE DEFENDANTS: MESSRS ARNOLD ANDREW & CO. Advocates & Solicitors 26A, Level 26, Wisma Tun Sambanthan, No. 2, Jalan Sultan Sulaiman, Peti Surat 12133, 50768 KUALA LUMPUR. CASES REFERRED TO:

Datuk Bandar Dewan Bandaraya Kuala Lumpur v. Ong Kok Peng [1993] 3 CLJ 205.

Ahmad Faizal bin Mohamad Ali & 2 Ors v. Jay Shree Doshi [2026]

Rozlan bin Ramli lwn Muhammad Keiezzrie Nazrullah bin Che Hamid dan lain-lain [2026] MLJU 2627.

Rohgetana a/p Mayathevan (an infant suing through his father and litigation representative, Mayathevan a/l Mayandi) v Dr Navin Kumar & Ors [2017] 4 MLJ 102.

Prince Court Medical Centre Sdn Bhd v. Lim Yoke Har [2025] CLJU

3489.

S. 2 of the United Kingdom Occupiers' Liability Act 1957.

Ss. 14 & 21 of the Factories and Machinery Act 1967.

Occupational Safety and Health Act 1994.

Factories and Machinery (Repeal) Act 2022.