Ling Teck Xiong v Bujang Bin Hanipah (JA-12B-5-02/2026)

1.

MUHAMMAD SAFUAN BIN BUJANG …RESPONDENTS IN THE SESSIONS COURT AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM MALAYSIA CIVIL SUIT NO. : JA-A53KJ-580-08/2023 BETWEEN S/N HIepKv4FkywqrwoKh8aWw 2 1.

MUHAMMAD SAFUAN BIN BUJANG …PLAINTIFFS AND LING TECK XIONG …DEFENDANT GROUNDS OF JUDGMENT

This is the Defendant’s appeal against the whole of the decision of the Sessions Court Judge (“the SCJ”) delivered on 27 January 2026, by which the Defendant was found wholly liable for a road traffic accident and ordered to pay general, special and future damages to the Plaintiffs.

For convenience I refer to the parties as they stood below –

Ling Teck Xiong as “the Defendant”;

Bujang bin Hanipah as “the First Plaintiff”; and

Muhammad Safuan bin Bujang as “the Second Plaintiff”.

An accident occurred on 23 July 2022 at about 7:15 in the evening along the Eastern Dispersal Link (EDL) Highway between Permas Jaya and Pasir Gudang, Johor Bahru. It involved motorcycle JNS 8337, ridden by the First Plaintiff and owned by the Second Plaintiff, and motorcar SMD 8133, driven by the Defendant.

The First Plaintiff’s case was that he was travelling straight in the right-hand lane (lane A2–A3) coming from Permas Jaya towards Pasir Gudang when he was struck from behind by the Defendant’s car. The Defendant’s case was that the First Plaintiff had emerged suddenly from a slip road on the left (the Taman Rinting junction), cut diagonally across the carriageway into the Defendant’s lane and was struck before the Defendant could avoid him.

The Plaintiffs called three witnesses –

SP1 (Sjn Md Nizam bin Abdul Hamid, the investigating officer);

SP2 (the First Plaintiff); and

SP3 (Mohd Zaharu Asman bin Che Ibrahim, a mechanic of Kim Kit Lee Motor Shop, who proved the cost of repairing the motorcycle).

The Defendant (SD1) testified on his own behalf and called no other witness.

The medical reports of Dr Yoga Raj (for the Plaintiffs) and Dr Jayamalar Thurairajasingam (for the Defendant) were admitted by consent, subject to submission.

The SCJ held the Defendant 100% liable and rejected the plea of contributory negligence. On quantum, the SCJ assessed the First Plaintiff’s general damages by itemisation, applying a 10% deduction for overlapping on the pelvic cluster and made the awards set out in the schedule at the end of these grounds. The First Plaintiff was awarded general damages totalling RM179,600.00, future treatment costs of RM22,666.66 (after a one-third discount for contingencies) and agreed special damages of RM3,163.00, with interest. The Second Plaintiff was awarded RM1,613.00 for the cost of repairing the motorcycle.

On liability, the Defendant contended that the SCJ was plainly wrong to prefer the First Plaintiff’s version. He relied principally on –

the promptness of his own police report (lodged about 1½ hours after the accident) against the First Plaintiff’s report lodged some three months later;

the investigating officer’s classification of the case as “RTM”;

the physical damage, which he said was consistent with his diagonal-crossing account; and

the contention that the First Plaintiff’s version was inherently improbable.

In the alternative he sought an apportionment of 50:50.

On quantum, the Defendant contended that the pelvic injuries ought to have been assessed globally rather than itemised and that a number of the separate awards were duplicative, unsupported by the medical evidence, or excessive against the trend of awards. S/N HIepKv4FkywqrwoKh8aWw

Although an appeal to this Court is by way of rehearing under section 29 of the Courts of Judicature Act 1964 [Act 91], that does not entitle this Court to retry the case or to substitute its own view of the facts simply because it might have reached a different conclusion. The governing standard is that an appellate court will not disturb the findings of the trial court unless they are plainly wrong. [See : Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 1 MLJ 813]. It is a conclusion that no reasonable judge, having the advantage of seeing and hearing the witnesses, could have reached.

On quantum, the principle is equally settled. An appellate court is slow to interfere with an award of damages unless the trial court acted upon a wrong principle of law, or the amount is so inordinately high or so very low as to make it a wholly erroneous estimate. [See : United Plywood and Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ 237; Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22; Topaiwah v. Salleh [1968] 1 MLJ 284]. Where, however, an item is awarded on a wrong principle, for example, where it duplicates another award, or rests on no evidence, interference is not only permissible but required.

Faced with two irreconcilable accounts, the SCJ correctly directed himself to determine which version was inherently more probable on the whole of the evidence, which is the approach long established in running-down cases. [See : Tabarani Mohd Arsad & Anor v. Chan Tenn Yeu [1999] 3 CLJ 188]. The question for me is not whether I would have weighed that evidence differently, but whether his conclusion was one reasonably open to him.

I deal first with the direction of travel. The SCJ found that the First Plaintiff’s evidence that he came from Permas Jaya, travelling straight, was not challenged in cross-examination. That finding is borne out by the record that the defence’s own questioning proceeded on the footing that the First Plaintiff came from Permas Jaya, and the Defendant himself confirmed that he too came from Permas.

The Defendant relied on the promptness of his own report (lodged about 1½ hours after the accident) against the First Plaintiff's report (lodged on 27 October 2022, some three months later), invoking Karthiyayani & Anor v Lee Leong Sin & Anor [1975] 1 MLJ 119, Pendakwa Raya v. Ismail Atan [1992] 2 CLJ 1253 and Muh Sirun lwn. Yusoff Awang & Satu Lagi; Norimaniah Yusoff & Satu Lagi (Pihak Ketiga) [2014] 2 SMC 185 for the value of an early report made before there is opportunity for concoction. The promptness of the Defendant's report does not, however, advance his case on the decisive issue. His report and his counsel's cross-examination both S/N HIepKv4FkywqrwoKh8aWw proceeded on the footing that the First Plaintiff came from Permas Jaya, which is the SCJ's finding; what his report does not establish is the diagonal crossing, which rests on his oral account alone. As to the First Plaintiff's delay, the test in Karthiyayani is whether the report was made as early as could reasonably be expected; a delay does not of itself convert an account into an afterthought where the SCJ found the report (Exhibit P2) consistent with the First Plaintiff's testimony and with the objective damage. That credibility finding was open to him and the delay does not displace it.

The point of impact was agreed by the investigating officer to lie within the right-hand lane (A2–A3). On the Defendant’s account, the First Plaintiff would have had to traverse some three lanes, a width of about 10.5 metres, diagonally and unscathed, in evening traffic which the Defendant himself described as heavy, before being struck in the far right lane. The SCJ was entitled to regard that as inherently improbable, and I see no basis to disturb that assessment.

As to the physical evidence, the damage to the motorcycle was to its rear (rear lamp, number plate, mudguard) and to the car was to its front, with no damage to the right side of the motorcycle or the left side of the car.

I accept, as the Defendant submits, that the investigating officer made certain concessions in cross-examination that –

he agreed that there was no “buckling inward” of the rear of the motorcycle;

he could not be certain whether the impact was squarely to the rear or to the rear quarter; and

he could not say with certainty how the windscreen came to crack.

To that extent, the SCJ’s reliance on the windscreen damage as proof of a direct linear impact was put rather more highly than the evidence strictly allowed.

Those concessions do not, however, displace the central inference. The absence of any side impact to either vehicle remains difficult to reconcile with a motorcycle cutting across the carriageway and is consistent with a rear-end collision in the same lane. More importantly, the Defendant’s own evidence supported the finding rather than undermined it. He admitted that he was travelling at 80 to 90 km/h and that he had no time to think and he expressly conceded that he struck the rear of the motorcycle (“I langgar belakang dia”). In my judgment, that was a rear-end collision at that speed points to a failure to keep a proper lookout and a safe distance from the vehicle ahead, which is precisely what the SCJ found.

I turn to the “RTM” classification. The investigating officer confirmed that the case was classified RTM on 26 May 2024, yet he recorded the First Plaintiff’s statement only on 15 April 2025, which was nearly eleven months later. A classification reached before the account of one of the two protagonists had even been taken can carry little objective weight. In any event, a civil court is not bound by the police classification and must assess liability independently on the balance S/N HIepKv4FkywqrwoKh8aWw of probabilities. The SCJ was right to give the classification no determinative weight, and the fact that the officer maintained it does not cure its premature foundation.

The Defendant's reliance on Public Prosecutor v Mohamed Ali [1962] MLJ 257 does not assist. That case requires a court to accept the direct factual testimony of a police witness, which is neither contradicted nor inherently improbable; it does not require deference to a police officer's opinion or classification of fault, which remains for the court. Here, the officer's primary observations, that the point of impact, the absence of side damage, and the pattern of damage were accepted. It is only his RTM conclusion, reached before the First Plaintiff's account had been taken, to which no determinative weight could attach.

The SCJ also drew an adverse inference under section 114(g) of the Evidence Act 1950 [Act 56] from the Defendant’s failure to produce the dashcam footage. I approach that inference with some caution. The Defendant gave evidence that the device was not functioning at the material time, no contrary evidence was led and the Court itself observed during the trial that a dashcam is not compulsory equipment. I therefore place no reliance on the section 114(g) of Act 56 inference. That makes no difference to the result, because the finding of liability stands independently and sufficiently on the agreed point of impact, the damage pattern, the inherent improbability of the Defendant’s crossing account and the Defendant’s own admissions as to speed and rear impact.

Finally, on contributory negligence, the burden lay on the Defendant (sections 101 - 103 of Act 56) and he led no objective evidence that the First Plaintiff rode carelessly. A rider proceeding at a steady 60 km/h in his lane was not obliged to anticipate negligence on the part of a following driver. [See : KR Taxi Service Ltd & Anor v Zaharah & Ors [1969] 1 MLJ 49]. Hence, the plea was rightly rejected.

For these reasons, in my judgment, the SCJ’s finding that the Defendant was wholly liable was not plainly wrong. It was a conclusion reasonably and properly open to him on the evidence. The alternative claim for a 50:50 apportionment has no foundation. The Defendant relied on Mohamed bin Abdullah v Chah Hea Seng [1980] 2 MLJ 282, but equal division is reserved for the case in which the court, having weighed the evidence, is genuinely unable to resolve its doubts and the two versions stand evenly balanced. That is not this case : the First Plaintiff's version is inherently the more probable and is corroborated by the objective damage, while the Defendant's is not.

The principal complaint is the SCJ's decision to assess the pelvic injuries by itemisation rather than globally. The Defendant relied on Mahamad bin Mahamad Said & Anor v Perianyagam & Anor [1972] 1 MLJ 67, Tan Cheong Poh & Anor v Teoh Ah Keow [1995] 3 MLJ 89 and Tay Tong Chew & Anor v Abdul Rahman bin Haji Ahmad [1985] 1 MLJ 50 for the proposition that where several S/N HIepKv4FkywqrwoKh8aWw injuries are sustained simultaneously to the same part of the anatomy, the separate figures are no more than aids to a fair total and a single global award should be made to reflect the inevitable overlap. The SCJ itemised, relying on Arumugam a/l Marimuthu v Leong Ming Houng [2016] 2 PIR [14] and Kovalan a/l Rajoo v Hanif bin Muhamad Pauzi [2016] 2 PIR [36] for the view that distinct bony injuries may be valued separately even where adjacent.

These lines of authority are not, in my judgment, truly opposed. Itemisation is a permissible aid to assessment; what the authorities prohibit is the double-counting that results when separately-valued items in truth merge into a single composite disability, and what they require is that the Court stand back and test the aggregate. [See : Mahamad bin Mahamad Said; Tan Cheong Poh; Brown v Woodall [1995] PIQR Q36]. The method is therefore not the vice. The failure to apply the overlap principle and the stand-back check is. I do not disturb the SCJ's choice to itemise, but I subject the resulting aggregate to that check, which the SCJ did not adequately perform.

What the authorities do require, however, whatever the method, is that the Court stand back and ask whether the aggregate fairly compensates the totality of the injury without overcompensating it. [See : Brown v Woodall]. When that is done here, a difficulty emerges. The SCJ awarded the First Plaintiff separately, on top of the pelvic fractures, for stiffness and limitation of the hip, for an altered (limping) gait and for residual pain, each of which is a functional consequence of the very pelvic injury already compensated. To award for the fracture and again for its sequelae is to compensate twice for the same injury to the same part of the anatomy. [See : S/N HIepKv4FkywqrwoKh8aWw Wang Yong Cheng & Anor v Thaigarajan a/l Arumugam [2020] 1 PIR [13] and Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 3 MLJ 144].

I correct that duplication as follows. The award for the multiple pelvic fractures (RM93,600.00) is best understood as compensating the pelvic injury together with its functional sequelae, i.e. the hip stiffness, the limitation of movement, the altered gait and the associated pain. On that footing the separate awards for stiff right hip and limitation of movement (RM10,000.00), for limping gait (RM15,000.00) and for residual pain due to soft tissue damage and contracture (RM10,000.00) cannot stand alongside it, and are set aside.

Standing back, I test that composite against the Compendium and comparable awards. The Revised Compendium of Personal Injury Awards 2018 brackets multiple hip injuries with hip disabilities at RM43,000.00 - RM72,500.00 and the comparable multiple pelvic-ring awards relied on by the Defendant fall within or below that band, i.e. RM55,000.00 in Letchumanan a/p P Periasamy v Toh Choon Cheng & Anor [2022] 1 PIR [24], RM30,000.00 in Azwan bin Ghazali v Mohd Shamsul bin Mohd Razmi & Anor [2024] 1 PIR [5] (affirmed [2024] 1 PIR [1]), and the itemised sums in Nur Aliyah Kamila binti Abd Halim v Muhammad Syazwan Syakir bin Mohd Razman [2024] 2 PIR [18]. I also note that the upper end of the bracket is influenced by considerations particular to female plaintiffs (waist asymmetry and child-bearing) which do not arise here, the First Plaintiff being a man in his sixties whose fractures have united and healed on conservative treatment without significant residual disability.

Even so, the number and distinct sites of the five fractures, across the superior and inferior pubic rami, the anterior column and wall of the acetabulum and the ischium, place this injury at the severe end of the range and the Compendium is a guide and not a ceiling. I therefore affirm RM93,600.00 as the composite award for the pelvic injury and its functional sequelae.

Two further awards rest on no, or insufficient, evidence –

the award of RM10,000 for muscle wasting cannot stand. The latest and agreed expert report, that of Dr Jayamalar, records in terms that "there is no wasting". An award for a condition the agreed medical evidence says is absent is made on no evidential basis and is set aside; and

the award of RM5,000.00 for soft tissue injury to the right knee is likewise set aside: that injury was recorded only as "informed by the patient", was not found on clinical examination by either expert, was not noted in the initial hospital records and the knee's range of movement was recorded as normal. Causation by this accident was not established.

The remaining minor injuries, including soft tissue injury to the right shoulder (RM5,000.00) and the two abrasions (RM3,000.00 each), are distinct injuries, each within the Compendium range and not overlapping with the pelvic injury. Those awards are affirmed.

The submission that these be merged into a single global figure of RM5,000 (relying on Mohammad Amar Farhan bin Md Rashid & 3 ors v Hock Chuan Hin Transport Sdn Bhd & Anor [2024] 1 PIR [38] and Parthiba Kumar a/l Subramaniam v Amiruddin bin Biden [2025] 1 PIR [17]) is misplaced : those concerned injuries to a common site, whereas the shoulder, elbow and scapular abrasions are at different and unrelated sites with no overlap to discount.

The award of RM15,000.00 for osteoarthritis is reduced to RM10,000.00. Post-traumatic osteoarthritis is established and is a distinct condition (it also founds the claim for future surgery), but the award should reflect that it remains at an early stage with minimal symptoms and the recent trend of awards. The award of RM10,000.00 for pain and suffering for future surgery is reduced to RM5,000.00 in line with the current trend.

The Defendant pressed for RM5,000.00 on a series of recent awards at that level (TABs 30–34). Those are a useful guide, but each turned on minimal or early changes. Here the osteoarthritis is post-traumatic, founds the claim for future surgery and is more than nominal. RM10,000.00 reflects that distinction while respecting the downward trend; RM5,000.00 would understate a condition serious enough to ground provision for a hip replacement.

As to the Total Hip Replacement, the entitlement is affirmed. The assessment of damages must be made once and for all and the Court cannot defer the question until the osteoarthritis matures; the First Plaintiff’s age and the medical evidence make it proper to provide for the procedure now. The quantum, however, requires adjustment. S/N HIepKv4FkywqrwoKh8aWw The First Plaintiff received all of his treatment at a government hospital and the only government-hospital costing in evidence is that of Dr Jayamalar, namely about RM12,000.00. There being no evidential basis for a private costing, the award is recosted on the government figure and applying the same one-third discount for contingencies adopted by the SCJ, I assess it at RM8,000.00.

The award for physiotherapy is set aside, the latest medical evidence being that the First Plaintiff requires no further physiotherapy.

The agreed special damages of the First Plaintiff (RM3,163.00) are affirmed. The Second Plaintiff’s claim for the cost of repairing the motorcycle (RM1,613.00), proved through SP3 and the supporting invoice, is also affirmed. It was not seriously contested save as a consequence of liability. S/N HIepKv4FkywqrwoKh8aWw

In the result, the appeal is dismissed on liability and allowed in part on quantum. The First Plaintiff’s general damages are reduced from RM179,600.00 to RM119,600.00 and his future treatment award is reduced from RM22,666.66 to RM8,000.00. The awards are summarised below –

Revised schedule of damages – Multiple pelvic fractures (5 fractures, itemised less 10%) 93,600.00 Affirmed (as composite award for the pelvic injury and its functional sequelae) 93,600.00 Soft tissue injury, right shoulder 5,000.00 Affirmed 5,000.00 Small abrasion, left elbow 3,000.00 Affirmed 3,000.00 Small abrasion, right scapular region 3,000.00 Affirmed 3,000.00 Soft tissue injury, right knee 5,000.00 Set aside Nil S/N HIepKv4FkywqrwoKh8aWw (causation not proved) Osteoarthritis (post-traumatic) 15,000.00 Reduced 10,000.00 Residual pain (soft tissue damage and contracture) 10,000.00 Set aside (overlapping) Nil Stiff right hip / limitation of hip movement 10,000.00 Set aside (overlapping) Nil Muscle wasting 10,000.00 Set aside (no evidential basis) Nil Limping gait 15,000.00 Set aside (overlapping) Nil Pain and suffering for future surgery 10,000.00 Reduced 5,000.00 TOTAL - general damages 179,600.00 119,600.00 Future treatment - Total Hip Replacement 21,333.33 Affirmed in principle; recosted at government rate less 1/3 8,000.00 S/N HIepKv4FkywqrwoKh8aWw Future treatment - physiotherapy 1,333.33 Set aside (no longer required) Nil Special damages (First Plaintiff) - agreed items 3,163.00 Affirmed 3,163.00 Special damages (Second Plaintiff) - motorcycle repair 1,613.00 Affirmed 1,613.00

Interest is to run at the rates ordered below, recomputed on the revised sums –

on the special damages, at 2.5% per annum from the date of the accident (23 July 2022) to the date of judgment of the

(ii) on the general damages (excluding the RM5,000.00 awarded for pain and suffering for future surgery), at 5% per annum from the date of service of the writ to the date of judgment of the Sessions Court; and

(iii) on the total judgment sum, at 5% per annum from the date of judgment to the date of full realisation. S/N HIepKv4FkywqrwoKh8aWw

No interest is payable on the future treatment award. The orders of the Sessions Court are varied accordingly.

On costs, the appeal having failed on the principal issue of liability but succeeded substantially on quantum, I make no order as to the costs of the appeal. Dated : 18 Jun 2026 -signed- (Noradura binti Hamzah) Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the Appellant/Defendant : : Mustafa Cheng bin Abdullah Messrs. Taye & Co. Counsel for the Respondents/Plaintiffs : : Sharimilathevy a/p Santhirasekaranathan