Marentaran A/L Sevaperumal v Mohd Razali Bin Yusof (CA-12B-6-06/2025)

This appeal concerns solely the quantum of damages awarded by the learned Sessions Court Judge in respect of injuries sustained by the Appellant arising from a road traffic accident.

Liability is no longer in dispute. The sole issue before this Court is whether the various awards made by the learned Sessions Court Judge were so inadequate as to warrant appellate intervention.

Having considered the Record of Appeal, the medical evidence, the written and oral submissions of parties, the authorities cited, and the Grounds of Judgment of the learned Sessions Court Judge, I am unable to find any basis to interfere with the awards made. Accordingly, on 28 May 2026, I dismissed the appeal. These are my grounds.

The principles governing appellate intervention in the assessment of damages are well established.

The starting point remains the decision of the Federal Court in Tan Kuan Yau v Suhindrimani & Anor [1985] 2 MLJ 22 where the Court held: "The appeal court is slow, indeed disinclined, to interfere with the judge's findings merely because the appeal court thinks that if the case had been before it in the first instance a lesser amount would have been awarded. In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that this court should be convinced that the judge acted on some wrong principle of law or that the amount awarded was extremely high or so very small as to make it entirely an erroneous estimate of the damages to which the plaintiff is entitled."

It follows that the role of an appellate court is not to conduct a fresh assessment of damages simply because another figure might also have been reasonable.

The issue is not whether this Court would have awarded a different amount had it heard the matter at first instance. Rather, the question is whether the learned trial judge acted upon a wrong principle of law, failed to consider relevant evidence, considered irrelevant matters or arrived at an award that falls outside the permissible range of reasonable judicial assessment.

Unless one of these circumstances is established, appellate restraint must prevail.

The Appellant challenged the learned Sessions Court Judge's refusal to allow certain claims for special damages.

With respect, I found no merit in this complaint. It is trite that special damages must not only be specifically pleaded but must also be strictly proved.

The learned Sessions Court Judge found that the documents relied upon by the Appellant were contained in Part 3 of the Bundle of Documents and required proof through the testimony of appropriate witnesses. No such witnesses were called.

In the absence of proper proof, the learned Sessions Court Judge was entitled to conclude that the burden of proof had not been discharged.

I therefore found no basis to interfere with the decision relating to special damages.

The principal complaint advanced by the Appellant concerned the award of RM150,000.00 for severe head injury.

There was no dispute that the Appellant sustained a serious traumatic brain injury and recorded a Glasgow Coma Scale score of 3/15 upon admission.

However, the issue before the Court was not merely the severity of the original injury. The more important inquiry was the extent of permanent disability attributable to that injury.

In my judgment, this distinction lies at the heart of the present appeal.

The medical evidence established that the Appellant presently suffers from significant functional limitations. However, the evidence did not establish that all such limitations were attributable to the head injury.

The evidence of the Respondent's consultant neurosurgeon, Dr Ravi Krishnapillay, was particularly significant. He opined that: "It appears that his lack of mobility currently is due primarily to the local injury in the lower limb and it would be difficult to assess any contribution from his balance impairment due to his head injury."

That opinion was materially supported by the Respondent's orthopaedic expert, Professor Vivek, who testified that the Appellant was bedridden because of an ankylosed left hip resulting in a hip joint which was fixed and incapable of movement.

Significantly, the Appellant's own orthopaedic evidence acknowledged permanent weakness and stiffness of the left hip arising from fusion of the hip joint.

The cumulative effect of this evidence was that the Appellant's inability to ambulate was attributable substantially to the orthopaedic consequences of the accident rather than the neurological consequences. This distinction is important.

Where a plaintiff suffers multiple injuries arising from the same accident, the assessment of damages for a particular injury must be based upon the disability attributable to that injury and not upon the plaintiff's overall incapacity where that incapacity is substantially caused by other injuries.

Damages must compensate proven disability. They are not assessed merely by reference to the dramatic nature of the original trauma.

The medical evidence demonstrated that the principal residual effects attributable to the head injury were cognitive in nature, including impairment of memory, concentration and executive functioning.

At the same time, the evidence showed that the Appellant retained certain functional abilities, including the ability to feed himself and engage in basic communication.

The authorities relied upon by the Appellant involved plaintiffs whose neurological injuries themselves gave rise to the substantial functional disabilities complained of. The factual matrix in the present case is materially different because the evidence established that the Appellant's immobility stemmed primarily from orthopaedic injuries.

Conversely, the authorities considered by the learned Sessions Court Judge, including Siti Norazreen binti Abdul Hamid v Lai Chin Lin [2024] 1 PIR 40 and Nur Nabila Izah binti Baharuddin v Tuan Mohamad Syamil [2024] 2 PIR 55, provide reasonable comparators for the neurological deficits established in the present case.

Having regard to the medical evidence and the comparable authorities, I am unable to conclude that the award of RM150,000.00 was manifestly low.

In my view, the learned Sessions Court Judge properly appreciated both the severity of the original injury and the extent of disability actually attributable to that injury.

The Appellant further challenged the awards relating to the various orthopaedic injuries, including the left hip injury, right femur fracture, tibial plateau fracture, finger fracture and associated physical injuries. However, having reviewed the evidence, I find no reason to interfere.

The learned Sessions Court Judge undertook a detailed evaluation of the relevant medical reports, the degree of healing achieved, the residual disabilities that remained and the comparable authorities relied upon by parties.

In relation to the right femur fracture, both experts agreed that the fracture had united without shortening.

Similarly, the evidence showed substantial healing of the tibial plateau fracture and other skeletal injuries.

The awards made by the learned Sessions Court Judge were supported by medical evidence and were consistent with the authorities and the Compendium of Personal Injury Awards referred to during the proceedings.

More importantly, none of the awards can properly be characterised as manifestly low.

An appellate court should be cautious not to engage in a process of recalculating individual awards merely because slightly higher figures may also have been defensible.

The law requires demonstration of a substantial error of assessment. Mere disagreement with the figures selected by the trial judge is insufficient.

Having considered the evidence as a whole, I find that the awards made for the orthopaedic and associated injuries remain well within the permissible range of reasonable judicial discretion.

The Appellant also challenged the award for future nursing care. The learned Sessions Court Judge awarded RM1,000.00 per month using a multiplier of 13 years.

The issue before this Court is not whether a higher figure could have been awarded. The issue is whether the figure actually awarded falls outside the range of reasonable judicial assessment. In my judgment, it does not.

The Respondent's orthopaedic expert gave evidence that the Appellant would benefit from total hip replacement surgery and that, following rehabilitation, he would likely regain mobility and become capable of sedentary employment.

The evidence further suggested that any prolonged dependence upon others for mobility and daily functioning was not necessarily permanent.

Consequently, the assumption that full-time nursing care would remain necessary throughout the entire multiplier period was far from certain.

Equally significant was the absence of evidence demonstrating that the Appellant or his family intended to employ a foreign domestic helper despite the passage of several years since the accident.

In Ang Yew Cheng v Ang Siang Hock [2015] 10 CLJ 157, the Court observed that claims based upon the cost of employing a foreign maid cannot be justified in the absence of evidence that such employment was contemplated or intended. The same consideration arises here.

Furthermore, the Appellant's own expert accepted that care could be provided by a family member or any physically capable adult and need not necessarily involve the employment of a foreign domestic helper.

Viewed as a whole, the learned Sessions Court Judge adopted a balanced approach which recognised the Appellant's need for future care while avoiding the risk of overcompensation.

I therefore find no basis for appellate intervention.

This appeal illustrates the importance of distinguishing between injury and disability in the assessment of personal injury damages.

A severe injury does not automatically translate into a corresponding level of compensable disability.

The Court must identify, as accurately as the evidence permits, the actual source of the plaintiff's present incapacity and ensure that compensation corresponds to the disability proved to flow from the particular injury under consideration.

In the present case, while the Appellant undoubtedly suffered a severe head injury, the medical evidence established that his present immobility was substantially attributable to the orthopaedic consequences of the accident, particularly the ankylosed left hip.

The learned Sessions Court Judge was therefore entitled to assess the neurological and orthopaedic consequences separately and to avoid attributing the entirety of the Appellant's disability to the head injury alone.

Such an approach is consistent with the fundamental compensatory principle that damages are awarded for proven loss and proven disability and not merely for the seriousness of the original trauma.

Having reviewed the entire Record of Appeal, I am satisfied that the learned Sessions Court Judge correctly directed herself on the applicable law, carefully evaluated the medical evidence, considered the relevant authorities and arrived at awards which fall comfortably within the range of reasonable judicial discretion.

I find no error of principle, no misdirection and no award that can properly be described as manifestly low. The appeal therefore fails.

Accordingly, the appeal is dismissed and the decision of the Sessions Court is affirmed in its entirety.

Costs of RM15,000.00 are awarded to the Respondent, subject to allocatur. Dated: 8 June 2026 (SAMRY BIN MASRI) Judicial Commisioner High Court Kuantan Counsel for the Appellant : Tetuan Sivaruben & Co Peguam Bela & Peguam Cara 8-12-13, Menara Mutiara Bangsar Jalan Liku Off Jalan Riong, Bangsar 59100 Kuala Lumpur Counsel for the : Tetuan Shan & Su Respondant Peguam Bela & Peguam Cara No. N26, Tingkat 1 Jalan Haji Ahmad 14 Sri Pahang Business Centre 25300 Kuantan Pahang Darul Makmur