Tan Seng Hin v 1. ) Nguyen Thi Hang (BL-A53KJ-256-06/2024)

The present case concerns an incident that occurred on 26.9.2023 involving the Plaintiff, a 74-year-old man, and a car driven by the First Defendant, a Vietnamese national (“the incident”).

The evidence before the court presents two divergent versions, with the parties offering sharply contrasting accounts of the events leading to and surrounding the incident. The dispute emerges from these competing narratives and raises questions of liability as well as quantum flowing from the incident.

Having evaluated the totality of the evidence before me, I find on a balance of probabilities that the Plaintiff has established his claim against the Defendants. I, therefore, allow the Plaintiff’s claim with costs.

My reasons for so finding are set out in the analysis that follows.

At all material times, the parties were as follows:

Tan Seng Hin - the Plaintiff was in the vicinity of a roadside stall along Jalan Besar Pandamaran.

(ii) Nguyen Thi Hang - the First Defendant, a Vietnamese national, who was driving the car bearing registration number BFF 3968 as an employee, agent, or authorized person acting on behalf of Ng Sing Head.

(iii) Ng Sing Head - the Second Defendant is a Malaysian national and the registered owner of the car bearing registration number BFF 3968. MATTERS IN DISPUTE AND EVIDENTIARY SOURCES

The accident occurred on 26.9.2023 at about 10.30 a.m. by the roadside on Jalan Besar Pandamaran. It involved the Plaintiff and a car bearing registration number BFF 3968 (the car), driven by the First Defendant, a Vietnamese national, and owned by the Second Defendant. The Plaintiff sought both general and special damages arising from the incident.

In support of his claim, the Plaintiff testified and called the following witnesses:

Sarjan Muhammad Rizal Bin Abdul Halim, the Investigating Officer (PW1).

(ii) Tan Seng Hin (PW2, who will in this judgment be referred to as the Plaintiff).

(iii) Dancy Tan Leng See (PW3).

(iv) Gan Boon Kok - the Independent Witness (PW4).

The First Defendant also gave evidence.

It is necessary at this juncture to set out the parties’ conflicting versions as derived from the pleadings, for they serve to frame the central dispute in this action and to illuminate the factual terrain over which the parties are at odds, as follows. The Plaintiff's version

The Plaintiff’s pleaded version is that the First Defendant suddenly and negligently drove the car into him from behind while he was lawfully standing by the roadside. It runs as follows: "4. Pada 26.9.2023 Plaintif sedang dengan sah di sisi undang-undang beratur di hadapan gerai di tepi jalan besar Pandamaran apabila dengan tiba-tiba sebuah m/kar No. BFF 3968 yang dipandu oleh Defendan Pertama dengan begitu mengejut dan cuainya tanpa memberi sebarang tanda, amaran dan/ atau isyarat telah melanggar/ bergesel dengan Plaintif dari arah belakang di tepi jalan tersebut.” (See: Paragraph 4 of the Plaintiff’s Statement of Claim) The Defendants’ version

The Defendants’ version rests on their denial of any involvement of the car in the incident (the primary defence). Alternatively, they pleaded that the incident was not caused by any negligence on the First Defendant (the alternative defence). It runs as follows: “3. Pihak Defendan-Defendan menafikan bahawa motorkar No. BFF 3968 terlibat dalam perlanggaran dengan Plaintif sebagai seorang pejalan kaki pada hari dan tempat yang dinyatakan di perenggan 4 dalam Pernyataan Tuntutan dan pihak Plaintif diletakkan dibawah dasar bukti yang kukuh.

Selanjutnya dan/atau secara alternatif, jika pihak Plaintif berjaya membuktikan bahawa motorkar No. BFF 3968 terlibat dalam perlanggaran tersebut, yang mana dinafikan, pihak Defendan-Defendan menafikan bahawa kemalangan tersebut disebabkan oleh kecuaian Defendan Pertama dan Kedua selaku pemandu dan pemilik motorkar No. BFF 3968.” (See: Paragraphs 3 & 4 of the Defendants’ Statement of Defence) LEGAL POSITION ON THE BURDEN OF PROOF Statutory provisions Evidence Act 1950 (the Act). Section 101 of the Act reads: “101 Burden of proof “102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

And Section 103 of the Act reads: “103 Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” Precedents Ong CJ (Malaya) in the case of Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151; [1971] 2 MLJ 175 observed: “In a negligence action the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence. The plaintiff cannot succeed without proof of the defendant's negligence. Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, may result in proof, but it is not necessarily proof of itself.”; see 15 Halsbury (3rd Edn.) p. 260.” (later JCA) in the case of Krishna Murthey & Anor. v. Law Lye Chua [1992] 2 CLJ Rep 668, wherein His Lordship cited Ng Chui Sai v. Maimon Bt. Ali [1983] 1 MLJ 110 and observed: “The onus is not on the defendant to prove that he was not negligent. As was succinctly pointed out by Hashim Yeop A. Sani J (as he then was) in Ng Chui Sai …: In an action for negligence the onus of proving the allegation of negligence rests on the person who makes it unless there are disclosed facts which raise a presumption in favour of the plaintiff. The plaintiff must show affirmatively that there has been a breach of a specific or genuine duty by the defendant and this resulted in the damage to the plaintiff. If he fails to prove this the action must fail.” Seah [1992] 2 CLJ Rep 601, wherein His Lordship observed: “In my view it was unjustified for the Judge to put liability at all on the defendant when the plaintiff had not discharged the onus of proof on him on balance of probabilities that the accident was caused by the negligence of the defendant either wholly or partially and I therefore allowed the appeal of the defendant with costs.” Act were referred to in MGI Securities Sdn Bhd v. Teong Teck Leng & Ors [2000] 5 CLJ 163; [2000] 1 MLJ 354 by K L Rekhraj J wherein His Lordship observed: “...sections 101 and 102 of the Evidence Act 1950 require 'whosoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove those facts do exist'; and here the plaintiff having chosen and elected not to lead the evidence of the oral agreements through its witnesses, the court could only hold that there was no evidence of the plaintiff's before the court to adjudicate upon; and accordingly dismissed the plaintiff's claim with costs.” Court case of U Television Sdn Bhd & Anor v. Comintel Sdn Bhd [2017] 10 CLJ 580; [2017] 5 MLJ 292, wherein it was observed: “35. On the meaning and application of the term "burden of proof" s. 101 of the Evidence Act 1950 ("the Act") states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The "burden of proof" in s. 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The "burden of proof" in s. 102 of the Act shifts from one side to the other according to the weight of the evidence." ARGUMENT ON LIABILITY FIRST ISSUE: WHETHER THE PLAINTIFF HAD DISCHARGED THE BURDEN OF PROOF ON THE BALANCE OF PROBABILITIES IN PROVING THAT THE ACCIDENT WAS CAUSED BY THE NEGLIGENCE OF THE FIRST DEFENDANT – ASSESSING THE MORE

Having set out the competing versions, I now return to the central issue of liability. As is trite, the Court must consider the evidence as a whole, not simply in terms of assertion, but in terms of substance tested against careful scrutiny.

Learned counsel for the Plaintiff submitted that the Plaintiff had discharged the burden of proof on the balance of probabilities, establishing that the accident was caused by the negligence of the First Defendant.

Opposing the preceding argument, learned counsel for the Defendants submitted that the Plaintiff had failed to discharge the burden of proof on the balance of probabilities. Legal framework

I find it apt to note, by way of a curtain-raiser, the observation on the duty of the court to assess the inherent probability or improbability of a version from a set of facts by FA Chua J in the Chua Chong Cher v. Teo Lang Keow & Ors [1970] 2 MLJ 27; [1970] 1 LNS 18, wherein His Lordship observed: “As often happens, a Court on the evidence before it, has to decide which of two conflicting versions is the version to accept. In such a case, a Court in considering which is the more probable one, ought to try and derive what assistance it can get from undisputed facts, if any, which are relevant for the purpose. A Court also ought to consider, from undisputed facts, whether a version put forward as evidence is one which is inherently improbable or not.” (Emphasis added) Chong Seaw Oon (suing The Administrator of The Estate of Wong Kooi Tai @ Wong Foo Keak, Deceased v. Shaari Yaacob) [1988] 1 CLJ 325, wherein His Lordship observed: "… the function of the trial court is to carry out a searching evaluation and assessment of the totality of the oral and documentary evidence in order to determine the truth. In the final analysis, it is not merely a question of whom to believe but rather whose version is more inherently probable which is that prime conclusion.” (Emphasis added)

I proceed on the footing that the evidence discloses two competing versions, namely:

The Plaintiff’s version - the Plaintiff was lawfully standing in line in front of a stall by the main road in Pandamaran when, suddenly, the car driven by the First Defendant, collided with or brushed against the Plaintiff from behind at the roadside, without giving any warning or signal.

(ii) The Defendants’ version - The Defendants denied that the car was involved in any accident with the Plaintiff on 26.9.2023. Alternatively, the accident was not caused by any negligence on the First Defendant. Yeu [1999] MLJU 126; [1999] 3 CLJ 188; and Boxioni Anak Lubong & Anor v. Rodrick Anak Ale [2025] CLJU 2178).

Considered in light of the afore-cited observations, and weighing them with the factual scores and circumstantial peculiarities of the present case, I respectfully find that the cumulative force of the evidence establishes on the balance of probabilities that the Plaintiff’s version is more inherently probable than that of the Defendants’.

My reasons are these.

Consistency of the Plaintiff’s Account at the Scene Oral testimony

As established in Jayabalan v. UT of Pondicherry [2010] 1 SCC 199 which was cited with approval by the Federal Court in Teoh Kiang Hong v. Theow Say Kow & Other Appeals [2025] 2 CLJ 683; [2024] MLJU 3611, “The primary endeavour of the court must be to look for consistency”.

Turning now to the consistency of the Plaintiff’s account, I am satisfied that the Plaintiff, aged seventy-four at the material time, has given evidence that is clear, consistent, and probable. At the material time, he was purchasing food at a roadside stall when the accident occurred. From the very outset, he maintained a single, unvarying account of the events, which has remained unchanged throughout the proceedings.

This consistency is reflected in his oral testimony. In the witness box, the Plaintiff remained firm in asserting that he was struck from behind on the right side by the First Defendant’s car. He further demonstrated the manner of impact when questioned. Having observed his demeanour closely, I regard the Plaintiff’s evidence as consistent and coherent, and on balance, I consider his account to carry greater probative weight.

In addition, I take the view that the Plaintiff’s explanation regarding his position at the scene is reasonably coherent and consistent with the surrounding evidence. He stated that he was standing upon the cemented area beneath the zinc roof of the food stall, taking shelter from the rain while awaiting an umbrella from the chicken rice stall operator, PW4. To my mind, his identification of the precise location by marking “O” on the photograph (Exhibit P14C) and “Y” on the sketch plan (Exhibit P1) was clear, deliberate, and fully consistent with his oral testimony.

Further support for the Plaintiff’s account is found in the contemporaneous medical report from Bukit Tinggi Medical Centre dated 26.9.2023, which records under “History of Presenting Illness” that the Plaintiff informed the attending doctor that he had “accidently hit by a car at restaurant he had been knocked down by a car at a restaurant at around 10 am on 26.9.2023”.

The preceding history was given at the first available opportunity, shortly after the incident, and is therefore contemporaneous, reflecting the Plaintiff’s immediate recollection of events. Notably, the report makes no reference to the Plaintiff crossing the road, an omission that is telling. From my standpoint, the contemporaneous nature of this record corroborates the consistency of the Plaintiff’s account throughout the proceedings and lends greater probability to the Plaintiff’s version.

In the same vein, the Plaintiff’s police report (Exhibit P7) confirms that while he was standing in line, a car suddenly came from the side, causing him to fall. The report does not in any way make reference to him crossing the road. In my assessment, this account aligns with the history previously provided to the attending doctor at Bukit Tinggi Medical Centre. The consistency between these independent records, in my view, further reinforces the probability of the Plaintiff’s evidence.

It bears emphasis that I am well alive to the fact that the police report (Exhibit P7), which was lodged on 24.10.2023, shows a lapse of time. Be that as it may, it appears to me that the delay is reasonably explained by the Plaintiff’s recovery. On that premise, I accept this explanation which, in my view, is both reasonable and justified. To my mind, such a delay does not undermine the substance or reliability of his account. (see: Lim Ah Lak v. Charan Singh Mohan

As regards the Defendants’ argument on the contradiction between the Plaintiff’s police report, in which he stated he was standing in line, and his evidence during proceedings that he was waiting at the stall, I find it unconvincing. As I see it, the Plaintiff’s evidence under oath provides a fuller explanation of the circumstances. And while I remain mindful of the evidential relevance of the police report, as established in Abdul Kadir Mohamad v. Kamarulzaman Mohd Zin & Anor [2000] 4 MLRH 239; [2001] 5 CLJ 249, I am equally mindful of the succinct observation by Ong Hock Thye CJ (Malaya) in the Federal Court case of Herchun Singh & Ors v. Public Prosecutor [1969] 2 MLJ 209; [1969] CLJU 52, wherein His Lordship remarked that a police report “is not an encyclopaedia” and “is not the beginning and ending of every case.” On that premise, it is clear that a police report is not intended to capture every detail or to serve as the sole basis for assessing the facts of a case. It follows, therefore, that the Defendants’ contradiction argument does not affect the probability of the Plaintiff’s version, which I find remains consistent with contemporaneous records and independent evidence.

As regards the argument advanced for the Defendants that there is a contradiction between PW3’s police report and her evidence in court, I note here the following. In the report, PW3 stated that the Plaintiff was crossing the road. Before me, she maintained that the Plaintiff was waiting in front of a stall and explained on oath that the earlier reference arose from a language error. While there is an inconsistency, the crucial consideration is whether it impacts the overall probability of the Plaintiff’s evidence.

On my evaluation, the police report, though contemporaneous, is not determinative and does not, in my view, undermine the Plaintiff’s account. PW3’s explanation was candid, coherent, and unshaken in cross-examination. Against this backdrop, it occurs to me that the present case is not one where no evidence was led to account for the inconsistency, nor is this a case where the inconsistency arises from any attempt to mislead the Court, and nor even is this a case where the inconsistency remained unjustified.

Viewed as a whole, I find that the inconsistency does not affect the probability of the Plaintiff’s version. It arises from PW3’s independent and isolated account rather than any change in the Plaintiff’s position, which I am satisfied remained consistent throughout the proceedings. Even so, I consider the explanation given through the evidence to be reasonable. In my view, the Plaintiff’s account retains its probability and is entitled to significant weight in assessing the circumstances of the accident.

On the balance of probabilities, I am satisfied that the Plaintiff’s version that he was struck from behind by the First Defendant while he waited at the stall, anchored in contemporaneous documentation, corroborated by objective material, and remaining internally consistent across all stages of the proceedings, stands as the more probable account than that of the Defendants.

(ii) Independent Eyewitness Evidence

I turn next to the evidence of an independent eyewitness. PW4 testified before me as an eyewitness to the accident. In this regard, I find that the Plaintiff’s evidence is materially supported by the testimony of PW4. PW4 is the operator of the chicken rice stall known as Ah Kok Pandamaran Chicken Rice. He produced a valid hawker’s licence issued by MBDK and a business registration certificate from SSM. These documents support his evidence that he was operating the stall at the very location where the accident occurred. He also identified the photographs of the scene as depicting his stall. Taken together, these matters lend weight to his asserted presence at the scene and materially reinforce the probability of the Plaintiff’s version.

Equally material is the manner in which PW4’s evidence withstood cross-examination. PW4 was cross-examined at length by counsel for the Defendants. Despite sustained questioning, his evidence remained unshaken. On the material facts, I find his account mirrors that of the Plaintiff and does not contradict it in any respect. He confirmed under oath that it was raining at the material time, that the Plaintiff was sheltering under the zinc roof of the stall, that he was about to hand an umbrella to the Plaintiff, and that the Plaintiff was struck while standing. Further, he was firm in his evidence, denying that the Plaintiff was crossing the road at the time of the incident. In these circumstances, I found PW4 to be a credible independent witness whose evidence provides clear and consistent corroboration of the Plaintiff’s version.

As regards the argument advanced by the Defendants that PW4’s testimony is an afterthought or that he is incompetent to testify, I do not accept that submission. The evidential record before me establishes that PW4 was present at the scene and personally observed the incident as it occurred. Far from being a stranger to the Plaintiff’s account, he was an eyewitness to the incident itself. His evidence was grounded in direct, first-hand observation and not derived from any external or reconstructed narrative. His testimony is, in my view, independent, direct, and credible.

As respects the Defendants’ argument regarding the busy state of the stall, I do not find it convincing. There is no evidence to suggest that the busy state of the stall diminished or negated PW4’s ability to observe the incident. The material consideration is that PW4 was present and personally observed the events, and his account was given on oath and remained unshaken under cross-examination. His testimony was clear, coherent, and consistent, and I am satisfied that it provides a reliable and trustworthy account of what occurred.

As concerns the Defendants’ argument regarding the absence of a police report by PW4, I find this to be of limited significance. PW4 gave direct evidence before this Court based on his personal recollection arising from his own observation of the events, rather than from second-hand reports or reconstructed narratives. Even if a police report had been lodged, it would have served only as corroborative evidence and would not replace the value of his direct testimony. Such an absence does not, by itself, diminish the probative value of his evidence. It would only have assumed significance had PW4 introduced a new or inconsistent narrative, which, as I find, he did not.

On the balance of probabilities, I am satisfied that PW4’s evidence, given in his capacity as an independent witness, strengthens the probability of the Plaintiff’s version, rendering it the more probable account than that of the Defendants.

(iii) Surrounding and Contextual Evidence Supporting the Plaintiff’s Version

I begin my assessment in light of Ng Aik Kian & Anor v. Sia Loh Sia [1997] 2 CLJ Supp 218, which holds: “[2] It is trite law that where the drivers and the witnesses on each side tell conflicting and divergent stories, the photographs, plans, measurements of the scene of the accident and the nature of the damage to each vehicle will be the guiding force and the reliable guide to rely upon.”

Applying this approach to the present case, it appears to me that the surrounding circumstances are more consistent with the Plaintiff’s version. It was not disputed that it was raining at the material time, and the cumulative weight of corroborated evidence shows that the Plaintiff was waiting for an umbrella from PW4. This establishes that he remained at the roadside, rather than attempting to cross, consistent with cautious and deliberate conduct under the circumstances.

Upon further scrutiny, there is no evidence suggesting any urgency or necessity that would have compelled the Plaintiff to cross the road under such conditions. Viewed in light of reasonable behaviour, the evidence is more consistent with the Plaintiff having acted prudently and in accordance with ordinary self-preserving conduct. I also place additional weight on the Plaintiff’s age. At 74 years, it is reasonable to infer that the Plaintiff may lack the speed or agility necessary to cross moving traffic, much less to run. Against this backdrop, the First Defendant’s version that the Plaintiff ran from the left in an attempt to cross the road appears improbable.

In these circumstances, it is plain to me that the Plaintiff’s evidence, when assessed against the canvas of circumstantial evidence, was consistent throughout, showing that he was stationary at the material time prior to the impact, positioned at or near the roadside rather than actively crossing the carriageway. Taken together, I am driven to hold that the evidence lends greater weight to the Plaintiff’s version, rendering it to be the more probable version.

On the balance of probabilities, I am satisfied that the surrounding and contextual evidence, viewed in its entirety, reinforces the probability of the Plaintiff’s version, rendering it the more probable version than that of the Defendants.

(iv) Objective and Physical Evidence Corroborating the Plaintiff’s Version

The objective evidence tends to corroborate the Plaintiff’s account and is consistent with the Plaintiff’s account that he was struck on his right side by the left side mirror of the First Defendant’s vehicle from behind. I am well alive to the Defendants’ argument that the absence of visible damage to the mirror, as well as to the structure of the food stall or its equipment, might suggest that no impact occurred. However, upon a careful assessment of the evidence as a whole, I find that the Plaintiff’s version of events is more probable and that contact did in fact occur.

Turning to the vehicle itself, the Investigating Officer (PW1) confirmed under oath that the left side mirror was not damaged. This fact was not disputed, as no evidence was led showing any damage to that part of the car. To my mind, however, the absence of visible damage is readily explained by the evidence establishing that the mirror made contact with the Plaintiff’s body rather than a hard surface. This, in turn, does not in any way negate the occurrence of impact. The Plaintiff sustained injuries that align precisely with the point of contact described by him, lending support to the probability that contact occurred.

Tied closely to this, the absence of visible damage to the structure of the food stall or its equipment similarly does not undermine the occurrence of the incident. This is reasonably explained by the fact that the vehicle made direct contact with the Plaintiff’s body rather than with the stall or its fixtures. From where I stand, the evidence clearly shows that the car struck the Plaintiff and did not swerve into the stall or its fittings. Moreover, the lack of damage to the stall or its equipment reinforces that the impact was concentrated entirely on the Plaintiff, consistent with his account that he was standing at the roadside under the stall’s shelter at the material time.

Assessed cumulatively, I find that the preceding factors strengthen the probability of the Plaintiff’s version. The injuries sustained, their precise location, the eyewitness testimony, and the absence of any damage to the vehicle or stall collectively support the Plaintiff’s version as being more probable, with the impact directed to his body and not to any other object.

Another important consideration is that the point of contact id est the left side mirror, tends to support the probability that the side mirror extended into the space immediately adjacent. This supports the probability that the side mirror may have extended into the space immediately adjacent to the carriageway where pedestrians, including the Plaintiff, would ordinarily be present. As I see it, the geometry of the impact, combined with the position of the Plaintiff and the eyewitness account, further substantiates that the incident was inevitable given the Defendant’s car trajectory. This evidence collectively reinforces the probability that the Plaintiff was struck while stationary at the roadside, rather than being in any other position on the scene.

Building on the foregoing, I further find that the mechanics and location of the impact are consistent with the Plaintiff being stationary and facing away from the vehicle at the material time. The impact on the rear right side of the Plaintiff’s body is inconsistent with a pedestrian running across the road, but accords well with a scenario in which the Plaintiff was standing at the roadside beside the food stall. It follows, therefore, that although the Defendant’s car was being driven on the roadway, the contact occurred while the Plaintiff remained on the concrete pavement beside the stall.

On the balance of probabilities, I am satisfied that the objective and physical evidence, viewed in conjunction with the eyewitness testimony and the surrounding circumstances, reinforces the probability of the Plaintiff’s version, rendering it the more probable account than that of the Defendants.

Scrutiny of the First Defendant’s Version

In assessing the probability of the First Defendant’s version of events, I shall address the following points sequentially.

The First Defendant’s account first emerged in her police report, which was lodged on 18.12.2023, more than two months after the accident on 26.9.2023. No explanation was offered during trial for this delay, and in my view, the unexplained lapse materially weakens the probability of the First Defendant’s version. In this regard, the principle articulated in A Perianayagam & Anor v Yeo Suan Tin & Anor [1984] CLJU 15; [1984] 1 MLJ 214; [1984] 1 LNS 15, is instructive: “... No reason was given for this delay but in cases of this nature, such delay has the effect of making victim like P.W.2 wiser after the event and he is liable to manufacture facts to hide the true state of affairs.”

And beyond undermining reliability, it is trite that delay in reporting is a material factor that bears directly on a witness’s impartiality and veracity. In Karthiyayani & Anor v. Lee Leong Sin & Anor [1974] 1 LNS 61, the Federal Court observed: “The main test as to whether there has been a delay in making the report is whether it was made as early as can reasonably be expected in the circumstances of the case and before there is opportunity for tutoring or concoction. This, in my opinion, is also a circumstance tending to affect a witness's impartiality, hence his veracity which must be taken into account in arriving at a decision.”

The evidential record before me shows that there exist conflicting accounts regarding the circumstances of the incident.

First, the First Defendant’s police report shows a pedestrian ran in a sudden manner from the left side intending to cross to the right and struck the left side of her car. (see: Part II, Bundle of Document, page 2 – Enclosure 9)

Second, the Defendants’ primary defence shows no incident occurred involving the car. And the Defendants’ alternative defence was that the incident was not caused by any negligence on the First Defendant. (see: Paragraphs 3 & 4 of the Defendants’ Statement of

Third, the First Defendant viva voce evidence during trial shows two contradictory accounts:

upon arriving at Jalan Kecil Pandamaran, it was raining and she was driving on a one-way street. Suddenly, a pedestrian ran from the left side intending to cross to the right, and collided with the left side of her car.

(ii) she only saw the Plaintiff when the Plaintiff struck the left side of her car, and she had no prior awareness of the Plaintiff’s presence before the impact.

Fourth, paragraph 106 of the Defendants’ Written Submission [Enclosure 41] states that the Plaintiff as a pedestrian, placed himself in a position of danger and contributed to the negligence to a greater extent, having made the decision to cross the road in a busy area frequently used by vehicles, particularly at a location lacking proper pedestrian crossing facilities.

In the round, the divergence between the police report, the pleaded defence, the viva voce evidence and the subsequent position in the written submissions reveals a shifting and internally inconsistent narrative. Significantly, the police report, which records the First Defendant’s account of the incident, stands in stark contrast with the Defendants’ primary defence id est denial of any involvement. More critically, the First Defendant’s oral testimony presents accounts that cannot be reconciled with the objective facts, persisting even in light of the alternative defence concerning the First Defendant’s denial of negligence. Even more tellingly, this pattern of inconsistencies is further reflected in the written submissions, where a materially different position is advanced.

As is well-established, inconsistent accounts undermine the probability of any version of events. (see: Suriyati Takril v. Mohan Govindasamy & Anor [2001] 2 CLJ 101; and Sidek Ibrahim & Satu Lagi lwn. Ibnu Asyakir Mohd Ghazali & Satu Lagi [2016] 8 CLJ 406). Taken cumulatively against the Plaintiff’s consistent version, I find that these inconsistencies render the Defendants’ version improbable. Rule Against Approbatum et Reprobatum

At the risk of stating the obvious, the Defendants’ irreconcilable accounts amount to a vacillating and contradictory hotchpotch of statements. Faced with this ambivalence, they cannot approbate and reprobate in the same breath, nor can they claim the benefit of both narratives by advancing mutually opposed accounts. Support for this principle is found in the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers PLC v. News (UK) Ltd and Others [1990] 3 All ER 376, wherein it was observed: “…A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back…”, and the words of Mohd Nazlan Ghazali J (now FCJ) in the case of Bakti Dinamik Sdn Bhd v. Bauer (Malaysia) Sdn Bhd [2016] MLJU 916; [2016] 10 CLJ 247, wherein it was observed, “The position taken … on this point may thus be characterised as one which violates the principle against ‘approbating and reprobating’”. In the Court of Appeal case of Visage Continental Sdn Bhd v. Smooth Track Sdn Bhd [2007] 6 CLJ 570, Richard Malanjum JCA (later CJ) referred to various authorities and enunciated clearly the rule that a party should not be allowed to approbate and reprobate as it is a practice that is both plainly unconscionable and unfair. (See also: Boustead Trading Sdn Bhd v. Arab Malaysia Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283; and Development & Commercial Bank Berhad v. Aspatra Corporation Sdn Bhd & Anor [1996] 1 CLJ 141).

Turning to the substance of the First Defendant’s account, I do not find her assertion that she was travelling at only 15 to 20 km/h to be more inherently probable. At such a speed, given the narrowness of the road and the row of busy food stalls alongside, the incident ought reasonably to have been avoidable. The severity and nature of the Plaintiff’s injuries sustained on the right side of his body indicates that the car was more probably moving at a higher speed and that proper care was not exercised. From my standpoint, this assessment is consistent with the Plaintiff’s account and the evidence observed at the scene.

Shifting focus to another crucial facet of the evidence, I now consider the First Defendant’s attentiveness and ability to observe the Plaintiff at the material time. Notably, the First Defendant confirmed under oath that she did not see the Plaintiff prior to the incident. As evidenced by the relevant photographs, the road ran alongside a row of busy food stalls, a setting that plainly imposed a heightened duty of care towards pedestrians and other road users. Her assertion that she only observed the Plaintiff after the incident, at the front left of her vehicle, demonstrates a clear failure to discharge this duty of care, reflecting inattention to her immediate surroundings while driving. This is particularly so when assessed against the circumstances that it was raining and the stretch of road was relatively narrow, conditions that required even greater caution. Taken together, these factors further diminish the probability of the First Defendant’s version.

On the balance of probabilities, I am satisfied that the Plaintiff’s version stands as the more probable one than that of the Defendants.

I now turn to other important considerations that further inform the assessment of the probability of the version in the present case.

Refer to Magistrate (RTM) Classification

As regards the Defendants’ reliance on PW1’s RTM classification and the absence of any summons against the First Defendant, I note that such procedural matters do not diminish the probability of the Plaintiff’s account and are not determinative of negligence. This position is reinforced when the nature and limits of the Investigating Officer’s evidence are properly appreciated. PW1’s role was confined to post-accident investigation and was not based on any personal observation of the incident. Whether or not any view as to fault was expressed, and regardless of the procedural classification of the case as RTM due to uncertainty, such investigative outcomes cannot be treated as a finding of negligence, and even if PW1 had purported to attribute liability, the Court must independently assess negligence on the totality of the evidence.

In this regard, I draw guidance from the case of Lim Jeh Haur v Nicholas Thomas Philip & Anor [2019] MLJU 1016; [2019] 1 LNS 1351 where Wong Kian Kheong J (now JCA) cited with approval the judgment of Ong Hock Thye Ag CJ (Malaya) in Public Prosecutor v. Siew Sung [1965] CLJU 140; [1965] 1 LNS 140; [1966] 1 MLJ 145 and observed: “24. The court should not attach any weight to the evidence of an IO that a particular party has been negligent or not (or words to that effect) because: IO's knowledge of the accident is derived solely from the results of the IO's investigation. In other words, the IO's evidence regarding who is negligent or not, constitutes hearsay evidence… ; and

Reverting to the present case, the absence of any determination of liability by PW1, or the RTM procedural classification, does not prevent the Court from assessing the evidence and reaching a reasoned conclusion on the probability of the Plaintiff’s version. On that basis, I do not find the Defendants’ contention persuasive and reaffirm that the determination of negligence rests squarely within the Court’s purview.

(ii) Witnesses’ Demeanour and Credibility of Testimony

Turning next to the demeanour of the witnesses and the credibility of their testimony, I find that the Plaintiff’s witnesses’ demeanour in the witness box was calm, forthright, and composed, showing no signs of evasiveness. Their consistency and unfaltering composure throughout the proceedings lent additional weight to the reliability of their testimony.

That said, I remain tethered to the caution expressed by Ong Hock Thye FJ in the Federal Court decision of Ah Mee v. Public Prosecutor [1967] 1 MLJ 220; [1967] 1 LNS 3, wherein His Lordship observed, “To avoid undue emphasis on demeanour, it may be well to remember what was said by Lord Wright, and often quoted, from his judgment in Powell and Wife v. Streatham Manor Nursing Home [1935] AC 267 of the possibility of the Judges being deceived by adroit or plausible knaves or by apparent innocence.” That wise admonition is not lost on me.

Having had the benefit of observing the trial first-hand, I find that the Plaintiff’s witnesses’ evidence, when viewed as a coherent whole, was neither inherently improbable nor in direct conflict with the other evidence before the Court, and is therefore worthy of acceptance. I find the Plaintiff’s witnesses to be credible and measured witnesses whose testimony withstood scrutiny.

Learned counsel for the Plaintiff submitted that the incident happened solely from the negligence of the First Defendant, with no evidence of any fault on the Plaintiff.

Rebutting the preceding argument, learned counsel for the Defendants submitted that the Plaintiff’s own conduct materially contributed to the occurrence of the accident. She further argued that the Plaintiff, by electing to cross the road at a busy location lacking a pedestrian crossing, placed himself in a position of danger and bears a greater share of responsibility for the incident. Concluding her submissions, she submitted that the Plaintiff’s contributory negligence should be assessed at 70%, with the Defendants’ share of liability accordingly reduced to 30%.

I find it apposite to state, at the outset, a succinct summation of the law by Faizah Jamaludin J (now JCA) concerning the authoritative precedents on contributory negligence in the High Court case of Gurisha Taranjeet Kaur & Anor v. Dr Premitha Damodaran & Anor [2020] 9 MLJ 409; [2020] 6 CLJ 446, wherein Her Ladyship observed: “[122] What is contributory negligence and what is the test to determine whether there was contributory negligence? Clerk & Lindsell on Torts, 12th edn., Sweet & Maxwell, referring to Ellerman Lines Ltd v. H & G Grayson Ltd [1919] 2 KB 514 at 535; and [1920] AC 466 at 477; Lewis & Denye [1939] 1 KB 540 at 544; Davies v. Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 309; Jones v. Livox Quarries Ltd [1952] 2 QB 608 at 615 states that: Contributory negligence does not mean that claimant commits a breach of duty towards the defendant,... it means that the claimant failed to use reasonable care for his own safety and so contributed to his own damage. [123] The Federal Court in Ong Ah Long v. Dr. S Underwood [1983] CLJ (Rep) 330; [1983] 2 MLJ 324 held that the learned High Court Judge had applied the correct test in determining whether there was contributory negligence. Syed Agil Barakbah FJ at p. 304 (CLJ); p. 327 (MLJ) held: The learned Judge applied the correct test in that the appellant had failed to prove that the respondent did not on his own interest take reasonable care of himself and contributed by that want of care to his own injury. [Lewis v. Denyé [1939] 1 All ER 310]. The test for contributory negligence in the case of a pedestrian is not whether he is under a duty of care towards the defendant, but whether he was acting as a reasonable man and with reasonable care. (Per Denning LJ in Davies v. Swan Motor Co [1949] 1 All ER 620.) (emphasis added) [124] In Ong Ah Long, the Federal Court referred to an English Court of Appeal case of Lewis v. Denyé [1939] 1 All ER 310, where the court held: In order to establish the defence of contributory negligence, the defendant must prove (i) that the Plaintiff failed to take "ordinary care for himself," or, in other words, such care as a reasonable man would take for his own safety, and (ii) that his failure to take care was a contributory cause of the accident. The doctrine of contributory negligence "cannot be based upon a breach of duty to the negligent defendant": Craze v. Meyer - Dumore Bottlers' Equipment Co Ltd, Salmond on Torts, 9th Edn, at pp 472, 473, and Grayson (H & C) v. Ellerman Line Ltd, per Atkin LJ, at pp 535, [125] In Jones v. Livox Quarries LD [1952] 2 QB 608, Lord Denning said the following as regards contributory negligence: Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for the consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is: What faults were there which caused the damage? Was his fault one of them? (emphasis added) [126] The test in Jones v. Livox Quarries LD, was adopted by Lamin Yunos J (as he then was) in Ruhani Mohiat & Anor v. Abdul Karim

Mat Ali & Anor [1993] 3 CLJ 524; [1993] 2 AMR 1339; [1993] MLJU ” “[127] It is clear from these aforementioned cases that contributory negligence is not based on the claimant's duty of care to the negligent defendant. It is dependent on whether the claimant ought to have reasonably foreseen the harm to himself if he failed to take reasonable care of himself. A person is contributory negligent for the harm caused to himself if he ought reasonably to have foreseen the injury and he did not take reasonable care of himself.”

Having examined the totality of the evidence, I find no basis to attribute any contributory negligence to the Plaintiff. On the contrary, the evidence shows that he exercised the care a reasonable person would take for his own safety. The accident was wholly precipitated by the conduct of the First Defendant. In my judgment, the Plaintiff is not contributorily negligent for the harm caused to himself, for, in the circumstances, he could not reasonably have foreseen the injury and had taken reasonable care for his own safety.

What follows is my analysis of the principal factors that, in my view, demonstrate the Plaintiff’s absence of contributory negligence:

No Evidential Basis for Attributing Contributory Negligence

Having found on the balance of probabilities that the Plaintiff’s version, namely that he was standing at the roadside under the shelter of the food stall when he was struck from behind by the First Defendant’s vehicle, is the more probable account, I am satisfied that the Plaintiff was not contributorily negligent. His conduct reflected that of a reasonable person exercising ordinary care for his own safety, and in my view there is nothing in the evidence to suggest that his manner of standing and waiting at the stall contributed in any way to the accident. Viewed through the factual lens, the danger arose suddenly and could not reasonably have been foreseen, and the Plaintiff had taken the reasonable precautions to his safety by standing in a sheltered and stationary position at the roadside. I, therefore, find no basis to attribute any share of fault to him at this preliminary stage of analysis.

(ii) Agony of the Moment

Turning to the nature of the hazard confronting the Plaintiff, I find that it arose suddenly, unexpectedly, and without warning. The law recognises that a person cannot reasonably be held responsible for failing to avoid a danger that presents itself in such a manner, particularly when the circumstances did not afford any prior indication of risk and the hazard emerged instantaneously from the First Defendant’s own conduct. By failing to maintain proper vigilance and control of her vehicle, she demonstrated a want of ordinary care. The situation was not externally imposed or unforeseeable, but entirely of her own making. To my mind, this scenario strongly militates against any inference of contributory negligence, as the danger arose entirely outside the Plaintiff’s control. 1 LNS 45: “To my mind, when a plaintiff is perplexed or agitated when exposed to danger by the wrongful act of a defendant, it is sufficient if he shows as much judgment and control in attempting to avoid the accident as may reasonably be expected of him in the circumstances. … What is done or omitted to be done in the agony of the moment cannot be fairly treated as negligence.”

This principle finds direct application in the present case. On the Plaintiff’s probable version of events, he was stationary at the roadside, standing in the rain while waiting for PW4 to bring an umbrella, and was struck from behind, such that he had no reasonable opportunity to perceive the approaching vehicle, let alone to take evasive action. The evidence further indicates that there was no reasonable course of conduct available to him to mitigate the danger or avoid the incident. In these circumstances, I am unable to find any fault in the Plaintiff’s conduct.

(iii) RTM Classification in the Context of Contributory Negligence

As regards the Defendants’ argument that the RTM classification of this case gives rise to contributory negligence, I find it wholly unpersuasive. As noted earlier in this judgment, the Investigating Officer’s findings were confined to post-accident investigation and did not involve any personal observation of the incident. To merely anchor a claim of contributory negligence on the procedural classification as RTM, or even on the absence of a summons against the First Defendant, is unsustainable, as such procedural outcomes do not amount to a finding of fault and cannot displace the Court’s exclusive role in independently assessing negligence on the totality of the evidence.

(iv) Absence of Contributory Negligence and the Plaintiff’s Reasonable Care for Safety

The duty of care imposed by law requires reasonable vigilance, not excessive caution, and does not oblige one to foresee every conceivable lapse by another road user. The Plaintiff, a seventy-four-year-old man standing at the roadside under the zinc roof of a food stall awaiting an umbrella from PW4, could not reasonably have foreseen any risk of personal harm from the First Defendant’s vehicle. The sudden proximity of the vehicle to the roadside created a hazard that was entirely beyond his control. And the Federal Court in Ong Ah Long v. Dr. S Underwood [1983] CLJ (Rep) 330; [1983] 2 MLJ 324 makes apparent that contributory negligence does not import a breach of duty toward the First Defendant but arises only where the Plaintiff fails to take reasonable care for his own safety and thereby contributes to his injury. basis to attribute any contributory negligence to the Plaintiff. The Plaintiff fulfilled that duty, and I am satisfied that he was under no obligation to take extraordinary or speculative measures beyond what the objective “reasonable man” test demands (See: Ong Ah Long v. Dr. S Underwood [1983] CLJ (Rep) 330; [1983] 2 MLJ 324).

The precedents cited by the Defendants, where transactions were held unenforceable for breaching the Act and failing to rebut the statutory presumption, are clearly distinguishable in fact and context and offer no meaningful guidance.

What emerges below is a comparative analysis of the precedents cited for the Defendants in relation to the present case.

Chavaryas Asmath v Zaleha Binti Taib [2020] 2 PIR [38] In Chavaryas Asmath, the High Court apportioned liability at 70% to the pedestrian and 30% to the driver. In so apportioning, it was held that the pedestrian’s act of remaining in the middle of the road without any reasonable justification was extremely dangerous and contrary to section 48 of the Road Transport Act 1987 and rule 16 of the Road Traffic Rules 1959 (LN 166/1959), which would ordinarily amount to 100% contributory negligence. However, on the facts, the driver became aware of the pedestrian’s presence in the middle of the road at a distance of approximately one motorcycle length and ought to have been able to avoid the accident by taking reasonable and appropriate action but failed to do so.

Letchumay Palaniappan v. Mahalingam Subramaniam & Anor [2012] 7 CLJ 271 In Letchumay Palaniappan, the High Court held that although the pedestrian was negligent in crossing and standing in the middle of a heavily trafficked road, thereby exposing herself to obvious danger, the lorry driver was not entirely blameless as the injuries sustained were more consistent with the pedestrian’s version of events. The High Court held that the Sessions Court had erred in accepting the lorry driver’s evidence. Accordingly, the High Court set aside the finding of 100% negligence against the pedestrian and apportioned liability at 70% to the pedestrian and 30% to the lorry driver.

Sukatno v. Lee Seng Kee & Anor [2009] 4 CLJ 171 In Sukatno, the Court of Appeal held that the van driver owed a duty of care to the pedestrian, who was lawfully walking on the road and entitled to expect the defendant to exercise reasonable care while driving, although the pedestrian was also required to take reasonable care for his own safety. It was held that there was no basis to interfere with the Sessions Court’s finding of contributory negligence, and liability was accordingly apportioned at 50% to the pedestrian and 50% to the van driver.

Siti Aisha Binti Ibrahim v Goh Cheng Hwai [1982] 2 MLJ 124 In Siti Aisha, the Federal Court held that the respondent was negligent in failing to take proper precautions, while the pedestrian was also not free from blame as she attempted to cross the road without fully ensuring that it was safe to do so. Accordingly, liability was apportioned equally at 50% to the respondent and 50% to the pedestrian.

Saidi Yaacob v. Ibrahim Awang & Anor. [1983] CLJ REP 834 In Saidi Yaacob, the High Court found that the driver was negligent in failing to take reasonable precautions to prevent the accident, as they ought to have foreseen that a pedestrian might attempt to cross between the stopped lorries and failed to warn or stop such an action. The pedestrian was also contributorily negligent for voluntarily taking the risk of crossing between the lorries. The High Court apportioned the liability equally at 50% to the driver and 50% to the pedestrian.

Upon in-depth consideration of the opposing contentions and the whole spectrum of the pleadings and the web of evidence woven thoroughly scanned, I find that the Plaintiff has on the balance of probabilities has established “… affirmatively that there has been a breach of a specific or genuine duty by the defendant and this resulted in the damage to the plaintiff...” to which Hashim Yeop A. Sani J (later CJM) alluded to in Ng Chui Sai.

And I further find on the balance of probabilities that the Plaintiff exercised the care a reasonable person would take for his own safety. It follows that the Defendants have not established that the Plaintiff failed to take ordinary care for himself, and that such a failure was a contributory cause of the accident. In my judgment, the Plaintiff acted “…as a reasonable man and with reasonable care” as Syed Agil Barakbah FCJ stated in Ong Ah Long, and therefore no fault can be attributed to him. ARGUMENT ON QUANTUM

Before turning to quantum, I first consider the Medical and Specialist Reports. These describe the injuries sustained by the Plaintiff in the accident. The parties have agreed to their admissibility for this purpose, subject to submissions, namely:

Medical Report dated 05.06.2024 prepared by Dr. Saiful Bakhtiar Bin Zainal from BTMC (pages 3 and 4 in Bundle B).

(ii) Clarification Medical Report dated 04.08.2024 prepared by Dr. Saiful Bakhtiar Bin Zainal from BTMC (page 5 in Bundle B).

(iii) Medical Report dated 28.11.2023 prepared by Dr. Choo Qi Qi from HTAR Klang (pages 7 and 8 in Bundle B).

(iv) Clarification Medical Report dated 01.06.2024 prepared by Dr. Choo Qi Qi from HTAR Klang (page 10 in Bundle B).

Clarification Medical Report dated 19.07.2024 prepared by Dr. Choo Qi Qi from HTAR Klang (page 11 in Bundle B).

(vi) Orthopaedic Specialist Medical Report selected by the Plaintiff dated 07.06.2024 prepared by Dr. Suntharalingam from Pantai Hospital, Cheras (pages 15 to 25 in Bundle B).

(vii) Orthotic Report selected by the Plaintiff dated 07.11.2024 prepared by Siti Izaura Kamaruddin from Limb Brace Rehab Appliances (pages 1 to 19 in Bundle C).

(viii) Clarification Report by the Plaintiff’s Orthopaedic Specialist dated 28.11.2024 prepared by Dr. Suntharalingam from Pantai Hospital, Cheras (pages 1 and 2 in Bundle D).

(ix) Orthopaedic Specialist Medical Report selected by the Defendants dated 19.10.2024 prepared by Dr. Gayathri P. Arumugam from Columbia Asia Petaling Jaya (pages 1 to 15 in Bundle F).

Orthotic Report selected by the Defendants dated 31.12.2024 prepared by A.N. Mohamed Anfas from Ideal JNJ Walk Sdn Bhd (pages 1 to 15 in Bundle E). CONFLICTING SPECIALIST REPORTS

I should, at this juncture, heed the salutary statement of principles by Harmindar Singh Dhaliwal JCA (later FCJ) in the Court of Appeal case of Jitweer Singh a/l Ojagar Singh v. Public Prosecutor [2017] 2 CLJ 561; [2016] 4 MLJ 525, where His Lordship addressed with utmost clarity the manner in which conflicting expert medical opinions to be evaluated, that merit quotation in full: “[43] It is trite law that a judge must not consider expert evidence in a vacuum in the sense that the same should not be artificially separated from the rest of the evidence. When there is conflicting expert opinion, a judge should test it against the background of all the other evidence available in that particular case in order to decide which expert evidence is to be preferred. In particular, a judge must have regard to the direct evidence, whether in the form of oral evidence or contemporaneous documents, and the overall circumstances material to the issue at hand. The version more consistent with these ought to be accepted as being more trustworthy and reliable. [44] The Supreme Court of India in Piara Singh and Ors v. State of Punjab 1977 AIR 2274 laid down the approach to be adopted when the opinion of one expert differs from another as follows: What has happened is that two experts, namely, Dr Jatinder Singh and Dr Paramjit Singh had differed in their opinions. The High Court rightly observed that in view, of the difference of opinion between the two experts the evidence of Dr Jatinder Singh must be preferred as it is supported by the evidence of the eye-witnesses whose evidence is both reliable and trustworthy and is also supported by other circumstances proved in the case. It seems to us that where there is a conflict between the opinion of two experts the Court should normally accept the evidence of the expert whose evidence is corroborated by direct evidence of the case which according to the Court is reliable. [45] It is also trite that a trial judge should not be quick to reject evidence of an expert whose findings are based on reports of facts unless the judge is satisfied that the inference or opinion derived from the said reports of facts is unsound. In evaluating the conflicting experts' evidence the approach ought to be to examine the scientific grounds and bases on which they rely (Singapore Finance Ltd v. Lim Kah Ngam (S'pore) Pte Ltd & Eugene HL Chan Associates (Third Party) [1984] 1 LNS 3; [1984] 2 MLJ 202).” (Emphasis added)

In assessing the damages, I have weighed the Medical and Specialist Reports, the guidance of the Compendium, the comparative levels of compensation in cognate cases, the residual disabilities and the particular circumstances which give this case its distinct character.

Upon that canvas, I now turn to my assessment of damages.

Non-Union Closed Right Proximal Humerus Fracture

Learned counsel for the Plaintiff submitted an amount of RM35,000.00. The comparable awards relied upon were the cases of Muhammad Hanafi Thaldiri lwn. Osman Abdul Rahman & Satu Lagi [2024] MLRHU 1341, wherein the High Court affirmed the award of RM30,000.00 as awarded by the Sessions Court for a closed fracture of the distal third of the left humerus, and Ramesh Kumaran lawan. Zamri Abdullah & Satu Lagi [2019] MLRSU 7, wherein the court awarded RM27,000.00 for a closed comminuted fracture of the proximal right humerus.

Whereas, learned counsel for the Defendants submitted an amount of RM20,000.00. The comparable awards relied upon were the cases of Kalaiyarasu a/l Gopalakrishnan v Vinoth a/l Ponniah (and Another Suit) [2024] 1 PIR [25] wherein the Court awarded RM20,000.00 for a fracture of the right humerus.

The Compendium states that the compensation for humerus bone injury ranges from RM12,000.00 to RM27,500.00.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The Plaintiff’s Medical Report states: “Closed Right Proximal Humerus Fracture”

The Plaintiff’s Specialist states: “Closed Right Proximal Humerus Fracture”

The Plaintiff’s Specialist further states the Plaintiff suffered the following residual disabilities:

“There is one centimetre shortening of the right arm.”

(ii) “There is limitation of movements of the ........ right shoulder”

(iii) “Tenderness and deformity of the right shoulder”

(iv) “The rotation movements of the right shoulder are limited”

“There is severe stiffness of the right shoulder”

(vi) “Tan Seng Hin will have residual disabilities of his right shoulder and knee. He will not be able to do any kind of activities that require prolonged standing, walking, and squatting as well as activities that prolonged use of right arm and carrying of heavy objects.”

The Radiology Report states:

“Right humerus neck non fracture with lucent gap at fracture site”.

(ii) “There are marginal bony spurs/ callus noted around the fracture sites”.

The Defendants’ Specialist states: “Anteroposterior and lateral view of the right shoulder shows non-union of the right proximal humerus …”

As regards the residual disabilities, the Defendants’ Specialist states:

“On examination, the range of movement of the right shoulder is reduced compared to the left.”

(ii) “The muscle strength of the right shoulder is reduced at Medical Research Council (MRC) grade 4.”

Addressing the figure advanced for the Defendants, I find that such a figure does not adequately account for the nature of the fracture, the objective radiological findings of non-union, nor the permanent residual disabilities affecting the Plaintiff’s right shoulder. In particular, it fails to reflect the continuing functional limitations, reduced range of movement, diminished muscle strength, and the lasting impact on the Plaintiff’s ability to use his right arm for daily and occupational activities, as consistently borne out by both parties’ medical evidence.

I, therefore, award RM27,000.00 under this head of injury.

(ii) Malunited Closed Right Tibia Plateau Fracture and Closed Fracture of the Right Fibular Head/ Neck

Learned counsel for the Plaintiff submitted an amount of RM45,000.00. The comparable awards relied upon were the cases of Chong Kok Meng & Anor v. Muhammad Zahirulzahar Zainudin [2019] 1 LNS 541, wherein the High Court increased the award as awarded by the Sessions Court from RM35,000.00 to RM50,000.00 for a malunited open fracture of the right lateral condyle tibial plateau (Schatzker VI) with fracture of the fibula neck, and Lee Chau @ Lee Ah Choo v. Lee Chee Beng & Anor [2014] PILRU 56, wherein the court awarded RM40,000.00 for a closed fracture of the lateral condyle of the left tibia.

Whereas, learned counsel for the Defendants submitted an amount of RM14,000.00, relying on the case of Kovalan a/l Rajoo v Hanif Bin Muhamad Pauzi [2016] 2 PIR [36] wherein the Court awarded RM13,000.00 for fracture neck of the left fibula. She further submitted an amount of RM24,000.00 for a closed right tibia plateau fracture, relying on the case of Murad Bin Norwi v Holilah Binti Holil [2017] 2 PIR [39] wherein the Court awarded RM24,000.00 for closed fracture of the left tibial plateau, bringing the total quantum of RM38,000.00.

The Compendium states that compensation for tibia and fibula bone injuries ranges from RM36,000.00 to RM60,000.00.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The BTMC Report states: “Comminuted fracture of the medial tibial plateau and head of fibula.”

The HTAR Klang Report states: “Closed Right Tibia Plateau Fracture.”

The HTAR Klang Clarification Report states: “Based on available documentation, patient sustained closed right tibia plateau fracture (right medial condyle tibia is part of tibia plateau) with right fibula head fracture”.

The Plaintiff’s Specialist Report states:

“Closed right tibia plateau fracture.”

(ii) “Closed fracture of the right fibular neck.”

The Pantai Hospital Report states: “Right proximal tibia metadiaphysis and right fibular head/ neck united fracture with sclerotic callus seen at fracture sites.”

The Defendants’ Specialist Report states:

“He ambulates with a single walking stick.”

(ii) “He has an antalgic gait.”

(iii) “The patient currently only complaints of occasional discomfort over the right knee that too on exertion…”

(iv) “The patient has 1 cm shortening of the right lower limb.”

During the trial proceedings, I observed that the Plaintiff attended court using a walking stick for support while walking.

Addressing the figure advanced for the Defendants, I find that such a figure does not adequately reflect the seriousness of the fractures sustained, the involvement of both the tibial plateau and fibular head, nor the objective evidence of lasting functional impairment. In particular, it fails to take proper account of the Plaintiff’s antalgic gait, limb shortening, continued reliance on a walking aid, and the residual discomfort on exertion, all of which are borne out by the medical evidence and my own observations during trial.

I, therefore, award RM40,000.00 under this head of injury.

(iii) Wasting of Muscles

Learned counsel for the Plaintiff submitted an amount of RM20,000.00. The comparable awards relied upon were the cases of Khairul Amri B Subri & Anor v. Mohd Sofi B Saad & 2 Ors [2008] 1 PIR [65], wherein the Court awarded RM10,000.00 for 2.5 cm muscle wasting of the right thigh and right calf, and Hanif bin Muhamad Pauzi Rajoo [2015] 2 PIR [31], wherein the court awarded RM10,000.00 for muscle wasting of the right deltoid, arm, forearm, calf and thigh.

Whereas, learned counsel for the Defendants submitted an amount of RM10,000.00, relying on the case of Muhammad Amin Bin Azimi v Abdul Bazeeth Bin Mohamad Ali & Anor [2014] 1 PIR [57] wherein the Court awarded RM10,000.00 as a global sum for muscle wasting.

The Compendium states that compensation for muscle wasting ranges from RM3,000.00 to RM5,000.00.

Having considered the submission as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist Report states:

There is two-centimetre wasting of the right thigh and calf muscles.

(ii) There is two-centimetre wasting of the right arm and forearm muscles.

The Plaintiff’s Specialist’s findings of muscle wasting were supported by photographs which clearly showed that the Plaintiff’s right arm, hand, thigh, and calf were slightly smaller in size compared to the left side.

The Defendants’ Specialist Report states: “On examination, there is presence of muscle wasting of the right arm, forearm, thigh and calf. There is also reduced muscle power of the right shoulder.”

As is apparent, the muscle wasting sustained by the Plaintiff is not confined to a single region but extends to four distinct muscle groups, namely the right arm, forearm, thigh, and calf. Such multiple-site involvement signifies a broader and more serious degree of functional loss, affecting both upper and lower limbs.

Addressing the figure advanced for the Defendants, I am unable to accept that a global sum of RM10,000.00 properly reflects the nature and extent of the Plaintiff’s muscle wasting, which is neither minimal nor confined to a single anatomical region.

I, therefore, award RM20,000.00 under this head of injury.

(iv) Laxity of Lateral Collateral Ligament of the Right Knee

Learned counsel for the Plaintiff submitted an amount of RM25,000.00. The comparable awards relied upon were the cases of Mohamed Ali Jinah v Lui Kuan Yong [2010] 1 PIR [39], wherein the Court awarded RM20,000.00 for laxity of the posterior cruciate ligament, and Mohd Saiful Azlan B A Bakar & Anor v Billy Low Nai [2011] 1 PIR [79], wherein the court awarded RM20,000.00 for Grade 1 laxity of the lateral collateral ligament.

Whereas, learned counsel for the Defendants submitted an amount of RM20,000.00, relying on the case of Muhammad Yazid Bin Tasra Dan Satu Lagi v Purwanto Bin Purwadi Dan Satu Lagi [2020] MLJU 112 wherein the Court awarded RM20,000.00 for the same injury.

The Compendium states that compensation for knee ligaments (anterior/ posterior cruciate) ranges from RM18,000.00 to

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff, though I differ marginally on the quantum. My assessment proceeds as follows:

The HTAR Klang Report states: “There were (sic) no documentation on special examination done in ward or clinic for patient’s right knee laxity status.”

The Plaintiff’s Specialist Report states: “Laxity of the lateral collateral ligament ++ of the right knee”.

The Defendants’ Specialist Report states: “He does have Grade 1 laxity of his lateral collateral ligament…”

The Plaintiff’s Specialist Report (post-the Defendants’ Specialist Report) states: “Yes, there is laxity of lateral collateral ligament ++ of the right knee and hence he has right knee instability.”

The Plaintiff’s Orthotist Report states:

“There for clinical test are assessed on patient to determine the laxity/ instability of right knee sustained by patient due to the accident. The result from all tests assessed are positive in varus stress test.”

(ii) “Patient has laxity of right knew lateral collateral ligament

(LCL).”

The Defendants’ Orthotist Report states: “… Also, during my physical examination, I found 1 cm shortening of right lower limb, Bilateral LCL Laxity (Grade 1).”

I find, on the balance of probabilities, that the Plaintiff’s LCL laxity in the right knee is a direct consequence of the accident and not pre-existing, for these reasons:

The Plaintiff sustained an injury to the right knee consistent with radiological findings of fractures to the tibial plateau and the head of the fibula, both anatomically contiguous with the knee joint. This correlation reinforces that the injury to the knee was significant and directly attributable to the trauma sustained.

(ii) There is no evidence of any pre-existing ligamentous abnormality in the right knee.

(iii) The Plaintiff consistently complained of pain in the right knee, not the left.

(iv) The Plaintiff’s antalgic gait and reliance on a walking aid only emerged after the accident. Had such laxity existed bilaterally before the incident, it is improbable that he would have been able to walk normally prior to the accident or that the symptoms would have manifested solely thereafter.

I, therefore, award RM20,000.00 under this head of injury.

Posttraumatic Osteoarthritis of the Right Knee and Right

Learned counsel for the Plaintiff submitted an amount of RM10,000.00 for both right knee and right shoulder. The comparable awards relied upon were the cases of Shamsudin bin Busu v. Mustafa bin Selamat & Anor (and another suit) [2012] 1 PIR [33] and Chu Minh Tien & Anor v Ng Chee Kin & Anor [2007] 1 PIR [16], wherein the Court awarded RM5,000.00 for disuse osteoporosis.

Whereas, learned counsel for the Defendants submitted an amount of RM5,000.00, relying on the case of Vasan a/l Devarassoo v Mohd Nur Azuan Bin Alwi Noorbi & Anor (And Another Summons) [2014] 1 PIR [11] wherein the Court awarded RM5,000.00 for osteoarthritis of the left knee.

The Compendium states that compensation for osteoporosis stands at RM5,000.00.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist Report states:

“Posttraumatic osteoarthritis of the right shoulder.”

(ii) “Posttraumatic osteoarthritis of the right knee.”

The Plaintiff’s Specialist, in his report, has incorporated the Imaging Report conducted by the Radiology Specialist from Pantai Hospital, which demonstrates:

“There is right shoulder joint/ right ACJ OA with bony spurs/ sclerosis noted”.

(ii) “There is right knee OA with marginal osteophytes and patellar articular surface irregularity with suprapatellar bursa effusion noted, in keeping with osteochondral defect …”

I find, on the balance of probabilities, that the Plaintiff’s posttraumatic osteoarthritis of the right knee and right shoulder is a direct consequence of the accident and not pre-existing, for the following reasons:

There was no medical evidence adduced to establish the existence of posttraumatic osteoarthritis in the right knee and right shoulder prior to the accident.

(ii) There was no medical history suggesting that such conditions existed before the incident.

Had the Posttraumatic Osteoarthritis predated the accident, the Plaintiff would have complained of pain and exhibited disability in both shoulder and knee joints, rather than solely in the right-side joints.

Addressing the figure advanced for the Defendants, I find that it understates the extent of injury, given that posttraumatic osteoarthritis has been established in both the right knee and the right shoulder.

I, therefore, award RM10,000.00 under this head of injury.

(vi) Post-Traumatic Sympathetic Dystrophy

Learned counsel for the Plaintiff submitted an amount of RM10,000.00. The comparable awards relied upon were the cases of Diniyarif Fairus ‘Shaba v. Jaafar Abu & Ors [2021] PILRU 20, Tan Chit Cuang & Satu Lagi lwn Chua Chu Hua [2015] 1 LNS 1302 and Gunalan Chandakesan & Anor Tamil Arusu Velu [2014] 1 LNS 928, wherein RM10,000.00 was awarded for Posttraumatic Sympathetic Dystrophy.

Whereas, learned counsel for the Defendants made no submission under this heading.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff expressly pleaded Post-Traumatic Sympathetic Dystrophy in his statement of claim under “BUTIR-BUTIR KECEDERAAN PLAINTIF” (See: Paragraph 7 of the Plaintiff’s Statement of Claim).

The Plaintiff’s Specialist Report states:

“The pain on the right knee worst during the cold weather is due to Posttraumatic Sympathetic Dystrophy (a nervous response to injury resulting in pain and swelling exaggerated in the cold). This condition is usually permanent.

(ii) “The complaint of pain on the right shoulder worst during the cold weather is due to Posttraumatic Sympathetic Dystrophy (a nervous response to injury resulting in pain and swelling exaggerated in the cold). This condition is usually permanent.”

The Defendants’ Specialist Report denied that the Plaintiff suffered any Post-Traumatic Sympathetic Dystrophy of the right upper and lower limb.

The Plaintiff’s Specialist Clarification Report (post the Defendants’ Specialist Report), however, states: “The Posttraumatic Sympathetic Dystrophy (PTSD) is a clinical diagnosis and the Budapest criteria is used as a guideline to help a clinical to make the diagnosis. Unfortunately, there is no objective test like a X rays or blood test, to confirm the diagnosis of PTSD. Hence when I saw the patient his complaints reflected PTSD and when he saw Dr. Gayathri a/p P Arumugam his complaints may not have reflected PTSD. In conclusion it is a clinical diagnosis and many research papers have confirmed that it is a clinical diagnosis and no objective test is currently present.”

The Plaintiff’s Specialist, giving evidence in his capacity as an Orthopaedic Specialist, concluded that the Plaintiff had sustained post-traumatic sympathetic dystrophy. To argue that there was no reliable medical basis to sustain the claim is, in my view, unsustainable, having regard to the clear explanation provided in the preceding report.

The Plaintiff led unchallenged evidence that the discomfort in his right shoulder intensified during cold conditions (See:

The Defendants did not impugn the accuracy or credibility of the preceding testimony. The uncontradicted evidence carries considerable weight and supports a finding that the pain experienced by the Plaintiff was genuine, enduring, and materially disruptive to his daily activities.

Applying the principle established in Jitweer Singh, I test the conflicting Specialists’ Reports concerning the Post-Traumatic Sympathetic Dystrophy against the totality of reliable evidence and the overall circumstances. Having done so, I find the Plaintiff’s Specialist’s Report to be more consistent with the evidential matrix and therefore the more trustworthy and reliable.

I, therefore, award RM10,000.00 under this head of injury.

(vii) Pain and Suffering for two future surgeries

Learned counsel for the Plaintiff submitted that the Plaintiff ‘s Specialist recommended two future surgeries, namely: (i) Total Knee Replacement; and (ii) Total Shoulder Replacement. He submitted an amount of RM10,000.00 for both surgeries. The comparable awards relied upon were the cases of Ramesh Kumaran lwn Zamri Abdullah & 1 Lagi [2019] MLRSU 70, wherein the Court awarded RM5,000.00 for pain and suffering arising out of total knee replacement, and Ahmad Basit Suri lwn. Muhamad Hafizul Abdul Safari & Satu Lagi [2016] 5 LNS 44 wherein the Court awarded RM10,000.00 for pain and suffering for future surgeries.

Whereas, learned counsel for the Defendants made no submission under this heading.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff.

I tether my reliance to the High Court case of Shanmugam Gopal, where Mohd Noor Abdullah J (later JCA) reversed the Sessions Court Judge’s decision in not granting the award for pain and suffering for a future operation wherein it was observed: “The next issue raised by the appellant's counsel was with regard to the failure of the Sessions Court judge to make an award for pain and suffering for the future operation which the plaintiff had to undergo for the removal of the plate and screws. Undoubtedly, no person likes to undergo an operation. The anxiety caused is terrible. The plaintiff will have to travel back and forth from the hospital for dressing of the surgical wound and the removal of stitches. General damages which are awarded for a tortuous act committed against a person or his property is a civil remedy which has as its aim to put the injured party back as it were, as far as possible to his original position maintained by him prior to the tortuous act which resulted in injury or damage…. Although this is a future operation, the award for pain and suffering has to be made at the date of the decision so as to bring about the finality of the claim.”

I, therefore, award the sum of RM10,000.00 for the pain and suffering for two future surgeries.

The Plaintiff’s Family’s Travelling Expenses to Visit the Plaintiff

Learned counsel for the Plaintiff submitted an amount of RM90.00 for the Plaintiff’s family’s travelling expenses to visit the Plaintiff whilst he was in the hospital.

Whereas, learned counsel for the Defendants submitted that the claim should be dismissed as unproven.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff expressly pleaded the Plaintiff’s family’s travelling expenses to visit the Plaintiff whilst he was in the hospital in paragraph 8(a) under “BUTIR-BUTIR GANTIRUGI KHAS PLAINTIF” of his statement of claim, constituting part of the special damages.

The Plaintiff led evidence in court establishing that his family members visited him whilst he was in the hospital. (see:

The Plaintiff led evidence in court establishing that such costs were in fact incurred for that purpose. (see: Answer to

Given the factual canvas of the present case, it requires little imagination to accept that the Plaintiff, a 74-year-old (at the material time) confined to hospital by injury, would be visited by his family. Such visits are the natural and foreseeable response to his condition, and they inevitably attracted costs, which were properly pleaded and substantiated by direct testimony in court.

Addressing the submission advanced for the Defendants, I find no merit in the contention that the claim is unproven. In circumstances where family visits were not disputed, the Court may properly take judicial notice that reasonable travelling expenses would have been incurred.

L C Vohrah J in Kasirin Kasmani v. The Official Administrator & Anor [1991] 1 MLRH 325; [1991] 2 CLJ 800 observed: “As to the claims for the items of special damages not agreed upon, in the absence of any proof of actual expenditure in the form of receipts I would award the sum of RM560 at the rate of RM20 per day for the wife's transport and living expenses for the 28 days she had to reside in Johore Bahru in order to visit the plaintiff at Hospital Sultanah Aminah in Johore Bahru…. Again in the absence of actual proof, I would award the sum of RM400 for her transport expenses for her visits to the plaintiff at Hospital Daerah Banting which is near the kampong where she lived.”

Also, I subscribe to the observation by Yusof Abdul Rashid J in Chan Kim Hee, wherein His Lordship observed: “The court was of the view that the taxi fare to and from Malacca General Hospital was about $20. It was reasonable for the members of the plaintiff's family to visit him while the plaintiff was hospitalised. According to the plaintiff, the family visited him sometimes twice a week. The court found that it was reasonable for the members of the family to have made 10 trips and so awarded a sum of $200 under this item.”

I, therefore, award the sum of RM90.00 under this head of claim.

(ii) The Plaintiff’s Travelling Costs – outpatient treatments

Learned counsel for the Plaintiff submitted an amount of RM30.00 for the Plaintiff’s travelling costs for outpatient treatments.

Whereas, learned counsel for the Defendants submitted that the claim should be dismissed as unproven.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff expressly pleaded travelling expenses for such visits in paragraph 8(b) under “BUTIR-BUTIR GANTIRUGI KHAS PLAINTIF” of the statement of claim, forming part of the special damages.

The Plaintiff led evidence in court establishing that he sought outpatient treatment. And outpatient treatment necessarily entails both travel and attendant costs. (see: Answer to

The Plaintiff led evidence in court establishing that such costs were in fact incurred for that purpose. (see: Answer to

Addressing the submission advanced for the Defendants, I am unable to accept that the claim is unproven. The Plaintiff’s evidence of outpatient attendance was not challenged, and the Court is entitled to take judicial notice that such attendance necessarily involves travelling expenses.

I, therefore, award the sum of RM30.00 under this head of claim.

(iii) Claim for loss of clothing, wristwatch, cash, jewellery, laptop and mobile phone

Learned counsel for the Plaintiff submitted that the Plaintiff has withdrawn the claim under this head of claim.

In view of the Plaintiff’s express withdrawal, this head of claim stands formally withdrawn from further consideration.

(iv) Costs for Medicines, orthopaedic appliances, and treatment

Learned counsel for the Plaintiff submitted an amount of RM13,875.50 for the Plaintiff’s medicines, orthopaedic appliances, and treatment costs.

Whereas, learned counsel for the Defendants submitted that the claim should be dismissed as unproven.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

Mahadev Shanker, in Wahat Hj. Yahya & Ors. v. Sim Wi Fat & Anor. [1988] 2 CLJ Rep 536 observed: “Having said all this, I cannot ignore the fact that it is commonplace in Malaysia for victims of traumatic injuries to increase their intake of proteins, fruits or herbal mixtures in the belief that this will assist them towards a speedy recovery. Where there is positive evidence of reasonable expenditure incurred in this direction, it is my view that there is room for sympathetic consideration of such claims.

The Plaintiff expressly pleaded his claim under this heading in paragraph 8(d) under “BUTIR-BUTIR GANTIRUGI KHAS PLAINTIF” of the statement of claim, forming part of the special damages.

The Plaintiff led evidence establishing his claim under this heading. (see: Answers to Questions 30, 31 and 32 of the

It is a common and ordinary practice for any individual who has sustained injuries to take medication, supplements, and vitamins to aid in recovery. This is especially reasonable in the present case, as the Plaintiff is an elderly person.

The evidence shows that the Plaintiff purchased nutritional supplements and vitamins amounting to RM4,695.50, as reflected at pages 51 and 52 of Bundle B and marked as ID12 (A and B).

The Plaintiff also purchased bone care medication online, as shown in ID12 (C to K) at pages 53 to 61 of Bundle B. I accept that these purchases are reasonably connected to the Plaintiff’s bone injuries and form part of his overall rehabilitation effort. The total cost of these medications is RM9,180.00.

On the totality of the evidence, I find that these expenditures were reasonably necessary to alleviate the effects of the injuries suffered by the Plaintiff, and are therefore recoverable as part of special damages.

I find that the Plaintiff has discharged the evidential burden of proving these expenses on a balance of probabilities. The amount claimed is fair, credible, and properly substantiated by documentary evidence.

It is evident that there exists positive evidence of reasonable expenditure incurred, as affirmed in Wahat Hj. Yahya, which entitles the Plaintiff to recover under this head. In the light of this precedent, I allow the Plaintiff’s claim, not merely on the basis of the positive evidence, but also guided by the principle of “sympathetic consideration”.

Addressing the submission advanced for the Defendants, I find it to be untenable in light of the Plaintiff’s positive evidence and the settled principle that reasonable medical and rehabilitative expenses, once established, are recoverable as special damages.

I, therefore, award the sum of RM13,875.00 under this head of claim.

Hospital bills and treatments

Learned counsel for the Plaintiff submitted an amount of RM812.41 for the Plaintiff’s hospital bills and treatments.

Whereas, learned counsel for the Defendants submitted that the claim should be dismissed as unproven.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff expressly pleaded his claim under this heading in paragraph 8(e) under “BUTIR-BUTIR GANTIRUGI KHAS PLAINTIF” of the statement of claim, forming part of the special damages.

The Plaintiff led evidence in court establishing his claim under this heading.

I find that the Plaintiff received initial treatment at BTMC, with the hospital bills and treatment receipts submitted at pages 7 to 9 of Bundle G. The total cost of this treatment is RM681.41. The Plaintiff subsequently received further treatment at HTAR Klang. The receipt at page 49 of Bundle B shows a cost of RM31.00. This is supported by the official Government of Malaysia receipt, which has been identified by the Plaintiff. I accept that it is an official document and that the name of the payer appearing thereon is indeed the Plaintiff.

The Plaintiff also received treatment at Klinik Pakar Ortopedik Ko. The treatment receipt at page 50 of Bundle B shows a cost of RM100.00. I accept that the Plaintiff has identified this document as his own treatment receipt and that he personally paid for this treatment.

On the totality of the evidence, I find that the Plaintiff has discharged the evidential burden on a balance of probabilities, and that these medical expenses were reasonably incurred as a result of the accident.

Addressing the submission advanced for the Defendants, I find it to be without merit, having regard to the Plaintiff’s credible account of his medical treatment and the settled principle that reasonable hospital and treatment expenses incurred as a result of an accident are recoverable as special damages.

I, therefore, award the sum of RM812.41 under this head of claim.

(vi) Medical Report, Specialist Report, Police Report, JPJ Reports, Adjuster Report, Chemist Report et cetera

Learned counsel for the Plaintiff submitted that the amount be assessed under the costs.

Similarly, learned counsel for the Defendants submitted that the amount be assessed under the costs.

I order the claim under this heading to be assessed under the costs.

(vii) Future surgeries

Total Knee Replacement Surgery

Learned counsel for the Plaintiff submitted an amount RM50,000.00 under this head of claim.

Whereas, learned counsel for the Defendants submitted that the claim should be dismissed. Alternatively, she submitted an amount of RM8,000.00, following the amount proposed by the Defendants’ Specialist.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist expressly confirmed the Plaintiff’s need for the Total Knee Replacement Surgery at a total cost of RM50,000.00. The Plaintiff’s Specialist Report states: “If the above conservative treatment does not relieve his pain and improve mobility, then surgery should be offered to the patient. In view of his age, if he is fit for surgery, then Total Knee Replacement (TKR) can be done. Total Knee Replacement (TKR) is done for pain that cannot be controlled with analgesia and loss of function of the right knee. The cost of such an operation could amount to RM50,000.00 if the operation is done at Pantai Hospital, Cheras.....”

(ii) The Defendants’ Specialist Report states: “If he does progress to develop severe post traumatic osteoarthritis later in life and above-mentioned conservative treatment have failed to control his symptoms, he will require surgery. A Total Knee Replacement can be done in any government hospital and may cost RM 8000.”

(iii) The Plaintiff led unshaken evidence regarding his intention to undergo the respective surgery based on the recommendation given by his Specialist. (See: Answers to Questions 42 and 43 of the Plaintiff’s Witness Statement)

(iv) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount of RM50,000.00 for the costs of the Total Knee Replacement surgery. To my mind, the amounts so posited are not without evidential support. Indeed, they derive from the figures stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Consultant Orthopaedic and Trauma Surgeon at Pantai Hospital Cheras. Stated differently, the sum was not conjured in vacuo but rests upon an authoritative foundation.

The Defendants’ Specialist recommended that the Plaintiff undergo the Total Knee Replacement surgery at a government hospital at the cost of RM8,000.00. Be that as it may, the Defendants’ Specialist had not served at the government hospital to substantiate the figure advanced, and did not provide any reference to the cost of treatment at her own institution, Columbia Asia Hospital. The estimate is therefore speculative and lacks any convincing foundation.

(vi) Even if the Defendants’ Specialist’s speculative figure is taken at its highest, it does not, in my considered view, dislodge the reasonableness of the figure advanced by the Plaintiff’s Specialist. From my standpoint, the mere fact that the quantum estimated by the Plaintiff’s Specialist surpasses that estimated by the Defendants’ is, in the circumstances, insufficient to render it unreasonable.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for the Total Knee Replacement surgery as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for the surgery and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount of RM50,000.00 for the Total Knee Replacement surgery.

Total Shoulder Replacement Surgery

Learned counsel for the Plaintiff submitted an amount of RM70,000.00 under this head of claim.

Whereas, learned counsel for the Defendants submitted that the claim should be dismissed. Alternatively, she submitted an amount of RM10,000.00, following the amount proposed by the Defendants’ Specialist.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist expressly confirmed the Plaintiff’s need for the Total Shoulder Replacement Surgery at a total cost of RM70,000.00. The Plaintiff’s Specialist Report states: “If the above conservative treatment does not relieve his pain and improve mobility, then surgery should be offered to the patient. In view of his age, if he is fit for surgery, then Total Shoulder Replacement (TSR) can be done. Total Shoulder Replacement (TSR) is done for pain that cannot be controlled with analgesia and loss of function of the right shoulder. The cost of such an operation could amount to RM70,000.00 if the operation is done at Pantai Hospital Cheras.....”

(ii) The Defendants’ Specialist Report states: “He may benefit from a Total Shoulder Replacement surgery which can be done in any government hospital and may cost RM10000.”

(iii) The Plaintiff led unshaken evidence regarding his intention to undergo the respective surgery based on the recommendation given by his Specialist. (See: Answers to Questions 42 and 43 of the Plaintiff’s Witness Statement)

(iv) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount of RM70,000.00 for the costs of the Total Shoulder Replacement surgery. To my mind, the amounts so posited are not without evidential support. Indeed, they derive from the figures stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Consultant Orthopaedic and Trauma Surgeon at Pantai Hospital Cheras. Stated differently, the sum was not conjured in vacuo but rests upon an authoritative foundation.

The Defendants’ Specialist recommended that the Plaintiff undergo the Total Shoulder Replacement surgery at a government hospital at the cost of RM10,000.00. Be that as it may, the Defendants’ Specialist had not served at the government hospital to substantiate the figure advanced, and did not provide any reference to the cost of treatment at her own institution, Columbia Asia Hospital. The estimate is therefore speculative and lacks any convincing foundation.

(vi) Even if the Defendants’ Specialist’s speculative figure is taken at its highest, it does not, in my considered view, dislodge the reasonableness of the figure advanced by the Plaintiff’s Specialist. From my standpoint, the mere fact that the quantum estimated by the Plaintiff’s Specialist surpasses that estimated by the Defendants’ is, in the circumstances, insufficient to render it unreasonable.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for the Total Shoulder Replacement surgery as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for the surgery and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount RM70,000.00 for the Total Shoulder Replacement surgery.

Physiotherapy

Learned counsel for the Plaintiff submitted an amount of RM5,560.00 under this head of claim.

Whereas, learned counsel for the Defendants submitted that any award should follow the amount proposed by the Defendants’ Specialist.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist expressly confirmed the Plaintiff’s need for physiotherapy treatment at a total cost of RM5,560.00.

(ii) The Plaintiff led unshaken evidence regarding his intention to undergo physiotherapy treatment based on the recommendation given by his Specialist. (See: Answers to Questions 42 and 43 of the Plaintiff’s Witness Statement)

(iii) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount RM5,560.00 for the costs of the physiotherapy treatment. To my mind, the amounts so posited are not without evidential support. Indeed, they derive from the figures stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Consultant Orthopaedic and Trauma Surgeon at Pantai Hospital Cheras. Stated differently, the sum was not conjured in vacuo but rests upon an authoritative foundation.

(iv) The Defendants’ Specialist recommended that the Plaintiff undergo physiotherapy treatment at a government hospital at the cost of RM5.00 per session. Be that as it may, the Defendants’ Specialist had not served at the government hospital to substantiate the figure advanced, and did not provide any reference to the cost of treatment at her own institution, Columbia Asia Hospital. The estimate is therefore speculative and lacks any convincing foundation.

Even if the Defendants’ Specialist’s speculative figure is taken at its highest, it does not, in my considered view, dislodge the reasonableness of the figure advanced by the Plaintiff’s Specialist. From my standpoint, the mere fact that the quantum estimated by the Plaintiff’s Specialist surpasses that estimated by the Defendants’ is, in the circumstances, insufficient to render it unreasonable.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for physiotherapy treatment as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for physiotherapy treatment and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount of RM5,560.00 for the physiotherapy.

Analgesia

Learned counsel for the Plaintiff submitted an amount of RM3,360.00 under this head of claim.

Whereas, learned counsel for the Defendants submitted that the claim under this heading should be dismissed, as the Defendants’ Specialist stated that the Plaintiff only complained occasionally of pain in the left shoulder when performing heavy work. Arguing further, learned counsel contended that since the Plaintiff had not been taking the prescribed analgesics for the past four months, there was no necessity for the said claim.

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff’s Specialist Report established the Plaintiff’s need for analgesia.

(ii) The Plaintiff led unshaken evidence regarding his intention to take the treatment, based on the recommendation given by his Specialist. (See: Answer to Question 43 of the Plaintiff’s Witness Statement)

(iii) Applying the principle established in Jitweer Singh, I test the conflicting Specialists’ Reports concerning the Plaintiff’s need for analgesia against the totality of reliable evidence and the overall circumstances. Having done so, I find the Plaintiff’s Specialist’s Report to be more consistent with the evidential matrix and therefore the more trustworthy and reliable.

(iv) The Defendants’ Specialist noted that the Plaintiff was not using any analgesia, despite reporting discomfort in the left shoulder, and concluded that there was no clinical indication for analgesics. During testimony in Court, however, the Plaintiff explained that he was experiencing genuine pain in the left shoulder, which cannot be characterised as mere discomfort as suggested by the Defendants’ Specialist. That, in my view, establishes a reasonable ground entitling the Plaintiff to appropriate treatment.

While the Defendants’ Specialist noted that the Plaintiff reported only occasional pain in the left shoulder during heavy work, I do not consider such intermittent discomfort sufficient to negate the need for analgesia. Pain, even if episodic, may still cause functional limitation and justify medical management. In my judgment, the Plaintiff’s complaints, coupled with the specialist assessment, support the continued need for appropriate analgesic treatment.

(vi) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount of RM3,360.00 for analgesia. To my mind, the amount so posited is not without evidential support. Indeed, it derives from the figure stated by the Plaintiff’s Specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Consultant Orthopaedic and Trauma Surgeon at Pantai Hospital Cheras. Simply put, the sum is neither hypothetical nor unfounded but is firmly anchored in credible basis.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for analgesia as given by the Plaintiff’s Specialist. I respectfully find that the Plaintiff has justified the need for analgesia and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount RM3,360.00 for the analgesia.

(viii) Costs of Orthotic Devices

Shoulder Brace

In response to a query from the Bench, learned counsel for the Plaintiff conceded that the options of shoulder replacement surgery and the use of a shoulder brace overlap, and that opting for either would be sufficient. He further conceded that surgery constitutes the final solution, while the shoulder brace is merely an alternative.

As I have already allowed the Plaintiff’s claim for shoulder replacement surgery under the heading of future surgeries, I therefore make no separate award under this heading.

Knee Brace

In response to a query from the Bench, learned counsel for the Plaintiff conceded that the options of knee replacement surgery and the use of a knee brace overlap, and that opting for either would be sufficient. He further conceded that knee replacement surgery constitutes the final solution, while the knee brace is merely an alternative.

As I have already allowed the Plaintiff’s claim for knee replacement surgery under the heading of future surgeries, I therefore make no separate award under this heading.

Special Shoes

Learned counsel for the Plaintiff submitted an amount of RM19,849.79 under this head of claim.

Whereas, learned counsel for the Defendants made no submission under this heading. Be that as it may, the Defendants’ Prosthetic and Orthotics Assessment Report proposed an amount of

Having considered the submissions as a whole, I agree with the submission advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff led evidence establishing his need for the special shoes due to a 1 cm shortening of the right leg resulting from the accident, which caused him to walk with a limp and rendered him unable to perform activities such as walking and standing properly. (See: Answers to Questions 34 and 35 of the Plaintiff’s Witness Statement)

(ii) In the Plaintiff’s Orthotic Assessment Report, the orthotist recognised the Plaintiff’s need for the use of custom-made footwear to address the shortening of the Plaintiff’s right leg. The clinical findings recorded that the Plaintiff walked with a limp and relied on a walking stick. On that basis, I am satisfied that the use of custom-made orthotic shoes is warranted.

(iii) I had the opportunity to observe the Plaintiff’s physical condition during trial. From my own observation, it was apparent that the Plaintiff ambulated with an uneven gait, thereby confirming to my satisfaction that a limb length discrepancy exists, as assessed by the Plaintiff’s Orthotist.

(iv) So far as material, the Plaintiff’s Orthotic Assessment Report reads: “iii. One pair of custom-made shoes with right total contact insole as Heel raise (Outdoor) [close toe box] • As for shortening the right lower limb, required custom-made shoes with custom-made total contact insole (shoe raise) to accommodate the LLD. • Leg length discrepancy causes compensatory gait abnormalities and degenerative arthritis of the lower extremity and lumbar spine. • The shoe is made from soft leather material and the inner side of the shoe will be added soft padding to protect the foot and give comfort during walking. This shoe as protection, aesthetics facilitation of certain tasks and activities. • This type of shoe is custom-made to compensate for the usage of a thick insole with 1.0 cm as heel raise. This insole is made from Pelite/EVA and soft foam. The right side will be made thick about 1.0 cm to avoid back pain and other complications in the future. • Besides that, this shoe has a square toe with a high toe room and is wide, which can provide comfort to patients who have hallux valgus. • The process of making the custom-made shoe and insole will require casting and fabricating a positive cast so that it provides a comfort fit to the residual limb. • The outsole of the shoe/sandal will be designated to be mild anterior rocker sole to reduce motion in the toe joints and help the patient ambulate. This design will help in a rollover during the stance phase and reduce pressure at the metatarsal head during walking. Hence it will improve the walking style of the patient. …”

The Plaintiff’s Orthotic Assessment Report is detailed and comprehensive, setting out the medical rationale, functional objectives, and specific design features of the proposed shoes. It explains how the leg length discrepancy causes gait abnormalities and future complications, and how the heel raise, insole, toe box, padding, and rocker sole address these issues. The report also includes photographs of the sample thick insole and the custom-made shoes, showing both exterior and interior features, with comparisons to standard footwear. The recommendations are patient-specific and clinically grounded, and I accept them as a reliable basis for the Plaintiff’s needs.

(vi) In contrast, the Defendants’ Prosthetic and Orthotics Assessment Report contains notable lapses and is comparatively less detailed regarding custom-made footwear. Unlike the Plaintiff’s Orthotic Report, it fails to provide sufficient particulars for the Court to determine whether the proposed footwear would be suitable or effective for the Plaintiff.

(vii) For clarity, the amount awarded for special shoes costs already reflects the adjustment for inflation, notwithstanding that the order states the costs are not inclusive of the same.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for the special shoes as given by the Plaintiff’s Orthotist. I respectfully find that the Plaintiff has justified the need for the special shoes and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount RM19,849.79 for the special shoes.

Special Sandal

Learned counsel for the Plaintiff submitted an amount of RM7,167.23 under this head of claim.

Whereas, learned counsel for the Defendants made no submission under this heading. Be that as it may, the Defendants’ Prosthetic and Orthotics Assessment Report proposed an amount of

Having considered the submission as a whole, I agree with the submissions advanced for the Plaintiff. My assessment proceeds as follows:

The Plaintiff led evidence establishing his need for the special sandal due to a 1 cm shortening of the right leg resulting from the accident, which caused him to walk with a limp and rendered him unable to perform activities such as walking and standing properly. (See: Answers to Questions 34 and 35 of the Plaintiff’s Witness Statement)

(ii) In the Plaintiff’s Orthotic Assessment Report, the orthotist recognised the Plaintiff’s need for the use of special sandal for indoor activities to address the shortening of the Plaintiff’s right leg. The clinical findings recorded that the Plaintiff walked with a limp and relied on a walking stick. On that basis, I am satisfied that the use of custom-made orthotic sandal is warranted.

(iii) I had the opportunity to observe the Plaintiff’s physical condition during trial. From my own observation, it was apparent that the Plaintiff ambulated with an uneven gait, thereby confirming to my satisfaction that a limb length discrepancy exists, as assessed by the Plaintiff’s Orthotist.

(iv) So far as material, the Plaintiff’s Orthotic Assessment Report reads: “iv. Ready-made Sandal with right heel raise 1.0 cm (for indoor use) • As for indoor activity, I recommend patients with sandal shoes designed for easy accessibility and breathability as it is only used inside the house. • The sandals will be added with a 1.0 cm shoe raise to accommodate the shortening of the right lower limb. • Shoe raises function to balance outpatient during walking and standing. The difference in leg length is measured and the shorter leg is compensated by adding layers of rubber sole to the outsole of the shoe. …”

The Plaintiff’s Orthotic Assessment Report is detailed and comprehensive, setting out the medical rationale, functional objectives, and specific design features of the recommended sandals for indoor use. It explains how the leg length discrepancy affects gait and balance, and how the 1.0 cm heel raise, insole layering, and overall design of the sandals are intended to address these issues. The report also includes photographs of the sample rubber sole added to the outsole of the sandals, illustrating the modifications. The recommendations are patient-specific and clinically grounded, and I accept them as a reliable basis for the Plaintiff’s needs.

(vi) In contrast, the Defendants’ Prosthetic and Orthotics Assessment Report contains notable lapses and is comparatively less detailed regarding the special sandal. Unlike the Plaintiff’s Orthotic Report, it fails to provide sufficient particulars for the Court to determine whether the proposed footwear would be suitable or effective for the Plaintiff.

(vii) For clarity, the amount awarded for special sandal costs already reflects the adjustment for inflation, notwithstanding that the order states the costs are not inclusive of the same.

Weaving the preceding mosaic of reasons together while keeping in view the prevailing facts peculiar to the case, I should prefer myself to accept the opinion and the costs for the special sandal as given by the Plaintiff’s Orthotist. I respectfully find that the Plaintiff has justified the need for the special sandal and the reasonableness of the costs for the same on the balance of probabilities. I, therefore, award the amount of RM7,167.23 for the special sandal.

Costs of Care

Learned counsel for the Plaintiff submitted that the Plaintiff has withdrawn the claim under this head of claim.

In view of the Plaintiff’s express withdrawal, this head of claim stands formally withdrawn from further consideration.

In summation, the findings I draw crystallise into the following:

I allow the Plaintiff’s claim with costs.

(ii) I award the above damages, on a 100% liability basis, together with interest and costs.

(iii) For the interest, I order as follows:

interest at the rate of 5% per annum for the general damages from the date of the service of the writ of summons until the date of the decision;

interest at 2.5% per annum for the special damages from the date of the accident to the date of the decision (no interest for future treatments); and

interest at the rate of 5% per annum for all damages from the date of the decision until the date of the full and final settlement.

(iv) And for the costs, I order the costs according to the scale as set out in the Rules of Court 2012. Signed (NOORHISHAM MOHD JAAFAR) Judge Sessions Court Dated: 28 January 2026 PARTIES Counsel for the Plaintiff : HARJEET SINGH A/L SARDARA SINGH JEGANARTH SAMIKANU Solicitors for the Plaintiff Tetuan P S Sohanpal & Sidhu Advocates & Solicitors No 15A, Tingkat 1 Jalan Seri Sarawak 20B Taman Sri Andalas 41200 Klang Selangor Counsel for the Defendants : JACULINE A/P STEPHEN Solicitors for the Defendants : Tetuan Kanaga Suresh & Co Advocates & Solicitors No. 57, Jalan Nautika C U20/C Pusat Komersial TSB (Tropicana Sungai Buloh) 40160 Shah Alam Selangor