[2007] 1 PIR [17] 109

1
Daminanto b Samin
v
Chong Siew Phin
5

Sessions Court, Kuching – Summons No 53-108-2004-III

Rhodzariah Bujang, scj

[17] Quantum – Lower limb – Tibia and fibula – Grade 3A compound fracture of
10 right tibia and fibula – Scars

Date of accident
October 22, 2001

Date of judgment
15
October 30, 2006

Brief description of plaintiff’s injuries

1. Grade 3A compound fracture of right tibia and fibula

20 Disabilities
1. Inability to stand for long periods and to play games
2. Muscle wasting
3. Possible development of osteoarthritis
4. Restricted movement of and pain over ankle
25 5. Scarring at site of fracture
6. Slight limp

Plaintiff’s age
( a) As at date of accident : NA
(b) As at date of hearing : NA
30

Plaintiff’s occupation
(a) As at date of accident : Hospital attendant
(b) As at date of hearing : Hospital attendant

35 Plaintiff’s earnings
(a) As at date of accident : NA
(b) As at date of hearing : NA

Liability
100% against defendant
40

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Award 1
1. General damages
(a) Grade 3A compound fracture of right tibia
and fibula (taking into account the plaintiff’s
residual injuries, loss of amenities and the fact 5
that the plaintiff had to undergo two wound
debridement procedures under general
anesthesia and was hospitalised for 22 days) – RM 50,000

(b) Scarring (at site of fracture) – RM 8,000

10

2. Special damages
(a) Agreed
(i) Cost of crutches – RM 70
(ii) Cost of implant – RM 1,360
(iii) Cost of medical report – RM 40 15
(iv) Cost of RIMV/JPJ search – RM 20
(b) Cost of future operation (for removal of
implant) – RM 4,000
(c) Nursing care (RM200 for the plaintiff’s
period of hospitalisation and RM100 20
per month for the plaintiff’s 3 months’
period of recuperation at home) – RM 500
(g) Personal effects damaged in accident – RM 200
(h) Travelling expenses
(RM50 per trip x 10 follow-up treatments) – RM 500
(i) Travelling expenses incurred by family 25
members for visits during plaintiff’s period
of hospitalisation (RM50 per trip x 22 days) – RM 1,100

Interest
(a) 8% per annum on general damages from date of summons until date of 30
full settlement.
(b) 4% per annum on special damages from date of accident until date of
judgment and thereafter at 8% per annum until date of full settlement.

Note
35
10% was deducted from the total general damages awarded, for
overlapping.

Cases referred to by the court

Govinda Raju & Anor v Laws [1966] 1 MLJ 188, HC
40
Mat Desa b Salleh v Ang Hock Lee & Anor [1979] 1 MLJ 241, HC
Mat Jusoh b Daud v Syarikat Jaya Seberang Takir Sdn Bhd [1982] 2 MLJ 71, HC

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 Daminanto b Samin v Chong Siew Phin
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1 Perianayagam, A & Anor v Yeo Suan Tin & Anor [1984] 1 MLJ 214, HC
Seah Yit Chen v Singapore Bus Service [1978] Ltd & Ors [1990] 3 MLJ 144,
HC, Sing
Taylor v Bristol Omnibus Co [1975] 2 All ER 1107, CA
5
Legislation referred to by the court
Highway Code, rule 18
Road Transport Rules 1959, rule 3(2)(b)

10 Solicitors
Khaira & Co for plaintiff
Tang & Partners for defendant

Rhodzariah Bujang, scj

15
The accident

[1] On October 22, 2001 at about 6.55 p.m. the plaintiff was riding his
motorcycle bearing registration number KN 5636Q along J alan Borneo Heights
20
when he was involved in a collision with the defendant who was driving
her car bearing registration number QKJ 4062. As a result of the accident
the plaintiff suffered a Grade 3A compound fracture of the right tibia and
fibula and was hospitalised from the date of the accident until his discharge
therefrom on November 12, 2001.

25 The liability

[2] The plaintiff’s version of how the collision occurred gathered from his
witness statement (exh P7) and his sworn testimony in court is this.

30 [3] He was on the way to Kota Padawan to fetch his sister from work and
on approaching the junction of Jalan Landeh, the defendant who was coming
from the opposite direction suddenly turned into [alan Landeh without giving
any warning or signal. The car collided against the middle portion of the right
hand side of his motorcycle and the impact threw him off his motorcycle. At
the material time he was travelling at 40 kmph. He could not have avoided
35
the accident, said the plaintiff because the accident happened so fast. The
defendant, he said, did not stop before turning and colliding with him and
actually gave him the impression that she was travelling straight since she
did not exhibit any intention of making that turn.

40 [4] The defendant’s evidence as contained in her witness statement (exh D1)
and testimony in court was that she stopped on her lane and gave her signal
to turn into Jalan Landeh when the plaintiff, travelling at 70 kmph encroached

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onto her side of the road and collided with the right hand side of her vehicle. 1
In cross-examination she also revealed that she had 2 of her children with
her at that material time but disagreed that they were distractions which
caused her not to pay attention to the road. I had in my notes of proceedings
recorded that she was taking an uncommonly long time to answer questions 5
put to her and even didn’t respond to certain questions such as whether she
saw any broken glass at the point marked “B” on the sketch plan (exh P5) or
whether the plaintiff was travelling on his own right of way.

[5] The plaintiff’s police report (exh P6) made on February 2, 2002
10
substantiated what he had testified in court. Likewise that of the defendant
except that she did not say that the plaintiff had encroached onto her lane.
Both the reports however were not made immediately after the accident.
The plaintiff obviously was unable to do because of his injuries whereas the
defendant’s explanation for lodging her report the following day was that she
waited at the 10th mile Police Station until 2 a.m. but was told to corne back 15
in the afternoon to lodge the report. It is an explanation which I find plausible
and in this respect the case of A Perianayagam & Anor v Yeo Suan Tin & Anor
[1984] 1 MLJ 214 cited by the plaintiff’s counsel is distinguishable because in
the said case no reason was given for the delay in making the police report.
20
[6] Coming back to the defendant’s allegation on the encroachment by the
plaintiff, I agree her failure to mention that material fact in her police report
worked to her own detriment and coupled with the fact that encroachment was
not pleaded in her defence, I would have to disregard it in my consideration
of the evidence on liability. Having said that however, and the issue of
encroachment aside, since the police reports of both parties have substantially 25
corroborated the oral testimonies of their makers in court, I must therefore
look elsewhere for the necessary evidence which could strengthen either
party’s case.

[7] The sketch plan is a good place to start for that purpose. The police 30
traffic officer who drew it, En Runai ak Sitem (PW1) had retired from the
police force. He testified that point “B” was the point of impact. In the key
to his sketch plan, point “B” was where the broken glass was and it was not
disputed that where he drew that point was on the plaintiff’s right of way.
What he said was in my view, sufficient to tilt the balance to the plaintiff’s side
35
because if I accept the presence of the glass fragments at point “B” and I have
no reason not to, then that should in all probability be the point of impact. I
am aware of case authorities which held that the presence of glass fragments
is not definite proof of the point of collision because glass could be scattered
about from the impact of the collision and when the vehicles moved. (See
for example Mat Desa b Salleh v Ang Hock Lee & Anor [1979] 1 MLJ 241). That 40
may be the case but I believe where the glass fragments were noted to be at
one spot such as in this case and there being no other probable explanation

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 Daminanto b Samin v Chong Siew Phin
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1 for it being there, the investigating officer and I were fully entitled to point
to that spot as the probable point of impact.

[8] Determining the point of impact brings me a step closer to the conclusion
5 on liability because the fact that the collision occurred on the plaintiff’s right
of way meant that the plaintiff’s version of how the accident occurred was
the more probable one. The definitive consideration was the improbability
of the defendant’s version of how the accident happened. I could not fathom
why the plaintiff would have encroached on her right of way as she claimed,
it being a straight road and all and there being no other vehicles on the road
10
that the plaintiff was overtaking.

[9] Even if I were to accept that she did stop her car and gave a signal to
turn, the fact that she did not make that turn safely shows that she did not
give a proper look out and leave sufficient space and time for the vehicle on
15 the opposite lane to clear before making that turn. As for the defendant’s
allegation of the plaintiff speeding at that material time, I am of the view
that the speed of the plaintiff’s motorcycle was not a relevant consideration
in this case because even if he was travelling at 70 kmph, it was not excessive
in the circumstances because I note that the road was a country road and not
20
a busy thoroughfare. In addition rule 3(2)(b) of the Road Transport Rules
1959 clearly provides that when turning left or right, drivers must always
give way to through traffic and the case of Govinda Raju & Anor v Laws [1966]
1 MLJ 188 held that failure to observe rule 18 of the Highway Code (a similar
provision) is a factor to consider in determining liability. For the above reasons,
the defendant’s liability was already proven.
25
[10] What I next have to consider is whether the plaintiff has done anything
to contribute to the collision and/or whether he could have, by some effort
on his part, avoided it.

30 [11] The answers to both posers are in my view, negative. He was travelling
along a straight road at a speed, which to me was not excessive and whilst so
travelling, the defendant’s car suddenly made a turn into his lane. Why did
the defendant not see him in sufficient time to allow her to clear that turning?
I can’t think of any plausible reason but inattention on her part and her own
failure to make a proper lookout before making that turn.
35

[12] Thus, for all the foregoing considerations, I find liability to be against
the defendant 100%.

[13] Next the quantum on damages.

40

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General damages 1

[14] As stated earlier the plaintiff suffered a Grade 3A compound fracture

of the right tibia and fibula. As stated in the medical report (p 1 of exh P3) of
Dr Francis Ting Siew Sieng (PW5) the treatment prescribed included wound 5
debridement and calcaneal pin insertion which was done on October 23, 2001.
Wound debridement was repeated on October 26, 2001 (as infection had set
in on the wound). On November 6, 2001 an interlocking nail was inserted for
the right tibia and at the same time split skin grafting was also done. PW5
testified that this nail would need removal because the plaintiff was still young.
10
The plaintiff was recommended and did follow up treatments at Sarawak
General Hospital. During his 22 days of hospitalisation, the plaintiff said he
was looked after by his father and after his discharge from the hospital, his
sister and mother looked after him at home. Two months after the accident
he was able to walk with crutches and only resumed work as a hospital
attendant of Sarawak General Hospital in February 2002. The plaintiff also 15
testified regarding the scar at the site of the fracture wound which he said
was bad enough to cause him embarrassment and preventing him from using
short pants. He showed the scar to the court and PW4. It was quite obvious
and rather ugly. I agree that the said scar could be an embarrassment.
20
[15] PW4’s examination of the plaintiff in court revealed that the latter had
restricted movement of the ankle and some pain over it. Also that the plaintiff
limped slightly and that osteoarthritis was a possibility. The plaintiff himself
testified that he has pain over the left leg and walked with a slight limp. He
could not stand for too long and could not play games anymore.
25
[16] The plaintiff’s counsel submitted that I award the plaintiff RM60,000
for the fracture. He asked that I make separate awards for laceration and
scarring, ankle stiffness, the limp, muscle wasting and loss. The defendant’s
counsel however submitted that RM20,000 was sufficient compensation for
all that the plaintiff has suffered and which figure he revised to RM18,000 30
in his written reply to the plaintiff’s counsel’s main submission. He objected
to any award which took into account the ankle stiffness, muscle wasting
and limp because he said these were not documented in the medical report
of PW4. I do not think that was a valid objection. I am not aware of any law
that says that I have to rely solely on the medical report of the expert and
35
discount anything said by the expert in his oral testimony which were not
mentioned in the report. As long as the evidence was pleaded and relevant,
it was admissible and if they be contra dictionary then it would be up to me
to decide on the weight to be given to such evidence. As for making separate
awards for the residual injuries, except for the scarring, I do not subscribe to
such a practice. My award would be a global figure taking into account these 40
residual injuries together with loss of amenities. In fact, it was held in the
Singapore case of Seah Yit Chen v Singapore Bus Service [19781 Ltd & Ors [1990]

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1 3 MLJ 144 that when the injuries sustained were related to the same part or
function of the body, there should only be one award of damages, without
any risk of overlapping. His Lordship, Yong Pung How CJ advised that it
is desirable to make one award for the fracture of the tibia (the injury in the
5 said case), taking into account in doing so, all the facts and circumstances,
including the onset of osteoarthritis, the scars and the skin grafts. I made
an exception to scarring, giving due regard to the fact that the Malaysian
courts have been making separate awards for the same. Thus for scarring,
I would give an award of RM8,000. Laceration wound, I would however
ignore because it was neither documented nor alluded to in PW4’s evidence.
10
Taking into account all the above, including the fact that the plaintiff had to
undergo 2 wound debridement procedures under general anesthesia and
was hospitalised for 22 days, I am of the view that an award of RM50,000 is
appropriate as general damages for the plaintiff’s pain and suffering. I would
however deduct 10% from these 2 awards for overlapping making the total
15 award here RM52,200.

Loss of earning capacity

[17] The plaintiff’s justification for claiming under this head was that his leg
20
was not strong enough to enable him to do physical work such as carrying
patients. His counsel submitted that there was likelihood of him not being
able to carryon working as a hospital attendant.

[18] I dismiss this contention as flimsy because the defendant was a civil
servant and there was no evidence to suggest that his job was at stake because
25 of his fractured left leg. Dismissal from the public services on grounds of
ill-health is governed by its own set of guidelines and procedures and there
was no evidence that the plaintiff’s employer was setting into motion steps
to implement these procedures and have the plaintiff dismissed.

30 Special damages

[19] What has been agreed by the parties were only 2 items i.e. cost of medical
report at RM40 and cost of RIMV JPJ search at RM20. Subsequently in his
written submission the defendant’s counsel conceded to the cost of crutches
(RM70) and the cost of the interlocking nail or implant (RM1,360).
35

[20] The following are the disputed special damages which were pleaded in
the plaintiff’s statement of claim.

(i) Cost of traditional treatment

40
[21] There is no evidence (other that the plaintiff’s own testimony) that the
sum of RM150 (as submitted by his counsel) was expended for this

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treatment. In order to succeed under this claim the plaintiff must first 1
adduce evidence that such treatment had been sought and that it was
reasonable for him to seek the said treatment. In the absence of such
evidence, the plaintiff’s claim herein is disallowed.
5
(ii) Cost of future operation

[22] The defendant’s counsel disputed the cost of future operation to remove
the nail. He submitted that it could be done at the Sarawak General
Hospital. However PW4 (who was formerly Head of the Orthopaedic
10
Department of the Sarawak General Hospital) has testified that because
of their busy schedule, the Sarawak General Hospital would not do
the removal unless there were complications. A private hospital would
charge RM4,000 for it he said. That the Sarawak General Hospital is
a very busy hospital is an undisputed fact. I have no doubt what was
said by PW4 reflected the reality of the situation. Since removal of the 15
implant was required in this case as testified by PW4, I allow the claim
for its removal in the amount as stated above.

Plaintiff’s claim for nursing care

20
[23] The plaintiff’s father testified that he took leave and was with him
throughout the period of his hospitalisation.

[24] In addition, the plaintiff’s sister said she resigned from her job to help
look after the plaintiff after his discharge as he was unable to take care of his
daily needs still although later she continued employment with the same 25
company.

[25] She said she could not take leave because of the limited number of days
she could take for that purpose. The plaintiff was unable to produce any other
evidence to support the termination of his sister’s employment. Evidence on 30
the termination of her employment and re-engagementwas to me procureable.
All that I needed was a letter from her employer to verify her resignation
and subsequent re-engagement. In the absence of such evidence, I am not
prepared to make any award in the terms as submitted by his counsel.
35
[26] However, I acknowledged that with his injury the plaintiff was in need
of some assistance with his daily needs especially during the period of his
hospitalisation. Although the hospital nurses were in the wards 24 hours they
could not afford to give total and round the clock care to each and every patient.
However by the time he was discharged and on crutches I do not think the
plaintiff required the same kind of care as when he was bedridden during his 40
hospitalisation. Bearing in mind that the sole aim of granting damages is to
compensate the plaintiff for the losses he suffered by reason of the accident,

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1 I should therefore compensate him for the inconvenience that he caused his
family because of their ministrations during his period of recuperation. In
the case of Taylor v Bristol Omnibus Co [1975] 2 All ER 1107, the plaintiff was
indeed compensated for the care and nursing rendered by his parents during
5 his period of disablement. Thus for his period of hospitalisation, I would
award compensation in the sum of RM200 and another RM300 for the period
of his recuperation at home (representing an award of RM100 per month
for the period of roughly 3 months), bearing in mind that his was not a total
disablement.
10
Plaintiff’s claim for travelling expenses for follow up treatment

[27] There was in total 10 follow-up treatments. The plaintiff asked to be

compensated RM50 per trip. Given the distance between the plaintiff’s home
and the Sarawak General Hospital, the claim he made was not excessive and
15 I allow it at RM50 per trip, making a total of RM500 as compensation under
this head.

Plaintiff’s claim for travelling expenses for his family members

20
[28] The plaintiff’s counsel submitted the case of Mat Jusoh b Daud v Syarikat
Jaya Seberang Takir Sdn Bhd [1982] 2 MLJ 71 to support his proposition that the
plaintiff is entitled to claim compensation for the expenses incurred by his
family to visit him during his period of hospitalisation. The plaintiff asked
that I consider 2 trips per day at the cost of RM50 per trip.

25 [29] That I think is too much. A trip a day is reasonable, twice is excessive.
Therefore I would award the sum of RM1,100 as transportation charges for
that period.

Claim for personal effects damaged during the accident

30
[30] The plaintiff contended that his clothing, wristwatch, shoes, helmet and
wallet were damaged in the accident. I have no doubt that these items were
damaged but the figures submitted by the plaintiff for these items were not
substantiated by receipts. I admit however that production of receipts for
these items would not really be possible. I would assess damages here to be
35
no more than RM200.

Claim for the cost of repairing motorcycle

[31] Logically speaking I have no doubt that the motorcycle was damaged
40 but I am not moved to make any award for it for the simple reason that there
must have been a bill for it from the mechanic if the damaged motorcycle
was repaired. None was tendered in evidence. In the absence of such bill or

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receipt, the plaintiff’s claim herein is disallowed. The plaintiff may question 1
why I allowed his claim for damaged personal effects even though there
were also no receipts. The reason is simply because I could safely make a
reasonable estimate of the loss but I could not do the same for a motorcycle
as only a person with a mechanic’s background can do that. 5

Plaintiff’s claim for loss of use of motorcycle

[32] The plaintiff was hospitalised and then on sick leave till he resumed work
in February. He was definitely not riding any motorcycle during this period of
10
recuperation and I therefore see no good reason to allow this claim of his. To
do so would tantamount to unjust enrichment on the part of the plaintiff.

Plaintiff’s loss of additional income

[33] The letter verifying the plaintiffs part-time work with Syarikat Laju Jaya 15
Sdn Bhd at a salary of RM30 per day was tendered as ID9. It was never admitted
as evidence in the trial. I have therefore no evidence to support his contention
on his part time appointment and am constrained to disallow the same.

Summary of decision 20

(1) Liability: 100% with the defendant.

(2) General damages: RM52,200.

(3) Special damages: 25

(i) Agreed damages:

(a) Cost of medical report : RM 40

30
(b) Cost of RIMV IJPJ search : RM 20

(c) Cost of crutches : RM 70

(d) Cost of implant : RM 1,360

35

(ii) Disputed damages allowed:

(a) Cost of removing implant : RM 4,000

(b) Cost of nursing care : RM 500 40

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 Daminanto b Samin v Chong Siew Phin
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1 (c) Cost of plaintiff’s travelling expenses

to Sarawak General Hospital : RM 500

(d) Cost of plaintiff’s family’s travelling

5 expenses to Sarawak General Hospital : RM 1,100

(e) Cost of personal effects damaged : RM 200

(iii) Disputed damages disallowed:

10
(a) Cost of repair of motorcycle

(b) Loss of use of motorcycle

(c) Loss of additional income

15
(d) Cost of traditional treatment

(4) (i) Interest on the general damages at 8% per annum from date of the
summons until full settlement.
20
(ii) Interest on the special damages at 4% per annum from date of the
accident until date of judgment and thereafter at 8% per annum
until full settlement.

(5) Costs:
25
Costs of the action is awarded against the defendant to be taxed unless
agreed.

30

35

40

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