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IN THE HIGH COURT OF MALAYA AT SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA

[CIVIL APPEAL NO: BA-12B-203-12/2017]

BETWEEN

ALWEE ALYWIN BIN AZLIM

(NRIC No.: 901002-08-6281) … APPELLANT

AND

MUHAMMAD SHAHID BIN MOHD. TOHA

(NRIC No.: 901020-10-5423) … RESPONDENT

JUDGMENT
(appeal to High Court against Sessions Court’s decision after trial)

A. Background

[1] I will refer to the parties in this case as they are in the Sessions
Court (SC).

[2] On 23.7.2012, the plaintiff (Plaintiff) rode a motorcycle on the

motorcycles lane along the Federal Highway (from Petaling Jaya
to Shah Alam) when he met with an accident (Accident) which
involved a motorcycle ridden by the defendant (Defendant).

B. Proceedings in SC

[3] The Plaintiff filed this suit in SC against the Defendant (This
Action) and claimed damages for the alleged negligence of the

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Defendant in the Accident which had caused personal injuries to

the Plaintiff and damage to the Plaintiff’s motorcycle [Damage
(Plaintiff’s Motorcycle)].

[4] The Defendant denied he was negligent in respect of the

Accident and instead alleged that the Plaintiff’s own negligence
had caused the Accident.

[5] At the trial of This Action -

(1) the Plaintiff gave evidence and called Sergeant Zaitun Bt.
Husin, the police officer who investigated the Accident
(IO), to testify in this case; and

(2) the Defendant was the only witness in his defence.

[6] After the trial of This Action, the SC decided as follows, among
others (SC’s Decision):

(1) the Defendant is 80% liable in negligence for the Accident

while the Plaintiff is 20% liable regarding the Accident;

(2) assuming the Defendant is 100% liable in negligence for

the Accident, the following sums of damages, among
others, are awarded to the Plaintiff (Damages Award) -

(a) general damages as follows -

(i) loss of consciousness - RM5,000.00;

(ii) head injury with punctuate hemorrhage -

RM40,000.00;

(iii) lung contusion with pneumothorax -

RM6,000.00;

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(iv) for C1-C2 cervical spine subluxation, the

sealed judgment of the SC (Sealed Judgment)
stated a sum of RM27,000.00 but the Grounds
of Judgment (GOJ) of the learned Sessions
Court Judge (SCJ) awarded a sum of
RM30,000.00 for this injury;

(v) regarding multiple facial bone fracture, the

Sealed Judgment stated an amount of
RM12,000.00. The GOJ however stated that the
SC had awarded RM15,000.00 for multiple
facial bone fracture;

(vi) soft tissue injuries - RM3,500.00;

(vii) close right galeazzi fracture - RM13,000.00;

(viii) multiple scars and multiple laceration -

RM8,000.00; and

(ix) muscle wasting - RM1,5000.00; and

(b) special damages (not disputed in this appeal); and

(3) interest on general and special damages as well as costs of

This Action were awarded to the Plaintiff.

C. This appeal

[7] The Defendant has appealed to this court against SC’s Decision
regarding -

(1) the Defendant’s 80% liability in negligence for the

Accident; and

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(2) the quantum of general damages for which the Defendant

is liable to the Plaintiff.

[8] This appeal raises the following questions:

(1) did the learned SCJ make a “plain error of fact” by

deciding that the Defendant’s motorcycle had overtaken
the Plaintiff’s motorcycle and had hit the Plaintiff’s
motorcycle from behind?;

(2) whether the SC had committed the following errors of law -

(a) when the learned SCJ failed to draw an adverse

inference against the Plaintiff under s. 114(g) of the
Evidence Act 1950 (EA) for not adducing any
evidence regarding the Damage (Plaintiff’s
Motorcycle); and

(b) the SC had not considered whether the Plaintiff had

discharged his legal and evidential burden under ss.
101 and 102 EA respectively to prove on a balance of
probabilities that the Defendant had committed the
tort of negligence regarding the Accident and was
80% liable thereof; and

(3) is there any ground for appellate intervention regarding the

Damages Award?

D. Whether SC had made a “plain error of fact”

[9] In paragraph 1.2 (Part C) GOJ, the learned SCJ made the
following finding of fact (SC’s Factual Finding):

“1.2 Dari keterangan yang ada adalah didapati

Defendan membawa motorsikalnya di belakang

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motorsikal Plaintif dan sudah tentulah pandangannya

seharusnya ke hadapan motorsikal. Defendan juga telah
menunggang dengan kelajuan 60 km/sejam dalam laluan
motorsikal. Ini diakui sendiri oleh Defendan juga dalam
keterangannya di Mahkamah. Defendan telah memotong
motorsikal Plaintif dalam tindakannya ini kerana mahu
keluar dari laluan motorsikal hendak masuk ke Subang
Jaya melalui susur keluar dari laluan motorsikal 100
meter di hadapan beliau. Selepas Defendan melepasi
motorsikal Plaintif, cermin di sisi motorsikal Plaintif
telah terkena motorsikal Defendan yang menyeba bkan
Defendan terjatuh ke bahu jalan sebelah kiri. ”

(emphasis added).

According to SC’s Factual Finding, the Defendant’s motorcycle

overtook the Plaintiff’s motorcycle and this had caused the side
mirror of the Plaintiff’s motorcycle to hit the Defendant’s
motorcycle (which then caused the Defendant to fall on the road
shoulder on the left hand side of the Defendant).

[10] It is trite law that an appellate court should not intervene

regarding a trial court’s findings of fact, especially findings
regarding credibility of witnesses, unless there is a “plain error
of fact” by the trial court which has caused an injustice and
which warrants appellate intervention - please see the judgment
of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case
of Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ
309, at 317-321.

[11] I am of the view that SC’s Factual Finding is plainly wrong

(SC’s Plain Factual Error) because -

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(1) although answer no. 2 in the Plaintiff’s witness statement

alleged that the Defendant’s motorcycle had crashed into
the Plaintiff’s motorcycle from the rear, the Plaintiff had
admitted during cross-examination [Plaintiff’s Admission
(Cross-Examination)] as follows -

(a) before the Accident, the Plaintiff’s motorcycle

changed lane and tried to overtake a motorcycle (not
the Defendant’s motorcycle) (Another Motorcycle);
and

(b) the Plaintiff was not successful in overtaking

Another Motorcycle. Instead, the Plaintiff’s
motorcycle hit the Defendant’s motorcycle which
was on the right hand side of the Plaintiff’s
motorcycle.

The following notes of proceedings (NOP) regarding the

cross-examination of the Plaintiff, support the Plaintiff’s
Admission (Cross-Examination) -

(i) at page 17 NOP, Supplementary Record of Appeal -

“[Defence counsel]: Kalau kamu betul lihat di

belakang tiada motor di belakang dan kamu ubah
haluan kemalangan ini tidak akan berlaku betul?

[Plaintiff]: Sepatutnya begitu.

[Defence counsel]: Apa yang sebenarnya berlaku

adalah kamu tidak lihat ke belakang dan ke tepi
dengan betul sebelum kamu membuat keputusan
untuk memotong. Setuju atau tidak?

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[Plaintiff]: Saya boleh bercakap yang saya salah

buat pertimbangan untuk menukar haluan.

[Defence counsel]: Kerana kamu tidak sedar ada

satu motor di tepi kamu. Betul tak? Kerosakan pada
motor kamu di hadapan. Betul?

[Plaintiff]: Ya.

[Defence counsel]: Kerosakan motor di defendan

pun di hadapan. Kamu dengar polis cakap tadi.

[Plaintiff]: Ya.

[Defence counsel]: Bila kerosakan kedua-dua

motosikal di hadapan ini dengan jelas menunjukkan
kamu tidak melihat motosikal. Kerosakan tidak
boleh tipu. Tidak boleh bohong. Jadi kerosakan
adalah keterangan paling kukuh di mahkamah.
Kamu setuju dengan saya ada motosikal di tepi
kamu yang kamu tidak lihat dan kamu telah pergi
langgar. Setuju?

[Plaintiff]: Saya setuju macam keputusan saya tadi.

Saya salah buat pertimbangan.”

(emphasis added);

(ii) at page 18 NOP -

“[Defence counsel]: Kamu memotong satu motor.

Betul?

[Plaintiff]: Ya.

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[Defence counsel]: Kemudian kamu bergesel

dengan satu motor lagi di kanan. Betul?

[Plaintiff]: Ya.

[Defence counsel]: Ertinya kamu di tengah-tengah

kan?

[Plaintiff]: Sebab saya salah buat pertimbangan

untuk menukar haluan.

[Defence counsel]: Itu betul. Soalan saya a dalah

kamu berada di tengah-tengah. Betul?

[Plaintiff]: Betul.”

(emphasis added);

(iii) at page 19 NOP -

“[Defence counsel]: Kamu sudah keluar. Betul?

[Plaintiff]: Saya cuba memotong tetapi tidak dapat

memotong.

[Defence counsel]: Tadi kamu kata kamu salah buat

pertimbangan?

[Plaintiff]: Saya cuba untuk memotong.

[Defence counsel]: Kamu cuba untuk memotong

motosikal di hadapan. Betul?

[Plaintiff]: Ya.

[Defence counsel]: Tetapi kamu tidak potong?

[Plaintiff]: Ya.

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[Defence counsel]: Jadi kamu berada di belakang

motosikal yang di hadapan kamu itu semasa
kemalangan? Yang tiada nombor itu?

[Plaintiff]: Ya.

[Defence counsel]: Jadi bagaimana kemalangan ini

berlaku?

[Plaintiff]: Saya salah buat pertimbangan menukar

haluan untuk memotong.

[Defence counsel]: Jadi kemalangan ini adalah

kesilapan kamu?

[Plaintiff]: Ya.”

(emphasis added); and

(iv) at page 20 NOP -

“[Defence counsel]: Kesilapan macam mana?

[Plaintiff]: Untuk menukar haluan.

[Defence counsel]: Jadi kamu sekarang setuju yang

kamu cuai dan kamu punca kemalangan ini. Betul?

[Plaintiff]: Ya.”

(emphasis added);

(2) I reproduce the relevant part of the Plaintiff’s re-

examination by his learned counsel at page 21 NOP -

“[Plaintiff’s counsel]: Tadi kamu ada kata kamu

setuju yang kamu cuai dan menyebabkan
kemalangan itu berlaku. Kenapa kamu cakap yang

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kamu cuai sedangkan kamu cakap kamu tidak cuba

untuk tukar haluan atau memotong kenderaan
tersebut?

[Plaintiff]: Macam saya cakap tadi saya ingat

pertimbangan saya betul sebab saya sudah periksa
cermin pandang belakang untuk menukar haluan
untuk memotong. Sebab itu saya kata sedemikian.

[Plaintiff’s counsel]: Sebab itu kamu kata kamu

cuailah?

[Plaintiff]: Ya.”

(emphasis added).

Firstly, the above two questions [2 Questions

(Reexamination)] asked by the Plaintiff’s learned counsel
during re-examination are “leading questions” as defined
in s. 141 EA. By reason of s. 142(1) EA, the Defendant’s
learned counsel could have lawfully objected to the 2
Questions (Reexamination). Sections 141 and 142 EA
provide as follows -

“Leading questions.

141 Any question suggesting the answer which the

person putting it wishes or expects to receive or
suggesting disputed facts as to which the witness is
to testify, is called a leading question.

When leading questions may not be asked.

142(1) Leading questions may not, if objected to

by the adverse party, be asked in an examination-in-

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chief or in a re-examination, except with the

permission of the court.

(2) The court shall permit leading questions as to

matters which are introductory or undisputed, or
which have in its opinion been already sufficiently
proved.”

(emphasis added).

I am of the view that the Plaintiff’s answers during his re-

examination does not diminish the weight to be attached to
the Plaintiff’s Admission (Cross-Examination);

(3) the Plaintiff had given a police statement to the IO. The IO
testified at page 7 NOP that the Plaintiff had informed the
IO that the Plaintiff had tried to overtake Another
Motorcycle;

(4) the Plaintiff made his police report on 8.8.2012, 16 days

after the Accident (23.7.2012). Contrary to the Plaintiff’s
Admission (Cross-Examination), the Plaintiff’s police
report did not state that the Plaintiff changed his lane
because he attempted to overtake Another Motorcycle.
This omission in the Plaintiff’s police report shows that
the Plaintiff is not a credible witness; and

(5) the Defendant gave evidence in examination-in-chief (page

23 NOP) that his motorcycle had already overtaken the
Plaintiff’s motorcycle when the Plaintiff’s motorcycle
changed lane and encroached onto the Defendant’s lane
(which had caused the Accident). The Defendant’s veracity
was not shaken by the cross-examination of the Plaintiff’s
learned counsel (pages 24-26 NOP). Furthermore, the

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Defendant’s evidence is consistent with his police report

which is made on 24.7.2012, only a day after the Accident
(23.7.2012).

E. Should SC draw adverse inference against Plaintiff for not

disclosing Damage (Plaintiff’s Motorcycle)?

[12] In a road collision case, the nature and extent of damage to the
vehicles involved in the collision, is relevant. In San Cheong
Choy & Ors v. Yuson Bien [1963] 1 MLJ 235, at 236 and 237,
Hill JA in the Court of Appeal of the Federation of Malaya had
affirmed the judgment of Ismail Khan J (as he then was) as
follows:

“As Ismail Khan J. indicated the drivers and witnesses

told conflicting stories, but there was in evidence before
him numerous photographs, plans, some of which we re to
scale, and measurements which certainly appear to be
accurate. …

The trial judge reasoned that where, as in this case, the

drivers and witnesses on each side tell conflicting stories,
the photographs, plans and measurements of the scene,
and the nature of the damage to each vehicle must
provide the most reliable guide by which such evidence
can be tested. …

For myself after a careful study of the plans and

photographs I have come to the conclusion that they in
every way confirm the evidence of the respondent and I

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therefore respectfully agree with the findings of

negligence by the learned trial judge.”

(emphasis added).

[13] In this case, the Defendant’s motorcycle had been examined by

the IO. The IO had however testified at page 3 NOP that the
Plaintiff’s motorcycle was not made available by the Plaintiff
for the IO’s examination.

[14] An adverse inference may be drawn under s. 114(g) EA against a

party for suppressing material evidence - please see the
judgment of the Supreme Court delivered by Mohd. Azmi SCJ in
Munusamy v. Public Prosecutor [1987] 1 MLJ 492, at 494. In
this case, I am of the view that the learned SCJ has erred in law
when the SC has failed to make an adverse inference against the
Plaintiff for not making available his motorcycle to be examined
by the IO (1 st Legal Error). The 1 st Legal Error is premised on
the following reasons:

(1) the Damage (Plaintiff’s Motorcyle) is clearly relevant to

this suit;

(2) in this digital age, the Plaintiff could have easily taken
photographs of the Damage (Plaintiff’s Motorcyle) by
using his mobile phone or a mobile phone of his relative or
friend - please refer to Poon Weng San & Anor v.
Chandran A/L Narunan [2019] MLJU 1358, at [15(2)(a)];
and

(3) no explanation has been given by the Plaintiff on why he

has failed to adduce any evidence regarding the Damage
(Plaintiff’s Motorcyle).

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F. Had SC failed to consider burden of proof?

[15] Sections 101(1), (2) and 102 EA state as follows:

“Burden of proof

101(1) Whoever desires any court to give judgment as

to any legal right or liability, dependent on the existence
of facts which he asserts, must prove that those facts
exist.

(2) When a person is bound to prove the existence of

any fact, it is said that the burden of proof lies on that
person.

On whom burden of proof lies

102 The burden of proof in a suit or proceeding lies on

that person who would fail if no evidence at all were
given on either side.”

(emphasis added).

[16] Regarding ss. 101(1), (2) and 102 EA, it is decided in Lilies
Suraya Bt. Abdul Latib & Ors v. Khairul Bin Sabri & Ors [2019]
MLRHU 1226, at [17], as follows:

“[17] I am of the following view:

(1) the Plaintiffs have the legal burden under s. 101(1)

and (2) EA to prove on a balance of probabilities
that the Defendants are negligent regarding the
Incident (Legal Burden). This Legal Burden rests
on the Plaintiffs throughout the trial and does not
shift to the Defendants at any time - please refer to
Letchumanan Chettiar Alagappan;

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(2) the evidential burden pursuant to s. 102 EA

(Evidential Burden) lies on the Plaintiffs to adduce
evidence to prove a prima facie case of the
Defendants’ negligence with regard to the Incident
(Prima Facie Case). Regarding this Evidential
Burden -

(a) in the Singapore Court of Appeal case of

Britestone Pte Ltd v. Smith & Associates Far
East Ltd [2007] 4 SLR 855, at [60], VK Rajah
JCA held that a Prima Facie Case may be
established by a plaintiff adducing evidence
which is not “inherently incredible”; and

(b) once the Plaintiffs have proven a Prima Facie

Case, the Evidential Burden shifts to the
Defendants to adduce rebuttal evidence that the
Defendants have not been negligent in respect
of the Incident; and

(3) after a trial -

(a) the court has to decide whether there is

evidence on a balance of probabilities to prove
the Defendants’ negligence in the Incident. I
refer to the definitions of “proved” and
“disproved” in s. 3 EA as follows -

(b) if the Plaintiffs have adduced sufficient

evidence on a balance of probabilities to prove
that the Defendants have been negligent
regarding the Incident, the Plaintiffs have

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successfully discharged the Legal Burden and

Evidential Burden under s. 101 and 102 EA
respectively to prove their claim against the
Defendants; and

(c) if there is no adequate evidence to prove on a

balance of probabilities that the Defendants
have been negligent in the Incident, the
Plaintiffs have failed to discharge the Legal
Burden and Evidential Burden. Consequently,
the Original Action has to be dismissed on this
ground alone.”

(emphasis added).

[17] In this case, the GOJ did not address the question of whether the
Plaintiff had discharged his legal and evidential burden under ss.
101(1), (2) and 102 EA respectively to prove on a balance of
probabilities that the Defendant had committed the tort of
negligence regarding the Accident and was 80% liable thereof
(2 nd Legal Error).

G. Who was negligent regarding Accident?

[18] I am of the view that the Plaintiff’s Admission (Cross-

Examination) in itself is sufficient to prove that the Plaintiff is
100% liable in negligence for the Accident. This is because
before any motorist changes his or her lane, it is incumbent on
the motorist to ensure that it is safe for him or her to do so.

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H. Whether there should be appellate intervention in this case

[19] In view of SC’s Plain Factual Error, 1 st and 2 nd Legal Errors, it

is in the interest of justice for this court, sitting in its appellate
capacity, to set aside SC’s Decision regarding who is liable for
the Accident.

I. Damages Award

[20] I will now discuss the Defendant’s appeal against certain heads
of the Damages Award.

[21] Firstly, an appellate court generally does not intervene regarding

a trial court’s award of damages unless the following three
exceptions apply:

(1) the award of damages is “so extremely high” which

justifies appellate intervention - please see the judgment of
Azmi CJ (Malaya) (as he then was) in the Federal Court in
Topaiwah v. Salleh [1968] 1 MLJ 284, at 285;

(2) in the Federal Court case of United Plywood & Sawmill

Ltd v. Lock Ngan Loi [1970] 2 MLJ 237, at 238, Gill FJ (as
he then was) has decided that an appellate court may
intervene regarding a trial court’s award of damages if the
award is “so … inordinately high as to make the court
exclaim, “Good gracious, is that the sum which has been
awarded - that sum must be altered”, or if 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”; and

(3) the award of damages is not “fair and reasonable” as

explained by the Supreme Court’s judgment delivered by

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Syed Agil Barakbah SCJ in Ngooi Ku Siong & Anor v. Aidi

Abdullah [1985] 1 MLJ 30, at 32.

I(1). Plaintiff’s head injury with punctuate hemorrhage

[22] I find that the SC’s award of general damages of RM40,000.00

for the Plaintiff’s head injury with punctuate hemorrhage is “so
extremely high” or “so inordinately high”. This is because in Md
Faessal bin Mat Isa v. Jamilah bt Rejab & Anor [2013] 2 PIR
[17], the Sessions Court at Kangar only awarded RM20,000.00
for head injury (loss of consciousness, cerebral concussion,
cerebral odema, petechia haematoma). In Md Faessal, the
plaintiff had developed supraventricular tachycardia.

[23] The Plaintiff’s learned counsel had cited the following cases
before the learned SCJ -

(1) Mohd Shuhada bin Abdul Rashid @ Mamat v. Md Razali

bin Ismail & Anor [2013] 1 PIR [31]; and

(2) Mohamad Hanafi Muajir v. Gan Bee Choo & Anor [2012]
2 PIR [18].

[24] In Mohd Shuhada, the SC in Selayang granted RM55,000,00 as

general damages for mild head injury to the plaintiff which had
caused the him to suffer behavioral symptoms (increased
irritability, temper tantrums, easy fatigability, loss of drive and
initiative and impaired sleep pattern), cognitive deficit
(impairment of immediate recall, mild impairment of delayed
visual recall, some degree of impaired information processing
speed, impaired executive function and shortened attention span)
and subjective symptoms (headaches and vertigo). Clearly the
head injury sustained by the plaintiff in Mohd Shuhada is much
more serious than that suffered by the Plaintiff this case.

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[25] The SC in Shah Alam in Mohamad Hanafi Muajir awarded

general damages in a sum of RM40,000.00 for head injury
(subarachnoid hemorrhage with loss of consciousness and scalp
laceration with permanent residual disabilities). The head injury
suffered by the Plaintiff in this case is not as severe as that
sustained by the plaintiff in Mohamad Hanafi Muajir.

[26] Premised on Md Faessal and taking into account the ever

increasing cost of living, a “fair and reasonable” amount of
general damages for the Plaintiff’s head injury with punctuate
hemorrhage is RM25,000.00.

I(2). Plaintiff’s C1-C2 cervical spine subluxation

[27] As stated in the above sub-paragraph 6(2)(a)(iv), the Sealed

Judgment awarded a sum of RM27,000.00 for the Plaintiff’s C1-
C2 cervical spine subluxation but in the GOJ, the learned SCJ
granted a sum of RM30,000.00 for this injury.

[28] I am of the view that both sums of RM27,000.00 and

RM30,000.00 for the Plaintiff’s C1-C2 cervical spine
subluxation are “so extremely high” or “so inordinately high”.
This decision is premised on the following reasons:

(1) I accept the submission of the Defendant’s learned counsel

that the Plaintiff’s medical reports do not show that the
Plaintiff has suffered any disability arising from C1-C2
cervical spine subluxation; and

(2) in Abdul Shukor bin Abdul v. Mohamad Shawal bin Ahmad

Sabri & Anor [2013] 2 PIR [2], the Butterworth SC
awarded a sum of RM15,000.00 for a fracture of the L4
lumbar spine which had caused the plaintiff to suffer from
osteophytes visualised osteopenic bones due to disuse,

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limitation of the spinal flexion, reduced disc space at L2/3,

L3/4 and L4/5 and tenderness over the lumbar spine.
Clearly, the injury suffered by the plaintiff in Abdul
Shukor is worse than that sustained by the Plaintiff in this
case.

[29] Taking into consideration Abdul Shukor and higher cost of

living today, a sum of RM15,000.00 is “fair and reasonable” for
the Plaintiff’s C1-C2 cervical spine subluxation.

I(3). Plaintiff’s multiple facial bone fracture

[30] The Sealed Judgment stated that a sum of RM12,000.00 was

awarded by the SC for the Plaintiff’s multiple facial bone
fracture but in the GOJ, the learned SCJ however awarded an
amount of RM15,000.00 for this injury.

[31] Both sums of RM12,000.00 and RM15,000.00 for the Plaintiff’s

multiple facial bone fracture are “so extremely high” or “so
inordinately high”. This is because -

(1) there is no evidence that the Plaintiff has suffered any

disability arising from his multiple facial bone fracture; or

(2) there is no asymmetry or permanent disfigurement of the

Plaintiff’s face.

In view of the above reasons, I award a sum of RM10,000.00 as

a “fair and reasonable” sum of general damages for the
Plaintiff’s multiple facial bone fracture.

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I(4). Whether SC had erred in not giving a deduction regarding

overlapping awards

[32] I accept the contention by the Defendant’s learned counsel that

the learned SCJ has erred in law by not giving any deduction in
the total sum of general damages for overlapping awards
regarding injuries related to the same part or the same function
of the Plaintiff’s body. I refer to the following judgment of
Mohamed Azmi J (as he then was) in the High Court case of
Yasin bin Wahab v. Loo Kok Wai [1980] 2 MLJ 43, at 44:

“Adding the assessment of all these five injuries together,

a total sum of $25,000 is obtained. Since all the three
fractures and the loss of teeth are interconnected, there is
considerable overlapping in this case. A sum of $6,000
should therefore be deducted, leaving a figure of $19,000
which, I think, is fair and reasonable and not out of line
with most of the awards given for similar injuries. ”

(emphasis added).

[33] In view of the overlapping awards of general damages

(regarding injuries related to the same part or the same function
of the Plaintiff’s body) made by the learned SCJ in this case, a
10% deduction from the total award of general damages is “fair
and reasonable”.

J. Court’s decision

[34] Premised on the above evidence and reasons, I am constrained to

allow this appeal with the following order:

(1) SC’s Decision is set aside in its entirety;

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(2) the Plaintiff is liable 100% in negligence for the Accident;

(3) assuming that the Defendant is 100% liable in negligence

for the Accident, the Defendant’s appeal against the
Damages Award is allowed to the following extent only -

(a) general damages for head injury with punctuate

hemorrhage is reduced from RM40,000.00 to
RM25,000.00;

(b) general damages for C1-C2 cervical spine

subluxation is reduced to RM15,000.00;

(c) general damages for multiple facial bone fracture is

reduced to RM10,000.00; and

(d) there shall be a 10% deduction in the total sum of

general damages for overlapping awards; and

(4) costs of this appeal and the trial in SC shall be paid by the
Plaintiff to the Defendant.

(WONG KIAN KHEONG)

Judge
High Court of Malaya
Shah Alam, Selangor Darul Ehsan

Dated: 7 APRIL 2020

COUNSEL:

For the appellant - Kamalanathan Ratnam; M/s Vinod Kamalanathan

& Associates

For the respondent - Mani Maran Chellappan; M/s G Dorai & Co

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[2020] 1 LNS 308 Legal Network Series

Case(s) referred to:

Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309

San Cheong Choy & Ors v. Yuson Bien [1963] 1 MLJ 235

Munusamy v. Public Prosecutor [1987] 1 MLJ 492

Lilies Suraya Bt. Abdul Latib & Ors v. Khairul Bin Sabri & Ors
[2019] MLRHU 1226

Md Faessal bin Mat Isa v. Jamilah bt Rejab & Anor [2013] 2 PIR
[17]

Yasin bin Wahab v. Loo Kok Wai [1980] 2 MLJ 43

Legislation referred to:

Evidence Act 1950, ss. 101(1), (2), 101(1), (2), 102, 114(g)

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