Rosazial Bin Muhamad v Rajendran A/L Ramasamy (BA-11B-80-10/2016)

This is an appeal against the decision of the Magistrate regarding quantum involving road accident case. The Magistrate decided that the Defendant is liable at 90% and the Plaintiff is liable at 10%. The quantum appealed is on the injury Closed Segmental Fracture of Right Tibia and Closed Comminuted Fracture of Proximal Third Right Fibula and multiple scars and for loss of future earnings.

In this judgment the parties will be known as they were in the Magistrate’s Court.

Having perused the written submissions, the Appeal Records and the written judgment of the learned Magistrate, partial appeal is allowedwith costs where the general damages of RM 35,000.00 and the award for scars (RM 4,000.00) are retained and for loss for future earnings is dismissed. My ground below follow.

The facts leading to this appeal can be summarised as follows:

At all material time, the Plaintiff was a pedestrian. The Plaintiff claimed that on 16.12.2016, the Plaintiff was standing at the road shoulder of Jalan Kuala Lumpur-Ipoh towards Selayang 3 (Rawang),about 100 meters away from the lorry WFU 3520 that was parked at the road shoulders with emergency lights switched on with triangle signage and coneslaid out. However, the motorcycle ridden by the Defendant bearing registration number WXB 8301 travelling from the same direction had lost control and collided into the Plaintiff. The Plaintiff claimed that the cause of the accident was due to Defendant’s negligence and as a result, the Plaintiff suffered injuries, damage and losses.

The Plaintiff claimed for losses suffered (pages 15-16 of Appeal Record) where Plaintiff suffered injury Closed Segmental Fracture of Right Tibia and Closed Comminuted Fracture of Proximal Third Right Fibula, and loss of actual earnings and /or loss of earning capacity/ loss of future earnings.

The Defendant on the other hand denied that the accident was caused by his negligence and detailed the accident was caused by the Plaintiff’s negligence, among others claimed that the Plaintiff had crossed the road when it was not safe and that failed to see the presence of Defendant riding his motorcycle.

The Defendant was ordered to pay the sum RM45,000.00 as general damages with interest of 5% per annum from date of summons until the date of Judgment where RM 35,000.00 is for the Plaintiff’s tibia and fibula injuries and scars at RM4,000.00. The Defendant was ordered to pay the sum of RM18,000 for 4 loss of actual income with 2.5% interest per annum from the date of accident until the date of Judgment.

Dissatisfied with the Judgment, the Defendant appealed to this Court. Defendant’s submission [5] Briefly, the learned counsel for the Defendant submitted that the award for the tibia and fibula injuries and multiple scars should be globally awarded as they occurred on the same leg, meaning that they stem from the same injury: Chong Che Khong & Anor v Ng Yeow Hin (97) 5 MLJ

[6] In relation to the loss of future earnings, the counsel for the Defendant submitted that the question arise would be whether the Plaintiff was earning from a gainful employment, on the balance of probabilities. It is submitted that although there isa pay slip tendered by the Plaintiff (page 7 of Supplementary Appeal Record (1)) with basic salary of RM1,500.00, the Plaintiff was not employed prior to the accident as the Plaintiff’s employer had testified that he will bring the SOCSO document as claimed to be at his office (page 9 of Supplementary Appeal Record (1)) but however failed to tender the said document until today. The counsel for the Defendant further submitted that there was no income tax of the Plaintiff where the employer whom testified that the Plaintiff sometimes earned RM3,000 – RM 4,000 (page 7 of Supplementary Appeal Record (1)), could be proven. 5 [7] The Defendant’s counsel relied on the case Tan Kuan Yau v Suhindrimani [1985] 1 CLJ 429, Federal Court which stated that, “it is clear law that special damages must not only be pleaded but proved.” [8] The Defendant’s counsel also submitted that the Magistrate had erred in awarding loss of future earnings when the medical certificates of the Plaintiff from 16.12.2014 – 6.7.2015 were for 7 months and there were medical certificates from 21.1.2016 – 17.2.2016 where there was a 5 months gap from the first 7 months, to which the Plaintiff testified that all medical certificates had been submitted to his solicitor, there was not documentary proof for the unreasonable lapse of time and no proof by way of follow up for medical appointment card. It is submitted that the Magistrate did not explain on the gap of 5 months based on dates of the medical certificates tendered. Plaintiff’s submission [9] The learned counsel for the Plaintiff submitted that the Magistrate was not erred on fact and law on the award that warrants this Court to intervene. It is submitted that the award was not manifestly low nor was it manifestly excessive: Tan Kuan Yau v Suhindrimani Angasamy [1985] 1 CLJ 429; [1985] CLJ (Rep) 323, FC. [10] In relation to Plaintiff not returning to work, it is submitted that this fact was not challenged by the Defendant’s counsel. The counsel for the 6 Plaintiff submitted that the Plaintiff was working with his employer prior to the accident and then stop working for a while before resuming with the employer in November 2014. [11] The Plaintiff’s counsel averred that the rate at RM1,500.00 is not excessive and was not challenged by the Defendant’s counsel, the questions raised by the Defendant’s counsel was pertaining to the documents only. APPEAL [12] The legal position is clear and can be found in a number of great authorities that an appellate court should but rarely interfere with conclusion arrived at by the trial judge who has had the advantage of hearing the witnesses unless it is satisfied that the trial judge was plainly wrong in lawor has made a wholly erroneous estimate of damage suffered. This Court refers to the Federal Court case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 where the test is the ‘plainly wrong test’ to warrant the appellate court to interfere and therefore the fact finder’s decision that is by the trial judge cannot be disturbed on appeal unless the trial judge was plainly wrong in law. [13] The claim for damages must be based on evidence and the standard is on balance of probabilities. This is as decided by the Federal Court in the case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors 7 [2016] 1 PIR [16]; [2016] 2 CLJ 885 where YA Abdull Hamid Embong FCJ (as he then was), had occasion to say, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future.” [14] This Court viewed that for the tibia and fibula injuries, based on both specialist reports of the Plaintiff’s and the Defendant’s, reported the finding of the injuries suffered by the Plaintiff that there were fractures and wasting found on the right thigh muscle at 2cm. This is the finding of fact made by the Magistrate as reflected in her written judgment (pages 17 of Supplementary Record of Appeal (1)). [15] I do not see that the Magistrate was plainly wrong in law in her awards for the injuries and had made reference to both medical reports and referred to the Compendium of Personal Injuries where the range is between RM19,500 to RM38,500 for injuries involving tibia and fibula. The Magistrate had also considered the case laws submitted by both counselswhere the comparisons as to the decided awards were made (pages 17 – 18 of Supplementary Appeal Record (1)). I viewed that the 8 award of RM35,000.00 for tibia and fibula with wasting of 2cm and the award of RM4,000 for scars, are not excessive. [16] Claims for loss of earnings and loss of future earnings had been extensively discussed in many great decisions and I rely on the case decided by the Federal Court in Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ 294. [17] Based on the case of Ngooi Ku Siong (supra), there are elements to be proven if the claimant cannot go back to work completely. This Court finds that the Magistrate however have accepted the evidence of the Plaintiff’s employer even without the salary slips and SOCSO document to proof employment by relying on the case of Renhome Bricks Factory Sdn Bhd & Anor v Watah Umpin [2009] 9 CLJ 494. [18] Based on Ngooi Ku Siong (supra), there is difference between loss of future earnings and loss of earning capacity where both are under general damages. The Federal Court in Ngooi Ku Siong (supra) held that, “…Future loss of earnings or loss of prospective earnings are awarded for real assessable loss that is loss that is capable of assessment at the date of trial. It must be proved by evidence and not by mere speculation.” [19] Based on the facts and evidence before this Court, I find that there is no evidence adduced by the Plaintiff on the 5 months gap based on the medical certificates exhibited (pages 53 – 54 of Appeal Record). Based on 9 the Plaintiff’s employer’s testimony during cross-examination, there is no proof that the Plaintiff was earning prior to the accident, there was no SOCSO document nor employment contract adduced to prove that the Plaintiff was employed by the employer (SP2) (pages 8-9 of Supplementary Appeal Record (1)): “Rajendran ada sign bukti sbg pekerja? J: tiada sign apa Apa-apa contract pekerjaan? J: sbb pekerja driver kadang dtg kerja dan kemudian berhenti Macam mana boleh terima kerja macam tu saja? J: Sebelum ini dlm 2-3 tahun lepas dia pernah kerja dengan saya. Memang kenal dia. Sekampung.” [20] This Court finds that the Plaintiff’s witness SP2 could not remember whether the Plaintiff was on medical leave which proves to show the discrepancy in evidence between the Plaintiff and the Plaintiff’s witness SP2 (page 9 of Supplementary Appeal Record (1)): “Pada November 2014, dia ada cuti? J: tak ingat.” This Court also finds that there is no evidence including the medical reports to state that the Plaintiff can no longer work in the future or that there is a 10 substantial risk of diminishing capacity to work. This Court viewed that the Magistrate was wrong in law to disregard the evidence obtained during the cross-examination of Plaintiff’s witness: Tan KuanYau v Suhindrimani s/o Angasamy [1985] 1 CLJ 429, Federal Court. [21] In light of the above reasons, the award for injuries of tibia and fibula and multiple scars are retained and I dismissed the award for loss of future earnings. Partial appeal is allowed with costs. Dated: 28 June 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court 11 COUNSEL FOR APPELLANT/DEFENDANT SEAN CHRISTEPHER DENIS Messrs Azim, Tunku Farik Advocates & Solicitors Unit 5-03, 5th Floor Straits Trading Building 2, Lebuh Pasar Besar 50050 Kuala Lumpur Tel: 03-2697 0355 Fax: 03-2693 8060 [Ref: 8.01.3352 (BK)] COUNSEL FOR RESPONDENT/PLAINTIFF ADELINA SHAMINI D’ CRUZ Messrs G. Dorai & Co. Advocates & Solicitors No. 7, Jalan Mawar 1 Taman Mawar 48000 Rawang Selangor Darul Ehsan Tel: 03-6093 6890 / 6891 Fax: 03-6093 3677 (Ref: PGD/12/0165/14/INS/sh)