Nurul Atikah Binti Mustafa Kamal v 1. ) Nurazlina Suriani Binti Zulkifly (21NcVc-01-04/2016)

1.

PENGETUA MAKTAB RENDAH SAINS MARA

3.

4.

KERAJAAN MALAYSIA ... DEFENDAN GROUNDS OF JUDGMENT 25 [1] This is a personal injuries claim for damages arising from negligence of the Defendants. I had allowed the Plaintiff’s claim against the 1st, 2nd, 3rd and 4th Defendants on the basis of joint and several liability and against the 5th 30 Defendant on the basis of vicarious liability. These are my grounds for that decision. [2] The factual background to the Plaintiff’s claim is as follows. 2 [3] The Plaintiff was at the material time a Form 3 student at the Maktab Rendah Sains MARA Kem Terendak, Melaka (“MRSM”). The 1st Defendant was a teacher at the MRSM, and was the Plaintiff’s health and physical education teacher. The 2nd Defendant was the Principal of the MRSM at the material time. The 3rd Defendant is a statutory body established under the Majlis 5 Amanah Rakyat Act 1966 (Act 486) and was the body that managed and operated the MRSM. The Plaintiff states that the 3rd Defendant is vicariously liable to acts and omissions of the 1st and 2nd Defendants. [4] The MRSM was built within a military camp known as Kem Terendak, which was owned and operated by the 4th and 5th Defendants, and the 10 infrastructure, buildings and facilities within the MRSM, including the maintenance thereof, were within the control, supervision and purview of the 4th Defendant. [5] The Plaintiff states that the 5th Defendant is vicariously liable for the acts and omissions of the 1st, 2nd, 3rd, and 4th Defendants. 15 [6] On 20.3.2013 at about 7.30am, whilst attending a physical education class conducted by the 1st Defendant on a basketball court at the MRSM, the Plaintiff suffered injury to her person when a portable basketball hoop/post snapped and collapsed onto her back. At the time of the incident, the Plaintiff 3 was sitting on the basketball court. It is undisputed that the nature of medical injury to the Plaintiff from that incident is, inter alia, as follows:

severe fracture of Thoracic 12 vertebra (T12);

severe dislocation at T11-T12 vertebral level;

paraplegia of the lower body secondary to the spinal injury; and 5

incontinence – requiring continuous intermittent self catherisation. [7] Before commencement of trial, counsel for the Plaintiff informed the court that the Plaintiff and the 1st, 2nd, and 3rd Defendants had come to a settlement where the 1st, 2nd, and 3rd Defendants had agreed to pay a certain sum of money to the Plaintiff. However, the Plaintiff did not proceed to 10 withdraw the claim against the 1st, 2nd, and 3rd Defendants, but told the court that no matter what the outcome of the trial, the Plaintiff would limit her claim for monetary damages against the 1st, 2nd, and 3rd Defendants to the sum agreed between them. Hence, the 1st, 2nd, and 3rd Defendants and their counsel did not participate in the trial. 15 [8] The following witnesses testified at trial:

Nurul Atikah Binti Mustafa Kamal (PW1);

(ii) Zariati Binti Adnan (PW2); 4

(iii) Mustafa Kamal bin Omar (PW3);

(iv) Dr Ramnan Jeyasingam (PW4).

Mohamed Khaidzir Bin Mohamad Yusof (DW1);

(vi) Wishbone ak Thomas Tom (DW2);

(vii) Shuhamiza Binti Mohd Shukor (DW3);

(viii) LT Kol (B) Mohd Zahari Bin Abu (DW4); and

(ix) Dr Nurhasyimah Binti Hisamuddin (DW5). Duty of care [9] In a claim for negligence, the Plaintiff would have to prove, that:

the defendant owed a duty of care;

(ii) the defendant breached that duty of care;

(iii) the breach occasioned the damage to the plaintiff;

(iv) the damages are not too remote. See: Projek Lebuh Raya Utara Selatan Sdn Bhd v. Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 6 CLJ 958, CA. 15 5 [10] As between the Plaintiff and 1st, 2nd and 3rd Defendants, it is well established that by virtue of the teacher-student relationship, there exists a duty care of the part of teacher and school towards the student. This was reiterated by the Federal Court in Government of Malaysia & Ors v. Jumat bin Mahmud & Anor [1977] 1 LNS 29; [1977] 2 MLJ 103, as follows: 5 It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. The duty of care on the part of the teacher to the plaintiff must commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and the duty of care required is that which a careful 10 father with a very large family would take of his own children (see Ricketts v. Erith Borough Council [1943] 2 All ER 629, 631). It is not a duty to insurance against harm but only a duty to take reasonable care for the safety of the pupil. Hence, the 1st Defendant as the MRSM teacher, the 2nd Defendant as the MRSM’s principal and the 3rd Defendant as the legal body that manages and 15 operates the MRSM and the statutory body that employs the 1st and 2nd Defendants as its teaching and management staff clearly owe a duty of care to the Plaintiff, a student who was enrolled in the MRSM. [11] Now, as for the 4th and 5th Defendants, the Amended Defence dated 22.8.2016 states as follows: 20 “(a) Defendan Keempat (Menteri Pertahanan) bertanggungjawab dalam hal pentadbiran Kem Terendak, Melaka. 6

Defendan Keempat (Menteri Pertahanan) bertanggungjawab menyelenggarakan bangunan yang melibatkan kejuruteraan awam, elektrikal, mekanikal, kumbahan dan anai-anai yang dilaksanakan oleh Bahagian Perkhidmatan Kejuruteraan Perkhidmatan Kem Terendak, bergantung kepada kepada aduan dan/atau permintaan oleh pentadbiran Maktab Rendah Sains Mara dan juga 5 bergantung kepada peruntukan kewangan oleh Kementerian Pertahanan. Defendan Keempat dan Kelima seterusnya menegaskan bahawa Maktab Rendah Sains Mara Kem Terendak juga mendapat peruntukkan bagi penyelenggaraan harta modal daripada Defendan Ketiga dan pihak-pihak lain yang memberikan sumbangan.” [12] Hence, there is clear admission by the 4th and 5th Defendants in the 10 pleadings that the 4th Defendant and 5th Defendants are the landlord of Kem Terendak on which the MRSM is situated. There is further admission that the 4th Defendant is responsible for the administration and maintenance of infrastructure, including the MRSM building and its ancillary facilities, with funding from both the 3rd and 5th Defendants. Learned Senior Federal Counsel 15 for the 4th and 5th Defendants submits that the 4th and 4th Defendants do not owe any duty of care to the Plaintiff because the occupier of the premise is the 3rd Defendant, who has exclusive possession of the MRSM, and argues that liability cannot be apportioned to the 4th and 5th merely by virtue of the fact that the 4th and 5th Defendants were the owners and maintainers of the 20 facilities upon which the MRSM operated. Learned Senior Federal Counsel relies on the case of Wheat v E Lacon & Co Ltd [1966] A.C. 552 in support of this contention. 7 [13] Now, I find that submission of the learned Senior Federal Counsel cannot be sustained because the evidence shows that the 4th and 5th Defendants are not mere bare landlords who had tenanted out the premises to the 3rd Defendant. There is a history of collaboration between the 3rd and 4th Defendants from the inception of the MRSM up till its present operations. The 5 evidence, both documentary and oral, establishes the following:

the MRSM was established on 8.9.1980 based on an agreement between the 3rd Defendant and the Ministry of Defence;

(ii) the MRSM was established as a boarding school to cater primarily for children of armed forces personnel, where the physical infrastructure 10 and school facilities will be provided for and maintained by the Ministry of Defence, under the 4th Defendant, and the teaching faculty, administration and support staff will be provided by the 3rd Defendant;

(iii) DW1 had testified that:

the MRSM was established by the Ministry of Defence in 15 collaboration with MARA primarily for the benefit of the children of armed forces personnel and the decision to locate the MRSM in Kem Terendak, Melaka, i.e. within an existing army camp, was a joint decision of both parties; 8

a ‘Kertas Kerja’ or Working Paper dated 27.8.80 for the establishment of the MRSM was prepared under the direction of the 4th Defendant (pages 2-31 of Bundle D), wherein it is clear that the proposal was for the physical structures and school facilities of the MRSM to be owned and maintained by the 4th Defendant, and 5 the 3rd Defendant was to provide the teaching faculty as well as have overall supervision and control over the teachers and staff, and attend to all aspects of academia, student affairs and administration of the MRSM for the benefit of the 4th Defendant. The Kertas Kerja for the formation of the MRSM states: 10 “Memandangkan projek ini adalah projek Angkatan Tentera sendiri, senggaraan bagi bangunan tersebut akan menjadi tanggungjawab pihak Angkatan Tentera”; Hence, the duty and responsibility for the maintenance of the facilities rests solely with the 4th Defendant.

the ‘Kertas Kerja’ also states that the 4th Defendant had agreed to provide all facilities including the building infrastructure and sports facilities, as well as to maintain them in a state of good repair and provides clearly that 9 “Kemudahan-kemudahan sukan dan perubatan dipanjangkan oleh Angakatan Tentera kepada kakitangan MRSM tersebut”;

at the MRSM’s inception the Ministry of Defence under the purview and direction of the 4th Defendant had provided all the sports facilities and equipment for the students’ use, and this 5 includes the portable basketball hoop/post which fell and injured the Plaintiff.

(iv) DW4 had testified that at the material time of the incident, he was the Pegawai Staf 1 Senggaraan, in charge of the Bahagian Perkhidmatan Kejuruteraan Perkhidmatan, Pejabat BPKP Zon Selatan at Kem Terendak 10 Melaka, and confirmed that the repair and maintenance of the MRSM buildings, infrastructure and facilities were under the responsibility of the said Bahagian Perkhidmatan Kejuruteraan Perkhidmatan (“BPKP”) of the 4th Defendant. DW4 further confirmed that this responsibility encompassed the maintenance of the sports facilities, including the 15 portable basketball hoop/post that caused the injury to the Plaintiff . [14] The evidence further shows that:

the entire MRSM infrastructure, educational and sporting facilities, including the portable basketball hoop/post that caused the injury to the 10 Plaintiff, were supplied and owned by the Ministry of Defence remained under the 4th Defendant’s purview and this was confirmed by DW4;

(ii) the 3rd Defendant knew as early as September 2011 that the said portable basketball hoop/post was in a state of disrepair, obsolete and unusable, and that it needed to be immediately replaced. This can be 5 seen from the letter dated 26.9.2011 (page 50 of Bundle D) from the 3rd Defendant addressed to “Markas Angkatan Tentera Malaysia, Jabatan Arah Pendidikan, Kementerian Pertahanan, Jalan Padang Tembak, 50643 Kuala Lumpur” and copied to the “Bahagian Perkhidmatan Kejuruteraan Pertahanan, Malacca”. Attached to this letter is a schedule of proposed 10 maintenance and repair works titled “Keperluan Senggaraan Sekolah Dalam Kem ATM 2011” and Item 3 of the said schedule reads: “Gelanggang Bola Keranjang – Membuat kerja-kerja menurap lantai simen dan mengganti tiang gol yang telah usang (SEGERA)” (Emphasis added). This document, found at page 51 of Bundle D, clearly shows that the 15 portable basketball hoop/post that caused the injury to the Plaintiff needed to be replaced immediately. And further at page 52 of Bundle D is the Borang JP&P 4 raised by the 3rd Defendant, and forwarded to the relevant division under the 4th Defendant’s purview sometime in September 2011, which contains the request for approval to carry out 20 11 several proposed maintenance and repair works, one of which carries the reference “JP & P 39 (Padang Bola Keranjang)” that describes the proposed repair works as: “Menurap lantai simen yang baru dan menggantikan tiang gol yang telah rosak.” (Emphasis added). 5 Hence, contemporaneous documentary evidence shows that the 4th Defendant’s staff had been notified as early as September 2011 that the basketball hoop/post was damaged and needed to be replaced immediately.

(iii) DW4 stated in evidence that in 2010, there was only one basketball 10 hoop/post on the basketball court in the MRSM and therefore the damaged basketball hoop/post that was requested to be replaced could only refer to the one that snapped and fell onto the Plaintiff, injuring her.

(iv) DW1 and DW3 testified that the aforementioned request by the 3rd 15 Defendant in 2011 to replace the damaged portable basketball hoop/post was not attended to by the Bahagian Perkhidmatan Kejuruteraan Pertahanan, which is under the purview of the 4th Defendant, and was deferred to a later date because of lack of funds allocation. 20 12 [15] Hence, the evidence clearly shows that the 4th Defendant was not merely the landlord of the MRSM, but had taken on the added responsibility of maintaining the buildings, facilities and equipment therein, including the basketball hoop/post which is the subject matter of this action. The evidence also shows that the operation of the MRSM was a joint endeavor between the 5 3rd and 4th Defendants, where both had their respective share of duties and obligations. This was definitely not a case of a pure landlord and tenant relationship, where the 4th Defendant merely provides the buildings and infrastructure and the maintenance of it is left to the 3rd Defendant. [16] In Sri Inai (Pulau Pinang) Sdn Bhd v. Yong Yit Swee & Ors [2002] 4 CLJ 10 776, the facts were that, the second defendant, a local authority, had leased out a house to the first defendant, a school, which used the premises as a hostel for its students. A fire broke out at the said hostel and lives were lost as well as serious injuries sustained by its occupants. The Sessions Court had found both defendants equally liable. However, the High Court held that the 15 first defendant was solely liable for the said incident on the premise and that the second defendant was not liable in tort, either in its capacity as landlord, or as a local council for failing to enforce the relevant building by-laws. The court had also found that the second defendant was not liable in contract. The 13 Court of Appeal in allowing the appeal by the first defendant against the said decision, and reinstating the decision of the Sessions Court, held that:

A landlord of premises stands in sufficiently close proximity to the lawful visitors of his tenant and under common law, a landlord owes a duty of care to the lawful visitors of his tenant.

A landlord owes a duty to the lawful visitors of his tenant to ensure that the premises let out is safe for the purposes for which they are meant to be used and the defect complained of by the entrant must be a defect which the landlord had knowledge or means of knowledge.

The second defendant as the landlord of the premises in question did 10 owe a duty of care to the lawful visitors of his tenant and was in breach of that duty.

Whilst the tort of negligence does not generally impose liability for omissions, that principle is confined to only pure omissions. [17] Learned Senior Federal Counsel argues by reference to the English case 15 of Wheat v E Lacon & Co Ltd [1966] A.C. 552 that the 4th and 5th Defendants do not owe a duty of care to the Plaintiff as they have parted control of the premises together with the facilities and equipment within the MRSM to the 3rd Defendant. The learned Senior Federal Counsel’s argument is that since the 14 4th and 5th Defendants have not retained any degree of control over the manner in which the facilities and equipment are used at the MRSM, a duty of care ought not be imposed on them is respect of its upkeep and repair. [18] I am, with respect, unable to accept that argument. The 4th Defendant had, as owner/landlord, in fact retained some degree of control over the 5 facilities and equipment at the MRSM. The overall evidence shows that the basketball hoop/post was under the care and control of the 4th Defendant and it was the duty of the 4th Defendant to keep that equipment is a state of good repair. The evidence shows that any repair or replacement to the facility and equipment must have the 4th Defendant’s prior approval and done through or 10 by the BPKP. Hence, it is clear that in keeping with the dicta of the Court of Appeal in Sri Inai (Pulau Pinang) Sdn Bhd v. Yong Yit Swee & Ors [supra], the 4th Defendant owes a duty of care to the Plaintiff, a student of the MRSM, to ensure that the premises, and the facilities and equipment therein, are safe for the purposes for which they are meant to be used. The degree of care that 15 ought to be exercised depends among other matters, on the magnitude of risk to which a Plaintiff is exposed in particular circumstances. [19] The 4th Defendant owes a duty to take all reasonable and proper steps to ensure that the facilities and equipment provided for the students’ use at the MRSM by the 4th Defendant is kept in state of good repair and is safe for their 20 15 use, and that they kept safe from injury to their person. Thus, in Mohamed Raihan bin Ibrahim & Anor v. Government of Malaysia & Ors (1981) 2 MLJ 27, at p. 28, in respect of the duty of care exercisable by a teacher and/or school to its students, Salleh Abas FJ observed as follows: It is settled law that a school teacher is under a duty to exercise supervision over his 5 pupils when they are in the school premises, either in the classroom or the playground. The degree of supervision depends on the circumstances of each case, such as the age of the pupils and what they are doing at the material time. If the teacher knows that the pupils are engaged in doing acts which are likely to cause injuries to one another, the teacher is under a duty to take steps to ensure the safety 10 of the acts. ... ... In conclusion we are of the opinion that having regard to what we have discussed above, the respondents were therefore negligent for failing to take all reasonable and proper steps to prevent the appellant under their care from sustaining the injury 15 and that their teacher did not check the condition of the garden tools nor provided a safe system of holding the gardening class. Similarly, the 1st and 2nd Defendants as teacher and principal, the 3rd Defendant as the schools manager/operator, and the 4th Defendant as owner of the school facilities, owe a duty of care to ensure that the damaged basketball 20 hoop/post did not pose a danger to the MRSM students or cause injury to them. 16 [20] The documentary and oral evidence also shows that 5 days after the injury caused to the Plaintiff by the damaged and obsolete basketball hoop/post, the 4th Defendant, through the BPKP, proceeded to replace it. In this regard, the 3rd Defendant made an urgent request to the 4th Defendant vide Borang BPKP dated 25.3.2013 (page 1 of Bundle E) to carry out the 5 following repair and maintenance works: “Membuat kerja: Membaiki dan menyelenggara keseluruhan lantai gelanggang dan tiang gol bola keranjang (Kecemasan).” This Borang BPKP dated 25.3.2013 carries a reference “JP & P 39 Gelanggang Bola Keranjang” which is the same reference found in the earlier request made 10 in September 2011 (page 52 of Bundle D) for the replacement of the damaged basketball hoop/post, which was not attended to at that time, ostensibly for lack of funds. Following this after the event request on 25.3.2013, the 4th Defendant carried out immediate repair works to the basketball court and replaced the obsolete and damaged basketball hoop/post with a permanent 15 basketball hoop post. This clearly demonstrates that the 4th Defendant was the principal and the 3rd Defendant was the agent when it came to the MRSM premises and the facilities and equipment therein. [21] In this regard, over and above their liability as owner with a duty to upkeep the premises and facilities, the 4th Defendant would also be vicariously 20 17 liable for the negligence of the 1st, 2nd, and 3rd Defendants by virtue of the doctrine of ratification, which has its origins in the law of agency. In the well regarded and authoritative text, Charlesworth & Percy on Negligence, 8th Ed, para 2-288, it is stated that: Liability of the principal may also be founded under the doctrine of ratification. Thus, 5 if one person commits a tort, whilst acting on behalf of another person, albeit without his authority, and that other later ratifies the act, he becomes just as responsible for the wrong as if he had authorized it initially, before its commission. That principle is derived from the old English case of Wilson v Tumman (1843) 6 M & C 242, where Tindal CJ explains the doctrine of ratification as such: 10 That an act done for another, by a person, not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, is the known and well-established rule of law. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or on a 15 contract, to the same effect as by, and with all the consequences which follow from, the same act done by his previous authority. Hence by the act of ratification, the agent is treated as having been authorized from the very beginning to act in the manner in which he did, and the principal would be liable for any foreseeable damage that flows from the act or 20 omission that was ratified. See Raju Rajaram Pillai (T/A Dhanveer Enterprise) V MMC Power Sdn Bhd & Anor [2000] 6 MLJ 551; and Koh Yen Bee v. American International Assurance Co Ltd [2000] 7 MLJ 278. 18 Breach of the duty of care [22] Now, the next issue is whether the 1st, 2nd, 3rd and 4th Defendants had breached their respective duty of care. The evidence is quite extensive that the 1st and 2nd Defendants knew very well that the portable basketball hoop/post was obsolete and damaged, and that it needed to be replaced immediately. 5 The 1st and 2nd Defendants knew that the damaged basketball hoop/post could pose a danger to the students and they ought to have taken the necessary precautions to ensure that students do not use it or even go near it. The 2nd Defendant, as principal of the MRSM, ought to have ensured that proper signage were put up to warn the students of such danger, or to have the 10 damaged basketball hoop/post removed altogether from the basketball court. This they failed to do. And instead proceeded to have physical education classes in the proximity of this obvious danger. Hence, there was clear breach of the duty of care when the 1st Defendant carried on physical education classes in close proximity to the damaged basketball hoop/post, and exposing 15 the students, and in particular the Plaintiff, to the danger and risk of injury from the collapse of the basketball hoop/post. [23] The 4th Defendant ought to have removed the damaged basketball hoop/post from the basketball court when they were notified of its state of disrepair by the 2nd Defendant. The fact that there was insufficient funds to 20 19 attend to the repair to the basketball court and the replacement of basketball hoop/post does not absolve the 4th Defendant of liability. Whilst waiting for the funds to become available or allocated by the 5th Defendant, the 4th Defendant could have taken proactive measures to remove the basketball hoop/post and the imminent danger that it posed to the staff and students of 5 the MRSM. [24] The 4th Defendant did in fact expose the Plaintiff to the risk of injury by his failure to ensure that the basketball hoop/post was promptly removed and replaced when the 3rd Defendant made a request for its replacement in September 2011. The defect to the basketball hoop/post was known to the 4th 10 Defendant, via the 3rd Defendant’s notification since sometime in September

Hence, there is clear breach of the duty of care on the part of the 4th Defendant. Causation [25] In Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn Bhd & 15 Anor [2011] 1 CLJ 409, FC the Federal Court confirmed that in: ... a negligence claim, there must be a link between the wrong doing and the damage caused. The burden of proving this link is on the plaintiff. 20 Hence, it is trite that in a claim for negligence, the Plaintiff would have to establish on a balance of probabilities that “but for” the Defendants’ breach of duty of care, the injury and/or damage would not have occurred. This was reiterated by the Court of Appeal in Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd & Ors and other appeals [2013] 2 MLJ 29, in the following 5 terms: It is trite law that in an action for negligence, the plaintiff has to prove that the defendant’s act was the effective cause of the injury suffered by the plaintiff. Without a causative link being established by the plaintiff, the claim cannot succeed. [26] However, where combined or several causes contribute to the 10 wrongdoing or harm, the 'but for' test may not be suitable. The ‘material contribution’ test may be more appropriate in such circumstances. Thus, the Supreme Court of Canada in Clements v Clements 2012 SCC 32 had well summarised the legal test of causation as follows: ... the basic rule of recovery for negligence is that the plaintiff must establish on a 15 balance of probabilities that the defendant caused the plaintiff’s injury on the ‘but for’ test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of ‘material contribution to risk of injury’, without showing factual ‘but for’ causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of 20 negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact caused it. In these cases, the goal of tort law and the underlying theory of corrective justice require that the defendant not be permitted to 21 escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of injury. This pronouncement of the Supreme Court of Canada has been adopted and applied by Malaysian courts in several cases. [27] The fact of the matter is that in the present case the parties do not 5 dispute that the Plaintiff’s injuries and her current disabilities were caused by the portable basketball hoop/post collapsing and falling onto her back. The facts as discussed above shows that but for the breach by the 1st to 4th Defendants of their respective duty of care, the Plaintiff would not have suffered the injuries and the damages sustain. 10 [28] Apart from that, I also find that the 1st to 4th Defendants have materially contributed to the Plaintiff’s injury by their failure to ensure that the aged and damaged portable basketball hoop/post is removed from the basketball court where the MRSM students carried on their school’s extra curricular activities; and by their failure to ensure that proper signage or notices are posted at the 15 vicinity of the basketball court giving adequate warning as to the dangers posed by this aged and damaged basketball hoop/post which was in imminent danger of collapse. Further, the 1st to 3rd Defendants had materially contributed to the Plaintiff’s injury by failing to ensure that the MRSM students, and in particular the Plaintiff who was under their care, do not go 20 22 near the said portable basketball hoop/post on account of the imminent danger posed by it to users and occupiers of the basketball court. [29] Hence, I find that the Plaintiff has successfully established the causal link between the 1st, 2nd, 3rd and 4th Defendants’ breach of duty of care and the damages suffered. 5 Vicarious Liability [30] The general rule is that an employer is vicariously liable for a tort committed by an employee in the course of his or her employment. It is trite law that when an injury or loss is caused to a third person by the wrongful act of an agent acting within the scope of his authority his principal is jointly and 10 severally liable with him. See: Yeo Tin Sang v. Lim Choo Kee [1960] 1 LNS 164. The principle of the employer being responsible for the act of its employee, in the course of his employment, was applied in its full force in Keppel Bus Co. Ltd v. Sa'ad bin Ahmad [1972] 1 LNS 53. The key to attributing vicarious liability is that wrongful act must have been done 'in the course of employment’. In 15 Samin bin Hassan v. Government of Malaysia [1976] 1 LNS 139 the Federal Court explained the term ‘in the course of employment’ as follows: This appeal is concerned with the liability of the master for his servant. The master should shoulder the servant's liability if at the material time the servant was acting in the course of the employment and for the business of the employer. The meaning of 20 23 the words "in the course of employment" was fully considered by the House of Lords in Davidson v. M Robb, and the headnotes of the Law Reports read: "In the course of employment" does not mean during the currency of the engagement, but means in the course of the work which the workman is employed to do and what is incidental to it and absence on leave for the 5 workman's own purposes is an interruption of the employment (emphasis added). [31] In determining vicarious liability of an employer for the acts of his employee, the English Court of Appeal in Mohamud v. WM Morrison Supermarkets plc [2014] 2 All ER 990 approved of a two-stage test. The first 10 stage involves a consideration of the relationship between the primary wrongdoer and the person alleged to be liable and whether that relationship is capable of giving rise to vicarious liability. The second stage relates to whether there is a sufficiently close connection between the wrongdoing and the employment so that it would be fair and just to hold the employers vicariously 15 liable. Hence, the approach is to concentrate on the relative closeness of the connection between the nature of employment and the particular tort (Bernard v. Attorney General [2005] 2 LRC 561). This test found favour with our Court of Appeal in Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 CA. 20 [32] The 3rd Defendant as the statutory body vested with responsibility to manage and administer the MRSM, including but not limited to the 24 employment of teachers and selection of students and setting the rules and regulations governing the operations of the MRSM, would be vicariously liable for the breach of any duty of care owed by the teacher to the student. The 3rd Defendant is also the employer of both the 1st and 2nd Defendants. Hence, the 3rd Defendant would be vicariously liable for injury caused to any third person 5 arising from the acts or omissions of the 1st or 2nd Defendants that were carried out during their normal course of duty. Thus, the breaches of duty of care by the 1st and 2nd Defendants, who are respectively teacher and principal of the MRSM, and who are under the employment of the 3rd Defendant, would clearly give rise to vicarious liability. 10 [33] As for the vicarious liability of the 5th Defendant, the learned Senior Federal Counsel submits that the 5th Defendant is not vicariously liable for acts or omission of the 4th Defendant for two reasons:

Firstly, the Learned Senior Federal Counsel contends that the Plaintiff has failed to identify the exact public officer who is said to be the 15 tortfeasor, which according to the learned Senior Federal Counsel is necessary and vital in order to attribute liability vicariously to the 5th Defendant. In this regard, the learned Senior Federal Counsel has referred to the case of Kerajaan Malaysia & Ors v Lay Kee Tee [2009] 1 MLJ 1. 20 25

Secondly, based on section 5 of the Government Proceedings Act 1956, which states that “the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable ...”, the learned Senior Federal Counsel submits 5 that the 4th Defendant, a Federal Government Minister is not a “public officer” within the meaning of section 5 on account of the pronouncement of the Court of Appeal in Tun Dr Mahathir bin Mohamad & Ors v Datuk Seri Mohd Najib bin Tun Haji Abdul Razak [2017] MLJU 1941 to the effect that a Minister is a ‘member of the 10 administration’ and not a ‘public officer’ within the definition accorded to it by section 5 of the Government Proceedings Act 1956, read together with section 3 of the Interpretation Act, and Article 132(1) of the Federal Constitution. According to the Court of Appeal a ‘public officer’ by statutory definition only refers to a member of the ‘public 15 services’ and not a ‘member of the administration’. [34] I am, with respect, unable to accept both the arguments. Firstly, the Plaintiff has identified the 4th Defendant, i.e. the Minister of Defence, who is under the employ of the 5th Defendant, the Government of Malaysia, as the 26 tortfeasor. The Federal Court in Kerajaan Malaysia & Ors v Lay Kee Tee [2009] 1 MLJ 1 held that: ... on the proper construction of ss 5 and 6 of Act 359, in any claim in tort against the government, the officer of the government who was responsible for the alleged tortious act must be made a party and his liability be established before the 5 government can be made liable vicariously as principal. It would be insufficient to merely identify the officer without joining the officer as a party because liability by evidence needs to be established. It is only upon a successful claim against the officer personally can a claim be laid against the government. In the present case, I find that the tortfeasor, i.e. the officer of the government 10 responsible for the alleged tortious act, has been properly identified and named as party, and that person is the 4th Defendant. The Plaintiff had pleaded in paragraph 5 and 6 of the Statement of Claim as follows:

Defendan Keempat pada setiap masa yang material adalah pihak yang bertanggungjawab terhadap Kem Terendak, Melaka yang menyediakan dan 15 menyelenggara kesemua bangunan, infrastuktur dan segala kemudahan yang terdapat di dalam Maktab Rendah Sains MARA Kem Terendak, 76200 Terendak, Melaka.

Defendan Kelima adalah Kerajaan Malaysia dan pada sepanjang masa yang material Defendan Pertama, Kedua, Ketiga dan Keempat adalah agen 20 dan/atau pengkhidmat Defendan Kelima, Kerajaan Malaysia iaitu principal mereka dan dengan itu Defendan Kelima adalah pihak yang bertanggungjawab terhadap pengendalian, penyeliaan dan penyelengaraan segala urusan pelajaran dan pembelajaran di Maktab Rendah Sains MARA Kem Terendak, 76200 Terendak, Melaka dan bertanggungjawab secara 25 vikarius ke atas semua tindakan-tindakan yand dilakukan oleh guru-guru 27 khususnya guru yang terlibat secara langsung ketika proses pengajaran dan pembelajaran Plaintif. And the 4th and 5th Defendants in paragraph 2 of their Defence dated 22.8.2016, in reply to the Plaintiff’s averment in paragraph 5 of the Statement of Claim, state as follows: 5 2. Perenggan 5 Pernyataan Tuntutan Plaintiff adalah diakui setakat bahawa Defendan Keempat bertanggungjawab didalam hal pentadbiran Kem Terendak, Melaka, penyataan lain adalah dinafikan.

Merujuk perenggan 6 Pernyataan Tuntutan, Defendan Keempat dan Kelima menegaskan bahawa tanggungjawab vikarius hanya timbul jika syarat-syarat 10 Seksyen 5 dan 6 Akta Prosiding Kerajaan 1956 dipenuhi.

Sebaliknya, Defendan Keempat dan Kelima menegaskan bahawa Defendan Keempat hanya menyelenggarakan bangunan yang melibatkan kejuruteraan awam, elektrikal, mekanikal, kumbahan dan anai-anai yang dilaksanakan oleh Bahagian Perkhidmatan Kejuruteraan Perkhidmatan Kem Terendak, 15 bergantung kepada aduan dan/atau permintaan oleh pentadbiran Maktab Rendah Sains MARA dan juga bergantung kepada peruntukkan kewangan oleh Kementerian Pertahanan. Defendan Keempat dan Kelima seterusnya menegaskan bahawa Maktab Rendah Sains MARA Ken Terendak juga mendapat peruntukkan bagi penyelenggaraan harta modal daripada 20 Defendan Ketiga dan pihak-pihak lain yang meberikan sumbangan. Hence, from the totality of the pleadings and in particular the 4th and 5th Defendant’s Defence, there is clear identification of the alleged tortfeasor, and the vicarious liability of the 5th Defendant has been clearly pleaded and admitted to, albeit conditionally, by the 4th and 5th Defendants. 25 28 [35] As for the argument that vicarious liability cannot attach to the 5th Defendant because the 4th Defendant is not a public officer; I do not find any substance in it. The fact remains that the 4th Defendant is in charge of the maintenance of the buildings and infrastructure of the MRSM, as well as the facilities, and this has been admitted to in paragraph 4 of the 4th and 5th 5 Defendant’s Defence. There is clear admission that the 4th Defendant would undertake the repair and maintenance of the facilities at the MRSM upon a request being made by the 3rd Defendant to the Bahagian Perkhidmatan Kejuruteraan Perkhidmatan Kem Terendak, which is under the purview of the 4th Defendant. In fact, the 3rd Defendant had made written requests for the 10 removal and replacement of the portable basketball hoop/post before and after its collapse that caused injury to the Plaintiff, and this was finally attended to by the Bahagian Perkhidmatan Kejuruteraan Perkhidmatan. The 5th Defendant, who is the 4th Defendant’s employer, and the ultimate owner of the premises where the MRSM is situated and the basketball court on which 15 the collapsed portable basketball hoop/post had stood, is the principal of the 4th Defendant, who is its agent. [36] It is well recognized by high authority that vicarious liability of the government can arise both through the statutory provisions of section 5 and 6 of the Government Proceedings Act, 1956, as well as based on common law 20 29 principles of principal and agent; or employer and employee; or master and servant. These common law principles have been consistently applied by our courts such that they have become part and parcel of the body of Malaysian case law. [37] The principle of the employer being responsible for the act of its 5 employee, in the course of his employment, was applied in its full force by the Singapore Court of Appeal in Keppel Bus Co. Ltd v. Sa'ad bin Ahmad [1972] 1 LNS 53, which in turn had referred to the case of Canadian Pacific Railway Co v. Lockhart [1942] AC 591 @ 599. This was affirmed by the Privy Council in Keppel Bus Co. Ltd. v. Saad bin Ahmad [1974] 1 MLJ 191 as follows: 10 It is clear that the master is responsible for acts actually authorised by him for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to an employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts 15 which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorises his servants to do, but also for the way in which he does it. On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the 20 authorised act as to be a mode of doing it, but is an independent act, the master is not responsible for in such a case the servant is not acting in the course of his employment, but has gone outside of it. 30 [38] Suriyadi Halim Omar JCA (as he then was) in Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 CA, in finding the Government of Malaysia vicariously liable for the acts of the other defendants (government employees), applied the principles of vicarious liability enunciated in Keppel Bus Co. Ltd, and had also referred to the dicta in Dyre and Wife v. Munday & Anor [1895] 2 5 QB 742, CA where Lord Esher MR ruled: The liability of the master does not rest merely on the question of authority, because the authority given is generally to do the master's business rightly; but the law says that if, in the course of carrying out his employment, the servant commits an excess beyond the scope of his authority, the master is liable. 10 And in the same case Lopes LJ remarked: The law says that for all acts done by a servant in the conduct of his employment, and furtherance of such employment, and for the benefit of his master, the master is liable, although the authority that he gave is exceeded. [39] The application of the common law principles of vicarious liability arising 15 from an employer/employee relationship, independently of the statutory liability that is stipulated in section 5 of the Government Proceedings Act 1956, was given tacit recognition by the Federal Court in Tan Wei Hong & Ors v. Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425, where Ramly Ali FCJ held that: 20 [66] The Government of Malaysia was named as the fifth defendant in the plaintiffs' action. The plaintiffs' claim against the fifth defendant was based upon the 31 principle of vicarious liability applying to the fifth defendant as the employer of the third and fourth defendants; and the fifth defendant's duty to manage the disappearance of flight MH370 with due care, respect, transparency and accountability. [67] The principle of vicarious liability is a principle at common law where one 5 person is liable for the derelict of another. It applies to an employer and employee relationship. Thus, in law, an employer is liable for the damage caused by the delict of his employee, committed while acting within the course and scope of his duties as an employee. It is the duty of an employer to ensure that no one is injured or damaged by the employee's improper conduct or negligence in carrying on his work 10 (see: Feldman (Pty) Ltd v. Mall [1945] AD 733). [68] Statutorily, the liability of the fifth defendant as the Government is governed by s. 5 of the Government Proceedings Act 1956, which provides:

Subject to this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same 15 manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be 20 deemed to be the agent of and to be acting under the instructions of the government. [69] In the present appeal, having dismissed the third defendant's appeal, as a result of which the third defendant remains as a defendant to the plaintiffs' action, we were of the view that the fifth defendant must also remain as a defendant in 25 this action as named in the writ on the principle of vicarious liability and by virtue of s. 5 of the Government Proceedings Act 1956. (Emphasis added) 32 [40] Vicarious liability of the Government of Malaysia for the wrongful acts of its servants and/or employees and/or agents has been well recognized. This principle was applied to tortious wrong doings by all government servants, employees and agents, without any class exception. To now take a narrow reading of the words “public officer” in section 5 of the Government 5 Proceedings Act 1956 and discard the application of this principle to certain class or categories of government employees, such as Ministers, would mean that the principle of vicarious liability becomes applicable only to wrongful tortious acts of certain classes of government servants or employees and not others. It would amount to selective application of a principle which had 10 always been broadly and universally applied. This would also mean that for wrongful tortious acts of say a Minister, the Minister would have to be personally liable as the government cannot be made vicariously liable. This cannot be the intended purpose of the legislation. The legislature must have intended that the government’s vicariously liability must arise, without 15 exception, from the wrongful tortious acts of all its servants, employees, and agents. It was for that reason that the Federal Court in Kerajaan Malaysia & Ors v Lay Kee Tee [2009] 1 MLJ 1 had held that: ... on the proper construction of ss 5 and 6 of Act 359, in any claim in tort against the government, the officer of the government who was responsible for the alleged 20 33 tortious act must be made a party and his liability be established before the government can be made liable vicariously as principal. (Emphasis added) The use of the words “officer of the government” by the Federal Court in that judgment must have been deliberate, for it gives a much wider and clearer meaning to the term “public officer” as used in section 5 of the Government 5 Proceedings Act 1956, such that the wrongful acts or omission of all officers of the government, meaning all employees of the government, and not just some, can give rise to vicarious liability. To interpret section 5 of the Government Proceedings Act 1956 in any other way would result in absurdity. Applying the dicta of the Federal Court in Kerajaan Malaysia & Ors v Lay Kee 10 Tee (supra), the 4th Defendant, a Federal Minister, would definitely be an “officer of the government” and section 5 of the Government Proceedings Act 1956 would thus be applicable to cover any tortious acts of the 4th Defendant and concomitantly assign liability to the 5th Defendant. And with that, the 5th Defendant must jointly and severally bear the burden of the 4th Defendant's 15 liability. Joint and Several Liability [41] In the present case we have a situation involving several independent tortfeasors. The question that arises is whether there ought to be an apportionment of responsibility between them under an order of court to 20 34 determine the proportion of damage which each tortfeasor should pay. A similar question arose for consideration by the Federal Court in Malaysian National Insurance Sdn Bhd v Lim Tiok [1997] 2 MLJ 165 and Edgar Joseph Jr FCJ held at p.186 as follows: ... at common law, if each of several persons, not acting in concert, commits a tort 5 against another person substantially contemporaneously and causing the same or indivisible damage, each tortfeasor is liable for the same damage (see Oli Mohamed v Keith Murphy & Anor [1969] 2 MLJ 244 at pp 245 col 2E to 246 col 1A, per Choor Singh J applying Dingle v Associated Newspapers Ltd & Ors [1961] 2 QB 162 and Drinkwater v Kimber [1952] 2 QB 281). 10 In Dingle v Associated Newspapers Ltd [1961] 2 QB 162 Devlin L.J. said at page 188: "… Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there 15 are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, 20 it is immaterial to the plaintiff whether they are joint tortfeasors or not. If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month's wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the 25 consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for 35 this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law …." Applying this well established principle, since the indivisible damage suffered by the Plaintiff is the conjoined effect of separate and independent acts of the 1st, 2nd, 3rd and 4th Defendants, who are independent tortfeasors, each of them 5 is jointly and severally liable for the whole of the damages sustained by the Plaintiff. However, for the purposes only of any claim for indemnity or contribution inter se between the Defendants, if the judgment is enforced by the Plaintiff against any one but not the other Defendants, then there would be a need to apportion liability between the Defendants. In that regard, based 10 on the respective breaches of duty of care, I find that the 1st, 2nd and 3rd Defendants are 50% liable and the 4th and 5th Defendants are 50% liable. Plaintiff’s injuries and disabilities [42] The various medical reports and evidence tendered by the Plaintiff shows that as a result of the injury sustained from the falling collapsed 15 basketball hoop/post, she suffered the following medical injury/conditions:

Spinal cord injury.

(ii) Fracture dislocation of T11/T12 with severe anterolisthesis with spinal canal stenosis. 36

(iii) Fracture of 8th and 9th ribs.

(iv) Complete paralysis of both lower limbs.

Sensory impairment below umbilicus.

(vi) Complete loss of sensations below groin fold.

(vii) Neuropatic pain – both lower limbs.

(viii) Urinary incontinence with partial urinary retention.

(ix) Constipation requiring alternate day enema administration.

Fecal incontinence. [43] Further, evidence also shows that as a result of her medical injuries/condition, the Plaintiff:

cannot enjoy free movement as a result of the lower limb paralysis and needs a wheelchair to move about;

cannot lead the life of a normal person;

needs to make lots of adjustments to her daily routine; 37

lost the chance of continuing her studies at the MRSM Kem Terendak as the buildings and facilities were not wheelchair friendly and as such had to transfer to another school in Seremban;

would have lesser prospects of marriage;

can only have passive sex and would not be able to experience the 5 pleasures of sexual relations; and

though a paraplegic can conceive children, but it would be extremely difficult for her to take care of them, especially in the initial years. Damages [44] The principle of law as it relates to the award of damages for personal 10 injuries is that it is compensatory in nature, as was reiterated by the Federal Court in Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324, in the following terms: It has to be borne in mind that damages for personal injuries are not punitive and still less a reward. They are simply compensation that will give the injured party 15 reparation for the wrongful act and for all the natural and direct consequences of the wrongful act, so far as money can compensate. British Transport Commission v. Gourley (supra) and H. West & Son Ltd v Shephard [1963] 2 All ER 625. The award under general damages should be a global sum commensurate with the injury sustained and not a full compensation which might result in ruinous consequences 20 38 to the defendant. (Per Sir Alexander Cockburn, L.J. in Phillips v South Western Railway Co (1879) 4 QBD 406. Thus, in assessing the quantum of damages to be awarded to the Plaintiff, I have taken guidance from the above pronouncement of the Federal Court.

Special damages 5 The following items under special damages were allowed as they have been proved:

Cost of medical reports - RM2,080.00

Travelling expenses to Hospital Melaka (RM100 x 20 days) - RM2,000.00 10

Travel expenses to Seremban Hospital (RM50 x 33 days) - RM1,650.00

Travel expenses for follow-up at Seremban Hospital (RM50 x 69 days) - RM3,450.00

Travel cost to Seremban Hospital 15 6 monthly rehabilitation for 26 years, i.e. until the age of 45 at RM100 per year - RM2,600.00 39

Medical expert (PW4) attendance cost for court appearance - RM2,385.00 Total RM14,165.00

(ii) General Damages

Pain and suffering and the loss of amenities of life 5

The learned counsel for the Plaintiff submits that in Fitri Noor Bin Samdin v Siti Nooradawiyah Binti Othman & Anor [2016] 2 PIR 49, the plaintiff suffered paraplegia with bladder and bowel incontinence, and the court awarded the sum of RM350,000.00 as general damages for pain and suffering and contends that in keeping with the current trend of award 10 for such injuries a sum of RM400,000.00 ought to be awarded. Further, learned counsel submits that there ought to be an additional award of RM10,000.00 for the two broken ribs suffered by the Plaintiff on account of the award of RM4,000 for one fractured rib in Muhamad Nur Hemy Bin Mohd Surah v Mohamad Syahamirul Aizat Bin Mohd Ali & Anor 15 [2016] 1 PIR 66.

(ii) The learned Senior Federal Counsel on the other hand argues that a sum of RM250,000.00 be awarded globally for pain and suffering. However, I 40 have noted that the cases referred to by the learned Senior Federal Counsel are much older than that referred to by learned counsel for the Plaintiff. The court must have regard to the current trend of awards for compensation in personal injury cases. See Dr Yusuff B Hj Mansur v Changkat Jering Sdn Bhd [1997] 5 MLJ 530. The Plaintiff’s condition is 5 not too dissimilar from Fitri Noor Bin Samdin v Siti Nooradawiyah Binti Othman & Anor and in keeping with the general trend of awards, I find that the global sum of RM360,000.00 for pain and suffering arising from paraplegia with bladder and bowel incontinence (neurogenic bladder and bowel), urinary tract infection, as well as the two broken ribs, would 10 be fair and reasonable under the circumstance. Thus, the sum of RM360,000.00 is awarded for pain and suffering and loss of amenities of life.

Cost of Future Care

The Plaintiff’s life expectancy 15 According to the testimony of PW4 and DW5, taking into account the Plaintiff’s age and medical condition, they opined that her life expectance would be for another 43 to 45.5 years from the date of the injury. 41 Learned Senior Federal Counsel relying on Bujang bin Mat & Anor v Lai Tzen Hai & Anor [2004] 6 MLJ 376, submits that there ought to be a deduction of 1/3 for contingency and vicissitudes of life on the remaining years, and hence according to the learned Senior Federal Counsel the multiplier would be 27 for the remaining years of purchase. 5 However, learned counsel for the Plaintiff argues that the evidence of the experts was that the Plaintiff is expected to live for another 45 years and that should be the multiplier in determining her cost of future care and counsel further argues that there should be no further deduction for contingencies as no evidence for this deduction was ever lead by the Defendants. 10 I have taken 45 years as the remaining life expectancy of the Plaintiff, which is also based on chart (Exhibit P20) referred to by PW4, and I find that this is the proper multiplier for calculating cost of future care.

(ii) Cost of domestic helper/driver The learned Senior Federal Counsel submits that the sum to be awarded for 15 the domestic helper should be RM162,000.00 (RM500 x 27). However, learned counsel for the Plaintiff submits that the cost of an Indonesian domestic helper is RM750.00 per month as confirmed by PW4, and the cost of a driver is RM750.00 per month. There is evidence to show that the Plaintiff will need 42 both domestic help and a driver. I therefore allowed the sum of RM810,000.00 as cost of domestic help and driver – RM1,500.00 x 12 x 45 = RM810,000.00.

(iii) Hospital Bed There is sufficient evidence showing that the Plaintiff would need a hospital bed with High-Low function and cof-side railings and mattress which has a life 5 span of 8 years and that costs RM2,400.00. Hence, for 45 years she would need several changes of the bed and the total cost would be RM13,500.00, and this amount is allowed.

(iv) Pressure relieving mattress This specialized mattress is necessary for the prevention of bed sores and the 10 cost of it is RM1,000.00 with a life span of 5 years. Hence, there would be a total of 9 mattresses over 45 years at a total cost of RM9,000.00, and this amount is allowed.

Wheelchair & Commode Wheelchair Aluminum Frame There are various types of wheelchairs in the market. I find that the one that 15 costs RM1,200.00 each with a 5 year life span is sufficient for the Plaintiff’s use. The Commode Wheelchair Aluminum Frame, which is necessary for the Plaintiff costs RM933.45 each. Hence the total cost of the wheel chair and 43 Commode Wheelchair Aluminum Frame is RM2,133.00 x 9 = RM19,197.00, and this amount is allowed.

(vi) Wheelchair seat cushion The Plaintiff requires wheelchair sheet cushion that costs RM450.00 each with a life span of 4 years. Hence the total cost for this item is RM5,062.50, which is 5 allowed.

(vii) Diapers The Plaintiff needs adult diapers to take care of the bladder and bowel incontinence. The cost per month is RM240.00. Hence the total cost for 45 years is RM240 x 12 X 45 = RM129,600.00, and this sum is allowed.

(viii) Urinary Catheter The Plaintiff requires urinary catheters to attend to help empty her bladder from time to time and the cost of it per month is RM40.00. Hence the total cost for 45 years would be RM40.00 x 12 x 45 = RM21,600.00, which amount is allowed.

(ix) Incontinence Sheets 44 The Plaintiff’s mattress needs to be covered with disposable incontinence sheets that cost RM22.50 per month. Hence for 45 years, the total cost is RM22.50 x 12 x 45 = RM12,150.00, which amount was allowed.

Clinical Gloves The Plaintiff and her caregivers require clinical gloves when cleaning her. The 5 cost per month is RM17.00. Hence for 45 years, the total cost would be RM17 x 12 x 45 = RM9,180.00, which amount was allowed.

Interest

Interest on special damages was fixed at 4% per annum from the date of injury.

(ii) Interest on general damages was fixed at 5% per annum from date of Writ till judgment.

(iii) Thereafter, at 5% per annum on the entire judgment sum from date of judgment.

Cost 15 45 Cost of the action was fixed at RM50,000.00 to be borne jointly and severally by all the Defendants. Orders accordingly. Dated this 26th day of February 2019. 5 Vazeer Alam Mydin Meera Judge High Court in Malaya 10 15 46