Norhasyidan bin Mohd Nor @ Mohamad Hazani v 1. Mohd Ridhwan bin Asmara (BA-12B-14-02/2020)

MOHD RIDHWAN BIN ASMARA

MUHAMMAD NAZIF BIN KAMARUDIN

PACIFIC & ORIENT INSURANCE CO. BERHAD ..... RESPONDENTS GROUNDS OF JUDGMENT

The present case relates to an alleged collision of two motor vehicles in respect of which the trial court found that the Plaintiff has not proved any negligence on the part of the 1st Defendant in the alleged collision and thereafter held that it was unnecessary to find whether or not the claim was false in that no collision in fact has been proven. 2

This is an appeal by the Plaintiff against the decision of the learned Session Court Judge on liability in a judgment delivered after the full trial of the personal injury action wherein the Sessions Court dismissed the Plaintiff’s claims. The 3rd Defendant, the insurance company, has made a cross-appeal against the quantum figures assessed provisionally by the Sessions Court.

The Plaintiff’s liability appeal against the Sessions Court’s dismissal of the Plaintiff’s claims was dismissed by this Court on 19 February 2021, and the 3rd Defendant’s quantum appeal was allowed in respect of one item of the quantum figures. The Plaintiff has appealed against this Court’s decision dated 19 February 2021.

In Abdul Halim bin A. Tambi v. Yong Kim Moon & Ors [2021] MLJU 46 this Court has referred to various decided authorities of the appellate courts including the Federal Court’s decision in Gan Yok Chin & Anor v Lee Ing Chin & Ors (2004) 4 CLJ 309 at pages 320, the Court of Appeal’s decison in Wasal Construction Sdn Bhd v Boh Huat Chan Timber Products Sdn Bhd [2014] 4 MLJ 294, the recent Court of Appeal decision in Perbadanan Pengurusan 3 Two Square v. 3 Two Square Sdn Bhd & Anor [2019] MLJU 1983, the recent Federal Court judgment in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 (wherein the Federal Court has done a detailed and comprehensive analysis and discussion of the “plainly wrong” test for interfering with the factual findings of the trial courts), the Federal Court’s decision in Lim Choon Seng v. Lim Poh Kwee [2020] 5 MLJ 3 587, the House of Lords’s decision in Davies v. Powell Duffryn Assoc. Collieries [1942] AC, p. 616-617, followed in Collector of Stamp Duties v. Ng Fah In [1981] 1 MLJ at p. 292A; also Federal Court in Rashidin bin Partojo v. Frederick Kiai [1976] 2 MLJ 214, the Supreme Court’s decision in Tan Kuan Yau v. Suhindrimani [1985] 2 MLJ 22 (Supreme Court), the Federal Court’s decision in Tan Kuan Yau v. Suhindrimani [1985] 2 MLJ 22; followed by the Court of Appeal in Laksmana Realty Sdn Bhd v. Goh Eng Hwa [2006] 1 MLJ 653 at pg. 682 para [16] and came to the conclusion that the principles on appellate interference that can be gleaned from the abovementioned case authorities can be summarised as follows:

An appellate court should not interfere with the trial judge’s findings of fact unless the trial judge has erred in principle or was plainly wrong in making such findings;

When it comes to an evaluation of oral evidence, the extent to which the benefit of hearing the witnesses and watching the evidence unfold will result in the trial judge having a particular advantage over an appellate tribunal will vary from case to case. Accordingly, it is not possible to lay down any single clear general rule as to the proper approach for an appeal court to take where the appeal is against an evaluation..." : per Lord Neuberger's remarks at paragraph 60 of In Re B (a Child) (FC) [2013] UKSC 33; cited with approval by Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [144]; 4

The mere fact that the appellate court would have come to a different conclusion on the evidence is not a sufficient ground for interference with factual decision except where the decision of the trial court was based entirely on inferences to be drawn from the proved facts (as opposed to findings which involved the issue of the credibility of the witnesses), in which case the appellate court would be placed in the same position as the trial court: per Abdul Rahman Sebli FCJ in Lim Choon Seng v. Lim Poh Kwee paragraph [83];

The principle on which an appellate court could interfere with findings of fact by the trial court is the ‘plainly wrong’ test, in the sense that the finding cannot reasonably be explained or justified and so is one which no reasonable judge could have reached; and that if the appellate court is not satisfied that the decision suffers from that infirmity, it is irrelevant that with whatever degree of certainty, it would have considered that it would have reached a different conclusion from that of the trial judge: per Abdul Rahman Sebli FCJ in Lim Choon Seng v. Lim Poh Kwee paragraph [82];

It is not sufficient for the appellate court to reverse the findings on fact merely because on a particular point of evidence, it disagreed with the conclusion made by the trial court on whether one party or the other is to be believed on the evidence that they gave in court. Although there may be inconsistencies in the evidence which could mean that another judge would have been persuaded to reach a different conclusion, this is not relevant when considering if a trial judge's findings of fact could be 5 overturned: per Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [151];

To justify interference with the trial judge’s findings of fact, the appellate court has to make the appropriate determination that the trial Judge had gone plainly wrong in his decision, in the sense that it could not reasonably be explained or justified and so was one which no reasonable Judge could have reached. Unless the conclusion that the trial judge drew from it was one that no reasonable judge would have made, his conclusion on the point should be left undisturbed: per Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [152];

Rather than adopting a rigid set of rules to demarcate the boundaries of appellate intervention insofar as findings of fact are concerned, the plainly wrong test as espoused in decisions of this Court should be retained as a flexible guide for appellate courts. As long as the trial judge's conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts: per Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. 6 Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [148];

Apart from the above examples and general statements of principles, the application of the plainly wrong test by an appeal court in reversing the findings of facts by a trial court should not be subject to any fixed or rigid guidelines: per Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [148];

Generally, there is reluctance on the part of the appellate court to disturb the trial court’s assessment of liability apportionment in road accident cases unless the appellate court is satisfied that it must be wrong: Court of Appeal in Arab Malaysian Finance v. Steven Phoa [2003] 1 CLJ585;

In an appeal against award of damages or compensation, the appellate court may intervene where it is satisfied that the trial judge has acted on a wrong principle of law, or has misapprehended the facts, or has for other reasons made a wholly erroneous estimate of the damages suffered: House of Lords in Davies v. Powell Duffryn Assoc. Collieries [1942] AC, p. 616-617, followed in Collector of Stamp Duties v. Ng Fah In [1981] 1 MLJ at p. 292A; or to be a wholly wrong estimate of the damages, the amount awarded must manifestly be either excessively high or excessively low; and 7

An omission on the part of the trial judge to consider some relevant matters or he had admitted for the purpose of assessment some irrelevant considerations or a misdirection of law are examples of having acted on a wrong principle of law or having misapprehended the facts which justifies appellate interference on the award of damages or the quantum of damages: Federal Court in Tan Kuan Yau v. Suhindrimani [1985] 2 MLJ 22; followed by the Court of Appeal in Laksmana Realty Sdn Bhd v. Goh Eng Hwa [2006] 1 MLJ 653 at pg. para [16].

As our present appeal involves liability issues only, this Court has adopted and followed the abovementioned statements of principles (1) to (11) in dealing with this appeal.

In our present case, the learned Sessions Court Judge held on liability that the Plaintiff has failed to prove that the alleged collision was caused by any alleged negligence of the 1st as alleged or at all, and therefore the Sessions Court held that Defendants were not liable at all.

The learned Sessions Court Judge’s decision on liability is in essence a factual decision based on his findings of fact and after having heard the oral evidence of witnesses (including independent witnesses) and after having the advantage of observing the demeanour of the witnesses. 8

In his Grounds of Judgment at pages 245 to 296 of the Supplementary Records of Appeal (Enclosure 5), the learned Sessions Court Judge has analysed in detail the evidence of the witnesses and also the documentary evidence before coming to the factual conclusion that the Plaintiff has failed to prove the alleged collision was caused by the alleged negligence of the 1st Defendant and that therefore Defendants were not liable at all to the Plaintiff.

Having perused the evidence and the Appeal Records and having read and considered the parties’ submissions, this Court came to the conclusion that -

the learned trial judge’s findings of fact are supported by the evidence of an independent witness, SD1, officer of PLUS Ronda, who came to the scene promptly on the day of the incident;

the learned trial judge’s factual decision is also consistent with the silent evidence in the documents tendered as evidence in the trial;

there are reasonable explanations and justifications for the learned trial judge’s factual decision on liability; and

the learned trial judge’s factual decision is a decision which a reasonable trial judge would have made. 9

In the circumstances, this case fell much below the “plainly wrong” test for an appellate interference with the trial judge’s findings of fact and the trial judge’s factual decision on liability and his decision on liability.

In the premises, based on the legal principles stated in subparagraphs 4(1) to 4(8) above, this Court has held that the learned Sessions Court Judge has not erred in principle and there was no valid or sufficient basis for this Court sitting on appeal to disturb or interfere with the learned trial judge’s findings of fact or his decision on liability.

Even if this Court were to sit as a trial court to assess the evidence and to make findings of fact afresh, this Court would still come to the same conclusion as the learned Sessions Court Judge that the Plaintiff has not proved the alleged collision was caused by any alleged negligence on the part of the 1st Defendant.

The relevant parts of the learned Sessions Court's scrutiny and analysis of evidence and findings of facts can be found in paragraphs [25] to [56] of his Grounds of Judgment. Having perused the evidence in the Appeal Records, this Court finds that the learned Sessions Court has made the correct findings of fact in the present case and has made the correct factual decision that the Plaintiff has failed to prove that there was any alleged negligence on the part of the 1st Defendant.

In the present case, the learned trial judge in paragraph [56] of Grounds of Judgment also found it unnecessary to make factual findings or decision as to whether or not the Plaintiff’s claim was a false claim because no collision between the Plaintiff’s motorbike and the 1st Defendant’s motorbike occurred in fact. 10

The factual question whether or not a collision did in fact occur between two motor vehicles in road accident cases of claims against insured drivers and insurance companies is often a difficult question of fact to be decided by the Subordinate Courts, and some general guidance may perhaps be pertinent here. This factual question involves some understanding of human habits and behaviour, mingled with empirical knowledge of assessing the probabilities and improbabilities based on the empirical analysis and assessment of documentary evidence.

The following provisions of the Evidence Act 1950 are some relevant example of evidential principles based on ordinary course of natural events, human habit of a prudent person and public and private business –

definition of “proved”, “disproved”, “not proved” in section 3 of the Evidence Act 1950 : “proved” : a fact is said to be “proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists; “disproved” : a fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist; 11 “not proved” : a fact is said to be “not proved” when it is neither proved nor disproved.

section 7 of the Evidence Act 1950 : Facts which are the occasion, cause or effect of facts in issue

Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity of their occurrence or transaction, are relevant.”

section 8 of the Evidence Act 1950 and illustrations (b) and (g): Motive, preparation and previous or subsequent conduct

(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 12 Explanation 1 – The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 – When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant.

A sues B upon a bond for the payment of money. B denies the making of the Bond.

The question is whether A owes B RM10,000. The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing: “I advise you not to trust A for he owes B RM10,000.” and that A went away without making any answer are relevant facts.”

section 9 of the Evidence Act 1950 and illustration (d):

Facts necessary to explain or introduce relevant facts Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant so far as they are necessary for that purpose. 13

A sues B for inducing C to break a contract of service made by him with A. C on leaving A’s service says to A: “I am leaving you because B has made me a better offer.” This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.

section 11 of the Evidence Act 1950 :

When facts not otherwise relevant become relevant Facts not otherwise relevant are relevant—

if they are inconsistent with any fact in issue or relevant

if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

section 15 of the Evidence Act 1950 :

Facts bearing on question whether act was accidental or intentional When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

section 114 of the Evidence Act 1950 : 14

Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. The court may presume—

that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence;

that the common course of business has been followed in particular cases;

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;

that if a man refuses to answer a question which he is not compelled to answer by law, the answer if given would be unfavourable to him; (i) that when a document creating an obligation is in the hands of the obligor the obligation has been discharged. But the court shall also have regard to such facts as the following, in considering whether the maxims do or do not apply to the particular case before it: 15

as to illustration (d)—it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;

(vii) as to illustration (f)—the question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;

(viii) as to illustration (g)—a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feeling and reputation of his family;

(ix) as to illustration (h)—a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked.

From the settled legal principles and the abovementioned provisions of the Evidence Act 1950, it can be summarized that:

In assessing evidence and deciding on factual findings in a civil case, the Court makes findings of facts on a balance of probabilities.

Where a factual matter falls within any of the statutory presumptions including those in section 114 of the Evidence Act 1950, the Court may act according to the fact as presumed by statute subject to any statutory exception, without prejudice to 16 the discretion of the court to call for proof of it notwithstanding the presumption and without prejudice of disproof of it: Sections 4(1), 4(2), 114 provisos.

In assessing the existence or non-existence of a fact, the Court makes its factual finding according to whether the Court either

believes that it exists or does not exist, or

consider its existence or non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does or does not exist. [see definitions of “proved” and “disproved” in S3 of Evidence Act 1950].

The existence or non-existence of a fact can be found by having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case : section 114 of Evidence Act 1950.

A prudent person, having regard to the common course of natural events, human conduct and public and private business would take note of the following factors:

As a result of a collision between two motor vehicles, the two motor vehicles would most probably suffer damage and dent or at least scratch mark on each of the motor vehicle. This is especially true of a collision between two motor vehicles of comparable sizes. A collision between two motorbike is a collision between two motor vehicles of comparable sizes. 17

Contemporaneous photographs of the two motor vehicles which show the types, nature and extent of the damages and the parts of each motor vehicle damaged by the collision are very relevant and material evidence to show whether or not a collision between them occurred and if so, the manner in which the collision occurred. In the common course of natural events, it is very difficult for a person to re-orchestrate physical damages to two motor vehicle in a way and to an extent which can tally in many material aspects with the stories of the drivers / riders who fabricate a non-existent collision.

In a case where there are contemporaneous photographs showing the damages and conditions of the two motor vehicles shortly after the incident, the contemporaneous photographs provide the best evidence to establish the existence or non-existence of a collision between the two motor vehicles.

In a case where no such contemporaneous photographs of both the motor vehicles was produced in evidence, the Court has to consider the common course of human conduct in assessing the existence or non-existence of a collision between two motor vehicles.

The common course of human conduct includes, but are not limited to, the following main factors:

A driver or rider, either in the driving school or in the ordinary course of life, most probably knows that he / she has a duty to lodge a police report of a traffic accident 18 within 24 hours of its occurrence and to promptly notify the insurance company in order to get the protection and coverage for any potential claim, repairs and / or liability.

Even if there is a rare or exceptional driver or rider who does not have the aforesaid knowledge, he / she would most probably have been told about the same by his family member, relative, friend or colleague when he / she informs one of them of the occurrence the traffic accident.

Where at least one of the drivers / riders is not physically disabled from making a police report within 24 hours or shortly thereafter from giving notice of accident to his / her insurance company but such driver / rider fails or neglects to lodge police report or notify the insurance company promptly, it tends to render the non-existence of collision more probable. Of course, the situation is different where both the drivers / riders are hospitalised for days due to serious injuries suffered. In the situation where both the drivers / riders are hospitalised for days due to serious injuries, neither of them would be physically able to lodge a police report within 24 hours or shortly thereafter, though in some cases of such situation, a relative or friend or colleague of either of them may be knowledgeable or helpful enough to promptly lodge a police report on their behalf to put the collision on official record.

In a case where two drivers / riders allege the existence of a collision between their motor vehicles but one of their 19 relevant motor vehicles has not been offered for examination by an independent person and no photograph whatsoever of the motor vehicle was produced to show the physical damage or condition allegedly caused by the accident, this tends to render it less probable for establishing the existence of a collision unless the driver / rider of the affected motor vehicle has strenuously denied his involvement in any collision and has thereby intentionally withheld the motor vehicle from being produced or photographed.

In the common cause of human life and habit, the main reason which motivated an injured person to make claims out of a fictitious non-existent collision is to get money from the defendant or the defendant’s insurance company. In order to do so, the injured person has to find a friendly party who would sympathise with him / her and arising from the injuries sustained and the adverse consequences therefrom. Initially, strong emotions of pity and sympathy sometimes leads a person to act impulsively to help the injured person by making a police report on alleged collision and by giving notice to the insurance company. After the initial impulsive act to help, the person may sometimes be troubled by his / her conscience, especially after being corrected or advised by a parent or relative or friend, thereby leading to a subsequent police report or statutory declaration or affidavit to retract or attempt to retract the first police report so as to clear his / her conscience. In the ordinary course of human life and habit, 20 a person who has resiled from a previous statement is also capable of reversing the second position or statement, thereby attempting to revert to the first position or statement. Irrespective of which of the first and the second positions or statements is the true fact or the truth, the fact that such retraction or change of position or statement happened to a party allegedly involved in an alleged collision tends to show it less probable that there was occurrence of collision.

In a case where the contemporaneous photographs of physical damage or condition of both the motor vehicles or at least one motor vehicle are produced, the Court has to weigh the probabilities or improbabilities of the drivers / riders/ versions of the story on the accident against the silent, empirical evidence in the form of the physical damage and condition of the motor vehicle(s) as shown in the contemporaneous photographs.

Evidence of independent witness who was at the scene of accident shortly after the happening or alleged happening of the accident is relevant, and any contemporaneous record prepared by such independent witness can be helpful in the overall assessment of evidence in such case.

The above items are not an exhaustive list of relevant factors, and there may well be other relevant factors to be considered in each particular case. 21

All the relevant facts and circumstances of the case, including the main factors on common course of natural events and human habits as summarised in items 10(1) to 18(8) above, are to be considered by the trial court when coming to the finding of fact whether or not a collision between the two motor vehicles in fact occurred.

Although the learned Sessions Court Judge has found it unnecessary to make a finding as to whether or not there was any occurrence of collision between the two motor vehicles concerned after he has found that the Plaintiff has failed to prove there was any negligence on the part of the 1st Defendant which caused an alleged accident, this Court after consideration of the evidence including the factors stated above has come to the conclusion that on a balance of probabilities a reasonable trial judge who has analysed the evidence and facts as considered and found by the learned Sessions Court Judge in his Grounds of Judgment would be justified in making a factual finding that no collision occurred between the two motor vehicles concerned in the circumstances of this case. Among others, the factors which tip the balance of probabilities in favour of non-existence of any collision between the Plaintiff’s motorbike and the 1st Defendant’s motorbike include the following facts: (1) no prompt police report was lodged by either the Plaintiff or the 1st Defendant; (2) there was no photograph of the 1st Defendant’s motorbike to show any damage or dent to it; (3) the Plaintiff’s oral evidence as to the damage to his motorbike is not consistent with his allegation that his motorbike was collided from behind, as analysed and found by the trial judge; (4) the trial judge also found inconsistencies in the oral evidence of the Plaintiff; (5) the evidence of the independent witness (an officer from PLUS Ronda) who went to the scene of accident shortly after the accident is that the 22 Plaintiff seemed to have skidded without collision and the trial judge found the independent witness to be credible and reliable; (6) the contemporaneous sketch plan drawn by the independent witness shows no sign or evidence of any collision; (7) the 1st Defendant retracted his first police report by lodging a second police report and the 1st Defendant’s last version of the police report stated there was no collision; and (8) the injuries sustained by the Plaintiff do not support the Plaintiff’s version of how the accident allegedly occurred. The investigation officer only came to the scene many days after the accident and, as correctly assessed and found by the trial judge, his evidence and so-called sketch plan are of no evidential weight for supporting the Plaintiff’s version. The 1st Defendant’s first police report has been retracted by him and therefore is of no assistance to the Plaintiff’s case. What is left for the Plaintiff to rely upon in support of the Plaintiff’s case is his own oral evidence and the 1st Defendant’s oral evidence. Counterbalanced against the abovementioned eight (8) facts and/or factors which lean in favour of non-existence of any collision between the Plaintiff’s motorbike and the 1st Defendant’s motorbike, the balance of probabilities is much in favour of the factual conclusion that no collision occurred between the Plaintiff’s motorbike and the 1st Defendant’s motorbike.

In the premises, this Court on 19 February 2021 dismissed the Appellant / Plaintiff’s appeal on liability issues and affirmed the Sessions Court’s decision which dismissed the Plaintiff’s claims and action. 23

In the Sessions Court, the learned trial judge also assessed the quantum figures for the damages and injuries although the Plaintiff’s claims and action was dismissed on liability issues.

On quantum issues, the 3rd Respondent/3rd Defendant has cross-appealed against the Sessions Court’s quantum figures for several items.

After hearing the parties on the cross-appeal on quantum, this Court came to the conclusion that only the quantum figure of one (1) item, head injuries, justified an appellate intervention on quantum.

As the Applicant/Plaintiff has appealed against the whole of this Court’s decision dated 19 February 2021 but the 3rd Respondent/3rd Defendant has not appealed against this Court’s decision on quantum figures, the grounds of judgment herein will only deal with the one item of quantum figure which was reduced by this Court.

For ease of reference, the principles upon which an appellate court will interfere with the trial judge’s award of quantum of damages are summarised below:

In an appeal against award of damages or compensation, the appellate court may intervene where it is satisfied that the trial judge has acted on a wrong principle of law, or has misapprehended the facts, or has for other reasons made a wholly erroneous estimate of the damages suffered: House of 24 Lords in Davies v. Powell Duffryn Assoc. Collieries [1942] AC, p. 616-617, followed in Collector of Stamp Duties v. Ng Fah In [1981] 1 MLJ at p. 292A; or to be a wholly wrong estimate of the damages, the amount awarded must manifestly be either excessively high or excessively low; and

An omission on the part of the trial judge to consider some relevant matters or he had admitted for the purpose of assessment some irrelevant considerations or a misdirection of law are examples of having acted on a wrong principle of law or having misapprehended the facts which justifies appellate interference on the award of damages or the quantum of damages: Federal Court in Tan Kuan Yau v. Suhindrimani [1985] 2 MLJ 22; followed by the Court of Appeal in Laksmana Realty Sdn Bhd v. Goh Eng Hwa [2006] 1 MLJ 653 at pg. para [16]. GENERAL DAMAGES

The details of the injuries sustained by the Plaintiff have been summarized by the learned trial judge in his Grounds of Judgment. The principles on damages referred to by the learned trial judge can be found in his Grounds of Judgment, and this Court does not find any error in such principles. In his Grounds of Judgment, the learned trial judge adequately considered and dealt with the heads of personal injuries item by items before awarding the quantum for them. This Court does not find any error in principle or anything grossly excessive on the part of the learned trial judge in his assessment of the quantum of damages except for one item, namely, head injuries. 25

For head injuries, the decided cases on the quantum of damages included the following cases:

RM60,000.00 : Mohammad Hairul Alhafiz Bin Zan Imi v. Mohamad Azhar bin Yussoh [2019] 1 PIR [21];

(ii) RM60,000.00 : Mohamad Zamzani Bin Zakaria v. Azarudin Mahizan Bin Azizan [2019] 1 PIR [59];

(iii) RM90,000.00 : Kavetha A/P Muniandy v. Uthiya Kumar A/L Ramaiyah [2018] 2 PIR [15] : multiple head injuries with permanent disabilities, i.e. dypraxia (motor incoordination with functional disabilities and cognitive disability).

The head injuries suffered by the plaintiff in the case of Kavetha A/P Muniandy were significantly more serious than the head injuries suffered by the Appellant/Plaintiff in this appeal.

In the premises, the quantum figure of RM150,000 for the head injuries of the Appellant/Plaintiff in our present appeal was out of trend with the quantum awarded in the recent past cases and/or was grossly excessive.

In light of the fact that the Appellant/Plaintiff’s head injuries are more serious than those in the cases of Mohamad Hairul Alhafiz and Mohamad Zamzami Bin Zakaria but less serious than those in the case of Kavetha a/p Muniandy, a reasonable quantum figure for head injuries in the present appeal is RM75,000.00. 26

In conclusion, this Court held on 19 February 2021 as follows:

the Appellant / Plaintiff’s appeal on liability is dismissed;

the cross-appeal by the 3rd Respondent / 3rd Defendant is allowed in respect of only one (1) item of quantum figures, i.e. the quantum for head injuries is reduced from RM150,000.00 to RM75,000.00;

In view of the fact that the Appellant / Plaintiff has failed on liability issues, no damages whatsoever is awarded to the Appellant / Plaintiff;

The Appellant / Plaintiff shall pay costs of this appeal, assessed at RM3,000, to the 3rd Respondent, subject to allocator; and

The 1st and 2nd Respondents shall bear their own costs of this appeal. Dated : 9th April 2021. Signed ............................................................. TEE GEOK HOCK JUDICIAL COMMISIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) 27 To the parties’ solicitors:

For the Appellant : Messrs NM Tiong & Co.

For the 1st & 2nd Respondent : Messrs Saleha Tahir & Partners 3. For the 3rd Respondent : Messrs Viknes Ratna & Co.