Thirukumaran a/l Shanmugham v Nyana Prakash (BA-12B-49-07/2022)

After having seen and heard the evidence of the witnesses at a full trial, the learned Sessions Court Judge held that the Respondent/Plaintiff has proved its case of negligence against the Appellant/Defendant and thereupon allowed the 2 Respondent/Plaintiff’s claims for damages.

Dissatisfied with the said decision of the learned trial judge, the Appellant/Defendant appealed to this Court against the trial judge’s award of damages for above-knee amputation (“AKA”).

The Respondent/Plaintiff in turn filed a Notice of Cross-Appeal against the trial judge’s dismissal of his claim for loss of earning capacity.

After having read the appeal records and having heard the parties’ respective submissions, this Court found no valid basis to disturb the findings of fact by the trial judge or the factual conclusions made by the trial judge, and on 13 March 2023 this Court dismissed the Appellant/Defendant’s appeal and also dismissed the Respondent/Plaintiff’s cross-appeal.

The Appellant/Defendant has filed an appeal against this Court’s said dismissal of his appeal.

The principles on appellate intervention that can be gleaned from the appellate courts’ decisions can be summarised as follows:

An appellate court should not interfere with the trial judge’s findings of fact unless the trial judge has erred in principle or was plainly wrong in making such findings;

When it comes to an evaluation of oral evidence, the extent to which the benefit of hearing the witnesses and watching the evidence unfold will result in the trial judge having a particular advantage over an appellate tribunal will vary from case to case. Accordingly, it is not possible to lay down any single clear general rule as to the proper approach for an appeal court to take where the appeal is against an evaluation..." : per Lord Neuberger's remarks at paragraph 60 of In Re B (a Child) (FC) [2013] UKSC 33; cited with approval by Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [144]; 3

The mere fact that the appellate court would have come to a different conclusion on the evidence is not a sufficient ground for interference with factual decision except where the decision of the trial court was based entirely on inferences to be drawn from the proved facts (as opposed to findings which involved the issue of the credibility of the witnesses), in which case the appellate court would be placed in the same position as the trial court: per Abdul Rahman Sebli FCJ in Lim Choon Seng v. Lim Poh Kwee [2020] 5 MLJ 587 at paragraph [83];

The principle on which an appellate court could interfere with findings of fact by the trial court is the ‘plainly wrong’ test, in the sense that the finding cannot reasonably be explained or justified and so is one which no reasonable judge could have reached; and that if the appellate court is not satisfied that the decision suffers from that infirmity, it is irrelevant that with whatever degree of certainty, it would have considered that it would have reached a different conclusion from that of the trial judge: per Abdul Rahman Sebli FCJ in Lim Choon Seng v. Lim Poh Kwee [2020] 5 MLJ 587 at paragraph [82];

It is not sufficient for the appellate court to reverse the findings on fact merely because on a particular point of evidence, it disagreed with the conclusion made by the trial court on whether one party or the other is to be believed on the evidence that they gave in court. Although there may be inconsistencies in the evidence which could mean that another judge would have been persuaded to reach a different conclusion, this is not relevant when considering if a trial judge's findings of fact could be overturned: per Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [151];

To justify interference with the trial judge’s findings of fact, the appellate court has to make the appropriate determination that the trial Judge had gone plainly wrong in his decision, in the sense that it could not reasonably be explained or justified and so was one which no reasonable Judge could have reached. Unless the conclusion that the trial judge drew from it was one that no reasonable judge would have made, his conclusion on the point should be left undisturbed: per Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, 4 Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [152];

Rather than adopting a rigid set of rules to demarcate the boundaries of appellate intervention insofar as findings of fact are concerned, the plainly wrong test as espoused in decisions of this Court should be retained as a flexible guide for appellate courts. As long as the trial judge's conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts: per Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [148];

Apart from the above examples and general statements of principles, the application of the plainly wrong test by an appeal court in reversing the findings of facts by a trial court should not be subject to any fixed or rigid guidelines: per Zabariah Mohd Yusof FCJ in Ng Hoo Kooi & Anor v. Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 1 LNS 1060 paragraph [148];

Generally, there is reluctance on the part of the appellate court to disturb the trial court’s assessment of liability apportionment in road accident cases unless the appellate court is satisfied that it must be wrong: Court of Appeal in Arab Malaysian Finance v. Steven Phoa [2003] 1 CLJ585; [2020] 5 MLJ 587. THE PARTIES’S ARGUMENTS ON DEFENDANT’S APPEAL ON ABOVE-KNEE AMPUTATION

In this appeal, the Appellant/Defendant submitted that the learned Sessions Court Judge erred in fact and in law in coming to her decision that the above-knee amputation was caused by the injuries sustained in the road accident for which the Defendant was held as negligent. 5

In support of the submission, the Appellant/Defendant relied on these arguments:

The Plaintiff had been suffering from diabetes for years even before the date of the road accident;

When the Plaintiff met with an accident with the Defendant’s motor vehicle on 14.8.2014 his leg injuries were open fractures over proximal phalange of the 2nd toe and 3rd toe, multiple laceration wound over the right leg (10 sutures) i.e. wound over dorsal aspect of 2nd toe and wound over plantar aspect of the 3rd toe; and pain and swelling over the right leg;

In January 2015, he was admitted to hospital for leg injury due to piercing by a sharp metal in his workshop; and

The AKA happened in February 2015 after the injuries by sharp metal.

In opposing the Defendant’s appeal, the Plaintiff argued that:

The medical history of the Plaintiff and his pre-existing medical conditions, including his diabetes, had affected and/or hampered his recovery from the injuries he sustained in the motor vehicle accident on 14.8.2014 which led to complications and eventually the above-knee amputation of his right leg;

Prior to the accident on 14.8.2014 the Plaintiff suffered from the following medical problems, which included:- i) Diabetes Mellitus; ii) Dyslipidemia (Hyperlipidemia); iii) CVA (CT Brain done in Sept 2013); and iv)

His leg injuries on 14.8.2014 immediately upon the occurrence of the traffic accident were open fractures over proximal phalange of the 2nd toe and 3rd toe, multiple laceration wound over the right leg (10 sutures)i.e. wound over dorsal aspect of 2nd toe and wound over plantar aspect of the 3rd toe; and pain and swelling over the right leg. 6

The Plaintiff did not recover from such injuries he sustained in the road accident, and on 4.9.2014, he underwent amputation of right toes No. 2, No. 3 and No. 4.

Although the Plaintiff had cuts or piercing by sharp metals in the course of his works prior to the road accident, he did not have to undergo any amputation of any limb or part of a limb.

In early February 2015, the Plaintiff was admitted to the hospital for his foot having been pierced by a sharp metal in the course of his works.

On 21.3.2015, the Plaintiff underwent above-knee amputation.

The main issue on the head of damages for above-knee amputation (AKA) is whether the AKA was caused by the injuries he sustained at the road accident of 14.8.2014. Findings and decision of the Trial Court on AKA

The findings of the trial court on the AKA issue are found in paragraphs [23] to [26] of the Sessions Court’s Grounds of Judgment in Enclosure 21: “[23] Merujuk kepada Ekshibit P4 dan menurut SP2, daripada rekod perubatan, jari kaki kanan ke-2, ke-3 dan ke-4 telah diamputasi kerana kaki Plaintif sudah hitam (gangrene) disebabkan oleh trauma yang telah berlaku iaitu disebabkan oleh kemalangan jalan raya yang telah berlaku. Ini dapat dilihat di Ekshibit P4 di mana SP2 telah mencatitkan di Bahagian Sejarah – “Pt also noted to have Rt foot pain & gangrene since 14.8.2014 secondary to alleged MVA”. Amputasi jari kaki kanan ke-2, ke-3 dan ke-4 telah dilakukan pada 4.9.2014 di Hospital Kuala Lumpur dan ini dapat dilihat di Ekshibit P4 di mana SP2 telah mencatitkan di Bahagian Rawatan – “Op (4/9/2014) – Rt 2nd, 3rd & 4th toe amputation”. Pihak-pihak juga tidak mempertikaikan bahawa amputasi jari kaki kanan ke-2, ke-3 dan ke-4 adalah diakibatkan oleh kemalangan jalan raya pada 14.8.2014 tersebut. Mahkamah membenarkan awad sebanyak RM30,000.00 untuk amputation of the 2nd, 3rd and 4th right toes berdasarkan Revised Compendium of Personal Injury Awards yang 7 memberikan garis panduan awad sebanyak RM14,5000.00 hingga RM30,000.00 untuk amputation 2 – 4 toes. [24] Menurut Plaintif, setelah jari kaki kanan ke-2, ke-3 dan ke-4 diamputasi pada 4.9.2014, Plaintif telah discaj dari Hospital Kuala Lumpur pada 24.9.2014 dan selepas beberapa minggu dari tarikh discaj, Plaintif terpaksa pergi ke bengkel kerana perlu menjaga perniagaan dan perlu menjaga bengkel disebabkan kalau Plaintif tidak kerja maka Plaintif tiada gaji. Plaintif terpaksa bekerja untuk menjaga keluarga. Semasa bekerja Plaintif memakai kasut keselamatan (safety boots) tetapi Plaintif masih tidak dapat berjalan dengan stabil, kaki kanan masih sakit dan masih jalan tempang. Pada lebih kurang bulan Februari 2015, bawah tapak kaki kanan Plaintif telah terkena benda besi (fine metal bristle) semasa bekerja dan telah menjadi sakit dan bernanah selepas 2 ke 3 hari. Plaintif telah pergi ke klinik Daran dan kemudiannya ke klinik SP Rawang untuk mendapatkan rawatan tetapi tidak sembuh. Plaintif telah pergi ke Damai Service Hospital tetapi telah diminta untuk pergi ke Hospital Kuala Lumpur untuk memeriksa kaki kanan Plaintif. Plaintif telah dinasihati doktor di Hospital Kuala Lumpur untuk memotong kaki kanannya tetapi Plaintif takut sehinggalah keadaan kaki kanannya menjadi semakin teruk, bengkak dan hitam dan Plaintif demam, barulah Plaintif pergi ke Jabatan Kecemasan Hospital Kuala Lumpur pada 21.3.2015 untuk mendapatkan rawatan tetapi kaki kanan Plaintif telah diamputasi (above knee amputation) pada 22.3.2015. Plaintif diwadkan selama 6 hari sehingga discaj pada 26.3.2015. [25] Pihak Defendan mempertikaikan bahawa above knee amputation adalah akibat dari kecederaan di kemalangan jalan raya di antara Plaintif dan Defendan pada 14.8.2014. Namun demikian, Mahkamah memutuskan bahawa above knee amputation pada 22.3.2015 adalah diakibatkan oleh kecederaan di kemalangan jalan raya di antara Plaintif dan Defendan pada 14.8.2014 berdasarkan alasan berikut: SD14 (Pakar Ortopedik Defendan) tidak bersetuju dengan pendapat SP12 (Pakar Ortopedik Plaintif) bahawa “The trauma to the Right second toe and the ensuing events until the amputation must have converted the Right forefoot area into a fibrous and less vascular region. Therefore, when a simple bristle pierced the area, the response is typical of an avascular tissue area. An abscess developed at the Right foot and soon became gangrenous. The 8 infection soon spread upwards and became necrotising fasciitis of the Right leg. This was treated with above-knee amputation” kerana menurut SD14 ini adalah disebabkan “the wound had already healed. The patient had pre-existing peripheral vascular disease and diabetes which predisposes him to infection (abscess and necrotizing fasciitis). A heal wound does not predispose him to the infection. In a heal wound, the only relative avascular area is the area of the scar which is at the base of the amputated toes”. Namun demikian, Mahkamah lebih cenderung merujuk kepada pendapat SP12 dan di atas imbangan kebarangkalian Mahkamah mendapati pendapat SP12 adalah lebih tepat kerana walaupun Rekod Perubatan Plaintif dari Hospital Kuala Lumpur (Ekshibit P12 iaitu Ikatan H) menyatakan bahawa “wound was healed”, keterangan Plaintif bahawa Plaintif masih diberi rawatan susulan selepas Plaintif discaj dari Hospital Kuala Lumpur setelah jari kaki kanan ke- 2, ke-3 dan ke-4 diamputasi adalah disokong oleh Ekshibit P12 di muka surat A1 yang merupakan Fail Rawatan Untuk Pesakit Luar Hospital Kuala Lumpur dan Ekshibit P29 di muka surat 30 dan 31 Ikatan B. Ini menunjukkan bahawa luka di tempat amputasi jari kaki kanan ke-2, ke-3 dan ke-4 sebenarnya masih belum sembuh dan keadaan ini selari dengan kenyataan doktor yang merawat Plaintif di Ekshibit P12 di muka surat 349 Ikatan H bahawa semasa tarikh akhir rawatan pada 9.1.2015, proses sembuh bagi luka Plaintif di tempat amputasi jari kaki kanan ke-2, ke-3 dan ke-4 adalah rumit iaitu “complicated with poor healing and poor blood supply”. Tambahan pula SP12 juga memberikan keterangan bahawa “Diabetes mellitus and dyslipidemia are chronic metabolic diseases. These diseases, particularly diabetes results in weakened immune system, and if left untreated will lead to deterioration of general health. Uncontrolled diabetes also leads to infection and poor healing of wound. This in turn causes further reduction in blood flow and damage to the nerves, resulting in weakness, deformity and numbness of the foot. Numbness of the foot will lead to further deterioration of the toes”. Oleh yang demikian, Mahkamah bersetuju dengan pihak Plaintif bahawa kecederaan amputasi kaki kanan (above knee amputation) adalah berkait dengan kemalangan yang berlaku pada 14.8.2014 dan kemalangan tersebut telah mengakibatkan kehilangan kaki kanan Plaintif. [26] Mahkamah membenarkan awad sebanyak RM90,000 untuk above knee amputation (of the right leg) berdasarkan Revised Compendium of Personal Injury Awards yang memberikan garis 9 panduan awad sebanyak RM84,000.00 hingga RM90,000.00 untuk above knee amputation.” Thin skull rule

It is a common law rule that a tortfeasor cannot complain if the injuries he has caused turn out to be more serious than expected because his victim suffered from a pre-existing weakness or other vulnerability, such as an unusually thin skull or unusually weak medical condition which pre-existed before the commission of the tort. A tortfeasor must take his victim as he finds him: see Smith v Leech Brain & Co Ltd [1962] 2 QB 405. This rule is also known as the eggshell skull rule.

As the tortfeasor’s liability is only to the extent of compensating for the injuries caused by his tortious wrong, the compensation the tortfeasor has to pay to the plaintiff should not be to the extent of making any improvement to the plaintiff’s pre-existing condition or weakness. Thus, many legal practitioners take the position that the thin skulled rule is counter-balanced by another legal principle which provides that a tortfeasor does not have to put the plaintiff in a better position than he would have been in if he was never injured. To them, the “crumbling skull” plaintiff is a relative of the thin skulled plaintiff and can also be considered as a rule of law.

The “crumbling skull” rule simply recognizes that a person’s pre-existing condition was inherent in the person’s “original position” and the tortfeasor need not put the plaintiff in a position better than before the injury occurred. The defendant is liable for the injuries and impairments caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. Many defendants will try to argue that the plaintiff had a “crumbling skull” in cases where the plaintiff is alleging a “thin skull” in order to reduce the damages ultimately payable.

Analysed in another perspective, both the “thin skull” rule and the “crumbling skull” rule are logical and practical applications of the law of causation and effect and the scope of the tortfeasor’s liability for damages. 10

In Malaysia, the thin skull rule has been recognised in a number of decided authorities.

KC Vohrah J (later JCA) in Sivakumaran Selvaraj v. Yu Pan & Anor [1994] 4 CLJ 1066 explained at length the judicial recognition of the thin skull rule in the following terms: “The rule in Wagon Mound (No. 1) has been discussed and accepted as applicable in Malaysia in several other Malaysian cases including Ling Nam Rubber Works v. Leong Bee & Co. [1968] 1 MLJ 216 (FC), Leong Bee & Co. V. Ling Nam Rubber Works [1970] 1 LNS 59, Ang Chai Ha & Ors v. Sri Jaya Transport Co. [1974] 1 MLJ 87 (HC), Government of Malaysia & Ors v. Jumat bin Mohamad & Anor [1977] 2 MLJ (FC). In England, however, in Smith v. Leech Brain & Co. Ltd. [1969] 3 All ER 1159 Lord Parker C.J. sitting as trial Judge considered the rule in The Wagon Mound (No. 1) and expressed this view, at 1161, that he was satisfied that the Judicial Committee in the Wagon Mound did not have the "thin skull" cases in mind and in such cases "it has been the law of this country that a tortfeasor takes his victim as he finds him." He then referred to a short passage in the decision of Kennedy, J in Dulieu v. White & Sons [1901] 2 KB 669 where he said: If a man is negligently run over or otherwise negligently injured on his body, it is no answer to the sufferer's claim for damages that he would suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart. Lord Parker continued:

To the same effect is a passage in The Arpad [1934] All ER Rep But quite apart from these two references, as is well known, the work of the Courts for years and years have gone on that basis. There is not a day that goes by where some trial Judge does not accept that principle, that the tortfeasor takes his victim as he finds him. If the Judicial Committee had any intention of making an inroad into that doctrine, I am quite satisfied that they would have said so. In the case before Lord Parker the plaintiff's husband was burned on the lip by a piece of molten metal. The burn was treated and healed but he died of cancer and it was found that the burn promoted cancer in tissues which already had a pre-malignant condition. 11 Parker CJ held the defendants liable as, as was stated earlier, for the purpose of assessing damages a tortfeasor took his victim as he found him and The Wagon Mound did not override this principle. Since the type of injury which the deceased suffered was reasonably foreseeable, the defendants were liable for the damages claimed, although they could not reasonably have foreseen the ultimate consequences of the injury, viz, that the burn would cause cancer from which the man would die (see headnote at p. 1159). In elaborating on the principle that if the Judicial Committee had any intention to make an inroad into the doctrine that the tortfeasor takes his victim as he finds him, they would have said so, Lord Parker stated: It is true that, if one takes the wording in the advice given by Viscount Simonds in The Wagon Mound and applies it strictly to such a case as this, it could be said that they were dealing with this point. But, as I have said, it is, to my mind, quite impossible to conceive that they were, and, indeed, it has been pointed out that they disclose the distinction between such a case as this and the one which they were considering when they comment on Smith v. London & South Western Ry. Co. [1870] LR 6C p 14. Lord Simonds, in dealing with that case in The Wagon Mound, said this: Three things may be noted about this case: the first, that, for the sweeping proposition laid down, no authority was cited; the second, that the point to which the Court directed its mind was not unforeseeable damage of a different kind from that which was foreseen, but more extensive damage of the same kind... In other words, Lord Simonds is clearly there drawing a distinction between the question whether a man could reasonably anticipate a type of injury, and the question whether a man could reasonably anticipate the extent of injury of the type which could be foreseen. The Judicial Committee were, I think, disagreeing with the decision in Re Polemis that a man is no longer liable for the type of damage which he could not reasonably anticipate. The Judicial Committee were not, I think, saying that a man is only liable for the extent of damage which he could anticipate, always assuming the type of injury could have been anticipated. That view is really supported by the way in which cases of this sort have been dealt with in Scotland. 12 Scotland has never, as far as I know, adopted the principle laid down in Re Polemis, and yet I am quite satisfied that they have throughout proceeded on the basis that the tortfeasor takes the victim as he finds him. As has been pointed out by A. Jones in his Textbook of Torts 4 ed. [1994] at 167, whatever the theoretical reconciliation of The Wagon Mound and the thin-skull rule, subsequent cases have confirmed Lord Parker's view in Smith v. Leech Brain & Co. Ltd. that the rule survived the sinking of Re Polemis (see, eg. Oman v. McIntyre SLT 168; Warren v. Scruttons Ltd. [1962], Lloyd's Rep 497). Jones (at 168) discussed Robinson v. Post Office [1974] 2 All ER and drew conclusions from this case and helped explain Pigney. In Robinson the plaintiff was injured as a result of the defendants' negligence. When he sought medical treatment he suffered a serious allergic reaction to an anti tetanus injection given to him by a doctor. The Court of Appeal held the defendants liable for this injury stating that a person who could reasonably foresee that the victim of his negligence may require medical treatment is liable for the consequences of the treatment "although he could not reasonably foresee these consequences or that they could be serious". As was pointed out by Jones there was no question in the case of the type of consequences being foreseeable provided the need for treatment is foreseeable (emphasis by Jones) and according to him this explains such a case as Pigney where the defendant were held liable for the suicide of the plaintiff's husband during a depressive mental illness induced by a severe head injury for which the defendants were liable. It is hard not to agree with such a conclusion. Jones quoted William [1961] 77 LQR, 179, 196 who succinctly observed: Either the victim's suicide was a normal reaction to his injuries, or it was abnormal. If it was normal, it should be taken as reasonably foreseeable; if was abnormal, it comes within the thin-skull rule as applied to [psychological] states. The above view was applied by the Ontario Court of Appeal in Cotic v. Gray [1981] 124 DLR (3rd) 641 where the facts of the case were almost similar to Pigney save that the deceased in Cotic, who had 13 committed suicide had a psychological predisposition to emotional upsets and fits of severe depression. In Cotic the plaintiff's husband suffered serious injuries when the car he was driving collided with another car, whose driver was killed. As earlier pointed out, prior to the accident the plaintiff's husband was subject to emotional upset and to fits of severe depression. Following the accident his condition degenerated from a neurotic to a psychotic condition. Sixteen months later he committed suicide. The plaintiff brought an action for damages for wrongful death against the estate of the other driver. At the trial before a jury of the plaintiff's action, the defendant admitted liability for the motor vehicle accident. The parties agreed that only the following question should be asked of the jury: "Did the defendant cause or contribute to the death of the... plaintiff's husband by the motor vehicle accident in question?" The jury answered the question in the affirmative and the trial Judge gave judgment for the plaintiff. The defendant appealed to the Ontario Court of Appeal. The Court of Appeal dismissed the appeal. In a long and elaborate judgment Lacouciere J.A. considered Re Polemis, The Wagon Mound, Pigney, Leech Brain, Dulieu v. White & Sons and a Canadian case Swami v. Lo [1979] 105 DLR 93d 451 (dealing with a dependency claim following the suicide of a deceased allegedly as a result of injuries suffered in a motor vehicle accident) amongst several other cases including 2 cases from New Zealand dealing with a similar issue and with issues of sanity of persons who committed suicide and came to the conclusion that the appeal should be dismissed. Weatherston JA concurred with him. Watson JA also agreed that the appeal should be dismissed. The view of the Lacouciere JA, with Weatherston concurring, was this (see headnote at p 641): Defendant argued that foreseeability of some physical injury resulting in death as a result of the defendant's negligent driving is insufficient, because death by suicide is damage of a different character which the reasonable person in the position of the defendant would not have foreseen. However the "remoteness - foreseeability" argument is interwoven with two other principles which must be considered, namely, the "egg-shell" or "thin-skull" doctrine because of the deceased's vulnerability by reason of his history of mental illness, and the novus actus interveniens defence or the alleged break in the chain of causation by the deceased's suicide. The negligent driving of the defendant was not in dispute. The only concern was with the limits or the extent of liability for conduct which was admittedly 14 negligent. It was unnecessary to decide whether the deceased's suicide was foreseeable in the general sense as a consequence of a kind which human experience indicates may result from an injury, or whether the suicide was unforeseeable but treated as an exception to the foreseeability requirement. In any case, it must be assumed that the jury accepted the medical evidence that the deceased, by reason of his history of emotional problems was exceptionally vulnerable to a psychotic reaction following a motor vehicle accident. Because of the so-called "egg-shell" or "thin skull" principle, the defendant has to take his victim as he finds him, a psychologically vulnerable individual. It must also be assumed that the jury were satisfied, on a preponderance of the evidence, that the accident, while not necessarily the sole cause, was a direct and substantial cause without which the suicide would not likely have happened.”

In Cheong Fatt Tze Mansion Sdn Bhd v. Hotel Continental Sdn Bhd; Hong Hin Thai Enterprise Sdn Bhd (Third Party) [2010] 1 LNS 980 Chew Soo Ho JC referred to the 'egg-shell skull rule' and also described the same as the thin skull rule. The ‘eggshell skull rule’ quoted by the learned JC was as stated in para 7 -192 in Clerk & Lindsell on Torts which is as follows: ' The "egg-shell skull" rule. Long before Wagon Mound it was an established doctrine that a defendant has to take his victim talem qualem, which means that if it was reasonable to foresee some injury, however slight, to the plaintiff, assuming him to be a normal person, then the defendant is answerable for the full extent of the injury which the plaintiff may sustain owing to some peculiar susceptibility. The doctrine under consideration applies only when the plaintiff's pre-existing hypersensitivity is triggered into inflicting the injury complained of, or an existing injury is aggravated by the defendant's act... The commonest examples of the hypersensitivity type of case are persons who have the misfortune to suffer from haemophilia or "egg-shell skulls." MacKinnon L.J. said that "one who is guilty of negligence to another must put with idiosyncrasies of his victim that increases the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner had an unusually fragile one." (Owens v. Liverpool Corp. [1939] 1 K.B. 394 at 400 - 401)... Where the expected magnitude of the damage is caused by the unexpected sensitivity of the property damaged, it is submitted that here too the defendant should be liable for the full extent, To distinguish between personal and 15 property damage in respect of hypersensitivity would be unacceptable...'

The eggshell skull principle stated by Chew Soo Ho JC was also applied by Lee Swee Seng J (now JCA) in paragraphs [65] to [67] of the judgment in Shahbiru (1990) Sdn Bhd v. Goh Aik Chin & Anor [2019] 1 LNS 1380.

The thin skull rule was also applied by Quay Chew Soon JC (now J) in Janagi Nadarajah & Anor v. Sjn Razali Budin & Ors [2021] 10 CLJ 915: see paragraph [90] of the judgment.

In light of the above decided authorities, this Court holds that it is well-settled in Malaysia that the thin skill rule, also known as the eggshell skull rule, is an accepted principle of law in Malaysia. Analysis and conclusion of this Court

In our present case the Plaintiff prior to the date of the traffic accident suffered for diabetes and had weakened body condition which rendered him more vulnerable. Prior to the accident on 14.8.2014 the Plaintiff suffered from the following medical problems, which included:- i) Diabetes Mellitus; ii) Dyslipidemia (Hyperlipidemia); iii) CVA (CT Brain done in Sept 2013); and iv) Left Corotid Stenosis. See also the trial judge’s Grounds of Judgment extracted in paragraph [13] above.

In the circumstances this Court holds that the Plaintiff here was a person who, before the date of the traffic accident, came within the ambit of the thin skull rule or eggshell skull rule.

Hence, the Defendant had to find the Plaintiff as he was.

In the traffic accident on 14.8.2014, the Plaintiff suffered “open fractures of over proximal phalange of the 2nd toe and 3rd toe, multiple laceration wound over the right leg (10 sutures) i.e. wound over dorsal aspect of 2nd toe and wound over plantar aspect of the 3rd toe; and pain and swelling over the right leg”. 16

On a balance of probabilities, open fractures would have exposed the wounds to infection by dirt and dust. Although 10 sutures were carried out on the date of admission to the hospital on 14.8.2014, the Plaintiff did not recover from his wound. On 4.9.2014, 20 days after the traffic accident, his 2nd, 3rd and 4th toes on his right leg were amputated.

There is evidence at the trial that although the Plaintiff’s legs or body part were pierced by sharp metals in the past before the date of the traffic accident, the Plaintiff did not have to go for amputation of any part of his limbs before the date of the traffic accident.

In January 2015, there were recorded medical note that his wound did not heal well.

Then in February 2015, the Plaintiff’s right foot was pierced by a sharp metal in the course of his works at his workshop.

On 21.3.2015, the Plaintiff underwent above-knee amputation.

The Sessions Court made a factual finding that the Plaintiff’s above-knee amputation was caused by the injuries suffered during the traffic accident and that the chain of causation had not been broken.

Taking into consideration the thin skull rule (or the eggshell skull rule) and the evidence adduced at the trial, this Court holds that there is sufficient evidence for the trial judge to make the factual finding on causation and that the trial judge has not erred in principle. Further, the trial judge’s factual finding is not plainly wrong. There is no misapprehension of fact on the part of the trial judge is coming to her decision to allow the head of damages on above-knee amputation.

In the premises this is not a fit and proper case for any appellate intervention on the factual decision of the trial judge on the cause of the above-knee amputation. RESPONDENT’S CROSS-APPEAL ON LOSS OF EARNING

As there is no appeal against this Court’s dismissal of cross-appeal, this Court will deal briefly on the Respondent/Plaintiff’s cross-appeal 17 regarding the loss of earning capacity.

It is the considered view of this Court that the trial judge’s decision to dismiss the Plaintiff’s cross-appeal is also a factual decision that on the facts and based on the evidence adduced the Plaintiff did not lose any capacity to earn income.

From the evidence adduced, this Court holds that there is sufficient evidence for the trial judge to make the factual finding on absence of loss of earning capacity and that the trial judge has not erred in principle. Further, the trial judge’s factual finding is not plainly wrong. There is no misapprehension of fact on the part of the trial judge is coming to her decision to dismiss the Plaintiff’s claim for loss of earning capacity.

In the premises this is not a fit and proper case for any appellate intervention on the factual decision of the trial judge which dismissed the Plaintiff’s claim for loss of earning capacity.

In conclusion, this Court on 13 March 2023 dismissed both the Defendant’s appeal and the Plaintiff’s cross-appeal.

As each party has lost in his respective appeal and cross-appeal, this Court also ordered that each party shall bear his own costs of appeal and cross-appeal. Dated : 2nd May 2023. Signed ..……................................................................. TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCvC 10) 18 To the parties’ solicitors:

For the Appellant : Nor Suhaida binti Ibrahim Messrs Naicker & Association (Kuala Lumpur)

For the Respondent : Mabel Sabastian Messrs Sabastian & Co. (Petaling Jaya)