Vijayan A/L Subramaniam v Muhammad Faizal Bin Khalili (JA-12B-50-10/2019)

This was an appeal (“this Appeal”) against the decision of the learned Sessions Court Judge (“SCJ”) on 6 October 2019 on the issue of quantum only. For ease of reference, the Appellant and Respondent will be referred to respectively as the Defendant and Plaintiff. The factual background [2] This Appeal arose from proceedings in the Sessions Court pursuant to an accident that occurred on 26 March 2017, involving a motorcycle ridden by the Plaintiff, and a motorcar driven by the Defendant.

The learned SCJ had apportioned liability at 20:80 between the Plaintiff and Defendant, and had dealt with the issue of quantum accordingly. The Defendant appealed against quantum. This Appeal was allowed only with regard to reducing the award pertaining to multiple pelvic ring and acetabular fracture from MYR140,000 to MYR72,000. Contentions, evaluation, and findings [4] The nub of the Defendant’s contention was that the general damages awarded by the learned SCJ for the following items were excessive, and hence in error. With regard to such damages, the following in Table A were awarded: 21 December 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 3 Table A

With regard to general damages awarded, it is trite law that this Court should be slow and disinclined to interfere with the finding of the learned SCJ merely because this Court thinks that if the case had been before it in the first instance, a different sum would have been awarded: No. Injuries Amount (in MYR) awarded by SCJ 1 Hypovolemic shock with intra-abdominal injury 20,000 2 Liver laceration and right kidney laceration 44,000 3 Fracture right superior and inferior rami fracture 40,000 4 Multiple pelvic ring and acetabular fracture with right hip dislocation 140,000 5 Left clavicle fracture with reduced muscle power and permanent disability 24,000 6 Right femoral head fracture and greater trochanter of the right femur 60,000 7 Head injury (traumatic intracranial bleed) and disabilities 45,000 8 Multiple permanent scars 20,000 9 Muscle wasting of the right thigh and calf 5,000 10 Post traumatic osteoarthritis of the right sacroiliac joint and right hip 10,000 11 Pain and suffering 10,000 21 December 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 4 Topaiwah v. Salleh [1968] 1 LNS 161 and Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 wherein Abdul Hamid Omar CJ (Malaya) (as he then was) stated: Now, in an appeal on quantum of damages, it is essential in order to come to a conclusion, to bear in mind certain principles which are well established. The appeal court is slow, indeed, disinclined to interfere with the judge's finding merely because the appeal court thinks that if the case had been before it in the first instance a lesser sum would have been awarded. Azmi CJ (Malaya) (as he then was) giving the judgment of the Federal Court in Topaiwah v. Salleh [1968] 1 LNS 161; [1968] 1 MLJ 284 said that: In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it entirely an erroneous estimate of the damages to which the plaintiff is entitled (see Flint v. Lovell [1935] 1 KB 354). The principle that should guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that, either there was an omission on the part of the judge to consider some relevant materials, or he had admitted for purpose of assessment some irrelevant considerations. If the court is satisfied or convinced that the judge had acted upon a wrong principle of law then it is justified in reversing; indeed, it is the duty to reverse the finding of the trial judge.

I also found instructive the Federal Court case of Rasidin Binpartorjo v Frederick Kiai [1976] 2 MLJ 214, [1976] 1 LNS 123, where it was stated by Wan Suleiman FCJ in the following passage: The principle upon which an appellate court will interfere with an award of damages made by a judge sitting alone has been stated by Lord Wright 21 December 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 5 in Davies v. Powell Duffryn Associated Collieries Ltd (2) at pp 616-617 as follows: Where the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v. Lovell. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency. Thus, the appellant here has to convince us that the learned trial judge has acted on a wrong principle of law, or has misapprehended the facts, or has for other reasons made a wholly erroneous estimate of the damage suffered. [Emphasis added.]

To justify reversing the decision of the learned SCJ, this Court has to be convinced that he acted upon some wrong principle of law, or that the amount awarded was at either end of the spectrum, as to make it an entirely erroneous estimate of the damages.

The legal proposition in an appeal against an award for damages was summarised aptly in Kovalan Rajoo v. Hanif Muhamad Pauzi [2016] 2 CLJ 965, where it was stated:

The onus on an appellant is a heavy one;

(ii) The appellant must satisfy the appellate court: a. That the trial judge acted on a wrong principle of law; or 21 December 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 6 b. The damages awarded was so extremely high or low to make it an entirely an erroneous estimate of damages, or in other words, it is plainly unreasonable; or c. The trial judge omitted to consider some relevant materials or admitted some irrelevant considerations, resulting in the award of damages being wholly inaccurate. In other words, if the trial judge had considered the relevant materials or did not take into consideration the irrelevant considerations, the trial judge would have come to an award entirely different from what he had awarded.

(iii) The award of damages in each case stands by itself;

(iv) It is not enough for the appellant to show there was a difference of opinion or preference. [9] In United Plywood & Sawmill Ltd v Lock Ngan Loi, Gill FJ (as he then was) put it very aptly when he applied what I would refer to as the “goodness gracious” test: The general principle is that an appellate court can only interfere with an assessment if it is considered inordinately low or inordinately high as to make the court exclaim, 'Good gracious, is that the sum which has been awarded that sum must be altered', or it is so much out of line with the discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as a wholly erroneous estimate. [10] I am mindful that the Compendium of Minimum and Maximum Awards for Personal Injury Claims (“the Compendium”) is a useful gauge for 21 December 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 7 the awards prescribed for personal injury claims, as was stated by S Nantha Balan J (as he then was) in Abdul Waffiy Wahubbi & Anor v. AK Nazaruddin Ahmad [2017] 5 LNS 52: It is axiomatic and imperative that when awarding damages for pain and suffering for personal injuries, the court must endeavour to ensure that the sum awarded falls within the range as stipulated in the Compendium and it would be wrong for trial courts to ignore the range of damages as recommended in the Compendium and to pluck a quantum from the air and make an award for a particular injury which does not resonate with the range in the Compendium. [11] However, at the same time, it must also be noted that the Compendium is not cast in stone. The fact that it is revised from time to time is also an indication that it has some degree of fluidity. The rationale for the Compendium may be obtained from the following paragraph of the Malaysian Bar Circular No 255/2018: We wish to highlight to Members that the Compendium is merely a guideline, intended as a guide reference for judges and lawyers. The Compendium is not meant to stifle the rights of the parties to submit below or above the stipulated quantum, nor is it meant to fetter the discretion of the court. Judges and lawyers are at liberty to depart from the Compendium if case law or factual circumstances so dictate. [12] Bearing in mind that the Compendium is not static, some latitude, therefore, must be given to the trial judge to decide the amount based on the facts of each case. [13] There is no doubt of the existence of case authorities that support the Defendant’s argument in reducing the sum awarded by the learned SCJ. However, in the same vein, there are also authorities to support the contention that the amount should be increased. 21 December 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 8 [14] In the present case, except for the multiple pelvic ring and acetabular fracture, the learned SCJ had not committed any appealable error with regard to the amount of general damages awarded. [15] However, with regard to the disabilities the Plaintiff had suffered from the injury to the multiple pelvic ring and acetabular fracture and right hip dislocation, a perusal of the grounds of judgment of the learned SCJ indicated that he had actually provided his reasons for a global amount of MYR72,000, but yet in the Order, MYR140,000 was reflected instead. [16] In my view, the amount of MYR72,000 fell neatly within the Compendium. Furthermore, he had relied on the authorities of Mohd Yusof Abas lwn Norizan Katiban & Satu Lagi [2016] 5 LNS 7 and Paramasivam a/l RJ Raman v Ko Bing Liyong & Anor [2017] 2 PIR [54] to justify the amount of MYR72,000, which in my view, was a fair and reasonable amount. [17] As such, the amount of MYR140,000 stipulated in the Order of the learned SCJ triggered the ‘goodness gracious’ test, as it was too excessive an amount to be allowed. Conclusion [18] In the upshot, therefore, based on the aforesaid reasons, and after careful scrutiny and consideration of all the evidence before this Court, including the written and oral submissions of both parties, and the grounds of judgment of the learned SCJ, the Defendant’s 21 December 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 9 appeal was allowed with costs, only with regard to the injury to the multiple pelvic ring and acetabular fracture and right hip dislocation, where the amount was reduced from MYR140,000 to MYR72,000. Dated: 21 December 2021 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel: For the Appellant/ Defendant – Mimie Asmiedah binti Azmi; Messrs Othman Hashim & Co For the Respondent/ Plaintiff – Sri Wahyuni binti Habib; Messrs Venga & Co 21 December 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 10 Cases referred to: ➢ Abdul Waffiy Wahubbi & Anor v. AK Nazaruddin Ahmad [2017] 5 LNS 52 ➢ Kovalan Rajoo v. Hanif Muhamad Pauzi [2016] 2 CLJ 965 ➢ Mohd Yusof Abas lwn Norizan Katiban & Satu Lagi [2016] 5 LNS 7 ➢ Paramasivam a/l RJ Raman v Ko Bing Liyong & Anor [2017] 2 PIR [54] ➢ Rasidin Binpartorjo v Frederick Kiai [1976] 2 MLJ 214, [1976] 1 LNS 123 ➢ Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 ➢ Topaiwah v. Salleh [1968] 1 LNS 161 ➢ United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] 1 LNS 164 Legislation referred to: ➢ Malaysian Bar Circular No 255/2018 Other sources referred to: ➢ Compendium of Minimum and Maximum Awards for Personal Injury Claims