viii. Laceration wound with muscle cut left knee. ix. Close fracture superior and inferior right and left pubic rami. x. Liver contusion. xi. Closed fracture right medial malleolus. xii. Open fracture medial epicondyle left femur. xiii. Fracture ondontoid process of cervical C2. [6] The medical report dated, 18.12.2018, by Dr Yoga Raj, a specialist for the Plaintiff, stated as follows: i. Multiple scars. ii. 1 cm wasting of the right arm. iii. 1 cm wasting of the left calf. iv. Decreased range of movement of the right elbow. v. Grade II right anterior cruciate ligament laxity (ACL). vi. A course of physiotherapy will help improve the muscle bulk. Currently, this will cost RM 1,200 (20 visits). vii. The scars on the face and leg may need injections to reduce the keloid scars. This may cost up to RM5,000 and may need repeated follow up. viii. The fracture of the left femur and right ulna has not fully united. She will need debridement and bone grafting of the left femur and right ulna. The fracture will take 3 to 6 months to fully unite. It will cost patient RM16,000. ix. The implants over the right ulna, left femur (plate), right tibia and left femur (screw) may be removed after the fractures have fully healed. Removal of this nail will cost RM20,000. The patient will take up to 4 weeks to recover fully and will need to use crutches during this time. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 5 x. This patient may develop osteoathritis on both knees earlier in the future. This will then have to be treated with medications (painkillers cost up to RM100 per month) and finally, knee replacement surgery. Currently, a knee replacement surgery will cost between RM26,000 to RM28,000. This will last her 15 years. She will need knee revision surgery after that. Each revision may cost RM35,000. xi. She will have to live with residual pain on the knee and left hip. [7] The report by Datuk Dr Peraba, the Defendant’s specialist from Putra Specialist Hospital, dated 24.05.2019, stated as follows: a) Head injury has resolved completely with no permanent disabilities. b) The fracture of the right ulna has united. The side location of the right radial head has been reduced. c) The fractures of the left femur and right medial malleolus have united. d) The fractures of the right superior and inferior and left pubic rami have healed. e) The injuries have resulted in: f) Permanent, hypo and hyper-pigmented, unsightly, some keloidal, operative and L/W scars noted the right side of forehead, right elbow extending to the mid-forearm, right buttock extending to the right thigh, left iliac crest, left thigh and both knees. g) Mild wasting of the right arm and forearm muscles. h) Mild wasting of the quadriceps and calf muscles. i) Reduced muscle power of the left thigh and knee. j) Still walks with the aid of 2 crutches. k) She has completed her physiotherapy sessions at Columbia Asia Hospital. She now has a visiting physiotherapist who is helping her continue with the exercises at home. The mild wasting of the right arm, forearm, left quadriceps and calf muscles and reduced muscle power of the left thigh and knee should further improve with time and as she goes about doing her daily activities. l) The fracture of the left femur has partially united. Fragments are not circumferentially united as yet. She underwent bone grafting on the 9th of April 2019. It is only 1½ months since the bone grafting. The fracture should fully consolidate within Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 6 the next 2 months (normally bone grafting takes about 3 months to heal). She is now bearing weight on the left lower limb with the help of 2 crutches; this too will facilitate bone union. m) The fracture of the right ulna has also partially united. This too may fully consolidate with time. n) As for the implants over the left femur, right acetabulum, right ulna and right tibia, these need not be removed unless complications arise from it (such as infection, broken implant or loosening of implant pain, to name a few). If needed, these operations can be done at any government hospital at a minimal cost (RM500). o) The patient is currently not on any analgesics. However, if required these are easily available at any government hospital or clinic for free. p) X-rays of both knees done today, show no osteoarthritic, or joint space narrowing. There is also no joint incongruity. The fracture of the right tibial plateau was treated with a fixation screw. It has healed well. It is unlikely that this patient will develop end stage osteoarthritis of both knees in the long term that will warrant a total knee replacement. q) The hypo-pigmented scar over the right side of forehead is not keloidal and is partially covered by her hair on the scalp. This scalp will fade with time. She does not require injections for this scar. The scars over the left knee have formed keloids. These scars are covered by the pants she wears. r) She is still on follow up at Columbia Asia Hospital. s) The patient can return to work once the fracture of the left femur has consolidated. [8] Another report by a neuropsychiatric specialist from Hospital Sultanah Aminah, Johor Bahru, dated 03.08.2019, stated as follows: i. Patient had sustained a mild Minor Neurocognitive Disorder secondary to severe brain injury. She should be started on medication known as cognitive enhancers to improve the memory. Memory enhancers are a group of medication used to improve memory. This medicine cost about RM200 – RM300 a month excluding consultation in a private hospital. The evidence for effectiveness of cognitive enhancers was not great, but as a standard management, a Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 7 trial of at least 6 months should be considered. If medication does not show any beneficial affect after 6 months trial, it should be stopped as no other medicines or treatment is proven to be effective. ii. She might need cognitive and behaviour therapy to control her irritability (anger management) and this service could cost RM400/session for 10 sessions (Total RM4,000) in a private centre with psychologist. Medical treatments modalities, such as prescribing mood stabilisers such as Lithium/Epilim could be used to treat this anger problem. This medication cost about RM100/month to be given for at least 2 years. She was not keen to be started on medicines and prefers using essential oil for relaxation. iii. Patient had developed some features of personality mimicking borderline personality disorder. She had symptoms such as easily angry. She might be suffering from developmental stagnation, meaning that she fails to mature emotionally, socially, or psychologically after the trauma. It is difficult to quantify how much this impairment would affect her. Lithium/Epilim could be used to treat this. This medication costs about RM100/month to be given for at least 2 years. She was not keen to be started on medicines. iv. She needs no continuous nursing care because she was independent in terms of basic ADL. She is not fit to resume her work yet due to combination of orthopaedic and nuero-cognitive complications mentioned above. In my opinion, she is fit to give evidence in the court of law. [9] All the medical reports show that it is apparent that the Plaintiff suffered from serious injuries resulting from the accident. The report by Dr Aswadi, dated 12.07.2018, states the Plaintiff suffered from nine (9) fractures to the bones in her body. The report by Dr Yoga Raj, mentions wasting of the right arm and left calf. It also states the Plaintiff will need debridement and bone grafting to the left femur and right ulna. It states: “This patient may develop osteoathritis on both knees earlier in the future and finally knee replacement surgery and knee revision surgery after that. Each revision may cost RM35,000. She will have to live with residual pain on the knee and left hip.” [10] The neuropsychiatric specialist stated that the Plaintiff suffered a mild Minor Neurocognitive Disorder secondary to severe brain injury. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 8 She might need cognitive and behaviour therapy to control her irritability (anger management). It was stated that the patient had developed some features of personality mimicking borderline personality disorder. She might be suffering from developmental stagnation, meaning that she may fail to mature emotionally, socially, or psychologically after the trauma. DEFENDANT’S SUBMISSION ON GENERAL DAMAGES [11] The Defendant submits that the damages of RM306,810.00, awarded by the Sessions Judge, is extremely high and that the award for pain and suffering for the injuries should be a global award instead of being assessed individually. The Defendant submits that the Sessions Judge had erred in her method of assessment by assessing the injuries individually and then, deducting ten percent (10%) to arrive at the award, before deducting a further thirty percent (30%) for early death caused by an unrelated accident. [12] The main ground of the Defendant’s submission above is that the award for a bedridden state with awareness is in the region of RM420,000, and no matter how serious the injuries suffered by the Plaintiff, the award for multiple injuries should not exceed the award for a bedridden state of awareness. The Defendant has not cited any authorities in support of this contention. In any event, I find this submission to the misconceived as one should compare “apples to apples”, and in some cases, multiple serious injuries, as in the present case, could cause more suffering to the Plaintiff than a bedridden state of awareness. [13] The Defendant submits that since the Plaintiff died twenty-three (23) months after the accident, the Sessions Judge should have deducted sixty percent (60%) from the total award for pain and suffering. However, in the present case, the Sessions Judge only deducted thirty percent (30%). [14] The Defendant in para 33 of his submission states as follows: “(33) Oleh itu Defendan memohon dengan hormat, untuk rayuan ini dibenarkan agar award Ganti Rugi Am sebelum tolakan (sebelum Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 9 kematian) dikurangkan dari RM438,300 dan ditukar kepada RM335,000.” [15] The Sessions Judge did not apply the wrong principles in making the award for general damages. It was just that the deduction of thirty percent (30%) for early death is lower than what the Defendant submits is the fair percentage of deduction. The Defendant submits that a fair percentage is a deduction of sixty percent (60%). [16] Applying the general principles laid down by the cases cited above, it is apparent that the Sessions Judge did apply the right principle by deducting a percentage from the total award to account for the early death of the Plaintiff. The exact percentage, however, is within the discretion of the Sessions Judge who had the benefit of hearing the witnesses’ expert evidence in court. There is no strict rule on the exact percentage to be deducted. I find that the deduction is not so low as to warrant interference by an appellate court. [17] For the said reasons, I do not find any grounds to disturb the Sessions Judge’s award for this item of general damages. COST OF TREATMENT AT A PRIVATE HOSPITAL [18] The Defendant submits that the Sessions Judge had erred in awarding the full sum of RM106,757.45 for treatment at a private hospital without making any deduction. The Sessions Judge in making the award was guided by the decision of the court in the case of Param Thaman Madamuthu v Karipriya Namta Kuma [2010)] 1 LNS 1241. I find that the Sessions Judge had applied the correct principle in allowing the Plaintiff’s claim for treatment in full without any deduction. This Court is also guided by the decision of the High Court in the case of Savaranan a/l A. Muthu (Civil Appeal No. JA-11B-25-11/2017), where the issue of deduction of two-thirds (2/3) of the cost of treatment at a private hospital was considered. Her Ladyship See Mee Chun allowed the claim in full without any deductions. This was followed by another decision, in the case of Tek Chun Wei v Yap Tan Boon (JA-12B-16- 04/2019), where the High Court at Johor Bahru set aside the decision of the Sessions Judge which only allowed one-third (1/3) of the cost of treatment at a private hospital and awarded the plaintiff the full cost without any deductions. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 10 For the above reasons, I find that the Sessions Judge did not make any error in her decision on quantum for the two (2) items. Therefore, the Defendant’s appeal on quantum is dismissed. I did not award any cost to the Plaintiff in this appeal for the reason that the Plaintiff’s appeal against the decision of the Sessions Judge on the issue of quantum is also dismissed. CONCLUSION [19] For the reasons aforesaid, I dismiss the Defendant’s appeal on quantum with no order to cost. Dated 25th July 2022 Signed, ………………………….. Ahmad Murad Bin Abdul Aziz Judicial Commissioner High Court of Malaya Johor Bahru Johor Darul Ta’zim Counsel / Solicitors: For the Appellants : Mohd Apandi bin Mohd Yatim Messrs Gan, Ho & Razlan Hadri Suite K-3-10, Level 3, Blok K Solaris Mont Kiara, No.2 Jalan Solaris 50480 Kuala Lumpur. [Ref: L808/1908/AMG-44/RHZ] For the Respondent : Teo Han Ley & Voon Anne Messrs Teo & Associates No.84 & 85, Jalan Padi 1 Bandar Baru Uda Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 11 81200 Johor Bahru Johor Darul Ta’zim. [Ref: TSK/AC/6302/18/HL/su/ima] Cases Referred To: Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 Param Thaman Madamuthu v Karipriya Namta Kuma [2010] 1 LNS1241 Savaranan a/l A. Muthu (Civil Appeal No. JA-11B-25-11/2017) Tek Chun Wei v Yap Tan Boon (JA-12B-16-04/2019) Topaiwah v Salleh [1968] 1 MLJ 284, 285 Flint v Lovell [1935] 1 KB 354 Greenfield v London and North Eastern Railway Company [1945] KB 89 Wilson v Pilley [1957] 3 All ER 525, 526 Legislation Referred To: Rules of Court 2012 Hearing Date : 28.04.2022 Decision Date : 11.05.2022