Teh Kean Hooi v 1. ) Siang Heng Plastic Ware Sdn Bhd (PA-12B-21-09/2021)

SIANG HENG PLASTIC WARE SDN BHD [NO. SYARIKAT: 466919-X]

TEOH BOON THONG …RESPONDEN-RESPONDEN [NO. K/P: 720103-07-5087] DALAM MAHKAMAH SESYEN DI GEORGETOWN DALAM NEGERI PULAU PINANG GUAMAN SIVIL NO.: PA-A53KJ-199-08/2019 TEH KEAN HOOI …PLAINTIF [NO. K/P: 700606-07-5363]

SIANG HENG PLASTIC WARE SDN BHD [NO. SYARIKAT:4669191]

TEOH BOON THONG …DEFENDAN-DEFENDAN Page 2 of 33 [NO. K/P: 720103-07-5087] GROUNDS OF JUDGMENT (Post-trial appeal from Sessions Court)

The Plaintiff (P) is the motorcycle rider. The Second Defendant (D2) is the car driver. The First Defendant is the company that owns the car.

D2’s car collided with P’s motorcycle on one of the main highways on Penang Island. D2 alleged that it was P’s fault. P asserted that it was D2’s fault.

P sued D2 and the First Defendant. After the trial, on the issue of liability, the Sessions Court found P and D2 equally liable for causing the accident. On quantum, the Sessions Court awarded damages for a string of heads of damage.

P appealed against the whole of the Sessions Court’s judgment. The Defendants cross-appealed against the Sessions Court’s judgment on liability, and against the quantum awarded on several heads of damage. THE LAW ON APPELLATE INTERVENTION—THE ‘PLAINLY WRONG’

It is vital, in this post-trial Appeal, to review the law on appellate intervention. An appellate court should only interfere to disturb the Page 3 of 33 findings of the first-instance court (here: the Sessions Court), if the Sessions Court was “plainly wrong”.

Our Federal Court, in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC); [2020] 8 AMR 227; [2020] 10 CLJ 1; [2020] 6 MLRA 193, comprehensively expounded the genesis of the “plainly wrong” principle, through its development over the years, into its current meaning.

Ng Hoo Kui (supra) propounded that the primary “plainly wrong” principle includes the following not-exhaustive elaborative tenets, and I apply them here—

The Sessions Court’s judgment is “plainly wrong” if it was arrived at through “no or insufficient judicial appreciation of the evidence”: citing UEM Group Bhd (previously known as United Engineers (M) Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2011] 1 AMCR 338 (FC); [2010] 9 CLJ 785; [2010] 2 MLRA 668; [2010] MLJU 2179.

This phrase of the “lack of judicial appreciation of the evidence” encompasses these three errors—

critical factual finding which has no basis in evidence (that is, findings not based on the evidence);

(ii) demonstrable misunderstanding of the relevant evidence (that is, misunderstanding the evidence); Page 4 of 33

(iii) demonstrable failure to consider the relevant evidence (that is, failure to consider the evidence).

The Sessions Court’s judgment is “plainly wrong” if it was arrived at through a “material error of law”: following Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 (UKSC).

The Sessions Court’s decision is “plainly wrong” if it “could not reasonably be explained or justified”, making it a decision “which no reasonable judge could have reached”: citing Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd & Anor Appeal [2018] 2 MLJ 177 (FC); [2018] 1 AMR 517; [2018] 2 CLJ 641; [2018] 1 MLRA 263.

An appellate court is to evaluate whether the Sessions Court’s decision was “reasonably made”: paragraph 77 of Ng Hoo Kui (supra).

The “plainly wrong” principle, however, is not intended to be used as a catch-all method to replace the Sessions Court’s decision with my own (the appellate court’s) decision, on the facts of the case. The Federal Court in Ng Hoo Kui (supra) puts it this way— [76] What is pertinent is that, the ‘plainly wrong’ test is not intended to be used by an appellate court as a mean to substitute its own decision for that of the trial court on the facts. Page 5 of 33 [78] Hence following this court’s ruling in Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra an appellate court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was ‘plainly wrong’ where in arriving at the decision it could not reasonably be explained or justified and so was one which no reasonable judge could have reached. If the decision did not fall within any of the aforesaid category, it is irrelevant, even if the appellate court thinks that with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge.[emphasis added]

Put differently, even if an appellate court finds, on the evidence and the facts of a case, that the appellate court would have come to a different decision, the appellate court, when it is deciding on the appeal, should not bypass an analysis of the first-instance court’s reasoning.

I must consider the Sessions Court’s appreciation of the evidence and the Sessions Court’s application of the principles of law, in the context of these elaborative tenets, to see if the Sessions Court has committed a fundamental error. Summary of the principles 11. An Appellate Court will intervene in the Decision of a lower court if the lower court is found to be “plainly wrong”.

These four identifiable, non-exhaustive errors by the trial judge are included in what amounts to the trial judge being “plainly wrong”—

a material error of law;

a critical finding of fact which has no basis in the evidence; Page 6 of 33

a demonstrable misunderstanding of relevant evidence; and

a demonstrable failure to consider the relevant evidence.

Errors (2), (3) and (4) above can also be called “a lack of judicial appreciation of the evidence”—the expression used in Gan Yoke Chin & Anor v Lee Ing Chin & Ors [2005] 2 MLJ 1 (FC); [2004] 6 AMR 781; [2004] 4 CLJ 309; [2004] 2 MLRA 1.

The Federal Court in Tengku Dato’ Ibrahim Petra (supra) has also expressed the plainly wrong test in this manner—the decision of the trial judge could not be reasonably explained or justified, making it a decision that no reasonable judge could have reached.

In the Grounds Of Judgment (GOJ), the Sessions Court cited and applied two legal principles to the facts of this case.

First, when there are two conflicting versions of the facts asserted by the parties, the applicable test is not to decide based on which narrative should be believed, but rather which narrative is “inherently probable or improbable”—Tabarani Mohd Arsad & Anor v Chan Tenn Yeu [1999] 2 AMR 1884 (HC) at 1890; [1999] 3 CLJ 188; [1999] 1 MLRH 489; [1999] MLJU 126 at page 5.

Second, when the parties tell “conflicting and divergent stories”, the silent evidence, such as the sketch plan and photographs, will be the “guiding force” for the Court to rely on—Ng Aik Kian Page 7 of 33 & Anor v Sia Loh Sia [1997] 2 AMR 1996 (HC) at 2007; [1997] 2 CLJ SUPP 218; [1997] 1 MLRH 76.

I am of the view that these two principles are not only pertinent to the facts and issues arising from this case, but they are the correct principles to apply when the Court is faced with two diametrically conflicting contentions as to how the accident occurred.

The Sessions Court apportioned liability at 50% - 50%, i.e. that both P and the Defendants were equally liable for the accident. The issue is whether the Sessions Court, in making this finding, was plainly wrong. The Sketch Plan 20. In this appeal, the Sketch Plan is a pertinent part of the evidence before the Sessions Court. The Sketch Plan is reproduced below for reference—

A2 and A3 are the markers for the left lane, i.e. A2 - A3 constitutes the left lane of the Tun Dr Lim Chong Eu highway. A3 and A4 are the markers for the right lane, i.e. A3 - A4 constitutes the right lane.

A3 is a dotted line, marking the border of the lane between the left lane and the right lane.

“X” was marked as the point of collision. I note that “X” was located immediately to the left of the dotted line A3, i.e. immediately left of the right lane. Put differently, “X” is on the rightmost part of the left lane. X Page 9 of 33 P’s version 24. A point to note about P’s version, which was analysed by the Sessions Court, was the uncertainty (imprecision) about whether P was riding on the left lane or on the right lane.

P’s version was contained in his Police Report. P stated: “saya menunggang di laluan kiri (I was riding on the left pathway)”, and “land rover…dari arah belakang telah melanggar pada motosikal saya (the land rover…collided with my motorcycle from behind)”.

P submitted that what he actually meant by “laluan kiri” in his Police Report was “laluan kiri, lorong kanan”, i.e. the left pathway of the right lane. Then in cross-examination, P testified that “saya menunggang di sebelah lane kanan”, i.e. he was riding on the right lane. P was questioned twice about this fact. On both occasions, he maintained that he was riding on the right lane.

A few points of evidence to note here are that—

P also testified that “saya ingin belok ke kiri, saya ingin belok ke sebelah kiri” (I wanted to veer or turn left);

“X” adalah titik kemalangan dan bukan tempat yang saya menunggang”, i.e. P verified (distinguished) that “X” is the point of collision, and not the point where he was riding.

The Investigating Officer’s (IO’s) testimony appeared to support P’s version that he was riding along the left pathway of the right lane. The IO testified that when P made his Police Report, the IO Page 10 of 33 printed what must have been the draft Police Report for P to read over before it was lodged. The draft Police Report stated that he was riding on the left pathway (“laluan kiri”). The IO recalled that P wanted to amend it to state that he was riding on the right lane (instead of the left pathway). But the amendment was never made. The IO verified (conceded) that P’s request to amend his draft Police Report in that manner—that he was riding on the right lane and not the left pathway—was not recorded (“tidak dalam rekod”).

But when he was questioned further, the IO conceded that further to the fact that the amendment was not recorded, i.e. P’s draft Police Report was not corrected (to amend the statement that he was on the “laluan kiri (left pathway)”, his testimony that P wanted to correct the draft Police Report was purely from memory, which did not give much weight to this fact, as against the written documentary evidence, which was P’s formal Police Report, where he stated that he was on the “laluan kiri (left pathway)”, not “lorong kanan (right lane)”.

In summary—the pertinent aspect of P’s version was that even though his Police Report was unclear whether he was on the “laluan kiri (left pathway)” of the right lane, or on the left lane itself, he was nevertheless clear in his testimony (in cross-examination) that he was riding on the right lane. Also, he wanted to veer left, to make a left turn. The Sessions Court’s findings 31. The Sessions Court found (particularly at paragraph [23] of the GOJ) that P’s testimonial version at trial that he was riding on the Page 11 of 33 right lane contradicted his Police Report version that he was riding on the “laluan kiri (left pathway)”. (The Sessions Court appeared to have found that “laluan kiri” meant the left lane.)

The Sessions Court preferred P’s Police Report version (riding on the left lane) over P’s testimonial version (riding on the right lane). The Sessions Court also pointed out that even if P had asked the IO to correct his statement in the draft Police Report, that fact was not captured, i.e. not corrected in his formal Police Report.

The Sessions Court also referred to P’s pleading: his Statement Of Claim (SOC). P’s SOC (at paragraph 3) stated that he was riding on the left lane, which corresponded with P’s Police Report.

In addition, the Sessions Court found (at paragraph [24] of the GOJ) that when P was questioned, he disclosed that someone told him to testify that he was riding on the left of the right lane. The Sessions Court wrote: “Malahan Plaintiff sendiri mengakui bahwa [sic] fakta beliau telah menunggang dikiri [sic] laluan kanan sebenarnya telah diberitahu oleh orang lain”.

The Sessions Court found that it was not pleaded, and not in P’s Police Report, that he was riding on the right lane, or that he was riding on the left pathway of the right lane, as alleged. In other words, the Sessions Court found that P was riding on the left lane.

The Sessions Court also noted that P pleaded in his SOC and stated in his Police Report that D2 hit him from the rear (Land Rover…dari arah belakang telah melanggar pada motosikal saya). Page 12 of 33 D2’s version 37. This is what P submits. P asserts that the Defendants, contradictorily, had three versions about how the accident happened—

D2 was driving on the right lane, between A3 - A4.

P was on D2’s left, i.e. P was coming towards D2 from D2’s left. P went from A1 towards A4, i.e. from even before the leftmost border of the left lane, riding towards the right, across the left lane and the right lane. D2 then went from A4 back to A3, i.e. on the right lane, from the right side towards the left side. P was then in front of D2 and on D2’s right. But then P went back towards A3, i.e. P rode back towards the left. That was when the collision happene.;

When P went from A1 to A3, that was when the collision happened at “X”. This third version is different to the second version in that D2 alleges that P went from A1 just to A3, and not from A1 all the way to A4 before going back to A3 (like in the second version).

To verify that there was this third version, I checked the Notes Of Evidence. I do not see that D2 had presented this alleged third version. I see, however, that D2’s counsel, in Re-Examination, asked D2 leading questions to the effect that D2 was changing lanes from A3 - A4 to A2 - A3. But P’s counsel objected to D2’s counsel’s questions. As a result, there was no completion (answers) to the questions asked. There were no answers given to Page 13 of 33 the questions. This alleged third version did not crystallise. It was not part of the body of evidence coming out of D2’s testimony. The Sessions Court’s findings 39. The Sessions Court found (paragraph [25] of the GOJ) that in his Police Report, D2 stated that the accident occurred because P had changed directions (“menukar haluan”), and had gone into D2’s pathway in front of him (D2). The Sessions Court found that this version was stated in D2’s Police Report and in the Defendants’ pleadings (their Defence).

The Sessions Court also considered that D2 testified that he tried to avoid P to the left (“cuba mengelak ke kiri”), i.e. D2 swerved left to avoid P, which seems to be supported by the physical evidence.

Hence, the Sessions Court looked at the physical evidence, namely the damage to both vehicles. The Sessions Court found that the damage to P’s motorcycle was at the rear (“bahagian belakang”).

I checked the photos and also found that the damage to P’s motorcycle was to the left side of the rear number plate and the left back portion of the motorcycle seat.

The Sessions Court found that the damage to D2’s car was on the front right (“hadapan sebelah kanan”); the right sideview mirror was broken (“cermin sisi sebelah kanan patah”); the right front mudguard of the right front wheel (“mudguard hadapan sebelah Page 14 of 33 kanan”); and on the right front door, i.e. the driver’s door (“pintu sebelah kanan”).

I checked the photos and found that what the Sessions Court found was correct. I found that the right sideview mirror (which was by the right front door) was detached from the door, i.e. it was torn off its socket on the right front door. I also found that the scratches on D2’s car were on the right front mudguard and on the right front door.

The Sessions Court found that the damage to D2’s car (which shows the part of D2’s car that had collided with P’s motorcycle) was on the right side of the car, not so much at the direct front of the car. The Sessions Court must have ruled out a straight-on or direct front-to-rear collision.

The evidence of damage did not disclose a direct front-to-rear collision—as pleaded by P—but rather a collision between the right front side of D2’s car with the left rear of P’s motorcycle.

The Sessions Court found that D2 admitted to having to avoid P to the left (“mengaku…mengelak ke kiri”), thus exposing the right side of D2’s car, which collided with the left rear portion of P’s motorcycle.

Thus, the Sessions Court found that D2’s version that P had changed lanes, going from the right towards the left—thus causing the collision—to be the more probable version (paragraphs [28] and [30] of the GOJ). This was also consistent with D2 Page 15 of 33 swerving left, such that the front portion of the right side of the car collided with P’s motorcycle. My findings 49. Analysing the Sessions Court’s GOJ and analysing the evidence produced, I do not find that the Sessions Court was plainly wrong. Instead, I find that the Sessions Court correctly adjudged that the collision between D2 and P happened because P was moving from the right to the left. He testified that he wanted to turn left. The physical evidence indeed discloses that the collision occurred between the right side of D2’s car, at the right front door, where the sideview mirror is, and the left rear portion of P’s motorcycle.

Also, when P was moving from right to left, P was in front of D2. Yet D2 could not avoid colliding with P (who was in front of him)— which made D2 negligent as well.

I therefore find that the Sessions Court’s apportionment of liability at 50%-50% not fundamentally erroneous. I find that the Sessions Court’s judgment on the issue of liability was reasonably arrived at, and arrived at by a proper evaluation of the evidence.

I must note here that the latest edition of the Compendium (Revised Compendium Of Personal Injury Awards) was published in July 2018. That was 7 years ago. As such, I should be guided by more recent case law authority on the quantum of damages for specific injuries.

It is agreed between the parties that there are seven heads (categories) of injury to P. One: Head injury 54. P submits that the Compendium sets out that the range of damages for head injury is from RM300k to RM420k.

P submits the amounts of damages granted in the following case law authorities—

RM400k: Zamri Bin Md Abd Ghani & Anor v Ho Ch’ng Chuan [2018] MLJU 1167 (HC); [2018] AMEJ 1016; [2018] CLJU 1262; [2018] MLRHU 994;

RM300k: Mohd Asri Jusoh & Anor v Hadi Bin Rosnan & Anor [2019] MLJU 720 (HC); [2019] AMEJ 0792; [2019] CLJU 1017. In that case, the plaintiff there suffered cognitive decline. The plaintiff’s memory deteriorated (the same as our P here). In that case, however, the plaintiff there was wheelchair bound. In our case, P was not wheelchair bound.

Nevertheless, in this appeal, P still prays for RM300k, because the RM160k that the Sessions Court awarded was still too low based on case law. Also, P submits that the Sessions Court made an error when it found (at paragraph [39] of the GOJ) that P did not suffer any intellectual deficit and motor impairment, when both specialists reported that he did.

Additionally, P submits that the Sessions Court erroneously found that P had no memory loss and no behavioural changes, when again both specialists evaluated that there were.

The Defendants submit that the amount of damages for P’s head injury should be a mere RM60k. Further, the Defendants submit that this RM60k should be for P’s combined head injury and eye injury. In other words, the head injury amount should be even less than RM60k.

The Defendants submit that RM60k for head injury is high. Because P could make his Police Report on his own. P could testify in Court. P could file this suit on his own: he needed no legal representation. And he can continue doing his previous job as a chicken rice seller.

P submits that injuries should not overlap (should not be combined) when the injuries are to different parts of the body and affect different functions. Injuries to different parts of the body, and injuries which affect different functions, should not be combined but should instead be taken separately—Cheong Voon Han v Thevan Subramaniam & Anor [2019] 11 MLJ 220 (HC); [2019] 5 CLJ 196; [2018] AMEJ 1410; [2018] MLRHU 1400; at paragraph [21].

The Defendants reply that—

the Compendium-prescribed range—from RM300k to RM420k—is for plaintiffs who are in a bedridden state, but with awareness. This range is too high for P’s injuries here; Page 18 of 33

a more reasonable amount extracted from the Compendium, for head injury which leads to mild personality and behavioural changes, is RM24k to RM48,500;

the Defendants submit that RM35k was a reasonable amount.

The Sessions Court awarded RM160k for the head injury, which included P’s eye injury (at paragraphs [39], [40], [46] and [70] of the GOJ). The Sessions Court did not award a separate amount for P’s eye injury. My finding 63. I find that the Sessions Court’s award of RM160k is unreasonably low. The Compendium guides us that the range for head Injury, for plaintiffs who are bedridden but have awareness, is RM300k to RM420k.

The case law authority of Mohd Asri Jusoh (supra) further guides me. The High Court there awarded RM300k for a head injury. The plaintiff there was wheelchair bound. P here is not. P’s injuries were similar to those of the plaintiff there, but less severe.

The Defendants have not produced any recent High Court case law authority that awarded a low amount like RM160k for the head injury.

I will therefore award a sum that is above RM60K, and nearer to, but not as much as, RM300K. I am of the view that RM180k is a more reasonable amount of damages for P’s head injury. Page 19 of 33 Two: Loss of sense of smell 67. P accepts the Sessions Court’s award of RM35k.

The Defendants did not cross-appeal on this head of damage.

The damages for the loss of sense of smell are sustained at RM35k. Three: Loss of hearing 70. P’s injuries to his ears were—a mild to moderate loss of hearing in his right ear and a severe loss of hearing in his left ear.

P accepts the Sessions Court’s award of RM40k.

The damages for the loss of hearing are maintained at RM40k. Four: Multiple abrasions 73. For multiple abrasions: P accepts the Sessions Court’s award of RM6k.

The damages for multiple abrasions are sustained at RM6k. Five: Facial fractures 75. For facial fractures: P prays for RM50k.

P submits that in a recent case law authority—Mohd. Azizi Bin Mat Lazim & Anor v Che Shaari Bin Che Deraman [2023] MLJU 3386 Page 20 of 33 (HC); [2023] AMEJ 3081; [2024] CLJU 2786—the High Court cited the Sessions Court case of Syakir Zayri bin Suhaimi (mendakwa melalui ibu yang sah dan sahabat wakil Sharmiza binti Samsudin) & Anor v Wakil diri harta pusaka Mohamad Safwan b Ghani (si mati) & Anor [2017] 2 PIR 22 (SC), which stood for a Le Fort face IV fracture, causing a sucken appearance and slightly depressed zygoma, and permanent reduced accuracy of the sense of smell. The Sessions Court in Syakir Zayri (supra)—awarded damages at RM80k. The High Court in Mohd. Azizi (supra) awarded RM100k, because there were several other injuries to the face which were more severe than in Syakir Zayri (supra).

P submits that he suffered injuries that included fractures of the left zygomatic arch. P submits that damages for injuries should not overlap (should not be combined), when the injuries are to different parts of the body and affect different functions. Injuries to different parts of the body, and injuries which affect different functions, should not be combined but should instead be taken separately— Cheong Voon Han (supra).

The Compendium’s prescribed range of damages for facial fractures is between RM14k to RM30k.

The Defendants submit that facial fractures overlapped with Head Injuries, i.e. Zero damages (no damages) should be awarded.

The Sessions Court awarded RM20K. My finding

I am of the view that in the light of the recent High Court case law authority of Mohd. Azizi (supra), the Sessions Court’s award of RM20K is unreasonably low. I find that RM60K—which is lower than the award for this injury in Mohd Azizi (RM100K) and Syakir (RM80K)—is a reasonable amount to award to P for his facial fractures. Six: Loss of three teeth and one chipped tooth 82. For the loss of three teeth and one chipped tooth, P prays for

The Compendium’s prescribed range of damages is between RM3k to RM3.5k per tooth.

Both specialists’ reports verify that P lost three teeth and had a chipped tooth.

But the Defendants submit zero damages, because P’s specialist noted (with reference to only one tooth), that it was “difficult to be sure” that the loss of the tooth was directly due to the accident.

The Sessions Court rejected P’s claim and awarded no damages. The Sessions Court’s reason was that this injury (the loss of three teeth and one chipped tooth) was not to be found in P’s specialist’s report. My finding 87. I find, however, that the Sessions Court had made a fundamental error in its finding. This injury was indeed captured in P’s Page 22 of 33 specialist’s report. Even the Defendants’ specialist’s report on P included this injury.

Even though P’s specialist remarked that it was difficult to be sure that P’s loss of teeth was directly due to the accident, P’s specialist nevertheless also remarked that “it is certainly possible to lose teeth in this sort of frontal injury since he has sustained a fracture of the left frontal sinus as well”.

P’s burden of proof was on the balance of probabilities. P’s specialist said that it was certainly possible that the loss of teeth was from the accident. I find that it was proven, on the balance of probabilities, that the accident caused P’s loss of teeth. Hence, I will award damages for this injury.

I award RM10,500.00 (RM3k per tooth x 3 teeth = RM9k + RM1,500.00 for the chipped tooth). Seven: Eye injury (total loss of vision in the left eye and blurred vision in the right eye)

For the total loss of vision in the left eye and blurred vision in the right eye, P prays for RM100k.

According to the Compendium, the respective range of damages for blindness in one eye is RM84k to RM90k; for the loss of 50% - 80% vision in one eye is RM30k - RM72k; and for the loss of 20% - 50% vision in one eye is RM24k – RM36k.

The Defendants submit that the damages for P’s eye injury should be a mere RM25k.

The Sessions Court again awarded zero damages. The Sessions Court explained that it had combined the head injury with the eye injury. My finding 95. I am of the view that the head injury should not be combined or taken to overlap with the eye injury. The head injury injured the brain. The eye injury injured both eyes. The brain and the eyes are different parts of the body. And these two organs perform different functions. The respective injuries should be separately assessed.

Citing the Compendium, I award RM90k for the total blindness in the left eye and RM40k for the blurred vision in the right eye, totalling the amount of RM130k. Special damages: actual loss and loss of future earnings P’s submissions 97. For the special damages of the actual loss of earnings, P prays for RM5k per month. P’s elder brother (PW2) testified at trial and verified that P made RM5k a month from his chicken rice business. PW2 is in the same business of selling chicken rice.

P was the owner of his own chicken rice shop. P did not work for 19 months. RM5k x 19 months is RM95k.

The Sessions Court found that P owned his own chicken rice business, and that he should be able to earn an income with this business. But even though the Sessions Court made this finding, the Sessions Court awarded P the amount of only RM14,400.00. This amount was computed by using the minimum wage amount of only RM1,200.00, and multiplying it by 12 months instead of 19 months.

I find that it is unreasonable to apply the minimum wage amount to P. I also find that since P had his own business, he did not have to give himself a wage.

As for the special damages of the loss of future earnings, the evidence discloses that after the accident, P now makes only RM1,500.00 per month. He used to make RM5k per month. The loss of income was RM3,500.00 per month. P prays for RM3,500.00 per month x 12 months x Multiplier (4) = RM168k.

P submits that if the accident had happened after 1.9.2019, then the amendment to section 28A of the Civil Law Act 1956, and section 4 of the Minimum Retirement Age Act 2012 would apply to set the age of retirement at 60 years old. But this accident happened in 2017, before the amendments. In 2017, the retirement age was 55 years old.

P also submits that the Multiplier is the age constant, in the measure of the number of years. The formula to get the Multiplier is 55 (age of retirement) minus 47 (P’s age at the time of the accident), divided by 2. The Multiplier here is 4.

The Multiplicand is the amount of salary lost per month. Here, it is

The Sessions Court awarded the amount of RM20k, without any justification and without considering the evidence of PW2 (P’s brother, who is also a chicken rice seller). There was no challenge to PW2’s credibility and his evidence. The Sessions Court did not explain the reason for awarding the amount of RM20K (at paragraph [59] of the GOJ).

P submits that case law authorities dictate that the prescribed formula must be used—Cheong Voon Han (supra). The Defendants’ submissions 107. Concerning the actual loss of earnings and the loss of future earnings—the Defendants submit that the Sessions Court was “very reasonable”. The Sessions Court respectively awarded RM14,400.00 (for actual loss of earnings) and RM20k (for loss of future earnings). There is no document to prove that P was making RM5k a month when he was running his chicken rice business.

P also testified that twice a year, he would deposit his business income into his bank account. P filed these bank statements. But nowhere in these bank statements did it show that P banked in thousands of Ringgit into his bank account.

Nevertheless, the Defendants conceded to the loss of income by accepting the minimum wage amount of RM1,200.00 x 12 months Page 26 of 33 = RM14,400. The Defendants used 12 months (instead of the 19 months P did not make an income), because normally, they would have to account for the number of days P was on medical leave. But there was no evidence of any medical leave or medical certificate here.

The Defendants chose to use one year as the period of loss of actual earnings. This was because P was well enough to start attending examination sessions by P's specialist to confirm his injuries, about one year after the accident. The accident happened on 1.10.2017. P started his examination sessions on 20.9.2018 (almost a year after the accident).

Further, concerning the loss of future earnings—the Defendants argue that there is no documentary evidence to show a reduction in P’s income. But again, the Defendants conceded to this head of damage and submitted that a RM20k lump sum should be awarded for the loss of future earnings.

This was how the Defendants computed the amount of loss of future earnings. To compute the Multiplier, the Defendants used the formula: 55 minus 47 divided by 2. Then, the Defendants deducted “1” (for the actual loss of earnings) from the Multiplier of “4”. The Multiplier became “3”. The calculation then became 3 x 12 months x RM1,200.00 (minimum wage) divided by 2 = RM21,600. The Defendants offered to pay RM20k. The Sessions Court granted RM20k.

But the Sessions Court gave no reasons for awarding this RM20k lump sum. No reason was given in the GOJ.

There are two ways to award loss of future earnings. One is to follow the calculation method (with the Multiplier and Multiplicand), which the Defendants concede that P has done. Two is to award a lump sum.

The main factor is P’s age. If P is young, the Courts have awarded hundreds of thousands of Ringgit. P here is 47 years old. The age of retirement at the time was 55 years old. Multiplier was only “4”. My findings 116. The Sessions Court gave no reason for awarding a RM20k lump sum, instead of using the formula method (with the Multiplier and Multiplicand). I find that this constituted a misdirection on the part of the Sessions Court. The Sessions Court appears to have rejected, without reason, the accepted and practiced method of calculating actual loss of earnings and loss of future earnings.

As such, I adopt P’s calculation of actual loss of earnings and the loss of future earnings.

I am of the view that in the interest of justice, the evidence of P’s earnings before and after the accident need not necessarily, in every case, take the form of documentary evidence. Oral testimony too, must be accepted and considered. In other words, the Sessions Court should not have rejected outright any evidence of Page 28 of 33 P’s earnings before and after the accident, just because the evidence was given orally.

There is in the body of evidence where P’s brother (PW2), who is also a chicken rice seller, testified that P’s profits per month ranged from RM7k to RM13k before the accident.

There is evidence that P’s brother took over P’s chicken rice business after the accident. The brother currently pays P RM1,500.00 per month because he can now only do light manual work, like washing the dishes.

P does not claim the profits of RM7k - RM13k a month, but rather claims the lower RM5k sum he prayed for in this SOC.

I am of the view that the Sessions Court should have, but did not, appreciate this evidence. The Sessions Court should have, but did not apply this evidence in computing and awarding the actual loss of earnings and the loss of future earnings.

I therefore vary the award for the actual loss of earnings and the loss of future earnings to—

actual loss of earnings: RM5k x 19 months = RM95k;

loss of future earnings: RM3,500 per month x 12 months x Multiplier (4) = RM168k. Another head of special damage—hearing aid 124. For damages relating to hearing aids—P prays for RM25k. Page 29 of 33

P cites the High Court case law authority of Nurushobah Jaafar & Anor v Muhammad Nafiz Amizah [2018] 1 LNS 1955 (HC), [2018] AMEJ 1511; [2018] MLRHU 1515, at paragraph [16], which propounded that the cost of hearing aids should be awarded to P. The High Court in Nurushobah (supra) awarded RM40k.

P’s specialist’s report recommends a hearing aid for P’s left ear. The hearing aid costs RM5k each. They have to be changed every five years. The batteries to operate the hearing aids need replacement every two weeks, i.e. RM6 per battery, making it RM12 per month x 12 months x 23 years. The specialist opined that the normal life expectancy for males is 72 years. So P is expected to live at least 23 years more. In a 23-year period, since the hearing aids need to be replaced every five years, P needs five sets of hearing aids: RM5k x 5 = RM25k. The cost of batteries is: RM12 per month x 12 months x 23 years = RM3,312.00.

The Sessions Court awarded no damages. No reasons were given. This rejection of hearing aid costs is not reasonable, as the specialist opined that P would need hearing aids, of the type and quality that cost RM5k each.

The Defendants, on the other hand, argue that the Sessions Court was correct to reject the claim for hearing aids, because there was no evidence of a quotation. The Defendants argue that even though the specialist’s report stated it, it was just an estimation.

The Defendants cite the Federal Court case law authority of Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324 (FC); [1983] 2 CLJ 198; [1983] 1 MLRA 154, for the principle that special damages must be pleaded and proven. Here, the cost of the hearing aid was not proven. As such, P should not be awarded any damages for hearing aids. My findings 130. The Sessions Court dismissed P’s claim for the cost of hearing aids because the RM5k price-per-unit was an estimation, and there was no documentary quotation for the hearing aid. But, P had pleaded the cost of a hearing aid. And, there is evidence of how much a hearing aid costs. The specialist recommended hearing aids that are priced at RM5k each.

I therefore accept P’s calculation for the cost of the five sets of hearing aids: RM5k x 5 units = RM25k. The cost of batteries is RM12 per month x 12 months x 23 years = RM3,312.00.

For these reasons, I sustain the Sessions Court’s judgment on liability.

As for quantum, I allow P’s appeal to the extent that I vary the following quantum of damages awarded on a 100% liability—

Head injury: RM180k

Facial fractures: RM60k Page 31 of 33

Loss of three teeth and a chipped tooth: RM10,500.00

Eyes (both): RM130k

Actual loss of earnings: RM95k

Loss of future earnings: RM168k Interest 134. I do not vary the Sessions Court’s award of interest.

I order interest at 5% per annum on the general damages amount from the date of the Writ (4.9.2019) until the date of full payment, with interest at 2.5% per annum on the special damages amount from the date of the accident (1.10.2017) until the date of judgment (24.6.2025), and with interest at 5% per annum on the judgment sum from the date of judgment (24.6.2025) until the date of full payment. Costs 136. I maintain the scaled costs of RM19,345.00 to be paid by the Defendants to P.

I order the Defendants to pay P costs of RM12k for this appeal proceeding. Costs are subject to the allocatur. Dated: 11 September 2025 Page 32 of 33 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA GEORGETOWN PULAU PINANG Peguam bagi pihak Perayu : Aznil Majid dan Julinder Sarjit Messrs. Aznil Naziah Juli & Praba (Penang) Peguam bagi pihak Responden- : Sunil Singh Khera dan Guhapria Responden Kumaravellu Messrs. Gan Ho & Razlan Hadri (Penang) Legislation referred to:

Section 28A of the Civil Law Act 1956.

Section 4 of the Minimum Retirement Age Act 2012. Cases referred to:

Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC); [2020] 8 AMR 227; [2020] 10 CLJ 1; [2020] 6 MLRA 193.

UEM Group Bhd (previously known as United Engineers (M) Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2011] 1 AMCR 338 (FC); [2010] 9 CLJ 785; [2010] 2 MLRA 668; [2010] MLJU 2179.

Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 (UKSC)

Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd & Anor Appeal [2018] 2 MLJ 177 (FC); [2018] 1 AMR 517; [2018] 2 CLJ 641; [2018] 1 MLRA 263.

Gan Yoke Chin & Anor v Lee Ing Chin & Ors [2005] 2 MLJ 1 (FC); [2004] 6 AMR 781; [2004] 4 CLJ 309; [2004] 2 MLRA 1.

Tabarani Mohd Arsad & Anor v Chan Tenn Yeu [1999] 2 AMR 1884 (HC); [1999] 3 CLJ 188; [1999] 1 MLRH 489; [1999] MLJU 126.

Ng Aik Kian & Anor v Sia Loh Sia [1997] 2 AMR 1996 (HC); [1997] 2 CLJ SUPP 218; [1997] 1 MLRH 76.

Zamri Bin Md Abd Ghani & Anor v Ho Ch’ng Chuan [2018] MLJU 1167 (HC); [2018] AMEJ 1016; [2018] CLJU 1262; [2018] MLRHU

994.

Mohd Asri Jusoh & Anor v Hadi Bin Rosnan & Anor [2019] MLJU 720 (HC); [2019] AMEJ 0792; [2019] CLJU 1017.

Cheong Voon Han v Thevan Subramaniam & Anor [2019] 11 MLJ 220 (HC); [2019] 5 CLJ 196; [2018] AMEJ 1410; [2018] MLRHU 1400.

Mohd. Azizi Bin Mat Lazim & Anor v Che Shaari Bin Che Deraman [2023] MLJU 3386 (HC); [2023] AMEJ 3081; [2024] CLJU 2786.

Syakir Zayri bin Suhaimi (mendakwa melalui ibu yang sah dan sahabat wakil Sharmiza binti Samsudin) & Anor v Wakil diri harta pusaka Mohamad Safwan b Ghani (si mati) & Anor [2017] 2 PIR 22 (Session Court).

Nurushobah Jaafar & anor v Muhammad Nafiz Amizah [2018] 1 LNS 1955 (HC), [2018] AMEJ 1511; [2018] MLRHU 1515.

Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324 (FC); [1983] 2 CLJ 198; [1983] 1 MLRA 154.