Simon Raj Thevadas Anbalagan

Simon Raj Thevadas Anbalagan
[2022] PILRU 12 v. Haikal Akmal Salihin & Anor pg 1
SIMON RAJ THEVADAS ANBALAGAN

v.
HAIKAL AKMAL SALIHIN & ANOR
Sessions Court, Sepang

Noorhisham Mohd Jaafar SCJ
[Civil Suit No: S2-BK-A53KJ-212-08/2019]
1 July 2022
QUANTUM TABLE
1. Leg - Femur
2. Miscellaneous conditions - Degloving injury

3. Miscellaneous conditions - Muscle wasting
4. Miscellaneous conditions - Scars
Date of accident: 6 September 2018
Summary of plaintiff's injuries
1. Pain in the right thigh during cold weather.
2. Internal rotation deformity of the right thing.
3. Pain in the right knee on exertion.
4. Anterior cruciate ligament laxity of the right knee.
5. Pain in the right ankle and the right foot on walking.
6. Shortening of the right leg.
7. Stiffness of the right knee and the right ankle.
8. Equinus deformity of the right ankle.
9. Swelling of the right ankle.
10. Wasting of the right thigh and the right calf.
11. Inability to squat or to sit cross-legged.

pg 2 v. Haikal Akmal Salihin & Anor [2022] PILRU 12
12. Inability to walk around freely.
13. Inability to lift heavy weights.
14. Unsightly scars.
Age of the plaintiff
(a) On the date of the accident: Not specified
(b) On hearing date: 31 years old
Plaintiff's employment
(b) On hearing date: Crane driver
Plaintiff's income
(b) On hearing date: Not specified
Liability
100% against the defendant
Award (Based on 100% liability)
1. General damages
(a) Degloving injury of the right elbow - RM15,000.00
(b) Grade 2 open fracture of right femur - RM40,000.00
(c) Grade 3B open fracture of right tibia and fibula - RM40,000.00
(d) Anterior cruciate ligament injury of right knee - RM20,000.00
(e) Multiple scars - RM30,000.00
(f) Muscles wasting - right thigh and right calf - RM6,000.00
2. Special damages
(a) Loss of earning - RM63,000.00
(b) Future loss of earning - Not allowed
(c) Loss of earning capasity - RM30,000.00
(d) Future treatments - RM10,000.00
(e) Pain and suffering for future operations - RM5,000.00

(f) Plaintiff's family's travelling expenses to hospital - RM5,400.00
(g) Plaintiff's travelling expenses for follow up treatment - RM1,000.00
(h) Hospital bills - RM910.00
Interest
(a) Interest at the rate of 5% per annum for the general damages from
the date of the service of the writ of summons until the date of the
decision;
(b) Interest at 2.5% per annum for the special damages from the date
of the accident to the date of decision (no interest for the costs
awarded for future treatments);
(c) Interest at the rate of 5% per annum for all damages from the date
of the decision until the date of the full and final settlement.
Case(s) referred to:

Abdul Rahman v. Soon Ah Hai [1977] 1 MLRA 211; [1978] 2 MLJ 31 (refd)
Abu Hassan Ali v. Lee Peng Kong [1977] 1 MLRH 253; [1977] 2 MLJ 121 (refd)
Ah Mee v. Public Prosecutor [1967] 1 MLRA 291; [1967] 1 MLJ 220 (refd)
Ajit Kumar Arumugam v. Tee Wi Tiow @ Tay Kuan Tok [2021] 1 PIR 24 (refd)
Annamalay Retnam v. Mah Chong Peng & Anor [2010] 1 MLRA 662; [2010] 6
CLJ 487 (refd)
Assokumar Benugopal @ Ramus v. Lai Bak Seng & Anor [2020] 2 PIR 25 (refd)
Azmadarmawi Saupi v. Mohd Zamri Abu Bakar & Anor [2020] PILRU 21; [2021]
1 PIR 45 (refd)
Bong Chee Min v. Jacknoris Golinjun [2020] 2 MLRH 204 (refd)
Chan Kim Hee v. Karam Singh & Anor [1980] 1 MLRH 127; [1981] 2 MLJ 273
(refd)
Chan Peng Fook v. Kan Pak Lee [1974] 1 MLRH 355; [1974] 2 MLJ 197 (refd)
Chan Sau Chuan v. Choi Kong Chaw & Yap Yun Chan [1990] 3 MLRH 213;
[1991] 2 CLJ (Rep) 394 (refd)
Chan Yoke Lain v. Pacific & Orient Insurance Co Sdn Bhd [1998] 2 MLRA 272;
[1999] 1 MLJ 303; [1999] 1 CLJ 179 (refd)
Chin Quek Ton [2008] PILRU 14; [2009] 1 PIR 13 (refd)
Gunalan Chandakesan & Anor v. Tamil Arusu Velu [2014] MLRHU 542 (refd)
Gurisha Taranjeet Kaur & Anor v. Dr Premitha Damodaran & Anor [2020]
MLRHU 754; [2020] 9 MLJ 409; [2020] 6 CLJ 446 (refd)
Hasbi Omar v. Nui Chai Kian [2021] 2 PIR 46 (refd)
Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 4 MLRA 89; [2017] 5 MLJ
398; [2017] 8 CLJ 491 (refd)
Jafri Elias v. Khor Tang Seah [1990] 4 MLRH 222; [1992] 2 CLJ (Rep) 601 (refd)
Kamala Balachandran & Anor v. Mohd Lugman Hakim Shahrin [2020] 1 PIR 5
(refd)
Kasirin Kasmani v. The Official Administrator & Anor [1991] 1 MLRH 325;
[1991] 2 CLJ (Rep) 800 (refd)
Khairul Azwan Abdullah v. Khairol Azman Ibrahim [2012] PILRU 28; [2013] 2
PIR 4 (refd)
Kim Lin Chan v. Lee Hua Sing [2019] MLRHU 1230 (refd)
Koay Teik Choo & Ors v. Reg [1955] 1 MLRH 588; [1956] 22 MLJ 52 (refd)
Krishna Murthey & Anor v. Law Lye Chua [1991] 3 MLRH 496; [1992] 2 CLJ
(Rep) 668 (refd)
Lai Bak Seng Dan Satu Lagi v. Assokumar Venugopal @ Ramus [2021] MLRHU
217 (refd)
Lariman Niuk v. Mohd Helmieza Suhaimi [2020] MLRHU 1777 (refd)
Leenesh Vijaya & Anor v. Yap Chiew Sun [2017] MLRHU 1502 (refd)
Lim Hock Boon v. Aw Chee Keong & Ors [2019] MLRHU 1844 (refd)
Lim Jeh Haur v. Nicholas Thomas Philip & Anor [2019] MLRHU 1023 (refd)
MGI Securities Sdn Bhd v. Teong Teck Leng & Ors [1999] 4 MLRH 433; [2000] 1
MLJ 354; [2000] 5 CLJ 163 (refd)
Mohamad Hishyam Hassan & Others v. Sathiaseelan Nagappan [2018] MLRHU
2047 (refd)
Mohamad Sabri Aami v. Mohd Fahrudin Ishak & Anor [2020] 2 PIR 28 (refd)
Mohd Rizal Abdul Gani v. Heng Mohd Wah [2017] PILRU 33; [2017] 1 PIR 53
(refd)
Mohd Salleh Samad v. Zainuddin Dongking [2001] 4 MLRH 113; [2002] 1 CLJ
139 (refd)
Muhammad Asyraf Zulkipli & Anor v. Muhammad Hafiz Ezman Ismail & Ors
[2019] MLRHU 336 (refd)
Muhammad Yassein Zuliskandar v. Kerajaan Malaysia & Ors [2019] 1 MLRA
566; [2019] 4 CLJ 280; [2018] 6 AMR 767 (refd)
Muhammad Yazid Tasra & Satu Lagi v. Purwanto Purwadi & Satu Lagi [2020]
MLRHU 113 (refd)
Munusamy Vengadasalam v. PP [1986] 1 MLRA 292; [1987] 1 MLJ 492; [1987]
CLJ (Rep) 221 (refd)
Ngooi Ku Siong & Anor v. Aidi Abdullah [1984] 1 MLRA 200; [1985] 1 MLJ 30;
[1984] 1 CLJ (Rep) 294 (refd)
Nik Shamerul Hafizi Nik Mazlan & Anor v. Khairulanwar Nawi & Anor [2020]
MLRHU 2233 (refd)
Nur Ali v. Varghese Mathew & Satu Lagi [2018] MLRHU 98 (refd)
Ong Ah Long v. Dr S Underwood [1983] 1 MLRA 154; [1983] 2 MLJ 324; [1983]
CLJ (Rep) 330 (refd)
Ong Cheng Wah v. Supramaniam Arjunan [2001] 2 MLRH 1; [2001] 4 CLJ 202
(refd)
Othman Ahmad v. Samsudin Hj Mohd Sani & Yang Lain [1992] 1 MLRH 311;
[1992] 1 CLJ (Rep) 529 (refd)
Powell and Wife v. Streatham Manor Nursing Home [1935] AC 267 (refd)
PP v. Mohamed Ali [1962] 1 MLRH 79; [1962] 1 MLJ 257 (refd)
Puah Pei Wen v. Goh Chee Wei [2019] MLRHU 1878 (refd)
Puvendran Rajamanickam v. Muhammad Ammar Adenan [2017] PILRU 53;
[2017] 1 PIR 55 (refd)
Raj Kumar Tamilselvam v. Mohd Nooriman Abd Hamid & Anor [2018] PILRU
102; [2019] 2 PIR 1 (refd)
Rozita Ahmad & Yang Lain lwn. Mohd Yusof Saidin & Satu Lagi [2015]
MLRHU 1170 (refd)
Sabah Shell Petroleum Co Ltd & Anor v. The Owners of and/or Any Other
Persons Interested In The Ship Or Vessel The 'Borcos Takdir' [2012] 4 MLRH
560; [2012] 5 MLJ 51 (refd)
Sabri Abdul Talib & Anor v. Tiong Mee Kooi & Another Cases [2021] MLRHU
2129 (refd)
San Seong Chay & Ors v. Yuson Bien [1963] 1 MLRA 305; [1963] 1 MLJ 235
(refd)
San Yan v. Aziz Abdullah And Anor [2008] 7 MLRH 256; [2009] 3 MLJ 412
(refd)
Seah Yit Chen v. Singapore Bus Service (1978) Ltd & Ors [1990] 5 MLRH 605;
[1990] 3 MLJ 144; [1990] 2 CLJ 901 (refd)
See Keng Wah v. Lim Tew Hong [1955] 1 MLRH 409; [1957] MLJ 137 (refd)
Selvaduray v. Chinniah [1939] 1 MLRA 446; [1939] 1 MLJ 253 (refd)
Shanmugam Gopal v. Zinal Abidin Nazim & Anor [2003] 3 MLRH 410; [2003] 3
MLJ 76; [2003] 8 CLJ 729 (refd)
Sia Wei Yong & Anor v. Mohamad Farhanizar Yusoff [2019] MLRHU 1864
(refd)
Sitti Rajumah & Anor v. Mohd Rafiuddin Elmin [1996] 2 MLRH 890; [1996] 4
CLJ 274 (refd)
Sujin Kudang v. Kho Min Huat [2008] PILRU 95; [2008] 2 PIR 24 (refd)
Sumarni v. Yow Bing Kwong & Anor [2007] 3 MLRA 504; [2008] 1 MLJ 608;
[2008] 3 CLJ 489 (refd)
Tabarani Mohd Arshad & Anor v. Chan Tenn Yeu [1999] 1 MLRH 489; [1999] 3
CLJ 188; [1999] 2 AMR 1884 (refd)
Tan Teck Hing & Anor v. Lee Yong Kong & Anor [2003] 2 MLRH 87; [2003] 1
MLJ 599; [2003] 5 CLJ 400; [2003] 2 AMR 258 (refd)
Teo Peik Ngee v. Saidi Muda & Anor [2008] PILRU 98; [2010] 1 PIR 10 (refd)
Tuan Ahmad Syahir Tuan Dahalan v. Chin Kiew Moi & Anor [2008] PILRU 99;
[2008] 2 PIR 45 (refd)
U Television Sdn Bhd & Anor v. Comintel Sdn Bhd [2017] 5 MLRA 289; [2017] 5
MLJ 292; [2017] 10 CLJ 580 (refd)
Wong Thin Yit v. Mohamed Ali [1971] 1 MLRA 483; [1971] 2 MLJ 175 (refd)
Yahaya Mat & Anor v. Abdul Rahman Abu [1982] 1 MLRA 179; [1982] 1 MLJ
202; [1982] CLJ (Rep) 363 (refd)
Yang Yap Fong & Anor v. Leong Pek Hoon & Anor [1987] 1 MLRA 187; [1987]
2 MLJ 201; [1987] CLJ (Rep) 419 (refd)
Legislation referred to:

Civil Law Act 1956, s 28A(2)(c)
Evidence Act 1950, ss 101, 102, 114(g)
Road Transport Act 1987, ss 68(3), 121
Counsel:
For the plaintiff: Dato' Amarjit Singh Gill Darshan Singh (Ranjit Kaur Gill
Darshan Singh with him); M/s Darshan Syed Amarjit & Partners
For the defendants: Kamini Devi Subramaniam; M/s VP Nathan & Partners
[Order accordingly.]
JUDGMENT
Noorhisham Mohd Jaafar SCJ:
Introduction
[1] This is a running down case involving two conflicting versions by the
plaintiff and the first defendant in regard to the circumstances surrounding the
collision.
[2] Upon in-depth consideration of the rival contentions and the whole
spectrum of the pleadings and the web of evidence woven thoroughly scanned,
I found that the plaintiff had proved, on the balance of probabilities, his claim
against the defendants. I, therefore, allowed the plaintiff's claim against them
with costs.
[3] And hereinbelow, the reasons.
Parties
[4] In this judgment, "the plaintiff" will be referred to as the plaintiff. And
unless mentioned individually, "the first defendant" and "the second
defendant" will be collectively referred to as the defendants.
Brief Facts
[5] The material facts are in a short compass.
[6] The genesis of the case arises from an accident which occurred on 6
September 2018, at approximately 8.15 pm. (the accident), at Jalan Serdang
Belah Banting (the scene of the accident), between a motorcycle bearing
registration number BLB 4342 (the motorcycle) ridden by Simon Raj A/L
Thevadas Anbalagan (the plaintiff) and a car bearing registration number
WNG 3377 (the car) driven by Haikal Akmal Bin Salihin (the first defendant).
[7] Ahmad Zamani Bin Sahni (the second defendant) was, at the material
time, the registered owner of the car. He was sued for vicarious liability for the
negligence committed by the first defendant.
[8] At the material time, the plaintiff was riding the motorcycle from the
direction of Banting towards Sungai Buaya (from the top to the bottom relative
to the sketch plan), whilst the first defendant was driving the car from the
direction of Sungai Buaya towards Banting (from the bottom to the top relative
to the sketch plan).
[9] Both the plaintiff and the first defendant claimed encroachment,
respectively:
(i) The plaintiff version runs this way: it was the first defendant who
drove his car, travelling in the opposite direction to the plaintiff,
suddenly swerved off the road to avoid hitting a dog, encroaching into
the plaintiff's lawful path of the road.
(ii) the first defendant's version runs this way: it was the plaintiff who
rode his motorcycle, travelling in the opposite direction to the first
defendant, suddenly overtook another car in front of him, encroaching
into the first defendant's lawful path of the road.
[10] Consequent to the accident, the plaintiff fell off his motorcycle and was
injured. He received treatment at the Banting Hospital for his injuries. And the
first defendant emerged from the accident uninjured.
[11] Both vehicles sustained damages in the collision, and accident debris was
seen scattered on the road.
[12] On 14 August 2019, the plaintiff commenced a negligence action (the

action) against the defendants. He was represented by Messrs. Darshan Syed
Amarjit & Partners.
[13] On 1 October 2019, the defendants entered appearance and filed their
defence against the plaintiff's action. They were represented by Messrs VP
Nathan & Partners.
Approaching The Arguments
[14] Before addressing the competing arguments, I find it convenient to set out
below the well-established principles governing the burden of proof, to which I
shall immediately turn.
Burden Of Proof
[15] Elementary as it is, it is worth noting at the outset that the burden and
standard of proof, which is the legal burden on the balance of probabilities, as
prescribed by ss 101 and 102 of the Evidence Act 1950 (the Act). Section 101
of the Act reads:
"101. Burden of proof
(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."
[16] And s 102 of the Act reads:
"102. On whom burden of proof lies
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."
[17] Guidelines have been developed over the years in precedents concerning
the centrally relevant burden of proof. Elucidating the relevant subject
succinctly, the Federal Court, speaking through Ong CJ (Malaya) in the case
of Wong Thin Yit v. Mohamed Ali [1971] 1 MLRA 483; [1971] 2 MLJ 175
observed:
"In a negligence action the onus of proof rests wholly on the plaintiff,
whether or not the defendant gives evidence. The plaintiff cannot
succeed without proof of the defendant's negligence. Evidence is the
foundation of proof, with which it must not be confounded. Proof is
that which leads to a conclusion as to the truth or falsity of alleged
facts which are the subject of inquiry. Evidence, if accepted and
believed, may result in proof, but it is not necessarily proof of itself.";
see 15 Halsbury (3rd Edn) p 260."
[18] As well, a terse summation of the law by K C Vohrah J (later JCA) in the
case of Krishna Murthey & Anor v. Law Lye Chua [1991] 3 MLRH 496; [1992]
2 CLJ (Rep) 668, wherein His Lordship observed:
"The onus is not on the defendant to prove that he was not negligent.
As was succinctly pointed out by Hashim Yeop A Sani J (as he then
was) in Ng Chui Sai v. Maimon Bt Ali [1982] 1 MLRH 784; [1983] 1
MLJ 110:
In an action for negligence the onus of proving the allegation

of negligence rests on the person who makes it unless there are
disclosed facts which raise a presumption in favour of the
plaintiff. The plaintiff must show affirmatively that there has
been a breach of a specific or genuine duty by the defendant
and this resulted in the damage to the plaintiff. If he fails to
prove this the action must fail."
[19] I also find instructive the statement of principles by RK Nathan J in the

case of Jafri Elias v. Khor Tang Seah [1990] 4 MLRH 222; [1992] 2 CLJ (Rep)
601, wherein His Lordship observed:
"In my view it was unjustified for the Judge to put liability at all on the
defendant when the plaintiff had not discharged the onus of proof on
him on balance of probabilities that the accident was caused by the
negligence of the defendant either wholly or partially and I therefore
allowed the appeal of the defendant with costs."
[20] And I add incidentally that ss 101 and 102 of the Act were referred to in
MGI Securities Sdn Bhd v. Teong Teck Leng & Ors [1999] 4 MLRH 433; [2000]
1 MLJ 354; [2000] 5 CLJ 163, by K L Rekhraj J, wherein His Lordship
observed:
"... sections 101 and 102 of the Evidence Act 1950 require 'whosoever
desires any court to give judgment as to any legal right or liability
dependent on the existence of facts, which he asserts, must prove those
facts do exist'; and here the plaintiff having chosen and elected not to
lead the evidence of the oral agreements through its witnesses, the
court could only hold that there was no evidence of the plaintiff's
before the court to adjudicate upon; and accordingly dismissed the
plaintiff's claim with costs."
[21] I shall, in the same score, direct myself in accordance with the concise
statement of the law in the Federal Court case of U Television Sdn Bhd & Anor
v. Comintel Sdn Bhd [2017] 5 MLRA 289; [2017] 5 MLJ 292; [2017] 10 CLJ
580, wherein it was observed:
"35. On the meaning and application of the term "burden of proof" s

101 of the Evidence Act 1950 ("the Act") states that it is the burden to
establish a case which rests throughout on the party who assert the
affirmative of the issue. The "burden of proof" in s 102 of the Act is the
burden to adduce evidence, to make out or rebut the claim. The
"burden of proof" in s 102 of the Act shifts from one side to the other
according to the weight of the evidence."
[22] Continuing along the same vein is the salutary reminder by Arifin Zakaria
CJ in the Federal Court case of Hong Yik Trading v. Liziz Plantation Sdn Bhd
[2017] 4 MLRA 89; [2017] 5 MLJ 398; [2017] 8 CLJ 491 as respects the
burden of proof, where His Lordship, having cited with approval a passage by
Terrell, Ag CJ in the case of Selvaduray v. Chinniah [1939] 1 MLRA 446;
[1939] 1 MLJ 253 observed:
"[12] It is settled law that the burden of proof rests throughout the trial
on the party who asserts that the facts exist (s 101 of the Evidence Act
1950). Where a party on whom the burden of proof lies has discharged
that burden, then the evidential burden shifts to the other party.
However, if the party on whom the burden of proof lies fails to
discharge it, the other party need not call any evidence. This is
highlighted in the case of Selvaduray v. Chinniah [1939] 1 MLRA 446;
[1939] 1 MLJ 253 where Terrell, Ag CJ stated:
... it is clear that the onus is on the plaintiff to prove his case.
After the conclusion of the whole case, there must be some
preponderance in his favour. It may be true that the plaintiff
established a prima facie case, but at the conclusion of the trial,
the learned Judge has found that the position was exactly
even, ie that any preponderance in the plaintiff's favour had

disappeared. That being the case, the plaintiff must necessarily
fail, as he has not discharged the onus which is upon him. No
doubt the defendant would equally have failed if he had been
the claimant and had tried to establish, as a substantive part of
his case, the alternative version which he tried to prove in
answer to that of the plaintiff."
[23] Given the above authoritative statement of principles, I move to consider

the arguments at the centre of concern.
Arguments On Liability
[24] In this judgment, the parties' competing arguments are (without, I hope,
lessening unduly from their depth and detailed precision) summarised in
accordance with the respective heading of analysis.
[25] Learned counsel for the plaintiff trotted out an argument that the plaintiff
had proved his claim against the defendants. Arguing further, he asserted that
the first defendant's negligence was the sole cause of the accident. He,
therefore, submitted that the first defendant was wholly to blame for the
accident.
[26] Resisting the aforesaid contention, learned counsel for the defendants laid
out an argument that the plaintiff failed to prove the first defendant's
negligence as the cause of the accident. Therefore, he urged the court to
dismiss the plaintiff's action with costs.
[27] Having sketched in the competing arguments, I shall at present address

the issue at the heart of deliberation: whether the plaintiff has discharged the
burden of proof on the balance of probabilities proving that the negligence of
the first defendant caused the accident.
(1) Conflicting Versions - Which Version Is More Inherently Probable?
[28] As is conspicuously apparent, there are two conflicting versions regarding

the occurrence of the accident, namely:
(i) the plaintiff's version where he asserted that it was the first
defendant who drove his car, travelling in the opposite direction to the
plaintiff, suddenly swerved off the road to avoid hitting a dog,
encroaching into the plaintiff's lawful path of the road; and
(ii) the first defendant's version where he asserted that it was the
plaintiff who rode his motorcycle, travelling in the opposite direction
to the first defendant, suddenly overtook another car in front of him,
encroaching into the first defendant's lawful path of the road.
[29] Therefore, the question is which version is more inherently probable then
the other.
Analysis
[30] Upon being confronted with two conflicting versions, it is my duty to

assess which version is more inherently probable or improbable. As Abdul
Malik Ishak J (later JCA) succinctly put it in Tabarani Mohd Arshad & Anor v.
Chan Tenn Yeu [1999] 1 MLRH 489; [1999] 3 CLJ 188; [1999] 2 AMR 1884,
wherein His Lordship having cited with approval the case of Koay Teik Choo
& Ors v. Reg [1955] 1 MLRH 588; [1956] 22 MLJ 52, observed:
"When confronted with two conflicting versions, the duty of the trial
court was to consider which version was inherently probable or
improbable. The trial court should have been more meticulous and
considered other probable versions provided they were within the
scope and ambit of the pleadings and supportable by admissible
evidence including the neutral ones. This approach provides a wide
leverage for the trial court to manoeuvre bearing in mind, always, the
testimony of the credible witnesses. Spenser Wilkinson J castigated the
magistrate in Koay Teik Choo & Ors v. Reg [1955] 1 MLRH 588;
[1956] 22 MLJ 52, for approaching the case upon the basis of which of
the two conflicting stories he should believe. His Lordship remarked at
p 53 of the report that:
One of the dangers of this approach is that it leaves entirely

out of account the possibility (which in my opinion existed in
a very high degree in the present case) that what has really
been proved is something between the two stories.
[31] Considered in light of the afore-cited observation, and weighing them

with the factual scores and circumstantial peculiarities of the present case, I
respectfully find that the cumulative force of the evidence establishes on the
balance of probabilities that the plaintiff's version as respects the occurrence of
the accident is more inherently probable than that of the first defendant. There
follow the reasons.
[32] Addressing the conflicting versions directly in concern, I find it apt to

examine the other evidence available before making any definite conclusion.
And manifestly as it is, the applicable test remains as approved by the Court of
Appeal in the more than a half century case of San Seong Chay & Ors v. Yuson
Bien [1963] 1 MLRA 305; [1963] 1 MLJ 235, id est, where the parties on either
side subscribe to conflicting stories, the photographs, the sketch plan and the
nature of the damage to each vehicle offer the most reliable guide by which
such evidence can be tested and reliably assessed.
[32] Against the scene of the foregoing proposition, I shall presently consider
the centrally relevant pieces of evidence
(i) Sketch Plan
[34] PW1's (the Investigating Officer) evidence clearly shows that oil spillage,
broken shattered glass and vehicle remnants were on the plaintiff's lawful path
of the road. According to him, there was none found of the first defendant's
lawful path of the road. (For shorthand purposes, I shall refer to them as the
accident debris)
[35] In his evidence, the Investigating Officer stated that the accident debris
was found residing at the marking "SK" on the sketch plan, which stands as
"Serpihan Kenderaan". He further confirmed that the accident debris was on
the plaintiff lawful path of the road. So far as relevant, his pieces of evidence
were these:
"S: Di ms 5 Tuan Hakim, di P1. Sarjan, ada satu tanda yang telah
ditandakan sebagai S K. Apa itu SK?
J: S K sebenarnya Serpihan Kenderaan terdapat di tepi kanan bahu

jalan.
S: Tepi kanan bahu jalan?
J: Ya.
S: Maksudnya serpihan kenderaan ini di laluan sah motosikal, betul?
J: Betul."
(ii) Photographic Evidence
[36] So far as concerns the marking on the sketch plan, the Investigating
Officer clearly explained under oath that the sketch plan was not drawn to
scale. Also, the Investigating Officer stated in evidence that the photographic
evidence provided a clearer explanation regarding the location of the accident
debris at the scene of the accident. As well, he confirmed that the accident
debris was found residing at the plaintiff's lawful path of the road. His
evidence reads:
"S: Di Rajah Kasar Tuan Hakim, hanya ada bulat, tetapi bulat itu atas
laluan kereta, tetapi apabila saya rujuk kepada gambar, gambar itu
menunjukkan tompokan minyak di atas laluan motosikal.
.....
Sarjan setuju dengan saya bahawa memanglah Rajah Kasar memang

tidak mengikut skala, betul?
J: Betul.
S: Gambar memberikan satu penjelasan yang lebih jelas tempat

kejadian Sarjan?
J: Betul Yang Arif.

S: Jadi kalau kita lihat kepada gambar P2B ini Sarjan, yang tadi saya
rujuk di bawah, setuju dengan saya bahawa dapat dilihat dengan jelas
bahawa tompokan minyak itu sebenarnya lebih berada di atas laluan
motosikal setuju?
J: Setuju Yang Arif.
S:...
Now, jadi Sarjan setuju bahawa sekarang di atas laluan motosikal ada
tompokan minyak, ada juga serpihan kaca, di atas laluan motosikal,
setuju?
J: Setuju.
S: Ada ke apa - apa serpihan kaca di atas laluan kereta?
J: Tidak didapati Yang Arif."
[37] Moreover, the Investigating Officer confirmed under oath that there was
no accident debris found residing at the first defendant's lawful path of the
road. His evidence runs:
"S: Ada ke apa - apa serpihan kaca di atas laluan kereta?
J: Tidak didapati Yang Arif."
.....
S: Tetapi di laluan motokar, lansung tiada apa - apa, serpihan

tersebut?
J: Betul Yang Arif."
[38] Confusion subsequently arose during cross - examination concerning the

location of the accident debris. So far as relevant, the confusion stems from the
following piece of the Investigating Officer's evidence:
"S: Sarjan setuju dengan saya kesan lebih kepada laluan pemandu
motor kereta, lebih tertumpu kepada arah perjalanan motor kereta,
berdasarkan gambar P2B.
J: Okay, berdasarkan kepada gambar yang saya ambil, tompokan

minyak itu ada di kedua - dua sebelah kiri pun ada, dan di sebelah
kanan jalan pun ada.
S: So di kedua - dua arah?

J: Di kedua - dua arah.
S: Saya rujuk Sarjan kepada P1. Tompokan yang Sarjan lukis itu
berada di laluan
J: Motokar."
[39] But upon subsequent questioning during re - examination, learned counsel

for the plaintiff had sufficiently addressed the confusion in the Investigating
Officer's evidence. He was categoric in his evidence, testifying that the
accident debris was found residing at the plaintiff's lawful path of the road. His
evidence unveils:
"S: Now, Sarjan saya ingin kembali kepada gambar tadi, mungkin ada
sedikit confusion. Saya ingin rujuk kepada gambar P2B, mungkin ada
confusion.
Sekali lagi saya hendak rujuk kepada gambar ini, jelaskan kepada
Mahkamah, laluan ini, atas ke bawah ini adalah laluan motosikal?
Mungkin ada kesilapan type ke, belah itu Serdang ke apa, tetapi
berdasarkan kepada gambar ini
.....
J: Ini dari arah Serdang Belah
.....
S: Owh I see, Serdang Belah, maknanya Serdang Belah, daripada

bawah ke atas.
J: Bawah ke atas. Ya.
.....
S: Jadi atas ke bawah ini laluan motosikal?
J: Ya, ya.
....."
[40] And reiterating his unfaltering stance, he confirmed under oath that the
accident debris resided at the plaintiff's lawful path of the road. His evidence
runs:
"S: The right side is motorcycle. The Serdang Belah is on the left side
of the photo. Itu lah tadi ada confusion sikit. Jadi apa yang saya
tunjukkan tadi tompokan minyak itu semua ada atas laluan motosikal
sahaja?
J: Ya."
Summing Up
[41] Having analysed the relevant pieces of evidence on its entirety, I

respectfully recognise the force of the argument put forth by learned counsel
for the plaintiff that the accident debris resting place aligned well with the
plaintiff's narrative on the witness stand. No doubt mindful of the confusion in
evidence concerning the marking on the sketch plan, the Investigating Officer
had nonetheless rendered sufficient explanation. I am further acutely aware
that the most realistic course to take, where there are conflicting versions in
regard to the way in which the accident occurred and the location at which the
accident debris resided, is to anchor reliance on the photographic evidence.
And upon closer perusal of the respective photograph, mainly Exhibits P2A,
P2B and P2C, I find myself in complete agreement with the central thrust of
the argument set out for the plaintiff's that the first defendant's lawful path of
the road was clear of any debris. That, in my respectful view, bolsters the
probability of the plaintiff's version of the accident.
[42] It further appears clear to me that had the accident occurred in the way
narrated by the first defendant, the accident debris would have certainly
resided at the first defendant's lawful path of the road. That is not the present
case, however. Addedly, there was no explanation offered by the first
defendant during the trial as to how the accident debris resided at the plaintiff's
lawful path of the road if the accident occurred in the way in which the first
defendant narrated it did. That, as I assess it, demonstrates the curse of failure
to put questions to the first defendant on the witness stand. Given the
circumstances, it appears to be inconceivable for the first defendant's version to
stand more inherently probable.
[43] Addressing the subject directly in concern, I place a reference to the

observation by Ho Mooi Ching J in San Yan v. Aziz Bin Abdullah (Mendakwa
Sebagai Bapa Dan Benefisari Yang Sah Kepada Allahyarham Mohd Halilazni Bin
Aziz And Anor [2008] 7 MLRH 256; [2009] 3 MLJ 412, an authority cited for
the plaintiff, wherein Her Ladyship, having cited with approval the Federal
Court case of Abdul Rahman v. Soon Ah Hai [1977] 1 MLRA 211; [1978] 2
MLJ 31, observed:
"No explanation was offered as to how the debris from both vehicles
was in the middle of the road if the accident happened as SP5 insisted
it did. During the hearing of the appeal, both learned counsel agreed
that photos P2E and P2F show scratch marks on the road. These were
not recorded in the sketch plan. They lead obliquely from the middle
of the right side of the road (A3A4 on the sketch plan) to the resting
place of the motorcycle and afford further proof that the motorcycle
was not 2 feet from the side of the road as claimed by SP5. P2E shows
the start of the scratch marks to be roughly in the middle of the
plaintiffs' half of the road and this is probably where the motorcycle
landed alter impact before it reached its final resting place. As in the
case of Abdul Rahman v. Soon Ah Hai [1977] 1 MLRA 211; [1978] 2

MLJ 31, it is inconceivable how there could be acceptance of the
plaintiffs' version of the accident. The physical evidence leads to the
irresistible inference that the collision occurred at or near the middle of
the road and the finding of the sessions court that SD1 was wholly
liable for the collision was against the weight of evidence. I set aside
the Sessions Court's finding as to liability and found both the deceased
and the defendant equally liable for the collision."
[Emphasis Added]
[44] The present case, however, differs. Having had the benefit of observing
the photographic evidence, particularly Exhibit P2A, P2B and P2C, it appears
clear that the accident debris was not found residing at the first defendant's
lawful path of the road. That, in the circumstances, leads to the irresistible
inference that the collision occurred on the plaintiff's lawful path of the road.
Impression On Demeanour
[45] Learned counsel for defendants vehemently challenged the plaintiff's

evidence concerning his narrative of the incident. The plaintiff, however,
remained resolute in his account of the events, flatly denying ever overtaking
any cars and encroaching on the first defendant's lawful path of the road.
Having conducted the trial from the outset to its conclusion, I respectfully find
that the 31-year-old plaintiff, who was a crane driver by profession, appeared
calm and was able to respond to each question thrown at him. He remained
adamant and unyielding in his evidence, whose testimony concerning his
version of the accident was neither besmirched nor shaken. He testified with
certainty that he had never overtook any cars at the material time.
[46] Equally compelling, having evaluated the plaintiff's and the first
defendant's viva voce evidence at the trial first-hand, I am fortified in my
finding that the impression the plaintiff made upon me when narrating his
version under oath was that of a truthful witness whose evidence inspired
confidence. Au contraire, the impression the 30-year-old first defendant made
upon me was, however, relatively the otherwise. Appearing visibly struggled
on the witness stand, I respectfully find his evidence unclear, much less
incoherent, regularly shifting on occasions and unreliable.
[47] An added concern further arises from what transpired during the trial
proceeding. As conspicuously appears from the note of evidence, unbeknownst
to the court and presumably the counsel at the early stage of the proceeding, I
was alerted by learned counsel for the plaintiff in the midst of the trial that
there was a man sitting in the public gallery, whom she thought had been
feeding the first defendant answers to questions on the witness stand.
According to her, she heard voices from the back side of the courtroom,
responding to questions during examinations. Such an incident knocked all
parties for a loop. Upon being asked, the first defendant confirmed that the
man was his father. And upon being confronted, the man expressed his
remarks regarding the way in which the first defendant responded to the
question before accordingly deciding to leave the courtroom. From my

standpoint, such an incident, when viewed collectively with the first
defendant's demeanour throughout the proceeding, merely puts the probability
of his version on the line and reinforces my impression of his evidence as a
whole in contrast to the plaintiff.
[48] Considered in light of the entire spectrum of the evidence and the
circumstantial peculiarities of the case, I respectfully find the plaintiff's version
regarding the occurrence of the accident is more probable than that of the first
defendant. And lest I then be considered belabouring the point of demeanour,
I have well in mind the sterling remarks by Ong Hock Thye FJ in the Federal
Court case of Ah Mee v. Public Prosecutor [1967] 1 MLRA 291; [1967] 1 MLJ
220, where His Lordship observed, "To avoid undue emphasis on demeanour,
it may be well to remember what was said by Lord Wright, and often quoted,
from his judgment in Powell and Wife v. Streatham Manor Nursing Home
[1935] AC 267 of the possibility of the Judges being deceived by adroit or
plausible knaves or by apparent innocence."
(2) The Investigating Officer's Evidence
[49] By way of prelude, I state here the observation by Wong Kian Kheong J
concerning the evidence of an investigating officer in the case of Lim Jeh Haur
v. Nicholas Thomas Philip & Anor [2019] MLRHU 1023, wherein His
Lordship observed:
"23. Firstly, a police officer investigating a road accident may give

evidence regarding the result of his or her investigation, such as (which
are not exhaustive):
(1) the nature and extent of the damage to the vehicles in

question;
(2) the results of an examination of the scene of accident, eg:
(a) whether there were skid marks on the road;
(b) whether the traffic lights and/or street lights were

functioning at the material time; and
(c) whether there were traffic signs at the scene of the

accident; and
(3) a sketch plan of the place of the accident.
24. The court should not attach any weight to the evidence of an IO
that a particular party has been negligent or not (or words to that
effect) because:
(1) whether a party is liable for negligence or otherwise is to be

decided by the court;
(2) an IO has no personal knowledge regarding the accident.

The IO's knowledge of the accident is derived solely from the
results of the IO's investigation... and
(3) an IO's evidence regarding who is negligent or otherwise,

is purely his or her opinion. The court cannot accept opinion
evidence unless there is a relevant issue before the court which
is beyond the court's competence wherein the court may
accept an expert opinion under s 45(1) EA. Section 45(1) EA
provides as follows:
"Opinions of experts
45(1). When the court has to form an opinion upon a

point of foreign law or of science or art, or as to
identity or genuineness of handwriting or finger
impressions, the opinions upon that point of persons
specially skilled in that foreign law, science or art, or
in questions as to identity or genuineness of
handwriting or finger impressions, are relevant facts."
[Emphasis Added]
25. As explained in the above para 24, no weight should be attached to

the opinion evidence of the 2 IO's that the Defendant was not at fault
regarding the Incident."
Analysis
[50] Having thoroughly combed the Investigating Officer's prevailing pieces of

evidence concerning his investigation into the accident, I note here the
following observation. In my viewpoint, the Investigating Officer, whose
opinion was derived solely from his investigation, has no personal interest nor
stands to gain from the outcome of the present action. He is a skilful
Investigating Officer with a four-year and eight-month experience in the
respective field of expertise. In the words of Lim Beng Choo J (later JCA) in
the case of Chan Sau Chuan v. Choi Kong Chaw & Yap Yun Chan [1990] 3
MLRH 213; [1991] 2 CLJ (Rep) 394, "although... not an expert witness in the
strict sense of the words nevertheless he is more than competent to give his
views because of his experience as an investigation officer in traffic accidents
and the quality of the evidence he gave in this trial." And having had the
inestimable benefit of observing the trial first-hand, I respectfully find that, the
Investigating Officer's evidence was neither "inherently improbable" as that
phrase is used in the law, nor in conflict with other evidence, and therefore
worthy of acceptance.
[51] And flowing therefrom, I shall content myself with His Lordship's further
observation in Chan Sau Chuan (supra), wherein it was observed:
"To my mind he is skilful enough for this Court to take into serious
consideration of some of the things said by him in his evidence. It is
stated in Sarkar on Evidence 13th Edn p 521 that:
It is the duty of the Judge to decide whether the skill of any

person in the matter on which evidence of his opinion is
offered is sufficient to entitle him to be considered an expert. It
is the Judge who is to decide the question of competency or
fitness [Bristow v. Secqueville, 19 LJ Ex 289; R v. Silverlock
[1884] 2 QB 766; see Sheo Tahal v. Arjun 56 IC 879 ante.] An
expert, in order to be competent as a witness, need not have
acquired his knowledge professionally; it is sufficient, so far as
the admissibility of the evidence goes, if he has made a special
study of the subject, or acquired a special experience therein."
[Emphasis Added]
[52] Similarly, I place reliance on the more than a half-century observation by

Thomson CJ in the case of PP v. Mohamed Ali [1962] 1 MLRH 79; [1962] 1
MLJ 257, wherein His Lordship observed:
"When a Police witness says something that is not inherently

improbable his evidence must in the first instance be accepted.
If he says he saw a cow jumping over the moon his evidence is, of
course, not to be accepted, but if he says he saw a cow wandering
along one of the main streets of Kuala Lumpur (the sort of thing we all
see every day of our lives) there is not the slightest justification for
refusing to believe him. Of course, if his evidence is contradicted by
other evidence or is shaken by cross-examination then it becomes the
business of the Magistrate to decide whether or not it should be
accepted. In the absence of contradiction, however, and in the absence
of any element of inherent probability the evidence of any witness,
whether a Police witness or not, who gives evidence on affirmation,
should normally be accepted."
[Emphasis Added]
(3) Whether An Adverse Inference May Be Drawn For The Non-Calling Of

The Eye-Witness
[53] Learned counsel for the plaintiff submitted that the eye-witness whom the
first defendant alleged had seen the accident and lodged an independent report
(the eye-witness) failed to come to court to testify for the plaintiff. According
him, the court had paved the way for the first defendant to enable him to
secure the attendance of his witness. Notwithstanding that, he chose not to
come. Arguing further, he submitted that the first defendant's evidence clearly
indicated that his wife was also in the car at the time of the incident. She too,
he said, was never called to testify for the first defendant. Concluding his
argument, he placed reliance on the case of See Keng Wah v. Lim Tew Hong
[1955] 1 MLRH 409; [1957] MLJ 137, urging the court to involve an adverse
inference pursuant to s 114(g) of the Evidence Act 1950.
[54] Upon perusal of the written submissions filed herein, there appears clear
that learned counsel for the defendants made no address on the adverse
inference argument.
Analysis
[55] It hardly needs repeating that if a party has suppressed material evidence
in a trial, the court may exercise its discretion to draw an adverse inference
under s 114(g) of the Evidence Act 1950 against that party. It reads:
"114. Court may presume existence of certain fact The court may
presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events,
human conduct, and public and private business, in their relation to
the facts of the particular case....
The court may presume:
.....
(g) that evidence which could be and is not produced would if

produced be unfavourable to the person who withholds it;
....."
[Emphasis Added]
[56] It, however, should not be drawn unless the circumstances justify it. I
derive support for the preceding proposition from the observation by
Mohamed Azmi FJ in the case of Munusamy Vengadasalam v. PP [1986] 1
MLRA 292; [1987] 1 MLJ 492; [1987] CLJ (Rep) 221, wherein His Lordship
observed:
"It is essential to appreciate the scope of s 114(g) lest it be carried too

far outside its limit. Adverse inference under that illustration can only
be drawn if there is withholding or suppression of evidence and not
merely on account of failure to obtain evidence. It may be drawn from
withholding not just any document, but material document by a party
in his possession, or for nonproduction of not just any witness but an
important and material witness to the case."
[Emphasis Added]
[57] Reverting to the present case, I shall state here this. Whilst cross-
examining the Investigating Officer, learned counsel for the defendants made a
fleeting reference to the report purportedly lodged by the eye-witness. Be it
noted, however, that plainly, the report was not included in any of the
bundles. Plainly too, it was not produced during the trial, nor was it referred to
the Investigating Officer. And no less plainly, it was not introduced into
evidence through any witnesses on the stand. More plainly, the Investigating
Officer was not cross examined on the contents of the report. But most plainly,
the eye-witness failed to turn up in court, to testify in person on the veracity of
the same.
[58] Viewed cumulatively, there is, so I am driven to conclude, force in the

argument presented by learned counsel for the plaintiff that in such
circumstances, it is imperative to secure the presence of the eye-witness. His
presence on the witness stand would irrefutably clinch the issue at dispute and
indisputably tie up the loose end of the first defendant's version regarding the
accident. Furthermore, his evidence would doubtlessly stand as second to
none in terms of its corroborative value supporting the first defendant's
version. He never took the stand, however.
[59] Furthermore, and tellingly, the fact remains that the first defendant was
never deprived of his right to secure the attendance of the eyewitness. At the
time of trial, the eye-witness was neither unavailable nor unbeknownst to both
the defendants and his counsel. As appears from the notes of evidence, this
court exercised its discretion in granting the defendants' request for
adjournment (though vehemently objected by learned counsel for the plaintiff),
paving the way for the entry of the eye-witness's evidence. Simply put,
therefore, not only had the first defendant been afforded reasonable
opportunity to support the probability of his version through the eye-witness,
but his request for adjournment was never declined by this court.
Notwithstanding those, and much to his dismay, the eye-witness refused to
appear in court on the scheduled dates of the trial. Such a refusal is, as I see it,
a move of his choice, depriving the first defendant of the necessary support he
needs for his version of the accident. To my mind, that weakens the
probability of the first defendant's narrative, and renders his version to be less
inherently probable.
[60] Considering the arguments en masse, applying as I do the force of law in

Munusamy Vengadasalam (supra) and given the established facts, I, therefore,
reach a conclusion in the way that learned counsel for the plaintiff invited me
to, that this appears to be a fit and proper case to draw an inference under s
114(g) of the Evidence Act. And I add incidentally that I recognise the force of
learned counsel for the plaintiff's reliance on the observation by Chua J in See
Keng Wah (supra) wherein His Lordship observed, " The Court is entitled to
the best evidence available before it can be called upon for a decision and if the
defendant failed to call a material or essential witness and did not give any
explanation why such a witness was not called then, I think, the Court is
entitled to presume, in his absence, that the evidence of Han Hung Juan would
not support the defendant's case...".
[61] In arriving at that conclusion, I have not lost sight of the salutary
observation by Haidar Mohd Noor JCA in the case of Chan Yoke Lain
(Administrator of the Estate of Chong Yoke Fah, Deceased) v. Pacific & Orient
Insurance Co Sdn Bhd [1998] 2 MLRA 272; [1999] 1 MLJ 303; [1999] 1 CLJ
179, wherein His Lordship observed:
"Counsel for the appellant also submitted that the learned judge
should have invoked s 114(g) of the Evidence Act 1950 against the
respondent company for not calling David Lim or his clerk that the
signature on D2 was not that of the deceased when it was the evidence
of PW2 and PW3 that the deceased signed on both D1 and D2 on the
same day. The presence of David Lim or his clerk who filled up the
proposal forms would have cleared all doubt about the alleged non-
signature of the deceased on D2. Not only was David Lim or his clerk
not called, neither was any explanation given by the respondent
company as to the nonavailability of David Lim or his clerk who
should be in the best position to give evidence on the signature in D2.
The irresistible inference would be that if David Lim or his clerk is
called their evidence would be unfavourable to the respondent
company. We are of the opinion that counsel for the appellant was
justified on this point but unfortunately the learned judge thought
otherwise and declined to consider and invoke s 114(g) of the
Evidence Act 1950. Instead he went on a microscopic examination of
the evidence of PW2 and PW3 where obviously, due to lapse of time,
one cannot expect PW2 and PW3 to remember the minute details as
stated by the learned judge in concluding that the evidence of PW2
and PW3 could not be accepted on the signature issue."
[Emphasis Added]
[62] And I derive subsequent guidance from the eloquent observation by

Nallini Pathmanathan J (now FCJ) in the case of Sabah Shell Petroleum Co Ltd
& Anor v. The Owners of and/or Any Other Persons Interested In The Ship Or
Vessel The 'Borcos Takdir' [2012] 4 MLRH 560; [2012] 5 MLJ 515, wherein
Her Ladyship observed:
"This appears to be a fit and proper case for this Court to draw an
inference under s 114(g) because the Master here could have been
subpoenaed to give evidence by the Defendant. As stated above, the
Plaintiff has proved a prima facie case whether by the application of
res ipsa loquitur or by proving the basic elements of negligence. The
Master's evidence was not essential on these facts for Shell to establish
a prima facie case. As such the onus shifted to the Defendant to rebut
the inference of negligence that had arisen. The person best placed to
explain fully the events of the day would have been the Master.
Notwithstanding that the Master could have been called, the
Defendant chose not do so, stating that he was unco-operative. Given
the singular importance of his evidence and the failure of the
Defendant to subpoena him, the only conclusion that can reasonably
be drawn is that the Master's evidence, if produced, would affect the
Defendant adversely. Such an inference is accordingly drawn."
[Emphasis Added]
[See also Subry bin Hamid v. Husaini bin Tan Sri Ikhwan & Anor
[2006] 2 MLRA 210; [2006] 6 MLJ 229; [2006] 4 CLJ 50; [2006] 5
AMR 644].
(4) Issuance Of Traffic Summons
[63] Learned counsel for the plaintiff submitted that the evidence shows that
the plaintiff was issued a traffic summons pursuant to r 10 LN166/59. Arguing
further, he attached significant reliance on s 121 of the Road Transport Act
1987 (the RTA), asserting that the plaintiff refused acceptance of the summon
and denied any liability.
[64] Whereas, learned counsel for the defendants submitted that the fact that
the plaintiff refused acceptance of the respective summons did not in any way
absolve or relinquish the plaintiff's liability under negligence.
Analysis
[65] The Investigating Officer admitted under oath that his reason for issuing
the summons against the accused was merely due to the lodgement of the
report by the plaintiff and the eye-witness. For clarity, his evidence during re-
examination reads:
"S: Sarjan, tadi peguam bijaksana telah bertanya kenapa saman telah
dikeluarkan. Sarjan telah mengatakan berdasarkan laporan polis yang
dibuat oleh pemandu motokar, dan juga laporan daripada saksi bebas,
saya dapati plaintif masuk ke dalam laluan defendan. Jadi berdasarkan
laporan polis yang dibuat, itu lah anggapan yang Sarjan telah buat,
plaintif telah masuk laluan defendan, betul?
J: Betul.
S: So, hanya kerana berdasarkan kedua - dua laporan polis ini lah?
Setuju Sarjan?
J: Ya.
[66] Irrespective of that, the fact remains that the eye-witness, whose report
was lodged four days after the accident, failed to turn up for the trial to testify
for the defendants despite the opportunity granted by this court (See
paragraphs [57] to [59] of this judgment).
[67] Suffice it, therefore, to say that the premise of the Investigating Officer's
decision to issue the respective summons was not essentially based on his
investigation but rather merely stemmed from the reports lodged by the
plaintiff and the eye-witness. In my opinion, such a decision was far from
decisive of the plaintiff's liability under the summons issued pursuant to r 10
LN166/59, as it was neither based on empirical evidence, nor was it based on
any unequivocal reasoning arising out of an all-inclusive evaluation of
accident circumstances and follow-up collision details.
[68] Indeed, and somewhat surprisingly, the Investigating Officer's decision to

issue the summons appears to run antithetical to the established facts drawn
from the evidence during the trial, particularly:
(i) the Investigating Officer's investigation concluded that the accident

debris was found residing at the plaintiff's lawful path of the road;
(ii) the Investigating Officer's investigation concluded that there was

no accident debris found residing at the plaintiff's lawful path of the
road;
(iii) the photographic evidence shows that the accident debris resided
at the plaintiff's lawful path;
(iv) the sketch plan indicates that the accident debris resided at the
plaintiff's lawful path.
[69] Coalescing the preceding threads together, I respectfully find the relevant
pieces of evidence are overwhelmingly positive for the plaintiff. Equally
respectfully, I find such a decision to be insufficiently founded on the
necessary appreciation of the details of the investigation. Thus, I find myself in
a respectful agreement with learned counsel for the plaintiff, whose argument
applied most vigour to the stance that the issuance of the respective summons
has no bearing on the plaintiff's liability in the accident.
[70] And I would add in a similar vein, I have well in mind that summons is
not conclusive of liability. That position is apparent from cases of Mohd Salleh
Samad v. Zainuddin Dongking [2001] 4 MLRH 113; [2002] 1 CLJ 139, Rozita
Ahmad & Yang Lain lwn. Mohd Yusof Saidin & Satu Lagi [2015] MLRHU 1170
and Annamalay Retnam v. Mah Chong Peng & Anor [2010] 1 MLRA 662;
[2010] 6 CLJ 487. But it also merits attention that, although not conclusive of
liability, it is however a very telling fact (See Bong Chee Min v. Jacknoris
Golinjun [2020] 2 MLRH 204).
[71] Echoing the above proposition, I state below s 68(3) of the RTA which, so
far as material, reads:
"68. Highway code
(3) Failure on the part of any person to observe any provisions of the
highway code shall not of itself render that person liable to criminal
proceedings of any kind, but any such failure may in any proceedings,
whether civil or criminal, be relied on by any party to the proceedings
as tending to establish or to negative any liability which is in question
in those proceedings." (See also Thanalakshmi Muchan v. Ong Koi Soi
[2009] 1 MLRH 470; [2009] 10 CLJ 735)
[72] And of parallel relevance, the observation by VT Singham J in the case of

Ong Cheng Wah v. Supramaniam a/l Arjunan [2001] 2 MLRH 1; [2001] 4 CLJ
202, wherein His Lordship observe "any breach of the provisions of the
Highway Code which is directly relevant to the facts of the case is prima facie
evidence of negligence..." (See also: Chan Peng Fook v. Kan Pak Lee [1974] 1
MLRH 355; [1974] 2 MLJ 197; and Yahaya Bin Mat & Anor v. Abdul Rahman
bin Abu [1982] 1 MLRA 179; [1982] 1 MLJ 202; [1982] CLJ (Rep) 363).
[73] Further, I shall state, albeit briefly, that so far as concerns learned counsel
for the plaintiff's reliance of s 121 of the RTA, I respectfully find such a
reliance to be lesser in force. I reason it this way. Section 121 of the RTA,
reads:
"121. Plea of guilty by letter and compounding shall not affect

provision of policy of insurance
Where any person has compounded an offence or pleaded guilty by

letter to an offence under this Act, no evidence of any such act shall be
admissible in any civil proceedings arising out of the same transaction
as the said offence and he shall be deemed not to have thereby
committed, by reason only of so doing, a breach of any condition of
any policy of insurance relating to admission of liability without the
consent of the insurers."
[74] As is markedly noticeable, s 121 of the RTA deals with a scenario in

which a person has compounded an offence or pleaded guilty by letter to an
offence under the RTA. Such a scenario is strikingly at odds with the reality of
the present case. Manifestly here, not only had the plaintiff never compounded
nor pleaded guilty to the summons but also never had he acknowledged
acceptance of the same. That, in my respectful, sufficiently puts the argument
into a quietus.
(5) Whether The Plaintiff Was Contributory Negligent?
[75] Learned counsel for the plaintiff submitted that the accident was caused
solely by the first defendant's negligence. On that premise, he concluded that
the plaintiff was in no way to blame for the collision.
[76] Whereas, as derives from their defence, the defendants pleaded, Defendan
- Defendan menegaskan bahawa kemalangan tersebut diakibatkan ataupun
disumbangkan oleh kecuaian Plaintif di dalam memandu/menunggang
m/sikal BLB 4342..."
Analysis
[77] I find it apposite to state, at this point, a succinct and concise summation
of the law by Faizah Jamaludin J concerning the authoritative precedents on
contributory negligence in the High Court case of Gurisha Taranjeet Kaur &
Anor v. Dr Premitha Damodaran & Anor [2020] MLRHU 754; [2020] 9 MLJ
409; [2020] 6 CLJ 446, wherein Her Ladyship observed:
"[122] What is contributory negligence and what is the test to

determine whether there was contributory negligence? Clerk & Lindsell
on Torts, 12th edn, Sweet & Maxwell, referring to Ellerman Lines Ltd
v. H & G Grayson Ltd [1919] 2 KB 514 at 535; and [1920] AC 466 at
477; Lewis & Denye [1939] 1 KB 540 at 544; Davies v. Swan Motor Co
(Swansea) Ltd [1949] 2 KB 291 at 309; Jones v. Livox Quarries Ltd
[1952] 2 QB 68 at 615 states that:
Contributory negligence does not mean that claimant commits

a breach of duty towards the defendant,... it means that the
claimant failed to use reasonable care for his own safety and
so contributed to his own damage.
[123] The Federal Court in Ong Ah Long v. Dr S Underwood [1983] 1

MLRA 154; [1983] 2 MLJ 324; [1983] CLJ (Rep) 330 held that the
learned High Court Judge had applied the correct test in determining
whether there was contributory negligence. Syed Agil Barakbah FJ at p
304 (CLJ); p 327 (MLJ) held:
The learned Judge applied the correct test in that the appellant
had failed to prove that the respondent did not on his own
interest take reasonable care of himself and contributed by that
want of care to his own injury. [Lewis v. Denye [1939] 1 All
ER 310]. The test for contributory negligence in the case of a
pedestrian is not whether he is under a duty of care towards
the defendant, but whether he was acting as a reasonable man
and with reasonable care. (Per Denning LJ in Davies v. Swan
Motor Co [1949] 1 All ER 620.)
[Emphasis Added]
[124] In Ong Ah Long, the Federal Court referred to an English Court

of Appeal case of Lewis v. Denye [1939] 1 All ER 310, where the court
held:
In order to establish the defence of contributory negligence,

the defendant must prove (i) that the plaintiff failed to take
"ordinary care for himself," or, in other words, such care as a
reasonable man would take for his own safety, and (ii) that his
failure to take care was a contributory cause of the accident.
The doctrine of contributory negligence "cannot be based
upon a breach of duty to the negligent defendant": Craze v.
Meyer-Dumore Bottlers' Equipment Co Ltd, Salmond on Torts,
9th Edn, at pp 472, 473, and Grayson (H & C) v. Ellerman Line
Ltd, per Atkin LJ, at pp 535, 536.
[Emphasis Added]
[125] In Jones v. Livox Quarries LD [1952] 2 QB 608, Lord Denning

said the following as regards contributory negligence:
Although contributory negligence does not depend on a duty

of care, it does depend on foreseeability. Just as actionable
negligence requires the foreseeability of harm to others, so
contributory negligence requires the foreseeability of harm to
oneself. A person is guilty of contributory negligence if he
ought reasonably to have foreseen that, if he did not act as a
reasonable, prudent man, he might be hurt himself; and in his
reckonings he must take into account the possibility of others
being careless.
Once negligence is proved, then no matter whether it is

actionable negligence or contributory negligence, the person
who is guilty of it must bear his proper share of responsibility
for the consequences. The consequences do not depend on
foreseeability, but on causation. The question in every case is:
What faults were there which caused the damage? Was his
fault one of them?
[Emphasis Added]
[126] The test in Jones v. Livox Quarries LD, was adopted by Lamin
Yunos J (as he then was) in Ruhani Mohiat & Anor v. Abdul Karim
Mat Ali & Anor [1993] 2 MLRH 301; [1993] 3 CLJ 524; [1993] 2
AMR 1339"
[78] Having collated and assessed most carefully the preceding authorities, Her
Ladyship tersely observed:
"[127] It is clear from these aforementioned cases that contributory

negligence is not based on the claimant's duty of care to the negligent
defendant. It is dependent on whether the claimant ought to have
reasonably foreseen the harm to himself if he failed to take reasonable
care of himself. A person is contributory negligent for the harm caused
to himself if he ought reasonably to have foreseen the injury and he
did not take reasonable care of himself."
[79] Having gone through the evidence with a fine-tooth comb, I respectfully
find the first defendant wholly to blame for the accident. And with equal
respect, I find that there is no contributory negligence that could be attributed
to the plaintiff. I reach the view for the following two brief reasons:
[80] First, and as found in the earlier segment of this judgment, the plaintiff's
version regarding the occurrence of the accident on the plaintiff's lawful path
of the road stands more inherently probable than that of the first defendant.
That, in the circumstances, reasonably gives rise to an inference that the
plaintiff had taken reasonable care for his safety.
[81] Second, the plaintiff made it clear in evidence that he applied the brake in
his attempt to avoid the collision, but to no avail. His witness statement reads:
"S: Apakah tindakan En bagi mengelak kemalangan dari berlaku?
J: Saya telah cuba brek dan mengelak tetapi berlaku kemalangan juga"
[82] Learned counsel for the defendants gave the plaintiff the third degree in
regard to his brake application evidence. Upon fervent cross - examination, the
plaintiff, however, remained adamant on the witness stand, stressing that he
had indeed applied his brake at the material time. His evidence runs:
"S: So, statement Encik, jawapan Encik Simon yang mengatakan

bahawa saya telah cuba brek dan mengelak tidak betul?
J: Tidak
S: Sebab you kata you tidak nampak kan?
J: Saya sudah elak. Tapi dekat baru saya nampak.
S: So bila? Bagitahu mana? You ada nampak kereta lepas itu you
mengelak, atau bila kemalangan berlaku saja you nampak kereta.
Mana yang betul?
J: Dia elak, dia elak anjing, dia masuk saya punya laluan. Saya pun
elak memang tidak boleh.
S: So saya nampak la?
J: Ya, dia sudah langgar saya."
[83] Re - examined, the plaintiff testified:
"S: Tadi peguam tanya banyak soalan bahawa sebenarnya you yang
masuk jalan kereta, boleh bagitahu Mahkamah apa cerita sebenar?
J: Saya lalu saya punya laluan motor juga.
.....
J: Elak.
Mah: Saya lalu saya punya laluan motor.
.....
J: Dia elak anjing, langgar saya.

S: Yang datang di depan?
J: Ya.
.....
S: Masuk?
J: Masuk ke laluan saya."
[84] In my judgment, it was the first defendant who had, in the circumstances,
created the agony of the moment, and no contributory negligence ought to
have been, in the circumstances, attributed to the plaintiff. The plaintiff's
action was a reasonable reactionary response under the circumstances. More
importantly, there was nothing to suggest any other reasonable evasive or
collision avoidance actions that the plaintiff could have taken in the agony of
the moment. The plaintiff, who had the right of way, ought not to have, in the
circumstances, reasonably foreseen the first defendant's sudden swerving to his
lawful path of the road. Indisputably, therefore, he was entitled to assume that
the first defendant would travel straight to the north of the sketch plan. Given
the defined factual sphere, I respectfully find that the plaintiff had taken
reasonable care for his safety. And he could not, in the circumstances, have
reasonably avoided the consequence of the negligent act of the first defendant.
This is particularly so when the plaintiff's evidence clearly shows that he had
applied his brake at the material time.
Summing Up
[85] Weighing the whole compass of the evidence, I respectfully find that there
was no contributory negligence that could be attributed to the plaintiff. And
with equal respect, I find that the plaintiff had taken reasonable care for his
safety and had not contributed to the accident. My conclusion, therefore, for
the reasons set out earlier, I respectfully agree with the argument advanced for
the plaintiff that the first defendant was wholly to blame for the accident.
(B) Arguments On Quantum
[86] Guidance on the law as regards assessment of quantum of damages may

be extracted from the salutary statement of principles established in a catena of
authoritative judicial precedents concerning the subject directly in concern.
They include the following:
(i) Inas Faiqah Mohd Helmi (A Child Suing Through His Father And
Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors
[2016] 1 MLRA 647; [2016] 2 MLJ 1; [2016] 2 CLJ 885; [2016] 1 PIR
16; [2016] 2 AMR 217. In delivering the judgment of the Federal
Court, Abdul Hamid Embong FCJ observed:
"It is trite that damages serve as compensation, not a reward,

less still a punishment (see Ong Ah Long v. Dr S Underwood

[1983] 1 MLRA 154; [1983] 2 MLJ 324; [1983] 2 CLJ 198;
[1983] CLJ (Rep) 300). In assessing damages, the court should
not be motivated by sympathy and award fair compensation
based on cogent evidence. The court should not descend into a
domain of speculation. The evaluation of those evidence,
which form the basis of any risk of future damage, must
therefore still be undertaken. And the trial judge can only
evaluate such evidence based on the recognised balance of
probabilities standard."
(ii) Sam Wun Hoong v. Kader Ibramshah [1980] 1 MLRA 712; [1981] 1
MLJ 295. In delivering the judgment of the Federal Court, Mohamed
Azmi J observed:
"In an action for personal injuries, there are two classes for
damages which have to be considered- special damage which
has to be specially pleaded and general damage which need
not be specially pleaded. In both classes of damages, the
burden of proof based on the balance of probabilities in the
evidence, lies on the plaintiff. Special damage consists out - of
- pocket expenses,.., and is generally capable of substantially
exact calculation."
General damage comprises damage for pain and suffering,

loss of amenities and the like which the law implies, and in
certain cases where the injuries suffered are such as to lead to
continuing or permanent disability, it includes future loss of
earnings and loss of earning capacity. Under the heading of
pain and suffering and loss of amenities, the quantum is
mainly assessed on the nature of injuries sustained and the
period of hospitalisation, and in arriving at a figure, the court
is guided by previous awards in cases involving similar type of
injuries with allowances being given as to the plaintiff's age,
marital status, his special position socially or in business,
depreciation or appreciation of money value and other
relevant circumstances."
(iii) Guan Soon Tin Mining Co v. Wong Fook Huan [1968] 1 MLRA
757; [1969] 1 MLJ 99. In delivering the judgment of the Federal
Court, One Hock Thye FJ observed:
"The respondent, as plaintiff, of course had to discharge the

burden of proving both the fact and the amount of damages
before he could recover. Where he succeeded in proving
neither fact nor amount of damage he must lose the action or,
if a right was infringed, he would recover only nominal
damages. Where he succeeded in proving the fact of damage,
but not its amount, he would again be entitled to an award of
nominal damages only."
(See also: Tahan Steel Corp Sdn Bhd v. Bank Islam Malaysia
Bhd [2012] 2 MLRA 361; [2012] 2 MLJ 314; [2012] 1 CLJ
959)
(iv) Raji Transport Sdn Bhd v. Idayu Zukafli [2004] 1 MLRH 552;
[2004] 5 CLJ 479. In delivering the judgment of the High Court, Low
Hop Bing HCJ (later JCA) observed:
"The considerations of inflation and enhanced cost of living

over a period of more than two decades since the decision in
Lau Ee Ee, supra , should be given proper weight in the
assessment of quantum of damages in personal injury
litigation. Indeed, it is instructive to note that our courts have
also moved ahead with the times in these areas. Chan Shick
Chin, a very senior member of the Bar, in his concise and well
- researched book on " Personal Injury, Law, Practice and
Precedents" published by MLJ in 2001 at p 47 wrote:
vii Fall in value of money
The fall in the value of money must be taken into

account in the use of comparables so that an award
which is eventually given would be reflective of the
current value of money: 162: Abdul Ghani Hamid v.
Abdul Nasir Abdul Jabbar & Anor [1995] 2 MLRH
795; [1995] 4 MLJ 182; [1995] 4 CLJ 317.
The judgment of Abdul Malik Ishak J in Abdul Ghani

(supra), is in line with the trend in Singapore where
Choor Singh J in delivering the judgment of the Court
of Appeal also considered changes in the value of
money, the decrease in the purchasing power of the
dollar there or the increase in the cost of living over
the years, as relevant factors in the assessment of
damages. A similar approach was adopted by Yusoff J
in Wong Tin Vui v. Patrick Midok & Anor [1974] 1
MLRH 426; [1975] 2 MLJ 260.
I am of the view that these time - honoured principles

have become entrenched and settled principles which
should continue to apply as they are in keeping with
economic reality."
(See also: Ahmad Thaqif Amzar Ahmad Huzairi v.

Kuala Terengganu Specialist Hospital Sdn Bhd & Ors
[2020] MLRHU 1973; [2021] 9 MLJ 10; [2021] 3 CLJ
389, Muhamad Qamarul Munsyiaqbal @ Yusri v. Md
Nor Md Zain & Anor [2020] MLRHU 121 and Soo
Hoo Seng Koon v. Lee Seng & Anor [2020] 2 MLRA
708; [2020] 3 MLJ 405)
(v) Abdul Waffiy bin Wahubbi & Anor v. A K Nazaruddin bin Ahmad
[2017] MLRHU 1878; [2017] 2 PIR 1. In delivering the judgment of
the High Court, S Nantha Balan J (now JCA) observed:
"It is axiomatic and imperative that when awarding damages

for pain and suffering for personal injuries, the court must
endeavour to ensure that the sum awarded falls within the
range as stipulated in the Compendium and it would be wrong
for trial courts to ignore the range of damages as
recommended in the Compendium and to pluck a quantum
from the air and make an award for a particular injury which
does not resonate with the range in the Compendium.
... it is the duty of counsel on both sides to guide the court to

make an award which falls within the range as provided in the
Compendium. Of course, even then there has to be medical
evidence to support an award which leans towards either the
higher or lower end of the range. Having said that, I do accept
that the Compendium is not a statutory code but only a
guideline which does not fetter the court's discretion and that
the court is, subject to exceptional factual circumstances, at
liberty to depart from the Compendium. But, it would take
compelling and extenuating facts (medical evidence) to
persuade a court to depart from the Compendium. Otherwise,
the Compendium will be rendered useless in so far achieving
consistency in awards for damages for personal injuries."
(See also: Kim Lin Chan v. Lee Hua Sing [2019] MLRHU
1230)
(iv) Muhammad Zulkarnain Mohamed Rokani & Ors v. Pengarah

Hospital Sultan Ismail Johor Bahru & Ors [2020] MLRHU 1071; [2021]
8 MLJ 762. In delivering the judgment of the High Court, Evrol
Mariette Peters JC observed:
"The amount of compensation awarded must, therefore, be

reasonable and just. Reference on this point may be made to
Ong Ah Long v. Dr S Underwood [1983] 1 MLRA 154; [1983]
2 MLJ 324; [1983] CLJ (Rep) 300, which has been adopted by
numerous cases, including Antonina Marleen Yarendra v. Chai
Wei Chung [2018] 2 MLRA 225; [2017] 4 MLJ 359. In the
former case, it was stated by Syed Agil Barakbhah FJ:
Damages for personal injuries are not punitive and

still less a reward. They are simply compensation that
will give reparation for the wrongful act and for all the
natural and direct consequences for the wrongful act,
so far as money can compensate. British Transport
Commission v. Gourley (supra) and H West & Son Ltd

v. Shepard [1963] 2 All ER 625. The award under
general damages should be a global sum
commensurate with the injury sustained and not a full
compensation which might result in ruinous
consequences to the defendant...
[50] In that sense, the Court must remain vigilant so as not to

invite, condone and engender abuse in the way of
manipulating of claims, which is not what damages are for."
[87] Against the breadth of the preceding statement of principles, I proceed to

consider the quantum of damages.
General Damages
[88] Standing back from the details and summarising the quantum of damages,
I attach below the table of awards granted in the present case.
Special Damages
General Damages
Medical Reports
[89] Before considering the quantum of damages, I find it beneficial to address

the medical reports directly under contemplation. As I shall note presently,
there are several medical reports which provide insight into the injuries
sustained by the plaintiff arising out of the accident, namely:
(i) Banting Hospital Medical Report dated 21 November 2018 issued

by Dr Dr Muhd Nazrin b Mohd Radzuan of Banting Hospital (the
Banting Hospital Medical Report);
(ii) The plaintiff's Specialist Medical Report dated 26 October 2022

issued by Dr Hj Mohd Noor Manukaran of Manu Orthopaedic &
Trauma Clinic (the plaintiff's Specialist Report).
[90] It is worth highlighting that learned counsel for the defendants had at pp
11 and 17 of her written submission dated 25 February 2022 drawn reference
to a document known as the Defendants' Specialist Report which, according to
her, was included in Bundle E. Irrespective of that, it appears clear upon close
scrutiny that Bundle E refers to "Ikatan Dokumen-Document Tambahan
Plaintif (4)". It was not reflective of the Defendant's Specialist Report. And in
reality, the respective report was not in any way constitutive of the defendants'
trial document: it was never included in any trial bundles, nor was it part of
the court's records, and nor even was there any proof of filing of the same.
The Plaintiff's Residual Disabilities
[91] Of direct relevance, I reproduce below the residual disabilities (as

established in the Plaintiff's Specialist Report), which form the underlying
basis for damages assessment directly in concern. So far as relevant, they are as
follows:
"...
3) The injuries had healed with the following disabilities:
a) Pain in the right thigh during cold weather.
b) Internal rotation deformity of the right thing.
c) Pain in the right knee on exertion.
d) Anterior cruciate ligament laxity of the right knee.
e) Pain in the right ankle and the right foot on walking.
f) Shortening of the right leg.
g) Stiffness of the right knee and the right ankle.
h) Equinus deformity of the right ankle.
i) Swelling of the right ankle.
j) Wasting of the right thigh and the right calf.
k) Inability to squat or to sit cross-legged.
l) Inability to walk around freely.
m) Inability to lift heavy weights.
n) Unsightly scars."
Approaching The Claim Headings
[92] Guided by the precepts that emanate from the earlier-referred

observations and keeping in view the medical opinions laid down in the
respective reports, I shall forthwith consider the following heads of damages
centrally relevant to the present case.
(1) Deploying Injury Of The Right Elbow
[93] Learned counsel for the plaintiff submitted that the plaintiff suffered a
degloving injury of the right elbow arising out of the accident. He submitted an
amount of RM15,000.00. The comparable award relied upon was the case of
Assokumar a/l Benugopal @ Ramus v. Lai Bak Seng & Anor [2020] 2 PIR 25;
wherein the Sessions Court awarded RM15,000.00 for degloving injury. (See
also the High Court decision affirming the amount awarded by the Sessions
Court Judge - Lai Bak Seng Dan Satu Lagi v. Assokumar A/L Venugopal @
Ramus [2021] MLRHU 217)
[94] Learned counsel for the defendants submitted an amount of

RM17,000.00.
[95] Having set the scene of the arguments, I shall then descend to the medical
reports directly in concern.
[96] The Banting Hospital Medical Report states:
"Diagnosis (Diagnosis):
DEGLOVING INJURY OF RIGHT ELBOW..."
[97] So far as material, the plaintiff's Specialist Report states:
"OPINION
.....
2) The injuries were:
- Degloving injury of the right elbow.
....."
[98] So too, I direct my attention to the Revised Compendium of Personal

Injury Awards (the Compendium) which provides:
[99] Assessing the award to be granted, I place emphasis on the strength of the
authorities cited in the arguments. Further, I subscribe to the High Court case
of K Sures Kuppusamy v. Khairul Azmi Tarmizi [2019] MLRHU 509, wherein
Anselm Charles Fernandis JC (now J) affirmed the amount of RM15,000.00
granted by the Sessions Court Judge for degloving injury left elbow.
[100] Considering the preceding arguments, the prevailing evidence, the range
of awards in the Compendium, the comparative awards for similar injury and
usual trends, the plaintiff's residual disabilities, as well as the facts and
circumstantial peculiarities of the case in its entirety, I award RM15,000.00 for
the degloving injury of the right elbow.
Grade 2 Open Fracture Of The Right Femur
grade 2 open fracture of the right femur arising out of the accident. He
submitted an amount of RM40,000.00. The comparable award relied upon
was the case of Azmadarmawi Saupi v. Mohd Zamri Abu Bakar & Anor [2020]
PILRU 21; [2021] 1 PIR 45, wherein the court awarded RM40,000.00 for
grade 2 open fracture of the right femur.

RM32,000.00.
[103] Having set the scene of the arguments, I shall then descend to the
medical reports directly in concern.
.....
GRADE 2 OPEN FRACTURE RIGHT FEMUR
....."
[105] So far as material, the plaintiff's Specialist Report states:
"OPINION
2) The injuries were:
.....
- Grade 2 open fracture of the right femur
.....
1) The fracture if the right femur had malunited with internal rotation
deformity of the right thihg. The pain in the right thigh is due to the
fracture and to the implants...."
[106] The Compendium provides:
[107] Assessing the award to be granted, I place emphasis on the strength of

the authorities cited in the arguments. Further, I subscribe to the High Court
case of Sia Wei Yong & Anor v. Mohamad Farhanizar Yusoff [2019] MLRHU
1864, wherein the High Court affirmed the amount of RM40,000 granted by
the Sessions Court Judge for such an open fracture injury.
[108] It further appears clear to my mind that the amount of RM40,000.00 was
not unreasonable given that a closed comminuted fracture of the right femur
(the degree of which is less serious than open fracture) with no shortening was
awarded RM45,000 in the case of Khairul Azwan b Abdullah v. Khairol Azman
b Ibrahim [2012] PILRU 28; [2013] 2 PIR 4 and a grade 2 open fracture
midshaft of the right femur with no shortening was awarded RM40,000 in the
case of Sujin ak Kudang v. Kho Min Huat [2008] PILRU 95; [2008] 2 PIR 24.
circumstantial peculiarities of the case in its entirety, I award RM40,000 for
grade 2 open fracture of the right femur.
(3) Grade 3B Open Fracture Of The Right Tibia And Fibula
grade 3B open fracture of the right tibia and fibula arising out of the accident.
He submitted an amount of RM40,000.00. The comparable award relied upon
was the case of Hasbi bin Omar v. Nui Chai Kian [2021] 2 PIR 46, wherein the
court awarded RM50,000.00 for grade 3B open fracture of right tibia and
fibula complicated with infected wound at pin site, osteomyelitis and 1.48 cm
shortening.

RM32,000.00.
medical reports directly in concern.

.....
GRADE 3B OPEN FRACTURE RIGHT TIBIA FIBULA
....."
[114] So far as material, the Plaintiff's Specialist Report states:
"OPINION
.....
3. The injuries were:
.....
Grade 3B open fractures of the right tibia and the fibula.
....."

the authorities cited in the argument. Further, I refer to the case of Chin Quek
Ton [2008] PILRU 14; [2009] 1 PIR 13 65 where the court awarded
RM30,000.00 for closed fracture of the right tibia. As well, I place reliance on
the case of Teo Peik Ngee v. Saidi Muda & Anor [2008] PILRU 98; [2010] 1
PIR 10 where the court awarded RM30,000.00 for closed comminuted fracture
medial condyle of left tibia. In my assessment, I bear in mind that the
preceding awards so cited were granted pursuant to the range of awards
stipulated in the former compendium, rather than the present one, wherein the
range is relatively higher. Also, I have well in mind that the preceding injuries
concern not an open fracture but instead a closed fracture to tibia. Moreover, I
consider the fact that the preceding injuries concern only tibia, rather than the
present case which concerns both tibia and fibula. And finally, I draw
reference to the case of Tuan Ahmad Syahir b Tuan Dahalan v. Chin Kiew Moi
& Anor [2008] PILRU 99; [2008] 2 PIR 45, where the court awarded
RM45,000 for open fracture of the left tibia and fibula.
usual trend, as well as the facts and circumstantial peculiarities of the case in
its entirety, I award RM40,000.00 for grade 3B open fracture of the right tibia
and fibula.
Anterior Cruciate Ligament Injury Of The Right Knee
[118] Learned counsel for the plaintiff submitted that the plaintiff suffered
anterior cruciate ligament injury of the right knee arising out of the accident.
He submitted an amount of RM20,000.00. The comparable award relied upon
was the case of Ajit Kumar a/l Arumugam v. Tee Wi Tiow @ Tay Kuan Tok
[2021] 1 PIR 24, wherein the court awarded RM20,000.00 for right posterior
cruciate ligament injury.

RM18,000.00.
medical report directly in concern.
[121] So far as material, the Plaintiff's Specialist Report states:
"OPINION
The injuries were:
.....
- Anterior cruciate ligament injury of the right knee"

the authorities cited in the arguments. I, too, subscribe to the High Court case
of Sabri Abdul Talib & Anor v. Tiong Mee Kooi & Another Cases [2021]
MLRHU 2129, wherein Evrol Mariette Peters JC (now J) affirmed the amount
of RM20,000.00 for posterior cruciate ligament (PCL) of the left knee and the
amount of RM20,000.00 for left anterior cruciate ligament (ACL) granted by
the Sessions Court Judge. Next, I refer to the case of Nik Shamerul Hafizi Nik
Mazlan & Anor v. Khairulanwar Nawi & Anor [2020] MLRHU 2233, wherein
Abdul Wahab Mohamed J affirmed the amount of RM25,000.00 for anterior
cruciate ligament laxity granted by the Sessions Court Judge. On the same
strain, I subscribe to the High Court case of Muhammad Yazid Tasra & Satu
Lagi v. Purwanto Purwadi & Satu Lagi [2020] MLRHU 113, where Abd Majid
Haji Tun Hamzah J awarded RM20,000.00 for laxity of medial collateral
ligament of the left knee. Similarly, I refer to the case of Mohd Rizal Bin Abdul
Gani v. Heng Mohd Wah [2017] PILRU 33; [2017] 1 PIR 53, where the court
awarded RM20,000.00 for grade 2 laxity of the posterior cruciate ligament of
the left knee. I moreover place reliance on the case of Puvendran a/l
Rajamanickam v. Muhammad Ammar Bin Adenan [2017] PILRU 53; [2017] 1
PIR 55, where the court awarded RM25,000.00 for posterior cruciate
ligaments laxity of the right knee.
anterior cruciate ligament injury of the right knee.
(5) Multiple Scars
[125] Learned counsel for the plaintiff submitted that the plaintiff sustained 9 x
2 cm and 10 x 6 cm degloving scar, 12 x 1 cm scar on right iliac crest, 5 x 1 cm
and 2 x 1 cm right hip, 8 x 1 cm scar mid-thigh, 18 x 15 cm skin donor scar left
thigh, 18 x 7 cm degloving scar right leg, 8 x 1 cm scar right leg and 18 x 2 cm
scar right calf, resulting from the accident. For shorthand purposes, I shall
refer to them as the multiple scars. He submitted an amount of RM30,000.00.
The comparable award relied upon was the case of Mohamad Hishyam bin
Hassan & Others v. Sathiaseelan a/l Nagappan [2018] MLRHU 2047, wherein
the High Court affirmed the award of RM30,000.00 granted by the Sessions
Court Judge for multiple permanent ugly scarring on left leg.
[126] Contrarily, learned counsel for the defendants submitted an amount of

RM10,000.00.
[127] Given the setting of the afore-stated arguments, I shall at present

scrutinise the report at the centre of concern.
[128] There appears no dispute that the plaintiff sustained multiple scars. As
reflects from the Plaintiff's Specialist Report, the plaintiff sustained:
"1) Scars (see photographs)
- 2 cm laceration scar on the chin.
- 9 x 2 cm and 10 x 6 cm degloving injury scar of the right elbow.
- 12 x 1 cm surgical scar over the right iliac crest.
- 5 x 1 cm and 2 x 1 cm surgical scars overs over the right hip.
- Twelve pin site scars over the right thigh and the right leg.
- 5 x 1 cm laceration scar of the right thigh
- 8 x 1 cm surgical scar of the right mid-thigh.

- 18 x 15 cm skin donor site scars of the left thigh.
- 18 x 7 degloving injury scar of the right leg. It is covered with the

split skin graft.
- 8 x 1 cm surgical scar over the lateral aspect of the right leg.
- 18 x 2 cm laceration scar of the right calf..."
[129] Also, I am guided by the succinct observation by Harmindar Singh

Dhaliwal JCA (now FCJ) in Jitweer Singh Ojagar Singh (supra) wherein His
Lordship observed, a judge must have regard to the direct evidence, whether in
the form of oral evidence or contemporaneous documents, and the overall
circumstances material to the issue at hand. The version more consistent with
these ought to be accepted as being more trustworthy and reliable.
Approaching the claim on that footing, I am, therefore, impelled to draw
reference to the relevant photographic evidence (pp 9 to 11 of the plaintiff's
Specialist Report), revealing a significant presence of the scars. Far from being
invisible to the naked eye, they are visibly detectable and considerably
pronounced. And though healing sign is apparent, the resultant scars are
definitely not aesthetically pleasing. Affiliated thereto, I respectfully find that
the multiple scars are not pre-existing, and they would not have existed but for
the injuries sustained in the accident. Any argument denying the plaintiff's
entitlement to such a claim is, in my view, a manifest affront to the plaintiff's
suffering.

the authorities cited in the arguments. On the same score, I draw reference to
the High Court case of Lariman Niuk v. Mohd Helmieza Suhaimi [2020]
MLRHU 1777, wherein Muniandy Kannyappan JC (now J) affirmed the
award of RM20,000.00 for multiple scars granted by the Sessions Court Judge.
Similarly, I refer to the case of Puah Pei Wen v. Goh Chee Wei [2019] MLRHU
1878, wherein Che Mohd Ruzima Ghazali J (now JCA) affirmed the award of
RM30,000.00 for multiple scars granted by the Sessions Court Judge.
[132] I find it apt to note briefly here that learned counsel for the plaintiff in his
argument relied on the ranges stated in the Compendium, ranging between
RM12,000.00 and RM24,000.00 as a means to support the plaintiff's claim
under this heading of injury. I respectfully find that such a reliance was based
on a false footing for the mere reason that the respective ranges are not for
extensive scarring to leg, but instead extensive scarring to arm. Be that as it
may, I also note here that such a false-footing reliance does not in any way
have any bearing, nor does it at any rate influence my finding concerning the
award for this heading of injury.
usual trends, as well as the facts and circumstantial peculiarities of the case in
its entirety, I award RM30,000.00 for the multiple scars.
(6) Muscles Wasting Of The Right Thigh And The Right Calf
[134] Learned counsel for the plaintiff submitted that the plaintiff sustained
muscles wasting. He submitted an amount of RM6,000.00 for muscles
wasting. The comparable awards relied upon were the case of Raj Kumar a/l
Tamilselvam v. Mohd Nooriman bin Abd Hamid & Anor [2018] PILRU 102;
[2019] 2 PIR 1, wherein the court awarded RM6,000. for muscles wasting.
[135] In contrast, learned counsel for the third defendant submitted that the
award to be granted for muscles wasting should be RM3,000.00.
[136] Having set the tone of the clashing arguments, I shall momentarily
descend to the specialist report at the heart of deliberation.
[137] The plaintiff's Specialist Report states:
"3) Measurements
.....
- Thigh girth measured 15 cm above the knee joint
Right 55 cm Left 56 cm
ie There is 1.0 cm of wasting of the right thing
- Calf girth measured 12 cm below the knee joint
Right 37.5 cm Left 40.5 cm
ie There is 3.0 cm of wasting of the right calf
....."

the authorities cited in the arguments. On the same strain, I refer to the High
Court case of Kim Lin Chan v. Lee Hua Sing [2019] MLRHU 1230, wherein
Evrol Mariette Peters JC affirmed the award of RM6,000.00 granted by the
Sessions Court Judge for muscle wasting. As well, I subscribe to the High
Court case of Lim Hock Boon v. Aw Chee Keong & Ors [2019] MLRHU 1844,
wherein Gunalan Muniandy J affirmed the award of RM5,000.00 granted by
the Sessions Court Judge for muscle wasting. Similarly, I attach reliance on
the High Court case of Bong Chee Min v. Jacknoris Golinjun [2020] 2 MLRH
204, wherein Evrol Mariette Peters JC affirmed the award of RM5,000.00
granted by the Sessions Court Judge for muscle wasting. And I adhere to the
High Court case of Leenesh Vijaya & Anor v. Yap Chiew Sun [2017] MLRHU
1502, wherein Mohd Ivan Hussein JC affirmed the award of RM5,000.00
granted by the Sessions Court Judge for muscle wasting.
usual trend, the plaintiff's residual disabilities as well as the facts and
circumstantial peculiarities of the case in its entirety, I award a total amount of
RM6,000.00 for muscles wasting of the right thigh and the right calf.
10% Reduction Argument - Overlapping
[141] And another further aspect deserves mention. It concerns the 10%
reduction argument. Learned counsel for the defendants threw down the
gauntlet in clear terms, submitting that the 10% reduction for overlapping
injuries should be imposed globally as regards the amounts awarded for
degloving injury of right elbow, grade 2 open fracture right femur, grade 3B
open fracture right tibia/fibula, laceration wound measuring 5 x 2 cm at right
thigh, scars, muscle wasting and grade II laxity of the anterior cruciate of the
right knee. In support, she tethered reliance to the cases of Abu Hassan bin Ali
v. Lee Peng Kong [1977] 1 MLRH 253; [1977] 2 MLJ 121, Seah Yit Chen v.
Singapore Bus Service (1978) Ltd & Ors [1990] 5 MLRH 605; [1990] 3 MLJ
144; [1990] 2 CLJ 901, Sitti Rajumah & Anor v. Mohd Rafiuddin Elmin [1996] 2
MLRH 890; [1996] 4 CLJ 274, Othman Ahmad v. Samsudin Hj Mohd Sani &
Yang Lain [1992] 1 MLRH 311; [1992] 1 CLJ (Rep) 529, Asokumar a/l
Venugopal @ Ramus v. Lai Bak Seng & Anor [2020] 2 PIR [25], Kamala a/p
Balachandran & Anor v. Mohd Lugman Hakim bin Shahrin [2020] 1 PIR 5 and
Mohamad Sabri Bin Aami v. Mohd Fahrudin bin Ishak & Anor [2020] 2 PIR 28.
[142] Considering the preceding argument as a whole, I respectfully find

myself in a regretful disagreement with the argument advanced for the
defendants. In my respectful view, the preceding injuries involve separate and
distinct parts of the body with different functions and abilities. Viewed
comparatively, I find that the distinguishable features are self-explanatory.
Clearly, the femur, the tibia and the fibula are three distinct and separate
bones. Clearly too, grade II laxity of the anterior cruciate of the right knee
concerns the joint between the thigh and the lower leg. No less clearly,
multiple scars are visible marks left on the skin. More clearly, the muscles
wasting is a loss of muscle mass, independent of the bones. But most clearly,
degloving injury of right elbow concerns the joint between the forearm and the
upper arm. Of course, the situation would have been otherwise had the injuries
or residuals been overlapping in nature. That, in my view, certainly attracts
different considerations triggering an alternative conclusion to the one I have
reached.
[143] Additionally, I have well in mind the force of the authorities cited by
learned counsel for the defendants as stated at paragraph [141] of this
judgment. But in the same breath, I, too, have in mind that an assessment of
damages depends on the specific factual context of the case.
[144] Given the medical opinion and the backdrop of the argument presented
before me, and weighing them with the facts and overall circumstances of the
case, I am driven to hold that the preceding injuries affect separate and distinct
parts of the first plaintiff's anatomy, in which case the element of overlapping
does not in the circumstances arise. Most relevantly for the present purposes is
the salutary observation by Yaacob Haji Md Sam HCJ (now JCA) as regards
the granting of separate awards in the High Court case of Reminder Kaur
Charan Singh (supra) where His Lordship having cited the remarks by Low
Hop Bing HCJ (later JCA) in the case of Tan Teck Hing & Anor v. Lee Yong
Kong & Anor [2003] 2 MLRH 87; [2003] 1 MLJ 599; [2003] 5 CLJ 400; [2003]
2 AMR 258, observed:
"Award oleh hakim sesyen bagi kecederaan-kecederaan yang

dirujukkan oleh peguamcara perayu dan responden adalah seperti
yang terdapat di ms 23 - 24 Rekod Rayuan Tambahan di mana hakim
sesyen memberikan award berasingan bagi setiap kecederaan tersebut.
Walau pun hakim sesyen tidak secara nyata dalam penghakiman
beliau mengatakan beliau ada menimbangkan hujahan berkaitan
pertindihan, tetapi beliau telah menyatakan terdapat faktor bagi award
berasingan diberikan (muka surat 24 rekod rayuan tambahan).
Mahkamah ini tidak mendapati hakim sesyen melakukan salaharahan
atau khilaf dalam penggunaan budibicara beliau apabila memutuskan
tidak memberikan potongan bagi pertindihan (overlapping).
Keputusan tersebut tidak melanggari prinsip undang-undang berkaitan
award bagi kecederaan. Tiada alasan yang kukuh untuk mahkamah
ini mencampuri atau mengubah keputusan tersebut."
[Emphasis Added]
[See also: Seah Yit Chen v. Singapore Bus Service (1978) Ltd & Ors
[1990] 5 MLRH 605; [1990] 3 MLJ 144; [1990] 2 CLJ 901, Lee Boon
Kiat v. Ng Sing [1981] 1 MLRH 450; [1982] 1 MLJ 229]
[145] In my considered opinion, therefore, the defendants could not, in the

circumstances, draw comfort from the preceding argument in their favour. All
in all, I respectfully find there is no justification for a 10% reduction of the
awards under the circumstances. And with equal respect, I find that the first
plaintiff is entitled to the awards in full without any deduction.
Special Damages
(1) Loss Of Earnings
[146] Learned counsel for the plaintiff submitted that the plaintiff did not
attend work for a period of 42 months, beginning September 2018 until March
2022. He submitted an amount of RM1,500.00 for loss of earnings per month,
totalling RM63,000.00. In support, he produced evidence of the plaintiff's
salary slips, detailing his salary prior to the accident.
[147] Rebutting the aforesaid stance, learned counsel for the defendants
submitted an amount of RM2,000 for the loss of earning. More specifically,
she stated, "Pihak Defendan berhujah plaintif hanya layak untuk kehilangan
pendapatan sebanyak RM2,000.00 sahaja..."
[148] From the conspectus of evidence led at the trial, the following material
facts become evident:
(a) Letter of appointment (Exhibit P11, pp 1 to 3 of the Additional

Bundle of Documents - E) issued by the Company confirming the
plaintiff's appointment for the post of General Worker in the
Company.
(b) The plaintiff's salary slips (Exhibit P13 - pages 5 to 6 of the

Additional Bundle of Documents - E) indicated the Plaintiff's monthly
salary prior to the accident. PW3 further confirmed in evidence that
the plaintiff's salary was approximately RM1,500.00 per month. His
evidence reads:
"S: Berapakah gaji yang dibayar kepada En Simon Raj setiap

bulan?
J: Gaji beliau adalah lebih dalam lingkungan RM1,500.00

sebulan bergantung kepada OT beliau..."
(c) PW3 confirmed in evidence that the plaintiff started working at the
Company from 30 July 2018 until 6 September 2018. He further
confirmed that the plaintiff did not work after the accident. His
evidence reads:
"S: Sudah berapa lama En Simon Raj bekerja di syarikat En?
J: Beliau telah bekerja pada 30 July 2018 sehingga beliau

terlibat kemalangan pada 6 September 2018.
S: Selepas kemalangan berapa lama En Simon Raj tidak

bekerja?
J: Selepas kemalangan Encik Simon tidak dapat bekerja

sehingga sekarang."
(d) PW3 confirmed in evidence that the plaintiff involved in the

accident and had been on medical leave. According to him, the
Company did not pay his salary as he was on medical leave for the
respective period. His evidence reads:
"S: Adakah semasa En Simon Raj dalam cuti sakit, syarikat

ada membayar gaji beliau?
J: Syarikat tidak membayar En Simon Raj semasa beliau

dalam cuti sakit sehingga sekarang"
(e) SP3 confirmed in evidence that the Company did not offer any
desk job or light duties to the plaintiff as there were not available at the
premises. Cross-examined, SP3 stated:
"S: Dia boleh desk job?
J: Tiada desk job.
S: Kerja ringan?
J: Tiada."
(f) PW3 confirmed in evidence that the plaintiff was a hardworking

employee and his working performance was good prior to the
accident. His evidence reads:
"S: Bagaimana prestasi beliau semasa bekerja dengan syarikat?
J: Prestasi beliau baik dan rajin bekerja."
(g) PW3 confirmed in evidence that the plaintiff could not perform his
work due to his leg injuries. His evidence reads:
"S: Bolehkah beliau bekerja sebagai pemandu m'kren dengan

kecederaan teruk di kakinya?
J: Memang tidak boleh kerana ia adalah kerja berat dan susah

naik m/ kren."?
[149] Given the aforementioned catalogue of evidence, I respectfully find that

the plaintiff had proven his loss of earnings and thus entitled to the same for
the following reasons:
[150] First, as reflected from the relevant pieces of evidence, the plaintiff
earned approximately RM1,500.00 per month prior to the accident. The
emphasis must, therefore and by necessity, be drawn to the salary earned
according to his employment contract. As is plain, the Company paid him the
respective amount on a monthly basis (as opposed to daily).
[151] Second, there appears clear that the plaintiff did not receive any salary
after the accident. Seen in the preceding context, I find no doubt that the
plaintiff's absence from work was due to the injuries sustained in the accident,
which resultantly triggers the collateral effect, impacting his employment
under the contract. On the whole spectrum of evidence, it seems reasonably
clear that had the plaintiff not been injured, he would have performed his
duties pursuant to the contract and received his salary in return.
[152] Considering the preceding argument, the prevailing evidence, judicial

precedent, the facts and circumstantial peculiarities of the case in its entirety, I
award the sum of RM1,500.00 for loss of earnings per month, totalling
RM63,000.00 for 42 months.
Loss Of Future Earnings V. Loss Of Earning Capacity
[153] Argument was advanced concerning the plaintiff's entitlement to loss of

future earnings, or in the alternative, loss of earning capacity, matters to which
I now turn.
[154] Learned counsel for the plaintiff submitted an amount of RM150,000.00

for loss of future earnings. In arriving at such an amount, he placed reliance on
s 28A(2)(c) of the Civil Law Act which, so far as material, reads:
"28A. Damages in respect of personal injury
.....
(2) In assessing damages under this section:
.....
(d) in assessing damages for loss of future earnings the Court

shall take into account that:
(i) in the case of a person who was of the age of thirty

years or below at the time when he was injured, the
number of years' purchase shall be 16; and
(ii) in the case of any other person who was of the age
range extending between thirty one years and fifty-
nine years at the time when he was injured, the
number of years' purchase shall be calculated by using
the figure 60, minus the age of the person at the time
when he was injured and dividing the remainder by
the figure 2."
[155] Moreover, he submitted "... based under the Act, it is clear that the
power of Multiplier is provided for under the Act and the calculation of the
purchase is also as provided by the Act. The fact that the Plaintiff is less than
30 years of age at the time of the accident, he will be entitled to the full
purchase of 16 years."
[156] Alternatively, he submitted that the court should allow the plaintiff's
claim for loss of earning capacity. According to him, "The Court in assessing
the future Loss of Earnings can also award Loss of Earning Capacity as
pleaded in the Plaintiff's pleading if future loss of earnings is not awarded as it
is conceivable that the Plaintiff would not be able to do heavy work as a crane
driver and general worker due to his extensive injury.".
that learned counsel for the defendants made no address on the costs to be
awarded for loss of future earning and/or loss of earning capacity.
Law On Loss Of Future Earnings And Loss Of Earning Capacity
[158] To begin with, I find it worthwhile to reproduce the pithy statement of

principles by Syed Agil Barakbah FJ in the case of Ngooi Ku Siong & Anor v.
Aidi Abdullah [1984] 1 MLRA 200; [1985] 1 MLJ 30; [1984] 1 CLJ (Rep) 294,
concerning the loss of future earnings and loss of earning capacity, wherein
His Lordship observed:
"Losss of future earnings and loss of earning capacity distinguished.
There is also a difference between loss of future earnings and loss of

earning capacity although both items are under general damages.
Future loss of earnings or loss of prospective earnings are awarded for
real assessable loss ie, loss that is capable of assessment at the date of
the trial. It must be proved by evidence and not by mere speculation.
In the absence of such evidence if the court is satisfied that the plaintiff
has suffered a loss of earning capacity, he will be awarded a sum as
part of the general damages for his disability suffered as a result of the
injuries sustained, instead of compensation for loss of future earnings.
It arises where there is a residual risk that the plaintiff might be thrown
out of work altogether at some future date. The risk must be real and
not speculative or fanciful. Any loss of money is relevant, whether the
money is properly described as "earnings" or not, provided that the
money is more than a "mere possible contingency. " Thus loss of
possible contract as opposed to loss of probable contract is not
recoverable. (See Kemp and Kemp on the Quantum of Damages, vol 1,
4th edn on pp 122 and 123)."
[See also Hj Ariffin Hj Ismail v. Mohamaad Noor Mohammad [2001] 1

MLRA 187; [2001] 2 CLJ 609]
(2) Loss Of Future Earnings
[159] Which therefore brings me to consider the issue of whether the plaintiff
is entitled to loss of future earnings?
[160] Having assessed the argument, mainly seen in conjunction with the
entire spectrum of the evidence, I respectfully find that the plaintiff's claim for
loss of future earnings should be refused. I reason it the following ways.
[161] First, the plaintiff's Specialist Report states, "14) Mr Simon Raj a/l
Thevadas Anbalagan has permanent disabilities of the right thigh, the right
knee, the right leg and the right ankle. He will have great difficulties in
undertaking jobs and activities those require lots of standing, walking, running,
jumping, climbing, squatting and carrying of weights....". There, therefore,
appears clear that the plaintiff could still perform his work-related activities, no
doubt, with some restrictions and challenges. That does not, in my view,
amount to "severe permanent impairment that would restrict her movement to
the extent that she can neither work nor is forced to seek a job that pays her
less than what she was receiving before the accident", to which James Foong
JCA (later FCJ) in Sumarni v. Yow Bing Kwong & Anor [2007] 3 MLRA 504;
[2008] 1 MLJ 608; [2008] 3 CLJ 489.
[162] Second, the mere fact that the Company had not assigned him any job as
there was no "desk job" available at its premises does not, by any stretch,
conclusively demonstrate his permanent and complete inability to gain any
employment in the future. As discernible from the specialist reports, he is
neither immobile nor in need of around- the-clock care. And nor even had he
had a critical disability that restricts his physical movement or affects his
physical coordination severely, permanently. Applying the words of James
Foong JCA (later FCJ) in Sumarni (supra), "The fact that she was not given an
extension in her last employment due to the motor accident... is only a factor
for the consideration in awarding loss of future earnings. But this alone is
insufficient. The plaintiff is required to prove real substantial loss with
reasonable amount of certainty".
[163] Third, no doubt mindful of the plaintiff's inability to perform his duties
without difficulty after the accident, it however appears clear to me that the
prevailing pieces of evidence lean towards offering less than ringing certainty
of his severe and complete physical restrictions or limitations to meet the
functional demands and needs of his preinjury role or similar.
[164] In arriving at the findings mentioned above, I adhere myself to the

salutary observation by James Foong JCA (later FCJ) in the Court of Appeal
case of Sumarni (supra), on the subject directly in concern, where His Lordship
observed:
"[22] This evidence, in my view, offers very little indication as to the

physical ability of the plaintiff to work in the future. I agree that
immediately after the accident she was unable to work as a domestic
maid. How could she when she was still recovering from the injuries
she sustained. Further, it is also true that she could not seek any other
employment without a work permit in this country. But here what is
important is her ability to work in future either here or back in
Indonesia. Could she still work in a job that equals her pay before the
motor accident or would she be likely to get less ? From what is

disclosed of her medical condition, she is not totally immobile or
suffering from some severe permanent impairment that would restrict
her movement to the extent that she can neither work nor is forced to
seek a job that pays her less than what she was receiving before the
accident. Without reasonable certainty as to her inability to secure a
job in the future or that she would be receiving less than what she got
before the accident, this claim of the plaintiff for loss of future earning
must fail. The fact that she was not given an extension in her last
employment due to the motor accident resulting in her work permit
not being renewed is only a factor for the consideration in awarding
loss of future earnings. But this alone is insufficient. The plaintiff is
required to prove real substantial loss with reasonable amount of
certainty and towards this, she failed."
(3) Loss Of Earning Capacity
[165] There remains, then, the question of whether the plaintiff is entitled to
loss of earning capacity
[166] As mentioned earlier, learned counsel for the plaintiff requested this
court to consider awarding, in the alternative, loss of earning capacity lest the
plaintiff's claim for loss of future earning be refused. Consequent thereto,
adherence is fastened to the concise passage of principles by Syed Agil
Barakbah FCJ in the Federal Court case of Ngooi Ku Siong (supra), where His
Lordship observed:
"In the absence of such evidence (to prove loss of future earnings) if
the court is satisfied that the plaintiff has suffered a loss of earning
capacity, he will be awarded a sum as part of the general damages for
his disability suffered as a result of the injuries sustained, instead of
compensation for loss of future earnings. It arises where there is a
residual risk that the plaintiff might be thrown out of work altogether
at some future date. The risk must be real and not speculative or
fanciful."
[167] Of parallel relevance, similar consideration was laid down in the

Supreme Court case of Yang Yap Fong & Anor v. Leong Pek Hoon & Anor
[1987] 1 MLRA 187; [1987] 2 MLJ 201; [1987] CLJ (Rep) 419, where Syed
Agil Barakbah SCJ observed:
"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.
[168] The preceding precedents of the highest authority were cited by James
Foong JCA (later FCJ) in the Court of Appeal case of Sumarni (supra), where
the imperative tone to His Lordship's judgment reflects:
"it is explicit that before an award of this nature can be entertained,

there must be evidence to show that the plaintiff will face a real or
substantial risk in her earning capacity being affected in the future due
to the disability she sustained from the motor accident. The medical
report did say that the plaintiff will suffer a permanent limp of her left
leg which may prevent her from standing and walking for long
periods. This would certainly be a handicap but is not a complete
impairment to prevent her from performing other tasks. But since her
starting job level was only that of a domestic help, the prospect of her
getting another job that would pay her the same as what she was
earning before the motor accident is low. In my view, her physical
shortcoming will expose her to receiving less in the future than what
she obtained before the accident. Mr S Sivanesan has submitted a sum
of RM60,000 for this head of damages. I think this is far too excessive.
It would be fairer if a sum of RM20,000 is awarded to the plaintiff's
loss of earning capacity."
[169] In a similar vein, I am mindful of the succinct statement of principles by

Muniandy Kannyappan JC in the case of Lariman Niuk v. Mohd Helmieza
Suhaimi [2020] MLRHU 1777, concerning the loss of earning capacity, which
merits quotation:
"...
(iii) Loss of earning capacity arises if there is substantial or real risk

that the victim of an accident might be thrown out of work altogether
at some future date. The risk must be real and not fanciful. (See Ngooi
Ku Siong v. Aidi Abdullah [1984] 1 MLRA 200; [1985] 1 MLJ 30;
[1984] 1 CLJ (Rep) 294 at p 33, FC). The victim will sometime during
the end of his working life lose his job or get a less paid employment
because of the injuries sustained. (See case of Chan Sau Chan v. Choi
Kong Chaw & Yap Yun Chan [1990] 3 MLRH 213; [1991] 1 CLJ 297
at p 307).
(iv) It is abundantly clear that the legislature vis Act 67, in its own
wisdom decided that an injured person ought not to get any damages
in a claim either for loss of future earnings or loss of earning capacity
unless before the accident (at the date of accident) he was in fact
receiving earnings. To hold otherwise, would mean that the court is
creating law to provide for something which clearly the legislature has
no intention to do. (See Salim bin Dawang v. Lim Kat Kang [1984] 1
MLRH 552; [1986] 2 MLJ 50; [1985] CLJ (Rep) 735 at p 52).
(v) Before a claim for loss of future earning capacity can be

considered, there must be evidence to support it. A claim for loss of
future earning capacity usually arises where the claimant is in
employment at the time when the claim falls to be evaluated. The

claim is to cover the risk that, at some future date during the claimant's
working life, he will lose his employment and will then suffer financial
loss because of his disadvantage in the labour market. Evidence will
also be generally required in order to show how far the claimant's
earning capacity would be adversely affected by his disability. This
will depend largely on the nature of his employment. (See Chan Wai
Tong v. Li Ping Sum [1985] AC 446 at p 459 - 460, PC)."
Analysis
[170] Upon sedate reading of the prevailing pieces of evidence, I respectfully

attach considerable credence to the argument advanced by learned counsel for
the plaintiff. His argument, as I see it, merely appears to be preaching to the
choir of the established medical opinion laid down in the specialist report.
Indeed, they were replete with the relevant details regarding the plaintiff's
physical condition post-accident, which perforce appears indicative that the
plaintiff would face difficulty to undertake jobs and activities those require lots
of standing, walking, running, jumping, climbing, squatting and carrying of
weights. As emerges from the Plaintiff's Specialist Report, the plaintiff "... has
permanent disabilities of the right thigh, the right knee, the right leg and the
right ankle." The preceding physical constraints, no doubt, restrict his
productive engagement in any work-related activities necessitating fine and
gross movements. That, resultantly, affects his ability to meet the inherent
requirements of his pre-injury role.
Summing Up
[171] The broad swathe of evidence remains explicit that the Company,
though it had not terminated the plaintiff from his employment, but assigned
him no work as there was no "desk job" available at its premises. As the fact
tellingly stands, that is due to the plaintiff's inability to perform his duties
because of the injuries sustained in the accident. That, in my view, is a clear
indication that the injuries had adversely impacted upon his employability.
Taken in the round, the consequential effects of his injuries would, in the
circumstances, leave the plaintiff with a vain hope of finding a job, like the one
he had been engaged in for several months with the Company, which ideally
suits his skills and abilities. That, essentially, is a corresponding decrease in his
ability to earn due to the effects of the injuries sustained in the accident. It,
therefore, seems clear to my mind that his physical shortcoming will expose
him to receive less in the future than what she obtained before the accident" to
which James Foong JCA (later FCJ) alluded to in Sumarni (supra). Given the
peculiarities of the case, and considering the principles of law enunciated in
the earlier-cited authoritative precedents governing loss of earning capacity, I
am fortified in my finding that there is a real or substantial risk that the
plaintiff's earnings will be adversely affected in the future.

the authorities cited in the argument. On the same score, I draw reference to
the High Court case of Gunalan Chandakesan & Anor v. Tamil Arusu Velu
[2014] MLRHU 542, where Lim Chong Fong JC (now HCJ) awarded
RM25,000.00 for loss of earning capacity. As well, I tethered reliance to the
Kim Lin Chan v. Lee Hua Sing [2019] MLRHU 1230, where Evrol Mariette
Peters JC affirmed the award of RM30,000.00 granted by the Sessions Court
Judge for loss of earning capacity. I furthermore refer to the case of
Muhammad Asyraf Zulkipli & Anor v. Muhammad Hafiz Ezman Ismail & Ors
[2019] MLRHU 336, where Chan Jit Li JC (now HCJ) awarded RM35,000.00
for loss of earning capacity.
[173] Considering the preceding argument, the prevailing evidence, the judicial
award a sum of RM30,000.00 for loss of earning capacity.
(4) Future Treatments
[174] Learned counsel for the plaintiff submitted that the plaintiff is entitled to
seek future treatments at the hospital of his choice. Arguing further, he
asserted that the costs should be awarded with a one- third reduction.
[175] In response, learned counsel for the defendants submitted an amount of

RM1000 for the cost of future surgery.
Claim For Future Treatments
[176] Having sketched in the rival arguments, I find it pivotal, by way of an

opening move, to analyse the position of the law governing the claim for
future treatment. Elucidating the relevant subject with utmost clarity, the
Federal Court, speaking through Abdull Hamid Embong FCJ in the case of
Inas Faiqah Mohd Helmi (supra), observed:
"[36] In this respect, we are in agreement with the contention of the

appellant that the case of Chai Yee Chong is not relevant to the
present case. We respectfully say that the Court of Appeal had erred in
coming to its conclusion that the award made by the learned trial
judge was in line with the current practice on the strength of the
decision in Chai Yee Chong, which is a case concerning a claim for
past private medical treatment. In determining a claim for future
medical treatment, be it at a private, or at a public hospital, the
question of reasonableness in making such a claim should always be
the paramount consideration. The plaintiff not only needs to justify,
for instance, why he chooses treatment at a private hospital over a
public one, but he must also show that the amount claimed for such
treatment is reasonable. Of course, this can be satisfied by the
production of compelling evidence for that purpose. It is to be noted
that in claiming for the cost of future damage in Gleneagles, evidence
was led as to the cost of rehabilitation care of the first respondent and
the costing was obtained from the private hospitals/centres.
[37] Nevertheless, in the present case, we found that the learned trial
judge had considered the reasons advanced by the appellant in
claiming for the cost for future medical treatment at the private
hospital and was not persuaded to award the full cost claimed by the
appellant. The learned trial judge had given her reasons for awarding
only one - third of the amount claimed by the appellant. We affirm the
award made by the learned trial judge in this respect, but on a different
ground. We found that the amount awarded by the learned trial judge
was fair and reasonable, and we do not find any justification to disturb
the same."
[177] So too, I draw inspiration from the eloquent observation of Harminder

Singh Dhaliwal JCA (now FCJ) in the Court of Appeal case of Muhammad
Yassein Zuliskandar (A Child Suing Through His Father and Next Friend;
Zuliskandar Md Pechor) v. Kerajaan Malaysia & Ors [2019] 1 MLRA 566;
[2019] 4 CLJ 280; [2018] 6 AMR 767, wherein His Lordship, having cited the
Federal Court case of Inas Faiqah Mohd Helmi (supra) observed:
"[9] This issue concerns the application of the so - called "one - third
rule" whereby medical costs and expenses incurred in a private
hospital claimed by plaintiff would not be allowed in full if it can be
shown that such treatment was available at government hospitals. In
this context, it was submitted by the plaintiff that the learned DR has
misunderstood the decisions of this court in Chai Yee Chong v. Lew
Thai [2004] 1 MLRA 195; [2004] 2 MLJ 465; [2004] 2 CLJ 321 ("Chai
Yee Chong") and Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin
& Ors And Another Appeal [2013] 5 MLRA 114; [2013] 4 MLJ 785;
[2013] 8 CLJ 449 ("Gleneagles Hospital") to mean that a claimant can
recover only one - third of the cost of private healthcare medical
expenses.
[10] In this regard, we agree that in Chai Yee Chong, no such "one -
third principle" was set out. Indeed, as was pointed out in the case
itself, no such principle is provided under any written law. It has only
become a matter of practice through the adoption of case precedents.
Instead, it was decided that the test of reasonableness should be
applied in deciding whether the claimant is entitled to recover the full
sum of the private healthcare medical expenses.
[12] In other words, the test of reasonableness applies in two ways.

First, the plaintiff must justify why he chooses treatment at a private
hospital over a public hospital. Secondly, the plaintiff must show that
the cost of treatment at a private hospital was reasonable. In
determining whether it is, or was, reasonable or justifiable in resorting
to treatment at a private hospital, there can be no fixed or inflexible
rules simply because of the myriad of reasons or circumstances why
treatment is sought or intended to be sought at a private hospital.
[13] For instance, a plaintiff, immediately after an accident, may be

brought by a Good Samaritan to the nearest private hospital in the
interest of getting quick and early treatment. It may then be unjust to
expect the plaintiff to justify why his claims at the private hospital
ought to be allowed.
[14] There may also be a case where a plaintiff is seriously injured and
his only concern is to seek quick and effective treatment which he or
she thinks is available at the private hospital only. At that moment, the
plaintiff is hardly in a position to undertake a cost - benefit analysis of
any potential claim against possible tortfeasors. In those
circumstances, it may be reasonable to allow such claims.
[15] In the end, there can be no fixed rule. It really depends on the
peculiar circumstances of each case. With the Inas Faiqah decision, a
claim instituted now for medical expenses cannot be denied purely on
the ground that the particular treatment was available at a government
hospital. A holistic consideration of the question of reasonableness is
imperative before any decision can be made on whether such claims
for private medical expenses can be allowed (see also Rohgetana
Mayathevan v. Dr Navin Kumar & Ors And Other Appeals [2017] 3
MLRA 53; [2017] 4 MLJ 102; [2017] 3 CLJ 311)."
[178] And I further heed the following observation by Evrol Mariette Peters JC
(now J) in the case of Kim Lin Chan v. Lee Hua Sing [2019] MLRHU 1230
concerning choice of treatment, wherein Her Ladyship succinctly observed:
[63] There is no hard and fast rule for the injured party to seek
treatment at a Government hospital. Such a demand by the Defendant
only compounds the plaintiff's trials and tribulations, by first
compromising his health, and now, eliminating his right to select a
hospital of his own choice....
[64] I am of the view that this demand is an affront to the minimum

requirement of compassion and empathy. I am guided also by the
words of James Foong J in Chong Kam Siong v. Herman Baharuddin
[1992] 4 MLRH 200; [1995] 2 CLJ 413:
Various authorities on this point were forwarded for my

consideration but I find them to be contradictory with no firm
guiding principles...
In an unreported case of Amamuthu a/l Suppiah v. Mohamad

Abu bin Hussin (JB High Court Civil Suit No: 1109 - 85) Mr
Justice LC Vohrah awarded a sum of S$27,811 as medical
expenses incurred by the plaintiff for treatment in Singapore.
An appeal against this decision was made by the defendant to
the Supreme Court and the Supreme Court rejected the
appeal.... The issue before this court is therefore (a) whether
the plaintiff is entitled to medical treatment in a private
hospital...
... Relating to the first question and after careful

consideration... In my opinion, an ordinary citizen of this
country has a right to choose medical treatment for his injuries

and illness from whatever and from wherever. The only
limitation to this freedom are economic and availability
factors.
Applying the aforesaid principle of the freedom of choice, an

injured victim in a road accident should also be granted the
same right to choose where and by whom he wishes to be
treated. When such patient seeks medical treatment at the
material time, his immediate objective is to cure himself
speedily. Next in his mind, would be whether he can afford
such treatment and the availability of medical specialist,
equipment and treatment from the establishment he seeks to
be admitted there is no certainty he would succeed in his claim
for recovery of his expenses...For the reasons aforesaid, I find
that the plaintiff in this case is entitled to seek medical
treatment other than in a government hospital."
Narrowing The Issues
[179] Viewed through the lens of the earlier-quoted observations, I proceed to

run through the arguments at the height of concern. Reduced to its barebone,
it boils down to the following two issues, namely:
(i) whether the plaintiff has justified why he chooses treatment at the
private hospital; and
(ii) whether the plaintiff has shown that the amounts claimed for the
respective treatments are reasonable.
To these issues, I shall immediately advert.
(i) Whether The Plaintiff Has Justified Why He Chooses Treatment At The
Private Hospital?
[180] Having considered the above-cited authoritative statement of principles

and weighing them with the prevailing facts and circumstances of the present
case, I respectfully find that the plaintiff had justified his choice in seeking
treatment at the private hospital for the following brief reasons:
[181] First, as is markedly noticeable from the evidence, the plaintiff's

specialist suggested intensive physiotherapy treatment and implants removal
surgery. However, he still has not undergone the respective surgery as he is
financially incapable. His witness statement states:
"S: Adakah En ada menjalani rawatan MRI, fisioterapi dan

pembedahan seperti yang dinasihatkan oleh pakar?
J: Tidak, saya tidak mempunyai wang yang mencukupi untuk

menjalani MRI, fisioterapi dan pembedahan seperti yang dinasihatkan
oleh pakar."
[182] Second, there was no challenge nor dispute ever led by learned counsel
for the defendants at any stage of the trial assailing the plaintiff's justifications
of his choice. His evidence, as I see it, remains unchallenged and therefore
stands.
(ii) Whether The Plaintiff Has Shown That The Amounts Claimed For The
Respective Treatments Are Reasonable?
[183] So far as concerns the amounts claimed for future treatments, they
compose the following four headings, to which I now turn.
(i) Intensive Physiotherapy Treatment

for the intensive physiotherapy treatment.
awarded for the intensive physiotherapy treatment.
[186] The plaintiff's witness statement (PS - SP2) reads:
"S: Selepas doktor pakar Dr Haji Mohd Noor Manukaran melakukan

pemeriksaan, adakah doktor pakar Dr Haji Mohd Noor Manukaran
ada menasihati En untuk menjalani pembedahan...?
J: Ya, doktor tersebut ada menasihati saya untuk menjalani:
.....
... Rawatan Fisioterapi...".
[187] Now, I shall proceed to dissect the specialist reports at bar. The Plaintiff's
Specialist Report states:
"6)... A course of intensive physiotherapy is recommended to stabilize

the joint. The physiotherapy will cost about RM2500."
[188] The imperative tone of the specialist report reflects the suitability of
intensive physiotherapy treatment. In his report, the plaintiff's specialist stated
the costs stand at RM2,500.00.
[189] Considered in total, I respectfully find the argument set forth by learned
counsel for the plaintiff to be dripping with force for the following brief
reasons:
[190] First, and as is trite, the plaintiff must "show that the amount claimed for
such treatment is reasonable" as Abdull Hamid Embong FCJ put it in Inas

Faiqah Mohd Helmi (supra). The plaintiff, therefore, bears the duty to lead
compelling evidence, proving the reasonableness of the amount. As addressed
above, learned counsel for the plaintiff relied on the plaintiff's Specialist
Report, in claiming for the amount of RM2,500.00. To my mind, the amount
so posited is not without evidential support. Indeed, it derives from the figure
stated by the plaintiff's specialist, who gave his estimation in his capacity as the
Consultant Orthopaedic Surgeon at Manu Orthopaedic & Trauma Clinic,
where the plaintiff decided to get the respective treatment. Putting it
differently, such an amount was not plucked out of thin air but rather stemmed
from an authoritative source.
[191] Second, lest the amount proffered by the plaintiff's specialist for the
respective treatment was challenged to be unreasonable, credible challenges
should be presented assailing the reasonableness of same. Upon careful
consideration of her argument, I respectfully find that learned counsel for the
defendants mounted no credible challenge to assail the reasonableness of the
amount suggested by the plaintiff's Specialist.
[192] Considering the preceding arguments, the prevailing evidence, the facts
and circumstantial peculiarities of the case in its entirety, I respectfully find
that the plaintiff had shown that the amount claimed is reasonable. I,
therefore, award the sum of RM2,500.00 for the implant removal surgery.
(ii) Implants Removal Surgery

for implants removal surgery.
[194] Contrariwise, learned counsel for the defendants an amount of

RM1,000.00 for the respective surgery.
[195] The plaintiff's witness statement (PS - SP2) reads:
"S: Selepas doktor pakar Dr Haji Mohd Noor Manukaran melakukan

pemeriksaan, adakah doktor pakar Dr Haji Mohd Noor Manukaran
ada menasihati En untuk menjalani pembedahan...?
J: Ya, doktor tersebut ada menasihati saya untuk menjalani:
.....
... pembedahan...".
[196] Next, I shall descend to the medical report directly under scrutiny. The
Plaintiff's Specialist Report states:
"13) The metallic implants in the right femur will require removal in
due course. This will involve an operation under general anaesthesia.
It will cost about RM7,500.00."
[197] On overall assessment, I respectfully find the argument set forth by

learned counsel for the plaintiff to be of significant merit for the following brief
reasons:
[198] First, so far as concerns the costs for the future treatment, the plaintiff
must "show that the amount claimed for such treatment is reasonable" to
which Abdull Hamid Embong FCJ enunciated in Inas Faiqah Mohd Helmi
(supra). The plaintiff, therefore, bears the duty to lead compelling evidence,
proving the reasonableness of the amount. As addressed above, learned
counsel for the plaintiff relied on the Plaintiff's Specialist Report in claiming
for the amount of RM7,500.00. To my mind, the amount so posited is not
without evidential support. Indeed, it derives from the figure stated by the
plaintiff's specialist, who gave his estimation in his capacity as the Consultant
Orthopaedic Surgeon at Manu Orthopaedic & Trauma Clinic, where the
plaintiff decided to get the respective treatment. Putting it differently, such an
amount was not plucked out of thin air but rather stemmed from an
authoritative source.
[199] Second, lest the amount proffered by the plaintiff's specialist for the
respective treatment was challenged to be unreasonable, credible challenges
should be presented assailing the reasonableness of same. Having analysed her
argument in its entirety, I respectfully find that learned counsel for the
defendants mounted no credible challenge to assail the reasonableness of the
amount suggested by the plaintiff's Specialist.
[200] Third, the mere fact that the quantum set forth by learned counsel for the
plaintiff is higher than that of the learned counsel for the defendants', in the
circumstances, is insufficient, if not of no consequence, to render it
unreasonable.
[201] Considering the preceding arguments, the prevailing evidence, the facts
and circumstantial peculiarities of the case in its entirety, I award the sum of
RM7,500.00 for implants removal surgery.
One-Third Reduction
[202] Another aspect that deserves mention is the prayer concerning the one-
third reduction, to which I shall now turn. In his written submission, learned
counsel for the plaintiff prayed for a one-third reduction of the total amount
awarded for future treatments. Addressing, albeit briefly, the issue at hand, I
find no better way than quoting the stellar observations that "In determining a
claim for future medical treatment, be it at a private, or at a public hospital, the
question of reasonableness in making such a claim should always be the
paramount consideration" to which Abdull Hamid Embong FCJ alluded to in
Inas Faiqah Mohd Helmi (supra) and "...we agree that in Chai Yee Chong, no
such "one-third principle" was set out. Indeed, as was pointed out in the case
itself, no such principle is provided under any written law. It has only become
a matter of practice through the adoption of case precedents. Instead, it was
decided that the test of reasonableness should be applied in deciding whether
the claimant is entitled to recover the full sum of the private healthcare
medical expenses", to which Harminder Singh Dhaliwal JCA alluded to in
Muhammad Yassein Zuliskandar (supra). The preceding observations, from my
viewpoint, sufficiently put the prayer by learned counsel for the plaintiff into a
quietus. And equally respectfully, I therefore find it difficult to see how I
could, let alone why I should, order a one-third reduction of the total amount
awarded for future treatments.
(5) Pain And Suffering For Future Operation
[203] Learned counsel for the plaintiff submitted that the plaintiff's specialist
suggested implants removal surgery. He submitted an amount of RM5,000.00
for pain and suffering for the future operation. In support, he cited the case of
Shanmugam Gopal v. Zinal Abidin Nazim & Anor [2003] 3 MLRH 410; [2003]
3 MLJ 76; [2003] 8 CLJ 729, wherein Mohd Noor Abdullah J (later JCA)
observed:
"The next issue raised by the appellant's counsel was with regard to
the failure of the Sessions Court judge to make an award for pain and
suffering for the future operation which the plaintiff had to undergo for
the removal of the plate and screws. Undoubtedly, no person likes to
undergo an operation. The anxiety caused is terrible. The plaintiff will
have to travel back and forth from the hospital for dressing of the
surgical wound and the removal of stitches....
Although this is a future operation, the award for pain and suffering
has to be made at the date of the decision so as to bring about the
finality of the claim."
awarded for pain and suffering for future operation.
[205] Assessing the award to be granted, I am alive to the fact that the
Plaintiff's Specialist stated in his report that the metallic implants in the
Plaintiff's right femur require removal. That, in my respectful view, certainly
entitles the Plaintiff's claim under this heading. In so awarding, I place
emphasis on the strength of the authorities cited in the arguments. On the
same score, I draw reference to the High Court case of Nur Ali v. Varghese
Mathew & Satu Lagi [2018] MLRHU 98, wherein Ahmad Kamal Md Shahid
JC (now HCJ) affirmed the award of RM15,000.00 for pain and suffering for
three future operations granted by the Sessions Court Judge. Further, I tether
reliance to the High Court case of Shanmugam Gopal (supra) as cited by the
plaintiff, wherein Mohd Noor Abdullah J (later JCA) reversed the Sessions
Court Judge's decision in not granting the award for pain and suffering for
future operation and awarded RM5,000.00.
[206] Further thereto, I have well in mind the observation of the Federal Court
in the case of Inas Faiqah Mohd Helmi (supra), wherein the Federal Court
dismissed the claimant's appeal against the trial judge's decision in refusing the
award for pain and suffering for future operation in view of the fact that the
award for pain and suffering had earlier been awarded by the trial judge which
was inclusive of the pain and suffering for the future operation. The present
case is, however, the exact opposite.
[207] Considering the preceding arguments, the prevailing evidence, the

comparative awards for similar claim and usual trend, as well as the facts and
the pain and suffering for future operation.
(6) The Plaintiff's Family Members' Travelling Expenses
[208] Learned counsel for the plaintiff submitted that the plaintiff was
admitted to Banting Hospital for treatment for a period of 54 days. He
submitted an amount of RM100.00 as the taxi costs per trip, totalling
RM5,400.00 for his family's transportation expenses for 54 days.
[209] Contrarily, learned counsel for the defendants submitted that no award
should be granted for this heading of the claim. Her words were, her words
were these, "Tiada keterangan dan tiada dibuktikan dan perlu ditolak."
[210] As against that, I now turn to consider the plaintiff's entitlement for his
claim under the present heading.
[211] First, there is no dispute regarding the plaintiff's admission to Banting

Hospital for the period of 54 days. The plaintiff's evidence reads:
"S: Selepas kemalangan En telah dibawa ke mana?
J: Selepas kemalangan, saya telah dibawa ke Hospital Banting dan

telah diwadkan.
S: Berapa hari En berada di wad?
J: Saya berada di wad dari 6 September 2018 sehingga 29 October

2018 selama 54 hari di Hospital Banting."
[212] Second, the plaintiff confirmed in evidence that his family members
visited him in the hospital on a daily basis. His evidence reads:
"S: Sepanjang En berada di wad, adakah keluarga datang melawat En

di hospital?
J: Ya, ada. Keluarga saya datang melawat saya setiap hari.
S: Keluarga En datang dari mana?
J: Keluarga saya datang dari Klang, Selangor."
[213] Third, the plaintiff confirmed in evidence that the travelling costs stand
at RM100.00 per trip. His evidence reads:
"S: Bagaimanakah keluarga datang melawat En di hospital dan

berapakah kos perjalanan ulang-alik pada hari tersebut?
J: Keluarga saya datang dengan menaiki teksi setiap hari dan kos
perjalanan ulang-alik dari rumah ke Hospital untuk satu kali trip
perjalanan adalah RM100.00 untuk setiap satu trip perjalanan."
[214] As submitted by learned counsel for the plaintiff, to which I agree,

learned counsel for the defendants proffered no quibble about it. Obviously,
the above-quoted pieces of evidence were never challenged nor refuted in any
way at the trial. And equally obviously, the plaintiff expressly pleaded the
claim under the present heading in paragraph [5] of his statement of claim.
Suffice it to state, the defendants were made known of the respective claim.
[215] Further, I find comfort from the observation by LC Vohrah J in the High
Court case of Kasirin Kasmani v. The Official Administrator & Anor [1991] 1
MLRH 325; [1991] 2 CLJ (Rep) 800, where His Lordship observed:
"As to the claims for the items of special damages not agreed upon, in
the absence of any proof of actual expenditure in the form of receipt, I
would award the sum of RM560 at the rate of RM20 per day for the
wife's transport and living expenses she had to reside in Johore Bahru
in order to visit the plaintiff a Hospital Sultanah Aminah in Johore
Bahru.... Again, in the absence of actual proof, I would award the sum
of RM400 for her transport expenses for her visits to the plaintiff ay
Hospital Daerah Banting which is near the kampong where she lived."
[216] Considering the preceding arguments, the prevailing evidence, judicial

award the sum of RM5,400.00 for the plaintiff's family's transportation
expenses.
(7) The Plaintiff's Travelling Expenses For Follow-Up Treatment
[217] Learned counsel for the plaintiff submitted an amount of RM100 for
travelling expenses for follow-up treatment per trip, totalling RM1,600.00 for
16 trips. In support, he anchored reliance on the exhibit P6 - detailing the
plaintiff's scheduled follow-up treatments.
[218] In reply, learned counsel for the defendants submitted that no award
should be granted for this heading of claim. More specifically, her words were
these, "Tiada keterangan dan tidak dibuktikan dan perlu ditolak."
[219] The Plaintiff's witness statement (PS-SP2) reads:
"S: Selepas kemalangan itu, adakah En mendapatkan rawatan-

rawatan susulan di mana - mana hospital?
J: Ya, ada di:
- Jabatan Ortopedik Hospital Banting,,,
- Unit Rehabilitasi Fisioterapi - Hospital Banting...
- Klinik Pakar Ortopedik - Hospital Tengku Ampuan

Rahimah..."
[220] As further appears from his witness statement (PS-SP2), the plaintiff
states:
"S: Bagaimana En pergi mendapatkan rawatan susulan dan berapakah

kos perjalanan ulang-alik En pada hari tersebut?
J: Saya pergi dengan menaiki teksi dan kos perjalanan ulang-alik dari
rumah ke Hospital Banting adalah RM100.00 untuk satu trip
perjalanan."
[221] Apparently, the foregoing pieces of evidence were never disputed during
the trial. Equally apparently, the respective proof of follow-up treatments were
marked as exhibits for the Plaintiff. But most apparently, the plaintiff expressly
pleaded the claim under the present heading at paragraph [5] of his statement
of claim. Hence, it appears clear that the defendants were made known of the
respective claim.
[222] I further find favour from the observation by Yusof Abdul Rashid J in
the High Court case of Chan Kim Hee v. Karam Singh & Anor [1980] 1 MLRH
127; [1981] 2 MLJ 273, wherein His Lordship observed:
"The court was of the view that the taxi fare to and from Malacca
General Hospital was about $20... The plaintiff was treated as an
outpatient at the Orthopaedic Outpatient Department of the General
Hospital Malacca. The court was satisfied that the plaintiff made 18
trips for this purpose and awarded a sum of $360 under this item."
[223] Considering the preceding arguments, the prevailing evidence, the

judicial precedent, the facts and circumstantial peculiarities of the case in its
entirety, I award the sum of RM1,600.00 for the plaintiff's travelling expenses
for follow-up treatment.
(8) Hospital Bills
[224] Learned counsel for the plaintiff and the defendants agreed for the
amount of RM910.00. It is, therefore, so awarded.
Conclusion
[225] Considering the factual matrix of the case in a unified fashion, I

respectfully find that the plaintiff had proved, on the balance of the
probabilities, his claim against the defendants. Accordingly, I allow the
plaintiff's claim against them with costs.
[226] With equal respect, I find the first defendant 100% liable for the accident
on the balance of probabilities.
[227] Accordingly, I award the above damages, on a 100% liability basis,

together with interests and costs as per scale.
[228] For the interest, I order as follows:
(i) interest at the rate of 5% per annum for the general damages from
the date of the service of the writ of summons until the date of the
decision;
(ii) interest at 2.5% per annum for the special damages from the date
of the accident to the date of decision (no interest for the costs
awarded for future treatments);
(iii) interest at the rate of 5% per annum for all damages from the date
of the decision until the date of the full and final settlement.
[229] And for the costs, I order the costs according to the scale as set out in the
Rules of Court 2012.

Simon Raj Thevadas Anbalagan - Burden of Proof Neg

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[2022] PILRU 12 v. Haikal Akmal Salihin & Anor pg 1

SIMON RAJ THEVADAS ANBALAGAN

Sessions Court, Sepang

2. Miscellaneous conditions - Degloving injury

4. Miscellaneous conditions - Scars

Date of accident: 6 September 2018

Summary of plaintiff's injuries

1. Pain in the right thigh during cold weather.

2. Internal rotation deformity of the right thing.

3. Pain in the right knee on exertion.

4. Anterior cruciate ligament laxity of the right knee.

5. Pain in the right ankle and the right foot on walking.

6. Shortening of the right leg.

7. Stiffness of the right knee and the right ankle.

8. Equinus deformity of the right ankle.

9. Swelling of the right ankle.

10. Wasting of the right thigh and the right calf.

11. Inability to squat or to sit cross-legged.

12. Inability to walk around freely.

13. Inability to lift heavy weights.

14. Unsightly scars.

Age of the plaintiff

(a) On the date of the accident: Not specified

(b) On hearing date: 31 years old

(a) On the date of the accident: Not specified

(b) On hearing date: Crane driver

(a) On the date of the accident: Not specified

(b) On hearing date: Not specified

100% against the defendant

Award (Based on 100% liability)

(e) Pain and suffering for future operations - RM5,000.00

Case(s) referred to:

Legislation referred to:

Noorhisham Mohd Jaafar SCJ:

[3] And hereinbelow, the reasons.

[5] The material facts are in a short compass.

[12] On 14 August 2019, the plaintiff commenced a negligence action (the

Approaching The Arguments

"101. Burden of proof

[16] And s 102 of the Act reads:

"102. On whom burden of proof lies

The burden of proof in a suit or proceeding lies on that person who

In an action for negligence the onus of proving the allegation

[19] I also find instructive the statement of principles by RK Nathan J in the

"35. On the meaning and application of the term "burden of proof" s

even, ie that any preponderance in the plaintiff's favour had

[23] Given the above authoritative statement of principles, I move to consider

[27] Having sketched in the competing arguments, I shall at present address

(1) Conflicting Versions - Which Version Is More Inherently Probable?

[28] As is conspicuously apparent, there are two conflicting versions regarding

[30] Upon being confronted with two conflicting versions, it is my duty to

One of the dangers of this approach is that it leaves entirely

[31] Considered in light of the afore-cited observation, and weighing them

[32] Addressing the conflicting versions directly in concern, I find it apt to

(i) Sketch Plan

J: S K sebenarnya Serpihan Kenderaan terdapat di tepi kanan bahu

S: Tepi kanan bahu jalan?

S: Maksudnya serpihan kenderaan ini di laluan sah motosikal, betul?

(ii) Photographic Evidence

Sarjan setuju dengan saya bahawa memanglah Rajah Kasar memang

S: Gambar memberikan satu penjelasan yang lebih jelas tempat