[2023] 1 LNS 2189 Legal Network Series

DALAM MAHKAMAH TINGGI MALAYA DI TAIPING

DALAM NEGERI PERAK DARUL RIDZWAN, MALAYSIA
[RAYUAN SIVIL NO: AB-12BNCVC-6-03/2022]

ANTARA

1. ABDUL MAJID OTHMAN

[NO. K/P: 490920-07-5289]

2. JAMILAH HASHIM

[NO. K/P: 470131-08-5347] ... PERAYU-PERAYU

DAN

ONG JIA HAO

[NO. K/P: 010331-08-0519] ... RESPONDEN

(DI DALAM PERKARA MAHKAMAH SESYEN DI TAIPING )

[GUAMAN NO: AB-A53KJ-186-11/2019]

ANTARA

ONG JIA HAO

[NO. K/P: 010331-08-0519] ... PLAINTIF

DAN

3. ABDUL MAJID OTHMAN

[NO. K/P: 490920-07-5289]

4. JAMILAH HASHIM

[NO. K/P: 470131-08-5347] ... DEFENDAN-DEFENDAN

GROUNDS OF JUDGMENT

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[2023] 1 LNS 2189 Legal Network Series
INTRODUCTION

[1] Some say that a trip to Kuala Sepetang, about 20 minutes' drive from
Taiping, would not be complete without trying its famous local fare of
Mee Udang. Others say the prawn noodles are just overrated, expensive
and not worth coming back for. As it happened on that fateful night of
19.8.2018, this was exactly what Abdul Majid Bin Othman ("the 1 st
Defendant" as he was at the Sessions Court) and his family had in mind.
They came all the way from Bukit Mertajam to try the famous prawn
noodles. Little did they know what was going to happen on the way there
and that they might not even get to taste the supposedly delicious fare.

[2] The night weather fine but the road was wet and littered with fallen
leaves and rubbish. The stretch of road at KM 2 from Kuala Sepetang to
Taiping which was near a river, was not lit at all and it was very dark. The
69 years-old 1 st Defendant and his wife (the 2 nd Defendant who was the
owner of the car), and their grandchildren were in the car. They were
travelling to Kuala Sepetang to have their dinner at about 9.00pm when
suddenly out of nowhere, they heard a "boom" and they felt their car being
hit by something on the right side. Allegedly, a motorcyclist had hit the
car and the rider was flung into a drain on the opposite side of the road
due to the impact of the collision.

[3] The rider of the motorcycle was 17-years old Ong Jia Hao ("the
Plaintiff” as he was at the Sessions Court). As fate would have it, the
Plaintiff was on the way to Taiping to meet his girlfriend after finishing
work at Kuala Sepetang. A 'date' that literally changed his life forever (no
pun intended). He lost the whole of his right leg and suffered other
horrifying injuries. It was very tragic indeed.

BACKGROUND

[4] The Sessions Court on 9.3.2022 found the Plaintiff to be 80% liable
for the accident and hence, this appeal at the High Court was against
liability and quantum. The parties are referred to as they were at the
Sessions Court as both have appealed against my decision delivered on

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23.8.2023. The learned Sessions Court Judge (SCJ) had written a very long
and quite comprehensive grounds of judgment. Nevertheless, while I
agreed with some of her findings, I found that from the facts established in
the case, both parties were almost equally liable for the accident and re -
apportioned liability at 40% and 60% against the Plaintiff and Defendants,
respectively. I had interfered with the factual findings of the trial judge
because it was "plainly wrong" in the sense that it could not reasonably be
explained or justified and one which no reasonable judge could have
reached: Tengku Dato Ibrahim Petra Tengku Indra Petra v. Petra Perdana
Berhad & Anor Appeal [2018] 2 CLJ 641.

[5] It is trite law that an appellate court would be slow to disturb the
findings of the trial court unless it is convinced that there have been
substantial misdirection of facts and law which merited appellate
intervention. The appellate court will determine whether or not the trial
court arrived at its decision or finding correctly on the basis of the
relevant law and/or the established evidence. It will examine the process
of evaluation of the evidence by the trial court. A decision arrived at by a
trial court without or insufficient judicial appreciation of the evidence may
be set aside on appeal. This is consistent with the established "plainly
wrong" test: Gan Yook Chin & Ors v. Lee Ing Chin & Ors [2004] CLJ 309
(FC). Hence, regardless of any number of grounds raised in the
Memorandum of Appeal, the duty of the appellate court in a civil appeal is
to determine whether the appellant has proved his case on a balance of
probabilities.

[6] I am mindful that the trier of fact would have had the benefit and
advantage of seeing and hearing the witnesses and the opportunity to
assess their demeanour: Rasidin Bin Partojo v. Frederick Kiai [1976] 2
MLJ 214. He or she would have had first-hand opportunity to evaluate and
appraise the evidence of the witnesses. However, in the instant case, in
varying the apportionment of liability made by the SCJ, I found there was
judicial misappreciation of the facts, particularly in regard to the point of
impact of the collision and that the Plaintiff did not have a valid licence to

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ride a motorcycle, which led the SCJ to conclude that the Plaintiff was
80% liable for the accident. This Grounds of Judgment contain my
reasonings for departing from the established principle.

[7] There were 2 appeals in this case at the High Court i.e. Appeal Nos.
AB-12BNCVC-4-03/2022 and AB-12BNCVC-6-03/2022 filed by the
Plaintiff and Defendants, respectively, against the whole decision of the
Sessions Court in Taiping. I have prepared this Grounds of Judgment to
encompass both appeals which were heard together on 2.8.2023. By a
court order dated 7.2.2023, both appeals were ordered to be heard together
and hearing was fixed on 27.4.2023. However, the Plaintiff's solicitor filed
a letter dated 21.3.2023 in respect of Appeal No. AB - 12BNCvC-6-
03/2022 giving notice of a Preliminary Objection (PO) to the Defendants'
solicitor pursuant to Rule 11.04 of the Bar Council Rulings for its failure
to adhere to O. 55 r. 4(4) of the Rules of Court 2012 (ROC) when it did
not serve a copy of the Draft Index of the Record of Appeal upon the
Plaintiff's solicitor. There was no application for extension of time to
serve the Draft Index. Meanwhile, the Defendants' solicitor filed a letter
dated 3.4.2023 of its intention to raise a PO on the following issues:

i. failure to adhere to O. 55 r. 4 of the ROC. Affidavits and

exhibits in relation to interlocutory application should not be
included as part of the records of appeal;

ii. appeal on the decision of the interlocutory application filed at

Sessions Court under Enclosures 48 and 115 were out of time
under Order 55 r. 5 of the ROC; and

iii. fresh evidence is inadmissible on appeal under O. 55 r. 7 of the

ROC. Evidence not marked as Exhibit can neither be included
in the Record of Appeal nor tendered in Court.

[8] At the hearing of the PO on 27.4.2023, among the complaints were

that the Defendants failed to include a Hospital Taiping A&E report and
an OKU Card of the Plaintiff (marked as an exhibit), but had included a
witness statement of a person who was not called to testify in court. In

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response to the Plaintiff's PO, the Defendants' solicitor submitted that they
merely overlooked to serve the Draft Index but had served the Records of
Appeal within time and that there was no injustice caused. It was also
submitted that the PO did not mention anything about documents being
included or excluded in the Record of Appeal but only on technicality of
non-compliance with O. 55 r. 4(4). The Defendants' solicitor stated that if
they were informed about the Record of Appeal earlier, they would have
withdrawn the filed records and rectified the issue(s) immediately.

[9] On 25.5.2023, this Court delivered its decision on the 2 POs filed
where in regard to the Plaintiff's PO, the Court dismissed it and invoked
O. 1A of the ROC, having regard to the overriding interest of justice and
not only to the technical non-compliance with the Rules. However, the
costs of the PO to be borne by the Defendants to compensate for the Draft
Index not filed in accordance with O. 55 r. 4. The Court applied O. 2 r. 3
in resolving this PO raised by the Plaintiff. In regard to the Defendants'
PO, the Court stated that trial documents and witnesses must be managed
at the PTCMs properly so as not to surprise the opponent and also the
Court. If the Plaintiff really believed that the documents would affect the
decision or the outcome of the trial, they should have proceeded with the
appeal which they filed earlier; this is one of the subject -matters of the
present appeal before the Court of Appeal i.e. on Encls. 48 and 115 that
were dismissed by the SCJ. They would have argued that there was finality
in the interlocutory decisions.

[10] Briefly, Encl. 48 was an application at the Sessions Court to amend

the Statement of Claim to include medical costs, therapy costs and medical
equipment recommended by a doctor. Encl. 115 was an application by the
Plaintiff to include in the bundle of documents a CD which showed the
Plaintiff's condition after the accident as well as the affidavits and
submissions filed in respect of the application. The Defendants, submitted
that the Plaintiff filed a Notice of Appeal pursuant to the decision of the
Sessions Court to dismiss Encl. 48 and then withdrew the notice; but in
this appeal they did not indicate they would be appealing on that decision.

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They also submitted the introduction of a CD and a witness at a late stage
of trial, which they would not have an opportunity to cross -examine the
witness, would be a miscarriage of justice if the court allowed it.

[11] The Plaintiff's solicitor argued they did not appeal because it was an
interim decision. Hence, they have included the CD and document in the
Record of Appeal. The Defendants submitted that the CD was not fresh
evidence as it was brought in the Sessions Court's trial but was not
allowed. On the issue of the Plaintiff's appeal being time -barred, they
submitted that the present Notice of Appeal stated he was appealing
against the whole of the Sessions Court decision and the notice have
covered the appeal against the interim decisions also. Please refer to the
GOJ in Encl. 13 at page 10, paragraphs 23.2 and 23.3 and at page 18 in
paragraph 24.3 for the rationale of the SCJ in dismissing the applications.

[12] The Court generally accepted the PO of the Defendants with no order
as to costs. The Court proceeded to give directions in preparation for the
hearing of the appeals and urged parties to move forward to ensure that the
appeals could be disposed of expeditiously, bearing in mind the accident
happened on 19.8.2018. The Grounds of Judgment of this Court in respect
of the POs is as per Encl. 58 of Appeal No. AB -12BNCV-4- 03/2022 dated
31.7.2023 because the Plaintiff had filed a Notice of Appeal against the
decision on the POs on 7.6.2023. This Court opines that the decision to
dismiss Encls. 48 and 115 is more in the nature of a ruling which does not
finally dispose the rights of the parties and is therefore not appealable. On
the issue of the video being "fresh evidence" as claimed by the Plaintiff,
the Court found that it did not satisfy the 3 conditions in Ladd v. Marshall
[1954] 3 AER 745.

[13] There was also an application for a stay of proceedings pending

appeal to the Court of Appeal against the decision on the POs which was
disposed of on 2.8.2023 just before the appeals were heard. I did not allow
the application for stay of proceedings as I did not see it fit to postpone
the appeals, since there were no special circumstances to grant the stay,
more so when more than a year had passed after the appeals were

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registered in March 2022.

THE APPEAL

A. On the issue of liability

[14] On the issue of liability, the witnesses were the Plaintiff himself
(SP7), SP1, SP2 and the Plaintiff's uncle Ong Ah Eng (SP4) who arrived at
the scene at 9.10 pm. The witnesses for the Defendants were the 1 st
Defendant (SD6), the 2 nd Defendant (SD5) who was seated next to him in
the car and Melvin a/I Swamirajoo (SD4) and insurance adjuster.

[15] The Defendants' version of the accident was as set out in paragraph 2
above. The 1 st Defendant in his police report lodged approximately 2 hours
after it happened stated that the motorcyclist (the Plaintiff) suddenly
encroached into his lane and hit the front part of his car bearing
registration number PJL 2007. The motorcycle's headlight was not on. The
1 st Defendant braked and tried to avoid the motorcycle but failed. The
damages to his car was listed in Exhibit D7, and they were mostly on the
front right side of the Alza.

[16] Meanwhile, the Plaintiff' version of the accident was as per his
police report in Exhibit P6. The police report was lodged on 27.2.2019,
about 6 months after the accident. In P6, the Plaintiff stated that he was
riding a motorcycle bearing registration number WFL 7373 towards
Taiping when the car coming from the opposite direction overtook another
motorcycle in front of it and hit his motorcycle. The car was driven fast
and encroached into his lane and he could not remember the number of the
other motorcycle. The Plaintiff sustained severe injuries to his head and
right limbs and he fainted afterwards. He was taken to Taiping Hospital.
His right middle finger was amputated due to the accident.

B. On the issue of quantum

[17] The civil suit was to claim for the injuries that he suffered as stated
in the the medical report of the Emergency & Surgery Department of

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Taiping Hospital marked as P10, the Taiping Hospital medical report dated
19.11.2018 marked as P11, the clarification report of the Taiping Hospital
dated 21.11.2019 marked as P12, the medical report of Dato' Dr R
Gunasagran from Guna Plastic & Cosmetic Surgery, Guna Laser Centre
marked as P15 and the medical report of Dr T Moses from Orthopaedic
Specialist Sdn. Bhd. marked as P17. The major injuries which I have
summarised from the medical reports were:

i. a crush injury over right lower limb which resulted in a right

hemipelvectomy (amputation);

ii. avulsion fracture right olecranon (elbow) which resulted in it

becoming wobbly and totally unstable;

iii. right wrist dorsiflexion and palmar flexion losing its flexibility
to 0- 30 degrees (normal is 0-90 degrees);

iv. close fracture right hand 4 th and 5 th metacarpals, open fracture

proximal phalanx right index and middle fingers which resulted
in 1) the right middle finger being amputated, 2) the right
index, ring and little fingers becoming fixed in a clawed
position with no movement at all;

v. shortening of the right ulna by 1 cm;

vi. multiple scars over the right limbs which were extensive and
permanent; and

vii. degloving injury over right elbow.

[18] The medical report P17 concluded that-

i. the right lower limb had been amputated at the pelvis. The right
hemi-pelvis and sacral ala have been amputated. Together with
this amputation, the right sacral nerves would also have been
excised. Thus, he would not be able to have normal control of
the anal sphincter and the colostomy for the diversion of faeces

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will be permnent;

ii. an ulcer at the amputated stump due to retained suture material.

This should be explored and removed so that the ulcer can heal.
Surgery in the private sector will cost RM4,000.00;

iii. prosthesis for the right lower limb would have to be assessed
and fitted by a prosthetist/orthotist;

iv. the patient was right hand dominant and the right hand had no
function at all;

v. the right ulna had been shortened by 1 cm and the right radius
was dislocated out of the right elbow joint;

vi. the right index, ring and little fingers had become fixed in a
clawed position with no movement at all;

viii. he should undergo surgery to fuse the right elbow joint in

extension to stabilise the right elbow joint and allow the right
thumb to pinch the right index finger. With this, he would be
able to stand on the left foot and hop with the aid of a walking
frame being held with both hands. Surgery in the private sector
will cost RM40,000.00; and

vi. in his present state, he is dependent on another person to push

his wheelchair. If the right elbow is fused in flexion he will
never be able to assist in holding a walking frame and he will
never be able to walk and he will have to learn to write and eat
with the left hand.

[19] As can be seen in the medical reports, the injuries suffered were
horrifying and mostly permanent in nature. Some of the injuries on the
right upper limb could still be treated with surgery and improve his right
hand function to at least enable the Plaintiff to hold a walking frame
properly with both hands, be able to walk and do personal chores such as
cleaning, eating and preparing food for himself (as this was later explained

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by rehabilitation experts). Hence, the claims were very important to enable
the Plaintiff to be able to return to his normal life in some aspects at least
if not all. lt was elicited that the Plaintiff did not have a valid licence to
ride a mtotrcycle. He did not have money to obtain a licence. He told the
court that he stopped schooling early and worked at the age of 14 so that
he would have an income. He had been working as a general worker in
Kuala Sepetang only for a week and earned RM30.00 per day prior to the
accident. According to the Plaintiff, his girlfriend had since left him after
the accident. The motorcycle was borrowed from his friend and it did not
have a valid roadtax and insurance. The Plaintiff was basically not covered
to ride the motorcycle.

[20] Coming back to the accident, the Plaintiff was adamant that the 1 st
Defendant's had encroached into his lawful path thereby causing the
accident. At that point of time, both vehicle distance to each other were
already too close to avoid the accident despite his efforts to swerve to the
left side of the road. The motorcycle grazed the right front side of the
motorcar and the Plaintiff lost control of the motorcycle. The motorcycle
lurched forward in its lawful path marked as A3A4 in the sketch plan
(Exhibit P1). He had then pressed on the brakes which left a long scratch
mark on the road from D to D1 as marked in P1. The motorcycle ended at
the point marked as N on the side of the road.

[21] The 1 st Defendant stood his ground in cross-examination that it was

the Plaintiff who had suddenly encroached into his rightful path marked as
A4A5 in P1 when its lamp not lit at all. This unexpected action caused the
1 st Defendant to turn his steering to the right side of his path in an effort
to avoid the motorcycle. However, he too failed and the motorcycle
crashed into the right front door of his car.

[22] The evidence of the Investigation Officer, Sjn. RF 100997 Baskaran

A/L Francis (SP1) was that the accident was caused by the motorcar
encroaching into the path of the Plaintiff when the 1 st Defendant overtook
another motorcycle in front of his car at that time. The 1 st Defendant was
summoned under Rule 10 of the Road Traffic Rules 1959 (LN 166/59)

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which provides "No driver of a vehicle moving along a road shall sleep or
otherwise neglect to exercise due control over the movements of the
vehicle". The 1 st Defendant did not admit liability by paying the fine but
eventually he paid it on 24.9.2019 only because he was asked by the police
to do so. This became a point of contention by the parties and I will
elaborate on this issue later.

[23] SP1 gave evidence on 13.5.2020 and 24.6.2020 where his witness
statements were filed on the day of trial (PSSP1). Some bundles of
documents were still being filed on that day by the Plaintiff's solicitors. In
paragraphs 19 and 20 of the SCJ’s grounds of judgment, she made special
mention of the late filing of witness statements and bundles of documents
to be referred to during trial. However, the Plaintiff tried to justify the
delay that was due to the implementation of the Movement Control Order
2020. SP1 went to the scene of the accident at 9.25 pm with police
photographer Kpl RF 170441 Mazwan bin Amran (SP2) who took the
photographs in Exhibit P2(a) - (i) at pages 5-9 of Bundle A.

[24] SP1 confirmed that there was no street lighting at the stretch of road
at KM2 which was on the side of the road heading towards Taiping. There
was a JKR milestone about 100-200 metres from the accident site. The
signboard denoting the speed limit of 60km/hour was located on the side
of the road heading towards Kuala Sepetang. He had marked on the sketch
plan which he drew, the directions of both vehicles. This was important
because the 1 st Defendant's counsel in cross-examination suggested that
the sergeant had wrongly marked the directions of the vehicles, which SP1
denied vehemently. This point was also argued during the appeal before
me. SP1 confirmed there were glass fragments on the lane A3A4. No glass
fragments or brake marks were found on the lane A4A5. The road was wet
because of the occurrence of rising tide along the said road. SP1 further
confirmed that this caused rubbish to overflow onto both sides of the road
although he did not indicate the presence of rubbish in his sketch plan but
could be seen in P2(e). Most importantly, both the Plaintiff and 1 st
Defendant admitted to SP1 that their vehicle was travelling closer to the

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white dividing line to avoid the rubbish on the road.

[25] The damages to both vehicles can be seen in photographs marked as

P2(g)-(i) and (a)-(c) respectively. The front part of the motorcycle was
completely damaged. I gathered that it could not be sent to PUSPAKOM
for inspection to determine if the headlight was working at all. The
motorcar was also damaged mostly on the front right side and the driver's
door and glass screen were cracked. Therefore, based on his investigation
and silent evidence which were more consistent with the Plaintiff's police
report, SP1 concluded that the accident was caused by the motorcar
encroaching into the Plaintiff's lawful path.

EVALUATION AND FINDINGS OF THE COURT

A. On the issue of liability

[26] There were numerous grounds of appeal pleaded in the Memorandum

of Appeal (pages 15-30 of RRJ1) but during the hearing of the appeal the
parties submitted only on a few issues which actually covered the dispute
over the liability apportioned and quantum of·damages. So, we have 2
conflicting versions of how the accident happened , the markings on the
sketch plan was hotly contested by both parties , that the SCJ was confused
with the markings on the sketch plan and there was a complaint that the
SCJ did not allow an impeachment proceeding against the 1 st Defendant
and also whether the summons paid by the 1 st Defendant indicated his
liability at all. All these were summarised into 3 issues for the Court to
decide as follows:

i. directions of travel of the parties;

ii. whether the 1 st Defendant encroached into path of the Plaintiff;

and

iii. whether there was contributory negligence on the part of the

Plaintiff.

[27] It is trite law that the burden of proof in an action for negligence lies

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with the plaintiff: Ng Chui Sia v. Maimon Bt Ali [1983] 1 MLJ 110. The
duty of the court is to determine which version is more inherently probable
based on available evidence: Noorianti bte Zainol Abidin & Ors v. Tang
Lei Nge [1990] 2 MLJ 242.

[28] I have perused the SCJ's 88 pages of grounds of judgment (RRT,

Encl 13) to see whether the complaints raised were substantiated. It is
necessary at this point to reproduce parts of the SCJ's grounds of judgment
in paragraphs 118 - 128 (pages 61 - 69 of RRT, Encl. 13) as she had made
findings of fact based on the evidence available as follows:

"[118] lmpak pergeseran motosikal WEL7373 boleh mengesankan

Plaintif yang hilang kawalan pengendalian motosikalnya yang
berkemungkinan terlajak ke hadapan akibat ditunggang melebihi had
laju atau brek yang rosak sebahagian gagal memberhentikan
motosikal di tandaan 'X' mahupun di tandaan 'D' walaupun brek
motosikal didakwa ditekan di tandaan 'D' di tengah laluan A3A4.
Brek motosikal yang gagal berfungsi memberhentikan motosikalnya
meninggalkan kesan terseret hingga melelong ke tandaan 'D1'
sebelum jatuh terhenti di tandaan 'N' di kawasan berumput A1A2.

[119] Apa yang jelas ialah kesan serpihan kaca di laluan A3A4
adalah kesan pecahan kaca lampu hadapan motokar PJL2007,
berkemungkinan selepas berlaku pertembungan di tandaan X.
Keterangan senyap ini juga berkebarangkalian menunjukkan motokar
PJL2007 yang dirempuh oleh motosikal di X meninggalkan kesan
serpihan 'CK' selepas tandaan D kerana respon Defendan Pertama
yang memutar stering ke kanan melepasi ke laluan A3A4 selepas
pertembungan di X dan kemudiannya kembali masuk ke laluan A4A5
untuk memberhentikan motokarnya di tandaan 'Y' [A6A7].

[120] Berdasarkan percanggahan keterangan-keterangan SP1,

kredibiliti SP1 tercabar oleh peguam Defendan -defendan
memandangkan percanggahan keterangan SP1 adalah menjurus
kepada aspek material kes di hadapan Mahkamah iaitu berkenaan

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bagaimana kemalangan itu berkemungkinan terjadi. Dalam hal ini,
Mahkamah merujuk kepada kes Gunalan Ramachandran & Ors v. PP
[2006] 2 MLJ 197; [2006] 1 CLJ 857; [2006] 2 AMR 465 di mana
Mahkamah Persekutuan memutuskan bahawa:-

"What need to be considered is whether the discrepancies relate to

material aspects of the case or otherwise. As stated in Sarkar on
Evidence 15th edn. p. 112:

Minor discrepancies are possible even in the version of truthful

witnesses and such minor discrepancies only add to the
truthfulness of their evidence (Sidhan v. State of Kerala [1986]
Cri LJ 470, 473 (Ker)). But discrepancies in the statements of
witnesses on material points should not be lightly passed over,
as they seriously affect the value of their testimony(Brij Lal v.
Kunwar, 36 A 187:18 CWN 649: A 1914 PC 38). The main
thing to be seen is whether the inconsistencies go to the root of
the matter or pertain to insignificant as pects there of... "

[121] Dalam keadaan ini, sekali lagi perkara ini tidak dapat
menentukan dengan mutlak bagaimana kemalangan ini berlaku, iaitu
sama ada Plaintif meluru masuk dan melanggar motokar Defendan -
defendan tersebut secara tiba-tiba atau Defendan Pertama yang
menceroboh masuk ke laluan sah motosikal WEL7373 yang
ditunggang oleh Plaintif di laluan A3A4.

[122] Seterusnya, Mahkamah akan menilai keterangan Defendan -

defendan dalam kes ini. Defendan Pertama (SD2) memberi
keterangan bahawa beliau memandu motokar PJL2007 semasa
kemalangan pada 19.08.2018 di KM2 Jalan Kuala Sepetang -Taiping.
Menurut SD2, Plaintif secara tiba-tiba menerjah masuk ke laluan
A4A5 dan motosikal tidak memasang lampu hadapannya lalu
merempuh pada bahagian hadapan sisi kanan motokar PJL2007 di
laluan A4A5 [tandaan X atas P1 dibuat oleh Plaintif].

[123] Menurut keterangan Defendan-defendan, pada hari kejadian,

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mereka adalah pengguna jalan yang baru pertama kali menggunakan
laluan menuju ke Kuala Sepetang untuk makan mee udang. Apabila
tiba di KM2, keadaan jalan tidak diterangi lampu jalan dan tiba -tiba
sebuah motosikal datang menerjah dari arah bertentangan di hadapan
motokar PJL2007 yang dipandu oleh Defendan Pertama. Defendan
Pertama tidak sempat menekan brek dan hanya sempat memutar
stering ke kanan bagi mengelakkan pertembungan tetapi tidak
berjaya. Motokar PJL2007 dihentikan dan diparkir di bahu jalan di
kedudukan 'Y' di kiri laluannya [di A6A7].

[124] Setelah saksi di pihak Plaintif dan Defendan -defendan selesai

memberi keterangan, Mahkamah tidak berpuas hati bahawa
kemalangan ini adalah berpunca daripada kecuaian pihak Defendan
Pertama semata-mata, berdasarkan perkara berikut -

(1) lmpak dan kesan kerosakan pada sisi kanan kedua -dua
kenderaan tidak menyokong pengataan oleh Plaintif. Eksibit P2 (b)
jelas membuktikan pertembungan tidak berlaku secara berhadapan
kerana motokar dilanggar pada bahagian di sisi kanan hadapan
motokar PJL2007 yang rosak teruk dan ada kesan darah dalam
eksibit P2 (c).

(2) Keterangan foto P2(c) adalah keterangan prima facie bahawa

impak hentaman oleh motosikal WEL7373 adalah tertumpu di
bahagian sebelah sisi kanan motokar yang dipandu oleh Defendan
Pertama.

(3) Motokar PJL2007 yang masuk ke laluan sebelah kanan yang

bertentangan arah selepas bertembung di tandaan X tidak
menghalang laluan motosikal yang telah terlantun semula di laluan
A3A4 lalu terlajak ke hadapan dan ke atas P1 berdasarkan lakaran
SP1 yang melukiskan kesan brek D-D1 adalah ke arah atas P1 (hala
ke Taiping).

(4) Dalam kes ini terdapat kesan calar yang ditandakan sebagai 'D
'oleh SP1 dalam P1 sebagai tandaan permulaan kesan brek motosikal

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yang ditunggang oleh Plaintif yang mengaku mengelak ke kiri dan
berada di tengah laluan A3A4. SP1 mengatakan kesan itu adalah
kesan calar brek semasa motosikal WEL7373 telah bertembung
dengan motokar PJL2007 tetapi berdasarkan akuan Plaintif ialah
motosikal bertembung dengan motokar di tandaan X. Selain daripada
kesan brek yang dibuat oleh motosikal Plaintif yang ditandakan 'D'
di tengah laluan A3A4, kesemua serpihan kaca yang ditandakan 'CK'
atas P1 juga berada di laluan Plaintif yang menghala ke arah Taiping.

(5) Walaupun SP1 melukiskan kesan brek oleh motosikal yang

ditunggang oleh Plaintif didapati bermula di tengah laluan A3A4
tetapi motosikal WEL7373 tidak diberhentikan [di tandaan D atau X]
sebaliknya motosikal WEL7373 telah terlajak/ teranjak ke hadapan di
laluan A3A4 dengan melelong /terbabas ke kiri sebelum terhenti di
tandaan D1 atas A1A2. Kesan brek D ke D1 ialah satu bukti senyap
bahawa brek motosikal WEL7373 tidak berfungsi dengan baik
(secara keseluruhan / sebahagian) atau penunggang telah
menunggang dengan kelajuan yang tinggi dan gagal membuat
kawalan yang baik akibat tercedera pada anggota sebelah kanan
semasa merempuh bahagian kanan motokar di laluan A4A5.

(6) Sebaliknya SP1 mendakwa punca kemalangan adalah berpunca

daripada kecuaian motokar PJL2007 yang terbabit memotong satu
motosikal lain hingga memasuki laluan bertentangan walaupun
pengataan Plaintif adalah tidak disokong oleh mana -mana
keterangan. SP1 telah merakam pengataan bahawa semasa
kemalangan, lampu motosikal tidak dinyalakan atau gagal berfungsi
dan motosikal yang sebenarnya masuk dahulu ke laluan bertentangan
yang mencipta satu keadaan yang mencemaskan secara melulu lalu
merempuh pada bahagian kanan motokar PJL2007.

(7) Justeru Saman yang diisu oleh penolong pegawai penyiasat IPD
Trafik Taiping itu telah secara silap dikenakan terhadap Defendan
Pertama. Walaupun saman menurut Kaedah 10 Peraturan Lalulintas
Trafik 1959 LN166/59 itu boleh dianggap sebagai asas untuk

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dipersalahkan atas tort kecuaian yang mencetus kepada
pertembungan kedua-dua kenderaan dalam kemalangan, liabiliti yang
akan diagihkan kepada Plaintif boleh melebihi 50% disebabkan,
antara lain, kecuaian yang disumbangkan di pihak Plaintif yang gagal
memastikan kenderaan yang ditunggangnya berada dalam keadaan
yang layak berada atas jalan raya [road worthiness], brek kenderaan
disenggarakan serta boleh diguna dalam keadaan kecemasan, Plaintif
juga gagal memastikan kenderaan ada cukai jalan dan dilindung
polisi insurans yang sah sebelum dia meminjam motosikal itu dan dia
sendiri adalah seorang yang berkompeten serta ada lesen yang sah
untuk menunggang kenderaan atas jalan.

(8) Dalam kes ini, tingkah laku Plaintif yang menunggang

kenderaan bermotor tanpa lesen yang sah dan tidak dilindungi oleh
polisi insurans semasa berlaku kemalangan itu, bukan sahaja
tindakan yang menyalahi undang- undang tetapi satu bentuk kecuaian
yang disumbangkan oleh Plaintif. SP1 tidak isu saman kepada
Plaintif yang jelas menunggang motosikal tanpa lesen yang sah.

(9) Larangan dalam s. 26(1) Akta Pengangkutan Jalan 1987 [Akta

333] memperuntukkan bahawa tidak ada yang dibenarkan memandu
kenderaan bermotor di jalan raya kecuali dia mempunyai lesen yang
sah. Sesiapa yang tidak mempunyai lesen tidak boleh memandu
kenderaan bermotor. Dalam kes ini, Plaintif sama sekali tidak
mempunyai lesen memandu yang sah untuk memandu atau
menunggang di jalan raya.

(10) Peruntukan s. 90 Akta 333, seseorang mesti mempunyai polisi

insurans yang sah untuk melindungi dia semasa dia memandu atau
menunggang kenderaan bermotor di jalan raya. Oleh kerana
seseorang yang membahayakan dirinya atau orang lain kerana
ketiadaan lesen memandu yang sah untuk memandu atau menunggang
di jalan raya, tidak seharusnya dia berada di jalan raya. la adalah
polisi awam seperti yang dicerminkan oleh maksud Parlimen dalam
s. 26 dan s. 90 Akta 333. Tingkah laku menunggang kenderaan

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bermotor tanpa lesen yang sah itu sendiri merupakan tindakan yang
menyalahi undang-undang [ lihat perenggan 3 dalam kes Muhammad
Noor Redzuan bin Misran v. Muhammad Amirul Hafiz bin
Khairulazuin [2020] 10 MLJ 238].

(11) Untuk membenarkan Plaintif meletakkan beban kecuaian 100%

ditanggung oleh Defendan-defendan adalah bersamaan memberi
penghargaan kepada Plaintif kerana tidak mematuhi undang -undang,
atau lebih buruk lagi untuk memberi ganjaran kepadanya atas
pelanggaran undang- undang walaupun Plaintif menimbulkan suatu
keadaan yang bahaya bagi dirinya sendiri dan lebih penting, kepada
pengguna jalan raya lain yang mematuhi undang-undang. Undang-
undang tidak dapat melindungi orang yang tidak mengambil kira
undang-undang dan polisi awam yang berusaha mengatur
pengendalian lalu lintas dan pengangkutan di jalan raya.

(12) Dalam kes ini, pemunya berdaftar motosikal WEL7373

langsung tidak dipanggil oleh SP1 untuk mengesahkan motosikal
WEL7373 dijamin dalam keadaan yang membenarkan ianya berada
atas jalan [road worthiness], elok dan dijaga rapi. SP1 gagal
memanggil pemunya berdaftar motosikal untuk hadir memberi
keterangan, sama ada motosikalnya yang tidak ada cukai jalan yang
sah, adalah satu motosikal yang rosak atau dirosakkan, sama ada
sebahagian atau keseluruhan atau layak untuk digunakan atas jalan
[fit for the purpose].

(13) Di dalam keadaan kemalangan yang berlaku di waktu malam,

penunggang motosikal adalah bertanggungan dari segi liabiliti
kerana menunggang motosikal dengan membahayakan diri serta
pengguna jalan yang lain, tanpa menyalakan lampu hadapan atau
membawa motosikal dengan lampu hadapan yang rosak atau brek
yang tidak berfungsi dengan baik juga tidak membenarkan
pengawalan/pengendalian dengan baik adalah satu lagi kesalahan
trafik yang lain yang mengundang tanggungan liab iliti.

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(14) [Rujuk kes : Mohd Shahril bin Abdul Rahman v. Ahmad
Zulfendi bin Anuar [2021] 12 MLJ 36 berkait kes Plaintif yang
menunggang tanpa lesen yang sah].

(15) Kesimpulan hujah bertulis peguam Defendan-defendan bahawa

Plaintif dengan sendiri telah menjadi punca kemalangan pada
19.8.2018 menimpa dirinya dengan tanggungan sumbang cuai 80%
manakala Defendan-defendan telah cuai setakat 20% dalam
menyebabkan kemalangan dalam kes ini.

Kesimpulannya:

[125] Keterangan senyap yang mungkin boleh membantu untuk

membuat satu dapatan, yang tinggal adalah berdasarkan kerosakan
kepada kedua-dua kenderaan, yang berkebarangkalian menyokong
versi dalam laporan polis oleh Defendan Pertama bertarikh
19.08.2018, adalah kesan kerosakan motosikal WEL7373 yang
tertumpu di bahagian hadapan adalah selari dengan impak hentaman
oleh motosikal di sisi kanan motokar PJL2007.

[126] Penelitian terhadap rajah kasar bersama -sama dengan

keterangan berkecuali lain seperti gambar-gambar dan kerosakan-
kerosakan kepada. kenderaan-kenderaan yang terlibat dalam
kemalangan itu, Mahkamah memutuskan versi yang lebih
berkemungkinan ialah versi dalam laporan polis oleh Defendan
Pertama yang dibuat beberapa jam selepas kemalangan pada
19.08.2018 jam 11.01 malam [lihat D7].

[127] Di pihak Defendan Pertama sebagai pemandu di jalan raya

yang mempunyai kewajipan untuk sentiasa berjaga -jaga pada
keseluruhan masa kerana jalan raya awam adalah tempat bahaya di
mana tidak seorang pun patut tidak berhati-hati hanya kerana fakta
bahawa ia adalah jalan yang sunyi atau pada masa lalu lintas adalah
rendah. Dalam kes Kha/run Nizad bin Daud & Anor v. Juprin Paul
[2018] 9 MLJ 32 di m.s. 38, Pesuruh jaya Kehakiman (pada masa itu)
memutuskan bahawa –

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"[[32] I am in agreement that there is always a duty on road users to
remain vigilant at all times as public roads are always a venue for
danger, whichever time of the day or location, where one can never
be entitled to take it easy and be off -guard because it is a quiet
stretch of roads or a time of the day where traffic volume is low.

[33] There is sometimes also a stubborn attitude of some drivers to

consider that when they have right of way, the road is 'theirs' where
any little interruption or interference with their 'right of way' would
be subject to annoyance, irritation and a tendency to 'hold their
ground' and not give way as it is their 'legal' right of way. They will
have sufficient presence of mind and time to sound their horn,
gestureor otherwise indicate to the person offending against their
right of way, but not to slow down or yield — which in the matter of
a second or two, would have been sufficient to cause the incident to
come to pass.."

[128] Setelah meneliti segala keterangan -keterangan yang

dikemukakan dalam kes ini, Mahkamah mempertimbangkan, atas
imbangan kebarangkalian, bahawa Plaintif gagal membuktikan
kecuaian adalah semata-mata di pihak Defendan-defendan sebagai
punca yang menyebabkan pertembungan kedua-dua kenderaan dalam
kemalangan yang berlaku pada 19.08.2018. Mahkamah mendapati
Defendan-defendan berliabiliti 20% cuai ·sebagai penyebab
kemalangan ini dan liabiliti yang lebih diagihkan kepada Plaintif
adalah 80% penyumbang cuai sebagai pencetus kemalangan yang
menimpanya pada 19.08.2018 itu.".

[29] Having gone through the grounds of judgment and comparing it with
the Notes of Evidence, I did not find that the SCJ was confused by the
markings on the sketch plan as alleged by the Plaintiff. The directions
drawn by SP1 on the skecth plan were also correct. I am mostly in
agreement with the SCJ's findings and reasonings in regard to the liability
of the Plaintiff and that he was contributorily negligent. It was the
apportionment of liability which I did not agree. The SCJ found that the

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1st Defendant's version was more probable and he had lodged a police
report about 2 hours after the accident. The 1st Defendant admitted that
due to the impact of the collision, his car had gone into the lane A3A4
in his efforts to avoid the motorcycle. She also found that SP1's evidence
could not support the Plaintiff’s version of events. She cited a case law
that there were bound to be minor discrepancies and then she said the
minor discrepancies in the Plaintiff’s case could not determine who
encroached into whose path first (see paragrpah 121).

[30] The SCJ had also stated that she did not consider SP1 to be a witness
who had lied in court and she had accepted his evidence in so far as it was
consistent with the silent evidence. In paragraphs 106 - 109, I found that
the SCJ had considered why it was unneccesary to impeach SP1 and I
agreed with her findings as follows:

[106] Dengan mengambil kira keterangan SP1 dan SP2 yang

memberl keterangan bersumpah dan telah diperiksa balas oleh
peguam Defendan-defendan, saya menerima keterangan SP1 dan SP2
setakat mana keterangan mereka adalah selari dengan keterangan
senyap mengenai kerosakan kepada kedua-dua kenderaan, kesan brek
atas jalan dan laporan polis kedua-dua pihak, bagi menilaikan segala
keterangan pihak-pihak berkait siapa yang menyebabkan berlakunya
kemalangan pada waktu malam jam 9 di KM2 Jalan Kuala Sepetang-
Taiping pada 19.08.2018 itu dan memutuskan versi pihak mana yang
lebih berkebarangkalian.

[107] Ini adalah kerana sesuatu keterangan yang dikemukakan oleh

SP1 yang tidak selari atau berat sebelah atau tidak benar sekali pun,
tidak mewajarkan keseluruhan keterangan SP1 ditolak kecuali dalam
beberapa keadaan dan satu contoh adalah cabaran kepada
kewibawaan kesaksian (impeachment) terhadap SP1. Jika cabaran
(impeachment) ini berjaya, keseluruhan keterangan SP1 lazimnya
dibuang atau diketepikan oleh Mahkamah. Dalam keadaan itu pun,
jika ada keterangan kesan brek, serpihan kaca atas jalan dan kesan
kerosakan kepada kedua-dua kenderaan dalam kes ini yang boleh

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[2023] 1 LNS 2189 Legal Network Series
diterima bagi menentukan liabiliti pihak -pihak, Mahkamah akan
mengambilkira keterangan kesan brek, serpihan kaca atas jalan dan
kesan kerosakan kepada kedua-dua kenderaan dalam kes ini yang
boleh dipercayai itu.

[108] Prinsip penerimaan keterangan lain dalam keadaan seseorang

saksi berbohong (saya tidak putuskan sedemikian dalam kes ini)
digariskan oleh kes KHOON CHYE HIN V. PUBLIC PROSECUTOR
[1961] 1 MIJ 105, at 107-

"If a witness demonstrably tells lies on one or two points then

it is clear that he is not a reliable witness and as a matter of
prudence the rest of his evidence must be scrutinised with great
care and indeed with suspicion. To say, however, that because
a witness has been proved a liar on one or two points then the
whole of his evidence "must in law be rejected" is to go too far
and is wrong. "

[109] Dalam kes ini, saya dapati apa yang dikatakan pembohongan
ialah kesilapan memahami soalan dan memberi jawapan kepada
soalan yang telah disalah tafsirkan. Oleh yang demikian, saya
berpandangan bahawa SP1 tidak berbohong tetapi jawapannya tidak
tepat kepada soalan yang ditanya.".

[31] However, I found that despite accepting the evidence of SP1, the SCJ
stated his evidence did not support the Plaintiff's version of events, i.e.
how the accident happened. It was clear then that she accepted that the 1 st
Defendant had encroached into the Plaintiff's lawful path but due to his
"negligence" (for want of a better word) in riding without a licence and
uninsured to ride etc., therefore she concluded that the Plaintiff was 80%
liable. At the same time she had stated that the Defendants should have
been more careful driving in those condition that night and commented
that they were unfamiliar with the place. This is where I found that the
SCJ had contradicted herself and was "plainly wrong" in coming to the
conclusion that she did. In my view, the 1st Defendant made a wrong

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judgment call when he swerved right into the path of the Plaintiff when he
should have swerved to the left and avoided the motorcycle altogether. He
most likely had been caught off guard when he suddenly saw the
Plaintiff’s motorcycle in the dark of the night. Meanwhile, the Plaintiff
was also wrong to have been riding his motorcycle almost near the white
divider line where he should have anticipated his actions may endanger the
driver of any vehicle on the opposite side of the white line.

[32] In paragraph 124 (1)-(15), the SCJ stated why she could not find the
Defendants to be 100% liable and she attributed 80% liability to the
Plaintiff because he mostly contributed towards the accident when he was
not licenced to ride a motorcycle, the motorcycle was not covered by
insurance and it did not have a roadtax, he endangered himself and others
when he rode the motorcycle without the headlight on and he was
negligent for not ensuring its the roadworthiness. The owner of the
motorcycle was also not called to testify on its roadworthiness. The SCJ

[33] I have referred to the case laws cited by the SCJ which all were at
the High Court level and the appellate court found against the uninsured
rider. For instance, in Muhammad Noor Redzuan Bin Misran v. Muhammad
Amirul Hafiz Bin Khairulazuin [2020] 10 MLJ 238, the investigating
officer found that the appellant was without a valid driving licence or road
tax or covering insurance when he rode the motorcycle. The High Court
dismissed the appeal.

[34] However, this Court is inclined to follow and agrees with the
decision of the learned High Court Judge in Siti Rohani Bte Mohd Shah &
Ors v. Haji Zainal Bin Saifiee & Ors [2001] 5 MLJ 8 where it was held
that-

"3) It is very clear that riding or driving without a valid licence

per se is not negligent. Rather, it is the manner of the riding or
driving and/or conduct on or in relation to the road that
contribute to the cause of a motor accident or collision. The fact
that the first appellant was riding the motorcycle without a valid

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driving licence, without a safety helmet and even with a pillion rider,
could not and did not enter into the cause of the collision. The fact
of the matter was that on the balance of probabilities, the first
appellant did not cause or contribute to the cause of the accident.
Also, the first appellant did not contribute to her injuries as she did
not sustain any head injuries, and the wearing of a safety helmet
would not have reduced her injuries.".

[Emphasis added]

[35] The Court also applied the principle in the case of Goh Beng Seng v.
Doi bin Dolah [1970] 2 MLJ 95 where Sharma J stated:

"There can be no territorial or geometrical division of the road. The

centre line remains a guide and a reminder only. One's duty is to
ensure safety for oneself and for others. The attitude of mind that
because the driver coming from the opposite direction is
encroaching a few inches of my side of the road, I can treat him
as a trespasser and proceed on my half of the .road as if it was
my exclusive domain and that I am totally immune from liability
if I drive within the exact limits of that 'realm' even though I
know that an accident may thereby happen on my side of the
road, is the attitude of an irresponsible and an irrational being. I
owe a duty to others on the road just as others owe a duty to me. ”

[Emphasis added]

[36] In deciding whether the 1 st Defendant had encroached into path of

the Plaintiff and liability to be apportioned, the Court found it to be in the
affirmative as he admitted it too and based on the glass fragments on the
road in A3A4. If the 1 st Defendant's claim that the Plaintiff encroached
into his path first was true, then X would have more likely been lower than
where he marked it on the sketch plan. They would have both been very
near to the middle of the road, the Plaintiff hit the car and his motorcycle
was dragged to X which the Plaintiff marked ie where most of the glass
fragments were and then the motorcycle was pushed/skidded from D to

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[2023] 1 LNS 2189 Legal Network Series
D1. The 1 st Defendant submitted the car was coming from top to bottom
(of the sketch plan) but the Plaintiff should be dragged to the bottom and
not to the top at N. But this Court found it was probable, due to the glass
fragments being mostly at X, the point of impact was there on the
Plaintiff's side of the road. The 2 nd Defendant did not see the impact when
it happened, so her evidence was not reliable. In the Privy Council case of
Yahaya Bin Mohamad v. Chin Tuan Nam [1975] 2 MLJ 117, it was held
that when there is conflicting evidence, then the Court will have to rely on
the other evidence i.e. silent evidence.

[37] On the issue of contributory negligence of the Plaintiff, he admitted

he had been riding near the middle of the road to avoid the rubbish.
Judging from the impact of the collision on both vehicles, as seen in the
photographs, this Court opined that both of them must have been going
faster than the 60 km/hour speed limit. The Plaintiff claimed he was riding
at 50 km/hour and the 1 st Defendant between 60-70 km/hour. Despite the
finding by the SCJ that the motorcycle did not have its headlight on, I was
of the view this was unlikely because the area was very dark. They should
have sent the motorcycle to PUSPAKOM as the inspection could have
gleaned some information to help the Plaintiff's case. The owner was also
not called to testify. This had considerably weakened the Plaintiff's case to
obtain 100% compensation. Moreover, being about 17 years old and not
having a licence, he was not tested / qualified to ride a motorcycle
although he claimed that he knew the road rules very well. He may have
been careless in that sense the way he chose to ride almost in the middle
of the road to avoid the rubbish rather than riding slowly at the nearside of
the road to keep himself away from oncoming traffic. But as stated by the
learned High Court Judge in Siti Rohani Bte Mohd Shah's Case, in Chu
Kim Sing & Anor v. Abdul Razak bin Amin [1999] 6 MLJ 433 the rider
succeeded in his claim, even though he was without a valid licence. The
High Court Judge continued:

"Now to answer Miss Lai, the law of course does not sanction a
person without a valid licence to be riding or driving a vehicle on the

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[2023] 1 LNS 2189 Legal Network Series
road. But that person is not, as would seem to have been suggested
by Miss Lai, fair game, with no rights. He is still entitled to the
same duty of care expected of to be accorded to all on and
adjacent to the road. For it is an underlying principle of the law
of the highway that all must show mutual respect and
forbearance (see Searle v. Wallbank [1947] AC 341 at p 361). The
only remedy, or penalty if you like, is that prescribed in the RTA.
The remedy is not an actionable wrong.".

[Emphasis added]

[38] Therefore, while I agree with the SCJ's decision that the Plaintiff
was also liable, I would revise the Plaintiff's liability to 40 % and the
Defendants' to 60%. The silent evidence were clear that the glass
fragments were on the Plaintiff's side of the road and the 1 st Defendant had
negligently encroached into his lawful path.

B. On the issue of quantum

[39] The witnesses were the Plaintiff, SP1, SP4, SP3 (the Plaintiff's
grandfather who cared for him), SP5 (medical evidence), SP6 (the
Plaintiff's employer), SP8 (rehabilitation expert) and SP9 (prosthetist and
orthotist specialist). On the Defendants side, the witnesses were SD1
(rehabilitation expert), SD2 (prosthetist and orthotist specialist), S D3
(nurse). I had also revised some of the quantum awarded by the SCJ based
on acceptable principles when I found there were omission9s) or mistake(
s).

[40] The crux of the Plaintiff's complaint against the quantum was
because the SCJ did not award the Genium prosthetic leg costing about
RM4 million and for 2 future surgeries that were necessary for the
Plaintiff to undergo. From my understanding of the medical evidence in
this case, a crush injury on the lower right limb of the Plaintiff resulted in
it being unable to be saved and it had to be amputated. Therefore, the
impact of the collision must have been very forceful and this would likely
to have been due to the high speed of one or both vehicles prior to the

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[2023] 1 LNS 2189 Legal Network Series
accident. Looking at the extent of damages of both vehicles in photographs
P2, the silent evidence was compelling in that both of them must have
been doing more than 60 km/hour at that time. The Plaintiff was "crushed"
by the car at the front right part and his blood could be seen on the car in
photograph P2(c). The extensive impact was seen in photograph P2(d). If
both were not going fast, the impact with the car's right front side would
have thrown the Plaintiff on the road but the injuries might not have been
as severe.

[41] In the case of Laksamana Realty sdn Bhd [2005] 4 CLJ 871, the court
there referred to Tan Kuan Yau v. Suhindrimani Angasamy [1985] 1 CLJ
429 where the Federal Court held:

"The principle that could 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 purposes of assessment some
irrelevant considerations. If the court is satisfied or convinced that
the Judge has acted upon wrong principles of law then it is justified
in reversing; indeed it is its duty to reverse the finding of the trial
Judge."

[Emphasis added]

[42] The SCJ in her grounds of judgment in paragraphs 129 onwards

discussed the issue of quantum where she stated that she agreed with the
medical opinion in Exhibit D41 of SD1, Dr. Mohd. lzmi Bin Ahmad@
Ibrahim, who was the rehabilitation expert from Hospital Rehabilitasi
Cheras. It was submitted that the quantum of damages awarded to the
Plaintiff was on the lower side. Upon perusal of her grounds of judgment,

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I found that the SCJ had taken the correct approach in dealing with the
issue of quantum and compensation as well as applied the right case laws
and also guided by the 2018 Revised Compendium of Personal Injuries.
The SCJ had also followed current trends as decided by other courts of
coordinate jurisdiction and the superior courts. To say that she had not
given adequate reasons for the awards in respect of the injuries would be
wrong. Based on her assessment of the evidence, this Court agreed with
most of the findings of the SCJ on the issue of quantum. However, I had
revised some of the awards where I found the quantum were not given due
to some omission or mistake.

[43] For instance, the SCJ did not allow for costs of stoma bags which
SP8 stated in her oral evidence as being necessary for the Plaintiff (pages
170-172 of the Notes of Evidence). Coming back to P17, the medical
report stated that "the right lower limb had been amputated at the pelvis.
The right hemi-pelvis and sacral ala have been amputated. Together with
this amputation, the right sacral nerves would also have been excised.
Thus, he would not be able to have normal control of the anal
sphincter and the colostomy for the diversion of faeces will be
permanent.". The SCJ may not have properly appreciated this fact. The
Plaintiff also had given evidence on this and the estimate for a supply of
41 years was RM531,360.00. He needed a better quality stoma bag to
avoid leakages. Therefore, although the Defendants submitted that this had
not been pleaded, nevertheless, this item is a life -long necessity for the
Plaintiff as he would not be able to empty his bowels like before.

[44] It is not unreasonable for the courts to accept oral testimony to

support such expenses claimed: Nurul Husna Muhammad Hafiz & Anor v.
Kerajaan Malaysia & Ors [2015] 1 CLJ 825. In the case of Nur Syarafina
bt Sa'ari v. Kerajaan Malaysia & Ors [2019] 12 MLJ 741, the High Court
allowed some special damages where the plaintiff did not produce receipts
and stated:

"(1) It was unrealistic to expect a claimant to collect and file all bills
and receipts with a view to bringing a claim. As long as there was

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oral testimony to support the expense and the expense could be
reasonably expected to be incurred due to the circumstances of the
case, the courts have allowed the claim for special damages (see para
24).".

[45] Moving on to other issues, regarding the decision of the SCJ in not
granting the award for future surgeries, the Court was guided by the
principles in the case of Chai Yee Chong v. Lew Thai [2004] 2 CLJ 321
where the Federal Court held:

"To summarise my view on the issue, every person has a right to

seek medical treatment at a hospital of his choice be it at a
government hospital or at a private hospital. But when it comes to
awarding damages for such treatment, if the treatment is sought at a
government hospital, the full amount expended and paid by the
person should be awarded. But, if he seeks treatment at a private
hospital, he has to prove, first that he is justified to seek treatment at
a private hospital and, secondly, the amount incurred is reasonable.
Regarding the first hurdle that he has to cross:

(a) He must prove that that particular treatment is not

available at the government hospital either due to the
unavailability of the necessary equipment or qualified
doctors or other sufficient reasons; or

(b) He must prove that though the treatment is available at a

general hospital, it is not available within a reasonable
period considering the urgency of the treatment. This may
be due to the congestion at the government hospital or for
other sufficient reasons; or

(c) He must prove that that the treatment at the government

hospital though available, is grossly inadequate. This may
be due to lack of trained doctors in that particular field or
for some other good reasons. As pointed out by RK
Nathan JC in Chong Chee Kong (supra) with whom I

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agree, we are concerned with treatment, not
accommodation.".

[46] From the evidence available, the Court found that the 2 surgeries
would be available at government hospitals and therefore, did not award
the RM40,000.00 and RM4,000.00 prayed for (the costs of the surgeries in
private hospitals as estimated by Dr. Moses).

[47] I have drawn up a table to show the awards made by the SCJ and this
Court's own decision and therefore do not wish to comment on each of the
awards. Suffice a few examples here to demonstrate the extent of
consideration given by the SCJ, such as in paragraph 135 where she had
stated:

"[135] lsu berbangkit bagi item (m) - kos memperoleh anggota

tiruan:

(1) Sebelum memberikan keputusan yang adil, pertimbangan yang

wajar serta penilaian yang betul hendaklah dibuat berdasarkan
pandangan pakar untuk memastikan bahawa persoalan telah
terjawab dengan sepatutnya bagi memperoleh gantian anggota
tiruan kaki palsu yang fungsi dan sifat [character] adalah
bersesuaian dengan hal keadaan Plaintif. Menurut pandangan
pakar, Dr. lzmi berpandangan bahawa kaki palsu iaitu
'Ottobock C-leg 4 Microprocessor controlled prosthetic knees'
yang dicadangkan oleh CPO Santosh Kumar Prasad adalah
tidak disarankan untuk diguna pakai oleh Plaintif yang dinilai
sebagai K1-K2 Mobility level. Menurut Dr lzmi, untuk
memberikan keselesaan dan kestabilan yang akhirnya
memaksimumkan potensi mobiliti Plaintif, dia lebih sesuai
dipakaikan dengan 'modular prosthetic hip joint' yang direka
bentuk untuk dipasang secara harmoni dengan komponen
Ottobock yang direka suai padan dengan pengguna kategori
'hemipelvectomy' dengan gred mobility K1 -K2 seperti Plaintif.

(1) Bagi maksud itu juga, merujuk kepada alasan sebagaimana

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yang diputuskan dalam kes Lechemanavasagar S Karuppiah v.
Dr Thomas Yau Pak Chenk & Anor [2008] 3 CLJ; [2008] 1
AMR 833 yang menyebut bahawa "Memang tidak dapat
dinafikan bahawa seseorang itu berhak untuk mendapatkan
sesuatu yang pada asalnya pernah dinikmatinya, iaitu sepasang
kaki yang sempurna dan paling kurang adalah yang terdekat
kepada keadaan asal, iaitu dengan mendapatkan gantian kaki
palsu.' Namun pada masa yang sama bukan isu kos yang perlu
dijadikan perbandingan. Apa yang sewajarnya adalah fungsi
dan sifat/character kaki palsu yang hendak dibenarkan adalah
bersesuaian dan padan dengan hal keadaan Plaintif.

(2) Dalam kes ini, saya bersetuju dengan apa yang dijelaskan oleh
Dr lzmi bahawa yang terbaik kepada Plaintif yang
dikategorikan 'hemipelvectomy' dengan gred mobiliti K1,
selain memberikan keselesaan, ialah kestabilan yang akhirnya
memaksimumkan potensi mobiliti Plaintif.

(3) Sehubungan dengan itu, saya mendapati berdasarkan

keterangan pakar-pakar, kedua-dua kaki palsu dengan sebut
harga yang jauh berbeza dari segi nilainya itu sebenarnya
berupaya berperanan membantu Plaintif dalam melakukan
pergerakan yang sewajarnya. Tetapi, yang lebih sesuai dengan
keadaan Plaintif ialah 'modular hip joints' dengan komponen
lutut yang bersesuaian dengan keupayaan Plaintif yang
dikategorikan 'hemipelvectomy' dengan gred mobiliti K1 -
K2.Saya juga bersetuju bahawa tahap kognitif Plaintif, yang
berlatar belakangkan tahap pendidikan Darjah 6 dan kurang
pemahaman modul dalam Bahasa lnggeris, bagi menguasai
kawalan dan penjagaan peranti berkait anggota tiruan itu dan
dari segi komitmen pemakaian kaki palsu juga perlu diambil
kira, bagi memastikan kaki palsu yang hendak dibenarkan itu
memaksimumkan potensi mobiliti Plaintif.".

[48] I had read the Notes of Evidence and noted in page 152 (Encl. 15)

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although counsel for the Plaintiff insisted that the Plaintiff would be
suitable for the bionic leg as he had a K3 mobility, that he was quite active
and could hop up the stairs, SD1 did not agree and gave his reasons. SD1
'caught' them when counsel stated the Plaintiff would need a portable
motorised wheelchair because he would not be able to walk long distance
even with the Genium leg. SD1 stated the Plaintiff would not to be
needing it if his claim for the Genium leg was allowed. Moreover, in order
to be able to use a motorised wheelchair, his abode must be in a suitable
for the movement of the wheelchair as otherwise there was no point
getting it. The surrounding environment (including outdoor) where the
Plaintiff would be spending most of his time would also be a factor to
consider.

[49] Overall, I found that SD1 's evidence and SPB complemented each
other, except in regard to medication needed and the choice of some
medical and household equipment which SD1 explained why those were
unneccasry. Therefore, I agreed with the SCJ's findings that S D1 's
evidence was the most reliable and useful guidance for the Court in
determining which solution would be viable for the Plaintiff when
compared with SP8 and SP9.

[50] On the correctness of the SCJ's decision not to allow an award for
the Genium prosthetic leg, this Court agreed with her rationale and the
following Court of Appeal case of Chua Kay Hock & Anor v. Lee Hoon
Poi [2022] 6 MLJ 88 where it was stated:

"[40] In our considered view, it was not erroneous or baseless for

the LJC to hold that if a bionic prosthesis were to be allowed
together with loss of future earnings, it would unreasonably set a
precedent for all plaintiffs in similar circumstances to claim for a
bionic prosthesis instead of a medium, reasonably -priced
hydraulic prosthesis leg. It would be fair for us to observe that
the much more reasonably priced mechanical prosthesis had for
generations been awarded as compensation for amputation cases.
As highlighted by the respondent to us and taken into account by

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the LJC, the hydraulic leg is used widely in the public
service/government sector and known to be popular in Malaysia
over the years. More importantly, the sophisticated state of the
art bionic leg is not widely used in the country and known to lack
facilities for after-sales service or repair if it breaks down.
Additionally, it is trite principle that a plaintiff seeking
compensatory damages is required to mitigate his loss and is entitled
only to reasonable compensation and not exorbitant awards save on
grounds of necessity in exceptional circumstances when a reasonable
alternative is wholly unavailable or inappropriate. There must be
sufficient justification shown by the victim for the award of
compensation for well above the trend of contemporary awards.

[46] Premised on the foregoing grounds, we would conclude that the

appellant had failed to demonstrate to us that the LJC had failed to
judicially appreciate the totality of the evidence or correctly apply
the principles applicable to award to damages in negligence actions
for personal injuries and related losses. In our considered view and
judgment, the LJC had not arrived at a decision that was erroneous in
principle or fact to warrant appellate interference in this instance as
relevant considerations and factors had been taken into account in
arriving at the said decision.

[47] We, therefore, hold that this appeal is clearly devoid of merits,
and baseless in law and fact. Accordingly, we dismiss this appeal
and affirm the decision of the LJC. As the appellant was an accident
victim who had suffered serious injuries, we exercised our discretion
to order the parties to bear their own costs despite the appellant
having lost this appeal.".

[Emphasis added]

[51] Still on the issue of the prosthetic leg, it was submitted by the
Plaintiff that SD2 was not present to examine him and take his
measurements, and therefore their quotation was false. I have considered

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the evidence of SD1 and SD3 and found that this allegation was baseless.
Other issues raised on quantum were that the SCJ did not provide any
reason why she gave an award of RM60,000.00 for nursing care 5 years, ie
from 2018 - 2023. The Defendants submitted that the Plaintiff's
grandfather agreed there was no loss for him to care for him. In my view,
RM60,000.00 for 5 years for nursing care is an appropriate amount to
compensate the care-givers (including his sister and uncle) for their full-
time care of the Plaintiff's needs.

[52] The other issue was that the award for loss of earning capacity was
not pleaded. There was evidence from SP6 that the Plaintiff had worked
for him only recently prior to the accident and that he would not be able to
continue the employment due to the Plaintiff's physical disability. Again,
the SCJ had covered this in the grounds of judgment as follows:

"[134] lsu berbangkit mengenai item (g) berkait 'loss of earning

capacity':

(4) Pertimbangan oleh Mahkamah Agung dalam kes Yang Yap Fong
& Anor. V. Leong Pek Hoon & Anor. [1987] 1 CLJ 377; [1987] CLJ
(Rep) 419, berkait pemerhatian Y.A Syed Agil Barakbah SCJ
bahawa:

"The proper test to be applied is whether some time in the future,

due to the effect of the injuries sustained by him, the plaintiff will
face a substantial risk of either losing his job or getting a less paid
employment. It does not matter whether the plaintiff was in
employment or not at the time of the trial so long as Court is
satisfied from evidence that there is a real or substantial risk that
his earning capacity will be affected in the future."

[Emphasis added]

[53] Here is the comparison table of the awards that I have complied for
ease of reference:

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GANTI RUGI AM
BIL BUTIRAN KECEDERAAN AWARD KEPUTUSAN
MAHKAMAH MAHKAMAH
SESYEN TINGGI

1. Brain traumatic injury (acute RM25,000.00 RM25,000.00

right frontoparietal subdural
bleed)

2. Laceration wound over RM7,000.00 RM7,000.00

exposed right humerus

3. Avulsion fracture of right RM28,000.00 RM31,500.00

olecranon dengan proximal
RM31,500.00 –
ulna loss of 4cm of bone and
ambil kira
4cm non-union, right ulna
kecederaan siku
shorter by 1cm, right radius
dan sekitar siku.
was dislocated out of right
Dipotong 10%
elbow join untuk item (b) &
pertindihan.
(c) ditolak 10% pertindihan

4. Close fracture right hand 4th RM12,000.00 RM12,000.00

and 5th metacarpals (with
disabilities and right hand
has no function at all)

5. Open fracture, proximal RM25,000.00 RM25,000.00

phalanx right index and
middle fingers

6. Laceration wound over right RM10,000.00 RM10,000.00

inguinal extending to
perineum and scrotum

7. Open fracture right superior RM40,000.00 RM40,000.00

and inferior pubic rami

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8. Crush injury of right lower RM110,000.00 RM110,000.00
limb (ended up with right
hemipelvectomy)

9. Scars (right arm two 1cm RM20,000.00 RM20,000.00

external fixator pin site
scars;

right forearm 1cm external

fixator pin site scar; right
elbow medial epicondyle 1cm
and 2cm circular scars;

right elbow to forearm 'Y'

shaped scar with each limb
measuring 4c, 4cm and 5cm;
right forearm mid-potion
14x11cm skin graft scar;
rlght side of pelvis stump

19x16cm skin graft scar.

There is a 2cm ulcer in this
scar;

left thigh 20x25cm skin graft

harvest scar

10. Skin graft RM20,000.00 RM20,000.00

11. Muscle wasting RM5,000.00 RM5,000.00

(for items (i), (i) & (k) less

10%

12. Pain and suffering RM10,000.00 RM100,000.00

TOTAL RM304,000.00 RM405,500.00

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GANTI RUGI KHAS
BUTIRAN AWARD KEPUTUSA
MAHKAMAH N
SESYEN MAHKAMA
H TINGGI

a. Dokumen polis RM129.00 RM129.00

b. Laporan JPJ -Dengan persetujuan

pihak-pihak
c. Laporan Perubatan Hospital
Taiping

d. Kerosakkan Pakaian dan Jam RM200.00 RM100.00

e. Makanan Berzat RM200.00 RM200.00

f. Perjalanan Ulang Alik dari RM50.00 x 39 RM1,950.00

Kuala Sepetang ke Hospital
=RM1950
Taiping menziarah plaintif

g. Loss of earning capacity RM86,400.00 RM86,400.0

selepas kemalangan 0
- ambil kira
keterangan majikan
(SP6), plaintif tidak
berupaya melakukan
pekerjaan yang
memerlukan tenaga
dan pergerakkan
fizikal yang kuat

- dikira sebagai loss

of

future earning
capacity

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h. Laporan Pakar RM970.00 RM970.00

i. Kos Pembedahan Masa RM5,000.00 RM5,000.00

hadapan

j. Kos penyediaan Sebut Harga RM3,000.00 RM3,000.00

Prosthetik, Pusat Anggota
Tiruan Central Sdn Bhd

k. Pakar Guna Plastik & RM1,000.00 RM1,000.00

Cosmetic Surgery

l. Kos pembedahan 'ulcer over - Termasuk dalam -

right hemipelvectomy scar' pengiraan kos
yang dijangkakan pembedahan masa
hadapan

m. Kos memperoleh kaki palsu RM221,586.00 bagi RM221,586.

keseluruhan kos - 00
n. Kos custom made elbow
pertim bangan
orthosis pada kadar iaitu
diberikan berdasarkan
RM1950.00 yang akan ditukar (RM193,012.
kepada fungsi kaki
setiap 2 tahun dalam tempoh 00 +
palsu tersebut -
31 kali berjumlah RM28,574.0
komponen Ottobock
RM60,450.00 0)
sesuai dengan
o. Kos custom made elbow kategori plaintif iaitu
orthosis pada kadar 'hemipelvectomy'
RM1550.00 yang akan ditukar dengan gred mobility
setiap 2 tahun dalam tempoh K1-K2
62 kali berjumlah -Ottoback lebih
RM96,100.00 selesa, stabil dan
memaksimakan
potensi mobility
plaintif

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[2023] 1 LNS 2189 Legal Network Series
-ambil kira tahap
kognitif plaintif

-Duit untuk
dimasukkan ke
Amanah Raya.

p. Kos jagaan pada kadar RM1000.00 x 12 x 5 RM60,000.0

RM2,500.00 sebulan 0
=RM60,000.00

q. Kos urin bowl' pada RM11.00 1 month

sebungkus yang diguna pakai supply
dari tarikh kemalangan hingga
RM1,080.00
kini.
x 12

months

=
RM12,960.0
0

Multiply by
41 years

RM531,360.
00

r. Kerusi Roda RM1,500.00 RM1,500.00

TOTAL RM376,836.00 RM913,195.

0O

LAIN-LAIN PERKARA
BUTIRAN AWARD KEPUTUSA
MAHKAMAH N
MAHKAMA

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SESYEN H TINGGI

a. Kos ubat ubatan Tidak dibenarkan Government

hospital to
supply

b. Gantirugi khas disalurkan Dibenarkan To the

melalui amanah raya berhad sebahagian iaitu Plaintiff's
kepadaplaintif/perayu sebanyak solicitors
RM38,602.40 client
account

[54] Compensation must be fair, reasonable and adequate but not

excessive: Yang Salbiah & Anor v. Jamil Bin Harun [1981] 1 MLJ 292;
lnas Faiqah Mohd Helmi (a child suing through her father and next
friend: Mohd Helmi Abdul Aziz v. Kerajaan Malaysia & Ors [2016] 2 CLJ
885; Wong Li Fatt William (an infant) v. Haidawati Binti Boihen & Anor
[1994] 2 MLJ 497. The Court has taken into consideration of both parties'
submissions and perused the grounds of judgment of the SCJ and
concluded that the total amount below was fair, reasonable and adequate to
compensate the Plaintiff for his injuries, losses and future expenses:

i. General damages awarded RM405,500.00

ii. Special damages awarded RM913,195.00

iii. Total damages awarded RM1,318,695.00.

[55] During a clarification session on 3.10.2023, the following was

ordered:

(a) interest on general damages at the rate of 5% per annum from

the date of filing of the Writ on until the date of judgment on
23.8.2023;

(b) interest on special damages at the rate of 2.5% per annum from

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the date of the incident until the date of judgment today
23.8.2023; and

(c) interest on the judgment sum at the rate of 5% per annum from
date of judgment until full settlement.

CONCLUSION

[56] Premised upon the above consideration, the Court found that 1s
appellate intervention was justified and accordingly varied the decision
and quantum awarded by the learned SCJ. The appeal in Case No. 4
against liability and quantum was allowed partly with costs of
RM10,000.00 (to cover the costs here and below). The appeal in Case No.
6 against quantum and liability was dismissed with no order as to costs.

Dated: 31 OCTOBER 2023

(NOOR RUWENA MD NURDIN)

Judicial Commissioner
High Court of Malaya, Taiping

Counsel:

For the appellant - Shuroma Guha Thakurta & Mak Xher Vin; M/s Manjit
& Co., Bukit Mertajam

For the respondent - Reneka Devi Sivalingam & Mohd Amin Segu
Alavudin; M/s. Arnold Andrew & Co., lpoh

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