Mohammad Firdaus Bin Ahmad Hussin v Shanmugam A/L Kandasamy (BA-12B-7-01/2024)

This is an appeal by the Appellant/Defendant against the decision of the learned Sessions Court Judge (SCJ) delivered on 3 January 2024 in Sepang Sessions Court.

The appeal arose from a road traffic accident on 15 May 2019 involving the Respondent/Plaintiff’s motorcycle and the Appellant’s motorcycle. The learned SCJ found the Appellant wholly liable for the accident and awarded the Respondent damages under various heads.

Dissatisfied with that decision, the Appellant filed the present appeal against both the finding on liability and the quantum. The Respondent, on the other hand, also filed a cross-appeal on the issue of quantum.

The Appellant's core complaint was that the learned SCJ had erred in holding the Appellant 100% liable for the accident and in awarding certain sums under general and special damages.

Having perused the record of appeal, the grounds of judgment of the learned SCJ, and the written and oral submissions of all parties, I allowed the Appellant’s appeal in part and dismissed the Respondent’s cross-appeal.

The reasons for my decision are set out below.

For ease of reference, the parties shall be referred to as they were in the proceedings below, namely the Appellant as the Defendant and the Respondent as the Plaintiff.

The Plaintiff brought a claim against the Defendant for general and special damages arising from a road accident on 15 May 2019.

On 15 May 2019, at approximately 8.15 a.m., the Plaintiff was riding his motorcycle, bearing registration number BPQ 9570, along Jalan Klang–Banting–Port Dickson towards Klang. At KM 24 of the road, the motorcycle bearing registration number WTN 136, ridden by the Defendant, collided with the Plaintiff's motorcycle whilst the Defendant was in the course of overtaking from the left. As a result of the collision, the Plaintiff sustained serious injuries, including the amputation of his right hand.

The matter was heard before the learned SCJ, during which four

On 3 January 2024, after considering the oral and documentary evidence adduced by both parties and their respective written and oral submissions, the learned SCJ found the Defendant solely liable for the accident.

The Defendant had been issued a summons under Rule 5 of the Road Traffic Rules LNN 166/59 for overtaking on the left, and duly paid the fine.

The learned SCJ’s decision was as follows: LIABILITY That the Defendant was 100% liable for the accident. QUANTUM i. General Damages

(a) Crush injury over the right upper limb causing below elbow amputation RM 70,000.00

(b) Left chronic suppurative otitis media and left severe mixed hearing loss & right mild to moderate sensorineural hearing loss RM 40,000.00

(c) Cerebral concussion RM 6,000.00

(d) Deep laceration wound over the left temporoparietal region extending to the parietal region & laceration wound over left pinna RM 5,000.00

(e) Abrasion wound over left elbow RM 5,000.00

(f) Wasting of muscles RM 5,000.00

(g) Permanent hypertrophic scar RM 10,000.00 (d, e, f, g total subject to a 10% deduction for overlapping)

(h) Post-traumatic lumbosacral spondylosis RM 20,000.00

(i) Post-traumatic sympathetic dystrophy RM 8,000.00

(j) Pain & Suffering for future operation RM 10,000.00 ii. Special Damages

(a) Item (A) cost for family travelling to Visit Plaintiff at Hospital RM 300.00

(b) Item (B) cost for Plaintiff's trip to seek dressing/outpatient treatment RM 5,450.00

(c) Items (C), (G), (H) & (I) Withdrawn

(d) Item (D) Hospital bills RM 3,387.00

(e) Item (E) Under Costs

(f) Item (F) costs of future operation: -

(i) Cost of Ear Surgery RM 15,000.00

(g) Item (J) Loss of earnings (Agreed) RM 16,200.00

(h) Costs of travelling to maintain Hearing aid Disallowed Interest 5% for General Damages Interest 2.5% for Special damages and costs as pleaded. THE LAW ON APPELLATE INTERVENTION

I am reminded that an Appellate Court should be slow in interfering with a finding of fact by a trial court (see: Sornaratnam & Anor v Ramalingam [1981] 1 MLJ 24; the Privy Council case of Tan Chow Soo v Ratna Ammal [1969] 2 MLJ 49; China Airlines Ltd. v Maltran Air Corp Sdn. Bhd. (formerly known as Maltran Air Services Corp Sdn. Bhd.) and another appeal [1996] 2 MLJ 517; Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209 at p. 211.

As explained in Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395, an appellate court will intervene only where the trial court has erred in its judicial reasoning, misdirected itself on the facts or the law, or reached a conclusion that is plainly unsustainable. A mere difference of opinion is insufficient.

An assessment of damages is more an exercise of discretion than an ordinary act of decision; the appellate court is particularly slow to reverse the trial judge’s findings on the amount of damages. Before intervening in an award of damages, the Court must be satisfied that the judge has acted on a wrong principle of law, has misapprehended the facts, or has, for other reasons, made a wholly erroneous estimate of the damage suffered.

The principles governing an appellate court’s interference with an award of damages are well-established. In Mahmod bin Kailan v Goh Seng Choon & Anor [1976] 2 MLJ 239, the Federal Court, adopting the approach in Davies v Powell Duffryn Associated Collieries Ltd and Flint v Lovell, held that the assessment of damages is essentially an exercise of judicial discretion. Consequently, an appellate court is particularly slow to interfere with a trial judge’s award on quantum. Interference is justified only where it is shown that the trial judge acted on a wrong principle of law, misapprehended the facts, or, for those or other reasons, made a wholly erroneous estimate of the damages. It is not sufficient that the appellate court might have preferred a different figure; the scale must weigh heavily against the impugned award before interference is warranted.

This position was reaffirmed by the Federal Court in Topaiwah v Salleh [1968] 1 MLJ 284, where it was emphasised that damages are a matter of assessment, not calculation. An appellate court should not disturb an award merely because it would have awarded a lesser or greater sum, and may do so only if the amount awarded is so extremely high or so very low as to constitute an entirely erroneous estimate of the damage suffered.

In more recent authority, the Federal Court in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 clarified that a decision may be regarded as “plainly wrong” where there was no or insufficient judicial appreciation of the evidence; a demonstrable misunderstanding of the evidence; a failure to consider relevant evidence; or a material error of law, such that the decision could not reasonably be explained or justified. FINDINGS OF THE COURT

The Defendant contended that liability ought to be apportioned equally between the parties at 50:50, arguing that the learned SCJ erred by failing to consider and give effect to the Plaintiff's contributory negligence.

The material facts are not in significant dispute. Both parties were motorcyclists travelling in the same direction along Jalan Klang–Banting–Port Dickson towards Klang.

The Plaintiff testified that at the material time he was travelling on the left side of the road and did not observe any lorry in the vicinity. According to the Plaintiff, the Defendant had overtaken him from the left and, in doing so, collided with him, causing both of them to fall to the left side of the road. Plaintiff testified that: “m/sikal No. WTN 136 yang ditunggang oleh Defendan dengan begitu laju dan cuai terus melanggar Plaintif serta m/ sikalnya apabila pintas Plaintif dari arah belakang lalu melanggar Plaintif dan menyebabkan Plaintif terjatuh ke atas jalan dan mengalami kecederaan.”

The Defendant denied that the collision occurred at the rear of the respective vehicles. The Defendant's case was that he had overtaken the Plaintiff on the Plaintiff's left side and, in the course of doing so, the handlebars of both motorcycles suddenly grazed each other (tergeser), resulting in the accident.

The Defendant’s account was materially different. In his evidence-in-chief (EIC), at Q&A No. 3, the Appellant gave the following evidence: “Pada 15/5/2019, jam lebih kurang 8.15 pagi saya menunggang motorsikal WTN 136 Jenis Modenas MV2 dari arah Bandar Mahkota, Banting, dan menghala ke arah Telok Panglima Garang melalui Jalan Klang-Banting-Jenjarom, Selangor. Semasa perjalanan kelajuan saya lebih kurang 70-80 km p/jam. Pada masa itu saya berada di lorong kiri, dan pada masa yang sama dihadapan saya ada sebuah motor Trailer. Kemudian saya memberi isyarat kanan dan selepas memastikan keadaan jalan selamat, saya pun memotong kanan motor Trailer. Pada masa itu, saya nampak ada sebuah motorsikal No. BPQ 9570 Honda Wave di lorong kanan. Pada masa itu, saya meneruskan perjalanan saya tengah antara /motor Trailer itu dan motorsikal tersebut, tiba- tiba motorsikal tersebut menghampiri saya lalu menghimpit saya di kanan saya lalu pergeseran berlaku antara motorsikal kami. Kemudian handle motorsikal saya dan handle motorsikal BPQ 9570 bersangkut. Saya tidak dapat kawal motorsikal saya lalu kami berdua jatuh di bahu jalan kiri hadapan.”

According to the Defendant’s own account, the following critical facts emerge: (i) he found himself in the space between the motor trailer and the Respondent's motorcycle; (ii) he alleged that the Respondent's motorcycle approached and pressed against him from the right (menghimpit); (iii) the handlebars of both motorcycles became interlocked (bersangkut); and (iv) both parties fell to the left of the road (bahu jalan kiri hadapan).

Notwithstanding the competing accounts, one point of common ground emerged from the totality of the evidence: both parties agreed that the collision did not involve a rear-end impact between the vehicles. Rather, the accident occurred when the Defendant overtook the Plaintiff on the Plaintiff's left side, while manoeuvring between the motor trailer and the Plaintiff's motorcycle, at which point the two motorcycles came into contact. The central question for determination was therefore a narrow but critical one: which party's motorcycle collided with the other, and whose conduct caused the collision?

I have carefully evaluated the testimonies of the Plaintiff, the Defendant, and the lorry driver. I note at the outset that there was no independent eyewitness to the accident in the conventional sense, and that the accounts of the Plaintiff and the Defendant are contradictory. However, the Court has the benefit of the lorry driver's testimony, who, as an independent witness called by the Defendant himself, carries particular weight. Having regard to the totality of the evidence, the Court's task is to determine which version of events is more probable. Assessment of the evidence by the Plaintiff, Defendant and the lorry driver

The Plaintiff testified that he was riding on the left side of the road when the Appellant suddenly overtook him from the left, causing the collision. Both motorcycles then fell to the left side of the road.

The Defendant testified that he was travelling between the motor trailer and the Plaintiff when the Plaintiff’s motorcycle moved towards him and pressed (himpit) against him. He maintained that both motorcycles fell to the left side of the road (bahu jalan kiri hadapan).

The lorry driver (SD5) is an independent witness with no apparent interest in the outcome of the proceedings. His evidence is therefore entitled to significant weight. He testified that he was travelling in lane CD and said as follows: J: “Sebelum kemalangan, saya tidak nampak kedua-dua motorsikal tersebut. Tiba-tiba saya dengar bunyi di tepi kanan Motorlori saya”. S: Selepas dengar bunyi adakah anda nampak apa-apa? J: Saya nampak dua Motorsikal jatuh didepan sebelah kanan saya. Selepas itu saya sempat brek dan berhenti di lorong saya. Saya keluar dari Motorlori saya dan nampak seorang Melayu dengan Motorsikal didepan lorong kanan dan juga sebuah Motorsikal penunggang orang India juga jatuh di lorong kanan. Saya menunggu di tempat kejadian sehingga Ambulan sampai”.

When questioned further during the examination, the lorry driver consistently maintained that both motorcyclists fell on the right side of the road, in front of him: “Dia dua-dua jatuh sebelah kanan juga lah. Depan saya dan jatuh sebelah kanan.” … “Depan lorry saya, kepala sini kan, tepi depan sebelah kanan Lorong kanan” … “Tepi kanan, depan saya” … “Lorong kanan”

The lorry driver maintained this account consistently throughout his testimony, including on re-examination, and expressly denied that both parties had fallen on the left side of the road. He further confirmed that he remained at the scene until the ambulance arrived.

I now turn to explain why the Defendant’s account of events is, on a balance of probabilities, irreconcilable with the totality of the evidence.

The Defendant testified that he was positioned between the motor trailer and the Plaintiff’s motorcycle, and that the Plaintiff’s motorcycle moved towards him and "pressed" (himpit) him from the right. He further stated that both motorcycles ultimately fell to the left of the road.

If the Defendant’s version were correct, the following would necessarily follow at the moment of collision: the Defendant was between the lorry (to his left) and the Plaintiff (to his right). When the Plaintiff’s motorcycle allegedly pressed (himpit) against the Defendant from the right with sufficient force to cause both handlebars to interlock (bersangkut) and to make both parties fall, the momentum would have carried both motorcycles to the left, directly into the path of the lorry, which was travelling alongside them.

Yet this did not happen. The lorry was not involved in the collision, and there was no impact with it. This alone renders the Defendant’s account internally contradictory.

Furthermore, the lorry driver's unequivocal evidence, given on behalf of the Defendant, was that both motorcycles fell to the right side of the road in front of him. This is wholly inconsistent with the Defendant’s claim that they fell to the left.

The only version of events that is consistent with the independent evidence of the lorry driver and coherent with the laws of physics is that advanced by the Plaintiff: The Defendant’s motorcycle collided with the Plaintiff from the Plaintiff’s left as the Defendant was overtaking (mencelah dan memintas), causing both of them to fall to the right side of the road.

Moreover, the physical evidence further corroborates the Plaintiff’s account. The Investigating Officer's evidence-in-chief revealed the following damage to the motorcycles: “Motorsikal WTN mengalami handle kanan bengkok, brek tangan kanan bengkok dan lampu depan calar. Motorsikal BPQ – bahagian kanan pecah, cover plastik pecah”.

The damage sustained by both motorcycles was concentrated on the right side. This is entirely consistent with a scenario in which the Defendant’s motorcycle, travelling on the Plaintiff’s left, collided with the Plaintiff, causing a right-side impact. It is equally consistent with both motorcycles thereafter falling to the right side of the road.

The pattern of physical damage provides independent, objective corroboration of the Plaintiff’s account and is inconsistent with the Defendant’s account of events.

The Defendant raised several grounds of appeal on liability, including that: (i) the learned SCJ failed to assess the inconsistency between the Plaintiff’s pleaded case and his oral evidence; (ii) the learned SCJ failed to assess the Police Sketch Plan; (iii) the learned SCJ failed to consider the Plaintiff’s denial of the presence of Motor Lorry BJL 5230; and (iv) the learned SCJ failed to consider the Plaintiff’s contributory negligence. I have carefully considered all of these grounds and am not persuaded that any of them discloses a reversible error.

In the circumstances, I find no merit in the Defendant's contention that the learned SCJ erred in his findings on liability. The learned SCJ's conclusion that the accident was caused solely by the Defendant's negligence and that the Defendant bears 100% liability was well-founded on the evidence and is one I affirm. The appeal on liability is accordingly dismissed.

At the outset of the hearing of this appeal, counsel for both parties confirmed that the following items of general damages, as awarded by the learned SCJ, are no longer in dispute:

(a) Crush injury over the right upper limb causing below-elbow amputation - the learned SCJ awarded RM70,000.00. Both the Defendant's appeal and the Plaintiff's cross-appeal in respect of this item were withdrawn, and the award stands.

(b) Cerebral concussion - the learned SCJ awarded RM6,000.00. The Defendant withdrew his appeal in respect of this item, and the award stands.

(c)

(i) Deep laceration wound over the left temporoparietal region extending to the parietal region & laceration wound over the left pinna, and (ii) Abrasion wound over the left elbow - the learned SCJ awarded RM10,000.00 in total. The Defendant withdrew his appeal in respect of this item, and the award stands.

(d) Wasting of muscles - the learned SCJ awarded RM5,000.00. The Defendant withdrew his appeal in respect of this item, and the award stands.

(e) Scars - the learned SCJ awarded RM10,000.00. The Defendant withdrew his appeal in respect of this item, and the award stands.

The above awards are therefore affirmed without further consideration.

I now turn to consider the items of general and special damages that remain in dispute between the parties. Left Chronic Suppurative otitis media, left severe mixed hearing loss, and right mild to moderate sensorineural hearing loss.

The Defendant has appealed against the following award on the basis that it ought to be reduced, whilst the Plaintiff has filed a cross-appeal in respect of the same, seeking an increase in the sum awarded.

Before the learned SCJ, the Plaintiff had claimed RM70,000.00, while the Defendant had claimed RM12,000.00, and the learned SCJ awarded RM40,000.00.

I have considered the written submissions of both parties and the evidence on record. Both parties’ ENT specialists confirmed the Plaintiff’s hearing impairment. Dr Vijay Soni (Plaintiff’s specialist) recorded left moderate-to-severe mixed hearing loss and right mild hearing loss at 2K and 8K, as supported by both audiogram and auditory brainstem response (ABR) testing.

Prof. Dato' Dr Prepageran (Defendant’s specialist) likewise confirmed, through his own PTA and Brainstem Response Audiometry, a left mixed hearing loss with severe impairment and normal hearing in the right ear.

The principal divergence among the specialists concerned the right ear, with the objective audiological tests consistently recording some degree of right-sided impairment.

The Defendant contended that the award ought to be reduced to RM12,000.00, relying on the Plaintiff’s admission during cross-examination that he did not suffer hearing loss in the right ear, and on the HTAR Klang report, which recorded a history of on-and-off left ear discharge before the accident. I am not persuaded by either ground. The Plaintiff’s subjective account of his hearing condition does not displace the objective findings of the audiological assessments.

Regarding the pre-existing condition, Dr Vijay Soni's report expressly stated that the Plaintiff had no prior ear disease. The learned SCJ, having had the benefit of evaluating the evidence at trial, accepted that the hearing impairment was attributable to the accident. No basis has been shown to disturb that finding.

On the question of the adverse inference sought by the Plaintiff’s Counsel under section 114(g) of the Evidence Act 1950 arising from Dr Prepageran’s failure to append his underlying audiological test results, I decline to draw that inference. Both parties had agreed by correspondence to admit Dr Prepageran’s report, subject to submissions. Having agreed to the report in its entirety, it is not open to the Plaintiff’s Counsel to subsequently assert deficiencies in the same report as a basis for an adverse inference. The threshold under section 114(g) requires the withholding or suppression of evidence, and a mere failure to produce supporting documents in respect of an agreed report does not meet that threshold.

On the quantum, the award of RM40,000.00 falls comfortably within the RM36,000.00 to RM55,000.00 range suggested by the Revised Compendium of Personal Injury Awards (2018) for partial loss of hearing in both ears. It is consistent with comparable authorities, including Mohamad Zulkefli Hamzah & Satu Lagi lwn Fatimah Sham [2016] MLRHU 1048 (bilateral hearing loss - RM40,000.00) and Mohammad Shahrul Edry Mohd Darus & Satu Lagi lwn Sharmilliah Mohammad [2015] PILRU 38 (moderate bilateral hearing loss – RM40,000.00). It appropriately recognises the severity of the left ear injury whilst accounting for the comparatively lesser degree of right ear impairment.

The Plaintiff’s cross-appeal for an increase to RM70,000.00 is not made out. The case of Mohd Syukor Mohd Rasip lwn Nur Diana Ismail & Satu Lagi [2019] PILRU 10, relied on by the Plaintiff, involved more severe bilateral hearing loss (75% in the right ear and 50% in the left) and is not directly comparable to the present case.

This Court finds that the award of RM40,000.00 is neither so inordinately low as to warrant the Court's intervention on the Plaintiff’s cross-appeal nor so inordinately high as to warrant a reduction on the Defendant’s appeal.

Therefore, the award of RM40,000.00 for Left Chronic Suppurative Otitis Media, Left Severe Mixed Hearing Loss and Right Mild to Moderate Sensorineural Hearing Loss is affirmed. Both the Defendant's appeal and the Plaintiff's cross-appeal in relation to this item are dismissed. Post-Traumatic Lumbosacral Spondylosis

Before the learned SCJ, the Plaintiff’s submissions were RM28,000.00, and the Defendant’s submission was to reject the claim. The learned SCJ awarded RM20,000.00.

The Plaintiff's orthopaedic specialist, Dr Suntharalingam, diagnosed the Plaintiff with Post-Traumatic Lumbosacral Spondylosis and recorded the following clinical findings in his report: “Degenerative changes noted on the lumbosacral spine (Posttraumatic lumbosacral spondylosis)” “Tenderness on the lower back on palpation” “Straight leg raising of both legs is reduced” “Spine movements are limited in all directions”

The Defendant's orthopaedic specialist, Dr K.S. Dhillon, disputed this diagnosis. In his report dated 29 January 2021, Dr K.S. Dhillon found the lumbar spine examination to be normal, with a full range of motion, no tenderness, and no neurological deficit. He was of the opinion that it was not possible for the Plaintiff to develop post-traumatic lumbosacral spondylosis merely nine months after a soft tissue injury to the lumbar spine. He further noted that the Plaintiff did not complain of low back pain during the examination.

The Defendant submitted that the award ought to be rejected entirely on the grounds that: (i) none of the initial medical reports from Hospital Banting, HTAR Klang or Klinik Berjaya Park mentioned back pain or spinal injury; (ii) Dr Suntharalingam’s diagnosis was raised only approximately eight months after the accident; and (iii) the Defendant’s specialist’s finding of a normal lumbar spine was consistent with the absence of any contemporaneous complaint of back pain.

I have carefully considered the competing expert opinions. It is correct that the initial medical reports did not record any complaint of back pain. However, this must be viewed in context; the Plaintiff had sustained a devastating amputation injury to his right upper limb, which necessarily commanded the primary focus of all medical attention in the immediate aftermath of the accident. The absence of a recorded complaint of back pain in the early reports does not, in my judgment, conclusively negate the development of a post-traumatic spinal condition that subsequently manifested and was formally diagnosed at a later stage of treatment.

Further, the Defendant’s submission that the learned SCJ completely disregarded Dr K.S. Dhillon’s report is not borne out. The learned SCJ considered both expert opinions and exercised his judgment in preferring Dr Suntharalingam’s evidence. There is no basis for me to conclude that this preference was plainly wrong.

The learned SCJ's award of RM20,000.00 is also supported by comparable authorities, including Tham Goy Chee lwnTan Lai Hoon & Satu Lagi [2014] 5 LNS 1 (lumbar spondylosis — RM20,000.00) and Shalan Bin Abdullah v Chuah Tiong Lin & Anor [2010] 1 PIR (44) (spondylosis — RM18,000.00), both decided several years before the present case.

Therefore, the Defendant's appeal in respect of this item is dismissed. The award of RM20,000.00 for Post-Traumatic Lumbosacral Spondylosis is affirmed. Post-Traumatic Sympathetic Dystrophy

At the Court below, the Plaintiff submitted for RM15,000.00, and the Defendant submitted for the Court to reject the claim. The learned SCJ awarded RM8000.00.

The Plaintiff’s orthopaedic specialist, Dr Suntharalingam, diagnosed the Plaintiff with Post-Traumatic Sympathetic Dystrophy resulting from the right upper-limb amputation. In his report, Dr Suntharalingam recorded the Plaintiff's complaint as follows: “Pain on the right amputation stump worst during the cold weather.”

Further, Dr Suntharalingam’s diagnosis and explanation of this condition were as follows: "The pain on the right amputation stump worst during the cold weather is due to Posttraumatic Sympathetic Dystrophy (a nervous response to injury resulting in pain and swelling exaggerated in the cold). This condition is usually permanent."

The Defendant’s orthopaedic specialist, Dr K.S. Dhillon, disputed the diagnosis on the basis that there was “no clinical evidence of sympathetic dystrophy”. In his supplementary report dated 4 March 2022, Dr K.S. Dhillon explained that sympathetic dystrophy requires objective clinical signs, including vasomotor or sudomotor disturbances, oedema, stiffness with loss of joint motion, and autonomic disturbances. None of these were present upon his examination of the Plaintiff.

The Defendant submitted that the learned SCJ erred by disregarding Dr K.S. Dhillon’s detailed clinical rebuttal and by awarding RM8000.00 for a condition that was not clinically established.

I am not persuaded that the learned SCJ erred. The Plaintiff consistently complained of pain at the right amputation stump, which worsened in cold weather. This complaint was first recorded in Dr Suntharalingam’s report and was maintained throughout the proceedings. While Dr K.S. Dhillon’s report set out the clinical criteria for a diagnosis of sympathetic dystrophy in some detail, the absence of objective signs he noted must be weighed against the fact that his examination was conducted at a single point in time. The Plaintiff’s subjective and persistent complaints of cold-exacerbated stump pain, arising directly from the amputation caused by the Defendant’s negligence, provided a sufficient basis for the learned SCJ to accept Dr Suntharalingam’s diagnosis.

The award of RM8000.00 is consistent with comparable authorities. In Tan Chit Cuang & Satu Lagi lwn Chua Chu Hua [2015] 1 LNS 1302, the High Court affirmed an award of RM10,000.00 for post-traumatic sympathetic dystrophy. In Gunalan Chandakesan & Anor v Tamil Arusu Velu [2014] 1 LNS 928, the High Court allowed RM10,000.00 for the same condition, noting that the Plaintiff's complaint of worsening pain in cold weather was a recognised nervous response to injury, resulting in pain and swelling that were exaggerated in the cold.

Therefore, this Court finds that the award of RM8000.00 by the learned SCJ falls within the acceptable range and is not manifestly excessive.

The Defendant’s appeal in respect of this item is dismissed. The award of RM 8000.00 for Post-Traumatic Sympathetic Dystrophy is upheld. Pain and suffering for future operation.

This item concerns compensation for the pain and suffering which the Plaintiff will necessarily endure as a result of a future surgical procedure on his left ear. It is well established that a Plaintiff is entitled to compensation not only for pain and suffering already experienced but also for that which he will be subjected to in the course of future medical treatment necessitated by his injuries.

Relevant authorities include Ahmad Basit Suri lwn Muhamad Hafizul Abdul Safari & Satu Lagi [2016] 5 LNS 44 (pain and suffering for a future operation — RM10,000.00) and Mohamad Qaddafi Tajudin v Low Kin Foong & 2 Ors (Wct Engineering Bhd) – Third Party [2012] 2 PR [19] (pain and suffering for the future removal of plating — RM 7000.00).

The recommendation for future surgery in this case rests on a particularly strong evidentiary foundation; it is supported by both parties’ ENT specialists, albeit expressed in somewhat different terms.

The Plaintiff's ENT specialist, Dr Vijay Soni of KPJ Selangor Specialist Hospital, stated in his report dated 7 October 2020 as follows: “Mr Shanmugam with no previous medical problems or ear disease has developed a left ear drum perforation as a result of the injuries sustained in the alleged motor vehicle accident on 15/05/19. This left perforated drum and accompanying ear infections have resulted in a moderate to severe mixed hearing loss. He will benefit from surgery to repair the ear drum. The cost of the surgery is about RM 15,000.00. If left untreated, his hearing on the left could worsen” [emphasis added]

The Defendant's own ENT specialist, Prof. Dato’ Dr Prepageran of University Malaya Specialist Centre, in his report dated 15 February 2021, likewise acknowledged the surgical option in the following terms: “If he requires both hearing for future occupation and social functioning, a trial hearing aid should be tried. Hearing aid cost of around RM 1,500-5,000 with maintenance of RM 50 monthly and hearing aid may need to be changed every 5 years depending on the usage. He may benefit from tympanoplasty and ossiculoplasty costing around RM 15,000." [emphasis added]

It is therefore common ground between the ENT specialists of both parties that the Plaintiff stands to benefit from surgical intervention in the form of tympanoplasty and ossiculoplasty on the left ear. Dr Vijay Soni expressed this unequivocally, whilst Dr Prepageran, though framing the recommendation in qualified terms, nonetheless acknowledged that surgical intervention was a viable and beneficial course of treatment. The convergence of expert opinion from both sides on the suitability of surgery provides a sound and unimpeachable foundation for this award.

As regards quantum, the learned SCJ awarded RM10,000.00, despite the Plaintiff’s submission of RM15,000.00. Having regard to the comparable authorities and the nature of the procedure involved, I find the award of RM10,000.00 to be fair, measured and adequately supported. The Defendant's appeal against this item is dismissed.

The award of RM10,000.00 for Pain and Suffering for Future Operation is affirmed. For completeness, I also affirm the learned SCJ's award of RM15,000.00 for the cost of future ear surgery. HEARING AID-RELATED ITEMS — ITEM 4, ITEM 5 AND ITEM 6 OF THE SCJ'S GROUNDS OF JUDGMENT (PAGE 23) – THE

The three items in question, as set out in the learned SCJ’s Grounds of Judgment at page 23, are as follows: “Item 4 — Kos alat bantu pendengaran-RM 16,250.00 Item 5 — Kos penyelenggaraan alat bantu pendengaran-RM12,6000.00 Item 6 — Kos perjalanan penyelenggaraan alat bantu pendengaran-RM37,800.00”

I now turn to consider Items 4, 5 and 6, as set out on page 23 of the learned SCJ’s Grounds of Judgment, being the cost of a hearing aid, the cost of maintenance of a hearing aid, and the cost of travel for the maintenance of the hearing aid, respectively.

At the outset, I note that a careful perusal of the Order of Court dated 3 January 2024 reveals that these three items were not reflected in the sealed order. The Order, which constitutes the authoritative expression of the Court’s decision and is the operative document for enforcement purposes, does not include these awards. The Grounds of Judgment’s reference to these items at page 23 is therefore inconsistent with the Order as extracted, and to the extent that any party sought to rely on those passages in the Grounds of Judgment as the basis for a subsisting award, that reliance is misconceived.

In any event, I have independently considered the evidential basis for these three items and find that they ought not to have been granted. My reasons are as follows.

The medical evidence established that the Plaintiff’s right ear sustained mild-to-moderate sensorineural hearing loss. Critically, neither Dr Vijay Soni nor Prof. Dato' Dr Prepageran recommended that the Plaintiff require a hearing aid specifically for the right ear. Dr Vijay Soni's report was directed principally to the left ear condition and recommended surgery for the left eardrum perforation. Dr Prepageran, whilst mentioning a hearing aid in his report, did so in the context of the left ear impairment and framed it as an alternative to surgery, not as a standalone recommendation for the right ear.

As regards the left ear, both specialists agreed that surgical intervention in the form of tympanoplasty and ossiculoplasty was the appropriate and recommended course of treatment. Dr Vijay Soni stated unequivocally that the Plaintiff “will benefit from surgery to repair the eardrum” and warned that, if left untreated, his hearing on the left could worsen. Dr Prepageran similarly acknowledged the surgical option. Where the recommended treatment for the left ear is surgery, and the cost of that surgery has been separately claimed and considered as a special damage item, the additional award of a hearing aid, which serves as an alternative to rather than a complement to the surgical procedure, is inconsistent with the overall award.

In those circumstances, the award of a hearing aid, its maintenance costs, and the associated travelling costs for maintenance cannot be sustained on the evidence. No specialist for either party recommended a hearing aid as a necessary adjunct to the surgical procedure recommended for the left ear, nor was there any credible evidence that a hearing aid was medically indicated for the right ear, given the mild nature of the right-sided hearing loss and the absence of any treatment recommendation for that ear.

Accordingly, Items 4, 5 and 6, as set out on page 23 of the learned SCJ's Grounds of Judgment, namely the cost of the hearing aid (RM16,250.00), the cost of maintenance of the hearing aid (RM12,600.00), and the cost of travel for maintenance of the hearing aid (RM37,800.00), are not awarded. This is consistent with and confirmed by the Court Order dated 3 January 2024, which does not include these items. The Plaintiff's cross-appeal seeking affirmation or reinstatement of these awards is accordingly dismissed. Chair Back Brace and Hand Prosthesis Preliminary Issue - Non-Compliance with Order 40A of the Rules of Court 2012

Before addressing the individual items on their merits, it is necessary to address a preliminary issue of procedural law that is determinative of the evidential basis on which the learned SCJ assessed both the Right Transradial Prosthesis and the Chairback Back Brace.

The Defendant argued that the learned SCJ erred in admitting and relying on the Orthotic and Prosthetic Assessment Report dated 10 July 2020, prepared by Mr Santosh Kumar Prasad (Mr Santosh), without due regard for the mandatory requirements of Order 40A of the Rules of Court 2012. In particular, it was submitted that Mr Santosh had failed to file an affidavit exhibiting his expert report as required under Order 40A Rule 3(1), and that his report failed to include a statement that his overriding duty was to the Court and that he had complied with that duty, as required under Order 40A Rule 3(2)(h).

Having perused the learned SCJ’s Grounds of Judgment, I note that this issue was not addressed. The Grounds of Judgment assessed the quantum of both items on the basis of Mr Santosh’s report, without any consideration of whether that report was admissible in the first place. This constitutes a misdirection which warrants appellate intervention.

It is not in dispute that Mr Santosh did not file an affidavit exhibiting his report, as required by Order 40A Rule 3(1) of the Rules of Court 2012. The Plaintiff's Counsel, in their written and reply submissions, sought to address this objection on two grounds: first, that the Defendant had not objected when the report was tendered and marked as Exhibit P-13 at trial; and second, that Order 1A of the Rules of Court 2012 provides a curative provision enabling the Court to overlook technical non-compliance in the overriding interest of justice.

I am unable to accept either of these arguments. The requirements of Order 40A are mandatory, as affirmed by the Court of Appeal in Amzed Development Sdn Bhd v Dato Mat Yahya Bin Hussein & Anor [2020] MLJU 2125. Non-compliance means the expert report cannot be accepted by the Court. The Court of Appeal held that: “[45] Besides, in trying to prove damages, the Respondent called PW 3, the registered valuer. Without PW 3, damages would not be proven. PW 3 acted as an expert witness as he is in the specialised field regarding the valuation of properties. He must be treated as an expert witness. Therefore, he must be subjected to the rule regarding such witness. There is no dispute that before PW 3 testified at the High Court, O. 40A r. 3 of the Rule of Courts 2012 was not complied with by the Respondents in calling PW 3 as a witness. This provision states as follows:

Requirements of expert's evidence (O. 40A r. 3)

Unless the Court otherwise directs, expert evidence to be given at the trial of any action, is to be given in a written report signed by the expert and exhibited in an affidavit sworn to or affirmed by him testifying that the report exhibited is his and that he accepts full responsibility for the report.

An expert's report shall-

(a) give details of the expert's qualifications;

(b) give details of any literature or other material which the expert witness has relied on in making the report;

(c) contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given;

(d) if applicable, state the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and whether or not such test or experiment has been carried out under the expert's supervision;

(e) where there is a range of opinion on the matters dealt with in the report-

(i) summarise the range of opinion; and

(f) contain a summary of the conclusions reached;

(g) contain a statement of belief of correctness of the expert's opinion; and

(h) contain a statement that the expert understands that in giving his report, his overriding duty is to the Court and that he complies with that duty. [emphasis added] [46] There is no dispute that PW 3 did not affirm an affidavit as required by the above provision. Besides, the report must contain the particulars as listed in the same. As this was not complied with, PW 3’s testimony should not have been accepted by the High Court. Obviously the provision was enacted for it to be followed. It was not enacted for the same to be ignored or to be taken lightly (see the cases of Goh Chin Chai v Goh Seng Chan [2016] 1 LNS 1660, Teoh Ah Cha v Huatson Sdn Bhd [2018] 1 LNS 1037 and Tan Siew Hong v Mohd Azli Abdul Hamid [2018] 1 LNS 2143).” [emphasis added]

The rationale behind Order 40A is not merely procedural formality. It goes to the very foundation of expert evidence before the Court. An expert witness owes a paramount and overriding duty to assist the Court on matters within his expertise, a duty that overrides any obligation owed to the party who retains or pays him. The requirement that an expert affirm an affidavit and declare his overriding duty to the Court is intended to impress upon the expert the solemnity and nature of his role and to ensure that the Court can properly evaluate the weight to be accorded to his evidence. It is therefore not a mere technicality of the kind that can be dispensed with under Order 1A. To hold otherwise would render Order 40A effectively redundant in every case where a party chooses not to object at trial, a result that cannot be right.

As for the failure to object at trial, it is trite law that inadmissible evidence does not become admissible merely because the opposing party fails to object to its admission (see Alcontara v Public Prosecutor [1996] 1 MLJ 209). The admission of Mr Santosh’s report as Exhibit P-13 without objection at trial does not cure the defect arising from non-compliance with Order 40A, nor does it preclude this Court from reconsidering the admissibility of that evidence on appeal.

Accordingly, I find that Mr Santosh Kumar’s Orthotic and Prosthetic Assessment Report dated 10 July 2020 (Exhibit P- 13) ought to have been rejected by the learned SCJ for non-compliance with the mandatory requirements of Order 40A of the Rules of Court 2012. The learned SCJ’s failure to address this issue and his consequent reliance on that report in assessing the awards for both the Right Transradial Prosthesis and the Chairback Back Brace constitute a serious appealable error. Appellate intervention is accordingly warranted, and the learned SCJ’s decisions on both items are set aside. Right Transradial Prosthesis

Having set aside the learned SCJ’s award on the ground of the inadmissibility of Mr Santosh’s report, this Court proceeds to reassess the award for the Right Transradial Prosthesis afresh on the basis of the admissible evidence before the Court.

It is not in dispute that the Plaintiff sustained a traumatic, mangled right upper limb as a direct consequence of the 15 May 2019 accident, necessitating a right transradial (below-elbow) amputation. The Plaintiff's orthopaedic specialist, Dr Suntharalingam, confirmed that the Plaintiff requires an artificial limb to assist with the use of his right arm and that the prosthesis will need to be replaced from time to time due to wear and tear. This finding was not seriously challenged.

Regarding the appropriate prosthesis, the admissible expert evidence before this Court is that of the Defendant’s Prosthetist and Orthotist, Mr Sudarsan Swain of Artalive Sdn Bhd. His Orthotic and Prosthetic Assessment Report, dated 7 February 2023, was affirmed by affidavit in full compliance with Order 40A of the Rules of Court 2012.

Mr Sudarsan Swain assessed the Plaintiff and recommended a suitable transradial prosthesis, estimating a cost of RM142,000.00. This Court accepts Mr Sudarsan Swain’s assessment as the appropriate and admissible evidential basis for the award on this item and finds that the Plaintiff requires and is entitled to a prosthetic arm.

This Court recognises the principle of restitutio in integrum, under which the Plaintiff ought, so far as money can do so, to be restored to the position he would have been in had the accident not occurred. The Plaintiff has been deprived of the use of his dominant right forearm, and a functional prosthetic arm is a necessity, not a luxury. On this basis, and having regard to Mr Sudarsan Swain’s expert assessment, this Court awards RM142,000.00 for the Right Transradial Prosthesis. Chairback Back Brace

As with the Right Transradial Prosthesis, the learned SCJ’s award in relation to the Chairback Back Brace was based on the evidence of Mr Santosh Kumar, which I have found inadmissible for non-compliance with Order 40A. That award is accordingly set aside.

This Court assesses this item in light of the admissible evidence. Mr Sudarsan Swain, in his Orthotic and Prosthetic Assessment Report dated 7 February 2023, also assessed the Plaintiff's need for a back brace. His evidence is the only admissible expert evidence before this Court on this item.

Further, I note that the Plaintiff's own orthopaedic specialist, Dr Suntharalingam, confirmed that the Plaintiff suffers from Post-Traumatic Lumbosacral Spondylosis and requires lumbar support. His evidence is corroborated by the Defendant’s prosthetic expert, Mr Sudarsan Swain, who also confirmed the Plaintiff's residual spinal disabilities and the need for a back brace. The Defendant’s orthopaedic specialist, Dr K.S. Dhillon, whilst disputing the extent of the spinal injury, did not categorically dispute that the Plaintiff may require some form of lumbar support. In those circumstances, this Court finds that the Plaintiff has established, on the balance of probabilities, that he requires a Chairback Back Brace.

Having regard to Mr Sudarsan Swain’s assessment, this Court allows the award of RM10,000.00 for the Chairback Back Brace. 1/3 Deduction

I do not accept the Defendant's contention that a 1/3 deduction should be applied to the prosthesis award. The application of a 1/3 deduction is a matter of judicial discretion, not a mandatory rule of law. Having regard to the evidence and the circumstances of this case, including the permanent and severe nature of the Plaintiff’s amputation, the established medical need for a functional prosthesis, and the principle of restitutio in integrum, I find that a 1/3 deduction is unwarranted on the facts of this case.

Therefore, the award for the Right Transradial Prosthesis is assessed at RM142,000.00, as assessed by Mr Sudarsan Swain, without any deduction for contingencies or vicissitudes of life. The Defendant's appeal on this ground is dismissed.

For the reasons stated above, I hereby order that the Defendant’s appeal on liability is dismissed. The Defendant’s appeal on quantum is allowed in respect of the items stated above. The cross-appeal is dismissed in respect of the items stated above. The parties are to bear their own costs. Dated 25 May 2026 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Appellant : Datuk Jagjit Singh s/o Vasawa Singh with Jasjit Singh (PIC) (Messrs Jagjit Singh & Co.) For the Respondent : Harjeet Singh s/o Sardara Singh Patwant Singh Sohanpal (Messrs P S Sohanpal & Sidhu)