Socar Mobility Malaysia Sdn Bhd v Gobalan A/L Arumugam, Sebagai Bapa yang Sah dan Penanggungan Kepada Pavithra Deiwi A/P Gobalan, Simati, untuk Diri Sendiri (JA-12B-25-04/2025)

[AS THE LAWFUL FATHER AND LEGAL REPRESENTATIVE OF PAVITHRA DEIWI A/P GOBALAN (DECEASED) FOR HIMSELF]

[AS THE LAWFUL MOTHER AND LEGAL REPRESENTATIVE OF PAVITHRA DEIWI A/P GOBALAN (DECEASED) FOR HERSELF]

VEKNESWARAN A/L BALAKRISHNAN …RESPONDENTS IN THE SESSIONS COURT AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM MALAYSIA WRIT NO. : JA-A53KJ-358-06/2023

[AS THE LAWFUL FATHER AND LEGAL REPRESENTATIVE OF PAVITHRA DEIWI A/P GOBALAN (DECEASED) FOR HIMSELF]

[AS THE LAWFUL MOTHER AND LEGAL REPRESENTATIVE OF PAVITHRA DEIWI A/P GOBALAN (DECEASED) FOR HERSELF]

[AS THE REPRESENTATIVE AND/OR ADMINISTRATOR OF THE

[AS THE REPRESENTATIVE AND/OR ADMINISTRATOR OF THE

VEKNESWARAN A/L BALAKRISHNAN …PLAINTIFFS

1.

SOCAR MOBILITY MALAYSIA SDN BHD [COMPANY NO. : 201701009617] …DEFENDANTS

This is Appellant (“the 2nd Defendant”), appeal against the decision of the Johor Bahru Sessions Court in Suit No. : JA-A53KJ-358- 06/2023 delivered on 27 March 2025 by the learned Sessions Court Judge (“SCJ”). The written grounds of judgment were subsequently released on 24 August 2025.

Before this Court are two matters –

the Appellant’s appeal on liability; and

the Respondents’ cross-appeal on both the apportionment of liability and certain heads of quantum. I shall deal with each in turn.

Parties filed in their written submissions together with a bundle of authorities and solely rely on it.

The essential facts, which are largely undisputed, are as follows.

On 21 June 2020, at approximately 7.15 pm, a Perodua Myvi bearing registration no. VCN 5537 (“the Car”) was involved in a road traffic accident near the intersection of Jalan Gaya 11, Johor Bahru. The Car was registered in the name of the Appellant, a car-sharing platform operator, and had been rented by the 1st Defendant, Saravanan A/L Balakrishnan (“the Driver”), through the SOCAR mobile application for the period of 1.00 pm to 9.00 pm that day.

The Car was carrying three persons at the material time : the Driver, the deceased Pavithra Deiwi A/P Gobalan (“the Deceased”), and Vekneswaran A/L Balakrishnan (“P5” or the “3rd Respondent”), both of whom were passengers. As the Car approached the intersection of Jalan Gaya 11, the Driver attempted to brake in order to turn right. According to the testimony of both the Driver and SP3, the brake pedal was non-responsive - it felt “kosong” (empty) and “keras” (hard) when pressed. The Driver also attempted to engage the handbrake, but this too failed to arrest the vehicle’s movement. The car crashed into the road shoulder and collided with a signboard. The Deceased was conveyed to Sultan Ismail Hospital, Johor Bahru, where she subsequently succumbed to her injuries.

P5 suffered serious injuries including an L3 compression fracture of the lumbar spine, rib fractures and other associated injuries. The Driver had been driving the Car for approximately 7 hours and had covered some 131 kilometres before the accident occurred.

The 1st Respondent, Gobalan A/L Arumugam, is the father of the Deceased. The 2nd Respondent, Aanathavali A/P Subramaniam, is the mother. They commenced the suit below in their personal capacities. The Driver was named as the 1st Defendant but failed to enter appearance. A Certificate of Non-Appearance was recorded against him on 24 October 2024. The trial proceeded between the Plaintiffs (now Respondents) and the Appellant alone.

The learned SCJ, having heard six days of evidence between March and December 2024, delivered her decision on 27 March 2025. On liability, the SCJ held that the Deceased bore no contributory negligence, attributed 10% liability to the Driver and 90% liability to the Appellant. The claims of the 1st, 2nd, and 5th Plaintiffs (now Respondents) against the Appellant were allowed with costs. The estate claims of the 3rd and 4th Plaintiffs were dismissed for failure to produce a Letter of Administration under Section 8 of the Civil Law (Amendment) Act 1956.

In arriving at her decision, the SCJ relied principally on four grounds–

the doctrine of res ipsa loquitur, inferring negligence from the occurrence of the accident;

reversal of the onus of proof, requiring the Appellant to show it could not have discovered the alleged brake defect through reasonable care;

an adverse inference under s 114(g) of the Evidence Act 1950 [Act 56] arising from the Appellant’s disposal of the Car; and

a direct duty of care owed by the Appellant as registered owner to passengers.

On quantum, the SCJ awarded bereavement of RM30,000.00 and loss of dependency of RM57,600.00 to the 1st and 2nd Respondents and general damages of RM14,000.00 (rib fracture) and RM40,000.00 (lumbar fractures) to P5 together with special damages. The SCJ rejected P5’s claims for loss of actual earnings and loss of earning capacity.

The Appellant appeals against the SCJ’s findings on liability. The grounds of appeal, as set out in the Memorandum of Appeal and the Supplementary Memorandum of Appeal may be grouped thematically as follows –

The Appellant contends that the SCJ erred in holding it liable on the basis of alleged brake failure where –

the PUSPAKOM certificate recorded brake condition as “tidak dapat diuji” (could not be tested), which is inconclusive rather than confirmatory;

the Investigating Officer (“IO”) confirmed during cross-examination that brake failure could not be proved;

the Driver testified that the brakes functioned throughout the entire 7-hour, 131km journey without any warning light and failed only instantaneously before the accident; and

no independent expert evidence was adduced to confirm mechanical brake failure attributable to maintenance default.

The Appellant argues that the attribution of 90% liability to it and only 10% to the Driver is without evidential or principled basis. The SOCAR Booking Telemetry Log showed the Driver was travelling at 50–60 km/h approaching the intersection without decelerating. The IO confirmed such speed was dangerous at that location. The Driver’s failure to enter appearance operates as a deemed admission of the Respondents’ claims.

The Appellant contends the SCJ erred in accepting the testimonies of P5 and the Driver without adequately scrutinising the fact that they are siblings (adik beradik kandung) and therefore interested parties, and without evaluating inconsistencies in their evidence.

The Appellant challenges the adverse inference under s 114(g), Act 56 submitting that –

the Car was certified a total write-off by PUSPAKOM and its disposal was consistent with ordinary commercial practice;

there was no written instruction from the prosecution prohibiting disposal; and

the IO herself released the vehicle before disposal.

The Appellant contends it is a car rental company, not a carrier of passengers and the SCJ wrongly applied Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 which concerns common carriers. The contractual terms placed responsibility for passengers on the Driver as hirer.

The Appellant submits the SCJ’s judgment is based on a wrong premise of fact and law, involves faulty judicial reasoning and warrants appellate intervention under the principles in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 and Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1.

The Respondents filed a Notice of Cross-Appeal dated 20 May 2025 raising the following grounds –

The Respondents contend the SCJ erred in attributing any liability to the Driver. They argue the effective cause of the accident was the mechanical failure of the braking system, not the manner of driving. The Appellant, as owner and lessor, bore the sole responsibility for ensuring the vehicle was roadworthy. Ground 2 : The SCJ erred in not awarding loss of actual earnings to

The Respondents submit that P5 was employed as a Security Officer at Uniforce Security Services Pte Ltd in Singapore earning SGD1,800.00 per month. He was on medical leave for 14 months following the accident. All supporting documents were agreed to by the defence at trial. The SCJ’s failure to award this head was a material error.

The Respondents submit that the medical evidence establishes permanent spinal injury (L3 compression fracture) which has rendered P5 unable to perform the physical demands of his pre-accident employment. The expert evidence was unchallenged. The Respondents claim RM 570,240.00 using the multiplier-multiplicand method per Sivakumar Avolasamy v. Chan Hoong Kok [2012] 1

The Appellant raises a preliminary objection that Grounds 2 and 3 of the Cross-Appeal are incompetent in law, contending that they concern quantum findings wholly unrelated to liability and required a separate Notice of Appeal within the prescribed time. Reliance is placed on Kabushiki Kaisha Ngu v Leisure Farm Corp Sdn Bhd & Ors [2016] 5 MLJ 557 and Majlis Peguam v Cecil Wilbert Mohanaraj Abraham [2019] 5 MLJ 159.

The Respondents counter with Order 8 Rule 55 of the Rules of Court 2012 and Choong Poh Wah v. Teoh Chai Siam @ The Chai Siam [2018] MLRHU 1013.

My analysis and findings are as below –

I deal first with the Appellant’s preliminary objection that Grounds 2 and 3 of the Cross-Appeal (relating to quantum) are incompetent.

Having considered the submissions, I am satisfied that the Cross-Appeal is competent in its entirety. Order 8 Rule 55 of the Rules of Court 2012, permits a respondent to a civil appeal to file a cross-appeal seeking variation of any part of the decision below. The quantum findings arise from the same proceedings, the same transaction, and the same trial. The entire matter is already before this Court on the Appellant’s appeal on liability. It would be unduly technical and contrary to the interests of justice to require a separate notice of appeal for quantum when the cross-appeal mechanism exists precisely for this purpose.

The authorities cited by the Appellant are distinguishable. Kabushiki Kaisha Ngu and Majlis Peguam involved different procedural contexts where the party seeking relief had not availed itself of the cross-appeal mechanism at all. Here, the Respondents have properly invoked the cross-appeal procedure. I am fortified in this view by Choong Poh Wah v. Teoh Chai Siam @ The Chai Siam [2018] MLRHU 1013, which establishes that a cross-appeal is competent even where the issues arise from distinct aspects of the same proceedings.

Accordingly, the preliminary objection is overruled. I proceed to consider the merits of both the appeal and the cross-appeal.

Was the Accident Caused by Brake Failure?

The fundamental factual dispute in this appeal is the cause of the accident. The Appellant says brake failure is entirely unproven. The Respondents say the evidence overwhelmingly points to mechanical failure of the braking system.

I have considered the evidence carefully. In my judgment, the SCJ was entitled to find, on a balance of probabilities, that the accident was caused by brake failure. My reasons are as follows.

First, the testimony of both the Driver (SP4) and P5 (SP3) was consistent on the critical point, when the Driver attempted to brake at the intersection, the brake pedal was non-responsive. P5 testified that he saw the Driver pressing the brake repeatedly (“saya nampak sendiri dia tekan brek beberapa kali, tapi kereta tak berhenti bermakna brek itu tak berfungsi”). The Driver confirmed the same and added that he also pulled the handbrake, which was equally ineffective (“Dua-dua pun saya dah tarik. Handbrake pun saya tarik, itu brek pun saya tekan”). This testimony was consistent and mutually corroborative.

Second, the IO (SP2, Inspector Kelly) confirmed that upon attending the scene and conducting her investigation, there were no brake marks (skid marks) on the road at the point of the accident. This is objective physical evidence that is consistent with total brake failure and inconsistent with the Appellant’s theory that the Driver simply failed to decelerate due to driver negligence. If the brakes had been functioning and the Driver had applied them, even belatedly, there would have been skid marks.

Third, the IO further testified that her investigation conclusion was that the brakes failed on the day of the incident (“berdasarkan hasil siasatan saya kita mendapati brek kenderaan gagal berfungsi pada hari kejadian”). While the PUSPAKOM certificate recorded “tidak dapat diuji” in respect of the brake condition, this does not negate brake failure. It merely records that the brakes could not be tested post-accident, which is itself consistent with catastrophic failure.

Fourth, the Appellant’s argument that the brakes functioned for 7 hours and 131 kilometres before failing does not assist the Appellant. Sudden mechanical failure after a period of normal operation is entirely within the range of ordinary experience. Indeed, it is precisely the kind of failure that a rigorous maintenance regime is designed to detect and prevent.

I am aware that the Appellant challenges the credibility of SP3 and SP4 on the basis that they are natural brothers. However, the relationship between witnesses does not, without more, render their testimony unreliable. The Federal Court in Teoh Kiang Hong v. Theow Say Kow @ Teoh Kiang Seng, Henry & Other Appeals [2025] 2 MLRA 504 held that the testimony of interested witnesses cannot be rejected merely on account of the relationship. The court must look at the consistency of the testimony. Here, the testimony of SP3 and SP4 was not only internally consistent but was corroborated by the IO’s independent physical findings.

I am therefore satisfied that the SCJ’s finding that the accident was caused by brake failure was supported by the evidence and was not plainly wrong. 16 2.

On the application of the doctrine of res ipsa loquitur, I agree with the SCJ’s conclusion but would refine the reasoning.

The Appellant contends that res ipsa cannot apply because the Car was under the Driver’s physical control at the time of the accident, not the Appellant’s. This argument conflates two distinct concepts : physical control of the driving and management of the vehicle’s mechanical condition.

For the purposes of res ipsa loquitur, the relevant “control” in respect of a brake failure allegation is control over the braking system’s maintenance and mechanical integrity. The Car was owned by the Appellant, maintained (or not maintained) by the Appellant and supplied by the Appellant to the Driver through its commercial platform. A sudden and complete brake failure in a vehicle that has been supplied for hire is an event that does not ordinarily occur in the absence of negligence in maintenance. The doctrine therefore shifts the evidential burden to the Appellant to provide a reasonable explanation, which it has failed to do.

I am fortified in this view by David Chelliah v. Monorail Malaysia Technology Sdn Bhd & Anor [2004] 2 MLRA 478 and Scott v London and St. Katherine Docks Company (1865) 3 H & C 596 that : where an accident occurs that would not ordinarily happen without negligence and the instrumentality is under the defendant’s management, the evidential burden shifts.

Adverse Inference Under Section 114(g) of the Evidence Act 1950 [Act 56]

The adverse inference drawn by the SCJ under s 114(g) of Act 56 is, in my judgment, well-founded.

The undisputed facts are that the IO directed the vehicle to be sent for a further PUSPAKOM inspection to determine conclusively whether the brakes had failed. The Appellant disposed of the vehicle before this second inspection could be carried out. The IO testified that she personally handed the vehicle to the owner (SOCAR) with explicit instructions that no repairs or modifications were to be made pending further investigation. When the IO subsequently sought to retrieve the vehicle for the second inspection, she was informed by SOCAR that the vehicle had already been disposed of.

The Appellant’s defence on this point is that there was no written prohibition against disposal and that the vehicle had been certified a total write-off. I find this defence unpersuasive. The absence of a written prohibition does not negate an oral instruction given in the course of a police investigation. The IO’s evidence on this point was clear and was confirmed in the investigation papers. Moreover, the Appellant’s own witness, Zulhelmi bin Othman, was found to have given contradictory evidence regarding the timeline of the disposal (stating 2023 initially, before being confronted with evidence suggesting 2021). This contradiction was telling.

Section 114(g) Act 56 provides that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The Appellant was the party with exclusive custody and control of the vehicle. By disposing of it before the second PUSPAKOM inspection could be carried out, the Appellant deprived the court and Respondents of potentially conclusive evidence regarding the state of the braking system. The inference is properly drawn that such evidence, had it been produced, would have been unfavourable to the Appellant.

As the Respondents submit and I agree : if the brakes had truly been in good condition, SOCAR had no reason to dispose of the vehicle in haste, particularly after being instructed by a police officer to retain it.

Duty of Care

The Appellant contends it is a car rental company with no direct duty of care to passengers beyond ensuring the vehicle is maintained and that this duty was discharged.

I reject this contention. The Appellant is a commercial entity that, for reward, supplies motor vehicles to members of the public for use on public roads. Whether characterised as a “car rental company” or a “car-sharing platform”, the Appellant owes a direct duty of care to all persons who may foreseeably be affected by the condition of the vehicles it supplies. This includes passengers.

The foundational principle was stated by Lord Atkin in M'Alister (or Donoghue) v Stevenson [1932] AC 562 that one must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one’s neighbour. Passengers in a vehicle rented from a commercial operator are clearly within the class of persons who may be affected by the mechanical condition of that vehicle.

I am further guided by Choh Nyee Ngah & Anor v Syarikat Beruntong Sdn Bhd [1989] 3 MLJ 112, in which the High Court held that a vehicle owner’s duty extends to ensuring the vehicle is in a safe condition and that a six-monthly inspection certificate does not exculpate the owner from blame should the vehicle cause injury due to a mechanical defect. While the Appellant seeks to distinguish Choh Nyee Ngah on the basis that it involved an employer-employee relationship, the principle of direct duty of care applies with equal force to a bailor for reward who supplies vehicles to the public.

The Appellant’s reliance on the contractual terms (Clause 17.2 of the SOCAR General Terms and Conditions) is misconceived. Contractual terms may allocate responsibility between the contracting parties, but they cannot extinguish or limit the tortious duty of care owed to third parties. The Deceased and P5 were not parties to the contract and are not bound by its terms.

I am satisfied that the Appellant owed a direct, non-delegable duty of care to ensure that the vehicles it supplied through its platform were in a safe and roadworthy condition and that it breached this duty. 20 5. Volenti non fit injuria

The Appellant also pleaded, in its Statement of Defence and maintained in its written submission, that the defence of volenti non fit injuria applies to defeat the Respondents' claims.

The doctrine requires proof that the injured party had actual knowledge of the specific risk and voluntarily consented to run that risk. It is not enough to show a general awareness that travelling in a motor vehicle carries some risk and the consent must relate to the particular danger that in fact caused the injury.

In this case, there is no evidence before the court that either the Deceased or P5 knew the braking system of the Car was defective. On the contrary, the evidence is that they were passengers in a vehicle supplied by a commercial car-sharing platform, which carried with it a reasonable expectation that the vehicle was roadworthy. A passenger who accepts a lift in an apparently ordinary rental vehicle does not, by that act alone, consent to the risk of a brake failure caused by the owner's failure to maintain.

Accordingly, the defence of volenti non fit injuria fails. 21 6.

Having reviewed the SCJ’s grounds of judgment and the evidence before the court below, I find no basis for appellate intervention on liability. The SCJ’s findings were supported by the evidence, were not based on a wrong premise of fact or law, and did not involve a fundamental misdirection. The standard for intervention established in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 and Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 is not met.

Accordingly, the Appellant’s appeal on liability is dismissed.

The Respondents seek 100% liability against the Appellant, arguing the SCJ erred in attributing 10% to the Driver.

I have considered this carefully. The effective cause of the accident was undoubtedly the brake failure, which is attributable to the Appellant’s failure to maintain the vehicle. However, I am not persuaded that the Driver bears no responsibility whatsoever.

The Booking Telemetry Log shows the Driver was travelling at between 50-60 km/h approaching the intersection of Jalan Gaya 11. The IO confirmed that this speed was dangerous at that location. While the brake failure was the dominant and proximate cause, a reasonably prudent driver approaching an intersection in a residential area, intending to execute a right turn, would be expected to decelerate. Had the Driver been travelling at a lower speed, the severity of the collision would likely have been reduced, even accounting for the brake failure. The handbrake, which the Driver also attempted, may have been more effective at a lower speed.

The 10% attribution to the Driver is a recognition of this contributory factor. The SCJ saw the witnesses, heard their testimony and was best placed to make this assessment. I find no basis for disturbing it. The apportionment of 90% to the Appellant and 10% to the Driver reflects a principled assessment of causation and relative blameworthiness.

I deal here with a related point. The Appellant pleaded, in its Statement of Defence, that the Deceased and P5 were themselves contributorily negligent as passengers, particularising this as a failure to practise "good safety features expected of a passenger" and a failure to "supervise the situation". The SCJ found that neither the Deceased nor P5 contributed to the accident. The Respondents' Cross-Appeal is directed at the 10% attributed to the Driver and does not arise directly in this respect, but because the allegation was pleaded and pursued in submissions I record my conclusion on it.

The evidence of P5 (SP3), which was unchallenged in cross-examination on this point, is that the Driver instructed all occupants to put on seatbelts before the journey commenced and that the Deceased did so. A passenger in a private vehicle owes no general duty to supervise the driver or inspect the mechanical condition of the vehicle before boarding. The Appellant adduced no evidence of any specific act or omission by the Deceased or P5 that causally contributed to the accident. In the circumstances, the SCJ's finding that the Deceased and P5 bore no contributory negligence was open to her on the evidence and is affirmed.

Accordingly, the Cross-Appeal on apportionment is dismissed. The SCJ’s apportionment of 90% liability to the Appellant and 10% to the Driver is affirmed.

Loss of Actual Earnings

The Respondents submit the SCJ erred in failing to award loss of actual earnings to P5. I agree.

The evidence before the Sessions Court established that P5 was employed as a Security Officer at Uniforce Security Services Pte Ltd in Singapore, earning a salary of SGD 1,800 per month. His work permit, valid from 6 February 2020, was still current at the date of the accident. The employment agreement dated 21 January 2020 was tendered and its contents, including the salary figure, were agreed to by the defence (dipersetujui tertakluk pada hujahan). The medical certificates recording 14 months of medical leave (22 June 2020 to 27 August 2021) were similarly agreed.

The Appellant advances two objections to this head. The first is evidential : that P5's visit pass expired on 6 February 2020 and that the Malaysia - Singapore border was closed under the Movement Control Order from 18 March 2020 until 1 April 2022, so P5 could not have been physically present in Singapore working at the material time. The second is a legal objection : that any earnings derived from work contravening Singapore's immigration or employment laws are not recoverable as a matter of public policy (ex turpi causa non oritur actio), relying on the principle that a court will not compensate a claimant for profits from an unlawful activity.

I accept the legal principle contended for A claimant cannot, as a matter of Malaysian law, recover compensation for the loss of earnings where those earnings would themselves have been unlawfully derived - for example, where the work is performed in breach of a work permit or immigration requirement. The principle is well established.

The question is whether the principle operates on the facts of this case. In my judgment it does not, for two reasons.

First, the underlying employment agreement between P5 and Uniforce Security Services Pte Ltd dated 21 January 2020 is a lawful contract. Its terms, including the salary of SGD1,800.00 per month, were tendered at trial and agreed by the defence subject to submissions. The illegality, if any, arises not from the contract itself but from any performance of work without a valid pass or during the MCO period.

Second, the head of loss claimed is pre-trial loss of earnings for the 14-month period of medical leave from 22 June 2020 to 27 August

During this period P5 was not working at all - he was on medical leave due to the injuries sustained in the accident. What he was deprived of, on the evidence before the Sessions Court, was the contractual entitlement under his agreement with Uniforce, not earnings from unlawful work actually performed. The illegality point, on these facts, does not bite.

As to the evidential objection, this was a matter which the Appellant could have, and should have, explored more rigorously at trial through cross-examination and the production of contradictory evidence. Having agreed to the employment documents at trial, the Appellant is not entitled to resile from that position on appeal.

In the circumstances, I find that P5 has proved, on a balance of probabilities, that he was gainfully employed at the material time and suffered a loss of earnings for the 14-month period of his medical leave. The calculation is as follows – SGD1,800.00 per month X 14 months = SGD25,200.00 SGD25,200.00 X 3.3 (exchange rate) = RM83,160.00

Accordingly, the Cross-Appeal on loss of actual earnings is allowed. P5 is awarded RM83,160.00 for loss of actual earnings (pretrial). 26 2.

The Respondents claim RM 570,240.00 for loss of earning capacity, calculated using the multiplier-multiplicand method per Sivakumar Avolasamy v. Chan Hoong Kok [2012] 1 LNS 52. The SCJ rejected this claim. The Respondents submit this was wrong.

I agree that the SCJ erred in principle in failing to award loss of earning capacity. However, I do not agree with the quantum claimed by the Respondents.

The medical evidence from Dr. Teo Pock Chin, the Plaintiffs’ orthopaedic expert, established that P5 suffers from –

residual backpain due to L3 compression fracture;

limitation of joint movements; and

wasting and weakness of the muscles with scar tissue.

Dr. Teo’s conclusion was that these are permanent disabilities attributable to the accident which will prevent P5 from working at the same capacity as before.

P5 himself testified that as a security officer, his duties required constant patrolling on foot over large areas, prolonged standing and walking long distances. He stated clearly that he can no longer perform these duties, in particular he cannot stand for long periods, walk long distances, climb stairs, lift heavy objects or squat. Critically, this testimony was not challenged in cross-examination by the defence. Under the established principles in Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 and Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors And Another Appeal [1995] 2 MLJ 770, the failure to cross-examine on this material point amounts to acceptance of the testimony.

The proper test for loss of earning capacity, as stated by the Federal Court in Yang Yap Fong & Anor v. Leong Pek Hoon & Anor [1987] CLJ Rep 419, is whether at some time in the future, due to the effect of the injuries sustained, the plaintiff will face a substantial risk of either losing his job or getting less paid employment. The evidence satisfies this test. P5 has been reassigned to light duties. His work performance has deteriorated. The risk of future job loss or demotion is real and substantial.

I am further guided by Tay Tong Chew & Anor v Abdul Rahman Bin Haji Ahmad [1985] 1 MLJ 50, in which the Federal Court held that where there is a substantial or real risk that the plaintiff will at some future time suffer loss of earning capacity, compensation should be awarded as part of general damages. And by Lau Ho Wah v Yau Chi Biu [1985] 1 W.L.R 1203 (Privy Council), where it was held that earning capacity is a continuing state and not limited to one specific period, and an award is justified even where the employee’s post-accident earnings exceed pre-accident earnings.

While I accept the entitlement to an award, I am not persuaded that the Respondents’ claimed figure of RM570,240.00 is appropriate. The 50% multiplicand adopted by the Respondents representing 50% of P5’s gross converted monthly salary as the measure of reduced capacity, appears to be counsel’s own assessment rather than one derived from medical evidence or established disability percentages.

The defence expert, Prof. Dr. Vivek Ajit Singh, found that P5 was gainfully employed as a customer service officer and capable of performing daily tasks, though unable to do strenuous activities. This suggests reduced capacity, not total or near-total incapacity.

Taking into account the nature and severity of P5’s injuries (permanent L3 compression fracture with deformity, residual pain, and functional limitation), his age at the time of the accident (under 30), the nature of his pre-accident employment (physically demanding security work), his current reassignment to light duties at a comparable or slightly lower salary and the real risk of future disadvantage in the labour market, I consider a multiplicand of 35% of his gross converted monthly salary to be just and appropriate.

The calculation is as follows – Monthly salary : SGD1,800.00 X 3.3 = RM5,940.00 Multiplicand (35%) : RM5,940.00 X 0.35 = RM2,079.00 Multiplier : 16 years (P5 being under 30 at the time of the accident) Loss of earning capacity : 16 X 12 X RM2,079.00 = RM399,168.00

Accordingly, the Cross-Appeal on loss of earning capacity is allowed. P5 is awarded RM399,168.00 for loss of earning capacity.

For the reasons set out above, I make the following orders –

The Appellant’s appeal on liability is dismissed. The Sessions Court’s finding that the Appellant bears 90% liability and the 1st Defendant bears 10% liability is affirmed;

The Respondents’ Cross-Appeal on the apportionment of liability is dismissed. The 90/10 apportionment is maintained;

The Respondents’ Cross-Appeal on quantum is allowed in part, as follows –

P5 (the 3rd Respondent) is awarded RM83,160.00 for loss of actual earnings (pretrial), being SGD1,800.00 per month for 14 months converted at 3.3.

(ii) P5 (the 3rd Respondent) is awarded RM399,168.00 for loss of earning capacity, calculated on the multiplier-multiplicand method with a multiplicand of 35% of gross monthly salary (RM2,079.00) and a multiplier of 16 years.

The additional awards under paragraph (c) above are subject to the 90% apportionment of liability against the Appellant;

Interest on the awards under paragraph (c) shall run at the rate of 5% per annum from the date of filing of the suit to the date of this judgment and at 4% per annum from the date of this judgment until full realisation.

The remaining quantum awards made by the Sessions Court are undisturbed.

As the Appellant has substantially failed in its appeal and the Respondents have substantially succeeded in their cross-appeal, the parties are to bear their own costs. Dated : 12 March 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Appellant : : Nan Muhammad Ridhwan bin Rosnan together with Muhammad Hibri bin Nazim, Saif Aslam bin Lokman and Mohamad Danial bin Mohd Firdaus (pupil-in-chambers) Messrs. Zul Rafique & Partners Solicitor for the Respondents : : Sera, Teo Han Ley Messrs. Teo & Associates